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.
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,
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.
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."
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.
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."
Conclusory allegations of general anxiety and depression are present in almost every criminal prosecution. We find nothing in
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.
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.
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
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,
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
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. Clay
Even more on point than Clay is the Second Circuit's holding in United States v. Furey.
Although the time limits imposed by the Speedy Trial Act of 1974
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.
We next turn to the pertinent provisions of the Plan. Section 2(b) provides: "The trial shall commence . . . within 120
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.
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.
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,
Based upon the foregoing, we must therefore conclude that the district court
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.
"The duty which the Sixth Amendment places on Government officials to proceed expeditiously with criminal prosecutions would have little meaning if those officials could determine when that duty was to commence. To be sure, `[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.' Beavers v. Haubert, 198 U.S. 77, 87, [25 S.Ct. 573, 576, 49 L.Ed. 950] (1905). But it is precisely because this right is relative that we should draw the line so as not to condone illegitimate delays whether at the pre- or the post-indictment stage."
Id. at 331-32, 92 S.Ct. at 469. (Douglas, J., concurring in result) (emphasis in original).
For law review articles proposing that the speedy trial right should apply to pre-indictment delays, see, e. g., Steinberg, supra, note 6, at 236-39; Note, Pre-Arrest Delay: Evolving Due-Process Standards, 43 New York University Law Review 722, 725-26 (1968); Note, The Right to Speedy Trial, 20 Stanford Law Review 476, 488-93 (1968); Note, Justice Overdue—Speedy Trial for the Potential Defendant, 5 Stanford Law Review 95, 100-02 (1952); Note, Effective Guaranty of a Speedy Trial for Convicts in Other Jurisdictions, 77 Yale Law Journal 767, 780-83 (1968); Comment, 4 U.C.L.A.-Alaska Law Review, supra, note 6, at 254-59.
"[T]he Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused."
Id. at 324, 92 S.Ct at 465.
In the case at bar, Simmons alleges no due process violation. Deliberate governmental misconduct is not an issue in this case. For holdings in this Circuit where a due process issue was raised in regard to a pre-indictment delay, see e. g., United States v. Manning, 509 F.2d 1230, 1234 (9th Cir.1974); United States v. Erickson, 472 F.2d 505, 507-08 (9th Cir.1973); United States v. Griffin, 464 F.2d 1352, 1354-55 (9th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 447, 34 L.Ed.2d 302 (1972).
"We are deeply disturbed by the government's conduct here. While there is little doubt that the right to a speedy trial `is consistent with delays and depends upon circumstances,' the delays must serve some legitimate purpose. Here the government has no excuse for its conduct. In this case, where the result turned on eyewitness identifications which necessarily became less reliable with the passage of time, we think a delay of nine months is overly long absent a legitimate reason therefor."
426 F.2d at 1277.
Id. at 1299 - 1300.