Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 CR 193 Prentice H. Marshall, Judge.
Hastie*fn* and Castle, Senior Circuit Judges, and Fairchild, Circuit Judge.
CASTLE, Senior Circuit Judge.
The Government appeals under 18 U.S.C. § 3731 from a judgment of the district court dismissing its indictment of defendant Blackburn Jackson because of the Government's refusal to comply with a pretrial order entered December 18, 1973, and for the additional reason that the defendant had been denied his right to a speedy trial. We find that the defendant has not been deprived of his sixth amendment guarantee of a speedy trial, but we also conclude that the district court properly required the Government to make a pretrial disclosure of witnesses to be called at the trial.
The facts of this case are extensively detailed in the district court's reported Memorandum Opinion, United States v. Blackburn Jackson, 374 F. Supp. 168 (N.D.Ill. 1974). Briefly, on November 9, 1972, Blackburn Jackson was indicted*fn1 on five counts of mail theft in violation of 18 U.S.C. § 1708 and was released on bail. Trial was set for February 26, 1973. This trial date was vacated when the Government informed the court that it anticipated the return of a new indictment, and on March 13, 1973 the Government filed a superseding indictment charging Jackson and others with conspiracy to commit mail theft and to forge Government checks in violation of 18 U.S.C. § 371, and with additional counts of mail theft and forgery in violation of 18 U.S.C. §§ 495 & 1708. Trial was scheduled for June 11, 1973, but for reasons undisclosed by the record, the trial was rescheduled for September 10, 1973. Prior to the September trial date, the case was reassigned to Judge Marshall as part of his initial calendar. Because older cases on his calendar were scheduled for trial in September, Judge Marshall vacated the September trial date, and set the case for trial on January 8, 1974, with a pretrial conference to be held on December 18, 1973.
At the pretrial conference, the Government sought a continuance because other commitments of the government attorney assigned to the case prevented the attorney from meeting the January 8 trial date. Defendant Jackson objected to any continuance, and orally demanded an immediate trial. However, on the Government's motion, and in consideration of the court's then pending trial schedule, the case was continued until April 15, 1974. At the close of the pretrial conference, the court issued an order which, inter alia, required both parties to submit a list of witnesses to be called at trial.
No action was taken by the Government with respect to the order until immediately before trial, now scheduled to begin April 8, 1974. On April 1, the Government requested clarification of the December 18 order, and on April 2 indicated that insofar as the order required the Government to submit its witness list to the defendant, it would not comply. Based on this refusal, and on the additional finding that the Government's actions had deprived the defendant of his right to a speedy trial, Judge Marshall dismissed the indictment as to defendant Blackburn Jackson.
A finding that the speedy trial guarantee has been violated must be evaluated in light of the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), in which four factors are weighed: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. As the Supreme Court noted, such a balancing test compels us to approach speedy trial cases on an ad hoc basis. Id.
We turn first to a consideration of the prejudice that the defendant has experienced. In Barker, the Court noted that what constitutes prejudice should be assessed in light of the interests that the speedy trial right was designed to protect, and the Court identified three such interests: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. at 532. Of these three interests, however, only the second is of concern here. The first interest is not involved because the defendant was free on bail. As to the third interest, the defendant has never claimed, nor did the district court find, that his defense on the merits has been impaired.
The speedy trial guarantee was designed to protect against "emotional stress that can be presumed to result in the ordinary person from uncertainties in the prospect of facing public trial. . .." Strunk v. United States, 412 U.S. 434, 439, 37 L. Ed. 2d 56, 93 S. Ct. 2260 (1973). See also Moore v. Arizona, 414 U.S. 25, 38 L. Ed. 2d 183, 94 S. Ct. 188 (1973). However, in United States v. Annerino, 495 F.2d 1159, 1163-1164 (7th Cir. 1974), we stated that "conclusory allegations of general anxiety and depression . . . constitute a showing of only minimal prejudice of a kind normally attending criminal indictment," and found that this prejudice alone does not result in a constitutional violation without "a better showing on the other factors [length of delay and reason for delay]. . .." Accord, United States v. DeTienne, 468 F.2d 151, 158 (1972), cert. denied, 410 U.S. 911, 93 S. Ct. 974, 35 L. Ed. 2d 274 (1973). The defendant here, in demanding a speedy trial, did not even make any conclusory allegations of emotional stress.
Further, an important indicator of the effect of any stress exerted on the defendant by the delay is the frequency and force of the defendant's own demands for a speedy trial. Barker, supra, at 529. The defendant's first demand for immediate trial did not occur until the December 18 pretrial conference, approximately thirteen months after indictment, and was then only made orally in response to the Government's request for a postponement of the January 8 trial date. The defendant again demanded a speedy trial in a written motion to dismiss on April 3. In neither of these instances, however, did the defendant allege any prejudice, nor did the defendant forcefully press his demand. The demands were not frequent, were merely pro forma, and did not indicate the presence of any actual prejudice. See United States v. Ricketson, 498 F.2d 367, 372 (7th Cir. 1974). Thus, the district court could only find that the defendant had been prejudiced "by the mere pendency of the charges made against him." (374 F. Supp. at 178). We conclude, therefore, that at most the defendant has suffered only that presumed prejudice accompanying the criminal process, and this, without more, does not amount to a constitutional violation.
At some point, however, this prejudice becomes intolerable when considered in light of the length of delay and the reasons for the delay. United States v. Annerino, supra, at 1163; cf. United States v. Macino, 486 F.2d 750, ...