U.S. v. Frye

• Decision Date: 04 June 2004
• Docket Number: No. 02-60524.,02-60524.
• Citation: 372 F.3d 729
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Edward FRYE, also known as Sealed Defendant 2, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

372 F.3d 729

UNITED STATES of America, Plaintiff-Appellant, v. James Edward FRYE, also known as Sealed Defendant 2, Defendant-Appellee.

No. 02-60524.

United States Court of Appeals, Fifth Circuit.

June 4, 2004.

Steven L. Lane (argued), U.S. Dept. of Justice, Crim., Div., App. Section, Washington, DC, for Plaintiff-Appellant.

Julie Ann Epps (argued), Canton, MS, Cynthia H. Speetjens, Frazer & Davidson, Cynthia Ann Stewart, Jackson, MS, for Defendant-Appellee.

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

Before DUHÉ, BARKSDALE and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The Government's interlocutory appeal presents two points: our jurisdiction; and the district court's ruling that the Government may not seek the death penalty against James Frye, pursuant to finding that, by misrepresenting it would not seek the penalty, the Government violated Frye's Sixth Amendment right to a speedy trial.

We have jurisdiction. And, because there has not been a speedy trial violation, we need not address the proper remedy. VACATED and REMANDED.^*

I.

Indicted in February 2001, Frye and Cooper were charged, inter alia, with the death-eligible offense of carjacking resulting in death, in violation of 18 U.S.C. § 2119(3). Trial was set for that May. Because of an April 2001 superseding indictment, it was re-set for August.

By an unopposed motion in early August, the Government was granted a continuance until October because Cooper was undergoing a competency examination that would not be completed until after the August setting. The order stated: "to deny the Motion would deny both defendants and the United States adequate time to prepare for trial and attend to pretrial matters necessitated by [Cooper's competency] examination"; "the ends of justice outweigh the right of defendants and the public to a speedy trial"; and "the defendants, by agreeing, have waived their rights to a speedy trial".

On 26 October 2001, the district court set a 15 January 2002 deadline for the Government to file its notice of intent to seek the death penalty against Frye, Cooper, or both. Four days later, on the joint motion of Frye and the Government, trial was re-set for 25 February 2002; the order stated that the continuance had been requested "on grounds all counsel need additional time to adequately prepare for trial" and referenced Frye's waiver of his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq.

Two weeks later (15 November), the United States Attorney for the Southern District of Mississippi requested permission from the Attorney General to seek the death penalty for Frye and Cooper; a meeting for that purpose was held at the Department of Justice (DOJ) on 10 December 2001. Cooper's counsel attended; Frye's participated by telephone (following video conference equipment malfunction).

That same day (10 December), Frye's counsel, by motion unrelated to the death penalty, stated that, if the Government elected to seek that penalty for Frye, it would be contrary to prior representations by the Assistant United States Attorney (AUSA) prosecuting the case; that, as Frye's counsel had "previously announced to this Court in a Status Conference, the expectation of the Government [and] counsel with regard to this case is that it would not be tried as a death penalty case".

A week later, this claim was repeated in more detail by motion, addressed the next day at a hearing. Frye's counsel stated: although they had originally begun planning to defend against the death penalty, the AUSA had assured them the Government would not seek that penalty; accordingly, Frye's counsel had not prepared for that defense. Concerning the AUSA's advising that seeking the penalty had been recommended to the Attorney General at the 10 December meeting, the court's position was that it had "understood at [a] status conference that ... [the AUSA was] trying to negotiate with Frye for a plea in exchange for his testimony as to Cooper and on that basis that you were not going to seek the death penalty against Mr. Frye".

On 15 January 2002, consistent with the deadline set by the 26 October order, the Government filed its notice of intent to seek the death penalty for Cooper and Frye. The next day, the district court severed their trials. (Not long thereafter, Cooper was tried and found guilty, but the death penalty was not imposed; his conviction was affirmed. United States v. Cooper, 71 Fed.Appx. 298 (5th Cir.2003) (unpublished), cert. petition filed, No. 03-8805 (8 October 2003)).

On 7 February 2002, Frye filed two motions: to dismiss due to speedy trial violations; and to preclude the death penalty due to prosecutorial misconduct. Ultimately, Frye's trial was continued to late July 2002.

By a comprehensive 20 May 2002 opinion and order, the motion to dismiss was granted in part. That motion requested the court to "dismiss the charges" against Frye. The district court understood the motion as incorporating two requests: "that [for speedy trial violations] the death penalty and/or the indictment should be dismissed".

The court found: post-superseding indictment in April 2001, trial had been set for 7 August 2001; because the AUSA represented to the court and Frye's counsel that the Government did not intend to seek the death penalty for Frye, the court had not required the Government to respond to Frye's numerous motions filed between 30 May and 12 July 2001; and, based on Frye's understanding that the Government was not seeking that penalty, Frye had joined motions to continue and waived his right to a speedy trial.

Based on these findings, the court found that, under the four-factor analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), Frye's Sixth Amendment speedy trial right had been violated. It recognized Frye's waivers of the right, but found them only partly valid. Because Frye's counsel represented that the waivers had been made on the basis of the Government's death penalty representations, the court found the waivers valid "with regard to the substantive statutory violations as charged" but not valid "with regard to the death penalty phase". The court, considering the death penalty sentencing hearing prescribed by 18 U.S.C. § 3593, found "allowing such a hearing to proceed would violate [Frye's] right to a [speedy] trial under the Sixth Amendment". Accordingly, it granted the motion to dismiss "insofar as the Government may not seek the death penalty in this case". (Hereinafter, "dismiss the death penalty" and "the dismissal" refer to this relief.) Concerning the other requested relief, the court denied the motion, based on claimed prosecutorial misconduct, to preclude the death penalty; denied, as moot, an unrelated motion to dismiss the death penalty; and denied or declined to reach all other requested relief. Among the claims not considered were: violation of the Speedy Trial Act; preclusion of the death penalty because of prosecutorial misconduct; and ineffective assistance of counsel because they relied on the AUSA's representations (this claim was ruled premature).

In mid-June 2002, the United States filed a notice of appeal from the dismissal; Frye cross-appealed shortly thereafter. (Although the record does not reveal the issues Frye wanted to raise by his appeal, he later claimed in his motion in our court seeking to dismiss the Government's appeal that one issue was the entire indictment's not being dismissed on Sixth Amendment speedy trial grounds.) On 29 July, the district court stayed proceedings pending appeal. At the hearing on the Government's stay-motion: Frye's counsel opposed a stay and requested a speedy trial; the court announced that, if the dismissal were reversed, on remand it would grant a continuance that might be requested by Frye; and his counsel stated that, during the pendency of this appeal, they would continue to prepare for a death penalty trial.

In April 2003 (after the Government's opening brief had been filed here), pursuant to Frye's motion and in order to develop the record on the facts underlying the dismissal, our court remanded this case to district court "to reconstruct status conferences and for transmission of that reconstruction to this court to be included on appeal". That June, the district court held a hearing for that purpose.

II.

Before we can address the dismissal, we must address our jurisdiction.

A.

In October 2002, on motion by the Government, a motions panel for our court dismissed Frye's cross-appeal for lack of jurisdiction and denied Frye's motion to dismiss this appeal for that same reason. That December, however, the Government filed a notice with our court, presenting the question of our jurisdiction. Although maintaining we have jurisdiction, the Government requested that, if it is lacking, we remand to enable the Government to remedy the jurisdictional defect. (The motions panel carried that matter with the case for disposition by this panel in ruling on the merits. Obviously, the alternative request to remand is rendered moot by our holding that we have jurisdiction.)

Government appeals in criminal cases are addressed in 18 U.S.C. § 3731; it enumerates categories of actions from which the Government may appeal. One category includes any "decision, judgment, or order of a district court dismissing an indictment... or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution". (The "or any part thereof" phrase was added on 2 November 2002, subsequent to both the Government's notice of appeal and denial of Frye's motion to dismiss but prior to the Government's jurisdictional notice. 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 3004, 116 Stat. 1758, 1805 (2002)...