United States v. Albert E. Mills. United States of America v. Kenneth B. Wonson

prohibiting regulation Park Service’s on the Consti- America, of literature Appellant, free distribution UNITED STATES Bacon Drive side- Henry tution Avenue v. Me- Vietnam Veterans bordering the walks Ac- Amendment. the First violates morial E. Albert MILLS. judgment of the district cordingly, the court is America, Appellant, STATES UNITED

Affirmed. WILLIAMS, Judge, Circuit F. STEPHEN B. Kenneth WONSON. concurring: Nos. 90-3008. “public I believe continue to compli- artificially classifications forum” Appeals, Court of time, place judicial assessment cate District of Columbia Circuit. Community restrictions. See or manner Turner, 893 Non-Violence Creative for En 1991. Argued Banc Nov. (D.C.Cir.1990)(concur- present case seems a ring opinion). May Decided illustration; exactly we would reach useful public forum without result applying the court analysis. Whether time, place “three-pronged” test for a forum, public restriction

or manner test such a restric- “reasonableness” compa- elsewhere, key is the issue

tion speech with

tibility of forbidden the site is dedicated.

purposes to which

Thus, evaluating the solicitation ban

Kokinda, plurality four-justice both ad- Kennedy, concurring,

and Justice compatibility solicitation

dressed uses the Post Office the intended walk, compare 3122- 110 S.Ct. at

entrance (Kennedy, at 3125-26 (plurality), with id.

J.), Kennedy though assumed Justice public forum and walk affirmatively opposite. found

plurality

Indeed, main of “forum” here the role briefs, as has been to extend

analysis (necessarily) addressed parties

both in the forum characteristics both

sidewalks’ ban; analysis and then assessment addition, made that assess- both briefs assumptions, the existence

ment under two public forum. of a

and the non-existence analysis adds the allure

And forum while analytic seemingly steps, discrete earlier, argued I suggest,

decisions predictability. little in real adds

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

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

John R. Atty., Asst. U.S. Jay Stephens, Atty., whom B. Thomas Zeno, Kopistansky E. Patrice I. and James Meade, Attys., A. Washington, Asst. U.S. D.C., brief, were on the for the U.S. Tourish, Jr., D.C., Thomas J. Washington, appearance also entered an for the U.S. MIKVA, Judge, WALD, Before: Chief EDWARDS, GINSBURG, RUTH BADER SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, D.H. RANDOLPH, HENDERSON Circuit Judges.

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

Concurring opinion Judge filed Circuit SILBERMAN. days after Judge more than federal court—far opinion filed Circuit

Dissenting (seven months in Mills’s Judge D.C. arrests SENTELLE, in MIKVA which Chief Wonson’s). case, WALD, year The district HARRY T. Judges and Circuit the indictments on various RUTH BADER court dismissed EDWARDS including Trial grounds, Speedy Act viola- join. GINSBURG initial ar- It treated the defendants’ tions. WILLIAMS, Judge: Circuit F. STEPHEN charges in connection the D.C. rests with Robertson, v. We held in United States meaning the of 18 as within “arrest[s]” (D.C.Cir.1987), an arrest 810 F.2d 254 3161(b), found and thus a violation U.S.C. § under filing the followed 30-day requirement. See United not consti law does District of Columbia Roberts, F.Supp. 1359, 1371- 726 States v. triggering the Tri tute an “arrest” (D.D.C.1989).2 72 a federal indict requirement that al Act’s appeal by government, from de On days ment filed within 30 be panel of our decision “in reversed the basis connection with” fendant’s arrest It of course refused to over 18 Robertson. charge in the indictment. See U.S.C. Robertson, rejected appel also panel applied turn and it 3161(b) After a case, limited present suggestion lees’ that Robertson be to the United Robertson (D.C.Cir. special prevailed Mills, situation 925 F.2d 460 States v. (murder) in there —a D.C. for which 1991), granted rehearing en banc have been indicted defendant could not consider Robertson order whether Mills, court. 925 F.2d at 461. modified. ad federal should overruled or We be argument modify rejected appellees’ And it but somewhat here Robertson transfers, unlike the one in Robert analysis. these statutory our son, prosecutorial “ma wrongful involved noting nipulation”, it found “absolute and Kenneth Won- Appellees Albert Mills ly nothing support in the record to in September 1988 and son were arrested charge.” Id. 460-61.3 1989, respectively.1 They April were charged possession intent to dis- with with violation of D.C.Code

tribute cocaine provision Speedy Trial Act The offenses and were and other related D.C. provides: here issue Superior Court. While indicted in the charging Any indictment information or pending, the Bush Admin- their cases were of an an individual with the commission policy fight- for istration announced a new thirty days offense shall be filed within Columbia; the ing drugs in the District of the date such individual from on which prosecution drug policy for more called with summons was arrested served (rather district court than cases in federal charges. connection with such Court) advantage Superior take 3161(b) added). (emphasis 18 U.S.C. § Accordingly, tougher federal sentences. “any as Federal Act defines “offense” pend- Attorney’s reviewed the U.S. Office criminal offense”. 18 U.S.C. drug felony for ing Superior Court cases trigger mechanism is the arrest to federal court. The Thus possible transfer “in appellees’ for or service of summons connection Attorney selected cases charges.” possible The sole referent their indictment such transfer and secured remand, judgment opinion presented as to Holland should panel the facts in de- 1. The 457-59; tail, Mills, as moot. 925 F.2d at here we vacated see only briefly. review them rejected panel also due 3.The defendants' Mills, arguments, process 461- pending see 925 F.2d at 2. also dismissed district court co-defendant, against and remanded the cases to the district court Mills's federal indictment Holland, consider of these case had been for it to whether transfer Vernon whose also Sixth Superior Court. United cases violated defendants' Amendment from transferred Holland, (D.D.C.1990). rights, opinion F.Supp. trial id. at 464-65. Our 729 125 States v. holdings. appeals were On here does disturb those Holland died after taken. Jones, (8th v. Cir.1982)). F.2d charges” “offense” “such indictment, appears undisputed support There to be charged in the which because among reading must be a federal offense. the circuits for this of the definition then, reading, 3161(b) interplay natural the most between Under §§ United States v. 3162(a)(1). See, if it “in e.g., the clock arrest starts Summers, If, charges. (4th Cir.1990); connection with” 894 F.2d Bloom, here, accompa- v. United States the arrest was the case was 865 F.2d 489- Lee, charging complaint (2d Cir.1989); violations nied U.S.) Code, “in (not it was not (4th Cir.1987); the D.C. charges.4 Alfarano, (6th

connection with” Cir. Candelaria, United States v. 1983); Speedy Tri- provision The remedial of the United 1129, (9th Cir.1983); 1131-32 F.2d trig- suggests that the Act is al Act also Varella, States v. 1352, 692 F.2d accompanied are gered only by arrests that Cir.1982).5 (11th course, Again, of “of against filing complaint of a Federal criminal of “any fense” means provision That states: the defendant. Thus, if fense” under 3172. a District of § If, any against individual in the case of arrest were understood to start Columbia complaint charging is whom a filed remedy the clock there would no with be offense, an individual with such in- no statutory language. out a wrench of the filed within or information is dictment 3161(b) required by section the time limit directly Appellees understandably do not ..., against charge such individual proposition attack the that an arrest can complaint dis- contained in such shall be 3161(b) trigger accompanied by if a § dropped. missed otherwise charge. they But insist that a Dis- formal enough. charge is This trict of Columbia added). 3162(a)(1) (emphasis 18 U.S.C. § disregards course 3172’s definition of of 3162(a)(1) apply § As does not where § as a “Federal criminal offense” “offense” charges no have arrest has occurred but charges” and the fact “such filed, 3161(b) “arrest” been the term § “ 3161(b) type refer to the of must back ‘must construed as an arrest where § be ” federal—charged in the informa- person charged is with an offense.’ offense — Solomon, v. 1246, United States It is also inconsistent tion or indictment. 679 F.2d undisputed rule that a state arrest United States with Cir.1982) (8th (quoting 1252 not, however, decision on such def- reading rest our Act consistent with the 4. Our is 3161(b) made the U.S. Dis- erence. construction of (shortly for District of Columbia trict Court Criminal Procedure also The Federal Rules of passage) promulgated a Act’s when it after the statute, interpretation for support plan U.S.C. trial in accordance with 18 they contemplate arrested individuals be plan implements Section 4 of the § 3165. detailing 3161(b) charged complaint “the essential specifically provides in a that: and charged". constituting Fed. the offense facts charge of the District of Colum- A of violation complaint must be issued R.Crim.P. 3. The a ... and the bia Code is not prior the basis for an to arrest if it serves as begin of this rule shall not to run time limits warrant, 4(a), or at the Fed.R.Crim.P. arrest charged Supe- respect person to a in the with magistrate if the appearance initial before Columbia rior Court of the District of warrant, Fed. see arrest is conducted without until such District of Columbia Code offense 5(a) "complaint (requiring shall R.Crim.P. charged person court. in this [district] cases). course the forthwith” in such Of be filed 306(4)(c), Speedy Plan Rule Trial of Local filing requires prompt Fourth Amendment States District Court for the District United subject released. Cf. if the is not though pure is a Columbia. Even matter 854, 103, 114, Pugh, S.Ct. 95 Gerstein v. law, might appropriate be to accord issue of 863, (1975) (Fourth Amendment L.Ed.2d 54 43 contempo- court’s some deference to the district prob judicial requires prompt determination interpretation, both raneous as it was submitted restraint “prerequisite to extended able cause as of the United States to the Administrative Office warrant); liberty following without arrest” 3165(c) Congress, & Courts and to 3167, 18 U.S.C. §§ — McLaughlin, County Riverside v. see also unique an issue to this dis- and resolves 1670, U.S. -, Dixon, F.Supp. v. 446 trict. Cf. United States (1991) within (D.D.C.1978) (probable cause determinations (noting congressional grant of Gerstein). courts). satisfy 48 hours of arrest "substantial discretion” to district We writing Speedy Trial Act’s had been Tri- trigger Speedy does slate, construction clock, if the for conduct al Act on a clean such a even arrest is for subsequent plausible. Congress’s of a indictment is the basis But alloca- See, e.g., Supe- jurisdiction offense. United States the D.C. a federal tion of between Cir.1989); (5th Charles, 883 F.2d v. and district court— rior court the U.S. Janik, v. years United States adopted just four before the Carlson, Cir.1983); (7th v. United States vocabulary Trial Act—uses (8th Cir.1983); F.2d United plainly offense” limited to of- “Federal Adams, (9th F.2d against in the fenses federal laws narrower Cir.1982); Iaquinta, 674 States v. applicable of ones nationwide. sense (4th Cir.1982); 260, 264 F.2d Reform Columbia Court Cir.1977). (2d Mejias, 552 1970, Pub.L. Procedure Act of No. Criminal 473, Congress gave 84 Stat. attempt to distin- Appellees amici court the District of U.S. district Co- ground guish the state arrest rule on jurisdiction “[a]ny offense un- lumbia over upon notions of federalism that it is based applicable exclusively der law sovereignty”. argument “dual joined District of Columbia which offense is (the conceptual components: one has two in the same information or indictment with sovereigns), the other func- identity of (codi- any 111 Federal See id. § (the namely identity prosecutors, tional of offense." 11-502(3)) (emphasis fied at D.C.Code § Attorney the District the United States for added). virtually In this context it seems Columbia). ad- Mejias, first case of Congress that could have in- inconceivable dressing ultimately a followed state arrest (D.C. only, tended the two classes “Feder- indictment, federal relied by a indeed al”) overlap, many of to for otherwise sovereignty. part separate on the state’s brings D.C. offenses that the section within Mejias at 441. court’s 552 F.2d But the already jurisdiction federal would have ques- separate sovereignty reliance history Amendment, legislative there. con- tionable; been under the Sixth reading. See, e.g., H.R.Rep. that No. often arrests as firms courts have treated state 907, Cong., (1970); of 2d 33 see also triggering purposes the Amendment for 91st Sess. 1324, v. Shepard, federal the same con- States 515 a later United fact, (D.C.Cir.1975)(drawing Dissent duct. See at 1204. 1329-30 dis- practical tinction).6 also con- improbable Circuit It seems most Second invoked applies adopted much to the Dis- Congress completely sideration as different of immedi- trict as to states —the likelihood nomenclature when it addressed kindred indictments, clogging protective ate years four later. problem the federal courts in contravention of provided also expressly purpose. See at 442. More- Act’s 552 F.2d purposes 1970 Court Reform Act that for over, seen, pp. have as we jurisdiction general of the federal above, explanation the most direct references “laws of the United courts to intent, congressional rule is state arrest Congress” or Acts encom- manifested in the terms of the Act. applicable exclusively to pass “laws Columbia”, 28 District of see U.S.C. sovereignty The dissent takes the 1366,7 juris- other further, language and added to arguing that the stat concept still § clarify en dictional statutes would utory term “Federal criminal offense” purposes: parallels a treated as a state for those 28 compasses D.C. offense that (for Supreme If purposes 2113 federal one. See Dissent at 1195-96. U.S.C. § against background assumption that "federal of- of all offenses the laws of 6. The States.” encompass purely Co- fenses" do not District of U.S.C. lumbia crimes also manifest in 18 give Supreme Court has refused this 7. 3231, provides district which § "[t]he any negative Key provision implication. See original courts of the United States shall have Doyle, S.Ct. 284 n. 434 67 n. 98 States, jurisdiction, exclusive of the courts L.Ed.2d 238 criminals”; (2) ment references to “state the “trend of jurisdiction, Court disengagement District of Columbia Court courts” include Federal from District of Co- (for purposes Appeals); U.S.C. judicial lumbia and court § administration af- jurisdiction, references to “state of removal H.R.Rep. Cong., fairs”. No. 93d 2d Superior Court and court” include 48, reprinted Sess. in 1974U.S.C.C.A.N.at D.C.); include 28 U.S.C. “state” explicitly It noted the 1970 (“highest of a includes D.C. court State” prime Reform Act as a source of Appeals). See 84 Stat. 590-91. Court of developments. these Id. construing phrase Accordingly, Indeed, logic under the of the dissent’s of the United States” former “statute theory, charges involving even state feder- 1257(1)(1970), required the U.S.C. ally trigger criminal conduct would holding Supreme Court to review decisions long in contrast to the and unbroken line of invalid, to exclude such statutes contrary sidesteps decisions. The Dissent D.C.Code, explicitly followed the Court consequence by assuming that distinc- analogy of the local D.C. courts “the sovereignty tions dual and unified were by Congress in the 1970 state courts drawn uppermost Congress’s thoughts, see Dis- . Key Doyle, Act ” [Court Reform] assumption sent but is be- 280, 285, 59, 68, 98 S.C. lied the drafters’ evident and exclusive (1977).8 inter And we have L.Ed.2d politi- focus on the trend toward increased statute, question preted general And, autonomy cal for the District. rather 1331, as if D.C. were a state. 28 U.S.C. § meaning than address the Columbia, See, e.g., Dimond v. District of gave legisla- “Federal” in word related (D.C.Cir.1986)(applying explicitly tion that was noted in the draft- analysis aris pendent jurisdiction to claims Act, ing Speedy Trial the Dissent law). ing under D.C. appears largely to rest on the constitution- recognizes, Finally, as the Dissent a nat- congressional al status of the District and consequence reading of its of “feder- ural treatment of it in unrelated contexts. See application Speedy al” would be the (discussing All Dissent at 1198-99 Writs (directly) charges all in D.C. Trial Act Act, Act, Anti-Injunction jeopardy double Superior parallel possible a fed- Court consequences prosecutions of under U.S. charge. Congress specifically con- eral But provisions). and D.C.Code rejected applying sidered and the idea of record, then, find no On this basis Superior Trial Act to the Court concluding whatever for precisely itself. It did so to avoid undue reference to “Federal crimi- meant 3172’s affairs, interference with D.C. and federal to include D.C. offenses when nal offense” trends: thus to accommodate two related encompass conduct made they happened D.C., (1) increasing autonomy for political Instead, criminal federal law. popularly-elected to “have offi- which was earlier, years course four hewed to the set legitimate cials who will have a stake the states. treating the District the same as conditions, affecting community decisions congres- as to To refute these inferences particularly respect with to the control of intent, suggest combi- punish- sional amici that the apprehension crime and the and States, they guaranteed before are not trial v. United law" in 8. While Palmore 389, 395-96, 1670, 1675-76, judge offenses. 411 U.S. L.Ed.2d an Article III for local 390-91, 397-410, (1973), 1676-83. 93 S.Ct. at the Court declined to treat D.C.Code part any on the 1970 Court provisions And the Court relied in state” within "statute[s] 1257(2) noting goal “establish[ing] (providing appel- an meaning Reform of former system rejecting entirely functions essen- jurisdiction a feder- new court with late over decisions statute), tially challenge to those of the local courts found to a state the decision similar al law responsibility completely in the 50 States of the Union with consistent with our conclusion deciding distinctively trying local for those that D.C. code offenses are not "federal of- law, fact, includ- that arise under local In the Palmore court held that controversies fenses". little, having any, ing charged criminal laws if offenses can local defendants with D.C.Code jurisdiction.” impact beyond Id. at the local like of the 50 states ”citizen[s] be treated history). (citing legislative charged criminal 93 S.Ct. at 1682 when with a violation of state gation “substantial”); in the prosecutor was “extensive” or nation D.C. federal Attorney a creates Manuel, person of U.S. cf. United under Robertson unique practical (9th hazard: Cir.1983) (cooperation 914-15 between to the Attorney cases can transfer U.S. federal and tribal authorities does not “in an antici- court order avoid district arrest). arrest federal transform tribal into evidentiary suppres- pated unfavorable Appellees argue reading also that our ruling, or to effect a unilateral sion even gives Attorney Act the U.S. unfair scheduled trial date”. ‘continuance’ theory advantage, tactical on the eases Curiae at But the Brief of Amici “park” in Superior enables him to cases Attorney cooperat- make that U.S. clear 3161(b)’s 30-day strict Court avoid § authorities can the same. ing state If clock. a defendant showed the U.S. itself, example, the defen- In for Mejias Attorney deliberately him arrested on D.C. by a team of state dants were arrested Superior and secured a in- prose- They initially were federal officers. gain to gather dictment in order to time drug charges; New cuted state when prosecu- for additional evidence prosecutors suppression lost a York State tion, process have due New Consti- he a valid motion decided under the York Amendment, delay. Mills, pre-indictment of the Fourth claim for See tution’s version dropped and previously noted, indictments were As at 464. how- dis- ever, transferred cases were panel found that there no was 552 F.2d at 440-41. Mejias, trict court. See Attorney that the made evidence here U.S. Tanu, Ming Lai United States v. decisions to evade the strictures of transfer (2d Cir.1978), prosecutions were F.2d 82 460-61; Act. see Affi- See id. also product of a under- joint state-federal Jr., Harkins, reprinted of Charles J. davit first operation. cover The defendants were Holland, 729 F.Supp. take charged in state court order to (D.D.C.1990) (Assistant sentences, advantage of heavier but Attorney making asserts that in transfer indict- eventually dismissed the state court proce- he consider recommendations did not against ment defendant Tanu on Sixth posture, history, plea dural or amount of tri- statutory speedy and state Amendment pending time a had been case grounds. al at 84. the Second See id. Yet purposes). trial original that arrest Circuit held the is, special Attorney role of the U.S. 3161(b)’s trigger 30-day clock. did not § course, concept implementation of the in a originated Thus state arrest rule the sovereignty. Appellees sup- see of unified prosecution case the served where federal position conceptual in port for their that proceed- backstop as a an aborted state “give unity. As the Act is intended to real applied in ing has since similar been prosecutor’s ability meaning” guar- to use Sixth Amendment’s the to the cases. So antee, advantage H.R.Rep. reprinted the state arrest rule for tactical No. 1508 at provides they argue no distinction. 1974 U.S.C.C.A.N. parallel receive should construc- illus- Ming also Mejias Lai Tanu application the tion. And the Amend- principle now trate the well-established delay appears pre-indictment ment to clock arrest does not start the a state depend part on arrest and indictment in- no how extensive the federal matter having by sovereign. been made the same original volvement in the arrest. See also MacDonald, U.S. See United 456 Adams, (“regardless F.2d of the at 202 10 n. 1503 n. degree in a state of federal involvement (1982) (dicta); Wayne La- L.Ed.2d 696 R. arrest, only ar- investigation a federal Israel, & H. Proce- Fave Jerold Criminal running trigger rest the time will (1985); but see Dissent at 3161(b)”) dure period forth in 18 U.S.C. set § (discussing under circumstances (emphasis original); F.2d Iaquinta, 674 triggers pro- even state arrest Sixth Amendment (noting applies at 267-68 that rule charge). investi- tection for later federal joint where involvement to track the Report But the Act is not intended Committee noted that the lack of a the set of cases speedy Sixth Amendment. Within trial Superior statute Court covered, bright-line rules as- it establishes might encourage the Attorney U.S. to en- speed, suring minimum while at the gage in shopping”, given “forum his over- preserving time defendants’ Sixth Amend- lapping jurisdiction, D.C. and federal but ment claims in full. See U.S.C. 3174. Report suggested that if this became a post-dates passage And as MacDonald problem “Congress would have an obli- Trial it is hard to see gation to remedy ... through situation emphasis sovereignty on issues of how legislation.” future H.R.Rep. No. 1508 at congressional could have informed intent.9 49, reprinted in 1974 U.S.C.C.A.N. at 7441 (emphasis added). Although specific Moreover, although goal giving congressional simply decision was that the interpretation parallel the Act an Act as a apply whole should not Superior value, Sixth Amendment is doubtless cases, legislative Court history indi- sovereignty ways unified in some District’s recognition cates of the U.S. Attorney’s claim, against appellees’ militates as it af- role, special recognition sway that did not advantages fords defendants here Congress adopting from language First, by ap- shared state defendants. 3161(b) that solely addresses contention, pellees’ own a District arrest complaints and their attendant arrests. running will more often start the of Sixth Appellees would have remedy us the “fo- rights trial than a sim- Amendment shopping” rum occur in some argument ilar state arrest. The that the (in effect) transfer applying cases gives Attorney rule Robertson Superior Act to Court cases later unlimited discretion to transfer cases from transfer- “months, red to federal Superior years” part even after court. That is arrest, general more problem initial Amici Brief of Curiae at re- 12, ignores respect the Sixth Amendment’s role. served to itself. The case inis Indeed, panel present similar to Young, remanded Public Citizen v. (D.C.Cir.1987), case to the district court for legisla- consideration F.2d 1108 where the claim, Mills, history congressional constitutional see 925 tive recogni- revealed 465-66, F.2d at a remand we here affirm. possible change tion of one in scientific presuppositions expectation and an greater Defendants also receive change would address the if it jeopardy protection double in the District: occurred. There inferred an wé intent to prosecutions successive and federal changes handle related but different in sci- subject for the same conduct are to the bar understanding way. entific the same See Robertson, jeopardy, see double id. at 1117-18. We find the same 257; Alston, F.2d at United States v. appropriate inference here. (D.C.Cir.1979)(dicta), 537 n. 31 prose whereas successive state and federal not, are cutions see Abbate v. United Accordingly, we reaffirm and Robertson

States, 359 U.S. S.Ct. hold that an arrest connection with Illinois, (1959); L.Ed.2d 729 Bartkus v. 3161(b) charges triggers 682-83, 121, 132-33, Speedy Trial Act. We remand the cases to the district court for it to consider defen- legislative history explaining Finally, the dants’ Sixth Amendment claims. See Congress’s apply Speedy decision not to Mills, 925 F.2d at 464-65. Superior Trial Act to the Court itself lends support inferential to our decision. The Reversed and remanded. free, puzzling suggestion powers, that District under

9. The dissent makes its home rule Dis- deprives our decision District and defendants trict of Columbia Self-Government and Govern- speedy legisla- trial Act, citizens of the benefits of Reorganization mental Pub.L. No. Dissent at 1200-01. But it was Con- tion. See gress’s (1973), 87 Stat. 774 to follow the states that have apply not to the federal statute decision adopt special chosen to rules. court, 1191, leaving Superior see above at structure, with Judge, caselaw, SILBERMAN, our constitutional Circuit and experience. concurring: close, very to be to me The case seems I. directly address not Congress did because by noting problems We begin the severe I can find little presented, and the issue Robertson decision. underlying the We to infer its from which convincing evidence part entirely so to make it clear that the forceful criticism dissent’s intent. rightly abandoning much of the rationale is beside some of Robertson’s Robertson reasoning, merely “some- interpre question now is which point; modifying] statutory analysis.” our what accords with of the statute better tation foresh- Majority at 1188. We do so also to legislative history. On language and problem adow the ultimate that remains balance, majority has the better I think the offers, analysis the majority new reason, analysis. and be For salvage attempt that must remain close en banc case I that in a cause believe the Robertson result. respect, to some precedent is entitled prior Robertson, panel con majority opinion. See Save Our join I cluded that “a District of Columbia arrest Hodel, Mountains, Inc. v. Cumberland should treated as a arrest” for the state banc) 1516, 1534 (D.C.Cir.1988) (en purposes the Act. F.2d at (Starr, J., dissenting). I do so notwith speedy State arrests do not start trial my the United States standing distaste for ticking, stemming clock for reasons from practices prosecutorial Attorney’s sovereignty “rec principle the dual which case, re practices gave rise to this ognizes government that the federal is not drug bringing to his insistence late bound the actions of state authorities apparently court that cases our district prose that successive and federal in federal else brought not be court would constitutionally permissible.” cutions are where. 435, 441- Mejias, (2d Cir.1977). SENTELLE, Judge, explicitly Robertson Though panel whom Circuit WALD, recognized MIKVA, Judge, and HARRY the District of Columbia Chief independent EDWARDS, assuredly “most is not” an BADER T. and RUTH sovereign, it nonetheless two “sound GINSBURG, join, found Judges, Circuit analogizing arrests reasons for dissenting: state, federal, rather than arrests” Rob- Today we revisit United States v. purposes. F.2d at 257. trial ertson, (D.C.Cir.1987), 810 F.2d 254 First, hypothesized applying the Act a District Columbia question whether “[pjressure to District arrests create guarantees complaint triggers arrest or mixed-jurisdiction onto shunt cases 18 U.S.C. 3161- Trial §§ Id. Second, it surmised that side.” (the “Act”). (1988) majority ap- application might inappro- the Act’s cause the Robertson analy- parently admits affairs, priate there- interference with local lacking, at the same time coun- sis is but by exacerbating District-federal tensions. against throwing ruling with its sels out Id. We note that both of these arguments pol- reasoning. it recites additional Instead analysis, legal analysis. rest on policy Robertson. the icy preserve concerns said, policy predictions the That even In respectfully our view We dissent. Robertson the heart of the decision have given is one of cases where proven subsequent this the unfortunate ex- unsustainable the baby go removing mixed-jur- should with bathwater. perience. Rather than the Rob- not, majority court, analysis or ultimate- from New isdiction cases ertson rule seems relationship only ly relies on a view of the be- to have allowed the grow larger. Wit- the United Government and federal caseload ever tween ness of transfer cases now before District of at odds the bulk Columbia Further, us.1 it is difficult for us to com- The majority attempts to disconnect the prehend how programs plain such transfer show connection between Mills’s and Won- respect for local institutions. To the con- son’s arrests and charged the offense trary, appears it may impose that the rule against them in through District Court Court, substantial costs Superior on D.C. redefinition of the term “arrest.” Mills by burdening its docket with cases that will Wonson, told, we are really were not ultimately move to U.S. District Court. they cuffed, arrested when were read their rights, placed jail. Rather, they problems The predic- with Robertson’s only were arrested when a “Federal crimi- plain tions are majority so that the today nal offense” formally charged against was makes no extended effort to defend them. majority them. The argues further that a fact, hardly it panel opin- mentions the complaint charge cannot a “Feder- Still, ion at below, all. as we discuss al criminal offense” because it involves vio- problem fundamental with Robertson—and lations of the D.C.—not U.S.—Code. any attempt with its ruling— defend today’s remains evident in opinion. Like view, In our even assuming majori- Robertson, majority’s opinion ultimate- ty’s reading correct, of the term “arrest” is ly depends upon proposition the dubious its conclusion is not. We think a formal practical underpinning considerations District of complaint charging Columbia — sovereignty the dual applica- rationale have very violation as that substantive tion the District of Columbia. ultimately encompassed in a U.S. District charge

Court indictment—does a “Federal II. criminal offense.” The basic conduct at issue is the same. The prosecutor bringing The first half majority opinion change.2 does not identity The today involves a statutory analysis, new sovereign involved remains the United one appears replace policy pre- States; thus, sepa- there is no affront to a dictions in Looking Robertson. at 18 rate sovereign’s criminal laws. The 3161(b), U.S.C. majority notes that § difference between the two is the initial trigger the Act’s mechanism is the arrest papering by the At- decision or service of summons “in connection with torney’s citing office—a choice between charges” such likely and that the referent provision. relevant D.C. or U.S.Code To charges” for “such is the term “offense” rest on such a distinction as basis for section; “offense,” used earlier in the same ascertaining presence or absence of a course, is defined as a “Federal criminal is, believe, federal criminal offense offense” in Properly 18 U.S.C. 3172. sub- exercise in the elevation of form over read, then, clock, an arrest starts the “ stance. notes, majority only if it is ‘in connection ” charges. with’ Majority at 1188. defends its conclusion that complaint a District cannot a feder- Looking us, at the cases before there is First, arguments. al offense with two no doubt that the initial arrests were “in appellees’ ours—dis- states view—now connection with” the “Federal criminal of- regards as a the definition of “offense” ultimately brought against Mills fense[s]” offense,” fact and Wonson. “Federal criminal and the The indictments filed in Dis- 3161(b) charged charges” must re- appellee pos- trict Court each that “such Majority session with intent to fer a federal distribute the same back to offense. But, alleged Superior cocaine argument only spins Court com- 1189. us plaints and complaint indictments. circles. To state that a District point only exception general authority 1. Amici to almost a dozen cases that could Attorney ruling when and how to today; be affected the U.S. to determine our all were trans- prosecute appli- not crimes in the District —one part ferred to U.S. District Court as of a new power the D.C. cable to this case —is the of Department policy regarding drug of Justice of- Corporation pursue certain minor Counsel Brief, Appendix. fenses. See Amici 23-101(a), (b) (1989). offenses. See D.C.Code § constitution”); simply contemplated be- in the Nation- cannot a federal offense rather al provision Mutual v. Tidewater cause it cites a D.C.Code Ins. Co. Transfer Co., the for provision than a U.S.Code J.) (“In tautology, (1949) (Jackson, rea- is not re- substantive offense L.Ed. 1556 gives us soning. argument ferring The fateful instru- second the ‘States’ the doing so resusci- reasoning, amalgamated but them into the more ment which underlying problem obviously States,’ tates the fundamental ‘United the Founders panel The view the Robertson decision. speaking not of states the ab- were stract____ complaint involve a fed- that a District can decline to over- therefore We is, majority argues, “incon- eral offense the Marshall opinion the of Chief Justice rule undisputed rule sistent with the that of not a that the District Columbia is ... not the trigger arrest does III the Article of Constitu- state within clock, Trial Act’s even if the arrest is Therefore, “of- tion.”). the definition of subsequent the of a conduct is basis does as a “federal criminal offense” fense” Majori- indictment for a federal offense.” against offenses automatically exclude not ty Simply put, 1189. at Un- of District of Columbia. the Code policy back to a reliance on rationales un- Constitution, term “federal” der the sovereignty principle, derlying the dual ordinarily include rather seem would though complaints now in the of context District of Columbia. than exclude the than rather arrests. Moreover, regards the status of as explicitly has charges, this Court D.C.Code III. held suggestion appellees’ majority’s of Columbia the District [violations “disregards reading of the statute 3172’s § of the United States Code and violations as ‘Federal criminal definition ‘offense’ against single sov- are all crimes Code ...,” 1189, depends Majority offense’ States____ namely, ereign, the United implication that the District and its the District prosecuted All crimes under inherently are Code federal nature.3 are in the Code maintained of Columbia States____ however, implication, simply This Individu- name of the United wrong. Any analysis of the District and either Code of crimes under als convicted begin its instruments must Consti- custody of At- committed to are States____ plain tution. There the Founders made torney General of entity. is a As District Attorney can commit violat- General acknowledged, Robertson the District criminal of the District Columbia ors facilities____ separate assuredly “most is not sover- [a to federal correctional code I, 8, cl. eign].” 810 F.2d at 257. Article offenders of Columbia Code District our itself Constitution states peniten- properly incarcerated subject parole review be- are shall have Power ... tiaries [t]o [t]he Parole Commis- the United States Legislation exclusive in all fore exercise whatsoever, the District Columbia rather than over such ... sion Cases District Board____ The District of Co- may Parole ... become the Seat of Criminal Pro- Reform and the United States. lumbia Court Government of I, 84 No. tit. cedure Pub.L. questions Lingering on the status of (1970) (codified at D.C.Code Stat.475 may with a look at be resolved (1973)) did not vitiate seq. 11-101 et See, Supreme precedent. e.g., Hep- of the District Co- essential character Cranch) 445, (2 Ellzey, burn sovereign United as an arm of the lumbia (1804)(Marshall, C.J.) (Plaintiffs L.Ed. 332 States. “State,” alleged that District is a but Markley, 603 the Court found that “the members of Goode omitted) (Mac- (D.C.Cir.1979) (citations confederacy only are American ("The See, of Columbia e.g., Majority encompass crimes____”). purely District 1190 n. 6 back- ground assumption that 'federal offenses’ do not 1083, 100 Kinnon, J.), denied, ence applicable to “law exclusively cert. U.S. 1039, (1980).

S.Ct. 62 L.Ed.2d 768 of Columbia” using before term “Federal criminal offense.” See 18 Given the constitutional status of U.S.C. 3172. It nowhere any evidenced § Goode, holding District and our in we can- give intention to the term “federal” a accept majority’s reading claim that meaning exclude the District. charge a D.C. to a federal undisputed “inconsistent with the rule that majority might The retort that the Court trigger a state arrest does not Reform Act’s use of the word “federal” is clock____” Majority Trial Act’s at 1189- issue, general not the determinative but its We, thus, majority’s position take the District, treatment of the its Code and to be not that the District is a state but courts, point as state-like entities is. This that we should treat the District as a state apparent in majority's references to purposes particular for of this statute. (references 28 U.S.C. to “state § courts” include District of Columbia majority proposition defends this Appeals); (Supe- Court of 28 U.S.C. 1451 § settings with a discussion of other where rior Court is treated as a “state court” for has, Congress exercising plenary purposes jurisdiction); removal District, power over the chosen to treat it (“highest U.S.C. court of a State” § so, doing as a In state. focus- Appeals pur- includes the D.C. Court of for es on the treatment of the District of Co- poses Supreme jurisdiction); U.S. Court provisions lumbia Code selected (laws 28 U.S.C. 1366 District of Court Reform and Columbia applicable exclusively not include laws Criminal Procedure Act of Pub.L. No. in jurisdictional D.C. statute of Dis- (“Court Act”), 84 Stat.473 Reform Columbia). trict for the District of Court suggesting by analogy ought that we Majority at 1190. construe the term “federal” in 3172 to exclude the District of Columbia. deep There are difficulties with this ar- gument. regards majority’s As re- great begins by laying It stress on the provisions liance on the several that, single fact section of that specify Act that D.C. Court Reform Congress used the term “federal” courts, are to courts be treated as state fashion that excludes the D.C.Code. See Supreme has held that note that the Indeed, Majority Congress at 1190. did from the does it does it follow provide [n]or the United States District the District of decision treat Columbia Court for the District of is to Columbia Appeals as a state court that Court of jurisdiction retain over was to be considered a District Code [a]ny any applicable offense under law statute____ to as- We are entitled exclusively to the District of Columbia Congress legislated with sume that ... joined in the infor- which offense is care, Congress intended to and that had mation or indictment with Federal equate state stat- the District Code and offense. ..., expressly, utes it would have said so 11-502(3). D.C.Code § implica- and not left the matter to mere language interpret- of this value tion5 ing the term “federal” in the Act now provision express have been An "would is, however, before us dubious at best. Montana, easy,” Farnsworth v. crystal writing was clear in 253, 255, (1889), L.Ed. 616 9 S.Ct. provision, excluding offenses from by specific provisions in the Unit demonstrated explicit “Federal and com- concerning the District of Co offenses” with ed States Code lumbia. plete language; it made manifest its inten- States, 411 U.S. Palmore v. United plenary power tion to exercise its to over- presumptive come treatment of the Dis- sum, Congress purposes if had wished entity

trict as a federal of this instrument in the Conversely, section. in the Act now before treat as a state the Code us, us, only to have absolutely included no refer- Act now it needed before 1198 declaration, separate how- statute the existence of writ

said so. Absent such ever, ought D.C.Code, one from its imply we not this Circuit has nonetheless complete- under a of courts ruled writs un- may treatment D.C. that local courts issue Congress. ly different Act of provisions. der the U.S. or D.C. either 1130, F.2d Cogdell, v. 585 United States by point home this Cir- This was driven (D.C.Cir.1978), rev’d other Goode, (“The Dis- F.2d at 976 cuit 603 v. Bail- grounds sub nom. United States Reform and Crimi- trict of Columbia Court 394, 624, 100 62 L.Ed.2d ey, 444 U.S. S.Ct. not the nal Procedure Act ... did vitiate Moreover, grant- 575 has its essential character District [and District for the sovereign ed to the U.S. Court Dis- as an arm of the United Code] States.”). Levi, pen- authority v. trict of to hear See Milhouse 548 Columbia also 357, (D.C.Cir.1976) offenses, (“[Viola- 360 F.2d n. 6 dent criminal see D.C.Code provisions 11-502(3), of Dis- tion of the criminal state of- D.C.Code but not are considered of- And, course, trict of Columbia Code of the United States fenses. against fenses the laws the United “federal Attorney, prosecutor,” func- notwithstanding the local nature States tions in courts. This mixed treat- the D.C. system”); v. the court Congress in ment of the D.C. courts (D.C.Cir.1973) Greene, 1145, 489 1150 F.2d suggests strongly Act itself Court Reform (“Thus a the District Colum- violation of provi- majority’s to a few citation has to be an Code been held offense bia hardly dispositive of this case.4 sions is ”); against United States ... courts, As District’s so too with with the 1057, Perez, (4th v. 488 F.2d 1059 its it is treated as Code. While sometimes Cir.1974)(Court Reform Act’s treatment of instrument, a state there are other occa- repeal did D.C. courts D.C.Code's emphatically sions in it remains fed- as a status United States” “law[] within eral. inconsistent treatment This 3231). under 18 U.S.C. § suggests again Reform Act the Court itself addition, note that the status of analogy drawn to some system court under the Re- the D.C. Court useful; far from it also reinforc- sections is majori- clear as form Act itself is not as following es the the Constitution wisdom ty suggests. do re- While some sections Congress to absent a clear statement from quire these courts to be treated as state contrary. courts, not, others do not. has pendent cases— begin, To criminal example, plainly prohibi- extended the charged under both the where defendant upon injunc- of federal tion issuance has D.C.Codes—this Court treated U.S. and staying proceedings, tions state court see as a second federal violation D.C.Code 2283, proceedings. to District 28 U.S.C. § punish- by refusing multiple to enforce Realty, v. 416 Pemell Southall U.S. See offense, the same ments for substantive 1723, 4, 4, n. 94 1726 n. 40 368 S.Ct. despite Reform the enactment of the Court (1974); Family L.Ed.2d Div. Trial See, Dorsey, Act. e.g., United States Moultrie, n. 7 Lawyers v. 725 F.2d (D.C.Cir.1978) (“[I]n en- 591 F.2d (D.C.Cir.1984); Barry, Spivey acting the federal and local criminal both (D.C.Cir.1981). 1229 & n. 16 Con- codes, single sover- [Congress] acts as a gress has also failed to exclude courts eign. repeatedly has been re- Act This court Con- from those “established Congress in- quired whether may the All to determine gress” that issue writs under multiple subject a defendant to Despite tended to Writs Act. U.S.C. § disposition appear trial and consent to indicia status in the waive local 4. Other of federal located), E.g., Court see United Procedure. Rule 5- District where D.C. Rules of Criminal Ford, (7th Cir.) (if n. 5 outside of District States v. I defendant is arrested 20), denied, warrant, may application (upholding cert. pursuant Superior Court of Rule to a he Federal be removed the District under the (1980); may (Superior release than Rule Rules of Criminal Procedure rather circum through proceedings); U.S.Code offenders in certain extradition Rule detain stances). (D.C.Code may violators outside could single brought act or transaction hear cases punishments for under against provisions prisoners in the federal and D.C.Code under similar held the cor- codes.”). Lorton, facility In rectional Virginia, of criminal Columbia be- addition, discussed, cause the implicate as Goode Court D.C.Code did not eliminate the United “laws of the United States” Reform Act within the authority meaning in- of Attorney General’s 18 U.S.C. 3231. 488 F.2d 1057, con- prisoners, majority’s analysis carcerate D.C. who are 1059. Under against today, it us sidered to have committed crimes strikes that the Fourth Circuit States, and are classified for decision have to the United be reversed. Conse- seems, purposes prison- quently, every incarceration as federal it criminal of- ers. Final- fense would have to be tried in the District See D.C.Code § said, wonder, Supreme in ly, we note that Palmore the Columbia.6 That did, under the the Fourth Court itself found that even Circuit whether such a nar- Act, reading po- statutes are row Court Reform D.C.Code statute would raise problems equivalent pur- to state statutes for tential under Article III and III, Supreme poses appeal Court.5 Sixth Amendment. Article cl. 3 provides Trial all Crimes ... “[t]he sum, majority In demands more of shall be held in the State where said than it can deliver. the Court Reform Act Crimes shall have been committed.” More- providing clear lessons on the Rather than over, the Sixth Amendment states that pro- status of the D.C.Code—rather than prosecutions, all criminal the accused [i]n “background assump- viding us with a new trial, enjoy right by shall to a ... only side- tion”—the Court Reform Act impartial jury of the ... district wherein murky swamp tracks us into a of ambi- committed, the crime shall have been face, the ma- guity. On their the sections previously which district shall have been bearing jority emphasize have little law____ ascertained substance, language now before us. they suggest Congress can and has put, proclaims Simply majority the rule the like a state in some instances. treated D.C. through today potential to rumble has But, hardly proves that the jurisprudence signifi- on the District in our has created a new state-like status for the possibly ways. cant and destructive every statutory District and its Code Second, passed by Trial setting, emphatically more makes Congress, relating to a dif- a different treating in- the case for them as federal pari read purpose, ferent need not be plain congressional struments absent a di- Act. the Court Reform materia with Cf. contrary. rective to the FLRA, 495 U.S. v. Fort Stewart Schools 2043, 2048, 641, 649, 109 L.Ed.2d majority’s stat- 110 S.Ct. Two final notes about the CIR, First, (1990); v. utory analogy if the Matthews are order. (D.C.Cir.1990). Consequently, a “federal” in a stat- use of the naked word District, the Court Reform analogy between ute is sufficient to carve out bare hardly us is may laying a Act and the one now before we fear the down dispositive. Supreme Court said may rule this come As the nearly boundless Stewart, Perez, example, in regret. By way (1940), 102, 108, L.Ed. 40 found that it supra, the Fourth Circuit “[n]o ought guidance Key Doyle, plain on how we little to offer 5. We add that in (1977), the Court held interpret S.Ct. now before us. the statute are also not "statutes of that D.C.Code statutes Supreme purposes States” for the United fall un- Circuit’s decision would If the Fourth result, Key appeal. The as the dissent Court made majority’s analysis, the D.C. Rule 20 of der the that, provi- plain, particular under that likely fol- Procedure would Rules of Criminal Act, D.C.Code enact- sion of the Court Reform low; provision, violator a D.C.Code under that "mongrel S.Ct. ments are statutes.” Id. at may waive local trial outside the District at 288. This confusion under one section disposition District Court in the U.S. consent status of the Court Reform Act over where he is located. again suggests Act has D.C.Code that that to us advantages not here deci- can be of other statutes mere collation affords defendants Majority at shared instant stat- determining what the sive in defendants’’ means____ added). colleagues (emphasis Our fact [even] ute [T]he Amendment to the fact Sixth differently point phrase [used begin run- rights apparently speedy trial merely a straw in a similar statute] is ar- the accused ning from the moment the wind.” District, he is but do not when in the rested of the Court Completing its discussion tried in a by a state and later arrested Act, majority returns to where Reform that suc- They further note federal court. goals underly- policy began: the Robertson prosecutions for and federal cessive D.C. It re- sovereignty principle. ing the dual the on subject are to bar the same conduct first Mejias, the a discussion sumes with state jeopardy, successive double whereas Speedy Trial sovereignty case in the dual Majority prosecutions are not. and federal context, analogy be- suggesting an Act at 1193. before and the cases that decision tween puz- “statutory analysis” In We find this 1191-92. Majority at us. See argument here majority’s zling. The found a state Circuit Mejias, the Second grounded policy con- offense, completely on seems not a could arrest colleagues apparently Our similarity underlying in con- siderations. despite the the ought ignore the Dis- suggest we to First, on that duct, it relied reasons. for two recogni- sovereignty because trict’s unified sovereign. 552 F.2d at in the difference has resulted it in similar contexts But, al- tion of have discussed as we 441-42. unduly admit, advanta- body of law somehow the a majority the must ready, and as defendants. District geous to District sovereign. The ma- separate District is no defendants, majority seems that Columbia recognizes quickly adds jority this but believe, any procedural not need more to practical invoked a “also the Second Circuit equally protections. in the applies that consideration of immedi- context—the likelihood

present ef- focus on the legitimately can If we indictments, clogging protective federal ate have for ruling another will fects one or 1190. We Majority courts.” the federal District, might in the criminal defendants sum, asked, analogize the District to are its decision the effects also focus on we not its constitutional to a state —to discount large? If we are public have for will City of this the Federal status as ought —because analysis, indulge policy going to grave “practical consideration.” apparently full consideration least ensure a we not at purpose The policy ramifications? begin, To of all countenance this. We cannot all, to after mentioning that the Sec- behind it we think worth the defen- personal rights of holding on vindicate not rest its itself did ond Circuit important socie- dant, promote also to concern, it but only noted that practical but this tal interests: sovereignty rationale. its dual “bolster[ed]” Second, majority cites preserve necessary F.2d at to speedy trial is [A] case, Robertson, charge, which to max- proving no save means of solely inapplicable held the Act prosecution court has effect of imize the deterrent Finally, “practical” conviction, concerns. in some because and avoid saw, once cases, pretrial invoke the old period here an extended bitten, shy. during failure twice Robertson’s by the defendant freedom crimes, flee, that this Court well the lesson other may teaches he commit time policy concerns “practical” ought not allow intimidate witnesses. statutory analysis; we cannot

to drive the Criminal Advisory ABA Committee majority today wishes why the understand Speedy Tri- Trial, Relating to Standards mistake. repeat the also S. al, 1.1 See Standard (1972); 116 caption Cong., 1st Sess. suggest that the 93d goes on to majority (statement (1970) Cong.Rec. 18845-46 sovereignty “in some District’s unified Ervin, Jr.) (“We take must claim, Sam J. as Sen. against appellees’ ways militates said, steps to right make the sixth That amendment the fact the District right trial —a so denied both entity treated as a federal rather than far society as well as both the double “like” a reality jeopardy defendant —a years”) (emphasis added). after all these Sixth Amendment despite contexts — Thus, though application sovereignty bemoans of the dual prin- both arenas — provides ciple in sovereignty strongly fact suggests that unified special it pro- District’s criminal defendants should treated entity as tections, ignores here as accruing the benefits well. protections.

the D.C. from public these context, jeopardy the double rejected joinder Court has of D.C.Code majority’s concern for appar- what it and U.S.Code for the same under- ently deems the undue benefits Dis- crime, lying finding that to do so would perhaps trict citizenry defendants re- prohibition violate Fifth Amendment’s sovereignty compared ceive from unified against being tried twice for the “same ignores to those in the states several also Const, offence.” U.S. amend. V. We have plain fact the defendants and citi- found zenry enjoy parallel protec- the states is, not Supreme tion in the District. That available Court decisions ... hold- [t]he of state

they ing enjoy protection statutory both the federal procedural speedy protections.7 governments trial may prosecute a defendant acts, Even as grounded to those few states which have for the act or are rule, adopted speedy principles trial statute or no of federalism: where the laws citizenry violated, option demanding “sovereigns” has the of two are still each protection legislature. government may legitimate such from its have a rea- District, citizens having exercising power of the a state son for its of criminal government, ultimately dependent prosecution. underlying upon are But ratio- power nale is grant- pros- under the exclusive absent where a defendant I, 8, violating ed it in Article cl. 17.8 ecuted both laws both the § N.M.Stat.Ann., Ct.Rules, (Michie following 7. At states Rule least the have set time 5-604 1986). right limitations to assure the accused’s speedy to a 1981). (McKinney trial: 30.10 § N.Y.Crim.Proc.Law (1991). § N.C.Gen.Stat. 15A-701 (1990). 12.10.010 § Alaska Stat. (Anderson § Ohio Rev.Code Ann. 2945.71 (1989) (for specif- Ariz.Rev.Stat.Ann. 13-114 § 1987). A.R.S., ic Proc., 17 times see Ariz.Rules of Crim. (1991). Or.Rev.Stat. 131.105 § 8.2). Rule Pa.Cons.Stat.Ann., Crim.Proc., Rules of (see (Michie 1987) Ann. 16-96-108 § Ark.Code (1989). Rule Crim.Proc., 30.1). Ark. Rules of Rule (1981). R.I.Gen.Laws 12-13-7 § (1986). Colo.Rev.Stat. 16-5-401 § (Law. Co-op.1985). S.C.Code Ann. 17-23-90 § (West 1958). § Conn.Gen.Stat.Ann. 54-193 (1988). § S.D. Codified Laws Ann. 23A-16-3 Ann., Super.Ct.Crim.Rules, Del.Code Rule 48. (1990). Tenn.Code.Ann. 40-2-101 § (West 1985) (for spe § Fla.Stat.Ann. 907.055 (Michie 1990). Va.Code §Ann. 19.2-8 . cific times see Fla.Stat.Ann.Rules of Crim 10, Super Ann. tit. Ct.Crim. Wash.Rev.Code Proc., 3.191). Rule (West 1990). Rule 3.3 (1987) (for specific Idaho Code 19-106 § (1989). W.Va.Code 62-3-21 § 7(f), 48). times Crim.Rules see Idaho 1985). (West Wis.Stat.Ann. 971.10 38, § (Smith-Hurd Ill.Ann.Stat. ch. 103-5 ¶ 1980). majority suggests the District is "free” 8. The Ann., Crim.Proc., Ind.Code Rules of Rule 4 adopt powers speedy under home rule (Burns 1991). Majority at n. 9. As is familiar trial rules. (West 1979). Iowa Code Ann. 802.1-802.9 §§ however, learning, retained has “ulti- (1988). § Kan.Crim.Proc.Code Ann. 22-3402 District, legislative authority,” over the (West 1981). mate Crim.Proc.Ann. art. 578 La.Code l-201(a), 277, right D.C.Code and reserved (West § § Ann. ch. Mass.Gen.Laws 1991). legislate affirmatively District. for the D.C.Code Further, adopted (1957). act 1-206. § § Md.Ann.Code art. Congress; (1972). government be submitted to must Ann. § Miss.Code 99-1-5 (Vernon may nullify 1987). majority houses mea- both § Mo.Ann.Stat. 545.890 (1987). days. thirty D.C.Code 1-§ sure within 233(c). calendar § Neb.Rev.Stat. (1991). Nev.Rev.Stat. 178.556 congressional Majority intent. at 1193. the District of Colum- United States True, formally postdated MacDonald from one itself bia, emanate since the laws reasoning focusing on the sovereign. but its — sovereign surely cannot have relevant Alston, 531, 537 — majority surprise. As the itself come as a denied, cert. (D.C.Cir.1979), 445 U.S. 31n. notes, ap- sovereign-based analysis was (1980). 100 S.Ct. jeopardy context well plied in the double gives us no majority reasons — Act, providing a passage of the before why similar “practical considerations” — strong potential applicabili- of its indication of the treatment Majority at ty speedy in the trial context. inappropriate. is somehow context Trial Act Israel, 1193. LaFave & whom context, the ma- Amendment In the Sixth cites, MacDonald suggested the also even that, given va- jority apparently admits Mac- dicta, without direct reference sovereignty- Supreme Court’s lidity Donald, reasoning instead from the double States v. Mac- analysis in based jeopardy area in their 1984 edition of Crim- Donald, 10 n. Procedure. W. LaFave & inal J. Israel, (1982) (“Of n. 71 L.Ed.2d 18.1 at 401 Criminal Procedure course, by one sov- arrest or indictment Further, majority itself Con- cause the trial ereign would not knowledge practical con- gress with possi- engaged as to guarantees to become sovereignty underpinning the dual cerns subsequent indictments another sov- ble Act; passed conse- principle when it likely is not ereign”), a state arrest are at a to understand quently, we loss guarantees Amendment’s trigger the Sixth Congress equally aware why would not be prosecution, while a vis-a-vis a later federal unique status under the of the District’s is. District arrest in our and caselaw. Constitution however, If, appropriately District is the attempts explain majority The next to entity as a federal for Sixth treated give meaning to the Act’s failure to real analysis, why is it not under Amendment rights implementation of Amendment Sixth question particular is of the Act? This legislative history focus- snippet a of with Congress, recognizing importance because application Superior to ing on the Act’s balancing to determine the test used sure, Majority at 1193. To be Con- Court. “provides Amendment no Sixth violations apply not to gress intended that the Act the guidance to either the defendant or entirely Superior in D.C. pursued cases justice system,” passed the Act criminal However, suggest, this does not as Court. “give meaning to real explicitly th[e] infers, Attorney that the U.S. majority the right.” H.R.Rep. No. Amendment Sixth he moves a by not abide the Act when need reprinted in Cong., 93d 2d Sess. Superior to U.S. District case from D.C. (emphasis 1974 U.S.C.C.A.N. Court. added). our Under the view of Act that today, absolutely colleagues adopt it has Re- Turning directly to the Committee in no meaning mixed-jurisdiction cases colleagues rely, our port upon which by parking a case

the District of Columbia: acknowledge Congress did discuss the Court, kept Superior the Act can be from shopping” by possibility of “forum the U.S. indefinitely. Ironically, under the applying and Attorney to avoid the Act’s restrictions view, the Amendment it- majority’s Sixth of the local concluded that the benefits more real for transferred de- self has bite respect for local courts exemption as —such fendants than the Act does. justified the political risk. and institutions — 49, reprinted in H.R.Rep. No. 93-1508 at majority attempts justify its de- Any changes at 7441. analy- Amendment 1974 U.S.C.C.A.N. parture from the Sixth MacDonald, needed, said, would might be by claiming first sis Id. legislative to future action. recognized sovereignty test for be left However, context, the reference to analysis, post-dated the read Sixth Amendment and, thus, shopping appears directed at informed forum Act could not have Attorney’s opting legislative court language U.S. out with the Act’s his- entirely proceeding exclusively in local tory. court, rather transferring than cases The term “judge” in 3172 is defined as from local re- into federal court without only including judges U.S. District Court gard to the time limits. Act’s Avoidance magistrates. There is no mention

the former sort would not harm local insti- Superior fact, judges. of D.C. Court In disrespect. tutions evidence as originally proposed definition did include manifestly same is most true here but, Superior judges Court al- reasons experience Robertson since demonstrates.9 above, changed luded to course. short, majority’s failure offer H.R.Rep. 47, reprinted No. 93-1508 at legitimate why application reason Thus, 1974 U.S.C.C.A.N. at 7439-40. the Act from application should differ that, seems natural to conclude while the Sixth Amendment emblematic violation is a federal D.C.Code criminal of- provide adequate legal its failure to reason- fense, such cognizable violations are ing exceptional for its treatment Act under the when transferred to District and, thus, preservation for its of Court. Merely shifting the Robertson rule. focus however, Again, the mere fact that filing from the arrest of formal criminal defendant must be U.S. District charges will not work. Reliance on anoth- protections receive the Act’s does er, ambiguous statutory unrelated and charge not mean that D.C. somehow poli- Replacing structure must fail. flawed A has irrelevant. federal offense still been cy predictions new do. with ones cannot and, complaint charged as the ruling contrary effect a Concern argues, the court- might have on District defendants is un- —not application. house—initiates the Act’s This helpful. Meager attempts distinguish- reading supported by Act is ing jeopardy double and Sixth Amendment of cases transferred between treatment unavailing. precedent are It is our view Assuming districts. that, if, demonstrating after tries at two pending, charge despite initial remain inapplicability of the Act to the District — Columbia, change opera- in courts—remains is the best can this this Court muster, purposes moment for Act. See it is time to throw tive the Robertson Colombo, 19, v. 852 F.2d 23- along reasoning. out States rule with its United Cir.1988). (1st government itself point argument. at oral also conceded this IV. that, sum, though a it is view In our juncture, At this clear we wish to make charge may a feder- Code violation District consequences statutory of our own offense, only applies in District al Act analysis. Simply recognizing the unified Court, Superior as Consequently, it, Court. sovereignty and, of the District Congress, is from the wish excluded was charge that a fact D.C.Code can constitute But, when such the Act’s strictures. a “Federal criminal offense” does not mean complaint in charges initially a D.C. raised every charge triggers D.C.Code Court, can- so, brought to the Act protections. Act’s The reason this is are avoided, however, application relates nothing and its has to with the Court not be charge. concerns, Act to the D.C. policy Reform or but rather back contemplated by Congress the one 9. seems to admit that the Commit- the one something Report directly point pur- Court—share tee is not for its raised before this however, view, legislative poses, suggests In the reference but that where the common. our shopping Report no history preserve the House has to forum reveals that meant slightly bearing special type of at issue legislative on the evasion for future action a similar but Court, Further, congressional problem directive on different than the one before the here. give application Act—to “real mean- we should leave this too for to handle. not, right Majority ing” Sixth at This sense when Amendment 1193. make —could view, guidance. provide problems— that the clearer there is some evidence two in our V. this the test the First case. Consider Cir- applies. Though noting cuit it insufficient One other facet of this case is worth that state and federal arise from if mention. Even we that the Dis- assume incident, the same the First Circuit finds trict is to be treated as a under the state triggered the Sixth Amendment when the charge it strikes us that a District is charge way does not differ in “in nevertheless connection with” a federal charge from the state and federal authori- charge underlying when basis two early ties were involved the case from an complaints precisely the same. Marler, stage. Applying 756 F.2d at interpreting sovereignty prin the dual criteria, rule, way these there is no if this Amendment, ciple purposes of the Sixth adopted, would fail to control the cases suggested some have courts even a perhaps every charge before us and may state arrest start the Amendment’s directly translated into U.S.Code indict- ticking subsequent clock for a very ment. At the least the owes charge underlying the basis when the two explanation why rejects more it is, heart, prosecutions See, the same. important recognized by jurisdic- rule other Marler, e.g., United States v. 756 F.2d 206 tions the Sixth Amendment context. (1st Cir.1985); Cabral, United States v. (1st Cir.1973); 475 F.2d 715 VI. Nixon, 306, (5th Cir.) (Sixth v. 634 F.2d excep The District of Columbia “is an Amendment clock runs time of initial community tional ... under the established arrest “when the next indictment is for Constitution as seat of National precisely the same offense and same trans Government.” District Columbia v. action”) Cabral), denied, (citing cert. 441, 452, 303, Murphy, 314 U.S. 62 S.Ct. 120, U.S. 102 S.Ct. 70 L.Ed.2d 103 (1941). lasting 86 L.Ed. 329 It is “as (1981); Avalos, United States v. 541 F.2d as the from States which was carved or (5th Cir.1976) (if 1111 n. 20 permanent capital the union whose O'Donoghue it became.” arrest for same later tried in feder States, 289 United court, attaches); al Sixth Amendment 516, 538, 53 S.Ct. 77 L.Ed. States, Gravitt (1933). either the “Unlike (5th Cir.1975) (“For n. purposes Territories, truly generis the District is sui determining right when the trial governmental in our structure.” District attaches, critical”) the basis for arrest Carter, 418, 432, Columbia v. (citing Cabral); United States v. De Ti 602, 610, enne, (7th Cir.1972) (Sixth right Bearing special Amendment attaches at time of District’s status mind, agree state arrest if “really federal indictment we cannot with the that, only gild[s] charge underlying statutory in the absence of a clear [defen initial arrest and the different accu mandate to treat a District Code violation dant’s] violation, satorial dates between them are not reason are free craft denied, ably explicable.”), liberty cert. 410 U.S. such a rule. “We are not at to seek 974, 977, ingenious analytical S.Ct. instruments” to avoid (1973); Ming giving congressional United States v. Lai enactment the broad Cf. Tanu, (2d Cir.1978)(leaving scope origins may require. language open question Price, of whether Sixth Amend United States v. 1152, 1160, right

ment attaches on state if L.Ed.2d arrest prosecuted later in federal Though may signifi- this case not have a court). impact interpretation on the of the Act cant beyond While decided the Sixth Amendment the District of Columbia’s bound- context, aries, application dual sover- it constitutes a substantial affront eignty principle interpret- shaped seems useful in the caselaw to fit the Constitution’s ing design, plainly the term “in connection with” under these few demarcates Further, appears pertinent uniquely space. the Act. square miles as a above, set forth this reason and those For

we dissent. SCHILLER, Appellant,

Arthur M. LABOR RELATIONS

NATIONAL

BOARD, al., Appellees. et

No. 91-5058. Appeals,

United States Court

District of Columbia Circuit. 7, 1991.

Argued Nov. May

Decided

Case Details

Case Name: United States v. Albert E. Mills. United States of America v. Kenneth B. Wonson

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 29, 1992

Citation: 964 F.2d 1186

Docket Number: 90-3007, 90-3008

Court Abbreviation: D.C. Cir.