*1 UNITED of America STATES HOLT, Appellant.
Ronald
No. 23928.
United States Appeals, Court District of Columbia Circuit.
Argued Jan. 28, 1971.
Decided June Certiorari Denied Nov. Mr. Thompson, Noel Washington, H. See S.Ct. 292. (appointed by D. C. court) ap- pellant. Mr. Clarke, John Jr., O’B. Asst. U. S.
Atty., with whom Messrs. Thomas A. Flannery, Atty., Terry, U. S. and John A. Atty., Asst. U. S. brief, were on the appellee. FAHY, Before Judge, Senior Circuit MacKINNON, LEVENTHAL and Judges. Circuit PER CURIAM: Judgment is affirmed. Judge Fahy Judge agree Leventhal principles under pertinent claim of speedy trial, denial of has shown possibility a reasonable Leventhal, Judge, opin- Circuit filed significant prejudice; appellant is not ion. foreclosed failure to raise the issue sep- Judge, filed MacKinnon, Circuit time; at an earlier and the Government opinion. arate provided has not justification conclusive Judge, dis- Fahy, Circuit Senior delay by advancing later-filed indict- opinion. and filed sented ments for earlier trial.
Judge votes affirm Leventhal prosecution witness indication that a first set became available when case was granted postponement after unavailable examination; defendant for mental countervailing provides consideration other, leading that trial of to conclusion later-filed cases first is consistent justice does administration rights. violate constitutional Judge votes to affirm MacKinnon primar- caused basis ily own conduct defendant’s major trials, the absence seven showing prejudice, substantial responsibility direct defendant’s delay, minimum of 220 *2 trial, speedy delay to what extent the implicit the consent right speedy in by to a trial a defendant’s defend- is indicated trial order that by examination, particular the case is affected mental for ant’s motions deciding bring on other Government’s continuance. severance and for trial earlier. cases ground Judge Fahy dissents justi- delay examined the considera We protracted that the surrounding right right tions the to a the defendant’s fied and violates States, Hedgepeth trial United v. speedy trial. U.S.App.D.C. 291, 364 F.2d Judge: LEVENTHAL, Circuit (1966) [Hedgepeth the Time is /]. factor; longer important the most tra- this ease are about While facts delay arrest and trial Judge exhaustively Mac- versed the burden on the Government heavier opinion, my view that Kinnon’s arguing that will be The case facts: the critical these are abridged. trial not been has committed offense involves prima facie merit if defense has claim 1, 1967, filed an indictment lapse and trial between arrest originally set The case was longer year. U.S.App.D.C. than one for October Harling 686; 364 F.2d at of defendant's postponed then because States, U.S.App.D.C. United mental examination. motion for a (1968), denied, F.2d cert. early December November L.Ed.2d 711 U.S. 89 S.Ct. against ap- were filed other indictments intervening (1969). reviewing On appel- pellant. On December events, however, the court must also lant’s motion to set trial con balance the other factors be granted. January But delay, sidered: reasons for the was not until diligence court, prosecutor, vel non of On to stand trial. was found likelihood, counsel, and defense “and the case was scheduled possibility, or at least reasonable However, when that prejudiced defendant has the de day arrived, appointed the case was lay.” decertified from the calendar request. the Government’s Prejudice Possibility Issue of of point after this What record shows recognized It must diligent fairly job by the can be called a delay is caused the time bringing prosecutor on the other cases cases, possi- trial of other there is less starting with bility “prejudice person” than in mistrial. But ended case, ap- in other In the instant cases. doing get so he let oldest case older. pellant’s stemmed from his detention appear the defendant ob- does charges. arrests on other And the anx- jected prosecu- the order in which iety overhanging prosecutions brought But that tor the cases to trial. long necessarily him, then with for as prosecu- order of trial was within pending dispose as it took all tor’s discretion. He has the burden prosecutions. justifying of seventeen months remains, however, There the second bringing case on for trial. aspect protection provided of the dual Application Speedy I. Trial Prin- Amendment, protection Sixth ciples Delay Due to Prose- Where Is against “prejudice to a de defendant’s Arising Subsequently cution Cases States, Hedgepeth fense.” 22, 365 F.2d must first To focus on case we [Hedgepeth general applicable (1966) principles II]. consider [Hedge U.S.App.D.C. 291, Hedgepeth v. United peth I]. point ways It is part possibility preju- at this that I There another Judge opinion assuming dice even MacKinnon. His if the instant disposi states tive; “alone is not case were tried first it would have resulting might prej there must sulted be some in conviction. Defendant infra.) (p. 1118, disposi- udice.” But the rule have fared better terms require promptly tion does not if he had more received that defendant show (ulti- prejudice; above, the Youth Act as stated defendant Corrections sentence *3 mately case). only possibil must There show a “reasonable this ordered ity” might prejudiced that his have been a deci- defense has been well reasoned by delay.2 by prosecutor nolle, sion to or at up, least hold the other more serious case, possibility prejudice of prosecutions, perhaps with defense arises from the combination of stipulation, until it was seen at least difficulty establishing of the defense ef- whether the YCA rehabilitation was by version of the clothes worn defend- that com- fective. The fact ant on the critical date of the offense. mitted other crimes in 1967 before The defendant that testified he could opportunity had the for YCA rehabilita- pants wearing remember the necessarily tion would not he could mean March 2 pants but not the he was wear- proper not be reformed with treatment. ing on March He remembers the It cannot rea- that there no said pants on March 2 because on that date possibility prejudice sonable of to the the officer told at him No. 1 Precinct: prompt defense from this denial of “Yeah, you got still pants.” on the same 3 trial.2 (Tr. 175). transcript continues: Q: you “Didn’t that cause to think back Objection To Failure Raise Defense you wearing to what pre- had been running Judge day? through Well, Another thread vious A: it me didn’t cause signifi- nothing.” opinion do MacKinnon’s to ascribes cance not to the fact defendant did might say put One defendant objection being raise an to tried last unsophis- “notice.” But it point Crim. He 471-67. asserts at one defendant, plunged ticated into a situa- ob- failure to raise this defendant’s perhaps paralyzing anxiety, tion of who jection was a “tactical decision.” charged preparing the defense. counsel, That is the task of his she The record con- does establish this may not apprised have been of the of- All defense counsel clusion. said colloquy ficer’s early possibility If conferences. because of promptly trial had been held might she Government she dismiss the case would have had the benefit transcript of more did not move for a by recent recall hearing. preliminary witnesses other than de- But noth- there is fendant, perhaps a refreshment of to indicate that she failed make a recollection part of defendant. demand for this case because Hedgepeth I, supra, U.S.App.D.C. defense”) ; States, Coleman v. United 687; Hedgepeth U.S.App.D.C. 364 F.2d at v. 442 F.2d States, U.S.App.D.C. 19, 21, (decided 8, 1971) (At United (1966) ; Harling 365 F.2d v. “While we are F.2d 156: satis- States, U.S.App.D.C. testimony United 330, fied that was sufficient [the] (1968), jury, 401 F.2d cert. de to send this to the we are nied, sanguine 393 U.S. 89 S.Ct. so is the Government (“Even (1969) slight guilt unequivocally L.Ed.2d so demonstrates showing possible prejudice, prejudice inflamed that no due occasion unjustified long delay, lengthy arisen.”) fact of might have entitled defendant to relief jeopardy.”) ; Chapman California, from continued Hinton v. 386 U.S. (1967) ; S.Ct. L.Ed.2d 705 Har (1969) rington California, (“significant possibility prejudice S.Ct. 23 L.Ed.2d
Hll pre-trial thought of denial of a enhance the would she motion to dismissal Govern- dismiss.6 likelihood ment. jurisdiction peculiarly ap- In our it is sought Indeed, and the court if she propriate to to the hold the Government speedy trial of this case had ordered a obligation arranging com- spring the fact in the case, At the time events (on Germany plainant had moved adopted the District a rule Court had very 17, 1967) might well December virtually prosecutor left it to case, to nolle this led determine which criminal cases arrangements rather make than bring up.7 and in what order them transportation the victim from Ger- given authority prosecutor That many, expect prevail responsibility. entailed a commensurate pending. then other criminal On December *4 however, prin- important, More is January moved to set trial for jurisdiction, ciple accepted that in this granted. 1968. The This motion was delay run where has at least in a case case later trial on was set for year, require do a we for more than 4, 1968. At that time the case was de- a make a demand for that the defendant ready certified from at calendar hold that We burden request. nothing Government’s is There moving promptly is on Govern- the record on that the defendant to show ment, in- is no “waiver” to be and that any way joining request, was in in this by ferred lack of demand defense from pleased by even Defense coun- it. See, g., Coleman e. counsel. pre- sel noted that did not order the she States, U.S.App.D.C. F.2d liminary hearing transcript earlier be- 8, 1971). (decided strong “there cause a indication that approach recommended This is the go the case would not to trial.”8 But Project Association the American Bar indication, that was the Government’s for on Minimum Standards consequence merely accepted and she recently Justice,4 report with cited gauged her time work and accord- approval in another connection Chief ingly. remotely It cannot be stretched Burger.5 Commentary Justice The intentional, into an indication of an are *5 bearing totality it does some the support request of its case be of The that de- circumstances. fact is decertified from the If calendar. during fendant’s actual incarceration long the Government had informed the trial delay of after March judge complaining of removal of charges due to other not related Germany, unlikely highly witness to it is important this case. are And while there judge that the would ruled the re- assuring a trial even reasons situation, quest unreasonable. In this incarcerated, when the defendant is not good where the Government has reason inapplicable, some of these are either or only for a continuance can be offset significant, less when the Government showing prej- if defendant a makes of actually proceeding is trials. other anticipated prejudice. udice or Thus, picture do not a we have the of The matter before us is difficult be- waiting around, who defendant is un- having Government, cause the control of brought certain of whether he will be calendar, arranged postponement, a brought being trial. This defendant was having request without to make a And do we not have the fear postponement. considering I am what Government, pur- whether would have been the result if the Govern- pose by negligence, has more or less ment had power not had the to control plight particular shoved aside the of a presented the calendar a such very defendant. The Government was request. circumstances, But these must aware of defendant this complaining with transfer wit-
prosecuting vigorously. delay ness possibility There still the reasonable constituting defendant cause on the some prejudice delay from the in this case. part, possibility Government’s and the partial As a offset I should note that the case could be rendered academic I indicating read the record was by willingness a prosse nolle likely prejudice that no in fact occurred. pending of a event conviction in another decisive, This is still the lack unless prosecution, it seems consonant with the prejudice is so manifest call for as to justice administration to defer the Chapman-Harrington Rule. trial, notwithstanding possibility gives prejudice, The crucial provides element that me unless defense complexion requiring rejec- this case a preju- some indication likelihood MacKINNON, Judge: being justification for Circuit There some dice. Government, part of the on the charged by Appellant a three showing part the defense some (1) count with indictment with assault requirement. is not unreasonable rape, (2) intent to commit assault with analysis dangerous carrying Ordinarily weapon (3) lead me would this pistol appeal to focus on to a remand order without a license. On complains principally reason he he was assess both the Government’s March, sought postponement denied constitutional his possible thirty and like- and the extent of an interval of ly prejudice The fact that arrest his trial on such to defendant. Appellant reason court in the on bail erred offenses. was released assigned rejecting speedy trial other arrested on numerous represented reason all contention does not mean another cases and was offenses through- may in by not be I am content counsel available. the same stay my appraisal fully explained long own case to out. likely trial, by the that the would be assessed balance normal wait before against defendant, re- and feel that a time for mental examination proceeding require requested by appellant, by mand a further would the time judi- quired use of ciary limited resources of times in the six appropriate or neces- more District on other that were sary serious, by in the case. circumstances of this the time involved in con- sidering necessary motions, by continu- insisting my on a reason for granted request ances by remand is this: After placed this case a trial order which sentenced under the Youth Corrections at the bottom which order ease, Act for the he re- offense oppose. con- did not affirm the would May, subseqent ceived sentence in grounds. on such victions 1970, for another conviction unrelated *6 case, which calls for detention I prison, the adult moved to prison.9 the adult allegedly charged was here The offense 1, Appellant any sense, March 1967. committed on real he is not now serv- indict- next a sentence under the Youth Correc- was arrested Act, requires tions returned which that committed ment was arraigned, youth his segregated promptly Appellant offenders “shall be appearance attorney from other her entered offenders.” 18 U.S.C. 5011. § The appears Government memorandum the Government further all that waiting be appellant’s case to advises since accused were adult sen-- order. longer sentence, in its normal youth for trial tence reached than his free However, appellant was by his case would while be considered indictment, Sep- instant D.C. Parole Board not to call for on the use bail aon 28, arrested its Youth Parole its 1967 Service section and tember aggravated supervision, by more of other would parole handled number regular charges involving robberies adult either section. Since every aspect was subse- for which detention sex assaults Consequently on Octo- pursuant quently indicted. conviction of another crime, 19, appellant’s counsel moved dispose 1967, appropriate I think it ber examination, us, him mental commit for a record before completed until appraisal probabilities, fair was not of the him to be 20, court found require rather when the than to Ac- 1968 remand. foregoing cordingly voting competent to stand am to affirm the con- year with- explain viction. one events January 25, supplemental re- at our As revealed Government memorandum filed quest. 1114 attaching charges, by that were continuances culpability some out necessary either which were
Government. by appellant quested or were days were and 14 The next 18 months real opposed up him.1 Thus on other criminal used six
APPENDIX Event Date chronological summary progress following set of the case as is a
forth in the brief: _________Assault committed. 1967 * _________Appellant arrested. March April 1967 (Criminal _____Indictment No. instant case filed 1967 471-67). ____________Arraignment; plea guilty. May 1967 Dwyer appearance. ___________Attorney 8,May F. Jean enters 1967 ^_______Appellant for mental examination. moves October date; ________Case had been set for trial on this decertified October calendar. ______Indictment No. filed Criminal 1409-67. No. 1447-67. November ______Indictment filed in Criminal Criminal November December ______Indictment No. filed 1506-67. _____Appellant moves to set No. Criminal 471-67 December 5, 1968; January granted. trial; ______Appellant sched- February 20, found stand ease uled __________Case decertified from calendar at Government’s request. 1506-67; jury agree ______Trial unable to 23-26, in Criminal No. verdict; mistrial. __________Appellant No. to sever counts of Criminal moves 1409-67. May __________Appellant moves to dismiss indictment Criminal 1447-67; granted. No. __________Court grants No. severance motion Criminal 1409- 67; into three severed cases. counts __________Government moves to have court reconsider order June 1447-67; motion denied. Criminal July 10, jointly __________Appellant move to continue and Government September 4. ___Trial 1409-67; jury agree in Criminal No. unable verdict; mistrial. *7 3-9, ______Trial 1409-67; guilty October 1968 not in No. verdict Criminal on 5 6. counts and 17, ______Appellant October 1968 in No. continue Criminal moves to 18, until November 1968. 1506-67 26, _____Part .transcript April November 1968 No. mistrial Criminal 1506-67 filed. 13, ______Remainder transcript April December 1968 mistrial Crim- filed. inal No. 1506-67 ____Trial January 15-29, 1506-67; guilty. 1969 verdict not in Criminal No. 7, _______Work February granted 1969 No. release Criminal 471-67. ______Criminal February called; given No. 471-67 ready days or case to dismissed. be 17-19, ______Trial 1409-67; guilty No. verdict not Criminal on counts and April __________Criminal placed and set calendar No. 471-67 April 29; appellant requested March for trial on transcript. preliminary hearing __________Criminal September No. continued until 471-67 request transcript to obtain hearing. preliminary 7,May ___________Appellant requests No. 1409- continuance in Criminal 2,1969. until June September question is whether was The Second here Trial — rights 5-10, trials when denied was tried seven times in 18 In the meantime trial court had days. and 14 granted a motion to the indict- dismiss ment Criminal and the No. 1447-67 April 23-26, 1968 The First Trial — Government had reconsidera- tion of such order. This denied specific events To be more to the July 10, June 1968 and then on period: Appellant's motion jointly and the Government the case of December 1967 to moved to continue the January trial on set for (apparently 1409-67 to be No. case granted, place take but the trial did next) September tried until February it was not because tried This over from five com- 1968 that he was determined to be 10th, 5th to the petent then to stand trial. The case was jury resulted in mistrial when 1968 but set agree. unable to date it from was decertified way the trial calendar make 3-9, The Third Trial —October rape, (robbery, of Criminal 1506-67 No. (No. 1409-67) promptly The case rape, as- intent assault with to commit 9th, retried from October 3rd to the dangerous weapon) which sault Follow- involved more serious offenses. ing the trial on Criminal appel- 1506-67 January The Fourth Trial — separate 26,1968 lant moved 15-29, 1969 trials of the in Criminal Next, appellant on October moved charg- 1409-67 which involved counts six in Criminal 1968 to continue dangerous weapon assault with a 18, 1968. until November No. 1506-67 (gun) robbery. On However, transcript prior trial granted motion. the court severance 13, 1968 until December filed require three of this result accordingly not occur retrial did and the separate de- further to cause e., month, i. middle the next lay. however, Appellant, entitled 29th, January 15th separately no have the tried cases Following guilty in the verdict against appellant is assessed blame 1506-67, appel- retrial of Criminal No. this circumstance the Government February given lant on 1969 was materially to the which contributed 471-67 work release Criminal No. (the reaching case) (the case was Criminal No. instant called on case). instant *8 jointly __________Appellant move continu- and Government
n June until June 1969. in No. 1409-67 ance Criminal charges rape __________Appellant while on work arrested on June 17, 1969). (see June release letter dated __________Work release revoked. June 1409-67 __________Government No. to continue July moves Criminal July 24,1969. until 1409-67; guilty ________Trial 28-29, verdict July in Criminal No. 2. on counts ________Indictment 1288-69. August No. filed Criminal ____Trial September 3-5, No. 471-67. Criminal * appel- Appellant’s alibi 1967 and to his witness talked counsel 135). (Tr. the after offense lant’s mother two or three object. given thirty days con- It should be noted Government was beyond April presence they of the trial date assure the tinuance find out if com- complaining 29th plaining for the created so the difficulties witness ready tem- placed as she was then calendar witness could be porarily living Germany dismissing ex- April pain under pecting the birth of her child case.2 second
July. Appellant’s trial stated counsel only requested that she had a continu- 17-19,1969 The Trial—March Fifth ance 15th and so the additional appellant 17-19, 1969, During March may continuance due H09-67, and No. tried on complaining incapacity witness. gave satis- apparently the Government complaining factory assurances July 28-29, Sixth Trial— produced because would be witness important It also note that the placed No. Criminal ready 471-67 negligent Government was 1969 and calendar on intervening Appellant May period. apparent for trial on 29. set granted 1969 had and been that the Government was in Criminal 1409-67 continuance No. time for trial in Criminal con- until This trial was June to trial came but the case never request tinued at the Government’s days later be- nineteen four Meantime, July was held on granted April 30 cause the court on on June while was out states) appellant’s (so order motion release, jail on work he was arrested Sep- case until continue instant alleged rape re- on another work and his permit him in order tember lease terminated.5 pre- transcript the 1967 to obtain liminary hearing.3 Appellant’s counsel The Seventh Trial— requested this earlier because had not 3-5, 1969 expected way results half she bring Sep- Finally, a dis- end was about reached on in the other charges tember in Criminal 1969 when missal of the by began granting of this motion instant assault 471-67 The rape, fully with intent to commit not be- accounts fore time to September. was made he had moved The motion first did not failure indictment dismissed for but the Government Judge there filed FURTHER ORDERED order Gesell’s granted provided: be no further continuances shall (Emphasis added). party. gives to either Unless the written “Attorney signed assurance one month that The order was within produce complaining the “Assistant for the Defendant” can witness Attorney.” April, will this case be dis- States missed. page 9, 4. See infra. If there written is such assurance put then the case will revoking order court work April. calendar lease on June recited filed following: 3. The court’s order filed provided: appearing It further the defend- comply This matter came before the Court ant the condi- failed a con- his release in tions of defendant’s tinuance the trial date now set for at 9:15 A.M. arrested on June April 29, 1969, rape charge attempted and the Government on a rob- having objection motion, bery, no to the said occurred on sub- *9 hereby sequent it is this 28 to his release at A.M. from (CGS ORDERED that the case shall be the Release Work Center 20779- September 3, 1969, 69-0). continued to and is
H17
grant
trial,
always
speedy
prompt
a
available
to
of the Government
trial,
prejudice
the
denied and
demonstrated
and
The motion was
trial.
exclusively
for the benefit
was convicted.
deciding,
the
In
state.
so
Chief Justice
Burger
remarked
the
Eighth
Court:
Ninth Trials—
The
February-March,
right
speedy
a
to a
is not
right
theoretical or
one
abstract
judicial
notice of Criminal
also take
reality
rooted
hard
on the need
24,403,
Ronald
Case No.
United States v.
charges promptly exposed.
If the
Holt,
pending appeal
court.
a
in this
prosecution
the
case for the
calls on
transcript
The docket entries
the
charges
accused
meet
rather
than
appellant, af-
in that
disclose that
case
prosecu-
rest on the infirmities of the
began
ter a
mistrial
right,
case,
tion’s
as is the defendant’s
beginning
again,
tried
the time to meet
them is when the
and convicted of first
is
claims have never
Stale
fresh.
degree burglary,
sodomy and assault
law,
been favored
and far less
rape.
with intent
to commit
Although
great
so in
cases.
criminal
many
persons
put
accused
seek to
off
II
long
possible,
as
as
the confrontation
charged
persons
right
inquiry
prompt
All
criminal of-
with
to a
into
guaranteed
fenses
are
the Sixth
criminal
fundamental
authority
duty
charging
Amendment
Constitution
U.S.
of the
“ * * *
right
they
enjoy
provide
prompt
shall
This is
* * *
speedy
when,
brought
sharply
trial.”
The Su-
focus
into
early
preme
here,
presses
Court has
the accused
for an
stated:
confrontation with
accusers
guarantee
important
This
is an
safe-
dockets,
with
State. Crowded
guard
oppressive
prevent
undue
judges
lawyers,
and other
lack of
prior
mini-
incarceration
delays in-
factors
doubt make some
no
accompany-
anxiety and concern
mize
however,
Here,
no valid rea-
evitable.
ing public
accusation and to limit
delay existed;
son for the
was ex-
long delay
possibilities
im-
will
clusively
the convenience
pair
ability
de-
of an accused to
On
record
with
State.
fend himself.
consequent prejudice is
its
intolerable
Ewell,
United
v.
383 U.S.
States
impermissible
as a matter of fact and
(1966).
S.Ct.
L.Ed.2d 627
as a matter of law.
right
speedy
neces-
of a
90 S.Ct.
1568-
398 U.S.
sarily
relative.
It
is consistent
1569.6
upon
delays
depends
circum-
rights
a defend-
It secures
stances.
previously set forth
We have also
rights
preclude
ant.
does
general principles
which courts
public justice.
constitutional
determine whether
right
speedy
Haubert,
trial has
Beavers v.
198 U.S.
of an accused
(1905).
S.Ct.
L.Ed. 950
been denied:
Florida,
Dickey
question
there
v.
whether
has
398 U.S.
[T]he
(1970),
5. Ct.
Total Third, any case could other case. contends this for trial The dissent 12. May 15, But had three earlier occa- been tried on just First, obtained a continu- But the asked for and sions. get ready parties until June instead to ance of Criminal No. 1409-67 elected extended until June later which No. 1506-67 Criminal parties 26th, were indicates This 23rd to tried treating as the Second, No. 1409-67 between nothing July parties for trial there 1968. But the were next case they get occupied during to indicate could Thus, with motions the record ready dismiss, try any reconsider and to sever. other case. apparent these record does not indicate is also when suggested the dis- was not dates motions were decided alternative practical, regardless July 10, as to how sent were practical for trial because painted they may now obtained continuance he sup- does not Thus the record dissent. port of Criminal feasibility nothing reconstructed in the record 1968. There appellant’s trial calendar. counsel was to indicate tainly III under such claim circumstances his personally “just that he can’t It is also concluded that suspect. Blunt remember” See prejudicied by the order notwithstanding tried, his the cases were denied, (1968), cert. (1) prejudiced because claim that he was 21 L.Ed.2d U.S. S.Ct. stated and his mother both his friend they he not remember what possible prejudice, the matter On assault, wearing night alleged significant is also coun- (2) grown and his because he had stated at trial: sel changed appearance in the interim always and the of this arrest We have known where They Appellant case. admitted at defense witnesses were. they places follow- from the when he was arrested on the moved never living placed on in March of 1967. he had offense he notice that the detectives claimed aggravation severity Given wearing pants” “the same necessary these offenses was numerous charged complainant arrested that the elapse period of time a considerable wearing the as- when he committed disposed they could all be before (Tr. 175). alerted to sault He was thus and it had to be last One placed significance the Government proper No. 471-67 to consider is not *14 they clothes on the contended only though on the dock- the easily wearing have acted and he could the faced with was et. Government may any impress he have witnesses trying necessity appellant all the of contrary testify had, to the who could prob- that the and it is essential point, He such facts. remember By light.13 so in that lem be viewed Ap- beginning. had counsel from the doing appellant that was one cannot find pellant’s talked his alibi wit- counsel rights. He his Amendment denied Sixth day appellant arrested was the ness after shortly his after released on bail was (Tr. 135) appellant’s mother two and to he continued first arrest and so 135). (Tr. days after the offense or three the subse- on the first of arrested was good on oth- memories were At trial their following charges. his quent Thereafter poor points on the clothes er but given was offenses he on the other evening wearing of appellant was rearrested a work release but offense, they that admit did charge rob- of on another June dungarees might and blue have worn attempted rape. such bery Under and 180-181). (Tr. Com- tennis shoes is not to circumstances assailant plainant her had so described in- such culpable in this case for held be thirty police minutes within other carceration resulted 96) (Tr. she so testified offense cases. 85-87). appellant (Tr. When trial that next the trousers I find was arrested Since lapse wearing by prejudiced match- shoes he and tennis his complain- given by accordingly description is concluded time it ed the (Tr. 86, 100). trial was is a suffi- his arrest and That ant prejudicial “arbitrary, oppressive purposeful, any claim cient answer King not moved vexatious.” If error. See 1968). (10th 471- Cer- for a Cir. continuance F.2d trials, supra) suggestion conviction an after ninth dissent Tlie charges. might of this ease on other earlier and sentence which sulted in a conviction U.S.App. States, 118 the other six trials v. United have made Smith would (en by unnecessary banc D.C. belied the fact that eighth 1964). (the tried twice accused was likely 28, 1969,15 grounds, it most other 67 on 86 S.Ct. (1966); been tried that he would have seven L.Ed.2d period jury correctly be- times the fifteen months’ instructed on corrob- when he first tween went oration and the elements the offense having after declared men- guilty;17 of which found July tally competent 1968 when adequately sup- its verdict ported last case tried before Criminal by and corroborated the evidence. respect request his In this 471-67. recognized In conclusion it should be delay may triggered for a short that, after the accused was determined necessity larger delay. ap- for a After mentally trial, competent to be to stand pellant was declared each trial thereafter occurred within a reasonably schedule started out with a prior reasonable after setting prompt pro- first case and for the subject necessary continuances, most normally thereafter, al- ceeded with due appellant’s request of which were at necessary lowance continuances. some of which said to be for charge subject case is thus not the exclusive benefit Government. delay. involves unconstitutional opinion The rationale of this not im- does should be noted the Govern- pose obligation upon appellant through ment’s case was also weakened request an earlier trial date this case corroborating the loss of two witnesses escape respon- but he cannot his share of (Tr. 68-69) complainant’s in-court sibility very delays considerable arguably identification rendered which were caused the continuances growth by appellant’s less effective necessarily the time 147-162).16 (Tr. the interim consumed the other trials which were result his conduct. Also mo- tions for the case to other continuance of IV necessarily implicit dates involved respect er- With to the other claims of consent this case *15 by appellant ror I find that raised period the date fixed for the trial complainant’s identification in-court of that the case was continued. independent properly basis conclusion, accordingly my after full con- admitted; ap- proper that to use of sideration all the reasons for not photograph pellant’s in taken connection reaching Septem- the seventh until juvenile for identification with arrest 3, 1969, ber that the Sixth Amendment case, purposes in this Kent v. United rights appellant not violated States, 391-392, judgment that should conviction (1954), F.2d rev’d be affirmed.18 recognize appel- any objec- The dissent fails to that 17. Trial counsel did not raise chargeable given by some lant to extent with tlie tion to instructions continuance of this case from court. September 3, 29, 1969 to 1969. This Tlie assertion tlie dissent opinion only charges period with him available all times accused was May 15th, his counsel stated which (on 471-67) except a trial Criminal No. original request, her must be period ignores for a four montii the fact recognized may continuance practical appellant that as matter necessary grant have made it to during for trial most available September 3, further continuance to period February seventeen months’ from temporary incapacity because July 29, 1969 because his complainant. preparing counsel was for and was actu- ally engaged Some the evidence was to the effect in the other six trials. appellant’s height weight During also moved changed pounds joined continuances, from 5'9" and another pounds by Septem- successfully to 5'11" and 152 for continuance ber 1969. one moved to indictment and to dismiss FAHY, Judge (dissent- Senior Circuit Amendment. See also Coleman v. United ing) States, U.S.App.D.C. 402, : (1971).
I would reverse
conviction
ground
Delays
by appellant’s
on the
not afforded the
he was
caused
trial coun
speedy
sel,
course,
he was entitled
are different. McNeill v.
addition,
supra.
States,
under
The of- United
some
Sixth Amendment.
delays
fense
are
and must be ac
occurred
unavoidable
age.
years
cepted
public justice.
He was
the interests of
was 18
Haubert,
77, 87,
arrested
the next
See
but was
Beavers v.
brought
later,
thirty
(1905).
to trial until
months
25 S.Ct.
Judge
questions
MacKinnon
rea-
concluding
sonableness
Gov-
It seems obvious from the whole course
appellant’s
ernment should have certified
Government,
of events that the
after fail
during any
case for trial
one of the four
trials,
in each of the other
resorted
periods.
above-mentioned
1121 n. 12
P.
substantially
to
thirty
earlier case
supra.
advanced
The collateral
factors
appellant’s
after
arrest not
to
however,
my
position,
for this
are not in
oppressiveness
avoid
of him
to serve
such as
view
relieved the Government
disregard
purposes,
alone its own
bring
of its own
this case
burden
right
Sixth Amendment
opportunities.
at
one
these
speedy
purposeful,
trial. The
First,
there
no
indication
the rec-
lengthy,
oppressive.
See United
ord,
nor a contention
Parrott,
v.
F.Supp.
States
appeal,
on this
the reason the case
(D.D.C.1965).
prejudicial
It was also
was decertified from the
calendar
if for no other reason than
par-
because “the
months,
incarcerated
for some 18
get ready
ties elected instead to
for and
charge overshadowing
thirty
him for
No. 1506-67 which was
Supreme
recently
months. The
Court
has
26th,
tried from
23rd to the
1968.”
important
referred
values im
“the
supra.
Secondly,
P. 1121 n. 12
the fact
plicit
guarantee
in the constitutional
a continuance
Groppi
Wisconsin,
trial.”
July 10, 1968,
in Criminal No. 1409-
490, 493,
400 U.S.
91 S.Ct.
67 —the counts
indictment
(1971), citing Klopfer
L.Ed.2d 571
severed
one and a half months ear-
Carolina,
North
87 S.Ct.
U.S.
require
separate
lier
trials— 988,
(1967);
the Government states on this case was continued 1969.” complainant expecting “because summer, her second child notes cases Standards acquiescence delay. tactical split must defendant to whether speedy trial, make finds a demand for Judge analysis The Mac requirement in- “the demand assumption opinion Kinnon’s on the rests public consistent with the interest duty to make defendant had some cases,” prompt disposition of criminal request trial of this case first. the better rule is concludes agree rejecting Judge Fahy in demand is such premise. present claim order able to be (g) placed Speedy Relating visions were Rule .87 under 4. § Trial Standards (j). 1968). (Approved 2.2 Draft September suspended Rule on 87 was Florida, Dickey 5. n. master calen- when the former 26 L.Ed.2d S.Ct. system replaced dar the individual Standards, supra, calendaring system 6. ABA note Commen- now in use tary 2.2 at Rule § 17. District Court. See Local adopted May Appellant’s 87(h) (j), 7. District Court Local Rule the instant case was on quoted Harling v. United su delays incident so the trial and all pra note 329 n. place rules. the old thereto took under n. The Local Rule August 1, 1968; revised the sub Tr. 8. stantially Ready pro- similar Calendar plaintiff’s Countervailing Lead- tion trial claim is Circumstances II. complaining that the In This wit- To Case Government’s Affirmance ness was in the United States avail- delay first introduced note when the case able October into the trial of case was was first set for trial. a mental examination post- It was defendant moved for who 19¡ After October ponement date Jan- competent the case to stand found uary 5, 1968, in order to have mental 4, 1968. on March was scheduled for trial already As noted he was examination. day, decertified On that not found trial until to stand ready Govern- calendar at the February 20, 1968. But on December request. No ment’s reasons 1967, prior earliest date which quest appear record. Govern- defendant could have material, un- ment’s reason for trial,' complaining witness had normally moved might Hedgepeth; der Germany join her soldier husband appropriate in order to order a remand Army (Tr. stationed there orders. to ascertain rea- what the Government’s 55). signifi- appraise sons were and their already pointed out, As I if cance. Let had us assume no solely cases other calendar, automatic control good enough and of first that apply judge and that it itself, as the court But assumed. showing and make