Sell v. U.S.

• Decision Date: 12 May 1987
• Docket Number: No. 85-1674.,85-1674.
• Citation: 525 A.2d 1017
• Parties: Albert J. SELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

525 A.2d 1017

Albert J. SELL, Appellant, v. UNITED STATES, Appellee.

No. 85-1674.

District of Columbia Court of Appeals.

Argued January 21, 1987.

Decided May 12, 1987.

Eric J. Branfman, with whom Robert E. Greenberg, Washington, D.C., was on the brief, for appellant.

Mary Incontro, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Mark H. Dubester, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MACK, BELSON and ROGERS, Associate Judges.

ROGERS, Associate Judge:

In this appeal from his conviction of corrupt influence (D.C. Code § 22-704) (1981), sodomy (id. § 22-3502), and obstructing justice (id. § 22-703), appellant Albert J. Sell contends principally that he was denied his sixth amendment right to a speedy trial as a result of a fifty-one month delay between indictment and trial. At issue in particular is the appropriate weight which should be accorded to the delay caused by two interlocutory appeals taken by the government in light of the recent opinion of the Supreme Court in United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986).¹ We hold that the government has failed to meet its burden to show that appellant's right to a speedy trial was not violated. Accordingly, we reverse.

I.

This case arose out of two confrontations between appellant, a ten-year veteran of the Metropolitan Police Department, and Lois Frontuto, a known prostitute. Frontuto testified that following her arrest by appellant on September 30, 1980, appellant had released her after he had driven her to an empty garage and she had performed oral sodomy on him. After appellant drove her back to 15th and Massachusetts Avenue, she flagged down a police officer and told him what had happened. Appellant returned to the scene, and Frontuto identified him. Another officer drove her around the area until she located the garage where the alleged events occurred and she identified a tissue which she had thrown out of the police car window onto the garage floor after using it to wipe out her mouth when appellant ejaculated into it.

The second confrontation occurred on March 4, 1981 when Frontuto met appellant while she was wearing a concealed body tape recorder supplied by the police. In this taped conversation, Frontuto told appellant that she had been subpoenaed to testify before the grand jury, and he advised her to "tell them you don't want anything else to do with it" and repeatedly pointed out "they can't make you talk." He also threatened to sue her for defamation, and warned that his fellow officers would give her a hard time if she persisted in her complaint against him.

At trial appellant denied the charges. He testified that Frontuto was angry with him because he had forced her to return money which she claimed she had earned by soliciting two men for prostitution. Regarding the taped conversation, appellant claimed that he told Frontuto not to say anything so she would not tell more lies.

Appellant was indicted on June 3, 1981. On October 28, 1981 a jury trial commenced, but a mistrial was declared the next day. On January 18, 1982 appellant's motion to suppress the March 4, 1981 tape recording was granted. The government appealed, and on January 31, 1983 this court remanded the case for clarification of the standard applied in assessing Frontuto's consent to the recording of her conversation with appellant. Thereafter, the trial judge granted a second motion to suppress on January 25, 1984, and the government again appealed. Four months later the government filed a motion to expedite under D.C.Code § 23-104(e) (1981), which provides that government appeals from rulings issued before or during trial "shall be expedited." The motion was granted and on January 23, 1985, this court reversed the order of suppression. United States v. Sell, 487 A.2d 225 (D.C.1985). The second trial commenced on August 26, 1985, almost fifty-one months after appellant was indicted.

II.

Appellant contends that his sixth amendment right to a speedy trial was violated. In assessing this claim, we must examine four factors: the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); Graves v. United States, 490 A.2d 1086, 1091 (D.C.1984) (en banc), cert. denied, ___ U.S. ___, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986).

Length of Delay

When the delay is a year or more, "the accused has established a prima facie sixth amendment violation, and the burden shifts to the government to prove that no violation has occurred." Parks v. United States, 451 A.2d 591, 600 (D.C.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983). See also Graves, supra, 490 A.2d at 1091; Jackson v. United States, 503 A.2d 1225, 1227-28 (D.C.1986). Moreover, the government's burden to overcome the presumption of prejudice "increases in proportion to the length of the delay." Graves, supra, 490 A.2d at 1091. Greater delay is tolerated the more serious and complex the charge. Id. The trial court found that the fifty-one month delay from appellant's indictment on June 3, 1981, until the commencement of his second trial on August 26, 1985 constituted "an extreme delay in this rather simple case which gives prima facie merit to the defendant's claim that he has been denied his constitutional right to a speedy trial." We agree.

Reason for the Delay

Different reasons for delay of a trial are to be assigned different weights. Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192. Willful attempts to delay the trial for the purpose of impairing the defense are weighted heavily against the government; institutional delays are considered neutral; and delays for valid reasons are considered justified. Id. This court has "created an intermediate category of `significant' delay for government actions deemed less culpable than deliberate foot-dragging to gain tactical advantage but more culpable than the neutral category exemplified by failure to advance trial dates due to court congestion." Graves, supra, 490 A.2d at 1092, citing Day v. United States, 390 A.2d 957, 968 (D.C.1978) (government failure to move for expedition of interlocutory appeal constitutes significant delay); Bethea v. United States, 395 A.2d 787, 791-92 (D.C.1978) (substantial weight assigned to delay due to government indifference after numerous continuances and assertion of the right); and Miller v. United States, 479 A.2d 862, 866 (D.C.1984) (government failure to take reasonable steps to bring case to trial is significant delay).

The key issue in the instant case revolves around the weight to be given to almost two years consumed by two interlocutory appeals taken by the government,² and the delay caused by the government's failure to expedite the appeals as required by D.C. App.R. 4-III(a).³ Appellant argues that the trial court correctly labeled "significant" twelve months of delay caused by the government's failure to expedite. The government responds that Loud Hawk, supra, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640, overrules our decision in Graves, supra, 490 A.2d at 1096, to the extent that reasonable appellate delay must be characterized as justifiable delay, rather than neutral delay. It further argues that Loud Hawk implies the failure to move for expedition is to be treated simply as one factor, and the delay caused thereby ascribed less than significant weight. The government does not contend, however, that Loud Hawk suggests this court cannot by rule require interlocutory appeals to be expedited by the parties. Indeed, other than the general provision in the federal statute, 18 U.S.C. § 3731 (requiring, inter alia, the prosecutor to certify that appeal "is not taken for purpose of delay and that the evidence is a substantial proof of fact material in the proceeding"), which is similar in some respects to D.C.Code § 23-104(e), the Supreme Court in Loud Hawk was not faced with a rule comparable to our Rule 4-III(a).⁴

We agree that Loud Hawk has partially overruled our decision in Graves by requiring that reasonable appellate delay be treated as justifiable delay in a speedy trial analysis. But we do not agree that delay caused by the failure of the government to comply with the rules of this court requiring expedited consideration of interlocutory appeals can no longer be treated as significant. Not only was the Supreme Court not presented with that issue in Loud Hawk, but the only appeal in Loud Hawk which the Court deemed to be relevant to its speedy trial analysis was, in fact, an expedited appeal. 106 S.Ct. at 653, 654. Nor does Loud Hawk offer guidance on whether the failure to expedite is to be treated merely as one of several factors in determining the weight of appellate delay toward a speedy trial claim, and we therefore follow the analytical framework adopted by the en banc court in Graves.

Turning to the facts of the instant case, each interlocutory appeal took almost exactly one year. The government did not take any of the steps required by D.C. App.R. 4-III(a) in either appeal, nor did it move to expedite the first appeal under D.C.Code § 23-104(e). In the second appeal the government's motion to expedite under § 23-104(e) was not filed until four months after it had filed its notice of appeal. Notwithstanding the grant of its motion for expedition, the government subsequently moved for a continuance to file its reply brief, explaining that time was needed for a supervisor to review the brief, but suggesting that the continuance need not have the effect of postponing the oral argument which was already scheduled. In Graves, supra, 490 A.2d at 1095-96, we pointed out that Rule 4-III(a) "generally requires the parties to employ common sense measures to expedite the appeal." We stated:

In weighing the delay...