Speight v. United States

569 A.2d 124, 1989 D.C. App. LEXIS 245, 1989 WL 146326

Opinions

STEADMAN, Associate Judge:

Under District of Columbia law dealing with pretrial release and detention, a person convicted of committing a crime while on pretrial release is subject to an enhanced sentence. D.C.Code § 23-1328 (1989 Repl.). The issue before this en banc court is whether the due process clause forbids applying this provision in a case where the government shows simply the fact of the defendant’s pretrial release status. We hold that the due process clause requires no more.

I.

Appellant Freeman Speight, Jr., was arrested on January 16, 1984, for the felony offense of carrying a dangerous weapon (the “first” offense). He was presented on that charge and granted pretrial release by the court on January 17, 1984.¹ On October 18, 1984, a grand jury dismissed the government’s allegations and Speight has not been subsequently indicted on that charge.

In the meantime, however, on July 19, 1984, Speight, who was then still on pretrial release in the dangerous weapon case, was arrested on a “second” offense, for distributing cocaine on that day. He was convicted of the cocaine distribution charge on January 23, 1985, and the sentencing hearing was held on March 12, 1985.

The government filed “release papers” alleging that Speight had sold the cocaine while on pretrial release for the felony offense of carrying a dangerous weapon, and that he was therefore subject, pursuant to D.C.Code § 23-1328 (1989 Repl.), to an additional term of imprisonment of from one to five years.² At the time of sentencing, Speight admitted that he had been on pretrial release for the dangerous weapon charge at the time' the cocaine offense allegedly occurred, but also stated that the dangerous weapon charge had later been dismissed by a grand jury. The trial court made no inquiry regarding this allegation, and subsequently sentenced Speight to three to fifteen years in prison, a term we shall assume to be allowable only by virtue of applying the enhancement provision of section 23-1328.³

In his appeal to a panel of this court, Speight presented three arguments. Two of them, that the release offender statute by its terms requires an indictment on the original charge by a grand jury, and that the fifth amendment grand jury clause also requires an indictment, were rejected outright by the panel.⁴ In his third argument, Speight contended that the due process clause prohibits additional punishment in a case such as his, where only an arrest took place. The panel found this argument to be persuasive, reasoning that Speight had received a lengthened prison sentence, in excess of the maximum penalty for the offense of which he has been convicted, for a status that the government had not shown to be related to culpable conduct. However, deeming itself bound by prior holdings of this court to the contrary, M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971), it affirmed. Speight v. United States, No. 85-385 (December 9, 1987). The en banc court vacated the panel decision, and heard argument on the due process issue. We affirm.

II.

The Code section before us, D.C.Code § 23-1328, is straightforward in its terms. In pertinent part, it provides:

(a) Any person convicted of an offense committed while [on pretrial release] shall be subject to the following penalties in addition to any other applicable penalties:

(1) A term of imprisonment of not less than one year and not more than five years if convicted of committing a felony while so released; and

(2) A term of imprisonment of not less than ninety days and not more than one year if convicted of committing a misdemeanor while so released.

No qualification is imposed that the person be guilty of the first offense or that the procedures leading to the pretrial release be free of constitutional imperfection. It is the fact of pretrial release that triggers the enhancement provision. On the other hand, the provision imposes no sanction until and unless it is proven beyond a reasonable doubt that the person committed the second offense while on pretrial release. Thus, the enhanced penalty is imposed not for the release status as such, but rather for committing the second offense while on release. It is the commission of the second crime that is being punished.

The issue before us is whether Congress can enact a statute operating in such a manner consistent with the due process clause of the Constitution.⁵ Historically courts have examined sentencing statutes under a rational basis test, although sentencing by definition impinges on the liberty interest. See Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 702, 38 L.Ed.2d 618 (1974) (statutory distinctions made in sentencing schemes will be upheld if they have “some relevance to the purpose for which the classification is made”) (citations omitted); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Daniel v. United States, 408 A.2d 1231 (D.C.1979) (per curiam). A statute will withstand constitutional attack under rational basis analysis if there is “any state of facts either known or which could reasonably be assumed [that] affords support for it.” Bachman v. United States, 516 A.2d 923, 927 (D.C.1986) (quoting United States v. Carotene Products Co., 304 U.S. 144, 153-54, 58 5.Ct. 778, 784, 82 L.Ed. 1234 (1938)). We undertake that examination.

A.

Section 1328 was enacted as part of the District of Columbia Court Reform and Criminal Procedure Act⁶ which not only reorganized the District’s courts, but also contained provisions reforming the criminal sections of the D.C.Code, including the law regarding pretrial release and detention. In enacting the 1970 Act’s pretrial release provisions, Congress made clear that it was responding to the “very sharp upturn” in serious crime which followed enactment of the Bail Reform Act of 1966, Pub.L. 89-465, 80 Stat. 214, and the local implementing Act, the District of Columbia Bail Agency Act, Pub.L. 89-519, 80 Stat. 327 (1966). See H.R.Rep. No. 907, 91st Cong., 2d Sess. 80 (1970); see also id. at 87 (provisions to “reform ... local bail procedures after ... devastating experience under the Bail Reform Act”); id. (“rise of [street] crime in the District since enactment of the Bail Reform Act ... appalling”); id. at 89 (citing statistics showing “significant effect” of pretrial release on crime rates).

The infirmity perceived in the Bail Reform Act was that, in changing the historic money bail system, it made likelihood of flight the sole criterion in release determinations. In response, the 1970 Act’s provisions on pretrial release and detention, as part of a comprehensive scheme “to help deter crime committed while on release pending trial or appeal,” id. at 93, authorized courts to consider “danger to the community” in deciding whether to grant release. Id. at 87. Section 1328, providing increased penalties for offenses committed while on release, was thus intended as but one provision in a comprehensive legislative scheme designed to deter crime perpetrated by individuals on release.⁷ The legislative history is explicit on this point:

Your committee has also taken certain long overdue steps to help deter crime committed while on release pending trial or appeal. These include modifying existing proof problems in bail jumping prosecutions, providing for adequate sanctions for violation of release conditions including revocation of release where appropriate, and stiff added penalties for crimes committed while released. To heighten the deterrent effect we have proposed that the added penalties and the bail jumping punishments should be mandatory minimum prison sentences imposed consecutively to any other sentences.

It is extremely important to remember when considering these provisions related to pretrial detention that they should not be considered in isolation, but rather as one of the many facets of this bill that seeks to provide some relief to the crime problems besetting the District of Columbia. While we provide more judges and reorganize the courts to expedite trials, we fully realize that the problem of the criminal defendant currently being released under the Bail Reform Act of 1966 poses a threat to the safety of persons and the community that should and must be met.

H.R. Rep. No. 907, 91st Cong., 2d Sess. 93 (1970).

In discussing possible factors giving rise to the “indisputable fact that many defendants are committing ... crimes during the period of ... pretrial release,” Congress noted the “last fling” phenomenon, explaining that “many [released] defendants can be expected to accelerate their misconduct, becoming more reckless and more dangerous because their time for planning action has been reduced.” H.R. Rep. No.' 907, 91st Cong., 2d Sess. 83 (1970).⁸ Increased penalties for crimes committed on release would provide deterrence to those who otherwise would not be “particularly motivated to obey the law during the period of pretrial release.” Id.

Another reality to be considered is that in practice, “any release ordered by the courts include[s] a condition that the defendant not commit another crime while on release.” United States v. Rodriguez, 794 F.2d 24, 27 (2d Cir.1986), rev’d on other grounds, 480 U.S. 522, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). In the instant case, for instance, the release order specifically provided in bold print that the defendant “Not Commit any Criminal Offense” and warned “if you are convicted of an offense committed while released, you shall be subject to ... penalties in addition to any other applicable penalties_” Thus, in enacting D.C.Code § 23-1329 (1989 Repl.), dealing with the revocation of release, the Congress specifically noted that “[bjecause revocation is based on a betrayal of trust placed in the defendant by the court, there is no requirement that there be a showing of substantial probability that the defendant committed the offense for which he was originally released or that the offense must be a felony.” 116 Cong. Rec. 8210-11 (1970) (excerpt from Committee report’s section-by-section analysis). Likewise, it may be viewed as a betrayal of trust to commit a crime while on release. “One demonstrates disdain for the law by committing an offense while on release pending trial of an earlier charge.” State v. Webb, 309 N.C. 549, 555, 308 S.E.2d 252, 258 (1983). One with such an attitude could well be viewed as meriting a longer prison term. See United States v. Grayson, 438 U.S. 41, 50-51, 98 S.Ct. 2610, 2615-16, 57 L.Ed.2d 582 (1978) (noting with approval federal Courts of Appeals decisions holding that the attitude of a convicted defendant with respect to his willingness to flout the law [by committing perjury] is a proper matter for consideration by sentencing judge).

In sum, we cannot say that Congress’ assessment of the District’s crime situation and its chosen course of action to combat the problem by enhancing penalties for persons convicted of an offense while on release is unconstitutionally lacking in rationality.⁹

B.

Even accepting the proposition that Congress may in general single out for enhanced punishment those who commit crimes while on pretrial release, appellant argues that the section as applied is unconstitutional. More specifically, he argues that he must be given an opportunity to show that the first offense involved in fact no culpable conduct by him, or that unconstitutional methods were used in procedures leading to his arrest for the first offense.

One fallacy in this approach is its apparent assumption that the enhanced sentence is imposed as a sanction for the first offense. The sanction is imposed for the commission of the second offense while on pretrial release. As already demonstrated, we think that Congress could rationally impose a greater penalty on such persons convicted for criminal offenses in such circumstances.

Furthermore, the argument appears to be based on a belief that to impose collateral consequences for an involvement with the criminal justice system short of conviction is an unconstitutional infringement on the presumption of innocence. This is not the case.

Courts construing the Federal Firearms Act,¹⁰ which punishes indicted persons who receive or ship firearms in interstate commerce, have consistently rejected claims that the statutory classification is irrational on the ground that, in treating indicted persons differently, it “adversely affect[s] the presumption of innocence.” See, e.g., United States v. Craven, 478 F.2d 1329, 1340 (6th Cir.), cert. denied, 414 U.S. 1086, 94 S.Ct. 606, 38 L.Ed.2d 491 (1973) (classification valid since Congress’ conclusion that fact of felony indictment is “so often indicative of a propensity for violence” is “eminently reasonable”); United States v. Brown, 484 F.2d 418, 424 (5th Cir.1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974) (no merit to claim that statute violates presumption of innocence; whether underlying indictment later found invalid not significant since crime complete when firearm carried in interstate commerce by a person then under indictment); United States v. Quiroz, 449 F.2d 583, 585 (9th Cir.1971) (noting that “Congress did not say that a conviction on the underlying indictment was an ingredient of the crime”); cf. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (Congress could rationally conclude that any unvacated felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit possession of a firearm; limiting scope of statute to validly convicted felons would be at odds with statutory scheme as a whole).¹¹

It is true that the Federal Firearms Act requires that an indictment have issued, while here the release status alone suffices to trigger the enhancement provision. However, prior arrests standing alone have been given effect in certain contexts. See District of Columbia v. Hudson, 404 A.2d 175, 178 (D.C.1979) (discussing uses of arrest records); Villines v. United States, 312 A.2d 304 (D.C.1973) (proper to consider prior arrests in deciding whether to grant pretrial release and release pending appeal); Russell v. United States, 131 U.S. App.D.C. 44, 45, 402 F.2d 185, 186 (1968) (same); 18 U.S.C. § 3577 (1982) (providing that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate penalty”).

Not one of the courts which has interpreted 18 U.S.C. § 3147 (Supp. Ill 1983), the federal analogue to the District’s release offender statute,¹² even remotely suggested that the statute violates the presumption of innocence.¹³ The Supreme Court, in discussing section 3147, noted that the statute “is no different from many other federal statutes requiring minimum sentences.” ¹⁴ In holding that section 3147 does not create a separate offense, the Ninth Circuit stated that the statute “simply mandates an enhanced sentence for someone who commits an offense while released on bail. There is nothing exceptional about the statute, nor is it vague or ambiguous. The language is plain and the meaning is clear.” United States v. Patterson, 820 F.2d 1524, 1526 (9th Cir.1987). See also United States v. Mesa, 641 F.Supp. 796, 798 (S.D.Fla.1986) (section 3147 “clearly grants to the courts the power to enhance the penalty for an offense committed while on release”).

It is well-settled that sentencing judges are afforded broad discretion.¹⁵ The Supreme Court has held that it is a “fundamental sentencing principle” that judges may “conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972).¹⁶ In this context, it is difficult to perceive how Congress could be held to be constitutionally precluded from enacting section 1328. To repeat, the sole crime punished is the crime of committing an offense while on release. Under section 1328, penalties flow, not from the “mere fact of arrest,” but from the affirmative act of engaging in an offense, resulting in conviction, during post-arrest release. We can find no unconstitutionality in this statutory scheme.

1 . A preliminary hearing was held on January 25, 1984. Speight alleges that the dangerous weapon charge was the product of an illegal search and seizure, an argument we note but of course do not assess.

2 . Since Speight had previously been convicted of a drug offense, he was subject as a repeat offender to a maximum sentence of up to ten years, quite apart from his release status. D.C. Code §§ 33-541(a)(2)(B), -548(a) (1988 Repl.).

3 . There is no claim of harmless error on the ground that the sentence could have been imposed without reliance on the release offender provisions.

4 . We agree with and adopt both the reasoning and the holding of the panel in rejecting these two arguments, as set forth in Parts II and III of the panel opinion attached as an Appendix.

5 . The fact that Congress is not imposing punishment for commission of the first offense makes inapposite appellant’s bill of attainder and eighth amendment arguments.

6 . Pub.L. No. 91-358, 84 Stat. 473 (1970).

7 . That the objective of section 1328 invokes a strong governmental interest is plain. "The government’s interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987).

8 . This “last fling” phenomenon need not be viewed as confined to the truly guilty. Congress might reasonably have believed that numerous persons caught up in the criminal justice system might be sufficiently apprehensive, reasonably or not, about the potential of conviction on the original charge such that they would be more likely to engage in criminal conduct once released than they would be otherwise. In any event, the scheme set forth in the release offender statute is not rendered constitutionally infirm simply because it relies on generalized statistics to predict future criminal conduct. See United States v. Salerno, supra, 481 U.S. at 750, 107 S.Ct. at 2103 (Congress could reasonably single out individuals arrested for a specific category of offenses as being far more likely, on the whole, to commit dangerous acts after arrest).

9 . The sentencing scheme is not infirm simply because Congress believed that all persons on release were in need of special deterrence, whereas in fact only some such persons actually posed a threat of recidivism. The line drawn by Congress need not be perfect, so long as it serves rational ends. See, e.g.. New York City Transit Authority v. Beazer, 440 U.S. 568, 592-93, 99 S.Ct. 1355, 1369-70, 59 L.Ed.2d 587 (1979) (transit authority could constitutionally refuse to employ all users of methadone even though some of these persons would be fit employees; that total exclusion rule may be "broader than necessary” does not authorize judicial interference with that policy decision).

10 . 18 U.S.C. § 922(n) (1988). The statute makes it unlawful for “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” The substance of this provision was previously codified at 18 U.S.C. §§ 922(g)(1) & (h)(1) (Supp. V 1965-1969) and, prior to that, at 15 U.S.C. §§ 902(e) & (f) (1964).

11 . We do not read McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), as pointing to a contrary conclusion to our holding here. That case dealt with the proper procedures required when the enhancement factor was possession of a firearm. Here the enhancement factor is pretrial release status. It is not challenged that the burden is on the government to prove that fact or that the court is the proper decider of that fact. Tansimore v. United States, 355 A.2d 799, 803-04 (D.C.1976).

12 . Section 3147 was expressly modeled after the District’s section 1328. See United States v. Cooper, 827 F.2d 991, 994 (4th Cir.1987) (section 3147 "based in large part on the ... District of Columbia Release and Detention Statute” (citing S.Rep. No. 225, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3188, 3190-91, 3195, 3200, 3203-04, 3209)). One difference between the federal and the District’s legislative scheme, is that the District’s statute includes a provision stating that: “The giving of a warning to the person when released of the penalties imposed by this section shall not be a prerequisite to the application of this section." D.C.Code § 23-1328(b) (1989 Repl.).

13 . Indeed, in an opinion holding the federal sentencing guidelines unconstitutional because they impinged on the due process right to be considered as an individual during the sentencing process, section 3147 was cited as an example of what, on the other hand, is permissible. United States v. Alafriz, 690 F.Supp. 1303, 1310 (S.D.N.Y.1988).

14 . United States v. Rodriguez, 480 U.S. 522, 524, 107 S.Ct. 1391, 1392, 94 L.Ed.2d 533 (1987) (per curiam). At issue in the case was whether section 3147 implicitly repealed the federal probation statute. The Court overruled the Second Circuit to hold that it did not.

15 . Williams v. New York, 337 U.S. 241, 246-47, 69 S.Ct. 1079, 1082-83, 93 L.Ed. 1337 (1949); Grant v. United States, 509 A.2d 1147, 1155 (D.C.1986); Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981); Butler v. United States, 379 A.2d 948, 950 (D.C.1977).

16 . See also United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir.1985) (no due process problem where sentencing judge in exercising his discretion relied on evidence with respect to crimes of which defendant was acquitted); United States v. Campbell, 221 U.S.App.D.C. 367, 378 n. 19, 684 F.2d 141, 152 n. 19 (1982) (noting that "[t]he cases uniformly allow consideration of prior acquittals” by sentencing judge); United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir.1977) (sentencing judge may consider evidence of crimes for which a defendant has been indicted but not convicted); United States v. Lee, 540 F.2d 1205, 1210-11 (4th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976) (sentencing judge may consider evidence obtained in violation of Fourth Amendment); United States v. Marines, 535 F.2d 552, 554 (10th Cir.1976) (sentencing judge may consider evidence of courts in an indictment which had been dismissed pursuant to plea bargain); United States v. Sweig, 454 F.2d 181, 184 (2d Cir.1972) ("just as the sentencing judge may rely upon information as to crimes with which the defendant has been charged but not tried, [citation omitted], so here the judge could properly refer to the evidence introduced with respect to crimes of which defendant was acquitted.").