Petition — Litton Systems, Inc. v. United States

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| Office ~Suprene Cour, US |

83-1 550 MAR 19 1964

N®, oma ALEXANDER L. STEVAS

CLERK

IN THE

Supreme Court of the United States

October Term, 1983

LITTON SYSTEMS. INC..

Petitioner

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Edmund L. Brunini Bruce W. Kauffman

George P. Hewes, II Counsel of Record

. — a :

Charle s | Adams, Ir. Stephen }. Mathes

BRUNINI, GRANTHAM,

A TREN Jonathan D. Natelson

GROWER & HEWES : Sgr te

1400 First National Bank Bldg Paul S$. Diamond

" a eek ona ane’ WALWORTH, PAXSON, KALISH

Jackson, MS 39205 be KAUFFMAN

2600 The Fidelity Building

Philadelphia, PA 19109

(215) 875-7001

Attorneys for Petitioner

PACKARD PRESS LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

QUESTIONS PRESENTED

1. Whether under the Barker v. Wingo balancing test the

burden shifts to the government to prove absence of defense

prejudice once the defendant has demonstrated (a) deliberate

and unexcused failure to prosecute for over three and one-half

years, and (b) the loss of critical exculpatory evidence during

that period?

2. Whether under the Barker v. Wingo balancing test a de-

fendant seeking to show defense prejudice must prove that but

for the prosecution's delay, he could have proven his innocence

at trial?

3. Whether a judicial forewarning must precede dismissal

under Federal Rule of Criminal Procedure 48(b) despite an ad-

mittedly deliberate failure to prosecute for over three and one-

half years?

4. Whether seven years of “reprehensible” and “intoler-

able” prosecutorial abuse, including the vindictive procurement

of an indictment and the deliberate abandonment of prosecution

for three and one-half years, compels dismissal of the indict-

ment?

QUESTIONS PRESENTED

TABLE OF AUTHORITIES ......

OPINIONS BELOW .......

TABLE OF CONTENTS

SUMMTNCTION ..... oe cc ene

RELEVANT CONSTITUTIONAL AND STATUTORY

rn suk. fights eu, ghee 8 2 ae ae ae

BeAnmmemrn OPT Beem CASE 2. cc ee ees

A. “Reprehensible” Prosecutorial Misconduct: The

Government Vindictively Indicted Litton When

It Refused To Forego The Finality Of A Civil

MEE Wea a wis ern one eae ee deem

B. Unconstitutional And “Intolerable” Prosecutorial

REASONS FOR GRANTING THE WRIT

Delay: The Government Abandoned This Case In

1979 And Then Attempted To Revive It Three

and One-Half Years Later Solely In Response To

Political Pressure ......

THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE A CONFLICT

IN THE CIRCUITS OVER THE MEANING OF

BARKER V. WINGO re

A. The Fifth Circuit's Misinterpretation Of

Barker Creates A Conflict Among the Cir-

cults

B. The Fifth Circuit's Misreading Of Barker Se-

verely Undermines The Presumption Of In-

nocence And Unjustly Alters The Law of

Pretrial Prosecution Discovery of Defend-

ants Evidence And Strategy,

TABLE OF CONTENTS— Continued)

Il. THE FIFTH CIRCUITS TREATMENT OF THE

DISTRICT COURT'S DISMISSAL FOR WANT

OF PROSECUTION UNDER F.R.CRIM.P.

48(b) HAS CREATED A SPLIT IN THE LAW

OF THE CIRCUITS AND HAS ELIMINATED

RULE 48(b) AS A JUDICIAL TOOL FOR THE

EFFECTIVE ADMINISTRATION OF CRIMI-

Se errr a meer ole eager

iil. THE TOTALITY OF CIRCUMSTANCES RE-

QUIRES THAT THIS COURT EXERCISE ITS

SUPERVISORY POWERS TO CURB A CON-

TINUING COURSE OF “REPREHENSIBLE™

AND “INTOLERABLE” PROSECUTORIAL

SE? © srk ea Pees reer ee eaten

CONCLUSION

APPENDIX:

Opinion of the United States Court of Appeals for the

Fifth Circuit dated January 13, 1984

Order of the United States District Court the South-

ern District of Mississippi (Southern Division)

dated December 23, 1982, dismissing the indict-

ment for inexcusable and prejudicial prosecu-

MINN ds a aeew ick ee ieee

Judgment of the United States District Court for the

Southern District of Mississippi dated January 7,

1983 ..

Opinion of United States District Court for the South-

ern District of Mississippi dated March 1, 1983 A-

Opinion of the United States Court of Appeals for the

Fourth Circuit dated April 4, 1978

Page

A-]

TABLE OF CONTENTS—{Continued)

VPage

Judgment of the United States Court of Appeals for

the Fourth Circuit dated April 4, 1978, reversing

the Judgment of the United States District Court

for the Eastern District of Virginia ........ A-46

Order of the United States Court of Appeals for the

Fourth Circuit dated April 27, 1978, denying Pe-

tition for Rehearing .................. A-47

Opinion and Order of the United States District

Court for the Eastern District of Virginia dated

May 25, 1977, dismissing the indictment for

prosecutorial misconduct ............. 4: A-48

Judgment of the United States Court of Appeals for

the Fifth Circuit dated January 13, 1984, revers-

ing the Judgment of the United States District

Court for the Southern District of Mississippi . A-60

Order of the United States Court of Appeals for the

Fifth Circuit dated February 7, 1984, denying

Litton’s Petition for Rehearing and Suggestion

for Rehearing en banc ...............45 A-6]

Letter from the office of the United States Attorney

for the Eastern District of Virginia to the United

States District Court for the Southern District of

Mississippi dated March 12, 1979 .........: A-63

Affidavit of Robert E. Davis, Esquire, dated October

24, 1982, in support of Litton’s Motion to Dis-

miss the Indictment for Inexcusable and Prejudi-

cial Prosecutorial Delay ...............: 4-67

Affidavit of Robert E. Davis, Esquire, dated Novem-

ber 23, 1982, in support of Litton’s Motion to

Dismiss the Indictment for Inexcusable and Prej-

udicial Prosecutorial Delay ........... _A-78

TABLE OF CONTENTS— Continued

Page

Transcript Excerpts from hearing on Litton’s Motion

to Dismiss for Inexcusable and Prejudicial

Prosecutorial Delay held on December 20, 1982,

before the Honorable Adrian Duplantier in the

United States District Court for the Southern

District of Mississippi ................A-80

Affidavit of Edmund L. Brunini, Esquire, dated April

28, 1983, in opposition to government's Motion

for a Second Extension of Time and in support of

Appellees Motion to Dismiss the government's

PS ee baw .. A-84

TABLE OF AUTHORITIES

Cases: Page

Ex parte Altman, 34 F.Supp. 106 (S.D. Cal. 1940) . 17, 18, 20

American Acceptance Corp. v. Glendora Better Builders,

Inc., 550 F.2d 1220 (9th Cir. 1977 25

Arrant v. Wainright, 468 F.2d 677 (5th Cir. 1972 15

Barker v. Wingo, 407 U.S. 514 (1972 10, 11, 12, 22

Boydenkircher v. Hayes, 434 U.S. 357 (1978 5, 24

Boyd v. Adams, 513 F.2d 83 (7th Cir. 1975 25

Brinegar v. United States, 338 U.S. 160 (1949 14

Cheff v. Schnackenberg, 384 U.S. 373 11966 29

Coffin v. United States, 156 U.S. 432 (1895 14

Commonwealth v . Clark, 443 Pa. 318, 279 A.2d 41 (1971 12

Davis cv. United States, 160 U.S. 469 (1895) l4

Dickey v. Florida, 398 U.S. 30 (1970) 12

Dufield v. Perrin, 470 F.Supp. 687 (D.N.H. 1979 12

TABLE OF AUTHORITIES— Continued)

Cases: Page

Eaton v. Holbrook, 671 F.2d 670 (1st Cir. 1982) 25

Elkins v. United States, 364 U.S. 206 (1960) ...... 29

Estelle v. Williams, 425 U.S. 501 (1976) ........... 14

Gaca v. United States, 411 U.S. 618 (1973) ..... 29

Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967) ...... 25

Grunewald v_ United States, 353 U.S. 391 (1957) 29

Jones v. Taber, 648 F.2d 1201 (9th Cir. 1981) ....... 25

MacDonald v. Musick, 425 F.2d 373 (9th Cir. 1970), cert.

oe ey) 25

Marshall v. United States, 360 U.S. 310 (1959)... ... 29

Mathies v. United States, 374 F.2d 312 (D.C. Cir. 1962) — 19

McCarthy v. United States, 394 U.S. 459 (1968)... .. 29

Miles v. United States, 103 U.S. 304 (1881)... 2... 14

Ristaino v. Ross, 424 U.S. 589 (1976) «1... 29

Rosales-Lopez v. United States, 451 U.S. 182 (1981) 29

Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980) 25

State v. Ivory, 278 Or.499, 564 P.2d 1039 (1977) ..... 12

Stuart v. Craven 456 F.2d 913 (9th Cir. 1972) ...... 12

Taylor v. Kentucky, 436 U.S. 478 (1978) ......... 14, 15

United States v. Clay, 481 F.2d 133 (7th Cir. 1973) .. 19, 21

United States v. Correia, 531 F.2d 1095 (1st Cir. 1976) 17, 19

United States v. Crow Dog, 532 F.2d 1182 (8th Cir. 1976)

United States v. DeLeo, 422 F.2d 487 (1st Cir.), cert. den.

RE Ee

United States v. DiDiego, 511 F.2d 818 (D.C. 1975)

United States v. Dowl, 394 F.Supp, 1250 (D. Minn. 1975) 12, 19

TABLE OF AUTHORITIES— Continued)

Cases: Page

United States v. Dreyer, 533 F.2d 112 (3d Cir. 1976) 12, 18, 19

United States v. Fay, 505 F.2d 1037 (1st Cir. 1974) .. 11, 16

United States v. Gouveia, 704 F.2d 1116 (9th Cir. 1983) 12

United States v. Hale, 422 U.S. 171 (1975) ..... —

United States v. Hogan, 712 F.2d 757 (2d Cir. 1983) .. 29

United States v. Judge, 425 F.Supp. 499 (D. Mass. 1976) 12

United States v. Kitzman, 520 F.2d 1400 (8th Cir. 1975) 17

United States v. Kleinbard, 333 F.Supp. 699 (E.D.Pa.

SE scone ao cals ea am Aare a ea ea aa nee 12, 19

United States v. Lane, 561 F.2d 1075 (2d Cir. 1977) .. 17, 18

United States v. Lee, 413 F.2d 910 (7th Cir.), cert. denied.

396 U.S. 1022 (1969) har ey ee eae. |

United States v. Litton Systems, Inc., 573 F.2d 195 (4th

Cir.), cert. denied, 439 U.S. 828 (1978) ..... er,

United States v. Litton Systems, Inc., 557 F.Supp. 568

ME EE Tn ata a cata ae aoa erat ave et aen 6

United States v. Litton Systems, Inc., 722 F.2d 264 (5th

Si ED re ois ocak cae cee ad Sater eevee ea eee 5

United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) 20

United States v. MacDonald, 435 U.S. 850 (1978) .... 16

United States v. Macino, 486 F.2d 750 (7th Cir. 1973) 11, 16

United States vt. Mann, 291 F.Supp. 268 (S.D.N.-Y.

1968) .. ee ere errr oer ae Raman SS

United States v. Mark II Electronics of Louisiana Inc., 305

F.Supp. IZ00(E.D. La. 19GB) .... 1. ee ee 19

United States v. McConahy, 505 F.2d 770 (7th Cir. 1974) 12

United States v. McKee, 332 F.Supp. 823 (D. Wyo. 1971) 12

TABLE OF AUTHORITIES— Continued )

Cases: Page

United States v. Moore, 653 F.2d 384 (9th Cir.), cert. de-

nied, 464 U.S. 1008 (1081) 2... ww ee cc es 17

United States t. New Buffalo Amusement Corp., 600 F.2d

wee teeta TR ok ch kn ele eee. iscaelae

United States v. Novelli, 544 F.2d 800 (5th Cir. 1977 19

United States v. Palmer, 502 F.2d 1233 (5th Cir.) rev. on

other grounds, 423 U.S. 64 (1974) 2.0.0... 17

United States v. Perry, 353 F.Supp. 1235(D.C.D.C. 1973) 12

United States v. Price, 373 F.Supp. 825 (W.D. Mo. 1974) 19

United States v. Quillen, 468 F.Supp. 480 (E.D. Tenn.)

aff d 588 F.2d 831 (6th Cir. 1978) ........ i

United States v. Rowbotham, 430 F.Supp. 1254 (D. Mass.

tt ee PUPIL rarer reript A ates las 19

United States v. Rucker, 464 F.2d 823 (D.C. Cir. 1972) 12

United States v. Scott, 518 F.2d 261 (6th Cir. 1975) .. 17, 19

United States v. Seafarers Int. Union, 343 F.Supp. 779

(ON AG Me reesei je

United States v. Serubo, 604 F.2d 807 (3d Cir. 1979) .. 29

United States v. Simmons, 536 F.2d 827 (9th Cir. 1976) 19. 20

United States v. Starr, 434 F.Supp. 214 (D.D.C. 1977) 12

United States v. Stoker, 522 F.2d 576 (10th Cir. 1975) . 19

Wardius v. Oregon, 412 U.S. 470 (1973)... 2.200... 15

Williams v. Florida, 399 U.S. 78 (1970) .......0.... 15

In re Winship, 397 U.S. 358 (1970) .............. 14

Yates v. United States, 356 U.S. 363 (1958) ........ 29

Vili

TABLE OF AUTHORITIES— Continued

Constitutional Amendments, Statutes, and Rules

U.S. Const. Amend. V

U.S. Const. Amend. VI

IS U.S.C. $287 (1948)

28 U.S.C. §1254(1) (1948

25 U.S.C. §2106 (1945)

Fed. R. Crim. P. 48(b

Other Authorities

American Bar Association, Code of Professtonal Responsi

bility

DR 7-105\a

EC 7-2

Blumenson, “Constitutional Limitations on Prosecutorial

Discovery,” 18 Harvard Civil Rights-Civil Liberties

Law Review 123 (1983

Comment, “Constitutional Right to A Speedy Trial: The

Elements of Prejudice and the Burden of Proof,” 44

Temple Law Quarterly 310 (1971)

Godbold, “Speedy Trial Major Surgery For A National

ll,” 24 Alabama Law Review 265 (1972

Louisell, “Criminal Discovery And Self Incrimination

Roger Traynor Confronts The Dilemma,” 53 Califor

nia Law Review 89 (1965

Note, “Governments Use of Criminal Investigation and In

dictment to Induce Reconsideration of Adverse Civil

Administrative Decisions,” 15 Wake Forest Law Re

view 271 (1979)

Note, “The Right To A Speedy Trial,” 20 Stanford Law Re

view 476 (1965)

Note, “The Speedy Trial Guarantee: Criteria And Confu-

sion in Interpreting Its Violation, 22 DePaul Law Re-

view 839 (1973)

Page

“~lto tw W W tv

_—

TABLE OF AUTHORITIES— Continued)

Other Authorities: Page

Note, “Speedy Trial Schemes And Criminal Justice De-

lay,” 57 Cornell Law Review 794 (1972) 5 ea

Smaltz, “Due Process Limitations on Prosecutorial Discre-

tion in Re-Charging Defendants: Pearce To Blackledge

To Bordenkircher,” 36 Washington and Lee Law Re-

view 347 (1979) 25

Uviler, “BARKER v. WINGO: Speedy Trial Gets a Fast

Shuffle,” 72 Columbia Law Review 1376 (1972) 14

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

LITTON SYSTEMS, INC.,

Petitioner

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Litton Systems, Inc. (“Litton’),' respectfully

prays that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Fifth Circuit entered

in this matter on January 13, 1984.

OPINIONS BELOW

The May 25, 1977 memorandum Opinion and Order of the

United States District Court for the Eastern District of Virginia,

Honorable Albert V. Bryan, Jr., dismissing the indictment in

this case on the ground of prosecutorial misconduct, is not re-

ported and appears in the appendix at A-48. The April 4, 197

Opinion and Judgment of the United States Court of Appeals for

the Fourth Circuit vacating Judge Bryan's Order are reported at

573 F.2d 195, cert. denied, 439 U.S. $18 (1978), and appear in

the appendix at A-34.

lL. Petitioner, Litton Systems, Ine. d/bia Ingalls Nuclear Shipbuilding

Division, is a wholly-owned subsidiary of Litton Industries. Inc

The December 23, 1982 Order of the United States District

Court for the Southern District of Mississippi, Honorable

Adrian G. Duplantier, dismissing this indictment for a second

time on the grounds of unconstitutional and “intolerable”

prosecutorial delay is not reported and appears in the appendix

at A-15. The January 7, 1983 Judgment in favor of Litton dis-

missing the indictment is not reported and appears in the ap-

pendix at A-16. Judge Duplantier’s March 1, 1983 Opinion is re-

ported at 557 F. Supp. 568 and appears in the appendix at A-17.

The January 13, 1984 Opinion of the United States Court of Ap-

peals for the Fifth Circuit vacating Judge Duplantier's Order is

reported at 722 F.2d 264 and appears in the appendix at A-l.

The January 13, 1984 Judgment of the United States Court of

Appeals for the Fifth Circuit is not reported and appears at A-60.

The February 7, 1984 per curiam Order of the United States

Court of Appeals for the Fifth Circuit denying Litton’s Petition

for Rehearing and Suggestion for Rehearing En Banc is not re-

ported and appears in the appendix at A-61.

JURISDICTION

The judgment of the United States Court of Appeals for the

Fifth Circuit was entered on January 13, 1984. Litton’s timely

Petition for Rehearing and Suggestion for Rehearing En Banc

were denied on February 7, 1984, and this Petition was filed

within sixty days of that date. The statutory provision which con-

fers jurisdiction on this Court to review the judgment of the

Court of Appeals by Writ of Certiorari is 28 U.S.C. §1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fifth Amendment to the Constitution of the United

States provides, in pertinent part, as follows:

‘No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in time

of War or public danger; nor shall any person . . . be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.”

The Sixth Amendment to the Constitution of the United

States provides, in pertinent part, as follows:

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial. . . .”

Section 287 of Title 18, United States Code, provides as fol-

lows:

“Whoever makes or presents to any person or officer in the

civil, military, or naval service of the United States, or to

any department or agency thereof, any claim upon or

against the United States, or any department or agency

thereof, knowing such claim to be false, fictitious or fraudu-

lent, shall be fined not more than $10,000 or imprisoned

not more than five vears, or both.”

Rule 48(b) of the Federal Rules of Criminal Procedure pro-

vides, in pertinent part, as follows:

“{I]f there is unnecessary delay in bringing a defendant to

trial, the Court may dismiss the indictment. . . .”

STATEMENT OF THE CASE

The “reprehensible” and “intolerable” prosecutorial abuses

in this seven-year old criminal case have compelled two differ-

ent United States District Courts — the Eastern District of Vir-

ginia and the Southern District of Mississippi — twice to impose

the unusual and extreme sanction of dismissal.’

2. In Virginia, Judge Brvan described as “reprehensible” the govern-

ments ‘threat to use, as well as the actual use of, the grand jury as a bargaining

tool in an effort to upset the final civil award [against the Navy} to which Litton

was entitled.” (A-53

Following remand by the Fourth Circuit and transfer to Mississippi,

Judge Duplantier described as “intolerable” the government's subsequent

abandonment of the case and belated attempt to revive it in response to politi-

cal pressure after three and one-half vears of deliberate failure to prosecute

(\A-33

A. “Reprehensible” Prosecutorial Misconduct: The Gov-

ernment Vindictively Indicted Litton When It Refused

To Forego The Finality Of A Civil Award.

Litton was indicted in the Eastern District of Virginia on

April 6, 1977 for filing, in 1970, an allegedly false claim against

the Navy in violation of 18 U.S.C. §287. Shortly thereafter, the

indictment was dismissed by The Honorable Albert V. Bryan,

Jr., sitting in the Eastern District of Virginia, for “deliberate and

disingenuous” prosecutorial misconduct. (A-57). The record be-

fore Judge Bryan revealed the following facts:

In April, 1976, Litton had prevailed before the Armed Ser-

vices Board of Contract Appeals (“ASBCA”) in a civil dispute

with the Navy relating to the construction, beginning in 1968, of

three nuclear submarines. (A-49.) While litigating the civil case,

the Navy persuaded the government to commence a grand jury

investigation of Litton’s claim. Evidence was presented before

three grand juries without any indictment being returned.°

In September, 1976, shortly before the third (special) grand

jury's eighteen month term expired, although the prosecutors

admitted that tliey had no evidence of criminal intent, they nev-

ertheless threatened to indict Litton unless it would agree to re-

open the final $17 million ASBCA civil award. (A-54-55.)*

When Litton rejected this extortionate demand, the pros-

ecutors retaliated by presenting incomplete and inaccurate sum-

maries of the prior grand jury evidence to yet a fourth grand

jury, which finally did return a one count indictment against the

corporation only. As Judge Bryan noted:

3. The third grand jury, which did not indict, had been specially

impanelled for the sole purpose of investigating Litton

4. In rejecting the prosecutors’ efforts to justify this action as analogous to

a Pretrial Diversion Program, Judge Bryan succinctly observed

“The Pretrial Diversion Program is a judicially sanctioned plan designed

for rehabilitation of persons who admit their guilt, without formal charges

being brought. Here, not only at a time when the defendant was protest-

ing its innocence, but at a time when the government, according to its

brief, had no evidence of criminal intent, the investigating grand jury was

used as a bargaining tool to effect a reopening of the matter before the

ASBCA .” (A-54-55, emphasis added. )

“The appearance and summation testimony before the

grand jury of the two [FBI] agents is relevant . . . to the

issue of the misconduct of the United States Attorney's Of-

fice. One need not be a skeptic to question the impartiality

of a presentation which persuaded a grand jury that neither

had heard nor seen the previous witnesses or documents to

do within ten days what the prior grand jury had not seen fit

to do after twenty-five days of evidentiary hearing over an

eighteen month period. This is further evidence of the cyni-

cal view that has been taken of the grand jury in this case,

namely, as a mere echo of the office of the United States

Attorney.” (A-55-56. )

Thus, Judge Bryan found that the prosecutors’ “reprehensible”

conduct required dismissal of the indictment:

“No matter how benign a view of the matter is urged

by the government, the truth is that the government

wanted a ‘second bite at the apple’ in its controversy with

Litton over the issue of reimbursement; that it used the im-

plied threat of indictment in an effort to obtain reconsider-

ation of what Litton, presumptively innocent, was other-

wise entitled to; and that when Litton, as was its right,

refused to forego that entitlement, namely, the finality of

the civil award, the government retaliated — made good its

threat — by producing an indictment. This is a serious

abuse of prosecutorial power.” (A-53; emphasis added. )

Relying solely on its misinterpretation of this Court's opin-

ion in Bordenkircher v. Hayes, 434 U.S. 357 (1978), the United

States Court of Appeals for the Fourth Circuit concluded that

the government's use of the threat of indictment to obtain an ad-

vantage in its civil dispute with Litton was “permissible plea

bargaining’ — even though no plea ever had been considered in

the case and even though the so-called “piea bargaining’ oc-

curred when the prosecutors admittedly had no evidence of

criminal intent. United States v. Litton Systems, Inc., 573 F.2d

195 (4th Cir.) cert. denied, 439 U.S. 828 (1978).° Following re-

5. Several commentators have severely criticized the Fourth Circuit's

Opinion. See Part TEL, infra

mand to the Eastern District of Virginia in December, 1975, the

case was transferred to the Southern District of Mississippi

where the submarines had been built.

B. Unconstitutional and “Intolerable” Prosecutorial De-

lay: The Government Abandoned This Case In 1979

And Then Attempted To Revive It Three And

One-Half Years Later Solely In Response To Political

Pressure.

In early 1979, shortly after transfer to the Southern District

of Mississippi, the government abandoned this prosecution.

After three and one-half vears of deliberate failure to take a sin-

gle step, however, the government attempted to reverse its

course and, without warning or explanation, moved on Septem-

ber 22, 1982. to set a trial date. On Litton’s motion, the indict-

ment was again dismissed, this time by Judge Adrian G.

Duplantier of the Eastern District of Louisiana, sitting by desig-

nation in the Southern District of Mississippi, for inexcusable

and prejudicial delay. United States v. Litton Systems, Inc., 557

F Supp. 565 (S.D. Miss. 1953

At the hearing on Litton’s Motion, the Government con-

ceded that it had disbanded its trial team and had deliberately

failed to take a single prosecutorial action for more than 3'/

years. (A-23.)° Significantly, during a brief period of negotiations

to settle both the criminal and civil aspects of this controversy,

the government drafted a proposed settlement document con-

ceding, more than four years ago, that the evidence upon which

a criminal fact finder would have to base ultimate conclusions

had become “stale.” (A-72

The record further revealed that in January and February of

1952, Admiral Hyman Rickover and Senator William Proxmire

had written letters to Attorney General William French Smith

6 Judge Duplantier noted the government's admission that “in fact no

action was taken because the prosecution was satished with the status quo and

with not proceeding to trial.” A-23

The Government s written admission in this regard was accurate, since

the facts underlving this twice-dismissed in lictment date back to 1965, and the

allegedly ialse claim itself was filed in November. 1970

demanding to know, inter alia, why the Litton prosecution had

been dropped. According to the government's own affidavit, the

decision to “reassemble” a trial team was made shortly after

these letters were received by the Department of Justice.

(A-23. )

In contrast to the government's deliberate failure to pro-

ceed, Litton had actively prepared its trial defense. A govern-

ment document in the record confirmed that in January, 1979,

at the first status conference following transfer, Litton joined

with the Government in requesting a trial date. (A-63.) In Janu-

ary, 1980, during the brief settlement negotiations, Litton noti-

fied the Government that its trial preparation was complete.

Thereafter, Litton also notified the government that any agree-

ment to suspend the criminal proceedings during the five weeks

of unsuccessful settlement negotiations was terminated. (A-26. )

It was undisputed that four defense witnesses died during

the period of abandonment — David Adams (died in May,

1980), Keistutis Verseckis (September, 1980), J. Marshall Dick-

ens January, 1981), and Curtis Scott (March, 1981). (A-73-75.)”

In addition, despite a court order requiring production of docu-

ments, a large number of exculpatory documents had been lost

or destroyed by the Government.”

S David Adams, who the government admits would have been a ‘kev’

witness, prepared the manpower charts which the government contends form

the heart of the alleged fraud, and would have testified that they were pre-

pared in good faith. In preparing for trial, Adams described to one of Litton’s

counsel (1) the manner in which he worked on the manpower charts, (2) his

belief that the charts were prepared accurately, and (3) his knowledge that

there had been no intent to defraud the government. Keistutis Verseckis was

an accountant who had prepared critical escalatior. calculations in the allegedly

false claim and thus would have offered important testimony regarding its fair-

ness and accuracy. Curtis Scott, Ingalls hull foreman, and J. Marshall Dick-

ens, a contract administrator, would have offered testimony concerning the

government's disruption of Litton’s construction schedule and would have con-

tradicted the government's contentions regarding Litton’s initial capability of

performing the contract. |A-73-75, A-75-79Y. |

9. Among this lost evidence were 55 boxes of documents which Litton

produced to the Navy during an audit of the allegedly false claim. These docu-

ments would have demonstrated that the Navy was fully informed of all rel-

evant facts regarding Litton’s claim, thereby refuting the prosecution's allega-

tion that the claim was intentionally falsified. (A-75-77

In view of the virtually undisputed factual record and the

government's clear admissions at the hearing, Judge Duplantier

concluded, inter alia:

(1) The government had abandoned this prosecution and

belatedly attempted to resurrect it only in response to political

pressure.

(2) Litton reasonably had concluded that the case had been

abandoned by the government:

“As far as Litton knew, or any other reasonable defendant

would have believed, the case had been abandoned by the

United States. Certainly the record supports the conclusion

that the government had abandoned the prosecution and

decided to resurrect it shortly before the motion to set a

trial date... .

The government's decision to reassemble its trial team was

not made until May 24, 1982, and not announced until Sep-

tember 22, 1982, when the motion to set for trial was filed.

There is strong evidence that the May 24th decision was

made only after pressure upon the Justice Department

from prominent political figures.” (A-23; emphasis added. )

3) Under the circumstances, Litton had sufficiently as-

serted its speedy trial right:

“Under the unusual circumstances of this case, Litton’s

conduct was sufficient to constitute its assertion of its Sixth

Amendment speedy trial right

Certainly, it was reasonable for Litton to have con-

cluded that the indictment was not being pursued. Under

the circumstances, Litton should not be charged with the

responsibility of taking any further action to bring the crim-

inal charge against it to trial.” (A-26-27

4) Litton had been irreparably prejudiced by the govern-

ments deliberate decision not to proceed: “Litton has demon-

strated ‘actual prejudice to the conduct of the defense.’ ” (A-29.

5) “The length of delay and the reasons therefor are, at the

least. intolerable, if not unconstitutional.” (A-33

Accordingly, the District Court dismissed the indictment

for violation of Litton’s constitutional speedy trial right and for

want of prosecution under Rule 48(b) of the Federal Rules of

Criminal Procedure.

The United States Court of Appeals for the Fifth Circuit re-

versed, reinstating the 1977 indictment for a second time. Al-

though Litton’s Motion to Dismiss had specifically limited its

scope to the three and one-half year period of admittedly delib-

erate failure to prosecute, from March, 1979, to September,

1982, the Fifth Circuit's Opinion inexplicably dwelled almost

exclusively upon the period from the indictment in April, 1977

to early 1979, a period of delay recognized by all to be excus-

able.

Further, although the government conceded that the three

and one-half year delay was “presumptively prejudicial,” the

Fifth Circuit summarily decided that prejudice was “minimal.”

(A-11.) The Opinion ignored the undisputed «record fact that

four defense witnesses had died during the period of abandon-

ment, erroneously stating that only one, David Adams, was alive

as of January, 1980. (A-12.)'° With respect to the loss of Adams.

whose significance as a “key witness’ was conceded by the gov-

ernment, the Fifth Circuit brushed aside defense impairment

with the speculative conclusion that his exculpatory testimony as

a defense witness could have been “impeached” with his grand

jury testimony. (A-12.) Thus, usurping the factfinder’s role, the

Fifth Circuit held that it could assess credibility — a jury deter-

mination — to rebut a claim of prejudice caused by the death of

a key defense witness

10. Also ignored by the Fifth Circuit was the death, in March, 1983, of

Robert E. Davis, Esquire, Ingalls’ Deputy General Counsel. During Litton’s

trial preparation, David Adams made exculpatory statements to Mr. Davis

which were described in an affidavit made part of the record before Judge

Duplantier. (See footnote 5, supra.) Moreover, Davis was the only representa-

tive of Litton with a continuous, uninterrupted participation in and knowledge

of this matter since 1965 | A-55-56

11. This “impeachment” determination was totally without record sup-

port. First, Adams grand jury transcripts were not part of the record before

the Fifth Circuit. Second, Adams lost exculpatory testimony had nothing to do

(continued next page

While recognizing that Litton had been deprived of helpful

testimony, the Fifth Circuit found an absence of prejudice be-

cause it concluded that the lost testimony would not necessarily

have constituted a successful defense. Thus, in derogation of this

Court's explicit direction in Barker v. Wingo, 407 U.S. 514

(1972), the Court below gravely misjudged the actual prejudice

inflicted upon Litton’s defense by the death of four exculpatory

witnesses. With respect to the documents lost or destroyed by

the government, the Fifth Circuit paradoxically cited the district

judge's conclusion that “compelling Litton to stand trial without

these lost documents is not as clearly prejudicial as is the ab-

sence of the deceased witness, Adams.” (A 11-12.)

Finally, the Fifth Circuit summarily reversed Judge

Duplantier’s discretionary dismissal under Rule 48(b), holding

that even after three and one-half years of admittedly deliberate

failure to prosecute, “forewarning” of dismissal was required.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT A WRIT OF CERTIO-

RARI TO RESOLVE A CONFLICT IN THE CIRCUITS

OVER THE MEANING OF BARKER V. WINGO.

The Fifth Circuit's reversal compels this Court to clarify the

Barker v. Wingo balancing test.'? The Circuits now disagree

sharply as to the quantum and burden of proof necessary to

NOTE— Continued

with his grand jury testimony. Moreover, the Fifth Circuit entirely inored the

crucial aspect of preyudice betore Judge Duplantier In the district court. the

government did not suggest that Adams ‘xculpatory testimony could have

been “impeached, but rather insisted that his testimony was “preserved” by

the grand jury transeripts. In rejecting this response, Judge Duplantier wrote

Not surprisingly, detendant is not comforted by that explanation The

fact that such testimony, elicited without cross-examination, without re-

presentation by counsel, and without regard for the rules of evidence.

may be admitted at trial compounds the problem of potential prejudice

4-30

12. Barker Wingo, 407 US. 514, 530 (1972), held that four factors must

be weighed in determining a speedy trial claim. (1) length of delay. (2) reasons

for delay. 3) assertion of the right. and (4) prejudice to the defense caused by

the delay

demonstrate defense prejudice resulting from deliberate

prosecutorial delay. A defendant seeking pre-trial dismissal in

the Fifth Circuit must now establish that but for the govern-

ment’s delay, he could have proven his innocence at trial. Not

only is this contradicted by the language of Barker itself, it con-

flicts with the constitutional presumption of innocence accorded

every defendant. '’

A. The Fifth Circuit's Misinterpretation Of Barker

Creates A Conflict Among The Circuits

Mindful of this Court’s pronouncement in Barker v. Wingo

— “If witnosses die or disappear during a delay, the prejudice is

obvious, 407 U.S. at 532 — other Circuits have correctly held

that under Barker the death of a defense witness during a period

of prosecutorial delay constitutes defense prejudice, which, at

the very least, shifts to the government the burden of proving

the absence of prejudice

For instance, in United States v. Macino, 486 F.2d 750 (7th

Cir. 1973), the Seventh Circuit discharged two defendants on

speedy trial grounds, holding that they had been prejudiced by

the death of their co-defendant

“With respect to actual prejudice to the appellants’

ability to defend themselves, the record discloses that one

evewitness to the crime, a former co-defendant, died be-

fore the case was eventually brought to trial. While it is

true, as the Government argues, that the record does not

indicate whether the testimony would have been helpful,

or even available, to the appellant, we cannot gainsay that it

would have been. Certainly the death of a witness with

firsthand knowledge of the events in issue creates the

strong possibility of prejudice to a defendant.”

486 F.2d at 754. Likewise, the First Circuit, in United States v.

Fay, 505 F.2d 1037. 1040 (1st Cir. 1974) discharged a defendant

13. It also would compel every defendant seeking vindication of speedy

trial rights before trial to afford the prosecution unparalleled discovery of ans

anticipated trial defense

on speedy trial grounds because of the death or disappearance of

an arguably helpful defense witness:

“If, after an over long and unjustified passage of time, a

known witness, as to whom there exists substantial reason

to believe that he would have given specific and relevant

testimony, is not available, through no connivance of the

defendant, it seems to us that the disadvantage must fall to

the government, which has the primary burden of expedi-

tion

Macino and Fay are not isolated holdings, but represent the

well-settled doctrine by which federal courts show their strong

disapproval of forcing defendants to trial once relevant evidence

is no longer available because of prosecution delay.'* Indeed,

this Court in Barker explicitly adopted the most compelling of

these decisions:

“For an example of how the speedy trial issue should

be approached, see Judge Frankel’s excellent opinion in

United States v. Mann, 291 F.Supp. 268 (S.D.N.Y. 1968).”

Barker v. Wingo at 533 n.36. In Mann, Judge Frankel dismissed

an indictment before trial, ruling that the death of an arguably

relevant witness — one Charles Simmons, Sr. — combined with

14. Accord, Dickey v. Florida, 398 U.S. 30 (1970), United States v. Neu

Buffalo Amusement Corp., 600 F.2d 368, 379 (2d Cir. 1979), United States t

McConahy, 505 F.2d 770, 772 (7th Cir. 1974), Stuart ve. Craven, 456 F.2d 913

916 (9th Cir. 1972). See United States v. Gouveia, 704 F.2d 1116, 1127 (9th

Cir. 1983) (en banc). (Court analogizes to Barker four-prong test and holds that

government must rebut presumed prejudice to defense caused by tardy ap-

pointment of counsel during preindictment delay), United States v. Dreyer,

533 F.2d 112, 115 (3d Cir. 1976) (Court recognizes that the death of defense

witnesses during government's pretrial delay is prejudicial), United States +

Rucker, 464 F.2d $23, $26 (D.C. Cir. 1972) (‘Seemingly overwhelming evi-

dence of guilt can on occasion result from impairment of the defense capacity

by reason of delay.”) See also Dufield v. Perrin, 470 F.Supp. 687, 691-92

(D.N.H. 1979), United States v. Starr, 434 F.Supp. 214(D. D.C. 1977), United

States v. Judge, 425 F.Supp. 499, 504 (D. Mass. 1976), United States v. Dowl,

394 F.Supp. 1250, 1256-57 (D. Minn. 1975), United States v. Perry, 353

F Supp. 1235, (D.C. D.C. 1973), United States v. Kleinbard, 333 F.Supp. 699,

701-02 (E.D. Pa. 1971), United States v. McKee, 332 F Supp. 823, 826 (D

Wyo. 1971), State v. Ivory, 278 Or. 499, 564 P.2d 1039 (1977), Commonwealth

v. Clark, 443 Pa. 318, 279 A.2d 41 (1971)

lengthy prosecution delay, had prejudiced the defendant and

thus violated the Sixth Amendment:

“To summarize, then, on the question of whether the

delay has hurt the defense, this is not a point to be resolved

with mathematical certainty. What is clear, however, apart

from the weighty presumption of prejudice where the delay

is as long as it has been in this case, is that defendant's spe-

cific claims of prejudice are substantial. The quarrel about

the degree and kind of damage from the death of Simmons,

Sr., is incapable of satisfactory resolution by weighing the

competing offers of hearsay. But we can know that the

search for truth has been severely hampered and that, on

this and other aspects, defendant has demonstrated ‘the

likelihood, or at least the reasonable possibility that [he!

has been prejudiced by the delay’. [Citation omitted].”

United States v. Mann, supra, 291 F.Supp. at 273. (Emphasis

added. )

The Fifth Circuit's unreasoned rejection of this compelling

rationale is especially unjust because — unlike the defense wit-

nesses in Fay or Macino or Mann — the dead witnesses in this

case unquestionably would have supplied vital exculpatory testi-

mony. Recognizing this, Judge Duplantier dismissed under

Barker because the government admittedly failed even re-

motely to disprove the resulting prejudice to Litton. (A 29.) The

Fifth Circuit was obligated under Barker to impose this same

burden upon the government. Its failure to do so not only con-

flicts with Barker and decisions in several circuits, it severely

distorts the search for truth and justice in this case.'°

15. Consmentators have explicitly recognized this division regarding bur-

den and quantum of proof of prejudice under Barker

The Supreme Court has not yet ruled on who has this burden and the

lower court cases appear to be divided into three categories as to burden

of proof (1) The accused must make a showing of prejudice which is

dispositive of the issue of prejudice, (2) prejudice is presumed from long

delay and such presumption is dispositive of the issue of prejudice, and (3)

prejudice must either be shown by the accused or presumed from long

delay, but in either case the government may overcome such proof or pre-

sumption by showing either that the delay was the result of a valid police

continued next page

B. The Fifth Circuit's Misreading Of Barker Severely Un-

dermines The Presumption Of Innocence And Unjustly

Alters The Law Of Pre-Trial Prosecution Discovery Of

A Defendant's Evidence And Strategy

The Fifth Circuit's decision has significant due process im-

plications: 1) it severely undermines the fundamental presump-

tion of innocence accorded to every defendant; and 2) it unjustly

and unnecessarily alters the law of pre-trial discovery.

This Court has repeatedly held that the presumption of in-

nocence is the very cornerstone of due process:

“The principle that there is a presumption of inno-

cence in favor of the accused is the undoubted law, axiom-

atic and elementary, and its enforcement lies at the founda-

tion of the administration of our criminal laws.’ Coffin v.

United States, 156 U.S. 432, 453, 15 $.Ct. 394, 39 L.Ed.

451 (1895).”

Taylor v. Kentucky, 436 U.S. 478, 483 (1978).'° This means a

great deal more than simply placing the burden of proof upon

the government in every prosecution:

“It is now generally recognized that the ‘presumption

of innocence’ is an inaccurate shorthand description of the

right of the accused to ‘remain inactive and secure, until the

prosecution has taken up its burden and produced evidence

and effected persuasion...”

NOTE— Continued

purpose or that the accused suffered no serious prejudice other than that

resulting from ordinary and inevitable delay.”

Note, “The Speedy Trial Guarantee: Criteria And Confusion In Interpreting

Its Violation,” 22 DePaul Law Review $39, 855-56 (1973). Accord. Uviler,

“BARKER V. WINGO: Speedy Trial Gets A Fast Shuffle,” 72 Columbia Law

Review 1376, 1393-95 (1972), Godbold, “Speedy Trial — Major Surgery For A

National Ill," 24 Alabama Law Review 265, 282-85 (1972). See Note, “Speedy

Trial Schemes And Criminal Justice Delay,” 57 Cornell Law Review 794,

813-14 (1972), Comment, “Constitutional Right To A Speedy Trial: The Ele-

ments Of Prejudice And the Burden Of Proof,” 44 Temple Law Quarterly 310,

315-18 (1971); Note, “The Right To A Speedy Trial,” 20 Stanford Law Review

476, 498 (1968).

16. Accord, Estelle v. Williams, 425 U.S. 501 (1976), In re Winship, 397

U.S. 358 (1970). Cf., Brinegar v. United States, 338 U.S. 160 (194¥); Davis v

United States, 160 U.S. 469 (1895), Miles v. United States, 103 U.S. 304 (1881)

Taylor v. Kentucky, supra, 436 U.S. at 483 n.12.

Likewise, this Court has recognized the principle that the

governments right to pre-trial discovery of the defense in a

criminal prosecution is restricted to reciprocal notice of alibi and

rebuttal witnesses or similarly limited reciprocal arrangements:

“[Wle do hold that in the absence of a strong showing of

state interest to the contrary, discovery must be a two-way

street. The State may not insist that trials be run as a ‘search

for truth so far as defense witnesses are concerned, while

maintaining ‘poker game’ secrecy for their own witnesses.

It is fundamentally unfair to require a defendant to divulge

the details of his own case while at the same time subjecting

him to the hazard of surprise concerning refutation of the

very pieces of evidence which he disclosed to the state.”

Wardius v. Oregon, 412 U.S. 470, 475-76 (1973). Accord, Wil-

liams v. Florida, 399 U.S. 78 (1970). See, Blumenson, “Consti-

tutional Limitations On Prosecutorial Discovery,” 18 Harvard

Civil Rights. Civil Liberties Law Review 123 (1983); Louisell,

“Criminal Discovery and Self Incrimination: Roger Traynor

Confronts the Dilemma,” 53 California Law Review 89 (1965).

The Fifth Circuit's misreading of Barker below has radicalls

altered these virtually axiomatic principles.

It cannot reasonably be disputed that the deaths of critical

witnesses impaired Litton’s defense. Indeed, the record plainly

shows that their testimony would have directly refuted the heart

of the government's case. (A 73-75; A 78-79.) The Fifth Circuit

nonetheless substituted itself for the jury and held that under

Barker this was not prejudicial because these witnesses either

were not sufficiently helpful or might have been “impeached. "''

17. The Fifth Circuit thereby repudiated its own precedent, squarely re

jecting this kind of appellate fact finding in Arrant vt. Wainwright, 468 F.2d

677 (5th Cir. 1972)

“The state asserts that appellant was not prejudiced by the deprivation of

this witness at trial. First, the state claims that it could have impeached

[the witness's} testimony through the use of her inconsistent statements

This is definitely not a matter within the state's power to unilaterally de-

cide

(continued next page

In other words, the Fifth Circuit found an absence of prejudice

not because it disputed that Litton was deuied helpful testi-

mony, but because it concluded that the lost testimony would

not necessarily have constituted a successful defense. Compare,

United States v. Macino, supra, United States v. Fay, supra.

Thus, in the Fifth Circuit's view, Barker requires a defend-

ant alleging prejudice to prove to the trial court, before the first

prosecution w1tness has been called, that he had a successful de-

fense that was destroyed by the government's delay. This aston-

ishing misreading of Barker makes mutually exclusive a defen-

dant’s right to a speedy trial and his right to b. accorded the

presumption of innocence. Should he seek vindication of his

speedy trial rights before trial, he can no longer exercise his

right “to remain inactive and secure until the prosecution has

taken up its burden.” Rather, he must prove his innocence to a

judicial fact-finder.

This Hobson's Choice — abandonment either of the pre-

sumption of innocence or the right to a speedy trial — is even

more inequitable because it forces a defendant who exercises his

speedy trial rights to give up his right not to disclose fully his

trial defense until the prosecution rests.

This Court has held that “an accused who does successfully

establish a speedy trial claim before trial will not be tried.”

United States v. MacDonald, 435 U.S. 850, 861 n.8 (1978). The

Fifth Circuit's holding has made pre-trial vindication of speedy

trial rights a virtual impossibility.

NOTE— Continued}

“It is appalling to this court for the state to claim that its action which

ultimately led to the witness not testifving was harmless since [the state}

could have impeached her. Impeachment is a quite tricky exercise. Under

our system of criminal justice, the ultimate question of credibility is for

the jury. Perhaps [the witness) could have satisfactorily explained the

inconsistencies {if any] to the jurv’s satisfaction. Due to the actions of the

state, the jury was not given the opportunity to pass on these credibilits

matters We shall not sanction unilateral state action which, in sub-

stance, deprives the jury of its right to determine credibility by finding

that the deprivation of |the witness's) testimony was harmless due to a

claim of impeaching evidence ”

465 F.2d at 683. (Emphasis added

Ul. THE FIFTH CIRCUIT'S TREATMENT OF THE DIS-

TRICT COURT'S DISMISSAL FOR WANT OF PROS-

ECUTION UNDER F.R.CRIM.P. 48(b) HAS CREATED

A SPLIT IN THE LAW OF THE CIRCUITS AND HAS

ELIMINATED RULE 48(b) AS A JUDICIAL TOOL FOR

THE EFFECTIVE ADMINISTRATION OF CRIMINAL

JUSTICE.

That the delay in this case was “unnecessary “and that the

government's admitted failure to act for three and one-half vears

was a ‘want of prosecution” are beyond dispute. Having con-

cluded that the government abandoned this case and only re-

vived it in response to political pressure, Judge Duplantier dis-

missed the indictment pursuant to his discretion under Rule

48(b).'" The Fifth Circuit made no finding that Judge Duplantier

had abused his discretion — nor could it have done so in light of

the extraordinary record in this case — but it nevertheless sum-

marily reversed.'? The sum total of the Fifth Circuit's “review™

of Judge Duplantier’s exercise of his discretion under Rule 45(b)

was a single confusing paragraph:

“The record demonstrates that the government never

requested a continuance or deliberately delayed the pros-

ecution. [Note disregard of three and one-half vears of ad-

mittedly deliberate failure to prosecute.| There is no seri-

18. F.R.Crim P Rule 48(b) provides, in pertinent part

“[1}f there is unnecessary delay in bringing a defendant to trial, the court

may dismiss the indictment :

The Advisory Committee Note to Rule 48(b) states

“This rule is a restatement of the inherent power of a court to dismiss a

case for want of prosecution. Er parte Altman, 44 F.Supp. 106 (S.D. Cal

1940)”

19. It is axiomatic that the standard of review is abuse of discretion. Ses

e.g., United States v. Palmer, 502 F.2d (233, 1234 n.3 (5th Cir.) reversed on

other grounds, 423 U.S. 64 (1974), United States « Correia, 331 F.2d 1095

1099-1100 (1st Cir. 1976), United States t. Lane, 561 F.2d at 1075, LOTS (2d

Cir. 1977), 1078, United States v. Scott, 518 F.2d 261, 269 (6th Cir. 1975

United States v. Lee, 413 F.2d 910, 912 (7th Cir), cert. denied, 396 U.S. 1022

(1969); United States v. Kitzman, 520 F.2d 1400, 1402 (Sth Cir, 1975). United

States v. Moore, 653 F.2d 384, 389 (9th Cir.), cert. denied, 102 S.Ct. 680

(1981); United States v. DeDiego, 511 F.2d 818, 824(D.C. Cir. 1975)

ous suggestion of prosecutorial bad faith. The delays

occasioned by Litton’s various legal initiatives in 1977, 1978

and 1979 {Note failure even to mention the critical vears of

1980, 1981, and 1982] cannot be attributed to the prosecu-

tion, There was no constitutional deprivation, and peremp-

tory dismissal without forewarning, followed by [sic] a long

period of acquiescence in the delay, was not appropriate.”

(A-14,)?°

Most critical for this Court's consideration is that the Fifth

Circuit apparently now requires “forewarning” to the prosecu-

tion before a district judge can exercise his discretion to dismiss

for unnecessary delay even in a case which has been abandoned

for three and one-halt years.”! A split in the law of the Circuits

has thus been created and, in the process, Rule 48(b) has been

emasculated as a judicial tool for the effective administration of

criminal justice.

Rule 48(b) codifies the common law power of a court to con-

trol its own docket. Ex Parte Altman, supra. Virtually every Cir-

cuit to address the question has held that the district courts’

power to dismiss under Rule 48(b) is not confined to constitu-

tional violations.”* It follows a fortiori that “forewarning’, which

is not required for speedy trial determinations, could never be a

20. Presumably the Fifth Circuit intended to sav “following” rather than

“followed by.”

The Fifth Circuit disregarded the record, inter alia. by (1) ignoring that

most of 1977 and 1978 were taken up by the government's appeal from the orig-

inal dismissal for prosecutorial misconduct, (2) conspicuously omitting refer-

ence to the vears 1980, 1951, and 1982, the sole period of delay to which

Litton’s motion was directed, and (3) ignoring that the government had actually

admitted before Judge Duplantier that it had consciously and deliberately

failed to proceed during the three and one-half vear period from March, 1979.

to September, 1982. (A-21-23.)

21. As Judge Duplantier so perceptively asked, “How about thirty years?

How about eighteen? Four, six, where?” (A-5S3.)

22. The First, Second, Third, Fifth, Sixth, Seventh, Eighth. Ninth,

Tenth, and District of Columbia Circuits have all held that Rule 48b) is

broader then the Sixth Amendment. United States v. DeLeo, 422 F.2d 487,

495 (Ist Cir), cert. denied, 397 U.S. 1037 U.S. 1037 (1970), United States t

Lane, 561 F.2d 1075, 1078 (2d Cir. 1977), United States v. Dreyer, 533 F.2d

(continued next page)

general prerequisite for Rule 45(b) dismissals. indeed, Rule

48(b) has been commonly applied to dismiss indictments for

want of prosecution without any suggestion whatsoever that ju-

dicial “forewarning” would be prerequisite to such action * In

this case, faced with “explanations” of the government's inac-

tivity that amounted to clear admissions of deliberate failure to

prosecute during the period of extraordinary delay, Judge

Duplantier framed the threshold issue before him at the hearing

on Litton’s motion to dismiss:

“The problem that I have to weigh is what is the Govern-

ment’s obligation with respect to that. Could the Govern-

ment remain happy for twenty years and then say, ‘Well,

you didn't ask for a speedy trial. We didn't. We were

happy. You were happy. We now want to try the case.’

How about thirty years? How about eighteen? Four, six,

where? That is really what is before me.” (A-83.)

Rule 48(b)'s dismissal sanction was intended to codify the federal

courts’ inherent power to solve this precise problem. The Crimi-

nal Rules Advisory Committee underscored that absent the

power to dismiss for want of prosecution, the courts would be

without power to prevent the government from abusing its pre-

rogative of when or whether to move for trial. As articulated by

NOTE— Continued)

112, 113 n.1 (3d Cir. 1976), United States v. Novelli, 544 F.2d 800, 803 (5th

Cir. 1977), United States v. Scott, 518 F.2d 261, 269 (6th Cir. 1975), United

States v. Clay, 481 F.2d 133 (7th Cir. 1973), United States v Crow Dog, 532 F

2d 1182, 1194 (Sth Cir. 1976), United States v. Simmons, 536 F.2d 827, 533

(9th Cir. 1976), United States v. Stoker, 522 F.2d 576, 580 (10th Cir. 1975),

Mathies v. United States, 374 F.2d 312, 314-15 (D.C. Cir. 1962)

23. See, e.g, United States v. Correia, 53) F.2d 1095 (1st Cir. 1976),

United States v. Dreyer, 533 F.2d 112 (3d Cir. 1976), United States v. Mann,

291 F.Supp. 265 (S.D.N.Y. 1968), United States v. Mark II Electronics of Lou-

isiana, Inc, 305 F.Supp. 1280 (E.D. La. 1969), United States v. Kleinbard,

333 F.Supp. 699 (E.D. Pa. 1971), United States v. Seafarers International

Union, 343 F.Supp. 779 (E.D.N_Y. 1972), United States v Price, 373 F.Supp

825 (WD. Mo. 1974), United States v. Dowl, 344 F.Supp. 1250 (D.C. Minn

1975), United States t. Rowbotham, 430 F Supp. 1254 (D. Mass. 1977), United

States v. Quillen, 4685 F Supp. 480 (E.D. Tenn. ), aff'd 588 F 2d 831 (6th Cir

1978

the now classic decision in Ex parte Altman, 34 F.Supp. 106,

108 S.D. Calif. 1940

“We can conceive the anarchy which would result if the

power to terminate a criminal proceeding for want of pros-

ecution did not exist. Defendants might have prosecutions

hang over their heads, like the sword of Damocles, for

years, without an effort being made to bring them to trial.

And yet, if the prosecutor should refuse fo try them, and

the court acquiesce, they would be at his mercy.”

In reversing Judge Duplantier’s discretionary dismissal, the

Fifth Circuit emasculated the district courts’ power to control

their own dockets and abrogated Rule 45(b)'s unique protection

against prosecutorial abuse. If the district courts were required

to “forewarn’ the prosecution of a potential dismissal, ne matter

how egregious the delay, the government would be encouraged

to adopt a “heads-I-win-tails-you-lose” position, for its compla-

cency, no matter how prolonged, could be punished by no more

than a simple admonition to proceed.

Prior to this case, the concept of “forewarning’ as a prereq-

uisite to dismissal under Rule 48(b) was virtually unheard of,

having been limited to a few exceptional cases where the delay

was brief, the prosecution was proceeding in the normal course,

and no reasonable person could have anticipated dismissal. In

United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979), for

example, the lower court dismissed an indictment with preju-

dice within only six months of the defendant's arrest because the

government indicated that it would appeal an unfavorable sup-

pression ruling. The Ninth Circuit reversed, holding that with-

out ‘forewarning, the government could not have reasonably

anticipated that taking a good faith appeal from a suppression

ruling, while otherwise proceeding in the normal course, would

result in a dismissal with prejudice under Rule 48(b). 628 F.2d

at 1150-51. Similarly, in United States v. Simmons, 536 F.2d 827

(9th Cir. 1976), a four-month old indictment had been dismissed

with prejudice by the district court on Rule 48(b) grounds, de-

spite the fact that the case was on the eve of a scheduled trial.

The Court of Appeals reversed, holding that dismissal with prej-

udice could only be sustained if the prosecution were “fore-

warned’ that so extreme a sanction would be a consequence of

such minimal delay.

These cases relied upon United States v. Clay, 481 F.2d

133 (7th Cir. 1973), where the Court recognized the need for

special caution in the application of Rule 48(b) if the prosecution

is proceeding in the normal course. In Clay, the district court

dismissed because of an unnecessary prosecutorial delay of eight

months following the defendant's arrest. Writing for the Sev-

enth Circuit, then Circuit Judge John Paul Stevens carefully

analyzed the purpose of Rule 48(b) and explained why the dis-

trict court had abused its discretion:

“ “Rule 48(b) is a codification of the inherent power of a

court to dismiss a case for want of prosecution’. . . . If cases

are completely inactive for prolonged periods, or perhaps

simply too old to be kept on an active calendar, a court

surely has power to enter an order of dismissal for waat of

prosecution even though neither litigant has been

prejudiced by the delay. Moreover, the court may properly

threaten to enter such an order as a means of requiring liti-

gants to pursue their matters to an expeditious conclusion.

But if no unusual circumstances are shown, past delay does

not justify dismissal of a case which is in fact going forward

with appropriate speed. There were no special circum-

stances in this case which called for the exercise of judicial

discretion. . . .

The order rested on the court's holding that a period of

approximately eight months of unnecessary pre-indictment

delay required dismissal. We have no doubt that a district

court has the power to promulgate a rule which would lead

to the dismissal of indictments returned after such a period

of unnecessary or unexplained delay. However, such a rule

should be applied uniformly within the district and en-

forced only after the United States Attorney is aware that

such a consequence will automatically follow a delay of that

magnitude. Absent such forewarning. or some other show-

ing justifying an ervercise of discretion in this particular

case, we hold that it was error to dismiss the indictment

simply because unnecessary delay of approximately eight

months occurred before the indictment was returned.”

45] F.2d at 137-38 (Emphasis added; footnotes omitted).

The holding in Clay is based on the valid assumption that

no prosecutor reasonably could anticipate a dismissal under

Rule 48(b) if a case were “going forward with appropriate

speed.” The eight-month pre-indictment delay in Clay was not

considered comparable to a case — such as this one — left “com-

pletely inactive for prolonged periods,” pursuant to which “a

court surely has power to enter an order of dismissal for want of

prosecution even though neither litigant has been prejudiced by

the delay.” The Fifth Circuit's decision in this case, where the

prosecution was deliberately abandoned for three and one-half

years, plainly conflicts with Justice Stevens holding in Clay.

In United States v. Mann, supra, expressly adopted by this

Court in Barker v. Wingo as “an example of how the speedy trial

issue should be approached” 407 U.S. at 533, n.36, the govern-

ment responded to a defense motion to dismiss with pretextual

“excuses for the delay and accused the defendant of “acquies-

cence.” Judge Frankel rejected the government's position, ob-

serving:

“It is commonly understood that the defendant will hesitate

to disturb the hushed inaction by which dormant cases have

been known to expire. There is no comparable ground — at

least no justification — for ambivalence in the prosecutor's

office about performance of the unquestioned duty to im-

plement the right to a speedy trial.”

291 F.Supp. at 274-75 (Citstions omitted, emphasis added.) He

then dismissed the indictment, as did Judge Duplantier in this

case, both on Sixth Amendment grounds and tor want of pros-

ecution under Rule 45(b). Despite this Court's explicit approval

of Judge Frankel’s disposition in Mann, that case would be

summarily reversed today by the Fifth Circuit tor lack of “tore-

warning —

It the government s deliberate failure to prosecute tor three

and one-half) ars from March, 1979 to September, 1952) does

not qualify under Rule 45(b) as a “want of prosecution, it 1» difh-

cult to imagine what ever could constitute grounds for a district

court's invocation of that Rule. There could be no rational basis

— and, indeed, the Fifth Circuit offered none — fo requiring

“forewarning” where the government deliberately has aban-

doned its prosecutorial duties.

Betore the decision in this case, the requirement of “fore-

warning’ in a few extraordinary cases had already created poten-

tial confusion in the administration of criminal justice under

Rule 45(b). Although those cases were explainable previously

because of their peculiar procedural postures, the Fifth Circuit s

decision has now escalated a brewing disagreement among the

Circuits iato a sharp conflict. The authoritative voice of this

Court must now be heard.

Il. THE TOTALITY OF CIRCUMSTANCES REQUIRES

THAT THIS COURT EXERCISE ITS SUPERVISORY

POWERS TO CURB A CONTINUING COURSE OF

“REPREHENSIBLE” AND “INTOLERABLE” PROSE-

CUTORIAL ABUSE.

Although Litton’s Motion in the district court was specifi-

cally concerned with prejudicial delay. Judge Duplantiers deci-

sion to dismiss the indictment was not made in a vacuum. Betore

him was a course of raisconduct by the government beginning at

the very inception of this prosecution

1 The prosecutors vindictively: made good their

threat of indictment as leverage in concurrent civil litiga

tion When Litton retused to reopen its final ASBCA award

2 The government abandoned this case after it was

transterred to Mississippt

> After three and one-half vears of admutted talure to

take a single action. the government solely in response to

polity al pressure then sought to resurrect the indictment

Judge Duplantie: thus sought to protect the full range of pudic ial

and constitutional controls historically imposed on the awesornie

powers of federal prosecutors By ignormg the undisputed tacts

of record and the settled law of this Court and other Circuits,

the Fifth Circuit has eroded those controls and profoundly un-

dermined fundamental due process rights.

The immediate problem facing the district court was the

clear evidence that the government had abandoned this case and

then, without any judicial control, simply arrogated to itself the

decision to resurrect the indictment, Such behavior involved

more than a simple matter of unjustified delay. As Judge

Duplantier wrote:

“Neat categorizations of previous decisions do not ap-

ply to the present extraordinary situation in which the gov-

ernment admits that an excessive period of inaction was the

result of governmental complacency. Surely such a con-

scious, intentional decision not to proceed presents more

than a negligent or neutral reason for delay. The decision

not to seek a trial date for nearly four years was deliberate

and thus weighs very heavily against the government.”

(A-25-26; emphasis added, footnote omitted. )

Judge Duplantier was also aware that the indictment had

been dismissed for the first time in the Eastern District of Vir-

ginia for prosecutorial misconduct. The pertinent facts

underlying that dismissal had been unaffected by the Fourth

Circuit's subsequent reinstatement of the indictment:

‘L) Although the government admitted that it had no

evidence of criminal intent — and, hence, no probable

cause to indict — it nevertheless threatened to indict

Litton,

2) When Litton retused. the government vindictivels

carned out its threat and produced an indictment using

summary testimony by FB agents. rather then by produc-

ing further evidence

) One of the government attorneys partic~patinig in

the prosecution boasted Litton bought this mdietment

452-56

The distret court in Virginia thas expressly conchided that the

governments conduct in procurmg the michetment solely tor re

tuliators purposes was reprehensible The Fourth Circuit et

roneoush relied upon Bordenkircher «Hanes supra tor the

proposition that the government's conduct was “permissible

plea bargaining.” In so doing, the Fourth Circuit totally ignored

the undisputed fact that no “plea” had ever been considered,

since the government had candidly admitted that it lacked any

evidence of criminal intent.

An article appearing in the Washington and Lee Law Re-

view in 1979, fearful that “other courts may unfortunately regard

Litton as something other than what it is, an aberration,” sharply

criticized the Fourth Circuit's decision:

“The legerdemain of the Fourth Circuit in avoiding the

limitations of the Bordenkircher holding is remarkable. The

court both cited Bordenkircher as controlling authority and

vet evaded its express requirement of probable cause,

which was essential to legitimatize the plea bargaining

process. Thus, the court in one breath relied on, and

in the next ignored, Bordenkircher’s constitutional

underpinnings.

Smaltz, “Due Process Limitations On Prosecutorial Discretion

In Re-Charging Defendants: Pearce To Blackledge To

Bordenkircher.” 36 Washington and Lee Law Review 347, 373,

376 (1979). Further, the Fourth Circuit ignored the well-settled

ethical prohibitios against using the criminal process to gain ad-

vantage in a civil action.*’ Another law review severely criti-

cized this aspect of the decision:

24. The ABA Code of Professional Responsibility, DR 7-105 A), states. “A

lawyer shall not present, participate in presenting, or threaten to present crim-

inal charges solely to obtain an advantage in a civil matter.” In addition, Ethi-

cal Canon 7-21 provides “The civil adjudicative process is primarily designed

for the settlement of disputes between parties, while the criminal process is

designed tor the protection of society as a whole. Threatening to use, or using,

the criminal process to coerce adjustment of private civil claims or controver-

sies is a subversion of that process, further, the person against whom the crimi-

nal process is so misused may be deterred from asserting his legal rights and

thus the usetulness of the onal process in settling private disputes is im-

paired See Raton t Holbrook, 671 F 2d 670 (Ist Cir, 1982). Jones t

Taber, 645 F ld 1201 9th Cir 19SD. Singleton te City of New York, 632 F.2d

185 2d Cir LYS) Amerwan Acceptance Corp « Glendora Better Builders,

Inc 550 F ld 1220 Yth Cir 1YTT) Boyd « Adams, 513 F 2d 83 (7th Cir

1975) MacDonald + Muswhk. 425 F 2d 373 9th Cir 1970), cert. denied, 400

US S52 1970) Ganger st) Peyton. 379 F 2d 709) 4th Cir, 1967

“The potential for prosecutorial coercion . . . becomes

most apparent in situations where, as in Litton, the Gov-

ernment is the prosecutor in a criminal action, as well as a

party to a related civil action involving the defendant. . . .

Should a party be intimidated sufficiently by the prospect of

a criminal investigation and prosecution, the zealous pros-

ecutor effectively could discourage a party from pursuing a

valid claim against the government or a government

agent,

To authorize the use of criminal investigation prior to

indictment as a means of influencing a civil proceeding, es-

pecially after a grand jury has been impanelled and has

failed to return an indictment, creates an atmosphere con-

ducive to undue prosecutorial coercion and abuse.

Note. “Government Use of Criminal Investigation and Indict-

ment To Induce Reconsideration Of Adverse Civil Administra-

tive Decisions,” 15 Wake Forest Law Review 271, 251-282, 284

n.S5 (1979)

Against this background, Judge Duplantier was faced with

the fact that the government deliberately failed to proceed after

the indictment had been reinstated and the case transterred to

Mississippi. The misconduct in procuring the indictment and

the subsequent abandonment were mutually confirmatory: The

abandonment confirmed the fact that the indictment had been

obtained solely for retaliatory purposes rather than in the inter-

est of justice, the evidence of retaliatory motivation in procuring

the indictment confirmed the conclusion that the admitted three

and one-half vear failure to take a single prosecutorial step was,

in fact, an abandonment — rather than merely delay — because

the government had never seriously anticipated a criminal con-

viction.

In sum, the record betore Judge Duplantier manifested a

consistent course of conduct that had originated with the gov-

ernment “reprehensible” effort to use its intimidatory criminal

charging power to obtain an advantage in the litigation of a civil

case. The government's de facto nolle prosse of the indictment

was no accident or mere incident of negligence. The indictment

had been obtained for reasons other than the prosecution of an

actual criminal offense. So long as the indictment hung over

Litton’s head, the government had no serious interest in pro-

ceeding. Indeed, the only time the government litigated this

case with any vigor was in defense of its “reprehensible

prosecutorial motives. Once the government's conduct: had

been approved by the Fourth Circuit, the government was “per-

fectly satisfied” with not proceeding to trial — simply holding

the threat of prosecution over Litton’s head as leverage in nego-

tiating a settlement of the pending civil litigation before the

Court of Claims.”

The government's subsequent motion to set a trial date, re-

sponding to political pressure after the prosecution had been

abandoned for three and one-half years, thus presented the dis-

trict judge with an extraordinary situation: The government had

de facto nolle prossed an indictment that it never had intended

to pursue in the first place — but now it was seeking to revive

that moribund case without even a semblance of judicial or con-

stitutional control. The grand jury's Fifth Amendment role was

long in the past. Several key witnesses had died during the spe-

cific period of abandonment to which Litton’s Motion was ad-

dressed. And by simply dropping the case without seeking a for-

mal nolle prosse, the government had arrogated to itself the

right to revive an indictment, even after a significant change of

circumstances, including the deaths of exculpatory witnesses

and the loss or destruction of relevant documents.

Judge Duplantier thus perceived the culmination of a

course of prosecutorial malfeasance that had utterly disregarded

Litton’s due process rights for a period of more than six vears.

The judicial and constitutional controls typically implemented

by the indicting process had been effectively nullified. Aggravat-

ing this already intolerable situation was the extraordinary age of

events upon which factual determinations would have to be

25) When the ASBCA issued its $17 million award to Litton, both sides

agreed not to seek rehearing. The government refused, however, to pay Litton

the $17 million ASBCA award, and an action to entorce the final award was

therefore commenced in the Court of Claims (now the Claims Court

made at trial. In considering prejudice to Litton’s defense re-

sulting from delay, Judge Duplantier observed:

“(Wile note the seeming truism that the risk of prejudice is

great in a complex case based on old tacts. The government

agrees that the present case involves an intricate set of cir-

cumstances based upon facts which occurred over fifteen

vears ago. Even if much of the delay in this case is viewed

as justified, the fact that long periods of justified delay have

occurred simply increases the possibility of serious preju-

dice arising during periods of unjustified delay.” (A-30.)

Thus, the district court held that long periods of otherwise “jus-

tifiable delay” made it all the more incumbent upon the govern-

ment to proceed expeditiously thereafter:

“Both lengthy prior periods, the first between the al-

leged criminal activity and indictment, and the second be-

tween indictment and March 19, 1979, amplify the

unreasonableness of any subsequent periods of unjustified

delay. (A-22.)

The inescapable conclusion trom the government's behavior was

that its prosecutoria! decisions were politically motivated at best

and blatantly without regard for either ethical considerations or

prosecutive responsibility.

Judge Duplantier simply could not conceive of allowing

such flagrant abuse of prosecutorial power to continue without

sanction. Accordingly, he dismissed the indictment both on con-

stitutional grounds and pursuant to his clear discretion under

Rule 48(b).

The Fifth Circuit's reversal ignored the entire course of

prosecutorial malfeasance.*° The Opinion simply held that prej-

udice to Litton resulting from the government's misconduct was

“speculative”, basing its conclusion on its own speculative fact

26. It is difficult to believe that the Fifth Circuit would have counte-

nanced the “reprehensible” and “intolerable” governmental behavior in this

case were the defendant an individual and not a corporation

finding frolic regarding the lost testimony of dead witnesses.

And even apart from its errors in connection with defense preju-

dice caused by delay, the Fifth Circuit's short-sighted holding

ignored the district court’s supervisory power to dismiss an in-

dictment as a remedy for persistent’ prosecutorial abuse,

irrespective of prejudice to the defendant.*’ The Fifth Circuit's

decision thus effectively eradicates the special obligations of

government attorneys in criminal cases to prosecute fairly,

diligently, and with just cause rather than from political or pecu-

niary motivation. Due process rights under the Fifth Amend-

ment and the due process implications of the Sixth Amendment

require that this Court now exercise its own supervisory power

to prevent further injustice.”

27. Cf. United States v. Hogan, 712 F.2d 757 (2d Cir. 1983), United

States v. Serubo, 604 F.2d SOT (3rd Cir, 1979

28. Cf. United States vo Hale, 422 US. 171, ISL 1975), MeCarthy

United States, 394 U.S. 459, 4641965). Cheffic. Schnackenberg, 384 U.S. 373

1966) plurality’, Elkins « United States, 364 U.S. 206, 216 (1960), Marshall t

United States, 360 U.S. 310, 313 (1959), Yates v. United States, 356 U.S. 363,

366-67 (1958S), Grunewald v United States, 353 U.S. 391, 424 (1957), 28

U.S.C. $2106. See Rosales-Lopez vu. United States, 451 U.S. 182, 192 (1981)

(plurality), Ristaino «Ross, 424 0S. 589, 597 n.9 (1976). Gaca v. United

States, 411 US. 61S (1973

CONCLUSION

For the foregoing reasons, Litton respectfully requests that

a Writ of Certiorari issue to review the judgment of the Cnited

States Court of Appeals for the Fifth Circuit.

Respecttully submitted,

Bruce W. Kauffman

Stephen J. Mathes

Jonathan D. Natelson

Panl S. Diamond

DILWORTH, PANSON, KALISH

& KACKEMAN

2600 The Fidelity Building

Philadelphia. PA 19109

Edmund L. Brunini

George P. Hewes, III

Charles P. Adams, Jr.

BRUNINI, GRANTHAM, GROWER &

HEWES

1400 First National Bank Bldg.

Jackson, MS 39205

Attorneys for Petitioner,

Litton Systems, Ine.

APPENDIX

Fifth Circuit Opinion 4-]

UNITED STATES OF AMERICA,

Plaintiff-Appellant

LITTON SYSTEMS, INC. d/b/a INGALLS

NUCLEAR SHIPBUILDING DIVISION

Defendant-Appellee

No, $3-4064

United States Court of Appeals.

Fifth Circuit.

Jan. 13, 1954

Joseph A. Fisher, HI, James A. Metcalfe, Asst. U.S. Attys..

Alexandria, Va., Sara Criscitelli, Appellate Section, Crim. Div

Dept. of Justice, Washington, D.C., for plaintifl-appellant

E.L. Brunini, George P. Hewes, III, Charles P. Adams.

Jr.. Jackson, Miss., Stephen J. Mathes, Bruce W. Kauffman.

Philadelphia, Pa., tor defendant-appellee.

Appeal from the United States District Court tor the South-

ern District of Mississippi.

Before, BROWN and RANDALL, Circuit Judges and HUNTER®

District Judge.

EDWIN F. HUNTER, Jr.. District Judge

This case involves a criminal charge that $37,000,000

claimed for increased costs by Litton’s nuclear shipbuilding ta-

cility in Pascagoula, Mississippi was fraudulent (1S U.S.C. 287

Litton filed a motion to dismiss the indictment, contending that

because of delay and prejudice, further prosecution would \io-

* District Judge of the Western District of Louisiana, sitting by designa-

tion

A-2 Fifth Circuit Opinion

late its Sixth Amendment right to a speedy trial. Litton also

urged dismissal on the basis of Rule 48(b) of the Federal Rules of

Criminal Procedure. The district court, 557 F. Supp. 565, found

a constitutional deprivation of the speedy trial guarantee and

granted the motion to dismiss. Alternatively, the district court

noted that in the event the delay had been found to be less than

constitutional in dimension, it would have exercised its discre-

tion and granted Litton’s motion under Rule 45(b)' The United

States appeals the order of dismissal and requests that the case

be remanded for trial

[1] Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33

1..Ed.2d 101 (1972), is, of course, the controlling authority.

There, the Supreme Court categorically rejected inflexible ap-

proaches and enunciated a balancing test, in which the conduct

of both the prosecution and the defendant are weighed. Id. at

530-533, 92 §.Ct. at 2191-2193. The balancing test requires the

consideration of at least four factors: the length of the delay, the

reason for the delay, the timeliness and strength of the deten-

dant’s assertion of his right, and the prejudice accruing to the

defendant from the delay. No single factor is determinative;

these “must be considered together with such other circum-

stances as may be relevant.” 407 U.S. at 533, 92 S.Ct. at 2193.

After carefully considering all the tacts, we conclude that,

on balance, Litton’s Sixth Amendment rights to a speedy trial’

have not been violated, and that the “unsatisfactory severe rem-

edy of dismissal” was not appropriate in the particular context of

this complex case. 407 U.S. at 522, 92 S.Ct. at 2155.

1. The Speedy Trial Act, 1S US.C. 3161, et seq.. 1s applicable only to

indictents filed on or after July 1. 1980 15 U.S.C. 3163), United States t

Horton. 646 F.2d 181 5th Cir. 1981). Nevertheless, Litton did agree on Janu-

ary 25. 1979 to waive its right to a speedy trial under the Act. This waiver oc-

curred after the case was transferred to the Southern District of Mississippt,

when the court declined to set a trial date because of Litton’s argument that

pre-trial motions might be dispositive and that it needed time to prepare for

trial

2. The Sixth Amendment reads in pertinent part

‘In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed

Fifth Circuit Opinion A-3

BACKGROUND

Various contentions are made in argumentative fashion in

explanation of the extensive delay. We find little dispute as to

the basic facts as reflected by the record.

1) In 1965, the Ingalls Nuclear Shipbuilding Division of

Litton Systems, Inc. (“Litton”) contracted with the United

States Navy for the construciton of three nuclear submarines.

(2) Two years after the contract date, Litton filed a claim

with the Navy seeking approximately 37 million dollars as a re-

sult of increased costs allegedly incurred by late delivery of gov-

ernment-furnished materials. The claim was brought before the

Armed Services Board of Contract Appeals (ASBCA), which in

April 1976 awarded Litton more than 16 million dollars.’ This

award was pegged on what the government now refers to as the

false claim document, upon which the indictment is based.

3) Litton filed a complaint in the United States Court of

Claims seeking to recover the amount awarded. The United

States counterclaimed for fraud. ’

4) January 17, 1977. Assistant Attorney General Richard

Thornburg requested the United States Attorney to present the

matter to « grand jury for the purpose of seeking an indictment.

Attorney General Grithn Bell approved prosecution of the case

on February 7, 1977

(3) Litton expressed a desire to avoid prosecution and to re-

turn the matter to the Board along the lines of a proposal pre-

viously made by the government. The government attorney

(Dunham) indicated that the prosecutors were now opposed to

such a disposition but that he would forward any proposal from

Litton to the Department of Justice for review. At Litton’s re-

quest, the Attorney General, his principal assistants for matters

pertaining to criminal prosecutions and fraud, and the United

States Attorney and his assistants met with Litton’s representa-

$ On February 3. 1975. the Court of Claims entered a stay pending final

resolution of the criminal action

A-4 Fifth Circuit Opinion

tives. At the conclusion of this conference the Attorney General

found no justification for ierminating the prosecution. United

States v. Litton Systems, Inc., 573 F.2d 195-198 (4th Cir. 1978).

(6) April 6, 1977. A federal grand jury in Alexandria, Vir-

ginia indicted Litton for filing a false claim in violation of 18

U.S.C. 287.

(7) April 11, 1977. Litton entered a plea of not guilty and

filed a notice that the case was potentially complex. The court

set May 20th for a hearing on pre-trial motions and set trial for

June 6, 1977.

(8) May 2, 1977. Litton filed numerous motions, including

one for a continuance of the trial date. In support of its motion

defendant cited cases for the proposition that “myopic insistence

upon expeditiousness’ can render a defense ineffective, and that

“concern with calendar dispatch should not triumph over the

right to a fair trial.

(9) May 17, 1977. The United States filed a formal opposi-

tion to defendant's motion for a continuance.

(10) May 25, 1977 (10 days before the government was pre-

pared to begin trial). The district court dismissed the indictment

on the grounds of prosecutorial misconduct, concluding that the

government had used the implied threat of an indictment in an

effort to have Litton submit its claim to the ASBCA for reconsi-

deration.

(11) April 4, 1978. The Fourth Circuit vacated the dis-

missal order. United States v. Litton Systems, Inc., 573 F.2d

195.

(12) October 2, 1978. The Supreme Court denied Litton’s

petition for certiorari. 439 U.S. $28, 99 S.Ct. 101, 58 L.Ed.2d

121.

(13) November 28, 1978. The case was remanded to the

United States District Court for the Eastern District of Virginia.

(14) December 1, 1978. Litton moved for a change of

venue to the Southern District of Mississippi.

(15) December 4, 1978. The United States filed a motion

for an order setting a trial date.

Fifth Circuit Opinion A-5

(16) December 8, 1978. Litton’s motion for a change of

venue was granted.

(17) December 20, 1978. The case was docketed in the

Southern District of Mississippi. At that time the government

was again prepared to go to trial.

(18) January 25, 1979. An untranscribed status conference

was held at Jackson, Mississippi (Russell, J.). Mr. Frank W.

Dunham, Jr., who was in 1978 the First Assistant United States

Attorney for the Eastern District of Virginia, and who was later

appointed a Special Assistant United States Attorney for the

handling of this case, filed a detailed affidavit in the record. It

reveals that at this conference, Litton objected to the govern-

ment’s request that a trial date be set. Litton also represented

that it had employed new counsel (see March 7 letter from

Brunini to Honorable Dan C. Russell, Jr.) and that it would take

more than one year to properly prepare for trial.

(19) January 29, 1979. The district court entered three or-

ders. One “ordered defendant to produce for the government

within 60 days any document it intended to use at trial."* The

second order, upon joint motion, found the case “as a whole, is

so unusual and so complex due to the nature of the proceedings

that it is unreasonable to expect adequate preparation within the

periods of time established by ... the Speedy Trial

Act... and... the ends of justice served by the entry of this

Order outweigh the best interests of the public and the defend-

ant in a speedy trial.” Finally, the court entered an order speci-

fying the manner in which motions and objections should be

filed. This order noted that the parties were to file their motions

within 40 days.

(20) March 7, 1979. Litton filed several motions, including

one to dismiss upon statute of limitations and for alleged grand

jury violations. It also requested a non-jury trial.

21) March 19, 1979. The government filed objections to

Litton’s motions, arguing that with the exception of the motion

for a non-jury trial, they restated previous motions denied in

$ To date. the government has not received a single defense exhibit

Dunham affidavit

A-6 Fifth Circuit Opinion

Virginia. These objections were filed directly with the district

judge, together with a letter that closed: “We look forward to

receiving further directions from the court as to a hearing date.”

No directions followed.

(22) December 19, 1979. The parties met and agreed that

the prosecution would be staved during settlement negotiations

(23) January 23, 1950. Litton’s attorney wrote to. the

United States Attorney confirming that negotiations were

ended. The letter stated that “it is understood that the parties’

agreement not to take any further action concerning the criminal

case during the pendency of negotiations is terminated.”

(24) January 13, 1952. Admiral Hyman Rickover wrote to

Attorney General William French Smith

“Over the past decade | have documented and reported to

Detense Department official) numerous examples of false

claims submitted by three major shipbuilders, Litton, Gen-

eral Dynamics, and Tenneco. The Navy, after reviewing

these reports, forwarded them tor investigation by the Jus-

tice Department. Today, after years of effort, it appears that

the Justice Department is systematically closing down

these investigations — either overtly or by inaction — even

though the claims are demonstrably false and those who

have investigated them have, I believe. recommended to

their superiors that indictments be sought. In view of the

Justice Department's poor record in this area. and its im-

pact on Government procurement, | am bringing this mat-

ter to vour attention with my recommendations for correc-

tive action.”

(25) February 14, 1982. U.S. Senator William Proxmire,

having been alerted by Admiral Rickover's letter, also wrote a

letter to the Attorney General requesting a status report on

these cases and an explanation of why they had dragged on for so

long, and why they are being dropped.”

3. The Rickover and Proxmire letters appear in Appellees Record Ex-

cerpts. We cite them because of Litton’s assertion, in both bnef and oral argu-

ment, that ‘the government never would have pursued this indictment but for

the political pressure generated by Admiral Rickover and Senator Proxmuire

Fifth Circuit Opinion A-7

(26) September 23, 1982. The United States filed a formal

motion requesting a trial date. The court gave notice to counsel

that this motion would be heard on November 4, 1982.

(27) October 29, 1982. Litton filed its motion to dismiss for

prejudicial prosecutorial delay. The court noted its intention to

hear this motion on December 6, 1982.

(28) November 4, 1982. At the prescheduled hearing, the

United States again requested a trial date, arguing that a date

was particularly necessary because Litton had raised a speedy

trial claim for the first time. Litton argued that the court should

defer setting a date for trial, but instead should set a date for a

hearing on its motion to dismiss.

At this proceeding, Judge Russell was candid and forth-

right:

“As long as cases lie there dormant with the heavy

schedule and heavy calendar of this court, we don’t go

around kicking them up. If the lawyers bring them to us, if

the interested parties bring them to us, then we get them

disposed of. And so, that may be part of the background in

this case. If the urgency is there, it gets tried.

. * *

“I'm sorry that it was not disposed of. The lack of hear-

ing from either side, I assumed there was no rush in it.”

Judge Russell did not set a trial date, but reset Litton's motion to

dismiss for December 20, 1982.

(29) December 5, 1952. Judge Russell at his own sugges-

tion entered a recusal order because of the possibility that he

might be a material witness as to the validity of the motion to

dismiss.

(30) December 27, 1982. A hearing of Litton’s motion to

dismiss was heard before Judge Adrian Duplantier in Biloxi,

Mississippi.

(31) January 12, 1983. Judgment was rendered, dismissing

the indictment

(32) January 21, 1953. Notice of appeal was given by the

United States

A-S Fifth Circuit Opinion

To determine whether there has been a constitutional de-

privation of the speedy trial guarantee, we return to the Barker

balancing process. See also, Jamerson v. Estelle, 666 F.2d 241

(5th Cir.1982), United States v. Greer, 655 F.2d 51 (5th

Cir.1981), United States v. Hill, 622 F.2d 900, 908 (5th

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

The first factor, the length of delay, serves two roles. First,

it must be examined and found to be “presumptively prejudi-

cial.” Barker v. Wingo, 407 U.S. 514 at 530, 92 S.Ct. 2182 at

2192, 33 L.Ed.2d 101. Here, the parties agree that the delay

was presumptively prejudicial and serves as a “triggering

mechanism” requiring, further analysis. Secondly, we must

weigh the length of the delay along with other factors we con-

sider.

Because the period of delay suffices to trigger inquiry, we

must address the presumptively prejudicial delay.” The Su-

preme Court said in Barker v. Wingo.

Closely related to the length of delay is the reason the gov-

ernment assigns to justify the delav. Here, too, different

weights should be assigned to different reasons. A deliber-

ate attempt to delay the trial in order to hamper the defense

should be weighted heavily against the government. A

more neutral reason such as negligence or overcrowded

courts should be weighted less heavily but nevertheless

should be considered since the ultimate responsibility for

such circumstances must rest with the gévernment rather

than the detendant

407 U.S. at 531, 92. S.Ct. at 2193, 33 L.Ed.2d at 117,

A chronological history of these proceedings has been re-

cited. For the sake of clarity we reiterate in order to place the

delay issue in proper perspective. The indictment was returned

6 We reiterate that the Speedy Trial Act is not applicable to this case

The excludability or non-excludability under its terms is largely irrelevant.

since its standards differ substantially from the four-factor test established by

the Supreme Court for determining whether a defendant's Sixth Amendment

right to a speedy trial, as distinguished from statutory rights. has been vio-

lated

Fifth Circuit Opinion AG

in April of 1977. The government requested and was granted a

trial date of June 6, 1977. Litton requested a continuance. Ten

days before the trial date, the district court granted the motion

for dismissal. Ten months later the United States Court of Ap-

peals for the Fourth Circuit vacated the dismissal order. Litton’s

petition for certiorari was denied and the case was reinstated in

November of 1978. The Virginia district court granted Litton’s

motion to transfer to the Southern District of Mississippi. The

Mississippi court called the case for a status conference on Janu-

ary 25, 1979. The government requested a trial date. Litton’s

new counsel represented that it would probably take at least a

year to prepare for trial. Litton filed a battery of motions. A

schedule was established for submission of government objec-

tions. These objections were filed on March 19, 1979, together

with a letter stating:

“We look forward to receiving further directions from the

court as to a hearing date.”

In November of 1979, no hearing date having been re-

quested or set, Litton’s counsel requested that the parties ex-

plore the possibility of a package resolution of this case and the

related civil case. On December 17, 1979, counsel met to dis-

cuss the proposal. It was agreed that neither side would make

any move to alter the status quo of the criminal case. Settlement

discussions terminated on January 23, 1980, without agreement.

During 1980, Mr. Dunham, the government's lead counsel in

wis extremely complex litigation, was totally unavailable. Sig-

nificantly, the government did not affirmatively ask for a con-

tinuance or do anything to protract the case. The government

simply did not demand a trial date at a time when its uniquely

qualified lead counsel was unavailable. Then, too, from Decem-

ber 1980 through March 1951, the government was giving seri-

ous consideration as to whether to proceed with this case. Be-

cause the original prosecution had been approved by Attorney

General Bell, a reconsideration of that initial prosecutive deter-

mination by the new Attorney General and his staff appeared

both reasonable and prudent. Mr. Dunham communicated his

thoughts and conclusions te the Department of Justice in mid-

A-10 Fifth Circuit Opinion

March, 1951. He caretully analyzed the pros and cons of con-

tinuing with the case, not only from the standpoint of the gov-

ernment’s interest, but also from the standpoint of fairness to

Litton. The decision to proceed was made, the new United

States Attorney in Virginia and her staff reviewed the case with

the Assistant Attorney General.’ They decided to assemble a

trial team (Dunham affidavit). The government filed a motion

requesting a trial date. Five weeks later, and just three days be-

fore a scheduled hearing on the motion, Litton moved to dismiss

the indictment and asserted its opposition to the setting of a trial

date. At the prescheduled November 4, 1982 hearing, Judge

Russell deferred setting a trial date. He recused himself because

of the possibility that he might be a “material witness” on the

issue of delay. Thereafter, Judge Duplantier was assigned to the

case

The two able and experienced trial judges who handled this

case candidly and correctly placed the matter in precise per-

spective. Judge Duplantier noted during argument that “both

sides” were perfectly happy with the delay. That's what strikes

me from the record, both sides, the Government and Litton.”

Judge Russell, before recusing himself, put it this way.

“[T want vou all to know that we have the heaviest case

load in the entire United States, myself, personally, with a

thousand and fifteen cases we've had speedy trials

down here, we've had a speciai crand jury that | impaneled

for three solid vears that has been bringing out indictments,

white collar indictments. Weve been rather busy in the

Southern District of Mississippi

‘As long as cases lie there dormant with the heavs

schedule and heavy calendar of this court, we don't go

around kicking them up. If the lawvers bring them to us, if

The care obviously given the matter by the Justice Department |dur-

ing this period) is certainly not any indication of bad faith or deliberate delay

See U St) MacDonald. 456 US. 1, 1028 Ct. 1497, 1503, fh 12. 7) L.Ed 2d

696 19S2

Fifth Circuit Opinion 4-]]

the interested parties bring them to us. then we get them

disposed of And so, that may be part of the background in

this case. If the urgency is there. it gets tried

“I'm sorry that it was not disposed of. The lack of hear-

ing from either side. | assumed there was no rush in it.”

[2] There is nothing speedy about a five vear delay, and such

a delay triggers inquiry, but a review of the appendix and

docketed record indicates that Litton rather than the govern-

ment is responsible for most of the procedural delays in 1977,

1978 and 1979. It would be difficult to charge the prosecution

with failure to trv the defendant while Litton itself was engaged

in seeking legal relief to prohibit such a trial. The government

did not affirmatively ask for a continuance or do anything to pro-

tract this case. There is no evidence, not even a whisper, that

the government deliberately attempted to delay the trial in or-

der to hamper the defendant. Nevertheless. affirmative action in

bringing cases to trial is mandated. The government cannot es-

cape that duty on the basis that the delay is for institutional rea-

sons. Barker, 407 U.S. at 531, 92 §.Ct. at 2192, United States v

New Buffalo Amusement Corp., 600 F.2d 368, 377 (2nd Cir.

1979). When negotiations were terminated in January of 1950,

the government should have proceeded to press for an expedi-

tious disposition of Litton’s pending motions. Its failure to do so

lends some support to defendant's Sixth Amendment claim

[3] Two counterbalancing factors outweigh this government

complacency. Prejudice, if any, is minimal. Prejudice, under

the Supreme Court's analysis, embraces three areas of protected

interests: oppressive pre-trial incarceration, anxiety and public

opprobrium of the accused and impairment of the defense. 407

U.S. at 532, 92 §.Ct. at 2193. The first two of these primary in-

terests do not apply to a corporate defendant. The final factor —

prejudice to one’s defense — is difficult to evaluate qualitatively

and quantitatively. It is speculative at best. United States v.

MacDonald, 435 U.S. 850, S55, 98 S.Ct. 1547, 1551, 56

L.Ed.2d 18(1975). Litton argues that several key witnesses have

died and documents vital to the defense have been lost. The dis-

trict judge noted the conclusion that compelling Litton to stand

A-12 Fifth Circuit Opinion

trial without these lost documents is not as clearly prejudicial as

is the absence of the deceased witness, Adams.

The government has supplied to Litton copies of all grand

jury testimony and intended trial exhibits. Only one of the boxes

destroved by the Navy in 1977 contained material arguably rel-

evant to this case. Its routine destruction before the indictment

was returned does not bear on the speedy trial claim. The re-

maining four boxes of documents currently missing were made

available to Litton in 1977. prior to the original trial date of June

1977. Thev were merely copies of materials furnished the gov-

ernment by Litton

Only one of the alleged unavailable witnesses was alive in

January of 1980. This was David Adams, whose absence the dis-

trict court found to be substantialls prejudicial. Adams had

worked for Litton in 1972 and had prepared the manpower

charts which Litton filed with the Department of Defense. He

was a key government witness before the grand jury, although

he was not called by either the government or Litton to testify at

the ABSCA proceeding. But, even if Adams could have been

available to give exculpatory testimony at Litton’s criminal trial.

his extensive grand jury testimony, strongly probative of corpo-

rate intent, wouid have been extremely effective impeachment.

The Supreme Court has recognized.

[Bletore trial, of course, an estimate of the degree to which

delay has impaired an adequate defense tends to be specu-

lative.”

United States v, MacDonald 1, 435 U.S. 850, 858, 98 §.Ct. 1547.

1551, 56 L.Ed.2d 18 (1978). The record in this case simply does

not support a finding that defendant suffered prejudice as a re-

sult of the delay.

[4] More important than the absence of prejudice is that

Litton definitely did not want to be tried. Barker rejected the

absolute rule that a defendant who fails to demand a speedy trial

forever waives his Sixth Amendment right, but made it abun-

dantly clear that the defendant's assertion of his desire to be

tried promptly is to be considered in deciding whether his right

has been denied:

Fifth Cireuit Opinion A-13

The detendant’s assertion of his speedy trial right. then, is

entitled to strong evidentiary weight in) determining

whether the defendant is being deprived of the right. We

emphasize that failure to assert the right will make it diffi-

cult for a defendant to prove that he was denied a speedy

trial.

407 U.S. at 531-532, 92 8.Ct. at 2192-2193

From the inception of this litigation, Litton has sought de-

lav. In effect. it now complains that it did not receive what it

never wanted. The district court found that a letter written by

Litton’s attorney to the United States Attorney s office on Janu-

ary 23. 1980 suffices to constitute an assertion of a Sixth Amend-

ment speedy trial right. Contrary to the district court's assump-

tion. the letter merely recorded the termination of the

settlement discussions that had been requested by Litton’s

counsel in November of 1979. The statement in the letter —

“the parties: agreement not to take any further actions concern:

ing the criminal case during the pendency of the settlement ne-

gotiations is terminated” — does not by any stretch of the imagi-

nation constitute an assertion of a speedy trial demand or claim,

let alone a request. Such a reading lacks reality and in our view

is clearly erroneous

The truth is that Litton did not seek a trial date, Litton

made an intelligent, counseled speedy trial waiver. The govern-

ment never requested a continuance or deliberately delaved the

prosecution. To the contrary, the government was prepared to

prosecute the case in the Eastern District of Virginia in June

L977, and again when the indictment was reinstated in Novem-

ber 19YTS. and vet again after the case was removed to Missis-

sippi. Litton opposed prompt trials on each occasion and repeat-

edly expressed a need tor lengthy continuances to prepare tor

trial. Indeed, it continued in November 1952 to oppose the set-

ting of a trial date

[5] Our review of constitutional considerations pursuant to

Barker criteria convinces us that Litton was not denied a Sixth

Amendment speedy trial. Remarkably applicable here is the Su-

preme Court's closing paragraph

A-l4 Fifth Circuit Opinion

We do not hold that there may never be a situation in

which an indictment may be dismissed on speedy trial

grounds where the defendant has failed to object to con-

tinuances. There may be a situation in which the defendant

was represented by incompetent counsel, was severely

prejudiced, or even cases in which the continuances were

granted ex parte. But barring extraordinary circumstances,

we would be reluctant indeed to rule that a defendant was

denied this constitutional right on a record that strongly in-

dicates, as does this one, that the detendant did not want a

speedy trial. We hold, therefore, that Barker was not de-

prived of his due process right to a speedy trial.

407 U.S. at 536, 92 S.Ct. at 2195. There are no such “extraordi-

nary circumstances’ in this case, and to so hold would be a dis-

tortion and abuse of the right to a speedy trial under the Sixth

Amendment, which was never intended to protect those who do

everything in their power to delay or defeat the holding of a trial

as long as possible.

The district court, on a separate and alternative basis, dis-

missed the indictment pursuant to Rule 48(b) of the Federal

Rules of Criminal Procedure.*

The record demonstrates that the government never re-

quested a continuance or deliberately delayed the prosecution.

There is no serious suggestion of prosecutorial bad faith. The de-

lays occasioned by Litton’s various legal initiatives in 1977, 1978

and 1979 cannot be attributed to the prosecution. There was no

constitutional deprivation, and peremptory dismissal without

forewarning, followed by a long period of acquiescence in the

delay, was not appropriate.

The judgment of the district court is reversed, and the case

is remanded for further proceedings consistent with this opin-

ion.

REVERSED AND REMANDED.

8. This rule is not confined to constitutional violations, but also embraces

the inherent power to dismiss for want of prosecution. United States v. Novelli,

544 F.2d 800, 803 (5th Cir.1977). The rule provides in pertinent part:

“If there is unnecessary delay .. . in bringing a defendant to trial, the

court may dismiss the indictment, information or complaint.”

S.D. Miss. Ruling on Motion 4-15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

UNITED STATES OF AMERICA

CRIMINAL ACTION

NO. 578-0031(R

LITTON SYSTEMS. INC., d/b/a

INGALLS NUCLEAR SHIPBUILDING

DIVISION

The Motion to Dismiss the Indictment for Inexcusable and

Prejudicial Prosecutorial Delay and Loss and Destruction of Ex-

culpatory Evidence filed by defendant was heard on December

20, 1982, and was taken under submission.

The motion is granted; the indictment is dismissed. Writ-

ten reasons will be assigned.

Dated: December 23, 1982

A-16 S.D. Miss. Judgment

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA

CRIMINAL ACTION

NO. 5758-00311 R

LITTON SYSTEMS. INC.. d/b/a

INGALLS NUCLEAR SHIPBUILDING

DIVISION

JUDGMENT

The court having, on December 23, 1982. granted the mo-

tion of defendant to dismiss the indictment

IT IS ORDERED, ADJUDGED AND DECREED that

there be judgment herein in favor of defendant LITTON SYS-

TEMS, INC., dismissing the indictment

United States District Judge

January 7, 1983

SD. Miss. Opinton \-17

UNITED STATES OF AMERICA

Plaintiff

LITTON SYSTEMS. INC. d/b/a INGALLS

NUCLEAR SHIPBUILDING DIVISION

Defendants

Crim. No. S7S-O031. BR

United States District Court

ae Mississippi $. 2

March 1, 1983

REASONS FOR JUDGMENT

DUPLANTIER. District Judge

Litton Systems, Inc. (Litton), indicted in April of 1977 tor

allegedly making a false claim against the United States govern

ment (18 U.S.C. §2587).' has filed a motion to dismiss the indict

ment because of “inexcusable and prejudicial prosecutorial de

lav’ and the “loss and destruction of exculpatory evidence

Litton contends that, considering the delay and resulting preju-

dice, further prosecution would violate its Sixth Amendment

right to a speedy trial. Litton also urges dismissal on the basis ot

Rule 48(b) of the Federal Rules of Criminal Procedure.- For the

. $2 2).6.C. 3257 provides

Whoever makes or presents to any person or officer in the civil, mul

tary, or naval service of the United States, or to any department or agencs

thereof, any claim upon or against the United States, or any department

or agency thereof, knowing such claim to be false, fictitious, or fraudulent

shall be fined not more than $10,000 or imprisoned not more than five

vears, or both

2. Defendant does not suggest that the indictment should be dismissed

on the basis of the Speedy Trial Act. 15 U.S.C. $3161. et seq. The sanction of

dismissal is applicable only to indictments filed on or after July 1, 1980. 15

U.S.C. §3163(c), United States v. Horton, 646 F.2d 181 (5th Cir. 195]

A-15 S.D. Miss. Opinion

following reasons, the motion to dismiss the indictment was

granted.

In 1968, the Ingalls Nuclear Shipbuilding Division of Litton

entered into a contract with the United States Navy for the con-

struction of three nuclear submarines. Prior to the awarding of

the contract to defendant, the Navy conducted an investigation

to determine the manpower and facilities capability of the

Ingalls Shipyard; the documents accumulated in this investiga-

tion are referred to as “source selection documents.”

Over two years after the contract date, Litton filed a claim

with the Navy, seeking compensation for increased contract

costs which Litton asserted were made necessary by actions of

the government. After this claim was made by Litton, the Navy

conducted another investigation, this time gathering “produc-

tion audit documents” which defendant had relied on in making

its request for increased compensation. The claim was brought

before the Armed Services Board of Contract Appeals (ASBCA),

and in early 1976, after hearing sixty-nine days of testimony, the

board awarded Litton over sixteen million dollars.

Before the ASBCA ruling was handed down, the govern-

ment began a criminal investigation into allegations of fraud re-

lating to the claim made by Litton. Evidence was presented to

three grand juries, one of which expired after 18 months of in-

vestigating only ingalls Shipyard without returning an indict-

ment. For six days in April of 1977, a fourth grand jury heard a

summary by two FBI agents of the evidence before the prior

grand juries and returned a one-count indictment against the

corporate defendant only. All of these grand juries were

empanelled in the Eastern District of Virginia.

Shortly after the indictment was handed down, the United

States District Court granted a motion to dismiss the indictment

on the ground of prosecutorial misconduct during the grand jury

proceedings. Early in 1978, the United States Court of Appeals

for the Fourth Circuit reversed and remanded the case for trial.

573 F.2d 195. Later that vear, the district judge granted a de-

fense motion for change of venue and transferred the case to the

Southern District of Mississippi, where the Ingalls Shipyard is

located

S.D. Miss. Opinion A-19

A status conference was held on January 25, 1979; the par-

ties jointly agreed that the case need not be set for trial within

the 60 day period’ provided in the Speedy Trial Act (18 U.S.C.

§3161(c\(1) and (e)). An order issued after the conference al-

lowed the parties forty days to file motions, and stated that if a

party objected to a motion being heard, on the basis that the mo-

tion had already been decided by the district court in the East-

ern District of Virginia, then a hearing was to be set on the “ob-

jection” prior to any substantive action on the motion itself. By

March 19, 1979, Litton had filed several motions, and the gov-

ernment had filed objections, seeking the dismissal of all but one

of the motions. A hearing on the objections was never set by the

government; in fact, the government did not take any further ac-

tion toward prosecution for over three and one-half years, until

September 22, 1982, when the government filed a motion to set

a trial date.

During the intervening period, the only activity which

could be construed as in furtherance of the prosecution was a

meeting on December 17, 1979, provoked by defendant's attor-

ney, to discuss possible settlement. The settlement negotiations

were short-lived; on Janaury 23, 1980, Litton’s attorney wrote to

the U.S. Attorney, confirming that negotiations were ended.

The letter stated that “[i]t is understood that the parties’ agree-

ment not to take any further actions concerning the criminal

case during the pendency of settlement negotiations is termi-

nated.”

I. Speedy Trial under the Sixth Amendment

[1] The starting point for any analysis of an an alleged viola-

tion of the Sixth Amendment right to a speedy trial is the United

States Supreme Court decision of Barker v. Wingo, 407 U.S.

514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Barker sets forth a

four-part “balancing test” to be applied on an ad hoc basis when-

ever an issue concerning a breach of the speedy trial guarantee

3. The Speedy Trial Act has since been amended so that the 60 day penod

referred to ws now TO days. IS USC. §316]he)1) and (e

A-20 S.D. Miss. Opinion

is raised. Id. at 530, 92 S.Ct. at 2191. The United States Court of

Appeals for the Fifth Circuit recently discussed the Barker test

and its factors as follows:

Barker v. Wingo provides the tetrad standard against

which we must measure the elusive speedy trial perquisite:

(1) duration; (2) reason for the delay; (3) defendant's asser-

tion of the right, and (4) prejudice caused by the delay. No

one consideration is “either a necessary or sufficient condi-

tion to the finding of a deprivation of the right of speedy

trial. . . they are related factors and must be considered

together with such other circumstances as may be rel-

evant.” 407 U.S. at 533, 92 §.Ct. at 2193.

Cited States v. Greer, 655 F.2d 51, 52 (5th Cir. 1981). See also

Jamerson v. Estelle, 666 F.2d 241 (5th Cir. 1982). United States

v. Herman, 576 F.2d 1139 (5th Cir. 1978), United States v. Ed-

wards, 577 F.2d $83 (5th Cir. 1977), cert. denied, 439 U.S. 968.

99 S.Ct. 458, 58 L.Ed.2d 427 (1978). United States v. Avalos.

541 F.2d 1100 (5th Cir. 1976), Arrant v. Wainwright. 468 F.2d

677 (5th Cir. 1972).

[2] Considering these four related factors together with the

other circumstances relevant to this prosecution, we conclude

that Litton’s right to a speedy trial has been violated and that the

indictment should be dismissed

(A) Length of Delay

[3] The Sixth Amendment right to a speedy trial attaches at

the date of arrest or, in this case, indictment, and runs until the

commencement of trial. United States v. Gonzalez, 671 F.2d

441, 444 (11th cir. 1952). Because the government could not

proceed to trial until the case was transferred to Mississippi, we

consider the delay period as commencing then rather than at in-

dictment. The transfer to this district was in late 1978: the gov-

ernment first filed a motion to set a trial date on September 22,

1982. over three and one-half vears later. The government ar-

gues, and correctly so, that the length of delay sufficient to war-

rant inquiry into the remaining Barker factors is related to the

S.D. Miss. Opinion A-2]

complexity of the case; however, forty-five months is an extraor-

dinary delay by any standard. This conclusion is mandated by

the Fifth Circuit's determination in United States v. Avalos,

supra, that a 15 month delay in a complex conspiracy case “trig-

gered” the Barker test. Moreover, the government had spent

years prior to indictment compiling evidence against Litton, by

the date of indictment it should have been prepared to proceed

to trial promptly.

(B) Reasons for Delay

We now consider the government's asserted justifications,

or lack thereof, for the lengthy delay. Three general categories

of reasons for delay have been suggested by the Fifth Circuit,

each assigned a different weight of culpability: deliberate delay,

negligent delay and justified delay. United States v. Avalos,

supra; Turner v. Estelle, 515 F.2d 853 (5th Cir. 1975), cert. de-

nied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976).

We classify the period between indictment and March 19,

1979, as justified delay. It was during that interval that defen-

dant’s motion to dismiss the indictment for prosecutorial mis-

conduct before the grand jury was granted by the district court,

the district court's decision was reversed by the Court of Ap-

peals, and the case was remanded to the district court in Virginia

and then transferred to this district in Mississippi. The date

March 19, 1979. is significant because it was at that point that all

motions and objections thereto had been filed. It was then the

government's obligation to take steps to bring the case to trial.*

4. On March 29, 1979, the government seni a letter to the trial judge stat-

ing that it had filed its objections to Litton’s motions, and it “look{ed] forward

to receiving further directions from the court as to a hearing date.” It is well

recognized that the primary responsibility for moving a criminal case to trial

lies with the prosecution. Barker t. Wingo, supra, 407 U.S. at 527, 92 S.Ct. at

2190. Even in those cases in which delay is related to actions taken by the

court, and this is not such a case, the government still has a responsibility to

minimize the delay. United States v Vispi, 545 F.2d 328 (2d Cir. 1976), United

States t New Buffalo Amusement Corp., 600 F.2d 368 (2d Cir. 1979), United

States t Jones, 524 F.2d $34.D.C Cir 1975). All that the government needed

to do in this case was to file a motion to set a hearing. Instead, the government

took no action for well over three vears

A-22 S.D. Miss. Opinion

Although this period can be justified, the government, cogni-

zant of the amount of time that already passed in this “justified

period’, should have moved all the more expeditiously there-

after. Both lengthy prior periods, the first between the alleged

criminal activity and indictment, and the second between in-

dictment and March 19, 1979, amplify the unreasonableness of

any subseque..< periods of unjustified delay.

From March 19, 1979, until 42 months later, September

22, 1982, when the motion to set a trial date was filed, the gov-

ernment took no action whatsoever. The court's other commit-

ments would, of necessity, require several additional months of

delay between the motion to set a trial date and the commence-

ment of trial, especially considering the anticipated length of

trial.> Thus the period of prosecutive inaction is more appropri-

ately estimated at four years. As noted earlier, the constitutional

right to a speedy trial attaches at indictment and runs until trial,

not merely until the date on which the government moves to set

a trial date. United States v. Gonzales, supra.

The government has offered various explanations for sev-

eral segments of this four year period. It would serve no useful

purpose to discuss all of these in detail, but some discussion is

necessary to demonstrate that the government has merely ex-

plained, but not justified, the long delay.

The government's primary explanations for the delay relate

to internal problems within the Department of Justice. In par-

ticular, an attorney whom the government considered to be an

essential part of its trial team had gone into private practice in

1978 and had difficulty in arranging his schedule to take part in

the Litton litigation. A related “problem” was that serious dis-

cussions were being carried on within the Department of Justice

as to whether or not the prosecution of Litton should be pur-

sued. Such explanations of course do not justify the deprivation

of the right to speedy trial, especially since Litton was unaware

of the government's “problems.” As far as Litton knew, or any

other reasonable defendant would have believed, the case had

5. Counsel estimated that the duration of trial would be between three

and six months

$.D. Miss. Opinion A-23

been abandoned by the United States. Certainly the record sup-

ports the conclusion that the government had abandoned the

prosecution and decided to resurrect it shortly before the mo-

tion to set a trial date.°

The court's impression that the government's explanations

were not excuses nor ‘justified reasons for delay” was confirmed

at oral argument by the government's admission that in fact no

action was taken because the prosecution was satisfied with the

status quo and with not proceeding to trial.’

Additionally, while under certain circumstances complexity

may justify a longer than normal delay, the government no-

where suggests that the reason for the delay is the complexity of

this case. Admittedly, the government's desire to have a former

government attorney return from private practice to try the case

is related to its complexity. However, the Justice Department

never requested that attorney to rearrange his commitments in

private practice to accommodate to a speedy trial of Litton. At

any rate, as already noted, the government admitted that the

6. The government's decision to reassemble its trial team was not made

until May 24, 1982, and not announced until September 22, 1982, when the

motion to set trial was filed. There is strong evidence that the May 24th deci-

sion was made only after pressure upon the Justice Department from promi-

nent political figures. A letter dated January 13, 1982, was sent to Attorney

General William French Smith by Admiral Hyman Rickover, complaining that

the prosecution of Litton had “lain dormant” and that “the Justice Department

is systematically closing down these investigations.” Admiral Rickover notes

the obvious: “|w]ith the passage of time, the likelihood of prosecution becomes

more remote " Another letter, this one by Senator William Proxmire

dated February 24, 1982, requests that Attorney General Smith provide

[Proxmire] with a status report of [the Litton case] and together with an expla-

nation of why [it has) dragged on for so long and why [it is] being dropped.”

The fact that it appeared to Senator Proxmire and Admiral Rickover that the

Litton prosecution was quite likely abandoned demonstrates that Litton’s simi-

lar belief was justified

7. Frank W. Dunham, Jr., Special United States Attorney, Eastern Dis-

trict of Virginia, in responding to a suggestion by the court, stated

MR. DUNHAM, Your Honor, that impression that you just stated I

believe more succinctly states the proposition than I could put it) Both

sides were perfectly satisfied with the fact that nothing was moving tor-

ward

\-24 S.D. Miss. Opinion

true reason for the delay was that it was “perfectly satisfied with

the fact that nothing was moving forward.” That the long delay

was deliberate can be determined entirely from the following

colloquy during oral argument, between the government's spe-

cial prosecutor and the court

THE COURT: Well, vou just) got finished — telling

me that all the Government had to do was ask you and

you would have been “Johnny on the spot”

MR. DUNHAM: I said that I would have attempted—I

just told you, Your Honor, I said I would have attempted to

organize my schedule in such a way that I could have ac-

commodated them

THE COURT. | understand that

MR. DUNHAM: And I believe | made myself clear, Your

Honor, that it is not something that I had complete control

over. Thad Judges in the District of Columbia and Eastern

District of Virginia to deal with

THE COURT. Nobody suggested that vou had that. What

lin saving is that no attempt ever was made to mesh those

schedules, and vou have told me that. and ft understand

that. The Government never asked vou to accommodate to

an earlier trial date in this matter

VIR. DUNHAM. Thats true Your Hono?

THRE COURT: tt sat still and said we're satisfied the way

things are going

MIRO DUNHAM. Thats exacth—Now that’s

THE COURT. That's it

MRO DUNHAM. TP dont quibble with that at all Your

Honor Thats correct

THe COURT. Now the problem is. vou know. how does

that mpheate the Defendants rahts under the constitu.

thon

\ final justification offered by the government for the fom

vear delay as that during that period the government and Litton

entered into settlement negotiations. and apparently struck an

S.D. Miss. Opinion A-25

understanding that the criminal prosecution would not move

forward during the ongoing discussions. Review of the record

shows that the government is correct. that discussions did occur

at the request of the defendant for exactly five weeks? of the four

vear period. The parties met on December 17, 1979. agreeing

that prosecution would be stayed during negotiations. the talks

broke off on January 23, 1980. On that date a Litton attorney

notified the government by letter that their understanding con-

cerning a stay of the criminal prosecution was terminated. Be-

cause the settlement negotiations involve only an insigificant

part of a substantial period of delay, the unjustified nature of the

total delay is unaffected. Even if the negotiations had occurred

over a longer period, the time spent in settlement discussions

should weigh against the government. Settlement negotiations

can be analogized to the process of plea bargaining, the period

tor which has been held to weigh against the government. “{I}f

the government wishes to bargain _ it may but it should do

so mindful of the risks which it thereby assumes of dismissed in-

dictments for unconstitutional delay.” United States ve. Carini.

562 F.2d 144. 149 (2d Cir 1977). See also United States v. Rob-

erts, 315 F.2d 642 (2d Cir. 1975

Clearly, the reasons for the delay are not “justified”. in-

deed, we categorize the delay as “deliberate”. not merely “neg:

ligent.” Turner. Estelle. supra. United States v. Avalos, supra

Neat categorizations of previous decisions do not apply to the

present extraordinary situation in which the government admits

that an excessive period of inaction was the result of governmen-

S During this period of negotiations. defendant's attornes sent a lengths

letter toa government attornes concerning specifics of settlement possibilities

The letter includes a comment that “[s)taleness is to Litton’s benefit” If by

referring to this letter, the government implies that its delay was justified. be-

cause it appeared that Litton was inno hurry to complete the litigation. the

argument is rejected: Taken im the context of the entire letter, Litton was sim-

ply trying to persuade the government that settlement would be to the govern-

ments advantage In any event. the letter sent by Litton’s attornes less than

three weeks later terminating any understanding that the parties would take no

further action certainly sufficed to remstate. if necessary. Litton’s speedy trial

rights

A-26 $.D. Miss. Opinion

tal complacency. Surely such a conscious, intentional decision

not to proceed presents more than a negligent or neutral reason

for delay. The decision not to seek a trial date for nearly four

years was deliberate’, and, thus, weighs very heavily against the

government.

Not surprisingly, the Supreme Court in Barker v. Wingo,

supra, 407 U.S, at 527, 92 S.Ct. at 2190, placed the responsibil-

ity for bringing a criminal prosecution to trial squarely upon the

houlders of the prosecution:

A defendant has no duty to bring himself to trial: the

State has that duty as well as the duty of insuring that the

trial is consistent with due process. Moreover, for the rea-

sons earlier expressed, society has a particular interest in

bringing swift prosecutions, and society's representatives

are the ones who should protect that interest.

Although rarely will a defendant be anxious to have himself

brought to trial, the Court nevertheless concluded that a consid-

eration to be weighed along with the other factors was whether

defendant had asserted the speedy trial right.

Under the unusual circumstances of this case, Litton’s con-

duct was sufficient to constitute its assertion of its Sixth Amend-

ment speedy trial right. If nothing else, the letter to the pros-

ecutor dated January 23, 1980, in which the defendant's counsel

stated clearly that the agreement by which the government

would not pursue the criminal prosecution during the pendency

of settlement negotiations was terminated, put the government

on notice that thereafter defendant intended to assert whatever

right it had quo ad prosecutive delays. There is no other reason

for the statement in the letter. It is significant that this letter was

sent early in the four vear period of unexcused government inac-

4. Although the government's delay was not deliberate in the sense that it

was motivated by a desire to hamper Litton s defense, delaving the decision to

revive the prosecution until May of 1982. and failing to advise Litton for an

additional four months thereafter, had the same effect

SD. Miss. Opinion A-27

tion. We conclude that defendant's speedy trial right was timely

urged. See generally United States v. Greer, supra; United

States vu. Herman, supra.

Once settlement negotiations between the government and

Litton ceased in January of 1980, there was no further contact

between the parties until 32 months later, when the govern-

ment filed a motion to set a trial date. The government con-

ceded in its memorandum that during a lengthy period it seri-

ously considered abandoning the prosecution.

Certainly, it was reasonable for Litton to have concluded

that the indictment was not being pursued. Under the circum-

stances, Litton should not be charged with the responsibility of

taking any further action to bring the criminal charge against it

to trial

The government argues that Litton’s agreement on January

25, 1979, that the case need not be set for trial within the

Speedy Trial Act 60-day period, somehow waived Litton’s right

to assert a Sixth Amendment violation. Assuming that this

agreement did in fact act as a continuing waiver of the defend-

ant’s Speedy Trial Act rights, which is very doubtful.'" it cer-

tainly did not affect Litton’s constitutional interests. See 18

U.S.C. $3173." As the Supreme Court has often stated, the

waiver of a constitutional right is not to be inferred:

The Court has defined waiver as “an intentional relin-

quishment or abandonment of a known right or privilege.”

Johnson v. Zerbst, 304 U.S. 458, 464, 58 §.Ct. 1019, 1023,

$2 L.Ed. 1461 (1935), Courts should “indulge every reason-

able presumption against waiver,” Aetna Ins. Co. v. Ken-

nedy: 301 U.S. 389, 393. 57 §.Ct. 809, $12, 81 L.Ed. 1177

(1937), and they should “not presume acquiescence in the

recent case indulging every reasonable presumption against waiver of a Speedy

Trial Act nht. and holding that if a waiver is found, the extent of the waiver

should be interpreted narrowly

No provision of this chapter [15 U.S.C. §§3161 et seq | shall be inter-

preted as a bar to any claim of denial of speedy trial as required by amend-

ment VI of the Constitution

A-25 S.D. Miss. Opinion

loss of fundamental rights.” Ohio Bell Tel. Co. v. Public

Utilities Comm'n, 301 U.S. 292. 307. 57 S.Ct. 724. 731. 81

L.Ed. 1093 (1937

Barker v. Wingo, supra, 407 U.S. at 525-6, 92 §.Ct. at 2189-

2190

Litton did not waive the protection of the Sixth Amend-

ment, but instead asserted its right to a speedy trial, at least as of

January, 1950

D) Prejudice Caused By The Delay

In United States v. Avalos, supra, at 1116, the Fifth Circuit

enumerated three principles applicable to the speedy trial factor

of “prejudice”:

First, a showing of actual prejudice to the conduct of

the defense will weigh heavily against the government and

may lead to dismissing the indictment even when the three

remaining factors are not weighted heavily in favor of the

accused, When a showing of actual prejudice is conjoined

with a lengthy delay by the government that is unexplained

or deliberate, then a defendant states a compelling case for

denial of speedy trial. See Arrant v. Wainwright, supra,

468 F.2d at 683

Second, where the government's lengthy delay is

unexcused or purposeful, in the sense of a deliberate delay

to gain tactical advantage, the government's delay is prima

facie prejudicial. The government will have the burden of

demonstrating that the defendant has not been prejudiced

by the delay. See Murray v. Wainwright, supra, 450 F.2d

at 471

Third, when the three other elements of Barker's

weighing and balancing test are heavily weighed in favor of

the accused, the accused need demonstrate no prejudice at

all. “Prejudice — either actual or presumed — becomes to-

tally irrelevant.” Hoskins v. Wainwright, supra, 485 F.2d

at 1192. See Prince v. State of Alabama, supra, 507 F.2d at

706-07

S.D. Miss. Opinion A-29

There can be no doubt that the first two elements of Bark-

ers ‘weighing and balancing test”, duration and reason for the

delay, are very “heavily weighted” in favor of the accused

While there is no evidence that the delay was “purposeful. in

the sense of a deliberate delay to gain tactical advantage” the de-

lay was unexcused, and this suffices under Avalos to place upon

the government the burden of “demonstrating the lack of preju-

dice to defendant.” Id. The government has not met this bur-

den.

Alternatively, we conclude that the third principle of

Avalos is applicable and that therefore prejudice is “totally irrel-

evant. While the third Barker v. Wingo tactor. “assertion of the

right’ is a closer call than the first two (duration and reason for

delay), it also is “weighted” in favor of the accused. We hold that

the total “weight” of the three factors is indeed sufficiently

“heavy” in favor of the accused to make applicable the third

principle of Avalos and render prejudice irrelevant

Finally, for the sake of completeness, we hold that Litton

has demonstrated “actual prejudice to the conduct of the de-

fense.” Id.

The three types of prejudice that a speedy trial seeks to pre-

vent were outlined by the Supreme Court in Barker v. Wingo,

supra, 407 U.S. at 532, 92 S.Ct. at 2193:

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 pos-

sibility 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 en-

tire svstem

Only a corporate defendant is indicted; hence the first of

these interests is not a concern here. The second, relating to

“anxiety. is a consideration only in that several Litton person-

nel have been implicated through the government's answer to a

request for a bill of particulars. Although the Barker test was not

designed to protect: non-defendants, the Court. stressed in

Barker that its list of four factors was not exclusive, and, there-

A-30 S.D. Miss. Opinion

fore, the interests of collaterally implicated individuals in a

speedy trial should not be totally overlooked.

Litton emphasizes prejudice on the basis of the “most seri-

ous’ of the speedy trial interests of a defendant, impairment of

its defense. In particular. Litton argues that several key wit-

nesses have died during the unexcused delay, and documents

vital to the defense have been lost by the government. Before

examining these complaints, we note the seeming truism that

the risk of prejudice is great in a complex case based on old facts.

The government agrees that the present case involves an intri-

cate set of circumstances based upon facts which occurred over

fifteen vears ago. Even if much of the delay in this case is viewed

as justified, the fact that long periods of justified delay have oc-

curred simply increases the possibility of serious prejudice aris-

ing during periods of unjustified delay.

The defendant makes a strong argument with regard to the

importance of one of the deceased witnesses, David Adams, who

died during the period of deliberate governmental delay, in May

of 1980. The government alleges that certain manpower charts

were submitted to support Litton’s false claim. These charts

were prepared by Mr. Adams. The government does not deny

the importance of Mr. Adams, but asserts that he was a govern-

ment witness and his testimony is preserved by grand jury tran-

scripts. Not surprisingly, defendant is not comforted by that ex-

planation. The fact that such testimony, elicited without

cross-examination, without representation by counsel, and with-

out regard for the rules of evidence, may be admitted at trial

compounds the problem of potential prejudice. It is the defend-

ant, not the government. which is prejudiced by the

unavailability of the witness. Moreover, defendant stresses that

the now deceased witness would have testified as to a number of

matters favorable to defendant, not covered in his grand jury

testimony. An affidavit of one of the attorneys familiar with the

situation provides specifics as to that exculpatory testimony.

Several boxes of exculpatory documents, of two different

categories, have been lost while in the government's possession.

The production audit documents lost were those materials accu-

mulated by the Navy in 1970 when Litton filed its claim against

S.D. Miss. Opinion A-31

the government. The missing source selection documents are

the government's own documents which were the product of the

Navy's 1968, pre-contract investigation of the Ingalls Shipyard’s

capabilities. The conclusion that compelling Litton to stand trial

without these lost documents would be substantially prejudicial

is not as clear as with respect to the deceased witness, Adams.

However, considering all the circumstances, prejudice can rea-

sonably be inferred.

While denying the existence of prejudice, the government

argues that even if prejudice is apparent, the indictment should

not be dismissed pre-trial, because the extent of the prejudice

cannot be determined until the court has heard the complete

factual development. Although in many cases it may be difficult

to judge adequately the validity of a speedy trial complaint of

prejudice prior to trial, “an accused who does successfully estab-

lish a speedy trial claim before trial will not be tried.” United

States v. MacDonald, 435 U.S. 850, 861 n.8, 95 S.Ct. 1547,

1553 n. 8, 56 L.Ed.2d 15 (1978). See also United States v. Rob-

erts, supra; United States v. Salzmann, 417 F.Supp. 1139

(E.D.N.Y.), affd, 548 F.2d 395 (2d Cir. 1976). Even if pre-trial

dismissal is unusual, it is particularly appropriate in this most

unusual case. The expected length of this trial is three to six

months. Proceeding with trial under the circumstances of this

prosecution is impractical, considering the immense expense.

both public and private, that trial would entail. Delaying a deci-

sion as to a speedy trial violation until after trial is also

undesirable from the standpoint of judicial economy.

Il. Speedy Trial under Rule 45(b) of the Federal Rules of

Criminal Procedure

The secondary ground for dismissal raised by defendant is

based on Rule 48(b) of the Federal Rules of Criminal Procedure.

which provides as follows:

If there is unnecessary delay in presenting the charge

to a grand jury or in filing an information against a defend-

ant who has been held to answer to the district court, or if

there is unnecessary delay in bringing a defendant to trial,

4-32 SD. Miss. Opinion

the court may dismiss the indictmen:. information or com-

plaint

The extent of a district judge's discretion under this rule is

unresolved in the Fifth Circuit, but there is no question that dis-

missal pursuant to Rule 48(b) is required in the event of a consti-

tutional deprivation of the Sixth Ameadment right to speeds

trial. United States v. Hill, 622 F.2d 900 (5th Cir. 1980). United

States v. Noll, 600 F.2d 1123 (5th Cir.1979). United States +

Gorthy, 550 F.2d 1051 (5th Cir.), cert. denied, 434 U.S. 534, 98

S.Ct. 121, 54 L. Ed.2d 95 (1977). Some circuits have interpreted

Rule 45(b) as giving a district court the authority to dismiss in

situations not involving a constitutional violation, the rule is a

restatement of a court's inherent power to dismiss for want of

prosecution. See, e.g., United States v. Dreyer, 533 F.2d 112

(3d Cir.1976), United States v. Correia, 531 F.2d 1095 (1st

Cir. 1976), Notes of the Advisory Committee on Fed. R.Crim. P.

48(b). In deciding whether dismissal is justified under this rule,

a court should consider the same factors relevant to a constitu-

tional decision, as outlined in Barker v. Wingo, supra, but im-

pose a stricter standard. 3A C. Wright, Federal Practice and

Procedure, §514 (1982). Dismissal may be with or without preju-

dice. Id.

The government disputes that dismissal would be proper

here, arguing that the rule should be exercised only after the

government has been forewarned of the sanction. The govern-

ment argues that this view of the rule has been adopted in the

Seventh and the Ninth Circuits: United States v. Clay, 481 F.2d

133 (7th Cir. 1973); and United States v. Simmons, 536 F.2d 827

(9th Cir.1976). In actuality, the Clay decision, relied on in

Simmons, held that “|a|bsent such forewarning, or some other

showing justifying an exercise of discretion _ it was error to

dismiss the indictment simply because unnecessary delay of ap-

proximately eight months occurred ” $81 F.2d at 138. Clay

would not require forewarning here, because “there is some

other showing justifving an exercise of discretion” — the exces-

sive period of unjustifiable delay. In any event, even if Clay, in-

volving an eight month delay, and Simmons, four months. did

SD Miss Opinion A353

support the governments position. those cases would hardly be

persuasive in this situation where the delay approaches tour

vears

Obviously. because this court has already found a constitu:

tional deprivation of the speedy tral guarantee. a 4b) dismissal

is mandated. In the event the delay in the present case had been

found to have been less than constitutional in dimension. this

court would have cxercised its discretion and granted Litton’s

motion with preiudice to the government. The length of delay

and the reasons therefor are, at the least. intolerable. if not un-

constitutional

II. Conclusion

We would ordinarily avoid the Sixth Amendment issue and

base the decision only on the non-constitutional ground. Rule

43(b). However, because the considerations in applying either

Rule 48(b) or the Sixth Amendment right to speedy trial are so

similar, and because the parameters of the Rule are not clearly

defined, we dismiss the indictment on both grounds

4-4 Fourth Circuit Opinion

UNITED STATES COURT OF APPEALS

For THE Fourtu Cracurt

No. 77-2191

UNITED STATES OF AMERICA,

Appellant,

LITTON SYSTEMS, INC., d/b/a INGALLS

NUCLEAR SHIPBUILDING DIVISION,

Appellee.

APPEAL FROM THE UNITED STATES Districr COURT FOR

THE EASTERN DISTRICT OF VIRGINIA, AT ALEXANDRIA.

ALBERT V. BrYAN, JR., District JUDGE.

Argued February 7, 1978 Decided April 4, 1978

Before WinTER, BuTZNER and RussELL, Circuit Judges

William B. Cummings, United States Attorney (Frank W.

Dunham, Jr., Assistant United States Attorney, Joseph A.

Fisher, III, Assistant United States Attorney and Sara

S. Beale and Elliott Schulder, Department of Justice on

brief) for appellant; Bruce W. Kauffman ( David H. Pit-

tinsky, Stephen J. Mathes, Lawrence D. Berger, Dilworth,

Paxson, Kalish, Levy & Kauffman; W. W. Koontz, John S.

Stump, Boothe, Prichard & Dudley on brief) for appellee.

Fourth Circuit Opinion A-35

ButzneR, Circuit Judge:

The United States appeals from an order of the dis-

trict court dismissing a one count indictment against Litton

Systems, Inc., because of prosecutorial misconduct during

pre-indictment negotiations between the parties. We

vacate the order of dismissal and remand the case for

further proceedings.

In 1972 the Ingalls Nuclear Shipbuilding Division of

Litton Systems, Inc., filed a claim with the Navy for ap-

proximately $30 million in connection with a contract to

construct nuclear submarines. The company appealed an

adverse decision by the Navy contracting officer to the

Armed Services Board of Contract Appeals, which in April,

1976, awarded Litton more than $16 million. Both parties

agreed not to ask for reconsideration of the award.

In March, 1975, after the Board had concluded its

hearings but before it announced its decision, the district

court impaneled a federal grand jury to investigate Litton’s

claims against the Navy. At a conference with the assist-

ant United States attorneys handling the investigation,

Vincent J. Fuller, counsel for Litton, inquired whether

there might be an alternative to the criminal investigation.

One of the assistants responded that the government did

not presently have enough evidence to make such a de-

cision. Fuller also asked for advance notice if they de-

cided to seek an indictment because he wanted a chance

to attempt to dissuade the government from proceeding.

Toward the end of the grand jury's term, the govern-

ment lawyers concluded that although the falsity of Lit-

ton’s claims could be proved, the evidence of criminal

intent was insufficient to establish guilt beyond a reason-

able doubt. They therefore decided to let the term expire

4-36 Fourth Circuit Opinion

without seeking an indictment and to continue the in-

vestigation, exploring several promising leads that would

enable them to prosecute the corporation rather than indi-

vidual employees. About the same time, an attorney paid

by Litton to represent employees before the grand jury

suggested to Frank W. Dunham, Jr. the Assistant United

States Attorney in charge of the investigation, that some-

one should talk to Fuller about alternatives to criminal

prosecution. Dunham knew that this attorney commu-

nicated frequently with Litton’s counsel and, recalling

Fuller's earlier requests, he decided to confer with Fuller.

On September 9, 1976, Dunham explained to Fuller

that the government had evidence that Litton’s claim was

talse but that it had not yet found sufficient proof of will-

fulness and criminal intent. He told Fuller that no indict-

ment would be returned but that the investigation would

have to continue. Dunham said that he saw a possible way

to resolve the controversy but was “reluctant to discuss it

without assurances first being made that the discussions

would not be taken as a threat or treated as other than a

good taith attempt to resolve the intent question.” Fuller

agreed to this stipulation, encouraged Dunham to proceed,

and said that he would terminate the talks any time he

deemed them inappropriate or improper. Dunham then

proposed that

\ Both Litton and the Navy would petition to

reopen the [Armed Services Board of Contract Ap-

y™ als pro« eeding

B Both Litton and the Navy would join in ap-

plication to the Court for a [Federal Rule of Criminal

Procedure 606 Order to permit inspection by Litton

and the Navy of grand jury materials for use by both

parties im the reopened | Board! proceedings

Fourth Circuit Opinion A-37

C. The Government would not assert fraud as a

defense in the Court of Claims to any final judgment

for Litton in the [Board] nor would it initiate any

civil fraud suits;

D. The criminal investigation would be ter-

minated.

Elaborating on this outline, Dunham emphasized that,

upon hearing whatever additional evidence either side

wanted to introduce, the Board could adjust its award up

or down or let it stand.

Fuller found the proposal reasonable, describing it as

a “breath of fresh air,” and a few days later he advised

Dunham that Litton was interested in discussing it. Ata

second meeting, Dunham disclosed the evidence of the

falsity of Litton’s claim, and the parties discussed the

mechanics of reopening the proceeding before the Board

and getting the corporate and governmental approvals

necessary to implement the plan. Two days later, how-

ever, Glen McDaniel, the chairman of Litton’s executive

board, who had not conferred with the government attor-

neys, met with Deputy Attorney General Harold R.

Tyler, Jr.. complaining that Litton was being threatened

with indictment if it retused to reopen the Board proceed-

ings. Fuller, upon learning of this complaint from Dun-

ham, agreed that it violated their understanding concern-

ing discussion of the proposal and offered to advise the

Deputy Attorney General of this. After inquiring into the

settlement negotiations, the Deputy Attorney General

wrote Litton that he found nothing improper in them. He

suggested that Littons lawyers contact the government

attorneys if further negotiations were desired.’ At Litton's

| The Deputy Attornes Generals letter of Or tober 7 1976

to MicDamel stated

Thus letter is in response to the concerns vou ransed at our

meeting of September 15. 1976 (Contd on p Al?

A-35 Fourth Circuit Opinion

request, the parties again conferred, but on November 1,

1976, Litton rejected the proposal.

The government's investigation continued throughout

the final months of 1976. On January 17, 1977, Assistant

Attorney General Richard Thornburg requested the United

States Attorney to present the matter to a new grand jury

for the purpose of seeking an indictment. Attorney Gen-

eral Griffin Bell approved prosecution of the case on Feb-

ruary 7, 1977.

Dunham honored Fuller's request and advised him of

the decision to indict. In response, Litton expressed a

desire to avoid prosecution and to return the matter to the

Board along the lines of the government's proposal. Dun-

ham indicated that the prosecutors were now opposed to

such a disposition but that he would forward any proposal

from Litton to the Department of Justice for review. At

Litton’s request, the Attorney General, his principal assist-

ants for matters pertaining to criminal prosecutions and

fraud, and the United States Attorney and his assistants

met with Fuller, McDaniel, and two members of Litton’s

board of directors. At the conclusion of this conference the

Attorney General found no justification for terminating the

1. (Cont'd.)

I have met with those in the Department of Justice who have

been handling the investigation of Litton Industries. I see no

compelling evidence that the settlement discussions entered

into between Litton and the Government were anything other

than good faith attempts. on both sides, to explore freely all

canatille avenues by which this investigation could be brought

to a conclusion satisfactory to all concerned. The Department

lawyers involved in these talks. | am told, made clear to Lit-

ton'’s lawyer, Mr. Fuller. at the outset of the discussions that

they do not possess authority to settle without approval from

their superiors in the Department. this is in fact the case in all

such settlement discussions

| would suggest that your outside counsel. Mr. Fuller. contact

our Department attorneys with a view to resuming these ex-

ploratory discussions, so that this matter may again proceed

on course

Fourth Circuit Opinion 4-39

prosecution. The next day the grand jury returned the

indictment. Litton, represented by new counsel, subse-

quently moved to dismiss it

The district court granted Litton’s motion. It found

that the government's proposal constituted an implied

threat of indictment designed to coerce Litton into giving

up its award and that, when Litton refused. the govern-

ment retaliated by obtaining the indictment. The district

court acknowledged that the bargain could arguably have

been justified if the government had made its proposal

after indictment. Nevertheless. it held that the govern-

ment's use of the grand jury as a bargaining tool to upset

the Board's award violated Litton’s substantive due process

right to have the finality of its civil claim attacked only

within the statutory and regulatory schemes established

for that purpose. Although Fuller did not testify. the

court discounted his waiver of objections on the ground

that the situation was so inherently coercive that no

prudent attorney could have refused to entertain the

proposal.

This case is governed by the principles expressed in

Bordenkircher \. Haves. 98 S. Ct. 663 (1978). The dis-

trict judge. it should be noted. did not have the benefit of

that opinion, for it was published after he granted Litton’s

motion to dismiss the indictment. Hayes. a state prisoner.

had been indicted for uttering a forged check. During

plea negotiations. the prosecutor offered to recommend a

five year sentence if Haves would plead quilty; if Haves

would not plead guilty. the prosecutor threatened to indict

him as a recidivist. for which the mandatory penalty was

life imprisonment. Have. refused the offer. and the pros-

ecutor obtained the second indictment. On his plea of not

A-40 Fourth Circuit Opinion

guilty, Hayes was convicted of the charges in both indict-

ments and sentenced to imprisonment for life.

Hayes—like Litton—relied primarily on North Caro-

lina v. Pearce, 395 U. S. 711 (1969), Blackledge v. Perry,

417 U. S. 21 (1974), and their progeny. These cases hold

that after a defendant has succeeded in having his initial

conviction vacated, the due process clause protects him

from the vindictive imposition of an increased sentence on

retrial and from fear of retaliation by either a judge or

prosecutor. The Supreme Court, however, refused to

apply these cases to Hayes’s situation. The Court recog-

nized that the prosecutor's threat to procure another indict-

ment was designed to deter Hayes from exercising his right

to plead not guilty. It emphasized, however, “that the due

process violation in cases such as Pearce and Perry lay not

in the possibility that a defendant might be deterred from

the exercise of a legal right, . . . but rather in the danger

that the State might be retaliating against the accused for

lawfully attacking his conviction.” Bordenkircher v.

Hayes, 98 S. Ct. at 667-68. It concluded that “in the ‘give-

and-take’ of plea bargaining, there is no such element of

punishment or retaliation so long as the accused is free to

accept or reject the prosecutor's offer.” 98 S. Ct. at 668.

Applying these principles, the Court sustained Hayes’s

conviction.

Litton’s situation is essentially like Hayes'’s. Although

the prosecutor did not threaten to indict Litton if it re-

jected the proposal, he said that the fraud investigation

would be continued to determine whether Litton should

be indicted. Litton’s Board award was not final; even if

Litton rejected the proposal, the government could attack

the award for fraud in the Court of Claims. 28 U. S. C.

§ 2514; see S & E Contractors, Inc. v. United States, 406

U.S. 1, 15-17 (1972). Nevertheless, Litton was asked to

forego a right as a price for the government's termination

Fourth Circuit Opinion A-41

of the investigation. Specifically, Litton was asked to give

up its right to bar the Board's reconsideration of its claims.

The district court did not find that Deputy Attorney

General Tyler, Assistant Attorney General Thornburg, or

Attorney General Bell. who made the critical decisions in

this case. were vindictive or retaliative. The absence of

such a finding is proper because the evidence would not

support a contrary ruling.” Instead, the district court con-

cluded that it was unlawful for the prosecutor to use the

implied threat of indictment to deter Litton from exercis-

ing a legal right. But this is precisely what Hayes allows a

prosecutor to do when he is bargaining with the potential

defendant of a threatened indictment.

Litton protests that Hayes is distinguishable because

the government lacked proof that Litton had committed a

crime when the prosecutor offered his proposal. We do

not believe this distinction is significant. The court of

appeals granted Hayes a writ of habeas corpus in part

because the prosecutor had known about Hayes's recidi-

vism when he obtained the initial indictment charging

uttering a forged check. This prior knowledge, the court

of appeals reasoned, justified a conclusion that vindictive-

ness alone motivated the prosecutor in obtaining the sub-

sequent indictment. See, Haves v. Cowan, 547 F. 2d 42,

44 (6th Cir. 1976). The Supreme Court's recognition of

the prosecutors prior knowledge clearly put to rest the

court of appeals’s notion that this factor supported grant-

ing the writ. Indeed, in Blackledge v. Perry, 417 U. S. 21,

29 n. 7 (1974). the Court explained that a prosecutor's

inability to proceed on a more serious charge at the time

2. Litton insists that an Assistant United States Attornes’s re-

mark—“Litton bought this indictment” —conclusively demonstrates

vindictiveness. There is no evidence. however, that the Assistant

who was not in charge of trving the government's case. reflected

the views of the officials in the Department of Justice who were

responsible tor instituting the criminal prosecution

A-42 Fourth Circuit Opinion

of the initial indictment would indicate that a subsequent

indictment was not motivated by vindictiveness. Accord-

ingly, we cannot accept Litton’s argument that Hayes is

inapplicable. We do not believe that the Court intended

to confine plea bargaining to those situations where the

prosecutor possesses irrefutable proof of the most serious

crime tor which a defendant is ultimately prosecuted. A

prosecutor's bargaining position should not be so circum-

scribed. This is not to say, however, that a prosecutor can

employ deceptive tactics about the strength of his case

to induce a bargain.

In this case the government did not engage in any

deception. The attorney in charge of presenting the case

to the grand jury candidly told Litton’s attorneys that while

the government had proof of false claims, it had not yet

obtained sufficient evidence of willfulness and criminal

intent to warrant prosecution. The government's lack of

knowledge about criminal intent and the possibility of

further investigation were factors that Litton could weigh

in deciding whether to accept the government's proposal.

The prosecutor's candor in revealing the weakness of the

government's case dispels any notion of vindictiveness.

Litton also contends that the rejection of its belated

acceptance of the government's proposal manifests vin-

dictiveness and renders Hayes inapplicable. We find no

merit in this argument. Hayes does not require a prose-

cutor to keep an offer of a bargain open indefinitely after

it has been rejected. Again, we believe that a prosecu-

tors bargaining position should not be so closely circum-

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