ASA RICHARD TALBOT, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-847

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the court of appeals erred in reversing an
order of the district court, which had dismissed an indictment on the
ground that it was returned to avoid the speedy trial rules applicable
to prosecutions in military courts.

   Petitioner was a United States Army doctor.  In August 1985,
charges were preferred against petitioner under the Uniform Code of
Military Justice.  Petitioner was alleged to have sexually molested
two young female patients in the course of his service as a physician
at the Blanchfield Army Community Hospital in Tennessee.  After
various pretrial proceedings, petitioner's military trial was
scheduled for January 18, 1986.  Prior to trial, petitioner filed a
motion to dismiss the military charges with prejudice because of a
violation of the military speedy trial rules.  Shortly after that
motion was filed, the military prosecutors dismissed the military
charges against petitioner and referred the case to the United States
Attorney.  On February 19, 1986, petitioner was indicted by a federal
grand jury;  he was charged with sexually assaulting the two female
patients within the maritime and territorial jurisdiction of the
United States, in violation of 18 U.S.C. 113.  Pet. App. 1-9.

   Petitioner moved to dismiss the indictment on the ground that his
speedy trial, due process, and double jeopardy rights were violated by
the initiation of civilian charges after he had previously been
charged with similar offenses by the military in connection with the
assaults.  The district court granted the motion.  The court held that
the 120-day speedy trial limitation found in the Rules for
Courts-Martial had commenced to run in June 1985, when petitioner's
commanding officer relieved petitioner from his duties as a medical
officer, designated his living quarters as a duty station, and
directed him to avoid contacts with any witnesses.  Accordingly, the
district court found, a military speedy trial violation had
subsequently occurred prior to the date set for petitioner's military
trial.  The court ruled that the military prosecutors had acted in bad
faith when they referred the case to the United States Attorney's
office, because they had acted, in the court's view, in order to avoid
an unfavorable ruling by the military court on petitioner's speedy
trial motion.  That action by the military prosecutors tainted the
grand jury, the court held, and thus required that the indictment be
dismissed.  Pet. App. 9-10.

   The court of appeals reversed (Pet. App. 1-19).  The court first
noted that it is well established that military and civilian courts
enjoy concurrent jurisdiction to prosecute armed forces personnel for
criminal wrongdoing in the circumstances presented by the instant case
(id. at 10-12).  The court pointed out that prosecuting authorities
have wide latitude in dismissing criminal actions without violating
due process and that a defendant is entitled to the extreme sanction
of dismissal of an indictment only where he can show that he was
demonstrably prejudiced by a constitutional violation (id. at 14-15).
The court concluded that the federal civilian prosecution did not
violate either petitioner's due process or constitutional and
statutory speedy trial rights (id. at 16-18).  The court also found no
double jeopardy violation because petitioner had never been put in
jeopardy in the military system (id. at 12).

   Petitioner contends (Pet. 15-45) that the district court properly
found a due process violation and dismissed the indictment because it
was returned by civilian authorities for the express purpose of
avoiding an expected adverse ruling by the military court that
petitioner's military speedy trial rights had been violated.  Whatever
the merits of petitioner's contentions, they are not ripe for review
by this Court.  The court of appeals' decision places petitioner in
precisely the same position he would have occupied if the district
court had denied his motion to dismiss.  If petitioner is acquitted
following a trial on the merits, his contentions will be moot.  If, on
the other hand, petitioner is convicted and his conviction is affirmed
on appeal, he will then be able to present his current claim to this
Court, together with any other claims he may have, in a petition for a
writ of certiorari seeking review of a final judgment against him.
Accordingly, review by this Court of the court of appeals' decision
would be premature at this time.  /*/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   DECEMBER 1987

   /*/ Because this case is interlocutory, we are not responding on
the merits to the question presented by the petition.  We will file a
response on the merits if this Court requests.