U.S. v. Simmons

• Decision Date: 24 May 1976
• Docket Number: No. 75-3251,75-3251
• Citation: 536 F.2d 827
• Parties: UNITED STATES of America, Appellant, v. James Henry SIMMONS, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 827

536 F.2d 827

UNITED STATES of America, Appellant, v. James Henry SIMMONS, Appellee.

No. 75-3251.

United States Court of Appeals, Ninth Circuit.

May 24, 1976.

Robert H. Westinghouse, Asst. U. S. Atty., (argued), Seattle, Wash., for appellant.

Irvin H. Schwartz, Federal Public Defender, (argued), Seattle, Wash., for appellee.

OPINION

Before BARNES, BROWNING and WRIGHT, Circuit Judges.

BARNES, Senior Circuit Judge:

In a two-count indictment, Simmons was charged with forging and uttering a United States Treasury check in violation of 18 U.S.C. § 495. The district judge dismissed the indictment with prejudice, holding that the government violated the defendant's Sixth Amendment right to a speedy trial. As a second rationale, the indictment was dismissed with prejudice under the authority of Rule 48(b) of the Federal Rules of Criminal Procedure. ¹ The government appeals from this order of dismissal on the ground that the district judge abused his discretion.

Before reaching the merits of this appeal, we review the chronology of events. The offense for which Simmons was indicted occurred on March 5, 1973. Even though incriminating statements against Simmons were obtained by Secret Service agents by the end of August, 1973, the indictment was not returned until April 15, 1975. Trial was scheduled for August 11, 1975. On May 2, 1975, counsel for the defendant requested access to the original check and handwriting exemplars for the purpose of having them examined by a handwriting expert. On June 6, 1975, the United States Attorney agreed to furnish the original documents which were requested by defense counsel. In Mid-July, 1975, government counsel sought to obtain the originals of the documents from the Secret Service in Washington, D.C., but the examiner retained them in Washington for the purpose of preparing demonstrative exhibits for trial. On August 6, 1975, only five days before trial was scheduled, the United States Attorney advised defense counsel that the documents had finally arrived from Washington and were available for examination by defendant's expert at the offices of the Secret Service in Seattle. Due to the difficulty of conducting the examination on such short notice, defendant's expert was unable to arrange his schedule until August 14, 1975. On August 11, 1975, it was learned that the case would not be tried until August 13, 1975. Later on August 11, 1975, the defendant moved for a continuance of the trial for at least one week. Such motion was based on presenting defendant's expert the opportunity to conduct his examination. Following a hearing on August 12, 1975, the district court dismissed the indictment with prejudice. Written findings of fact and conclusions of law and an order of dismissal were entered on August 20, 1975.

The issue presented on this appeal is whether the district court abused its discretion in dismissing the indictment with prejudice (1) under the Sixth Amendment right to a speedy trial, or (2) under Rule 48(b) of the Federal Rules of Criminal Procedure? Because we hold that the district court abused its discretion on both of the above grounds, we reverse its order dismissing the indictment with prejudice.

I. The Sixth Amendment Right to a Speedy Trial

In Klopfer v. North Carolina, ² the Supreme Court acknowledged that the right to a speedy trial "is as fundamental as any of the rights secured by the Sixth Amendment." ³ The standards by which this guarantee is to be judged were established by the Supreme Court in Barker v. Wingo. ⁴ The approach adopted by the Court was that of balancing the conduct of the prosecution and the defendant against one another on an ad hoc basis. Four factors must be examined in determining whether there has been a speedy trial violation: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." ⁵ No one of these four factors is either a necessary or a sufficient condition to support a finding that there has been a deprivation of the constitutional right to a speedy trial. Rather, these factors are related and must be considered together. "In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." ⁶

Applying the test promulgated by the Supreme Court in Barker, we begin our analysis with the length of the delay in this case. The length of delay between the alleged commission of the offense and the return of the indictment here was approximately twenty-five months, while the delay between the indictment and the order of dismissal was slightly less than four months. While a minority of the Supreme Court and some commentators have proposed that the particular protections guaranteed by the Speedy Trial Clause should take effect at both the pre- and the post-indictment stage, ⁷ such is not the law at the present time. The Supreme Court made this fact manifestly clear in United States v. Marion, ⁸ where Mr. Justice White, writing for the Court, held: "(I)t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." ⁹

In his order of dismissal, the district judge observed that if he had granted a continuance, rather than dismissing with prejudice, such continuance probably would have been from six to eight weeks. ¹⁰ Hence, delay in this case between indictment and trial would have been approximately six months. As both the Supreme Court and this Court have recognized "(t)he length of the delay is to some extent a triggering mechanism." ¹¹ Unless there is a delay that is presumptively prejudicial, there is no need to inquire into the other factors of the balancing process. The length of delay that will necessitate such an inquiry is dependent upon the facts of each case. ¹² Although a borderline case, we hold that the six-month delay here was sufficiently prejudicial to trigger an inquiry into the other factors. We reach this conclusion because "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." ¹³

We next turn to the reason for the delay. Upon reviewing the record, we conclude that the government's culpability was negligence and not deliberate. Although weighted less heavily than deliberate delays, negligent conduct "nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the Government rather than with the defendant." ¹⁴

Concerning the defendant's assertion of his right to a speedy trial, we note that there was no such formal demand here prior to the dismissal. Although this right cannot be presumptively waived, the neglect of asserting it is a relevant factor to be considered in determining whether there has been a speedy trial violation. The Supreme Court has held that the defendant's assertion of this right is entitled to strong evidentiary weight and that his failure to demand a speedy trial will make it difficult for him to prove that there was an abridgement of this guarantee. ¹⁵

The last factor to be considered is prejudice to the defendant. The Supreme Court has identified three interests of the defendant which the Speedy Trial Clause is designed to protect: "(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." ¹⁶ Of these three interests, only the second one is of concern here. In dismissing the indictment with prejudice, the district court stated: "Any further delay would unnecessarily continue the restraints upon Simmons' liberty and the emotional strain to which he has been subjected." ¹⁷

Conclusory allegations of general anxiety and depression are present in almost every criminal prosecution. We find nothing in the record which distinguishes the emotional strain experienced by Simmons from other criminal defendants. Further, during this period, Simmons was at liberty on his personal recognizance. We therefore conclude that such allegations, as are present here, constitute a showing of minimal prejudice of a type normally attending criminal prosecution. This showing, without more, did not deprive Simmons of his right to a speedy trial. ¹⁸

Upon considering the above factors of the balancing process, we reach the following conclusions. First, the length of delay between the indictment and the time trial would have been held had a continuance been granted was relatively short. This finding is particularly true in view of the fact that in Barker the Supreme Court did not hold that there was a speedy trial violation even though the length of delay was well over five years. ¹⁹ Second, the reason for the delay was, in part, due to the government's negligence. This deficiency is, however, outweighed by two counterbalancing factors. These factors are (1) that the defendant did not assert his right to a speedy trial, and (2) most importantly, the absence of serious prejudice caused by the delay. Taking into account these counterbalancing factors plus the fact that the delay in this case was relatively short, we hold that the district court abused its discretion in finding that the defendant had been denied his constitutional right to a speedy trial.

II. Dismissal with Prejudice under Rule 48(b) of the Federal Rules of Criminal Procedure

As a second rationale for dismissing the indictment with prejudice, the district court relied upon Rule 48(b) of the Federal Rules of Criminal Procedure. In pertinent part, that Rule provides: "(I)f there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint." As the government acknowledges, this Rule grants the trial court inherent power, derived from common law, to dismiss a case for...