U.S. v. Hastings, 87-1782

• Decision Date: 04 January 1988
• Docket Number: No. 87-1782,87-1782
• Citation: 847 F.2d 920
• Parties: , 56 USLW 2734 UNITED STATES of America, Appellant, v. Kenneth S. HASTINGS, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 920

847 F.2d 920

98 A.L.R.Fed. 637, 56 USLW 2734

UNITED STATES of America, Appellant, v. Kenneth S. HASTINGS, Defendant, Appellee.

No. 87-1782.

United States Court of Appeals First Circuit.

Heard Jan. 4, 1988.

Decided May 17, 1988.

Rehearing and Suggestion for Rehearing In Banc Denied;

Mandate Constructively Recalled and Constructively

Reissued June 21, 1988.

Patty Merkamp Stemler, Appellate Section, Crim. Div. Dept. of Justice, Washington, D.C., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for appellant.

Linda J. Thompson with whom Myles Jacobson and Thompson, Thompson, Nagel & Jacobson, Springfield, Mass., were on brief, for defendant-appellee.

Before CAMPBELL, Chief Judge, and BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

On December 17, 1986, a federal grand jury charged defendant-appellee Kenneth S. Hastings with seven counts of possession of cocaine and methamphetamine with intent to distribute and one count of possession of a firearm during commission of a felony. See 21 U.S.C. Sec. 841(a)(1); 18 U.S.C. Sec. 924(c). A February 23, 1987 trial date was cancelled because no judge was available. This deferral soon brought the Speedy Trial Act (Act), 18 U.S.C. Secs. 3161-3174, into play. When seventy days next following indictment had elapsed without commencement of trial, Hastings moved to dismiss under 18 U.S.C. Sec. 3162(a)(2). Finding no excludable time, the district court dismissed the charges because of the delay, as required by the Act. See id. The court decreed that the dismissal would be without prejudice. United States v. Hastings, 667 F.Supp. 888 (D.Mass.1987) (Hastings I ). ¹

The grand jury wasted little time in reindicting appellee on substantially the same charges, adding one more drug count. During arraignment, it came to light that the government had thimblerigged its discovery responses in the original case. Hastings filed a flurry of motions, including one which asked the district court to reconsider its March 10 order. Concluding in effect that revelation of the discovery violation warranted conversion of the dismissal to one "with prejudice," the court obliged. United States v. Hastings, 667 F.Supp. 888, 894 (D.Mass.1987) (Hastings II ). Consequently, reprosecution was blocked.

The United States appeals, arguing that the breach of discovery rules was separate and apart from, and wholly unrelated to, any actual delay engendered in the course of Hastings's case--a point on which there can be no founded dispute--and thus, could not justify dismissal on speedy trial grounds. We agree. Although we share the district court's well-articulated indignation at the prosecution's cavalier approach to criminal discovery, we are persuaded that it was error to dismiss with prejudice under the Act.

I

We begin our exposition with a bit of history. In 1974, the United States District Court for the District of Massachusetts adopted a "Uniform Order for Automatic Discovery in Criminal Cases." This uniform order was intended to facilitate discovery, to shorten the time spent litigating run-of-the-mine pretrial matters, and to conserve the resources of the court and the parties. One important objective was to expedite the trial process. Prior to Hastings's first indictment, the basic features of the uniform order were translated into a local rule of court, which provided in pertinent part:

In all criminal cases, the following material and information in the possession, custody or control of the parties, the existence of which is known, or by the exercise of due diligence may become known, to the attorneys for the parties, shall be disclosed to the opposing party.

Such disclosure will be routine and automatic, i.e., without any court order in the particular case. It should occur as soon as counsels' trial engagements permit and in all events without fourteen (14) days after arraignment.

(a) The Government shall disclose, and allow the defendant to inspect, copy and photograph, all written material as follows:

* * *

* * *

(7) If any promises, rewards, or inducements have been given to any witnesses, a written statement of such promises, rewards or inducements

D.Mass.Loc.R. 42.

Despite the fact (now conceded) that an informant was paid and told he might receive further payments, the monition of Local Rule 42 failed to spark the prosecution's interest in Hastings's case. Neither the local rule nor the uniform order nor the entry of the latter in the case docket made much of an impression upon the United States Attorney's office (USAO). During the currency of the original indictment, the USAO deigned to furnish Hastings only the following information on the subject:

Pursuant to the Uniform Order for Automatic Discovery issued by the Court in the above matter on December 17, 1986, the government provides you with the following:

* * *

* * *

9. If any promises, rewards or inducements have been given to any witness that the government intends to call as a witness during trial of this case, you will be advised of same prior to the testimony of that witness.

For reasons which defy logical explanation, defendant did not immediately object to this response, nor did he file a motion or otherwise bring the nonanswer to the court's attention. When the court dismissed the indictment without prejudice because the speedy trial period had run, it was unaware of the government's high-handed tactic.

During arraignment on the new indictment, however, the balloon went up. The magistrate inquired whether the government had provided "automatic" discovery. When the prosecutor replied in the affirmative, defense counsel pointed out that the disclosure was patently inadequate as to promises, rewards, and inducements. It took the magistrate little time to see that this was so. He directed the government to obey Local Rule 42 and supply meaningful discovery. The rejoinder was less than fully informative. In relevant part, the USAO stated:

(4) Records [sic] and Inducements

The individual who assisted the government during its investigation of the defendant received $1,150.00. The Drug Enforcement Administration has also informed said individual that it may receive additional funds in the future. No other promises, records [sic] or inducements are known to have been provided.

Deeming this response too vague and uncertain, defendant sought further "automatic" discovery under the local rule. The prosecutor balked, refusing to supplement the reply without a court order requiring him to do so. It was at this juncture that Hastings simultaneously brought the motion for reconsideration of the dismissal and a flock of other motions, including a motion to compel the additional discovery, a motion to dismiss the second indictment, and a motion for sanctions.

While these motions were under advisement, the plot thickened. After digging through several layers of lame prosecutorial excuses, it became all too clear that the government's reluctance freely to furnish automatic discovery materials was chronic. The nonanswer spun to Hastings, it turned out, was the standard response provided by the USAO in criminal cases. ² This had the effect of standing the local rule on its head. The follow-on response could plausibly be viewed as a second link in the same rusty chain; there was evidence that the USAO, after being forced to admit that a rewarded informant was involved, routinely attempted to keep the informant's identity from the defense (whether or not there was any sound basis for claiming such confidentiality). In short, although "automatic" discovery was contemplated, the USAO admitted that it deliberately shifted the balance and placed the onus on the accused to take action (say, by moving for a court order) in order to obtain information which he was entitled to receive as of right.

Once this sorry state of affairs had been dragged into the sunlight, the district court acted. It treated the USAO's machinations as comprising a speedy trial problem, reasoning that subversion of Local Rule 42 could well result in trial delays. A defendant denied automatic discovery in this fashion would be placed snugly between a rock and a hard place: he could either forgo discovery to which he was entitled or he could file a motion to obtain it, thus stopping the speedy trial clock and easing the pressure on the government to bring him to trial. ³ By forcing the accused to open a window of prosecutorial opportunity for excludable delay, the USAO's routine evasion of Local Rule 42, in theory, could effectively circumvent the Act's time limitations. And such a practice would be particularly invidious with respect to a defendant who, like Hastings, was being detained pending trial.

The district court acknowledged that because Hastings had not taken the bait--defense counsel abjured the filing of any motions in respect to discovery--the government's gamesmanship had not gained it any time in this case. Rather, trial was delayed beyond the temporal limit due to wholly unrelated matters. Hastings II, at 895. The court observed that the violation of Local Rule 42 alone would not warrant dismissal of the indictment with prejudice, id. at 900, and that the accused had suffered no cognizable harm. Id. Nonetheless, the court revised its earlier finding of the USAO's good faith, and concluded that the Act and the administration of justice had been undercut. The district judge rightfully excoriated the government's conduct and stated unequivocally that he would have dismissed the original indictment with prejudice had he known the entire story. Id. at 900. Noting the systemic threat which the USAO's repeated use of vulpine discovery tactics posed, the court rectified its earlier "mistake" by barring reprosecution. Id. at 900.

II

The Act represents a point at which a variety of interests converge. For somewhat different reasons, perhaps, society, the prosecution, the accused, and the courts as an...