
USCA1 Opinion

	




                              _________________________          No. 97-1118                              UNITED STATES OF AMERICA,                                     Appellant,                                         v.                                 RONALD A.X. STOKES,                                Defendant, Appellee.                              _________________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Edward F. Harrington, U.S. District Judge]                              _________________________                                       Before                                Selya, Circuit Judge,                            Hill,* Senior Circuit Judge,                             and Boudin, Circuit Judge.                              _________________________               Donald K. Stern, United States Attorney, with whom Andrea N.          Ward, Assistant United States Attorney, was on brief, for          appellant.               James                      S.                         Dilday, with whom  Derege                                                   B.                                                      Demissie and Grayer                                                                           &          Dilday were on brief, for appellee.                              _________________________                                   August 22, 1997                              _________________________          _______________          *Of the Eleventh Circuit, sitting by designation.                    SELYA,                           Circuit Judge                                       . The United States appeals from the          dismissal, on due process grounds, of an indictment against          defendant-appellee Ronald A.X. Stokes. Because the district court          acted improvidently and in excess of its authority, we reverse.          I. BACKGROUND                    The factual foundation of the case is laid elsewhere,                                                                         see          United                   States v.   Stokes, 947 F. Supp. 546 (D. Mass. 1996);          Commonwealth v. Stokes, 653 N.E.2d 180 (Mass. App. Ct.),   review          denied, 655 N.E.2d 1277 (Mass. 1995), and a sketch suffices for          present purposes.                    Boston police officers arrested Stokes on December 6,          1990, and charged him with first-degree murder, unlawful carriage          of a firearm (an AK-47 semi-automatic rifle), and two counts of          assault and battery with a dangerous weapon. On August 11, 1992,          a state court jury acquitted him on the murder charge, but          convicted him on the other three counts. Mindful of both the          circumstances of the crimes and the defendant's recidivism, the          judge sentenced him at or near the statutory maximum for each count          and made the sentences consecutive. Stokes' anticipated release          date from state confinement is in 2006.                    The federal government knew of Stokes' case no later than          June 9, 1993. Still, the federal behemoth did not stir until          December 5, 1995, when the United States charged Stokes with being          a felon in possession of a firearm.    See 18 U.S.C. S 922(g)(1)          (1994). Stokes moved to dismiss the federal indictment on          temporally oriented grounds. He averred that the prosecution was                                          2          time-barred and that the protracted preindictment delay violated          (a) his Fifth Amendment right to due process, (b) his Sixth          Amendment right to a speedy trial, and (c) the strictures of Fed.          R. Crim. P. 48(b). Following a hearing, the district court took          the unorthodox step of submitting a series of interrogatories to          the government sua sponte.                    In the course of those proceedings, the government          explained, among other things, that this prosecution would further          the federal interest in protecting the public from a violent          criminal. The government noted that Stokes, who had accumulated an          unrelieved record of bellicose criminality, on this occasion had          wielded a particularly lethal weapon, and that, if he were to be          convicted on the federal charge, he could be punished as an armed          career criminal. The court eventually rejected each of Stokes'          claims. Because the five-year statute of limitations commenced          running on December 7, 1990, the indictment, handed up on December          5, 1995, was timely. See                                    United States                                                 v.                                                     Stokes, 947 F. Supp. at          550. Because the defendant made no showing that preindictment          delay caused him actual prejudice or emanated from a prosecution          effort to gain an unfair tactical advantage, Stokes' Fifth          Amendment claim failed.   See id. at 551. Because an accused's          constitutional right to a speedy trial does not attach until the                                             The United States Attorney obtained an authorized waiver from          the Justice Department's Petite policy, an aspirational protocol          which seeks to prevent overlapping federal-state prosecutions          absent a compelling federal interest. See                                                     generally                                                               United States          v.             Gary, 74 F.3d 304, 313 (1st Cir.),                                               cert.                                                     denied, 116 S. Ct. 2567          (1996).                                          3          filing of a charge, the Sixth Amendment offered Stokes no shelter.          See id. at 552. And, finally, the court ruled that Criminal Rule          48(b) does not apply to preindictment delay.  See id.                    Had the district court stopped at this juncture, these          proceedings would be unnecessary. But the judge brooded over the          sentencing possibilities. Noting that, regardless of the earlier          acquittal, Stokes' sentence could be enhanced to life imprisonment          without parole if the government obtained a conviction on the          federal weapons charge and then proved at sentencing by a          preponderance of the evidence that he had committed the murder,                                                                         see          generally USSG S2K2.1; USSG S1B1.3(a), the judge foresaw "vexing          issues" of due process, double jeopardy, and selective prosecution.          United States                       v.                           Stokes, 947 F. Supp. at 553. While acknowledging          that the prosecution transgressed no established constitutional          doctrine, he identified four factors which, in his estimation, gave          rise to "constitutional implications": (1) the substantial          preindictment delay; (2) a                                     de                                        facto successive prosecution for the          same firearms offense, albeit by a different sovereign, exacerbated          by the prospect of a disparate sentence of mandatory life          imprisonment; (3) a  de facto reprosecution, in the guise of a          sentencing enhancement, for acquitted conduct (the murder) under a          less rigorous standard of proof; and (4) a form of selective          prosecution.  Id. at 556-57. He then proceeded to dismiss the          indictment, reasoning that "[a]lthough no one factor, by itself,          may offend constitutional canons, the effect of all of the factors          in the aggregate . . . violates the Due Process Clause."  Id. at                                          4          557. This appeal ensued.          II. DISCUSSION                    Because the district court's dismissal of the indictment          on constitutional grounds raises a pure question of law, we          exercise plenary review. See                                        United States                                                     v.                                                         Nippon Paper Indus.          Co., 109 F.3d 1, 3 (1st Cir. 1997), petition for cert. filed, 65          U.S.L.W. 3839 (U.S. June 13, 1997) (No. 96-1987);                                                            United States                                                                         v.          Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir. 1992). We begin with          the court's aggregation theory and then turn to the court's          preoccupation with possible sentencing outcomes. We conclude by          considering various alternative grounds proffered by the appellee          in an attempt to salvage the judgment.                                A.  Aggregate Effect.                    The cornerstone of the district court's order is its          conclusion that a medley of constitutional concerns, each          insufficient to bar prosecution, added up to a due process          violation and required dismissal of the indictment. The district          court cited United States v. Lombard, 72 F.3d 170 (1st Cir. 1995)          (Lombard                    I), as the sole authority for this aggregation theory.          Lombard I is well wide of the mark.                    A state court jury acquitted Lombard on murder charges.          A federal court jury subsequently convicted him on federal firearms          charges arising out the same nucleus of operative facts. The trial          judge imposed a mandatory life sentence based on preponderant          evidence that Lombard used the weapons to commit the murders (of          which he previously had been acquitted).       See  id. at 172.                                          5          Expressing but not resolving constitutional concerns about, inter          alia, the magnitude of the sentence enhancement, the prior          acquittal, the qualitative difference between the sentence-          enhancing conduct and the offense of conviction, and the severity          of the sentence imposed, the court held that this combination of          special facts permitted the district court to consider a downward          departure at sentencing.  See id. at 180, 184-85; see also United          States v. Lombard, 102 F.3d 1, 2 (1st Cir. 1996) (   Lombard                                                                         II)          (explicating previous panel decision),  cert. denied, 117 S. Ct.          2437 (1997).                    Lombard                             I offers no support for the dismissal of the          indictment in this case.      Lombard                                                  I is a sentencing case,          elaborating on departure principles, and its analysis is unique to          the milieu of the federal sentencing guidelines.                                                           See                                                               Lombard I                                                                       , 72          F.3d at 183-87; see generally Koon v.  United                                                         States, 116 S. Ct.          2035, 2044-45 (1996). Judge Harrington transposed the statements          contained in                       Lombard I                                from the sentencing context to the pretrial          context. Tugging those statements so far from their moorings          empties them of meaning.                    Moreover, Judge Harrington's reading of   Lombard                                                                       I is          undone by                    Lombard II                              (which, in all fairness, was decided some two          weeks after Judge Harrington ruled).    Lombard                                                           I resulted in a          remand for further consideration of the appropriate sentence. 72          F.3d at 187.  Lombard                                 II upheld the district court's denial of a          downward departure and its reimposition of a sentence of life          imprisonment. 102 F.3d at 2-3, 5. This result refutes Judge                                          6          Harrington's vision of  Lombard                                             I as the progenitor of a new          constitutional dogma. The short of it is that the district court          did not cite, and we have not unearthed, any authority for the          proposition that individual factors, none of which crosses          constitutional boundaries, may violate the Constitution in the          aggregate. While perhaps some strange concatenation of          circumstances lurks at the outer periphery of constitutional          doctrine, we are confident that, on the facts of this case, the          whole is no more than the sum of the parts.                    In a gallant effort to hold his gains, Stokes' able          counsel points out that we have recognized in other contexts the          principle of cumulative effect.    See,  e.g., United                                                                   States v.          Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993);                                                            United States                                                                         v.          Dwyer, 843 F.2d 60, 65 (1st Cir. 1988). That is true as far as it          goes   but it does not go very far. While trial errors which in          isolation appear harmless may have a cumulative effect so          prejudicial as to require reversal, the operation of that principle          depends on the existence of two or more errors. By definition,          cumulative-error analysis is inappropriate when a party complains          of the cumulative effect of non-errors.  See Hoxsie v. Kerby, 108          F.3d 1239, 1245 (10th Cir. 1997),  petition for cert. filed, ___          U.S.L.W. ___ (U.S. June 9, 1997) (No. 96-9364). Here, as Judge          Harrington himself concluded, each individual claim of          constitutional error misfires. Thus, we cannot endorse the curious          alchemy by which the lower court transformed an array of          constitutionally acceptable factors into a constitutional                                          7          abomination.                           B.  Sentencing Considerations.                    The court below dwelt at some length on the potentially          severe sentence that Stokes might receive if he were convicted on          the federal charge. The court's reliance on this factor as a basis          for granting relief was at best premature.                    In the normal course of events, a facially valid          indictment returned by a duly constituted grand jury calls for a          trial on the merits. See                                    Costello v.                                                United States                                                            , 350 U.S. 359,          363 (1956); United States v. Rodriguez, 738 F.2d 13, 16 (1st Cir.          1984). Because the public maintains an abiding interest in the          administration of criminal justice, dismissing an indictment is an          extraordinary step.  See United States v. Morrison, 449 U.S. 361,          363-64 (1981). Even when evidence of a constitutional infraction          looms, remedies ordinarily "should be tailored to the injury          suffered from the constitutional violation and should not          unnecessarily infringe on competing interests."                                                          Id. at 364. Thus,          an indictment should not be dismissed with prejudice when other          means exist to correct a constitutional breach.  See id. at 365;          cf. United                      States v.  Hastings, 847 F.2d 920, 928-29 (1st Cir.          1988).                    This principle applies in regard to sentencing: when the          supposed constitutional infirmity derives from particular          attributes of a sentence imposed, the scope of relief is limited to          excising the taint from the sentence.                                                See,                                                     e.g.,                                                           Coker v.                                                                    Georgia,          433 U.S. 584, 600 (1977); United States v. Connell, 960 F.2d 191,                                          8          196-97 (1st Cir. 1992). Though we take no view as to whether the          concerns to which the district court alluded might warrant relief          at the sentencing stage, see generally United                                                         States v.  Saldana,          109 F.3d 100, 104 (1st Cir. 1997) (acknowledging the possibility          that the timing of an indictment might, in some circumstances,          "produce[] sentencing consequences so unusual and unfair that a          departure would be permissible"), those concerns are properly          reserved for consideration at the time of sentencing. They have          no bearing on the question of whether a trial should go forward.                    The anatomy of the doctrine of preindictment delay          strengthens our conviction that Judge Harrington prematurely          considered post-conviction possibilities. Dismissal for          preindictment delay on due process grounds requires, inter alia, a          showing of actual prejudice. See                                           United States                                                        v.                                                            Marion, 404 U.S.          307, 325-26 (1971); Acha v. United                                               States, 910 F.2d 28, 32 (1st          Cir. 1990) (per curiam). Accordingly, courts regularly have found          claims of prejudice related to sentencing possibilities too          speculative to implicate a defendant's due process right.    See,          e.g., United States v. Martinez, 77 F.3d 332, 336 (9th Cir. 1996)          (rebuffing the defendant's pretrial claim of prejudice from the          effects of preindictment delay on his likely sentence because the          guidelines provided leeway for departures);                                                     United States                                                                  v.                                                                      McCoy,                                             We note in passing that one of the principal constitutional          concerns underlying the district court's opinion, 947 F. Supp. at          553, has proven to be unfounded.  See United States v. Watts, 117          S. Ct. 633, 637-38 (1997) (per curiam) (upholding the          constitutionality of considering acquitted conduct, under a          preponderance standard, for sentence-enhancement purposes).                                          9          977 F.2d 706, 711 (1st Cir. 1992) (rejecting as conjectural the          argument that preindictment delay reduced the defendant's          opportunity to serve concurrent terms on state and federal          charges). So it is here: whether Stokes' case ultimately will          reach the sentencing stage, and if so, what sentence will be          imposed, are questions reserved for an uncertain future. By          premising his analysis of the indictment's trialworthiness on the          constitutional implications of a life sentence not yet imposed          (and, perhaps, never to be imposed), Judge Harrington jumped the          gun by several paces.                    To recapitulate, sentencing issues are properly addressed          during the sentencing phase of federal criminal trials. The          district court's flagrant contradiction of this tenet constituted          legal error.                             C.  Miscellaneous Grounds.                    Stokes attempts to confess and avoid. If the district          court erred in its reasoning, he says, its result nevertheless is          defensible as a condign remedy for prosecutorial vindictiveness, or          as a concinnous exercise of the court's supervisory powers, or          because the district court erred when it failed to dismiss the          indictment on the basis of preindictment delay. We weigh each          asseveration.                    1.  Prosecutorial                                       Vindictiveness. It is hornbook law          that a federal court may dismiss an indictment if the accused          produces evidence of actual prosecutorial vindictiveness sufficient          to establish a due process violation, or even if he demonstrates a                                         10          likelihood of vindictiveness sufficient to justify a presumption.          See United States v. Goodwin, 457 U.S. 368, 376, 380 n.12 (1982);          United                  States v. Marrapese, 826 F.2d 145, 147 (1st Cir. 1987).          Seizing on a singular reference in the closing paragraph of Judge          Harrington's opinion,  Stokes urges us to uphold the court's          "finding" that prosecutorial vindictiveness occurred here. In          mounting this challenge, Stokes eschews a claim of actual          vindictiveness, arguing instead that a presumption of          vindictiveness arises from the government's admission that it would          not have prosecuted Stokes federally had he been convicted of          murder (and, therefore, given a substantially longer sentence) in          the state court.                    We begin this segment of our analysis with a caveat:          courts should go very slowly in embracing presumptions of          prosecutorial vindictiveness in pretrial proceedings.                                                                See                                                                    Goodwin,          457 U.S. at 381. Here, moreover, the allegation of vindictiveness          is not only oddly timed, but also oddly configured. The sovereign          is not alleged to have retaliated, as in the typical case, because          an accused, embroiled in a legal battle with it, asserted a legal          right. See,                       e.g.,                             Blackledge v.                                           Perry, 417 U.S. 21, 28-29 (1974);          North Carolina                        v.                            Pearce, 395 U.S. 711, 724-25 (1969). Rather, the          federal government is alleged to be acting vindictively in          retaliation for an accused's victory in a                                                    state case. Since it is                                             The judge wrote, somewhat cryptically: "It is not fitting for          the United States to be vindictive . . . ."     United                                                                  States v.          Stokes, 947 F. Supp. at 557.                                         11          well settled that "the conduct of two independent sovereigns does          not lend itself to the concept of vindictive prosecution," United          States v.                    Bassford, 812 F.2d 16, 20 (1st Cir. 1987) (quoting                                                                      United          States v.                    Ng, 699 F.2d 63, 68 (2d Cir. 1983)), this is a difficult          sale to make.                    The level of difficulty increases due to the breadth of          the prosecutor's discretion. A federal prosecutor does not have          the resources (time, money, staff) to charge every suspected          malefactor. In picking and choosing, the prosecutor must act in a          fair and even-handed manner, and he is constrained by a set of          rules and conventions (both legal and ethical). But prosecutors          are not required to function as bloodless automatons: they may          (indeed, they should) make judgments about dangerousness, set          priorities, and give heightened attention to cases which inspire a          sense of outrage. This case illustrates the point: the          government's decision to refrain from initiating federal criminal          proceedings pending the outcome of a parallel (but independent)          state prosecution, and to relax the self-imposed restraint only          after it had been disappointed by the end result of the parallel          proceeding, falls squarely within the encincture of this          prosecutorial discretion. See                                         United States                                                      v.                                                         Fuzer, 18 F.3d 517,          520 (7th Cir. 1994); Ng, 699 F.2d at 68-69. The record indicates                                             Among other things, showing vindictive prosecution where two          separate sovereigns are involved would require a finding of          complicity between federal and state prosecutors.  See  Bassford,          812 F.2d at 20-21;                             Ng, 699 F.2d at 68. There is no basis for such          a finding here.                                         12          that Stokes is a dangerous criminal, and the federal government had          a perfect right to take a hard look at his case and to determine          whether society's interests call for the unusual step of          instituting a federal prosecution notwithstanding the prior          commencement of a state prosecution for substantially the same          conduct.                    We need not wax longiloquent. Simply put, the district          court's inscrutable reference to vindictiveness fails to compensate          for the utter absence of any circumstances from which a trier          legitimately could presume vindictiveness.  See United                                                                  States v.          Sutherland, 929 F.2d 765, 772 n.2 (1st Cir. 1991) (noting that          conclusory allegations are insufficient when the record lacks any          competent evidence of vindictiveness).                    2.   Supervisory                                        Powers. The dismissal is equally          vulnerable if viewed as an exercise of the district court's          supervisory powers. Such powers enable courts, within limits, to          formulate procedural rules not specifically contemplated by the          Constitution or codified in positive law.   See United                                                                  States v.          Hasting, 461 U.S. 499, 505 (1983). Thus, courts may invoke their          supervisory powers to implement a remedy for violation of          recognized rights, to preserve judicial integrity, or to deter          illegal conduct. See                                id.;                                     see                                         also                                              United States                                                           v.                                                               Horn, 29 F.3d          754, 760 (1st Cir. 1994). Even so, courts must use these powers          "sparingly."  United                                States v.  Santana, 6 F.3d 1, 10 (1st Cir.          1993).                    The district court did not explicitly invoke its                                         13          supervisory powers, but it did voice lingering concerns about          "fundamental fairness" and "fair play."  United States v. Stokes,          947 F. Supp. at 557. Stokes reads these references as reflecting          the court's belief that the government somehow abused its          prosecutorial discretion in lodging the indictment and thus denied          Stokes substantive due process. The facts do not bear out this          theory.                    Although dismissing an indictment on substantive due          process grounds is not unprecedented, it is extremely rare. Such          a drastic step is reserved for cases of "serious and blatant          prosecutorial misconduct that distorts the integrity of the          judicial process."  United                                      States v. Giorgi, 840 F.2d 1022, 1030          (1st Cir. 1988) (citation omitted). The instant case does not          present a suitable occasion for dismissing an indictment in order          to vindicate the court's supervisory authority.                    In this vein, Stokes' flagship case,  United                                                                  States v.          Rodman, 519 F.2d 1058 (1st Cir. 1975) (per curiam), gains him          little headway. There, we upheld the trial court's use of inherent          power to dismiss charges after the government breached a promise to          recommend against indictment in return for information which          included self-incriminating statements.    See  id. at 1059-60.          Rodman illustrates the sort of egregious circumstances which are          essential before a court appropriately may unleash its supervisory          powers to interfere with the exercise of prosecutorial discretion.          The case at bar _ in which the government had the discretion to          initiate a federal prosecution and punctiliously followed                                         14          applicable internal procedures in doing so _ is not of that genre.                    We give short shrift to Stokes' related allegation that          the indictment was subject to dismissal because of prosecutorial          abuse of sentence enhancers. A pretrial dismissal on this basis          constitutes a totally inappropriate use of the court's supervisory          powers.  See  supra Part II(B);  see also  Horn, 29 F.3d at 760          (warning that courts may not employ their inherent powers to          justify extreme remedies when "satisfactory anodyne[s]" exist which          are "more narrowly tailored to the objective").                    Finally, to the extent that Judge Harrington was          influenced in his ruling by his evident personal disagreement with          the government's decision to prosecute Stokes under federal law,          his action was inappropriate. It is a bedrock principle of our          system of criminal justice that "the Due Process Clause does not          permit courts to abort criminal prosecutions simply because they          disagree with a prosecutor's judgment as to when to seek an          indictment."  United States v. Lovasco, 431 U.S. 783, 790 (1977);          accord Santana, 6 F.3d at 11 (reading Supreme Court precedent as          "admonishing federal courts to refrain from using the supervisory          power to conform executive conduct to judicially preferred norms by          dismissing charges" without sufficient legal cause).                    In sum, the record contains no inkling of prosecutorial          misconduct, vindictiveness, or other conduct antithetic to          substantive due process which could justify dismissing the          indictment through the exercise of the court's supervisory powers.                    3.   Preindictment                                         Delay. Stokes' renewed claim of                                         15          unconstitutional preindictment delay lacks substance. A criminal          defendant who asserts such a claim bears the heavy burden of          showing not only that the preindictment delay caused him actual,          substantial prejudice, but also that the prosecution orchestrated          the delay to gain a tactical advantage over him.  See Marion, 404          U.S. at 324; United States v. Henson, 945 F.2d 430, 439 (1st Cir.          1991). The appellee shows neither.                    Stokes argues that he satisfied the first prong of the          test because, had the federal government promptly indicted him, he          would have continued searching for a potential defense witness,          Sherry Parkman, who disappeared between the date of the offense and          the date of the state court trial. Since the appellee was unable          to locate the witness at the time of his state trial, there is no          credible reason to believe that the delay on the federal side          placed him in a position less advantageous than he would have          occupied had the indictments been contemporaneous.                    The appellee's fallback position is that the delay          prejudiced him by denying him the benefit of running his state and          federal sentences concurrently. This is pure speculation and,          hence, inadequate to the task.  See McCoy, 977 F.2d at 711.                    At the expense of carting coal to Newcastle, we add that          Stokes also fails on the second prong of the test. By all          accounts, the government temporized until it knew the result of the                                             In all events Parkman's statements are ambiguous.        See          Commonwealth v.                          Stokes, 653 N.E.2d at 185. Because proof of actual          prejudice must be definite and not speculative,                                                          see                                                              Acha, 910 F.2d          at 32, this fact, without more, would sink the appellee's argument.                                         16          state court prosecution. Even then, the government deferred an          indictment because it gave priority to the prosecution of offenders          who, unlike Stokes, were not already in custody.                    The government's explanation is plausible and          unimpeached; it should, therefore, be accepted. See                                                               United States          v. Marler, 756 F.2d 206, 215 n.6 (1st Cir. 1985). It indicates          that the government acted out of proper motives and achieved no          undue tactical advantage. For these reasons, Stokes fails to          persuade us that the district court erred in refusing to dismiss          the case based on inordinate preindictment delay.          III. CONCLUSION                    We need go no further. It is evident to us that the          district court erred as a matter of law in dismissing the case          prior to trial. Having obtained a valid indictment within the          limitations period, the government is entitled to try the defendant          on the merits. Moreover, we think it best that the case be          transferred to a new trier on remand, and we so direct. See,                                                                        e.g,          United                  States v. Muniz, 49 F.3d 36, 42-43 (1st Cir. 1995);   Cia.          Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 430          (1st Cir. 1985).          Reversed.                                         17
