Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1986)

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U.S. Court of Appeals for the Ninth Circuit - 857 F.2d 1479 (9th Cir. 1986)

No. 87-1227.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL, WIGGINS,**  Circuit Judges, and JAMES M. BURNS,***  District Judge.

MEMORANDUM**** 

Kenneth Baker appeals the denial of his motion to dismiss an indictment against him for pre-indictment filing delay. We affirm.

FACTS AND PRIOR PROCEEDINGS

A criminal complaint was first filed against Baker on June 14, 1985, alleging that Baker knowingly conspired with Wilton Jones and Glenn Perry to unlawfully distribute controlled substances. Two weeks later, the government moved to dismiss the complaint without prejudice. The motion was granted. Baker moved for the return of property which was not subject to criminal forfeiture and which was seized prior to the complaint being filed against him. The government opposed this motion because it was unsure whether the items seized did in fact contain controlled substances and because it wanted to continue its investigation of Baker, Jones and Perry for manufacturing controlled substances. The district court denied Baker's motion for return of property.

On February 6, 1986, Baker was indicted for conspiracy to violate, and violating the Food, Drug and Cosmetics Act, 21 U.S.C. §§ 301-392 (1982), in manufacturing analogues of fentanyl, which is an uncontrolled variation of a controlled substance. Baker pled not guilty. A superseding indictment was filed on March 20, 1986 to which Baker also pled not guilty. Baker then moved to dismiss the indictment for violation of his right to a speedy trial. He contended that in opposing his motion for return of property, the government represented that any subsequent indictment would occur by October 1, 1985. Pursuant to this representation, Baker alleged that when that date passed he discarded evidence which would have exculpated him on the subsequent February 6, 1986 charges. The motion to dismiss the indictment was denied. After a second superseding indictment was filed, Baker pled nolo contendere to certain misbranding offenses under the Food, Drug and Cosmetic Act and was sentenced. Baker appeals denial of his motion to dismiss the indictment.

DISCUSSION

While Baker phrased his motion as a right to a speedy trial under the sixth amendment, that right does not attach before a defendant is indicted. United States v. Marion, 404 U.S. 307, 313 (1971). The claim is therefore more properly construed as a denial of due process under the fifth amendment. Id. at 324.

The leading case on pre-indictment delay is United States v. Lovasco, 431 U.S. 783 (1977), where the Supreme Court refused to dismiss an indictment for crimes which occurred eighteen months before the indictment was filed. In doing so, the Court relied on Marion to conclude that investigative delay in filing the indictment was unlike tactical delay and that proof of prejudice must be shown, with a due process inquiry to consider the reasons for the delay. Id. at 790.

Following Lovasco and Marion, we held that prejudice from the pre-indictment delay must be shown by proof that is "definite and not speculative, and the defendant must demonstrate how the loss of a witness and/or evidence is prejudicial to his case." United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985). Here, the delay between the dismissal of the original complaint and the subsequent indictment of Baker was about six months. Baker argues the delay nevertheless prejudiced him in that he destroyed: (a) letters from Jones threatening Baker to provide certain "ingredients," (b) maps and hotel receipts showing Jones' contact with Baker, (c) recipes in Jones' handwriting, (d) telephone bills showing conversation with Jones, and (e) other apparatus of Jones' which Baker possessed. Baker contends these destroyed items were essential to his coercion defense.1  In support of his showing of prejudice, Baker points to a statement made by the government during the hearing on Baker's motion for return of property. At that hearing, an Assistant United States Attorney stated:

" [W]e intend to file an indictment by October 1st. If we do not file an indictment by October 1st, we will not be filing an indictment."

Relying on this representation, Baker claims he destroyed the exculpatory evidence when October 1 passed and there was no new indictment filed.

Baker has failed to show that any evidence supports his position. Under Moran, proof of prejudice must be definite and not speculative. Baker produced no corroborating statements from Jones showing that what Baker allegedly destroyed actually existed. Certainly, Jones would know. Also, Baker did not present copies of the receipts, telephone bills and recipes he allegedly destroyed. Moreover, the delay in filing the indictment was for investigatory purposes, i.e., to determine whether the items seized contained any controlled substances or whether any other crimes could be charged.

Baker's reliance on the government's statement at the return of property hearing is also misplaced. The statement did not constitute an agreement between Baker and the government that an indictment would be filed by October 1 or not at all. The statement is more properly construed as one of good intentions by the government. The government cannot indict without probable cause and it must have sufficient evidence to convict. It was therefore entitled to delay indicting Baker until these requirements were met. See Lavasco, 431 U.S. at 796. More importantly, even if some prejudice did result to Baker, since the delay was necessitated by the need for further investigation, no due process violation occurred. Id.

Baker failed to show sufficient prejudice by the delay in filing the indictment. The cause for the delay was justifiable. For these two reasons, the district court did not err in dismissing the indictment.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Judge Wiggins was drawn to replace Judge Anderson in this appeal

 ***

The Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation

 ****

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.Rule 36-3

 1

We note that this is not a case where destruction of the evidence occurred at the hands of the government. See United States v. Roberts, 779 F.2d 565, 569 (9th Cir.), cert. denied, 107 S. Ct. 142 (1986)

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