Before: BORK and STARR, Circuit Judges ; RE,* Chief Judge, United States Court of International Trade
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
Philbert A. Pierre, following a jury trial in the United States District Court for the District of Columbia, was convicted of the unlawful distribution of phenycyclidine and marijuana within 1000 feet of a school, in violation of 21 U.S.C. § 845a (Supp. II 1984). He was sentenced to concurrent terms of 1 to 3 years in prison on each count of the two-count indictment, to be followed by 6- and 4- year mandatory parole terms.
Pierre appeals contending that the district judge erred in denying his motion to dismiss the indictment on the ground that there had been an unjustified and prejudicial delay in charging him. Since we hold that under the circumstances presented, the delay was reasonable, the ruling of the District Court in denying the motion to dismiss is sustained, and the judgment of conviction is affirmed.
Pierre's conviction was the result of an undercover operation undertaken by the District of Columbia Metropolitan Police Department during the fall of 1985 and the spring of 1986 at Anacostia Senior High School. On May 9, 1986, Pierre was arrested when he was positively identified by the undercover officer as the person from whom she had purchased drugs on February 14, 1986.
Pierre contends that since "almost 90 days" elapsed between the date of the sale of narcotics and his arrest, the government breached its duty to act diligently to arrest the accused as soon as possible after the undercover agent "surfaced" or the investigation was terminated. Pierre asserts that the delay in his arrest hampered his ability to prepare a defense because he was unable to obtain possible witnesses who had begun their summer recess from school at the time of his arrest. He also states that "he had no reason to remember his whereabouts on a day several months prior to his arrest."
It is well-established that "[l]aw enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause . . . ." Hoffa v. United States, 385 U.S. 293, 310 (1966). The question presented, therefore, is whether, in this case, the delay between the time of the sale of the narcotics and the time of arrest constituted an impermissible or unconstitutional delay.
In determining whether there has been a prejudicial delay in the arrest of a defendant, within the context of ongoing undercover police investigations, the overriding question of importance is whether the delay prejudiced the defendant to the extent that the defendant's ability to present a defense has been unconstitutionally impaired. See United States v. Lovasco, 431 U.S. 783, 784-85 (1976); see also Ross v. United States, 349 F.2d 210,211 (D.C. Cir. 1965).
In the Lovasco case, 431 U.S. 783 (1976), the defendant was indicted, more than 12 months after the alleged incidents, for possessing eight firearms stolen from the United States mails, and for dealing in firearms without a license. The government explained the months of inaction by stating that further investigation was needed on related matters and persons connected with the crime. Id. at 787, 796.
The Supreme Court held "that to prosecute a defendant following investigation delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." Id. at 796. The court noted that "investigative delay is fundamentally unlike delay undertaken by the Government solely 'to gain tactical advantage over the accused.'" Id. at 783 (citation omitted). It also stated that, even where proof of actual prejudice is present, it only "makes a due process claim concrete and ripe for adjudication, [and does] not . . . mak[e] the claim automatically valid." Id. at 789. The court concluded that, in light of the government's explanation, "it follows that compelling respondent to stand trial would not be fundamentally unfair." Id. at 796.
As the Supreme Court explained in United States v. $8,850, 461 U.S. 555 (1983), due process challenges as a result of delay in instituting criminal proceedings "can prevail only upon a showing that the Government delayed seeking an indictment in a deliberate attempt to gain an unfair tactical advantage over the defendant or in reckless disregard of its probable prejudicial impact upon the defendant's ability to defend against the charges." Id. at 563 (citing United States v. Lovasco, 431 U.S. 783 (1977)).
Although the Lovasco case might be distinguished since in concerns a "preindictment delay," the reasoning of the case is equally applicable here. Adhering to the standard of prejudice set forth by the Supreme Court, it is clear that in this case, the defendant's claim of prejudicial delay must be disallowed. Nothing in the record indicates that the delay in instituting criminal proceedings was "a deliberate attempt to gain an unfair tactical advantage," or was "in reckless disregard of its probable prejudicial impact." Pierre's claim of prejudice cannot be supported "by the mere assertion that the accused cannot remember his whereabouts on the day of the offense or by the 'slender ...