Petition — Higgins v. United States

Supreme Court, U.

FILED

15 1978

in the |_MICHAEL RODAK, JR., CLERI

of the

United States

OCTOBER TERM 1977

no. #%-1626

ROBERT ' HIGGINS and

WILLIAM J. MILLER,

Petitioners,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

HIRSCHHORN & FREEMAN, P.A.

By: Joel Hirschhorn, Esq.

742 N W. 12th Avenue

Miami, Fla. 33136

(Tel. 305 324-5320)

Attorneys for Petitioners

SUBJECT INDEX

Page

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EE RE EE ETE PP 5

Constitutional and Statutory ProvisionsInvolved . 6

Preliminary Statement ...............ccceeeeeeees 7

vice ccicnccenedionsakens 8

Reasons for Granting the Writ...................5. 14

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SU NOII i vcecbeccccvccccsccccecessses 22

in the

Supreme Court

of the

United States

OCTOBER TERM 1977

NO.

ROBERT HIGGINS and

WILLIAM J. MILLER,

Petitioners,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, Robert Higgins and William J.

Miller, respectfully pray that a Writ of Certiorari issue

to review the Opinion and Judgment of the United

States Court of Appeals for the Fifth Circuit, entered in

the above-styled cause on February 21, 1978, Petition for OPINION BELOW

Rehearing and Petition for Rehearing en banc denied on

April 14, 1978. The Opinion of the Court of Appeals appears in Ap-

pendix “A” hereto.

JURISDICTION

The Judgment of the Court of Appeals for the Fifth

Circuit was entered on February 21, 1978 affirming the

Petitioners’ convictions. The Fifth Circuit Judgment as

to Petitioners Higgins and Miller in Fifth Circuit Case

No. 77-5194 set forth in Appendix “E”’ hereto; the Fifth

Circuit Judgment as to Petitioner Higgins in Fifth Cir-

cuit Case No. 77-5321 is set forth as Appendix “‘F’’. This

Court’s jurisdiction is invoked under 28 United States

Code §1254(1).

we

QUESTIONS PRESENTED

Whether the Defendants were denied due process of

law guaranteed by the Fifth Amendment when the Trial

Court failed to grant the Defendants’ Motion to Dismiss

the Indictment due to Unnecessary and Unexcused Pre-

Indictment Delay where the delay was not due to any

ongoing investigation and where the Government did

not offer any excuse or justification for the delay where

the delay was in excess of four years between the com-

mission of the alleged offense and the return of the In-

dictments herein.

Whether the District Court erred in denying Defen-

dant’s Motion for Bill of Particulars with respect to

specific dates, as a result of which the Defendants’

defense of Alibi was rendered demonstrably meaningless

despite the fatal variance between the Indictment and

proof at trial with respect to the time period alleged in

the Indictment, as a result of which the Defendant

Higgins was denied due process of law contrary to the

Fifth Amendment to the United States Constitution.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The case sub judice involves the Petitioners’ right

to due process of law guaranteed by the Fifth Amend-

ment to the United States Constitution which appears

as Appendix “H”’ attached hereto.

PRELIMINARY STATEMENT

The facts with respect to unnecessary and unex-

cused pre-indictment delay apply to both cases for

which certiorari is sought.

In the first case, pre-indictment delay is the sole

issue before this Court; hence, the specific facts of that

case are not relevant to this Court’s consideration of the

Petition for Writ of Certiorari.

In the second case where Petitioner Miller has not

been indicted, Petitioner Higgins raises a second issue;

hence, the specific facts of that case are germane to this

Petition for Writ of Certiorari and are set out in the

Statement of the Case which follows.

STATEMENT OF THE CASE

Facts as to Fifth Circuit Case No. 77-5194

U.S. District Court Case No. 76-377-Cr-WM:

Petitioners Higgins and Miller were indicted in

August, 1976 and charged with one count of conspiracy

to import marijuana in March, 1972, contrary to 21

U.S.C. §963. In order to relate, meaningfully, those facts

which bear on the pre-indictment delay in this case,

Petitioners have prepared a chart detailing those facts

for this Court’s utilization in analyzing the delay. The

bases for all factual statements are found in this chart

which is set forth as Appendix “I’’.

On March 5, 1972, Bernard Baston and Peter Hoyer

were arrested in Baltimore, Maryland, and ultimately

charged in the United States District Court for the Dis-

trict of Maryland with possession and distribution of

marijuana. This is the incident to which the Petitioners

have been linked in the present conspiracy indictment

returned four years and five months later in August,

1976. At the time of their arrest, Hoyer and Baston gave

statements to agents of the Bureau of Narcotics and

Dangerous Drugs (B.N.D.D.), the predecessor agency of

the Drug Enforcement Administration, hereinafter

referred to as “D.E.A.’’, implicating Johhn Licktieg and

Richard Thurlow, who later become the Government’s

chief witnesses against the Petitioners. Also implicated

was Thomas Swan, a co-defendant of the Petitioners at

trial.

During and prior to March, 1972 and as early as

November, 1971, the United States Customs Service

had been investigating the vessel “‘Alisan’”’ and the ac-

8

tivities of the Petitioner Higgins as Captain of that boat.

In June, 1972, United States Customs closed its file on

the Petitioners and the boat “‘Alisan’’.

In May, 1973, Thurlow gave a lengthy statement to

a D.E.A. agent inculpating Petitioner Higgins in the ac-

tivities alleged in the Indictment. The D.E.A. pursued

no additional investigative activity until February 1,

1974, when a D.E.A. agent attended an inter-agency

meeting consisting of United States Customs, United

States Coast Guard, D.E.A., Dade County Public

Safety Department and the City of Miami Beach Police

Department, at which time the alleged smuggling ac-

tivities of the Petitioners Higgins and Miller were dis-

cussed, along with those of Robert West and Kenny

Randall. During February, 1974, a “‘cross-reference’”’ file

was compiled on the Petitioners. Except for a second in-

terview with Thurlow in July, 1974, the D.E.A. conduc-

ted no further investigative activities and the Miami of-

fice of D.E.A. again “closed” its files on Petitioners in

October, 1975. One month later, in November, 1975, the

D.E.A. “Conspiracy Unit” began an investigation of the

Petitioners based or information supplied by the Dade

County Public Safety Department.

In the méantime, in February, 1974, the Dade

County Public Safety Department had arrested the

Petitioners for possession with intent to distribute 1,500

lbs. of marijuana. Information regarding Petitioners’

arrests was sent to the Miami office of the D.E.A. The

charges were ultimately dismissed by the 11th Judicial

Circuit Court in and for Dade County, Florida.

In October, 1975, Petitioner Higgins was arrested

by Bahamian officials in the Bahamas and charged with

possession of marijuana. Both the D.E.A. and the Dade

County Public Safety Department were notified of this

arrest. The Bahamian charges were ultimately dis-

missed. Little, if any, significant investigative activity

followed the October, 1975 arrest of Petitioner Higgins

before the Indictments in this case and in the related

Fifth Circuit Case No. 77-5321 (U.S. District Court Case

No. 76-343-Cr-CA) were returned.*

After a trial by jury at which the Petitioners were

found “Guilty”, the District Court sentenced the

Petitioner Higgins to a term of one year’s imprisonment

to be followed by a two-year special parole term.

Petitioner Miller was sentenced to six months’ incar-

ceration, followed by three years’ probation.

Facts as to Fifth Circuit Case No. 77-5321

U.S. District Court Case No. 76-343-Cr-CA:

On July 29, 1976, the Petitioner Higgins was in-

dicted and charged with one count of Conspiracy to

Possess with intent to Distribute Marijuana in Novem-

ber and December, 1971, contrary to 21 U.S.C. §846.

The Indictment alleged, in part, that on or about

November 5, 1971, the motor vessel ‘“‘Alisan”’ departed

Miami ard returned on or about November 15, 1971,

bearing the Petitioner as a passenger.

As indicated in the Preliminary Statement and in

the previous Statement of Facts in Fifth Circuit Case

*The decision to seek an indictment in Federal, rather than

State, Court was made by the Dads County Public Safety Depart-

ment because of statutes of limitation considerations and the fact

that state law enforcement officers felt it was “easier” to obtain a

conspiracy conviction in Federal rather than State, Court.

10

No. 77-5194, Petitioner Higgins and the vessel “Alisan”

were being investigated by federal authorities for

suspected marijuana smuggling activities. As indicated

in Petitioners’ Time/Fact Sequence Chart, Appendix

“I? between November, 1971 and July and August,

1976, three potential defense witnesses died, one of

whom was Higgins’ roommate between November, 1971

and March, 1972, thus denying Petitioner Higgins possi-

ble defense witnesses supporting his defense of Alibi in

this case.

On September 14, 1976, the Petitioner’s Motion for

Bill of Particulars (Appendix “C”) was denied with

respect to whether the dates in the Indictment were the

exact dates on which the Government had alleged the

event in question to have occurred (Appendix “D”’).

At the Petitioner’s non-jury trial, the Government

presented the following testimony. Richard Thurlow,

who identified the time period of the smuggling venture

on the vessel “‘Alisan” as being between November 1-17,

1971, during which time frame the roundtrip from

Miami to Jamaica and back took ten days. There was no

testimony by Thuriow of anything unusual about

Petitioner’s appearance or health.

Glenda Walters was the Government’s next witness

during its case in chief. Again, Ms. Walters did not

testify as to anything unusual about Petitioner ~

physical condition or appearance during the ocean-going

voyage. Ms. Walters testified at length concerning the

Petitioner’s adroit physical activities on the ‘“Alisan”’

while it was on the high seas which included !ifting a

200-lb. trash compactor.

11

By agreement with the Government, Petitioner was

permitted to call Dr. Robert J. Slutsky, an orthopedic

surgeon, out of turn, who testified on behalf of the

Petitioner that he had placed a knee-to-toe cast on the

Petitioner on October 29, 1971. The cast was a pink soft

plastic cast. Doctor Slutsky testified that he replaced

the cast on November 9, 1971 and saw the Petitioner

Higgins on November 10, 16 and 19 and December 3,

1971.

After the Government rested and Petitioner’s Mo-

tion for Judgment of Acquittal was denied, Petitioner

called, in addition to Dr. Slutsky, Dr. Charles Mutter, a

prominent forensic psychiatrist, whose testimony went

to the suggestibility and believability of Ms. Walters. In

addition, Petitioner introduced the psychiatric records

of both Thurlow and Ms. Walters. Following this,

Petitioner rested.

Ms. Walters, called back to the witness stand by

the Government, testified in rebuttal that she suddenly

recalled that Petitioner Higgins had a white cast on his

leg during the boat trip (which, if true, could only have

been between November 19 and December 3, 1971, ac-

cording to Dr. Slutsky’s testimony and, thus, outside

the time frame of the Indictment).

After the Government rested with this rebuttal

testimony, Petitioner renewed his Motion for Judgment

of Acquittal which was denied. The District Court found

Higgins guilty of conspiracy to import marijuana in

violation of 21 U.S.C. §846. The Court sentenced

Petitioner to six months’ imprisonment, to be followed

by two years’ parole. This sentence was consecutive to

12

the sentence imposed in Fifth Circuit Case No. 77-5194,

United States District Court Case No. 76-377-Cr-WM.

Both cases were appealed to the Fifth Circuit Court

of Appeals and consolidated for the purpose of oral argu-

ment. The Fifth Circuit affirmed Petitioners’ convic-

tions, holding that Petitioners Higgins and Miller had

not crossed the threshold of establishing actual pre-

judice resulting from pre-indictment delay and, further,

that Petitioner Higgins’ other arguments were “‘without

merit’’.

13

REASONS FOR GRANTING THE WRIT

| PRE-INDICTMENT DELAY (BOTH CASES) ]

There exists a conflict between the Fifth and Eighth

Circuit Courts of Appeal as to whether a Defendant has

the burden of proving actual prejudice resulting from

pre-indictment delay or whether the burden shifts to the

Government to prove non-prejudice after a Defendant

has set out a potentially-demonstrable claim of prej-

udice. In affirming the Petitioners’ convictions, the

Fifth Circuit held that it was inferable from its prior

decisions that “Defendants generally bear the burden of

establishing actual prejudice.”

Placing the ultimate burden of establishing actual

prejudice on the Defendant often places an insur-

mountable barrier to the Defendant’s presentation of a

claim of pre-indictment delay which violates due

process of law, contrary to the Fifth Amendment. That

Defendant may not have had the benefit of years of

preparation as the Government has. Often, a defendant

is unable to speak to witnesses until after their memory

has diminished or completely faded. This is especially

true where the defendant has not been indicted until

years after the incident in question. Potentially ex-

culpatory witnesses may move from the community

before a defendant has had an opportunity to secure

their cooperation, testimony and/or statements. A

defendant may never know what knowledge a witness

possessed where the witness has died prior to the filing

of an Indictment, an act, the timing of which the ac-

cused has no control over.

14

A defendant’s inability to answer the above ques-

tions results in his claim of prejudice being labelled

“speculative” and “insufficient”. However, the Govern-

ment may well be in possession of information from, or

about, the missing or deceased witness, which may be of

benefit to the accused in establishing his claim, and

which, in limited circumstances, the Government may

have a duty to reveal. Brady v. Maryland, 373 U.S. 83,

83 S.Ct. 1194 (1963); A.B.A. Code of Professional

Responsibility D.R. 7-103 (B).

The Eighth Circuit in United States v. Barket, 530

F. 2d 189 (8th Cir. 1975) cert. den. 429 U.S. 917, 97S.Ct.

308 (1976), on a claim of prejudice resulting from

deceased witnesses and witnesses with faded memories

has shifted to the Government the burden of es-

tablishing that the missing or deceased witnesses and

those with faded recollections did not possess ex-

culpatory information. See, also, United States v. Nor-

ton, 504 F.2d 342 (8th Cir. 1974) cert. den. 419 U.S.

1113, 95 S.Ct. 790 (1970).

The lead case on pre-indictment delay absent an

arrest is, of course, U.S. v. Marion, 404 U.S. 307, 92

S.Ct. 455 (1971). Since the decision in Marion, the Fifth

as well as other Circuits, have had ample opportunity to

consider the extent to which a defendant’s claim of a

denial of due process should be expanded. This Court’s

most recent interpretation of Marion is found in U.S. v.

Lovasco, 431 U.S. 738, 97 S.Ct. 2044 (1977). In Lovasco,

supra, this Court held that pre-indictment delay which

was part of a continuing investigation did not deprive a

defendant of due process of law even if his defense may

have been prejudiced by the pre-indictment delay.

Alternatively, it seems clear that where the pre-

15

indictment delay is not part of a continuing investiga-

tion, no such justification, as in Lovasco, exists for the

delay and, hence, the burden ought to shift to the

Government to show non-prejudice.

Prejudice, under the Fifth Circuit Rule, is a

threshold question that must be satisfied before the

defendant can present evidence on the reasons for the

delay. The Fifth Circuit Rule of requiring a defendant to

bear the burden of proving actual prejudice is a rule of

mechanistic application which ignores the realities of

the criminal justice system. It is the Government which

brings about the act of investigation and the ultimate

act of indictment and arrest. It is far better that con-

sideration be given to the reasons for the delay and

whether the Government possessed, or is likely to

possess, the necessary information to proceed with the

prosecution.

The Eighth Circuit Rule of shifting the burden to

the Government in appropriate cases is a much more

flexible, realistic and workable rule. That Circuit’s rule

recognizes that several factors should be considered in

determining who has the burden of proof on the issue of

prejudice. Implicit in the Eighth Circuit’s view is that

when the period of delay is great, as here, over four

years, then the burden shifts to the Government after a

defendant has articulated a tenable claim of prejudice.

Cases involving pre-indictment delay may be

divided into two categories. The first is where delay has

averaged approximately eighteen months and there has

been investigative delay. This is the most common case

and relief is barred by Lovasco, supra. The second

category involves a much greater period of delay, i.e., an

16

average of forty-eight months. That delay is usually not

as a result of an on-going or continuing investigation.

This is the category into which Barket, supra, and

Petitioners’ cases fall.

Petitioners contend that the appropriate standard

for imposing the ultimate burden of proof on the issue of

prejudice should be the Eighth Circuit’s Rule. Con-

sideration should be given to the length of the delay, the

availability of information to the defendant, the reason

for the delay, and the likelihood that the Government

possesses information on these issues, or at least is in a

better position to determine same. Any other standard

renders the time-honored adage ‘Justice delayed is

justice denied” meaningless.

17

STATEMENT OF PARTICULARS

As to Fifth Circuit Case No. 77-5321,

U.S. District Court Case No. 76-343-Cr-CA:

The rule in the Fifth Circuit concerning the pur-

poses of a Bill of Particulars is “‘to inform the defendant

of the nature of the charge against him with sufficient

precision to enable him to prepare his defense, and to

avoid or minimize the danger of surprise at trial.”

United States v. Martinez, 466 F.2d 679 (5th Cir. 1972)

[emphasis added]; United States v. Bearden, 423 F.2d

805 (5th Cir. 1970), cert. den. 400 U.S. 836, 91 S.Ct. 73

(1970). While the Government need only prove the com-

mission of an offense within the period of the Statute of

Limitations, an implicit purpose of a bill of particulars

is to specify a particular date as near as possible to the

commission of the offense so as to enable or allow the

defendant to prepare his defense, if any, to the charge.

In appropriate cases, as here, the Defendant’s defense

may include the defense of Alibi.

Sub judice, the Defendant contended that he could

not have been on the vessel during the time period in

question engaging in the acts alleged in the Indictment

as testified to by the Government’s witnesses because

during that time period, he was being seen in Miami by

Dr. Slutsky and, in addition, had a cumbersome cast on

his leg. By denying the Defendant’s Motion for Bill of

Particulars, the Government was able to prove up its

case within any time period, thus vitiating the Defen-

dant’s alibi defense.

In some cases, the Government may not be able to

specify or narrow the dates as precisely as requested by

18

the Defendant. But, it is the Government’s respon-

sibility to object to, or answer, the Defendant’s Motion

by stating that it is unable to specify the dates. Sub

judice, that was not the case as consistent with the

allegations in the Indictment, one of the Government’s

witnesses, Thurlow, testified to a time period of between

November 1 and November 17, 1971, as being the time

during which the alleged sea-going smuggling venture

occurred. The District Court ought not deny a defen-

dant’s request for particulars on the ground that the

Government is unable to supply the requested informa-

tion where the Government has not stated that it is un-

able to do so. A denial under these circumstances is an

abuse of discretion, the effect of which was to obviate

any meaningful alibi defense available to the

Defendant.

The Fifth Circuit has departed from its own prece-

dent in refusing to review the lower court’s abuse of dis-

cretion. During argument on Defendant’s Motion for

Judgment of Acquittal, Defendant pointed out that the

Government’s testimony as to dates was inconsistent

with Defendant’s defensive alibi, i.e., Defendant had a

cast on his leg between October 29, 1971 and November

19, 1971 — almost the exact time period the Govern-

ment alleged and proved the marijuana and smuggling

trip took place on the high seas (November 1 — Novem-

ber 17, 1971). The Trial Court’s answer was that the

Government was not required to prove the dates with

particularity (because Defendant’s Motion for a Bill of

Particulars as to the time frame had been denied). See,

Appendix “‘C” and “D’’. Thus, the Trial Court’s ar-

bitrary denial of Petitioner’s Motion for Bill of Par-

ticulars (which was unopposed by the Government) as

to a specific date has resulted in a denial of due process

19

of law and a fair and impartial trial guaranteed by the

Fifth and Sixth Amendments to the United States Con-

stitution where, as here, the defense of Alibi was

claimed and proved. The only time the Defendant could

have, consistent with Dr. Slutsky’s testimony, been

engaged in the venture described was between Novem-

ber 19 and December 3, 1971 when Dr. Slutsky testified

he did not see Petitioner Higgins. Had the Motion for

Bill of Particulars been granted, the Government would

have been limited in its presentation of evidence consis-

tent with the allegations in the Indictment. Any other

proof of trial would have been inconsistent with the In-

dictment, the correct remedy for which would have been

the granting of the Defendant’s Motion for Judgment of

Acquittal.

CONCLUSION

Based upon the above and foregoing arguments,

Petitioners Higgins and Miller request this Honorable

Court to grant the Petition for Writ of Certiorari and

thereafter reverse their respective Judgments and Sen-

tences in Fifth Circuit Case No. 77-5194 (U.S. District

Court Case No. 76-377-Cr-WM); Petitioner Higgins

further requests this Court to grant his Petition for Writ

of Certiorari and thereafter reverse his Judgment and

Sentence in Fifth Circuit Case No. 77-5321 (U.S. Dis-

trict Court Case No. 76-343-Cr-CA).

Respectfully submitted,

HIRSCHHORN & FREEMAN,

P.A.

Attorneys for Petitioners Higgins

and Miller

742 N.W. 12th Avenue

Miami, Fla. 33136

Telephone: (305) 324-5320

By:

JOEL HIRSCHHORN

21

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the

foregoing Petition for Writ of Certiorari to the United

States Court of Appeal for the Fifth Circuit were mailed

to THE SOLICITOR GENERAL OF THE UNITED

STATES, Department of Justice Building, Room 5614,

Washington, D.C. 20530, and copies were also mailed to

THE OFFICE OF THE U.S. ATTORNEY, 300 Ainsley

Building, Miami, Florida 33132 and to the CLERK,

U.S. COURT OF APPEALS FOR THE FIFTH CIR-

CUIT, 600 Camp Street, Room 102, U.S. Courthouse,

New Orleans, Louisiana 70130, this day of May,

1978.

JOEL HIRSCHHORN

Appendix

INDEX TO APPENDICES

APPENDIX A. — Opinion, United States v. Robert

oid. as cebbdddaeneoses

APPENDIX B. — Indictment — United States v.

Thomas Swan, et al., Case No. 76-343-Cr-CA

United States District Court, Southern District

ene

APPENDIX C. — Motion for Bill of Particulars

and Incorporated Memorandum of Law.......

APPENDIX D. — Order in Case No. 76-343-Cr-CA

dated September 31, 1978. ....................

APPENDIX E. — Judgment in Case No. 77-5194

United States Court of Appeals for the Fifth

PE dccdcdnkutasdhakaabbndssenieanatendens

APPENDIX F. — Judgment in Case No. 77-5321

United States Court of Appeals for the Fifth

DD diiniekdcacneankebnasbacsnencechensude

APPENDIX G. — Letter of April 14, 1978 from the

Clerk of the U.S. Court of Appeals for the Fifth

Circuit advising that Petition for Rehearing

EN duke nce oneteticidscececsaundeaenes

APPENDIX H. — Statutory and Constitutional

Provisions —

App. 1

11

14

18

21

23

25

27

CONSTITUTIONAL PROVISION:

Amendment V — U.S. Constitution ......

STATUTORY PROVISIONS:

Pe Ec ednsaanidcenectcssensunces

Be I NN i peunittadsdiecsinnieweds

APPENDIX I. — TIME SEQUENCE CHART...

App. 2

UNITED STATES of America,

Plaintiff-Appellee,

V.

Robert WEST, Kenny Randall, Robert Higgins,

William Miller and Thomas Swan,

Defendants-Appellants.

UNITED STATES of America,

Plaintiff-Appellee,

V.

Robert HIGGINS and Thomas Swan,

Defendants-Appellants.

Nos. 77-5194 and 77-5321.

United States Court of Appeals,

Fifth Circuit.

Feb. 21, 1978.

Defendants convicted in the United States District

Court for the Southern District of Florida at Miami,

William O. Mehrtens, J., appealed. The Court of Ap-

peals, Alvin B. Rubin, Circuit Judge, held that: (1)

where defendants showed no prejudice from preindict-

ment delay and no violation of constitutional right to

due process other than mere delay in indictment, they

were not entitled to reversal of their convictions and dis-

App. 3

missal of charges against them, and (2) where an issue

under the Interstate Agreement on Detainers, as af-

fecting one defendant, was the same as an issue before

the United States Supreme Court in other case decision

of the case before the Court of Appeals would not be

delayed pending action by the Supreme Court, but ap-

peal of the one defendant would be severed and the deci-

sion in it would abide the result in the case before the

Supreme Court.

Judgments affirmed except appeal of one defendant

in case No. 77-5194.

1. Constitutional Law — 265

Court, in evaluating asserted due process violation

based on preindictment delay, must consider both

reasons for delay and prejudice to accused, but in iden-

tifying violation, prejudice to accused is the threshold

criterion.

2. Criminal Law — 576(11)

Defendants generally bear burden of establishing

actual prejudice from preindictment delay.

3. Criminal Law — 1166(1)

Where defendants showed no prejudice from prein-

dictment delay and no violation of constitutional right

to due process other than mere delay in indictment, they

were not entitled to reversal of their convictions and dis-

inissal of charges against them.

App. 4

4. Criminal Law — 1181

Where issue under Interstate Agreement on

Detainers, as affecting one defendant on appeal to Court

of Appeals, was before United States Supreme Court in

another case, decision of case before Court of Appeals

would not be delayed pending action by Supreme Court,

but appeal of the one defendant would be severed and

decision in it would abide result in case before Supreme

Court. Interstate Agreement on Detainers Act §§ 1 et

seq., 2, art. IV(c), 18 U.S.C.A. App.

Appeals from the United States District Court for

the Southern District of Florida.

Before COLEMAN, HILL, and RUBIN, Circuit

Judges.

ALVIN B. RUBIN, Circuit Judge:

The defendants in these two criminal cases, as so

many others have done since the decision in United

States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30

L.Ed.2d 468,! urge that they have been denied due

'\See, e.g., United States v. Bowdach, 5th Cir. 1977, 561 F.2d

1160; United States v. Brand, 5th Cir. 1977, 556 F.2d 1312; United

States v. Smyth, 5th Cir. 1977, 556 F.2d 1179; United States v.

Shaw, 5th Cir. 1977, 555 F.2d 1295; United States v. Garza, 5th Cir.

1977, 554 F.2d 257; United States v. Catano, 5th Cir. 1977, 553 F.2d

497; United States v. Netterville, 5th Cir. 1977, 553 F.2d 903;

United States v. Rice, 5th Cir. 1977, 550 F.2d 1364, all decided this

year. A cursory computer check reveals that at least 33 cases on

preindictment delay have been decided in the Fifth Circuit alone

since Marion.

App. 5

process because of pre-indictment delay and that this

denial of their constitutional rights requires reversal of

their convictions and dismissal of the charges against

them. Their motions on this ground are without merit

because the defendants have not been prejudiced by the

delay.

In every instance in which a like motion has been

raised in this circuit, it has been denied. However,

because of variations in language in the more than thirty

post-Marion decisions by this court, counsel have been

tempted to suggest that the judges of the circuit have

not been consistent as to the applicable standards.

In this circuit, as in every other, there can be no

doubt that the criteria set forth in Marion, supra, as

elaborated in Linited States v. Lovasco, 1977, 431 U.S.

738, 97 S.Ct. 2044, 52 L.Ed.2d 752, govern cases of pre-

indictment delay, regardless of any slight variations in

the words different panels of the court have used to

paraphrase or interpret those criteria.

In Lovasco, the court said:

. . . [S]tatutes of limitations, which provide

predictable, legislatively enacted limits on

prosecutorial delay, provide “the primary

guarantee, against bringing overly stale

criminal charges,” [Marion], at 322, 92 S.Ct. at

464, quoting United States v. Ewell, 383 U.S.

116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627

(1966). But we did acknowledge [in Marion]

that the “statute of limitations does not fully

define [defendants’| rights with respect to the

events occurring prior to indictment,” id., 404

App. 6

_

a

U.S. at 324, 92 S.Ct. at 465, and that the Due

Process Clause has a limited role to play in

protecting against oppressive delay.

431 U.S. at 789, 97 S.Ct. at 2048, 52 L.Ed.2d at 758. The

court continued:

. . . [P]roof of actual prejudice makes a due

process claim concrete and ripe for adjudica-

tion, [but does not make] the claim

automatically valid.

431 U.S. at 789, 97 S.Ct. at 2048, 52 L.Ed.2d at 759.

* * * * * *

Thus Marion makes clear that proof of prej-

udice 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 ac-

cused.

431 U.S. at 790, 97 S.Ct. at 2049, 52 L.Ed.2d at 759.

[1] These statements require that a court, in

evaluating an asserted due process violation based on

pre-indictment delay, consider both the reasons for the

delay and the prejudice to the accused. But in identify-

ing a violation, prejudice to the accused is the threshold

criterion. As this court recently repeated in United

States v. Brand, 5th Cir. 1977, 556 F.2d 1312, 1316:

App. 7

The Supreme Court has held that Marion

requires a showing of actual prejudice. United

States v. Lovasco, 431 U.S. 738, 97 S.Ct. 2044,

52 L.Ed.2d 752; see United States v. McGough,

5 Cir. 1975, 510 F.2d 598; United States v.

Beckham, 5 Cir. 1975, 505 F.2d 1316, cert.

denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d

104; United States v. Zane, 5 Cir. 1973, 489

F.2d 169, cert. denied, 1974, 416 U.S. 959, 94

S.Ct. 1975, 40 L.Ed.2d 310.

[2] Though not expressly stated in the prior cases,

it is readily inferable from the decisions of this court

that the defendants generally bear the burden of es-

tablishing actual prejudice. United States v. Bowdach,

5th Cir. 1977, 561 F.2d 1160; United States v. Netter-

ville, 5th Cir. 1977, 553 F.2d 903; United States v. Rice,

5th Cir. 1977, 550 F.2d 1364; United States v. Butts, 5th

Cir. 1975, 524 F.2d 975; United States v. McGough, 5th

Cir. 1975, 510 F.2d 598. But see United States v. Barket,

8th Cir. 1975, 530 F.2d 181, cert. denied, 1976, 429 U.S.

917, 97 S.Ct. 308, 50 L.Ed.2d 282.

[3] We need not probe here for the characteristics

of the possible case that might create an exception to

this “generally necessary” element.? Here the defen-

dants have neither crossed the threshold nor shown that

its pretermission is warranted by some violation of the

defendants’ constitutional right to due process other

than mere delay in indictment.

2See United States v. Avalos, 5th Cir. 1976, 541 F.2d 1100, 1107

& n.9.

App. 8

[4] The defendant Swan, in the two-defendant

case, 77-5321, urges that the charges against him be dis-

missed under the Interstate Agreement on Detainers,

which applies to federal prosecutions, P.L. 91-538, 84

Stat. 1397-1403 (1970). Resolution of the issue depends

on whether a writ of habeas corpus ad prosequendam is

a detainer within the terms of the Agreement.

Swan was serving a Mississippi state sentence when

he was brought by writ to Florida on October 27, 1976.

Trial was scheduled for November 8, 1976. On Swan’s

motion for a continuance, the trial was reset for Decem-

ber 6, 1976. In December 1976, Swan was returned to

Mississippi for a federal trial and returned to Florida in

January, 1977 in the five-man case. On April 13, 1977,

Swan was returned to federal authorities for sentencing,

and a new writ issued to bring Swan to trial in the two-

man case on May 5, 1977.

If the first writ was a “‘detainer,’”’ then the United

States failed to comply with the 120-day rule. The law of

this circuit is that a writ is not a “detainer”’ for [AD pur-

poses, Interstate Agreement on Detainers Act, art.

IV(c). U.S. v. Scallion, 5th Cir. 1977, 548 F.2d 1168.

While this exact issue is now before the Supreme Court

in United States v. Mauro, 2d Cir. 1976, 544 F.2d 588,

cert. granted, 1977, US. , 98 S.Ct. 53, 54

L.Ed.2d 71, decision of this case should not be delayed

pending action by the court. Swan’s sentence in this

case is consecutive to the sentence in 77-5194. West, the

other defendant in this case, will not be affected by the

Mauro decision. For this reason, Swan’s appeal in 77-

5194 will be severed, and the decision in that case will

abide the result in Mauro.

App. 9

The court has heard oral argument on these issues

and on the remaining ones raised by counsel. Having

carefully considered the oral argument and the briefs,

we conclude that the other contentions raised as bases

for the appeal are without merit.

Consequently, each of the judgments appealed from

is AFFIRMED, except the appeal of Swan in 77-5194.

App. 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

No. 76-343-Cr-CA

21 USC 846

M/S $15,000 — 5 Yrs.

UNITED STATES OF AMERICA

v.

THOMAS SWAN, ROBERT HIGGINS,

PETER NIELSON, SAL BLACK,

MARK CANTINO, DOUGLAS LNU,

and MICHAEL LNU

The Grand Jury charges that:

COUNT I

Commencing at a time unknown to the Grand Jury

and continuing until on or about December 1, 1971, in

Dade County, Southern District of Florida, Jamaica,

and elsewhere, the defendants,

THOMAS SWAN, ROBERT HIGGINS,

PETER NIELSON, SAL BLACK,

MARK CANTINO, DOUGLAS LNU,

and MICHAEL LNU,

did knowingly and wilfully and unlawfully combine,

conspire, confederate and agree with each other and

App. 11

with other persons to commit offenses against the

United States, to-wit: to violate Title 21, United

States Code, Section 952(a).

It was part of said conspiracy that defendants

would knowingly and intentionally import into the

United States from Jamaica quantities of marijuana, a

Schedule I non-narcotic controlled substance.

The Grand Jury further charges that the defen-

dants, in order to effect and achieve the goals of the con-

spiracy did at or about the times and places hereinafter

referred to commit certain overt acts, among which are

the following:

OVERT ACTS

1. On or about October 15, 1971, ROBERT

HIGGINS, PETER NIELSON, MICHAEL LNU,

DOUGLAS LNU and MARK CANTINO met with

THOMAS SWAN at Miami, Southern District of

Florida.

2. Between October 15, 1971, and October 30,

1971, THOMAS SWAN met with SAL BLACK,

DOUGLAS LNU, MICHAEL LNU and MARK CAN-

TINO in Jamaica.

3. On or about November 1, 1971, THOMAS

SWAN traveled by air from Miami, Southern District of

Florida, to Montego Bay, Jamaica.

4. On or about November 5, 1971, the motor vessel

“ALISAN” departed Miami, Southern District of

App. 12

ee

Florida, with THOMAS SWAN, ROBERT HIGGINS

and PETER NIELSON as passengers.

5. On or about November 10, 1971, THOMAS

SWAN met with SAL BLACK at Land Overy Estates,

Jamaica.

6. On or about November 15, 1971, the motor

vessel ““ALISAN”’ arrived at Miami, Southern District

of Florida, with THOMAS SWAN, PETER NIELSON

and ROBERT HIGGINS aboard as passengers.

All in violation of Title 21, United States Code, Sec-

tion 846.

A TRUE BILL

FORMAN

ROBERT W. RUST

UNITED STATES ATTORNEY

By:

DONALD L. FERGUSON

Assistant United States Attorney

App. 13

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 76-343-Cr-CA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

ROBERT HIGGINS, et al.,

Defendants.

MOTION FOR BILL OF PARTICULARS AND

INCORPORATED MEMORANDUM OF LAW

COMES NOW the Defendant, ROBERT

HIGGINS, by and through his undersigned attorneys,

and moves this Honorable Court for a Bill of Particulars

to set forth with specificity the following items:

MOTION AND MEMORANDUM

1. State the following:

a) When the alleged conspiracy commenced.

b) Where the alleged conspiracy commenced.

c) The exact manner in which the conspiracy

was to have achieved its purpose.

App. 14

d) The exact agreement, combination and

confederation between the Defendants.

e) Which, if any, of the defendants had in

their actual or constructive possession any of the mari-

juana in question.

f) Any other overt acts known to or believed

by, the Government to have been done or effected by

defendants.

2. State the following:

a) Who are the “other persons” as alleged in

the Indictment to have been involved with defendant.

b) Who is DOUGLAS LNU.

c) Who is MICHAEL LNU.

d) Whether the “ALISAN” was under sur-

veillance in 1971 by any federal, state, or local law

enforcement or governmental agency and, especially,

during the times alleged in the Indictment herein.

e) Whether the dates alleged in the overt acts

in the Indictment are the-exact dates on which the

Government alleges the events in question are to have

occurred.

3. State the following:

a) When information was first received by any

agent of the federal, state or local government that

App. 15

resulted in the institution of an investigation of the

charges contained in the Indictment.

b) When the investigation of the charges con-

tained in the Indictment were first instituted and what

prompted their institution.

c) Whether any indicted defendant or unin-

dicted co-conspirator named or unnamed was acting on

behalf of the government in the capacity of an agent or

informant or cooperating individual during any part of

the alleged conspiracy, or since the termination of same.

d) If the answer to the above is “Yes’’, state

with particularity the inducements, promises or pay-

ments made to said person or persons, including but not

limited to the formal or informal granting of immunity

and/or a promise of a more lenient sentence in exchange

for that person or person’s cooperation.

4. This Motion is within the language and intent

of Rule 7(f), Federal Rules of Criminal Procedure,

where, as here, it is necessary in order to enable the

Defendants to be fully and properly apprised by a

“plain, concise and definite written statement of the es-

sential facts constituting the offense charged,’’ Rule

7(c) (1), Federal Rules of Criminal Procedure; see also

Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038

(1962).

WHEREFORE, the undersigned prays the within

Motion be granted.

App. 16

Respectfully submitted,

HIRSCHHORN & FREEMAN,

P.A.

Attorney for Movants

742 N.W. 12th Avenue

Miami, Fla. 33136

Tel.: 324-5320

By /s/ Joel Hirschhorn

JOEL HIRSCHHORN

I HEREBY CERTIFY that a true and correct copy

of the foregoing Motion for Bill of Particulars and Incor-

porated Memorandum of Law was mailed this 14th day

of September, 1976 to DONALD FERGUSON, ESQ.,

Assistant U.S. Attorney, 14 N.E. First Avenue, Miami,

Florida.

/s/ Joel Hirschhorn

JOEL HIRSCHHORN

App. 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 76-343 CR-CA

[FILED SEP 21, ’76]

UNITED STATES OF AMERICA,

Plaintiff,

-V8s-

ROBERT HIGGINS, et al.,

Detendants.

ORDER

The defendant ROBERT HIGGINS’ various mo-

tions have been referred to the undersigned for disposi-

tion pursuant to Local Rule 10G. The Court having con-

sidered said motions and memorandum of law submit-

ted in support thereof, and being otherwise fully advised

in the premises, it is

ORDERED AND ADJUDGED as follows:

1. The Motion for All “Jenck’s’ Material is

denied, without prejudice to the defendant to refile to

refile the motion for disclosure pursuant to 18 U.S.C.

3500. See United States v. Lyles, 471 F.2d 1167 (5th Cir.,

App. 18

1972); United States v. Harris, 458 F.2d 670, 676 (5th

Cir., 1972).

2. The Motion for Bill of Particulars is DENIED,

except as otherwise provided in the Standing Discovery

Order previously entered herein, and except that the

government having charged that the named defendant’s

conspired with other persons to the grany jury unknown,

shall disclose to the defendant the names of such person

if their identities are presently known or become known

during the course of these proceedings. United States v.

Dioguardi, 332 F.Supp. 7 (D.C. N.Y. 1971) and ex-

cepting Paragraph 3(c)(d) shall be granted.

3. The Motion for Discovery and Production shall

be GRANTED.

4. The Motion for Brady, and other favorable

material is GRANTED within the confines of the

Standing Discovery Order previously entered herein and

should include the material requested in Paragraph 4

(a)(b). The remainder of the Motion shall be DENIED.

5. The Motion Requiring Government To Admit

or Deny Use of Electronic Surveillance shall be Granted

in part. The government shall forthwith say whether any

or all of the defendant’s have been the subject of any

electronic surveillance.

6. The Motion For Leave to File Additional Mo-

tions is hereby Denied.

7. Motion to Adopt Co-Defendants’ Motions is

Granted and the same rulings of the Court shall prevail.

App. 19

DONE AND ORDERED at Miami, Florida this

2ist day of September, 1976.

/s/ PETER R. PALERMO

PETER R. PALERMO,

UNITED STATES MAGISTRATE

ce: Joel Hirschorn, P.A.

742 N.W. 12th Avenue,

Miami, Florida 33136

Donald Ferguson,

Assistant U. S. Attorney

300 Ainsley Building

Miami, Florida

App. 20

= ee et ee oe

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5194

D. C. Docket No. 76-377-CR-WM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT WEST, KENNY RANDALL,

ROBERT HIGGINS, WILLIAM MILLER

and THOMAS SWAN,

Defendants-Appellants.

Appeals from the Unted States District Court for the

Southern District of Florida

Before COLEMAN, HILL and RUBIN, Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

App. 21

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgments .

of the said District Court in this cause be, and the same

are hereby, affirmed. The appeal of Swan will be

severed, and the decision in that case will abide the

result in Mauro.

February 21, 1978

ISSUED AS MANDATE:

App. 22

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-5321

D. C. Docket No. 76-343-CR-CA

UNITED STATES OF AMERICA,

Piaintiff-Appellee,

versus .

ROBERT HIGGINS and THOMAS SWAN,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

Before COLEMAN, HILL and RUBIN, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

App. 23

of the said District Court in this cause be, and the same

is hereby, affirmed.

February 21, 1978

ISSUED AS MANDATE:

App. 24

» ae ns a SR mes 0s eee Be ne. oe

Mahe ost soem oo nes

eee see eee Os Le OE RS tee et

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

April 14, 1978

TO ALL PARTIES LISTED BELOW:

NO. 77-5194 — U.S.A. vs. Robert West, Kenney Ran-

dall, Robert Higgins, William Miller & Thomas Swan

77-5321 — U.S.A. vs. Robert Higgins & Thomas Swan

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition(s) for rehearing, and no mem-

ber of the panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the petition(s)

for rehearing en banc has also been denied. *

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

*filed on behalf of Messrs. West, Higgins, Miller and Swan

App. 25

cc Mr

Mr

Mr

Mr

Ms

Mr

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By /s/ CLARE F. SACHS

Deputy Clerk

. Paul M. Korchin

. Jack J. Taffer

. Joel Hirschhorn

. Fred Haddad

. Karen L. Atkinson

. Charles O. Farrar, Jr.

App. 26

em a) ee een!

ene

se a nn on

ee anaemia

APPENDIX H.

Constitutional and Statutory Provisions Involved.

1. Constitutionai:

AMENDMENT V.

UNITED STATES CONSTITUTION

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual ser-

vice in time of war or public danger; nor shall any person

be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself; nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

2. Statutory:

21 U.S.C. §846. Attempt and Conspiracy

Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable by

imprisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the

commission of which was the object of the attempt or

conspiracy.

21 U.S.C. §963. Attempt and Conspiracy

App. 27

Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable by

imprisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the

commission of which was the object of the attempt or

conspiracy.

App. 28

TIME SEQUENCE CHART

U.S.

ATTY.

COAST GUARD

PUBLIC SAFETY UNITEDSTATES

DEPARTMENT

DADE COUNTY

DEA (BNDD)

CUSTOMS

YEAR

1971

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g°5 86 BE GS

eo< sa2s

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es ELE

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3 & 5

App. 29

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arrested implicate

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