UNITED STATES V. EWELL, 383 U. S. 116 (1966)

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U.S. Supreme Court

United States v. Ewell, 383 U.S. 116 (1966)

United States v. Ewell

No. 29

Argued November 18, 1965

Decided February 23, 1966

383 U.S. 116


Appellees were indicted on December 14, 1962, under 26 U.S.C. § 4705(a) for selling narcotics without the requisite form. They pleaded guilty, and were sentenced to the minimum statutory terms, one for five years and the other, as a second offender, for ten years. On July 17, 1963, the Seventh Circuit, in an unrelated case, held that an indictment under § 4705(a) that does not allege the purchaser's name is defective and may be set aside. Appellees' motions to vacate their convictions were filed on November 6, 1963, and January 28, 1964, and were granted by the District Court on January 13 and April 13, 1964, respectively. They were immediately rearrested on new complaints and reindicted on March 26 and June 15, 1964. The indictments, charging the same sales originally alleged but naming the purchasers, contained three counts, charging violations of 26 U.S.C. § 4705(a), 26 U.S.C. §4704 (a) and 21 U.S.C. §174. On July 13 and July 30, 1964, the District Court granted appellees' motions to dismiss the indictments on the ground that they had been denied their Sixth Amendment rights to a speedy trial, while rejecting their double jeopardy argument. In its petition for rehearing, the Government advised that, upon a plea or finding of guilty, all counts except that under § 4704(a) would be dismissed against the second offender appellee, in which case the minimum statutory sentence would be five years, rather than the ten years under § 4705(a). The request for rehearing was denied, and the Government appealed to this Court, limiting the appeal to that portion of the District Court's orders dismissing the count of the indictments charging violations of § 4704(a).


1. The mere passage of 19 months between the original arrests and the hearings on the later indictments is not ipso facto a violation of the Sixth Amendment's guarantee of a speedy trial. Pp. 383 U. S. 120-121.

(a) The right to a speedy trial depends upon all the circumstances of the case, including the effect upon the rights of the accused and the rights of society. P. 383 U. S. 120.

Page 383 U. S. 117

(b) Since the only important interval of time occurred as a result of the Seventh Circuit's decision in an unrelated case, the substantial interval between the original and subsequent indictments does not, of itself, violate the Sixth Amendment's guarantee. Pp. 383 U. S. 120-121.

(c) When a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. United States v. Ball, 163 U. S. 662; United States v. Tateo, 377 U. S. 463. P. 383 U. S. 121.

2. That the Government is proceeding under § 4704, rather than § 4705, does not render the delay prejudicial and oppressive. Pp. 383 U. S. 121-123.

(a) The new indictments were brought within the statute of limitations applicable to § 4704. P. 383 U. S. 122.

(b) Appellees' claim of possible prejudice in defending themselves is insubstantial, speculative and premature. They mention no evidence that has been lost or witnesses who have disappeared. Pp. 383 U. S. 122-123.

(c) The Government seeks to sustain the § 4704 charges, with the lesser minimum sentences, not to oppress, but to give the trial judge, if appellees are again convicted, the opportunity to take into account the time appellees have already spent in prison. P. 383 U. S. 123.

3. Appellees' invocation of the Double Jeopardy Clause was properly rejected by the trial court. If the present indictments charge the same offense as the § 4705 offense for which appellees were previously convicted, they may, after their convictions have been vacated on their own motions, be retried under either § 4705 or §4704; if the two offenses are not the same, then the Double Jeopardy Clause, by its terms, does not prevent prosecution under §4704. Pp. 383 U. S. 124-125.

242 F.Supp. 166, 451, reversed and remanded.

Page 383 U. S. 118

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