                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                       August 12, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
    UNITED STATES OF AMERICA,

                Plaintiff - Appellant,
                                                            No. 13-3250
    v.                                                      (D. Kansas)
                                               (D.C. No. 6:13-CR-10068-MLB-1 and
                                                     6:13-CR-10068-MLB-2)
    DARRIN WALKER;
    ANGELA JOHNSON, a/k/a Primitiva
    Johnson,

                Defendants - Appellees.



                              ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges.



         The district court sua sponte dismissed a federal indictment against Mr.

Darrin Walker and Ms. Angela Johnson, reasoning that the case belonged in state

court. The government appeals, arguing that the district court abused its

discretion. We agree.


*
       This order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the order and
judgment may be cited for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
      The decision to file federal charges lies within the exclusive province of

the executive branch. If the executive branch decides to charge a federal crime,

the judicial branch incurs a responsibility to determine the sufficiency of the

charge. But here, the district court exercised powers that it didn’t have, invading

the province of the executive branch by dismissing the indictment based on

disagreement with the charging decision. This action constituted an abuse of

discretion, requiring us to reverse the dismissal and reinstate the indictment.

I.    The District Court’s Sua Sponte Dismissal

      This appeal grew out of a search of trash cans near the residence of Mr.

Walker and Ms. Johnson. Inside the trash cans, police found bags containing

white residue. This finding led to issuance of a search warrant, the discovery of

drugs and a gun, and the filing of drug and gun charges.

      In defending against these charges, Mr. Walker and Ms. Johnson moved to

suppress the drugs and gun. During the hearing on this motion, the district court

stated without warning:

      I’m going to dismiss this case without prejudice. This is a case that
      should be, if it’s going to be handled at all, should be handled in
      state court, not in federal court. This is not a federal case. It’s a
      state case. It’s a state officer, or offices. It’s a state warrant. It’s a
      state judge. And this business of being -- of elevating it to a federal
      case in this particular case is unwarranted. Now, I don’t know. You
      can take it back to state court and see what the state judges will do
      with their own problems. It’s without prejudice, so if something gets
      resolved and you want to refile it here, then I’ll reconsider it; but at


                                          2
       this point in time, I just don’t think this case needs to be here --
       shouldn’t be here. So that’s the ruling of the court.
Id. at 72.

       The prosecutor did not object, and the district court later issued a one-

sentence order dismissing the case without prejudice “for the reasons stated in

open court.” Id. at 63.

II.    Standard of Review

       When the government timely objects to dismissal of an indictment, we

generally review under the abuse-of-discretion standard. United States v.

Bergman, 746 F.3d 1128, 1132 (10th Cir. 2014). But when the government fails

to timely object, we ordinarily apply the plain-error standard. See United States

v. Hasan, 526 F.3d 653, 660-61 (10th Cir. 2008).

       The government acknowledges that it failed to contemporaneously object to

the district court’s dismissal. But when a district court sua sponte resolves an

issue of law on the merits, the appellant may challenge that ruling regardless of

the failure to contemporaneously object. See United States v. Hernandez-

Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003). Our review under these

circumstances follows the standard applicable when the appellant timely objects:

abuse of discretion.

III.   Invading the Province of the Executive Branch




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      The government argues that the district court lacked authority to sua sponte

dismiss a legally sufficient indictment. Mr. Walker and Ms. Johnson defend the

dismissal, but do not question the legal sufficiency of the indictment. Instead,

Mr. Walker and Ms. Johnson rely on the district court’s broad supervisory power.

This power does not permit dismissal of an indictment based on disagreement

with the prosecutor’s decision on which charges to bring. Accordingly, the

district court abused its discretion by dismissing the indictment.

      A.     Prosecutorial Discretion

      Federal prosecutors “are designated by statute as the President’s delegates

to help him discharge his constitutional responsibility to ‘take Care that the Laws

be faithfully executed.’” United States v. Armstrong, 517 U.S. 456, 464 (1996)

(quoting U.S. Const. Art. II, § 3). In this capacity, prosecutors enjoy broad

discretion in deciding on the charges. “Such discretion is an integral feature of

the criminal justice system, and is appropriate, so long as it is not based upon

improper factors.” United States v. LaBonte, 520 U.S. 751, 762 (1997).

      Our decision in United States v. Curtis, 344 F.3d 1057, 1064 (10th Cir.

2003), provides guidance. There, the defendant claimed that prosecutors should

have charged a violation of state law rather than federal law. We rejected this

claim as “plainly without merit,” noting that “[i]t is settled law that as long as a

prosecutor’s charging decision is not based on an impermissible factor such as


                                          4
race . . . a prosecutor may exercise broad discretion with respect to his charging

decisions.” Id. at 1064; see also United States v. Batchelder, 442 U.S. 114, 124

(1979) (“Whether to prosecute and what charge to file or bring before a grand

jury are decisions that generally rest in the prosecutor’s discretion.”).

      Under Curtis, prosecutors have discretion in deciding whether to file state

or federal charges. This decision was not for the district court to make.

      B.      The District Court’s Supervisory Power

      Mr. Walker and Ms. Johnson rely on the district court’s supervisory power.

This reliance is misguided.

      Generally, a district court cannot use its supervisory power to dismiss a

legally valid indictment. See United States v. Hudson, 545 F.2d 724, 726 (10th

Cir. 1976) (holding that a district court lacks the “inherent power” to dismiss an

indictment based on the defendant’s poor health). But as Mr. Walker and Ms.

Johnson point out, a district court may use its supervisory authority to dismiss an

indictment when prosecutorial misconduct influenced the grand jury’s decision

and caused prejudice to the defendant. See Bank of Nova Scotia v. United States,

487 U.S. 250, 254 (1988); United States v. Hillman, 642 F.3d 929, 933-34 (10th

Cir. 2011).




                                          5
      These circumstances are not present: The district court dismissed the

indictment solely because it believed the case belonged in state court. This

choice was for the prosecutor, not the court. 1

      In support, Mr. Walker relies on a Ninth Circuit case, United States v.

Gonsalves (Gonsalves I), 691 F.2d 1310 (9th Cir. 1982). See Walker Br. at 12-

13. But that case is neither controlling nor applicable. In Gonsalves I, the Ninth

Circuit Court of Appeals upheld the district court’s dismissal of a “cumbersome

indictment.” 691 F.2d at 1322. But this decision was vacated by the Supreme

Court. See United States v. Gonsalves, 464 U.S. 806 (1983) (vacating decision

and remanding for consideration in light of United States v. Hasting, 461 U.S.

499, 509 (1983)). On remand, the Ninth Circuit reversed the dismissal,

recognizing that the “scope of a federal court’s supervisory powers [is limited] to

very specific areas, not including the unmanageability or complexity of an

indictment.” United States v. Gonsalves (Gonsalves II), 781 F.2d 1319, 1320

(1986).




1
       At the suppression hearing, the district court commented on the state
court’s procedure preceding issuance of the search warrant. See Aplt.’s App. at
72 (stating: “You can take it back to state court and see what the state judges
will do with their own problems”). But the district court did not rule on the
validity of the warrant or the legality of the resulting search; instead, the court
based its dismissal on the prosecutor’s decision to bring federal charges rather
than state charges.
                                           6
      The Ninth Circuit case also bears critical differences with our case. In

Gonsalves I, the Ninth Circuit affirmed the district court’s dismissal of the

indictment because it found the case was an “unmanageable monstrosity” and

would “gravely impair the basic function of the District Court.” Gonsalves I, 691

F.2d at 1320. Here, the district court dismissed the indictment based on

disagreement over the decision to charge federal crimes rather than state crimes.

      Under our precedents, a district court cannot invoke its supervisory power

to dismiss an indictment based on disagreement with the prosecutor’s decision to

file federal charges. In ordering dismissal on this ground, the district court

abused its discretion.

      C.     Reassignment on Remand

      The government requests that we reassign the case to another district judge

on remand. Aplt.’s Br. at 6, 16. We deny this request because the government

fails to explain why reassignment would be appropriate.

      Reassignment of a case involves an “extraordinary” step. Procter &

Gamble Co. v. Haugen, 427 F.3d 727, 744 (10th Cir. 2005). We can take this

step only in limited circumstances: (1) when there is evidence of actual bias or

prejudice against a party, or (2) on the basis of a three-part approach:

      “(1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her mind
      previously-expressed views or findings determined to be erroneous
      or based on evidence that must be rejected, (2) whether reassignment
                                          7
      is advisable to preserve the appearance of justice, and (3) whether
      reassignment would entail waste and duplication out of proportion to
      any gain in preserving the appearance of fairness.”

Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996) (quoting United States

v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986)).

      The government does not allege personal bias or any facts suggesting a

need for reassignment based on the three-part test. In light of this failure and the

“extraordinary nature of such an order,” we decline to reassign the case to a

different judge on remand. See Procter & Gamble Co., 427 F.3d at 744.

IV.   Disposition

      We reverse the dismissal, order the district court to reinstate the

indictment, and remand for further proceedings.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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