United States v. Merrick

• Decision Date: 25 August 1972
• Docket Number: No. 71-1460.,71-1460.
• Citation: 464 F.2d 1087
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee W. MERRICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

464 F.2d 1087 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Lee W. MERRICK, Defendant-Appellant.

No. 71-1460.

United States Court of Appeals, Tenth Circuit.

July 19, 1972.

Rehearing Denied August 25, 1972.

COPYRIGHT MATERIAL OMITTED

Max D. Wheeler, Tax Div., Dept. of Justice (James L. Treece, U. S. Atty., and Richard J. Spelts, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Melvin A. Coffee, Denver, Colo. (Robert D. Inman, and Joseph H. Thibodeau, Denver, Colo., on the brief), for defendant-appellant.

Before BREITENSTEIN, SETH, and McWILLIAMS, Circuit Judges.

BREITENSTEIN, Circuit Judge.

A jury found defendant-appellant guilty of Counts II and IV of an indictment charging evasion of federal income taxes for the years 1963 and 1964 in violation of 26 U.S.C. § 7201. He appeals from concurrent sentences of one year on Count II and 18 months on Count IV.

The charges were based on failure to report specific items of income received during the years in question. Defendant owned and operated an animal by-products plant near Greeley, Colorado. The plant processed dead and "downer" animals. The principal product was boneless beef used in pet foods. In 1963-4, defendant sold quantities of boneless beef to Laurents Packing Company, a sausage maker in Fort Wayne, Indiana. Defendant insisted that all payments by Laurents be in cash. The arrangement was that Laurents would issue a check, have it cashed, and give the proceeds to the person who delivered the meat. Defendant did not report the sums so received in his income tax returns.

The first claim is that the delay between the commission of the offenses in 1963 and 1964 and the trial in 1971 denied defendant his Sixth Amendment right to a speedy trial and his Fifth Amendment right to due process. The investigation of defendant's tax returns was referred to the Intelligence Division of the Internal Revenue Service in 1963 and an IRS agent first interviewed defendant in 1965.

Defendant was first charged in a complaint filed April 11, 1969. A preliminary hearing was held four days later. He was bound over for trial and his bond was continued. An indictment was returned on December 4, 1969, and later dismissed for technical reasons. A second indictment charging the same offenses was returned October 6, 1970. Thereafter, defendant filed 14 motions covering a wide range of legal issues and including a November 19, 1970, motion to dismiss for delay in prosecution. The record does not sustain defendant's claim that he was denied a meaningful hearing on any of these motions. Defendant made no request at any time for a speedy trial. The jury trial was held on March 22-26, 1971.

In United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, the Supreme Court said that the Sixth Amendment speedy trial provision "has no application until the putative defendant in some way becomes an `accused.'" Defendant in the case at bar became an accused when the April 11, 1969, complaint was filed. We are not impressed with the argument that in an income tax case the accusatorial stage begins when the investigation is focused on the accused by referral of the case to the Intelligence Division. In Marion, business records were delivered to the United States Attorney's office and defendant was interviewed in the summer of 1968. 404 U.S. at 309, 92 S. Ct. 455. The indictment was returned in April, 1970. Ibid. On these facts the Court held that the speedy trial provision was not engaged until indictment. Accordingly, we are concerned with what occurred after the filing of the complaint.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the Court considered the speedy trial provision in its application to a murder conviction in a trial held more than five years after the arrest of the accused and found no constitutional deprivation. In so doing, the Court approved a balancing test in which the conduct of both prosecution and accused is weighed on an ad hoc basis. Although not excluding other factors, the Court identified four as pertinent. They are: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at ___, 92 S.Ct. at 2192.

The pertinent Sixth Amendment delay was between the filing of the complaint on April 11, 1969, and the start of the trial on March 22, 1971. The December 4, 1969, indictment was dismissed on June 9, 1970, on motion of the United States Attorney because of violation of grand jury secrecy. Defense counsel was present at the presentation of the motion to dismiss. Among other things he said that it would be unfair to continue the personal recognizance bond if the indictment was dismissed. The trial court agreed. The breach of grand jury secrecy required that the government await the impaneling of a new grand jury. The second indictment was returned on October 6, 1970. A bench warrant was issued and defendant released on an unsecured bond. Various defense motions were filed on November 19, and heard and decided on November 25. Supplemental motions were filed and decided in March, 1971.

Thus we have a total delay of less than two years, a reasonable explanation of the necessity for reindictment, a defendant who at all times was released on an unsecured bond, a prompt disposition of defense motions, and no request by defendant for trial. We are left with the claim of prejudice to the defendant. This involves both Fifth and Sixth Amendment rights. See Marion, 404 U.S. at 325-326, 92 S.Ct. 455, 30 L.Ed.2d 468, and Barker, 407 U.S. at 514, 92 S. Ct. at 2182.

Marion suggests two criteria for determination of whether due process has been violated by delay in prosecution. They are whether the delay "caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 404 U.S. at 324, 92 S.Ct. at 465. The record contains nothing which suggests that the government delayed to secure tactical advantage. The question is whether defendant had a fair trial.

The first claim of prejudice is based on the destruction in 1968 and unavailability of the records of the Laurents Company, the purchaser of the boneless beef diverted from pet food to sausage production. The two men who kept the records testified as government witnesses and were subject to cross-examination by defense counsel. The claim is that the missing records could have been used to test the reliability and credibility of their testimony. Nothing suggests that they would have helped the defense otherwise. The defense made no effort to rebut the testimony of the Laurents' employees.

Reliance is also had on the unavailability of two witnesses because of death. Both were prospective government witnesses. One, Mrs. Woertendyke, was defendant's bookkeeper and before her death gave an affidavit which was made available to defense counsel, who did not take advantage of the principle recognized in United States v. Brown, 10 Cir., 411 F.2d 1134, 1137, by the offer of the affidavit into evidence. The other, a Mr. Reuter, died on April 21, 1964, after a long illness. We find nothing to show that either would have given any specific exculpatory testimony favoring defendant. Finally, we have the claim that memories had dimmed. This relates basically to the testimony of the Laurents' employees. Their uncertainty as to various details hurt the government, not the defendant. Defense counsel were furnished with the affidavits which these witnesses had given the government and with their grand jury testimony. The record does not reveal the loss to the defendant of any exculpatory evidence. The charged offenses arose from concealment and nondisclosure, which made difficult the government's investigation and which minimize the claim of prejudice from delay. Cf. Nickens v. United States, 116 U.S.App. D.C. 338, 323 F.2d 808, 810 n. 2, cert. denied 379 U.S. 905, 85 S.Ct. 198, 13 L. Ed.2d 178. We are convinced that defendant had a fair trial and was deprived of no Fifth or Sixth Amendment rights.

After a hearing the trial court denied defendant's motion to suppress certain evidence. He claims that an IRS agent failed to give him an adequate Miranda warning before his first interview. The trial court held that the warning was adequate and that defendant voluntarily waived his rights. We agree.

The differences, if any there be, between Hensley v. United States, 10 Cir., 406 F.2d 481, 484, and United States v. Lockyer, 10 Cir., 448 F.2d 417, 422, need not be resolved here. The interview was the first between an agent and the defendant after the case was referred to the Intelligence Division. Defendant was not in custody. The agent told him that he was the subject of a criminal investigation, that he had a right to consult and appear with a lawyer, that anything he said would be used against him in a later prosecution, and that he need not answer questions put to him. Nothing more is required by United States v. Dickerson, 7 Cir., 413 F.2d 1111, upon which defendant relies heavily. The efforts of defense counsel to persuade us that defendant was confused and did not understand his rights are not impressive. Defendant's statements during the interview indicated an understanding of his rights and he himself terminated the...