U.S. v. Calloway

• Decision Date: 30 August 1974
• Docket Number: No. 73-1139,73-1139
• Parties: UNITED STATES of America v. William H. CALLOWAY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 311

505 F.2d 311

164 U.S.App.D.C. 204

UNITED STATES of America v. William H. CALLOWAY, Appellant.

No. 73-1139.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 21, 1974.

Decided June 19, 1974, Rehearing Denied Aug. 30, 1974.

James R. Loftis, III, Washington, D.C. (appointed by this Court), for appellant.

Douglas M. Jackson, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., at the time the brief was filed, John A. Terry, Asst. U.S. Atty., and Broughton M. Earnest, Asst. U.S. Atty., at the time the brief was filed, were on the brief for appellee. Earl J. Silbert, U.S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, McGOWAN, Circuit Judge, and CHRISTENSEN, ^* Senior District Judge for the District of Utah.

BAZELON, Chief Judge:

Appellant, who was seventeen years old at the time of the alleged offenses, was tried and convicted as an adult, and received concurrent ten year sentences under the Federal Youth Corrections Act. ¹ On appeal he claims that he was denied a speedy trial by the fifteen month delay between arrest and trial, during which time he was incarcerated in the D.C. Jail. In a judgment entered February 26, 1974, 492 F.2d 669, this court reversed appellant's convictions and ordered dismissal of the indictment 'for lack of a speedy trial.' We announced that this opinion would follow.

I

Appellant was arrested on July 15, 1971. According to the police he confessed to participating in a robbery-burglary, but denied participation in any rape. Nonetheless, he was charged solely with rape. On the basis of this charge, appellant, pursuant to a recent amendment to the D.C.Code, ² was treated as an 'adult' despite his age of seventeen years. Because he was unable to post a $10,000 bond, he was confined in the D.C. Jail.

On November 2, 1971, four months after his arrest and confinement, appellant and three co-defendants were charged in a superseding indictment with robbery, burglary, rape and assault with a deadly weapon. Shortly thereafter, counsel were appointed, and bail was reset at $5,000 despite a recommendation by the D.C. Bail Agency that appellant be released to the custody of his mother.

On November 26, 1971, appellant filed motions to suppress his confession on the ground that it was coerced by promises and threats, and to dismiss his indictment on the ground that the statute classifying him as an 'adult' was a denial of due process. No action was taken on the motion to suppress for more than seven months. The motion to dismiss the indictment was denied without hearing one week after it was filed.

At a status hearing on January 17, 1972, trial was set for April 17. Appellant filed a motion for release on personal recognizance on February 9, but this motion was not acted upon. On March 29, 1972, appellant's court appointed counsel moved to withdraw from the case on the ground that they were 'unable to achieve any significant degree of communication with the defendant.' The court denied this motion without stating reasons. Counsel also moved on March 29 for a mental examination of Calloway alleging only that 'it has come to (our) attention that the physical and mental well-being of our client very well might be in question at this time.' (The record discloses that after conviction, at a hearing on bond pending appeal, appellate counsel, who was not trial counsel, advised the court that he had been informed by trial counsel that the March 29 motion for a mental examination 'was necessitated by the fact that the defendant got ahold of some drugs while he was incarcerated (at the D.C. Jail) and in fact had a seizure and I believe there was a bench conference, not reflected in the transcript, during which this was brought to the court's attention.' In addition, after oral argument in this court, counsel lodged a contemporaneous memorandum of trial counsel, concerning the March 29th motion for a mental examination, which reads in pertinent part:

(Trial counsel) were told that Calloway had had a seizure, involving tightening of his mouth muscles, throat, tongue and knees. The Marshal told us that defendant claimed to have taken 10 benzadrine capsules yesterday . . . Defendant refused to see both of us . . .. When a nurse passed, I asked her whether or not defendant was faking. She said that he was not. That she actually saw the spasm and this was the 3rd such case she had seen this week involving benzadrine at D.C. Jail.

The court granted appellant's motion and ordered that the examination be conducted by the Office of Forensic Psychiatry rather than Saint Elizabeths Hospital for the express purpose of expediting the report and insuring its completion before 'the trial date which is set for April 17, 1972.'

On April 17 two of Calloway's co-defendants pled guilty, and the U.S. Attorney indicated that the charges against the third co-defendant would be dropped upon imposition of a sentence in another case. The court then stated that, despite its order requiring appellant's psychiatric report to filed by that date, the report had not yet been filed. Trial was reset for June 12, 1972.

The report of the Office of Forensic Psychiatry is dated June 1, 1972, but so far as we can determine it was never made a part of the record below, nor is it noted on the district court's docket sheet. We obtained a copy of the report from the Office of Forensic Psychiatry. In its entirety, it reads:

In response to your Order, this 20 year old inmate was examined at the District of Columbia Jail on April 11, 1972, with a follow-up exam on May 2, 1972.

He was found on psychiatric evaluation to be competent to understand the proceedings against him and to assist counsel in his own defense. Furthermore, he was found to have no major mental illness which would have substantially impaired his mental processes or behavioral controls; nor did any such illness seem to exist during the period of the alleged offenses. ³

On June 12, the date set for trial, defense counsel advised the court that the psychiatric report, dated June 1, 'has not yet been prepared.' The U.S. Attorney stated that his office had not contacted the Office of Forensic Psychiatry with respect to Calloway's examination. The court asserted that it would 'get on Forensic Psychiatry myself today and we will get something in here by the end of the week.' The U.S. Attorney then suggested that a hearing be set on appellant's motion to suppress, which had been filed seven and one half months earlier, and stated that if Calloway prevailed the government 'might not be able to go forward,' and if he lost, appellant might enter a plea.

The suppression hearing commenced on June 23; it was continued so that the government could call a rebuttal witness, then continued again for an unstated reason until July 7, 1972, at which time the motion to suppress was denied. Trial was then set for July 27, 1972.

On July 24, the government requested a continuance because one of the prosecutors assigned to the trial might be trying another case, and because several government witnesses were in New York, and therefore would be unavailable on July 27. The defense objected to the continuance since 'this man has been locked up since July 15 of last year.' The court responded 'Also for something other besides this, as I recall.' Counsel corrected the court, stating that appellant was confined solely because of the present charges, and asked the court to reconsider appellant's motion for release. Although the court informed counsel that it would grant the motion if the juvenile authorities would assume custody of Calloway, it later changed its mind because:

I didn't realize this rape was in here. We may have to do some rethinking about the bond . . .. You had better make a written motion.

The court then granted the government's motion for a continuance, and trial was set for October 18, 1972. No written motion for release was subsequently filed, apparently because the juvenile authorities refused custody of Calloway because of his adult charges.

On October 10, 1972, appellant's counsel filed a motion for dismissal of his indictment for lack of a speedy trial, claiming that he was prejudiced both by his continuous incarceration, and in the preparation of his defense since he 'has had difficulty in relating to counsel an exact description of where he was at the time and on the date the alleged offense occurred.' This motion was denied after hearing on October 13, 1972. On October 17, the trial date, ⁴ appellant filed a pro se motion to dismiss for want of a speedy trial, which was also denied.

At trial the government showed that a brutal robbery-burglary-rape had taken place, although none of the victims could identify any assailant. The evidence against appellant consisted of his fingerprint at the scene of the crime, his confession, and the reluctant ⁵ testimony of a co-defendant, who had pled guilty, that Calloway was with him when he committed the robbery, but that he, the co-defendant, 'didn't see no rape.' At the close of the government's case, the court granted a defense motion for judgment of acquittal on the rape counts.

Appellant testified that he could not remember where he was on the specific night in question, but said he was probably at his brother's house since he usually spent his evenings there. He stated that the fingerprint at the scene of the crime was not his, and that his signed confession was secured by threats.

Upon conviction Calloway was returned to the D.C. Jail where he remained until January 5, 1973, when at the request of the government he was committed to the Medical Facility at Springfield, Missouri, for evaluation under the Youth Corrections Act. On the basis of the Springfield report, he was given a youth sentence despite government allocution for an adult sentence. Finally, on June 6, 1973-- seven and a half months after his conviction, and almost two years after his...