PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 99-4262

COREY DEON GOODSON,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-98-216)

Argued: December 1, 1999

Decided: February 11, 2000

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and Samuel G. WILSON, Chief United States District Judge
for the Western District of Virginia, sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Chief Judge Wilkinson and Chief Judge Wilson
joined.

_________________________________________________________________

COUNSEL

ARGUED: Vincent L. Gambale, Assistant United States Attorney,
Alexandria, Virginia, for Appellant. Barbara Lynn Hartung, Rich-
mond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Alexandria, Virginia; James B. Comey, Assistant
United States Attorney, Richmond, Virginia, for Appellant.
OPINION

NIEMEYER, Circuit Judge:

When Corey Goodson refused to accept a proposed plea agreement
on the day of his trial for firearms violations, the government renewed
a request made the prior week for a postponement of trial for at least
eight days because it had not adequately secured the attendance of
crucial witnesses. The district court denied the government's motion
for a continuance. Thereafter, when the government made a motion
to dismiss the case voluntarily under Federal Rule of Criminal Proce-
dure 48(a) to permit it to start again with a new charging document,
the court invited Goodson to make a motion to dismiss, which it then
granted. After the government issued a warrant to reprosecute Good-
son, the court stated that its prior dismissal had been "with prejudice,"
denying the government any opportunity to retry Goodson for the
alleged violations. On the government's appeal, we reverse the "with
prejudice" aspect of the district court's dismissal order.

I

Following a police search of an apartment in Richmond, Virginia,
where Corey Goodson was staying, police recovered a firearm and
ammunition. Goodson was indicted on July 8, 1998, on five counts
relating to possession of an unregistered firearm and ammunition. At
arraignment, the court scheduled trial for January 13, 1999. Two days
before the scheduled trial date, the United States obtained a supersed-
ing indictment against Goodson to correct an error in the allegation
of the date of his charged criminal conduct, changing it from April 6,
1998, to February 17, 1998. Other than the change in date, however,
the superseding indictment was the same as the original indictment.
Because Goodson asserted his right not to be tried sooner than 30
days after the superseding indictment was filed, see 18 U.S.C.
§ 3161(c)(2), the district court rescheduled trial for February 16,
1999, a date to which the parties agreed.

Approximately two weeks before the scheduled February trial date,
government prosecutors learned that one of the government's key wit-
nesses, Henrico County Officer Robert Augustine, would be on a pre-
paid vacation in Europe on February 16, returning shortly before

                     2
February 24, 1999. The government notified Goodson that if he did
not agree to a proposed plea agreement by February 5, 1999, the gov-
ernment would have to seek a continuance because of Officer Augus-
tine's absence. At Goodson's request, the government agreed to
extend this deadline to February 8 so that Goodson could consult with
his mother.

On February 8, Goodson informed the government that he would
not accept a plea agreement and intended to go forward with trial.
Accordingly, the government requested a continuance from the court
because of Officer Augustine's expected absence. When the court
denied the motion, the government attempted to contact Officer
Augustine, whom it had not subpoenaed, but learned that he had
already left the country. On February 12, 1999, the government
moved for reconsideration of the court's denial of its motion for a
continuance, stating that it could be prepared for trial on February 24,
1999, shortly after Officer Augustine's return from Europe. The court
again refused to grant a continuance.

On the morning of February 16, the date set for trial, the govern-
ment prosecutors learned that the government's other critical witness,
Henrico County Officer Evan Young, also would be unable to testify
at trial. Although Officer Young had been subpoenaed to attend trial
on February 16, he could not appear because he was a member of a
SWAT unit that was involved in a standoff with a man who had taken
his estranged wife hostage. The government prosecutor also learned
on the morning of trial that Goodson had signed the plea agreement
and intended to plead guilty when the case was called.

When the case was called and the court entered into a plea colloquy
with Goodson, Goodson refused to admit factual guilt or to accept the
court's invitation to enter an Alford plea.* He maintained his inno-
cence and stated that he wished to proceed with a bench trial. At that
point the government advised the court that because neither Officer
Augustine nor Officer Young was available, it could not present its
case on that date. Accordingly, the government renewed its motion
_________________________________________________________________
*See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (permitting
a court to accept a guilty plea where there is a factual basis for the plea
but the defendant asserts his innocence).

                    3
for an eight-day continuance. When the court denied the motion, the
following colloquy ensued:

           [Prosecutor]: Your Honor, then, it is the United States'
          position that we will need to dismiss the indictment. And
          just for the benefit of Mr. Goodson and Mr. Parker[Good-
          son's attorney], it is our intention to file a criminal com-
          plaint this morning with regard to the charges.

           The Court: Thank you. You can have a seat. Mr. Parker,
          do you have a motion?

           Mr. Parker: I guess, Your Honor, if the government has
          a motion to dismiss at this point, Your Honor, I don't think
          --

           The Court: I didn't ask you that. I heard the government's
          motion. I asked you did you have a motion. Mr. Parker, the
          government is not prepared to proceed to trial today. Today
          was the day set for trial. Nobody is dead. Nobody is sick.
          People are, because of the press of other business, are not
          here in Court. That is not a sufficient basis for a continu-
          ance. Do you have a motion? Represent your client, Mr.
          Parker.

          Mr. Parker: Motion to dismiss, Your Honor.

          The Court: Granted. Thank you.

The court then adjourned and entered an order which stated, "The
matter was . . . called and the Government was unprepared to proceed.
As such, the Court GRANTED the Defendant's Motion to Dismiss.
The Indictment in this action is hereby DISMISSED."

A few days later, when the government obtained a warrant for
Goodson's arrest for reprosecution of the firearms charges, the court
quashed it, ordering that the government not "issue another Warrant
of Arrest for Mr. Goodson on these same charges and set of facts."

                    4
On the government's motion for reconsideration, the court denied
the motion, indicating that it had dismissed Goodson's indictment
with prejudice. The court noted that the parties had previously agreed
on a mutually acceptable date and that the court's"calendar was very
congested and trial days were difficult to come by." The court stated
that neither Officer Augustine's vacation in Europe nor Officer
Young's SWAT team duty was a sufficient basis for a continuance.

This appeal followed.

II

The government contends that the district court erred in not grant-
ing its motion to dismiss the indictment under Federal Rule of Crimi-
nal Procedure 48(a) because the court made no finding of bad faith
and the record was "devoid of any [such] evidence." It contends also
that the court erred in granting, with prejudice, Goodson's motion to
dismiss the indictment, whether under Federal Rule of Criminal Pro-
cedure 48(b) or under its general supervisory power, because Good-
son demonstrated no prejudice or substantial threat thereof from the
government's proposed delay. The government argues that the court
may dismiss an indictment with prejudice "only in extreme circum-
stances involving prosecutorial misconduct, demonstrable prejudice,
and oppressive delay." The government does not challenge the district
court's exercise of discretion in denying the government's various
motions for a continuance.

Federal Rule of Criminal Procedure 48(a) provides:

          The Attorney General or the United States attorney may by
          leave of court file a dismissal of an indictment, information
          or complaint and the prosecution shall thereupon terminate.
          Such a dismissal may not be filed during the trial without
          the consent of the defendant.

While the rule confers discretion on the district court to deny the gov-
ernment's motion to dismiss a charging document, this discretion is
not broad. See United States v. Perate, 719 F.2d 706, 710 (4th Cir.
1983) ("[T]he trial court has little discretion in considering a govern-

                    5
ment motion to dismiss made pursuant to [Rule 48(a)]" (internal cita-
tions omitted)). Indeed, the court must grant the government's Rule
48(a) motion unless the court concludes that to grant it would be
clearly contrary to manifest public interest, determined by whether the
prosecutor's motion to dismiss was made in bad faith. See Rinaldi v.
United States, 434 U.S. 22, 30 (1977) (per curiam) ("The decision to
terminate this prosecution . . . was motivated by considerations which
cannot fairly be characterized as `clearly contrary to manifest public
interest'" (internal citations omitted)); United States v. Smith, 55 F.3d
157, 159 (4th Cir. 1995) ("The disposition of a government's motion
to dismiss an indictment should be decided by determining whether
the prosecutor acted in good faith at the time he moved for dismissal.
A motion that is not motivated by bad faith is not clearly contrary to
manifest public interest, and it must be granted"); Perate, 719 F.2d at
710 (stating that a Rule 48(a) motion must be granted "absent a find-
ing of bad faith or disservice to the public interest").

We review a district court's refusal to grant a prosecutor's motion
for dismissal under Rule 48(a) for abuse of discretion. Smith, 55 F.3d
at 158; Perate, 719 F.2d at 710. In doing so, we "must carefully scru-
tinize the district court's action." Smith , 55 F.3d at 158. This is so
because the discretion granted by Rule 48(a) implicates the constitu-
tional doctrine of separation of powers. See id .; United States v.
Cowan, 524 F.2d 504, 513 (5th Cir. 1975). As then-Judge Warren
Burger wrote, "Few subjects are less adapted to judicial review than
the exercise by the Executive of his discretion in deciding when and
whether to institute criminal proceedings, or . . . whether to dismiss
a proceeding once brought." Newman v. United States, 382 F.2d 479,
480 (D.C. Cir. 1967).

In this case, the district court concluded that the United States
failed to meet its responsibility to meet the court's schedule by secur-
ing the presence of witnesses. As a consequence of this failure, when
the case was called, the district court determined that "the government
was unprepared to proceed." The court did not, however, find that the
government had acted in bad faith, nor does the record indicate a
basis for such a finding. Accordingly, we conclude that the district
court abused its discretion in turning aside the government's Rule
48(a) motion and inviting a motion to dismiss from the defendant,

                     6
presumably to be made under either Rule 48(b) or the court's general
supervisory power, although the court did not specify which.

III

While the government understandably has no objection to the dis-
trict court's dismissal of the indictment, whether under Rule 48(b) or
under the court's supervisory power -- indeed, the government had
filed its own motion to dismiss under Rule 48(a)-- it objects to dis-
missal with prejudice. It argues that the district court did not find the
circumstances required to justify a dismissal with prejudice and that
the record would not, in any event, support such a finding.

Although the district court did not explicitly identify the authority
on which it relied for its ruling, either Rule 48(b) or the court's super-
visory power could have provided a basis for the court's dismissal,
and the line of demarcation between the two sources of authority is
not clearly defined. See, e.g., United States v. Simmons, 536 F.2d 827,
832 (9th Cir. 1976) (Rule 48(b) authority "is derived from the court's
supervisory authority in regard to its own jurisdiction"). Federal Rule
of Criminal Procedure 48(b) provides:

          If there is unnecessary delay 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.

This provision not only allows a court to dismiss an indictment on
constitutional grounds, see Pollard v. United States, 352 U.S. 354,
361 n.7 (1957) (noting that Rule 48(b) provides for enforcement of
the Sixth Amendment's speedy-trial right), but it also restates the
court's inherent power to dismiss an indictment for lack of prosecu-
tion where the delay is not of a constitutional magnitude, see Fed. R.
Crim. P. 48(b) advisory committee note (pointing out that the rule
restates the "inherent power of the court to dismiss a case for want
of prosecution"). See also United States v. Balochi, 527 F.2d 562,
563-64 (4th Cir. 1976) (per curiam) (Rule 48(b)"supplements the dis-
trict court's obligation to dismiss indictments in order to protect a
defendant's constitutional rights, and it is broader in compass").

                     7
If made under Rule 48(b), Goodson's motion would appear to rest
on the government's failure to prosecute without unnecessary delay
because the government appeared for trial unprepared-- what Rule
48(b)'s advisory committee note refers to as a "want of prosecution."
See Fed. R. Crim. P. 48(b) advisory committee note; United States v.
Hattrup, 763 F.2d 376 (9th Cir. 1985) (applying Rule 48(b) where
delay was due to failure of prosecution's sole witness to appear);
United States v. Correia, 531 F.2d 1095, 1099 (1st Cir. 1976) (apply-
ing Rule 48(b) where case had been called for trial, motion for contin-
uance was denied, and government was not ready to proceed).
Goodson made the motion in response to the court's suggestion and
its observation that "the government is not prepared to proceed to trial
today. Today was the day set for trial. Nobody is dead. Nobody is
sick. People are, because of the press of other business, are not here
in Court."

If the district court's dismissal was not premised on the "unneces-
sary delay" that may justify dismissal under Rule 48(b), the court may
have been relying on its general supervisory power to administer its
docket and preserve the integrity of the judicial process. A court's
supervisory power authorizes it to "formulate procedural rules not
specifically required by the Constitution or by Congress." United
States v. Hasting, 461 U.S. 499, 505 (1983) (recognizing use of the
power to discipline a prosecutor); see also United States v. Lee, 906
F.2d 117, 119 (4th Cir. 1990) (per curiam) (involving dismissal of a
case without specifying source of authority because prosecutor failed
to procure the attendance of a witness). While it is not altogether clear
that attorney discipline was an object of the district court's action, the
court did justifiably express frustration with the prosecutor's effort to
manipulate its calendar, noting that its calendar was "very congested"
and that trial dates were "difficult to come by."

Under both Rule 48(b) and its supervisory power, a district court
has broad discretion to manage its docket and to impose a wide range
of sanctions against parties who violate the court's scheduling orders.
The sanction of dismissal with prejudice, however, is a harsh remedy
for enforcement of those powers, and, indeed, its use becomes a sig-
nificant event. For in dismissing an indictment with prejudice, the
court allows its interest in the orderly administration of justice to
override the interests of victims and the public interest in the enforce-

                     8
ment of the criminal law. See United States v. Derrick, 163 F.3d 799,
807 (4th Cir. 1998) ("The dismissal of an indictment altogether
clearly thwarts the public's interest in the enforcement of its criminal
laws in an even more profound and lasting way than the requirement
of a retrial"); Hattrup, 763 F.2d at 378 (referring to the "harsh remedy
of dismissal with prejudice"). Accordingly, to reconcile these compet-
ing interests, it is established that a district court may not, in the man-
agement of its docket, exercise its discretion to dismiss an indictment
with prejudice, either under Rule 48(b) or under its supervisory
power, unless the violation caused prejudice to the defendant or posed
a substantial threat thereof. See Derrick, 163 F.3d at 806 (noting that
dismissal of an indictment with prejudice "without a finding of preju-
dice is directly contrary not only to the precedent of this court, but
also to clear and well-established Supreme Court precedent"); Lee,
906 F.2d at 120 (holding that "`absent demonstrable prejudice, or sub-
stantial threat thereof, dismissal of the indictment is plainly inappro-
priate, even though the violation may have been deliberate'" (quoting
United States v. Morrison, 449 U.S. 361, 365 (1981))); Hattrup, 763
F.2d at 378 (holding that the failure of the government's sole witness
to appear for trial, when the witness had not been subpoenaed, did not
warrant dismissal with prejudice under Rule 48(b) absent "prosecu-
torial misconduct and demonstrable prejudice or substantial threat
thereof"); see also Hasting, 461 U.S. at 505-09 (holding that an appel-
late court's supervisory power to dismiss could not be exercised to
discipline prosecutorial misconduct where misconduct was harmless).

In Lee, the district court denied the government's request for a con-
tinuance to procure a missing defense witness for whose absence it
was allegedly responsible. After inviting the defense to make a
motion to dismiss, the district court dismissed the indictment with
prejudice, without identifying which power it was exercising and
without finding that the defendant was prejudiced by the delay. We
reversed, finding that the defendant would not be prejudiced by a con-
tinuance of the case. We observed that the defendant's failure to show
prejudice, or a substantial threat of prejudice, rendered dismissal of
the indictment "plainly inappropriate." Lee, 906 F.2d at 120.

Similarly, in Hattrup, then-Judge Anthony Kennedy held that the
failure of the government's sole witness, who had not been subpoe-
naed, to appear for trial did not warrant dismissal of the indictment

                     9
with prejudice under Rule 48(b) absent "prosecutorial misconduct and
demonstrable prejudice or substantial threat thereof." Hattrup, 763
F.2d at 378.

The same principles apply to the court's exercise of its supervisory
authority to sanction prosecutorial misconduct. In Hasting, the Court
held that an appellate court could not exercise its supervisory power
to discipline prosecutorial misconduct by reversing a conviction
where the alleged misconduct was harmless. 461 U.S. at 505-09; see
also Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988)
(holding that a district court has "no authority to dismiss the indict-
ment [with prejudice] on the basis of prosecutorial misconduct absent
a finding that [the] petitioners were prejudiced by such misconduct");
Derrick, 163 F.3d at 806 (same).

In holding that there must be a showing of prejudice to the defen-
dant or a substantial threat thereof before a court may dismiss an
indictment with prejudice for unnecessary delay either under Rule
48(b) or under its supervisory power, we do not disturb the settled
analysis for determining whether an indictment must be dismissed for
violation of the Sixth Amendment right to a speedy trial. See Barker
v. Wingo, 407 U.S. 514, 530 (1972). Nor does our holding alter the
more relaxed requirements for dismissals of an indictment without
prejudice.

With these principles in hand, we now turn to the circumstances
before us. In granting Goodson's motion for dismissal with prejudice,
the district court never addressed whether Goodson would be preju-
diced by a denial of his motion to dismiss. The court apparently
reacted only to the prosecution's failure to observe the court-
scheduled trial date, its negligence in securing the attendance of wit-
nesses, and its indication that it intended to dismiss the case under
Rule 48(a) in order to reprosecute Goodson, which would require a
new trial date. The trial, first scheduled on January 13, 1999, was con-
tinued because the government reindicted Goodson to correct an error
in the indictment and Goodson elected to have an additional 30 days
to respond to the superseding indictment. A trial was rescheduled for
February 16, 1999, a little over one month later. The continuance
requested repeatedly by the government on February 16, 1999, and
earlier, would have required a third trial date. In short, the court's dis-

                     10
missal appears to have been an understandable effort to enforce its
scheduling orders and to discipline the prosecutors for their failure to
comply with them.

Even though the district court did not identify any prejudice to
Goodson that might have been caused by the government's requested
delay to restart Goodson's prosecution, and Goodson claimed no such
prejudice, we must still determine whether the record supports a find-
ing of the prejudice that Goodson now claims from the "unnecessary
delay in bringing [him] to trial." Fed. R. Crim. P. 48(b). While the
record might support a conclusion that the government was negligent
-- Goodson contends that the government's conduct was both negli-
gent and in bad faith -- the record does not support a claim that the
requested delay would have violated any speedy trial right, constitu-
tional or statutory, or that it would have prejudiced in any way his
ability to present his defense. To show prejudice, he argues only that
he remained incarcerated "throughout these proceedings."

The prohibition in our criminal justice system against unnecessary
delay is designed (1) to protect against "undue and oppressive incar-
ceration prior to trial," (2) to "minimize anxiety and concern accom-
panying public accusation," and (3) to protect the "ability of an
accused to defend himself." Smith v. Hooey , 393 U.S. 374, 378 (1969)
(quoting United States v. Ewell, 383 U.S. 116, 120 (1966)). The
record does not provide any evidence implicating the values underly-
ing the second and third objectives. See United States v. Grimmond,
137 F.3d 823, 829-30 (4th Cir. 1998) (concluding that prejudice not
shown where there was no indication that, as a result of the delay, any
witness would be unavailable or unable accurately to recall the events
in question or that any exculpatory evidence would be lost or unavail-
able); United States v. Shepherd, 511 F.2d 119, 123 (5th Cir. 1975)
(recognizing that prejudice from anxiety requires"more than the nor-
mal anxiety that accompanies a trial"). While Goodson does claim
that he would have been incarcerated for the period of any further
postponement, the duration of this period would not be more than a
month or so, which does not constitute the "oppressive incarceration"
against which speedy trial requirements were designed to protect. See
Barker, 407 U.S. at 534 (finding that prejudice from ten months in jail
before trial was minimal).

                     11
Because Goodson would have suffered no demonstrable prejudice
or threat of prejudice from the requested continuance, and because the
district court found none, the district court's dismissal with prejudice
constituted an abuse of discretion. As both Goodson and the govern-
ment requested a dismissal, it is only the "with prejudice" aspect of
the district court's order that is at issue. Accordingly, we reverse the
district court's order dismissing the indictment with prejudice and
remand with instructions to modify the order to dismiss without
prejudice.

REVERSED AND REMANDED WITH INSTRUCTIONS

                    12
