U.S. v. Lindsey, s. 90-3173

Citation47 F.3d 440
Decision Date14 February 1995
Docket NumberNos. 90-3173,90-3191,s. 90-3173
PartiesUNITED STATES of America, Appellee, v. Albert G. LINDSEY, Appellant. UNITED STATES of America, Appellee, v. Arthur W. ROBINSON, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia, No. 89cr00302-01 and 89cr00302-02.

Jensen E. Barber, appointed by this Court, Washington, DC, argued the cause and filed the briefs, for appellant Arthur W. Robinson.

Albert G. Lindsey filed briefs, pro se.

James W. Cooper, Asst. U.S. Atty., Washington, DC, argued, for appellee pro hac vice in No. 90-3191. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John R. Fisher and Daniel M. Zachem, Asst. U.S. Attys., Washington, DC.

Before EDWARDS, Chief Judge, WALD and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Albert G. Lindsey and Arthur W. Robinson appeal from their convictions in the United States District Court for the District of Columbia for possession with intent to distribute crack cocaine, simple possession of marijuana, and use of a firearm during and in connection with a drug trafficking offense. 1 We remand to the district court with instructions to vacate one of each appellant's two convictions under 18 U.S.C. Sec. 924(c)(1), for use of a firearm during and in connection with a drug trafficking crime. In all other respects, we affirm.

I. BACKGROUND

Responding to complaints from a neighboring tenant that someone was using an apartment that should have been vacant, building management personnel entered the supposedly vacant unit, Apartment 202 at 4287 Sixth Street, Southeast, Washington, D.C., and discovered lawn chairs and stacks of cash. The building personnel called the Metropolitan Police Department. Police officers covered the rear windows while other officers knocked on the door, announced their presence, then entered the apartment, where they arrested appellants Lindsey and Robinson. From inside the apartment, the police recovered loose and packaged rocks of crack cocaine, marijuana, a gym bag containing two handguns and ammunition, $2,589 in cash, and drug processing paraphernalia including ziplock bags, a bag sealer, a triple beam scale, a coffee pot containing cocaine residue, an electronic beeper, and baking soda. The police also recovered a plastic vial containing crack cocaine from the ground outside the apartment, which an officer had observed being thrown from the apartment by a person he identified as Lindsey. They also found a smaller amount of crack cocaine on Lindsey's person. The only furniture in the apartment was lawn chairs and "old, beat-up" stereo components. Officers found no clothing or other evidence that anyone was living in the apartment. Police found a key to the apartment in a set of keys on Robinson's person, and another key to the apartment in a set of keys on the kitchen counter.

II. ANALYSIS
A. Speedy Trial

Appellant Lindsey contends that his Sixth Amendment right to a speedy trial was violated because his trial did not commence until sixteen months after his arrest. Assuming arguendo that Lindsey preserved his Sixth Amendment speedy trial claim, 2 that claim is without merit. Although a sixteen-month delay before trial is not extraordinary, any delay of a year or more triggers our scrutiny. Doggett v. United States, --- U.S. ----, ---- n. 1, 112 S.Ct. 2686, 2691 n. 1, 120 L.Ed.2d 520 (1992); United States v. Jones, 524 F.2d 834, 849 (D.C.Cir.1975). Under Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), we use a multi-factor balancing test to review a speedy trial claim, weighing the length of delay, reasons for the delay, the extent to which the defendant pressed his right in the trial court, and prejudice resulting from the delay. Here, the delay was not severe, and any delay beyond twelve months is attributable to defendants' own pretrial motions to suppress evidence and to dismiss on constitutional and other grounds, as well as to the unavailability of defendants' counsel for earlier trial dates, for which the government cannot be faulted. Lindsey did not press his Sixth Amendment speedy trial right in the trial court. Finally, Lindsey was not substantially prejudiced by the delay. Prejudice "should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect," including "prevent[ing] oppressive pretrial incarceration," "minimiz[ing] anxiety and concern of the accused," and "limit[ing] the possibility that the defense will be impaired" by dimming memories and loss of exculpatory evidence. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Here, Lindsey was not incarcerated prior to trial. Nor did the delay in any way impair his ability to prepare his defense by, for example, making witnesses unavailable, causing witnesses' recollections to be diminished, or causing evidence to be lost or destroyed with the passage of time. Cf. Doggett, --- U.S. at ----, 112 S.Ct. at 2692 (of these three forms of prejudice, impairment of defense is "the most serious" for purposes of Barker analysis). Even without incarceration, of course, an accused person will always be "disadvantaged by ... living under a cloud of anxiety, suspicion, and often hostility." Barker, 407 U.S. at 533, 92 S.Ct. at 2193. But this factor alone is neither "necessary [n]or sufficient ... to the finding of a deprivation of the right of speedy trial"; it "must be considered together with such other circumstances as may be relevant." Id. Here, the short delay could have caused only a relatively small additional increment of anxiety and concern. More importantly, because the appellants caused the delay, they must also shoulder responsibility for the accompanying lengthened period of anxiety and concern. Thus, the Barker factors, considered together, do not support Lindsey's claim that he was deprived of his right to a speedy trial. Cf. Barker, 407 U.S. at 534-35, 92 S.Ct. at 2194 (delay of five years permissible where defendant did not actively press speedy trial claim at trial; "living for over four years under a cloud of suspicion and anxiety" resulted in "minimal" prejudice).

B. Double Jeopardy

Lindsey contends that because he was first indicted in the District of Columbia Superior Court, and later indicted and prosecuted for the same offense in the United States District Court, he suffered double jeopardy. Since Lindsey's District of Columbia case was dismissed before a jury was empaneled and sworn, however, jeopardy never attached in the first proceeding. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642 (1977). Two indictments for the same offense may be outstanding at the same time if jeopardy has not attached, and a court may dismiss either indictment before the jury is sworn without offending double jeopardy principles. United States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir.1983).

Lindsey nonetheless argues that because Judge Queen of the District of Columbia Superior Court dismissed the case against him "with prejudice," he could not be prosecuted for the same offense in the district court. This contention is without merit. Dismissal of an indictment before trial, with or without prejudice, does not itself invoke jeopardy where it does not involve a determination of the underlying facts. United States v. Stricklin, 591 F.2d 1112, 1120 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979). Nor was the dismissal here the equivalent of an acquittal. Although in civil suits, dismissal "with prejudice" is said to operate as an adjudication on the merits, is entitled to res judicata effect, and thus bars further litigation between the parties on the same cause of action, 9 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE: CIVIL Sec. 2364 (1995), for double jeopardy purposes a dismissal is an acquittal "only when the ruling of the judge, whatever its label, actually represents a resolution in the defendant's favor, correct or not, of some or all of the factual elements of the offense charged," United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (internal citation and quotation omitted). Here the dismissal "with prejudice" was not in any sense a determination of Lindsey's factual guilt or innocence. Judge Queen herself indicated that the dismissal was intended merely to yield jurisdiction to the federal district court, and she certainly had no power to dismiss the separate indictment then pending in the United States District Court. Understood in its proper context, then, Judge Queen's dismissal "with prejudice" merely operated to bar reprosecution in the District of Columbia courts, was not an acquittal, and therefore did not bar the then-pending prosecution in federal district court on double jeopardy grounds.

C. Sufficiency of Evidence

Robinson contends the evidence was insufficient to sustain his convictions for possession with intent to distribute crack cocaine and simple possession of marijuana. Lindsey and Robinson contend the evidence was insufficient to sustain their convictions for use of a firearm during and in connection with a drug trafficking offense. In reviewing these claims, we must consider the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), recognizing that a "jury is entitled to draw a vast range of reasonable inferences from [the] evidence," United States v. Long, 905 F.2d 1572, 1576 (D.C.Cir.), cert. denied, 498 U.S. 948, 111 S.Ct. 365, 112 L.Ed.2d 328 (1990). We grant "the government the benefit of all reasonable inferences that may be drawn from the evidence," United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986), and we will affirm if "any rational trier...

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