691 F.2d 691 (4th Cir. 1982), 81-5159, United States v. Brainer

Docket Nº:81-5159.
Citation:691 F.2d 691
Party Name:UNITED STATES of America, Appellee, v. William BRAINER, Appellant. Eugene Gressman, Esq., Amicus Curiae.
Case Date:October 19, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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691 F.2d 691 (4th Cir. 1982)

UNITED STATES of America, Appellee,


William BRAINER, Appellant.

Eugene Gressman, Esq., Amicus Curiae.

No. 81-5159.

United States Court of Appeals, Fourth Circuit

October 19, 1982

Argued June 10, 1982.

Gerald A. Kroop, Baltimore, Md. (Barbara Mello, Baltimore, Md., on brief), for appellant.

J. Frederick Motz, U. S. Atty., Baltimore, Md. (Steven A. Allen, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Eugene Gressman, School of Law, University of North Carolina, Chapel Hill, N. C., for amicus curiae.

Before WINTER, Chief Judge, PHILLIPS and MURNAGHAN, Circuit Judges.


This case requires us to rule on the constitutionality of an aspect of the Speedy Trial Act of 1972, as amended, 18 U.S.C. §§ 3161 et seq. The district court held the Act invalid as "an unconstitutional encroachment

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upon the Judiciary." United States v. Brainer, 515 F.Supp. 627, 630 (D.Md.1981). 1 It therefore refused to dismiss the indictment against defendant even though trial was delayed beyond the period permitted by the Act. Having been convicted, defendant appeals. Because we find that the Act is constitutional and defendant's trial was in violation thereof, we reverse and remand for further proceedings.


On July 2, 1980, defendant William Brainer and three other persons were indicted for conspiracy to possess with intent to distribute marijuana and methaqualone in violation of 21 U.S.C. § 846. His codefendants were also charged with other offenses; one was convicted of a substantive offense on a plea of guilty, and the other two were acquitted.

At the time of disposition of the codefendants' cases, Brainer was a fugitive from justice. He was arrested in the State of Washington on January 19, 1981, and brought before the district court in the District of Maryland on January 30, 1981. The latest date on which Brainer could have been tried consistently with the Speedy Trial Act was April 10, 1981 (assuming the absence of excludable time). 2 Although apprised of this deadline, the district court scheduled the trial for April 20, 1981.

Before the trial began, Brainer moved to dismiss his indictment for lack of a speedy trial. 3 Encouraged perhaps by the district court's expressed view in an earlier opinion, 4 the government then took the position that the Act was unconstitutional. Upholding that position, the district court denied defendant's motion and held that the strict time limits and mandatory dismissal sanction of the Act infringe on the constitutionally autonomous power of the federal judiciary and offend the constitutional doctrine of the separation of powers. Defendant was then convicted in a bench trial on a stipulated statement of facts and sentenced to two years' probation pursuant to the Federal Youth Correction Act as extended by the Young Adult Offenders Act, 18 U.S.C. §§ 5010(a) and 4216. This appeal ensued.

On appeal, the government joined defendant in urging that the Act is constitutional. Confronted with this anomaly, we appointed an amicus curiae to argue in support of the district court's judgment. 5 The amicus briefed the case and appeared at a second oral argument, at which the government and defendant were also heard.


Before reaching the constitutional question at hand, we must consider jurisdictional issues raised by the government's

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change of position on appeal: namely, whether that development moots the case or whether the lack of adversariness in the parties' legal arguments on appeal deprives this suit of the status of a case or controversy within the meaning of Article III of the Constitution. Although neither the parties nor the amicus question our power to decide this case, we must make an independent determination of our jurisdiction whenever its existence may be in doubt.

There is no question but that the parties litigated a case or controversy as adversaries in the district court. Defendant sought to avoid an adjudication of guilt and imposition of sentence by having his indictment dismissed for violation of the Act, and the government sought to hold him to the charges by asserting the invalidity of the statute on which he relied. The district court decided the issue on the merits, struck down the Act, and proceeded to convict and sentence defendant in spite of the fact that the Act mandated dismissal.

We acquired jurisdiction when Brainer filed his notice of appeal. At that critical juncture, the parties were definitely embroiled in a pressing controversy which in no sense had become moot: defendant was still opposing criminal charges, and the government was resting on its victory. It had taken no steps to relieve defendant of the judgment of conviction or of the restrictions imposed on him by the sentence of probation.

Under the circumstances, we think it clear that the government's subsequent change of position neither mooted the case nor otherwise transformed it into something less than a case or controversy. To be sure, the arguments of counsel are no longer mutually adverse; the government now concedes the correctness of defendant's view of the law and unites in his request that the judgment against him be reversed. But the Supreme Court has said that no confession of error by the government respecting a criminal conviction shall "relieve this Court of the performance of the judicial function ... to examine independently the errors confessed." Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511-512, 86 L.Ed. 832 (1941). See also Casey v. United States, 343 U.S. 808, 809-10, 72 S.Ct. 999, 1000, 96 L.Ed. 1317 (1952) (Douglas, J., dissenting); Senior v. Braden, 295 U.S. 422, 440, 55 S.Ct. 800, 806, 79 L.Ed. 1520 (1935) (Stone, J., dissenting).

When the government confesses error in the Supreme Court, and thus abandons a position taken in a lower court, the Court commonly appoints an amicus to assert the abandoned cause. See, e.g., Goldsboro Christian Schools v. United States, --- U.S. ----, 102 S.Ct. 1964, 72 L.Ed.2d 437 (1982); Brown v. Hartlage, 454 U.S. 936, 102 S.Ct. 471, 70 L.Ed.2d 245 (1981); Granville-Smith v. Granville-Smith, 349 U.S. 1, 4, 75 S.Ct. 553, 555, 99 L.Ed. 773 (1955). We have followed that procedure here. The necessary implication of the Supreme Court's practice is that a lawsuit neither becomes moot nor loses the adversariness essential to a case or controversy merely because one party, on appeal, endorses its adversary's view of the law.

Having determined that we have jurisdiction to proceed, we see no way of avoiding the constitutional issue on which this case turns. The district court, at the government's urging, squarely ruled the Act unconstitutional. The judge who so ruled can be expected to adhere to that ruling in future cases unless we instruct otherwise. See note 1 supra. Apparently, however, his view has not been endorsed by other judges of his district. As a result, there is a serious risk of inconsistency in the administration of criminal justice in that district. Future cases, however, are unlikely to present the issue in a better posture because, unless the government reverses its position a second time, it will always find itself in agreement with those defendants who argue that the Act is constitutional and that trials held in clear violation of the Act are invalid. In our view, a constitutional determination is necessary to the disposition of the present case and the ends of justice would not be served by deferring the issue for another day.

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We, of course, take notice that our brother who concurs specially would decide the case on the very narrow ground that dismissal of the indictment is required because of the violation of Local Rule 30(4)(a) of the District of Maryland which, with exceptions inapplicable here, sets a seventy-day limit to commence the trial of criminal cases. He is of the view that the Maryland district judges have independently concluded to set trial time limits for the administration of criminal justice in the District of Maryland which are in concordance with the standards of the Speedy Trial Act. Although fully cognizant of our obligation not to reach out to decide constitutional questions when cases can be terminated on non-constitutional grounds, we are unable to accept his thesis. Maryland's Local Rule 30 recites that it is adopted "(p) ursuant to the requirements of Rule 50(b) of the Federal Rules of Criminal Procedure, the Speedy Trial Act ... and the Federal Juvenile Delinquency Act ...." Since Rule 50(b) is merely a directive to conduct studies for improvement in the administration of criminal justice and to comply with the Speedy Trial Act and since defendant in this case is not a juvenile, it is manifest that Local Rule 30, so far as it applies to defendant, is one which was adopted by the district court under the authority of the Act. If the rule was violated it is equally clear that the question of the constitutional validity of the Act is raised.

The clearest indication of the necessity of deciding the constitutional issue is found in the sanctions provisions of Local Rule 30. Section 10(a) states:

Dismissal. Failure to comply with the time limits prescribed herein shall not require dismissal of the prosecution, except as required by 18 U.S.C. sections 3162, 3164, 5036, or the Interstate Agreement on Detainers. The court retains the power to dismiss a case for unnecessary delay pursuant to Rule 48(b) of the Federal Rules of Criminal Procedure. 6

From this language we think it apparent that the only mandatory sanction for violation of the time limitation requirements of the rule is that contained in the Act, thus again bringing into issue the constitutional validity of...

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