# Petition — Litton Systems, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1322%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 466 U.S. 973 ## Text | 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 t 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, 10 1] 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 17 30 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 Vi 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 2 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 4 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. ) 5 “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 1 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 10 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 1] 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 12 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) 13 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 l4 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) 15 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 16 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) Is 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) 19 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 20 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- 21 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 a4 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 tv wt 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 26 “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 2s 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 29 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 30 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 e: 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 adm [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1322%3A1. Public record. Not legal advice.