# Petition — MacDonald v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 961

## Text

, Supreme Court, U.S eT! |
FILED "7

JAN 28 1979

|

ICH DAK, JR.,

In the Supreme Court 7 ee
United States

OcroBEr TERM, 1978

PU veces rt 8-1156

JEFFREY R. MacDona.p,
Petitioner,
Vv.

Unirep States or AMERICA

Petition for A Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit

Bernarp L. SEGAL

536 Mission Street, Suite 220

San Francisco, California 94105 *
MicHaret J. MALLEY

222 N. Central Avenue
Phoenix, Arizona 85004

Counsel for Petitioner

Of Counsel:

Kennetu A. LETZLER
1229 Nineteenth Street, N.W.
Washington, D.C. 20036

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

INDEX

Page

EE ETE, SE ha TR TO CIE 1
a a enacipaed sdsiglibdbthionnnibabeonshsoabesason 2
i a caeinicneneniibile 2
Constitutional and Statutory Provisions Involved ........ 3
on wceeosiswecnovaneiinalisapecsasio 3
Nature and Course of the Proceedings ......................-- 3
SO NE NR I scien cc erevsevesiogvinasncnsnsseonasiones 4)
Reasons for Granting Petition .....0..0.0...........:ccsscssssceeeeeees 12

I. The Cireuit Court’s Decision Regarding the
Applicability of the Doctrine of Collateral
Kistoppel to This Case Is in Direct Conflict with
the Holdings of This Court Dating Back to
DO IE EEA oN Pied CN EE 12

Il. The Cireuit Court’s Opinion Is in Conflict with
the Decision of the Second Circuit Regarding
Criteria for Applying the Doctrine of Colla-
ETL oa a 18

Ill. The Fourth Circuit’s Current Opinion Under-
mines Important Policies Embodied in the Uni-
form Code of Military Justice and the Manual
I iio eencsnpnnnsucceoneniiniossteronnpe 21

IV. The Fourth Circuit’s Decision Allows the Gov-
ernment to Ignore Longstanding Government
Policies Which Allocate Jurisdiction to One

ii INDEX

Page
Agency of Government—Here, the Military—

and Preclude Other Agencies of the Govern-
ment from Repeatedly Harassing Defendants

Who Have Already Defended Themselves ........ 23
See Ae HTT MR 2S A Atl AEN 26
PRE siecle aicienise eas tecdenmaesceneainidinieno dre follows page 26

CITATIONS
Casrs Pages
Ashe v. Swenson, 397 U.S. 436 (1970) ...................sceceeee 14

Blonder-Tongue Laboratories, Ine. v. University of
Illinois Foundation, 402 U.S. 313 (1971) 2002. 16, 20

Lummus Company v. Commonwealth Oil Refining Co.,

280 F.2d 915 (1st Cir.), rehearing denied, 280 F.2d

932, cert. denied, 364 U.S. 911. (1960) ........................ 18
Lummus Company v. Commonwealth Oil Refining Co.,

297 F.2d 80 (2d Cir. 1961), cert. denied, 398 U.S.

| ENR GS IAACR AO NE 18, 19, 20
Parklane Hosiery Company, Inc. v. Shore, — U.S. —,

47 L.W. 4079 (decided January 9, 1979) ......022..2.....--. 20, 21
Petite v. United States, 361 U.S. 529 (1960) 0020... 25
United States v. Cunningham, 12 USCMA 402, 30

Re ea ishlentsabeutibetensaiohiinn 22
United States v. MacDonald, 531 F.2d 196 (4th Cir.

1976), rev’d, 435 U.S. 850 (1978) 2... ete eccccseceees passim
United States v. Nichols, 8 USCMA 119, 283 CMR 348

EIT OY a doisscoussihcashiekcceapuistiedsieadensieidlacsadioghdbbensniitabcbescedtvtaginiinobaiee 22
United States v. Oppenheimer, 242 U.S, 85 (1916) ....passim
United States v. Rabinowich, 238 U.S. 78 (1915) ........ 13
United States v. Tomaszewski, 8 USCMA 266, 24 CMR

pS PERE J SNIPE COY dtr Soa a ee ON SO 16, 22
United States v. Utah Construction & Mining Co., 384

Ts OID) Geicaenndin Ais tbitdeah csinesnnigdllccinemnsseiazeasansacnty passim

CoNSTITUTION AND STATUTES
United States Constitution:

I I ii ot lac rsdsiisilchensccidbeddantieninsonaninani passim
Uniform Code of Military Justice (UCMJ),
rr a TN aia ocacnarnsincennsnnbiontnovinvenn passim

Be te IIE Ailinieeeab acne ciiichianoceainaaeninariannentiiemnnstinienens 6

iv CITATIONS

MISCELLANEOUS
Pages
Everett, R., Military Justice in the Armed Forces of
the Unsted Bonbon CHRGG) sci cicascitesiss titiconticesens 22
Manual for Courts-Martial (U.S. rev. ed. 1969) .......... 21
Military Justice Handbook, Dept. of Army Pamphlet
27-8, 28 GD (TOE) necetsschsicece senna ea Attateeninieisina 11

Pertinent Extracts from Memorandum of Under-
standing Between the Departments of Justice and
Defense Relating” to the Investigation and Prose-
cution of Crimes Over Which the Two Departments
Have Concurrent Jurisdiction, Army Regulation
AR 27-10, Military Justice, November 26, 1968,

CR. 7 ...nccccennsniiaaee pisincpeadamtthiceiapRiinatiipaiens 24

Snee & Pye, Status of Forces Agreements—Criminal
Jurisdiction (1957)

In the Supreme Court of the
United States

Octoprer TERM, 1978

WE eee

JEFFREY R. MacDonatp,
Petitioner,
V.

Unirep STatTEes oF AMERICA

Petition for A Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit

Jeffrey R. MacDonald prays that a Writ of Certiorari
be granted to review the judgment of the Court of Appeals
for the Fourth Cireuit entered in United States v. Mac-
Donald, — F.2d — (Nos. 75-1870, 1871), October 27, 1978.

OPINIONS BELOW

The order of the District Court for the Eastern District
of North Carolina, Fayetteville Division, denying, inter
alia, a Motion to Dismiss Indictment Because of Double
Jeopardy and Collateral Estoppel, is unreported. It was
entered on July 28, 1975 and is set forth in the appendix
to this Petition, infra (App. at pp. 3-4).

2

The opinion of the Fourth Cireuit Court of Appeals in
which that court deciined to decide the double jeopary/
collateral estoppel issue in light of its decision on the
speedy trial question is reported at 531 F.2d 196 (4th Cir.
1976), and is set forth in the appendix to this Petition,
infra (App. at pp. 7-41).

The decision of this Court reversing the Court of Appeals
for the Fourth Cireuit in United States v. MacDonald, id,
is reported at 435 U.S. 850 (1978).

The opinion of the Court of Appeals for the Fourth
Circuit on Remand from this Court is reported at .... F.2d ....
(4th Cir. 1978), and is set forth in the appendix to this
Petition, infra (App. at pp. 42-43).

JURISDICTION

Final briefs were submitted in the court below by the
parties on October 12, 1978. Without hearing oral argument
the court of appeals on October 27, 1978 denied Petitioner’s
appeal in a 3-page decision. His petition for rehearing, with
suggestion for rehearing en banc, was denied on November
24, 1978.

On December 15, 1978, Chief Justice Warren Burger
granted Petitioner’s application for an extension of time
in which to file a petition for Writ of Certiorari, extending
the filing date for this petition to and including January
23, 1979.

The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).

QUESTION PRESENTED
Is the indictment in the present case barred by the
principles of res judicata and collateral estoppel as incor-
porated into the Fifth Amendment’s guarantee against

3
double jeopardy, as of the result of the military justice
proceedings in 1970 which fully exonerated the Petitioner
and found-that the charges against him were “not true?”

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States Constitution
provides:

No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation,

STATEMENT OF THE CASE
Nature and Course of the Proceedings

The Petitioner, Dr. Jeffrey R. MacDonald, is charged
in a single indictment (No. 75-26-CR-3 of the Eastern Dis-
trict of North Carolina) in three counts with the murders
of his wife and two small children on February 17, 1970, at
Fort Bragg, North Carolina. He is charged with violation
of Title 18, United States Code, Section 1111.

The criminal proceedings against Dr. MacDonald were
commenced on May 1, 1970, when he was arrested by mili-
tary authorities, formally charged with the murders of
his family by the United States and placed in confinement.
The arrest took place at Fort Bragg, North Carolina, where
Dr. MacDonald was serving as a medical officer in the
United States Army.

4

Proceedings under Article 32 of the Uniform Code of
Military Justice were commenced on May 15, 1970, and
continued until October 18, 1970, when the Article 32
officer filed his report, including his principal finding that
the charges against Dr. MacDonald were “not true.”

On October 23, 1970, the commanding general who had
the court martial authority in the matter entered an order
dismissing the charges against Dr. MacDonald.

On January 24, 1975 Dr. MacDonald was indicted in the
district court. Following a bail reduction hearing, he was
released on bond.

On April 8, 1975, he filed pretrial motions in the district
court to dismiss the indictment because of the denial of
a speedy trial and because of double jeopardy arising out
of collateral estoppel.

On July 29, 1975, the district judge denied the motions
to dismiss and that order was appealed to the Court of
Appeals for the Fourth Circuit.

The court of appeals entered an order on January 23,
1976, directing the dismissal of the indictment because of
the government’s failure to accord Dr. MacDonald a speedy
trial as required by the Sixth Amendment. It withheld a
ruling on the double jeopardy issue and stated:

MacDonald claims that General Flanagan’s acceptance
of his exoneration in the Article 32 hearing collaterally
estops the government from prosecuting him again.
Alternatively, he argues that the second prosecution
places him in double jeopardy. The government argues,
however, that the Article 32 proceedings did not place
MacDonald in jeopardy since only a court martial,
which was never convened, could have convicted him.
Decision of this aspect of the case depends largely on
the legal effect of the acceptance of an Article 32 recom-
mendation by the commanding officer. It appears that

5

custom imputes finality to the commanding officer’s
decision. This would arguably sustain a plea of col-
lateral estoppel, if not double jeopardy, but no military
regulation or case specifically deals with this question.
In view of the unsettled state of this point of military
law and of our Cisposition of the ease under the speedy
trial provision of the Sixth Amendment, we find it
unnecessary and imprudent to render an opinion, which
would in effect be advisory, on an issue of general
importance to military law. United States v. Mac-
Donald, 531 F.2d 196, at 209 (1976), rev’d, 485 U.S. 850
(1978).

The government then petitioned this Court for certiorari
on the questions of the appealability of a pretrial motion to
to dismiss for denial of a speedy trial and also on the merits
of the speedy trial decision. On May 1, 1978, this Court
reversed the judgment of the court of appeals holding the
speedy trial motion not appealable pretrial, but leaving
undisturbed the holding of that court as to the merits of the
speedy trial issue. The matter was remanded to the court of
appeals which on June 19, 1978 ordered a rehearing on the
issue of the Petitioner’s double jeopardy claim.

Final briefs were submitted by the parties on October 12,
1978. Without hearing oral argument the court of appeals
denied Petitioner’s appeal on October 27, 1978 in a 3-page
decision. His petition for rehearing en banc was denied on
November 24, 1978.

Statement of the Facts

In February 1970, Jeffrey R. MacDonald was a medical
doctor on a two-year term of military duty with the Army
Sixth Special Forces Group at Fort Bragg, North Carolina.
He lived with his wife Colette and his two daughters, Kim-
berly, 6, and Kristen, 3, in a home on the Army base.

6

In the early morning hours of February 17, 1970, Mrs.
MacDonald and the two children were murdered, and Dr.
MacDonald was stabbed in the lung, suffering a near-fatal
injury, along with a variety of other injuries.

Two and a half months later, on May 1, 1970, the Army
charged Dr. MacDonald with the murders of his family.

Immediately thereafter the military justice process was
officially begun against Dr. MacDonald by the forwarding
of charges.' The charges were publicly announced by a
press release from the Army and a press conference by
the Provost Marshall of Fort Bragg.

On May 12, 1970, an order was issued directing the com-
mencement of full Article 32 proceedings against Dr. Mac-
Donald (STA 19).? These began promptly on May 15, 1970
(STA 3). The presiding officer was Colonel Warren V. Rock,
an infantry officer with thirty years of service and sub-
stantial courts martial experience. He had the full-time
assistance of a qualified military judge, Captain Hammond
A. Beale, Jr., as his legal adviser.

1. To the extent that analogies may be drawn between the
military and civilian systems of justice, the forwarding of charges
is the equivalent of the return of an indictment. This action is
taken only after a preliminary investigation has been completed.
Manual for Courts-Martial, 1969 (Rev.), para. 32b. At this point
the statute of limitations ceases to run. Manual for Courts-Martial,
1969 (Rev.) (herein referred to as “MCM”), para. 33b; Articles
43(b), (ce) of the Uniform Code of Military Justice, 10 U.S.C.
§§ 843 (b), (c). It is significant that the general federal statute of
limitations, 18 U.S.C. § 3282, ceases to run at the time “the indict-
ment is found or the information is instituted.” Thus, the ..ing of
sworn charges within the military system is by virtue of the Manual
of Courts-Martial and the Uniform Code of Military Justice
Aree analogous to the return of an indictment under 18 U.S.C.

282.

2. For the purposes of this petition, reference to STA fol-
lowed by a number refers to a page of the Appendix to the Brief
of the United States (sur the speedy trial issue) filed with this
Court in September, 1977, in United States v. MacDonald, 435 U.S.
850 (1978). F.g., “STA 19” refers to page 19 of the appendix to the
government’s brief in that case.

7

The government was represented by two prosecutors who
were fully qualified under military regulations. Dr. Mac-
Donald was present throughout the proceedings and was
represented by counsel.

The Article 32 proceedings were reconvened on May 15,
1970, for the purpose of determining “the truth of the
matter set forth in the charges. . .” 10 U.S.C. § 832. At that
time, the presiding officer asked counsel for the government
when he would be ready to proceed with the presentation of
evidence. The prosecutor stated he would be ready in two
weeks. (STA 5) The matter was then recessed

At the outset of the testimonial phase of the proceedings
on July 6, 1970, Colonel Rock stated that because of the
extraordinary seriousness of the case and the attention it
had received, the government would be required to present
all the relevant evidence known to it supporting the charges
against Dr. MacDonald.* The prosecutors acknowledged
the directive of Colonel Rock and announced that they were
ready to and able to proceed.5

Under military regulations, Colonel Rock had the right
to obtain and examine, in advance of the testimonial phase,
the complete investigation files prepared by the Criminal
Investigation Division (CID) of the Army. However, he
declined to do so in favor of requiring the prosecution
attorneys to present all of the evidence in open court.
This decision may have been partially motivated by the fact
that the prosecutors had refused to comply with the bulk
of the Petitioner’s demands for discovery. (STA 20)

The prosecutors knew that if they were to carry their
burden of showing that the charges were “true,” they could

3. A further continuance was granted until July 6, 1970, when
the taking of testimony began.

4. Article 32 transcript, at 1.
5. Id.

8
not rely upon or assume any knowledge by Colonel Rock
of the facts obtained by the CID investigation. They knew
that they had to put on a complete case at the Article 32
proceedings. There is no basis in fact or in the record to
believe the military prosecutors withheld evidence from
Colonel Rock.

Examination of the case actually developed by the govern-
ment showed that it was “wholly circumstantial and rested
on a detailed, hypothetical reconstruction of the crime.”
(United States v. MacDonald, 531 F.2d 196, 199 (4th Cir.
1976) ; see also STA 29).

The government called twenty-seven witnesses. It placed
in evidence the results of intensive CID laboratory examin-
ations of hundreds of items of physical evidence. Some of
the physical evidence was also examined by other experts
retained by the government.®

The evidence presented by the prosecution at the Article
32 proceedings had been gathered over an eight month
period and was the result of the efforts of more than one
hundred military and civilian law enforcement investiga-
tors. These investigators had assembled material from
approximately 1,500 witnesses, including a number who
were in foreign countries (Art. 32 transcript, 930).

Dr. MacDonald presented a full defense to the charges
against him. He testified at length under oath and was
subjected to an extensive cross-examination by counsel for
the government. And he was examined in detail by the
presiding officer. His testimony was the same as the inform-

6. All of this physical evidence was the same evidence examined
by the FBI laboratory in 1974. No new physical evidence has ever
been uncovered since the original investigation of this erime in
1970.

9
ation he had given the military police, the CID investi-
gators and the FBI.’

In addition to Dr. MacDonald, the defense called twenty-
nine other witnesses.

After the government and defense both presented exten-
sive evidence at the Article 32 proceedings, the presiding
officer utilized his own unique authority under the Uniform
Code of Military Justice to make additional independent
investigation of the facts and circumstances surrounding
the murders.®

Among other things, he conducted his own investigation
of the physical facts and made relevant experiments (STA
199-201); he obtained a psychiatric examination of Dr.
MacDonald by doctors of his choice (STA 25); he called
and examined his own witnesses (STA 82 to 88); and, he
independently questioned the witnesses called by both
parties.

During an adjournment in the testimonial phase of the
Article 32 proceeding, Colonel Rock, accompanied by his
legal adviser, conducted his own experiments with physical
evidence at the MacDonald house. (STA 90).

The presiding officer called a total of six witnesses of his
own. He also questioned, independently of counsel, nearly
every one of the fifty-seven witnesses who testified at the
Article 32 proceedings.

7. The government conceded in the prior proceedings before this
Court the consistency of Dr. MaeDonald’s statements. “|H]e has
presented essentially the same version of those events from his
initial interview on the morning following the murders to his
appearances before the grand jury in 1974 and 1975.” Page 64 of
Government brief in United States v. MacDonald, 435 U.S. 850.

8. In most ways, his powers are more analogous to those of the
inquiring magistrate in Continental legal systems than to the
committing magistrate of the American criminal justice system.

10

The Article 32 proceedings lasted five months. All the
evidence the prosecutors had to support the accusations
against Dr. MacDonald was produced. The hearings re-
quired more than four full weeks of in-court testimony.® The
results were:

¢ arecord of nearly 2,000 legal-sized pages;

¢ a 90-page summary of the evidence and conclusions;

¢ two findings.’®

The first and principal finding was that all charges against
Dr. MacDonald “are not true.” (STA 24)

The second finding was that “appropriate civilian authori-
ties be requested to investigate the alibi of Helena Stokely
... [in regard to] ... her whereabouts during the early
morning hours of 17 February 1970 .. .” (Jd.)

The report was filed by Colonel Rock with Major General
Edward M. Flanagan, Jr., on October 13, 1970. The proce-
dure followed subsequent to the filing is outlined in both
the Manual for Courts-Martial (U.S. rev.ed. 1969) and the
Uniform Code of Military Justice. The report was referred
to the Staff Judge Advocate of General Flanagan’s com-
mand. The Staff Judge Advocate had the authority to ask
the prosecutors or the CID to comment or note objections
to the report. This was part of the Staff Judge Advocate’s
function of advising the commanding general on proper
disposition of the case. No such objections were made by the
prosecuting attorneys.

9. In accordance with military eustom, the proceedings were
convened at 8:30 a.m. and lasted until 4:00 or 4:30 p.m. daily, with
a short recess for lunch. The average day involved six to six and
one-half hours of testimony.

10. Sinee Colonel Rock’s findings were subject to further review,
the procedures followed by Colonel Rock in submitting detailed
summaries of the evidence, his conclusions and findings were in
accord with the high standards required of district judges under
Fed. R. Civ. P. 52.

11

Before concurring in, or disapproving of, the findings and
conclusions of Colonel Rock, the conimanding general was
required under the Uniform Code of Military Justice to
make a full, independent judicial review of the matter. He
had the authority to reject the findings of Colonel Rock if
they were not suppported by the record. He also had broad
discretion to reject the results of the Article 32 proceedings
if he found them unacceptable for any reason.

If the commanding general and his legal adviser had
concluded that the findings were based upon an incomplete
investigation or incomplete presentation of evidence by the
prosecutors, he could have remanded the matter to Colonel
Rock for further proceedings to deal with the unanswered
issues. He also could have ordered a totally new investiga-
tion if he had concluded that the government’s investiga-
tion was incomplete." But, General Flanagan did not con-
clude that any of these actions was appropriate on the
basis of the record before him. Instead, General Flanagan
took the unusual additional step of submitting the report
and record of the Article 32 proceedings to Lieutenant
General Tolson, the next higher commander, for his con-
currence, There is no requirement in the Uniform Code
nor in the Manual for Courts-Martial for such an addi-
tional review and concurrence. The full legal authority to
finally terminate the proceedings against Dr. MacDonald
was held by General Flanagan. After General Tolson had
made his independent review of the report of Colonel Rock
and of the record the matter was returned to General Flan-
agan for his action.

11. The commanding general had the power at any time to
suspend the Article 32 proceedings or to order them reopened for
further investigation. He could have done this on his own motion
or at the request of the prosecutors. Military Justice Handbook,
Dept. of Army Pamphlet 27-8, at 49 (1957).

12

Finally, on October 23, 1970, General Flanagan formally
entered an order dismissing the charges against Dr. Mac-
Donald.

Dr. MacDonald’s two-year term of service in the Army
was to end in June 1971. However, following the dismissal
of the charges against him, he applied for a hardship dis-
charge. The government not only could have refused to
grant him an early discharge, but it had the power to retain
him in the military service beyond his normal discharge
date for the purpose of further investigating criminal
charges against him.”

The sequence of events established that the Army had
sufficient confidence in the Article 32 proceedings and in
the two independent reviews of the entire matter by Gen-
eral Flanagan and his legal adviser and by General Tolson
to grant Dr. MacDonald’s request. On December 5, 1970,
he was honorably discharged from service by the Army,
six months earlier than it was required to do so.

REASONS FOR GRANTING PETITION

1. The Circuit Court's Decision Regarding the Applicability of the
Doctrine of Collateral Estoppel to This Case Is in Direct Con-

flict with the Holdings of This Court Dating Back to 1916.
This Court’s decision in United States v. Oppenheimer,
242 U.S. 85 (1916) (Holmes, J.) gave constitutional sane-
tion in criminal matters to the age-old doctrine of collateral
estoppel. Justice Holmes, speaking for the Court, rightly
noted that it would be bitterly ironic if the judge-made law
of collateral estoppel, designed to protect litigants from
repeated harassment by disgruntled losers, were to be less

12. See Army Regulation AR 600-31. The procedure of holding
an officer in the service beyond the expiration date of his term of
service for criminal investigation was utilized in the ease of Lt.
William Calley, who was extended on active duty while the Army
was determining whether charges were to be brought against him.

13
effective when the stakes are personal liberty than when
they are property. “It cannot be that the safeguards of the
person, so often and so rightly mentioned with solemn
reverence, are less than those that protect from a liability
in debt.” 242 U.S. at 87.

In Oppenheimer, the doctrine of collateral estoppel was
applied to preclude a subsequent criminal prosecution of
the defendant, even though a jury had never been empaneled
and even though the first judgment of the trier of fact was
later shown to be wrong as a matter of law.* It is thus

13. To the extent Justice Holmes has stated the facts in Oppen-

heimer rather eryptieally, we supply here a more complete state-
ment, based on the record before the Supreme Court in that case.

On February 25, 1914, Oppenheimer and seven others were
indicted for conspiracy to conceal assets in a bankruptey proceed-
ing. (Transcript of Reeord before the Supreme Court, at 14.
Hereinafter referred to as “TR’’.) The indictment was dismissed
on October 1, 1914, by District Judge Thomas, who held that the
indictment was barred by a one-year statute of limitations. TR 82.
Under then-existing law, appeal had to be taken within 30 days,
but no appeal was taken. TR 87. Accordingly, the District Court’s
dismissal, unchallenged, became final by November 1, 1914.

Twenty-five days later, District Judge Hough, following the
decision of Judge Thomas in Oppenheimer, held the one-year
statute applicable to an almost identical case which raised the same
issue, United States v. Rabinowich. Government Supreme Court
Brief in Oppenheimer at 23. (Hereinafter, “GB’’.) The Govern-
ment did take a timely appeal of this decision directly to the
Supreme Court, which allowed a writ of error on December 8, 1914.
GB 23.

While the Rabinowich case was pending before the Supreme
Court, the Government obtained on December 21, 1914, a second
indictment against Oppenheimer, virtually identical to the first.
TR 81.

On June 1, 1915, the Supreme Court handed down its ruling in
Robinowich, 238 U.S. 78 (1915), holding that a three-year statute of
limitations applied. In so holding, the Supreme Court, of course,
held that the Distriet Court’s dismissal of the first Oppenheimer
indictment was erroneous.

However, on January 29, 1916, District Court Judge Pope
quashed the second Oppenheimer indictment, holding that the
unappealed decision of Judge Thomas in Oppenheimer’s favor
barred further prosecution. It is this dismissal which Justice

14

very clear that this Court, since the day it incorporated the
doctrine of collateral estoppel into the Fifth Amendment’s
double jeopardy prohibition, has never required the attach-
ment of jeopardy as a precondition for the application of
the doctrine. Nevertheless, the effect of the Fourth Circuit’s
cryptic opinion here is to require that jeopardy, in some
technical sense of that word, must attach before the Fourth
Circuit will apply the doctrine of collateral estoppel. That
view was expressly rejected by this Court in Ashe v. Swen-
son, 397 U.S. 486 (1970), where a prosecution was barred
for a bank robbery, even though jeopardy had never
attached for that particular robbery, because a key fact
had been determined adversely to the government in a prior
proceeding.

Further, the Fourth Cireuit, without analysis, simply
glosses over, by either ignoring or wrongly applying, this
Court’s well-considered statements that, to apply the doc-
trine of collateral estoppel, a court must look at the facts
and circumstances of the prior adjudicative process, and
not simply at the narrow question of whether the prior
adjudication was before a trial court of complete jurisdic-
tion. The only treatment of this issue by the Fourth Circuit
is the bare conclusion which follows:

Furthermore, beeause no final judgment of a tribunal
having jurisdiction to try MacDonald has determined

Holmes, speaking for the Court, upheld in the Oppenheimer
decision.

Of course, Oppenheimer, viewed in this context, stands for the
propositions that: (a) A dismissal prior to the attachment of
jeopardy can bar further relitigation of that dismissal under the
rules of collateral estoppel; (b) It does not matter that the losing
party could have appealed the dismissal and probably have pre-
vailed on appeal. Rather, as long as the losing party could have
further litigated issues (but did not do so), the principles of col-
lateral estoppel apply as to the issue which could have been liti-
gated; (c) Collateral estoppel is fully incorporated into the double
jeopardy provisions of the Fifth Amendment.

15

an issue of ultimate fact, the prosecution pending in
the district court is not barred by the fifth amendment’s
embodiment of collateral estoppel. See Ashe v. Swen-
son, 3897 U.S. 486, 448 (1970). The absence of such a
judgment distinguishes this ease from United States
v. Oppenheimer, 242 U.S. 85 (1916) and United States
v. Utah Construction & Mining Co., 384 U.S. 394 (1966),
on which MacDonald primarily relies, (App., 48)

First, this statement in itself is a departure from the
Fourth Cireuit’s earlier statements that MaeDonald’s
collateral estoppel arguments “are not fanciful,” United
States v. MacDonald, 531 F.2d 196, 199 (4th Cir. 1976).
In its prior opinion in this case that court declared:

It appears that custom imputes finality to the com-
manding officer’s decision to dismiss charges after an
Article 32 proceeding. This would arguably sustain a
plea of collateral estoppel, if not double jeopardy, but
no military regulation or case specifically deals with
this question. 531 F.2d 209."

Second, the Fourth Circuit’s simplistic conclusion that
collateral estoppel is not applicable here, blatantly ignores
the criteria Utah Construction (cited in the Fourth Cireuit
statement quoted above) set up to measure whether col-
lateral estoppel effect should be given to a prior adminis-
trative decision. “When an administrative agency is acting
in a judicial capacity and resolves disputed issues of fact
properly before it which the parties have had an adequate
opportunity to litigate, the courts have not hesitated to
apply res judicata to enforce repose.” 384 U.S. at 422. More-
over, as this Court has further stated, “[n]o one set of facts,

14. This statement is still true. The present case appears to be
the first one ruling on this issue, and the present Fourth Cireuit
opinion treating this important issue of first impression is a model
of conelusionary statements without reasons.

16
no one collection of words or phrases, will provide an auto-
matic formula for proper rulings on estoppel pleas.”
Blonder-Tongue Laboratories, Inc. v, University of Illinois
Foundation, 402 U.S. 318, 333-334 (1971).

Had the court below analyzed the criteria which this
Court announced in Utah for determining whether to apply
collateral estoppel, it would have been compelled to dismiss
the indictment. Those criteria are as follows:

1. Was the prior decision rendered in a judicial setting?
In this case, the answer is unequivocally ves. The Article 32
proceeding was conducted before an officer acting in an
impartial “judicial” capacity, United States v. Tomaszew-
ski, 8 USCMA 266, 24 CMR 76, 79 (1957).

2. Was the prior decision rendered by an authority who
had jurisdiction to consider all facts actually fowad? The
answer is ves. The Article 32 officer was charged under the
Uniform Code and Manual for Courts Martial with deter-
mining whether the charges against Dr. MacDonald were
“true.” In fact, he determined that they were “not true.”
Those findings, supported by the 2000-page verbatim trans-
eript and record, and 90-page summary of the findings and
evidence were subject to review by higher military author-
ity.

3. Was the prior decision made after an adversary hear-
ing? Yes again. Each party was represented by counsel;
there was complete right of cross examination of all wit-
nesses; there was complete incentive to litigate on the part
of the government, since the Article 32 officer required the
government to present all of its evidence, and there is no
indication that it did not follow this directive. There was
a verbatim transcript of testimony, which was given under
oath. All the indicia of formal, due process, adversary
proceedings are present here.

17

4. Did each party have the opportunity for court review
of the factfinding process? Yes, If the Article 32 process
had resulted in referring the matter to trial, Dr. MacDonald
would have been tried by court martial. However, the gov-
ernment had even a better deal: even though the Article
32 process resulted in a recommendation that Dr. Mac-
Donald not be prcsecuted, higher military authority could
have ordered a court martial trial anyway, if in their view
the Article 32 record warranted such proceedings.

Moreover, had higher authority concluded that the Ar-
ticle 32 proceedings were in any way deficient, that author-
ity could have ordered either that the Article 32 proceed-
ings be reopened, or that new proceedings be instituted.
But, neither of these courses was chosen by the govern-
ment, though they could have been. The point is, there
was complete opportunity for review of the Article 32 pro-
ceedings prior to the dismissal of the charges against Dr.
MacDonald, and prior to his honorable discharge from the
military.

5. Is there either need or justification for further pro-
ceedings? No. All the evidence in existence today was in
existence in 1970, and in fact, was used at the Article 32
hearing. Dr. MacDonald was extensively cross examined
at the Article 32 proceeding. The forum which heard the
evidence was a fair one to the government. Nothing remains
to be said or done about this case, except to end it, for each
side has had a fair chance already to litigate its position,

None of these criteria were evaluated by the Fourth
Circuit in its latest opinion. This is particularly strange and
unfortunate in that in its prior opinion, 531 F.2d 196, the
Fourth Cireuit showed that it knew Dr. MacDonald’s claims
were substantial. And, it also knew that the issue of what
collateral estoppel effect is to be given an Article 32 pro-
ceeding such as this one—the most thorough ever conducted

18

by military authorities—had never (until now) been settled
by judicial decision. This Court should thus take the oppor-
tunity now to resolve on a more rational and reasoned basis
than the Fourth Cireuit did, this important point of mili-
tary law, and the even more important point of general
constitutional law regarding the applicability of collateral
estoppel in criminal matters.

ll. The Circuit Court's Opinion Is In Conflict with the Decision
of the Second Circuit Regarding Criteria for Applying the
Doctrine of Collateral Estoppel.

The Fourth Cireuit ignored this Court’s holdings that
collateral estoppel must be viewed on a case-by-case basis,
without regard to magic formulae as to whether jeopardy
has attached in some technical sense, and with due regard
for the facts of the prior adjudicative process. In doing so,
the Fourth Circuit’s analysis (or lack of analysis) directly
contradicts the reasoned approach of the Second Cireuit in
Lummus Co, v. Commonwealth Oil Refining Co., 297 F.2d
80 (1961) (Friendly, J.), cert. denied, 398 U.S. 986 (1962).
In that case, the Second Circuit considered procedural
issues created by two district courts’ entertaining proceed-
ings to determine if arbitration would be ordered under a
contract between the parties. The First Cireuit had stayed
an injunction from the district court in Puerto Rico pro-
hibiting a contract arbitration in New York.’ In so doing,
the First Cireuit expressed its view that the party opposing
arbitration had not sufficiently raised factual issues as to
be entitled to a stay of the arbitration called for in the eon-
tract.’° However, independently, a district court in New

15. 280 F.2d 915 (1st Cir.), rehearing denied, 280 F.2d 932,
cert. denied, 364 U.S. 911 (1960).

16. The Distriet Court of Puerto Rico acceded to the First Cir-
euit’s opinion, allowing the New York proceedings to go forward.

19

York later granted a trial to the party opposing arbitration
on the issue of the making of the contract which contained
the arbitration clause, The Second Cireuit, while finding
that this district court ruling was not an appealable inter-
locutory order within the meaning of 28 U.S.C. § 1292(a)
and (b), nevertheless issued an extraordinary writ of man-
damus to the New York district court precluding that court
from holding a trial.

In doing so, the Second Circuit, through Judge Friendly,
decided that collateral estoppel effect should be given the
ruling of the First Circuit that the party opposing arbitra-
tion had not raised sufficient factual issues to warrant a
trial on the making or existence of a contract. The Second
Cireuit opinion explicitly recognized that the First Circuit’s
finding in this regard was not a “final” judgment in any
judicial sense, because it was interlocutory in nature and,
as a rule of law, not binding on the trial court as a technical
matter.

Nevertheless, the Second Circuit adopted a praginatic
test for the application of the rule of collateral estoppel
(paralleling this Court’s test in Utah Construction and
Blonder-Tongue). Judge Friendly quoted Justice Brandeis’
phrase that “final” is “a word of many meanings,” 297 F.2d
at 89, Thus, the Second Circuit chose to give “finality” to
the First Cirecuit’s holding, even though it was not “final”
in a technical sense. In doing so, the Second Cireuit said:

Whether a judgment, not “final” in the sense of 28
U.S.C. $1291, ought nevertheless to be considered
“final” in the sense of precluding further litigation of
the same issue, turns upon such factors as the nature
of the decision (7.e., that it was not avowedly tenta-
tive), the adequacy of the hearing, and the opportunity
for review, “Finality” in the context here relevant may
mean little more than that the litigation of a particular

20
issue has reached such a stage that a court sees no
really good reason for permitting it to be litigated
again. 297 F.2d at 89.

This practical and reasoned approach to when collateral
estoppel effect will be given to prior findings is exactly the
approach taken by this Court in Parklane Tlosiery Com-
pany, Inc, v. Shore, — U.S. —, 47 L.W. 4079 (decided Jan-
uary 9, 1979), in which Justice Stewart appears to prefer
a case by case analysis over a mechanical application of
technical rules. These rulings could hardly be more at odds
with the mechanical approach taken by the Fourth Cireuit.
That court stressed that because there was “no final judg-
ment,” jeopardy in a technical sense had not attached, and
that the prior adjudication was not in a forum which ulti-
mately could have convicted Dr. MacDonald.

The Fourth Cireuit’s mechanical approach to when col-
lateral estoppel effect should be accorded prior adjudicative
proceedings presents a clear conflict with the Second Cireuit
Lummus decision and this Court’s approach in the decision
announced earlier this month in Parklane Hosiery Com-

17. The Fourth Circuit, in its insistence that only a “tribunal
having jurisdiction to try MacDonald... [on] an issue of ultimate
fact” ean render a decision which will have collateral estoppel effect,
is dangerously close to espousing a doctrine repudiated by this
court in Blonder-Tonque, that is, the doctrine of mutuality,

It is true that the government could not have convicted Dr.
MacDonald during the Article 32 proceeding or post-hearing review,
but that is not any reason to ignore the findings of those proceed-
ings. Blonder-Tongue, Utah, and Lummus, supra, all reject the
mechanical approach to when collateral estoppel principles will
apply, and instead focused on the process of adjudication: if that
process is fair, then it is fair to bind the parties who participated
in the result.

Mutuality, as a doctrine which the Fourth Cireuit seems to be
espousing, is “destitute of any semblance of reason, and... a
‘maxim which one would suppose to have found its way from
the gaming table to the bench.’ ” Blonder-Tongue, supra, 402 U.S.
at 323.

21

pany, Inc. v. Shore, supra. This Court should resolve the
conflict so that the simplistic error and confusion of the
Fourth Circuit’s current opinion does not spread through-
out the entire field of collateral estoppel and thus render
unavailable the significant savings in judicial resources
which do flow from a reasoned and flexible application of
the collateral estoppel doctrine,

Ul. The Fourth Circuit's Current Opinion Undermines Important
Policies Embodied in the Uniform Code of Military Justice
and the Manual for Courts Martial.

If the decision below is left standing the result will be
to change significantly the stature of the Article 32 pro-
ceeding in the military justice system. An Article 32 pro-
ceeding is far different from a grand jury proceeding or a
preliminary hearing, It is an inquiry into the truth of the
charges, not whether there is probable cause for further
action.

Although some analogies may be made between an Article
32 proceeding and a grand jury proceeding or preliminary
pretrial hearings in civilian courts, it is simplistic and
wrong to extend these comparisons too far. To proceed by
analogy here is to overlook very material differences be-
tween an Article 32 proceeding (and the review which fol-
lows it), and civilian proceedings. For an Article 32
proceeding is specifically an inquiry into the “truth” of the
charges, and is not, in that sense, a “probable cause” type
of proceeding. The Manual for Courts Martial states this
directly:

The purpose of the investigation required by Article
32 is to inquire into the truth of the matters set forth
in the charges, the form of the charges, and to secure

information upon which to determine what disposition
should be made of the case. It is not the function of

22
the investigating officer to perfect a case against the
accused, but to ascertain and impartially weigh all
available facts in arriving at his conclusion. He is
required to conduct a thorough and impartial inves-
tigation and is not limited to the examination of
witnesses and documentary evidence listed on the
charge sheet or mentioned in the papers accompanving
the charges, He should extend his investigation as far
as may be necessary to make it thorough. The inves-
tigation should be dignified and military, as brief as is
consistent with thoroughness and fairness, and limited
to the issues raised by the charges and to the proper
disposition of the case, Manual for Courts Martial,
§ 34a (emphasis supplied).

The Article 32 proceeding has been called a “juristie event
of substantial gravity” by the Court of Military Appeals,
United States v. Cunningham, 12 USCMA 402, 405, 30 CMR
402, 405 (1961). It is a “judicial” proceeding, United States
v. Nichols, 8 USCMA 119, 124, 28 CMR 348, 348 (1957) ;
United States v. Tomaszewski, 8 USCMA 226, 269, 24 CMR
76, 79 (1957).

The Article 32 proceeding is unlike grand jury investiga-
tions. Nor is it like pretrial proceedings where prosecutors
routinely present just enough evidence to get a trial and
defense counsel sit quietly by, hoping to glean some dis-
covery while not revealing any part of the defense case.
Rather, it is an adversary, adjudicating format designed
to encourage the earliest resolution of cases which may be
baseless, and to encourage the defense to participate
actively in this process:

[there is an] understandable caution on the part of
defense attorneys [which] sometimes results in charges
being referred for trial and acquittal resulting when,
if the full story had been brought out during the
Article 32 investigation, the expense to the Govern-
ment and hardship to the accused of a trial might have

23

been completely avoided. R. Everett (formerly a Com-
missioner for the United States Court of Military
Appeals), Military Justice in the Armed Forces of the
United States (1956) at 172.

The effect of the Fourth Circuit’s decision in this case
will be to undermine completely all incentive to end military
justice proceedings at the earliest opportunity—the Article
32 stage. If a defendant cannot rely on ending the matter
by successfully participating in the Article 32 process
(which, remember, is subject to military review even if the
hearing officer recommends that there be no trial), then the
fundamental “truth-finding” character of the Article 32
will be subverted. Instead it will become just another
of the pretrial processes at which prosecution and defense
play games with each other; the one trying to put on just
enough evidence to get a recommendation for a referral to
trial; the other trying to find out as much as possible of
the prosecution case without doing anything to present the
defense rebuttal to prosecution evidence. What will be left
is the gutting of Article 32 by the Fourth Cireuit’s unin-
formed and unreasoned decision in this case.

IV. The Fourth Circuit's Decision Allows the Government to Ignore
Longstanding Government Policies Which Allocate Jurisdic-
tion to One Agency of Government—Here, the Military—
and Preclude Other Agencies of the Government from
Repeatedly Harassing Defendants Who Have Already De-
fended Themselves.

In its relations with foreign governments, the United
States government has specifically contended that an
Article 32 investigation such as the one in the present case,
if it exonerates the accused, completely precludes the
foreign civilian government from proceeding against the
American soldier. Thus, the Army has taken the position,

24
presumably sanctioned by the Department of State, that “a
[United States military] determination not to try, made
after [an informal investigation or an Article 32 proceed-

ing] is an exercise of American jurisdiction and bars sub--

sequent trial by the [foreign host] State.” Snee & Pye,
Status of Forces Agreements—Criminal Jurisdiction
(1957) at 67. It is ironie—and wrong—that the United
States Government claims that an Article 32 investigation
will preclude a foreign civilian government from trying a
man exonerated by that investigation, but will not aecord
the same effect to such an investigation in American federal
civilian courts.

This is particularly disturbing in light of the agree-
ment entitled Memorandum of Understanding Between
the Departments of Justice and Defense Relating to Investi-
gation and Prosecution of Crime Over Which the Two De-
partments Have Concurrent Jurisdiction (July 1955). (See
App., 45-48.) In this case, the military clearly had primary
jurisdiction to investigate and prosecute these crimes.
Under the terms of the J/emorandum, that jurisdiction was
“exclusively” in the military justice system.'§ In 1970, when
these crimes were under investigation and prosecution, the
military was the on/y ageney of the government empowered
by the Memorandum to deal with the crimes. The inference
is unavoidable that the United States, in allocating juris-
diction to the military, was reasonably confident that its
interests could and world be protected by the military
justice system. Thus, a defendant in the military justice
system could justifiably rely on that svstem exclusively
to reach a just result in his ease. In the present situation,

18. See Memorandum, para. 3. No formal transfer of jurisdiction
ever took place, and in fact the military conducted the entire prose-
eution and investigation in accordance with the provisions of the
Memorandum.

25
that meant utilizing the Article 32 process as it was intended
to be used: to end baseless charges at the earliest possible
moment.

But now the Fourth Circuit’s decision in effect allows the
government to have it both ways: if it “wins” in the mili-
tary system, of course it “wins.” But if it “loses” in that
system, then the civilian system can take over and try
again. That decision simply makes a mockery of the Memo-
randum which has as its purpose the division of jurisdiction
(when there is overlapping jurisdiction) “exclusively” to
one agency or another for full, complete and final resolu-
tion of the problem.

Here, one governmental agency, the military, after full
and fair hearings, determined that the charges were “not
true.” Now to allow the government to ignore the results
of the Article 32 process and the subsequent military review
means that, despite the “finality” which the United States
claims for its Article 32 vis a vis foreign governments,
Article 32 proceedings which result in dismissal of charges
against soldiers will never finally end the matter, as long as
there is someone in the Justice Department who wants to
take another cheap shot at a man wiio has already run the
gauntlet.

This Court should take this opportunity to review the
government’s own adherence to its policies against multiple
and overlapping proceedings against the same accused for
the same alleged offense,’ and satisfy itself that the United
States is fairly following the beneficial rule that one trial
is enough.

19. Cf., similar federal policies against federal prosecutions for

offenses which may also have been prosecuted under state laws.
Petite v. United States, 361 U.S. 529 (1960).

26
CONCLUSION
For all of the above reasons, this Court should issue the
Writ of Certiorari requested.

Respectfully submitted,

Bernarp L. SEGAL
MicHAEL J. MALLEY

Counsel for the Petitioner
Jeffrey R. MacDonald
KennetuH A. LETZLER

Of Counsel
January, 1979

INDEX

Page
PMO GO TO CORE RE aan ssscinccenstsoensnscescnnssennensiacen 1
Opinion of the court of appeals.................-....-:.::eceseesee-eee 7
Opinion of the court of appeals on remand.....................- 42
Order of the court of appeals denying rehearing............ 44

Memorandum of understanding between the depart-
ments of Justice and Defemnse...................:.:s::seeeeeeeeseeee 45

Appendix
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

No. 75-26-CR-3

United State of America,

Plaintiff
Vs.

Jeffrey R. MacDonald,
Defendant
ORDER ON DEFENDANT’S REMAINING
PRE-TRIAL MOTIONS
The defendant who stands indicted on three counts of
first-degree murder has filed ten pre-trial motions which
have been extensively briefed and argued by defendant’s
counsel and counsel for the government over a period of
almost four months. Two of the motions on which defendant
seemed to place greatest reliance have been the subject of
separate lengthy orders by the court. This order will con-

tain the court’s rulings on the remaining pre-trial motions
of the defendant.

MOTION FOR INSPECTION AND COPYING OF
GRAND JURY TESTIMONY

By this motion the defendant seeks transcripts of his
own grand jury testimony, the testimony of all expert
witnesses before the grand jury and the testimony of all
other witnesses before the grand jury. The government has
heretofore furnished the defendant a transcript of his own
grand jury testimony, and that phase of the motion is now
moot. The court having thoroughly considered defendant's
motion, the briefs and argument of counsel and the results
of the court’s own research, is of opinion that the motion

2 Appendix

ought to be and is hereby denied in the discretion of the
court and on authority of United States.v. Andeson (sic),
481 F.2d 685 (4th Cir. 1973).

MOTION FOR DISCOVERY AND INSPECTION OF
DOCUMENTS, ETC., PURSUANT TO FEDERAL
RULE OF CRIMINAL PROCEDURE 16 AS AMENDED

By this motion the defendant seeks in effect to obtain a
copy of the government's entire file including photographs,
all tangible evidence and exhibits of every kind and deserip-
tion. In response to the motion the government has agreed
to make available to the defendant in advance of the trial
or at the trial pursuant to the provisions of the Jencks Act,
18 U.S.C. § 3500, certain portions of the evidence sought to
he discovered by the motion. Except as thus agreed by the
government, the court is of opinion that the motion is overly
broad and should be and is hereby denied in the discretion
of the court. United States v. Anderson, 481 F.2d 685 (4th
Cir. 1973). The court reserves the right to modify this rul-
ing should it appear later in the proceedings that the ends
of justice require such action.

MOTION TO DISMISS INDICTMENT FOR
DEFECTS IN THE GRAND JURY PROCEEDINGS
AND PROSECUTORIAL MISCONDUCT BEFORE
THE GRAND JURY

In this motion defendant alleges that the appearance be-
fore the grand jury of Victor J. Woerheide, Msq., an attor-
ney for the Department of Justice, was unlawful and in vio-
lation of the provisions of 28 U.S.C. §515(a), F.R.Crim.P..,
Rule 6(d), and the rights of the defendant under the Fourth,
Fifth and Sixth Amendments of the Constitution. The court
finds that Mr. Woerheide’s appearance before the grand
jury was duly and lawfully commissioned by the Attorney

Appendix 3
yeneral of the United States, and the motion as based on
this ground is denied on authority of United States v.
Weiner, 392 F.Supp. 81 (N.D.Il. 1975). See also In re
Persico, 44 L.W. 2011 (2nd Cir., June 19, 1975).

From the evidence offered the court finds no improper
conduct on the part of the government attorneys during the
questioning of defendant before the grand jury and the
motion as based on this ground is denied.

The defendant has not offered evidence to sustain his
allegation that the grand jury received and considered the
testimony of improper witnesses, and the motion as based
on this ground is denied.

From the evidence offered the court finds that the attor-
neys for the government did not intentionally and falsely
misstate the scope and objectives of the grand jury investi-
gation in order to unlawfully induce the testimony of the
defendant and other persons, and the motion as based on
this ground is denied.

MOTION TO DISMISS INDICTMENT BECAUSE
OF DOUBLE JEOPARDY AND COLLATERAL
ESTOPPEL

In this motion defendant alleges that pursuant to Article
32 of the Uniform Code of Military Justice a duly-appointed
military officer conducted “judicial proceedings” during the
months of June through September of 1970 including four
full weeks of testimony during which time the government
presented all of the evidence known to it hearing on the
crimes in question; that at the conclusion of these proceed-
ings the charges against the defendant, Jeffrey R. Mac-
Donald, were dismissed as being without foundation; and
that in October, 1970, the Commanding General charged
with the final authority in the matter “entered an order dis-
missing finally and with prejudice the charges against the
defendant.” On the basis of these proceedings defendant

4 Appendix

contends that the January 1975 grand jury indictment is
violative of his double jeopardy and due process of law
rights under the Fifth Amendment and that “re-charging
of the defendant under the circumstances described above
is barred by the doctrine of collateral estoppel.” In their
briefs the parties have cited no case determining the exact
question thus raised nor has the court’s own research re-
vealed a case directly in point. The recent case of Breed v.
TONES, ........ US. ........, 95 S.Ct. 1779, 438 L.W. 4644 (May
27, 1975), cited and relied upon by defendant, is clearly
distinguishable. This court is of opinion that jeopardy did
not attach by reason of the Article 32 investigation proceed-
ings conducted by the military and that the government is
not collaterally estopped by reason of those proceedings.
It is not perceived how the due process rights of the defend-
ant here have heen prejudiced by the proceedings, and de-
fendant’s motion must therefore be and is hereby denied.

MOTION TO SUPPRESS EVIDENCE OBTAINED
AS A RESULT OF UNLAWFUL SEARCIL AND
SEIZURE AND TO DISMISS THE INDICTMENT

In this motion the defendant alleges that during the
course of the Article 32 proceedings at Fort Bragg in 1970
while he was under house arrest and confined to his quar-
ters at Fort Bragg government agents “repeatedly and
unlawfully entered the defendant’s rooms, conducted gen-
eral searches, and examined, read and eopied papers, docu-

ments and materials pertaining to the defense of the defend-.

ant” and that during that time and _ thereafter illegal
wiretaps were placed upon telephones used by the defend-
ant. The government has categorically denied all such
allegations under oath. Even if defendant’s allegations
and his evidence in support thereof are accepted as true,

—

Appendix 5
he is unable to point to any information or evidence gained
by the government as a result of such alleged unlawful
activity, and defendant’s motion is therefore denied. This
ruling is made without prejudice to defendant's rights to
renew his motion with respect to any illegally-obtained evi-
dence which the government may seek to introduce upon
the trial of the case.

MOTION TO SUPPRESS EVIDENCE PURSUANT TO
FEDERAL RULE OF CRIMINAL PROCEDURE 41(e)

By this motion defendant seeks to suppress as evidence
against him “all items seized and the fruits thereof of
searches and seizures from the graves of Colette and Kim-
berley MacDonald” following the exhumation of the bodies
of these two murder victims by agents of the government
in August or September, 1974. Upon consideration of the
evidence bearing on the question raised by this motion and
the briefs and argument of counsel the court is of opinion
that the graves of Colette and Kimberley MacDonald were
lawfully opened at the instance of the government: that
the defendant does not have standing to contest the open-
ing of the graves; and that they were not opened in viola-
tion of the applicable statutes of New York, the state in
which the exhumations occurred. The defendant's motion
is therefore denied.

MOTION TO DISMISS INDICTMENT FOR DENTAL
OF RIGHT TO SPEEDY PROSECUTION AND TRIAL

By this motion the defendant takes the government to
task for pre-indictment delay amounting to almost five vears
between the date of the crime on February 17, 1970, and
the return of the indictment by the grand jury on January
25, 1975. The government has undertaken to justify the

6 Appendix

delay on the grounds that “because of government bureauc-
racy” the facilities of the crime laboratory of the Federal
Bureau of Investigation were not brought into the case until
the grand jury was finally convened in August of 1974. The
right to a speedy trial under the Sixth Amendment does not
arise until a person has been “accused” of a crime, and in
this case this did not occur until the indictment had been
returned, On the authority of United States v. Marion, 404
U.S. 307 (1971), the motion of defendant is denied.

In connection with this motion the defendant also moved
to depose certain officials of the department of Justice, but
since that time the court is informed that the defendant
has filed an action under the Freedom of Information Act
in the District of Columbia for the purpose of obtaining
further evidence, and defendant’s motion for leave to con-
duct further discovery in this action is denied.

/s/ ¥.T. Duprer, Jr.
F. T. Dupree, Jr.
United States District Judge

July 28, 1975.

Appendix T
[196] UNITED STATES of America, Appellee,

Vv.

Jeffrey R. MaecDONALD, Appellant.

Nos. 75-1870, 75-1871.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 8, 1975.
Decided Jan. 23, 1976.

[198] Before CRAVEN, BUTZNER and RUSSELL,
Circuit Judges.

BUTZNER, Circuit Judge:

Jeffrey Robert MacDonald appeals from the denial of
several motions relating to his prosecution for the 1970
deaths of his wife and two daughters.’ We conclude that
the [199] delay of four and one-half years, dating from the
Army’s accusation and detention of MacDonald in May
1970 to his indictment in January. 1975, even when allow-
ances are made for several intervals, violates the right to
a speedy trial guaranteed by the sixth amendment.? We
therefore reverse and order dismissal with prejudice.

I
We stayed MacDonald’s trial and allowed this interlocu-
tory appeal pursuant to our decision in United States v.

1. The district court has jurisdiction because the crimes were
committed on a military base. 18 U.S.C. §§ 7(3), 1111, and 3231.

2. “Tn all criminal proceedings, the accused shall enjoy the right
to a speedy and public trial . . ..” U.S. Const. amend. VI.

8 Appendix

Lansdown, 460 F.2d 164, 170-71 (4th Cir. 1972). There, we
held that 28 U.S.C. $1291 did not bar an interlocutory
appeal in criminal cases where important rights, collateral
to the main action, would be irreparably lost unless con-
sidered before trial. But see United States v. Bailey, 512
F.2d 833 (5th Cir. 1975). In Lansdown the appeal was from
an order rejecting a plea of double jeopardy. We held that
post-trial consideration of the issue could provide only
inadequate relief because the double jeopardy prohibition
was intended to prevent the hardship of undergoing a
second trial. See Green v. United States, 355 U.S. 184, 187,
78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The denial of Mac-
Donald’s plea of double jeopardy, like Lansdown’s, is a
proper subject for interlocutory review, but for reasons
discussed in Part IV, we believe it preferable not to decide
this issue. Instead, we have rested our decision on the sixth
amendment’s provision for a speedy trial.

Pendent to the double jeopardy claim, and closely related
to it, is MacDonald’s affirmative defense of denial of a
speedy trial. This sixth amendment claim is also collateral
and can be decided without considering the merits of the
charges against MacDonald. The guarantee of a speedy
trial is a fundamental constitutional right. Braden v.

3. In our order of August 15, 1975, allowing MacDonald’s peti-
tion for an interlocutory appeal, we noted his contentions that he
had been denied his rights against double jeopardy and to a speedy
trial. We then concluded “. . . that the contentions made are not
frivolous and that the rights asserted are too important to be denied
review, and if review is postponed until after the trial of the case,
claimed rights will have been irreparably lost. United States v.
Lansdown .. .”

We also allowed MacDonald to appeal issues that would other-
wise be subject to the final judgment rule, saying: “In view of our
accepting the appeal of [the orders overruling the double jeopardy
and speedy trial defenses], we will also consider the other questions
sought to be appealed, which, if not now presented, might oeeasion
further delay in terminating this litigation.” See part IV infra.

Appendix 9
Judicial Circuit Court, 410 U.S. 484, 489-90, 93 S.Ct. 1128, 35
L.Ed.2d 443 (19738); Klopfer v. North Carolina, 386 U.S.
213, 223-25, 87 S.Ct. 988, 18 L.Kd.2d 1 (1967); Kane v. Vir-
gina, 419 F.2d 1869, 1371-73 (4th Cir. 1970). Not every
speedy trial claim, however, merits an interlocutory appeal.
Generally, this defense should be reviewed after final judg-
ment. It is the extraordinary nature of MacDonald’s case
that persuaded us to allow an interlocutory appeal.

The hearing conducted by the Army in 1970 lasted for
more than a month, and the government estimates that the
trial would take six to eight weeks. The prosecution’s case
is wholly circumstantial and rests on a detailed, hypothetical
reconstruction of the crime. Witnesses, who have scattered
across the country in the last five years, must be inter-
viewed and assembled at great expense to both the govern-
ment and the defense.

MacDonald’s collateral defenses of double jeopardy and
denial of a speedy trial are not fanciful. Never before, as
we mention in Part IV, has a soldier been prosecuted by
civilian authorities after being exonerated by his command-
ing officer following an Article 32 hearing; and a delay of
five years between the initiation of prosecution and trial is
extraordinary. Had we denied the interlocutory appeal and
subsequently sustained either of MacDonald’s collateral
defenses, all of the burdens on the [200] court and the
parties of a prolonged, expensive trial would be for naught.
These factors, which we regard as unique, were the basis
for allowing this appeal.

II

In the early morning of February 17, 1970, military police
received a call for help from Captain MacDonald, a
physician stationed at Fort Bragg, North Carolina. Upon
arriving at the family’s quarters, the police found Mrs.

10 Appendix

MacDonald and the couple’s two daughters clubbed and
stabbed to death. MacDonald told the police that screams of
his wife and six-year-old daughter awoke him from the
couch in the living room. He said that during a short
struggle four assailants stabbed him and knocked him un-
conscious. Upon regaining his senses, he attempted to
revive his family and telephoned for help.

The military police, the Army’s Criminal Investigation
Division (CID), the F.B.I., and the Fayetteville, North
Carolina, police department immediately began an investi-
gation of the crime. Examination disclosed that each mem-
ber of the MacDonald family had a different blood type.
The location of the victims’ blood in the apartment and the
presence of one daughter’s blood on MacDonald’s glasses
cast doubt on MacDonald’s account. Similarly, the presence
of stray fibers from his pajama top in the master bedroom
did not correspond with MacDonald’s statement that it was
ripped in a struggle in the living room. Torn and bloody
pieces of surgical gloves, apparently of a type kept by Mac-
Donald, were found near the victims. Although there were
numerous unidentified fingerprints in the apartment, no
direct evidence of the alleged intruders was found. From
these and other circumstances, investigators theorized that
MacDonald had killed his family and staged the murder
scene to cover up his crime.

On April 6, 1970, the CID questioned MacDonald and
informed him that he was under suspicion. That same day
he was relieved of his medical duties and restricted to
quarters by his commanding officer. On May 1, 1970, the
Army formally charged him with the murders,

Major General Edward M. Flanagan, Jr., Commanding
General of the unit to which MacDonald was assigned, ap-

Appendix 11
pointed Colonel Warren V. Rock to investigate the charges,
with the assistance of a legal officer, in accordance with
Article 32 of the Uniform Code of Military Justice. Colonel
Rock’s final report described the manner in which the
Article 32 proceedings were conducted:

“Tn view of the fact that both government and defense
were represented by counsel, the hearing was con-
ducted in generally the same format as a trial. Govern-
ment presented its evidence and rested, defense did
likewise and finally the Article 32 Officer called for
witnesses and evidence. In all instances opposing coun-
sel was given the full right of cross examination. It was
necessary to give considerable latitude to counsel and
permit the introduction of some hearsay-type evidence
for both sides. The legal advisor sat next to the Investi-
gating Officer throughout the hearing and his sole
function was to assist him in making proper legal
rulings on all questions that arose.”

The government called 27 witnesses and MacDonald 29,
including many character witnesses. He himself testified
and was subjected to extensive cross-examination.

At the conclusion of the Article 32 proceedings, Colonel
Rock filed an exhaustive report in which he recommended
that “fa]ll charges and specifications against Captain
Jeffrey R. MacDonald be dismissed because the matters set
forth in all charges and specifications are not true... .” He
also recommended that the civilian authorities investigate a
named suspect. On review of Colonel Rock’s report, General
Flanagan dismissed the charges on October 23, 1970, and
reported this to the Commanding General of Fort Bragg,
who took no further action. Shortly afterward, the Army
released MacDonald from quarters and, underscoring the
finality of the military proceed- [201] ings, it granted him

12 Appendix
an honorable discharge for reasons of hardship in December
1970.4

Following MacDonald’s discharge, the Department of
Justice asked the CID to continue its investigation. The
CID complied, conducting 699 interviews. At the request of
the department, it sent the weapons and the victims’ cloth-
ing to the F.B.I. laboratory in July 1971 and in August
furnished the Treasury Department’s laboratory other
items for analysis. The CID completed its field investiga-
tion in December 1971, and in June 1972 it transmitted to
the Justice Department a 13-volume report recommending
prosecution. A number of government attorneys studied the
report and asked for further investigations. The CID filed
two supplemental reports, but upon receiving a request for
additional investigation, it suggested convening a grand
jury before it expended any more effort. Finally, in August
1974 the government started presenting the case to a grand
jury. Concurrently, the F.B.I. examined several items from
the MacDonald house, and it exhumed the bodies of Mrs.
MacDonald and the children to obtain hair samples.

Shortly after his discharge, MacDonald moved to Califor-
nia where he resumed the practice of medicine. In 1971 he
was again interviewed by the CID. Beginning in January
1972 and continuing through January 1974, MacDonald,
first in person and then through letters by his attorneys,
requested the government to complete its investigation. He
repeatedly offered to submit to an interview by the govern-
ment attorneys in charge of the case.® The attorneys, how-

4. MacDonald’s discharge barred any further military proceed-
ings against him. United States ex rel. Toth v. Quarles, 350 U.S. 11,
76 S.Ct. 1, 100 L.Ed. 8 (1955).

5. For example, on March 27, 1973, MacDonald’s attorney wrote
an attorney in the criminal division of the Department of Justice:
“T am taking the liberty to again urge upon you and the
Justice Department to accept our offer to submit Dr. Mac-

Appendix 13
ever, declined to question him and to advise when their in-
vestigation would be completed. The correspondence ap-
pears to have come to an end in January 1974, leaving
MacDonald in suspense.® MacDonald was subsequently sub-
poenaed to appear before the grand jury, He waived his
right to remain silent and testified on two occasions for a
total of more than five days.

The grand jury indicted MacDonald on January 24, 1975.
He was promptly arrested in California and a week later
admitted to bail. He moved to have the indictment dismissed,
contending that the government’s delay in obtaining it

Donald to an in depth on-the-reeord interview by your office.
“Tt seems to me that there are mutual advantages to our sug-
gestion. From the standpoint of your office it would present
the opportunity to perhaps obtain answers to some of the
questions that may have arisen in your minds as a result of
the study of the record and investigative reports in this ease.
From our standpoint we believe that an interview with Dr.
MaeDonald ean only confirm the correctness of the finding of
the Army’s own initial hearing officer, Colonel Rock.”

6. On January 8, 1974, MaeDonald’s counsel wrote:

“It is with some reservations that I write this letter to vou to
inquire about the status of your Department’s review of the
investigation of the deaths of the MaeDonald family at Ft.
Bragg, North Carolina. However, in fairness to my client who
has lived with the twin tragedies of those deaths and the un-
founded suspicion of himself in connection with them, that I
ask whether a final decision has been made in connection with
any Federal criminal action against him. If such a decision
has not yet been made may I inquire as to when we may rea-
sonably expect it to be made.

“T again renew to you our previously stated offer to submit
Dr. MacDonald to full questioning by attorneys of the Depart-
ment of Justice.”

The chief of the General Crimes Section replied on January 23,
1974:
“For your information, this ease is under active investigation
and will remain under consideration for the foreseeable future.
“T do not believe it would serve any useful purpose at this
time to accede to your request that Jeffrey MacDonald be
questioned by attorneys from the Department of Justice.’’

14 Appendix
denied him the right to a speedy trial. The district court
denied the motion, holding that MacDonald’s right to a
speedy trial did not arise [202] until the government ac-
cused him of the crime by the return of the indictment in
January 1975.7

Ill

To determine whether a person charged with crime has
been denied a speedy trial in violation of the sixth amend-
ment, it is necessary to weigh the conduct of both the prose-
eution and the defendant. Barker v. Wingo, 407 U.S. 514,
530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Recognizing that
this balance compels an ad hoe appraisal of each case,
Barker identified four factors that must be considered. They
are “[ljength of delay, the reason for the delay, the defend-
ant’s assertion of his right, and prejudice to the defendant.”
407 U.S. at 530, 92 S.Ct. at 2192. We will assess each sep-
arately.

Length of delay. The critical issue concerning this aspect
of the case is the identification of the event, and consequently
the date, marking the beginning of the delay, The district
court accepted the government's position that MacDonald’s

7. In its order denying MacDonald’s motion, the district court
said :

“By this motion [to dismiss the indictment for denial of the
right to speedy prosecution and trial] the defendant takes the
government to task for pre-indictment delay amounting to
almost five years between the date of the crime on February
17, 1970, and the return of the indictment by the grand jury
on January 25, 1975. The government has undertaken to
justify the delay on the grounds that ‘because of government
bureaucracy’ the facilities of the crime laboratory of the Fed-
eral Bureau of Investigation were not brought into the case
until the grand jury was finally convened in August of 1974.
The right to a speedy trial under the Sixth Amendment does
not arise until a person has been ‘aceused’ of a crime, and in
this case this did not occur until the indictment had been re-
turned. On the authority of United States v. Marion, 404 U.S.
307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the motion of de-
fendant is denied.”’

Appendix 15
right to a speedy trial arose only after he was indicted in
January 1975. MacDonald acknowledges that no significant
delay has occurred since then. He contends, however, that
the delay commenced when the Army formally charged him
with murder on May 1, 1970, and restricted him to quarters.
The length of delay, therefore, depends entirely on whether
the pre-indictment delay on which MacDonald relies is of
constitutional significance.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455,
30 L.Ed.2d 468 (1971), the Court held that a three-year
delay between the commission of a crime and indictment
did not infringe the right to a speedy trial. The defendants
in that case, however, were not arrested or formally ac-
cused of crime until the return of the indictment. Noting
this, the Court carefully avoided adopting a simplistic rule
that pre-indictment delay is always immaterial. Instead,
referring to the values which the speedy trial provision safe-
guards, the Court explained that arrest furnishes an alter-
native starting point for determining the length of delay. It
said:

“TT]t is readily understandable that it is either a for-
mal indictment or information or else the actual re-
straints imposed by arrest and holding to answer a
criminal charge that engage the particular protections
of the speedy trial provision of the Sixth Amendment.

“Invocation of the speedy trial provision thus need

not await indictment, information, or other formal
charge. . .” 404 U.S. at 320-21, 92 S.Ct. at 463.

Reiterating these principles in Dillingham v. United
States, 423 U.S. 64, 96 S.Ct. 308, 46 L.ld.2d 205 (1975), the
Court held that even when the defendant has not shown
actual prejudice, the time elapsing between arrest and in-
dictment must be considered in appraising the alleged denial
of a speedy trial. It is, therefore, essential to determine
whether MacDonald’s military arrest “engage[d] the par-

16 Appendix
ticular protections of the speedy trial provision of the Sixth
Amendment.” Marion, 404 U.S. at 320, 92 S.Ct. at 463.

On May 1, 1970, MacDonald’s commanding officer charged
under oath that MacDonald, acting with premeditation, mur-
dered his wife and two daughters. Simultaneously, the com-
manding officer [203] recommended trial by general court-
martial. The charge was the functional equivalent of
a civilian arrest warrant, for under U.C.M.J. Article 10, 10
U.S.C. § 810, it subjected MacDonald to arrest or confine-
ment.® Like its civilian equivalent, military arrest must be
based on probable cause.’® The status of an officer restricted

8. U.C.M.J. Art. 30, 10 U.S.C. § 830, provides:

“(a) Charges and specifications shall be signed by a person
subject to this chapter under oath before a commissioned offi-
cer of the armed forces authorized to administer oaths and
shall state—

(1) that the signer has personal knowledge of, or has
investigated, the matters set forth therein; and

(2) that they are true in fact to the best of his knowl-
edge and belief.

“(b) Upon the preferring of charges, the proper authority
shall take immediate steps to determine what disposition
should be made thereof in the interest of justice and disci-
pline, and the person accused shall be informed of the charges
against him as soon as practicable.”

9. U.C.M.J. Art. 10, 10 U.S.C. § 810, provides:

“Any person subject to this chapter charged with an offense
under this chapter shall be ordered into arrest or confinement,
as circumstances may require; but when charged only with an
offense normally tried by a summary court-martial, he shall
not ordinarily be placed in confinement. When any person
subject to this chapter is placed in arrest or confinement prior
to trial, immediate steps shall be taken to inform him of the
specific wrong of which he is accused and to try him or to dis-
miss the charges and release him.”

10. U.C.M.J. Art. 9, 10 U.S.C. § 809, provides:
_ “(a) Arrest is the restraint of a person by an order, not
imposed as a punishment for an offense, directing him to re-

main within certain specified limits. Confinement is the physi-
eal restraint of a person.

“(e) A commissioned officer, a warrant officer, or a civilian
subject to this chapter or to trial thereunder may be ordered

*

Appendix 17
to quarters under arrest differs from that of one who is
simply restricted to quarters in lieu of arrest. The distinc-
tion depends on whether the accused is relieved of his mili-
tary duties. He is considered to be restricted under arrest if
relieved of his duties, and in lieu of arrest if he is not.”
Because MacDonald was relieved of his duties, he was re-
stricted to quarters under arrest.

As the government’s counsel acknowledged at oral argu-
ment, had MacDonald been an enlisted man, he probably
would have been confined in a stockade. While his restric-
tion to the bachelor officers’ quarters was undoubtedly more
comfortable and less confining than imprisonment in a guard
house, it was nevertheless a public act that seriously inter-
fered with his liberty. He was relieved of his duties, his
phone ealls were logged by a military policeman, and he
was placed under the surveillance of an escort officer when-
ever he left his quarters.

The government relies on Wales v. Whitney, 114 U.S.
564, 5 S.Ct. 1050, 29 L.Ed. 277 (1885), to support its argu-
ment that MacDonald’s status was not analogous to that of
a civilian who has been arrested. In Wales, the Medical Di-
rector of the Navy, who had been placed under arrest and
restricted to the city of Washington, D.C., pending court-
martial, sought a writ of habeas corpus to test the jurisdic-
tion of the military court. The Supreme Court, noting that

into arrest or confinement only by a commanding officer to
whose authority he is subject, by an order, oral or written,
delivered in person or by another commissioned officer. The
authority to order such persons into arrest or confinement
may not be delegated.

“(d) No person may be ordered into arrest or confinement
except for probable cause.”’

11. See § 20a and b, Manual for Courts-Martial (U.S. 1969 rev.
ed.).

18 Appendix

Washington was his place of duty, observed that “[i]t is not
easy to see how he is under any restraint of his personal
liberty, by the order of arrest, which he was not under
before.” The Court held that the physical restraint of the
Medical Director was insufficient as a matter of fact, and the
moral restraint imposed by the order was insufficient as a
matter of law, to justify issuance of the writ. In reaching
this conclusion, the Court pointed out that other procedures
allowed the Medical Director to challenge the military
court’s jurisdiction, and consequently the denial of his peti-
tion did not deprive him of an adequate remedy.

We find the government’s attempt to equate MacDonald’s
situation to Wales’ unpersuasive. MacDonald’s arrest is dis-
tinguished from Wales’ by the greater limita- [204] tions
placed on his liberty. Apart from this, “{n]otions of custody
have changed” since 1885, Strait v. Laird, 406 U.S, 341, 351,
92 8.Ct. 1693, 32 L.Ed.2d 141 (1972) (Rehnquist, J., dissent-
ing), and Wales’ custody requirement for a writ of habeas
corpus “may no longer be deemed controlling.” Hensley v.
Municipal Court, 411 U.S, 345, 350 n. 8, 93 S.Ct. 1571, 1574,
36 L.Ed.2d 294 (1973).

In any event, the standard employed by the Court in
Wales to evaluate a restraint of liberty for the procedural
requirements of habeas corpus provides an unsatisfactory
measure to test the denial of the sixth amendment’s guaran-
tee to a speedy trial. The appropriate test is found in
Marion, not Wales. MacDonald was subjected to “actual
restraints imposed by arrest and holding to answer a
criminal charge.” Marion, 404 U.S. at 320, 92 S.Ct. at 463.22

12. The Assistant United States Attorney for the Eastern Dis-
trict of North Carolina, appearing for the government in the bail
hearing before a magistrate for the United States District Court for
the Central District of California, described MacDonald’s status as
tullows:

Appendix 19
It is these circumstances, as the Court points out, “that
engage the particular protections of the speedy trial pro-
vision of the Sixth Amendment.” Marion, 404 U.S. at 320,
92 S.Ct. at 463. We conclude, therefore, that MacDonald’s
military arrest was the functional equivalent of a civilian
arrest allowing him to invoke the sixth amendment’s guar-
antee of a speedy trial.

For the purpose of determining whether the sixth amend-
ment applies, it is immaterial! that, although the Army
initially accused and arrested MacDonald, the civilian arm
of the government is currently prosecuting him." The
prosecution of the same charge—murder—that the Army
began was pursued by the Department of Justice. The
sixth amendment, we hold, secures an accused’s rights to a
speedy trial against oppressive conduct by the government
in its single sovereign capacity, regardless of the number
and character of the executive departments that participate
in the prosecution.

MacDonald’s freedom from detention or bail during the
interval between the termination of the Article 32 proceed-
ings and his arrest after indictment did not, from a practical
standpoint, dispel the effects of the government’s initial
accusation. MacDonald, of course, realized that the favor-
able conclusion of the Article 32 proceedings was not the

“Back in the Article 32 hearing, he was in custody. He did
have an officer with him, assigned to him, as Mr. Segal eXx-
plained to you. He was, more or less, I believe they eall it
house arrest at the BOQ. And then, of course, once he was
released on the charges, he was no longer required to have
another Army officer with him. Shortly after that, he was dis-
charged from the Service.”

13. We agree with the government that Fed.R.Crim.P. 48(b)
did not control the military proceedings against MacDonald and
thus was not applicable to him until his arrest by civilian authori-
ties, cf. Boeckenhaupt v. United States, 392 F.2d 24 (4th Cir. 1968).

20 Appendix

end of the government’s efforts to convict him, Prudence
obliged him to retain attorneys at his own expense for his
continuing defense. He remained under suspicion and was
subjected to the anxiety of the threat of another prosecu-
tion.

The absence of imprisonment or bail does not always
render inoperative the constitutional guarantee of a speedy
trial.” [205] In Klopfer v. North Carolina, 386 U.S. 213,
87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the Court held that the
practice of nolle prossing an indictment with leave to
reinstate it deprived an accused of his right to a speedy
trial even though he was not confined or required to post
bail. Alopfer differs from this case in one respect: there,
an indictment remained potentially effective during the
period of delay; here, MacDonald was not indicted until
the end of the period. Apart from the absence of an indict-
ment, MacDonald’s situation bears a marked resemblance

14. MacDonald alleges that his legal expenses for contesting
the Army proceedings against him and for retaining counsel since
then amount to $50,000. He estimates that expenses of trial would
amount to an additional $250,000.

15. Although the government acknowledges that the Speedy
Trial Act of 1974 does not govern this ease, it contends that the
principles codified in 18 U.S.C. § 3161(h)(6) and its prototype,
ABA, Standards Relating to Speedy Trial § 2.3(f) (App. draft
1968), should be applied to toll the running of time during the
interval from the dismissal of the Army’s charges against Mac-
Donald in October 1970 to the return of the indictment in 1975.
However, the tolling provision of § 3161(h)(6) must be read in
conjunction with the entire Act, which sets fixed time limits after
arrest, subject to certain exclusions, within which trial must take
place. A single section of the Act should not be used outside of its
statutory context as a standard for interpreting the sixth amend-
ment, because the Act does not purport to mark the bounds of the
sixth amendment’s speedy trial clause. In contrast, Barker v.
Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which
eschews rigid time limits, provides the analysis which we must
follow in determining whether the sixth amendment’s guarantee
has been violated.

Appendix 21
to Klopfer’s. After formal arrest and charge, both men
contested their accusations with the inconclusive result of
Klopfer’s mistrial and the dismissal of the charges against
MacDonald after the Article 32 proceedings. The prosecu-
tion against both men, however, could have gone forward
promptly—Klopfer’s by retrial and MacDonald’s by court-
martial if the commanding general had rejected Colonel
Rock’s Article 32 report or if the United States Attorney
had presented the case to a grand jury.’® Nevertheless,
neither man was held for trial. Consequently, Klopfer and
MacDonald were free from imprisonment or the restraints
of bail, but at all times they were subject to prosecution.
Unlike defendants held pending trial, Klopfer and Mac-
Donald were deprived of any forum in which to vindicate
themselves. Most importantly, under the theory advanced
by the state in Alopfer and by the federal government here,
neither man would be safeguarded by the sixth amendment
until the government, at its leisure, renewed the prosecution.

Speaking of the purposes of the sixth amendment’s
speedy trial provision, the Court said in United States v.
Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463 (1971):

“Tnordinate delay between arrest, indictment, and
trial may impair a defendant’s ability to present an
effective defense. But the major evils protected against
by the speedy trial guarantee exist quite apart from
actual or possible prejudice to an accused’s defense.
To legally arrest and detain, the Government must
assert probable cause to believe the arrestee has com-
mitted a crime. Arrest is a public act that may seriously
interfere with the defendant’s liberty, whether he is
free on bail or not, and that may disrupt his employ-
ment, drain his financial resources, curtail his associa-

16. U.C.M.J. Arts. 18, 32-34, 10 U.S.C. §§ 818, 832-34; 9] 34
and 35 Manual for Courts-Martial (U.S. 1969 rev. ed.); 18 U.S.C.
§§ 1111 and 3231.

Appendix
tions, subject him to public obloquy, and create anxiety
in him, his family and his friends. These considerations
were substantial underpinnings for the decision in
Klopfer v. North Carolina...”

The considerations which the Court recognized as “sub-
stantial underpinnings” for affording Klopfer the protec-
tion of the sixth amendment apply also, we believe, to Mac-
Donald, whose situation, viewed realistically, was similar
to Klopfer’s.

The delay between the accusation and detention of Mac-
Donald and his indictment was more than four and one-half
years. The Court described a five-year delay as “extraordi-
nary” in Barker, 407 U.S. at 533, 92 S.Ct. 2182, and in
United States v. Macino, 486 F.2d 750 (7th Cir. 1973), a
28-month delay between arrest and indictment was con-
sidered excessive. We conclude, therefore, that the delay in
MacDonald’s case is sufficiently long to justify “inquiry
into the other factors that go into the balance” of assessing
MacDonald’s claim that he has been denied a speedy trial.
Barker, 407 U.S. at 530, 92 S.Ct. 2182.

The reason for the delay. Barker teaches that the weight
to be given delay varies with the government’s reasons.
Deliberate delay to hamper the defense must be weighed
heavily against the government, and valid reasons such as
a missing witness serve to excuse the delay. Neither of
these [206] extremes applies to MacDonald’s case, which
appears to fall in a middle ground. Speaking of this, the
Court said that a “neutral reason such as negligence or
overcrowded courts should be weighed less heavily but
nevertheless should be considered since the ultimate respon-
sibility for such circumstances must rest with the govern-
ment rather than with the defendant.” 407 U.S. at 531, 92
S.Ct. at 2192.

Appendix 23

There are several identifiable phases of delay and the
reasons for them differ. During the initial period, the 1970
Army investigation and Article 32 proceeding, MacDonald
was being prosecuted, so the inaction of civilian authorities
was justified. For the next 18 months, at the request of the
Department of Justice, the CID conducted another exten-
sive investigation, Since ‘the charges had been previously
dismissed for insufficient evidence, the civilian prosecutors
understandably desired a new investigation before bringing
MacDonald to trial. The investigators were not dilatory
and the case is complex, so this delay should not be weighed
heavily against the government. See Barker, 407 U.S. at 531,
92 S.Ct. 2182.

The CID’s report, along with its recommendation to
prosecute, was transmitted to the Department of Justice in
June 1972, more than two years before the commencement
of grand jury proceedings. The government has not pro-
vided any satisfactory explanation for this two-year hiatus.
It suggests that the need for further investigation and for
its attorneys to become familiar with the case justifies the
delay. But no significant new investigation was undertaken
during this period, and none was pursued from August
1973 until the grand jury was convened a year later. More-
over, the United States Attorney was familiar enough with
the ease to recommend prosecution and specify his need for
an additional attorney in the summer or fall of 1973. There
is no indication in the record that the delay during this
period was “inevitable” because of “[e]rowded dockets, the
lack of judges or lawyers,” or any other factor which might
mitigate the government’s failure to bring MacDonald to
trial promptly after the CID completed its report in June
1972. See Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564,
96 L.Ed.2d 26 (1970). The leisurely pace from June 1972

24 Appendix

until the indictment was returned in January 1975 appears
to have been primarily for the government’s convenience.’*
The Assistant United States Attorney for the Eastern
District of North Carolina, who is familiar with the case,
expressed an even harsher assessment of the delay. He told
the magistrate at the bail hearing that the tangible evidence
had been known to the government since the initial investi-
gation in 1970 but that it had not been fully analyzed by
the F.B.I. until the latter part of 1974. He explained that
the F.B.I. analysis was tardy “because of government
bureaucracy.”"* Whether one attributes the delay [207]

17. The government may have proceeded on the erroneous as-
sumption that no matter how much time elapsed between prosecu-
tions, the pre-indictment delay would be of no consequence. But a
mistake of law affords no justification for depriving an accused of
sixth amendment rights. Dickey v. Florida, 398 U.S. 30, 90 S.Ct.
1564, 26 L.Ed.2d 26 (1970).

18. During the course of the government’s summation at the
bail hearing, the Assistant United States Attorney and the Magis-
trate engaged in the following colloquy:

ASSISTANT UNITED STATES ATTORNEY: Your Honor,
there is, I am sure, some question about the five-year period of time
in here. This case has been investigated over a five-year period of
time. It was not until very recently that the FBI Laboratory came
into the case. Previously, the investigation of the ease from a scien-
tifie viewpoint was by the Army CID Lab.

At the time of the Article 32 hearing in 1970 when Dr. Mae-
Donald was released from the Army charges, much of the scientific
evidence that I’ve made available to you today was not available
to the hearing officer at that time.

THE MAGISTRATE: But this evidence has been gone over—
this evidence is four or five years old now...

ASSISTANT UNITED STATES ATTORNEY: Yes. The evi-
dence with regard to the pajama top, the bath mat and the sheet:
All that evidence has been produced within the last five months by
the FBI Lab.

THE MAGISTRATE: But that evidence—the analysis of that
evidence was within the last five months, is that correct?

ASSISTANT UNITED STATES ATTORNEY: Yes, sir. The
evidence was in existence the whole time: The bloody sheet, the
bath mat and the—

THE MAGISTRATE: The time—three to four years passed
between the creation of the evidence and its analysis?

Appendix 25
from mid-1972, when the CID recommended prosecution,
until the indictment was returned in January 1975 to indif-
ference, negligence, or ineptitude, it must be weighed
against the government. Barker, 407 U.S. at 514, 92 S.Ct.
2182; Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Id.
2d 26 (1970). We turn, therefore, to the third factor pre-
scribed by Barker, an appraisal of MacDonald’s conduct.

The defendant’s assertion of his right. In Barker the
Supreme Court observed that some defendants may wish to
delay trial in expectation of the prosecution’s case becoming
stale. 407 U.S. at 521, 92 S.Ct. 2182. At the same time, it
rejected a strict “demand-waiver” approach that requires
a defendant to assert the right or lose it. 407 U.S. at 524-29,
92 S.Ct. 2182. It recognized, however, that an important
factor in deciding a claim that a defendant has been denied
a speedy trial is whether he wanted one and made his de-
mands known to the prosecution. 407 U.S. at 531-32, 92
S.Ct. 2182.

MacDonald has by no means delayed the prosecution of
his case. While he was in the Army, and afterwards, he gave
statements to the CTD. THe testified under cross-examination
in the Article 32 hearing and offered to submit himself to
questioning by attorneys in the Department of Justice.
Additionally, he waived immunity and testified hefore the
grand jury.

MacDonald also has consistently expressed a desire to
have the case resolved. He first attempted to expedite a

ASSISTANT UNITED STATES ATTORNEY: That’s correct.

THE MAGISTRATE: Very well.

ASSISTANT UNITED STATES ATTORNEY: We were not
—Beecause the FBI Lab, because of Government bureaucracy, did
not come into the ease, and we were unable to get them into the
ease until the beginning of this Grand Jury.

Prior to that time, the Army CID Lab out of Fort Gordon
handled it, and they do not have the sophistication that the FBI
Lab has, and they will admit that.

26 Appendix

decision in January 1972. Later, his attorneys wrote the
department several letters inquiring about a final decision
on the prosecution to relieve “the unfounded suspicion” to
which MacDonald was subjected.” A person in his position
who has been arrested but not indicted is under no compul-
sion to demand prosecution in order to preserve his right to
a speedy trial, for the primary responsibility for bringing
cases to trial rests on the government. United States v.
Macino, 486 F.2d 750 (7th Cir. 1973) ; ef. Barker, 407 U.S.
at 529, 92 S.Ct. 2182. Both the facts and the law, therefore,
warrant the conclusion that MacDonald reasonably asserted
his right to a speedy trial. In accordance with Barker, his
assertion “is entitled to strong evidentiary weight in de-
termining whether [he] is being deprived of the right.”
407 U.S. at 531-32, 92 S.Ct. 2182, 2192.

Prejudice to the defendant. An affirmative demonstra-
tion of prejudice is unnecessary to prove a denial of the
right to a speedy trial. It is, however, one of the factors a
court must weigh in adjudicating the accused’s claim. Moore
v. Arizona, 414 U.S. 25, 94 8.Ct. 188, 38 L.Ed.2d 183 (1973) ;
Barker, 407 U.S. at 533, 92 S.Ct. 2182. The Court has said
the sixth amendment’s guarantee of a speedy trial is “an
important safeguard to prevent undue and oppressive
incarceration prior to trial, to minimize anxiety and concern
accompanying publie accusation and to limit the possibili-
ties that long delay will impair the ability of an accused to
defend himself.” United States v. Ewell, 383 U.S. 116, 120,
86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). Prejudice, there-
fore, should he assessed in the light of these interests.
Barker, 407 U.S. at 532, 92 S.Ct. 2182.

MacDonald was not imprisoned or subject to bail from
October 1970 until January 1975, but his freedom to come

19. Extracts from some of the letters are quoted in notes 5 and
6 supra.

Appendix 27
and go is not decisive. An accused person who [208] is not
restrained may nonetheless be prejudiced. Klopfer v. North
Carolina, 386 U.S 213, 221, 87 S.Ct. 988, 18 L.Ed.2d 1
(1967). MacDonald has had to live with the constant threat
of a new prosecution. He has been required to retain counsel
at his own expense, and he has suffered anxiety concerning
the unresolved nature of the ease. These personal concerns
are significant elements of prejudice. United States v. Mari-
on, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Also, MacDonald’s claim that his ability to defend himself
has been impaired is not unfounded. Most of his witnesses
who were in the Army in 1970 have scattered across the
country. Even if the government provides the defense with
current addresses, interviewing these witnesses before trial
and insuring their presence at trial would he time-consum-
ing and expensive. Moreover, in the five vears since the
murders, memories have faded and witnesses can no longer
he expected to reliably recall details.

Such potential memory loss is critical in this case, since
a detailed reconstruction of the murder scene is an element
of the government’s case. The position of a flowerpot, the
way MacDonald’s pajama top was folded, the condition of
the sheets in the bedroom, are but examples of the many
questions about physical evidence that the government’s
ease turns on. In one instance, the government contended at
the Article 32 hearing that an overturned coffee table lving
on its side showed that the murder seene was staged, since
the table was top-heavy and would have turned completely
over if kicked in a seuffle. When the Article 32 officer visited
the scene and kicked the table over, however, it struck a
chair and landed on its side. Thus, the exact position of the
chair is important in determining whether MacDonald
staged the murders as the government charges.

28 Appendix

The prosecution emphasizes that all of the testimony at
the Article 32 hearing and the statements made to investiga-
tors since then have been kept and may be used to refresh
memories. Yet this in itself illustrates the prejudice to Mac-
Donald. A stale witness, forced to rely on statements made
half a decade previously, cannot he as effective as one
actually remembering what he saw. Since the details of any
witness’s testimony may change over five vears, the adverse
inference a jury might draw from the government’s use of
its old records to impeach defense witnesses cannot be
overlooked.

In sum, applying the principles of United States v.
Marion, 404 U.S. 307, 320-21, 92 S.Ct. 455, 30 L.Ed.2d 468
(1971), we conclude that for the purposes of determining
whether MacDonald was denied his right to a speedy trial,
the Army’s formal accusation and detention on May 1, 1970,
entitled him to invoke the protection of the sixth amend-
ment. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct.
303, 46 L.Fd.2d 205 (1975). Weighing the factors specified
by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972), we believe that the delay—even if the period
from May 1, 1970, to June 30, 1972, is wholly excluded as
excusable—was of sufficient length to be “presumptively
prejudicial.” 407 U.S. at 530, 92 8.Ct. 2182. The delay, there-
fore, necessitates inquiry into the other factors of the
balance. The government has furnished no satisfactory ex-
planation for the delay from the end of June 1972 until the
grand jury was convened in August 1974, so this time must
be weighed against it. MacDonald, on the other hand, neither
contributed to this delay nor acquiesced in it, so his conduct
weighs heavily in his favor. Finally, it is apparent from the
record that MacDonald has been prejudiced by the formal
accusation and arrest of May 1970, by anxiety arising out

EE ——————er

Appendix 29
of the delayed resolution of this charge, and by the impedi-
ment to his defense that scattered witnesses and dimmed
memories inevitably cause. Weighing all of these factors,
we conclude that the government has denied MacDonald
a speedy triai as guaranteed by the sixth amendment and

that the prosecution must be dismissed. Strunk v. United
States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

[209] IV

We find no error in the district court’s rulings concern-
ing the composition of the grand jury, alleged prosecutorial
miseonduct, and the denial of motions for discovery and
suppression of evidence.

MacDonald claims that General Flanagan’s acceptance of
his exoneration in the Article 32 hearing collaterally estops
the government from prosecuting him again. Alternatively,
he argues that the second prosecution places him in double
jeopardy. The government argues, however, that the Article
32 proceedings did not place MacDonald in jeopardy since
only a court-martial, which was never convened, could have
convicted him. Decision of this aspect of the ease depends
largely on the legal effect of the acceptance of an Article 32
recommendation by the commanding officer. It appears that
custom imputes finality to the commanding officer’s decision.
This would arguably sustain a plea of collateral estoppel, if
not double jeopardy, but no military regulation or case
specifically deals with this question. In view of the unset-
tled state of this point of military law and of our disposi-
tion of the case under the speedy trial provision of the sixth
amendment, we find it unnecessary and imprudent to render
an opinion, which would in effect be advisory, on an issue
of general importance to military law.

The ease is remanded with directions to dismiss the pros-
ecution with prejudice because of the government’s failure

30 Appendix
to accord MacDonald a speedy trial as required by the sixth
amendment.

CRAVEN, Circuit Judge (dissenting) :

My brothers hold that the sixth amendment compels the
dismissal of the only prosecution ever begun against Dr.
MacDonald. One need know very little about military law
to understand that a charge of homicide can be disposed of
finally only by court-martial. None was ever convened. In-
stead, the Army, pursuant té Article 32, Uniform Code of
Military Justice,’ simply conducted a “thorough and im-
partial investigation” to determine whether the charge
might be referred to a general court-martial, and concluded
that the evidence was insufficient to justify the convening of
a general court. It is true that the hearing was protracted
and made newspaper headlines. But it is also true, it seems
to me (my brothers do not reach the question), that Captain
MacDonald has never been put to trial by either a civil or
military court. What happened to him in the Army is the
substantial equivalent of an open grand jury proceeding
resulting in the failure to return a true Dill, and that is all.?

1. 10 U.S.C. § 832.

2. My brothers premise their analysis on an application of a
civilian court of the sixth amendment speedy trial guarantee to
events which occurred while MacDonald was in the military.

That the sixth amendment’s speedy trial guarantee applies to the
military is an appealing assumption but should be recognized as
such. The eriminal trial provisions of both the fifth and sixth
amendments are clearly aimed at procedure in the civil courts. The
fifth expressly excludes cases arising in the land or naval forces
from prosecutions requiring grand jury indictment, and it is
settled that neither the fifth nor sixth amendments can “be taken
to have extended the right to demand a jury to trials by military
commission ....’? 2x Parte Quirin, 317 U.S. 1, 40, 63 S.Ct. 1, 17, 87
L.Ed. 3 (1942). It is true that the Supreme Court once assumed the
application of the double jeopardy clause of the fifth amendment in
a military context, but in doing so it is significant that it denied
relief. Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974

Appendix 31
My brothers hold that the sixth amendment’s guarantee
of the right to a speedy trial as interpreted by the Supreme
Court [210] in Marion,’ Barker, and Dillingham, is trig-
gered by the Army proceedings. I think not and respectfully
dissent.
I.
In Marion the Supreme Court defined the point at which
the sixth amendment becomes applicable :

On its face, the protection of the Amendment is
activated only when a criminal prosecution has begun
and extends only to those persons who have been
“accused” in the course of that prosecution. These pro-
visions would seem to afford no protection to those not
yet accused, nor would they seem to require the Govern-
ment to discover, investigate, and accuse any person
within any particular period of time.

404 U.S. at 313, 92 S.Ct. at 459 (emphasis added).

It is now settled that a civilian becomes an “accused”
when he is arrested and charged with a crime. This is so,
the Supreme Court tells us, because :

(1949). I think my brothers’ decision would rest on firmer ground
if it were pitched on the fundamental fairness doctrine implicit in
the due process clause, which has been applied time and again to an
infinite variety of matters not restricted to criminal procedure in
the civilian courts, as is, I think, the sixth amendment right to
speedy trial. See generally, O’Callahan v. Parker, 395 U.S, 258, 272-
73, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969); Kinsella v. Krueger, 351
U.S. 470, 474, 76 S.Ct. 886, 100 L.Ed. 1342 (1956); Duncan v.
Kahanamoka, 327 U.S. 304, 309, 66 S.Ct. 606, 90 L.Ed. 688 (1946) ;
Burns v. Lovett, 91 U.S. App.D.C. 208, 202 F.2d 335, 341-42
(1952), aff'd sub nom., Burns v. Wilson, 346 U.S. 137, 73 S.Ct.
1045, 97 L.Ed. 1508 (1953).

3. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30
L.Ed.2d 468 (1971).

4. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972).

5. Dillingham v. United States, 403 U.S. 64, 96 S.Ct. 303, 46
L.Ed.2d 205, 44 U.S.L.W. 3327 (U.S., Dee. 1, 1975).

32 Appendix

To legally arrest and detain, the Government must
assert probable cause to believe the arrestee has com-
mitted a crime. Arrest is a public act that may seriously
interfere with the defendant's liberty, whether he is
free on bail or not, and that may disrupt his employ-
ment, drain his associations, subject him to publie
obloquy, and create anxiety in him, his family and his
friends.

Marion, supra at 320, 92 S.Ct. at 463. See Dillingham v.
United States, 403 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205
(1975) (quoting Marion).

Thus, “it is either a formal indictment or information or
else the actual restraints imposed by arrest and holding
to answer a criminal charge that engage the particular
protections of the speedy trial provision of the Sixth Amend-
ment.” Dillingham, supra; Marion, supra.

It is significant to me that the Court equates “either a
formal indictment .. . or else the actual restraints imposed
by arrest ... to answer a criminal charge... .” It does
not suggest that the amendment is triggered when the
prosecutor presents the bill to the grand jury, Instead, the
period of time for measuring the speed of the trial runs
from the return of a true bill into the court, Charge is not
enough. At most, Dr. MacDonald was “charged.” Also,
under the specific language of Marion, T do not believe the
sixth amendment’s speedy trial guarantee would be brought
into play by an arrest without warrant by a federal drug
enforcement officer, for example, if, upon presentation to
a magistrate, the arrestee were released because no probable
cause was shown. I do not believe my brothers would econ-
tend otherwise.®

6. I note that Dillingham was arrested on a warrant. United
States v. Palmer, 502 F.2d 1233, 1234 (5th Cir. 1974), rev’d sub
nom. Dillingham v. United States, 403 U.S. 64, 96 S.Ct. 303, 46
L.Ed.2d 205, 44 U.S.L.W. 3327 (1975).

Appendix 33

My analysis of the facts of this case is that the procedure
in which MacDonald was involved falls somewhere between
an unsuccessful presentation to a grand jury and an arrest
and subsequent release because of a failure to demonstrate
probable cause for the arrest. Neither, T believe, warrants
an application of the sixth amendment’s speedy trial guar-
antee.?

MacDonald was charged with the murder of his wife
and children by Colonel Francis Kane, his immediate com-
mander, These charges were preferred under Article 30
[211] U.C.M.J.* That article makes clear that a finding of
“probable cause” is not required to “charge” an individual
under the Code.® Indeed, anyone subject to the U.C.M.J.
can prefer charges against anvone else who is also under
the Code.’° A determination of probable cause, or its “fune-
tional equivalent,” is only made under military procedure
at the Article 32 proceedings."

7. This case differs from both my examples in that during these
proceedings MacDonald was neither as free from restraints as a
person under grand jury investigation nor as restricted as someone
under civilian arrest. See part II, infra,

8. 10US.C. § 830.

9. Article 30 reads as follows:

(a) Charges and specifications shall be signed by a person
subject to this chapter under oath before a commissioned
officer of the armed forces authorized to administer oaths and
shall state—

(1) that the signer has personal knowledge of, or has in-
vestigated, the matters set forth therein: and

(2) that they are true in fact to the best of his knowledge
and belief.

(b) Upon the preferring of charges, the proper authority
shall take immediate steps to determine what disposition
should be made thereof in the interest of justice and dis-
eipline, and the person aceused shall be informed of the
charges against him as soon as practicable.

10. { 25b, Manual for Courts-Martial (U.S. 1969 rey. ed.).

11. Article 32, 10 U.S.C. § 832 reads in relevant part :
(a) No charge or specification may be referred to a general
court-martial for trial until a thorough and impartial investi-

34 Appendix

In MacDonald’s case, at the close of the Article 32 pro-
ceedings Major General Wdward M. Flanagan, Jr., acting
on the report of Colonel Warren V. Rock, who presided at
those proceedings, dismissed the charges because “[i]n [his]
opinion, there [was] insufficient evidence available to justify
reference of the charges to trial by court-martial.”

It is therefore clear that no finding of probable cause was
made in Dr, MacDonald’s case at the Article 32 proceedings.
My brothers are of the view, however, that we should pre-
sume such a finding was made because it should have been
made prior to “arrest” under 10 U.S.C. § 810.

Whether a finding of probable cause was made is a ques-
tion of fact. If there were such a finding I should think it
would be supported by the record, but the majority makes
no reference to any orders, either written or oral, to indicate
that a finding of probable cause was made. We are not told
when the finding was made, who made it, or what procedures
he followed in doing so. Instead, as I have said, a presump-
tion is created.

First, my brothers reason that since MacDonald was re-
lieved of his duties, his status must be that of “arrest”
rather than “restriction to quarters in lieu of arrest.” See-
ondly, they correctly note that under 10 U.S.C. § 810 Mae-
Donald was subject to arrest or confinement when charged
with the murders by Colonel Kane on May 1. And finally,
they infer that since 10 U.S.C. § 809 purports to require that

gation of all the matters set forth therein has been made. This
investigation shall inelude inquiry as to the truth of the
matter set forth in the charges, consideration of the form of
charges, and a recommendation as to the disposition which
should be made of the case in the interest of justice and dis-
cipline.

Appendix 35
all arrests be supported by probable cause that probable
cause must have been found in MacDonald’s case.

I do not believe it is necessarily the case that because
MacDonald was relieved of his duties, he was arrested, I
read Paragraphs 20a and b of the Manual for Courts-
Martial only to say that an officer under “arrest” may not
be required to perform his duties and that an officer re-
stricted to quarters in lieu of arrest may be required to do
so. These two provisions do not forbid the Army from re-
lieving one restricted to his quarters of any or all of his
duties. That MacDonald was relieved of all duties is not,
I believe, conclusive as to this status.

I agree with my brothers, as I have previously said, that
MacDonald was subject to arrest or confinement under 10
U.S.C. §810 when charged with homicide, But I cannot
agree that the power to do a thing requires a finding that it
was done, Whatever the logic of such a presumption, I be-
lieve Paragraph 18b of the Manual of Courts-Martial de-
stroys it for that paragraph explicitly states that the arrest
and confinement pro- [212] visions, although couched in
terms of requirements, are “not mandatory and [their]
exercise rests within the discretion of the person vested with
the power to arrest or confine.”

I think the Manual of Courts-Martial will take us just
so far and that we are driven back to the facts, and the facts
are that Dr. MacDonald was verbally restricted to quarters

12. b. Basie consideration. (1) Any person subject to the
code accused of an offense wader the eode shall be ordered into
arrest or confinement, as circumstances may require; but when
accused only of an offense normally tried by a summary court-
martial, he shall not ordinarily be placed in confinement (Art. 10).
The foregoing provision is not mandatory and its exercise rests
within the discretion of the person vested with the power to arrest
or confine. No restraint need be imposed in cases involving minor
offenses. A failure to restrain does not affect the jurisdiction of the
court,

36 Appendix

by Colonel Kane on April 6, 1970, and there is nothing what-
soever in the record to suggest any change in his status
when he was formally charged on May 1. If MacDonald was
ever arrested it must have been on April 6 when he was
first restricted to quarters and his duties lifted, and on that
date I do not believe that anyone suggests the existence of
probable cause for arrest, let alone a specific finding to that
effect.

My brothers and I agree, I think, that arrest without more
is not enough to trigger the sixth amendment. There must
be a lawful arrest, i.e., with probable cause. It is fair to say,
I think, that there is not one word in the record to even sug-
gest that anyone, much less the equivalent of an impartial
magistrate, ever purported to find probable cause to arrest
Dr. MacDonald. I believe we can be fairly sure that this is
the first instance in the long history of the doctrine of prob-
able cause in which a court has assumed that there must
have been such a finding because it should have been made.

Finally, I cannot agree with my brothers that Colonel
Kane’s charge was the functional equivalent of a civilian
arrest warrant. I am not sure to what it should be equated,
but it is equally plausible to view it as the functional equiv-
alent of the complaint of the prosecutor who then must seek
an arrest warrant from an impartial magistrate.

Based on the above analysis I believe it is clear that a
finding of probable cause was never made in Dr. Mac-
Donald’s case. Unless we ignore as surplusage the Supreme
Court’s language in Marion, which it repeated in Dillingham,
that to “arrest and detain, the Government must assert prob-

13. All the majority tells us about that event is that on April 6
the CID informed MacDonald that “he was under suspicion.” At
200. I find nothing in their treatment of this encounter nor any-
— in the reeord to indicate that on that day probable cause was
found.

Appendix 37
able cause to believe the arrestee has committed a crime,”
I do not understand how this case can be fitted within the
rule of law established by those cases. Furthermore, I do
not believe that the policy underpinnings of Marion allow
us to ignore the significance of a finding of probable cause.
The Supreme Court concentrated on the impact of the
publie act of arrest on the defendant, I believe that funda-
mental to that impact is the fact that, in the civilian arrest
context with which Marion was concerned, an arrest must
be supported by probable cause. With reference to public
obloquy, contrast instead, what happened to Dr. MacDonald:
after the equivalent of the return of “not a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2385%3A1. Public record. Not legal advice.