LOCATION: University of Wisconsin-Oshkosh
DOCKET NO.: 70-19
DECIDED BY: Burger Court (1971-1972)
CITATION: 404 US 307 (1971)
ARGUED: Nov 08, 1971
DECIDED: Dec 20, 1971
R. Kent Greenawalt - for appellant
Thomas Penfield Jackson - for appellees
Facts of the case
Media for United States v. Marion
Audio Transcription for Oral Argument - November 08, 1971 in United States v. Marion
Warren E. Burger:
We will hear arguments next in number 19, United States against Marion and Cratch.
Mr. Greenawalt, you may proceed whenever you are ready.
R. Kent Greenawalt:
Mr. Chief Justice and may it please the Court.
This case is on direct appeal from an order of the United States District Court for the District of Colombia, dismissing an indictment on the ground that the government had failed to afford a speedy trial.
The government appealed directly to this Court pursuant to the old Criminal Appeals Act 18 U.S.C. Section 3731, under the provision that permits an appeal from a judge decision or judgment sustaining a motion and bar when the defendant has not been put in jeopardy.
Appellees were indicted on April 21st, 1970 on 19 counts of mail fraud; wire fraud and transportation of falsely made or altered security.
The indictment charges that appellees in operating a home improvement company called Allied Enterprises to fraud the home owners in various respects, including persuading the designed deeds of trust on their homes in promissory notes by falsely concealing the nature of these documents from the homeowners.
The indictment charges of the fraudulent scheme continued until February 1967, but the last particular act, mentioned in the indictment, occurred on January 19, 1966.
After the indictment, appellee Marion made a motion to dismiss the indictment for failure to afford a speedy trial, which is set out on pages 12-14 of the appendix, claiming that the failure to indict sooner constituted a violation of his rights under the Fifth and Sixth Amendment.
On June 8th 1970, Judge Hart considered the motion to dismiss that developed in these proceedings that in February 1967, the Federal Trade Commission had issued cease-and-desist order against Allied Enterprises and Marion.
And then in the series of articles in late September and early October 1967, the Washington Post had written about the activities of approximately a dozen home improvement companies which the articles claimed were defrauding the public, particularly and get a variance.
The activities of Allied Enterprises were described in one of these series of articles.
The articles also indicated that United States Attorney was generally aware of the abuses that it reported and as he planned an investigation.
The articles did not indicate that an investigation or to bringing of criminal charges was planned in respect to any specific company or individuals.
Either in the summer of 1968, according to Mr. Marion or early in 1969, according to the Assistant US attorney, the records of Allied Enterprises were turned over by Marion to the US Attorney’s office.
At the proceedings before Judge Hart, Mr. Jackson, representing Marion argued that given the public knowledge of the activities of Allied Enterprises, the failure to return the indictment until more than four years after the last noted event and more than two-and-a-half years after the articles, violated Marion’s rights to a speedy trial under the Sixth Amendment.
Mr. Franco, the Assistant US attorney stated that the Government's position at the motion should be dismissed in the absence of showing a prejudice.
He indicated that so far as he knew the reason of indictment that had not been returned sooner was under staffing and a heavy case load.
Judge Hart did not write an opinion, he indicated in an oral statement which is set out at Page 39 of the Appendix that in the absence of a justifiable reason for the delay from 1967 in a lightly prejudiced cause there was a lack of speedy prosecution and he granted the motion to dismiss.
Appellees did not allege and Judge Hart did not find any specific prejudice to appellee, such as the death of a key witness or the destruction of a particular document.
Judge Hart stated that, “The ability to remember to build up in one's recollection, to produce the necessary defense is bound to have been seriously prejudiced by the delay.”
This case presents the question whether in this kind of complex fraud prosecution, a defendant’s rights to a speedy trial or due process are violated per se by a lapse of two-and-a-half years between the time it is assumed that the prosecutor’s office has knowledge of complaints that might conceivably lead to a criminal prosecution, a lapse of two-and-a-half years between that time and the return of the indictment.
I say that the case poses the questions of whether the lapse is per se a denial of constitutional rights because there is no showing on this record that defendant suffered any particular prejudice or that the Government acted purposefully, arbitrarily or even negligently in not bringing the case before the grand jury sooner.
We believe that there is not nor should there be such a per se rule.
Lapses in time between offense and formal accusation are, as this Court said in United States versus Ewell, governed primarily by the statute of limitation.
A potential defendant is further protected by the rule that guilt must be proved beyond a reasonable doubt.
A heavy burden on the Government that will ordinarily become greater as the time between offense and trial increases.
I shall argue that the Sixth Amendment does not apply before any formal accusatory action is taken by the Government that the Due Process Clause may reach certain exceptional circumstances in which time has elapsed before a formal accusation, but the due process is not denied unless there is substantial and special prejudice to a potential defendant and serious misconduct by the Government.
That neither substantial prejudice nor serious misconduct have been alleged here, much less shown and that therefore the judgment should be reversed and the indictment reinstated.
Mr. Greenawalt there is the general five year statute limitation.