The United States respectfully petitions this Court for a rehearing and suggests a rehearing en banc from the decision in this case filed January 23, 1976 which reversed the judgment of the district court denying appellant's motion to dismiss upon the ground of denial of his Sixth Amendment right to a speedy trial and ordered the indictment dismissed with prejudice.

The decision in this case consists of two holdings. The panel first held, without dissent, that it had jurisdiction to review the denial by the district court of appellant's speedy trial claim. It then held, with Judge Craven dissenting, that the speedy trial claim was meritorious and on that basis ordered the indictment dismissed with prejudice.

As a result of this ruling, appellee -- charged with the serious offense of murder -- has obtained immunity from ever undergoing a trial which would determine his guilt or innocence. In affording him this immunity, moreover, the panel has promulgated rules which we submit are irreconcilable with the proper administration of criminal justice. First, the panel has expanded the reach of this Court's earlier decision in United States v. Lansdown, 460 F.2d 164 (1972) -- which itself ran contrary to face long established and frequently reiterated rulings of the Supreme Court by authorizing a piecemeal appeal from an interlocutory district court order. The effect of this expansion is quite likely to engender the type of dilatory appeal resulting in the delay which the Supreme Court has held is "fatal to the vindication of the criminal law." Cobbledick v. United States, 309 U.S. 323, 325 (1940).^[1]

Second, in holding that appellant's speedy trial rights were violated, the panel majority has adopted the rule that delay for Sixth Amendment purposes is to be computed from the time that an individual is first placed in custody, regardless of the fact that he is subsequently released unconditionally from that custody because of insufficient evidence to proceed further. The effect of this rule is to leave the government with only two options following arrest: either to proceed expeditiously to indictment and trial or else forfeit its right to charge and try the individual. The alternative of dismissing the complaint and releasing the individual while further investigation is undertaken is foreclosed by the decision of the panel majority. This holding conflicts both with society's interest in effective law enforcement and the interest of an innocent accused in avoiding the hardship of trial. Under the panel's ruling in some instances, guilty persons who are prematurely arrested will be acquitted because the government is deprived of time to make an adequate investigation;^[2] in other cases, innocent persons will be forced to stand trial where fuller investigation would have led to the dropping of charges against them.

Because of the affect upon the administration of justice of both the panel's appealability holding and the majority's application of the Sixth Amendment speedy trial clause, we submit that this case is worthy of further review by the entire Court.

In Lansdown supra, this Court held that denial of a motion to dismiss the indictment on double jeopardy grounds made prior to retrial after such a mistrial is immediately appealable. In the course of its opinion the Court stated that its decision "will apply only to that very small number of criminal cases in which a mistrial is declared against the wishes of the defendant." 460 F.2d at 172. Jurisdiction for immediate appealability was found on the basis of the "collateral order" doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541(1949). Id. at 170. The Court held that Cohen governed since the right "to be free from being twice forced to stand trial for the same offense" was "separable from, and collateral to, the main cause of action," being constitutional was "too important to be denied review," and would be "irreparably lost" if immediate review were not afforded. Id. at 171. The Court subsequently explained that, by "irreparably lost," it meant that in the absence of immediate appeal the defendant would not be provided the "full protection" of the double jeopardy clause, since even if his conviction on the second trial were reversed on double jeopardy grounds he would still have been "subjected to the embarrassment, expense, anxiety and insecurity involved in the second trial." Ibid.

Appellant in this case also made, in addition to his speedy trial claim, a double jeopardy claim which was rejected by the district court. His claim was not, however, based upon a mistrial declared at an earlier trial; rather his contention was that the determination by the Army, after a hearing held pursuant to Art. 32, Uniform Code of Military Justice (10 U.S.C. 832), not to convene a general court martial constituted prior jeopardy which barred trial of this indictment. Despite Lansdown's express limitation as to the applicability of its holding. (see above), the panel, upon the authority of that case, stayed appellant's trial and allowed his interlocutory appeal from denial of both, his double jeopardy and speedy trial claims because "the rights asserted are too important to be denied review, and if review is postponed until after trial of the case, claimed rights will have been irreparably lost" (see slip opinion at 2, n. 3). In its opinion, the panel held that ''[t]he denial of MacDonald's plea of double jeopardy, like Lansdown's, is a proper subject for interlocutory review" (id. at 3); the speedy trial claim was also held to be a proper subject for interlocutory appeal because it involved "a fundamental constitutional right," was "[p]endent to the double jeopardy claim and closely related to it," and could "be decided without considering the merits of the charges against MacDonald." Id. at 4.

We submit that this Court's original appealability ruling in Lansdown, which provides the underpinning for the panel's assumption of jurisdiction in this case, is erroneous and should be overruled. But even if the Court should not wish to take that step, it should at the minimum reassert Lansdown's restrictions on its own applicability. Otherwise the door will be open to wholesale jurisdiction for appeals from pretrial orders which will substantially erode, at least in this Circuit, the principle of finality upon which federal appellate jurisdiction is based.

A. The Lansdown ruling -- and therefore, of necessity, the panel's expansion of that ruling in this case -- is in direct conflict with early decisions of the Supreme Court which have never been repudiated. Twice the Supreme Court, in enunciating the limits on its own appellate jurisdiction, has held that the denial of a plea in bar^[3] is not "final" for purpose of appealability. In Rankin v. United States, 78 U.S. 380 (1970), the Court held that it had no jurisdiction to entertain a pretrial appeal from denial of a double jeopardy claim. In Heike v. United States, 217 U.S. 423 (1910), it similarly held that it had no jurisdiction to entertain a pretrial appeal from denial of a claim of statutory immunity; in so doing, it analogized a plea of immunity to a plea of former jeopardy and reaffirmed its Rankin holding. 217 U..S. at 432-433; see also Eastman v. Ohio, 299 U.S. 505 (1936).

The promulgation of the "collateral order" doctrine in Cohen has in no way undercut the continuing vitality and authority of Rankin and Heike. The litmus test for collaterality is whether an order "can be reviewed without halting the main trial." Stack v. Boyle, 342 U.S. 1, 12 (1951) (Jackson, J. and Frankfurter, J., concurring). Thus, in Stack, trial could go forward while the order setting bail was reviewed; if the appellate decision was favorable to the defendant, he would get the benefit of it from that point on. Similarly, proceedings could continue in Cohen while the denial of the defendants' motion to require the plaintiffs to post a security bond was appealed; the defendants would be adequately protected by a favorable appellate decision rendered at any time prior to conclusion of the main proceedings, since at that point the plaintiffs would have to post the bond on pain of having their suit dismissed. On the other hand, trial must be deferred -- as it was in this case -- while the denial of a defendant's double jeopardy or speedy trial claim is reviewed, since the essence of the claim is that trial is barred by reason of prior jeopardy or undue delay.^[4]

The flaw in Lansdown lies in its assumption that the main cause of action in a criminal case "is whether [the defendant] is innocent or guilty of the crimes charged." 460 F.2d at 171. If this assumption were correct, it is readily apparent that pretrial disposition of a Fourth Amendment claim -- which challenges the admissibility of relevant evidence of guilt on the collateral ground that it was unlawfully procured by the government -- would be subject to immediate appeal, and yet long after Cohen the Supreme Court held that appeal in such cases must await final conviction. DiBella v. United States, 369 U.S. 121 (1962). The simple answer to the Lansdown assumption is that guilt or innocence is merely one of the issues directly involved in a criminal case. As the Supreme Court held in Heike, 217 U.S. at 429 -- and reiterated, after Cohen, in Parr v. United States, 351 U.S. 513, 518-519 (1956) -- "[t]he thing litigated" in a criminal case "is the right to convict the accused of the crime charged in the indictment." In contesting that right, as Heike went on to explain, it is open to the accused, inter alia, "to raise an issue of law upon the indictment by demurrer, to plead in bar, or to plead to the general issue." Ibid. Thus, to successfully assert its right to convict, the government must not alone prove guilt but must also establish (if the issues are raised) such matters as that the indictment is not faulty or unconstitutionally based and that trial and conviction are not barred by a grant of immunity, prior jeopardy or undue delay. Denial of a double jeopardy or speedy trial claim is therefore as much a "step toward final disposition of the merits of the case" which will "be merged in final judgment" (see Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546) as is, for instance, denial of a pretrial supression motion or a motion to dismiss on the grounds that the indictment does not charge an offense, the charged conduct is constitutionally protected, or the indicting grand jury was unlawfully convened.

The conclusion that orders denying double jeopardy or speedy trial claims are not collateral also answers the reasoning of Lansdown, 460 F.2d at 171, reiterated by the panel in this case (slip opinion at 2, n. 3), that the rights claimed will be "irreparably lost" if immediate review is not afforded.^[5] If an order is truly collateral, denial of immediate appeal is likely to result in an irreparable loss of the right claimed. Thus, in Stack, once a verdict of conviction was returned the defendant's claimed right to release on reasonable bail pending verdict would have become moot. Similarly, in Cohen an appellate decision after judgment in the main suit upholding defendants' claimed right to require the plaintiffs to post a security bond as a condition to maintaining the suit would have come too late to have any utility. A post-conviction appellate decision upholding a double jeopardy or speedy trial claim, on the other hand, would by no means be moot, as it would result in reversal of the defendant's conviction. Indeed, Lansdown acknowledged as much, but reasoned that in the absence of immediate rereview a defendant would not be afforded the "full protection" of the double jeopardy clause. 460 F.2d at 171. The loss of merely part of the benefits of a claimed right, however, is not an "irreparable" loss for purposes of creating appellate jurisdiction under Cohen; it is only "where denial of immediate review would render impossible any review whatsoever of an individual's claims" that the loss is deemed irreparable enough to warrant immediate appeal United States v. Ryan, 402 U.S. 530, 533 (1971). (Emphasis added).

B. If the Court does not overrule Lansdown, it should at least reassert that case's restrictions on its own applicability, thereby minimizing the opportunity for dilatory appeals which has been substantially widened by the panel decision in this case.^[6] Limiting the application of Lansdown, in accordance with its express terms, to cases in which a prior trial has been aborted over the defendant's objection would at least tend to restrict appealability to instances in which there is a substantial basis for believing that a defendant may in fact be confronted with an unconstitutional second trial, and would militate against the use of a merely colorable double jeopardy claim as a dilatory tactic. Here, however, as Judge Craven pointed out in dissent(slip opinion at 31), the panel majority has compelled the dismissal of "the only prosecution ever begun against Dr. MacDonald." (Emphasis in original). Appellant's claim of prior jeopardy is bottomed on the fact that after what amounted to no more than a preliminary hearing, a court martial was not convened. This is patently no more than a colorable -- if not a frivolous -- double jeopardy claim. If such a claim is sufficient to sustain a trial-delaying appeal, the door is open for the dilatory use of virtually any double jeopardy claim that a defendant's or his attorney's imagination can construct.

There is even less reason to extend the Lansdown rule to speedy trial claims. Like the defendant in Parr, an accused appealing the pretrial denial of a speedy trial claim seeks "review before he ha[s] undergone the burden of a single trial." See Lansdown, 460 F.2d at 171, n. 7. Unlike the double jeopardy clause, which in terms forbids trial in violation of its provisions,^[7] the speedy trial provision reads merely that an accused "shall enjoy the right to a speedy * * * trial" but does not forbid trial if prosecution is delayed. Compare Moore v. DeYoung, 515 F.2d 437, 446-447 (3d Cir. 1975) with United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034, 1037-1038 (3d Cir. 1975). Since, however, the panel held that the speedy trial right "is a fundamental constitutional right" (slip opinion at 4) which would be "irreparably lost" if review were postponed until after trial (slip opinion at 2, n. 3), presumably it concluded that a bar to trial in the case of unreasonably delay is a necessary implication of the provision, and on that basis applied the Lansdown rationale that immediate appeal is necessitated to afford an accused the provision's "full protection."

The difficulty with this reasoning is that it has equal application to virtually every constitutional provision upon which a motion to dismiss an indictment might be based. Surely, for example, the necessary implication of the First Amendment is that it forbids not only convictions in violations of its terms but prosecutions as well; a defendant loses the "full protection" of the Amendment if he must await conviction to obtain appellate review of his contention that it affords protection to his conduct, since pending that review he will risk further prosecution by continuing to engage in the conduct. Moreover, there are constitutional provisions whose terms more clearly forbid trial than do those of the speedy trial provision. For example, the self-incrimination clause provides that no person "shall be compelled in any criminal case to be a witness against himself." An accused will have been so compelled if he is subjected to trial despite having been granted statutory immunity in exchange for prior testimony concerning the transactions upon which the indictment is based; the "full protection" of the self-incrimination clause would require that, contrary to Heike, he obtain pretrial appellate review of his claim that trial is barred by the immunity grant. Similarly, the grand jury clause provides that no person "shall be held to answer * * * unless on a presentment or indictment of a Grand Jury"; the "full protection" of that clause would therefore require pretrial appellate review of the denial of a motion to dismiss based on the claim (see Ex parte Bain, 121 U.S. 1 (1887]) that the indictment was materially amended by motion. Indeed, the "full protection" of the due process clause would require pretrial appellate review of the denial of any motion to dismiss an indictment. An accused is to some extent deprived of liberty and property not only by being subjected to trial (see Green v. United States, 355 U.S. 184, 187 (1957); United States v. Lansdown, supra, 460 F.2d at 171) but also by the mere pendency of an indictment (see United States v. Marion, supra, 404 U.S. at 320; Smith v. Hooey, 397 U.S. 374, 375 [1969]; Klopfer v. North Carolina, 386 U.S. 213, 221-222 (1967); if the indictment has, for example been returned by an unlawfully convened grand jury, charges as an offense conduct which is constitutionally protected or even merely fails to charge an offense, the deprivation is without due process. In our view, the underlying rationale of the Lansdown rule itself opens all of these claims to pretrial appellate review. Be that as it may, if the panel's expansion of the Lansdown rule to embrace speedy trial claims is allowed to stand, there can be no rational basis for withholding pretrial review from any of these claims.^[8]

In holding that appellant was deprived of his right to a speedy trial, the panel majority applied the Barker v. Wingo, 407 U.S. 514, 530 (1972) test of weighing the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant" (slip opinion at 11). Concluding that the charge brought against appellant by his commanding officer on May 1, 1970 was, because it subjected him to arrest or confinement, "the functional equivalent of a civilian arrest warrant" (id. at 13; see also id. at 17), the majority held (id. at 16; see also id. at 20) on the basis of United States v. Marion, supra, 404 U.S. at 320 that delay was to be computed from that date (slip opinion at 11-21). It concluded that two-and-one-half years' of that delay -- from June, 1972, when the Army Criminal Investigation Division assertedly recommended prosecution by the Department of Justice,^[9] until the return of an indictment in January 1975 -- was the result of either "indifference, negligence or ineptitude" which it held must be weighed against the government" (id. at 24). It found that appellant, by "consistently express[ing] a desire to have the case resolved," had "reasonably asserted his right to a speedy trial" (id. at 25). Finally, it found that appellant has been prejudiced by the delay both because he "has had to live with the constant threat of a new prosecution has been required to retain counsel at his own expense and has suffered anxiety concerning the unresolved nature of the case" (id. at 26) and because his ability to defend himself has been impaired (id. at 27). Weighing all of those factors, it concluded that appellant has been denied a speedy trial and that the indictment therefore must be dismissed (id. at 29).

The keystone of the majority's reasoning is its holding that delay must be computed from the time that Army charges were first brought against appellant. But as Judge Craven points out in dissent (slip opinion at 32-34), Marion has held that the protection of the Sixth Amendment "is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution." 404 U.S. at 313. We submit that the majority erred in holding that the bringing of Army charges in this case was "the functional equivalent of a civilian arrest,"^[10] and that in any event the delay of a civilian prosecution cannot properly be computed from the commencement of a military one.^[11] But even conceding these two points, we submit that the majority has seriously misconstrued Marion -- and as a consequence misapplied the "assertion of the right" and "prejudice" elements of the Barker test -- and that these errors warrant full court review.

A. In Marion, the Supreme Court, while reiterating its earlier holding in United States v. Ewell, 383 U.S. 116, 122 (1966) that "the applicable statute of limitations * * * is the primary guarantee against bringing overly stale criminal charges" (404 U.S. at 322), nevertheless held that invocation of the speedy trial provision "need not await indictment, information, or other formal charge" (id. at 321) but can be engaged by "the actual restraints imposed by arrest and holding to answer a criminal charge." Id. at 320. This is so, the Court explained, because "[a]rrest 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." Ibid; see also Dillingham v. United States, O.T. 1975, No. 74-6738, decided December 1, 1975.

Implicit in this holding, we submit, is the proposition that the accused's arrest status must be a continuous one -- i.e., that he remain under "the actual restraints" imposed by the arrest until such time as those restraints are succeeded by the restraints imposed by an indictment.^[12] As the Court explained in Marion in declining "to extend the reach of the amendment to the period prior to arrest," until arrest "a citizen suffers no restraints on his liberty and is not the subject of public accusation." 404 U.S. at 321. It is equally true that a citizen no longer suffers restraints on his liberty or is the subject of public accusation once he ceases to be held to answer a criminal charge.

In this case, if it is assumed that the bringing of charges against and the imposition of restrictions upon appellant by his commanding officer were "the functional equivalent of a civilian arrest," the logical concomitant is that the dismissal of those charges by his commanding general on October 23, 1970 after the Article 32 hearing (App. A7) was the functional equivalent of a dismissal of a civilian complaint by a prosecutor, a discharge by a commissioner after a preliminary examination held pursuant to Rule 5(c), F.R.Crim.P. or a no bill returned by a grand jury. It necessarily follows that at that point the delay "clock" ceased to run until it was activated again by the return of the grand jury indictment in January, 1975. Compare United States v. Flores, 501 F.2d 1356, 1359-1360 (2d Cir. 1974).

Once the charges were dismissed, appellant was no longer (until the grand jury returned its indictment) under either restraint or public accusation. Indeed, as the majority acknowledges (slip opinion at 7, n. 4), since the commanding general's action was followed within two months by appellant's honorable discharge from service, under Toth the Army at that point lost all authority to impose restraints upon him. To hold that nevertheless the speedy trial provision continued to be "engaged" would be to hold that a grand jury no bill, a discharge by a commissioner or the dismissal of a complaint by a prosecutor confers upon an accused (except, perhaps, in those rare cases where a prosecutor is subsequently able to obtain an indictment in short order) a vested right of repose -- that, in short, the "one bite of the apple" rule of the double jeopardy clause is not limited to the government's right to try an accused but extends to pretrial proceedings as well. A holding of such obviously mischievous nature finds no support in either law or logic. See Marion, 404 U.S. at 317.^[13]

B. The majority's error in holding that the delay "clock" continued to run despite the dismissal of the Army charges against appellant led it into a mistaken application of the "assertion of the right" and "prejudice" elements of the Barker test.

1. Had appellant been under civilian arrest prior to indictment, the remedy available to him to assert and vindicate his speedy trial right would have been clear; he could have moved under Rule 48(b), F.R.Crim.P. to dismiss the complaint on the ground that there had been "unneccessary delay in presenting the charge to a grand jury." See Marion, 404 U.S. at 319.^[14]

This procedure would have fully vindicated his rights, since grant of the motion would have freed him (until such time as the grand jury acted) from both public accusation and the restraints 6n his liberty resulting therefrom. Since he was not under arrest he of course could not make such a motion, but this proves only that in the absence of a continuing arrest he suffered no deprivation of Sixth Amendment rights.

Lacking a Rule 48(b) motion or the occasion where one might have been made, the majority held that appellant adequately asserted his speedy trial right by virtue of the fact that he had not "delayed the prosecution" and had "consistently expressed a desire to have the case resolved" (slip opinion at 25). The desire which he expressed, however, was merely to have the investigation terminate without indictment (see, e.g., slip opinion at 9, nn. 5, 6); he at no time asked to be indicted so that he might obtain a speedy opportunity to vindicate himself before a petit jury.

The majority, however, held that such a request was unnecessary. Relying upon United States v. Macino, 486 F.2d 750 (7th Cir. 1973) and Barker, 407 U.S. at 529, it ruled that appellant was "under no compulsion to demand prosecution in order to preserve his right to a speedy trial, for the primary responsibility for bringing cases to trial rests on the government" (slip opinion at 25). The reliance upon Barker is inapposite. While the Supreme Court stated in that case that courts and prosecutors have the "primary burden" of assuring that cases are brought to trial (407 U.S. at 529), at the same time it ruled that "a defendant has some re- sponsibility to assert a speedy trial claim" (ibid.) and "emphasize[d] that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Id. at 532. As for Macino, its refusal "to force a prospective criminal to seek his own prosecution" was based on recognition of "the fact that a person who has been arrested but not charged will always nourish the hope that the Government will decide not to prosecute." 486 F.2d at 753. It is equally true, however, that a person who has been indicted will always nourish the hope that the Government's evidence will grow stale and it will decide to dismiss the indict- ment. It is precisely because accused persons nourish such hopes that Barker made assertion of the right an element of the test for determining a Sixth Amendment violation. Indeed, the Court found that there was no Sixth Amendment violation in that case primarily because the defendant there, hoping that dismissal of the charges against him would result if a co-defendant who was being tried separately were acquitted, never objected to the state's motions for continuances. See 407 U.S. at 534-536. The equivalent of a, request for immediate trial by an indicted defendant as a satisfaction of the "assertion" element of Barker is a Rule 48(b) motion by an accused who has been arrested but not indicted. If, as in this case, the arrest has already terminated, the equivalent of the immediate trial request must necessarily be (if it is assumed that a Sixth Amendment situation can still exist after the termination of the arrest) a request for immediate indictment so that an immediate trial can follow. The majority, we submit, erroneously interpreted Barker by holding that such a request is unnecessary and that a mere effort to persuade the government to terminate the matter by not indicting is sufficient to satisfy the "assertion" element.

2. The majority held that delay had prejudiced appellant in two respects. First, in reliance upon Marion, 404 U.S. at 320, it found that his "personal concerns" -- the "constant threat of a new prosecution," the requirement that he retain counsel at his own expense, and the anxiety which he suffered from the unresolved nature of the case -- were "significant elements of prejudice" (slip opinion at 26). Secondly, it held "not unfounded" appellant's claim that his ability to defend himself had been impaired (id. at 27).

The majority's invocation of appellant's personal concerns as an element of prejudice is a direct concomitant to its erroneous conclusion that the delay "clock" continued to run despite the dismissal of the Army charges against him, and falls along with that conclusion. Any individual who, although not yet arrested, knows that he is the subject of a serious and lengthy criminal investigation will have the same personal concerns -- the same anxiety, the same necessity of living with the constant threat that the investigation will eventuate in a prosecution, the same impetus to undertake the expense of retaining counsel. Compare Marion, 404 U.S. at 331 (dissenting opinion). The Court's opinion in Marion, however, has made it clear that it is only when those concerns are engendered by a formal public accusation -- i.e., an arrest, indictment or information -- that they become relevant considerations for determining the existence of a Sixth Amendment violation. See 404 U.S. at 320-321. As we have shown (supra, p. 18), if "prior to arrest" an individual is "not the subject of public accusation" (404 U.S. at 321), he ceases to be the subject of such an accusation once he obtains vindication by termination of the arrest. At that point, even though the investigation continues, he is back in the same position as an investigatee who has not been arrested. It follows that, while his personal concerns may continue, they are no longer relevant considerations for assessing a speedy trial violation.

Marion also makes it clear that appellant's allegations of an impaired ability to defend himself are not sufficient to establish a violation of his speedy trial right. As the majority here sums these allegations up, they are that "interviewing (potential defense] witnesses before trial and insuring their presence at trial would be time-consuming and expensive" and "in the five years since the murders, memories have faded and witnesses can no longer be expected to reliably recall details" (slip opinion at 27). The first allegation, however, which concerns a situation common to many cases with complicated factual issues and not at all peculiar to cases in which delay is involved, is hardly a valid reason to immunize a defendant from trial. The second allegation does not consist of a demonstration either that actual trial prejudice will necessarily occur or that the possibility that trial prejudice may have occurred cannot be discounted (the latter demonstration being impossible to make at the pretrial stage of proceedings). Rather, it consists merely of an invocation of potential prejudice.^[15] Since, as we have shown, the time span between the dismissal of Army charges and the return of the grand jury indictment constitutes noncognizable delay under Marion, the allegation is answered by the holding of that case that the mere" possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context." 404 U.S. at 322. As Marion went on to explain, "the applicable statute of limitations * * * is * * * the primary guarantee against bringing overly stale criminal charges" (ibid.), and as a result "[t]here is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function." Id. at 323. Since appellant has not established Sixth Amendment cognizable delay, his claim of trial prejudice must be based upon the due process clause of the Fifth Amendment. To sustain such a claim, he must show -- as he has not even attempted to do -- both "substantial prejudice" to his rights to a fair trial and a delay that was "an intentional device to gain tactical advantage" over him; he must, moreover, make this showing "at trial" and not, as here, prior thereto. Id. at 324.

For the foregoing reasons, it is respectfully submitted that the Court should rehear this case en banc and dismiss the appeal or, in the alternative, affirm the judgment of the district court.

THOMAS P. MCNAMARA,
United States Attorney,

JAMES T. STROUD, JR.,
Assistant United States Attorney,

VICTOR C. WOERHEIDE,
BRIAN M. MURTAGH,
MARSHALL TAMOR GOLDING,
Attorneys,
United States Department of Justice.

I hereby certify that two copies of this petition and the appendix thereto have been served by prepaid mail upon Bernard L. Segal, Esquire and Orrin Leigh Grover III, Esquire, Suite 220, 536 Mission Street, San Francisco, California 94105, Robert H. Hood III, Esquire, NML Building, Suite 202, 123 West Franklin, Chapel Hill, North Carolina 27514, and Kenneth A. Letzler, 1229 Nineteenth Street, N.W., Washington, D.C. 20036, attorneys for appellant.


March 12, 1976


Marshall Tamor Golding,
Attorney