U.S. v. Russo, 83-5122

• Decision Date: 27 August 1984
• Docket Number: No. 83-5122,83-5122
• Citation: 741 F.2d 1264
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph John RUSSO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1264

741 F.2d 1264

UNITED STATES of America, Plaintiff-Appellee, v. Joseph John RUSSO, Defendant-Appellant.

No. 83-5122.

United States Court of Appeals Eleventh Circuit.

Aug. 27, 1984.

Richard G. Chosid, Fort Lauderdale, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Linda Collins Hertz, Nancy L. Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HENDERSON and CLARK, Circuit Judges, and ATKINS ^*, District Judge.

PER CURIAM:

Joseph Russo appeals his conviction in the United States District Court for the Southern District of Florida on several drug offenses involving methaqualone. 21 U.S.C. Secs. 841(a)(1), 846. In this court, he asserts that the district court abused its discretion by dismissing an earlier indictment without prejudice, thereby authorizing his reprosecution and subsequent conviction. Agreeing with Russo's contention that the district court abused its discretion, we reverse.

This case has a fairly detailed procedural history, much of which is relevant to our disposition of the present appeal. ¹ On December 2, 1980, three defendants, Donald DeLongchamps, Harvey Mick and the appellant herein, Joseph Russo, were indicted for several drug-related charges. Arraignment followed on December 8, 1980. On December 31, 1980, thirty-two motions were filed on behalf of the various defendants. The magistrate assigned to the case disposed of all but one of the motions on January 23, 1981. The remaining motion for a hearing pursuant to United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979) was referred to the court and "carried with the trial."

On June 22, 1981, defense counsel filed a motion for a continuance which was accompanied by the defendants' speedy trial waivers. The court denied the continuance and trial began on July 8, 1981. Russo and DeLongchamps both were convicted ² and then appealed claiming a violation of the Speedy Trial Act (Act). 18 U.S.C. Secs. 3161-3174.

Before a panel of this court, the government took the position that by carrying of the motion for a James hearing until the trial, it remained under advisement by the court and thereby tolled the time constraints of the statute so that trial had commenced well within the seventy-day, statutory time period. The DeLongchamps court disagreed with this contention, however, pointing to the clear language of Sec. 3161(h)(1)(J) which limits the maximum excludable time allowable for any matter taken under advisement by the court to thirty days. The court then found that the total excludable time in that case was thirty days. Because trial took place long after seventy includable days had passed, the court concluded that the delay clearly violated the Act and remanded the case to the district court to determine whether the dismissal should be with or without prejudice. See United States v. DeLongchamps, 679 F.2d 217 (11th Cir.1982).

On remand, the district court initially concluded without a hearing, that the indictment should be dismissed with prejudice. After the government filed a petition for reconsideration, ³ the court conducted an evidentiary hearing at which time it reversed its original decision and granted a dismissal without prejudice. After the dismissal, the government reindicted and retried both defendants, again securing multiple convictions. On this second appeal, Russo ⁴ claims that the district court erred in dismissing the indictment without prejudice.

The language of the Act makes clear that both sanctions of dismissal with and without prejudice are available to remedy a violation of the Act. See 18 U.S.C. Sec. 3162. The federal courts are split, however, as to whether there is a preference for either remedy. Compare United States v. Angelini, 553 F.Supp. 367 (D.Mass.), aff'd on other grounds, 678 F.2d 380 (1st Cir.1982) (a presumption of dismissal with prejudice exists) with United States v. Caparella, 716 F.2d 976 (2d Cir.1983) (there is no presumption that dismissal be with prejudice) and United States v. McLemore, 447 F.Supp. 1229 (D.Mich.1978) (dismissal without prejudice the preferred remedy). Although there is no clear precedent in this circuit on whether either dismissal sanction should be given preference, after an examination of the statute and the opinions of the other courts that have confronted this issue, we find persuasive the analysis of the Second Circuit Court of Appeals' in United States v. Caparella, 716 F.2d 976 (2d Cir.1983).

The Caparella court correctly noted that "[a]bsent a clear indication of legislative intent to the contrary, the statutory language controls ...." Id. at 978 (quoting Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n. 3, 101 S.Ct. 2239, 2241 n. 3, 68 L.Ed.2d 744, 749 n. 3 (1981)). The language of the statute specifies the availability of both remedies. Therefore, without more, it is evident that neither dismissal sanction has priority. The Caparella court closely examined the legislative history of the statute and uncovered no evidence of a congressional intent to alter the statute's apparent facial meaning. ⁵ Accordingly, the court found that Congress did not intend to favor either result. We agree with this finding and conclude that in this circuit as well, neither remedy is preferred; the proper dismissal sanction to be imposed in each case is a matter left to the exercise of the sound discretion of the trial judge after consideration of the factors enumerated in the statute.

The Act sets out three factors to be considered in determining which of the two forms of dismissal sanction should take precedence: (1) the seriousness of the offense; (2) the facts and circumstances which led to the dismissal, and (3) the impact of reprosecution on administration of the Act and justice in general. See 18 U.S.C. Sec. 3162. A step-by-step analysis of each factor is necessary.

First, all parties agree that the offense is serious. Where the crime charged is serious, the court should dismiss only for a correspondingly severe delay. See United States v. Carreon, 626 F.2d 528 (7th Cir.1980). Although the exact number of days of inexcusable delay has been calculated in varying numbers, it is obvious that several months of includable time accumulated before the commencement of the trial. We express no opinion as to whether a delay of more than seventy days alone would warrant dismissal with prejudice. However, such an extensive postponement certainly militates toward that result.

Pretermitting the second factor momentarily, we turn to an evaluation of the impact of reprosecution on the Act and justice in general. The government urges that reprosecution would further the public's interest in justice in light of the serious nature of drug offenses and the public's interest in bringing such offenders to trial. Conversely, dismissal without prejudice can be viewed as frustrating the Act's mandate of swift prosecution since it would open the way to retrial after an even longer delay. Because these two competing interests fairly balance out, this factor cannot be said to weigh heavily on the side of dismissal with or without prejudice.

The near neutrality of the first and third factors requires a closer look at the facts and circumstances surrounding the delay. If the excess of includable time was justified, dismissal without prejudice is proper; otherwise, it is not.

At the outset, the government maintains that the original appella...