United States v. Erwin L. Cooper, United States of America v. Robert S. Turner

504 F.2d 260, 164 U.S. App. D.C. 191, 1974 U.S. App. LEXIS 6885

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 13, 1974
• Docket: 73-1171, 73-1206
• Status: Published

Opinions

PER CURIAM:

In connection with the armed robbery of a bank, appellants were convicted of three counts of bank robbery (18 U.S.C. § 2113(a)), three counts of armed robbery (22 D.C.Code §§ 2901, 3202), and seven counts of assault with a dangerous weapon (22 D.C.Code § 502). They were sentenced under the Youth Corrections Act.

On the basis in part of strong identification evidence the convictions, as we set forth later in this opinion, are affirmed, notwithstanding the two principal contentions of error, namely: (1) the admission of incriminating statements allegedly contrary to the test of admissibility set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and (2) failure of the prosecution to afford appellants a speedy trial. While these contentions are by no means frivolous, our study of the record persuades us that a new trial is not justified on either ground. As to the speedy trial issue, howeve:r, the delay of thirteen months, for which the appellants bear no responsibility, is troublesome. It is true that the part of the delay — the first seven months — for which the government is directly responsible was at least partially justifiable. During that period the government was apparently conducting an investigation of the bank robbery which resulted in the naming of three additional individuals in a superseding indictment. However, the greatest part of the rest of the thirteen-month delay was due to the fact that the trial judge to whom the case had been assigned was occupied with other trial duties. Such institutional delay is a weak ground upon which to stand against the constitutional right, especially in the absence of exploration of the availability of other judges to assume responsibility for the case.¹ The thirteen-month delay caused the prosecution to fall under the prima facie cloud of violation of the constitutional right. United States v. Rucker, 150 U.S.App.D.C. 314, 464 F.2d 823, 825 (1972).

Furthermore, while appellants may have failed to assert the right formally until the day the trial began, the failure of the government to comply with Rule 46(g) of the Federal Rules of Criminal Procedure, see note 1, supra, cancels any negative effect that appellants’ silence may have on the validity of their speedy trial claim. As we recently indicated in United States v. Calloway, supra, 505 F.2d at 317, where the gov-' ernment failed to comply with Rule 46(g):

In the face of its own dereliction the government is clearly not in a position to claim that appellant should be penalized for failing to press his right.

However, what does operate against holding that the right to speedy trial was violated is the lack of significant prejudice caused by the delay. While incarceration is normally taken to be a weighty indication of prejudice, see Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Calloway, supra, 505 F.2d at 317, Turner was incarcerated only during that portion of the period between arrest and trial in which the delay was justifiable. The longer period that Cooper spent in pretrial detention is attributable to the fact that, having been released pending trial, he violated the conditions of release and was reincarcerated. The incarceration that occurred in this case did not cause prejudice at trial significant enough to justify reversing the convictions.

The problems of compliance with Miranda, and, also, the separate issues of voluntariness of Turner’s confession and, particularly, the incriminating statement of Cooper, are also troublesome, but on careful review of the record of the suppression hearing, while doubts are not eliminated, we do not find justification for overriding the relevant findings and conclusions of the trial judge.²

We also have considered the matter of multiple convictions. Of seven convictions of assault with a dangerous weapon, three, involving bank tellers, are set aside, as lesser included offenses of the armed robberies of the tellers. Counts 3, 6 and 9 are accordingly vacated. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973). Of the four other convictions of assault with a dangerous weapon, appellants seek to have three also set aside under United States v. Alexander, 152 U.S.App.D.C. 371, 471 F.2d 923 (1973). They contend the assault was perpetrated on a group and thus constituted a single criminal act. An analysis of the testimony, however, clearly supports the convictions as resting upon three separate assaults rather than a group assault. Each of the three bank officials was approached individually by the gunmen and assaulted separately. Finally, as the United States concedes, two of the three convictions for bank robbery must be vacated under United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972). The result is that the convictions of bank robbery (count 1), armed robbery (counts 2, 5, 8), and assault with a dangerous weapon (counts 10, 11, 12, 13) are affirmed.

It is so ordered.

1 . liad the government not failed to comply with Rule 46(g) of the Federal Rules of Criminal Procedure, the trial judge would have been regularly alerted to the need to explore alternative means for expediting these oases. The Rule provides that in the exercise of its supervision over the detention of defendants pending trial, for the purpose of eliminating all unnecessary detention, the attorney for the government shall make a biweekly report to the court listing each defendant held pending trial for a period in excess of ten days. As to each defendant so listed the attorney for the government is required to state the reasons why he is still held in custody. (Under 23 D.C.Code § 1303(h)(6) the D.C. Bail Agency shares responsibility for preparation of the Rule 46(g) reports with the United States Attorney’s office.) It would seem that if the United States Attorney’s office had complied with these requirements in appellants’ cases tho. assigned judge, alerted to the continuing delay, might well have requested that these cases he reassigned to another District Judge not so heavily occupied in a protracted trial. Indeed the United States Attorney himself might have moved to have the cases reassigned so that the trial could be expedited.

The purposes of the Rule are to require the government to share the burden of preventing unnecessary pre-trial confinement, and to keep the trial court on notice of the special need for a speedy trial since the defendant is confined.

United States v. Calloway, 164 U.S.App.D.C. -, 505 F.2d 317 (1974).

The matter is of special importance because defendants are often indigent, unschooled and represented by overburdened attorneys, and it would be unrealistic to expect them to take initiative to gain fulfillment of the purposes of the Rule.

2 . As to the validity of the Miranda waivers, see Frazier v. United States, 419 F.2d 1161 (D.C.Cir.1969) ; Pettyjohn v. United States, 419 F.2d 651 (D.C.Cir.1969).