U.S. v. Johnson

• Citation: 579 F.2d 122
• Decision Date: 28 July 1978
• Docket Number: No. 78-1004,78-1004
• Parties: UNITED STATES of America, Appellee, v. Clarke Dana JOHNSON, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 122

579 F.2d 122

UNITED STATES of America, Appellee, v. Clarke Dana JOHNSON, Defendant, Appellant.

No. 78-1004.

United States Court of Appeals, First Circuit.

Submitted June 9, 1978.

Decided July 28, 1978.

John P. Ward, Cambridge, Mass., by appointment of the Court, on brief for defendant, appellant.

Edward F. Harrington, U. S. Atty., and Charles E. Chase, Asst. U. S. Atty., Boston, Mass., on brief for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Appellant's constitutional and statutory rights to a speedy trial are the subject of this appeal. On March 10, 1977, appellant was indicted for jumping bail (18 U.S.C. § 3150). Fifteen days later he was arraigned. The case was first called for trial on June 20, 1977, at which time the court was informed that appellant had recently been sent by another court to a medical center in Missouri. As a result of appellant's hospitalization, the present case was removed from the June list. The case was next called on October 18, 1977, when the trial was scheduled for the week of November 14. On November 1, appellant moved for dismissal of the indictment on the ground that the eight month delay between his arraignment and the scheduled trial date deprived him of his Sixth Amendment right to a speedy trial. After a hearing, the district court denied the motion. At his trial, which took place on November 15, appellant waived his right to a jury, submitted a stipulated agreement of facts, was found guilty, and was sentenced to one year to be served concurrently with the five year sentence which appellant had recently received in another case (United States v. Johnson, 565 F.2d 179 (1st Cir. 1977)).

The Supreme Court has stated that to determine whether a defendant's constitutional right to a speedy trial has been violated a balancing test should be applied in which the conduct of the prosecution and the defendant are both to be weighed. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Factors to be considered are the length of and reasons for the delay, the nature of defendant's assertions of his right to a speedy trial, and the prejudice caused to defendant as a result of the delay. Id.

"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into other factors that go into the balance." Id. Appellee concedes that, given the simple nature of the charge against appellant, the eight month delay between arraignment and trial warrants a further inquiry into appellant's claim. Id. at 530-31, 92 S.Ct. 2182; United States v. Simmons, 536 F.2d 827, 831 (9th Cir.), Cert. denied, 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130 (1976).

"( D)ifferent weights should be assigned to different reasons (for the delay)." Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192. Delay deliberately caused by the prosecution to hamper a defense is to be weighed heavily against the government. More neutral reasons for delay, such as overcrowded courts or the prosecution's negligence in not bringing the case to trial, are to be counted against the government, since the ultimate responsibility for such circumstances rests there, but weighed less heavily. Delays serving legitimate purposes such as the location of a missing witness, are not to be held against the government. Id.; United States v. Butler, 426 F.2d 1275, 1277 (1st Cir.), Cert. denied, 401 U.S. 978, 91 S.Ct. 1207, 28 L.Ed.2d 328 (1970).

The delay in the present case is due to excusable and neutral causes. The removal of the case from the June list because of appellant's hospitalization constitutes delay serving a legitimate purpose and therefore will not be held against the government. This accounts for about two months of the eight month period. The balance of the delay was not intentionally perpetrated by the government for improper motives. Yet there is no evidence in the record that this delay was caused by appellant or occasioned to serve some legitimate purpose either. ¹ Consequently, this portion of the eight month period shall be attributed to "neutral" reasons, which weigh against the government but not heavily. See United States v. Cabral, 475 F.2d 715, 718 (1st Cir. 1973).

The responsibility of a defendant to assert his Sixth Amendment right is important to consider because it indicates whether prejudice, "which is not always readily identifiable", was actually caused to the defendant by the delay. Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192. A nonassertion of this right prior to trial indicates that the defendant may in fact have believed that the delay was to his benefit, in which case he should not be heard to complain at a later date that his right to a speedy trial has been violated. Id. at 521, 528-29, 531-32, 92 S.Ct. 2182. Determining in whose favor this factor is to be considered is difficult in the present case, because there is a dispute as to whether appellant did assert his rights prior to the filing of his motion to dismiss in November, shortly before his trial. Appellant contends that he sent letters to the prosecutor and court in March and June respectively requesting a speedy trial. The alleged recipients, however, neither remember nor have records of receiving the letters. Assuming the letters were sent, it is curious that appellant did not reassert his alleged desire for a speedy trial when he learned he was going to be transferred to a federal penitentiary in Texas in mid-September. The record does not disclose when appellant learned of his impending transfer, but in the absence of evidence to the contrary, we think it is fair to assume that either appellant or his counsel was given some advance warning. His failure to assert his right at that time suggests a lack of interest in a speedy disposition of this case. On the other hand, it is not obvious that appellant had anything to gain by the delay. Thus, we find that, when reviewed in the context of the present record, appellant's alleged assertions of his right in March and June do not weigh heavily in either party's favor.

Whether a defendant has been prejudiced by the delay is to be assessed in light of the interests which the Sixth Amendment right to a speedy trial was designed to protect: the defendant's interests against oppressive pre-trial incarceration, anxiety over the unresolved outcome of his case, and impairment of his defense. Id. at 532, 92 S.Ct. 2182. Appellant was incarcerated prior to his trial in this case solely because of charges and sentences pending against him in other cases. He was granted bail in the present case. If he suffered from his incarceration, then, it was not due to the delay between arraignment and trial for the bail jumping charge.

...