Petition for Writ of Certiorari — United States v. Loud Hawk

84-1361 (") Ofee "Supreme Cour, US)

FEB 26 1985

No.

wie |. GTEVAS.

CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER

Vv.

KENNETH MOosEs LouD HAWK, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REX E,.LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

BRUCE N. KUHLIK

Assistant to the Solicitor General

KATHLEEN A, FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

"BEST AVAILABLE COPY (aaa

QUESTIONS PRESENTED

1. Whether time consumed by appellate review

should be excluded from the length of delay relevant

under the Speedy Trial Clause of the Sixth Amend-

ment, where the government successfully appealed

pursuant to 18 U.S.C. 3731 from orders dismissing

the indictment and suppressing evidence, and re-

spondents were free of all restrictions on their liberty

during the appeals.

2. Whether delay attributable to respondents’ in-

terlocutory appeal should be considered in evaluating

respondents’ speedy trial claim.

3. Whether, even if time on appeal should be in-

cluded under the Speedy Trial Clause, respondents’

right to a speedy trial has been violated under the

test of Barker v. Wingo, 407 U.S. 514 (1972).

(I)

II

PARTIES TO THE PROCEEDING

In addition to the parties shown in the caption,

defendants Russ James Redner, Dennis James Banks,

and Darlene Pearl Nichols, also known as KaMook

Banks, were appellees below and are respondents

herein.

Charges against defendant Leonard Peltier were

severed from this action and later dismissed. De-

fendant Anna Mae Aquash is deceased.

TABLE OF CONTENTS

Page

EE el clas 1

i uenpenesnnecs 2

Constitutional provision involved ............................ saniaas 2

i seessupeoensonnena 2

Reasons for granting the petition ...............--.00.-00-0....... 12

a eeuneueusnecoconues 28

TABLE OF AUTHORITIES

Cases:

Arnold v. McCarthy, 566 F.2d 1877 _...................... 14

Atkins v. Michigan, 644 F.2d 543, cert. denied, 452

LS AS TT 23

Barker v. Wingo, 407 U.S. 514 ......... 10, 13, 18, 21, 22, 24,

25, 26

Beavers Vv. Haubert, 198 U.S. 77 .....................-.--.---- 17

Chism v. Koehler, 392 F. Supp. 659, aff’d, 527 F.2d

612, cert. denied, 425 U.S. 944 .............................. 23

Dandridge v. United States, 265 F.2d 349 _............ 24

Day v. United States, 390 A.2d 957 _...... + 23

Doescher Vv. Estelle, 454 F. Supp. 943 0... 18

Harrison v. United States, 392 U.S. 219 ................. 17, 24

Jones V. Commonwealth, 495 Pa. 490, 434 A.2d

eT See 19

Klopfer v. North Carolina, 386 U.S. 213 —.............. 14

People v. Jamerson, 198 Colo. 92, 596 P.2d 764 __... 20

Scarbrough v. State, 76 Wis.2d 87, 250 N.W.2d

EEE 21

State v. Helenbolt, 334 N.W.2d 400 00 oo... 23

State v. Sieckmann, 3 Or. App. 454, 474 P.2d 367.. 20

State v. White, 118 Ariz. 47, 574 P.2d 840 ............. 20

United States v. Auerbach, 420 F.2d 921, reh’g

denied, 423 F.2d 676, cert. denied, 399 U.S. 905.. 21

United States v. Bishton, 463 F.2d 887 .......... 15, 17, 21, 22

United States yv. Bizzard, 674 F.2d 1382, cert. de-

A 24

IV Vv

Cases—Continued : Page

Constitution, statutes and rule—Continued : Page

United States v. Brown, 520 F.2d 1106 .................... 20, 22

United States v. Carey, 746 F.2d 228, cert. pending, 18 U.S.C. 922 (Ih) (1) -....-------------s-ceeeceeeseceeeesesesesesneenes 8

SE" "Rtn in aaa 19 ID iceicssnchesneesnncbennsdenesindeiennrenmmnemmenion 4

United States v. Ewell, 383 U.S. 116 ............0..c0000.-- 17, 23 18 U.S.C. 38781 .......-.-----coe-coeeeoeseen seen eee seeeneennennnennness 13, 17, 19

United States v. Herman, 576 F.2d 1139 _................ 21, 22 18 U.S.C. App. 1202 (8)... ---------------seneeeeeseeeeesnteneeees 4

United States v. Hill, 622 F.2d 900 0000000... osees 24 26 U.S.C. 5861 (Gd) -...-.--------ne--o-nenecceesnesenecentennenneennsenes 4

United States vy. Hollywood Motor Car Co., 458 26 U.S.C. 5861 (i) -........-.-.------e-s-ceececeeeseeeseeseeeeneneess 4

EEE aT 9, 28, 27 Be Es IE ID ocesececccccccoccnsesonvesnnsasnvscceseernnecceneneeene 4

United States v. Jackson, 508 F.2d 1001 .............. 21, 22, 26 26 U.S.C. 5871 ......------en-enescecceececeeeseceeeenesneeeeeeennsnees 4

United States v. Litton Systems, Inc., 557 F. Supp. Fed. R. Crim. P. 48(b) ...........-..---------s0e--ssseesseeseeeeees 5

568, rev’d, 722 F.2d 264, cert. denied, No. 83-

ee i a cussntssonneseell 21, 22, 27

United States v. Lovasco, 481 U.S. 783 ..........0000...... 14, 28

United States v. MacDonald, 456 U.S. 1 ........ 10, 11, 14, 15

United States v. Nance, 666 F.2d 353 .......000............ 18

United States v. Perry, 353 F. Supp. 1235, aff’d

mem. (D.C. Cir. Dec. 12, 1978) .......................... 22

United States v. Rosenbloom, 511 F.2d 777 ............ 22

United States v. Saintil, 705 F.2d 4165 ......... silt 18, 19

United States v. Samples, 713 F.2d 298 ....0.. 16

United States v. Sarvis, 523 F.2d 1177 ......0000000000.... 22

United States v. Sebastian, 428 F. Supp. 967, aff'd,

ii 22, 23

United States v. Watson, 623 F.2d 1198 ....... 7

United States ex rel. Mitchell vy. Fairman, 750 F.2d

RR ee ce eS eel BARA Dn NE 19

Williams, In re, 398 N.E.2d $58 ................................ 24

Constitution, statutes and rule:

U.S. Const. :

Amend. V:

Double Jeopardy Clause ................0.0000...... 17, 24

a TN I ai cceictnreectntnneccced 9, 14, 28

Amend. VI (Speedy Trial Clause) .......... passim

Speedy Trial Act, 18 U.S.C. 3161 et seq. 0000... 7

eed 13, 15

p ge FR | |; nee Ie eek 19

ee es I I CO mettetceenccncccsstnanceeseencst 13, 18

SE AER 5 Eee ee Lee Ae 7

ET ahinneicinacdniitienianbascaschenutpepteiasintimialiia: 18

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

KENNETH MOSES LOUD HAWK, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals affirming the

dismissal of the indictment on the ground that re-

spondents’ right to a speedy trial was violated (App.

la-25a) is reported at 741 F.2d 1184. The opinion

of the court of appeals addressing respondents’ vin-

dictive prosecution claims (App. 26a-35a) is reported

at 682 I°.2d 841. The opinion of the en banc court

of appeals reversing the district court’s suppression

order and dismissal of the indictment with prejudice

(App. 36a-87a) is reported at 628 F.2d 1139. The

panel opinion in that appeal (App. 88a-118a) is un-

reported. The district court’s opinion dismissing the

(1)

2

indictment on speedy trial grounds (App. 119a-1382)

is reported at 564 F. Supp. 691. The district court’s

orders on the vindictive prosecution motion (App.

139a-143a, 144a-148a), its bench ruling dismissing

the indictment under Fed. R. Crim. P. 48(b) (App.

149a-15la), and its suppression order (App. 152a-

157a) are unreported.

JURISDICTION

The judgment of the court of appeals (App. 158a-

159a) was entered on August 30, 1984. A petition

for rehearing was denied on January 8, 1985 (App.

160a). The jurisdiction of this Court is invoked

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

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial * * *.

STATEMENT

Respondents were apprehended on November 14,

1975 and charged on December 22, 1975, with unlaw-

fully possessing and transporting dynamite and fire-

arms. Because of protracted litigation over pretrial

defense motions, respondents have yet to be tried.

Twice, respondents convinced the district court to dis-

miss all or part of the indictment. Both times, the

government prevailed in the court of appeals. Follow-

ing the last remand, the district court once again dis-

missed the indictment, ruling that respondents’ Sixth

Amendment right to a speedy trial had been violated

(App. 119a-138a). The court of appeals affirmed (id.

at la-25a). A summary chronology of the complex

3

proceedings in this case is included at page 16la of

the Appendix.

1.a. On November 13, 1975, the Federal Bureau

of Investigation notified Oregon law enforcement au-

thorities that federal fugitives might be aveling

through the state in a motor home and sta.ion wagon.

The FBI’s teletype message described both vehicles

and provided the license number of the motor home.

The next day, Oregon state trooper Griffiths observed

two vehicles fitting the FBI’s description. After verify-

ing the license number of the motor home, he stopped

the vehicle and told its occupants to step outside.

Former defendants Peltier and Aquash stepped out of

the motor home, followed by respondent KaMook

Banks and her infant child. Griffiths was told that no

one else was inside. Just then the motor home ac-

celerated quickly and Peltier fled, jumping over a

nearby fence and exchanging gunfire with Griffiths.

Griffiths then followed the motor home and found it

one-half mile from the initial stop, with no one in-

side." Meanwhile, another state trooper approached

the station wagon, which had stopped behind the

motor home, and ordered its occupants out of the car.

Respondents Redner and Loud Hawk emerged. Both

vehicles were locked and impounded while search war-

rants were obtained. App. 37a-40a.

Searches of the two vehicles pursuant to state and

federal search warrants’ disclosed 350 pounds of

dynamite, 6 partially assembled time bombs, and a

1The government would introduce evidence at trial show-

ing that respondent Dennis Banks was the driver of the motor

home. Banks was not arrested until January 26, 1976.

2? State warrants were obtained and executed on November

15, 1975. Federal warrants were obtained and executed the

following day. App. 40a & n.3.

4

loaded .44 caliber revolver in the station wagon, and

2600 rounds of ammunition, 150 blasting caps, 9

empty hand grenades, and 13 firearms, 8 of which

had obliterated serial numbers, in the motor home.

On November 16, 1975, Oregon state law enforcement

officers removed the dynamite and destroyed it with-

out consulting federal officials. App. 40a-42a & n.4,

45a-46a.

b. On December 22, 1975, a five-count superseding

indictment was returned against respondents in the

United States District Court for the District of Ore-

gon. Clerk’s Record (C.R.) 11-1. The first three

counts charged respondents with unlawful possession

and transportation of an unregistered and unnum-

bered destructive device, including seven cases of

dynamite, along with timing devices and detonating

materials, in violation of 26 U.S.C. 5861(d), (i) and

(j), 5871. Count four charged respondents with un-

lawfully transporting firearms whose serial numbers

had been obliterated, in violation of 18 U.S.C.

922(k).* Count five charged respondent Dennis Banks

with possession of firearms by a convicted felon, in

violation of 18 U.S.C. App. 1202(a).

2.a. On December 24, 1975, respondents filed a

motion to dismiss the destructive device charges or,

alternatively, to suppress any secondary evidence re-

lating to the dynamite, because of its destruction by

the state police (C.R. 17). On January 21, 1976, the

trial was postponed until March 8, 1976, on the mo-

tion of respondents (C.R. 36, 37, 39). The court de-

nied respondents’ suppression motion on January 23,

1976 (C.R. 38), but thereafter granted their request

*Counts 1 through 4 also charged Peltier and Aquash.

Peltier’s case was severed and the charges against him later

dismissed. Aquash is now deceased.

5

for reconsideration (C.R. 43) and ordered a pretrial

evidentiary hearing. On respondents’ motion and over

the objection of the government, trial was again con-

tinued until May 12, 1976 (C.R. 62, 64).

Hearings on respondents’ motion to dismiss or to

suppress evidence of the dynamite were held on

March 19 and 22, 1976 (C.R. 81, 85). The district

court granted the motion on March 31, 1976, sup-

pressing “all evidence, tangible and intangible, relat-

ing to” the dynamite (App. 157a). The govern-

ment filed a notice of appeal from the suppression

order on April 19, 1976 (C.R. 115), and sought a

continuance of the May 12 trial date pending resolu-

tion of the appeal (C.R. 120, 121). The government

repeatedly urged that its right to appeal would be

vitiated if it were forced to go to trial before the

appeal was decided and without the suppressed evi-

dence (e.g., C.R. 133, 186, 139; 4/26/76 Tr. 5-7).

The continuance was denied by the district court, and

a stay of trial was denied by the court of appeals.

When the case was called for trial on May 12,

1976, the government, consistent with its earlier rep-

resentations, refused to proceed because of the pend-

ing appeal (App. 150a; C.R. 142). The district

court thereupon dismissed the entire indictment with

prejudice, invoking Fed. R. Crim. P. 48(b).* App.

15la; C.R. 142. The government immediately up-

pealed from the dismissal (C.R. 149; 5/12/76 Tr.

12). The two appeals were consolidated and expedited

* Fed. R. Crim. P. 48(b) provides:

If there is unnecessary delay * * * in bringing a defen-

dant to trial, the court may dismiss the indictment, in-

formation or complaint.

6

(see App. 123a). Respondents were unconditionally

released during the appeal (C.R. 142; see App. 151a).

b. The government filed its opening brief on June

28, 1976, and its reply brief on August 2, 1976. The

appeal was argued and submitted on October 15, 1976

(App. 123a). A divided panel of the court of ap-

peals affirmed on July 26, 1977 (id. at 88a-118a).

The government’s petition for rehearing with sugges-

tion of rehearing en banc was filed on September 7,

1977, and granted on October 17, 1977 (id. at 123a).

No further briefs were received by the court, nor was

the case reargued. On March 6, 1978, the court of

appeals remanded to the district court for an eviden-

tiary hearing on whether federal officials participated

in the destruction of the dynamite and whether re-

spondents suffered any prejudice from its destruction

(C.R. R-1;° App. 44a-45a, 123a). The court of ap-

peals retained jurisdiction over the case and re-

quested findings from the district court within 45

days (C.R. R-1, at 2; App. 45a). The district court

held the hearing on May 9 and 10, 1978, and issued

its findings on August 23, 1978 (id. at 123a).

On August 7, 1979, the court of appeals, sitting

en banc, reversed the suppression order and ordered

the dynamite counts reinstated (App. 36a-87a). The

court also determined that while the government

could have gone to trial on the firearms counts pend-

ing the appeal, the district court erred in dismissing

those counts with prejudice (id. at 60a-62a). Ac-

cordingly, the court ordered that the district court

reconsider its dismissal of those counts (id. at 62a).

5 The designation “C.R. R-” refers to the numbering sys-

tem used in the Clerk’s Record after March 1, 1978.

7

Respondents’ petitions for rehearing and certiorari

weve denied on October 1, 1979 and March 3, 1980

(445 U.S. 917), respectively. The mandate of the

court of appeals issued on March 12, 1980, 46 months

after the government took its appeal from the dis-

missal of the indictment (App. 4a).

3. a. On remand, the government contended that

the firearms counts should be reinstated rather than

presented again to a grand jury (4/14/80 Tr. 5).

Respondents argued that those counts could not be

reinstated (5/12/80 Tr. 6-7). On May 12, 1980, the

court ordered the government to reindict on the fire-

arms charges (5/12/80 Tr. 7). Following respond-

ents’ requests for continuances (C.R. R-41, R-45,

R-50, R-51; 4/14/80 Tr. 9-10; 5/12/80 Tr. 14-15),

the court set trial for September 3, 1980 (5/12/80

Tr. 20). Respondents stipulated that the pendency of

numerous pretrial motions created excludable delay

under the Speedy Trial Act (18 U.S.C. 3161 et seq.)

running from March 17, 1980, the date the mandate

was received, until all of the motions were decided

(5/12/80 Tr. 18-19).° By April 24, 1980, at least 19

pretrial defense motions were outstanding (4/14/80

Tr. 9; C.R. R-33, R-37, R-39), and on that date re-

spondents filed a motion requesting another two

weeks for the filing of additional pretrial motions

(C.R. R-41).

The grand jury returned a superseding indictment

on June 18, 1980 (C.R. R-81). The new indictment

* At the time, the parties were under the misimpression

that the mandatory dismissal sanction of the Speedy Trial

Act applied to this case. See generally 18 U.S.C. 3163(c) ;

United States v. Watson, 623 F.2d 1198, 1202 & n.8 (7th Cir.

1980).

8

charged respondents with two of three origina! de-

structive device counts and added two new destruc-

tive device counts. It charged respondents with the

original firearms count (although it substituted “re-

ceiving” for “transporting”) and again charged Den-

nis Banks with being a felon in possession of fire-

arms. The indictment also charged KaMook Banks

with a new count of receiving firearms while under

indictment, in violation of 18 U.S.C. 922(h) (1).

Respondents filed a number of new motions in re-

sponse to the superseding indictment (C.R. R-88,

R-90, R-92, R-93, R-95-99, R-102, R-103, R-105),

including a motion to dismiss on the ground of vin-

dictive prosecution (C.R. R-97). On August 8, 1980,

the district court granted the vindictive prosecution

motion as to KaMook Banks and denied it as to the

other respondents (App. 139a-143a, 144a-148a).

Those respondents filed notices of appeal between

August 15 and 22, 1980, and the government noticed

an appeal from the dismissal of charges against

KaMook Banks on September 2, 1980 (C.R. R-125,

R-130, R-133, R-139). The appeals were consolidated

and expedited (C.R. R-144-146, R-149). Respondents

remained free during the appeal on their own recog-

nizance.

b. Respondents filed their opening brief on Octo-

ber 15, 1980, and the government filed its brief on

November 3, 1980. The appeal was argued and sub-

mitted on January 7, 1981. On July 29, 1982, the

court of appeals reversed the dismissal of the indict-

ment with respect to KaMook Banks’ and dismissed

7 The government did not contest the dismissal of the newly

added count of receiving firearms while under indictment.

9

the interlocutory appeals of the other respondents for

want of jurisdiction (App. 26a-35a; C.R. R-190).*

Respondents’ petitions for rehearing and certiorari

were denied on October 5, 1982 and January 10, 1983

(459 U.S. 1117), respectively. The court of appeals’

mandate issued on January 31, 1983, 29 months after

the appeals were filed (App. 5a).

4. a. With trial set for June 13, 1983 (after one

continuance obtained by the government and two or-

dered by the court on its own motion), the district

court, on May 20, 1983, dismissed the indictment a

third time, ruling that respondents’ Sixth Amend-

ment right to a speedy trial had been violated (App.

119a-138a). The court also decided that the delay

violated the Due Process Clause (App. 129a-130a

n.7). The government filed a notice of appeal on

June 17, 1983, and unsuccessfully urged the district

court to request that the court of appeals expedite

the appeal (C.R. R-268, at 2 n.3; 6/30/83 Tr. 14).

As before, respondents were free of all restrictions

during the appeal. Respondents have not been in

custody since early 1976 (App. 9a, 136a; C.R. 43, 45,

50, 51).

b. The government’s opening brief was filed on

August 16, 1983, and its reply brief on September 27,

1983. The appeal was argued on January 4, 1984. A

divided panel of the court of appeals affirmed on Au-

gust 30, 1984 (App. la-25a).

*On June 28, 1982, this Court held that the courts of ap-

peals are without jurisdiction to review interlocutory orders

denying motions to dismiss on the ground of vindictive prose-

cution. United States v. Hollywood Motor Car Co., 458 U.S.

263.

® App. 125a; C.R. R-196-198, R-223, R-225.

10

The court applied the four-part balancing test set

forth in Barker v. Wingo, 407 U.S. 514, 530-533

(1972), assessing the length of the delay, the reasons

for the delay, respondents’ assertion of their right to

a speedy trial, and the degree of prejudice to re-

spondents. The majority counted the entire 90

months from the November 1975 arrests until the

May 1983 dismissal as the relevant period of delay,

including the entire length of time expended on the

two earlier appeals, which consumed 75 of those 90

months (App. lla). In counting the time on the

government’s appeals, during which charges had been

dismissed, the court distinguished United States v.

MacDonald, 456 U.S. 1 (1982), which held that the

Speedy Trial Clause does not apply to periods when

charges have been dismissed, on the ground that the

dismissal in MacDonald was voluntary, while here the

dismissals were over the government’s objections

(App. 8a). The court did not find it significant that

respondents “were not incarcerated or subjected to

other restrictions on their liberty during the time

when the indictments had been dismissed” (id. at 9a).

Assessing the reasons for the delay, the majority

counted against the government the court’s own

lengthy delay in deciding the first appeal (App. 12a-

13a). The court found postponement of trial on the

firearms counts “wholly unnecessary” and therefore

weighed the appeal time heavily against the govern-

ment with respect to those counts (id. at 12a). With

respect to the dynamite counts, the court found that

the government’s appeal of the suppression order was

clearly justified and that the delay was largely attrib-

utable to the court’s own processes, a “neutral” rea-

il

son that it weighed against the government, although

not heavily (id. at 13a). The court purported to

weigh the time spent on the second appeal against

neither the government nor the defendants, although

it did not excuse the delay, except for the six months

spent on respondents’ frivolous certiorari petition (id.

at 14a-15a). The court considered the 23 months that

the appeal was before it a reasonable time, involving

“no * * * undue delay” (id. at 15a).

The majority also found that respondents had ade-

quately asserted their right to a speedy trial (App.

15a). Finally, although the majority acknowledged

that respondents had not suffered prolonged incarcera-

tion, it did find prejudice resulting from the pendency

of unresolved charges and a slight amount of preju-

dice resulting from the deaths and fading memories

of some witnesses (id. at 16a-17a). Balancing all

of these fac.ors, and concluding that “[t]he most

weighty factor by far is the length of delay” (id. at

17a), the majority held that respondents’ Sixth

Amendment right had been violated (App. 18a). The

court did not address respondents’ due process claim.

In dissent, Judge Wallace concluded that United

States v. MacDonald, supra, required exclusion from

the length of delay of the time when no live indict-

ment was outstanding (App. 19a-23a). Nor did he

count the period during the interlocutory appeals by

the respondents other than KaMook Banks (id. at

24a). The remaining time, between six months and

one year for the various respondents, did not, in

Judge Wallace’s view, violate the Speedy Trial Clause

(id. at 24a-25a).

12

REASONS FOR GRANTING THE PETITION

In this case, respondents were apprehended in No-

vember 1975 transporting a substantial arsenal of

firearms, ammunition, and explosives, much of which

it was illegal for them to receive, possess, or trans-

port. After their repeated and partially successful

efforts to avert or delay trial on the rather straight-

forward criminal charges growing out of this inci-

dent and to prevent the government from utilizing all

of its available evidence in prosecuting those charges,

respondents have—in what we regard as the ultimate

irony—been rewarded with a ruling by the court of

appeals that their constitutional right to a speedy

trial was violated by the appellate litigation growing

out of their various legally erroneous claims.

The decision below represents a significant depar-

ture from the standards established by this Court

and followed by other courts of appeals in evaluating

claims under the Speedy Trial Clause. More than six

of the seven and one-half years of pretrial delay in

this case are attributable to appeals taken by the

government from orders dismissing the indictment

and suppressing evidence, an interlocutory appeal

taken by three of the respondents from the denial of

their motion to dismiss, and respondents’ petitions

for rehearing and certiorari. Having repeatedly in-

duced the district court to err, respondents cannot

complain of the time necessary for the government to

seek and obtain correction of those errors on appeal.

And having determined to take an interlocutory ap-

peal of an issue that is fully preserved for review

following a final judgment of conviction, respond-

ents similarly cannot complain of the time spent by

the court of appeals in deciding their appeal.

13

The proper treatment under the Speedy Trial

Clause of periods when a case is on appeal is a fre-

quently recurring issue of considerable practical im-

portance that has divided the courts of appeals. It is

an issue lurking in every case where the government

has taken an appeal pursuant to 18 U.S.C. 3731. The

decision below departs from this Court’s precedents,

erroneously restricts the government’s right to ap-

peal, and adversely affects the public’s interest in

lawfully prosecuting criminal offenders. Further re-

view is therefore warranted.”

1. In Barker v. Wingo, 407 U.S. 514 (1972), this

Court established a balancing test to evaluate claims

under the Speedy Trial Clause. The Court identified

(407 U.S. at 530; footnote omitted) four relevant fac-

tors: “[l]ength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to

the defendant.” When the government appeals in good

faith from an order suppressing evidence or dismiss-

ing an indictment, the time spent on appeal should

not be included in the computation of the length of

delay.”

a. Where an indictment has been dismissed and

the defendant is not subject to actual restraints on

©The Speedy Trial Act’s more stringent provisions have

effectively mooted much litigation about the requirements of

the Speedy Trial Clause of the Sixth Amendment as applied to

federal prosecutions. That is not true, however, with respect

to the present issue. Because time devoted to pretrial appeals

is automatically excluded under the Act (see 18 U.S.C.

3161(d) (2) and (h) (1) (E)), the constitutional speedy trial

guarantee governs this important issue.

11 Alternatively, if appeal time is included within the length

of the delay, it should be charged against the defendants when

the government is successful on appeal or else wholly excused

under the “reason for the delay” factor identified in Barker

v. Wingo, supra.

l4

his liberty, the Speedy Trial Clause does not apply.

United States v. MacDonald, 456 U.S. 1 (1982). In

MacDonald, the Court held that the Speedy Trial

Clause did not apply to the period between the gov-

ernment’s dismissal of charges and the defendant’s

indictment more than four years later. “Once charges

are dismissed,” the Court held, “the speedy trial

guarantee is no longer applicable” (456 U.S. at 8;

footnote omitted). This rule applies here to exclude

the time on the government’s appeals: no charges

were outstanding against respondents during these

periods, for the indictment had been dismissed by the

district court, and respondents were unconditionally

released during the appeals.’* The government could

not have tried respondents during these periods no

matter how dearly it wanted to do so. Cf. Klopfer v.

North Carolina, 386 U.S. 213 (1967) (speedy trial

guarantee applied where indictment was not dis-

charged and case could be restored to docket on

prosecutor’s request) ; Arnold v. McCarthy, 566 F.2d

1377, 1383 (9th Cir. 1978) (following dismissal of

indictment, defendant was not an “accused” who

could demand a speedy trial). Hence, the Speedy

Trial Clause does not apply. Respondents’ claim

should have been analyzed instead under the Due

Process Clause. See MacDonald, 456 U.S. at 7;

United States v. Lovasco, 431 U.S. 783 (1977); note

21, infra.

12 The periods that should be excluded on this ground ex-

tend from May 12, 1976, when the indictment was dismissed

as to ail respondents, until the superseding indictment was

returned on June 18, 1980, and, as to KaMook Banks, from

August 8, 1980, when the superseding indictment against her

was dismissed, until January 31, 1983, when the court of

appeals’ mandate issued.

15

The court below erred in distinguishing MacDon-

ald on the ground that the government’s dismissal of

charges there was voluntary, while here the indict-

ment was dismissed over the government’s objection

(App. 8a-9a). This Court’s reasoning in MacDonald

is fully applicable to the circumstances of this case

(456 U.S. at 8-9): ™

The speedy trial guarantee is designed to min-

imize the possibility of lengthy incarceration

prior to trial, to reduce the lesser, but neverthe-

less substantial, impairment of liberty imposed

on an accused while released on bail, and to

shorten the disruption of life caused by arrest

and the presence of unresolved criminal charges.

Once charges are dismissed, * * * the form-

erly accused is, at most, in the same position as

any other subject of a criminal investigation.

8 The Court nowhere suggested that its holding might be

limited to voluntary dismissals. Indeed, the Court twice indi-

cated its intent that the holding apply to all dismissals, in-

cluding those entered over the government’s objection. The

Court stated (456 U.S. at 7 n.7) that its “holding agrees with

the determination made by Congress in enacting the Speedy

Trial Act of 1974 * * * that if charges are initially dismissed

and later reinstated, the period between the dismissal and the

reinstatement is not to be included in computing the time

within which a trial must commence. 18 U.S.C. §§ 3161(d),

3161 (h) (6).” Section 3161 (d) (2) applies where an indictment

dismissed by the district court is reinstated following appeal.

In the same footnote, the Court noted that most of the courts

of appeals had “also reached the conclusion that the period

after dismissal of initial charges is not included” under the

Speedy Trial Clause. One of the cases cited, United States v.

Bishton, 463 F.2d 887 (D.C. Cir. 1972), held that the time

attributable to the government’s appeal from the dismissal of

an indictment was not relevant for purposes of the Speedy

Trial Clause.

16

Certainly the knowledge of an ongoing criminal

investigation will cause stress, discomfort, and

perhaps a certain disruption in norma! life. This

is true whether or not charges have been filed

and then dismissed. * * * But with no charges

outstanding, personal liberty is certainly not

impaired to the same degree as it is after arrest

while charges are pending. * * * Following dis-

missal of charges, any restraint on liberty, dis-

ruption of employment, strain on financial re-

sources, and exposure to public obloquy, stress

and anxiety is no greater than it is upon anyone

openly subject to a criminal investigation.

There were no live indictments outstanding against

respondents during the government’s appeals, and re-

spondents were not subject to any restraints on their

liberty. The government’s appeals exposed respond-

ents to the same “public obloquy, stress and anxiety”’

that would have been caused by any public knowledge

of the government’s interest in or consideration of

criminal charges against them. Even where it is

clear that the government intends to reindict or

otherwise to pursue the case, the Speedy Trial Clause

does not apply. See United States v. Samples, 713

F.2d 298, 301-302 (7th Cir. 1983) (Speedy Trial

Clause not applicable to period between dismissal of

indictment for improper venue and reindictment).

Simply put, if there are no pending charges that can

be tried, the Sixth Amendment does not require the

impossibility of trying them speedily.

b. Even if the indictment has not been dismissed

or the defendant is subject to arrest or bail pending

appeal, the time attributable to government appeals

from pretrial orders cannot be subjected to the stric-

tures of the Speedy Trial Clause without severely re-

stricting the government’s right to appeal under i8

17

U.S.C. 3731 * and creating substantial practical dif-

ficulties. As the Court has consistently stated, “[t]he

right of a speedy trial is necessarily relative. * * *

It does not preclude the rights of public justice.

United States v. Ewell, 383 U.S. 116, 120 (1966),

quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905).

The government has a vital interest in securing ap-

pellate review of district court orders dismissing in-

dictments and suppressing evidence. Such review can

take place, consistent with the Double Jeopardy

Clause, only prior to trial. The “deliberate pace”

(Ewell, 383 U.S. at 120) of the criminal process is,

with good reason, especially unhurried at the appel-

late stage. See United States v. Bishton, 463 F.2d

887, 890 (D.C. Cir. 1972) (“the function of appellate

courts necessarily casts the delay attendant upon

their deliberations in a somewhat different light’’) ;

see also Harrison v. United States, 392 U.S. 219, 221-

222 n.4 (1968) (delays on appeal resulted from “the

»

1418 U.S.C. 3731 provides in pertinent part:

In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or in-

formation or granting a new trial after verdict or judg-

ment, as to any one or more counts, except that no appeal

shall lie where the double jeopardy clause of the United

States Constitution prohibits further prosecution.

An appeal by the United States shall lie to a court of

appeals from a decision or order of a district courts sup-

pressing or excluding evidence * * * , not made after

the defendant has been put in jeopardy * * * , if the

United States attorney certifies to the district court that

the appeal is not taken for purpose of delay and that the

evidence is a substantial proof of a fact materia] in the

proceeding.

The appeal in all such cases * * * shall be diligently

prosecuted.

18

need to assure careful review of an unusually com-

plex case”).

It would therefore make little sense to require that

the appellate process proceed with the speed required

by the Sixth Amendment. Cf. Doescher v. Estelle,

454 F. Supp. 948, 949-950 (N.D. Tex. 1978) (no

Sixth Amendment right to a speedy appeal); 18

U.S.C. 3161(h)(1)(E) (delays resulting from in-

terlocutory appeals excludable under the Speedy

Trial Act). The rule adopted by the court below

could force the governmeni to seek writs of man-

damus from this Court to compel the courts of ap-

peals to issue decisions once cases have been pending

on appeal for a significant period. This unhappy and

impractical result is hardly required, as the court

below apparently believed (App. 13a), by this

Court’s reference in Barker v. Wingo (407 U.S. at

531) to delay caused by “overcrowded courts.” Taken

in context, that statement applies more naturally to

trial court congestion than it does to appellate delay,

where more time is spent reviewing legal issues than

in waiting for a hearing date on a crowded calendar.

Moreover, the Ninth Circuit overlooked a critical dis-

tinction in equating its own delays with delays due

to trial court congestion—the latter are caused by

circumstances beyond a defendant’s control, whereas

the appeals here were necessitated entirely by re-

15 “ *FT)t will be an unugual case in which the time limits of

the Speedy Trial Act hag n met but the sixth amendment

right to a speedy trial has been violated.’” United States v.

Saintil, 705 F.2d 415, 418 (11th Cir. 1983), quoting United

States v. Nance, 666 F.2d 353, 361 (9th Cir. 1982). The policy

dictating exclusion of appeal time under the Act, while not

dispositive (see 18 U.S.C. 3173), therefore strongly suggests

that appellate delay does not violate the Speedy Trial Clause.

Pi

19

spondents’ legally erroneous contentions. In sum,

where the government has, in good faith, taken an

appeal under 18 U.S.C. 3731, the resulting delay

should be excluded under the Speedy Trial Clause.”

See generally United States ex rel. Mitchell v. Fair-

man, 750 F.2d 806, 809 (7th Cir. 1984) (22 months

on appeal of suppression order not weighed against

the state because ‘“‘the state had every right to appeal”

and “the appeal was not taken just for purposes of

delay’’).

16 The court of appeals faulted the government for refusing

to go to trial on the firearms counts during the pendency of

the appeal of the district court’s order suppressing evidence

of the dynamite (App. 12a; see pages 5-7, supra). But the

government acted in good faith, and surely had no reason

to anticipate that the court of appeals would take over three

years to decide the appeal. Moreover, the firearms counts

had not been severed from the dynamite counts—the gov-

ernment would have had to go to trial on all counts, thereby

losing its right to appeal the suppression order. Cf. United

States v. Carey, 746 F.2d 228, 230-231 (4th Cir. 1984), cert.

pending, No. 84-1272 (exclusion of time under the Speedy

Trial Act where counts are joined for trial and no severance

motion has been granted). Accordingly, the time on appeal

cannot weigh against the government, especially where the

government was successful in reversing the district court’s

dismissal with prejudice. See generally United States v.

Saintil, 705 F.2d at 418 (where government made a good

faith mistake in interpreting district court’s order, the delay

attributable to its appeal should not be weighed heavily) ;

Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981)

(delay attributable to government’s unsuccessful interlocu-

tory appeal did not violate speedy trial guarantee). Even if

the period on the first appeal should be included with respect

to the firearms counts, there is absolutely no reason to in-

clude that period with respect to the dynamite counts, where

the government’s appeal was concededly necessary because

crucial evidence had been suppressed (App. 12a-13a).

20

c. Including appeal time within the length of de-

lay under the Speedy Trial Clause—whether it be

weighed lightly or heavily against the government—

is especially inappropriate where, as here, the gov-

ernment has been successful on appeal. Having in-

duced the trial court to err, respondents are in a poor

position indeed to claim that their constitutional

rights have been violated by the time needed for the

government to obtain correct legal rulings from the

court of appeals. If this time is to be included at all,

it must be weighed against respondents. See United

States v. Brown, 520 F.2d 1106, 1130-1131 (D.C.

Cir. 1975) (MacKinnon, J., dissenting from denial of

rehearing en banc). As the court stated in People v.

Jamerson, 198 Colo. 92, 97, 596 P.2d 764, 768

(1979):

Defendant’s original motion to dismiss was not

legally sustainable * * *. He cannot now use the

fact that a trial court erroneously upheld his

position to predicate an argument that an un-

reasonable delay took place because the prosecu-

tion appealed and obtained a reversal of the

erroneous ruling.

See also State v. Sieckmann, 3 Or. App. 454, 459-460,

474 P.2d 367, 370 (1970) (“[s]ince defendant’s mo-

tion to dismiss the original indictment was without

merit, * * * and the resulting erroneous order of dis-

missal was the cause of the state’s appeal, the defend-

ant must share responsibility for the delay”); State

v. White, 118 Ariz. 47, 56, 574 P.2d 840, 849 (Ct.

App. 1977) (defendant’s motion “is made in the con-

text of the possibility of an appeal by the State if it

is granted’).

Excluding time resulting from a statutorily author-

ized appeal of the district court’s grant of a defense

en

21

motion comports with the rule that the period neces-

sary for the district court to consider such motions

does not give rise to a Sixth Amendment violation:

Having sought the aid of the judicial process and

realizing the deliberateness that a court employs

in reaching a decision, the defendants are not

now able to criticize the very process which they

so frequently called upon.

United States v. Auerbach, 420 F.2d 921, 924 (5th

Cir.), reh’g denied, 423 F.2d 676 (1969), cert. denied,

399 U.S. 905 (1970); see also, e.g., United States v.

Litton Systems, Inc., 722 F.2d 264, 270 (5th Cir.

1984), cert. denied, No. 83-1550 (May 14, 1984);

Scarbrough v. State, 76 Wis. 2d 87, 99-103, 250 N.W.

2d 354, 360-361 (1977). Respondents caused most of

-ne delay in this case by filing legally erroneous mo-

tions. Having set the judicial process in motion, they

should not now reap the windfall of a dismissal under

the Speedy Trial Clause predicated on the resultant

delay.

d. The failure of the court below to exclude from

the length of delay time attributable to the govern-

ment’s appeals conflicts with the decisions of other

courts of appeals. In United States v. Jackson, 508

F.2d 1001, 1004 (7th Cir. 1975), for example, the

court held that, “[i]n calculating the length of delay,

* * * the period of delay attributable to review of an

order appealable under 18 U.S.C. § 3731 should not

be considered.” Similarly, in United States v. Bish-

ton, 463 F.2d 887, 890 (D.C. Cir. 1972), the court

held that “the time spent on appeals is not generally

included for purposes of calculating the period of de-

lay.” * In United States v. Herman, 576 F.2d 1139,

Although Bishton predates Barker v. Wingo, the court

of appeals used a similar balancing test in assessing the

22

1146 (5th Cir. 1978), on which the court below

erroneously relied (App. lla), the court stated

that it agreed with the principles expressed in Jack-

son and Bishton, and held that “{a]n interlocutory

appeal by the government is generally a valid reason

that justifies an appropriate delay.” * Other courts

have similarly held that time on government appeals

may not be charged against the government in evalu-

ating speedy trial claims. See United States v. Litton

Systems, Inc., 557 F. Supp. 568, 571 (S.D. Miss.

1983), rev’d on other grounds, 722 F.2d 264 (5th

Cir. 1984), cert. denied, No. 83-1550 (May 14,

1984); United States v. Sebastian, 428 F. Supp. 967,

defendant’s speedy trial claim (see 463 F.2d at 889-890).

In subsequent cases, the District of Columbia Circuit has been

more reluctant to discount entirely the delay caused by ap-

pellate processes, citing this Court’s language in Barker Vv.

Wingo (407 U.S. at 531) that delay caused by overcrowded

courts should be weighed lightly against the government.

See United States v. Sarvis, 523 F.2d 1177, 1183 (D.C. Cir.

1975) ; United States v. Brown, 520 F.2d 1106, 1109 (D.C.

Cir. 1975) ; United States v. Perry, 353 F. Supp. 1235 (D.D.C.

1973), aff’d mem. (D.C. Cir. Dec. 12, 1973). But see United

States v. Rosenbloom, 511 F.2d 777 (D.C. Cir. 1974). In Brown

and Perry, the only cases where the court found a Sixth

Amendment violation, the defendants were incarcerated dur-

ing parts of the delay and there was considerable delay in the

trial court that was not justified. The court of appeals has

never overruled Bishton.

18 The court in Herman went on to analyze the propriety

of the appeal more carefully because the defendant was in-

carcerated during the appeal (576 F.2d at 1146). After

examining “the necessity of the appealed question to the

government’s case, the strength of the government’s position

on the issue, and the seriousne*s of the crime” (ibid.), the

court held that the appeal was: justified and the resulting

delay could not be weighed against the government.

23

975 (W.D.N.Y.), aff'd, 562 F.2d 211 (2d Cir. 1977);

State v. Helenbolt, 334 N.W.2d 400, 405 (Minn.

1983). But see Atkins v. Michigan, 644 F.2d 543

548 (6th Cir.), cert. denied, 452 U.S. 964 (1981)

(defendant incarcerated during appeal); Chism v.

Koehler, 392 F. Supp. 659 (W.D. Mich. 1975), aff’d

on opinion below, 527 F.2d 612 (6th Cir.), cert. de-

nied, 425 U.S. 944 (1976) (same); Day v. United

States, 390 A.2d 957 (D.C. 1978) (appeal not ex-

pedited). The conflict plainly warrants resolution by

this Court.

2. The court of appeals clearly erred in failing to

exclude from the length of delay the more than two

years attributable to the interlocutory appeal taken

by respondents (other than KaMook Banks) of the

district court’s denial of their motion to dismiss for

vindictive prosecution. Although the court of appeals

purported not to weigh this time against the gov-

ernment (App. 15a), it did count the time within

the length of delay, to which the court gave virtually

dispositive force (see id. at 17a). The time spent on

the appeal before the court of appeals should have

been entirely excused, as was the time attributable

to respondents’ frivolous certiorari petition following

weg : Seng appeal for want of jurisdiction

nder Unite tes v. Holl

Ua ais tioae>, ywood Motor Car Co., 458

In United States v. Ewell, su a, this

that defendants could be idl ailicine o eee

ful collateral attack on their convictions, notwith-

standing a delay of 19 months between their original

arrest and reindictment. The Court reasoned (383

U.S. at 121) that interpreting the Speedy Trial

Clause to prohibit such delay would “seriously under-

cut” the policies underlying the settled interpreta-

24

tion of the Double Jeopardy Clause, which permits

retrial following reversal of a conviction on appeal.

Similarly, in Harrison v. United States, supra, the

Court rejected (392 U.S. at 221-222 n.4) as “wholly

without merit” the defendant’s claim that he had been

denied a speedy trial by lengthy delays on the success-

ful appeals he had taken from his earlier convictions.

The courts of appeals have also consistently held that

time consumed on defendants’ appeals does not count

toward the length of delay for purposes of the Speedy

Trial Clause. See United States v. Bizzard, 674 F.2d

1382, 1386 (11th Cir.), cert. denied, 459 U.S. 973

(1982) ; United States v. Hill, 622 F.2d 900, 909 (5th

Cir. 1980); Dandridge v. United States, 265 F.2d

349, 350 (D.C. Cir. 1959); see also In re Williams,

393 N.E.2d 353 (Mass. 1979). The inclusion of de-

fendants’ appeal time, moreover, is inconsistent with

the exclusion of time spent by the district court in

deciding defense motions (see page 21, supra). The

conflict over the proper treatment of time attributable

to defendants’ appeals, which is related to the treat-

ment of government appeal time, should be resolved

by this Court.

3. Finally, even if the court of appeals were com

rect in including appeal time within the length of

delay, the court seriously erred in its applying the

Barker v. Wingo balancing test to the facts of this

case. The court of appeals’ departure from the cor-

rect standard is so fundamental—and so closely re-

lated to its erroneous treatment of the time attribut-

able to the government’s and respondents’ appeals *"—

that review by this Court is warranted.

19 As we have noted (page 13 & note 11, supra) the proper

treatment of appeal time is either to exclude it entirely from

the length of delay, or to excuse it or weigh it against the

ee ee ee ee

25

Although the length of delay is but one of four

relevant factors, the court of appeals gave almost con-

clusive weight to it (App. 17a). While we have ar-

gued above that a substantial portion of this delay—

75 out of a total of 90 months—should be excluded al-

together from the speedy trial analysis, even if it is

included its significance must be substantially dis-

counted by consideration of the other three factors.

The reasons for the delay attributable to the govern-

ment’s appeals were clearly justifiable. After all, the

government prevailed on those appeals. It is surely a

Pyrrhic victory to be proven correct on appeal only to

face, on remand, dismissal under the Speedy Trial

Clause. And the time spent on respondents’ own un-

successful interlocutory appeal must, on any reason-

able analysis, weigh heavily against them.

Prejudice to respondents is almost entirely absent

here. In view of the fact that respondents “were in-

carcerated only for short periods, and were released

without restriction during almost all of the period

of delay” (App. 16a), the court below was able to

conclude only that respondents had suffered “some”

personal prejudice (ibid.). The court’s conclusion

(id. at 16a-17a) that respondents had suffered prej-

udice to their defense by the deaths and fading memo-

ries of witnesses is wholly speculative and ignores the

simplicity of the underlying facts in this case. Re-

spondents were caught red-handed, apprehended in

the act of committing the crimes with which they

were charged and in possession of the principal items

of evidence that would be used to prove the govern-

ment’s case. Whatever prejudice has been caused by

defendant as part of the reasons for delay, the second Barker

v. Wingo factor, which is “[c]losely related to length of de-

lay” (407 U.S. at 531).

26

the passage of time has been toc the government’s

detriment, not respondents’.

The final factor, and the one that conclusively dem-

onstrates the absence of a constitutional violation

here, is respondents’ obvious desire to avoid trial.

The Court emphasized the importance of a defen-

dant’s desire to obtain a speedy trial in Barker v.

Wingo (407 U.S. at 532, 536):

We emphasize that failure to assert the right will

make it difficult for a defendant to prove that he

was denied a speedy trial.

* * * * *

[B]arring extraordinary circumstances, we would

be reluctant indeed to rule that a defendant was

denied this constitutional right on a record that

strongly indicates * * * that the defendant did

not want a speedy trial.

This case presents just such a record. Despite their

pro forma demands for a speedy trial,” it must be

obvious that, far from seeking trial at the earliest

possible date, respondents were, from the very begin-

ning, doing everything in their power to delay facing

a trial (where, in light of the strength of the govern-

ment’s case, they would have little chance of prevail-

ing). In addition to filing a plethora of pretrial mo-

tions at the beginning of the case as well as after

20 Such demands are entitled to no weight. See, e.g., United

States v. Jackson, 508 F.2d at 1004. The courts below erred

in relying (App. 15a, 135a) on respondents’ expressed de-

sire to go to trial on May 12, 1976—at a time when critical

evidence against them had been erroneously suppressed—

because the government had already clearly stated that it

would not proceed on that date (see page 5, supra). Re-

spondents’ gratuitous demands therefore do not demonstrate

an actual desire to go to trial.

27

each remand, respondents sought and obtained two

continuances of the trial date during 1976 and at-

tempted to obtain a third (C.R. 36, 37, 39, 62, 64;

see C.R. 139), and again sought continuances fol-

lowing the court of appeals’ remand in 1980 (see

page 7, supra). Respondents also opposed or failed to

join in the government’s attempts to expedite the ap-

peals (C.R. R-268, at 2 n.3; 8/12/80 Tr. 192-193).

Most telling are respondents’ petitions for rehear-

ing and certiorari following the court of appeals’ rul-

ing in favor of the government as to KaMook Banks

and dismissal of the other respondents’ appeals on the

vindictive prosecution claim. That respondents would

continue to seek interlocutory appellate review fol-

lowing this Court’s dispositive decision in Hollywood

Motor Car Co., supra, holding that such relief is not

available, irrefutably demonstrates respondents’ man-

ifest desire to avoid trial. The court of appeals’ af-

firmance of the dismissal of the indictment in this

case for violation of the Sixth Amendment cannot be

squared with any value underlying the Speedy Trial

Clause. See generally United States yv. Litton Sys-

tems, Inc., 722 F.2d at 272 (to hold that defendant’s

speedy trial right had been violated “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 pos-

sible’) .”"

*! The district court also held that respondents’ due process

rights had been violated (App. 129a-130a n.7). Although

the court of appeals did not reach this issue, in the in-

terest of preventing further delay and because resolution of

the issue is so clear, we submit that it would be appropriate

28

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

BRUCE N. KUHLIK

Assistant to the Solicitor General

KATHLEEN A, FELTON

Atto: ney

FEBRUARY 1985

for this Court to rule that there was no due process violation.

The Due Process Clause protects the fundamental fairness

of the proceeding; in this context, prejudice to the defense

and the reasons for the delay are especially important. See

United States v. Lovasco, 431 U.S. at 790, 796. Here, preju-

dice to respondents was minimal at best, and most of the

delay was caused by respondents’ own pretrial motions and

the resulting appeals. On these facts, the district court’s

ruling that respondents were entitled to dismissal of the in-

dictment under the Due Process Clause is legally insupportable.

W ov. S. GOVERNMENT PRINTING OFFICE; 1985 461531 101858