Opposition Brief — United States v. Loud Hawk
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No. 84-1361]
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
UNITED STATES OF AMERICA, PETITIONER
v.
KENNETH MOSES LOUD HAWK, ET AL., RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT °
é
RESPONDENTS’ BRIEF IN OPPOSITION
KENNETH SAUL STERN TOM STEENSON
Rose & Stern EDWARD JONES
Suite 101, Kellogg Building 415 NW 18th Street
1935 SE Washington Street Portland, Oregon 97210
Milwaukie, Oregon 97222
Counsel for Respondent Counsel for Respondent
DENNIS JAMES BANKS RUSS JAMES REDNER
MICHAEL TIMOTHY BAILEY RONALD P. SCHIFFMAN
1234 SW Morrison Street Post Office Box 92
Portland, Oregon 97205 Toiovana Park, Oregon 97415
Counsel for Respondent Counsel for Respondent
KaMOOK BANKS KENNETH MOSES LOUD HAWK
QUESTIONS PRESENTED
1. Whether the Sixth Amendment's Speedy Trial Clause
protects a cefendant who is an appellee in an on-going pre-
trial appeal filed by the Government as part of its effort to
try, convict and incarcerate him or her.
2. Whether a per se rule should be adopted allowing pre-
trial criminal appeals to consume a limitless amount of time,
thereby insuring that even clearly inappropriate appellate
Gelay cannot impact a defendant's right to a speedy trial.
3. Whether every time a suppression order is entered
against the Government with respect to only one part of a
criminal case, the Government can contumaciously refuse to
proceed to trial on the uneffected counts after being denied a
Stay Dy both the trial and appellate benches, and suffer no
consequence under Barker v. Wingo for such recalcitrance.
4. Whether the appellate court erred in upholding the the
bistrict Court's use of discretion in sustaining a speedy trial
violation by applying the analysis of Barker v. Wingo to the
unique facts of this decade old case.
TABLE OF CONTENTS
Page
Table OF AuthOTiItles... wcccccccccccccccsesessccccssccssces iv
ODANION BELOW. .cccccccccccccccccsessccceccesesessesesesess l
DUPLSSLEREOMN. ccccccccccccccecccvecescccccsccecececcceceses l
Constitutional provisions Involved... .. cee eee eeeececcnces 2
Statement... cccccccccseces eee eeosesecsecesseseseseoseoseeos 2
Reasons why the writ should be denied......-.seeeeeseunees 15
1. TRIAS CASE 16 NOW MOOC..cccccccccccccsccsscccccscecs 18
2. The issues presented are not important enough
CO WOFTONE FOVIEW. cccccccccccccccccescesecsscccces 21
3. The Questions Presented by Petitioner, anc the
arguments in support thereof, are entirely
wWEEROwE GOCE. cccccccccescesesececcsesscececesenece 25
4. The Court of Appeals (and the District Court
before it) correctly decided the Questions
fairly presented. There is no conflict among
ENS CLTOULES. cccccccccsscescsesessecsvcessesasececs 30
A. Questions One: Whether the Sixth Amendment's
Speedy Trial Clause protects a defendant who
is an appellee in an on-going pre-trial
appeal filed by the Government as part of
its effort to try, convict and incarcerate
Mim OF NET. .ccccccccsccess CO ececesesecececsece 30
B. Question Two: Whether a per se rule
should be adopted allowing pre-trial criminal
appeals to consume a limitless amount of time,
thereby insuring that even clearly inappropri-
ate delay cannot impact a defendant's right to a
Speedy trial... cece escccceesesvessevees soce OF
C. Question Three: Whether every time a
suppression order is entered against the
Government with respect to only one part of a
criminal case, the Government can contumaciously
refuse to proceed to trial on the uneffected
counts after being denied a stay by both the
trial and appellate benches, and suffer no
consequence under Barker v. Wingo for such
Tecalcitrance.....csccecceees 2686 6c0s60000006 44
D. Question Four: Whether the appellate court
erred in upholding the District Court's use
of discretion in sustaining a speedy trial
violation by applying the analysis of Barker
v. Wingo to the unique facts of this
ecade Old case.......+.- eeesgececes eesece ses 4&7
i) LENGTH OF DELAY....... cece eeeeeeeces wees 47
ii) REASONS FOR THE DELAY............... sence
iii) ASSERTION OF THE RIGHT.......--eeeeees 50
iv) PREJUDICE... eee ee eeees Terrrrr rT esses 32
THE BALANCE... 2c cece eeecevcee cocccece ecoose BO
ii
Conclusi
Appendix
Should the Court want to consider a case that
raises issues of pre-trial appellete delay,
Loud Hawk is an inappropriate selection.
There exists an independent ground upon
District Court dismissed the indictment
not addressec by the appellate court or
Questions Presentec by the Government's
for Certlorari...cccccccccccccsccccccsses
ON cece ese sressessesesreeeessssesesessssees
iii
sscvcse SS
which the
which was
by the
Petition
ieaeset oon 56
iuekewe eau 57
Kéueeneeas la
TABLE OF AUTHORITIES
Cases:
Atkins v. People of the State of Michigan,
644 . 4 Tt ’
cert. denied, 452 U.S. PEG ccccecesacesce 40, 43, 44
Arnold v. McCarthy, 566 F.20¢ 1377
(Sth cir., 1338) 5666690:6056460 6520000 6b6 O00 806066 33
Bakery Drivers v. Waogshal, 333 U.S. 437,
66 S.ct. 630, 3s > 3 i aa 19
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182,
33° L.td.20 fei [aevadeccoanse 39, 365 29. 36. B97. 28,
ee. Pa: a a. ae
41, 42, 43, 464, 46, 47,
46, 50, 51, 52, 53, 55
Beavers v. Haubert, 198 U.S. 77, 25 $.Ct. 573,
i eS OR ona oon ccc cceadenecesounss< 25
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
1 i ee ae an doce n'ebbaneeeees é
Cain v. Smitn, 686 F.20 374
th aie SEMIS “dee ebceugedeaseeseeoaees 36, 44, 5)
Calmitsch v. Ricsley, 705 F.2d 351
tn Bee Pe aiea tae) 66644 6ekdebewanedece woes 20
care wv. 2ate. 269 U.S. $2, 933 $.Ct. 366,
a meeetence 1s
Chism v. Koehler, 392 F. Supp. 659 (wW.0.
Micnh., 1975), aff'd, 527 F.20 612 (6th Cir.,
1976), cert. denied, 425 U.S. 944, 96 S.Ct.
1868, 46 ..€0.2¢ 166 (1976)......... 40, 43, 45, 55
Cohen v. Beneficial Industrial Corp.,
Uede 284, e &be 4 ’
ee , ns ee eeeechaceounce 10
Dakota County v. Glidden, 113 U.S. 222,
5 S.tt. on ae UB ER } ee 20
Dandridoe v. Unitec States, 265 F.20 349
i ee i606 bee 6666566006 0450000660 39
Da - United States, 390 A.20 957
$506nb560066006666 00006086 646080008 a3. $35
Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564,
L.Ed. J) aa 25, 38, 33, 54, 35
illingham v. United States, 423 U.S. 64,
SE az 303, 46 L.ed.20 205 (1975).............. 53
iv
State v. Robinson, 3 Or. App 200,
Doescher_v. Estelle, 454 F. Supp. 942 TIT Bod 152 (1970) ..cccccccccceccccees panel we «629
CR ee Cr eee 39
State v. Sieckmann, 3 Or. App. 454,
474 P.20 367 (197
eeoereeeeeeeeeeereeereereeeee ee eee 28
Duffield v. EE 470 F. Supp. 687,
NH, D npeceendesedesedcosececess 44, 52, 54 ’
State v. White, 118 Ariz. 47, 574 P.20 840 (1977)... 28
Hanrahan v. United States, 348 F.2d 363,
68 n. 16 Fe 65)
t ‘ Strunk v. United States, 412 US 434,
cert. denied FOS US OOS. cccccccessccovecsscvacsees 45 EET SEE FEED 3T LAEd.2d 56 (1973).cccccceceeee 0
Harrison v. United States, 392 U.S. 219,
Sh S.tt. 2008, 20 L.€d.20 1047 (1968)........0.. The eee leas 166 U.S. 110, 17 S.Ct. 510,
' ee F ee . ze scatid (1968) y ? n 39 937 (| ipgtatcr ata t aeeeenee 18
Hintes Resturant St or 1983) 24 United States v. Auerbach, 420 F.2d 921
/ ee aa a ee (Sth cir-.), ren g denied, 423 F.2d 676
(1969, cert. denied, 399 U.S. 905 (1970)........ 28
Hodoes Vv. United States, 408 F.2d 543
(8th Cir., 1969) ce baeesedens6e6essesunesseneerese 54 United States v. Avalos, 541 F.2d 1100,
Hoskins v. Wainwrioht, 485 F.2¢d 1186, Tey 6), cert. denied, 430 U.S. 970.... 55
[oun Gates LOS Docc cctecssececescesecceeseceeeseces $3 United States v. Bailey, 399 F. Supp. 526
M. *? “ee eee eeeennee ore ee eee enenne 40, 44, 53
In re Williams, 393 N.£.2d 353 (Mass., 1979)........ 40
United States v. Barket, 530 F.2d 189
Tey ee 55
Jones v. Morris, 590 F.2d 684, (7th Cir.,
T9979) Cert. GENied 440 US POS.cccccseveeeeeeeeeee 44
United States v. Bishton, 463 F.2d 887
,
Kiopter = were Carolina, 386 U.S. 213, Tey ee ee ee eel 33, 34, 4]
Ct. ; L.Ed.2d 1 (1967)..... 25, 33, 38, 53 Bit
United States v. Bizzard, 674 F.2d 1382,
Benlmer, T.), cert. denied, 459 U.S. 973 (1982)... 39
Louisville & Nashville Railroad Com any v.
. 644, ie ee 4 eG. ——
‘ United States v. Black, 416 F. Supp. 59 (M.D.
Mancusi v. Stubdos, 408 U.S. 204, 92 S.Ct. 2308, Tove) atta Sat
ee ED RADU Ro ychccgsesssacacesencessince 19 FT., 6) aff'd 548 F.2d 395 (2nd Cir., 1976).. 54
; United States v. Blanca Perez, 310 F. Supp. 550
Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, ’
JE CO. 2S LOS CIMT )ccccccccccccccccccces 7s, 86. 38 Boole Veg BOVE P cccccccccccaveccsccceesse Wy 99, 9
Murrey v. Wainwriont, 450 F.2d 465 SSS 493 F.2d 594,
Paw TEU. SPE potccevecnesetsctesessess 28, 54, 55 “" eeeecs teeeeeeeeeeeeeeeeecerercces OG
Parks v. United States, 451 A.20 591 el +) aa 55 United —- v. Brown, 520 F.2d 1106 28 42 aa
* . *?* eee 8 © eee eeeereeneeeeenee ’ ,
People wv. Jamerson, 198 Colo. 92,
SO OEE CEO UD Bicccecccncsccscecccovcuscessss 29 United a ae me Se, Cir., _
People v. Johnson, 162 Cal. Rptr. 431, ‘
606 P.20 (1980) (IM Bank).ccccccccccceees 38, 54 nae 619 F.2d 831 -
*? evr eeeeee eer eeeenereneeneeeeeeeeereee
Petition of Provoo, 17 F.R.D. 183 (1955)..-.cseeeeee 38 United States v. Callowa 505 F.2d 311
. ys ‘ .
ee * Tey eevee eee weeeneneereweenwer err err eee eee 45, 51
Pollars v. United States, 352 U.S. 354,
7
t e4U FAFA NEF AMF JF eeeeeeeeeeee@
tC. 61, 1 L.ed.20 393 (1957) 25 United States v. Carini, 562 F.2d 144,
Prince . State of Rlabama, 506 F.20 693 n Tey eee ee eeeeeneeeeeeneereaerer rer er eee 44, 55
th Lig SLITS )ececcnccccccceseceecccssesess 36, 32 United States v. Cox, 475 F.2d 837
united States - Sam les, 713 F.2d 298 i Tth Cir., 1973 eer eeeeneeneeeee oe eee eeeeeeneneeenee ee 43
(7th Cife, LED wer TT Te TT TT TT LTT 33 United States v. Ewell, 383 U.S. 116,
™ *
seentiiciie a tie we en Ge 60. B6 S.ct. 773, Ee Gc SO8 GSP CASEEcccececces 9, BW
N.W. BG (1977). ccccccccccecscccces se teeeee 29 United States v. Fox, 3 Mon. 512 (1880)...... nm
. . . , bad bad 7 ’
Smith . MOO EL + 288 US 8). 89 S.Ct 9 5 se Be United States v. Goodwin, 102 S. Ct. 2485
. . seeeeeeeceooescossoeseeseee ’ zZ ee ee ee es 10, 49
State v. Helenbolt, 334 N.W.2d 400 (Minn., 19683).... 43 United States v. Graham, 538 F.2d 261
Tey, ee 54
vi
United States v. Griffin, 617 F.2d 1342
Tey eeeeeee “eee eee eer eenwnn ewe errr eee 10
United States v. Grismore, 564 F.2d 929,
Fee , cert. denied 435 US FP54....04. 44
United States v. Hart, 546 F.2d 798
n Tey ee 48
United States v. Haulman, 288 F. Supp. 755
rr * M 4 *?, 6 ee eevee eeneeeeereeereeeee eee eee © 53
United States v. Herman, 576 F.2d 1139
(Sth Sates Dl iidiss dbtdb6 devin bostnndeseeonds 42
United States v. Hill, 622 F.2d 900
Tey C rete ewes eee eee ree eee eee eee eee 39
United States v. Hillegas, 578 F.2d 453
n Tey ee ee 32
United States v. roth yeoee Motor Car Co.,
4 U.S. . . ’
Ew ee ge: Rope) oe
United States v. Horton, 646 F.2d 181
T., 7 ee eee eee 23
United States v. Jackson, 508 F.2d 1091
th Bes STTTTTIT TT TTTTITITITT TT cocccee 8]
United States v. Jenkins, 701 F.2d 850
(10th Sates ERTS SESS ant Serre soe ee mene 44
United States v. Kojima, 3 Haw. 383 (1909)......... 38
United States v. Lane, 561 F.2d 1075
oe. Sree a ctvseas 89
United States v. Lar., 520 F.2d 460
See Ge Ths -cdcdecuduceuse eee err Tr er » Ba
United States v. Latimer, 511 F.2d 498
h Bes eeccevccceses eevee cocccccccccce 44
United States v. Litton Systems, Inc., 722 F.2d
264 (5th Cir., 1984), cert. denied,
No. 83-1550 (May 14, 1984)....... 23, 28, 42, 50, 51
United States v. Loud Hawk, 741 F.2d 1184
SUE GENS gp SPOeseeesectcesecese seneaesone cose 23, 26
United States v. Loud Hawk, 564 F. Supp. 691,
a . 7 4 . 4 th CEPee tt: iesetes 23, 24
United States v. Lovasco, 431 U.S. 783,
° 44, ow * @, @:) \ . es |.
United States v. MacDonald, 456 U.S. 1],
ete " L.Ed.20 696 (1982)12, 15, 26, 27,
38, 33, 32,
33, 34, 53
United States v. Macino, 486 F.2d 750
CUR WERSG SOU ee dsacdenccucsesesenccnncsccoe Gy 85
United States v. Marion, 404 U.S. 307,
Ct. » 30 L.ed.2d 468 (1971)...... 25, 26, 53
vii
United ot ntes v. Mills, 641 F.2d 785
cert. denied,
454 ss. "902, 102 Ss. Ct. ng ee ee eee ev eeeee 48
United States v. New Buffalo, 600 F.20 368
iw n TT.» eee ee eee eereereeeeeeer ener ree ee 54, 55
United —— v. Osuna-Sanchez, 446 F.2d 566,
cert. denied, 404 U.S.
1022, 92 "S.Ct. 698. 30 L.ed.20 672 40, ) re
United States v. Fenty 353 F. Supp. 1235
* .* Tey eee ee wee weenenwnwewewnewr rr err ee 38, 40, 42
United States v. ee 540 F.2d 357
T.y eeeerereeeneeeeee ee ee ee ee ee ee ee ee 7 55
United States v. Rosenbloom, 511 F.2d 777
(ot 2) Spe eae ee TTTTTTITT TS scccccee 82
United States v. Saintil, 705 F.2d 415
Tey “ee eee eenereeeeeeeeeee “ee eee © ne ef 8 © 45
United States v. Salzmann, 417 F. Supp. 1139
-O.N.Y., 76), aff'd 548 F.2d 395
(2nd Cir., RePeuedeseosecncuce be eeosoeveces ssecaes 96
United States v. Sarvis, 523 F.2d 1177
[wets Sales ER ee ree nm 42, 44
United States v. Sebastian, 428 F. Supp. 967
W.D.N.Y.), aff'd, 562 F.2d 211
(2nd Cies Ee rere “fee “see ee 42
United States v. Simmons, 536 F.2d 827
t Foy » cert. denied,
429 * ® DP estavabebbakedateedacscocses “eee ee eee 48
United States v. oe F.2d (Nos. 64-3069,
4- n Feb. 22, 1985)....... sesccee «6 OO
United States v. Tercero, 640 F.2d 190, (9th Cir.,
1960), cert. denied 449 US 1084........... TT
United States v. pil jamonte-Mar uez ead
Ct. any CEG T6-T2-C1 983)... 18, 19
United States v. Vispi, 545 F.2d 328
[see GCEbes $aapentecces eébéesoes seeces -- 44, 54
United States v. Walker, 601 F.2d 1052
Te, ee ee eee 32
United States v. Wilson, 420 U.S. 332,
. . , 4 L.Ed.2d 232 | ee 38
United States ex rel. Mitchell v. Fairman,
. Te, eee eee eee eee eee eee 45
United States v. al 546 F. Supp. 35
M. . Qe, ee ee ee ee ee ee ee ee 53
Constitutional provisions:
U.S. Constitution:
Amendment V. (Oue Process Clause)..........esee0 7
‘Amendment VI. (Speedy Trial Clause)......... passim
vili
Statutes:
18 U.S.C. §3141-3151 (Bail Reform Act--1984)....... 36
18 U.S.C. §3146...... Ce ecccsccccces tee reeeeececesee S31
18 U.S.C. §3161 et seq. (Speedy Trial Act)..21, 24, 42
BS U.9.6. GREGG. cccccscvceccs eeeee teceeeseceeee 5
Be CiGsGe: Geese tet dcencessasKisdoss cadadhes seeoee 31]
2B U.S.C. GOSS Ch) ccvissccacas Co eccceccccesevccese§ |
Rules:
Federal Rule of Criminal Procedure 48(a).... 31, 32, 34
.
U.S. District Court of Oregon Plan for Prompt
Disposition of Criminal Cases, Section 12(b)....... » §
Law Reviews:
Casenote: MacDonald, 114 St. Mary's
Sa Ce EPs CBO Dac de desudnccnssceascenddcas 32
Note: Speedy Criminal Trial, 27 Stanford
“Caw Revite S25s TI9T3) oo cccccrccrccsecceccesceese 53
Speedy Trial, 20 Stanford Law Review 476 (19468). 53
Miscellany:
OROS OF CHOU so inno 0600066066 0cbcontececdionce 38
2 English Historical Documents......... ececesesocer - 38
ix
No. 84-1361
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
UNITED STATES OF AMERICA, PETITIONER +
v.
KENNETH MOSES LOUD HAWK, ET AL., RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RESPONDENTS’ BRIEF IN OPPOSITION
Respondent Dennis James Banks, on his own behalf as well
as on the behalf of Respondents Kenneth Moses Loud Hawk, KaMook
Banks and Russ James Redner, respectfully moves that this Court
deny the petition for writ of certiorari, seeking review of the
Ninth Circuit's opinion in this case.
OPINION BELOW
The opinion below is reported at 741 F.2d 1184.
JURISGICTION
Petitioner invokes the jurisdiction of this Court pursuant
to 28 U.S.C. 1254(1). The judgement of tne Court of Appeals
was issued on August 30, 1984, and a petition for rehearing was
denied on January 8, 1¥9c5. (The mandate issued January 16,
1985.)
CONSTITUTIONAL PROVISIONS 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
This criminal case began on November 14, 1975. Despite
continuous proceedings over the last ten years, it has yet to
oo to trial.
On November 13, 1975 the FBI issued a teletype describing
two vehicles in which it believed federal fugitives were
traveling. The next day a motor home matching the description
was stopped in the eastern Oregon town of Ontario by Oregon
State Trooper Griffiths. It contained Respondent KaMook Banks,
former co-defendants Anna Mae Aquash and Leonard Peltier}, and
at least one other unknown person.
The Trooper approached the motor home, and asked all the
occupants to step outside. Respondent KaMook Banks, her infant
child, and Peltier and Aquash emerged. In answer to his
inquiry, Griffiths was told that no one was inside. At that
same instant the vehicle sped forward, and Peltier escaped over
a fence. The vehicle was found a half mile down the highway
with no one inside.
A subsequent search pursuant to state and federal search
warrants revealed blasting caps, pocket watches, and eight
tirearms which allegedly had their serial number obliterated.
lleonard Peltier's case was severed from Respondents’, and
subsequently dismissed on motion of Petitioner.
Anna Mae Aquash died under mysterious and still unresolved
circumstances in South Dakota. The FBI interceded when her
body was found, and an autoosy was ccncucted at its direction
(during which her hands were severed and sent to Washington).
The cause of death was given as “expusure,”" and she was quickly
buried under urusual procedures. The testimony of hospital
staff revealed that thawing blood had been seen dripping from a
clear hole in her head. An independant pathologist performed
an autopsy on the exhumed body, and found that she had been
executed at close range. (CR 152)
¢
All items were secreted in various parts of the vehicle.2»3
As Trooper Griffiths stopped the motor home, a station
wagon containing Respondents Kenneth Moses Loud Hawk and Russ
James Redner pulled off the highway and stopped on the shoulder
a distance hack from the motor home. They too were arrested.
A search of their vehicle pursuant to the same warrants
produced a quantity of a substance which the Government
contends was dynamite, and which was subsequently destroyed by
state officials despite the fact that it could easily have been
stored in nearby magazines. The destruction was carried out
with the knowledge of, and in the presence of, federal agents.
Although they could have easily preserved the evidence, they
chose not te do so.4»?
2See: CR-R-160. (Note: Between the time of the
Government's first appeal and the first remand the District
Court adopted a new numbering system. In effect, the numbering
of documents was begun anew, with an "R" preceeding the
document number. However, some documents from the mid 1970s
are near unfindable because of the confusion, and are more
easily referenced by using the old system that gave each page a
separate number. These documents will be referred to by the
notation “FCR" for “former" clerk's record.)
sPetitioner's theory is that Dennis Banks was the driver
of the motor home. It bases this conclusion on the fact that
his wife was in the motor home, as was his briefcase, and that
a few fingerprints alleged to be his were found on such items
as pickle jars. The Government does not allege that his
fingerprints were found on any of the items charged in the
indictment, or on any other items that would indicate a
"recent" presence in the motor home.
In fact, Petitioner did not provide Respendents with
crucial reports that showed that other peoples' fingerprints
were found in the motor home, or other reports that evidenced
police "throw downs" in which people other than Dennis Banks
were identified as travelling in the motor home in November,
1975 along I-80N (now I-84). (These reports were received from
other defense counsel on other unrelated cases and forwarded to
Respondents). See: CR-R-160, RT 6/17/80 pps. 115-116, CR-R-
242, CR-R-216, RT 3/9/83 pps. 30, 48-4°>.
4 Petitioner alleges that "Oregon state law enforcement
officers removed the dynamite and destroyed it without
consulting federal officials." Pet. for Cert at 4. The FBI
agent present at the «xecution of the state search warrant for
the vehicles instrurted a state officer to stop his search of
the motor home and start searching the station wagon. (RT
5/9/78 pps. 211-212). The officer followed this order and
thereupon found th. substance alleged to be dynamite. It was
not until the next afternoon (during which time at least a
dozen FBI agents were in the area) that the evidence was
removed. (RT 3/22/76 p. 9, RT 5/9/78 pps. 167-168) FBI agents
were present during the removal of the alleged dynamite and its
All respondents were indicted on November 25, 1975 and
charged with possessing explosives and Firearms. Trial was set
for the week of February 9, 1976 (CR 6).
A superceding indictment was returned on December 22,
1975. Two days later Respondents filed their motion to
suopress based on the destruction of the alleged dynamite, as
well as on the destruction of the cardboard boxes and plastic
bags that the destroyed evidence was contained in. No
fingerprint analysis had been conducted. (CR 17)
On January 21, 1976 the trial date was continued for one
month on motion of Respondents Redner and Loud Hawk to March 8,
19745. The paramount reason for the continuance was problems
with defense investigation.®
On January 23, 1976 defendants Dennis Banks' case was
severed from that of the other Respondents. However, three
days later he was arrested in California. Given this change of
circumstances, all parties, including the Government, felt that
4(continued) transportation to a gravel pit for destruction.
The agents photographed the process and were present at the
destruction. (RT 3/22/76, p. 50). Surviving wrappers from the
alleged dynamite were handed to FBI agents on the scene. (RT
3/22/76 p. 51). Prior to the destruction the FBI agent in
cha:ge of all Sureau activities in Oregon arrived in the area.
He was aware of the existence of the dynamite, and that it was
potential evidence in a federal prosecution. He was also aware
that an attorney named Beverly Axelrod was present in Ontario,
Oregon, representing Respondents, and made no effort to contact
her about the destruction. (RT 5/9/78 pps. 166, 167, 169, 172.)
Based on these facts Judge Belloni found that the evidence
was “on a conveyer belt to be destroyed. And one word by a
member of the FBI would have stopped that conveyer belt.” (RT
5/9/78 p. 122)
>the only surviving evidence were wrappers which contained
not even a trace of explosive material, and photographs. The
pictures depicted two proported detonations of sticks of the
alleged dynamite connected to state police supplied primer cord
and blasting caps. Analysis of the photographs showed that the
detonation was inconsistent with that of dynamite, and
consistent with that of primer cord and blasting cap alone. RT
3/19/76, RT 5/9-10/78, CR-R-26. App. 37a-40a.
6tThe basis of the investigative difficulties (which have
not been cured to this date) became clear at a hearing in
March, 1976: The United States Attorney's Office had
instructed all “its" witnesses to refrain from talking with
rr associated with the defense. (RT 3/22/76, pps. 78, 83-
90
one joint trial with Mr. Banks would be preferable, even if the
March 8 trial date was unrealistic. (RT 2/5/76, pps. 42-48).
On FedSruary 18, 1976, the trial date was reset to May 12, 1976
in order that all defendants could be tried together. (CR-62)
The Government did not object to a joint trial on that date,
but rather objected because it was misinformed and did not
believe that Mr. Banks would waive removal and be available for
trial in May.” (FCR 994, 1004)
Despite opposition from the Government, Respondents KaMook
Banks, Redner and Loud Hawk were finally released from
custody.® Within a matter of days of their release, all
Respondents were designated "high risk" pursuant to 18 USC
§3164 and Section 12(b) of the local plan for Prompt
Disposition of Criminal Cases (CR 63). The Government has
never moved the Court to rescind that prejudicial appellation.
An evidentiary hearing on Respondents’ suppression motion
was held on March 19 and 22, 1976. Judge Belloni granted the
motion on March 31, 1976, and sunsecneed ehi evidence,
tangible and intangible, relating to" alleged dynamite. (App.
157a)
The Government filed a notice of appeal from the
suppression order on April 19, 1976 and asked the District
Court for a continuance of the trial date, which was denied.
(CR 115, CR 120). The Government made a similar request to the
Ninth Circuit Court of Appeals on April 23, 1976. Respondents
filed an opposition to that request, demanding ohservance of
7Problems ¢aused by the Government's blockade of defense
investigation were also given as a reason for the continuance.
(CR 64)
8xkaMook Banks was released on a stringent third-party
recognizance on February 5, 1976, shortly after she had given
birth in custody (to Iron-Door-Woman).
Russ Redner and Kenneth Loud Hawk were released with
similar restrictions on February 9, 1976.
Redner and Loud Hawk had moved for release as early an
November 20, 1975 (CR 3); KaMook Banks did likewise on December
22, 1975 (CR 11). These three respondents made repeated
demands for pre-trial release and for contact visits. (CR 3, CR
8, CR 9, CR 10, CR 11, CR 20, FCR 364, CR 45, RT 11/20/75, RT
12/23/75, RT 1/23/76, RT 2/2/76, RT 2/5/76). After their
release they had to make repeated demands to the Court for
permission to travel. (CR 65, CR 66, CR 67, CR 89, CR 90, CR
119, CR 123, RT 3/3/76, RT 4/29/75)
eir right to a speed ial. (FCR 1086, Respondents’ App. la-
th 9 p y tr p pp The Government refused to proceed. Judge Belloni
e f - . }
Ba) The request for stay was denied dismissed the case with prejudice, saying:
At an April 29, 1976 hearing, the Government stated that
I am ready to try the case commencing
today. Both parties have had ample time to
despite the fact that the suppressed evidence had nothing to do CS eae ee ee, re Seeey te oP Se
trial. For some reason, which I do not
understand, the Government is not, even
though two of the counts are not even
insisted on their desire to proceed to trial on May 12. (RT cua celia” Tak dnt ee
suppressed evidence. I do not want to dismiss
6/29/76. 9. 12, cn 827) P this case without a trial. The factual and
legal dispute should be heard and decided,
On May 4, 1976 the Government again asked the District aus Soars 50 80 way She Coust cen ferse the
Government to call its witnesses. My only
recourse is to dismiss the casé@ against these
four defendants.
it “could not proceed without [the suppressed evidence],"
with the gun counts. (RT 4/29/76, p.5) Respondents again
Court for a continuance. In that request the Government
conceded that Respondents “desire the case to be tried at the
Clearly, there has been unnecessary delay
in bringing these four defendants to trial.
earliest practicable opportunity." (CR 136)
) y Clearly, it's the fault of the Government.
On May 1l, 1976 the Government filed a response to a
Brady? motion in which it admitted that it was willing to During that hearing the Government expressed its desire
suffer a dismissal with prejudice for refusing to proceed to that the Court impose release restrictions on Respondents. (RT
trial.+9 5/12/76, pps. 6-8. 9-10)
On May 12, 1976 the case was called for trial. All Additionally, the Government admitted that it did not need
Respondents were ready: the suppressed evidence to go forward with the trial on the
unrelated counts. (RT 5/12/76, pps. 12-16). Tne Government
MR. ROBERTS: . , rf
filed its notice of appeal from the dismissal in open court.
Our defendants' rights under the Speedy
Trial Act as well as the Constitution of the
United States are being flagrantly violated
by the dilatory tactics of the Government in
(CR 142; RT 5/12/76, p. 12; App. 122a-123a, fn.2) The appeals
were consolidated and “expedited” under Court rules. (App.
this case. | 1238)
Wwe are ready for trial We demand our
trial; we demand our day in court now. We 4
want our total and full exoneration by a
jury. This is the day set by the Court many //
months ago for trial. We are ready and need
our trial today. | //
(RT 5/12/76, p.4) //
// :
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed 2d //
215 (1963) 1
10wr¢ hardly makes sense that defendants can be heard to
complain under Brady about being in possession of materials
which they may consider exculpatory [fingerprint analysis of
the vehicles showing prints of people other than Respondents) e
made available by the United States Government [to attorneys in
another case, who provided the material to counsel for
Respondents] some twenty-two (22) days before the present trial
dateand what in light of the upcoming dismissal could prove to
be a matter of months oefore a trial o his case ndee
there is a trial of this case at all.” TCR 140) Temphasis
added}
The consolidated appeals were arqued and submitted on
October 15, 1976. (App. 123a). A divided panel affirmed on
July 26, 1977. (id. at 88a-1183) The Government's petition for
rehearing en banc, filed on September 7, 1977, was granted on
October 17, 1977. (id. at 123a) On March 6, 1978 the Court of
Appeals (without giving up jurisdiction of the case) remanded
to the District Court in order that an evidentiary hearing be
held. Judge Belloni held that hearing on May 9 and 10, 1978.
On June 16, 1978, tne government's motion for an extension of
time until July 14, 1978 for filing its proposed findings of
fact was granted. (id. at 123a) The Findings of Fact were
issued on August 23, 1978.
The en banc court issued its opini»yn on August 7, 1979
(id. at 36a-87a), reversing the suppression order and
reinstating the dynamite counts.'! The Court found that the
Government's refusal to proceed to trial on the non-dynamite
counts constituted unnecessary delay. However, although it
found dismissal was entirely proper, it reversed the “with
orejudice” aspect. Although the Government knew it was going
to suffer a dismissal, the Court held that forewarning of the
dismissal sanction must come from the Court to the Government,
rather than the other way around. (id., at 61a)
lltwo stinging disse ats accompanied the dismissal. Judge
Hufstedler wrote that "all appellate inquiry should end with
‘affirmed’. .. That result is unsatisfactory to the majority,
and therefore, it is required to exolain why the fact of
prejudice is nevertheless not prejudice justifying
suppression." (id., at 75a-76a)
Judge Ely wrote: "Not only does the majority disregard the
critical determinations of the district judge, but also it
holds that the judge was clearly wrong in making a
determination based upon conflicting testimony. In sum, the
majority now does no more in affirming the convictions (sic)
that (sic) it might have done upon the record before us in the
original en banc proceedings. In fact it does less, for it
accords absolutely no weight or deference to the careful review
of the district judge upon remand and the guidanee with which
the district judge has now favored us, and which, in the first
en banc disposition, the majority wrote that it wanted. I do
not asperse the good faith or the motives of any of my
colleagues. All of them know that I hold each in the highest
esteem. Notwithstanding, I record my belief that the
proceedings in this appeal, with two hearings before the full
court, and all the deliberations that followed, reflect a
futile exercise. (Id., 86a-87a)
Respondents’ Petition for rehearing with suagestion for
rehearing en banc was denied October 1, 1979; their Petition
for Certiorari was likewise denied Marcn 3, 1980. The Mandate
was received in the District Court on March 20, 1980. (CR-R-30)
Following remand, the Government argued that the non-
dynamite counts should be reinstated; Respondents argued that
they should remain dismissed. (RT 4/14/80, pps. 5-7, 21-22).
On May 12, 1980 Judge Redden ruled that if the Government
wished to proceed with those counts, a new indictment would be
necessary. (RT 5/12/80, p.7)
Although the Government had indicated that it was
satisfied with the Decemver 1975 indictment, it »rought forth a
new indictment with increased charges. Since some of the
charges were new, and exposed Respondents to greater risk of
incarceration, motions to dismiss for vindictive prosecution
were filed. (CR-8-97)
After hearing arguments on the vindictive prosecution
claim,?2 Judge Redden issued an (amended) Order on August 12,
1980 denying the motion as toward Respondents Dennis Banks,
Russ Redner and Kenneth Loud Hawk. However, the Order granted
a dismissal with prejudice for Respondent KaMook Banks. (CR-R-
120, CR-R-122)
//
//
//
//
12arguments on other motions were also heard in the
District Court after remand. One motion and hearing produced
evidence that Respondents had been victims of Government
invasion into tneir private lives in a manner which the
Government had previously denied. See: RT 6/23/80 pps. 153-
183; CR-R-75, CR-R-76, CR-R-85.
Another motion was for disclosure of electronic
surveillance, filed by Respondents in 1975 and renewed in 1980.
However, it was not until March 10, 1983 that the Government
responded to that motion. On that date United States Attorney
Charles Turner admitted that his office “nad been dilatory.
{The motion] had been pending for seven years." (RT 3/10/83, p.
3)
Dennis Banks filed a notice of appeal from the denial of
the vindictive prosecution claim on August 15, 1960.13 Russ
Redner did likewise on August 21, 1980, as did Kenneth Loud
Hawk on August 22, 1980. The Government did not file its
notice until Septemoer 2, 1980. (CR8-R-125, 8-130, R-133, R-139)
Respondents Dennis Banks, Redner and Loud Hawk filed their
opening orief on Octeber 15, i980, and the Government filed its
brief on November 3, 198(. The case was arqued and submitted
on January 7, 1981. .
On July 29, 1982 the Court of Appeals reversed the
dismissal of the indictment as to KaMook Banks and also
dismissed the appeal of the other Respondents under the
authority of United States v. Hollywood Motor Car Co., 458 U.S.
263, 102 S. Ct. 3081, 73 L.Ed.2d 754 (1982). Respondents'
Petitions for rehearing and for certiorari were denied on
October 5, 1982 and January 10, 1983 respectfully (459 U.S.
1117).14 the Mandate of the Court of Appeals issued on January
31, 1983. (App. 5a)
Trial was set to degin on April 11, 1983, but was reset to
May 3, 1983 at the request of the Government. Two additional
continuances were made on the Court's motion. Respondents
objected to each continuance. (App. 125a)
13Respondents Dennis Banks, Redner and Loud Hawk took
their appeal on the authority and reasoning of United States
v. Burt, 619 F.2d 831 (9th Cir., 1980) and United States v.
Griffin, 617 F.2d 1342 (9th Cir., 1980). They were taken in
good faith and not for reasons of delay. (App. l4&a, 1125a)
Again the appeals were consolidated and “expedited.” (CR-
R-144, CR-R-145, CR-R-146, CR-R-149)
14Respondent KaMook Banks filed her Petition for
Certiorari based on the claim that facts underlying her
vindictive prosecution claim not only distinguished her case
from United States v. Goodwin, 102 S. Ct. 2485 (1982), but
provided strong support for a claim of vindictive prosecution
based on the reasoning of that case.
The remaining Respondents filed their Petition alleging
that severance of te cases would allow KaMook Banks to create
the law of this case before this Court while they could not
participate. The result would have been not only a deprivation
of their appellate rights, hut also a-needless waste of
judicial, governmental and defense resources. This claim was
based on the holding of Cohen v. Beneficial Industrial Corp.,
337 U.S. 541, 69 S. Ct. 1221, 93° CL. Ed. 1528 (1949), and the
line of this Court's cases criticizing piecemeal disposition of
cases on appeal.
19
On May 20, 1983 the District Court again dismissed the
indictment, finding that Respondent's rights to a Speedy Trial
inder the Sixth Amendment and to Due Process were violated by
the delay. The Government filed its notice of appeal on June
17, 1983. Again, the appeal was “expedited.” (CR-R-271)
The Government filed its opening brief, after requesting
an axtenaten, on August 16, 1983. Respondents submitted their
brief on September 1 1983.15 Argument was heard on January 4,
1984, and the Court of Appeals affirmed on August 30, 1984.
(Anp. la-25a)
‘a
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15the Government petitioned both the District Court and
the Ninth Circuit to allow it to keep its subpoenas alive
during the pendancy of this appeal. Both Courts denied the
request. (CR-R-278, CR-R-281, CR-R-289)
ll
The Court of Appeals applied the four-prong balancing test
of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101
(1972) (length of delay, reason for delay, assertion of right
and prejudice) to the unique facts of this case, and upheld the
decision of the District Court ‘hat Respondents had been denied
their right to a speedy trial.!® The Court gave effect to the
holding of United States v. MacDonald, 456 U.S. 1, 102 S.Ct.
1497, 71 L.Ed.20 696 (1982) by concluding that a person is
"accused" when the Government appeals an Order dismissing a
case over its objection.!7
The Court noted that Respondents
were subject to imposition of restraints at any time during the
pendency of the appeal, and were still sufferéng under the
interference caused by the continuing public accusation
embodied in the Government's viyorous and continuous efforts to
reinstate the charges against them. (App. 8a)
In discussing tne first pre-trial appeal the Court
distinguished the gun counts from the dynamite counts. The
delay attendant to the former was considered “wholly
unnecessary" given the Government's irresponsible refusal to
proceed to tria’, and was accordingly balanced heavily against
//
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l5the Government petitioned both the District Court and
the Ninth Circuit to allow it to keep its subpoenas alive
during the pendancy of this appeal. Both Courts denied the
request. (CR-R-278, CR-R-281, C2-R-289)
l6The District Court had also dismissed the case because
the delay had also violated Respondent's due process rights.
The Appellate Court's opinion did not even address this
secondary basis of dismissal.
171m MacDonald the charges were dismissed on the motion
of the Government, rather than over its objection. MacDonald
was no longer a party to any legal proceeding designed to
bring him to trial on any charges, and was no longer “the
subject of public accusation." MacDonald 456 U.S. at 9.
12
tne Government. (Id., at 12a) The Court found that the
Government's appeal cf dynamite counts was reasonable and would
justify a reasonable delay, but that a forty-six month delay on
a pre-trial appeal was not reasonable. (Id. at 12a-13a)
Therefore, this delay was also put on the Government's side of
the scale, but allocated less weight.
As for the second appeal, the Court did not weigh the
delay against the Government nor Respondents, as it did rot
consider the twenty-three months consumed in this “expedited”
appeal “undue delay." However, it “wholly excused" the
“additional delay of six months that occurred as a result of
the defendants seeking certiorari from the judgment of this
court."'8, 19 (app. 15a)
Both the majority and Judge Wallace in dissent found that
Respondents had “adequately asserted their rights tc a speedy
trial," having objected to delay as early as May i2, 1976, and
having continued to do so after each remand. (App. 15a, 24a)
The Court agreed with the District Court's finding of
prejudice to the defense (particular witnesses who had died or
nad completely lost their memories) and to the defendants
(anxiety from unresolved criminal charges over seven-and-a-half
years) from this “inordinate delay." However the Court did not
entertain a detailed analysis of the prejudice in this case, as
it concluded that prejudice need not be shown in order to
successfully assert a violation of speedy trial rights. Thus,
this factor was not weighed heavily in the balance. (App. 1lé6a-
17a)
//
//
187¢ should be noted that the District Court considered
the delay on the second appeal (which it calculated as twenty-
nine montiis) to ave been unduly long, as it was an “expedited”
appeal that followed on the heels of a four-year appellate
delay.
19the Court's calculation of six months delay attendant to
the process of seeking certiorari is curious. The petitions
were filed in early December, 1982 and were denied on January
10, 1983. Respondents' petitions for reconsideration were not
Genied until October 5, 1982.
13
The Court found all four factors on the side of
Respondents, and therefore upheld the District Court's
dismissal. (Id., at 17a-182a)
The Government filed a Petition for Reconsideration, which
was denied on Janu y 8, 1985. With no Motion to Stay Mandate
having been filed, the Mandate issued on January 16, 1985.
Thereafter the Government filed an untimely Motion to Stay
Mandate followed by a Motion to Recall Mandate. These moticns
were denied by the Court of Appeals on February 28, 1985
(Respondents' App. 9a-204a). The Government filed its Petition
for a Writ of Certiorari on February 26, 1985,
//
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4/
14
REASONS WHY THE WRIT SHOULO BE DENIED
Since the Government willingly let the mandate of the
Circuit Court issue, this case is now moot. The Court of
Appeals upheld a pre-trial dismissal of the indictrent with
prejudice, and the issuance of the mandate put that Order into
effect.
Even if this were still a live case, the issues it
presents are not important enough to warrant review. No cases
have deen halted in the appellate courts awaiting this Court's
review of Loud Hawk. In fact, the decisions of the District and
Circuit enucts have been cited only twice in the last twenty-
two months, ard not for any proposition associated with the
Questions Presented to this Court. Out of one hundred thirty
four reported federal cases involving federal defendants'
claims of denial of a speedy trial (since the date of the
District Court dismissal in thts case) only seven cases raised
Nlausable claims grounded in purely constitutional issues (87%
raised tre Speedy Trial Act). The instant case is the only one
of the one hundred fifty raising Sixth Amendment issues of
appellate delay.
The Questions Petitioner asks this Court to consider are
grounded in meritless argument. The analysis presented by the
Sovernment requires a drastic departure from the careful
balancing approach of Barker v. Wingo. Rather than allow a
balancing of factors, Petitioner seeks to sudDstitute a test
which it could never lose. This test would afford Sixth
Amendment protection only to those defendants who having
successfully defended against Government efforts to reinstate
indictments do not need it.
Furthermore, the decision below reflects a correct
aprolication of United States v. MacDonald, 456 U.S. 1, 102
S.Ct. 1497, 71 L.td.20 696 (1962) Since the Government has
never equivocated from its accusation of crime, nor sought
Gismissal of any charges, and has attemated (and could always
Nave renewed its attempt) to have bail restrictions imposed on
15
defendants during an appeal, Respondents were continuously
"formally accused." The appeal was bt a part of the
Government's unhalting effort to try, convict, and incarcerate
them. There are no cases in conflict with the holding of the
Court of Appeals.
Likewise, there are no cases in conflict with the decision
below that a per se rule should not be adopted allowing pre-
trial criminal appeals to consume limitless amounts of time.
Tnis rule that the Government seeks would exclude even clearly
inappropriate appellate delay from scrutiny under the Sixth
Amendment.
Tn2 Court of Appeals was equally correct in rejecting the
Government's desire to escape responsibility under the Sixth
Amendment for the delay it willfully created. To have
sustained the Government's argument would have been to hold
that whenever a suppression order is entered against the
Government with respect to only one part of a criminal case, it
can contumaciously refuse to proceed to trial on the una’ *ected
counts after being denied a stay by both the trial and
appellate benches, and suffer no consequence under Barker v.
Wingo for such recalcitrance.
Given the outrageous length of pre-trial delay in this
1975 case, the fact of the Government's refusal to proceed to
trial in violation of Orders of two courts, the strong
assertion of speedy trial rights by defendants, and the
personal and defense-related prej'dice suffered, the Circuit
Court was correct in finding all four Barker factors weighing
in Respondent's favor. There is no error below for this Court
to correct.
16
Should this Court nonetheless desire to consider an issue
of pre-trial appellate delay and the Sixth Amendment, the Loud
Hawk case is an inappropriate selection. This is a mutant
speedy trial case with a muddy re‘tord. It would provide poor
material from which to weave any principle. Bizzare cases make
incomprehensible law.
Finally, review should not be granted because the District
Court found an independant basis for dismissal (a due process
violation) which was neither addressed by the appellate court
nor by the Questions Presented by the Government's Petition for
Certiorari. It would be absurd for this Court to do as the
Government asks (Petition for Certiorari at 27-28 fn. 21) and
take upon itself the task of reviewing a purely factual
question on a voluminous record without the aid of any prior
appellate review.
17
lL. This case is now moot.
The Court of Appeals denied the Government's Petition for
Reconsideration on January 8, 1985. As no timely motion to
stay mandate was filed, the mandate issued on January 16, 1985.
It is clear that the issuance of a mandate does not
deprive this Court of jurisdiction. Aetna Casulty and Surety
Co. v. Flowers, 304 U.S. 464, 67 S.Ct. 798, 91 L.Ed. 1024
(1947); Carr v. Zaja, 283 U.S. 52, 51 S.Ct. 360, 75 L.Ed. 836
(1931); Louisville & Nashville Railroad Company v. Behlmer, 169
U.S. 644, 18 S.Ct. 502, 42 L.Ed. 889 (1898); The Conqueror, 166
U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937 (1896). However, when the
mandate in this case issued, it put into the effect Judge
Redden's Order dismissing the case with prejudice. No
indictment is now pending, and no new indictment can be issued
even if this Court reversed the judgement of the Court of
Appeals.
In United States v. Villamonte-Marquez, __U.S._, 103
S.Ct. 2573, 77 L.€d.2d 22 (1983) this Court rejected a mootness
argument in a criminal case. The Court of Appeals had reversed
convictions in that case, finding a Fourth Amendment violation.
After the mandate of that Court issued, the Government
dismissed the underlying indictment pursuant to FRCrP 48(a). A
month thereafter the United States filed its petition for
certiorari. 77 L.—d.20d at 34-35.
In finding no mootness prodlem the Court stated:
The Government has sought review of the
Court of Appeals' decision reversing
respondent's convictions. Ordinarily our
reversal of that decision would reinstate the
judgment of conviction and the sentence
entered by the District Court. . . The fact
that the Government dic not obtain a stay,
thus permitting the issuance of the mandate
of the Court of Appeals, would not change the
effect of our reversal. . . Under our
reasoning in Mancusi v. Stubbs [citation
omitted], the absence of an indictment does
not require a contrary conclusion. Further,
it is settled law that the preliminary steps
in a criminal proceeding are “merged” into a
sentence once the defendant is convicted and
sentenced. . . Upon respondents’ conviction
and sentence, the indictment that was
returned against them was merged into their
convictions and sentences, thus obviating any
need for a separate reinstatement of the
18
original indictment. . . [A] successful
effort on the part of the Government to
reverse the judgment of the Court of Appeals
would have the effect of reinstating the
judgment of conviction.
Villamonte-Marquez, 77 .Ed.2d at 26, fn.2.
Since Respondents have never been convicted, there is no
judgement for the dismissed indictment in this case to merge
into.
Furthermore, unlike both Villamonte-Marquez, supra, and
Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293
(1972), there is nothing further that the District Court could
do even if this Court reversed the Judgement of the Court of
Appeals.
In Mancusi, supra, the mandate of the appellate court
(ordering that a prior Tennessee conviction was
unconstitutional and could not be used for enhancement purposes
at sentencing) had issued and, pursuant to that order, Stubdis
had been resentenced. H2 received the same sentence as before,
however, because still another conviction from Texas was used
as a predicate.
This Court held that
Until it can be said with certainty that
the New York courts may validly resentence
respondent to the same term as they imposed
prior to the decision of the Court of Appeals
now under review here, petitioner continues
to have én interest in the availability of
the "ennessee conviction as a support for
second-offender sentencing of respondent.
Mancusi, 408 U.S. at 206. It based its reasoning on two cases,
both of which stand for the proposition that obedience to a
judgement which has taken effect does not necessarily give up
the ability to have that judgement reversed.
In Bakery Drivers v. Wagshal, 333 U.S. 437, 68 S.Ct. 630,
92 L.Ed. 792 (1948) a union had appealed from an injunction
issued by the District Court. The Court of Appeals dismissed,
and thereafter the union lifted its boycott. The case was not
moot, however, as the union was merely obeying the injunction
while attempting to have it reviewed and reversed.
Likewise, in Dakota County v. Glidden, 113 U.S. 222, 5
S.Ct. 428, 28 L.£d.981 (1885), this Court rejected another
mootness argument:
There can be no question that a debtor
against whom a judgment for money is
recovered may pay that judgment and bring a
writ of error to reverse it, and if reversed
can recover back his money. And a defendant
in an action of ejectment may bring a writ of
error, and failing to give a supersedeas
bond, may submit to the judgment by giving
possession of the land, which he can recover
if he reversed the judgment by means of a
writ of restitution. In both these cases the
defendant has merely submitted to perform the
judgment of the court, and has not thereby
lost his right to seek a reversal of that
judgment by writ of error or appeal.
113 U.S. at 222.
Thus, money given up after the issuance of a mandate can
be recovered if the judgement is reversed. Likewise, land
given up can be gotten back.
In criminal cases the Government can have one leg
upholding a sentence declared valid as long as there is a
possibility that another leg which is presently accomplishing
the same task may be withdrawn. Indeed, the Government can
decide that it does not want to further prosecute a case
without giving up on having a formerly secured judgement of
conviction reinstated.
However, where the Government has willingly let a
dismissal with prejudice take effect on a ten-year-old case,
knowing that there is no prior judgement that can de reinstated
if the appellate judgement is reversed, there is ‘no case to be
continued. When an appellate mandate upholding a dismissal
with prejudice issues, it can only mean that the Order of the
District Court has finally been put into effect, and that the
appellate process is terminated. Calmitscn v. Ricsley, 705 F.2d
351 (9th qir., 1983) For the first time in the decade long
life of this case, a dismissal finally means that the case is
over, thus rendering the petition for certiorari moot.
2. The issues presented are not important enough to warrant
review.
The questions that this case provide are ones that are
limited to interesting, but nonetheless rather academic and
infrequent queries under the Speedy Trial Clause of the Sixth
Anendment. The Government asserts that the issue of pre-trial
appellate delay is important enoujh to merit the attention of
this Court. The facts do not bear out the Government's
contention.
Since the date of Judge Redden's dismissal on Speedy Trial
Clause grounds (May 20, 1983) there have been one-hundred
thirty four (134)29 reported federal decisions involving
demands by federal defendants for dismissal due to alleged
denial of a speedy trial. Ninty-four (94) of those cases
relied on statutory Speedy Trial gqrounds alone.?!
20 These statistics contain cases reported as of March 8,
1985. The cases are not listed in the table of authorities, as
they are included for statistical rather than precedential
reasons.
2lthe Speedy Trial Act is 18 U.S.C. Section 3161 et se
The cases are: UNITED STATES v. ANDERTON, 752 F.2d 1005 Sth
Cir., 1985); UNITED STATES v. BROWN, F.2d » (No. 83-
5330), (9th Cir., 1985); ONTTE D STATES v. BORMAN, 752 ©.20 595
Ci2th Ebe., 1985); UNITED STATES v. GOL OMe, F.2d , ie.
590, Docket 84-1248), (2nd 4 1985); UNITED STATES v.
KROESSER, 759 by 2d 833 (llth Cir., 1985); UNITE V.
LATHAM, .2d (No. 83-2686), (7th Cir., 1985);
UNITED STATES. v. RODRIGUEZ - FRANCO, 749 F.2d 1555 (llth Cir.,
; UN STATES v. TIBBOEL, F.2u » (No. 84-1072),
(7t. Cir., 1985); UNITED STATES v. v. VIGII-™M MONTANEL, F.2d
, (No. 84-5159), (llth Cirt., 1985); UNITED STATES v. ADAMO,
372 F.2d 927 (6th Cir. 1984); UNITED STATES v. BECK, 729 F. 4
1329 (llth Cir., 1984); UNITED > STATES v. BLACK, 733 F.2d 349
(4th Cir., 1984); UNITED STATES v. BOURNE, 743 F. 2d 1026 (4th
Cir., 1984); UNITED STATES v. BROWN, 736 F.2d 807, (lst Cir.,
1984); UNITED STATES v. BRYANT, 726 F.2d 510, (9th Cir.,
1984); UNITED STATES v. CAREY, 746 F.2d 228 (4-n Cir., 1984);
UNITED SLM LL ig F.2d 1508 (llth Cir., 1984);
“Vv. DENNIS, 737 F.2d 617 (7th Cir., 1984);
ONITED SYATES v_ DIPASUUALE, 740 F.2d 1282 (3rd Cir., 1984);
751 F.2d 436 (lst Cir., 1984);
ONITED-STATES + FREY, 735 F.2d 350 (9th Cir., 1984);
UNITED STATES V~ GONSALVES, 735 F.2d 638 (lst Cir., 1984);
UNITED STATES v. GON TALE? 748 F.2d 74 (2nd Cir., 1984);
UNTTED STATES vi HARRIS 724 F.2d 1452 (9th Cir., 1984);
D STATES v. HELDT, 745 F.2d 1275 (9th Cir., 1984);
UNITED “SYATES V. HENDERSON, 746 F.2d 619 (9th Cir., 1984);
728 F.2d 421 (10th Cir., 1984);
ORT STATES y COOHNECTL, 739 F.2d 702 (2nd Cir., 1984);
UNITED STATES v. MARTIN, 742 F.2d 512 (9th Cir., 1984);
UNITED STATES v. MARTINEZ, 749 F.2d 601 (10th Cir., 1984);
UNITED STATES v. MARTINEZ, 749 *.2d 623 (llth Cir., 1984);
UNITED STATES v. MASSA, 740 F.20d 629 (8th Cir., 1984);
ONTTED STATES 37 MESTRENCELO, 733 F.2d 793 (llth Cir., 1984);
21
Twenty-one cases rais’< both constitutional and statutory
speedy trial grounds, but of those only six raised cognizable
2\ (continued) UNITED STATES v. OTERO-HERNANDEZ, 743 F.2d 857
(lltn Cir., 1984); UNITED st v. KER, F.2d 1151 (8th
Cir., 1984); UNITED STATES v. PIROLLI, 742 F.2d 1382 (llth
Cir., 1984); UNITED STATES v. POLLOCK, 726 F.2d 1456 (9th
Cir., 1984); UNITED STATES v. PRINGLE, 751 F.2d 419 (ist Cir.,
1984); UNITED STATES v. PUETT, 735 F.2d 1331 (llth Cir.,
1984); UNITED STATES v. R ICHMOND, 735 F.2d 208 (6th Cir.,
1984); UNITED STATES v. RUBIN, 732 F.2d 837 (llth Cir., 1984);
UNITED STATES v. RUGGIERO, 726 F.2d 913 (2nd Cir., 1984);
UNTTED S_v¥. RUSH, 738 F.2d 497 (1st Cir., 1984);
UNITED STATES v. RUSSO, 741 F.2d 1264 (llth Cir., 1984);
UNITED STATES v. SARRO, 742 F.2d 1286 (llth Cir., 1984);
UNITED § —_v: SAVOCA, 739 F.2d 220 (6th Cir., 1984);
UNITED STATES v. S SCAIFE, 749 F.2d 338 (6th Cir., 1984);
UNITED STATES Vv. SEVERDIJA, 723 F.2d 791 (11th Cir., 1984);
UNITED ST -¥= SHAID, 730 F.2d 225 (Sth Cir., 1984);
UNITED STATES Vv. SMITH, 750 F.2d 1233 (4th Cir... 1984);
UNITEO STATES v. STEAD, 745 F.2d 1170 (8th Cir., 1984);
UNITED STATES v. STOCKWELL, 743 F.2g 123 (2nd Cir., 1984);
UNITED STATES v. TEDESCO, 726 F.2d 1216 (7th Cir., 1984);
UNTTED STATES v. TERTROU, 742 F.2d 538 (9th Cir., 1984);
UNITED STATES v. TURNER, 725 F.2d 1154 (8th Cir., 1984);
UNITED STATES v. VAN BRANDY, 726 F.2d 548 (9th Cir., 1984);
UNITED STATES v. WALBORN, 730 F.2d 192 (Sth Cir., 1984);
UNTIED STATES Vv. WHITAKER, 722 F.2G 1533 (llth Cir., 1984);
UNITED STATES v. WIEHOFF, 748 F.2d 1158 (7th Cir., 1984);
UNTTED_ STATES v. YUNIS, 723 F.2d 795 (llth, Cir., 1984);
UNITED STATES V. ZIetie, 734 F.2d 1447 (llth Cir., 1984);
UNTTEO STATES v. CAMPBELL, 706 F.2d 1138 (11th Cir., 1983);
UNITED STATES v. CAPARELLA, 716 F.2d 976 (2nd *Cir., 1983);
UNITED STATES v. DALY, 716 F.2d 1499 (9th Cir., 1983);
UNITED STATES Vv. DUNN, 706 F.2d 153 (Sth Cir., 1983);
UNTTED STATES Vv. GARRETT, 720 F.2d 705 (1983); UNITED
STATES v. HAUSMANN, 7IIT F.2d 615 (Sth Cir., 1983); UNITED
STATES v. HOPE, 714 F.2d 1084 (11th Cir., I[983);
UNITED STATES V. HOWELL, 719 F.2d 1258 (Sth Cir., 1983);
UNITED STATES v. JANIK, 723 F.2d 537 (7th Cir., 1983);
UNTTEO STATES v. McCOWN, 711 F.2d 1441 (9th Cir., 1983);
UNITED STATES v. MANFREDI, 722 F.2d 519 (9th Cir., 1983);
UNITED STATES Vv. MULHERIN, 710 F.2d 731 (llth Cir., 1983);
UNITED _v¥. NOVAK, 715 F.2d 810 (3rd Cir., 1983);
UNITED STATES v. PAGAN, 714 F.2d 225 (2nd Cir., 1983);
UNITED STATES V~ PEREZ-REVELES, 715 F.2d 1348 (9th Cir., 1983);
UNITED 2V¥: PITEO, 726 F.2d 50 (2nd Cir., 1983);
UNITED STATES V. SALOIVAR, 710 F.2d 699 (llth Cir. 1983);
UNITED STATES v. SCHMIDT, 711 F.2d 595 (Sth Cir., 1983);
UNITED STATES v. SHAHRYAR, 719 F.2d 1522 (llth Cir., 1983);
UNTTED STATES v. SNYDER, 707 F.2d 139 (Sth Cir., 1983);
UNITED STATES V. WILLIAMS, 711 F.2d 748 (6th Cir., 1983);
UNITED STATES v. WILSON, 720 F.2d 608 (9th Cir., 1983);
TE FALVO, 598 F.Supp. 873 (1984);
UNITED STATES Vi GREEN, 582 F.Supp. 265 (1984);
UNTTEO STATES Vv. JUVENILE, 599 F.Supp 1126 (1984);
UNITEO STATES Vv. RAMOS, 588 F.Supp. 1223 (1984);
UNITEO STATES v. SMITH, 588 F.Supp. 1403 (1984);
UNTTED STATES V. WOLLSCHLAGER, 588 F.Supp. 1572 (1984);
COVE.NMENT OF THE VIRGIN ISLANDS v. FRANCIS, 98 F.R.D. 626
3); UNI TATES v. SMITH, 563 F.Supp. 217 (1983);
UNITEO STATES _v. TEST, S8G F.Supp. 800 (1983);
UNITED STATES v. BRADLEY, 566 F.Supp. 1392 (1983) (This one
case also raised Issued under the Interstate Agreement on
22
Sixth Amendment Claims. 22+ 23 Only eighteen out of the one-
hundred thirty four cases raised nurely constitutional speedy
trial claims, and of those eleven were either frivolous or
near frivolous.24
Of the seven reported decisions that raised purely
constitutional claims containing plausible arguments, five were
based on indictments so old as to predate the sanctions of the
Speedy Trial Act.2> (See: United States v. Horton, 646 F.2d 181
{5th Cir., 1981]; United States v. Litton Systems, Inc., 722
F.2d 264 [5th Cir., 1984]) Two of those five reported opinions
were U.S. v. Loud Hawk,
22 The Six cases that raised non-frivolous constitutional
Claims were: UNITED STATES v. BOUNOS, 730 F.2d 468 (7th it
1984); UNIT v. Y, 3 F.2d 1066 (5th Cir.,
1983); UNITED STATES v. FELTO! ON, 592 F.Supp. 172 (1984);
UNITED STATES v. HERNANDE?, 724 F.2d 904 (llth Cir., 1984);
UNITED STATES v. M HELL, 723 F.2d 1040 (lst Cir., 1983);
UNITED STATES v. SAMPLES, 713 F.2d 298 (7th Cir., 1983).
23the other fifteen cases, where claims to which the Sixth
Amendment were clearly inapplicahle were:
UNITED STATE v. MARUSKA, 717 F.2d 1222 (8th Cir., 1983);
UNITED STATES v. AMADO, F.2d » (No. 84-1784), (lst Cir.,
; UN v. AMBROSE, 707 F.2d 1209 (llth Cir.,
1983); “UNITED STATES v. AUSTIN, 99 F.R.D. 292 (1983);
UNITED STATES v. BROWN, 720 F.2d 1059 (9th Cir., 1983);
UNITED STATES v. GARCIA, 741 F.2d 363 (llth Cir., 1984);
UN v. K » 734 F.2d 409 (9th Cir., 1984);
UNITED STATES v. KUBIiAK, 704 F.2d 1545 (llth Cir., 1983);
UN v. MICHEL, 590 F.Supp. 1135 (1984);
UNITED STATES v. PAJARI, 715 F.2d 1378 (8th Cir., 1983);
UN v. UE, 707 F.2d 493 (llth Cir., 1983);
UNITED STATES v. REME, 738 F.2d 1156 (llth Cir., 1984);
UNITED STATES v. ROPER, 716 F.2d 611 (4th Cir., 1983);
UNITED STATES V. SANCHEZ, 722 F.2d 1501 (llth Cir., 1984);
UNITED STATES v. SNOWDEN, 735 F.2d 1310 (llth Cir., 1984).
24TIEMENS v. UNITED STATES, 724 F.2d 9278 (llth Cir.,
1984); UNITED STATES v. BROWN, 742 F.2d 359 (7th Cir., 1984):
UNITED v. Ne, 7 F.2d 572 (6th Cir., 1984);
UNITED STATES v. JORGE-SALON, 734 F.2d 789 (llth Cir., 1984);
UN v. MARLER, 3 F.Supp. 1456 (1984); UNITED
STATES v. McGIFFEN, 578 F.Supp. 899 (1983); UNITED STATES v.
_MILLS, 704 F.2d 1553 (llth Cir., 1983); UNITED STATES v_
~NAPPER, 574 F.Supp. 1527 (1983); UNITED STATES v. PULLEN N, 721
F.2d 788 (llth Cir., 1983); UNITED v. WALKER, F.2d
1062 (Sth Cir., 1983); UNITED STATES v. WILLIAMS, 738 F.2d 172
(7th Cir., 1984).
25UNITED STATES v. DELEON, 710 F.2d 1218 (7th Cir., 1983);
UNITED STATES v. DENNARD, 722 F.2d 1510 (llth Cir., 1984);
UNITE Vv. L N_ SYSTEMS, INC., 722 F.2d 264 (5th Cir.,
T984); UNIteD STATES v. 1 LOUD HAWK, 7: 41 F.2d 1184 (9th Cir.,
1984); UNITED STATES v. LOUD HAWK, 564 F.Supp. 691 (1983);
UNITED STATES v. RICHARDS, 707 F.2d 995 (8th Cir., 1983);
UNITED STATES v. SOLOMON, __ F.2d » (No. 84-3069, 84-3070),
9th Cir.,
23
In the last twenty-two months, seventy-one percent of the
claims of denial of speedy trial were based on the Act alone.
Fighty-seven percent of the claims raised the Act, while less
than ten percent raised non-spurious constitutional claims.
Only five percent of the cognizable claims asserted purely
constitutional grounds (and two out of those seven claims are
this case). If aged cases (to which the Act could not apply)
are eliminated from consideration, then less than two-percent
of the one-hundred thirty four claimed deprivations of speedy
trial were, like that of the Loud Hawk case, based on good
faith invocations of tine Sixty Anendment.
However, the Loud Hawk case is the only case of those
reported since May, 1983 to raise the even rarer issue of Sixth
Amendment deprivation during interlocutory appeal. It is
therefore unremarkable that the District Court decision has
been cited only once, and that by Judge Redden on an
immigration case, soley for the purpose of comparison of
"Kafkaesque .. . principle[s]." See: Hi-Hat Restaurant,
Inc. v. I.N.S., 569 F. Supp. 776 (0.C. Or., 1983).
Although the Ninth Circuit decision has existed for seven
months, it also nas only been cited once, and not on issues of
appellate delay. See: United States v Solomon, F.2d
(NoS. 84-3069. 84-3070) (9th Cir., Feb.22, 1985). We know of
no proceeding which has ground to a halt in the appellate
courts, waiting for this Court to rule on this case.
The facts show the question of pre-trial appellate delay
to be a rare one at best. Rather than the Loud Hawk case's
embodying a pressing question of importance that demands this
Court's attention, it contains an endangered and mutant issue
which, however interesting and bizarre, is sterile.
.
3. The Questions Presented by Petitioner, and the arguments in
support thereof, are entirely without merit.
The Government's nroposed questions have as a foundation
assumptions that are not only illogical, Sut are abhorrent to
the method of analysis of speedy trial questions dictated by
tnis Court.
The case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182,
33 L.Ed.2d 101 (1972) defines the analytic approach this Court
nas ordered for examining a claim of deprivation of the right
to a speedy trial.26
Rejecting “inflexihle approaches," the Court adopted a
“balancing test" which required trial courts to look at the
peculiar facts of each case in a standardized framework.
"[SJome of the factors which courts should assess in
determining whether a particular defendant nas been deprived of
his right .. .[include lJength of delay, the reason for the
delay, the defendani's assertion of his right, and prejudice to
the defendant." 407 U.S. at 529-530. The subsequent decision
of this Court in Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188,
38 ..Ed.20d 183 (1973) affirmed the mandate that "courts must
engage in a difficult and sensitive balancing process,” rather
than merely examine each case to see if a particular factor
euniste. 438 U.S. et 246.
26There were only a few occasions prior to Barker wherein
this Court considered a speedy ‘trial claim. From the repeated
ad hoc attempts to approach the subject that those cases
represented, it became clear that a standardized approach to
the area was essential. Barker represents that approach. For
development of the law see: Beavers v. Haubert, 198 U.S. 77, 25
S.Ct. 573, 49 L.Ed.20d 950 (1904); Pollard v. United States, 352
U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United
States v. Ewell, 383 U.S. 119, 86 S.Ct. 773, 15 L.Ed.2d 627
T1966); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 98,
18 L.Ed.20d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct.
575, 21 L.Ed.2d 607 (1969); Dicke v. Florida, 398 U.S. 30, 90
S.Ct. 1564, 26 L.Ed.2d 26 (id7a) and-United States v. Marion,
404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.20d 468 (1971).
25
In balancing the factors, the length of delay is looked at
first. “The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other
factors that go into the balance." 407 U.S. at 530.
Thereafter the other factors are thrown onto the scales.
Depending on the reason for delay asserted, this factcr can
acquire different weights in the balance. A defendant's demand
for a speedy trial is “entitled to strong evidentiary weight."
Id., at 531. Prejudice to the person and to the defense is the
last factor, although it need not be affirmatively demonstrated
to tip the scales in favor of defendant. (See: Moore, supra)?’
It is clear that the Sixth Amendment is not concerned with
every type cf delay before trial. It does not protect a person
during a period “before a defendant is indicted, arrested or
otherwise officially accused." MacDonald, supra, 456 U.S. at 6;
see also Marion, supra, 404 U.S. at 313. If charges are
dropped and the case returned to investigative status, there is
no Sixth Amendment issue. MacDonald, supra.
Thus, the holdings of this Court dictate that when a
speedy trial claim is asserted, the trial court must first
determine whether the Sixth Amendment applies at all. If it
does not, none of the Barker factors need be examined, and the
concerns of the Due Process Clause of the Fifth Amendment are
considered. If the Sixth Amendment does apply to the delay,
then the trial court must determine tne length of delay. If
the delay is sufficiently long to be presumptively prejudicial,
then a full analysis of all factors ensues
27 in fact, the "Sixth Amendment right to a speedy trial is
* * * not primarily intended to prevent prejudice to the
defense caused by passage of time; that interest is protected
primarily by the Due Process Clause and by the statutes of
limitations." United States v. MacDonald, supra 456 U.S at 8.
The Government, in phrasing the Questions Presented as it does,
invites this Court to depart from the standardized approach of
Barker and return to the former anarchistic approach to the
Subject.
26
Either a defendant is or is not protected by the Sixth
Amendment. Either he or she is or is not “officially accused."
MacDonald, supra, 456 U.S. at 6. The Government must recognize
that Respondents, having spent the last ten years as defendants
in on-going proceedings designed to convict and incarcerate
them, have been and are “officially accused." Since the
Government also knows that the Barker scales balance in
Respondents' favor, it tries to skew them.
Since the length of delay is the triggering mechanism
under Barker, the Government attempts to improperly defuse that
factor, knowing that to artificially recalculate the length of
delay is to deprive a defendant cf the protection of the Sixth
Anendment, just as if he or she had not been “officially
accused."
The length of delay is the length of time that a defendant
has awaited trial while protected by the Sixth Amendment.
Whether that delay was justified, whether the defendant
acquiesced in the delay, and whether the defendant was hurt by
the delay are factors that help determine if the period of
delay has deprived a criminal defendant of Sixth Amendment
protection. Barker, supra.
Nowhere is there any authority for the proposition that a
court must first determine the reason for the delay (e.g., the
Government appeal, defendants' appeal and various subsidiary
factual issues) and tne prejudice suffered (e.g. considerations
of release restrictions, etc.)28 and then recalculate the
length of delay. Under such a strained and illogical approach,
would the analysis begin anew, with the length of delay defined
as a period less than one where a defendant is “officially
accused?" How then would the other factors be "balanced?"
28 Respondents do not accept the Government's erroneous
characterization of their release status during the
Government's appeals as “free of all restrictions on their
liberty." See discussion, infra.
27
The Government's suggested departure from the analytical
approach to Sixth Amendment claims established by this Court
becomes totally absurd when it contends that the length of
delay should be determined by which side is ultimately
successful on pre-trial appeals.?? Petition for Certiorari at
20-21.29 Such a per se test is not only without support in law
29the Government refers to Respondent's motions which were
reversed on appeal as “legally erroneous," and suggests that we
somehow had the power to “induce the district court to err."
Petition for Certiorari at 12. The contention seems to be that
the motions for dismissal were not well founded. Although the
appellate courts reversed the district court dismissals, none
found the claims without merit. If the Government's
mischaracterization of Respondents’ dismissal claims is to be
believed, then the six-plus years taken to “correct” such
"erroneous" claims becomes even more suspect.
30cited in "support" of this novel proposition is a
dissent by a non-panel member from denial of rehearing en banc
in United States v. Brown, 520 F.2d 1106 (0.C. Cir., I975).
That authority is hardly persuasive, as the majority found that
Brown was denied his right to a speedy trial, and calculated
time consumed on a successful Government appeal as part of the
period of delay (14 months). 520 F.2d at 1109.
United States v. Auerbach, 420 F.2d 921 (S5th-Cir.), reh'g
denied, 423 F.2d 676 (1969, cert. denied, 399 U.S. 905 (1970)
is a pre-Barker case which, despite its archaic standard, does
not support the Government's proposition. That court
"considered" (rather than balanced) factors in considering a
speedy trial claim. (Auerbach established “bridges” to cross,
rather than factors to be weighed. See: Murray v. Wainwright,
450 F.2d 465, 471 [Sth Cir., 1971]) It counted the appeal time
as part of the length of delay, considered that the delay was
not caused by any “arbitrary, capricious, vexatious,
oppressive, deliberate or negligent conduct on the part of the
Government," and concluded the cGefendants suffered no serious
prejudice from the delay. Having counted the appellate delay,
the Court then considered whether the defendants waived their
rights to a speedy trial. It considerec the repeated
applications of the detendants to the courts as an implicit
waiver of the speedy trial right. 420 F.2d at 924-925
United States v. Litton Systems, Inc., 722 F.2d 264 (5th
Cir., 1984), cert. denied, No. 83-1550 (May 14, 1984) does not
support the Government's contention either. In that case the
delays while the defendants were charged were counted. The
fact that Litton sought delay was its undoing.
The various state cases cited by the Government do not
help render its contention any less frivolous. State v. White,
118 Ariz. 47, 574 P.2d 840 (1977) involved questions of
"Arizona law only," and reasonably concluded that the state's
speedy trial act did not require pre-trial appeals to be
disposed of in sixty days. 574 P.2d at 849; State v. Sieckmann,
3 Or. App. 454, 474 P.2d 367 (1970) was a pre-Barker case which
did consider the appeal time as delay, but concluded that since
"the delay was neither vexatious, capricious, oppressive or
prejudicial to defendant, we find no merit in this assignment
23
er logic, it would overrule Barker's balancing apnroach, and
render every defendant who is a party to a pre-trial appeal
unprotected by the Sixth Amendment, regardless of the length of
delay, reasons for delay, demand for a speedv trial, or
prejudice suffered.>!
The questions presented by the Government have as their
foundation a complete refutation of the balancing test of
Barker v. Wingo, supre. There being tio need to overrule
Barker, this Court should not corsider the Government's
contentions.
//
J/
//
//
//
//
//
//
//
//
30(continued)of error." 474 P.2d at 370. The analysis in
that case was grounded in State v. Robinson, 3 Or. App 200, 473
P.2d 152 (1970) which exhibited the antique proposition that no
speedy trial claim can succeed unless the cause of delay is
"'improper and the defendant suffers actual prejudice. * * *
Nor * * * can he complain of delays resulting from such things
as court procedures.'" 473 P.2d at 158; People v. Jamerson,
198 Colo. 92, 596 P.2d 764 (1979) clearly counted the delay,
but did not weigh the appeal time against either side: "(T]he
delay * * *has ow stretched to over three years. {T]he reasons
for delay * * * mitigate this factor. * * * For more than a
year and a half, the case has been tied up in various appeals."
596 P.2d at 768; Scarbrough v. State, 76 Wis. 2d 87, 250 N.W.2d
354 (1977) is the only case that provides the Government's
argument with any support. Yet, that case is distinguishable
as the defendant refused to proceed to trial, and the delay was
only a matter of months. Moreover, that case recoynized that
"[wle cannot however, under Barker, fail to give weight to
delays in bringing criminal cases to trial caused by inadequate
judicial resources and mounting caseloads.
31lNo doubt the Government would like to see such a rule,
as it would allow criminal defendants protection of the speedy
trial clause only when they did not need it. (If a defendant
prevails on a pre-trial appeal, the case is either dismissed,
or evidence that the prosecution needs to go forward remains
suppressed. )
29
4. Tne Court of Appeals (and the District Court before it)
correctly decided the Questions fairly presented. There is no
conflict among the circuits.
4. Question One: Whether the Sixth Amendment's Speedy Trial
Clause protects a defendant who is an appellee in an on-going
pre-trial appeal filed by the Government as part of its effort
to try, convict and incarcerate him or her.
The Court of Appeals properly found that, during the
Government's appeal of the dismissal orders, defendants were
protected by the Speedy Trial Clause.
The Court rejected the Government's contention that
MacDonald, supra, required holding that whenever charges are
dismissed over the Government's objection, the defendant-
appellee is no longer “accused.” The ammunition for the
refutation of the Government's position is in MacDonald itself.
In MacDonald the Government moved to dismiss an indictment
pursuant to FRCrP 48(a). Thereafter Or. MacDonald was a free
man, until the result of further investigation was the decision
to bring forth a new indictment. Once the Government formally
dropped the charges, MacDonald was “in the same position as any
other subject of a criminal investigation." MacDonald, supra,
456 U.S. 8-9.
The Court correctly found that the circumstances facing
defendants in this case were tne antithesis of those that
confronted Mr. MacDonald. The Government removed the stigma of
formal accusation when it dropped the charges against
MacDonald. As the branch of Government that is charged with
enforcing the laws, the executive let it be known that it was
not presently prepared to prove that MacDonald had violated any
laws. The major evil protected against by the speedy trial
guarantee--formal accusation--was no longer a concern. (App.
9a)
//
4/
//
//
//
30
Not for one instant in the last decade has the Government
relented from its formal accusation of Respondents. As the
Court found:
The public accusation in this case clearly
maintained its force while the government
prosecuted appeals in order to reinstate
charges against the defendants. The appeals
unequivocally stated the government's
intention to continue the prosecution and
asserted its legal grounds for doing so.
(Ig., at 9a).
When the Government voluntarily dismissed the charges
against MacDonald, it was willing for him to be a free man.
When the Government suffered a dismissal in this case in 1976,
it requested the District Court to impose bail restrictions.>4
That request came weeks after Respondents were released from
custody over the st*orng o* ection of the Government, which
responded by the highly prejudicial designation of Respondents
as “high risk," a designation the Government has never moved to
rescind. (CR 63)
After the Rule 48(a) dismissal in MacDonald, he was no
longer named as a defendant in on-going litigation designed to
bring him to trial on criminal charges. Not so with
Respondents. MacDonald did not need counsel to argue before
any court that his case was properly dismissed. Not so for
Respondents.
Additionally, a recipient of a Rule 48(a) dismissal has
his or her criminal charges resolved at least temporarily, and
can count on the protection of any applicable statute of
limitations to put a time limit on the Government's ability to
change its mind and renew charges. Respondents have no such
32onviously, when the Government obtains a FRCrP 48(a)
dismissal, "the prosecution shall thereupon terminate," and
thus no release restriction can be imposed. In contrast, 18
U.S.C. §3731 and §3146 not only authorize tail for an appellee
of an involuntary dismissal, but also refer to the appellee as
a “defendant” and a “person charged with offense."
Likewise, when a 48(a) dismissal occurs, there is no case
pending, so the Government cannot issue subpoenas for a non-
existent proceeding. In this case, the Government moved both
the District and Circuit Courts to keep its trial subpoenas
alive pending appeal. (CR-R-274, CR-R-281, CR-R-289)
31
protection, both because the Government does not have to change
its mind about prosecuting them, and because the statute of
limitations does not apply to an on-going case.>-» 34
The Government must go back to the Grand Jury and make a
showing of facts pertaining to a defendant's alleged illegal
activities in order to renew a case dismissed on its own
motion. Here, it need only convince one court that another
court made a legal error.*> If the Government succeeds here,
it can get its old indictment back, whereas it must begin anew
after a voluntary dismissal.
Once the Government files its notice of appeal from a
dismissal with prejudice, the dismissal is, in effect, stayed.
Unlike the 48(a) dismissal, it can be reversed---and that
' Teversal and reinstatement is the exact object of the appeal.
App. 9a-10a, 126a-130a).
33 The Government's position that this case was terminated
with the 1976 dismissal order is in contrast to its contention
tnat the electronic surveillance motion has been pending for
seven years (during which time the Government was admittedly
dilatory). See: RT 3/10/83 at 3.
340ne of the logical underpinnings of MacDonald is the
policy consideration that the Government should not feel that
it has to keep charges pending against an individual when it
may not think it can prove them. It is better to reduce the
anxiety of the citizen by a voluntary dismissal until ana
unless the Government has its case all put together; and,
conversely, having no fear of a running clock, the Government
will be less likely to continue prosecuting weak cases, thus
clearing up some court congestion and shieiding its
investigations from the speedy trial clock. See:
United States v. Hillegas, 578 F.2d 453, 460 (2nd Cir., 1978);
United States v. Lara, 520 F.2d 460, 466 (0.C. Cir., 1975)
(Wilkey, concurring); United States v. Lovasco, 431 U.S. 783,
791-792 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States
v. Walker, 601 F.2d 1052 (9th Cir., 1979); Casenote: MacDonald,
IT4 St. Mary's Law Journal 113, 125 (1982).
Such considerations play no part where the Government
opposes dismissal, has completed its investigation, and wants
the whole world to know that it wants to try and to convict the
defendants. The stigma of formal accusation remains, and the
charges are still not finally resolved. See Casenote:
MacDonald, supra, at 123.
35when Judge Belloni dismissed the indictment he stated:
"Inasmuch as I have power to do so, this dismissal of the
indictment is with prejudice, unless the Ninth Circuit decides
otherwise and remands the case or some part of it for triai."
(RT 5/12/76, p. 8)
32
The Ninth Circuit in Loud Hawk gave effect to this Court's
holding in MacDonald. The cases cited by the Government do not
support its contrary contention.°® Klopfer v. North Carolina,
supra, involved a defendant who--like respondents and unlike
the recipient of a 48(a) dismissal--had no protection from a
statute of limitations. North Carolina's chief prosecutor was
not vigorously and publically pursuing his case against
Klopfer, and was certainly refraining from making public
statements suggesting that "if [he] had been [part of] a gang
of bank robbers, [he] would have been in jail a long time ago."
(RT 8/5/80 at 111) Klopfer, like MacDonald, had the freedom to
go wherever he wanted without restriction. Respondents,
regardless of the ultimate ruling on the dismissal issue,
alway. knew that they could be hauled back into Court and be
required to post bail while the case was on appeal.
United States v. Bishton, 463 F. 2d 887 (D.C. Cir., 1972)
provides support for the Loud Hawk panel's conclusion. In that
case a defendant's motion to dismiss was allowed, and a
Government appeal ensued. Nine months later the District Court
dismissal was affirmed. Three months thereafter the Government
reindicted. The Court referred to the three month interval
between affirmance of dismissal and reindictment as "the period
between the end of one prosecution and the beginning of another
* * * [during which] he ‘suffers no restraint on his liberty
and is not the subject of public accusation.'” 463 F.2d at 891.
The Court therefore held that the first prosecution was not at
an end until the Court of Appeals affirmed the District Court's
dismissal.
//
//
36 The Government's reliance on Arnold v. McCarthy, 566
F.2d 1377 (9th Cir., 1978) is totally misplaced. Arnold was
not "accused" during a dismissal because tne Government moved
for the dismissal. The same holds true for United States v.
Samples, 713 F.2d 298 (7th Cir., 1983). In neither case were
ere possibilities of restriction under a dismissed
indictment, and in both cases the Government had willingly put
itself in a position of having to obtain a new indictment in
order to proceed. .
33
It is not surprising, therefore, that this section of
Bishton is specifically referred to by the MacDonald Court.
456 U.S at 8, fn.7. After the dismissal was affirmed, there
could be no restrictions imposed on Bishton's freedom, and he
was no longer formally accused. As if he had been the
beneficiary of a Rule 48(a) dismissal, Biston was no longer a
party to any proceeding designed to bring him to trial ona
criminal charge. However, the prosecution was still active
before the affirmance of the dismissal. He was afforded the
protection of the Sixth Amendment during the Government's
appeal as he stood accused.
Petitioner seems to realize the weakness of its argument.
It proposes a factual distinction to claim that these
particular Respondents were not accused: the allegation that,
while severe restraints could have been placed on defendan.s,
they were not subject to "actual" restrictions. (App. 13-14).
Apparently in recognition that the Sixth Amendment protects not
only those subject to restraints (which Respondents were), but
all those officially accused, itrasserts that the "government's
appeals exposed respondents 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." (Id., at 16)
What kind of fiction is it that pretends that a decade
long uninterrupted and unrelenting Government effort to
incarcerate Respondents causes the same "public obloquy, stress
and anxiety" as “any public knowledoe of the government's
interest in or consideration of criminal charges against them?"
And even if the stresses can be compared, at least the statute
of limitations would provide a time limit for the stress of a
suspect. As the charges against Respondents have a five-year
statute of limitations, their stress is only a few months away
from entering triple-overtime.
//
//
//
34
During this nearly ten-year pre-trial period, Respondents
have never been totally free of restrictions. The Government
had opposed their release from jail in 1976. When they were
released the Government designated them “high risk." When the
case was dismissed because the Government refused to give them
their trial, bail restrictions were sought, in effect an
admission by the Government that the prosecution continued. It
now takes a contrary position, as suits its compulsive purpose,
The District Court knew that Respondents wanted to go to trial,
and would have to keep contact with counsel while the case was
on appeal. Respondents behaviour and readiness for trial
convinced the Court to deny the Government's request.
However, the fact is that oven the Government has
characterized the history of this case as “acrimonious" (CR-R-
74) (See also: App. 35a). Respondents have always been aware
that one false step and they would be dragged back to the
District Court arguing against a Government request for bail.
This is an advocacy of mindboggling public policy for the
Government to insist that the Sixth Amendment only affords
protection to those pre-trial appellees who break the law or
otherwise give cause for the imposition of tougher release
restriction during appeal.?” Its argument does not square with
37 the Government's argument, were it to prevail, would
create a most anomalous sitution. District Judges might impose
bail restrictions on people they would fully intend to release
so that the individual would be protected under the Sixth
Amendment in the the event that the Government's appeal of the
dismissal order took an inordinate amount of time.
Indeed, if the Government had not contumaciously refused
to proceed to trial in 1976 on the gun counts, there would have
been no dismissal of the dynamite counts. The proceedings in
District Court on those charges would have been stayed, and
this case would not have been in a dismissal posture. To find
no Sixth Amendment protection under these circumstances would
be to reward the Government for creating unnecessary delay.
It would be a most strained reading of Barker to punish
defendants who are given a release status Concomitant with
their strong desire to appear at a trial while rewarding a
Government that wrongfully refused to proceed to trial.
35
tre policies of the Bail Reform Act of 1984 in general (18
U.S.C. §3141-3151), or with section 3143, which holds that
in situations where the Government has taken an appeal from a
Cismissal, the defendant is to be treated as any other defen-
dant still awaiting trial.
The Court of Appeals correctly found that Respondents were
"subject to the imposition of . .. restraints at any time.
Their freedom was far more precarious than that of a person
merely subject to investigation but not indicted." (App. 9a)
//
//
//
//
36
8. Question Two: Whether a per se rule should be adopted
allowing pre-trial criminal appeals to consume a limitless
amount of time, thereby insuring that even clearly
inappropriate appellate delay cannot impact a defendant's right
*o a speedy trial.
The Government seeks to create a per se rule, holding that
no matter how long or unquestionably inappropriate appellate
delay may be, it is incapable of violating a criminal
defendent's right to a speedy trial. Again, the Government
asks this Court to forego the balancing test of Barker without
the support of either law or logic. Petition for Certiorari at
14-24. The Court of Appeals rejected the Government's
argument, noting:
The government next contends that, in any
event, the period consumed by the
government's own interlocutory appeals should
be excluded, because otherwise the
government's “absolute right" to appeal would
be impaired. The government grounds this
right in 18 U.S.C. §3731, which authorizes
appeals by the government from district court
orders dismissing indictments or granting
motions to suppress evidence.
Certainly the government is entitled to
protection of its statutory right of appeal.
[citation omitted] In our view, however, it
accords too little respect to the right of
speedy trial secured by the sixth amendment
to exclude entirely from consideration the
time spent on the government's interlocutory
appeals. If such appeals are not even
counted in the period of delay, then “speedy”
trials could be postponed for years or
decades, no matter how onerous the burdens
borne by the defendants in the meantime, and
the sixth amendment would not even be
implicated. We reject such a per se approach
to the problem of delay caused by
interlocutory appeals.
App. at 10a.
Putting the Government's argument into the Barker cortext,
the contention is this: appellate delay cannot be used to
trigger the balancing of the remaining Barker factors, even
when there is no question that the defendant is formally
accused (and thus is entitled to the protection of the Sixth
Amendment).
The Government's position, then, would be that if an
individual were incarcerated for twenty-five years, demanding a
speedy trial while an appellate court "considered" a Government
interlocutory appeal, and during that time he had lost his
37
family, all his witnesses had died, and the Government's
witnesses memories had evaporated®, he could not complain
because the interlocutory appeal time did not "count," and thus
Barker is not triggered.
The most obvious problem with this argument is that it
elevates the Government's appeal rights to a position superior
to that of a constitutional quarantee. As the Court stated in
United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43
L.Ed.2d 232 (1975): “Congress intended to remove all statutory
barriers to Governmental appeals and to allow appeals whenever
the Constitution would permit." [emphasis added] Rather than
recognize that the Courts are a branch of Government that owe 4
defenaant a speedy trial, Petitioner seeks to remove the
protection of the Sixth Amendment and have criminal defendants
assume all the burdens of Governmental delay.
This Court noted in Klopfer, supra at 386 US 223, that the
earliest codification of the speedy trial right is from the
Assize of Clarendon (1166). That document clearly put the
burden of speedy trials on both the executive and judicial
branches, and there is no reason to depart from that long-
standing acknowledgement.49
38 thus rendering the right of confruntation meaningless.
39the District Court, in rejecting this same Government
argument, noted that "[t]he federal government as a whole--
executive, judicial, and legislative--is governed by the
strictures of the Speedy Trial Clause. All three branches of
government have a duty to insure that rights of criminal
defendants to speedy trials are not abrogated. Dickey v.
Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 eu)
Térennan, J., concurring)." App at 133a-134a. See also:
United States v. Fox, 3 Mon. 512 (1880); Cain v. Smith, 686
F.2d 374 (5th Cir., 1983); People v. Johnson, 162 Cal. Rptr.
431, 606 P.2d 738 (1980) (In Bank); United States v. Blanca
Perez, 310 F. Supp 550 (S.0.N.Y., 1970); United States v.
Perr » 353 F. Supp 1235 (0.C. Cir., 1973); United States v.
Ko tree. 3 Haw. 383 (1909); Petition of Provoo, 1? F.R.D. 163
5
404. And when a robber or murderer or thief or receiver
of them has been arrested through the afcresaid oath, if the
justices are not about to come speedily enough into the country
where they have been taken, let the sheriffs send word to the
nearest justice by some well-informed person that they have
arrested such men, and the justices shall send back word to the
sheriffs informing them where they desire the men to be brought
before them; and let the sheriffs bring them before the
justices." 386 U.S. 223, fn. 9, citing 2 English Historical
Documents 408 (1953).
38
When the Government suggests that "the ‘deliberate pace'
of the criminal process is, witt good reason, especially
unhurried at the appellate stage," (Petition for Certiorari at
17) it ignores the requirement that the Courts provide a
defendant a speedy trial.4! rt is, of course, reasonable for
review of an issue on appeal to take longer than to decide the
same issue in a trial court. However, nowhere does the
Government suggest why the Barker balar.cing test is incapable
of weighing this obvious fact.
The mark is widely missec when the Government asserts that
"it would make little sense to require the appellate process
proceed with the speed required by the Sixth Amendment."
Petition for Certiorari at 18. Unlike the Speedy Trial Act,
there are no “speed limits" for pre-trial appeal under the
Sixth Amendment. The Constitutional provision only prohibits
speed so slow that, on balance, the “basic rule" is
violated. 42
The Loud Hawk court recognized that when either the Gov-
ernment or a defendant has a right to a pre-trial appeal, 4?
that right should be exercised with the expectation that
necessary and reasonable delays wili occur. If the appellate
courts act as expeditiously as they should, the resulting delay
will be justified and not result in a Sixth Amendment
violation. On the other hand, when unjustified delay results,
4lurtjhe rule we announce today, which comports with
constitutional priciples, places the primary burden on the
courts and the prosecutors to assure that cases are brought to
trial. Barker, supra, 407 U.S. at 529.
42as U.S. Attorney Charles Turner has observed, “Every
case has to meet both standards. You can never escape the
Constitution." THE OREGONIAN, “In Banks Case Wheels of Justice
Grinding Slowly," February 1, 1985.
45the Government cites Doescher v. Estelle, 454 F. Supp.
943 (N.D. Tex., 1978), United States v. Ewell, 383 U.S. 116, 86
S.Ct. 773, 15 L.€d.2d 627 (1966); United States v. Bizzard, 674
F.2d 1382, (llth Cir.), cert. denied, 459 U.S. 973 (1982),
United States v. Hill, 622 F.2d 900 (5th Cir., 1980),
Dandridge v. United States, 265 F.2d 349 (0.C. Cir., 1959),
Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20
39
it is possible and proper for the Barker balance to find a
constitutional deprivation.
One cannot expect a pre-trial defendant to wait forever
for an appeal to be concluded without having his or her right
to a speedy trial violated. This Court, in Barker, stated that
"a justified reason... should serve to justify appropriate
delay." 407 U.S. at 531 [emphasis added]. If we can concede
that, as a matter of law, a twenty-five year delay would be
inappropriate for an "expedited" pre-trial appeal, then we must
allow a trial court, as in Loud Hawk, to use his or her
discretion and determine whether a six year and three month
delay was or was not appropriate, based on the record and the
reasons set for by the Government to attempt to justify that
delay. Indeed, other Courts have done just that, and concluded
that appellate review did become unjustifiably long.
Atkins v. People of the State of Michigan, 644 F.2d 543 (6th
Cir., 1981), cert. denied, 452 U.S. 964; Chism v. Koehler, 392
F. Supp. 659 (W.D. Mich., 1975), aff'd, 527 F.2d 612 (6th
Cir., 1976), cert. denied, 425 U.S. 944, 96 S.Ct. 1868, 48
..Ed.2d 188 (1976). See also: United States v. Bailey, 399 F.
Supp. 526 (M.D. Fl., 1975); United States v. Perry, supra.
43(continued) L.Ed.2d 1047 (1968) and In re Williams, 393
N.E.2d 353 (Mass., 1979) for the propositions that:
1) Tnere is no Sixth Amendment right to a speedy appeal;
2) Time consumed on defendants’ appeals does not count
toward the length of delay for purposes of the Speedy Trial
Clause; and
3) These cases, when contrasted with Loud Hawk create a
"conflict over the proper treatment of time attributable to
defendants' appeals. . ." Petition for Certiorari at sy ahs
All these contentions are completely meritless. All the
cases cited are totally distinguishable by the fact that they
consider post-trial, post-conviction appeals. Ir those cases
defendants have had their trial, heen convicted, and no longer
are presumed innocent. If they were restricted in any way or
subject to public accusation, it is because they have had their
day in court and have had judgement entered. Respondents are
presumed innocent, have never been convicted, and have yet to
have their trial, speedy or otherwise.
40
The Government tries to create the impression that there
is a split among the Circuits regarding whether pre-trial
appellate time should "count." A brief examination of the
cases belies that contention.
In United States v. Jackson, 508 F.2d 1001 (7th Cir.,
1975) the District Court found a speedy trial violation, but
based that conclusion on “the length of delay between
indictments and disposition on the merits has been and will be
unreasonable." 508 F.2d at 1005 [emphasis added] Thus, the
Court found a speedy trial violation based in part on
consideration of delay which had yet to occur. Such an
analysis would in fact deny the Government its right to appeal,
and would be improper.
The court of appeals then considered the speecy trial
Claim as of the date of dismissal Id., at 1005. This is no
more nor less than what the Loud Hawk panel did. App. at lla,
fn. 4. Jackson does not stand for the proposition that any and
all delay attendant to a Government appeal is proper; rather,
it holds that that delay cannot be prospectively factored into
the balance.
United States v. Bishton, supra, is of questioned vitality
on this issue as it predates Barker as the Government concedes
(Petition for Certiorari at 21, fn. 17). Citing a draft A.B.A.
project, the Court stated that time spent on appeals “is not
qenerally included [in its Standards Relating to Speedy Trial]
for purposes of calculating the period of delay in
prosecution." 463 F.2d at 890. Yet, the Court recognized that
"Courts, of course, are not excluded from the obligation to
Give defendants a speedy trial,” and noted that "delay caused
by appeals by the Government [can] constitute deniel of a
defendant's right to speedy trial." Ibid.
It held that "[w]henever the Government's action at any
stage of the proceeding indicates bad faith, neglect, or a
purpose to secure delay itself or some other procedural
advantage, the resulting delay is not justified." Ibid. This
holding that an improper Government appeal can result in
41
unjustifed delay does not extend to its converse--nameiy, a
ruling that a good faith appeal can go on forever without
abridging the right to a speedy trial. Further, the
recognition that the delay attendant on an improper appeal can
impact the Sixth Amendment compels the conclusion that all
appellate delay must be counted. Barker looks to the length of
delay rather than the reason for delay &s a triggering
mechanism. “4
The remaining cases cited by the Government clearly
support the proposition that time on appeal is to be counted.
The Government's contention otherwise is without support, and
thus there is no conflict to be resolved. See United States
v. Herman, 576 F.2d 1139, 1145 (Sth Cir., 1978) ("Most of the
delay ... resulted from the government's .. appeal.");4°
United States v. Litton Systems, Inc., supra. ("There is
nothing speedy about a five year delay [which included time on
appeal]"); United States v. Sebastian, 428 F. Supp. 967, 975
(W.O.N.Y¥.), aff'd, 562 F.2d 211 (2nd Cir., 1977) ("A great bulk
44the Government admits that in D.C. Circuit cases decided
after Barker appellate delay has been counted. Petition for
Certiorari at 21-22, fn. 17, citing Perry, supra, Brown, supra
United States v. Sarvis, 523 F.2d 7 (0.C. Cir., 1975) and
United States v. Rosenbloom, 511 F.2d 777 (0.C. Cir., 1974).
4“SInterestingly, in Herman the Government tried to get the
Court to remove from the length of delay consideration the time
between Herman's arrest and his withdrawal of a quilty plea.
The Court's response is instructive:
The government urges us to charge the time
between arrest and Herman's withdrawal of his
Quilty plea to Herman. This procedure is
mandated for cases arising under the Speedy
Trial Act, 16 U.S.C. §3161(i). We are not
sure, however, that artificially shortening
the length of delay would be appropriate in
every case arising under the constitutional
Quarantee. . . The analysis mandated by
Barker v. Wingo allows us to examine the
reasons for the delay and to excuse any delay
that the defendant himself causes.
576 F.2d at 1145, fn. 4.
42
of the delay occurred... because of the Government's appeal
of this court's suppression ruling."); State v. Helenbolt, 334
N.W.2d 400, 405 (Minn., 1983) ("(Under] Barker v. Wingo * * *
the state's appeal and concomitant [eight month] delay were
justified." [emphasis added]); Atkins v. People of the
State of Michigan, 644 F.2d 543, 548 (6th Cir., 1981), cert.
denied, 452 U.S. 964 ("The length of time involved here--
fifteen months from arrest to decision by the state Court of
Appeals on the interlocutory order--unquestionably is
sufficient to trigger a speedy trial claim.");
Chism v. Koehler, 392 F. Supp. 659 (W.D. Mich., 1975), aff'd,
527 F.2d 612, 663 (6th Cir., 1976), cert. denied, 425 U.S. 944,
96 S.Ct. 1868, 48 L.EdG.2d 188 (1976) ("[Rlespondent admits that
the twenty-seven month deiay between arrest and trial [most o7
which was on defendant's interlocutory appeal] is sufficient to
raise the issue."); Day v. United States, 390 A.2d 957 (D.C.,
1978) ("{IJn calculating the length of delay the motions judge
erred in excluding 18 1/2 months of interlocutory appeal time
from the 32 1/2-month period between arrest and trial.") See
also: United States v. Cox, 475 F.2d 837, 841 (9th Cir., 1973)
and United States v. Osuna-Sanchez, 446 F.2d 566, 567 (9th
Cir., 1971), cert. denied, 404 U.S. i022, $2 S.Ct. 698, 30
L.Ed.2d 672 (1972).
43
C. Question Three: Whether every time a suppression order is
entered against the Government with respect to only one part of
a criminal case, the Government can contumaciously refuse to
proceed to trial on the uneffected counts after being denied a
stay ty both the trial and appellate benches, and suffer no
consequence under Barker v. Wingo for such recalcitrance.
As the previous section indicated, appellate time .s
countes in determining the length of the delay before trial
during which a defencant is protected by the Sixth Amendment.
To hold otherwise would be to allow a case to take forever
before proceeding to trial, and to rule that Courts do not have
any obligation to provide a speedy trial.46 Cf. Barker, supra,
407 U.S. at 529. Appellate delay, if justified, “should serve
to justify appropriate deley.” Barker, supra, 407 U.S. at 531
[emphasis added).
4615 fact, the Government's argument that to count delay
on appeal denies its rights under 18 U.S.C. §3731 has an
interesting parallel if applied to the trial courts. Problems
beyond the Government's control and other unexplained delay can
result in denying the Government its right to bring a person
charged with violating the law to trial. Certainly the right
to appeal is no stronoer than the right to try people indicted
by the grand jury. Yet, unexplained delay weighs against the
Government. See: Barker, supra, 407 US, at 531 (overcrowcec
dockets); united States v. irien, 600 F.26 248, 254 (10th
Cir., 1979), cert. denied 444 US S17? (ill judge and overcrowded
docket); United States v. Grismore, 564 F.2d $29, 932 (10th
Cir., 1977), cert. cenied 435 US 954 (difficulty in getting a
judge); United States v. Macino, 486 F.2d 750, 753 (7th Cir.,
1973) (unjustitied Gelay, assumed to be from negligence or
understaffed prosecutor's office); United States v. Jenkins,
701 F.2d 850, 857 (Sth Cir., 1983) (overcrowcec Ccockets and
difficulty in getting a judge); Strunk v. United States,
supra, 412 US 434, 436, 93 S.Ct. 2260, 37 L.tG-.20 56 (1973)
Tunintentional delays, overcrowded court cockets, oF
understaffeo prosecutor's office); United States v. Tercero,
640 F.20 190, 194 (9th Cir., 1980), cert. Genieo 449 US 1064
(stipulation between defense counsel anc prosecutor to set over
case pending another criminal prosecution);
United States v. Vispi, 545 F.2¢ 328, 334 (2nc Cir., 1976)
Tjudge'’s inaction); Atkins v. People of tne State of michigan,
ra, at 548 (11 month interlocutory appeal); Unitec stares Vv.
=
SX supra, 399 F. Supp. 526, 530, (M.0.F1., 1975) (Lack of
a <
Judges); United States v. Bowman, 493 F.2d 594, 597 (2nc Cir.,
1974) (2nd Carcult Rules violated--understaffed prosecutor's
office); Cain v. Smith, supra, 666 F.2d 374 (Sth Cir., 1982)
at 382 (unexplained cGelay; delay resulting from jury's
observation of defendant who was shackled or wearing jail
garb); United States v. Carini, 562 F.26 146, 149 (2na Cir.,
1977) (judicial illness, summer recess, unexplained inaction,
overloadec docket, judicial cisqualification, jucicial
vacancies); Chism, F. Supp., supra. at 655 ("lamentadle”
twenty-seven month appeal); Oufield v. Perrin, 470 F. Supp.
687, 690 (O.N.H., 1979) (overcrowcec cockets, judicial
understaffing); Jones v. Morris, 590 F.2d 684, 686 (7tn Cir.
1979) cert. denied 440 US 965 (iack of reason);
United States v. Latimer, S11 F.2¢ 498, 501 (no reason shown
Overcrowded dockets); united States v. Sarvis, £23 *.2¢6 1177,
£4
The Government takes its meritless argument one step
further in footnote 16 of its Petition for Certiorari (at p.
19). It incredibly seeks to exclude from the length of delay
the time necessary to appeal the dismissal entered because the
Government's unnecessary delay in proceeding to trial in
1976.47
Judge Belloni had suppressed evidence thet was material to
only part of the Government's case. The Government had no
right to appeal the suppression as to the uneffected counts.
Respondents wanted to go to trial. The District Court refused
grant a continuance. The Court of Appeals refused to issue
a stay. Every court that has ever had occasion to review this
case has held that the Government was responsible for
“€(continued) 1182 (D.C. Cir., 1975) (appellate delay);
United States v. Calloway, 505 F.2d 311, 316 (D.C. Cir., 1974)
(delay in filing report of mental examination, “deliberate pace
of system."); Hanrahan v. United States, 348 F.2d 363, 368 n/n.
16 (0.C. Cir., I965), cert. denied 369 US 845 (ineffective
court adminstration); United States v. Lane, 561 F.2d 1075,
tome - Cir., 1977) (unavailability of replacement for ill
udge).
It should further be noted that a series of reasonable
delays can accumulate to become one unreasonable delay. Chism,
F. Supp. supra, at 567.
47 the only favorable thing that the Government can say
ebout its violation of the Orders of two Courts in refusing to
proceed to triai is that that cecision was made "in good
faith.” Without conceding that point for an instant, one can
only view with incredulity the argument that delays not
resulting from bad faith actions of the Government are not
cognizable under tne Sixth Amendment. The citation to United
States ex rel. Mitchel] v. Fairman, 750 F.2d 806 (7th Cir.,
1964) offers no support for this adsurd assertion. (Therein the
Court, of course, counted the appellate time, but found that it
was explained. 750 F.20 at 809.) Nor does the citation to
United States v. Saintil, 705 F.2a 415 (lltn Cir., 1983),
wherein celay was counted and weighed against the Government.
Furthermore, the assertion that the “firearms counts had
not been severed from the dynamite counts--[and therefore] the
government would nave hac to go to trial on all counts, thereby
losing its rignt to appeal the suppression order” is patently
ridiculous. (Petition for Certiorari o. 19, fn. 16) The
suppression order nad nothing to do with the gun counts. Those
counts were unsevered because the Government was unwilling to
nave them severed.
45
unnecessary delay. To exempt such clearly unjustifiable delay
from Sixth Amendment scrutiny, as the Government proposes,
would create a frightening rule. The Government would be able
to contumaciously ignore Court Orders designed to avoid
unnecessary delay and unwarranted appellate proceedings, and
48
suffer no consequence under Barker v. Wingo.
This Court need not grant Certiorari in order to reject
the Government's frivolous and unsupportable proposition.
486i ike an unrepentast lawbreaker the Government feels
elated by its thus far successful effort to avoid the
consequences of its actions. It irresponsibly refused to obey
Orders of two Courts, was found to nave created wholly
unnecessary delay, had the dismissal of the gun counts
sustained, and yet refers to its appeal as "successful.
In fact, one can presume that at least some of the four year
delay in the first appeal was associated with examination of
the Government's improper refusal to proceed to trial nine
years ago. It would not be too farfetched to assert that, with
a trial on the firearms counts completed in May 1976 and 4
simpler appeal, this case would never have reached such an aged
state. In fact, had the Government proceeded on the firearms
counts in 1976, there would not have been any need to resubmit
them to the grand jury, no vindictive-appearing indictment
would have been returned in 1980, and the second appeal would
not have existed.
46
D. Question Four: Whether the appellate court erred in
upholding the the District Court's use of discretion in
sustaining a speedy trial violation by applying the analysis of
Barker v. Wingo to the unique facts of this decade clad case.
Tne Court of Appeals did not err in upholding the District
Court's conclusion that Respondents' rights to a speedy trial
had been violated.
i) LENGTH OF DELAY,
As the discussion of the Questions Presented, Supra,
Gemonstrated, the Circuit Court was correct in calculating "the
delay in this case as ninety months, the period from the arrest
of defendants until their indictment was last dismissed on May
20, 1983." App. at lla. Clearly this delay was sufficient to
"trigoer" further inquiry.
ii) REASONS FOR THE DELAY.
Barker, supra, defines how to weigh the reasons for any
particular delay in the balance of factors:
[Ol]ifferent weights should be assigned to
cifferent reasons. A deliberate attempt to
delay the trial in order to hamper the
defense should be weighed heavily against the
government. A more neutral reason such as
negligence or overcrowded courts should be
weighed less heavily but nevertheless should
be considered since the ultimate
responsibilty for such circumstances must
rest with the government rather than with the
defendant. Finally, a valid reason, such as
a missing witness, should serve to justify
appropriate delay.
407 U.S. at 531. The Circuit Court weighed the reasons for
delay as follows: -
Fe ‘he first pre-trial appeal it separated the dynamite
and non-uynamite counts. It concluded that the delay attendant
on appeal of the latter was "wholly unnecessary" and weighed
"neavily" against the Government. As discussed above, there
was no other conclusion at which the Court could have
arrived. 49
4“9Note again that the Government suggests that all
appellate time be excluded as it “prevailed on those appeals."
Since when does a decision upholding a cismissal because of
unwarranted and unnecessary Government delay constitute
exoneration?
47
As to the dynamite counts, the Court properly found that
"(t]he Government's action in taking the appeal was therefore
Clearly justified, and wou'd of itself support a reasonable
delay. The problem is that this appeal took forty-six months."
App. at 13a. The Court's analysis followed Sarker to a tee.
It first determined that the reason for the delay was
justifiable (a proper Government appeal). It then "related
[tne] length of delay [to] the reason... assign[ed]) to
justify the delay." It did so knowing that “a valid reason .
should serve to justify appropriate delay.” Barker, supra, 407
U.S. at 531.
Although a shorter perioo of time might have been found
justifiable for a pre-trial, “expedited” appeal, clearly a
nearly four year delay was not “appropriate,” or justified.
Such delay falls into the “neutral” Barker pigeonhole, and thus
weighs against the Government, but less heavily. App. at 13a.
The celay attendant to the second appeal was considered
justified by the Court of Appeals. It further found that six
months of delay were the fault of Respondents, and thus
balanced the reason for the delay against a period of twenty-
three instead of against twenty-nine months. As it considered a
twenty-three month period for a pre-trial interlocutory appeal
to be not “undue,” it found that the reason for the delay
justified the length of delay, and therefore did not weigh this
factor in the belance.°9 App. at 15a.
>On) though Respondents find no fault with the analytical
epproach of the Circuit Court to the delay of the second pre-
trial appeal, we do have serious problems with its conclusions.
In reviewing the District Court's opinion, the Circuit
Court should have employed a standard of "clearly erroneous" to
any pure or mixed findings of fact (United States v. Hart, 546
F.20 798, 801-802 (9th Cir., 1976). Further, as each speedy
trial case is ad hoc and requires the District judge to
exercise discretion, it should have employed an “abuse of
discretion" standard. (United States v. Mills, 641 F.2d 785,
767 (9th Cir., 1981), cert. denied, 454 U.S. 902, 102 S.Ct.
409; United States v. Simmons, 536 F.2d 827, 832 (9th Cir.,
1976), cert. denied, 429 U.S. 824) Instead it substituted its
own judgement.
48
The Government criticizes the Court, suggesting without
any authority, that “the time spent on respondents' own
unsuccessful interlocutory appeal must, on any reasonable
analysis, weigh heavily against them." Petition for Certiorari
at 25. At the time defendants filed their appeal, they not
only had a right to appeal, but made an excellent claim under
the then existing case law. App. 32a fn. 4. Cf. United
States v. Hollywood Motor Car Co., 458 U.S. 263, 102 S. Ct.
3081, 73 L.Ed.20d 754 (1982), United States v. Goodwin, 102 S.
Ct. 2485 (1982). Just as the Government's right to appeal
deserves protection by affording it an appropriate amount of
time to be asserted, e defendant's rights are entitled to
pro.ection too.
Either side to a law suit must be permitted to make a good
faith assertion of its rights (whether it ultimately prevails
or not). A certain amount of delay must be expected and
tolerated by the iitigants when one side or the other properly
exercises any of its rights which necessarily cGelay the
proceedings. It is when that expected and tolerable quantum of
delay becomes unjustified and inappropriate that it acquires
weight under the “reason for delay" factor.°>}
S0(continued) Respondents obviously believe that the District
Court was correct in concluding that the period of delay was
twenty-nine months, and that the reason for the delay (proper
pre-trial appellate procedures employed by each side) did not
serve to justify that length of delay, especially as this
appeal was also “expedited.” Judge Redcen properly weighec
that twenty month period against the Government as a “neutral”
reason. App. at l3la-132a.
However, Respondents' disagreement with the Circuit Court
here is imconsequential, as the great weight of the
Government's improper appeal, combined with the totally
unjustifiable length of the first pre-trial proceeding,
compelled the Court to the correct result. It found that the
"reason for delay” factor, even absent the weighing of what
Respondents believe was further unjustified celay,
“contribute[s]... to our conclusion that defendants’ speedy
trial rights have been violated in this case."
Sleefore the first appeal began nearly nine years e290, the
Government asserted that an appropriate delay for an
"expedited" pre-trial appellate proceeding would be one of a
“matter of months." (Cr-140)
49
iii) ASSERTION OF THE RIGHT.
More than by anything else, the antique nature of this law
suit is revealed by the blatant lie put forth by the Government
that Respondents cid not want a speedy trial. This case is so
old that a revisionist history is already being written.
To “support” tris incredible claim, the Government faults
defendants for asking for a few short trial court continuances.
Petition for Certiorari at pps. 26-27. As indicated above, the
continuances were sought either to allow all defendants to be
tried gether, or to allow time for defense investigative
efforts, stymied by the Government's outrageous instruction to
witnesses to refrain from talking with the defense.
The Government further suggests, Petition for Certiorari
at pps. 26-27, that vigorous defense representation in an
attempt to secure relief for gross governmental misconduct and
other transgressions of defendents' statutory and
constitutional rights is inconsistent with an assertion of a
right to a speedy trial. Where is there authority or reason to
suggest that in order to demand a speedy trial well founded
motions and petitions should not be filed? What is the
inconsistency between wanting a dismissal of the charges (or
suppression of evidence)>2 when there are grounds for such
relief, and a speedy trial too? The only reason for such
hysterical and unreasonable arguments from the Government is
its recognition of both the powerful weight given to a speedy
trial demand in the Barker balance, and the strength with which
Respondents have asserted that demand.
The Government's citations to Barker and Litton are
Girectly on point. Both cases affirmatively demonstrated the
great weight the Barker scales provide to a defendant's desire
52The Government asserts that the decision of Respondents
Dennis Banks, Loud Hawk, and Redner to seek Certiorari from the
second appeal reflects a desire to avoid trial. Rather, it
evidenced a desire to avoid severance of defendants and
relinquishment of claims under authority of this Court's
Gecisions against piecemeal litigation.
50
—_- oe
to have a speedy triel. Barker waited five years for his
trial, but his right to a speedy trial was not abridged because
he did not want one. 407 U.S. at 534-536. Litton “sought
delay... from the inception of this litigation,” and thus
could net complain about a five year delay. 722 F.2d at 271.
Knowing that all other factors weigh against it, (App. at 18a)
the Government is engaging in a desperate attempt to save its
case with an unmitigated fiction.
Fortunately, this crass attempt to blame the victim cannot
succeed, as the defendants’ desire to have a speedy trial and
the prosecution's dilatory tactics are well documented. No
court has ever charged defendants with seeking delay; every
court that has ever had the opportunity to rule on the
Government's irresponsible refusal to proceed to trial (despite
denial of a request for stay by both trial and appellate
benches) has laid reponsibility for unnecessary delay at the
U.S. Attorney's doorstep. Even Judge Wallace in dissent agreed
with the majority and with Judge Redden that Respondents wanted
a speedy trial. (App. 24a)
Three of the four Respondents were incarcerated from
November, 1975 until February, 1976. Their demands for
release, bitterly opposec by the Government, were alternative
means of asserting a speedy trial demand. Cain v. Smith, 686
F.2d 374, 384 (Sth Cir., 1982); United States v. Calloway, 505
F.2d 311, 316 (0.C. Cir., 1974). Once out of custody (as "nigh
risk" designees) defendants were busy organizing their defense
in anticipation of trial. (See attachments to CR 138) Less
than three weeks before the trial date they petitioned tne
Court to hold the trial “in a facility sufficiently large to
accomodate a reasonable number of members of the general
public” as tnis case had attracted national attention and
Indian people were coming to attend from all ovey the country.
CR 132. As far as the defendants were concerned, the
Government's case against them was riddled with miscorduct anc
racism, and the Government knew that defendants were eager *0
put those charges before a jury. It truly seems like a
51
lifetime ago, but a present-day elementary school principal
named Russ Redner, in seeking release before trial, stated:
I'd like to say that we intend to stay
here. We do intend to stay here and deal
withb_this matter; we have intended to do so
from tne day -- from the very heginning. We
have very little voice in America. Our
people make up less than one percent uc the
total population. So therefore, we have to
utilize every opportunity to speak for our
people. we face prison as a consequence, but
we are still willing and bound by ancestor's
blood to carry on and to see this matter
through to the end. we're not going to run
away from ourselves. We're going to stay and
see who is indeed on trial here.
I want to get out on the street. I want my
counsel to prove my case that I'm innocent
and that the guilt lies with the Government.
RT 12/29/75 pps. 44-45; RT 1/23/76 pps. 51-52.
When the Government requested delay, Respondents opposed
it. When the appellate bench was considering the request for a
stay, a vigorous objection was filed (Respondents' Appendix at
la). Nine years after the fact the Government asserts that
Respondents did not want a speedy trial, yet only eight days
before the May 12, 1976 trial date the Government admitted that
“the defendants [and] their counsel . . . desire the case to be
tried at the earliest practicable opportunity.” CR 136 (FCR
810). On the date set for trial Jucge Belloni found that the
Gefendants were ready. RT 5/12/76. After every remand
defendants reasserted their claim. (App. 135a)
Clearly, there was no error by either District or Circuit
Court giving Respondents’ demands for a speedy trial “strong
evidentiary weight." Ibid., quoting Barker, supra, 407 U.S. at
531-532.
iv) PREJUDICE.
There are two types of prejudice that are relevant to a
speedy trial question: “prejudice to the person and prejudice
to the defense." Oufield v. Perrin, 470 F.Supp. 687, 691
(D.N.H., 1979).
Regarding the former, Respondents, all “high risk”
cesignees, have had these unresolved charges hanging above
their respective heads like 4 sword of Damocles for nearly 4
52
decade. The District and Circuit courts both found that
Respondents have suffered personal prejudice from the
outrageous length of delay. (App. 16a, 136a). As Judge Redden
observed: “The Supreme Court has consistently noted the
substantial nature of this type of prejudice. MacDonald,
supra, 456 U.S. at 8-9, 102 S.Ct at 1502; Barker, supra, 407
U.S. at 533, 92 S.Ct. at 2193; United States v. Marion, 404
U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)."93 (App.
136a)
Although a showing of prejudice to the defense is not an
essential element of a successful Sixth Amendment claim,?4
Respondents have made such a showing. Based on its knowledge
of the record of this case and the affidavits submitted on
behalf of Respondents, (CR-R-241, CR-R-242, CR-R-246, CR-R-247)
Judge Redden found that material defense witnesses had died,
and other material witnesses had lost all recollection of the
53 See also: Dickey, suprsé, 398 U.S. at 54 (J. Brennan,
concurring); Dillingham v. United States, 423 U.S. 64, 65, 96
S.Ct. 303, 46 L.Ed.20 205 (1975); Unitec States v. Haulman, 288
F. Supp. 755, 780 (€.0. Mich., 1968); Klopfer, supra, 366 U.S.
at 221-222; Macino, supra, 486 F.20 at 753; Speedy Trial, 20
Stanford Law Review 476 (1968); Note: Speedy cHtatnel Trial, 27
Stanford Law Review 525, 533 (1975); Blanca Perez, supra, 310
F. Supp. at 552-553; Hoskins v. Wainwright, 485 F.20 1186,
1186-1189 fn. 3; (5th Cir., 1973); United States w. Zabacy,
546 F. Supp. 35, 40 (M.0. Pa.; 1982). In fact, tnis is the
type of prejudice that a court can take judicial notice of.
United States v. Bailey, 399 F. Supp. 526, 531 (M.D. Fl., 1975)
4
5 See Moore v. Arizona, supra, 414 U.S. at 26; MacDonald,
es 456 U.S. at 8. U.S. 25, 94 S.Ct. 188, 38 L.Ed.20 3
53
—_
events of November, 1975.55» 56 Tne Government had ample
opportunity in the District Court to contest Respondents'
showing of “obvious” prejudice to the defense. If it truly
believed that Respondents were caught “red-handed” (sic:) and
could therefore suffer no prejudice, it had every opportunity
to present its theory to the District Court; it chose not to
do. The bold, self-serving, and unsupported assertions made
before this Court are hardly persuasive. This case is almost a
decade old--twice the statute of limitations. Prejudice to the
defense, which need not be affirmatively demonstrated (but was)
can even be presumed. See United States v. Vispi, 545 F.2d
328, 334 fn. 7 (2nd Cir., 1976). See also Peccie v. Johnson,
162 Cal. Rptr. 431, 606 P.2d 738, 749 (1980) (In Bank) and
Hodoes v. United States, 408 F.2d 543, 550 (8th Cir., 1969).
>>These witnesses were ones whose identities were hidden
by the Government. Respondents learned of their existence by
obtaining police reports from other lawyers on other cases.
The reports indicated that these two people had seen the
venicles described by the FBI teletype on November 14, 1975 and
been shown “throw downs" days after Respondents’ arrest. S8oth
had opportunities to see occupants of the vehicles. None of
the Respondents was identified, although two other people were,
according to the reports of the officers. These witnesses no
longer have any recollection. (App 137a)
6p sampling of the other prejudice in the record that the
Courts did not mention in their opinion includes: 1)
Respondents have been prejudiced by a change in public
attitudes. See: CR-R-214; United States v. New Buffalo, 600
F.2d 368, 379 (2nd Cir., 1979); 2) Tape records of calls by
material witnesses have deen destroyed. See: CR-R-242, Dickey,
suora, 398 U.S. at 32, Murrav, supre, 450 F.2d at 472; )
KaMook Banks, who successfuliy completed probation on an
unrelated charge can no longer have the possibility of
concurrent sentences if convicted. Dufielc, supra, 470 F. Supp.
at 691; United States v. Graham, 536 F.2d 261, 265 (9th Cir.,
1976); Prince v. State of Alabama, 506 F.2d 693, 707 (Sth Cir.,
1975) See aiso Uniteco States v. Salzmann, 417 F. Supp. 1139,
1144, 1164, 1166, 1169 (£.0.N.¥., 1976); Smith v. Hooey, Supra,
393 U.S. at 378; 4) KaMcok Banks and Kenneth Loud awk would
have been elicible for Youthful Offencer treatment and no
longer are. United.States v. Black, 416 F. Supp. 59, 62 (M.D.
F1l., 1976); Salzmann, suora, 417 F. Supp at 1173.
In fact, when 6 defendant's claim "has prima facie merit, the
54
Government must make a showing which ‘convincingly outweighs’ a
defendant's assertion of prejudice." Parks v. United States,
451 A.2d 591, 602 (1982).57, 58
THE BALANCE
Since each of the Barker factors weighed in support of
Respondents' speedy trial assertion, the Circuit Court was
correct in sustaining Judge Redden's ORDER finding a Sixth
Amenoment deprivation.
57 See also Day. supra, 390 A. 20 at 970, 1978); United
&
States v. Avalos, -20 1100, 1116 (Sth Cir., 1976), cert.
Genied, 430 U.S. 970; United States v. Barket, 530 F.20 189,
tn Cir., 1976); Dickev, supra, 598 U.S. at 54-55 (J.
Brennan, concurring); United States v. Quinn, 540 F.2d 357, 361
(6th Cir., 1976); Blanca Perez, supra, 410 F. Supp at 551;
Carini, supra, 562 F.2d at 151; Chism, suors, 392 F. Supp. at
66/7; Murray, <-tit: 450 F.2d at 471; New Buffalo, supra, 600
F.20 at ; Prince, supra, 506 F.20 est 707.
981t should be noted that if the indictment in this case
is reinstated for whatever reason, Respondents can demonstrate
additional prejucice from delay since 1983, and would provide
evidence of said prejudice to the District Court in support of
anew Motion to Dismiss for Pre-Trial Delay.
55
5. Should the Court want to consider a case that raises issues
of pre-trial appellate delay, Loud Hawk is an inappropriate
selection.
This case involves an exceptionally long period of delay,
Government creation of unnecessary delay, unexplained delay,
inappropriate delay, Government appeals, defense appeals (based
on jurisdictional holdings vacated while on appeal), three
District Court dismissals, one en banc appellate decision, two
panel decisions (one reported and one unreported), Governmental
misconduct, and political overtones. Indeed, a case with a
more muddied record could not be found. It would provide poor
material from which to weave any principle which was not
capable of spontaneous unraveling.
6. There exists an independant ground upon which the District
Court dismissed the indictment which was not addressed by the
appellete court or by the Questions Presented by the
Government's Petition for Certiorari.
As the Government noted at page 27, footnote 21 of its
Petition for Certiorari, Judge Redden also found a due frocess
violation from the delay. As noted above, the Government dic
not contest Respondent's factual assertions of prejudice before
the District Court. It admits that prejudice exists, ignores
the fact that its improper refusal to proceed to trial in 1976
gave birth to all subsequent delay, and suggests without any
authority that it would be “appropriate for this Court to rule
that there was no due process violation.” Id., at 28.
Tne Government is correct in asserting tnat Judge Redden's
Gue process dismissal must be considered before the case can be
returned yet again to the District Court, and indulging in
fantasy by suggesting that the voluminous record of this legal
Ginosaur does not contain evidence of sufficient prejudice to
support Judge Redden's ruling.
It would be absurd for this Court to take upon itself the
task of combing through the voluminous record of tnis case,
without the guidance of any prior appellate review, to
Getermine what is, in essence, an issue of fact rather than
law.
56
CONCLUSION
For these reasons, the petition for a writ of certiorari
should be denied.
Respectfully submitted,
KENNETH SAUL STERN
Rose & Stern
Suite 101, Kellogg Buiiding
1935 S.E. Washington
Milwaukie, Oregon 97222
(503) 654-7792
Counsel for Respondent
DENNIS JAMES BANKS
(on behalf of all Respondents)
Tne assistance of Kathryn Jonnston, Esaq., Michael E. Rose,
Esq., Lisa Martens, Katie Wolk-Stanley, and Virginia Raymond in
tne production of this BRIEF IN OPPOSITION is greatly
apcreciated.
57 -
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alt ltt
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EDITOR'S NOTE
* a WERE POOR
mem Os A TIME OF FILMLNG.
IF AND WHEN A BETTER COPY CAN BE
OBTAINED, A NEW FICHE WILL BE
ISSUED.
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| . OER
IN THO UNITED STATES Court or APPA a
POR THRE Ninvy CIRCUIT
UNITED STATES of ACA
Appellant,
)
)
)
)
ee. y NO. 76-1906
)
DEFENDANTS '* OPPOSIT 103; TO THR
KENNETH MOSES Loup HAWK, ET AL.) GOVERNMENY's ROWS T POR A sTi,
Appelles, )
Defendants Fespectfully urge this Court to deny the
“overnment's reguest for a Stay of the Proceedings in the insta:
Case for the below -stated reasons:
1) The Honorable Robert c, Belloni, Chief Judge of the
District Court of Oregon, who has lived with this case since
November, 1975 and is familiar with the 9°vernment's Conduct
therein, and is therefore, in the best POSition to Cvaluate
Proceedings,
2) the affidavit of Sidney Lezak, United States Attorney
taken for the Purpose of delay." Yet, in Sren court on April
ment will not be ready to 9° to trial on May 12, 1976 @S earlier
agreed, and mr. Lezak made Said Statement in the face of Judge
Belloni's admonition that such a Posture would result in the
Gismissa} Of this cause,
. «L086
la
_—- — we ee oe
ens e& = oe
a as ONL 8 Sw
7
3)The government is highly unlikely to succeed in its:
appeal of the District Court's Order Suppressing Evidence, ins
Lr
of its contentions to the contrury, given the presumption of
validity that must be accorded such suppression order, ana wiv-:
the weakness cf the authority upon which the government intends
to rely in support of its position. (See attached Memorandum
of Points and Authorities.)
4) The Defendants woule be highly prejudiced by any stay
of the proceedings in that such stay would generally abridge
their Sixth Amendment riqht to a speedy trial, and would cause
specific hardship for the following reasons:
of being designated by the Government as high-risk individuals
pursuant to 18 U.S.C. 3164, a designation which does violence
to the presumption of innocence. Furthermore, such designation
applied to them by the Government placed an enormous [financial
and emoticnal burden upon all the Defendants and their counsel
reguiring the preparation of a defense in a highly complex case
within ninety days. Defendants have successfully met said
burden, including completion of all motions on an extraordinarily
tight briefing schedule caused by the governuent's designation
of high risk, and Defendants stand ready for trial on a date
mutually agreed upon two months ago by Judge Belloni, defense
counsel and counsel for the Government.
‘ b) To comply with the U.S. Attorney's NMesignation of
High Risk, all counsel, including two out-of-state counsel,
2
1087
2a
a) Defendants have Jabored under the enormous prejudice
a ee ee
mahewweenwen &eeee freee &S &- =
ank WNHe CO WO BON DY F&F WwW NK OC
bd a
with numerous tiel commitments, were forced to re-arrange thoir
schedules, to Lhe inconvenience of several stute courts.
c) Pursuant to an order of the Honorable Prank Thets,
the trial of Ka-tiowk Ranks, on
U.S. District Judge in kansas,
of the co-defendants in the instant matter, has been truiled
pending completion of this case. Bail in thet matter was Set
at $20,000 cash, which bail
to the Defendant, ané a stay of the instant case would unnecess-
arily tie up those bai] funds which the Defendant needs to
support herself and her two infant children.
da) Finally, Defendant Dennis Banks fac
nad in California, on a demand for
es extradition
proceedings in both Oregon a
his return to South Dakota. Defendant Banks has strenuously
resisted extradition to that jurisdiction because of direct
threats against his life by the highest law
of South Dakota. It has been made clear to counse] for Defend-
ant Banks, that both Governors will weigh the final outcome
of the instant matter heavily in their deliberations of a case
which presents such scrious issues. To further delay the trial
in which Defendant Banks will be exeneratcd jeopardizes a
favorable resolution of these important state matters.
Therefore, Defendants, for all the above and foregoing
reasons, respectfully urge this Court to deny the Government's
Request for a Stay.
‘
’
DATED: April 26, 1976
DENNIS ROBERTS
3a
was posted with considerable herdsnty
enforcement officials
ae emo
On Behalf of All of the Defendans
. 1055
to
&
25
26
Stace GF CALIPOR JA
Gee ca GF? Aba ‘iiod
YENHIS ROSSNTS, after being duly swern, depose: and
That I am the attorney of record for Jefeniant Gots
vA‘S3 BANKS, one of the coedefendants in the instant matter,
and that I am licensed to practice tefore the California Su;-:
Coust and this Honerabie Court.
That the co-defendants in this case filed formal disco-e.
motions in this satter several months azo. The Assis-ant
United States Attorney with prime responsibility for this maz:
several days aso advised one of counsel for a co-defendant
r
tnat all discowerable material in the case had been turned over
to tne defendants, that no further discoverable material exists
and reaffirmed tne committrent of the Office of the United
States Attorney that as said material became available it would
On april 14, 1976 your affiant had-a meeting with said
Assistant United $tates Attorney who turned over discovery
material and made the same representations.
Gn april 22, 1976 your affiant received a packet of
materials from defense ccuns2l in a federal criminal matter
presently under prosecution in South Dakota involving the
deatn of two F.3.]. agents in Oglala, South Dakota. One of
the cefendants in that case, LEONARD PELTIER, is a co-defendant
in the instant matter. Said packet contained some of the
discovery turned over to defense counsel in tiie Oglala case
ate
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by the United States Attorney in that case. Amnonz the ite-;
discovery provided therein were items extraordinerily extuli.
of the instant defendants, includins, inter aliu, the identi:
tion of fingerprints of rnersons other than the instant defend:
whose prints were found in the venicles containins tne alle->
contraband which is the sublect of the instant prosecutiso-.; =:
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evidence that handwritten material found in s
not »e favorably compared with nandwriting exemplars provi.’::
by the defendunts fro: wicm exemplars were obtained.
Suppression of the finrerprint evidence, in lisht of
the fact that vefendant VelnIS JAKES BaikeAS Was not present
when the vehicles were seized aid that the Government's entire
Case against him is built on the hypothetical that since his
prints were found in the vehicle he must have been the person
who drove said vehicle a few hundred fect away from the scene,
mandates a disnissal for gross governmental misconduct.
The evidence of finzerprints of persons other than defeniz:
being found in said vehicles was transmitted by the F.3B.I. Late?.
Fingerprint Section to Special Agent in Charge (SAC) Portland
_on January 21, 22 and 25, 1976. The exculpatory handwriting
material was transmitted from F.3.1., washington, D.C. to
SAC, Fortland on “larch 12 and 15, 1976. Wone of this materia)
was ever turnes over to the defendants by the Government hereir.
Said information is presently being prepared in motion form
to be presented to Judse Belloni forthwith.
val , ;
Sworn to and subscribed tefore me ~ i \-———- Ate Ve
this 26th day,of april, 1976. wewwlS RUSERTS
funda S Mest lel ramesiag Bk ey
NOTAR? FUSLL > Cee NO Cin =}
— wee oficG Ss UNDA S waes TI QC
afte ota yy MOTARY PrauE est eae s7h
* ite PRINTIT A, OPE o h
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mAHORAU OF POINTS AD SUTHORI TIES
The Covermoent, according to its Notice of Appeal, ios
froma the 7th Circuit, U.S. v-
to rely on three cases, one
445 F2e 37° (7th Cir. 971) and to from this Circuil, Unit!
States v. Trener. 473 ¥Fr2da GEO (“th Cir. 1973) and United Fic’ 3
v. Sewar 468 rsd 236 (9th Cir. 1972), all of which cases predaté
United States Vv. ligiden, 508 F2da 29%
this Court's opinion in
(9th Cir. 1974), upon which the District Court relied in its
order Suppressing Evidence of March 30, 1976.
All of the above-mentioned cases can be easily distin-
guished from the case at bar, which involves not only the
destruction of all the explosive evidence without retention
of even a sample of such evidence (See Order Suppressing Evidercé
p.6), but also, the totally unjustified destruction of the
plastic bags within which the explosives
according to the Government
prior to any attempt{to obtain fingerprints
cardboard boxes and
were contained, and
therefrom, although fingerprints were obtained from virtually
every surface of the vehicle and its contents in which said
explosives were alleyedly found. “The destruction of these
articles climinated the possibility that [the Defendants] could
have presented evidence rebutting this charge: i.e. they might
have been able to show that their fingerprints were not on the
dynamite containers.” (See order Suppressing Ev
referred to as Order, p- 4)- Furthermore, the destruction of
these containers, completely eliminated the possibility that
the Defendants could have adduced whose fingerprints might have
//
idence, hereinafte=
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‘be al i fi
en on Said containers. (See affidavit o¢ Dennis Roberts)
United States iideatanl alent
ates v. Trenaury, Sur, is tetally inartosite
on
rc 2 4 : t . u c | re .
e: . . s
. yY P
In United States v. Sew
’ cs Vv. vewar, sunra, tvac inadvertent loss
of evidence by a technician who hed no reason to realize that
the evidence should be preserved for trial, stands in sharp
contrast to the [indings of the District Court herein. as
officers and agents who were present at and who conducted the
destr i ynam)
uction of the dynamite and its containers were experienced
personnel. They must have known how sensitive this case would
becone Lc i j
come and how material this evidence was to the case." (See
Order, pp. 4 & 5).
In i ©
United States v. Slwfer, supra, the government was nor
e , ; ;
n notice by the 7th Circuit, as was the government in the 9th
Circuit, that they are “flirting with danger of reversal any
time i i
evidence is lost or inadvertently destroyed.” (United States
v. Heiden, supra at 903, fn.1). furthermore, in Shafer, a case
not involving the question of constructive possession or the
possibility of culpability by persons other than the Defendant,
the Court found no concrete prejudice to the defendant who haa
been given samples of the residuc of the destroyed evidence as
well i’ i i i
as derivative evidence obtained therefrom “tlere, none
n. 4
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p Finally, as renords the unnecessary and total) tl: Une
destruction of the containers prio: Lo any attempt to Obtain
fingerprint evidence therefrom vnd to any “opportunites fa;
defense analysis", Defendants urge that this as a case, not af
ation of highly relevant evidence. “On a spectrum between
good fuith but inadvertent loss and bad faith destruct ion
{the Government's) conduct must lie somewhere in the middje:,
Perhaps it should lie somewhat closer to the latter end."
United States v. Bryant, 439 F2d 642, 647 (1971).
Therefore, for al] of the above and foregoing reasons,
Defendants urge that the authorities upon which the Government
intends to rely and Gistinguishable on their facts and on the
applicable law, and cannot Support the certification by the
United States Attorney herein, that based upon such authority,
the Government's chances of succceding are great.
DATED: April 26, 1976
espectfully stbmitted,
DENNIS ROBERTS
On Behalf of All Defendants
inadvertent destruction, but rather of intentional NON resery-
UNITED STATES OF AMERICA,
KENNETH MOSES LOUD HAWK, RUSS
10 | JAMES REDNER, DENNIS JAMES BANKS,
RECEIVED
By
MAR 0« 1985
ROSE & STERN
Attorneys At Law
FOR THE NINTH CIRCUIT COURT F { L E D
) FED 28 1985
IN THE UNITED STATES COURT OF APPEALS
ba ‘ PHILLIP §. WitiBERRY
) NO. 83-3067 “Ml. US. COUR: Ui AFPEALS
) ORDER
‘
and DARLENE PEARL NICHOLS, A/K/A }
KaMOOK BANKS, ,
APPELLEES. ’
BEFORE: WALLACE AND CANBY, CIRCUIT JUDGES AND CRAIG*,
DISTRICT JUDGE
The motion of the United States tv recall and stay she
mandate is DENIED.
ited States
e Honorable Walter Early Craig, Senior Un
OP - — for the District of Arizona, sitting by
designation.
oa & & NH =
co ont Oo
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES Of AMERICA,
Plaintiff-Appellant, No. 83-3067
vs. [No. CR 75-296-RE, USDC br.
KENNETH MOSES LOUD HAWK, ) DEFENDANTS-APPELLEES
RUSS JAMES REDNER, ) OPPOSITION TO GOVERNMENT
DENNIS JAMES BANKS, ) MOTIONS TO STAY AND TO
KaMOOK BANKS, RECALL MANDATE
Defendants-Appellees. )
Defendant-Appellee DENNIS JAMES BANKS, by anc through
his counsel, Kenneth S. Stern of Rose & Stern, on behalf of
himself and all other defendants-appellees most vigorous};
urges this Court to deny the Government's Motions to Stay and
to Recall the Mandate issued in this case on January 16, 1985
and received by the District Court on January 18, 1985.
SUMMARY OF ARGUMENT
Since the mandate has issued, affirming Judge Redden's
ORDER dismissing the indictment with prejudice, the
Government's Motions to Stay Mandate and Recall Mandate are
moot. Furthermore, under the circumstances of this case,
this Court no longer has jurisdiction to grant the
Government's requested relief.
4//
4//
4//
4//
1-DEFENDANTS OPPOSITION TO MOTIONS TO STAY & RECALL MANDATE
10a
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FACTUAL BACKGROUND
After this Court issued its opinion in late August of
1984, the Government filed its Petition for Reconsideration.
That Petition was denied on January 8, 1985. Federal Rule of
Appellate Procedure 41(b) requires a Motion for a Stay of
Mandate Pending Application for Certiorari to be filed or the
mandate shall issue within 7 days after the petition for
rehearing is denied. FRAP 41(a). As no such motion was
filed. The mandate issued on January 16, 1985 and was re-
ceived by the District Court on January 18, 1965.1 Defense
counsel informed their clients that the receipt of the
mandate put Judge Redden's ORDER dismissing the case into
effect. They were informed that for the first time in ten
years the Government was no longer actively trying to
prosecute them. They were told that the case was dead.
Eight days after the burden of these charges was finally
lifted from the defendants' lives, defense counsel received a
MOTION to STAY MANDATE--and three days later a MOTION to
RECALL MANDATE. Apparently the Government has not yet
finally decided to let this case enjoy its quiet and well
Geserved death. However, the Government can point to no
1 The ORDER denying reconsideration is appended hereto as
Exhibit "A", the first page of the mandate as Exhibit "B,",
the MOTION TO STAY MANDATE as Exhibit "C," and the MOTION TO
RECALL MANDATE as Exhibit "D0." It should also be noted
that defense counsel have not received service of any
petition for certiorari to this date, and have no knowledge
of any such petition having been filed.
2-DEFENDANTS OPPOSITION TO MOTIONS TO STAY & RECALL MANDATE
lla
\ecrnrereirenw qo es © Nw =
ee
7
Rules of Appellate Procedure that provide this Court with the
powers of resurrection.
ARGUMENT
MOOTNESS
The MOTION TO STAY MANDATE is clearly moot as it wes
filed after the mandate has been properly issued pursuant to
FRAP 41.
LACK OF JURISDICTION
The “appellate process is terminated... when an
appellate court issues its mandate of affirmance."
United States v. Cook, 705 F.2d 351 (9th Cir., 1963).
Once a mandate issues jurisdiction is terminated.
However, jursidiction may be reasserted by recalling the
mandate in some circumstances. This case does not represent
one of those few circumstances.
Only where the mandate was erroneously issued, or where
it must be changed in order to effectuate the judgement may
it be recalled. Litigation is “settled” once a mandate
issues, and it should be recalled “sparingly” and then orly
under “exceptional circumstances" where “good cause" is shown
Dilley v. Alexander, 627 F.2d 407, 410 (D.C. Cir., 1980).
See: Wright, 16 Federal Practice and Procedure Sec 3938 (pps
276-290) and 5B C.J.S. Sec. 1995-1996 (pps. 648-652).
3-DEFENDANTS OPPOSITION TO MOTIONS TO STAY & RECALL MANDATE
l2a
28
The Government does not allege any "good cause"* in its
motion, and for good reason. This Court did not err in
issuing its mandate, nor does the mandate reed to te
“corrected” in any fashion. Defendants know of no case that
suggests that the Court has jurisdiction to recall the
mandate in order to undo the effect of the Government's
unexcused and unexplained failure to file a timely motion to
stay mandate. Indeed, obvious policy considerations militate
against granting the Government's requested relief, even i*
this Court did have jurisdiction.
Additionally, even if a Court can reassert jurisdiction
by recalling a mandate in some circumstances, it is unclear
whether it can do so once a criminal action has been
dismissed. The issuance of a mandate puts "the appellate
decision into effect." Wald v. Regan, 706 F.2d 794, 803 (lst
Cir., 1983). The appellate court decision in the instant
case was not one that merely returned jurisdiction to the
District Court to proceed further. The mandate affirmed
Judge Redden's ORDER dismissing this case with prejudice, and
put said order into effect. In essence, it was the entrance
of a “final judgement." See: United States v. Tulare Lake
Canal Co., 677 F.2d 713, 715 ‘9th Cir., 1982). This case was
DISMISSED WITH PREJUDICE since January 16, 1985. It remains
dismissed. In this circumstance, this Court has no
2 In fact, the Government suggests no reason at all why th:
mandate should be recalled.
4-DEFENDANTS OPPOSITION TO MOTIONS TO STAY & RECALL MANDATE
l3a
— —_
jurisdiction to breathe life into it again---and any attempt
to do so would profoundly impact defendant's constitutional
rights, including, but not limited to, their rights to due
process of the laws and to be free from cruel and unusual
punishments.
CONCLUSION
Once the mandate of this Court issues affirming a lower
court, the “appellate process is terminated." Catmitsch
v. Ricsley, 705 F.2d 351 (9th Cir., 1983). On January 19,
1985° for the first time in ten years, the defendants were
advised that the word “dismissed" actually meant that the
Government was both disinclined to continue prosecuting them,
and barred from changing its mind. They were told that the
“appellate process is terminated," Judge Redden's ORDER
dismissing the case with prejudice had actually gone into
effect. They were told that the Government icould no longer
appeal that ORDER. They were told that the issuance of the
mandate meant that the case was over, finally.
For whatever reason, the Government chose not to file a
Motion to Stay Mandate. The mandate issued, and has taken
effect.
//
3 The day counsel received a copy, of the mandate.
5-DEFENDANTS OPPOSITION TO MOTIONS TO STAY & RECALL MANDATE
l4a
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—
—_ ©
"History repeats itself---first as tragedy, then as
farce." In 1976 the Government delayed unnecessarily, but
was allegedly not sufficiently "forewarned" of the
consequences of that delay. Rule 41 is its own forewarning.
No timely motion to stay, as required by the rule, was filed.
The mandate issued. This case is dismissed with prejudice,
pursuant to the judgement of the Ninth Circuit. It may be
pursued by the Government no further.
For all the foregoing reasons, counsel plead with this
Court to deny the Government's motions.
Finally, it should be noted that counsel would be hard
pressed to explain to their clients how the ressurrection of
this case once the final death certificate has been filed by
this Court does not support their perception of the "forked
tongue syndrome."
Respectfully submitted,
ROSE & STERN,
by Kenneth S. Stern
ROSE and STERN
Suite 101 Kellogg Building
1935 SE Washington St.
Milwaukie, Oregon 97222
(503) 654-7792 4
Of Attorneys for Defendants-
Appellees
\
6-DEFENDANTS OPPOSITION TO MOTIONS TO STAY & RECALL MANDATE
15a
p | IN THE UNITED STAVES COURT OF APPEALS
| FILED
a
FOR THE NINTH CIRCUIT COURT
3 l unrreD STATE OF AMERCIA, ) JAN 8 1985
‘
APPELLANT, )
) NO. 83-3067
oO R RECEIVED
PHILLIP B.
aU waenay
KENNETH MOSES LOUD HAWK, RUSS )
JAMES REDNER, DENNIS JAMES BANKS,
and DARLENE PEARL NICHOLS, A/K/A )
| KaMOOK BANKS, ' JAN 2 + 7985
APPELLEES. ‘ ROSE & STERN
Attorneys At Law
| BEFORE: WALLACE AND CANBY, CIRCUIT JUDGES AND CRAIG*,
DISTRICT JUDG!
A majority of the panel as constituted above has voted to
|deny the petition for rehearing and suggestion for rehearing en
leone.
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a vote
jon it.
| The petition for rehearing is hereby jienied and the
|
Suggestion for rehearing en banc is rejected.
|
|
*The Honorable Walter Early Craiy, Senior United States District
Judge for the District of Arizona, sitting by designation.
| EXHIBIT "A"
l6a
4 _—
rd ;
FILED
JUOGMENT
Jan 18 8 29 AH 'BS
Wuited States Court af Aunpabs
FOR THE NINTH CIRGUIZ.
| RECEIVED
By
UNITED STATES OF AMERICA,
VAHL 2 1985
Plaintiff-Appellant,
om 4 ye, 8323067. ROSE & STERN
KENNETH MOSES LOUD HAWK, RUSS JA‘ES REINER, ‘in an Attorneys At Law
DENNIS JAMES BANKS, and DARLENE PEARL be CV 75 J ‘
NICHOLS, aka KaMOOK BANKS,
De fendants-Appellees.
j
APPEAL {rom the United States District Court Sop TO ctnemencssed TT TANI
Disteliet Of cccusacsce OREGON we eeeeadecdon soebese sscccocescoesececesesccccesoesesoosesoorsseso
THIS CAUSE came on to be heard on the Transcript of the Record from the Unitec States
District Court for the ...ccccs op ee
A TRUE COPWAN 16 1995
ATTEST
PHIL
Clerk
Pied end qntereS .ccoccminsancashccanaecencesss
EXHIBIT "B”
17a
—
IN THE UNITED STATES COURT OF APPEALS ‘*
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appel lant,
Vv.
KENNETH MOSES LOUD HAWK,
RUSS JAMES REDNER,
DENNIS JAMES BANKS, and
DARLENE PEARL NICHOLS, also known
as KaMook Banks,
Defendants-Appel lees.
NO. 83-3967
[No. CR 75-296-RC, USDC Oregon)
MOTION TO STAY MANDATE
me ee ee ee ee
The United States of America by Charles #1. Turner, United States Attorney
for the District of Oregon, moves the Court for an order staying the issuance
of the mandate in the above case pending resolution of the GovernRERe RIVED
petition for certiorari.
Dated this 24th day of January, 1985.
By
JAN © 4 1985
SE & STERN
At Lew
Respectfully submitted,
LES H. TURN
United States Attorney
District of Oreaon |
312 United States Courthouse
620 S.W. Main Street
Portland, OR 97205
(503) 221-2766
FTS: 423-2766
EXHIBIT "C"
18a
SY —
IN THE UNITIO aTATES COURT OF APPEALS
FOR THE NINTH CIRCULI
P F AMERICA,
UNITED STATES O HO. £&3-3067
intiff-Appecllart,
vice sn [tto. CN 75-296-RE,
v. USDC Oreaon)
KENNETH MOSES LOUD HIAUr,
RUSS JAMES 2EOER,
DENKIS JAMES BANKS, and
eee ee ee ww
my LON_TO ar REGELY, DATE
SSO ——— -”-—S—COSF
}
wae Siew iein” JAN 30 1985
Defendents-Ap:e’ lees. ROSE & STERN
Attorneys At Law
The United States 21 America by Chortes H. Turner,
Naited Stutes Aiturw for the visivict of Oreaon, moves
the Court fur am order rece’ ling the mancate in the above
case pending resolution of «he Severnment's petition for
certiorari.
Dated this 29th wy of danmary, 1935.
Pesnecttully submitted,
ugh ‘
CHAPLES H. TURNER
United States Attorney
Lisirict of Oregoy
3le United States Courthouse
4.720 S.W. Main Street
Pu. tland, OR 97265
'5N3) 221-2766
PTS: A23-27€6
EXHIBIT “D"
19a
4 CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing DEFENDANTS'
OPPOSITION TO MOTIONS TG STAY AND RECALL MANDATE on Charles
Turner, attorney of record for Plaintiff-Appellant by mailing
to said attorney a correct copy thereof, certified by me as
such, contained in a sealed envelope, with postage paid,
addressed to said attorney at said attorney's regular office
address, to wit:
Charles Turner
312 United States Courthouse
620 SW Main Street
Portland, Oregon 97205
and denosited in the post office at Milwaukie, Oregon on this
day. Between the said post office and the above address to
which said copy was mailed, there is a regular communication
by U.S. Mail.
DATED: January 31, 1985
Kenneth S. Stern
Of Attorneys for Defendants-Appellees
1-CERTIFICATE OF SERVICE
: 20a
;
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.