U.S. v. Koory

• Decision Date: 01 April 1994
• Docket Number: No. 93-1792,93-1792
• Citation: 20 F.3d 844
• Parties: UNITED STATES of America, Appellee, v. Michael J. KOORY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 844

20 F.3d 844

UNITED STATES of America, Appellee, v. Michael J. KOORY, Appellant.

No. 93-1792.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1993.

Decided April 1, 1994.

David R. Stickman, Omaha, NE, argued, for appellant.

Michael G. Heavican, Omaha, NE, argued, for appellee.

Before MAGILL, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Michael J. Koory appeals the district court's ¹ refusal to dismiss a second indictment against him. Koory was originally indicted on one drug charge and one weapon charge. The district court dismissed the first indictment without prejudice, finding that the government had violated the Speedy Trial Act (the Act). See 18 U.S.C. Secs. 3161-3174. Koory was reindicted in a three-count drug and weapons indictment. Koory again moved to dismiss, arguing that the district court abused its discretion by refusing to dismiss the first indictment with prejudice. The district court overruled the motion to dismiss the second indictment. Thereafter, the government filed a three-count information against Koory to which he entered a conditional guilty plea. The guilty plea was conditioned upon Koory's right to appeal the district court's denial of his motion to dismiss the second indictment. Koory now appeals, and we affirm the district court's denial of Koory's motion to dismiss the second indictment.

I. Facts

On March 23, 1990, Nebraska officials arrested Koory at his place of business and charged him with state offenses of possession with intent to distribute cocaine and being a felon in possession of a firearm. Based on the same conduct, a federal grand jury indicted Koory on federal charges. Count I charged Koory with possessing cocaine, with intent to distribute, within 1,000 feet of an elementary school, in violation of 21 U.S.C. Secs. 841(a)(1) and 845a (now codified at 21 U.S.C. Sec. 860). Count II charged Koory with using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1). Because state and federal officials had been cooperating with regard to the prosecution of drug cases in Douglas County, Nebraska, the state prosecutor had been appointed as a Special Assistant United States Attorney (Special AUSA) to handle the prosecution of federal school zone cases which originated from state investigations. Acting in his primary role as a state prosecutor, the Special AUSA dismissed the state charges against Koory after the federal indictment was filed.

On December 31, 1990, Koory filed a motion to dismiss the indictment, alleging a violation of the 70-day time limit of the Speedy Trial Act. See 18 U.S.C. Sec. 3161(c)(1). At that time, approximately 129 includable days had elapsed under the Act, and the government conceded that the speedy trial time limits had expired. The parties stipulated that, if called to testify, the Special AUSA would testify that his failure to bring the case to trial within the time limits prescribed by the Act was due to his own negligence, but it was neither intentional nor for the purpose of obtaining a tactical advantage; he simply was unaware that the time limit had expired. The magistrate judge, in a thorough and well-reasoned report and recommendation, recommended that the district court dismiss the indictment without prejudice. The district court adopted the report and recommendation in its entirety and dismissed the indictment without prejudice.

On August 22, 1991, the grand jury returned a second indictment against Koory based on the same conduct that had been the subject of the first indictment. Counts I and II were identical to the counts of the first indictment. The government added count III, charging Koory with being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g) and 924(a)(2). Koory moved to dismiss the second indictment on the ground that the first indictment should have been dismissed with prejudice rather than without prejudice. The district court, on report and recommendation of the magistrate judge, denied the motion, finding that it had previously determined that dismissal with prejudice was not warranted and that there was no evidence of a violation of the Act in the second indictment.

Subsequently, and apparently pursuant to a plea agreement, the government filed a three-count information, charging Koory with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a) (but not within a school zone), with being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g) and 924(a), and with using a firearm in a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). Koory entered a conditional plea of guilty to this information. ² Koory conditioned his plea on his right to appeal the district court's denial of his motion to dismiss the second indictment, which was based upon his claim that the first indictment should have been dismissed with prejudice. The issue on appeal, therefore, is whether or not the district court abused its discretion in refusing to dismiss the second indictment upon Koory's claim that the first indictment should have been dismissed with prejudice.

II. Discussion

The Speedy Trial Act requires that a federal criminal defendant be brought to trial within 70 days of the filing of the indictment or of arraignment, whichever is later. United States v. Kramer, 827 F.2d 1174, 1176 (8th Cir.1987); 18 U.S.C. Sec. 3161(c)(1). When a violation of the time limits of the Act is shown to have occurred, dismissal is mandatory on motion of the defendant. Kramer, 827 F.2d at 1176; United States v. Wiley, 997 F.2d 378, 385 (8th Cir.1993); 18 U.S.C. Sec. 3162(a)(2). Although dismissal is mandatory, the district court has discretion to dismiss the indictment either with or without prejudice, and the Act does not indicate a preference between the two. United States v. Hamell, 3 F.3d 1187, 1189 (8th Cir.1993); Wiley, 997 F.2d at 385; Kramer, 827 F.2d at 1176. In determining whether or not to bar reprosecution, the Act mandates the district court to consider three factors: "(1) the seriousness of the offense; (2) the facts and circumstances which led to the dismissal, and (3) the impact of reprosecution on administration of the Act and justice in general." Kramer, 827 F.2d at 1176 (citing 18 U.S.C. Sec. 3162).

We will not overturn a district court's decision to allow or to bar reprosecution absent an abuse of discretion. Hamell, 3 F.3d at 1189; Wiley, 997 F.2d at 385. The district court must give careful consideration to all of the factors enumerated by Congress and clearly articulate how each is affected by the facts of the case and how each weighs into the court's determination. United States v. Taylor, 487 U.S. 326, 336-37, 108 S.Ct. 2413, 2419-20, 101 L.Ed.2d 297 (1988). When reviewing dismissal for a violation of the Act, we have said that "[a]n abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment." Kramer, 827 F.2d at 1179. The reviewing court's role is not to substitute its judgment for that of the trial court, but to ensure that the purposes of the Act are given effect. Taylor, 487 U.S. at 336, 108 S.Ct. at 2419. To this end, "[f]actual findings by a district court are, of course, entitled to substantial deference and will be reversed only for clear error." Id. at 337, 108 S.Ct. at 2419-20. Thus, "when the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed." Id. We consider in turn each factor of 18 U.S.C. Sec. 3162 in relation to the district court's dismissal of the first indictment.

A. Seriousness of the offenses.

The first factor under section 3162 requires us to consider the seriousness of the charged offenses. In the first indictment, the government charged Koory with possession of cocaine with intent to distribute within 1,000 feet of an elementary school and with using and carrying a firearm during and in relation to a drug trafficking crime. See 21 U.S.C. Secs. 841(a)(1), 860; 18 U.S.C. Sec. 924(c)(1). Koory argues that because only a small amount of cocaine was involved in his criminal conduct the seriousness of the offenses supports a dismissal with prejudice. The amount of cocaine involved in this case was less than 50 grams, but we find that the district court properly characterized the offenses involved as serious and did not abuse its discretion when it refused to bar reprosecution.

The district court initially noted that on count I, Koory was subject to a maximum term of imprisonment of up to 60 years, a fine of up to $4,000,000, and a 12-year term of supervised release, as provided for in 21 U.S.C. Sec. 841(b)(1)(C) and doubled by the provisions of 21 U.S.C. Sec. 845a (now Sec. 860(a)). On count II, Koory faced a mandatory minimum term of five years of imprisonment and a maximum of 20 years if the government succeeded in showing that this was his second offense involving the use of a gun in a drug-trafficking offense as the government contended. See 18 U.S.C. Sec. 924(c)(1). Furthermore, the district court found that Koory "stipulate[d] that the offenses charged are serious ones." (Appellant's Addendum Tab-1 at 24.) Based upon these factors, the district court found that the offenses charged against Koory were serious. Given the length of the applicable minimum and maximum sentences, the fact that it was charged as a second felony drug offense, the proximity to a school, and the defendant's stipulation, we cannot say that the district court abused its discretion in...