# Opposition Brief — United States v. Loud Hawk > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0194%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 474 U.S. 302 ## Text Aa <¢ 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 // // // // // // // {f/f // // // // // // s/f // // 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 // // // // // // 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, // // . // // ye // // // // // // // // // // // 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0194%3A04. Public record. Not legal advice.