Petitioners Reply Brief — United States v. MacDonald

Office-Supreme Gourt, U.S.

KFiLED

No. 80-1582 MAY 18 198!

RLEMANDER L. STEVAS,

CLERK

Iu the Supreme Court of the United Fs

OCTOBER TERM, 1980

UNITED STATES OF AMERICA, PETITIONER

Vv.

JEFFREY R. MACDONALD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

WADE H. McCree, Jr.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Dillingham v. United States, 423 U.S. 64 ..... 1,2

Klopfer v. North Carolina, 386 U.S. 213 ........ 2

United States v. Bishton, 463 F. 2d 887 ........ 3

United States v. Lara, 520 F. 2d 460 ........... 3

United States v. Lovasco, 431 U.S. 783 ......... 3

United States v. Marion, 404 U.S. 307 ..... 1,2,3

United States v. Roberts, 548 F. 2d 665,

cert. denied, 431 U.S. 920 .......... cece eens 2

Constitution and rules:

United States Constitution:

Fiith Amendment ..............eeeeeeeee 2,3

Sixth Amendment (Speedy Trial

RENEE oes ACK Owie so 6 cc Chcrevvcctes 1,2,3

FOG VLE OE haeeu cesses cedcsodeaeceess 4

Fed. R. Evid. 804(b)(3) ......... cece ween eee 5

Inu the Supreme Court of the United States

OcTORER TERM, 1980

No. 80-1582

UNITED STATES OF AMERICA, PETITIONER

Vv.

JEFFREY R. MACDONALD

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

1. This case presents the important legal question whether

the Speedy Trial Clause of the Sixth Amendment applies to

a period when a person is not under arrest or formally

accused of a crime.' Respondent’s contention (Br. in Opp.

10-12) that the speedy trial right runs uninterrupted from

the time of an arrest ignores this Court’s established rule

that it is “the actual restraints imposed by arrest and hold-

ing to answer a criminal charge” that engage the protections

of the Speedy Trial Clause. United States v. Marion, 404

U.S. 307, 320 (1971). The dismissal of the charges against

respondent thus makes this case quite different from

Dillingham v. United States, 423 U.S. 64(1975). where the

‘Because this is purely a legal question, we will not take issue with

respondent's statement of facts except to note that we consider some of

respondent's assertions to be misleading.

2

defendant had charges pending against him for 22 months

between his arrest and his indictment, and Klopfer v.

North Carolina, 386 U.S. 213 (1967). where the defendant

had been discharged from custody but the indictment

against him remained outstanding and he could be brought

to trial at any time at the whim of the prosecutor.’

Respondent asserts (Br. in Opp. 11). however. that the

anxiety to which he was subjected because of the govern-

ment’s continuing investigation after the charges were dis-

missed requires the application of the Sixth Amendment.

But this is not materially different from the contention that

was rejected by this Court in Marion, supra, 404 U.S. at

321-322. The Court there explicitly recognized that a

defendant may be prejudiced by investigative delay. but it

held the Sixth Amendment inapplicable in that context

because the situation of such a defendant “does not com-

pare with that of a defendant who has been arrested and

held to answer.” 404 U.S. at 321. Rather, the Fifth Amend-

ment guarantee of due process and statutes of limitations

are the legal protections against investigative delay. 404

U.S. at 322-325.

The unprecedented decision below clearly merits review

by this Court. First, it creates a conflict with several other

courts of appeals, which was recognized by the dissenters on

petition for rehearing en banc (Pet. App. 34a-39a).* More

?Assuming that the preferral of military charges against respondent

triggered the protections of the Sixth Amendment. respondent's situa-

tion prior to the dismissal of those charges can be analogized to that of

the defendant in Dillingham, and accordingly the government has

already noted that the Speedy Trial Clause does apply to the May

1970-October 1970 period when the military charges against respondent

were pending. See Pet. 19-20 nn.1 1-12.

‘The two cases relied on by respondent (Br. in Opp. 13-15) do not

eliminate this conflict. In United States v. Roberts, 548 F. 2d 665 (6th

Cir.). cert. denied, 431 U.S. 920 (1977), the court summarily rejected a

speedy trial claim on the ground that no prejudice had been shown by

the delay between arrest and indictment. | he case thus cannot reasona-

bly be read to hold that pre-indictment delay after the original charges

3

importantly, it is clear that an expeditious resolution of the

question presented in this case is necessary for the sound

administration of the criminal justice system (see Pet. 17-

18). Prosecutors frequently decide to dismiss charges after a

suspect has been arrested in order to await the development

of further evidence or for other legitimate reasons. If the

decision of the court below is correct, and the Speedy Trial

Clause applies to such defendants while the investigation is

continuing, it is important that law enforcement officials be

authoritatively apprised of this rule so that they can prop-

erly allocate their resources.

2. Respondent also contends at length (Br. in Opp. 15-

22) that the pre-indictment delay here violated his right to

due process. As we noted in our petition (Pet. 19-22), we

agree with the dissents and the district court below (Pet.

App. 23a-27a, 45a-46a, 55a) that respondent has not dem-

onstrated either a Fifth Amendment or Sixth Amendment

violation because there is no showing that the period of

delay impaired his defense in any way. Indeed, even the

panel majority, which found a Sixth Amendment violation

because it ruled that the possibility could not be excluded

that delay was the cause of witness Stoeckley’s loss of

memory on the stand (Pet. App. I13a-14a), recognized that

respondent had not shown actual prejudice (id. at Ila). In

addition, respondent has not alleged the sort of fundamen-

tally unfair government conduct, such as seeking a tactical

have been dropped could support a dismissal on speedy trial grounds

an issue that was not mentioned in the opinion. In United States v.

Lara, 520 F. 2d 460, 464 (D.C. Cir. 1975), the court cited a United

States v. Bishton, 463 F. 2d 887 (D.C. Cir. 1972). with approval but

ordered the indictment dismissed because the delay was deliberately

caused by the government to gain an advantage. Cf. United States v.

Lovasco, 431 U.S. 783. 795 (1977): United States v. Marion, supra, 404

U.S. at 324.

4

advantage, that is a prerequisite to a Fifth Amendment

violation. See United States v. Lovasco, 431 U.S. 783, 795

(1977).

The underlying theme of respondent's contention here is

that he is innocent of the crimes charged and that his

innocence is demonstrated by certain statements made by

Helena Stoeckley both before and after trial (see Br. in Opp.

6-7, 17-19, 21-22). Because Stoeckley’s trial testimony did

not exonerate him, respondent contends that the delay

requires that the indictment be dismissed. We disagree with

the premise of this contention. The statements made by

Stoeckley and her possible involvement in the crimes were

fully investigated by the government prior to trial.* In addi-

tion, her recent statements cited by respondent (Br. in Opp,

21 n.*, 38A-40A) have been examined by the government,

and it is the government’s view that they fail to establish a

reasonable doubt about the correctness of the jury’s verdict.

In any case, the “new evidence” in the form of post-trial

statements procured by respondent from Stoeckley has no

place in the consideration by this Court of the petition fora

writ of certiorari. The proper forum for consideration of the

significance of these statements is the district court, in con-

sideration of a new trial motion under Fed. R. Crim. P. 33,

should respondent elect to file one.*

‘Stoeckley’s statements were characterized by Judge Bryan as

“vague, fragmented and contradictory” (Pet. App. 26a). Although she

made statements that indicated her belief that she was present at the

scene of the crime, she also made contemporaneous statements that she

was not present and that she did not know whether she was present or

not. See C.A. App. 1188. 1211, 1228. 1251.

‘Parenthetically, we note that these statements provide additional

evidence from Stoeckley herself undercutting the court of appeals’

suggestion that her failure to testify at respondent's trial as to her

whereabouts at the time of the murders could properly be attributed to

the delay in bringing the case to trial (Br. in Opp. 39A; see also Pet. App.

26a-27a).

5

Respondent also contends (Br. in Opp. 7, 17-19 n.* *, 20

& n.*, 21-22) that the district court erred in refusing to

admit under Fed. R. Evid. 804(b)(3) certain testimony by

third parties concerning statements made to them by

Stoeckley. In our view, the district court acted correctly in

declining to admit these statements; the basis for its conclu-

sion that “corroborating circumstances [did not] clearly

indicate the trustworthiness of the statement[s]” is ex-

plained at Pet. App. 56a-63a. In any event, this issue was

not passed on by the court of appeals and is not before this

Court. Moreover, even if respondent's contention is cor-

rect, the remedy for the asserted error would not be dismis-

sal of the indictment.

For these reasons and the reasons stated in the petition. it

is respectfully submitted that the petition for a writ of

certiorari should be granted.

Wape H. McCree, Jr.

Solicitor General

May 1981

DOJ.-1981-05