March 12, 1976: Petition by U.S. for Rehearing with Suggestion
for Rehearing en banc with attachments
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NOS. 75-1870, 75-1871
UNITED STATES OF AMERICA, Appellee
JEFFREY R. MACDONALD, MD, Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
PETITION BY UNITED STATES OF AMERICA FOR REHEARING,
WITH SUGGESTION FOR REHEARING EN BANC
The United States respectfully petitions this Court for a rehearing and suggests a rehearing en banc from the decision in this case filed January 23, 1976 which reversed the judgment of the district court denying appellant's motion to dismiss upon the ground of denial of his Sixth Amendment right to a speedy trial and ordered the indictment dismissed with prejudice.
REASONS FOR THIS PETITION
The decision in this case consists of two holdings. The panel first held, without dissent, that it had jurisdiction to review the denial by the district court of appellant's speedy trial claim. It then held, with Judge Craven dissenting, that the speedy trial claim was meritorious and on that basis ordered the indictment dismissed with prejudice.
As a result of this ruling, appellee -- charged with the serious offense of murder -- has obtained immunity from ever undergoing a trial which would determine his guilt or innocence. In affording him this immunity, moreover, the panel has promulgated rules which we submit are irreconcilable with the proper administration of criminal justice. First, the panel has expanded the reach of this Court's earlier decision in United States v. Lansdown, 460 F.2d 164 (1972) -- which itself ran contrary to face long established and frequently reiterated rulings of the Supreme Court by authorizing a piecemeal appeal from an interlocutory district court order. The effect of this expansion is quite likely to engender the type of dilatory appeal resulting in the delay which the Supreme Court has held is "fatal to the vindication of the criminal law." Cobbledick v. United States, 309 U.S. 323, 325 (1940)1/
Second, in holding that appellant's speedy trial rights were violated, the panel majority has adopted the rule that delay for Sixth Amendment purposes is to be computed from the time that an individual is first placed in custody, regardless of the fact that he is subsequently released unconditionally from that custody because of insufficient evidence to proceed further. The effect of this rule is to leave the government with only two options following arrest: either to proceed expeditiously to indictment and trial or else forfeit its right to charge and try the individual. The alternative of dismissing the complaint and releasing the individual while further investigation is undertaken is foreclosed by the decision of the panel majority. This holding conflicts both with society's interest in effective law enforcement and the interest of an innocent accused in avoiding the hardship of trial. Under the panel's ruling in some instances, guilty persons who are prematurely arrested will be acquitted because the government is deprived of time to make an adequate investigation2/ in other cases, innocent persons will be forced to stand trial where fuller investigation would have led to the dropping of charges against them.
Because of the affect upon the administration of justice of both the panel's appealability holding and the majority's application of the Sixth Amendment speedy trial clause, we submit that this case is worthy of further review by the entire Court.
1/ In Lansdown, the Court did not decide appealability until after it had found the double jeopardy claim to be meritorious, and the panel majority here found merit in appellant's speedy trial claim. But appealability cannot be restricted to meritorious claims, since it is only after an appeal is heard that the merits of a claim can be determined. See, e.g., United States v. Beckerman, 516 F.2d 905 (2d Cir. 1975); United States v. DiSilvio, 520 F.2d 247 (3d Cir. 1975); United States v. Barker, 8th Cir., Nos. 75-1568, 75-1569, decided December 9, 1975, where orders denying double jeopardy claims were held, on the authority of Lansdown, to be immediately appealable and the claims were then held to be without merit. Hence the effect of Lansdown and its expansion by the panel in this case is to enable any defendant who can concoct a merely colorable double jeopardy or speedy trial claim -- or conceivably, as we shall show, other constitutional claims as well -- to force a delay in his trial merely by bringing a motion to dismiss the indictment and appealing its denial.
2/ The instant case is illustrative. During the grand jury investigation phase, long after the Army charges against appellant were dropped and he received an honorable discharge from service, the government developed developed a witness who could testify concerning a highly relevant incident which occurred immediately prior to the murders. The witness had previously refused to cooperate with investigators out of fear.
THE COURT HAS NO JURISDICTION TO HEAR THIS APPEAL
In Lansdown supra, this Court held that denial of a motion to dismiss the indictment on double jeopardy grounds made prior to retrial after such a mistrial is immediately appealable. In the course of its opinion the Court stated that its decision "will apply only to that very small number of criminal cases in which a mistrial is declared against the wishes of the defendant." 460 F.2d at 172. Jurisdiction for immediate appealability was found on the basis of the "collateral order" doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541(1949). Id. at 170. The Court held that Cohen governed since the right "to be free from being twice forced to stand trial for the same offense" was "separable from, and collateral to, the main cause of action," being constitutional was "too important to be denied review," and would be "irreparably lost" if immediate review were not afforded. Id. at 171. The Court subsequently explained that, by "irreparably lost," it meant that in the absence of immediate appeal the defendant would not be provided the "full protection" of the double jeopardy clause, since even if his conviction on the second trial were reversed on double jeopardy grounds he would still have been "subjected to the embarrassment, expense, anxiety and insecurity involved in the second trial." Ibid.
Appellant in this case also made, in addition to his speedy trial claim, a double jeopardy claim which was rejected by the district court. His claim was not, however, based upon a mistrial declared at an earlier trial; rather his contention was that the determination by the Army, after a hearing held pursuant to Art. 32, Uniform Code of Military Justice (10 U.S.C. 832), not to convene a general court martial constituted prior jeopardy which barred trial of this indictment. Despite Lansdown's express limitation as to the applicability of its holding. (see above), the panel, upon the authority of that case, stayed appellant's trial and allowed his interlocutory appeal from denial of both, his double jeopardy and speedy trial claims because "the rights asserted are too important to be denied review, and if review is postponed until after trial of the case, claimed rights will have been irreparably lost" (see slip opinion at 2, n. 3). In its opinion, the panel held that ''[t]he denial of MacDonald's plea of double jeopardy, like Lansdown's, is a proper subject for interlocutory review" (id. at 3); the speedy trial claim was also held to be a proper subject for interlocutory appeal because it involved "a fundamental constitutional right," was "[p]endent to the double jeopardy claim and closely related to it," and could "be decided without considering the merits of the charges against MacDonald." Id. at 4.
We submit that this Court's original appealability ruling in Lansdown, which provides the underpinning for the panel's assumption of jurisdiction in this case, is erroneous and should be overruled. But even if the Court should not wish to take that step, it should at the minimum reassert Lansdown's restrictions on its own applicability. Otherwise the door will be open to wholesale jurisdiction for appeals from pretrial orders which will substantially erode, at least in this Circuit, the principle of finality upon which federal appellate jurisdiction is based.
A. The Lansdown ruling -- and therefore, of necessity, the panel's expansion of that ruling in this case -- is in direct conflict with early decisions of the Supreme Court which have never been repudiated. Twice the Supreme Court, in enunciating the limits on its own appellate jurisdiction, has held that the denial of a plea in bar3/ is not "final" for purpose of appealability. In Rankin v. United States, 78 U.S. 380 (1970), the Court held that it had no jurisdiction to entertain a pretrial appeal from denial of a double jeopardy claim. In Heike v. United States, 217 U.S. 423 (1910), it similarly held that it had no jurisdiction to entertain a pretrial appeal from denial of a claim of statutory immunity; in so doing, it analogized a plea of immunity to a plea of former jeopardy and reaffirmed its Rankin holding. 217 U..S. at 432-433; see also Eastman v. Ohio, 299 U.S. 505 (1936).
The promulgation of the "collateral order" doctrine in Cohen has in no way undercut the continuing vitality and authority of Rankin and Heike. The litmus test for collaterality is whether an order "can be reviewed without halting the main trial." Stack v. Boyle, 342 U.S. 1, 12 (1951) (Jackson, J. and Frankfurter, J., concurring). Thus, in Stack, trial could go forward while the order setting bail was reviewed; if the appellate decision was favorable to the defendant, he would get the benefit of it from that point on. Similarly, proceedings could continue in Cohen while the denial of the defendants' motion to require the plaintiffs to post a security bond was appealed; the defendants would be adequately protected by a favorable appellate decision rendered at any time prior to conclusion of the main proceedings, since at that point the plaintiffs would have to post the bond on pain of having their suit dismissed. On the other hand, trial must be deferred -- as it was in this case -- while the denial of a defendant's double jeopardy or speedy trial claim is reviewed, since the essence of the claim is that trial is barred by reason of prior jeopardy or undue delay.4/
The flaw in Lansdown lies in its assumption that the main cause of action in a criminal case "is whether [the defendant] is innocent or guilty of the crimes charged." 460 F.2d at 171. If this assumption were correct, it is readily apparent that pretrial disposition of a Fourth Amendment claim -- which challenges the admissibility of relevant evidence of guilt on the collateral ground that it was unlawfully procured by the government -- would be subject to immediate appeal, and yet long after Cohen the Supreme Court held that appeal in such cases must await final conviction. DiBella v. United States, 369 U.S. 121 (1962). The simple answer to the Lansdown assumption is that guilt or innocence is merely one of the issues directly involved in a criminal case. As the Supreme Court held in Heike, 217 U.S. at 429 -- and reiterated, after Cohen, in Parr v. United States, 351 U.S. 513, 518-519 (1956) -- "[t]he thing litigated" in a criminal case "is the right to convict the accused of the crime charged in the indictment." In contesting that right, as Heike went on to explain, it is open to the accused, inter alia, "to raise an issue of law upon the indictment by demurrer, to plead in bar, or to plead to the general issue." Ibid. Thus, to successfully assert its right to convict, the government must not alone prove guilt but must also establish (if the issues are raised) such matters as that the indictment is not faulty or unconstitutionally based and that trial and conviction are not barred by a grant of immunity, prior jeopardy or undue delay. Denial of a double jeopardy or speedy trial claim is therefore as much a "step toward final disposition of the merits of the case" which will "be merged in final judgment" (see Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546) as is, for instance, denial of a pretrial suppression motion or a motion to dismiss on the grounds that the indictment does not charge an offense, the charged conduct is constitutionally protected, or the indicting grand jury was unlawfully convened.
The conclusion that orders denying double jeopardy or speedy trial claims are not collateral also answers the reasoning of Lansdown, 460 F.2d at 171, reiterated by the panel in this case (slip opinion at 2, n. 3), that the rights claimed will be "irreparably lost" if immediate review is not afforded.5/ If an order is truly collateral, denial of immediate appeal is likely to result in an irreparable loss of the right claimed. Thus, in Stack, once a verdict of conviction was returned the defendant's claimed right to release on reasonable bail pending verdict would have become moot. Similarly, in Cohen an appellate decision after judgment in the main suit upholding defendants' claimed right to require the plaintiffs to post a security bond as a condition to maintaining the suit would have come too late to have any utility. A post-conviction appellate decision upholding a double jeopardy or speedy trial claim, on the other hand, would by no means be moot, as it would result in reversal of the defendant's conviction. Indeed, Lansdown acknowledged as much, but reasoned that in the absence of immediate rereview a defendant would not be afforded the "full protection" of the double jeopardy clause. 460 F.2d at 171. The loss of merely part of the benefits of a claimed right, however, is not an "irreparable" loss for purposes of creating appellate jurisdiction under Cohen; it is only "where denial of immediate review would render impossible any review whatsoever of an individual's claims" that the loss is deemed irreparable enough to warrant immediate appeal United States v. Ryan, 402 U.S. 530, 533 (1971). (Emphasis added).
B. If the Court does not overrule Lansdown, it should at least reassert that case's restrictions on its own applicability, thereby minimizing the opportunity for dilatory appeals which has been substantially widened by the panel decision in this case.6/ Limiting the application of Lansdown, in accordance with its express terms, to cases in which a prior trial has been aborted over the defendant's objection would at least tend to restrict appealability to instances in which there is a substantial basis for believing that a defendant may in fact be confronted with an unconstitutional second trial, and would militate against the use of a merely colorable double jeopardy claim as a dilatory tactic. Here, however, as Judge Craven pointed out in dissent(slip opinion at 31), the panel majority has compelled the dismissal of "the only prosecution ever begun against Dr. MacDonald." (Emphasis in original). Appellant's claim of prior jeopardy is bottomed on the fact that after what amounted to no more than a preliminary hearing, a court martial was not convened. This is patently no more than a colorable -- if not a frivolous -- double jeopardy claim. If such a claim is sufficient to sustain a trial-delaying appeal, the door is open for the dilatory use of virtually any double jeopardy claim that a defendant's or his attorney's imagination can construct.
There is even less reason to extend the Lansdown rule to speedy trial claims. Like the defendant in Parr, an accused appealing the pretrial denial of a speedy trial claim seeks "review before he ha[s] undergone the burden of a single trial." See Lansdown, 460 F.2d at 171, n. 7. Unlike the double jeopardy clause, which in terms forbids trial in violation of its provisions7/the speedy trial provision reads merely that an accused "shall enjoy the right to a speedy * * * trial" but does not forbid trial if prosecution is delayed. Compare Moore v. DeYoung, 515 F.2d 437, 446-447 (3d Cir. 1975) with United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034, 1037-1038 (3d Cir. 1975). Since, however, the panel held that the speedy trial right "is a fundamental constitutional right" (slip opinion at 4) which would be "irreparably lost" if review were postponed until after trial (slip opinion at 2, n. 3), presumably it concluded that a bar to trial in the case of unreasonably delay is a necessary implication of the provision, and on that basis applied the Lansdown rationale that immediate appeal is necessitated to afford an accused the provision's "full protection."
The difficulty with this reasoning is that it has equal application to virtually every constitutional provision upon which a motion to dismiss an indictment might be based. Surely, for example, the necessary implication of the First Amendment is that it forbids not only convictions in violations of its terms but prosecutions as well; a defendant loses the "full protection" of the Amendment if he must await conviction to obtain appellate review of his contention that it affords protection to his conduct, since pending that review he will risk further prosecution by continuing to engage in the conduct. Moreover, there are constitutional provisions whose terms more clearly forbid trial than do those of the speedy trial provision. For example, the self-incrimination clause provides that no person "shall be compelled in any criminal case to be a witness against himself." An accused will have been so compelled if he is subjected to trial despite having been granted statutory immunity in exchange for prior testimony concerning the transactions upon which the indictment is based; the "full protection" of the self-incrimination clause would require that, contrary to Heike, he obtain pretrial appellate review of his claim that trial is barred by the immunity grant. Similarly, the grand jury clause provides that no person "shall be held to answer * * * unless on a presentment or indictment of a Grand Jury"; the "full protection" of that clause would therefore require pretrial appellate review of the denial of a motion to dismiss based on the claim (see Ex parte Bain, 121 U.S. 1 (1887]) that the indictment was materially amended by motion. Indeed, the "full protection" of the due process clause would require pretrial appellate review of the denial of any motion to dismiss an indictment. An accused is to some extent deprived of liberty and property not only by being subjected to trial (see Green v. United States, 355 U.S. 184, 187 (1957); United States v. Lansdown, supra, 460 F.2d at 171) but also by the mere pendency of an indictment (see United States v. Marion, supra, 404 U.S. at 320; Smith v. Hooey, 397 U.S. 374, 375 ; Klopfer v. North Carolina, 386 U.S. 213, 221-222 (1967); if the indictment has, for example been returned by an unlawfully convened grand jury, charges as an offense conduct which is constitutionally protected or even merely fails to charge an offense, the deprivation is without due process. In our view, the underlying rationale of the Lansdown rule itself opens all of these claims to pretrial appellate review. Be that as it may, if the panel's expansion of the Lansdown rule to embrace speedy trial claims is allowed to stand, there can be no rational basis for withholding pretrial review from any of these claims.8/
3/ Motions to dismiss on the grounds of prior jeopardy or undue delay are both pleas in bar. United States v. Weller, 401 U.S. 254, 260 (1971); United States v. Marion, 404 U.S. 307, 312 (1971).
4/ While a premature appeal leaves the district court with authority to continue proceedings (United States v. Crescent Amusement Co., 323 U.S. 173, 177-178 [1441F, -"subject * * * to some qualifications" an appeal for which there is jurisdiction "suspends the power of the court below to proceed further in the cause" (Hovey v. MacDonald, 109 U.S. 150, 157 ; Newton v. Consolidated Gas Co., 258 U.S. 165, 177 [19221); the lower court "may not finally adjudicate substantial rights directly involved in the appeal." Newton v. Consolidated Gas Co., supra. One of the qualifications to the rule would appear to be an appeal from an order which is truly collateral. Since the rights asserted in the appeal are not involved in the main proceedings, the district court is left with power to continue with those proceedings.
5/ If denial of immediate review will not cause an "irreparable" loss of the rights claimed, it is immaterial that they are constitutional in origin and hence "too important to be denied review." See Lansdown, 460 F.2d at 171; slip opinion at 2, n. 3. As the Supreme Court has held, because "encouragement of delay is fatal to the vindication of the criminal law," the "correctness of a trial court's rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal." Cobbledick v. United States, supra, 309 U.S. at 325-326.
6/ The Court in Lansdown stated that, because the decision would apply to only "that very small number of criminal cases" in which the defendant had objected to abortion of the prior trial, "any increase in the number of appeals stemming from our decision will be minimal." 460 F.2d at 172. The same confident statement cannot be made after the panel decision in this case. To be sure, the panel has sought to minimize the jurisdictional effect of its decision by stating that ordinarily speedy trial claims should be reviewed after final judgment and only the "extraordinary nature" of this case led to the allowance of an interlocutory appeal (slip opinion at 4). What the panel found to be extraordinary, however, consisted of factors going to the merits of appellant's double jeopardy and speedy trial claims and the consideration that, because a prolonged and expensive trial was expected, the less burdensome course would be to determine the merits of appellant's collateral defenses in advance of trial (slip opinion at 4-5). An appellate court, however, has only the jurisdiction to entertain an appeal which it is granted by statute (Cobbledick v United States, supra, 309 U.S. at 324; accord DiBella v. United States, supra, 69 U.S. at 124-125), and neither the strength of an appellant's case on the merits nor considerations of ultimate convenience are factors upon which the statutory right of appeal is based. Compare DiBella v. United States, supra, 369 U.S. at 130. Indeed, the convenience consideration would be no different if appellant's claim were that the conduct for which he was indicted enjoys constitutional protection, the indictment fails to charge an offense, the indicting grand jury was unlawfully convened, or any other ground upon which a pretrial motion to dismiss might be based. The panel's attempted limitation upon the applicability of its jurisdictional holding is therefore likely to be even less effective than the panel's decision shows the Lansdown limitation to have been.
7/ We do not, however, concede that, because of its literal terms, the double jeopardy clause constitutes a unique provision requiring an exception to the "finality" rule governing federal appeals. In Heike, the Supreme Court held that the provision of the immunity statute that no person "shall be prosecuted" for any transaction concerning which he had been compelled to testify "has not changed the Federal system of appellate procedure" so as to "give a right of review upon any other than final judgments." 217 U.S. at 431. This reasoning would appear applicable to the appellate effect of the double jeopardy clause. The same Congress which on September 25, 1789 included that clause within the Fifth Amendment which it proposed to the legislatures of the several states enacted the Judiciary Act of September 24, 1789 which established the finality requirement for federal appeals; it is hardly likely that within the space of two days Congress would have established a finality requirement with one hand and mandated appeals from non final judgments with the other. Indeed, since the Judiciary Act made no provision for appeal by either party in criminal cases (see United States v. More, 7 Cranch 159, 172-173 (18051; Ex parte Kearney, 7 Wheat. 38, 42 [18221; Ex parte Watkins, 3 Pet. 193, 201 [18031), it would appear to follow that Congress contemplated no appellate review for double jeopardy claims but was content to leave protection of double jeopardy rights to the judgment of judges of the first instance.
8/ Claims of statutory immunity, unconstitutional amendment of the indictment and indictment by an unlawfully convened grand jury are manifestly as collateral to the question of guilt or innocence as are double jeopardy and speedy trial claims. In a narrow sense, so too are claims that the indictment is constitutionally barred or fails to charge an offense. The latter two claims do not reach the factual question whether the accused committed the conduct with which he is charged, but rather raise the legal contention that such conduct either does not amount to an offense or is constitutionally protected.
APPELLANT HAS NOT BEEN DEPRIVED OF A
In holding that appellant was deprived of his right to a speedy trial, the panel majority applied the Barker v. Wingo, 407 U.S. 514, 530 (1972) test of weighing the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant" (slip opinion at 11). Concluding that the charge brought against appellant by his commanding officer on May 1, 1970 was, because it subjected him to arrest or confinement, "the functional equivalent of a civilian arrest warrant" (id. at 13; see also id. at 17), the majority held (id. at 16; see also id. at 20) on the basis of United States v. Marion, supra, 404 U.S. at 320 that delay was to be computed from that date (slip opinion at 11-21). It concluded that two-and-one-half years' of that delay -- from June, 1972, when the Army Criminal Investigation Division assertedly recommended prosecution by the Department of Justice9/ until the return of an indictment in January 1975 -- was the result of either "indifference, negligence or ineptitude" which it held must be weighed against the government" (id. at 24). It found that appellant, by "consistently express[ing] a desire to have the case resolved," had "reasonably asserted his right to a speedy trial" (id. at 25). Finally, it found that appellant has been prejudiced by the delay both because he "has had to live with the constant threat of a new prosecution has been required to retain counsel at his own expense and has suffered anxiety concerning the unresolved nature of the case" (id. at 26) and because his ability to defend himself has been impaired (id. at 27). Weighing all of those factors, it concluded that appellant has been denied a speedy trial and that the indictment therefore must be dismissed (id. at 29).
The keystone of the majority's reasoning is its holding that delay must be computed from the time that Army charges were first brought against appellant. But as Judge Craven points out in dissent (slip opinion at 32-34), Marion has held that the protection of the Sixth 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." 404 U.S. at 313. We submit that the majority erred in holding that the bringing of Army charges in this case was "the functional equivalent of a civilian arrest,"10/and that in any event the delay of a civilian prosecution cannot properly be computed from the commencement of a military one.11/ But even conceding these two points, we submit that the majority has seriously misconstrued Marion -- and as a consequence misapplied the "assertion of the right" and "prejudice" elements of the Barker test -- and that these errors warrant full court review.
A. In Marion, the Supreme Court, while reiterating its earlier holding in United States v. Ewell, 383 U.S. 116, 122 (1966) that "the applicable statute of limitations * * * is the primary guarantee against bringing overly stale criminal charges" (404 U.S. at 322), nevertheless held that invocation of the speedy trial provision "need not await indictment, information, or other formal charge" (id. at 321) but can be engaged by "the actual restraints imposed by arrest and holding to answer a criminal charge." Id. at 320. This is so, the Court explained, because "[a]rrest 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." Ibid; see also Dillingham v. United States, O.T. 1975, No. 74-6738, decided December 1, 1975.
Implicit in this holding, we submit, is the proposition that the accused's arrest status must be a continuous one -- i.e., that he remain under "the actual restraints" imposed by the arrest until such time as those restraints are succeeded by the restraints imposed by an indictment.12/ As the Court explained in Marion in declining "to extend the reach of the amendment to the period prior to arrest," until arrest "a citizen suffers no restraints on his liberty and is not the subject of public accusation." 404 U.S. at 321. It is equally true that a citizen no longer suffers restraints on his liberty or is the subject of public accusation once he ceases to be held to answer a criminal charge.
In this case, if it is assumed that the bringing of charges against and the imposition of restrictions upon appellant by his commanding officer were "the functional equivalent of a civilian arrest," the logical concomitant is that the dismissal of those charges by his commanding general on October 23, 1970 after the Article 32 hearing (App. A7) was the functional equivalent of a dismissal of a civilian complaint by a prosecutor, a discharge by a commissioner after a preliminary examination held pursuant to Rule 5(c), F.R.Crim.P. or a no bill returned by a grand jury. It necessarily follows that at that point the delay "clock" ceased to run until it was activated again by the return of the grand jury indictment in January, 1975. Compare United States v. Flores, 501 F.2d 1356, 1359-1360 (2d Cir. 1974).
Once the charges were dismissed, appellant was no longer (until the grand jury returned its indictment) under either restraint or public accusation. Indeed, as the majority acknowledges (slip opinion at 7, n. 4), since the commanding general's action was followed within two months by appellant's honorable discharge from service, under Toth the Army at that point lost all authority to impose restraints upon him. To hold that nevertheless the speedy trial provision continued to be "engaged" would be to hold that a grand jury no bill, a discharge by a commissioner or the dismissal of a complaint by a prosecutor confers upon an accused (except, perhaps, in those rare cases where a prosecutor is subsequently able to obtain an indictment in short order) a vested right of repose -- that, in short, the "one bite of the apple" rule of the double jeopardy clause is not limited to the government's right to try an accused but extends to pretrial proceedings as well. A holding of such obviously mischievous nature finds no support in either law or logic. See Marion, 404 U.S. at 31713/
B. The majority's error in holding that the delay "clock" continued to run despite the dismissal of the Army charges against appellant led it into a mistaken application of the "assertion of the right" and "prejudice" elements of the Barker test.
1. Had appellant been under civilian arrest prior to indictment, the remedy available to him to assert and vindicate his speedy trial right would have been clear; he could have moved under Rule 48(b), F.R.Crim.P. to dismiss the complaint on the ground that there had been "unneccessary delay in presenting the charge to a grand jury." See Marion, 404 U.S. at 31914/
This procedure would have fully vindicated his rights, since grant of the motion would have freed him (until such time as the grand jury acted) from both public accusation and the restraints 6n his liberty resulting therefrom. Since he was not under arrest he of course could not make such a motion, but this proves only that in the absence of a continuing arrest he suffered no deprivation of Sixth Amendment rights.
Lacking a Rule 48(b) motion or the occasion where one might have been made, the majority held that appellant adequately asserted his speedy trial right by virtue of the fact that he had not "delayed the prosecution" and had "consistently expressed a desire to have the case resolved" (slip opinion at 25). The desire which he expressed, however, was merely to have the investigation terminate without indictment (see, e.g., slip opinion at 9, nn. 5, 6); he at no time asked to be indicted so that he might obtain a speedy opportunity to vindicate himself before a petit jury.
The majority, however, held that such a request was unnecessary. Relying upon United States v. Macino, 486 F.2d 750 (7th Cir. 1973) and Barker, 407 U.S. at 529, it ruled that appellant was "under no compulsion to demand prosecution in order to preserve his right to a speedy trial, for the primary responsibility for bringing cases to trial rests on the government" (slip opinion at 25). The reliance upon Barker is inapposite. While the Supreme Court stated in that case that courts and prosecutors have the "primary burden" of assuring that cases are brought to trial (407 U.S. at 529), at the same time it ruled that "a defendant has some responsibility to assert a speedy trial claim" (ibid.) and "emphasize[d] that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532. As for Macino, its refusal "to force a prospective criminal to seek his own prosecution" was based on recognition of "the fact that a person who has been arrested but not charged will always nourish the hope that the Government will decide not to prosecute." 486 F.2d at 753. It is equally true, however, that a person who has been indicted will always nourish the hope that the Government's evidence will grow stale and it will decide to dismiss the indict- ment. It is precisely because accused persons nourish such hopes that Barker made assertion of the right an element of the test for determining a Sixth Amendment violation. Indeed, the Court found that there was no Sixth Amendment violation in that case primarily because the defendant there, hoping that dismissal of the charges against him would result if a co-defendant who was being tried separately were acquitted, never objected to the state's motions for continuances. See 407 U.S. at 534-536. The equivalent of a, request for immediate trial by an indicted defendant as a satisfaction of the "assertion" element of Barker is a Rule 48(b) motion by an accused who has been arrested but not indicted. If, as in this case, the arrest has already terminated, the equivalent of the immediate trial request must necessarily be (if it is assumed that a Sixth Amendment situation can still exist after the termination of the arrest) a request for immediate indictment so that an immediate trial can follow. The majority, we submit, erroneously interpreted Barker by holding that such a request is unnecessary and that a mere effort to persuade the government to terminate the matter by not indicting is sufficient to satisfy the "assertion" element.
2. The majority held that delay had prejudiced appellant in two respects. First, in reliance upon Marion, 404 U.S. at 320, it found that his "personal concerns" -- the "constant threat of a new prosecution," the requirement that he retain counsel at his own expense, and the anxiety which he suffered from the unresolved nature of the case -- were "significant elements of prejudice" (slip opinion at 26). Secondly, it held "not unfounded" appellant's claim that his ability to defend himself had been impaired (id. at 27).
The majority's invocation of appellant's personal concerns as an element of prejudice is a direct concomitant to its erroneous conclusion that the delay "clock" continued to run despite the dismissal of the Army charges against him, and falls along with that conclusion. Any individual who, although not yet arrested, knows that he is the subject of a serious and lengthy criminal investigation will have the same personal concerns -- the same anxiety, the same necessity of living with the constant threat that the investigation will eventuate in a prosecution, the same impetus to undertake the expense of retaining counsel. Compare Marion, 404 U.S. at 331 (dissenting opinion). The Court's opinion in Marion, however, has made it clear that it is only when those concerns are engendered by a formal public accusation -- i.e., an arrest, indictment or information -- that they become relevant considerations for determining the existence of a Sixth Amendment violation. See 404 U.S. at 320-321. As we have shown (supra, p. 18), if "prior to arrest" an individual is "not the subject of public accusation" (404 U.S. at 321), he ceases to be the subject of such an accusation once he obtains vindication by termination of the arrest. At that point, even though the investigation continues, he is back in the same position as an investigatee who has not been arrested. It follows that, while his personal concerns may continue, they are no longer relevant considerations for assessing a speedy trial violation.
Marion also makes it clear that appellant's allegations of an impaired ability to defend himself are not sufficient to establish a violation of his speedy trial right. As the majority here sums these allegations up, they are that "interviewing (potential defense] witnesses before trial and insuring their presence at trial would be time-consuming and expensive" and "in the five years since the murders, memories have faded and witnesses can no longer be expected to reliably recall details" (slip opinion at 27). The first allegation, however, which concerns a situation common to many cases with complicated factual issues and not at all peculiar to cases in which delay is involved, is hardly a valid reason to immunize a defendant from trial. The second allegation does not consist of a demonstration either that actual trial prejudice will necessarily occur or that the possibility that trial prejudice may have occurred cannot be discounted (the latter demonstration being impossible to make at the pretrial stage of proceedings). Rather, it consists merely of an invocation of potential prejudice.15/ Since, as we have shown, the time span between the dismissal of Army charges and the return of the grand jury indictment constitutes noncognizable delay under Marion, the allegation is answered by the holding of that case that the mere" possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context." 404 U.S. at 322. As Marion went on to explain, "the applicable statute of limitations * * * is * * * the primary guarantee against bringing overly stale criminal charges" (ibid.), and as a result "[t]here 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." Id. at 323. Since appellant has not established Sixth Amendment cognizable delay, his claim of trial prejudice must be based upon the due process clause of the Fifth Amendment. To sustain such a claim, he must show -- as he has not even attempted to do -- both "substantial prejudice" to his rights to a fair trial and a delay that was "an intentional device to gain tactical advantage" over him; he must, moreover, make this showing "at trial" and not, as here, prior thereto. Id. at 324.
9/ The majority's assertion that the Criminal Investigation Division recommended prosecution is not supported by the record. The thirteen volume report which that division delivered to the Justice Department in June, 1972 recounted the investigation to date, set forth undeveloped leads and recommended only further investigation.
10/ The majority found that appellant was "restricted to quarters under arrest" because he was "relieved of his duties," on the theory that an officer "is considered to be restricted under arrest if relieved of his duties', and in lieu of arrest if he is not" (slip opinion at 14). Appellant, however, was restricted to quarters and relieved of his regular duties on April 6, 1970, twenty-five days before the date that the majority found that he was "arrested"; the restriction was in lieu of arrest because his commanding officer concluded that the evidence "was somewhat weak" and "hence arrest or detention was not warranted." As an example of the "lieu of arrest" rather than "arrest" status, the escort officers assigned to appellant were at all times unarmed and were given no instructions to restrain or prevent him from exceeding the limits of his restriction; rather, they were merely told to keep visual contact with him. When formal charges were brought against him on May 1, no orders were issued changing the status of his restriction "in view of the incomplete stage of the investigation which had not yet demonstrated that there was probable cause to arrest him for the murders" (App. A5-A6). ("App." refers to the appendix to this petition). Appellant, moreover, was relieved only of his medical duties but not of all his military duties; he was still permitted, for example, to make parachute jumps for pay qualification purposes (see slip opinion at 43, n. 16). As a further example of his non arrest status, when he traveled to Washington, D.C. to appear before a psychiatric board at Walter Reed Hospital, instead of being sent under military police escort he was placed on temporary duty status and recompensed for his per diem and travel expenses; while an escort officer accompanied him to Washington, he was able while there to make an unescorted trip to New Hope, Pennsylvania to visit friends (App. A13-A15).
11/ The majority held that the military "arrest" was the relevant starting point for computing delay on the theory that the murder charge against appellant has been pursued "by the government in its single sovereign capacity, regardless of the number and character of the executive departments that participate in the prosecution" (slip opinion at 17). The relationship in this case between the Army and the Department of Justice, however, is not the same as the relationship between the Justice Department and other departments, such as Treasury, which have their own investigative branches. Such departments, which have no independent prosecutive capacity, undertake investigations for the purpose of developing cases which will be presented to the Justice Department for prosecution, and hence the latter can exercise supervisory authority over the investigations from the beginning. Here, on the other hand, the Army investigation was commenced for the purpose of bringing a military prosecution against appellant, and as long as the Justice Department did not displace that prosecution it had no authority to supervise the investigation. Nor can military and civilian prosecutions properly be deemed a single entity carried on successively in different federal forums, such as would be a case presented to grand juries in two different districts or first to a grand jury of the District of Columbia Superior Court and then to a district court grand jury. Unlike a civilian prosecution, whose purpose is to vindicate the criminal law, a military prosecution is undertaken "to maintain discipline" and "is merely incidental to an army's primary fighting function." Toth v. Quarles, 350 U.S. 11, 17 (1955); see also O'Callahan v. Parker," 95 U.S. 258, 265-266 (1969). It follows that the military and civilian prosecutions of appellant must be treated as separate entities, and that delay of the civilian prosecution (the issue here) can be computed only from appellant's indictment and civilian arrest.
12/ The defendant in Dillingham remained under arrest, released only on bail, for the entire twenty-two months between arrest and indictment.
13/ Contrary to the majority's assertion (slip opinion at 18-20), Klopfer v. North Carolina, 386 U.S. 213 (1967) does not support the proposition that the delay "clock" continued to run despite the dismissal of the Army charges against appellant. As Judge Craven pointed out in dissent (slip opinion at 41-42), the distinction which the majority acknowledged between that case and this one -- "there, an indictment remained potentially effective during the period of delay; here, MacDonald was not indicted until the end of the period" (slip opinion at 19) -- is a crucial and not an immaterial one. Although the state action in that case was denominated a nolle prosequi, in actuality it was merely a suspension of the indictment; it did not terminate proceedings since the state could re institute the prosecution, without returning to the grand jury for a new indictment, simply by obtaining leave of court (and, in fact, could do so without leave of court if the nolle prosequi was granted "with leave"). See 386 U.S. at 214. Unlike the status of appellant after dismissal of the Army charges, therefore, the defendant in Klopfer remained "the subject of public accusation" (see Marion at 404 U.S. 421) despite the nolle prosequi. The majority is thus in error in its assertion that appellant was in the same position as the Klopfer defendant in that both were "at all times * * * subject to prosecution" and "deprived of any forum in which to vindicate themselves" (slip opinion at 19). The Klopfer defendant was subject to prosecution precisely because the indictment remained outstanding while appellant, between October 23, 1970 and January, 1975, was under no public accusation for which he could be tried.; the Klopfer defendant lacked a forum in which to vindicate himself until the state was willing to reactivate the indictment while appellant had obtained vindication from the only public accusation ever made against him prior to January, 1975 when the Army charges were formally dismissed by his commanding general on October 23, 1970.
14/ Concededly, this remedy would not have been open to him were he still under military arrest. But in that case (which, under cx, could have occurred only if he were still in service) the charges would not have been presentable to a grand jury without termination of the Army's jurisdiction and hence the military arrest; since during the pendency of the military arrest he would still have been the subject of a military prosecution, there would have been no civilian prosecution against which to make a claim of unreasonable delay. In our view, the fact that appellant could not have brought a Rule 48(b) motion to test a military arrest is a further argument in support of the proposition that military and civilian prosecutions are completely separate entities and that therefore delay of the latter cannot properly be computed from the commencement of the former (see n. 11, supra, p. 16).
15/ Factually, this is not the sort of case in which delay is likely to impair substantially appellant's ability to defend himself. There were no eyewitnesses to the murders, and appellant does not (and cannot, since he was present) rely on an alibi defense. The case is basically circumstantial, depending upon physical evidence and the inferences to be drawn therefrom (see App. A29-A35), and that type of evidence does not grow stale with time. To the extent that witnesses' memories may have weakened, this is a factor which affects the government as well as the defense -- and the government has the burden of proving guilt beyond a reasonable doubt. While the majority mentioned the government's ability to impeach "stale witness[es]" for the defense through use of their five-year old statements at the Article 32 hearing and to investigators (slip opinion at 28), appellant has not specified the specific witnesses who are likely to be subject to such impeachment or the expected content of their testimony. In this respect it is to be noted that the twenty-nine witnesses called by appellant during the Article 32 proceedings included "many character witnesses" (slip opinion at 7), and character testimony is least likely to be weakened or to have its impeachability increased by the passage of time. Moreover, the prior recorded statements of government witnesses will be available to the defense, so the advantages are at least even in that respect. At bottom, it is only an impaired memory on the part of appellant himself that has a potential for causing him trial prejudice. Appellant, however, has told a consistent story throughout the five year history of this case (see App. A17-A27).
For the foregoing reasons, it is respectfully submitted that the Court should rehear this case en banc and dismiss the appeal or, in the alternative, affirm the judgment of the district court.
THOMAS P. MCNAMARA,
United States Attorney,
JAMES T. STROUD, JR.,
Assistant United States Attorney,
VICTOR C. WOERHEIDE,
BRIAN M. MURTAGH,
MARSHALL TAMOR GOLDING,
United States Department of Justice.
CERTIFICATE OF SERVICE
I hereby certify that two copies of this petition and the appendix thereto have been served by prepaid mail upon Bernard L. Segal, Esquire and Orrin Leigh Grover III, Esquire, Suite 220, 536 Mission Street, San Francisco, California 94105, Robert H. Hood III, Esquire, NML Building, Suite 202, 123 West Franklin, Chapel Hill, North Carolina 27514, and Kenneth A. Letzler, 1229 Nineteenth Street, N.W., Washington, D.C. 20036, attorneys for appellant.
March 12, 1976
Marshall Tamor Golding,
Table of Contents
Appendix to Petition
Appendix I: Charge Sheet (DD Form 458)
Appendix II: February 23, 1976: Affidavit of Colonel Francis B. Kane, Jr.
Appendix III: October 23, 1970: Letter from Major General Edward M. Flanagan, Jr.,
dismissing charges for insufficient evidence
Appendix IV: February 2, 1976: Letter from Department of Justice Attorney Brian M. Murtagh
to Major General Wilton B. Persons, Jr., USA, The Judge Advocate General
Appendix V: February 17, 1976: Opinion of the Judge Advocate General
Appendix VI: Authorization for TDY Travel by CPT Jeffrey R. MacDonald, August 14, 1970
Appendix VII: Travel Voucher No. 403050 in which CPT Jeffrey R. MacDonald was paid for 9 days
"temporary duty" between August 21-30, 1970, at New Hope, Pennsylvania
Appendix VIII: Diagram of 544 Castle Dr., Art. 32 Rpt.
Appendix IX: Excerpts of prior testimony by Jeffrey R. MacDonald concerning physical evidence found at 544 Castle Drive, Fort Bragg, North Carolina
Appendix X: Synopsis of major items of physical evidence