John P. Mann v. United StatesJohn P. Mann v. United States
- Reporters:
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- Before:
- Wright
On July 20, 1959, appellant was indicted for embezzlement, the crime having been committed five weeks earlier. After delays provoked by appellant, his case was called for trial on February 16,1960. At that time the government obtained a week’s continuance in order to locate a missing document essential to the prosecution. But government counsel assured the court (and the accused) that if the evidence could not be located within the week “we will, on our own motion, move to dismiss the case.” The case was again called on February 23 and the government, representing that the “crucial” document was still missing, advised the court that it “could not oppose an appropriate motion.” Appellant‘s court-appointed counsel thereupon moved for dismissal and the District Judge dismissed the indictment “for want of prosecution.” At the same time, the judge urged the government’s attorney to investigate the disappearance of the evidence and commented that, since the statute of limitations had not run, appellant could be re-indicted. The government did not appeal this dismissal. 1
Forty days later, on April 4, 1960, the missing document having been discovered, appellant was re-indicted for the
Appellant’s main claim is that the dismissal of the first indictment barred any further prosecution for the same offense. The argument is that the dismissal expressly awarded for “want of prosecution,” standing unappealed, amounts to a final finding that appellant has been denied a “speedy trial” and, accordingly, cannot be further prosecuted consistently with his constitutional right.
We accept appellant’s premise that the constitutional right to a speedy trial is properly enforced by dismissal of the charge when there has been prejudicial delay in bring the case to trial.
4
United States v. Provoo, 350 U.S. 857,
The dismissal here was not compelled by the Speedy Trial Clause. Appellant was promptly indicted, within five weeks after the crime, and only seven months more had passed when the court dismissed the indictment. 8 At that, most of the delay was of his own making. Certainly, in these circumstances, the one week continuance obtained by the government did not work a deprivation of constitutional rights. Nor would a reasonable further delay. The trial judge acted, not under constitutional compulsion, 9 but, on the government’s suggestion, out of concern for the accused who remained incarcerated, presumably because he could not meet his bond. 10 And the court clearly expressed its intent to award the dismissal without prejudice to further prosecution should the government later 11 uncover the missing evidence.
The accused cannot complain because a liberal application of the Rule earns him temporary freedom, without according him full immunity from prosecution. 15 At most, he is entitled to know whether the sword of Damocles still hangs over him. If the dismissal is granted pursuant to a finding that the Speedy Trial Clause has been violated, the court should expressly dismiss with prejudice. Otherwise, the dismissal should note that it is awarded without prejudice to prosecution on a new indictment or information. Here the required warning was given, 16 and, under the facts, it was clearly a proper ruling. The conviction, the sentence, and the ordering denying the motion to vacate sentence are accordingly
Affirmed.
Notes
. While the dismissal is probably not ap-pealable under
.The rule that one who fails to ask for a prompt trial waives his constitutional right to a speedy trial, whatever its soundness in a different context, is clearly irrelevant here. Appellant did not want a trial; he hoped there would be no further prosecution after dismissal of the original indictment. His first opportunity to assert that defense was when he was called on to answer the second indictment. The only question here is whether his failure to object at that time bars his raising the point on appeal or in the subsequent collateral proceeding. The double jeopardy cases and some of the limitation cases suggest that it does, while other limitation cases, notably Askins v. United States, 102 U.S.App.D.C. 198, 251 F.2d 909, point the other way. But there appear to be no decisions directly in point, except perhaps Jordan, infra.
. In Askins, supra, at n. 3, this court notes that in reversing Jordan the Supreme Court apparently held that a judgment of conviction could be collaterally attacked under § 2255 on the ground of a denial of the right to speedy trial. If that is true, then, obviously, the defense can also be noticed for the first time on appeal from the conviction.
. While the point is not important here, we note that in our view, and contrary to some recent opinion, see, e. g., Foley v. United States, 8 Cir., 290 F.2d 562; Venus v. United States, 9 Cir., 287 F.2d 304, the constitutional guarantee protects against undue delays in presenting tho formal charge as well as delays between indictment and trial. The Supreme Court’s affirmance of Judge Thomsen’s ruling in Provoo, infra, seems to have settled the point. See also our opinion in Taylor, infra. In a non-capital case, it is true, mere delay in presenting the charge will rarely work a deprivation of the constitutional right, for permissible time in that instance is normally governed by the statute of limitations. Yet, if the delay is “purposeful or oppressive,” Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393, even an indictment within the limitation period may come too late to square with the Sixth Amendment.
. For a collection of the cases holding that the only remedy is a motion for speedy trial, followed by mandamus, see Petition of Provoo, supra, 17 F.R.D. 199, n. 20.
. Indeed, if it were otherwise, it is hard to understand why the government would ever appeal from the dismissal of an indictment, rather than simply re-indict.
. Often, of course, the second prosecution, if permitted, would stumble on the Due Process Clause of the Fifth Amendment, for the original dismissal is usually accompanied by a finding that, because of the lapse of time and the resulting prejudice to the defendant’s case, he cnn no longer obtain a “fair trial.” See, e. g., Petition of Provoo, supra, at 202-203; United States v. McWilliams, D.D.C., 69 F.Supp. 812, 815. But, without a rule barring re-indictment, the Speedy Trial Clause would not fulfill Its promise in those cases where the government ‘has been guilty of purposeful and oppressive delays which, however, do not absolutely preclude an eventual fair trial.
. Compare Stevenson v. United States, 107 U.S.App.D.C. 398, 278 F.2d 278, in which this court found a delay of sixteen months between indictment and trial did not amount to a denial of the constitutional right to a speedy trial. In any event, “the right of a speedy trial is necessarily relative. It íb consistent with delays and depends upon circumstances.” Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950. See James v. United States, 104 U.S.App.D.C. 263, 261 F.2d 381; Williams v. United States, 102 U.S.App.D.C. 51, 250 F.2d 19.
. Judge Sirica, who heard the § 2255 application, expressly concluded that the dismissal of the original indictment by former Chief Judge Pine “was not a dismissal with prejudice based upon the failure of the Government to afford the defendant a speedy trial.”
. The court, instead, might have enlarged him on his own recognizance, without requiring security. But, in some situations at least, the onerous conditions attached to such a procedure may make it inappropriate.
. Of course, the subsequent indictment must be returned within the period prescribed by the statute of limitations. Even then, undue delays may result in denial of the constitutional right to a Bpccdy trial, llcre, however, appellant does not seriously urge, nor do the facts support a finding, that the time lapse between the dismissal and the second indictment, or the trial, worked any such denial.
. In view of the government attorney’s representation when the case was first called that he would himself ask for dismissal if the missing document could not be uncovered within the week, and his later statement that he would “not oppose” such a motion, the dismissal might be construed as granted under Rule 48(a), even though technically moved for by the defense. In such case, it would normally be without prejudice to a subsequent prosecution. Dortch v. United States, 6 Cir., 203 F.2d 709, 710. But we prefer to consider the matter, as the District Judge apparently did, as falling under Rule 48(b). In any event, it probably makes no difference. For, as its attorney concedes, the government cannot avoid the Speedy Trial Clause simply by becoming the moving party.
. Note of Advisory Committee, following 18 U.S.C.A., Rule 48.
. Unless the government’s attorney voluntarily entered such a motion, ns in; often does. But justice cannot be made to depend on the prosecutor‘s sense of fairness.
. The inflexible rule that every dismissal for want of prosecution is necessarily with prejudice announced in District of Columbia v. Healy, D.C.Mun.App., 160 A.2d 800, is, of course, not binding on this court. Nor is it persuasive, for it is grounded on the fallacy that the defendant gains nothing by dismissal unless all further prosecution is barred. This ignores the very real advantage of being enlarged and freed from pending charges, even temporarily.
. As a matter of form, the notation that the dismissal is granted with or without prejudice should be part of the written order. But the defect here is not fatal, since appellant was in fact advised by the judge through his colloquy with the government’s attorney.