# Petitioners Brief — United States v. Lovasco > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0130%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1977 - **Citation:** 431 U.S. 783 ## Text 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 | ¥ a] Unirep States 0F AMERICA, PETITIONER v. 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 CE PE innaticcdicisincodnnsanpametntndanniiicnn SUED edintbidnciinrenpenddmecnnsbetinin mein IE eniererercasenetnctqincsaneesseonia SED . dertinindineniinreectnnpeudinneeititgiinpysiiditnin UES GE GE ocpninnicnceecdnenannmassdwcouin 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 13 13 17 II 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 TV 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 Vv 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 vi 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 4 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 v. 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) 2 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- 3 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 4 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). 5 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). 6 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). 7 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. 8 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. 10 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, 11 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 12 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. I. 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- 13 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 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 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[ ] 14 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, 15 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. 16 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. 17 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- 18 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). ly 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 20 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, 21 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. 22 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 23 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 24 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 25 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.’ ”). 26 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). 27 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- 28 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 29 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. 30 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 31 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). 32 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-—-> ge 33 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. 34 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- 35 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. 36 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 37 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. 38 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. 39 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 40 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, 41 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 42 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. 43 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 44 “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 40 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). 46 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 ]. 47 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- 48 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. 49 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0130%3A4. Public record. Not legal advice.