U.S. v. Carreon, 79-2130

• Decision Date: 09 July 1980
• Docket Number: No. 79-2130,79-2130
• Citation: 626 F.2d 528
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pablo CARREON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 528

626 F.2d 528

UNITED STATES of America, Plaintiff-Appellee, v. Pablo CARREON, Defendant-Appellant.

No. 79-2130.

United States Court of Appeals Seventh Circuit.

Argued April 30, 1980.

Decided July 9, 1980.

Adam Bourgeois, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U.S. Atty., Douglas Miller, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS and BAUER, Circuit Judges, and EAST, Senior District Judge. ^*

BAUER, Circuit Judge.

Defendant Pablo Carreon appeals from his conviction on one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and on seven counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Carreon contends that his statutory and constitutional speedy trial rights were violated, that he was entrapped, and that his rights under the double jeopardy clause of the Fifth Amendment were violated. We affirm the judgment of conviction on all counts.

I. Speedy Trial Rights

A. Procedural History

The original indictment against Carreon was filed on April 10, 1975. Shortly thereafter, he failed to appear at a scheduled plea hearing, and his case was placed on the district court's fugitive calendar, where it remained for over a year. Ultimately, Carreon reappeared, and his case was assigned to Judge Alfred Y. Kirkland. A hearing was set for September 2, 1976, at which time it was contemplated that Carreon would plead guilty to two counts of the indictment and that the government would seek dismissal of the remaining counts.

Because Judge Kirkland was unavailable on September 2, the hearing on Carreon's guilty plea was held before Judge John F. Grady. After eliciting Carreon's version of the facts, Judge Grady refused to accept the plea, ruling that an entrapment defense would be available if the facts were as Carreon had stated. On the following day, however, Carreon retendered his guilty plea to Judge Kirkland, who accepted it without detailed questioning. Carreon was sentenced to two concurrent terms of four years of imprisonment to be followed by three years of parole and was duly imprisoned.

On March 10, 1977, Carreon filed a petition under 28 U.S.C. § 2255 seeking to set aside his conviction on the ground that his guilty plea had been involuntarily given. The district court granted summary judgment for the government on the petition, and Carreon appealed to this Court. On May 3, 1978, while that appeal was pending, Carreon was released on parole; he had served twenty-six months in prison, including credit for time served prior to his conviction. On June 14, 1978, this Court reversed the district court's grant of summary judgment on the § 2255 petition, ruling that Carreon's guilty plea had not been taking in conformity with Fed.R.Crim.P. 11 and had not been made voluntarily. Carreon v. United States, 578 F.2d 176 (7th Cir. 1978) (Carreon I ).

Prior to June 28, 1978, when this Court's mandate in Carreon I would have issued, the government moved for an extension of time in which to petition for rehearing. That motion was granted, and the mandate of this Court was stayed until July 28, 1978. The government ultimately determined not to petition for rehearing, but, apparently because of a clerical oversight, the mandate did not issue on July 28. Meanwhile, Judge Kirkland conducted status calls in the case on June 22, August 8, and September 20, 1978; at the third status call, Judge Kirkland ordered that the case be removed from his calendar pending disposition by this Court. This Court's mandate in Carreon I finally reached the district court on December 5, 1978, but no further action was taken in the district court until May 1, 1979, when Judge Kirkland's illness caused the case to be reassigned to Judge Nicholas J. Bua.

Judge Bua held a status hearing on May 30, 1979; at that hearing Judge Bua vacated Carreon's conviction and sentence and ordered that he be permitted to withdraw his plea. The § 2255 action was then dismissed.

On June 15, 1979, the government moved to reopen the criminal case. Chief Judge James B. Parsons granted the motion and assigned the case to Judge Joel M. Flaum for arraignment. The arraignment was first set for June 26, but was continued to July 9, 1979, because Carreon was unavailable on the earlier date. On July 9, Carreon pleaded not guilty to all counts of the indictment, and trial was set for August 27, 1979.

On July 23, 1979, Carreon moved to dismiss the indictment with prejudice on speedy trial grounds. While this motion was pending, a superseding indictment was returned on August 21, 1979. On August 27, Judge Flaum denied Carreon's motion to dismiss the prior indictment with prejudice, ruling that it should be dismissed without prejudice. Carreon then pleaded not guilty to all counts of the superseding indictment. A bench trial was had, after which Judge Flaum found Carreon guilty on all counts and sentenced him to two years of probation on each count, the sentences to run concurrently. This appeal followed.

B. Speedy Trial Act Rights

Carreon first contends that the trial court erred in applying the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq. (1976). ¹ Specifically, Carreon maintains that § 3161(e) ² applies to this case, that its provision requiring retrial within sixty days of the final action occasioning retrial was violated, and that the trial court should have remedied the violation by dismissal of the original indictment with prejudice under the sanctions provisions in § 3162. ³ The government responds that § 3161(i) is the applicable subsection, ⁴ that even if § 3161(e) were applicable it was not violated, that no sanctions are available under the Act for a violation of either subsection, and that, in any event, the trial court correctly applied § 3162 in ruling that dismissal of the prior indictment should be without prejudice.

Our analysis of the Speedy Trial Act issue does not differ materially from that of the district court. The district court apparently assumed that the sanctions of § 3162 were applicable in this case to a violation of either § 3161(e) or § 3161(i). For purposes of our decision, we will also assume their applicability. ⁵ The district court next reasoned that it need not determine whether § 3161(e) was applicable, as Carreon contends, or whether § 3161(i) applied, as the government urges, ⁶ because § 3161(e) had not been violated, ⁷ and because, although § 3161(i) may have been violated, ⁸ that violation would not justify dismissal of the original indictment with prejudice under the provisions of § 3162(a)(2). We agree that we need not decide which subsection of § 3161 applies to the facts at bar, but we prefer to base our ruling on the broader ground that, even assuming a violation of the time limits of either subsection, dismissal of the original indictment with prejudice was not mandated by the provisions of § 3162(a)(2). The district court therefore acted within its discretion in dismissing the first indictment without prejudice.

In determining whether dismissal under § 3162(a)(2) should be with or without prejudice, the court must 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 reprosecution on the administration of this chapter and on the administration of justice." 18 U.S.C. § 3162(a)(2). As the district court noted, two of these factors favor dismissal without prejudice in this case. First, Carreon's crimes were serious, and the sanction of dismissal with prejudice should therefore be imposed only for a correspondingly serious delay. Second, the adverse impact of reprosecution on the administration of justice and the Speedy Trial Act would be slight. The defendant claimed no prejudice due to the delay, the government did not intentionally seek delay, ⁹ and the unusual circumstances of the case would be unlikely to recur, thus causing the sanctioning of similar delays in the future.

Consideration of the third factor, the facts and circumstances that led to the delay, also indicates that dismissal without prejudice was proper. The total delay of which Carreon appears to complain amounted to just over a year, or from June 14, 1978, when Carreon I was issued, to July 23, 1979, when Carreon moved for dismissal. Carreon has no cause to complain of the delay resulting from the stay of this Court's mandate until July 28, 1978. The delay in issuance of the mandate until December 5, 1978 was due not to the government but to a court error; although the government did not move for issuance of the mandate, neither did Carreon, who was the prevailing party and who makes no contention that he was not represented by counsel during the delay. Similarly, the delay between December 5, 1978 and May 30, 1979 was apparently due to Judge Kirkland's illness and the fact that Judge Kirkland had removed the case from his calendar. Carreon took no steps in the district court to cut short this delay. ¹⁰ Finally, we note that the two-week delay between June 26 and July 9, 1979 was due to Carreon's unavailability. Because the delay was in major part due to the negligence of the parties and oversight in the courts, and because Carreon failed to assert his speedy trial rights or otherwise move to expedite the case prior to July 23, 1979, the reasons for the delay do not mandate dismissal of the prior indictment with prejudice. Accordingly, the trial court acted within its discretion in determining that to try Carreon would not violate the Speedy Trial Act.

C. Sixth Amendment Speedy Trial Right

What we have already said largely disposes, we think, of Carreon's complaint that his Sixth Amendment speedy trial right was violated. Although Sixth Amendment speedy trial issues require a careful, ad hoc balancing approach, four critical factors are to be examined in every case. These are the "(l) ength of delay, the reason for the delay, the...