Appeal from the United States District Court for the Northern District of Indiana. No. H Cr 76-22 - Allen Sharp, Judge.
Cummings, Pell, and Tone, Circuit Judges. Tone, Circuit Judge, concurring.
A single count indictment dated January 21, 1976, charged Juarez with distributing heroin on May 9, 1974, in violation of 21 U.S.C. § 841(a)(1). A jury convicted. Asserting that substantial pre-indictment delay abridged his Sixth Amendment right to a speedy trial and cognate rights under Rule 48(b), Fed.R.Crim.P., and that the admission into evidence of testimony about a March 11, 1974, heroin sale by Juarez was improper and prejudicial, Juarez appealed.
The basic facts pertinent to the issues presented are not complicated. On March 6, 1974, Gustavo Vazquez, a Special Agent of the Drug Enforcement Administration assigned to the Chicago office, was introduced to Juarez by an informer who happened to be Juarez's uncle. On March 11, 1974, in Chicago, Juarez sold to Vazquez somewhat less than an ounce of heroin.*fn* On May 9, 1974, in Hammond, Indiana, Juarez sold to Vazquez another half ounce of heroin. Such, at least, was the testimony of Vazquez, corroborated in part by surveillance agents, and the sufficiency of this evidence to sustain the charge is not questioned here. Juarez testified that he had absolutely no recollection of any heroin dealings with Vazquez after March 11.
In October 1974, a Chicago magistrate's warrant led to Juarez's arrest for the March 11 sale. Charges based on the March 11 sale were ultimately dismissed, for reasons which do not clearly appear in the record. The first indication Juarez had that he would be charged with a May 9, 1974, offense came when he was indicted and arrested in January 1976.
Because Juarez does not assert a denial of his speedy trial rights flowing from the four months intervening between indictment and trial (more than five weeks of which resulted from his counsel's request for a continuance), his reliance on the Sixth Amendment is unavailing. In United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971), the Supreme Court rejected a similar claim based on a three year pre-indictment delay, and squarely held that "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused'. . . ." Id. at 313. The status of an "accused" is attained only upon "a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge. . . ." Id. at 320. See also Dillingham v. United States, 423 U.S. 64, 46 L. Ed. 2d 205, 96 S. Ct. 303 (1975) (per curiam). This holding was reaffirmed only recently in United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752, 45 U.S.L.W. 4627, 4629 (1977). As the facts of Marion and Lovasco reveal, a pending investigation does not make a potential defendant an "accused."
Nor does the fact that Juarez was arrested in October 1974 suggest a different conclusion, for the October arrest was for the separate and distinct offense embodied in the March 11 heroin sale. "The Speedy Trial Clause of the Sixth Amendment . . . is activated only when a criminal prosecution has begun by the filing of an indictment or information or a prior arrest of the offender on the same charge." United States v. Hauff, 461 F.2d 1061, 1063 (7th Cir. 1972), cert. denied, 409 U.S. 873, 34 L. Ed. 2d 124, 93 S. Ct. 203 (emphasis supplied). As this court stated in United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972), cert. denied, 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274 (1973): "It would be absurd in the extreme if an arrest on one charge triggered the Sixth Amendment's speedy trial protection as to prosecutions for any other chargeable offenses." A different result might obtain where interrelated offenses are involved, "the crimes for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable. . . ." Id. at 155. This, however, is not that type of case. The only interrelationships between the separate and distinct March and May heroin transactions are that the same criminal statute was violated twice by sales to the same agent.
Likewise, and for the same reasons, Juarez's reliance on Rule 48(b), Fed.R.Crim.P., is misplaced. "The rule clearly is limited to post-arrest situations." United States v. Marion, supra, 404 U.S. at 319 (footnote omitted); accord, United States v. Lovasco, supra, 431 U.S. at 789, 97 S. Ct. 2044, 45 U.S.L.W. at 4629 n.8.
Even where the Sixth Amendment and Rule 48(b) are not applicable, "the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that . . . pre-indictment delay . . . caused substantial prejudice to [the defendants'] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." United States v. Marion, supra, 404 U.S. at 324 (footnote omitted). Such actual prejudice does not automatically require dismissal; instead, "to accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case." Id. at 325. "Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." United States v. Lovasco, supra, 431 U.S. at 790, 97 S. Ct. at 2049, 45 U.S.L.W. at 4629. Although Juarez's argument to this court was cast exclusively in speedy trial rubric, we address the possibility that the 20-month pre-indictment delay in this case denied Juarez a fair trial.
In doing so, we reject at the outset Juarez's suggestion that prejudice may be presumed as a matter of law whenever 20 months intervene between a crime and a charge. The Marion opinion's emphasis on "actual" and "substantial" prejudice "shown at trial" forecloses this argument. See United States v. Joyce, 499 F.2d 9, 19 (7th Cir. 1974), cert. denied, 419 U.S. 1031, 42 L. Ed. 2d 306, 95 S. Ct. 512.
Juarez's claim of actual prejudice is limited to the fact that a 20-month pre-indictment delay made it difficult for him to reconstruct the events of May 9, 1974, and to find alibi witnesses, if any existed. His testimony, if credited, supports that claim to some degree. Although he never stated that he could not remember the events of May 9 in general, he did assert eleven times in what was transcribed as three pages of the record that he could not remember selling heroin to Vazquez on May 9 or any other time after March 11.
This does not make out a particularly strong case of prejudice. A faded memory claim, while not outside the teachings of common sense, is inherently speculative as to its impact on a given case. See United States v. Mallah, 503 F.2d 971, 989 (2d Cir. 1974), cert. denied, 420 U.S. 995, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975); United States v. Golden, 436 F.2d 941, 943 (8th Cir. 1971), cert. denied, 404 U.S. 910, 30 L. Ed. 2d 183, 92 S. Ct. 236. Moreover,
[a] claim of faded memory, the veracity of which can rarely be satisfactorily tested, can be plausibly asserted in almost any criminal case in which the defendant is not charged within a few weeks, at most, after the crime. . . . If the limitation period for prosecution were measured by the length of the defendant's memory of routine events, few crimes could be prosecuted.
United States v. Cowsen, 530 F.2d 734, 736 (7th Cir. 1976), cert. denied, 426 U.S. 906, 48 L. Ed. 2d 831, 96 S. Ct. 2227. Cowsen arose on a stipulation as to what the defendant's testimony would have been that makes the case qualitatively identical to this one. The delay in Cowsen was shorter, but this court noted that "the possibility or likelihood of faded memory has not, however, in itself, been viewed as prejudice that requires dismissal of an indictment, despite delays of much longer than the four and one-half months shown here." Id. at 736 (citations to cases involving delays ranging from nine months to nearly six years omitted). We do not say that this 20-month delay with its attendant possibilities for the fading of Juarez's memory counts for nothing in the "delicate judgment" which United States v. Marion, supra, 404 U.S. at 325, requires of us. On the other hand, Juarez's claim as thus limited does not command the same concern as if he were asserting the unavailability of a critical piece of evidence or witness due to the delay.
In examining the essential fairness of the Government's 20-month delay in charging, it is important to state that the record, which we have examined, contains not a hint that the delay was "an intentional device to gain tactical advantage over the accused," id. at 324, or was motivated by a desire to harass Juarez. Beyond this, the record is not as clear as it might be, for both Juarez and the Government declined the district court's invitation to present evidence on the issue of the delay, and the district court made no express finding on the Government's explanation therefor. Because a clear explanation was presented to the district court in the Government's opposition memorandum to Juarez's motion to dismiss, and because that explanation was supported by evidence taken at trial, we see no reason to remand for a hearing that ...