Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MARC GILBERT DOGGETT, Petitioner v. UNITED STATES

No. 90-857

October 9, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.

APPEARANCES:

WILLIAM J. SHEPPARD, ESQ., Jacksonville, Florida, on behalf of the Petitioner.

ROBERT S. MUELLER, III, ESQ., Assistant Attorney General, Department of Justice, Washington, D.C., on behalf of the Respondent.

PROCEEDINGS

1:00 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 90-857, Marc Gilbert Doggett v. United States.

Mr. Sheppard?

ORAL ARGUMENT OF WILLIAM J. SHEPPARD ON BEHALF OF THE PETITIONER

MR. SHEPPARD: Mr. Chief Justice, and may it please the Court:

This case involves the constitutional right to a speedy trial in a situation where the defendant, the petitioner herein, had absolutely no knowledge of the existence of an indictment for a period of 8-1/2 years prior to being arrested.

For the last 6 years of that 8-1/2 years, it was clear that Mr. Doggett was available to the push of a button, running a credit check, to determine his whereabouts. Eight-and-a-half years after his indictment the United States Marshals Service, in conducting an operation entitled WANT II, which commenced on September 1 of 1988, pushed a button on a credit bureau computer in the Savannah office of the Marshal's Office and within 5 minutes found that Marc Doggett resided in Reston, Virginia, where he had been residing openly, freely, and above-board for the last 6 years.

The Government's efforts immediately after the indictment of Mr. Doggett demonstrates bad faith which constitutes prejudice. Shortly after Mr. Doggett's indictment, two State officials, at the request of the Jacksonville, Florida, DEA, went to his parents' home in North Carolina.

Mr. Doggett's mother is a Colombian national who's been married to an American citizen for many years and has three children. These two State officials, at the request of the Federal Government, dropped by her house one time in 8-1/2 years to determine where Mr. Doggett was. Mrs. Doggett immediately notified these officers that he had left for Colombia, and indeed gave him the flight number of his airplane in Miami, Florida, and the fact that he was updating his passport on his way.

QUESTION: But never told him of their visit?

MR. SHEPPARD: The record is absolutely clear, and both the magistrate, the district court, the Eleventh Circuit Court of Appeals, found that Mr. Doggett had no knowledge of his indictment through his mother or anyone. Indeed, the United States in the plea agreement entered into with Mr. Doggett stated that Mr. Doggett had no knowledge of the indictment and indeed the two co-defendants, who were apprehended and tried in 1980, had had no contact with Mr. Doggett. So the record is without question that Mr. Doggett had absolutely no knowledge of this indictment.

QUESTION: Which you can say is as much his mother's fault as it was the Government's fault.

MR. SHEPPARD: No. I do not accept that. The reason I do not accept that is that probably a year-and-a-half after Mr. Doggett was indicted he was arrested in the country of Panama and he was incarcerated there for 8 months. During that 8-month period, the DEA knew that he was there. The State Department visited Mr. Doggett on periodic basis during that 8-month period. Unfortunately, the State Department and the DEA didn't communicate with each other, and no one, including the State Department officials that visited him on numerous occasions, gave him notice of the indictment.

Thereafter, he was released in 1982 and returned to this country after a couple of months visiting family in Colombia. As long as 2 years -- 32 months, 38 months, the DEA agent in Jacksonville, based on information that he had received in 1981, fabricated three DEA 6 reports stating that Marc Doggett was still incarcerated in the country of Panama.

These fabricated reports caused the United States to exert no further effort to obtain the apprehension of Mr. Doggett, to his detriment.

Mr. Doggett returned to the United States, using his own name, through JFK Airport in New York City and returned to North Carolina for a brief period of time living with a grandmother, and then became married, obtained an AA degree, has had numerous jobs, had many credit cards, bought two houses, paid United States income tax, and made no effort to conceal his identity, which is --

QUESTION: Mr. Sheppard, cases from this Court dealing with the speedy trial clause have identified two concerns that are behind the provisions of the clause. One is the anxiety factor of someone who is aware of the indictment, and nothing has happened, and secondly the loss of liberty pending trial if someone's incarcerated. Now, we don't have either of those things at play here.

MR. SHEPPARD: I would certainly concede that, Justice O'Connor, but I would also state that the same precedent from which those two concerns were articulated also communicated a third concern, and that is impairment of the defense of a person. Further, the same cases, Barker --

QUESTION: No, but, did the courts below in this case find that both the State and the defendant were equally affected by the absence of any evidence as a result of --

MR. SHEPPARD: Indeed, the courts below did not find actual prejudice. However, we submit that that was an erroneous analysis of this record, and I'd like to communicate why Mr. Doggett was prejudiced.

Number one, there were 17 tapes made in the 1979, '80 time period when this case was investigated. Mr. Doggett was involved in -- very peripherally in a large -- what turned out to be a large cocaine transaction. The Government in their brief, and I suspect in their argument, will attempt to lead you to believe that he was involved in a 40-kilogram cocaine transaction.

That would belie the record if one reviews the record closely. He pled -- entered a conditional plea involving 5.7 grams of cocaine, and the Eleventh Circuit opinion affirming the conviction of the two co-defendants in 1982 explicitly indicated that there was no involvement by Mr. Doggett.

Now, the prejudice that Mr. Doggett suffered was, number one, there were 17 tapes that were missing, and 8-1/2 years later it's hard to say (1) were the tapes totally blank, (2) whose voices were on the tape, (3) did the content of the tapes -- would they have exonerated Mr. Doggett?

Another factor was that the moving force in this investigation was a confidential informant named Ivan Cifuentes. Ivan Cifuentes at the time of the hearing on the motion to dismiss in this case had not been communicated with by the DEA for a 1-1/2 year period, and as DEA Agent Driver stated, he, along with the tapes, was, quote, "missing in action," end quote.

The court -- the Eleventh Circuit found that that witness was available. If the Eleventh Circuit reviewed the record closely, as was their obligation, they would have not made that finding, because he was not available. He had entered the witness protection program, had voluntarily withdrawn, and Agent Driver had not communicated with him or had any information of his whereabouts for at least a year-and-a-half period.

QUESTION: Am I correct, Mr. Sheppard, that he hasn't been in any trouble in this latter period of his life?

MR. SHEPPARD: He has not been in any trouble other, Your Honor, than three civil traffic infractions, which we submit would have laid the paper trail that, if the Government was carrying out its due diligence obligation to apprehend fugitives, would have led them directly to him by plugging them into a computer to determine what his driving record is, but he had absolutely no criminal charges whatsoever.

QUESTION: What kind of a sentence did he receive?

MR. SHEPPARD: He received a $1,000 fine, a three-year probationary term, and most devastatingly, a felony conviction which he will carry for the remainder of his life due to the actions of the United States and its failure to carry out its duty.

QUESTION: Well, does it really make that much difference that he was -- other than, I suppose, the inherent equities of the case? Suppose he was out robbing banks? You'd have about the same argument here anyway, wouldn't you?

MR. SHEPPARD: Respectfully, I don't know that his clean record or his -- if he had engaged in criminal activity is the proper focus of the analysis. We respectfully submit that, compatible with the precedent of this Court, and going back to Justice O'Connor's inquiry, the cases that set up the concerns also don't foreclose consideration of other concerns.

QUESTION: Well, let me ask you about that. If we were writing on a clean slate, could you argue that a speedy trial is either speedy or not? It's irrelevant that he has anguish, it's irrelevant that he has prejudice, and it's irrelevant that he's lost or not lost liberty. He's entitled to a speedy trial whether or not any of those factors exist.

MR. SHEPPARD: Well, we are submitting a rule that isn't quite as radical as looking at just the duration of time.

We submit for this Court's consideration kind of a fine-tuning of this Court's precedent, where, as in a case like this, the time of the delay from indictment to arrest exceeds the period of time contained in the statute of limitations, which is 5 years, and that the defendant does not know of the existence of the charges against him and therefore is not a fugitive, that the defendant should not be required to show prejudice.

Now, we're not asking for a per se rule. We're just submitting that it is impossible for Marc Doggett to go back 8-1/2 years later and prove what he doesn't know, and that is that he was prejudiced. And we respectfully --

QUESTION: That does not go my question about the sentence. You concede he was in drugs in the early years?

MR. SHEPPARD: Conceded, Your Honor. Absolutely conceded.

QUESTION: Rather a light sentence, don't you think?

MR. SHEPPARD: Not a light sentence to pay the debt for a youthful mistake when you're 32 years old. Eight-and-a-half years, or by the time we got to that point in the proceedings, 9-1/2 years from the alleged conduct.

QUESTION: Everything prior to 22 is a youthful mistake?

MR. SHEPPARD: Respectfully, Your Honor, I think in the case of Doggett, whose upbringing because of his parents' marriage, of a foreign national from Colombia and an American Ph.D. physicist in this country, which exposed him to Colombia, going to see his grandmother and his elderly aunts throughout his youth, yes. And I think Congress, prior to its abolition of the Youth Corrections Act and the Young Adult Offender Act felt that age 22 was not too old for special consideration of individuals who had made youthful mistakes in becoming involved in criminal activity.

QUESTION: Of course, it's pure speeulation, but I wonder if the judge here in a way didn't take the passage of time into consideration in fixing sentence?

MR. SHEPPARD: I would be less than forthright with the Court to suggest that that is probably an appropriate observation. His co-defendant received 3 years and was sentenced at the same time.

QUESTION: Mr. Sheppard, you're not saying that it was intentional on the part of the police here, but just that they were grossly negligent, or negligent at least, in not finding him sooner. The police make mistakes. I suppose sometimes they're negligent in not -- in not breaking a case sooner and not finding out who the guilty person is.

MR. SHEPPARD: Justice Scalia --

QUESTION: Suppose -- suppose that you have a 5-year statute of limitations and because of their negligence a crime that should have been solved right away and they should have known the criminal within weeks in fact is not solved until 4 years and 10 months, and then it takes them another 3 months to locate the malefactor, which means you're over the 5-year statute of limitations period, and most of that, 4 years 10 months, is due to the negligence of the police. Is that situation any different from the situation your client finds himself in?

MR. SHEPPARD: Absolutely.

QUESTION: Why?

MR. SHEPPARD: You suggest that the conduct of the police or the United States authorities in this case was negligence, which -- I'm stuck with that finding by the Eleventh Circuit, but it belies the record.

Marc Doggett --

QUESTION: Let's go with the finding for the time being. Let's assume it was just negligent.

MR. SHEPPARD: Assuming it was negligence, then I think it would rise up to the level of whether the defendant could demonstrate some prejudice, and I respectfully submit on this record we have.

QUESTION: Assuming it's negligent, is your situation any different from the hypothetical that I just gave you? In other words, if we found for your client here, wouldn't we have to find also for the person who claims that the police negligently did not solve the crime soon enough?

MR. SHEPPARD: I guess the best thing I could say about your hypothetical, it was 4 years and 2 months, and this is 8 years and 6 months, which is twice as long.

QUESTION: Well, there's another answer, too, isn't there? What causes the clock to start running under the Sixth Amendment?

MR. SHEPPARD: Well, absolutely. The indictment under Marion --

QUESTION: In Justice Scalia's example there's no Sixth Amendment issue at all.

MR. SHEPPARD: That's absolutely correct, and the indictment starts it running here --

QUESTION: Thank you, Justice.

(Laughter.)

MR. SHEPPARD: Indeed, and thank you for thanking him, sir.

(Laughter.)

QUESTION: Mr. Sheppard, you presented two questions in your petition for certiorari, and both seem to assume that there was no actual prejudice shown and that there need not be. Isn't that the way we take the case?

MR. SHEPPARD: I think you take it that way, and what I'm suggesting by what I guess I would call a bright line rule is that in this extreme delay cases, and especially when there is a demonstration on the record of bad faith by the Government --

QUESTION: But I thought you said the court of appeals found negligence but no bad faith?

MR. SHEPPARD: They found negligence, but on a record that demonstrated that a law enforcement officer in 1981 --

QUESTION: You're not being very helpful, Mr. Sheppard.

MR. SHEPPARD: I apologize.

QUESTION: We don't take these cases to resolve individual factual disputes, generally. You raise no question in your petition for certiorari that the court of appeals was wrong in finding negligence rather than bad faith.

MR. SHEPPARD: I didn't frame it specifically that way, but I believe that the first issue when we raised it of whether the -- when the factors in Barker are balanced as a whole, and even the Eleventh Circuit found that two of those four factors inured to the benefit of Doggett.

QUESTION: Yes, they did.

MR. SHEPPARD: One was neutral, and one we did not prove prejudice.

QUESTION: Well, what we would expect to get, I think, from you on this Court is a legal argument that you don't have -- the defendant shouldn't have to prove actual prejudice when the other factors were weighed the way they were.

MR. SHEPPARD: That's exactly my argument --

QUESTION: Yes, but it hasn't --

MR. SHEPPARD: Mr. Chief Justice.

QUESTION: I think it's been interspersed with a lot of other things.

MR. SHEPPARD: I -- two --

QUESTION: You said a minute ago that if you accepted the finding that there was only negligence you would have to prove negligence -- or have to prove prejudice.

MR. SHEPPARD: Assuming --

QUESTION: I thought that's what you'd said a minute ago.

MR. SHEPPARD: Justice Scalia said assume negligence, which --

QUESTION: Yes.

MR. SHEPPARD: And as the Chief Justice points out, I'm stuck with that record.

QUESTION: Well --

MR. SHEPPARD: And I accept that.

QUESTION: And therefore are you stuck with the notion that it must be you who must prove --

MR. SHEPPARD: Absolutely not, and what I'm suggesting by my bright line rule is that in an 8-1/2 year delay, and especially if you look at the record, DEA Agent Driver testified at the hearing that after 1985, when he coincidentally was transferred to Panama and learned 3-1/2 years later that Mr. Doggett was in Panama, that he could not recall what, if anything, he did as a result of that information.

He couldn't recall what he did -- a trained individual, trained to make -- preserve notes so that he could have refreshed recollections. It is inequitable to put that burden of proving prejudice on the defendant. This Court, in More v. Arizona, emphatically held that it is not one of the requirements under the Barker test --

QUESTION: Well, the Government -- the Government here argues that no matter whose burden it is, even if it's theirs, they've proved that there's just no kind of prejudice that should be cognizable in a case like this, since you didn't know anything about this indictment. And what would have been your -- what's your answer to their claim of no prejudice?

MR. SHEPPARD: My answer to their claim of no prejudice is that there is prejudice.

QUESTION: You at least have to -- you at least have to get up to even-steven with them, don't you?

MR. SHEPPARD: Yes, and I have 17 missing tapes, I have a missing critical witness. This individual --

QUESTION: This is on -- this, then, is prejudice at the trial?

MR. SHEPPARD: Prejudice at the trial. Additionally --

QUESTION: There's no other prejudice?

MR. SHEPPARD: No. There is further prejudice.

QUESTION: What?

MR. SHEPPARD: The interruption of someone's life, 8-1/2 years later, is prejudicial. A young person, for example, who at that time was eligible for treatment under the Young Offender Act, which is very preferential treatment, had he been put on notice while he was incarcerated for 8 months in the Panamanian jail, when he was still eligible for treatment under that act, if the Government had put him on notice he could have triggered a treaty, a prisoner-transfer treaty to this country, to allow him to serve his time here and also to get on with what he's going to have to get on with, and that is the prosecution of this case.

QUESTION: Did you make that argument in the court of appeals or in the district court?

MR. SHEPPARD: Yes.

QUESTION: With respect to the tapes and the witness, is it correct that you have no idea whether they would have been anything exculpatory either in the tapes or in the testimony of the witness?

MR. SHEPPARD: The only thing that I know about the tapes, Justice Souter, are some DEA 6 reports that were prepared, and I think -- and it didn't deal with all -- there were 17 tapes. It didn't deal with all of the tapes.

Most of those tapes dealt with the later transactions, and the only tapes that dealt with my client dealt with 5.7 grams of cocaine, so that I think that arguably those tapes could have shown his very peripheral involvement in maybe a separate conspiracy. But I'm not sure that that was his voice on those tapes.

I've never heard the tapes. They're not transcripts of the tapes, they are just summaries of the tapes made contemporaneous by somebody, but they do not tell me the things that I know as an advocate rendering effective assistance of counsel that I have to know about tapes in order to properly advise my client and to defend those tapes. Tapes are very, very evasive and elusive type of evidence, as recent trials show.

QUESTION: Mr. Sheppard, why should -- why should the criterion for whether the Government is responsible for this sad state of affairs be whether they found and arrested him in time?

Why -- it's a sad state of affairs only because he does not know of the outstanding indictment. Why isn't it enough if the Government took reasonable action that would, in the normal course, have advised him of the existence of the indictment? Why wouldn't that be enough?

If that is enough, why isn't going to his last known address and telling his mother that there is an indictment outstanding and that the Government would like him to appear to stand trial, why isn't that enough?

MR. SHEPPARD: Perhaps if that was all in the record that there was, that would have been enough. I wouldn't really want to make that concession. But after all, the United States State Department was located exactly two blocks from the DEA office in Panama for 8 months, and the DEA -- I mean, the State Department employees of this Government were going to see Marc Doggett on a regular basis.

QUESTION: But that assumes that they have an obligation to find and arrest this man.

MR. SHEPPARD: They do, under Barker.

QUESTION: For the purpose of the interest that you're concerned about in this case, it seems to me their only obligation is to make sure that he gets notice of the fact that there's an indictment so that he may come and get the prompt trial to which he's entitled. And I don't know why going to the last known address, telling his mother about it, doesn't fulfill that obligation.

Thereafter, maybe they were negligent, as good cops, in not arresting him sooner, and that's something for which they're liable to the rest of the public for, but I don't know why they're under any special liability to him for that.

MR. SHEPPARD: I think it's important to recall the record that there was one trip to his mother, who I indicated earlier is not an American. She is a Colombian, and they communicated to her, and there's a great dispute in the record and some confusion in the record about what she was told.

The DEA agent testified that he was told by these two State officers, who never testified below, that they told her that he was wanted. She testified differently. So there's a conflict. Of course, the Government wants it both ways.

Respectfully, they never made another trip to that -- to that familial home over the next 8-1/2 years, and those folks were there, and had they come back 2-1/2 years later I suspect that we wouldn't be here, and we wouldn't be here if the Government had carried out its duty as we understand that duty in Smith v. Hooey to in due diligence seek to apprehend fugitives.

QUESTION: Normally when you have an obligation to get notice to somebody, if the obligation can be satisfied by publication in the paper you publish it once. You don't have to go publishing it until the person appears, or if it -- if it -- if the notice can be given by mail, you mail to the last known address. You don't have to continue mailing and mailing until the person shows up.

I mean, if the problem here is that this person didn't have the notice so that he could take advantage of his -- of his right to enjoy -- a strange word, to enjoy -- a speedy trial, if that's the problem, it seems to me we should simply ask, did the Government take reasonable steps to get notice to him, and if they did that, if they did it only once that ought to be good enough.

MR. SHEPPARD: And the question is, it's on this record with their -- the proximity to Mr. Doggett for the 8 months that he was in Panama, is dropping by his house and having a chat with his mother adequate notice, and respectfully, for any other legal proceedings, I would submit that it would not be, sir.

It is inadequate based on the opportunities that were available to the Government. They bumbled around putting him in different computers, not knowing that he would automatically be deleted from some of those computers. Concededly, when he came through JFK he was in the NCI computer.

I thought it interesting in the prior argument before lunch, when counsel for the Government told you that certainly we would know if people came to our shores. Well, if that's the case and the Government says that, why doesn't Marc -- didn't Marc Doggett get arrested in 1982?

QUESTION: No fair using other cases.

(Laughter.)

QUESTION: I'm sure that somewhere in the Government somebody knew it, but the people who were responsible for arresting him maybe didn't.

MR. SHEPPARD: The people that were responsible for arresting him, I would respectfully submit, impacted on the other Government entities actions by fabricating three reports 24 months after the fact, 32 months after the fact, and 36 months after the fact. And these fabricated reports contribute to a prejudiced analysis. You cannot be free from prejudicial conduct to others if you act in bad faith, and I think that the core of that was candidly testified to by that DEA agent. We asked him.

QUESTION: You're back to the bad faith argument.

MR. SHEPPARD: I'm suggesting that bad faith equals prejudice when you take the collective bad faith actions in this case. And I think the easy way for this Court --

QUESTION: To say bad faith equals prejudice certainly is equating two words that ordinarily are not. If bad faith refers to the state of mind with which an actor goes about doing something, prejudice refers to the effect of something on someone else.

MR. SHEPPARD: In 1985, 3 years after Marc Doggett left Panama, the DEA agent who was the case agent in Jacksonville, Florida, coincidentally got transferred there. When he got there, there wasn't one shred of paper in Panama on Marc Doggett. It had been destroyed.

So maybe my choice of words is wrong, but if that file were available -- and it wasn't Marc Doggett that destroyed it; it was the Government that destroyed it -- perhaps he could come forward and articulate the prejudice that the Government contends that we ought to be able to articulate, despite Moore v. Arizona, despite Barker v. Wingo.

Neither -- one case says prejudice is not absolutely required; the other one says emphatically it's not required. The reason we articulate to this Court a very narrow rule -- and it would enhance the public's interest in speedy trial. This idea of a speedy trial is not just for a criminal defendant, it is for the public. If you follow our bright line rule, it will give the Government the incentive not to bungle old cases, and that incentive is important.

QUESTION: Will you give me your bright line rule again.

MR. SHEPPARD: When, as in a case such as this, that the time of the delay from indictment to arrest exceeds the statute of limitations, then the defendant is not required to prove prejudice, and the burden shifts to the Government to prove no prejudice. And we respectfully submit --

QUESTION: And when -- when it's the Government's fault. I mean, if he's on the lam for 5 years, hiding from the Government --

MR. SHEPPARD: No, no. Absolutely. No.

QUESTION: It's rather important.

MR. SHEPPARD: A component of our rule -- and I thought I'd articulated it. Let me state it one more time. And I submit that it would eliminate a lot of the impossible arguments that occur in these old cases, and it is in the interest of the public, it is in the interest of the Government, and it's in the interest of the individual criminal defendant.

In a case such as this, where a defendant has no knowledge -- when he has no knowledge that he has been indicted or charged, and the time equal to the statute of limitations passes prior to his arrest, then he is not required to prove prejudice, and indeed the burden shifts to the Government to prove no prejudice. No one is harmed, everyone is -- individual and respective interest is enhanced, and I urge the Court to adopt that rule and reverse this conviction.

QUESTION: Thank you, Mr. Sheppard.

Mr. Mueller, we'll hear now from you.

ORAL ARGUMENT OF ROBERT S. MUELLER, III ON BEHALF OF THE UNITED STATES

MR. MUELLER: Mr. Chief Justice, and may it please the Court:

This Court traditionally has looked at the four-pronged test of Barker v. Wingo in resolving issues relating to the deprivation or alleged deprivation of a Sixth Amendment speedy trial violation.

Those four factors identified in Barker are the length of the delay, the cause of the delay, the defendant's assertion of their right to a speedy trial, and prejudice. And we submit that the Eleventh Circuit and the magistrate before entered into the appropriate balancing test set out in Barker to determine that there was no violation of Mr. Doggett's Sixth Amendment right to a speedy trial in this case.

QUESTION: Are you -- are you in complete agreement with the analysis below?

MR. MUELLER: I am not in complete agreement --

QUESTION: I didn't think you were.

MR. MUELLER: -- with my counsel's analysis. There are a number of areas in which I think we part company, which I would hope to explore.

QUESTION: I mean with the -- with the analysis of the court of appeals.

MR. MUELLER: There are areas in which we disagree with the analysis --

QUESTION: Yes, all right.

MR. MUELLER: -- of the court of appeals.

QUESTION: And I'm sure you'll let us know about that.

(Laughter.)

MR. MUELLER: Turning to the first factor, and that is the length of delay, the Court traditionally looks at this factor as a triggering mechanism, and indeed below we indicated that the length of delay in this case is a triggering mechanism. But as we stated in our brief, this case is somewhat unique, in as much as those core concerns of the Sixth Amendment were not implicated for the period between the time of the indictment in 1980 and the time of the arrest in 1988.

Those core concerns being the fact that Mr. Doggett suffered no restraints on his liberty, he was not incarcerated, he suffered no anxiety, no humiliation. He knew not, allegedly, of the indictment, and the pending indictment had no effect on his life until the time that he was arrested.

QUESTION: Mr. Mueller, do you think the concerns that underlie the policy of repose and the statutes of limitation have any relevance at all to this case?

MR. MUELLER: Only to the extent that they play in the evaluation of the four factors that I've identified and that were identified in Barker v. Wingo.

QUESTION: I'm talking about evaluative factor number 1. Is that even relevant, that there -- that some appointed time should come when a citizen no longer has to worry about things that happened long ago?

MR. MUELLER: I do not believe that particular concern is articulated in the Constitution. I do not --

QUESTION: I'm not asking you to --

MR. MUELLER: -- believe that the Constitution --

QUESTION: You don't think it should play any part in the analysis?

MR. MUELLER: I do not, except the -- on the fourth prong, where one looks at prejudice.

QUESTION: Well, none of that --

QUESTION: I take it the statute -- the statute had not run here because he was a few -- he was abroad?

MR. MUELLER: The statute had not run because it was tolled at the time of his indictment in 1980.

QUESTION: And what tolled it?

MR. MUELLER: The filing of the indictment tolled the statute of limitations.

QUESTION: Okay, yeah.

QUESTION: You indicated that the length of time was not articulated in the Constitution. I take it none of the concerns you rest upon are reflected in the Constitution either?

MR. MUELLER: That is so, and the concerns articulated are those articulated by this Court in previous cases as supporting or giving body -- giving body to that Sixth Amendment right to a speedy trial.

QUESTION: But you -- you don't assert that that's the end of the case? You're saying, factor 1, there is nothing at all, so we then --

MR. MUELLER: Yes.

QUESTION: We then move on the other factors?

MR. MUELLER: You move on to factor --

QUESTION: Each factor is worth 25 percent, or how does this work?

MR. MUELLER: No, it depends on --

QUESTION: You need all four present, or two out of four?

MR. MUELLER: No --

QUESTION: Is there any -- is there any way we go about this at all?

MR. MUELLER: Unfortunately, and I understand from the dialogue with counsel in cases such as a determination of whether or not there's been a deprivation of the speedy trial right, it is fact bound, because in order to give substance to that particular right one has to look at the facts of a particular case and where it is on the continuum.

QUESTION: Although it's fact bound, factor 1 is a crucial factor. If none of the interests that, as you say, the -- the speedy trial guarantee is intended to serve is affected, end of the case. But you don't want to say that.

MR. MUELLER: We are --

QUESTION: You want to go on and consider the other three factors to some extent in this case.

MR. MUELLER: In this particular case I think the Court has not addressed the circumstance where a defendant does not know about an indictment and whether or not that defendant is accused when he has not suffered the humiliation or public scorn which comes from a knowing indictment.

One could push that the Court say that the Sixth Amendment right does not come into play until such time as that person is actually brought into court to face the charges. However, we're not --

QUESTION: Well, are you asking us to --

MR. MUELLER: -- asking the Court to go that far.

QUESTION: Do that? Are you asking us to do that?

MR. MUELLER: We are not asking the Court to go that far in this case.

QUESTION: Under your theory, would length of the delay and Government negligence alone, those two factors, ever, in any case, amount to a violation of the speedy trial clause?

MR. MUELLER: I'm sorry, Government delay and --

QUESTION: The delay -- a long delay and Government negligence --

MR. MUELLER: In and of itself --

QUESTION: Those two factors.

MR. MUELLER: -- I don't believe so. Not alone.

QUESTION: What's missing?

MR. MUELLER: The defendant's assertion of the right, and prejudice.

QUESTION: Well, assuming he's asserting the right, of course.

MR. MUELLER: If the defendant --

QUESTION: But you think the crucial thing is prejudice in every case?

MR. MUELLER: I think it is important to look at prejudice in every case, but this Court has found in Moore v. Arizona that you can have cases -- there are those cases, as was the case in Moore v. Arizona, where the defendant can successfully have the case dismissed under the Sixth Amendment right as a result of the Court finding that the other three factors weighed heavily against the Government -- the length of delay, the reason for the delay, and the defendant's assertion, and the defendant did not have to -- would not have to, in that context, prove prejudice. So the Court --

QUESTION: And it wouldn't --

QUESTION: So it is --

QUESTION: I'm sorry.

QUESTION: It is possible, then, that length of delay and Government negligence alone will be enough, if we follow Moore?

MR. MUELLER: If you follow Moore, yes, that is -- that is possible.

QUESTION: It's your intent to leave the Sixth Amendment speedy trial on the very much ad hoc, fact-bound state in which it now is, I take it?

MR. MUELLER: Yes. We're asking for the Court to affirm the Eleventh Circuit's opinion and not attempting to drive the Sixth Circuit law past where it has been placed principally by Barker v. Wingo, which is guidance to each court who looks at a problem similar to this.

As to those factors that are critically important, it is not -- they are not the only factors the court must look to, but in order to give body, substance to that Sixth Amendment right, one has to identify, those -- that particular factor which plays a prominent role in that particular case.

In Barker v. Wingo, as an example, the defendant's failure to assert his right in that particular case was critical, even though he'd spent time incarcerated, even though the Government had sought the delay in order to enable it to better its case by having a co-defendant testify, and that particular factor in that case was the prominent factor.

QUESTION: What made it the factor in that case? I mean, why does that -- what makes it the central factor in a particular case?

MR. MUELLER: In that -- on that particular case it appeared from the opinion that the defendant wanted it both ways. He was claiming a violation of a Sixth Amendment right, but it was clear from the record in that case that he had concurred in a substantial portion of the delay in order to better his position, so the court found -- I think it can be read from the opinion -- that the defendant did not effectively carry the burden of asserting his right.

QUESTION: Well, that's almost a waiver theory. That -- I'm not sure that has much to do whether he asserted the right or not.

MR. MUELLER: The Court --

QUESTION: I take it you would say that the length of -- the length of delay should never be a basis alone to prove prejudice in his defense at trial?

MR. MUELLER: That's correct. We would -- we would say that. One has to look at what exactly occurred during that delay. What was the reason for the delay? And that is --

QUESTION: No presumption of prejudice at trial based on delay?

MR. MUELLER: It should not follow at all. And I would -- I do part company with counsel in terms of who bears the burden of showing prejudice. And who should bear the burden of showing prejudice?

The Government would have a very difficult time in proving a negative. How does the Government prove an absence of prejudice when the defendant is the one who is in control of the facts of the case, understands what his or her defense might be. What counsel is asking the Court to do --

QUESTION: Well, the Government has to do this an awful lot of times in various situations.

MR. MUELLER: Not in the area of -- not in the -- I'm unaware of an occasion where the burden has been placed on the Government to prove an absence of prejudice.

QUESTION: Well, you're asking him to prove prejudice from tapes that are absent from existence at this point.

QUESTION: We may hear of one.

MR. MUELLER: That's correct. The defendant was a participant on those tapes. If the defendant has some reason to believe --

QUESTION: Was the defendant a participant on all -- on all of these tapes?

MR. MUELLER: No. He was not a participant. He was a participant on some, but he would know what was said in the course of those conversations, and should be able to articulate if there is something exculpatory in the course of those conversations.

QUESTION: You're arguing that you have a stronger case because he did not know of the indictment?

MR. MUELLER: No. I'm arguing that --

QUESTION: Your case is weaker because he did not know of the indictment? Your case is weaker because he did not know of the indictment?

MR. MUELLER: I have a hard -- I have a difficult time in saying a case is stronger or weaker without looking at the particular factors in the Barker v. Wingo analysis.

QUESTION: Well, I take it that the citizens of this country do have some interest in assurance that there are not pending indictments against them that they don't know about. It's a valid interest, isn't it?

MR. MUELLER: That is, and it goes to the point, I believe, of whether or not the Government in this case was in fact negligent. And one of the areas in which we would take exception with a court of appeals that the Government was negligent. We feel that --

QUESTION: Well, you don't really want us to reexamine that question, surely? I mean, don't we take this case with the finding that the Government was negligent? You didn't petition for certiorari in a cross-petition. Why would we want to upset that?

MR. MUELLER: I'm not asking the Court to upset that.

The point I do want to make is that in evaluating what the responsibility or burden of the Government is in order to apprehend fugitives, one should look not only at the facts of this case, but what standard should be applied. And the standard that I would suggest should be applied is one of reasonableness.

And if an indictment issues the Government does, we will concede, have a responsibility to do -- to take certain steps to bring that individual before the bar of justice. And I would suggest that if the Government knows where that individual is located there is a responsibility to go and find that individual at that place.

If the Government knows where family is located, the Government probably reasonably has a responsibility to go to that place and locate the person. And finally, if the Government believes that --

QUESTION: Of course, they knew where his mother was, didn't they?

MR. MUELLER: And I was going to say that in this particular case we did what was reasonable. Agents went to the house --

QUESTION: You were negligent --

MR. MUELLER: And talked to the mother --

QUESTION: You were negligent but reasonable?

MR. MUELLER: Well, I would -- I would -- I'm not asking the Court to overturn the --

QUESTION: Well, you were -- you were in your brief. I thought you were really dancing away from the trial court's findings, and the counsel for the petitioner said he's stuck with the finding, and I think you are, too.

MR. MUELLER: I don't think that the case rises or falls on whether or not the Eleventh Circuit is correct in its characterization of the facts of this case as negligence. And when this Court has addressed factual situations like this in the past -- in Barker v. Wingo it looked at the facts and not necessarily at the conclusions based on those facts.

QUESTION: As I understand it, the lower court found that the Government was negligent in failing to arrest or apprehend the individual, not necessarily that the Government was negligent in failing to do what was reasonable to get notice to the individual of the pendency of the suit, and the two are quite different things. And if it's the latter rather than the former that triggers a speedy trial obligation, the finding of the court below doesn't necessarily govern.

Doesn't the finding of the court below just go to negligence in failing to apprehend the individual, or does it go to negligence in failing to do what was reasonable to bring the pendency of the indictment to his attention?

MR. MUELLER: No, it does address and focus on the failure to arrest him and does not address the failure to give him notice.

QUESTION: Well, the Government never tries to give somebody notice in advance that we're going to try and catch you later on, do they?

(Laughter.)

MR. MUELLER: Well, it depends on the circumstances.

QUESTION: That's kind of an absurd idea, isn't it? You go out and give them notice -- you've been indicted. A few months from now we'll try and arrest you?

(Laughter.)

MR. MUELLER: It depends on the circumstances.

QUESTION: It would be a pretty good idea, though, if we listened to Mr. Sheppard, wouldn't it?

MR. MUELLER: Well, that's what -- I think Mr. Sheppard and his clients -- that Mr. Sheppard and his clients would certainly support that idea wholeheartedly.

QUESTION: I doubt you'd be here in this argument if you had taken the indictment and you knew exactly where the fellow was and you took the indictment and served it on him and didn't arrest him, and you knew he knew about it and yet you did not do anything about arresting him or trying to try him. You wouldn't he here, would you?

MR. MUELLER: We would not be here. We -- we'd stand with the position that --

QUESTION: So the fact of his not knowing about it is critical.

MR. MUELLER: In this particular case, it makes it unique, yes.

QUESTION: Is there no prejudice in your view by having the defendant's life uprooted after so long a time? You find that that can never be prejudicial?

MR. MUELLER: I think what one looks to is whether or not the delay resulted in excessive prejudice in some fashion, prejudice in addition to that prejudice which would have come from his having been arrested and prosecuted in 1980.

In 1980, he presumably not only would have been arrested and prosecuted but quite probably, as Mr. Sheppard has indicated, would have spent substantial time in incarceration. So there was no additional prejudice attributable to the delay in this case. Yes, his life was disputed. It would have been disrupted in 1980.

Now, turning back to the factor of prejudice, and in particular the prejudice articulated by -- or alleged prejudice articulated by counsel with regard to the tapes. As I've indicated, those tapes -- on the one hand there was no allegation or assertion by defendant below that there was anything specifically exculpatory on those tapes.

Secondly, with regard to the confidential informant there was and is an indication in the record that had this case gone to trial then he would have been available, and thirdly, the defendant did plead guilty in this case, and has acknowledged his guilt.

QUESTION: May I ask about the tapes again? I guess nobody knows what's on the tapes, but if you rely in part on the fact that he should be responsible for bringing forth any relevant information on the tapes, wouldn't that be somewhat harder after 8 years than it would be probably after they were transcribed?

MR. MUELLER: I would say that over a period of time, yes, it might be more difficult to remember what happened in any particular instance. Yes.

QUESTION: And the tapes may not be in existence.

MR. MUELLER: The tapes may not be in existence at that point in time, or at the point in time when it was going to go to trial. That is true. But there has to be an affirmative showing that there is something exculpatory, something that would adversely affect his ability to obtain a fair trial, and that showing was not made in this case.

QUESTION: What about his argument on the nontrial argument that had you not been negligent and gotten to him earlier, he might have had the advantage of some statutory mechanisms that are no longer available?

MR. MUELLER: The Eleventh Circuit disposed of his argument that he would have been entitled by -- to take advantage of the Youth Offender Act by reason of the fact that he voluntarily absented himself from the country until such time as he was 22 and was not thereby -- at that late age that act was not available to him. So the Eleventh Circuit in our opinion --

QUESTION: Yeah, but he says -- he says that if you'd have -- he was in jail. He says if -- that you should have known he was in jail, and if you'd have gotten to him soon enough he could have -- he could have triggered some mechanisms that would have brought him up here --

MR. MUELLER: Well, the --

QUESTION: -- to stand trial. Isn't that what --

MR. MUELLER: Again, what we had done is what is reasonable under the circumstances. Again, if you're going to the notice issue as opposed to the objective of arresting him, we had satisfied whatever obligation there is by going to his house and telling his mother that there was an outstanding indictment against him. And going to the time that he was in Panama, if you look at what Agent Driver, the agent on the case, understood at that time, he understood that when Mr. Doggett would be -- were released from incarceration in Panama, the Attorney General of Panama would expel him to the United States.

And so the agent who was in charge of that case accomplished what was reasonable under the circumstances, given what he understood the case to be. And the Constitution does not put, in our minds, a further burden on the Government either with regard to notification or with regard to a duty to --

QUESTION: But you must have known he wasn't about to be in jail for 8-1/2 years.

MR. MUELLER: Well, it was the assumption of the agent at that time that --

QUESTION: Eight-and-a-half years --

MR. MUELLER: That he was going to be for a substantial period of time, based on his experience with those who are incarcerated in Panama as a result of drug trafficking.

QUESTION: Well, the -- when did -- how do you suppose the court below decided that the United States was negligent in -- when did the delay, and why did it become negligent?

MR. MUELLER: Well, it -- if one looks at the --

QUESTION: It was after -- after he got back in the United States that they focused on it?

MR. MUELLER: The characterization of negligence I think flows from counsel's deft argument that there were things the Government could have done and should have done as opposed to looking at what was done and the reason why it was done in this circumstance. The magistrate --

QUESTION: Mostly focusing on the period after he arrived back in this country.

MR. MUELLER: That's correct, but if you look at -- if you look at the particular segments of time. The time he was in Panama, the agents legitimately believed that once he was believed from the Panamanian jail he would be expelled back to the United States. They had the assurances of the Panamanian Attorney General.

Thereafter, when the agent went down in 1985, he found, still there, papers of Mr. Doggett, and they indicated that he had a Colombian address and that he was using his mother's Colombian surname as his alias, and accordingly the agent at that time believed that Mr. Doggett would be in Colombia. Also --

QUESTION: And so you saved your case just by a computer.

MR. MUELLER: It's not a question of saving the case, Your Honor --

QUESTION: His name just came up on a computer somewhere?

MR. MUELLER: No.

QUESTION: How come you never looked him up?

MR. MUELLER: Well, he was -- in 1988 he was still in NCIC as a fugitive and there was a marshals' sweep, as one would call it --

QUESTION: Well, that's a -- yeah.

MR. MUELLER: And they did find him at that time, yes, but he came back into the United States without having gone through -- without having been picked up when he came back in 1982.

QUESTION: Mr. Mueller, you mentioned on the point of prejudice that he had after all pleaded guilty. Did you mean to suggest by that that in any case in which there is a guilty plea there cannot be a finding of prejudice on the assumption that prejudice goes to issues of guilt and innocence and the consequences of guilt, and since one is pleading guilty, by definition that kind of prejudice could not be present, or could not at least be present in some sufficient quantity?

MR. MUELLER: There is some case law to support that. I don't think this Court has ever addressed that particular issue. What we do say --

QUESTION: Are you urging that on us now?

MR. MUELLER: I do not think the Court has to reach that in this particular -- reach that issue in this particular case.

However, when one talks about prejudice, actual prejudice to a defendant's case, that prejudice to be serious and to be -- given a great deal of weight should bear on the guilt or innocence of that individual. And by pleading guilty in any circumstance like this -- and I'd go to the circumstances that were the subject of the plea. Not the 40 kilos that was brought out, but the circumstance of the plea, which was a hand-to-hand distribution of cocaine and money.

QUESTION: Well, Mr. Mueller, was there any assurance in connection with taking this plea that it was without prejudice to the right to litigate this question of speedy trial violation?

MR. MUELLER: That -- under Rule 11, it was.

QUESTION: And wouldn't your argument undercut that agreement? I mean --

MR. MUELLER: No.

QUESTION: No?

MR. MUELLER: I do not believe that's the case, because one can urge --

QUESTION: Well, if you suggest a blanket rule, that if there's a guilty plea that cuts you off, then it certainly isn't going to do any good to preserve the right to litigate it, is it?

MR. MUELLER: Well, it may cut you off as to certain allegations of prejudice with regard to your guilt or the proof of your guilt or innocence on particular elements of the case. It does not preclude you from alleging -- asserting prejudice from the delay other than that which would bear directly upon your guilt or innocence. And it would make a difference as to how the Court looked to that.

I would ask the Court to look back and look at the facts of this case and weighing what the Government did, which we believe to be reasonable under the circumstances, against the absence or lack of prejudice. And one has the impression that there as no injustice done in this particular case, and indeed the length of time inured to Mr. Doggett's defense in that -- or, to his benefit in that I think it quite probable that, had he been arrested earlier, he would have spent a substantial period of time incarcerated.

QUESTION: May I ask if you think that argument is consistent with the Court's holding in the Strunk case?

MR. MUELLER: I am not certain of that, Your Honor.

QUESTION: Well, the Strunk case was one in which, during the period that he was -- the delay occurred he was incarcerated on another offense, and the court of appeals said we'll chop that off, a period of double service, off of the remedy instead of dismissing the indictment, and the Court reversed unanimously and said no, you -- the remedy regardless of the penalty and the amelioration of the previous penalty through the delay. The remedy is to dismiss the indictment. You don't look at the amount of the punishment, the kind of factor you're looking at here.

MR. MUELLER: Well, I think that is not one of the factors that one looks at. I'm just saying that the assertion of prejudice from the delay --

QUESTION: So in analyzing the case we should just assume he would have gotten precisely the same sentence when he was tried --

MR. MUELLER: Yes.

QUESTION: And it would be the same?

MR. MUELLER: Yes.

QUESTION: Okay.

MR. MUELLER: Yes. There is dicta in cases which say that under similar circumstances the delay can inure to the benefit of the defendant in a number of ways, one of which is it allows the defendant to show to the Court that he or she has resumed a normal lifestyle and is an honest citizen. So in --

QUESTION: May I just sum up in this -- sum up your argument in this way? You've agreed that the other side does not have to prove prejudice, so what you're saying is that the three other factors don't add up to enough in the defendant's favor to justify any relief?

MR. MUELLER: That is correct. That is correct.

And unless there are further questions, Your Honor, I would ask that you affirm the Eleventh Circuit's ruling in this case.

QUESTION: Thank you, Mr. Mueller.

Mr. Sheppard, do you have rebuttal? You have 1 minute left.

MR. SHEPPARD: I think not. Thank you.

CHIEF JUSTICE REHNQUIST: Very well. The case is submitted.

(Whereupon, at 1:55 p.m., the case in the above-entitled matter was submitted.)