US SUPREME COURT DECISIONS

Respondents were arrested and indicted in November, 1975, on counts of possessing firearms and dynamite. In March, 1976, the Federal District Court granted respondents' motion to suppress evidence relating to the dynamite counts, and the Government promptly filed a notice of appeal and requested a continuance. The District Court denied this request and, when the Government answered "not ready" after the case was called for trial, dismissed the indictment. The Government appealed this dismissal, and the two appeals were consolidated. In August, 1979, the Court of Appeals reversed the suppression order, ordered that the dynamite counts be reinstated, and held that the District Court erred in dismissing the firearms counts. In November, 1979, respondents filed a petition for certiorari, which this Court denied. The Court of Appeals' mandate issued in March, 1980, 46 months after the Government filed its notice of appeal from the dismissal of the indictment, during which time respondents were unconditionally released. On remand, the District Court ordered the Government to reindict on the firearms charges. In August, 1980, the District Court granted a motion to dismiss on the ground of vindictive prosecution as to one respondent, but denied it as to the other respondents, and both the Government and these respondents appealed. During these appeals, respondents remained free on their own recognizance. In July, 1982, the Court of Appeals reversed the dismissal as to the one respondent and dismissed the appeals of the other respondents, and in October, 1982, denied respondents' petitions for a rehearing. Respondents then filed a petition for certiorari, which this Court denied. The Court of Appeals' mandate issued in January, 1983. In May, 1983, the District Court again dismissed the indictment, ruling that respondents' Sixth Amendment right to a speedy trial had been violated. The Court of Appeals affirmed.

Held:

1. The time during which the indictment was dismissed and respondents were free of all restrictions on their liberty should be excluded from the length of delay considered under the Speedy Trial Clause of the Sixth Amendment. United States v. MacDonald, 456 U. S. 1. Pp. 474 U. S. 310-312.

(a) Where no indictment is outstanding, it is only the actual restraints imposed by arrest and holding to answer a criminal charge that engages the protection of the Speedy Trial Clause. Here, respondents chanrobles.com-red

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were not incarcerated and were not subject to bail, and further judicial proceedings would have been necessary to subject them to any actual restraints. Pp. 474 U. S. 310-311.

(b) The fact that the Government's desire to prosecute respondents was a matter of public record was insufficient to count the time in question toward a speedy trial claim. Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal constitute the sort of "actual restraint" required for application of the Speedy Trial Clause. And respondents' necessity to obtain counsel while their case was technically dismissed was not sufficient to trigger that Clause. Pp. 474 U. S. 311-312.

2. The delay attributable to the interlocutory appeals does not weigh effectively towards respondents' claim under the Speedy Trial Clause. Under the balancing test of Barker v. Wingo, 407 U. S. 514, courts must accommodate the competing concerns of orderly appellate review and a speedy trial. Pp. 474 U. S. 312-317.

(a) Three of the factors under Barker -- the length of delay, the extent to which respondents have asserted their speedy trial rights, and the prejudice to respondents -- fail to support a finding of a violation of the Speedy Trial Clause. Pp. 474 U. S. 314-315.

(b) The remaining Barker factor, the reason for the delay, also fails to carry respondents' claims. The Government's first interlocutory appeal was justified where the Government could not have otherwise presented the issue relating to exclusion of the evidence on the dynamite counts, and the Government's appeal on this issue was strong. Similarly, the Government's second interlocutory appeal was justified because the Government could not have otherwise proceeded against the one respondent against whom the indictment was dismissed, and here too the Government's position was strong. Pp. 474 U. S. 315-316.

(c) The delay from respondents' interlocutory appeals does not count toward their speedy trial claims. A defendant bears the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal or a wholly unjustified delay by the appellate court. Pp. 474 U. S. 316-317.

3. On the facts, the delays in question were not sufficiently long to justify dismissal of the case against respondents because of an alleged violation of the Speedy Trial Clause. P. 474 U. S. 317.

741 F.2d 1184, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J.,and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 474 U. S. 317. chanrobles.com-red

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