Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 C.R. 116 RICHARD W. MCLAREN, Judge.
Fairchild and Cummings, Circuit Judges, and Jameson, Senior District Judge.*fn*
In February 1972, a 3-count indictment was returned against defendant and Leo Rugendorf, Francis Hohimer and Colin Green. The charges involved a jewelry theft that took place in Indianapolis, Indiana, on June 16, 1967. The first count charged the four defendants with a conspiracy to transport in interstate commerce jewelry worth more than $5,000, and to receive it and sell it -- all in violation of 18 U.S.C. § 371, the general conspiracy statute. Count II charged them with transporting the jewelry from Indianapolis to Chicago in violation of 18 U.S.C. §§ 2 and 2314. The final count charged that defendant Rugendorf received the same jewelry in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. §§ 2 and 2315. Sections 2314 and 2315 forbid the transportation and sale or receipt of stolen goods with a value of $5,000 or more; Section 2 is the general aiding and abetting statute.
Early in the morning of June 16, 1967, the Indianapolis residence of Mr. and Mrs. Nicholas Noyes was burglarized by Ricketson, Green and Hohimer. Later that morning in Chicago, Rugendorf picked up the jewelry at Hohimer's apartment. That afternoon an unidentified person gave Rugendorf $20,000 for the jewelry. Rugendorf turned the money over to Hohimer. The next day Rugendorf augmented the sum by giving Hohimer an additional $700. Hohimer paid his brother Wayne $50, Green $200 and Ricketson $700, retaining the balance.
Hohimer and Green pled guilty and became government witnesses. Rugendorf was severed due to ill health*fn1 and testified from a hospital bed on behalf of Ricketson, who stood trial alone. After a jury trial, Ricketson was convicted on Counts I and II as charged and on May 2, 1973, received a 3-year sentence concurrent to his prior five to ten-year sentence on a state charge of burglary, theft and bribery. After receiving his federal sentence, Ricketson was paroled from the Illinois State Penitentiary and delivered to the Federal Correctional Institute at Sandstone, Minnesota on June 30, 1973.
Defendant urges that his Sixth Amendment right to a speedy trial was violated because of the 56-month period between the June 1967 offense and the return of the indictment on February 22, 1972, four months before the expiration of the five-year statute of limitations (18 U.S.C. § 3282). However, in United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455, the Supreme Court held that the Sixth Amendment speedy trial provision does not apply until a putative defendant becomes an accused. Targeting a suspect for investigation does not make him an accused for this purpose. United States v. Joyce, 499 F.2d 9 (7th Cir. 1974), slip op. at 12-13. Consequently, even if the Government knew of defendant's involvement in the Noyes burglary at an early date, his right to a speedy trial did not accrue until indictment.
Although the Sixth Amendment cannot be violated by pre-indictment delay, Marion indicated that the due process clause of the Fifth Amendment would be violated if pre-indictment delay caused substantial prejudice to a defendant's right to a fair trial and was purposely occasioned by the Government to obtain a tactical advantage over him. 404 U.S. at 324. Defendant does not claim that his trial was prejudiced by the delay. His only claim of prejudice is that his state parole was affected and any advantage of concurrent sentencing was minimized. Although this could be prejudicial for speedy trial purposes (Smith v. Hooey, 393 U.S. 374, 378, 21 L. Ed. 2d 607, 89 S. Ct. 575), it did not prejudice defendant's due process right to a fair trial. Nothing in United States v. Hauff, 461 F.2d 1061, 1067-1068 (7th Cir. 1972), or the pre- Marion case of United States v. Strauss, 452 F.2d 375, 377-378 (7th Cir. 1971), is to the contrary. Those cases rejected claims similar to defendant's as "speculative, * * * almost fanciful," "conjectural, if not frivolous * * *." They therefore had no occasion to consider whether a serious claim of prejudice to parole or concurrent sentencing rights would be legally relevant under the due process clause to pre-indictment delay. We hold that it is not.
Furthermore, defendant has shown no intentional delay by the Government to obtain an advantage over him. The Government has represented that "the facts and circumstances surrounding this crime did not come to its attention until Summer, 1971." The FBI's 1967 interview with Mrs. Marguerite Lilly Noyes, the victim, does not cast doubt on this representation, for her interview with the FBI disclosed no information as to the identities of the masked participants in the burglary. Since neither intentional delay nor prejudice to a fair trial have been shown by defendant, the pre-indictment delay did not violate the due process clause. United States v. Marion, supra, at 325-326.
Defendant also urges that his Sixth Amendment right to a speedy trial was violated by the eleven-month delay between his motion for immediate trial and trial. As noted, defendant was indicted in February 1972. He filed a single motion for immediate trial in April 1972, but it is clear from his accompanying memoranda that he was really seeking relief in the form of dismissal for pre-indictment delay and a limitation on the Government's proof at trial. This was the argument and request for relief under the heading "Motions to Dismiss and An Immediate Trial" in the first memorandum; immediate trial was not mentioned in defendant's reply memorandum, after the Government had represented that it was ready for trial but that defendant had sought two continuances. The district judge denied the relief requested and never ruled on the motion for immediate trial; defendant did not complain that this was an oversight.
The four-part balancing test of Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182, requires us to consider the length of delay, the reason for the delay, defendant's assertion of right, and the prejudice to the defendant.
As to the length of delay, longer periods have been tolerated in speedy trial cases. For example, United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), involved a 19 1/2-month pre-trial delay. But eleven months is substantial, and the reasons for the delay are unclear. The case is not particularly complex, although in fairness to the Government, we note that its problems of proof must have been much more difficult before Hohimer's September 11, 1972, guilty plea. The Government speculates that "some delay was occasioned by Rugendorf's health problems and the time necessary for Hohimer and Green to decide to change their pleas." We can judicially note that the trial judge was newly appointed when this indictment was returned; he therefore had a number of cases older than this one reassigned to him from other judges. The docket sheet shows that pre-trial motions were decided on May 5, 1972, and that thereafter there were status calls on May 24, June 22, September 15, and October 10. Mrs. Noyes' deposition and Hohimer's guilty plea are the only events of significance in this five-month period. Thereafter, trial dates of November 27, 1972, and February 20, 1973, were set and vacated; there was a status call on December 20, 1972. Trial commenced on March 5, 1973. During this five-month period, Rugendorf was severed, Green pled guilty, a pre-trial conference was held, and subpoenas were issued. The record before us does not indicate why progress was so slow. The proceedings at each status call and vacated trial date have not been transcribed. But at each session, Judge McLaren entered an order setting the date for the next. We must assume that he had sufficient reasons each time he vacated a trial date, or set the next status call relatively ...