U.S. v. MacDonald, 79-5253

Decision Date18 December 1980
Docket NumberNo. 79-5253,79-5253
Citation635 F.2d 1115
PartiesUNITED STATES of America, Appellee, v. Jeffrey R. MacDONALD, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Bernard L. Segal, Stephen Siegel, Sara A. Simmons, San Francisco, Cal., Professor Ralph Spritzer, Philadelphia, Pa., Michael J. Malley, Washington, D. C., and Wade M. Smith, Raleigh, N. C., for appellant.

James L. Blackburn, First Asst. U. S. Atty., Raleigh, N. C., and Brian M. Murtagh, Atty., U. S. Dept. of Justice, Washington, D. C., for appellee.


The petition for rehearing is denied, Judge Bryan dissenting. A majority of the judges of the Court who are in regular active service has not voted in favor of rehearing en banc, and the request therefor is accordingly denied.

Annexed hereto are:

(1) Dissenting statement of Chief Judge HAYNSWORTH.

(2) Dissent of Circuit Judge DONALD RUSSELL, Circuit Judge WIDENER, Circuit Judge K. K. HALL and Circuit Judge PHILLIPS.

(3) Statement of Circuit Judge MURNAGHAN.

HAYNSWORTH, Chief Judge, dissenting:

Ordinarily, I think it inappropriate for judges to write in support of losing votes for an en banc rehearing. The situation presented here, however, is not ordinary, for the question which five of the ten judges in regular active service sought to have the en banc court consider has never been addressed in any of the panel opinions. In this very extraordinary case, I think the parties and the public are entitled to know the question which five of the judges sought to have argued before, and determined by, the full court.

Of course, preindictment delay may be relevant to a Fifth Amendment claim of deprivation of due process. That is true whether or not there had been an earlier indictment or arrest which had been terminated by dismissal or release. The relevance of such an interval between two separate proceedings to a Sixth Amendment claim of denial of a speedy trial, however, has never been adjudicated by this court. I would prefer not to express what may appear to be a considered opinion of it without plenary consideration of it by the full court, but denial of the rehearing forecloses that possibility. My tentative agreement with the position of the United States in its petition for rehearing was sufficiently firm, however, to prompt me to request a poll of the court on the suggestion of rehearing en banc and to vote for it.

Under these circumstances, it seems to me appropriate for Judges Russell, Widener, Hall and Phillips to give expression to their views and for me to file this tentative addendum in agreement with them that the interval between Dr. MacDonald's release by the Army and his later indictment is irrelevant to a consideration of his Sixth Amendment claim.

DONALD RUSSELL, WIDENER, K. K. HALL, and PHILLIPS, Circuit Judges, dissenting:

We dissent from the denial of en banc rehearing in this case. We do so primarily because the denial results in a complete failure by this Court to address a point raised by the Government in its petition for rehearing, which we regard as completely dispositive against any claim by the defendant under the Sixth Amendment. 1 The point raised is that, in assessing the length of delay under a Sixth Amendment claim, it is not appropriate to take into account periods between successive indictments during which a defendant was under no accusation.

Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), declares that the first question to be addressed in resolving every Sixth Amendment speedy trial claim, which is the claim on which the panel opinion reverses, is the determination of the "length of delay" in the prosecution. Unless such delay is sufficiently lengthy to be assessed as "presumptively prejudicial," 2 the claim of constitutional violation must fail and it is unnecessary for the Court to consider any of the other factors listed in Barker. Id. at 530, 92 S.Ct. at 2192. It is thus clear that it is crucially important to identify both the beginning and the ending date for computing "length of delay" in the prosecution, as that term is used in Barker, and as further defined in Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). The first opinion in this case 3 fixed both critical dates. The Court in that opinion found that the relevant period for computing "length of delay" was the period of "delay between the accusation and detention of MacDonald (under the military proceedings and his indictment in this proceeding which) was more than four and one-half years." 531 F.2d at 205. It fixed the beginning date as May 1, 1970, when the Article 32 military proceedings were begun against MacDonald. These proceedings the court considered to be the equivalent of a civilian arrest. 4 It identified the termination of the critical period as the return of the indictment. It did this because the defendant conceded that there was no "substantial delay" after indictment. Since the defendant was himself responsible for any real delay after indictment, he could not have avoided making such concession. 5 The court in MacDonald I proceeded to find that this delay of four and one-half years was sufficient to justify, under the Barker "triggering" test, "inquiry into the other factors that go into ... assessing MacDonald's claim that he has been denied a speedy trial." Id. at 205. The present panel opinion adopts this conclusion of MacDonald I. 6

Our point of difference with the present panel opinion, as well as with MacDonald I, is the inclusion in the computation of "length of delay" the period between the dismissal of MacDonald's military arrest in October, 1970 and January, 1975, when he was indicted. This was a period during which he was not under arrest, was not under indictment or any other form of legal accusation, civil or military. There was no charge pending against him, and thus there was neither a trial nor even a hearing which he could request or demand. In short, there was nothing to which a claim for a speedy trial could attach. From December, 1971 to January, 1975, he was practicing his profession without hindrance of any kind. If this period of time is eliminated from the period of delay found by the panel and by MacDonald I, the delay will be at most seven months, a period entirely too short to "trigger" further inquiry under Barker. See United States v. McGrath, 622 F.2d 36, 40-41 (2d Cir. 1980).

That this period between 1970 and 1975 when the defendant was free of any legal accusation of any kind is not to be counted in computing "length of time" is clearly established in the opinion of Judge McCree in United States v. Martin, 543 F.2d 577 (6th Cir. 1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 762, 50 L.Ed.2d 766 (1977); in fact, it can be argued that the entire period of time between the filing of the first indictment and its dismissal was thought by the Court in that case to be outside the period to be considered in evaluating delay in connection with the second indictment. The opinion of Judge McCree in that case is directly on point. In Martin, the defendant was charged under an indictment returned in August, 1972. Those charges were dismissed in January, 1973. 7 A second indictment was filed in December, 1974 and the defendant was tried and convicted in December, 1975. He contended both at trial and on appeal that the delay from his first indictment to his trial in December, 1975 violated his speedy trial rights under the Sixth Amendment. In dismissing the contention and in holding that the period between the dismissal of the first indictment and the return of the second, if not the entire period between the first and second indictments, was to be disregarded in calculating "length of delay" under Barker, Judge McCree said:

The Sixth Amendment right to a speedy trial does not attach until the formal charge, the trial of which is alleged to have been inordinately and prejudicially delayed, is made. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Because there was no indictment which could have been tried in the period between January 1973 and December 1974, we cannot say that a speedy trial was delayed during that time. The remaining time is not remotely comparable to the five year delay which provoked the analysis in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Even if we were to include the five months between the filing and dismissal of the earlier charges in this case, the total period of delay would still be less than the time between Barker's first objection to delay and Barker's trial. Even that period was insufficient to show a violation of Barker's Sixth Amendment rights. Id. at 579. (Emphasis added.)

Moreover, Congress, in enacting the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq., has in essence given legislative imprimatur to the rule announced by Judge McCree in Martin, at least its exclusion of the period of time between the dismissal of an earlier indictment and the return of a second indictment. Thus, that Act provides that the period between the dismissal of an earlier indictment and the return of a second indictment for the same offense "shall be excluded * * * in computing the time within which the trial of any such offense must commence" under the Act. 18 U.S.C. § 3161(h). And this is true whether the Government or the defendant has sought dismissal of the earlier indictment. The only distinction which the Court makes between the situation where the Government makes the motion and where the defendant makes the motion, is that the time between the return of the first indictment and its dismissal is included in computing the delay if the dismissal is at the instance of the Government but not if the dismissal is on the motion of the defendant. But, in both situations, we repeat, the period between dismissal of the first indictment and the return of the second is...

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