United States v. Al Phillips, 775 F.2d 1454, 11th Cir. (1985)
United States v. Al Phillips, 775 F.2d 1454, 11th Cir. (1985)
2d 1454
Stanley Marcus, U.S. Atty., Jon May, David O. Leiwant, Linda Collins
Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.
Jeffrey A. Miller, Bruce Rogow, Fort Lauderdale, Fla., for defendantappellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before VANCE and HATCHETT, Circuit Judges, and ATKINS* , District
Judge.
VANCE, Circuit Judge.
This is the second appeal by the government in this case following the district
court's dismissal with prejudice of a multi-count indictment against appellee, Al
Phillips. On the prior appeal we concluded that the district court had
improperly applied a presumption that dismissals under the Speedy Trial Act
should be with prejudice. We directed that on remand it consider the factors
enumerated in 18 U.S.C. Sec. 3162(a)(2) without the influence of the improper
presumption. On remand the district court again considered the matter and
again ruled that the dismissal should be with prejudice. We now conclude that
such ruling constituted an abuse of discretion. We therefore reverse the
judgment of dismissal with prejudice and remand with directions that a
judgment of dismissal without prejudice be entered.
II. Discussion
3
In its order on remand the district court recognized the correct analytical
framework mandated in United States v. Russo, 741 F.2d 1264 (11th Cir.1984).
It also stated that it must give consideration to the factors enumerated in Barker
v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Its findings on
remand chronicle the events leading to dismissal, but our understanding of the
court's application of the Russo analysis is not aided by any relevant findings or
explanations except for statements of conclusion. Its reference to Barker is
more problematic since less than eighty 1 days of nonexcludable time had
elapsed when defendant's Speedy Trial motion was filed. No constitutional
ground was stated in defendant's motion, and the delay was insufficient to
implicate constitutional concerns. Under this court's precedents the length of
the delay in this case was too short even to trigger Barker's balancing test or to
require an examination of the other three factors. United States v. OteroHernandez, 743 F.2d 857, 858 n. 3 (11th Cir.1984); United States v. Varella,
692 F.2d 1352, 1359 (11th Cir.1982), cert. denied, 463 U.S. 1210 (1983), cert.
denied, 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983).
5 following delay in starting a trial beyond the time prescribed by statute, the
If,
prosecution is free to commence prosecution again for the same offense, the right to
speedy trial is largely meaningless.
6
Speedy Trial Act was under consideration by those who advocated that all
dismissals be with prejudice. That sanction was rejected by the Congress,
however, in favor of the balancing scheme now found in the statute. See United
States v. Caparella, 716 F.2d 976, 978 (2d Cir.1983).
7
(1) The charges in this case are serious. They have been found to be serious and
that finding is clearly supported by the record.
(2) The delay was slight--variously calculated at from ten days to three weeks.
There was no demonstrated fault by the government. 2 Indeed, the government
twice filed reports alerting the trial court of the Speedy Trial deadline. The case
was simply not reached on the trial docket, a matter within the primary
responsibility of the court.
10
11
The government relies on the seventh circuit's holdings that in the case of a
serious crime, dismissal with prejudice should only be imposed for a serious
delay, United States v. Carreon, 626 F.2d 528, 533 (7th Cir.1980), especially in
the absence of a showing of prejudice. United States v. Hawthorne, 705 F.2d
258, 260 (7th Cir.1983). In effect we adopted the same rule in Russo: "Where
the crime charged is serious, the court should dismiss only for a
correspondingly severe delay." 741 F.2d at 1267. The reasons for application of
this principle are strengthened in this case by the government's apparent
freedom from fault and the lack of any finding of prejudice to Phillips resulting
from the short delay. We conclude that under all of the circumstances disclosed
by the record before us dismissal with prejudice cannot be affirmed.
12
Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of
There are findings that the government was delinquent in connection with
certain discovery requirements but no finding that such delinquency was
connected with the Speedy Trial violation. There should be no relationship. The
district court has available adequate sanctions to insure compliance with all
such requirements if they are brought to its attention in a timely manner by
opposing counsel. The possibility of a relationship is foreclosed by defendant's
verification in a memorandum filed in the district court on July 7, 1983 that he
never sought a continuance at any time or for any reason