United States v. Duncan ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-20785
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LARRY R. DUNCAN,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(94-CR-211-1)
_________________________________________________________________
September 11, 2000
Before WOOD*, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:**
At issue is the authority vel non for the district court’s sua
sponte “in the interests of justice” dismissal of a criminal
indictment, instead of sentencing Larry R. Duncan, found guilty
several years earlier by a jury. We VACATE and REMAND.
*
Circuit Judge of the Seventh Circuit, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Duncan was indicted in September 1994 for: conspiracy to
violate the International Emergency Economic Powers Act (IEEPA), 50
U.S.C. §§ 1701-1706, by shipping prohibited goods to Libya (count
one); violating IEEPA, by aiding and abetting such shipping (count
two); and making a false statement on the shippers’ export
declaration, in violation of 18 U.S.C. § 1001 (count three).
A jury trial was held in November 1995. At the close of the
Government’s evidence, Duncan moved for judgment of acquittal. The
motion was granted as to count three, denied as to the others. The
jury found Duncan guilty on those two counts.
Post-verdict, Duncan again moved for judgment of acquittal.
In addition, he moved to dismiss the indictment, contending IEEPA
was, inter alia, an unconstitutional delegation to the Executive of
Congress’ power to enact criminal statutes.
While the motions were pending, a presentence investigation
report (PSR) was prepared. In January 1996, Duncan objected to the
PSR; sentencing was set for February. At that hearing, the court
stated: “[T]he evidence showed that [Duncan] knew [the goods were]
going to Libya and that he ... participated in some elaborate
attempt[] ... to disguise the ultimate destination”. Sentencing
was reset for March, then April.
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At the April hearing, however, the court delayed sentencing
and instructed the parties to brief the IEEPA constitutionality
issue raised in Duncan’s motion to dismiss. They did so.
As a condition of release, Duncan was required, inter alia, to
actively seek employment, remain in the Southern District of Texas,
report regularly to pretrial services, and surrender his passport.
In November 1996, the court granted Duncan’s request that his
passport be returned so he could work overseas. That December, the
Government moved for a sentencing hearing, noting that the Federal
Public Defender (FPD) objected. By letter to the court, Duncan
stated he would be unavailable, because he had accepted a job in
South America.
As some point, the court ordered Duncan to maintain contact
through correspondence. In May 1998, it entered an order relieving
Duncan of the requirement to report to pretrial services,
retroactive to March 1997.
Duncan continued to correspond with the court. In January
1999, he so advised it he had requested the FPD to prepare “one of
those one line court orders for your signature releasing me from
that ... bond I’m still under”.
In May 1999, approximately three and one-half years after
Duncan’s conviction, the court set sentencing for 12 July 1999.
Duncan failed to appear. Sentencing was reset for the next day.
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At the court’s request, the FPD, who Duncan had fired, appeared to
represent him.
At that hearing, the court, sua sponte, suggested dismissing
the indictment “in the interest[s] of justice” because, inter alia,
in the light of Duncan’s “five years effective probation”, his
“[c]onviction ... would accomplish nothing”. The FPD had no
objection. The Government objected, but without stating reasons.
Judgment was entered the next day: “In the interests of
justice, counts one and two against Larry R. Duncan are dismissed.
The court having acquitted Duncan on count three, this is a final
judgment”. Prior to entering judgment, the court had not ruled on
either Duncan’s post-verdict motion for judgment of acquittal or
his motion to dismiss.
II.
The brief, above-referenced colloquy at the May 1999
sentencing hearing follows:
THE COURT: We got together after a
considerable time at my request to inquire
whether after Mr. Duncan’s having been on
pretrial release for five years effective
probation, whether there is any utility to
enter ... a judgment of a conviction and a
sentence that will in all likelihood be simply
time served.
....
My proposal is that all that would be
gained by further proceedings here would be a
judgment of conviction which in itself would
be disproportionate until the sentence is
received by Kirk [and Be]ckford ... of D&[G]
Oil Field Services, Petroserve, and Mr. Duncan
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as the engineering daunts [sic] for the
operation has already been extensively
punished by having to stand trial and to be
under court supervision for five years.
Conviction, itself, would accomplish nothing,
and I propose to dismiss it in the interest of
justice.
Mr. Berg [FPD]?
MR. BERG: No objection.
THE COURT: Mr. Berry [AUSA]?
MR. BERRY: Your Honor, I would respectfully object.
(Emphasis added.)
A.
Duncan contends the Government failed to preserve its
challenge to the dismissal, by failing to specify the bases for its
objection. The Government responds that the sua sponte ruling at
the hearing denied it notice of any basis for which it could make
a more specific objection.
A specific objection is required to permit the court to hear
argument on, and resolve, an issue. E.g., United States v. Burton,
126 F.3d 666, 671 (5th Cir. 1997). But, the court raised the issue
sua sponte; accordingly, the only issue at hand was dismissal vel
non of the indictment “in the interests of justice”; and the
Government objected to such dismissal. The objection was
sufficient.
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B.
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We review de novo an “in the interests of justice” dismissal
of an indictment. Cf. United States v. Asibor, 109 F.3d 1023, 1039
(5th Cir.) (reviewing de novo denial of motion to dismiss
indictment for outrageous Government conduct), cert. denied, 522
U.S. 902 (1997); United States v. Gonzalez, 76 F.3d 1339, 1342 (5th
Cir. 1996) (reviewing de novo denial of motion to dismiss
indictment on double jeopardy grounds).
The district court cited no authority for dismissing the
indictment. In fact, one circuit has held that, “where the
indictment is legally sufficient”, a “district court may not
dismiss it simply because it deems the dismissal to be in the
interests of justice”. United States v. Carrier, 672 F.2d 300,
303-04 (2d Cir.) (emphasis added), cert. denied, 457 U.S. 1139
(1982).
A possible source of such dismissal-authority is the court’s
supervisory powers. Along this line, the Supreme Court has
identified “three purposes underlying use of” such powers, in the
context of reversing a conviction (not, as here, dismissing an
indictment): “to implement a remedy for violation of recognized
rights; to preserve judicial integrity by ensuring that a
conviction rests on appropriate considerations validly before the
jury; and ... as a remedy designed to deter illegal conduct”.
United States v. Hastings, 461 U.S. 499, 505 (1983) (internal
citations omitted).
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Assuming arguendo such powers can be used for dismissal of an
indictment “in the interests of justice”, there was no warrant for
doing so here. There is no holding that Duncan’s rights were
violated by the delay between the November 1995 conviction and July
1999 sentencing hearing. See United States v. Abou-Kassem, 78 F.3d
161, 167 (5th Cir.) (seven year delay between conviction and
sentencing not constitutional violation), cert. denied, 519 U.S.
818 (1996). Nor did the court rule that the evidence was
insufficient to convict; the post-verdict motion for judgment of
acquittal premised on that ground was not ruled on. In fact, at
the February 1996 hearing, the court stated the evidence was
sufficient. And, finally, Duncan does not claim the Government
acted illegally in prosecuting him.
III.
For the foregoing reasons, the dismissal is VACATED and this
case is REMANDED for further proceedings.
VACATED AND REMANDED
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