U.S. v. Robertson, 85-6083

• Decision Date: 27 January 1987
• Docket Number: No. 85-6083,85-6083
• Parties: UNITED STATES of America v. Wilson ROBERTSON, Jr., a/k/a James Collins, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 254

810 F.2d 254

258 U.S.App.D.C. 135

UNITED STATES of America v. Wilson ROBERTSON, Jr., a/k/a James Collins, Appellant.

No. 85-6083.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 26, 1986.

Decided Jan. 27, 1987.

Appeal from the United States District Court for the District of Columbia, (Criminal No. 84-00361-01).

Jean M. Scott (appointed by this Court) for appellant.

Barry Coburn, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, and Thomas J. Tourish, Jr., Asst. U.S. Attys., Washington, D.C., were on brief for appellee.

Before: SILBERMAN and WILLIAMS, Circuit Judges, and JAMESON, ^* Senior District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

Appellant challenges his convictions on two drug-related federal offenses as violating two of the time limits imposed by the Speedy Trial Act (the "Act"), 18 U.S.C. Secs. 3161-3174 (1982 & Supp. III 1985). First, he asserts that the period between his arrest on July 25, 1984 and his indictment on October 4, 1984 violated the 30-day limit for the period between arrest and indictment. 18 U.S.C. Sec. 3161(b) (1982). The claim fails because it depends upon appellant's erroneous contention that his arrest by District of Columbia officers on a District of Columbia charge started the Speedy Trial clock ticking.

After appellant's trial and conviction on that indictment, a second period of alleged undue delay ensued, namely the stretch between the court's remand of the case to the District Court on July 11, 1985 and the commencement of his retrial on November 11, 1985. Appellant contends that this period exceeds the 70-day limit for the period between an action occasioning retrial and the start of that trial. 18 U.S.C. Sec. 3161(e) (1982). The claim turns on analysis of the Act's "tolling" provisions. 18 U.S.C. Sec. 3161(h) (1982). We find those provisions applicable to the delay resulting from appellant's transportation to this district, even though such transportation proved futile, and also to the extra time spent on a pretrial motion due to the government's delay in filing its opposition. Accordingly, we affirm the conviction.

I

On July 25, 1984 a warrant was issued for appellant's arrest on charges of second-degree murder while armed, D.C. Code Ann. Secs. 22-2403, 22-3202 (1981 & Supp.1986). That same day, District of Columbia Metropolitan Police officers spotted appellant and apprehended him after a high-speed car chase through the streets of Northwest Washington. The arresting officers searched appellant's car and discovered a blue nylon bag containing 95 plastic bags of cocaine and another bag containing a loaded shotgun.

The following day, July 26, 1984, appellant was charged in the Superior Court for the District of Columbia with second-degree murder while armed, D.C. Code Ann. Secs. 22-2403, 22-3202 (1981 & Supp.1986), and with possession of a controlled substance with intent to distribute, D.C. Code, Ann. Sec. 33-541(a)(1) (Supp.1986). The murder charge was prosecuted in the District of Columbia Superior Court in a proceeding not relevant to this appeal, and the drug charge was dismissed on the government's motion on October 31, 1984.

On October 4, 1984 a federal grand jury indicted appellant for possession with intent to distribute a narcotic drug, 21 U.S.C. Sec. 841(a)(1) (1982), and for carrying a concealed weapon, D.C. Code Ann. Sec. 22-3204 (1981). ¹ Appellant alleges that the delay between his arrest on July 25, 1984 and his indictment on federal charges on October 4, 1984 violated the Act.

Section 3161(b) requires that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." To find a violation in this case requires a conclusion that appellant's arrest by District of Columbia Metropolitan Police officers constituted an arrest "in connection with" the federal charges on which appellant was tried and convicted. The Act does not support that conclusion.

It is beyond dispute that Sec. 3161(b) does not prevent the government from indicting a defendant on federal charges more than thirty days after his arrest on similar state charges. E.g., United States v. Adams, 694 F.2d 200, 202 (9th Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983); J. Cissell, Federal Criminal Trials Sec. 12-1(c)(2), at 347 (1983); R. Misner, Speedy Trial Federal and State Practice Sec. 17-2, at 219-221 (1983). "Since the Act applies only to federal prosecutions it is only a federal arrest, not a state arrest, which will trigger the commencement of the time limits set in the Act." United States v. Iaquinta, 674 F.2d 260, 264 (4th Cir.1982) (emphasis in original). Accord United States v. Mejias, 552 F.2d 435, 440-43 (2d Cir.1977), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977); Judicial Conference of the United States, Committee on the Administration of the Criminal Law, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended 4 (1984) [hereinafter Guidelines ]. Courts have applied this principle even where the federal charges are based on the very conduct occasioning the state arrest, United States v. Iaquinta, supra; United States v. Mejias, supra; United States v. Lai Ming Tanu, 589 F.2d 82, 88 (2d Cir.1978) ("The prosecution in practical effect, though not technically, was the same prosecution."); where the state arrest is the product of a joint state-federal operation, with federal officers participating in every stage of the planning and execution, United States v. Iaquinta, supra; United States v. Mejias, supra; United States v. Lai Ming Tanu, supra (joint operation financed entirely by federal government); and where the purpose of the later federal prosecution is to salvage a prosecution after the state authorities ran afoul of state speedy trial limitations, United States v. Lai Ming Tanu, supra; United States v. Ferrs, 503 F.Supp. 187 (E.D.Pa.1980), aff'd without opinion, 676 F.2d 688 (3d Cir.1982).

Thus the only question for this court is whether a District of Columbia arrest should be treated as a state arrest for these purposes. Answering that question in the affirmative is Local Rule 306, the Speedy Trial Plan of the United States District Court for the District of Columbia. The district court promulgated the plan pursuant to the congressional directive that all federal district courts adopt plans providing for "the disposition of criminal cases in accordance with [the Act]." 18 U.S.C. Sec. 3165(a) (1982); Fed.R.Crim.P. 50(b). Section 4 of the plan implements the time limits of Sec. 3161(b) with the following language:

(4) Time Within Which an Indictment or Information Must be Filed.

(a) Time Limits.

If an individual is arrested or served with a summons and the complaint charges a federal offense to be prosecuted in this court, any indictment or information subsequently filed in connection with such charge shall be filed within 30 days of the arrest or service.

* * *

* * *

(c) Measurement of Time Periods.

If a person has not been arrested or served with a summons on a federal charge, an arrest on a federal charge will be deemed to have been made at such time as the person (i) is held in custody solely for the purpose of responding to a federal charge; (ii) is delivered to the custody of a federal official in connection with a federal charge; or (iii) appears before a judicial officer in response to a federal charge. A charge of violation of the District of Columbia Code is not a federal charge within the meaning of this subsection, and the time limits of this rule shall not begin to run with respect to a person charged in the Superior Court of the District of Columbia with a District of Columbia Code offense until such person is charged in this court.

These provisions clearly treat District of Columbia arrests as state arrests for the purposes of Sec. 3161(b), ² and we believe them to be consistent with the Act. There are at least two sound reasons for analogizing District arrests to state, rather than federal, arrests for these purposes. First, the basic practical reason why state arrests do not trigger the Act is equally applicable to District arrests. "[T]o charge the federal government with these state arrests would be to force immediate federal indictments and trials of state arrestees in joint jurisdiction cases, thereby crowding the federal court calendar in contravention of the purpose of the [Act]." United States v. Mejias, 552 F.2d at 442. Pressure to shunt mixed-jurisdiction cases onto the federal side is as objectionable in the District as in the states.

Second, treating District arrests as federal would involve the federal government in District affairs more than Congress has intended. In 1973, Congress adopted the District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (codified at D.C. Code Ann. Secs. 1-201 to -295 (1981 & Supp. 1986). One purpose of the Self-Government Act was "to the greatest extent possible, consistent with the constitutional mandate, [to] relieve Congress of the burden of legislating upon essentially local District matters." D.C.Code Ann. Sec. 1-201(a) (1981). As part of the Self-Government Act Congress granted the District's local government legislative power extending "to all rightful subjects of legislation within the District." D.C. Code Ann. Sec. 1-204. The District of Columbia Council has used this power to enact criminal laws, including the statute under which appellant was initially charged. D.C. Uniform Controlled Substances Act of 1981, 28 D.C. 3081. See Gary v. United States, 499 A.2d 815 (D.C.1985) (en banc) (upholding the D.C. Council's power to enact criminal laws), cert. denied, --- U.S. ----, 106 S.Ct....