United States v. Ronald W. Brown

520 F.2d 1106, 172 U.S. App. D.C. 92

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 10, 1975
• Docket: 73-1826
• Status: Published

Opinions

FAHY, Senior Circuit Judge:

This appeal is from convictions of several related offenses under the narcotics laws.¹ Appellant was arrested March 25, 1969, on a warrant charging first degree murder. The principal evidence in support of the narcotics charges was obtained from a search of an apartment in an attempt to serve the arrest warrant a short time before the arrest was actually made. Appellant was not indicted on the narcotics charges until September 29, 1969, while in custody following the arrest. A superseding indictment was returned February 6, 1970, in which seven additional persons were charged with appellant for violation of those laws.² His trial on this indictment was not held until May, 1973, more than 4 years after the arrest. In the meantime .the cases of the co-defendants had been disposed of, in three instances by dismissal of the indictment as to them for lack of a speedy trial.

Appellant’s contentions are that the search referred to was unlawful, with the consequence that important evidence used to convict him was inadmissible, and, secondly, that he too was denied his right to a speedy trial.³ We sustain the latter contention, and accordingly need not discuss the former.⁴

I

In computing the time lag before trial we think the starting point is the date of the arrest on the warrant charging murder, March 25, 1969, for it was in attempting to execute that warrant that the principal basis for indictment on the present charges was laid.⁵ Several circumstances unavoidably contributed to the unusual delay. These include the preparation and trial of the murder case, an appeal from his conviction of second degree murder in that case, reversed by this court, an interlocutory appeal by the United States from an order of the District Court suppressing evidence in the present case, also reversed, and time devoted to determination of appellant’s mental responsibility, which led to a bifurcated trial of that question as it affected the homicide case.

Notwithstanding delays incident to the history of the proceedings, we find that as the years passed time was available for trial of this case. Though well utilized no doubt for other purposes the total time became so extended as to lead, in the circumstances to be reviewed, to denial of the constitutional right. Even unavoidable delay is not to be disregarded, though the reasons for it bear upon its weight in balancing the factors to be considered in deciding the issue. Among those factors is the special obligation of the United States to press the ease to trial as the period of unavoidable delay mounts.

II

We now outline the course of the proceedings.

The first phase of the homicide trial was promptly held following the arrest March 25, 1969. A verdict of guilty of second degree murder was rendered October 24, 1969. Before sentence, however, appellant on November 12, 1969, was committed on his motion to St. Elizabeths Hospital for mental examination. The hospital reported on April 8, 1970, that he was competent.⁶ On May 25, 1970, however, the court, while finding him competent to stand trial, was not satisfied as to appellant’s mental condition and ordered a bifurcated trial to determine the matter. This second phase of the trial for murder was not held for sixteen months after it was ordered. On the 22nd of September, 1971, it resulted in a finding that appellant was responsible. The murder conviction then became final. Appellant appealed and this court reversed⁷ about 27 months later. The case was returned to the District Court in January, 1974, for a new trial.⁸

From September 22, 1971, when the bifurcated trial was concluded, to May 24, 1973, when the present charges were tried, 20 months elapsed. During 7 of these months, from all that appears from the record, this case could have been tried. We reach this conclusion as follows: In June, 1970, appellant moved to suppress evidence.⁹ *His motion was acted upon April 12, 1971, when it was granted.¹⁰ The United States appealed and this court reversed the suppression order September 13, 1972,¹¹ and denied rehearing October 12, 1972. As we have seen the appeal in the homicide case was then pending, and so continued well beyond the date of trial of the present case in May, 1973, seven months after termination of the litigation over the suppression order and 20 months after termination of the bifurcated trial. The case had already been pending more than 3 years when in October, 1972, the reversal of the suppression order became final, even if the time lag is considered to have begun as late as the return of the indictment in September, 1969.

The failure to bring the case to trial during the 7 months from October 12, 1972, to May, 1973, after so long a previous delay, is by no means the only reason for our concern. This apparently open period would have been substantially enlarged except for previous significant delays. Thus, appellant’s motion to suppress evidence, argued first in June, 1970, was not acted upon until April 12, 1971, ten months later, when it was granted, leading then to the interlocutory appeal. That appeal no doubt would have been terminated prior to October 12, 1972, had the motion to suppress been more promptly decided, which would have significantly enlarged the open period of seven months to which we have referred. Moreover, as we have shown, the total time consumed in reaching a final disposition of the motion to suppress was 2 years and 4 months, ranging from June, 1970 to October 12, 1972, The narcotics case had then been pending 3 years and 1 month from the date of the indictment in September, 1969, and 3 years and 7 months from the date of the search and arrest March 25, 1969. The period thus consumed is excessive considered alone, aside from its contraction of the period of free time which otherwise would have been available to try this case during the pendency of the appeal in the homicide case.

Promptly after appellant lost the favorable decision of the District Court suppressing evidence, he moved on October 31, 1972, for dismissal of the indictment for want of a speedy trial, urging prejudice in having to proceed, for “having been in jail [he] has lost contact of some or all of his potential witnesses; some . . . are no longer in this jurisdiction or have passed away during the delay of the last four years.” The motion appears not to have been heard until May 9, 1973. On that date counsel again argued, inter alia, that after “four years” there was “absolutely no way, Your Honor, that I can possibly have any kind of a defense, any witnesses as far as protecting the rights of my client.” He named two witnesses who had once been but now were no longer available to testify, a man nicknamed “Little George” who had since died, and Nadine Frazier, the woman whose apartment was searched on the date of appellant’s arrest in March, 1969.¹²

Counsel also pointed out that the court had already dismissed for want of a speedy trial the indictment against three co-defendants included in the superseding indictment of February 6, 1970, upon which appellant was to be tried. The court, in denying appellant’s motion, pointed to the difference in appellant’s case from the others, due to the fact that the murder case was also to be disposed of. The judge stated that the Court of Appeals would not have permitted him to have allowed the prosecutor to harass counsel for defendant by forcing this case to trial, presumably while the murder case was pending. But, as we have seen, the bifurcated trial of the murder case had been concluded September 21, 1971, and this motion to dismiss was being argued May 9, 1973, nineteen months later.

Ill

As we analyze the rather complicated proceedings, the period of approximately four years is attributable primarily to the operation of the system. Although differences of opinion may be justified as to whether any substantial part of the delay should be placed at the door of appellant, we think very little can be placed there. The time devoted to observation and examination of appellant’s mental condition, not a great deal compared with the total, was due to the operation of the system rather than to any “fault” of appellant. So too the period consumed by the interlocutory appeal.¹³ Indeed, we find no evidence of intentional delays on the part of either the prosecution or the appellant. Yet we think that upon consideration in more detail of the relevant factors the United States failed to meet its obligation to encompass all the proceedings within a pretrial span of substantially shorter duration than four years.

IV

The four principal factors to be balanced, as enumerated in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), are (1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. We note preliminarily, however, that these four factors are to be considered in light of certain general principles:

A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest. [Tjhe rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. (Footnotes omitted.)

Id. at 527 and 529, 92 S.Ct. at 2190.

The right to a speedy trial is “one of the most basic rights preserved by our Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).

[T]he longer the time between arrest and trial, the heavier the burden of the Government in arguing that the right to a speedy trial has not been abridged.

* * * * * *

The passing of . . .a considerable length of time, no matter who is “at fault,” should act as a spur to the Government to seek prompt trial.

Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687-88 (1966). Though the circumstances in Hedgepeth were held not to violate the right to a speedy trial, the court there repeated that a claim of its denial has prima facie merit when more than a year elapses between arrest and trial. See to that effect, United States v. West, 164 U.S.App.D.C. 184, 186, 504 F.2d 253, 255 (1974); United States v. Calloway, 164 U.S.App.D.C. 204, 505 F.2d 311 (1974), and cases there cited.

. in Barker v. Wingo, supra, the Supreme Court said that in weighing delay in trial, overcrowded Courts should be weighed less heavily (than Government’s deliberate attempt to delay) “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”

United States v. Perry, 353 F.Supp. 1235, 1238 (D.D.C.1973).

While the Court in Barker v. Wingo, supra 407 U.S. at 523, 92 S.Ct. at 2188, stated that it found “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months”, it noted in passing the following developments in that regard:

The United States Court of Appeals for the Second Circuit has promulgated rules for the district courts in that Circuit establishing that the government must be ready for trial within six months of the date of arrest, except in unusual circumstances, or the charge will be dismissed.¹⁸ This type of rule is also recommended by the American Bar Association.¹⁹

Id.

In United States v. Marion, 404 U.S. 307, 312 n. 4, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971), the Court also had noted that Federal Rule of Criminal Procedure 48(b) authorizes dismissal of an indictment, information, or complaint “[i]f there is unnecessary delay . in bringing a defendant to trial . .

Turning now to the balancing process to be engaged in, the first factor stressed in Barker v. Wingo, supra, the length of the delay, weighs in favor of appellant’s claim, for the over-all delay was inordinate. Passing over momentarily the second factor, the reason for the delay, we consider the third, the assertion of the right. This too weighs in appellant’s favor. Nothing indicates any desire on his part to delay the trial.¹⁴ He first moved May 18, 1971, that the indictment be dismissed for lack of a speedy trial, complaining of the delay of the United States in appealing from the suppression order. Appellant again moved to dismiss for lack of a speedy trial October 31, 1972, and brought the matter up again May 9, 1973, citing, inter alia, United States v. Perry, supra.

The second factor concerns the reason for the delay. Our outline of the proceedings has indicated the principal reasons for the delay of approximately four years, other than those which do not appear in the record of this case. We have pointed to the seven-months open period from October, 1972 to May, 1973, and to the fact that it would have been substantially enlarged except for the periods which elapsed before the motion to suppress was acted upon and finally disposed of, a total period of 2 years and 4 months. We have difficulty in finding that any significant part of the inordinately long lapse of time between arrest- — or indictment — and trial, can be charged to appellant.

We come then to the fourth factor, that of prejudice to the defendant. His prejudice of a personal character is clear. This kind of prejudice, though not the same as that caused by the death of a witness or other loss of evidence, which may include loss of the memories of witnesses, is firmly established as important.

In United States v. Marion, supra 404 U.S. at 320, 92 S.Ct. at 463, the Court stated:

the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense.

Moreover, it occurs independently of incarceration, though it is aggravated thereby. In that regard the Court in Marion stated:

Arrest 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.

Id. In Barker v. Wingo, supra, Mr. Justice Powell stated for the Court:

. even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.

407 U.S. at 533, 92 S.Ct. at 2193. In the earlier case of United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966), one of the elements of the constitutional guarantee is stated to be “to minimize anxiety and concern accompanying public accusation.” See, Klopfer v. North Carolina, supra, and also, Smith v. Hooey, supra, where the Court stated:

. this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: “[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627. (Footnote omitted.)

393 U.S. at 377-78, 89 S.Ct. at 577.

This court has adverted to the matter as follows:

. these provisions [those of the Constitution and Rule 48(b) F.R. Crim.P.] seek to minimize the anxiety and attendant evils which are invariably visited upon one under public accusation but not tried. (Footnote omitted.)

Hanrahan v. United States, 121 U.S.App.D.C. 134, 348 F.2d 363, 367 (1965).

Though we cannot measure in an accurate manner the degree of personal prejudice to appellant, we cannot ignore it; and it was aggravated by appellant’s incarceration, though that was due to the murder case as well. This aggravation is clear from Smith v. Hooey, supra. There Smith, while a prisoner in a federal penitentiary, was indicted by the State of Texas for a state offense. For six years he vainly sought a trial by Texas. The Texas court deemed itself to be without power to act to bring him to trial on the state charge because he was held by a different sovereign, stating, “ ‘[t]he true test should be the power and authority of the state unaided by any waiver, permission or act of grace’ ” of any other authority. 393 U.S. at 377, 89 S.Ct. at 576. The Supreme Court held, however, that the petition of Smith to require the State by mandamus to make a diligent, good faith effort to bring him to trial on the state charge should be granted. The Court stated:

At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from “undue and oppressive incarceration prior to trial.” But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pend-ency of another criminal charge outstanding against him.

And while it might be argued that a person already in prison would be less likely than others to be affected by “anxiety and concern accompanying public accusation,” there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, 386 U.S. at 221-222, 87 S.Ct. [988] at 992-999. In the opinion of the former Director of the Federal Bureau of Prisons,

“[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.”

And, while “evidence and witnesses disappear, memories fade, and events lose their perspective,” a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time. (Footnotes omitted.)

Id. 398 U.S. at 378-80, 89 S.Ct. at 577.

We do not ignore but neither do we emphasize appellant’s claim of prejudice due to his inability to defend against the narcotics charges as urged by his counsel in the trial court. He did not testify and called no witnesses in the two-day trial. Perhaps a court would be justified in assuming some prejudice to an accused’s defense due to such a delay, accompanied by incarceration, but we do not make such an assumption in this case. The factor of prejudice, however, does weigh in favor of appellant’s claim of denial of a speedy trial, because of the personal prejudice of which the Supreme Court has spoken in the cases to which we have referred.

Y

As we have seen, the period during which the case was pending before trial was substantially entangled with the homicide case involving appellant. Unavoidable difficulties confronted the trial court in bringing the narcotics case to trial. Moreover, even during what we refer to as an open period, when it appears the case could have been tried, and which we think could have been expanded as has been explained, we know the trial court was well occupied in other respects. There was a heavy case load of which this case was but a part. We would not be justified in implying criticism of the trial court or the prosecution; we cannot reconstruct the overall situation, or isolate any delays as due to neglect or design on the part of those responsible for bringing the case to trial. Yet the burden of responsibility was not met in the particular case, with the consequence that, in balancing the relevant factors to be considered, we conclude the constitutional right requires enforcement by dismissal of the indictment.¹⁵

It is so ordered. 16

1 . 26 U.S.C. § 4704(a) and 21 U.S.C. § 174.

2 . The February 6 indictment charged appellant and seven others with violations of 26 U.S.C. §§ 4704(a), 4705(a), 7237(b) and 21 U.S.C. § 174.

3 . “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . ..” U.S.Const. Amend. VI.

4 . As to the validity of the search, however, see, United States v. Brown, 151 U.S.App.D.C. 365, 467 F.2d 419 (1972).

5 . Our decision would be the same were the starting point to be taken as the date of the indictment of September 29, 1969.

6 . This report obviously was limited to competency to be sentenced or for trial. It did not solve the problem of his mental responsibility for crime.

7 . United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1973).

8 . After the reversal appellant was permitted to plead guilty to manslaughter and on June 6, 1974, was sentenced to two to ten years, with credit for time served from March 25, 1969.

9 . The government states in its brief that on March 25, 1971, appellant’s motion to suppress was heard and that “[sjlightly less than three weeks later the trial court granted his motion.” (p. 8). The docket entries, however, show that a motion to suppress the evidence seized from the apartment was argued before the District Court June 17-19, 1970. The government submitted a brief on July 2, 1970 (Docket Entry 34) stating that it was in opposition to the motion to suppress evidence “SEIZED AT 1239 VERMONT AVE., N. W„ APT. NO. 907”, which is the place where the attempt to serve the arrest warrant occurred. Apparently the motion was argued again March 25, 1971, about 3 weeks prior to its grant by the court.

10 . The District Court’s order granting the suppression came down May 12, 1971.

11 . A certified copy of the judgment of this court did not reach the District Court until November 9, 1972.

12 . Nadine Frazier appeared as a government witness at the trial.

13 . We note, however, that since that appeal this court has made a salutary rule looking toward expedition of interlocutory appeals, including a provision that “The Clerk shall schedule the case for argument promptly after the briefs are filed.” Amendment to Rule 7, General Rules of the United States Court of Appeals for the District of Columbia Circuit ((c)(l)(iv)>.

18 Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (1971).

19 [Omitted.]

14 . In Barker v. Wingo, supra, the Court excused a delay of over five years in a brutal murder case because of the absence of significant prejudice, and, importantly, because the accused did not want an earlier trial for tactical defense reasons.

15 . We deem it of some importance in reaching our decision that the District Court, in line with a general trend in the judiciary to make the right to a speedy trial more effective, notwithstanding its elusiveness, has promulgated for its own guidance a rule which includes the following:

All indictments returned shall be tried within 180 days from return of indictment if the defendant is on bond. . . . The United States or the defendant may, for good cause shown, petition the judge to whom the case is assigned to extend the time period applicable to the particular case. In exceptional cases the court may, sua sponte, order an extension.

Rule 2 — 7(d)(1).

16 . The following comments are addressed to Judge MacKinnon’s Statement:

The Statement says, and repeats, that Brown’s counsel did not claim prejudice. However, he sought dismissal of the indictment at the hands of the District Court for lack of a speedy trial, and urged in this court reversal because of the denial of a speedy trial. Thus it became necessary for this court to consider the question of prejudice as appellant’s brief explicitly stated.

The Statement then designates by numbers a summary of criticisms of the court’s opinion. In commenting upon these criticisms I do so in the same numbered order as the summary.

1. The reference to the failure of the opinion to discover or consider the pendency of a third major indictment fails to indicate anything of significance to the issue of a speedy trial in this case. And see footnote 2 of Judge McGowan’s concurring opinion.

2. The objection to the opinion’s “open period” aspect of the case will be considered infra with other criticisms of that part of the court’s opinion.

3. Contrary to the conclusion the Statement draws, there is nothing in the record respecting a request by Brown’s counsel that the trial judge defer trial of this case because of counsel’s responsibility to argue the appeal in the murder case. The trial judge’s statement to Brown’s counsel, quoted in the Statement as though it indicated such a request, is silent as to the argument of the appeal. Nowhere in the record of the hearing on May 9, 1973, referred to in the Statement, is there mention of delaying or deferring this case on account of counsel’s need to prepare for the appeal in the murder case. See, infra, the discussion of the argument of the appeal in that case as it bears upon the “open period” during which it occurred.

4. Comments upon this objection are also deferred to consideration of the “open period” phase of the opinion, infra.

5. The Statement is mistaken in suggesting that the opinion fails to recognize the periods involved in the “trial” to determine appellant’s sanity as that phase of the proceeding might bear upon the issue of a speedy trial. The opinion correctly states the facts in that regard and reaches its conclusion with due regard to those facts. And see footnote 2 of Judge McGowan’s concurring opinion.

6. Assuming, as the Statement says, that appellant was given the choice of having this case tried immediately with his murder case, but elected to have this case delayed, the facts are that the murder case was fairly promptly tried, in October 1969, while this case was not tried until May 23, 1973, 4 years and 2 months after the arrest and 3 years and 8 months after the indictment. Several times after the murder case had been tried appellant’s counsel moved to dismiss this case because of the delay.

7. As stated above, the issue of prejudice was ex necessitate rei considered by the court in response to the issue of a speedy trial raised by Brown’s counsel. See, also, Judge McGowan’s discussion of certain specific claims of prejudice by Brown’s counsel.

We turn now to the several related portions of the Statement respecting the “open period”, including paragraphs numbered 2 and 4 of the summary, noted above as deferred for comment. The Statement strongly challenges the court’s position that from what appears on the record this case could have been tried during that period. The Statement contends it could not have been tried then because the appellate argument in the murder case was set for the middle of the period. The facts are as follows: Brown’s counsel had filed his brief on the appeal August 2, 1972. The “open period" began October 12, 1972 (or a month later if it should be thought to have begun when the mandate issued on the appeal from the suppression order). Appellant’s brief accordingly was filed two or three months before the open period began. The appeal was argued February 22, 1973, after the open period had been running more than three or four months, depending upon when one considers it to have begun. When this case was tried May 23-24, 1973, the defense placed no witnesses on the stand, and the trial consumed one and a half days of trial time, some 5-6 hours altogether. Obviously this case could have been tried during the open period without unfairness to Brown’s counsel notwithstanding he needed to prepare for a half hour or so argument of the appeal between August 2, 1972 and February 22, 1973.

Notwithstanding other objections of the Statement to the open period phase of the court’s opinion, which are not in all respects without substance, we remain unconvinced, especially in light of the excessive delays which had already occurred when this period began, after the controversy over the validity of the suppression order had ended.

Any,doubts created by the challenge of the Statement to the court’s treatment of the open period are removed by the court’s treatment of the case as a whole on the issue of a speedy trial. The, Statement is mistaken when it insists that the court’s position is that the narcotics case “must be reversed and the indictment dismissed because appellant was not brought to trial during the open period of ‘seven months’ (Initial Opinion, p. 6) beginning on October 12, 1972 and running through to May 23, 1973.” The Statement mistakenly states the position of this court. So, too, does the Statement as it continues: “This is the critical period since the opinion pointed to no other specific period of allegedly unnecessary delay. * * * It is thus the ruling with respect to this seven-month period, which the court in effect states controls its disposition of this case, that must be examined to see if the Government was delinquent in not bringing Brown to trial earlier in this period. ” (Emphasis in Statement.)

The answer to this position of the Statement — that the open period of seven (six) months was the all-in-all basis for the decision that a speedy trial had been denied — is contained in the text of the opinion. Immediately following its consideration of the open period, the opinion states:

The failure to bring the case to trial during the 7 months from October 12, 1972, to May, 1973, after so long a previous delay, is by no means the only reason for our concern.

We then proceed to consider previous significant delays but for which the apparently open period “would have been substantially enlarged.” The importance of the ensuing analysis of the progress of the case is fully developed by Judge McGowan’s concurring opinion, which demonstrates the soundness of the conclusion that appellant was denied a speedy trial.

Not among the numbered objections stated in summary form, but in the body of the Statement, it is said that the court’s opinion improperly seeks to extend the period for which the Government must account on the speedy trial claim to include time "after the date the case was tried,” and “This approach is beyond belief.” The Statement is again mistaken. The opinion contains a narrative reference to the total time the appeal pended in the murder case, but no time calculation in the court’s disposition of the speedy trial issue includes any time subsequent to the trial of this case on May 23, 24, 1973.

Society’s interest in a speedy trial, given constitutional status by the Sixth Amendment, has recently led to the Speedy Trial Act of 1974 (Public Law No. 93-619), effective July 1, 1975, which is mentioned in the Statement. The Act is designed “to assure a speedy trial.” 18 U.S.C. § 3161 et seq. This Act contains time periods of limited duration within which proceedings in criminal cases are to take place. Such a period is prescribed, for example, within which trial is to occur subsequent to arraignment. To enable the District Court to comply with the limited periods prescribed, delay necessarily encountered by, for example, an interlocutory appeal, is excluded. The trial of the case before us, however, was concluded in the District Court long before the inauguration of this legislative effort to help solve the speedy trial problem. Our decision accordingly rests upon the Constitution, and since the Constitution contains no time tables such as appear in the Speedy Trial Act of 1974, it does not require the court to disregard any specific delay except as it should rationally be appraised as not fairly to be weighed in support of the claim of denial of this “fundamental” yet “more vague concept than other procedural rights.” Barker v. Wingo, supra, 407 U.S. at 515, 521, 92 S.Ct. at 2187.

1. Suppression was sought on the ground that the police had illegally entered the apartment in which they found the evidence of narcotics violations. The defendants’ initial supporting memorandum, filed August 27, 1970, advanced only the argument that the entry had been illegal because the police lacked probable cause to believe that the object of their search (Brown himself) was in the apartment. This tack was evidently taken because the Government had to date proffered no evidence of such probable cause, relying instead on the existence of an arrest warrant for Brown, and on a mere allegation that the police had information as to his whereabouts. The defendants filed their first supplemental memorandum on March 25, 1971, the date of the second suppression hearing. Their stated reason for doing so was that the Government was to be permitted in that hearing to adduce evidence of the existence of probable cause. This necessitated a shift by defendants, made in their supplemental memorandum, to the theory that even if probable cause existed, the entry was nonetheless illegal because a search warrant had not been obtained. We are thus left with the question of why, assuming a second suppression hearing was necessary at all, it was so long in coming. If the record does not fully disclose the cause of delay, it at least makes clear that it was not the tardy filing of briefs.

2. Judge MacKinnon has emphasized, as mitigating the delay, the pendency during this period of two other prosecutions, one for murder and one for a separate narcotics offense. He argues in particular that on September 14, 1971, Brown was given a bifurcated trial which determined his mental responsibility for all three crimes. He asserts that this trial was the first phase of Brown’s trial for the instant offense, and hence that we need only consider the delay that occurred up until that time.

I cannot agree. A joint bifurcated trial was apparently planned (the District Judge so ordered on June 19, 1970), but in fact never took place. For reasons not apparent from the record, the bifurcated trial in September of 1971 concerned Brown’s responsibility for murder only. Judge MacKinnon considers that the verdict at this trial was “also determinative of competency with respect to the narcotics offense,” Statement at 22, and by this I take it he means mental responsibility for the narcotics offense, rather than competency to be tried for it, the latter having been found many months earlier in May of 1970. Manifestly, however, a defendant’s mental responsibility for one offense and his mental responsibility for another are two separate issues which, if they are raised, must be separately tried. In fact, appellant never did raise this defense to the narcotics charge, quite possibly because it simply did not seem likely to succeed. If what Judge MacKinnon is suggesting is that he was precluded from raising it by a promise to abide by the verdict in the bifurcated murder trial, the answer is that, even assuming that such a promise would be enforceable, it is hardly to be inferred from the appellant’s mere failure to object to the ambiguous suggestion of a “consolidated” mental responsibility trial.

If the bifurcated murder trial was not itself the beginning of the appellant’s narcotics trial, then neither did it excuse the delay that took place before that trial actually was begun. The bifurcated murder trial took place a year and four months after Brown’s competency was determined. The appeal in that case was argued a year and five months later still. Time could have been found for the narcotics trial. Such, plainly, was appellant’s wish, since he first asserted his right to a speedy narcotics trial long before the bifurcated trial took place. We must assume, then, that the narcotics trial would have proceeded but for the suppression motions. And it was not the bifurcated murder trial which caused the delay in disposing of those motions; the trial judge eventually granted them months before the bifurcated trial was scheduled to take place., The pendency of a second narcotics prosecution is even less of an excuse. Brown’s competency to stand trial for that offense was likewise found on May 25, 1970. His mental responsibility for it was likewise committed to, and then omitted from, the bifurcated murder trial. Nothing further transpired in that case except for Brown’s motion for speedy trial dismissal on October 31, 1972, and the Government’s motion to dismiss (this one granted) on February 16, 1973.