U.S. v. Dessesaure, Crim Action No. 03cr10191-NG.
| Decision Date | 21 November 2007 |
| Docket Number | Crim Action No. 03cr10191-NG. |
| Parties | UNITED STATES, v. Earl DESSESAURE, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Steven Winniman, Winniman & Winniman, Springfield, MA for defendant.
MEMORANDUM AND ORDER RE: SPEEDY TRIAL ACT DISMISSAL
This case involves the question of whether a violation of the Speedy Trial Act, 18 U.S.C. 3161(c)(1) requires an indictment's dismissal with or without prejudice. After a review of the record, which included errors by the government as well as by this Court, I conclude that a dismissal with prejudice is appropriate in this case. As I describe below, this is a deeply flawed prosecution—from the Boston police officer who lied in court, to the prosecutor who justified a blatantly illegal search, and then failed to act timely after the First Circuit concluded that the search could be salvaged notwithstanding the lies and the initial illegal entry. And those errors are compounded by this Court's delay in deciding defendant's motion, all the while the defendant was in jail. Given these circumstances, to allow this prosecution to continue would not advance the administration of justice; it would undermine it.
I. BACKGROUND
On June 4, 2003, Earl Dessesaure was indicted on four charges:
1. 18 U.S.C. § 922(g)(1)—Felon in Possession of Ammunition;
2. 21 U.S.C. § 841(a)(1)—Possession with Intent to Distribute a Controlled Substance;
3. 21 U.S.C. § 841(a)(1)—Possession with Intent to Distribute a Controlled Substance; and
4. 18 U.S.C. § 924(c)(1)(A)—Possession of a Firearm in Furtherance of a Drug Trafficking Crime. (Indictment of Earl Dessesaure, June 4, 2003, document # 7.) He has been in federal custody since his arrest, over four years.
Dessesaure filed a motion to suppress the fruits of two searches—a warrantless search of his car and a search pursuant to a warrant of his home—litigation which involved an evidentiary hearing and substantial briefing. On April 13, 2004, the defendant's motion to suppress evidence was granted in part and denied in part. See United States v. Dessesaure, 314 F.Supp.2d 81 (D.Mass.2004) (hereinafter "Dessesaure I"); United States v. Dessesaure, 323 F.Supp.2d 211 (D.Mass.2004) (hereinafter "Dessesaure II"). The search of defendant's car (and person) was affirmed, but the search of his house was not. Based on that ruling, this prosecution would have continued albeit only on charges stemming from the car search and the search incident to Dessesaure's arrest.
My suppression decision was based on two extremely troubling fact findings: First, I found that the search of Dessesaure's apartment was conducted by officers without a warrant or facts excusing a warrant under the guise of "freezing the scene." The rationale was, in a word, absurd: The officers illegally searched the house and then called back to the district attorney's office with the evidence they found in order that it may be included in the warrant application. Dessesaure II, 323 F.Supp.2d at 213. Second, I found that Boston Police Officer Broderick lied on the stand, in order to provide insurance in the event that the warrantless search of Dessesaure's apartment were found to be defective.1 He contrived the story that Dessesaure yelled, "call my people/peeps" upon his arrest and prior to the apartment search, as if to signal someone in the crowd to warn his girlfriend to destroy evidence in his apartment.2 Dessesaure II, 323 F.Supp.2d at 214. Accordingly, I suppressed evidence obtained from the apartment search, concluding there was insufficient probable cause to justify it with the false statements and tainted evidence excised. Moreover, given the lengths to which Officer Broderick went to gain illegal access to the apartment before a warrant was obtained, I concluded that it was not likely that the officers would have sought the warrant if the illegal search had turned up nothing. Dessesaure I, 314 F.Supp.2d at 94.
The government appealed; the First Circuit reversed, see United States v. Dessesaure, 429 F.3d 359 (1st Cir.2005) (hereinafter "Dessesaure III"), and on March 7, 2006, the mandate was issued (document # 50). The First Circuit did not question the finding that Officer Broderick had lied; it was a credibility determination and not, under the appellate standard, clearly erroneous. Nor did the First Circuit reverse the legal conclusion that one does not "freeze" a scene for Fourth Amendment purposes by actively searching it and relying on the fruits of the illegal search for a search warrant. On the contrary, the Court endorsed that finding and underscored my indignation that the argument had even been made. Indeed, the Court said:
One other issue deserves comment. Taking it as true that the officers lied (over the government's protest that this is an unfair characterization), the district court was understandably unhappy. The record shows more than a touch of frustration and building tension. At least some members of the Boston Police Department may have mistakenly believed that they were free, absent a search warrant or exigent circumstances, to enter a dwelling in order to `freeze' the scene. The district court was quite correct to state strongly that this is not the law:
There is no question that the police had no `right to freeze' the Quincy apartment where that meant entering it, looking around, searching, all the while ostensibly waiting for someone to get a warrant. Nothing in First Circuit or Supreme Court case law remotely justifies such a step. Nor should it. Searching without a warrant, on the assumption that the magistrate will no doubt agree with the officers that there is probable cause to search that location at that time, makes a mockery of Fourth Amendment protection. The warrant, and the review it requires, is reduced to a technicality.
Dessesaure III, 429 F.3d at 370 (quoting Dessesaure I, 314 F.Supp.2d at 92.
Rather, the Court parted company with by the lower court by concluding that there was probable cause without the tainted evidence. And, more significantly, the Court found "that even if there had been no illegal entry, there is no evidence these officers would not have sought a warrant." Dessesaure III, 429 F.3d. at 369 (citing Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)). The Court applied the Murray test—an "objective test"—taking into account the officers' statements, including, apparently, Officer Broderick's testimony—as part of the totality of the circumstances.
The First Circuit decided Dessesaure III on November 30, 2005, and denied en banc review on February 28, 2006. Nothing further happened in this case until June 6, 2006, three months later, when defendant filed a letter requesting appointment of counsel to try to appeal the Court of Appeals decision to the Supreme Court (document # 51). The letter was obviously untimely.
During a status conference held on June 29, 2006, this Court asked the parties whether the Speedy Trial Act had been violated. The government filed a brief conceding the violation but calling for a dismissal without prejudice. The defendant filed a brief calling for a dismissal with prejudice.
This Court had the matter under advisement for far too long, in part because of its struggle with the question of when and whether to dismiss an indictment with prejudice. I have concluded that a dismissal with prejudice is appropriate in this case.
The Speedy Trial Act ("STA") requires that a defendant be tried within seventy days of the latest of either the filing of an indictment or information, or the first appearance before a judge or magistrate. See United States v. Barnes, 159 F.3d 4, 9 (1st Cir.1998); 18 U.S.C. § 3161(c)(1). Upon violation of the STA, the statute calls for dismissal of the indictment on motion by the defendant. 18 U.S.C. § 3162(a)(2). The question is whether the indictment should be dismissed with or without prejudice. See id.
When determining whether to dismiss the indictment with or without prejudice, this Court considers: "(1) the seriousness of the offenses; (2) the circumstances leading to the delay; (3) the impact reprosecution would have on the administration of justice and the enforcement of the Speedy Trial Act; and (4) any related miscellaneous factors, including whether the delay resulted in actual prejudice to the defendant." Barnes, 159 F.3d at 16 (citing United States v. Hastings, 847 F.2d 920, 924 (1st Cir. 1988); 18 U.S.C. § 3162(a)(2)).
The government claims that the seventy-day limit prescribed by the STA was only exceeded by twenty-one days. (Pl. Br.1.) This is not accurate. The government has failed to include all of the necessary non-excludable days in its calculation.
The government only included days between the Court of Appeals mandate (March 7, 2006) and the filing of defendant's pro se request for an appointment of counsel (June 6, 2006).3 This period totals ninety-one days, exceeding the seventyday limit by 21 days. However, the government fails to include the non-excludable days that accrued prior to the government's appeal. 18 U.S.C. § 3161(h)(1)(E) states that any "delay resulting from any interlocutory appeal" shall be excluded "in computing the time within which the trial of any such offense must commence." Such time is excluded from the STA calculation, to be sure, but the clock'is pot reset to day one. See Henderson, 476 U.S. at 326-27, 106 S.Ct. 1871.
In an order dated July 22, 2003, Magistrate Judge Collings determined that between the date the indictment was returned, June 4, 2003, and August 29, 2003, there were eighteen non-excludable days (document # 12). All days between August 29, 2003, and this Courts filing of a Memorandum and Order partially granting and partially denying defendant's motion to suppress...
To continue reading
Request your trial
-
U.S. v. Dessesaure
...later, on November 21, 2007, the district court dismissed the indictment against Dessesaure "with prejudice." United States v. Dessesaure, 527 F.Supp.2d 193 (D.Mass.2007). The district court agreed that the crimes were "extremely serious" and that delay had been partly due to the court itse......