hold a hearing with respect to one of these defendants.
C. Speedy Trial Act
Application of the Speedy Trial Act, 18 U.S.C. § 3161(b), which mandates that "an information or indictment shall be filed within thirty days" from the date of arrest, likewise casts substantial doubt on the legality of the government's actions herein. As related above, two of the defendants, Mills and Holland, were arrested on February 16, 1989, and their indictment in this Court was filed on September 21, 1989, over seven months after the arrest, rather than the thirty days required by section 3161(b). The third defendant, Wonson, was arrested September 5, 1988, but he was not indicted here until September 12, 1989, over one year later. The government defends these lengthy delays on the basis that the Speedy Trial Act does not prevent the return of a federal indictment more than thirty days after an individual's arrest on state charges, United States v. Adams, 694 F.2d 200, 202 (9th Cir. 1982), and that for purposes of this rule, District of Columbia arrests are to be equated with state arrests. United States v. Robertson, supra, 810 F.2d at 257.
The Robertson decision is of course critical to an analysis of defendants' claims of denial of their speedy trial rights. In that case, the Court of Appeals stated that the U.S. Attorney for the District of Columbia "has a freer hand than do his counterparts in other districts . . .," and it recognized that he therefore "could manipulate the order of arrests, so as to intentionally avoid the Act, without having to obtain the cooperation of an independent local prosecutor." 810 F.2d at 258. However, the court found the chances of such an abuse to be slim, stating that there was "no claim that the delay and shift of jurisdiction resulted from any intent to evade the Act, and nothing in the record would support such a claim." Id.
It is in this respect that the instant cases differ from Robertson. With some forty to eighty
prosecutions having recently been transferred from Superior Court to this Court, all or most of them many months after arrest and the filing of Superior Court charges, the Court would have to be blind to avoid the conclusion that such a massive operation was undertaken for the purpose of gaining tactical advantages over the defendants in these cases. As indicated above, these tactical advantages embrace both the federal preventive detention law and the sentencing statute. But the scheme adopted by the U.S. Attorney also constitutes a manipulation of the Speedy Trial Act, on the following basis.
If the prosecutor charged a large number of defendants ab initio in this Court, with its fifteen judges versus over fifty in Superior Court, it might be expected that the Speedy Trial Act requirement of a trial within seventy days of arraignment would lead to many dismissals for failures to comply with the Act. By bringing the charges initially in Superior Court, the prosecution is not subject to the time pressures of the federal law,
but is able instead to count on delays of many months to a year or more. As the instant case demonstrates, when the Superior Court trial date finally arrives, the prosecution may seize the opportunity to secure new indictments in this Court for those who have refused to plead guilty or are for other reasons singled out for exposure to the federal law. At that juncture the investigations of police agencies and the preparations of the individual prosecutors have presumably been completed, and the government would at that point be able to meet the Speedy Trial Act deadlines without having complied with them for a great many months. On this basis, the Court now makes the finding absent in Robertson : that the U.S. Attorney has manipulated the system so as to "intentionally avoid the [Speedy Trial] Act."
If the prosecution may proceed as it did in these and the other cases transferred during the recent period, the thirty-day requirement of the Speedy Trial Act could quickly become a dead letter in the District of Columbia: the U.S. Attorney would be able to hold any and all arrested persons as Superior Court defendants for as long as he wished,
and when he ultimately decided to secure indictments here, the entire delay would automatically be forgiven for Speedy Trial Act purposes. That result is not consistent with what the Congress intended when it passed the Act.
In recommending that the Speedy Trial Act not be made applicable to the D.C. Superior Court despite the fact that the United States Attorney has prosecutorial authority over major District of Columbia offenses as well as over federal offenses, the House Judiciary Committee stated that "it is conceivable that this type of overlapping jurisdiction could result in 'forum-shopping' in an attempt to escape the speedy trial restrictions that will apply to the federal courts in D.C.," and that such forum shopping "would be antithetical to the goals of Federal speedy trial legislation." H.R.Rep. No. 93-1508, 93d Cong., 2d Sess. 40, reprinted in, 1974 U.S.Code Cong. and Admin. News 7401, 7441.
All that having been said, it is still true that the principal vice of the wholesale transfer of criminal cases from the local to the federal court
is that it gives the prosecution one additional lever with which to manipulate the system so as to compel the imposition of what he regards as the proper sentence.
The breadth of the power possessed by the U.S. Attorney and the arbitrariness with which it is being exercised are most vividly illustrated by a comparison of the cases that are being transferred from the D.C. Superior Court to this Court with those that remain there, and the consequences in each instance. Although this Court is not in a position on this record to provide a statistical analysis, episodic evidence suggests that the prosecutions that have been transferred to this Court do not differ in any material respect from those that have remained in Superior Court. For example, within the past three weeks, this Court conducted the trial of a female defendant, without any prior criminal record, who had been charged with possession with intent to distribute 5.5 grams of crack. United States v. Rosenboro, Crim. No. 89-0237 (filed July 29, 1989). Under 21 U.S.C. § 841(b)(1)(B)(iii), a mandatory minimum sentence of imprisonment for five years is prescribed because the quantity exceeded five grams. At the same time, thousands of drug cases are being routinely prosecuted in Superior Court, including many that involve crack, large quantities of drugs, or both. Under District of Columbia law applicable in that court, D.C. Code § 33-541(b), the same offense carries a maximum sentence of five years of imprisonment, and no minimum of any kind, with probation available as well.
Simply by selecting out some defendants from among the many in Superior Court for prosecution in this Court, the U.S. Attorney is able to ensure that these particular defendants will be sentenced to imprisonment for a minimum of five or ten years, while others, not so selected but otherwise similarly situated, will, upon conviction, be sentenced under the discretionary sentencing provisions available in Superior Court to a small fraction of that time.
The issue is not which set of laws is preferable: that is a matter for decision by the legislative bodies. But if there exists a more flagrant opportunity for the exercise of arbitrary power, inevitably resulting, at the whim of the U.S. Attorney, in widely disparate sentences, without the possibility of review by anyone, it has not come to the Court's attention.
Vigorous efforts to proceed against the large-scale drug distributors and conspirators who are undermining the peace and tranquility of this city are to be applauded. In view of the menace that the drug trade represents, strict, even harsh sentences are both useful and necessary. This Court's concern is not with such sentences; they are daily proving their utility, and there can be no question of their legality.
The Court's concern is with fairness and due process. It is not necessary for the fight against the illegal drug dealers or other criminals, nor is it fair and legal, to shortcut the Constitution by resorting to procedures which violate the requirements of the Due Process Clause. Such shortcuts would be invalid in any case; they are particularly indefensible when they are applied, as they are in cases such as those before the Court here, against mere drug couriers or "mules," without inside knowledge of or involvement in the operation of the major drug conspiracies.
Moreover, as discussed in Part IV, infra, these small-time offenders, unlike drug kingpins, cannot "buy" their way out of the mandatory sentences by furnishing cooperation to law enforcement -- at least not in the way the U.S. Attorney is interpreting the cooperation provisions of the sentencing statute and the guidelines.
The Issue of Cooperation
Two of the cases before the Court, those of Stephaney Roberts and of Jane Doe, involve the provisions of the sentencing law and the guidelines which authorize departures from otherwise mandatory sentencing requirements. 18 U.S.C. § 3553(e) provides
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of Title 28, United States Code. (Emphasis supplied).
Similarly, section 5K1.1 of the guidelines issued by the Sentencing Commission provides
Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.