United States v. Albert E. Mills. United States of America v. Kenneth B. Wonson

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge SILBERMAN.

Dissenting opinion filed by Circuit Judge SENTELLE, in which Chief Judge MIKVA and Circuit Judges WALD, HARRY T. EDWARDS and RUTH BADER GINSBURG join.

STEPHEN F. WILLIAMS, Circuit Judge:

We held in United States v. Robertson, 810 F.2d 254 (D.C.Cir.1987), that an arrest followed by the filing of charges under District of Columbia law does not constitute an “arrest” triggering the Speedy Trial Act’s requirement that a federal indictment be filed within 30 days from the defendant’s arrest “in connection with” the charge in the indictment. See 18 U.S.C. § 3161(b) (1988). After a panel applied Robertson to the present case, United States v. Mills, 925 F.2d 455, 460 (D.C.Cir.1991), we granted rehearing en banc in order to consider whether Robertson should be overruled or modified. We adhere to Robertson but somewhat modify our statutory analysis.

Appellees Albert Mills and Kenneth Won-son were arrested in September 1988 and April 1989, respectively.¹ They were charged with possession with intent to distribute cocaine in violation of the D.C.Code and other related D.C. offenses and were indicted in the D.C. Superior Court. While their cases were pending, the Bush Administration announced a new policy for fighting drugs in the District of Columbia; the policy called for prosecution of more drug cases in federal district court (rather than Superior Court) to take advantage of the tougher federal sentences. Accordingly, the U.S. Attorney’s Office reviewed pending Superior Court felony drug cases for possible transfer to federal court. The U.S. Attorney selected appellees’ cases for transfer and secured their indictment in federal court — far more than 30 days after the D.C. arrests (seven months in Mills’s case, a year in Wonson’s). The district court dismissed the indictments on various grounds, including Speedy Trial Act violations. It treated the defendants’ initial arrests in connection with the D.C. charges as “arrest[s]” within the meaning of 18 U.S.C. § 3161(b), and thus found a violation of the 30-day requirement. See United States v. Roberts, 726 F.Supp. 1359, 1371-72 (D.D.C.1989).²

On appeal by the government, the panel reversed on the basis of our decision in Robertson. It of course refused to overturn Robertson, and it also rejected appellees’ suggestion that Robertson be limited to the special situation that prevailed there — a D.C. charge (murder) for which the defendant could not have been indicted in federal court. Mills, 925 F.2d at 461. And it rejected appellees’ argument that these transfers, unlike the one in Robertson, involved wrongful prosecutorial “manipulation”, noting that it found “absolutely nothing in the record to support this charge.” Id. at 460-61.³

The Speedy Trial Act provision at issue here provides:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

18 U.S.C. § 3161(b) (emphasis added). The Act defines “offense” as “any Federal criminal offense”. 18 U.S.C. § 3172.

Thus the trigger mechanism is the arrest or service of summons “in connection with such charges.” The sole possible referent for “such charges” is the “offense” charged in the indictment, which because of the definition must be a federal offense. Under the most natural reading, then, an arrest starts the clock only if it is “in connection with” federal charges. If, as was the case here, the arrest was accompanied by a complaint charging violations of the D.C. (not U.S.) Code, it was not “in connection with” federal charges.⁴

The remedial provision of the Speedy Trial Act also suggests that the Act is triggered only by arrests that are accompanied by the filing of a federal complaint against the defendant. That provision states:

If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) ..., such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.

18 U.S.C. § 3162(a)(1) (emphasis added). As § 3162(a)(1) does not apply where an arrest has occurred but no charges have been filed, the term “arrest” in § 3161(b) “ ‘must be construed as an arrest where the person is charged with an offense.’ ” United States v. Solomon, 679 F.2d 1246, 1252 (8th Cir.1982) (quoting United States v. Jones, 676 F.2d 327, 331 (8th Cir.1982)). There appears to be undisputed support among the circuits for this reading of the interplay between §§ 3161(b) and 3162(a)(1). See, e.g., United States v. Summers, 894 F.2d 90, 91 (4th Cir.1990); United States v. Bloom, 865 F.2d 485, 489-90 (2d Cir.1989); United States v. Lee, 818 F.2d 302, 305 (4th Cir.1987); United States v. Alfarano, 706 F.2d 739, 741 (6th Cir.1983); United States v. Candelaria, 704 F.2d 1129, 1131-32 (9th Cir.1983); United States v. Varella, 692 F.2d 1352, 1357-58 (11th Cir.1982).⁵ Again, of course, “offense” means “any Federal criminal offense” under § 3172. Thus, if a District of Columbia arrest were understood to start the clock there would be no remedy without a wrench of the statutory language.

Appellees understandably do not directly attack the proposition that an arrest can trigger § 3161(b) only if accompanied by a formal charge. But they insist that a District of Columbia charge is enough. This of course disregards § 3172’s definition of “offense” as a “Federal criminal offense” and the fact that “such charges” in § 3161(b) must refer back to the type of offense — federal—charged in the information or indictment. It is also inconsistent with the undisputed rule that a state arrest does not trigger the Speedy Trial Act’s clock, even if the arrest is for conduct that is the basis of a subsequent indictment for a federal offense. See, e.g., United States v. Charles, 883 F.2d 355, 356 (5th Cir.1989); United States v. Janik, 723 F.2d 537, 542 (7th Cir.1983); United States v. Carlson, 697 F.2d 231, 235 (8th Cir.1983); United States v. Adams, 694 F.2d 200, 202 (9th Cir.1982); United States v. Iaquinta, 674 F.2d 260, 264 (4th Cir.1982); United States v. Mejias, 552 F.2d 435, 441 (2d Cir.1977).

Appellees and amici attempt to distinguish the state arrest rule on the ground that it is based upon notions of federalism and “dual sovereignty”. The argument has two components: one conceptual (the identity of sovereigns), and the other functional (the identity of prosecutors, namely the United States Attorney for the District of Columbia). Mejias, the first case addressing a state arrest ultimately followed by a federal indictment, indeed relied in part on the state’s separate sovereignty. 552 F.2d at 441. But the Mejias court’s reliance on separate sovereignty is questionable; under the Sixth Amendment, courts have often treated state arrests as triggering the Amendment for purposes of a later federal charge for the same conduct. See Dissent at 1204. In fact, the Second Circuit also invoked a practical consideration that applies as much to the District as to states — the likelihood of immediate protective federal indictments, clogging the federal courts in contravention of the Act’s purpose. See 552 F.2d at 442. Moreover, as we have seen, at pp. 1188-89 above, the most direct explanation of the state arrest rule is congressional intent, as manifested in the terms of the Act.

The dissent takes the sovereignty concept still further, arguing that the statutory term “Federal criminal offense” encompasses any D.C. offense that parallels a federal one. See Dissent at 1195-96. If Congress had been writing the Speedy Trial Act on a clean slate, such a construction might be plausible. But Congress’s allocation of jurisdiction between the D.C. Superior court and the U.S. district court— adopted just four years before the Speedy Trial Act — uses a vocabulary in which “Federal offense” is plainly limited to offenses against federal laws in the narrower sense of ones applicable nationwide. In the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473, Congress gave the U.S. district court for the District of Columbia jurisdiction over “[a]ny offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or indictment with any Federal offense." See id. § 111 (codified at D.C.Code § 11-502(3)) (emphasis added). In this context it seems virtually inconceivable that Congress could have intended the two classes (D.C. only, “Federal”) to overlap, for otherwise many of the D.C. offenses that the section brings within federal jurisdiction would already have been there. The legislative history confirms that reading. See, e.g., H.R.Rep. No. 907, 91st Cong., 2d Sess. 33 (1970); see also United States v. Shepard, 515 F.2d 1324, 1329-30 (D.C.Cir.1975) (drawing same distinction).⁶ It seems most improbable that Congress adopted a completely different nomenclature when it addressed a kindred problem four years later.

Congress also expressly provided in the 1970 Court Reform Act that for purposes of the general jurisdiction of the federal courts references to “laws of the United States or Acts of Congress” do not encompass “laws applicable exclusively to the District of Columbia”, see 28 U.S.C. § 1366,⁷ and added language to other jurisdictional statutes to clarify that D.C. would be treated as a state for those purposes: 28 U.S.C. § 2113 (for purposes of Supreme Court jurisdiction, references to “state courts” include District of Columbia Court of Appeals); 28 U.S.C. § 1451 (for purposes of removal jurisdiction, references to “state court” include Superior Court and to “state” include D.C.); 28 U.S.C. § 1257 (“highest court of a State” includes D.C. Court of Appeals). See 84 Stat. 590-91. Accordingly, in construing the phrase “statute of the United States” in former 28 U.S.C. § 1257(1) (1970), which required the Supreme Court to review decisions holding such statutes invalid, to exclude the D.C.Code, the Court explicitly followed “the analogy of the local D.C. courts to state courts drawn by Congress in the 1970 [Court Reform] Act”. Key v. Doyle, 434 U.S. 59, 68, 98 S.C. 280, 285, 54 L.Ed.2d 238 (1977).⁸ And we have interpreted the general federal question statute, 28 U.S.C. § 1331, as if D.C. were a state. See, e.g., Dimond v. District of Columbia, 792 F.2d 179, 188 (D.C.Cir.1986) (applying pendent jurisdiction analysis to claims arising under D.C. law).

Finally, as the Dissent recognizes, a natural consequence of its reading of “federal” would be the application of the Speedy Trial Act (directly) to all charges in D.C. Superior Court that parallel a possible federal charge. But Congress specifically considered and rejected the idea of applying the Speedy Trial Act to the Superior Court itself. It did so precisely to avoid undue federal interference with D.C. affairs, and thus to accommodate two related trends: (1) increasing political autonomy for D.C., which was to “have popularly-elected officials who will have a legitimate stake in decisions affecting community conditions, particularly with respect to the control of crime and the apprehension and punishment of criminals”; and (2) the “trend of Federal disengagement from District of Columbia judicial and court administration affairs”. H.R.Rep. No. 1508, 93d Cong., 2d Sess. 48, reprinted in 1974 U.S.C.C.A.N. at 7401, 7440. It explicitly noted the 1970 Court Reform Act as a prime source of these developments. Id.

Indeed, under the logic of the dissent’s theory, even state charges involving federally criminal conduct would trigger the Act, in contrast to the long and unbroken line of contrary decisions. The Dissent sidesteps this consequence by assuming that distinctions of dual and unified sovereignty were uppermost in Congress’s thoughts, see Dissent at 1196-97, but the assumption is belied by the drafters’ evident and exclusive focus on the trend toward increased political autonomy for the District. And, rather than address the meaning that Congress gave the word “Federal” in related legislation that was explicitly noted in the drafting of the Speedy Trial Act, the Dissent appears to rest largely on the constitutional status of the District and congressional treatment of it in unrelated contexts. See Dissent at 1198-99 (discussing All Writs Act, Anti-Injunction Act, double jeopardy consequences of prosecutions under U.S. and D.C.Code provisions).

On this record, then, we find no basis whatever for concluding that Congress meant § 3172’s reference to “Federal criminal offense” to include D.C. offenses when they happened to encompass conduct made criminal by federal law. Instead, Congress hewed to the course set four years earlier, treating the District the same as the states.

To refute these inferences as to congressional intent, amici suggest that the combination of D.C. and federal prosecutor in the person of the U.S. Attorney creates a unique practical hazard: under Robertson the U.S. Attorney can transfer cases to the district court “in order to avoid an anticipated unfavorable evidentiary or suppression ruling, or even to effect a unilateral ‘continuance’ of a scheduled trial date”. Brief of Amici Curiae at 12. But the eases make clear that a U.S. Attorney cooperating with state authorities can do the same. In Mejias itself, for example, the defendants were arrested by a team of state and federal officers. They were initially prosecuted on state drug charges; when New York State prosecutors lost a suppression motion decided under the New York Constitution’s version of the Fourth Amendment, the state indictments were dropped and the cases were transferred to the federal district court. See Mejias, 552 F.2d at 440-41. In United States v. Lai Ming Tanu, 589 F.2d 82 (2d Cir.1978), the prosecutions were the product of a joint state-federal undercover operation. The defendants were first charged in state court in order to take advantage of heavier sentences, but the state court eventually dismissed the indictment against defendant Tanu on Sixth Amendment and state statutory speedy trial grounds. See id. at 84. Yet the Second Circuit held that the original state arrest did not trigger § 3161(b)’s 30-day clock. Thus the state arrest rule originated in a case where the federal prosecution served as a backstop to an aborted state proceeding and has since been applied in similar cases. So the prosecutor’s ability to use the state arrest rule for tactical advantage provides no distinction.

Mejias and Lai Ming Tanu also illustrate the now well-established principle that a state arrest does not start the clock no matter how extensive the federal involvement in the original arrest. See also Adams, 694 F.2d at 202 (“regardless of the degree of federal involvement in a state investigation and arrest, only a federal arrest will trigger the running of the time period set forth in 18 U.S.C. § 3161(b)”) (emphasis in original); Iaquinta, 674 F.2d at 267-68 (noting that rule applies even where federal involvement in joint investigation was “extensive” or “substantial”); cf. United States v. Manuel, 706 F.2d 908, 914-15 (9th Cir.1983) (cooperation between federal and tribal authorities does not transform tribal arrest into federal arrest).

Appellees also argue that our reading of the Act gives the U.S. Attorney an unfair tactical advantage, on the theory that it enables him to “park” cases in Superior Court to avoid § 3161(b)’s strict 30-day clock. If a defendant showed that the U.S. Attorney deliberately arrested him on D.C. charges and secured a Superior Court indictment in order to gain time to gather additional evidence for a federal prosecution, he might have a valid due process claim for pre-indictment delay. See Mills, 925 F.2d at 464. As previously noted, however, the panel found that there was no evidence here that the U.S. Attorney made transfer decisions to evade the strictures of the Act. See id. at 460-61; see also Affidavit of Charles J. Harkins, Jr., reprinted in United States v. Holland, 729 F.Supp. 125, 134-35 (D.D.C.1990) (Assistant U.S. Attorney asserts that in making transfer recommendations he did not consider procedural history, plea posture, or amount of time a case had been pending for speedy trial purposes).

The special role of the U.S. Attorney is, of course, an implementation of the concept of unified sovereignty. Appellees see support for their position in that conceptual unity. As the Act is intended to “give real meaning” to the Sixth Amendment’s guarantee, H.R.Rep. No. 1508 at 11, reprinted in 1974 U.S.C.C.A.N. at 7404, they argue that it should receive a parallel construction. And the application of the Amendment to pre-indictment delay appears to depend in part on arrest and indictment having been made by the same sovereign. See United States v. MacDonald, 456 U.S. 1, 10 n. 11, 102 S.Ct. 1497, 1503 n. 11, 71 L.Ed.2d 696 (1982) (dicta); Wayne R. La-Fave & Jerold H. Israel, Criminal Procedure 686 (1985); but see Dissent at 1204 (discussing circumstances under which a state arrest triggers Sixth Amendment protection for later federal charge).

But the Act is not intended to track the Sixth Amendment. Within the set of cases covered, it establishes bright-line rules assuring minimum speed, while at the same time preserving defendants’ Sixth Amendment claims in full. See 18 U.S.C. § 3174. And as MacDonald post-dates the passage of the Speedy Trial Act, it is hard to see how its emphasis on issues of sovereignty could have informed congressional intent.⁹

Moreover, although the goal of giving the Act an interpretation parallel to the Sixth Amendment is doubtless of value, the District’s unified sovereignty in some ways militates against appellees’ claim, as it affords defendants here advantages not shared by state defendants. First, by appellees’ own contention, a District arrest will more often start the running of Sixth Amendment speedy trial rights than a similar state arrest. The argument that the Robertson rule gives the U.S. Attorney unlimited discretion to transfer cases from Superior Court “months, even years” after the initial arrest, Brief of Amici Curiae at 12, ignores the Sixth Amendment’s role. Indeed, the panel remanded the present case to the district court for consideration of the constitutional claim, see Mills, 925 F.2d at 465-66, a remand we here affirm.

Defendants also receive greater double jeopardy protection in the District: successive D.C. and federal prosecutions for the same conduct are subject to the bar on double jeopardy, see Robertson, 810 F.2d at 257; United States v. Alston, 609 F.2d 531, 537 n. 31 (D.C.Cir.1979) (dicta), whereas successive state and federal prosecutions are not, see Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 132-33, 79 S.Ct. 676, 682-83, 3 L.Ed.2d 684 (1959).

Finally, the legislative history explaining Congress’s decision not to apply the Speedy Trial Act to the Superior Court itself lends inferential support to our decision. The Committee Report noted that the lack of a speedy trial statute for the Superior Court might encourage the U.S. Attorney to engage in “forum shopping”, given his overlapping D.C. and federal jurisdiction, but the Report suggested that if this became a problem “Congress would have an obligation ... to remedy the situation through future legislation.” H.R.Rep. No. 1508 at 49, reprinted in 1974 U.S.C.C.A.N. at 7441 (emphasis added). Although the specific congressional decision was simply that the Act as a whole should not apply to Superior Court cases, the legislative history indicates recognition of the U.S. Attorney’s special role, recognition that did not sway Congress from adopting language in § 3161(b) that addresses solely federal complaints and their attendant arrests. Appellees would have us remedy the “forum shopping” that might occur in some transfer cases by (in effect) applying the Act to Superior Court cases later transferred to federal court. That is part of the more general problem that Congress reserved to itself. The case is in this respect similar to Public Citizen v. Young, 831 F.2d 1108 (D.C.Cir.1987), where the legislative history revealed congressional recognition of one possible change in scientific presuppositions and an expectation that Congress would address the change if it occurred. There wé inferred an intent to handle related but different changes in scientific understanding the same way. See id. at 1115-16, 1117-18. We find the same inference appropriate here.

Accordingly, we reaffirm Robertson and hold that only an arrest in connection with federal charges triggers § 3161(b) of the Speedy Trial Act. We remand the cases to the district court for it to consider defendants’ Sixth Amendment claims. See Mills, 925 F.2d at 464-65.

Reversed and remanded.

1 . The panel opinion presented the facts in detail, see Mills, 925 F.2d at 457-59; here we review them only briefly.

2 . The district court also dismissed a pending federal indictment against Mills's co-defendant, Vernon Holland, whose case had also been transferred from the Superior Court. United States v. Holland, 729 F.Supp. 125 (D.D.C.1990). Holland died after the appeals were taken. On remand, the judgment as to Holland should be vacated as moot.

3 .The panel also rejected the defendants' due process arguments, see Mills, 925 F.2d at 461-64, and remanded the cases to the district court for it to consider whether the transfer of these cases violated the defendants' Sixth Amendment speedy trial rights, id. at 464-65. Our opinion here does not disturb those holdings.

4 . Our reading of the Act is consistent with the construction of § 3161(b) made by the U.S. District Court for the District of Columbia (shortly after the Act’s passage) when it promulgated a speedy trial plan in accordance with 18 U.S.C. § 3165. Section 4 of the plan implements § 3161(b) and specifically provides that:

A charge of violation of the District of Columbia Code is not a federal charge ... and the time limits of this rule shall not begin to run with respect to a person charged in the Superior Court of the District of Columbia with a District of Columbia Code offense until such person is charged in this [district] court.

Local Rule 306(4)(c), Speedy Trial Plan of the United States District Court for the District of Columbia. Even though the matter is a pure issue of law, it might be appropriate to accord some deference to the district court’s contemporaneous interpretation, as it was submitted both to the Administrative Office of the United States Courts and to Congress, 18 U.S.C. §§ 3165(c) & 3167, and resolves an issue unique to this district. Cf. United States v. Dixon, 446 F.Supp. 58, 62 (D.D.C.1978) (noting congressional grant of "substantial discretion” to district courts). We do not, however, rest our decision on such deference.

5 . The Federal Rules of Criminal Procedure also support this interpretation of the statute, for they contemplate that arrested individuals be charged in a complaint detailing “the essential facts constituting the offense charged". Fed.R.Crim.P. 3. The complaint must be issued prior to arrest if it serves as the basis for an arrest warrant, Fed.R.Crim.P. 4(a), or at the initial appearance before the magistrate if the arrest is conducted without a warrant, see Fed.R.Crim.P. 5(a) (requiring that "complaint shall be filed forthwith” in such cases). Of course the Fourth Amendment requires the prompt filing of charges if the subject is not released. Cf. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975) (Fourth Amendment requires prompt judicial determination of probable cause as “prerequisite to extended restraint of liberty following arrest” without warrant); see also County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 1670, 114 L.Ed.2d 49 (1991) (probable cause determinations within 48 hours of arrest satisfy Gerstein).

6 . The background assumption that "federal offenses" do not encompass purely District of Columbia crimes is also manifest in 18 U.S.C. § 3231, which provides that "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.”

7 . The Supreme Court has refused to give this provision any negative implication. See Key v. Doyle, 434 U.S. 59, 67 n. 12, 98 S.Ct. 280, 284 n. 12, 54 L.Ed.2d 238 (1977).

8 . While in Palmore v. United States, 411 U.S. 389, 395-96, 93 S.Ct. 1670, 1675-76, 36 L.Ed.2d 342 (1973), the Court declined to treat D.C.Code provisions as "statute[s] of any state” within the meaning of former § 1257(2) (providing appellate jurisdiction over decisions rejecting a federal law challenge to a state statute), the decision is completely consistent with our conclusion that D.C. code offenses are not "federal offenses". In fact, the Palmore court held that defendants charged with D.C.Code offenses can be treated like ”citizen[s] of any of the 50 states when charged with a violation of state criminal law" in that they are not guaranteed trial before an Article III judge for local offenses. 411 U.S. at 390-91, 397-410, 93 S.Ct. at 1672-73, 1676-83. And the Court relied in part on the 1970 Court Reform Act, noting its goal of “establish[ing] an entirely new court system with functions essentially similar to those of the local courts found in the 50 States of the Union with responsibility for trying and deciding those distinctively local controversies that arise under local law, including local criminal laws having little, if any, impact beyond the local jurisdiction.” Id. at 409, 93 S.Ct. at 1682 (citing legislative history).

9 . The dissent makes a puzzling suggestion that our decision deprives District defendants and citizens of the benefits of speedy trial legislation. See Dissent at 1200-01. But it was Congress’s decision not to apply the federal statute to Superior court, see above at 1191, leaving the District free, under its home rule powers, District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, 87 Stat. 774 (1973), to follow the states that have chosen to adopt special rules.