Brief for the United States — United States v. Marion

Cases:

u

CITATIONS .

Page

Acree v. United States, 418 P. 2d 427. ee 27

Bartkus v. Illinois, 359 U.S. +} eee enee aCraraee 21

Beavers v. Haubert, 198 U.S.°77______- oe onan 15 |

Benson v. United States, 402 F. 2d 576_.____- 15, 24

Bey v. United States, 350 F. 2d 467__-..____.. 28

Bridges v. United States, 346 U.S. 209. ______ 24

Dickey v. Florida, 398 U.S. 30_____-- 15, 18, 25, 30

' Daniels v. Wnited States, 357 F. 2d 587 eee 28

~ Dunean v. Louisiana, 391 U.S. 145_.__==. 25

Escobedo v. Illinois, 378, US. 78. . 20

Hanrahan v. United States, 348 F.2d 363.___ . .14.

Hoffa v.. United States, 385 U.S. 293... ..____ 10, 20

Hoopengarner v. United States, 270 F. 2d 465__ 14, 15

Klopfer v. North Carolina, 386 U.S. 213. ___- 15, 16

Kroll v.. United States, 433 F. 2d 1282, cer-

tiorari denied, May 3, 1971, No. 1314, Oct.

Term, 1971_______._________ 8. 15

Lothridge v. United States, No. 20647, C. A. 6,

_ decided April 29, 1971__.-__- 2.8. ‘ 23

_ Mannv. United States, 304 F. 2d 394, certiorari

_ denied, 371 U.S. 896___________..__ 14

Nickens v. U nited States, 323 F. 2d 808, cer- .

tiorari denied, 379 U.S. 905...-: 14, 15

Pollard v. U nited States, 352 U.S. 354_______ “15, 31

‘Rochin v. California, 342 U.S. 165_.____2.__. 25

Ross v. United States, 349 F. 2d 210_- ._.. 27, 28, 33

Schlinsky .v. United States, 379 F. 2d 735____ 15, 24

Smith v. Hooey,'393 U.S. 374.____- 8 _- 15

Terlikowski v. United States, 379 F. 2d 501__- 15,

| 24, 27

Tynan v. United States, 376 F; 2d 761, certi-~

_ orari deniéd, 389 U.S. 845_________ aectse 33, 34

United States v. Blue, 384 U:S. re 2

United States: V. Ewell, 383 U.S. 116_____.__- 2,

14, 15, 18, 19, 24, 29, 33

III

Cases—Conitinued | Page *

. United States v. Feinberg, 383 F. 2d 60___.__- 15

United States v. Goldman, 277 U.S. 229. _____ 14

United States v. Grayson, 416 F. 2d 1073____- ‘ 23

United States v. Hark, 320 U.S. 531_________ 14

United States v. Kabot, 185 F. Supp 159, |

affirmed, 295 F. 2d 848, -eertiorari comet, oe

369 US. 808_______--_- 14

United States v. Napue, 401 F. 2d 107, certi-

orari denied, 393 U.S. 1024______________ 15, 24

United States v. Provoo, 350 U.S. 857, affirming |

¥7 F.R.D. 188_....2.. 22 ee 14,17

United States v. Reed, 413 F. 2d 338, certiorari

denied sub nom. Sartatn v. United States, 397 .

- US. 954-22 ee 15, 23

United States ex rel. Solomon v. Mancusi, 412 _

F. 2d 88, certiorari denied, 396 U.S. 936.__ 30

United States v. Weller, No. 77 Oct. Term, |

1970 (decided February 24, 1971)________- 9,13

Winship, In re, 397 U.S. 358___.___.._______ - 25

Constitution, statutes and rule: | ,

Constitution of the United States:

- Fifth Amendment... 2, 5, 11, 12, 22, 23, 25, 26, 27

Sixth Amendment__________.________. 2,

5, 9, 10, 12, 15, 16, 17, 18, 19, 20, 21, 29, 29

Criminal Appeals Act, 84 Stat. 1890________ 13

18 U.S.C. 341.0 4

18 U.S.C, 1343_ 2-2 4

18 U.S.C. 2319. 22 4

18 U.S.C. 3281___---- oeeeeeweet 27

18 U.S.C.:3282.__- 2-2-8 3, 9, 25, 26

18 U.S.C, 3731_____________. od eee ae . 2,3,13

-1 Stat! 119_-- 22. - 24

19 Stat. 32...---- 2. 24

68 Stat. 1145, 18 US.C. 3283 po eeeeteeee oe 24

IV

Constitution, statutes and rule—Continued —

The Habeas Corpus Act of 1679, ‘31 Charles,

Oo Be see deme tee eeeuc se fe sen uence 16, 17

Rule 48, Federal Rules of Criminal Pro-

cedure__..__.----------- 3,13, 14

Miscellaneous |

ABA Project on Minimum Standards for

Criminal - Justice, Standards Relating to

_ Speedy. Trial 23 (Approved Draft 1968)_-_- 22

IV Blackstone, Commentaries on the Laws of

' England *438 (Lewis ed. 1897)___________ 16

Coke, The Second Part of the Institutes of the ,

Laws of England 43 (Brooke, 5th ed. 1797)__ -16

Cooley, Constitutional Limitations 312 (1868) - - 17

The Federalist, No. 84 (Hamilton)_.._______- 16

Heller, The Sixth Amendment, 23 (1951) -_----- 17

8a Moore, Federal Practice, 48-12 (Cipes ed.

1970)_..-.-------2-------------- 82 14

Note, The Statute of Limitations in Crissiaal

Law: A Penetrable Barrier to Prosecution,

102 U. Pa. L. Rev. 630 (1954)_....--____- 24

6 Orfield, Criminal Procedure under the Federal

Rules 357 (1967)... ---- ee - 14

Second Circuit Rules Regarding Prompt Dis-

- position of Criminal Cases (Jan. 5, 1971) -_ _- 22

2 Stephens, A History of the Criminal Law of

England 1-2 (1883).___.------_-----___- 17

In the Supreme Court of the Gnited States

OcToBer TERM, 1970

No. 810

Unirep States oF AMERICA, APPELLANT

Wiu1am R. Marion ann Samvuet C. Cratcr

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

BRIEF FOR THE UNITED STATES

| OPINION BELOW

The district court did not deliver a written opinion.

Its oral explanation of its ruling is set out at App. 39.

JURISDICTION

On June 8, 1970, the district court entered an order

dismissing the indictment on the ground of lack of

speedy prosecution. A notice of appeal was filed on

_ July 8, 1970. On March 1, 1971, this Court entered °

\ an order postponing further consideration of the ques-

tion of Jurisdiction to the hearing of the case on the

merits (App. 42). Under 18 U.S.C. 3731, this Court

has jurisdiction, on direct appeal, to review a decision

‘ sustaining a motion in bar, where the defendants have

(1)

2

not been put in jeopardy. See United States v. Blue,

384 U.S. 251; United States v. Ewell, 383 U.S. 116, and

infra, pp. 13-14,

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction under former

18 U.S.C. 3731 to consider the .government’s appeal

from an order dismissing an indictment on the ground

that there has been a lack of speedy prosecution.

2. Whether the Sixth Amendment’s guarantee of a

speedy trial applies before charges have been brought.

3. Whether the Due Process Clause of the Fifth

Amendment provides a basis for shortening the erim-

inal statutes of limitations specified by Congress, or

whether the courts should ordinarily assume such a

function in the exercise of supervisory power..

4, Whether, even if the courts should enter this

area, an indictment may properly be dismissed on the

basis of pre-indictment delay that was not purpose-

ful, oppressive, or actually prejudicial to the de-

fendants.

CONSTITUTIONAL PROVISIONS, STATUTES AND RULE

| ‘INVOLVED -

The Fifth Amendment provides in pertinent part: .

No person shall be:* * * deprived of life,

— liberty, or Property, without due process of

law * -

The Sixth Amendment provides:

In all crimirfal prosecutions, the accused

shall enjoy the right to a speedy and public

- trial, hy an impartial jury of the State and dis-.

_ trict wherein the crime shall have been com-

3

mitted, which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation: to be con-

fronted with the witnesses against him; to have

compulsory process for obtaining witnesses in

his: favor, and to have the Assistance of Counsel

for his defense.

18 U.S.C. 3282 provides:

‘Except as otherwise expressly provided by

law, no person shall be prosecuted, tried, or

punished for any offense, not capital, unless the

indictment is found or the information is insti-

tuted within five years next after such offense

shall have been committed.

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

An appeal may be taken by and on behalf of ;

the United States from the district courts di-

rect to the Supreme Court of the United States .

in all criminal cases in the following instances :

* : * * * * :

i cat oft

7 Ngat rent PRETO TS TTI ING I w

From the decision or judgment sustaining a” |

motion in bar, when the defendant has not been

put in jeopardy. .

Rule 48(b), F.R.Cr.P., provides:

If there is unnecessary delay in - presenting

the charge to.a grand jury or in filing an infor-

mation against a defendant who has been held

to answer to the district court, or if there is

unnecessary delay in bringing a defendant to

trial, the court may dismiss the indictment, in- .

formation or complaint. |

STATEMENT

On April 21, 1970, an indictment was filed in the

United States District Court for the District of Co-

lumbia, charging appellees with mail fraud (four

counts), wire fraud (one count) and transporting

falsely made securities in interstate commerce (four-

teen counts), in violation of 18 U.S.C. 1341, 1343,

and 2314. The indictment alleged that from March 15,

1965, to February 6, 1967, appellees operated a busi-

ness in North Brentwood, Maryland, known as Allied

Enterprises, Inc., which sold and installed home in- —

tercom, fire control, and burglary detection systems,

- and the like; that they induced homeowners to enter

into contracts through false promises and representa-

tions; that after making token starts on the installa-

tion work specified in the contracts, appellees induced .

the homeowners to sign partially executed deeds of

trust or promissory notes, which they later secretly

_ altered and transferred to persons or firms who pur-

ported to be holders in due course; and that in fur-

therance of their scheme appellees engaged in the con-

duct forming the basis for each of the nineteen counts

in the indictment (App. 2-5). The earliest conduct

forming the basis for a count in the indictment al-

legedly occurred on September 3, 1965 (count 1), the

latest on January 19, 1966 (count 19). Twenty-one.

named individuals and “divers other persons” were

described as victims. of the scheme (App.’‘2).

On May 5, 1970, appellees filed a motion to dis-

miss the indictment on the ground that they had been

denied a speedy trial (App. 12-14). Appellees asserted

that the events charged in the indictment were a mat-

ter of public knowledge by October 1967, when they

were described in a series of newspaper articles; that

pertinent files of Allied Enterprises had been volun-

SOR A aT OG BBLS. ES ee

5

tarily turned over to the government in the summer

of 1968, at which time appellee Marion had engaged

in discussions with government counsel; and that not-

withstanding these cireumstanees, the grand jury that

indicted appellees was not empanelled until Septem-

ber 2, 1969, and appellees were not advised until March

1970 that the matters were under consideration. Ap- i

pellees claimed that the delay between the time the "

offenses were alleged to have been committed and the 4

indictment was unreasonable and oppressive under

the Fifth and Sixth Amendments to the Constitution

because they were now compelled to defend against

charges that would require them to remember events

long past and to produce “eyidence, both testimonial

and documentary, which may have become unavailable

by the passage of time” (App. 13-14). |

At a hearing conductedby J udge Hart. on June 8;

1970, the following was adduced.? In September and

October 1967, the Washington Post published a series

of articles dealing with deceptive practices of certain | :

home improvement companies (App. 24-25). Most of )

the articles were devoted to the operations of another

firm, but, on October 4 the newspaper mentioned ap-

pellees and their company, Allied Enterprises (App.

26). On several occasions the Post articles contained .

comments by the then United States Attorney for the

District of Columbia to the effect that his office had

begun intensively investigating’ the practices of a

dozen home improvement firms; that a two man “fraud

squad’’ had been specially designated to inyestigate

* No witnesses were called by either side. The factual descrip-

tion is derived from the colloquy between the court and counsel.

425-939—71__2

6 .

allegations of deception; that a special grand. jury

‘sworn on October, 9, 1967, would devote some time to

reviewing the practices of such companies; that his

office had been receiving complaints for two years,

and two indictments (not connected with the defend-

ants) had already been filed earlier that year; and

that he expected indictments within two’ weeks (A.

24-28). The newspaper also quoted the United States

Attorney’ as stating that the fraud claims are “not |

the crimes of violence I am now particularly inter-

ested in, of course, but it is the kind of illegal conduct,

we will look into.” (A. 26).

After quoting at length from the Washington Post

articles, particularly ‘the remarks~ attributed to the

United States Attorney, defense counsel argued that

the government could have proceeded long before it

did, and suggested that appellees’ recollections and

counsel’s ability te prepare their’ defenses were apt to

have been seriously. prejudiced by the delay. In coun-

sel’s view, the. probability of memory lapses, coupled

_ with the “intense notoriety” the case had received in

1967 and the “repeated suggestions” by the. United

States Attorney that indictments were expected to be

returned momentarily, warranted dismissal of the in-

dictment (A. 29-30). There was, however, no ‘specific

reference to any particular prejudicial factor.

Government counsel responded that he had stipu-

lated to the authenticity of the newspaper articles cited

by the defense, but not to the‘truth of their substan- .*

tive allegations, about which he was in. no pokition to

comment because he was not agmember of} the United

States Attorney’s Office at the time. Counsel stated that,

YN.

7

assuming the articles to be true, he had been advised

that a heavy case load and an understaffed office pre-

vented more expeditious handling of the matter. Capp.

35). He noted that in any event no actual prejudice

to appellees had resulted from the delay, since the evi-

dencé in the. case was essentially documentary and the

“scheme alleged in the indictment would be shown to

have been the customary manner in which the deé-

fendants conducted business ;. thus, they would not be

called upon to recite spevific detailed instances divorced

from their usual dealings. The prosecutor cited the

existence of several pending civil actions against the

defendants involving the ‘same fraudulent scheme,’

- which would necessarily assist them in maintaining their

recall. In addition, he observed that. the pertinent

documents In the government’s custody had always

* There -were at least seven such cases in the United States

District Court for the District of Columbia. (Appellees’ com-

pany, Allied Enterprises, maintained its offices in Maryland

(App. 3).) | | :

One was brought. by George agd Ruth Crutchfield, who are

naned in Count 18 of the indictment. as victims of appellees’

fraudulent scheme. Crutchfield v. Allied Enterprises, et al., Civ.

No. 1916-66, settled as to all defendants except Allied on March

14, 1968; settled and dismissed with prejudice as to Allied on

December 2, 1968. .

Another involyed the Reverend Andrew Johnson, who is

named in Count 9 of the indietment as a victim of appellees’

fraudulent scheme. Benson, et al. v. Allied Enterprises, Cratch,

Marion, et al., Civ. No. 2451-68. This was a class action; Reve-

rend Johnson’s ‘affidavit was filed on March 3, 1969. The case

is presently on appeal, Judge: Hart having dismissed the com-

plaint.on Qctober 30, 1970, for lack of personal service of

process and for failure to state a cause of action in two of the

7 counts. {The complaint was filed on October 1, 1968.) -

The other cases are: ; .

Harris vy. Allied Enterprises et al., Civ. No. 1917-66 (last

%

a - |.

, 8 .

been available for inspection: by defendants or their

counsel. Finally, he argued that a claim of denial of

a speedy i. based tipon the possibility of- faulty

memories r€sulting from delay was: premature at this

stage. (App. 32-36.) ° ae °

Following argument of counsel, Judge Hart issued

his order dismissing the indictment. He ruled that

the “matters complained of * * * were known: from

early 1967 or a matter of common knowledge ‘in.late

1967” and that the three-year “delay” from 1967 '

could not be justified by the need for “research and

éxamination” because this could. have been done

sooner. Referring to the fact that the counts in the

indictment involved specific transactions, Judge Hart

concluded that “by the very nature of this outrageous .

docket’ entry—time for filing ready certification extended to

December 31, 1968). | |

Talbert v. Cratch et al., Civ. No. 1950-86 (settled and dis-

missed with prejudice December 30, 1968). ° |

Elliott v. Atlas Credit Corp., et al., Civ. No. 2629-66 (de-

fault judgment entered against Allied on February 6, 1969;

dismissed as to Cratch on August 29, 1969).

_ Hawkins v. Allied Enterprises, et. al., Civ. No. 253-67. (set- -

tled and dismissed with prejudice on May 12, -1969).

) Johnson y. Allied Enterprises, et al,, Civ. No. 2458-67 (on

May 4, 1971, a consent order was filed voiding a note payable

to Allied and the plaintiffs’ executed deed of trust).. |

* The Federal Trade Commission issued a complaint against

Allied Enterprises-and defendant Marion (App. 26), but when

the respondents failed to answer and failed to appear for a

hearing, the examiner, on February 6, 1967, issued a default

judgment against them, ordering Allied and Marion to-cease

and desist from failing to inform their al that even

though they were purchasing under a referral plpn they were

nevertheless responsible for the full amount of their purchases.

Allied Eviterprises, Inc., CCH Trade Reg: Rep. 9 17,787, 17,849

‘(Transfer Binder 1965-1967). a

y,

' seheme,”’ alleged in the indictment, the defendants’

~ ability to recollect: and preparé their defense was

“bound to have been seriously prejudiced by the delay”

(App. 39). are Oo

~The applicable’ statute of limitations; 18 U.S.C.

8282, permits prosecution if the “indictment is found °

_ or the information is instituted within five. years next

after such-offense shall have’ been committed.’’ The

indictment here was brought within the prescribed

- period. |

-

; SUMMARY OF ARGUMENT ‘

I. Under former 18 U.S.C; 3731, the district court’s

order dismissing the indictment is a “judgment sus-

taining a motion in bar” and is therefore directly

appealable to this Court. Appellees’ plea before the |

district court did not challenge the allegations of

criminal activity in the indictment, but rather urged :

dismissal because of pre-indictment delay. -Under

“United States v. Weller, No. 77 (decided February 24, »

1971), this is clearly a “motion in bar”; and the dis.

trict court’s order granting tlie motion permanently

bars the government from prosecuting appellees for

the offenses charged in the indictment.

IT. The h Amendment’ provides that—tn all -

“criminal prosecutions” the “acéused”’ shall have the

right to a speedy trial. Before arrést or indictment, © ~

however, a person is not an “accused”’ and the/speedy

trial guarantee therefore does not apply. That- the

framers so intended is confirmed by the history of the

‘Sixth Amendment, which indicates that the right did

not arise until criminal proceédings: had commenced

at least by way of arrest. | ~ |

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Expanding the Sixth Amendment to cover pre-..

arrest or pre-indictment delay by defining an “ac-

cused’ as a person against whom the government

has sufficient evidence to seek an indictment would

be both unwarranted and unwise. Although one of

the three policies undeflying the right to a .speedy

trial might be impligated in this kind of delay—im-

pairment of the ability to defend—the effect of the

passage of time on a potential defendant does not

depend on the quantum of evidence in the govern-

ment’s possession. Moreover, as Hoffa v. United

States, 385 U.S. 293, recognized, the fact that the

government has enough evidence to establish probable

cause in no way obligates it to move against a suspect.

Much more may be needed to secure a conviction.

Also, where there is concurrent federal-state jurisdic-

tion, federal prosecutors often must await the state’s

decision about whether it will fulfill its primary

responsibility. by prosecuting. In the regulatory area,

the decision to prosecute may turn not on when

sufficient evidence is available, but rather on the

effectiveness of securing compliance by methods less

stringent than criminal sanctions. In addition, the

fact that certain evidence has been collected does not

mean the case is assembled arid ready to be presented

to the grand jury. Furthermore, requiring prosecu-

torial action as soon as a certain amount of evidence

has been discovered would encourage expediency and

discourage thoroughness, thus impeding efforts to

shorten the time between charge and trial, for the

success of which thorough precharge preparation is -

esgetint And finally, such an interpretation would

ip

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. . - : 7 , :

give rise to lengthy pretrial hearings. and add still

another preliminary hurdle before. trial. For cases

that are not dismissed at this stage, and this would

doubtless ,consist of the overwhelming majority, the

result would be to stretch out the period between

charge and trial even further, to me detriment of

all concerned.

III. These considerations also counsel against es-

tablishing a general rule under the Due Process

Clause to, supervise when crinfinal charges must be

brought. In enacting the statute of limitations Con-

gress balanced the harm to the defendant against

other factors; this Court would have to do the : same

under the Due Process Clause. Congress’ judgment

is entitled to great weight and we submit: that for

‘ases br ought. with the statute of limitations, except

those where the prosecutor has intentionally delayed in

order to impair the defense, due process of law is not

denied. Moreover, there are no circumstances. pre-

sented here that warrant this Court’s exercising its

supervisory power to govern pre-indictment delay.

IV. Even if this Court were to decide that there

should be judicial scrutiny of delay ‘before in-

dictment or arrest, the defendant must at least show

that he has-been Prejudiced by the delay, assuming

delay itself has been proven. The drastic remedy of

dismissing a criminal prosecution brought within the

statute of limitations can only be justified if the harm

to the defendant far outweighs the. public interest in

trying offenders for their criminal acts.

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12

Since the appellees have not shown any actual

prejudice, the district court’s order dismissing the in-

dictment should be reversed under any theory. Ap-

pellees knew they were under criminal investigation ;

_fnany civil suits involving activities charged in the in-

dictment were being litigated during the supposed de-

lay; the government’s proof consisted essentially of

documentary evidence,. which did not become less re-

liable during this period; and appellees have not even -

alleged that.any of their witnesses have disappeared

-or that any of their records have been lost.

ARGUMENT

The district judge dismissed the indictment because

there “has been a lack of speedy prosecution in this

case’ (App. 39). The judge did not specify the pre-

cise basis for dismissal, although in view of the argu-

ments of counsel (App. -15, 38), the judge’s reference

to “speedy prosecution,” and the order granting ap-

pellees’ motion to’ ‘Dismiss Indictment for Failure

to Afford Spéedy Trial” (App. 40), he appears ‘to

have relied upon the Sixth Amendment. After dis-

cussing the question of jurisdiction, we therefore turn

first to the issues raised with respect to the Sixth

Amendment. We then discuss whether dismissal was

proper under the Due Process Clause of the Fifth

Amendment, which appellees also cited as a basis for

relief (App. 13, 15).

t-

Dea e RNa era RTS ea

2 te spats SHOAL HG RED in IE IRS

13

9

I *

THE ORDER DISMISSING THE. INDICTMENT -FOR LACK OF

SPEEDY PROSECUTION W AS A DE CISION SUSTAINING Al

MOTION IN BAR DIRECTLY APPEALABLE TO THIS COURT

NDER "ORMER 18 U.S.C. 373 °

In their response to the govermment’ s jurisdictional

statement, appellees challenged thé -statutor y author-

ity relied upon by the gov ernment for taking an ap-

peal directly to this Court from Judge Hart’s dis-

missal of the indictment. The government based ‘its

right of appeal on that pait of former 18 U.S.C. 373

permitting a direct appeal to this Court from a dis-

trict court’s decision in a erimina] case “sustaining

a motion in bar, when the defendant has not been

_put in jeopardy.’’* Appellees argue that the dismissal

of the indictment for ‘lack of speedy prosecution”

does not constitute the eranting of a motion in bar

but is a decision premised upon the court’s disc ‘Vre- >

tionary power under Rule 48(b). .

United States v. Weller, No. 77, this Term, Febru-

ary 24, 1971, decided after the filing of our jurisdic-.

tional statement, makes clear that the phrase “‘motion

in bar’ encompasses all pleas in the nature of con--

fession and avoidance, that is, where the defendant

did not deny that he had committed the acts charged

or that those acts constituted a crime, but neverthe-

less urged that he could not be prosecuted because

°The 1970 amendment to the Criminal Appeals Act. S4 Stat.

1890, is not applicable to thé present appeal sincé hy its own

terms that amendment does not apply to cases “beeun in any

district court befgre [its] effective date.” te. January 2. 1971.

See United States v. Weller, No. 77, this Term, decided Febru-

ary 24, 1971, ship op. p. 15 n. 1. ‘ .

425-939—71—_-3

HR a lta a ¢

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Date ate

RE NRE ET

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POVEANINR TEE EDIE HOMEY ENTRANT RY NEE EMR DRT ROSES ince

.

Juice Mace ae, |

POEL SR REUSE RRL ALOD PLD LOE NAN Gb GLY DR. OIE Bo Toe Sg

14

of some extraneous factor, such as the tolling of the

statute of limitations or the denial of a speedy trial.

Judge Hart’s dismissal, if upheld, permanently bars

_ the government from’ prosecuting appellees for thé

- offenses alleged in the indictment. If prejudice did

result from the government’s delay in securing an in-

dictment, that prejudice cannot be cured. Thus, no

matter what terminology is applied to the basis for

dismissal, see United States v. Goldman, 277 U.S. 229;

United States v. Hark, 320 U.S. 531, the actual effect

ig to bar future indictments for the same. offenses.

This ws. 79 mere dismissal without prejudice for |

failure iv pzosecute, as might have. occurred on the

basis of. post-indictment delay. See United States v.

Ewell, 383 U.S. 116; United States v. Provoo, 350 |

U.S. 857, affirming 17 F.R.D. 183, 203 (D. Md.) 5

Mann v. United States, 304 F. 2d 394, 397 (CA.D.C.),

certiorari denied, 371 U.S. 896. Rather, the order

under review was in the most traditional sense a ~dudg-

ment sustaining a motion in bar.’’ ®

‘Judge Hart did not. mention Rule 00) of the Federal

Rules of Criminal Procedure, undoubtedly because that provi-

sion has no applicability here. Rule 48(b) allows the court to

dismiss an indictment if there is “unnecessary delay in pre-

senting the charge to .a grand jury * * * against a de-

fendant who has been held to answer to the .district court.”

But the “delay” here occurred before the appellees had been.

“held to answer to the district court.” ‘See, eg., Nickens v.

United States, 323 F. 2d 808, 809 (C.A.D.C.), certiorari denied,

379 U.S. 905; Hanrahan v. United States, 348 F. 2d 363, 366,

(C.A.D.C.) ; Hoopengarner v. United States, 270 F. 2d 465,

469 (C.A.6); United States v. Kabot, 185 F. Supp. 159 (S.D.-

N.Y.), affirmed, 295 F. 2d 848 (C.A. 2), certiorari denied,

369 U.S. 803; 8a Moore, Federal Practice 48-12 (Cipes ed.

1970); 6 Orfield, Criminal Procedure under the Federal Rules

357 (1967).

15

II

THE RIGHT OF AN ACCUSED TOA ‘SPEEDY TRIAL UNDER THE

SIXTH AMENDMENT DOES NOT: ARISE UN TIL CRIMINAL

CHARGES HAVE BEEN BROUGHT :

- The relatively few speedy trial decisions of this

Court have all involved situations where the defend-

ants objected to delays occurring after criminal pro- -

ceedings had been instituted. Dickey v. Florida, 398

U.S. 30; Smith v. Hooey, 393 U.S. 374; Klopfer v. North

Carolina, 386 U.S. 213; United States v. Ewell, 383 U.S

116; Pollard v. United States, 352 U.S. 354; Beuvers y.

Hasek. 198 U.S. 77. Here, in contrast, the defendants,

who were never arrested, clan that it was the passage

of. time preceding. indictment that deprived them OL -

their right under the Sixth Amendment. In recent years,

and with increasing frequency, the courts of appeals

have passed on,similar claims. Although a few circuits

appear to have left the question open, see Schlinsky v.

United States, 379 F. 2d 735 (C.A. 1); United States v

Feinberg, 383 F. 2d 60 (C.A. 2), most have held that

the Sixth Amendment docs not govern the time when,

criminal charges must first be brought. See, @.g.,.

_ Kroll v. United States, 433 F. 2d. 1282 (C.A. D),

certiorari denied, May 5, 1971, No. 1314, this Term,

Hoopewgarner v. United States, 270 F. 2d 465 (C.A. 6);

United States v - Napue, 401 F. 2d 107 (C.A. 7), certi-

orari denied, 393 U.S. 1024; Terlikowshki v. United

States, 379 F. 2d 501 (C.A: 8); Benson v. United

States, 402 FP. 2d 576 (C.A. 9) ; United States v. Reed

413 F. 2d 338 (C.A. 10), certiorari deniéd sub nom.

Sartain v. United States, 397 U.S. 954; Nickens v.

United States, 323 F. 2d 808 (C.A. D.C).

The wording of the Sixth Amendment leaves little

I

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16

doubt: ‘In all criminal prosecutions, the accused shall

enjoy the ‘right to a speédy and public trial * * * and —

to be informftd of the nature and cause of the accusa-

tion * * *.? The language could hardly be clearer that

only an “accused” in a ‘criminal prosecution” has %

right to a speedy trial, and the natural meaning of

“accused” is a person who has been charged with a

crime. The Sixth Amendment says nothing about-how

quickly* i investigations of criminal activity must cul-

- minate in the filing of charges against those suspected,

or, indeed, how: soon a erime must be detected before

the initiation of a criminal prosecution is foreclosed.

‘The natural meaning of the speedy trial guarantee

in the Sixth Amendment is confirmed by its history,

much of which is yecounted in Klopfer v. North Caro-

lina, 386 U.S. 218, 223-226. Sir Edward Coke’s obser-

vation‘ that thirteenth century justices with gaol or |

oyer and terminer commissions would not suffer a

prisoner to be long detained presupposes situations

’ where criminal proceedings had at least begun by wax

of arrest. 386 U.S. at 224. The Habeas Corpus Act of

1679, 31 Charles IT, e. 2, w hich Blac kstone described

as “the great bulwark of [the English] constitution, ” *

had a similar premise. The Act provided for “more

speedy relief of all persons imprisoned for any such |

_triminal or supposed criminal matters’? and required

that persons jailed for felonies ‘or treason be brought

to trial upon their own motion within two terms of

* Coke, The Second Part of the Institutes of the Laws of, Eng-

land 43 (Brooke, 5th ed., 1797).

‘IV Blackstone, Comieniares on the Laws of England *438

(Lewis ed. 1897): see also he Federalist No. 84 (Hamilton).

i RI EF EE I

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17

our or be discharged on bail. Id., ‘section VIL. It j is

not surprising that the Act nowhere even alludes to

delay before arrest. For the “maxim of [English] law

‘ has always been ‘Nullum tempus occurrit regi,’ and as

a criminal trial is regarded as an action by the king,

it follows that. it may be brought at any time.’’ 2 Ste

phens, A History of the Criminal Law of England 1-2

(1883) (setting forth illustrative cases). ‘:

In this country, most of the states that ratified the

Bill of Rights included speedy trial provisions in their-

constitutions which either copied or used as a guide the

English Habeas Corpus Act." And Article 8 of the

Virginia Bill of Rights, doubtless the immediate source

of the Sixth Amendment, secured the right to a speedy

trial in “eriminal prosecutions”? where ‘‘a man hath a

right to demand the cause and nature of his accusa-

tion.” Thus, both the language used by the framers

and the light which history sheds on its intended mean-

ing indicate clearly that the Sixth Amendment’s guar-

-antee. of. a speedy trial was designed to assure that

those aceused of crimes would have their trial without

undue delay, not that those at large would be speedily

accused of criminal activity.

It has heen suggested, however, that for speedy

*»The state constitutions are cited in Petition of Provoo, WW

F.R.D. 183, 197 n. 6 (PD. Md.), affirmed 350°U.S. 857: see also

Cooley, Conmiusional Limitations, 312 n. 2 (1868).

‘© Article 8 of the Virginia Bill of Rights reads as follows:

“In all capital or criminal prosecutions a man hath a right

to demand the cause and nature of his accusation, to be con-

fronted with the accusers and witnesses, to call for evidence in

his favour, and to a speedy trial by an impartial jury of twelve

men * * *"- ,

See Heller, The Sixth Amendment 23 (1951).

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triat purpoesés, a person might be deemed an

. “ faecused’ once the government has decided to

prosecute him and has sifficient evidence to move

against him.” Dickey v. Florida, supra, 398 U.S. at

45 n. 8 (Brennan, J., concurring). The record in this

case does not reveal when the- government decided

to prosecute. But the district judge did: find that the

activities mentioned in the indictment ‘‘were known

from early 1967 or a matter of common knowledge in

late 1967,” and, in referring to a three-year ‘“‘delay,”

_ he measured this from 1967 (App. 39). The rule -

applied below thus appears to be that the right to a ©

speedy trial attaches either (1) whenever the govern-

ment is deemed to have sufficient evidence to seek an

indictment or (2) whenever such evidence becomes a _

“matter of common knowledge.’? We cannot agree .

with ‘either a “decision” or a “sufficient evidence’’

criterion. - ee OO

Jn United States v. Ewell, supra, 383 U.S. at 120, this

Court recognized that the Sixth Amendment’s guaran- ~ -

tee of a speedy trial is an ‘important safeguard [1]

to prevent undue and oppressive. incarceration prior

to trial, [2] to minimize anxiety and concern accom-'

panying ptiblic accusation and [3] to limit the possi-

bilities that long, delay will impair the ability of an

accused to defend himself.” Fhe first and second of

these policies are usually not pertinent when the delay

occurs before indictment or arrest. The defendant is

free and he has not yet been charged with a crime.

This case is no exception. To be sure, articles in the

Washington Post implicated the defendants in fraud-

ulent activity, hut the newspaper nowhere attributed

e’

19

any such, allegation to the United States Attorney or

even mentioned any official indication that they or °

their company were under investigation." The: remedy

for accusations by private ‘persons 4s a civil suit for

. libel or slander; when the government has made no

official charge, there is no logical reason why it should

be expected to take any a to “minimize anxiety ame

coneern.”’

The defendant’s ability to mount a def ense, the third

factor referred to in Ewell, may of course he affected

_ by the passage of time before, as well as after indict-

ment or arrest. But the effect of the passage of time

on a person’s ability to defend himself does not depend

on when the government has sufficient: evidence te

move against a- suspect, or even when it decides to

proceed. If the prosecutor had no evidence at all the

effect would be the same, yet even under the district

court’s test the Sixth Amendment would not apply

in these circumstances because the person could not

possibly be characterized as an ‘“‘accused.”’

To be sure, if the government earlier had enough -

_ evidence to establish probable cause, this might have

made possible an earlier indictment or arrest. Given |

ample resources, most things can be done more rapidly,

including even ie discovery of evidence to establish

probable cause, as well as prosecutorial action on s

If our proposition is accepted that the Sixth Acasniiuient

does not come into play until the government takes some overt

step to “accuse” an individual, questions may of course. arise

with respect to what amounts to an accusation. This case does

not involve any such question since, as we have noted, the

appellees had not been arrested and no. official statements of

any kind had charged them with. criminal activity.

20

evidence after it has been discove red. But there is no

basis for the assumption that once the government

possesses this quantum of proof it should be obligated

to act. Much more may be needed far the government to

satisfy itself that a conviction is feasible or appropri-

ate; indeed, further evidence that comes to light may

lead to a decision not to indict. The Court recognized *

this in Hoffa v. United States, 385 U.S. 293, 309-310,

where the petitioner, relying on Hscobedo. v. [llinors,

378 U.S. 478, argued that since he would have had a

right to counsel under the Sixth Amendment had the

government taken him into custody and charged him

with an offense, he should have been entitled to the

same right at the moment the government had ‘suffi-

cient evidence to dq so: In rejecting this argument,

the Court said:

There is no eonstitutional right to be arrested.

The’ police are not required to guess at their

peril ‘the precise moment at which they have

probable cause to arrest a suspect, risking a

violation of the Fourth Amendment if they

act too soon, and a violation of the Sixth

Amendment if they wait too long. Law enforee-

« ment officers are under no constitutional duty

to-eall a halt to a criminal investigation the

moment they have the minimum evidence to

establish probable cause, a quantum of evidence

which may fall far short of the amount neces-

saty to support a criminal conviction.

The same principle applies to indictment as to arrest,

-There are further reasons why the fact that the

government has enough evidence to seek an indict-

fey aaa: 2D. Calabatabi a Oo) tate Ck teal eter ea

. .

21

ment should not obligate it to:do so at that time. In

many cases where there is concurrent federal-state

jurisdiction, see, e.g., Bartkus v. Illinois, 359 U.S.

121, state ‘authorities should have primary responsi-

bility for instituting criminal proceedings. A federal

prosecutor may accordingly withhold the filing of

charges pending the state’s decision whether to act,

even though sufficient evidence is already available to.

support a federal indictment. In regulatory areas,

the decision to seek an indictment at a certain time

may depend less on the amount of evidence available

than on whether methods less stringent than criminal

sanctions should be utilized for enforcement.

Moreover, the mere availability of a certain amount

of information scarcely means that a case’ is ready to

be presented to a grand jury. Prosecuting authorities

cannot be expected to assemble eases bit by bit as each

new piece of evidence comes to light, even assuming

they are aware of it. They also cannot be expected to

keep detailed records of when evidence accumulated

to the point of probable or even certain cause to be-

lieve a person committed the crime for which he is

later indicted. Yet the district court’s rule for deter-

mining at what point a person becomes an ‘‘accused”’

‘would require just that.

Of still greater significance, catonueeie the Sixth

Amendment in this manner would encourage expedi-

ency on the part of prosecutors and discourage thor-

oughness, and would be inconsistent with efforts to

effectuate the purposes of the Sixth Amendment: by

°

chorteniie the period betw een indictment and trial “—

a goal that makes thorough pr echatge” pr eparation all

the more essential. ’

Finally, the inevitable result of judicial inquiry into

pre-arrest or pre- _indictment delay would be to involve

the . courts in. lengthy hearings to determine matters

that are not capable of ‘easy proof, For cases that

‘are not dismissed, which would doubtless be the over-

whelming majority, this could only extend the period

hefore trial even further, to the detriment of all con-

cerned. In short, ‘“[t]o recognize a general speedy

trial right commencing as of the time arrest or charg-

ing was possible would have unfortunate coneegnenee es

for the operation of the eriminal justice system.’

The Sixth Amendment's language should therefore not -

he stretched to cover the period preceding the formal

bringing of charges or-arrest.

IIL

THE DUE PROCESS CL AUSE OF THE FIFTH AMENDMENT

PROVIDES NO BASIS FOR SHORTENING THE LIMITATIONS

PERIODS SPECIFIED BY CONGRESS, AND THE COURTS

SHOULD NOT ORDINARILY EXERCISE THEIR SUPERVISORY

POWERS “SX THIS AREA

Many of the considerations mentioned above with

respect to the Sixth Amendment militate as well

against formulating a general rule for preindictment

12 See, e.g., Second Circuit Rules Regarding Prompt Disposi-

tion of: Criminal Cases (Jan. 5, 1971), requiring the govern-

ment to be ready for trial within six months. of arrest. or in-

dictment, whichever is earlier.

13 ABA Project on Minimum Standards for Criminal Justice,

Standards Relating to Speedy :Trial 23 (Approv ed Draft 1968).

delay on the basis of the Due Process Clause of the

Fifth Amendment. Of course the Due Process Clause

is not limited to the rights of an ‘“‘accused’”’ in a

‘criminal prosecution’? as is the speedy. trial guar-

antee. Nevertheless, a standard regarding prosecution

‘delay before arrest or.indictment would still entail

all the adverse consequences mentioned above.

Lengthy hearings with respect to when the govern-

“ment could haye proceeded would be unavoidable since

mere passage of time could not be:-deemed “delay”

unless it involved the government's postponing action

that could have been:taken. And as we have pointed

out, the fact that the government could, in retrospect,

have acted cannot reasonably be transformed into an

absolute requirement that the prosecution. should be

_aborted because the government did not act at the

_ first. possible moment. |

These difficulties obviously could be avoided by rely-

ing on a general standard based simp’y on. the lapse

of time between commission of the offense and the fil-

ing of charges, without reference to the ability of the

prosecution to move earlier. _Phis of course esse ntially

describes the function of7a ‘statute of limitations. It

is our position that, with narrow exceptions, any pros-

ecution brought within the general time limits reason-

ably set by, Congress is not subject to challenge for

delay under the Due Process Clause."

™The courts of appeals have taken Varying positions on this

question. Some have held that the statute of limitations ex-

clusively controls, see United States v. Grayson, 416 F. 2d 1073,

1076-1077 (C.A. 5); Lothridge v. United States, No. 20647. C.A.

6. decided April 29, 1971; United States v. Reed. 413 F. 2d 338.

340 (C.A. 10). Others have held that due process might

24

We start with the proposition that *‘the #£pplicable

statute of limitations * * * is usually considered’ the

primary guarantee against bringing overly stale crim-

inal charges,’’ United States v. Ewell, 383 U.S. 116,

122. Unlike England, where theré are relatively few |

statutes of limitations on criminal prosecutions,” in .

this country there is a “long-standing congressional

‘policy of repose.’”? Bridges v. United States, 346

U.S. '209, 215-216. In 1790, Congress enacted a general

statute of limitations barring criminal prosecutions of

non-capital offenses unless brought within two. years

of commission of the offense. 1 Stat. 112, 119. The period

of limitation was extended to three years in 1876, 19

Stat: 32, and five years in 1954, 68 Stat. 1145, 18

U.S.C. 3289, ‘The latter statute is applicable to this

case and does not bar this prosecution since the indi ot-

ment was returned within less than five years. There

is no reason to believe that the general five-year limita-

tions period is inherently unreasonable, and there are

no special circumstances suggesting that due process.

required a shorter period in this case.

Foremost among the,policies underlying the federal

statutes of limitations\ is. Congress’ desire to protect

be denied in extraordinary circumstances, see, e.g., Schlinshy

v. United States, 379 F. 2d 735, 737 (C.A. 1) (relief might be

available if there is a showing of “actual prejudice” and “im-

proper motivation” for delaying) ; Terk:kowski v, United States.

379 F. 2d 501, 505 (C.A.8) (due process denied if the govern-

ment “deliberately utilized delay to strengthen its position by

weakening that of. the defense”); Benson v. United States,

402 F. 2d 576,580 (C.A. 9) (requiring “special circumstances”) ;

compare United States v. Napue, 401 F. 2d 107, 114 (C.A. 7).

15 Note, The Statute of Limitations in Oviminal Law: A

Penetrable Barrier to Prosecution, 102 U. Pad. LL. Rev. 630

(1954).

eo

25

persons from having to defend charges of long-past

misconduct. The statute also exerts time-pressure on

law enforcement: officials to discover law-violators and

bring.them to justice.”* As against these policies, there

is the danger that a period of limitations, particularly

a. Jelatively short one, may lessen the deterrent force

of the criminal law by allowing the guilty to escape

prosecution and may also prevent confinement of dan-

gerous offenders.

The limitations period chosen reflects a congression-

al balancing of these considerations. Judicial scrutiny

of pre-indictment or pre-arrest delay under the Due

Process Clause, as this Court has. interpreted ‘that

constitutional provision, see In re Winship, 397 U.S.

(358; but see id. at 377 (Black, J. dissenting), would

involve the courts in the same process. Whether the

delay before indictment or arrest were judged in

light of “fundamental fairness,” Duncan v. Louisiana,

391 U.S. 145, 171, 186-187 (Harlan, J., dissenting), —

or the Scommunity’s sense. of fair play and decency,”

Rochin v. California, 342 U. S. 165, 173, the courts

would have to. weigh the same factors that underlay

Congress’ decision in 18 U.S.C. 3282 to allow prosecu-

tions to be brought within five years after the offense.

“Such legislative judgments are clearly entitled to

great weight in determining what constitutes unrea-

sonable: delay.”” Dickey v. Florida, 398 U.S. 30, 47

(Brennan, J., concurring). And with respect to eS

* In addition, the statute may provide an opportunity for sel f-

rehabilitation by offering security from prosecution when the limi-

tation period has run; if the offender has not reformed, he can be

indjcted for his more recent offenses.

ale ad as |

CELLOS NBT RAS

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ornngegite

26

ecutions governed by 18 U.S.C. 3282, we submit that

due process of law is not denied when the time limits

prescribed by Congvess are observed. ;

We recognize of course that a statute of limitations

is a general standard and that, in contrast, the Due

Process Clause could serve as a basis for rendering

judgments about the particular circumstances in each

individual case. There are, to be sure, particular in-

stances where the passage of time between commission

of the offense and-indictment may have exceptionally

lessened the defendant’s ability to defend. But even

if dué process of law meant, which it surely does not,

that an indictment must be dismissed for any delay

whatsoever, the possibility that memories dimmed or

records disappeared would still remain in cases where

the government acted with utmost dispatch. The risk

is inherent in any system of criminal justice and while

it might bé reduced by a case-by-case approach under

the Due Process Clause, the possibility of accomplish-

ing some good is clearly outweighed by the other fac-

tors we have mentioned above, supra pp. 90-23, not the

least of which are the overriding substantive difficul-

“ties and procedural delays involved in determining

when the government should have moved against each

potential defendant. .— |

In arguing that due process is not denied when a

prosecution is begun within tHe applieable period of

limitations, we do not ignore the problem that would

be presented if a prosecutor intentionally delayed the

start of criminal proceedings for the purpose of im-

pairing the potential defendant’s ability to defend. We:

are aware of no such cases, but whether a court acted

27

on the basis of the Due Process Olause or its super-

visory power, that kind of tactic surely would not and

should not be tolerated.” The focus in such a situation.

should not be on the delay as such, but on the prose-

cutorial overreaching it reflects. We also do not deal .

here with cases where there is no applicable statute

limiting the time for prosecutions since ® that is not the

situation in this case. | _

Moreover there-are no circumstances presented here

that-would justify promulgating a-special rule on the’

basis of this Court’s supervisory power, as the United

States Court of Appeals for the District of Columbia

did with respect to a particular type of narcotics m-

vestigation routinely conducted by the Me tropolitan

Police. Ross v. United States, 349 F; 2d 210 (C.A.

D.C.). In Ross, the court held that .even though the

defendant had been charged well within the statute of

limitations, the delay of seven months between the

alleged commission of the offense and the swe aring out

of the complaint required reversal of his subse quent

conviction. The court based its decision on a number

of special factors: (1) the defendant was charged with

a narcotics violation arising from a single transaction

with an undercover agent of the Metropolitan Police:

(2) his eonviction was based ‘solely on the agent’s

‘* Compare Acree v. United States. 418 F. %d 427, 430 (C.A.

10) (relief might be granted if the facts demonstrate a delay

with a sinister purpose”); Terlikowshi v. United States. 379 F.

2d 501, 505 (CLA. 8) (due process would be denied if the

government “deliberately utilized delay to strengthen its position

by weakening that of the defense’ Pe

’’ For capital offenses Congress has set no time limit’ for

when an indictment may be found. 18 U.S.C. 3281.

& Ce

> a

28

testimony; (3) the agent had been involved in numer-

ous narcotics transactions and needed the aid of his

notebook to testify about his short encounter with the

defendant; (4) the only reason for the delay of seven

months before charging the defendant was a desire

riot to disclose the agent’s identity until his under-

cover work had ceased; and (9) the defendant had

only a limited education and experienced difficulty in,

remembering events even in the recent past, as did

one of his witnesses. Thus, the court held that “in this

very narrow and specialized. class of narcotics cases”

a “due regard for [the court’s] supervisory respon-

sibility” called for relief. 349 F.. 2d at 215-216. Sub-

sequent cases have confirmed that Ross is limited to

the particular circumstances there presented,” which

are in no way analogous to those here and indeed

could be assessed only after a trial.

19 Seé ¢.g., Bey v, United States, 350 F. 2d°467 (C.A. D.C.),

also a narcotics case, distinguishing /oss on the ground that

there was more than one transaction and each involved a Jengthy

confrontation with a trained undercover agent of the Federal

Bureau of Narcotics; Daniels v. United States, 357 F.°2d 587

(C.A. D.C.), another narcotics case, where both the majority

ard dissent distinguished /?0ss on the ground that there was

corroboration for the agent’s testiniony and because the “risk

of conviction of an innocent person—the basic concern of the

Narcotics Delay cases—was no greater here than in the ordi-

nary criminal cases,” 2d. at 590 (Bazelon, C.J., concurring on

this point, but dissenting on other grounds).

29

IV

EVEN IF JUDICIAL EXAMINATION OF PRE-INDICTMENT DE-

LAY WERE APPROPRIATE, RELIEF SHOULD NOT BE GIVEN

_ WITHOUT A SHOWING OF ACTUAL PREJUDICE, WHICH HAS

NOT BEEN MADE IN THIS.CASE |

A

For the reasons’ given, we think it*clear that the

Sixth Amendment does not apply to the period before

charges are brought, and that it is inappropriate to

apply constitutional due process principles to ‘delay

as such (absent clear prosecutorial abuse). Nor should

the courts substitute their supervisory powers for the’

judgment Congress has made unless an unusual sit-

uation is presented. But even if there were to be judi-

cial consideration of the time: lapse before charges

were brought in a particular case, we urge that the |

only sound basis for granting relief from a delayed

indictment should be a particularized showing of ex-

' ceptional prejudice to the defense. OF

The drastic step of dismissing a criminal prosecu-

tion that has been instituted within the statute of

limitations can, in our view, only be justified if the

court has determined that the injury to the defendant

outweighs the public interest in trying him for

the offenses charged. In the absence of a showing of

actual harm to the defendant from the delay, the bal-

ance is quite clearly in favor of allowing the prose--

cution to proceed. In cases involving delay between _

indictment. and trial, the’ Court has required the de-

fendant to show that he has thereby been prejudiced.

See United States v. Ewell, 383 U.S. 116, 120, 122;

‘

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Dickey v. Florida, 398 U.S. 30, 36-38; see. also United

States ex rel. Solomon v. Mancusi, 412 F. 2d 88 (C.A.

2), certiorari denied, 396 U.S. 936. Particularly since

‘ potential defendants are not imprisoned and are not

under the shadow of public accusation, the Court

should require at least as much when the claim for

relief is based on pre-indictment delay.

In addition, the accused should have the burden of

showing prejudice. He will know whether potential

witnesses have disappeared or whether records have

been lost, and he will also know how these. would have

been material to his defense. These are matters not

necessarily known to the government. Moreover, to

require the government to show lack of prejudice

~ would impose upon it the unrealistic task of predict-

ing possible defenses and the variety of ways these

could be presented and of then showing that no sig-

nificant evidence that might have been available to

support these defenses was Jost. In seeking: the extra-_

ordinary remedy of having the indictment dismissed,

- the accused therefore should carry the burden of prov-

ing specific prejudice.

Factors other than prejudice might, of course, be-

come relevant if there were to be such judicial exam-

ination of pre-indictment delay. If the delay in bring-

ing charges is not in fact attributable to the govern-

ment (but rather, for example, to identifiable defense

_ efforts to impede the investigation), the issue of prej-

udice would not be reached. And when the delay is.

chargeable to the government, the government should

pe allowed to show countervailing reasons why ‘an in-

dictment should not be dismissed even when there is -

‘ : ;

f ¢ f

vv

31 -

a certain amount of prejudice to the. defendant; that

is, there should be a balancing of the fastification for

a delay against the resulting prejudice. For example,

if the government shows that it needed the time for

the investigation of an ‘unusually complex case, or to

verify the appropriateness of , proceeding, or to iden-

. tify other persons directly ‘involved ; in’ an illegal

scheme, we would urge that a higher standard of

prejudice should be required than in a case of unex-

plained delay. And obviously the length of the delay’

would be an elément in any sueh assessment of rea- ‘

sonableness as well as in the assessment of prejudice.

| B gee

It is evident that the indictment in this case was

improperly dismissed if, as we have contended, the

courts should not examine preindictment delay not

exceeding the’ limitations period. There is: no sugges-

tion here of deliberate or oppressive conduct on\the

| pert of the government. See Pollard y. United States,

352 U.S. 354, 361. The most that can: be said is that

an inadequate work force and the need to use avail-

_able manpower to move forward with cases command-

ing a_ higher priority prevented more expeditious

handling of the matter. Thus, this must be treated

as a case of delay which—though perhaps chargeable to

the government—has none of the elements that might

give rise to a due process claim. Nor are.there special -

circumstances here appealing to the exercise of | super-

Visory power. — , 7

Even if this kind of pre-indictment delay is appro-

priate for Judicial examination, there has been no

ram

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32

showing that this is a case where relief was warranted.

“In the first place, it is not clear in this case how

much of the time should be regarded as unjustified delay.

The particular offenses charged in the indictment

allegedly occurred between September 1965 and Janu-

ary 1966; the indictment was filed on April 21,'1970,

a little more than four years after the last act

charged. Exactly how much earlier than April 1970

the prosecution against appellees could have been ini-

tiated has never been determined. Newspaper articles

appearing in the Washington Post in September and

— October 1967 disclosed the fraudulent practices of

certain home improvement companies, including ap-

pellees’, and reported that a two-man task force in the

United States Attorney’s- office had been assigned to

investigate (App. 27). The district judge’s conclusion

that the government had sufficient information to

commence prosecution in late 1967 is based solely

‘upon the newspaper stories. But newspaper reporters

do not necessarily follow probable cause standards.”

Appellees’ files, which had to be examined thoroughly

Sefore any action could be taken, were not obtained by

government investigators until early 1969 (App. 31-32,

7° At the hearing before Judge Hart, government counsel did:

not agree that the substantive allégations of the newspaper

articles were true. The United States Attorney at the time of *

the disclosures by the Washington Post, who was quoted as

indicating that a grand jury sworn on October 9, 1967, would”

investigate, was no longer in office at the time appellees were

actually indicted.

+t = 5 — a an

‘ - SS Se ee ee ail De et .

ae Ao

33

34)” and there is no indication that they could have

been secured earlier.

In any event, even assiiming that the government is

chargeable with an unjustified delay after 1967, there is

no showing of real prejudice here. As in United States.

v. Ewell, supra, 383 U.S. at. 122, “the appellees’ claim

of possible prejudice in defending themselves is insub-

stantial, speculative, and premature. They mention no

specific evidence which has actually disappeared or has

been lost, no witnesses who are known to havo disap-

Pg red. ”? . : a

Appellees undoubtedly knew or should have known

that they were under criminal investigation long before

they were summoned for a grand jury appearance,

since their files had been transmitted to the United

States Attorney’s Office sometime betw een the summer

of 1968 and January 1969. Moreover, the government

disclosed that its case was based essentially on docu-

mentary evidence. In Tynan v. United States, 376 F.

2d 761 (C.A. D.C.), certiorari denied, 389 U.S. 845,

a speedy trial claim was rejected in a case involving

multiple counts of mail fraud; the Court found clear

‘distinctions between the problems of proof in the de-

fense of a narcotics prosecution (Ross, supra p. 27) °

and a mail fraud trial. In the latter the “nature of the

Governnient’s proof i in support of the several counts of

the indictment is not of the nature that is blurred,

obscured, dissipated, or destroyed by the passage of

the period of time involved in this case. The trans-

actions involving individual witnesses are generally

*1 Or, according to appellee Marion, the summer of 1968 (App.

31-32, 34).

oF a #&

Be LEMANS AAA LEA AEK

unique in their experience, and where documentary

evidence is accepted, it, by its very nature, retains its

reliability.’’ 376 F. 2d at 763.

The loss of relevant proof in the present case 1S |

especially unlikely in view of the fact that during the

pre-indictment period the appellees were continuously

engaged in the defense of a number of civil actions

involving the same subject matter as the criminal

‘charges (see p. 7 supra).-At least two of. these civil

actions involve appellees’ dealings with victims named

in the indictment (note 2 supra).

This case is an apt illustration of the dangers that —

lie in an expansive interpretation of claims of denial

of a speedy trial with respect to the. period between

offense and the beginning of criminal -proceedings.

Within the period of limitations appellees have been

- charged with gross fraud upon unsuspecting and un-

protected members. of the public. Under the district

court’s order they are allowed to go free without trial

' because—at most—me prosecutor or investigator

might have been more diligent. This result is reached

in a case where-documentary evidence, unaffected by

the passage of time, will be a major part of the proof

and where the appellees have made no showing of

any léss of witnesses or actual harm. Dismissal in this

case would in no way aid the interests of justice.

35

CONCLUSION

For the foregoing reasons, we respectfully submit

that the. judgmént below should be reversed and the

indictment ordered reinstated.

ERWIN N. GrIswo1p,

Solicitor General.

Wit WILson,

Assistant Attorney General

A. RayMonD RANDOLPH, JR.,

Assistant to the Solicitor General,

BEATRICE ROSENBERG,

MERVYN Hambure,

‘Attorneys.

May 1971.

-_

‘

U.S. GOVERNMENT PRINTING OFFICE: 1971

ae

Page

Questions Presented ............... ies enuresis

Counterstatement .........0...ceeecceeeeeueeees ee

Sumary of Argument Cane eeees Beeouheeeeatenpeane se

Argument ....... ee er ne

I. Toe Rvuixe or THE DistTRict JupDcE May Not BE

APPLIED DirEcTLY To THIS COURT ..............

- The Order Granting Appellee’s Motion To Dis-

miss the Indictment Did Not Sustain a ‘‘ Mo-

tion in Bar’’ Under Former Title 18, U.S.C.

BIDE see ese ete ae nee en ee ees

Il. Tue District JupcE Property Exercisep His Dis-

CRETION IN DISMISSING THE INDICTMENT FoR UN-

NECESSARY DELAY IN PRESENTING THE CHARGE TOA

GRAND JURY co0cucccaceceusceeses eee

The Accusations of Crime and the Identity of

the Accused Were Common Knowledge in -

the Community, and the Defendant’s ‘Rec-

_ords in the Possession of the Government,

Several Years Before the Indictment Was

Filed 2 gs .56 os os cess uate : ea

-TII. Tue StxtH AMenpMeEnT Ricut To Speepy TRIAL

SuHouLtp ATTACH AND Optain THROUGHOUT THE

ConTINUUM OF CRIMINAL Law ENFORCEMENT

_FROM OFFENSE TO COMPLETION OF PUNISHMENT ..

An Accused Should Be Tried, Subject to the

' Requirements of Ordered Expedition, With-

‘ina Reasonable Time After the Government

Discovers, or Should Have Discovered in the

Exercise of Due | iligenee, That a Crime

Has Been Committed by Him ............

Conclusion ...... bene aan “aglaw Lees alee nieine eee ae

1

2

3D.

6

10

-10

12

PRT TOYA REE EAE ETA NAN BORON

SANDEE SF INT PTE

ARREST RAIN HAYS IN GENO S”

e

di _ ~ “Index Continued

)

, a CITATIONS ” ee,

‘s . : Page

CAsEs: | :

Burns v. United States, 287 U.S. 416 (1932) .......... 10

Brady v. Maryland, 373 U.S. 83 (1963) avunsuceseesses - 20

Brotherhogd of Locomotive Engineers v. Missourt-

' Kamsas-Texas R. Co., 363 U.S. 528 (1960) :...... 10

Carroll v. United States, 354 U.S. 394 (1957) .....2.. 6, 8

Cohen v. United States, 366 F.2d 363 (9th Cir, 1966)... +. 8

D’ Aquino v. United States, 192 F.2d 338 (9th Cir.’

MOOL) 6 coe actatnusens ae oy can sete sus evasnneess 12

Dickey v. Florida, ‘398 U.S. 30 (1970) ... 0... ee ee eee 13, 20

Escobedo v. Illinois, 378 U.S. 478 ( 964) errr ae eee 17 fs

Ex parte Altman, 34 F.Supp.-106 (D.S.D. CaF. 1940) .

Ex parte Wilson, 114 U.S. 417 (1885) ..........000 00% 15

~~

Goldberg v. Hoffman, 225 F.2d 463 (7th Cir. 1955) . "% )

Harling v. United States, 401 F.2d 392 (D.C. Cir. 1968)

cert. denied 393 U.S. 1086 (1969) ........00...00. 22

Harlow v. United States, 301 F.2d 361 (! 5th Cir. 1 2).. 14

TTedgepeth v. United States, 364 F.2d 684 (D. . Cir.

W9GG). ensc os eee vedo ees bee yeaa tes cue 16, 17, 22

Hinton..v. United States, 424 F. 2a is (D. C. Cir.

1969) Tee ee ee Sere ree ere rere 22°

Hoffa v. United States, 385 U. S. 293 (1966) Poalwesass 16

Hoopengarner v. United States, 270 F.2d 465 (6th Cir.

1999) oes gee vee ese eaek eee en eae asses atu ks teens 13

In re Strauss, 197 U.S. 324 (1905) ............0.000- 18

King v. Robinson, (1765) 96 E.R. 313 ........5....... 14

Klopfer v. North Carolina, 386 U.S. 213 (1967) ...... 12,:20

Ling v. Wabash R. Co., 370 U.S. 626 (1962) .......... 10

Manp-v. United States, 304 F.2d 394 (D.C. Cir. 1962),

-~ “eert. denied 371 U.S. 896 (1962) ..:...........5.

Newman v. United States, 382 F.2d 479 (D.C. Cir.

D960) oie tetra eo beg ee eee eee esas 16

Nickens v. United States, 323 F.2d 808 (D. C. Cir. 1963), _

| cert. denied 379 U.S. 905 (1963) ....0.. eee ee eee 13, 14

Petition of Provoo, 17 F.R.D. 183: (D.Md. 1955) aff’d. !

350 U.S. 857 ( 1955) Deu weeleeegeseeenes oh ences 14, 15

Pollard v. United States, 352 U.S. 354 (1957) ........ 19

Queen v. Robins; (1844) 1 Cox C.C. 114 .....¢. ekuens _14

_ Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965) .. 14

Scher v. Umted States, 305 U.S. 251 (1938)........... 16

Smith v. Hooey, 393 U.S. 374 (1969). peereesutueieues 20

ae |

Index Continue® - iii :

Page 4

Taylor v. United States, 238 F.2d 259 .. C. Cir. 1956). 14 :

od United States v. Apex Distribution Company, 270 F.2d ia

NAT COUNT, 1989): Sra cesa gov cveey feseeeseceeves 8 . 4A

Vaited States v. Augenblick, 393 U.S. 348 (1969) ..... 16 | i

United States v. Blue, 384 U.S. 251 (1966) ........... 8 __§

United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971). 16 :

United States v. Cadarr, 197 U.S. 475 (1905) ......... 8 (

United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970), i

cert? denied 397 U.S. 1037 (1970) .............06.

United States v. Ewell, 383 U.S, 116 (1966) ...... 12,2021 *& 4

United States v. Hark, 320 U.S. 531 (1944) .......... 7

United States v. IIc ster, 325 F.2d 654 (9th Cir. 1964) . 8 ‘

United States vy. Holt, (App. No. 23, 928; D.C. Cir. de- 4

cided June 28, 1971) er ry Se er re re er 22 F

United States v. McWilliams, 163 F.2d 695 (1947) ....8,10

United States v. Mersky, 361 U.S 431 (1960) ...... 1. «6

United States v. Sisson, 399 U.S. 267 (1970) .....6.... ‘8

United States v. Sweet, 399 U.S. 517 (1970) .......... . 8

United States v. Thaiupson, 2)1 U.S. 407 (1920) ..... « 16

United States v. Vuitch, 402 U.S. 62 (1971) .......... 6

United States v. Wade, 388 U.S. 218 (1960): saeewees es ‘16

United States v. Weller, 401 U.S. 254 (1971) .......... oe _

Will v, United States, 389 U.S. 90 (1967) ............ 6 ‘4

CoNSTITUTION, Srarores, AND Ruts: — , 'p

Constitution of the Ynited States :

‘Article IV, Section 2 ..............4.0.. peeeaes 18 .

HUTCH, PMC NOINCNY “6 ogc 5 ce he sewess sea weee cas 7, 14 i

7 Sixth Amendment *...... eaeees es 3, 5° 12, 15, 17, 23 ‘

TS US Cy 8 OL ne exe cae oho eee eee eden 15 fc

18 U0 « 8 Scee cou 4s wees eres eyes bon eduwndneneses 15 :

18 US. S$ OF8e ok 6 som seh ed on bees b0 dees bees 16 4

1S Wy 5 BO0U 254044 sbasecda seen caseaneadeswess 16 ,

18 U. S.C., $3731 ..... eee er ee Pree 9

Rule 6, F.R.Crim.P. ......... eee eeeseeeeens caucuses 16

Rule 48, F.R.Crim.P. ........:2..ccceccccceccvcios 1, 9,.10