U.S. v. Dessesaure

• Decision Date: 24 February 2009
• Docket Number: No. 08-1029.,08-1029.
• Citation: 556 F.3d 83
• Parties: UNITED STATES of America, Appellant, v. Earl DESSESAURE, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

556 F.3d 83

UNITED STATES of America, Appellant, v. Earl DESSESAURE, Defendant, Appellee.

No. 08-1029.

United States Court of Appeals, First Circuit.

Heard February 2, 2009.

Decided February 24, 2009.

Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellant.

James B. Krasnoo, by appointment of the court, with whom Krasnoo/Klehm LLP was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

PER CURIAM.

In this appeal, the government challenges the district court's dismissal with prejudice—for violations of the Speedy Trial Act, 18 U.S.C. § 3161 (2006)—of its four-count indictment against Earl Dessesaure. The prosecutor concedes that the statute was violated, but says that government error was inadvertent and caused only a modest delay and no harm, so dismissal should have been without prejudice. The background, elaborated in the cited decisions, can be briefly summarized.

On June 4, 2003, Dessesaure was indicted on drug trafficking and gun charges.¹ He was arrested on the street with drugs; the police entered his apartment without a warrant and found more drugs in sight; and, obtaining a warrant, agents then made a detailed search and seized a gun, bullets, more drugs and drug paraphernalia, money, and relevant documents. After hearings in fall 2003, the district court on April 13, 2004, granted a suppression motion as to the evidence seized from the apartment. United States v. Dessesaure, 314 F.Supp.2d 81 (D.Mass.2004).

After failing to win reconsideration, United States v. Dessesaure, 323 F.Supp.2d 211 (D.Mass.2004), the government sought review, and this court reversed the district court's decision to suppress the evidence obtained pursuant to the warrant, ruling that it was admissible under the analysis set forth by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) and Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). United States v. Dessesaure, 429 F.3d 359, 365 (1st Cir.2005). The mandate issued March 7, 2006. Nothing more happened until June 6, 2006—a period of ninety-one days—when Dessesaure filed a letter requesting the appointment of counsel to file a petition for certiorari.

On June 14, 2006, the district court scheduled a status conference for June 29. There, the district judge questioned, sua sponte, whether the delay violated the Speedy Trial Act. The government's filing on July 14 conceded that a violation had occurred and urged a dismissal without prejudice. Dessesaure's counsel responded on August 8, 2006, saying he would move for dismissal with prejudice, although he did not then do so for a number of months.

On October 27, 2006, the district court held a hearing on the Speedy Trial Act issue, observing that it could pursue any of several options; that it was "tempted to dismiss with prejudice"; but that "most of these dismissals with prejudice are overturned." The court continued:

Given the state of the law, the odds are that I would be reversed, even though I strongly believe this is a case with misconduct, and this kind of fact-finding ought to be dismissed with prejudice. . . .

Dessesaure formally moved for dismissal with prejudice on December 18, 2006. Eleven months 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 itself, but said that the prosecution had "been flawed . . . in many respects" and the defendant had languished in jail for too long. Id. at 198.

The government now appeals and, neither facts nor governing law being seriously in dispute, our review is for "abuse of discretion." United States v. Kelley, 402 F.3d 39, 41 (1st Cir.2005). The issue is framed by the statutory scheme, a set of factors that the law makes relevant to choosing a remedy, and a pattern of case law that—as the district judge recognized—makes dismissal with prejudice a last and rare resort. Sansone, Annotation, 98 A.L.R. Fed. 660 (1990) (collecting case law on dismissal with prejudice under the statute).

The reason why such dismissals are ordinarily without prejudice is obvious. The Speedy Trial Act is a mechanical regime which, nominally, requires trial within 70 days of indictment but excludes various periods from the calculation. 18 U.S.C. § 3161(c)(1), (h). For the sake of both the public and the defendant, it aims at prompt resolution of criminal charges; but it would not long survive if administered to turn routine slips into permanent immunity for a defendant who may be quite dangerous.

Given a violation, the statute and precedent require the court to consider various factors. The statute itself provides:

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.

18 U.S.C. § 3162(a)(2).

Perhaps the most concrete elements are the seriousness of the offense, the cause of the delay and any resulting prejudice to the defendant's ability to get a fair trial if re-prosecuted. 18 U.S.C. § 3162(a)(2); United States v. Scott, 270 F.3d 30, 58 (1st Cir.2001); United States v. Hastings, 847 F.2d 920, 925-29 (1st Cir. 1988). Here, all three of these factors supported a dismissal without prejudice as the fit remedy.

Of the offenses charged, little need be said because their seriousness is so obvious. Hastings, 847 F.2d at 925. The combination of drug trafficking and guns has imposed a grim toll on society. If the evidence seized at Dessesaure's apartment is taken at face value—and he has not yet had a chance to defend...