Supplemental Memorandum — United States v. MacDonald

No. 75-1892

eens icHiAL ROD lB, CLERK

In the Supreme Court of the Hnited States

OcTOBER TERM, 1976

UNITED STATES OF AMERICA, PETITIONER

Vv.

JEFFREY R. MACDONALD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

SUPPLEMENTAL MEMORANDUM FOR

THE UNITED STATES

Wape H. McCresr, Jr.,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

No. 75-1892

UNITED STATES OF AMERICA, PETITIONER

Vv.

JEFFREY R. MACDONALD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

SUPPLEMENTAL MEMORANDUM FOR

THE UNITED STATES

The Solicitor General, on behalf of the United States,

submits this supplemental memorandum to discuss the

applicability of the Court’s recent decisions in Abney

v. United States, No. 75-6521, decided June 9, 1977,

and United States v. Lovasco, No. 75-1844, decided June

9, 1977, to this case.

1. In Abney v. United States, supra, the Court held

that a pre-trial order denying a defendant's motion to dis-

miss an indictment on double jeopardy grounds was a

“final decision” within the meaning of 28 U.S.C. 1291

and, hence, was immediately appealable. The Court’s

decision stressed the unique nature of a double jeopardy

claim, noting that the validity of such a claim is inde-

pendent of the merits of the charge against the defendant

and that the Double Jeopardy Clause is designed to “pro-

tect{ ] an individual against more than being subjected

(1)

2

to double punishments. It is a guarantee against being

twice put to sria/l for the same offense” (slip op. 9). The

Court observed (id. at 10):

Obviously, these aspects of the guarantee’s pro-

tections would be lost if the accused were forced to

‘run the gauntlet’ a second time before an appeal

could be taken; even if the accused is acquitted, or,

if convicted, the conviction ultimately reversed on

double jeopardy grounds, he has still been forced

to endure a trial that the Double Jeopardy Clause

was designed to prohibit. Consequently, if a criminal

defendant is to avoid exposure to double jeopardy

and thereby enjoy the full protection of the clause,

his double jeopardy challenge to the indictment

must be reviewable before that subsequent exposure

occurs.

Although the Court in Abney therefore recognized an

exception to “the normal rule of finality” (slip op. 11)

before an appeal in a criminal case could be taken, it

carefully limited the scope of the exception. Interlocutery

appeals are not permissible to challenge orders, such as

the denial of a motion to dismiss an indictment for failure

to state an offense, that “may be reviewed effectively,

and, if necessary, corrected if and when a final judg-

ment results” (slip op. 12). Moreover, Abney holds that

the courts of appeals are without “pendent jurisdiction”

to review issues that are not collateral—that is, issues

not permeated by “special considerations” justifying an

interlocutory appeal may not receive appellate considera-

tion prior to trial even if they are joined to a double jeo-

pardy claim. /d. at I1.

2. In light of the Court's holding in Abney, the court

of appeals erred in assuming jurisdiction over respond-

ent’s appeal from the pre-trial order denying his motion

3

to dismiss the indictment on speedy trial grounds.' The

protections afforded by the Speedy Trial Clause would

not be “lost, probably irreparabiy” (Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546) unless the

validity of the claim were determined before trial. Unlike

the Double Jeopardy Clause, the interest implicated by

the Speedy Trial Clause is not the avoidance of the trial

itself, but rather the avoidance of unnecessary and un-

justifiable delays between accusation and trial. More-

over, unlike the double jeopardy ban, the speedy trial

command of the Sixth Amendment is not exclusively a

personal right of the defendant, but is also designed in

important part to serve societal interests that exist “sep-

arate from, and at times in opposition to, the interests

of the accused.” Barker v. Wingo, 407 U.S. 514, 519.

The policies that underlie allowance of an immediate

appeal in the case of double jeopardy claims, where a

post-trial appeal cannot fully vindicate the interests in-

volved, thus have no application to speedy trial conten-

tions. Indeed, interlocutory appeals of speedy trial claims

would undermine the very goals that the constitutional

provision is designed to achieve, because the appeal will

in most instances simply add to the length of the pre-

trial delay.?

'The opinion below is somewhat ambiguous as to whether the

court of appeals viewed respondent's speedy trial claim as “pendent

to [his] double jeopardy claim” (Pet. App. Sa) or as independently

appealable. See also Br. in Opp. 33-34 (“{t}he court of appeals al-

lowed Dr. MacDonald to pursue an interlocutory appeal on sneedy

trial grounds only after it had first determined that the claim was

inextricably tied to his double jeopardy claim”). We believe that

it is clear from Abney that neither rationale sustains the assertion

of jurisdiction.

2Moreover, while double jeopardy claims raise issues wholly dis-

tinct from those to be considered at the trial, speedy trial claims

require consideration of, among other factors, the prejudice that the

4

3. Since the decision in Abney clearly indicates that the

court below lacked jurisdiction to consider respondent's

appeal from the district court’s order denying his motion to

dismiss the indictment for denial of a speedy trial,’ we

believe that the judgment of the court of a ls should be

delay has caused to the ability to mount a defense. The extent and

significance of such prejudice rarely can be determined in the ab-

sence of a trial. See Barker v. Wingo. supra, 407 U.S. at 532. Thus,

pre-trial appellate review of speedy trial claims will in many cases

necessarily be premature.

A related recognition of this distinction between double jeopardy

and speedy trial claims exists in the different treatment accorded the

contention that such claims are waived by pleas of guilty. While

such a plea does not preclude subsequent assertion on appeal of a

double jeopardy claim (Menna v. New York, 423 U.S. 61), it has

been consistently held that a plea of guilty waives defects such as

pre-indictment delay and the denial of a speedy trial. See, e.g.,

United States v. O'Donnell, 539 F. 2d 1233, 1236-1237 (C.A. 9),

certiorari denied, No. 76-234, November 16, 1976; Speed v. United

States, 518 F. 2d 75, 77 (C.A. 8), certiorari denied sub nom. Camp

v. United States, 423 U.S. 988; Karcher v. Wainwright, 476

F. 2d 179, 180 (C.A. 5); United States v. Mann, 451 F. 2d 346,

347 (C.A. 2).

‘Although the court of appeals analyzed the delay between 1970,

when the crimes in this case were committed and the military pro-

ceedings involving respondent were held, and January 1975, when

respondent was indi¢ted, in terms of Sixth Amendment principles,

we have argued in the petition that the proper inquiry is one of due

process under the Fifth Amendment. Pet. 17-25. The Court's deci-

sion in United States v. Lovasco, supra, strongly suggests that the

pre-indictment delay here did not violate the Due Process Clause.

In assessing the reason for the hiatus prior to respondent's indict-

ment, the court of appeals conceded that the case was complex (Pet.

App. 2la) and that the government had not been motivated by bad

faith or by a desire to hamper the defense (id. at 20a). The court con-

cluded only that the delay, though largely unexplained, was due

either to “indifference, negligence, or ineptitude” and that it there-

fore “must be weighed against the government” (id. at 23a). Lovasco

establishes, however, that compelling respondent to stand trial

under such circumstances would not be fundamentally unfair (slip

op. 7).

s

5

reversed and remanded with instructions to dismiss that

portion of respondent's appeal*—a course that will prevent

further delay in an important first degree murder prosecu-

tion that already has been awaiting trial for more than two

years. Alternatively, the Court may conclude that it is more

appropriate to vacate the judgment of the court of appeals

and to remand for consideration in light of the intervening

decisions in Abney and Lovasco.

Respectfully submitted.

Wape H. McCree, Jr.,

Solicitor General.

JuNE 1977.

‘In view of its decision on the Sixth Amendment question, the

court of appeals found it unnecessary to render an opinion on re-

spondent’s double jeopardy claim (Pet. App. 28a). Since Adney

holds that the double jeopardy claim alone was appealable prior to

trial, the court of appeals should address that issue on remand.

DOJ-1977-06