Government of Virgin Islands v. Burmingham, 85-3159

• Decision Date: 17 April 1986
• Docket Number: No. 85-3159,85-3159
• Citation: 788 F.2d 933
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. BURMINGHAM, Andrew, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 933

788 F.2d 933

GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. BURMINGHAM, Andrew, Appellee.

No. 85-3159.

United States Court of Appeals, Third Circuit.

Argued Dec. 3, 1985.

Decided April 17, 1986.

J'Ada M. Finch-Sheen, Atty. Gen., Jacqueline A. Drew, (Argued), Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellant.

John J. Mahon, (Argued), Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellee.

Before HUNTER, GARTH, and BECKER, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

On this appeal, the Government as appellant argues that Andrew Burmingham, who had been charged with various criminal offenses under the Virgin Islands Code, had not been deprived of his right to a speedy trial, even though the Information charging him was filed in the Territorial Court on December 1, 1980 and some eighteen months later no trial had yet been had. The Territorial Court denied Burmingham's motion to dismiss the Information under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. and Federal Rule of Criminal Procedure 48(b). After a nonjury trial held in May, 1982, Burmingham was convicted on all four counts of the Information. On appeal to the district court this decision was reversed. We now vacate the order of the district court.

I.

Appellee Andrew Burmingham was involved in a fight with one Selvin Joseph, in which Burmingham attacked Joseph with a machete. The only witness to this fight, aside from the two participants, was Ruth Joseph, formerly the girlfriend of Burmingham and now Selvin Joseph's wife. Both men were wounded and required hospital treatment. Burmingham was arrested on November 26, 1980. On December 1, 1980, the Government filed an Information in the Territorial Court. Burmingham was charged with three counts of third degree assault and one count of unlawful possession of a deadly weapon during the commission of a crime of violence, all in violation of Virgin Islands statutes. He was arraigned on December 9, and the case was subsequently set for trial on March 30, 1981.

On March 11, 1981, Burmingham moved for dismissal of the Information under the Speedy Trial Act, 18 U.S.C. Sec. 3161, et seq. and Fed.R.Crim.P. 48(b). The Territorial Court took Burmingham's motion for dismissal under advisement, along with other similar motions, in order to seek an in banc answer of that court to the question of whether the Speedy Trial Act was applicable to criminal proceedings in the Territorial Court. However, the Territorial Court never considered the question in banc.

Some thirteen months later, on April 16, 1982, the Territorial Court denied Burmingham's motion to dismiss the charges. Ironically, it was Burmingham's assertion of this purported statutory speedy trial claim that stretched the delay so that it exceeded eight months. LaFave & Israel, Criminal Procedure Sec. 18.2, at 405 (quoting Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980)).

In denying Burmingham's motion, the Territorial Court followed Government of the Virgin Islands v. Albert John Quetel, 18 V.I. 145 (Terr.Ct.1982), which held the Speedy Trial Act inapplicable to Territorial Court proceedings. The Territorial Court went on to hold that dismissal pursuant to Rule 48(b) was not warranted. Applying the constitutional speedy trial analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct 2182, 33 L.Ed.2d 101 (1972), the court concluded that:

Although there has been excessive delay in bringing the defendant to trial, and the reason for the delay is chargeable mostly to the court, these factors are substantially outweighed by the fact that the delay was both necessary and justifiable, by the defendant's failure to assert his right to a speedy trial, and particularly by the fact that the defendant has not been prejudiced by the delay.

Following the denial of his speedy trial motion, on May 14, 1982, Burmingham was tried in a bench trial and was convicted on all four counts.

On appeal to the district court, Burmingham for the first time raised a Sixth Amendment claim, while also pressing his Rule 48(b) and Speedy Trial Act claims. The district court applied the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to Burmingham's constitutional claim. Unlike the Territorial Court, the district court concluded that Burmingham had been denied his right to a speedy trial. By its order of February 27, 1985, the district court vacated the judgment and conviction entered by the Territorial Court, and dismissed the Information filed against Burmingham. ¹

II.

The Government contends that Burmingham, by not raising his Sixth Amendment claim at the trial level, has forfeited his right to do so now. This argument is supported by the in banc holding of this court that "it will not entertain arguments on appeal based on objections not timely raised below." United States v. Gibbs, 739 F.2d 838 (3d Cir.1984).

In Gibbs, this court held that a constitutional objection taken after both parties had rested at trial, and which raised issues different from the evidentiary (statutory) objection taken during trial, was not sufficient to preserve the later raised constitutional issue. Gibbs had objected to certain co-conspirator evidence at trial, referring to Federal Rule of Evidence 801(d)(2)(E) as the basis for his objection. No constitutional (Sixth Amendment) objection had ever been raised before the parties had rested. After testimony had closed and the parties had rested, and the court had refused to reconsider its evidentary ruling, Gibbs for the first time made a general Sixth Amendment motion to strike the evidence. Gibbs had contended that the Government had the burden of proving the unavailability of a witness in order to adduce hearsay testimony from a co-conspirator. ² This challenge too was denied by the district court.

On appeal to this court, we noted that issues different from the Rule 801 objection were raised by the Confrontation Clause objection. We also observed that the Government had not been given the opportunity to meet the objection--primarily, we observed that the Government could not at that stage satisfy the issue of witness availability. We did not reach the merits of Gibbs' argument, holding instead that the issue had not been preserved for appeal.

To the extent that both Gibbs and Burmingham first raised statutory objections and only thereafter raised constitutional objections, it would appear, at least on the surface, that no distinction could be drawn between the two cases. In such a situation, Gibbs obviously would control and we would be compelled to hold that Burmingham, by failing to raise his constitutional objection before the Territorial Court, came within the Gibbs doctrine and had not preserved a constitutional issue for review in this court.

However, there are two significant differences between Gibbs and Burmingham. First, whereas in Gibbs the constitutional objection could have been taken at the same time as the evidentiary objection (thereby affording the Government time to respond to the claimed deficiency in proof), here Burmingham, at the time he made his motion under the Speedy Trial Act and Rule 48(b), could not legitimately have raised a constitutional claim that his speedy trial right had been violated. Burmingham's motion before the Territorial Court was made less than five months after his arrest and indictment. A delay of that length is not sufficiently prejudicial to trigger a constitutional inquiry. See La Fave & Israel, Criminal Procedure Sec. 18.2, at 405. Our research has disclosed no case which we find persuasive that has held a delay of less than five months to constitute a violation of the constitutional right to a speedy trial.

Second, while concededly Burmingham did not, and we believe could not, have raised a constitutional challenge before the Territorial Court, his contention that the indictment should be dismissed under Rule 48(b) ³ led the Territorial Court to engage in the same analysis to resolve that issue as it would have been obliged to engage in had the constitutional claim been presented to it. ⁴ The Territorial Court in Burmingham did in fact employ the same analysis in a statutory context that it would have employed in the constitutional context. Thus, the Government was not, and could not have been, prejudiced by the failure of Burmingham to specifically delineate the constitutional claim under which he subsequently proceeded. This was not the case in Gibbs, where the statutory analysis differed substantially from the Sixth Amendment, thus resulting in prejudice to the Government. We are satisfied, therefore, that Gibbs does not control the preservation issue raised by the Government in this case.

Accordingly, we proceed to the merits of the Government's argument that Burmingham's Sixth Amendment right to a speedy trial was not violated.

III.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court adopted a balancing test to determine whether a delay in bringing a defendant to trial infringed upon his right to a speedy trial. That test, recently reaffirmed in United States v. Loud Hawk, --- U.S. ----, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), requires that we consider four factors: the length of the delay; the reason for the delay; defendant's assertion of the right; ⁵ and prejudice to the defendant. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192.

Prejudice is the key factor here, and its absence is decisive in this case. The Supreme Court has identified three interests of defendants that may be prejudiced by denial of the right to a speedy trial: preventing oppressive...