Appeals from the Superior Court of the District of Columbia; (Hon. Ellen Segal Huvelle, Trial Judge)
Before Terry and Farrell, Associate Judges, and Mack, Senior Judge. Opinion for the court Per Curiam. Dissenting opinion by Senior Judge Mack.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: In this appeal from their convictions for distribution of heroin (D.C. Code § 33-541 (a)(1) (1993)), appellants' primary contention is that a delay which they calculate at twenty-four months between their indictment and trial, but which the trial court determined to be fifteen months, violated their Sixth Amendment right to a speedy trial. We publish this opinion only to remove a lingering uncertainty in our decisions, despite plain Supreme Court teaching, as to whether time between the dismissal of prior charges and indictment (or restraint on liberty) counts for purposes of Sixth Amendment speedy trial analysis. We affirm.
In Branch v. United States, 372 A.2d 998 (D.C. 1977), we rejected as "baseless" the government's contention that the four and one-half months between dismissal of the first indictment and the filing of the second should be disregarded in computing the length of delay at issue. Id. at 1000. Branch, however, was effectively overruled on this point by United States v. MacDonald, 456 U.S. 1, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1982), in which the Supreme Court held that "once charges are dismissed, the speedy trial guarantee is no longer applicable." Id. at 8 (footnote omitted). *fn1 The reason is that
the speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
Id. Because these concerns are not engaged when charges have been dismissed, any delay after that time, "like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the Speedy Trial Clause." Id. at 7 (footnote omitted). See also United States v. Lovasco, 431 U.S. 783, 788-89, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977) (holding that Due Process Clause, not Speedy Trial Clause, governs analysis of pre-indictment delay).
In United States v. Loud Hawk, 474 U.S. 302, 88 L. Ed. 2d 640, 106 S. Ct. 648 (1986), the Court reaffirmed MacDonald, holding that "under the rule of [that decision]," when no indictment is outstanding and "defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause." Id. at 312. *fn2
In Robinson v. United States, 452 A.2d 354 (D.C. 1982), this court acknowledged MacDonald's holding that "the period between dismissal of the first charge against a defendant and indictment falls outside the speedy trial clause," and on that basis rejected the defendant's claim that Sixth Amendment analysis applied to delay between the government's voluntary dismissal of charges against him and his indictment more than four years later. Id. at 357. *fn3 Appellants try to distinguish each of the above-cited cases -- Robinson, Loud Hawk, and MacDonald -- factually, but the effort is fruitless. Somewhat more troubling is the fact that in Wynn v. United States, 538 A.2d 1139 (D.C. 1988), this court did not embrace directly the government's argument that it not count a short post-dismissal period during which the defendant was not charged or "subject to the restraints on liberty that are the object of the right to a speedy trial"; instead the court stated that it would consider that hiatus as "a circumstance which will be balanced in the context of all the circumstances." Id at 1142 n.7. Appellants suggest that this breathed new life into consideration of post-dismissal delay as part of the total "circumstances" affecting Sixth Amendment analysis. But, of course, Wynn could not alter our previous holding in Robinson, see M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971), nor could it revitalize a period of delay which the Supreme Court has made clear does not implicate Speedy Trial Clause concerns. Appellants read far too much into an ambiguous footnote in Wynn not integral to the court's holding. *fn4
Finally, appellant Bryant argues that the Supreme Court's most recent speedy trial decision, Doggett v. United States, 120 L. Ed. 2d 520, 112 S. Ct. 2686 (1992), calls into question the teaching of MacDonald and Loud Hawk. As the Court in Doggett repeatedly cited both cases without hinting at disapproval, however, this argument is implausible at the outset. Doggett involved a situation where an indictment had been returned against the defendant and left outstanding for eight and a half years before he was arrested and brought to trial. Id. at 2690. The primary issue before the Court was whether, in view of this extraordinary delay, the defendant had to show "precisely how he was prejudiced by the delay between his indictment and trial." Id. at 2692. Thus, the Court had no occasion to revisit MacDonald's holding as to the significance vel non of delay during a time when no indictment or charges are pending and no restrictions have been imposed on the person's liberty. Nevertheless, the Court reaffirmed the teaching of MacDonald and Loud Hawk "that the Sixth Amendment right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution . . . triggered by arrest, indictment, or other official accusation. . . ." Id.
It remains for us to consider whether, under the multi-factored analysis of Barker v. Wingo, supra note 1, the trial Judge correctly concluded that the fifteen-month delay at issue here did not violate appellants' Sixth Amendment right. We hold that she did. Moreover, addressing an argument appellants did not raise in the trial court, we reject the claim that the full twenty-four months between the original indictment and trial violated their Due Process right under the Fifth Amendment. United States v. Lovasco, supra; Robinson v. United States, 478 A.2d 1065, 1066 (D.C. 1984). *fn5
MACK, Senior Judge, Dissenting: Putting aside (or rather rejecting) appellants' argument that successive reindictments have raised an issue of due process, my colleagues today broadly announce a "bright line" rule that the guarantee of a Sixth Amendment right to a speedy trial does not encompass periods of time between the dismissal of an indictment and a subsequent indictment on the same charge. In holding that a prior decision of our court in Branch v. United States, 372 A.2d 998 (D.C. 1977), has been effectively overruled by the rationale of the United States Supreme Court in United States v. MacDonald, 456 U.S. 1, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1982), my colleagues do not find it necessary to recite facts.
I understand the allure of the majority's no-nonsense analysis in this case, but to state the obvious, the longevity and/or application of any legal principle cannot be divorced entirely from facts. *fn1 At some point, successive reindictments solely for the convenience of the prosecution must be found to offend due process *fn2 or speedy trial protections. *fn3 Therefore, I want to go on record as saying that I can easily identify and describe what I believe to be significant distinctions between the facts presented in the consolidated case before us (see note 1, (supra) ) and those facing the Supreme Court in the speedy trial cases cited by the majority, Doggett, supra note 1 (eight-year delay between indictment and prosecution); United States v. Loud Hawk, 474 U.S. 302, 88 L. Ed. 2d 640, 106 S. Ct. 648 (1986) (bulk of delay due to slow movement through the courts of government's good faith interlocutory appeal); and MacDonald, supra (initial military charges dismissed when prosecutor concluded that allegations were untrue; indictment on civilian charges brought after further investigation). However, my intent in writing separately is not so much to voice a Dissent as to raise questions of notice and orderly process which impact upon the practice of law in this unique jurisdiction.
My brethren who join in the majority conclude that the Supreme Court's decision in MacDonald overruled that portion of this court's holding in Branch, supra, in which we emphatically stated that periods between dismissal and reindictment on the same charges are counted for speedy trial purposes. In reaching this Conclusion, today's majority references our decision in Robinson, supra note 2, a case involving pre-indictment delay, which cited MacDonald to support the Conclusion that the delay between dismissal of initial charges and actual ...