The opinion of the court was delivered by: YOUNGDAHL
On May 21, 1962, the defendant's conviction of contempt of Congress, 2 U.S.C. § 192, was reversed by the Supreme Court, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962), sub nom. Russell v. United States, on the ground that his original indictment in May, 1956, was fatally defective because it failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated. That Court held that an indictment for contempt of Congress must contain such an averment. 369 U.S. at 754-755, 82 S. Ct. at 1041-1042. On October 1, 1962, the defendant was reindicted for the same offense. This time the indictment identified the subject under inquiry as 'Communist activities in news media.'
The defendant has moved under Rule 12(b)(2), Fed.R.Crim.P. to dismiss this new indictment on three grounds:
1. Proceedings under the new indictment would deny defendant's constitutional right to a speedy trial.
2. The indictment fails to show the subcommittee's specific authority to investigate the alleged subject under inquiry.
3. The United States Attorney had not received a contempt citation certified under the seal of a then-existing Senate by a then-incumbent president thereof at the time the defendant's alleged contempt was presented to the grand jury during September, 1962.
Each of these grounds for dismissal will be examined separately.
The Sixth Amendment to the Constitution provides that in all criminal prosecutions, 'the accused shall enjoy the right to a speedy and public trial * * *.' The Supreme Court has construed these words to permit some delays, and to forbid others. 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.' Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 576, 49 L. Ed. 950 (1905). 'Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances. The delay must not be purposeful or oppressive.' Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 486, 1 L. Ed. 2d 393 (1957). (Emphasis added.)
Cases in this circuit both before and after Pollard, supra, amplify the standards to be used by courts in deciding whether a particular delay is, in the Supreme Court's words, 'purposeful or oppressive.' 'The essential inquiries are whether there was unnecessary delay in bringing about the new trial and whether the accused could now have a fair trial.' United States v. Gunther, 104 U.S.App.D.C. 16, 17, 259 F.2d 173, 174 (1958). (Emphasis added.) Where there has been a 'substantial' or 'extraordinary delay,' the Government, to sustain its right to try the accused, 'must show * * * that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay (attributable to the processes of justice).' Williams v. United States, 102 U.S.App.D.C. 51, 53-54, 250 F.2d 19, 21 (1957). (Emphasis added.) One judge in Williams, supra, would have gone further to hold that where there is 'more delay than is reasonably attributable to the ordinary processes of justice,' that fact alone should prevent trial, regardless of whether the defendant was prejudiced by the delay. 102 U.S.App.D.C. at 53-54, 250 F.2d at 21. A 'long lapse of time' which 'seriously * * * handicapped the preparation of a defense' entitles the defendant to have an indictment dismissed, Taylor v. United States, 99 U.S.App.D.C. 183, 186, 238 F.2d 259, 262 (1956). Accord, United States v. McWilliams, 82 U.S.App.D.C. 259, 163 F.2d 695 (1947). But if the delay was caused by an error made by the defendant himself which required time 'to extricate himself' from that error, then the defendant cannot complain about the delay. Dandridge v. United States, 105 U.S.App.D.C. 157, 158, 265 F.2d 349 (1959).
These cases establish that the lapse of time alone is not sufficient to deprive a defendant of his constitutional right to a speedy trial. There must be, in addition, either unnecessary delay caused by the Government or the courts, or prejudice to the defendant, or both. In this case, there is neither. The delay of six years is wholly attributable to the ordinary and necessary processes of justice; and there is no prejudice to the defendant. Thus in this case the delay is neither 'purposeful' nor 'oppressive.' Pollard, supra, 352 U.S. at 361, 77 S. Ct. at 485.
The delay between the first indictment and the forthcoming trial of this case under an indictment which meets constitutional requirements of specificity is wholly attributable to the ordinary and necessary processes of justice. The defendant makes no contention that there was any unnecessary delay between the alleged offense, January 6, 1956, and the first indictment, May 26, 1956. Nor does the defendant assert that there was any unnecessary delay between that indictment and his trial, conviction, and sentence in January, 1957. Nor does the defendant claim that any of the appellate procedures -- several of them postponed at the specific request of the defendant -- took an undue amount of time, since it is abundantly clear that the period from January, 1957, to the Supreme Court's opinion in May, 1962, was wholly consumed by the time required for thorough appellate review. It was the defendant who sought such appellate review, both by the Court of Appeals and -- when that court held in the Government's favor -- by the Supreme Court. The defendant does not complain -- as indeed he could not -- of the time required for such review. And finally, the defendant does not claim that there was any delay between the Supreme Court's decision in May, 1962, and his reindictment on October 1, 1962. Thus the defendant concedes that as far as the judicial process is concerned, the time which elapsed between the first and second indictments was wholly attributable to the ordinary and necessary processes of justice.
The defendant's whole argument rests upon the assertion that the Government's choice of wording in that first indictment is the cause of all the later delay, and that the delay was unnecessary because the initial choice was unnecessary. In other words, the defendant argues that because the Government could have originally specified in the indictment the subject under inquiry by the Congressional committee, the Government's failure so to do makes all the time between that indictment and the new indictment 'chargeable' to the Government.
This Court does not consider the Government's choice of wording in the first indictment either willful or negligent or 'purposeful,' and it is open to serious question whether the Government made a 'choice' at all. Under the law as it then clearly existed in the District of Columbia, the wording of the indictment was completely proper; such wording was not declared improper until the Supreme Court decided this very case, sub nom. Russell, supra. That the wording of the first indictment reflected the then-current rule in the District of Columbia was emphasized by the Supreme Court itself when that Court changed the rule, both in the majority opinion, 369 U.S. at 754, 82 S. Ct. at 1041, n. 7, and in the dissent, 369 U.S. at 782, 82 S. Ct. at 1057, n. 2. Moreover, if this then-current rule did permit the Government any choice in the matter, it would have been proper for the Government to resolve the choice in favor of simplicity -- i.e., in favor of omitting an allegation of the specific ...