# Speight v. United States

> District of Columbia Court of Appeals · November 28, 1989 · 569 A.2d 124

URL: https://www.frixlaw.com/law-library/cases/9704673

## Case

- **Full name:** Freeman SPEIGHT, Jr., Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** November 28, 1989
- **Citations:** 569 A.2d 124; 1989 D.C. App. LEXIS 245; 1989 WL 146326
- **Precedential status:** Published
- **Opinion:** Dissent by Rogers
- **Judges:** Rogers, Newman, Ferren, Belson, Terry, Steadman, Schwelb, Pryor, Mack
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704673

## How later opinions describe it (automated extraction)

- discussing Congress's concern with the increase in crimes committed during pretrial release

## Opinion text

ROGERS, Chief Judge,
with whom Associate Judge NEWMAN and Associate Judge, Retired, MACK join, dissenting:
Congress can, of course, decide that a person who is rearrested after being released on pre-trial release should be subjected to additional punishment. Such behavior violates the trial court’s explicit condition of pre-trial release that the defendant not commit another crime. This is the only rationale which withstands scrutiny when the first offense did not involve culpable conduct by the defendant or is otherwise non-punishable. 1 The issue in Speight’s case, however, is whether the imposition of such punishment in excess of the maximum penalty authorized upon conviction of the second offense, as well as the penalty provided for violating a condition of release, violates due process in the absence of any finding of culpability relating to the first offense. The plurality can cite no case or other authority upholding the constitutionality of such additional punishment, and the concurring opinion suggests an analogy to criminal contempt without acknowledging the constraints on the use of such power. In short, for the first time, a court upholds against a due process challenge the imposition of additional punishment for up to five years imprisonment for the status of having been arrested without any judicial determination that the first offense involved culpable conduct by the defendant.
The central issue raised by this case is whether the constitution requires the government to prove an additional sentencing factor beyond those expressly incorporated in the release offender statute. Essentially, the argument is that when a defendant asserts his legal innocence of the first offense, the statute is unconstitutional because in order to preserve individual rights and to prevent the arbitrary punishment of innocent conduct, the government must show there is some basis for the first offense, and in order to check governmental abuse of power, it must also demonstrate that constitutional methods were used; that is, a defendant at some point must be afforded a procedural means for asserting the lack of culpable conduct regarding the first offense, even if pretrial status is assumed to be only a sentencing factor.
Speight has highlighted the potential infirmity in D.C.Code § 23-1328 (1981) by contending that his additional five-years imprisonment, exceeding that which could otherwise be imposed, constitutes an infamous crime, by citing the dangers of inadequate grand jury review, and by asserting that increasing punishment for a past arrest not followed by conviction violates the *132 constitutional presumption of innocence under the due process clause. 2 On its face, as the plurality argues, the release offender statute, § 23-1328, does not punish the defendant solely for a prior arrest, which would deny due process, but instead punishes the defendant for committing the second offense while on pretrial release — an act to which the presumption of innocence . still applies in full force. It does not follow, however, that a conviction for the second offense can foreclose a defendant from asserting his legal innocence of the first offense, or the illegality of his first offense, as a circumstance that would preclude imposition of the release offender statute’s additional penalty. 3 Accordingly, I dissent.
I.
Congress had reason to believe that persons on pretrial release commit a large number of crimes, and could legitimately anticipate that larger penalties would increase deterrence. Nonetheless, the release offender statute is potentially over-broad because it can be used to punish innocent conduct. In those circumstances it will violate due process. By its terms the statute could be used to increase sentences by as much as five years even when there is no reasonable basis for the original arrest or the defendant’s fundamental constitutional rights have been violated. For example, under § 23-1328 it is conceivable that a completely innocent person on pretrial release for a crime he did not commit who is subsequently arrested would, because of his pretrial release status, be subject upon conviction of the second offense to an additional sentence of not less than one nor more than five years imprisonment when the second offense is a felony, and not less than ninety days nor more than one year imprisonment when the second offense is a misdemeanor. Under the statute such sentences must be imposed consecutive to any other sentence of imprisonment.
This characterization of an arrest and charge for the first offense as, under some circumstances, “innocent conduct” is based on more than a legal presumption. 4 In general, as with recidivist statutes, Congress may constitutionally single out a class, defined by past acts, and provide for potentially greater punishment for future crimes. In such instances, the legislature may use a prior conviction as propensity evidence primarily because of the procedural protections that obtain in the first instance. Here, Congress relied on general evidence of “recidivism” during pretrial release, on the suggestion that “lifelong in-corrigibles” will not reform while awaiting trial, and on the observation that persons on bail would succumb to the temptations of a “last fling” in order to find a greater potential for the commission of future crimes. S.Rep. No. 405, 91st Cong., 1st Sess. 3 (1969); H.R.Rep. No. 907, 91st Cong., 2d Sess. 82 (1970); Managers on the Part of the Senate for S. 2601, 91st Cong., 2d Sess., Statement Regarding the Conference Action Upon E. 2601, (Comm. Print 1970).
General statistics concerning arrestees, 5 however, afford no legitimate basis, with *133 out more, for predicting and punishing the behavior of any given individual. 6 Statements on the propensities of “lifelong in-eorrigibles” cannot be applied to persons who are innocent of the charges. Any “last fling” phenomenon would be confined to those who have in fact committed criminal acts and who have a reasonable apprehension of being convicted of the second offense. Moreover, contrary to the plurality’s suggestions at 127 n. 8, innocent persons with no propensity to commit crimes and persons who have no reason to fear conviction because of insufficient evidence or constitutionally impermissible governmental action do not necessarily have their motives altered for the worse by the fact of their recent arrest and current pretrial release status. The government can have no interest in punishing what amounts to innocent conduct, see Mullaney, supra; In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), 7 nor legitimate interest in “upping the ante” on the basis of presumptively innocent triggering events; imposing a greater duty on “innocent” individuals is unjustifiable. 8
The analogy to repeat offender statutes 9 is clearly faulty when a defendant alleges innocence of the first offense and has only been convicted of the second offense committed while on pretrial release. Under repeat offender statutes, there has been a prior conviction of a separately charged offense after the defendant has been afforded the due process protections required by Winship, supra, 397 U.S. 358 , 90 S.Ct. 1068 . In that circumstance, the conviction is a historical fact of public record; in the instant circumstance, the government can prove only the first arrest and the release as historical facts. In seeking an additional period of incarceration for a pretrial release offense, the government’s burden, *134 by logical analogy, 10 cannot be the same when the defendant asserts his innocence of the first offense. See Patterson v. New York, 432 U.S. 197, 207, 214-15 , 97 S.Ct. 2319, 2325, 2329 , 53 L.Ed.2d 281 (1977) (under New York statute, the government met its burden of proof beyond a reasonable doubt on all elements of the offense on which it was relying for a level of punishment before any burden to prove an affirmative defense was placed on the defendant). But see United States v. Davis, 715 F.Supp. 1473 (D.Calif.1989) (federal sentencing guidelines violative of due process because sentencing factors need not be proven beyond a reasonable doubt).
Nor can reliance on the trial court’s contempt powers save § 23-1328 from constitutional infirmity. D.C.Code § 23-1329(c) (1981) provides that a sanction up to six months imprisonment for criminal contempt can be imposed on any person found guilty of intentionally violating a condition of release after an expedited non-jury hearing “in accordance with principles applicable to proceedings for criminal contempt.” There is nothing to suggest Congress intended the penalty under § 23-1328 to be imposed pursuant to the court’s contempt powers. Congress treated the issue separately and limited the extent of that power. Where the sanction for criminal contempt is more than six months, due process renders the criminal act triable by a jury so that the defendant can have an opportunity to meet the charges by way of defense or explanation. See Browner v. District of Columbia, 549 A.2d 1107 , lili (D.C.1988) (citing Muniz v. Hoffman, 422 U.S. 454 , 95 S.Ct. 2178 , 45 L.Ed.2d 319 (1975)); Bloom v. Illinois, 391 U.S. 194 , 88 S.Ct. 1477 , 20 L.Ed.2d 522 (1968). Speight was given a sentence far in excess of the maximum authorized for violating a condition of his release without any opportunity to “meet the charges against him” regarding his innocence of the first offense. Even assuming his second arrest and conviction constitutes an intentional violation of his release status, the solicitude given to due process for criminal contempt sanctions in excess of six months, considered “extremely serious penalties,” Bloom, supra, 391 U.S. at 207 , 88 S.Ct. at 1485 , surely is no less warranted when imposing, without a hearing on the issue of innocence, increased penalties up to five years imprisonment under § 23-1328. 11
Finally, determining the existence of culpable conduct at the sentencing hearing would seem to require at least the full range of procedural protections, short of a jury trial and proof beyond a reasonable doubt. An analogous situation can be found in Specht v. Patterson, 386 U.S. 605, 610 , 87 S.Ct. 1209, 1212-13 , 18 L.Ed.2d 326 (1967). There, a Colorado statute permitted the trial judge, on the basis of a psychiatric report introduced at the sentencing hearing, to lengthen the sentence of a defendant who had been convicted of a specified sex offense if the judge found that the defendant “constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill.” Id. at 607-08 , 87 S.Ct. at 1211 . The Supreme Court found the procedures to be inadequate, ruling that the defendant must be afforded all of these safeguards that are fundamental to a fair trial: “that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And *135 there must be findings adequate to make meaningful any appeal that is allowed.” Id. at 610 , 87 S.Ct. at 1212 . Cf. In re Nelson, 408 A.2d 1238 , 1236 (D.C.1979) (in civil commitment, government must prove dangerousness by clear and convincing evidence). The analogous argument for Speight is that the legal conclusion that defendants on pretrial release present an added danger to the community must be supported by a procedurally sound factual finding of Speight’s culpability in the conduct for which he was first arrested. Specht, supra, 386 U.S. 605 , 87 S.Ct. 1209 ; Tot, supra, 319 U.S. at 469, 63 S.Ct. at 1245-46.
II.
The recent opinion of the Supreme Court in McMillan v. Pennsylvania, 477 U.S. 79 , 106 S.Ct. 2411 , 91 L.Ed.2d 67 (1986), provides additional support for these conclusions. The petitioners in McMillan challenged, on due process grounds, a Pennsylvania statute that increased the minimum sentence upon a finding of the trial judge, by a preponderance of the evidence, that the petitioners visibly possessed a firearm during the commission of the crime for which they had already been convicted. Upon conviction of a felony enumerated in the statute, the petitioners were already subject to a sentence which exceeded that required after the special finding by the trial judge. 477 U.S. at 92 n. 8, 106 S.Ct. at 2419 n. 8. The Court held that it was constitutionally permissible to treat the firearm factor as a sentencing consideration rather than as an element of the offense. Id. at 92 , 106 S.Ct. at 2419 . It identified three factors to distinguish McMillan from its prior decisions in Mullaney, supra, 421 U.S. 684 , 95 S.Ct. 1881 , Winship, supra, 397 U.S. 358 , 90 S.Ct. 1068 , and Specht, supra, 386 U.S. 605 , 87 S.Ct. 1209 . They include: (1) whether the enhancement factor alters the maximum sentence for the crime committed or creates a separate offense calling for a separate penalty; (2) whether the punishment is imposed for conduct that has historically required proof beyond a reasonable doubt; and (3) whether the procedures that have been provided to the defendant for countering the enhancement factor at sentencing are adequate. McMillan, supra, 477 U.S. at 88-91, 106 S.Ct. at 2417-19 .
To the Court the most important of these factors was the effect on sentencing. The Court stated that the argument for finding the legislative creation of a separate offense “would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113 (d) (providing separate and greater punishment for bank robberies accomplished through ‘use of a dangerous weapon or device’), but it does not.” 477 U.S. at 88 , 106 S.Ct. at 2417 . In distinguishing Mullaney, supra, 421 U.S. at 684 , 95 S.Ct. at 1882 , the Court stressed that the statute there subjected the convicted defendant to a sentencing differential ranging from a nominal fine to a mandatory life sentence. Id. In distinguishing Specht , a pre-Winship decision, the Court similarly stressed that the post-trial finding, based solely on a psychiatric report, exposed the defendant to a sentence of life imprisonment in addition to the ten year maximum for the predicate conviction of a sexual offense. Id. The Pennsylvania statute in McMillan , by contrast, did not alter the maximum penalty or create a separate offense, but only limited the sentencing judge’s discretion within the range of the otherwise available maximum sentence. The Court found that this structure “gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” Id. With regard to the second factor, the Court observed that petitioners did not contend that the particular ‘visible possession of a firearm’ “has historically been treated ‘in the Anglo-American legal tradition’ as requiring proof beyond a reasonable doubt, Patterson, [supra ], 432 U.S. at 226 , [ 97 S.Ct. at 2335 ,] (Powell, J., dissenting).” 477 U.S. at 90 , 106 S.Ct. at 2418 .
The three factors which controlled the outcome in McMillan dominate the instant case. The D.C. statute is defensible only if the defendant’s right to due process of law *136 is fully met at the time of sentencing. McMillan makes clear that under Mullaney, Specht, and Winship , the procedures upheld by the majority in Speight’s case are inadequate when the defendant protests his innocence of the first offense. The mere fact of arrest and release has historically not led to the explicit and legitimate imposition of punishment, as distinct from detention necessary for the administration of criminal justice. Cf. United States v. Salerno, 481 U.S. 739 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987) (emphasizing, in rejecting a due process challenge to the preventive detention provisions of the federal Bail Reform Act, the existence of “extensive safeguards” — including a “full blown” evidentiary hearing at which the government has the burden to demonstrate by clear and convincing evidence that detention is necessary, and a requirement that the judicial officer make written findings of fact and a statement of reasons for a decision to detain); Schall v. Martin, 467 U.S. 253, 269 , 104 S.Ct. 2403, 2412 , 81 L.Ed.2d 207 (1984); Bell v. Wolfish, 441 U.S. 520, 538 , 99 S.Ct. 1861, 1873-74 , 60 L.Ed.2d 447 (1979); United States v. Melendez-Carrion, 790 F.2d 984, 1007-08 (2d Cir.1986). Indeed, a substantial portion of the Bill of Rights stands in direct contravention of that possibility.
A hearing at the time of sentencing may be adequate for determining an historical fact or the status or characteristics of the defendant. Determining legal guilt, in contrast, requires an examination of the complex issues of fact and law appropriate for formal trials and full constitutional protections. The release offender provisions, however, are applied without any scrutiny of the circumstances of the first arrest and without any requirement that a judge, petit jury, or grand jury have passed on the matter. The undeniable effect is the likelihood that certain individuals will undergo a substantially longer period of incarceration by the mere fact of having previously been arrested and released on the basis of presumptively innocent conduct. The goal of crime deterrence is no justification in this context because the law must presume that a defendant is innocent until proven guilty. Winship, supra.
As a practical matter, the release offender statute exposes defendants to increased punishment for a governmentally imposed status, and therefore establishes a “new set of upgraded felonies,” McMillan, supra, 477 U.S. at 88 , 106 S.Ct. at 2417 , and misdemeanors. Contrary to the suggestion in the plurality opinion, see opinion at 128, the release offender statute is different from statutes which provide for an enhanced sentence based on a factor aggravating the underlying offense. 12 The federal firearms statute, for instance, as the plurality concedes, opinion at 129, requires that an indictment have been issued in order to enhance the sentence, a very different situation than Speight’s whose additional five year sentence is based only on an arrest. 13 Again, it is no answer that the defendant’s voluntary commission of the second offense is sufficient because he has assumed an obligation by embarking on pretrial release; neither Congress nor the prosecutor can have a legitimate interest in imposing such a burden without the proper procedural protections for determining the existence of an adequate, legitimate, and rational factual predicate in an individual case.
III.
This analysis does no violence to the Congressional purpose in enacting § 23-1328 nor poses a problem for the prosecutor who has recognized, in enforcing a comparable *137 federal statute, that the legislative goal can be readily accomplished in a manner consistent with constitutional protections. See, e.g., United States v. Patterson, 820 F.2d 1524, 1527 (9th Cir.1987) (charge of violation of bail pending appeal included in indictment). 14 The plurality’s reliance on Salerno, supra, 481 U.S. 739 , 107 S.Ct. 2095 , plurality opinion at 127 n. 7, is misplaced since the D.C. statute lacks comparable procedural protections. 15 The plurality’s uncritical acceptance of the Congressional assertion that the “betrayal of trust" eliminates the need for a culpability determination simply begs the question: if a defendant’s first arrest did not involve culpable conduct, then there is no “betrayal of trust.’ And, while the plurality acknowledges that reliance on the federal firearms act is flawed, since the element leading to additional punishment is included in the indictment and follows conviction, it can cite no case or statute that results in added punishment in excess of the maximum authorized penalty upon conviction for a crime committed while on pretrial release.
Recidivism speaks not in terms of separate offenses but rather in terms of enhanced punishment “on account of the pri- or conviction.” Tansimore, supra, 355 A.2d at 803 (citations omitted). Thus, if, at the time of sentencing, there is no prior conviction unquestionably apparent “after a trial and after the accused has been *138 found guilty,” the penalty for recidivism cannot be imposed. It is the repetition of criminal conduct — a crime committed while on bail for another crime — that is recidivism. 16
IV.
Regrettably, since no less than personal liberty is at stake, the majority has skirted the issue presented. There is no dispute that Congress could rationally include additional punishment should follow arrest. Sentencing discretion is not at issue. The only issue is what due process protections must be afforded to a defendant before additional punishment can be imposed. Until today, no court has suggested arrest status suffices.
Surely it is noteworthy that previously the court had upheld the statute against constitutional attack by reliance on an analogy, albeit faulty, to repeat offender statutes in which a defendant had received full constitutional protections at the trial leading to the first conviction before an enhanced repeat offender sentence could be imposed. See note 8, supra. Abandoning that approach, as it must, the plurality relies on an equally faulty ground that because a statutory scheme has a rational basis it is’ immune from constitutional due process attack even when an individual defendant maintains that the express assumptions underlying the statutory scheme are inapplicable. Affording due process protections as elsewhere have clearly been required in order to impose punishment in excess of the express crime of which a defendant has been convicted presents no obstacle to the accomplishment of the Congressional purpose, as is clear from the federal pretrial release statute enacted by Congress subsequent to the D.C. pretrial release statute, and assures no less than protection of our individual liberties.
APPENDIX
The following Parts II and III were contained in the panel opinion on December 9, 1987 (footnotes numbered as in the original), but not published in the Atlantic Reporter.
II
Speight first contends that he had not been “charged,” within the meaning of D.C.Code § 28-1321(a) (1986 Supp.), 5 at the time of the cocaine arrest, with the crime of carrying a dangerous weapon, and indeed was never so charged. He contends that a person is not “charged” with a felony offense until indicted by a grand jury, and that, under the proper interpretation of § 1321, arrests, presentments, and pretrial hearings merely constitute “accusations.” If so, an additional sentence under § 23-1328 6 cannot be imposed. Speight relies on the argument that Congress incor-
*139 porated into § 23-1321 a traditional accepted judicial usage of the word “charged” in constitutional law. His authority consists of the usage of the word “charge” in several cases. For example, in Costello v. United States, 350 U.S. 359, 362 [, 76 S.Ct. 406, 408 , 100 L.Ed. 397 ] (1956), the Court wrote that an indictment by a grand jury “is the sole method for preferring charges in serious criminal cases.” See also Stirone v. United States, 361 U.S. 212, 217 [, 80 S.Ct. 270, 273 , 4 L.Ed.2d 252 ] (1960) (no trial on “charges that are not made in the indictment against him”); Tot v. United States, 319 U.S. 463, 466 [, 63 S.Ct. 1241, 1244 , 87 L.Ed. 1519 ] (1943) (“indictment charges an accused”); Williams v. United States, 404 A.2d 189 (D.C.1979) (all essential elements); Wittenberg v. United States, 366 A.2d 128 (D.C.1976).
Speight’s reliance on these cases is not dispositive for our purposes. The opinions did not intend to define the word charge in the cited statements; they were clearly addressing other issues. Most importantly, they did not restrict the word “charge” to the indictment process. The fact that a grand jury must indict for all elements of a crime does not mean that other entities cannot bring “charges.” In countless cases courts apply the word “charge” to the prosecutor’s formal decision to prosecute and to other phases of the criminal justice system. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 105 [, 95 S.Ct. 854, 858-59 , 43 L.Ed.2d 54 ] (1975); Coleman v. Alabama, 391 [399] U.S. 1, 11 [, 90 S.Ct. 1999, 2004 , 26 L.Ed.2d 387 ] (1970) (Black, J., concurring); Pointer v. Texas, 380 U.S. 400, 402 [, 85 S.Ct. 1065, 1067 , 13 L.Ed.2d 923 ] (1965) (“the preliminary hearing ... was one in which pleas to the charge could be made”). Charges can be levied and reviewed in a felony case either at presentment, at the initial appearance, or at a preliminary hearing. 7 Thus, “charged” *140 necessarily refers to all persons arrested and formally accused of a crime by the government.
Speight’s interpretation of § 23-1321 is also directly contrary to this court’s reading of congressional intent in Daniel v. United States, 408 A.2d 1231, 1232-33 (D.C.1979) (per curiam). 8 The court there stated that “Congress was concerned about the large number of crimes committed by people on pretrial release.” Id. at 1233 (citing S.Rep. No. 405, 91st Cong., 1st Sess. 3 (1969); H.R.Rep. No. 907, 91st Cong., 2d Sess. 82 (1970)). Congress found a demonstrable added danger to the community and sought to deter “bail recidivism” 9 by imposing greater penalties for crimes committed while on pretrial release. 10 Id. (citing Managers on the Part of the Senate for S.2601, 91st Cong., 2d Sess., Statement Regarding the Conference Action upon S.2601 31 (Comm.Print 1970)); see also Tanismore v. United States, 355 A.2d 799, 803 (D.C.1976). Speight’s contention is accordingly reduced to the proposition that Congress was only concerned about post-indictment bail recidivism, a contention that is inconsistent with the stated statutory purpose.
Accordingly, we hold that the word “charged” in § 23-1321 means simply a formal accusation of the defendant, and proceed to address the constitutional issues.
Ill
Speight contends that the release offender statute, as applied to him, violates his fifth amendment right to a grand jury indictment. He maintains that the additional five year sentence constitutes an infamous crime within the historic meaning of the fifth amendment because of the nature of the punishment. See Green v. United States, 356 U.S. 165, 183 [, 78 S.Ct. 632, 642 , 2 L.Ed.2d 672 ] (1958) (“an infamous crime is one punishable by imprisonment”). Thus, he argues that since he only received a grand jury indictment for the offense of cocaine distribution, and not for the essentially separate offense of committing a felony while on pretrial release, he was denied the substantial right of having the benefit of the grand jury’s “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U.S. 665, 686-87 *141 [, 92 S.Ct. 2646, 2659 , 33 L.Ed.2d 626 ] (1972). 11
By seeking to identify the pretrial release statute as a separate “infamous” crime, Speight’s contention is directly contrary to precedent that binds this division. This court has rejected the proposition that § 23-1328 creates a separate offense. In Tanismore, supra, 355 A.2d at 803, by denying the defendant the right to a (petit) jury trial on the issue of whether he committed an offense while on release, the court necessarily held that
[i]t is clear that the above statute pertains only to the question of punishment rather than creating a new substantive offense.... Our position is consistent with the general rule established vis-a-vis the analogous situation of repeat offender statutes. The accepted view is that these recidivist statutes do not create separate offenses, but only enhance the punishment on account of the prior conviction. See Chandler v. Fretag, 348 U.S. 3, 7 [, 75 S.Ct. 1, 3 , 99 L.Ed. 4 ] (1954) [repeat offender statute]; Graham v. West Virginia, 224 U.S. 616, 623-24 [, 32 S.Ct. 583, 585-86 , 56 L.Ed. 917 ] (1912) [same]; Jackson v. United States, 95 U.S. App.D.C. 328, 221 F.2d 883 (1955) [same].
Id. at 803.
The rationale behind Tansimore dictates that the Tansimore holding be applied to grand jury indictments as well as to jury trials. The court held that “certain procedural safeguards must be afforded before the heavier release offense penalty can be imposed.” 355 A.2d at 803 . Because the only additional fact necessary for the application of § 23-1328 concerns pretrial release status, the court concluded that the defendant receives adequate procedural protection if the government is required to prove the facts of the defendant’s identity and release status at the sentencing hearing. 12 Id. The date of offense is routinely incorporated in the grand jury indictment and the trial, and must be presented at the time of sentencing. As with the evidence of a prior conviction under the recidivist statute, see United States v. Marshall, 142 U.S.App.D.C. 167 , 440 F.2d 195 (en banc) (procedures for applying recidivist statute), cert. denied, 400 U.S. 909 [, 91 S.Ct. 153 , 27 L.Ed.2d 148 ] (1970); United States v. Clemons, 142 U.S.App.D.C. 177 , 440 F.2d 205 (1970) (same), cert. denied, 401 U.S. 945 , [ 91 S.Ct. 959 , 28 L.Ed.2d 227 ] (1971), the release papers filed by the government can readily incorporate the dates of pretrial release, which are a matter of public record. Repeat or release status involves characteristics that obtain regardless of the manner in which the underlying offense is committed. The nature of the act itself is not changed; the trial court can easily assess the distinct characteristics of the defendant, and the proof thereof, at a post-trial hearing. Compare Jordan, supra note 4, 98 U.S.App.D.C. at 163-64, 233 F.2d at 365-67 (armed with a firearm); United States v. Moore, 176 U.S.App.D.C. 309, 310-11 , 540 F.2d 1088, 1089-90 (1976) (age of distributee in distribution charge when punishment is increased for selling to minor). The defendant has an adequate opportunity to contest these statutory allegations. The question remains whether *142 the statute’s definition of the elements of the crime meets constitutional requirements when more than release status is at issue. See Part Y, infra.
. For ease of reference, I use the terms “first offense" to refer to the offense for which a defendant is initially arrested and subsequently released under § 23-1328, and "second offense” to refer to the offense of which the defendant has been convicted after being arrested while on release under § 23-1328.
. Speight was sentenced to a total of 1 to 15 years imprisonment. The maximum penalty for cocaine distribution is 5 years. D.C.Code § 33-541(a)(2)(B) (1986 Supp.). Because he had prior convictions, his sentence was enhanced by another five years. Id. § 33-548(a). He does not challenge that the maximum sentence for his distribution conviction is ten years.
. Speight's challenges to the first offense on the grounds that the charge was the result of an unconstitutional search and seizure and that the dangerous weapon charge was dismissed by the grand jury were not considered by the trial judge in imposing sentence.
. This analysis is not inconsistent with the line of decisions holding that an illegal arrest without more cannot bar subsequent prosecution nor be a defense to a valid conviction. See United States v. Crews, 445 U.S. 463, 474 , 100 S.Ct. 1244, 1251 , 63 L.Ed.2d 537 (1980), and cases cited therein.
. See, e.g., Schware v. Board of Bar Examiners, 353 U.S. 232, 241 , 77 S.Ct. 752, 757 , 1 L.Ed.2d 796 (1957) ("When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest might have had is normally dissipated.”); Scales v. United States, 367 U.S. 203, 224-25 , 81 S.Ct. 1469, 1483-84 , 6 L.Ed.2d 782 (1961) (“In *133 our jurisprudence, guilt is personal_’’). While the fact of a prior arrest may be included in a federal presentence report to chronicle the defendant’s general history, “a record of arrests without prosecution or conviction must not be equated with evidence of prior wrongdoing.” United States v. Cesaitis, 506 F.Supp. 518, 524 (E.D.Mich.1981) ("cannot be considered indicative of any criminal propensities"). Allowing the defendant to explain the circumstances of the arrest helps to avoid misuse of this conviction. Id. In the District of Columbia, the sentencing judge may consider reliable evidence of the "defendant’s character and the circumstances surrounding the crime of which he has been convicted.” Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981). This court has not addressed the question whether a sentencing judge may impose a harsher sentence solely because of a prior, unrelated arrest. See District of Columbia v. Hudson, 404 A.2d 175 , 178 n. 4 (D.C.1979) (en banc). Cf. Tot v. United States, 319 U.S. 463, 467 , 63 S.Ct. 1241, 1244-45 , 87 L.Ed. 1519 (1943) (requiring rational connections between fact proved and fact presumed).
.That the legislature has the greater power to add five years to the underlying offense does not, the Supreme Court has repeatedly held, necessarily mean it also has a lesser power that would infringe upon fundamental constitutional rights. See, e.g., Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975); Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970); Speiser v. Randall, 357 U.S. 513 , 78 S.Ct. 1332 , 2 L.Ed.2d 1460 (1958). The government must show that Congress’ general fears are applicable in the individual case.
. Cf. Robinson v. California, 370 U.S. 660, 667 , 82 S.Ct. 1417, 1420 , 8 L.Ed.2d 758 (1962) ("one day in prison would be cruel and unusual for the ‘crime’ of having a common cold”); Ingraham v. Wright, 430 U.S. 651, 660 , 97 S.Ct. 1401, 1407 , 51 L.Ed.2d 711 (1977) (eighth amendment "imposes substantive limits on what can be made criminal and punished as such”); Stoutenburgh v. Frazier, 16 App.D.C. 229, 236 (1900) (”[i]t would clearly be a cruel and unnatural punishment to impose fine and imprisonment upon a party, because he might happen to be regarded by some persons as a suspicious person, without anything more.”). Compare Powell v. Texas, 392 U.S. 514 , 88 S.Ct. 2145 , 20 L.Ed.2d 1254 (1968) (upholding punishment for act of drunkenness in public although committed while in unresponsible state of intoxication; no additional punishment for the state itself).
. For example, in Papachristou v. City of Jacksonville, 405 U.S. 156 , 92 S.Ct. 839 , 31 L.Ed.2d 110 (1972), the Court ruled that a state legislature could not punish vagrants out of fear of the future harm that they might cause. An arrest cannot, in general, be characterized as a viola-tional act on the part of the defendant. Parker v. United States, 373 A.2d 906 (D.C.1977) (criminal contempt).
. See Daniel v. United States, 408 A.2d 1231 (D.C.1979) (per curiam); Tansimore v. United States, 355 A.2d 799 (D.C.1976).
. Cf. Reed v. United States, 485 A.2d 613, 617-18 (D.C.1984) (procedure to establish prior convictions under impeachment statute, § 14-305(b), when conviction is denied by the defendant); Oliver v. United States, 384 A.2d 642 (D.C.1978) (evidentiary hearing required when validity of prior conviction is challenged in § 23-111 proceeding on ground of denial of sixth amendment right to counsel).
. In some jurisdictions due process in sentencing requires a defendant’s request for an opportunity to rebut information on which the judge relies to be granted. See United States v. Bass, 175 U.S.App.D.C. 282 , 291 & n. 17, 535 F.2d 110 , 119 & n. 17 (1976) (cases cited). This procedural step has been cited as a reason for upholding the federal sentencing guidelines against a due process challenge premised on the defendant’s right to present evidence and to challenge the basis of the sentence. See United States v. Landers, 690 F.Supp. 615, 624 (W.D.Tenn.1988); United States v. Alves, 688 F.Supp. 70, 80 (W.D.Mass.1988). The Supreme Court in Mistretta v. U.S., 488 U.S. 361 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989), did not address these due process claims.
. See Jordan v. United States, 98 U.S.App.D.C. 160 , 163-64, 233 F.2d 362, 365-67 , vacated on other grounds, 352 U.S. 904 , 77 S.Ct. 151 , 1 L.Ed.2d 114 (1956); United States v. Moore, 176 U.S.App.D.C. 309, 310-11 , 540 F.2d 1088, 1089-90 (1977); United States v. Davis, 710 F.2d 104, 106-07 (3rd Cir.), cert. denied, 464 U.S. 1001 , 104 S.Ct. 505 , 78 L.Ed.2d 695 (1983), and cases from other federal circuits cited therein.
. The plurality’s reliance on District of Columbia v. Hudson, supra, 404 A.2d at 178, is misplaced since the court specifically left open whether arrests could be a factor in sentencing. Id. at 178 n. 4. See note 5, supra.
. Similar to § 23-1328, the Comprehensive Crime Control Act of 1984, 18 U.S.C. § 3147 (1987 Supp.), provides:
A person convicted of an offense committed while [on pretrial release] shall be sentenced, in addition to the sentence prescribed for the offense to—
(1) A term of imprisonment of not less than two years and not less than ten years if the offense is a felony; or
(2) A term of imprisonment of not less than ninety days and not more than one year if the offense is a misdemeanor.
A term of imprisonment under this section shall be consecutive to any other sentence of imprisonment.
The Supreme Court has ruled that 18 U.S.C. § 3147 does not repeal by implication a judge’s authority under 18 U.S.C. § 3651 (1985 & 1987 Supp.) to grant probation to such defendants. See Rodriguez v. United States, 480 U.S. 522 , 107 S.Ct. 1391 , 94 L.Ed.2d 533 (1987). The United States Court of Appeals for the District of Columbia Circuit reached a similar conclusion with respect to a defendant’s rights to parole under 18 U.S.C. § 4205 (b) (1982). See United States v. Mudd, 260 U.S.App.D.C. 117 , 817 F.2d 840 (1987). In Rodriguez the defendant pled guilty to both the original charge and that based on her sale of heroin while on pretrial release. In Mudd the defendant committed the second offense while released on his own recognizance pending sentencing for two convictions. Both § 3651 and § 4205(b) have been prospectively repealed by the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1976. See 18 U.S.C. § 3651 note (Supp. Ill 1985) (effective date postponed until November 1, 1987).
The only case interpreting the constitutionality of § 3147 of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, tit. II, 98 Stat. 1837 , rejected a due process challenge where the bail-release status was included as a separate count in the indictment and the jury found the defendant guilty of that count. United States v. Patterson, supra, 820 F.2d at 1527 . The government introduced at trial before a jury a certified copy of his “Bail Bond on Appeal” which was signed by judge. Count two of the indictment charged Patterson with the crime of being a felon in possession of a firearm which had previously been moved in commerce in violation of 18 U.S.C.App. § 1202(a). The indictment contained the additional allegation that he was “on post-conviction release” after conviction of the 1984 felonies. The Ninth Circuit also rejected a challenge to § 3147 on ex-post facto grounds. Id.
Neither United States v. Ala friz, 690 F.Supp. 1303, 1310 (S.D.N.Y.1988), cited by the plurality opinion at 129 n. 13, nor United States v. Mesa, 641 F.Supp. 796, 798 (S.D.Fla.1986), plurality opinion at 129 advance the majority’s position. Alajriz, involving a challenge to the federal sentencing guidelines, does not address the issue raised by Speight, and the analysis in Mesa relies on the fallacious analogy adopted in Tan-simore, supra, 355 A.2d 799 , to repeat offender statutes.
. United States v. Rodriguez, 794 F.2d 24 (2d Cir.1986), rav’d on other grounds, 480 U.S. 522 , 107 S.Ct. 1391 , 94 L.Ed.2d 533 (1987), also is of no assistance to the plurality’s holding. See plurality opinion at 129 n. 14. Rodriguez, again, was analyzing the Comprehensive Crime Control Act and held only that probation is not available under the Act, which mandates a two-year minimum term of imprisonment for defendants convicted of committing an offense while on pretrial release. Nor is United States v. Grayson, 438 U.S. 41, 50-51 , 98 S.Ct. 2610, 2615-16 , 57 L.Ed.2d 582 (1978), of assistance to the plurality. See plurality opinion at 128. In Grayson , the sentencing judge viewed the defendant’s false testimony at trial a sentencing factor in imposing a sentence within the maximum term allowed. Id. at 44 & n. 2, 98 S.Ct. at 2612 & n. 2.
. As to the plurality’s reliance on State v. Webb, 309 N.C. 549 , 308 S.E.2d 252 (1983), “disdain for the law" is not a crime, nor is it an acceptable reason for imposing punishment beyond that authorized by law, and nothing in Webb suggests that the North Carolina statute, requiring consideration of bail release offenses at the time of sentencing, authorized the imposition of a penalty in excess of the maximum sentence for the crime of which the defendant had been convicted.
. Section 23-1321(a) provides in pertinent part: Any person charged with an offense ... shall, at his appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond....
. Section 23-1328 provides in pertinent part:
(a) Any person convicted of an offense committed while released pursuant to section 23-1321 shall be subject to the following penalties in addition to any other applicable penalties:
(1) A term of imprisonment of not less than one year and not more than five years if convicted of committing a felony while so released....
18 U.S.C. § 3147 (1987 Supp.) similarly provides that
[a] person convicted of an offense committed while [on pretrial release] shall be sentenced, in addition to the sentence prescribed for the offense to—
(1) A term of imprisonment of not less than two years and not less than ten years if the offense is a felony; or
(2) A term of imprisonment of not less than ninety days ana not more than one year if the offense is a misdemeanor.
A term of imprisonment under this section shall be consecutive to any other sentence of imprisonment.
The Supreme Court has recently ruled that § 18-3147 does not repeal by implication a *139 judge's authority under 18 U.S.C. § 3651 (1985 & 1987 Supp.) from granting probation to such defendants. See Rodriguez v. United States, [ 480 U.S. 522 ,] 107 S.Ct. 1391, 1392 [, 94 L.Ed.2d 533 ] (1987). The U.S. Court of Appeals for District of Columbia Circuit has also recently made a similar ruling with respect to a defendant's rights to parole under 18 U.S.C. § 4205 (b) (1982). See United States v. Mudd, 260 U.S.App.D.C. 117 , 817 F.2d 840 (1987). In Rodríguez the defendant pled guilty to both the original charge and that based on her sale of heroin while qn pretrial release. In Mudd the defendant committed the second offense while released on his own recognizance pending sentencing for convictions for receiving stolen government property and for possessing an unregistered firearm and unregistered ammunition. Both § 3651 and § 4205(b) have been prospectively repealed by the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1976. See 18 U.S.C. § 3651 note (Supp. Ill 1985) (effective November 1, 1987); 18 U.S.C. § 4205 (b) note (Supp. Ill 1985) (effective November 1, 1987). Congress has also prospectively removed the minimum sentencing aspects of § 3147 by deleting the phrases "not less than two years and” and “not less than ninety days and.” See 18 U.S.C. § 3147 note (Supp. Ill 1985) (effective date postponed until November 1, 1987).
The only case interpreting the constitutional validity of § 3147 of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, tit. II, 98 Stat. 1837 , rejected a due process challenge where the bail-release status was included as an allegation in a separate count in the indictment and the jury found the defendant guilty of that count. United States v. Patterson, 820 F.2d 1524, 1527 (9th Cir.1987). In that case the defendant was on bail pending appeal at the time he committed subsequent offenses for which he was convicted. The government introduced at trial before a jury a certified copy of his "Bail Bond on Appeal” which was signed by a judge.
Count two of the indictment charged Patterson with the crime of being a felon in possession of a firearm which had previously been moved in commerce in violation of 18 U.S.C. App. § 1202(a). The indictment contained the additional allegation that he was "on post-conviction release” after conviction of the 1984 felonies.
The Ninth Circuit also rejected a challenge to § 3147 on ex-post facto grounds. Id.
. For example, the Bail Agency and Pretrial Detention provisions, D.C.Code § 23-1301 et seq. (1981) repeatedly refer to procedures and standards for handling persons "charged with an offense,” e.g., §§ 23-1303 (detainee interview), -1321 (general pretrial release), -1322 (general pretrial detention standards), -1323 „ (addict), -1325 (murder), that must routinely be employed prior to a grand jury indictment; see also Clotterbuck v. United States, 459 A.2d 134 (D.C.1983); Hazel v. United States, 483 A.2d 1157, 1158 (D.C.1984); United States v. Edwards, 430 A.2d 1321, 1324 (D.C.1981) (en banc), cert. denied, 455 U.S. 1022 [, 102 S.Ct. 1721 , 72 L.Ed.2d 141 ] (1982).
. The court looks first to the plain meaning of the words of the statute, as understood by common or contextual usage. United States v. Bailey, 495 A.2d 756, 760 (D.C.1985); People’s Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753-54 (D.C.1983) (en banc). Superficial clarity does not end our inquiry, "for an in-depth consideration of alternative constructions that could be ascribed to statutory language may reveal ambiguities that the court must resolve.” Id. at 754 . The court will examine legislative history and the purposes of the statute in order to explain ambiguity, to resolve apparent contradictions, or to choose between competing constructions. The use of the same word in similar legal statutes or situations can also provide evidence of legislative intent. Finally, where the statute is susceptible to more than one valid interpretation, courts tend to prefer interpretations that avoid constitutional questions. Kent v. Dulles, 357 U.S. 116 [, 78 S.Ct. 1113 , 2 L.Ed.2d 1204 ] (1958).
. Congress stated that:
[N]one of the [people on pretrial release] will be particularly motivated to obey the law during the period of pretrial release. In the 50 or 60 days between arrest and trial — which is probably the minimum for serious offenses— the addict’s habit will not disappear; the lifelong incorrigible will not be reformed; and the last fling phenomenon will still be present.
H.R.Rep. No. 907, 91st Cong., 2d Sess. 83 (1970).
.Congress stated that:
The actual and potential dangerousness of defendants charged with crime to persons and the community should be confronted.... Dangerousness should be considered in determining conditions of pretrial release.... Nor are more speedy trials itself a solution, for no matter how efficiently a busy urban court system may operate, with all the discovery motions, preliminary hearings, grand jury proceedings, suppression motions, and preparation of transcripts, trials cannot be expected to occur within less than sixty days. Society should not be made to suffer the unreasonable risk of additional crimes committed by dangerous defendants during this period of delay....
H.R.Rep. No. 907, 91st Cong., 2d Sess. 83 (1970) (emphasis supplied).
. The government’s response that Speight was not entitled to a jury trial on the separate release offense is misdirected. The grand and petit juries, "their functions, and the interests which they serve, while related, are nonetheless capable of distinction.” United States v. Bukowski, 435 F.2d 1094, 1102 (7th Cir.1970), cert. denied, 401 U.S. 911 [, 91 S.Ct. 874 , 27 L.Ed.2d 809 ] (1971). For example, there is a right to a petit jury trial in serious criminal contempt cases, Bloom v. Illinois, 391 U.S. 194 [, 88 S.Ct. 1477 , 20 L.Ed.2d 522 ] (1968), but not a right to a grand jury indictment. Green, supra, 356 U.S. at 184 [, 78 S.Ct. at 643 ]; Bukowski, supra, 435 F.2d at 1101 . The grand jury also indicts on the basis of probable cause and may consider hearsay, Costello, supra, 350 U.S. at 363 , [ 76 S.Ct. at 408-09 ,] or evidence seized in violation of the fourth amendment, United States v. Calandra, 414 U.S. 338, 354 [, 94 S.Ct. 613, 623 , 38 L.Ed.2d 561 ] (1974), while at the same time possessing the power to refuse to indict on the grounds of government misconduct.
. The government filed the appropriate release papers, and incorporated the date of the second offense (regarding cocaine) at trial and sentencing. Speight did not contest these facts in the trial court and does not now contest them.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704673. Public record. Not legal advice.