Appeal from the United States District Court for the Central District of California. D.C. No. CR-88-00563-DT(B). Dickran M. Tevrizian, District Judge, Presiding.
Before: J. Clifford Wallace, Chief Judge, Procter Hug, Jr. and Michael Daly Hawkins, Circuit Judges. Opinion by Chief Judge Wallace.
Manning appeals from his conviction following a jury trial and life sentence for murder by mail bomb, in violation of 18 U.S.C. §§ 1716(a) and 2. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm the conviction and life sentence, but remand for the court to correct Manning's parole eligibility.
On July 14, 1980, a cardboard box was mailed to the office of Ms. Brenda Crouthamel, now Mrs. Brenda Adams (Adams), at Prowest Computer Corporation. The box contained a packing slip with a letter dated July 11, 1980. The letter began "Dear Friend" and advised the reader that the box contained a "new invention" that would "open a new age in computer sales and advertising." The letter went on to say that the device in the box had a "prerecorded tape" that would describe the invention's "many functions" and that the reader should just "plug it in" to hear the tape.
The package was delivered on July 17, but Adams did not plug in the device, as she was on her way out of the office to look for a new car. Unfortunately, Adams's secretary, Patricia Wilkerson, opened the package, and upon reading the letter plugged the device into an outlet. The device exploded into hundreds of pieces of shrapnel, killing Wilkerson instantly. The office was destroyed, but the cardboard box and letter survived, having been placed behind an office desk that shielded them from the blast.
The box and letter were analyzed, and latent prints were discovered. A print on the box was mistakenly characterized as a partial palmprint, but was later discovered to be a fingerprint. Fingerprints were also discovered on the letter. The print on the box matched that of Manning, while the prints on the letter matched those of Manning's wife. Manning was already a suspect, because investigators believed that William Ross arranged for the killing of Adams over a business deal gone sour and that Ross had contacted Manning to carry out the killing. Telephone records linked Ross to Manning, and the markings on the cardboard box allowed investigators to trace the box to a wholesaler, and in turn to a company that had purchased the boxes. Manning had worked briefly at that company, and the packing slip found with the box was the same type used by the company that had purchased the boxes.
In July 1988, Manning and his wife were indicted on a one-count mail bomb charge, in violation of 18 U.S.C. §§ 1716(a) and 2. Manning's wife was then living in the United States. She subsequently left the United States, following a mistrial, and joined her husband in the West Bank of Israel. They were both arrested in March 1991. In July 1993, Manning was finally extradited to the United States to stand trial. Manning was arraigned on a superseding indictment on August 26, 1993, and on October 14, 1993, he was convicted. On February 7, 1994, he was sentenced by the district court to life imprisonment. He was not to become eligible for parole for 30 years.
Manning's first argument is that the seven year pre-indictment delay and 30 month post-indictment delay requires that the charges against him be dismissed. We review for abuse of discretion the denial of a motion to dismiss for impermissible pre-indictment delay. United States v. Butz, 982 F.2d 1378, 1380 (9th Cir.) (Butz), cert. denied, 126 L. Ed. 2d 203, 114 S. Ct. 250 (1993). Post-indictment Sixth Amendment speedy trial claims are reviewed de novo. United States v. Sandoval, 990 F.2d 481, 482 & n.2 (9th Cir.) (Sandoval), cert. denied, 126 L. Ed. 2d 174, 114 S. Ct. 218 (1993).
The pre-indictment delay in this case was caused by an error on the part of the investigators. Apparently, a print had been found on the bomb box, but it was thought that the print was a palmprint when, in actuality, it was a partial thumbprint. The discovery of the error led to a match between the print and Manning, albeit years after the bombing.
Protection from improper pre-indictment delay is based upon the Due Process Clause. United States v. Krasn, 614 F.2d 1229, 1235 (9th Cir. 1980). We consider in determining whether pre-indictment delay may bar prosecution (1) the actual prejudice to the defendant, (2) the length of the delay, and (3) the reason for the delay. Id.
The most important element is whether the defendant has demonstrated that he has suffered actual, nonspeculative prejudice as a result of the delay. Id. In our analysis, "we determine first whether a defendant suffers actual prejudice" and if so "we balance the length of the delay with the reasons for it" to determine if a due process violation occurred. Butz, 982 F.2d at 1380. Proof of prejudice must "be definite and not speculative. Courts apply the actual prejudice test stringently." Id. (citations omitted). The burden on Manning to prove actual prejudice is a heavy one. United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir. 1989), cert. denied, 113 S. Ct. 419 (1992). If Manning fails to demonstrate actual prejudice, our inquiry ends. Butz, 982 F.2d at 1380.
Manning's assertion of prejudice is too speculative. Manning states that he lost access to his credit card records, which could have explained his location at the time of the killing. He also contends his memory was not as keen after the delay. He further argues that a potential "key witness" for his defense had died. This is not enough. Manning has not specifically stated what the credit card records would show, or made any showing regarding what the deceased witness would have said. Manning's argument embraces pure conjecture. Generalized assertions of the loss of memory, witnesses, or evidence are insufficient to establish actual prejudice. See id. Our inquiry is therefore at an end. The district court did not abuse its discretion by denying a dismissal on the basis of pre-indictment delay.
We now turn to Manning's contention that the 30 month delay between his indictment and the government's formal request for his extradition from Israel violated his Sixth Amendment right to a speedy trial. Our analysis begins by determining whether the length of the delay between the indictment and the trial so exceeds the range of ordinary delay as to foreclose the Conclusion that the case was prosecuted with customary promptness and to raise a presumption that the delay may have been prejudicial. United States v. Doggett, 505 U.S. 647, 112 S. Ct. 2686, 2690-91, 120 L. Ed. 2d 520 (1992) (Doggett). Because the Sixth Amendment right to a speedy trial does not attach until the defendant has been arrested or indicted, United States v. MacDonald, 456 U.S. 1, 7, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1981), the length of the pre-indictment delay in this case is irrelevant to the issue of whether Manning has been deprived of his Sixth Amendment right to a speedy trial. See United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992). The only delay relevant to the question of whether Manning was deprived of his Sixth Amendment right to a speedy trial is the 30 month delay between Manning's indictment and the government's formal extradition request. For purposes of this analysis, we assume, without deciding, that 30 months is long enough to warrant inquiry into the delay.
To determine whether post-indictment delay has violated a defendant's speedy trial rights under the Sixth Amendment, we usually consider the "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Doggett, 112 S. Ct. at 2690, quoting Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). Whether Manning "must show actual prejudice depends on whether it is he or the government who is responsible for the delay." United States v. Aguirre, 994 F.2d 1454, 1456 (9th Cir.) (Aguirre), cert. denied, 126 L. Ed. 2d 603, 114 S. Ct. 645 (1993).
Because the district court's finding that the government did not negligently cause the post-indictment delay was not clearly erroneous, Manning would be required to demonstrate actual prejudice to establish a violation of his Sixth Amendment right to a speedy trial. Id. We need not engage in this analysis, however, because Manning has waived his constitutional right to a speedy trial.
If the delay can be attributed to Manning himself, he will be deemed to have waived his speedy trial rights entirely. Sandoval, 990 F.2d at 483; see also Aguirre, 994 F.2d at 1457 n.5 (distinguishing cases in which a defendant merely fails to assert his speedy trial rights from cases in which a defendant himself intentionally causes the delay). The district court expressly found that Manning knew of the indictment against him and that he "resisted all efforts to bring him to the United States." These determinations are sufficient to support the finding that Manning waived his speedy trial rights. See Sandoval, 990 F.2d at 483 (that defendant "purposely absented himself from the proceedings" is sufficient to establish waiver). Manning cannot avoid a speedy trial by forcing the government to run the gauntlet of obtaining formal extradition and then complain about the delay that he has caused by refusing to return voluntarily to the United States. Manning could have avoided any post-indictment delay by returning to the ...