          United States Court of Appeals
                       For the First Circuit

No. 08-1029

                      UNITED STATES OF AMERICA,

                             Appellant,

                                 v.

                          EARL DESSESAURE,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Nancy Gertner, U.S. District Judge]


                               Before

                         Lynch, Chief Judge,

                Torruella and Boudin, Circuit Judges.


     Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellant.
     James B. Krasnoo, by appointment of the court, with whom
Krasnoo/Klehm LLP was on brief for appellee.



                          February 24, 2009
               Per Curiam.           In this appeal, the government challenges

the district court's dismissal with prejudice--for violations of

the Speedy Trial Act, 18 U.S.C. § 3161 (2006)--of its four-count

indictment against Earl Dessesaure.                   The prosecutor       concedes that

the statute was violated, but says that government error was

inadvertent         and   caused      only   a   modest   delay      and   no    harm,    so

dismissal should have been without prejudice.                          The background,

elaborated in the cited decisions, can be briefly summarized.

               On    June       4,   2003,   Dessesaure       was    indicted    on   drug

trafficking and gun charges.1                He was arrested on the street with

drugs; the police entered his apartment without a warrant and found

more drugs in sight; and, obtaining a warrant, agents then made a

detailed search and seized a gun, bullets, more drugs and drug

paraphernalia, money, and relevant documents.                        After hearings in

fall       2003,    the   district      court    on   April    13,    2004,     granted    a

suppression motion as to the evidence seized from the apartment.

United States v. Dessesaure, 314 F. Supp. 2d 81 (D. Mass. 2004).

               After failing to win reconsideration, United States v.

Dessesaure, 323 F. Supp. 2d 211 (D. Mass. 2004), the government

sought       review,      and    this   court    reversed      the    district    court's

decision to suppress the evidence obtained pursuant to the warrant,


       1
      Specifically, being a felon in possession of ammunition, 18
U.S.C. § 922(g)(1) (2006) (Count One); possession of heroin with
intent to distribute, 21 U.S.C. § 841(a)(1) (2006) (Counts Two and
Three); and possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A) (Count Four).

                                             -2-
ruling that it was admissible under the analysis set forth by the

Supreme Court in Franks v. Delaware, 438 U.S. 154 (1978) and Murray

v.   United    States,   487    U.S.   533   (1988).   United   States    v.

Dessesaure, 429 F.3d 359, 365 (1st Cir. 2005).         The mandate issued

March 7, 2006.     Nothing more happened until June 6, 2006--a period

of ninety-one days--when Dessesaure filed a letter requesting the

appointment of counsel to file a petition for certiorari.

              On June 14, 2006, the district court scheduled a status

conference for June 29.        There, the district judge questioned, sua

sponte, whether the delay violated the Speedy Trial Act.                 The

government's filing on July 14 conceded that a violation had

occurred and urged a dismissal without prejudice.           Dessesaure's

counsel responded on August 8, 2006, saying he would move for

dismissal with prejudice, although he did not then do so for a

number of months.

              On October 27, 2006, the district court held a hearing on

the Speedy Trial Act issue, observing that it could pursue any of

several options; that it was "tempted to dismiss with prejudice";

but that "most of these dismissals with prejudice are overturned."

The court continued:

              Given the state of the law, the odds are that
              I would be reversed, even though I strongly
              believe this is a case with misconduct, and
              this kind of fact-finding ought to be
              dismissed with prejudice . . . .




                                       -3-
            Dessesaure formally moved for dismissal with prejudice on

December 18, 2006.      Eleven months later, on November 21, 2007, the

district court dismissed the indictment against Dessesaure "with

prejudice."    United States v. Dessesaure, 527 F. Supp. 2d 193 (D.

Mass. 2007).        The district court agreed that the crimes were

"extremely serious" and that delay had been partly due to the court

itself, but said that the prosecution had "been flawed . . . in

many respects" and the defendant had languished in jail for too

long.    Id. at 198.

            The     government    now     appeals       and,    neither      facts   nor

governing law being seriously in dispute, our review is for "abuse

of discretion."      United States v. Kelley, 402 F.3d 39, 41 (1st Cir.

2005).     The issue is framed by the statutory scheme, a set of

factors that the law makes relevant to choosing a remedy, and a

pattern of case law that--as the district judge recognized--makes

dismissal    with    prejudice     a    last     and    rare    resort.       Sansone,

Annotation, 98 A.L.R. Fed. 660 (1990) (collecting case law on

dismissal with prejudice under the statute).

            The reason why such dismissals are ordinarily without

prejudice is obvious.      The Speedy Trial Act is a mechanical regime

which, nominally, requires trial within 70 days of indictment but

excludes    various    periods     from    the    calculation.          18    U.S.C.   §

3161(c)(1),    (h).      For     the    sake    of     both    the   public    and   the

defendant, it aims at prompt resolution of criminal charges; but it


                                          -4-
would not long survive if administered to turn routine slips into

permanent immunity for a defendant who may be quite dangerous.

          Given a violation, the statute and precedent require the

court to consider various factors.   The statute itself provides:

          In determining whether to dismiss the case
          with or without prejudice, the court shall
          consider, among others, each of the following
          factors: the seriousness of the offense; the
          facts and circumstances of the case which led
          to the dismissal; and the impact of a
          reprosecution on the administration of this
          chapter and on the administration of justice.

18 U.S.C. § 3162(a)(2).

          Perhaps the most concrete elements are the seriousness of

the offense, the cause of the delay and any resulting prejudice to

the defendant's ability to get a fair trial if re-prosecuted.    18

U.S.C. § 3162(a)(2); United States v. Scott, 270 F.3d 30, 58 (1st

Cir. 2001); United States v. Hastings, 847 F.2d 920, 925-29 (1st

Cir. 1988). Here, all three of these factors supported a dismissal

without prejudice as the fit remedy.

          Of the offenses charged, little need be said because

their seriousness is so obvious.   Hastings, 847 F.2d at 925.   The

combination of drug trafficking and guns has imposed a grim toll on

society. If the evidence seized at Dessesaure's apartment is taken

at face value--and he has not yet had a chance to defend himself at

trial--it explains why he did not press vigorously for an early

trial and makes a showing of prejudice more doubtful.



                               -5-
           The initial delay complained of by the district judge was

the failure to press the case forward between the issuance of this

court's mandate in March 2006 and the conference in June; but the

delay was not especially long, and the defendant was as well-placed

to remind the judge as was the prosecutor.         The delay between this

court's decision and the issuance of mandate was due to a defense

petition   for    rehearing   en   banc    which      was   legitimate   but

automatically stayed issuance of the mandate.

           By the time the district court dismissed the case, the

duration   had   become   substantial,    but   not    because   of   further

prosecution delay.    The defense, for example, said in August 2006

that it would seek dismissal with prejudice but delayed moving

until December.     The district judge then considered the ensuing

motion to dismiss for eleven months.       On the present facts neither

consideration supports a dismissal with prejudice.

           Ordinarily, the strongest argument against re-prosecution

is prejudice to the defendant--most importantly, loss of witnesses

or other impediments to obtaining a fair trial at a later date. See

Scott, 270 F.3d at 58; United States v. Barnes, 159 F.3d 4, 18 (1st

Cir. 1998).   But Dessesaure has not made any showing of this kind.

Further, if he were re-indicted and could prove real prejudice, he

could invoke a constitutional guarantee, which operates to protect

against such prejudice regardless of the Speedy Trial Act.               See




                                   -6-
U.S. Const. amend. VI; United States v. Mitchell, 723 F.2d 1040,

1049 (1st Cir. 1983).

           The district court made clear its view that the case was

flawed from the outset because the original entry into Dessesaure's

apartment was unlawful; but the prosecution was entitled to try to

rescue the case under Supreme Court precedent, and it prevailed on

the appeal.   Dessesaure, 429 F.3d at 367.   Of greater concern is

the district court's finding that Boston police officers did not

testify truthfully in the suppression hearing; but there is no

indication that federal prosecutors were parties to the deceit nor

is it clear that any inaccuracies in testimony had anything to do

with the Speedy Trial Act violations.    See Hastings, 847 F.2d at

925-26.

           The judgment of dismissal without prejudice is reversed

and the case remanded for entry of judgment of dismissal without

prejudice which must be done within seven days of issuance of our

mandate.   Our mandate shall issue forthwith.

           It is so ordered.




                                -7-
