author: SOLOMON, District Judge. Chief Judge BAZELON:

text:
    UNITED STATES of America v. Clarence I. WEST, Jr., Appellant.
    No. 73-1665.
    United States Court of Appeals, District of Coluriibia Circuit.
    Argued April 10, 1974.
    Decided Sept. 11, 1974.
    Bazelon, Chief Judge, filed a concurring opinion.

      Richard M. Cooper, Washington, D. C. (appointed by this Court), with whom Jeremiah C. Collins, Washington, D. C. (appointed by this Court), for appellant.
    Michael G. Scheininger, A.sst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and David M. Bullock, Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and SOLOMON,  District Judge for the District of Oregon.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   SOLOMON, District Judge.

The issue in this appeal is whether a thirteen-month delay between arrest and trial of a defendant in custody violated his Sixth Amendment right .to a speedy trial.

On March 14, 1972, Clarence I. West, Jr., was arrested for possession of stolen mail. He had no funds for bail or counsel. He was confined. On June 19, an attorney was appointed.

West was arraigned on June 23 and his trial was set for August 2. On July 7, his attorney said that he would file a motion to suppress; the court set the motion for hearing on the same day as the trial. On July 14, his attorney filed the motion, together with a supporting memorandum.

The judge vacated the hearing date of August 2 because he did not intend to hold court on that day. The motion to suppress was not called up for argument until November 6. The motion was denied without opinion on December 12.

During this period West requested permission to visit his wife, who was seriously ill in the hospital. The motion was granted and he was permitted to visit his wife in the custody of an officer for a half hour every three days.

Within two days after the motion to suppi’ess was denied, West’s attorney informed the prosecutor and the trial judge’s law clerk that West wanted a speedy trial. On February 8, 1973, the attorney notified the prosecutor and the trial judge personally of West’s desire for a speedy trial.

On March 14, 1973, West moved to dismiss for want of a speedy trial. The government did not answer the motion until April 11. On April 16, the court denied the motion without opinion and set the trial for May 2, 1973. Defendant was convicted after a short trial. There were no complex issues of law or fact; the total transcript of testimony of the trial was only 54 pages.

The United States Attorney admits that at no time was there compliance with Rule 46(g) of the Federal Rules of Criminal Procedure. This rule requires the United States Attorney to furnish the district courts with bi-weekly reports of persons in custody for more than ten days. The rule also requires him to give the reason that the defendant is being held.

The right to a speedy trial is guaranteed by the Sixth Amendment. Even before that right was applied to the states, see Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), many states regulated the length of pretrial delay or detention by statute. See, e. g., Cal. Penal Code, § 1382 (1872); Pa.Stat.Ann. tit. 19, § 781 (1860); Mass.Ann.Laws c. 277, § 72 (1784). Courts and bar associations have become increasingly concerned over the right to a speedy trial. American Bar Association, Standards Relating to Speedy Trial (Approved Draft, 1968); Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (1971).

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court held that the degree to which pretrial delay infringes Sixth Amendment rights must be analyzed in terms of the length of the delay, the reasons for the delay, the defendant's assertion of his right, and the prejudice to the defendant. The court said that each case must be decided on its own facts and declined to establish a constitutional rule requiring all criminal defendants to be brought to trial within a specified time. Nevertheless, the court noted that “[njothing we have said should be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought." 407 U.S; at 530, n. 29, 92 S.Ct. at 2192.

In this circuit a delay of more than one year between arrest and trial gives prima facie merit to á Sixth Amendment challenge. United States v. Ransom, 151 U.S.App.D.C. 87, 465 F.2d 672, 673 (1972); United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, 1332 (1972); Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 686 (1966). In cases tried after 1972, a delay of more than six months is “subject to inquiry and need for justification.” United States v. Ransom, supra, 465 F.2d at 673, n. *. Because the delay in this ease exceeded one year, the burden shifted to the government to justify the delay. If the government cannot justify the delay, the indictment must be dismissed. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); United States v. Calloway, 164 U.S.App.D.C. -, 505 F. 2d 311 (1974).

Here none of the delay can be attributed to West. An attorney was not appointed until three months after West’s arrest. West’s motion to suppress was filed promptly but was not decided for five months after it was filed. West was brought to trial five months after the court denied his motion to suppress. The trial was short and required little pretrial preparation. All the witnesses were available. West was in jail and could have been produced for trial at any time. He did not seek a continuance.

West asserted his right to a speedy trial. He informally asked the prosecutor and the trial judge for a speedy trial in December, 1972, and again in February, 1973. He also filed a formal motion to dismiss for lack of a speedy trial on March 14, 1973, one year after his arrest and six weeks before his trial.

Although West was not prejudiced at his trial by the pretrial delay, he was in jail for thirteen months between his arrest and trial. Extended pretrial detention oppresses the accused and destroys the presumption of innocence. See J. Skelly Wright, J., concurring in part and dissenting in part in Smith v. United States, 135 U.S.App.D.C. 284, 418 F.2d 1120, 1123, 1124 (1969); Barker v. Wingo, supra, 407 U.S. at 532, 533, 92 S.Ct. 2182.

The trial judge wrote no opinion and gave no reason for denying the motion to dismiss for lack of a speedy trial. In its brief the government emphasized congestion and scheduling problems in the District Court as reasons for the delay. Even though calendar congestion is a more neutral reason for delay than a deliberate attempt by the government to postpone the trial, institutional delays must still be charged to the government. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182. Speedy trials limit plea bargaining, encourage rehabilitation, and reduce an accused’s opportunity to escape or commit crimes while on bail. Lengthy pretrial incarceration causes social dislocation and public expense and pressures defendants, even if innocent, to plead guilty. Id. at 519, 520, 532, 92 S.Ct. 2182. The public interest in speedy trials can only be protected by imposing sanctions on the government when the criminal justice system is responsible for unjustifiable pretrial delays.

The dangers of pretrial delays were increased by the failure to prepare the pretrial detention reports required by Rule 46(g). This rule serves to supply frequent pressure on our legal institutions to provide defendants in custody with speedy trials. Because these defendants are often both indigent and illiterate, and are usually represented by overburdened attorneys, it is unlikely that they will supply such pressure themselves.

The failure to comply with Rule 46(g) may have been the result of a jurisdictional impasse between two already overworked agencies. See note 2, supra. Moreover, whatever the justification, the required reports were not prepared. Had the rule been complied with, both the prosecution and the trial judge would have been regularly reminded of West’s continued incarceration. Moreover, the preparation of the required biweekly “statement of reasons why the defendant is still in custody” would have provided both the United States Attorney and the court with the incentive to minimize unjustifiable delays.

In Smith v. United States, supra, a defendant was confined for thirteen months before trial. The government gave no explanation for the delay. This Court said:

This incarceration without trial for 13 months is all too long, especially when no reason for it appears.
We have considered whether the time has come to adopt a rule that for persons in detention, a delay prior to trial of more than one year, not attributable to the defense, automatically calls for dismissal of the indictment, due to prejudice to the person. Certainly there must be some limit on such delay . . .
There is at present, however, an unusual strain upon prosecutorial and judicial resources. The legislature has been apprised of the problem, and we may appropriately accommodate our doctines to permit time for provision of resources necessary to dispose of criminal cases without denial of fundamental rights. For this reason, we have decided not to rule that prejudice to the person by detention for a year automatically leads to dismissal. 418 F.2d at 1121, 1122.

This warning was given in 1969. Now, five years later, we have another case in which a defendant was in custody for thirteen months before trial, with none of the delay attributable to him. Congress has had ample time to provide funds to remedy this condition. We can no longer “accommodate our doctrines” at the expense of incarcerated defendants in the hope that additional resources may someday be made available.

We hold that the prejudice to the person of a defendant in custody for thirteen months between arrest and trial for a non-violent offense requires dismissal of the indictment when the issues of fact and law are not complex, and when court congestion rather than the acts of the defendant caused the delay.

Here pretrial delay infringed West’s Sixth Amendment right to a speedy trial. The government has not met its burden of justifying the delay.

The judgment of the District Court is reversed and the case is remanded with instructions to dismiss the indictment.

Concurring Statement of

Chief Judge BAZELON:

I fully concur in Judge Solomon’s well' reasoned opinion. I simply wish to add a word, however, about the government’s failure to comply with Rule 46(g) of the Federal Rules of Criminal Procedure. The failure to file pretrial detention reports represents an unwarranted rejection of a mechanism designed to insure that the cases of incarcerated defendants are not ignored or forgotten in the administration of criminal justice.

Rule 46(g) provides in pertinent part that:

The attorney for the government shall make a bi-weekly report to the court listing each defendant . . . who has been held in custody pending indictment, arraignment or trial for a period in excess of ten days. . As to each defendant so listed the attorney for the government shall make a statement of the reasons why the defendant is still held in custody.

The Rule is intended to serve as an automatic means by which the attention of the U. S. Attorney and the trial court is focused on lagging cases in which defendants are incarcerated and, of particular importance, on the reasons why each defendant is still in custody. Compliance with the Rule would help both the trial court and the U. S. Attorney to fulfill their joint responsibility “for the expeditious trial of criminal cases.” Barker v.. Wingo, 407 U.S. 514, 527 fn. 27, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101 (quoting Hodges v. United States, 408 F.2d 543, 551 (8th Cir. 1969)). For instance, Rule 46(g) reports would encourage trial judges with congested calendars to transfer cases of incarcerated defendants to other judges. Similarly, with regular Rule 46(g) reports the U. S. Attorney’s office could legitimately be expected to place priority on the preparation of those cases in which defendants had been incarcerated for extended periods of time.

In this case, the failure of the responsible government officials to file the required reports left West with the entire burden of calling attention to his need for a speedy trial. As the court today makes clear, this is a burden that the majority of defendants can simply not be expected to bear. Because they are unschooled, most may not even be aware of their rights under the Sixth Amendment, much less of the complex doctrines that have grown out of the courts’ interpretation of that amendment. The failure to file Rule 46(g) reports greatly increases the chances that some defendants, because indigent and ignorant, will effectively be denied the protection of the Sixth Amendment. This is fundamentally at odds with the spirit both of the Constitution and of elementary fairness. As the Supreme Court noted in Barker v. Wingo, “The right to ‘a speedy . . . trial’ ... is not to be honored only for the vigilant and the knowledgeable.” 407 U.S. at 527, fn. 27, 92 S.Ct. at 2190 (quoting Hodges v. United States, 408 F.2d 543, 551 (8th Cir. 1969)). Nor, might I add, should it be honored only for those defendants fortunate enough to have dedicated and competent counsel.

      . In September, 1972, West’s appointed attorney moved from the jurisdiction and a new attorney was appointed. The government does not contend that this change, not requested by the defendant, caused any delay.

      . 23 D.C.Code § 1303(h)(6) directs the District of Columbia Bail Agency to “prepare, in cooperation with the United States marshal for the District of Columbia and the United States attorney for the District of Columbia, such pretrial detention reports as are required by Rule 46(h) [now 46(g)].” The U. S. Attorney has informed the court that his office “is 'not now, nor has it ever been, equipped to monitor the oft-changing status of detainees,” and that the Bail Agency has never given the assistance directed by § 1303(h)(6) because of inadequate resources.

      . The filing of a bi-weekly statement of the reasons as required by Rule 46(g) would also lessen the need in speedy trial cases to engage in post-hoc speculation on the causes and justification for the delays.

      . In view of our disposition of the case, we do not reach the Miranda, and Fourth Amendment issues also raised in the appeal.

      . As noted in Judge Solomon’s opinion, page 255 supra, the D.C.Code provides that the Distriet of Columbia Bail Agency as well as the Tí. S. Attorney play a role in the preparation of the Rule 46(g) reports. The fact that the responsibility may be a shared one of course makes the absence of the reports no more justifiable.

      . In Barker v. Wingo, the Supreme Court recognized the special prejudice suffered by incarcerated defendants:
      The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time.
      407 U.S. 532-533, 92 S.Ct. 2193 (1972).

      . Only after the period of West’s incarceration did the U. S. Marshal and the Clerk’s Office of the District Court begin their practice, pursuant to Local District Court Rule 2-7(e), of preparing a biweekly jail list. Rule 2-7(e) provides in part that:
      At all arraignments and on every other Monday thereafter the United States Mar-slial shall provide each judge with the names of all defendants before him that are being held in jail, the reasons for this confinement, and the length of this confinement.
      On inquiry, this court was informed that the jail lists that are actually prepared indicate the names of defendants held, their status (e. g. the date on which trial has been set), and their dates of indictment and commitment. Currently, the lists are prepared by the Clerk’s Office of the District Court.
      In two respects these jail lists appear to be inadequate substitutes for the reports mandated by Rule 46(g). First, they do not fulfill Rule 46(g)’s requirement that there be provided “a statement of reasons why the defendant is still held in custody.” Secondly, we have learned on inquiry that the U. S. Attorney’s Office — required to prepare the reports under Rule 46(g) — does not even receive copies of the Rule 2-7(e) jail list from the Clerk’s Office. The II. S. Attorney is in a peculiarly well-suited position to hurry cases toward trial but is apparently still without the regular notice which Rule 46(g) compels him to take as to which cases most need expediting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROHM AND HAAS COMPANY, Appellant, v. Robert GOTTSCHALK, Commissioner of Patents.
    No. 73-1653.
    United States Court of Appeals, District of Columbia Circuit.
    Argued April 24, 1974.
    Decided Sept. 18, 1974.
    William E. Lambert, III, Philadelphia, Pa., with whom George W. F. Simmons, Philadelphia, Pa. and Franklin D. Wolffe, Washington D.C. were on the brief for appellant.
    Fred E. McKelvey, Atty., Washington, D.C., for appellee. Joseph F. Naka-mura, Sol., was on the brief for appellee.
    Eric P. Schellin, Arlington, Va. and Anne M. Kornbau, Arlington, Va. filed a brief on behalf of National Patent Council, Inc., as amicus curiae urging reversal.
    Before MeGOWAN and TAMM, Circuit Judges, and EDWARDS, United States Circuit Judge for the Sixth Circuit.

       Sitting by designation pursuant to 28 U.S.C. § 291(a).

   PER CURIAM.

This is a patent case which is subject to disposal on purely procedural grounds. Following a practice known as “withdrawal” which had gained some standing in the Patent Examiner’s office, the Examiner rejected claims 12 to 17 of plaintiff-appellant’s patent application and then “withdrew” claims 23 and 24 from consideration. The effect of this was to leave plaintiff free to refile these claims separately. As of the time of the Examiner’s action, however, the “withdrawal” was conceived in the Patent Office not to represent a rejection. Hence no appeal could be taken from the Examiner’s order.

Plaintiff-appellant did, however, unsuccessfully petition the defendant Commissioner to review the Examiner’s decision. It then sought to appeal to the District Court under 5 U.S.C. § 702 (1970), and 28 U.S.C. § 1361 (1970). The District Judge relying on the lack of finality of the “withdrawal” proee-dure denied appellant’s motion for summary judgment and dismissed the action.

Some time thereafter, on November 1, 1973, the Court of Customs and Patent Appeals decided a case called In re Haas, 486 F.2d 1053 (1973). The court held that when an Examiner designated an adverse decision as a “withdrawal” of a claim from further consideration it was “in fact a rejection of that claim on the ground that it encompasses independent and distinct inventions.” ' Id. at 1056. The court thereupon held that appeals could be taken from such a rejection.

“We find that the action taken by the examiner did in fact amount to a .rejection of claims 1 and 2. Those claims were withdrawn from consideration not only in this application but prospectively in any subsequent application because of their content. In effect there had been a denial of pat-entability of the claims. Presumably only by dividing the subject matter into separate, and thus different, claims in plural applications could an examination of the patentability of their subject matter be obtained.
Conclusion
“We are thus led inevitably to the conclusion that the examiner’s action here meets the standard established in Hengehold for adverse decisions reviewable by the board. The absolute ‘withdrawal’ herein cannot properly be categorized as merely a ‘requirement’ or ‘objection’ and the avenue of review thereby be restricted to petition and judicial examination under 5 U.S. C. §§ 701-706. An examiner’s adverse action of this nature is a rejection, a denial of substantive rights. Review thereof must fall within the jurisdiction of the board.” In re Haas, 486 F.2d 1053, 1056 (1973). (Emphasis in original).

In re Haas is directly in point with our instant appeal as appellee conceded at oral argument. Since we agree with the reasoning of In re Haas, supra, we vacate the District Court judgment in this case and direct the District Court to remand this appeal to the Patent Office for further proceedings in the light of In re Haas. Appellant under our order or remand retains the right to full administrative review of his pending petition under the principles of In re Haas.


author: PER CURIAM: FAHY, Senior Circuit Judge

text:
    UNITED STATES of America v. Erwin E. COOPER, Appellant. UNITED STATES of America v. Robert S. TURNER, Appellant.
    Nos. 73-1171, 73-1206.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 31, 1974.
    Decided Sept. 13, 1974.

      Fahy, Senior Circuit Judge, concurred with qualifications and filed opinion in which Bazelon, Chief Judge, joined.
    David R. Berz, Washington, D. C. (appointed by this court), for appellants. Charles Fabrikant, Washington, D. C. (appointed by this court), was on the brief for appellants.
    Michael G. Scheininger, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and John O’B. Clarke, Jr., Asst. U. S. Attys., were on the brief, for appellee.
    Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and TAMM, Circuit Judge.
   PER CURIAM:

In connection with the armed robbery of a bank, appellants were convicted of three counts of bank robbery (18 U.S.C. § 2113(a)), three counts of armed robbery (22 D.C.Code §§ 2901, 3202), and seven counts of assault with a dangerous weapon (22 D.C.Code § 502). They were sentenced under the Youth Corrections Act.

On the basis in part of strong identification evidence the convictions, as we set forth later in this opinion, are affirmed, notwithstanding the two principal contentions of error, namely: (1) the admission of incriminating statements allegedly contrary to the test of admissibility set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and (2) failure of the prosecution to afford appellants a speedy trial. While these contentions are by no means frivolous, our study of the record persuades us that a new trial is not justified on either ground. As to the speedy trial issue, howeve:r, the delay of thirteen months, for which the appellants bear no responsibility, is troublesome. It is true that the part of the delay — the first seven months — for which the government is directly responsible was at least partially justifiable. During that period the government was apparently conducting an investigation of the bank robbery which resulted in the naming of three additional individuals in a superseding indictment. However, the greatest part of the rest of the thirteen-month delay was due to the fact that the trial judge to whom the case had been assigned was occupied with other trial duties. Such institutional delay is a weak ground upon which to stand against the constitutional right, especially in the absence of exploration of the availability of other judges to assume responsibility for the case. The thirteen-month delay caused the prosecution to fall under the prima facie cloud of violation of the constitutional right. United States v. Rucker, 150 U.S.App.D.C. 314, 464 F.2d 823, 825 (1972).

Furthermore, while appellants may have failed to assert the right formally until the day the trial began, the failure of the government to comply with Rule 46(g) of the Federal Rules of Criminal Procedure, see note 1, supra, cancels any negative effect that appellants’ silence may have on the validity of their speedy trial claim. As we recently indicated in United States v. Calloway, supra, 505 F.2d at 317, where the gov-' ernment failed to comply with Rule 46(g):

In the face of its own dereliction the government is clearly not in a position to claim that appellant should be penalized for failing to press his right.

However, what does operate against holding that the right to speedy trial was violated is the lack of significant prejudice caused by the delay. While incarceration is normally taken to be a weighty indication of prejudice, see Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Calloway, supra, 505 F.2d at 317, Turner was incarcerated only during that portion of the period between arrest and trial in which the delay was justifiable. The longer period that Cooper spent in pretrial detention is attributable to the fact that, having been released pending trial, he violated the conditions of release and was reincarcerated. The incarceration that occurred in this case did not cause prejudice at trial significant enough to justify reversing the convictions.

The problems of compliance with Miranda, and, also, the separate issues of voluntariness of Turner’s confession and, particularly, the incriminating statement of Cooper, are also troublesome, but on careful review of the record of the suppression hearing, while doubts are not eliminated, we do not find justification for overriding the relevant findings and conclusions of the trial judge.

We also have considered the matter of multiple convictions. Of seven convictions of assault with a dangerous weapon, three, involving bank tellers, are set aside, as lesser included offenses of the armed robberies of the tellers. Counts 3, 6 and 9 are accordingly vacated. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973). Of the four other convictions of assault with a dangerous weapon, appellants seek to have three also set aside under United States v. Alexander, 152 U.S.App.D.C. 371, 471 F.2d 923 (1973). They contend the assault was perpetrated on a group and thus constituted a single criminal act. An analysis of the testimony, however, clearly supports the convictions as resting upon three separate assaults rather than a group assault. Each of the three bank officials was approached individually by the gunmen and assaulted separately. Finally, as the United States concedes, two of the three convictions for bank robbery must be vacated under United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972). The result is that the convictions of bank robbery (count 1), armed robbery (counts 2, 5, 8), and assault with a dangerous weapon (counts 10, 11, 12, 13) are affirmed.

It is so ordered.

FAHY, Senior Circuit Judge

(concurring with qualfications):

I

To avoid compelled self-incriminating evidence, obtained from a suspect during his in-custody interrogation by investigating officers in state cases, the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 964 (1966), requires the officers to advise the suspect of certain rights and to warn him that anything he says can be used in evidence against him. In the absence of such advice and warning the evidence is inadmissible. However, Miranda permits the suspect knowingly and intelligently to waive his rights, and voluntarily to make self-incriminating statements if he has been properly advised and warned. Such statements are admissible at trial as not compelled.

Relying upon the long history of the law applicable to confessions, and influenced by the importance to human dignity and personality of the Fifth Amendment privilege, applicable in state cases through the Fourteenth Amendment, the Miranda Court concluded that in-custody interrogation carries “its own badge of intimidation,” 384 U.S. at 457, 86 S.Ct. 1602. Fundamental also to the Court’s decision is the distinction between a public trial with counsel, guaranteed by the Constitution, before an impartial judge and jury, as contrasted with a non-public, unrecorded, uncounselled inquiry as to guilt conducted by law enforcement authorities to secure from the in-custody suspect the basis for his subsequent conviction at the public trial to be held.

In this case appellant Cooper made the incriminating statement now challenged subsequent to warning and advice by the FBI agents of certain of his rights, in compliance with the requirements of Miranda in a state case. Thereupon he had also signed a waiver of those rights which the trial court held complied with Miranda, a holding I assume arguendo to have been correct for a state case. Cooper’s case, however, is federal. In a federal case the Miranda opinion states that the advice and warning is to be given in accordance with Rule 5(a) of the Federal Rules of Criminal Procedure. The Court said:

Because of the adoption by Congress of Rule 5(a) of the Federal Rules of Criminal Procedure, and this Court’s effectuation of that Rule in McNabb v. United States, 318 U.S. 332 [63 S.Ct. 608, 87 L.Ed. 819] (1943), and Mallory v. United States, 354 U.S. 449, [77 S.Ct. 1356, 1 L.Ed. 2d 1479] (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner “without unnecessary delay” and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343-344, [63 S. Ct. 608 at 614] and in Mallory, 354 U.S., at 455-456, [77 S.Ct. 1356 at 1359-1360] we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself.

384 U.S. at 463, 86 S.Ct. at 1622.

Rule 5(a) of F.R.Crim.P., thus binding upon the FBI in our case, reads:

An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate or, in the event that a federal magistrate is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. § 3041. If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith which shall comply with the requirements of Rule 4(a) with respect to the showing of probable cause. When a person, arrested with or without a warrant or given a summons, appears initially before the magistrate, the magistrate shall proceed in accordance with the applicable subdivisions of this rule.

The subdivision applicable to this case is Rule 5(c), which provides in part as follows:

(c) Offenses Not Triable by the United States Magistrate. If the charge against the defendant is not triable by the United States magistrate, the defendant shall not be called upon to plead. The magistrate shall inform the defendant of the complaint against him and of any affidavit filed therewith, of his right to retain counsel, of his right to request the assignment of counsel if he is unable to obtain counsel, and of the general circumstances under which he may secure pretrial release. He shall inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall also inform the defendant of his right to a preliminary examination. He shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided by statute or in these rules.

Rule 5(a) was not complied with in this case. Nevertheless, this Court has held that a valid Miranda waiver constitutes a waiver of the need for compliance with Rule 5(a). Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969); and see, Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651 (1969). This position of our court requires my adherence. For that reason I concur in affirmance of the Cooper conviction notwithstanding Rule 5(a) was not complied with; but I respectfully disagree with our court’s position that a Miranda waiver is a waiver of Rule 5(a). I continue to believe, as previously stated in my dissent in Poole, swpra, that this ruling is mistaken and should be reconsidered.

The ruling referred to I think is clearly inconsistent with the statement in Miranda, supra, that “[w]hen federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder.” In my opinion the ruling is inconsistent also with good reason; it overlooks the vast difference in these matters between public advice and warning by a magistrate, with tender of counsel, as required by Rule 5(a), and in-custody, non-public advice and warning, with tender of counsel, by the arresting officers at a police station or FBI office. To equate the two, and to equate a waiver obtained in these different circumstances, would be for me to repudiate the fundamental basis of. the Supreme Court’s approach to this problem, namely, the suspect and coercive character of in-custody interrogation. Moreover, the Court’s discussion in Miranda of the elements of a valid waiver has no relevance to the situation where Rule 5(a) is applicable. Neither Rule 5(a) nor any decision which antedated Miranda speaks of a waiver by an arres-tee of the duty imposed upon the police authorities by the Rule. The Miranda Court, by requiring compliance with Rule 5(a) in a federal case, excludes any claim that a Miranda waiver constitutes a waiver of Rule 5(a) in a federal case. A Miranda waiver, moreover, is not a waiver of the duty imposed by law upon an officer.

Since, in my view, there was a failure of the officers to comply with Rule 5(a), resulting in Cooper not having been warned and advised by a magistrate, with tender of counsel, in the manner required by that Rule and the further applicable subdivisions of Rule 5, set forth supra, I would hold the incriminating statement inadmissible. It cannot be inferred that the statement would have been made had Rule 5(a) been followed.- The statement resulted directly from the in-custody interrogation which went forward in the absence of compliance with the requirements of Miranda that “[w]hen federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and eases thereunder.” Since the incriminating evidence was not the fruit of an invalidly obtained statement, but was the statement itself, Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), does not apply, aside from the fact that it is a state case.

My position does not rest upon the particular admonition of Rule 5(a) against “unnecessary delay” in taking Cooper to a magistrate, the basis for the Mallory Rule. It rests upon the fact that the statement was obtained without the public authorities complying at all with the obligation of Rule 5(a) that the warning and advice of rights be given by a magistrate in a federal case. Had he been so advised and warned he might, for example, have accepted counsel tendered by the magistrate and thereafter remained silent. Nor does my position depend upon whether or not the Miranda waiver by Cooper removed the compulsion due to the in-custody interrogation. In a federal case, apart from the advice and warning required to counter compulsion in a state case, followed by waiver, the Federal Rules of Criminal Procedure provide their own safeguards against compulsion.

II

The exclusion of Cooper’s statement is thus supported by two sound reasons in my opinion. In the first place the evidence was obtained without the advice and warning required in a federal case to remove the compulsion of in-custody interrogation. In the second place this omission was due to a violation by the agents of the FBI of their legal obligation imposed by a Rule of Criminal Procedure which has the status of statutory law.

The Mallory exclusionary rule owes its origin to the Supreme Court’s insistence upon obedience to law by the government in its investigation of crime. The importance of such insistence has been increased by the Miranda demonstration of the coercive nature of in-custody interrogation of a suspect unwarned and unadvised of his rights, and who after warning and advice has not knowingly and intelligently waived his rights and proceeded voluntarily to incriminate himself. This demonstration gave a new dimension to the importance of compliance with Rule 5(a). The exclusion of evidence obtained by official violation of this provision of the Federal Rules of Criminal Procedure gains additional justification due to the consequent failure to remove the coercive influence of in-custody interrogation in the manner required in a federal case. The fact that the Federal Rule governs, with the warning and advice given publicly by a magistrate rather than non-publicly by the arresting authorities, as may suffice in a state case, is added protection in a federal case from the coercive effect of the in-custody interrogation.

This position is not affected by 18 U. S.C. § 3501. Section 3501 is designed to modify the Mallory Rule based on “unnecessary delay” in the arrestee being taken to a magistrate. My position, accepting as we must the rationale of Miranda as to the coercive character of in-custody interrogation, depends upon the obligation of Rule 5(a) which is independent of the “unnecessary delay” requirement of the Rule — the duty of the arresting officer to take the arrestee to a magistrate for warning and advice. 18 U.S.C. § 3501 does not purport to alter this obligation.

Were these views with respect to the incriminating statement of Cooper to prevail, reversal of his conviction would be required.

Chief Judge BAZELON joins in this concurring opinion.

      . liad the government not failed to comply with Rule 46(g) of the Federal Rules of Criminal Procedure, the trial judge would have been regularly alerted to the need to explore alternative means for expediting these oases. The Rule provides that in the exercise of its supervision over the detention of defendants pending trial, for the purpose of eliminating all unnecessary detention, the attorney for the government shall make a biweekly report to the court listing each defendant held pending trial for a period in excess of ten days. As to each defendant so listed the attorney for the government is required to state the reasons why he is still held in custody. (Under 23 D.C.Code § 1303(h)(6) the D.C. Bail Agency shares responsibility for preparation of the Rule 46(g) reports with the United States Attorney’s office.) It would seem that if the United States Attorney’s office had complied with these requirements in appellants’ cases tho. assigned judge, alerted to the continuing delay, might well have requested that these cases he reassigned to another District Judge not so heavily occupied in a protracted trial. Indeed the United States Attorney himself might have moved to have the cases reassigned so that the trial could be expedited.
      The purposes of the Rule are to require the government to share the burden of preventing unnecessary pre-trial confinement, and to keep the trial court on notice of the special need for a speedy trial since the defendant is confined.
      United States v. Calloway, 164 U.S.App.D.C. -, 505 F.2d 317 (1974).
      The matter is of special importance because defendants are often indigent, unschooled and represented by overburdened attorneys, and it would be unrealistic to expect them to take initiative to gain fulfillment of the purposes of the Rule.

      . As to the validity of the Miranda waivers, see Frazier v. United States, 419 F.2d 1161 (D.C.Cir.1969) ; Pettyjohn v. United States, 419 F.2d 651 (D.C.Cir.1969).

      . That such in-custody interrogation may lead at times to exoneration of the suspect rather than self-incrimination, does not remove the compulsion in event of the latter.

      . Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1 (1958).

      . The present status of the Mallory Rule itself in light of the enactment of 18 U.S.C. § 3501, is discussed in my dissenting opinion in Poole v. United States, 161 U.S.App.D.C. 289, 495 F.2d 115, 126 (1974).

      . This strongly indicates that the officer’s duty under Rule 5(a) has never been considered as waivable by the arrestee. Assuming arguendo that such a waiver is possible, it seems clear to me it is not accomplished by a Miranda waiver which, inter alia, makes no mention of the duty imposed by Rule 5(a).

      . 18 U.S.C. § 3501(c) provides:
      (c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the, laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention : Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.

      . This is not to suggest that the “unnecessary delay” command is not to be complied with. That provision is of course part and parcel of the obligation imposed by Rule 5(a) — an obligation unaltered in any of its parts by section 3501. However, the exclusion of the Cooper incriminating statement is rested in this opinion (1) upon the violation by the FBI agents of their obligation to have Cooper warned and advised as required by the Federal Rules of Criminal Procedure, deemed by me not to have been waived, and (2) upon the consequences of such violation as it bears upon the coercive character of the in-custody interrogation.

      . This concurring opinion is expressed in terms of the case of appellant Cooper alone as a matter of convenience in developing the basis for the opinion. It will be seen, however, that were the view expressed in this opinion to prevail it would also result in reversal of the conviction of Turner.


author: J. SKELLY WRIGHT, Circuit Judge:

text:
    John E. WOMACK, Appellant v. James T. LYNN, Secretary of Department of Housing and Urban Development, et al.
    No. 72-1827.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Sept. 5, 1974.
    Decided Oct. 1, 1974.
    Robert B. Fitzpatrick, Washington, D. C., for appellant.
    Garey G. Stark, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellees.
    Lawrence D. Levien and John L. Burke, Jr., Washington, D. C., filed a brief on behalf of Washington Lawyers Committee for Civil Rights Under Law as amicus curiae. Roderic V. 0. Boggs, Washington, D. C., entered an appearance for amicus curiae.
    Before WRIGHT, TAMM and WIL-KEY, Circuit Judges.
   J. SKELLY WRIGHT, Circuit Judge:

We must decide whether Section 717(c) of the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. Ill, 42 U.S.C.A. § 2000e-16(e) (1974), which amends Title VII of the Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 255, to grant federal employees the right to bring employment discrimination claims 'against the Government in United States District Courts, applies retroactively to actions pending on March 24, 1972, the effective date of the amendment. The District Court denied appellant, a federal employee, leave to amend his complaint to include the newly established Title VII claim and granted summary judgment for the Government. Because it is our view that Section 717(c) applies retroactively to actions pending on March 24, 1972, we reverse and remand this case for further proceedings.

Plaintiff-appellant John E. Womack is a black employee of the Federal Housing Administration (FHA), a division of the Department of Housing and Urban Development (HUD). In bare-bones outline, Womack’s complaint of racial discrimination is that he has been repeatedly denied the opportunity to advance himself in the FHA while a white coworker with less experience and a lower GS grade has been promoted to a position that rightfully should have been his. In a chain of administrative proceedings commencing in 1968, Womack has exhausted his administrative remedies by pressing his claim through the various levels of the HUD and Civil Service Commission superstructure. The substance of his claim was sustained early on by Samuel J. Simmons, HUD Assistant Secretary for Equal Employment Opportunity. On October 28, 1969 Simmons adopted the finding of the hearing officer that Womack had been denied equal opportunity in his employment by reason of racial discrimination in violation of Executive Order 11246, 30 Fed.Reg. 12319 (1965). Simmons ordered Womack promoted, but denied him the back pay and retroactive seniority to which he claimed he was entitled. All further proceedings, including the present one, have challenged only the adequacy of this remedy. On December 3, 1969 Womack requested that HUD reconsider its corrective action. Unsatisfied with HUD’s minor modification in its remedy, announced on April 24, 1970, Womack appealed to the Board of Appeals and Review (BAR) of the Civil Service Coipmission. BAR rejected his appeal on September 8, 1970, and on May 14, 1971 Womack filed this suit against the Secretary of HUD and others, seeking back pay and retroactive seniority. The suit was based on various federal statutes, regulations, and constitutional provisions. On May 31, 1972, after the effective date of the Equal Employment Opportunity Act of 1972, appellant sought to amend his complaint to add Section. 717(e) as a basis of jurisdiction. The District Court denied appellant’s motion for leave to amend on June 9, 1972 and on the same day granted summary judgment to the Government while denying appellant’s summary judgment motion. No opinion accompanied any of these rulings. This appeal followed.

The question of the retroactivity of the amendments of Title VII that apply to the federal government has generated a spate of litigation, both in this circuit and elsewhere. *Nonetheless, to date only two circuits have spoken on the is-use. The Sixth Circuit, in Place v. Weinberger, 497 F.2d 412 (1974), found that Section 717(c) did not apply retroactively, while the Fourth Circuit, in Koger v. Ball, 497 F.2d 702 (1974), found just the opposite. Having examined carefully both opinions, as well as the many District Court opinions and the arguments of the parties before us, we are persuaded that the Fourth Circuit’s analysis is the better, both standing alone and in light of its convincing rebuttal of the statutory construction linchpin of the Place decision. Accordingly, we adopt the reasoning of Koger. Section 717(c) is merely a procedural statute that affects the remedies available to federal employees suffering from employment discrimination. Their right to be free of such discrimination has been assured for years. We hold that this remedial statute applies retroactively to proceedings already pending at the time of its effective date, March 24, 1972.

Since we are without the benefit of an opinion from the District Court, we cannot be certain why appellant’s motion to amend was denied and summary judgment entered against him. The transcript of the proceedings on June 9 strongly suggests, however, the reason was that the District Court did not believe Section 717(c) to be retroactive. Since this belief was erroneous, this case must be

Reversed and remanded.

      . Executive Order 11246 lias been superseded by Executive Order 11478, 34 Fed.Reg. 12985 (1969).

      . Appellant alleged the case arose under the Fifth Amendment to the Constitution, 5 U. S.C. § 701 et seq. (1970), 5 U.S.C. § 5596 (1970), 5 U.S.C. § 7152 (1970), 28 U.S.C. § 2201 (1970), 42 U.S.C. § 1981 (1970), and Executive Orders 11246 and 11478. Jurisdiction was invoked under 5 U.S.C. § 702 (1970), 28 U.S.C. § 1343(4) (1970), 28 U. S.C. § 1346(a)(2) (1970), and 28 U.S.C. § 1361 (1970). Appendix at 3.

      . Section 717(c), 42 U.S.O.A. § 2000e-16(c) (1974), reads:
      Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial eharge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

      . A majority of District Court cases have found § 717(c) to apply retroactively. See Fears v. Catlin, D.Colo., 377 F.Supp. 291 (1974) ; Henderson v. Defense Contract Administration Services Region, S.D.N.Y., 370 F.Supp. 180 (1973) ; Jackson v. United States Civil Service Com’n, S.D.Tex., 379 F.Supp. 589 (1973) ; Gautier v. Weinberger, D.D.C., 7 FEP Cases 473 (1973) ; Grubbs v. Butz, D.D.C., 6 FEP Cases 432 (1973), appeal pending, D.C.Cir. No. 73-1955; Hackley v. Johnson, D.D.C., 360 F.Supp. 1247 (1973), appeal pending on other issues, D.C.Cir. No. 73-2027; Harrison v. Butz, D.D.C., 375 F.Supp. 1056 (1973) ; Pointer v. Sampson, 62 F.R.D. 689 (1973), appeal pending on other issues, D.C.Cir. No. 73-1937; Walker v. Kleindienst, D.D.C., 357 F.Supp. 749 (1973) ; Johnson v. Froehlke, D.Md., 5 FEP Cases 1138 (1973). But see Feiger v. Warner, S.D.Cal., 7 FEP Cases 784 (1974) ; Palmer v. Rogers, D.D.C., 6 FEP Cases 892 (1973), appeal pending, D.C.Cir. No. 73-2110; Hill-Vincent v. Richardson, N.D.Ill., 359 F.Supp. 308 (1973) ; Mosely v. United States, S.D.Cal., 6 FEP Cases 462 (1973) ; Freeman v. Defense Constr. Supply Center, S.D.Ohio, 5 FEP Cases (1972), appeal dismissed, 6 Cir. No. 72-2157 (April 20, 1973).

      . The right has been assured by a series of Executive Orders dating back at least to 1948. See E.O. 9980, 13 Fed.Reg. 4311 (1948) ; E.O. 10590, 20 Fed.Reg. 409 (1955) ; E.O. 10925, 26 Fed.Reg, 1977 (1961) ; E.O. 11246, 30 Fed.Reg. 12319 (1965) ; E.O. 11478, 34 Fed.Reg. 12985 (1969).

      . While Koger involved a proceeding pending administratively on March 24, 1972, we see no reason why its rationale should not apply to eases which were properly pending in District Courts on that date and in which’ all administrative remedies had been exhausted. See Henderson v. Defense Contract Administration Services Region, supra note 4, 370 F.Supp. at 181-183; Walker v. Kleindienst, supra note 4, 357 F.Supp. at 752.

      . MR. POLHAUS [counsel for plaintiff] : * * * TT ]here is a motion which the plaintiff has filed for leave to amend the complaint to include as a basis for recovery the recently enacted Equal Employment Opportunity Act, which was passed subsequent to the filing of the original complaint. We believe it is applicable.
      THE COURT : Would it apply?
      MR. POLHAUS: We believe it would, Your Honor.
      THE COURT: What does the defendant say?
      MR. SCHWEITZER [counsel for the Government] : Your Honor, we believe the Equal Employment Opportunity Act is not retroactive; * * *
      THE COURT: Do you oppose the motion for leave to amend ?
      MR. SCHWEITZER: No, Your Honor.
      THE COURT: You don’t oppose it?
      MR. SCHWEITZER: Well, we would oppose the motion for leave to amend in that we don’t believe—
      THE COURT: Wéll, do you or don’t you?
      MR. SCHWEITZER: Certainly, Your Honor.
      THE COURT: All right. If you oppose it I won’t allow it.
      Transcript 2-3.