933 F.2d 1017
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff/Appellee,
Carl NELSON, Defendant/Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted May 13, 1991.*
Decided May 21, 1991.
Before FARRIS, BOOCHEVER and FERNANDEZ, Circuit Judges.
Carl Nelson appeals his conviction following his guilty plea for firearm possession by a felon in violation of 18 U.S.C. Sec. 922(g)(1). He argues that the district court erred in denying his motion to dismiss the indictment on the grounds that the preindictment delay violated (1) the Interstate Agreement on Detainers Act and (2) his fifth amendment right to due process. We affirm the district court's holding that Nelson's due process rights were not violated by the preindictment delay and remand for a specific finding on the issue of whether Nelson sent a request for a speedy trial to prison officials at the Vacaville state prison.
I. Interstate Agreement on Detainers Act
Under the IADA, the official having custody of the prisoner is required to inform the prisoner of any detainer and of the right to make a request for a speedy resolution of the charges. 18 U.S.C. app. Sec. 2, art. III(c). If the prisoner then makes a written request for a speedy trial to the custodial prison official, the prosecuting jurisdiction must bring the prisoner to trial within 180 days. Id. at arts. III, V(c). If the act is violated, the charges must be dismissed with prejudice unless good cause can be shown. Brown v. Wolff, 706 F.2d 902, 905 (9th Cir.1983). The prisoner bears the burden of showing that a request for a speedy trial was made. United States v. Reed, 910 F.2d 621, 624 (9th Cir.1990). However, where a prisoner does all he can to fulfill the request requirement but falls short of fulfilling it because of misinformation provided by prison officials or other official neglect, this burden may still be met. Id. at 625.
The district court's basis for holding that Nelson did not meet this standard is unclear. Because the question is crucial to the propriety of the district court's holding, we remand with instructions that the district court make a specific finding as to whether Nelson communicated a written request for a speedy trial to the officials at the Vacaville facility.
II. Due Process
Nelson argues that the preindictment delay violated his fifth amendment right to due process. To establish this claim, Nelson must first demonstrate that he suffered actual prejudice as a result of the government's delay. United States v. Moran, 759 F.2d 777, 782 (9th Cir.1985), cert. denied, 474 U.S. 1102 (1986). If prejudice is established, we must balance the reasons for the delay against the length of the delay to determine whether the delay offends fundamental conceptions of justice. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1050 (9th Cir.1990).
Nelson rests his claim of actual prejudice on the fact that (1) he lost the opportunity to serve his federal sentence concurrently with the time already served on his state sentence and (2) he suffered the psychological burden of not knowing whether he would be prosecuted during the time of the delay. The psychological burden Nelson alleges is too speculative to establish actual prejudice. United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir.1986). In United States v. Pedrioli, No. 90-10008, slip op. 5025 (9th Cir. April 22, 1991), we held that a sentencing court's discretionary imposition of a consecutive sentence in contravention of U.S.S.G. Sec. 5G1.3 (Oct.1987) must meet the procedural and substantive requirements for a departure from the guidelines. However, we need not decide whether Pedrioli alters the rule of Valentine, 783 F.2d at 1417, and United States v. Sherlock, 865 F.2d 1069, 1074 (9th Cir.1989), that the lost possibility of serving a federal sentence concurrently is insufficient to show actual prejudice. Even assuming that Nelson could establish prejudice, his claim fails under the balancing test.
Nelson was indicted on the federal charge approximately four months after he was sentenced on the state charge and approximately nine months after the federal complaint and detainer were filed. There is no evidence that the government was seeking to disadvantage Nelson's defense through preindictment delay or was reckless in its failure to indict Nelson sooner. We have not determined whether negligence on the part of the government can ever give rise to a due process violation, see Moran, 759 F.2d at 782 (suggesting in dicta that negligence may be enough if delay is lengthy), but hold that it can not when the delay is as brief as that present here.
AFFIRMED IN PART AND REMANDED.