Appellees Brief — United States v. Marion

: ‘iv Index Continued

4 Page

| MISCELLANEOUS: .

; American Bar Association Project on Minimum Stand-

A ’ ards for Criminal Justice, Standards Relating to

: Speedy Trial (Approved Draft 1968) ............ 14

: Annot., 50 A.L.R. 2d 943 (1956) .......... eae Sasa ee 8

3 100 Cong. Rec. 14781 (1954) .. 0... cece cece eee 15

3 Gardner, The Perception and Memory of Witnesses, 18

: ; Corn. 15:0: 591 419383)... 6545405600 whe candace ese 21

2 Goldstein, Police Discretion Not to Invoke the Crimi-

: nal Process: Low Visibility Decistons in the Ad-

3 _ ministration of Justice, 69 Yale L.J. 548 (1960) ... 16

3 Hutchins and Slesinger, Some Observations on the Law

: of Evidence—Memory, 41 Harv. L.Rev. 860 (1928) 21

McIntyre and Lippman, Prosecutors and Early Dis-

1 position of Felony Cases, 56 A.B.A.J. 1154 (1970). 17

‘ 8A Moore’s: Federal Practice, § 48.03[1] ore ‘ed. 7

3 TOTOy oe ieaivgs eos vo tne oye eae nasa ees or 8e4sss 10

+ Notes of Advisory Committee on Federal Criminal -

3 _ MOUReS, TUG BF nbs oc cc ee cene sees one ceeenceyes 10

3 Note, Constitutional Right to a Speedy Trial: The Ble.

4 ments of Prejudice and the Burden of Proof, 44

: 4 seep: 120). S10 11971) osc c cc es cs hewe sss sadeess 22 -

+ Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476

; . (1968) ee Oe she deeivesindeeuss aoe cee ee 12, 14, 22

3 Note, Effective Guaranty of a Speedy Trial for Con-

i - wicts in Other Jurisdictions, 77 Yale LJ. 767

| CT9G8) hee cee see g ss eons seneesecaess ew esus 15

4g Note, Constitutional Limits on Pre-Arrest ‘Delay, 51

: Towa L.Rev. 670 (1966) ..... 2... cc0 vesevees sens 22

i Note, The Lagging Right to a Speedy Trial, 51 Va. L.

i BOV.15087 (1965) cs xec ce cei ecaceeus eax hess 14, 15, 17

: Second Circut Rules Regarding Prompt ins abaiaie of -

a Criminal Cases (1971) 1.0... cece cece cece eee 17

a Speedy Trial Act of 1971 (S. 895) 0... cece eee ees 17

1 U.S. Code Cong. & Ad. News 1351 (1954) .......... * 15 -

Pape? | Geos eT ea

egy nae

‘

INTHE

Supreme Court of the United States

No. 70-19 .

Unrrep Srares oF AMERICA, Appellant

Vv.

Witu1aM R. Marion anp SAMUEL C. Cratcu, Appellees:

On Appeal From the United States District Court for the

District of Columbia

BRIEF F OR THE APPELLEE WILLIAM R. MARION

QUESTIONS PRESENTED

‘The appellee William R. Marion adopts the Govern-

ment’s statement of Question 1. Ile restates Questions

2.-4. as follows:

2. Whether the dismissal ‘of the indictment repre-

sented an abuse of the District Court’s discretion to

dismiss an indictment for want of prosecution or for

unnecessary delay in presenting the charge to a grand

~ jury under F.R.Crim.P. 48(b).

3. Whether the Sixth Amendment’s guarantee of

a speedy trial obtains before the indictment is filed.

4. Whether formal proof of purposeful or oppres-

sive Government motive or prejudice other than loss

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of the aceused’s own memory are conditions to dis-

missal of an indictment for failure to afford a speedy

trial. .

COUNTERSTATEMENT

The indictment, filed April 21, 1970, charged that,

from approximately mid-March of 1965 until early

1967,’ a period of nearly 23 months, the appellee Wil-

* liam R. Marion and the co-appellee Samuel C. Cratch

controlled a corporation known as Allied Enterprizes,

Ine., engaged in the business of selling home intercom

and alarm systems on credit to homeowners in the

Washington, D. C., metropolitan area. The deferred

portion of the purchase price for each system was usu-

ally secured by a junior mortgage on the customer’s

heme, and customers were asked to ‘participate, in a

referral plan by which they received money payments

from Allied Enterprizes, Inc., for new purchasers of

Allied’s product solicited by them. As conducted, the

business was said to have involved mail and wire fraud

and the interstate transportation of false securities..

(App. 2-5).

In December of 1966, the Federal Trade Commission |

began an investigation of the business practices of

Allied Enterprizes, Inc., and, finding some of them ob-

jectionable, issued an initial cease- -and-desist order (by

default) on Febyuary 6, 1967, and a final order on

April 11, 1967. Allied Enterprizes. Ine., conducted no

business after February 6, 1967. (Exhibit A to Motion

to Dismiss Indictment; App. 23).

Beginning September .1, 1967, and continuing at

_ intervals through October 11, 1967, The Washington

1The last event charged as a part of the ‘‘fraud’’ is alleged to

have occurred January 19, 1966 (App. 11).

—

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3

Post newspaper printed a series of articles, some ap-

pearing omits front page, exposing the allegedly illegal

activities of various business firms in obtaining junior

mortgages to. secure their customers’ indebtedness for

the credit purchase of home improvement materials

and services.2. The articles asserted, inter alia, that the

companies were then being invéMtigated by United

States Postal Inspectors, the FHA, the FTC, and the

Justice Department; that the U.S. Attorney’s office had |

begun receiving complaints about them more than two

years earlier; that on March 30 [of 1967] ‘Federal

investigators’’ had delivered a ‘‘lengthy’’ report to the

U.S. Attorney; thatthe U.S. Attorney had set up a

‘‘special frand squad)’ in July [of 1967]; that a Justice

Departnient “specialist on frands’’ had been assigned

to assist in presenting evidence to a grand jury which

had been sworn in [on October 9, 1967] ; that the Assist-

ant U.S. Attorney in charge of the ‘‘fraud.squad,’’ Sey-

mour Glanzer, had been relieved of other duties to en-

able him to concentrate on the case; and that the U.S.

Attorney expected indictments ‘‘within ‘two weeks.”’

(Exhibits B-H, J-L, to Motion to Dismiss Indictment ;

App. 25-28)*

The articles were accompanied by editorials on Octo-

ber 6 and 16, 1967, entitled, respectively, ‘‘ Despicable

2 At oral argument, counsel for the Government stipulated to

the authenticity of the articles but not to the truth of their con-

tents. (App. 35). The Government has at no time, however, dis-

puted the accuracy of ihe quotations and statements attributed to

the then U.S. Attorney for the District of Columbia.

-? Appellee’s company, Allied Enterprizes, Inec., and appellee

Marion, were both mentioned by name in the article appearing on

page A-1 of the Wednesday, October 4, 1967, edition of the Post,

entitled ‘‘Intereom Buyers Expected Prizes but Got Mortgages.’’

(Exhibit F, Motion to Dismiss Indictment).

.

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4

Racket”? and ‘‘Crimes Against the Poor.’’? (Exhibits

I, M, to Motion to Dismiss Indictment). —

‘Sometime between the ‘‘summer of 1968’’ (according

to appellee Marion) and ‘‘ January of 1969’’ (accord-

ing to the Government) Marion delivered: all of the

records of Allied Enterprizes, Inc., to Assistant U.S.

Attorneys Seymour Glanzer and Sandor Frankel, and

- discussed his activities with them in detail. (App. 13,

31, 34). The records have remained in custody of the

UL. S. Attorney’s Office since that time. (App. 31, 34).

Thereafter, appellee Marion, who was neither ar-

rested nor formally charged at any time prior to indiet- -

ment, was told nothing whatsoever as to what disposi-

tion was to be made of the accusations against him until

he was advised that a subpoena had been issued to com-

pel his presence before a grand jury (sworn in the.

previous September) on March 16, 1970. (App..13).

The indictment of April 21, 1970, drawn in 19 counts,

| charged the appellee Marion, as both principal and

aider-and-abettor, with mail fraud, wire fraud, and

interstate transportation of false securities against 21

victims alleged by name, and ‘‘divers other persons,”’

between March 15, 1965, and pepeneny 6, 1967. (App.

2-11).

At his arraienment April 29, 1970, Marion entered.

a plea of Not Guilty to all counts. His Motion to Dis- |

miss was filed May 5, 1970, heard and granted by Dis-

trict Judge George L. Hart, Jr., on June 8, 1970, and

the indictment ordered dismissed as to both defendants.

(App. 40). From that Order this appeal by the Gov-

ernment is taken.

4)

SUMMARY OF ARGUMENT

I. The dismissal of the indictment for lack of speedy

prosecution did not: sustain a ‘‘motion in bar’’ as de-

fined by this Court under former 18 U.S.C., § 3731, be-

cause the dismissal did not ‘‘bar’’ subsequent prosecu-

tion for the same events, is not a ruling contemplated

by the Criminal Appeals Act to have required direct

review by this Court, and was essentially a discretion-

ary dismissal of which review by this Court would not

be consistent with its own narrow construction of its

appellate jurisdiction of appeals by the Government in

criminal prosecutions terminating favorably to the

accused.

II. The dismissal of the indictment was a discretion- :

ary dismissal for want of prosecution or for unneces-

sary delay in presenting the charge to the grand jury

under Rule 41 (b), F.R.Cri im.P. , and the District Judge

did not abuse his discretion in dismissing an indictment

filed more than ‘three years after the Government

learned of the alleged crime and the circumstances of

its commission, and the identity of the defendant.

III. The dismissal of the indictment for failure to .

afford the accused his right to a speedy trial under the

Sixth Amendment was consistent with purposes for’

which the right exists, viz., to protect the accused

against the anxiety Seeasioned by accusations of crime

and the possibility of an unfair trial on stale charges,

to induce the Government to proceed with orderly ex-

pedition in bringing criminal charges to trial, and to

secure for society the objectives of the criminal process

of punishment, deterrence, and rehabilitation. Not-

withstanding the delay occurs prior to the formal filing

of the indictment, reason and authority require the

F

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CDP Cash pict ABER LO, Bg. tO eB AO GM I te hes

Sixth- Amendment right to a speedy trial to prohibit

unnecessary delay in acting upon accusations of crime

at all stages of the process, independently of the statute

of limitations. Neither Governmental malice nor loss

of specific evidence need be formally proved as a con-

dition to relief from such unnecessary delay.

ARGUMENT

I. THE RULING OF THE DISTRICT JUDGE MAY NOT BE

APPEALED DIRECTLY TO THIS COURT

The Order Granting Appellee’s Motion To Dismiss the Indict-

ment Did Not Sustain a “Motion in Bar” Under Former

Title 18, U.S.C., § 3731 .

The Court has-held that it possesses appellate juris-

diction only to the extent conferred by statute, and in

criminal cases upon appeals by the Government the

statute will be strictly construed. Carroll v. United

States, 354 U.S. 394 (1957). Not only does such an

appeal ‘‘offend the policies behind the double-jeopardy

prohibition,’’ but when taken prior to trial in a pend-

ing case further delays any subsequent proceedings re-

quired. Will v. United States, 389 U.S. 90, at 96 (1967).

The policy sought to be implemented by the former

direct-review provision of the Criminal ‘Appeals Act

contemplated prompt, final, and universally-binding

resolution of controversial rulings purporting to decide

broad questions of law which, as precedents, might im-

pair the Government’s ability to prosecute other cases.

See. United States v. Mersky, 361 U.S. 481, at 434-436

(1960); Harlan, J., dissenting in United States v.

Vuitch, 402 U.S. 62, [28 L.ed. 2d 601, at 616-618]

(1971). The District Judge in the instant case made

no such ruling. Upon a unique state of facts ‘‘in this

ease,’’ (App. 39), he held simply that the Government,

=

= Be Rene BR ee

7

having knowledge of an alleged crime, the identity of

the persons alleged to have committed it, and all of the

details of its commission, for its own reasons dallied

too long in beginning the process of bringiug the de-

_ fendants to trial. »

The Government contends United States v. Weller, |

401 US. 254.(1971) is conclusive of the Court’s juris-

diction to entertain this appeal. Its import, however, _

is, if anything, to the contrary. In Weller, this Court

remanded the appeal to the Court of Appeals, holding ©

itself without jurisdiction to pass upon the Govern-

ment’s direct appeal from the dismissal of an indict-

ment.on non-constitutional grounds, deciding once more

on analogy to the rules of common law pleading that

the particular ground of dismissal was not equivalent to

a “plea in bar.”? -In Weller, although the appellee’s

motion to dismiss had been based upon the constitu-_

tional ground of the Fifth Amendment, the indictment

was dismissed on the nonconstitutional ground that the

offending regulation was not authorized by the enabling

statute. As had the appellee in Weller, the appellee

Marion in the instant case moved to dismiss on. Fifth |

and Sixth Amendment grounds, but the District J udge

did-‘not purport to rule on constitutional grounds. Both

Weller and Marion (by his plea of Not Guilty) main-

tained, moreover, ‘that their respective acts were

‘‘simply not a crime.’’ Jd., at 260.

Thus, because Weller, is not dispositive, as it did in

Weller and in its precedents, the Court must look be-

yond the pleadings in this case to “‘the effect of the rul-

ing sought to be reviewed.’’ Only if the effect is “to .

end the cause and exculpate the defendant’’ may it be

_ treated as a ‘‘bar’’ to the prosecution. and, thus, appeal-

able to the Court. United States v. Hark, 320 U.S. 531,

as *.. GRR

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cian eS

at 536 (1944) ; United States v. Blue, 384 U.S. 251

(1966).

Dismissals for want of prosecution have historically

not been regarded as a ‘‘bar’’ to subsequent prosecution

for the same events. Cohen v. United Stutes, 366 F.2¢

363 (9th Cir. 1966) ; United States v. Apex Distributing

o

Company, 270 F.2d 747 (9th Cir. 1959) ; Mann v. United .

States, 304 F.2d 394 (D.C. Cir. 1962) ; Hx parte Altman,

34 F.Supp. 106 (D.S.D. Cal. 1940) ; Annot., 50 A.L.R.

2d 943 (1956). Cf. United States v. Cadarr, 197 U.S.

475 (1905). Nor does the Goverument’s practieal in-

ability or unwillingness to complete the prosecution

under the conditions of the order from which it seeks to

appeal for that reason alone render it a decision subject

to direct review by this Court. Carroll v. United States,

354 U.S. 394. (1957) ; United States v.. Sweet, 399 U.S.

517 (1970). Cf. United States v. Sisson, 399 U.S. 267

(1970). Indeed, such an order may not be appealable.

atall. United States v. Hester, 325 F.2d.654 (9th Cir.

(1963) ; United States v. Apex Distributing Company,

supra.

‘On the other hand, at least one Court of Appeals’ has

presumed its jurisdiction of such an appeal (and the ©

statute, of course, prov ided for mutually exclusive

rather than concurrent jurisdiction in this Court and -

the circuit courts of appeal). United States v. Mc Wil-

‘ liams, 163 F.2d 695 (D.C. Cir. 1947).

In ruling upon appellee Marion’s Motion to Dismiss,

the District Judge, after summarizing the chronology

of the alleged offenses and the common community

knowledge of them, of: the Government’s desultory re-

sponse, he said:

' “The Court, therefore, views that there has been a

lack of speedy prosecution in this case, and will

POL ERE™ ape sa

ee Ee EM EME Re et

2

9

grant the Motion to dismiss.” (App. 39) (Em-

phasis supplied). .

His decision, in terms, therefore, was limited to ‘‘this

case.’’ It made no reference to the Constitution, nor

did it purport to find some other ‘‘extraneous factor,”’

such as the statute of limitations or immunity, an in-

-. superable obstacle to prosecution. It appears, there-

_ fore, to have been based’ entirely upon Rule 48(b),

F.R.Crim.P., which, in unambiguous language, declares -

the universal, traditional, and inherent discretionary ~

power of a court to dismiss an indictment if there has

been ‘‘unnecessary delay in presenting the charge to a

grand jury ...’’ once the defendant has been ‘“‘held

to answer”’ in the District Court.

This Court has not, to date, held such a purely dis-

cretionary ruling appealable to this Court rather than -

to the appropriate circuit court of appeals under the

former 18 U.S.C., § 3731. To allow a direct appeal of

_ .such ruling to this Court would not only fail to fulfill

the legislative objective of the Criminal Appeals Act

but would attenuate the principle 6f the restrictive con-

struction of the Court’s appellate jurisdiction to the

point of rendering virtually every discretionary dis-

missal of an indictment by a trial judge susceptible of

direct review here.

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.

“~S

IL THE DISTRICT JUDGE PROPERLY EXERCISED HIS DISCRE-

TION IN DISMISSING THE INDICTMENT FOR UNNECES-

SARY DELAY IN PRESENTING THE CHARGE TO A GRAND

JURY

The Accusations of Crime and the Identity of the Accused

‘Were Common Knowledge in the Community, and the De- -

_fendant’s Records in the Possession of the Government,

Several Years Before the Indictment Was Filed "

The power of a trial court to dismiss an action for

‘want of prosecution is a discretionary power of ‘‘an-

cient origin.”’ Link v. Wabash R. Co., 370 U.S. 626, at

630 (1962). It has ‘‘... generally been considered an

‘inherent power,’ governed not by rule or statute but

by the control necessarily yested in courts to manage’

their own affairs so as to achieve the orderly and ex-

peditious disposition of cases.’’? Id., at 630-631. Rule

48(b), F.R.Crim.P., is a ‘‘. . . restatement of the in-

herent power of the court to dismiss a [criminal] case

_ for want of prosecution.’’ Notes of Advisory Com-

mittee on Rules, Rule 48(b). See 8A Moore’s Federal

Practice § 48.03[1] (Cipes ed. 1970). The exercise of a

discretionary power by a trial court is subject to review

_ on appeal only for an abuse of that discretion. Brother-

hood of Locomotive Engineers v. Missouri-Kansas-

Texas R. Co., 363 U.S. 528, (1960); United States v.

DeLeo, 422 F.2d 487, at 495 (1st Cir. 1970), certiorari

denied 397 U.S. 1037 (1970), and the scope of review

limited to determining that the decision nci have been

' “arbitrary, fanciful, or clearly unreasonable,”’ United

States v. McW uliams, 163 F.2d 695, at 697 (1947),

taking ‘‘account of the law and the particular cir-

cumstances of the case and... directed by the reason

and conscience of the judge to a just result.”” Burns

v..Umted States, 287 U.S. 216, at 222-223 (1932).

Disregarding altogether the-accuracy of the news-

paper articles appearing in early October 1967, it is. ©

11

undisputed that, by February 6,. 1967, the Federal

_ Trade Commission had completed its investigation and

prosecuted to a successful conclusion its own proceed-

ings to terminate what it deemed to be the appellee’s |

unlawful business activity. It is further undisputed

that the articles, in fact, were published in a daily news-

paper of general circulation in the Washington, D. C.,

metropolitan area, with the appellee named by name

and his alleged crime:describell in detail to the com-

munity at large, together with editorial exhortations to

his prompt punishment. Finally, it is undisputed that,

sometime during the ensuing two years, appellee not

only voluntarily delivered all of his business records to

the Assistant United States Attorney in charge of the

case, but also,-without compulsion, discussed his busi-

ness activities with them. |

The indictment was not returned until April 21, 1970.

The Government’s unelaborated explanation at-

tributed the delay in its presentation to the grand jury

to insufficient personnel to work on such cases of

relatively low priority. ‘(App. 35; Jurisdictional State-

ment, 7). In the circumstances, it can hardly be said

_ to be “arbitrary, fanciful, or clearly unreasonable’? to

find a delay of over three years in presenting the charge

to a grand jury unnecessary. | |

12

lll, THE SIXTH AMENDMENT. RIGHT TO SPEEDY TRIAL

.SHOULD ATTACH AND OBTAIN THROUGHOUT THE CON-

TINUUM OF CRIMINAL LAW ENFORCEMENT - FROM OF-

FENSE TO COMPLETION OF PUNISHMENT ‘;

| An Accused Should Be Tried, Subject to the ‘Requirements of

Ordered Expedition, Within a Reasonable Time After the

Government Discovers, or Should Have Discovered in the

Exercise of Due Diligence, That a Crime Has Been Com-

mitted by Him

Notwithstanding its early and eminent origins, the

_history of the right to a speedy trial has not been w ell-

documented, nor have its. dimensions been fixed with

precision. Note, The ‘Right toa Speed y Trial, 20 Stan.

L.Rev. 476, at 483-485 (1968) ; Brennan, J., concurring

in Dickey v. Florida, 398 U.S. 30, at 40 ( 1970). Never-

theless, in tracing its lineage to the Magna Carta

(1215), Chief Justice Warren said in Klopfer v. North

Carolina, 386 U.S. 213, at 223 (1967) :

‘‘We hold here that the right to a speedy trial is as

fundamental as any of the rights secured by the

Sixth Amendment. That right has its roots at the

very foundation of: our’ English law heritage.”’

Its purposes include the prevention of unnecessary

incarceration prior to trial, the minimization of anxiety

and concern accompanying public accusation, and the

limitation of the possibilities that long delay will im-

pair the ability of an accused to defend himself. United

States v. Ewell, 383 U.S. 116, at 120 (1966). Even in

the absence of physical restraint, an impending prose-

cution may subject the potential defendant to public

scorn, deprive him of employment, and curtail his

speech, association, and participation in unpopular

-eauses. Klopfer v. North Carolina, supra, at 221-222.

Prompt disposition of accusations of criminal con-

duct is important to accused, accuser, and society. at

13

large, for all of the reasons justifying the existence of

the criminal law itself—punishment, deterrence, and re- —'

habilitation. As time elapses from the moment. an al-

leged offense takes place, the objectives of the criminal

process become increasingly difficult to attain. For the

accused who is innocent, or believes himself wrongly ac-

cused, the most important praccical consequence of the’

passage of time is the attrition of his ability to respond

to the accusation. And for the accused who is oblivious

of the state’s purpose to try him for the acts of which he

is accused, the effect is exacerbated by his inattention

to the necessity of preserving the evidence to do so. The

ministerial formality of the filing of the indictment or

information merely serves as notice to him that he must

attempt-to reassemble what may already have been ir-

retrievably lost. Even an awareness that he is ‘‘under

investigation, ’? which perhaps produces more anxiety

than a known and pending charge, does not apprise an

accused of the crime he is suspected of committing or

the identity of his accuser.

The Government correctly ohecrves (Br. 15), how-

ever, that a majority of the cireuit courts of appeal

has applied the conventional rule, apparently first ex-

pressed in D’Aquino v. United States, 192 F.2d 338, at

350.(9th Cir. Trae that the right to a speedy trial does

nof.arise until ‘‘...a formal complaint is lodged against

the defendant in a criminal ease,” and that as to the

interval following the commission of an alleged offense

until an indictment or information is filed, the statute of

limitations exclusively delimits the time during which —

the accused is exposed to prosecution. See Nickens v.

' United States, 323 F.2d 808 (D.C. Cir. 1963), certiorari

denied 379 U.S. 905 (1964); H oopengarner v. United

States, 270 F.2d 465 (6th Cir. 1959).

peat ied

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soreeiecion tieiesintateee inthatie pe ik aa ee Se ea ee oe

14

This Court has not approved the conventional rule,

which has encountered both judicial and academic criti-

cism, e.g., Rives, J., concurring in Harlow v. United

States, 301 F.2d 361, at 375 (Sth Cir. 1962) ; Wright, J.,

concurring in Nickens v. United States, 323 F.2d 808, at

812-813 (D.C. Cir. 1963) ; Note, The Right to a Speedy

Trial, 20 Stan. L.Rev. 476, at 488-490 (1968) ; Note, The

Lagging Right toa Speedy Trial, 51 Va. L.Rev. 1587, at ©

1613-1615 (1965). See American Bar Association

Project on Minimum Standards for Criminal Justice,

Standards Relating to Speedy Trial, at 22 (Approved

_ Draft 1968). Moreover, before the conventional rule

developed currency, lower courts proceeded on the un-

expressed assumption that pre-indictmeént delay should

be included in computing the interval during which the

right to a speedy trial obtained, Taylor v. United

States, 238 F.2d 259 (D.C. Cir. 1956); Petition of ~

Provoo, 17 F.R.D. 183 (D.Md. 1955), aff’d. 350 U.S.

857 (1955), and aversion to Fabian investigations of

complaints of crime seems to have been very much a

part of the ‘*English law heritage”’ of the right to a

speedy trial. See King v. Robinson, (1765) 96 E.R.

313 (Lord Mansfield, C.J.) ; Alderson, B., in Queen V.

Robins, (1844), 1 Cox C.C. 114, at 114.

Nevertheless, when the statute of limitations became

acknowledged as the measure of the uncharged sus-

pect’s right to expedite disposition of accusations made

against him, the District of Columbia Circuit Court of

Appeals held, in the circumstances of one case, a pre-

indictment delay of seven months to violate the right

to due process under the Fifth Amendment. Ross v.

United States, 349 F.2d 210 (D.C. Cir. 1965). Due

process reasoning to reach the same result solely be-

cause the unconscionable delay occurs prior t6 indict-

15

ment, however, has been criticized as a misapplication

of ‘‘typical speedy trial criteria.’’ . Note, The Lagging

Right to a Speedy Trial, 51 Va. L.Rev. 1587, at 1616

(1965) ; Note, Effective Guaranty of a Speedy Trial

for Convicts in other Jurisdictions, 77 Yale L.J. 767,

at 783 (1968).

The Bill of Rights imposes restrajnts upon the power —

of the Federal government generally, not merely the

judicial branch. Ex parte Wilson, 114 U.S. 417, at 426

(1885). It is for the Court, therefore, to decide whether

the Sixth Amendment shall encompass pre-indictment

delay within the proteetion of the right to a speedy

trial, and, if so, whether its dimensions coincide in all

cases with the period of limitations prescribed by Con-

gress.* There is, of course, no statute of limitations for

capital crimes, 18 U:S.C., § 3281. Yet persons accused

of capital crimes are certainly entitled to a speedy trial.

Petition of Provoo, 17 F.R.D. 183 as Md. 1955), aff’ d, |

350 U.S. 857 (1955).

It is.during the pre-indictment stage of the criminal

process that both the accused and the Court have the

least control over both. the character of the inquisition

*The statute of limitations on non-capital erimes (18 U.S.C.,

§ 3282) in effect from 1876 (19 Stat. 32) to 1954 was perfunctorily

amended in that year to increase the period from three to five

years by an unrelated amendment to a House of Representatives

bill to deny annuities to government employees convicted of cer-

tain offenses. 1 U.S. Code Cong. & Ad. News 1351, at 1355 (1954).

The House hill_ (H.R. 9909) was amended in the Senate, appar-

ently at the ‘urgent request’ of the Department of Justice for

more time to detect and prosecute corrupt public officials. 100

Cong. Ree. 14781 (1954) (remarks of Sen. Williams). The effect

of the amendment, however, was not confined to crimes of public

officials.

OEE URC OINER Um

IAAT aes ae:

¥

SS ARES REN LATE! SSG I AES PURINE te

F

f

16

and the pace at which it proceeds. The accused has no-

_ right at this stage to know the names of his accusers,

Scher v. United States, 305 U.s. 251 (1938) ; 18 U.S.C.,

§ 3432, or the information reported by them. 18 U.S.C.,

§ 3500. The proceedings before the grand jury occur

entirely without the participation or even the observa-

tion of an aceused. Only attorneys for the Government

are present. Rule 6(d), F.R.Crim.P. And even if the

grand jury indicts, it is ultimately left entirely to the

discretion of the United States Attorney as to who shall

be prosecuted, when, and for what crimes. United

States v. Thompson, 251 U.S. 407 (1920) ; Goldberg v.

Hoffman, 225 F.2d 463 (7th Cir. 1955) ; Newman Vv.

United States, 382 F.2d 479 (D.C. Cir. 1967). The

accused cannot tompel the government to take him into

custody at his convenience, Hoffa v. United States, 385

U.S. 293 (1966), and thus foree the attachment of his

post-arrest rights. Hedgepeth v. United States, 364

F.2d 684 (D.C. Cir. 1966). He may not, even after

indictment, be able to learn what took place during the

period he was ‘‘under investigation,” either as a matter

of right, see United States v. Augenblick, 393 U.S. 348

(1969), or in practice. See United States v. Bryant —

(App. Nos. 23,957 and 24,105, D.C. Cir. decided Janu-

ary 29, 1971). Cf. United States v. Wade, 388 U.S.

‘ 218 (1967). tes

In sum, the period between the complaint of an ac- ©

euser to the prosecuting authorities and the filing of the

- indictment is the interval in which the accused is least

able to hasten the inquiry or affect the result, and the

latitude for official procrastination (and corruptiow)

most extensive. See, generally, Goldstein, Police Dis-

cretion Not to Invoke the Criminal Process: Low Visi-

bility Decisions in the Administration of Justice, 69

7. ‘

Yale LJ. 543 (1960) ; McIntyre and Lippman, Prose-

“cutors and ‘Early Disposition of Felony Cases, 56

A.B.A.J. 1154 (1970).

Scholars have recommended, some states and Fed-.

eral circuits have implemented, and Congress is con-

sidering legislation to establish fixed periods within

which, following arrest or indictment, a defendant must

be put on trial. Note, The Lagging Right to a Speedy

Trial, 51 Va. L.Rev. 1587, at 1620 (1965) ; Second Cir-

cuit Rules Regarding Prompt Disposition of Criminal

Cases (i971); Hedgepeth v. United States, 364 F.2d

684, at 686 (D.C. Cir. 1966) ; Title I, 8.895, The Speedy

Trial Act of 1971. For purposes served by the Sixth

Amendment right to speedy trial, however, such rules

will be utterly vitiated should the Government be al-

lowed. to continue to prepare its cases as it presently

does, clandestinely and at its leisure, during the entire

five-year hiatus of the period of limitations, and, after

indictment, precipitate unprepared defendants to trial

in the sanctified cause of speedy justice.

The Government argues that the word ‘‘accused”’

means one formally ‘‘charged”’ with a crime (Br. 16)— _

-in other words, one who has, in fact, become a defend-

ant. The Sixth Amendment, however, in terms, speaks

of the rights an accused shall enjoy. Holding a pro- |

pinquitous Sixth Amendment eee (to the assistance

of counsel) to attach when ‘‘... the investigation i is no

longer a general inquiry into an unsolved crime but has

begun to focus on a particular suspect. . .”’ , Escobedo

v. Illinois, 378 U.S. 478, at 490-491 (1964) (but see

Stewart, J., dissenting, id., at 493-494), the Court said:

‘Tt would exalt form over s.bstance to make the

right to counsel, under these circumstances, depend

SAPNA RE MB ER Ie ER ey

DEI BMA SLE Si et LD 0 GRATE wn in a gt

Pat Ret EEA cin Gh, SADR ae BMV tA

18

on whether at the time of the interrogation, the

authorities had secured: a formal indictment.”’

Escobedo v. Illinois, 378/458. 478, at 486.

This Court, moreover, has-not limited the concept of a

‘“charge’’ of crime to the indictment or information.

In construing the word as used in the Constitution,

Article IV, Section 2, relating to extradition, the Court

held that the word ‘‘charge’’ was used “‘, . . in its broad

signification ...”” _ . 7

‘‘T A] party is charged with crime when an affidavit

is filed, alleging the commission of the offense, and

a warrant is issued for his arrest; and this is true

whether a final trial may or may not be had upon

such charge. It may be, and is, true, that in many

of the states some further proceeding is, in the

higher grade of offenses at least, necessary before

‘the party can be put upon trial...’ In re

Strauss, 197 U.S. 324, at 331 (1905). |

The spectrum of the possible points at which a crimi-

nal prosecution can be said to have ‘“‘commenced”’ is

virtually infinite. Quantitatively, it may begin with the

commission of an offense in the presence of a police

officer. It may begin with an arrest; or upon the com-

-plaint of a victim or a witness, or the report of an in-

formant to the authorities; or upon the filing of a com-

plaint or the issuance of a warrant. It may take incep-

tion from an administrative investigation. Qualita-

tively, it can be thought to begin when a ‘general in-

quiry’’ begins to ‘‘focus on a particular suspect;”’ or

when probable cause exists to arrest or to indict; or

when the authorities are reasonably certain they have

the evidence to convict. ‘The only factor common to all

is the need to proceed with orderly dispatch to a conclu-

- gion once begun. |

SECT Se a

19

For the reason that neither quantitative nor qualita-

tive criteria will suffice in all cases, therefore, the right

to a speedy trial should attach when the Government

knows, or ought with reasonable diligence to know, a

crime has been committed by the one who is ultimately

brought to trial. And, of course, only orderly expedi-

tion should be required throughout at all stages, con-

sistent with the legitimate interest of the Government

in completing its investigation, preparing its case, and

exercising its executive discretion whether to proceed

to trial, but consistent also with the interest of the ac-

cused in preparing his defense and in knowing his fate

as promptly as possible, and consistent with the inter-

est of society in the efficient administration of criminal

justice.

e

The Government argues that, if pre-indictment delay

is to be taken into account in determining whether Con-

stitutional rights—either speedy trial or due process—

_ have been violated, then either the delay must be shown

to have been ‘‘purposeful or oppressive”’ or the accused

must show ‘‘actual’’ prejudice in making his defense.

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

which the phrase ‘‘purposeful or oppressive”’ first ap- .

peared, id. at 361, did not hold a delay in proceedings |

of whatever magnitude of no consequence if occurring

‘‘accidentally”’ rather than “‘purposefully or oppres-

sively.”’ It held merely that delayed reimposition of

sentence, necessitated by the technical invalidity of the

original and timely sentencing, did not, in the cireum-

stances of the case, violate the right to a speedy trial.

Moreover, four justices dissented from the majority

opinion so holding, and in subsequent cases this Court

has not considered the Government’s motive of sig-

nificance in finding prosecutorial delay to have denied

. RABE AGESS i BASLE 8 IR SACO CARE GMT Eh TN

20

a speedy trial, notwithstanding the absence of proof

that the prosecuting authorities acted ‘‘purposefully”’

or ‘‘oppressively.”’ Klopfer v. North Carolina, 386

U.S. 213 (1967) ; Smith v. Hoocey, 393 U.S. 374 (1969) ;

Dickey v. Florida, 398 U.S. 30 (1970). .As the Court:

has said in another context, ‘‘The principle . .. is not

punishment of society for misdeeds of a prosecutor but

avoidance of an unfair trial to the accused.”” Brady v.

Maryland, 373 U.S. 83, at 87 (1963). Proof that the

(Government’s inaction was actuated by the equivalent

of malice may not only be impossible to acquire, thus

rendering the right unattainable, but the ‘potential for

prejudice is unameliorated whether the delay is vindic-

tive, negligent, or merely inefficient.

As there is no decision of this Court requiring the

victim of a trial delayed to show unlawful motive on the

part of the Government, so there is no decision requir-

ing a showing of “actual’’ prejudice attributable to the

- delay as a conditon to dismissal of stale charges against

him. United States. v. Ewell, 383 U.S. 116 (1966), held —

the right to a speedy trial not violated by reindictment

for the same offense when priér indictments (to which

- guilty pleas had been entered about a year earlier) were

- yoided on technical grounds, in the absence of a show-

ing of prejudice of any“description.

Actual prejudice there is, however, in all excessive

delay, whether or riot demonstrated upon the record.

The essence of the trial process itself is a reconstruction

of past events from present memory, and the phe-

nomenon of the attenuation of human memory over an

interval of months and years is so much ‘a part of uni-

- versal human experience that its formal demonstration

from the witness stand would be superfluous. The en-

tire body of the law of evidence is. devoted ie assuring

; : 7

o .

oh,

Re cont

21

as much accuracy as possible from an essentially unreli-

able faculty. See, generally, Hutchins and Slesinger,

Some Observations on the Law of Evidence—Mem-

ory, 41 Harv. L.Rev. 860 (1928). It is axiomatic

that ‘‘[t]he more recent the experience, the better the

_memory of it.’’ Gardner, The Perception and Memory

of Witnesses, 18 Corn. L. Q. 391, at 392-393 (1933).

Unlike a prosecution.for a single dramatic event such

as a crime of violence, a prosécution for business fraud

alleged to have persisted for a two-year period ‘will be

‘predicated upon evidence the defendant will not be able

to predict or ascertain with any certainty. Until the

Government’s case is disclosed to him, he may not know

which ‘‘specific evidence . . . has actually disappeared

or has been lost, [or] witnesses who are known to have

disappeared.’’ United States v. Ewell, 383 U.S. 116,

at 122 (1966). Moreover, when the potential preju-

- dice inhering in delay in the disposition of criminal

charges is that of his own loss of detailed recollection

of telephone conversations, business conferences and

negotiations, the circumstances surrounding the routine

execution of contract forms, and similar unremarkable

events long past, to impose upon a defendant the burden

of a formal display of his fallible memory in support of

his claim of prejudice is to offer him a Hobson’s choice

in electing to assert his speedy trial right. Since it is

to his advantage to prove the prejudice and secure his

freedom, the defendant’s protestations of an inability

to remember are likely to be given limited credence and

rejected. If so, then for ail practical purposes the

Government’s version of the disputed events will pre-

vail, no matter the defendant’s testimony which is a

priort impeached by his prior disclaimer of memory of

those events, with his very testimony from purported

STRAINERS STEN SORRY MSE OE AOE RN SHE SSD ENN TORPEN IN ERA BORD THEATER IY SR. "AHENRER EN MOEN INCRE EN EON Ne te RL RTT Om SO ee ee

e .

22

memory, however, further rebutting his claim of prejp-

dice.

Academic commentators are, agreed that a showing

of actual prejudice where it exists as a prerequisite to

relief under the speedy trial clause should be discarded.

Note, The Rgght to a Speedy Trial, 20 Stan. L.Rev. 476,

at 493 (1968) ; Note, Constitutional Right to a Speedy

Trial: The Element of Prejudice and the Burden of

Proof, 44 Temp. L.Q. 310, at 316 (1971) ; Note, Cansti-

tutional Limits on Pre-Arrest Delay, 51 Iowa L.Rev.

670 at 678-679 (1966). The potential for prejudice is

sufficiently apparent in the circumstance of delay alone

to allow it to be presumed. See

In the instant case the -indictment, filed: April 21,

1970, charges fraudulent motive and conduct in the

course of appellee’s business activities over a 23-month

period beginning March 1, 1965. Appellee’s entire

business records have been in the ‘Government’s exclu-

sive possession for over two years now at the minimum

and’a possible three years at the maximum. He has not

been in that business for more than four years. There

_is certainly a ‘reasonable possibility’’ that he will not

be able to remember and to testify with clarity about the

allegedly illegal transactions of which he is accused.

And in the District of Columbia no more, at present,

is required. Hedgepeth v. United States, 364 F.2d 684

(D.C. Cir./1966) ; Harling v. United States, 401 F.2d

392 (D.C. Cir. 1968), certiorari denied, 393 U.S. 1086

(1969) ; Hinton v. United States, 424 F.2d 876 (D.C.

Cir. 1969) ; United States v. Holt, (App. No. 23, 928,

D.C. Cir., decided June 28, 197 LSP

al

a

23 ;

| CONCLUSION’/ |

_ For the foregoing reasons, the appeal should be dis-

missed as without the jurisdiction of the Court. Alter-- -

natively, as a matter of the proper scope of review of

7 adiscretionaty ruling of a trial court or upon a proper

interpretation of the Sixth Amendment as applied to

the circumstances of this case, the erder of the District .

Court from which this appeal is taken should be af-

firmed. sg ,

_ Respectfully submitted, .

THOMAS PENFIELD JACKSON

_ Attorney for Appellee

— William R. Marion

July, 1971. . _ _

‘TABLE OF CONTENTS

e

‘ Page

INTEREST OF THE AMICUS CURIAE .......... - 1

STATEMENT OF THE CASE ............. fee eeees 3

SUMMARY OF ARGUMENT ..............-...... 6

J. PRESERVATION OF THE INTEGRITY AND EFFECTIVE-

; NEss- OF THE ADMINISTRATION .OF CRIMINAL JUS-

TICE AND Basic INpivipuAL CONSTITUTIONAL

Ricuts REQUIRES J UDICIAL CONDEMNATION OF Un-

REASONABLE AND UNJUSTIFIED PROSECUTORIAL DE- .

LAYS

Il. PrecLusion or UNREASONABLE AND UNJUSTIFIED

PRE-INDICTMENT ProsEcuToRIAL Detays' BrEst

SERVES THE PURPOSES AND. PROVISIONS OF THE

FirtH ‘AND SixtH AMENDMENTS ...,........... : §

BOM Lhe siete xs Sie cakoa ws there se eears 10

I. PRESERVATION OF THE INTEGRITY AND [H\FFECTIVE-

NESS OF THE ADMINISTRATION OF CRIMINAL JUS-

TICE AND Basic INprivipt AL CONSTITUTIONAL

Ricuts REQUIRES JUDICIAL CONDEMNATION OF UN-°

REASONABLE AND UNJUSTIFIED PROSECUTORIAL DE-

BO ee eee rare Mad ee ee 6 Seer eS wee RR 10

A. This Case Involves Unreasonable and Un-

justified Prosecutorial Delays ......... ines 20

B. Unreasonable and Unjustified Prosecutorial

Delays Have a Malignant Impact Upon the

Integrity and Effectiveness of the Adminis-

tration of Criminal Justice and Basic - In-

dividual Constitutional Rights ............ 12

1. Fhe administration of criminal justice ... 12

a. Common law decisions condemning pre-

indictment delay ...... Peres eucuasase 13

b. Reasons for aversion to delay. even

more forceful today

: Gs ate

e Saes' 2

Table of Contents Continued

Page

. The ability of fhe indiv ‘dual to defend him-

BOIL Gt Sy C01) 2 coos ee et ese eee nws nc

3. Invasion of other individual rights ......

II. PrecLusion or UNREASONABLE AND UNJUSTIFIED

PRE-INDICTMENT PROSECUTORIAL DELAYS’ BEST

SERVES THE. PURPOSES AND PROVISIONS OF THE.

Firru AND SixtH AMENDMENTS

A.

B.

The Concept of Fair Trial Reflected in Both

the Due Process and Speedy Trial Clauses

Requires Dismissal of Indictments Brought ~

by the Government After Unreasonable and:

Unjmstined DClWys 1451¢6945¢05<s42 4 seve ues

1. Such dismissal should be required as a

matter of absolute Constitutional right,

without imposing upon the individual any

. burden of showing actual prejudice ......

bo

Assuming that some showing of actual

prejudice is. required, however, under the

circumstances’ of this ease Appellees’

showing of likely actual prejudice amply -

supports dismissal of the indictment .....

3. The statutes of limitations are irrelevant

to Constitutional considerations .........

The Purposes and Provisions of the Fifth:

Amendment ‘Duc: Process Clause Are Best

Served by Preclusion of Unreasonable and

Unjustified Pre- Indictment Prosecutorial Pe

TAVS 404 6500s paeen dag eee ue ewes ners eeees es

The Purposes and Provisions of the Sixth

Amendment Speedy Trial Clause Are Best

Served by Preclusion of Unreasonable and .

Unjustified Pre-Indictment Prosecutorial De-

CLAVE ix ena pda cgeeeds ect denkee een dean tees

1. The context and structure of the Sixth

Amendment demonstrate the — special

status of each of the rights apceiee

THETOUL. fpascecasdscysordesars soe es aes

93

23

26

— 28

30

Table of Contents Continued ill

Page

a. That certain elements of fair trial and

due process were specified in the Sixth

Amendment signifies their special status 30

b. The text of the Sixth Amendment dem-

onstrates the equal standing of ‘each of

' the enumerated rights in relation to the. -

others ........... SaaG ee eees eeu ceeans 31.

2. The Sixth Amendment Rights Apply When

the Government Has Focused on the Ac-

cused; and Surely for Speedy Trial Pyr-

poses When the Government Has Reason-

able Knowledge of the Facts It Asserts

as Criminal Violation .................. 33

3. The Historical Context of the Speedy Trial

Clause Affirms Its Applicability in the

. Pre-Indictment Period .:......... tseee< GO

CONCLUSION ......... eceees oye ee eeeeensee ees . 38°

TABLE OF AUTHORITIES

CAsEs: —_

Acree v. United States, 418 F.2d 427 (10th Cir. 1969) 38

Allied ‘Enterprises, Inc., CCH Trade Reg. Rep.

"7 17,787, 17,849 (1965-1967 Transfer Binder) .... 4

Ballard v. United States, 329 U.S. 187 (1946) ........ 24

Benson v. United ‘States, 402 F.2d 576 (9th Cir. 1968) 37

Brady v. Maryland, 373 U.S. 83 (1963) .......... wees oe

Dickey v. Florida, 398 U.S: 30 (1970) ........... 12, 33, 37

Dunean v. Louisiana, 391 U.S. 145 (1968) ............ 32

Escobedo v. Tlinois, 378 U.S. 478 (1964) ......... 10, 33-34

Estes v. Texas, 381 U.S. 532 (1965) .......0.......... 25

Gideon v. Wainwright, 372 U.S. 335 (1963) .......... 32

Glasser v. United States, 315 U.S. 60 (1942) ......... 24

Hoffa v. United States,,385 U.S. 293 (1966) .......... 34

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

W909) gnvadepeeed nseeveee ee loss oe anseewecn ands 37

jy EES

iv Table of Contents Continued ©

: Page

In Re Oliver, 333 U.S. 257 (1948) . ehuaehes eedoeen 31-32, 37:

In Re Winship, 397 U.S. 358 (1970) ifGeeueacesee 12. 16

Johnson v. Zerbst, 304 U.S. 458 (1938) ........... we. 82

Jones v. Superior Court of Los Angeles County, 3-

Cal.3d 734, 91 Cal. Rptr. 578 (1971) ............ 38

‘Klopfer v. North Car olina, 386 U.S. 213 (1967)

13-14, 23, 25, 32-33

Kroll v. United States, 483 F:2d 1282 (5th Cir. 1970),

cert. denied, 402 U.S. 944 (1971) ................ 37

Lueas v. United States, 363 F.2d 500 (9th Cir. 1966) .. 38

Mann v. United States, 304 F.2d 394 (D.C. Cir. 1962):. 38

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

1963), cert. denied, 379. U.S. 905 (1964). ......... 15, 37

- Petition of Provoo, 17 F.R.D. 183 (D. Md. 1955),

aff'd sub nom. United States v. Provoo, 350 U.S.

Bal (1900) peeve ered vce pe ee es heen deseas- es 29, 34, 38

Pointer v. Texas, 380 U.S. 400 (1965) .........-.... ol,ae

Regina v. Hext, 4 Jurist 339 (1840) ........ naeaeens . °14

- Regina v. Robins, 1 Cox’s C.C. 114 (Somerset Winter

, Assizes, 1844) ..... 0... cee eee ee eee 7, 14-15, 19-20

Rex v. Marshal and Grantham, 13 Kast 322, 104 Eng.

HOD. Boe CISL) «bao tos ches Hone hsreraesneeeee ue 14

Rex v. Robinson, 1 Black. W. 541, 96 Eng. Rep. 313

(VIGO) secce senna rtwee coveeexeuessseneeyeaeees 14

Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965) . .26, 30

Sanchez v. United States, 341 F.2d 225 (9th Cir. 1965),

cert. denied, 382 U.S. 856 (1965) 2........0..08.0. 38

Schlinsky v. United States, 379 F.2d 735 (1st Cir. 1967) 38 . .

Sheppard v. Maxwell,.384 U.S. 333 (1966) ........... 25

Smith v. Hooey, 393 U.S. 374 (1969) .......... 18-19, 22, 23

Terlikowski v. United States, 379 F. 2d 501 (8th Cir.’

M9GT) gece coaches seers byaneesne tees eeeseses 37

United States v. Casias, 306 F. Supp. 166 (D.Colo.

TOGO) opto ederess shee once ean te heuueesseeuee¥s 34

United States v. Dickerson, 347 F.2d 783 (2d Cir. 1965) 38

United States -v. Dickerson, 413 F.2d 1111 (7th Cir.

4969) ooo a 5 bee dk be ee ere een see eudeeet aes sees 34, 38

United States v. Ewell, 383 U.S. 116 (1966) ... .18-19, 22-23

_ Table of Contents Continued - Vv

Page

United States v. Feinberg, 383 F.2d 60 (2d Cir, 1967) .. 38

United States v. Harbin, 377: F.2d 78 (4th Cir. 1967) .. 38

United States v. Hunter Pharmacy, Inc., 213 F. Supp.

323 (S.D.N.Y. 1963) 200.0 elec e eee eee . 388.

United States v. Jaskiewicz, 433 F.2d 415 (3rd Cir.

1970), cert. denied, 400 U.S. 1021 (1971) ......... 34

United States v. Kojima, 3 Hawaii Fed. 381 (1909) .’. 688

United States v. Miller, 259 F. Supp. 294° (E.D.Pr;

> BVOC) ogee cece oo ede c sb awanvedecencincci. 38

United States v. Panezo, 367 F.2d 737 (7th Cir. 1966) .. 37

United States. vy. Parrott, 248 F. Supp. 196 (D.D.C.

1965) occ ccc cet w cece ii ne eee wees esas 38

United’ States v. Reed, 413 F.2d 338 (10th Cir. 1969),

cert. denied sub nom, Sartain v. United: States,:397

US. 954 (1970) 22.00.02... erro eeees ‘ee oO

cert, denied, 380 U.S. 983 (1965) ..... $0 Mea es oc 38

United States v. Turzynski, 268 F. Supp. 847’ (N.D.11.

ty @ a paeeees getuneg ves 34 -

United States v. Wahrer, 319 F. Supp. 585 (D.Alaska —

LL) a Terr r ee TT errr eee - 38

United States v. Wainwright, 284 F. Supp. 129 (D.Colo.

EDOE). Gasnerauetxgseengecs sche es Jowwaseahe pes 4.

Witherspoon v. Tlinois, 391 U.S. 510 (1968) ........ 24, 32

Washington v. Texas, 388 U.S. 14 (1961) en vesce uss . 82

STATUTES AND RULES:

Rule 42, Rules of the Supreme Court of the United

States ........ er eee Peo ee oe ease ~eewa ei 1

Rule 16, Federal Rules of-Criminal Procedure ....... 21

Second Gireuit Rules Regarding Prompt Disposition of

Criminal Cases (1971) ........ pasuwaes «aes 4404's 16

The Habeas Corpus Act of 1679,°31 Charles II, e.2.. 36

15 U.S.C. §45 2.0... 2. auuesr eee Teuseeeeyenass 4