United States v. David E. Douglas A/K/A David D. Mitchell

MacKINNON, Circuit Judge:

The record now comes before us supplemented following our remand¹ for the taking of additional testimony on the claim that appellant was denied his “right to a speedy . . . trial.”² Specifically, we requested further details on three points: (1) the circumstances between November 11, 1971 and March 1, 1972 as to the appointment of counsel; (2) the circumstances of the parole revocation proceeding and whether appellant had counsel in those proceedings and (3) the extent of the unavailability of the complaining witness between March 17, 1972 and August 31, 1972 when appellant was tried. We find no error in the trial and affirm the judgment.

I

Appellant was arrested on August 28, 1971 for several alleged offenses. The same day an attorney, Mr. Kapinus, was appointed under the Criminal Justice Act to represent him in the Superior Court and the preliminary hearing was continued until September 2, 1971. On that day the preliminary hearing was held as scheduled and appellant was “Held for action of the Grand Jury.” Bond was set at $5,000. The courts at that time were in a transition stage under the District of Columbia Court Reorganization Act (Tr. I, 42) but the United States District Court still had jurisdiction of appellant’s alleged offenses.

On November 4, 1971, two months after the preliminary hearing, a four count indictment was returned charging appellant with:

(1) First degree burglary (D.C.Code § 22-1801(a));

(2) Petit larceny (D.C.Code § 22-2202);

(3) Unauthorized use of motor vehicle (D.C.Code § 22-2203);

(4) Grand larceny (D.C.Code § 22-220Í).

On November 11, 1971, U. S. Magistrate Burnett appointed Bettie Benjamin “counsel to defend” appellant and the case was assigned to Judge Bryant under regular calendar procedures. Miss Benjamin received a notice of her appointment dated November 15, 1971 accompanied by a notice that the arraignment of her client was scheduled for November 19, 1971. Prior to the scheduled arraignment Miss Benjamin went to interview her client. Concerning such event she testified:

Q Do you recall what happened at that time?

A At that time I came in and went into the lockup to interview Mr. David Douglas. When I went into the lockup, he asked me where was his attorney. He indicated that he had an attorney who had been appointed to represent him in the Superior Court. And he wanted that attorney to represent him for this matter.

-X- *- * * * *

Q Did he tell you the name of that attorney ?

A He was unable to fully articulate the name of that attorney, and I did not write it down.

Q All right. Did you participate in the arraignment itself that was held that day?

A No. I did not.

Q Can you explain the circumstances of that?

A When the matter was called, I represented to Judge Bryant that Mr. Douglas wanted to be represented by the attorney who had represented him in the Superior Court. At that time, as best I can recall, Judge Bryant appointed an attorney name [sic] K-a-p-i-n-u-s to represent the defendant for arraignment only.

Q That is Mr. Kapinus. Did he, to your recollection represent the defendant at arraignment on November 19th?

A Yes, he did.

Tr. II, 52-53. Mr. Kapinus also testified as to his impressions of the circumstances at the arraignment on November 19, 1971:

A . And as I recall, the arraignment had been concluded. The Court indicated that counsel would be notified, and I left assuming that I would be appointed to the case but apparently his other attorney’s name appeared on some record and consequently she was brought into the case to follow the proceeding on until the end.

Q Did you represent Mr. Douglas in any fashion in this case after that day?

A No.

Tr. Ill, 86-87 (emphasis added). Mr. Kapinus did, however, represent appellant as his counsel throughout his entire parole revocation proceeding which was then underway and which continued well into 1972. The revocation hearing was held on March 17, 1974, and the attempted revocation of parole was based on the alleged commission of the offenses on August 28th for which appellant was indicted.

Subsequently Miss Benjamin received a notice from the Clerk’s office dated February 25, 1972, informing her of a status call of the case on March 1, 1972. (Tr. II, 53) In the interim she had assumed she no longer represented appellant since she had informed the court that appellant “wanted [Kapinus] . to represent him for this matter” (Tr. II, 53), and had concluded in line with Kapinus’ assumption following the arraignment “that [he] would be appointed to the case” (Tr. Ill, 87). Nevertheless, Miss Benjamin appeared in court pursuant to the notice, made an oral motion to vacate her appointment and then the court appointed Matthew Black to represent appellant (Tr. II, 53). One possible explanation for not appointing Mr. Kapinus was that he was a possible witness at the trial, since the defense was intoxication and Kapinus had observed appellant’s condition early in the morning of August 28th (Tr. I, 42). Thereafter, Mr. Black represented appellant as his trial counsel.

It is significant that the failure of counsel to act for appellant in the inter-1m between the date of his preliminary hearing, his arraignment on the indictment on November 19, 1971, and the status call on March 1, 1972, did not cause any delay in the trial of the case. Obviously, the trial could not have taken place in September or October, even if the defendant had been indicted earlier, because of the status of the judge’s calendar. Also, from October 1971 through February 1972 Judge Bryant was engaged in trying the highly important United Mine Workers Election Case (Tr. I, 44-45). As soon as that trial finished the judge promptly conducted a status call on March 3, 1972, continued this case to March 10, 1972, and set the trial for March 17, 1972. This date was agreeable to all parties. No prejudice was claimed up to this point.

However, the case was not tried on March 17th because of the enforced absence of the complaining witness, Miss Kenna, whose apartment had been burglarized. When the U.S. Attorney sought to notify her of the trial date he discovered that she had left Washington for Portland, Oregon, on February 1, 1972, because of a serious accident in her family. Her father had been killed and her mother remained in critical condition for a considerable period of time. The mother’s injuries included the loss of an eye, a broken jaw, a broken back and internal injuries. There was no other member of the family to assist in the care of her mother and Miss Kenna also had to wind up her father’s business and estate. Such obligations prevented Miss Kenna from returning to work for 8 months. She testified that through April it was impossible to come back (Tr. I, 7-18). She did spend 2 days in Washington in June, which time was completely devoted to getting her belongings, and she did not notify the U.S. Attorney of her presence here. Appellant’s counsel, Mr. Black, was also away on vacation from April 21, 1972, to May 15, 1972 (Tr. I, 40).

So with all these complications the parties attempted on June 14, 1972, to fit the case into Judge Bryant’s crowded calendar for trial on July 10, 1972 (Tr. I, 36). This date eventually proved to be unavailable when the judge was called out of the city to attend a meeting of a national judicial committee upon which he served. The committee met from July 8 to July 11, 1972 (Tr. I, 44).

Thereafter, the judge was scheduled for vacation in August, appellant filed a motion to reassign the case, and the judge returned from vacation to conduct the trial on August 31, 1972.

It is apparent from the foregoing that the trial delay, which was not greatly excessive, was initially caused by appellant’s confusion of his counsel situation and thereafter by a combination of the heavy calendar of the judge and the necessity of trying prior scheduled cases, the impossibility for a long period of securing the attendance of the complaining witness, the judge’s commitment to other official duties, and to a minor extent the absence on vacation of appellant’s counsel.

Such facts are insufficient to constitute a denial of one’s right to a speedy trial under the standards laid down by Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). They are clearly insufficient in the absence of any prejudice and we find no prejudice. Appellant did claim that he had “lost contact with his witnesses and potential witness” because of the delay; but at trial he was able to call all witnesses that he had initially named and it is obvious that there is no merit in this portion of his claim.

Appellant also contends that were his trial to have been speedy in fact, he would be serving the sentences in the instant case more nearly concurrent with the sentence imposed in his prior conviction. United States v. Barnes [477 F.2d 450, D.C.D.C.], D.C.Cir. No. 72-1731, decided April 6, 1973. (App.Br. p. 26)

The validity of this contention depends upon his sentence in this case being concurrent with his earlier sentence in 1967 to 8 years for burglary (Tr. March 3, 1973, p. 3). This claim is erroneous, however, because the sentences in this case (No. 72-2150), while concurrent with those adjudged on each of the four counts of the indictment, were consecutive to the prior sentence. The Judgment and Commitment filed November 10, 1972 in Criminal No. 1957-71 (U.S. District Court) provides:

It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of

Not less than Two (2) Years nor more than Seven (7) Years on Count 1;

One (1) Year on Count 2;

Not less than Twenty (20) Months nór more than Five (5) Years on Count 3;

Not less than Twenty (20) Months nor more than Five (5) Years on Count 4, said sentences by the counts to run concurrently.

The Judgment and Commitment is consistent with the oral sentence imposed from the bench.³ Under such circumstances the D.C.Code provides that the sentences imposed run consecutively and not concurrently to the 1967 sentence:

A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not. (July 29, 1970, Pub.L. 91-358, § 210(a), title II, 84 Stat. 610.)

D.C.Code § 23-112 (1973).

That the judge intended the sentences on each count in this case to be concurrent with each other and consecutive to the prior burglary sentence, and that appellant so understood the sentences, is apparent from the following colloquy between court and appellant’s counsel:

THE COURT: He was sentenced to concurrent sentences, but—

MR. CAHILL: But by the count in your case.

THE COURT: By the count, but not concurrent with the other.

MR. CAHILL: Not concurrent with the other. If it had been concurrent with the other, of course, David would have been eligible for release on February 9th rather than next fall. The problem was, of course, being concurrent by counts and not being concurrent by the two sentences. We had concurrency lost in connection with speedy trial appeal. That is the crux of my problem.

Tr. Ill, 100-101.

We conclude that appellant had a fair trial and that he was not prejudiced by a denial of any of his constitutional rights.

Affirmed.

1 . United States v. Douglas, 160 U.S.App.D.C. 7, 488 F.2d 1331 (1973).

2 . U.S.Const. amend. VI.

3 . THE COURT: On Count. 1, the Court sentences you to not less than two or more than seven years. On Count 2, the Court sentences you to one year. On Count 3, the Court sentences you to serve not less than twenty months or more than five years. On Count 4, the Court sentences you to serve not less than twenty months or five years. These sentences are to run concurrently. The Court recommends a federal institution for your incarceration.

Tr. Nov. 10,1972, pp. 4-5.