Appellees, claiming that the Government had known of the crimes
with which they were charged, the circumstances of the crimes, and
appellees' identities for over three years before they were
indicted, moved to dismiss on the ground that the indictment was
returned "an unreasonably oppressive and unjustifiable time after
the alleged offenses," and that the delay deprived them of rights
to due process of law and a speedy trial as secured by the Fifth
and Sixth Amendments. While asserting no specific prejudice,
appellees contended that the indictment required memory of many
specific acts and conversations occurring several years before and
that the delay was due to the prosecutor's negligence or
indifference in investigating the case and presenting it to the
grand jury. The District Court, after a hearing, granted appellees'
motion and dismissed the indictment for "lack of speedy
prosecution," having found that the defense was "bound to have been
seriously prejudiced" by the three-year delay. The Government took
a direct appeal to this Court, which postponed consideration of the
question of jurisdiction until the hearing on the merits.
Held:
1. The motion to dismiss the indictment for lack of a speedy
trial was in the nature of a confession and avoidance, and
constituted a motion in bar by appellees who had not been placed in
jeopardy when the District Court entered its order of dismissal.
That order was therefore directly appealable to this Court under
former 18 U.S.C. § 3731. Pp.
404 U. S.
311-312.
2. The Sixth Amendment's guarantee of a speedy trial is
applicable only after a person has been "accused" of a crime, which
in this case did not occur until appellees (who had not previously
been arrested or otherwise charged) were indicted. Pp.
404 U. S.
313-320.
3. The relevant statute of limitations provides a safeguard
against possible prejudice resulting from pre-accusation delay, and
here appellees were indicted within the applicable limitations
period. Pp.
404 U. S.
320-323.
Page 404 U. S. 308
4. Though the Due Process Clause may provide a basis for
dismissing an indictment if the defense can how at trial that
prosecutorial delay has prejudiced the right to a fair trial,
appellees have not claimed or proved actual prejudice resulting
from the delay, and their due process claims are therefore
speculative and premature. Pp.
404 U. S.
325-326.
Reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART and BLACKMUN JJ., joined. DOUGLAS, J., filed an
opinion concurring in the result, in which BRENNAN and MARSHALL,
JJ., joined,
post, p.
404 U. S.
326.
MR. JUSTICE WHITE delivered the opinion of the Court.
This appeal requires us to decide whether dismissal of a federal
indictment was constitutionally required by reason of a period of
three years between the occurrence of the alleged criminal acts and
the filing of the indictment.
On April 21, 1970, the two appellees were indicted and charged
in 19 counts with operating a business known as Allied Enterprises,
Inc., which was engaged in the business of selling and installing
home improvements such as intercom sets, fire control devices, and
burglary detection systems. Allegedly, the business was
fraudulently
Page 404 U. S. 309
conducted and involved misrepresentations, alterations of
documents, and deliberate nonperformance of contracts. The period
covered by the indictment was March 15, 1965, to February 6, 1967;
the earliest specific act alleged occurred on September 3, 1965,
the latest on January 19, 1966.
On May 5, 1970, appellees filed a motion to dismiss the
indictment
"for failure to commence prosecution of the alleged offenses
charged therein within such time as to afford [them their] rights
to due process of law and to a speedy trial under the Fifth and
Sixth Amendments to the Constitution of the United States."
No evidence was submitted, but, from the motion itself and the
arguments of counsel at the hearing on the motion, it appears that
Allied Enterprises had been subject to a Federal Trade Commission
cease and desist order on February 6, 1967, and that a series of
articles appeared in the Washington Post in October, 1967,
reporting the results of that newspaper's investigation of
practices employed by home improvement firms such as Allied. The
articles also contained purported statements of the then United
States Attorney for the District of Columbia describing his
office's investigation of these firms and predicting that
indictments would soon be forthcoming. Although the statements
attributed to the United States Attorney did not mention Allied
specifically, that company was mentioned in the course of the
newspaper stories. In the summer of 1968, at the request of the
United States Attorney's office, Allied delivered certain of its
records to that office, and, in an interview there, appellee Marion
discussed his conduct as an officer of Allied Enterprises. The
grand jury that indicted appellees was not impaneled until
September, 1969, appellees were not informed of the grand jury's
concern with them until March, 1970, and the indictment was finally
handed down in April.
Page 404 U. S. 310
Appellees moved to dismiss because the indictment was returned
"an unreasonably oppressive and unjustifiable time after the
alleged offenses." They argued that the indictment required memory
of many specific acts and conversations occurring several years
before, and they contended that the delay was due to the negligence
or indifference of the United States Attorney in investigating the
case and presenting it to a grand jury. No specific prejudice was
claimed or demonstrated. The District Court judge dismissed the
indictment for "lack of speedy prosecution" at the conclusion of
the hearing, and remarked that, since the Government must have
become aware of the relevant facts in 1967, the defense of the
case
"is bound to have been seriously prejudiced by the delay of at
least some three years in bringing the prosecution that should have
been brought in 1967, or, at the very latest, early 1968. [
Footnote 1] "
Page 404 U. S. 311
The United States appealed directly to this Court pursuant to 18
U.S.C. § 3731 (1964 ed., Supp. V). [
Footnote 2] We postponed consideration of the question of
jurisdiction until the hearing on the merits of the case. [
Footnote 3] We now hold that the Court
has jurisdiction, and on the merits we reverse the judgment of the
District Court.
I
Prior to its recent amendment, 18 U.S.C. § 3731 (1964 ed., Supp.
V) authorized an appeal to this Court
Page 404 U. S. 312
by the United States when, in any criminal case, a district
court sustained "a motion in bar, when the defendant has not been
put in jeopardy." It is plain to us that the appeal of the United
States is within the purview of this section. Appellees had not
been placed in jeopardy when the District Court rendered its
judgment. The trial judge based his ruling on undue delay prior to
indictment, a matter that was beyond the power of the Government to
cure since reindictment would not have been permissible under such
a ruling. The motion to dismiss rested on grounds that had nothing
to do with guilt or innocence or the truth of the allegations in
the indictment, but was, rather, a plea in the nature of confession
and avoidance, that is, where the defendant does not deny that he
has committed the acts alleged and that the acts were a crime, but
instead pleads that he cannot be prosecuted because of some
extraneous factor, such as the running of the statute of
limitations or the denial of a speedy trial.
See United States
v. Weller, 401 U. S. 254,
401 U. S. 260
(1971). The motion rested on constitutional grounds exclusively,
and neither the motion, the arguments of counsel, the Court's oral
opinion, nor its judgment mentioned Federal Rule of Criminal
Procedure 48(b), as a ground for dismissal. [
Footnote 4] Our jurisdiction to hear this appeal
has been satisfactorily established.
Page 404 U. S. 313
II
Appellees do not claim that the Sixth Amendment was violated by
the two-month delay between the return of the indictment and its
dismissal. Instead, they claim that their rights to a speedy trial
were violated by the period of approximately three years between
the end of the criminal scheme charged and the return of the
indictment; it is argued that this delay is so substantial and
inherently prejudicial that the Sixth Amendment required the
dismissal of the indictment. In our view, however, the Sixth
Amendment speedy trial provision has no application until the
putative defendant in some way becomes an "accused," an event that
occurred in this case only when the appellees were indicted on
April 21, 1970.
The Sixth Amendment provides that, "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial. . . ." On its face, the protection of the Amendment
is activated only when a criminal prosecution has begun, and
extends only to those persons who have been "accused" in the course
of that prosecution. These provisions would seem to afford no
protection to those not yet accused, nor would they seem to require
the Government to discover, investigate, and accuse any person
within any particular period of time. The Amendment would appear to
guarantee to a criminal defendant that the Government will move
with the dispatch that is appropriate to assure him an early and
proper disposition of the charges against him. "[T]he essential
ingredient is orderly expedition, and not mere speed."
Smith v.
United States, 360 U. S. 1,
360 U. S. 10
(1959).
Our attention is called to nothing in the circumstances
surrounding the adoption of the Amendment indicating
Page 404 U. S. 314
that it does not mean what it appears to say, [
Footnote 5] nor is there more than marginal
support for the proposition that, at the time of the adoption of
the Amendment, the prevailing rule was that prosecutions would not
be permitted if there had been long delay in presenting a charge.
[
Footnote 6] The framers could
hardly have selected less
Page 404 U. S. 315
appropriate language if they had intended the speedy trial
provision to protect against pre-accusation delay. No opinions of
this Court intimate support for appellee' thesis, [
Footnote 7] and the courts of appeals that
have considered the question in constitutional terms have never
reversed a conviction or dismissed an indictment solely on the
basis of the Sixth Amendment's speedy trial provision where only
pre-indictment delay was involved. [
Footnote 8]
Page 404 U. S. 316
Legislative effort to implement federal and State speedy trial
provisions also plainly reveal the view that thee guarantees are
applicable only after a person has
Page 404 U. S. 317
been accused of a crime. The Court has pointed out that
"[a]t the common law and in the absence of special statutes of
limitations the mere failure to find an indictment will not operate
to discharge the accused from the offense nor will a
nolle
prosequi entered by the Government or the failure of the grand
jury to indict."
United States v. Cadarr, 197 U.
S. 475,
197 U. S. 478
(1905). Since it is
"doubtless true that in some cases the power of the Government
has been abused and charges have been kept hanging over the
Page 404 U. S. 318
heads of citizens, and they have been committed for unreasonable
periods, resulting in hardship,"
the Court noted that many States
"[w]ith a view to preventing such wrong to the citizen . . .
[and] in aid of the constitutional provisions, National and state,
intended to secure to the accused a speedy trial"
had passed statutes limiting the time within which such trial
must occur after charge or indictment. [
Footnote 9] Characteristically, these statutes to which
the Court referred are triggered only when a citizen is charged or
accused. [
Footnote 10] The
statutes vary greatly in substance,
Page 404 U. S. 319
structure, and interpretation, but a common denominator is
that
"[i]n no event . . . [does] the right to speedy trial arise
before there is some charge or arrest, even though the prosecuting
authorities had knowledge of the offense long before this."
Note, The Right to a Speedy Trial, 57 Col.L.Rev. 846, 848
(1957).
No federal statute of general applicability has been enacted by
Congress to enforce the speedy trial provision of the Sixth
Amendment, but Federal Rule of Criminal Procedure 48(b), which has
the force of law, authorizes dismissal of an indictment,
information, or complaint
"[i]f 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, or if there is
unnecessary delay in bringing a defendant to trial. . . ."
The rule clearly is limited to post-arrest situations. [
Footnote 11]
Appellees' position is, therefore, at odds with longstanding
legislative and judicial constructions of the
Page 404 U. S. 320
speedy trial provisions in both national and state
constitutions.
III
It is apparent also that very little support for appellees'
position emerges from a consideration of the purposes of the Sixth
Amendment's speedy trial provision, a guarantee that this Court has
termed
"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);
see also Klopfer v. North Carolina, 386 U.
S. 213,
386 U. S.
221-226 (1967);
Dickey v. Florida, 398 U. S.
30,
398 U. S. 37-38
(1970). Inordinate delay between arrest, indictment, and trial may
impair a defendant's ability to present an effective defense. But
the major evils protected against by the speedy trial guarantee
exist quite apart from actual or possible prejudice to an accused's
defense. To legally arrest and detain, the Government must assert
probable cause to believe the arrestee has committed a crime.
Arrest is a public act that may seriously interfere with the
defendant's liberty, whether he is free on bail or not, and that
may disrupt his employment, drain his financial resources, curtail
his associations, subject him to public obloquy, and create anxiety
in him, his family and his friends. These considerations were
substantial underpinnings for the decision in
Klopfer v. North
Carolina, supra; see also Smith v. Hooey, 393 U.
S. 374,
393 U. S.
377-378 (1969). So viewed, it is readily understandable
that it is either a formal indictment or information or else the
actual restraints imposed by arrest and holding to answer a
criminal charge that engage the particular protections of the
speedy trial provision of the Sixth Amendment.
Page 404 U. S. 321
Invocation.of the speedy trial provision thus need not await
indictment, information, or other formal charge. [
Footnote 12] But we decline to extend the
reach of the amendment to the period prior to arrest. Until this
event occurs, a citizen suffers no restraints on his liberty and is
not the subject of public accusation: his situation does not
compare with that of a defendant who has been arrested and held to
answer. Passage of time, whether before or after arrest, may impair
memories, cause evidence to be lost, deprive the defendant of
witnesses, and otherwise interfere with his ability to defend
himself. [
Footnote 13] But
this
Page 404 U. S. 322
possibility of prejudice at trial is not itself sufficient
reason to wrench the Sixth Amendment from its proper context.
Possible prejudice is inherent in any delay, however short; it may
also weaken the Government's case.
The law has provided other mechanisms to guard against possible
as distinguished from actual prejudice resulting from the passage
of time between crime and arrest or charge. As we said in
United States v. Ewell, supra, at
383 U. S. 122,
"the applicable statute of limitations . . . is . . . the primary
guarantee against bringing overly stale criminal charges." Such
statutes represent legislative assessments of relative interests of
the State and the defendant in administering and receiving justice;
they "are made for the repose of society and the protection of
those who may [during the limitation] . . . have lost their means
of defence."
Public Schools v.
Walker, 9 Wall. 282,
76 U. S. 288
(1870). These statutes provide predictability by specifying a limit
beyond which there is an irrebuttable presumption that a
defendant's right to a fair trial would be prejudiced. [
Footnote 14] As this
Page 404 U. S. 323
Court observed in
Toussie v. United States,
397 U. S. 112,
397 U. S.
114-115 (1970):
"The purpose of a statute of limitations is to limit exposure to
criminal prosecution to a certain fixed period of time following
the occurrence of those acts the legislature has decided to punish
by criminal sanctions. Such a limitation is designed to protect
individuals from having to defend themselves against charges when
the basic facts may have become obscured by the passage of time and
to minimize the danger of official punishment because of acts in
the far-distant past. Such a time limit may also have the salutary
effect of encouraging law enforcement officials promptly to
investigate suspected criminal activity."
There is thus no need to press the Sixth Amendment into service
to guard against the mere possibility that pre-accusation delays
will prejudice the defense in a criminal case since statutes of
limitation already perform that function.
Since appellees rely only on potential prejudice and the passage
of time between the alleged crime and the
Page 404 U. S. 324
indictment,
see 404 U. S.
infra, we perhaps need go no further to dispose of this
case, for the indictment was the first official act designating
appellees as accused individuals, and that event occurred within
the statute of limitations. [
Footnote 15] Nevertheless, since a criminal trial is the
likely consequence of our judgment and since appellees may claim
actual prejudice to their defense, it is appropriate to note here
that the statute of limitations does not fully define the
appellees' rights with respect to the events occurring prior to
indictment. Thus, the Government concedes that the Due Process
Clause of the Fifth Amendment would require dismissal of the
indictment if it were shown at trial that the pre-indictment delay
in this case caused substantial prejudice to appellees' rights to a
fair trial and that the delay was an intentional device to gain
tactical advantage over the accused. [
Footnote 16]
Cf. Brady v. Maryland, 373 U. S.
83 (1963);
Napue v. Illinois, 360 U.
S. 264 (1959). However, we need not, and could not now,
determine when and in what circumstances actual prejudice resulting
from pre-accusation delays requires the dismissal of the
prosecution. [
Footnote 17]
Actual prejudice to the defense of a criminal case may result from
the shortest and most necessary delay; and no one suggests that
every delay caused detriment to a defendant's case should abort a
criminal
Page 404 U. S. 325
prosecution. [
Footnote
18] To accommodate the sound administration of justice to the
rights of the defendant to a fair trial will necessarily involve a
delicate judgment based on the circumstances of each case. It would
be unwise at this juncture to attempt to forecast our decision in
such cases.
IV
In the case before us, neither appellee was arrested, charged,
or otherwise subjected to formal restraint prior to indictment. It
was this event, therefore, that transformed the appellees into
"accused" defendants who are subject to the speedy trial
protections of the Sixth Amendment.
The 38-month delay between the end of the scheme charged in the
indictment and the date the defendants were indicted did not extend
beyond the period of the applicable statute of limitations here.
Appellees have not, of course, been able to claim undue delay
pending trial, since the indictment was brought on April 21, 1970,
and dismissed on June 8, 1970. Nor have appellees adequately
demonstrated that the pre-indictment delay by the Government
violated the Due Process Clause. No actual prejudice to the conduct
of the defense is alleged or proved, and there is no showing that
the Government intentionally delayed to gain some tactical
advantage over appellees or to harass them. Appellees rely
solely
Page 404 U. S. 326
on the real possibility of prejudice inherent in any extended
delay: that memories will dim, witnesses become inaccessible, and
evidence be lost. In light of the applicable statute of
limitations, however, these possibilities are not in themselves
enough to demonstrate that appellees cannot receive a fair trial
and to therefore justify the dismissal of the indictment. Events of
the trial may demonstrate actual prejudice, but at the present time
appellees' due process claims are speculative and premature.
Reversed.
[
Footnote 1]
App. 39. The court's oral decision consisted of the following
statement:
"It appears to the Court that the matters complained of occurred
between March, 1965, and January, 1966. It further appears that
these matters were known from early 1967 or a matter of common
knowledge in late 1967. There appears no reason why a three-year
delay from 1967 was justified by the necessity of research and
examination delving into the various transactions, they could have
been discovered and handled much, much sooner, certainly probably
during the year 1967 or, at the latest, early 1968."
"The defendants have been indicted on 19 counts, each of which I
believe carries a ten-year sentence, each of which is a separate,
distinct transaction which would justify consecutive sentences, and
by the very nature of this outrageous scheme if the allegations
could be believed, the ability to remember, to build up in one's
recollection, to produce the necessary defense, is bound to have
been seriously prejudiced by the delay of at least some three years
in bringing the prosecution that should have been brought in 1967,
or, at the very latest, early 1968."
"The Court, therefore, views that there has been a lack of
speedy prosecution in this case, and will grant the motion to
dismiss."
Ibid.
[
Footnote 2]
The Criminal Appeals Act, 18 U.S.C. § 3731 (1964 ed., Supp. V),
at the time of this appeal, provided in relevant part:
"An appeal may be taken by and on behalf of the United States
from the district courts direct to the Supreme Court of the United
States in all criminal cases in the following instances: "
"
* * * *"
"From the decision or judgment sustaining a motion in bar, when
the defendant has not been put in jeopardy."
The Omnibus Crime Control Act of 1970, § 14(a), 84 Stat. 1890,
amended the Criminal Appeals Act to read in pertinent part as
follows:
"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."
This amendment thus terminated the Court's appellate
jurisdiction of Government appeals from district court judgments in
federal criminal cases. Pending cases were not affected by the
amendment, however, since subsection (b) of § 14 provides:
"The amendments made by this section shall not apply with
respect to any criminal case begun in any district court before the
effective date of this section."
The Omnibus Crime Control Act of 1970 took effect on January 2,
1971; the appellees in this case were indicted on April 21,
1970.
[
Footnote 3]
401 U.S. 934 (1971).
[
Footnote 4]
Rule 48(b) provides that:
"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, or if there is
unnecessary delay in bringing a defendant to trial, the court may
dismiss the indictment, information or complaint."
In any event, it is doubtful that Rule 48(b) applies in the
circumstances of this case, where the indictment was the first
formal act in the criminal prosecution of these appellees.
See cases cited in
n 11,
infra.
[
Footnote 5]
The history of the speedy trial provision is sparse and
unilluminating with respect to the issue before us.
See F.
Heller, The Sixth Amendment to the Constitution of the United
States 31-32, 34 (1951); R. Rutland, The Birth of the Bill of
Rights, 1776-1791, p. 202 (1955); I. Brant, The Bill of Rights 223
(1965); Dumbauld, State Precedents for the Bill of Rights, 7
J.Pub.L. 323, 335 n. 91 (1958); Note, The Right to a Speedy Trial,
20 Stan.L.Rev. 476, 484 (1968).
[
Footnote 6]
A single case that antedates the Bill of Rights,
Rex v.
Robinson, 1 Black. W. 541, 96 Eng.Rep. 313 (K.B. 1765), and
three 19th century British cases,
Rex v. Marshall, 13 East
322, 104 Eng.Rep. 394 (K.B. 1811);
Regina v. Hext, 4
Jurist 339 (Q.B. 1840);
Regina v. Robin, 1 Cox's C. C. 114
(Somerset Winter Assizes 1844), are cited for the proposition that
the framers intended to protect against pre-indictment delay by
enacting the Sixth Amendment. These cases fail to establish a
definite rule that the Founders sought to constitutionalize,
however, and the Government's argument concerning the history of
the Sixth Amendment, while not dispositive, is more persuasive.
Brief for the United States 15-18. The Government points out that
the Habeas Corpus Act of 1679, 31 Car. 2, c. 2, provided for "more
speedy Relief of all Persons imprisoned for any such criminal or
supposed criminal Matters," and required that persons jailed for
felonies or treason be brought to trial upon their own motion
within two terms of court or be discharged on bail. The Act does
not allude to delay before arrest. Most of the States that ratified
the Bill of Rights had either adopted the British Act or passed a
similar law,
Petition of Provoo, 17 F.R.D. 183, 197 n. 6
(Md.),
aff'd sub nom. United States v. Provoo, 350 U.S.
857 (1955), and many of them had speedy trial provisions in their
own constitutions which were modeled on the British Act. Article 8
of the Virginia Declaration of Rights, which may have been the
model Madison used for the Sixth Amendment, Rutland,
supra, n 5, at 202,
secured the right to a speedy trial in "criminal prosecutions"
where "a man hath a right to demand the cause and nature of his
accusation."
See generally Heller,
supra,
n 5, at 23. Insofar as this
meager evidence is probative at all, it seems to imply that the
Sixth Amendment was designed to assure that those accused of crimes
would have their trial without undue delay.
[
Footnote 7]
This Court has interpreted the Sixth Amendment's speedy trial
guarantee in only a small number of cases.
See, e.g., Dickey v.
Florida, 398 U. S. 30
(1970);
Smith v. Hooey, 393 U. S. 374
(1969);
Klopfer v. North Carolina, 386 U.
S. 213 (1967);
United States v. Ewell,
383 U. S. 116
(1966);
Pollard v. United States, 352 U.
S. 354 (1957);
United States v. Provoo, supra,
n 6;
Beaver v.
Haubert, 198 U. S. 77
(1905).
See also Smith v. United States, 360 U. S.
1,
360 U. S. 10
(1959).
[
Footnote 8]
Most courts of appeals have recognized the Sixth Amendment right
to a speedy trial only after a prosecution has been formally
initiated or have held that the sole safeguard against
pre-indictment delay is the relevant statute of limitations:
United States v. Feinberg, 383 F.2d 60, 65 (CA2 1967);
Carlo v. United States, 286 F.2d 841, 846 (CA2),
cert.
denied, 366 U.S. 944 (1961);
Pitts v. North Carolina,
395 F.2d 182, 185 n. 3 (CA4 1968);
United States v.
Durham, 413 F.2d 10()3, 1004 (CA5 1969);
Kroll v. United
States, 433 F.2d 1282, 1286 (CA5 1970),
cert. denied,
402 U.S. 944 (1971);
United States v. Grayson, 416 F.2d
1073, 1076-1077 (CA5 1969);
United States v. Wilson, 342
F.2d 782, 783 (CA5),
cert. denied, 382 U.S. 860 (1965);
Donnell v. United States, 229 F.2d 560, 567 (CA5 1956);
Harlow v. United States, 301 F.2d 361, 366 (CA5),
cert. denied, 371 U.S. 814 (1962);
Bruce v. United
States, 351 F.2d 318, 320 (CA5 1965),
cert. denied,
384 U.S. 921 (1966);
Hoopengarner v. United States, 270
F.2d 465, 469 (CA6 1959);
United States v. Harris, 412
F.2d 471, 473 (CA6 1969);
Lothridge v. United States, 441
F.2d 919, 922 (CA6 1971);
Parker v. United States, 252
F.2d 680, 681 (CA6),
cert. denied, 356 U.S. 964 (1958);
Edmaiston v. Neil, 452 F.2d 494 (CA6 1971);
United
States v. Panczko, 367 F.2d 737, 738-739 (CA7 1966);
Terlikowski v. United States, 379 F.2d 501, 504 (CA8),
cert. denied, 389 U.S. 1008 (1967);
Foley v. United
States, 290 F.2d 562, 565 (CA8 1961);
Benson v. United
States, 402 F.2d 576, 579 (CA9 1968);
Venus v. United
States, 287 F.2d 304, 307 (CA9 1960),
rev'd per curiam on
other grounds, 368 U. S. 345
(1961);
D'Aquino v. United States, 192 F.2d 338, 350 (CA9
1951),
cert. denied, 343 U.S. 935 (1952);
United
States v. Reed, 413 F.2d 338, 340 (CA10 1969),
cert.
denied sub nom. Sartain v. United States, 397 U.S. 954 (1970);
Nickens v. United States, 116 U.S.App.D.C. 338, 340, 323
F.2d 808, 810 (1963),
cert. denied, 379 U.S. 905 (1964).
Some courts of appeals have stated that pre-indictment delay may be
cause for dismissal, but they have seemed to treat the question
primarily as one of due process (although the Sixth Amendment is
occasionally mentioned) and have required a showing of actual
prejudice:
Schlinsky v. United States, 379 F.2d 735, 737
(CA1 1967);
Fleming v. United States, 378 F.2d 502, 504
(CA1 1967);
United States v. Capaldo, 402 F.2d 821, 823
(CA2 1968),
cert. denied, 394 U.S. 989 (1969);
United
States v. Simmons, 338 F.2d 804, 806 (CA2 1964),
cert.
denied, 380 U.S. 983 (1965);
United States v.
Holiday, 319 F.2d 775, 776 (CA2 1963);
United States v.
Hammond, 360 F.2d 688, 689 (CA2 1966);
United States v.
Dickerson, 347 F.2d 783, 784 (CA2 1965);
United States v.
Rivera, 346 F.2d 942, 943 (CA2 1965);
United States v.
Sanchez, 361 F.2d 824, 825 (CA2 1966);
United States v.
Harbin, 377 F.2d 78, 79, 80 n. 1 (CA4 1967);
United States
v. Lee, 413 F.2d 910, 912-913 (CA7 1969),
cert.
denied, 396 U.S. 1022 (1970);
United States v. Napue,
401 F.2d 107, 114-115 (CA7 1968),
cert. denied, 393 U.S.
1024 (1969);
Lucas v. United States, 363 F.2d 500, 502
(CA9 1966);
Sanchez v. United States, 341 F.2d 225, 228 n.
3 (CA9),
cert. denied, 382 U.S. 856 (1965);
Acree v.
United States, 418 F.2d 427, 430 (CA10 1969). Although
Petition of Provoo, 17 F.R.D. 183 (Md.),
aff'd sub
nom. United States v. Provoo, 350 U.S. 857 (1955), is
sometimes cited for the proposition that pre-indictment delay will
justify dismissal, the District Court explicitly stated that it
considered this delay to be relevant only on the issue of whether
the defendant had been denied a fair trial. 17 F.R.D. at 202. In
Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259
(1956), a conviction was vacated where there had been a six-year
delay between the crime (housebreaking) and trial, 3 1/2 years of
which was a delay between crime and indictment; the defendant had
been in prison on another charge during this time, and the
defendant was substantially prejudiced in his ability to defend
against the housebreaking charge. The Court of Appeals stated:
"We do not rely on the mere lapse of time between the commission
of the offenses and the date of indictment, considered by itself,
for that is governed by the statute of limitations. It is the
combination of the factors set forth above [post-indictment delay,
prejudice] which motivates our decision."
Id. at 186, 238 F.2d at 262. In three instances,
district courts have held, however, that "delay" for Sixth
Amendment purposes must be computed from the time of the crime or
from the time when the Government considers the defendants' actions
criminal, and have dismissed indictments for excessive delay.
United States v. Parrott, 248 F.
Supp. 196 (DC 1965);
United States v.
Wahrer, 319 F.
Supp. 585 (Alaska 1970);
United States v.
Burke, 224 F. Supp.
41 (DC 1963). There is a unique line of cases in the District
of Columbia Circuit concerning pre-indictment delay in narcotics
cases where the Government relies on secret informers and
(frequently) on single transactions. These cases take a more rigid
stance against such delays, but they are based on the Court of
Appeals' purported supervisory jurisdiction and not on the Sixth
Amendment.
See, e.g., Ross v. United States, 121
U.S.App.D.C. 233, 238, 349 F.2d 210, 215 (1965);
Bey v. United
States, 121 U.S.App.D.C. 337, 350 F.2d 467 (1965);
Powell
v. United States, 122 U.S.App.D.C. 229, 231, 352 F.2d 705, 707
(1965);
Tynan v. United States, 126 U.S.App.D.C. 206, 208,
376 F.2d 761, 763 (1967) (explicitly limiting
Ross).
[
Footnote 9]
The provision the Court dealt with in
Cadarr was § 939
of the then District of Columbia Code adopted by Congress, 31 Stat.
1342. That section provided that, if any person "charged with a
criminal offense shall have been committed or held to bail," the
grand jury must act within a specified time or the accused would be
set free. The provision remains in the present code as § 23-102, 84
Stat. 605, and then, as now, does not purport to reach behind the
time of charge, commitment, or holding for bail.
[
Footnote 10]
See, e.g., Ill.Rev.Stat., c. 38, § 103-5(a) (1969);
Pa.Stat.Ann., Tit.19, § 781 (1964); Cal.Pen.Code § 1382 (1970);
Va.Code Ann. § 19.1-191 (1960); Nev.Rev.Stat. § 178.556 (1967). A
more comprehensive list of such state statutes appears in American
Bar Association Project on Standards for Criminal Justice, Speedy
Trial 14-15 (Approved Draft 1968). The Administrative Board of the
Judicial Conference of the State of New York recently promulgated
rules on trial delay and detention which cover defendants who are
"held in custody" and which begin computation of delay periods from
the date of arrest. Rule 29.1, New York Law Journal, April 30,
1971, p. 1, col. 6.
See generally Note, The Right to a
Speedy Trial, 20 Stan.L.Rev. 476 (1968); Note, Pre-Arrest Delay:
Evolving Due Process Standards, 43 N.Y.U.L.Rev. 722 (1968); Note,
Constitutional Limits on Pre-Arrest Delay, 51 Iowa L.Rev. 670
(1966); Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev.
1587 (1965); Note, Justice Overdue -- Speedy Trial for the
Potential Defendant, 5 Stan.L.Rev. 95 (1952).
The rules that the Second Circuit en banc recently adopted in
United States ex rel. Frizer v. McMann, 437 F.2d 1312 (CA2
1971), which appear in Appendix, 28 U.S.C.A. (May 1971 Supp.),
require trial within a specified period but apply to "all persons
held in jail prior to trial" and "defendants" in "all other
criminal cases." Rule 2. Rule 4 provides that:
"In all cases the government must be ready for trial within six
months from the date of the arrest, service of summons, detention,
or the filing of a complaint or of a formal charge upon which the
defendant is to be tried (other than a sealed indictment),
whichever is earliest."
See generally Comment, Speedy Trials and the Second
Circuit Rules Regarding Prompt Disposition of Criminal Cases, 71
Col.L.Rev. 1059 (1971).
Cf. also S. 895, 92d Cong., 1st Sess., a bill intended
"[t]o give effect to the sixth amendment right to a speedy trial
for persons charged with offenses against the United States." The
protections of the bill are engaged
"within sixty days from the date the defendant is arrested or a
summons is issued, except that, if an information or indictment is
filed, then within sixty days from the date of such filing."
§ 3161(b)(1).
[
Footnote 11]
Nickens v. United States, supra, at 339, 323 F.2d at
809;
Harlow v. United States, supra; Hoopengarner v. United
States, supra; United States v. Hoffa, 205 F.
Supp. 710, 720-721 (SD Fla.1962).
[
Footnote 12]
In its Standards Relating to Speedy Trial,
n 10,
supra, at 6, the ABA defined the
time at which the beginning of the delay period should be computed
as
"the date the charge is filed, except that, if the defendant has
been continuously held in custody or on bail or recognizance until
that date to answer for the same crime or a crime based on the same
conduct or arising from the same criminal episode, then the time
for trial should commence running from the date he was held to
answer."
Rule 2.2(a).
Under the ABA Standards, after a defendant is charged, it is
contemplated that his right to a speedy trial would be measured by
a statutory time period excluding necessary and other justifiable
delays; there is no necessity to allege or show prejudice to the
defense. Rule 2.1,
ibid.
[
Footnote 13]
Extending a Sixth Amendment right to a period prior to
indictment or holding to answer would also create procedural
problems:
"[W]hile other rights may be violated by delay in arrest or
charge, it does not follow that the time for trial should be
counted from any date of inaction preceding filing of the charge or
holding the defendant to answer. To recognize a general speedy
trial right commencing as of the time arrest or charging was
possible would have unfortunate consequences for the operation of
the criminal justice system. Allowing inquiry into when the police
could have arrested or when the prosecutor could have charged would
raise difficult problems of proof. As one court said, 'the Court
would be engaged in lengthy hearings in every case to determine
whether or not the prosecuting authorities had proceeded diligently
or otherwise.' [
United States v. Port, Crim. No. 33162,
(ND Cal., June 2, 1952). Quoted in Note, Justice Overdue -- Speedy
Trial for the Potential Defendant, 5 Stan.L.Rev. 95, 101-102, n.
34.]"
Commentary to Rule 2.2(a), Speedy Trial,
n 10,
supra, at 23.
[
Footnote 14]
The Court has indicated that criminal statutes of limitation are
to be liberally interpreted in favor of repose.
United States
v. Habig, 390 U. S. 222,
390 U. S. 227
(1968). The policies behind civil statutes of limitation are in
many ways similar. They "represent a public policy about the
privilege to litigate,"
Chase Securities Corp. v.
Donaldson, 325 U. S. 304,
325 U. S. 314
(1945), and their underlying rationale is
"to encourage promptness in the bringing of actions, that the
parties shall not suffer by loss of evidence from death or
disappearance of witnesses, destruction of documents or failure of
memory."
Missouri, Kansas & Texas R. Co. v. Harriman,
227 U. S. 657,
227 U. S. 672
(1913). Such statutes "are founded upon the general experience of
mankind that claims, which are valid, are not usually allowed to
remain neglected,"
Riddlesbarger v. Hartford
Insurance Co., 7 Wall. 386,
74 U. S. 390
(1869), they
"promote justice by preventing surprises through the revival of
claims that have been allowed to slumber until evidence has been
lost, memories have faded, and witnesses have disappeared,"
Order of Railroad Telegraphers v. Railway Express
Agency, 321 U. S. 342,
321 U. S.
348-349 (1944), and they
"are primarily designed to assure fairness to defendants. . . .
[C]ourts ought to be relieved of the burden of trying stale claims
when a plaintiff has slept on his rights."
Burnett v. New York Central R. Co., 380 U.
S. 424,
380 U. S. 428
(1965). As in the criminal law area, such statutes represent a
legislative judgment about the balance of equities in a situation
involving the tardy assertion of otherwise valid rights:
"The theory is that, even if one has a just claim, it is unjust
not to put the adversary on notice to defend within the period of
limitation and that the right to be free of stale claims in time
comes to prevail over the right to prosecute them."
Order of Railroad Telegrapher v. Railway Express Agency,
supra, at
321 U. S. 349.
[
Footnote 15]
"Except as otherwise expressly provided by law, no person shall
be prosecuted, tried, or punished for any offense, not capital,
unless the indictment is found or the information is instituted
within five years next after such offense shall have been
committed."
18 U.S.C. § 3282.
[
Footnote 16]
Brief for the United States 227.
[
Footnote 17]
A number of courts of appeals have considered the question.
See, e.g., Benson v. United States, 402 F.2d at 580;
Schlinsky v. United States, supra; United States v. Capaldo,
supra; United States v. Lee, 413 F.2d at 913;
United
States v. Wilson, supra; United States v. Harbin, 377 F.2d at
80;
Acree v. United States, supra; Nickens v. United States,
supra, at 340 n. 2, 323 F.2d at 810 n. 2.
[
Footnote 18]
Cf. Hoffa v. United States, 385 U.
S. 293,
385 U. S. 310
(1966):
"There is no constitutional right to be arrested. The police are
not required to guess at their peril the precise moment at which
they have probable cause to arrest a suspect, risking a violation
of the Fourth Amendment if they act too soon, and a violation of
the Sixth Amendment if they wait too long. Law enforcement officers
are under no constitutional duty to call a halt to a criminal
investigation the moment they have the minimum evidence to
establish probable cause, a quantum of evidence which may fall far
short of the amount necessary to support a criminal
conviction."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, concurring in the result.
I assume that, if the three-year delay in this case had occurred
after the indictment had been returned, the right to a
speedy trial would have been impaired and the indictment would have
to be dismissed. I disagree with the Court that the guarantee does
not apply if the delay was at the pre-indictment stage of a
case.
From March 15, 1965, to February 6, 1967, appellees, acting
through Allied Enterprises, Inc., sold and installed home intercom,
fire control, and burglar detection devices in the District of
Columbia metropolitan area. Their business endeavors were soon met
with a spate of lawsuits seeking recovery for consumer fraud and,
on February 6, 1967, their brief career was ended by a cease and
desist order entered by the Federal Trade Commission. Public
notoriety continued to surround appellees' activities and, in a
series of articles appearing in the Washington Post in September
and October of 1967, their business was mentioned as being under
investigation by the United States Attorney. The special grand jury
that was impaneled on October 9, 1967, to investigate consumer
fraud did not, however, return an indictment against
Page 404 U. S. 327
appellees. Sometime between the summer of 1968 and January,
1969, appellees delivered their business records to the United
States Attorney, but an indictment was not returned against them
until April 21, 1970. The indictment charged some 19 counts of mail
fraud, wire fraud, and transportation of falsely made securities in
interstate commerce, all between September 3, 1965, and January 19,
1966.
Appellees moved
"to dismiss the indictment for failure to commence prosecution .
. . within such time as to [satisfy the] . . . rights to due
process of law and to a speedy trial. . . ."
The United States Attorney sought to excuse the delay, alleging
that his office had been understaffed at the time and that it had
given priority to other types of crimes. The District Court granted
appellees' motion, [
Footnote 2/1]
and the United States appealed. 18 U.S.C. § 3731 (1964 ed., Supp.
V).
The majority says
"that it is either a formal indictment or information or else
the actual restraints imposed by
Page 404 U. S. 328
arrest and holding to answer a criminal charge that engage the
particular protections of the speedy trial provision. . . ."
Ante at
404 U. S.
320.
The Sixth Amendment, to be sure, states that "the accused shall
enjoy the right to a speedy and public trial." But the words "the
accused," as I understand them in their Sixth Amendment setting,
mean only the person who has standing to complain of prosecutorial
delay in seeking an indictment or filing an information. The right
to a speedy trial is the right to be brought to trial speedily
which would seem to be as relevant to pre-indictment delays as it
is to post-indictment delays. Much is made of the history of the
Sixth Amendment as indicating that the speedy trial guarantee had
no application to pre-prosecution delays.
There are two answers to that proposition. First, British courts
historically did consider delay as a condition to issuance of an
information.
Lord Mansfield held in
Rex v. Robinson, 1 Black.W. 541,
542, 96 Eng.Rep. 313 (K.B. 1765), that the issuance of an
information was subject to time limitations: "If delayed, the delay
must be reasonably accounted for." In
Regina v. Hext, 4
Jurist 339 (Q.B. 1840), an information was refused where a whole
term of court had passed since the alleged assault took place.
Accord: Rex v. Marshall, 13 East 322, 104 Eng.Rep. 394
(K.B. 1811).
Baron Alderson said in
Regina v. Robins, 1 Cox's C.C.
114 (Somerset Winter Assizes 1844), where there was a two-year
delay in making a charge of bestiality:
"It is monstrous to put a man on his trial after such a lapse of
time. How can he account for his conduct so far back? If you accuse
a man of a crime the next day, he may be enabled to bring forward
his servants and family to say where he was and what he was about
at the time; but if the
Page 404 U. S. 329
charge be not preferred for a year or more, how can he clear
himself? No man's life would be safe if such a prosecution were
permitted. It would be very unjust to put him on his trial."
Second, and more basically, the 18th century criminal
prosecution at the common law was, in general, commenced in a
completely different way from that with which we are familiar
today. By the common law of England which was brought to the
American colonies, the ordinary criminal prosecution was conducted
by a private prosecutor, in the name of the King. In case the
victim of the crime or someone interested came forward to
prosecute, he retained his own counsel and had charge of the case
as in the usual civil proceeding.
See G. Dession, Criminal
Law, Administration and Public Order 356 (1948). Procedurally, the
criminal prosecution was commenced by the filing of a lawsuit, and
thereafter the filing of an application for criminal prosecution or
rule nisi or similar procedure calling for the defendant to show
cause why he should not be imprisoned. The English common law, with
which the Framers were familiar, conceived of a criminal
prosecution as being commenced prior to indictment. Thus, in that
setting, the individual charged as the defendant in a criminal
proceeding could and would be an "accused" prior to formal
indictment. [
Footnote 2/2]
Page 404 U. S. 330
The right to a speedy trial, which we have characterized "as
fundamental as any of the rights secured by the Sixth Amendment,"
Klopfer v. North Carolina, 386 U.
S. 213,
386 U. S. 223,
protects several demands of criminal justice: the prevention of
undue delay and oppressive incarceration prior to trial; the
reduction of anxiety and concern accompanying public accusation;
and limiting the possibilities that long delay will impair the
ability of an accused to defend himself.
Smith v. Hooey,
393 U. S. 374,
393 U. S.
377-378 (1969).
See also People v. Prosser, 309
N.Y. 353, 356, 130 N.E.2d 891, 894 (1955). The right also serves
broader interests:
"The Speedy Trial Clause protects societal interests, as well as
those of the accused. The public is concerned with the effective
prosecution of criminal cases, both to restrain those guilty of
crime and to deter those contemplating it. Just as delay may impair
the ability of the accused to defend himself, so it may reduce the
capacity of the government to prove its case.
See Ponzi v.
Fessenden, 258 U. S. 254,
258 U. S.
264 (1922). Moreover, while awaiting trial, an accused
who is at large may become a fugitive from justice or commit other
criminal acts. And the greater the lapse of time between commission
of an offense and the conviction of the offender, the less the
deterrent value of his conviction."
Dickey v. Florida, 398 U. S. 30,
398 U. S. 42
(1970) (BRENNAN, J., concurring).
At least some of these values served by the right to a speedy
trial are not unique to any particular stage of the criminal
proceeding.
See Note, 43 N.Y.U.L.Rev. 722, 725-726 (1968);
Note, 77 Yale L.J. 767, 780-783 (1968); Comment, 11 Ariz.L.Rev.
770, 774-776 (1969). Undue delay may be as offensive to the right
to a speedy trial before as after an indictment or information. The
anxiety
Page 404 U. S. 331
and concern attendant on public accusation may weigh more
heavily upon an individual who has not yet been formally indicted
or arrested for, to him, exoneration by a jury of his peers may be
only a vague possibility lurking in the distant future. Indeed, the
protection underlying the right to a speedy trial may be denied
when a citizen is damned by clandestine innuendo and never given
the chance promptly to defend himself in a court of law. Those who
are accused of crime but never tried may lose their jobs or their
positions of responsibility, or become outcasts in their
communities.
The impairment of the ability to defend oneself may become acute
because of delays in the pre-indictment stage. Those delays may
result in the loss of alibi witnesses, the destruction of material
evidence, and the blurring of memories. At least when a person has
been accused of a specific crime, he can devote his powers of
recall to the events surrounding the alleged occurrences. When
there is no formal accusation, however, the State may proceed
methodically to build its case while the prospective defendant
proceeds to lose his. [
Footnote
2/3]
The duty which the Sixth Amendment places on Government
officials to proceed expeditiously with criminal
Page 404 U. S. 332
prosecutions would have little meaning if those officials could
determine when that duty was to commence. To be sure, "[t]he right
of a speedy trial is necessarily relative. It is consistent with
delays and depends upon circumstances."
Beavers v.
Haubert, 198 U. S. 77,
198 U. S. 87
(1905). But it is precisely because this right is relative that we
should draw the line so as not to condone illegitimate delays
whether at the pre- or the post-indictment stage. [
Footnote 2/4]
Our decisions do not support the limitations of the right to a
speedy trial adopted in the majority's conclusion that "the [Sixth]
amendment [does not extend] to
Page 404 U. S. 333
the period prior to arrest."
Ante at
404 U. S. 321.
In
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 444
(1966), we held that it was necessary for the police to advise of
the right to counsel in the pre-indictment situation where "a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." That case, like the
present one, dealt with one of the rights enumerated in the Sixth
Amendment to which an "accused" was entitled. We were not then
concerned with whether an "arrest" or an "indictment" was necessary
for a person to be an "accused," and thus entitled to Sixth
Amendment protections. We looked instead to the nature of the event
and its effect the rights involved. We applied the
Miranda
rule even though there was no "arrest," but only an examination of
the suspect while he was in his bed at his boarding house, the
presence of the officers making him "in custody."
Orozco v.
Texas, 394 U. S. 324,
394 U. S. 327.
We should follow the same approach here and hold that the right to
a speedy trial is denied if there were years of unexplained and
inexcusable pre-indictment delay.
Dickey v. Florida, supra, similarly demonstrates the
wisdom of avoiding today's mechanical approach to the application
of basic constitutional guarantees. While he was in custody on an
unrelated federal charge, the petitioner was identified by a
witness to the robbery. Petitioner remained in federal custody, but
the State did not seek to prosecute him until September 1, 1967,
when he moved to dismiss the detainer warrant which had been lodged
against him. An information was then filed on December 15, 1967,
and petitioner was tried on February 13, 1968. Although the trial
took place less than two months after the filing of the
information, we held that there had been a denial of the right to a
speedy trial because of the delay of more than seven years between
the crime and the information.
Page 404 U. S. 334
In a concurring opinion, MR. JUSTICE BRENNAN discussed the
broader questions raised by that case:
"When is governmental delay reasonable? Clearly, a deliberate
attempt by the government to use delay to harm the accused, or
governmental delay that is 'purposeful or oppressive,' is
unjustifiable. . . . The same may be true of any governmental delay
that is unnecessary, whether intentional or negligent in origin. A
negligent failure by the government to ensure speedy trial is
virtually as damaging to the interests protected by the right a an
intentional failure; when negligence is the cause, the only
interest necessarily unaffected is our common concern to prevent
deliberate misuse of the criminal process by public officials.
Thus, the crucial question in determining the legitimacy of
governmental delay may be whether it might reasonably have been
avoided -- whether it was unnecessary. To determine the necessity
for governmental delay, it would seem important to consider, on the
one hand, the intrinsic importance of the reason for the delay,
and, on the other, the length of the delay and its potential for
prejudice to interests protected by the speedy trial safeguard. For
a trivial objective, almost any delay could be reasonably avoided.
Similarly, lengthy delay, even in the interest of realizing an
important objective, would be suspect."
398 U.S. at
398 U. S. 51-52.
In the present case, two to three years elapsed between the time
the District Court found that the charges could and should have
been brought and the actual return of the indictment. The
justifications offered were that the United States Attorney's
office was "not sufficiently staffed to proceed as expeditiously"
as desirable, [
Footnote 2/5]
and
Page 404 U. S. 335
that priority had been given to other cases. Appellees say that
the present indictment embraces counts such as an allegedly
fraudulent telephone conversation made on December 16, 1965. They
argue that there is a great likelihood that the recollection of
such events will be blurred or erased by the frailties of the human
memory. If this were a simpler crime, I think the British precedent
which I have cited would warrant dismissal of the indictment
because of the speedy trial guarantee of the Sixth Amendment. But
we know from experience that the nature of the crime charged here
often has vast interstate aspects, the victims are often widely
scattered and hard to locate, and the reconstruction of the total
scheme of the fraudulent plan takes time. If we applied the simpler
rule that was applied in simpler days, we would be giving
extraordinary advantages to organized crime as well as others who
use a far-flung complicated network to perform their illegal
activities. I think a three-year delay even in that kind of case
goes to the edge of a permissible delay. But on the bare bones of
this record I hesitate to say that the guarantee of a speedy trial
has been violated. Unless appellees on remand demonstrate actual
prejudice, I would agree that the prosecution might go forward.
Hence, I concur in the result.
[
Footnote 2/1]
In dismissing the indictment, the District Court said:
"It appears to the Court that the matters complained of occurred
between March, 1965, and January, 1966. It further appears that
these matters were known from early 1967 or a matter of common
knowledge in late 1967. There appears no reason why a three-year
delay from 1967 was justified by the necessity of research and
examination delving into the various transactions, they could have
been discovered and handled much, much sooner, certainly probably
during the year 1967 or, at the latest, early 1968."
"The defendants have been indicted on 19 counts, each of which I
believe carries a ten-year sentence, each of which is a separate,
distinct transaction which would justify consecutive sentences, and
by the very nature of this outrageous scheme if the allegations
could be believed, the ability to remember, to build up in one's
recollection, to produce the necessary defense, is bound to have
been seriously prejudiced by the delay of at least some three years
in bringing the prosecution that should have been brought in 1967,
or, at the very latest, early 1968."
"The Court, therefore, views that there has been a lack of
speedy prosecution in this case, and will grant the motion to
dismiss."
[
Footnote 2/2]
See 1 J. Stephen, History of the Criminal Law of
England 493496 (1883):
"In England, and, so far as I know, in England and some English
colonies alone, the prosecution of offences is left entirely to
private persons, or to public officers who act in their capacity of
private persons and who have hardly any legal powers beyond those
which belong to private persons."
Id. at 493.
For an annotated version of the inception and evolution of the
British system,
see M. Schwartz, Cases and Materials on
Professional Responsibility and the Administration of Criminal
Justice 2-3 (Nat. Council on Legal Clinics 1961).
[
Footnote 2/3]
Judge Wright recognized this in his concurring opinion in
Nickens v. United States, 116 U.S.App.D.C. 338, 343, 323
F.2d 808, 813 (1963):
"Indeed, a suspect may be at a special disadvantage when
complaint or indictment, or arrest, is purposefully delayed. With
no knowledge that criminal charges are to be brought against him,
an innocent man has no reason to fix in his memory the happenings
on the day of the alleged crime. Memory grows dim with the passage
of time. Witnesses disappear. With each day, the accused becomes
less able to make out his defense. If, during the delay, the
Government's case is already in its hands, the balance of advantage
shifts more in favor of the Government the more the Government
lags. Under our constitutional system such a tactic is not
available to police and prosecutors."
[
Footnote 2/4]
"[A] pre-prosecution delay can result in the loss of physical
evidence, the unavailability of potential witnesses, and the
impairment of the ability of the prospective defendant and his
witnesses to remember the events in question. Indeed, the
possibility of such prejudice may be greater in pre-prosecution
delay cases than in post indictment delay cases. The typical
prospective defendant is probably unaware of the fact that criminal
charges will eventually be brought against him. Thus, he will have
no reason to take measures to preserve his memory or the memories
of his witnesses."
"The importance of these considerations becomes clear when
measured against the state's ability to collect and document
evidence as it carries out its criminal investigation, thereby
preserving its probative firepower until the time of eventual
arrest."
"The causal factor also can be present in a pre-prosecution
delay. Many pre-prosecution delays are caused by the reluctance of
the government to terminate an undercover investigation. If the
knowledge obtained by an undercover agent is used as the basis for
an arrest or for the issuance of a complaint, the identity of the
agent may be exposed and his effectiveness destroyed. Consequently,
the government will often delay arresting an individual against
whom its case is complete if the agent is still obtaining evidence
against other individuals. In such a situation, the government has
made a deliberate choice for a supposed advantage. While this
advantage is arguably not sought
vis-a-vis the defendant
asserting the speedy trial claim, the fact remains that the
advantage arises out of a deliberate and avoidable choice on the
part of law enforcement authorities."
Note, 20 Stan.L.Rev. 476, 489.
[
Footnote 2/5]
The District Judge pointed out that the then Assistant Attorney
General had indicated "that he didn't need any more help," and that
the United States Attorney retreated from this factual
assertion.