United States v. Dyson

• Decision Date: 07 November 1972
• Docket Number: No. 72-1889 Summary Calendar.,72-1889 Summary Calendar.
• Citation: 469 F.2d 735
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel DYSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

469 F.2d 735 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel DYSON, Defendant-Appellant.

No. 72-1889 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 7, 1972.

COPYRIGHT MATERIAL OMITTED

E. Louis Adams, Albany, Ga. (Court appointed), for defendant-appellant.

William J. Schloth, U. S. Atty., Earl W. Carson, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

On June 17, 1969, the personnel managers of the Delaware State Hospital in Farnburst, Delaware, expected to augment their staff by the addition of conscientious objector Nathaniel Dyson who was assigned to the hospital by his local draft board in Albany, Georgia. Dyson thwarted their hopes and plans when he failed to show.

Although the Georgia state headquarters for the Selective Service System suggested on September 26, 1969, that Dyson's file should be submitted to the United States Attorney's office for the District of Delaware for criminal prosecution under the provisions of 50 U.S.C.A. App. § 462, no indictment was returned there until May 14, 1970.¹ On May 22, 1970, Dyson requested that the Delaware District Court transfer his case to the Middle District of Georgia pursuant to F.R.Crim.P. 48(b). That Court readily acceded, and on June 4, 1970, the records in the air-tight case against Dyson were received in the United States Attorney's office in Albany, Georgia. For some unknown reason the case was not set for trial until April, 1972.

Meanwhile in the same town, Nathaniel Dyson was quietly awaiting trial.

The case, tried April 3, 1972, resulted in a jury verdict of guilty and a sentence of two years. In this timely appeal the sole issue confronting the Court is whether or not the trial judge erred in denying defendant's motion to dismiss the indictment for want of an expeditious or speedy trial. Finding that he did, we must remand.

The claim of denial of a speedy trial is normally presented on the basis of the explicit language of the Sixth Amendment.² In the case at bar, however, the motion also embraces the stringent language of 50 U.S.C.A. App. § 462 — the section under which Dyson was convicted: "Precedence shall be given by courts to the trial of cases arising under this title, and such cases shall be advanced on the docket for immediate hearing".³ Dyson contends that he is protected not only by the overriding umbrella of the Sixth Amendment, but also by this specific statutory mandate. The Government, by directing our attention to the brief legislative history of the statute, urges that the call for expeditious action was intended by the Congress as a warning to would-be draft dodgers and a reassurance to the American public. Thus, the argument goes, it would be antithetical to construe the Act as conferring appreciable rights on the accused.

Whatever may have been the moving force behind this congressional action, several things are plain. The first is that Congress concluded that the Sixth Amendment speedy trial standard was not sufficient. There were, Congress may well have thought, too many variables to a constitutional standard which must be emphatic yet flexible. Requiring "expedition" as a goal speedier than speedy, we must, in the absence of a strong showing of legislative purpose to the contrary, assume that Congress meant for this to be applied even-handedly. Draft refusers could expect to be brought to book quickly, but likewise they had the right to demand similar expedition of the awesome criminal sanction.

Of course all defendants are entitled to the fundamental right to a speedy trial. Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Barker v. Wingo, 1972, 407 U. S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Since the statute requires defendants under prosecution for violations of the Universal Military Training and Service Act to be brought to trial at a pace faster than speedy and, hence, perhaps before other defendants on the court's calendar, it is obvious that Congress intended to insure a more rapid trial for offenses of this type. And for a right — either to "expedited" or Sixth Amendment "speedy" — so personal to the person being pursued, it would be incongruous to think that Congress entertained the notions in the Government's argument that a defendant has no standing to invoke a public right under the statute. This runs afoul of the myriad cases which hold that the right to a speedy trial is a unique right endemic to both the Government and the accused. Beavers v. Haubert, 1905, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950; Barker v. Wingo, supra; United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Klopfer v. North Carolina, supra; United States v. Auerbach, 5 Cir., 1969, 420 F.2d 921.

The idea that statutory standards concerning the right to a speedier trial which are perhaps more stringent than those constitutionally demanded may be effectuated by the courts or legislature is not new. The Supreme Court noted this in its recent review of the constitutional right. Barker v. Wingo, supra, 407 U.S. at 522-523, 92 S.Ct. at 2188, 33 L.Ed.2d at 112-113 & n. 17. See ABA, Project on Minimum Standards for Criminal Justice, Speedy Trial § 2.1 and comments. According to a recent pronouncement of the United States Court of Military Appeals, Congress itself intended to formulate standards for speedy trials in courts-maritial which are more rapid than constitutionally required when it enacted Article 10 of the Uniform Code of Military Justice, 10 U.S.C.A. § 810. United States v. Burton, 1971, 21 U.S.C.M.A. 112, 44 C.M.R. 166.

From the standpoint of achieving an acceptable analytical approach to the statutory requirement and determining whether it has been satisfied, we start with the proposition that the maximum delay permissible under the statute cannot exceed the minimum delay allowed by the constitutional norm. Consequently, while not passing directly upon the Sixth Amendment claim, the nature of the Sixth Amendment's guarantee is highly relevant.

Speedy

The Sixth Amendment guarantee of a speedy trial is in many ways unique among those rights secured to criminal defendants by the Constitution. In the first place, there is a direct societal interest in having the right, not merely available, but secured. Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, 112-113. Certainly benefits from other rights inure ultimately and vicariously to society at large, but none so directly as the right to a speedy trial. For example, there is no direct societal benefit when a heroin pusher must be set free because the Fourth Amendment and its current constitutional concomitant the exclusionary rule require that illegally seized evidence be suppressed. Indeed, there is palpable harm! Yet, we view the right to be free from unreasonable intrusions upon our privacy so highly that we are willing to pay this price to secure it. By contrast, society is directly benefited when a criminal is brought swiftly to justice and directly harmed when he is not. Similarly, it may frequently be advantageous for the defendant not to have a speedy trial — witnesses may die, evidence may disappear, and the like.

Mr. Justice Powell's recent assessment of the right for a unanimous Supreme Court isolated four factors which must be appraised in each case to determine if the accused has been denied his right: i "Length of delay, ii the reason for the delay, iii the defendant's assertion of his right, and iv prejudice to the defendant." Barker v. Wingo, supra, 407 U.S. at 530, 92 S. Ct. at 2192, 33 L.Ed.2d at 117. Several other considerations are also inherent in the ad hoc approach which the Barker decision requires — the gravity of the charged offense and likelihood of repetition, the number and complexity of legal and factual issues involved, the availability of evidence, etc. In Barker the Court indicated that in considering these factors it would employ a qualitative balancing test to make its constitutionally required determination in each case. The Court did, however, sanction the promulgation, by courts or legislatures, of a non-constitutional quantitative test. Barker v. Wingo, supra at 522-523, 92 S.Ct. at 2188, 33 L.Ed.2d at 112-113 & nn. 19, 29. See generally, ABA, Project on Minimum Standards for Criminal Justice, Speedy Trial § 2.1 & Comments; Godbold, Speedy Trial — Major Surgery for a National Ill, 1972, 24 Ala.L.Rev. 265, 289-94. Many states have established fixed statutory periods for this purpose. E. g., Cal.Pen.Code § 1382. Courts have likewise established non-constitutional quantitative standards through their rulemaking powers,⁴ Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (1971) (90 days if defendant is incarcerated; 6 months maximum in every case) or through appellate supervision of trial court procedure. United States v. Burton, 1971, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (3 month rule for trial by court-martial). Cf. Hinton v. United States, 1969, 137 U.S.App.D.C. 388, 424 F.2d 876 (one year delay makes a prima facie case for denial of speedy trial). Because of the many variables which define what is "speedy" in a given context, we have refused in the past to establish a fixed time rule.⁵ Bradford v. United States, 5 Cir., 1969, 413 F.2d 467; McLeod v. United States, 5 Cir., 1971, 455 F.2d 933. As Mr. Justice Powell indicated in Barker, there is much to commend a rule of this type — but it is not constitutionally required. Using the Barker approach requires analysis of the four criteria.

In Waugaman v. United States, 5 Cir., 1964, 331 F.2d 189, 190, we said: "Although courts recognize that the test in this area cannot be a mechanical one, there is nothing very speedy about a trial occurring 2 1/2 years after indictment." Yet, in United States v. Lane, 5 Cir., 1972, 465 F.2d 408 we upheld a conviction...