UNITED STATES v. SIMMONS

OPINION

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 want of prosecution, whether or not there has been a Sixth Amendment violation.20 Thus, this power of dismissal is independent of constitutional considerations, and is derived from the court's supervisory authority in regard to its own jurisdiction.21

The government contends, however, that unless there has been a Sixth Amendment violation, dismissal under Rule 48(b) must be without prejudice. As authority for this proposition, the government directs our attention to two earlier decisions of this Circuit, United States v. Apex Distributing Company,22 and Cohen v. United States.23 We disagree with such reliance. Our holding in Cohen never confronted the issue whether dismissal with prejudice, when there has been no constitutional deprivation, is permissible. Rather, that holding dealt with whether dismissal for non-prosecution could be without prejudice.24 The Apex decision presents a more difficult question. It appears to reject dismissal with prejudice except where such dismissal is on the merits.25 Counterbalancing Apex is our most recent pronouncement on this issue in United States v. Richter.26 In Richter, Judge Wallace, writing for the Court, held that dismissal with prejudice for failure to comply with a discovery order was unwarranted under the "unique facts of [that] case."27 The opinion strongly implies, however, that under a different set of circumstances, dismissal with prejudice would have been warranted.

In determining whether dismissal under Rule 48(b) may be with prejudice, even though there has been no constitutional violation, we find recent decisions in the Second and Tenth Circuits to be particularly relevant. In United States v. Furey,28 decided last year, the Second Circuit reaffirmed its earlier holding in Hilbert v. Dooling,29 that "it is within the court's inherent power to dismiss a prosecution with prejudice for prosecutorial delay not rising to constitutional dimensions . . .."30 In Furey, the government cited our decisions in Cohen and Apex to support its contention that a dismissal with prejudice is proper only when there has been a Sixth Amendment abridgement. Specifically referring to our holdings, the Second Circuit replied: "Cases cited by the government for the proposition that dismissal with prejudice is proper only when the Sixth Amendment is invoked are not only distinguishable but do not support such a rule."31 Similarly, in a decision rendered a year ago, the Tenth Circuit in United States v. Stoker32 said that a dismissal under Rule 48(b) may be with prejudice even though there has been no constitutional violation. The Court held:

Hence, although dismissal not arising from a constitutional violation is normally without prejudice, the facts and circumstances of a particular case may very well justify dismissal with prejudice.

Based upon our decision in United States v. Richter and the decisions rendered by other circuit courts discussed supra, we hold that under Rule 48(b) it is within the court's inherent power to dismiss a case with prejudice for want of prosecution, whether or not there has been a Sixth Amendment violation.

The government argues, however, that even if such a dismissal with prejudice is authorized by Rule 48(b), such power should be utilized with caution and only after a forewarning of the consequences. Upon examining the relevant authorities, we agree with the government.

In reaching the above conclusion, the Seventh Circuit's decision in United States v. Clay34 is particularly helpful. In Clay, Mr. Justice Stevens, then a circuit judge, stated:

Even more on point than Clay is the Second Circuit's holding in United States v. Furey.36 As discussed previously, the Furey court held that the court has the authority to dismiss the case with prejudice under Rule 48(b) for prosecutorial delay, notwithstanding the fact that there has been no constitutional violation. In so holding, the Court was interpreting the validity of the dismissal-with-prejudice sanction (Rule 4) of the Eastern District of New York Plan for the Prompt Disposition of Criminal Cases promulgated pursuant to Rule 50(b) of the Federal Rules of Criminal Procedure.37 Rule 4 of the District Court Plan requires the government to "be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried . . . whichever is earliest." If the government does not meet this deadline and if the offenses charged are non-capital, the defendant may move for dismissal of the indictment. Unless there exist sufficient grounds for tolling any portion of the six-months period, "the court shall enter an order dismissing the indictment with prejudice unless the court finds that the government's neglect is excusable, in which event the dismissal shall not be effective if the government is ready to proceed to trial within ten days."38

Thus, the above rule specifically provides for dismissal with prejudice if the government does not adhere to the imposed time limits. As such, the rule clearly forewarns the United States Attorney that he must comply with its requirements or face the consequence that the indictment will be dismissed with prejudice.

Although the time limits imposed by the Speedy Trial Act of 197439 were not applicable to this proceeding, we believe that the Act is relevant to show that dismissal with prejudice not arising from a constitutional violation should be exercised with caution and only after a forewarning of the consequences. Upon examining the Act, we note that it provides for a definitive time limit within which the accused must be brought to trial.40 To enable the federal courts to fully adhere to these time limits, the Act takes effect over a gradual period.41 In addition, none of the time limits provided for by the Act will take effect until "on or after the date of expiration of the twelve-calendar-month period following July 1, 1975."42 Congress, however, provided an interim plan which commenced ninety days following July 1, 1975, and which terminates on the date immediately before the expiration of the above twelve-calendar-month period.43 This interim plan relates only to those defendants who are incarcerated solely because they cannot pay bail and to released persons who are awaiting trial and have been designated as being of high risk.44

Most important to our inquiry here, the Act specifically provides that if the defendant is not brought to trial within the required time limit, excluding periods permitted by justifiable delays, "the information or indictment shall be dismissed on motion of the defendant."45 The Act then states: "In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice."46

Thus, the Speedy Trial Act clearly provides that a dismissal with prejudice may occur even though there has been no constitutional violation. But in so providing, the Act requires that courts exercise caution in utilizing this procedure. Such caution is manifested by the consideration of various factors enumerated by the Act, plus other relevant factors which courts may independently employ in reaching the ultimate decision. More importantly, the Act clearly forewarns the United States Attorney that he must comply with the applicable time limits or face the possibility that the indictment or information will be dismissed with prejudice.

Upon considering the pertinent case law and the provisions of the Speedy Trial Act, we hold that even though it is within the court's inherent power under Rule 48(b) to dismiss a case with prejudice for want of prosecution, not arising from a Sixth Amendment violation, such power should be utilized with caution, and only after a forewarning to prosecutors of the consequences.

We now apply the above principle to the facts of the case presently before us. The defendant-appellee Simmons directs our attention to the Western District of Washington Plan for the Prompt Disposition of Criminal Cases promulgated pursuant to Rule 50(b) of the Federal Rules of Criminal Procedure.47 He argues that this Plan fulfills the two necessary requirements: (1) dismissal with prejudice where there has been no constitutional violation should be exercised with caution, and (2) such authority should be utilized only after the United States Attorney is forewarned of the consequences.

We next turn to the pertinent provisions of the Plan. Section 2(b) provides: "The trial shall commence . . . within 120 days if [the defendant] is not in custody." The effect of nonompliance with this time limit is stated in Section 4 of the Plan: "Subject to the power of the Court to dismiss a case for unnecessary delay, the failure to conform with the time limits herein prescribed shall not require the dismissal of the prosecution."48

As we have previously indicated, the district judge in this case observed that if he had decided to grant a continuance, rather than to dismiss with prejudice, such continuance probably would have lasted from six to eight weeks. Taking this factor into consideration, the delay here between indictment and trial would have been slightly less than six months. It is therefore clear that the 120-day requirement of Section 2(b) of the Plan has been violated.49

Our inquiry, however, must ask two additional questions: (1) was caution utilized by the district court in dismissing the case with prejudice, and (2) was the United States Attorney forewarned of this consequence of noncompliance (i. e., dismissal with prejudice)?

In regard to the first consideration, we note that the Plan, on its face, does not make reference to the use of "caution" by the district court. This omission, however, is not fatal. If the district judge, in his sound discretion, considers this factor in his decision, we believe that this requirement has been satisfied.50

It is unnecessary, however, for us to determine whether the requisite "caution" was exercised by the district court in this case. We will assume it was. Our conclusion is that the Plan fails to satisfy the second requirement, namely, that the United States Attorney was not forewarned that dismissal with prejudice might result as a consequence of noncompliance. Unlike the Eastern District of New York Plan and the Speedy Trial Act, the Western District of Washington Plan does not state that dismissal may, or must be, with prejudice. Upon careful examination, the Washington Plan does not even imply that dismissal may be with prejudice. Rather, if any conclusion is to be drawn from the language of the Plan,51 that conclusion is that failure by the government to comply with the pertinent time requirement may result in dismissal without prejudice. We utilize the word "may" here, for even if the time requirement is violated, the district judge still has discretion under the Plan not to dismiss the prosecution. Thus, there is no language in the Plan which forewarns the United States Attorney that a possible consequence of noncompliance with the applicable time limits is dismissal with prejudice.

Based upon the foregoing, we must therefore conclude that the district court abused its discretion in dismissing the indictment with prejudice under Rule 48(b) of the Federal Rules of Criminal Procedure.

III. Conclusion

We hold that the district court abused its discretion in dismissing the indictment with prejudice (1) under the Sixth Amendment right to a speedy trial and (2) under Rule 48(b) of the Federal Rules of Criminal Procedure. Accordingly we reverse the district court's order dismissing the indictment with prejudice, and remand for further proceedings below.