U.S. v. MacDonald, 79-5253

Decision Date18 December 1980
Docket NumberNo. 79-5253,79-5253
Citation632 F.2d 258
PartiesUNITED STATES of America, Appellee, v. Jeffrey R. MacDONALD, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Ralph S. Spritzer, Philadelphia, Pa., Bernard L. Segal, San Francisco, Cal. (Wendy P. Rouder, San Francisco, Cal., Michael J. Malley, Washington, D.C., Wade M. Smith, Raleigh, N.C., on brief), for appellant.

Brian M. Murtagh, Dept. of Justice, Washington, D.C., James L. Blackburn, Asst. U. S. Atty., Raleigh, N.C. (Patricia L. Holland, Atty., Dept. of Justice, George M. Anderson, U. S. Atty., Raleigh, N.C., on brief), for appellee.

Before BRYAN, Senior Circuit Judge and MURNAGHAN and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

Jeffrey R. MacDonald appeals convictions for second degree murder of his wife and one of his children and first degree murder of his other child. He has raised a number of issues as to the conduct of the trial and the rulings at trial by the district judge. He has also contended that his Sixth Amendment guarantee of speedy trial had been violated, and that there was delay so inexcusable and prejudicial as to have denied him the due process mandated by the Fifth Amendment.

Deciding as we do that MacDonald is correct on his Sixth Amendment contention, we do not reach the district judge's conduct and rulings at trial or the Fifth Amendment issue. With respect to the district judge's conduct and rulings at trial, it suffices to note that the case was a sensational, drawn-out one, both hotly contested and bristling with difficult issues. The district judge's handling of the heavy demands placed on him was admirable.

MacDonald's due process contention would require a demonstration that the delay was inexcusable and that actual prejudice occurred. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The requisite proof to make out a Sixth Amendment violation is no greater, and, if anything, on the facts of this case would be less, than that required to establish a Fifth Amendment violation. Under either amendment, unreasonable delay, covering essentially the same time frame must be shown. The presence of the probability of prejudice completes the necessary proof under the Sixth Amendment; the actuality of serious prejudice must be made out to validate a claim of denial of due process. Consequently, as the burden on MacDonald to show an abuse of constitutional proportions under the Sixth Amendment could not be greater than his burden under the Fifth Amendment, there is no occasion to address the due process argument.

The Supreme Court, in recent years has provided specific criteria for the balancing tests necessary to determine a Sixth Amendment speedy trial issue. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court said:

We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

Id. at 530, 92 S.Ct. at 2192.

In the same opinion, the Court identified three of the interests against which prejudice is measured:

This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.

Id. at 532, 92 S.Ct. at 2193.

On MacDonald's Sixth Amendment claim, we do not write on a clean slate. Prior to trial, MacDonald took an interlocutory appeal, and succeeded on the speedy trial issue, only to have the victory evaporate when the Supreme Court determined that, procedurally the matter was not ripe for review prior to trial. United States v. MacDonald, 531 F.2d 196 (4th Cir. 1976) (opinion by Butzner, J., joined by Russell, J.; Craven, J., dissenting), reversed on prematurity grounds, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), (hereafter MacDonald, First ).

Now, following trial and conviction, we are called upon again to address the question answered in MacDonald's favor by this Court in 1976.

The United States advances the argument that all of the criteria announced in Barker must be viewed in a different light from that in which the criteria were considered in this Court's 1976, MacDonald, First opinion. The reason, it contends, is that there has been a jury trial in the interim, and the facts developed at trial bear on the issues created by the four Barker factors.

The United States is only partially correct. The questions necessarily posed by the first three Barker factors were in the same posture both before and after trial. It is only the fourth factor, the question of prejudice, that must be viewed differently.

Since the Court's admirable resolution of these issues has not been affected by the facts developed at the intervening trial, we adopt the reasoning of MacDonald, First on the issues concerning the effect of the length of delay; the government's reason for the delay; and MacDonald's assertion of his right.

Length of Delay

The offending delay imposed by the government was not the time between the indictment and trial, but the lapse of time between the military arrest and trial. The military arrest was equivalent to civilian arrest and MacDonald was "subjected to 'actual restraints imposed by arrest and holding to answer a criminal charge.' " 531 F.2d at 204. It is inconsequential that the delay was the result of the accumulative action by a military and a civilian arm of government. "The sixth amendment, we hold, secures an accused's rights to a speedy trial against oppressive conduct by the government in its single sovereign capacity, regardless of the number and character of the executive departments that participate in the prosecution." Id.

The government argues that MacDonald, First was incorrect in stating that a 13-volume report of the Army's Criminal Investigation Detachment forwarded by the CID to the Justice Department in June, 1972, was accompanied by a recommendation of prosecution. However, the United States Attorney for the Eastern District of North Carolina made the recommendation that the matter be submitted to a grand jury within six months of June, 1972, yet nothing occurred until presentation to a grand jury began in August, 1974. In the interval the CID filed two supplemental reports analyzing the significance of physical evidence recovered at the scene of the crime on or shortly after February 17, 1970, the date of the tragic occurrence. The CID had balked at a request by the Justice Department for an additional investigation, suggesting instead the convening of a grand jury.

Viewing the situation as a whole, the unwarranted bureaucratic delay which MacDonald, First found had taken place is fully established regardless of the fact that a suggestion of grand jury presentation came from the CID, not in June 1972, but at some later time. The Justice Department was in possession of all the evidence from June 1972, and that is what is determinative as to the excessiveness of delay, not whether it had advice from some other government agency to take the step which is committed to it by law, and for which it is particularly equipped to make the requisite decision.

The government also has argued that the reasoning of Judge Butzner's opinion in MacDonald, First may not stand in light of the subsequent holding by the Supreme Court in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). However, that case involved facts different in a determinative way from those presented in the instant case. Lovasco's involvement in crime came to the government's attention almost immediately, just as in MacDonald's case. Yet there are two vital distinctions. First, a postal inspector's report was prepared linking Lovasco to the offenses one month after they were com mitted. In MacDonald's case over two years elapsed before the CID completed its report and forwarded it to the Justice Department. Seventeen months after the postal inspector's report was prepared, Lovasco was indicted. Prior to that time, there had been no arrest, no attendant publicity prior to the indictment. Thus, there was a second distinction of controlling importance between Lovasco's case and MacDonald's. MacDonald had been subjected to the interference with his life and affairs of the Army's arrest and investigation under conditions of extremely intrusive publicity. Lovasco was put to no similar interference prior to his indictment. As a consequence, the Supreme Court held in Lovasco that there was presented no viable speedy trial claim under the Sixth Amendment, 1 and turned its attention solely to the alternative assertion: that due process guaranteed by the Fifth Amendment had been denied. In MacDonald's case there was the kind of "arrest and holding to answer a criminal charge" which brings the Sixth Amendment into play. 531 F.2d at 202-04.

Thus, pre-indictment delay was deemed altogether irrelevant under the Sixth Amendment in Lovasco, whereas, being post-arrest in MacDonald's case, as well as pre-indictment, it is relevant. But, if the 17 month delay in Lovasco had been relevant, it was far more excusable than the delay of over two years in MacDonald's case. The latter was the product of sheer bureaucratic indifference and therefore weighs heavily against the government. In Lovasco's case there were other persons, whose involvement was evident, and whose likely criminality was apparent. Delay to explore possibilities of bringing the others to book contemporaneously with...

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