Givens v. United States, 644 A.2d 1373

Givens v. United States

644 A.2d 1373

D.C.

1994

Check Treatment

*1 Therefore, if we were to look to subse- even interpre-

quent with the enactments assist law, applicable and we find no

tation of the of the

reason to do so this case because statute,

clarity subsequent legisla- Hoytes’ position. support

tion does not

III.

Accordingly, the order of the trial court

granting partial summary judgment is re-

versed, and the case remanded for the trial judgment, including

court vacate that attorney’s Hoytes, and

award of fees to the proceedings

for further consistent with this

opinion. GIVENS, Appellant,

Lawrence E. STATES, Appellee.

UNITED DC, Ortins, ap- Bradley Washington, J. Larry BRYANT, Appellant, court, appellant pointed by this for Givens. Williams, DC, Washington, appoint- Ian A. STATES, Appellee. UNITED court, Bryant. by appellant for ed No. 92-CF-777. Walicki-Chan, Atty., Cynthia Asst. U.S. D. Holder, Jr., Atty., Eric H. with whom Appeals. District of Columbia Court Fisher, Black, and R. Thomas C. and John Wu, Attys., Washington, Asst. Shanlon Argued Feb. brief, DC, appellee. July Decided FARRELL, TERRY and Associate Before MACK, Judge. Judges, and Senior PER CURIAM: appeal from their convictions In this (D.C.Code § 33- for distribution heroin 541(a)(1) (1993)), primary conten appellants’ they calculate at tion is their indictment twenty-four months between trial, trial court deter- but which the ** $5,000 attorney C was a letter from be secured a deed Attachment [] excess of purpose suggesting an amendment for the upon property and shall be of trust residential clarification. Committee exempt usury ceilings. Report, at 13. *2 1374 MacDonald, months, holding that reaffirmed violated their Court

mined to be fifteen speedy decision],” to a trial. Amendment no [that Sixth “under the rule of when opinion only to remove a publish this We outstanding and “defendants indictment decisions, uncertainty in de- lingering our subjected or to other not incarcerated are teaching, as to spite plain Supreme Court liberty, a restrictions on their substantial of time the dismissal whether between weigh court should not that time towards (or on liber- charges and indictment restraint Speedy under the Trial Clause.” Id. at claim Amendment ty) counts for of Sixth 312, at 654.2 106 S.Ct. speedy analysis. trial affirm. We States, 354 v. Robinson United States, 372 A.2d 998 In Branch v. United (D.C.1982), acknowledged Mac- this court (D.C.1977), rejected as “baseless” the we period between holding that “the Donald’s four and government’s contention that charge against a defen- of the first dismissal months between dismissal of one-half filing speedy of the second first indictment and the dant and indictment falls outside disregarded computing in should be clause,” rejected the and on that basis trial length delay at issue. Id. at 1000. of that Amendment claim Sixth defendant’s Branch, however, effectively overruled was analysis applied delay point by States v. United on charges against voluntary dismissal of ment’s 456 U.S. 102 S.Ct. him indictment more than four and his (1982), that Court held try distin- Appellants Id. at 357.3 later. dismissed, speedy are “[o]nce guish above-cited cases—Robin- each of the guarantee longer applicable.” is no Id. son, Hawk, factually, Loud and MacDonald — (footnote omitted).1 102 at 1502 more fruitless. but the effort is Somewhat that The reason is Wynn v. troubling is the fact that United guarantee designed speedy trial [t]he (D.C.1988), this court 538 A.2d 1139 possibility lengthy of incar- minimize the directly government’s not did embrace trial, lesser, prior to to reduce the ceration post- it not count a short argument substantial, impairment of but nevertheless period during which the defendant dismissal liberty imposed accused re- on an while “subject charged to the restraints not bail, disrup- shorten the leased on and to object right to a liberty that are the pres- of life caused arrest and the tion trial”; the court stated that it instead charges. criminal ence of unresolved “a circum- consider that hiatus as would engaged these concerns are not Id. Because in the context stance which will be balanced dismissed, delay any charges have been Id. at 1142 n. 7. of all the circumstances.” time, any delay before “like suggest new Appellants this breathed filed, under charges are must be scrutinized post-dismissal of life into consideration Clause, Speedy not the Trial the Due Process affecting part the total “circumstances” as of (footnote omitted). 7 Clause.” Id. at But, course, analysis. of Sixth Amendment Lovasco, v. also United States holding in previous Wynn could not alter our 2047-48, 788-89, 52 L.Ed.2d Robinson, (1977) Clause, Ryan, 285 A.2d 310 see M.A.P. (holding that Due Process Clause, (D.C.1971), period governs it revitalize a not Trial nor could delay). pre-indictment Supreme Court has made which the Speedy Trial implicate Clause Hawk, clear does not v. Loud In United States into (1986), Appellants read far too much concerns. L.Ed.2d 640 they Appellants were ever un- super- do not contend did not 1.To the extent that MacDonald during peri- course, on conditional release it, Branch, der arrest or good law remains sede was in effect. when no indictment ods early represents this court’s as it one of insofar Wingo, explications of Barker cfi,” but did cited Branch with a “but 3. Robinson multi- and the 33 L.Ed.2d suggest any that would allow the not distinction assessing de- test for Sixth Amendment factored holding Mac- earlier decision to survive lay. Donald. correctly the fifteen- ambiguous integral judge concluded that footnote holding.4 to the court’s did not violate month at issue here right. appellants’ Amendment We Sixth Bryant argues Finally, appellant that the Moreover, addressing an hold that she did. speedy trial Court’s most recent — in the trial argument appellants did not raise decision, Doggett v. *3 (1992), court, reject full twen- -, the claim that the 120 L.Ed.2d 520 we S.Ct. teaching indict- question ty-four original calls into the of Mac- the months between Hawk. As the Court in Donald and Loud trial their Due Process ment and violated Doggett repeatedly cited cases without both Fifth Amendment. United right under the however, hinting disapproval, argu- this at Lovasco, supra; Robinson v. Unit- States v. implausible Doggett at outset. ment is the (D.C.1984).5 States, ed involved a situation where an indictment had Affirmed. against been returned the defendant and left outstanding eight and a half before MACK, Judge, dissenting: Senior Id., brought he was arrested and — to trial. at-, at 2690. The (or rejecting) appel- Putting rather aside whether, primary issue before the Court was argument that successive reindictments lants’ extraordinary delay, the view of this de- process, my raised an issue of due have “precisely had to how he was fendant show today broadly “bright a colleagues announce prejudiced by his indict- the between guarantee the of a Sixth line” rule —Id., at-, ment and trial.” right speedy a trial does not Amendment to Thus, at 2692. the Court had no occa- encompass the dis- periods time between sion to as to the revisit MacDonald’s subsequent of an indictment and a missal significance delay during vel non of a time In charge. the same indictment on charges pending no indictment or are of our court in Branch v. decision imposed and no restrictions have been States, (D.C.1977), has 372 A.2d 998 Nevertheless, person’s liberty. the Court re- effectively by the rationale of been overruled teaching affirmed the of MacDonald and Supreme Court United the United States Loud Hawk “that the Amendment Sixth States v. speedy of the accused to a trial has no my colleagues 71 L.Ed.2d 696 application beyond the confines of a formal necessary to recite facts. do not find it arrest, prosecution triggered by criminal ... indictment, or official accusation....” other majority’s I the allure of the understand Id. ease, analysis in to state no-nonsense this but obvious, application longevity the and/or

It remains for us to consider whether, any legal principle cannot be divorced analysis under the multi-factored Wingo, supra entirely point, facts.1 At some succes- Barker v. note the trial unavailability police officer witness who of a 4. The court noted that whether or not the two- counted, period speedy away vacation at the time of month issue were "the on a scheduled prima Wynn, [here] trial claim has facie merit.” the same second indictment on trial. The brought charges, 538 A.2d at 1142 n. 7. three months which was about indictment, was also dismissal of the first Finally, reject appellant we Givens’ claim on prejudice without due to dismissed grounds the trial court "adulteration” unwillingness bring to an undercover offi- ment’s admitting a abused its discretion in into evidence Nearly eight testify to at trial. cer to the surface police videotape depicting out- Givens’ actions later, appellants were indicted for third months building side the in which the heroin sale took charges and con- and were tried time on these See, place. e.g., German v. United victed. denied, (D.C.), cert. A.2d 596 view, Supreme Court nor neither the (1987); Ford v. United presented with a factual court has been 396 A.2d 191 case. Ad- on all fours with this situation that is they mittedly, appellants claim that do not pertinent to 1. The facts of the case during dismiss- the months between incarcerated analysis, briefly majority’s them but I review Rather, case the in this al and reindictment. this case and to illustrate the distinction between prosecution government has initiated criminal upon by Court cases relied the indictment without and then twice dismissed majority. Appellants’ these first indictment on charges only the same prejudice to reindict on charges due to was dismissed without conclusion, today’s ref- reaching this solely convenience sive reindictments for the Robinson, supra note erences our decision prosecution must be found to offend delay, involving pre-indictment a ease speedy protections.3 process2 due support the con- Therefore, saying cited MacDonald go I on record as want dismissal of that the between easily identify and what clusion that I can describe charges actual indictment on those initial significant distinctions between believe to be pertinent was not ease presented facts in the consolidated easily (see dis- facing speedy trial claim. Robinson supra) and those before us note case.4 tinguished from the instant in the trial cases Court majority, supra note 1 Doggett, cited Today of our court conclude two members indictment and (eight-year holding in Mac- Supreme Court’s United, Hawk, prosecution); v. Loud States (1982) effectively our deci- overruled Donald *4 648, 88 L.Ed.2d 640 (1977). In in Branch Robinson sion (bulk (1986) of due to slow movement cited to Branch three members of our court good through government’s the courts of introductory signal In using “but the cf.”5 MacDonald, interlocutory appeal); and faith description following the parenthetical the (initial military charges supra dismissed court stated citation to Branch the Robinson prosecutor allegations that concluded delay be- “four and one-half month that a untrue; charges indictment on civilian were charge reindict- of and [a] tween dismissal investigation). Howev- brought after further charge counted for [that] ment er, writing separately not so my intent in dismissal speedy trial clause where questions much to voice a dissent as to raise investigative unrelated to need [was] orderly impact process and of notice Robinson, supra, 452 A.2d original charge.” unique juris- upon practice of law in this Contrary majority’s assertion at to the 357. diction. 2, description of Branch dis- at footnote this tinguishes it from the facts of MacDonald My join in the con- brethren who (initial prosecutor charges dismissed when that Court’s decision clude untrue, in- allegations that portion that of this concluded MacDonald overruled Branch, charges brought fur- after supra, in which we dictment on same court’s read to indi- investigation), and could be periods between dis- ther emphatically stated that apply Mac- charges that the court would on the same cate missal and reindictment a like Branch or the instant purposes. In Donald to case are counted for mind, protect one who indicates that it “continues to To a defendant several months later. might until the be considered to be within has been accused of crime in this situation attempts try prosecution.” completed him for of a formal criminal ment has its the "confines 15, States,-U.S.-,-, MacDonald, supra, Doggett 456 U.S. at v. that crime.” See J., (em- 2686, 2692, (1992); (Marshall, dissenting) at 102 S.Ct. 1505 112 find, 16-17, added). supra, phasis could not 456 U.S. at Justice Marshall see also J., (Marshall, dissenting). the clause itself or the at 1506-1507 in the text of 102 S.Ct. cases, support previous for the Mac- Court’s majority's the first that "after Donald does not note that the Due Process Clause I 2. made, dropping has been protection official accusation provide a defendant the same between, indictment, charges prior accusation to, to a second official delay prior wipes Id. at the slate clean.” provides Speedy Clause once formal Trial Marion, (citing 1506 United States lodged. prevail charges In order to have been (1971)). 468 30 L.Ed.2d alleging under on a claim unconstitutional Clause, the defendant must the Due Process prejudice Robinson, at trial. “The due able to show actual we held that a 54-month 4. limited, pro- process constraint is and does not charges, due to the dismissal of initial indict, against delay not for a tactical tect which is government's evidence to lack of sufficient legitimate prosecuto- reason but which serves no charges was not rele- on those and indictment MacDonald, supra, purpose." 456 U.S. at rial speedy trial claim. vant to of a (Marshall, dissenting); J. 102 S.Ct. at 1508 452 A.2d see Robinson v. United "bluebook,” According System A Uniform 5. ed.1991), (15th signal means Citation “[cjited supports proposition authority proposi- analogous contrary of the main agree 3. with the late Justice Marshall reading” Clause tion.” Trial “natural case, delays complained of are due where to dismissal indictments without STUCKEY, Appellant, H. John government. convenience of

for the Branch, Moreover, supra, 372 A.2d at 1001. Robinson,

in none of our cases decided since AHMAD, al., Appellees. M. Abraham et Branch, citing any has indica there been that Branch has In- tion been overruled. No. 92-CV-1431. deed, argued it could be that Branch was expressly followed v. United Appeals. District of Columbia Court (D.C.1988) (a six 538 A.2d case decided Robinson), indicating Argued March passed time that between the of an dismissal July Decided indictment and reindictment on the same a factor to in the “be balanced context of all the 538 A.2d circumstances.”

at 1142 n. 7.

My colleagues citing time-honored Ryan,

stricture of M.A.P. v. (footnote (D.C.1971) omitted),6 tell us *5 could not revive Branch after Ironically, in Robinson. it

colleagues who are faced with the same The

MAP. stricture. truth of the matter clearly

that this court has not its articulated regarding

policy the inclusion for passes

Trial Clause of time which of an

between dismissal indictment without for the convenience of the subsequent

ment and indictment on the charges. Attorneys practicing in this

jurisdiction cannot determine with assurance Branch has or over-

whether has not been part.7

ruled While the at-

instant case be in its belated

tempt to articulate the law in this state of the

area, questionable judges it is whether two judges speak authority

or three can to with past precedent.

contradict this court’s Ryan, supra;

M.A.P. v. Minick v. United 1116-17 Rockville, MD, for Wagman, Arthur M. respectfully suggest appro that it would be appellant. priate for this court convene en banc viability cases in consider of our own Rockville, MD, Himelfarb, R. with Stephen light pronouncements of the DC, Potkin, Washington, Lane H. whom Court. brief, appellees. TERRY, STEADMAN, and

Before SCHWELB, Judges. Associate Shepherd’s attorney referring division of this will overrule I note that "[N]o court Branch would of this and ... such in order to confirm the status of decision court ... only accomplished by en was limited can this court see no indication result changed Robinson. banc.”