United States v. White

• Decision Date: 17 December 1973
• Docket Number: No. 73-1492.,73-1492.
• Citation: 488 F.2d 660
• Parties: UNITED STATES of America, Appellee, v. William Lawrence WHITE, Jr., a/k/a Billy White, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

488 F.2d 660 (1973)

UNITED STATES of America, Appellee, v. William Lawrence WHITE, Jr., a/k/a Billy White, Appellant.

No. 73-1492.

United States Court of Appeals, Eighth Circuit.

Submitted December 14, 1973.

Decided December 17, 1973.

Gary B. Garrison, Des Moines, Iowa, on brief for appellant.

Allen L. Donielson, U. S. Atty., and Robert L. Fanter, Asst. U. S. Atty., Des Moines, Iowa, on brief for appellee.

Before GIBSON and ROSS, Circuit Judges, and SMITH, Senior District Judge^*.

GIBSON, Circuit Judge.

Defendant, William Lawrence White, appeals his jury conviction on a charge of distribution of heroin in violation of 21 U.S.C. § 841(a)(1).¹ He raises four contentions of error on appeal: (1) the District Court erred in giving a flight instruction; (2) the Government's failure to call the informant as a witness deprived him of a fair trial; (3) the defendant's motion to dismiss based upon a delay in filing charges should have been granted; and (4) his motion to dismiss due to a delay in trial caused by a withdrawal of a stipulation by the Government should have been granted. The facts necessary to a resolution of these issues will be set out in the course of this opinion.

I. The Flight Instruction

The defendant argues that it was reversible error to instruct the jury that flight could be considered as evidence of guilt.² The transaction with which defendant was charged occurred September 27, 1972. A complaint was filed March 7, 1973, and an arrest warant was issued by a United States Magistrate the same day. It was during the attempted arrest of defendant pursuant to this warrant that the flight occurred. March 7th, at some time between 11:00 p. m. and midnight, the four agents of the Drug Abuse and Law Enforcement Agency, who had established surveillance of defendant's residence earlier in the evening, observed defendant walking in their direction across the street from their position in their car. As he approached, Agent Harker testified that he stepped from the car, identified himself as a federal agent, and said he had an arrest warrant for defendant's arrest. The defendant then began running from the agents and was caught a block and a half away. Defendant does not deny that he was in flight, although he does dispute that he was told they were federal agents. He testified that he ran because there were several men in the car and he didn't know any of them or their business with him.

This circuit has recognized the propriety of introduction of evidence regarding flight and instructing the jury thereon. Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966); Gicinto v. United States, 212 F.2d 8, 11 (8th Cir.), cert. denied, 348 U.S. 884, 75 S.Ct. 125, 99 L.Ed. 695 (1954). And it is generally recognized that such a procedure is proper in appropriate cases. See II Wigmore on Evidence § 276 (3rd ed. 1940); accord, Shorter v. United States, 412 F.2d 428 (9th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 454, 24 L.Ed.2d 436 (1969). Flight, however, may not be a reliable indication of guilt, Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 40 L.Ed. 1051 (1896), and its propriety has been questioned. Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Robinson, 154 U.S.App. D.C. 265, 475 F.2d 376 (1973); United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 376 (1973).

As the instruction itself states, the inference of guilt that may be drawn by the fact of flight only arises "immediately after the commission of a crime, or after he is accused of a crime that has been committed" (emphasis supplied). If the inference is to have any validity as an indication of guilt, the trial court should assure itself that some evidence exists regarding an accusation of the specific crime charged before instructing the jury that flight may be considered in its determination of guilt. Embree v. United States, 320 F.2d 666, 668 (9th Cir. 1963); but see Shorter v. United States, supra at 430. In the circumstances of this case, in which it is undisputed that the defendant was not advised of the crime he is now charged with at the time of his flight, the attempted arrest occurred over five months after the transaction charged, and there is no indication that defendant knew at the time of his flight that he was being sought for the crime charged, we do not think the jury could properly draw an inference of guilt from defendant's flight. The court, therefore, erred in giving the challenged instruction. However, we are convinced that this error was harmless due to the other proof at trial of defendant's participation in the crime charged. Fed.R.Crim.P. 52(a).

II. Failure to Call the Informant

We find no denial of due process in the fact that the Government failed to produce the informant as a witness. The rule in this circuit is that stated in United States v. Mosby, 422 F.2d 72, 74 (8th Cir.), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 571 (1970):

Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the Government has a wide discretion with respect to the witnesses to be called to prove its case. The Government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.

Accord, United States v. Martin, 482 F.2d 202, 204 (8th Cir. 1973); United States v. Williams, 481 F.2d 735, 737 (8th Cir. 1973).

Here the identity of the informant was known to the defendant before trial. He had testified at the earlier trial of defendant which ended in a mistrial, and in reading that testimony we are unable to find any basis for concluding that the informer's testimony would have been favorable to the defendant. No adequate justification for circumscribing or limiting the discretion of the prosecutor on whether or not to call the informer has been advanced. Nor was this a case in which defendant relied on an entrapment defense that might require the Government to produce the informant at trial. United States v. Pollard, 479 F.2d 310 (8th Cir. 1973).

III. Delay in indictment

We have recently considered the question of delay in indicting a defendant in United States v. Atkins, 487 F.2d 257 (8th Cir., 1973). The defendant claims his ability to present a successful alibi defense was prejudiced by the over five-month delay between the transaction (September 27, 1972) and the time he was indicted (March 21, 1973). In Atkins the period of delay was six months and a similar claim of prejudice to an alibi defense was presented. We found that defendant had not demonstrated sufficient actual prejudice to establish a denial of due process and so find here.

A delay between the commission of an offense and indictment may be a denial of due process, if prejudicial. Terlikowski v. United States, 379 F.2d 501 (8th Cir. 1967). The defendant must establish that actual, substantial prejudice has resulted from the prosecutorial delay. United States v. Emory, 468 F.2d 1017, 1020 (8th Cir. 1972); United States v. Golden, 436 F.2d 941, 943 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971).

The defendant claimed that at the time of the transaction charged he was camping at Pine Lake State Park, which is 75-80 miles from Des Moines, the site of the crime. The testimony of Mr. and Mrs. Durrell, who were allegedly also at the campgrounds with defendant, was presented, and other disinterested parties testified that they saw two young couples, one black and one white, at the campground that date, although they could not identify the defendant. We note that this was because of the distances involved in viewing the couples at the campground and not due to the delay in indictment. The campground receipt was introduced to show that defendant...