
USCA1 Opinion

	




          December 30, 1994                                [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1193                                    UNITED STATES,                                      Appellee,                                          v.                                    RICHARD GUYON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Stephen J. Weymouth for appellant.            ___________________            Kevin J.  Cloherty, Assistant  United States  Attorney, with  whom            __________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                 ____________________                      STAHL, Circuit Judge.   Defendant-appellant Richard                      STAHL, Circuit Judge.                             _____________            Guyon appeals his  conviction for failure to appear  at trial            in violation of 18 U.S.C.   3146(a)(1).  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      On June 27, 1991, on the fourth day of his trial on            charges of bank fraud in the United States District Court for            the District of Massachusetts, Guyon  failed to appear.   The            district  court issued  a bench  warrant for his  arrest, and            Guyon was apprehended approximately two weeks later in Idaho.            Guyon's  trial  continued   without  his  presence,   he  was            convicted  in  absentia on  the  bank-fraud  charges, and  on                       __  ________            December   10,   1991,   was   sentenced   to   thirty-months            imprisonment.  His sentence  included a two-level enhancement            for obstruction of justice  attributed primarily to a finding            that  Guyon  had  perjured  himself and  only  incidently  to            Guyon's flight during trial.                      After his arrest  in Idaho, Guyon  faced additional            bank-fraud charges  in the  United States District  Court for            the  Eastern District of Virginia.   On November  4, 1991, he            was  convicted on these charges  and on January  24, 1992, he            was  sentenced  to thirty-seven  months imprisonment,  to run            concurrently  with the sentence  imposed in the Massachusetts            bank-fraud case.  The Virginia sentence also included  a two-                                         -2-                                          2            level enhancement  for obstruction of justice  due to Guyon's            flight during the Massachusetts bank-fraud trial.                      On May 19, 1993, counsel was appointed to represent            Guyon   in  his   appeal  of  the   Massachusetts  bank-fraud            conviction.1  Two  days later,  on May 21,  1993, nearly  two            years  after his  flight  from  the Massachusetts  bank-fraud            trial, the  grand jury  returned an indictment  against Guyon            for failure to appear at that trial in violation of 18 U.S.C.              3146(a)(1).                      Following  the indictment, Guyon filed two separate            motions, each  entitled "Motion to Dismiss  Indictment."  The            first sought  dismissal on  the grounds of  unnecessary delay            pursuant to Fed. R. Crim. P. 48(b) ("Rule 48(b)") and the due            process  clause  of the  Fifth  Amendment,  while the  second            relied on the ground of vindictive and malicious prosecution.            After  a hearing,  the  district court  denied both  motions,            reasoning   that   "while   the   pre-indictment   delay  was            unquestionably long and the government's justification for it            weak," Guyon had nevertheless  suffered no prejudice  because            of it.  The court also held that  a presumption of vindictive            prosecution  did  not  exist  where  the  additional  charges            brought by the government were unrelated to the substance  of            the underlying (bank-fraud) charge.                                            ____________________            1.  This conviction  was affirmed in United  States v. Guyon,                                                 ______________    _____            27 F.3d 723 (1st Cir. 1994).                                         -3-                                          3                      After  a bench  trial, Guyon  was convicted  on the            failure to  appear charge  and was sentenced  to three  years            probation with that sentence  to commence after completion of            the  Virginia  bank-fraud  sentence,  which  Guyon  was  then            serving.  The sentence also provided that he was to spend the            first six  months of his  probationary period at  a Community            Treatment Center ("CTC").  This appeal followed.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Guyon now  argues that the district  court erred in            denying his motions  to dismiss  on the grounds  of (1)  pre-            indictment delay  pursuant to Rule 48(b)2  and (2) vindictive            prosecution.  Guyon also claims that the district court erred            in  its   application  of  the  Sentencing   Guidelines  when            determining   his   sentence   for    the   failure-to-appear            conviction.  We address each argument in turn.            A.  Rule 48(b)            ______________                      The   district  court   refused   to  dismiss   the            indictment based  on pre-indictment delay because it reasoned            that  Guyon  had not  been prejudiced  by  that delay.   When            reviewing  a  court's refusal  to  dismiss  pursuant to  Rule            48(b), we note that it is  within the discretion of the trial            court to invoke this rule, and its decision "will be reversed                                            ____________________            2.  On  appeal, Guyon does  not pursue the  argument that the            delay violated his Fifth Amendment due process rights.                                         -4-                                          4            only for abuse  of discretion."   United States v.  Mitchell,                                              _____________     ________            723 F.2d 1040, 1050 (1st Cir. 1983).                        Guyon argues that the  ruling of the district court            amounted to  an abuse of discretion in  that he was, in fact,            prejudiced by  the timing of the failure-to-appear conviction            and  sentencing.  He points out that his sentence for failure            to appear includes six months at a CTC to commence after  the            completion of  the Virginia  bank-fraud sentence.   He argues            that this additional penalty exceeds the statutory maximum to            which he is subject  under the Sentencing Guidelines.   Guyon            also  claims that had he been tried and sentenced without the            inordinate ordered delay on the failure-to-appear charge, his            sentence  might  have  been   imposed  consecutively  to  the            Massachusetts  bank-fraud sentence and  concurrently with the            Virginia  sentence.  That result would  have enabled Guyon to            avoid the additional six months to be served at the  CTC.  We            are not persuaded.                      Rule  48(b) allows  a court  to dismiss a  case for            failure to prosecute.3   A Rule 48(b) right attaches  after a                                            ____________________            3.  Fed. R. Crim. P. 48(b) provides:                      By Court.  If there is unnecessary  delay                      By Court.                      in presenting the charge  to a grand jury                      or  in  filing an  information  against a                      defendant who has been held  to answer to                      the  district  court,  or  if   there  is                      unnecessary delay in bringing a defendant                      to  trial,  the  court  may  dismiss  the                      indictment, information or complaint.                                         -5-                                          5            defendant's arrest.  United  States v. Marion, 404  U.S. 307,                                 ______________    ______            319  (1971); see also United  States v. McCoy,  977 F.2d 706,                         ___ ____ ______________    _____            712 n.6 (1st  Cir. 1992).  When a court  evaluates a claim of            unnecessary delay pursuant to Rule 48(b), it may consider the            length of and reason for the delay, the defendant's assertion            of his right,  and the  prejudice to the  defendant.   United                                                                   ______            States  v. Rowbotham, 430 F. Supp. 1254, 1257 (D. Mass. 1977)            ______     _________            (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).  See also             ______ ______    _____                              ___ ____            United States v. Becker,  585 F.2d 703, 708 (4th  Cir. 1978),            _____________    ______            cert. denied, 439 U.S. 1080 (1979).             _____ ______                      In this case,  the district court found a  long and            essentially  unjustified  delay.   However,  in  reaching its            decision to deny  the motion to  dismiss, the district  court            found that "no witnesses have become unavailable or forgetful            and the defendant has not spent and will not spend additional            time in prison" due to the delay.                      Guyon  argues prejudice because  the Virginia bank-            fraud  sentence  was  already the  maximum  to  which  he was            subject and the six months to be served at the CTC should not            have  been imposed as  an additional penalty.   However, this            argument does  not identify  any prejudice stemming  from the            government's delay in  returning an indictment against  Guyon                         _____            for  his failure  to  appear.   It  fails to  show  prejudice                                         -6-                                          6            appropriate to a  Rule 48(b)  dismissal, but  rather goes  to            whether the Sentencing Guidelines were properly applied.4                        Guyon  also argues  that he  was prejudiced  by the            delay because  the court  could have imposed  the failure-to-            appear  sentence consecutively to  the Massachusetts sentence            instead  of consecutively to the Virginia  sentence.  We find            this  argument unpersuasive  because regardless  of when  the            sentencing for failure to appear could have  occurred, it was            wholly  within  the discretion  of  the  sentencing court  to            require  that the  failure-to-appear sentence  commence after            the   Virginia  bank-fraud  sentence  instead  of  after  the            Massachusetts sentence.5                        Accordingly, we  find that  the district  court did            not abuse  its discretion  denying his  motion to  dismiss by            holding that Guyon was not prejudiced by the delay.6            B.  Vindictive Prosecution            __________________________                                            ____________________            4.  We discuss the  application of the  Sentencing Guidelines            at part C., infra.                    C.  _____            5.  18  U.S.C.     3146(b)  mandates that  the  sentence  for            failure  to  appear be  imposed  consecutively  to any  other            sentence  being served.   We  also note  that Guyon  had been            convicted in both districts before being sentenced in either.            6.  Given  the straightforward  resolution  of the  prejudice            claim, we need not  decide whether Rule 48(b) applies  to one            who  during the period  of delay is being  held on some other            charge or sentence and not because of an arrest on the charge            associated  with the delay.   Cf. Acha v.  United States, 910                                          ___ ____     _____________            F.2d 28, 30 (1st Cir. 1990).                                         -7-                                          7                      The district court also refused  to dismiss Guyon's            indictment   on  the  basis   of  vindictive   and  malicious            prosecution.  Because the facts are not in dispute, we review            only  the   district  court's   conclusion  of  law   that  a            presumption  of vindictiveness  does  not  exist.    "Claimed            errors of law are, of course, reviewed de novo."  Williams v.                                                   __ ____    ________            Poulos, 11 F.3d 271, 278 (1st Cir. 1993).            ______                      Guyon  has  not  provided  any actual  evidence  of            vindictiveness, but  instead  has attempted  to  "convince  a            court  that  the circumstances  show  there  is a  sufficient            `likelihood  of vindictiveness'  to warrant a  presumption of            vindictiveness."   United States v. Marrapese,  826 F.2d 145,                               _____________    _________            147 (1st  Cir.), cert. denied, 484 U.S.  944 (1987) (citation                             _____ ______            omitted).  He alleges that the government inexplicably waited            nearly  two years to seek an indictment for failure to appear            and then returned  the indictment only  two days after  Guyon            had secured  counsel to appeal  his Massachusetts  bank-fraud            conviction.   Guyon argues that this turn of events created a            presumption of vindictive prosecution  and that the  district            court  erred by not dismissing the indictment on that ground.            We do not agree.                        We  need  not  decide  whether   a  presumption  of            vindictiveness can exist where the additional  charge brought            against  a defendant  is  unrelated to  the substance  of the            underlying  offense because  the facts  of this  case  do not                                         -8-                                          8            reflect a "reasonable  likelihood of vindictiveness."   While            the  factual setting of this  case is unique,  this Court and            others have  addressed the  general issue of  presumptions of            prosecutorial  vindictiveness  and have  taken  a restrictive            view as to  the circumstances under which  the presumption is            warranted.   See, e.g., United  States v.  Goodwin, 457  U.S.                         ___  ____  ______________     _______            368, 382 n. 15  (1982) (presumption may not exist  where "the            only  evidence [a defendant] is able to marshal in support of            his  allegation  of  vindictiveness  is  that the  additional            charge was brought at a point in time after his exercise of a            protected right");  United States v. Esposito,  968 F.2d 300,                                _____________    ________            306  (3rd Cir. 1992) (general rule that court "will not apply            a presumption of vindictiveness to a subsequent criminal case            where  the basis for that  case is justified  by the evidence            and does  not put the  defendant twice in  jeopardy"); United                                                                   ______            States  v. Pimienta-Redondo, 874 F.2d  9, 13 (1st Cir.) ("the            ______     ________________            presumption does not apply indiscriminately to all  instances            of detrimental  action treading  close upon  the  heels of  a            defendant's  exercise of  some  legal right"  and should  not            "serve to block a  legitimate response to criminal conduct"),            cert. denied, 493 U.S. 890  (1989); United States v. Guthrie,            _____ ______                        _____________    _______            789  F.2d 356, 360 (5th Cir. 1986) (no presumption is created            if any  event should indicate that  the prosecutor's decision            is  motivated by some purpose other  than a vindictive desire            to deter or punish appeals).                                         -9-                                          9                      Here,  the  prosecution  did  nothing  out  of  the            ordinary  in bringing a  failure-to-appear indictment against            Guyon, an indictment clearly supported  by the evidence.  The            single fact  that the  indictment was returned  shortly after            Guyon  took  steps to  pursue  an  appeal of  his  bank-fraud            conviction   is  simply   not  sufficient   to  establish   a            presumption  of vindictiveness  on  the facts  of this  case.            Accordingly, we find that, as a matter of law, the facts here            do not support a presumption of vindictive prosecution.            C.  Sentencing            ______________                      Guyon argues that the  district court erred when it            sentenced  him to a six-month period of confinement in a CTC,            to  begin  after the  sentence  for  the Virginia  bank-fraud            conviction.   Guyon  contends that  because the  thirty-seven            month bank-fraud  sentence is the maximum  possible under the            Sentencing Guidelines, no additional penalty for  his failure            to  appear  should have  been imposed.    He reasons  that no            sentence would be a "reasonable incremental punishment" under            the  circumstances and,  alternatively, that  the failure-to-            appear  conviction  should  be grouped  with  the  bank-fraud            offense for sentencing  purposes.  See U.S.S.G.     5G1.3 and                                               ___            2J1.6; United States v. Agoro, 996 F.2d 1288 (1st Cir. 1993).                   _____________    _____                      We need not address  the merits of these arguments.            Instead, we resolve this issue by noting that Guyon's term at            the CTC  was scheduled  to expire on  (approximately) October                                         -10-                                          10            31,  1994.  Since Guyon  is presumably no  longer confined to            the CTC, we therefore treat  this issue as moot.   See United                                                               ___ ______            States  v. Lussier, 929 F.2d 25, 27 (1st Cir. 1991) (question            ______     _______            of the propriety of defendant's incarceration as a result  of            his  refusal to  provide  booking information  is moot  after            defendant has  provided the  information and  been released);            United  States v. Vachon, 869  F.2d 653, 656  (1st Cir. 1989)            ______________    ______            (defendant's  claim to  pretrial  release is  moot after  his            conviction).                      For  the  reasons  stated  above,  we  affirm   the            judgment of the district court.                      Affirmed.                      Affirmed.                      _________                                         -11-                                          11
