On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 913-Ann Clair Williams, Judge.
Wood, Jr., Coffey, and Flaum, Circuit Judges.
WOOD, JR., Circuit Judge.
William A. Floyd appeals from his convictions of embezzling union property in violation of 29 U.S.C. § 501(c) and of conspiring to embezzle union property in violation of 18 U.S.C. § 371. He also contests the district court's denial of his motion to dismiss the indictment due to prejudice on the basis of preindictment delay. We affirm.
William A. Floyd ("Floyd") admits the following facts. In 1984, Floyd served as both a business representative and trustee of Teamster Local 705 ("Local 705"). At the time, Louis Peick ("Peick") served as Secretary-Treasurer (the chief officer) of Local 705, a position he had held consecutively since 1957.
In August 1984, Peick informed Floyd that he (Peick) had a problem with a union car, the 1983 Cadillac Sedan DeVille which the union had assigned to Floyd. Peick told Floyd to "dump" the car. Floyd did not ask Peick why he wanted the car dumped nor did Floyd question Peick's authority to issue the order. Floyd contacted his cousin, Kenneth Floyd, and asked him to find someone to take the car.
Kenneth Floyd approached Otto Bremer and offered him the car. Unbeknownst to Kenneth Floyd, Otto Bremer was a government informant. Floyd subsequently gave his car keys to Kenneth Floyd so that a duplicate set could be made. On August 28, 1984, Floyd parked the car in the parking lot of a shopping center in Kankakee, Illinois where Bremer later arranged to "steal" it. Floyd then notified the Kankakee police department that the car had been stolen.
Several weeks later, Bremer met with Floyd to return the two-way radio which had been in the trunk of the car. Floyd informed Bremer that Peick had been "raising hell" with him for allowing the radio to be seized. Soon after, Floyd telephoned Peick and read off its serial numbers. After apparently checking these numbers against some records, Peick directed Floyd to get rid of the radio. Floyd threw the radio into the Kankakee River.
Floyd obtained the police report on the stolen car and gave it to Peick; Peick sent the report to the union's insurance carrier to receive reimbursement for the vehicle. The United States Fidelity & Guaranty Insurance Company subsequently issued a check for $12,850.00 to the union for the loss of the car. The insurance company also paid the union a small sum to partially defray the cost of a rental car.
In November 1985, two special investigators from the United States Department of Labor interviewed Floyd at his home about his role in the staged theft. In April 1985, a grand jury investigated union evidence relating to the taking of the car. The grand jury issued a subpoena to Peick in July 1986. On July 23, 1986, Peick's attorney, responding to the subpoena, stated that Peick had suffered a heart attack earlier that year and that he was unable, to consult with counsel due to continued illness. Peick's counsel further stated that his client intended to invoke his fifth amendment privilege if he were called to testify. Peick died in November 1986.
Floyd was indicted on November 20, 1987. The indictment charged Floyd with conspiracy to commit mail fraud and to embezzle union property in violation of 18 U.S.C. § 371 (Count 1), embezzlement of union property in violation of 29 U.S.C. § 501(c) (Count 2), and mail fraud in violation of 18 U.S.C. § 1341 (Counts 3,4,5,6,7 and 8). The defendant moved to dismiss the charges against him on the ground that he was prejudiced by preindictment delay. Floyd pointed out that although the government had initiated its investigation in November 1985, he was not indicted for another two years. He argued that Peick's death in the interim precluded him from presenting a cogent defense.
The court rejected Floyd's motion to dismiss for several reasons. The court noted that the death of a material witness does not, in itself, establish prejudice. Indeed, it was not clear that Peick would have tested at trial even had he lived. The court pointed out that Peick, in his counsel's response to the grand jury subpoena, expressed an intent to invoke his fifth amendment privilege against self-incrimination. Accordingly, it was unlikely that Peick would have risked implicating himself by taking the stand at Floyd's trial. The court also remarked upon Floyd's failure to attempt to preserve Peick's testimony as a means of avoiding any prejudicial effect. Finally, the court stated that Floyd had not demonstrated how Peick's testimony could have exculpated him.
On October 3, 1988, Floyd pleaded guilty to the two counts of mail fraud (Counts 3 and 8), and to that portion of Count 1 which dealt with conspiracy to commit mail fraud. In exchange for Floyd's guilty plea on those counts, the government moved to dismiss Counts 4 through 7. Floyd waived his right to a jury trial on the ...