Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 90-4554
JOSEPH AVERY ROBINSON,
Petitioner-Appellant,
VERSUS
JOHN P. WHITLEY, WARDEN,
Louisiana State Penitentiary,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(September 10, 1993)
Before DAVIS and DeMOSS, Circuit Judges, and ZAGEL1, District
Judge.
DeMOSS, Circuit Judge:
On April 23, 1984, a jury in Lafayette Parish, Louisiana,
convicted Joseph Avery Robinson of aggravated rape. The trial
judge sentenced Robinson to life in prison at hard labor, without
benefit of parole, probation, or suspension of sentence. The
Louisiana court of appeals for the third circuit affirmed his
conviction on direct appeal, State v. Robinson, 480 So. 2d 329 (La.
1District Judge of the Northern District of Illinois, sitting
by designation.

App. 3rd Cir. 1985), and the Louisiana supreme court denied writ
without comment. State v. Robinson, 498 So.2d 13 (La. 1986).
Robinson chose not to collaterally attack his conviction
through the state system, but instead sought federal habeas corpus
relief. Based on a magistrate's report, the district court denied
relief, and we affirm.
BACKGROUND
In the early morning hours of September 30, 1980, between 4:30
and 5:00 a.m., Mr. Jackie Wallace was returning from work when he
surprised a burglar in his home in Opelousas, Louisiana. Mr.
Wallace chased the burglar across his front lawn and to the man's
car. The burglar jumped into a blue Chevrolet, locked the doors
and sped away. Mr. Wallace managed to record the license plate
number of the car.
Inside, Mr. Wallace discovered his wife's pocket book on the
kitchen table and the contents scattered about. As the Wallaces
began to make an accounting of their belongings, they discovered
that the only item missing was a pair of Mrs. Wallace's pantyhose,
which she had left lying on the living room couch.
Wallace described the intruder as a black male, wearing a dark
shirt and blue bandanna. The Wallaces' dog discovered in their
yard a bundle of money amounting to $36. The bills were lying next
to a bush, about four feet from where the intruder had exited the
Wallaces' home. Mr. Wallace recalled that in the process of
fleeing the house, the burglar was digging around in his pocket,
apparently searching for his car keys.
2

In the meantime, Robinson accidentally drove his car into a
ditch in front of the home of Mrs. Lutha Breaux. Mrs. Breaux
testified that around 5:45 on the morning of September 30, Robinson
came to her front door and asked for help in getting his car out of
the ditch. Because her husband owned a small car, they were unable
to render assistance. However, Mr. Roland Guidry, a neighbor of
the Breauxs, pulled the car from the ditch at precisely 7 o'clock
that morning.
Less than half a mile away, Mrs. Charlene Hoffpauir and her
four-year-old son were alone in their trailer. Around 7:30 that
morning, Mrs. Hoffpauir was in the process of dressing for work
when her son came in and told her that a man wearing a mask was
peering into a window of their home. A few moments later, Mrs.
Hoffpauir heard the door to her trailer come ajar. As she walked
towards the door, a man wearing a pantyhose mask and wielding a
large knife confronted her.
The man threatened her with the knife and forced her into the
bedroom of the trailer. He forced her to the floor, pulled her
hands behind her back, and tied her wrists with pantyhose. Using
her gown as a gag, he raped her in front of her child.
When he had finished, the man got up and walked around the
trailer, briefly removing his mask. Mrs. Hoffpauir managed to get
a partial look at her attacker's face. She also heard him
rummaging through her jewelry box. When all became quiet, she
arose, found her son, and went to the front door of her trailer and
screamed for help. A few moments later, her sister-in-law, who
3

lived nearby, ran to the trailer and cut the pantyhose from her
wrists.
When the authorities arrived, Mrs. Hoffpauir described her
attacker as a light skinned black male, about 5'5" tall, with a
slim build, weighing approximately 110 to 120 pounds. She said he
had a mustache, sideburns and possibly a beard. She said he was
wearing light-colored jean pants and a dark checkered shirt.
The detectives at the scene discovered footprint impressions
near the window through which the child had observed the man
peering. A crime scene technician made plaster casts of the
impressions.
Meanwhile, the Opelousas police department continued their
investigation of the Wallace burglary. Using the license plate
number provided from Mr. Wallace, they discovered that the car was
registered to Robinson. Armed with this information, the police
obtained a warrant for Robinson's arrest.
The police arrived at Robinson's sister's house around 10:30
that morning. They discovered Robinson's blue Chevrolet bearing
the license number Wallace had provided. When Robinson exited the
house, the police placed him under arrest and advised him of his
rights.
Robinson matched both Mrs. Hoffpauir's and Mr. Wallace's
descriptions. He was wearing a dark-colored plaid shirt and light-
colored jean pants, and he was barefoot. Robinson explained that
his tennis shoes had become full of mud and were in the washing
machine. Robinson's brother-in-law retrieved Robinson's shoes from
4

the washing machine and gave them to the police. The police
discovered a blue bandanna in Robinson's car. Robinson also
complained of losing $36.
On October 7, 1980, Robinson was charged with the aggravated
rape of Charlene Hoffpauir. Ten days later, he escaped from police
custody and fled to Houston, Texas. Once there, Robinson assumed
the name of Cedric Shelton and committed several crimes for which
he was arrested. Thereafter, Robinson was released from custody in
Texas and returned to Louisiana on August 4, 1982. He was indicted
for the aggravated rape of Mrs. Hoffpauir on August 31, 1982. His
case went to trial on April 10, 1984.
At trial, Hoffpauir identified Robinson as her rapist. She
also identified the shirt taken from Robinson upon his arrest as
the shirt worn by her rapist. The prosecution further established
that Robinson burglarized the Wallace's house, stealing only a pair
of pantyhose. It also proved that the hose stolen in the burglary
were the same ones used to secure Mrs. Hoffpauir's wrists during
her rape. The prosecution also proved that the plaster casts taken
from the footprint impressions outside of the trailer matched
perfectly with the tread and wear patterns of Robinson's shoes.
The evidence further placed Robinson less than a half of a mile
from Mrs. Hoffpauir's trailer only thirty minutes before the rape.
Finally, the prosecution decimated Robinson's alleged "alibi."
Robinson's petition for federal habeas corpus relief alleges
no less than twelve violations of his constitutional rights. Of
the twelve, only two merit our discussion here. Robinson claims
5

that the trial court denied him due process of law by erroneously
admitting evidence of the Wallace burglary in the trial of the
Hoffpauir rape. He also claims that the state violated his Sixth
Amendment right to a speedy trial. We address these claims in
turn.
Other Crimes Evidence
Robinson predicates his due process claim on an evidentiary
ruling by the trial court. Preliminarily, Robinson must show the
ruling to have been error under Louisiana state law. This he
cannot do.
Louisiana law generally prohibits the admission of "other
crimes" evidence, that is, evidence of criminal conduct uncharged
in the subject indictment. State v. Prieur, 277 So. 2d 126, 128
(La. 1973). However, it has also recognized exceptions to this
general rule. One such exception permits evidence of other crimes
to be admitted when it is probative of a defendant's identity. See
State v. Davis, 389 So. 2d 71, 72-73 (La. 1980). In other words,
when the offense charged involves a system, such evidence is
admissible to prove the continuity of offense. Another exception
permits the admission of such evidence when it forms part of the
res gestae of the charged offense. Prieur, 277 So. 2d at 128.
Contrary to allegations contained in Robinson's brief, a
careful review of the record reveals that the state sought to have
evidence concerning the Wallace burglary admitted under both the
system and res gestae exceptions. And in further contrast with
6

Robinson's characterizations, the record shows that the trial court
admitted the "other crimes" evidence on both of these grounds.
Because we find the burglary evidence to be clearly admissible
as res gestae evidence, we express no opinion as to its
admissibility under the other exception. At the time Robinson's
trial, La. R.S. 15:447 provided in relevant part:
Res gestae are events speaking for themselves under the
immediate pressure of the occurrence, through the
instructive, impulsive and spontaneous words and acts of
the participants. . . . What forms any part of the res
gestae is always admissible in evidence.
La. R.S. 15:448 also provided:
To constitute res gestae the circumstances and
declarations must be necessary incidents of the criminal
act, or immediate concomitants of it, or form in
conjunction with it one continuous action.
In State v. Haarala, 398 So. 2d 1093, 1097 (La. 1981) the
Louisiana supreme court provided insight into the admission of res
gestae evidence.
The general prohibition against the use of other crimes
evidence does not bar admission of criminal acts which
are an inseparable part of the whole deed. [citation
omitted] In Louisiana, such acts are denominated as part
of the res gestae and admitted under the authority of La.
R.S. 15:447-448. A very close connexity between the
charged offense and the other crimes evidence sought to
be introduced under the res gestae exception is required.
[citation omitted] . . . This Court has approved the
admission of other crimes evidence when it is related and
intertwined with the charged offense to such an extent
that the state could not have accurately presented its
case without reference to it. [citations omitted] In
such cases the purpose served by admission of other
crimes evidence is not to depict the defendant as a bad
man, but rather to complete the story of the crime on
trial by proving its immediate context of happenings near
in time and place. [citation omitted]
Id.
7

In State v. Edwards, 406 So. 2d 1331, 1350-51 (La. 1981), the
court provided further insight into the application of this
exception. The court laid out the facts relevant to its discussion
of this issue as follows:
Edwards and Kent had arrived at Sheppard's house,
defendant suggesting `let's go make a hit . . . over
there at this lady's house . . .' The plan got off to a
ragged start. The trio went first to a grocery store
where defendant stole some wine. The three then went
looking for a car so that they could go to the lady's
house and steal her car. Two attempts at theft failed
and the trio returned to Kent's house. Ultimately, the
group made its way to the victim's residence on foot.
After [stabbing the 78 year-old victim to death in her
home], the three sped away from the scene with defendant
at the wheel of the victim's car. As the robbery
coincident with the murder had netted only a few `odd
bitty coins in a box,' defendant suggested another
`hustle.' Defendant, still driving the victim's car,
followed another woman to LSU campus where he instructed
Sheppard to snatch her purse. The potential victim saw
Sheppard coming and he abandoned the plan. Still looking
for another `hustle,' defendant eventually parked across
the street from the 7-11 where [the police's] appearance
terminated the night's activities.
Id. After recognizing the general prohibition to the admission of
other crime evidence and the res gestae exception, the court
continued:
The murder of Mrs. Todd did not occur in a vacuum. As
Michael Sheppard related, defendant suggested the
criminal activity which culminated with the death of the
victim. The theft of the victim's car can hardly be said
to be unrelated to her death. Using the victim's car,
defendant and his cohorts continued their night of
criminal activity. The sequence of events did indeed
form `one continuous transaction' with the crime for
which defendant was being tried [i.e. first degree
murder] and therefore were properly admitted under the
res gestae exception to the prohibition against the
introduction of other crimes evidence. As this court
remarked in State v. Curry, 325 So. 2d 598 at 602 (La.
1976), '[w]ithout [such] evidence, the complete story of
the crime [could] not be told.'
Id.
8

Adhering to the direction provided by these cases, we reach
the following conclusions: First, it can hardly be said that the
burglary of the Wallace house was unrelated to the rape of Mrs.
Hoffpauir. The evidence established that the pair of hose stolen
in the burglary formed the instrumentality of the rape. The
evidence from the burglary was necessary to prove that it was
Robinson who stole the pair of hose and used it in the rape.
Furthermore, the sequence of events relating to the burglary
and its aftermath formed "one continuous transaction" with the
crime of rape. For this, we rely upon the closeness in time and
location between the burglary and the rape. The credible evidence
revealed that the rape occurred only two and a half to three hours
after the burglary. Furthermore, the Wallace home is only about
thirteen miles from Mrs. Hoffpauir's trailer. Moreover, evidence
unearthed in the investigation of Robinson's alibi vis � vis the
burglary placed Robinson within a half mile or less of Mrs.
Hoffpauir's trailer, thirty minutes before her rape.
Thus, we find that the state did not introduce the evidence of
the burglary to prove Robinson's criminal propensities or that he
is a bad man. Rather, the evidence had independent relevance as an
integral part of the crime for which he was tried and convicted.
We therefore conclude that the evidence was properly admitted as
part of the res gestae. See State v. Guillory, 9 So. 2d 450 (La.
1942).
Since we have determined that no error occurred in the
admission of this evidence, Robinson has no basis for any alleged
9

due process violation. See Banks v. McGougan, 717 F.2d 186, 190
(5th Cir. 1983). Thus, we do not reach the second level of habeas
inquiry.
Right to Speedy Trial
Determining whether a defendant's Sixth Amendment right to a
speedy trial has been violated requires a careful balancing of the
four factors enunciated by the Supreme Court in Barker v. Wingo,
407 U.S. 514 (1972). The factors are: (1) the length of the delay,
(2) the reason for the delay, (3) the assertion of the right, and
(4) the prejudice to the defendant. In balancing these factors,
the district court made several findings, ultimately concluding no
violation to have occurred. We find the court's overall evaluation
not to have been clearly erroneous. Davis v. Puckett, 857 F.2d
1035, 1041 (5th Cir. 1988).
(1) Length of Delay
This first factor serves as a "triggering mechanism." Barker,
407 U.S. at 530. If the length of delay reaches a threshold level
regarded as "presumptively prejudicial," the court must make
findings regarding the remaining three factors and balance all
accordingly. Id. The relevant period of delay is that following
accusation, either arrest or indictment, whichever occurs first.
Dillingham v. United States, 423 U.S. 64 (1975). In this case,
Robinson was arrested for the rape on October 7, 1980, and his
trial began on April 12, 1984. The district court correctly found
this delay of approximately forty-two and a half months to require
examination of the remaining factors. This circuit generally
10

requires a delay of one year to trigger speedy trial analysis.
Nelson v. Hargett, 989 F.2d 847, 851 (5th Cir. 1993).
The balancing of factors required by Barker emphasizes that
the delay itself is merely presumptive and does not warrant an
immediate conclusion that the defendant has been denied his Sixth
Amendment right to a speedy trial. United States v. Carter, 603
F.2d 1204, 1207 (5th Cir. 1979). His conduct must be weighed
against that of the government. Id.
(2) Reasons for the Delay
The district court found that the approximate twenty-three-
month delay between Robinson's arrest and indictment was
attributable to Robinson's escape from Louisiana and incarceration
in Texas. It also found that the approximate nineteen-month delay
between Robinson's indictment and trial was attributable to
Robinson's repeated requests for continuances. Thus the court
placed responsibility for the entire period of delay on Robinson.
With some slight modification, we find the court's allocation of
responsibility to be correct.
Our review of the record reveals that the state should bear
some responsibility for the pre-indictment delay in Robinson's
prosecution. Robinson escaped from Louisiana on October 17, 1980
and fled to Houston, Texas. There he assumed the name of Cedric
Shelton. As Cedric Shelton, he engaged in a course of criminal
conduct that ultimately landed him in Huntsville. He was
incarcerated under his assumed name.
11

It was not until Louisiana authorities received a letter dated
June 17, 1981 from the Staff Counsel for Inmates at Huntsville that
they became aware of Robinson's incarceration in Texas. The Chief
of Detectives from Lafayette Parish responded by letter dated June
22, 1981, that Robinson had charges for aggravated rape and robbery
pending against him in that parish and that the case would proceed
upon his return.

Given that Louisiana learned of Robinson's incarceration on
June 17, 1981, there was an approximate seven-month delay before
the state acted by placing a detainer on him on January 26, 1982.
The Texas Department of Corrections released Robinson on August 4,
1982 due to the so-called overcrowded conditions of its facilities.
He was immediately extradited to Louisiana and was indicted on
August 31, 1982, for the rape charges. Thus, between June 17, 1981
and August 31, 1982, there was a fourteen-and-a-half-month delay
during which the state was aware of Robinson's incarceration in
Texas and failed to take steps to secure him for prosecution.
The Supreme Court has stated that a defendant does not lose
his constitutional rights because he is incarcerated under a
lawfully imposed sentence outside the jurisdiction seeking to
prosecute him. Smith v. Hooey, 393 U.S. 374 (1969). Upon the
accused's demand, the state seeking prosecution has a
"constitutional duty to make a diligent, good-faith effort" to
bring defendants incarcerated in other jurisdictions to trial. Id.
at 383.
12

Robinson complains that the state "neglected" to discharge its
constitutional duty to secure him for trial. He does not, however,
charge the state with a deliberate attempt to delay the trial.
Indeed, the record would not support such a charge. If
established, a deliberate delay by the state would weigh heavily
against it under our analysis. Barker, 407 U.S. at 531. In any
event, we view the state's failure to act during the pre-indictment
period as simple negligence on its part. And as the Supreme Court
has instructed, a "neutral reason" such as negligence weighs less
heavily against the state. Id.2
In all other respects, however, we agree with the district
court's evaluation of this factor. The record reveals that
Robinson was responsible for more than one-third (from October 7,
1980, until June 17, 1981) of the pre-indictment delay by virtue of
his escape and subsequent incarceration as Cedric Shelton. It
further indicates that Robinson was responsible for the approximate
nineteen-and-a-half month period of post-indictment delay.
Robinson repeatedly requested and was granted continuances of
trial. This court said in Nelson that a defendant "will not be
heard to complain of a lapse of time attributable to continuances
he sought and received from the trial court." Nelson, 989 F.2d at
2Although we determine that the Louisiana authorities' failure
to act may have been negligent, in weighing their conduct, we are
mindful of the fact that it was Robinson's knowing and voluntary
escape and incarceration as Cedric Shelton that created the
circumstances which forseeably resulted in this fourteen month
delay.
13

852. In such a situation, "the speedy trial clock is properly
tolled." Id.
Thus, we wholeheartedly agree with the district court's
weighing of this factor against Robinson, who should properly bear
responsibility for the lion's share of delay.
(3) Assertion of the Right
The third factor places the burden on the defendant to alert
the government of his grievances. The assertion of the speedy
trial right "is entitled strong evidentiary weight" under the
Barker test. Barker, 407 U.S. at 532. The district court found
that "there [wa]s no question that Robinson repeatedly asserted his
rights" via several motions, a writ of mandamus, and a letter to
the Lafayette Parish judge. Although the district court did not
expressly say that it weighed this factor in Robinson's favor, to
the extent it did, we consider its evaluation clearly erroneous.
As this court noted in United States v. Palmer, 537 F.2d 1287,
1288 (5th Cir. 1976), cert. denied, 434 U.S. 1018 (1978), "the
point at which the defendant asserts his right is important because
it may reflect the seriousness of the personal prejudice he is
experiencing." In this case, defendant waited almost twelve months
after his arrest on October 7, 1980, before filing his first motion
for a speedy trial on August 25, 1981. In Palmer, this court
considered the defendant's silence during the twenty-two months
before his indictment as a factor weighing against him. Id. at
1288; see also United States v. Avalos, 541 F.2d 1100, 1115 (5th
Cir. 1976). While Robinson did not remain silent during the whole
14

of the pre-indictment period, he remained so for almost seventy
percent of that time.
Furthermore, the record reveals that Robinson asserted his
speedy trial right on eight separate occasions. Of these, five
took place after Robinson was indicted. And it was during this
post-indictment period that Robinson succeeded in having his trial
continued on four separate occasions.3 We consider these
continuances to be indicative of the degree of seriousness with
which Robinson asserted his right to a speedy trial.
Thus, simply because Robinson peppered the court with speedy
trial motions does not mean that he did so out of an honest desire
for a speedy trial. We consider Robinson's pre-indictment silence
and post-indictment continuances to outweigh whatever weight would
ordinarily be due his speedy trial assertions.
(4) Prejudice to the Defendant
The final Barker factor inquires into the degree of prejudice
suffered by a defendant due to the delay in prosecution. The
Supreme Court in Doggett v. United States, 112 S. Ct. 2686 (1992),
has modified its analysis under this factor. In Doggett, the Court
stated that "affirmative proof of particularized prejudice is not
essential to every speedy trial claim." Id. at 2692. It pointed
out that there are situations when "excessive delay presumptively
compromises the reliability of a trial in ways that neither party
3The district court found that Robinson requested and was
granted five continuances. We could find only four. Whether it is
four or five really does not matter. There were a sufficient
number from which we can conclude that Robinson was in no great
hurry to get to trial.
15

can prove, or for that matter, identify." Id. at 2693. The Court
in Doggett provided three hypotheticals to illustrate the role of
presumptive prejudice.
The Court described three situations in which a defendant
would have to show varying degrees of prejudice. Id. The
defendant's degree of proof in each situation varies inversely with
the government's degree of culpability for the delay. Id. Thus, in
the first case, where the government was reasonably diligent in its
efforts to bring the defendant to trial, the defendant must show
"specific prejudice to his defense." Id. This is so, according to
the Court, no matter how great the delay. Id. On the other hand,
if the defendant can show that the government intentionally held
back its prosecution in order to gain an impermissible tactical
advantage, then the defendant would "present an overwhelming case
for dismissal." Id.
"Official negligence" occupies the "middle ground," according
to the Court. Id. When the government's conduct is neither
diligent nor malicious but simply negligent, the court must perform
yet another balancing to determine the weight to be accorded such
negligence. See Id. This balancing requires the court to determine
what portion of the delay is attributable to the government's
negligence and whether this negligent delay is of such a duration
that prejudice to the defendant should be presumed. Id. The weight
given to the government's negligence varies directly with its
protractedness and its consequent threat to the fairness of the
accused's trial. Id.
16

Here, the district court correctly required Robinson to
demonstrate prejudice. We have found that the government's
negligence is, at most, responsible for fourteen months of the
delay -- just two months longer than the one-year benchmark that
triggers the speedy trial inquiry under Barker. This delay is not
even close to the eight-and-one-half year delay in Doggett, or the
five-year delay in United States v. Shell, 974 F.2d 1035 (9th Cir.
1992) (finding that the government failed to distinguish Doggett).
Therefore, although the government was not diligent in pursuing its
prosecution against Robinson during this fourteen-month period,
this delay was not so excessive so as to require the state to rebut
the presumption of prejudice. Doggett, 112 S. Ct. at 2694.
We further find that Robinson must demonstrate concrete proof
of his prejudice because of his responsibility for the lion's share
of delay. "Doggett holds that we should presume prejudice only if
the defendant isn't responsible for the delay." United States v.
Aguirre, 994 F.2d 1454, 1457 (9th Cir. 1993). As discussed above,
Robinson is responsible for approximately two-thirds of the total
delay. Any threat to the fairness of his trial occasioned by a
delay in its commencement was obviously a risk Robinson was willing
to take.
In light of the foregoing, we proceed with analysis of
Robinson's prejudice proof. The Supreme Court has identified three
ways of establishing such prejudice: (1) proof of oppressive pre-
trial incarceration; (2) proof of anxiety and concern of the
accused; and (3) proof of a possibility that the defense was
17

impaired. 407 U.S. at 533. Robinson claimed to have suffered
prejudice in several respects. The district court found his claims
to be wholly without merit. We agree.
Robinson claims that because of the delay in prosecution, his
defense was impaired. He bases this claim on two grounds: (1) the
loss of two "alibi witnesses," and (2) the loss of two items of
physical evidence. With regard to the alibi witnesses, Robinson
last spoke to both witnesses in the latter part of 1980. One of
them was shot to death in May of 1982; the other cannot be located.
No attempt to find them was made until February 2, 1984 when
Robinson's counsel requested the Harris County District Clerk to
subpoena them. Even assuming these individuals could have and
would have provided exculpatory testimony, either Robinson or his
attorney should have taken adequate steps to preserve their
testimony for trial. Davis, 857 F.2d at 1041.
As for their testimony, Robinson claims that the witnesses
would have corroborated the "alibi" he presented at trial. By the
trial's end, however, the prosecution had managed to blow so many
holes in Robinson's alibi that the only effect their testimony
would have had would be to have transformed Robinson's alibi from
an incredibly tall tale to just a tall one. The record reveals
that Robinson's alibi was thoroughly destroyed by his own
contradictory statements and the testimony of other witnesses,
including Robinson's brother-in-law and a nun.
With regard to the lost physical evidence, shortly after the
rape, Mrs. Hoffpauir submitted to a medical examination from which
18

a rape kit was prepared. She also provided a description of her
attacker to a police artist who prepared a composite drawing. The
prosecution could locate neither the rape kit nor the drawing for
Robinson's trial. Robinson obviously asserts that these items
would have proved his innocence.
Robinson's assertions, however, are insupportable. They
amount simply to general allegations and speculation. Robinson can
offer no evidence of what the rape kit or composite drawing would
have shown. Indeed, when considered in light of the other evidence
establishing Robinson's guilt, it is more likely that this evidence
would have been inculpatory.4 We, therefore, find that Robinson is
unable to establish that the loss of this evidence resulted in
actual prejudice to his case. United States v. Ballard, 779 F.2d
287, 293 (5th Cir. 1986); See United States v. Huntley, 976 F.2d
1287, 1291 (9th Cir. 1992); See United States v. Sherlock, 962 F.2d
1349, 1354 (9th Cir. 1989).
Thus we conclude that the district court correctly found
Robinson's assertions of prejudice to be without merit. Although
4Robinson tries to make much of the fact that Mrs. Hoffpauir
failed to identify Robinson in a lineup held shortly after her
rape. Evidence contained in the record indicates that Hoffpauir
was severely traumatized by the rape. Indeed, she went into
hysterics at the lineup, ultimately having to be taken to the
hospital. The evidence showed that Robinson was number six of six
in the lineup. There is evidence that Mrs. Hoffpauir saw only five
individuals at the lineup. She ultimately made a tentative
identification by writing, "I think 5" on a piece of paper and
signing her name. The piece of paper on which she wrote is in the
record. Examination of this paper, specifically the manner in
which she recorded her choice and signed her name, provides insight
as to the degree of trauma under which she was suffering at that
time.
19

there is no question that Robinson was prejudiced in the trial of
his case, our review of the record reveals that the prejudice was
not due to any delay in his prosecution, but rather to his guilt.
Having evaluated the factors under the Barker balancing test,
we conclude that the district court correctly determined the issue;
Robinson has failed to establish any violation of his Sixth
Amendment right to a speedy trial. Although the total delay was
approximately forty-four months, it is Robinson who properly should
bear responsibility for the greater part of the delay. And it is
our belief that the Sixth Amendment does not permit a criminal to
take advantage of a delay that his own conduct occasioned.
Conclusion
The judgment of the district court denying relief is AFFIRMED.
c:br:opin:90-4554p:cf
20