Speight v. United States

3101, 3106, I would affirm her conviction.15 SPEIGHT, Jr., Appellant,

Freeman STATES, Appellee.

UNITED

No. 85-385. Appeals.

District of Columbia Court of

Argued En Banc Oct. 1988.

Decided Nov. 1989. Liebross, L. appointed by

Robert this court, appellant. Trosman, Atty.

Elizabeth Asst. U.S. diGenova, Joseph whom E. Atty. filed, the time the brief was and Michael Farrell, Atty., W. Asst. Washington, D.C., filed, at the time the brief was were brief, appellee. ROGERS, Judge,* Before Chief NEWMAN, FERREN, BELSON, TERRY, SCHWELB, STEADMAN and Judges, PRYOR,** Associate ** agree majority Judge Pryor 15. I with the that Mrs. Judge Kimes’ was Chief of this court at unpersuasive. other claims of error are argument. the time of He was commissioned as * Judge Rogers Judge Judge was an Associate of this a Senior on November argument. court at the time of Her status Judge changed to Chief on November (1989 Repl.), to 23-1328 MACK,*** ant to Judge, and Associate D.C.Code § Senior imprisonment of from term of an additional Judge, Retired. At the time of sentenc- years.2 five STEADMAN, Judge: Associate on Speight that he had been ing, admitted weapon dangerous for the pretrial release dealing of law District Columbia Under al- charge at the cocaine offense the time' detention, per- pretrial and a with release occurred, legedly but also stated committing crime of a while son convicted charge later been dangerous weapon had to an en- subject on release is jury. The trial court by grand dismissed a hanced sentence. D.C.Code § allegation, inquiry regarding made no this (1989 this en banc Repl.). The issue before Speight subsequently and sentenced process clause is court whether due prison, a term we years three to fifteen in a applying provision case forbids this only by allowable virtue shall assume to be simply the government shows where provision of applying of the enhancement pretrial release sta- fact of the defendant’s section 23-1328.3 that clause hold the due tus. We requires no more. this appeal panel In his a of court, arguments. Speight presented three I. them, of offender Two release Jr., Speight, was ar- Appellant Freeman by requires an indictment statute its terms 16, 1984, January felony for the on rested charge by jury, and original grand on the dangerous weapon carrying grand jury clause that the fifth amendment (the offense). presented He was on “first” indictment, rejected requires also an were granted pretrial charge and outright argu In third panel.4 his January on 1984.1 On the court Octo- ment, pro the due Speight contended that grand jury dismissed the ber additional prohibits cess clause allegations Speight government’s his, only an arrest in a case as where such subsequently not been indicted on that argument place. panel found this took charge. persuasive, reasoning Speight to be meantime, however, July In the on sentence, prison lengthened had received a 1984, Speight, pre- still on who was then maximum in excess of the case, dangerous weapon trial release convicted, for he has been offense of which offense, was arrested on a “second” had not government a status that distributing day. cocaine on that He was conduct. culpable related shown charge of the convicted cocaine distribution However, by prior deeming itself bound January on and the contrary, holdings this court hearing held on March 1985. (D.C. Ryan, M.A.P. v. 1971), Speight it v. United papers” filed “release affirmed. 1987). (December 9, States, alleging Speight had sold cocaine No. 85-385 panel vacated the deci felony release for the The en banc court while sion, pro due argument carrying dangerous weapon, offense of heard subject, he cess affirm. pursu- and that was therefore issue. We *** Judge Judge years, quite apart his D.C. from release status. Mack was an Associate of this 33-541(a)(2)(B), -548(a) (1988 argument. Repl.). at the time Her status court changed Code §§ Retired, Judge, to Associate on October 1, 1989. error on 3. There no claim harmless January preliminary hearing A was held ground have been im- the sentence could Speight dangerous alleges that the offender posed on the release without reliance charge illegal weapon product of an was the provisions. seizure, argument we note but of search course do not assess. reasoning adopt agree 4. We both the holding panel rejecting these and the Speight previously had been convicted 2. Since arguments, forth in and III two as set Parts II offense, drug subject repeat as a he was Appendix. panel opinion attached as an up to a sentence of to ten offender maximum

II. L.Ed.2d Daniel v. United (D.C.1979) 408 A.2d 1231 (per cu us, The Code section before D.C.Code riam). A statute will withstand constitu straightforward in its terms. analysis tional attack under rational basis pertinent part, provides: it “any if there is state of facts either known (a) Any person convicted of an offense reasonably could or which be assumed pretrial committed while [on release] support affords for it.” Bachman v. [that] subject following penalties shall to the be (D.C. applicable penal- in addition to other 1986) (quoting United States v. Carotene ties: Co., Products (1) imprisonment A term of not less 778, 784, (1938)). 5.Ct. 82 L.Ed. 1234 We year than one and not more than five undertake that examination. committing felony years if convicted of released; while so A. imprisonment A term of of not less part Section 1328 was enacted as of the ninety days than and not more than one Reform District of Columbia Court year committing if a misde- convicted of Procedure Act6 which not Criminal meanor while so released. courts, reorganized the District’s but also qualification imposed person No provisions reforming the criminal contained guilty of the first offense or that the D.C.Code, including sections of the the law procedures leading pretrial to the release regarding pretrial release and detention. imperfection. be free of constitutional It is pretrial enacting In the 1970 Act’s release pretrial triggers the fact of release that provisions, Congress made clear that it was provision. enhancement the other On responding “very sharp upturn” in hand, provision imposes no sanction serious crime which followed enactment of proven beyond until and unless it is a rea- Bail Reform Act of Pub.L. 89- person sonable doubt that the committed 465, implement- the local 80 Stat. pretrial the second offense re- while Act, Bail ing the District of Columbia Thus, lease. the enhanced is im- Act, 89-519, Agency Pub.L. 80 Stat. 327 such, posed not for the release status as H.R.Rep. (1966). Cong., 91st See No. committing rather for the second of- but (provi- id. at 87 2d Sess. 80 see also fense while on release. It is the commis- procedures sions to “reform ... local bail being pun- crime sion second that is devastating experience after ... under the ished. Act”); (“rise Bail Reform id. [street] crime in the District since enactment of the issue before us is whether Con The appalling”); Bail Act at 89 Reform ... id. gress operating in can enact a statute such (citing showing “significant statistics ef- the due a manner consistent with rates). fect” of release on crime Historically clause of the Constitution.5 sentencing courts have examined statutes infirmity perceived the Bail Re- test, although sen under a rational basis that, changing form Act the historic tencing by impinges definition on the liber money system, it made likelihood bail ty interest. Marshall v. United See flight the sole criterion release determi- 700, 702, States, 414 response, provi- nations. the 1970 Act’s (1974) (statutory distinc detention, sions on release as schemes will be part comprehensive tions made help of a scheme “to upheld they if have “some relevance to deter crime committed while on release is pending the classification purpose appeal,” trial or id. at autho- omitted); made”) (citations “danger McGinnis v. rized courts to consider community” deciding grant whether to Royster, imposing punish- is not 6. Pub.L. No. 84 Stat. 473 5. The fact of the first offense makes ment for commission inapposite appellant’s of attainder and bill arguments. eighth amendment committing during the providing are crimes at 87. Section dants ... release. Id. pretrial release,” Congress committed penalties period increased offenses of ... release, was thus intended as but fling” while on phenomenon, explain- “last noted the comprehensive legislative in a provision “many can ing that defendants [released] designed perpetrated to deter scheme crime misconduct, expected to accelerate their legislative individuals release.7 danger- becoming and more more reckless history explicit point: on this action planning their time for ous because Rep. taken certain Your committee also No.' reduced.” H.R. has been steps to long help deter overdue (1970).8 Cong., 2d Sess. 83 Increased 91st trial pending on release committed while for crimes committed on penalties modifying These ex- appeal. or include oth- provide deterrence to those who would problems jumping in isting proof bail motivat- “particularly would not be erwise prosecutions, providing adequate obey during period the ed to the law for violation of release condi- sanctions pretrial release.” Id. including of release tions revocation reality that to be considered is Another penal- appropriate, and stiff added where by the “any practice, in release ordered released. for crimes committed while ties a the defen- courts condition that include[s] the have heighten deterrent effect we To on commit crime while dant not another the proposed penalties added Rodriguez, release.” United States v. punishments jumping the bail should (2d Cir.1986), rev’d on other F.2d mandatory minimum sentences prison grounds, 480 U.S. consecutively any sen- imposed to other case, (1987). In the instant L.Ed.2d 533 tences. instance, pro- specifically the release order extremely important It is to remember print in bold that the defendant vided considering relat- provisions “Not these any and warned they ed to detention that should Criminal Offense” Commit commit- isolation, you “if are convicted of an offense in rather not be considered but released, you subject to many shall be as one of facets of this bill ted while appli- provide any some to the crime other penalties seeks to relief addition to ... problems besetting the Thus, enacting District of Colum- penalties_” cable provide judges we bia. While more dealing Repl.), D.C.Code § (1989 trials, reorganize expedite the courts to release, the Con- the revocation of with fully problem realize that we “[bjecause specifically noted that gress currently being criminal defendant re- betrayal of trust is based on a revocation under the Bail Act of 1966 leased Reform court, there by in the defendant placed poses safety persons a threat to showing a that there be requirement is no community and must and the that should defen- probability of substantial met. he for which committed offense dant Rep. Cong., No. 91st 2d Sess. 93 H.R. or that the originally released (1970). Cong. felony.” must be Rec. 8210-11 report’s (1970) (excerpt from Committee discussing possible rise giving In factors Likewise, it section-by-section analysis). “indisputable many defen- fact they more charge would be objective original such that 1328 invokes That the section strong governmental plain. engage "The once re- likely interest conduct criminal government’s preventing interest they would be otherwise. leased than event, legitimate compelling.” arrestees is both offend- set the release the scheme forth in Salerno, constitutionally infirm is not rendered er statute 2095, 2102, generalized statistics simply it relies on because predict See future criminal conduct. fling” phenomenon need not be This “last Salerno, supra, States v. Congress truly guilty. confined to the viewed as reasonably single (Congress could S.Ct. at 2103 might reasonably have believed that numerous category specific arrested for out individuals system persons caught up justice in the criminal being likely, as far more reasonably of offenses whole, sufficiently apprehensive, might be arrest). not, dangerous acts after to commit potential of conviction about may betrayal imposed be viewed as a of trust aas sanction for the first of- commit a crime while on release. “One imposed fense. The sanction is for the demonstrates disdain for the law com- commission of the second offense while on mitting an pending offense while on release already demonstrated, release. As Webb, State v. charge.” trial of an earlier think rationally we could 309 N.C. 308 S.E.2d 258 impose greater penalty persons on such (1983). One such with an attitude could convicted for criminal offenses such cir- meriting longer prison well be viewed as cumstances. Grayson, See United term. States Furthermore, argument appears 2610, 2615-16, be based on a belief impose that to collat- (1978) (noting approval with consequences eral for an involvement with Appeals holding federal Courts of decisions justice system the criminal short of convic- the attitude of a convicted defendant infringement tion is an unconstitutional respect willingness to his flout presumption of innocence. This is not [by committing perjury] proper law is a the case. by sentencing matter for consideration judge). construing Courts the Federal Firearms Act,10 punishes persons which sum, indicted who

In say Congress’ we cannot ship receive or firearms in interstate com assessment of the District’s crime situation merce, consistently rejected have and its chosen course of action to claims combat problem by enhancing penalties per- statutory the for classification is irrational that, sons an ground treating convicted of offense while on re- in indicted unconstitutionally lacking lease is in ration- persons differently, “adversely it affect[s] ality.9 See, presumption e.g., of innocence.” Craven, United States v. 478 F.2d

B. denied, (6th Cir.), cert. 1340 accepting proposition Even that Con- (1973) (classifi 38 L.Ed.2d 491 gress may general single out for en- Congress’ cation valid since conclusion that hanced those who commit felony fact of indictment is “so often indic release, appellant crimes while on propensity ative of a for is “emi violence” argues applied that the section as is uncon- nently reasonable”); United States v. specifically, argues stitutional. More he Brown, (5th Cir.1973), 484 F.2d 424 given opportunity that he must be an cert. show the first offense involved in fact (1974) (no merit to claim that him, culpable by no conduct or that uncon- innocence; presumption statute violates proce- stitutional methods were used underlying whether indictment later found leading dures to his arrest for the first significant complete invalid not since crime offense. when firearm carried interstate com indictment); fallacy approach appar- by person in this merce then under One is its Quiroz, v. assumption ent United States that the enhanced sentence 449 F.2d 922(n) (1988). simply 9. The scheme is not infirm 10. 18 U.S.C. The statute makes persons “any because believed that all person it unlawful for who is under indict- deterrence, special release were in need of whereas in fact punishable imprisonment ment for a crime persons actually some such exceeding year ship term or trans- posed Congress a threat of recidivism. The line drawn port foreign any in interstate or commerce fire- long perfect, need not be so as it any arm or ammunition or receive firearm or See, e.g.. City serves rational ends. New York shipped ammunition which has been or trans- Beazer, Authority Transit 592- ported foreign in interstate or commerce.” The L.Ed.2d provision previously substance of this codi- (transit authority constitutionally could refuse (h)(1) 922(g)(1) (Supp. fied at 18 U.S.C. & V §§ employ though all users of methadone even and, that, 1965-1969) at 15 U.S.C. persons employees; some these would be fit 902(e) (f) (1964). & §§ may that total exclusion rule necessary” be "broader than judicial does not authorize interfer- decision). policy ence with that (9th Cir.1971) (noting “Congress did an offense which a court of ed of may consider for say underlying that a receive and conviction on the appropriate purpose imposing an ingredient was an indictment penalty”). crime”); States, Lewis v. cf. of the courts has inter- Not one (1980) (Congress rationally could conclude 1983), preted (Supp. Ill U.S.C. § conviction, felony unvacated even analogue to re- the federal the District’s one, allegedly an invalid a sufficient ba- is statute,12 sug- remotely lease offender even prohibit possession sis on which to pre- gested the statute violates firearm; validly limiting scope of statute sumption Supreme of innocence.13 The convicted felons would be at odds with Court, discussing noted section whole).11 statutory as a scheme many “is no different from that the statute minimum requiring federal statutes other Act It is true that Federal Firearms holding that section 3147 sentences.” issued, requires that an indictment have separate offense, create a does not while here the status alone suffices stated that “sim- Ninth Circuit the statute trigger provision. enhancement ply mandates an enhanced sentence However, prior standing arrests alone have commits offense while someone who given effect certain contexts. See been excep- nothing There released on bail. Hudson, 404 A.2d District Columbia v. vague it tional about nor is (D.C.1979)(discussing uses of ar- ambiguous. language plain records); rest Villines v. United Pat- meaning is clear.” United States (D.C.1973) A.2d 304 to consider (proper Cir.1987). (9th terson, F.2d prior deciding grant arrests to whether Mesa, 641 See also States v. United ap- pending release (section 796, (S.D.Fla.1986) F.Supp. 798 States, peal); Russell v. 131 U.S. grants pow- to “clearly the courts 3147 44, 45, 185, 402 App.D.C. F.2d 186 penalty for an offense er to enhance (same); (1982) (providing 18 U.S.C. 3577 release”). while on committed placed limitation shall be on “[n]o concerning background, sentencing judges information It is well-settled character, person and conduct discretion.15 The Su- of a convict- are afforded broad Indeed, Pennsylvania, opinion holding 11. We do not read an the federal McMillan v. 79, 2411, 477 U.S. 106 S.Ct. sentencing guidelines 91 because unconstitutional (1986), pointing contrary as to a conclusion to right they impinged on the due holding our proper procedures required here. case dealt with the That during as an the sentenc considered individual enhance when the ing process, 3147 cited as an exam section was possession factor was Here ment of a firearm. what, hand, permissible. ple of on the other is factor the enhancement is release sta 1303, Alafriz, F.Supp. 1310 v. 690 challenged tus. It is not that the burden is on (S.D.N.Y.1988). prove that fact or that the proper court is the that fact. Tansi decider of 522, 524, Rodriguez, U.S. 14. United States 480 States, 799, more v. United (D.C.1976). A.2d 355 1391, 1392, (1987) (per 94 L.Ed.2d 533 107 S.Ct. curiam). in the was whether sec- At issue case expressly 12. Section 3147 was after the repealed proba- modeled implicitly the federal tion 3147 District’s section 1328. United States v. Coo- See the Second The Court overruled tion statute. 991, Cir.1987) (section (4th per, F.2d 994 827 it did to hold that not. Circuit large part "based in District of 3147 ... (citing Columbia Release and Detention Statute” York, Williams v. New Cong., 98th 2d Sess. re- S.Rep. No. 1082-83, (1949); 93 L.Ed. 69 S.Ct. Cong. printed in 1984 U.S.Code & Admin.News States, A.2d Grant v. United (D.C.1986); 3182, 3188, 3195, 3200, 3203-04, States, A.2d Johnson v. United 3209)). One difference between the federal States, (D.C.1985); v. United Williams scheme, legislative that the Dis- the District’s (D.C.1980), cert. A.2d stating provision statute includes that: trict’s giving warning person of a when “The (D.C. v. United A.2d Butler penalties imposed released of the this section 1977). prerequisite application shall not be 23-1328(b) (1989 D.C.Code § this section." Repl.). preme jected Court has held that it is a “funda- to enhanced for a new sentencing principle” judges mental solely prior on account of his arrest may inquiry scope, “conduct broad very wrong and release. The which was largely unlimited either as to the kind of done him in connection with the offense consider, may information he or the source he did not commit becomes a vehicle may from which it come.” United States imposing a harsher only for the Tucker, crime of which he stands convicted. (1972).16 In this con- Judge As points Steadman out for the text, perceive it is difficult to how Con- however, plurality, Speight ordered, as was gress constitutionally could be held to be case, a condition of release in the earlier precluded enacting from section 1328. To repeat, punished the sole not to commit a He is the crime criminal offense. dis- committing an offense while release. obeyed distributing order cocaine flow, penalties Under section and, Judge out, points as Steadman he be- arrest,” from the “mere fact of from but trayed the A defendant’s court’s trust. engaging the affirmative act of in an of- culpability may reasonably be viewed as fense, resulting conviction, during post- more serious when his offense commit- was arrest release. can find no We unconstitu- ted not in violation of a substantive tionality in statutory this scheme. criminal statute but also contravention of a court is no order. There doubt SCHWELB, Judge, Associate jurisdiction the court acted its within Judge joins, whom Associate FERREN release, it set Speight’s the conditions of concurring: Speight obliged comply with the person A who has been arrested but not regardless court’s order of whether he presumptively convicted is innocent. To underlying committed the release offense. say may subjected that a defendant Bolden, A.2d See Bolden v. greater punishment merely because he has (D.C.1977); United States v. United cf. been arrested for a offense which he America, Mine Workers committed, presumed not to have with- (1947). Speight’s 91 L.Ed. 884 requiring showing out at the same time enhanced was therefore constitu- court, of of faith breach with the raises due applied tional as to him. Defendants I, least, process problems which find jurisdiction routinely this are ordered to troubling. appears It me arguably to in- obey the law as a condition of fairness, compatible principles with basic of release, unnecessary and I it reach find to process designed which the due clause was relatively the rare situation in one protect, permit to to an individual who has who commits a crime on release sta- while arrested, handcuffed, wrongfully been order, tus has not also flouted a court period detained for some of time for a court,1 promise which he did not commit to be sub- to the or both. broken Bernard, ment); Marines, 16. See also United States v. F.2d United States v. F.2d 757 535 (4th Cir.1985) (no process prob (10th Cir.1976) 1444 due (sentencing judge may 554 con- sentencing judge exercising lem where his sider evidence of courts in an indictment which respect discretion relied on evidence with pursuant plea bargain); had been dismissed acquitted); crimes of which defendant was Unit (2d Sweig, United States v. F.2d Campbell, U.S.App.D.C. ed States v. Cir.1972) ("just sentencing judge may rely as the (1982) (noting n. F.2d n. upon the information as to crimes with which uniformly cases "[t]he allow consideration of tried, charged defendant has been but not [cita- prior acquittals” by sentencing judge); United omitted], judge properly tion so here the could Bowdach, (5th States v. F.2d respect refer to the evidence introduced with Cir.1977) (sentencing judge may evi consider acquitted."). crimes of which defendant was dence of crimes for which a defendant has been convicted); indicted but not United States v. judges orally explain the Some conditions of Lee, (4th Cir.), F.2d cert. defendant, being require release and released, the before (1976) (sentencing judge may accept prom- the conditions and to consider evi obey dence obtained violation of Fourth Amend- ise to them. offense, the as well as the second Rogers that viction of agree Judge I with Chief violating a condition That for penalty provided is not a crime. “disdain for the law” mean, however, of in the ab- release, process that a breach due does not violates of proper predi- relating the court is not a finding culpability faith with sence punishment. imposing for more severe cate can cite plurality offense. to the first sentencing judge has discretion A wide upholding authority case or other no may types of which he or she evidence punish- constitutionality such additional determining sentence. use in a defendant’s suggests ment, concurring opinion See, Grayson, e.g., United States contempt without analogy to criminal 2615-16, use acknowledging the constraints York, v. New Williams time, short, the first power. In for of such 1079, 1081- process due chal- upholds against a a court (1949). Specifically, 93 L.Ed. 1337 punish- additional lenge imposition criminal conduct of judge may consider years imprisonment up ment for to five has not been convict- which the defendant having been arrested without the status of ed, society as his attitude towards as well the first any judicial determination Un- prospects for Id. rehabilitation. culpable conduct offense involved circumstances, Congress may, with- der the defendant. proscrip- transgressing constitutional out raised this case The central issue tions, additional provide for requires the constitution whether commit- situations where a crime has been an additional sentenc- government prove stat- ted not in violation a criminal incorpo- beyond expressly those ing factor a court ute but in contravention of also Es- offender statute. rated in the release judge. To re- promise order or a a de- sentially, argument is that when quire betrayed judge’s trust who legal innocence fendant asserts his pay greater penalty deny him does not offense, the statute is unconstitutional first liberty due of law. without preserve individual in order to because Accordingly, judgment I concur in the arbitrary punish- rights prevent and to court, substantially narrower but on conduct, ment of innocent grounds. the first is some basis for must show there offense, governmen- check and in order to ROGERS, Judge, Chief with whom power, it must also demon- tal abuse of Judge Associate NEWMAN were constitutional methods strate that Retired, Judge, join, Associate MACK used; is, point a defendant at some dissenting: procedural means afforded a must be can, course, Congress decide that culpable re- conduct asserting the lack being person who is rearrested after re- offense, pretrial if even garding the first pre-trial leased on release should be sub- only a to be status is assumed jected punishment. additional Such be- factor. explicit con- havior violates the trial court’s in- potential highlighted has Speight pre-trial dition of release that the defen- (1981) by firmity in D.C.Code § commit is the dant not another crime. This five-years his additional contending that scrutiny only rationale which withstands could exceeding which imprisonment, cul- the first offense did not involve when infa- an imposed, constitutes otherwise be by the defendant or is other- pable conduct dangers of inade- crime, by citing the in mous issue non-punishable.1 wise review, asserting grand however, quate jury case, Speight’s is whether past for a ar- increasing punishment imposition such excess by conviction violates followed penalty upon authorized con- rest not the maximum reference, which the defendant to the offense of I the terms “first to refer 1. For ease of use being on to refer to the offense for which arrested while offense" been convicted after initially subsequently arrested and defendant is § release under 23-1328. 23-1328, "second offense” § released under presumption ject upon constitutional of innocence un- conviction of the second offense face, der the to an additional due clause.2 On its as sentence of not less than nor more than plurality argues, years imprisonment one five the release offender the second offense is felony, punish does not the de- § ninety days less than not nor arrest, more than solely prior fendant for a year imprisonment when the second deny would process, pun- due instead but offense is a misdemeanor. Under the stat- committing ishes the defendant for the sec- ute such sentences imposed must be con- ond pretrial offense while on release—an secutive to other imprison- sentence of act to presumption which the of innocence ment. applies still in full It force. does not fol- . low, however, that a conviction for the sec- This characterization of an arrest and ond offense can foreclose a defendant from charge as, for the first offense under some asserting legal his innocence of the first circumstances, “innocent conduct” is based offense, illegality or the of his first of- legal on more than a presumption.4 fense, pre- as a circumstance that would general, statutes, as recidivist Con- clude imposition of the release offender gress may constitutionally single out a penalty.3 statute’s additional Accordingly, class, acts, by past provide defined I dissent. potentially greater punishment for future instances,

crimes. In such legislature I. may propensity use a conviction as primarily procedur- evidence because of the per- had reason to believe that protections al that obtain in the first in- large sons on release commit a Here, Congress general stance. relied on crimes, legitimately number of and could during pretrial evidence of “recidivism” re- anticipate larger penalties would in- lease, suggestion “lifelong in- Nonetheless, crease deterrence. the re- corrigibles” awaiting will reform while lease offender potentially statute is over- trial, persons and on the observation that broad it punish because can be used to temptations on bail would succumb to the innocent conduct. In those circumstances fling” greater of a “last order to find a process. By it will violate due its terms potential for the commission of future the statute could used to increase sen- S.Rep. Cong., crimes. No. 91st 1st years tences as much as five even when (1969); H.R.Rep. Sess. 3 No. 91st there is no original reasonable basis for the Cong., Managers 2d Sess. 82 arrest or the defendant’s fundamental con- Cong., Part of the Senate for S. 91st rights stitutional have been violated. For Sess., Regarding 2d Statement the Confer- example, under 23-1328 it is conceivable 2601, (Comm. Upon ence Action E. Print that a completely person pre- innocent 1970). trial release for a crime he did not commit would, subsequently arrestees,5 who is arrested concerning be- General statistics status, however, basis, legitimate cause of his be sub- afford no with- Speight analysis sentenced to a total of to 15 4. This is not inconsistent with the line holding illegal years imprisonment. decisions arrest with- The maximum subsequent prosecution out more cannot bar years. for cocaine distribution is 5 D.C.Code nor be a defense to a valid conviction. See 33-541(a)(2)(B) (1986 Supp.). he Because Crews, 463, 474, United States v. 445 U.S. 100 convictions, prior had his sentence was en- 1244, 1251, (1980), S.Ct. 63 L.Ed.2d 537 33-548(a). by years. hanced another five Id. § cases cited therein. challenge He does not that the maximum sen- years. tence for his distribution conviction is ten See, Examiners, e.g., 5. Schware v. Board Bar of 232, 241, 752, 757, U.S. 77 S.Ct. 353 Speight's challenges 3. to the first offense (1957) ("When charges formal are not 796 against filed grounds charge was the result of an person the arrested and he is released unconstitutional search and seizure and that trial, probative without whatever force the ar- dangerous weapon charge by was dismissed might normally dissipated.”); rest have had is grand jury States, 203, 224-25, were not considered the trial Scales v. United 367 U.S. 81 1469, 1483-84, judge (1961) (“In imposing in sentence. S.Ct. 6 L.Ed.2d 782

133 (1970),7 interest more, legitimate nor predicting punishing L.Ed.2d 368 out pre- the ante” on the basis “upping in any given State- behavior of individual.6 events; im- triggering sumptively innocent in- propensities “lifelong ments indi- greater duty on “innocent” posing a persons eorrigibles” applied cannot be unjustifiable.8 is viduals Any charges. are innocent of the who fling” phenomenon confined “last would be repeat statutes9 analogy offender committed crimi- to those who have fact alleges clearly faulty a defendant appre- have a reasonable nal acts and who innocence of the first offense and being of the second hension of convicted com- of the second offense been convicted Moreover, contrary plurali- to the offense. pretrial release. Under mitted while 8, ty’s suggestions per- at 127 n. innocent statutes, there has been a repeat offender crimes propensity sons no to commit separately charged a prior conviction of persons no reason to fear who have af- after the defendant has been conviction because of insufficient evidence process protections required forded the due constitutionally impermissible govern- 358, 90 by Winship, supra, 397 U.S. S.Ct. necessarily do not have their mental action circumstance, In that the conviction altered for the the fact of record; motives worse in the public is a historical fact of re- circumstance, their recent arrest and current government can instant government lease status. The can have no prove only the first arrest and the release punishing seeking interest what amounts to inno- an addition- as historical facts. Mullaney, supra; see In re conduct, period cent al of incarceration burden, 358, 1068, offense, Winship, 397 U.S. government’s 90 S.Ct. 25 1332, (1958). guilt jurisprudence, personal_’’). 2 L.Ed.2d 1460 our 78 S.Ct. prior may Congress’ general of a arrest be While fact included must show that presentence report applicable in federal to chronicle case. fears are in the individual general history, defendant’s “a record of arrests prosecution not be without or conviction must California, U.S. Robinson v. Cf. wrongdoing.” equated with evidence of 1417, 1420, ("one 82 S.Ct. 8 L.Ed.2d 758 Cesaitis, F.Supp. States v. day prison would be cruel and unusual for (E.D.Mich.1981) ("cannot be considered indica cold”); having a common the ‘crime’ of propensities"). Allowing tive of criminal 651, 660, Wright, Ingraham v. 430 U.S. explain the defendant circumstances of 1401, 1407, (1977) (eighth 51 L.Ed.2d 711 helps the arrest to avoid misuse of this convic "imposes substantive limits on what amendment Columbia, tion. Id. In the the sen District such”); punished as can be made criminal tencing judge may consider reliable evidence of Frazier, App.D.C. Stoutenburgh the "defendant’s character and the circumstanc (1900) (”[i]t clearly a cruel and unnat- would surrounding es the crime of which he has been impose imprison- fine and ural States, convicted.” Johnson v. United A.2d might happen upon party, because he ment (D.C.1985); States, Williams v. United suspicious regarded by persons some as (D.C.1980), 427 A.2d cert. more.”). anything Compare person, without Texas, S.Ct. Powell v. question This court has not addressed the (1968) (upholding punishment for sentencing judge may impose whether a although public commit- act of drunkenness in solely prior, harsher sentence because of a un intoxication; unresponsible ted while in state related arrest. See District Columbia v. Hud itself). punishment for the state no additional son, (D.C.1979)(en banc). 178 n. 4 Tot v. United Cf. City example, Papachristou Jack- 8. For (1943) (re 87 L.Ed. 1519 sonville, L.Ed.2d quiring between fact rational connections legisla- a state the Court ruled that proved presumed). and fact vagrants punish out of fear of the could not ture they might cause. An arrest future harm that legislature greater power to 6.That has the cannot, general, as a viola- be characterized years underlying offense does add five part of the defendant. Parker tional act on the held, not, Supreme repeatedly Court has States, (D.C.1977) (crimi- 373 A.2d 906 v. United necessarily power it also has a lesser mean contempt). nal infringe upon would fundamental constitutional Wilbur, See, rights. e.g., Mullaney v. 421 U.S. States, 684, 1881, (1975); A.2d 1231 v. United 408 9. See Daniel 44 L.Ed.2d 508 95 S.Ct. 254, 1011, curiam); (D.C.1979) (per Tansimore v. United Goldberg Kelly, v. U.S. 90 S.Ct. 25 397 States, (D.C.1976). Randall, Speiser A.2d 799 v. 357 U.S. 355 L.Ed.2d 287 134

by logical analogy,10 cannot be the same sentence far excess of the maximum when the defendant violating asserts his innocence authorized for a condition of his of first offense. any opportunity See Patterson v. New without to “meet York, 197, 207, 214-15, 432 against U.S. 97 charges regarding S.Ct. him” in- his 2319, 2325, 2329, 53 L.Ed.2d 281 nocence of first offense. Even assum- (under statute, ing New York his second arrest and consti- conviction met proof beyond its burden of a reason- tutes an intentional violation of his release status, able doubt on all elements of the offense given process the solicitude to due on which it relying was for a of contempt level for criminal sanctions in excess months, prove before burden to “extremely of six considered seri- placed penalties,” Bloom, affirmative defense was on the de- supra, ous 391 U.S. at fendant). Davis, 207, 1485, But see v. surely 88 S.Ct. at is no less (D.Calif.1989) (federal F.Supp. 715 imposing, 1473 warranted when without a hear- sentencing guidelines pro- innocence, of ing violative due on the issue of increased cess sentencing penalties up because factors need not years imprisonment to five proven beyond doubt). a reasonable under 23-1328.11 §

Nor can reliance on the trial con- Finally, determining court’s the existence of cul- tempt powers pable save 23-1328 from consti- sentencing hearing conduct at the § infirmity. 23-1329(c) tutional D.C.Code require would seem to at least full § (1981) provides up range procedural protections, that a sanction to six of short of a imprisonment months for criminal jury proof beyond con- trial and a reasonable tempt imposed any person can be analogous found doubt. An situation can be guilty intentionally violating Patterson, 605, in Specht condition found expedited non-jury release after an hear- 18 L.Ed.2d 326 ing “in principles applica- (1967). There, accordance with permit- Colorado statute proceedings ble to contempt.” judge, for criminal ted the psychi- trial on the basis of a nothing suggest There is report in- atric introduced at the tended the hearing, lengthen under 23-1328 to be the sentence of a de- § imposed pursuant contempt to the court’s fendant speci- who had been convicted of a powers. Congress sepa- judge treated the issue fied sex offense if the found that the rately and limited power. the extent of that defendant bodily “constitutes a threat of Where the contempt sanction for criminal public, harm to members of the or is an months, is more process than six due ren- mentally habitual offender and ill.” Id. ders the criminal jury act triable so Supreme 87 S.Ct. at 1211. The opportunity procedures defendant can have an Court found the to be inade- charges to meet by way quate, ruling defense that the defendant must be explanation. safeguards See Browner v. District afforded all of these that are Columbia, (D.C.1988) 549 A.2d lili fundamental to a fair trial: “that he be (citing counsel, Hoffman, present Muniz v. opportunity have an (1975)); heard, Bloom to be be confronted with witnesses Illinois, him, against right have the to cross-exam- ine, Speight given and to offer evidence his And own. States, U.S.App.D.C. Reed v. United 617- & n. 535 F.2d Cf. (D.C.1984) (procedure prior (1976) (cases cited). to establish con- procedur &119 n. 17 This impeachment victions under step upholding al has been cited as a reason for 14-305(b), denied conviction is sentencing guidelines against the federal a due defendant); Oliver v. United A.2d challenge process premised on the defendant’s (D.C.1978) (evidentiary hearing required when right present challenge evidence validity challenged conviction is basis of the sentence. See United States v. Lan proceeding ground § 23-111 of denial of ders, (W.D.Tenn.1988); F.Supp. counsel). right sixth amendment Alves, (W.D. F.Supp. United States v. 1988). Supreme Mass. Court in Mistretta v. jurisdictions process In some due in sentenc- U.S., ing requires request oppor- defendant’s for an L.Ed.2d tunity judge did address these due to rebut information on which the Bass, granted. relies to be See United States v. claims. findings there the for counter adequate provided must be to make been defendant any appeal meaningful ing sentencing that is allowed.” enhancement factor at the 610, Id. at at adequate. McMillan, supra, 87 S.Ct. 1212. In re are U.S. Cf. 1238, (in Nelson, (D.C.1979) at 106 S.Ct. at 2417-19. commitment, government prove civil must important the of To the Court most these dangerousness by convincing clear and evi sentencing. the effect on The factors was dence). analogous argument The finding the argument stated that Court Speight legal is that the conclusion legislative separate a of the creation of present an defendants on superficial have at more fense “would least danger community added must be finding possession if a appeal of visible supported by procedurally a sound factual greater pun additional exposed them or finding Speight’s culpability of in the con 2113(d) ishment, (providing 18 U.S.C. § cf. duct for which he was first arrested. greater punishment for bank separate and 1209; Specht, 605, supra, U.S. 87 S.Ct. accomplished through ‘use of a robberies Tot, at supra, 319 U.S. 63 S.Ct. at device’), weapon it dangerous but does 1245-46. 88, 106 at at 2417. In not.” 477 U.S. S.Ct. distinguishing supra, 421 Mullaney, U.S. II. at 95 S.Ct. at the Court stressed opinion of Supreme recent the Court subjected there the that the statute convict Pennsylvania, in McMillan v. U.S. sentencing to a differential ed defendant (1986), pro S.Ct. ranging from a nominal fine to a mandato support vides additional for these conclu distinguishing ry life sentence. Id. petitioners sions. The chal McMillan decision, the Court Specht, pre-Winship a lenged, process grounds, Pennsyl on due a similarly post-trial stressed that the find vania statute increased the minimum solely report, ing, psychiatric on a based finding upon judge, sentence of the trial of life exposed the defendant to a sentence evidence, preponderance the year the ten imprisonment addition to petitioners visibly possessed firearm predicate maximum for the conviction during the commission of the crime for Pennsylvania sexual offense. Id. they already which had convicted. been contrast, McMillan, did statute in Upon of a felony conviction enumerated sep maximum or create a alter the petitioners already were offense, only arate but limited sentenc subject to a sentence which exceeded range ing judge’s discretion within required special finding by after the otherwise available maximum sentence. trial judge. 477 U.S. at 92 at n. “gives found structure The Court that this 2419 n. 8. The Court it held that tailored impression having been no constitutionally permissible to treat permit possession finding to be a the visible firearm factor as a considera wags the dog tail which substantive tion than as an the of rather element of regard Id. With second offense.” fense. at 2419. It Id. S.Ct. at factor, petitioners the Court observed distinguish identified three factors particular ‘visible did not contend from its McMillan decisions Mulla historically possession of a firearm’ “has ney, supra, U.S. legal Anglo-American ‘in the been treated Winship, supra, 397 requiring beyond a rea proof tradition’ as supra, Specht, doubt, Patterson, ], [supra sonable (1) They include: whether (Powell, J., 2335,] S.Ct. at [97 enhancement factor the maximum alters 106 S.Ct. at dissenting).” U.S. at cre sentence for the crime committed or calling sepa ates a for a separate (2) factors controlled the penalty; rate whether the The three imposed historically the instant for conduct that has outcome McMillan dominate doubt; beyond defensible if required proof case. The D.C. statute is reasonable procedures right due law whether the that have the defendant’s fully sentencing. undergo met that certain individuals a at the time of hood will substantially longer period McMillan makes clear that under Mulla of incarceration procedures ney, Specht, Winship, having previously the mere fact of been upheld by majority Speight’s in case pre- on the arrested and released basis inadequate pro are the defendant sumptively goal innocent conduct. The tests his innocence of the first offense. justification deterrence is no in this The mere fact of arrest and release has presume context because law must historically explicit legit not led to the proven guilty. a defendant is innocent until imposition punishment, imate as distinct Winship, supra. necessary from detention for the adminis matter, practical As a the release offend- justice. tration of criminal Cf. exposes er statute defendants to increased Salerno, States v. U.S. 107 S.Ct. punishment governmentally imposed for a (1987) (emphasizing, status, a “new and therefore establishes rejecting process challenge due felonies,” McMillan, upgraded set of su- preventive provisions of the fed detention pra, 477 U.S. at 106 S.Ct. at Act, eral Bail Reform the existence of “ex Contrary suggestion misdemeanors. safeguards” including tensive a “full — plurality opinion, opinion in the see at evidentiary hearing blown” at which the the release offender statute is different government has the to demonstrate burden provide from statutes which for an en- convincing clear and evidence that de aggra- on a factor hanced sentence based necessary, requirement tention is and a vating underlying The fed- offense.12 judicial officer make written find instance, eral firearms for as the ings of fact and a statement of reasons for concedes, plurality opinion requires detain); Martin, a decision to Schall that an indictment issued in or- have been 253, 269, 2403, 2412, 104 S.Ct. sentence, very der to enhance the differ- (1984); L.Ed.2d 207 Wolfish, Bell v. Speight’s ent situation than whose addition- 1861, 1873-74, year al sentence is based on an five (1979); L.Ed.2d 447 v. Me Again, arrest.13 it is no answer that lendez-Carrion, (2d 790 F.2d 1007-08 voluntary commission of the defendant’s Cir.1986). Indeed, portion a substantial second offense is sufficient because he has Rights Bill stands in direct contra obligation by embarking on assumed an possibility. vention of that release; Congress nor the neither hearing sentencing may A at the time of legitimate prosecutor can have a interest adequate determining for an historical proper imposing such a burden without the fact or the status or characteristics of the procedural protections determining Determining legal guilt, defendant. in con- adequate, legitimate, existence of trast, requires an examination of the com- predicate in rational factual an individual plex appropriate of fact issues and law case. protec- formal trials and full constitutional provisions,

tions. The release offender III. however, applied scrutiny are without analysis no violence to the Con- of the circumstances of the first arrest and This does enacting any requirement judge, petit gressional purpose that a 23-1328 without passed poses problem prosecutor for the jury, grand jury have nor who enforcing comparable recognized, matter. The effect is the likeli- has undeniable U.S.App.D.C. plurality’s reliance on District Colum- 12. See Jordan v. United 160, 163-64, 362, 365-67, Hudson, supra, 233 F.2d vacated on 404 A.2d at is mis- bia grounds, other specifically open placed left since court Moore, (1956); United States v. sentencing. could whether arrests factor U.S.App.D.C. 540 F.2d 1089- 5, supra. Id. at 178 n. 4. See note Davis, United States v. 710 F.2d (3rd Cir.), cert. and cases from other federal circuits cited therein.

137 And, plurality legislative goal federal the can trust.’ while the acknowl- edges the accomplished a that reliance on federal firearms readily in manner con- flawed, leading the act since element to protections. sistent with constitutional See, Patterson, e.g., in punishment additional is included the 820 conviction, it indictment and follows can (9th 1524, Cir.1987) (charge F.2d 1527 of in cite no or added case statute results pending appeal violation of included in bail in the au- punishment excess of maximum indictment).14 plurality’s The on reliance for penalty upon a Salerno, supra, thorized conviction 739, 107 S.Ct. pretrial on release. crime committed while 2095, 7, plurality opinion 127 at n. is mis- placed compa- the since D.C. statute lacks speaks sepa- not terms of Recidivism procedural protections.15 plurali- rable The of en- rate offenses but rather terms ty’s Congres- acceptance uncritical of the the pri- hanced “on account of Tansimore, supra, “betrayal sional assertion that the of trust" or 355 conviction.” culpability (citations Thus, if, the need a deter- omitted). eliminates A.2d at 803 at simply begs question: mination the if sentencing, a the time of there is no unquestionably apparent defendant’s first arrest did not involve cul- conviction “after conduct, “betrayal no pable then there is of a trial and after the accused been 23-1328, Patterson, Comprehensive supra, § 14. Similar to the ed States v. 820 F.2d at 1527. 1984, Crime Control Act 18 § of U.S.C. 3147 The introduced at trial before a (1987 Supp.), provides: jury copy Ap- on a certified of his “Bail Bond person peal” signed by judge. A convicted of an offense committed which was Count two of sentenced, pretrial while shall charged [on release] the the indictment Patterson with prescribed to the addition sentence for the being possession a of a felon in of firearm offense to— previously had been moved in commerce (1) imprisonment A term of less of not than 1202(a). U.S.C.App. of The § in violation 18 years years two and than if not less ten allegation indictment contained the additional felony; offense is post-conviction “on release” he was after imprisonment A term of not less than Ninth conviction of the felonies. The Cir- 1984 ninety days year more than if not rejected challenge cuit 3147 on ex- § also offense is a misdemeanor. post grounds. Id. facto imprisonment A term under this section friz, F.Supp. United v. Ala Neither States 690 shall be consecutive to other sentence of 1303, (S.D.N.Y.1988), plurality cited 1310 imprisonment. 13, Mesa, opinion n. at 129 nor United States Supreme ruled Court has that 18 U.S.C. (S.D.Fla.1986), plurality F.Supp. 641 798 repeal by implication judge’s 3147 not § does position. opinion majority’s at 129 advance (1985 authority under 18 & § U.S.C. 3651 1987 Alajriz, involving challenge federal sen- Supp.) grant probation to such defendants. tencing guidelines, the issue does address Rodriguez See v. United analysis by Speight, raised Mesa (1987). The United analogy adopted in Tan- relies on the fallacious Appeals States Court of for the District Co- simore, repeat supra, offender lumbia Circuit reached similar conclusion statutes. respect rights parole to a defendant’s 4205(b) (1982). § under U.S.C. See United (2d Rodriguez, F.2d 24 States v. United Mudd, U.S.App.D.C. States v. F.2d Cir.1986), grounds, rav’d on other Rodriguez pled In the defendant also is of guilty charge original to both the based holding. plurality’s See no assistance on her sale heroin while release. Rodriguez, again, plurality opinion n. 14. at 129 In Mudd the defendant committed the second analyzing Comprehensive Crime Con- recognizance his while released on own only probation is not trol and held Act sentencing pending for two convictions. Both Act, which a two- available under the mandates 4205(b) prospectively have § § been year imprisonment for defen- minimum term repealed by Comprehensive Crime Control committing dants an offense while convicted of 98-473, Act of Pub.L. No. Stat. 1976. States v. release. Nor 1985) (ef- (Supp. See 18 U.S.C. 3651 note Ill 50-51, Grayson, 2615- 1, 1987). postponed fective date until November (1978), of assistance interpreting case the constitutionali- plurality opinion plurality. at 128. See ty Comprehensive §of Crime Con- sentencing judge II, Grayson, the defen- viewed trol Act of Pub.L. No. tit. testimony trial a dant’s false rejected process challenge Stat. a due imposing the maxi- a sentence within factor in where status as a the bail-release was included at 44 & 98 S.Ct. at separate jury mum term allowed. Id. n. count in the indictment and the guilty of 2612 & 2. found the defendant that count. Unit- n. guilty,” inapplicable. Affording process pro- found due recidivism imposed. repetition clearly cannot be It is the tections as elsewhere have been re- criminal conduct—a crime quired impose punishment committed while in order to on bail for another crime—that is recidi- express excess of the crime of which a vism.16 presents defendant has no been convicted accomplishment of the obstacle to Con-

IV. gressional purpose, as is clear from the pretrial by Regrettably, federal release statute enacted personal since no less than stake, Congress subsequent pretrial to the liberty majority is at D.C. has skirted statute, and assures no less than presented. dispute the issue There is no protection of our individual Congress rationally that liberties. could include addi- punishment tional should follow arrest. APPENDIX Sentencing at The discretion not issue. process protections issue is what due following II III Parts and were con- to a

must be afforded defendant before panel opinion tained in the on December imposed. additional can be (footnotes origi- in the numbered as today, suggested Until no court has arrest nal), published in Atlantic Re- but not status suffices. porter. Surely noteworthy previously it is that II upheld against

the court had the statute Speight first contends that he had by constitutional attack reliance on an “charged,” meaning not been within analogy, faulty, repeat offender albeit 28-1321(a) (1986 Supp.),5 D.C.Code at the § statutes in which a defendant had received arrest, time of the cocaine with the protections full constitutional at the trial in carrying dangerous weapon, a and leading to the first conviction before an charged. He contends deed was never so repeat enhanced offender sentence could be person “charged” felo that a is not with a imposed. supra. Abandoning See note by grand jury, ny offense until indicted must, approach, plurality as it that, interpretation proper under the equally faulty ground relies on an 1321, arrests, presentments, statutory because a scheme has a rational § merely hearings constitute “accusations.” basis it is’immune from constitutional due so, If sentence under process attack even an an additional individual de- imposed. Speight express assump- fendant maintains that the 23-13286 cannot be § underlying statutory argument tions scheme are relies on the incor- any applicable pen- plurality’s 16. As to the reliance on State v. alties in addition to other Webb, (1983), alties: 309 N.C. 308 S.E.2d 252 “dis- crime, (1) imprisonment not than A term of less dain for the law" is not a nor is it an years year acceptable imposing punishment one and not more than five if reason be- law, committing felony yond nothing while so convicted of that authorized suggests released.... Webb that the North Carolina (1987 similarly Supp.) provides requiring U.S.C. 3147 § consideration of bail release offenses sentencing, imposi- the time of authorized person an commit- convicted of [a] tion of a in excess of the maximum ted while tenced, shall be sen- [on release] sentence for the crime of which the defendant prescribed in addition to the sentence had been convicted. to— for the offense 23-1321(a) (1) provides pertinent part: imprisonment Section A term of of not less than years years less than ten if the shall, two Any person charged with an offense ... felony; offense is a or officer, judicial appearance at his before a imprisonment A of not less than term pending personal ordered released trial on his ninety days year if the ana not more than recognizance upon the execution of a misdemeanor. offense is appearance unsecured bond.... imprisonment A term of under this section pertinent provides part: 6. Section 23-1328 shall be consecutive to other sentence of (a) Any person imprisonment. an offense convicted of pursuant Supreme recently committed while released to section ruled that Court subject following repeal by implication pen- 23-1321 shall be 18-3147 does not statements; they clearly ad- accept- cited were porated 23-1321 a traditional into § importantly, Most judicial usage “charged” dressing other issues. ed of the word “charge” to the word authority they constitutional law. His consists did not restrict usage “charge” process. in sever- The fact of the word the indictment Costello v. Unit- example, in all of a grand jury al cases. For must indict for elements ed [, that other entities crime does not mean 100 L.Ed. the Court wrote bring “charges.” In countless cannot 397] grand jury “is the “charge” that an indictment apply the word cases courts preferring charges in seri- sole method for prose- decision to prosecutor’s formal also See Stirone ous criminal cases.” phases of the criminal cute and to other States, 212, United See, [, v. e.g., Gerstein 361 U.S. 217 80 S.Ct. justice system. ment accused”); L.Ed. 1519] 319 (D.C.1976). A.2d 189 270, “charges Wittenberg v. 273, against 463, (D.C.1979) (all 4 L.Ed.2d that are not made Williams United (1943) him”); 466 United [, (“indictment 252] Tot v. United v. States, essential (1960) (no 1241, 366 A.2d 128 States, charges an elements); 1244, trial on States, indict- 404 87 Alabama, Pugh, J., 400, 858-59, 923] 1999, concurring); made”). Charges one in which 402 (1965) (“the 2004, 26 L.Ed.2d 387] 420 U.S. 43 L.Ed.2d [, 391 ^[399] Pointer 103, pleas preliminary 54] U.S. 105 (1975); can be levied and to the v. 1, [, Texas, 11 (1970) (Black, 95 S.Ct. charge could hearing Coleman 13 [, 90 S.Ct. L.Ed.2d 854, ... v. felony present- in a case either at reviewed Speight’s reliance on these cases is not ment, or at a appearance, at the initial dispositive purposes. opinions for our Thus, “charged” charge preliminary hearing.7 did not intend to define the word (1985 authority judge's allegation separate count in the indictment under 18 U.S.C. 3651 in a § guilty Supp.) granting jury of that probation & found the defendant 1987 from to such and Patterson, States, Rodriguez v. 820 F.2d defendants. See v. United count. United States [480 522,] [, (9th Cir.1987). In that case the de- 94 L.Ed.2d 1527 533] (1987). pending appeal Appeals at the time The U.S. Court of for District fendant was on bail subsequent recently for which he of Columbia Circuit has also made a he committed offenses ruling respect introduced at similar to a defendant's was convicted. The with 4205(b) rights parole jury copy under a certified of his "Bail § 18 U.S.C. trial before (1982). Mudd, by U.S.App. Appeal” signed judge. See United States v. which was Bond on (1987). Rodríguez charged D.C. 817 F.2d 840 Patter- Count two of the indictment guilty charge pled original being posses- defendant to both the with the crime of a felon son qn and that previously based on her sale of heroin while been a firearm which had sion of pretrial release. In Mudd the defendant com in violation of 18 U.S.C. moved in commerce 1202(a). mitted the second while on his released App. The indictment contained § recognizance pending post- own for con allegation that he was "on the additional receiving government proper victions stolen after conviction of conviction release” ty unregistered possessing and for firearm 1984 felonies. unregistered and challenge § ammunition. Both rejected a Circuit also The Ninth 4205(b) prospectively repealed have been § and grounds. ex-post Id. facto § 3147 by Comprehensive Crime Control Act of 98-473, Agency example, and Pretrial the Bail Pub.L. No. Stat. 1976. See 18 7. For 1985) (effective et provisions, D.C.Code 23-1301 (Supp. § Detention U.S.C. 3651 note Ill § procedures 1987); 4205(b) repeatedly seq. refer to note § November 18 U.S.C. 1, 1987). handling "charged 1985) (effective persons (Supp. November standards Ill offense,” (detainee e.g., inter prospectively §§ 23-1303 has also removed the an view), release), (general pretrial by -1322 sentencing aspects -1321 minimum of 3147 delet § „ standards), -1323 years (general detention ing phrases and” "not less than two routinely (addict), (murder), must ninety days and.” See 18 -1325 and “not less than indictment; 1985) (effective grand jury see employed prior (Supp. to a note Ill § U.S.C. States, 1, 1987). 459 A.2d 134 v. United postponed November also Clotterbuck date until States, (D.C.1983); A.2d interpreting United case the constitutional Hazel 1984); (D.C. v. Ed Comprehensive validity Crime 3147 of the § (D.C.1981) (en II, wards, A.2d Pub.L. No. tit. Control Act of [, banc), challenge U.S. 1022 rejected cert. Stat. a due 141] as an where the bail-release status was included necessarily persons refers to all Accordingly, arrested we hold the word “charged” formally by simply accused of a crime 23-1321 means § defendant, government. formal accusation proceed to address the constitutional is- Speight’s interpretation of 23-1321 is sues. also directly contrary to this court’s read- ing congressional intent in Daniel v. Ill States, United Speight contends (D.C.1979) curiam).8 (per The court there him, applied offender as violates “Congress stated that was concerned about right grand jury his fifth amendment to a large number crimes committed indictment. He maintains that the addi people release.” Id. year five tional sentence constitutes an in S.Rep. (citing Cong., 91st 1st Sess. No. meaning famous within the historic H.R.Rep. Cong., 91st 2d No. fifth because of na amendment (1970)). Congress Sess. 82 found demon- of the punishment. ture See Green danger community strable added [, 183 78 S.Ct. sought to deter “bail recidivism”9 im- 642, (1958) (“an 2 L.Ed.2d infa 672] posing greater penalties for crimes commit- punishable by imprison crime is mous ted pretrial (citing while on release.10 Id. ment”). Thus, argues only he that since he Managers Part for Senate grand jury indictment for received the S.2601, 91st Cong., Sess., 2d Re- Statement distribution, of cocaine and not for garding upon the Conference Action essentially separate the offense of commit (Comm.Print 1970));

S.2601 31 see also release, ting felony pretrial he while on Tanismore v. 355 A.2d United right having was denied the substantial of (D.C.1976). Speight’s is contention ac- grand jury’s the of “dual benefit the func cordingly proposition reduced to the determining probable tion of if there is Congress only post-in- concerned about a crime cause believe that has been recidivism, dictment bail a contention that protecting committed and of citizens is with statutory inconsistent the stated prosecutions.” against unfounded criminal purpose. Branzburg Hayes, 686-87 meaning days plain The court first looks to the of and between arrest trial —which statute, by the words of probably the as understood com- for the minimum serious offenses— usage. mon disappear; or contextual United v. Bail- States addict’s the habit will not the life- ey, (D.C.1985); reformed; People’s Drug long incorrigible be will not Stores, Columbia, Inc. v. A.2d fling District phenomenon last the will still be of (D.C.1983) (en banc). Superficial clarity 753-54 present. inquiry, in-depth does not end our "for an con- H.R.Rep. (1970). Cong., 2d No. Sess. 83 91st sideration of alternative constructions 10.Congress statutory language may could be stated that: ascribed ambiguities reveal that the court resolve.” must potential dangerousness actual and of de- legislative Id. at court 754. The will examine charged persons crime to fendants history purposes the of the statute order community be the should confronted.... explain ambiguity, apparent to tradictions, con- resolve Dangerousness should be considered in deter- competing or to choose between mining pretrial conditions of release.... Nor constructions. use of the word in same solution, speedy more trials itself a for are no legal pro- similar also statutes situations can efficiently busy how matter urban court legislative Finally, vide evidence of intent. discovery system may operate, with all the susceptible where the statute is to more than motions, hearings, preliminary grand jury prefer interpretation, one valid courts tend to motions, suppression proceedings, prepa- interpretations ques- that avoid constitutional transcripts, expected of cannot ration trials be Dulles, [, tions. Kent v. 357 U.S. 116 sixty Society days. to occur within less than 2 L.Ed.2d 1204] not be suffer the should made to unreason- by risk of crimes able additional committed that: stated dangerous during period defendants this of [people delay.... pretrial [N]one of the will release] particularly Cong., obey motivated 2d H.R.Rep. the law dur- Sess. 83 91st No. ing period pretrial (emphasis supplied). release. In 50 or necessary appli fact only L.Ed.2d [, 92 S.Ct. additional 626] re pretrial concerns (1972).11 cation of 23-1328 § status, the court concluded that lease seeking re- By identify procedural adequate receives defendant “infamous” separate lease statute as government required to protection if the crime, directly con- Speight’s contention is identity facts of the prove the defendant’s trary precedent that this division. binds sentencing heari status at the and release rejected proposition This court routinely ng.12 The date offense is Id. creates a separate offense. grand jury in the indictment incorporated Tanismore, supra, 355 A.2d at trial, presented and must at the and the (petit) denying right the defendant the to a sentencing. the evidence time of As with com- jury trial on the issue whether he recidivist conviction under the release, an offense while on mitted Marshall, see United States v. necessarily held court banc) (en U.S.App.D.C. 440 F.2d 195 per- is clear above statute [i]t statute), (procedures applying recidivist only question tains [, cert. creating than rather a new substantive L.Ed.2d States v. 148] position offense.... Our is consistent Clemons, U.S.App.D.C. 440 F.2d general rule with the established vis-a-vis (1970) (same), denied, 401 U.S. cert. analogous repeat offend- situation of 227] [91 accepted statutes. The is that er view papers filed these recidivist statutes do not create readily incorporate dates of can offenses, separate but enhance the release, public are a which matter account of the con- Repeat or involves record. release status Fretag, viction. See Chandler v. regardless characteristics obtain [, S.Ct. 99 L.Ed. 4] underlying of in which the the manner (1954) [repeat statute]; offender Gra- act committed. nature of the fense is The Virginia, ham v. West 224 U.S. changed; court can itself is not the trial [, 623-24 S.Ct. 56 L.Ed. easily the distinct characteristics assess (1912) [same]; v. Jackson United 917] defendant, thereof, at a proof App.D.C. 95 U.S. 221 F.2d Jordan, hearing. Compare su post-trial (1955) [same]. 163-64, U.S.App.D.C. note at pra Id. at 803. (armed firearm); F.2d at 365-67 The rationale behind Tansimore dictates Moore, U.S.App.D.C. States holding applied Tansimore to 309, F.2d grand jury jury charge indictments as well as to (age of distributee distribution proce- selling trials. The court held that “certain punishment is increased for safeguards minor). adequate dural must be afforded before The defendant has statutory alle the heavier release can be contest opportunity offense these question A.2d The remains whether imposed.” gations. at 803. Because may government’s response Speight probable cause consider hear- 11. basis of jury separate Costello, entitled to a re say, supra, trial on the S.Ct. at [76 350 U.S. at grand offense lease is misdirected. The 408-09,] or evidence seized in violation functions, juries, petit "their and the interests amendment, Calandra, United States v. fourth serve, related, they while are nonetheless [, 38 L.Ed.2d capable distinction.” v. Bukow (1974), possessing while at the time same 561] ski, (7th Cir.1970), cert. 435 F.2d grounds power to refuse indict [, 401 U.S. 911 91 S.Ct. 27 L.Ed.2d government misconduct. example, right to a For there is 809] contempt petit jury trial in serious criminal appropriate release filed the 12. cases, Illinois, [, Bloom v. U.S. 194 88 papers, incorporated the second the date of right but not a 522] cocaine) (regarding and sentenc- at trial Green, grand jury supra, indictment. ing. Speight facts in the did not contest these Bukowski, [, 643]; supra, at 184 78 S.Ct. them. and does not now contest trial court grand jury at 1101. The indicts on the F.2d also the statute’s definition of the elements of

the crime meets require- constitutional

ments when more than release status is at Y,

issue. Part See infra. RAMSEY, Appellant, E.

James STATES, Appellee.

UNITED

No. 88-356. Appeals. of Columbia Court

District Sept.

Submitted

Decided Jan. Booth, D.C., S. Washington,

Walter brief, appellant. Jay Stephens, Atty., B. and Michael Farrell, W. Atty. Asst. U.S. at the time the filed, Collins, briefs were and Sharon M.

Case Details

Case Name: Speight v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Nov 28, 1989

Citation: 569 A.2d 124

Docket Number: 85-385

Court Abbreviation: D.C.