U.S. v. Traylor, 77-5790
| Citation | 578 F.2d 108 |
| Decision Date | 09 August 1978 |
| Docket Number | No. 77-5790,77-5790 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rudolph Beaucanon TRAYLOR, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
P. Bruce Kirwan, Federal Public Defender, John R. Martin, Asst. Federal Public Defender, Atlanta, Ga., for defendant-appellant.
William L. Harper, U.S. Atty., Gerrilyn G. Brill, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before COLEMAN, GEE and RUBIN, Circuit Judges.
Traylor, complaining of an eight-month delay between his arrest and indictment, appeals the district court's denial of his motion to dismiss. He alleges no specific prejudice resulting from the delay, other than his brief incarceration and matters pertaining to his release on bond. For its part, the government gives no adequate explanation for the long delay but simply states that the U.S. attorney handling the case was frequently absent from his office because of official duties in another town, military leave, and vacations.
Traylor's first problem is that the Speedy Trial Act has not yet become effective. Although the Northern District of Georgia has adopted a local Speedy Trial plan which, at the time of Traylor's arrest required that indictment occur no later than 60 days following arrest, 1 the local plan provides no sanctions for post-arrest, pre-indictment delay. To the contrary, it states that a failure to comply with the time limits prescribed "shall not require dismissal of the prosecution." It therefore does nothing to change the present rule that unnecessary delay in prosecution does not require dismissal unless constitutional rights have been violated. See United States v. Garcia, 553 F.2d 432 (5th Cir. 1977) (); United States v. Palmer, 502 F.2d 1233, 1234 n. 3 (5th Cir. 1974) ().
Fifth amendment due process considerations apply to oppressive pre-arrest and pre-indictment delay, see United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), but the more specific guarantees of the sixth amendment apply to the post-arrest delay at issue here. In the case of post-arrest, pre-indictment delay, the constitutional test adopted by this circuit demands that the defendant show "substantial actual prejudice" before dismissal of the prosecution is required. See Gravitt v. United States, 523 F.2d 1211, 1215 (5th Cir. 1975). Traylor does not attempt to show that the defense of...
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US v. Passman
...(1971); United States v. Ramos, 586 F.2d 1078 (5th Cir. 1978); United States v. Parker, 586 F.2d 422 (5th Cir. 1978); United States v. Traylor, 578 F.2d 108 (5th Cir. 1978); United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976), rehearing denied en banc 545 F.2d 168, cert. denied, 430 U.S.......
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U.S. v. Metz
...Speedy Trial Act Plan, III(10)(d). Consequently, only delay violating the sixth amendment would compel dismissal. United States v. Traylor, 578 F.2d 108, 109 (5th Cir. 1978), Cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 14, 1977, and his indictment came 64 days later, February 1......
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Ilae v. Tenn
...Accordingly, delays after arrest but before formal charges are filed have been analyzed under the Sixth Amendment. See U.S. v. Traylor, 578 F.2d 108, 109 (5th Cir. 1978) (holding that Sixth Amendment applies to post-arrest, pre-indictment delay); U.S. v. Hillegas, 578 F.2d 453, 460 (2d Cir.......
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U.S. v. Walters, 78-5323
...per se. See Edwards v. United States, 577 F.2d at 889; United States v. Greene, 578 F.2d 648 (5th Cir. 1978); United States v. Traylor, 578 F.2d 108 (5th Cir. 1978). In conclusion, applying the Barker criteria to all of the circumstances of this case, we hold that the appellant was not deni......