UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: November 25, 1975.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
ERNEST FAIRCHILD, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 74 CR 538 FRANK J. McGARR, Judge
Swygert and Stevens, Circuit Judges, and Kunzig, Judge.*fn*
STEVENS, Circuit Judge.
Appellant contends that his conviction for distributing counterfeit bills*fn1 should be reversed because (1) the delay of 27 months between his arrest and trial violated his right to a speedy trial; and (2) evidence seized during a search incident to a warrantless arrest should have been suppressed because the arresting officers had ample time to obtain a warrant. He also questions the sufficiency of the evidence and the admissibility of the testimony of the witness Lee.
The defendant was arrested on November 24, 1972, the indictment was returned on July 25, 1974, and his trial began on February 24, 1975. This delay of 27 months is long enough to require consideration of the other factors identified in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).*fn2
The Government's explanation for the delay of 20 months between arrest and indictment was that it was attempting to find others who were involved in the counterfeiting operation in order to try them with Fairchild. The Government also explained that before proceeding against Fairchild it wanted to complete the trial of an important witness whose testimony might have been unavailable had he been tried with Fairchild. These reasons are sufficient to foreclose any claim that the pre-indictment delay was designed by the Government to prejudice Fairchild's defense. See United States v. Ricketson, 498 F.2d 367, 371 (7th Cir. 1974).
Neither of the two remaining factors - the defendant's assertion of his right and possible prejudice caused by the delay - lends any support to defendant's claim. He has made no showing of actual prejudice to his defense, other than a vague allegation that his memory was impaired. And defendant made little effort to have his case tried sooner. Although at some point after the indictment (the record is not clear as to the exact date) a speedy trial motion was filed, this motion was later withdrawn by defendant's counsel who said there was "nothing urgent" about the case. Thus, the defendant simply has not shown enough prejudice to tip the Barker v. Wingo balance. Compare United States v. De Tienne, 468 F.2d 151 (7th Cir. 1972), cert. denied 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274 (no actual prejudice), with United States v. Macino, 486 F.2d 750 (7th Cir. 1973) (one witness died and memories were demonstrably impaired).*fn3
Defendant's second asserted ground for reversal is the district court's denial of his motion to suppress evidence which was found in a search of his car at the time of his arrest. Defendant does not question the fact that the search was proper if the arrest was valid; nor does he challenge the existence of probable cause to arrest him. Rather, he contends that since the agents were in possession of ample information to justify the issuance of a warrant at least three days earlier and failed to offer any valid reason for not obtaining a warrant, the warrantless arrest was a violation of his rights under the Fourth Amendment.*fn4
In the absence of "a few specifically established and well delineated exceptions," a warrantless search is a violation of the Fourth Amendment even when based on probable cause. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 29 L. Ed. 2d 564, 91 S. Ct. 2022. The question squarely raised by this appeal is whether warrantless arrests should likewise be treated as presumptively invalid. Prior to the decision by the Ninth Circuit in United States v. Watson, 504 F.2d 849 (1974), cert. granted 420 U.S. 924, 95 S. Ct. 1117, 43 L. Ed. 2d 392 (1975), this question had been consistently answered in the negative.*fn5 Presumably it will be answered definitively by the Supreme Court in the Watson case since the Court has granted certiorari.
We have not previously been required to decide this precise question, although we have twice noted our opinion that no warrant is required when there is probable cause to arrest. See United States v. Rosselli, 506 F.2d 627, 629 n. 4 (1974); United States v. Cantu, 519 F.2d 494 (1975), slip opinion at 4, n. 5. In these circumstances it seems appropriate for us to leave to the Supreme Court the question whether a well settled rule of constitutional law should now be changed.*fn6
Defendant argues that the evidence is insufficient to support the conviction because the testimony of the principal witness, one South, is patently incredible. The asserted incredibility stems from the fact that South testified that he purchased notes from the defendant at a price of $40 per 100 and resold them at a lower price. The record, however, contains an explanation of this testimony which the jury was entitled to credit. South's testimony indicates that he had not previously passed any counterfeit bills and made the decision to sell them at a loss because he was afraid to try to pass them. Although defendant makes a number of other arguments questioning the credibility of South's testimony, we are satisfied that the jury was entitled to believe the incriminating evidence.
Finally, defendant argues that the testimony of the witness Lee should have been excluded because it was irrelevant and grossly inflammatory. Lee testified that, on a date shortly after the events charged in the indictment, Fairchild showed Lee a large quantity of bills in the trunk of his car, told Lee they were counterfeit, and offered to let Lee sell them.
Evidence of other criminal transactions is, of course, not admissible to show that the defendant has a "propensity" to commit the charged offense. United States v. Yarbrough, 352 F.2d 491 (6th Cir. 1965). Such evidence may, however, be admissible if, entirely apart from the matter of "propensity," it has a tendency to make the existence of an element of the crime charged more probable than it would be without such evidence. See Rules 401 and 404(b) of the Fed. Rules of Evidence; United States v. McCoy, 517 F.2d 41, 43-44 (7th Cir. 1975); United States v. Rivera, 437 F.2d 879 (7th Cir. 1971), cert. denied, 402 U.S. 947, 29 L. Ed. 2d 115, 91 S. Ct. 1638. Lee's testimony in this case was relevant to an element of each count. The fact that Fairchild was in possession of a supply of counterfeit bills tended to prove that he had the ability to distribute the notes described in both counts and, further, that the passing of the single note described in Count II was not a mere accident or mistake.
Even though relevant, the evidence could have been excluded had the trial court found that its prejudicial effect outweighed its probative value. Fed. Rule of Evidence 403. However, such balancing is in the first instance left to the sound discretion of the trial judge, and there is no ground to say that he abused that discretion in this case.