United States v. Marion

PETITIONER:United States
RESPONDENT:Marion
LOCATION:University of Wisconsin-Oshkosh

DOCKET NO.: 70-19
DECIDED BY: Burger Court (1971-1972)
LOWER COURT:

CITATION: 404 US 307 (1971)
ARGUED: Nov 08, 1971
DECIDED: Dec 20, 1971

ADVOCATES:
R. Kent Greenawalt – for appellant
Thomas Penfield Jackson – for appellees

Facts of the case

Question

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.

Potter Stewart:

Mr. Greenawalt there is the general five year statute limitation.

R. Kent Greenawalt:

Yes, yes Your Honor.

Potter Stewart:

And that was —

R. Kent Greenawalt:

That was applicable.

Potter Stewart:

General statute was applicable to this case.

R. Kent Greenawalt:

Yes, yes.

Potter Stewart:

Did it not use to be three years?

R. Kent Greenawalt:

Yes, I think originally it was two years and then it was made three years and then made five years.

Potter Stewart:

How long ago was it made five years, do you know?

R. Kent Greenawalt:

I do not recall Your Honor.

I believe that is in the brief but —

Potter Stewart:

And then there are some special statutes and limitations I think for some criminal, federal criminal offenses.

R. Kent Greenawalt:

Yes, I think some many types —

Potter Stewart:

And I think in homicide there is no statute limitation.

R. Kent Greenawalt:

That is correct.

For homicide and some, I think the treason that in other words, in some tax offenses the statute of limitation is six years.

There is a preliminary question of appealability in this case.

I believe our reply brief and the original brief indicate clearly why appellee’s motion before Judge Hart was a motion in bar within the meaning in Section 3731, and I did not plan to discuss that point further.

Appellees suggest that the constitutional questions need not be reach here because Judge Hart made a discretionary ruling under Rule 48 (b) of the Federal Rules of Criminal Procedure.

Again, I think the record and briefs indicate clearly that the rule was not and could not have been the source of this dismissal.

And so, I move now to the constitutional issues.

In our view, the Sixth Amendment does not apply until the Government has taken some formal accusatory action against the potential defendant.

In terms, it states that the accused shall enjoy the right to a speedy and public trial.

It does not relate to the speed with which one has made an accused.

Appellees suggest that the time one becomes an accused, should be moved back for speedy trial purposes to some point before a formal action, such as when the government focuses on a potential defendant or has sufficient evidence to indict.

Such an interpretation is unwarranted by language or history or any prior decisions of this Court and it would be most unwise for reasons like those which persuaded the Court to refuse to draw a similar line in Hoffa versus United States.

There are many reasons why a prosecutor may decide not to prosecute.

Perhaps, in the typical instance, it is known that a crime has been committed, but the prosecutor thinks he does not have enough evidence to achieve a conviction against a particular potential defendant.

But there are many other reasons for not going forward, especially in this kind of complex prosecution for fraud.

Not all frauds are criminal and the prosecutor may doubt it.

The scheme involves falls on the criminal side of the line, where that he can establish to a jury their falls on a criminal side of the line, or he may doubt even though he is quite certain, he could get a conviction of whether the damage done to the public is great enough to justify using an available criminal sanction, or if there is a state offense he may wait to see if a state prosecution is going to go forward.

R. Kent Greenawalt:

If he is sure that some company representatives have participated in a fraud, he maybe unsure which officials of the company are in fact culpable and which he can prove to be culpable to the jury’s satisfaction.

Putting this altogether, the prosecutor’s decision, whether to prosecute a particular person may not be made until an investigation is progressed far beyond the point of focus or sufficient evidence to indict.

We do not believe that a Court can reconstruct in retrospect when either of those points is reached, and even if it could, it would not make sense to require indictment soon after either of those points have been reach and before an investigation is been completed.

Suppose for example, that in this kind of case probable cause exists on the basis of consumer complaints in documentary evidence, that the United States Attorney judges that a conviction cannot be obtained unless there is an inside witness who is willing to testify to the fraudulent plan as a whole and can also testify the conversation that have been taken place in the —

Thurgood Marshall:

Mr. Greenawalt.

R. Kent Greenawalt:

Yes, Your Honor.

Thurgood Marshall:

I hate to interrupt you but was there any of this before Judge Hart, any of this argument?

As I read it, all of the — I hate to use the word defense, but the only explanation the Government gave was they were understaffed.

R. Kent Greenawalt:

That is correct Mr. Justice Marshall.

Thurgood Marshall:

So, he did not have the benefit of any of this?

R. Kent Greenawalt:

Let me make two points in response to that Mr. Justice Marshall. First, the argument I am making now is not an argument about this particular case, but an argument as to whether in general, the Sixth Amendment should be read to say that a speedy trial — that one becomes an accused for speedy trial purposes at some point before formal accusatory action is made by the Government.

And so what I am making now is a general argument about the Sixth Amendment.

In terms of this particular case, I think there are two facts that — in terms of as far as record before Judge Hart.

One is that Mr. Franco who argued before Judge Hart in these proceedings was not a member of the US Attorney’s office at the time most of this took place and he frankly admitted that he really did not know what had happened in terms of this particular investigation, but that he had been told there was understaffing in a very heavy case load.

The second point is that the Government took the position, I think quite justifiably on the basis of any decisions of this Court and of the great majority of other Federal Courts, took the position that unless there was some specific prejudice.

Appellees here are not even alleged something that would rise either to a violation of the Sixth Amendment or to the Fifth Amendment.

And so, he relied primarily on that failure to show any specific prejudice in arguing before Judge Hart.

So, I think that he did not think it was relevant assuming if there was not a purposeful delay, what the reasons for delay were and I think that is part of the explanation why that is not more fully developed in those proceedings.

May I ask you, is the Government going so far as to suggest that if formal action is taken before the statute of limitation runs out, then there can not be a violation of the Sixth Amendment?

R. Kent Greenawalt:

Yes, yes it would be a question of defining what formal accusatory action meant.

Well, let us assume it, will either information or indictment, in a five year statute, is the Government suggesting that if an indictment or an information is brought down on the day before the statue runs out, then that — there can then be no basis for a claim of the Sixth Amendment violation?

R. Kent Greenawalt:

No, we can see that the Sixth Amendment is applicable to some formal accusation before an indictment, such as a complaint, an arrest followed by incarceration.

What I am trying to get here at is no formal actions is taken at all the day before the —

R. Kent Greenawalt:

Yes, that is our contention that the Sixth Amendment has no application.

But, conceding that there maybe a Fifth Amendment?

R. Kent Greenawalt:

Yes, we do believe the Due Process Clause covers —

Now this depending however on the showing of prejudice?

R. Kent Greenawalt:

Yes, Your Honor.

Only on that basis.

R. Kent Greenawalt:

Our contention is that in most kinds of cases what must be shown is both specific prejudice and serious government misconduct.

R. Kent Greenawalt:

Now, I think it is a little more complicated in the sense that if the government’s conduct is really grouse, then perhaps the showing of prejudice might not have to be so great.

If the showing of prejudice is tremendously great, it might even be conceivable that no matter how good the government’s explanation, a prosecution could not go forward.

But, this in any event, would be exclusively a due process basis?

R. Kent Greenawalt:

Yes, Your Honor.

And not a Sixth Amendment?

R. Kent Greenawalt:

Yes, Your Honor.

Byron R. White:

I suppose you are going to get to that.

R. Kent Greenawalt:

I am, yes, Mr. Justice White.

To return very briefly to the example that I was suggesting which is that probable cause exists, that the the prosecutor does not think he can successfully prosecute without an inside witness.

Then let us suppose two years later, but within the statute of limitation, an inside witness is willing to testify.

Is prosecution to be barred simply because probable cause existed two years earlier?

We do not believe there is any good reason to distinguish cases in which the prosecution has little or no evidence from those as which there is probable cause, but insufficient evidence to convict in which the prosecutor will decide not to go forward.

If indictments are brought whenever a probable cause exist, the result would be a great waste of resources in the criminal process, and more important, very serious misfortune to those persons who were indicted but never tried and convicted, because the government indicts because it realizes that this is the probable cause stage and then decides it does not have enough evidence to convict and dismisses the case.

Well, that is a serious misfortune to the fellow that is indicted.

Mr. Justice Brennan, in a concurring opinion Dickey versus Florida suggested a somewhat different point, that is the possibility that one might become an accused “after the government decides to prosecute and then have sufficient evidence for arrest and indictment.”

It is our position that that point also is too difficult to determine.

That is a tentative decision to prosecute, and is typically subject to change particularly in this kind of case as an investigation unfolds.

If that is thought to be the standard however, there is no reason to suppose on this record that a decision was made to prosecute these appellees until the case was — shortly before the case was brought to the grand jury.

And that is on this record, you are going to find that is suggested standard, there is no reason to think that Sixth Amendment is implicated in this case.

I turn now to the Due Process Clause.

It is our position referring extraordinary circumstances of the statute of limitation sets the time limit in which the government can act against the potential defendant.

We do however believe, that in certain exceptional circumstances, the Due Process Clause may bar a conviction.

For example, if the government purposely delays, some ill witness to be known to be favorable, the defendant has a chance to die and the lack of that witness is prejudicial, we would believe that that would appropriately constitute a denial of due process, but absolutely precluding conviction for an offense is a drastic remedy, much more drastic than is involved in the implementation of most other constitutional rights, and we think it should be involved only in such exceptional circumstances.

Any lapse in time between offense and trial may affect a trial to some extent.

The defendant’s primary protections, as the Court has indicated and as I stated it earlier, are in the statute of limitations and the reasonable doubt requirement.

It is not contended by appellees in this case that if the government had simply remained ignorant about its activities that trial had might be afforded would be a denial of due process, nor did they contend that they have suffered any greater prejudice than would defendants in a similar situation where the government had remained ignorance for three years after the offense had taken place.

Indeed, the possibility of prejudice here could be a bit less.

Essentially, their claim comes down to this, because the government had awareness of some complaints and was involved in cases of higher priority, we were denied due process even though the government has been totally ignorant of what we were doing, we will not be denied due process.

We do not believe the right to a fair trial turns on such a distinction only if delay is oppressive and purposeful and causes specific prejudice should due process be held to bar an indictment within the statute of limitation.

We further think that if the Due Process Clause is read to entail nice distinctions of time, subtle degrees of prejudice and the reasonableness of the prosecutor’s ordering of priorities in this area, the courts will be involved in time consuming collateral proceedings which will help to defeat the overall objects rather than help it of an expeditious determination of guilt or innocence.

R. Kent Greenawalt:

Turning out to the showing in this case, appellees have made no persuasive showing of prejudice.

Theories in Ewell are claimed as insubstantial, speculative and premature.

They have not suffered from the incarceration and the anxiety in concern that formal accusation they bring.

The government’s case, it is said, is based on large part on documents as to these elapse in time is irrelevant.

Insofar as testimony make in turn specific conversation between salesman of the company and homeowners, it is highly unlikely that the salesmen who have many transactions each day would remember specific conversation, months or even weeks after the conversation.

What company officials would recall would be their normal motive business operation.

And there is no reason to suppose that that has been forgotten here, especially since appellees have had abundant notice that their operations were subject to attack first to the F.T.C. inquiries, then to the newspaper articles, then to a series of civil complaints, and finally, from turning over the records of the United States Attorney.

It is incredible to suppose that they have not carefully considered and reconsidered how they carried on their business.

Moreover, they are free to call any of the homeowner clients they have had and do not think they have been defrauded.

It is even possible that there will not be a substantial discrepancy as to the crucial fact that this case goes to a trial,, since Mr. Jackson indicated on Pages 28-29 of the Appendix that at least about many of the basic operations of the company, there was not a dispute as to the fact.

If appellees have suffered prejudice, that can be demonstrated at their trial and in a very small number of cases in which convictions have been overturned because of a lapse in time before arrest or indictment.

The Court has made that determination with the record of trial in front of it, such as in the Ross case.

Secondly, appellees have not subjective, much less demonstrated, the kind of government delay, which should be held to be unjustifiable.

We have to suppose on the basis of the sparse record that the limited staff was initially focusing on complaints concerning companies deemed to greater social danger and that later considerable time was spent in developing this complex case.

Fraud cases of this kind, and a number of the Court of Appeals have recognized this, are notoriously difficult and time consuming to develop.

A Court simply is not in position of assessing whether an ordering of priorities is desirable.

Unless there is some special reason to suppose that this ordering is being performed in an arbitrary way, the Court should not consider pre indictment lapse caused by limited resources to be a form of unjustifiable delay.

If this position is rejected and an examination is to be made of the ordering of priorities, which we do not think is necessary, then surely it should be done in a full hearing which will allow development in this case that the facts concerning possible prejudice and the government’s ordering of priorities.

But it is essentially our position that the allegations here do not even make out a claim of constitutional violation and we thus contend that the case, the judgment should be reversed and the case should be remanded, so that the indictment maybe reinstated.

Mr. Chief Justice, I would like to reserver the remaining of my time for rebuttal.

Warren E. Burger:

Very well, you have about six minutes I think.

Mr. Jackson.

Thomas Penfield Jackson:

Mr. Chief Justice and may it please the Court.

On June 8th, 1970 District Judge George Hart dismissed the indictment of Marion and Cratch using his words for lack of speedy prosecution in this case.

That formula of words can either be a paraphrase of the Sixth Amendment requirement of a speedy trial; it could be an exercise of the inherent discretionary power of the Court to dismiss for want of prosecution; or it could conceivably have been an exercise of power conferred especially upon the Court by Rule 48 (b) conferring power upon the District Judge to dismiss for unnecessary delay in presenting the charge to the grand jury.

With the exception of the jurisdictional issue, which I do not intend to take any protected time with, the principal issue raised by this appeal underlies all of the various predicates, the possible predicates for Judge Hart’s decision, which is whether any significance whatsoever is to be given to the elapse of time between the commission of an alleged defense and the date on which the indictment is filed in determining whether an accused should be required to stand trial on criminal charges, assuming, however, that there is technical compliance with the statute of limitations.

Briefly, it is the appellees position that the filing of the indictment is really, merely a ministerial formality which is exclusively or virtually exclusively within the control of the government, and the government should not be given unlimited and unsupervised used of the entire period of limitations to assemble its case.

And then to indict only when it is in effect ready for immediate trial.

It is hardly necessary to emphasize the attention being paid to the problem of speedy trial today in this country and rules and statutes are being formulated in a number of jurisdictions to provide that once the prosecution has been formally commenced by the filing of an indictment, then specific periods of time limitations should be followed, following the formal accusation by indictment, and it is our position that there will be a frustration of those rules if the government can indulge itself during the entire period of the five year period of limitations during which time it assembled its case which is largely in secret, largely beyond the scrutiny of the defendant and probably will remain beyond the scrutiny —

Thurgood Marshall:

Mr. Jackson, did you say the day after the crime has been discovered and the government says five years after the crime has been discovered, where do we come down?

Thomas Penfield Jackson:

Our —

Thurgood Marshall:

Do you agree that there is no evidence in either one side or the other?

The government does explain its delay and you do not show any interest, is that right?

Thomas Penfield Jackson:

That is correct.

We have shown —

Thurgood Marshall:

And we have just the fact of the date, that is all we have.

Thomas Penfield Jackson:

Well, we submit Your Honor that the —

Thurgood Marshall:

You know, we will send in (Inaudible), it would come down to two-and-a-half, would it not?

Thomas Penfield Jackson:

Yes, Your Honor.

Thurgood Marshall:

But we can not do that — we can not do that with constitution.

Thomas Penfield Jackson:

We do not expect that that will be the result in this case or it should be the result.

The government contends that it was understaffed.

In the 1960’s, the US Attorney’s office did not have sufficient staff to prosecute them.

So there is the scale of explanation on the part of the government.

Warren E. Burger:

Well, we are not compliant to that explanation if we — for the matters we can judicially notice, are we?

That is argument; that was not evidence.

Thomas Penfield Jackson:

I think that is correct Your Honor, but it is the only explanation that the government has offered throughout for its delay and bringing the prosecution in this case.

Warren E. Burger:

Well, we will have no trial, so there was no occasion to give them anything here except the legal arguments.

Thomas Penfield Jackson:

But the government did not proffer or offer any explanation other than what it is, what it —

Warren E. Burger:

I do not read this record to the judge’s action of indicting anybody to go into the facts, you cut off by saying the prejudice is bound to have occurred.

Thomas Penfield Jackson:

I think he did.

Warren E. Burger:

And probably an invitation to pursue the inquiry.

Thomas Penfield Jackson:

I think his conclusion was that he himself took judicial notice if you will of the fact that there is an attrition of human memory over the lapse of time particularly of one of the magnitude of which we are speaking here and that he did not need any formal demonstration from the witness stand of actual prejudice.

He did certainly give the government an opportunity to explain why it had taken so long to do so and the only explanation which was offered was that in argument by the Assistant US Attorney who argued the case who could have had he had evidence of other reasons presented that evidence at that time.

I do not believe that the record can be read as providing for an abrupt interruption by Judge Hart of, Mr. Franco.

I think he extended him all the courtesy and the opportunity to make his case that he needed to do.

I do not see that the government has been denied him opportunity and the government, of course, knew that the facts that we were representing to the Court have been made in the motions papers and could have responded had it wished to do so with other facts of its own.

In 1965-1966 the, Mr. Marion was the proprietor of the business firm which sold homeowner home intercom system to homeowners in the district and without going into the business practices in any great detail, by the second week of December of the year 1966, the Federal Trade Commission at that time had reasonable grounds to believe that there had been a violation of the law and they proceeded against Mr. Marion.

Mr. Marion did not contest those proceedings and by the first week of February 1967, the Federal Trade Commission issued a cease-and-desist order, and so all of the information about the business practices which the government has characterized as a complex fraud case, all of this information was in the possession of a government.

Nothing what else, whatsoever, nothing else, whatsoever occurred from February of 1967 until October of 1967 when the newspaper articles coupled with editorials which vehemently demanded prosecution of the People Newspaper articles, though were the culprits, exposed these business practices to public view and actually branded them as fraudulent.

Thomas Penfield Jackson:

On October 4th, 1967 on the front page of this morning newspaper Mr. Marion and the entire Washington DC Metropolitan area saw him publicly denounced as a cheat and a fraud.

Dealing with the — the question is to whether or not there is a showing of prejudice in this case and I indicated to you sir in your response to your question that there is a showing of actual prejudice.

In that, there is an attrition or it can be assumed that there is an attrition of human memory and a lapse of human memory.

As a graphic illustration of that, at the same time that these articles were appearing in the newspaper, the 1967 world series was being played, and Judge Hart was asked to conceive with the difficulty of remembering the details of the 1967 world series which had occurred in 1967, not 1965-1966 as the events, the 23 month so called business fraud which the government alleges in this indictment and it is difficult I think for all of us to remember the details of events that far in offense.

Potter Stewart:

They all have — I think if you had played in the world series of 1967, he remembered the details very well.

Thomas Penfield Jackson:

If indeed you had played that and there is no showing that Mr. Marion played —

Potter Stewart:

And your client guarantedly was involved in this case.

Thomas Penfield Jackson:

That is correct.

Potter Stewart:

It was in the side line, high standards for a newspaper reader.

Thomas Penfield Jackson:

Well, that remains to be seen Your Honor since the case is not been tried.

Potter Stewart:

I think the allegation is that your client was involved in this.

Thomas Penfield Jackson:

It was — and that he was involved, yes, whether or not he was involved in the so called criminal activities; it is another matter.

Potter Stewart:

And that is we tried, of course.

Thomas Penfield Jackson:

These articles however, were filled with anonymous quotations attributed to the United States Attorney to the effect that a special fraud squad had been setup that the chief of that fraud squad had been relieved of all other duties and was to be concentrating on these cases, thereafter exclusively, and that he also indicated or is quoted as having indicated that he expected indictments within two weeks.

But nothing happened within the next two weeks or the next two months and it was not until by Marion’s recollection of the following summer that anything whatever occurred, the government remembers that it was winter, a year when it occurred and that was an informal inquiry from the Assistant United States Attorney, in charge of the case to bring records and documents down to the office.

Now, we do not know how voluminous these records were or at least it does not appear off record how voluminous they were but it can be inferred from the record that they were of no greater quality than to have required one trip by one man to take them to the Assistant United States Attorney’s office, which he did, and he conferred with Mr. Glanzer the Assistant United States Attorney in charge of this matter, and he did so at some lenght.

Again, nothing happened.

An entire year passed and more and finally, in March of 1970, Mr. Marion —

Thurgood Marshall:

As of that time, should he be indicted then?

Thomas Penfield Jackson:

Your Honor, our position is that it is a rule or ought to be a rule of reason.

The question is when did the government objectively have noticed that a crime had been committed by the one they intended to bring to trial for and once that rule of reason is applied, which cannot be any hard and fast rule —

Thurgood Marshall:

Was your rule was the conspiracy?

Thomas Penfield Jackson:

I am sorry Your Honor; I did not understand the question.

Thurgood Marshall:

There is a possibility of eight people conspiring, you assume there is one, you do not know the other seven. You can not indict that one right then and there?

Thomas Penfield Jackson:

I do not think so Your Honor, I think again that would be one of the factors to be considered and when the government ought to proceed for an indictment.

Thurgood Marshall:

But do you think that every indictment now, that you expect the Court to find out whether it should have been handed up in June instead of August?

Thomas Penfield Jackson:

No, Your Honor.

I think in the vast run of cases it did not occur.

Thurgood Marshall:

Well, what is your — this is the third time, I am still trying to get what is your rule?

Thomas Penfield Jackson:

Our rule —

Thomas Penfield Jackson:

The rule that we believe ought to be applied is one of notice, simple of notice to the government, consisting with all of the various factors which bear upon the rapidity with which a case ought to be brought to prosecution.

Thurgood Marshall:

Federal Trade Commission did not give notice?

Thomas Penfield Jackson:

It did give the defendant notice —

Thurgood Marshall:

It gave you a cease-and-desist notice.

Thomas Penfield Jackson:

Our position is that, it is the notice to the government, when does the government objectively know —

Thurgood Marshall:

But did not the government assume that you had ceased-and-desisted?

Thomas Penfield Jackson:

I am sure that it could assume that it had ceased-and-desisted, yes sir, yes Your Honor and that in fact was the case.

Thurgood Marshall:

They did not have to indict then, did they?

Thomas Penfield Jackson:

I do not believe so Your Honor.

Thurgood Marshall:

Well, when?

Thomas Penfield Jackson:

Within a reasonable time thereafter.

Thurgood Marshall:

What time?

Thomas Penfield Jackson:

Again, it would be consistent with all of the facts of the case that the government have — was there a fugitive defendant, for example.

Thurgood Marshall:

Well, I assume that you said to the District Court, to Judge Hart, that two-and-a-half years is pro se too long period.

Thomas Penfield Jackson:

No, Your Honor.

Thurgood Marshall:

Per se, I mean per se?

Thomas Penfield Jackson:

Per se, except to the extent that prejudice maybe inferred or presumed from the lapse of time in the attrition of his memory, his ability to respond to these stale charges.

Thurgood Marshall:

So now if that rule is applied then anybody that is indicted four years after the crime automatic files a motion and is dismissed?

Thomas Penfield Jackson:

I do not believe so, Your Honor.

Thurgood Marshall:

All mail fraud cases?

Thomas Penfield Jackson:

Again, not in all mail fraud cases.

Thurgood Marshall:

The means burden put on the government to show why it took four years?

Thomas Penfield Jackson:

I think the burden, ultimately, would devolves upon the government to show why they have waited after the defendant had assumed the burden of showing that the government had objective notice of the existence of the crime and that it —

Thurgood Marshall:

And that was four-and-a-half years after that, clearly, that is all the defendant shows?

Thomas Penfield Jackson:

In a case such as this, I would think so.

Thurgood Marshall:

And if the government does not remand it this way?

Thomas Penfield Jackson:

If the government does not sustain its burden of explaining why the delay was as extensive as it was, given those circumstances.

Thurgood Marshall:

You got any case you can cite on this?

Thomas Penfield Jackson:

Well, Your Honor, perhaps, the most recent exposition of the considerations involved is Mr. Justice Brennan’s concurring opinion in the Dickey versus Florida case in which all of these considerations are explored.

Thurgood Marshall:

Did he say per se automatically?

Thomas Penfield Jackson:

No, Your Honor I do not believe he said per se.

Thurgood Marshall:

(Inaudible)

Thomas Penfield Jackson:

He did not say that it was a per se rule but we are not contending for a per se rule, we are simply contending for a rule in which there is a rule of reason as to the time which the government is to be advised to go forward.

Thurgood Marshall:

(Inaudible) that most stop fraud and other types of cases, in mail fraud cases, they barely get it in before the statute of limitation.

Thomas Penfield Jackson:

If the government had had a reason for delaying four years in this case, it could have been advanced before Judge Hart and was not.

Thurgood Marshall:

Yes, but that is not the ground that you did listed, you just listed on the grounds that two-and-a-half years is too long; that is what he said.

Thomas Penfield Jackson:

He found that there was bound to have been an attrition of the memory of the defendants in this case.

Thurgood Marshall:

Do you want us to sustain that?

Thomas Penfield Jackson:

Yes, Your Honor I do.

Thurgood Marshall:

Which means it makes way to all two-and-a-half year indictments to go out as of now?

Thomas Penfield Jackson:

Well, I do not know where the period two-and-a-half years derives, Your Honor, that last event charged in the indictment, charge occurred in January of 1967.

Thurgood Marshall:

Well, all four-and-a-half years indictments go out.

Thomas Penfield Jackson:

I do not believe that this requires a per se rule as to four year delays.

Warren E. Burger:

On what evidence did Judge Hart break make that finding?

Thomas Penfield Jackson:

The finding as to the attrition of the individual’s memory?

Warren E. Burger:

Yes.

Thomas Penfield Jackson:

I think he presumed it.

Warren E. Burger:

Yes.

Thomas Penfield Jackson:

He had no evidence, that is correct, no testimony as to actual prejudice.

Mr. Jackson, as your argument of rule of reasonomg, is that predicated under Sixth Clause or the Due Process clause?

Thomas Penfield Jackson:

Our argument here is predicated upon the Sixth Amendment while there is conceivably could be a due process argument based upon extreme circumstances.

Warren E. Burger:

You were discussing Dickey against Florida a little bit earlier.

Thomas Penfield Jackson:

No they do not Your Honor.

Warren E. Burger:

The reasons for the delay by the State of Florida in that case was that the man was, Dickey was in a federal prison and it was pointed out in the Court’s opinion, they could have reached him anytime and brought him down for the trial, but they just deliberately waited until he was released and to be released from the federal penitentiary.

Thomas Penfield Jackson:

That is correct Your Honor although there are — it was not too long prior to that, the Dickey versus Florida that there was substantial question as to whether or not there was an obligation on the State to request an individual —

Warren E. Burger:

All I am suggesting is Dickey against Florida, in its facts, does not have much to do with this case, does it?

Thomas Penfield Jackson:

If the facts are clearly distinguishable there is no question about that Your Honor.

Potter Stewart:

That would be — what did the legislative history shows?

Thomas Penfield Jackson:

Legislative history shows —

Potter Stewart:

Does it show what you just said?

Thomas Penfield Jackson:

Yes, Your Honor, it is cited in our brief.

Warren E. Burger:

But we have to assume from that this extension from three years to five years was thoughtlessly done without any concern for the realities.

Thomas Penfield Jackson:

I do not suggest that it was thoughtlessly done.

Warren E. Burger:

All of these rules that you are suggesting such as the Second Circuit rule and recent actions in other areas have had to do with bringing cases on for trial after indictment have been off?

Thomas Penfield Jackson:

That is correct Your Honor and our position —

Warren E. Burger:

None of those things reached the problem we are dealing with here.

Thomas Penfield Jackson:

None of those cases, none of those rules reached them and in fact, our position is that they will be frustrated, vitiated in effect, if the government has the entire five year hiatus of the period of limitations to do whatever it needs to do to prepare its case, and then and only when it is ready to go to trial, it obtains the indictment and then announces immediately, we are ready for trial against the defendant who may have been during a four year period unaware of —

Byron R. White:

Who these accuses would be?

Thomas Penfield Jackson:

What evidence would be offered to support those accusations and how in the world he could undertake to disprove the allegations that would be made against him.

Warren E. Burger:

Thank you Mr. Jackson.

R. Kent Greenawalt:

Mr. Chief Justice and may it please the Court.

Warren E. Burger:

Thank you Mr. Greenawalt.