SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Appellant was convicted by a jury on counts of armed robbery,
assault with a dangerous weapon
and carrying a pistol without a license,
and was sentenced to concurrent terms of imprisonment.
He seeks reversal on two principal
grounds. The first is that the constitutional guaranties of due process of law and speedy trial were infringed by the passage of seventeen months from the date of the offenses to the commencement of his trial. The second is that events implicating him in the crimes were so tainted that suppression of evidence identifying him as a participant was required. We hold, conversely to these claims, that the delay complained of did not contravene the Due Process Clause of the Fifth Amendment or the Speedy Trial Clause of the Sixth,
and that the forerunners of appellant’s identification were free from legal impropriety.
We accordingly affirm the conviction.
I
The offenses which are the basis of appellant’s conviction occurred about 6:40 on the evening of December 12, 1967. W. Cardell Shelton, manager of an apartment complex, was closing its rental office; with him was Wiley Barnes, a plumber, with whom Shelton was discussing recently completed repairs. Two men — face-masked by stockings and one armed with a pistol — burst through the door, firing once. The armed intruder pointed the pistol into Barnes’ face, announced that “[t]his is a holdup,” and demanded money; receiving no response, he motioned Barnes and Shelton to the back of the office, shoving Barnes in that direction. Evading the demand, Shelton turned and was moving to the rear when the gunman fired the pistol once, grazing Shelton in the stomach, and then fired again, this time into the wall. Shelton capitulated, and opened his jacket to reveal an envelope containing $800 in rental receipts. The armed man took the envelope from Shelton and struck him across the head with the butt of the pistol. As the robbers exited, the armed bandit fired another shot, creasing Shelton’s arm.
After the robbery, Shelton examined police photographs several times and identified both robbers sometime — approximately a week — prior to January 14, 1968. That date is important to the historical posture of the case because it was about then that a fire gutted an apartment under Shelton’s management
which had been leased to appellant’s wife.
On the following day, Shelton, in his capacity as property manager, entered the apartment to determine the extent of the damage. There he came across a large photograph and a smaller snapshot of a man — appellant, it developed — whom he recognized as his armed assailant of December 12. Shelton removed both pictures from the apartment and turned the larger over to the police, but retained the smaller snapshot in the hope that, by displaying it to friends, he might be able to find the party photographed. Barnes also identified appellant from police photographs as one of the two robbers.
A warrant for appellant’s arrest was issued on January 22', 1968,
and on August 12, he was indicted, but he was not arrested until October 13. When, on May 14, 1969, the ease reached trial, the court heard and denied a motion to dismiss the prosecution for prejudicial delay and another motion to suppress the identification evidence linking appellant to the crimes. During trial before the
jury, Shelton and Barnes unequivocally identified appellant from the witness stand,
and Sergeant George R. Wesley testified to their pretrial photographic identifications. Shelton also related his discovery of the photograph and snapshot in the apartment, and those items were introduced into evidence. Appellant denied participation in the robbery and endeavored to show that he was attending a vocational class when it occurred.
The jury was persuaded by the Government’s case and convicted.
II
In support of his contention that prosecution of the charges against him was unconstitutionally delayed, appellant invokes the Fifth and Sixth Amendments, and the Government recognizes that both have some applicability to the case, but appellant does not draw precisely, nor the Government accurately, the line of demarcation between the two provisions. We deem it helpful to ascertain, at the outset of discussion, the reach of each in appellant’s situation.
The Sixth Amendment incorporates the guaranty that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The phase of the criminal process to which that right extends has only recently been defined by the Supreme Court. In United States v. Marion,
the Court held that the Speedy Trial Clause has “no application until the putative defendant in some way becomes an ‘accused,’ ”
and that its protection “is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.”
More specifically, the Court continued, “it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.”
Those protections exist, the Court said, “to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”
The Fifth Amendment, on the other hand, insures among other things that “no person shall be deprived of life, liberty, or property, without due process of law.” Essential fairness is a fundamental due process requirement in criminal prosecutions,
and untoward delay in notifying the accused of the charges to be pressed breeds unfairness by adversely affecting the preparation and presentation of his defense.
Statutes barring prosecutions after lapse of designated time periods interpose “the primary guarantee against bringing overly stale criminal charges,”
but “the statute of limitations does not fully define the [accused’s] rights with respect to the events occurring prior to indictment.”
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SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Appellant was convicted by a jury on counts of armed robbery,
assault with a dangerous weapon
and carrying a pistol without a license,
and was sentenced to concurrent terms of imprisonment.
He seeks reversal on two principal
grounds. The first is that the constitutional guaranties of due process of law and speedy trial were infringed by the passage of seventeen months from the date of the offenses to the commencement of his trial. The second is that events implicating him in the crimes were so tainted that suppression of evidence identifying him as a participant was required. We hold, conversely to these claims, that the delay complained of did not contravene the Due Process Clause of the Fifth Amendment or the Speedy Trial Clause of the Sixth,
and that the forerunners of appellant’s identification were free from legal impropriety.
We accordingly affirm the conviction.
I
The offenses which are the basis of appellant’s conviction occurred about 6:40 on the evening of December 12, 1967. W. Cardell Shelton, manager of an apartment complex, was closing its rental office; with him was Wiley Barnes, a plumber, with whom Shelton was discussing recently completed repairs. Two men — face-masked by stockings and one armed with a pistol — burst through the door, firing once. The armed intruder pointed the pistol into Barnes’ face, announced that “[t]his is a holdup,” and demanded money; receiving no response, he motioned Barnes and Shelton to the back of the office, shoving Barnes in that direction. Evading the demand, Shelton turned and was moving to the rear when the gunman fired the pistol once, grazing Shelton in the stomach, and then fired again, this time into the wall. Shelton capitulated, and opened his jacket to reveal an envelope containing $800 in rental receipts. The armed man took the envelope from Shelton and struck him across the head with the butt of the pistol. As the robbers exited, the armed bandit fired another shot, creasing Shelton’s arm.
After the robbery, Shelton examined police photographs several times and identified both robbers sometime — approximately a week — prior to January 14, 1968. That date is important to the historical posture of the case because it was about then that a fire gutted an apartment under Shelton’s management
which had been leased to appellant’s wife.
On the following day, Shelton, in his capacity as property manager, entered the apartment to determine the extent of the damage. There he came across a large photograph and a smaller snapshot of a man — appellant, it developed — whom he recognized as his armed assailant of December 12. Shelton removed both pictures from the apartment and turned the larger over to the police, but retained the smaller snapshot in the hope that, by displaying it to friends, he might be able to find the party photographed. Barnes also identified appellant from police photographs as one of the two robbers.
A warrant for appellant’s arrest was issued on January 22', 1968,
and on August 12, he was indicted, but he was not arrested until October 13. When, on May 14, 1969, the ease reached trial, the court heard and denied a motion to dismiss the prosecution for prejudicial delay and another motion to suppress the identification evidence linking appellant to the crimes. During trial before the
jury, Shelton and Barnes unequivocally identified appellant from the witness stand,
and Sergeant George R. Wesley testified to their pretrial photographic identifications. Shelton also related his discovery of the photograph and snapshot in the apartment, and those items were introduced into evidence. Appellant denied participation in the robbery and endeavored to show that he was attending a vocational class when it occurred.
The jury was persuaded by the Government’s case and convicted.
II
In support of his contention that prosecution of the charges against him was unconstitutionally delayed, appellant invokes the Fifth and Sixth Amendments, and the Government recognizes that both have some applicability to the case, but appellant does not draw precisely, nor the Government accurately, the line of demarcation between the two provisions. We deem it helpful to ascertain, at the outset of discussion, the reach of each in appellant’s situation.
The Sixth Amendment incorporates the guaranty that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The phase of the criminal process to which that right extends has only recently been defined by the Supreme Court. In United States v. Marion,
the Court held that the Speedy Trial Clause has “no application until the putative defendant in some way becomes an ‘accused,’ ”
and that its protection “is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.”
More specifically, the Court continued, “it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.”
Those protections exist, the Court said, “to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.”
The Fifth Amendment, on the other hand, insures among other things that “no person shall be deprived of life, liberty, or property, without due process of law.” Essential fairness is a fundamental due process requirement in criminal prosecutions,
and untoward delay in notifying the accused of the charges to be pressed breeds unfairness by adversely affecting the preparation and presentation of his defense.
Statutes barring prosecutions after lapse of designated time periods interpose “the primary guarantee against bringing overly stale criminal charges,”
but “the statute of limitations does not fully define the [accused’s] rights with respect to the events occurring prior to indictment.”
On the contrary, “the Due Process Clause of the Fifth Amendment . . . require [s] dismissal of the indictment if it [is] shown at trial that the preindietment delay in [the] case caused substantial prejudice to [the accused’s] rights to a fair trial and that the delay was a purposeful device to gain tactical advantage over the accused.”
While the Speedy Trial Clause addresses damage to the defense and other apprehensions as well,
the concern of the Due Process Clause is erosion of the accused’s capability to muster his response to the charges.
We may now, against this backdrop, sort out the periods to which the speedy trial and due process protections respectively obtained in this ease. It will be recalled that the offenses took place on December 12, 1967; that a warrant for appellant’s arrest was issued on January 22, 1968; that appellant was indicted on the following August 12 and arrested two months later on October 13; and that the case reached trial on May 15, 1969. It thus becomes áp
parent that the speedy trial safeguard of the Sixth Amendment attached on August 12, 1968, the date of the indictment,
and extended through the ensuing nine-month period to the commencement of trial. It is also clear that the due process bulwark of the Fifth Amendment surrounded the ten-month period from the offense date to the date of appellant’s arrest, at which point he first learned that he was being charged.
The task at hand, then, is separate examination of these two periods in light of their separate criteria in order to determine whether appellant’s claim of unconstitutional delay is well founded.
Ill
Asserting that the prearrest delay in his case was avoidable, appellant argues that his belated apprehension and notification of the charges were results of police inefficiency, and that evidence which would have strengthened his defense was destroyed in the meantime. The trial judge conducted an evidentiary hearing on these protests and ruled against appellant on both. Although at one point during the course of the hearing the judge remarked that “proper diligence [had not been] used to execute the arrest warrant,” the judge later found, on fuller evidence, that “considering [their] availability and the amount of crime in this country, the police probably did about as well as they could be expected, although certainly given time and personnel they could have done more.” The judge also found- that appellant had suffered no prejudice in the advancement of his defense in consequence of the delay. Since these findings must stand unless clearly erroneous,
we look now to see whether they were adequately sustained by the evidence.
In support of the allegations of police inefficiency,
appellant testified that he was continuously available for arrest throughout the ten-month prearrest pe
riod; more particularly, that for a while he was on probation for another offense and was reporting monthly to his probation officer, and after the expiration of probation was employed by a local business known to the probation officer.
Had the police been more adroit, appellant asserts, routine investigation of readily available records would have led them directly to him for a much more timely arrest.
In response, Sergeant Wesley testified that the police did expend' considerable energy in unsuccessful attempts to locate appellant. They disseminated a local lookout via police teletype and put a “stop” on his criminal record;
they inquired of postal authorities for a forwarding address from his wife’s apartment;
and they checked tax, criminal and traffic records in efforts to ascertain his whereabouts.
As late as August, when a recheck of traffic records supplied an address which turned out to be the home of his parents,
a visit there and a discussion with the parents failed to provide any lead as to where he was.
It was not until early October that Sergeant Wesley, upon a check with an employment office, was able to trace appellant’s place of work. When that was done, appellant was promptly arrested on his job.
The record is devoid of any indication that the delay in arresting appellant was the product of any deliberate effort by the police to gain an advantage.
In our view, the record also furnishes abundant evidentiary support for the trial judge’s finding that a reasonable endeavor was made to locate appellant.
Beyond that, and perhaps even more powerfully, the record sustains the judge’s additional finding that in any event appellant was not harmed by the delay.
Appellant resisted the charges on the ground that on the offense date he attended an evening class at a vocational high school conducted from 7:00 to 10:00 p. m. Since the offense occurred more than 30 blocks from the school,
took place at 6:40 or 6:45 p. m. and lasted approximately ten minutes, it is evident that the alibi was strong if indeed appellant was in class at 7:00 p. m. when it started. It was stipulated at trial that attendance records showed that appellant was in class that evening, but the exact time he reported in was not the subject of stipulation or proof. Appellant claims that he suffered prejudice from the prearrest delay because of the destruction of a sign-in sheet which assertedly would have assisted him in proving his point.
The sign-in sheet functioned as the original record of class attendance on the date in question.
As the name implies, students could sign it at any time while in class that evening.
The sign-in sheet was discarded when the attendance information it contained was transferred to the students’ permanent records; had that sheet been available at trial, appellant argues, it might have shown his signature at or close to the top, and thus might have kindled an inference that he was present when class began at 7:00 p. m. and therefore could hardly have committed a robbery minutes earlier at a distant location.
This argument did not impress the trial judge on the question of prearrest delay or the jury on the issue of guilt or innocence, and we think harm from destruction of the sign-in sheet is dubious. Even if the sheet could have been produced, no means existed to verify that the order in which the names appeared on the list corresponded with the order in which students actually reported for class.
Consequently, it was impossible to correlate the position of any signature with the precise time of the signer’s arrival. There was, moreover, a complete absence of any indication as to when the sign-in sheet was discarded.
From aught that appeared, it could have been destroyed long before the prearrest delay reached proportions which would raise a question of due process.
By the same token, there was nothing to show a nexus between the delay and the unavailability of the sheet.
We conclude that appellant’s contention that prearrest delay wrought a deprivation of due process cannot prevail. “To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.”
That judgment, of course, must be sustained on appeal unless demonstrably wrong.
In this case, the trial judge heard witnesses on both sides of the issue and
concluded that a due process violation had ■ not been shown. Our painstaking review of the record discloses no basis for upsetting that conclusion.
IV
We turn now to the nine-month period extending from appellant’s indictment to his trial in order to ascertain whether his Sixth Amendment right to a speedy trial was impinged. Our determination in this regard is greatly facilitated by the Supreme Court’s very recent decision in Barker v. Wingo,
which delineates for the first time the criteria by which claims under the Speedy Trial Clause are to be assessed.
Barker
mandates “a balancing test, in which the conduct of both the prosecution and the defendant are weighed,”
and identifies four factors of prime importance: “[Ijength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”
Neither of these factors, the Court admonished, is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.”
We find that appellant’s speedy trial claim does not survive measurement by
Barker
standards.
The length of postindictment delay here was nine months. To be sure, in ordinary cases a delay of that duration is disquieting.
During the first two months of the period here, however, appellant was still at large and the police were doing their best to locate him; the trial judge so found, and we have found ample support for the finding.
The focus of our attention thus shifts to the remaining seven months elapsing between appellant’s arrest and his trial.
The record before us adds but scantily to the well known overburden in the District Court as the reasons for this part of the delay.
Of more importance, in our judgment, is the fact that appellant did not press his speedy trial right until five months after he was arrested.
In
Barker,
the Court “emphasize [d] that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”
Equally significant, we think, is the fact that, as the trial judge found, appellant sustained no prejudice to his defense which could be attributed to delay at the post-arrest stage of the prosecution.
By our appraisal, the balance of circumstances decidedly favors the Government, and appellant’s speedy trial argument must be rejected.
V
Appellant’s last point is that the trial judge erred in permitting Shelton and Barnes to identify him in the courtroom as one of the two robbers, and in allowing the Government to show the pretrial photographic identifications that each made of appellant. The circumstances pertinent to this contention may be briefly recounted. Shortly after the robbery, Shelton was shown numerous police photographs, and from them he identified both of the robbers. About a week later, when he went into appellant’s wife’s apartment to inspect the
fire damage, he saw the photograph and the snapshot of appellant. He took both, turned the photograph over to the police, and kept the snapshot for some investigating on his own.
Sergeant Wesley-testified that thereafter Shelton made still another identification of appellant from police albums.
Barnes testified that in mid-May he picked out appellant from a group of six black and white pictures.
The thrust of appellant’s argument is that Shelton’s entry into the apartment and appropriation of the photograph and snapshot amounted to an illegal search and seizure, and that these items and the in-court identifications should accordingly have been suppressed. The Government counters with the argument that the Fourth Amendment, as a restraint only on governmental action,
did not invalidate Shelton’s undertakings as a private citizen.
We need not explore the question whether, in the circumstances here — particularly the use which at trial the Government made of Shelton’s discoveries — his exploits are to be equated with those of persons acting under color of federal authority.
Shelton entered the fire-gutted apartment of appellant’s wife in his capacity as resident manager of the apartment complex to ascertain the extent of the damage to property under his supervision. While in the pursuit of his duties, Shelton happened to come across the photograph and snapshot. The trial judge ruled that Shelton was lawfully in the apartment for that purpose — and nothing in the record refutes the correctness of that ruling.
The case thus boils down to the discovery of evidence by one who then was where he had a perfect right to be, a situation in no way implicating the Fourth Amendment.
In terms of Fifth and Sixth Amendment considerations relevant to pretrial identifications, we see no meaningful difference between this case and a chance face-to-face encounter be
tween the victim of a crime and the party he identifies as the criminal.
In sum, we perceive no encroachment upon appellant’s rights in consequence of these events.
The judgment of appellant’s conviction is accordingly
Affirmed.