United States v. Kenneth Moses Loud Hawk, Russ James Redner, Dennis James Banks, and Darlene Pearl Nichols, AKA Kamook Banks

dissenting:

I dissent. The majority has misconstrued United States v. MacDonald, 456 U.S. 1 , 102 S.Ct. 1497 , 71 L.Ed.2d 696 (1982) (.MacDonald); which applies in this case to exclude from the sixth amendment measurement of speedy trial the periods between live indictments against the defendants.

I

The majority observes that the speedy trial clause did not apply in MacDonald between the government’s good faith voluntary dismissal of military charges and a subsequent civil indictment. This does not mean, as the majority holds, that MacDonald fails to apply to involuntary dismissals or dismissals from which the government appeals. The Supreme Court, in a general statement of its holding, said: “Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” Id. at 7 , 102 S.Ct. at 1501 . Nowhere in the remainder of its opinion is there any hint that the Court meant only voluntary dismissals. See id. at 7-11 , 102 S.Ct. at 1501-1503 . On the contrary, in a footnote it commented “[o]ur holding agrees with ... the Speedy Trial Act of 1974, ... that if charges are initially…

This is the third interlocutory appeal arising from the government’s efforts to prosecute these defendants. Although it has been more than eight years since defendants were originally arrested and indicted, they still have not been brought to trial so that their guilt or innocence may be determined. We are now asked to decide whether the delay in bringing defendants to trial has violated their constitutional right to a speedy trial.

I.

The facts giving rise to the present charges and the first two appeals in this case are adequately set forth in our two previous opinions. See United States v. Banks, 682 F.2d 841, 842-44 (9th Cir.1982), cert, denied, 459 U.S. 1117 , 103 S.Ct. 755 , 74 L.Ed.2d 972 (1983); United States v. Loud Hawk, 628 F.2d 1139, 1141-43 (9th Cir.1979) (en banc), cert, denied, 445 U.S. 917 , 100 S.Ct. 1279 , 63 L.Ed.2d 602 (1980). We merely summarize them here.

Defendants were arrested on November 14, 1975, after being stopped by the Oregon State Police on the basis of information supplied by the FBI. A search of defendants’ vehicles pursuant to a valid search warrant uncovered several firearms, a quantity of what the police believed to be dynamite, and…

741 F.2d 1184 UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Moses LOUD HAWK, Russ James Redner, Dennis James Banks, and Darlene Pearl Nichols, aka KaMook Banks, Defendants-Appellees. No. 83-3067. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 4, 1984. Decided Aug. 30, 1984. Kenneth S. Stern, Milwaukie, Or., for defendants-appellees. Charles Turner, Asst. U.S. Atty., Portland, Or., for plaintiff-appellant. Appeal from the United States District Court for the District of Oregon. Before WALLACE and CANBY, Circuit Judges, and CRAIG, District Judge * . CANBY, Circuit Judge: 1 This is the third interlocutory appeal arising from the government's efforts to prosecute these defendants. Although it has been more than eight years since defendants were originally arrested and indicted, they still have not been brought to trial so that their guilt or innocence may be determined. We are now asked to decide whether the delay in bringing defendants to trial has violated their constitutional right to a speedy trial. I. 2 The facts giving rise to the present charges and the first two appeals in this case are adequately set forth in our two previous opinions.…