Appellees were indicted on December 14, 1962, under 26 U.S.C. §
4705(a) for selling narcotics without the requisite form. They
pleaded guilty, and were sentenced to the minimum statutory terms,
one for five years and the other, as a second offender, for ten
years. On July 17, 1963, the Seventh Circuit, in an unrelated case,
held that an indictment under § 4705(a) that does not allege the
purchaser's name is defective and may be set aside. Appellees'
motions to vacate their convictions were filed on November 6, 1963,
and January 28, 1964, and were granted by the District Court on
January 13 and April 13, 1964, respectively. They were immediately
rearrested on new complaints and reindicted on March 26 and June
15, 1964. The indictments, charging the same sales originally
alleged but naming the purchasers, contained three counts, charging
violations of 26 U.S.C. § 4705(a), 26 U.S.C. §4704 (a) and 21
U.S.C. §174. On July 13 and July 30, 1964, the District Court
granted appellees' motions to dismiss the indictments on the ground
that they had been denied their Sixth Amendment rights to a speedy
trial, while rejecting their double jeopardy argument. In its
petition for rehearing, the Government advised that, upon a plea or
finding of guilty, all counts except that under § 4704(a) would be
dismissed against the second offender appellee, in which case the
minimum statutory sentence would be five years, rather than the ten
years under § 4705(a). The request for rehearing was denied, and
the Government appealed to this Court, limiting the appeal to that
portion of the District Court's orders dismissing the count of the
indictments charging violations of § 4704(a).
Held:
1. The mere passage of 19 months between the original arrests
and the hearings on the later indictments is not
ipso
facto a violation of the Sixth Amendment's guarantee of a
speedy trial. Pp.
383 U. S.
120-121.
(a) The right to a speedy trial depends upon all the
circumstances of the case, including the effect upon the rights of
the accused and the rights of society. P.
383 U. S.
120.
Page 383 U. S. 117
(b) Since the only important interval of time occurred as a
result of the Seventh Circuit's decision in an unrelated case, the
substantial interval between the original and subsequent
indictments does not, of itself, violate the Sixth Amendment's
guarantee. Pp.
383 U. S.
120-121.
(c) When a defendant obtains a reversal of a prior, unsatisfied
conviction, he may be retried in the normal course of events.
United States v. Ball, 163 U. S. 662;
United States v. Tateo, 377 U. S. 463. P.
383 U. S.
121.
2. That the Government is proceeding under § 4704, rather than §
4705, does not render the delay prejudicial and oppressive. Pp.
383 U. S.
121-123.
(a) The new indictments were brought within the statute of
limitations applicable to § 4704. P.
383 U. S.
122.
(b) Appellees' claim of possible prejudice in defending
themselves is insubstantial, speculative and premature. They
mention no evidence that has been lost or witnesses who have
disappeared. Pp.
383 U. S.
122-123.
(c) The Government seeks to sustain the § 4704 charges, with the
lesser minimum sentences, not to oppress, but to give the trial
judge, if appellees are again convicted, the opportunity to take
into account the time appellees have already spent in prison. P.
383 U. S.
123.
3. Appellees' invocation of the Double Jeopardy Clause was
properly rejected by the trial court. If the present indictments
charge the same offense as the § 4705 offense for which appellees
were previously convicted, they may, after their convictions have
been vacated on their own motions, be retried under either § 4705
or §4704; if the two offenses are not the same, then the Double
Jeopardy Clause, by its terms, does not prevent prosecution under
§4704. Pp.
383 U. S.
124-125.
242 F. Supp. 166, 451, reversed and remanded.
Page 383 U. S. 118
MR. JUSTICE WHITE delivered the opinion of the Court.
Appellees Clarence Ewell and Ronald Dennis were indicted on
December 14, 1962, for selling narcotics without the order form
required by 26 U.S.C. § 4705(a) (1964 ed.). [
Footnote 1] The indictments, each alleging a
single sale, did not name the purchasers. After pleas of guilty on
December 18 and December 19, they were sentenced to the minimum
terms of imprisonment permitted by the statute, Dennis for five
years and Ewell, as a second offender, for ten years. [
Footnote 2] On July 17, 1963, the Court
of Appeals for the Seventh Circuit, in an unrelated case, held that
a § 4705(a) indictment that does not allege the name of the
purchaser is defective, and may be set aside under 28 U.S.C. § 2255
(1964 ed.).
Lauer v. United States, 320 F.2d 187.
[
Footnote 3] Ewell's motion of
November 6, 1963, to vacate his conviction, and Dennis, similar
motion of January 28, 1964, were granted by the District Court on
January 13 and April 13, 1964, respectively. Appellees were
immediately rearrested on new complaints
Page 383 U. S. 119
and reindicted, Ewell on March 26 and Dennis on June 15, 1964.
These indictments, charging the same sales alleged in the original
indictments, but this time naming the purchasers, contained three
counts: Count I charged violations of 26 U.S.C. § 4705(a); Count II
charged sales not in or from the original stamped packages in
violation of 26 U.S.C. § 4704(a) (1964 ed.); [
Footnote 4] Count III charged dealing in illegally
imported narcotics in violation of 21 U.S.C. § 174 (1964 ed.).
On July 13 and July 30, 1964, respectively, the United States
District Court for the Southern District of Indiana granted the
motions of Ewell and Dennis to dismiss the indictments against them
on the ground that they had been denied their Sixth Amendment
rights to a speedy trial, while rejecting their other contention
that they were also being placed in double jeopardy. In its
petition for rehearing on the dismissal of the indictment against
Ewell, the Government advised the court that, upon a plea or
finding of guilty, all counts except that under 26 U.S.C. § 4704(a)
would be dismissed against him, leaving a conviction upon which the
minimum sentence would be only five years for a second offender,
[
Footnote 5] in contrast to the
minimum 10-year sentence which Ewell had previously received under
§ 4705(a). The court denied the request for rehearing, and the
Government then appealed directly to this Court from the dismissal
of the indictments against Ewell and Dennis. 18 U.S.C. § 3731 (1964
ed.). The Government has limited its appeal to that portion of the
order of the District Court in each
Page 383 U. S. 120
case that dismissed the second count of each indictment,
charging a violation of 26 U.S.C. § 4704(a). We noted probable
jurisdiction. 381 U.S. 909. We reverse.
We cannot agree that the passage of 19 months between the
original arrests and the hearings on the later indictments itself
demonstrates a violation of the Sixth Amendment's guarantee of a
speedy trial. [
Footnote 6] This
guarantee is an important safeguard to prevent undue and oppressive
incarceration prior to trial, to minimize anxiety and concern
accompanying public accusation, and to limit the possibilities that
long delay will impair the ability of an accused to defend himself.
However, in large measure because of the many procedural safeguards
provided an accused, the ordinary procedures for criminal
prosecution are designed to move at a deliberate pace. A
requirement of unreasonable speed would have a deleterious effect
both upon the rights of the accused and upon the ability of society
to protect itself. Therefore, this Court has consistently been of
the view that
"The right of a speedy trial is necessarily relative. It is
consistent with delays and depends upon circumstances. It secures
rights to a defendant. It does not preclude the rights of public
justice."
Beavers v. Haubert, 198 U. S. 77,
198 U. S.
87.
"Whether delay in completing a prosecution . . . amounts to an
unconstitutional deprivation of rights depends upon the
circumstances. . . . The delay must not be purposeful or
oppressive,"
Pollard v. United States, 352 U.
S. 354,
352 U. S. 361.
"[T]he essential ingredient is orderly expedition, and not mere
speed."
Smith v. United States, 360 U. S.
1,
360 U. S. 10.
In this case, appellees were promptly indicted and convicted
after their arrests in 1962, and were immediately arrested and
reindicted in due course after their § 2255
Page 383 U. S. 121
motions were granted in 1964. Moreover, it was the decision in
Lauer v. United States, supra, and the subsequent vacation
of appellees' prior convictions that precipitated the later
indictments. In these circumstances, the substantial interval
between the original and subsequent indictments does not, in
itself, violate the speedy trial provision of the Constitution.
It has long been the rule that, when a defendant obtains a
reversal of a prior, unsatisfied conviction, he may be retried in
the normal course of events.
United States v. Ball,
163 U. S. 662,
671-672;
United States v. Tateo, 377 U.
S. 463,
377 U. S. 465,
377 U. S.
473-474. The rule of these cases, which dealt with the
Double Jeopardy Clause, has been thought wise because it protects
the societal interest in trying people accused of crime, rather
than granting them immunization because of legal error at a
previous trial, and because it enhances the probability that
appellate courts will be vigilant to strike down previous
convictions that are tainted with reversible error.
United
States v. Tateo, supra, at
377 U. S. 466.
These policies, so carefully preserved in this Court's
interpretation of the Double Jeopardy Clause, would be seriously
undercut by the interpretation given the Speedy Trial Clause by the
court below. Indeed, such an interpretation would place a premium
upon collateral, rather than upon direct, attack, because of the
greater possibility that immunization might attach.
Appellees themselves concede that
Ball and
Tateo are ample authority for retrial on charges under §
4705, despite their Sixth Amendment contentions. [
Footnote 7] But they
Page 383 U. S. 122
urge us to prohibit prosecution in their cases because the
Government is proceeding under § 4704, rather than § 4705, and
because the passage of time has allegedly impaired their ability to
defend themselves on this new and different charge, thereby
rendering the delay prejudicial and oppressive.
We note, first, however, that the new indictments charging
violations of § 4704 were brought well within the applicable
statute of limitations, which is usually considered the primary
guarantee against bringing overly stale criminal charges. Surely
appellees could claim no automatic violation of their rights to a
speedy trial if there had been no charges or convictions in 1962,
but only the § 4704 indictment in 1964. In comparison with that
situation, the indictments and convictions of 1962 might well have
enhanced appellees' ability to defend themselves, for they were, at
the very least, put on early notice that the Government intended to
prosecute them for the specific sales with which they were then and
are now charged.
Second, the appellees' claim of possible prejudice in defending
themselves is insubstantial, speculative, and premature. They
mention no specific evidence which has actually disappeared or has
been lost, no witnesses who are known to have disappeared. Although
the present charges allege sales not in or from the original
stamped packages, under § 4704, rather than sales without the
purchaser's written order form, under § 4705, the charges are based
on the same sales as were involved in the previous indictments. In
this respect, it should be recalled that the problem of delay is
the Government's
Page 383 U. S. 123
too, for it still carries the burden of proving the charges
beyond a reasonable doubt.
Third, the new indictments occurred only after the vacation of
the previous convictions, and the Government now seeks to sustain
the § 4704 charges, which carry lesser minimum sentences than the
charges under § 4705(a), not to oppress, but to extend to the trial
judge, if these appellees are again convicted, the clear
opportunity to take due account of the time both Ewell and Dennis
have already spent in prison. We find no oppressive or culpable
governmental conduct inhering in these facts.
The District Court apparently considered retrial and
reconviction to be oppressive because appellees had already spent
substantial time in prison and because, in its view, the law would
not permit time already served to be credited against the sentences
which might be imposed upon reconviction. This, too, is a premature
concern. The appellees have not yet been convicted on the second
indictments, and, if they were to be reconvicted on § 4705 or §
4704 counts, it should not be assumed that the controlling statute
would prevent a credit for time already served. However that may
be, as matters now stand, the remaining charges the Government
seeks to sustain are under § 4704, which carries a minimum sentence
in the case of Ewell of five years, as compared with a minimum of
10 years under § 4705, and two years instead of five years in the
case of Dennis. In these circumstances, there is every reason to
expect the sentencing judge to take the invalid incarcerations into
account in fashioning new sentences if appellees are again
convicted. [
Footnote 8]
Page 383 U. S. 124
Appellees also invoke the Double Jeopardy Clause to sustain the
dismissal of the indictments, a ground which we think the trial
court correctly rejected. The Fifth Amendment provides that no
person shall "be subject for the same offence to be twice put in
jeopardy of life or limb." That clause, designed to prohibit double
jeopardy as well as double punishment, is not properly invoked to
bar a second prosecution unless the "same offence" is involved in
both the first and the second trials. The identity of offenses is,
therefore, a recurring issue in double jeopardy cases, but one
which we need not face in this case. Here, the Government is not
attempting to prosecute a defendant for an allegedly different
offense in the face of an acquittal or an unreversed conviction for
another offense arising out of the same transaction.
See Abbate
v. United States, 359 U. S. 187,
359 U. S. 196,
separate opinion of Mr. Justice Brennan. Nor is there any question
here of the Government's joining in one indictment more than one
count allegedly charging the same crime.
Compare Blockburger v.
United States, 284 U. S. 299.
Here, the Government seeks only to sustain one charge under § 4704.
If the present indictments charge the same offense as the § 4705
offense for which appellees were previously convicted, they may
clearly be retried on either § 4705 or § 4704 after their
convictions have been vacated on their own motions. In these
circumstances, where the appellees are subject to a second trial
under
Page 383 U. S. 125
Ball and
Tateo, the fact that § 4704, rather
than § 4705, is charged does not in any manner expand the number of
trials that may be brought against them. If the two offenses are
not, however, the same, then the Double Jeopardy Clause, by its own
terms, does not prevent the current prosecution under § 4704.
[
Footnote 9]
Reversed and remanded.
[
Footnote 1]
"It shall be unlawful for any person to sell, barter, exchange,
or give away narcotic drugs except in pursuance of a written order
of the person to whom such article is sold, bartered, exchanged, or
given, on a form to be issued in blank for that purpose by the
Secretary or his delegate."
26 U.S.C. § 4705(a).
[
Footnote 2]
"Whoever commits an offense . . . described in section 4705(a) .
. . shall be imprisoned not less than 5 or more than 20 years and,
in addition, may be fined not more than $20,000. For a second or
subsequent offense, the offender shall be imprisoned not less than
10 or more than 40 years and, in addition, may be fined not more
than $20,000."
26 U.S.C. § 7237(b) (1964 ed.).
[
Footnote 3]
That circuit has since overruled its
Lauer decision.
Collins v. Markley, 346 F.2d 230 (en banc).
[
Footnote 4]
"It shall be unlawful for any person to purchase, sell,
dispense, or distribute narcotic drugs except in the original
stamped package or from the original stamped package; and the
absence of appropriate tax-paid stamps from narcotic drugs shall be
prima facie evidence of a violation of this subsection by the
person in whose possession the same may be found."
26 U.S.C. § 4704(a).
[
Footnote 5]
26 U.S.C. § 7237(a) (1964 ed.).
[
Footnote 6]
"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial. . . ." U.S.Const., Amendment VI.
[
Footnote 7]
In
Tateo, the defendant had spent almost seven years in
prison under a conviction that ultimately was overturned upon a
collateral attack; yet, when this Court remanded for a new trial,
there was no suggestion that his right to a speedy trial was being
denied him.
See also Bayless v. United States, 147 F.2d
169, where it was held that it does not violate the Speedy Trial
Clause to retry a defendant who had been incarcerated for five
years under a conviction that had been subsequently
invalidated.
[
Footnote 8]
We likewise reject appellees' argument that the dismissal of
their indictments on § 4704 can be sustained on the basis that they
were denied their Sixth Amendment rights "to the informed of the
nature and cause of the accusation. . . ." Appellees did not
present this ground for granting their motion in the trial court,
and, as we read his opinion, the trial judge did not base his
ruling on that ground. In any event, the claim is not that the
second indictments did not carry adequate notice of the charges,
which they obviously did, but that the notice came much too late, a
contention which we have already disposed of.
[
Footnote 9]
This situation is to be distinguished from
Green v. United
States, 355 U. S. 184,
where the defendant was indicted upon a charge of first-degree
murder and was ultimately convicted of second-degree murder. Upon
his successful appeal of that conviction, the Government attempted
to reprosecute him for first-degree murder. This Court held that
the Double Jeopardy Clause prevented that prosecution on the
alternative grounds either that the jury had returned an implied
verdict of acquittal on the first-degree murder charge or that the
jury was dismissed, without the defendant's consent, and after he
had been placed in jeopardy on the charge of first-degree murder,
without returning any express verdict on that charge. Neither of
these grounds is applicable here, because the sole charge in the
first indictment was on § 4705.
This situation should also be distinguished from that presented
in
Ciucci v, Illinois, 356 U. S. 571, and
Hoag v. New Jersey, 356 U. S. 464.
Those cases involved only the question whether the Fourteenth
Amendment prevents a State from bringing successive prosecutions
against a defendant where each prosecution alleges the same
statutory offense and the same general transaction by the
defendant, but names different victims.
MR. JUSTICE BRENNAN, concurring in the result.
I am unable to join the Court's opinion, because it could be
read as implying approval of a course of government conduct that I
find most oppressive. Appellees were indicted initially under only
one of the three statutes which this Court held in
Gore v.
United States, 357 U. S. 386,
over my dissent, might constitutionally be applied to a single
narcotics sale. Their successful attacks
Page 383 U. S. 126
upon their sentences brought on these new indictments for all
three statutory offenses. I can think of no plausible reasons for
this tactic except to increase the pressure on appellees to plead
guilty by raising the threat of cumulative sentences, or to punish
them for asserting their rights to challenge their original
sentences. The Government offered to abandon this tactic and limit
prosecution to 26 U.S.C. § 4704 (1964 ed.) only on rehearing, after
the prosecution seemed imperiled.
Government tactics of this kind raise very serious questions for
me.
Cf. Green v. United States, 355 U.
S. 184;
Abbate v. United States, 359 U.
S. 187,
359 U. S.
196-201 (separate opinion); Van Alstyne, In
Gideon's Wake: Harsher Penalties and the "Successful"
Criminal Appellant, 74 Yale L.J. 606 (1965). But I agree with the
Court that, because the prosecution is now limited to § 4704,
appellees have suffered no prejudice. I would not, however, as the
Court seems to do, imply approval of the tactics the Government
employed. Indeed, the Government informed us after argument that
this problem is involved in another case, pending below, where an
accused initially indicted for only one offense has been reindicted
for three. It does not appear that the Government has limited the
prosecution in that case to § 4704.
MR. JUSTICE FORTAS, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
I cannot agree that the District Court erred in dismissing the
second indictment. Following vacation of the convictions under the
original indictment, the Government was at liberty to reindict and
retry appellees for the same offense. [
Footnote 2/1] I agree with the opinion of the Court
Page 383 U. S. 127
the circumstances, this would not have deprived appellees of
their Sixth Amendment right to a speedy trial.
But the Government did not merely reindict appellees for the
identical offense. They were charged, on the basis of the same
alleged sale of 400 milligrams of heroin, with violations of two
additional narcotics statutes. Under the original one-count
indictment charging a violation of 26 U.S.C. § 4705(a) (1964 ed.),
Dennis faced a sentence of from five to 20 years; Ewell, a second
offender, 10 to 40 years. Under the new three-count indictment, the
District Court may cumulate the sentences on the three counts and
impose terms of from 12 to 50 years upon Dennis and from 25 to 100
years upon Ewell. Cumulative sentences are permitted by this
Court's holding in
Gore v. United States, 357 U.
S. 386.
But cf. Comment, Twice in Jeopardy, 75
Yale L.J. 262, 299-317 (1965). In my opinion, however, the
Government may not, following vacation of a conviction, reindict a
defendant for additional offenses arising out of the same
transaction but not charged in the original indictment.
In a different setting, this Court has vividly criticized the
Government's attempt to penalize a successful appellant by retrying
him on an aggravated basis.
Green v. United States,
355 U. S. 184.
Although the decision in green was premised upon the Double
Jeopardy Clause, [
Footnote 2/2] its
teaching has another dimension.
Green also demonstrates
this Court's concern to protect the right of appeal
Page 383 U. S. 128
in criminal cases. [
Footnote
2/3] It teaches that the Government, in its role as prosecutor,
may not attach to the exercise of the right to appeal the penalty
that, if the appellant succeeds, he may be retried on another and
more serious charge. MR. JUSTICE BLACK, speaking for the Court in
Green, said: "The law should not, and in our judgment does
not, place the defendant in such an incredible dilemma." 355 U.S.
at
355 U. S. 193.
[
Footnote 2/4]
In the present case, it appears that the purpose, as well as the
effect, of the Government's action was to discourage the exercise
of the right, conferred by statute, to seek review of criminal
convictions. According to the District Court, the only reason
advanced by the Government for the multiplication of charges
against appellees was that the prosecutor wanted to discourage
others convicted of narcotics offenses from attacking their
convictions. As the District Judge put it, there was "the expressed
concern of the prospective liberation of a number of similarly
convicted narcotic felons." [
Footnote
2/5] 242 F.Supp.
Page 383 U. S. 129
451 at 456. The prosecutor's concern is understandable, but the
right to direct and collateral review is granted by law. The
prosecutor may not, consistently with the Due Process Clause,
boobytrap this right, either to punish or to frighten.
It is no answer to the foregoing that, after -- and only after
-- the District Court had dismissed the entire three-count
indictment, the Government, in support of its petition for
rehearing, advised the court that, "upon a plea or finding of
guilty," all counts except that under 26 U.S.C. § 4704(a) (1964
ed.) would be dismissed. This belated offer, conditioned upon a
conviction, did not absolve the Government. The Government
continued to insist upon going to trial on an unsupportable
indictment. Even in its Notice of Appeal to this Court, the
Government asserted its right to try the appellees upon the entire
"present indictment." Not until the Solicitor General filed the
jurisdiction statement was it suggested that the Government would
agree to action taken to dismiss two of the counts -- and that
suggestion was negatively phrased: the Government "would not
question dismissal" of the counts alleging violation of § 4705(a)
and 21 U.S.C. § 174 (1964 ed.). I cannot agree that this backhanded
concession warrants our reversing the District Court's dismissal of
the three-count indictment. The indictment is the Government's
responsibility. It must stand the test of lawfulness as the
Government presents it. The Government cannot rest upon a faulty
indictment, and defend it by indicating its willingness to
acquiesce in surgery which it is apparently unready to
initiate.
In my view, this reindictment, greatly exceeding the original
indictment in its charges and threatened penalties, was not a
lawful basis upon which to put appellees to their defense. Apart
from considerations of the impermissible purpose as found by the
District Court, this
Page 383 U. S. 130
technique has the necessary effect of unlawfully burdening and
penalizing the exercise of the right to seek review of a criminal
conviction under federal law. This, in my opinion, is forbidden by
the Due Process Clause. I would affirm the decision of the District
Court, without prejudice, if other factors permit, to reindictment
within the limits of the original charge.
[
Footnote 2/1]
United States v. Tateo, 377 U.
S. 463;
United States v. Ball, 163 U.
S. 662; Note, Double Jeopardy: The Reprosecution
Problem, 77 Harv.L.Rev. 1272, 1283-1285 (1964).
[
Footnote 2/2]
In
Green, the Court held that the Double Jeopardy
Clause required reversal of a federal conviction for first-degree
murder where, in a former trial on that charge, the defendant was
convicted of the lesser offense of murder in the second degree.
Cf. MR. JUSTICE BRENNAN's separate opinion in
Abbate
v. United States, 359 U. S. 187,
359 U. S.
196-201, discussing the applicability of double jeopardy
principles to successive prosecutions based on the same transaction
but for allegedly different offenses.
[
Footnote 2/3]
Van Alstyne, In
Gideon's Wake: Harsher Penalties and
the "Successful" Criminal Appellant, 74 Yale L.J. 606, 629 (1965);
Note, 77 Harv.L.Rev. at 1287.
See Fay v. Noia,
372 U. S. 391,
372 U. S. 440;
Draper v. Washington, 372 U. S. 487;
Lane v. Brown, 372 U. S. 477;
Douglas v. California, 372 U. S. 353;
Smith v. Bennett, 365 U. S. 708;
Burns v. Ohio, 360 U. S. 252;
Griffin v. Illinois, 351 U. S. 12.
[
Footnote 2/4]
Cf. State v. Wolf, 46 N.J. 301,
216
A.2d 586 (1966);
People v. Henderson, 60 Cal. 2d
482, 497, 35 Cal. Rptr. 77, 386 P.2d 677, 687 (1963).
[
Footnote 2/5]
On the authority of
Lauer v. United States, 320 F.2d
187 (C.A. 7th Cir.), appellees had obtained vacation of their
convictions on the ground that since the indictment did not name
the alleged purchaser of narcotics it failed properly to state an
offense under 26 U.S.C. § 4705(a). The Government has furnished the
Court with information concerning five other individuals whose
convictions were set aside under
Lauer and who were then
subjected to reprosecution under multiple-count indictments.
Subsequently,
Lauer was overruled by
Collins v.
Markley, 346 F.2d 230 (C.A.7th Cir.).