
USCA1 Opinion

	




        August 21, 1992     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1109                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                            DOMINGO RAMIREZ, JR., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                             Lay,* Senior Circuit Judge,                                   ____________________                            and Pieras,** District Judge.                                          ______________                                 ____________________            F.  Mark Terison,  Assistant  United States  Attorney,  with  whom            ________________        Richard S.  Cohen, United States Attorney, and  Margaret D. McGaughey,        _________________                               _____________________        Assistant United States Attorney, were on brief for appellant.            Judy Potter for appellee Alejandro Rivas.            ___________            Jeffrey D. Clements with whom Jensen  Baird Gardner & Henry was on            ___________________           _____________________________        brief for appellee Domingo Ramirez, Jr.                                 ____________________                                 ____________________        _____________________        *  Of the Eighth Circuit, sitting by designation.        ** Of the District of Puerto Rico, sitting by designation.               PIERAS, JR., District Judge.  This  is  an  appeal from  the               PIERAS  JR.  District Judge                            ______________          District  Court  of  Maine's   dismissal  with  prejudice  of  an          indictment for violation  of the  Speedy Trial Act,  18 U.S.C.             3161.  The Speedy Trial Act ("STA") was violated when a number of          pretrial motions were not  ruled upon within the thirty  day time          period  for evaluation,  and the  defendants were held  for trial          beyond  the  seventy day  limitation.   At  issue is  whether the          district court abused its discretion by dismissing the indictment          with prejudice  rather than dismissing  it without prejudice.   A          review  of the  record reveals  that the  district court  did not          abuse  its  discretion,  and  therefore we  affirm  the  district          court's dismissal with prejudice.          I.   THE FACTS          I.   THE FACTS               On  June  12,  1991,  defendants Domingo  Ram rez,  Jr.  and          Alejandro  Rivas were  charged  in a  two  count indictment  with          possession  of over  500  grams of  cocaine  with the  intent  to          distribute,  and conspiracy  to  distribute, in  violation of  21          U.S.C.    841(a)(1), 841(b)(1)(B) and   846.  The defendants were          arraigned on  June 21, 1991.   Both defendants filed a  number of          pretrial motions.  Defendant  Rivas filed his motions on  July 5,          1991, and Ram rez filed his motions on July 8, 1991.  The motions          were kept under advisement for eighty one days and were not ruled          upon by the district  court until October 22, 1991,  in violation          of                                           2          the  STA.  The STA safeguards an accused's Sixth Amendment "right          to a speedy and public trial,"1 by mandating that:               In any  case in which a  plea of not guilty  is entered, the               trial of a defendant charged in an information or indictment               with  the commission  of  an offense  shall commence  within               seventy days from the filing date (and making public) of the               ____________               information or  indictment, or  from the date  the defendant               has appeared before a judicial officer of the court in which               such charge is pending, whichever date last occurs.          18 U.S.C.    3161(c)(1).   Absent extenuating  circumstances, not          present here, the STA  provides  for only a thirty day advisement          period  by  the court,  when ruling  upon  pretrial motions.   18          U.S.C.    3161(h)(J).   Thus,  the STA  was violated by  the long          period of time  with which  the district court  took the  motions          under advisement.2                                        ____________________          1U.S. Const. amend. VI.          2The  parties dispute  the  exact number  of  days by  which  the          permissible period was exceeded, but the dispute is immaterial to          the  present  appeal  because   both  parties  concede  that  the          defendants  were  detained  beyond  the STA  70  day  limitation.          United  States v.  Taylor, 487  U.S. 326,  332 n.6  (1988) (where          _________________________          decision  does not turn on distinction between a violation of "x"          as opposed to "y" number of days, appellate court need not decide          whether district  court's numerical count of  excludable days was          erroneous).                           Furthermore, we conclude in  the circumstances of this case,          that a delay of 31 days is just as serious as a delay of 46 days.          United  States v.  Russo, 741  F.2d 1264,  1267 (11th  Cir. 1984)          ________________________          (delays of  several months  sufficient to bar  reprosecution even          though crime serious),  cited with approval  in United States  v.                                  _____ ____ ________  __ _________________          Hastings,  847 F.2d 920, 929  (1st Cir.), cert.  denied, 488 U.S.          ________                                  ____   ______          925 (1988);  but cf. United  States v.  Brown, 770 F.2d  241, 244                       ___ __  ________________________          (1st  Cir. 1985) (delay  of 35  days not  exorbitant when  due to          failure to anticipate a ruling by court of appeals on legal issue          not  previously  free from  doubt  as  opposed to  administrative          neglect), cert. denied, 474 U.S. 1064 (1986).                    ____  ______                                          3               When the  district court  granted the defendants'  Motion to          Dismiss  the  Indictment  based   upon  the  STA  violation,  the          Memorandum  of Decision placed the onus of the violation upon the          prosecutor  and secondarily  upon the  administrative arm  of the          court.  Yet it is understood that the ultimate responsibility for          ruling upon pretrial motions  in a timely manner, rests  with the          court.3   United  States v. McAfee,  780 F.2d 143,  146 (1st Cir.                    ________________________          1985) (primary responsibility for  meeting the Act's requirements          rests on  the court despite  its administrative confusion).   The          prosecution agrees that the  STA was violated but argues  that it          was erroneous for  the district  court to dismiss  the case  with          prejudice, when  the defendants had  been charged with  a serious          drug  conspiracy  and  the  violation  was  due  to  an  isolated          administrative oversight within the court.            II.  ANALYSIS          II.  ANALYSIS               When considering  whether an indictment should  be dismissed          with or  without prejudice,  a district court  must consider  the          following factors set forth in section 3162(a)(2) of the Act:          1) the seriousness of the offense; 2) the facts and circumstances          of the case  which led to the dismissal;  and 3) the impact  of a          reprosecution upon  the administration of  the Act  and upon  the          administration of justice.   Factual findings of a district court          are entitled to substantial deference, and will  only be reversed                                        ____________________          3In  order to place the onus upon the prosecutor for notification          of  an impending STA violation, the district court must rely upon          a written local rule, or other order of the court.  United States                                                              _____________          v. Miranda, 835 F.2d 830, 833-34 (11th Cir. 1988).          __________                                          4          for clear error.  Anderson v. Bessemer City, 470 U.S. 564 (1985).                            _________________________          Yet,  because  the  district  court was  required  to  apply  the          statutory criteria  of section 3162(a)(2)  to the facts,  we must          undertake a more substantive scrutiny to ensure that the judgment          is supported in terms  of the factors delineated in  the statute.          United  States v. Taylor, 487 U.S.  326, 337 (1988).  "[W]hen 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.                        __               In the instant  case, the defendants were  indicted with the          possession  of 500 grams of cocaine with the intent to distribute          it, which the  district court  found to be  of "very  substantial          seriousness."  District Court Memorandum of Decision at 3.  Thus,          the government's criticism that  the District Court did not  give          sufficient  consideration to  the seriousness  of the  offense is          without  merit.   Indeed, we  have  previously stated  that "[b]y          their  very  nature,   drugs-for-profit  offenses  are  extremely          serious."  United States v. Hastings, 847 F.2d 920, 925 (1st Cir.                     _________________________          1988), cert. denied, 488 U.S.  925 (1990).  It is apparent  to us                 ____  ______          that the district court gave due weight to our admonition.                 The  facts and circumstances which  led to the dismissal are          also of a  serious nature because of the  pervasiveness of such a          risk of  administrative oversight in all courts.  Nothing unusual          occurred in this case.   The district court merely lost track  of                                          5          the  STA deadline, in  the midst of  attending to its  many other          cases.4  It is  the ordinariness of the oversight which makes the          circumstances  so serious.   It can happen  in any  court, at any          time.   The expansiveness of  such a STA  violation risk makes it          important for a  court to correct for the sake  of deterrence and          more  painstaking  vigilance.5   Even  though  the oversight  was          accomplished without malice, that does not ameliorate the gravity          of its effects.  When a  STA violation is caused by the  court or          the prosecutor, it weighs  in favor of granting a  dismissal with          prejudice.    Hastings,  847  F.2d  at  925.    An administrative                        ________          oversight is no  excuse for a  STA violation.   United States  v.                                                          _________________          Caparella, 716 F.2d 976, 980 (2d Cir. 1983).          _________               Upon  consideration of  the third  and final  factor  of the          "dismissal  with   prejudice"   analysis,  the   district   court          appropriately  found  that the  impact  of  reprosecution of  the          defendants  would be severe in this case.  "Reprosecution in this          case would send exactly the wrong signal to those responsible for          complying  with the  Acts [sic]  requirements and  would, in  all                                        ____________________          4The  prosecution inaccurately  contends that the  district court          erroneously weighed this second factor because the district court          mistakenly thought  that the  defendants were incarcerated  seven          months beyond the STA deadline.  In actuality, the district court          merely  noted that defendants had  been incarcerated in excess of                                                               _________          seven  months while waiting for  timely trial, not  that they had          waited seven months in excess of the STA deadline.  See  District                                                              ___          Court Memorandum of Decision at 3.          5See Martha  L. Wood, Note, Determination  of Dismissal Sanctions           ___                        _____________________________________          Under the Speedy Trial Act of 1974, 56 Fordham L. Review 509, 532          __________________________________          (1987) (negligent  violations are  not necessarily  incidental or          unusual  but often  are chronic  and  result of  deeply ingrained          dilatory practices of both court and prosecutor).                                          6          likelihood,  foster in [the] future  a cavalier regard,  if not a          concerted  disregard,   of  those  requirements.     Justice,  as          visualized under  the  Act, will  be  poorly   served by  such  a          precedent."  District Court Memorandum of Decision at 4.  Such an          observation  by the district court was very astute given the fact          that  dismissal with  prejudice "is  more likely  [than dismissal          without  prejudice] to  induce  salutary  changes  in  procedures          reducing pretrial  delays."   United States v.  Taylor, 487  U.S.                                        ________________________          326,  342 (1988).   Even though  a prosecutor  does not  bear the          burden  of  monitoring the  court's  compliance with  the  STA in          absence  of  an  announced  rule,  district  courts  do  look  to          prosecutors   for   assistance   as   officers   of   the  court.          Consequently,  it  is wise  for prosecutors  to  be alert  to STA          calculations in order to aid the court in  its enforcement of the          STA.   Logically,  it was  permissible for  the "sovereign"  as a          whole  (both  court and  prosecutor)  to be  issued  a cautionary          reminder in  the form of  a dismissal with  prejudice, as  to the          importance of the STA.  Hastings, 847 F.2d at 925.  "We recognize                                  ________          that  whenever government - for whatever reasons - falls short of          meeting the Act's requirements,  the administration of justice is          adversely  affected."   Hastings,  847 F.2d  at 926  (legislative                                  ________          history of the  Act demonstrates its importance in advancing both          the public and private interests in fair and expeditious trial of          criminal cases).               Given the  above review of the  district court's application          of  the STA dismissal with prejudice analysis, we cannot conclude                                          7          that the  district court abused its discretion  in dismissing the          indictment with prejudice, because  the district court considered          each statutory factor and did  not, for all that appears, make  a          serious error  of judgment  in weighing  them.   See  id. at  924                                                           ___  __          (describing  test  for  abuse  of discretion).    Therefore,  the          district court's decision is hereby affirmed.                                              affirmed                                              ________                                          8
