U.S. v. Rosenbloom
| Decision Date | 01 April 1975 |
| Docket Number | No. 73--2231,73--2231 |
| Citation | 511 F.2d 777,167 U.S.App.D.C. 211 |
| Parties | UNITED STATES of America, v. Maurice H. ROSENBLOOM, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jacob Sheeskin, Rockville, Md., with whom Harry M. Stern was on the brief, for appellant.
James N. Owens, Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Jason D. Kogan, Asst. U.S. Attys., were on the brief, for appellee.
Before FAHY, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and DAVIS, * Judge, United States Court of Claims.
The claim of speedy trial denied has been given careful consideration, especially in view of the long time involved. But the case calls for a balancing of factors as appears from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We are of the view that no significant delay was attributable to negligence or fault on the part of the prosecution, that most of the delay was attributable to the Government's successful interlocutory appeal of a motion to suppress evidence; that there was neither detention nor release on bail, but rather on recognizance; that the defendant's irrational actions contributed materially to the delay in setting of a trial date; that there was no prejudice to the conduct of the defense; and that after the motion to suppress was resolved by an authoritative ruling of this court, there was a further delay of only 4--5 months prior to the date set by the judge, with the consent of counsel, for the trial. We do not believe that the possible stress on appellant attributable to the pendency of the charges involved in this case weighs heavily enough to swing the balance of factors toward a dismissal of the indictment for denial of speedy trial.
Affirmed. **
The appeal is from convictions of two counts of assault with a dangerous weapon (22 D.C.Code § 502), one count of assault on a police officer with a dangerous weapon (22 D.C.Code § 505) and one count of assault on a federal officer (18 U.S.C. § 111). All the charges grew out of one incident, the resistance by appellant to the service upon him by a United States deputy marshal of an order of the Superior Court of the District of Columbia. The order directed appellant to restore a tenant to possession of an apartment in a building owned by appellant, and also enjoined him from evicting the tenant. Eviction had already been accomplished by appellant, however, several hours before the deputy marshal arrived.
I need not go into the full details of appellant's resistance but note now that his testimony concerning the incident and his bizarre behavior on several occasions prior to trial raise serious questions about his emotional stability, a factor the importance of which shall be developed.
Notwithstanding the convictions have substantial factual support I would order dismissal of the indictments on the ground that appellant was denied his right to a speedy trial. 1
Thirty-five months elapsed between arrest, on August 24, 1970, and trial, on July 23, 1973. 2 The trial, accordingly, was not speedy within the ordinary meaning of the language of the Constitution, and that meaning I think must be controlling absent reasons which the law can accept as justifying a different result. The District Court's own Rules contain the following pertinent provisions:
All indictments returned shall be tried within 180 days from return of indictment if the defendant is on bond . . .. The United States or the defendant may, for good cause shown, petition the judge to whom the case is assigned to extend the time period applicable to the particular case. In exceptional cases the court may, sua sponte, order an extension. (Rule 2--7(d) (1).)
None of these provisions was complied with. The indictment was returned October 9, 1970, and, as stated, the trial did not occur for nearly three years. The contrast between this Rule, which, even if dormant, at least sets a goal to be sought, and the course of this case, is striking.
In Barker v. Wingo, 407 U.S. 514, 530--532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court outlined the approach on a case by case basis for determining whether delay violates the constitutional right. 3 The Court held that the most important factors to be balanced 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. These factors were to be considered upon the background of certain over-all principles applicable to the speedy trial problem. Thus,
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 with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest . . .. (T)he rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. (Footnotes omitted.)
Id. at 527 and 529, 92 S.Ct. at 2191.
The responsibility of the Government for expediting trials of accused was emphasized by this court 4 in Hedgepeth v. United States, 124 U.S.App.D.C. 291, 364 F.2d 684, 687--688 (1966):
. . . (T)he longer the time between arrest and trial, the heavier the burden of the Government in arguing that the right to a speedy trial has not been abridged.
The passing of . . . a considerable length of time, no matter who is 'at fault,' should act as a spur to the Government to seek prompt trial.
Upon this background, and having in mind the four important factors pointed to in Barker v. Wingo, supra, later to be related more particularly to the facts of this case, I review the course of the proceedings following the arrest on August 24, 1970.
On November 6, 1970, appellant moved to suppress evidence. The motion was not acted upon until thirteen months later, December 1, 1971, when it was granted. This led to an interlocutory appeal by the United States, since the evidence was deemed essential to the prosecution. I shall return to the course of the interlocutory appeal. During the thirteen months while the motion to suppress was pending, at the court's suggestion based on appellant's behavior at a status hearing November 9, 1970, 5 he was committed to St. Elizabeths Hospital for 60 days' observation of his mental condition. 6
He was adjudged competent to stand trial on January 22, 1971, and trial was set for March 31, 1971. The Government then moved again for another mental examination, but this motion was abandoned on the 22nd of March, 1971, because of opposition by defense counsel, and trial was reset for June 24, 1971. The case then appears to have been neglected by the prosecution and the court until October 21, 1971. 7 Appellant was prepared for and requested trial that day. The trial date, however, was again postponed to December 1, 1971. On October 27, 1971, the court sua sponte ordered another mental examination, resulting in the doctor's report of November 15, 1971, that appellant was able to assist counsel in his defense.
On November 18, 1971, appellant moved for dismissal for lack of a speedy trial. This was fifteen months after arrest. The motion was denied April 17, 1972, five months after filing.
I return now to the granting, on December 1, 1971, of appellant's motion to suppress evidence, which led to an interlocutory appeal by the Government. The notice of appeal was marked filed on the 31st day after the date of the suppression order. If that date of filing was correct it was too late. Appellant moved in the District Court for dismissal of the appeal. Upon denial of the motion he moved for dismissal in this court. The problem was finally disposed of by this court June 26, 1972, when we held the notice had been filed within 30 days instead of 31 days, though marked filed on the 31st day. Our decision relied, inter alia, upon an affidavit filed by the Government to the effect the notice was actually lodged with the clerk on the 30th day. Five and a half months were thus consumed because of the delay in filing and the error in marking the filing date.
The merits of the suppression order were ready to be brought on for decision by this court June 26, 1972. A total of about 64 days extensions of time, of which the Government was responsible for more than half, were allowed for briefing, which was completed October 5, 1972. 8 Yet this interlocutory appeal, during the pendency of which a trial waited, was not reached for argument in this court until March 13, 1973, 16 months after the appeal was noted and 31 months, lacking 11 days, after appellant's arrest.
I interrupt the course of the proceedings now to point out that this court has since taken steps to avoid such delay. On January 25, 1974, the court ordered that such interlocutory appeals shall be expedited. The order includes a provision that,
The Clerk shall schedule the case for argument promptly after the briefs are filed. 9
On March 28, 1973, fifteen months after the District Court's suppression order, and 31 months after appellant's arrest, this court reversed the suppression order, and on April 13, 1973, returned the record to the District Court, the mandate following April 25. Several months were consumed by what may be considered reasonable institutional requirements, and the case was tried July 23, 1973, thirty-five months after arrest.
On May 30, 1973, when the July 23rd date was agreed upon, counsel for the accused, in response to the court's inquiry as to how long the case had been around, stated, 'A long time, Your Honor--and I think the main point that Your Honor hasn't ruled on is the motion to dismiss on the ground that Mr. Rosenbloom hasn't had a...
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Reed v. United States, 10914.
...States, D.C. App., 291 A.2d 190 (1972); United States v. Sarvis, 173 U.S.App.D.C. 228, 523 F.2d 1177 (1975); United States v. Rosenbloom, 167 U.S.App.D.C. 211, 511 F.2d 777 (1974); United States v. Jones, 154 U.S.App.D.C. 211, 475 F.2d 322 (1972). Thus, time lapse alone is only a touchstone......