Respondents were arrested and indicted in November, 1975, on
counts of possessing firearms and dynamite. In March, 1976, the
Federal District Court granted respondents' motion to suppress
evidence relating to the dynamite counts, and the Government
promptly filed a notice of appeal and requested a continuance. The
District Court denied this request and, when the Government
answered "not ready" after the case was called for trial, dismissed
the indictment. The Government appealed this dismissal, and the two
appeals were consolidated. In August, 1979, the Court of Appeals
reversed the suppression order, ordered that the dynamite counts be
reinstated, and held that the District Court erred in dismissing
the firearms counts. In November, 1979, respondents filed a
petition for certiorari, which this Court denied. The Court of
Appeals' mandate issued in March, 1980, 46 months after the
Government filed its notice of appeal from the dismissal of the
indictment, during which time respondents were unconditionally
released. On remand, the District Court ordered the Government to
reindict on the firearms charges. In August, 1980, the District
Court granted a motion to dismiss on the ground of vindictive
prosecution as to one respondent, but denied it as to the other
respondents, and both the Government and these respondents
appealed. During these appeals, respondents remained free on their
own recognizance. In July, 1982, the Court of Appeals reversed the
dismissal as to the one respondent and dismissed the appeals of the
other respondents, and in October, 1982, denied respondents'
petitions for a rehearing. Respondents then filed a petition for
certiorari, which this Court denied. The Court of Appeals' mandate
issued in January, 1983. In May, 1983, the District Court again
dismissed the indictment, ruling that respondents' Sixth Amendment
right to a speedy trial had been violated. The Court of Appeals
affirmed.
Held:
1. The time during which the indictment was dismissed and
respondents were free of all restrictions on their liberty should
be excluded from the length of delay considered under the Speedy
Trial Clause of the Sixth Amendment.
United States v.
MacDonald, 456 U. S. 1. Pp.
474 U. S.
310-312.
(a) Where no indictment is outstanding, it is only the actual
restraints imposed by arrest and holding to answer a criminal
charge that engages the protection of the Speedy Trial Clause.
Here, respondents
Page 474 U. S. 303
were not incarcerated and were not subject to bail, and further
judicial proceedings would have been necessary to subject them to
any actual restraints. Pp.
474 U. S. 310-311.
(b) The fact that the Government's desire to prosecute
respondents was a matter of public record was insufficient to count
the time in question toward a speedy trial claim. Nor does the fact
that respondents were ordered to appear at the evidentiary hearing
held on remand in the District Court during the first appeal
constitute the sort of "actual restraint" required for application
of the Speedy Trial Clause. And respondents' necessity to obtain
counsel while their case was technically dismissed was not
sufficient to trigger that Clause. Pp.
474 U. S.
311-312.
2. The delay attributable to the interlocutory appeals does not
weigh effectively towards respondents' claim under the Speedy Trial
Clause. Under the balancing test of
Barker v. Wingo,
407 U. S. 514,
courts must accommodate the competing concerns of orderly appellate
review and a speedy trial. Pp.
474 U. S.
312-317.
(a) Three of the factors under
Barker -- the length of
delay, the extent to which respondents have asserted their speedy
trial rights, and the prejudice to respondents -- fail to support a
finding of a violation of the Speedy Trial Clause. Pp.
474 U. S.
314-315.
(b) The remaining
Barker factor, the reason for the
delay, also fails to carry respondents' claims. The Government's
first interlocutory appeal was justified where the Government could
not have otherwise presented the issue relating to exclusion of the
evidence on the dynamite counts, and the Government's appeal on
this issue was strong. Similarly, the Government's second
interlocutory appeal was justified because the Government could not
have otherwise proceeded against the one respondent against whom
the indictment was dismissed, and here too the Government's
position was strong. Pp.
474 U. S.
315-316.
(c) The delay from respondents' interlocutory appeals does not
count toward their speedy trial claims. A defendant bears the heavy
burden of showing an unreasonable delay caused by the prosecution
in that appeal or a wholly unjustified delay by the appellate
court. Pp.
474 U. S.
316-317.
3. On the facts, the delays in question were not sufficiently
long to justify dismissal of the case against respondents because
of an alleged violation of the Speedy Trial Clause. P.
474 U. S.
317.
741 F.2d 1184, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL,
J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and
STEVENS, JJ., joined,
post, p.
474 U. S.
317.
Page 474 U. S. 304
JUSTICE POWELL delivered the opinion of the Court.
In this case we must decide, first, whether the Speedy Trial
Clause of the Sixth Amendment [
Footnote 1] applies to time during which respondents were
neither under indictment nor subjected to any official restraint,
and, second, whether certain delays occasioned by interlocutory
appeals were properly weighed in assessing respondents' right to a
speedy trial. A divided panel of the Court of Appeals for the Ninth
Circuit weighed most of the 90 months from the time of respondents'
arrests and initial indictment in November, 1975, until the
District Court's dismissal of the indictment in May, 1983, towards
respondents' claims under the Speedy Trial Clause. We conclude that
the time that no indictment was outstanding against respondents
should not weigh towards respondents' speedy trial claims. We also
find that, in this case, the delay attributable to interlocutory
appeals by the Government and respondents does not establish a
violation of the Speedy Trial
Page 474 U. S. 305
Clause. Accordingly we reverse the holding of the Court of
Appeals that respondents were denied their right to a speedy
trial.
I
In view of the nature of respondents' claim, we state the
factual and procedural history of this case in some detail. On
November 14, 1975, pursuant to a tip from the Federal Bureau of
Investigation, Oregon state troopers stopped two vehicles in search
of several federal fugitives. [
Footnote 2] After an exchange of gunfire and a motor
chase, state troopers captured all but one of the respondents,
Dennis Banks. [
Footnote 3] Both
vehicles were locked and impounded while federal and state
authorities obtained search warrants.
Searches of the vehicles over the next two days disclosed 350
pounds of dynamite, [
Footnote
4] 6 partially assembled time bombs,
Page 474 U. S. 306
2,600 rounds of ammunition, 150 blasting caps, 9 empty hand
grenades, and miscellaneous firearms. [
Footnote 5] Oregon law enforcement officers, apparently
unaware of the evidentiary consequences, adhered to their usual
policy and destroyed the dynamite. A federal agent present at the
destruction photographed the explosions.
United States v. Loud
Hawk, 628 F.2d 1139, 1142 (CA9 1979). State officials also
preserved wrappers from the dynamite casings.
A federal grand jury indicted respondents on November 25, 1975,
on charges of possessing firearms and explosives. Trial in the
United States District Court for the District of Oregon was set for
the week of February 9, 1976. On December 22, 1975, a grand jury
returned a five-count superseding indictment. This indictment
charged all respondents with three counts relating to possession
and transportation in commerce of an unregistered destructive
device (the dynamite counts) and two counts relating to unlawful
possession of firearms (the firearms counts).
Two days later, respondents filed a motion to suppress all
evidence concerning the dynamite, arguing that federal and state
officials had intentionally and negligently destroyed the dynamite
before the defense had the opportunity to examine it. After
initially denying respondents' motion, [
Footnote 6] and after
Page 474 U. S. 307
two continuances at respondents' behest, [
Footnote 7] the District Court granted
respondents' motion to suppress on March 31, 1976. App. to Pet. for
Cert. 157a. Three weeks later, the Government appealed the
suppression order, [
Footnote 8]
and moved that trial on all counts be continued pending the outcome
of the appeal. The District Court denied the Government's request
for a continuance, and when the case was called for trial, the
Government answered "not ready." Pursuant to Federal Rule of
Criminal Procedure 48(b), the District Judge dismissed the
indictment with prejudice. Six months had passed since the original
indictment.
The Government immediately appealed the dismissal, and the two
appeals were consolidated. The Court of Appeals
Page 474 U. S. 308
heard argument on October 15, 1976, and a divided panel affirmed
in an unreported opinion on July 26, 1977. App. to Pet. for Cert.
88a-118a. On the Government's motion, the court voted on October
17, 1977, to hear the case en banc. On March 6, 1978, the Court of
Appeals en banc remanded for findings of fact on whether federal
officials participated in the destruction of the dynamite and
whether respondents were prejudiced by its destruction. The court
retained jurisdiction over the appeal pending the District Court's
findings. The District Court issued its findings on August 23,
1978, and the case returned to the Court of Appeals.
On August 7, 1979, the Court of Appeals reversed the suppression
order and directed that the dynamite counts be reinstated.
United States v. Loud Hawk, 628 F.2d at 1150. The court
also held that, although the Government could have gone to trial on
the firearms counts pending the appeal, the District Court erred in
dismissing those counts with prejudice.
Id. at 1151. The
Court of Appeals denied respondents' petition for rehearing on
October 1, 1979. Respondents petitioned for certiorari; we denied
the petition on larch 3, 1980. 445 U.S. 917. The mandate of the
Court of Appeals issued on March 12, 1980, 46 months after the
Government filed its notice of appeal from the dismissal of the
indictment. Respondents were unconditionally released during that
time.
Following remand, the District Court ordered the Government to
reindict on the firearms charges. [
Footnote 9] Respondents filed a number of motions during
June and July of 1980 in response
Page 474 U. S. 309
to the superseding indictment, [
Footnote 10] including a motion to dismiss for vindictive
prosecution. On August 8, 1980, the District Court granted the
vindictive prosecution motion as to KaMook Banks and denied it as
to respondents Dennis Banks, Render, and Loud Hawk. Both sides
appealed. Respondents remained free on their own recognizance
during this appeal.
The appeals were consolidated, and the Court of Appeals ordered
expedited consideration. The court heard argument on January 7,
1981, but did not issue its decision until July 29, 1982. The court
sustained the Government's position on all issues.
United
States v. Banks, 682 F.2d 841. Respondents' petitions for
rehearing were denied on October 5, 1982. Respondents again
petitioned for certiorari, and we denied the petition on January
10, 1983. 459 U.S. 1117. The Court of Appeals' mandate issued on
January 31, 1983, almost 29 months after the appeals were
filed.
The District Court scheduled trial to begin on April 11, 1983.
The Government sought and received a continuance until May 3, 1983,
because of alleged difficulties in locating witnesses more than
seven years after the arrests. Subsequently, the court on its own
motion continued the trial date until May 23, 1983, and then again
rescheduled the trial for June 13. The record in this Court does
not reveal the reasons
Page 474 U. S. 310
for these latter two continuances. Defendants objected to each
continuance.
On May 20, 1983, the District Court again dismissed the
indictment, this time on the ground that respondents' Sixth
Amendment right to a speedy trial had been violated.
564 F.
Supp. 691. The Government appealed, and unsuccessfully urged
the District Court to request that the Court of Appeals expedite
the appeal. On its own motion, the court treated the appeal as
expedited, and heard argument on January 4, 1984. A divided panel
affirmed on August 30, 1984. 741 F.2d 1184. [
Footnote 11] We granted certiorari, 471 U.S.
1014 (1985), and now reverse.
II
The Government argues that, under
United States v.
MacDonald, 456 U. S. 1 (1982),
the time during which defendants are neither under indictment nor
subject to any restraint on their liberty should be excluded --
weighed not at all -- when considering a speedy trial claim.
[
Footnote 12] Respondents
contend that, even during the time the charges against them were
dismissed, the Government was actively pursuing its case, and they
continued to be subjected to the possibility that bail might be
imposed. This possibility, according to respondents, is sufficient
to warrant counting the time towards a speedy trial claim.
The Court has found that, when no indictment is outstanding,
only the
"
actual restraints imposed by arrest and holding to
answer a criminal charge . . . engage the particular protections of
the speedy trial provision of the Sixth Amendment."
United States v. Marion, 404 U.
S. 307,
404 U. S. 320
(1971)
Page 474 U. S. 311
(emphasis added);
see MacDonald, supra, at
456 U. S. 9. As we
stated in
MacDonald:
"The speedy trial guarantee is designed to minimize the
possibility of lengthy incarceration prior to trial, to reduce the
lesser, but nevertheless substantial, impairment of liberty imposed
on an accused while released on bail, and to shorten the disruption
of life caused by arrest and the presence of unresolved criminal
charges."
456 U.S. at
456 U. S. 8.
During much of the litigation, respondents were neither under
indictment nor subject to bail. [
Footnote 13] Further judicial proceedings would have been
necessary to subject respondents to any actual restraints.
Cf.
Klopfer v. North Carolina, 386 U. S. 213
(1967). As we stated in
MacDonald:
"[W]ith no charges outstanding, personal liberty is certainly
not impaired to the same degree as it is after arrest while charges
are pending. After the charges against him have been
dismissed,"
"a citizen suffers no restraints on his liberty and is [no
longer] the subject of public accusation: his situation does not
compare with that of a defendant who has been arrested and held to
answer."
456 U.S. at
456 U. S. 9.
Respondents argue that the speedy trial guarantee should apply
to this period because the Government's desire to prosecute them
was a matter of public record. Public suspicion, however, is not
sufficient to justify the delay in favor of a defendant's speedy
trial claim. We find that, after the District Court dismissed the
indictment against respondents and after respondents were freed
without restraint, they were "in the same position as any other
subject of a criminal investigation."
MacDonald, supra, at
456 U. S. 8-9.
See Marion, supra, at
404 U. S. 309.
The Speedy Trial Clause does not purport to protect a defendant
from all effects flowing from a delay before trial.
Page 474 U. S. 312
The Clause does not, for example, limit the length of a
preindictment criminal investigation, even though "the [suspect's]
knowledge of an ongoing criminal investigation will cause stress,
discomfort, and perhaps a certain disruption in normal life." 456
U.S. at
456 U. S. 9.
Nor does the fact that respondents were ordered to appear at the
evidentiary hearing held on remand in the District Court during the
first appeal -- an appearance they waived -- constitute the sort of
"actual restraint" required under our precedents as a basis for
application of the Speedy Trial Clause. Finally, we are not
persuaded that respondents' need for counsel while their case was
technically dismissed supports their speedy trial claim. Although
the retention of counsel is frequently an inconvenience and an
expense, the Speedy Trial Clause's core concern is impairment of
liberty; it does not shield a suspect or a defendant from every
expense or inconvenience associated with criminal defense.
We therefore find that, under the rule of
MacDonald,
when defendants are not incarcerated or subjected to other
substantial restrictions on their liberty, a court should not weigh
that time towards a claim under the Speedy Trial Clause.
III
The remaining issue is how to weigh the delay occasioned by an
interlocutory appeal when the defendant is subject to indictment or
restraint. As we have recognized, the Sixth Amendment's guarantee
of a speedy trial
"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."
United States v. Ewell, 383 U.
S. 116,
383 U. S. 120
(1966). The safeguards may be as important to the accused when the
delay is occasioned by an unduly long appellate process as when the
delay is caused by a lapse between the initial arrest and the
drawing of a proper indictment,
Ewell, supra, at
Page 474 U. S. 313
383 U. S.
118-119, or by continuances in the date of trial,
Barker v. Wingo, 407 U. S. 514,
407 U. S.
517-518 (1972).
At the same time, there are important public interests in the
process of appellate review. The assurance that motions to suppress
evidence or to dismiss an indictment are correctly decided through
orderly appellate review safeguards both the rights of defendants
and the "rights of public justice."
Beavers v. Haubert,
198 U. S. 77,
198 U. S. 87
(1905). The legislative history of 18 U.S.C. § 3731
"makes it clear that Congress intended to remove all statutory
barriers to Government appeals and to allow appeals whenever the
Constitution would permit."
United States v. Wilson, 420 U.
S. 332,
420 U. S. 337
(1975)
It is, of course, true that the interests served by appellate
review may sometimes stand in opposition to the right to a speedy
trial. But, as the Court observed in
United States v. Ewell,
supra, at
383 U. S.
121:
"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. . . . [This rule] 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. . . .
These policies, so carefully preserved in this Court's
interpretation given the Double Jeopardy Clause, would be seriously
undercut by [an] interpretation given the Speedy Trial Clause [that
raised a Sixth Amendment obstacle to retrial following successful
attack on conviction]."
In
Barker, we adopted a four-part balancing test to
determine whether a series of continuances infringed upon the
defendant's right to a speedy trial. 407 U.S. at
407 U. S. 530.
That test assessed the "[l]ength of delay, the reason for the
Page 474 U. S. 314
delay, the defendant's assertion of his right, and prejudice to
the defendant."
Ibid. (footnote omitted). The
Barker test furnishes the flexibility to take account of
the competing concerns of orderly appellate review on the one hand,
and a speedy trial on the other. We therefore adopt this functional
test to determine the extent to which appellate time consumed in
the review of pretrial motions should weigh towards a defendant's
speedy trial claim. Under this test, we conclude that, in this
case, the delays do not justify the "unsatisfactorily severe remedy
of dismissal."
Id. at
407 U. S.
522.
A
Barker's first, third, and fourth factors present no
great difficulty in application. The first factor, the length of
delay, defines a threshold in the inquiry: there must be a delay
long enough to be "presumptively prejudicial."
Id. at
407 U. S. 530.
Here, a 90-month delay in the trial of these serious charges is
presumptively prejudicial, and serves to trigger application of
Barker's other factors.
Ibid.
The third factor -- the extent to which respondents have
asserted their speedy trial rights -- does not support their
position. Although the Court of Appeals found that respondents have
repeatedly moved for dismissal on speedy trial grounds, 741 F.2d at
1192, that finding alone does not establish that respondents have
appropriately asserted their rights. We held in
Barker
that such assertions from defendants are "entitled to strong
evidentiary weight" in determining whether their rights to a speedy
trial have been denied. 407 U.S. at
407 U. S.
531-532. These assertions, however, must be viewed in
the light of respondents' other conduct.
Here, respondents' speedy trial claims are reminiscent of
Penelope's tapestry. [
Footnote
14] At the same time respondents were making a record of claims
in the District Court for speedy trial, they consumed six months by
filing indisputably frivolous petitions for rehearing and for
certiorari after this
Page 474 U. S. 315
Court's decision in
United States v. Hollywood Motor Car
Co., 458 U. S. 263
(1982) (federal courts without jurisdiction to hear defendant's
interlocutory appeal from denial of motion to dismiss indictment).
They also filled the District Court's docket with repetitive and
unsuccessful motions.
See, e.g., n 10,
supra.
The Court of Appeals gave "little weight" to the fourth factor,
prejudice to respondents. At most, the court recognized the
possibility of "impairment of a fair trial that may well result
from the absence or loss of memory of witnesses in this case." 741
F.2d at 1193.
See Barker, 407 U.S. at
407 U. S. 532.
That possibility of prejudice is not sufficient to support
respondents' position that their speedy trial rights were violated.
In this case, moreover, delay is a two-edged sword. It is the
Government that bears the burden of proving its case beyond a
reasonable doubt. The passage of time may make it difficult or
impossible for the Government to carry this burden.
B
The flag all litigants seek to capture is the second factor, the
reason for delay. In
Barker, we held that "different
weights should be assigned to different reasons."
Id. at
407 U. S. 531.
While a "deliberate attempt to delay the trial in order to hamper
the defense," would be weighed heavily against the Government, a
delay from "overcrowded courts" -- as was the situation here --
would be weighed "less heavily."
Ibid. Given the important
public interests in appellate review,
supra, at
474 U. S. 313,
it hardly need be said that an interlocutory appeal by the
Government ordinarily is a valid reason that justifies delay. In
assessing the purpose and reasonableness of such an appeal, courts
may consider several factors. These include the strength of the
Government's position on the appealed issue, the importance of the
issue in the posture of the case, and -- in some cases -- the
seriousness of the crime.
United States v. Herman, 576
F.2d 1139, 1146 (CA5 1978) (Wisdom, J.). For example, a delay
resulting from an appeal
Page 474 U. S. 316
would weigh heavily against the Government if the issue were
clearly tangential or frivolous.
Ibid. Moreover, the
charged offense usually must be sufficiently serious to justify
restraints that may be imposed on the defendant pending the outcome
of the appeal.
Ibid.
Under
Barker, delays in bringing the case to trial
caused by the Government's interlocutory appeal may be weighed in
determining whether a defendant has suffered a violation of his
rights to a speedy trial. It is clear in this case, however, that
respondents have failed to show a reason for according these delays
any effective weight towards their speedy trial claims. There is no
showing of bad faith or dilatory purpose on the Government's part.
The Government's position in each of the appeals was strong, and
the reversals by the Court of Appeals are
prima facie
evidence of the reasonableness of the Government's action.
Moreover, despite the seriousness of the charged offenses, the
District Court chose not to subject respondents to any actual
restraints pending the outcome of the appeals.
The only remaining question is the weight to be attributed to
delays caused by respondents' interlocutory appeals. In that
limited class of cases where a pretrial appeal by the defendant is
appropriate,
see, e.g., Hollywood Motor Car Co., supra, at
458 U. S.
265-266, delays from such an appeal ordinarily will not
weigh in favor of a defendant's speedy trial claims. A defendant
with a meritorious appeal would bear the heavy burden of showing an
unreasonable delay caused by the prosecution in that appeal, or a
wholly unjustifiable delay by the appellate court. A defendant who
resorts to an interlocutory appeal normally should not be able upon
return to the district court to reap the reward of dismissal for
failure to receive a speedy trial. As one Court of Appeals has
noted in the context of a District Court's consideration of
pretrial motions:
"Having sought the aid of the judicial process and realizing the
deliberateness that a court employs in reaching a
Page 474 U. S. 317
decision, the defendants are not now able to criticize the very
process which they so frequently called upon."
United States v. Auerbach, 420 F.2d 921, 924 (CA5
1969),
rehearing denied, 423 F.2d 66,
cert.
denied, 399 U.S. 905 (1970).
In the present case, respondents' appeal was allowable under the
law of the Ninth Circuit before our decision in
Hollywood Motor
Car, supra. But we find that their position was so lacking in
merit that the time consumed by this appeal should not weigh in
support of respondents' speedy trial claim. Nor do we weigh the
additional delay of six months resulting from respondents'
frivolous action in seeking rehearing and certiorari toward
respondents' speedy trial claim.
See ibid., decided prior
to these latter actions.
IV
We cannot hold, on the facts before us, that the delays asserted
by respondents weigh sufficiently in support of their speedy trial
claim to violate the Speedy Trial Clause. They do not justify the
severe remedy of dismissing the indictment. Accordingly, the
judgment of the Court of Appeals for the Ninth Circuit is
reversed.
It is so ordered.
[
Footnote 1]
The Speedy Trial Clause of the Sixth Amendment reads: "In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial. . . ."
The more stringent provisions of the Speedy Trial Act, 18 U.S.C.
§ 3161
et seq., have mooted much litigation about the
requirements of the Speedy Trial Clause as applied to federal
prosecutions. The time devoted to pretrial appeals, however, is
automatically excluded under the Act, §§ 3161(d)(2) and (h)(1)(E).
These respondents must therefore seek any relief under the Speedy
Trial Clause.
[
Footnote 2]
Dennis James Banks, one of the respondents in this action, was
active in the American Indian Movement, and was a fugitive when
these events occurred. The siege and occupation of Wounded Knee had
taken place 60 months before, and the Federal Bureau of
Investigation was tracking Banks and his party as fugitives from
that affair.
United States v. Loud Hawk, 628 F.2d 1139,
1141 (CA9 1979). For a description of the battle of Wounded Knee
and the resultant violence and death,
see United States v.
Banks, 383 F.
Supp. 389 (SD 1974),
appeal dism'd, 513 F.2d 1329 (CA8
1975);
United States v. Banks, 374 F.
Supp. 321 (SD 1974);
United States v.
Banks, 368 F.
Supp. 1245 (SD 1973).
[
Footnote 3]
The Government represents that it would introduce evidence at
trial showing that respondent Dennis Banks was the driver of one of
the vehicles. Banks was not apprehended until January 26, 1976.
[
Footnote 4]
Respondents still dispute any characterization of the destroyed
evidence as dynamite. Brief in Opposition 4, and n. 4; Brief for
Respondents 4, n. 5. The Court of Appeals wrote:
"Each of the seven boxes was marked 'High Explosives Dangerous'
and on the side had the following markings:"
"
50 lbs"
"
Gelex 2 1 x 8"
"
70% Strength"
"
D73MAO 7B"
"together with the logo of the DuPont company prominently
displayed. Inside were red cylindrical sticks with heavy wrapping
paper covering the contents and marked:"
"
Explosives Dangerous"
"
Gelex 2"
"
70% Strength"
"
E I Dupont De Nemours & Co. (Inc.)."
United States v. Loud Hawk, supra, at 1144-1145. We
follow the practice of the opinions discussing the issue and refer
to the destroyed evidence as dynamite. 741 F.2d 1184, 1187 (CA9
1984);
United States v. Loud Hawk, supra, at 1143.
Cf.
United States v. Banks, 682 F.2d 841, 843 (CA9 1982)
("explosive material").
[
Footnote 5]
App. 40a-42a, and n. 4, 90a.
[
Footnote 6]
The District Court denied the motion on January 21, 1976.
[
Footnote 7]
On January 21, 1976, the District Court postponed trial until
March 8, 1976, on respondents' motion. On respondents' motion and
over the objection of the Government, on February 18, 1976, the
District Court again continued trial until May 12, 1976. Record,
Doc. Nos. 62, 64.
[
Footnote 8]
The Government is permitted to pursue some interlocutory appeals
under 18 U.S.C. § 3731. That section, as then in effect, read:
"In a criminal case an appeal by the United States shall lie to
a court of appeals from a decision, judgment, or order of a
district court dismissing an indictment or information as to any
one or more counts, except that no appeal shall lie where the
double jeopardy clause of the United States Constitution prohibits
further prosecution."
"An appeal by the United States shall lie to a court of appeals
from a decision or order of a district courts [
sic]
suppressing or excluding evidence or requiring the return of seized
property in a criminal proceeding, not made after the defendant has
been put in jeopardy and before the verdict or finding on an
indictment or information, if the United States attorney certifies
to the district court that the appeal is not taken for purpose of
delay and that the evidence is a substantial proof of a fact
material in the proceeding."
"The appeal in all such cases shall be taken within thirty days
after the decision. judgment or order has been rendered and shall
be diligently prosecuted."
"Pending the prosecution and determination of the appeal in the
foregoing instances, the defendant shall be released in accordance
with chapter 207 of this title."
"The provisions of this section shall be liberally construed to
effectuate its purposes."
[
Footnote 9]
App. 57. The Government obtained a new indictment from the grand
jury that recharged with the original firearms count (although it
substituted "receiving" for "transporting") and two of the original
three dynamite device counts. The new indictment also charged the
defendants with two new destructive device counts relating to a
slightly different type of destructive device. It also charged
respondent KaMook Banks with a new count of receiving firearms
while under indictment for a felony.
[
Footnote 10]
A listing of the relevant docket entries,
id. at
38-145, shows that the motions filed during this 4-week period
included: motion for a transcript of a recently held hearing (June
24, 1980),
id. at 61; motion to dismiss counts three and
four for insufficient allegations (July 7, 1980),
id. at
63; motion to suppress evidence of pretrial photographic
identification and "Tainted Potential Courtroom Identification,"
ibid.; motion for change in jury selection procedure,
ibid.; motion to dismiss because of the grand jury
composition,
ibid.; motion to dismiss for vindictive
prosecution,
ibid.; motion to dismiss for preindictment
delay,
ibid.; motion for disclosure and production (July
21, 1980),
id. at 64; motion for appointment of
investigator at Government expense,
ibid.; and third
motion to dismiss for gross governmental misconduct,
ibid.
All motions except for KaMook Banks' vindictive prosecution motion
were denied (Aug. 5, 1980).
Id. at 65-66.
[
Footnote 11]
The Ninth Circuit's holding conflicts with three other Circuits.
See United States v. Herman, 576 F.2d 1139, 1146 (CA5
1978);
United States v. Jackson, 508 F.2d 1001, 1004 (CA7
1975);
United States v. Bishton, 150 U.S.App.D.C. 51, 54,
463 F.2d 887, 890 (1972).
[
Footnote 12]
. In
MacDonald, we held that where the Government has
dismissed an indictment and the defendant is not subject to actual
restraints on his liberty, the Speedy Trial Clause does not
apply.
[
Footnote 13]
In those instances where the defendant is subject to
incarceration or bail, the courts would have to engage in a
balancing of the restrictions imposed and their effect on the
defendant, the necessity for delay, and the length of delay, using
the approach we have outlined below.
Infra at
474 U. S.
31-316.
[
Footnote 14]
Homer, The Odyssey, Book II, lines 91-105 (R. Lattimore
trans.1965).
JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.
The Court holds today that the Speedy Trial Clause of the Sixth
Amendment does not apply to a Government appeal from a district
court's dismissal of an indictment, unless the defendant is
incarcerated or otherwise under restraint during that appeal. The
majority supports this result by equating the present case to
United States v. MacDonald, 456 U. S.
1 (1982). That analysis, however, both ignores the
considerable differences between this case and
MacDonald
and gives short shrift to the interests protected by the Speedy
Trial Clause. I further disagree with the majority's
application
Page 474 U. S. 318
of
Barker v. Wingo, 407 U. S. 514
(1972), to the remaining appellate delays in this case.
I
The majority concludes that, when an appeal arises out of the
district court's dismissal of an indictment, the lack of an
outstanding indictment absolves the Government of its
responsibility to provide a speedy trial. However, we have never
conditioned Sixth Amendment rights solely on the presence of an
outstanding indictment. Those rights attach to anyone who is
"accused," [
Footnote 2/1] and we
have until now recognized that one may stand publicly accused
without being under indictment. The majority offers two reasons for
concluding that respondents did not enjoy the right to a speedy
trial during the Government's appeals. First, respondents were
suffering only "[p]ublic suspicion,"
ante at
474 U. S. 311,
and not a formal accusation. Second, they were not subject to
"actual restraints" on their liberty. Both of these rationales are
seriously flawed.
A
In
United States v. Marion, 404 U.
S. 307 (1971), we held that the Speedy Trial Clause does
not apply until the Government, either through arrest or
indictment, asserts probable cause to believe that a suspect has
committed a crime. Before that time, the individual, while possibly
aware of the Government's suspicion, is not "the subject of public
accusation,"
id. at
404 U. S. 321,
and his only protection against delay comes from the Due Process
Clause and the applicable statute of limitations. The Court applied
the same rationale in
MacDonald, supra. In that case,
military charges of murder against MacDonald, an Army officer, were
dropped after an investigation. MacDonald was then given an
honorable discharge, only to be indicted by a civilian grand jury
nearly
Page 474 U. S. 319
four years later for the same murders. The Court held that this
delay did not implicate the speed trial right because "the Speedy
Trial Clause has no application after the Government, acting in
good faith, formally drops charges."
Id. at
456 U. S. 7. The
Court reasoned that, after the termination of the first formal
prosecution, MacDonald was "in the same position as any other
subject of a criminal investigation,"
id. at
456 U. S. 8-9, and
thus was no more an "accused" than was the defendant in
Marion before his arrest.
The same cannot be said of respondents in the present case.
[
Footnote 2/2] Unlike one who has
not been arrested, or one who has had the charges against him
dropped, respondents did not enjoy the protection of the statute of
limitations while the Government prosecuted its appeals. That
protection was an important aspect of our holding in
Marion that prearrest delay is not cognizable under the
Speedy Trial Clause.
See 404 U.S. at
404 U. S.
322-323. More importantly, in contrast to
MacDonald, the Government has not "dropped" anything
in
Page 474 U. S. 320
this case. [
Footnote 2/3] There
has been at all relevant times a case on a court docket captioned
United States v. Loud Hawk -- I can think of no more
formal indication that respondents stand accused by the
Government.
The majority argues that, while "the Government's desire to
prosecute [respondents] was a matter of public record," that desire
constituted only "[p]ublic suspicion" that is insufficient to call
Sixth Amendment rights into play, citing
Marion and
MacDonald. Ante at
474 U. S. 311.
The reason that the Government's desire to prosecute in both of
those cases did not constitute an "accusation," however, is that
the Government had not yet formalized its commitment. Indeed, in
MacDonald, the Government dismissed the murder charges
because it "concluded that they were untrue," 456 U.S. at
456 U. S. 10, n.
12, thus acknowledging that the first formal accusation had been a
mistake and extinguishing the prior probable cause determination.
In the present case, the Government has made no such confession of
error, and continues to align its full resources against
respondents in judicial proceedings.
The most telling difference between this case and
MacDonald, however, is the fact that respondents' liberty
could have been taken from them at any time during the
Government's
Page 474 U. S. 321
appeal. One of the primary purposes of the speedy trial right,
of course, is to prevent prolonged restraint on liberty,
id. at
456 U. S. 8;
Barker v. Wingo, 407 U.S. at
407 U. S. 532,
and the absence of any possibility of such restraints was a vital
part of our
MacDonald holding.
See 456 U.S. at
456 U. S. 9. In
contrast, Congress has declared explicitly, in 18 U.S.C. § 3731,
that a person in respondents' position shall be subject to the same
restraints as an arrested defendant awaiting trial. [
Footnote 2/4] Thus, the District Court had
the undoubted authority to condition respondents' release on the
posting of bail, or indeed to keep them in jail throughout the
appeal,
see 18 U.S.C. § 3142(e) (1982 ed., Supp. III).
Respondents' release could have been accompanied by restrictions on
travel, association, employment, abode, and firearms possession, or
conditioned on their reporting regularly to law enforcement
officers and/or keeping a curfew.
See § 3142(c).
Considering all the circumstances, therefore, I believe that
respondents' position is most closely analogous to that of a
defendant who has been arrested but not yet indicted.
B
As if acknowledging that the delay in this case is more
analogous to postarrest, preindictment delay than to prearrest
delay, the majority concedes that, had respondents been
incarcerated or forced to post bond during the Government's
appeals, the automatic exclusion rule of
MacDonald would
not apply.
Ante at
474 U. S. 311,
n. 13. Yet, inexplicably, the majority then suggests that the
Speedy Trial Clause applies to postarrest, preindictment delay only
when the defendant has been subjected to "
actual
restraints,'" ante at 474 U. S.
310,
Page 474 U. S. 322
quoting
Marion, 404 U.S. at
404 U. S. 320
(emphasis added by majority opinion). The majority completely
misreads
Marion while creating a rule that is flatly
inconsistent with our prior holdings.
We held in
Marion that prearrest delay is not
cognizable under the Speedy Trial Clause, but we certainly did not
disturb the settled rule that the Government's formal institution
of criminal charges, whether through arrest or indictment, always
calls the speedy trial right into play.
See id. at
404 U. S.
316-319;
see also United States v. Gouveia,
467 U. S. 180,
467 U. S.
185-186 (1984). Although it specified detention and bail
as possible deleterious effects of a formal criminal charge,
Marion nowhere suggested that it is the restraints
themselves, rather than the assertion of probable cause, that
constitute an accusation. Nor did we hold that a criminal charge
has less constitutional significance when a defendant is released
on recognizance, rather than on bail.
See 404 U.S. at
404 U. S. 321,
n. 12. The majority identifies no logic or precedent supporting its
novel conclusion that a defendant who is arrested and released on
bail is "accused," while a defendant who is arrested and released
without bail, on the same evidence, is not "accused." [
Footnote 2/5]
Indeed, we have rejected precisely the interpretation of
Marion that the majority now adopts. In
Dillingham v.
United States, 423 U. S. 64 (1975)
(per curiam), we held that
Page 474 U. S. 323
Marion does not require "actual prejudice" to invoke
the speedy trial right for postarrest, preindictment delay. Such
"actual prejudice" included the "actual restraints" that the
majority now requires. The Court of Appeals in that case noted that
the defendant was released on bond, but without any other
restrictions, pending trial. After citing
Marion, it held
that "any increased strain on this man's life which followed his
arrest . . . does not rise to the level of substantial actual
prejudice."
United States v. Palmer, 502 F.2d 1233, 1237
(CA5 1974),
rev'd sub nom. Dillingham v. United States,
supra. We summarily rejected the "actual prejudice" rationale,
and the majority gives no reason whatsoever for resurrecting it
today. [
Footnote 2/6]
There can be no question that one who had been arrested and
released under 18 U.S.C. § 3141(a) (1982 ed., Supp. III) would be
entitled, under
Marion, to the protections of the Speedy
Trial Clause. Because respondents were by statute subject to the
same restraints as that hypothetical defendant, I am at a loss to
understand why they should enjoy less protection.
II
The majority also declines to hold the Government accountable
for delay attributable to appeals during which respondents
Page 474 U. S. 324
were under indictment. In doing so the majority emphasizes the
second
Barker factor -- the reason for the delay,
see 407 U.S. at
407 U. S. 530.
Because it concludes that "[t]here is no showing of bad faith or
dilatory purpose on the Government's part," the majority declines
to accord any "effective weight" to this factor in the speedy trial
balance.
Ante at
474 U. S. 316.
In reaching this conclusion, it virtually ignores the most obvious
"reason for the delay" in this case -- the fact that the Court of
Appeals was unable to decide these appeals in a reasonably prompt
manner.
In
Barker, we explained the application of the "reason
for the delay" factor as follows:
"[D]ifferent weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more
neutral reason such as negligence or overcrowded courts should be
weighted less heavily but nevertheless should be considered, since
the ultimate responsibility for such circumstances must rest with
the government, rather than with the defendant."
407 U.S. at
407 U. S. 531
(footnote omitted). The majority's application of this factor to
the appellate delays in this case makes Government misconduct or
bad faith a virtual prerequisite to a finding of a speedy trial
violation. Seizing upon the approach of some of the Courts of
Appeals, [
Footnote 2/7] the
majority analyzes the reason behind the appellate delay solely in
terms of the reasonableness of the Government's behavior in taking
and prosecuting the appeal. This approach is inconsistent with the
policies behind the speedy trial right. We recognized in
Barker that the right protects both the defendant's
interest in fairness and society's interest in providing
Page 474 U. S. 325
swift justice.
Id. at
407 U. S. 519.
Courts as well as prosecutors must necessarily work to promote
those interests if they are to have any vitality. Because it is the
Government as a whole -- including the courts -- that bears the
responsibility to provide a speedy trial, the prosecutor's good
faith cannot suffice to discharge that responsibility. [
Footnote 2/8]
The Court of Appeals frankly admitted that "most of the delay
must be attributed to the processes of this court," 741 F.2d 1184,
1191 (CA9 1984), a conclusion that is difficult to escape. This
case involves appeals from pretrial rulings. The Court of Appeals
had every reason to know that these appeals should have been ruled
upon as expeditiously as possible.
See that court's Rule
20. Yet it took over five years for the Court of Appeals to decide
two appeals, one of them "expedited." No complicated analysis is
needed to identify the reason for the delay in this case.
I would hold, simply, that a nonfrivolous appeal by any party
permits a
reasonable delay in the proceedings. The number
and complexity of the issues on appeal, or the number of parties,
might permit a greater or lesser delay in a given case. The
government, not the defendant, must suffer the ultimate
consequences of delays attributable to "overcrowded courts,"
ibid., even at the appellate level. [
Footnote 2/9] In the
Page 474 U. S. 326
present case, the amount of time that the appeals consumed is
patently unreasonable. I would therefore weigh the second
Barker factor against the Government in this case.
III
The majority has seriously misapplied our precedents in
concluding that delay resulting when the government appeals the
dismissal of an indictment is excludable for speedy trial purposes
unless the defendant is subjected to actual restraints during that
appeal. Its application of
Barker v. Wingo to this case
also undercuts the very purpose of the speedy trial right. I
respectfully dissent.
[
Footnote 2/1]
The Sixth Amendment provides in pertinent part: "In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial. . . ."
[
Footnote 2/2]
It is also instructive to compare the present case and
MacDonald with respect to another Sixth Amendment right --
the right to counsel. Surely a Government appeal under 18 U.S.C. §
3731 is a "critical stage" of the prosecution, implicating the
Sixth Amendment right to counsel.
Cf. Evitts v. Lucey,
469 U. S. 387
(1985) (defendant in state prosecution has due process right to
effective assistance of counsel on appeal, whether counsel is
retained or appointed). As during other critical stages, the
defendant needs an attorney during a government appeal "as a shield
to protect him against being
haled into court' by the State and
stripped of his presumption of innocence." Ross v. Mott,
417 U. S. 600,
417 U. S.
610-611 (1974). Again, the contrast to
MacDonald is striking. The defendant in that case would
have had no Sixth Amendment right to counsel during the time
between the dropping of the Army charges and the filing of the
grand jury charges; that period was not a "critical stage" of a
prosecution.
In
United States v. Gouveia, 467 U.
S. 180 (1984), we held that the Sixth Amendment right to
counsel is satisfied in a narrower class of cases than the speedy
trial right. It therefore defies logic to conclude that respondents
could be protected by the former, but not the latter, during the
Government's appeal.
[
Footnote 2/3]
That neither Congress nor this Court has had any difficulty
recognizing the fundamental difference between the Government's
dismissal of an indictment and the court's dismissal, subject to
appellate review, is clear from Federal Rule of Criminal Procedure
48. Subdivision (a) of that Rule permits the Government, with leave
of court, to dismiss an indictment, and provides that, when the
indictment is dismissed, "the prosecution shall thereupon
terminate." Subdivision (b) permits the district court to dismiss
an indictment, but contains no language suggesting that such action
brings the prosecution to an end -- nor could it, because the
court's dismissal is subject to the Government's statutory right to
appeal.
Asking whether the indictment "exists" during the appeal, while
interesting from the standpoint of ontology, is of limited
practical help. Yet it is significant that, in the
MacDonald situation, the Government must go back to the
grand jury and seek reindictment. When the district court dismisses
an indictment, on the other hand, the court of appeals can
reinstate the indictment with the stroke of a pen.
[
Footnote 2/4]
Title 18 U.S.C. § 3731 provides in pertinent part: "Pending the
prosecution and determination of the appeal . . . the defendant
shall be released in accordance with chapter 207 of this title."
Chapter 207, 18 U.S.C. §§ 3141-3156, contains the procedures for
pretrial release, and permits the district courts to impose various
restraints pending trial. The Government concedes that respondents
could have been incarcerated or put under other restraints during
the Government's appeals. Tr. of Oral Arg. 6, 18.
[
Footnote 2/5]
It is worth noting that the Speedy Trial Act puts time limits on
the Government beginning with "the date on which [the defendant]
was arrested or served with a summons," 18 U.S.C. § 3161, without
regard to the terms of the defendant's release.
Moreover, Federal Rule of Criminal Procedure 48(b), which
"provides for enforcement of the [speedy trial] right,"
Pollard
v. United States, 352 U. S. 354,
352 U. S. 361,
n. 7 (1957);
see Marion, 404 U.S. at
404 U. S. 319,
states:
"If there is unnecessary delay in presenting the charge to a
grand jury or in filing an information against a defendant who has
been held to answer to the district court, . . . the court may
dismiss the indictment, information or complaint."
That language clearly confers the same rights on a defendant who
is arrested and unconditionally released as one who is released on
conditions.
[
Footnote 2/6]
Apparently relying on the fact that the defendant in
Dillingham had to post a $1,500 bond,
see 502
F.2d at 1234, the Government reads
Dillingham to stand for
the proposition that any restriction, no matter how insignificant,
invokes the Speedy Trial Clause when no indictment is outstanding.
See Tr. of Oral Arg.19. Once again, neither the plain
language of the Sixth Amendment nor any decision of this Court
suggests this peculiar constitutional standard. Moreover, while an
indictment and an arrest are comparable in that each one
constitutes a formal assertion of probable cause, there is no such
symmetry between an indictment and incarceration or posting of
bond. Simply put, the position advanced by the Government and the
majority lacks even internal consistency.
The only sensible reading of
Dillingham is that actual
restraints, like other types of prejudice to a defendant, are
relevant to the speedy trial balance, but are not prerequisites to
application of the Speedy Trial Clause.
See Barker v.
Wingo, 407 U. S. 514,
407 U. S. 533
(1972).
[
Footnote 2/7]
See, e.g., United States v. Saintil, 705 F.2d 415 (CA11
1983);
United States v. Herman, 576 F.2d 1139 (CA5
1978).
[
Footnote 2/8]
This assumes, of course, that the defendant wants a speedy
trial, and is not intentionally hindering the government's attempt
to provide one. That assumption may be open to question in this
case. The majority points out that respondents' strategically timed
demands for a speedy trial ring somewhat hollow in light of
respondents' overall behavior during the litigation. Were that the
basis for the Court's opinion, I might be able to accept a remand
to the Court of Appeals for further consideration of that factor. I
am unable, however, to agree with the majority's analysis of the
second
Barker v. Wingo factor.
[
Footnote 2/9]
The majority's focus on the prosecution's, rather than the
court's, contribution to the delay undoubtedly comes in part from a
reluctance to permit district courts to tell a court of appeals, or
possibly this Court, that it has taken too long to decide a case.
However, appellate courts have no privilege to decline
constitutional obligations. The appellate courts would be better
advised to adopt procedures for the speedy resolution of
interlocutory criminal appeals than to force district courts into
the uncomfortable position of dismissing indictments because of
appellate delay.