UNITED STATES OF AMERICA, Plaintiff-Appellant,
vs.
KENNETH MOSES LOUD HAWK, RUSS JAMES
REDNER, DENNIS JAMES BANKS, and DARLENE PEARL NICHOLS, aka KaMOOK BANKS,
Defendants-Appellees
No. 83-3067
United States Court Of Appeals For
The Ninth Circuit
741 F.2d 1184, 1984 U.S. App. Decision
August 30, 1984, Decided
Appeal from the United States District
Court for the District of Oregon. The Honorable James A. Redden, District
Judge, Presiding.
Kenneth S. Stern, Esq., Milwaukie, Oregon, for Appellees. Charles Turner,
AUSA, Portland, Oregon, for Appellant.
Wallace and Canby, Circuit Judges, and Craig District Judge.*
Wallace, Circuit Judge, dissenting.
[F.2d
1187] CANBY, Circuit Judge
This is the third interlocutory appeal
arising from the government's efforts to prosecute these defendants. Although
it has been more than eight years since defendants were originally arrested
and indicted, they still have not been brought to trial so that their guilt
or innocence may be determined. We are now asked to decide whether the
delay in bringing defendants to trial has violated their constitutional
right to a speedy trial.
I.
The facts giving rise to the present
charges and the first two appeals in this case are adequately set forth
in our two previous opinions. See United States v. Banks, 682 F.2d
841, 842-44 (9th Cir. 1982), cert. denied, 459 U.S. 1117, 103 S.
Ct. 755, 74 L. Ed. 2d 972 (1983); United States v. Loud Hawk, 628
F.2d 1139, 1141-43 (9th Cir. 1979) (en banc), cert. denied, 445
U.S. 917, 63 L. Ed. 2d 602, 100 S. Ct. 1279 (1980). We merely summarize
them here.
Defendants were arrested on November
14, 1975, after being stopped by the Oregon State Police on the basis of
information supplied by the FBI. A search of defendants' vehicles pursuant
to a valid search warrant uncovered several firearms, a quantity of what
the police believed to be dynamite, and apparatus for the manufacture of
time bombs. Rather than preserving the dynamite or transferring it to a
place of safekeeping, the state authorities decided to destroy it without
notification to defendants.
On December 22, 1975, a federal grand
jury returned a five-count superseding indictment. The first three counts
related to defendants' alleged possession of dynamite (the dynamite counts),
and the fourth and fifth charged defendants with unlawful possession of
firearms (the nondynamite counts). Prior to trial, defendants successfully
moved for suppression of any evidence relating to the destroyed dynamite.
The government sought immediate review of the suppression order under 18
U.S.C. § 3731. The district court, however, denied the government's
request for a continuance to permit it to pursue its appeal of the suppression
order, and ordered that trial proceed as scheduled on May 12, 1976. When
the day for trial arrived, the government announced it was not ready. Because
of the unwillingness of the government to proceed to trial, the district
court, acting pursuant to Fed. R. Crim. P. 48(b), dismissed the indictment
with prejudice for unnecessary delay. The government filed its notice of
appeal in open court on the same day.
We consolidated the two appeals, and
a panel of this court initially affirmed the dismissal. However, at the
instance of the government, we voted to take the appeal en banc and reversed
the suppression order. In analyzing the propriety of the district court's
order dismissing the indictment, we examined the dynamite counts and the
nondynamite counts separately. As to the former, we held that the delay
necessitated by the government's appeal of the suppression order had not
been "unnecessary" for purposes of Rule 48(b). United States v. Loud
Hawk, 628 F.2d at 1149-50. Rather, we reasoned that the delay was necessary
to the meaningful exercise of the government's statutory right to appeal
the suppression order. As to the nondynamite counts, however, we held that
the delay had been "unnecessary" because the suppression of evidence relating
to dynamite had nothing to do with the nondynamite charges, which could
have proceeded to trial. Id. at 1150. Nevertheless, we decided that
dismissal of the nondynamite counts with prejudice was inappropriate
because the government had not been forewarned that dismissal with prejudice
would result from a failure to proceed with the prosecution. Id.
at 1151. Accordingly, we ordered denial of defendants' motion to suppress,
reinstatement of the dynamite counts, and reconsideration of the dismissal
of the nondynamite counts insofar as the dismissal was with prejudice.
Following denial of certiorari, our mandate issued on March 12, 1980, three
years and ten months after the indictment had been dismissed [F.2d 1188]
by the district court and appeal taken therefrom by the government.
On remand, the district court, at the
urging of defendants, ruled that the nondynamite counts could not simply
be reinstated. Consequently, the government was compelled to go back before
the grand jury and seek a second superseding indictment. The indictment
which resulted was returned on June 18, 1980. It again charged defendants
with four of the five original counts in the first superseding indictment
and in addition charged defendants with three new counts. The addition
of these new counts precipitated a defense motion to dismiss the indictment
for vindictive prosecution. On August 8, 1980, the district court granted
the motion as to KaMook Banks and dismissed all counts in the indictment
pertaining to her. The motion as to the other defendants, however, was
denied. The government appealed the dismissal as to KaMook Banks, and the
other defendants appealed the denial of the motion as to them. We reversed
the dismissal as to KaMook Banks, except that we upheld the dismissal of
the added count; we ordered all but the added count reinstatement. United
States v. Banks, 682 F.2d at 846. As to the other defendants, we dismissed
the appeal for lack of jurisdiction. Id. at 844. We denied defendant's
request for rehearing, and the Supreme Court refused certiorari. Our mandate
issued on January 31, 1983, two years, five months after appeal was taken
from the district court's order and seven years, two months, and seventeen
days after defendants were arrested.
Trial was rescheduled to being on April
11, 1983. The government, however, successfully obtained a continuance,
over the objection of defendants, until May 3, 1983. Subsequently, the
court on its own motion continued the trial date until May 23, 1983. The
trial was then rescheduled for June 13, 1983, for reasons not known to
this court. Defendants objected to each of these continuances.
On March 21, 1983, the defendants moved
for dismissal on the ground that the delay in bringing them to trial violated
their right to a speedy trial guaranteed by the sixth amendment. By order
of May 20, 1983, the district court granted defendants' motion and dismissed
the indictment with prejudice. It concluded that the appropriate period
within which to assess whether defendants had been denied their speedy
trial right was the entire ninety-one month period between November 14,
1975 when defendants were arrested and June 13, 1983 when trial was finally
set to begin. It reasoned that the entire period of delay should be analyzed
under the speedy trial clause of the sixth amendment, rather than under
the due process clause of the fifth amendment, because at all times during
this period defendants were "accused" persons. Finding that the majority
of the delay in this case was attributable to the two interlocutory appeals,
the district court concluded that the seventy-five months consumed by the
two appeals must be weighed against the government. Moreover, it found
that defendants had adequately asserted their right to a speedy trial,
and that they had been prejudiced by having to live with unresolved criminal
charges for more than seven and one-half years and by impairment of their
ability to defend themselves.
II.
Although the right to a speedy trial
asserted by defendants is "one of the most basic rights preserved by our
Constitution," Klopfer v. North Carolina, 386 U.S. 213, 226, 18
L. Ed. 2d 1, 87 S. Ct. 988 (1967), no per se test has been devised to determine
when the right has been violated. Instead, we must apply a rather flexible
"functional approach" that attempts to give proper weight to the various
interests at stake. Barker v. Wingo, 407 U.S. 514, 522, 33
L. Ed. 2d 101, 92 S. Ct. 2182 (1972). The primary factors to be considered
are the length of the delay, the reasons for the delay, the degree to which
defendants asserted their right to a speedy trial, and the extent of prejudice
to the [F.2d 1189] defendants caused by the delay. Id. at 530-33.
A. Length of Delay
In order to determine the length of
delay for sixth amendment purposes, we must know when to begin counting
and when, if ever, to interrupt counting. It is clear enough that the speedy
trial clause does not apply "before a defendant is indicted, arrested,
or otherwise officially accused." United States v. MacDonald, 456
U.S. 1, 6, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982). We begin our count,
therefore, with defendants' arrest on November 14, 1975. The question then
is whether, and for what purposes, we must interrupt it.
The government first contends that
we must exclude the periods during the interlocutory appeals when the indictments
had been dismissed and not yet reinstated. During the first interlocutory
appeal, the indictment was dismissed as to all defendants on May 12, 1976,
and a superseding indictment was not returned until June 18, 1980. During
the second interlocutory appeal, the superseding indictment was dismissed
as to KaMook Banks on August 8, 1980, and was not reinstated as to her
until our mandate issued on January 31, 1983.1
The government contends that these periods must be excluded on the authority
of United States v. MacDonald, 456 U.S. 1, 71 L. Ed. 2d 696, 102
S. Ct. 1497 (1982).
In MacDonald, the Supreme Court
held that the sixth amendment speedy trial clause did not apply to delay
during the period after charges were formally dropped by the government
and before renewed charges were brought. It based this holding on the purposes
of the sixth amendment, in contrast to those of the due process clause
of the fifth amendment:
The Sixth Amendment right to a speedy
trial is . . . . not primarily intended to prevent prejudice to the defense
caused by the passage of time; that interest is protected primarily by
the Due Process Clause and by statutes of limitations. 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.
Id. at 8. Because the formal
dropping of charges by the government removes the disabilities with which
the sixth amendment is concerned, it is no longer appropriate to apply
that amendment. Id. at 8-9. Delay while no charges are pending is
similar to delay prior to indictment, and is to be measured by the due
process standard applicable to pre-indictment delay. Id. Due process
is not violated unless the delay has caused actual prejudice to the conduct
of the defense. United States v. Marion, 404 U.S. 307, 325-26, 30
L. Ed. 2d 468, 92 S. Ct. 455 (1971). No such prejudice need be demonstrated
as an essential prerequisite of a sixth amendment claim. Moore v. Arizona,
414 U.S. 25, 26, 38 L. Ed. 2d 183, 94 S. Ct. 188 (1973) (per curiam).
We accept, of course, these controlling
principles, but we do not find them applicable here because our case is
different from MacDonald. When the government voluntarily dismisses
pending charges, "a citizen suffers no restraints on his liberty and is
[no longer] the subject of public accusation." MacDonald, 456 U.S.
at 9 (quoting Marion, 404 U.S. at 321). The situation is quite the
contrary in the present case, where the indictments were dismissed over
the government's opposition and the government vigorously and successfully
sought to have them reinstated on appeal. While those appeals were pending,
the defendants were subject to precisely [F.2d 1190] the burdens
that the sixth amendment was designed to protect against.
It is true that defendants were not
incarcerated or subjected to other restrictions on their liberty during
the time when the indictments had been dismissed. They were, however, subject
to the imposition of such restraints at any time. Their freedom was far
more precarious than that of a person merely subject to investigation but
not indicted.
Most important, however, is the fact
that defendants' interest in minimizing "the disruption of life caused
by arrest and the presence of unresolved criminal charges," id. at 8,
continued unabated during the interlocutory appeals. A formal accusation,
as by arrest, "may seriously interfere with the defendant's liberty, whether
he is free on bail or not, and . . . may disrupt his employment, drain
his financial resources, curtail his associations, subject him to public
obliquy, and create anxiety in him, his family and his friends." United
States v. Marion, 404 U.S. at 320. The public accusation in this case
clearly maintained its force while the government prosecuted the appeals
in order to reinstate the charges against the defendants. The appeals unequivocally
stated the government's intention to continue the prosecution and asserted
its legal grounds for doing so. Because the government's appeals after
dismissal of the indictment bore the indicia and imposed the disabilities
of continued, formal public accusation, we cannot escape the conclusion
that the defendants remained "accused" during the periods when the government
was appealing the dismissals of their indictment.2
The government next contends that,
in any event, the period consumed by the government's own interlocutory
appeals should be excluded, because otherwise the government's "absolute
right" to appeal would be impaired. The government grounds this right in
18 U.S.C. § 3731, which authorizes appeals by the government from
district court orders dismissing indictments or granting motions to suppress
evidence.
Certainly the government is entitled
to protection of its statutory right of appeal. See United States v.
Booth, 669 F.2d 1231, 1241 (9th Cir. 1981). In our view, however, it
accords too little respect to the right of speedy trial secured by the
sixth amendment to exclude entirely from consideration the time spent on
the government's interlocutory appeals. If such appeals are not even counted
in the period of delay, then "speedy" trials could be postponed for years
or decades, no matter how onerous the burdens borne by the defendants in
the meantime, and the sixth amendment would not even be implicated. We
reject such a per se approach to the problem of delay caused by interlocutory
appeals.
It is true that two courts of appeals
seem to have adopted the government's position. United States v. Jackson,
508 F.2d 1001, 1004-05 (7th Cir. 1975); United States v. Bishton,
150 U.S. App. D.C. 51, 463 F.2d 887, 890 (D.C. Cir. 1972). Those cases
did, however, admit of an exception when the government's appeal was taken
in bad faith, by neglect, or for purposes of delay. Id.; see United
States v. Saintil, 705 F.2d 415, 418-19 (11th Cir. 1983). The periods
of delay involved were also much shorter than those present here. Even
so, it seems analytically more sound to count the time taken by the government's
appeal within the period of delay, and then to assess the justifications
for that appeal under the second step of the Barker v. Wingo analysis:
that dealing with "reasons for the delay." The importance of protecting
the government's statutory right of appeal in a given case can be weighed
and ultimately placed [F.2d 1191] in the balance against the damage
to defendants' sixth amendment interest. This latter, more flexible methodology
appears to have been the one selected by the Fifth Circuit in United
States v. Herman, 576 F.2d 1139, 1146 (5th Cir. 1978), and we prefer it.3
We therefore calculate the delay in
this case as ninety months, the period from the arrest of defendants until
their indictment was last dismissed on May 20, 1983,4
some three weeks before their trial was scheduled to begin. Ninety months
is by any account an extreme delay and by its very immensity must weigh
heavily in the ultimate balance. Since this ninety-month delay is without
question "presumptively prejudicial," we proceed to the remaining three
steps of the Barker v. Wingo analysis.
B. Reasons for the Delay
Seventy-five months of the delay in
this case can be attributed to the two interlocutory appeals. The first
appeal taken by the government consumed forty-six months; the second, in
which both sides appealed, consumed twenty-nine months. Our task is to
examine the reasons for these delays and to determine the degree to which
they weigh against or in favor of the government. Barker v. Wingo,
407 U.S. at 531.
In assessing the delay attending the
first appeal, we address the dynamite counts and the nondynamite counts
separately. With respect to the nondynamite counts, the delay for the interlocutory
appeal was wholly unnecessary, as we pointed out in United States v.
Loud Hawk, 628 F.2d at 1150. The government appealed to overturn the
order of the district court suppressing evidence relating to the dynamite;
there was no reason why the government could not have gone forward with
prosecution of the nondynamite charges. While a single trial doubtless
would have been more convenient for the government, that convenience must
be judged a slight reason for incurring the substantial delay of forty-six
months. The postponement of trial of the nondynamite charges during the
first appeal consequently weighs heavily against the government.
The government's reasons for appealing
the suppression order relating to the dynamite charges are substantial,
in light of "the necessity of the appealed question to the government's
case, the strength of the government's position on that issue, and the
seriousness of the crime." United States v. Herman, 576 F.2d at
1146. The suppressed evidence was crucial to the government's case on the
dynamite charges. The strength of the government's position was demonstrated
by its success in the appeal. The crimes charged were serious. The government's
action in taking the appeal was therefore clearly justified, and would
of itself support a reasonable delay. The problem is that this appeal took
forty-six months.
While some of this appellate delay
can be attributed to defendant's unsuccessful petition for certiorari,5
most of the delay must be attributed to the processes of this court. Even
in light of the heavy docket and limited membership of this court at that
time, and of the fact that the difficult issues presented were ultimately
taken en banc, the appeal took an extraordinarily long period of time.
The government, of course, could do nothing about that problem. It is therefore
a "neutral" [F.2d 1192] reason for delay, similar to congestion
in the trial court. See Barker v. Wingo, 407 U.S. at 531. Such neutral
reasons, however, are to be weighed against the government, although not
as heavily as some others, "since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant."
Id. In other words, courts can deprive defendants of the right of speedy
trial just as prosecutors can. The forty-six month delay attending the
government's appeal of the suppression order consequently weighs against
the government.
The second interlocutory appeal took
twenty-nine months. Three of the defendants appealed the district court's
order denying their motion to dismiss for vindictive prosecution. The government
appealed the dismissal of the indictment as to KaMook Banks. Again, the
government's appeal was justified and it succeeded in obtaining the relief
it sought.
Three of the defendants were themselves
appellants in the second interlocutory appeal. Authority provides little
guidance for evaluation of delay caused by defendants' appeals, but the
same elements appear to be relevant. In applying them, however, care must
be taken to guard against defendants' manufacturing delay for purposes
of a later speedy trial claim. Appeals taken in bad faith or for purposes
of delay must weigh against defendants in the sixth amendment balance,
as should appeals taken with little merit or hope of success. The interlocutory
appeals taken by defendants here have not been shown to have been taken
in bad faith or for delay. They were dismissed ultimately as improper interlocutory
appeals,
but that result was dictated by the intervening decision of United States
v. Hollywood Motor Car Co., 458 U.S. 263, 73 L. Ed. 2d 754, 102 S.
Ct. 3081 (1982). At the time the appeals were taken, the law of this circuit
permitted appeals from an order denying dismissal on grounds of vindictive
prosecution. United States v. Burt, 619 F.2d 831 (9th Cir. 1980).
While defendants were not compelled to appeal prior to trial under the
circuit law, they had a right to do so, and that right is entitled to protection.
The issue being appealed was certainly important to their defense. Their
appeal was justifiable, and we conclude that the delay attending it in
this court should therefore not be weighed against defendants.
We also conclude, however, that the
time taken for normal handling of the appeal that defendants elect to pursue
before trial ought not to weigh against the government either. If the court's
own processes unduly delay the appeal, that "neutral" reason must weigh
lightly against the government. There was no such undue delay here in the
twenty-three months from notice of appeal to decision by this court. To
that point, therefore, the reasons for the delay caused by defendants'
interlocutory appeal weigh for or against neither side.
The additional delay of six months
that occurred as a result of the defendants seeking certiorari from the
judgment of this court dismissing the appeal cannot be viewed as neutral.
In light of the recent decision of Hollywood Motor Car Co. by the
Supreme Court, and in light of this court's total reliance on it, the chances
of defendants' obtaining review by certiorari were virtually nil. That
portion of the delay must be wholly excused.
C. Assertion of Speedy Trial Right
The district court found that the defendants
objected to the delay as early as May 12, 1976, when the government announced
that it was not ready to proceed to trial. After each remand from this
court, defendants moved the district court to dismiss the indictment on
the grounds of unnecessary delay and violation of their speedy trial right.
Finally, defendants objected to every continuance of their trial date after
the last remand. These assertions of defendants are "entitled to strong
evidentiary weight" in determining whether their rights to a speedy trial
have been denied. Barker v. Wingo, 407 U.S. at 531-32.
[F.2d 1193] D. Prejudice
to Defendants
The kind of prejudice that the speedy
trial clause is primarily intended to prevent is personal prejudice: "lengthy
incarceration prior to trial, . . . the lesser, but nevertheless substantial
impairment of liberty imposed on an accused while released on bail, and
. . . the disruption of life caused by arrest and the presence of unresolved
criminal charges." United States v. MacDonald, 456 U.S. at 8. The defendants
here were incarcerated only for short periods, and were released without
restriction during almost all of the period of delay. They have had to
live for seven and one-half years with the anxiety of unresolved criminal
charges, and the social disruption that accompanies that condition. They
have therefore suffered some personal prejudice.
The district court also found that
defendants had suffered prejudice to the conduct of their defense because
of the inordinate delay. While prejudice to the defense is not the primary
concern of the speedy trial clause, it is not irrelevant. See Barker
v. Wingo, 407 U.S. at 532.6
The district court based its finding of prejudice on the fact that witnesses
had died and at least two others no longer recalled the events in issue.
The government contends that there is no showing that these witnesses would
have been favorable to the defense, and also argues that defendants made
no attempt to depose the witnesses.
The showing of prejudice to the defense
is somewhat speculative, partly because of the inherent difficulty of predicting
the effect of the death or loss of memory of witnesses on a trial not yet
held. See United States v. MacDonald, 435 U.S. 850, 858-59, 56 L.
Ed. 2d 18, 98 S. Ct. 1547 (1978). We therefore place little weight on this
factor in the Barker v. Wingo balance. We do not, however, discount
entirely the impairment of a fair trial that may well result from the absence
or loss of memory of witnesses in this case. See Barker v. Wingo,
407 U.S. at 532; United States v. Macino, 486 F.2d 750, 754 (7th
Cir. 1973). We also note, once again that prejudice to the defense is not
an essential element of a sixth amendment speedy trial claim. Moore
v. Arizona, 414 U.S. at 26.
III.
Balancing the four Barker v. Wingo
factors to determine whether there has been a violation of the sixth amendment
is far from an exact science. None of the factors is "either a necessary
or sufficient condition to the finding of a deprivation of the right."
Barker
v. Wingo, 407 U.S. at 533, After weighing all four factors, however,
we conclude that defendants' speedy trial right has been violated.
The most weighty factor by far is the
length of delay. We are confronted with a seven and one-half year delay
(which incidentally would become closer to nine years if we remanded for
trial). The Supreme Court in Barker v. Wingo described the five
year delay there as "extraordinary" and found the case to be "close" even
though there was a minimal showing of prejudice and the defendant did not
want a speedy trial. The far longer delay here is more than enough to tip
the balance in the circumstances of this case.
It is manifest that prejudice, always
a difficult thing to ascertain, must, at some point, be presumed to result
from an inordinate delay in bringing a defendant to trial. Exactly where
that point lies on the spectrum of pretrial delay is uncertain, but it
is clear that the longer the [F.2d 1194] delay, the heavier the
weight to be given it in the balance.
United States v. Macino, 486 F.2d
750, 752 (7th Cir. 1973); see United States v. Holt, 145 U.S. App.
D.C. 185, 448 F.2d 1108, 1109 (D.C. Cir.), cert. denied, 404 U.S.
942, 30 L. Ed. 2d 257, 92 S. Ct. 292 (1971).
The other three Barker v. Wingo
factors also contribute, on balance, to our conclusion that defendants'
speedy trial rights have been violated in this case. The reasons for a
large part of the delay weigh against the government, even though to a
substantial degree it was court delay. The defendants asserted their rights
to a speedy trial. Finally, personal prejudice, while minimal in comparison
with that resulting from lengthy incarceration, was nevertheless present.
Prejudice to the conduct of the defense is also likely, but the balance
tips sharply in defendants' favor without it.
The district court was correct in concluding
that trial would violate the sixth amendment rights of the defendants.
Its order dismissing the indictment with prejudice is AFFIRMED.
WALLACE, Circuit Judge, dissenting.
I dissent. The majority has misconstrued
United
States v. MacDonald, 456 U.S. 1, 71 L. Ed. 2d 696, 102 S. Ct. 1497
(1982) (MacDonald), which applies in this case to exclude from the
sixth amendment measurement of speedy trial the periods between live indictments
against the defendants.
I
The majority observes that the speedy
trial clause did not apply in MacDonald between the government's
good faith voluntary dismissal of military charges and a subsequent civil
indictment. This does not mean, as the majority holds, that MacDonald
fails to apply to involuntary dismissals or dismissals from which the government
appeals. The Supreme Court, in a general statement of its holding, said:
"Any undue delay after charges are dismissed, like any delay before charges
are filed, must be scrutinized under the Due Process Clause, not the Speedy
Trial Clause." Id. at 7. Nowhere in the remainder of its opinion
is there any hint that the Court meant only voluntary dismissals. See
id. at 7-11. On the contrary, in a footnote it commented "our holding
agrees with . . . the Speedy Trial Act of 1974, . . . that if charges are
initially dismissed and later reinstated, the period between the dismissal
and the reinstatement is not to be included in computing the time within
which a trial must commence. 18 U.S.C. §§ 3161(d), 3161(h)(6)."
456 U.S. at 7 n.7. Section 3161(h)(6) applies only to voluntary dismissals
by the government. Section 3161(d), however, applies to dismissals on the
motion of a defendant, "any charge contained in a complaint filed against
an individual . . . dismissed or otherwise dropped," and dismissals "by
a trial court and reinstated following an appeal." For the MacDonald
holding to agree, as it says it does, with section 3161(d), the theory
of its holding must include dismissals other than voluntary dismissals
by the government.
Later in the same footnote, the Supreme
Court cited with apparent approval a number of Speedy Trial Act cases that
excluded the period after dismissal of initial charges in counting time.
See
456 U.S. at 7-8 n.7. Among them was United States v. Bishton, 150
U.S. App. D.C. 51, 463 F.2d 887 (D.C. Cir. 1972), where the government
charged the defendant in the District of Columbia Court of General Sessions,
appealed and lost after dismissal of the charges, and then brought the
same charges in federal district court. See id. at 889, 891. This
citation reinforces the clear meaning of MacDonald : delay after
a dismissal of charges does not normally count for sixth amendment speedy
trial purposes.
Applying the MacDonald rule
to this case, the period from November 14, 1975 to May 12, 1976 counts
for sixth amendment purposes for all defendants. A live indictment stood
against them during that six-month period from arrest to dismissal of [F.2d
1195] the indictment with prejudice. The period from March 12, 1980
(for the dynamite matters) and June 18, 1980 (for the nondynamite matters)
to May 30, 1983 counts for sixth amendment purposes for all defendants
except KaMook Banks. Live indictments stood against those defendants during
that roughly three-year period from our reinstatement of the dynamite counts
and the superseding indictment's reinstatement of the nondynamite counts
until dismissal of the indictment with prejudice again. The time between
1976 and 1980 when no live indictment stood against the defendants after
the first dismissal with prejudice does not count for sixth amendment purposes
under the MacDonald rule. The time between August 30, 1980 and January
31, 1983 when no live indictments stood against Kamook Banks does not count
as to her for sixth amendment purposes under MacDonald. Thus, the speedy
trial clause time for most of the defendants totaled approximately three
and a half years. The speedy trial clause time for Kamook Banks totaled
slightly more than one year.
According to MacDonald, the
sixth amendment guarantee of a speedy trial "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 8.
These concerns did not apply to the defendants during the times after dismissals
when no live indictments were outstanding against them. They were not incarcerated
then. They were not hobbled by bail then. They were not under arrest then.
Had the district court imposed bail pending the appeals, see 18
U.S.C. § 3731, that restriction might have triggered the running of
time for purposes of the speedy trial clause, but the defendants did not
have to post bail. These facts indicate that excluding the times after
dismissal when no live indictments stood against the defendants in this
case comports both with the letter of the MacDonald rule and the
purposes of the sixth amendment.
The majority argues that because the
defendants "were . . . subject to the imposition of such restraints at
any time" during the appeals of the dismissed indictments, the sixth amendment
applies to those periods. That contention is inconsistent with MacDonald
where the Supreme Court distinguished Klopfer v. North Carolina,
386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967) (Klopfer), on
grounds that the prosecutor in that case could activate the charges and
restore the case for trial "'without further order' of the court." MacDonald,
456 U.S. at 8-9 n.8, quoting Klopfer, 386 U.S. at 214. Contrary
to Klopfer, imposition of restraints pending appeal on the defendants
in this case would require "'further order' of the court." They were in
essentially no worse position than before their first arrest when the government
had discovered probable cause but not yet successfully acted on it.
The Constitution provides "the accused
shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI.
The Supreme Court recently stated in United States v. Gouveia, 467
U.S. 180, 104 S. Ct. 2292, 81 L. Ed. 2d 146, 52 U.S.L.W. 4659, 4661 (1984)
(citations omitted) (Gouveia), that this right "may attach before
an indictment and as early as the time of 'arrest and holding to answer
a criminal charge.'" But even Gouveia does not assist the defendants
because the most public investigation, promise to prosecute, or government
statement of criminal conduct does not reach the required threshold; the
government had not imposed its formal power directly on any alleged wrongdoer.
As United States v. Marion, 404 U.S. 307, 320, 30 L. Ed. 2d 468,
92 S. Ct. 455 (1971) (emphasis added) (Marion), holds: "it is either
a formal indictment or information or else the actual restraints
imposed by arrest and holding to answer a criminal charge that engaged
the particular protections of the speedy trial provision. . . ." Accord,
e.g., United States v. Mills, 641 F.2d 785, 787 (9th Cir.), cert.
denied, 454 U.S. 902, 70 L. Ed. 2d 221, 102 S. Ct. 409 [F.2d 1196]
(1981). The government's public intent to prosecute and its efforts on
appeal to obtain the legal authority to do so did not constitute an exercise
of formal power directly on the alleged wrongdoers. Because the government
did not seek bail, no actual restraints were imposed. By misreading
MacDonald,
the majority has incorrectly extended the sixth amendment beyond these
limits imposed by the Supreme Court.
II
Even after properly excluding part
of the delay in this case under the MacDonald rule, a clear sixth
amendment question remains. Three and a half years, the relevant period
for most of the defendants, is a suspect delay. See Moore v. Arizona,
414 U.S. 25, 27, 38 L. Ed. 2d 183, 94 S. Ct. 188 (1973). One year, the
relevant period for Kamook Banks, is less suspect but I will assume for
purposes of this appeal that it is also adequate to trigger the balancing
test of Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct.
2182 (1972) (Barker). See id. at 530-31 & n.31.
In Barker, the Supreme Court
identified four major factors for resolving a constitutional speedy trial
claim: "Length of delay, the reason for the delay, the defendant's assertion
of his right, and prejudice to the defendant." Id. at 530. Since
Barker,
the Supreme Court has reduced the last of these factors -- prejudice --
to, at best, minimal importance. See MacDonald, 456 U.S. at 8. As
foreshadowed as long ago as Marion, see 404 U.S. at 324, "prejudice
to the defense caused by passage of time . . . is protected primarily by
the Due Process Clause and by statutes of limitations," MacDonald,
456 U.S. at 8. See also, e.g., United States v. Lovasco, 431 U.S.
783, 788-89, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977); Fed. R. Crim. P.
48(b).
The defendants in this case adequately
asserted their rights to a speedy trial. As a result, the length of delay
and reasons for delay amount to the most important factors for speedy trial
analysis. Of the three and a half year period applicable to most of the
defendants, almost two years involved their own appeal from the district
court's denial of their motion to dismiss for vindictive prosecution. As
the majority must concede, this period should not weigh against the government.
The majority must also concede that the six months wasted by the defendants
seeking rehearing en banc and certiorari in the face of new, directly controlling
Supreme Court precedent, e.g., United States v. Hollywood Motor Car
Co., 458 U.S. 263, 73 L. Ed. 2d 754, 102 S. Ct. 3081 (1982), at least
cannot weigh against the government. Such essentially frivolous petitions,
see
generally, e.g., Baker, A Practical Guide to Certiorari, 33
Cath. U. L. Rev. 611, 616-21, 622-23 (1984), should weigh against the defendants.
But even considering that six month period as neutral, only one year remains
that might possibly weigh against the government. Of that period, forty-one
days are attributable to a trial date continuance ordered by the district
court on its own motion. Given the complexity of this case, the time necessary
to prepare all trial matters and the additional time necessary to prepare
for trial again after interlocutory appeal, I cannot say that, on balance,
this one year of delay violated the defendants' sixth amendment rights
to a speedy trial.
Kamook Banks's case is less close.
Of the slightly more than one year relevant to sixth amendment analysis,
she wasted a good portion seeking certiorari along with the other defendants.
I cannot say the remaining period violated her sixth amendment right to
a speedy trial.
III
Because the district court failed to
apply the MacDonald rule to exclude for sixth amendment purposes
the periods between live indictments against the defendants, we should
at least remand for reconsideration. The district court abused its discretion,
see
United States v. Mills, 641 F.2d at 787; United States v. Simmons,
536 F.2d 827, 832 [F.2d 1197] (9th Cir.), cert. denied, 429 U.S.
854, 50 L. Ed. 2d 130, 97 S. Ct. 148 (1976), by dismissing the last indictment
on speedy trial grounds based on such an erroneous calculation of delay.
Because I find the record sufficient to conclude that the remaining delays
are largely excusable under the balancing test of Barker, I would prefer
not to delay the resolution of this case further but to reverse and remand
for trial.
* The Honorable Walter Early Craig,
Senior United States District Judge for the District of Arizona, sitting
by designation.
1 The MacDonald rationale cannot
be applied as far as the second appeal concerns the other defendants because
the second superseding indictment remained pending as to them during the
time spent on their appeal.
2 United States v. Ciammitti,
720 F.2d 927 (6th Cir. 1983), on which the government relies, is not contrary
to our holding. There the government did not appeal the court-ordered dismissal.
During the period after dismissal and prior to indictment, no charges were
pending against defendants and no appeal was being prosecuted. Defendants
were therefore not subject to the imposition of any restraints on their
freedom and were not the subject of any public accusation of guilt.
3 This court seems to have applied
the same approach as the Fifth Circuit, without extended discussion, in
United
States v. Cox, 475 F.2d 837, 841 (9th Cir. 1973); see United States
v. Osuna-Sanchez, 446 F.2d 566, 567 (9th Cir. 1971),
cert. denied,
404 U.S. 1022, 30 L. Ed. 2d 672, 92 S. Ct. 698 (1972).
4 We select May 20, 1983, as the ending
date because it is the date of the order of the district court that is
the subject of this appeal. We must review that order to determine whether
it was correct when made.
5 Defendants' petitions for rehearing
and certiorari consumed only six months. The delay attributable to this
factor is insignificant in the context of a total delay of forty-six months.
6 We do not regard United States
v. MacDonald, 456 U.S. at 8, to have overruled sub silentio
that part of Barker v. Wingo that renders prejudice to the conduct
of the defense a relevant consideration. MacDonald emphasized that
the sixth amendment is not " primarily intended to prevent prejudice
to the defense caused by passage of time." MacDonald, 456 U.S. at
8 (emphasis added). MacDonald neither held nor, we think, intended
that prejudice to the defense could never be a factor in sixth amendment
speedy trial analysis. See id. at 23 (Marshall, J., dissenting).
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