USA v. Jones

• Decision Date: 24 May 2000
• Docket Number: No. 99-4071,99-4071
• Citation: 213 F.3d 1253
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PAUL BRADFORD JONES, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1253

213 F.3d 1253 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PAUL BRADFORD JONES, Defendant - Appellant.

No. 99-4071

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

May 24, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 97-CR-06-B)

[Copyrighted Material Omitted] Brooke C. Wells, Assistant United States Attorney (and Paul M. Warner, United States Attorney, with her on the briefs), Salt Lake City, Utah, for Plaintiff - Appellee.

Reid W. Lambert, Woodbury & Kesler, P.C., Salt Lake City, Utah, for Defendant - Appellant.

Before KELLY, McWILLIAMS, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Paul Bradford Jones appeals from his conviction on two counts of interference with commerce by threats or violence (Hobbs Act), 18 U.S.C. 1951, one count of bank robbery, 18 U.S.C. 2113(a), two counts of armed bank robbery, 18 U.S.C. 2113(a) & (d), three counts of carrying and using a firearm during a crime of violence, 18 U.S.C. 924(c)(1), one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, 18 U.S.C. 922(g). Mr. Jones received a mandatory life sentence, 18 U.S.C. 3559(c)(1), plus 45 years to run consecutively.

The convictions stem from a several-month crime spree across Utah. Mr. Jones was first charged in a three-count federal indictment on February 2, 1995. Superseding indictments were filed over the next two years, during which time Mr. Jones pursued various motions. Trial was set for March 10, 1997. On March 6, 1997, Mr. Jones moved to dismiss the charges on the ground that his right to a speedy trial had been violated. The district court dismissed the charges, but dismissal was without prejudice. Mr. Jones was reindicted on the same charges the next day, and convicted after a jury trial.

He contends that the district court erred in: (1) dismissing the indictment without prejudice; (2) admitting evidence seized during a warrantless search of the residence where he was staying; (3) refusing to sever the "felon in possession" counts from the other counts; (4) limiting the cross-examination of a prosecution witness; (5) sentencing him to life imprisonment plus 45 years because such a sentence violates the Eighth Amendment; and (6) finding that an earlier robbery qualifies as a "serious violent felony" under the three-strikes provision of 18 U.S.C. 3559(c). Our jurisdiction arises under 28 U.S.C. 1291 and we affirm.

A. Speedy Trial Act

Based on a finding that Mr. Jones' rights under the Speedy Trial Act, 18 U.S.C. 3161, had been violated, the trial court dismissed the indictment on April 1, 1997. The dismissal was without prejudice, and Mr. Jones immediately was reindicted. Mr. Jones argues that, because of the egregious nature of the violation and the lack of prejudice to the public interest, the dismissal should have been with prejudice.

Mr. Jones previously appealed his convictions. In United States v. Jones, No. 97-4153, 1998 WL 777068 (10th Cir. Oct. 27, 1998), we reached only whether the dismissal under the Speedy Trial Act should have been with or without prejudice. Finding that the district court had erroneously undercounted the number of non-excludable days that had passed, the case was remanded to the district court to recalculate the total number of non-excludable days and to redetermine, based on that calculation, whether the dismissal should have been with prejudice. This court did not reach the other issues on appeal.

On remand, the district court recalculated and concluded that dismissal of the indictment without prejudice was appropriate. Mr. Jones contends that the district court's recalculation still undercounts the proper number of non-excludable days, and that, given the factors to be considered by the district court, dismissal with prejudice was required.

The district court's decision to dismiss an indictment without prejudice for violation of the Speedy Trial Act is reviewed for an abuse of discretion. See United States v. Taylor, 487 U.S. 326, 335-36 (1988); United States v. Saltzman, 984 F.2d 1087, 1092 (10th Cir. 1993). We do not need to reach the question of whether the district court correctly calculated the number of non-excludable days because we conclude that, even if Mr. Jones' contention that 414 non-excludable days passed is correct, the district court did not abuse its discretion in dismissing the indictments without prejudice.¹

The relevant factors in determining whether a dismissal should be with or without prejudice are contained primarily in the statute, 18 U.S.C. 3162, and are further developed by the Supreme Court's decision in United States v. Taylor, 487 U.S. 326 (1988). Under 18 U.S.C. 3162(a)(2), the district court must consider, among other 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 [the Act] and on the administration of justice." In Taylor, the Supreme Court determined that prejudice to the defendant is another factor that should be taken into consideration by the district court. 487 U.S. at 333-34.

Of course, an appellate court cannot exercise discretion for the district court. When the district court has exercised that discretion, our function is to insure that the statute is effectuated, recognizing that "when 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. Applying these standards, we uphold the decision to dismiss the indictment without prejudice.

1. Seriousness of the Crime

Mr. Jones concedes that the offenses he was convicted of are "extremely serious." Aplt. Br. at 25. He argues, however, that the seriousness of the offenses must be weighed against the severity of the delay, citing United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984) and United States v. Clymer, 25 F.3d 824, 831 (9th Cir. 1994). We agree with Mr. Jones that, because of the significant delay in this case, the seriousness of the charges does not automatically justify dismissal without prejudice. However, we cannot agree that "the seriousness of the offenses charged in this case are substantially outweighed by the severity of the delay." Aplt. Br. at 25. As the district court detailed on remand, some of the crimes of which Mr. Jones was convicted involved intimidation, violence, and use of a firearm. The indictment charged multiple robberies. Additionally, Mr. Jones was violating his parole at the time. In short, we will not say that a particular delay automatically outweighs the seriousness of the offense, nor will we say that a particular offense is always so serious as to automatically outweigh any delay. This balancing is to be done by the district court in conjunction with the other enumerated factors, as was done here.

2. Circumstances Leading to Dismissal

In evaluating the circumstances precipitating the dismissal, the court is to focus "'on the culpability of the delay-producing conduct.'" United States v. Saltzman, 984 F.2d 1087, 1093 (10th Cir. 1993) (quoting United States v. Hastings, 847 F.2d 920, 925 (1st Cir. 1988)). "Where the delay is the result of intentional dilatory conduct, or a pattern of neglect on the part of the Government, dismissal with prejudice is the appropriate remedy." Id. at 1093-94. Here, no showing was made that the prosecution engaged in a pattern of neglect or bad faith. Much of the delay was attributable to the court's method of disposition of a suppression motion, and while the court and the government are each partly responsible for effectuating a defendant's right to a speedy trial, a defendant that lets the time run without asserting his rights under the Act has less of a claim to a dismissal with prejudice than a defendant who makes a timely assertion, but is unheeded. See id. at 1094.

3. Impact of Reprosecution on the Speedy Trial Act and the Ends of Justice

Mr. Jones contends that allowing reprosecution in this case would "send a message that the Act need not be seen as anything more than a potential inconvenience" and that dismissal with prejudice is necessary to "demonstrate to the government the seriousness of the [Act]." Aplt. Br. at 28-29. While district courts obviously do not want to give the impression that the Speedy Trial Act is a mere formality that can be violated with impunity, dismissal with prejudice is not the only method for a court to show that violations must be taken seriously. A dismissal without prejudice requires the government to re-indict, may work to the disadvantage of the government on limitations grounds, and may make reprosecution less likely. See Taylor, 487 U.S. at 342. As the Supreme Court observed in Taylor "If the greater deterrent effect of barring reprosecution could alone support a decision to dismiss with prejudice, the consideration of the other factors identified in 3162(a)(2) would be superfluous, and all violations would warrant barring reprosecution." Id. The district court concluded that the administration of the Speedy Trial Act and the administration of justice would not be harmed by dismissal without prejudice because of a lack of actual prejudice occasioned by the delay, the defendant's likely custody on unrelated matters, and the timing and manner in which the Speedy Trial Act claim was brought to the court's attention, specifically on the eve of trial. We find no error in the consideration of this factor.

4. Prejudice to the Defendant

Although not a statutory factor to consider, prejudice to the defendant may be a significant factor in determining whether to dismiss with prejudice. Id. at 340. Mr. Jones contends that he has suffered the following prejudice: (1) inability to locate a potential witness who moved during the time between...