U.S. v. Russo, No. 83-5122

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore HENDERSON and CLARK; PER CURIAM; ATKINS
Citation741 F.2d 1264
Docket NumberNo. 83-5122
Decision Date27 August 1984
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph John RUSSO, Defendant-Appellant.

Page 1264

741 F.2d 1264
UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph John RUSSO, Defendant-Appellant.
No. 83-5122.
United States Court of Appeals,
Eleventh Circuit.
Aug. 27, 1984.

Page 1265

Richard G. Chosid, Fort Lauderdale, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Linda Collins Hertz, Nancy L. Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before HENDERSON and CLARK, Circuit Judges, and ATKINS *, District Judge.

PER CURIAM:

Joseph Russo appeals his conviction in the United States District Court for the Southern District of Florida on several drug offenses involving methaqualone. 21 U.S.C. Secs. 841(a)(1), 846. In this court, he asserts that the district court abused its discretion by dismissing an earlier indictment without prejudice, thereby authorizing his reprosecution and subsequent conviction. Agreeing with Russo's contention that the district court abused its discretion, we reverse.

This case has a fairly detailed procedural history, much of which is relevant to our disposition of the present appeal. 1 On December 2, 1980, three defendants, Donald DeLongchamps, Harvey Mick and the appellant herein, Joseph Russo, were indicted for several drug-related charges. Arraignment followed on December 8, 1980. On December 31, 1980, thirty-two motions were filed on behalf of the various defendants. The magistrate assigned to the case disposed of all but one of the motions on January 23, 1981. The remaining motion for a hearing pursuant to United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979) was referred to the court and "carried with the trial."

On June 22, 1981, defense counsel filed a motion for a continuance which was accompanied by the defendants' speedy trial waivers. The court denied the continuance

Page 1266

and trial began on July 8, 1981. Russo and DeLongchamps both were convicted 2 and then appealed claiming a violation of the Speedy Trial Act (Act). 18 U.S.C. Secs. 3161-3174.

Before a panel of this court, the government took the position that by carrying of the motion for a James hearing until the trial, it remained under advisement by the court and thereby tolled the time constraints of the statute so that trial had commenced well within the seventy-day, statutory time period. The DeLongchamps court disagreed with this contention, however, pointing to the clear language of Sec. 3161(h)(1)(J) which limits the maximum excludable time allowable for any matter taken under advisement by the court to thirty days. The court then found that the total excludable time in that case was thirty days. Because trial took place long after seventy includable days had passed, the court concluded that the delay clearly violated the Act and remanded the case to the district court to determine whether the dismissal should be with or without prejudice. See United States v. DeLongchamps, 679 F.2d 217 (11th Cir.1982).

On remand, the district court initially concluded without a hearing, that the indictment should be dismissed with prejudice. After the government filed a petition for reconsideration, 3 the court conducted an evidentiary hearing at which time it reversed its original decision and granted a dismissal without prejudice. After the dismissal, the government reindicted and retried both defendants, again securing multiple convictions. On this second appeal, Russo 4 claims that the district court erred in dismissing the indictment without prejudice.

The language of the Act makes clear that both sanctions of dismissal with and without prejudice are available to remedy a violation of the Act. See 18 U.S.C. Sec. 3162. The federal courts are split, however, as to whether there is a preference for either remedy. Compare United States v. Angelini, 553 F.Supp. 367 (D.Mass.), aff'd on other grounds, 678 F.2d 380 (1st Cir.1982) (a presumption of dismissal with prejudice exists) with United States v. Caparella, 716 F.2d 976 (2d Cir.1983) (there is no presumption that dismissal be with prejudice) and United States v. McLemore, 447 F.Supp. 1229 (D.Mich.1978) (dismissal without prejudice the preferred remedy). Although there is no clear precedent in this circuit on whether either dismissal sanction should be given preference, after an examination of the statute and the opinions of the other courts that have confronted this issue, we...

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69 practice notes
  • United States v. Stevenson, No. 15-1942
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 9, 2016
    ...for the proposition that “[s]ome affirmative justification must be demonstrated to warrant a dismissal without prejudice” is inapposite. 741 F.2d 1264, 1267 (11th Cir. 1984) (per curiam) (reversing the district court's decision to dismiss without prejudice where the only reason for a severa......
  • United States v. Solnin, No. 12–cr–040 ADS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 23, 2015
    ...this type of delay would warrant dismissal of the relevant counts of an indictment with prejudice. See United States v. Russo, 741 F.2d 1264, 1267 (11th Cir.1984) (several months of delay in violation of the Speedy Trial Act sufficient to bar re-prosecution). In any event, regardless of whe......
  • United States v. Bert, No. 14–2428–cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 10, 2015
    ...Taylor, 487 U.S. at 343, 108 S.Ct. 2413, dismissal with prejudice may be appropriate without such a finding, see United States v. Russo, 741 F.2d 1264, 1268 (11th Cir.1984) (“[W]here the violation is substantial, a negligent failure to comply with the Act will not suffice to justify retrial......
  • Godwin v. United States, Case No.: 3:15-cv-1309-J-34JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 26, 2018
    ...of the sound discretion of the trial judge after consideration of the factors enumerated in the statute." United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). Here, even if the Superseding Indictment was filed outside § 3161(b)'s time limit, Godwin has failed to present any facts o......
  • Request a trial to view additional results
69 cases
  • United States v. Stevenson, No. 15-1942
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 9, 2016
    ...for the proposition that “[s]ome affirmative justification must be demonstrated to warrant a dismissal without prejudice” is inapposite. 741 F.2d 1264, 1267 (11th Cir. 1984) (per curiam) (reversing the district court's decision to dismiss without prejudice where the only reason for a severa......
  • United States v. Solnin, No. 12–cr–040 ADS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 23, 2015
    ...this type of delay would warrant dismissal of the relevant counts of an indictment with prejudice. See United States v. Russo, 741 F.2d 1264, 1267 (11th Cir.1984) (several months of delay in violation of the Speedy Trial Act sufficient to bar re-prosecution). In any event, regardless of whe......
  • United States v. Bert, No. 14–2428–cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 10, 2015
    ...Taylor, 487 U.S. at 343, 108 S.Ct. 2413, dismissal with prejudice may be appropriate without such a finding, see United States v. Russo, 741 F.2d 1264, 1268 (11th Cir.1984) (“[W]here the violation is substantial, a negligent failure to comply with the Act will not suffice to justify retrial......
  • Godwin v. United States, Case No.: 3:15-cv-1309-J-34JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • November 26, 2018
    ...of the sound discretion of the trial judge after consideration of the factors enumerated in the statute." United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). Here, even if the Superseding Indictment was filed outside § 3161(b)'s time limit, Godwin has failed to present any facts o......
  • Request a trial to view additional results

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