U.S. v. Wright, 91-3244

• Citation: 6 F.3d 811
• Decision Date: 10 January 1994
• Docket Number: No. 91-3244,91-3244
• Parties: UNITED STATES of America v. Keith G. WRIGHT, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 811

6 F.3d 811

303 U.S.App.D.C. 352

UNITED STATES of America v. Keith G. WRIGHT, Appellant.

No. 91-3244.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 8, 1993.

Decided Oct. 15, 1993.

Rehearing and Suggestion for Rehearing En Banc

Denied Jan. 10, 1994.

Appeal from the United States District Court for the District of Columbia (D.C.Cr. No. 90-00517-01).

James T. Maloney, Washington, DC (appointed by the Court) argued the cause, for appellant.

Robert T. Swanson, Asst. U.S. Atty., Washington, DC, argued the cause, for appellee. With him on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher and Roy W. McLeese, III, Asst. U.S. Attys., Washington, DC.

Before: MIKVA, Chief Judge, WALD and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

Keith G. Wright appeals his conviction on two counts of distributing crack cocaine. As grounds for reversal, Mr. Wright asserts that the district court abused its discretion in dismissing his previous indictment without prejudice to reprosecution under the Speedy Trial Act. Although we have concerns about the ad hoc nature of the Government's procedures for complying with the Speedy Trial Act, we hold that the district court did not abuse its discretion and we affirm Mr. Wright's subsequent conviction.

I. Background

Appellant Keith Gregory Wright was arrested on February 26, 1990 for selling crack cocaine to an undercover police officer. On March 27, 1990, he was indicted for conspiracy to possess with intent to distribute and/or conspiracy to distribute cocaine, distribution of cocaine (3 counts), and using and carrying a firearm in connection with the conspiracy to distribute cocaine. His attorney filed three pretrial motions, opposed by the Government, on June 6 and June 13. After a hearing on July 11, the district court took all three motions under advisement; on July 19 the court denied one of the three.

Thereafter, because of scheduling difficulties, the district court apparently lost track of the defendant. The court did not initially set a trial date, and thus there was no "triggering" mechanism to bring the case back to the court's attention. According to the district judge, "[t]he case simply escaped the collective consciousness of the Court's chambers. The same appears to have happened to the United States Attorney's Office and defense counsel, quite understandably, like the legendary Scheherezade, discreetly remained silent."

On October 2, 1990, Mr. Wright and his attorney broke their silence: they moved to dismiss the indictment under the Speedy Trial Act, alleging that 87 non-excludable days had passed since Mr. Wright's indictment (the Act allows only 70 days). The district judge held a hearing on October 5, in which he explained the oversight, apologized to Mr. Wright, and ruled on the last two motions he had taken under advisement (denying both). In its October 12 response to defendant's Speedy Trial motion, the Government admitted that it had exceeded the statutory period and that the Act required dismissal. The parties then briefed the issue of whether that dismissal ought to be with or without prejudice to reprosecution.

On October 24, 1990, the district court dismissed the indictment without prejudice. In a brief order, the court considered each of the three statutorily required factors: the seriousness of the crime, the facts and circumstances leading to the violation, and the impact of reprosecution on the administration of the Act and on the administration of justice. 18 U.S.C. Sec. 3162(a)(2). He ruled that the offenses charged were serious; that the violation was not a product of abuse by the Government but was merely an "isolated unwitting violation"; and that there would be no adverse impact from reprosecution.

The Government subsequently re-indicted Mr. Wright on two counts of distribution of cocaine. After a jury trial in May 1991, during which the defense presented no evidence, Mr. Wright was convicted on both counts. He appeals only the district court's October 24, 1990 ruling dismissing his Speedy Trial Act claim without prejudice.

II. Analysis

The Speedy Trial Act, 18 U.S.C. Sec. 3161, et seq. ("Act"), requires that a criminal defendant be brought to trial within 70 days of indictment, 18 U.S.C. Sec. 3161(c)(1), excluding certain specified reasons for delay. 18 U.S.C. Sec. 3161(h). In this case, the Government concedes that it failed to try Mr. Wright within 70 non-excludable days and thus violated the Act. Specifically, the Government and Mr. Wright agree that the delay totaled 87 non-excludable days as of October 2, 1990, the day defendant filed his motion to dismiss.

Upon a violation and upon defendant's motion, the Speedy Trial Act requires the district court to dismiss the indictment. 18 U.S.C. Sec. 3162(a)(2). The pivotal issue in this case is whether that dismissal should be with or without prejudice. The Act reads:

In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.

18 U.S.C. Sec. 3162(a)(2). In the authoritative case on this provision, the Supreme Court has observed that Congress left the prejudice decision "to the guided discretion of the district court." United States v. Taylor, 487 U.S. 326, 335, 108 S.Ct. 2413, 2419, 101 L.Ed.2d 297 (1988); see also United States v. Bittle, 699 F.2d 1201, 1208 (D.C.Cir.1983). The statute itself does not favor either form of dismissal over the other. Taylor, 487 U.S. at 334-35, 108 S.Ct. at 2418-19. Thus, an appellate court should review a district court's decision under this provision only for abuse of discretion: The question is whether the district court considered the prescribed factors and clearly articulated their effect on its decision. Id. at 336-37, 108 S.Ct. at 2419-20. "[W]hen 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. at 337, 108 S.Ct. at 2420.

A. Seriousness of the Offense

At the time the district court ruled on his motion to dismiss under the Speedy Trial Act, Mr. Wright had been indicted on: two counts of distribution of 50 or more grams of cocaine base; one count of distribution of 5 or more grams of cocaine base; one count of conspiracy to possess with intent to distribute and/or conspiracy to distribute 50 or more grams of cocaine base; and one count of using and carrying a firearm during and in relation to the conspiracy offense. The district court correctly characterized these offenses as "serious" for purposes of the Speedy Trial Act's first factor, and weighed that factor against the defendant in deciding whether to dismiss with or without prejudice.

Mr. Wright does not directly dispute this finding, but he complains that the deluge of drug cases in the federal courts renders virtually every crime "serious" for Speedy Trial Act purposes. We join Mr. Wright in lamenting the number of grave offenses that come before the district court. But we note that his is hardly the least grave among them. We decline to hold that the number of serious offenses committed in the District of Columbia, or the number tried in federal court, can diminish the seriousness of a particular defendant's crimes for Speedy Trial Act purposes. The district court should judge the seriousness of an offense upon its own merits, and not by whether or not it is commonplace.

B. Facts and Circumstances Leading to the Violation

Mr. Wright argues that the district court abused its discretion by treating the failure to bring Mr. Wright to trial as a "neutral factor," rather than as a point against the Government. According to Mr. Wright, the Government has the burden of bringing a defendant to trial on time; any failure to do so is the Government's failure and supports a dismissal with prejudice. But Mr. Wright's argument obfuscates the issue. Carried to its logical extreme, its implication is contrary to the language of the statute, to precedent, and to the policies behind the Speedy Trial Act.

The statute clearly does not presume that every violation of the Act ought to trigger a dismissal with prejudice. On the contrary, it explicitly grants discretion to the district court to decide what form of dismissal is appropriate, based partly on the facts and circumstances that led to the violation. As Taylor states, an important part of the "facts and circumstances" inquiry is whether the Government has engaged in a "pattern of neglect," or, in contrast, whether the violation represents an "isolated unwitting violation." Taylor, 487 U.S. at 339, 108 S.Ct. at 2420-21. Several circuit courts have emphasized this distinction in evaluating prejudice decisions under the Act. See, e.g., United States v. Kottmyer, 961 F.2d 569, 572-73 (6th Cir.1992) (dismissing without prejudice because no "pattern" or "intentional dilatory conduct" was shown); United States v. Giambrone, 920 F.2d 176, 180-82 (2d Cir.1990) (finding a "pattern of neglect" in a particular United States Attorney's Office); see also United States v. Arango, 879 F.2d 1501, 1508 (7th Cir.1989); United States v. Kiszewski, 877 F.2d 210, 214-15 (2d Cir.1989). Similarly, in the present case the district court ruled explicitly that this was an "isolated unwitting violation," and that "there was no abuse whatsoever by the Government; this case simply inadvertently was overlooked." Moreover, the district judge himself accepted much of the blame for the delay. Apparently relying on Taylor, the court took these facts as militating in favor of dismissal without prejudice.

We...