UNITED STATES of America, Plaintiff-Appellee, v. Horace Sheppard ZANE, a/k/a John Logan and Francis Rossetti, Defendant-Appellant

United States Court of Appeals for the Fifth Circuit1973-12-19No. No. 73-2895

489 F.2d 269

Summary · law.co

Holding. The conviction is affirmed. A one-year post-arrest pre-indictment delay does not violate the Sixth Amendment speedy trial guarantee absent a substantial showing of actual prejudice to the defendant's defense, and the court found no such prejudice here.

A defendant charged with selling stolen vehicles across state lines challenged his conviction on Sixth Amendment speedy trial grounds. He argued that the one-year delay between his arrest in March 1972 and indictment in March 1973 violated his right to a speedy trial. The court rejected this argument, finding that while post-arrest pre-indictment delays fall within speedy trial protections, the defendant must demonstrate actual prejudice to his defense. The defendant's general claims about a deceased prosecutor and potential witness memory loss were insufficient to establish such prejudice without specific explanation of how the prosecutor's testimony would have helped his case.

The court found no speedy trial violation because the investigative delay was reasonable and undertaken in good faith. The FBI continued investigating potential additional vehicle thefts by the defendant following his arrest, and the difficulty in tracing stolen vehicles and locating witnesses justified the extended timeline. The prosecution did not intentionally delay proceedings to disadvantage the defense. Additionally, the defendant made bond immediately and thus avoided pretrial incarceration, and there was no excessive delay between indictment and trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether post-arrest pre-indictment delay violates the Sixth Amendment speedy trial guarantee
What standard of prejudice applies to pre-indictment delays
Whether investigative delay in good faith satisfies speedy trial protections

Procedural posture

The defendant appealed his conviction on two counts of selling and disposing of stolen motor vehicles in interstate commerce, raising a sole challenge under the Sixth Amendment's speedy trial clause.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

JOHN R. BROWN, Chief Judge:

In this appeal from a conviction on a two count indictment for selling and disposing of a stolen motor vehicle in interstate commerce, 18 U.S.C.A. § 2313, the Sixth Amendment’s speedy trial imperative is the sole issue. We affirm. In December 1971, the FBI commenced an investigation of appellant concerning the sale of stolen automobiles. In March 1972, appellant was arrested on a warrant pertaining to the sale of the two stolen vehicles. Following the arrest, the investigation continued and appellant was not indicted until March 19, 1973. He was arraigned on April 2, 1973, went to trial on May 7, 1973 and was convicted the following day. Appellant asserts that the one year post-arrest pre-indictment delay constituted a denial of the right to a speedy trial.

While post-arrest pre-indictment delay is within the scope of the speedy trial guarantee, a substantial showing of actual prejudice is required to establish a Sixth Amendment violation in this situation. United States v. Marion, 1971, 404 U.S. 307, 320-325, 92 S.Ct. 455, 463-466, 30 L.Ed.2d 468, 478-481; United States v. Smith, 5 Cir., 1973, 487 F.2d 175; United States v. Broadway, 5 Cir., 1973, 477 F.2d 991; United States v. Schools, 5 Cir., 1973, 486 F.2d 557. Appellant has not made such a showing of actual prejudice.

Although appellant asserts that a Georgia state district attorney with whom he had previously discussed his case died prior to the trial, he has made no indication on the record of how the testimony of the deceased former prosecutor might have aided his defense. A general allegation of loss of witnesses and failure of memories is insufficient to establish prejudice. United States v. Smith, 5 Cir., 1973, 487 F.2d 175; United States v. Broadway, 5 Cir., 1973, 477 F.2d 991.

In Marion, it was recognized that prosecutorial delay intentionally employed as a device for disadvantaging the defense would constitute a denial of due process. 404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 481. Such was not the case here.

After the initial arrest of appellant, the FBI continued to pursue its multi-state investigation with some reason to believe that appellant was involved in other illegal sales of automobiles as well. In fact, the continued investigation was partially prompted by evidence discovered when appellant was arrested in March 1972. Difficulty in tracing stolen vehicles and locating witnesses extended the length of the investigation. The failure to augment the charges in the arrest warrant with further charges in the subsequent indictment does not negative the FBI’s good faith in continuing to pursue the investigation before seeking an indictment. On the record before us, the District Court was entitled to conclude that the delay arising out of the pre-indictment investigatory stage of this prosecution did not deprive appellant of his rights to a speedy trial or due process of law.

Affirmed.

. The statute of limitations is the primary form of protection against pre-indictment delay. See Marion, supra, 1971, 404 U.S. at 322, 92 S.Ct. at 464, 30 L.Ed.2d at 479.

. Since appellant made bond immediately, he did not suffer oppressive pre-trial incarceration.

Since there is, and could be, no arguable claim of excessive delay between indictment, arraignment and trial, appellant’s failure to request a speedy trial until the trial was scheduled to commence is not of any relevance, whatever the case might be as to post-indictment pre-trial delay. See Barker v. Wingo, 1972, 407 U.S. 514, 527-529, 92 S.Ct. 2182, 33 L.Ed.2d 101, 117-118; United States v. Dyson, 5 Cir., 1972, 469 F.2d 735, 740-741.