Swygert, Chief Judge, and Stevens and Sprecher, Circuit Judges.
At the conclusion of a one-day jury trial, appellant-defendant Clarence Eugene Strunk was found guilty of transporting on July 1, 1969 a stolen Oldsmobile station wagon from Oconomowoc, Wisconsin to Mount Vernon, Illinois in violation of 18 U.S.C. § 2312. The defendant was given a five-year sentence to run concurrently with one that he was then serving in the Nebraska State Penitentiary. The defendant appeals from his conviction alleging as the single ground for reversal the denial of his constitutional right of a speedy trial.
The following is a narration of the pertinent facts. On July 24, 1969 the defendant was arrested and held in custody of state authorities in Nebraska on a charge of burglary. On a plea of guilty to a reduced charge of grand larceny in a Nebraska state court, a sentence of one to three years was imposed.
While in custody of the state authorities the defendant was interviewed on September 3, 1969 by an agent of the Federal Bureau of Investigation. After receiving Miranda warnings, the defendant discussed with the agent the facts relating to the transportation of the car which is the subject matter of the instant prosecution. The defendant advised the agent that it was defendant's intention to "demand a speedy trial under Rule 20; and that was why he wanted to get this case cleaned up at the time I talked to him."
According to the record, "the case report of the Federal Bureau of Investigation was filed in Springfield, Illinois" on October 20, 1969, and on December 17 the United States Attorney for the Eastern District of Illinois received correspondence from the United States Attorney for the District of Nebraska which indicated that the defendant "desired to enter a plea to the charge under Rule 20, Federal Rules of Criminal Procedure." On the following day, the federal prosecutor sent the requested forms to Nebraska for processing the case under the rule.
Not having received any word whether the case would proceed under Rule 20 in the Nebraska district, the United States Attorney for the Eastern District of Illinois presented the matter to a grand jury in the latter part of May 1970. An indictment was returned on May 26.
Next the record reveals that on August 13, 1970 the United States Attorney for the District of Nebraska wrote his counterpart in Illinois that the defendant "definitely refused to enter a plea under Rule 20 and that the defendant definitely intended to raise the issue of speedy trial." Thereafter nothing happened until February 9, 1971, when the defendant, having been brought to East St. Louis on a writ of habeas corpus ad prosequendum, was arraigned in the district court for the Eastern District of Illinois. At the arraignment, counsel was appointed for the defendant, and, after a not guilty plea, the trial was set for March 29, 1971.
Prior to the trial, defendant's counsel moved for a dismissal of the indictment pursuant to Fed.R.Crim.P. 48(b), asserting that the defendant had been denied a speedy trial as guaranteed by the sixth amendment. Briefs were filed by the parties, and the district judge, after hearing oral argument but without conducting an evidentiary hearing, denied the motion.
Approximately eleven months elapsed between the commission of the crime and the return of the indictment. The defendant, however, raises no issue with regard to the preindictment delay. He concedes that United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), forecloses consideration of that issue in his case. The issue he does raise concerns the Government's delay in bringing him to trial after the return of the indictment. The time elapsing between the filing of the charge and the trial was 306 days, or approximately ten months. The defendant contends that when all the circumstances are considered he was not offered a speedy trial and that the district judge erred in not dismissing the indictment.
Initially, it must be observed that the record is scanty on the issue before us. No voir dire evidentiary hearing was conducted. Most of the facts must be gleaned from the docket entries and the briefs filed in the district court in support of and in opposition to the motion to dismiss. Nevertheless, while we considered remanding for an evidentiary hearing, we have concluded that the issue can be decided based upon the record before us and the oral argument. We do, however, emphasize that the better practice would be for the district court to conduct an evidentiary hearing upon a motion under Rule 48(b), and to make findings in ruling on the motion.
Recently, the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (June 20, 1972), had occasion to speak at length on the exact question before us. After acknowledging the uncertainty which courts experience in protecting the right of a speedy trial, the Court nevertheless rejected as overrigid two approaches urged upon it as a means of clarifying the issues. One approach was that a trial be offered the defendant within a specified time. On that point Mr. Justice Powell said, "We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months." 92 S. Ct. at 2188.
The second approach relates to what is designated the "demand-waiver" doctrine, which "provides that a defendant waives any consideration of his right to a speedy trial for any period prior to which he has not demanded a trial." 92 S. Ct. at 2189. After indicating that the waiver of the right to a speedy trial should be gauged with the same severity as is the waiver of other fundamental rights guaranteed by the Constitution, the Court found the demand-waiver doctrine unacceptable, saying, "We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." 92 S. Ct. at 2191.
As an alternative of the two rejected approaches -- a fixed-time rule and the demand-waiver doctrine -- the Court adopted a "balancing test" whereby the conduct of both the prosecutor and the defendant are weighed. Among the factors that courts should consider in applying the test, four were specifically identified: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Mr. Justice Powell proceeded to elaborate some of the considerations which might be relevant in evaluating ...