Petition — United States v. MacDonald

No. 75-1892

Gu the Supreme Court of the Hnited States

OctoBer TERM, 1975

UnitTep STATES OF AMERICA, PETITIONER

Vv.

JEFFREY R. MacDonatp

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

KENNETH 8. GELLER,

Assistant to the Solicitor General,

SHIRLEY BACCUS-LOBEL,

MARSHALL TAMOR GOLDING,

BRIAN M. MURTAGH,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Page

QED DER ie nthintcsiiniaanvtibiitieannetnntenecetinedt 1

SOOO chk, hebisitaitice cin dadciitidtimaiainiisiersanniaalle 2

SSRI nc. cunnmionneenamesecsmenenadnttiniie 2

Constitutional provision and statute involved___....--.-- 2

GE acitenpannnnesenesanneadinangenesbiedbonse 2

Reasons for granting the writ................<<<<<-<<-<- 14

Re EA SE... 25

CITATIONS

Cases:

Abney v. United States, No. 75-6521, certiorari

TE EIN 1M’ MII nnsaicndnnstinsinadiisiendetianinnitidseenmiendiey 14, 16

Barker v. Wingo, 407 U.S, 514_-------------- 12, 15, 16, 19

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

Eee a a ee 15

Dillingham v. United States, 423 U.S, 64.----2------ 17

Klopfer v. North Carolina, 386 U.S, 213_....-------- 21, 22

United States v. Bishton, 463 F. 2d 887...-.-..-.---- 20

United States y. Ewell, 383 U.S. 116_..-------------- 15, 25

United States. Flores, 501 F. 2d 1356.......-_____- 21

United States v. Lansdown, 460 F. 2d 164... - 11

United States v. Marion, 404 U.S, 307_.--.-----.----- 11,

17, 18, 19, 21 ,22, 23

United States v. Piluso, C.A. 4, No. 76-1274, motion

to dismiss appeal denied, March 31, 1976_...._.__- 16

Constitution and statutes:

United States Constitution :

Ee TS 22, 25

ee ae passim

Speedy Trial Act of 1974, 18 U.S.C. (Supp. IV)

SORE CREED ctiecitensmescnnpnasccccnssuensenecess 19

Uniform Code of Military Justice, as amended, 10

U.S.C. 801, et seq.:

pS eS a 7

Article 32, 10 U.S.C. 832.................... 7, 8, 9, 18

Bate GB 9B UB. GiB. cnccccccccceccescsecens 18

Asticls 118, 10 UBC. 918... .ccccccccccccceccccs 8

@

214-529—76——-1

Il

Constitution and Statutes—Continued Page

BO UAE. BI cco etidrttisdittcreniinmuntnniignentnn 2

OD TE. Cie ctrendtinnctngttiecnnqenimecwsensents 25

BD ARK Fi eciiccciiindinsiteencpanpiimnausncianed 2, 14, 16

Miscellaneous:

American Bar Association, Standards Relating to

Speedy Trial §$22(b) and 2.3(f) (App. draft

en eT EN 19

Manual for Courts-Martial, United States © 33f (Rev.

Pe RETIRES SO TINE NS ENR STAD 9

In the Supreme Court of the United States

OcToBER TERM, 1975

No.

UNITED STATES OF AMERICA, PETITIONER

v.

JEFFREY R. MacDona.p

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. B) *

is reported at 531 F. 2d 196. The order of the court of

appeals (Pet. App. A) denying the government’s peti-

tion for rehearing, with a suggestion for rehearing

en bane, is unreported. The opinion and order of the

district court denying respondent’s motion to dismiss

the indictment (Pet. App. D) are unreported.

*“Pet. App.” refers to the separately-bound appendix to this

petition.

(1)

: 2

JURISDICTION

The judgment of the court of appeals was entered

on January 23, 1976. A timely petition for rehearing,

with a suggestion for rehearing en banc, was denied

on April 30, 1976. On May 26, 1976, the Chief Justice

extended the time for filing a petition for a writ of

certiorari to and including June 29, 1976. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether a pretrial order declining to dismiss an

indictment on speedy trial grounds may be appealed

by the defendant prior to trial.

2. Whether respondent was deprived of his Sixth

Amendment right to a speedy trial.

CONSTITUTIONAL PROVISION AND STATUTE INVOLVED

The Sixth Amendment to the United States Consti-

tution provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a ,speedy and public

ial © ° ¥, |

28 U.S.C. 1291 provides in pertinent part:

The courts oi appeals shall have jurisdiction

of appeals from all final decisions of the dis-

trict courts of the United States * * *,

STATEMENT

Respondent was charged with the first-degree mur-

der of his wife and two daughters, in violation of 18

U.S.C, 1111, in an indictment returned on January 24,

1975, by a grand jury of the United States District

3

Court for the Eastern District of North Carolina. On

July 28, 1975, the district court denied respondent’s

motions to suppress evidence and to dismiss the in-

dictment (Pet. App. 44a-50a). Respondert appealed,

and the government moved to dismiss the appeal for

lack of jurisdiction. On August 15, 1975 (three days

before trial was scheduled to begin), the court of ap-

peals entered an order permitting the appeal and

staying respondent’s trial (Pet. App. 42a—-43a). On

January 23, 1976, the court of appeals reversed and

remanded with directions to dismiss the indictment on

the ground that respondent had been denied his Sixth

Amendment right to a speedy trial (Pet. App. 3a-28a).

1. In the early morning of February 17, 1970,

respondent’s pregnant wife, Colette, and his two

daughters, Kimberly and Kristen, aged five and two,

were bludgeoned and stabbed to death at respondent’s

quarters on the Fort Bragg military reservation in

North Carolina. Respondent, a Captain in the Army

Medical Corps assigned to the “Green Berets,” tele-

phoned the military police at 3:40 a.m. for assistance

(A.615).2 Clad only in his blue pajama _ bottoms,

*“A.” refers to the appendix to respondent's brief in the court

of appeals, a copy of which is being lodged with the Clerk of this

Court. The summarized testimony of the witnesses at the Army

Article 32 investigation, prepared by the investigating officer, ap-

pears at A.615-652. As reflected in the index found at A.666, the

verbatim transcripts are referred to as exhibits E-1 to E-57.

References to the verbatim record rather than to the summary

will be cited by the pages of the transcript (¢.g., E-1, at 5). Docu-

mentary exhibits are indexed at A.581-586 and A.656-662.

Government exhibits are referred to by the letter “G” and defense

exhibits by the letter “D.”

4

respondent informed the police that he and his family

had been attacked by four assailants (G—4, at 1).

Shortly thereafter, Army Criminal Investigation

Detachment (C.I.D.) Duty Agent William F. Ivory

arrived at the scene as respondent was being removed

to the hospital. Agent Ivory walked through the apart-

ment, observing the bodies and the blood-stained walls

and floors (1{-21, at 632-637) ; he removed a torn and

bloody blue pajama top that had been draped on the

chest of respondent’s wife and a Hilton bathmat that

was resting on her abdomen (A.628).

As the bedy of respondent’s wife was being lifted

from the floor of the master bedroorn onto a stretcher,

Agent Ivory noticed a blue thread adhering to a clot

of blood on the rug where her head had rested. This

discovery prompted a search by C.1.D. personnel for

other blue threads and yarns inside and outside re-

spondent’s quarters. More than one hundred blue

threads and yarns, identical to those of respondent’s

blue pajama top, were ultimately collected from vari-

ous rooms in and from the area immediately outside

the house: more than 70, including approximately 30

from the spot where the body of respondent’s wife had

been found, were discovered in the master bedroom;

19 were uncovered from the bedding in which Kim-

berly’s body had been wrapped; three were removed

from Kristen’s bedding; two were taken from a

wooden club lying just outside the utility room door;

significantly, no threads were found in the living room

where respondent claimed that he had been violently

5

attacked and that his pajama top had been torn

(A.628-629; E-3, at 400; E-21, at 657; G-7; G-20;

G-21; G-22; G-24; G-26).

The bodies of respondent’s wife and children were

immediately autopsied (A.625-626). Pathologists de-

termined that although Colette and Kimberly had

sustained severe blunt trauma injuries to the head

before death, all of the victims had died from multiple

deep penetrating stab wounds.’ It was also determined

that respondent and each of the victims had a dif-

ferent biood type, thus facilitating the investigators’

recreation of the murders and of respondent’s move-

ments. Furthermore, C.I.D. agents and laboratory

technicians engaged in a painstaking analysis of the

crime scene over five continuous days, photographing,

dusting, and collecting all real evidence found in re-

spondent’s quarters (G-98; D-25; D-26; D-27).

Respondent was interviewed by several law enforce-

ment officers on the morning and afternoon following

the murders. He reported that at least four intruders

had entered his home, that the assailants had en-

countered him in his living room and had struck him

with a bludgeon, that he had heard his wife and older

daughter sereaming but had lost consciousness, and

that when he awoke he had found his family dead

(G-76, at 1-5). Respondent also provided a detailed

account of his actions upon discovering the bodies,

including the statement that he had removed his pa-

* Respondent’s wife had suffered 16 elliptical stab wounds and

21 puncture wounds to the chest (A.625).

6

jama top and had covered his wife’s body with it and

with a Hilton towel (G—76, at 3; G—101, at 4-9).

By April 6, 1970, after an intensive but incomplete

investigation had been conducted, it had become ap-

parent to C.I.D. agents that many aspects of respond-

ent’s version of the attack and of his actions after

regaining consciousness were inconsistent with the

laboratory analysis of the physical evidence. For ex-

ample, although respondent alleged that he had been

stabbed in the right chest, and although he had in fact

suffered an incision and a partially collapsed right

lung (A.621), there was no hole in the rghit front

portion of his pajama top to correspond to that wound

(G-74); although respondent had not sustained any

stab wounds to his back (D-28), more than 30 punc-

tures were visible on the rear panels of his pajama

top (G-19); although respondent alleged that he had

been violently assaulted in his living room (G-76, at

2; G-101, at 4), no seam threads or fabric yarns from

his pajamas were uncovered in a minute, pile-by-pile

examination of the living room rug (G-7; E=21, at

661); although respondent alleged that he had been

attacked with a wooden club (G-101, at 1), no

splinters from the club were found in the living room

despite the fact that they were discovered in the bed-

rooms (I-21, at 400), nor was there any trace of blood

on the couch, walls, floor or rug in the area of his

alleged attack (G—7; G-24; E-8, at 447, 469-470);

although respondent alleged that he had not been

wearing his pajama top when he inspected Kimber-

7

ly’s body (G-101, at 7), the garment bore stains of

Kimberly’s blood (G—7); although respondent alleged

that his pajaina top had been torn in a struggle in the

living room (G-101, at 4), the pocket of the pajama

top was found near his wife’s body in the master bed-

room (E-21, at 660) and flecks of Colette’s blood were

discovered on the pocket of the pajama (G—7); and

although respondent alleged that he had not been

wearing his eyeglasses either when assaulted or at any

time thereafter (G-101), investigators found his

glasses lying on the floor of the living room, with

Kristen’s blood on the surface of the lens touching the

floor.

Based on these and other discrepancies in his story

and on additional evidence, respondent was advised of

his rights on April 6 and was warned that he was a

suspect. Later on that day, respondent’s immediate

commander, Col, Francis B. Kane, Jr., relieved re-

spondent of his medical duties and restricted him to

the military reservation on condition that he be es-

corted by another officer when not in his quarters.

Several weeks thereafter, on May 1, 1970, Col. Kane

forma!ly preferred criminal charges against respond-

ent, pursuant to Article 30 of the Uniform Code of

Military Justice, 10 U.S.C. 830 (Pet. App. 7a).

As required by Article 32 of the U.C.M.J., 10

U.S.C. 832,‘ an investigating Officer, Col. Warren Y.

* Article 32, U.C.M.J., 10 U.S.C, 832, provides:

“(a) No charge or specification may be referred to a general

court-martial for trial until a thorough and impartial investiga-

tion of all the matters set forth therein has been made. This in-

214-529--76-—-2

8

Rock, was appointed to investigate the matter and to

recommend whether the charges (three specifications

of murder, in violation of Article 118 of the U.C.MJ.,

10 U.S.C. 918) should be referred by the General

Court-Martial Convening Authority (the post com-

mander) to a general court-martial for trial. At the

hearing held pursuant to Article 32, the government

presented 27 witnesses and respondent 29, the ma-

vestigation shall include inquiry as to the truth of the matter set

forth in the charges, consideration of the form of charges, and a

recommendation as to the disposition which should be made of the

case in the interest of justice and discipline.

“(b) The accused shall be advised of the charges against him

and of his right to be represented at that investigation by counsel.

Upon his own request he shall be represented by civilian counsel if

provided by him, or military counsel of his own selection if such

counsel is reasonably available, or by counsel detailed by the officer

exercising general court-martial jurisdiction over the command.

At that investigation full opportunity shal] be given to the accused

to cross-examine witnesses against him if they are available and to

present anything he may desire in his own behalf, either in defense

or mitigation, and the investigating officer shall examine available

witnesses requested by the accused. If the charges are forwarded

after the investigation, they shall be accompanied by a statement

of the substance of the testimony taken on both sides and a copy

thereof shall be given to the accused.

“(c) If an investigation of the subject matter of an offense has

heen conducted before the accused is charged with the offense, and

if the aceused was present at the investigation and afforded the

opportunities for representation, cross-examination and presenta-

tion prescribed in subsection (b), no further investigation of that

charge is necessary under this article unless it is demanded by the

accused after he is informed of the charge. A demand for further

investigation entitles the accused to recall witnesses for further

cross-examination and to offer any new evidence in his own behalf.

“(d) The requirements of this article are binding on all persons

administering this chapter but failure to follow them does not

constitute jurisdictional error.”

-

9

jority of whom were character witnesses. Respondent

also testified, repeating his previous recollection of

the events of February 17, 1970, including the asser-

tion that his pajama top had been ripped in the living

room by his assailants and that he had placed it on

his wife’s chest upon finding her body in the master

bedroom (Pet. App. 7a-8a; A.643).

At the conclusion of the Article 32 proceeding,

Col. Rock filed a report recommending that the

charges against respondent be dismissed but that fur-

ther investigation of the crime by the appropriate

civilian authorities be undertaken (Pet. App. 8a).

This recommendation was forwarded to Maj. Gen.

Kdward M. Flanagan, Jr., Commanding General of

the unit to which respondent was assigned, who on

October 23, 1970, dismissed the charges because of

insufficient evidence available to justify their reference

to trial by court-martial (ibid.). See Manual for

Courts-Martial, United States 133f (Rev. ed. 1969).

In December 1970, the Army granted respondent an

honorable discharge for reasons of hardship.

2. Following respondent’s release from the military,

the Department of Justice requested the C.I.D. to

continue its investigation. During the ensuing year,

the C.I.D, conducted a total of 699 interviews or re-

interviews in 30 states and several foreign countries

(Pet. App. 9a). In addition to following leads fur-

nished by respondent and others, the C.I.D. engaged

in numerous forensic tests, including a comprehensive

effort to identify all foreign »bjects found at the

scene of the crime (e.g., hairs and fibers, fingerprints,

paint, wood, knives, wax). These investigative efforts

10

were recounted in a massive, thirteen-volume report,

which was transmitted to the Department in June

1972. After the raw report had been examined by sev-

eral persons within the Department,’ the C.I.D. was

requested to investigate undeveloped and newly-

developed leads, After additional interviews and scien-

tifie tests, the C.I.D. forwarded supplemental reports

on November 9, 1972, and August 20, 1973 (Pet. App.

Ya).

In late May 1974, after further study, the govern-

ment determined that many unanswered questions in

the complex case could only be resolved by use of the

broad investigative powers of the grand jury. There-

fore, in August 1974, a grand jury of the United

States District Court for the Eastern District of North

Carolina was impanelled to investigate the murders

fully. During the next several months, some 75 wit-

nesses, including respondent, were called to testify,

while the F.B.I. undertook an extensive reinvestiga-

tion of the crime that included exhumation of the

victims to obtain hair samples.’ This renewed inquiry

established that there was probable cause to believe

that respondent had killed his family and had staged

the murder scene to cover up his crime (Pet App.

7a, 9a).

3. Respondent was indicted for the murders on

* Contrary to the court of appeals’ statement (Pet. App. 9a), the

C.1.D. report recommended not respondent’s prosecution but

further investigation.

° The grand jurors also inspected respondent’s quarters on Fort

Bragg, where the murders occurred. These quarters were ceized on

February 17, 1970, and have remained sealed to this day.

11

January 24, 1975. On July 28, 1975, the district court

denied respondent’s pretrial motions to dismiss the

indictment on several grounds, including double

jeopardy and denial of a speedy trial.’ Relying on

United States v. Marion, 404 U.S. 307, the court con-

cluded (Pet. App. 49a) that “[t]he right to a speedy

trial under the Sixth Amendment does not arise until

a person has been ‘accused’ of a crime, and in this

ease this did not occur until the indictment had been

returned.”’

The court of appeals, with one judge dissenting,

reversed and remanded with directions to dismiss the

indictment. Although recognizing that interlocutory

orders in criminal cases are generally not appealable,

the court, relying upon its decision in United States

v. Lansdown, 460 F. 2d 164, held that post-tria! con-

sideration of respondent’s double jeopardy claim

“could provide only inadequate relief because the

double jeopardy prohibition was intended to prevent

the hardship of undergoing a second trial’’ (Pet. App.

5a). In addition, the court held that respondent’s

speedy trial claim was a proper subject for interlocu-

tory review because it involved “a fundamental con-

stitutional right,” was “[p]endent to the double

jeopardy claim, and closely related to it,’’ and could

"On May 30, 1975, the district court had denied respondent’s

motion for a change of venue to the Central District of California.

The court of appeals dismissed respondent’s appeal from this

order (C.A, 4, No. 75-1621, decided July 1, 1975, certiorari denied,

423 U.S. 926) and denied his petition for a writ of mandamus to

compel the district court to grant the change of venue (C.A. 4,

No. 75-1681, decided July 15, 1975, certiorari denied, 423 U.S.

927).

12

‘he decided without considering the merits of the

charges against [respondent]” (ibid.).°

On the merits, the court of appeals concluded that

respondent had heen denied his Sixth Amendment

right to a speedy trial. The court viewed Col. Kane’s

preferral of criminal charges against respondent in

May 1970, and the contemporaneous restriction of

respondent’s liberties, as “the functional equivalent

of a civilian arrest warrant.” It concluded that the

protections afforded by the Sixth Amendment were

activated as of that date and that the delay of more

than four and one-half years between respondent's

accusation and his indictment was of sufficient length

to require application of the balancing analysis out-

lined in Barker vy. Wingo, 407 U.S. 514 (Pet. App.

13a-20a). Although the court of appeals conceded that

the government had not deliberately delayed in order

to hamper the defense, it nevertheless determined that

at least two years of the delay were attributable

either to “indifference, negligence, or ineptitude”

(id. at 23a), that respondent had ‘consistently ex-

pressed a desire to have the case resolved” and had

“reasonably asserted his right to a speedy trial” (id.

at 24a), and that respondent had been prejudiced by

the delay because he “thas had to live with the constant

threat of a new prosecution,’’ “has been required to

* ‘The court also ruled that in view of its acceptance of the appeal

on the double jeopardy and speedy trial issues, it would consider

as well the other questions that respondent had sought to appeal

(composition of the grand jury, alleged prosecutorial misconduct,

discovery, and suppression of evidence), since those questions, “if

not now presented, might occasion further delay in terminating

this litigation” (Pet, App. 4a, n. 3).

=>

13

retain counsel at his own expense, and * * * has suf-

fered anxiety concerning the unresolved nature of

the case.” Finally, the court stated, without specify-

ing particulars, that “in the five years since the mur-

ders, memories have faded and witnesses can no longer

he expected to reliably recall details” (td. at 25a).

Judge Craven dissented. He disputed the court’s

conclusion that respondent had been subjected to the

civilian equivalent of an arrest in May 1970, finding

that the Army’s inquiry fell ‘*‘somewhere between an

unsuecessful presentation to a grand jury and an arrest

and subsequent release because of a failure to demon-

strate probable cause for the arrest,’’ neither of which

“warrants an application of the sixth amendment’s

speedy trial guarantee’’ (Pet. App. 32a). In any event,

Judge Craven reasoned that since all military charges

against respondent had been dismissed in October 1970,

and since respondent had “stood under no ‘public accu-

sation’ ’’ or other disability during the four-year period

prior to his indictment, the majority’s conclusion that

respondent’s right to a speedy trial continued unabated

from May 1970 until the return of the indictment was

unsupportable (id, at 32a-38a). Judge Craven viewed

respondent’s claim as one of pre-indictment delay,

which he found unpersuasive in the absence of con-

crete evidence of actual prejudice to respondent (id. at.

40a-41a).°

°On April 30, 1976, the court of appeals denied the govern-

ment’s petition for rehearing en bane by a 3-3 vote. Chief Judge

Haynsworth, Judge Craven and Judge Widener would have

granted rehearing “for the reasons stated in Judge Craven's dis-

senting opinion” (Pet. App. 2a).

14

REASONS FOR GRANTING THE WRIT .

1. The question whether the courts of appeals have

jurisdiction under 28 U.S.C. 1291 to hear interlocutory

appeals in criminal cases is one that this Court has

already determined to be of sufficient importance to

warrant its attention. Abney v. United States, No. 75-

6521, certiorari granted, June 14, 1976, presents the

question whether a pretrial order declining to dismiss

an indictment on double jeopardy grounds may be ap-

pealed by the defendant prior to trial.

Our memoranda in Abney and in Barket v. United

States, No. 75-1280, which raises the identical issue,

set forth the reasons why 28 U.S.C. 1291 should not be

construed to permit appeal of interlocutory orders in

criminal cases." We recognized, however, that since

one of the primary interests protected by the Double

Jeopardy Clause is avoidance of the trial itself, there

may be plausible arguments why a limited exception to

the general principle of nonappealability should be

countenanced for such claims. While we believe that

these contentions are outweighed by other jurispru-

dential considerations, elaborated in our. memorandum

in Barket, that militate against allowing a piecemeal

appeal, double jeopardy orders may nevertheless pre-

sent a unique aspect of the more general problem

illustrated by this case. Indeed, the instant case is an

apt example of our observation in Barket (Memoran-

dum at 13 and n, 16) that once pretrial appellate

review of double jeopardy claims is accepted, some

*° We are providing respondent’s counsel with a copy of our

memoranda in these cases.

15

courts may be quick to extend the practice beyond

cases involving only that particular constitutional

provision,

This case, then, presents an opportunity for the

Court to consider the vexing and important question

of the propriety of interlocutory criminal appeals in

a context not complicated by the special cireumstances

that may obtain in cases involving double jeopardy

claims.” The protections afforded by the Sixth Amend-

ment would not be “lost, probably irreparably”

(Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

541, 546) unless the validity of the claim were deter-

mined prior to trial. The speedy trial provision is

unique among the provisions of the Bill of Rights in

that it is as much designed to foster the interests of

society in the expeditious disposition of pending crimi-

nal charges as to confer protection upon individual

defendants. Barker v. Wingo, supra, 407 U.S. at 519-

522, Furthermore, the individua! interest that is im-

plicated by the provision is not the avoidance of any

trial, but the diminution of the risk of conviction

based on memories dimmed by the passage of time (see

United States v. Ewell, 383 U.S. 116, 120), plus the

interest, shared with society at large, that pending ac-

cusations be resolved with due expedition. This com-

plex of interests is fully served by reversal of any

conviction procured after a period of unconstitutional

* Although the court of appeals termed respondent’s Sixth

Amendment claim as “pendent” to his double jeopardy claim (Pet.

App. 5a), it viewed both as independently appealable prior to

trial. This conclusion is supported by the court’s determination

not to address respondent’s claim of double jeopardy in light of

its disposition of the case (/d. at 28a).

16

delay; accordingly, no policies would justify allow-

ance of interlocutory appeals in cases of this type.

Moreover, the analysis required of an appellate

tribunal when a speedy trial claim has been raised is

most effectively accomplished after a complete pres-

entation of the facts. See Barker vy. Wingo, supra, 407

U.S. at 530-532. |

Review of the jurisdictional issue in this case is

therefore clearly warranted in light of Abney. If the

Court rules that the pretrial order in Abney is not

appealable, it would of course follow that the court of

appeals lacked jurisdiction to determine respondent’s

interlocutory appeal. If, however, the Court holds that

the denial of a motion to dismiss on double jeopardy

grounds is subject to review prior to trial, this case

affords an excellent vehicle in which to explore

whether that principle of interlocutory appeal in

criminal cases should be extended to other types of

claims that, if accepted, would bar a defendant’s

prosecution,”

—

* The court of appeals purported to assume jurisdiction over

respondent's appeal because of “the extraurdinary nature of [his]

case” (Pet. App. 5a). Since the appellate jurisdiction of the

courts of appeals under 28 U.S.C. 1291 is non-discretionary, we

question whether this is a workable limitation on a defendant’s

right to interlocutory review. Indeed, the Fourth Cireuit recently

assumed jurisdiction over another pretrial appeal on speedy trial

grounds due to the “exceptional circumstances of the case.” See

United States v. Piluso, No. 76-1274, motion to dismiss appeal

denied, March 31, 1976. Moreover, even if the courts of appeals

were empowered to refuse to hear an appeal that did not present

an “extraordinary circumstance,” substantial delay would still be

occasioned by defendants’ attempts to secure review while their

trials are pending.

17

2. In holding that the speedy trial provision of the

Sixth Amendment precludes a prosecution of respond-

ent for the murder of his family, despite the fact that

his trial was scheduled to begin less than seven months

after his indictment, the court of appeals has seriously

misconstrued this Court’s decisions in United States v.

Marion, supra, and Dillingham v. United States, 423

U.S. 64. What is more, by including in its speedy trial

calculations the period from October 1970 to Janu-

ary 1975, during which time respondent was not under

arrest, indictment, or any other legal disability, the

court of appeals has taxed the government heavily for

“having conducted an exhaustive criminal investigation

and for withholding charges until all avenues of in-

quiry, favorable as well as unfavorable to respondent,

had been explored. If allowed to stand, this decision

will have a substantial detrimental impact on the ef-

fective administration of the criminal laws.

a. In United States v. Marion, supra, and Dilling-

ham v. United States, supra, this Court held that the

right to a speedy trial guaranteed by the Sixth

Amendment is activated only by the formal accusation

of a crime, either by indictment, information, or

arrest. As was explained in Marion (404 U.S. at 320):

Arrest is a public act that may seriously in-

terfere with the defendant’s liberty, whether he

is free on bail or not, and that may disrupt his

employment, drain his financial resources, cur-

tail his associations, subject him to public

obloquy, and create anxiety in him, his family

and his friends. * * * So viewed, it is readily

18

understandable that it is either a formal indict-

ment or information or else the actual restraints

imposed by arrest and holding to answer a

criminal charge that engage the particular pro-

tections of the speedy trial provision of the

Sixth Amendment.

See also 404 U.S. at 321 and n. 13. A necessary con-

sequence of this rationale is that the right to a speedy

trial is not implicated in the period after the charges

against an accused have been dismissed and he has

heen released from custody. At that point, he no

longer stands under publie accusation or suffers inter-

ference with his liberties; necessarily, there can at

that stage be no Sixth Amendment obligation upon the

vovermuent to bring to trial expeditiously a person

against who no criminal charges are outstanding.

The decision of the court of appeals erodes these

heretofore settled principles. In calculating the delay

underlying respondent’s Sixth Amendment claim, the

fourth Cireuit held that the right to a speedy trial

had been triggered by respondent’s military arrest in

May 1970" and had proceeded unabated until the date

of his scheduled trial in August 1975—this despite the

As Judge Craven's dissent indicates (Pet. App. 38a—-40a), the —

court’s threshold determination that respondent was arrested in

May 1970, within the meaning of ./arion, is not free from doubt.

Although respondent’s liberties were restricted, the military may

of course impose restrictions upon its officers even in the absence

of criminal charges. Cf. Art. 92 on the U.C.M.J., 10 U.S.C. 892.

Furthermore, Col. Kane stated that he ordered respondent held

in lieu of arrest (see Reh. App. 5-6), and respondent was never

taken into custody but was allowed to engage in military duties

and to take escorted and unescorted trips away from the reserva-

tion during the period of the Article 32 inquiry (Reh. App. 13-

15). (“Reh. App.” refers to the appendix to the government’s

19

fact that the Army had dismissed all charges against

him in October 1970, that respondent had been honor-

ably discharged from the military two months there-

after, and that he had been free from “the actual

restraints” imposed by his arrest or from any other

legal disabilities during the next four years.

This result represents a marked departure from the

standards outlined in Marion; it is a result that is

contrary to the reasoning recently adopted by Con-

gress in the Speedy Trial Act of 1974 (18 U.S.C.

(Supp. IV) 3161(h)(6)) and by other legal authori-

ties; and it is a result that threatens a significant

and wholly unjustified disruption in the enforcement

of the criminal laws by requiring the government

either to afford persons “not the subject of public

accusation” (United States vy. Marion, supra, 404 U.S.

at 321) a speedy trial or to forego future prosecutions.

Moreover, it is a result that is flatly inconsistent with

petition for rehearing, with suggestion for rehearing en banc, in

the court of appeals, a copy of which is being lodged with the

Clerk of this Court.) We are not, however, seeking review of this

issue, which essentially raises a factual question, and we there-

fore assume for purposes of this petition that respondent was

arrested in May 1970.

“* See, e.g., American Bar Association, Standards Relgting to

Speedy Trial §§2.2(b), 2.3(f) (App. draft 1968). Iifed, al-

though the government conceded in its memorandum in Dilling-

ham (No. 74-6738) that the court of appeals may have misapplied

Barker v. Wingo by failing to consider the delay between the

defendant’s arrest and his indictment, we noted in addition (p. 7,

n. 5): “Of course, if the complaint had been dismissed and peti-

tioner had subsequently been indicted, the period between those

two events, during which no charges were outstanding, would not

be ineludable in the period of delay for purposes of the speedy

trial analysis.”

20

the view expressed by the District of Columbia Cireuit

in United States vy, Bishton, 463 F. 2d 887. There, the

defendant had been reindicted after the initial charges

against him had been dismissed on jurisdictional

grounds. In rejecting the claim that defendant’s sec-

ond prosecution violated his right to a speedy trial, the

court declined to consider the period after the first

prosecution had been terminated but before the second

had begun (463 F, 2d at 891):

While the record supplies no explanation for

this delay, it is significant that during this time

appellant was a free man against whom no

prosecution was pending, The Supreme Court

has recently held that the right to speedy trial

attaches when a prosecution has begun, either

by indietment or by the “actual restraints im-

posed by arrest.” United States v. Marion, 404

U.S. 307, 320 * * *. While it is true that one

prosecution for the offense began in April,

1969, that prosecution was finally terminated by

the DCCA in April, 1970; and the rationale of

Marion, although perhaps not applying with

the same force, has relevance to the period be-

tween the end of one prosecution and the

beginning of another, even when the two arise

from the same occurrence. When a_ citizen

stands neither arrested nor indicted for an of-

fense, he “suffers no restraints on his liberty

and is not the subject of publie accusation; his

situation does not compare with that of a de-

fendant who has been arrested and held to an-

swer.” United States v. Marion, supra, at

mY es.

21

The decision below also conflicts with United States

v. Flores, 501 F. 2d 1356, where the Second Circuit

concluded that the delay in indicting a defendant after

the complaint against him had been dismissed was

irrelevant in assessing whether he had been denied

his right to a speedy trial. 501 F. 2d at 1359-1360."

The sole considerations offered by the court of ap-

peals to support its anomalous result were that, dur-

ing the period after the conclusion of the Army’s in-

vestigation but prior to the return of the indictment,

respondent remained under suspicion for the crime,

was required by prudence to retain counsel for his con-

tinuing defense, and was subject to the anxiety of the

threat of a prosecution (Pet. App. 17a). Bui precisely

the same factors will cencern an individual who, al-

though not yet arrested or indicted, knows that he is

the subject of a serious and lengthy criminal investiga-

tion ; recognizing that, the Court in Marion nevertheless

expressly declined to extend the Sixth Amendment’s

protections to that situation. 404 U.S. at 321." If the

*® Flores involved an application of the district court’s prompt

disposition rules, rather than a direct holding on a constitutional

speedy trial claims, as here. However, the purpose of those rules

is to implement the Sixth Amendment's speedy trial requirement

(cf. United States v. Marion, supra, 404 U.S, at 318-319 and n,

10), and it is plain that the analysis of the court in Flores is fully

applicable to cases such as the instant case and would necessitate a

result contrary to that reached by the court below,

** Indeed, the defendants in Marion, like respondent, had been

aware of their status as criminal suspects well in advance of their

formal] indictment, See 404 U.S. at 309,

Nor is the court of appeals’ conclusion supported by K/Jopfer v.

North Carolina, 386 U.S, 213. As Judge Craven pointed out in

22

extension of the speedy trial provision, rejected in

Marion as to persons under no formal accusation of

crime, is to be applied to persons against whom all

pending criminal charges have been dismissed, we sub-

mit that the innovation is of such fundamental impor-

tance that it should be announced by this Court alone.

b. The conclusion that respondent’s rights under the

Sixth Amendment have not been infringed does not

mean that the five-year period of pre-indictment delay

is beyond judicial scrutiny. As the Court noted in

United States v. Marion, supra, 404 U.S. at 324, and

as Judge Craven correctly observed in dissent (Pet.

App. 40a-41a), the proper inquiry is one of due

process under the Fifth Amendment. Specifically, this

Court referred approvingly in Marion to the govern-

ment’s suggestion that the Due Process Clause would

require the dismissal of an indictment “if it were

shown at trial that the pre-indictment delay * * *

caused substantial prejudice to * * * [the accused’s

right] to a fair trial and that the delay was an in-

tentional device to gain tactical advantage over the

accused’’ (404 U.S. at 324; footnote omitted).

dissent (Pet. App. 37a), the distinction that the majority acknowl-

edged between this case and A/opfer—*“there, an indictment re-

mained potentially effective during the period of delay; here,

MacDonald was not indicted until the end of the period” (/d. at

18a)—was central to this Court’s Sixth Amendment analysis in

Alopfer (see 386 U.S. at 221-222) and was the crucial factor that

brought that case within the rule announced in Marion for deter-

mining the applicability of the Sixth Amendment provision. See

404 U.S, at 320. Unlike respondent, Klopfer formally remained

“the subject of public accusation” during the period of delay.

23

Although the court of appeals failed to undertake

this analysis, the record reflects that respondent could

not have sustained his burden under either branch of

the Marion test. First, while we have previously

argued that deterininations of prejudice should not be

attempted prior to trial," this is not a case in which

prejudice may properly be presumed, The govern-

ment’s case is composed primarily of physical evi-

dence, scientific testimony, and the log-eal inferences

to be drawn therefrom, none of which is impaired by

the passage of time. Moreover, respondent’s defense

is dependent upon his own testimony rather than an

alibi or the testimony of others, and he has never

claimed an inability to recall events of the night in

question. Indeed, respondent has presented essentially

the same version of the events from his initial inter-

view on February 17, 1970, to his appearances before

the grand jury in 1974 and 1975. There are no missing

or dead witnesses, and all prior statements in the case

have been transcribed and preserved. To the extent

that witnesses’ memories may have weakened over

time, this factor would affect the government as well as

respondent—and the government must bear the burden

of proving guilt beyond a reasonable doubt.

Nor, as the court of appeals acknowledged (Pet.

App. 20a), was the delay here attributable to a de-

liberate attempt to hamper the defense. As we have

previously noted, see pp. 9-10 supra, large portions of

* A discussion of the dangers inherent in a pretrial resolution of

the due process question is contained in the government’s petition

for a writ of certiorari in United States v. Lovasco, No, 75-1844,

a copy of which is being furnished to counse] for respondent,

24

the five-year hiatus between the crimes and the indict-

ment were spent in exhaustive investigations of the

ease and appraisals of the evidence by the C.1.D. and

the Department of Justice. Additionally, the probative

value of certain evidence obtained at the outset of

the inquiry was not immediately apparent. For ex-

ample, although respondent alleged that his pajama

top had been ripped by his attackers in the living

room of his quarters and that he had subsequently

placed the garment atop his wife’s body, it was not

until July 1971 that the F.B.1. laboratory determined

that respondent’s wife’s blood had stained the pajama

top before it was torn. Similarly, not until three years

later, in October 1974, did the F.B.1. diseover that if

Colette MacDonald’s body were to be covered with

respondent’s pajama top in a certain manner, the

puncture holes in the pajama would correspond pre-

cisely to the ice pick wounds sustained by her chest.

See p. 5, n. 3, supra.

The Fourth Circuit correctly noted (Pet. App. 21a)

that two years elapsed between the receipt of the

C.1.D. report by the Department of Justice in 1972

and the initiation of grand jury proceedings in 1974.

But the failure of the government to have proceeded

with the dispatch deemed desirable, in retrospect, by

the court of appeals does not render the pre-indictment

delay here unreasonable. As we have explained in our

petition in Levasco, the preclusion of prosecution of a

defendant whose guilt may be capable of establishment

beyond a reasonable doubt is a grave step—one that

should not be taken on the basis of judicial second-

guessing of the quality of the investigation conducted

‘y

25

by the executive branch, but that can be justified only

upon a showing that the delay in reaching a prosecu-

torial decision was fundamentally unfair and violated

the defendant’s right to due process of law. This Court

noted in United States v. Ewell, supra, 383 U.S. at

122, that “the applicable statute of limitations * * *

is * * * the primary guarantee against bringing

overly stale criminal charges.’’ The decision of Con-

gress that an indictment for first-degree murder may

be brought at any time (18 U.S.C. 3281) reflects the

view that society’s interest in convicting the perpetra-

tor of that offense is so substantial that prosecution

is to be permitted regardless of the passage of time.

Since the pre-indictment delay in this case did not

violate the Fifth Amendment, the court of appeals’ in-

quiry should have ended and this case should have

proceeded to trial.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

Rosert H. Bork,

Solicitor General.

Ricuarp L. THORNBURGH,

Assistant Attorney General.

KENNETH S. GELLER,

Assistant to the Solicitor General.

SHIRLEY Baccus-Loset,

MARSHALL TaMor GOLDING,

Brian M. Murraau,

Attorneys.

JUNE 1976.

6.8, GOVERNMENT PRINTING OFFicE. 1876