Petition — United States v. MacDonald

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FILED

80-1582

MAR 18 191

No.

vas.

* vt

In the Supreme Court of the United States

OCTOBER TERM, 1980

UNITED STATES OF AMERICA, PETITIONER

JEFFREY R. MACDONALD

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

Jonx C. KEENEY

Acting Assistant Attorney General

ALAN I. HoROWwITz

Assistant to the Solicitor General

JOHN F. DEPUE

BRIAN M. MURTAGH.

Attorneys «

Department of Justice

Washington, D.C. 205380

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Speedy Trial Clause of the Sixth

Amendment applies to a period when a person is not

under arrest or formal accusation of a crime.

2. Whether respondent's constitutional rights

were violated by the delay between the commission

of the crime and the return of the indictment.

(1)

TABLE OF CONTENTS

Page

Opinions below eee 1

aa c c cp cc 2

Constitutional provision involved 2

. —— 2

Reasons for granting the petitio ooo 12

Conclusion e e een 21

Appendix A POR a. = SEIS Ng a ae ae la

CS ER AS SS EE Te 28a

NE EES RAEN — K —— 29a

T 50a

e 74a

TABLE OF AUTHORITIES

Cases:

Arnold v. McCarthy, 566 F.2d 13777 16

Barker v. Wingo, 407 U.S. 514. 5, 6, 8, 10, 16, 19-20

Dillingham v. United States, 423 U.S. 64. 12, 13, 20

Quirin, Be parte, $17 U. 8. 1 —————.—— 20

United States v. Avalos, 541 F. 2d 1100, cert. de-

e Scvcsnieechteesticccenboesealiodbdisbeiesees 16

United States v. Bishton, 468 F.2d 887ù77 15

United States v. Davis, 487 F. 2d 112, cert. denied,

r 17

United States v. Elsbery, 602 F.2d 1054, cert. de-

, a 14-15, 19

United States v. Flores, 501 F.2d 1350 16

United States v. Henry, 615 F.2d 1228 .................... 16

United States v. Hillegas, 578 F.2d 458 16

United States v. Lovasco, 431 U.S. 788 13, 17, 19, 21

United States v. Marion, 404 U.S. 307 ........ 5, 12, 18, 14, 20

(in)

Cases—Continued Page

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

e aac Tilicini, acnccisnansnieaciglienmcdtinnbabin 15

United States v. McClean, 528 F.2d 1250 16

United States v. Nixon, 684 F.2d 30 16

United States v. Provenzano, 423 F. Supp. 662,

Ss IE I hc acndccncnteseateticets chin ndacsncbedine 18

United States v. Stoker, 522 F.2d 57 16

Constitution and statutes:

United States Constitution:

Fifth Amendment — 11, 19, 21

Double Jeopardy Clause 7

r onc cccttcicsescnnsccccsosecccsecses 19

/ C — —— passim

Uniform Code of Military Justice, 10 U.S.C. 801

et seq.:

Article 30, 10 UBC. % 3, 20

Article SB, 10 UB.C. GBB .........0....cccccccccccccesessss 8,4

r 2

D Sees anti chiecntcmesenciennivctininncene 18

Miscellaneous:

Manual for Courts-Martial, United States (rev.

cr 4

In the Supreme Cuurt of the United States

OCTOBER TERM, 1980

No.

UNITED STATES OF AMERICA, PETITIONER

JEFFREY R. MACDONALD

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Fourth Circuit in this case.

OPINIONS BELOW

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

infra, la-27a) is reported at 632 F.2d 258. The

opinion and order on denial of rehearing (App. C,

infra, 29a-49a) is reported at 635 F.2d 1115. The

opinion of the district court (App. D, infra, 50a-73a)

denying respondent bail pending appeal is reported at

485 F. Supp. 1087.

(1)

JURISDICTION

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

infra, 28a) was entered on July 29, 1980. A petition

for rehearing was denied on December 18, 1980

(App. C, infra, 29a). On February 10, 1981, Justice

Brennan extended the time within which to file a

petition for a writ of certiorari to and including

March 18, 1981. The jurisdiction of this Court is

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

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the Constitution pro-

vides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy trial * * *.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Eastern District of North Caro-

lina, respondent was convicted on one count of first

degree murder and two counts of second degree

murder, in violation of 18 U.S.C. 1111. He was sen-

tenced to three consecutive terms of life imprison-

ment. The court of appeals reversed the convictions

and ordered dismissal of the indictment on the

ground that respondent’s Sixth Amendment right to

a speedy trial had been violated.

1. When the murders of which he was convicted

were committed, respondent was a physician holding

the rank of captain in the United States Army

Medical Corps and was stationed at Fort Bragg,

North Carolina. In the early morning of February

17, 1970, respondent’s wife and two daughters were

bludgeoned and stabbed to death in respondent's

quarters at the Fort Bragg military reservation.“

Respondent informed the military police that he had

been awakened by the screams of family members,

and that four unknown assailants had attacked him

and knocked him unconscious. The Army Criminal

Investigation Division (CID) and other authorities

immediately began an investigation of the crime.

Shortly after the murders, respondent gave investi-

gating officers a detailed account of his actions upon

regaining consciousness and discovering the bodies.

The investigators uncovered a great deal of phy-

sical evidence in the apartment. For example,

fibers from the pajama top that respondent was

wearing on the night of the murders were found in

various areas of the apartment. And the fact that

each member of the MacDonald family had a differ-

ent blood type enabled the investigators to identify

the source of each blood stain that was found. By

April 6, 1970, it became apparent to CID investi-

gators that many aspects of respondent’s story were

inconsistent with the physical evidence. Accordingly,

on that day respondent was advised of his rights and

informed that he was a suspect. He was relieved of

his medical duties and restricted to quarters. On

May 1, 1970, the Army formally charged respondent

with murder, pursuant to Article 30 of the Uniform

Code of Military Justice (UCMJ), 10 U.S.C. 830.

As required by Article 32 of the UCMJ, 10

U.S.C. 832, an investigating officer was appointed to

investigate the charges and to recommend whether

1The early background of this case is set out in the deci-

sions rendered before trial. United States v. MacDonald, 531

F.2d 196, 200-201 (4th Cir. 1976), rev’d, 485 U.S. 850 (1978).

they should be referred to a general court-martial

for trial. Following the Article 32 hearing, the in-

vestigating officer filed a report recommending dis-

missal of the charges and further investigation by

civilian authorities. On October 23, 1970, after re-

view of the report, the Commanding General of re-

spondent’s unit accepted the recommendation and

dismissed the charges because of insufficient evidence

available to justify their reference to trial by court-

martial. See Manual for Courts-Martial, United

States | 33f (rev. ed. 1969). In December 1970, the

Army granted respondent an honorable discharge for

reasons of hardship. Respondent then moved to Cali-

fornia and established himself as a practicing phy-

sician (App. D, infra, 55a).

At the request of the Department of Justice the

CID continued its investigation. The investigation

was quite extensive, involving several hundred inter-

views and numerous forensic tests of the victims’

clothing and other physical evidence found at the

crime scene. In June 1972, the CID transmitted to

the Justice Department a massive thirteen-volume

report recommending still further investigation (435

U.S. at 851). After the raw report had been exam-

ined by several persons within the Department, the

CID was requested to investigate some undeveloped

leads. The CID then conducted more interviews and

scientific tests and forwarded supplemental reports

to the Department on November 9, 1972, and August

20, 1973. In late May 1974, after further study, the

government determined that many unanswered ques-

tions in the complex case could be resolved only by

use of the investigative powers of a grand jury.

Therefore, in August 1974, a grand jury of the

United States District Court for the Eastern District

of North Carolina was empanelled. On January 24,

1975, the grand jury indicted petitioner on three

counts of premeditated murder.

2. Prior to trial, respondent moved to dismiss the

indictment on several grounds including double jeop-

ardy and denial of the right to a speedy trial. The

district court denied these motions. On the speedy

trial question, the court, relying on United States v.

Marion, 404 U.S. 307 (1971), concluded that (It he

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.” See 435 U.S. at 852.

Finding that the issue could properly be appealed

before trial, the court of appeals reversed and re-

manded with instructions to dismiss the indictment

on speedy trial grounds. 531 F.2d 196 (1976). The

court viewed the preferral of military charges against

respondent on May 1, 1970, and the attendant restric-

tion of his movement as “the functional equivalent of

a civilian arrest” (531 F.2d at 204). Accordingly,

it held that the Sixth Amendment guarantee of a

speedy trial attached at that time. Because petitioner

remained under suspicion and felt obliged to retain

a lawyer after the military charges were dismissed,

the court noted that his “freedom from detention”

during the years prior to his arrest after indictment

“did not, from a practical standpoint, dispel the ef-

fects of the government’s initial accusation” (ibid.).

Therefore, the court held that the delay of more than

four and one half years between the military accusa-

tion and the indictment triggered the balancing analy-

sis outlined in Barker v. Wingo, 407 U.S. 514 (1972),

for violations of the Sixth Amendment right to a

speedy trial.

Applying the Barker analysis, the court of appeals

conceded that the government had not deliberately

delayed charging respondent in order to hamper the

defense (531 F.2d at 205-206). However, the court

found that the government had provided no satisfac-

tory explanation for the delay between the transmit-

tal of the CID report to the Department of Justice in

June 1972 and the empanelling of the grand jury in

August 1974; instead this delay was ascribed to “in-

difference, negligence, or ineptitude” (531 F.2d at

207). The court also stated that respondent

“reasonably asserted his right to a speedy trial”

(ibid.). Finally, the court found that. respondent had

been prejudiced by the delay because of the need to

retain counsel, the anxiety produced by the threat of

a new prosecution, and the expectation that “in the

five years since the murders, memories have faded

and witnesses can no longer be expected to reliably

recall details” (id. at 207-208). The court concluded

that a weighing of these factors indicated a violation

of respondent’s Sixth Amendment right to a speedy

trial (id. at 208).

Judge Craven dissented (531 F.2d at 209-214).

He reasoned that because the military charges against

respondent had been dismissed in October 1970, and

because respondent had “stood under no ‘public accu-

sation’ ” during the four-year period prior to the in-

dictment, the majority’s conclusion that respondent’s

right to a speedy trial continued unabated from May

1970 until the return of the indictment in January

1975 was incorrect (id. at 212-213). Judge Craven

viewed respondent’s claim as one alleging a violation

of due process as a result of pre-indictment delay,

which he found unsupported by evidence of actual

prejudice (id. at 214).?

After the Fourth Circuit denied a petition for re-

hearing en banc by a 3-3 vote, this Court granted

certiorari. The Court reversed on the ground that an

interlocutory appeal may not be taken from the denial

of a motion to dismiss on speedy trial grounds. 435

U.S. 850 (1978). In light of its holding on the ap-

pealability issue, the Court did not reach the govern-

ment’s contention that the court of appeals had erred

in applying the protections of the Sixth Amendment

to the entire period from the military accusation to

the indictment. 435 U.S. at 863 n.9. On remand,

the court of appeals held that a trial on the federal

indictment would not violate the Double Jeopardy

Clause. 585 F.2d 1211 (1978).

3. After respondent’s trial and conviction by a

jury, he moved to vacate the conviction and dismiss

the indictment on speedy trial grounds. The district

court denied this motion (App. E, infra, 74a-75a),

setting forth its reasons in a decision denying re-

spondent bail pending appeal (App. D, infra, 50a-

73a). First, the court pointed out that respondent

2 Judge Craven also disputed the majority’s conclusion that

respondent had been subject to the civilian equivalent of

arrest as the result of the preferral of military charges and

his restriction to quarters. He reasoned that, although a

probable cause determination is a prerequisite to an arrest

as the term is used in the Sixth Amendment context, no such

determination is necessary for preferral of charges under

military law. Judge Craven concluded that the Army’s in-

quiry fell “somewhere between an unsuccessful presentation

to a grand jury and an arrest and subsequent release because

of a failure to demonstrate probable cause for the arrest,“

neither of which warrants invocation of the Sixth Amend-

ment’s speedy trial guarantee. 531 F.2d at 210-213.

had suffered neither “oppressive pretrial incarcera-

tion” nor “great anxiety and concern“ because of the

pre-indictment delay in that he had spent the ma-

jority of the period establishing himself in the prac-

tice of medicine in California (id. at 54a-55a). Then,

noting that it had paid specific attention during the

trial to the possibility of prejudice to the defense be-

cause of the delay (id. at 53a), the court stated that

„the fears expressed by the Fourth Circuit in its

1976 decision that [respondent’s] ability to defend the

case adequately might be seriously prejudiced by the

pre-indictment delay have not been borne out in the

record developed at trial“ (id. at 55a).* In the ab-

sence of any prejudice, the court concluded that re-

spondent’s speedy trial claim should be denied.

A divided court of appeals reversed (App. A, infra,

la-27a). The court explicitly adopted the reasoning

of the first panel with respect to three of the Barker

factors—the length of the delay, the reason for the

delay, and respondent’s assertion of his speedy trial

right (id. at 4a). It went on to discuss each of these

factors briefly. The court emphasized that the “mili-

tary arrest” of respondent triggered his speedy trial

right and thus that the relevant delay was the entire

period between the military arrest and trial” (ibid.).

The court noted, however, that the “most offending

delay” was the two-year period between the trans-

mission of the CID report to the Justice Department

8 Specifically, the court observed that the only material

witness who died during the delay was a government witness,

that several witnesses “vital to the defense” would have been

either unknown or unavailable if the trial had been con-

ducted shortly after commission of the offense, and that re-

spondent had not alleged any particular in which his defense

‘was prejudiced by the delay (App. D, infra, 55a-56a).

and the institution of the grand jury proceeding (id.

at 8a). The court characterized this delay as the

product of “sheer bureaucratic indifference” (id. at

7a).

Turning to the question of prejud e to the defense

at trial, the court noted that t] he substantial pos-

sibility of prejudice is what controls; it is not ineum-

bent on the defendant to prove that prejudice ines-

capably took place“ (App. A, infra, 11a). Citing

the “almost certain memory erosion” of the witnesses

(id. at 14a) and the difficulty that respondent would

have had, in light of the nine-year delay,“ in testing

the consistency of prosecution witnesses’ trial testi-

mony with their original statements, given the risk

that the prosecutors had bolstered their recollection

in preparing for trial (id. at 10a), the court con-

cluded that there was a “substantial possibility that

[respondent’s] defense was prejudiced by the delay”

(id. at 14a). In particular, the court noted that the

testimony of Helena Stoeckley, a defense witness,

“had a great potential for prejudice” (id. at IIa).

Stoeckley had made vague and contradictory remarks

to third parties on several occasions in the past that

indicated that she was present in respondent’s apart-

ment during the murders, but had testified at trial,

consistent with other earlier statements that she had

made, that her mind was essentially blank as to her

activities on the night of the murders. Although the

court. acknowledged thet, within a week of the mur-

ders, Stoeckley had told a neighbor that she had no

recollection of her activities on the night of the crime

The court acknowledged that not all of the nine-year delay

was attributable to the government, but nonetheless remarked

that “ail of it contributed to the fading of memories” (App.

A, infra, 10a n.2).

and that, her memory has resembled a lightbulb

not screwed tight, blinking on and off” (id. at 13a),

it concluded that the possibility, indeed the probabil-

ity, that unreasonable delay was the cause [of Stoeck-

ley’s memory gap] cannot be excluded” (id. at 13a-

14a). The court then noted that the amount of trial

prejudice necessary to demonstrate a speedy trial vio-

lation depends on the other Barker v. Wingo factors.

Balancing all of those factors, the court of appeals

concluded that respondent’s Sixth Amendment rights

had been violated (id. at 16a-17a).

Judge Bryan dissented. First, he disputed the

court’s view that the lapse of time between the com-

mission of the crime and the indictment was inexcus-

able. In light of the complexity of the case, Judge

Bryan found that the deferral of the submission of

the case to the grand jury was “well advised” (App.

A, infra, 21a). Both the government’s interest in

the investigation and considerations of fairness to the

respondent dictated that a grand jury not be con-

vened until the government had gleaned all available

evidence (id. at 21a-22a). Judge Bryan also rejected

the court’s conclusion regarding prejudice at trial,

finding that respondent’s ability to defend himself

was in no way prejudiced by the delay (id. at 23a-

27a).

Focusing specifically on witness Stoeckley’s inability to

recall her activities on the night of the murders, Judge Bryan

observed that she “ad testified that her memory gap resulted

from her consumption of large quantities of drugs that night,

and that the statements concerning the murders that she

had made during the intervening years were “vague, frag-

mented and contradictory” (id. at 26a). Thus, the record

in no way indicated that the passage of time had weakened

Stoeckley’s recollection of the events of February 17, 1970;

rather, her own testimony indicated “a pre-existing gap in

her ability to recount those events” (id. at 26a-27a & n.5).

4. The Fourth Circuit denied the government’s

petition for rehearing en banc by a 5-5 vote. Chief

Judge Haynsworth dissented with a brief statement

and Judges Russell, Widener, Hall and Phillips filed

a fuller dissenting opinion (App. C, infra, 29a-47a).

In that opinion, the dissenting judges focused on

what they deemed the panel’s error in including as

relevant to the Sixth Amendment inquiry the period

between the dismissal of military charges against re-

spondent in October 1970 and his indictment in

January 1975. During this period, the dissent ex-

plained, respondent was not under arrest, indictment

or any other form of legal accusation and thus there

was no hearing or other proceeding pending that he

could demand be held speedily; in short, “there was

nothing to which a claim for a speedy trial could at-

tach” (id. at 33a). Citing decisions of other courts

of appeals on this point, the dissent concluded that a

Sixth Amendment speedy trial claim cannot be pred-

icated upon delay that occurs when a defendant is not

subject to any restraint or legal accusation. Rather,

if a defendant is prejudiced by such a delay, his claim

is one of violation of due process under the Fifth

Amendment (id. at 38a-39a).

The dissenters went on to address the Sixth

Amendment question on the assumption, arguendo,

that the panel had correctly identified the relevant

period of delay. First, they concluded that, in light

of the complexity of the case and the need to proceed

with great care so as not to absolve a guilty party

or unfairly charge an innocent party, the government

was not guilty of excessive delay in beginning the

prosecution (App. C, infra, 4la-44a). Second, with

respect to the prejudice resulting from the delay, the

dissenters explained that respondent had not suffered

oppressive pretrial incarceration nor any anxiety dif-

ferent from that suffered by any person under crimi-

nal investigation nor, as explained in Judge Bryan’s

dissent, any prejudice to his defense as a result of

the pre-indictment delay (id. at 45a-46a).

Chief Judge Haynsworth expressed his “tentative

agreement” with the government’s contention that

the period between the dismissal of the military

charges against respondent and the return of the in-

dictment is irrelevan. for Sixth Amendment purposes

(App. C, infra, 29a-30a). Judge Murnaghan, author

of the panel opinion, filed a statement (id. at 48a-49a)

clarifying tha the panel considered in its Sixth

Amendment analysis only the delay prior to the Jan-

uary 1975 indictment; it was conceded by respondent

that the delay between the indictment and trial was

not the responsibility of the government. See App. A,

infra, 19a n.2; 531 F.2d at 202.

REASONS FOR GRANTING THE PETITION

1. This case presents an important and recurring

question concerning the scope of the Sixth Amend-

ment guarantee of a speedy trial. The court of appeals’

inclusion in its speedy trial calculations of the period

from October 1970 to January 1975, during which

time respondent was not under arrest, indictment, or

any other legal restraint, seriously misconstrues this

Court’s decisions in United States v. Marion, 404 U.S.

307 (1971), and Dillingham v. United States, 423

U.S. 64 (1975), and conflicts with decisions of sev-

eral other courts of appeals. Moreover, the court of

appeals’ decision, if allowed to stand, will have a

substantial detrimental impact upon the effective ad-

ministration of the criminal laws by inhibiting pros-

ecutors from exploring all avenues of inquiry, both

favorable and unfavorable to a suspect, before pro-

ceeding with criminal charges.

a. In United States v. Marion, supra, and Dilling-

ham v. United States, supra, this Court held that the

right to a speedy trial guaranteed by the Sixth

Amendment is activated only by a formal accusation

of a crime, either by indictment, information, or ar-

rest. As was explained in Marion (404 U.S. at 320;

emphasis supplied) :

Arrest is a public act that may seriously in-

terfere with the defendant’s liberty, whether he

is free on bail or not, and that may disrupt his

employment, drain his financial resources, cur-

tail his associations, subject him to public oblo-

quy, and create anxiety in him, his family and

his friends. * * * So viewed, it is readily under-

standable that it is either a formal indictment

or information or else the actual restraints im-

posed by arrest and holding to answer a criminal

charge that engage the particular protections of

the speedy trial provision of the Sixth Amend-

ment.

See also 404 U.S. at 321 & n.13; United States v.

Lovasco, 431 U.S. 783, 788-789 (1977). It necessarily

follows from this rationale that the right to a speedy

trial is not implicated during the period after charges

against an accused have been dismissed and he has

been released from custody. At that point, he no

longer stands under public accusation or suffers inter-

’ ference with his liberties. And there can be no Sixth

Amendment obligation speedily to try a person when

there are no charges pending against him that can be

brought to trial.“

Thus, in Dillingham v. United States, supra, the Court

ruled that the protections of the Speedy Trial Clause were

implicated during a period when charges were pending

The decision of the court of appeals abandons these

settled principles in applying the Sixth Amendment to

the period after the dismissal of the military charges

against respondent in October 1970, even though he

was honorably discharged from the military and was

free from any restraints on his liberty during this

period. The only justification given in any of the

opinions of the court of appeals for the inclusion of

this period is the fact that respondent remained un-

der suspicion for the crime and therefore suffered

anxiety that he might be prosecuted and the continu-

ing expense of retaining counsel. See 531 F.2d at

204; see also App. C, infra, 49a (statement of Mur-

naghan, J., on petition for rehearing). These same

considerations, however, are equally present where a

person who has not been arrested or indicted knows

that he is the subject of a serious criminal investiga-

tion. Nonetheless, the Court in Marion expressly de-

clined to extend the Sixth Amendment’s protection to

such a situation. 404 U.S. at 321. Treating the con-

sequences of investigation as equivalent to those of a

formal accusation obliterates the very distinction

drawn in Marion. See United States v. Elsbery, 602

against the defendant after his arrest, even though he had

not yet been indicted. The importance of the fact that the

defendant in Dillingham was at all times subject to outstand-

ing charges was highlighted in the government’s memoran-

dum in that case (No. 74-6738). Although we conceded that

the court of appeals there appeared to have misapplied

Marion in failing to consider the delay between arrest and

indictment (at 4-7), we noted in addition (at 7 n.5):

Of course, if the complaint had been dismissed and

petitioner had subsequently been indicted, the period

between those two events, during which no charges were

outstanding, would not be includable in the period of

delay for purposes of the speedy trial analysis.

F.2d 1054, 1059 (2d Cir.), cert. denied, 444 U.S. 994

(1979).

In rejecting the clear implication of Marion, the

court below reached a result that directly conflicts

with decisions of other courts of appeals. In United

States v. Martin, 543 F.2d 577 (6th Cir. 1976), cert.

denied, 429 U.S. 1050 (1977), the defendant was

charged with an offense in August 1972, but those

charges were dismissed in January 1973. He was

subsequently indicted in December 1974. In rejecting

the defendant’s claim that his Sixth Amendment right

to a speedy trial had been denied, the court stated

(543 F.2d at 579): “Because there was no indictment

which could have been tried in the period between

January 1973 and December 1974, we cannot say

that a speedy trial was delayed during that time.”

Similarly, in United States v. Bishton, 463 F.2d

887 (D.C. Cir. 1972), the defendant was reindicted on

federal charges after the initial charges against him

brought under District of Columbia law had been dis-

missed on jurisdictional grounds. In rejecting the

claim that the defendant’s right to a speedy trial had

been violated, the court declined to consider for

speedy trial purposes the period after the first prose-

cution had been terminated but before the second had

begun. Noting that “during this time appellant was

a free man against whom no prosecution was pend-

ing,” the court concluded that “[w]hen a citizen

stands neither arrested nor indicted for an offense, he

‘suffers no restraints on his liberty and is not the

subject of public accusation; his situation does not

compare with that of a defendant who has been ar-

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

[404 U.S.] at 321.” 463 F.2d at 891. And, in analo-

gous cases, the Second, Ninth and Tenth Circuits have

also expressed the view that the relevant speedy trial

period does not run uninterrupted from the time of

institution of charges, when the initial charges are

subsequently dismissed. United States v. Hillegas,

578 F.2d 453, 457-458 (2d Cir. 1978) ;* Arnold v. Me-

Carthy, 566 F.2d 1377, 1383 (9th Cir. 1978);°

United States v Stoker, 522 F.2d 576, 579-580 (10th

Cir. 1975).°

7 Hillegas technically involved the application of the dis-

trict court’s local prompt disposition rules rather than the

Sixth Amendment. The court of appeals explicitly noted,

however, that those rules “seek to implement the accused’s

constitutional right to a speedy trial,” and therefore that it

was “constrained by the admonition [in Marion] that ‘it is

either a formal indictment or else the actual restraints im-

posed by arrest and holding to answer a criminal charge that

engage the particular protections of the speedy trial provision

of the Sixth Amendment.“ 578 F.2d at 457. Thus, it is clear

that the court’s analysis with respect to the period between

dismissal of the complaint and reindictment is fully appli-

cable to cases such as this one and would necessitate a result

contrary to the one reached by the court below. See also

United States v. McClean, 528 F.2d 1250, 1258 (2d Cir. 1976) ;

United States v. Flores, 501 F.2d 1356, 1359-1360 (2d Cir.

1974).

The Ninth Circuit has since suggested that Arnold, which

involved the period between a mistrial and a later reindict-

ment, would not necessarily be controlling where the dismissal

of the original charges does not follow the declaration of a

mistrial. United States v. Henry, 615 F.2d 1223, 1233 n.13

(1980).

*The Fourth Circuit is not completely alone in its view

that a period when no charges are pending may be relevant

in computing the length of delay for speedy trial purposes.

At least where a second indictment charges the same offense,

the Fifth Circuit has stated that the period relevant to a

speedy trial calculation dates from the return of the first

indictment. United States v. Nixon, 634 F.2d 306, 309 (5th

Cir. 1981); United States v. Avalos, 541 F.2d 1100, 1108-

110¢ n.13 (5th Cir. 1976), cert. denied, 430 U.S. 970 (1977).

b. In addition to the conflict created among the

circuits, the decision below will have a substantial

adverse impact on the administration of the criminal

justice system. As this Court pointed out in United

States v. Lovasco, supra, 431 U.S. at 791-796, there

are sound reasons for not requiring a prosecutor to

file criminal charges as soon as probable cause

is established to his satisfaction, or, indeed, even when

he believes that he has assembled sufficient evidence

to prove guilt beyond a reasonable doubt. By the same

token, there are a variety of legitimate reasons for

dismissing charges after a person has been arrested.

The government may decide not to pursue the case

because subsequent and considered judgment deter-

mines that the evidence, although it establishes prob-

able cause, may not be sufficient to persuade a jury of

guilt beyond a reasonable doubt; or something may

occur that alters the basis for the original decision to

file charges, such as a witness becoming unavailable

or new evidence coming to light; or other, non-eviden-

tiary factors may indicate that a criminal proceeding

would not be in the public interest. Cf. United States

v. Lovasco, swpra, 431 U.S. at 793-794. Such dismis-

sals are beneficial to both the defendant and the gov-

ernment. A defendant is released from a pending

charge and its attendant anxiety, expense and in-

fringement of liberty. The government is given an

opportunity to continue its investigations and to re-

assess its decision not to prosecute if new evidence is

discovered.

Under the court of appeals’ decision that a defend-

ant’s speedy trial rights, once triggered by an arrest

But see United States v. Davis, 487 F.2d 112, 116 (5th Cir.

1973), cert. denied, 415 U.S. 981 (1974) (Barker v. Wingo

speedy trial analysis applied only to delay after the return

of the second indictment).

or formal charge, continue to run despite a dismissal

of the charges, such dismissals will be discouraged.

Prosecutors will be induced to bring cases to trial to

avoid the risk of dismissal on speedy trial grounds

even when it might otherwise be appropriate to dis-

miss the charges pending further investigation. The

consequence will be that, in some cases, persons will

be brought to trial who would never have been tried

at all if an investigation had been given time to run

its course. In other cases, guilty defendants will be

acquitted because of the government’s inability in the

short time after arrest to develop compelling proof

of guilt. Even if the prosecutor does elect to dismiss

the charges in order to develop additional evidence,

the investigation will have to be conducted in a hur-

ried atmosphere. Moreover, law enforcement officials

will be dissuaded from reopening cases in light of the

discovery of new evidence of guilt, even though pros-

ecution would not be barred by the statute of limita-

tions, because of a fear that a conviction would not

stand in the face of a speedy trial claim based upon

charges long ago dismissed.”

2. The conclusion that the Sixth Amendment is

not implicated by the delay between the dismissal of

the military charges and the return of the indictment

does not leave unfair prosecutorial delay beyond

judicial scrutiny. Rather, the correct analysis is

10 We note in this connection that there is no period of

limitations applicable to the grave offenses with which re-

spondent was charged. 18 U.S.C. 3281. See United States v.

Provenzano, 423 F. Supp. 662, 664-666 (S.D.N.Y. 1976), aff’d,

556 F.2d 562 (2d Cir. 1977) (where statute provides for

death penalty, 18 U.S.C. 3281 applies even though death

penalty cannot constitutionally be imposed) (dictum). Never-

theless, the indictment here was returned within five years

from the date of the slayings.

under the Due Process Clause of the Fifth Amend-

ment. As this Court has explained, a lengthy delay

prior to accusation violates the Fifth Amendment if

it both causes actual prejudice to the defense and is

the product of fundamentally unfair government con-

duct—for example, if the delay is an intentional de-

vice to gain a tactical advantage over the accused. See

United States v. Lovasco, supra, 431 U.S. at 788-796

& n.17; United States v. Marion, supra, 404 U.S. at

324; see also, e. g., United States v. Elsbery, supra, 602

F.2d at 1059. Thus, a subsidiary question is presented

here whether respondent’s constitutional rights were

violated by the pre-indictment delay—either under the

Fifth Amendment or, if contrary to our contention

the period during which no charges were pending is

counted for speedy trial purposes, under the Sixth

Amendment.“

Although the court below did not explicitly con-

sider the applicability of the Fifth Amendment (App.

A, infra, 2a), we think it clear from the record and

from the opinions below that respondent’s due process

rights were not violated by the delay; indeed, we sub-

mit that, even assuming arguendo that the court of

appeals was correct in including the total pre-indict-

ment delay in the Sixth Amendment analysis, the de-

lay here does not constitute a speedy trial violation

under the standards set out in Barker v. Wingo, 407

There can be little doubt that, unless this period is

counted against the government, there is no Sixth Amend-

ment violation here. The period between the preferral of the

military charges and their dismissal is too short to trigger the

Sixth Amendment analysis. The delay between indictment

and trial, as respondent has always conceded (see 531 F.2d

at 202), was not the fault of the government but rather was

caused by respondent’s pretrial appeals.

U.S. 514 (1972)." First, as both dissents below

pointed out (App. A, infra, 21a-22a; App. C, infra,

41a-44a), the government was pursuing its investiga-

tion during this period and, in light of the complexity

of the case and the desire not to charge an innocent

party, its delay in seeking an indictment was justi-

fied. Second, as the dissenters and the district court

found (App. A, infra, 23a-27a; App. C, infra, 45a-

46a; App. D, infra 55a), respondent has not demon-

strated any significant possibility that his defense at

trial was prejudiced by the delay. No potential de-

fense witness became unavailable to testify at trial as

a result of the delay.“ Moreover, the evidence on

12 As Judge Craven’s dissent in the Fourth Circuit's first

opinion (581 F.2d at 209-214) points out, the threshold de-

termination that respondent’s speedy trial right attached

when he was charged by the military and restricted to quar-

ters in May 1970 is not free from doubt. Assuming that the

Sixth Amendment speedy trial guarantee applies to military

court-martial proceedings (cf. Ex parte Quirin, 817 U.S. 1, 40

(1942) ), it is not clear that respondent was “arrested” with-

in the meaning of Marion and Dillingham. No probable cause

determination was necessary in order to prefer charges

against him. See 531 F. ad at 211-212; Article 30 of the UCMJ,

10 U.S.C. 830. Moreover, the restriction on respondent's

liberty was not equivalent to pretrial restraint in the civiliar.

context. Although he was restricted to his room in a bachelor

officer’s quarters and relieved of his duties as a medical

officer, he was not taken into custody and was allowed con-

siderable freedom of movement. See 531 F.2d at 218 & n.16.

We are not, however, seeking review of this narrow issue,

and we assume for the purpose of this petition that the pro-

tections of the Sixth Amendment were triggered when re-

spondent was charged in May 1970.

18 The assertion of the court below that the delay probably

caused defense witness Stoeckley’s failure to testify that she

was present at the murders does not withstand analysis.

Nothing in the record supports the remarkable suggestion

which respondent was convicted consisted “solely of

highly technical circumstantial evidence” (App. A,

infra, 16a). The reliability of such evidence does not

diminish over time, nor does the ability of defense ex-

perts to challenge its significance.

It follows, a fortiori, that the pre-indictment delay

here did not violate due process. Even giving the

court of appeals’ opinion the reading most favorable

to respondent, it is manifest that no Fifth Amend-

ment violation can be established under the standard

of United States v. Lovasco, supra. The court of ap-

peals pointed only to possibilities of prejudice to the

defense at trial; it implicitly concéded that no actual

prejudice had been shown (see App. A, infra, 11a,

16a). With respect to the reasons for the delay, it

has never been suggested that the government de-

liberately delayed seeking an indictment in order to

gain a tactical advantage over the defense (see 531

F.2d at 205-206). Even assuming that part of the

delay was attributable to “negligence” (531 F.2d at

207) or “bureaucratic indifference” (App. A, infra,

7a), the government's action manifestly did not vio-

late “those ‘fundamental conceptions of justice which

lie at the base of our civil and political institutions,’

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

play and decency.’” United States v. Lovasco, 431

U.S. at 790. Accordingly, neither of the prerequisites

that the mere passage of time could erase the memory of so

significant an event as being present at these murders. On

the contrary, as Judge Bryan explained (App. A, infra, 26a-

27a), the record reveals that, less than a week after the crime,

Stoeckley was unable to remember where she had been on

the night of the murders; her testimony at trial was the

result of a pre-existing gap in her memory that had —

to do with the delay.

to a finding of a due process violation by reason of

pre-indictment delay—actual prejudice or unfair de-

lay—is present here.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WabE H. Mexx, JR.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

ALAN I, Horow!tTz

Assistant to the Solicitor General

JOHN F. DEPUE

BRIAN M. MURTAGH

Attorneys

MARCH 1981

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5253

UNITED STATES OF AMERICA, APPELLEE

v8.

JEFFREY R. MACDONALD, APPELLANT

Appeal from the United States District Court for the

Eastern District of North Carolina, at Raleigh

Franklin T. Dupree, Jr., Chief Judge

Argued: February 5, 1980 Decided: July 29, 1980

Before BRYAN, Senior Circuit Judge; MURNA-

GHAN and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

Jeffrey R. MacDonald appeals convictions for sec-

ond degree murder of his wife and one of his chil-

dren and first degree murder of his other child. He

has raised a number of issues as to the conduct of

the trial and the rulings at trial by the district judge.

He has also contended that his Sixth Amendment

guarantee of speedy trial had been violated, and that

there was delay so inexcusable and prejudicial as to

have denied him the due process mandated by the

Fifth Amendment.

Deciding as we do that MacDonald is correct on

his Sixth Amendment contention, we do not reach the

district judge’s conduct and rulings at trial or the

Fifth Amendment issue. With respect to the district

judge’s conduct and rulings at trial, it suffices to

note that the case was a sensational, drawn-out one,

both hotly contested and bristling with difficult is-

sues. The district judge’s handling of the heavy

demands placed on him was admirable.

MacDonald’s due process contention would require

a demonstration that the delay was inexcusable and

that actual prejudice occurred. United States v. Lo-

vasco, 431 U.S. 783 (1977). The requisite proof to

make out a Sixth Amendment violation is no greater,

and, if anything, on the facts of this case would be

less, than that required to establish a Fifth Amend-

ment violation. Under either amendment, unreason-

able delay, covering essentially the same time frame

must be shown. The presence of the probability of

prejudice completes the necessary proof under the

Sixth Amendment; the actuality of serious prejudice

must be made out to validate a claim of denial of due

process. Consequently, as the burden on MacDonald

to show an abuse of constitutional proportions under

the Sixth Amendment could not be greater than his

burden under the Fifth Amendment, there is no oc-

casion to address the due process argument.

The Supreme Court in recent years has provided

specific criteria for the balancing tests necessary to

determine a Sixth Amendment speedy trial issue. In

Barker v. Wingo, 407 U.S. 514 (1972), the Court

said:

We can do little more than identify some of the

factors which courts should assess in determin-

ing whether a particular defendant has been de-

prived of his right. Though some might express

them in different ways, we identify four such

factors: Length of delay, the reason for the de-

lay, the defendant’s assertion of his right, and

prejudice to the defendant.

Id. at 530.

In the same opinion, the Court identified three of

the interests against which prejudice is measured:

This Court has identified three such interests:

(i) to prevent oppressive pretrial incarceration;

(ii) to minimize anxiety and concern of the

accused; and (iii) to limit the possibility that

the defense will be impaired. Of these, the most

serious is the last, because the inability of a

defendant adequately to prepare his case skews

the fairness of the entire system.

Id. at 532.

On MacDonald’s Sixth Amendment claim, we do

not write on a clean slate. Prior to trial, MacDonald

took an interlocutory appeal, and succeeded on the

speedy trial issue, only to have the victory evaporate

when the Supreme Court determined that, procedur-

ally the matter was not ripe for review prior to trial.

United States v. MacDonald, 531 F.2d 196 (4th Cir.

1976) (opinion by Butzner, J., joined by Russell, J;

Craven, J., dissenting), reversed on prematurity

grounds, 435 U.S. 850 (1978), [hereafter MacDon-

ald, First].

Now, following trial and conviction, we are called

upon again to address the question answered in Mac-

Donald’s favor by this Court in 1976.

The United States advances the argument that all

of the criteria announced in Barker must be viewed

in a different light from that in which the criteria

were considered in this Court’s 1976, MacDonald,

First opinion. The reason, it contends, is that there

has been a jury trial in the interim and the facts

developed at trial bear on the issues created by the

four Barker factors. ,

The United States is only partially correct. The

questions necessarily posed by the first three Barker

factors were in the same posture both before and

after trial. It is only tie fourth factor, the question

of prejudice, that must be viewed differently.

Since the Court’s admirable resolution of these is-

sues has not been affected by the facts developed at

the intervening trial, we adopt the reasoning of Mac-

Donald, First on the issues concerning the effect of

the length of delay; the government’s reason for the

delay; and MacDonald’s assertion of his right.

Length of Delay

The offending delay imposed by the government

was not. the time between the indictment and trial,

but the lapse of time between the military arrest and

trial. The military arrest was equivalent to civilian

arrest and MacDonald was “subjected to ‘actual re-

straints imposed by arrest and holding to answer a

criminal charge.’” 531 F.2d at 204. It is inconse-

quential that the delay was the result of the accumu-

lative action by a military and a civilian arm of

government. “The sixth amendment, we hold, secures

an accused’s rights to a speedy trial against oppres-

sive conduct by the government in its single sover-

eign capacity, regardless of the number and charac-

ter of the executive departments that participate in

the prosecution.” Jd.

The government argues that MacDonald, First was

incorrect in stating that a 13-volume report of the

Army’s Criminal Investigation Detachment for-

warded by the CID to the Justice Department in

June, 1972, was accompanied by a recommendation

of prosecution. However, the United States Attorney

for the Eastern District of North Carolina made the

recommendation that the matter be submitted to a

grand jury within six months of June, 1972, yet

nothing occurred until presentation to a grand jury

began in August, 1974. In the interval the CID filed

two supplemental reports analyzing the significance

of physical evidence recovered at the scene of the

crime on or shortly after February 17, 1970, the date

of the tragic occurrence. The CID had balked at a

request by the Justice Department for an additional

investigation, suggesting instead the convening of a

grand jury.

Viewing the situation as a whole, the unwarranted

bureaucratic delay which MacDonald, First found

had taken place is fully established regardless of the

fact that suggestion of grand jury presentation came

from the CID, not in June 1972, but at some later

time. The Justice Department was in possession of

all the evidence from June 1972, and that is what is

determinative as to the excessiveness of delay, not

whether it had advice from some other government

agency to take the step which is committed to it by

law, and for which it is particularly equipped to

make the requisite decision.

The government also has argued that the reason-

ing of Judge Butzner’s opinion in MacDonald, First,

may not stand in light of the subsequent holding by

the Supreme Court in United States v. Lovasco, 431

U.S. 783 (1977). However, that case involved facts

different in a determinative way from those pre-

sented in the instant case. Lovasco’s involvement in

crime came to the government’s attention almost im-

mediately, just as in MacDonald’s case. Yet there are

two vital distinctions. First, a postal inspector’s re-

port was prepared linking Lovasco to the offenses one

month after they were committed. In MacDonald’s

case over two years elapsed before the CID completed

its report and forwarded it to the Justice Depart-

ment. Seventeen months after the postal inspector’s

report was prepared, Lovasco was indicted. Prior

to that time, there had been no arrest, no attendant

publicity prior to the indictment. Thus, there was a

second distinction of controlling importance between

Lovasco’s case and MacDonald’s. MacDonald had

been subjected to the interference with his life and

affairs of the Army’s arrest and investigation under

conditions of extremely intrusive publicity. Lovasco

was put to no similar interference prior to his indiet-

ment. As a consequence, the Supreme Court held in

Lovusco that there was presented no viable speedy

trial claim under the Sixth Amendment,’ and turned

its attention solely to the alternative assertion: that

due process guaranteed by the Fifth Amendment had

been denied. In MacDonald’s case there was the kind

1The Supreme Court stated: “In United States v. Marion,

404 U.S. 807 (1971), this Court considered the significance,

for constitutional purposes, of a lengthy preindictment delay.

We held that as far as the Speedy Trial Clause of the Sixth

Amendment is concerned, such delay is wholly irrelevant,

since our analysis of the language, history, and purposes of

the Clause persuaded us that only ‘a formal indictment or

information or else the actual restraints imposed by arrest

and holding to answer a criminal charge . . . engage the par-

ticular protections’ of that provision. Id. at 320.“ 431 U.S.

at 788-89.

of “arrest and holding to answer a criminal charge”

which brings the Sixth Amendment into play. 531

F. 2d at 202-04.

Thus, pre-indictment delay was deemed altogether

irrelevant under the Sixth Amendment in Lovasco,

whereas, being post-arrest in MacDonald’s case, as

well as pre-indictment, it is relevant. But, if the 17

month delay in Lovasco had been relevant, it was far

more excusable than the delay of over two years in

MacDonald’s case. The latter was the product of

sheer bureaucratic indifference and therefore weighs

heavily against the government. In Lovasco’s case

there were other persons, whose involvement was evi-

dent, and whose likely criminality was apparent. De-

lay to explore possibilities of bringing the others to

book contemporaneously with Lovasco was excusable.

The investigation was properly describable as in-

complete, and the Supreme Court accepted that the

need for more investigation and the actual conduct

of more investigation were established. In MacDon-

ald’s case, on the contrary, no further investigation

was undertaken. Internally, the government con-

ducted tests on evidence already long since obtained

at the scene of the crimes, and lawyers in the Justice

Department vacillated over and — decision

on whether to seek indictment.

As did the MacDonald, First panel, we conclude,

therefore, that the delay in MacDonald’s case is suf-

ficiently long to justify “inquiry into the other fac-

tors that go into the balance of assessing MacDon-

ald’s claim that he has been denied a speedy trial.”

The Reason for the Delay

For eighteen months after the dismissal of the

charges by the Army, the CID, at the request of the

Justice Department, conducted another extensive in-

vestigation. The report was transmitted to the De-

partment of Justice in June, 1972, more than two

years before the commencement of grand jury pro-

ceedings. The primary reason for the two-year delay

was either a disagreement between two groups in the

Justice Department as to whether the case should be

prosecuted, or just simple government bureaucracy

(the contention of the involved Assistant U. S. At-

torney). This latter two years is the most offending

delay and certainly weighs heavily against the gov-

ernment in determining whether MacDonald’s right

to a speedy trial has been violated.

The Defendant’s Assertion of His Right

There is no question but that MacDonald vigor-

ously pursued his right to a speedy disposition of the

charges against him. He gave statements to the CID

while still in the military and testified under cross-

examination at the military hearing. He waived im-

munity and testified before the grand jury when it

was finally convened, and consistently, after his dis-

charge, contacted the Justice Department in an at-

tempt to expedite the resolution of his case. This is

entitled to strong evidentiary weight in determining

whether he has been deprived of his right to a speedy

trial. Barker, supra, 407 U.S. at 532.

Prejudice—The Fourth Barker Factor

The question of prejudice is, of course, viewed

from a crucially different perspective after the trial

of the case than was available prior to trial. Com-

pleted evidence presents a detailed picture from

which the possibilities of prejudice can be gauged. “As

is reflected in the decisions of this Court, most speedy

trial claims, therefore, are best considered only after

the relevant facts have been developed at trial ....

Before trial, of course, an estimate of the degree to

which delay has impaired an adequate defense tends

to be speculative... .” I. S. v. MacDonald, 435 U.S.

850, 858 (1978).

It is a rare case, however, where testimony will

simplistically demonstrate that the defense has been

hampered by the passage of time. The MacDonald

prosecution and defense is no exception. The evidence

at trial, if anything, confused rather than clarified

the question of actual prejudice at trial. As a review-

ing court, our task has been to carefully sift the rec-

ord and balance the evidenced effects of delay with

the other “speedy trial” rules of Barker and its

progeny.

It has been urged that MacDonald, First miscon-

ceived the significance of certain physical evidence

obtained at the murder scene: a flower pot, Mac-

Donald’s pajama top and a coffee table. It is further

insisted that, judging by what actually occurred at

trial, and not by what was anticipated would occur

at trial, those items were not utilized by the govern-

ment in a manner unfairly prejudicial to MacDonald

when the case was presented to the jury. However,

those particular items were alluded to as “but exam-

ples of the many questions about physical evidence

that the government’s case turns on.” 531 F.2d at

208. The particular differences between pre-trial ex-

pectations and the actualities of trial are insignifi-

cant in the total picture.

The government has contended that pre-trial con-

cerns about the prejudice to MacDonald from the

fading memories of witnesses and the necessity for

them to rely on statements made half a decade pre-

10a

viously have proved groundless in the actual event.

The prosecutor, the contention runs, did not need to

refresh recollections at trial by resort to the earlier-

obtained witness statements. However, that is no

adequate response. The risk to MacDonald was

simply too great that, in preparations prior to the

testifying of each witness, the prosecutors helped fill

lacunae of recollection, and assured consistency of

support for their theory of the case by reminding

each witness of what he had said at the outset. The

intervening period of over nine years rendered it vir-

tually impossible for MacDonald to prove the recollec-

tions of each witness to see if they were fuller than

or different from what he had stated when his state-

ment was taken.* Such refurbishing and improve-

ment of recollections are, it is true, possible even

after the lapse of over nine years from the commis-

sion of the crimes to the trial of MacDonald. Some

government witnesses did change their original stor-

ies.“ Vet, in general, the likelihood is greatly dimin-

2 Not all of the nine year delay was attributable to the

government, but all of it contributed to the fading of memo-

ries. Excluding the period until June 1972 when the CID

investigation report reached the Justice Department, and the

time following the January 1975 indictment, which MacDon-

ald acknowledges did not constitute inexcusable delay (see

531 F.2d at 202), there were still more than two years in

which essentially all that the government did was debate, in

a desultory way, whether to press for prosecution or to drop

the case. That delay was unreasonable and inexcusable. It

contributed to the dissipation of recollections. That consider-

ation suffices to engage the speedy trial protection of the

Sixth Amendment.

MacDonald has contended that those changes to his detri-

ment were also prejudicial occurrences attributable to the

undue passage of time resulting from the government’s delay.

We need not explore the substantiality of that contention.

lla

ished. The substantial possibility of prejudice is

what controls; it is not incumbent on the defendant

to prove that prejudice inescapably took place. Cf.

Moore v. Arizona, 414 U.S. 25 (1973) (per curiam).*

In this regard, the loss of the testimony of Helena

Stoeckley has been cited by MacDonald as the great-

est prejudice to him occasioned by the undue passage

of time. In a bizarre way, she had made remarks to

others on several occasions in 1970, 1971 and 1979,

which, while far from precise or complete, indicated

that she was one of a group of intruders whose sup-

posed entry into the MacDonald home and killing of

his wife and children constituted the essential de-

fense offered by MacDonald.

We do not agree that this was the greatest preju-

dice to the defense. Nevertheless, Stoeckley’s state-

ment on the stand at trial that she had no recollec-

tion of her whereabouts or activities during the criti-

cal period of midnight to 4:30 A. M. on the night of

the crimes (although she remembered in detail events

immediately prior and immediately subsequent to

that crucial interval) had a great potential for prej-

udice to MacDonald, given the substantial possibility

that she would have testified to being present in the

MacDonald home during the dreadful massacre. The

likelihood that Stoeckley would testify that she could

not remember was inevitably increased by the pas-

sage of the period of inexcusable delay. The cons-

quences of having put on a witness who was to have

verified MacDonald’s own version of a Manson-like

intrusion, only to have her fail to do so, may well

In Barker v. Wingo, 407 U.S. 514, 532 (1972), Justice

Powell identified as an interest of the defendant bearing on

the existence of prejudice: “the possibility that the defense

will be impaired.”

12a

have been disastrous to the defense. The potential

for the drawing of adverse inferences by the jury is

palpable. Yet the difficulty may not be dismissed as

one of the inescapable risks associated with any tac-

tical decision taken at trial. If Stoeckley could have

remembered and testified to the critical 414 hours,

her remarks to others created a substantial enough

basis that one cannot fault the decision to put her on

the stand. MacDonald was entitled to that tactical

course without its efficacy’s having been vitiated by

inexcusable action of the government. Had Stoeckley

testified as it was reasonable to expect she might

have testified, the injury to the government’s case

would have been incalculably great. The possible rea-

sons why Stoeckley did not so testify are several.“

But the reason she asserted under oath was failure

of memory. The government’s inexcusable delay of

over two years’ duration cannot be eliminated as a

potential—indeed a probable—cause of that memory

lapse.

The consideration that Stoeckley had theretofore

demonstrated a great unreliability would not render

omission of such testimony harmless error, for it

would have only created an issue of credibility for

the jury on the central question of fact which it was

called upon to resolve.“ The present case did not

5 A likely one is that she was not on the scene of the crimes

at all. However, that possibility did not erase the potential

prejudice to MacDonald, for it was only a possibility. It was

also quite possible that she was present, and could have given

evidence supportive of MacDonald’s thesis that intruders

killed his wife and daughters.

* Efforts of MacDonald to supply the deficiency of Stoeck-

ley’s memory by introducing hearsay testimony from those

she had told stories which placed her on the scene on the

13a

present the situation of a witness who would of ne-

cessity have to have committed perjury, if allowed to

testify, as would be the case with someone shown to

have been in prison at the very time the events oc-

curred about which he was to testify. Exclusion of

testimony from such a source obviously would be

proper. However, the possibility that Stoeckley was

physically present at the scene was not ruled out.

Questions as to reliability of her testimony went only

to the weight—a matter for the jury—not to the

imposibility of her having experienced what she was

proferred to testify about—a matter for the court.

Nor does it suffice for the government to point out

that the denial of Stoeckley’s testimony to MacDonald

may not have been attributable to the government’s

delay. The governmnt makes reference to testimony

from one of those to whom Stoeckley told a story

seeming to implicate her that, within a week of the

crimes, she was stating that her memory was essen-

tially blank as to the crucial hours. Her memory

has resembled a lightbulb not screwed tight, blinking

on and off. Still, however much other possible ex-

planations for her memory loss can be asserted, the

unavoidable principle remains that passage of time

generally tends to erase memory. While other factors

may have contributed, the possibility, indeed the

night of the crimes were thwarted by government objections

sustained by the district judge on the basis of Fed. Rules of

Evid. 408, 804(b) (8). We have no occasion to question the

correctness of the judge’s evidentiary rulings. With hind-

sight, however, the government prosecutors may rue having

prevented curative action for one potentially devastating

prejudicial consequence of the government’s unwarranted

delay and concomitant failure to move ahead in a fashion to

insure to MacDonald a speedy trial.

14a

probability, that unreasonable delay was the cause

cannot be excluded.

Although, in this important aspect, prejudice, the

fourth Barker factor, we approach MacDonald’s Sixth

Amendment allegation from a different background

than that available to this Court in MacDonald, Firsi,

supra, we are still of the opinion that viewed in the

light of all the evidence developed at trial, there was

substantial possibility that MacDonald’s defense was

prejudiced by the delay.

As stated, we need not base our conclusion of preju-

dice solely or principally on the failure of Stoeckley.

A pertinent comment of Justice Powell in the Barker

opinion is relevant to the testimony of each witness

whose testimony was based on his investigation of the

case more than five years before the trial: “Loss of

memory, however, is not always reflected in the record

because what has been forgotten can rarely be

shown.” 407 U.S. at 532. MacDonald, First rested

substantially on this general principle—of almost cer-

tain memory erosion in the cases of all witnesses

where the case has the characteristics of this one.

Facts adduced at trial did little to dispel this

judgment.

The possibility of prejudice to the defense at trial,

although important, is only one element of the preju-

dice that may be shown to sustain a Sixth Amend-

ment attack. As Justice White stated in his con-

curring opinion in Barker:

Only if such special considerations [those con-

siderations presenting a pressing public need]

are in the case and if they outweigh the inevit-

able personal prejudice resulting from delay

would it be necessary to consider whether there

has been or would be prejudice to the defense at

15a

trial. “[T]he major evils protected against by

the speedy trial guarantee exist quite apart from

actual or possible prejudice to an accused’s de-

fense.” United States v. Marion, supre, at 320.

Barker, supra, 407 U.S. at 537-38. It is significant

that the full Court later quoted with approval Jus-

tice White’s language preceding the above quotation:

Moreover, prejudice to a defendant caused by

delay in bringing him to trial is not confined to

the possible prejudice to his defense in those

proceedings. Inordinate delay,

“wholly aside from possible prejudice to a

defense on the merits may ‘seriously inter-

fere with the defendant’s liberty, whether

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

rupt his employment, drain his financial re-

sources, curtail his associations, subject him

to public obloquy, and create anxiety in him,

his family and his friends.’ United States

v. Marion, 404 U.S. 307, 320 (1971). These

factors are more serious for some than for

others, but they are inevitably present in

every case to some extent, for every defend-

ant will either be incarcerated pending trial

or on bail subject to substantial restrictions

on his liberty.” Barker v. Wingo, supra, at

537 (White, J., concurring. )

Moore v. Arizona, 414 U.S. 25 (1973) (per curiam).

See also Strunk, aka Wagner v. United States, 412

U.S. 434, 439 (1973) (“The speedy trial guarantee

recognizes that a prolonged delay may subject the

accused to an emotional stress that can be presumed

to result in the ordinary person from uncertainties

in the prospect of facing public trial.. .).

16a

It is also important to remember Justice Powell's

admonition that the four Barker factors have “no

talismanic qualities; courts must still engage in dif-

ficult and sensitive balancing process.” Barker, supra,

407 U.S. at 533.

The sensitive process of balancing is a task highly

individualized by the circumstances of each prosecu-

tion. The amount of demonstrable trial prejudice

which would be violative of MacDonald’s right to a

speedy trial is affected by his persevering five-year in-

sistence that his case be resolved and by his open

and aggressive participation in the investigatory

process. Weighing heavily in the equation is the

government’s calloused and lackadaisical attitude

which was solely responsible for at least the last two

years of delay. To require a showing approximating

actual prejudice would have the adverse effect of en-

couraging such irresponsible administration of crimi-

nal justice. Also included in this equation is the

personal prejudice to the accused. Not only was he

under a cloud of suspicion for five years prior to the

trial, but the personal pressure and anxiety of a

threatened prosecution for murder is demonstrated

by the expense and concern he expended in attempt-

ing to have the charges resolved.

The prosecution consisted solely of highly technical

circumstantial evidence. The government had the

great advantage of unlimited financial and personal

resources, access to laboratory and other technical

devices, presenting evidence by skilled technical wit-

nesses upon whom the jury must principally rely.’

In one sense such technical circumstantial evidence is

easier to preserve during a delay, but in another sense, after

five years it is easier to orchestrate an array of technical

evidence. The technical witnesses frequently are relying on

17a

The required judicial balancing process necessary

to determine a violation of the Sixth Amendment,

speedy trial requirements has been particularly dif-

ficult. It is made more difficult by the terrible crime

and by the fact that a jury has found MacDonald

guilty after a protracted trial. The vital balancing,

however, tips the scales decisively in favor of finding

a violation by the government of MacDonald’s Sixth

Amendment rights. We cannot and do not assess

the correctness of the jury’s verdict, and regardless

of that we certainly cannot let such considerations

condone or establish a prosecutorial method of ob-

taining convictions in violation of the fundamental

constitutional right of future generations.

Under the Sixth Amendment, a showing of un-

reasonable delay, plus substantial proof of prejudice,

mandates a holding that the constitutionally guaran-

teed speedy trial has been denied. Barker v. Wingo,

407 U.S. 514 (1972). For Fifth Amendment pur-

poses there must be a determination that the preju-

dice was so extreme as to amount to violation of

“those ‘fundamental conceptions of justice which lie

at the base of our civil and political institutions,’

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

play and decency,’” United States v. Lovasco, 431

U.S. at 790. Under the Fifth Amendment, proof of

prejudice is generally a necessary, but it may not be

a sufficient element of a due process claim. The test,

scientific speculation and trial and error. An example im-

portant to his case is the testimony concerning the way in

which a pajama top was folded over the deceased wife. The

testimony was deduced years after the crime by matching

numerous ice pick holes in the garment. This testimony was

calculated to demonstrate that this stabbing was arranged

after her death in order to simulate an intruder’s attack.

18a

as to prejudice, for Sixth Amendment purposes is

not so stringent. Barker v. Wingo, 407 U.S. 514, 532

(1972). The fact that the delay was undue and re-

sulted in prejudice suffices in MacDonald’s case,

whether or not the delay and consequent prejudice

were so egregious as to amount to deviation from

“fundamental conceptions of justice.” The extensive

discussion in Lovasco of how extreme was the preju-

dice suffered by the accused by reason of the delay,

therefore, has little pertinence to the Sixth Amend-

ment claim of MacDonald that he was not accorded

a speedy trial.

We, therefore, remand the case to the district court

with directions to set aside its judgment, vacate the

sentences, and dismiss the indietment.“

Reversed and Remanded.

ALBERT V. BRYAN, SR., dissenting:

Murder of his pregnant wife and his 6 and 3-

year old daughters, with a blunt instrument, a knife

and an ice pick, between midnight and dawn on Feb-

ruary 17, 1970, in their home at Fort Bragg, North

Carolina, was charged to Jeffrey MacDonald by a

Federal indictment. His guilt and sanity were es-

tablished to the satisfaction of the trial jury beyond

a reasonable doubt. Nevertheless, this court absolves

him forever of his hideous offense, shockingly laying

his release exclusively on the failure of the Govern-

ment to prosecute within a shorter time than it did.

The majority’s resolution is achieved through utiliza-

8 Strunk, aka Wagner v. United States, 412 U.S. 484, 440

(1973).

19a

tion of the Sixth Amendment’s exaction that “[i]n

all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial.. This im-

plementation of the constitutional clause was held

untenable by the District Judge, and I agree.

The opinion of the majority here alludes to Barker

v. Wingo, 407 U.S. 514 (1972), a decision that gives

guidance in the application of this clause. In Barker,

the Supreme Court charted a balancing test, iden-

tifying four factors the courts should consider in as-

certaining whether the right to a speedy trial has

been denied: the length of the delay; the reason for

the delay; the defendant’s assertion of the right; and

prejudice to the defendant resulting from the delay.

Id. at 530. The Court emphasized, however, that

a] balancing test necessarily compels courts to ap-

proach speedy trial cases on an ad hoc basis. [The

Court] can do little more than identify some of the

factors which courts should assess in determining

whether a particular defendant has been deprived of

his right.“ Id. Keeping in mind the Court’s repeated

admonition that none of the four points mentioned

is determinative but, rather, that “they are related

factors and must be considered together with such

other circumstances as may be relevant,” id. at 533,

the appellant’s speedy trial premise should be rejected.

With regard to the first factor, the length of the

delay, the appellant calls attention to the lapse of

five years between the date of the crime, February

17, 1970, and the return of the indictment, January

24, 1975. Baldly stated, the count of five years con-

1 Incidentally, Congress has declared that there shall be no

limitation of time on a prosecution for murder. 18 U.S.C.

§ 3281.

2 It is conceded that the Government is not responsible for

any significant delay occurring since then.

20a

jures up serious prosecutorial dawdling, but in the

light of the record this appearance vanishes.

Immediately upon word of the crimes, the Army’s

Criminal Investigation Division (CID) took the pri-

mary role in the investigation. Not until May 1,

1970, however, did the Army charge MacDonald with

the murders. On October 23, 1970, the commanding

general of MacDonald’s unit at Fort Bragg dismissed

the case after reviewing the investigating officer’s

report which concluded that the charges were “not

true.”

Nevertheless, upon the request of the Department

of Justice, the CID still pursued the inquiry in an

“extensive and wide ranging” discovery effort. In

June, 1972, it submitted to the Department a 13-

volume report; supplements thereto were transmitted

in November, 1972, and August, 1973, at the Depart-

ment’s request. These reports reflected the sweeping

breadth of the investigation, which embraced almost

700 interviews and numerous scientific tests. A num-

ber of Government attorneys having reviewed and

evaluated the reports, a grand jury was impanelled

in August, 1974—only one year after the filing of the

CID’s final investigative report—to consider the Mac-

Donald family murders.

While the grand jury was taking evidence, the

Federal Bureau of Investigation continued the probe.

Its exploration led to the exhumation of the bodies of

the three victims; the object was to obtain samples

of their hair, in order to compare them with strands

found on pieces of evidence in the MacDonald home.

Obviously, neither the grand jurors nor the Govern-

ment were idle between the calling of the jury in

August, 1974, and the return of the indictment in

January, 1975.

21a

The crucial period of delay attributable to the

Government, then, is, at most, the period of slightly

more than two years between the CID's submission

of its initial, major report in June, 1972, and the

convening of the grand jury in August, 1974. Even

assuming that the case could have been put before a

yrand jury at an earlier date, the fact that some

substantial delay occurred only touches off inquiry

into the other relevant factors and does not itself

establish a constitutional deviation. Barker v. Wingo,

407 U.S. at 530.

Passing to the second factor isolated in Barker—

the justification the Government offers for its delay—

contrary to the majority’s condemnation of the Gov-

ernment, to me the deferment of grand jury submis-

sion was well advised, both in public concern and in

fairness to MacDonald. Certainly, the Department of

Justice was wise to await a mature completion of

the CID’s inquisition, taking advantage of the com-

prehensiveness and expertness of its scrutiny and

evaluation of the evidence.

Fairness to MacDonald, too, dictated postponement

of the calling of a grand jury. Historically, the grand

jury has been, and presently still stands as, an in-

stitution interposing a bulwark for the protection

of the individual citizen as well as of the public.

Because an indictment is a solemn charge, whether

followed by a verdict of guilty or an acquittal, the

deliberations and returns of a grand jury should

never be regarded as mere formalities. Notwithstand-

ing that, after acquittal, the indictment is theoretic-

ally without force or effect, as a practical matter, it

brands the subject as a criminal suspect for the rest

of his life; it will be recalled whenever his name is

mentioned, especially when the offense charged is

22a

particularly grave or shocking. In addition to the

personal anxiety and humiliation anyone so accused

endures, the practical consequences of this stigma to

a banker, lawyer, physician, or any person holding

a position of responsibility may be devastating. It

follows as a matter of fairness that no one should

be exposed to this future shadow until the Govern-

ment has gleaned all available evidence.

Appellant contends, and the majority agrees, that

the justifications the Government offers for its delay

in seeking the indictment are wholly unacceptable.

Insofar as the Government may cite internal bu-

reaucracy as a source of postponement, some disap-

proval may be warranted. Nevertheless, the quantity

of evidence amassed, and the time required to assess

it, must be taken into account. The 1972 report, it

will be remembered, comprised not less than 13 vol-

umes; these had to be closely read and digested, not

given just a sketchy oversight. Finally, it should be

kept in mind throughout, any failure of the Govern-

ment’s explanation completely to justify the entire

period of delay is not decisive; it is merely a factor

to be considered in the balance.

As to the third consideration enumerated in Bar-

ker, it is indisputable that MacDonald attempted to

assert his right to a speedy trial. During the years

involved, he manifested an eagerness to have the

matter resolved and apparently did nothing to im-

pede the progress of the prosecution.

The fourth factor to which Barker directs atten-

tion is prejudice to the defendant. There and in

Moore v. Arizona, 414 U.S. 25 (1973) (per curiam),

the Court “expressly rejected the notion that an af-

firmative demonstration of prejudice was necessary

to prove a denial of the constitutional right to a

speedy trial.” Jd. at 26. The majority here relies

on that precept in averring that the delay in Mac-

Donald's indictment gave rise to “the substantial pos-

sibility of prejudice,” and in deeming that possibility

a sufficient basis for concluding that his right to a

speedy trial had been denied.

Admittedly, MacDonald need not affirmatively

prove actual prejudice as a single, essential prere-

quisite to his claim under the Sixth Amendment;

nonetheless, we must turn to the record and to the

surrounding circumstances to ascertain the extent, if

any, to which MacDonald’s defense was impaired di-

rectly as a consequence of the delay in prosecution.“

Although the focus is on the possibility of prejudice,

Prejudice is to be considered in the light of the purposes

of the speedy trial right: (i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the

accused; and (iii) to limit the possibility that the defense

will be impaired.” Barker v. Wingo, 407 U.S. at 532. The

first concern is not raised in this case because MacDonald

was subject to some form of restraint for only the brief

period between April and October, 1970, and that by the

Army. Moreover, acknowledging that prejudice, in the form

of personal adversity unrelated to the merits of the defense,

will be “inevitably present in every case to some extent,“ id.

at 537 (White, J., concurring), quoted in Moore v. Arizona,

414 U.S. at 27, it may be presumed that MacDonald suffered

anxiety and concern as a result of the delay in prosecution.

Nevertheless, the record reveals that he was able to proceed

with his life, reestablishing himself professionally and de-

veloping new friendships. Because the postponement of his

indictment does not appear to the District Judge or to me to

have impaired, directly or inordinately, MacDonald’s personal

life during the period at issue, this form of prejudice is not

a crucial factor in this case. Therefore, the analysis will

focus on the third concern, prejudice to MacDonald’s defense

on the merits.

we must not ignore what actually transpired.* In

this, I join the District Judge’s finding, in his post-

trial order refusing bail pending appeal, that “[t]he

fears. .. that the defendant’s ability to defend the

case adequately might be seriously prejudiced by the

pre-indictment delay have not been borne out in the

record developed at trial.” United States v. Mac-

Donald, No. 75-26-Cr-3 (E. D. N. C. Order of Sept.

14, 1979) (accent added).

Both in brief and in oral argument, appellant put

forward a number of instances in which, he comp-

lains, his defense suffered as a result of the delay in

his trial. A reading of the record reveals, however,

that MacDonald’s ability to defend himself was not

significantly impaired, either in the particular ways

he names or in any other manner apparent in the

record.

Among the impediments to his defense MacDon-

ald urges is deterioration of certain physical evi-

dence between the time of the murders and the trial

date. He calls attention to his pajama top, asserting

that characteristics of the multiple puncture holes

found in it—characteristics that might have enabled

* The opinion of the Supreme Court holding that this prose-

cution could not be dismissed on speedy trial grounds prior

to trial on the merits, United States v. MacDonald, 435 U.S.

850 (1978), rev’g 531 F.2d 196 (4th Cir. 1976), supports

this approach. The Court noted that “[t]he resolution of a

speedy trial claim necessitates a careful assessment of the

particular facts of the case” after those facts have been es-

tablished at trial. Jd. at 858. The Court added: “Before

trial, of course, an estimate of the degree to which delay has

impaired an adequate defense tends to be speculative.” Id.

One of the advantages of reviewing such a motion after a

decision on the merits has been rendered, therefore, is that,

for the most part, speculation can be avoided.

25a

him to contradict the prosecution’s damaging infer-

ences—had vanished with time. Advertence to the

record disclosures, however, that the loss of these

characteristics (the visible differences between “en-

try holes” and “exit holes”) took place rapidly and

may not be attributed specifically to the two-year

delay imputed to the Government; indeed, it is ad-

mitted that even in 1971 few of the holes in the

garment could be identified as entry or exit holes.

Another of MacDonald’s aggrievements centers on

the deterioration of a bloody footprint, which he was

no longer able to distinguish adequately at trial. He

had not contested the print as his, however, and he

fails to show the import of that line of inquiry. Other

contentions of changes in the physical evidence like-

wise do not demonstrate convincingly that the defend-

ant’s situation was significantly weakened by the de-

lay in indictment.

The next ground for MacDonald’s insistence as to

prejudice is the effect of the delay on the testimony

of witnesses. Foremost in this argument is the im-

pact of the postponement on the testimony of Helena

Stoekley. MacDonald contends that delay effectively

robbed him of the benefit of her testimony because, in

the intervening period, she had lost memory of her

activities, her whereabouts, and her companions on

the night of the murders, and of certain inculpatory

remarks she subsequently had made.

The majority agrees with appellant that Stoekley’s

statement at trial that she could not recall her activi-

ties in the critical hours “had a great potential for

prejudice to MacDonald, given the substantial possi-

bility that she would have testified to being present

in the MacDonald home during the dreadful massa-

cre.” Supra, at . Nothing in the record, how-

26a

ever, warrants the assumption that Stoekley would

have or could have given the testimony the majority

would ascribe to her had the Government secured its

indictment earlier.

Stoekley herself in her trial testimony explains

that her inability to recall the pre-dawn events of

February 17, 1970, resulted from her consumption,

earlier in the evening, of large quantities of drugs;

she in no way indicated that time had weakened her

recollection. The evidence given by a neighbor of

Stoekley’s at the Army hearings in 1970 narrates

that, within a week or two of the murders, Stoekley

told him that she could not remember where she had

been on the night of the crime. Similarly, the record

reveals that the statements concerning the murders,

which she reputedly made to various persons in the

months and years preceding MacDonald’s trial, are

vague, fragmented and contradictory; they do not

indicate simply a gradually fading memory, eroded

by time.“ Unmaintainable on the record is the major-

5 The District Judge noted, with regard to Stoekley’s testi-

mony at trial:

Stoekley was put on the stand by defense counsel and

questioned at considerable length about her knowledge

of the MacDonald murders. The substance of her testi-

mony was that she was not involved in the murders but

that because of her drug-crazed condition she had at least

come to wonder whether or not she was in fact involved,

and she admitted to owning . . clothing [similar to that

ascribed by MacDonald to one of the alleged intruders]

... and to the fact that she seemed to go into mourning

following the murders. The Court gained the unmistak-

able impression which it believes was shared by the jury

that this pathetic figure was suffering from drug-induced

27a

ity’s position that it was “reasonable to expect

[Stoekley] might have testified” that she witnessed

the murders and that “[t]he Government’s inexcus-

able delay of over two years’ duration cannot be elim-

inated as a potential—indeed a probable—cause of

[her] memory lapse.” Supra at ——. Instead, the

record fully upholds the Government’s contention

that any culpable delay on its part had no discernible

effect on Stoekley’s testimony. Furthermore, none of

the other instances of prejudice he lists tends to

prove that MacDonald’s ability to defend himself was

impaired significantly by the deferred indictment.

Finally, in this case, viewed in its entirety, the

absence of substantial prejudice and the reasonable

assessment of the other factors to which Barker

draws attention do not sustain the accusation that

the Government disregarded its constitutional duty

to bring MacDonald promptly to trial or trampled on

the aims of the Sixth Amendment.

Affirmance of the judgment now on appeal is

demanded by the record.

mental distortion and that she could be of no help to

either side in the case.

United States v. MacDonald, No. 75-26-Cr-3 (E.D.N.C. Order

of Sept. 14, 1979). Totally apart from the question of the

trustworthiness or untrustworthiness of Stoekley’s testimony,

her remarks on the stand do not reflect a diminishing recol-

lection of the events of nine years before, but rather a pre-

existing gap in her ability to recount those events. This gap

cannot reasonably be attributed to the prosecution’s failure

to secure an indictment earlier.

28a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5253

75-26-CR3

UNITED STATES OF AMERICA, APPELLEE

JEFFREY R. MACDONALD, APPELLANT

Appeal from the United States District Court

for the Eastern District of North Carolina.

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern Dis-

trict of North Carolina, and was argued by counsel.

On consideration whereof, It is now here ordered

and adjudged by this Court that the judgment of the

said District Court appealed from, in this cause, be,

and the same is hereby, reversed. The case is re-

manded to the U. S. District Court for the Eastern

District of North Carolina, at Raleigh, with direc-

tions to set aside its judgment, vacate the sentences,

and dismiss the indictment, consistent with the opin-

ion of this Court filed herewith.

Filed Jul. 29, 1980

/s/ William K. Slate, II

Clerk

A True Copy, Teste:

William K. Slate, II, Clerk

By Julian S. Coyne

29a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-5253

UNITED STATES OF AMERICA, APPELLEE

v8.

JEFFREY R. MACDONALD, APPELLANT

On Request for Rehearing En Banc

Submitted: August 18, 1980

Decided: December 18, 1980

PER CURIAM:

The petition for rehearing is denied, Judge Bryan

dissenting. A majority of the judges of the Court

who are in regular active service has not voted in

favor of rehearing en banc, and the request therefor

is accordingly denied.

Annexed hereto are:

(1) Dissenting statement of Chief Judge Hayns-

worth

(2) Dissent of Judge Russell, Judge Widener,

Judge Hall and Judge Phillips.

(3) Statement of Judge Murnaghan.

HAYNSWORTH, Chief Judge, dissenting:

Ordinarily, I think it inappropriate for judges to

write in support of losing votes for an en banc re-

hearing. The situation presented here, however, is

not ordinary, for the question which five of the ten

judges in regular active service sought to have the

80a

en bane court consider has never been addressed in

any of the panel opinions. In this very extraordinary

case, I think the parties and the public are entitled

to know the question which five of the judges sought

to have argued before, and determined by, the full

court.

Of course, preindictment delay may be relevant to

a Fifth Amendment claim of deprivation of due

process. That is true whether or not there had been

an earlier indictment or arrest which had been ter-

minated by dismissal or release. The relevance of

such an interval between two separate proceedings to

a Sixth Amendment claim of denial of a speedy trial,

however, has never been adjudicated by this court. I

would prefer not to express what may appear to be a

considered opinion of it without plenary considera-

tion of it by the full court, but denial of the rehear-

ing forecloses that possibility. My tentative agree-

ment with the position of the United States in its

petition for rehearing was sufficiently firm, however,

to prompt me to request a poll of the court on the

suggestion of rehearing en bane and to vote for it.

Under these circumstances, it seems to me appro-

priate for Judges Russell, Widener, Hall and Phillips

to give expression to their views and for me to file

this tentative addendum in agreement with them that

the interval between Dr. MacDonald’s release by the

Army and his later indictment is irrelevant to a

consideration of his Sixth Amendment claim.

JUDGES RUSSELL, WIDENER, HALL, and

PHILLIPS, dissenting.

We dissent from the denial of en banc rehearing in

this case. We do so primarily because the denial re-

sults in a complete failure by this Court to address

a point raised by the Government in its petition for

31a

rehearing, which we regard as completely dispositive

against any claim by the defendant under the Sixth

Amendment.“ The point raised is that, in assessing

the length of delay under a Sixth Amendment claim,

it is not appropriate to take into account periods be-

tween successive indictments during which a defend-

ant was under no accusation.

Barker v. Wingo, 407 U.S. 514, 530 (1972), de-

clares that the first question to be addressed in re-

solving every Sixth Amendment speedy trial claim,

which is the claim on which the panel opinion re-

verses, is the determination of the “length of delay”

in the prosecution. Unless such delay is sufficiently

lengthy to be assessed as “presumptively prejudi-

cial,” the claim of constitutional violation must fail

and it is unnecessary for the Court to consider any

of the other factors listed in Barker. Id. at 530. It is

thus clear that it is crucially important to identify

both the beginning and the ending date for comput-

ing “length of delay” in the prosecution, as that term

is used in Barker, and as further defined in United

States v. Dillingham, 423 U.S. 64 (1975). The first

opinion in this case“ fixed both critical dates. The

Court in that opinion found that the relevant period

for computing “length of delay” was the period of

“delay between the accusation and detention of Mac-

Donald [under the military proceedings and his in-

1 We do not address any claim for relief by the defendant

under the Fifth Amendment because the panel opinion very

clearly declares at the outset that it does not reach . . . the

... the Fifth Amendment issue.“ If an issue under the Fifth

Amendment is to be considered, it can only be done by grant-

ing the Government’s motion for rehearing.

2 Barker v. Wingo, 407 U.S. at 530.

® United States v. MacDonald, 531 F.2d 196 (4th Cir. 1976)

{hereinafter refered to as “MacDonald I].

82a

dictment in this proceeding, which] was more than

four and one-half years.“ 531 F.2d at 205. It fixed

the beginning date as May 1, 1970, when the Article

32 military proceedings were begun against MacDon-

ald. These proceedings the court considered to be

the equivalent of a civilian arrest.“ It identified the

termination of the critical period as the return of the

indictments. It did this because the defendant con-

ceded that there was no “substantial delay” after

indictment. Since the defendant was himself respon-

sible for any real delay after indictment, he could

not have avoided making such concession.’ The court

*The defendant MacDonald was charged in an affidavit,

filed under Article 30 of the Uniform Code of Military Jus-

tice, 10 U.S.C. § 830, with the murder of his wife and chil-

dren. On the basis of that charge, the defendant was “re-

stricted to quarters” and “relieved of duty” and an Article

32, 10 U.S.C. § 832, hearing was set to determine whether

probable cause existed for sending the matter up for a court

martial. At the conclusion of the Article 32 hearing, it was

recommended that the charges be dismissed and that recom-

mendation was accepted and adopted by the commanding

general, with the result that as of October 23, 1970, the mili-

tary charges against the defendant were dismissed. Subse-

quently, in December, 1970, the defendant requested and re-

ceived an honorable discharge from the Army. He then

established himself in California, where, between 1971 and

his indictment in 1975, he was actively engaged in the prac-

tice of medicine.

Hill v. Wainwright, 617 F.2d 375 (5th Cir. 1980) (“If

the postponement is occasioned by the actions of the accused

himself, the delay . . may be excused.” Id. at 378); Keeny

v. Swenson, 458 F.2d 680, 682 (8th Cir.), cert. denied, 409

U.S. 1027 (1972); United States v. Cook, 400 F.2d 877, 878

(4th Cir. 1968) (per curiam), cert. denied, 393 U.S. 1100

(1969) ; Morland v. United States, 193 F.2d 297, 298 (10th

Cir. 1952); Iva Ikuko Toguri D’Aquino v. United States,

192 F.2d 338 (9th Cir. 1951).

83a

in MacDonald I proceeded to find that this delay of

four and one-half years was sufficient to justify,

under the Barker “triggering” test, “inquiry into the

other factors that go into . . assessing MacDonald’s

claim that he has been denied a speedy trial.” Id. at

205. The present panel opinion adopts this conclusion

of MacDonald J.“

Our point of difference with the present panel

opinion, as well as with MacDonald I, is the inclusion

in the computation of “length of delay” the period

between the dismissal of MacDonald’s military ar-

rest in October, 1970 and January, 1975, when he

was indicted. This was a period during which he

was not under arrest, was not under indictment or

any other form of legal accusation, civil or military.

There was no charge pending against him, and thus

there was neither a trial nor even a hearing which

he could request or demand. In short, there was

nothing to which a claim for a speedy trial could

attach. From December, 1971 to January, 1975, he

There is some confusion in the panel opinion on this point.

Immediately after declaring that it adopts the conclusion and

reasoning of the Court in MacDonald I on “length of delay,”

which under MacDonald I was calculated from the date of the

military arrest to the date of the indictment, the present panel

opinion states in the very next sentence that the “length of

delay” in this case, under the Barker rule, was “the lapse

of time between the military arrest and trial.” By this state-

ment, it would double the time period found in MacDonald I

to be the proper computation of “length of delay” for pur-

poses of resolving the “triggering” factor under Barker.

In so doing, it overlooks entirely the reasons which prompted

Judge Butzner in MacDonald I to terminate the calculation

of delay with the return of the indictment, i.e., that the de-

fendant himself, by his various motions and appeals had been

the author of any substantial delay that followed the in-

dictment.

84a

was practicing his profession without hindrance of

any kind. If this period of time is eliminated from

the period of delay found by the panel and by Mac-

Donald I, the delay will be at most seven months, a

period entirely too short to “trigger” further inquiry

under Barker. See United States v. McGrath, 622

F.2d 36, 40-41 (2d Cir. 1980).

That this period beween 1970 and 1975 when the

defendant was free of any legal accusation of any

kind is not to be counted in computing “length of

time” is clearly established in the opinion of Judge

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

(6th Cir. 1976), cert. denied, 429 U.S. 1050 (1977);

in fact, it can be argued that the entire period of

time between the filing of the first indictment and

its dismissal was thought by the Court in that case

to be outside the period to be considered in evaluat-

ing delay in connection with the second indictment.

The opinion of Judge McCree in that case is directly

on point. In Martin, the defendant was charged un-

der an indictment returned in August, 1972. Those

charges were dismissed in January, 1973.“ A second

indictment was filed in December, 1974 and the de-

fendant was tried and convicted in December, 1975.

He contended both at trial and on appeal that the

delay from his first indictment to his trial in De-

There is a difference between this case and Martin. In

this case, the first proceeding never got to the indictment

stage. It was dismissed at the preliminary hearing stage, if

we analogize the military procedure to civilian criminal pro-

cedure. In the Martin case, the dismissal was after indict-

ment. But as a practical matter, the earlier proceedings in

both cases were effectively terminated by a dismissal, in the

one case of the military charges and in the other of the

indictment, and so the legal consequences of the two dis-

missals are the same.

35a

cember, 1975 violated his speedy trial rights under

the Sixth Amendment. In dismissing the contention

and in holding that the period between the dismissal

of the first indictment and the return of the second,

if not the entire period between the first and second

indictments, was to be disregarded in calculating

“length of delay” under Barker, Judge McCree said:

The Sixth Amendment right to a speedy trial

does not attach until the formal charge, the trial

of which is alleged to have been inordinately and

prejudicially delayed, is made. United States v.

Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d

468 (1971). Because there was no indictment

which could have been tried in the period be-

tween January 1973 and December 1974, we

cannot say that a speedy trial was delayed dur-

ing that time. The remaining time is not re-

motely comparable to the five year delay which

provoked the analysis in Barker v. Wingo, 407

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Even if we were to include the five months be-

tween the filing and dismissal of the earlier

charges in this case, the total period of delay

would still be less than the time between Bar-

ker’s first objection to delay and Barker’s trial.

Even that period was insufficient to show a vio-

lation of Barker's Sixth Amendment rights. Id.

at 579. (Emphasis added. )

Moreover, Congress, in enacting the Speedy Trial

Act of 1974, 18 U.S.C. § 3161, et seq., has in essence

given legislative imprimatur to the rule announced

by Judge McCree in Martin, at least its exclusion

of the period of time between the dismissal of an

earlier indictment and the return of a second indict-

ment. Thus, that Act provides that the period be-

36a

tween the dismissal of an earlier indictment and the

return of a second indictment for the same offense

“shall be excluded * * * in computing the time with-

in which the trial of any such offense must com-

mence“ under the Act. 18 U.S.C. §3161(h). And

this is true whether the Government or the defendant

has sought dismissal of the earlier indictment. The

only distinction which the Court makes between the

situation where the Government makes the motion

and where the defendant makes the motion, is that

the time between the return of the first indictment

and its dismissal is included in computing the delay

if the dismissal is at the instance of the Government

but not if the dismissal is on the motion of the de-

fendant. But, in both situations, we repeat, the period

between dismissal of the first indictment and the

return of the second is not counted. See United

States v. Dennis, 625 F.2d 782, 793 (8th Cir. 1980).*

8 See the Annotator’s Note in 18 U.S.C.S. § 3161, at p. 371:

Policy and Purpose of Speedy Trial Act of 1974, 18

U.S. C. S. § 3161 et seq., and of all speedy trial plans have

been to expedite processing of pending criminal proceed-

ings, not to supervise exercise by prosecutor of his inves-

tigative or prosecutorial discretion at time when no

criminal proceeding is pending before court; to invade

judicial branches in matters that fall primarily, if not

exclusively, within jurisdiction of executive branch; by

same token, neither Act nor Plans were intended to im-

pose time limits in addition to those provided for by

Constitution with respect to government investigations

undertaken while defendant is not subject of formal

proceedings; taken together, 18 U.S.C.S. §§ 3161(d) and

(h) (6) make it clear that Congress’ purpose was to

disregard period after dismissal of complaint and prior

to filing of indictment for same offense; although § 3161

(h) (6), read literally, suspends running of Act’s time

limits upon Government’s dismissal of indictment, as

37a

Despite the clarity of Judge McCree’s opinion in

Martin and, in effect, the adoption of this view by

the Congress itself in its legislatively mandated

Speedy Trial Act, the panel opinion has included in

its calculation of “length of delay” the period be-

tween 1970 and 1975, after the dismissal of the mili-

tary Article 32 proceedings when the defendant was

not accused.“ In Mac Donald I, the court sought

to justify such inclusion by this reasoning:

MacDonald’s freedom from detention on bail

during the interval between the termination of

the Article 32 proceeding and his arrest after

indictment did not, from a practical standpoint,

dispel the effects of the government’s initial ac-

cusation. MacDonald, of course, realized that the

favorable conclusion of the Article 32 proceed-

distinguished from complaint, it follows that upon volun-

tary dismissal of complaint period thereafter up to filing

of indictment should not be included, if not disregarded

entirely pursuant to § 3161 (d). United States v. Hillegas

(1978) 578 F.2d 453.

This conclusion follows the authoritative language of S.Rep.

No. 93-1021, at 38, Report in the Senate Judiciary Committee

on the Speedy Trial Act, July 18, 1974:

“Thus, when subsequent complaints are brought, the

time limits will begin to run from the date of the filing

of the subsequent complaint.”

*It would seem that, since the dismissal of the military

proceedings must be taken as at the defendant’s motion, the

entire time prior to the second indictment should be elimi-

nated from the computation of “length of deley.” It does not

matter here, though, whether or not we include this period

between arrest and dismissal of the military proceedings.

Whether included or not, the “length of time” here, just as in

Martin, would not be enough to meet the “triggering” test

under Barker.

ings was not the 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 suspension and was

subject to the anxiety of the threat of another

prosecution.”

531 F.2d at 204. In the present panel opinion, the

court finds the same factors to constitute “personal

prejudice to the accused [sic].”

The circumstances advanced by the two opinions

for refusing to exclude the period when no criminal

proceedings of any kind were pending before the

court and the defendant was not subject to any legal

restraint or accusation will not support a Sixth

Amendment speedy trial claim, for the simple reason

10 Neither ground stated by the court would justify even a

due process claim under the Fifth Amendment. The courts

have uniformly dismissed general statements of anxiety as

insufficient to support any claim of prejudice. As the court

said in United States v. Shepherd, 511 F.2d 119, 123 (5th

Cir. 1975), “. . . anxiety is present to some degree in every

case. Something more than the ordinary anxiety that ac-

companies a trial is necessary to show a degree of prejudice.”

See also, United States v. Avalos, 541 F.2d 1100, 1115 (5th

Cir. 1976).

The defendant may have continued the representation he

had in the military proceedings after the case was referred

to the Department of Justice. But such expense as this

entailed was directed at inducing the Department not to

prosecute. This is hardly a ground in speedy trial cases. In

every extended criminal investigation, the one who considers

himself as the object of the investigation generally has em-

ployed counsel. We doubt that the courts are prepared to

consider this expense as prejudice, certainly not prejudice

sufficient to justify freeing one whose guilt was later estab-

lished by the unanimous verdict of a jury after an error-free

trial.

that there was no charge against the defendant to be

tried during this time. What the two opinions over-

look is that the defendant has a remedy if any delay

prior to indictment created sufficient prejudice that it

can be fairly said that the defendant’s right to a fair

trial has been impaired. But—we repeat—this rem-

edy is not found under the Sixth Amendment speedy

trial clause but under the Fifth Amendment due

process clause. This fact was made abundantly clear

in Arnold v. McCarthy 566 F.2d 1377, at 1383 (9th

Cir. 1978). There, the court said:

When the mistrial was declared on November

4, 1969, after the jury failed to reach a verdiet

in Aronld’s first trial for robbery assault, the

prosecution moved to dismiss the charges. The

dismissal was granted without prejudice. After

the dismissal Arnold was no longer accused“;

he no longer had any right to demand a speedy

trial under the Sixth Amendment. Any conten-

tion that he was prejudiced by delay between

this dismissal and his second trial must be tested

under the general requirements of due process."

11 See also United States v. Beckham, 505 F.2d 1316, 1819

(5th Cir. 1975), and United States v. Davis, 487 F.2d 112

(5th Cir. 1973), cert. denied, 415 U.S. 981 (1974).

The Senate Committee Report, supra, p. 7, n.5, suggests

this same remedy if there is improper delay between indict-

ments. Thus, after stating that the time limits are inap-

plicable to the period between a dismissed initial indictment

and a second indictment, it states (p. 38):

The Committee is concerned that this provision not be

used to evade the speedy trial time limits set out in this

Act. The prosecutor should not be able to avoid the

speedy trial time limitations when his carelessness in

preparing the original complaint or indictment has re-

sulted in a dismissal under this section. Therefore, when

40a

We suggest with the utmost deference, for what

we recognize is the sincere conviction of our col-

leagues who feel that a rehearing is not required,

that as the opinions now stand, it cannot be said

that, in setting aside this murder conviction on

speedy trial grounds, we have fully covered and

clearly resolved the critical threshold issue of “length

of delay”. This, after all, is an important case with

wide public interest. Any opinion in the case should,

we respectfully suggest, thoroughly canvas all the

points raised, whether in the original hearing or by

the petition for rehearing, and, by our opinion on

those points, assure the defendant, the government

and the public that we have not passed over in si-

lence but have frankly and fully considered those

points and reached a just result. This will be one of

those rare cases in which a plea of a violation of the

speedy trial right under the Sixth Amendment has

been upheld. It thus behooves us not to dismiss in

silence a serious point, sustained as it is by respec-

table authority and, by analogy at least, by Con-

gressional action, and to set at naught the verdict of

a jury which unanimously found the defendant

guilty after an error-free trial. Rehearing and deci-

sion on the important point raised by the Govern-

ment on whether the period between dismissal of the

military “arrest” for want of probable cause and the

actual indictment should be included in the compu-

a judge dismisses an original information or indictment

on other than speedy trial grounds he should, neverthe-

less, take into consideration the defendant’s right to

speedy trial under the statute and under the Constitu-

tion. For example, the judge might want to order that

the original dismissal be with prejudice so that the prose-

cutor could not reindict several months after a care-

lessly drawn indictment has been dismissed.

4la

tation of “length of delay” is, in our opinion, de-

manded in this case. We dissent from the failure to

face the issue directly.

If our opinion is correct that the “length of delay“

in this case was insufficient to “trigger” further in-

quiry into the claim of a violation of the speedy trial

provision of the Constitution, it is unnecessary, as we

have said, to consider the other factors set forth for

consideration in Barker. We would remark briefly

on these factors, however, on the assumption that,

contrary to what we conceive the law to be, the

Court could under a Sixth Amendment speedy trial

claim, consider delay between the dismissal of the

military proceedings and the return of the indict-

ment. We shall accordingly discuss briefly the three

factors listed in Barker other than the threshold one

of length of delay.

The prevailing panel opinion fixes the delay attrib-

utable to the Government (the second factor to be

considered under Barker) as that between the re-

ceipt of the CID report by the Department of Justice

in 1972 and the date of the return of the indictment,

or a period of two and one-half years prior to indict-

ment. The CID report submitted to the Department

consisted of thirteen volumes and innumerable docu-

ments. It was not a complete report and was so rec-

ognized by the CID for it suggested that the Depart-

ment conduct additional investigations. Such a rec-

ommendation was understandable. The crime in-

volved was both horrible and bizarre. The only eye

witness was the defendant himself. Any prosecution

was dependent upon the development of a convincing

web of circumstantial evidence. This was a herculean

task. And it was a task that the Government under-

took seriously. It felt an obligation both to itself and

42a

to the defendant to proceed with great care lest it

err either in absolving a likeiy guilty party or in

unfairly charging a seeming innocent party. In this

effort to be thorough, it had the CID twice reopen its

investigation in order to pursue additional evidence.

The bodies of the deceaseds, the wife and children of

the defendant, were exhumed in order that a hair

test could be performed. The result of these tests

was a critical point in the case. It is thus clear that

this was not a simple case but one of infinite factual

ramifications. Perhaps the Department could have

moved with greater speed in investigating these

facts. Unquestionably, there was some delay because

of, what one court has characterized, as institu-

tional dysfunction.” But the delay from this cause

was not substantial and it certainly was not

prompted by any tactical or vindictive purpose, or

anything other than a “benign” purpose. As such it

is not given much weight in this context.”

The prevailing opinion suggests that the delay by

the Department may have been “a disagreement be-

tween two groups in the Justice Department as to

whether the case should be prosecuted” or “just sim-

ple government bureaucracy.” For this latter state-

ment the opinion seems to rely on a statement of an

assistant district attorney that from the receipt of

the CID report he thought the Government had

enough evidence to prosecute. We give little or no

weight to this fact. So far from being a criticism of

the Department, this hesitancy on its part to pro-

ceed on the recommendation of the assistant district

2 United States v. McGrath, 622 F.2d 36, 41 (2d Cir.

1980).

18 Barker v. Wingo, 407 U.S. at 530.

43a

attorney without the most careful consideration of

every contrary argument and circumstance is to be

commended, not condemned. Often a zealous investi-

gator or prosecutor wishes to rush in with a prose-

cution when others, less intense in their feelings and

more balanced in their judgment, would wish further

investigation and inquiry. We do not think we

should establish any rule that when any zealous

“eager beaver” investigator or assistant district at-

torney recommends prosecution, any delay by the

Department of Justice in authorizing prosecution

should be ascribed to bureaucratic bungling; nor

should we want to criticize the Department for any

delay when its delay was due to a desire to consider

fairly the arguments of those opposed to prosecution.

And this we take to be the opinion of the Supreme

Court, as it was forcefully expressed in United

States v. Lovasco, 431 U.S. 783, 790-91 795 (1977).™

14 In this case the Court said at pp. 790-91 and 795:

It requires no extended argument to establish that

prosecutors do not deviate from ‘fundamental concep-

tions of justice’ when they defer seeking indictments

until they have probable cause to believe an accused is

guilty; indeed, it is unprofessional conduct for a prose-

cutor to recommend an indictment on less than probable

cause. It should be equally obvious that prosecutors are

under no duty to file charges as soon as probable cause

exists but before they are satisfied they will be able to

establish the suspect’s guilt beyond a reasonable doubt.

To imrose such a duty ‘would have a deleterious effect

both upon the rights of the accused and upon the ability

of society to protect itself’... .

... . Rather than deviating from elementary standards

of ‘fair play and decency,’ a prosecutor abides by them

if he refuses to seek indictments until he is completely

satisfied that he should prosecute and will be able

44a

In short, we feel that, considering the complexity of

this case and the difficulty of reviewing the many

strands of circumstantial evidence involved, the Gov-

ernment was not guilty of excessive delay in begin-

ning the prosecution.

Turning to the third Barker factor, it may be con-

ceded that in this two and one-half year period dur-

ing which the Department was proceeding with its

investigation, the defendant was pressing the Depart-

ment. Primarily, he sought to induce the Depart-

ment to abandon the investigation, but he did ask

that, if it were going to prosecute, to prosecute then.

But it has been held that a putative defendant has

no right to demand that he be arrested or that an

investigation be abandoned.” The reason for this

rule is that to uphold such a right would be to inter-

fere improperly with the executive’s discretion to in-

vestigate and to prosecute. See Judge Mansfield’s

opinion in United States v. Hillegas, 578 F.2d 453,

456-7 (2d Cir. 1978). Any contrary rule would en-

able any person under investigation to frustrate that

investigation of his possible criminal conduct by de-

manding prosecution as soon as he hears that his

conduct is under serutinv It is easy to see how such

promptly to establisn guilt beyond a reasonable doubt.

Penalizing prosecutors who defer action for these rea-

sons would subordinate the goal of ‘orderly expedition’

to that of ‘mere speed’.

15 United States v. Lovasco, 481 U.S. at 790-96. See also,

Hoffa v. United States, 385 U.S. 293 (1966). (“There is no

constitutional right to be arrested . . Law enforcement offi-

cers are under no constitutional duty to call a halt to a crimi-

nal investigation the moment they have the minimum evidence

.. which may be enough perhaps to establish probable

cause, but not sufficient to prove someone guilty beyond a

reasonable doubt.)

45a

a rule would thwart the effective prosecution of

many complex cases, for example, tax fraud cases,

to mention but one instance of the rule’s impropriety.

Moreover, this contention is appropriately directed

only to a claim of violation under the Fifth Amend-

ment (due process) as distinguished from a speedy

trial claim under the Sixth Amendment.

Finally, we turn to “prejudice,” which is declared

to be the most significant “factor” in the Barker

litany.“ Barker identified the three circumstances

which could represent prejudice to the defendant in

this context: they are (a) oppressive pretrial in-

carceration; (b) anxiety of the defendant; and (c)

impaired defense. The first two can be quickly dis-

posed of. The defendant suffered no oppressive in-

carceration, and “anxiety” is present in every prose-

cution. For that reason, “anxiety” standing alone, will

not ordinarily support a claim of prejudice in an

accused’s defense, since, “[s]omething more than the

normal anxiety that accompanies a trial is necessary

to show a degree of prejudice.” United States v.

Shepherd, supra, p. 8; United States v. Hill, 622 F.2d

900, 910 (5th Cir. 1980); United States v. Venella,

619 F.2d 384, 386 (5th Cir. 1980). That leaves as

the only basis for prejudice in this case a showing of

1% In fact, the Supreme Court, in reversing MacDonald I

indicated quite clearly, if we read correctly its opinion, that

the question of prejudice was one to be analyzed and ruled

on by the district judge, who had the benefit of the full rec-

ord as well as the best opportunity to evaluate the credibil-

ity and weight to be accorded the evidence, and that his

judgment was only to be reversed for clear error. The district

judge in this case did so rule but the prevailing opinion of

our court gives no weight to this ruling of the district judge.

We believe that, in so dismissing without comment the dis-

trict judge’s action, the prevailing opinion has not followed

the suggestion of the Supreme Court.

46a

impaired defense. And this does not mean vague

claims of prejudice or an assertion of speculative

prejudice; it means a showing of actual prejudice to

the defendant’s defense. This was spelled out by the

Court in Hill v. Wainwright, 617 F.2d 375, 379 (5th

Cir. 1980), in which a claim of a speedy trial viola-

tion was dismissed because the defendant had failed

to demonstrate actual prejudice.” (Emphasis added)

Judge Bryan’s dissenting opinion in MacDonald II

demonstrates convincingly why there was no actual

prejudice of the defense by the delay prior to indict-

ment. There were many witnesses at the trial. The

defendant points only to one witness whose failure to

recall, he claims, was prejudicial to his defense. This

witness was in such a mental condition that she could

not supply any information pertinent to the trial.

This was not, however, a condition which developed

as a result of any delay in either the investigation or

the prosecution of the defendant. From the first in-

terview of this witness shortly after the murders

on through all the investigations and post-indictment

maneuverings up to actual trial, her mental condition

was the same; she could recall nothing relevant to the

case. Without any real prejudice, the defendant had

neither a Fifth Amendment due process violation nor

a Sixth Amendment speedy trial violation.

It is possible that some members of the Court may

have been influenced against the request for en banc

rehearing, as filed by the Government, because the

primary point on which rehearing was requested was

one which the Government had not earlier identified

specifically on the first appeal in this case and was

not pressed particularly on initial argument on this

appeal. The failure of the Government to have ex-

pressly brought out the point on the first appeal may

make our failure earlier to consider it understand-

47a

able (one of those concurring in this dissent pleads

such excuse) but when, by the petition for rehearing

on this appeal, the point is clearly raised, with sup-

porting authority, and the point, if sustained as the

Government contends it should be, is dispositive of

the critical threshold issue of length of delay under

the speedy trial plea, we do not believe the failure

of this court even to consider or decide the point is

understandable. Whether cited to us early or late,

we should not decide cases by dismissing out of hand

relevant decisions dispositive of a critical issue in the

ease. And, if this point pressed by the petition for

rehearing by the Government, is tenable, as we feel

it is, it requires a reconsideration of all the factors

which Barker says should be considered in this con-

text. What we strongly object to is the failure even

to consider, much less to come to grips with, what we

conceive to be a dispositive issue in this case.

In summary, we are convinced that, properly com-

puted, there was not such “length of delay” in this

prosecution as to “trigger” inquiry on speedy trial

constitutional grounds under Barker v. Wingo. This

fact is made clear in the Government’s petition for

rehearing. Since the panel opinion is to the contrary,

en bane rehearing is necessary to correct that error

in the panel’s opinion.

Though the above point as raised in the petition

for rehearing is, in our opinion, dispositive of this

case, we are equally convinced that the defendant in

this case has not satisfied the requirements of the

other factors listed in Barker for the granting of a

dismissal on speedy trial grounds under the Sixth

Amendment.

We accordingly dissent from the denial of rehear-

ing en banc by an equally divided vote in this case.

48a

MURNAGHAN, Circuit Judge:

It had been my intention to abide by the customary

disposition, a simple indication that the request for

rehearing en banc had failed for want of a majority

vote. In view of the dissent filed by Judges Russell,

Widener, Hall and Phillips, however, two additional

points should be made.

First, I apologize to my colleagues for the error

in langauge in the panel opinion to which the dissent,

in footnote 6, calls attention. I erred when I stated

that “[t]he offending delay imposed by the govern-

ment was not the time between the indictment and

trial, but the lapse of time between the military

arrest and trial.” Properly, I should have stated:

„It jhe offending delay imposed by the government

was not the time between the indictment and trial,

but the lapse of time between the conclusion of the

military proceedings in October 1970, and the in-

dictment in January, 1975.”

Elsewhere the panel opinion confirms that the

panel majority did not include time beyond January

1975 for purposes of considering the speedy trial

issues.

Second, the reiterated reference in the dissent to

the trial in the case as “error-free” is premature and

may not be correct. The panel majority was at pains

to point out that it did “not reach the district judge’s

conduct and rulings at trial. Whether the trial

was “error-free” is simply a matter not yet ad-

dressed.

Finally, since I have felt compelled to write some-

thing, I should not pass, in complete silence, the

dissent’s principal plaint: its contention that time

between dismissal of an indictment (or its equivalent)

and the processing of a subsequent indictment should

49a

not count for purposes of determining whether a

speedy trial has been denied. Few, if any, absolutes

exist in our judicial system. Each case presents its

peculiar difficulties. While in at least one case, United

States v. Martin, 543 F.2d 577 (6th Cir. 1976), cert.

denied, 429 U.S. 1050 (1977), the Court said that

the interval should not count, it did not say that it

would never count. Here the situation was such that,

from October 1970 (when the military proceedings

concluded with a dismissal) until indictment in 1975,

MacDonald’s possible involvement was not dormant.

The immense publicity and the continued inquietude

because the matter was not put to rest engaged the

tenets of the Sixth Amendment.

For authority applicable to this particular case,

the decision in United States v. MacDonald, 531 F.2d

196 (4th Cir. 1976), is more compelling than a deci-

sion on different facts in another circuit. See espe-

cially 531 F.2d at 202: “Noting this, the Court care-

fully avoided adopting a simplistic rule that pre-in-

dictment delay is always immaterial.”

50a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

NORTH CAROLINA

FAYETTEVILLE DIVISION

No. 75-26-CR-3

UNITED STATES OF AMERICA, PLAINTIFF

vs.

JEFFREY R. MACDONALD, DEFENDENT

[Filed Sept. 14, 1979]

ORDER

Convicted by a jury of three counts of murder and

sentenced by the court to three consecutive life sen-

tences the defendant, Jeffrey R. MacDonald, through

his counsel moved in open court immediately follow-

ing pronouncement of judgment to be permitted to

remain on bail pending appeal. The motion was de-

nied initially but without prejudice to defendant’s

right to reduce the motion to writing and support it

with further authorities and argument. This has now

been done and two informal hearings attended by

counsel for defendant and the government have been

held. The court’s final decision not to allow bail pend-

ing appeal was announced on September 7, 1979, and

the reasons supporting this conclusion will now be

recorded.

Although the government did not seek the death

penalty in this case, the statute under which it was

prosecuted still provides for such penalty, and tradi-

tionally bail has not been allowed in capital cases.

The Bail Retorm Act of 1966, 18 U.S.C. §§ 3146,

5la

et geg., however, provides for release on bail of per-

sons convicted of a capital offense who have filed an

appeal in accordance with the provisions of 18 U.S.C.

§ 3146 “unless the court or judge has reason to be-

lieve that no one or more conditions of release will

reasonably assure that the person will not flee or pose

a danger to any other person or to the community

... or if it appears that an appeal is frivolous or

taken for delay... .” 18 U.S.C. § 3148. While it is

true that this defendant is a well established pro-

fessional man (a doctor) and has never heretofore

failed to meet all court appearances, the situation

with which he is now confronted is, of course, far

different from that which has heretofore obtained.

As a highly skilled physician the defendant presum-

ably would have no difficulty at all in finding employ-

ment in any one of the many countries in the world

which do not have in effect extradition treaties with

the United States, and the temptation to seek refuge

in another country would certainly be great indeed

in this case.

Even so, the court would be reluctant to keep this

defendant imprisoned while awaiting appeal if the

court were convinced of the possibility of serious, re-

versible error in defendant’s trial. Defense counsel

were therefore re uested to set forth in their written

motion for bail those assignments of error on which

principal reliance would be placed in the appeal, and

in their motion they have listed some sixteen or more

allegations of error only a few of which the court

has deemed worthy of comment.

The cornerstone of defendant’s legal defense re-

mains his claim that he was denied his constitutional

right of a speedy trial in the case. Quite correctly

he points to the fact that the initial ruling of this

52a

court denying his motion to dismiss based on speedy

trial grounds was reversed in a split decision by the

Fourth Circuit almost four years ago. United States

v. MacDonald, 531 F.2d 196 (4th Cir. 1976). But

the Supreme Court held that the Fourth Circuit

lacked jurisdiction to entertain MacDonald’s speedy

trial appeal, and the case was eventually remanded

to this court for trial. 435 U.S. 850 (1978). After

referring to the four factors to be weighed in de-

termining whether an accused has been deprived of

his constitutional right to a speedy trial as set forth

in Barker v. Wingo, 407 U.S. 514 (1972) (length

of delay, reason for delay, whether defendant has

asserted the right and prejudice to defendant from

the delay) the Supreme Court stated that prejudice

to the defendant from the delay was the most serious

and went on to say:

“Before trial, of course, an estimate of the de-

gree to which delay has impaired an adequate

defense tends to be speculative. The denial of a

pre-trial motion to dismiss an indictment on

speedy trial grounds does not indicate that a like

motion made after trial—when prejudice can be

better gauged—would also be denied. Hence, pre-

trial denial of a speedy trial claim can never be

considered a complete, formal and final rejec-

tion by the trial court of the defendant’s con-

tention; rather, the question at stake in the mo-

tion to dismiss necessarily ‘remains open, unfin-

ished (and) inconclusive’ until the trial court

has pronounced judgment.” Id., 435 U.S. 858-9.

In the light of the Supreme Court’s decision this

court summarily overruled defendant’s renewed mo-

tion to dismiss on speedy trial grounds again inter-

posed at the pre-trial conference held on July 14,

53a

1979. At that time the defendant took the position,

to which he apparently still strongly adheres, that

since the Fourth Cireuit has already expressed its

opinion on the speedy trial issue notwithstanding its

decision was overturned later on jurisdictional

grounds, it is a foregone conclusion that the case will

again be dismissed on these grounds when it reaches

the Fourth Circuit on appeal. This court does not

believe that this result necessarily follows, and it is

noted in the inception that following the court’s order

of July 14, 1979 the defendant promptly petitioned

the Fourth Circuit for a writ of mandamus asking

that the indictment be dismissed on speedy trial

grounds which petition the Fourth Circuit just as

promptly rejected.

Accordingly, the case has been tried to a jury in

this court in a trial lasting six and one-half weeks

during all of which time this court has been alert to

detect the existence of any of the four factors re-

quired to be considered under Barker v. Wingo, supra,

in determining the speedy trial issue. The length of

the delay between the time of the crimes and the

return of the indictment, almost five years, is, of

course, fixed and indisputable, and although the gov-

ernment’s explanation for much of the delay is not

without plausibility, the impression remains that the

case could have been put before the grand jury at a

much earlier date than it was. There is also some

evidence that the defendant expressed the desire to

have the case brought to a head one way or the other

much earlier than the time the indictment was re-

turned. The assertion of a right to a speedy trial,

however, is normally understood to refer to a right

to a trial by one who has been indicted and is subject

to a trial rather than to a right to have the govern-

54a

ment to accelerate its efforts to obtain an indictment.

It will be remembered, of course, that the four-and-

a-half-year delay which followed the indictment was

attributable almost entirely to the pursuit by de-

fendant of innumerable motions, appeals and attempt-

ed appeals, all of which were ultimately resolved

against him.

Essentially, then, the question involved here is

whether the defendant has been prejudiced by pre-

indictment delay. As stated in Barker, this question

must be considered in the light of the interests the

speedy trial right was designed to protect: “(i) to

prevent oppressive pretrial incarceration; (ii) to min-

imize anxiety and concern of the accused; and (iii)

to limit the possibility that the defense will be im-

paired.”

While the Fourth Circuit in its original considera-

tion of the speedy trial issue seemed to equate the

defendant’s restriction to quarters during the time

the case was under investigation by the Army au-

thorities with “pretrial incarceration,” Judge Craven

in his dissenting opinion in that case pointed out that

the conditions under which defendant was restricted

were far from burdensome. He apparently was able

to go to and from his meals, to play golf and to have

a feminine companion to visit him in his quarters

from time to time, amenities certainly not enjoyed

by one incarcerated in a jail awaiting trial. He ap-

parently continued to draw his full pay without hav-

ing to work, a privilege which few, if any, persons

incarcerated awaiting trial ever enjoy. This court

cannot see that there has been any “oppressive pre-

trial incarceration” in this case.

The anxiety and concern, if any, of this defendant

would involve his subjective feelings, and while it can

55a

certainly be assumed that he would have much pre-

ferred to know that the matter had been finally put

to rest, the evidence is that following his honorable

discharge from the Army and a short return to his

home in New York he moved to California where he

promptly established himself in the practice of his

profession and acquired a wide host of friends both

professional and social. The record would not sup-

port a finding that this defendant has suffered great

anxiety and concern by reason of the pre-indictment

delay in this case.

The fears expressed by the Fourth Circuit in its

1976 decision that the defendant’s ability to defend

the case adequately might be seriously prejudiced by

the pre-indictment delay have not been borne out in

the record developed at trial. Almost incredibly, the

only material witness on either side of the case shown

to have died was a government witness, and not only

were all of defendant’s original witnesses shown to

be available to testify, but he was also able to produce

one or more witnesses who were not even known to

the defendant until recent times and who gave testi-

mony vital to the defense. In addition the defendant

was able to have the benefit of the testimony of sev-

eral highly competent expert witnesses who were not

known to or available to him at the time of the Army

hearing in 1970. Finally, by reason of the excellent

record he has made in the practice of his profession

in California in the last seven or eight years defen-

dant was able to produce a most impressive array

of character witnesses none of whom would have

been available to him had he been brought to trial

within a year or two after the crimes were com-

mitted.

Significantly, in none of his motions based on

speedy trial grounds has the defendant alleged any

56a

particular in which his defense has been prejudiced

in the least by delay. Contrarily, this court is of

opinion that the delay may very well have worked in

defendant’s favor in that juries are not known to

look with favor on stale claims, and there was no

way that the jury in this case could have known that

approximately one-half of the delay here was attrib-

utable to actions taken by the defendant himself

rather than the government. Be this as it may, the

court finds that the defendant’s ability to defend this

case adequately was not prejudiced by any of the

delay, pre-indictment or otherwise, and that his

speedy trial claim should be denied.

Since the court’s instructions to the jury were not

objected to by either party at the trial and defendant

has pointed to nothing in the instructions which might

conceivably constitute plain error, it is assumed that

defendant’s principal claim of prejudicial error dur-

ing the course of the trial will center around the

court’s alleged erroneous evidentiary rulings. The two

principal exceptions taken were to the court’s refusal

to admit testimony of witnesses to statements made

out of court by the defendant’s witness, Helena

Stoeckley, and its refusal to admit the testimony of

a psychiatrist, one Dr. Sadoff. The bases of the

court’s rulings on these two questions were dictated

into the record at trial, see Transcripts for August

20, 1979 (Stoeckley) and August 22, 1979 (Sadoff),

but it was indicated at the time that the court might

elaborate further cn its rulings in writing as soon

as time should permit. This will now be done.

The Stoeckley Witnesses. Helena Stoeckley, an ac-

knowledged drug addict, was living in Fayetteville at

the time of the murders in question in February,

1970, as a fairly well-known member of the drug

57a

culture. Colonel Rock, who conducted the Article 32

proceedings for the Army in 1970, had recommended

that Stoeckley be investigated as a possible suspect

in the MacDonald murders. Apparently this was

based on the fact that this drug-addicted girl had

engaged in some rather bizarre behavior shortly after

the murders and had been unable to account for her

whereabouts for about four hours on the early morn-

ing of February 17, 1970, during which time the

murders occurred. She reportedly made statements

to the effect that she thought she might have been in

the MacDonald home at the time of the crimes, and

there was evidence to the effect that she obtained

some funeral wreaths from a florist shop near her

residence and wore black for a while as if she were

in mourning for the murder victims. There was also

evidence that she had a long blond wig and a “floppy”

hat and boots which in some respects seemed similar

to those allegedly worn by one of the intruders

claimed by defendant MacDonald to have committed

the murders of his wife and two young daughters.

Stoeckley was located during the course of the trial

at a place in South Carolina near Greenville and be-

cause of her reluctance to come to court in obedience

to a subpoena the court ordered her taken into cus-

tody and brought to Raleigh to testify on behalf of

the defendant. Upon her arrival counsel for defen-

dant asked for a short recess to interview Stoeckley,

and this stretched into almost an entire day of con-

ferences between defense counsel, Stoeckley and a

number of witnesses to whom she had allegedly made

statements of one kind or another over the nine and

one-half years which have elapsed since the murders

in which she would indicate some possibility of her

own involvemenò in these crimes.

58a

On the following day Stoeckley was put on the

stand by defense counsel and questioned at consider-

able length about her knowledge of the MacDonald

murders. The substance of her testimony was that

she was not involved in the murders but that because

of her drug-crazed condition she had at least come

to wonder whether or not she was in fact involved,

and she admitted to owning the clothing referred to

above and the fact that she seemed to go into mourn-

ing following the murders. The court gained the un-

mistakable impression which it believes was shared

by the jury that this pathetic figure was suffering

from drug-induced mental distortion and that she

could be of no help to either side in the case.

The defendant next took the voir dire testimony of

a half dozen or more witnesses to whom Stoeckley

had made statements relating to the MacDonald mur-

ders beginning with a Fayetteville detective who in-

terviewed her within a few days after the murders

and ending with witnesses including members of de-

fense counsel’s staff who interviewed Stoeckley on

the day she arrived in Raleigh to testify.

Several of these witnesses talked to Stoeckley in

Nashville, Tennessee where she was living in the fall

of 1970 and the early part of 1971. When she would

talk to these witnesses she would sometimes be “hys-

terical”, “crying”, and “blubbering”. She would say

things like “I don’t know whether I did it or not.”

She told one witness that she remembered being at

the MacDonald home, that she knew who did it but

that she did not do it herself, that she remembered

nothing about the evening, that MacDonald himself

did the killings and that she was unable to describe

anything inside the MacDonald apartment. She was

under the influence of drugs at times when she talked

59a

to this witness but at other times she was not under

the influence of drugs. She was interviewed by a

CID agent on April 23 and April 24 of 1974 and

told him that she was convinced that she had par-

ticipated in these crimes for three or four months

but was now of the opinion that she was present but

did not participate. She was under the influence of

narcotics the first day she talked to the CID agent

but was “better” on the next day when she retracted

everything she had told the agent on the previous

day. This agent was unable to develop any informa-

tion from Stoeckley showing that she really had any

knowledge of the crime, and all the possible leads

she was able to furnish were checked out and it was

verified that the persons named by her were not

involved.

The Fayetteville detective, one Beasley, interviewed

Stoeckley at her home in Fayetteville between 2:30

and 3:00 a.m. on the morning of February 18, which

was the day following the murders, and she told him

at that time “in my mind it seem. that I saw this

thing happen,” but she stated further that she was

under the influence of the drug mescaline at the time

and that she then backed off and would say no more.

This officer held Stoeckley and several of her male

companions for about an hour that morning after

requesting his headquarters to contact the CID and

have them come and interview these people, but when

the CID agents did not arrive in about an hour the

detective released these people and has never seen

them again. Curiously, this officer’s notes of his in-

terviews with Stoeckley and her companions were

lost or misplaced, and he has never seen them again.

If it is within the province of this court to pass on

the trustworthiness of a witness who proposes to

60a

testify as to statements of another witness allegedly

qualifying as an exception to the hearsay rule, see

United States v. Satterfield, 572 F.2d 687 at p. 69

(9th Cir. 1978), cert. denied, 99 S.Ct. 128, this court

would be contrary to hold Officer Beasley’s testimony

to be unreliable. It is simply incredible that any self-

respecting, competent police officer who really thought

he had a substantial lead toward solving these sensa-

tional murders would allow the suspects to go after

waiting only an hour for the Army investigators to

come when he had had no direct contact with them

himself and that he would never again pursue the

lead on his own.

Statements allegedly made by Stoeckley to her

neighbor, one Posey, were of the same equivocal char-

acter as the statements sought to be proven by the

other witnesses referred to above. For reasons which

were brought out more fully by the government’s

cross-examination of this witness, if required to do

so this court would find his testimony untrustworthy.

The defendant sought to introduce testimony of

these out-of-court statements by Stoeckley as excep-

tions to the hearsay rule under Rule 804(b) of the

Federal Rules of Evidence, contending that they qual-

ified as statements against Stoeckley’s penal interest

in view of Stoeckley’s “unavailability as a witness.”

In view of Stoeckley’s testimony that she had no

recollection of the subject matter of at least some of

her statements, the court was prepared to rule that

she qualified as an unavailable witness under Rule

804 (a) (3), and although it is a debatable proposi-

tion, the court was willing to assume arguendo that

the statements were against Stoeckley’s penal inter-

est. The trouble with the proffered testimony, how-

ever, lies in its failure to meet the test of the second

sentence of Rule 804 (b) (3) which reads as follows:

6la

“A statement tending to expose the declarant

to criminal liability and offer to exculpate the

accused is not admissible unless corroborating

circumstances clearly indicate the trustworthi-

ness of the statement.”

After studying the transcript of Stoeckley’s own

testimony and that of the proposed witnesses given

on voir dire the court was convinced that far from

being shown by corroborating circumstances to be

clearly trustworthy, the alleged statements of Stoeck-

ley were so clearly untrustworthy that the court

should not hesitate to exercise its discretion to ex-

clude the evidence under Rule 403, F.R.E., which

provides:

“Although relevant, evidence may be excluded

if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by consid-

erations of undue delay, waste of time, or need-

less presentation of cumulative evidence.”

That the determination of admissibility under Rule

804(b) (3) is left to the discretion of the trial court

is hardly open to question, United States v. Guillette,

547 F.2d 743 (2nd Cir. 1976); United States v. Ro-

peza, 564 F.2d 316, 325 (9th Cir. 1977), and the

standard for appellate review is whether or not the

discretion was abused. United States :. Bagley, 537

F.2d 162, 166-167 (5th Cir. 1976).

The closest case on the facts which the court was

able to find was United States v. Satterfield, 572 F.2d

687 (9th Cir. 1978), cert. denied, 99 S.Ct. 128. In

that case the witness took the Fifth Amendment and

therefore made himself unavailable. In sustaining

the trial court’s ruling excluding testimony about an

62a

alleged statement made out of court by the witness

because clear circumstances corroborating the ve-

racity of the witness were absent, the court listed

some of the circumstances which tended to corrob-

orate the trustworthiness of the statement and others

which indicated that the statements were untrust-

worthy. The court said:

“Under Rule 804 (b) (3), the corroborating cir-

cumstances must do more than tend to indicate

the trustworthiness of the statement; they must

clearly indicate it. There is good reason to be-

lieve that [the witness] staged the argument

with [the defendant’s] help and that his alleged

statements. . . were also fabricated. The trial

court did not abuse its discretion in denying

[defendant’s] motion to admit this evidence.”

Id. p. 693.

In assessing the trustworthiness of statements of

the kind sought to be introduced here the court must

inquire into the reliability of and the necessity for

the statement. United States v. Carlson, 547 F.2d

1346 (8th Cir. 1976), cert. denied, 431 U.S. 914.

Here the statements of Stoeckley were anything but

reliable, and no necessity for her making the state-

ments was ever shown. To the contrary, it appears

that for the most part the statements were made by

her voluntarily while she was under the influence of

powerful narcotics.

The case relied upon by defendant, Chambers v.

Mississippi, 410 U.S. 284 (1973), is clearly distin-

guishable. In that case the hearsay statements of the

declarant were originally made and subsequently of-

fered at the trial under circumstances that provided

assurance as to their trustworthiness. The statements

68a

consisted of the confessions made spontaneously by

the declarant to a close acquaintance shortly after

the crime had occurred; the statements were corrob-

orated by other evidence in the case including the

declarant’s sworn confession which he later repudi-

ated, the testimony of an eye witness to the murder,

the testimony that the declarant was seen with a gun

immediately thereafter and proof that the declarant

- owned a weapon of the kind involved in the crime.

Moreover, “[t]he sheer number of incependent con-

fessions provided additional corroboration for each” |

and “each confession here was in a very real sense

self-incriminatory and unquestionably against inter-

est.“ 410 U.S. 300-301. Nothing remotely resembling

such corroborating circumstance is present in the

case at bar. .

As an alternative ground for the admission of the

out-of-court statements of Stoeckley defendant argued

that the statements were admissible for impeachment

purposes under Rule 613, F.R.E. The court had the

definite feeling that the real purpose of counsel in

. endeavoring to get the evidence in as impeachment

was simply to get it before the jury, and if this is

so the evidence was properly excluded under United

States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975),

where it was said:

“The overwhelming weight of authority is...

that impeachment by prior inconsistent state-

ment may not be permitted where employed as

a mere subterfuge to get before the jury evi-

dence not otherwise admissible.”

In that case it was recognized that the danger of

confusion, even where the evidence is limited to im-

peachment, may be so great as to upset the balance

64a

and warrant its exclusion. Authority for exclusion

of such evidence is now contained in Rule 403, F.R.E.

The court chose to exclude the evidence on other

grounds. To begin with, in order to impeach a wit-

ness by a prior statement there must in fact be testi-

mony which is inconsistent with the prior statement.

Gilmour v. Strescon Industries, Inc., 66 F.R.D. 146

(E. D. Pa. 1975), aff'd, 521 F. 1398 (8rd Cir. 1975).

Any statement is inconsistent if under any

rational theory it might lead to any relevant

conclusion different from any other relevant con-

clusion resulting from anything the witness has

said.” 3 Weinstein’s Evidence, 613-11.

The alleged statements made by Stoeckley are in

some instances at variance with her sworn testimony

given at the trial in this case, but by the same token

the statements in some respects are entirely consis-

tent with testimony given at the trial by Stoeckley.

And so we were simply left with conflicting state-

ments made by Stoeckley to the same witness, and to

have allowed such statements to be admitted could

only have added to the confusion already engendered

by her own vague and totally untrustworthy testi-

mony which she had given from the witness stand.

The Psychiatric Testimony. The defendant prof-

fered the testimony of a forensic psychiatrist, Dr.

Robert L. Sadoff, who apparently proposed to give

testimony as follows:

“That it is recognized and accepted by rep-

utable specialists in the field of forensic psychi-

atry that certain personality/emotional config-

urations are identifiable in human beings which,

because of the mental disorders involved, are in-

dicative of a capability or disposition to certain

65a

types of anti-social conduct, including the com-

mission of homicides involving extreme brutality

to one’s own spouse and small children and other

crimes of violence; and that, conversely, other

personality/emotional configurations are identi-

fiable which are inconsistent with such anti-so-

cial behavior.

“That based on his psychiatric examination

of the defendant, it is his opinion of the character

of Dr. MacDonald that the defendant was and is

a man who is not given to extraordinary violent

outbursts of physical violence against his wife

and children; that he was and is an emotionally

normal, mentally stable man, neither evasive nor

apparently untruthful about the significant

events of his life, ineluding the murders of his

family, who did not possess the type of person-

ality / emotional configuration that would be con-

sistent with and/or manifests this type of mur-

derous assault on his wife and small children.“

This evidence was sought to be introduced under

Rule 404 (a) (1) of the Federal Rules of Evidence

which declares admissible evidence of a pertinent trait

of the character of an accused for the purpose of

proving that he acted in conformity therewith on a

particular occasion. Defendant contended that the

proffered psychiatric testimony would show that the

defendant “was a well-adjusted man, without violent

tendencies” and would “establish a personality con-

figuration inconsistent with the outrageous and sense-

less murders of defendant’s family.”

Numerous lay witnesses most of whom were highly

intelligent and articulate professional and business

people, had already testified to the defendant’s char-

acter traits of peacefulness, non-violence, rationality

66a

and compassion for his fellow man, but it was the

position of the defendant that the opinion of a quali-

fied psychiatrist based on his examination of the de-

fendant might well be more reliable evidence of char-

acter than that of even the most perceptive lay

observer. Defendant points to a note by the Advisory

Committee to Rule 405, F.R.E., which he contends

expressly sanctions the introduction of such psychi-

atric opinion testimony. The note reads in pertinent

part as follows:

“If character is defined as the kind of person

one is, then account must be taken of varying

ways of arriving at the estimate. These may

range from the opinion of the employer who has

found the man honest to the opinion of the psy-

chiatrist based upon examination and testing. No

effective dividing line exists between character

and mental capacity, and the latter traditionally

has been provable by opinion.”

In ruling on the admissibility of this proffered ex-

pert testimony the court indicated that it would allow

testimony by Dr. Sadoff as to the defendant’s char-

acter traits such as peacefulness and non-violence

which would be inconsistent with the commission of

the crimes in question, but that it had been concluded

following a study of the pertinent authorities that

the proffered testimony to the effect that “certain

personality/emotional configurations are identifiable

in human beings which, because of the mental dis-

orders involved, are indicative of a capability or dis-

position to certain types of anti-social conduct in-

cluding the commission of crimes of the type here

involved” should not be admitted. Several reasons

led the court to this conclusion.

67a

The legal principles applicable have been stated in

United States v. Amaral, 488 F.2d 1148 (9th Cir.

1973), as follows:

“The basic purpose of any proffered evidence

is to facilitate the acquisition of knowledge by

the triers of fact thus enabling them to reach a

final determination. As often stated, our system

of evidence rests on two axioms: Only facts hav-

ing rational probative value are admissible and

all facts having rational probative value are ad-

missible unless some specific policy forbids. .. .

Evidence which has any tendency in reason to

prove any material fact has rational probative

value.

“The general test regarding the admissibility

of expert testimony is whether the jury can re-

ceive ‘appreciable help’ from such testimony... .

The balance of the probative value of the ten-

dered expert testimony evidence against its prej-

udicial effect is committed to the ‘broad discre-

tion’ of the trial judge and his action will not

be disturbed unless manifestly erroneous. . . .

“The countervailing considerations most often

noted to exclude what is relevant and material:

evidence are the risk that admission will (1)

require undue consumption of time, (2) create

a substantial danger of undue prejudice or of

confusing the issues or of misleading the jury,

(3) or unfairly and harmfully surprise a party

who has not had a reasonable opportunity to an-

ticipate the evidence submitted. Scientific or ex-

pert testimony particularly courts the second

danger because of its aura of special reliability

and trustworthiness.

68a

“Because of the peculiar risks of expert testi-

mony, courts have imposed an additional test, i.e.,

that the testimony be in accordance with a gen-

erally accepted explanatory theory.” Id., p. 1152.

The court assumed that Dr. Sadoff could qualify

as an expert in in forensic psychiatry, but proof that

his proffered testimony would conform to a generally

accepted explanatory theory was lacking. In his brief

the defendant cited several articles in psychiatric

journals which were said to deal with this subject,

but the articles were not made available to the court,

and with the possible exception of the case of United

States v. Staggs, 558 F.2d 1073 (7th Cir. 1977), the

court was not cited any case decided under the Fed-

eral Rules of Evidence supporting the admissibility

of psychiatric testimony of the type sought to be in-

troduced here. The government, on the other hand,

has cited an article by an Assistant Professor of

Psychiatry at UCLA entitled “A Critique of the Psy-

chiatrist’s Role as Expert Witness,” 12 Journal for

Science 172 (1967), from which the following quote

is taken:

“It is not possible, nor is it likely in the near

future, for a psychiatrist who first sees the

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.