Full opinion text
FAHY, Senior Circuit Judge: This appeal is from convictions of several related offenses under the narcotics laws. Appellant was arrested March 25, 1969, on a warrant charging first degree murder. The principal evidence in support of the narcotics charges was obtained from a search of an apartment in an attempt to serve the arrest warrant a short time before the arrest was actually made. Appellant was not indicted on the narcotics charges until September 29, 1969, while in custody following the arrest. A superseding indictment was returned February 6, 1970, in which seven additional persons were charged with appellant for violation of those laws. His trial on this indictment was not held until May, 1973, more than 4 years after the arrest. In the meantime .the cases of the co-defendants had been disposed of, in three instances by dismissal of the indictment as to them for lack of a speedy trial. Appellant’s contentions are that the search referred to was unlawful, with the consequence that important evidence used to convict him was inadmissible, and, secondly, that he too was denied his right to a speedy trial. We sustain the latter contention, and accordingly need not discuss the former. I In computing the time lag before trial we think the starting point is the date of the arrest on the warrant charging murder, March 25, 1969, for it was in attempting to execute that warrant that the principal basis for indictment on the present charges was laid. Several circumstances unavoidably contributed to the unusual delay. These include the preparation and trial of the murder case, an appeal from his conviction of second degree murder in that case, reversed by this court, an interlocutory appeal by the United States from an order of the District Court suppressing evidence in the present case, also reversed, and time devoted to determination of appellant’s mental responsibility, which led to a bifurcated trial of that question as it affected the homicide case. Notwithstanding delays incident to the history of the proceedings, we find that as the years passed time was available for trial of this case. Though well utilized no doubt for other purposes the total time became so extended as to lead, in the circumstances to be reviewed, to denial of the constitutional right. Even unavoidable delay is not to be disregarded, though the reasons for it bear upon its weight in balancing the factors to be considered in deciding the issue. Among those factors is the special obligation of the United States to press the ease to trial as the period of unavoidable delay mounts. II We now outline the course of the proceedings. The first phase of the homicide trial was promptly held following the arrest March 25, 1969. A verdict of guilty of second degree murder was rendered October 24, 1969. Before sentence, however, appellant on November 12, 1969, was committed on his motion to St. Elizabeths Hospital for mental examination. The hospital reported on April 8, 1970, that he was competent. On May 25, 1970, however, the court, while finding him competent to stand trial, was not satisfied as to appellant’s mental condition and ordered a bifurcated trial to determine the matter. This second phase of the trial for murder was not held for sixteen months after it was ordered. On the 22nd of September, 1971, it resulted in a finding that appellant was responsible. The murder conviction then became final. Appellant appealed and this court reversed about 27 months later. The case was returned to the District Court in January, 1974, for a new trial. From September 22, 1971, when the bifurcated trial was concluded, to May 24, 1973, when the present charges were tried, 20 months elapsed. During 7 of these months, from all that appears from the record, this case could have been tried. We reach this conclusion as follows: In June, 1970, appellant moved to suppress evidence. *His motion was acted upon April 12, 1971, when it was granted. The United States appealed and this court reversed the suppression order September 13, 1972, and denied rehearing October 12, 1972. As we have seen the appeal in the homicide case was then pending, and so continued well beyond the date of trial of the present case in May, 1973, seven months after termination of the litigation over the suppression order and 20 months after termination of the bifurcated trial. The case had already been pending more than 3 years when in October, 1972, the reversal of the suppression order became final, even if the time lag is considered to have begun as late as the return of the indictment in September, 1969. The failure to bring the case to trial during the 7 months from October 12, 1972, to May, 1973, after so long a previous delay, is by no means the only reason for our concern. This apparently open period would have been substantially enlarged except for previous significant delays. Thus, appellant’s motion to suppress evidence, argued first in June, 1970, was not acted upon until April 12, 1971, ten months later, when it was granted, leading then to the interlocutory appeal. That appeal no doubt would have been terminated prior to October 12, 1972, had the motion to suppress been more promptly decided, which would have significantly enlarged the open period of seven months to which we have referred. Moreover, as we have shown, the total time consumed in reaching a final disposition of the motion to suppress was 2 years and 4 months, ranging from June, 1970 to October 12, 1972, The narcotics case had then been pending 3 years and 1 month from the date of the indictment in September, 1969, and 3 years and 7 months from the date of the search and arrest March 25, 1969. The period thus consumed is excessive considered alone, aside from its contraction of the period of free time which otherwise would have been available to try this case during the pendency of the appeal in the homicide case. Promptly after appellant lost the favorable decision of the District Court suppressing evidence, he moved on October 31, 1972, for dismissal of the indictment for want of a speedy trial, urging prejudice in having to proceed, for “having been in jail [he] has lost contact of some or all of his potential witnesses; some . . . are no longer in this jurisdiction or have passed away during the delay of the last four years.” The motion appears not to have been heard until May 9, 1973. On that date counsel again argued, inter alia, that after “four years” there was “absolutely no way, Your Honor, that I can possibly have any kind of a defense, any witnesses as far as protecting the rights of my client.” He named two witnesses who had once been but now were no longer available to testify, a man nicknamed “Little George” who had since died, and Nadine Frazier, the woman whose apartment was searched on the date of appellant’s arrest in March, 1969. Counsel also pointed out that the court had already dismissed for want of a speedy trial the indictment against three co-defendants included in the superseding indictment of February 6, 1970, upon which appellant was to be tried. The court, in denying appellant’s motion, pointed to the difference in appellant’s case from the others, due to the fact that the murder case was also to be disposed of. The judge stated that the Court of Appeals would not have permitted him to have allowed the prosecutor to harass counsel for defendant by forcing this case to trial, presumably while the murder case was pending. But, as we have seen, the bifurcated trial of the murder case had been concluded September 21, 1971, and this motion to dismiss was being argued May 9, 1973, nineteen months later. Ill As we analyze the rather complicated proceedings, the period of approximately four years is attributable primarily to the operation of the system. Although differences of opinion may be justified as to whether any substantial part of the delay should be placed at the door of appellant, we think very little can be placed there. The time devoted to observation and examination of appellant’s mental condition, not a great deal compared with the total, was due to the operation of the system rather than to any “fault” of appellant. So too the period consumed by the interlocutory appeal. Indeed, we find no evidence of intentional delays on the part of either the prosecution or the appellant. Yet we think that upon consideration in more detail of the relevant factors the United States failed to meet its obligation to encompass all the proceedings within a pretrial span of substantially shorter duration than four years. IV The four principal factors to be balanced, as enumerated in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), are (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. We note preliminarily, however, that these four factors are to be considered in light of certain general principles: A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest. [Tjhe rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. (Footnotes omitted.) Id. at 527 and 529, 92 S.Ct. at 2190. The right to a speedy trial is “one of the most basic rights preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). [T]he longer the time between arrest and trial, the heavier the burden of the Government in arguing that the right to a speedy trial has not been abridged. * * * * * * The passing of . . .a considerable length of time, no matter who is “at fault,” should act as a spur to the Government to seek prompt trial. Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687-88 (1966). Though the circumstances in Hedgepeth were held not to violate the right to a speedy trial, the court there repeated that a claim of its denial has prima facie merit when more than a year elapses between arrest and trial. See to that effect, United States v. West, 164 U.S.App.D.C. 184, 186, 504 F.2d 253, 255 (1974); United States v. Calloway, 164 U.S.App.D.C. 204, 505 F.2d 311 (1974), and cases there cited. . in Barker v. Wingo, supra, the Supreme Court said that in weighing delay in trial, overcrowded Courts should be weighed less heavily (than Government’s deliberate attempt to delay) “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” United States v. Perry, 353 F.Supp. 1235, 1238 (D.D.C.1973). While the Court in Barker v. Wingo, supra 407 U.S. at 523, 92 S.Ct. at 2188, stated that it found “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months”, it noted in passing the following developments in that regard: The United States Court of Appeals for the Second Circuit has promulgated rules for the district courts in that Circuit establishing that the government must be ready for trial within six months of the date of arrest, except in unusual circumstances, or the charge will be dismissed. This type of rule is also recommended by the American Bar Association. Id. In United States v. Marion, 404 U.S. 307, 312 n. 4, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971), the Court also had noted that Federal Rule of Criminal Procedure 48(b) authorizes dismissal of an indictment, information, or complaint “[i]f there is unnecessary delay . in bringing a defendant to trial . . Turning now to the balancing process to be engaged in, the first factor stressed in Barker v. Wingo, supra, the length of the delay, weighs in favor of appellant’s claim, for the over-all delay was inordinate. Passing over momentarily the second factor, the reason for the delay, we consider the third, the assertion of the right. This too weighs in appellant’s favor. Nothing indicates any desire on his part to delay the trial. He first moved May 18, 1971, that the indictment be dismissed for lack of a speedy trial, complaining of the delay of the United States in appealing from the suppression order. Appellant again moved to dismiss for lack of a speedy trial October 31, 1972, and brought the matter up again May 9, 1973, citing, inter alia, United States v. Perry, supra. The second factor concerns the reason for the delay. Our outline of the proceedings has indicated the principal reasons for the delay of approximately four years, other than those which do not appear in the record of this case. We have pointed to the seven-months open period from October, 1972 to May, 1973, and to the fact that it would have been substantially enlarged except for the periods which elapsed before the motion to suppress was acted upon and finally disposed of, a total period of 2 years and 4 months. We have difficulty in finding that any significant part of the inordinately long lapse of time between arrest- — or indictment — and trial, can be charged to appellant. We come then to the fourth factor, that of prejudice to the defendant. His prejudice of a personal character is clear. This kind of prejudice, though not the same as that caused by the death of a witness or other loss of evidence, which may include loss of the memories of witnesses, is firmly established as important. In United States v. Marion, supra 404 U.S. at 320, 92 S.Ct. at 463, the Court stated: the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. Moreover, it occurs independently of incarceration, though it is aggravated thereby. In that regard the Court in Marion stated: Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. Id. In Barker v. Wingo, supra, Mr. Justice Powell stated for the Court: . even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. 407 U.S. at 533, 92 S.Ct. at 2193. In the earlier case of United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966), one of the elements of the constitutional guarantee is stated to be “to minimize anxiety and concern accompanying public accusation.” See, Klopfer v. North Carolina, supra, and also, Smith v. Hooey, supra, where the Court stated: . this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: “[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627. (Footnote omitted.) 393 U.S. at 377-78, 89 S.Ct. at 577. This court has adverted to the matter as follows: . these provisions [those of the Constitution and Rule 48(b) F.R. Crim.P.] seek to minimize the anxiety and attendant evils which are invariably visited upon one under public accusation but not tried. (Footnote omitted.) Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363, 367 (1965). Though we cannot measure in an accurate manner the degree of personal prejudice to appellant, we cannot ignore it; and it was aggravated by appellant’s incarceration, though that was due to the murder case as well. This aggravation is clear from Smith v. Hooey, supra. There Smith, while a prisoner in a federal penitentiary, was indicted by the State of Texas for a state offense. For six years he vainly sought a trial by Texas. The Texas court deemed itself to be without power to act to bring him to trial on the state charge because he was held by a different sovereign, stating, “ ‘[t]he true test should be the power and authority of the state unaided by any waiver, permission or act of grace’ ” of any other authority. 393 U.S. at 377, 89 S.Ct. at 576. The Supreme Court held, however, that the petition of Smith to require the State by mandamus to make a diligent, good faith effort to bring him to trial on the state charge should be granted. The Court stated: At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from “undue and oppressive incarceration prior to trial.” But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pend-ency of another criminal charge outstanding against him. And while it might be argued that a person already in prison would be less likely than others to be affected by “anxiety and concern accompanying public accusation,” there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, 386 U.S. at 221-222, 87 S.Ct. [988] at 992-999. In the opinion of the former Director of the Federal Bureau of Prisons, “[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.” And, while “evidence and witnesses disappear, memories fade, and events lose their perspective,” a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time. (Footnotes omitted.) Id. 398 U.S. at 378-80, 89 S.Ct. at 577. We do not ignore but neither do we emphasize appellant’s claim of prejudice due to his inability to defend against the narcotics charges as urged by his counsel in the trial court. He did not testify and called no witnesses in the two-day trial. Perhaps a court would be justified in assuming some prejudice to an accused’s defense due to such a delay, accompanied by incarceration, but we do not make such an assumption in this case. The factor of prejudice, however, does weigh in favor of appellant’s claim of denial of a speedy trial, because of the personal prejudice of which the Supreme Court has spoken in the cases to which we have referred. Y As we have seen, the period during which the case was pending before trial was substantially entangled with the homicide case involving appellant. Unavoidable difficulties confronted the trial court in bringing the narcotics case to trial. Moreover, even during what we refer to as an open period, when it appears the case could have been tried, and which we think could have been expanded as has been explained, we know the trial court was well occupied in other respects. There was a heavy case load of which this case was but a part. We would not be justified in implying criticism of the trial court or the prosecution; we cannot reconstruct the overall situation, or isolate any delays as due to neglect or design on the part of those responsible for bringing the case to trial. Yet the burden of responsibility was not met in the particular case, with the consequence that, in balancing the relevant factors to be considered, we conclude the constitutional right requires enforcement by dismissal of the indictment. It is so ordered. . 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. . The February 6 indictment charged appellant and seven others with violations of 26 U.S.C. §§ 4704(a), 4705(a), 7237(b) and 21 U.S.C. § 174. . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . ..” U.S.Const. Amend. VI. . As to the validity of the search, however, see, United States v. Brown, 151 U.S.App.D.C. 365, 467 F.2d 419 (1972). . Our decision would be the same were the starting point to be taken as the date of the indictment of September 29, 1969. . This report obviously was limited to competency to be sentenced or for trial. It did not solve the problem of his mental responsibility for crime. . United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1973). . After the reversal appellant was permitted to plead guilty to manslaughter and on June 6, 1974, was sentenced to two to ten years, with credit for time served from March 25, 1969. . The government states in its brief that on March 25, 1971, appellant’s motion to suppress was heard and that “[sjlightly less than three weeks later the trial court granted his motion.” (p. 8). The docket entries, however, show that a motion to suppress the evidence seized from the apartment was argued before the District Court June 17-19, 1970. The government submitted a brief on July 2, 1970 (Docket Entry 34) stating that it was in opposition to the motion to suppress evidence “SEIZED AT 1239 VERMONT AVE., N. W„ APT. NO. 907”, which is the place where the attempt to serve the arrest warrant occurred. Apparently the motion was argued again March 25, 1971, about 3 weeks prior to its grant by the court. . The District Court’s order granting the suppression came down May 12, 1971. . A certified copy of the judgment of this court did not reach the District Court until November 9, 1972. . Nadine Frazier appeared as a government witness at the trial. . We note, however, that since that appeal this court has made a salutary rule looking toward expedition of interlocutory appeals, including a provision that “The Clerk shall schedule the case for argument promptly after the briefs are filed.” Amendment to Rule 7, General Rules of the United States Court of Appeals for the District of Columbia Circuit ((c)(l)(iv)>. Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (1971). [Omitted.] . In Barker v. Wingo, supra, the Court excused a delay of over five years in a brutal murder case because of the absence of significant prejudice, and, importantly, because the accused did not want an earlier trial for tactical defense reasons. . We deem it of some importance in reaching our decision that the District Court, in line with a general trend in the judiciary to make the right to a speedy trial more effective, notwithstanding its elusiveness, has promulgated for its own guidance a rule which includes the following: All indictments returned shall be tried within 180 days from return of indictment if the defendant is on bond. . . . The United States or the defendant may, for good cause shown, petition the judge to whom the case is assigned to extend the time period applicable to the particular case. In exceptional cases the court may, sua sponte, order an extension. Rule 2 — 7(d)(1). . The following comments are addressed to Judge MacKinnon’s Statement: The Statement says, and repeats, that Brown’s counsel did not claim prejudice. However, he sought dismissal of the indictment at the hands of the District Court for lack of a speedy trial, and urged in this court reversal because of the denial of a speedy trial. Thus it became necessary for this court to consider the question of prejudice as appellant’s brief explicitly stated. The Statement then designates by numbers a summary of criticisms of the court’s opinion. In commenting upon these criticisms I do so in the same numbered order as the summary. 1. The reference to the failure of the opinion to discover or consider the pendency of a third major indictment fails to indicate anything of significance to the issue of a speedy trial in this case. And see footnote 2 of Judge McGowan’s concurring opinion. 2. The objection to the opinion’s “open period” aspect of the case will be considered infra with other criticisms of that part of the court’s opinion. 3. Contrary to the conclusion the Statement draws, there is nothing in the record respecting a request by Brown’s counsel that the trial judge defer trial of this case because of counsel’s responsibility to argue the appeal in the murder case. The trial judge’s statement to Brown’s counsel, quoted in the Statement as though it indicated such a request, is silent as to the argument of the appeal. Nowhere in the record of the hearing on May 9, 1973, referred to in the Statement, is there mention of delaying or deferring this case on account of counsel’s need to prepare for the appeal in the murder case. See, infra, the discussion of the argument of the appeal in that case as it bears upon the “open period” during which it occurred. 4. Comments upon this objection are also deferred to consideration of the “open period” phase of the opinion, infra. 5. The Statement is mistaken in suggesting that the opinion fails to recognize the periods involved in the “trial” to determine appellant’s sanity as that phase of the proceeding might bear upon the issue of a speedy trial. The opinion correctly states the facts in that regard and reaches its conclusion with due regard to those facts. And see footnote 2 of Judge McGowan’s concurring opinion. 6. Assuming, as the Statement says, that appellant was given the choice of having this case tried immediately with his murder case, but elected to have this case delayed, the facts are that the murder case was fairly promptly tried, in October 1969, while this case was not tried until May 23, 1973, 4 years and 2 months after the arrest and 3 years and 8 months after the indictment. Several times after the murder case had been tried appellant’s counsel moved to dismiss this case because of the delay. 7. As stated above, the issue of prejudice was ex necessitate rei considered by the court in response to the issue of a speedy trial raised by Brown’s counsel. See, also, Judge McGowan’s discussion of certain specific claims of prejudice by Brown’s counsel. We turn now to the several related portions of the Statement respecting the “open period”, including paragraphs numbered 2 and 4 of the summary, noted above as deferred for comment. The Statement strongly challenges the court’s position that from what appears on the record this case could have been tried during that period. The Statement contends it could not have been tried then because the appellate argument in the murder case was set for the middle of the period. The facts are as follows: Brown’s counsel had filed his brief on the appeal August 2, 1972. The “open period" began October 12, 1972 (or a month later if it should be thought to have begun when the mandate issued on the appeal from the suppression order). Appellant’s brief accordingly was filed two or three months before the open period began. The appeal was argued February 22, 1973, after the open period had been running more than three or four months, depending upon when one considers it to have begun. When this case was tried May 23-24, 1973, the defense placed no witnesses on the stand, and the trial consumed one and a half days of trial time, some 5-6 hours altogether. Obviously this case could have been tried during the open period without unfairness to Brown’s counsel notwithstanding he needed to prepare for a half hour or so argument of the appeal between August 2, 1972 and February 22, 1973. Notwithstanding other objections of the Statement to the open period phase of the court’s opinion, which are not in all respects without substance, we remain unconvinced, especially in light of the excessive delays which had already occurred when this period began, after the controversy over the validity of the suppression order had ended. Any,doubts created by the challenge of the Statement to the court’s treatment of the open period are removed by the court’s treatment of the case as a whole on the issue of a speedy trial. The, Statement is mistaken when it insists that the court’s position is that the narcotics case “must be reversed and the indictment dismissed because appellant was not brought to trial during the open period of ‘seven months’ (Initial Opinion, p. 6) beginning on October 12, 1972 and running through to May 23, 1973.” The Statement mistakenly states the position of this court. So, too, does the Statement as it continues: “This is the critical period since the opinion pointed to no other specific period of allegedly unnecessary delay. * * * It is thus the ruling with respect to this seven-month period, which the court in effect states controls its disposition of this case, that must be examined to see if the Government was delinquent in not bringing Brown to trial earlier in this period. ” (Emphasis in Statement.) The answer to this position of the Statement — that the open period of seven (six) months was the all-in-all basis for the decision that a speedy trial had been denied — is contained in the text of the opinion. Immediately following its consideration of the open period, the opinion states: The failure to bring the case to trial during the 7 months from October 12, 1972, to May, 1973, after so long a previous delay, is by no means the only reason for our concern. We then proceed to consider previous significant delays but for which the apparently open period “would have been substantially enlarged.” The importance of the ensuing analysis of the progress of the case is fully developed by Judge McGowan’s concurring opinion, which demonstrates the soundness of the conclusion that appellant was denied a speedy trial. Not among the numbered objections stated in summary form, but in the body of the Statement, it is said that the court’s opinion improperly seeks to extend the period for which the Government must account on the speedy trial claim to include time "after the date the case was tried,” and “This approach is beyond belief.” The Statement is again mistaken. The opinion contains a narrative reference to the total time the appeal pended in the murder case, but no time calculation in the court’s disposition of the speedy trial issue includes any time subsequent to the trial of this case on May 23, 24, 1973. Society’s interest in a speedy trial, given constitutional status by the Sixth Amendment, has recently led to the Speedy Trial Act of 1974 (Public Law No. 93-619), effective July 1, 1975, which is mentioned in the Statement. The Act is designed “to assure a speedy trial.” 18 U.S.C. § 3161 et seq. This Act contains time periods of limited duration within which proceedings in criminal cases are to take place. Such a period is prescribed, for example, within which trial is to occur subsequent to arraignment. To enable the District Court to comply with the limited periods prescribed, delay necessarily encountered by, for example, an interlocutory appeal, is excluded. The trial of the case before us, however, was concluded in the District Court long before the inauguration of this legislative effort to help solve the speedy trial problem. Our decision accordingly rests upon the Constitution, and since the Constitution contains no time tables such as appear in the Speedy Trial Act of 1974, it does not require the court to disregard any specific delay except as it should rationally be appraised as not fairly to be weighed in support of the claim of denial of this “fundamental” yet “more vague concept than other procedural rights.” Barker v. Wingo, supra, 407 U.S. at 515, 521, 92 S.Ct. at 2187. 1. Suppression was sought on the ground that the police had illegally entered the apartment in which they found the evidence of narcotics violations. The defendants’ initial supporting memorandum, filed August 27, 1970, advanced only the argument that the entry had been illegal because the police lacked probable cause to believe that the object of their search (Brown himself) was in the apartment. This tack was evidently taken because the Government had to date proffered no evidence of such probable cause, relying instead on the existence of an arrest warrant for Brown, and on a mere allegation that the police had information as to his whereabouts. The defendants filed their first supplemental memorandum on March 25, 1971, the date of the second suppression hearing. Their stated reason for doing so was that the Government was to be permitted in that hearing to adduce evidence of the existence of probable cause. This necessitated a shift by defendants, made in their supplemental memorandum, to the theory that even if probable cause existed, the entry was nonetheless illegal because a search warrant had not been obtained. We are thus left with the question of why, assuming a second suppression hearing was necessary at all, it was so long in coming. If the record does not fully disclose the cause of delay, it at least makes clear that it was not the tardy filing of briefs. 2. Judge MacKinnon has emphasized, as mitigating the delay, the pendency during this period of two other prosecutions, one for murder and one for a separate narcotics offense. He argues in particular that on September 14, 1971, Brown was given a bifurcated trial which determined his mental responsibility for all three crimes. He asserts that this trial was the first phase of Brown’s trial for the instant offense, and hence that we need only consider the delay that occurred up until that time. I cannot agree. A joint bifurcated trial was apparently planned (the District Judge so ordered on June 19, 1970), but in fact never took place. For reasons not apparent from the record, the bifurcated trial in September of 1971 concerned Brown’s responsibility for murder only. Judge MacKinnon considers that the verdict at this trial was “also determinative of competency with respect to the narcotics offense,” Statement at 22, and by this I take it he means mental responsibility for the narcotics offense, rather than competency to be tried for it, the latter having been found many months earlier in May of 1970. Manifestly, however, a defendant’s mental responsibility for one offense and his mental responsibility for another are two separate issues which, if they are raised, must be separately tried. In fact, appellant never did raise this defense to the narcotics charge, quite possibly because it simply did not seem likely to succeed. If what Judge MacKinnon is suggesting is that he was precluded from raising it by a promise to abide by the verdict in the bifurcated murder trial, the answer is that, even assuming that such a promise would be enforceable, it is hardly to be inferred from the appellant’s mere failure to object to the ambiguous suggestion of a “consolidated” mental responsibility trial. If the bifurcated murder trial was not itself the beginning of the appellant’s narcotics trial, then neither did it excuse the delay that took place before that trial actually was begun. The bifurcated murder trial took place a year and four months after Brown’s competency was determined. The appeal in that case was argued a year and five months later still. Time could have been found for the narcotics trial. Such, plainly, was appellant’s wish, since he first asserted his right to a speedy narcotics trial long before the bifurcated trial took place. We must assume, then, that the narcotics trial would have proceeded but for the suppression motions. And it was not the bifurcated murder trial which caused the delay in disposing of those motions; the trial judge eventually granted them months before the bifurcated trial was scheduled to take place., The pendency of a second narcotics prosecution is even less of an excuse. Brown’s competency to stand trial for that offense was likewise found on May 25, 1970. His mental responsibility for it was likewise committed to, and then omitted from, the bifurcated murder trial. Nothing further transpired in that case except for Brown’s motion for speedy trial dismissal on October 31, 1972, and the Government’s motion to dismiss (this one granted) on February 16, 1973.
McGOWAN, Circuit Judge (concurring): I concur in the judgment and in Judge Fahy’s opinion, but wish to add a word of emphasis on an aspect of the ease that I find particularly compelling. That is the fact that, given the Supreme Court’s holding in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), that the speedy trial guarantee is not suspended by contemporaneous incarceration on another charge, it took an unconscionable amount of time — without any particular fault other than the system as it then worked — to dispose finally of appellant’s pretrial motion to suppress. In short, I consider this case similar to United States v. Perry, in which we upheld the dismissal of an indictment because of a similarly long delay in the disposition of a suppression motion. 353 F.Supp. 1235 (D.D.C.1973), affirmed by order of this court entered on December 12, 1973. The salient facts on this score are that on June 17, 1970, promptly after appellant had been found competent to stand trial, he moved to suppress the narcotics evidence on which his conviction ultimately rested. That motion was argued and taken under advisement two days later, but it was not finally disposed of by the trial court until April 12, 1971— 10 months after filing. The motion was granted, and the Government appealed. It was not until November 9, 1972 that a mandate issued from this court reversing the trial court’s suppression of the evidence. Thus the time required for final disposition of the suppression motion ran from June 17, 1970 until November 9, 1972 — 2 years and 5 months. It is this period of delay, rather than the seven months immediately before trial, that I find unacceptable. That such a delay in the courts may lead to dismissal for lack of speedy trial the Supreme Court made clear in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. [citation omitted] A more neutral reason such as . overcrowded courts should be weighted less heavily but nevertheless should be considered, since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Id. at 531, 92 S.Ct. at 2192. (emphasis supplied). Our case may indeed be a fortiori after Perry, in which we found excessive a similar delay of only a little more than two years. See 353 F.Supp. at 1236-37. In his statement of reasons for seeking an en banc rehearing of this case, Judge MacKinnon makes several relevant objections. He would excuse the major part of the delay in the trial court on the ground that the suppression movants did not file their last brief there until March 30, 1971. Briefs opposing and supporting the suppression motion were initially filed in July and August of 1970. The later brief to which Judge MacKinnon refers was the last in a round of “supplemental memoranda” filed by both the defendants and the Government, and occasioned by the District Court’s having scheduled a second suppression hearing for March 25, 1971. In the intervening months, it appears that the parties had been awaiting action by the court, and not vice versa. Nor is appellant responsible for the delay in the appellate consideration of the suppression matter. To the contrary, the certified record in this case was filed on June 19, 1971, the Government’s brief in support of its appeal was filed on September 24, but counsel was not appointed for appellant by this court until November 15, in an order extending time to file brief to December 25. Thereafter, appellant, not the Government, made a motion on March 2 to accelerate oral argument, which was denied. As to the existence of prejudice, it is true, as Judge MacKinnon says, that the trial judge’s eventual action in making Brown’s narcotics sentence run from the date when he was first arrested for murder eliminated the possibility of his having to serve additional time in prison because of the delay. Thus, we do not have the problem, identified in Smith v. Hooey, that delay in trying an already-incarcerated prisoner may deny him the benefit of concurrent sentences, although it perhaps remains true that appellant’s anxieties on this score could have been very real and prolonged, since he had no way of knowing that the trial judge was eventually going to extend the favor he did. The second possible source of prejudice mentioned in Smith v. Hooey is the general anxiety that a prisoner incarcerated on one charge may suffer from having an undisposed indictment for another pending at the same time. Judge MacKinnon discounts this, apparently because he considers that appellant was a fairly hardened criminal. The Supreme Court at least did not distinguish between defendants on the basis of a subjective appraisal of their possible emotional states, and we cannot either. The third kind of prejudice pointed to by the Supreme Court in Smith v. Hooey was the impairment of the accused’s defense. This question came up when appellant’s speedy trial motion of October 31, 1972 was finally heard on May 9, 1973 — two weeks before the trial started. The entire colloquy on the speedy trial issue at that hearing is as follows: MR. CHOROSZET (Brown’s counsel): ... I represent to this Court, Your Honor, that on the 23rd I cannot conceive of having any potential witnesses that have appeared. THE COURT: What witnesses did you have on May 12, 1971? MR. CHOROSZET: Well, there was, as I recall, a man by the name of, I think his nickname was Little George. He died. He appeared before you a number of times. THE COURT: I can’t control his death. You wouldn’t have him here anyhow. Now, who else? You had a list of witnesses, you say? MR. CHOROSZET: I had Nadine Frazier. I have no idea where this lady is today. THE COURT: Go ahead. MR. CHOROSZET: I don’t know whether Mr. Westbrook will appear in the course of this case or not. THE COURT: That is for you to determine, counsel. Mr. Westbrook has entered a plea in this case and his address is a matter of record in the probation office of this Court. He is in Atlanta, Georgia, as you well know. So there is no question about where Mr. Albert Westbrook is. There is no question you were sitting right there in the room, because we have got a statement where he was. We have got his picture there. MR. CHOROSZET: In any event, Your Honor, as far as I know, on the 23rd, if the Court will proceed with the trial of this case, we take the position that the defendant has been in jail for a period of the last four years. THE COURT: Now, counsel, he is not in jail on this case. He is in jail because he was convicted of second degree murder. MR. CHOROSZET: That is correct, Your Honor. But he has been in jail at the time of the arrest and charge in this case, murder case, and the Austin case. THE COURT: Well, unfortunately, we have defendants who don’t choose to stop at one felony. • They go on and on. If I were to dismiss — I could clean up my calendar in 15 minutes by dismissing cases where there are multiple indictments against defendants. If they would stop at one bank robbery, fine. But they don’t, counsel. MR. CHOROSZET: Well, Your Honor, the Government does impliedly concede— THE COURT: There is no point in us getting involved in an extensive discussion. I intend to deny all defense motions for dismissal of this indictment for lack of speedy trial in this case. Judge' MacKinnon in his statement notes that Nadine Frazier, in the event, testified at the trial as a witness for the Government; and that no effort was made to bring Mr. Westbrook from Atlanta to testify. There is still a gap, however, with respect to the witness who was said to have died, Little George, a matter which the trial court disposed of with the comment, “I can’t control his death. You wouldn’t have him here anyhow.” This abrupt treatment, joined with the seeming disregard' of the teaching of Smith v. Hooey that persons lawfully imprisoned for one offense retain speedy trial rights with respect to others, at least leaves a lingering question as to how carefully appellant’s suggestion of prejudice was examined. We need only find a “reasonable possibility” of this kind of prejudice, United States v. Rucker, 150 U.S.App.D.C. 314, 316,464 F.2d 823,825 (1972), and I am inclined to do so in this case. Appellant in his brief names two other witnesses, Theodore Moore and George Stewart, who would be potentially useful to him but are now unavailable. Appellant’s case for impairment is admittedly not a strong one, but that case may itself have been impaired by the passage of time. We should not forget that more than four years had passed since the events as to which counsel claimed he could not assemble a proper defense. As to the appellant’s assertion of his right to a speedy trial, I note that he formally moved for dismissal on that ground at least four times. The first of these was on May 18, 1971, shortly after the trial judge had ordered suppression of vital Government evidence. Since he had, for the moment at least, prevailed, it was perhaps not his obligation to make such a motion at all, and the court appears to have taken no notice of it. In any case, Brown’s next motion came on October 31, 1972, promptly after this court had reversed the suppression order and denied rehearing en banc. Speedy trial issues are among the most unsatisfactory of those which appellate courts are called upon to determine. In a record as tangled as this one, the speedy trial question is, to use the Supreme Court’s characterization in Barker v. Wingo, more “slippery” than usual. The balancing mandated by Barker may be more than normally difficult on this record, but where the overall period of delay is more than four years, two years and five months of which are devoted to a suppression question, I must resolve my doubts in favor of the defendant. Statement of Reasons in Support of Sua Sponte Motion to Consider the Case En Banc MacKINNON, Circuit Judge: The motivation for this Statement comes from the exercise of what in my opinion is a gross abuse of appellate judicial power. The Statement deals with Judge Fahy’s opinion (the “initial opinion”) to which it was first addressed, and then with the “concurring opinion” which was added after this Statement had dealt with the 7-month period upon which the initial opinion primarily based its decision. Thereafter, footnote 16 was added to the initial opinion to deal with some of the comments this Statement had added following the issuance of the concurring opinion. The footnote, which has a surface acceptability on a casual reading, will not stand sound analysis. Actually, what the panel opinions do here is to require the impossible. It is not humanly possible where a defendant is guilty of as many separate major crimes as Brown, involving as many defendants as he was involved with, for any trial court to (1) let a defendant select one counsel to represent him in all cases, including appeals, (2) grant all the severances, continuances, hearings and separate trials this court requires and the defendants request, (3) permit defense counsel to select the order of trial and allow all the time he demands to prepare for and handle the trials and interlocutory appeals, and still comply with our due process requirements within the compressed time frame that the foregoing opinions are here requiring under the guise of right to a speedy trial. In other words, there comes a time when the demands of due process and the requirement of a speedy trial may conflict. This is such a case, and the lawyer whom Brown insisted defend him in all these cases is to be commended for his highly ethical conduct in not claiming any prejudice here. In my view en banc consideration of this case is called for because of the importance of the issues raised and because both prior opinions overlook controlling facts and misapply the principles laid down in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). Consideration by the full court is thus necessary to maintain the uniformity of our decisions. Fed.R.App.P. 35(a). To summarize some of my principal objections to the opinion: 1. It fails to discover or consider the pendency of a third major indictment (Narcotics I) that was pending throughout the pretrial period. 2. The seven-month “open period” that the opinion finds should have been used to try this case was not “open” at all because the argument on the appeal of the murder conviction was set for the middle of the period. 3. Appellant’s counsel, who represented him on all three indictments, in the trial court and on appeal (two cases), had requested the court to defer the trial of this case until he could argue the appeal of the murder conviction. The opinion fails to consider this. 4. It fails to consider that Brown and his counsel on February 27, 1973, filed several motions in the middle of the “open period” that had to be decided before trial. 5. It fails to recognize that appellant was first brought to “trial” on this case to determine the issue of his sanity and that a portion of appellant’s trial thus began over 20 months before the date the opinion ascribes to the beginning of the trial. 6. It fails to recognize that immediately after he was indicted, Brown was given the choice of having his case tried immediately with his murder case, as the Government had a right to do, but he elected with his eyes open to have this case delayed. That is undoubtedly the reason he never claimed any prejudice. 7. Even its weak finding of prejudice is unsupported by the record and raises a claim of prejudice which appellant did not raise on appeal. 8. The opinion contains other oversights and improper applications of law, fact and logic. My reasons for voting to en banc the case are further set forth below. I. Factual Background In 1968, Roland W. Brown, also known as “Rabbit,” was a large-scale narcotics distributor in the District of Columbia. His criminal practice was to consign narcotic drugs to several pushers and later collect the money from them after the drugs were sold. One Ricardo Parks was such a pusher for Brown. Because Parks owed Brown for narcotics that Brown had furnished, him for resale, he sought to avoid Brown. However, on October 4, 1968, Parks was decoyed to a vacant house where Brown and his confederates confronted him and Brown shot and killed Parks in cold blood. The killing was unsolved for some time, but the facts eventually became known and a magistrate issued a first degree murder warrant for Brown’s arrest on March 17, 1969. On March 25, 1969, Brown was in the apartment of one Nadine Frazier when three policemen attempted to arrest him on the murder warrant. They knocked on the door and announced their purpose, but Nadine Frazier delayed opening the door. When the police entered, Brown fled out a window with one of the policemen in pursuit. Shortly thereafter Brown was captured and arrested on the murder warrant. The two policemen who remained in the Frazier apartment observed some narcotics paraphernalia on the table and discovered two tinfoil packets in a stocking wrapped around Miss Frazier’s waist. One packet contained heroin, the other cocaine. These narcotics had street value of $10,200. Other narcotics seized in the apartment brought the total street value to $14,380. Miss Frazier stated that Brown and one Westbrook brought the narcotics to her apartment and that Brown habitually brought narcotics there. The original murder indictment was superseded on September 9, 1969, by an indictment charging Brown and two others with first degree murder in the killing of Parks. The indictment also charged Brown with carrying a dangerous weapon. These counts are hereafter referred to as the Murder Indictment. On September 22, 1969, Brown was also indicted, along with two co-defendants, on four counts charging two narcotics offenses (26 U.S.C. §§ 7237(b), 4705(a), 21 U.S.C. § 174), carrying a dangerous weapon (D.C.Code § 22-3204), and possession of a prohibited weapon (D.C.Code § 22-3214). This indictment is hereafter referred to as Narcotics I. This is the indictment that the initial opinion completely overlooks. On September 29, 1969, another indictment charging various additional narcotics offenses was returned against Brown and eight other defendants. That indictment was superseded on February 6, 1970, by an indictment charging Brown and seven co-defendants with conspiracy to sell narcotic drugs and other related narcotics offenses. It included the narcotics offenses discovered when the police entered Nadine Frazier’s apartment on March 25, 1969, in their attempt to arrest Brown on the murder warrant. This indictment, originally consisting of six counts, is hereafter referred to as Narcotics II, and led to the conviction which is the subject of the present appeal. At his own request Brown was represented in all three cases, both at trial and on appeal, by an appointed attorney named Walter Choroszej, and all cases were assigned to the same trial judge. When one considers the magnitude of these simultaneously pending offenses, one murder indictment, and two major narcotics offenses, it is apparent that Brown’s counsel had his hands full. To date, these three cases, and the indictments they superseded, account for more than 30 solid pages of docket entries in the District Court. The initial opinion by the court reviews some of the facts related to the trial and disposition of these cases to date, but it completely overlooks everything connected with the handling and disposition of the indictment in Narcotics I. The Government and the parties were involved in the pendency of three separate major indictments, not just two. The complete failure of the initial opinion to discover and give consideration to the substantial demands that Narcotics I made upon the court, the Government and defense counsel, is an error that alone is sufficient to set aside the court’s initial opinion. The reply of footnote 16 of the initial opinion to this criticism is that it “fails to indicate anything of significance to the issue of a speedy trial in this case.” This is demonstrative of the obtuse approach taken by the initial opinion to the time demands that present-day due process decisions by this court have placed upon trial courts in this jurisdiction in the trial of criminal cases. The failure of the initial opinion to discover the pendency of this third narcotics indictment indicates either a negligent failure to review the available record or a complete insensitivity to the fact that three separate major criminal indictments cannot be properly processed simultaneously through the trial courts in the same time as two. The application by the initial opinion of a two-ease time frame, when three cases with all their attendant motions and appeals were simultaneously pending, obviously applies a false and improper standard as a basis for reversing the conviction. The foregoing conclusory observations would appear to be self-evident from the earlier factual recitation and are merely set forth in answer to the allegation that such facts are not significant on the speedy trial issue. They are certainly significant to the analysis of the speedy trial issue by the initial opinion. Nothing more than the failure to consider the time demands of Narcotics I should be necessary to grant rehearing en banc. However, there are many additional reasons for doing so. II. The So-called “Open Period” of Seven Months The initial opinion recited the progress only of the murder charge and Narcotics II, from the date of the offense to the present time. It comments on some of the necessary proceedings that are recorded in the docket entries and on some of the time factors that are involved. It then concludes that appellant’s conviction on Narcotics II (this case) must be reversed and the indictment dismissed because appellant was not brought to trial during the “open period of seven months” (Initial Opinion, p. 1109) beginning on October 12, 1972, and running through to May 23, 1973. (I later show that this “open” period was actually only six months long.) In mislabelling this the “open” period the initial opinion assumes a fact vital to its decision. This is the critical period since the opinion pointed to no other specific period of allegedly unnecessary delay. Footnote 16 attempts to deny this analysis of the initial opinion, but in doing so it furnishes additional proof that the seven-(six-) months was the “all-in-all basis for the decision that a speedy trial had been denied.” That is, if we assume it is improper to reverse a criminal conviction an appeal on illusory, illogical and gossamer grounds. To illustrate, footnote 16 seeks to answer the attack by this Statement on the seven- (six-) month period cited by the initial opinion by stating that such period “is by no means the only reason for our concern.” (Emphasis added.) This is the something else the initial opinion relies upon — other than the seven- (six-) month period. It thus relies upon its generalized, unspecified concern to support a reversal of a criminal conviction. It is submitted that mere “concern” is insufficient grounds for reversal according to all prior appellate law in the federal courts. But more is asserted, equally unsound, i. e., “previous significant delays but for which the apparently open period ‘would have been substantially enlarged.’ ” (Emphasis added.) To restate this ground asserted by the initial opinion: it contends the seven- (six-) month period would have been greater if “previous significant delays” (which could not be criticized and were not delays at all but merely constituted the ordinary time to process necessary proceedings) had not occurred. In plain English, what the initial opinion then does is reverse a criminal conviction for denial of a speedy trial not on the actual delay the court finds a basis to criticize, but for delay that “would have been substantially enlarged” if the court had not been dutifully attending to other court matters related to the individual. If such speculative and illogical grounds constitute a legal basis for reversing a criminal conviction, the logic completely escapes me. The ground asserted amounts to nothing more than pure speculation. It is thus the ruling with respect to this seven-month period, which the court in effect states controls its disposition of this case, that must be examined to see if the Government was delinquent in not bringing Brown to trial earlier in this period. The chronology of events during the October 12, 1972-March 23, 1973, period is as follows: Oct. 12, 1972 En banc request denied by the U.S. Court of Appeals on its rever