United States v. Dessesaure , 556 F.3d 83 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1029
UNITED STATES OF AMERICA,
Appellant,
v.
EARL DESSESAURE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellant.
James B. Krasnoo, by appointment of the court, with whom
Krasnoo/Klehm LLP was on brief for appellee.
February 24, 2009
Per Curiam. In this appeal, the government challenges
the district court's dismissal with prejudice--for violations of
the Speedy Trial Act, 18 U.S.C. § 3161 (2006)--of its four-count
indictment against Earl Dessesaure. The prosecutor concedes that
the statute was violated, but says that government error was
inadvertent and caused only a modest delay and no harm, so
dismissal should have been without prejudice. The background,
elaborated in the cited decisions, can be briefly summarized.
On June 4, 2003, Dessesaure was indicted on drug
trafficking and gun charges.1 He was arrested on the street with
drugs; the police entered his apartment without a warrant and found
more drugs in sight; and, obtaining a warrant, agents then made a
detailed search and seized a gun, bullets, more drugs and drug
paraphernalia, money, and relevant documents. After hearings in
fall 2003, the district court on April 13, 2004, granted a
suppression motion as to the evidence seized from the apartment.
United States v. Dessesaure, 314 F. Supp. 2d 81 (D. Mass. 2004).
After failing to win reconsideration, United States v.
Dessesaure, 323 F. Supp. 2d 211 (D. Mass. 2004), the government
sought review, and this court reversed the district court's
decision to suppress the evidence obtained pursuant to the warrant,
1
Specifically, being a felon in possession of ammunition, 18
U.S.C. § 922(g)(1) (2006) (Count One); possession of heroin with
intent to distribute, 21 U.S.C. § 841(a)(1) (2006) (Counts Two and
Three); and possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A) (Count Four).
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ruling that it was admissible under the analysis set forth by the
Supreme Court in Franks v. Delaware, 438 U.S. 154 (1978) and Murray
v. United States, 487 U.S. 533 (1988). United States v.
Dessesaure, 429 F.3d 359, 365 (1st Cir. 2005). The mandate issued
March 7, 2006. Nothing more happened until June 6, 2006--a period
of ninety-one days--when Dessesaure filed a letter requesting the
appointment of counsel to file a petition for certiorari.
On June 14, 2006, the district court scheduled a status
conference for June 29. There, the district judge questioned, sua
sponte, whether the delay violated the Speedy Trial Act. The
government's filing on July 14 conceded that a violation had
occurred and urged a dismissal without prejudice. Dessesaure's
counsel responded on August 8, 2006, saying he would move for
dismissal with prejudice, although he did not then do so for a
number of months.
On October 27, 2006, the district court held a hearing on
the Speedy Trial Act issue, observing that it could pursue any of
several options; that it was "tempted to dismiss with prejudice";
but that "most of these dismissals with prejudice are overturned."
The court continued:
Given the state of the law, the odds are that
I would be reversed, even though I strongly
believe this is a case with misconduct, and
this kind of fact-finding ought to be
dismissed with prejudice . . . .
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Dessesaure formally moved for dismissal with prejudice on
December 18, 2006. Eleven months later, on November 21, 2007, the
district court dismissed the indictment against Dessesaure "with
prejudice." United States v. Dessesaure, 527 F. Supp. 2d 193 (D.
Mass. 2007). The district court agreed that the crimes were
"extremely serious" and that delay had been partly due to the court
itself, but said that the prosecution had "been flawed . . . in
many respects" and the defendant had languished in jail for too
long. Id. at 198.
The government now appeals and, neither facts nor
governing law being seriously in dispute, our review is for "abuse
of discretion." United States v. Kelley, 402 F.3d 39, 41 (1st Cir.
2005). The issue is framed by the statutory scheme, a set of
factors that the law makes relevant to choosing a remedy, and a
pattern of case law that--as the district judge recognized--makes
dismissal with prejudice a last and rare resort. Sansone,
Annotation, 98 A.L.R. Fed. 660 (1990) (collecting case law on
dismissal with prejudice under the statute).
The reason why such dismissals are ordinarily without
prejudice is obvious. The Speedy Trial Act is a mechanical regime
which, nominally, requires trial within 70 days of indictment but
excludes various periods from the calculation. 18 U.S.C. §
3161(c)(1), (h). For the sake of both the public and the
defendant, it aims at prompt resolution of criminal charges; but it
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would not long survive if administered to turn routine slips into
permanent immunity for a defendant who may be quite dangerous.
Given a violation, the statute and precedent require the
court to consider various factors. The statute itself provides:
In determining whether to dismiss the case
with or without prejudice, the court shall
consider, among others, each of the following
factors: the seriousness of the offense; the
facts and circumstances of the case which led
to the dismissal; and the impact of a
reprosecution on the administration of this
chapter and on the administration of justice.
18 U.S.C. § 3162(a)(2).
Perhaps the most concrete elements are the seriousness of
the offense, the cause of the delay and any resulting prejudice to
the defendant's ability to get a fair trial if re-prosecuted. 18
U.S.C. § 3162(a)(2); United States v. Scott, 270 F.3d 30, 58 (1st
Cir. 2001); United States v. Hastings, 847 F.2d 920, 925-29 (1st
Cir. 1988). Here, all three of these factors supported a dismissal
without prejudice as the fit remedy.
Of the offenses charged, little need be said because
their seriousness is so obvious. Hastings, 847 F.2d at 925. The
combination of drug trafficking and guns has imposed a grim toll on
society. If the evidence seized at Dessesaure's apartment is taken
at face value--and he has not yet had a chance to defend himself at
trial--it explains why he did not press vigorously for an early
trial and makes a showing of prejudice more doubtful.
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The initial delay complained of by the district judge was
the failure to press the case forward between the issuance of this
court's mandate in March 2006 and the conference in June; but the
delay was not especially long, and the defendant was as well-placed
to remind the judge as was the prosecutor. The delay between this
court's decision and the issuance of mandate was due to a defense
petition for rehearing en banc which was legitimate but
automatically stayed issuance of the mandate.
By the time the district court dismissed the case, the
duration had become substantial, but not because of further
prosecution delay. The defense, for example, said in August 2006
that it would seek dismissal with prejudice but delayed moving
until December. The district judge then considered the ensuing
motion to dismiss for eleven months. On the present facts neither
consideration supports a dismissal with prejudice.
Ordinarily, the strongest argument against re-prosecution
is prejudice to the defendant--most importantly, loss of witnesses
or other impediments to obtaining a fair trial at a later date. See
Scott, 270 F.3d at 58; United States v. Barnes, 159 F.3d 4, 18 (1st
Cir. 1998). But Dessesaure has not made any showing of this kind.
Further, if he were re-indicted and could prove real prejudice, he
could invoke a constitutional guarantee, which operates to protect
against such prejudice regardless of the Speedy Trial Act. See
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U.S. Const. amend. VI; United States v. Mitchell, 723 F.2d 1040,
1049 (1st Cir. 1983).
The district court made clear its view that the case was
flawed from the outset because the original entry into Dessesaure's
apartment was unlawful; but the prosecution was entitled to try to
rescue the case under Supreme Court precedent, and it prevailed on
the appeal. Dessesaure, 429 F.3d at 367. Of greater concern is
the district court's finding that Boston police officers did not
testify truthfully in the suppression hearing; but there is no
indication that federal prosecutors were parties to the deceit nor
is it clear that any inaccuracies in testimony had anything to do
with the Speedy Trial Act violations. See Hastings, 847 F.2d at
925-26.
The judgment of dismissal without prejudice is reversed
and the case remanded for entry of judgment of dismissal without
prejudice which must be done within seven days of issuance of our
mandate. Our mandate shall issue forthwith.
It is so ordered.
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