# Petition for Writ of Certiorari — United States v. Loud Hawk > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0194%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 474 U.S. 302 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0194%3A02. Public record. Not legal advice.