Givens v. United States

644 A.2d 1373, 1994 WL 392719

• Court: District of Columbia Court of Appeals
• Decided: July 28, 1994
• Docket: 92-CF-777
• Status: Published

Opinions

PER CURIAM:

In this appeal from their convictions for distribution of heroin (D.C.Code § 33-541(a)(1) (1993)), appellants’ primary contention is that a delay which they calculate at twenty-four months between their indictment and trial, but which the trial court determined to be fifteen months, violated their Sixth Amendment right to a speedy trial. We publish this opinion only to remove a lingering uncertainty in our decisions, despite plain Supreme Court teaching, as to whether time between the dismissal of prior charges and indictment (or restraint on liberty) counts for purposes of Sixth Amendment speedy trial analysis. We affirm.

In Branch v. United States, 372 A.2d 998 (D.C.1977), we rejected as “baseless” the government’s contention that the four and one-half months between dismissal of the first indictment and the filing of the second should be disregarded in computing the length of delay at issue. Id. at 1000. Branch, however, was effectively overruled on this point by United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), in which the Supreme Court held that “[o]nce charges are dismissed, the speedy trial guarantee is no longer applicable.” Id. at 8, 102 S.Ct. at 1502 (footnote omitted).¹ The reason is that

[t]he speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

Id. Because these concerns are not engaged when charges have been dismissed, any delay after that time, “like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause.” Id. at 7 (footnote omitted). See also United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977) (holding that Due Process Clause, not Speedy Trial Clause, governs analysis of pre-indictment delay).

In United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), the Court reaffirmed MacDonald, holding that “under the rule of [that decision],” when no indictment is outstanding and “defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.” Id. at 312, 106 S.Ct. at 654.²

In Robinson v. United States, 452 A.2d 354 (D.C.1982), this court acknowledged MacDonald’s holding that “the period between dismissal of the first charge against a defendant and indictment falls outside the speedy trial clause,” and on that basis rejected the defendant’s claim that Sixth Amendment analysis applied to delay between the government’s voluntary dismissal of charges against him and his indictment more than four years later. Id. at 357.³ Appellants try to distinguish each of the above-cited cases — Robinson, Loud Hawk, and MacDonald — factually, but the effort is fruitless. Somewhat more troubling is the fact that in Wynn v. United States, 538 A.2d 1139 (D.C.1988), this court did not embrace directly the government’s argument that it not count a short post-dismissal period during which the defendant was not charged or “subject to the restraints on liberty that are the object of the right to a speedy trial”; instead the court stated that it would consider that hiatus as “a circumstance which will be balanced in the context of all the circumstances.” Id. at 1142 n. 7. Appellants suggest that this breathed new life into consideration of post-dismissal delay as part of the total “circumstances” affecting Sixth Amendment analysis. But, of course, Wynn could not alter our previous holding in Robinson, see M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), nor could it revitalize a period of delay which the Supreme Court has made clear does not implicate Speedy Trial Clause concerns. Appellants read far too much into an ambiguous footnote in Wynn not integral to the court’s holding.⁴

Finally, appellant Bryant argues that the Supreme Court’s most recent speedy trial decision, Doggett v. United States, — U.S. -, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), calls into question the teaching of MacDonald and Loud Hawk. As the Court in Doggett repeatedly cited both cases without hinting at disapproval, however, this argument is implausible at the outset. Doggett involved a situation where an indictment had been returned against the defendant and left outstanding for eight and a half years before he was arrested and brought to trial. Id., — U.S. at-, 112 S.Ct. at 2690. The primary issue before the Court was whether, in view of this extraordinary delay, the defendant had to show “precisely how he was prejudiced by the delay between his indictment and trial.” Id., — U.S. at-, 112 S.Ct. at 2692. Thus, the Court had no occasion to revisit MacDonald’s holding as to the significance vel non of delay during a time when no indictment or charges are pending and no restrictions have been imposed on the person’s liberty. Nevertheless, the Court reaffirmed the teaching of MacDonald and Loud Hawk “that the Sixth Amendment right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution ... triggered by arrest, indictment, or other official accusation....” Id.

It remains for us to consider whether, under the multi-factored analysis of Barker v. Wingo, supra note 1, the trial judge correctly concluded that the fifteen-month delay at issue here did not violate appellants’ Sixth Amendment right. We hold that she did. Moreover, addressing an argument appellants did not raise in the trial court, we reject the claim that the full twenty-four months between the original indictment and trial violated their Due Process right under the Fifth Amendment. United States v. Lovasco, supra; Robinson v. United States, 478 A.2d 1065, 1066 (D.C.1984).⁵

Affirmed.

1 .To the extent that MacDonald did not supersede it, Branch, of course, remains good law insofar as it represents one of this court’s early explications of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the multi-factored test for assessing Sixth Amendment delay.

2 . Appellants do not contend they were ever under arrest or on conditional release during periods when no indictment was in effect.

3 . Robinson cited Branch with a “but cfi,” but did not suggest any distinction that would allow the earlier decision to survive the holding of MacDonald.

4 . The court noted that whether or not the two-month period at issue were counted, "the speedy trial claim [here] has prima facie merit.” Wynn, 538 A.2d at 1142 n. 7.

5 . Finally, we reject appellant Givens’ claim on "adulteration” grounds that the trial court abused its discretion in admitting into evidence a police videotape depicting Givens’ actions outside the building in which the heroin sale took place. See, e.g., German v. United States, 525 A.2d 596 (D.C.), cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987); Ford v. United States, 396 A.2d 191 (D.C.1978).