United States v. Khan
| Decision Date | 01 April 2014 |
| Docket Number | No. 2:10-CR-0175 KJM,2:10-CR-0175 KJM |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. WQAS KHAN, Defendant. |
The indictment in this case, filed nearly four years ago, charges defendant with two counts of possession with intent to distribute, 50 grams of methamphetamine and 500 grams of cocaine respectively, as well as with possession of a firearm in furtherance of a drug trafficking crime. In light of the charges, defendant has been detained without bail since April 28, 2010. The government has tried the case twice in the last nine months, advancing each time essentially the same evidence, with minor differences. The court has twice declared a mistrial because neither jury was able to reach a verdict. ECF Nos. 240, 283. In the first trial, it appears a single juror held out. In the second, it appears there were at least two blocs of jurors that formed, preventing a unanimous verdict. The government requests a third trial. At that trial, it says it will present in person the co-defendant whose identity and relationship to defendant has been disclosed in the prior trials without her appearance.
The federal charges are not the only charges pending against defendant. Just days before the first trial here in July 2013, he was charged with murder in state court. Indeed, the federal indictment was the result of evidence found by state authorities during the execution of a search warrant in December 2009, seeking evidence of the murder. See ECF No. 202 at 1-5. In its 2010 order detaining defendant pending trial, the court noted his status at the time as a "person of interest" in a state homicide investigation. ECF No. 6 at 2.
Following the second mistrial in January of this year, while tentatively setting a date for a third trial, this court asked the parties for their positions regarding whether the court could dismiss this indictment, without prejudice. The parties have briefed the question.
Defendant argues a third trial would be "a trial of attrition in violation of the Fifth and Sixth Amendments." ECF No. 289 at 2. He says this court may rely on its supervisory powers to dismiss in order to avoid the staleness and prejudice inherent in a third trial. Id. at 3. He argues that jurors' comments following the second trial show the government's case was even less persuasive than it had been during the first trial. This suggests, he argues, the government's indecisive prosecution of the case will likely result in a third mistrial. Defendant also says he will stipulate to a dismissal without prejudice. Id. at 7.
The government argues this court's supervisory powers are necessarily constrained by the separation of powers. As a result, it says, the court cannot dismiss the indictment in the absence of any violation of the defendant's constitutional and statutory rights. ECF No. 290 at 2. Although at the most recent status conference the government intimated dismissal without prejudice might preclude its refiling on statute of limitations grounds, it does not make this argument in its briefing and the court considers it waived.
II. RELEVANT AUTHORITY
Under Rule 31 of the Federal Rules of Criminal Procedure, Nothing suggests that multiple mistrials take a case out of the Rule's operation.
At the same time, a district court has inherent supervisory authority over its processes, which it must exercise "with a view toward balancing the interests involved." United States v. Hasting, 461 U.S. 499, 506-07 (1983) (). The court's inherent authority extends to control of its docket and its "'substantial discretion over what happens inside the courtroom." United States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008) (en banc) (quoting United States v. Simpson, 927 F.2d 1088, 1091 (9th Cir. 1991)) (emphasis in original).
The bulk of authority on the question of dismissal of a criminal case addresses dismissal with prejudice, which is not what the court here considers. The court has reviewed this authority nonetheless, to the extent it may provide guidance. A court may exercise its supervisory powers to dismiss an indictment with prejudice "'(1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct.'" United States v. Struckman, 611 F.3d 560, 574 (9th Cir. 2010) (quoting United States v. Matta-Ballesteros, 71 F. 3d 754, 763 (9th Cir. 1995)1). A court's powers are not limited to these three areas. Under its inherent authority a court may act "to effectuate, as far as possible, the speedy and orderly administration of justice" and "to ensure fundamental fairness." United States v. Richter, 488 F.2d 170, 173-74 (9th Cir. 1973); see W.R. Grace, 526 F.3d at 511 n.9 (). Some district courts have exercised their supervisory powers to dismiss on "fundamental fairness" grounds when the government has not been able to secure a conviction following multiple trials. See United States v. Rossoff, 806 F. Supp. 200, 202 (C.D. Ill. 1992) (); United States v. Ingram, 412 F. Supp. 384, 385-86 (D.D.C. 1976) (). Nevertheless, in reviewing a dismissal with prejudice, the Ninth Circuit has said "[a] court may dismiss an indictment under its supervisory powers only when the defendant suffers substantial prejudice and where no lesser remedial action is available." United States v. Chapman, 524 F.3d 1073, 1087 (9th Cir. 2008) (citations and internal quotation marks omitted).2
The government relies on United States v. Miller, 4 F.3d 792 (9th Cir. 1993), in arguing this court's inherent authority does not allow it to dismiss the indictment simply because of the two mistrials. ECF No. 290 at 2. In Miller, after the jury acquitted on some counts and hung on others, the district court dismissed all counts except those on which a majority of the jurors had voted to convict. The record of the case implies the dismissal was with prejudice. The court did not specify its reasons for dismissal, saying only that "a retrial would be unfair as to those counts in which the government did not convince at least seven jurors to vote for a conviction." 4 F.3d at 793. The Ninth Circuit reversed, observing the district court had not made any findings that a retrial would involve the presentation of perjurious testimony or irrelevant evidence, as the defendants had argued. Id. at 795-96. The Court of Appeals concluded that the dismissal, based only on the fact that the jury was hung on some counts in defendants' favor, was "not an adequate basis for dismissal under the court's supervisory power." Id. at 795. The court did not hold that a dismissal following a retrial, including without prejudice, would never be appropriate.
III. ANALYSIS
Here, the court finds a dismissal without prejudice would be justified, to allow a cooling-off period and promote the fundamental fairness that is the hallmark of the federaljudicial system. A third trial in short succession raises the specter that witness testimony will be tailored further in an effort to address perceived lacunae from the first two trials. It also is likely to compound confusion as witness and exhibit lists are modified yet again. Some confusion was evident already...
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