Petitioners Brief — United States v. MacDonald

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In the Supreme Court of the Aniten States —

OcTOBER TERM, 1977

UNITED STATES OF AMERICA, PETITIONER

Vv.

JEFFREY R. MACDONALD

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATFS

Wane H. McCREB, JR.,

Solicitor General,

BENJAMIN R, CIVILETTI,

Assistant Attorney General,

KENNETH S. GELLER,

Assistant to the Solicitor General,

SHIRLEY Baccus-LOBEL,

MICHAEL E, Moore,

BRIAN M. MURTAGH,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinions below .. 1

Jurisdiction .............. 2

Questions presented . . henauaae 2

Constitutional provision and statule involved 2

Statement sinaas 3

Summary of argument __ . 16

Argument 23

I. A pretrial order denying a defendant's

motion to dismiss an indictment on

speedy trial grounds is not appealable

before trial 23

A. Introduction 23

B. The denial of a motion to dismiss

an indictment on speedy trial

grounds is not a “final decision” 26

C. Pretrial decisions rejecting speedy

trial claims are not within the

“collateral order” exception to the

final judgment rule _. 27

1. Pretrial denial of a speedy trial

motion does not constitute a

“complete, formal and final re-

jection” of the claim in the dis-

trict court 31

2. Speedy trial oie do not im-

plicate matters -vholly “separ-

able from, and collateral to,”

the principal issue at the de-

fendant’s trial . iliac 34

Argument—Continued

3. Speedy trial claims do not in-

volve a right that would be

“lost, probably irreparably,” if

review had to await final judg-

ment

Interlocutory appeals from the de-

nial of speedy trial motions should

be especially disfavored because

they would frustrate rather than

promote the values reflected in the

Speedy Trial Clause

II. The interval between respondent’s ar-

rest by the military and his scheduled

trial date on the federal charges did not

violate the Sixth Amendment or war-

rant dismissal of the indictment

The Speedy Trial Clause is inappli-

cable to the period when a defend-

ant is not under arrest or other for-

mal public accusation of a crime

The Sixth Amendment speedy

trial guarantee is designed to en-

sure the expeditious resolution

of pending criminal charges

Extension of the Speedy Trial

Clause to the period after

charges against an accused have

been dismissed would have a

substantial adverse impact on

administration of the criminal

law

Page

Argument—Continued Page

B. The pre-indictment delay in this

case did not violate the Due Process

Clause _. 63

1. Respondent has not demon-

strated actual prejudice to his

defense because of the delay in

accusation 64

2. The pre-indictment delay in this

case was not the result of im-

proper government conduct 66

Conclv ‘ion aa i as 71

CITATIONS

Cases:

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

cided June 9, 1977 passim

Barker v. Wingo, 407 U.S, 514 15, 32, 33, 36,

40, 44, 45, 46, 58

Berman v. United States, 302 U.S. 211 27

Carroll v. United States, 354 U.S. 394 25

Cobbledick v. United States, 309 U.S. 323 26, 41

Cogen v. United States, 278 U.S. 221 26, 40

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 17, 27, 29, 31, 34, 38

DiBella v. United States, 369 U.S. 121 17, 26,

34, 43-44

Dickey v. Florida, 398 U.S. 30 44, 45

Dickinson v, Petrolewm Conversion Corp.,

338 U.S. 507 _... 25

Dillingham v. United States, 423 U.S. 64 50

Eisen vy. Carlisle & Jacquelin, 417 U.S.

156 oo 25

Cases—Continued Page

Heike v. United States, 217 U.S. 423 26, 40

Hoffa v. United States, 385 U.S. 293 _. 56

Humphrey v. Smith, 336 U.S. 695 52

Karcher v. Wainright, 476 F. 2d 179 37

Kirby v. Illinois, 406 U.S. 682 00... 56

Klopfer v. North Carolina, 386 U.S. 213 ro r

57,

Kyle v, United States, 211 F. 2d 912 24

MacDonald vy, Hodson, 42 C.M.R. 184 52

Menna vy. New York, 423 US. 61 37

Moore vy. Arizona, 414 U.S, 25 33

Morris v. Wyrick, 516 F. 2d 1387, certio-

rari denied, 423 U.S. 925 36

Parr v, United States, 351 U.S. 513 27, 41

Roche vy. Evaporated Milk Association, 319

U.S, 21 26, 41, 42

Speed v, United States, 518 F. 2d 75, cer-

tiorari denied sub nom. Camp v. United

States, 423 U.S. 988 37

Stack v. Boyle, 342 U.S. 1 29, 34

Strunk v. United States, 421 U.S. 434 39

United States vy. Avalos, 541 F.2d 1100 44-45

United States v. Bailey, 512 F. 2d 833,

certiorari dismissed, 423 U.S. 1039 24

United States v. Baumgarten, 517 F. 2d

1020, certiorari denied, 423 U.S. 878 36

United Staves vy. Bishton, 463 F. 2d 877 53

United States v. Calandra, 414 U.S, 338 41

United States vy. Cerilli, C.A. 3, No, 77-

1200, decided July 15, 1977 24

United States vy. Crow Dog, 582 F. 2d

1182, certiorari denied, No. 75-1843,

March 21, 1977 36

United States v. Cunningham, 30 C.M.R.

402 a 52

Cases—Continued Page

United States v. Ewell, 383 U.S. 116 32, 44, 46,

58, 70

United States v. Flores, 501 F. 2d 1356_ 54

United States v. Gavic, 520 F. 2d 1346 36

Unitod States v. Graham, 538 F. 2d 261,

certiorari denied, 429 U.S. 935 | 36, 59

United States v. Jackson, 542 F.2d 403 36, 59

United States v. Jones, 524 F. 2d 834 36

United States v. Lansdown, 460 F. 2d

164... mn 14, 24

United States v. Lovasco, No. 75-1844, de-

cided June 9, 1977 ___ 21, 43, 50, 60, 61, 63, 64,

66, 69, 70

United States vy. Mann, 451 F. 2d 346 37

United States v. Marion, 404 U.S. 307 passim

United States v. Martin, 543 F. 2d 577,

certiorari denied, 429 U.S. 1050 53

United States v. O’Donnell, 539 F. 2d

1233, certiorari denied, 429 U.S. 960 37

United States v. Roberts, 548 F. 2d 665,

certiorari denied, No. 76-6299, May 23,

1977 34

United States v. Saglimbene, 471 F. 2d 16,

certiorari denied, 411 U.S. 966 59

United States v. Samuels, 27 C.M.R. 280 52

United States v. Stoker, 522 F. 2d 576 54

Constitution, statutes and rule:

United States Constitution:

Fifth Amendment 43, 49, 63

Sixth Amendment passim

Speedy Trial Act of 1974, 18 U.S.C.

(Supp. V) 3161 et seq. 23, 61

18 U.S.C. (Supp. V) 3161(b) Ss 61

Constitution, statutes and rule—Continued Page

18 U.S.C. (Supp. V) 3161(c) - z 61

18 U.S.C. (Supp. V) 3161(d) 61

18 U.S.C. (Supp. V) 3161 (h) (6) . 23, 62

Uniform Code of Military Justice, 10

U.S.C. 801 et seq.:

Article 30, 10 U.S.C. 830... )

Article 32, 10 U.S.C. 830 9, 52

Article 118, 10 U.S.C. 918 10

AIRE TA SS. is 3

ff ff See 70

28 U.S.C. 1291... . 2, 17, 25, 27, 28, 47

Rule 5.1, Federal Rules of Criminal Pro-

Ee STD SR By AP ode da 52

Miscellaneous:

American Bar Association, Standards Re-

lating to Speedy Trial (Approved Draft

1968 ) 62

Manual for Courts-Martial, United States

(Rev. ed. 1969) 11, 52

S. Rep. No. 93-1021, 93d sheet “2d Sess.

(1974) canidsbaeenana haa 61, 62

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 75-1892

UNITED STATES OF AMERICA, PETITIONER

JEFFREY ?. MACDONALD

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

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 denying the government’s petition for re-

hearing with suggestion for rehearing en banc (Pet.

App. A) is unreported. The opinion and order of

the district court denying respondent’s motion to dis-

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

(1)

JURISDICTION

The judgment of the court of appeals was entered

on January 23, 1976, and a petition for rehearing

with suggestion for rehearing en banc was denied

on April 30, 1976. On May 26, 1976, the Chief Jus-

tice extended the time for filing a petition for a

writ of certiorari to and including June 29, 1976.

The petition was filed on that date and was granted

on June 20, 1977 (A. 215). The jurisdiction of this

Court rests upon 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether a pretrial order declining to dismiss

an indictment on speedy trial grounds may be ap-

pealed by the defendant prior to trial.

2. Whether the period after criminal charges

against a defendant have been dismissed but before

the same or related charges are reinstituted against

him should be considered in determining whether the

defendant has been deprived of his Sixth Amendment

right to a speedy trial.

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The Sixth Amendment to ihe United States Con-

stitution provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial * * *.

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

The courts of appeals shall have jurisdiction

of appeals from all final decisions of the district

courts of the United States * * *.

STATEMENT

Respondent was charged with the first-degree mur-

ders of his wife and two daughters, in violation of

18 U.S.C. 1111, in an indictment returned on Jan-

uary 24, 1975, by a grand jury of the United States

District Court for the Eastern District of North

Carolina. On July 28, 1975, the district court denied

respondent’s motions to suppress evidence and to dis-

miss the indictment (Pet. App. 44a-50a). Respond-

ent appealed, and the government moved to dismiss

the appeal for lack of jurisdiction. On August 15,

1975 (three days before trial was scheduled to be-

gin), the court of appeals entered an order permit-

ting the appeal and staying respondent’s trial (id.

at 42a-43a). On January 23, 1976, the court of ap-

peals reversed and remanded with directions to dis-

miss the indictment on the ground that respondent

had been denied his Sixth Amendment right to a

speedy trial (id. at 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. 146).' Clad only in blue pajama bottoms, re-

spondent informed the police that he and his family

had been attacked by four assailants (G-4, at 1), one

of whom allegedly chanted, “Acid is groovy, kill the

pigs” (A. 185).

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

apartment, observing the bodies and the blood stained

walls and floors (E-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 bath-

mat that was resting on her abdomen (A. 165).

Agent Ivory also observed the word “pig” written

in Colette MacDonald’s blood on the headboard of the

bed in the master bedroom (A. 147; E-21, at 652)’

1 The summarized testimony of the witnesses at the Article

82 hearing convened by the Army to investigate the crimes,

prepared by the investigating officer, appears at A. 113-201.

The verbatim transcripts are referred to as exhibits E-1 to

E-57 in the index to this summary (A. 212-214). References

to the verbatim record rather than to the suramary will be

cited by the pages of the transcript (e.g., E-1, at 5). Govern-

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

exhibits by the letter “D”. These exhibits are indexed at

A. 205-211.

? The word appeared to have been written by fingers incased

in a rubber glove. A finger segment of a latex surgical glove

bearing Colette’s blood was later recovered from a crumpled

sheet in the master bedroom. The second C.1.D. investigation,

completed in June 1972 (see p. 11, infra), revealed that

the finger segment was the same brand as the surgical gloves

stored in the cabinet below the sink in respondent’s kitchen

(A. 165; C.I.D. Report of Investigation No. 71-C.1.D.011-

00015, Vol. I, pp. 61-62, Ex. L-2).

and found in the living room a recent issue of Esquire

magazine, featuring an article on the noterious

Charles Manson murders of a few months earlier (G-

65; G-85; G-100).

As the body of respondent’s wife was being lifted

from the floor of the master bedroom 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.I.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 var-

ious rooms 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 bed-

room; 19 were uncovered from the bedding in which

Kimberly’s body had been wrapped; three were re-

moved from Kristen’s bedding; and two were taken

from a wooden club lying just outside the utility

room door. No threads were found in the living

room, where respondent claimed that he had been

violently attacked and that his pajama top had been

torn (A. 163-166; 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. 160-162). Pathologists de-

termined that although Colette and Kimberly had sus-

tained severe blunt trauma injuries to the head be-

fore death, all of the victims had died from multiple

deep penetrating stab wounds.’ It was also deter-

mined that respondent and each of the victims had

a different blood type, thus facilitating the investi-

gators’ recreation of the murders and of respondent’s

movements through his apartment on the night of

the crimes. Furthermore, C.I.D. agents and labora-

tory technicians engaged in a painstaking analysis

of the crime scene over five continuous days, photo-

graphing, dusting, and collecting all real evidence

found in respondent’s quarters (G-98; D-25; D-26;

D-27).

Respondent was interviewed by several law en-

forcement officers on the morning and afternoon fol-

lowing the murders. He reported that at least four

intruders had entered his home, that the assailants

had encountered him in his living room while he was

asleep on the couch and had struck him with a bludg-

eon, that he had heard his wife and older daughter

screaming 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 pajama top

and had covered his wife’s body with it and with a

Hilton towel (G-76, at 3; G-101, at 4-9).*

‘ Respondent’s wife had suffered 16 elliptical stab wounds

and 21 puncture wounds to the chest (A. 160).

‘An ice pick and a paring knife, which had been used to

inflict many of the victims’ wounds, were recovered from

the back yard of the house; there were no fingerprints on

either weapon (G-7, at 15). Subsequent analysis showed that

a towel had been used to wipe those instruments and that

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 re-

spondent’s version of the attack and of his actions

after regaining consciousness were inconsistent with

the preliminary laboratory analysis of the physical

evidence. For example, although respondent alleged

that he had been stabbed in the right che:., and al-

though he had in fact suffered an incision and a

partially collapsed right lung (A. 155),’ there was

no hole in the right front portion of his pajama top

to correspond to that wound (G-74); although re-

spondent had not sustained any stab wounds to his

back (D-28), more than 30 punctures were visible

on the rear panels of his pajama top (G-19); al-

though 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

Colette and Kimberly MacDonald's blood was on the towel

(G-7, at 6; G.J. Stombaugh 14-17). (“G.J. designates the testi-

mony of the witnesses before the federal grand jury em-

paneled in August 1974 (see p. 12, infra), to which we refer

to document the continuing progress of the investigation.

We have relied only upon those portions of the grand jury

proceedings that have been disclosed to respondent’s counsel.

* The clean incision suffered by respondent was unlike the

multiple, gaping and deeply penetrating knife stab wounds

suffered by his wife and children (D-25 to D-28),

that such splinters were discovered in the bedrooms

(E-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 Kimberly’s

body (G-101, at 7), the garment bore stains of Kim-

berly’s blood (G-7) ; although respondent alleged that

his pajama 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

bedroom (E-21, at 660) with flecks of Colette’s blood

on it (G-7); although respondent alleged that he had

not been wearing his eyeglasses either when as-

saulted or at any other time during the attack on his

family (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; and al-

though respondent alleged that he had first discovered

his wife’s body in the master bedroom, a bare foot

print in Colette’s blood led from Kristen’s room,

where other traces of Mrs. MaeDonald’s blood were

found on top of the bed and on an adjacent wall (G-

8, at 4).°

Based on these and other discrepancies in his story

and on additional evidence, respondent was advised

of his rights by military authorities on April 6, 1970,

and was warned that he was a suspect. Later that

day, respondent’s immediate commander, Col. Francis

‘The impression made by the foot matched the dimensions

of respondent's left foot (G-8, at 7).

B. Kane, Jr., relieved respondent of his medical duties

and restricted him to the military reservation on con-

dition that he be escorted by another officer when not

in his quarters. Several weeks thereafter, on May 1,

1970, Col. Kane formally preferred criminal charges

against respondent, 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 Uniform Code of

Military Justice, 10 U.S.C. 882,’ an Investigating

' Article 32, U.C.M.J., 10 U.S.C, 882, provides:

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

general court-martial for trial until a thorough and

impartial investigation of all the matters set forth therein

has been made. This investigation shall include inquiry

as to the truth of the matter set forth in the charges,

consideration of the form of charges, and a recommenda-

tion 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 investiga-

tion by counsel. Upon his own request he shall be repre-

sented 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 shall 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 défense or mitigation, and the

investigating officer shall examine available witnesses

requested by the accused. If the charges are forwarded

after the investigation, they shali 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.

offense has been conducted before the accused is charged

Officer, Col. Warren V. Rock, was appointed to in-

vestigate the matter and to recommend whether the

charges (three specifications of murder, in violation

of Article 118 of the U.C.M.J., 10 U.S.C. 918) should

be referred by the General Court-Martial Convening

Authority (the post commander) to a general court-

martial for trial. At the hearing held pursuant to

Article 32, the government presented 27 witnesses

and respondent 29, the majority of whom were char-

acter witnesses. Respondent also testified, repeating

his previous recollection of the events surrounding the

murders (Pet. App. 7a-8a; A. 183-190).

At the conclusion of the Article 32 proceeding, Col.

Rock filed a report recommending that the charges

against respondent be dismissed but that further in-

vestigation of the crime be undertaken by the ap-

propriate civilian authorities (Pet. App. 8a). This

recommendation was forwarded to Maj. Gen. Ed-

ward M. Flanagan Jr., Commanding General of the

unit to which respondent was assigned, who, on Oc-

with the offense, and if the accused was present at the

investigation and afforded the opportunities for repre-

sentation, cross-examination, and presentation 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 wit-

nesses 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 fol-

low them does not constitute jurisdictional error.

tober 23, 1970, dismissed the charges because of in-

sufficient evidence available to justify their reference

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

Courts-Martial, United States § 33f (Rev. ed. 1969).

In December 1970, the Army granted respondent an

honorable discharge for reasons of hardship.

2. Following respondent’s release from the mili-

tary, the Department of Justice requested the Army

to continue its investigation. During the ensuing

year, the C.I.D. conducted a total of 699 interviews

or reinterviews in 30 states and several foreign

countries (Pet. App. 9a), the vast majority of which

were undertaken for the purpose of locating persons

who may have been the assailants of respondent and

his family (A. 76-77). In addition to following leads

furnished by respondent and others, the C.I.D. en-

gaged in numerous forensic tests, including a com-

prehensive effort to identify all objects found at the

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

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

were recounted in a massive 13-volume report, which

was transmitted to the Department of Justice in June

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

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

requested to investigate other undeveloped or newly-

developed leads. Additional interviews and scientific

tests were then conducted and the results incor-

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

the C.1.D. report recommended not respondent's prosecution

but rather further investigation (C.I.D. Report, supra, at 4,

151-153).

porated into supplemental reports forwarded on No-

vember 9, 1972, and August 30, 1973 (Pet. App.

a).

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.

Therefore, when its new term commenced in August

1974, a grand jury of the United States District

Court for the Eastern District of North Carolina

was empaneled to investigate the murders fully. Dur-

ing the next several months, some 75 witnesses, in-

cluding respondent, were called to testify. At the

same time, the Federal Bureau of Investigation un-

dertook an extensive reinvestigation of the crime,

which included additional interviews and exhumation

of the victims’ remains to obtain hair samples.”

This renewed investigation led to a number of

significant discoveries. It was determined, for ex-

ample, that when respondent’s pajama top was folded

in the same manner in which it had been found on

Colette MacDonald’s body, the puncture holes in the

garment corresponded to the ice pick wounds sus-

tained by her chest (G.J. Stombaugh 27-31). In ad-

dition, the government learned for the first time that

a crumpled and blood-soaked sheet found in the mas-

ter bedroom near Colette’s body bore bloody fabric im-

*The grand jurors also inspected respondent’s quarters at

Fort Bragg, where the murders occurred. These quarters

were seized on February 17, 1970, and have remained sealed

to this day.

pressions of her pajamas, suggesting that she had

been carried while wrapped in the sheet (id. at 17-

20). The sheet also bore fabric impressions in her

blood left by respondent’s torn pajama top (id. at

19-20). Neither discovery could be reconciled with

respondent’s repeated assertion that he had been

wearing the top of his pajamas throughout the

“hippies’” attack on his wife (A. 185-186; G-101, at

4; G.J. MacDonald Vol. II at 62-63, Vol. III at 18-

20). In sum, the grand jury’s inquiry established

that there was probable cause to believe that respond-

ent 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

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, pre-indictment delay, and denial of a speedy

trial (Pet. App. 44a-50a)."" Relying on United States

v. Marion, 404 U.S. 307, the court concluded (id. at

49a) that “[tjhe right to a speedy trial under the

Sixth Amendment does not arise until a person has

been ‘accused’ of a crime, and in this case this did

not occur until the indictment had been returned.”

‘°On May 30, 1975, the district court also denied respond-

ent’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).

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-trial 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 respond-

ent’s speedy trial claim was a proper subject for in- —

terlocutory review because it involved ‘‘a fundamental

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

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

“be decided without considering the merits of the

charges against [respondent]” (7bid.).”

On the merits, the majority concluded that re-

spondent had been denied his Sixth Amendment right

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

ferral of criminal charges against respondent in May

1970, and the contemporaneous restriction of respond-

ent’s liberties, as “the functional equivalent of a

civilian arrest warrant” (Pet. App. 13a-l4a). It

1 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, pre-

indictment delay, 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).

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 be-

tween respondent’s accusation and his indictment was

of sufficient length to require application of the bal-

ancing analysis outlined in Barker v. Wingo, 407

U.S. 514 (Pet. App. 13a-20a). Although the court

of appeals acknowledged 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 to “indifference, negli-

gence, or ineptitude” (id. at 23a), that respondent

had “consistently expressed 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 “has had to

live with the constant threat of a new prosecution,”

“has been required to retain counsel at his own ex-

pense, and * * * has suffered anxiety concerning the

unresolved nature of the case” (id. at 25a). Finally,

the court stated (without specifying particulars) that

“in the five years since the murders, memories have

faded and witnesses can no longer be expected to

reliably recall details” (ibid.).

Judge Craven dissented. He disputed the court’s

conclusion that respondent had been subjected to the

civilian equivalent of an arrest in May 1970, find-

ing that the Army’s inquiry fell “somewhere between

an unsuccessful presentation to a grand jury and an

arrest and subsequent release because of a failure to

demonstrate 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, since

all military charges against respondent had been dis-

missed in October 1970, and since respondent had

“stood under no ‘public accusation’”’ or other dis-

ability during the four-year period prior to his in-

dictment, the majority’s conclusion that respondent’s

right to a speedy trial continued unabated from May

1970 until the return of the indictment was unsup-

portable (id. at 32a-38a).

Judge Craven viewed respondent’s claim as one of

pre-indictment delay, which he found unpersuasive

in the absence of concrete evidence of actual prejudice

to respondent (Pet. App. 40a-4la). He noted that

it had not been “suggested that any defense witness

who knows the truth now cannot be produced, or if

found, cannot now remember what he once knew”

(id. at 41a) and that, in any event, the question of

whether prejudice may have resulted from the pas-

sage of time between the crime and indictment

“lejertainly * * * need not be anticipated, and could

best be left for determination at trial” (ibid.).”

SUMMARY OF ARGUMENT

The threshold question in this case is whether the

order denying respondent’s motion to dismiss the in-

2 Qn April 30, 1976, the court of appeals denied the gov-

ernment’s petition for rehearing en banc by a 3-3 vote (Pet.

App. 2a).

dictment on speedy trial grounds was appealable be-

fore trial. We submit that it was not.

A. Under the controlling jurisdictional statute, 28

U.S.C. 1291, the courts of appeals may review only

“final decisions” of the district courts, a phrase that

the courts have consistently construed to bar “‘piece-

meal” appeals before final judgment. Indeed, as the

Court recently observed in Abney v. United States,

No. 75-6521, decided June 9, 1977, slip op. 5, quoting

from DiBella v. United States, 369 U.S. 121, 126,

“({a]jdherence to this rule of finality has been par-

ticularly stringent in criminal prosecutions because

‘the delays and disruptions attendant upon inter-

mediate appeal,’ which the rule is designed to avoid,

‘are especially inimical to the effective and fair ad-

ministration of the criminal law.’” The pretrial de-

nial of a defendant’s motion to dismiss an _ indict-

ment on speedy trial grounds is not “final,” since it

does not terminate the criminal proceedings in the

district court; the ruling merely allows the case to

proceed to trial, where a number of other factors

may lead to dismissal of the charges or where, if the

case goes to verdict, the jury may acquit. A speedy

trial violation is simply one reason why there should

be no judgment of conviction.

B. Nor is the pretrial denial of a speedy trial

motion immediately appealable under the “collateral

order” doctrine of Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 545-547. Although the Court

recently applied the “collateral order” doctrine in

Abney to permit appeal prior to trial of the district

court’s rejection of a double jeopardy ciaim, it

stressed that three factors must be met before a de-

parture from the normal rule of finality in crimina!

cases will be tolerated: the district court’s order must

constitute a “complete, formal and final rejection”

of the defendant’s claim, the claim must be wholly

“separable from, and collateral to,” the principal is-

sue at the defendant’s trial, and the claim must in-

volve a right that would be “lost, probably irrepar-

ably,” if appellate review had to await final judg-

ment. Speedy trial claims satisfy none of these re-

quirements.

Unlike a motion to dismiss an indictment on double

jeopardy grounds, which generally raises purely legal

questions fully capable of a final resolution before

trial, the determination of speedy trial claims re-

quires a delicate assessment of a number of factual

issues, the most significant of which is often the

prejudice suffered by the defendant on account of

the delay. These determinations normally are not

possible in advance of trial. Until the government’s

case has been presented and the precise factual al-

legations that the defendant must counter are known,

the district court cannot intelligently decide whether

evidence claimed to have been lost, or witnesses whose

memories have allegedly faded, would have materially

aided the defense. For these reasons the pretrial

denial of a speedy trial motion is always subject to

reconsideration during or after trial and can never

be considered a final rejection of the claim.

Speedy trial claims also implicate matters that are

not wholly separable from the mei.ts of the impend-

ing trial. The thrust of a defendant’s Sixth Amend-

ment contention in the usual case is that the passage

of time has frustrated his ability to establish his

innocence of the crimes charged. Only after the trial

has taken place is this assertion truly meaningful:

not only is an assessment of prejudice more easily

accomplished at that stage, but also, if the jury ac-

quits, it is apparent that the defendant has not been

prejudiced at all.

Finally, and of most importance, there is no justifi-

cation for allowing an exception to the beneficial rule

against piecemeal appeals in criminal cases for speedy

trial claims, because such claims can be fully ad-

judicated after trial. By contrast to the protection

afforded by the Double Jeopardy Clause, the Speedy

Trial Clause does not encompass a “right not to be

tried,” which must be upheld prior to trial if it is

to be enjoyed at all. It is the delay before trial, not

the trial itself, that offends the constitutional guaran-

tee of a speedy trial. Thus, proceeding with the trial

after a defendant’s Sixth Amendment claim has been

rejected by the district court would not cause or com-

pound the deprivation, and the constitutional protec-

tion can be completely vindicated by the reversal of

any conviction procured after a period of unconstitu-

tional delay.

C. Perhaps occasional delay might seem an accept-

able price to pay for ensuring the expeditious resolu-

tion of valid speedy trial claims. Common sense in-

dicates, however, that the district courts properly re-

solve the vast majority of such claims. Hence, the

price for correcting a relatively few errors before

trial would be delay in the overwhelming number of

cases in which defendants have appealed from cor-

rect decisions—and it would be the rare defendant,

interested in postponing his trial for tactical reasons,

who could not fashion a colorable speedy trial argu-

ment. Moreover, some assertions of delay-caused

prejudice to a defendant, validly rejected when first

presented, would become self-fulfilling prophecies as

memories dim or evidence is lost during the period

necessary for review.

This result would seriously frustrate the goal that

the Speedy Trial Clause is designed to achieve—the

prompt disposition of criminal charges—a goal that

is as much designed to foster the interests of society

as to confer protection upon individual defendants.

The prudent course, therefore, is to minimize pretrial

delay by requiring a defendant whose speedy trial

motion has been denied by the district court to proceed

to trial, not to encourage further delay by countenanc-

ing protracted interlocutory appeals.

If the Court concludes that the denial of respond-

ent’s speedy trial motion was properly appealable

prior to trial, then the judgment of the court of

appeals must be reversed on the merits. The Court’s

holding that respondent was denied his Sixth Amend-

ment right to a speedy trial rests on the erroneous

assumption that the protections afforded by the Speedy

Trial Clause continue to run after charges against a

defendant have been dismissed. We submit that an

extension of the Sixth Amendment to the period dur-

ing which an individual is no longer the subject of

public accusation is both unwarranted and unwise.

A. This Court has observed on several occasions

that only “a formal indictment or information or

else the actual restraints imposed by arrest and hold-

ing to answer a criminal charge * * * engage the par-

ticular pyotections” of the Speedy Trial Clause.

United States v. Marion, 404 U.S. 307, 320. See also

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

9, 1977, slip op. 5. This is true because a person who

has been formally accused of a crime has a substan-

tial interest in an expeditious disposition of the

charges.

Inordinate delay between accusation and trial may

prejudice the accused’s ability to mount a successful

defense. Moreover, “[a]rrest is a public act that

may seriously interfere with the defendant’s liberty,

whether he is free on bail or not, and that may dis-

rupt his employment, drain his financial resources,

curtail his associations, subject him to public obloquy,

and create anxiety in him, his family, and his

friends.” United States v. Marion, supra, 404 U.S.

at 320. Once the government has set the criminal

process in motion, with these inevitable consequences,

it assumes a duty, imposed by the Sixth Amendment,

to bring the accused to trial with a minimum of delay.

These considerations have little application to a

period during which no formal criminal charges ex-

ist. While not under arrest or indictment, “a citi-

zen suffers no restraints on his liberty and is not the

subject of public accusation: his situation does not

compare with that of a defendant who has been ar-

rested and held to answer.” United States v. Marion,

supra, 404 U.S. at 321. Moreover, the government

obviously cannot be required to dispose swiftly of

criminal charges against an individual when no such

charges are outstanding. For this reason the Court

declined in Marion to apply the Speedy Trial Clause

to the period before formal accusation. It is the

logical corollary of this conclusion that the protections

of the Clause are equally inapplicable after criminal

charges have been formally dismissed. At that point

the individual no longer stands officially accused of

wrongdoing, his liberty is in no way restricted, and

there are no pending charges on which a speedy trial

could be held.

B. The court of appeals’ construction of the Speedy

Trial Clause also would have significant adverse ef-

fects on the administration of the criminal law. It

is not uncommon for charges to be dropped after

arrest or indictment as a matter of prosecutorial

discretion, either because the evidence at that stage

may not be sufficient to establish guilt beyond a rea-

sonable doubt or because of non-evidentiary considera-

tions properly a part of the decision to prosecute.

Such dismissals are beneficial to all concerned: the

defendant is spared the emotional and financial cost

of a trial, with its risk of conviction, while the gov-

ernment, the courts, and society in general are saved

the expense associated with an unnecessary or un-

wise utilization of the criminal justice system.

The incentive to follow this sound course would be

substantially diminished if, by declining to prosecute

a defendant once his speedy trial rights had been

triggered by arrest or indictment, the government

might forfeit its ability ever to bring the accused to

trial. Congress has recognized as much in the Speedy

Trial Act of 1974, 18 U.S.C. (Supp. V) 3161 et seq.,

which expressly excludes from the computation of a

defendant’s speedy trial time any period of delay

between the dismissal of an indictment or informa-

tion by the government and the filing of a new charge

against the accused for the same offense. 18 U.S.C.

(Supp. V) 3161(h)(6). This rule advances the in-

terests protected by the Speedy Trial Clause and, in

our view, reflects the proper interpretation of the

constitutional provision.

ARGUMENT

I, A PRETRIAL ORDER DENYING A DEFENDANT'S

MOTION TO DISMISS AN INDICTMENT ON

SPEEDY TRIAL GROUNDS IS NOT APPEALABLE

BEFORE TRIAL

A. Introduction

The decision of the court of appeals to review re-

spondent’s speedy trial claim prior to trial is un-

precedented. We are aware of only two other fed-

eral cases in which a defendant has sought pre-

trial appellate review of an order denying his mo-

tion to dismiss the indictment because of an alleged

violation of the Sixth Amendment right to a speedy

trial, and in both instances the court of appeals

held that it lacked jurisdiction to consider the claim

prior to conviction. See United States v. Bailey, 512

F. 2d 833 (C.A. 5), certiorari dismissed, 423 U.S.

1039; Kyle v. United States, 211 F. 2d 912 (C.A.

9).

The court below offered two grounds to justify its

assumption of jurisdiction. First, it observed that

respondent also challenged the district court’s denial

of his motion to dismiss the indictment on double

jeopardy grounds, a matter the court had previously

held to be a proper subject for interlocutory appellate

review (see United States v. Lansdown, 460 F. 2d

164 (C.A. 4)), and that respondent’s Sixth Amend-

ment claim was “pendent” and “closely related”

to the double jeopardy claim (Pet. App. 5a). But

this rationale is vitiated by Abney v. United States,

No. 75-6521, decided June 9, 1977, slip op. 11, which

expressly held that the courts of appeals are with-

out “pendent jurisdiction” over otherwise nonap-

pealable claims even though they may be joined with

a double jeopardy claim over which the courts of

appeals do have interlocutory appellate jurisdiction.

See also United States vy. Cerilli, C.A. 3, No. 77-1200,

decided July 15, 1977, slip op. 5-6."

‘The court of appeals’ reliance on a theory of “pendent

jurisdiction” is particularly difficult to accept in view of its

failure to decide respondent’s double jeopardy claim (Pet.

App. 28a).

Alternatively, although conceding that “[n]Jot

every speedy trial claim * * * merits an interlocu-

tory appeal” (Pet. App. 5a), the court of appeals

believed that it could review the Sixth Amendment

contention in this case because of its “extraordinary

nature,” in order to spare the district court and the

parties “the burdens * * * of a prolonged, expensive

trial * * *” (id. at 5a, 6a). This contention also is

unpersuasive, however, because “[a]ppeal rights

cannot depend on the facts of a particular case.”

Carroll v. United States, 354 U.S. 394, 405. The

factual circumstances that underlie a speedy trial

claim, however “extraordinary,” cannot establish its

independent appealability prior to trial. Under the

controlling jurisdictional statute, 28 U.S.C. 1291, the

courts of appeals have the power to review only “final

decisions,” a concept Congress defined “in terms of

categories” (354 U.S. at 405).

Thus, whether the order rejecting respondent’s mo-

tion to dismiss his indictment on speedy trial

grounds is an appealable “final decision” depends up-

on whether such orders, “in the generality of cases”

(Carroll vy, United States, supra, 354 U.S. at 405),

fall within that well-defined and narrowly circum-

scribed category of interlocutory orders for which the

“costs of piecemeal review on the one hand [are

outweighed by] the danger of denying justice by de-

lay on the other.” Eisen vy. Carlisle & Jacquelin, 417

U.S. 156, 171, quoting from Dickinson vy. Petroleum

Conversion Corp., 388 U.S. 507, 511 (footnote omit-

ted).

B. The Denial Of A Motion To Dismiss An Indictment

On Speedy Trial Grounds Is Not A “Final Decision”

This Court has recently reiterated that “there

has been a firm congressional policy against inter-

locutory or ‘piecemeal’ appeals and the courts have

consistently given effect to that policy.” Abney v.

United States, supra, slip op. 5."* Indeed, the Court

noted, “[{a]dherence to this rule of finality has been

particularly stringent in criminal prosecutions be-

cause ‘the delays and disruptions attendant upon in-

termediate appeal,’ which the rule is designed to

avoid, ‘are especially inimical to the effective and

fair administration of the criminal law.’” Jbid.,

quoting from DiBella vy. United States, 369 U.S. 121,

126. See also Cobbledick v, United States, 309 U.S.

323, 324-326.

This Court has accordingly declined to permit in-

terlocutory appeals from orders denying motions to

suppress evidence (Cogen v. United States, 278 U.S.

221), rejecting claims of statutory immunity from

prosecution (Heike v. United States, 217 U.S. 423),

and refusing to dismiss an indictment for failure to

state an offense (Abney v. United States, supra, slip

op. 11) or for lack of jurisdiction (Roche v. Evap-

orated Milk Association, 319 U.S. 21). In each in-

stance the Court stressed the absence of the statutory

'*We have previously discussed the substantial historical

underpinnings of this policy against interlocutory review in

criminal cases (see pp. 19-37 of the government's brief in

Abney V. United States (No. 75-6521), a copy of which we

are providing to respondent), and we accordingly will not re-

peat this material here.

requirement of a “final decision” (28 U.S.C. 1291),

which “in a criminal case means sentence.” Berman

v. United States, 302 U.S. 211, 212. See also Parr v.

United States, 351 U.S. 513, 518. These same con-

siderations govern here. The pretrial denial of a de-

fendant’s motion to dismiss an indictment on speedy

trial grounds obviously is not “final,” since it does

not terminate the criminal proceedings in the district

court; the ruling merely allows the case to proceed

to trial, where a number of other factors may lead

to a dismissal of the charges, or where, if the case

goes to verdict, the jury may acquit. A speedy trial

violation is merely one reason why there should be

no judgment of conviction.

C, Pretrial Decisions Rejecting Speedy Tria! Claims

Are Not Within The “Collateral Order” Exception

To The Final Judgment Rule

This Court has twice departed in criminal cases

from the general prohibition against piecemeal ap-

pellate review, invoking on both occasions the so-

called “collateral order” exception to the final judg-

ment rule, first announced in Cohen v. Beneficial

Industrial woan Corp., 337 U.S. 541, 545-547. Cohen

was a stockholder’s derivative action brought in fed-

eral court because of diversity of citizenship. Before

trial the question arose whether a state statute re-

quiring the plaintiff to post security applied in fed-

eral court. The district court thought not, and the

defendants immediately appealed; the court of ap-

peals reversed and ordered the posting of security.

This Court concluded that the court of appeals had

properly assumed jurisdiction to review the trial

judge’s ruling.

The Court began by reaffirming the settled prin-

ciple that there can be no appeal before trial, “even

from fully consummated decisions, where they are

but steps towards final judgment in which they will

merge. The purpose is to combine in one review all

stages of the proceeding that effectively may be re-

viewed and corrected if and when final judgment

results” (337 U.S. at 546). It concluded, however,

that an order to post security was a “final decision”

within the meaning of 28 U.S.C. 1291.

First, the district court’s order had fully dis-

posed of the question of the applicability of the state

security requirement in federal court; in no way had

the trial judge’s ruling left the matter “open, un-

finished or inconclusive” (337 U.S. at 546). Second,

the decision was not simply a “step toward final dis-

position of the merits of the case [which would] be

merged in final judgment” (ibid.); to the contrary,

the order had nothing to do with the substantive is-

sues in the litigation and could not have been re-

viewed on appeal after trial. Finally, the decision

involved an important right that would be “lost,

probably irreparably” (ibid.), if review had to await

final judgment; appellate review, to be effective, had

to be immediate. In sum, the Court determined that

the security order fell “in that small class which

finally determine claims of right separable from, and

collateral to, rights asserted in the action, too im-

portant to be denied review and too independent of

the cause itself to require that appellate considera-

tion be deferred until the whole case is adjudicated”’

(ibid.). |

Two years after its decision in Cohen, the Court

applied the “collateral order” doctrine in a criminal

proceeding, holding that an order denying a motion

to reduce bail could be reviewed prior to trial. Stack

v. Boyle, 342 U.S. 1. Concurring in the decision, Mr.

Justice Jackson explained that, like the question of

posting security in Cohen, “an order fixing bail can

be reviewed without halting the main trial—its is-

sues are entirely independent of the issues to be

tried—and unless it can be reviewed before sentence,

it never can be reviewed at all” (id. at 12). And

again last Term, the Court held that the “collateral

order” doctrine permits interlocutory appeal of or-

ders denying a pretrial motion to dismiss an indict-

ment on double jeopardy grounds. Abney v. United

States, supra, slip op. 7. Such orders, said the Court,

“constitute a complete, formal and, in the trial court,

a final rejection of a criminal defendant’s double

jeopardy claim. There are simply no further steps

that can be taken in the District Court to avoid the

trial the defendant maintains is barred by the Fifth

Amendment’s guarantee” (ibid.). Moreover, “the

very nature of a double jeopardy claim is such that

it is collateral to, and separable from, the principal

issue at the accused’s impending criminal trial, i.e.,

whether or not the accused is guilty of the offense

charged” (id. at 8). And perhaps most important,

“the rights conferred on a criminal accused by the

Double Jeopardy Clause would be significantly un-

dermined if appellate review of double jeopardy

claims were postponed until after conviction and sen-

tence” (id. at 9). Although the protection against

being twice convicted for the same crime could “be

fully vindicated on an appeal following final judg-

ment,” the Court explained, the Double Jeopardy

Clause also “protects an individual against more than

being subject to double punishments. It is a guaran-

tee against being twice put to trial for the same

offense” (ibid.):

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, has his conviction

ultimately reversed on double jeopardy grounds,

he has still been forced to endure a trial that

the Double Jeopardy Clause was designed to pro-

hibit. Consequently, if a criminal defendant is

to avoid exposure to double jeopardy and there-

by enjoy the full protection of the clause, his

double jeopardy challenge to the indictment must

be reviewable before that subsequent exposure

occurs. [/d. at 10.]

Like the denial of a motion to dismiss an indict-

ment on double jeopardy grounds, a pretrial order

rejecting a defendant’s speedy trial claim plainly

“lacks the finality traditionally considered indispens-

able to appellate review” (Abney v. United States,

supra, slip op. 7). Hence, if such orders may be ap-

pealed prior to trial, it must be because they satisfy

the restrictive qualifications identified in Cohen and

Abney as sufficient to justify dispensing with the

normal rules against piecemeal review before final

judgment. As we now show, application of the vari-

ous factors underlying the “collateral order” doctrine

convincingly demonstrates that speedy trial conten-

tions are not within that “small class” of claims

that are wholly distinct and separable from the main

action and that must be determined immediately if

there is to be meaningful appellate review.

1. Pretrial denial of a speedy trial motion does not

constitute a “complete, formal and final rejec-

tion” of the claim in the district court

The threshold requirement for application of the

“collateral order” doctrine is “a fully consummated

decision” in the district court. Abney v. United

States, supra, slip op. 7. The Court found this re-

quirement satisfied in the case of a double jeopardy

claim because such a claim generally raises purely

legal questions that are capable of a definitive reso-

lution without awaiting introduction of the evidence

at trial; in addition, once the claim is rejected,

“T[t]here are simply no further steps that can be

taken in the District Court to avoid the trial the de-

fendant maintains is barred by the Fifth Amend-

ment’s guarantee.” Ibid.

The same cannot be said of the denial of a pretrial

motion to dismiss an indictment on speedy trial

grounds. Speedy trial issues necessarily depend for

their resolution upon a delicate assessment of the

particular facts of each case. They therefore are ordi-

narily best considered in the context of the entire

proceeding. Events at trial may demonstrate that a

speedy trial claim, although initially denied, has sub-

stantial merit and should be reconsidered prior to or

after verdict.

In Barker v. Wingo, 407 U.S. 514, the Court listed

four factors that must be weighed in determining

whether an accused has been deprived of his Sixth

Amendment right to a speedy trial: the length of the

delay, the reason for the delay, whether the defendant

has asserted his right, and the prejudice to the de-

fendant from the delay. Jd. at 530. Of the kinds of

prejudice that the speedy trial guarantee is designed

to prevent—lengthy and oppressive pretrial incarcera-

tion, the anxiety and disruption of personal affairs

caused by public accusation of c*minal wrongdoing,

and the possible impairment of the ability to present

an effective defense at trial—‘‘the most serious is the

last, because the inability of a defendant adequately

to prepare his case skews the fairness of the entire

system.” Jd. at 532.

Before trial, an appraisal of the degree to which

post-accusation delay may have impaired defense

capabilities often is extremely speculative. See United

States v. Ewell, 383 U.S. 116, 122. Until the govern-

ment’s case has been presented and the precise evi-

dence that the defendant must counter is known, the

district court cannot intelligently determine whether

evidence claimed to have been lost as a result of the

delay would have materially aided the defense. Evi-

dence that appears vital prior to trial may assume

diminished importance as the events at trial unfold;

conversely, evidence whose value is debatable in ad-

vance of trial may become critical in light of the

government’s contentions. Prejudice once thought ir-

reparable may also disappear if the evidence available

to the defense, despite any trial delay that has oc-

curred, is nonetheless sufficient to persuade the jury

that the government has not proven the defendant’s

guilt beyond a reasonable doubt. Similar considera-

tions apply to pretrial claims that the passage of time

has dulled the memories of important defense wit-

nesses. Not until the court has had an opportunity to

observe the witness testify under oath at trial can it

reliably conclude whether he in fact is unable to recall

pertinent events and, if so, whether the lack of recall

may fairly be attributed to the delay in commencing

the trial.

In these circumstances, a district court’s refusal in

advance of trial to dismiss an indictment on speedy

trial grounds (except perhaps on the rare occasions

when the other factors in the Barker calculus by them-

selves conclusively establish a constitutional viola-

tion), is always expressly or impliedly premised on

the assumption that it would reconsider its ruling

should the defendant’s claim of prejudice be substan-

tiated by the evidence or should unforeseen instances

18 See, e.g., Moore V. Arizona, 414 U.S. 25, 26.

of prejudice to the defense materialize at trial. See,

e.g., United States v. Roberts, 548 F. 2d 665, 667

(C.A. 6), certiorari denied, No. 76-6299, May 23,

1977. Pretrial denial of a speedy trial claim thus can

never be considered “‘a complete, formal and * * *

final rejection” of the defendant’s contention by the

trial court; because of the unique nature of such

claims, the matters preliminarily litigated in the mo-

tion to dismiss necessarily remain “open, unfinished

[and] inconclusive” until the prosecution has run its

course. Cohen v. Beneficial Industrial Loan Corp.,

supra, 337 U.S. at 546.”

2. Speedy trial claims do not implicate matters

wholly “separable from, and collateral to,” the

principal issue at the defendant's trial

Closely tied to the “threshold requirement of a fully

consummated decision” is the requirement that the

issue sought to be litigated on appeal before trial be

divorced frum the main cause of action. For example,

the bail reduction order in Stack v. Boyle, supra, was

wholly unrelated to the validity of the criminal

charges pending against the defendant. So, too, was

the double jeopardy claim in Abney, which was “com-

pletely independent of [the defendants’] guilt or inno-

See DiBella v. United States, supra, 369 U.S. at 129, hold-

ing that an order granting or denying a pretrial motion to

suppress evidence allegedly procured through an illegal search

and seizure was not immediately appealable, because “the

legality of the search too often cannot truly be determined

until the evidence at the trial has brought all circumstances to

light.”

cence” (slip op. 8). As we have previously explained,

however, the question of prejudice to the conduct of

the defense, which is so often central to an assessment

of a speedy trial claim, is inextricably bound to, and

therefore cannot properly be considered in isolation

from, the events at trial.

This Court’s insistence that interlocutory appellate

review be confined to claims that are “separable from,

and collateral to,” the matters to be resolved at trial

serves the important purposes of avoiding piecemeal

appeals or unnecessary appellate consideration of is-

sues that may be merged in, or mooted by, the final

judgment. Pretrial review of speedy trial claims

would frustrate both goals.

A district court’s rejection prior to trial of a mo-

i. . to dismiss an indictment on speedy trial grounds

is ordinarily not a “fully consummated decision,” be-

cause the denial is, as noted above, always subject to

reconsideration if (as is frequently the case) the evi-

dence at trial permits a more informed judgment to

be made. An appellate court obviously would be in

no better position than the district court to determine

before trial whether delay has materially harmed the

defendant.” Moreover, because the absence of con-

1” Thus, in assessing respondent’s Sixth Amendment argu-

ments in the absence of a trial record, the court of appeals

was forced to speculate in a vacuum about the “potential

memory loss” attributable to the delay, which it regarded

(for reasons that, at a trial, might have proven frivolous) as

“critical” to respondent’s defense (Pet. App. 26a).

The importance of events at trial to allegations on appeal of

unconstitutional pretrial delay is demonstrated by the fre-

crete proof of prejudice prior to trial should lead

with few exceptions to an affirmance of the district

court’s denial of the dismissal motion, the courts of

appeals would often be faced with the identical Sixth

Amendment claim (albeit with a more detailed factual

predicate) on appeal from a resulting conviction.

Hence, allowance of interlocutory review in this situa-

tion, rather than facilitating a determination, once

and for all, of legal issues thought too important and

distinct to await the termination of the trial, would

spawn duplicative litigation.

Even if the element of prejudice could be reliably

determined in advance of trial in all cases, speedy

trial claims would nevertheless not be sufficiently in-

dependent of the outcome of the trial itself to war-

rant pretrial appellate review, because such claims,

if meritorious, would be vindicated by an acquittal

resulting from the prosecution’s failure to carry its

burden of proof. This Court was persuaded that the

double jeopardy motion in Abney was separable from

the issues at trial because “[t]he elements of thav

quency with which this Court and the courts of appeals have

relied on the trial record to decide such claims. See, e.g.,

Barker v. Wingo, supra, 407 U.S. at 534; United States Vv.

Jackson, 542 F.2d 408, 409 (C.A. 7); United States v. Graham,

538 F.2d 261, 265 (C.A. 9), certiorari denied, 429 U.S. 925;

United States v. Crow Dog, 582 F.2d 1182, 1193-1194 (C.A.

8), certiorari denied, No. 75-1843, March 21, 1977; United

States v. Jones, 524 F.2d 834, 852 (C.A.D.C.); United States

v. Gavic, 520 F.2d 1346, 1849 (C.A. 8); United States Vv.

Baumgarten, 517 F.2d 1020, 1025 (C.A. 8), certiorari denied,

423 U.S. 878; Morris v. Wyrick, 516 F.2d 1387, 1391 (C.A.

8), certiorari denied, 423 U.S. 925.

ye et ater ees © 2

claim are completely independent of [an accused’s]

guilt or innocence” (slip op. 8). And so they were,

since an acquittal would not have eliminated the de-

fendant’s grievance. By contrast, a principal, if not

the predominant, interest served by the Speedy Trial

Clause is the protection of the integrity of the fact-

finding process at trial; the thrust of a defendant’s

Sixth Amendment claim in the usual case is that the

passage of time has frustrated his ability to estab-

lish his innocence of the crimes charged.“

Only after the trial has taken place is that conten-

tion truly meaningful: if the defendant is acquitted,

the claim is extinguished; if he is found guilty, the

claim merges into the final judgment, can adequately

be reviewed on appeal from the conviction, and (as we

show below) can be fully satisfied by a reversal.

In neither case can the claim be considered wholly

** The courts have recognized this important distinction

between double jeopardy and speedy trial claims in the dis-

parate treatment accorded the contention that such claims

are waived by a plea of guilty. While a guilty plea does not

preclude subsequent assertion on appeal of a double jeopardy

claim (Menna v. New York, 423 U.S. 61), since that claim is

“not logically inconsistent with the valid establishment of

factual guilt and * * * stand[s] in the way of conviction,

[even] if factual guilt is validly established” (id. at 63, n. 2),

it has been held that a defendant’s formal admission of guilt

waives defects such as the denial of a speedy trial. See, e.g.,

United States v. O’ Donnell, 589 F.2d 1233, 1236-1237 (C.A. 9),

certiorari denied, 429 U.S. 960; 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

yy (C.A. 5); United States v. Mann, 451 F.2d 346, 347

(C.A. 2).

separate and distinct from the main cause of action

in the sense that it will not “affect, or * * * be af-

fected by, decision of the merits of [the] case.” Cohen

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

at 546. Rather, “it goes to the very heart of the

issues to be resolved at the upcoming trial.” Abney

v. United States, supra, slip op. 12.

3. Speedy trial claims do not involve a right that

would be “lost, probably irreparably,” if review

had to await final judgment

Even if a district court order constitutes a “fully

consummated decision” on an issue that is “separ-

able from, and collateral to” the main cause of ac-

tion, pretrial appellate review is inappropriate unless

the ruling involves “an important right which would

be ‘lost, probably irreparably,’ if review had to await

final judgment * * *.” Abney v. United States, supra,

slip op. 7. In the absence of such extraordinary cir-

cumstances, there is no justification for countenanc-

ing a breach of the beneficial rule against interlocu-

tory appeals in criminal cases, with the substantial

systemic costs that disregard of the rule inevitably

entails. The double jeopardy claim in Abney satisfied

this essential condition, because that constitutional

guarantee “assures an individual that, among other

things, he will not be forced, with certain exceptions,

to endure the personal strain, public embarrassment,

and expense of a criminal trial more than once for

the same offense” (id. at 9-10). Therefore, “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 indict-

ment must be reviewable before that subsequent ex-

posure occurs” (id. at 10; emphasis in original).

Loss or impairment of the right to a speedy trial,

on the other hand, can never be attributable to the

unavailability of pretrial appellate review of the

claim. Unlike the protection afforded by the Double

Jeopardy Clause, the Speedy Trial Clause does not

encompass a “right not to be tried,” which must be

upheld prior to trial if it is to be enjoyed at all. It is

the delay before trial, not the trial itself, that offends

against the constitutional guarantee of a speedy trial.

If the pertinent factors coalesce to deprive an ac-

cused of his right to a speedy trial, that loss has

occurred before the claim is aired in any tribunal.

While it may not be possible to identify with pre-

cision at what point the loss occurs, by definition

it must occur before trial. Accordingly, proceeding

with the trial would not cause or compound the

deprivation.

Of course, an accused who successfully establishes

a speedy trial claim prior to trial will not be tried.

But this fact does not suggest that the Speedy Trial

Clause embodies a prohibition against the trial itself.

While the Court has held that the remedy for a vio-

lation of a defendant's right to a speedy trial is

dismissal of the charges (Strunk v. United States,

412 U.S. 434, 440), this has been because the damage

from an unconstitutional pretrial delay is irreparable

(and, hence, any trial held after such delay would

be an academic exercise from which no valid con-

viction could result), rather than because proceeding

with the trial would independently infringe rights

protected by the Sixth Amendment. Indeed, the Court

has acknowledged the imprecision of the dismissal

remedy in speedy triai cases, observing that the sanc-

tion is “unsatisfactorily severe” but that “it is the

only possible remedy.” Barker v. Wingo, supra, 407

U.S. at 522. This is often the case. For example,

a defendant who secures a pretrial dismissal because

he was granted immunity from prosecution, his in-

dictment is defective, or the only evidence against

him was seized in violation of the Fourth Amend-

ment, also escapes trial. But it cannot therefore be

said that that defendant enjoys a “right not to be

tried,” which must be safeguarded by interlocutory

appellate review. See Abney v. United States, supra,

slip op. 11; Cogen v. United States, supra, 278 U.S.

at 227; Heike v. United States, supra, 217 U.S. at

430."

By the same token, the effectiveness of appellate

review is not diminished by awaiting the outcome

of the proceedings in the district court. No remedy,

whenever offered, can undo or alleviate the oppres-

sive pretrial incarceration or prolonged period of

anxiety that an accused may have suffered between

1* As we have explained in our brief in Abney (pp. 42-44),

the conclusion that the Speedy Trial Clause creates a “right

not to be tried,” and requires recognition of a concomitant

right to pretrial appellate review to assure that the Sixth

Amendment guarantee is not abridged, would be illimitable,

since numerous other constitutional rights are also enforced

by dismissal of the indictment.

indictment and trial, while the interest in avoiding

conviction based on lost evidence or dimmed memories

can be fully protected by a reversal of any conviction

procured after a period of unconstitutional delay.”

See Abney v. United States, supra, slip op. 9 (the

aspect of “the Double Jeopardy Clause [which] pro-

tects an individual against being twice convicted for

the same crime * * * can be fully vindicated on an

appeal following final judgment’). And as a sanc-

tion to deter government proscrastination in future

cases, the dismissal remedy is effective regardless of

when it is imposed. Thus, precluding immediate re-

view of a rejected speedy trial claim “presents a

question, not of rights, but of remedies.” United

States v. Calandra, 414 U.S. 338, 354.

It is no answer to these significant considerations

to suggest, as did the court below (Pet. App. 6a),

that a pretrial appellate determination of a defend-

ant’s speedy tr‘al claim might eliminate the neces-

sity to hold a time-consuming and expensive trial.

This Court has never regarded the possible avoid-

ance of a needless trial as a sufficient justification

for departure from the final judgment rule. See

Parr v. United States, supra, 351 U.S. at 519-520;

Cobbledick v. United States, supra, 309 U.S. at 325-

326. In Roche v. Evaporated Miik Association, 319

U.S. 21, for example, the defendants in a criminal

*° Indeed, appellate consideration of speedy trial questions

prior to trial, rather than securing the interests protected

by the Sixth Amendment guarantee, is far more likely to

undermine those interests. See pp. 42-47, infra.

antitrust case pleaded that the district court lacked

jurisdiction and that they were immune from prosecu-

tion. When the court rejected the plea, the defend-

ants sought mandamus. This Court conceded that

there may be enormous costs in taking part in a

trial that never should occur, but it held that in-

terlocutory review nonetheless was not allowed by

statute (319 U.S. at 30):

Respondents stress the inconvenience of requir-

ing them to undergo a trial in advance of an

appellate determination of the challenge now

made to the validity of the indictment. We may

assume, as they allege, that that trial may be

of several months’ duration and may be corres-

pondingly costly and inconvenient. But that in-

convenience is one which we must take it Con-

gress contemplated in providing that only final

judgments should be reviewable.

What is more, the court of appeals’ rationale for

permitting pretrial appeals obviously could not logi-

cally be limited to speedy trial claims, but would en-

compass any other motion to dismiss an indictment

or motion in bar—and would therefore effectively

eviscerate the final judgment rule.

D. Interlocutory Appeals From The Denial Of Speedy

Trial Motions Should Be Especially Disfavored

Because They Would Frustrate Rather Than Pro-

mote The Values Reflected In The Speedy Trial

Clause

Our discussion to this point has shown that, apply-

ing the principles enunciated in Cohen and Abney, the

denial of a motion to dismiss an indictment on speedy

trial grounds is nut a “collateral order” that may be

appealed prior to trial." Even were this conclusion

less clear, the important policy considerations that

underlie both the Speedy Trial Clause and the statu-

tory bar to piecemeal appeals in criminal cases

strongly suggest that speedy trial motions are the

least appropriate subject for interlocutory appellate

review.

This Court has recognized that one of the principal

reasons for its strict adherence to the doctrine of

finality in criminal cases is that “[t]he Sixth Amend-

ment guarantees a speedy trial.” DiBella v. United

*1 Although the court of appeals analyzed the delay between

1970, when the crimes in this case were committed and the

military proceedings involving respondent were held, and

January 1975, when respondent was indicted, in terms of

Sixth Amendment principles, in our view the proper inquiry is

one of due process under the Fifth Amendment. See pp.

63-70, infra. Proper designation of the claim, however, does

not alter the appealability analysis. As the Court recently

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

9, 1977, slip op. 6, proof of actual prejudice is essential to

a claim that pre-indictment delay has resulted in a deprivation

of due process. Hence, motions to dismiss because of pre-

indictment delay, like those based on the denial of a speedy

trial, cannot intelligently be assessed prior to trial, and the

district court’s pretrial rejection of such claims does not meet

Cohen’s “threshold requirement” of a fully consummated de-

cision on a matter wholly independent of the merits of the

case. See, e.g., United States v. Marion, 404 U.S. 307, 326

(“Events of the trial may demonstrate actual prejudice but

at the present time appellees’ due process claims are specula-

tive and premature”). Similarly, claims of pre-indictment

delay would not be “lost, probably irreparably,” if they had to

await their resolution until after completion of the trial.

States, supra, 369 U.S. at 126. The Speedy Trial

Clause fosters the compelling societal interest in the

swift punishment of the guilty and the prompt exon-

eration of the innocent, an interest that would be

severely compromised if every contested legal ques-

tion arising in the course of a criminal proceeding

could be resolved in a separate appeal before trial

of the general issue. Evidence might be lost or memo-

ries might fade during the pendency of the appeal.

Moreover, the period of pretrial incarceration for

those defendants unable to post bail would be pro-

longed, and the anxiety suffered by defendants liv-

ing under a cloud of unresolved public accusation

would be intensified. See Dickey v. Florida, 398 U.S.

30, 37-38; Klopfer v. North Carolina, 386 U.S. 218,

221-226; United States v. Ewell, supra, 383 U.S. at

120.

Although some defendants might willingly risk

these evils in the hope of securing a favorable result

in the court of appeals, the Speedy Trial Clause “is

generically different from any of the other rights en-

shrined in the Constitution” because it is as much

designed to foster the interests of society in the expe-

ditious disposition of pending criminal charges as to

confer protection upon individual defendants. Barker

v. Wingo, supra, 407 U.S. at 519-522. Indeed, the

“societal interest in providing a speedy trial” exists

not only separate from, but also “at times in opposi-

tion to, the interests of the accused.” Jd. at 519.

Delay may prejudice the prosecution’s ability to

prove its case (see United States v. Avalos, 541 F. 2d

1100, 1110 (C.A. 5)), it increases the cost to society

of maintaining those defendants subject to pretrial

detention, and it prolongs the period during which

defendants released on bail may commit other crimes.

See Dickey v. Florida, supra, 398 U.S. at 42 (Bren-

nan, J., concurring). Excessive delay between accusa-

tion and conviction also undermines the efficacy of

punishment as a deterrent to future crimes, threatens

the chance for rehabilitation, and, in general, breeds

widespread disrespect for the criminal justice system.

Barker v. Wingo, supra, 407 U.S. at 519-521. In sum,

delay—whatever its source—is inimical to the proper

functioning of the criminal law; the Speedy Trial

Clause guards both society and the accused against

unjustified delays, and the final judgment rule is one

of the principal mechanisms by which this speedy

trial guarantee is enforced.

It would be ironic indeed if an exception to the

strict rule against pretrial appeals in criminal cases

were created for alleged violations of the right to a

speedy trial. Experience suggests that most claims of

unconstitutional pretrial delay will be correctly ad-

judicated in the district court. Some undoubtedly will

not, but the price for ensuring the expeditious appel-

late vindication of a few erroneously rejected claims

would be a lengthy delay in the overwhelming number

of cases in which the defendants have appealed from

proper denials of their Sixth Amendment motions.

Some assertions of delay-caused prejudice between

indictment and trial, validly rejected when first pre-

sented, would become self-fulfilling prophecies as

memories dim or important evidence is lost during

the period necessary for review. And as this Court

has noted (Barker v. Wingo, supra, 407 U.S. at 521),

“Tdjelay is not an uncommon defense tactic,” since

it not only postpones an eventual incarceration in

many instances, but also frequently weakens the gov-

ernment’s case—and it is the government that has

the burden of proof. See United States v. Ewell,

supra, 383 U.S. at 122-123.

There is, in addition, nothing so precise about the

circumstances that will support an alleged abridge-

ment of the speedy trial guarantee as inherently to

limit the availability of the claim. See Barker v.

Wingo, supra, 407 U.S. at 521-522, 530. Unlike a

motion to dismiss on double jeopardy grounds, which

at least requires a plausible showing that the defend-

ant has once before been in jeopardy of federal con-

viction on the same or a related offense, there will in

every case be some period between arrest or indict-

ment and trial, during which time “every defendant

will either be incarcerated * * * or on bail subject to

substantial restrictions on his liberty.” Jd. at 537

(White, J., concurring). “Possible prejudice is in-

herent in any delay, however short * * *.” United

States v. Marion, 404 U.S. 307, 322.

It would be the rare defendant, therefore, who

could not proffer a colorable speedy trial claim and, if

pretrial appellate review of an adverse decision were

permitted, obtain the delay that is often an important

aspect of defense strategy. The inevitable interruption

of proceedings in the district court would, in a large

number of cases, needlessly prevent the prompt dis-

position of criminal charges guaranteed by the Speedy

Trial Clause—a guarantee designed as much to bene-

fit society as the accused. Nothing in the Sixth Amena-

ment or 28 U.S.C. 1291 requires that anomalous re-

sult. The prudent course is to minimize pretrial delay

by requiring a defendant whose speedy trial motion

has been denied by the district court to proceed to

trial, not to encourage further delay by countenancing

protracted interlocutory appeals.”

Il. THE INTERVAL BETWEEN RESPONDENT’S AR-

REST BY THE MILITARY AND HIS SCHEDULED

TRIAL DATE ON THE FEDERAL CHARGES DID

NOT VIOLATE THE SIXTH AMENDMENT OR

WARRANT DISMISSAL OF THE INDICTMENT

If the Court agrees with our submission that appel-

late resolution of respondent’s speedy trial arguments

must await review of the entire case, in the event that

#2 Respondent’s case graphically illustrates the point. Al-

though the district court denied respondent’s motion to dis-

miss in July 1975 and his trial was scheduled to begin on

August 18, 1975, the court of appeals did not decide the

speedy trial claim until January 1976 and did not deny a

petition for rehearing until April of that year. The claim

has yet to be finally resolved, some two years after respond-

ent’s trial wouid have ended but for the delay occasioned

by the interlocutory appeal.

It is also safe to assume that the court below expedited its

consideration of respondent’s appeal because of what it viewed

to be the “extraordinary nature” of this case (Pet. App. 5a).

Presumably that treatment could not be accorded the large

number of mundane speedy trial appeals that would surely

follow from a holding that the courts of appeals have juris-

diction to entertain such claims.

respondent is convicted, the judgment of the court of

appeals should be vacated and the case remanded. If,

however, the Court concludes that the court of ap-

peals had jurisdiction to entertain respondent’s Sixth

Amendment claim, it must then consider whether the

court below properly determined that the pretrial de-

lay in this case warrented dismissal of the indictment.

We submit that the ruling of the court of appeals on

that issue represents a serious misapplication of the

Speedy Trial Clause of the Sixth Amendment.

As the court of appeals acknowledged (Pet. App.

12a), no significant delay, and certainly no delay

approaching constitutional magnitude, occurred in

this case between respondent’s indictment in Jaruary

1975 and the date trial was scheduled to begin, in

August 1975. The court’s holding that respondent

was deprived of a speedy trial therefore plainly rests

on the premise that respondent’s Sixth Amendment

right attached in the spring of 1970, when he was

arrested and his commanding officer preferred crimi-

nal charges against him pursuant to Article 30 of

the Uniform Code of Military Justice, 10 U.S.C. 830

(Pet. App. 13a-17a), and that this right continued

unabated until August 1975, even though the military

charges were completely dismissed and respondent was

released from all restraints on his liberty in October

1970 (id. at 17a-20a).

Hence, the court of appeals reached the incongru-

ous—and unsupportable—conclusion that, in the four-

year period between dismissal of the military proceed-

ings and his federal indictment, respondent was

entitled to insist upon a prompt resolution of the

charges against him, despite the fact that no such

charges were pending during any part of that period.

This result finds support in neither the language

nor the policies underlying the Speedy Trial Clause.

Properly viewed, respondent’s complaint is one of

pre-indictment delay under the Due Process Clause of

the Fifth Amendment. As Judge Craven observed in

dissent, however, and as we elaborate below (see pp.

63-70, infra), dismissal of respondent’s indictment

also cannot be justified on this ground. The delay was

in large part attributable to an intensive and pains-

taking investigation rather than to an attempt to gain

a tactical advantage over the accused, and it did not

result in any demonstrable prejudice to respondent’s

defense.

A. The Speedy Trial Clause Is Inapplicable To The

Period When A Defendant Is Not Under Arrest

Or Other Formal Public Accusation Of A Crime

1. The Sixth Amendment speedy trial guarantee is

designed to ensure the expeditious resolution of

pending criminal charges

criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial * * *.” “On its

face,” as the Court noted in United States v. Marion,

supra, 404 U.S. at 313, “the protection of the Amend-

ment is activated only when a criminal prosecution

has begun and extends only to those persons who have

been ‘accused’ in the course of that prosecution.” The

history of the Speedy Trial Clause, which has been

explored by this Court in the past and needs no exten-

sive rehearsal here, confirms what its clear language

suggests—that the constitutiona. guarantee of a

speedy trial applies only when a criminal prosecution

against an accused is underway. See United States v.

Marion, supra, 404 U.S. at 313-320; Klopfer v. North

Carolina, supra, 386 U.S. at 223-226. It is “either a

formal indictment or information or else the actual

restraints imposed by arrest and holding to answer a

criminal charge that engage the particular protections

of the speedy trial provision of the Sixth Amendment.”

United States v. Marion, supra, 404 U.S. at 320. See

also United States v. Lovasco, No. 75-1844, decided

June 9, 1977, slip op. 5; Dillingham v. United States,

423 U.S. 64.

The rationale for this consistent interpretation of

the Speedy Trial Clause is not difficult to apprehend.

After a person has been formally accused of a crime,

he has a substantial interest in an expeditious dis-

position of the charges. Inordinate delay between

accusation and trial may prejudice the defense, since

exculpatory evidence may be lost, helpful witnesses

may die, or memories may fade. But the defendant’s

concerns generally extend far beyond such specula-

tive considerations to more concrete and immediate

manifestations of harm. “Arrest is a public act

that may seriously interfere with the defendant’s

liberty, whether he is free on bail or not, and that

may disrupt his employment, drain his financial re-

sources, curtail his associations, subject him to pub-

lic obloquy, and create anxiety in him, his family

and his friends.” United States v. Marion, supra, 404

U.S. at 320. Once the government has set the crim-

inal process in motion, with these inevitable conse-

quences, it assumes a duty, imposed by the Sixth

Amendment, to bring the accused to trial with a mini-

mum of delay.

These considerations obviously have little applica-

tion to a period during which no formal criminal

charges exist. Until arrest or indictment occurs, “a

citizen suffers no restraints on his liberty and is not

the subject of public accusation: his situation does

not compare with that of a defendant who has been

arrested and held to answer.” United States v.

Marion, supra, 404 U.S. at 321. And it of course

makes no sense to require the government to dispose

swiftly of criminal charges against an individual

when no such charges are outstanding.

The constitutional guarantee of a speedy trial,

therefore, is not engaged until formal accusation of

a crime. It is the logical corollary of this conclusion

that a defendant’s Sixth Amendment rights also do

not continue after a criminal proceeding has been

terminated. Here, for example, once the military

authorities determined in the fall of 1970 that there

was insufficient evidence to warrant reference of the

charges against respondent to court-martial, any in-

terest protected by the Speedy Trial Clause that he

had in securing a prompt trial on those charges was

extinguished.” Respondent no longer stood officially

*® Before any charge may be referred to court-martial, it

must be subjected to a thorough and impartial investigation

and publicly accused of any crime, nor was his lib-

erty in any way restricted.* Moreover, whatever

stigma attached to the public, official accusation pre-

sumably was eliminated by the equally public, and

equally official, dismissal. Until the grand jury de-

termined four years later, after its reinvestigation

of the case, that there was probable cause to believe

that respondent had committed the murders of his

wife and children, there was no formal accusation

of wrongdoing upon which respondent could have

been tried. In these circumstances, to hold, as did

conducted in accordance with Article 32 of the U.C.M.J., 10

U.S.C. 832. See note 7, supra; Manual for Courts-Martial,

United States § 34 (Rev. ed. 1969). The Article 32 investi-

gation “operates as a discovery proceeding for the accused and

stands as a bulwark against baseless charges”; although “[i]t

is judicial in nature,” it is only “a preliminary proceeding, not

a trial on the merits.” United States v. Samuels, 27 C.M.R.

280, 286. Accord, United States v. Cunningham, 30 C.M.R.

402, 404. See also Humphrey v. Smith, 336 U.S. 695 (discuss-

ing the proceeding mandated by the 70th Article of War, 10

U.S.C. (1940 ed.) 1542, supplanted in 1950 by Article 32).

Its functional counterparts in federal criminal procedure are

the grand jury proceeding (see MacDonald v. Hodson, 42

C.M.R. 184) and the preliminary examination (Rule 5.1, Fed.

R. Crim. P.). As noted in our petition (Pet. 18-19, n. 13),

we have assumed for the purposes of this case that respondent

was arrested in May 1970 and that his Sixth Amendment

rights attached at that point, although Judge Craven’s dissent

casts considerable doubt on this conclusion (Pet. App. 34a-

35a, 38a-40a).

* After dismissal of the charges, respondent was immedi-

ately permitted to resume his duties as a physician with the

rank of captain until his honorable discharge for reasons of

hardship in December 1970. Thereafter, respondent con-

tinued to practice medicine as a private citizen.

the court of appeals, that respondent’s right to a

speedy trial nevertheless continued to run between

October 1970 and January 1975 is “to wrench the

Sixth Amendment from its proper context.” United

States v. Marion, supra, 404 U.S. at 322.

The other courts of appeals that have confronted

this issue have had little trouble in concluding that

the Speedy Trial Clause does not extend to the period

after charges against a defendant have been dis-

missed but before the same or related charges are

reinstituted. In United States v. Bishton, 463 F. 2d

877 (C.A.D.C.), for example, the defendant was re-

indicted after the initial charge against him had been

thrown out on jurisdictional grounds. The District

of Columbia Circuit, relying on Marion, expressly

declined to consider the interval between the dis-

missal of the first indictment and the return of the

second in assessing the defendant’s speedy trial claim,

because “during this time [defendant] was a free

man against whom no prosecution was pending.” Jd.

at 891,

Similarly, in United States v. Martin, 543 F. 2d

577 (C.A. 6), certiorari denied, 429 U.S. 1050, the

defendant had been charged with an offense in Au-

gust 1972, but the charges were dismissed five months

later. Defendant was reindicted in December 1974

for the same criminal activity, and he was tried and

convicted in December 1975. Refusing to consider

the interim between indictments in passing upon the

defendant’s contention that his right to a speedy trial

had been violated, the Sixth Circuit obgerved: “The

Sixth Amendment right to a speedy trial does not

attach until the formal charge, the trial of which is

alleged to have been inordinately and prejudicially

delayed, is made. * * * Because there was no indict-

ment which could have been tried in the period be-

tween January 1973 and December 1974, we cannot

say that a speedy trial was delayed during that time.”

Id. at 579 (citation omitted). The Tenth and Second

Circuits also have expressed these views in rejecting

speedy trial claims in situations analogous to this

case. United States v. Stoker, 522 F. 2d 576, 579-

581 (C.A. 10); United States v. Flores, 501 F. 2d

1356, 1359-1360 (C.A.2).”*

b. Although the court of appeals recognized that

the dismissal of the military charges in October 1970

freed respondent from formal public accusation and

its attendant unfavorable consequences, it neverthe-

less held that respondent’s speedy trial rights con-

2° Flores involved an application of the district court’s

prompt disposition rules, rather than a direct holding on a

constitutional speedy trial claim. 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 the court’s analysis is fully

applicable to an interpretation of the constitutional provision:

“During this period [after charges had been dismissed, de-

fendant] was not subject to any of the disabilities associated

with being under arrest, the subject of a complaint or indict-

ment, or in the midst of a criminal prosecution. He was under

no more jeopardy than any other citizen, and the fact that

he might have been under investigation has no more effec:

after the dismissal on the running of the * * * period [during

which a trial must begin] than it would have had before

his arrest, that is, none.” 501 F.2d at 1359-1360.

tinued “during the interval between the termination

of the Article 32 proceedings and his arrest after

indictment” in January 1975 (Pet. App. 17a). This

was so, the court said, because respondent “realized

that the favorable conclusion of the Article 32 pro-

ceedings was not the end of the government’s ef-

forts to convict him. Prudence obliged him to retain

attorneys at his own expense for his continuing de-

fense. He remained under suspicion and was sub-

jected to the anxiety of the threat of another prose-

cution” (ibid.; footnote omitted).

Respondent’s position prior to his indictment, how-

ever, even assuming the accuracy of the court of

appeals’ description, was no different from that of

any individual who, although not yet arrested or

otherwise formally charged with a crime, is aware

that he is the focus of an ongoing criminal investiga-

tion. The targets of such inquiries inevitably suffer

anxiety at the prospect of prosecution 9: some future

date and are often obliged to hire an attorney to de-

fend their interests. Anxiety and public obloquy, or

the incurrence of expenses attributable to legal diffi-

culties, obviously do not depend upon formal ac-

cusation; an official investigation of wrongdoing that

has not yet culminated in criminal charges may have

a quite similar effect, especially if its progress is

publicized.” But the “particular protections” (United

** Even for publicized targets of criminal investigations,

however, the impact on job, family, friends, and personal

finances is far less severe prior to formal accusation than

after. Rumors that may surface concerning the identity of

States v. Marion, supra, 404 U.S. at 320) of the

Speedy Trial Clause are not engaged by such circum-

stances. Cf. Kirby v. Illinois, 406 U.S. 682, 689-691;

Hoffa v. United States, 385 U.S. 293, 309-310.

This much is settled by the Court’s decision in

United States v. Marion, supra, which involved an

indictment in 1970 for fraudulent business practices

that allegedly occurred from 1965 to 1967. The gov-

ernment’s investigation of the fraudulent scheme,

with its focus on the defendants, had been the sub-

ject of widespread publicity well before the criminal

charges were formally brought: more than three

years in advance of the indictment, a series of news-

paper articles had identified the defendants in con-

nection with the investigation and had revealed that

a prosecution would soon be initiated, and two years

prior to the indictment the defendants had been ask-

ed by the United States Attorney’s Office to submit

business records pertinent to the investigation.

The defendants moved to dismiss the charges, con-

tending that the substantial delay between the al-

leged commission of the crime and the return of the

indictment violated their Sixth Amendment right

to a speedy trial. This Court disagreed. Although

the Court did not deny that a putative defendant may

potential defendants seldom will be as damaging to those

persons as their arrest or indictment, which, because of its

official status, will serve almost inevitably in the minds

of some to transform any preexisting speculation into appar-

ently justified suspicion. Anxiety in the usual case also is

increased immeasurably by formal accusation—with its assur-

ance of a criminal trial and the heightened prospect of con-

viction and punishment.

suffer harmful emotional and financial consequences

by virtue of his status, it concluded that the protec-

tions of the Speedy Trial Clause do not come into play

until those consequences relate to a formal criminal

charge. “Until this event occurs, a citizen suffers no

restraints on his liberty and is not the subject of

public accusation: his situation does not compare with

that of a defendant who has been arrested and held

to answer.” 404 U.S. at 321. No principled dis-

tinction can be drawn between respondent’s position

after the military had dismissed the charge against

him for lack of evidence and that of the defendants

in Marion; in neither case was there outstanding

during the period of delay an official accusation on

which a speedy trial could have been held.

Nor does Klopfer v. North Carolina, supra, on

which the court of appeals relied (Pet. App. 18a-

19a), suggest a different result. Klopfer presented

the question whether authorities “may indefinitely

postpone prosecution on an indictment without stated

justification over the objection of an accused * * *.”

386 U.S. at 214 (emphasis added). The unusual

state procedure under scrutiny in that case per-

mitted a prosecutor to enter a “nolle prosequi with

leave” on any indictment that he did not wish to pur-

sue immediately. Since the indictment was not dis-

charged by the filing of the nolle prosequi, the stat-

ute of limitations remained tolled; hence, although the

accused was released from custody, he remained vul-

nerable to prosecution on the same indictment at any

time, at the option of the prosecutor.

This Court held that the North Carolina procedure

violated the right to a speedy trial, because the sus-

pension of the prosecution “indefinitely prolong[ed

the] oppression, as well as the ‘anxiety and concern

accompanying public accusation’” (386 U.S. at 222,

quoting from United States v. Ewell, supra, 383 U.S.

at 120, emphasis added). Thus, as Judge Craven

observed in dissent in this case (Pet. App. 37a),

the distinction that the panel majority acknowledged

between this case and Klopfer—“there, an indictment

remained potentially effective during the period of

delay; here [respondent] was not indicted until the

end of the period” (id. at 18a)—was central to this

Court’s Sixth Amendment analysis in Klopfer and

was the crucial factor that brought that case within

the rule announced in Marion for determining the

applicability of the Speedy Trial Clause. Nothing in

Klopfer supports an extension of the speedy trial

protection to the period when a defendant is not the

subject of any criminal charges.”

27 The court of appeals’ erroneous inclusion of the period

between October 1970 and January 1975 in its speedy trial

calculations eliminates the need to challenge its analysis of the

factors identified in Barker v. Wingo, supra, 407 U.S. at 530,

since respondent has never contended that his Sixth Amend-

ment right to a speedy trial was violated by the post-

indictment delay standing alone (Pet. App. 12a). Assuming

that the four years during which no charges were pending

against respondent could properly be considered for Sixth

Amendment purposes, however, we believe that the court

of appeals erred in concluding that respondent was denied

a speedy trial.

Although the length of the delay in this case was substan-

tial, Barker (which involved a gap of more than five years

2. Extension of the Speedy Trial Clause to the

period after charges against an accused have

been dismissed would have a substantial adverse

impact on administration of the criminal law

It is not uncommon for criminal charges to be dis-

missed as a matter of prosecutorial discretion. Ar-

rests may be made improperly or indictments obtained

between arrest and trial) indicates that that factor is in-

sufficient by itself to establish a Sixth Amendment violation.

Moreover, as we discuss below (see pp. 64-70, infra), re-

spondent has failed to demonstrate either that the delay was

wholly unjustified or that it resulted in prejudice to his de-

fense. While respondent may have experienced anxiety in the

aftermath of the crimes, such general allegations are entitled

to little weight. See United States v. Jackson, supra, 542 F.2d

at 409; United States Vv. Graham, supra, 538 F.2d at 265;

United States vy. Saglimbene, 471 F.2d 16, 18 (C.A. 2), cer-

tiorari denied, 411 U.S. 966. Anxiety is suffered by all de-

fendants, and respondent’s complaint appears less compelling

than most: he did not stand publicly accused of wrongdoing

during more than a few months of the period of delay, he was

not incarcerated, and there was no significant disruption of

his activities.

Finally, there is no basis for the court of appeals’ statement

that respondent “reasonably asserted his right to a speedy

trial” (Pet. App. 24a). Indeed, the court’s conclusion demon-

strates the incongruity of a Sixth Amendment analysis in cir-

cumstances such as these. Respondent could not have asserted

a right to be tried between October 1970 and January 1975,

since no charges were then pending against him. Nor can the

correspondence from respondent’s counsel to the Department

of Justice during 1973 and 1974 (A. 89-109) even be fairly

characterized as a demand that respondent be indicted. These

letters consisted either of neutral inquiries concerning the cur-

rent status of the government’s investigation or requests

that the government halt its efforts to link respondent to the

murders on the ground that the Article 32 inquiry had estab-

lished his innocence.

prematurely; even when an arrest or indictment is

proper, the government may decide not to pursue the

case because subsequent and considered judgment re-

veals that the evidence (though satisfying the prob-

able cause requirement) may not be sufficient to es-

tablish guilt beyond a reasonable doubt. And on other

occasions, non-evidentiary factors, legitimately a part

of the decision whether to prosecute, may indicate

that a criminal proceeding would not be in the public

interest. Cf. United States v. Lovasco, supra, slip op.

11. In such circumstances the accused is spared the

financial and emotional burdens of a trial, with the

risk of conviction, and the courts, the prisons, and the

public are saved the expense associated with an un-

necessary or unwise utilization of the criminal justice

system.

The cost to society from such exercises of prosecu-

torial discretion has generally been thought minimal,

since (assuming the statute of limitations has not

expired) the government may always reassess a deci-

sion not to prosecute in light of additional evidence

or other events. But the incentive to follow this sound

course is significantly diminished if, by declining to

pursue a case at the outset, the prosecutor would

thereby risk forfeiting the government’s right to try

the accused at any time.

The consequence of a holding that a defendant’s

speedy trial rights, once triggered by arrest or indict-

ment, continue to run despite a dismissal of the

cherges may therefore be the prosecution of individ-

uals who would otherwise not be tried at all. More-

over, trials undoubtedly would result in some instances

in acquittal of the guilty because of the government’s

inability in the short time available after an arrest

to develop compelling proof of guilt. See United

States v. Lovasco, supra, slip op. 9. Even if the prose-

cutor did decide to dismiss charges following an ar-

rest in the hope that additional evidence could be

developed, further investigation of the case would

occur in a hurried atmosphere hardly conducive ei-

ther to the accumulation of reliable evidence or to

scrupulous adherence to constitutional standards.

For these reasons, the decision below represents

poor policy as well as bad law. Congress has recog-

nized as much in the Speedy Trial Act of 1974, 18

U.S.C. (Supp. V) 3161 et seg., which was enacted

“to give effect to the sixth amendment right to a

speedy trial for persons charged with criminal of-

fenses * * *.” S. Rep. No. 93-1021, 93d Cong., 2d

Sess. 1 (1974). Section 3161(d) of the Act permits

the strict time limits imposed elsewhere in the statute

to run anew if an indictment or information is dis-

missed on the defendant’s motion, or if a complaint

“is dismissed or otherwise dropped” prior to indict-

ment, and the defendant is subsequently charged with

the same offense.” Furthermore, for purposes of com-

28 Sections 3161(b) and (c) generally require indictment

to occur within 30 days of arrest, arraignment to occur with-

in 10 days of indictment, and trial to occur within 60 days

of arraignment.

puting the time within which a trial must be held

under the Act, Section 3161(h) (6) excludes any pe-

riod of delay between the dismissal of an indictment

or information on the motion of the government and

the filing of a new charge against the accused for the

same offense.”

These rules intelligently advance the interests pro-

tected by the Speedy Trial Clause and, in our view,

reflect the proper interpretation of the constitutional

provision. When a charge dismissed at the behest of

the prosecutor is later reinstituted, the time that has

elapsed between the filing of the initial charge and

its dismissal should be included in considering the

defendant’s right to a speedy trial on the second in-

dictment. Thus, a prosecutor would be prevented

from testing the limits of permissible pretrial delay,

dropping the charges, and then starting with a clear

slate by the simple expedient of recharging the same

offenses. See S. Rep. No. 93-1021, supra, at 38. How-

ever, where, as here, the dismissal is not engineered

by the prosecution, the permissible time for trial on

the second indictment is measured from the date that

the renewed charge is brought. And in no event is the

period during which no charge is pending against the

accused included in the speedy trial calculation.

2° These provisions generally embody recommendations of

the American Bar Association. See American Bar Association,

Standards Relating to Speedy Trial §§ 2.2(b), 2.3(f) (Ap-

proved Draft 1968).

B. The Pre-Indictment Delay In This Case Did Not

Violate The Due Process Clause

The conclusion that respondent’s rights under the

Speedy Trial Clause of the Sixth Amendment have

not been infringed does not indicate that the five-year

period between the murders of respondent’s family

and his indictment for those offenses is beyond ju-

dicial scrutiny. As this Court observed in United

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

States v. Lovasco, supra, slip op. 6, and as Judge

Craven noted in dissent below (Pet. App. 40a-41a),

the proper inquiry in cases of pre-indictment delay

is one of due process under the Fifth Amendment.

A lengthy delay prior to accusation violates the

Due Process Clause if it causes actual prejudice to

the defense and if the government’s justification for

the delay is inadequate. United States v. Lovasco,

supra, slip op. 6-13. Although the court of appeals

did not undertake this analysis, and although we con-

tinue to believe that the question of prejudice to the

defense is best resolved after the trial has taken

place,” only a brief recitation of the relevant facts is

required to demonstrate that respondent could not

sustain his burden of proving a due process violation

in this case.

%° See Brief for the United States, United States v. Lovasco,

supra, at 40-48, a copy of which is being sent to respondent.

1. Respondent has not demonstrated actual preju-

dice to his defense because of the delay in

accusation

Proof of actual prejudice to the defense from a

pre-indictment delay is an essential element of a due

process claim. United States v, Lovasco, supra, slip

op. 6-7. While a substantial period of time admittedly

elapsed between the murders in February 1970 and

respondent’s indictment, this is not a case in which

any prejudice from the delay is likely to have oc-

curred. The government’s case from the outset has

consisted almost exclusively of physical evidence

culled from the crime scene, the testimony of scientific

experts interpreting that evidence, and the logical in-

ferences to be drawn therefrom. The reliability of

such evidence does not diminish with the passage of

time, nor does the ability of defense experts to offer

contrary interpretations of its significance.

Moreover, respondent is the only witness with

first-hand knowledge of the crimes and his defense

has therefore always hinged principally upon the

credibility of his story rather than the testimony of

others. Respondent has never claimed an inability

to recall the events of the night in question; indeed,

he has presented essentially the same version of those

events from his initial interview on the morning

following the murders to his appearances before the

grand jury in 1974 and 1975. There are no missing

or dead witnesses, and respondent has never claimed

otherwise. Virtually every person with knowledge

of the pertinent events was questioned at length dur-

ing the exhaustive pre-indictment investigations, and

many of the important witnesses testified at the Ar-

ticle 32 hearing. All prior statements in the case

have been transcribed and preserved.

The court of appeals’ response to these arguments

illustrates the speculativeness and illogic of its de-

termination that respondent was seriously prejudiced

by the pre-indictment delay. The prime example of

prejudice suggested by the court was that, in the five

years since the crimes took place, memories may have

faded and “witnesses can no longer be expected to

reliably recall details” (Pet. App. 25a)—a conclu-

sion difficult to reach in any case in the absence of

a trial, but also one without any factual support in

this record. In addition, the court was concerned that

“a detailed reconstruction of the murder scene” might

not be possible at this late date (id. at 26a) and that,

because most of the witnesses who were in the Army

in 1970 have now been scattered around the country,

“interviewing these witnesses before trial and in-

suring their presence at trial would be time-consum-

ing and expensive” to respondent (id. at 25a). What-

ever the validity of these latter assertions of preju-

dice,” neither is fairly attributable to an undue delay

by the government, since each allegation would have

51 We question the significance of either factor. Hundreds

of photographs of respondent’s apartment were taken on the

day of the crime, and the murder scene has remained intact

to this day (see note 9, supra). Furthermore, the govern-

ment has offered to provide respondent with the current ad-

dresses of all witnesses interviewed during the investigation

(see Pet. App. 25a).

been equally true in June 1972, when the massive

C.I.D. investigation was completed and when, accord-

ing to the court of appeals, respondent could have been

tried without violating his constitutional rights (7d.

at 21a).

It is of course impossible to discount entirely the

possibility that respondent may have been materially

prejudiced by the delay prior to his indictment, al-

though we think that possibility is quite remote in

view of the considerations outlined above. Events

at trial may substantiate the court of appeals’ fears.

What is clear at this stage, however, is that the con-

clusory observations of the court below fall far short

of establishing the “actual prejudice” required to

warrant a dismissal of an indictment under the Due

Process Clause.

2. The pre-ndictment delay in this case was not

the result of improper government conduct

Even if respondent were able to demonstrate con-

crete prejudice to his defense from the pre-indictment

delay, that showing alone would not entitle him to

relief. This Court held in United States v. Lovasco,

supra, slip op. 6-7, that “proof of prejudice is gen-

erally a necessary but not sufficient element of a

due process claim, and that the due process inquiry

must consider the reasons for the delay as well as the

prejudice to the accused.” The Court explained the

standards that govern an assessment of the reasons

offered for pre-indictment delay (id. at 7):

[T]he Due Process Clause does not permit courts

to abort criminal prosecutions simply because

they disagree with a prosecutor’s judgment as to

when to seek an indictment. Judges are not free,

in defining “due process,” to impose on law en-

forcement officials our “personal and private no-

tions” of fairness and to “disregard the limits

that bind judges in their judicial function.”

Rochin v. California, 342 U.S. 165, 170 (1952).

Our task is more circumscribed. We are to de-

termine only whether the actions complained of—

here, compelling respondent to stand trial after

the Government delayed indictment to investi-

gate further—violates those “fundamental con-

ceptions of justice which lie at the base of our

civil and political institutions,” Mooney v. Holo-

han, 294 U.S. 108, 112 (1935), and which de-

fine “the community’s sense of fair play and de-

cency.” Rochin v. California, supra, at 173.

Measured against these principles, the delay in this

case did not warrant dismissal of the indictment.

The overwhelmifg portion of the five years prior

to respondent’s indictment was spent in diligent ef-

forts to solve a complex and bizarre crime. The period

between February 1970, when the murders were com-

mitted, and October 1970, when the military charges

against respondent were dropped, was consumed by

the Army’s initial exhaustive investigation and by the

Article 32 inquiry that led to the dismissal. During

the next 18 months, until June 1972, the C.I.D. en-

gaged in a wholesale reinvestigation of the case, a

course of action that the court of appeals conceded

to be entirely understandable in light of the dismissal

of the charges against respondent for insufficient

evidence (Pet. App. 21a). Indeed, a substantial part

of this renewed inquiry was spent in attempting to

locate the intruders that respondent alleged had com-

mitted the crimes as well as to document or dispel

respondent’s repeated allegations that the evidence

gathered from his apartment was unreliable because

of the misfeasance of the poiice who had first ar-

rived on the scene (see, ¢.g., A. 76).

Not until June 1972 was the C.I.D.’s 13-volume

report submitted to the Department of Justice. Sev-

eral more months were then required for Department

of Justice personnel to digest the contents of the re-

port and to suggest other potentially fruitful lines of

inquiry. In response to requests by the Department,

the C.I.D. forwarded supplemental reports on No-

vember 9, 1972, and August 30, 1973 (A. 87). After

these additional reports were received, no significant

progress in the investigation was made until May

1974, when it was determined to utilize the services

of the F.B.I. and the grand jury in a final effort to

sift through the evidence and to reach conclusions

about the case. Once the grand jury was empaneled

in August 1974, the investigation again proceeded

with dispatch, culminating in respondent’s indictment

in January 1975.

Thus, the only period during which the five-year

investigation essentially stagnated was the nine

months between the Department’s receipt of the final

supplemental C.I.D. report and the decision to in-

stitute a grand jury investigation of the crime. The

court of appeals acknowledged that this delay was

not designed to hamper respondent’s defense (Pet.

App. 20a), instead attributing it to “indifference,

negligence, or ineptitude” (id. at 23a). Regardless

of whether this latter characterization of the govern-

ment’s efforts is accurate, we believe that, for rea-

sons we have discussed elsewhere,” the absence of a

finding that the delay was undertaken in bad faith

or to gain a tactical advantage over the accused is

fatal to any claim that respondent was deprived of

due process. The failure of the prosecution to have

proceeded with the celerity deemed desirable in retro-

spect by the court of appeals does not offend “those

‘fundamental conceptions of justice which lie at the

base of our civil and political institutions,’ * * * and

which define ‘the community’s sense of fair play and

decency.’” United States v. Lovasco, supra, slip op.

7 (citations omitted). After all, much of the delay

in this case was concededly spent in exploring and

re-exploring every avenue of inquiry, both favorable

as well as unfavorable to respondent, so that an ac-

cusation concerning a particularly heinous crime

would not be made unjustly. Delay in indictment

motivated largely by those concerns is not in any

sense unfair.

In sum, respondent has been charged by the grand

jury with three serious crimes. To preclude prosecu-

tion of a defendant whose guilt may be capable of

* See Brief for the United States, United States v. Lovasco,

supra, at 13-16, 22-23, 32.

establishment beyond a reasonable doubt is a grave

step. It should not be taken on the basis of judicial

second-guessing of the quality of the investigation

conducted by the executive branch or of speculative

assessments of the possible prejudice to the accused.

It can be justified only upon a showing that the de-

lay in reaching a prosecutorial decision was funda-

mentally unfair and violated the defendant’s right

to due process of law. This Court has stated that

“the applicable statute of limitations * * * is * * *

the primary guarantee against bringing overly stale

criminal charges.” United States v. Ewell, supra,

883 U.S. at 122. See also United States v. Lovasco,

supra, slip op. 5-6. The determination of Congress

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 perpe-

trator of that offense is so substantial that prosecu-

tion is not to be foreclosed regardless of the passage

of time. In this case there is no constitutional im-

pediment to that legislative judgment.

CONCLUSION

The judgment of the court of appeals should be

vacated and the case should be remanded with direc-

tions to dismiss respondent’s appeal for want of juris-

diction. If the Court reaches the merits, it should re-

verse the judgment of the court of appeals.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

KENNETH S. GELLER,

Assistant to the Solicitor General.

SHIRLEY Baccus-LoBEL,

MICHAEL E. Moore,

BRIAN M. MURTAGH,

Attorneys.

SEPTEMBER 1977.

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