Petitioners Brief — United States v. Lovasco

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Supreme Court, U.S, |

~ FILED

DEC 30 1976

No. 75-1844

ee ee ee —

Gu the Supreme Gourt of the Cited

OcroperR TerM, 1976

MICHAEL

EL RODAK, JR., CLERK |

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Unirep States 0F AMERICA, PETITIONER

EvuGcene Lovasco, Sr.

ON WRIT OF CRRTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE BIGHTH CIRCUIT

eee

BRIEF FOR THE UNITED STATES

ROBERT H. BORK,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

ANDREW L. FREY,

Deputy Solicitor General,

JOHN P. RUPP,

Assistant to ithe Solicitor General,

JEROME M. FEIT,

ROBERT H. PLAXICO,

Attorneys,

Department of Juatice,

Washington, D.C. 2056

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Argument :

I. A defendant seeking the dismissal of criminal

charges under the Due Process Clause because

of pre-accusation delay must show both that the

delay impaired his ability to defend against the

the charges and that the government sought the

delay to secure an improper tactical advantage__

A. In the absence of prosecutorial conduc:

designed to obtain an improper tactical

advantage, the permissibility of pre-

accusation delay is governed solely by the

applicable statute of limitations________

1. The approach to pre-accusation de-

lay exemplified by the decision in

this case ignores significant dif-

ferences in the status of persons

before and after formal accusa-

echin eiticiitemntoeininitiennstitioimniin’ gen

2. The Due Process Clause does n

require courts to consider on an

ad hoc basis the timeliness of

criminal charges that are brought

within the applicable statute of

limitations and are not the prod-

uct of prosecutorial over-reach-

UN one nenieniecgnisecnee ene accce

3. A basically ad hoc approach to pre-

accusation delay would entail un-

acceptable costs to the criminal

justice system without providing

assurance of fairer results than

those produced by application of

the relevant statute of limita-

I ecb rticdsdichaisiertnitcteieyidins

226-327—76——-1

owt

Argument—Continued

I. A defendant seeking, et cetera—Continued

B. Any pre-accusation delay that occurred in

this case did not violate the Due Proc-

Page

Gm CRI...ncnccccqnesequannsnoungeiin 38

II. A district court should reserve ruling on a due

process claim based upon pre-accusation delay,

and alleging both governmental misconduct and

consequent prejudice, until the conclusion of

CEE ccccccnwusccnnenpsibiatengeimedteigen 40

COREE occocccccnccctacnscetisansinntbmamwminaa 48

CITATIONS

Cases:

Allee v. Medrano, 416 U.S. 802_-.------------------ 42

Barker v. Wingo, 407 U.S. 514--------------- 16, 18, 19, 44

Barnes v. United States, 412 U.S. 837_-------------- 39, 46

Bey v. United States, 350 F. 2d 467_-..------------- 15

Brady v. Maryland, 373 U.S. 83.-.----------------- 23, 28

Branzburg v. Hayes, 408 U.S. 665__...-------------- 26

Breed v. Jones, 421 U.S. 519......--.-..-----.-..-- 41

Bridges v. United States, 346 U.S. 209_.....--.------ 30

Cobbledick v. United States, 309 U.S. 323_..-------- 41

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

DE ..noncecddaminghantenatitbabunmmntnhatnnets 41-42

Daniels vy. United States, 357 F. 2d 587_----.-------- 15

Dickey v. Florida, 398 U.S. 30_-.------------- 11, 18, 19, 32

Dillingham v. United States, 423 U.S. 64.-.--------- 17,21

Dombrowski v. Pfister, 380 U.S. 479_---------------- 42

Duncan v. Louisiana, 391 U.S. 145.-.--.--..-------- 22

Eastland vy. United States Servicemen’s Fund, 421 U.S.

NN 41

Escobedo v. Illinois, 378 U.S. 478_.-.--.------------- 25

Friebie v. Collins, 342 U.S. 519_......-....--......- 41

gS ee 23

Gravel v. United States, 408 U.S. 606..........____- 41

Green v. United States, 355 U.S. 184.---.--.--..__-- 41

Ilampton v. United States, 425 U.S. 484--.--------- 23

Hoffa v. United States, 385 U.S. 293_..------_--___- 25, 26

Imbler v. Pachtman, 424 U.S. 409_..-.----------.--- 32-33

Kirby v. [linois, 406 U.S. 682........-.--.......... 20-21

Ill

Cases—Continued

Klopfer v. North Carolina, 386 U.S. 213_.----------- 19

_ Massiah v. United States, 317 U.S. 201_--.----------- 27

O'Shea v. Littleton, 414 U.S. 488....--.------------ 32

Oyler v. Boles, 368 U.S, 448.------------------------ 42

Palko y. Connecticut, 302 U.S. 319_----------------- 22

Pollard v. United States, 352 U.S. 354.-..----------- 34

Robinson v. United States, 459 F. 2d 847.----------- 15

Rochin v. California, 342 U.S. 165.----.------------ 22

Ross v. United States, 349 F. 2d 210...-.------------ 15

Smith v. Hooey, 393 U.S. 874.--------.------------ 19

Smith v. United States, 360 U.S. 1-.-.--------------- 18

Snyder vy. Massachusetts, 291 U.S. 97---------------- 22

T oussie v. United States, 397 U.S. 112.-.------------ 29

United States v. Acosta, 526 F. 2d 670, certiorari denied

June 7, 1976, No. 75-1368....--.--.-------------- 32

United States vy. Agurs, No. 75-491, decided June 24,

a 22-23, 28

United States v. Alred, 513 F. 2d 330_...------------ 15

United States v. Barket, 530 F. 2d 18_.---..-- 8, 9, 14, 16, 35

United States vy. Bishton, 463 F. 2d 887.------------- 18

United States v. Bridgeman, 523 F. 2d 1099_.------- 15

United States vy. Calandra, 414 U.S. 338_..-.-.------- 26,47

United States v. Capaldo, 402 F. 2d $21, certiorari de-

nied, 9984 U.S. C6Bennccccécceececesccccncecccccco 21

United States v. Daley, 454 F, 2d 505_..-.----------- 15

United States v. Dionisio, 410 U.S. 1----------------- 47

United States v. Doe, 455 F. 2d 1270_...-.----------- 27

United States v. Acosta, 526 F. 2d 670, certiorari denied

June 21, 1976, No. 75-6564__.....-.----.--------- 15

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

denied sub nom. Crow v. United States, 406 U.S.

ee 45

United States v. Erickson, 472 F. 2d 505_...---.----- 15

United States y. Ewell, 383 U.S. 116_.--.------------ 18, 29

United States v. Feinberg, 383 F. 2d 60.......-..---.- 21, 24

United States v. Finkelstein, 526 F, 2d 517....-.----- 15, 21

United States vy. Galardi, 476 F. 2d 1072_____-._.-_-- 45

United States v. Giacalone, 477 F. 24 1273__._.-_--_- 15

United States v. Hauff, 395 F. 2d 555-.-------..--__- 21

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

Gy SD Es. Gi atin iintiin no cnrcncccnnccns 14

Cases—Continued Page

United States v. Jones, 524 F. 2d 834_...-.----------- 15

United States v. Joyce, 499 F. 2d 9_----------------- 15

United States v. Librach, 520 F. 2d 550...----------- 14

United States v. MacDonald, 531 F. 2d 196, petition for

a writ of certiorari pending, No, 75-1892_--------- 18, 45

United States v. Mandujano, 425 U.S. 564.-------- 24, 26, 48

United States v. Marion, 404 U.S. 307_-------------- 10,

11, 13, 16, 17-18, 19, 20, 21, 22, 26, 28, 32, 33,

36, 43, 47

United States v. McGough, 510 F. 2d 598_..--------- 45

United States v. Morrison, 535 F. 2d 223_-...-------- 28

United States v. Naftalin, 534 F. 2d 770, certiorari

denied, No. 75-1720, October 4, 1976.......-.----- 14

United States v. Norton, 504 F. 2d 342, certiorari

Goatees, GD Wey BB esccemncenssnbccaatenscbive 14-15

United States v. Page, No. 76-1612, decided Novem-

> Gk. Fee ccwnestecntmcaiondinmneniiene 14

United States v. Provoo, 17 F.R.D. 183, affirmed ver

CE, Ge Cah Gi tenccinntinequidincanctintiianane 32

United States v. Quinn, 540 F, 2d 357__-.------------ 14

United States v. Reitscher, 467 F. 2d 269__....-__---- 15

United States v. Ricketson, 498 F. 2d 367_......._-_- 15

United States v. Russell, 411 U.S. 423_....------. 23, 36

United States v. Sand, 541 F. 2d 1370_--..._..._____ 15

United States v. Scallion, 533 F. 2d 903_.......______ 15

United States v. Vispi, No. 76-1250, decided Novem-

Ee SLL ee Bee 15

United States v. Washington, 504 F. 2d 346__...___- 15

United States v. Watson, 423 U.S. 411_--....----- 25, 39-40

United States v. Wilson, 357 F. Supp. 619, affirmed, 517

a Ge Seer etcncmcinmeiandhedinntneieniitthepetndnadbinenints 15

Winshop, In re, 397 U.S. 858..........---------.... 23

Woody v. United States, 370 F. 2d 214_______-----__. 15

Yick Wo v. Hopkins, 118 U.S. 356_..---.--.-----.. 42

Constitution, statutes, and rules:

United States Constitution :

Article I, see. 6,cl. 1 (Speech and Debate Clause)_. 41

PURO - FI Rcctacicincaminedigmimatsmnaugansen 42

i EE see 42

Fifth Amendment (Due Process Clause) _....___ 11,

13, 14, 16, 22, 23, 24, 25, 26, 28, 29, 32, 35, 36

Constitution, statutes, and rules—Continued

United States Constitution—Continued : Page

Sixth Amendment (Speedy Trial Clause) .....-- 3,

10, 11, 16, 17, 18, 21, 24, 25, 36, 44

Fourteenth Amendment-_-___..----------------- 23

Act of March 26, 1804, 2 Stat. 290-....-..---.------- 30

Speedy Trial Act of 1974, 88 Stat. 2076, 18 USO.

(Supp. IV) 3161: et seg_-......................-. 19

F 8). 2) Sa eee Seen 30

i Oe Oh te ie ee oh in 30

i) § 2 30

GE, Ci cciccnticqnnsennnnannsstiansentiedénuaeon 30

ane Ses ee Se 30

I II, iss sic in eteeseneclisigeinbiminaginenianeiniabinaseneuinintetent 30

I TI iccand neteernieninnatbiatemeineindanntnnmnibaaan 31

Pe Gi bindnccncnsandsscatesusenupeegen 31

i 31

ETERS eNO OT nT 30

NE TT ss csernintentacnainereeneneeiienengmimentnenanietnniaene 31

a 31

ee Bert ccnnecoccdutadnetennenssnnannmetete 31

es Be iiteedinicccitiinmcnidetititimesgenainencesess 30

ON ia elt ctl titatlinmaigimeeniee 31

Be, Be COR vididccicccttennncccnsnnceewownsen 31

Oe Ce ierennnintncadusmncmenannes 2,4

a cicsnrcntrtiinnindntnhimmmiatsisatnatentit 2

SK EY ee ae ee Sr 7

EE a en 2, 39

Be TE ried tien eeitnasdicintenctiniieenciinnnesantrenngiaiindiniantiant 30

Cg RRS SON TEE ae Ae Oe ee 30, 38

es int tcinmdtiqudenstminnmnigeinguaaanne 30

| 31

Se 30

gy ee 31

Se Se tlc anileicealitincenerniianiebinitendsirdenieitsminepedanieet 31

DF at ccidietddcitncinnintrninntienindimennnan 48

eae ee 31

Federal Rules of Criminal Procedure :

BE ieiecdenadtibcontpocnddinnacmaneanetinen 42,43

| ES ee Cees Cre 48

EE a ae ee eR 3, 21

ee 7

Miscellaneous : ‘

American Bar Association Project on Minimum Stand-

ards for Criminal Justice, Standards Realting to

2(a)) (AP- Page | :

eT ha koa ciara OO Fn the Supreme Gourt of the Wnited States

H.R. Rep. No. 365, 67th Cong., 1st Sess. ary aay 30

Note, The Statute of Limitations in Criminal :

Penetrable Barrier to Prosecutions, 102 U. Pa. L. | Octoper TERM, 1976

di WD I 30

S. Rep. No. 384, 82d Cong., Ist Sess. (1951) ---------- 31

No. 75-1844

Unrrep States OF AMERICA, PETITIONER

EvuGENE Lovasco, Sr.

ON WRIT OF CERTIORARI TO THE UNITED STATES

: . COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 532 F.2d 59.

JURISDICTION

The judgment of the court of appeals (Pet. App. B)

was entered on February 23, 1976. On April 21, 1976,

the court of appeals denied a petition for rehearing

with suggestion for rehearing en banc (Pet. App. C).

On May 11, 1976, Mr. Justice Blackmun extended the

time for filing a petition for a writ of certiorari to

and including June 20, 1976 (a Sunday). The petition

was, filed on June 21, 1976, and was granted on

(1)

October 12, 1976 (A. 27). The jurisdiction of this

Court rests upon 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 intentionally sought the

delay in order to secure an improper tactical advan-

tage as well as that the delay impaired his ability to

defend against the charges.

2. Whether a district court should reserve ruling

on a due process claim based upon. pre-accusation

delay, and alleging both governmental misconduct and

consequent prejudice, until after trial, at which time

such allegations can be assessed in light of the evidence

introduced at trial.

STATEMENT

1. Respondent was indicted on March 6, 1975, in the

United States District Court for the Eastern District

of Missouri on three counts of unlawful possession

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 between

July 25 and August 31, 1973 (A. 3-5).

*Count One charged respondent with unlawfully possessing a

semi-automatic pistol on or about July 25, 1973; Count Two

charged that he unlawfully possessed another such pistol on or

about July 27, 1973; Count Three charged that he unlawfully

possessed six additional semi-automatic pistols on or about Au-

On March 18, 1975, respondent, invoking Rule 48

of the Federal Rules of Criminal Procedure and the

Sixth Amendment, moved to dismiss the indictment

(A. 6-7). He alleged in his motion (1) that the gov-

ernment had not obtained any information. relating to

the offenses charged in the indictment after Septem-

ber 26, 1973; (2) that the government thereafter had

delayed presenting the evidence against him to the

grand jury for a period of approximately 18 months;

(3) that the delay in presenting such evidence was

unreasonable; and (4) that the delay had caused him

to experience “anxiety and concern” (A. 6). Respon-

dent did not allege that the government had delayed

seeking an indictment to secure an improper tactical

advantage over him, and he made no effort to partic-

ularize the respects in which the delay had impaired

his ability to defend against the charges.’

On April 25, 1975, the district court held a hearing

on respondent’s motion to dismiss (A. 8-20). The

government stipulated at the outset of the hearing

that a postal inspector had interviewed respondent in

September 1973 concerning a series of thefts from a

mail facility operated by the Terminal Railroad Asso-

ciation in St. Louis, Missouri, and that, although in-

vestigation of the thefts had continued thereafter,

gust 31, 1973; and Count Four charged respondent with having

sold firearms without the necessary license (A. 3-5).

* In fact, respondent did not assert explicitly that the delay had

impaired his ability to defend himself at trial. In addition to

claiming that he had experienced “anxiety and concern,” he alleged

only that he had “been prejudiced by the delay in the presentment

to the Grand Jury” (A. 6).

226-327—76——2

only one witness had been discovered after Septem-

ber 1973 who might have bolstered the government’s

case against respondent (A. 9-10).

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, respondent introduced at the hearing a report

that had been prepared by Postal Inspector G. P.

Wellner (A. 8-9, 21-26). The report was dated

October 2, 1973, and had been forwarded to the

United States Attorney at that time (A. 18-19). The

report indicated that between August 20 and Sep-

tember 5, 1973, government agents had purchased

three semi-automatic handguns from Martin Koehn-

ken and a fourth handgun from David Northdurft.

‘These handguns had been sold by the Browning Arms

Company to various retailers but had been stolen,

prior to their receipt by the retailers, after mailing

from a Terminal Railroad Association facility in St.

Louis. Government agents arrested Koehnken on Sep-

tember 11, at which time they seized four additional

stolen handguns.* Subsequent investigation revealed

that Koehnken had purchased the eight guns—includ-

ing the gun that Northdurft had sold to the agents—

from Joe Boaz. Boaz was interviewed on Septem-

ber 24, 1973, and admitted that he had known that

the guns were “hot’’ when he sold them to Koehnken.

Boaz also stated during the interview that he had ob-

ey Koehnken subsequently pleaded guilty to a single count charg-

ing him with having engaged in the business of dealing in firearms

without a license, in violation of 18 U.S.C. 922(a) (1) (see A. 23).

tained all eight guns from respondent between July 26

and September 11, 1973 (A. 22-24).

Respondent, a switchman for the Terminal Rail-

road Association, was interviewed in the presence of

his attorney 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 automo-

bile.* 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 switch-

man and that, although his son would have had access

to insured parcels and had endorsed and cashed 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 the thefts (A. 24).

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

* Respondent claimed that he had visited his son while his son

was at work and that he had left his automobile unlocked during

the visit (A. 24). :

* 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

(A. 11-12).

at the same place of business as Boaz, had introduced

him to Boaz and had been present when he made

arrangements by telephone to obtain guns to sell to

Boaz (A. 11-12). 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 (A. 12).° On cross-examination, however,

respondent stated that he had obtained only “‘two or

three” guns from Stewart in that manner (A. 13).

He conceded further that he had told the postal inspec-

tor 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 mentioned

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 (ibid.). Respondent did not specify

at the hearing what exculpatory evidence his brother

or Stewart might have provided.’

2. On October 8, 1975—following an aborted at-

tempt by respondent to plead guilty to a misde-

* Like respondent, Stewart worked as a switchman at the Rail-

road Terminal Association (A. 11) and, as a consequence, presum-

ably would not have had access to insured mail parcels in the

normal course of his duties.

"Postal Inspector Wellner was also a witness at the hearing

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 (A. 20), The

government earlier had informed the court that its theory of the

case was that respondent had received the handguns referred to

in the indictment from his son (A, 13-14).

meanor *“—the district court entered an order dis-

missing all counts of the indictment. The court based

its dismissal on Rule 48(b) of the Federal Rules of

Criminal Procedure, stating in relevant part (Pet.

App. 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

Stewart, a material witness on his behalf. The

Government’s delay has not been explained or

justified and we find it unnecessary and un-

reasonable. _

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 court charging respondent with dealing

in firearms without a license. The majority (com-

prised of Justice Clark and J udge Bright) rested its

*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 the hearing on the plea,

respondent repeated his earlier statement 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.

affirmance upon its finding that respondent had estab-

lished “the two basic elements essential to a claim of

preindictment delay—unreasonable delay and preju-

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

(Pet. App. 5a). Although the majority acknowledged

that the delay had been occasioned by the govern- -

ment’s desire to identify additional persons who

may have- participated in the thefts, it nevertheless

concluded that the district court’s finding that the

delay was “unjustified, unnecessary, and unreason-

able’? was supported by the evidence (ibid.). With

respect to the district court’s finding of prejudice,

the majority relied upon the assertion of respondent’s

- eounsel in brief and argument—but not made at or

supported by the testimony at the hearing on the

motion to dismiss—“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” (ibid.).°

Judge Henley 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 pre-

indictment or preprosecution delays is not coextensive

® The court reversed the district court’s dismissal of the count of

the indictment charging respondent with dealing in firearms with-

out a license, after having concluded that that count related solely

to a transaction between respondent and Boaz and that Stewart’s

death could not have impaired respondent’s ability to defend

against that charge (Pet. App. 6a-7a).

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” (Pet. App. 8a). Judge Henley

also pointed out that respondent 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 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 district

court’s finding that [respondent] sustained substan-

tial prejudice as a result of the death of Tom Stewart

was purely speculative and for that reason was

clearly erroneous” (td. at 9a). According to Judge

Henley (id. at lla):

When a district judge susta‘.1s 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 improvidently granted, it adversely affects

the public interest in the enforcement of the

criminal law, and it also encourages the filing

*° 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 mo-

tive on the part of the government in delaying the prosecu-

tion, or a showing of detrimental reliance by a putative

defendant on the initial decision of the government not to

prosecute.

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 not be granted -in advance of trial ex-

cept in clear cases.

SUMMARY OF ARGUMENT

LL.

The standard employed by the Eighth Circuit in

this and other recent cases for assessing the permis-

sibility of pre-accusation delay renders this Court’s

decision in United States v. Marion, 404 U.S. 307,

largely meaningless. In effect, the Eighth Circuit has

imported into the pre-accusation phase of criminal

proceedings obligations of: efficient investigation and

prompt indictment measured by standards compar-

ably stringent to those adopted by this Court to gov-

ern application of the Sixth Amendment’s explicit

speedy trial requirement. In the process, the court

has obliterated most if not all of the distinction be-

tween pre-accusation and post-accusation prosecu-

torial obligations, ignored substantial public policies

that strongly counsel against rules tha. encourage

premature public accusation, and created a host of

practical difficulties having serious import for the ad-

ministration of criminal justice. There was good rea-

son for this Court’s view in Marion that pre-accusa-

tion delay is materially different in nature and impact

and should accordingly be assessed under less exact-

ing criteria. We suggest again, as we did in Marion,

that the severe sanction of dismissal of charges is

appropriate only in the rare case in which the de-

fendant can demonstrate both that the delay stemmed

from -invidious motivations and that it caused sub-

stantial prejudice to his defense.

1. The decision in this case ignores significant dif-

ferences in the status of persons before and after

formal accusation—differences at the heart of this

Court’s determination in Marion that the obligations

imposed by the Sixth Amendment’s speedy trial pro-

vision are triggered by formal accusation, rather than

by some prior act or omission attributable to the

government. The personal disabilities that generally

attend formal accusation either do not exist or are

much less severe prior to arrest and holding te answer

or the bringing of criminal charges. At the same time,

delaying arrest or charge pending further investiga-

tion often benefits both the person suspected of

criminal conduct and society generally by avoiding

unwarranted or ill-considered accusations and by

shortening the time between the bringing of charges

and the defendant’s opportunity to secure a determi-

nation of the charges at trial.

2. These considerations strongly counsel against a

construction of the Due Process Clause obligating the

government to institute formal criminal proceedings

as soon as it might be thought to have probable cause

to do so. There is, in fact, little justification for per-

mitting courts to attempt to balance the various

interests implicated during the pre-accusatory phase

of criminal proceedings, since statutes of limitation

already perform that function. Absent extraordinary

226-327—76——-3

circumstances, not present in this case, “[s]uch legisla-

tive judgments are clearly entitled to great weight in

determining what constitutes unreasonable delay.”

Dickey v. Florida, 398 U.S. 30, 47 (Brennan, J., con-

curring).

3. Assessing the permissibility of pre-accusation

delay on a basically ad hoe basis would also entail un-

aeceptable costs to the criminal justice system, without

providing assurance of fairer results than those pro-

duced by application of the relevant statute of limita-

tions. Perhaps most importantly, an ad hoe approach

would require courts to engage in lengthy hearings

and to resolve a variety of essentially policy disputes

- that transcend the individual ease.

The decision in this case 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-

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

assurance 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. The enhanced ability

to make a sound assessment of claims of prejudice

after trial, combined with the substantial economy of

judicial and prosecutorial resources that will be accom-

plished by avoiding a lengthy pretrial hearing that

will be largely duplicative of the trial itself, prove the

soundness of the rule, which we urge this Court to

adopt, requiring that due process claims such as

respondent’s normally be resolved after trial.

ARGUMENT

A DEFENDANT SEEKING THE DISMISSAL OF CRIMINAL

CHARGES UNDER THE DUE PROCESS CLAUSE BECAUSE OF

PRE-ACCUSATION DELAY MUST SHOW BOTH THAT THE

DELAY IMPAIRED HIS ABILITY TO DEFEND AGAINST THF

CHARGES AND THAT THE GOVERNMENT SOUGHT TH)!

DELAY TO SECURE AN IMPROPER TACTICAL ADVANTAG!

A. IN THE ABSENCE OF PROSECUTORIAL CONDUCT DESIGNED TO OBTAIN

AN IMPROPER TACTICAL ADVANTAGE, THE PERMISSIBILITY OF PRE-

ACCUSATION DELAY IS GOVERN ED SOLELY BY THE APPLICABLE STATUTE

UF LIMITATIONS

In United States vy. 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 * * * en-

gage the particular protections of the speedy trial

provisions of the Sixth Amendment’’ (404 U.S. at

320). At the same time, Marion acknowledged that

pre-accusation delay might in some instances violate

the Due Process Clause of the Fifth Amendment and

require the dismissal of criminal charges. Specifically,

this Court referred approvingly to the government’s —

suggestion that the Due Process Clause would require

the dismissal of an indictment “if it were shown at

trial that the pre-indictment delay * * * caused sub-

stantial 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).

Several courts of appeals have had occasion in the

wake of Marion to consider the application of the

Due Process Clause to particular instances of pre-

accusation delay. The position of the Eighth Circuit

is exemplified by the decision in this case. The panel

majority held here that the showing required of a

defendant claiming a violation of due process because

of pre-accusation delay is limited to “‘two basic ele-

ments’’-—a demonstration that the delay was “un-

reasonable” and a showing that it prejudiced the de-

fendant’s ability to defend against the charges (Pet.

App. 5a). The majority then went on to hold that

the delay that occurred here was unreasonable because

the “essential’’ facts underlying the indictment were

known to the prosecutor approximately 17 months

prior to respondent’s indictment, and “[n]o reason

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’ (tbid.). In an earlier case,

United States v. Barket, 530 F.2d 181, a divided

panel of the Eighth Circuit had explained that pre-

accusation delay is “unreasonable” whenever the de-

fendant has been able to show that the delay was

caused by “governmental negligence’ (td. at 195).”

" Accord, United States v. Jackson, 504 F. 2d 337, 339-341 (C.A,

8), certiorari denied, 420 U.S. 964. In other recent cases, the Eighth

Circuit has explained that pre-accusation delay is “unreasonable”

if it is not affirmatively justified by the government and that “as

the delay increases, the specificity with which prejudice must ap-

pear, diminishes” (United States v. Naftalin, 534 F. 2a 770, 773,

The negligence standard adopted by the Eighth

Circuit in this and other recent cases renders this

certiorari denied, No. 75-1720, October 4, 1976). United States v.

Page, No. 76-1 ~*2, decided November 23, 1976 (slip op. 3) ; United

States v. Quinn, 540 F. 2d 357, 360-362 ; United States v. Librach,

520 F. 2d 550, 554-555; United States v. Norton, 504 F, 2d 342,

344-345, certiorari denied, 419 U.S. 1113; see also United States v.

Washington, 504 F. 2d 346, 347-348.

Three other circuits appear to agree with the Eighth Circuit

that a defendant claiming a violation of due process because of

pre-accusation delay need not show that the government delayed

accusation for improper tactical reasons. United States v. Sand,

541 F, 2d 1370, 1873-1374 (C.A. 9) ; United States v. Erickson, 472

F. 2d 505, 507 (C.A. 9) ; United States v. Wilson, 357 F. Supp. 619

(E.D. Pa.), affirmed, 517 F. 2d 1400 (CA. 3); United States v.

Dukow, 453 F. 2d 1328, 1830 (C.A. 3), certiorari denied sub nom.

Crow v. United States, 406 U.S. 945; United States v. Alred, 513

F. 2d 330, 332 (C.A. 6) ; United States v. Giacalone, 477 F. 2d 1273,

1276-1277 (C.A. 6). On the other hand, at least four circuits have

stated that they require such a showing, although they have not yet

been presented with a case in which the defendant has established

that the delay prejudiced his ability to defend. United States v.

Scallion, 533 F. 2d 903, 911-912 (C.A. 5) ; United States v. Duke,

527 F. 2d 386, 390 (C.A. 5), certiorari denied, June 21, 1976, No.

75-6564; United States v. Joyce, 499 F. 2d 9, 19-20 (C.A. 7);

United States v. Ricketson, 498 F. 2d 367, 370-871 (C.A.7) ; United

States v. Beitscher, 467 F. 2d 269, 272 (C.A. 10) ; United States v.

Daley, 454 F. 2d 505, 508 (C.A. 1).

The Secohd Circuit has expressly reserved ruling on the issue

presented here. 2.g., United States v. Vispi, No. 76-1250, decided

November 15, 1976 (slip op. 516-517 and n. 4); United States v.

Finkelstein, 526 F. 2d 517, 521. Using its supervisory powers “but

mindful of the due process overtones of the problem” (United

States v. Jones, 524 F. 2d 834, 840), the Court of Appeals for the

District of Columbia Circuit has adopted an approach to pre-

accusation delay in narcotics cases similar to that employed by the

Eighth Circuit in this case. £.g., Robinson v. United States, 459

F. 2d 847; Woody v. United States, 370 F.2d 214; Daniels v. United

States, 357 I. 2d 587; Bey v. United States, 350 F. 2d 467; Ross v.

United States, 349 F. 2d 210. Defendants - her types of cases in

the District of Columbia Circuitappar . _ -ust demonstrate both

prejudice and improper motivation oy the government. /nited

States v. Bridgeman, 523 F. 2d 1099, 1111-1112.

Court’s decision in Marion largely meaningless. The

Eighth Circuit has held in effect that the Due Process

Clause guarantees speedy accusations in much the

same way that the Sixth Amendment guarantees

speedy trials. Consistently with this view of the Due

Process Clause, the standard employed by. the court

for assessing the permissibility of pre-accusation delay

is the functional equivalent of the standard adopted

by this Court in Barker v. Wingo, 407 U.S. 514, for

assessing the permissibility of post-accusation delay.

In fact, in one recent case, United States v. Barket,

supra, the Eighth Circuit relied explicitly upon

Barker for the proposition that negligence or inadver-

tence by the government, delaying the obtaining of an

indictment and prejudicing the defense, violates the

Due Process Clause (530 F. 2d at 193).

But as Marion makes clear, the situation of a poten-

tial defendant does not compare with the situation

of a defendant who has been arrested and held to

answer or otherwise formally accused of criminal

conduct. The Eighth Cireuit’s approach to pre-accusa-

tion delay also ignores substantial public policies—

of benefit both to potential defendants and to society

as a whole—that that would be disserved by rules that

encourage premature public accusation of persons

suspected of having engaged in criminal conduct. The

standard employed by the Eighth Cireuit also involves

perhaps insuperable practical difficulties, without

providing assurance of more equitable results than

those produced by application of the relevant statute

of limitations.

1. The approach to pre-accusation delay exemplified by the deci-

cion in this case ignores significant differences in the status of

persons before and after formal accusation

This Court’s determination in Marion that the ob-

ligations imposed by the Sixth Amendment’s speedy

trial provision are triggered by formal accusation,

rather than by some prior act or omission attributable

to the government, was deeply rooted in the policies

subsumed by that guarantee—policies that cannot

casually be transferred to the due process inquiry in

cases of pre-aceusation delay. Despite the presump-

tion of innocence to which persons charged with

criminal offenses are entitled, the making of a formal

accusation—whether signified by arrest and holding

to answer or by the issuance of criminal charges—

almost inevitably alters the status of the subject to

his detriment. Arrest is a public act that carries the

implication that the government has probable cause

to believe that the person arrested has committed a

crime. The arrest and lodging of a criminal charge

“may seriously interfere with the defendant’s liberty,

whether he is free on bail or not, and * * * 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).”

* Accord, Dillingham vy. United States, 423 U.S. 64. When we

speak of an arrest triggering the protections of the Sixth Amend-

ment, we are referring of course to one followed by a formal com-

plaint and the holding of the arrested individual to answer crimi-

nal charges, as by being bound over to await the action of a grand

jury following a preliminary hearing. When an individual is ar-

The issuance of an indictment or information has pre-

cisely the same effects. Moreover, ‘‘[i]nordinate

delay between arrest, indictment, and trial may im-

pair a defendant’s ability to present an effective de-

fense”—although “the major evils protected against

by the speedy trial guarantee exist quite apart from

actual or possible prejudice to an accused’s defense”

(ibid.).*

Thus, once a person has been formally accused of a

crime, the Constitution explicitly enjoins the prosecu-

tion and the judiciary to proceed with “orderly ex-

pedition’”? (Smith v. United States, 360 U.S. 1, 10).

Determining whether a particular criminal prosecu-

tion has proceeded with orderly expedition or at an

appropriately “deliberate pace’? (United States v.

Ewell, 383 U.S. 116, 120) requires courts to engage in

a sensitive balancing process—taking into consideration

the length of the delay between formal accusa-

tion and trial, the reasons for the delay, the de-

fendant’s assertion of his right, and prejudice conse-

rested but then released without being held to answer criminal

charges, the protections of the Speedy Trial Clause would not at-

tach until formal charges are brought. £.g., United States v.

Bishton, 463 F. 2d 887, 891 (C.A. D.C.) ; but see United States v.

MacDonald, 531 F. 2d 196, 204-205 (C.A. 4), petition for a writ

of certiorari pending, No. 75-1892.

18 Indeed, as this Court pointed out in Barker v. Wingo, 407 U.S.

514, 521, delay in the prosecution of criminal charges actually may

operate to the defendant’s advantage at trial. Since the prosecution

carries the burden of proof, the prosecution is often more vulner-

able than the defense to any delay that results in the loss of rele-

vant evidence. See Dickey v. Florida, supra, 398 U.S. at 46 n. 10

(Brennan, J., concurring). Delay may also enable defendants “to

negotiate more effectively for pleas of guilty to lesser offenses and

otherwise manipulate the system” (Barker v. Wingo, supra, 407

U.S. at 519).

quent upon the delay. Barker v. Wingo, supra, 407

U.S. at 530-533. This balancing process must be car-

ried out “with full recognition that the accused’s

interest in a speedy trial is specifically affirmed in

the Constitution’? (id. at 533) and is of a “funda-

mental” nature (Klopfer v. North Carolina, 386 U.S.

213, 223)."*

Prior to formal accusation, the interests of a poten-

tial defendant and of a society concerned with the

even-handed enforcement of the criminal laws are

quite different. 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 * * *” (404 U.S. at 321). The impact on

job, family, and personal finances is generally non-

existent or far less severe prior to formal accusation

than after. Although the fact that criminal investiga-

tion is in progress may become known on occasion to

persons not involved in the investigation, any rumors

that may surface concerning the identity of potential

defendants seldom will be as damaging to those per-

sons as the act of formal accusation—which, because

of its official nature and the status of those responsi-

ble for it, will serve almost inevitably to transform

any preexisting rumor into apparently justified sus-

picion. Similarly, while we recognize that anxiety may

“ Accord, Dickey v. Florida, supra, 398 U.S. at 37; Smith vy.

Hooey, 392 U.S. 374, 375.

The period following formal accusation is now also governed by

the Speedy Trial Act of 1974, 88 Stat. 2076, 18 U.S.C. (Supp. IV)

3161 et seq., and local rules adopted pursuant to that statute. See

also Rule 50(a), (b), Fed. R. Crim, P.

226-327 —76-—4

be suffered by persons with knowledge of an ongoing

criminal investigation touching upon their activities,

that anxiety, in the usual case, is increased meas-

urably by formal accusation—with its heightened

prospect of a criminal trial and eventual punish-

ment. In sum, in most relevant respects the

situation of a potential defendant “does not com-

pare with that of a defendant who has been ar-

rested and held to answer’’ (United States v. Marion,

supra, 404 U.S. at 321) or charged formally with

criminal activity. Ci. Kirby v. Illinois, 406 U.S. 682,

689-691.

There is another, and quite significant, respect in

which the impact of pre-accusation delay on a poten-

tial defendant is different from the effect of post-

accusation delay on an actual defendant. During a

period of pre-accusation delay, whether such delay is

a product of further investigation of the case or simple

inertia, additional facts may come to light showing

that the person originally under suspicion was not

actually involved in the matter being investigated, that

no criminal conduct occurred, or that the case is an

appropriate one for a discretionary decision not to

prosecute.” Thus, delaying arrest or charge may serve

to avoid placing a suspect in the position of having

been accused publicly of criminal activity. Even if

** As this Court pointed out in Kirby v. lllinois, supra, 406 U.S.

at 689:

The initiation of judicial criminal proceedings is far

from a mere formalism. It is the starting point for our

whole system of adversary criminal justice. For it is only

then that the government has committed itself to prosecute,

ultimately indicted, moreover, the delay may shorten

the period between the bringing of charges and the

defendant’s opportunity to secure an acquittal on

those charges at trial.

Given these substantial differences in the status of

persons before and after formal accusation, this

Court’s refusal in Marion to extend the protections

of the speedy trial provision of the Sixth Amendment

to the period preceding formal accusation is readily

understandable.” Those considerations support the

basic thrust of this Court’s decision in Marion that

and only then that the adverse positions of government and

defendant have solidified. * * *

See also United States v. Finkelstein, supra, 526 F.2d at 526

(“The deliberate pace of the investigation redounded to society’s

benefit in two ways: it protected an innocent party and ferreted

out two who were culpable.”) ; United States v. Capaldo, 402 F.2d

821, 823 (C.A. 2), certiorari denied, 384 U.S. 989 (“It is usually

in the public interest, and frequently to the advantage of the

prospective defendant, that charges not be brought until the

prosecutor has completed his investigation and feels that there is

sufficient likelihood of gaining a conviction.”) ; United States v.

Feinberg, 383 F.2d 60, 64-65 (C.A. 2) (“Time-consuming investi-

gation prior to an arrest minimizes the likelihood of accusing

innocent parties and may facilitate the exposure of additional

guilty persons.”); United States v. Hauff, 395 F.2d 555, 557

(C.A. 7).

” Sins respondent did not become an “accused” until he was

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

Ruies of Criminal Procedure and the Sixth Amendment was mis-

placed. Respondent moved to dismiss the charges against him on

March 18, 1975 (A. 6-7), within two weeks of his indictment. The

delay of which he complained preceded his formal accusation and

consequently was not governed by Rule 48 of the Sixth Amend-

ment. See Dillingham v. United States, supra, 423 U.S. 64;

United States v. Marion, supra, 404 U.S. at 313, 319.

the government will not ordinarily be called upon to

justify pre-accusation delay. We believe that any

exception to this principle should be narrowly circum-

scribed, extending only, as the Marion opinion sug-

gests, to the rare case in which the defendant can

demonstrate that the delay stemmed from imvitious

motivations and caused substantial prejudice to his

defense.

2. The Due Process Clause does not require courts to consider on

an ad hoc basis the timeliness of criminal cherges that ave

brought within the applicable statute of limitations and are

not the product of prosecutorial overreaching

This Court has interpreted the Due Process Clause

as “a summarized constitutional guarantee of respect

for those personal immunities which * * * are ‘so

rooted in the traditions and conscience of our people

as to be ranked as fundamental’ * * * or are ‘implicit

in the concept of ordered liberty’ ” (Rochin v. Cali-

fornia, 342 U.S. 165, 169; citing Snyder v. Massa-

chusetts, 291 U.S. 97, and Palko v. Connecticut, 302

U.S. 319). The right to a fair trial is indisputably

fundamental in nature; it is, in fact, the goal of many

specific constitutional guarantees. And whether the

offending party has been a state or the federal gov-

ernment, the Due Process Clause has served to ensure

that criminal trials are conducted within the bounds

dictated by “fundamental fairness” (Duncan v.

Louisiana, 391 U.S. 145, 171, 186-187 (Harlan, J.,

dissenting) ) and the “community’s sense of fair play

and decency” (Rochin v. California, supra, 342 U.S.

at 173). See, e.g., United States v. Agurs, No. 75-491,

= ap

decided June 24, 1976; Brady v. Maryland, 373 U.S.

83.”

Although a defendant’s due process right to a fair

trial may be violated in certain circumstances despite

the absence of affirmative governmental overreaching

or bad faith (see United States v. Agurs, supra, slip

op. 12-13; Brady v. Maryland, supra, 373 U.S. at 87),

we know of no case not involving a breach of some

duty owed by the government to the defendant in

which this Court has found a violation of the Due

Process Clause. The requirement of due process does

not provide courts with a roving commission to oversee

performance by the Executive Branch of its law

enforcement responsibilities, exercising a ‘‘chancellor’s

foot” veto over acts or oissions that they consider

unjustified or undesirable. Cf. United States v. Russell,

411 U.S. 423, 435. Particularly in applying the severe

remedy of barring the prosecution of persons who are

charged with crime, a disciplined and circumscribed

exercise of judicial power is called for—one that looks

to “all the circumstances” (Hampton v. United States,

425 U.S. 484, 494 n. 6 (Powell, J., concurring). In the

instant context, the circumstances that must be taken

into account include those affecting persons having

to defend against criminal charges, to be sure, but also

those affecting the related, but somewhat broader,

** See also Jn re Winship, 397 U.S. 358, 359, and Jn re Gault,

387 U.S. 1, 30, interpreting the Fourteenth Amendment as requir-

ing the adjudicatory phase of state juvenile proceedings to be

conducted in accordance with “the essentials of due process and

fair treatment.” i

‘ *y

societal interest in public justice. Cf. United States v.

Mandujano, 425 U.S. 564, 590 (Brennan, J., concur-

ring).

A number of public policies strongly counsel against

a construction of the Due Process Clause obligating

the government to institute formal criminal proceed-

ings as soon as it might be thought to have probable

cause to do so. As already noted, such a require-

ment—which underlies the court of appeals’ decision

in the present case—ignores the possibility that deci-

sions to delay formal accusation pending further in-

vestigation may benefit potential defendants as well

as society generally, particularly if such investigation

reveals that the person originally under suspicion was

not involved in the matter being investigated or that

no criminal conduct occurred. Further investigation

may also result in the discovery of related or similar

criminal conduct by persons in addition to those

originally under suspicion. By ignoring these consid-

erations, the standard for assessing pre-accusation de-

lay employed by the court of appeals encourages

haste on the part of law enforcement personnel—at

the expense of deliberateness designed to avoid un-

justified accusations, of efforts to effectuate the

speedy trial mandate of the Sixth Amendment by

shortening the period between formal accusation and

trial, and of the obvious societal interest in requiring

persons guilty of criminal offenses to answer for their

conduct.” Indeed, so long as formal accusation is de-

* See, ¢.g., United States v. Feinberg, supra, 383 F. 2d at 67

(original emphasis) (“[F]ear of forfeiting a prosecution would

layed to permit further investigation, we believe that

such delay can never be considered unjustified. See

United States v. Watson, 423 U.S. 411, 431 (Powell,

J., concurring).

At the same time, the court of appeals’ definition

of ‘‘delay” puts proseeutors at risk of violating the

Fourth Amendment if they act too soon in arresting

persons suspected of criminal conduct and of violating

the Fifth Amendment if they wait too long and

evidence is lost fortuitously. This Court recognized

a similar dilemma in Hoffa v. United States, 385 U.S.

293. The petitioner in Hoffa, relying upon Escobedo vy.

Illinois, 378 U.S. 478, argued that since he would have

had a right to counsel under the Sixth Amendment

had the government taken him into custody and

charged him with an offense, he should have been

entitled to the same right at the moment the govern-

ment had sufficient evidence to de so. In rejecting that

argument, this Court stated (385 U.S. at 309-310) :

There 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

violation of the Fourth Amendment if they act

too soon, and a violation of the Sixth Amend-

ment 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

frequently induce wnreasonable speed which ‘would have a delete-

rious effect both upon the rights of the accused and upon the

ability of society to protect itself.’ ”).

probable cause, a quantum of evidence which

may fall far short of the amount necessary to

support a criminal conviction [Footnote omit-

ted].”°

It is exceedingly difficult to square this Court’s assess-

ment in Hoffa of the government’s responsibility for-

mally to accuse persons suspected of criminal con-

duet with the view of that responsibility taken by the

court of appeals in the present ease.

The court of appeals’ construction of the Due Proe-

ess Clause also would interfere in an unwarranted

manner with the functioning of the grand jury. The

“historic office” of the grand jury in our system of

criminal justice “has been to provide a shield against

arbitrary or oppressive action, by insuring that seri-

ous criminal accusations will be brought only upon the

considered judgment of a representative body of eiti-

zens * * *” (United States vy. Mandujano, supra, 425

U.S. at 571). It is essential to the successful perform-

ance of this function that the grand jury be afforded

hoth the means of pursuing evidence of criminal con-

duet and sufficient time in which to do so carefully and

(dispassionately; to those ends, the law has ‘‘vest[ed]

the grand jury with substantial powers, because ‘[t]he

grand jury’s investigative powers must be broad if

its public responsibiilty is adequately to be dis-

charged’ ” (id. at 7; citing United States vy. Calandra,

414 U.S. 338, and Branzburg v. Hayes, 408 U.S. 665).

Once the grand jury has returned an indictment

against an individual believed to have engaged in

This Court referred approvingly in Marion to the passage

from the opinion in Hoffa quoted above (404 U.S. at 325 n. 18).

criminal conduct, there may be substantial restric-

tions upon its power to inquire further into that

matter. See United States v. Doe, 455 F. 2d 1270, 1273

(C.A. 1). These limitations proceed from the fact that

the return of an indictment fundamentally alters the

status of the person accused and, consistently with

that altered status, changes the predominant character

of the proceedings from investigation to adjudication.

If the grand jury is required to act upon incomplete

information, following an investigation by the police

or prosecutor terminated prematurely at the point of

mere probable cause, the problems that concerned this

Court in Hoffa will be compounded appreciably. De-

cisions by the grand jury based upon less than com-

plete investigation can only increase the incidence of

unwarranted accusation, at the expense of persons

wrongfully accused, and at the same time permit some

of those guilty of criminal offenses to escape sanction

for their wrongdoing, at the expense of public justice.

And even if the grand jury is able to identify and

accuse those guilty of criminal conduct, the act of

formal accusation both restricts access by law en-

forcement personnel to additional evidence that may

be needed to prove guilt beyond a reasonable doubt—

particularly if that evic ence is possessed or controlled

by the defendant—and limits the time during which

such further investigation may take place. Cf.

Massiah v. United States, 377 U.S. 201.

We do not mean to suggest that the public policies

making delay in formal accusation, despite the exist-

ence of probable cause, a tolerable and often desirable

ingredient of the criminal process eliminates all con-

cern with expeditious enforcement of the criminal

laws.” But at least when pre-accusation delay is not

the result of overreaching by the government to gain

an improper tactical advantage, the Due Process

Clause does not require courts to consider on an ad hoe

basis the timeliness of criminal charges brought within

the applicable statute of limitations.”

*° The mere fact that a person may have been in a better posi-

tion to present an effective defense at the time the particular con-

duct occurred than he was at some later time is hardly sufficient,

of itself, to support the conclusion that tria] at such later time is

offensive to the Due Process Clause. As this Court observed in

United States v. Marion, supra, 404 U.S. at 324-825 (footnote

omitted), “no one suggests that every delay-caused detriment to a

defendant's case should abort a criminal prosecution.” In assessing

the significance of prejudice to the defense under the Due Process

Clause, it also is important to bear in mind that criminal defend-

ants often are required to respond to pending charges despite the

unavailability of evidence potentially useful to their defenses, For

example, although criminal defendants may subpoena witnesses to

testify on their behalf, they are not entitled to immunity from

trial simply because the person against whom the subpoena was

directed is beyond the jurisdiction of the court and refuses volun-

tarily to return or because the person cannot be located. Neither is

a defendant's right to a fair trial violated if persons believed to

possess luformation useful to the defense refuse to make that in-

formation available because of possible self-incrimination. See,

e.g., United States v. Morrison, 535 F. 2d 223, 228-929 (CLA, 3).

In all of these instances, the interest of the defendant in present-

ing the most effective defense possible is subordinated. consistently

with the Due Process Clause, to other interests of a more com pel-

ling nature.

** The fact that a showing of governmental overreaching or bad

faith is not required to gain a new trial following the suppression

of material evidence favorable to the defense (see United Ntates v.

Agurs, supra, slip op. 12-13; Brady v. Maryland, supra, 373 U.S,

at 87) does not support the proposition that pre-accusation delay

may offend the Due Process Clause even if not engaged in by the

One of the purposes of statutes of limitation, which

stand as “the primary guarantee against bringing

overly stale criminal charges” (United States v.

Ewell, supra, 383 U.S. at 122), is to guard against the

possibility that the passage of time may impair the

ability to mount an effective defense. They also serve

the more general function of balancing society’s inter-

est in equitable law enforcement and the interest of

potential defendants in not having to defend against

charges of long-past criminal conduct. In performing

these functions, statutes of limitation may have “‘the

salutary effect of encouraging law enforcement officials

promptly to investigate suspected «~iminal activity”

(Toussie v. United States, 397 U.S. 112, 115).* But

government to prejudice the defense. A conviction obtained fol-

lowing suppression by the prosecution of material evidence favor-

able to the defendant violates the Due Process Clause both because

of the direct connection between such conduct and the integrity

of the verdict and because the suppression of such evidence is

never justified by any overriding public policies. But unless the

prosecution has delayed accusation for the purpose of prejudicing

the defense, or perhaps proceeded in reckless disregard of circum-

stances known to it calling for the expeditious bringing of charges

(see n. 25 infra), the occurrence of prejudice to the defense because

of pre-accusation delay is simply fortuitous, And the remedy for a

Brady violation is the award of 9 new trial at which guilt or

innocene may be fairly determined, not the severe remedy of

barring adjudication of the charges that results from a finding

of impermissible delay. As noted, moreover, delaying formal

accusation beyond the point at which it might have been possible

to charge the defendant often serves substantial public policies

and benefits potential defendants.

2'The possibility that evidence may become unavailable and

thus successful prosecution may become more difficult if formal

criminal proceedings are delayed provides an additional, and often

quite strong, incentive to prompt action by law enforcement per-

sonnel. This diminishes the practical need for strict rules against

pre-accusation delay.

whether such investigation is fruitful or not, and

despite the possibility that in particular cases the

passage of time may not have prejudiced the ability

to present all relevant evidence, statutes of limitation

afford a measure of predictability by specifying the

point at which a general policy of repose outweighs

the desirability of further use of the criminal proc-

ess.” See, e.g., Bridges v. United States, 346 U.S. 209,

215-216.

*8 Even before the first ten amendments to the Constitution had

been ratified, Congress enacted a federal statute of limitations.

That statute imposed a three-year limit on the filing of charges

in capital cases and a two-year limit on the filing of charges in

non-capital cases. 1 Stat. 112, 119. In 1876, Congress extended the

general limitation applicable to non-capital offenses to three years

(19 Stat. 32, 33) and in 1954 extended it to five years (68 Stat.

1145, 18 U.S.C. 3282). In 1939, Congress removed the time limita-

tion as to treason and other capital offenses. 53 Stat. 1198, 62 Stat.

827; 18 U.S.C. 3281. See generally Note, The Statute of Limita-

tions in Criminal Law; A Penetrable Barrier to Prosecutions, 102

U. Pa. L. Rev. 630 (1954).

Congress also has enacted several statutes of limitation to

govern special circumstances and offenses. By the Act of March 26,

1804, 2 Stat. 290, Congress provided that indictments for offenses

arising under the customs and slave trade laws could be returned

at any time within five years of the commission of those offenses.

18 U.S.C. 3283. A statute enacted by Congress in 1914 bars prose-

cution for criminal contempt unless such prosecution is begun

within one year of the violation. 38 Stat. 740, 18 U.S.C. 3285. In

1921, Congress extended the general limitations period for de-

frauding the government from three to six years in recognition

of the fact that complex cases arising from World War I made

such extension necessary. 42 Stat. 220; H.R. Rep. No. 365, 67th

Cong., Ist Sess. (1921). After those cases had been disposed

of, Congress again shortened the limitations period to three years.

42 Stat. 51. During World War II, Congress enacted a special

Statutes of limitation thus represent a generalized

approach to the permissibility of pre-accusation delay

and reflect a legislative assessment of the fairness of

bringing the machinery of government to bear upon

individual citizens. In the usual case, judicial seru-

tiny of pre-indictment or pre-arrest delay under the

Due Process Clause, as this Court has interpreted that

constitutional provision, would involve the courts in

the same process. Whether pre-accusation delay were

judged by the courts in light of ‘‘fundamental fair-

ness” or the ‘‘community’s sense of fair play and

decency,” the courts would have to weigh the same

factors weighed by Congress in enacting statutes of

limitation. Absent extraordinary circumstances, not

present here, “‘[s]uch legislative judgments are clearly

entitled to great weight in determining what consti-

tutes unreasonable delay.’’ Dickey v. Florida, supra,

398 U.S. at 47 (Brennan, J., concurring).

statute of limitations governing fraud against the government in

time of war, suspending until the termination of hostilities the

three-year limitation applicable to those offenses. 56 Stat. 747; 58

Stat. 649, 667 ; 58 Stat. 765, 781; 18 U.S.C. 3287.

Certain tax offenses may be charged up to six years from their

commission, 68A Stat. 815, 26 U.S.C. 6531. The offense of conceal-

ing a bankrupt’s assets is deemed to be a continuing offense until

the bankrupt is finally discharged or discharge is denied. 62 Stat.

828, 18 U.S.C. 3284. In 1950, Congress enacted a statute providing

that violations of the espionage laws could be charged within ten

years of those offenses. 64 Stat. 1005, 18 U.S.C. 792 (note). Con-

gress extended the period for prosecuting passport offenses in 1951

after finding that most violations of the passport laws were not

discovered until after the previously applicable three-year limita-

tion had expired. 65 Stat. 107, 18 U.S.C. 3291; S. Rep. No. 384, 82d

Cong., 1st Sess. 1-2 (1951).

We acknowledge again, however—as we did in

Marion—that pre-accusation delay by the government

designed to deprive the defendant of a fair trial, and

having that effect, violates the Due Process Clause

even if the prosecution is brought within the appli-

cable statute of limitations. See, e.g., Dickey v. Flor-

ida, supra, 398 U.S. at 46, 51 (Brennan, J., con-

curring) ; Pollard v. United States, 352 U.S. 354, 361;

United States v. Provoo, 17 F.R.D. 183 (D. Md.),

affirmed per curiam, 350 U.S. 857." Statutes of limi-

tation represent a legislative balancing of legitimate

interests in fair and even-handed law enforcement;

they were not intended to immunize from constitu-

tional challenge law enforcement efforts, however un-

fair, occurring within the applicable limitations

period.

The fact that statutes of limitation “represent leg-

islative assessments of relative interests of the State

4 The reason that a defendant who is able to show that the gov-

ernment delayed accusing him to gain an improper tactical ad-

vantage must also demonstrate that the delay impaired his ability

to defend is simply to avoid conferring a windfall upon the de-

fendant at society’s expense. If the misconduct fails to achieve its

intended objective of depriving the defendant of a fair trial, the

Due Process Clause does not require the termination of the prose-

cution. The law has provided other remedies for such misconduct,

short of immunizing from even a fair trial one who may be guilty

of criminal conduct. See, e.g., 7mbler v. Pachtman, 424 U.S. 409,

428-429; O'Shea v. Littleton, 414 U.S. 488, 503; United States v.

Acosta, 526 F. 2d 670 (C.A. 5), certiorari denied June 7, 1976, No.

75-1368.

25 A due process violation might also be made out upon a show-

ing of prosecutorial delay incurred in reckless disregard of cir-

~—f-—->

3. A basically ad hoe approach to pre-accusation delay would

entail unacceptable costs to the criminal justice system without

providing assurance of fairer results than those produced by

application of the relevant statute of limitations

and the defendant in administering and receiving jus-

tice’? (United States v. Marion, supra, 404 U.S. at

322) does not, of itself, necessarily mean that courts

should refrain from reassessing those interests on a

case-by-case basis—even when prosecutorial miscon-

duct is not at issue. We believe, however, that there are

sound reasons why courts should refrain. A basically ad

hoc approach to the permissibility of pre-accusation de-

lay would entail enormous costs to the criminal justice

system—without, in the vast majority of cases, provid-

ing assurance of fairer results. Furthermore, an ad hoc

approach would require courts to engage in lengthy

hearings and to resolve a variety of essentially policy

disputes that transcend the individual case.

The difficulties inherent in a basically ad ho

approach to pre-accusation delay begin with the

need to ascertain at what point the government rea-

sonably might be charged with having “delayed”

formal accusation. The court of appeals’ decision in

the present case is premised in part on the notion

that ‘‘delay” chargeable to the government commences

cumstances, known to the prosecution, suggesting that there ex-

isted an appreciable risk that delay would impair the ability to

mount an effective defense. Nothing in this case suggests that re-

spondent could establish 9 delay of this nature.

whenever the government possesses sufficient evidence

to warrant submission to a grand jury. In many

cases, the making of such determination would in-

volve nearly insuperable problems of proof. Prose-

cutors can hardly be expected continuously to reassess

the status of individual cases as each new piece of

evidence is discovered. Neither can they be expected

in every case to keep detailed records from which it

could readily be ascertained when evidence accumu-

lated to the point of probable cause to believe that

a particular person committed the offense of which

he is later accused. And even if it were possible to

reconstruct the course of an investigation in the kind

of detail the court of appeals’ decision would require,

fixing the point at which the government might suc-

cessfully have sought an indictment would place courts

in the unenviable position of having to divine the

likely reaction of members of a hypothetical grand

jury to evidence possessed by the government at var-

ious points in time.”

*°In determining the point at which the government success-

fully might have sought an indictment against respondent, the

panel majority relied in part on testimony from the postal in-

spector responsible for investigating the thefts from the Terminal

Railroad Association. The posta] inspector had testified at the

hearing on respondent’s motion to dismiss to the effect that “he

would have recommended the prosecution of this case and pres-

entation 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” (Pet. App. 4a). Although such a recommenda-

tion may be useful to prosecutors in deciding whether and when

to seek formal charges, an investigating officer is not in a position

to make a valid assessment of the complex of factors that must

be considered in making such decisions. Consequently, a recom-

Given the court of appeals’ view of the Due Process

Clause, moreover, the court’s premise that delay

chargeable to the government begins whenever the

government possesses sufficient evidence to indict is

too restricted. If the court is correct in construing the

Due Process Clause as embodying a prompt accusation

requirement, it makes little sense to limit that duty

to government prosecutors. Potential defendants may

be adversely affected by “delay” in the discovery and

investigation of criminal conduct as well as by ‘‘delay”’

following the accumulation of evidence establishing

probable cause. In fact, since potential defendants

often do not learn that they may be called upon to

defend against criminal charges until the point at

which an investigation begins to focus upon them,

requiring such investigations to proceed efficiently and

expeditiously would seem to be an inevitable concom-

itant of the court of appeals’ approach.” The obvious

difficulties that would attend judicial efforts to super-

vise the conduct of criminal investigations, by

reviewing them at the behest of defendants after

mendation such as that relied upon by the panel majority is hardly

entitled to conclusive weight in determining the point at which

charges should have been brought.

27 Indeed, it is difficult rationally to distinguish respondent's

position from the position he would have been in had evidence of

the offenses charged in the indictment not been discovered for

seventeen months. But with the possible exception of the Eighth

Cireuit’s recent decision in United States v. Barket, supra, we

know of no case holding that a defendant’s right to due process

may be violated if evidence is lost during a period when the

prosecuting authority was unaware of the apparent violation of the

criminal] laws.

formal accusation and dismissing criminal charges

stemming from investigations not conducted with

satisfactory dispatch, would have serious import for

the administration of criminal justice. Cf. United

States v. Russell, supra, 411 U.S. at 435.

An additional difficulty inherent in recognition of a

general prompt accusation requirement under the Due

Process Clause is that lengthy hearings—similar in

character to the trial itself—would be necessary before

the pertinent determinations could be made with any

assurance. In fact, whether the court’s ultimate deci-

sion rested on the Sixth Amendment or the Fifth

Amendment, the practical problems that would be

created by efforts to identify the point at which the

police could have arrested or the prosecutor could

have charged would be essentially the same. As this

Court noted in Marion, in discussing those problems

in the context of the Sixth Amendment (404 U.S. at

321 n. 13; quoting approvingly from American Bar

Association Project on Minimum Standards for Crim-

inal Justice, Standards Relating to Speedy Trial 23

(Commentary to Rule 2.2(a), p. 23 (Approved Draft,

1968) ) :

To recognize a general speedy trial right com-

mencing as of the time arrest or charging was

possible would have unfortunate consequences

for the operation of the criminal justice system.

Altowing inquiry into when the police could

have arrested or when the prosecutor could

have charged would raise difficult problems of

proof. As one court said, “the Court would be

engaged in lengthy hearings in every case to

determine whether or not the prosecuting

authorities had proceeded diligently or other-

wise’’ [United States v. Port, Crim. No. 33162

(ND Cal., June 2, 1952) ; quoted in Note, Justice

Overdue—S peedy Trial for the Potential Defen-

dant, 5 Stan. L. Rev. 95, 101-102 n. 34].

The Eighth Circuit’s approach to pre-accusation

delay ignores the considerations discussed above and

requires courts to attempt to pinpoint the precise

moment at which the government might successfully

have sought an indictment. It then holds society

accountable, by the stringent measure of dismissing

the pending criminal charges, for the loss thereafter

of evidence favorable to the defense. In addition to

involving perhaps insuperable practical difficulties,

this approach to pre-accusation delay would upset the

balance struck by Congress in enacting statutes of

limitation—a balance that takes into account the

variety of institutional considerations that may delay

formal accusation, recognizes that some delay between

the commission of offenses and the bringing of cha” ves

is a necessary and desirable part of the criminal

process, and, after the expiration of a fixed period of

time, eliminates further exposure to criminal sanction

for those acts Congress has proscribed. Absent a

showing that the government delayed formal accusa-

tion to secure an improper tactical advantage over the

accused, we submit that the bringing of criminal

charges within the period allowed by the applicable

statute of limitations comports with the requirements

of due process.

B. ANY PRE-ACCUSATION DELAY THAT OCCURRED IN THIS CASE DID NOT

VIOLATE THE DUE PROCESS CLAUSE

The statute of limitations applicable to the offenses

for which respondent was indicted authorizes the

bringing of criminal charges at any time within five

years following the commission of those offenses. 18

U.S.C. 3282. As already noted, the indictment was

returned within 20 months of the dates of the alleged

offenses. Respondent has neither alleged nor sought

to show that the government delaved charging him in

order to secure an improper tactical advantage.” Jn

these circumstances, we submit that the timeliness of

the charges against respondent was governed solely by

the applicable statute of limitations and that the

courts below therefore erred in dismissing certain of

those charges because of pre-accusation delay.

In holding that the government had delayed un-

reasonably in charging respondent, the panel iajority

acknowledged that the government was_ seeking

during the period of the “delay’’ to identify per-

sons in addition to respondent who may have par-

ticipated in the offenses specified in the indictment

(Pet. App. 5a). Moreover, the three counts of the

** 18 U.S.C. 3282 states that, “[e]xcept as otherwise expressly

provided by law, no person shall be prosecuted, tried, or punished

for any offense, not capital, unless the indictment is found or the

information is instituted within five years next after such offense

shall have been committed.”

** Neither did respondent allege or seek to show that the govern-

ment had misled him into believing that he would not be charged

and that he had relied upon that belief to his detriment (see Pet.

App. 9a (Henley, J., dissenting) ).

* We stress again our belief that a decision by the government

to delay formal accusation pending further investigation should

never be considered to violate due process standards. See discussion

at pp. 24-25, supra.

indictment dismissed by the court charged respondent

with unlawfully possessing eight handguns stolen

from the mails, in violation of 18 U.S.C. 1708 (A.

3-4). An essential element of the government’s affirm-

ative case with respect to those offenses was proof

that respondent had known that the handguns were

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

847. Respondent admitted that he had possessed

the handguns, but he denied having known that they

had been stolen (A. 24). Although the government

believed otherwise, it did not have ...rect evidence of

respondent’s guilty knowledge. The theory upon which

the government was proceeding, supperted only by

cireumstantial evidence, was that respondent’s son

had stolen the guns and had given them to respondent

to sell (see n. 7, supra).

Thus, this is not a case in which the government

possessed at some point overwhelming evidence show-

ing that a particular individual had engaged in crimi-

nal conduct—and in which ensuing pre-indictment

delay thus might have been consistent with an asser-

tion that the purpose of the delay was to secure an

improper tactical advantage. It is hardiy improper

for the government to delay formal accusation until it

has evidence demonstrating with fair assurance that

the person believed to have committed a criminal

offense did so in fact. Indeed, as Mr. Justice Powell

has pointed out, “[g]ood police practice often requires

postponing an arrest, even after probable cause has

been established, in order to * * * develop further

evidence necessary to prove guilt to a jury’? United

States v. Watson, supra, 423 U.S. at 431 (concur-

ring). In light of respondent’s failure to allege in his

motion to dismiss that any delay in accusing him was

improperly motivated, and in the absence of evidence

showing that it was so motivated, any pre-accusation

delay that occurred here did not offend the Due Pro-

cess Clause.

II.

A DISTRICT COURT SHOULD RESERVE RULING ON A DUE

PROCESS CLAIM BASED UPON PRE-ACCUSATION DELAY,

AND ALLEGING BOTH GOVERNMENTAL MISCONDUCT AND

CONSEQUENT PREJUDICE, UNTIL THE CONCLUSION OF

TRIAL

The decision in this case also departs from pre-

viously accepted standards by endorsing a procedure

for resolving due process claims based upon pre-accu-

sation delay that, in practical effect, significantly

dilutes the requirement that the defendant demon-

strate that the delay caused actual and substantial

prejudice to his ability to defend against the charges.

While it may sometimes be feasible, and not unduly

burdensome, for a court to determine with assurance

prior to trial whether the government sought to delay

formal accusation in order to secure an improper

tactical advantage, the same will seldom be true of

allegations of defense prejudice. At a minimum, re-

quiring the government to respond, prior to trial,

to allegations that a particular delay impaired the

accused’s ability to defend against the charges will

require a dress rehearsal of the trial itself. The

resulting expenditure of judicial and prosecutorial

resources, the delay in commencement of the trial,

and the inevitable inconvenience to witnesses and

others, is not required to vindicate the policies

served by the Due Process Clause.”

Although the Due Process Clause provides a basis for

reversing criminal convictions resulting from trials

lacking in fundamental fairness, it does not ordinarily

afford any protection against being required to stand

trial.** Due process claims based upon pre-accusation

delay are, in that respect, significantly unlike a num-

ber of other constitutional claims arguably invoking

a right not to be tried “—claims that are, as a conse-

quence, appropriately dealt with by trial courts when-

ever possible prior to trial (cf. Cohen v. Beneficial

** Our concern here is with claims of pre-accusation delay that

allege both governmental misconduct and consequent prejudice to

the defense. If we are correct in believing that the Due Process

Clause is not violated unless there has been both governmental

misconduct and defense prejudice, a motion that fails to allege

either misconduct or prejudice should of course be denied by the

court prior to trial.

*? As t.us Court noted in Cobbledick v. United States, 309 U.S.

323, 325, although “[a]n accused is entitled to scrupulous observ-

ance of cowstitutional safeguards”, “[b]earing the discomfiture

and cost of a prosecution for crime even by an innocent person is

one of the painful obligations of citizenship.” Cf. Frisbie v. Collins,

342 U.S. 519.

** As assertion that trial would offend the Double Jeopardy

Clause is perhaps the clearest example of a claim invoking a right

not to be tried, See Breed v. Jones, 421 U.S. 519, 5382-533; Green v.

UV nited States, 355 U.S. 184, 187-188. Other claims arguably of a

similar nature include claims under the Speech and Debate Clause

(Article I, See. 6, cl. 1), which provides that a member of Con-

gress “shall not be questioned in any other Place” for his official

acts (see Lastland v. United States Servicemen’s Fund, 421 U.S.

491; cf. Gravel v. United States, 408 U.S. 606) ; a claim that trial

is part of an effort on the government’s part to “chil]” the exercise

Industrial Loan Corp., 337 U.S. 541, 546). Motions

seeking relief from pre-accusation delay allegedly

offending the Due Process Clause are, moreover, vir-

tually unique in the extent to which their resolution

depends upon events of the trial itself.

Motions filed by defendants prior to trial (apart

from those involving some aspect of discovery) gen-

erally seek either to avoid trial because of an alleged

defect in the institution of the proceedings or to bar

the admission of certain evidence. Rule 12(e) of the

Federal Rules of Criminal Procedure requires trial

courts to rule upon all such motions before trial, unless

the court has “good cause” for deferring its deter-

mination.” Since most pre-trial motions can be dealt

with almost as easily prior to trial as after trial, and

since the parties have a shared interest in avoiding the

occurrence at trial of prejudicial error, good cause

seldom exists for reserving ruling. For example, a

court confronted with a claim that a search and seizure

violated the Fourth Amendment or that a confession

was obtained illegally can focus its inquiry quite

narrowly on the specific events surrounding the search

of First Amendment rights (see Dombrowski v. Pfister, 380 U.S.

479; cf. Allee vy. Medrano, 416 U.S. 802); and claims that the

prosecution is racially discriminatory (cf. Oyler v. Boles, 368 U.S.

448; Vick Wov. Hopkins, 118 U.S. 356).

* Rule 12(e) of the Federal Rules of Criminal Procedure pro-

vides in pertinent part that “[a] motion made before trial shall be

determined before trial unless the court, for good cause, orders

that it be deferred for determination at the trial of the general

issue or until after verdict, but no such determination shall be

deferred if a party’s right to appeal is adversely affected.” Because

of this provision, motions challenging pre-accusation delay should

not be granted during trial.

and seizure or the giving of the confession. In ruling

upon such claims, moreover, the court need be apprised

of the details of the offense with which the defendant

is charged only insofar as those details bear upon the

admissibility of the particular evidence at issue. Even

more importantly, failure to rule upon such claims

in a timely fashion may impair the government’s right

to appeal an adverse ruling, in violation of Rule 12(e)

of the Federal Rules of Criminal Procedure, or inject

reversible error that would require a second trial in

the event the defendant is convicted. Moreover, events

of the trial are unlikely to affect the appropriate

disposition of most Rule 12 motions.

A motion to dismiss charges under the Due Pr ‘ss

Clause berause of pre-accusation delay presents a

quite different situation. Even if the government

delayed accusation in an effort to obtain an improper

strategic advantage, the defendant is not entitled to

have the charges against him dismissed unless he

can demonstrate that the delay substantially pre-

judiced his ability to defend against the charges.

United States v. Marion, supra, 404 U.S. at 324-326;

and see n. 24, supra. But making that determination

prior to trial inevitably entails considerable specula-

tion about the nature and impact of evidence claimed

to have been ‘“‘lost” to the defense and the strength

and character of the evidence available to the govern-

ment at trial.

The issue of prejudice thus can be reliably deter-

mined only by reviewing all the evidence available

to both sides—that is by the trial itself or by having a

“trial-before-the-trial.” The latter course is undesir-

able in various respects. The evidence introduced by

the government at trial may establish the defendant’s

guilt so overwhelmingly that the loss to the defense

of certain evidence is plainly harmless beyond a rea-

sonable doubt. Yet, prior to trial the loss of such evi-

dence may well appear to have prejudiced significantly

the defendant’s ability to defend himself. Conversely,

the evidence available to defense, despite any pre-

accusation delay that has occurred, may be sufficient to

persuade the jury that the government has not proved

the defendant guilty beyond a reasonable doubt of the

offenses with which he stands charged. The resulting

acquittal would obviate any need for the court to rule

on the defendant’s due process claim.” At the same

time, the prejudice asserted by the defendant based

upon the loss of evidence may prove, in light of the

evidence actually introduced at trial, to be unfounded

because the government’s theory of the case was other

than originally assumed by the defense. The loss of

particular evidence thus may be harmless because of

its lack of materiality to the facts actually in issue at

trial.”

*° As Judge Henley pointed out in the present case (Pet. App.

10a-Ila) :

If [respondent] 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 de-

prived [respondent] of the benefit of Stewart’s testimony.

As it is, [respondent] simply goes free without trial.

*° In our judgment, the same considerations ordinarily caution

against attempting to resolve prior to trial speedy trial claims

The dangers inherent in attempts to resolve due

process claims prior to trial are, in fact, graphically

illustrated by the decision in this case. At best, the

finding of the panel majority on the issue of defense

prejudice rests upon unsubstantiated speculation con-

cerning both the nature and strength of the govern-

ment’s case against respondent and respondent’s an-

ticipated defense.” Respondent made no effort at the

under the Sixth Amendment. Unlike due process claims based

upon pre-accusation delay, a demonstration of prejudice to the

defense is neither “a necessary [n]or sufficient condition to the

finding of a deprivation of the right of speedy trial” (Barker v.

Wingo, supra, 407 U.S. at 533). But at least when the delay, at-

tributable to the government, between formal accusation and trial

is not so excessive that only minima] prejudice need be shown, we

believe that resolution of a defendant’s speedy trial claim should

await conclusion of the trial. But see United States v. MacDonald,

531 F. 2d 196 (C.A. 4), petition for a writ of certiorari pending,

No, 75-1892.

** While we disagree with the determination that actual and sub-

stantial prejudice was established, we have not asked this Court to

review that essentially factual conclusion, but rather the broader

question of whether it was proper for the court to have attempted

to resolve that issue prior to trial.

It is clear, however, that respondent’s showing 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 that memories of

others had faded held to constitute an insufficient showing of

prejudice absent evidence of their potential utility to the defense) ;

United States v. Galardi, 476 F. 2d 1072, 1075 (C.A. 9) (unexpli-

cated claim that missing person might have been useful to the de-

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

at 1330 (deaths of two potential witnesses insufficient to estab-

lish prejudice where the defense failed to show what their testi-

mony would have been).

hearing on his motion to dismiss to explain what in-

formation his brother or Tom Stewart might have

provided that would have been favorable to his de-

fense. In finding that respondent’s ability to defend

had been impaired by Stewart’s death, the majority

below relied upon the contention of respondent’s

counsel in brief and argument—but not made at or

supported by the testimony at the hearing—that

“were Stewart’s testimony available it would support

[respondent’s] claim that he did not know that the

guns were stolen from the United States mails” (Pet.

App. 5a).

But respondent testified at the hearing that he had

purchased from Stewart only “‘two or three” (A. 13)

of the eight guns specified in the indictment, and it is

by no means clear that Stewart would have been will-

ing to testify on respondent’s behalf.” As Postal In-

spector Wellner’s report indicates, moreover, the per-

son to whom respondent sold all eight of the guns

(Joe Boaz) admitted during questioning that he had

** To establish a violation of 18 U.S.C. 1708, the government

need only show 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, supra, 412 U.S. at 847.

*° As Judge Henley pointed out in his dissenting opinion (Pet.

App. 10a):

Had Stewart taken the stand and undertaken to exculpate

[respondent], he doubtless would have been required to ex-

plain his own connection, if any, with the pistols in ques-

tion, and that connection may well have been highly

culpable. [Respondent] 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

accommodate [respondent ].

known that the guns were “hot” when he resold them

(A. 24). At trial, Boaz presumably would have been

asked from whom he received that information, and

since he had purchased the guns from respondent, the

answer could well have shown that respondent also

knew that the guns had been stolen.

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 ease, as-here, the defendants relied

“solely on the real possibility of prejudice inherent

in any extended delay: that memories will dim, wit-

nesses become inaccessible, and evidence be lost” (404

US. at 325-326). This Court concluded, however, that

while “[e]vents of the trial may demonstrate 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 judicial and prosecu-

torial resources that will be accomplished by avoiding

a lengthy pretrial hearing that inevitably will be

largely duplicative of the trial itself (ef. United States

v. Calandra, supra, 414 U.S. at 349-352; United States

v. Dionisio, 410 U.S. 1, 17), prove the soundness of

*° Claims of defense prejudice based upon pre-accusation delay

are easy to make and exceedingly difficult to refute, particularly

prior to trial. As Judge Henley pointed out in his dissent in the

present case (Pet. App. 9a-10a) :

The record and the briefs disclose that the indictment

was returned on March 6, 1975; on March 18, 1975 [respon-

the rule, which we urge this Court to adopt, requiring

that claims of prejudice such as respondent’s normally

be resolved after trial.”

dent] filed his motion to dismiss; and a hearing was held

on the motion on April 25, 1975. In his brief counsel for

[respondent] 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 [respondent },

if he ever was, when the motion was filed. Nevertheless, 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 that [respondent] had suf-

fered “anxiety and concern” since his statement had been

ttaken in 1973. The name of Stewart seems to have come up

for the frst time when [respondent ] testified in support of

his motion. In the circumstances, one may suspect that the

claim of prejudice based on the death of Stewart was noth-

ing but a fabrication, and that had Stewart been alive | re-

spondent] could just as well have relied on the recent death

of any other of his acquaintances, claiming that he had in-

nocently acquired the pistols from that acquaintance.

Even when the prospect of a favorable ruling is de minimis,

the practice of ruling prior to trial on motions such as respondent's

provides defendants with a powerful incentive for filing such mo-

tions. The motion may be denied following a pre-trial hearing,

but the defendant will have obtained a preview of the government’s

case in the form of evidence showing that the defendant could not

have been prejudiced by any pre-accusation delay that occurred.

Thus, motions such as respondent’s may serve to avoid restrictions

on the discovery permitted criminal defendants prior to trial. See,

e.g., 18 U.S.C. 3500; Rule 16, Fed. R. Crim. P.; ef. United States

v. Mandujano, supra, 425 U.S. at 595 n. 12 (Brennan, J., concur-

ring).

*1 In the event of a guilty verdict, trial courts could rule on mo-

tions such as respondent’s, as well as any other motions deferred

for good cause, prior to entering judgment on the verdict.

CONCLUSION

For the reasons stated, it is respectfully submitted

that the judgment of the court of appeals should be

reversed and the case remanded with instructions to

reinstate the indictment.

Rosert H. Bork,

Solicitor General.

Ricwarp L. THORNBURGH,

Assistant Aitorney General.

ANDREW L, Frey,

Deputy Solicitor General.

JOHN P. Rupp,

Assistant to the Solicitor General.

JEROME M. Fer,

Rosert H. Praxico,

ios en Attorneys.

U.S. GOVERNMENT PRINIING OFFICE, 1976

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