On Appeal from the United States District Court for the District of the Virgin Islands (St. Thomas); (D.C. Crim No. 82-00152).
BEFORE HUNTER, GARTH, and BECKER, Circuit Judges.
On this appeal, the Government as appellant argues that Andrew Burmingham, who had been charged with various criminal offenses under the Virgin Islands Code, had not been deprived of his right to a speedy trial, even though the Information charging him was filed in the Territorial Court on December 1, 1980 and some eighteen months later no trial had yet been had. The Territorial Court denied Burmingham's motion to dismiss the Information under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. and Federal Rule of Criminal Procedure 48(b). After a nonjury trial held in May, 1982, Burmingham was convicted on all four counts of the Information. On appeal to the district court this decision was reversed. We now vacate the order of the district court.
Appellee Andrew Burmingham was involved in a fight with one Selvin Joseph, in which Burmingham attacked Joseph with a machete. The only witness to this fight, aside from the two participants, was Ruth Joseph, formerly the girlfriend of Burmingham and now Selvin Joseph's wife. Both men were wounded and required hospital treatment. Burmingham was arrested on November 26, 1980. On December 1, 1980, the Government filed an Information in the Territorial Court. Burmingham was charged with three counts of third degree assault and one count of unlawful possession of a deadly weapon during the commission of a crime of violence, all in violation of Virgin Islands statutes. He was arraigned on December 9, and the case was subsequently set for trial on March 30, 1981.
On March 11, 1981, Burmingham moved for dismissal of the Information under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. and Fed. R. Crim. P. 48(b). The Territorial Court took Burmingham's motion for dismissal under advisement, along with other similar motions, in order to seek an in banc answer of that court to the question of whether the Speedy Trial Act was applicable to criminal proceedings in the Territorial Court. However, the Territorial Court never considered the question in banc.
Some thirteen months later, on April 16, 1982, the Territorial Court denied Burmingham's motion to dismiss the charges. Ironically, it was Burmingham's assertion of this purported statutory speedy trial claim that stretched the delay so that it exceeded eight months. LaFave & Israel, Criminal Procedure § 18.2, at 405 (quoting Joseph, Speedy Trial Rights in Application, 48 Fordham L. Rev. 611, 623 n.71 (1980).
In denying Burmingham's motion, the Territorial Court followed Government of the Virgin Islands v. Albert John Quetel, 18 V.I. 145 (Terr. Ct. 1982), which held the Speedy Trial Act inapplicable to Territorial Court proceedings. The Territorial Court went on to hold that dismissal pursuant to Rule 48(b) was not warranted. Applying the constitutional speedy trial analysis of Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, , 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the court concluded that:
Although there has been excessive delay in bringing the defendant to trial, and the reason for the delay is chargeable mostly to the court, these factors are substantially outweighed by the fact that the delay was both necessary and justifiable, by the defendant's failure to assert his right to a speedy trial, and particularly by the fact that the defendant has not been prejudiced by the delay.
Following the denial of his speedy trial motion, on May 14, 1982, Burmingham was tried in a bench trial and was convicted on all four counts.
On appeal to the district court, Burmingham for the first time raised a Sixth Amendment claim, while also pressing his Rule 48(b) and Speedy Trial Act claims. The district court applied the test of Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, to Burmingham's constitutional claim. Unlike the Territorial Court, the district court concluded that Burmingham had been denied his right to a speedy trial. By its order of February 27, 1985, the district court vacated ...