U.S. v. Brown

• Decision Date: 10 October 1975
• Docket Number: No. 73-1826,73-1826
• Parties: UNITED STATES of America v. Ronald W. Brown, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1106

520 F.2d 1106

172 U.S.App.D.C. 92

UNITED STATES of America v. Ronald W. Brown, Appellant.

No. 73-1826.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 29, 1974.

Decided Aug. 1, 1975.

Rehearing Denied Oct. 10, 1975.

Walter R. Choroszej, Washington, D.C. (appointed by this Court), for appellant.

Garey G. Stark, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and John E. Drury, III, Asst. U.S. Attys., were on the brief for appellee.

Before FAHY, Senior Circuit Judge, and WRIGHT and McGOWAN, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge FAHY.

Concurring opinion filed by Circuit Judge McGowan.

Statement filed by Circuit Judge MacKINNON, in which Circuit Judge TAMM joins, on denial of sua sponte suggestion for rehearing en banc.

FAHY, Senior Circuit Judge:

This appeal is from convictions of several related offenses under the narcotics laws. ¹ Appellant was arrested March 25, 1969, on a warrant charging first degree murder. The principal evidence in support of the narcotics charges was obtained from a search of an apartment in an attempt to serve the arrest warrant a short time before the arrest was actually made. Appellant was not indicted on the narcotics charges until September 29, 1969, while in custody following the arrest. A superseding indictment was returned February 6, 1970, in which seven additional persons were charged with appellant for violation of those laws. ² His trial on this indictment was not held until May, 1973, more than 4 years after the arrest. In the meantime the cases of the co-defendants had been disposed of, in three instances by dismissal of the indictment as to them for lack of a speedy trial.

Appellant's contentions are that the search referred to was unlawful, with the consequence that important evidence used to convict him was inadmissible, and, secondly, that he too was denied his right to a speedy trial. ³ We sustain the latter contention, and accordingly need not discuss the former. ⁴

I

In computing the time lag before trial we think the starting point is the date of the arrest on the warrant charging murder, March 25, 1969, for it was in attempting to execute that warrant that the principal basis for indictment on the present charges was laid. ⁵ Several circumstances unavoidably contributed to the unusual delay. These include the preparation and trial of the murder case, an appeal from his conviction of second degree murder in that case, reversed by this court, an interlocutory appeal by the United States from an order of the District Court suppressing evidence in the present case, also reversed, and time devoted to determination of appellant's mental responsibility, which led to a bifurcated trial of that question as it affected the homicide case.

Notwithstanding delays incident to the history of the proceedings, we find that as the years passed time was available for trial of this case. Though well utilized no doubt for other purposes the total time became so extended as to lead in the circumstances to be reviewed, to denial of the constitutional right. Even unavoidable delay is not to be disregarded, though the reasons for it bear upon its weight in balancing the factors to be considered in deciding the issue. Among those factors is the special obligation of the United States to press the case to trial as the period of unavoidable delay mounts.

II

We now outline the course of the proceedings.

The first phase of the homicide trial was promptly held following the arrest March 25, 1969. A verdict of guilty of second degree murder was rendered October 24, 1969. Before sentence, however, appellant on November 12, 1969, was committed on his motion to St. Elizabeths Hospital for mental examination. The hospital reported on April 8, 1970, that he was competent. ⁶ On May 25, 1970, however, the court, while finding him competent to stand trial, was not satisfied as to appellant's mental condition and ordered a bifurcated trial to determine the matter. This second phase of the trial for murder was not held for sixteen months after it was ordered. On the 22nd of September, 1971, it resulted in a finding that appellant was responsible. The murder conviction then became final. Appellant appealed and this court reversed ⁷ about 27 months later. The case was returned to the District Court in January, 1974, for a new trial. ⁸

From September 22, 1971, when the bifurcated trial was concluded, to May 24, 1973, when the present charges were tried, 20 months elapsed. During 7 of these months, from all that appears from the record, this case could have been tried. We reach this conclusion as follows: In June, 1970, appellant moved to suppress evidence. ⁹ His motion was acted upon April 12, 1971, when it was granted. ¹⁰ The United States appealed and this court reversed the suppression order September 13, 1972, ¹¹ and denied rehearing October 12, 1972. As we have seen the appeal in the homicide case was then pending, and so continued well beyond the date of trial of the present case in May, 1973, seven months after termination of the litigation over the suppression order and 20 months after termination of the bifurcated trial. The case had already been pending more than 3 years when in October, 1972, the reversal of the suppression order became final, even if the time lag is considered to have begun as late as the return of the indictment in September, 1969.

The failure to bring the case to trial during the 7 months from October 12, 1972, to May, 1973, after so long a previous delay, is by no means the only reason for our concern. This apparently open period would have been substantially enlarged except for previous significant delays. Thus, appellant's motion to suppress evidence, argued first in June, 1970, was not acted upon until April 12, 1971, ten months later, when it was granted leading then to the interlocutory appeal. That appeal no doubt would have been terminated prior to October 12, 1972, had the motion to suppress been more promptly decided, which would have significantly enlarged the open period of seven months to which we have referred. Moreover, as we have shown, the total time consumed in reaching a final disposition of the motion to suppress was 2 years and 4 months, ranging from June, 1970 to October 12, 1972. The narcotics case had then been pending 3 years and 1 month from the date of the indictment in September, 1969, and 3 years and 7 months from the date of the search and arrest March 25, 1969. The period thus consumed is excessive considered alone, aside from its contraction of the period of free time which otherwise would have been available to try this case during the pendency of the appeal in the homicide case.

Promptly after appellant lost the favorable decision of the District Court suppressing evidence, he moved on October 31, 1972, for dismissal of the indictment for want of a speedy trial, urging prejudice in having to proceed, for "having been in jail [he] has lost contact of some or all of his potential witnesses; some ... are no longer in this jurisdiction or have passed away during the delay of the last four years." The motion appears not to have been heard until May 9, 1973. On that date counsel again argued, inter alia, that after "four years" there was "absolutely no way, Your Honor, that I can possibly have any kind of a defense, any witnesses as far as protecting the rights of my client." He named two witnesses who had once been but now were no longer available to testify, a man nicknamed "Little George" who had since died, and Nadine Frazier, the woman whose apartment was searched on the date of appellant's arrest in March, 1969. ¹²

Counsel also pointed out that the court had already dismissed for want of a speedy trial the indictment against three co-defendants included in the superseding indictment of February 6, 1970, upon which appellant was to be tried. The court, in denying appellant's motion, pointed to the difference in appellant's case from the others, due to the fact that the murder case was also to be disposed of. The judge stated that the Court of Appeals would not have permitted him to have allowed the prosecutor to harass counsel for defendant by forcing this case to trial, presumably while the murder case was pending. But, as we have seen, the bifurcated trial of the murder case had been concluded September 21, 1971, and this motion to dismiss was being argued May 9, 1973, nineteen months later.

III

As we analyze the rather complicated proceedings, the period of approximately four years is attributable primarily to the operation of the system. Although differences of opinion may be justified as to whether any substantial part of the delay should be placed at the door of appellant, we think very little can be placed there. The time devoted to observation and examination of appellant's mental condition, not a great deal compared with the total, was due to the operation of the system rather than to any "fault" of appellant. So too the period consumed by the interlocutory appeal. ¹³ Indeed, we find no evidence of intentional delays on the part of either the prosecution or the appellant. Yet we think that upon consideration in more detail of the relevant factors the United States failed to meet its obligation to encompass all the proceedings within a pretrial span of substantially shorter duration than four years.

IV

The four principal factors to be balanced, as enumerated in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), are (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. We note preliminarily, however, that these four factors are to be considered in light of certain general principles:

A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent...