U.S. v. Mills, s. 90-3007

Decision Date29 May 1992
Docket NumberNos. 90-3007,90-3008,s. 90-3007
PartiesUNITED STATES of America, Appellant, v. Albert E. MILLS. UNITED STATES of America, Appellant, v. Kenneth B. WONSON.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (Criminal Nos. 89-00342-02 and 89-00319-01).

Robert H. Tiller (appointed by the Court), with whom Alan P. Bayles, Washington, D.C., (appointed by the Court) was on the brief, for defendants. Richard G. Taranto, Washington, D.C., also entered an appearance for defendant Kenneth B. Wonson in No. 90-3008.

David A. Reiser, with whom Rosemary Herbert and James W. Klein, Public Defender Service, and Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., for American Civil Liberties Union, were on the joint brief, for amici curiae urging that the judgments of the District Court be affirmed.

John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Thomas E. Zeno, Patrice I. Kopistansky and James A. Meade, Asst. U.S. Attys., Washington, D.C., were on the brief, for the U.S. Thomas J. Tourish, Jr., Washington, D.C., also entered an appearance for the U.S.


Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge SENTELLE, in which Chief Judge



We held in United States v. Robertson, 810 F.2d 254 (D.C.Cir.1987), that an arrest followed by the filing of charges under District of Columbia law does not constitute an "arrest" triggering the Speedy Trial Act's requirement that a federal indictment be filed within 30 days from the defendant's arrest "in connection with" the charge in the indictment. See 18 U.S.C. § 3161(b) (1988). After a panel applied Robertson to the present case, United States v. Mills, 925 F.2d 455, 460 (D.C.Cir.1991), we granted rehearing en banc in order to consider whether Robertson should be overruled or modified. We adhere to Robertson but somewhat modify our statutory analysis.

* * *

Appellees Albert Mills and Kenneth Wonson were arrested in September 1988 and April 1989, respectively. 1 They were charged with possession with intent to distribute cocaine in violation of the D.C.Code and other related D.C. offenses and were indicted in the D.C. Superior Court. While their cases were pending, the Bush Administration announced a new policy for fighting drugs in the District of Columbia; the policy called for prosecution of more drug cases in federal district court (rather than Superior Court) to take advantage of the tougher federal sentences. Accordingly, the U.S. Attorney's Office reviewed pending Superior Court felony drug cases for possible transfer to federal court. The U.S. Attorney selected appellees' cases for transfer and secured their indictment in federal court--far more than 30 days after the D.C. arrests (seven months in Mills's case, a year in Wonson's). The district court dismissed the indictments on various grounds, including Speedy Trial Act violations. It treated the defendants' initial arrests in connection with the D.C. charges as "arrest[s]" within the meaning of 18 U.S.C. § 3161(b), and thus found a violation of the 30-day requirement. See United States v. Roberts, 726 F.Supp. 1359, 1371-72 (D.D.C.1989). 2

On appeal by the government, the panel reversed on the basis of our decision in Robertson. It of course refused to overturn Robertson, and it also rejected appellees' suggestion that Robertson be limited to the special situation that prevailed there--a D.C. charge (murder) for which the defendant could not have been indicted in federal court. Mills, 925 F.2d at 461. And it rejected appellees' argument that these transfers, unlike the one in Robertson, involved wrongful prosecutorial "manipulation", noting that it found "absolutely nothing in the record to support this charge." Id. at 460-61. 3

* * *

The Speedy Trial Act provision at issue here provides:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

18 U.S.C. § 3161(b) (emphasis added). The Act defines "offense" as "any Federal criminal offense". 18 U.S.C. § 3172.

Thus the trigger mechanism is the arrest or service of summons "in connection with such charges." The sole possible referent for "such charges" is the "offense" charged in the indictment, which because of the definition must be a federal offense. Under the most natural reading, then, an arrest starts the clock only if it is "in connection with" federal charges. If, as was the case here, the arrest was accompanied by a complaint charging violations of the D.C. (not U.S.) Code, it was not "in connection with" federal charges. 4

The remedial provision of the Speedy Trial Act also suggests that the Act is triggered only by arrests that are accompanied by the filing of a federal complaint against the defendant. That provision states:

If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) ..., such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.

18 U.S.C. § 3162(a)(1) (emphasis added). As § 3162(a)(1) does not apply where an arrest has occurred but no charges have been filed, the term "arrest" in § 3161(b) " 'must be construed as an arrest where the person is charged with an offense.' " United States v. Solomon, 679 F.2d 1246, 1252 (8th Cir.1982) (quoting United States v. Jones, 676 F.2d 327, 331 (8th Cir.1982)). There appears to be undisputed support among the circuits for this reading of the interplay between §§ 3161(b) and 3162(a)(1). See, e.g., United States v. Summers, 894 F.2d 90, 91 (4th Cir.1990); United States v. Bloom, 865 F.2d 485, 489-90 (2d Cir.1989); United States v. Lee, 818 F.2d 302, 305 (4th Cir.1987); United States v. Alfarano, 706 F.2d 739, 741 (6th Cir.1983); United States v. Candelaria, 704 F.2d 1129, 1131-32 (9th Cir.1983); United States v. Varella, 692 F.2d 1352, 1357-58 (11th Cir.1982). 5 Again, of course, "offense" means "any Federal criminal offense" under § 3172. Thus, if a District of Columbia arrest were understood to start the clock there would be no remedy without a wrench of the statutory language.

Appellees understandably do not directly attack the proposition that an arrest can trigger § 3161(b) only if accompanied by a formal charge. But they insist that a District of Columbia charge is enough. This of course disregards § 3172's definition of "offense" as a "Federal criminal offense" and the fact that "such charges" in § 3161(b) must refer back to the type of offense--federal--charged in the information or indictment. It is also inconsistent with the undisputed rule that a state arrest does not trigger the Speedy Trial Act's clock, even if the arrest is for conduct that is the basis of a subsequent indictment for a federal offense. See, e.g., United States v. Charles, 883 F.2d 355, 356 (5th Cir.1989); United States v. Janik, 723 F.2d 537, 542 (7th Cir.1983); United States v. Carlson, 697 F.2d 231, 235 (8th Cir.1983); United States v. Adams, 694 F.2d 200, 202 (9th Cir.1982); United States v. Iaquinta, 674 F.2d 260, 264 (4th Cir.1982); United States v. Mejias, 552 F.2d 435, 441 (2d Cir.1977).

Appellees and amici attempt to distinguish the state arrest rule on the ground that it is based upon notions of federalism and "dual sovereignty". The argument has two components: one conceptual (the identity of sovereigns), and the other functional (the identity of prosecutors, namely the United States Attorney for the District of Columbia). Mejias, the first case addressing a state arrest ultimately followed by a federal indictment, indeed relied in part on the state's separate sovereignty. 552 F.2d at 441. But the Mejias court's reliance on separate sovereignty is questionable; under the Sixth Amendment, courts have often treated state arrests as triggering the Amendment for purposes of a later federal charge for the same conduct. See Dissent at 83. In fact, the Second Circuit also invoked a practical consideration that applies as much to the District as to states--the likelihood of immediate protective federal indictments, clogging the federal courts in contravention of the Act's purpose. See 552 F.2d at 442. Moreover, as we have seen, at pp. 67-68 above, the most direct explanation of the state arrest rule is congressional intent, as manifested in the terms of the Act.

The dissent takes the sovereignty concept still further, arguing that the statutory term "Federal criminal offense" encompasses any D.C. offense that parallels a federal one. See Dissent at 74-75. If Congress had been writing the Speedy Trial Act on a clean slate, such a construction might be plausible. But Congress's allocation of jurisdiction between the D.C. Superior court and the U.S. district court--adopted just four years before the Speedy Trial Act--uses a vocabulary in which "Federal offense" is plainly limited to offenses against federal laws in the narrower sense of ones applicable nationwide. In the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473, Congress gave the U.S. district court for the District of Columbia jurisdiction over "[a]ny offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or...

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