Unpublished Disposition, 875 F.2d 319 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,v.Richard EZBA, Defendant-Appellant.

No. 88-5108.

United States Court of Appeals, Ninth Circuit.

Submitted May 4, 1989.* Decided May 17, 1989.

Before FLETCHER, NELSON, and WILLIAM A. NORRIS, Circuit Judges.


Appellant Richard Ezba was indicted for assault with a dangerous weapon in violation of 18 U.S.C. § 113(c) (count one), and possession, by an inmate, of a prohibited object (namely, a knife) in violation of 18 U.S.C. § 1791(a) (2) (count two). The indictment arose out of a December 12, 1985 incident at the United States Penitentiary in Lompoc, California, where appellant was incarcerated. Before trial, appellant moved to dismiss the indictment, claiming that an unreasonable 21-month preindictment delay by the government violated his right to due process under the Fifth Amendment. After the district court denied this motion, appellant was acquitted on count one and convicted on count two. He now appeals the district court's denial of his motion to dismiss the indictment. We affirm.

A claim of denial of due process based upon preindictment delay can only succeed if defendant can show actual, nonspeculative prejudice resulting from the delay. United States v. Marion, 404 U.S. 307, 325-26 (1971). If defendant fails to make this showing of specific prejudice, a court need not even examine the reasons for the delay. United States v. Kidd, 734 F.2d 409, 412-13 (9th Cir. 1984). Here, appellant has failed to make this showing.

Appellant argues that he was prejudiced by the delay because he cannot now locate other inmates who might have corroborated his claim that someone had placed the knife in his hand immediately before he threw it out the window. In order to show prejudice because of witness unavailability, a defendant must show the substance of the missing witnesses' testimony, and the efforts that have been made to locate them. Kidd, 734 F.2d at 413. Appellant has failed to meet these requirements.

Appellant notes that there were other inmates in the corridor at the time of the incident, but has failed to show that any of them saw whether someone put the knife in his hand. Nor is there any reason to believe all or any of those present would have necessarily witnessed the incident. Indeed, other persons in the corridor at the time of the assault have already said they did not see it, perhaps because the incident was so brief. Moreover, even if appellant could show that other prisoners witnessed the incident, he has not established that they could testify favorably to his defense. Appellant has made no showing that these witnesses would support his story rather than the government's version of the facts. Finally, appellant has not indicated what efforts have been made to locate these potential witnesses, and why those efforts have been unsuccessful. Because appellant has failed to demonstrate actual prejudice under Kidd, the district court's denial of appellant's motion to dismiss is



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


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 Circuit Rule 36-3