Opinion
Criminal No. 05-0004 (PLF).
May 10, 2005
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the motion of each of the defendants to dismiss the indictment on grounds that their Sixth Amendment right to a speedy trial has been denied and/or that their Fifth Amendment right to due process of law has been denied. The Court has reviewed the motion papers filed by each defendant, the attachments to defendant Hinson's motion, and the government's opposition, and has considered the arguments and representations made at oral argument on April 15, 2005.
I. BACKGROUND
Defendants Andre Hinson and Terry Williams were charged in an indictment, returned by a District Court grand jury on January 4, 2005, with a single count of unlawfully, knowingly and intentionally distributing a mixture and substance containing a detectable amount of cocaine base, also known as crack, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). The events relevant to their speedy trial and due process claims can be summarized as follows:
On January 29, 2004, defendants Andre Hinson and Terry Williams were arrested. They had their initial appearances in the District of Columbia Superior Court on January 30, 2004. Defendant Hinson was not detained in that case but in a separate, earlier case in which he was on probation; the new arrest constituted a violation of his probation. Defendant Williams was released on personal recognizance. On February 4, 2004, after a preliminary hearing, a D.C. Superior Court Magistrate dismissed the case against both Hinson and Williams, finding a lack of probable cause.
On February 11, 2004, both of the defendants were indicted by a Superior Court grand jury. Each was charged with one count of distribution of cocaine in violation of the D.C. Code as a result of the January 29, 2004 arrest. Arraignment was scheduled for February 16, 2004. At the arraignment, Williams pled not guilty to the indictment. Defendant Hinson was not present on February 16, 2004 because he was incarcerated outside the jurisdiction, serving time for a separate case. His lawyer requested that the government writ him into the District from FCI Petersburg. Hinson's arraignment was rescheduled for April 16, 2004.
On April 9, 2004, defendant Williams was arrested on a different and unrelated charge, and a D.C. Superior Court judge revoked his bond in the Superior Court cocaine case. Meanwhile, the government caused a writ to be issued to bring Hinson to Washington, D.C. Hinson was returned to Washington and was housed in the D.C. Jail. On April 16, 2004, the date of the arraignment, however, the court failed to issue a come up to have Hinson brought to court. The court rescheduled the arraignment for April 21, 2004. On April 21, 2004, Hinson was arraigned and returned to the D.C. Jail. A $500 cash bond was set for Williams. The bond was posted on April 27, 2004.
On May 28, 2004, a Superior Court judge held a status conference, but Williams' counsel failed to appear. The court held another status conference on June 2, 2004; Williams' counsel again failed to appear on that date. On June 3, 2004, a Superior Court judge issued a scheduling order notifying the parties and counsel of a status conference scheduled for June 16, 2004. At the status conference on June 16, Williams did not appear because he was in the hospital. The court set another status date for June 29, 2004. At the June 29, 2004 status conference, both defendants and all counsel were present. The court scheduled the trial for July 13, 2004.
On July 9, 2004, the government filed a motion to continue the trial date because the government had failed to have the drugs analyzed by a DEA chemist. Defendant Hinson's attorney opposed the motion for a continuance, while defendant Williams' attorney did not object. The court granted the motion, and a new trial date was set for September 21, 2004. On September 21, 2004, the defendants, their counsel, and government counsel all were ready for trial. The case was not tried that day, however, because no judge was available to try it. A new trial date was set for November 29, 2004.
On November 18, 2004, the government filed a motion to dismiss the Superior Court case. This motion was granted by a Superior Court judge the same day without a hearing and without awaiting responses from the defendants.
On January 4, 2005, a grand jury returned an indictment in this Court, charging the defendants with distribution of cocaine on January 29, 2004, in violation of the federal narcotics laws. The defendants were arraigned on January 13, 2005. On January 27, 2005, during a status conference, this Court set a briefing schedule and scheduled a motions hearing for April 15, 2005. None of the parties objected to the briefing schedule or the motions hearing date.
II. DISCUSSION
Based on the foregoing facts, the defendants argue that the numerous delays between the date of their original arrest on January 29, 2004 and the indictment and subsequent proceedings in this Court were caused by the government, that the government has offered no reason why it chose to dismiss the case in Superior Court after previously announcing it was ready for trial, and that the defendants were prejudiced by the delay of nearly eleven months between their arrests and the dismissal in Superior Court, the year-long delay between the arrests and their indictment in this Court, and the totality of the delay from January 29, 2004 until today. Mr. Hinson argues that he was prejudiced because he has suffered anxiety concerning this charge and because his liberty was restricted by his pretrial release with the condition of a 10:00 p.m. curfew. Mr. Williams argues that he was prejudiced because the same case has been processed three separate times and that, by prolonging the process, the government has substantially increased Williams' pretrial anxiety and concern and has exacerbated his health problems, including his heart trouble, high blood pressure and congestive heart failure. In addition, Williams argues that he was denied the opportunity to negotiate for a global disposition of this case and another case in Superior Court to which he pled guilty on December 6, 2004. Both defendants also argue that they have been prejudiced because it is very difficult to investigate a case this old.
The government responds that there is no evidence that it acted in bad faith, and that most of the delay was justified or driven by the normal processing of a multi-defendant criminal case and the glitches that sometimes naturally occur. The government concedes that it was negligent in not promptly ordering a narcotics analysis, but maintains that neither this failing nor any other was taken to gain, nor did it provide, a tactical advantage. Furthermore, it argues, the reasons for the decision made in November 2004 to dismiss the case in Superior Court and return an indictment in this Court are not relevant to the speedy trial or Fifth Amendment analyses. As for the argument that the delay has prejudiced the defendants in investigating the case and preparing their defenses, the government points out that the case is a simple one and that it is pure speculation, unsupported by any specific factual proffer, for defendants to say that they have been prejudiced in this case.
A. Sixth Amendment Speedy Trial
The government and the defendants agree that their Sixth Amendment speedy trial claim must be evaluated under the four factor test set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), which requires the Court to consider (1) the length of the delay, (2) the reasons for the delay, (3) the defendants' assertion of the right, and (4) any resulting prejudice. The government concedes that both defendants have timely asserted their speedy trial rights and that the length of the delay in this case — more than a year — triggers the Barker inquiry and shifts the burden to the government to justify the delay. See Doggett v. United States, 505 U.S. 647, 652 n. 1, 657-58 (1992); United States v. Lindsey, 47 F.3d 440, 443 (D.C. Cir. 1995).
With respect to the reasons for the delay, the Supreme Court inBarker stated that while a deliberate attempt to delay a trial "in order to hamper the defense should be weighted heavily against the government," "a more neutral reason such as negligence or overcrowded courts should be weighted less heavily." Barker v. Wingo, 407 U.S. at 531. This Court agrees with the government that defendants have provided no basis for their claim of bad faith or deliberate attempts to delay for tactical advantage. Rather, the reasons for most of the periods of delay between the defendants' arrests and their indictment in this Court (as well as proceedings following their indictment here) are neutral reasons. As indicated in the Background section of this Opinion, they mostly include the failure to have both defendants in court at the same time for a variety of reasons, the absence of Mr. Williams' lawyer on two occasions, the absence of Mr. Hinson from the jurisdiction and the time required to get him here. The two delays clearly attributable to the government relate to (1) its failure to order the narcotics analysis in a timely fashion, and (2) its decision in November 2004 to dismiss the case and present the evidence anew to a grand jury in this Court. The first can only be attributed to negligence or oversight and not to bad faith. The second, absent any specific basis for a finding of bad faith or prosecutorial misconduct, is a matter squarely within traditional notions of prosecutorial discretion. Furthermore, once the decision to reindict was made, the delay between November 18, 2004 and the re-indictment on January 4, 2005 was not inordinately long and must be characterized as neutral and not intentional.
The final question under Barker v. Wingo is whether the defendants have been prejudiced by the delay. The Supreme Court in Barker identified three interests relevant to this analysis: (1) whether a defendant has experienced oppressive pretrial incarceration, (2) whether a defendant has suffered anxiety and concern, and (3) whether there is evidence that the delay has impaired the ability of a defendant to mount a defense. See Barker v. Wingo, 407 U.S. at 532. With respect to the first factor, defendant Hinson has never been incarcerated as a result of his arrest for distributing cocaine on January 29, 2004, either by this Court or by the Superior Court. Defendant Williams was detained for approximately twelve days on the related Superior Court case but has not been detained by this Court. Both defendants claim anxiety, and defendant Williams argues that his health problems were exacerbated. The Court accepts the proffers that both have suffered anxiety; any defendant under the cloud of indictment presumably does. Neither defendant, however, has demonstrated how the delays in this case have hampered his ability to present a defense to the distribution charge. There is no factual support for the general, non-specific assertion that the defendants have been so impaired. The Court finds that the defendants have not suffered prejudice of a constitutional dimension as a result of delay.
B. Fifth Amendment Due Process
In United States v. Marion, 404 U.S. 307 (1971), the Supreme Court recognized that the primary vehicle for challenging the violations of one's rights because of trial delay is the Sixth Amendment, discussed above. Nevertheless, the Court also acknowledged that one's Fifth Amendment due process rights could be implicated by an inordinate delay between arrest, indictment and trial. Id. at 320. Generally, however, while the passage of time "may impair memory, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself," the applicable statute of limitations, not the Fifth Amendment, is the "primary guarantee" against bringing stale charges. Id. at 322-23. As the D.C. Circuit has explained, where the period of delay is well within the relevant statute of limitations, as it is here, the defendant bears a "substantial burden to demonstrate that he was prejudiced or that the government acted with impropriety." United States v. Pollack, 534 F.2d 964, 969 (D.C. Cir.), cert denied, 429 U.S. 924 (1976). The Due Process Clause requires dismissal only if it is shown that pre-indictment delay caused both "substantial prejudice" to a defendant's rights to a fair trial and that the delay was an intentional device used by the government to achieve a tactical advantage. See United States v. Marion, 404 U.S. at 324.
In this case, it is pure speculation to suggest that there are witnesses who could have been located but are now inaccessible or that evidence has been lost. Since "proof of prejudice is generally a necessary . . . element of a due process claim," and none has been presented here, there is no due process violation.United States v. Lovasco, 431 U.S. 783, 789 (1977).
For the foregoing reasons, it is hereby
ORDERED that [18] defendant Andre Hinson's motion to dismiss charging document is DENIED; and it is
FURTHER ORDERED that [21] defendant Terry Williams' motion to dismiss for lack of speedy trial is DENIED.
SO ORDERED.