(concurring, and dissenting in part):
I concur in the result, and in Part I of Judge Tamm’s opinion.
I do not join in Part II. Rather, even if the problem is to be approached and resolved in accordance with Judge McGowan’s rcommendations, utmost caution is an essential prerequisite to the adoption of a rule which would call for automatic dismissal of a criminal charge, allegedly pending too long.
I can understand that there is a tendency toward the promulgation of such a rule to be applied in behalf of an accused incarcerated throughout a period of unnecessary delay. Federal Rules of Criminal Procedure 46(h) and 48(b) as approved by Congress, both utilize as their touchstone the words “unnecessary detention” and “unnecessary delay,” respectively. Rule 48(b) presently is merely permissive, but does authorize dismissal in the prescribed circumstance. Thus the Rule obviously takes into account as does our case law, that what *1126may be “necessary” delay may well turn upon the factual background in a given situation, for the rights of society must be considered. Surely the Court meant that much when it said only six years ago in United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966):
However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, 198 U.S. 77, 87 [, 25 S.Ct. 573, 576, 49 L.Ed. 950.] “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.] (Emphasis added).
Considerations to be weighed, according to Ewell, include:
(1) a Congressionally prescribed statute of limitations “which is usually considered the primary guarantee against bringing overly stale criminal charges,” 383 U.S. at 122, 86 S.Ct. at 777;
(2) possible prejudice in preparing a defense, found wanting in Ewell since the claim there was “insubstantial, speculative and premature.” The Ewell defense had mentioned “no specific evidence which has actually disappeared or has been lost, no witnesses who are known to have disappeared,” 383 U.S. at 122, 86 S.Ct. at 777;
(3) the position of the Government, for the “problem of delay is the Government’s too, for it still carries the burden of proving the charges beyond a reasonable doubt,” 383 U.S. at 122-123, 86 S.Ct. at 777-778;
(4) and in any event, the Court must be satisfied that no “oppressive or culpable Governmental conduct” has been a factor in the delay, 383 U.S. at 123, 86 S.Ct. at 778. Compare Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970) where the outrageous delay, seen to have been “exclusively for the convenience 'of the State,” was denounced as “intolerable” in fact and “impermissible as a matter of law.”
The rights of society surely must be considered as in situations where at a given time, the Government, without fault on its part, lacks adequate evidence to secure an indictment, or even thereafter to prosecute until a previously reluctant witness has become available. See United States v. Augello, 452 F.2d 1135, 1138 (2 Cir. 1971). Again, early trial of one or more accused may be precluded where a principal defendant has become a fugitive, as in United States v. Binder et al., 453 F.2d 805, 809 (2 Cir. 1971).
In contemplating the possible scope of a so-called automatic dismissal rule, there is a very different problem where an accused is at liberty pending trial, United States v. McCray, 140 U.S.App. D.C. 67, 433 F.2d 1173 (1970), as distinguished from the situation where the defendant has been incarcerated awaiting trial. See the discussion in the respective opinions in Smith v. United States, 135 U.S.App.D.C. 284, 418 F.2d 1120 (1969).
Society’s interests as well as those of the accused have not gone unnoticed in this Court. Just as certainly as in the instant case where reversal seems so clearly necessary, we have taken account of factors which tip the scales the other way. Consider, for example, Judge Robinson’s excellent treatment in Hinton v. *1127United States, 137 U.S.App.D.C. 388, 392-394, 424 F.2d 876, 880-882 (1969) with its aggregation of the opinions stating our case law as applied to the delay issue. And see, United States v. Medley, 146 U.S.App.D.C. 396, 452 F.2d 1325 (1971), and the contrasting eases there cited.
It goes without saying that all of us will comport our thinking to whatever decisions may be evolved as a result of the course of action recently initiated by the Judicial Conference. Perhaps consideration will then be given to the questions raised by Justice Brennan, concurring in Dickey v. Florida, 398 U.S. at 39 et seq., 90 S.Ct. 1564, but left without “definitive answers,” Id. at 56, 90 S.Ct. 1564. See generally United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the treatment in the majority opinion by Mr. Justice White and the discussion by Mr. Justice Douglas, concurring in the result.
For my own part, I am satisfied that the courts in future — as they well have done in the past — may properly be permitted to deal with these delay situations as they arise. If, however, the drastic remedy of automatic dismissal is to control when some stated period shall have elapsed before final disposition of a pending case, let the problems first receive the cautious and careful consideration of the rule-makers in the manner suggested by Judge McGowan.