U.S. v. Sears, Roebuck and Co., Inc.

• Decision Date: 05 June 1989
• Docket Number: No. 88-5062,88-5062
• Citation: 877 F.2d 734
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, INC., aka Sears, aka Sears & Roebuck, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 734

877 F.2d 734

UNITED STATES of America, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, INC., aka Sears, aka Sears &amp Roebuck, Defendant-Appellee.

No. 88-5062.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1988.

Decided Jan. 26, 1989.

As Amended on Denial of Rehearing and

Rehearing En Banc June 5, 1989.

Victor D. Stone, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Stephen D. Miller, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, ALARCON and KOZINSKI, Circuit Judges.

FLETCHER, Circuit Judge:

This case involves the claim that Sears conspired to defraud the United States government by overstating to customs agents the price it had paid for television receivers purchased from Japanese manufacturers. The current appeal is the fifth pretrial appeal and the fourth time that the government has appealed a dismissal of the criminal indictment in this case. The government appeals the district court's dismissal of the indictment this time on the basis that the delay in spreading the appellate mandate violated the Sixth Amendment, Federal R.Crim.P. 48(b), and the Speedy Trial Act. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse.

I

A long and complicated history is prologue to this appeal. On February 26, 1980, the government filed a thirteen count indictment against Sears charging it with conspiracy to defraud the United States and entering television receivers into the United States by means of false statements in violation of 18 U.S.C. Sec. 542. Sears was initially unsuccessful both before the district court and this court in seeking dismissal of the indictment, United States v. Sears, 647 F.2d 902 (9th Cir.1981). Subsequently however, the district court dismissed the indictment, but it was reinstated on appeal, United States v. Sears, 518 F.Supp. 179 (C.D.Cal.1981), rev'd, 719 F.2d 1386 (9th Cir.1983).

On January 17, 1984, the government filed a superseding indictment alleging essentially the same facts, but relying on 18 U.S.C. Sec. 1001, rather than Sec. 542. The district court again dismissed the indictment, and this court summarily reversed and reinstated the indictment on appeal, United States v. Sears, No. 84-5091 (9th Cir. June 18, 1984). The district court dismissed the indictment again, this time on the basis of the statute of limitations. On March 25, 1986, this court yet again reinstated the indictment, holding that the filing date of the superseding indictment related back to the original indictment and thus did not violate the statute of limitations since the superseding indictment "did not expand or broaden" the original charges. This court also ordered the district court judge, Chief Judge Real, to transfer the case to another district court judge because "[t]he district judge's statements and conduct evidence an unwillingness to preside in this case." United States v. Sears, 785 F.2d 777, 781 (9th Cir.1986).

The mandate from this court issued on October 17, 1986 and was received by the district court three days later. A duplicate of the mandate was received by the district court on January 23, 1987. The duplicate mandate was apparently sent by the clerk of this court to the clerk of the district court because the district court clerk's office was unable to locate the original mandate when queried by government counsel as to its whereabouts. In the order dismissing the indictment, that is the subject of this appeal, the district court judge, Judge Hauk, characterized the receipt of the mandate as a lodging and as "premature."

On October 20, 1986, Sears filed for a writ of certiorari in the Supreme Court. At or about the same time, Chief Judge Real filed an independent action in the Supreme Court seeking a writ of mandamus and/or prohibition against this court from ordering him to reassign this case. The Supreme Court denied both Chief Judge Real's and Sears' petitions on December 1, 1986.

Government counsel phoned Chief Judge Real's courtroom Deputy Clerk on February 2, 1987 to inquire about the status of the mandate from this court and was told that the district court would not file or spread it pending the outcome of another case. At that time, Brown v. Baden & Yagman v. U.S. District Court for the Central District of California, 815 F.2d 575, 576 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987) ("Yagman II "), was pending before this court. In Yagman II, Chief Judge Real in effect challenged this court's authority to order him to reassign a case. On April 23, 1987, this court reaffirmed its authority to order the reassignment of a case and ordered Chief Judge Real a second time to transfer the Yagman case. Petition for rehearing in Yagman II was denied on June 26, 1987.

On March 27, 1987, the government wrote Chief Judge Real's courtroom Deputy Clerk asking that the mandate be filed and spread or, alternatively, that the district court outline its plans for procedure in the case. In response, the clerk placed a note in the court file stating "Judge said to take no action."

On June 23, 1987, the government formally moved before Chief Judge Real, requesting him to file and spread the mandate. On July 7, 1987, Sears moved for dismissal of the indictment on the basis of the Speedy Trial Act.

On July 10, 1987, Judge Real reassigned the case. The judge to whom the case was reassigned, Judge Hauk, continued the status hearing from July 20, 1987 to August 10, 1987. On August 10, 1987, Judge Hauk spread the mandate, heard oral argument on Sears' motion, and then indicated orally that he would order dismissal of the indictment. Judge Hauk issued his dismissal order and supporting memorandum in this case on January 19, 1988. 677 F.Supp. 1042.

II

Judge Hauk held that dismissal of the indictment was mandated by the Speedy Trial Act. The government argues that the Speedy Trial Act's sanctions do not apply to this case on the basis of 18 U.S.C. Sec. 3163(c), which states that sanctions "shall become effective and apply to ... all informations or indictments filed, on or after July 1, 1980." We review a district court's interpretation of the Speedy Trial Act de novo. United States v. Crooks, 804 F.2d 1441, 1445 (9th Cir.1986), modified, 826 F.2d 4 (9th Cir.1987).

Since the original indictment in this case was filed before July 1, 1980 but the superseding indictment was filed after July 1, 1980, this case presents the question of whether the date of the original or superseding indictment governs for purposes of determining the applicability of the Speedy Trial Act's sanctions.

The First Circuit has squarely addressed this issue. The government correctly relies on United States v. Mack, 669 F.2d 28 (1st Cir.1982), in which the First Circuit held that the Speedy Trial Act does not apply where the defendant entered a guilty plea before July 1, 1980, his plea was vacated on appeal in December 1980, and thereafter the dismissed counts of the original indictment were reinstated. The court concluded that "it is the date of the original arrest indictment or information that determines whether Sec. 3162 sanctions are applicable." Id. at 34. Mack built on United States v. Budzyna, 666 F.2d 666, 670 (1st Cir.1981), which held that the date of the original, pre-July 1980 indictment governed where the superseding indictment constituted "a mere amendment of the original." Sears does not argue that the superseding indictment in this case fails Budzyna 's "mere amendment" test, presumably because in United States v. Sears, 785 F.2d at 779, we found that the superseding indictment did not substantially change or broaden the original indictment. See also United States v. Felton, 811 F.2d 190, 194-95 (3d Cir.1987) (en banc) (suggesting that it would apply Budzyna where "a superseding indictment ... reformulated the earlier charges.").

The First Circuit's interpretation is persuasive. Since the legislative history does not address the specific question of superseding indictments, we must be guided by the overall purposes of Sec. 3163(c). The First Circuit reasoned that, since sanctions would not apply to a case originally filed before July 1, 1980, in which an appeal resulted in a new trial after July 1, 1980, "uniformity, consistency and predictability and [thus the statutory purpose of promoting the administration of criminal justice] required that sanctions not apply to a case originally filed before July 1, 1980 in which a collateral attack resulted in the reinstatement of the original indictments after July 1, 1980." Mack, 669 F.2d at 34. The same reasoning applies here. Since the original indictment would not have been subject to speedy trial sanctions had the government pursued it after this court reversed Chief Judge Real's dismissal order in Sears, No. 84-5091, the same should be true of the substantially identical indictment the government did in fact pursue.

III

Judge Hauk also found that dismissal was warranted under Fed.R.Crim.P. 48(b) which provides that "if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment." "It is within the trial court's inherent power to dismiss a case with prejudice [under Rule 48(b) ] for prosecutorial delay not amounting to a Sixth Amendment violation." United States v. Hattrup, 763 F.2d 376, 377 (9th Cir.1985). We review the district court's dismissal for want of prosecution under Fed.R.Crim.P. 48(b) for an abuse of discretion. See United States v. Gilbert, 813 F.2d 1523, 1531 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 173, 98 L.Ed.2d 127 (1987).

A Rule 48(b) dismissal should be imposed only in extreme circumstances. United States v. National Medical Enterprises, 792 F.2d 906, 912 (9th Cir.1986). Because of the sanction's severity, we have held that a district court abuses its discretion if it imposes the...