United States v. A. Guy Crouch, III and Michael J. Frye

51 F.3d 480

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 14, 1995
• Docket: 93-7719
• Status: Published

Opinions

POLITZ, Chief Judge:

The district court dismissed indictments against A. Guy Crouch, III and Michael J. Frye which arose out of alleged illegal banking activity. For the reasons assigned, we affirm.

Background

In March of 1986, while examining the records of Delta Savings Association of Texas, a failed institution, federal investigators discovered that the institution had been engaged in a “cash for trash” scheme.¹ Delta officials violated federal regulations which prohibited excessive loans to one borrower by using bogus nominee borrowers who bore no personal liability for the loans contracted.

. Criminal referrals issued for Carl Gerjes, Delta’s president, Robert Ferguson, an involved real estate investor, Crouch, Delta’s attorney and chairman of its board of directors, and Frye who allegedly acted through a corporate alter ego, JMG Financial, as a nominee borrower for Ferguson. In 1986 the government began an investigation into Delta’s activities, focusing- on Gerjes and Ferguson, leading to the conviction of Gerjes in 1989 and his guilty plea conviction on separate but related offenses in 1992, as well as Ferguson’s conviction in 1992. On November 12, 1992 a 19-count indictment was handed up against Crouch and Frye, charging misapplication of funds, 18 U.S.C. §§ 2, 657; false entries, 18 U.S.C. §§ 2,1006; false statements, 18 U.S.C. §§ 2, 1014; and bank fraud, 18 U.S.C. §§ 2, 1344.

Citing the eight-plus years between the alleged crimes in 1984-85 and the indictment, Crouch and Frye asserted prejudice from the pre-indictment delay and moved for dismissal. A magistrate judge recommended dis: missal because of both presumptive and actual prejudice caused by the passage of time. Following a. de novo review the district court adopted the recommendation, holding that defendants had suffered presumptive prejudice because of the delay and finding actual prejudice resulting from the delay due to the unavailability of testimony because of death and memory loss and the disappearance of exculpatory records. Applying the balancing test directed in United States v. Brand² and in United States v. Townley³ for claimed violations of due process resulting from pre-indictment delay, the court found that the government’s assigned reason for delay, the lack of resources, did not outweigh the prejudice suffered by Crouch and Frye. The court dismissed the indictment; the government timely appealed.

Analysis

The government faults the district court’s use of the Bmnd/Towriley balancing test. Even assuming Crouch and Frye were able to show prejudice, the government contends that their inability to demonstrate prosecuto-rial bad faith for the dilatory indictment defeated their motion for dismissal. It cites post-Tawnley decisions for the proposition that to establish a due process violation based on pre-indictment delay a defendant must show that the prosecutor intentionally delayed the indictment to gain tactical advantage.⁴

In United States v. Marion⁵ the Supreme Court held that although the primary protection against undue delay prior to arrest, indictment, or information is the appropriate statute of limitations, the due process clause of the fifth amendment offers some protection from prejudice to a defendant’s case arising from this delay. The Court accepted, as an example, the government’s contention that if it be shown that the government had created the prejudicial delay as “an intentional device to gain tactical advantage over the accused,”⁶ due process would require the automatic dismissal of the indictment.

Following Manon we began the development of a test for violations of due process in this context. Despite the Manon Court’s express refusal to “determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution,”⁷ in dicta we used the statement that a showing of prose-cutorial bad faith required automatic dismissal for the very different proposition that such a showing was a sine qua non for the finding of a due process violation.⁸ Because the defendants in those cases were unable to make a showing of prejudice due to delay, we did not apply this statement in a dispositive ruling.

The Supreme Court next considered this issue in United States v. Lovasco,9 stating that proof of prejudice was “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 accused,”¹⁰ including the inquiry whether the delayed prosecution violates “elementary standards of fair play and decency”¹¹ and “fundamental conceptions of justice which lie at the base of our civil and political institutions.”¹² After balancing the prejudice caused by an 18-month delay against the government’s reason for delay— its continuing investigation — the Lovasco Court upheld dismissal of the indictment.

The Lovasco Court also noted that following Manon neither it nor any lower appellate court had “had a sustained opportunity to consider the constitutional significance of various reasons for delay.”¹³ Instead of passing upon this issue, the Court opted to leave such rulings to future decisions of the lower courts applying “the [aforementioned] settled principles of due process.”¹⁴

In Brand, one of our first cases applying the teaching of Lovasco, after noting that actual prejudice must be shown as a threshold matter, we stated that Lovasco did “not indicate that governmental interests not amounting to an intentional tactical delay will automatically justify”¹⁵ such prejudice. Rather, we concluded that Lovasco stood for balancing the government’s need for the delay against the actual prejudice suffered by the defendant.

We next addressed the issue in Townley and crystallized the test for due process violations thusly:

[T]he accused bears the burden of proving the prejudice and, if the threshold requirement of actual prejudice is not met, the inquiry ends there. Once actual prejudice is shown, it is necessary to engage in a sensitive balancing of the government’s need for an investigative delay against the prejudice asserted by the defendant. The inquiry turns on whether the prosecution’s actions violated fundamental conceptions of justice or the community’s sense of fair play and decency. Inherent in the adoption of a balancing process is the notion that particular reasons are to be weighed against the particular prejudice suffered on a ease-by-case basis. ... [D]ue process ... turns upon whether the degree of prejudice thereby sustained by the accused is sufficiently balanced by the good-faith reasons advanced by the government,¹⁶

The Townley court left no doubt that a showing of bad faith by the government was not a requisite for a due process violation. We noted:

[T]he Lovasco balancing test would be reduced to mere words if indeed the government’s 41-month delay in bringing the indictment were excusable, whatever the prejudice caused the defendant, simply by a showing that the government was negligent, however grossly, and not bad-intentioned.¹⁷

Several subsequent decisions overlooked Townley’s holding and relied on the dicta from pre-Lovasco cases for stating that pre-indictment delay may result in dismissal of an indictment only when the delay resulted from an ill-intentioned act by the government.¹⁸ In accordance with our long-established rule, we are bound to follow the earliest dispositive articulation of a rule as the decision of one “panel may not overrule the decision, right or wrong, of a prior panel in the absence of en banc reconsideration or superseding decision of the Supreme Court.”¹⁹ We therefore must apply the Brand/Townley, balancing test as the binding precedent. The district court correctly relied upon the holdings of Brand and Town-ley in its evaluation of the merits of defendants’ motion to dismiss.

We find merit in one part of the government’s challenge to the district court’s ruling, specifically its holding that the passage of approximately eight years from the alleged commission of the crimes to the issuance of the indictment was presumptively prejudicial. As authority the trial court cited Doggett v. United States,20 which involved posi-indictment delay, as support for the existence of presumptive prejudice in this pre-indictment delay case. We find this reliance misplaced as “pre-indictment delay does not raise a Sixth Amendment issue, but is instead examined under the due process clause of the Fifth Amendment.”²¹

Our precedents require that the triggering prejudice be actual, not presumptive. Twenty years ago we stated that

when pre-indictment delay is asserted, actual prejudice and not merely the real possibility of prejudice inherent in any extended delay is a necessary element which must be shown before the restraints of the due process clause will be applied to bar a prosecution because of a delay.²²

Toumley and subsequent decisions²³ recognized that the defendant must show proof of actual prejudice as a threshold requirement. The district court’s conclusion that there was presumptive prejudice from the mere passage of time was incorrect.

The court a’ quo also based its decision, however, upon its finding of actual prejudice, focusing upon Crouch’s loss of testimony due to the deaths of several potential witnesses, and upon Frye’s claim that critical and exculpatory documentary evidence was missing. The government challenges this finding, contending that the defendants’ claim of prejudice consists only of vague assertions of lost witnesses, faded memories, or misplaced documents.

Findings of actual prejudice are reviewed under the clear error standard.²⁴ We find no such error present. The record supports the finding of prejudice due to the above factors, reflecting that Crouch established exactly which witnesses were lost and how the lost witnesses were crucial to rebut the credibility and character of Gerjes and Ferguson, potentially the government’s star witnesses.²⁵ These potential witnesses included his father, A. Guy Crouch, Jr., who, as a former board president and major stockholder of Delta, would have testified in support of Crouch’s claim that Gerjes had misled the board and other Delta officers about his unauthorized operations. Other corroborating witnesses included Tranquillo Gubert, another director, and Larry Tschemer, former vice president of an entity involved in the scheme, who would have testified about their dealings with Gerjes and Ferguson. As Gerjes and Ferguson likely would be cooperating with the government in its prosecution of Crouch and Frye, the lost testimony would also be crucial for rebuttal and impeachment purposes.

The record also contains references to lost exculpatory documentary evidence, including a lost “Profit Participation Agreement” between Frye and Ferguson’s corporations that allegedly would have shown Frye’s intent to work with Ferguson in developing the land purchased, rebutting claims that Frye was not materially involved with the loan and land purchase. Further, the authenticity of a copy of a document constituting evidence of an overt act of the conspiracy poses a material issue. The government claims that Frye forged signatures to a waiver of notice form that allegedly facilitated his purchase of the “trash” real estate. The record establishes that only an original copy can be examined for authenticity and, as the original cannot be found, there is now no method by which Frye can show that the signatures on the waiver were authentic. The record also reflects that both Frye and Crouch had lost, either through routine disposal or surrender to authorities,²⁶ personal records that could have assisted in rebutting proof of their guilt. Some of these lost documents were irreplaceable; this fact, when combined with both expert evidence validating the defendants’ claim of memory loss and the aforementioned lost exculpatory testimony, amply supports the court’s finding that Crouch and Frye suffered significant actual prejudice.

Consistent with Townley’s holding, after finding actual prejudice from pre-indictment delay, the court must weigh the actual prejudice suffered against the reasons for the delay. The record reflects that the government had knowledge of Crouch’s and Frye’s involvement dating, at the very latest, from its August 1986 receipt of the criminal refér-rals, but did not initiate an investigation until, at the very earliest, May of 1991. The reasons for the long delay in launching the investigation were, essentially, lack of manpower and the low priority which this investigation was assigned. Although “prosecutorial overload and insufficient personnel ] might be entitled to slight weight in the balance of due process considerations,”²⁷ this slight weight is insufficient to outweigh the actual prejudice to Crouch and Frye caused by the lengthy pre-indictment delay.²⁸ Under the circumstances presented by this particular case, we conclude that requiring Crouch and Frye to stand trial now would be fundamentally unfair and violative of due process.

The judgment of the district court dismissing the indictment is AFFIRMED.

1 .Delta made loans to real estate investors conditioned on their purchase of property acquired by Delta primarily through prior defaults. The "sale” of this property reduced Delta's liabilities, lowered its required cash reserves, and artificially increased its net worth, thereby evading closer inquiry into its operations.

2 . 556 F.2d 1312 (5th Cir. 1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 763 (1978).

3 . 665 F.2d 579 (5th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982).

4 . See United States v. Byrd, 31 F.3d 1329 (5th Cir.1994); United States v. Neal, 27 F.3d 1035 (5th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995); and United States v. Amuny, 767 F.2d 1113 (5th Cir.1985).

5 . 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

6 . 404 U.S. at 322, 92 S.Ct. at 464.

7 . Id.

8 . See, e.g., United States v. Avalos, 541 F.2d 1100 (5th Cir.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1656, 52 L.Ed.2d 363 (1977); United States v. Butts, 524 F.2d 975 (5th Cir.1975).

Avalos, however, noted a caveat to use of a standard requiring a showing of prosecutorial bad faith, stating:

There is no Supreme Court authority squarely holding that satisfaction of both elements of the test is necessary to find a due process violation [and] there remains substantial doubt whether, in a case in which actual pre-accusation prejudice was overwhelming, the government's purposeful delay would have to be shown; or, alternatively, where the government's misconduct was blatant, whether the defendant would still bear the burden of showing actual prejudice.

541 F.2d at 1107 n. 9.

9 . 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

10 . Id. at 790, 97 S.Ct. at 2048.

11 . Id. at 795, 97 S.Ct. at 2051.

12 . Id. at 790, 97 S.Ct. at 2048 (citations omitted).

13 . Id. at 797, 97 S.Ct. at 2052.

¹⁴

15 . 556 F.2d at 1317 n. 7.

16 . 665 F.2d at 582 (citations omitted) (emphasis added).

¹⁷

18 . United States v. Wehling, 676 F.2d 1053 (5th Cir.1982). See also, e.g., Amuny; Byrd; Neal; and United States v. Beszborn, 21 F.3d 62 (5th Cir.), cert. denied, — U.S. --, 115 S.Ct. 330, 130 L.Ed.2d 288 (1994).

19 . Burlington Northern Railroad Co. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992), cert. denied,-U.S.-, 113 S.Ct. 1028, 122 L.Ed.2d 173 (1993) (citations omitted).

20 . — U.S. -, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

21 . Byrd, 31 F.3d at 1339 (emphasis in original); Marion.

22 . United States v. McGough, 510 F.2d 598, 604 (5th Cir.1975) (emphasis added) (citations omitted). Accord, Butts at 977 ("The mere passage of time [does] not constitute] the type of actual prejudice necessary to set aside an indictment returned within the appropriate statute of limitations. ..."); United States v. West, 568 F.2d 365, 367 (5th Cir.), cert. denied, 436 U.S. 958, 98 S.Ct. 3073, 57 L.Ed.2d 1123 (1978) ("[I]t is readily inferable from the decisions of this court that the defendants generally bear the burden of establishing actual prejudice.”).

23 . Byrd; Neal; Beszbom; Amuny.

24 . Beszborn, 21 F.3d at 66.

25 . Further, the record indicates that because of Crouch’s cooperation against Gerjes, there is the likelihood of the latter’s animosity.

26 . Crouch bases his failure to retain records in part upon his receipt, on at least three separate occasions, of assurances from the government that he was not a target of any investigation.

27 . 665 F.2d at 586.

28 . Although the actual delay was longer (by about 18 months), the period of the investigation is not considered. See Lovasco, supra.