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UNITED STATES v. HOLLAND

January 11, 1990

UNITED STATES OF AMERICA
v.
VERNON HOLLAND; UNITED STATES OF AMERICA v. LAMAR HARRIS


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

The two cases before the Court present ramifications of this Court's earlier decision in United States v. Roberts, 726 F. Supp. 1359 (D.D.C. 1989), which held unconstitutional on due process grounds, particularly as applied in this District, the new federal sentencing statute, *fn1" and the guidelines issued pursuant thereto by the Sentencing Commission.

 I

 On November 16, 1989, in a comprehensive Opinion, the Court stated in Roberts that in its view the sentencing statute is unconstitutional under the Fifth Amendment's Due Process Clause, and that recent policies of the United States Attorney for this District regarding the transfer of cases from the District of Columbia Superior Court to this Court "skewed the process even further." This was so, according to Roberts, because the prosecutor had inter alia transferred *fn2" to this Court from the local tribunal the cases of defendants who had refused to plead guilty, and those against whom charges had been dismissed or were subject to dismissal on account of the failure of the prosecution to be ready for trial on the date or dates set by the Superior Court. Based upon these considerations, the Court dismissed the charges against two defendants in cases pending before it, *fn3" and it set down for a hearing the motion to dismiss of a third, Vernon Holland.

 On November 27, 1989, the government filed an opposition to Holland's motion in which it argued that the Court had no jurisdiction to interfere with the exercise of the U.S. Attorney's prosecutorial authority. Attached to the opposition was a factual declaration of Assistant U.S. Attorney Charles J. Harkins, Jr., who directed the transfer operation, providing details of the transfer of approximately fifty-five cases from D.C. Superior Court to this Court. *fn4" The opposition and the Harkins declaration contend in essence that the transfer operation did not have the purpose to confer tactical litigation advantages on the prosecution or to impose corresponding burdens on Holland or any other defendant.

 Counsel for the defendant subpoenaed Mr. Harkins and three other Assistant U.S. Attorneys who were involved in the Holland transfer decision, as well as the files on the other individuals whose cases had been moved from Superior Court to this Court. *fn5" A hearing was held on January 4-5, 1990, on the conflicting claims regarding the purpose and effect of the transfers of the cases originally indicted in D.C. Superior Court.

 II

 At the hearing on the motion to dismiss, Mr. Harkins described the procedure by which indictments were obtained in this Court for individuals already indicted in Superior Court for similar or identical offenses. Mr. Harkins testified that five specific criteria were used for the transfer decisions: the gravity of the offense, the defendant's prior record for drug crimes, prior record for violent crimes, the use of weapons, and the amount of the drugs. According to Harkins, the Assistant U.S. Attorneys assigned to felony trials in Superior Court *fn6" were asked to list those who met these criteria. *fn7" However, it soon became apparent that this system was not workable, and the Harkins task force accordingly made a direct search of the files of approximately two hundred defendants *fn8" out of the five thousand or more whose cases were pending in Superior Court on drug charges. Ultimately, two groups of cases were transferred by this method, the first consisting of forty cases, the second of fifteen cases. However, individual transfers continued to be made thereafter and are still being effected now.

 Mr. Harkins, supported to an extent by the other three prosecutors who testified, stated emphatically and in accordance with his original declaration, that neither the failure of a defendant to plead guilty nor the dismissal or threatened dismissal of charges in Superior Court for failure of the prosecution to be ready for trial played any part in the transfer decisions. The defendant produced no testimony from any Assistant U.S. Attorney to contradict these assertions. However, he did produce some twenty-nine files out of the fifty-five *fn9" of the transfer cases which demonstrate that the prosecution almost invariably secured a tactical litigation advantage as a consequence of the transfers.

 In case after case, the particular defendant whose case was transferred had declined to plead guilty in Superior Court *fn10" prior to his indictment in this Court. *fn11" Indeed, in several instances, the relationship between the refusal to enter a guilty plea and indictment in federal court was explicitly spelled out. *fn12"

 Similarly, in case after case, the U.S. Attorney's Office secured an indictment in this Court shortly before, contemporaneously with, or shortly after, a trial date in Superior Court. In several instances, the prosecution either was not, or expected not to be, ready for trial in the local court on the date set, but asked for a continuance ostensibly to enable it to become ready. *fn13" Nevertheless, the U.S. Attorney's Office then secured an indictment in this Court prior to the next Superior Court trial date, *fn14" or obtained such an indictment upon a Superior Court dismissal for want of prosecution. *fn15"

 The Court finds that the circumstantial evidence of what actually occurred is more persuasive than the necessarily self-serving declarations of those who conducted the operation. It is improbable that the relationship in time between the transfer decisions, on the one hand, and the trial dates in Superior Court, on the other, was entirely coincidental.

 It is not necessary, however, to decide this motion primarily on the basis of a conflict between the testimony of the no doubt well-meaning Assistant U.S. Attorneys and the facts as they emerge from the documents. Although Mr. Harkins denied repeatedly that transfer decisions were made to coerce guilty pleas in Superior Court, *fn16" his testimony regarding avoidance of Superior Court trial dates was more equivocal. While the witness testified that he was not personally influenced by the imminence of Superior Court trial dates, or the possibility of dismissals for want of prosecution by that court, he did acknowledge that the factual data demonstrating these possibilities, probabilities, or certainties were usually listed on the file jackets which he and others reviewed. Furthermore, although the witness initially stated that his transfer decisions were made long before these Superior Court trial events became imminent threats, he subsequently conceded that decisions were made over a long period of time, and that some of them are still being made now.

 The short of the matter is this. Properly analyzed, the documents and the testimony of the prosecutors are not in substantial disagreement on two fundamental matters -- that, whatever the purpose, *fn17" the defendants were, in fact, disadvantaged by the methods by which the transfer operations were carried out, *fn18" and that the effect of the transfers was to secure for the prosecution significant tactical litigation advantages. *fn19"

 In the typical case, a decision was made in May or June of 1989 to secure an indictment in this Court, even though an indictment for the same conduct was already outstanding in Superior Court. However, despite the fact that the decision to transfer had already been made, the new federal indictment was deliberately not obtained until the fall of that year, just about the time the Superior Court case was called for trial and could no longer be postponed. During the interim period (between four and six months) normally no one other than the prosecutor knew -- not the judge, not the defense counsel, not the defendant -- that the proceedings in Superior Court were entirely meaningless since they would inevitably be superseded by new proceedings in District Court. This Court rejects the prosecution's claim that this relative imbalance in knowledge did not amount to a tactical litigation advantage or that the prosecution had not generated it by its actions.

 As far as the defendants and their counsel are concerned, they were spending their time, energy, and money in attempting to interview witnesses, track down leads, perform legal research, to file motions, and make court appearances, all against phantom charges -- charges that the prosecution had no intention of bringing to fruition. *fn20" Indeed, it appears that even the Superior Court judges were misled in some of the cases: they were requested to grant to the prosecution a continuance of the trial on the basis that, on the continued date, unlike at the time of the request, the prosecution would be ready to go forward, when actually the government had no intention of proceeding to trial in that court, having already secured or being about to secure an alternative indictment in this Court.

 Moreover, there is an injury to the defendants that is even more direct -- a violation of their right to a speedy trial. If an indictment had been returned when the decision was made to proceed in this Court in lieu of the pending Superior Court prosecution, the government would have had seventy days in which to proceed to trial. 18 U.S.C. ยง 3161. By deliberately waiting several months (typically some 120 to 180 days) following the decision to transfer but prior to its implementation, the prosecution doubled or tripled that seventy-day period, and to that extent it intentionally deprived the defendant of his speedy trial rights. *fn21"

 The prosecution's own explanation for the delay substantiates that conclusion. Mr. Harkins testified that the decision was made to space the return of the federal court indictments over a substantial period both to avoid unduly burdening the District Court system and to avoid triggering the Speedy Trial Act clock. At the hearing, Harkins explained how avoidance of the Speedy Trial Act factored into the transfer decision:

 
Witness: I told them [the assistants] that in returning their indictments that they were to return them based upon the trial dates that were set in Superior Court, and I did not want all 30 indictments returned in one massive return.
 
Government Counsel: Why is that?
 
Witness: Because it would have bogged down -- under the Speedy Trial Act in the District of Columbia, it would have made trying those cases virtually impossible for both the Court and the individual assistants who were assigned to try them, because they would all have ...

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