U.S. v. May
| Decision Date | 08 June 1987 |
| Docket Number | No. 86-4615,86-4615 |
| Citation | 819 F.2d 531 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James MAY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Julie Ann Epps, Royals, Hartung & Davis, Jackson, Miss., for defendant-appellant.
Joe M. Hollomon, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before RUBIN, RANDALL, and JOHNSON, Circuit Judges.
James May appeals his conviction on five counts of possession with intent to distribute controlled substances. 1 According to May, the district court abused its discretion in failing to dismiss the case with prejudice following the Government's violation of the Speedy Trial Act. 2 May also argues that the district court erred in refusing to suppress evidence obtained in a search of his residence. Finding May's arguments to be unavailing, we affirm the district court's judgment.
Following an undercover investigation, Mississippi Bureau of Narcotics (MBN) agents obtained a warrant on December 5, 1985, to search the residence and property of James "Peewee" May located on Whitehouse Road in Jackson, Mississippi. When they executed the warrant later that day, MBN agents discovered contraband hidden throughout May's residence. May was arrested later that evening, charged with state narcotics violations, and held in state custody until he eventually posted bond on December 12.
In the meantime and after meeting with MBN officials, federal authorities decided to charge May with federal narcotics violations as well. In connection with these charges, federal marshals arrested May as he left the state courthouse on December 12. May remained in federal custody until he posted bond on December 20.
A federal grand jury returned a six-count indictment on January 22, 1986, charging May with federal narcotics and firearms offenses. This initial indictment was dismissed without prejudice four weeks later at the Government's request during an ex parte hearing before a magistrate. 3 The next day, February 20, May was reindicted on five counts of possession with intent to distribute controlled substances and four counts of federal firearms offenses.
Following reindictment, May filed a motion asserting that the initial indictment should have been dismissed with prejudice based on the Government's failure to comply with the Speedy Trial Act. May pointed out that the initial indictment was returned forty-one days after his federal arrest, in violation of the Act's requirement of indictment within thirty days of arrest. 4 May also moved to suppress evidence discovered during MBN's December 5 search of his residence. According to May, the affidavit filed in support of MBN's request for a warrant failed to establish probable cause.
After conducting a pretrial hearing, the district court denied both motions. The district court acknowledged that the Government had violated section 3161(b) of the Speedy Trial Act by delaying more than thirty days beyond May's arrest before securing an indictment. The district court further acknowledged that the magistrate had failed to consider this violation or the factors set forth in 18 U.S.C. Sec. 3162(a)(1) in dismissing the initial indictment without prejudice. Nonetheless, applying the section 3162(a)(1) factors itself, the court concluded that the dismissal was properly without prejudice. The district court also concluded that the affidavit in support of MBN's request for a search warrant was adequate to establish probable cause to search May's residence. 5 May entered a conditional guilty plea to five counts of possession with intent to distribute controlled substances and then filed this appeal challenging the district court's denial of his speedy trial and fourth amendment claims.
Under section 3161(b) of the Speedy Trial Act, the Government must indict an accused within thirty days of his arrest, unless the time is extended for one of the eight reasons enumerated in section 3161(h). If the Government fails to meet this thirty-day requirement, section 3162(a)(1) requires the trial court to dismiss the complaint. Although dismissal is mandatory, the Act grants the trial court discretion to dismiss the complaint with or without prejudice. In exercising its discretion, the trial court must consider: (1) the seriousness of the offense; (2) the facts and circumstances of the case which led to dismissal; and (3) the impact of a reprosecution on the administration of the Act and on the administration of justice. 6
The second of these factors, the facts and circumstances leading to dismissal, presents the greatest difficulty in the instant case. This factor requires consideration of the Government's reason for having violated the Act. 7 Because the Government alone usually knows the reason for the delay, it bears the initial burden of explaining why the violation occurred. 8 Once the Government meets this initial burden, the defendant may show that the reason offered by the Government is pretextual. To establish pretext, the defendant is entitled to subpoena relevant documents and call Government officials to testify regarding the reasons for the violation.
In the instant case, the Government offered no explanation whatsoever for having failed to indict May within thirty days of his arrest. By standing mute, the Government forfeited its opportunity to establish an excuse for the delay that would weigh in favor of dismissal without prejudice. 9 May, on the other hand, failed to persuade the district court that the Government delayed the prosecution in a bad faith effort to harass May and persuade him to "snitch" on local government officials. 10 Our review of the record leads us to conclude that the district court's finding against May was not clearly erroneous. Nevertheless, the burden to explain the reason for the delay was on the Government, and it failed to do so. We must assume, therefore, that the delay was unjustified and weigh the second section 3162(a)(1) factor in favor of dismissal with prejudice. 11
Whether the district court properly weighed the lack of justification for delay against the Government is something less than crystal clear from the record. In response to the Government's silence, the district court assumed that the Government was at least guilty of negligence. What weight the court attached to this assumed negligence is unclear, although the district court did observe "that simple negligence is not enough to cause a dismissal under Section 3162 with prejudice." The district court may have considered negligence as a factor weighing in favor of dismissal without prejudice. 12 The court may, on the other hand, have simply meant that given the sum total of factors present in this case, the Government's negligence was not alone sufficient to require dismissal with prejudice. 13 Although the weight attached to the Government's silence by the district court is unclear, we need not remand this case for reconsideration. Here we are able to determine without additional assistance from the district court 14 that the case was properly dismissed without prejudice.
The first and third section 3162(a)(1) factors, seriousness of the offense and impact of reprosecution on the administration of the Act and on the administration of justice itself, both weigh heavily in favor of dismissal without prejudice. The district court found and May agrees that the offenses charged are serious. 15 Rather than dispute the seriousness of the charges, May argues that this factor is neutralized by the existence of pending state charges that overlap the federal charges. According to May, this pending state prosecution is sufficient to assure the administration of justice. Nothing in the record, however, indicates the status of the state prosecution. Absent a conviction on substantially related state charges, 16 we fail to see how the mere fact that state charges were filed reduces the Government's interest in prosecuting an individual charged with serious federal offenses.
When the charges are serious, courts should impose the sanction of dismissal with prejudice only for a correspondingly serious delay, especially in the absence of a showing of prejudice. 17 The delay in indicting May was relatively brief, he was free on bail and permitted to travel throughout the period of delay, and there has been no credible showing that May's defense was in any way impaired by the delay. May's vague assertion that the eleven-day delay in obtaining an indictment impaired his ability to finance his defense is insufficient to demonstrate any actual prejudice caused by the Government's failure to obtain an indictment within thirty days of his arrest. May has offered no concrete evidence whatsoever in support of this improbable assertion. Given the seriousness of the offense, the slightness of the delay, and the absence of any showing of prejudice, the first and third section 3162(a)(1) factors weigh in favor of permitting reprosecution.
The Government's failure to offer any explanation for the delay, or at least to explain why it could not explain, has made this a very close case. Its failure in this regard is indefensible and ignores its responsibility to the public, to the accused, and to the courts. Nonetheless, the lack of justification for the delay is outweighed by the seriousness of the charges and the fact that the public's interest in the administration of justice calls for reprosecution. The indictment was, therefore, properly dismissed without prejudice.
May attacks the search warrant authorizing the search of his residence on the ground that the affidavit supporting issuance of the warrant was defective. That affidavit relied primarily on information provided by unnamed agents of the MBN who were involved in...
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