Petition — United States v. Lovasco

preme Court, U.@ 4

‘he FPL E D 14

JUN 21 1976

r 61) JR. Corre

Iu the Supreme Court of ihe United States

OCTOBER TERM, 1975

UNITED STATES OF AMERICA, PETITIONER

Vv.

EUGENE LOVASCO, SR.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JOHN P. RUPP,

Assistant to the Solicitor General,

JEROME M. FEIT,

ROBERT H. PLAXICO,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Opinion below... SRE a chaclicalneismntlene

I Bai rcins ncnctiee scitgitalhattalins Meeanaeniaga

I I io cinsscinaibonnnonidontaneaiicsineciedeliil

ER PT ES el Se eee ee a

Reasons for granting the writ..._______. —

Cas. —............, sabaailic Galo atieaipelalids

Appendix A

Appendix B __.

Appendix C

Appendix D -._...............

CITATIONS

Cases:

Barker v. Wingo, 407 U.S. 514-0.

Barnes v. United States, 412 U.S. 837_

Dillingham v. United States, 423 U.S.

s-

12a

13a

l4a

12

19

3

Hoffa v. United States, 385 U.S. 298. 14-15

Smith v. United States, 360 U.S. 1 _..

United States v. Barket, 530 F. 2d 189...

United States v. Beitscher, 467 F. 2d

SAAN SRL RCI nah Ree A

United States v. Bridgeman, 523 F. 2d

a aa"

13

8, 9,

12,19

16

17

United States v. Daley, 454 F. 2d 505 16-17

United States v. Duke, 527 F. 2d 386.

United States v. Dukow, 453 F. 2d 1328,

certiorari denied sub nom. Crow v.

United States, 406 U.S. 945

16

II

Cases—Continued Page

United States v. Ewell, 383 U.S. 116 13

United States v. Finkelstein, 526 F. 2d

SPS ERM OL OSes oe ee 16,17

United States v. Galardi, 476 F. 2d 1072. 20

United States v. Giacalone, 477 F. 2d

ETRE Sage hes PST IEA ae 16

United States v. Jackson, 504 F. 2d 337,

certiorari denied, 420 U.S. 964 _...__.. 19

United States v. Jones, 524 F. 2d 834... 17

United States v. Marion, 404 U.S. 307... 3, 10,

12, 13, 14, 15, 17, 20

United States v. McGough, 510. F. 2d

ss SII taken emsisdenimiaiistneasins atianiatimbaaap inate ica a 20

United States v. Naftalin, C.A. 8, No. 75-

1692, decided March 30, 1976... 19

United States v. Ricketson, 498 F. 2d

Re ee a EES 16

United States v. Watson, No. 74-538, de-

cided January 26, 1976 .........__..._-____.. 15

United States v. Wilson, 517 F. 2d 1400. 16

Constitution, statutes and rule:

Constitution of the United States,

Fifth Amendment —..... 10

Sixth Amendment _...............8, 11, 18

18 U.S.C. 922(a) (1)... 2 4

a i aeenasel 2,4

I a i 6

ERNEST a ae oe 2,19

Fed. R. Crim. P.:

Rule 48 _... sesh iitsindesdiesibitatanilcests iia 3

Rule 48(b) —..... 5 es iapaecsipadeaniiicmanan an 7

In the Supreme Court of the United States

OCTOBER TERM, 1975

No.

UNITED STATES OF AMERICA, PETITIONER

v.

EUGENE LOVASCO, SR.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

The Solicitor General, on behalf of the United

States of America, petitions for a writ of certiorari

to review the judgment of the United States Court

of Appeals for the Eighth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-lla) is reported at 532 F. 2d 59.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 12a) was entered on February 23, 1976. On

(1)

2

April 21, 1976; the court of appeals denied a petition

for rehearing, with suggestion for rehearing en banc

(App. C, infra, p- 18a). On May 11, 1976, Mr. Jus-

tice Blackmun extended the time for filing a petition

for a writ of certiorari to and including June 20,

1976 (a Sunday). The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1). :

QUESTIONS PRESENTED

1. Whether a defendant who seeks the dismissal

of an indictment because of pre-accusation delay must

show that the government sought the delay to secure

an improper tactical advantage as well as that the

delay impaired his ability to defend against the

charges.

2. Whether, barring exceptional circumstances, a

district court should reserve ruling on a due process

claim based upon pre-accusation delay until after

trial, at which time the defendant’s allegations of

prejudice can be assessed in light of the evidence

introduced at trial.

STATEMENT

Respondent was indicted on March 6, 1975, in the

United States District Court for the Easte*n District

of Missouri on three counts of unlawfui pc. -ssion of

materials stolen from the mails, in violation of 18

U.S.C. 1708, and on one count of engaging in the

business of dealing in firearms without a license, in

violation of 18 U.S.C. 922(a)(1) and 924(a). The

indictment referred specifically to eight handguns

——

that respondent allegedly had possessed and sold be-

tween July 25 and August 31, 1973.

On March 18, 1975, respondent moved—-pursuant

to Rule 48 of the Federal Rules of Criminal Procedure

and the Sixth Amendment ‘--to dismiss the indict-

ment. He alleged in his motion that (1) the govern-

ment had completed its investigation of the matters

- referred to in the indictment on September 26, 1973;

(2) the government thereafter had delayed present-

ing its evidence against him to the grand jury for a

period of approximately eighteen months; (3) the

delay in presenting such evidence was unreasonable;

and (4) the delay had prejudiced him by causing him

to suffer anxiety and concern. Respondent made no

allegation that the government had sought the delay

to secure an improper tactical advantage, and he

made no effort to particularize the respects in which

the delay had impaired his ability to defend against

the charges.

On April 25, 1975, the district court held a hear-

ing on respondent’s motion to dismiss. The govern-

ment stipulated at the outset of the hearing that

respondent had been interviewed by a postal inspec-

tor in September 1973 concerning a series of thefts

from a mail facility operated by the Terminal Rail-

road Association in St. Louis, Missouri (H. Tr. 4).

? Since respondent did not become an “accused” until he was

indicted on March 6, 1975, his reliance upon Rule 48 and the

Sixth Amendment was obviously misplaced. See Dillingham

v. United States, 423 U.S. 64 (per curiam); United States

v. Marion, 404 U.S. 307, 313, 319.

4

The government aiso stipulated that, although inves-

tigation of the thefts had continued thereafter, only

one witness had been discovered following respond-

ent’s interview who might have bolstered the gov-

ernment’s case against him (H. Tr. 4-5).

In support of his allegation that the government

had sufficient evidence as of September 1973 to war-

rant presenting the case against him to the grand

jury at that time, respondent introduced at the hear-

ing a report that had been prepared by Postal In-

spector G. P. Wellner. The report was dated October

2, 1973, and had been forwarded to the United States

Attorney at that time (H. Tr. 19). The report indi-

cated that between August 20 and September 5, 1973,

government agents had purchased four semi-auto-

matic. pistols from David Northdurft and Martin

Koehnken. These pistols had been sold by the Brown-

ing Arms Company to various retailers but had been

stolen prior to their receipt by the retailers, after

mailing from a Terminal Railroad Association fa-

cility in St. Louis. Government agents arrested

Koehnken on September 11, at which time they seized

four additional stolen handguns.’ Subsequent inves-

tigation revealed that Koehnken had purciased the

guns from Joe Boaz. Boaz was interviewed on Sep-

tember 24, 1973, and admitted that he had known

that the guns were “hot” when he sold them to

? Koehnken subsequently pleaded guilty to a single count

charging him with having engaged in the business of dealing

in firearms without a license, in violation of 18 U.S.C. 922(a)

(1) and 924(a).

5

Koehnken. Boaz also stated during the interview

that he had obtained all eight guns from respondent

between July 26 and September 11, 1973.

Respondent, a switchman for the Terminal Rail-

road Association, was interviewed on September

26, 1973. He claimed that after having visited his

son, a mail handler for the Railroad Association, he

had found “four or five’ handguns in a sack in the

back seat of his automobile. He admitted selling the

guns he had found to Boaz, but he specifically denied

having sold Boaz all eight of the guns that had been

purchased or seized from Koehnken. The report also

indicated that respondent would not have had access

to insured mail parcels in the normal course of his

duties as a switchman and that, although his son

would have had such access and had endorsed three

of the four checks that Boaz had given respondent

as payment for the guns, the postal inspectors had

no direct evidence at that time that respondent’s son

was responsible for vue thefts.

Respondent testified at the hearing that two “pos-

sible” witnesses on his behalf had died during the

eighteen-month delay referred to in his motion to

dismiss—his brother and Tom Stewart.’ He testified

that his brother, who had worked prior to his death

at the same place of business as Boaz, had introduced

him to Boaz and had been present when he made ar-

* Respondent testified that Stewart had died approximately

six months before the date of the hearing and that his brother

had died in April 1974, approximately one year before the

hearing (H. Tr. 7-8).

6

rangements by telephone to obtain guns to sell to

Boaz (H. Tr. 6-7, 9). Respondent also testified that

he had obtained “some of the guns” identified in the

indictment from Stewart and that he had arranged

to obtain those guns by telephoning Stewart from

Boaz’s office (H. Tr. 8). On cross-examination, how-

ever, respondent stated that he had obtained only “two

or three” guns from Stewart in that manner (H. Tr.

9). He conceded further that he had told the postal

inspector who had questioned: him that he had found

some of the guns he had sold in a sack in the back

seat of his automobile and that he had not men-

tioned Stewart’s name at that time. He explained

that he had not disclosed Stewart’s involvement earlier

because Stewart “was a bad tomato” and “was liable

to take a shot” at him (H. Tr. 9-10). Respondent did

not specify at the hearing what exculpatory evidence

his brother or Stewart might have provided.*

On October 8, 1975—following an aborted attempt

by respondent to plead guilty to a misdemeanor *—

* Postal Inspector Wellner was also a witness at the hear-

ing and testified that evidence had been presented to the grand

jury tending to show that persons in addition to respondent

had been involved in the matters charged in the indictment

_(H. Tr. 21-22). The government earlier had informed the

court that its theory of the case was that respondent had re-

ceived the handguns referred to in the indictment from his

son (H. Tr. 11).

*°On August 8, 1975, respondent attempted to plead guilty

to a superseding information charging him with having

knowingly and willfully obstructed and retarded the passage

of mail matter, in violation of 18 U.S.C. 1701. But during

7

the district court entered an order dismissing all

counts of the indictment. The court based its dismissal

on Rule 48(b) of the ‘Federal Rules of Criminal] Pro-

cedure, stating in relevant part (App. D, infra, p.

14a):

[A]s of September 26, 1973, and in no event

later than October 2, 1973, the Government had

all the information relating to [respondent’s]

alleged commission of the offenses charged

against him, but did not charge [respondent]

or present the matter to a grand jury until more

than 17 months thereafter. * * *

As a result of the delay [respondent] has been

prejudiced by reason of the death of Tom Stew-

art, a material witness on his behalf. The Gov-

ernment’s delay has not been explained or justi-

fied and we find it unnecessary and unreasonable.

On February 23, 1976, a divided panel of the court

of appeals affirmed the dismissal of the three posses-

sion counts of the indictment and ordered reinstate-

ment of the count charging respondent with dealing

in firearms without a license. The majority (com-

prised of Justice Clark and Judge Bright) rested its

affirmance upon its finding that respondent had es-

the hearing on the plea, respondent repeated his earlier state-

ment about having found the handgun referred to in the

information in an unmarked package in the back seat of his

automobile. The government informed the court that “it’s

our position that if [respondent] didn’t know it was mail

matter then he cannot enter a plea of guilty to the offense”

(Plea Tr. 32), and the court thereafter declined to accept the

plea.

8

tablished “the two basic elements essential to a claim

of preindictment delay—unreasonable delay and pre-

judice to [his] ability to defend against the charges”

(App. A, infra, p. 5a). Although the majority ac-

knowledged that the delay had been occasioned by

the government’s desire to identify additional persons

who may have participated in the thefts, it neverthe-

less concluded that the district court’s finding that

the delay was “unjustified, unnecessary, and unrea-

sonable” was supported by the evidence (ibid.). With

respect to the district court’s finding of prejudice,

the majority relied upon respondent’s: assertion—not

made at or supported by the testimony at the hearing

on the motion to.dismiss—“that were Stewart’s testi-

mony available it would support his claim that he

did not know that the guns were stolen from the

United States mails” (ibid.).

Judge Heniey dissented from the decision insofar

as it upheld the district court’s dismissal of the three

possession counts, in part for the reasons stated in

his dissenting opinion in United States v. Barket,

530 F. 2d 189, 197-199 (C.A. 8). Judge Henley

stressed that “the fifth amendment protection against

preindictment or preprosecution delays is not co-

extensive with the ‘speedy trial’ protection accorded

by the sixth amendment” and that “the subject of

a criminal investigation has no constitutional right

to immediate prosecution or arrest” (App. A, infra,

p. 8a). Judge Henley also pointed out that respond-

ent had not offered any evidence tending to show

that the delay in obtaining the indictment “was

motivated by any sinister desire on the part of the

9

investigating officers or the United States Attorney

to gain a tactical advantage * * *” (id. at 8a-9a).°

Judge Henley noted additionally that respondent’s

belated assertion of prejudice as a result of Stewart’s

death made that assertion highly suspect (id. at 9a-

10a), and he concluded that, in any event, “the dis-

trict court’s finding that [respondent] sustained pre-

judice as a result of the death of Tom Stewart was

purely speculative and for that reason was clearly

erroneous” (id. at 9a). According to Judge Henley

(id. at lla):

When a district judge sustains in advance of -

trial a motion to dismiss an indictment because

of prejudicial pre-indictment delay, he takes a

stringent measure. And if such a motion is im-

providently granted, it adversely affects the

public interest in the enforcement of the crim-

inal law, and it also encourages the filing of

meritless motions, similarly based, by other

defendants. The dismissing of indictments on

account of the government’s delay in obtaining

them is not an acceptable solution to the prob-

lem of crowded criminal calendars, and in my

opinion motions such as [respondent’s] should

*In Barket, supra, Judge Henley had stated (530 F. 2d at

198):

[P]rejudice conceded, my position in a case of this kind

is that pre-prosecution delay does not amount to a denial

of due process absent a showing of bad faith or improper

motive on the part of the government in delaying the

prosecution, or a showing of detrimental reliance by a

putative defendant on the initia! decision of the govern-

ment not to prosecute.

10

not be granted in advance of trial except in clear

cases.

REASONS FOR GRANTING THE WRIT

In United States v. Marion, 404 U.S. 307, this

Court held that only “a formal indictment or infor-

mation or else the actual restraints imposed by arrest

and holding to answer a criminal charge * * * engage

the particular protections of the speedy trial provi-

sion of the Sixth Amendment” (404 U.S. at 320). At

the same time, Marion acknowledged that pre-accu-

sation delay might in some instances violate the Due

Process Clause of the Fifth Amendment and require

the dismissal of an indictment. Specifically, this Court

referred approvingly to the government’s suggestion

that the Due Process Clause would require the dis-

missal of an indictment “if it were shown at trial

that the pre-indictment delay * * * caused substantial

prejudice to * * * [the accused’s] right[ ] to a fair

trial and that the delay was an intentional device to

gain tactical advantage over the accused” (404 U.S.

at 324; footnote omitted).

The decision below represents a marked departure

from the criteria suggested by this Court in Marion

for evaluation of due process claims such as respond-

ent’s. It also conflicts in several significant respects

with decisions in other circuits dealing with the

showing required of a defendant who alleges that

pre-accusation delay has offended the Due Process

Clause. Most importantly, in this and other recent

cases the Eighth Circuit has dispensed with the re-

11

quirement that a defendant claiming a due process

violation because of pre-accusation delay show that

the government sought the delay to secure an im-

proper tactical advantage. Dismissal of an indictment

is required, under the holdings of the Eighth Circuit,

whenever the government fails adequately to justify

a particular delay and the defendant is able to dem-

onstrate that the delay prejudiced his ability to de-

fend against the charges. By relieving defendants of

any obligation to show that the delay in indictment

or arrest stemmed from improper tactical considera-

tions, the decision below ignores significant differ-

ences in the policies served by the Due Process Clause

and the speedy trial provision of the Sixth Amend-

ment.

Even assuming that the court of appeals was cor-

rect in dispensing with any requirement that respond-

ent demonstrate improperly motivated delay as an

element of his due process claim, we believe the court

erred in attempting to assess that claim prior to trial.

Both for reasons of judicial economy and because of

the difficulty of evaluating inherently speculative

allegations of prejudice without the benefit of the

full record developed at trial, it is important that this

Court make clear that claims of unconstitutional

pre-accusation delay should be resolved—absent ex-

traordinary circumstances—after trial.

1. The panel majority held in this case that the

showing required of a defendant claiming a violation

of due process because of pre-accusation delay is lim-

ited to “two basic elements”—a demonstration that

12

>

the delay was “unreasonable” and a showing that it

prejudiced the defendant’s ability to defend against

the charges (App. A, infra, p. 5a). The majority

then went on to hold that the delay that occurred here

was “unreasonable” because “the essential facts un-

derlying the indictment” were known to the prosecu-

tor approximately seventeen months prior to respond-

ent’s indictment and “[n]Jo reason existed for the

delay except a hope on the part of the Government

that others might be discovered who may have par-

ticipated in the theft of firearms from the United

States mails” (ibid.). In an earlier case, United

States v. Barket, supra, a panel of the Eighth Cir-

cuit had explained that a pre-accusation delay is “un-

reasonable” under the due process test announced in

Marion whenever the defendant has been able to show

that the delay was caused by “governmental negli-

gence” (530 F. 2d at 195).

The Eighth Circuit’s use in the present case and in

Barket of a negligence standard in assessing the gov-

ernment’s responsibility for pre-accusation delay un-

der the Due Process Clause has little in common with

the standard of tactically-motivated misconduct ap-

proved in Marion. In fact, in Barket the Eighth

Circuit erroneously relied upon Barker v. Wingo, 407

U.S. 514. for the proposition that negligence or in-

advertence by the government, delaying the obtaining

of an indictment and prejudicing the defense, violates

the Due Process Clause. Barker concerned only the

right to a speedy trial under the Sixth Amendment,

and the court’s equation of the government’s respon-

13

sibility before and after a person has been accused of

a crime ignores significant differences in the policies

served by the Due Process Clause and the speedy trial

provision of the Sixth Amendment.

Once a person has been formally accused of a

crime, the prosecution and the judiciary are obligated

under the Sixth Amendment to proceed with “orderly

expedition.” Smith v. United States, 360 U.S. 1, 10.

In assessing a Sixth Amendment claim, the finding

that a particular delay was “unreasonable” is entitled

to weight because the purpose of the speedy trial

provision is “to prevent undue and oppressive in-

carceration prior to trial, to minimize anxiety and

concern accompanying public accusation and to limit

the possibilities that long delay will impair the ability

of an accused to defend himself” (United States v.

Marion, supra, 404 U.S. at 320; quoting from United

States v. Ewell, 383 U.S. 116, 120).

Prior to formal accusation, however, the interests

of a potential defendant and of a society concerned

with the even-handed enforcement of the criminal

laws are quite different. Given limited resources,

prosecutors are constantly faced with the task of

assigning priorities. It is unfair to characterize as

prosecutorial “negligence” the decision to devote

available resources to the investigation of some mat-

ters at the expense of others, and unrealistic to as-

sume that the stringent measure of dismissing an

indictment because of pre-accusation delay will lead

to a significant lessening of the time between the

commission of offenses and the bringing of indict-

14

ments—at least insofar as those delays stem from

institutional, as opposed to malevolent, considerations.

Non-invidious pre-accusation delays are properly tol-

erated where post-accusation delays would not be,

in part because, as this Court pointed out in Marion,

prior to arrest or charge “a citizen suffers no re-

straints 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).

The approach of the court of appeals, however, is

plainly rooted in the premise that the government

has a duty to proceed expeditiously with the investi-

gation and institution of criminal charges, and that

a failure to proceed with satisfactory dispatch will

render pre-accusation delay unreasonable. This view

has serious import for the administration of crim-

inal justice and leads the judiciary down a path that

it has heretofore wisely eschewed. Here, for in-

stance, the indictment was dismissed for pre-accusa-

tion delay despite the fact, acknowledged by the ma-

jority below (App. A, infra, p. 5), that the delay was

caused by the government’s efforts to identify per-

sons in addition to respondent who may have par-

ticipated in the offenses charged in the indictment.’

The holding of the court of appeals does not square

with this Court’s observation in Hoffa v. United

* As noted above, the report submitted to the United States

Attorney by Postal Inspector Wellner stated that respondent

15

States, 385 U.S. 293, 310—quoted approvingly in

Marion (404 U.S. at 325, n. 18)—that

[t]here is no constitutional right to be arrested.

The police are not required to guess at their

peril the precise moment at which they have

probable cause to arrest a suspect, risking a vio-

lation of the Fourth Amendment if they act too

soon, and a violation of the Sixth Amendment

if they wait too long. Law enforcement officers

are under no constitutional duty to call a halt

to a criminal investigation the moment they have

the minimum evidence to establish probable

cause, a quantum of evidence which may fall far

short of the amount necessary to support a crim-

inal conviction.*

A decision to delay presenting evidence to a grand

jury pending further investigation often makes sense

as well from the perspective of the individual sus-

pected of having committed a crime. Further investi-

would not have had access in the normal course of his duties

to the mail handling facilities of the Terminal Railroad Asso-

ciation. Although respondent’s son did have access to those

facilities and had cashed some of the checks that had been

given in payment for the stolen handguns, the report further

stated that the postal inspectors did not have any evidence

showing that respondent’s son was responsible for the thefts.

®See also United States v. Watson, No. 74-538, decided

January 26, 1976. (“Good police practice often requires post-

poning an arrest, even after probable cause has been estab-

lished, in order to place the suspect under surveillance or

otherwise develop further evidence necessary to prove guil

toajury.”) (Powell, J., concurring, slip op. 6.)

16

gation may reveal that the person originally under

suspicion was not involved or that no criminal of-

fense was committed. See United States v. Finkel-

stein, 526 F. 2d 517, 526 (C.A. 2). In either event,

the decision to delay seeking an indictment may thus

serve to avoid placing the person in the position of

having been publicly accused of criminal activity.

Even if ultimately indicted, moreover, the delay may

shorten the period between the formal bringing of

charges and the defendant’s opportunity to secure

an acquittal on those charges at trial.

The question whether a defendant seeking dismis-

sal of an indictment on grounds that he has been

deprived of due process of law by pre-indictment de-

lay must show that the delay was motivated by an

attempt by the government to secure improper tac-

tical advantage is one that has divided the courts of

appeals. Av least two other circuits appear to agree

with the Eighth Circuit that a showing of improper

motivation for the delay is not essential. United

States v. Wilson, 517 F. 2d 1400 (C.A. 3); United

States v. Dukow, 453 F. 2d 1328, 1330 (C.A. 3)y

certiorari denied sub nom. Crow v. United States,

406 U.S. 945; United States v. Giacalone, 477 F. 2d

1273, 1276-1277 (C.A. 6). On the other hand, at

least four circuits do require such a showing. United

States v. Dike, 527 F. 2d 386, 390 (C.A. 5); United

States v. Ricketson, 498 F. 2d 367, 370-371 (C.A. 7);

United States v. Beitscher, 467 F. 2d 269, 272 (C.A.

10); United States v. Daley, 454 F. 2d 505, 508

17

(C.A. 1).° This disagreement among the circuits is

ripe for resolution by this Court,” particularly in

light of the substantial practical impact of the hold-

ing below on the manner in which investigative and

prosecutive functions are to be carried out.”

2. The decision below also departs from previ-

ously accepted standards by endorsing a procedure

for resolving due process claims based upon pre-

accusation delay that, in practical effect, significantly

dilutes the requirement that the defendant demon-

®* The Second Circuit has expressly reserved ruling on the

issue presented here (United States v. Finkelstein, supra),

and there appears to be a conflict on the issue within the Dis-

trict of Columbia Circuit (compare United States v. Bridge-

man, 523 F. 2d 1099, 1111-1112, with United States v. Jones,

524 F. 2d 834, 839-3846).

1 In each of the cases sustaining our position, the court

also concluded that the defendant had failed to establish

prejudice as a result of the pre-indictment delay, so that,

strictly speaking, it is arguable that the statements regarding

the cause of delay are only an alternative holding. Neverthe-

less, each of the courts has clearly expressed a view on the

subject in direct conflict with the position of the court of

appeals in the instant case.

11 An additional difficulty inherent in the decision in this

case is that it requires courts confronted with due process

allegations based upon pre-accusation delay to determine the

point at which the government possessed sufficient evidence

to warrant submitting that evidence to the grand jury. In

many cases, the making of such a determination would involve

nearly insuperable problems. In almost all cases, moreover,

lengthy hearings—similar in character to the trial itself—

would be necessary before the required determination could

be made with any assurance. See United States v. Marion,

supra, 404 U.S. at 321, n. 13.

18

strate that the delay caused actual and substantial

prejudice to his ability to defend against the charges.

While it may sometimes be possible, and not unduly

burdensome, for a court to determine with some as-

surance prior to trial whether the government sought

to delay formal accusation to secure an improper

tactical advantage, the same will seldom be true of

allegations of defense prejudice. At a minimum, re-

quiring the government te respond, prior to trial, to

allegations that a particular delay impaired the ac-

cused’s ability to defend against the charges will

require a dress rehearsal of the trial itself. The re-

sulting expenditure of judicial and prosecutorial re-

sources, and the inevitable inconvenience to wit-

nesses and others, is not required to vindicate the

policies served by the Due Process Clause.

The dangers inherent in attempts to resolve due

process claims prior to trial are, in fact, graphically

illustrated by the decision below. At best, the ma-

jority’s finding on the issue of defense prejudice

rests upon unsubstantiated speculation concerning

both the nature and strength of the government’s

case against respondent and respondent’s anticipated

defense. Respondent made no effort at the hearing

on his motion to dismiss to explain what information

his brother or Tom Stewart might have provided that

122 While we disagree with the conclusion that actual and

substantial prejudice was established, we do not ask this

Court to review that essentially factual conclusion, but rather

the broader question of whether it was proper to arrive at

such a conclusion as a result of a pre-trial hearing.

“a2

19

would have been favorable to his defense. In finding

that respondent’s ability to defend had been impaired

by Stewart’s death, the majority below relied upon

respondent’s contention—not made at or supported

by the testimony at the hearing—that “were Stew-

art’s testimony available it would support [respond-

ent’s] claim that he did not know that the guns were

stolen from the United States mails” (App. A, infra,

p. 5a). But as Postal Inspector Wellner’s report

indicates, the person to whom respondent sold the

guns (Joe Boaz) admitted during questioning that

he had known that the guns were “hot” when he

resold them. At trial, Boaz presumably would have

been asket from whom he received that information

and, since he had purchased the guns from respond-

ent, the answer could well have shown that respond-

ent also knew that the guns had been stolen.”

3 To establish a violation of 18 U.S.C. 1708, the govern-

ment need only have shown at trial that respondent knew that

the guns had been stolen—not that they had been stolen

from the United States mails. Barnes v. United States, 412

U.S. 837, 847.

% The Eighth Circuit apparently construes Marion as re-

quiring courts to engage in “a process of balancing the rea-

sonableness of the delay against any resultant prejudice to

the defendant” (United States v. Barket, supra, 530 F. 2d

at 193; quoting from United States v. Jackson, 504 F. 2d 337,

339 (C.A. 8), certiorari denied, 420 U.S. 964). Or, as ex-

plained in a more recent Eighth Circuit decision, “as the

delay increases, the specificity with which prejudice must

appear, diminishes” (United States v. Naftalin, No. 75-

1692, decided March 30, 1976 (slip op. 6)). Although the

majority did not in this case expressly state that it was bal-

ancing its assessment of prejudice against its assessment of

20

By countenancing resolution of respondent’s due

process claim prior to trial, the majority of the court

below ignored the procedures suggested by this Court

in Marion. In that case, as here, the defendants

relied “solely on the real possibility of prejudice in-

herent in any extended delay; that memories will

dim, witnesses become inaccessible, and evidence be

lost” (404 U.S. at 325-326). This Court concluded,

however, that while “[e]vents of the trial may dem-

onstrate actual prejudice, * * * at the present time

[defendants’] due process claims are speculative and

premature” (id. at 326). The enhanced ability to

make a sound assessment of claims of prejudice after

trial, combined with the substantial economy of judi-

cial and prosecutorial resources that will be accom-

plished by avoiding a lengthy pre-trial hearing that

will inevitably be largely duplicative of the trial it-

self, prove the soundness of a rule, which we urge

this Court to adopt, requiring that claims such as

that of respondent normally be resolved after trial.

the length or reasonableness of the delay, respondent’s show-

ing of prejudice fell far short of the showing that would

have been required in other circuits to establish a violation

of due process. See, e.g., United States v. McGough, 510 F. 2d

598, 604 (C.A. 5) (mere allegation that several potential

witnesses had died and the memories of others had faded held

to constitute an insufficient showing of prejudice absent evi-

dence of their potential utility to the defense); United States

v. Galardi, 476 F. 2d 1072, 1075 (C.A. 9) (unexplicated claim

that missing person might have been useful to the defense

held insufficient); United States v. Dukow, supra, 453 F. 2d

at 1330 (deaths of two potential witnesses insufficient to

establish prejudice where the defense failed to show what

their testimony would have been).

ae nc ts ce NE

21

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be granted.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JOHN P. Rupp,

Assistant to the Solicitor General.

JEROME M. FEIT,

ROBERT H. PLAXICO,

Attorneys.

JUNE 1976.

ee

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 75-1852

UNITED STATES OF AMERICA, APPELLANT

Vv.

EUGENE LOVASCO, SR., APPELLEE

Appeal from the United States District Court

for the Eastern District of Missouri

Submitted: January 16, 1976

Filed: February 23, 1976

Before CLARK, Associate Justice, Retired,* and

BRIGHT and HENLEY, Circuit Judges.

*TOM C. CLARK, Associate Justice, Retired, United

States Supreme Court, sitting by designation.

2a

BRIGHT, Circuit Judge.

The grand jury on March 6, 1975, indicted Eugene

Lovasco, Sr., charging him with three counts of un-

lawful possession of handguns stolen from the mail,

and one count of engaging in the business of dealing

in firearms without a license, in violation of 18

U.S.C. §§ 922(a) (1) and 924(a). These indictments

referred to eight handguns which Lovasco had pos-

sessed and then sold to a third party between July

25, 1973 and August 31, 1973, some 17 months

before the indictment.

Prior to trial, Lovasco moved to dismiss the indict-

ments because of prejudicial preindictment delay.

The alleged offenses had been investigated by the

postal inspector of the St. Louis, Missouri, post office

department, between August 20, 1973, and October

2, 1973. During the investigation on September 26,

1973, a postal inspector interviewed Lovasco in the

presence of his attorney and obtained a statement

from him. The post office department sent a report

of alleged offenses to the United States Attorney for

the Eastern District of Missouri on October 2, 1973.

District Court Judge John K. Regan dismissed all

counts of the indictment, noting that although the

Government had possessed all of the information re-

lating to the defendant’s alleged commission of the

offenses on or about October 2, 1973, it did not

charge the defendant or present the matter to a

grand jury until more than 17 months thereafter.

The court concluded:

3a

As a result of the delay defendant has been

prejudiced by reason of the death of Tom Stew-

art, a material witness on his behalf. The Gov-

ernment’s delay has not been explained or justi-

fied and we find it unnecessary and unreason-

able.’

Upon our review of the record, we affirm the district

court’s dismissal of counts one, two, and three (alleg-

ing unlawful possession of stolen handguns), but

direct reinstatement of count four (dealing in fire-

arms without a license).

In testimony supporting his motion for dismissal,

Mr. Lovasco repeated in substance the statement that

he had earlier made to postal authorities to the effect

that after visiting his son, Eugene, Jr., a mail han-

dler at the Clark Avenue mail facility of the Termi-

nal Railroad Association, he found a sack in the back

of his car containing Browning automatic pistols.

Lovasco added to that earlier statement by testify-

ing that he had received two or three of the auto-

matic pistols from one Tom Stewart, now deceased,

who had worked for the Terminal Railroad as did

Lovasco. Lovasco stated that he had not mentioned

to the postal inspector investigating the case that he

received some of the guns from Stewart because as

he described Stewart, “this guy was a bad tomato,

he was liable to take a shot at me if I told him.”

Some other information relative to Mr. Lovasco

having sold a gun to another party surfaced in

1 The court’s order is unpublished.

4a

March of 1975, but that additional evidence does not

seem to be embodied in any of the counts of the in-

dictment. The postal inspector in charge of the case

testified that he would have recommended the prose-

cution of this case and presentation of the evidence

to the grand jury based on the information contained

in the report submitted to the United States Attorney

on October 2, 1973.

The prosecuting attorney has indicated that the

Government theorized that the guns in question had

come from the accused’s son, who worked at the post

office, but no charges have been made against him.

At oral argument the prosecutor indicated the delay

in the prosecution resulted from awaiting results of

further investigation which might have implicated

the person or persons who may have stolen the mailed

matter.

We discussed preindictment delay in United States

v. Jackson, 504 F.2d 337 (8th Cir. 1974), where we

noted:

The Supreme Court in Marion [United States

v. Marion, 404 U.S. 307 (1971) ] recognized that

pre-prosecution delay on the part of the Govern-

ment may have violated defendant’s right to due

process of law under the Fifth Amendment, and

specifically declared that the statute of limita-

tions does not fully define the rights of criminal

suspects to be speedily accused. [Jd. at 339.]

We added:

Our court, too, has often recognized that an un-

reasonable pre-accusation delay, coupled with

- So A Ee A eS A PO ee

5a

prejudice to the defendant, may violate the Fifth

Amendment, although we have yet to hold in any

case that the prejudice was sufficient to require

reversal. [/d. at 339 (citations omitted).]

Here, the trial court found the two basic elements

essential to a claim of preindictment delay—unrea-

sonable delay and prejudice to one’s ability to defend

against the charges. Although the essential facts

underlying the indictment were known to the Gov-

ernment and to the prosecutor on October 2, 1973,

no prosecution was initiated for 17 months. No rea-

son existed for the delay except a hope on the part

of the Government that others might be discovered

who may have participated in the theft of firearms

from the United States mails. The postal inspector

had submitted a prompt report to the prosecutor

with documentations of facts uncovered in the inves-

tigation. The district court deemed the delay unjus-

tified, unnecessary, and unreasonable. That determi-

nation is supported by the evidence.

Lovasco testified that one Tom Stewart, who is now

dead, sold him two of the firearms in question, and

contends that were Stewart’s testimony available it

would support his claim that he did not know that

the guns were stolen from the United States mails.

In support of the motion to dismiss, Lovasco testified

that Stewart died about six months prior to April

25, 1975. The Government concedes that Tom Stew-

art did exist and was employed by the Terminal

Railroad. While the Government does not concede

Stewart’s death, it does not claim to have any evi-

6a

dence that he is now alive. Thus, the record also

supports the district court’s finding that the defend-

ant has been prejudiced by reason of the death of

Tom Stewart, a material witness on his behalf.

These findings of unreasonable delay and preju-

dice support the dismissal of counts one, two, and

three of the indictment, but do not support dismissal

of count four.

The fourth count charges Lovasco with dealing in

firearms without a license as required by federal

law. According to the investigation report, one Joe

Boaz, Jr., stated that he had purchased eight pistols

from Eugene Lovasco, Sr. on various dates between

July 26, and September 11, 1973. In the statement

given to the postal inspector, Lovasco admitted sell-

ing four or five pistols that he had found in his car

to Joe Boaz, Jr., but denied selling any other pistols

to him. In his testimony before the district court on

the motion to dismiss, the accused admitted finding

a bag of pistols in the car and obtaining two other

pistols from Tom Stewart. He added, “and Joe Boaz

bought them over the telephone.”

As we understand it, the fourth count relates

solely to the transaction between Lovasco and Boaz.

Since Tom Stewart was not a participant in that

transaction and the question of whether the guns

were stolen is irrelevant to the charge, it is difficult

to perceive any prejudice to Lovasco’s defense be-

cause of the death of Stewart. Significantly, counsel

for appellee conceded at the hearing before the dis-

trict court that the fourth count is independent of

7a

the other three counts. While counsel contended the

fourth count could not stand on its own, that issue

is not before us.

Accordingly, we sustain the dismissal of counts

one, two, and.three of the indictment, but direct the

reinstatement of count four.

HENLEY, Circuit Judge, Dissenting.

I agree with the majority that the fourth count

of the indictment against the defendant should be

reinstated. I respectfully dissent from the view of

the majority that the order of the district court

should be affirmed to the extent that it dismissed the

first three counts of the indictment.

With respect to those counts, my view is that the

action of the district court in dismissing the first

three counts in advance of trial on the theory that

the defendant suffered prejudice us a result of an

unreasonable preindictment delay on the part of the

government was clearly erroneous. In my opinion

the district court at most should have done no more

than reserve ruling on the motion and let the case

proceed to trial. Had the defendant been acquitted,

the question of preindictment delay would not have

survived; had he been convicted the question might

well have been presented in clearer focus post trial

than that in which it was presented in advance of

trial and on the defendant’s motion to dismiss.

Very recently in United States v. Barket, —— F.

2d —— (8th Cir. No. 75-1320 Jan. 28, 1976), a

8a

majority of a panel of this court affirmed an order

of the United States District Court for the Western

District of Missouri dismissing for preindictment de-

lay an indictment returned in 1974 charging that in

1970 the defendant, a bank official, unlawfully made

a contribution of bank funds to a political campaign

and that in so doing he misapplied the funds of the

bank. The indictment in that case was returned

within the applicable statutory period of limitations

which at that time was five years.

As a member of the panel, I dissented in that case

and filed an opinion setting out my general views as

to the proper application to individual cases of the

general rule laid down in United States v. Marion,

404 U.S. 307 (1971). I see no occasion to restate

those views here except to repeat and emphasize my

opinion that the fifth amendment protection against

preindictment or preprosecution delays is not coex-

tensive with the “speedy trial” protection accorded

by the sixth amendment, and again call attention to

the fact that the subject of a criminal investigation

has no constitutional right to immediate prosecution

or arrest. See Hoffa v. United States, 385 U.S. 293,

310 (1966), cited with approval in United States v.

Marion, supra, 404 U.S. at 325.

Here, as in Barket, there is no evidence that the

delay of the government in obtaining the indictment

against the defendant, which delay the district court

found was unreasonable, was motivated by any sinis-

ter desire on the part of the investigating officers or

the United States Attorney to gain tactical advan-

9a

tage over the defendant by means of the delay or to

prejudice him in his defense. Nor is there any evi-

dence of any detrimental reliance by the defendant

on the fact that although a statement was taken

from the defendant in September, 1973 and a report

to the United States Attorney was made by postal

authorities in October of that year, defendant was

not indicted until March, 1975.

Further, the delay involved in this case was much

shorter than the delay involved in Barket, and the

offense for which the defendant was ultimately in-

dicted arguably may be considered as more serious

and involving more moral turpitude than the offenses

charged against Mr. Barket.

Apart from those considerations, I think that the

district court’s finding that the defendant sustained

substantial prejudice as the result of the death of

Tom Stewart was purely speculative and for that

reason was clearly erroneous.

The record and the briefs disclose that the indict-

ment was returned on March 6, 1975; on March 18,

1975 defendant filed his motion to dismiss; and a

hearing was held on the motion on Apri 25, 1975.

In his brief counsel for defendant states that his

client testified that Stewart had died about six

months prior to the hearing. If so, Stewart had

ceased to be a source of danger to the defendant, if

he ever was, when the motion was filed. Neverthe-

less, no mention of Stewart or his “lost testimony”

is made in the motion, and there is no allegation of

specific prejudice in the motion except the assertion

10a

that the defendant had suffered “anxiety and con-

cern” since his statement had been taken in 1973.

The name of Stewart seems to have come up for the

first time when the defendant testified in support

of his motion. In the circumstances, one may sus-

pect that the claim of prejudice based on the death of

Stewart was nothing but a fabrication, and that had

Stewart been alive the defendant could just as weil

have relied on the recent death of any other of his

acquaintances, claiming that he had innocently ac-

quired the pistols from that acquaintance.

Defendant made no specific showing as to what he

would have proved by Stewart had the latter been

available, and in fact defendant made no showing

that Stewart would have taken the stand in defend-

ant’s behalf had Stewart been alive and subject to

subpoena.

Had Stewart taken the stand and undertaken to

exculpate the defendant, he doubtless would have

been required to explain his own connection, if any,

with the pistols in question, and that connection may

well have been highly culpable. The defendant could

not have compelled Stewart to incriminate himself,

and it is unrealistic to believe that Stewart would

have done so voluntarily simply to aid or accommo-

date the defendant.

If the defendant had been put to trial, it would

have been open to him to contend before the jury that

he had acquired the pistols from Stewart without any

guilty knowledge and to urge upon the jury the fact

that Stewart’s death had deprived defendant of the

lla

benefit of Stewart’s testimony. As it is, the defend-

ant simply goes free without trial.

When a district judge sustains in advance of trial

a motion to dismiss an indictment because of preju-

dicial pre-indictment delay, he takes a stringent

measure. And if such a motion is improvidently

granted, it adversely affects the public interest. in

the enforcement of the criminal law, and it also

encourages the filing of meritless motions, similarly

based, by other defendants. The dismissing of in-

dictments on account of the government’s delay in

obtaining them is not an acceptable solution to the

problem of crowded criminal calendars, and in my

opinion motions such as that of the defendant should

not be granted in advance of trial except in clear

cases.

A true copy.

. Attest:

CLERK, U.S. CourT OF APPEALS,

EIGHTH CIRCUIT.

12a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1975

No. 75-1852

THE UNITED STATES, APPELLANT

v8.

EUGENE Lovosco, SR., APPELLEE

Appeal from the United States District Court

for the Eastern District of Missouri

JUDGMENT

This cause came on to be heard on the original

designated record of the United States District Court

for the Eastern District of Missouri and briefs of

the respective parties and was argued by counsel.

On Consideration Whereof, it is now here ordered

and adjudged by this Court that the dismissal of the

said District Court of Counts One, Two and Three

in this cause is hereby affirmed in accordance with

the majority opinion of this Court.

And it is further ordered by this Court that Count

Four (dealing in firearms without a license) be and

is hereby reinstated with the majority opinion of

this Court.

February 23, 1976

A true copy.

Attest:

/s/ Robert C. Tucker

Clerk

U. S. Court of Appeals

8th Circuit

April 28, 1976

13a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SEPTEMBER TERM, 1975

75-1852

THE UNITED STATES, APPELLANT

Vv.

EUGENE LOVASCO, SR., APPELLEE

Appeal from the United States District Court

for the Eastern District of Missouri

The Court having considered petition for rehearing

en banc filed by counsel for appellant and, being

fully advised in the premises, it is ordered that the

petition for rehearing en banc be, and it is hereby,

dented.

Considering the petition for rehearing en banc

as a petition for rehearing, it is ordered that the

petition for rehearing also be, and it is hereby, de-

nied.

April 21, 1976

l4a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 75-66 CR (2)

UNITED STATES OF AMERICA, PLAINTIFF

v.

EUGENE LOVASCO, SR., DEFENDANT

ORDER

This matter is before the Court on motion of

defendant to dismiss the indictment under Rule 48

(b), F.R.CR. P.

A hearing was held on the motion. The evidence

disclosed and we find that as of September 26, 1973,

and in no event later than October 2, 1973, the Gov-

ernment had all the information relating to defend-

ant’s alleged commission of the offenses charged

against him, but did not charge defendant or present

the matter to a grand jury until more than 17 months

thereafter. The indictment was retry ned March 6,

1975.

As a result of the delay defendant has been preju-

diced by reason of the death of Tom Stewart, a ma-

terial witness on his behalf. The Government’s de-

lay has not been explained or justified and we find it

unnecessary and unreasonable.

15a

Accordingly, It Is HEREBY ORDERED that defend-

ant’s motion be and the same is hereby SUSTAINED,

and the indictment is hereby dismissed.

ed

/s/ John K. Regan

United States District Judge

Dated this 8th day of October, 1975.

& G. 8. COVERNMENT PRINTING OFrice; 1976 209374 266