U.S. v. Litton Systems, Inc., 83-4064

• Citation: 722 F.2d 264
• Decision Date: 13 January 1984
• Docket Number: No. 83-4064,83-4064
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. LITTON SYSTEMS, INC., d/b/a Ingalls Nuclear Shipbuilding Division, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 264

722 F.2d 264

UNITED STATES of America, Plaintiff-Appellant, v. LITTON SYSTEMS, INC., d/b/a Ingalls Nuclear Shipbuilding Division, Defendant-Appellee.

No. 83-4064.

United States Court of Appeals Fifth Circuit.

Jan. 13, 1984.

Joseph A. Fisher, III, James A. Metcalfe, Asst. U.S. Attys., Alexandria, Va., Sara Criscitelli, Appellate Section, Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

E.L. Brunini, George P. Hewes, III, Charles P. Adams, Jr., Jackson, Miss., Stephen J. Mathes, Bruce W. Kauffman, Philadelphia, Pa., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN and RANDALL, Circuit Judges, and HUNTER ^*, District Judge.

EDWIN F. HUNTER, Jr., District Judge:

This case involves a criminal charge that $37,000,000 claimed for increased costs by Litton's nuclear shipbuilding facility in Pascagoula, Mississippi was fraudulent (18 U.S.C. 287). Litton filed a motion to dismiss the indictment, contending that because of delay and prejudice, further prosecution would violate its Sixth Amendment right to a speedy trial. Litton also urged dismissal on the basis of Rule 48(b) of the Federal Rules of Criminal Procedure. The district court, 557 F.Supp. 568, found a constitutional deprivation of the speedy trial guarantee and granted the motion to dismiss. Alternatively, the district court noted that in the event the delay had been found to be less than constitutional in dimension, it would have exercised its discretion and granted Litton's motion under Rule 48(b). ¹ The United States appeals the order of dismissal and requests that the case be remanded for trial.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is, of course, the controlling authority. There, the Supreme Court categorically rejected inflexible approaches and enunciated a balancing test, in which the conduct of both the prosecution and the defendant are weighed. Id. at 530-533, 92 S.Ct. at 2191-2193. The balancing test requires the consideration After carefully considering all the facts, we conclude that, on balance, Litton's Sixth Amendment rights to a speedy trial ² have not been violated, and that the "unsatisfactory severe remedy of dismissal" was not appropriate in the particular context of this complex case. 407 U.S. at 522, 92 S.Ct. at 2188.

                of at least four factors:  the length of the delay, the reason for the delay, the timeliness and strength of the defendant's assertion of his right, and the prejudice accruing to the defendant from the delay.  No single factor is determinative;  these "must be considered together with such other circumstances as may be relevant."    407 U.S. at 533, 92 S.Ct. at 2193
                

BACKGROUND

Various contentions are made in argumentative fashion in explanation of the extensive delay. We find little dispute as to the basic facts as reflected by the record.

(1) In 1968, the Ingalls Nuclear Shipbuilding Division of Litton Systems, Inc. ("Litton") contracted with the United States Navy for the construction of three nuclear submarines.

(2) Two years after the contract date, Litton filed a claim with the Navy seeking approximately 37 million dollars as a result of increased costs allegedly incurred by late delivery of government-furnished materials. The claim was brought before the Armed Services Board of Contract Appeals (ASBCA), which in April 1976 awarded Litton more than 16 million dollars. ³ This award was pegged on what the government now refers to as the false claim document, upon which the indictment is based.

(3) Litton filed a complaint in the United States Court of Claims seeking to recover the amount awarded. The United States counterclaimed for fraud. ³

(4) January 17, 1977. Assistant Attorney General Richard Thornburg requested the United States Attorney to present the matter to a grand jury for the purpose of seeking an indictment. Attorney General Griffin Bell approved prosecution of the case on February 7, 1977.

(5) Litton expressed a desire to avoid prosecution and to return the matter to the Board along the lines of a proposal previously made by the government. The government attorney (Dunham) indicated that the prosecutors were now opposed to such a disposition but that he would forward any proposal from Litton to the Department of Justice for review. At Litton's request, the Attorney General, his principal assistants for matters pertaining to criminal prosecutions and fraud, and the United States Attorney and his assistants met with Litton's representatives. At the conclusion of this conference the Attorney General found no justification for terminating the prosecution. United States v. Litton Systems, Inc., 573 F.2d 195-198 (4th Cir.1978).

(6) April 6, 1977. A federal grand jury in Alexandria, Virginia indicted Litton for filing a false claim in violation of 18 U.S.C. 287.

(7) April 11, 1977. Litton entered a plea of not guilty and filed a notice that the case was potentially complex. The court set May 20th for a hearing on pre-trial motions and set trial for June 6, 1977.

(8) May 2, 1977. Litton filed numerous motions, including one for a continuance of the trial date. In support of its motion defendant cited cases for the proposition that "myopic insistence upon expeditiousness" can render a defense ineffective, and that "concern with calendar dispatch" should not triumph over the right to a fair trial.

(9) May 17, 1977. The United States filed a formal opposition to defendant's motion for a continuance.

(10) May 25, 1977 (10 days before the government was prepared to begin trial). The district court dismissed the indictment on the grounds of prosecutorial misconduct, concluding that the government had used the implied threat of an indictment in an effort to have Litton submit its claim to the ASBCA for reconsideration.

(11) April 4, 1978. The Fourth Circuit vacated the dismissal order. United States v. Litton Systems, Inc., 573 F.2d 195.

(12) October 2, 1978. The Supreme Court denied Litton's petition for certiorari. 439 U.S. 828, 99 S.Ct. 101, 58 L.Ed.2d 121.

(13) November 28, 1978. The case was remanded to the United States District Court for the Eastern District of Virginia.

(14) December 1, 1978. Litton moved for a change of venue to the Southern District of Mississippi.

(15) December 4, 1978. The United States filed a motion for an order setting a trial date.

(16) December 8, 1978. Litton's motion for a change of venue was granted.

(17) December 20, 1978. The case was docketed in the Southern District of Mississippi. At that time the government was again prepared to go to trial.

(18) January 25, 1979. An untranscribed status conference was held at Jackson, Mississippi (Russell, J.). Mr. Frank W. Dunham, Jr., who was in 1978 the First Assistant United States Attorney for the Eastern District of Virginia, and who was later appointed a Special Assistant United States Attorney for the handling of this case, filed a detailed affidavit in the record. It reveals that at this conference, Litton objected to the government's request that a trial date be set. Litton also represented that it had employed new counsel (see March 7 letter from Brunini to Honorable Dan C. Russell, Jr.) and that it would take more than one year to properly prepare for trial.

(19) January 29, 1979. The district court entered three orders. One "ordered defendant to produce for the government within 60 days any document it intended to use at trial." ⁴ The second order, upon joint motion, found the case "as a whole, is so unusual and so complex due to the nature of the proceedings that it is unreasonable to expect adequate preparation within the periods of time established by ... the Speedy Trial Act ... and ... the ends of justice served by the entry of this Order outweigh the best interests of the public and the defendant in a speedy trial." Finally, the court entered an order specifying the manner in which motions and objections should be filed. This order noted that the parties were to file their motions within 40 days.

(20) March 7, 1979. Litton filed several motions, including one to dismiss upon statute of limitations and for alleged grand jury violations. It also requested a non-jury trial.

(21) March 19, 1979. The government filed objections to Litton's motions, arguing that with the exception of the motion for a non-jury trial, they restated previous motions denied in Virginia. These objections were filed directly with the district judge, together with a letter that closed: "We look forward to receiving further directions from the court as to a hearing date." No directions followed.

(22) December 19, 1979. The parties met and agreed that the prosecution would be stayed during settlement negotiations.

(23) January 23, 1980. Litton's attorney wrote to the United States Attorney confirming that negotiations were ended. The letter stated that "it is understood that the parties' agreement not to take any further action concerning the criminal case during the pendency of negotiations is terminated."

(24) January 13, 1982. Admiral Hyman Rickover wrote to Attorney General William French Smith "Over the past decade I have documented and reported to Defense Department officials numerous examples of false claims submitted by three major shipbuilders, Litton, General Dynamics, and Tenneco. The Navy, after reviewing these reports, forwarded them for investigation by the Justice Department. Today, after years of effort, it appears that the Justice Department is systematically closing down these investigations--either overtly or by inaction--even though the claims are demonstrably false and those who have investigated them have, I believe, recommended to their superiors that indictments be sought. In view of the Justice Department's poor record in this area, and its impact on Government procurement, I am bringing this matter to your attention with my recommendations for...