Before WILBUR K. MILLER, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1962.CDC.71
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
On July 20, 1959, appellant was indicted for embezzlement, the crime haing been committed five weeks earlier. After delays provoked by appellant, his case was called for trial on February 16, 1960. At that time the government obtained a week's continuance in order to locate a missing document essential to the prosecution. But government counsel assured the court (and the accused) that if the evidence could not be located within the week "we will, on our own motion, move to dismiss the case." The case was again called on February 23 and the government, representing that the "crucial" document was still missing, advised the court that it "could not oppose an appropriate motion." Appellant's court-appointed counsel thereupon moved for dismissal and the District Judge dismissed the indictment "for want of prosecution." At the same time, the judge urged the government's attorney to investigate the disappearance of the evidence and commented that, since the statute of limitations had not run, appellant could be reindicted. The government did not appeal this dismissal. *fn1
Forty days later, on April 4, 1960, the missing document having been discovered, appellant was re-indicted for the same offense. By then, however, he was in Florida, and removal proceedings delayed the trial. The government obtained a further delay of six weeks on account of the absence of the complaining witness. Appellant was ultimately tried and convicted on August 3, 1961. For the first time, on the appeal from that conviction, he raised the objection that the second indictment was barred by the dismissal of the first. Because the district court had not had an opportunity to rule on the point, his new counsel, appointed by this court, moved for a remand, but later acquiesced in the government's suggestion that the appeal here be stayed pending further proceedings in the district court. After this court had issued an appropriate order, appellant moved to vacate his sentence under 28 U.S.C. § 2255, and the district court held the hearing contemplated by the statute. Relief was denied and an appeal followed. That appeal and the direct appeal were consolidated here and are now before us.
Appellant's main claim is that the dismissal of the first indictment barred any further prosecution for the same offense. The argument is that the dismissal expressly awarded for "want of prosecution," standing unappealed, amounts to a final finding that appellant has been denied a "speedy trial" and, accordingly, cannot be further prosecuted consistently with his constitutional right. U.S.Const. Amend. VI. The government responds initially that the objection has been waived by failure to raise it after the second indictment, or at least before the conclusion of the trial. See Fed.R.Crim.P. Rule 12(b) (2), 18 U.S.C. The government therefore insists this court should not notice the point on the direct appeal under Fed.R.Crim.P. Rule 52(b), and says the district court could not properly entertain a collateral attack on that ground under 28 U.S.C. § 2255. Since there is some doubt about the question *fn2 in view of the Supreme Court's ruling in Jordan v. United States Dist. Court for Dist. of Columbia, 352 U.S. 904, 77 S. Ct. 151, 1 L. Ed. 2d 114, *fn3 vacating our judgment in that case, 98 U.S.App.D.C. 160, 233 F.2d 362, we prefer to rest decision on the merits.
We accept appellant's premise that the constitutional right to a speedy trial is properly enforced by dismissal of the charge when there has been prejudicial delay in bring the case to trial. *fn4 United States v. Provoo, 350 U.S. 857, 76 S. Ct. 101, 100 L. Ed. 761, affirming Petition of Provoo, D.Md., 17 F.R.D. 183; Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259; United States v. McWilliams, 82 U.S.App.D.C. 259, 163 F.2d 695. *fn5 We also agree that a dismissal based on a finding that the constitutional right to a speedy trial has been denied bars all further prosecution of the accused for the same offense. While there appears to be no express articulation of the rule in the reported decisions, it is the unspoken premise of all the cases involving the Speedy Trial Clause. *fn6 It is, moreover, a necessary rule if the constitutional guarantee is not to be washed away in the dirty water of the first prosecution, leaving the government free to begin anew with clean hands. *fn7 But these principles do not decide this case.
The dismissal here was not compelled by the Speedy Trial Clause. Appellant was promptly indicted, within five weeks after the crime, and only seven months more had passed when the court dismissed the indictment. *fn8 At that, most of the delay was of his own making. Certainly, in these circumstances, the one week continuance obtained by the government did not work a deprivation of constitutional rights. Nor would a reasonable further delay. The trial judge acted, not under constitutional compulsion, *fn9 but, on the government's suggestion, out of concern for the accused who remained incarcerated, presumably because he could not meet his bond. *fn10 And the court clearly expressed its intent to award the dismissal without prejudice to further prosecution should the government later *fn11 uncover the missing evidence.
Appellant says, however, that the dismissal was granted under Fed.R.Crim.P. Rule 48(b), for "want of prosecution," and that this is equivalent to a finding that he had been denied his constitutional right to a speedy trial, which finding is res adjudicata and cannot now be reexamined. But even accepting appellant's contention that this was a Rule 48(b) dismissal, *fn12 the conclusion does not follow. That Rule is much broader than he imagines. Undeniably, it implements the constitutional guarantee of a speedy trial. See Pollard v. United States (supra) 352 U.S. at 361, n. 7, 77 S. Ct. 481. But it goes further. As the Committee Note indicates, Rule 48(b) "is a restatement of the inherent power of the court to dismiss a case for want of prosecution." *fn13 And that power is not circumscribed by the Sixth Amendment. There are many cases in which the court, moved by the plight of an accused unable to make bond, will, and should, enlarge him, even though there has been no violation of the Speedy Trial Clause. If the judge could not do so, except with prejudice to a subsequent prosecution within the limitation period, serious inequity would result. *fn14
The accused cannot complain because a liberal application of the Rule earns him temporary freedom, without according him full immunity from prosecution. *fn15 At most, he is entitled to know whether the sword of Damocles still hangs over him. If the dismissal is granted pursuant to a finding that the Speedy Trial Clause has been violated, the court should expressly dismiss with prejudice. Otherwise, the dismissal should note that it is awarded without prejudice to prosecution on a new indictment or information. Here the required warning was given, *fn16 and, under the facts, it was clearly a proper ruling. The conviction, the sentence, and the ordering denying the motion to vacate sentence are accordingly