404 U.S. 307 (1971)
Appellees Marion and Baxter operated Allied Enterprises, Inc., a business engaged in selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems in the District of Columbia metropolitan area.1 They were indicted on April 21, 1970, and charged in nineteen counts with offenses committed between March 15, 1965, and February 6, 1967, involving alleged misrepresentations, alterations of documents, and deliberate nonperformance of contracts.2
Allied Enterprises had been subject to a Federal Trade Commission cease-and-desist order on February 6, 1967.3 In October 1967 a series of articles appeared in the Washington Post reporting the results of that newspaper's investigation of practices employed by home improvement firms such as Allied and predicting that indictments would soon be forthcoming.4
In the summer of 1968, at the request of the United States Attorney's office, Allied delivered its business records to that office, and appellee Marion was interviewed there about his conduct as an officer of the company.5 The grand jury that indicted appellees was not impaneled until September 1969, appellees were not informed of the grand jury's concern with them until March 1970, and the indictment was finally handed down in April 1970.6
On May 5, 1970, appellees moved to dismiss the indictment for failure to commence prosecution within time to afford due process and speedy trial rights.7 No evidence was submitted at the hearing on the motion, and no specific prejudice was claimed or demonstrated.8 The District Court granted the motion on June 8, 1970, for lack of speedy prosecution.9 The United States appealed directly to this Court pursuant to 18 U.S.C. § 3731.10
Whether the Sixth Amendment speedy trial provision applies to delay occurring before a person is formally accused by indictment, information, or arrest?11
No. The appellees were not arrested, charged, or otherwise subjected to the restraints of an actual or threatened criminal prosecution until the indictment was returned on April 21, 1970.14 Therefore, the pre-indictment delay did not engage the protections of the Sixth Amendment speedy trial provision under the facts of this case.15
The Sixth Amendment speedy trial provision does not apply to pre-accusation delay.16
Related opinions on this issue
Joined by Mr. Justice Brennan And Mr. Justice Marshall
Justice Douglas concurred in the result.17 He assumed that if the three-year delay had occurred after the indictment, the right to a speedy trial would have been impaired.18 He disagreed with the Court that the guarantee does not apply if the delay was at the pre-indictment stage of a case.19
He argued that the right to a speedy trial is the right to be brought to trial speedily.20 This right would seem to be as relevant to pre-indictment delays as it is to post-indictment delays.21 The duty which the Sixth Amendment places on Government officials to proceed expeditiously with criminal prosecutions would have little meaning if those officials could determine when that duty was to commence.22 On the bare bones of this record, however, he hesitated to say that the guarantee had been violated unless actual prejudice was demonstrated on remand.23
Whether the Due Process Clause of the Fifth Amendment requires dismissal of an indictment on the ground of delay between the alleged commission of offenses and the return of the indictment?24
The statute of limitations is the primary guarantee against bringing overly stale criminal charges.25 The Due Process Clause has a limited role to play in protecting against oppressive delay.26 The Due Process Clause would require dismissal of an indictment if the delay was the result of deliberate action by the Government designed to prejudice the defendant.27 It would also require dismissal if the delay caused substantial prejudice to the defendant's ability to present an effective defense.28
No. The appellees have not shown that the pre-indictment delay in this case caused substantial prejudice to their rights to a fair trial.29 The delay was not an intentional device by the Government to gain tactical advantage over the accused.30 The facts show that the delay was within the statute of limitations and no actual prejudice was alleged or proved by Marion and Baxter.31
The Due Process Clause does not require dismissal of the indictment in this case.32
Related opinions on this issue
Justice Brennan concurred in the result.33 He agreed that the appellees have not shown that the pre-indictment delay in this case caused substantial prejudice to their rights to a fair trial.34 He also agreed that the statute of limitations is the primary guarantee against bringing overly stale criminal charges.35
However, he would not foreclose the possibility that in some cases the Due Process Clause might require dismissal of an indictment because of delay between the commission of an alleged offense and the initiation of prosecution even though the statute of limitations has not run.36 In his view, the Due Process Clause would require dismissal of an indictment if the delay was the result of deliberate action by the Government designed to prejudice the defendant or if the delay caused substantial prejudice to the defendant's ability to present an effective defense.37
Whether the Supreme Court had jurisdiction under 18 U.S.C. § 3731 to entertain the government's direct appeal from a district court order dismissing an indictment for pre-indictment delay?38
Prior to its recent amendment, 18 U.S.C. § 3731 (1964 ed., Supp. V) authorized an appeal to this Court by the United States when in any criminal case a district court sustained a motion in bar, when the defendant has not been put in jeopardy.39 The motion to dismiss rested on constitutional grounds exclusively and was a plea in the nature of confession and avoidance.40
Yes. The District Court's dismissal of the indictment was a ruling on a motion in bar because the appellees had not been placed in jeopardy when the District Court rendered its judgment.41 The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling.42 The motion rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance.
The Supreme Court had jurisdiction under 18 U.S.C. § 3731 to entertain the government's direct appeal.43