United States v. Perez, 16536.

• Decision Date: 31 July 1968
• Docket Number: No. 16536.,16536.
• Citation: 398 F.2d 658
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julian PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

398 F.2d 658 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Julian PEREZ, Defendant-Appellant.

No. 16536.

United States Court of Appeals Seventh Circuit.

July 31, 1968.

Max Cohen, Gary, Ind., for appellant.

Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., for appellee.

Before CASTLE, Chief Judge, HASTINGS, Circuit Judge, and KNOCH, Senior Circuit Judge.

KNOCH, Senior Circuit Judge.

Julian Perez, defendant-appellant, and two co-defendants were indicted on a charge of bank robbery in violation of Title 18 U.S.C. § 2113(d) in that on November 20, 1961 by force and violence they took a sum in excess of $69,000 belonging to a bank whose deposits were insured by the Federal Deposit Insurance Corporation, in the course of which they assaulted two persons whose lives they put in jeopardy by use of a pistol. The indictment was returned June 23, 1965; an information was filed in April 1965.

In December 1965 one co-defendant, Jesse Paramo, pleaded guilty. Shortly thereafter the second co-defendant, Manuel Zurita was tried and found guilty.

The defendant-appellant was serving a sentence in the Arkansas State Penitentiary when the information was filed. In June 1965 a federal warrant was served on him there. On his release from the Arkansas State Penitentiary on March 10, 1967 he was taken in custody and returned to the Northern District of Indiana to answer this charge. After a jury trial he was found guilty and sentenced to serve twenty years.

The sole error charged is denial of defendant's motion to dismiss based on alleged denial of a speedy trial by failure of the government to take affirmative action to bring him to trial earlier.

The sufficiency of the evidence to sustain a conviction is not questioned. There was evidence that the three defendants obtained entry to the home of the bank manager on a pretense of being deputy sheriffs, that they held him and his wife captive all night, that in the morning appellant and Zurita forced the bank manager to open the vault and night depository and left him in the bank bound to a pipe. The third co-defendant Paramo testified that he remained in the bank manager's home for about fifteen minutes with the wife and then left.

Appellant contends that he was prejudiced by the delay in trial. He did not testify. Evidence was offered to show he was at work on the day of the robbery November 20, 1961, a Monday. His wife testified that he was at home the night of November 19, 1961, a Sunday night, because he had never stayed away all night at any time since they were married. She said he always worked on Mondays because Tuesday was his day off during the week in 1961.

Appellant argues that he was deprived of the helpful testimony of witnesses who at the time of the trial were no longer available (none such are mentioned, however) or whose recollection had become obscure.

Two fellow employees testified that they thought that Tuesday was the appellant's day off in 1961 but neither could remember positively because of the lapse of time. A work record showed that appellant worked forty hours during a period which included Monday, November 20, 1961, but it did not indicate which days he worked.

It is mere conjecture that these witnesses would have had clearer recollections in December 1965 and would have given more compelling testimony. On rebuttal F.B.I. Agent Rene J. Dumaine testified to a contemporary record of a statement by one of those witnesses, Albert Specht, the cashier where appellant worked, who on October 21, 1963, said that Monday was the appellant's regular day off. At the trial Mr. Specht did not recall making that statement. A partner in the concern, Mitchell Obuchowski on a later occasion had first told Agent Dumaine that appellant's day off was Tuesday, and then had come back after a conversation with Edward Rzeznick, another employee (who testified at the trial) and told Agent Dumaine that it was Monday. We find no indication of any substantial prejudice resulting from the delay, as claimed.

Appellant complains that he was deprived of his eligibility for parole in Arkansas because of the federal detainer placed against him. As noted in the colloquy at the time of passing sentence, there is no assurance or even indication from the record that appellant would have been paroled in the minimum time had the hold order not been on file.

Appellant contends further that he was deprived of the possible benefit of having the Trial Judge order the federal sentence to run concurrently with the Arkansas sentence. However the Trial Judge in this case commented on this point in passing sentence and clearly stated that he was taking this factor into consideration and was giving appellant full credit for the time served in Arkansas.

Both parties cite United States v. Simmons, 2 Cir., 1964, 338 F.2d 804, where the Court (at page 807) set out four relevant factors for consideration of a claim that speedy trial under the Sixth Amendment was denied: (1) length of delay, (2) reason for delay, (3) prejudice to defendant, and (4) waiver, if any.

In June 1964, co-defendant Paramo, while hospitalized for a period of about a year in a tuberculosis hospital, made a confession implicating the other two co-defendants, and was arrested on release from that hospital in April 1965.

It is apparent from the testimony of the bank manager and from that of Special Agent Dumaine that the federal agents and the local police were engaged, continuously from the date of the crime, in efforts to identify the offenders. The confession of Paramo was a turning point in the investigation but did not in itself terminate that investigation.

The District Court spoke of his own recollections of the Zurita trial and said that the delay could not be charged to the government because of lack of "sufficient identity and evidence" to warrant earlier indictment.

Appellant contends that the State of Arkansas could not have refused to deliver him on a writ of habeas corpus ad prosequendem...