Kiley and Kerner, Circuit Judges, and Holder, District Judge.*fn*
Defendant appeals from her conviction, without a jury, under a one-count indictment charging her with an unlawful sale of heroin.*fn1 We affirm.
We set forth the testimony favorable to the government: On March 10, 1965, government informer Hartley and narcotics agent Gibson met with "Bo" Smith. Hartley asked Smith where he could meet defendant and get heroin. Smith made a telephone call and directed Hartley and Gibson to an apartment address. When they reached the address, Hartley went up to the apartment while Gibson waited on a lower landing. Hartley pressed the buzzer, defendant answered and admitted him into the apartment. Smith was present. Defendant sold heroin to Hartley. Her arrest, indictment and trial followed.
The offense was allegedly committed March 10, 1965. Defendant was arrested about ten months later, on January 25, 1966. She was indicted almost eleven months after arrest, on December 16, 1966. She contends that the district court erred in denying her pre-trial motion to dismiss the indictment, arguing that she was prejudiced by the "unnecessary" delay in presenting the charge to the grand jury. Her motion was based on Rule 48(b),*fn2 Fed.R.Crim.P., and the Sixth Amendment right to a speedy trial. She also contends that the delay effectively denied her Sixth Amendment right to compulsory process for witnesses in her favor, and denied her due process in a loss of opportunity to prepare her defense. We see no merit in these contentions.
Dismissal of an indictment under Rule 48(b) rests in the sound discretion of the district court, and on appeal the question is whether the court's ruling was an abuse of that discretion. Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808, 810-811 (1963). Rule 48(b) sets no schedule to be followed in arresting alleged offenders or prosecuting cases. It does state that where the delay is unnecessary in bringing a defendant to trial, the court may dismiss. This implies a burden on the government to show necessity if the delay is questionably long. But the proof is not required unless there is some evidence of prejudice to the defendant. See United States v. Jones, 403 F.2d 498 (7th Cir. 1968), cert. denied, 394 U.S. 947, 89 S. Ct. 1280, 22 L. Ed. 2d 480 (April 1, 1969); United States v. Napue, 401 F.2d 107, 115 (7th Cir. 1968), cert. denied, 393 U.S. 1024, 89 S. Ct. 634, 21 L. Ed. 2d 568 (1969); United States v. Hauff, 395 F.2d 555, 556-557 (7th Cir. 1968); United States v. Deloney, 389 F.2d 324, cert. denied, 391 U.S. 904, 88 S. Ct. 1652, 20 L. Ed. 2d 417 (7th Cir. 1968); United States v. Feinberg, 383 F.2d 60 (2d Cir. 1967).
Our function in reviewing the denial of defendant's motion is to consider the district court's balancing defendant's personal interest in having the charge presented to the grand jury without undue delay, against the government's interest in protecting the public by practical and effective enforcement of narcotics laws. We find that the district court did not abuse its discretion in striking the balance it did by denying defendant's motion to dismiss the indictment.
Defendant's motion claimed essentially that the eighteen months delay in indicting her rendered her unable to reconstruct events of March 10, 1965, the day of the alleged offense, or to obtain witnesses who could assist her in doing so. On its face this allegation might normally be enough to put the government to the burden of showing that the delay was reasonable. The longer the delay, the less burden on defendant in proof of prejudice. See Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214, 220-223 (1966) (dissent).
The government's answer to the motion to dismiss was in error in stating that the law of this Circuit is that the statute of limitations is the exclusive test of whether a pre-indictment delay is prejudicial. This court in United States v. Panczko, 367 F.2d 737 (7th Cir. 1966), cert. denied, 385 U.S. 1009, 87 S. Ct. 716, 17 L. Ed. 2d 546 (1967), did state in effect that the "only" limit on pre-indictment investigation was the statute of limitations. However, subsequently in United States v. Deloney, 389 F.2d 324, 325 (7th Cir. 1968), the court found that the Panczko statement "may be somewhat confusing" and concluded that a delay less than the limitation period could conceivably require relief under the due process clause of the Fifth Amendment. And in United States v. Hauff, 395 F.2d 555, 557 (7th Cir. 1968), this court stated that "the rule in this Circuit is that a trial court should dismiss an indictment because of pre-indictment delay if the accused proves he has been prejudiced * * *."*fn3
The question therefore is whether the motion showed prejudice sufficient to require dismissal of the indictment. Presumably the district court in the case before us relied upon Panczko. That decision, filed in late 1966, was this Circuit's law until discarded by Deloney in January, 1968.
After her indictment in December, 1966, defendant was arrested in January, 1967, taken before the Commissioner, informed by complaint of the charge against her, and then enlarged on bail. She was free until found guilty April 25, 1967, approximately 2 years after the alleged offense. At the trial she testified that her aunt and uncle were with her on March 10, 1965, in her apartment, and remained with her while "Bo" Smith and Hartley went to the kitchen, and that she did not see Hartley buy the narcotics; that her aunt and uncle were to be her witnesses, but her uncle had died on December, 1966, and her aunt had died a few days before trial.
Defendant made no mention of her uncle's death in her pre-trial motion filed in February, 1967, although according to her testimony he had died two months before. In that motion she claimed inability to reconstruct the events of March 10, 1965, and lack of opportunity to obtain witnesses who could assist her. At the trial, however, she reconstructed that day under her theory in detail. Her aunt had been available for more than a year after defendant's arrest and the filing of the complaint notifying her of the offense charged. And the government's chief witness testified that defendant sold him the heroin and stated on cross-examination that he saw no other woman in the apartment nor any man other than "Bo" Smith.
We think, in view of those events which occurred at the trial, that the error, if any, in the court's ruling on the pre-trial motion was cured by the testimony at trial which affirmatively shows no prejudice. Defendant's testimony was virtually a hearing upon the pre-trial motion and refuted what was alleged in the motion. On the narrow facts of this case we cannot say the absence of showing necessity for the delay requires a holding of prejudice. Were it not for refutation at trial, we would be hard put not to reverse under our supervisory power, if not on constitutional grounds.
Essentially there is no prejudice shown. Defendant's own motion shows she was given notice of the charge against her soon after her arrest by the complaint before the Commissioner. She was free on bond from that time until her conviction so that she had ample opportunity to arrange for an attorney and prepare her defense. She made no attempt to expedite trial. In her pre-trial motion she did not claim prejudice because of the loss of her uncle as a witness in her favor although he was dead, according to her later claim, when the motion was filed. The district court was not required to believe defendant's testimony that her aunt would have helped her as a witness because there is a dispute as to whether her aunt was present in defendant's apartment during the sale. And a claimed lapse of memory is futile, in view of ...