UNITED STATES v. LOUD HAWK ET AL.
No. 84-1361
Supreme Court of the United States
January 21, 1986
474 U.S. 302
Argued November 12, 1985
Kenneth Saul Stern, by appointment of the Court, 471 U. S. 1123, argued the cause for respondents. With him on the brief were Tom Steenson, Ronald P. Schiffman, and Michael Timothy Bailey.*
JUSTICE POWELL delivered the opinion of the Court.
In this case we must decide, first, whether the Speedy Trial Clause of the
I
In view of the nature of respondents’ claim, we state the factual and procedural history of this case in some detail. On November 14, 1975, pursuant to a tip from the Federal Bureau of Investigation, Oregon state troopers stopped two vehicles in search of several federal fugitives.2 After an exchange of gunfire and a motor chase, state troopers captured all but one of the respondents, Dennis Banks.3 Both vehiclеs were locked and impounded while federal and state authorities obtained search warrants.
Searches of the vehicles over the next two days disclosed 350 pounds of dynamite,4 6 partially assembled time bombs,
A federal grand jury indicted respondents on November 25, 1975, on charges of possessing firearms and explosives. Trial in the United States District Court for the District of Oregon was set for the week of February 9, 1976. On December 22, 1975, a grand jury returned a five-сount superseding indictment. This indictment charged all respondents with three counts relating to possession and transportation in commerce of an unregistered destructive device (the dynamite counts) and two counts relating to unlawful possession of firearms (the firearms counts).
Two days later, respondents filed a motion to suppress all evidence concerning the dynamite, arguing that federal and state officials had intentionally and negligently destroyed the dynamite before the defense had the opportunity to examine it. After initially denying respondents’ motion,6 and after
The Government immediately appealed the dismissal, and the two appeals were consolidated. The Court of Appeals
On August 7, 1979, the Court of Appeals reversed the suppression order and directed that the dynamite counts be reinstated. United States v. Loud Hawk, 628 F. 2d, at 1150. The court also held that although the Government could have gone to trial on the firearms counts pending the appeal, the District Court erred in dismissing those counts with prejudice. Id., at 1151. The Court of Appeals denied respondents’ petition for rehearing on October 1, 1979. Respondents petitioned for certiorari; we denied the petition on March 3, 1980. 445 U. S. 917. The mandate of the Court of Appeals issued on March 12, 1980, 46 months after the Government filed its notice of appeal from the dismissal of the indictment. Respondents were unconditionally released during that time.
Following remand, the District Cоurt ordered the Government to reindict on the firearms charges.9 Respondents filed a number of motions during June and July of 1980 in re-
The appeals were consolidated, and the Court of Appeals ordered expedited consideration. The court heard argument on January 7, 1981, but did not issue its decision until July 29, 1982. The court sustained the Government‘s position on all issues. United States v. Banks, 682 F. 2d 841. Respondents’ petitions for rehearing were denied on October 5, 1982. Respondents again petitioned for certiorari, and we denied the petition on January 10, 1983. 459 U. S. 1117. The Court of Apрeals’ mandate issued on January 31, 1983, almost 29 months after the appeals were filed.
The District Court scheduled trial to begin on April 11, 1983. The Government sought and received a continuance until May 3, 1983, because of alleged difficulties in locating witnesses more than seven years after the arrests. Subsequently, the court on its own motion continued the trial date until May 23, 1983, and then again rescheduled the trial for June 13. The record in this Court does not reveal the rea-
On May 20, 1983, the District Court again dismissed the indictment, this time on the ground that respondents’ Sixth Amendment right to a speedy trial had been violated. 564 F. Supp. 691. The Government appealed, and unsuccessfully urged the District Court to request that the Court of Appeals expedite the appeal. On its own motion thе court treated the appeal as expedited, and heard argument on January 4, 1984. A divided panel affirmed on August 30, 1984. 741 F. 2d 1184.11 We granted certiorari, 471 U. S. 1014 (1985), and now reverse.
II
The Government argues that under United States v. MacDonald, 456 U. S. 1 (1982), the time during which defendants are neither under indictment nor subject to any restraint on their liberty should be excluded—weighed not at all—when considering a speedy trial claim.12 Respondents contend that even during the time the charges against them were dismissed, the Government was actively pursuing its case and they continued to be subjected to the possibility that bail might be imposed. This possibility, according to respondents, is sufficient to warrant counting the time towards a speedy trial claim.
The Court has found that when no indictment is outstanding, only the “actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provision of the Sixth Amendment.” United States v. Marion, 404 U. S. 307, 320 (1971).
During much of the litigation, respondents were neither under indictment nor subject to bail.13 Further judicial proceedings would have been necessary to subject respondents to any actual restraints. Cf. Klopfer v. North Carolina, 386 U. S. 213 (1967). As we stated in MacDonald: “[W]ith no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed, ‘a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.‘” 456 U. S., at 9.
Respondents argue that the speedy trial guarantee should apply to this period because the Government‘s desire to prosecute them was a matter of public record. Public suspicion, however, is not sufficient to justify the delay in favor of a defendant‘s speedy trial claim. We find that after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were “in the same position as any other subject of a criminal investigation.” MacDonald, supra, at 8-9. See Marion, supra, at 309. The Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before trial.
Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal—an appearance they waived—constitute the sort of “actual restraint” required under our precedents as a basis for application of the Speedy Trial Clause. Finally, we are not persuaded that respondents’ need for counsel while their case was technically dismissed supports their speedy trial claim. Although the retention of counsel is frequently an inconvenience and an expense, the Speedy Trial Clause‘s core concern is impairment of liberty; it does not shield a suspect or a defendant from every expense or inconvenience assоciated with criminal defense.
We therefore find that under the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.
III
The remaining issue is how to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint. As we have recognized, the
At the same time, there are important public interests in the process of appellate review. The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided through orderly appellate review safeguards both the rights of defendants and the “rights of public justice.” Beavers v. Haubert, 198 U. S. 77, 87 (1905). The legislative history of
It is, of course, true that the interests served by appellate review may sometimes stand in opposition to the right to a speedy trial. But, as the Court observed in United States v. Ewell, supra, at 121:
“It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. ... [This rule] has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. ... These policies, so carefully preserved in this Court‘s interpretation given the Double Jeopardy Clause, would be seriously undercut by [an] interpretation given the Speedy Trial Clause [that raised a Sixth Amendment obstacle to retrial following successful attack on conviction].”
In Barker, we adopted a four-part balancing test to determine whether a series of continuаnces infringed upon the defendant‘s right to a speedy trial. 407 U. S., at 530. That test assessed the “[l]ength of delay, the reason for the
A
Barker‘s first, third, and fourth factors present no great difficulty in application. The first factor, the length of delay, defines a threshold in the inquiry: there must be a delay long enough to be “presumptively prejudicial.” Id., at 530. Here, a 90-month delay in the trial of these serious charges is presumptively prejudicial and serves to trigger application of Barker‘s other factors. Ibid.
The third factor—the extent to which respondents have asserted their speedy trial rights—does not support their position. Although the Court of Appeals found that respondents have repeatedly moved for dismissal on speedy trial grounds, 741 F. 2d, at 1192, that finding alone does not establish that respondents have appropriately asserted their rights. We held in Barker that such assertions from defendants are “entitled to strong evidentiary weight” in determining whether their rights to a speedy trial have been denied. 407 U. S., at 531-532. These assertions, however, must be viewed in the light of respondents’ other conduct.
Here, respondents’ speedy trial claims are reminiscent of Penelope‘s tapestry.14 At the same time rеspondents were making a record of claims in the District Court for speedy trial, they consumed six months by filing indisputably frivolous petitions for rehearing and for certiorari after this
The Court of Appeals gave “little weight” to the fourth factor, prejudice to respondents. At most, the court recognized the possibility of “impairment of a fair trial that may well result from the absence or loss of memory of witnesses in this case.” 741 F. 2d, at 1193. See Barker, 407 U. S., at 532. That possibility of prejudice is not sufficient to support respondents’ position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden.
B
The flag all litigants seek to capture is the second factor, the reason for delay. In Barker, we held that “different weights should be assigned to different reasons.” Id., at 531. While a “deliberate attempt to delay the trial in order to hamper the defense,” would be weighed heavily against the Government, a delay from “overcrowded courts“—as was the situation here—would be weighed “less heavily.” Ibid. Given the important public interests in appellate review, supra, at 313, it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government‘s position on the appealеd issue, the importance of the issue in the posture of the case, and—in some cases—the seriousness of the crime. United States v. Herman, 576 F. 2d 1139, 1146 (CA5 1978) (Wisdom, J.). For example, a delay resulting from an ap-
Under Barker, delays in bringing the case to trial caused by the Government‘s interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial. It is clear in this case, however, that respondents have failed to show a reason for according these delays any effective weight towards their speedy trial claims. There is no showing of bad faith or dilatory purpose on the Government‘s part. The Government‘s position in each of the appeals was strong, and the reversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government‘s action. Moreover, despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeals.
The only remaining question is the weight to be attributed to delays caused by respondents’ interlocutory appeals. In that limited class of cases where a pretrial appeal by the defendant is appropriate, see, e. g., Hollywood Motor Car Co., supra, at 265-266, delays from such an appeal ordinarily will not weigh in favor of a defendant‘s speedy trial claims. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay сaused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial. As one Court of Appeals has noted in the context of a District Court‘s consideration of pretrial motions:
“Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a
decision, the defendants are not now able to criticize the very process which they so frequently called upon.” United States v. Auerbach, 420 F. 2d 921, 924 (CA5 1969), rehearing denied, 423 F. 2d 676, cert. denied, 399 U. S. 905 (1970).
In the present case, respondents’ appeal was allowable under the law of the Ninth Circuit before our decision in Hollywood Motor Car, supra. But we find that their position was so lacking in merit that the time consumed by this appeal should not weigh in support of respondents’ speedy trial claim. Nor do we weigh the additional delay of six months resulting from respondents’ frivolous action in seeking rehearing and certiorari toward respondents’ speedy trial claim. See ibid., decided prior to these latter actions.
IV
We cannot hold, on the facts before us, that the delays asserted by respondents weigh sufficiently in support of their speedy trial claim to violate the Speedy Trial Clause. They do not justify the severe remedy of dismissing the indictment. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.
The Court holds today that the Speedy Trial Clause of the
I
The majority concludes that when an appeal arises out of the district court‘s dismissal of an indictment, the lack of an outstanding indictment absolves the Government of its responsibility to provide a speedy trial. However, we have never conditioned Sixth Amendment rights solely on the presence of an outstanding indictment. Those rights attach to anyone who is “accused,”1 and we have until now recognized that one may stand publicly accused without being under indictment. The majority offers two reasons for concluding that respondents did not enjoy the right to a speedy trial during the Government‘s appeals. First, respondents wеre suffering only “[p]ublic suspicion,” ante, at 311, and not a formal accusation. Second, they were not subject to “actual restraints” on their liberty. Both of these rationales are seriously flawed.
A
In United States v. Marion, 404 U. S. 307 (1971), we held that the Speedy Trial Clause does not apply until the Government, either through arrest or indictment, asserts probable cause to believe that a suspect has committed a crime. Before that time the individual, while possibly aware of the Government‘s suspicion, is not “the subject of public accusation,” id., at 321, and his only protection against delay comes from the Due Process Clause and the applicable statute of limitations. The Court applied the same rationale in MacDonald, supra. In that case, military charges of murder against MacDonald, an Army officer, were dropped after an investigation. MacDonald was then given an honorable discharge, only to be indicted by a civilian grand jury nearly
The same cannot be said of respondents in the present case.2 Unlike one who has not been arrested, or one who has had the charges against him dropped, respondents did not enjoy the protection of the statute of limitations while the Government prosecuted its appeals. That protection was an important aspect of our holding in Marion that prearrest delay is not cognizable under the Speedy Trial Clause. See 404 U. S., at 322-323. More importantly, in contrast to MacDonald, the Government has not “dropped” anything in
The majority argues that while “the Government‘s desire to prosecute [respondents] was a matter of public record,” that desire constituted only “[p]ublic suspicion” that is insufficient to call Sixth Amendment rights into play, citing Marion and MacDonald. Ante, at 311. The reason that the Government‘s desire to prosecute in both of those cases did not constitute an “accusation,” however, is that the Government had not yet formalized its commitment. Indeed, in MacDonald, the Government dismissed the murder charges because it “concluded that they were untrue,” 456 U. S., at 10, n. 12, thus acknowledging that the first formal accusation had been a mistake and extinguishing the prior probable-cause determination. In the present case, the Government has made no such confession of error and continues to align its full resources against respondents in judicial proceedings.
The most telling difference between this case and MacDonald, however, is the fact that respondents’ liberty could have been taken from them at any time during the Government‘s
B
As if acknowledging that the delay in this case is more analogous to postarrest, preindictment delay than to prearrest delay, the majority concedes that had respondents been incarcerated or forced to post bond during the Government‘s appeals, the automatic exclusion rule of MacDonald would not apply. Ante, at 311, n. 13. Yet, inexplicably, the majority then suggests that the Speedy Trial Clause applies to postarrest, preindictment delay only when the defendant has been subjected to “‘actual restraints,‘” ante, at 310,
We held in Marion that prearrest delay is not cognizable under the Speedy Trial Clause, but we certainly did not disturb the settled rule that the Government‘s formal institution of criminal charges, whether through arrest or indictment, always calls the speedy trial right into play. See id., at 316-319; see also United States v. Gouveia, 467 U. S. 180, 185-186 (1984). Although it specified detention and bail as possible deleterious effects of a formal criminal charge, Marion nowhere suggested that it is the restraints themselves, rather than the assertion of probable cause, that constitute an accusation. Nor did we hold that a criminal сharge has less constitutional significance when a defendant is released on recognizance rather than on bail. See 404 U. S., at 321, n. 12. The majority identifies no logic or precedent supporting its novel conclusion that a defendant who is arrested and released on bail is “accused,” while a defendant who is arrested and released without bail, on the same evidence, is not “accused.”5
Indeed, we have rejected precisely the interpretation of Marion that the majority now adopts. In Dillingham v. United States, 423 U. S. 64 (1975) (per curiam), we held that
There can be no question that one who had been arrested and released under
II
The majority also declines to hold the Government accountable for delay attributable to appeals during which respond-
In Barker, we explained the application of the “reason for the delay” factor as follows:
“[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” 407 U. S., at 531 (footnote omitted).
The majority‘s aрplication of this factor to the appellate delays in this case makes Government misconduct or bad faith a virtual prerequisite to a finding of a speedy trial violation. Seizing upon the approach of some of the Courts of Appeals,7 the majority analyzes the reason behind the appellate delay solely in terms of the reasonableness of the Government‘s behavior in taking and prosecuting the appeal. This approach is inconsistent with the policies behind the speedy trial right. We recognized in Barker that the right protects both the defendant‘s interest in fairness and society‘s interest in provid-
The Court of Appeals frankly admitted that “most of the delay must be attributed to the processes of this court,” 741 F. 2d 1184, 1191 (CA9 1984), a conclusion that is difficult to escape. This case involves appeals from pretrial rulings. The Court of Appeals had every reason to know that these appeals should have been ruled upon as expeditiously as possible. See that court‘s Rule 20. Yet it took over five years for the Court of Appeals to decide two appeals, one of them “expedited.” No complicated analysis is needed to identify the reason for the delay in this case.
I would hold, simply, that a nonfrivolous appeal by any party permits a reasonable delay in the proceedings. The number and complexity of the issues on appeal, or the number of parties, might permit a greater or lesser delay in a given case. The government, not the defendant, must suffer the ultimate consequences of delays attributable to “overcrowded courts,” ibid., even at the appellate level.9 In the
III
The majority has seriously misapplied our precedents in concluding that delay resulting when the government appeals the dismissal of an indictment is excludable for speedy trial purposes unless the defendant is subjected to actual restraints during that appeal. Its application of Barker v. Wingo to this case also undercuts the very purpose of the speedy trial right. I respectfully dissent.
Notes
The Speedy Trial Clause of the Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....”
The more stringent provisions of the Speedy Trial Act,
It is also instructive to compare the present case and MacDonald with respect to another Sixth Amendment right—the right to counsel. Surely a Government appeal under
In United States v. Gouveia, 467 U. S. 180 (1984), we held that the Sixth Amendment right to counsel is satisfied in a narrоwer class of cases than the speedy trial right. It therefore defies logic to conclude that respondents could be protected by the former, but not the latter, during the Government‘s appeal.
That neither Congress nor this Court has had any difficulty recognizing the fundamental difference between the Government‘s dismissal of an indictment and the court‘s dismissal, subject to appellate review, is clear from
Asking whether the indictment “exists” during the appeаl, while interesting from the standpoint of ontology, is of limited practical help. Yet it is significant that in the MacDonald situation the Government must go back to the grand jury and seek reindictment. When the district court dismisses an indictment, on the other hand, the court of appeals can reinstate the indictment with the stroke of a pen.
Respondents still dispute any characterization of the destroyed evidence as dynamite. Brief in Opposition 4, and n. 4; Brief for Respondents 4, n. 5. The Court of Appeals wrote:
“Each of the seven boxes was marked ‘High Explosives Dangerous’ and on the side had the following markings:
‘50 lbs
Gelex 2 1x8
70% Strength
D73MAO 7B’
“together with the logo of the DuPont company prominently displayed. Inside were red cylindrical sticks with heavy wrapping paper covering the contents and marked:
‘Explosives Dangerous
Gelex 2
70% Strength
E I Dupont De Nemours & Co. (Inc.)‘”
United States v. Loud Hawk, supra, at 1144-1145.
We follow the practice of the opinions discussing the issue and refer to the destroyed evidence as dynamite. 741 F. 2d 1184, 1187 (CA9 1984); United States v. Loud Hawk, supra, at 1143. Cf. United States v. Banks, 682 F. 2d 841, 843 (CA9 1982) (“explosive material“).
App. 40a-42a, and n. 4, 90a.
It is worth noting that the
Moreover,
Apparently relying on the fact that the defendant in Dillingham had to post a $1,500 bond, see 502 F. 2d, at 1234, the Government reads Dillingham to stand for the proposition that any restriction, no matter how insignificant, invokes the Speedy Trial Clause when no indictment is outstanding. See Tr. of Oral Arg. 19. Once again, neither the plain language of the Sixth Amendment nor any decision of this Court suggests this peculiar constitutional standard. Moreover, while an indictment and an arrest are comparаble in that each one constitutes a formal assertion of probable cause, there is no such symmetry between an indictment and incarceration or posting of bond. Simply put, the position advanced by the Government and the majority lacks even internal consistency.
The only sensible reading of Dillingham is that actual restraints, like other types of prejudice to a defendant, are relevant to the speedy trial balance, but are not prerequisites to application of the Speedy Trial Clause. See Barker v. Wingo, 407 U. S. 514, 533 (1972).
The Government is permitted to pursue some interlocutory appeals under
“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
“An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
“The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.
“Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 of this title.
“The provisions of this section shall be liberally construed to effectuate its purposes.”
This assumes, of course, that the defendant wants a speedy trial and is not intentionally hindering the government‘s attempt to provide one. That assumption may be open to question in this case. The majority points out that respondents’ strategically timed demands for a speedy trial ring somewhat hollow in light of respondents’ overall behаvior during the litigation. Were that the basis for the Court‘s opinion, I might be able to accept a remand to the Court of Appeals for further consideration of that factor. I am unable, however, to agree with the majority‘s analysis of the second Barker v. Wingo factor.