U.S. v. Brown, No. 85-1338

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore CAMPBELL; DAVIS
Citation770 F.2d 241
Decision Date14 August 1985
Docket NumberNo. 85-1338
PartiesUNITED STATES of America, Appellee, v. Charles BROWN, Defendant, Appellant.

Page 241

770 F.2d 241
UNITED STATES of America, Appellee,
v.
Charles BROWN, Defendant, Appellant.
No. 85-1338.
United States Court of Appeals,
First Circuit.
Argued June 6, 1985.
Decided Aug. 14, 1985.

Owen S. Walker, Federal Public Defender, Boston, Mass., for defendant, appellant.

Sydney Hanlon, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Before CAMPBELL, Chief Judge, BREYER and DAVIS, * Circuit Judges.

DAVIS, Circuit Judge.

Charles Brown appeals from his conviction after reindictment for possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1) (1982), and for conspiracy to commit that crime, id., Sec. 846. He argues that the United States District Court for the District of Massachusetts violated the Speedy Trial Act of 1974, 18 U.S.C. Secs. 3161-3174 (1982), when it dismissed an earlier indictment for the same offenses without prejudice, instead of with prejudice which would have precluded reprosecution. We hold that the district court did not abuse its discretion by dismissing the prior indictment without prejudice.

I.

Brown and Ernest Middleton, along with two others, were arrested on February 2, 1983 and indicted seven days later. On September 14, 1983, both defendants filed a

Page 242

motion to dismiss, alleging that the Government failed to bring them to trial within the seventy-day period provided by the Speedy Trial Act (Act). The district court denied the motion, resting its decision largely on the provision excluding from the seventy-day limit a delay resulting from any pretrial motion. 18 U.S.C. Sec. 3161(h)(1)(f). Conditioning his plea upon his ability to appeal the denial, Brown pled guilty on October 21, 1983 to both possession with intent to distribute and conspiracy to distribute cocaine. Middleton, on the other hand, was convicted by a jury on December 8, 1983 of simple possession. Both defendants appealed the denial of the speedy trial motions. This court remanded so that the district court could reevaluate its denial in light of United States v. Mitchell, 723 F.2d 1040 (1st Cir.1983), which had been decided subsequent to the district court's speedy trial decision here. United States v. Brown, 736 F.2d 807 (1st Cir.1984) (Brown I). The opinion in Brown I specifically stated that if on remand the district court believed that the nonexcludable delay in processing the pre-trial motions did not meet the "reasonably necessary" time standard set forth in Mitchell, then the district court should vacate the conviction and dismiss the indictment "with or without prejudice, dependent on findings made under 18 U.S.C. Sec. 3162(a)(2)." 736 F.2d at 810. This statutory provision provides in relevant part:

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.

On remand, the district court (through the same judge) concluded that the time delay in question was not reasonably necessary for the processing of the pre-trial motions, and both indictments were accordingly dismissed. However, after weighing the appropriate factors, the court held that Brown's case was "sufficiently 'exceptional' to warrant dismissal without prejudice to reprosecution" (emphasis in original), while Middleton's case required dismissal with prejudice.

Because Brown's dismissal was without prejudice, he was reindicted on both counts on March 6, 1985. He filed a motion to dismiss asserting that the dismissal of his first indictment should have been with prejudice. That motion was denied, and after a jury-waived trial with stipulated facts before another judge, Brown was found guilty of the same charges as before. On April 12, 1985, he received a sentence of two years on each count, to run concurrently, and credit for the time already served on the earlier sentences which were each six months longer than the current sentences. Brown appeals from that conviction, arguing that the earlier case should have been dismissed with prejudice, thus barring the reindictment.

II.

Appellant contends that this court should apply a strict standard when reviewing the district court's speedy trial dismissal without prejudice. However, determination of whether dismissal shall be with or without prejudice is left to the sound discretion of the trial judge. In United States v. Pringle, 751 F.2d 419, 436 (1st Cir.1984), this court directed "the district court to enter an order granting defendant's motion to dismiss under the Speedy Trial Act, dismissing the indictments either with or without prejudice, as the court believes appropriate under Sec. 3162(a)(2) of the Speedy Trial Act." (Emphasis added.) It is clear from this holding that the application of Sec. 3162(a)(2) is discretionary with the trial judge. This position comports with other circuits' applications of Sec. 3162(a)(2). See United States v. Frey, 735 F.2d 350, 353 (9th Cir.1984) ("the district judge may make the dismissal for noncompliance with the Act either with or without prejudice, in his discretion"); United States v. Russo, 741 F.2d 1264 (11th Cir.1984); United States v. Bittle, 699 F.2d 1201, 1208 (D.C.Cir.1983) ("Sec. 3162 makes it

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clear that the trial court has discretion to dismiss the complaint with or without prejudice"); and United States v. Brainer, 691 F.2d 691 (4th Cir.1982).

Appellant nonetheless argues that a higher standard of review is required here because the district judge was required to pass on his own prior conduct. In Brown I, remand was back to the same trial judge, as may be...

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31 practice notes
  • United States v. Stevenson, No. 15-1942
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 9, 2016
    ...under the Speedy Trial Act whose seriousness is compounded by possession of a firearm during the offenses); United States v. Brown , 770 F.2d 241, 244 (1st Cir. 1985) (charges for distribution and conspiracy to distribute cocaine are “undeniably serious” and “militate in favor of dismissal ......
  • United States v. Green, No. 3:19-CR-233
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 9, 2020
    ...and the prejudice to the defendant stemming from the violation (or conversely, the absence of prejudice). See [ United States v. Brown , 770 F.2d 241, 245 (1st Cir. 1985) ]. Accord United States v. Bittle , 699 F.2d 1201, 1208 (D.C. Cir. 1983). The approach, ultimately, is discretionary, pe......
  • U.S. v. Law, Criminal Action No. 07-437.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 13, 2007
    ...See, e.g., Giambrone, 920 F.2d at 180 (noting with approval the trial court finding a narcotics offense serious); United States v. Brown, 770 F.2d 241, 244 (1st Cir.1985) ("The distribution of a substantial amount of a hard drug like cocaine is a serious and grave offense against socie......
  • United States v. Williams, CRIMINAL ACTION NO. 3:18-CR-153
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 27, 2021
    ...and the prejudice to the defendant stemming from the violation (or conversely, the absence of prejudice). See [United States v. Brown, 770 F.2d 241, 245 (1st Cir. 1985)]. Accord United States v. Bittle, 699 F.2d 1201, 1208 (D.C. Cir. 1983). The approach, ultimately, is discretionary, permit......
  • Request a trial to view additional results
31 cases
  • United States v. Stevenson, No. 15-1942
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 9, 2016
    ...under the Speedy Trial Act whose seriousness is compounded by possession of a firearm during the offenses); United States v. Brown , 770 F.2d 241, 244 (1st Cir. 1985) (charges for distribution and conspiracy to distribute cocaine are “undeniably serious” and “militate in favor of dismissal ......
  • United States v. Green, No. 3:19-CR-233
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 9, 2020
    ...and the prejudice to the defendant stemming from the violation (or conversely, the absence of prejudice). See [ United States v. Brown , 770 F.2d 241, 245 (1st Cir. 1985) ]. Accord United States v. Bittle , 699 F.2d 1201, 1208 (D.C. Cir. 1983). The approach, ultimately, is discretionary, pe......
  • U.S. v. Law, Criminal Action No. 07-437.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 13, 2007
    ...See, e.g., Giambrone, 920 F.2d at 180 (noting with approval the trial court finding a narcotics offense serious); United States v. Brown, 770 F.2d 241, 244 (1st Cir.1985) ("The distribution of a substantial amount of a hard drug like cocaine is a serious and grave offense against socie......
  • United States v. Williams, CRIMINAL ACTION NO. 3:18-CR-153
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 27, 2021
    ...and the prejudice to the defendant stemming from the violation (or conversely, the absence of prejudice). See [United States v. Brown, 770 F.2d 241, 245 (1st Cir. 1985)]. Accord United States v. Bittle, 699 F.2d 1201, 1208 (D.C. Cir. 1983). The approach, ultimately, is discretionary, permit......
  • Request a trial to view additional results

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