McGowan, Leventhal and MacKinnon, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appellant was found guilty of soliciting, and of accepting, a bribe in violation of 18 U.S.C. § 201(g) (1970), fined $2,000.00, and given a suspended sentence of six to eighteen months. His principal claim on appeal presents the recurring problem of the right to a speedy trial.
On January 17, 1969, appellant, then division chief of the District of Columbia Sewer Operations Division, allegedly approached one Glen Carrico, an employee of the Division, and asked for a payment of $400.00 in return for appellant's approving Carrico's promotion to a higher job. *fn1 Although Carrico refused, he was in fact promoted on February 23, 1969. Nevertheless, appellant continued to make demands and threats for payment, until Carrico finally alerted the FBI and the Metropolitan Police. The police arranged for Carrico to give appellant $100.00 in marked bills at work on the morning of April 24, and the transaction was to be both recorded by a device attached to Carrico and observed by police officers nearby. When the payment took place as planned, the police promptly arrested appellant and advised him of his rights, whereupon appellant handed the money to the police and said, "This is gratitude for you. I paid $400.00 out of my own pocket to get Glen this promotion." Appellant then expressed concern over the effect the incident would have on his wife if it were reported in the papers.
Appellant was initially charged by information in the District of Columbia Court of General Sessions (now the Superior Court) under 22 D.C. Code § 702 (as amended) (1967 ed.), which provides in pertinent part:
Every person who . . . receives . . . any money . . . from any person for . . . procuring . . . any . . . promotion in office from the Commissioners of the District of Columbia, or from any officer under them . . . shall be deemed guilty of a misdemeanor.
The case was called to trial on July 26, 1969, but was dismissed on the grounds that the Commissioners of the District of Columbia had been abolished in the reorganization of the District in 1967, and thus the information failed to charge a crime. The Government appealed to the District of Columbia Court of Appeals, which affirmed on April 13, 1970. United States v. Bishton, 264 A.2d 139. Three months later, on July 22, 1970, appellant was indicted by a federal grand jury for the same offense under the federal statute. On September 15, 1970, and again immediately before trial, appellant moved to dismiss for lack of speedy trial. The motion was denied on both occasions, and the case was tried on January 4-5, 1971, some twenty months after his arrest.
While fundamental to our notions of criminal justice, the right to speedy trial has proven to be one of the most difficult constitutional protections to apply to the circumstances of particular cases. The Supreme Court has recognized that the right is necessarily relative, requiring a balance between the interest of the public in bringing criminals to justice and the interest of the citizen in being free from oppressive and vexatious delay. Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 49 L. Ed. 950 (1905). In each case, therefore, courts must carefully examine the totality of circumstances surrounding the delay, and must consider "the length of the delay; reasons for the delay; diligence of prosecutor, court and defense counsel; and reasonable possibility of prejudice from the delay." Hedgepeth v. United States, 125 U.S.App.D.C. 19, 21, 365 F.2d 952, 954 (1966). Weighing these factors in this case, we conclude that appellant's right to speedy trial was not unacceptably abridged.
The first three months after appellant's arrest were spent in preparation for trial, and there is no indication that appellant ever desired or sought expedition at that time. During the following eight months, the case was pending in the District of Columbia Court of Appeals, and thus beyond the power of the prosecutor to expedite. Courts, of course, are not excluded from the obligation to give defendants a speedy trial. But the function of appellate courts necessarily casts the delay attendant upon their deliberations in a somewhat different light, and the time spent on appeals is not generally included for purposes of calculating the period of delay in prosecution. *fn2 The right of the Government to appeal decisions in the defendant's favor before jeopardy attaches is designed to protect the interest of society in lawfully prosecuting criminal offenders, and, while such an appeal is not at the defendant's instance, the fact that he is legally, albeit conditionally, a free man minimizes the oppressiveness of the attendant delay.
We do not intimate that the delay caused by appeals by the Government may never constitute denial of a defendant's right to speedy trial. Whenever the Government's action at any stage of the proceeding indicates bad faith, neglect, or a purpose to secure delay itself or some other procedural advantage, the resulting delay is not justified. Thus, in Petition of Provoo, 17 F.R.D. 183 (D.Md.1955), aff'd per curiam, 350 U.S. 857, 76 S. Ct. 101, 100 L. Ed. 761, the court dismissed a case brought to trial four and a half years after the indictment and nine to twelve years after the alleged offenses:
"The serious delay in this case was . . . caused by the deliberate act of the government in bringing the case in New York in the first place, when the government must have known that venue in New York was at best doubtful, and took the chance of the supposed advantage to the government of proceeding in New York. . . . Where the government chooses to proceed in a certain district of doubtful venue, when venue in another case is clear, the government must be held responsible for the effects of its election." Id. at 201.
While appellant would characterize as similarly unjustifiable the Government's initial decision to prosecute in the Court of General Sessions under the D.C. Code rather than in the federal court under the U.S. Code, and its decision to appeal the dismissal in the former court rather than immediately to seek a federal indictment, we do not agree that these decisions reflected arbitrary, negligent, or purposefully oppressive behavior on the part of the Government. See Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); Smith v. United States, 118 U.S.App.D.C. 38, 41, 331 F.2d 784, 787 (1964) (en banc). The District of Columbia Court of Appeals itself recognized that the flaw it found in the indictment was highly technical. Thus, unlike the court in Petition of Provoo (supra) we cannot say that the Government's decision to proceed in the Court of General Sessions was "at best doubtful," or that it "must have known" that it would not prevail on appeal.
The federal indictment was brought three months later. While the record supplies no explanation for this delay, it is significant that during this time appellant was a free man against whom no prosecution was pending. The Supreme Court has recently held that the right to speedy trial attaches when a prosecution has begun, either by indictment or by the "actual restraints imposed by arrest." United States v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). While it is true that one prosecution for the offense began in April, 1969, that prosecution was finally terminated by the DCCA in April, 1970; and the rationale of Marion, although perhaps not applying with the same force, has relevance to the period between the end of one prosecution and the beginning of another, even when the two arise from the same occurrence. When a citizen stands neither arrested nor indicted for an offense, he "suffers no restraints on his liberty and is not the subject of public accusation; his situation does not compare with that of a defendant who has been arrested and held to answer." United States v. Marion (supra) at 321, 92 S. Ct. at 464. Even before arrest or indictment, of course, a defendant may claim the right to be free from purposeful or oppressive delays in instituting the prosecution that tend to deprive him of a fair trial. United States v. Marion (supra) at 324, 92 S. Ct. 455. In the circumstances of this case, however, there is no indication that this lapse of three months had such an effect.
Following the federal indictment, the case proceeded with reasonable alacrity, and the record suggests that the delays that did occur were at the instance, or with the acquiescence, of appellant. For example, on the very eve of trial appellant's counsel introduced a motion to dismiss based on an entirely new theory of law. The Government strenuously objected ...