Appeal from the United States District Court for the Northern District of Indiana. No. HCR 84-58--Michael S. Kanne, District Judge.
Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and MAROVITZ, Senior District Judge.*
n* The Honorable Abraham Lincoln Marovitz, Senior District Judge for the Northern District of Illinois, is sitting by designation.
MAROVITZ, Senior District Judge.
The defendant-appellant, Frank Hollins, was convicted after a jury trial on all counts of a five count indictment. Count I charged Hollins with conspiring, in violation of the federal conspiracy statute, 18 U.S.C. § 371, to pass, utter or publish forged or altered money orders with the intent to defraud in violation of 18 U.S.C. § 500. Count II charged Hollins with causing, aiding and abetting, in violation of 18 U.S.C. § 2, the violation of section 500 charged in Count I. Counts III, IV and V all charged Hollins with intentionally forging and counterfeiting material signatures to United States Postal money orders in violation of section 500. Hollins was sentenced to a period of twenty years of incarceration--five years on Count I; five years on Count II, to run consecutively with the sentence imposed on Counts I and II; five years on Count IV, to run consecutively with the sentence imposed on Counts I through III; and five years on Count V, to run consecutively with the sentence imposed on Counts I through IV. Hollins appeals his convictions and we affirm.
Hollins' first two contentions are that he was denied evidentiary hearings on his motions to suppress and dismiss. Our review of the record on the motions to suppress and dismiss reveals that Hollins never formally requested an evidentiary hearing on either motion. The district court, therefore, had no opportunity to directly rule on whether Hollins was entitled to such a hearing. "It is a well-established general proposition that a litigant cannot present to this court as a ground for reversal an issue which was not presented to the trial court and which it, therefore, had no opportunity to decide." Holleman v. Duckworth, 700 F.2d 391, 394-95 (7th Cir. 1983). Although memoranda were filed and oral argument heard, because this issue was not presented to and addressed by the district court there is no necessity for our ruling on it in this court.
The district court did address, and the appellant did raise on appeal, the merits of the motion to suppress. This court has reviewed the district court's ruling on that motion. Hollins was arrested on April 16, 1980 on a charge of obstructing a criminal investigation. The arrest was made without a warrant. At a post-arrest hearing a magistrate found that the officers had had probable cause to arrest and issued a post-arrest warrant.
Hollins argues that the arrest was merely a pretext for the procurement of his photograph and handwriting exemplars which were used in the investigation and trial of the present charges. Hollins' handwriting exemplars were taken pursuant to a grand jury subpoena issued while Hollins was in custody on the obstruction charge. Hollins' photograph was also taken while he was in custody on that charge.
The district court held that the grand jury subpoena which ordered Hollins to give the handwriting exemplars was independent of the facts and circumstances surrounding his arrest on April 16, 1980. (R. 28). Because Hollins had no basis for objecting to the grant jury subpoena, the district court denied the motion to suppress the handwriting exemplars.
We agree that Hollins could have no valid objection to complying with the grand jury subpoena. A handwriting exemplar is neither a search nor seizure under the fourth amendment. United States v. Mara, 410 U.S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973). Nor is a handwriting privilege against self incrimination. Gilbert v. United States, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). In fact, on page 3 of his affidavit which is attached to the motion to suppress Hollins states that he voluntarily complied with the grand jury subpoena. Accordingly, we find that the district court properly denied Hollins' motion to suppress the handwriting exemplars.
The district court also denied Hollins' motion to suppress the photograph taken of him while in custody on the obstruction charge. The district court reasoned that, as with the handwriting exemplars, which were obtained by use of a grand jury subpoena, the photograph could have been obtained through means other than the arrest. (R. 35). We agree. As with the handwriting exemplars, the photograph could have been obtained by use of a grand jury subpoena without violating Hollins' fifth amendment right against self incrimination. Schmerber v. California, 384 U.S. 757, 763-64, 86 S. Ct. 1826, 1832, 16 L. Ed. 2d 908 (1966). Therefore, we find that the district court properly denied Hollins' motion to suppress the photograph.
The district court also denied on the merits Hollins' motion to dismiss. Hollins argues that the almost four year delay between the end of the conspiracy and his indictment violated his fifth amendment right to due process of law. He claims actual and substantial prejudice to his defense due to the fact that Delphine Porter, a government witness, was a better witness against him than she would have been had he be brought to trial sooner.
In 1980 Porter was a drug addict with a $200.00 a day heroin habit. During a 21 month period of incarceration at Lexington Prison Porter kicked her drug habit. The government responds that this factor does not constitute actual and substantial prejudice to Hollins' case.
Pre-indictment delay may constitute a due process violation if it substantially prejudices the defendant even if the indictment was returned within the limitations period.*fn1 See United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048, 52 L. Ed. 2d 752 (1977). The defendant bears the burden of showing "actual and substantial prejudice to his defense." United States v. Williams, 738 F.2d 172, 175 (7th Cir. 1984). Within this circuit there is conflicting authority as to whether, after a showing of actual and substantial prejudice has been made by the defendant, the defendant then bears the additional burden of proving that the government delayed the indictment for a tactical advantage or some other impermissible purpose, United States v. Watkins, 709 ...