U.S. v. Loud Hawk, No. 83-3067

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before WALLACE and CANBY, Circuit Judges, and CRAIG; CANBY; WALLACE
• Citation: 741 F.2d 1184
• Decision Date: 30 August 1984
• Docket Number: No. 83-3067
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Moses LOUD HAWK, Russ James Redner, Dennis James Banks, and Darlene Pearl Nichols, aka KaMook Banks, Defendants-Appellees.

Page 1184

741 F.2d 1184 UNITED STATES of America, Plaintiff-Appellant,
v.
Kenneth Moses LOUD HAWK, Russ James Redner, Dennis James
Banks, and Darlene Pearl Nichols, aka KaMook
Banks, Defendants-Appellees. No. 83-3067. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Jan. 4, 1984.
Decided Aug. 30, 1984.

Page 1186

Kenneth S. Stern, Milwaukie, Or., for defendants-appellees.

Charles Turner, Asst. U.S. Atty., Portland, Or., for plaintiff-appellant.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE and CANBY, Circuit Judges, and CRAIG, District Judge ^*.

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CANBY, Circuit Judge:

This is the third interlocutory appeal arising from the government's efforts to prosecute these defendants. Although it has been more than eight years since defendants were originally arrested and indicted, they still have not been brought to trial so that their guilt or innocence may be determined. We are now asked to decide whether the delay in bringing defendants to trial has violated their constitutional right to a speedy trial.

I.

The facts giving rise to the present charges and the first two appeals in this case are adequately set forth in our two previous opinions. See United States v. Banks, 682 F.2d 841, 842-44 (9th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 755, 74 L.Ed.2d 972 (1983); United States v. Loud Hawk, 628 F.2d 1139, 1141-43 (9th Cir.1979) (en banc), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980). We merely summarize them here.

Defendants were arrested on November 14, 1975, after being stopped by the Oregon State Police on the basis of information supplied by the FBI. A search of defendants' vehicles pursuant to a valid search warrant uncovered several firearms, a quantity of what the police believed to be dynamite, and apparatus for the manufacture of time bombs. Rather than preserving the dynamite or transferring it to a place of safekeeping, the state authorities decided to destroy it without notification to defendants.

On December 22, 1975, a federal grand jury returned a five-count superseding indictment. The first three counts related to defendants' alleged possession of dynamite (the dynamite counts), and the fourth and fifth charged defendants with unlawful possession of firearms (the nondynamite counts). Prior to trial, defendants successfully moved for suppression of any evidence relating to the destroyed dynamite. The government sought immediate review of the suppression order under 18 U.S.C. Sec. 3731. The district court, however, denied the government's request for a continuance to permit it to pursue its appeal of the suppression order, and ordered that trial proceed as scheduled on May 12, 1976. When the day for trial arrived, the government announced it was not ready. Because of the unwillingness of the government to proceed to trial, the district court, acting pursuant to Fed.R.Crim.P. 48(b), dismissed the indictment with prejudice for unnecessary delay. The government filed its notice of appeal in open court on the same day.

We consolidated the two appeals, and a panel of this court initially affirmed the dismissal. However, at the instance of the government, we voted to take the appeal en banc and reversed the suppression order. In analyzing the propriety of the district court's order dismissing the indictment, we examined the dynamite counts and the nondynamite counts separately. As to the former, we held that the delay necessitated by the government's appeal of the suppression order had not been "unnecessary" for purposes of Rule 48(b). United States v. Loud Hawk, 628 F.2d at 1149-50. Rather, we reasoned that the delay was necessary to the meaningful exercise of the government's statutory right to appeal the suppression order. As to the nondynamite counts, however, we held that the delay had been "unnecessary" because the suppression of evidence relating to dynamite had nothing to do with the nondynamite charges, which could have proceeded to trial. Id. at 1150. Nevertheless, we decided that dismissal of the nondynamite counts with prejudice was inappropriate because the government had not been forewarned that dismissal with prejudice would result from a failure to proceed with the prosecution. Id. at 1151. Accordingly, we ordered denial of defendants' motion to suppress, reinstatement of the dynamite counts, and reconsideration of the dismissal of the nondynamite counts insofar as the dismissal was with prejudice. Following denial of certiorari, our mandate issued on March 12, 1980, three years and ten months after the indictment had been dismissed

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by the district court and appeal taken therefrom by the government.

On remand, the district court, at the urging of defendants, ruled that the nondynamite counts could not simply be reinstated. Consequently, the government was compelled to go back before the grand jury and seek a second superseding indictment. The indictment which resulted was returned on June 18, 1980. It again charged defendants with four of the five original counts in the first superseding indictment and in addition charged defendants with three new counts. The addition of these new counts precipitated a defense motion to dismiss the indictment for vindictive prosecution. On August 8, 1980, the district court granted the motion as to KaMook Banks and dismissed all counts in the indictment pertaining to her. The motion as to the other defendants, however, was denied. The government appealed the dismissal as to KaMook Banks, and the other defendants appealed the denial of the motion as to them. We reversed the dismissal as to KaMook Banks, except that we upheld the dismissal of the added count; we ordered all but the added count reinstated. United States v. Banks, 682 F.2d at 846. As to the other defendants, we dismissed the appeal for lack of jurisdiction. Id. at 844. We denied defendant's request for rehearing, and the Supreme Court refused certiorari. Our mandate issued on January 31, 1983, two years, five months after appeal was taken from the district court's order and seven years, two months, and seventeen days after defendants were arrested.

Trial was rescheduled to being on April 11, 1983. The government, however, successfully obtained a continuance, over the objection of defendants, until May 3, 1983. Subsequently, the court on its own motion continued the trial date until May 23, 1983. The trial was then rescheduled for June 13, 1983, for reasons not known to this court. Defendants objected to each of these continuances.

On March 21, 1983, the defendants moved for dismissal on the ground that the delay in bringing them to trial violated their right to a speedy trial guaranteed by the sixth amendment. By order of May 20, 1983, the district court granted defendants' motion and dismissed the indictment with prejudice. It concluded that the appropriate period within which to assess whether defendants had been denied their speedy trial right was the entire ninety-one month period between November 14, 1975 when defendants were arrested and June 13, 1983 when trial was finally set to begin. It reasoned that the entire period of delay should be analyzed under the speedy trial clause of the sixth amendment, rather than under the due process clause of the fifth amendment, because at all times during this period defendants were "accused" persons. Finding that the majority of the delay in this case was attributable to the two interlocutory appeals, the district court concluded that the seventy-five months consumed by the two appeals must be weighed against the government. Moreover, it found that defendants had adequately asserted their right to a speedy trial, and that they had been prejudiced by having to live with unresolved criminal charges for more than seven and one-half years and by impairment of their ability to defend themselves.

II.

Although the right to a speedy trial asserted by defendants is "one of the most basic rights preserved by our Constitution," Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967), no per se test has been devised to determine when the right has been violated. Instead, we must apply a rather flexible "functional approach" that attempts to give proper weight to the various interests at stake. Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). The primary factors to be considered are the length of the delay, the reasons for the delay, the degree to which defendants asserted their right to a speedy trial, and the extent of prejudice to the

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defendants caused by the delay. Id. at 530-33, 92 S.Ct. at 2191-93.

A. Length of Delay

In order to determine the length of delay for sixth amendment purposes, we must know when to begin counting and when, if ever, to interrupt counting. It is clear enough that the speedy trial clause does not apply "before a defendant is indicted, arrested, or otherwise officially accused." United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). We begin our count, therefore, with defendants' arrest on November 14, 1975. The question then is whether, and for what purposes, we must interrupt it.

The government first contends that we must exclude the periods during the interlocutory appeals when the indictments had been dismissed and not yet reinstated. During the first interlocutory appeal, the indictment was dismissed as to all defendants on May 12, 1976, and a superseding indictment was not returned until June 18, 1980. During the second interlocutory appeal, the superseding indictment was dismissed as to KaMook Banks on August 8, 1980, and was not reinstated as to her until our mandate issued on January 31, 1983. ¹ The government contends that these periods must be excluded on the authority of United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

In MacDonald, the Supreme Court...