U.S. v. Kramer, 86-5217
| Citation | 827 F.2d 1174 |
| Decision Date | 17 August 1987 |
| Docket Number | No. 86-5217,86-5217 |
| Parties | UNITED STATES of America, Appellant, v. Alvin August KRAMER, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lynn E. Crooks, Asst. U.S. Atty., Fargo, N.D., for appellant.
Irvin B. Nodland, Bismarck, N.D., for appellee.
Before LAY, Chief Judge, and MAGILL, Circuit Judge, and HANSEN, * District Judge.
The United States appeals the district court's dismissal with prejudice of an indictment against Alvin August Kramer. The district court found that Kramer's right to a speedy trial pursuant to the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 had been violated. On appeal to this court, the United States argues that the district court abused its discretion by dismissing the indictment with prejudice, rather than dismissing the indictment without prejudice. We agree and reverse.
In August, 1984, Kramer, the Executive Vice-President of the First Western Bank of Minot, North Dakota, resigned following discovery of banking irregularities. An investigation followed, and in January, 1985, the matter was prepared for presentation to a federal grand jury. The United States Attorney, however, chose to delay the matter, and did not present the matter to the grand jury until September, 1985.
On September 12, 1985, the grand jury returned a 17 count indictment against Kramer, charging him with 18 U.S.C. Sec. 656, misapplication of bank funds, and 18 U.S.C. Sec. 1005, false entries in bank records. Kramer initially appeared on September 26, 1985, and pleaded not guilty to the charges. The defendant filed discovery motions on October 8, 1985, which the district court ruled on December 12, 1985. Trial was set for January 13, 1986, before Senior Judge Bruce M. Van Sickle.
When the parties appeared for a pretrial conference on January 7, 1986, Judge Van Sickle recused himself based upon his uncertainty over senior judges' exemption from social security taxation. The only other available judge in the district at that time was Chief Judge Patrick A. Conmy, who had recently been a law partner of the defendant's counsel. Since it appeared that no qualified judge was available to preside at Kramer's trial, Chief Judge Conmy on January 8, 1986, continued the action up to 45 days, or until a judge could be assigned to the case. In his order, Judge Conmy waived the provisions of the Speedy Trial Act, finding that the interests of justice were served by granting the continuance, and the interests of the defendant and the public in having a speedy trial were outweighed.
Within a week it was apparent that Senior Judge Van Sickle was again presiding over cases, notwithstanding the continued uncertainty over social security taxation. In mid-February, the United States apparently learned that Judge Van Sickle was again presiding over this case, and was planning to commence the trial on February 27, 1986.
The defendant sought to dismiss the indictment on February 24, 1986, by filing a motion to dismiss in district court and seeking an extraordinary writ from this court pursuant to Fed.R.App.P. 21 in the event no qualified judge was available in the District of North Dakota. Kramer's motion was based upon several grounds, including failure to comply with the Speedy Trial Act. The government agreed that the case should be dismissed pursuant to the Speedy Trial Act, but maintained that dismissal should be without prejudice. Two days later, Senior Judge Van Sickle granted the motion based upon violations of the Speedy Trial Act, and dismissed the action "on its merits and with prejudice." Following the United States' motion for reconsideration, the district court confirmed the dismissal with prejudice.
The Speedy Trial Act requires the trial of a federal criminal defendant to commence within 70 days of arraignment or of the filing of the indictment, whichever is later. 18 U.S.C. Sec. 3161(c)(1). The Act lists a variety of delays that are excludable from the 70-day limit. 18 U.S.C. Sec. 3161(h). If trial is not held within 70 days, on motion of the defendant the indictment must be dismissed. 18 U.S.C. Sec. 3162(a)(2). The defendant has the burden of proving that dismissal is appropriate. Id. Although dismissal is mandatory when the Act is violated, the Act grants the trial judge the discretion to dismiss the indictment with or without prejudice. The Act does not accord a preference to either remedy. United States v. Brown, 770 F.2d 241, 243-44 (1st Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 816, 88 L.Ed.2d 789 (1986); United States v. Caparella, 716 F.2d 976, 978-80 (2d Cir.1983); United States v. Salgado-Hernandez, 790 F.2d 1265, 1267 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); United States v. Russo, 741 F.2d 1264, 1266-67 (11th Cir.1984).
The only evidentiary burden placed on a defendant by the Act involves the issue of whether dismissal should occur at all.
If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion....
18 U.S.C. Sec. 3162(a)(2) (emphasis added). The Act is silent as to who bears the burden of showing which form of dismissal is appropriate.
The Act does set out three factors to be considered in determining which form of dismissal is appropriate; (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. 18 U.S.C. Sec. 3162. These factors were not discussed by the trial court, and after our review of these factors we conclude that the trial court abused its discretion in dismissing the action with prejudice. We examine each of the factors in Sec. 3162 in turn.
Kramer was charged on 17 counts, each had a possible maximum sentence of five years imprisonment and a maximum fine of $5,000. 18 U.S.C. Secs. 656 and 1005. The indictment alleged that he misapplied bank funds in the amounts in excess of $365,000, and made false entries in bank records involving amounts in excess of $575,000. We conclude that the offenses charged against Kramer were serious. See, e.g., United States v. Peeples, 811 F.2d 849, 850 (5th Cir.1987) ().
This case suffers from the lack of an adequate factual record upon which a trial judge could exercise his discretion. While there are allegations and denials and counterallegations and counterdenials as to who did what when, there is little proof to go on and few, if any, fact findings made below. The government, the defendant, and the trial court all failed to clearly calculate the number of nonexcludable days between Kramer's arraignment on September 26, 1985, and the scheduled date of the commencement of trial on February 27, 1986.
From the clerk of the district court's docket (Record, p. 127-130), the following chronology can be established:
Total Elapsed
Non-Excludable
Date Event Time
---- ----- --------------
September 26, 1985 Initial appearance of the
defendant starts speedy
trial clock. (18 U.S.C
Sec. 3161(c)(1).)
October 8, 1985 Defendant files
discovery motions. Speedy
trial clock stops. (18
U.S.C. Sec. 316(h)(1)(F).) 11 days
October 15, 1985 Government resists
discovery motions
Motions deemed submitted
for purposes of calculating
excludable time
under 18 U.S.C
Sec. 3161(h)(1)(J)
(Henderson v. United States
476 U.S. ____, ____, 106
S.Ct. 1871, 1876, 90
L.Ed.2d 299,308 (1986).)
November 14, 1985 30-day excludable period
for determination of
discovery motions ends.
Speedy trial clock
resumes ticking.
(Henderson, supra.) 11 days
December 5, 1985 Pretrial set for 1/7/86
and trial set for 1/13/86.
December 12, 1985 Court rules on
defendant's discovery
motions. 39 days
January 7, 1986 Pretrial held. Judge
Van Sickle recuses himself. 65 days
January 8, 1986 Chief Judge Conmy
enters order continuing
case for 45 days and
waiving Speedy Trial
Act under Sec. 3161(h)(8)
(A). 66 days
January 13, 1986 Originally scheduled
trial date. (The 70th day
fell on Sunday, January
12th. Rule 45, Fed. R.
Crim. P., would extend
the time to the next day,
Monday, January 13th.) 70 days
(66 days if
order of continuance
is valid)
February 20, 1986 Notice of trial set for
February 27, 1986. 109 days
(66
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