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08/01/75 United States of America v. Roland W. Brown

August 1, 1975





Appeal from the United States District Court for the District of Columbia (D.C. Criminal 195-70).


Fahy, Senior Circuit Judge, Wright and McGowan, Circuit Judges. Opinion for the Court filed by Senior Circuit Judge Fahy. Concurring opinion filed by Circuit Judge McGowan. Statement filed by Circuit Judge Mackinnon, in which Circuit Judge Tamm joins, on denial of sua sponte suggestion for rehearing en banc.


This appeal is from convictions of several related offenses under the narcotics laws. *fn1 Appellant was arrested March 25, 1969, on a warrant charging first degree murder. The principal evidence in support of the narcotics charges was obtained from a search of an apartment in an attempt to serve the arrest warrant a short time before the arrest was actually made. Appellant was not indicted on the narcotics charges until September 29, 1969, while in custody following the arrest. A superseding indictment was returned February 6, 1970, in which seven additional persons were charged with appellant for violation of those laws. *fn2 His trial on this indictment was not held until May, 1973, more than 4 years after the arrest. In the meantime the cases of the co-defendants had been disposed of, in three instances by dismissal of the indictment as to them for lack of a speedy trial.

Appellant's contentions are that the search referred to was unlawful, with the consequence that important evidence used to convict him was inadmissible, and, secondly, that he too was denied his right to a speedy trial. *fn3 We sustain the latter contention, and accordingly need not discuss the former. *fn4 I

In computing the time lag before trial we think the starting point is the date of the arrest on the warrant charging murder, March 25, 1969, for it was in attempting to execute that warrant that the principal basis for indictment on the present charges was laid. *fn5 Several circumstances unavoidably contributed to the unusual delay. These include the preparation and trial of the murder case, an appeal from his conviction of second degree murder in that case, reversed by this court, an interlocutory appeal by the United States from an order of the District Court suppressing evidence in the present case, also reversed, and time devoted to determination of appellant's mental responsibility, which led to a bifurcated trial of that question as it affected the homicide case.

Notwithstanding delays incident to the history of the proceedings, we find that as the years passed time was available for trial of this case. Though well utilized no doubt for other purposes the total time became so extended as to lead, in the circumstances to be reviewed, to denial of the constitutional right. Even unavoidable delay is not to be disregarded, though the reasons for it bear upon its weight in balancing the factors to be considered in deciding the issue. Among those factors is the special obligation of the United States to press the case to trial as the period of unavoidable delay mounts. II We now outline the course of the proceedings.

The first phase of the homicide trial was promptly held following the arrest March 25, 1969. A verdict of guilty of second degree murder was rendered October 24, 1969. Before sentence, however, appellant on November 12, 1969, was committed on his motion to St. Elizabeths Hospital for mental examination. The hospital reported on April 8, 1970, that he was competent. *fn6 On May 25, 1970, however, the court, while finding him competent to stand trial, was not satisfied as to appellant's mental condition and ordered a bifurcated trial to determine the matter. This second phase of the trial for murder was not held for sixteen months after it was ordered. On the 22nd of September, 1971, it resulted in a finding that appellant was responsible. The murder conviction then became final. Appellant appealed and this court reversed *fn7 about 27 months later. The case was returned to the District Court in January, 1974, for a new trial. *fn8

From September 22, 1971, when the bifurcated trial was concluded, to May 24, 1973, when the present charges were tried, 20 months elapsed. During 7 of these months, from all that appears from the record, this case could have been tried. We reach this conclusion as follows: In June, 1970, appellant moved to suppress evidence. *fn9 His motion was acted upon April 12, 1971, when it was granted. *fn10 The United States appealed and this court reversed the suppression order September 13, 1972, *fn11 and denied rehearing October 12, 1972. As we have seen the appeal in the homicide case was then pending, and so continued well beyond the date of trial of the present case in May, 1973, seven months after termination of the litigation over the suppression order and 20 months after termination of the bifurcated trial. The case had already been pending more than 3 years when in October, 1972, the reversal of the suppression order became final, even if the time lag is considered to have begun as late as the return of the indictment in September, 1969.

The failure to bring the case to trial during the 7 months from October 12, 1972, to May, 1973, after so long a previous delay, is by no means the only reason for our concern. This apparently open period would have been substantially enlarged except for previous significant delays. Thus, appellant's motion to suppress evidence, argued first in June, 1970, was not acted upon until April 12, 1971, ten months later, when it was granted, leading then to the interlocutory appeal. That appeal no doubt would have been terminated prior to October 12, 1972, had the motion to suppress been more promptly decided, which would have significantly enlarged the open period of seven months to which we have referred. Moreover, as we have shown, the total time consumed in reaching a final disposition of the motion to suppress was 2 years and 4 months, ranging from June, 1970 to October 12, 1972. The narcotics case had then been pending 3 years and 1 month from the date of the indictment in September, 1969, and 3 years and 7 months from the date of the search and arrest March 25, 1969. The period thus consumed is excessive considered alone, aside from its contraction of the period of free time which otherwise would have been available to try this case during the pendency of the appeal in the homicide case.

Promptly after appellant lost the favorable decision of the District Court suppressing evidence, he moved on October 31, 1972, for dismissal of the indictment for want of a speedy trial, urging prejudice in having to proceed, for "having been in jail [he] has lost contact of some or all of his potential witnesses; some . . . are no longer in this jurisdiction or have passed away during the delay of the last four years." The motion appears not to have been heard until May 9, 1973. On that date counsel again argued, inter alia, that after "four years" there was "absolutely no way, Your Honor, that I can possibly have any kind of a defense, any witnesses as far as protecting the rights of my client." He named two witnesses who had once been but now were no longer available to testify, a man nicknamed "Little George" who had since died, and Nadine Frazier, the woman whose apartment was searched on the date of appellant's arrest in March, 1969. *fn12

Counsel also pointed out that the court had already dismissed for want of a speedy trial the indictment against three co-defendants included in the superseding indictment of February 6, 1970, upon which appellant was to be tried. The court, in denying appellant's motion, pointed to the difference in appellant's case from the others, due to the fact that the murder case was also to be disposed of. The judge stated that the Court of Appeals would not have permitted him to have allowed the prosecutor to harass counsel for defendant by forcing this case to trial, presumably while the murder case was pending. But, as we have seen, the bifurcated trial of the murder case had been concluded September 21, 1971, and this motion to dismiss was being argued May 9, 1973, nineteen months later. III

As we analyze the rather complicated proceedings, the period of approximately four years is attributable primarily to the operation of the system. Although differences of opinion may be justified as to whether any substantial part of the delay should be placed at the door of appellant, we think very little can be placed there. The time devoted to observation and examination of appellant's mental condition, not a great deal compared with the total, was due to the operation of the system rather than to any "fault" of appellant. So too the period consumed by the interlocutory appeal. *fn13 Indeed, we find no evidence of intentional delays on the part of either the prosecution or the appellant. Yet we think that upon consideration in more detail of the relevant factors the United States failed to meet its obligation to encompass all the proceedings within a pretrial span of substantially shorter duration than four years. IV

The four principal factors to be balanced, as enumerated in Barker v. Wingo, 407 U.S. 514, 530-32, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), are (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. We note preliminarily, however, that these four factors are to be considered in light of certain general principles:

A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest. . . . The rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. (Footnotes omitted.)

Id. at 527 and 529.

The right to a speedy trial is "one of the most basic rights preserved by our Constitution." Klopfer v. North Carolina, 386 U.S. 213, 226, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967); Smith v. Hooey, 393 U.S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575 (1969); Dickey v. Florida, 398 U.S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564 (1970).

. . . The longer the time between arrest and trial, the heavier the burden of the Government in arguing that the right to a speedy trial has not been abridged.

The passing of . . . a considerable length of time, no matter who is "at fault," should act as a spur to the Government to seek prompt trial.

Hedgepeth v. United States, 124 U.S. App. D.C. 291, 364 F.2d 684, 687-88 (1966). Though the circumstances in Hedgepeth were held not to violate the right to a speedy trial, the court there repeated that a claim of its denial has prima facie merit when more than a year elapses between arrest and trial. See to that effect, United States v. West, 164 U.S. App. D.C. 184, 504 F.2d 253, 255 (1974); United States v. Calloway, 164 U.S. App. D.C. 204, 505 F.2d 311 (1974), and cases there cited.

. . . in Barker v. Wingo (supra) the Supreme Court said that in weighing delay in trial, overcrowded Courts should be weighed less heavily (than Government's deliberate attempt to delay) "but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant."

United States v. Perry, 353 F. Supp. 1235, 1238 (D.D.C. 1973).

While the Court in Barker v. Wingo, supra at 523, stated that it found "no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months", it noted in passing the following developments in that regard:

The United States Court of Appeals for the Second Circuit has promulgated rules for the district courts in that Circuit establishing that the government must be ready for trial within six months of the date of arrest, except in unusual circumstances, or the charge will be dismissed.18 This type of rule is also recommended by the American Bar Association.19


In United States v. Marion, 404 U.S. 307, 312 n. 4, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971), the Court also had noted that Federal Rule of Criminal Procedure 48(b) authorizes dismissal of an indictment, information, or complaint "if there is unnecessary delay . . . in bringing a defendant to trial . . . ."

Turning now to the balancing process to be engaged in, the first factor stressed in Barker v. Wingo (supra) the length of the delay, weighs in favor of appellant's claim, for the over-all delay was inordinate. Passing over momentarily the second factor, the reason for the delay, we consider the third, the assertion of the right. This too weighs in appellant's favor. Nothing indicates any desire on his part to delay the trial. *fn14 He first moved May 18, 1971, that the indictment be dismissed for lack of a speedy trial, complaining of the delay of the United States in appealing from the suppression order. Appellant again moved to dismiss for lack of a speedy trial October 31, 1972, and brought the matter up again May 9, 1973, citing, inter alia, United States v. Perry (supra).

The second factor concerns the reason for the delay. Our outline of the proceedings has indicated the principal reasons for the delay of approximately four years, other than those which do not appear in the record of this case. We have pointed to the seven-months open period from October, 1972 to May, 1973, and to the fact that it would have been substantially enlarged except for the periods which elapsed before the motion to suppress was acted upon and finally disposed of, a total period of 2 years and 4 months. We have difficulty in finding that any significant part of the inordinately long lapse of time between arrest - or indictment - and trial, can be charged to appellant.

We come then to the fourth factor, that of prejudice to the defendant. His prejudice of a personal character is clear. This kind of prejudice, though not the same as that caused by the death of a witness or other loss of evidence, which may include loss of the memories of witnesses, is firmly established as important.

In United States v. Marion, supra at 320, the Court stated:

. . . the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense.

Moreover, it occurs independently of incarceration, though it is aggravated thereby. In that regard the Court in Marion stated:

Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.

Id. In Barker v. Wingo (supra) Mr. Justice Powell stated for the Court:

. . . even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.

407 U.S. at 533. In the earlier case of United States v. Ewell, 383 U.S. 116, 120, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966), one of the elements of the constitutional guarantee is stated to be "to minimize anxiety and concern accompanying public accusation." See, Klopfer v. North Carolina (supra) and also, Smith v. Hooey (supra) where the Court stated:

. . . this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: "

393 U.S. at 377-78.

This court has adverted to the matter as follows:

. . . these provisions [those of the Constitution and Rule 48(b) F.R.Crim.P.] seek to minimize the anxiety and attendant evils which are invariably visited upon one under public accusation but not tried. (Footnote omitted.)

Hanrahan v. United States, 121 U.S. App. D.C. 134, 348 F.2d 363, 367 (1965).

Though we cannot measure in an accurate manner the degree of personal prejudice to appellant, we cannot ignore it; and it was aggravated by appellant's incarceration, though that was due to the murder case as well. This aggravation is clear from Smith v. Hooey (supra). There Smith, while a prisoner in a federal penitentiary, was indicted by the State of Texas for a state offense. For six years he vainly sought a trial by Texas. The Texas court deemed itself to be without power to act to bring him to trial on the state charge because he was held by a different sovereign, stating, "'the true test should be the power and authority of the state unaided by any waiver, permission or act of grace'" of any other authority. 393 U.S. at 377. The Supreme Court held, however, that the petition of Smith to require the State by mandamus to make a diligent, good faith effort to bring him to trial on the state charge should be granted. The Court stated:

At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from "undue and oppressive incarceration prior to trial." But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.

And while it might be argued that a person already in prison would be less likely than others to be affected by "anxiety and concern accompanying public accusation," there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina (supra) at 221-222. In the opinion of the former Director of the Federal Bureau of Prisons,

"It is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner's ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement."

And, while "evidence and witnesses disappear, memories fade, and events lose their perspective," a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time. (Footnotes omitted.)

Id. at 378-80.

We do not ignore but neither do we emphasize appellant's claim of prejudice due to his inability to defend against the narcotics charges as urged by his counsel in the trial court. He did not testify and called no witnesses in the two-day trial. Perhaps a court would be justified in assuming some prejudice to an accused's defense due to such a delay, accompanied by incarceration, but we do not make such an assumption in this case. The factor of prejudice, however, does weigh in favor of appellant's claim of denial of a speedy trial, because of the personal prejudice of which the Supreme Court has spoken in the cases to which we have referred. V

As we have seen, the period during which the case was pending before trial was substantially entangled with the homicide case involving appellant. Unavoidable difficulties confronted the trial court in bringing the narcotics case to trial. Moreover, even during what we refer to as an open period, when it appears the case could have been tried, and which we think could have been expanded as has been explained, we know the trial court was well occupied in other respects. There was a heavy case load of which this case was but a part. We would not be justified in implying criticism of the trial court or the prosecution; we cannot reconstruct the overall situation, or isolate any delays as due to neglect or design on the part of those responsible for bringing the case to trial. Yet the burden of responsibility was not met in the particular case, with the consequence that, in balancing the relevant factors to be considered, we conclude the constitutional right requires enforcement by dismissal of the indictment. *fn15

It is so ordered. *fn16 IN AGREEMENT

McGOWAN, Circuit Judge, concurring :

I concur in the judgment and in Judge Fahy's opinion, but wish to add a word

of emphasis on an aspect of the case that I find particularly compelling. That is the fact that, given the Supreme Court's holding in Smith v. Hooey, 393 U.S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575 (1969), that the speedy trial guarantee is not suspended by contemporaneous incarceration on another charge, it took an unconscionable amount of time - without any particular fault other than the system as it then worked - to dispose finally of appellant's pretrial motion to suppress. In short, I consider this case similar to United States v. Perry, in which we upheld the dismissal of an indictment because of a similarly long delay in the disposition of a suppression motion. 353 F. Supp. 1235 (D.D.C. 1973), affirmed by order of this court entered on December 12, 1973.

The salient facts on this score are that on June 17, 1970, promptly after appellant had been found competent to stand trial, he moved to suppress the narcotics evidence on which his conviction ultimately rested. That motion was argued and taken under advisement two days later, but it was not finally disposed of by the trial court until April 12, 1971 - 10 months after filing. The motion was granted, and the Government appealed. It was not until November 9, 1972 that a mandate issued from this court reversing the trial court's suppression of the evidence. Thus the time required for final disposition of the suppression motion ran from June 17, 1970 until November 9, 1972 - 2 years and 5 months.

It is this period of delay, rather than the seven months immediately before trial, that I find unacceptable. That such a delay in the courts may lead to dismissal for lack of speedy trial the Supreme Court made clear in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972):

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. [citation omitted] A more neutral reason such as . . . overcrowded courts should be weighted less heavily but nevertheless should be considered, since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Id. at 531 (emphasis supplied). Our case may indeed be a fortiori after Perry, in which we found excessive a similar delay of only a little more than two years. See 353 F. Supp. at 1236-37.

In his statement of reasons for seeking an en banc rehearing of this case, Judge MacKinnon makes several relevant objections. He would excuse the major part of the delay in the trial court on the ground that the suppression movants did not file their last brief there until March 30, 1971. Briefs opposing and supporting the suppression motion were initially filed in July and August of 1970. The later brief to which Judge MacKinnon refers was the last in a round of "supplemental memoranda" filed by both the defendants and the Government, and occasioned by the District Court's having scheduled a second suppression hearing for March 25, 1971. In the intervening months, it appears that the parties had been awaiting action by the court, and not vice versa.1

Nor is appellant responsible for the delay in the appellate consideration of the suppression matter. To the contrary, the certified record in this case was filed on June 19, 1971, the Government's brief in support of its appeal was filed on September 24, but counsel was not appointed for appellant by this court until November 15, in an order extending time to file brief to December 25. Thereafter, appellant, not the Government, made a motion on March 2 to accelerate oral argument, which was denied.2

As to the existence of prejudice, it is true, as Judge MacKinnon says, that the trial judge's eventual action in making Brown's narcotics sentence run from the date when he was first arrested for murder eliminated the possibility of his having to serve additional time in prison because of the delay. Thus, we do not have the problem, identified in Smith v. Hooey, that delay in trying an already-incarcerated prisoner may deny him the benefit of concurrent sentences, although it perhaps remains true that appellant's anxieties on this score could have been very real and prolonged, since he had no way of knowing that the trial judge was eventually going to extend the favor he did.

The second possible source of prejudice mentioned in Smith v. Hooey is the general anxiety that a prisoner incarcerated on one charge may suffer from having an undisposed indictment for another pending at the same time. Judge MacKinnon discounts this, apparently because he considers that appellant was a fairly hardened criminal. The Supreme Court at least did not distinguish between defendants on the basis of a subjective appraisal of their possible emotional states, and we cannot either.

The third kind of prejudice pointed to by the Supreme Court in Smith v. Hooey was the impairment of the accused's defense. This question came up when appellant's speedy trial motion of October 31, 1972 was finally heard on May 9, 1973 - two weeks before the trial started. The entire colloquy on the speedy trial issue at that hearing is as follows:

MR. CHOROSZET (Brown's counsel): . . . I represent to this Court, Your Honor, that on the 23rd I cannot conceive of having any potential witnesses that have appeared.

THE COURT: What witnesses did you have on May 12, 1971?

MR. CHOROSZET: Well, there was, as I recall, a man by the name of, I think his nickname was Little George. He died. He appeared before you a number of times.

THE COURT: I can't control his death. You wouldn't have him here anyhow.

Now, who else? You had a list of witnesses, you say?

MR. CHOROSZET: I had Nadine Frazier. I have no idea where this lady is today.

THE COURT: Go ahead.

MR. CHOROSZET: I don't know whether Mr. Westbrook will appear in the course of this case or not.

THE COURT: That is for you to determine, counsel. Mr. Westbrook has entered a plea in this case and his address is a matter of record in the probation office of this Court. He is in Atlanta, Georgia, as you well know.

So there is no question about where Mr. Albert Westbrook is. There is no question you were sitting right there in the room, because we have got a statement where he was. We have got his picture there.

MR. CHOROSZET: In any event, Your Honor, as far as I know, on the 23rd, if the Court will proceed with the trial of this case, we take the position that the defendant has been ...

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