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USCA1 Opinion
August 21, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1109
UNITED STATES OF AMERICA,
Appellant,
v.
DOMINGO RAMIREZ, JR., ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Lay,* Senior Circuit Judge,
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and Pieras,** District Judge.
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F. Mark Terison, Assistant United States Attorney, with whom
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Richard S. Cohen, United States Attorney, and Margaret D. McGaughey,
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Assistant United States Attorney, were on brief for appellant.
Judy Potter for appellee Alejandro Rivas.
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Jeffrey D. Clements with whom Jensen Baird Gardner & Henry was on
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brief for appellee Domingo Ramirez, Jr.
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* Of the Eighth Circuit, sitting by designation.
** Of the District of Puerto Rico, sitting by designation.
PIERAS, JR., District Judge. This is an appeal from the
PIERAS JR. District Judge
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District Court of Maine's dismissal with prejudice of an
indictment for violation of the Speedy Trial Act, 18 U.S.C.
3161. The Speedy Trial Act ("STA") was violated when a number of
pretrial motions were not ruled upon within the thirty day time
period for evaluation, and the defendants were held for trial
beyond the seventy day limitation. At issue is whether the
district court abused its discretion by dismissing the indictment
with prejudice rather than dismissing it without prejudice. A
review of the record reveals that the district court did not
abuse its discretion, and therefore we affirm the district
court's dismissal with prejudice.
I. THE FACTS
I. THE FACTS
On June 12, 1991, defendants Domingo Ram rez, Jr. and
Alejandro Rivas were charged in a two count indictment with
possession of over 500 grams of cocaine with the intent to
distribute, and conspiracy to distribute, in violation of 21
U.S.C. 841(a)(1), 841(b)(1)(B) and 846. The defendants were
arraigned on June 21, 1991. Both defendants filed a number of
pretrial motions. Defendant Rivas filed his motions on July 5,
1991, and Ram rez filed his motions on July 8, 1991. The motions
were kept under advisement for eighty one days and were not ruled
upon by the district court until October 22, 1991, in violation
of
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the STA. The STA safeguards an accused's Sixth Amendment "right
to a speedy and public trial,"1 by mandating that:
In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment
with the commission of an offense shall commence within
seventy days from the filing date (and making public) of the
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information or indictment, or from the date the defendant
has appeared before a judicial officer of the court in which
such charge is pending, whichever date last occurs.
18 U.S.C. 3161(c)(1). Absent extenuating circumstances, not
present here, the STA provides for only a thirty day advisement
period by the court, when ruling upon pretrial motions. 18
U.S.C. 3161(h)(J). Thus, the STA was violated by the long
period of time with which the district court took the motions
under advisement.2
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1U.S. Const. amend. VI.
2The parties dispute the exact number of days by which the
permissible period was exceeded, but the dispute is immaterial to
the present appeal because both parties concede that the
defendants were detained beyond the STA 70 day limitation.
United States v. Taylor, 487 U.S. 326, 332 n.6 (1988) (where
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decision does not turn on distinction between a violation of "x"
as opposed to "y" number of days, appellate court need not decide
whether district court's numerical count of excludable days was
erroneous).
Furthermore, we conclude in the circumstances of this case,
that a delay of 31 days is just as serious as a delay of 46 days.
United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984)
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(delays of several months sufficient to bar reprosecution even
though crime serious), cited with approval in United States v.
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Hastings, 847 F.2d 920, 929 (1st Cir.), cert. denied, 488 U.S.
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925 (1988); but cf. United States v. Brown, 770 F.2d 241, 244
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(1st Cir. 1985) (delay of 35 days not exorbitant when due to
failure to anticipate a ruling by court of appeals on legal issue
not previously free from doubt as opposed to administrative
neglect), cert. denied, 474 U.S. 1064 (1986).
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3
When the district court granted the defendants' Motion to
Dismiss the Indictment based upon the STA violation, the
Memorandum of Decision placed the onus of the violation upon the
prosecutor and secondarily upon the administrative arm of the
court. Yet it is understood that the ultimate responsibility for
ruling upon pretrial motions in a timely manner, rests with the
court.3 United States v. McAfee, 780 F.2d 143, 146 (1st Cir.
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1985) (primary responsibility for meeting the Act's requirements
rests on the court despite its administrative confusion). The
prosecution agrees that the STA was violated but argues that it
was erroneous for the district court to dismiss the case with
prejudice, when the defendants had been charged with a serious
drug conspiracy and the violation was due to an isolated
administrative oversight within the court.
II. ANALYSIS
II. ANALYSIS
When considering whether an indictment should be dismissed
with or without prejudice, a district court must consider the
following factors set forth in section 3162(a)(2) of the Act:
1) the seriousness of the offense; 2) the facts and circumstances
of the case which led to the dismissal; and 3) the impact of a
reprosecution upon the administration of the Act and upon the
administration of justice. Factual findings of a district court
are entitled to substantial deference, and will only be reversed
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3In order to place the onus upon the prosecutor for notification
of an impending STA violation, the district court must rely upon
a written local rule, or other order of the court. United States
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v. Miranda, 835 F.2d 830, 833-34 (11th Cir. 1988).
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for clear error. Anderson v. Bessemer City, 470 U.S. 564 (1985).
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Yet, because the district court was required to apply the
statutory criteria of section 3162(a)(2) to the facts, we must
undertake a more substantive scrutiny to ensure that the judgment
is supported in terms of the factors delineated in the statute.
United States v. Taylor, 487 U.S. 326, 337 (1988). "[W]hen the
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statutory factors are properly considered, and supporting factual
findings are not clearly in error, the district court's judgment
of how opposing considerations balance should not lightly be
disturbed." Id.
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In the instant case, the defendants were indicted with the
possession of 500 grams of cocaine with the intent to distribute
it, which the district court found to be of "very substantial
seriousness." District Court Memorandum of Decision at 3. Thus,
the government's criticism that the District Court did not give
sufficient consideration to the seriousness of the offense is
without merit. Indeed, we have previously stated that "[b]y
their very nature, drugs-for-profit offenses are extremely
serious." United States v. Hastings, 847 F.2d 920, 925 (1st Cir.
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1988), cert. denied, 488 U.S. 925 (1990). It is apparent to us
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that the district court gave due weight to our admonition.
The facts and circumstances which led to the dismissal are
also of a serious nature because of the pervasiveness of such a
risk of administrative oversight in all courts. Nothing unusual
occurred in this case. The district court merely lost track of
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the STA deadline, in the midst of attending to its many other
cases.4 It is the ordinariness of the oversight which makes the
circumstances so serious. It can happen in any court, at any
time. The expansiveness of such a STA violation risk makes it
important for a court to correct for the sake of deterrence and
more painstaking vigilance.5 Even though the oversight was
accomplished without malice, that does not ameliorate the gravity
of its effects. When a STA violation is caused by the court or
the prosecutor, it weighs in favor of granting a dismissal with
prejudice. Hastings, 847 F.2d at 925. An administrative
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oversight is no excuse for a STA violation. United States v.
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Caparella, 716 F.2d 976, 980 (2d Cir. 1983).
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Upon consideration of the third and final factor of the
"dismissal with prejudice" analysis, the district court
appropriately found that the impact of reprosecution of the
defendants would be severe in this case. "Reprosecution in this
case would send exactly the wrong signal to those responsible for
complying with the Acts [sic] requirements and would, in all
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4The prosecution inaccurately contends that the district court
erroneously weighed this second factor because the district court
mistakenly thought that the defendants were incarcerated seven
months beyond the STA deadline. In actuality, the district court
merely noted that defendants had been incarcerated in excess of
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seven months while waiting for timely trial, not that they had
waited seven months in excess of the STA deadline. See District
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Court Memorandum of Decision at 3.
5See Martha L. Wood, Note, Determination of Dismissal Sanctions
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Under the Speedy Trial Act of 1974, 56 Fordham L. Review 509, 532
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(1987) (negligent violations are not necessarily incidental or
unusual but often are chronic and result of deeply ingrained
dilatory practices of both court and prosecutor).
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likelihood, foster in [the] future a cavalier regard, if not a
concerted disregard, of those requirements. Justice, as
visualized under the Act, will be poorly served by such a
precedent." District Court Memorandum of Decision at 4. Such an
observation by the district court was very astute given the fact
that dismissal with prejudice "is more likely [than dismissal
without prejudice] to induce salutary changes in procedures
reducing pretrial delays." United States v. Taylor, 487 U.S.
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326, 342 (1988). Even though a prosecutor does not bear the
burden of monitoring the court's compliance with the STA in
absence of an announced rule, district courts do look to
prosecutors for assistance as officers of the court.
Consequently, it is wise for prosecutors to be alert to STA
calculations in order to aid the court in its enforcement of the
STA. Logically, it was permissible for the "sovereign" as a
whole (both court and prosecutor) to be issued a cautionary
reminder in the form of a dismissal with prejudice, as to the
importance of the STA. Hastings, 847 F.2d at 925. "We recognize
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that whenever government - for whatever reasons - falls short of
meeting the Act's requirements, the administration of justice is
adversely affected." Hastings, 847 F.2d at 926 (legislative
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history of the Act demonstrates its importance in advancing both
the public and private interests in fair and expeditious trial of
criminal cases).
Given the above review of the district court's application
of the STA dismissal with prejudice analysis, we cannot conclude
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that the district court abused its discretion in dismissing the
indictment with prejudice, because the district court considered
each statutory factor and did not, for all that appears, make a
serious error of judgment in weighing them. See id. at 924
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(describing test for abuse of discretion). Therefore, the
district court's decision is hereby affirmed.
affirmed
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Document Info
Docket Number： 92-1109
Filed Date： 8/21/1992
Precedential Status： Precedential
Modified Date： 9/21/2015