Appeal from the Superior Court of the District of Columbia; (Hon. Ellen Huvelle, Motions Judge), (Hon. Curtis von Kann, Trial Judge)
Before Ferren and Schwelb, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Charles D. Mack was convicted by a jury of distribution of cocaine, in violation of D.C. Code § 33-541 (a)(1) (1989). On appeal, he contends that the motions Judge committed reversible error by refusing to dismiss the indictment against him, and by instead granting the government a one-day continuance on the 99th day of his pretrial detention. Mack further contends that the trial Judge committed reversible error by also refusing to dismiss the superseding indictment on the 100th day after Mack was initially detained, and by allowing the trial to begin on the 104th day of his pretrial detention, contrary to D.C. Code § 23-1322 (h) (1992). Because the proper remedy for these alleged errors would be reconsideration of Mack's pretrial detention status, rather than dismissal of the indictment, we affirm.
Mack was arrested on May 27, 1992, and charged with distribution of heroin, in violation of D.C. Code § 33-541 (a)(1) (1989). Following a pretrial detention hearing, Mack was detained without bond pending trial, pursuant to D.C. Code § 23-1322 (b) (1992). *fn1 Under the provisions of the Bail Reform Act of 1992, a person so detained must be indicted within 90 days, and tried within 100 days, of the initial detention. Id. § 23-1322 (h). On June 17, 1992, the 21st day of detention, a grand jury indicted Mack on the heroin charge.
Trial was set for September 3, 1992, the 99th day of Mack's detention. When the motions Judge called the case for trial on that date, Mack's attorney stated that he was ready to proceed. The prosecutor, however, requested a one-day continuance because he had discovered that the DEA's chemical analysis of the contraband allegedly distributed by Mack established that the substance in question was cocaine, rather than heroin, as alleged in the original indictment. Mack's counsel objected and asked the court, instead, to dismiss the indictment for want of prosecution. The Judge denied the motion to dismiss and granted the government's request for a continuance. The Judge informed the prosecutor, however, that she would dismiss the charges, presumably for want of prosecution, if a new indictment was not returned immediately.
The prosecutor proceeded with dispatch and, later in the day, the grand jury indicted Mack on one count of distribution of cocaine. See D.C. Code § 33-541 (a)(1) (1989). On the following day (Friday, September 4, 1992) Mack was arraigned on the new charge, and the original indictment was dismissed. Mack renewed his objection to the return of a superseding indictment and demanded an immediate jury trial. The motions Judge informed counsel, however, that the prospects for finding an available trial Judge on that day -- the 100th day of Mack's detention -- were "less than likely." Faced with this reality, Mack's attorney agreed to a trial date of Tuesday, September 8, 1993, provided that the record reflected that no Judge was available on September 4, 1992. *fn2 The Judge agreed that the record would so indicate.
When the parties appeared for trial on September 8, 1992, Mack renewed his motion "to dismiss or in the alternative, for personal recognizance because was being held past the one-hundred-day mark and the government was not in actuality ready when the trial was set on the original trial date." The trial Judge noted that the motions Judge had previously ruled on the issue. Treating Mack's contention as a motion for reconsideration, the Judge denied relief and trial commenced. On September 10, 1992, the jury found Mack guilty beyond a reasonable doubt.
On September 21, 1992, Mack filed a motion for arrest of judgment pursuant to Super. Ct. Crim. R. 34, alleging that the court had lacked jurisdiction to try him because the trial had not commenced within 100 days of his initial detention, as required by D.C. Code § 23-1322 (h). On October 16, 1992, the trial Judge denied this motion by written order. The Judge found that good cause had existed to continue Mack's pretrial detention and that, in any event, Mack had waived his claim by "agreeing" to go to trial on September 8, 1992. The Judge also noted that Mack had failed to identify any prejudice resulting from the one-day continuance or from the filing of the superseding indictment. This appeal followed.
Section § 23-1322 (h) provides that
the case of the person detained pursuant to subsection (b) of this section shall be placed on an expedited calendar and, consistent with the sound administration of Justice, the person shall be indicted before the expiration of 90 days, and shall have trial of the case commence before the expiration of 100 days. However, the person may be detained for an additional period not to exceed 20 days from the date of the expiration of the 100-day period on the basis of a petition submitted by the attorney for the government and approved by the judicial officer. The additional period of detention may be granted only on the basis of good cause shown and shall be granted only for the additional time required to prepare for the expedited trial of the person. For the purposes of determining the maximum period of detention under this section, the period shall not exceed 120 days.
Mack does not deny that he was initially indicted within 90 days of his arrest, as required by the foregoing provision. He contends, however, that the indictment under which he was tried and convicted was returned on the 100th day of detention, that this was too late, and that the superseding indictment should therefore have been dismissed. Even if we were to assume that the motions Judge abused her discretion in granting the one-day continuance and in permitting the prosecutor to seek an immediate superseding indictment, however, *fn3 dismissal of the charges would have been altogether inappropriate. Section 23-1322 (h) is part of a remedial preventive detention regime, and the proper remedy for noncompliance with the protections included in the statutory scheme is to reconsider the, defendant's detention without bond, not to terminate the prosecution.
Section 23-1322 (h)(2) explicitly provides that where a defendant has been detained for a period in excess of that authorized by the statute, he "shall be treated in accordance with § 23-1321 (a) unless the trial is in progress, has been delayed by the timely filing of motions excluding motions for continuance, or has been delayed at the request of the defendant." *fn4 Section 23-1321 (a) delineates various conditions of release which may be imposed, including, among other alternatives, release on personal recognizance or imposition of bail. The appropriate remedy for a violation of ...