UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 15, 1972.
UNITED STATES OF AMERICA, APPELLANT,
ROGER A. MELNICK ET AL.
Biggs, Van Dusen and Hunter, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
This appeal challenges a final May 11, 1971, district court order dismissing a January 28, 1971, indictment charging in four counts possession and sale of narcotic drugs, in violation of 21 U.S.C. § 331(q) (3) (A) and 21 U.S.C. §§ 331(q) (3) (A) and 21 U.S.C. § 331(q) (2), as well as aiding and abetting, on or about July 30, 1968, where defendants were arrested for such alleged federal crimes on July 31, 1968.*fn1
On December 20, 1971, subsequent to the district court order, the Supreme Court of the United States announced a decision which applied the Fifth and Sixth Amendments, as well as F.R.Crim.P. 48(b), to a case involving a delay of over three years between a federal agency cease and desist order and an indictment. United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). In Marion the Supreme Court discussed the Sixth Amendment in the following terms:
"Inordinate delay between arrest, indictment and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. 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. . . . So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy-trial provision of the Sixth Amendment." 404 U.S. at 320, 92 S. Ct. at 463.
Thus, it would appear that if a defendant is arrested for a federal crime for which he is subsequently indicted, such defendant would have become an "accused" within the meaning of the Sixth Amendment on the date of this arrest. See 404 U.S. at 318-19, 321-323, 325, 92 S. Ct. 455, 30 L. Ed. 2d 468. However, the Court in Marion declared that there was not need to "press the Sixth Amendment into service" with respect to a "preaccusation" delay, since the interests of a defendant in these circumstances are adequately protected by statutes of limitation and the due process clause of the Fifth Amendment.*fn2 See 404 U.S. at 323-325, 92 S. Ct. 455, 30 L. Ed. 2d 468. In connection with the latter protection, the Court pointed out at 404 U.S. at 324, 92 S. Ct. 455, 30 L. Ed. 2d 468:
"Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was a purposeful device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215] (1963); Napue v. Illinois, 360 U.S. 264 [79 S. Ct. 1173, 3 L. Ed. 2d 1217](1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases."
Since that decision, this court has handed down a decision considering a motion to dismiss for undue delay in a criminal prosecution. See United States v. Dukow, et al., 453 F.2d 1328 (3rd Cir.); cf. Hunt v. United States, 456 F.2d 582, (3rd Cir.); United States v. Varga, et al., 449 F.2d 1280 (3rd Cir.).
In view of these recent decisions, we have concluded that the above-mentioned district court orders should be vacated and the case remanded for a hearing on the issues presented under the Fifth and Sixth Amendments and F.R.Crim.P. 48(b) by the delay in this criminal prosecution in light of such decisions and the authorities cited in them. See United States v. Feldman, 425 F.2d 688, 692 at note 10 (3rd Cir. 1970); United States v. Childs, 415 F.2d 535, 536-537 (3rd Cir. 1969).
The district court orders of April 21, 1971, and May 11, 1971, will be vacated and the case remanded to the district court for further proceedings in accordance with this opinion.