431 U.S.

783
97 S.Ct. 2044
52 L.Ed.2d 752

UNITED STATES, Petitioner,

v.
Eugene LOVASCO, Sr.
No. 75-1844.
Argued March 21-22, 1977.
Decided June 9, 1977.
Rehearing Denied Oct. 3, 1977.

See 434 U.S. 881, 98 S.Ct. 242.

Syllabus
More than 18 months after federal criminal offenses were alleged to have
occurred, respondent was indicted for committing them. Beyond an
investigative report made a month after the crimes were committed, little
additional information was developed in the following 17 months.
Claiming that the preindictment delay, during which material defense
testimony had been lost, deprived him of due process, respondent moved
to dismiss the indictment. The District Court, which found that the delay
had not been explained or justified and was unnecessary and prejudicial to
respondent, granted the motion to dismiss. The Court of Appeals affirmed,
concluding that the delay, which it found was solely attributable to the
Government's hope that other participants in the crime would be
discovered, was unjustified. Held : The Court of Appeals erred in
affirming the District Court's dismissal of the indictment. Pp. 788-797.
(a) Although the Speedy Trial Clause of the Sixth Amendment is
applicable only after a person has been accused of a crime and statutes of
limitations provide " 'the primary guarantee against bringing overly stale
criminal charges,' " United States v. Marion, 404 U.S. 307, 322, 92 S.Ct.
455, 464, 30 L.Ed.2d 468, those statutes do not fully define a defendant's
rights with respect to events antedating the indictment, and the Due
Process Clause has a limited role to play in protecting against oppressive
delay. Pp. 788-789.

(b) While proof of prejudice makes a due process claim ripe for
adjudication, it does not automatically validate such a claim, and the
reasons for the delay must also be considered. Pp. 789-790.
(c) To prosecute a defendant following good-faith investigative delay, as
apparently existed in this case, does not deprive him of due process even if
his defense might have been somewhat prejudiced by the lapse of time.
Prosecutors are under no duty to file charges as soon as probable cause
exists but before they are satisfied that they will be able to establish a
suspect's guilt beyond a reasonable doubt. Nor is there a constitutional
requirement that charges must be filed after there is sufficient evidence to
prove such guilt but before the investigation is complete. An immediate
arrest or indictment might impair the prosecutors' ability to continue the
investigation or obtain additional indictments, would pressure prosecutors
into resolving doubtful cases in favor of early (and possibly unwarranted)
prosecutions, and would preclude full consideration of the desirability of
not prosecuting in particular cases. Pp. 790-796.
8 Cir., 532 F.2d 59, reversed.
Louis Gilden, St. Louis, for the respondent.
John P. Rupp, Washington, D. C., for the petitioner.
Mr. Justice MARSHALL delivered the opinion of the Court.

We granted certiorari in this case to consider the circumstances in which the

Constitution requires that an indictment be dismissed because of delay between
the commission of an offense and the initiation of prosecution.

* On March 6, 1975, respondent was indicted for possessing eight firearms

stolen from the United States mails, and for dealing in firearms without a
license. The offenses were alleged to have occurred between July 25 and
August 31, 1973, more than 18 months before the indictment was filed.
Respondent moved to dismiss the indictment due to the delay.

The District Court conducted a hearing on respondent's motion at which the

respondent sought to prove that the delay was unnecessary and that it had
prejudiced his defense. In an effort to establish the former proposition,
respondent presented a Postal Inspector's report on his investigation that was
prepared one month after the crimes were committed, and a stipulation
concerning the post-report progress of the probe. The report stated, in brief, that

within the first month of the investigation respondent had admitted to

Government agents that he had possessed and then sold five of the stolen guns,
and that the agents had developed strong evidence linking respondent to the
remaining three weapons.1 The report also stated, however, that the agents had
been unable to confirm or refute respondent's claim that he had found the guns
in his car when he returned to it after visiting his son, a mail handler, at work.2
The stipulation into which the Assistant United States Attorney entered
indicated that little additional information concerning the crimes was
uncovered in the 17 months following the preparation of the Inspector's report.3
4

To establish prejudice to the defense, respondent testified that he had lost the
testimony of two material witnesses due to the delay. The first witness, Tom
Stewart, died more than a year after the alleged crimes occurred. At the hearing
respondent claimed that Stewart had been his source for two or three of the
guns. The second witness, respondent's brother, died in April 1974, eight
months after the crimes were completed. Respondent testified that his brother
was present when respondent called Stewart to secure the guns, and witnessed
all of respondent's sales. Respondent did not state how the witnesses would
have aided the defense had they been willing to testify.4

The Government made no systematic effort in the District Court to explain its
long delay. The Assistant United States Attorney did expressly disagree,
however, with defense counsel's suggestion that the investigation had ended
after the Postal Inspector's report was prepared. App. 9-10. The prosecutor also
stated that it was the Government's theory that respondent's son, who had
access to the mail at the railroad terminal from which the guns were "possibly
stolen," id., at 17, was responsible for the thefts, id., at 13.5 Finally, the
prosecutor elicited somewhat cryptic testimony from the Postal Inspector
indicating that the case "as to these particular weapons involves other
individuals"; that information had been presented to a grand jury "in regard to
this case other than . . . (on) the day of the indictment itself"; and that he had
spoken to the prosecutors about the case on four or five occasions. Id., at 20.

Following the hearing, the District Court filed a brief opinion and order. The
court found that by October 2, 1973, the date of the Postal Inspector's report,
"the Government had all the information relating to defendant's alleged
commission of the offenses charged against him," and that the 17-month delay
before the case was presented to the grand jury "had not been explained or
justified" and was "unnecessary and unreasonable." The court also found that "
(a)s a result of the delay defendant has been prejudiced by reason of the death
of Tom Stewart, a material witness on his behalf." Pet. for Cert. 14a.
Accordingly, the court dismissed the indictment.

(1) The Government appealed to the United States Court of Appeals for the
Eighth Circuit. In its brief the Government explained the months of inaction by
stating:

"(T)here was a legitimate Government interest in keeping the investigation

open in the instant case. The defendant's son worked for the Terminal Railroad
and had access to mail. It was the Government's position that the son was
responsible for the theft and therefore further investigation to establish this fact
was important.

". . . Although the investigation did not continue on a full time basis, there was
contact between the United States Attorney's office and the Postal Inspector's
office throughout . . . and certain matters were brought before a Federal Grand
Jury prior to the determination that the case should be presented for indictment
. . . ." Brief for United States in No. 75-1852 (CA8), pp. 5-6.

10

The Court of Appeals accepted the Government's representation as to the

motivation for the delay, but a majority of the court nevertheless affirmed the
District Court's finding that the Government's actions were "unjustified,
unnecessary, and unreasonable." 532 F.2d 59, 61 (1976). The majority also
found that respondent had established that his defense had been impaired by the
loss of Stewart's testimony because it understood respondent to contend that
"were Stewart's testimony available it would support (respondent's) claim that
he did not know that the guns were stolen from the United States mails." Ibid.
The court therefore affirmed the District Court's dismissal of the three
possession counts by a divided vote.6

11

We granted certiorari, 429 U.S. 884, 97 S.Ct. 233, 50 L.Ed.2d 164, and now
reverse.7

II
12

(2, 3) In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468
(1971), this Court considered the significance, for constitutional purposes, of a
lengthy preindictment delay. We held that as far as the Speedy Trial Clause of
the Sixth Amendment is concerned, such delay is wholly irrelevant, since our
analysis of the language, history, and purposes of the Clause persuaded us that
only "a formal indictment or information or else the actual restraints imposed
by arrest and holding to answer a criminal charge . . . engage the particular
protections" of that provision. Id., at 320, 92 S.Ct., at 463.8 We went on to note
that statutes of limitations, which provide predictable, legislatively enacted

limits on prosecutorial delay, provide " 'the primary guarantee, against bringing
overly stale criminal charges.' " Id., at 322, 92 S.Ct., at 464, quoting United
States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966).
But we did acknowledge that the "statute of limitations does not fully define
(defendants') rights with respect to the events occurring prior to indictment,"
404 U.S., at 324, 92 S.Ct., at 465, and that the Due Process Clause has a limited
role to play in protecting against oppressive delay.
13

(4) Respondent seems to argue that due process bars prosecution whenever a
defendant suffers prejudice as a result of preindictment delay. To support that
proposition respondent relies on the concluding sentence of the Court's opinion
in Marion where, in remanding the case, we stated that "(e)vents of the trial
may demonstrate actual prejudice, but at the present time appellees' due process
claims are speculative and premature." Id., at 326, 92 S.Ct., at 466. But the
quoted sentence establishes only that proof of actual prejudice makes a due
process claim concrete and ripe for adjudication, not that it makes the claim
automatically valid. Indeed, two pages earlier in the opinion we expressly
rejected the argument respondent advances here:

14

"(W)e need not . . . determine when and in what circumstances actual prejudice
resulting from preaccusation delays requires the dismissal of the prosecution.
Actual prejudice to the defense of a criminal case may result from the shortest
and most necessary delay; and no one suggests that every delay-caused
detriment to a defendant's case should abort a criminal prosecution." Id., at 324325, 92 S.Ct., at 465. (Footnotes omitted.)

15

Thus Marion makes clear that proof of prejudice is generally a necessary but
not sufficient element of a due process claim, and that the due process inquiry
must consider the reasons for the delay as well as the prejudice to the accused.

16

(5, 6) The Court of Appeals found that the sole reason for the delay here was "a
hope on the part of the Government that others might be discovered who may
have participated in the theft . . . ." 532 F.2d, at 61. It concluded that this hope
did not justify the delay, and therefore affirmed the dismissal of the indictment.
But the Due Process Clause does not permit courts to abort criminal
prosecutions simply because they disagree with a prosecutor's judgment as to
when to seek an indictment. Judges are not free, in defining "due process," to
impose on law enforcement officials our "personal and private notions" of
fairness and to "disregard the limits that bind judges in their judicial function."
Rochin v. California, 342 U.S. 165, 170, 72 S.Ct. 205, 209, 96 L.Ed. 183
(1952). Our task is more circumscribed. We are to determine only whether the
action complained of here, compelling respondent to stand trial after the

Government delayed indictment to investigate further violates those

"fundamental conceptions of justice which lie at the base of our civil and
political institutions," Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340,
342, 79 L.Ed. 791 (1935), and which define "the community's sense of fair play
and decency," Rochin v. California, supra, 342 U.S., at 173, 72 S.Ct. at 210.
See also Ham v. South Carolina, 409 U.S. 524, 526, 93 S.Ct. 848, 850, 35
L.Ed.2d 46 (1973); Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289,
86 L.Ed. 166 (1941); Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103,
104, 71 L.Ed. 270 (1926); Hurtado v. California, 110 U.S. 516, 535, 4 S.Ct.
111, 120, 28 L.Ed. 232 (1884).
17

(7) It requires no extended argument to establish that prosecutors do not deviate

from "fundamental conceptions of justice" when they defer seeking indictments
until they have probable cause to believe an accused is guilty; indeed it is
unprofessional conduct for a prosecutor to recommend an indictment on less
than probable cause.9 It should be equally obvious that prosecutors are under
no duty to file charges as soon as probable cause exists but before they are
satisfied they will be able to establish the suspect's guilt beyond a reasonable
doubt. To impose such a duty "would have a deleterious effect both upon the
rights of the accused and upon the ability of society to protect itself," United
States v. Ewell, supra, 383 U.S., at 120, 86 S.Ct., at 776. From the perspective
of potential defendants, requiring prosecutions to commence when probable
cause is established is undesirable because it would increase the likelihood of
unwarranted charges being filed, and would add to the time during which
defendants stand accused but untried.10 These costs are by no means
insubstantial since, as we recognized in Marion, a formal accusation may
"interfere with the defendant's liberty, . . . disrupt his employment, drain his
financial resources, curtail his associations, subject him to public obloquy, and
create anxiety in him, his family and his friends." 404 U.S., at 320, 92 S.Ct., at
463. From the perspective of law enforcement officials, a requirement of
immediate prosecution upon probable cause is equally unacceptable because it
could make obtaining proof of guilt beyond a reasonable doubt impossible by
causing potentially fruitful sources of information to evaporate before they are
fully exploited.11 And from the standpoint of the courts, such a requirement is
unwise because it would cause scarce resources to be consumed on cases that
prove to be insubstantial, or that involve only some of the responsible parties or
some of the criminal acts.12 Thus, no one's interests would be well served by
compelling prosecutors to initiate prosecutions as soon as they are legally
entitled to do so.13

18

(8) It might be argued that once the Government has assembled sufficient
evidence to prove guilt beyond a reasonable doubt, it should be constitutionally

required to file charges promptly, even if its investigation of the entire criminal
transaction is not complete. Adopting such a rule, however, would have many
of the same consequences as adopting a rule requiring immediate prosecution
upon probable cause.
19

First, compelling a prosecutor to file public charges as soon as the requisite

proof has been developed against one participant on one charge would cause
numerous problems in those cases in which a criminal transaction involves
more than one person or more than one illegal act. In some instances, an
immediate arrest or indictment would impair the prosecutor's ability to continue
his investigation, thereby preventing society from bringing lawbreakers to
justice. In other cases, the prosecutor would be able to obtain additional
indictments despite an early prosecution, but the necessary result would be
multiple trials involving a single set of facts. Such trials place needless burdens
on defendants, law enforcement officials, and courts.

20

Second, insisting on immediate prosecution once sufficient evidence is

developed to obtain a conviction would pressure prosecutors into resolving
doubtful cases in favor of early and possibly unwarranted prosecutions. The
determination of when the evidence available to the prosecution is sufficient to
obtain a conviction is seldom clear-cut, and reasonable persons often will reach
conflicting conclusions. In the instant case, for example, since respondent
admitted possessing at least five of the firearms, the primary factual issue in
dispute was whether respondent knew the guns were stolen as required by 18
U.S.C. 1708. Not surprisingly, the Postal Inspector's report contained no
direct evidence bearing on this issue. The decision whether to prosecute,
therefore, required a necessarily subjective evaluation of the strength of the
circumstantial evidence available and the credibility of respondent's denial.
Even if a prosecutor concluded that the case was weak and further
investigation appropriate, he would have no assurance that a reviewing court
would agree. To avoid the risk that a subsequent indictment would be
dismissed for preindictment delay, the prosecutor might feel constrained to file
premature charges, with all the disadvantages that would entail.14

21

Finally, requiring the Government to make charging decisions immediately

upon assembling evidence sufficient to establish guilt would preclude the
Government from giving full consideration to the desirability of not prosecuting
in particular cases. The decision to file criminal charges, with the awesome
consequences it entails, requires consideration of a wide range of factors in
addition to the strength of the Government's case, in order to determine whether
prosecution would be in the public interest.15 Prosecutors often need more
information than proof of a suspect's guilt, therefore, before deciding whether

to seek an indictment. Again the instant case provides a useful illustration.

Although proof of the identity of the mail thieves was not necessary to convict
respondent of the possessory crimes with which he was charged, it might have
been crucial in assessing respondent's culpability, as distinguished from his
legal guilt. If, for example, further investigation were to show that respondent
had no role in or advance knowledge of the theft and simply agreed, out of
paternal loyalty, to help his son dispose of the guns once respondent discovered
his son had stolen them, the United States Attorney might have decided not to
prosecute, especially since at the time of the crime respondent was over 60
years old and had no prior criminal record.16 Requiring prosecution once the
evidence of guilt is clear, however, could prevent a prosecutor from awaiting
the information necessary for such a decision.
22

(9) We would be most reluctant to adopt a rule which would have these
consequences absent a clear constitutional command to do so. We can find no
such command in the Due Process Clause of the Fifth Amendment. In our view,
investigative delay is fundamentally unlike delay undertaken by the
Government solely "to gain tactical advantage over the accused," United States
v. Marion, 404 U.S., at 324, 92 S.Ct., at 465, precisely because investigative
delay is not so one-sided.17 Rather than deviating from elementary standards of
"fair play and decency," a prosecutor abides by them if he refuses to seek
indictments until he is completely satisfied that he should prosecute and will be
able promptly to establish guilt beyond a reasonable doubt. Penalizing
prosecutors who defer action for these reasons would subordinate the goal of
"orderly expedition" to that of "mere speed," Smith v. United States, 360 U.S.
1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). This the Due Process Clause
does not require. We therefore hold that to prosecute a defendant following
investigative delay does not deprive him of due process, even if his defense
might have been somewhat prejudiced by the lapse of time.

23

(10) In the present case, the Court of Appeals stated that the only reason the
Government postponed action was to await the results of additional
investigation. Although there is, unfortunately, no evidence concerning the
reasons for the delay in the record, the court's "finding" is supported by the
prosecutor's implicit representation to the District Court, and explicit
representation to the Court of Appeals, that the investigation continued during
the time that the Government deferred taking action against respondent. The
finding is, moreover, buttressed by the Government's repeated assertions in its
petition for certiorari, its brief, and its oral argument in this Court, "that the
delay was caused by the government's efforts to identify persons in addition to
respondent who may have participated in the offenses." Pet. for Cert. 14.18 We
must assume that these statements by counsel have been made in good faith. In

light of this explanation, it follows that compelling respondent to stand trial

would not be fundamentally unfair. The Court of Appeals therefore erred in
affirming the District Court's decision dismissing the indictment.
III
24

(11) In Marion we conceded that we could not determine in the abstract the
circumstances in which preaccusation delay would require dismissing
prosecutions. 404 U.S., at 324, 92 S.Ct., at 465. More than five years later, that
statement remains true. Indeed, in the intervening years so few defendants have
established that they were prejudiced by delay that neither this Court nor any
lower court has had a sustained opportunity to consider the constitutional
significance of various reasons for delay.19 We therefore leave to the lower
courts, in the first instance, the task of applying the settled principles of due
process that we have discussed to the particular circumstances of individual
cases. We simply hold that in this case the lower courts erred in dismissing the
indictment.

25

Reversed.

26

Mr. Justice STEVENS, dissenting.

27

If the record presented the question which the Court decides today, I would join
its well-reasoned opinion. I am unable to do so because I believe our review
should be limited to the facts disclosed by the record developed in the District
Court and the traditional scope of review we have exercised with regard to
issues of fact.

28

After a thorough hearing on the respondent's motion to dismiss the indictment

for prejudicial preindictment delay a hearing at which both sides were given
every opportunity to submit evidence concerning the question the District
Court found that "(t)he Government's delay ha(d) not been explained or
justified and (was) unnecessary and unreasonable." On appeal, the Court of
Appeals concurred, noting that the District Court's determination was
"supported by the evidence." 532 F.2d 59, 60-61 (CA8 1976). These concurrent
findings of fact make it improper, in my judgment, for this Court to make its
own determination that "the Government postponed action . . . to await the
results of additional investigation," ante, at 796.1

29

That determination is not supported by the record.2 The majority opinion

correctly points out that there was "no evidence concerning the reasons for

delay in the record," and yet proceeds to accept as fact the representations in
the Government's briefs to the Court of Appeals and to this Court that " 'the
delay was caused by the government's efforts to identify persons in addition to
respondent who may have participated in the offenses.' " Ibid. This finding of a
continuing investigation, which forms the foundation of the majority opinion,
comes from statements of counsel made during the appellate process. As we
have said of other unsworn statements which were not part of the record and
therefore could not have been considered by the trial court: "Manifestly, (such
statements) cannot be properly considered by us in the disposition of (a) case."
Adickes v. Kress & Co., 398 U.S. 144, 157-158, n. 16, 90 S.Ct. 1598, 1608, n.
16, 26 L.Ed.2d 142. While I do not question the good faith of Government
counsel, it is not the business of appellate courts to make decisions on the basis
of unsworn matter not incorporated in a formal record.
30

The findings of the District Court, as approved by the Court of Appeals,

establish four relevant propositions: (1) this is a routine prosecution; (2) after
the Government assembled all of the evidence on which it expects to establish
respondent's guilt, it waited almost 18 months to seek an indictment; (3) the
delay was prejudicial to respondent's defense; and (4) no reason whatsoever
explains the delay. We may reasonably infer that the prosecutor was merely
busy with other matters that he considered more important than this case.

31

The question presented by those facts is not an easy one. Nevertheless, unless
we are to conclude that the Constitution imposes no constraints on the
prosecutor's power to postpone the filing of formal charges to suit his own
convenience, I believe we must affirm the judgment of the Court of Appeals. A
contrary position "can be tenable only if one assumes that the constitutional
right to a fair hearing includes no right whatsoever to a prompt hearing." Moody
v. Daggett, 429 U.S. 78, 91, 97 S.Ct. 274, 281, 50 L.Ed.2d 236 (Stevens, J.,
dissenting). The requirement of speedy justice has been part of the AngloAmerican common-law tradition since the Magna Carta. See id., at 92 n. 5, 97
S.Ct., at 281. It came to this country and was embodied in the early state
constitutions, see the Massachusetts Constitution of 1780, Part I, Art. XI, and
later in the Sixth Amendment to the United States Constitution. As applied to
this case, in which respondent made numerous anxious inquiries of the Postal
Inspectors concerning whether he would be indicted, in which the delay caused
substantial prejudice to the respondent, and in which the Government has
offered no justification for the delay, the right to speedy justice should be
honored.

32

If that right is not honored in a case of this kind, the basic values which the
Framers intended to protect by the Sixth Amendment's guarantee of a speedy

trial, and which motivated Congress to enact the Speedy Trial Act of 1974, will
become nothing more than managerial considerations for the prosecutor to
manipulate.
33

I respectfully dissent.

The report indicated that the person to whom respondent admitted selling five
guns had told Government agents that respondent had actually sold him eight
guns which he, in turn, had sold to one Martin Koehnken. The report also
indicated that Koehnken had sold three of these guns to undercover federal
agents and that a search of his house had uncovered four others. Finally the
report stated that the eighth gun was sold by one David Northdruft (or
Northdurft) to Government agents, and that Northdruft claimed Koehnken had
sold him the gun.
At the hearing on the motion to dismiss, respondent for the first time admitted
that he had possessed and sold eight guns.

The only contrary evidence came from respondent's purchaser who told the
Government investigators that he knew the guns were "hot."

In March 1975, the Inspector learned of another person who claimed to have
purchased a gun from respondent. App. 18. At the hearing the parties disagreed
as to whether this evidence would have been admissible since it did not involve
any of the guns to which the indictment related. Id., at 9-10. In any event, the
Assistant United States Attorney stated that the decision to prosecute was made
before this additional piece of evidence was received. Id., at 19.

Respondent admitted that he had not mentioned Stewart to the Postal Inspector
when he was questioned about his source of the guns. He explained that this
was because Stewart "was a bad tomato" and "was liable to take a shot at me if
I told (on) him." Id., at 13. Respondent also conceded that he did not mention
either his brother's or Stewart's illness or death to the Postal Inspector on the
several occasions in which respondent called the Inspector to inquire about the
status of the probe.

The Inspector's report had stated that there was no evidence establishing the
son's responsibility for the thefts.

The court unanimously reversed the dismissal of a fourth count of the

indictment charging respondent with dealing in firearms without a license since
respondent had not alleged that the missing witnesses could have provided

exculpatory evidence on this charge.

7

In addition to challenging the Court of Appeals' holding on the constitutional

issue, the United States argues that the District Court should have deferred
action on the motion to dismiss until after trial, at which time it could have
assessed any prejudice to the respondent in light of the events at trial. This
argument, however, was not raised in the District Court or in the Court of
Appeals. Absent exceptional circumstances, we will not review it here. See, e.
g., Duignan v. United States, 274 U.S. 195, 200, 47 S.Ct. 566, 568, 71 L.Ed.
996 (1927); Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 330, 87 S.Ct.
1072, 1080, 18 L.Ed.2d 75 (1967).
At oral argument, the Government seemed to suggest that its failure to raise the
procedural question in its brief in the Court of Appeals should be excused
because the proceedings in that court were "skewed" by the fact that the
District Court had based its dismissal solely on Fed.Rule Crim.Proc. 48(b), and
because the issue was raised by the Government in its petition for rehearing. Tr.
of Oral Arg. 7-8, 51. But even assuming that the basis for the District Court's
dismissal could have "skewed" appellate proceedings regarding the procedural
question, the fact is that the opening paragraph of the argument in the
Government's brief below recognized that the only issue before the court was a
due process question, and the remainder of the brief treated that question on the
merits. And even after the Court of Appeals issued its decision based solely on
the Due Process Clause, the Government's petition for rehearing did not
squarely raise the procedural issue as an alternative ground for rehearing the
case en banc.

Marion also holds that Fed.Rule Crim.Proc. 48(b), which permits district courts
to dismiss indictments due to preindictment or postindictment delay, is "limited
to post-arrest situations." 404 U.S., at 319, 92 S.Ct., at 462. Since respondent
was not arrested until after he was indicted, the District Court plainly erred in
basing its decision on this Rule.

ABA Code of Professional Responsibility DR 7-103(A) (1969); ABA Project

on Standards for Criminal Justice, The Prosecution Function 3.9 (App. Draft
1971).

10

To the extent that the period between accusation and trial has been strictly
limited by legislative action, see, e. g., Speedy Trial Act of 1974, 88 Stat. 2076,
18 U.S.C. 3161 et seq. (1970 ed., Supp. V), compelling immediate
prosecutions upon probable cause would not add to the time during which
defendants stand accused, but would create a risk of guilty persons escaping
punishment simply because the Government was unable to move from

probable cause to guilt beyond a reasonable doubt in the short time available to
it. Even absent a statute, of course, the Speedy Trial Clause of the Sixth
Amendment imposes restraints on the length of post-accusation delay.
11

Cf. United States v. Watson, 423 U.S. 411, 431, 96 S.Ct. 820, 831, 46 L.Ed.2d
598 (1976) (Powell, J., concurring) ("Good police practice often requires
postponing an arrest, even after probable cause has been established, in order to
place the suspect under surveillance or otherwise develop further evidence
necessary to prove guilt to a jury").

12

Defendants also would be adversely affected by trials involving less than all of
the criminal acts for which they are responsible, since they likely would be
subjected to multiple trials growing out of the same transaction or occurrence.

13

See also Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17
L.Ed.2d 374 (1966), quoted in United States v. Marion, 404 U.S., at 325 n. 18,
92 S.Ct., at 465 n. 18:
"There is no constitutional right to be arrested. The police are not required to
guess at their peril the precise moment at which they have probable cause to
arrest a suspect, risking a violation of the Fourth Amendment if they act too
soon, and a violation of the Sixth Amendment if they wait too long. Law
enforcement officers are under no constitutional duty to call a halt to a criminal
investigation the moment they have the minimum evidence to establish
probable cause, a quantum of evidence which may fall far short of the amount
necessary to support a criminal conviction."

14

In addition, if courts were required to decide in every case when the

prosecution should have commenced, it would be necessary for them to trace
the day-by-day progress of each investigation. Maintaining daily records would
impose an administrative burden on prosecutors, and reviewing them would
place an even greater burden on the courts. See also United States v. Marion,
supra, at 321 n. 13, 92 S.Ct., at 464.

15

See, e. g., The Prosecution Function, supra, n. 9, at 3.9(b):

"The prosecutor is not obliged to present all charges which the evidence might
support. The prosecutor may in some circumstances and for good cause
consistent with the public interest decline to prosecute, notwithstanding that
evidence may exist which would support a conviction. Illustrative of the factors
which the prosecutor may properly consider in exercising his discretion are:
"(i) the prosecutor's reasonable doubt that the accused is in fact guilty;

"(ii) the extent of the harm caused by the offense;

"(iii) the disproportion of the authorized punishment in relation to the particular
offense or the offender;
"(iv) possible improper motives of a complainant;
"(v) reluctance of the victim to testify;
"(vi) cooperation of the accused in the apprehension or conviction of others;
"(vii) availability and likelihood of prosecution by another jurisdiction."
16

Of course, in this case further investigation proved unavailing and the United
States Attorney ultimately decided to prosecute based solely on the Inspector's
report. But this fortuity cannot transform an otherwise permissible delay into an
impermissible one.

17

In Marion we noted with approval that the Government conceded that a

"tactical" delay would violate the Due Process Clause. The Government renews
that concession here, Brief for United States 32, and expands it somewhat by
stating: "A due process violation might also be made out upon a showing of
prosecutorial delay incurred in reckless disregard of circumstances, known to
the prosecution, suggesting that there existed an appreciable risk that delay
would impair the ability to mount an effective defense," id., at 32-33, n. 25. As
the Government notes, however, there is no evidence of recklessness here.

18

See also Pet. for Cert. 4, 8; Brief for United States 3, 8, 38; Tr. of Oral Arg. 4,
7, 10, 47.

19

Professor Amsterdam has catalogued some of the noninvestigative reasons for

delay:
"(P)roof of the offense may depend upon the testimony of an undercover
informer who maintains his 'cover' for a period of time before surfacing to file
charges against one or more persons with whom he has dealt while disguised. . .
. (I)f there is more than one possible charge against a suspect, some of them
may be held back pending the disposition of others, in order to avoid the
burden upon the prosecutor's office of handling charges that may turn out to be
unnecessary to obtain the degree of punishment that the prosecutor seeks.
There are many other motives for delay, of course, including some sinister
ones, such as a desire to postpone the beginning of defense investigation, or the
wish to hold a 'club' over the defendant.

"Additional reasons for delay may be partly or completely beyond the control
of the prosecuting authorities. Offenses may not be immediately reported;
investigation may not immediately identify the offender; an identified offender
may not be immediately apprehendable. . . . (A)n indictment may be delayed
for weeks or even months until the impaneling of the next grand jury. It is
customary to think of these delays as natural and inevitable . . . but various
prosecutorial decisions such as the assignment of manpower and priorities
among investigations of known offenses may also affect the length of such
delays." Speedy Criminal Trial: Rights and Remedies, 27 Stan.L.Rev. 525, 527728 (1975).
See also Dickey v. Florida, 398 U.S. 30, 45-46, n. 9, 90 S.Ct. 1564, 1572-1573,
26 L.Ed.2d 26 (1970) (BRENNAN, J., concurring).
1

It is a settled rule of this Court that we will not review concurrent findings of
fact by two courts " 'in the absence of a very obvious and exceptional showing
of error.' " Berenyi v. Immigration Director, 385 U.S. 630, 635, 87 S.Ct. 666,
670, 17 L.Ed.2d 656, citing Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275,
69 S.Ct. 535, 537, 93 L.Ed. 672. Mr. Justice Jackson has called this a "seasoned
and wise rule . . . ." Comstock v. Group of Investors, 335 U.S. 211, 214, 68
S.Ct. 1454, 1456, 92 L.Ed. 1911.

An examination of the transcript of the District Court hearing reveals that the
Government produced no evidence as to why the indictment was delayed. The
Government stipulated that it proceeded before the grand jury only on evidence
collected some 17 months before the presentation and that no additional
evidence had caused it to proceed. Although the Court of Appeals surmised that
"(n)o reason existed for the delay except a hope on the part of the Government
that others might be discovered who may have participated in the theft(s) . . .,"
532 F.2d, at 61, even this assumption is not borne out by the record of the
District Court hearing. Although not under oath, the prosecuting attorney
indicated that the Government theorized that the guns in question came from
the respondent's son, who worked at a freight terminal and would have had
access to the mails. Yet even this theory was never shown to be the cause of the
delay. Not even the prosecuting attorney stated as much.