*1 America, UNITED STATES
Plaintiff-Appellee,
Larry MOSS, Lamont Defendant-
Appellant.
No. 98-6042. Appeals,
United States Court of Circuit.
Sixth
Argued: Sept. 1999.
Decided and Filed: June
tion of the Speedy Trial Act and his Sixth 3) trial; Amendment to a speedy 4) denying his motion suppress; enhancing his sentence for obstruction of *3 justice. follow, For the reasons that we REVERSE the district court’s decision to dismiss the preju- first indictment without dice and do not reach the remaining issues appeal.
I. BACKGROUND 22, 1995, On March three narcotics offi- cers from Shelby County Sheriffs De- partment executed search warrant at a residence located on 1068 National in Quarles briefed), Brian (argued J. Tennessee, Memphis, and brought along Assistant Attorney, United States Mem- “Torque,” a narcotics detecting dog. As Tennessee, phis, for Appellee. the officers entered the residence and be- briefed), (argued Thomas J. Gibson gan handcuffing inside, people Larry Office of the Federal Public Defender for Moss exited from a bedroom in the house. Tennessee, the Western District of Mem- One of the patted officers handcuffed and Tennessee, phis, Appellant. down Moss and located a gram tenth of a of crack in pocket. cocaine his The officer GILMAN, Before: BATCHELDER and noticed that Moss’ hands were wet. In Judges; HOOD, Circuit District Judge.* bedrooms, one of the the officers found a water, rocks, fish tank which contained HOOD, D.J., delivered the opinion of the alligator. and a live Torque, the narcotics BATCHELDER, 432), court. (p. J. detecting dog, indicated that narcotics delivered a separate opinion concurring in were in the fish tank. While one officer opinion both the of the court and Judge restrained the alligator, another officer separate Gilman’s concurrence. searched the inside of the tank. Beneath GILMAN, (pp. 433-36), J. delivered a the rocks submerged in water were separate opinion concurring in the several bags plastic and a container with judgment. all, crack cocaine inside. the officers grams seized 79.5 of cocaine and two digi- OPINION tal scales. HOOD, Judge. District Moss was arrested and made his initial Larry Defendant appeals Moss jury his appearance before a magistrate judge on possession conviction for of cocaine with March 1995. The court granted Moss intent to distribute in violation of 21 U.S.C. two continuances to allow him to retain 841(a)(1), and his sentence of 262 28, 1995, counsel. On March a magistrate imprisonment, months years and five judge su- appointed counsel for Moss and set a pervised release. Moss claims the probable district hearing for the next cause/bail 1) court committed error by: dismissing day. appeared Moss day next with his first indictment without prejudice for retained counsel. The court found proba- 2) Act; violation of cause, not ble and Moss was detained pending dismissing his second indictment for viola- .trial.
* Hood, Page Honorable Denise Michigan, United sitting by designation. Judge States District for the District Eastern The motion was opportunity respond. 17, 1995, grand jury- a federal April On advisement, and the court set taken under in- of Tennessee District in the Western Moss was to file a briefing schedule. possession count of Moss on one dicted by February and the Gov- brief substance, co- grams 79.5 a controlled respond by ernment was to March 1996. base, intent to distribute caine 29,1996; February 841(a)(1). responded Moss Moss of 21 U.S.C. violation respond. The trial Government did not continuances to a number of granted was again adjourned several times while was ar- him retain counsel and allow on the motion awaiting ruling the court’s Moss entered a May raigned on The district court never ren- suppress. retained counsel guilty. Moss’ plea of dered a decision. 22, 1995, and to withdraw on June moved *4 23, on 1995. granted June the motion was later, 29, 1997, year. January on One court on before the district appeared Moss the in brought Moss a motion to dismiss 1995, 5, inform the court July to prejudice for violation of the dictment with attorney and for a new status of his search 25, 1997, February Speedy Trial Act. On counsel. he would retain insisted that hearing to set a date Moss filed a motion 7, July on report to back Moss was told to dismiss. The Govern on the motion 23, 1995, report July until 1995. but did not to the motion on response filed a ment time, he the court that At that he informed 4, 1997, conceding Speedy that the March counsel, but he still yet retained had not more than Trial Act had been violated as accumulated, The court instructed to do so. days desired had 70 non-excludable 14, 1995. August on report Moss to back insisted that the dis but the Government 1995, 17, that he reported Moss August prejudice. On should be without On missal 2, 1997, The new attor- attorney. agreed an court April had retained the district August on the indict an and dismissed ney appearance filed the Government a number of continu- requested and ment without trial. Prior prepare to ances order 30, 1997, Moss was reindicted April On trial, the defense attor- the date set for to of single possession the same count on on an oral motion to withdraw ney made of grams to distribute 79.5 with intent grant- motion was 1995. The October of 21 in violation U.S.C. cocaine ed, was and the Federal Defender’s Office 841(a)(1). initial appear- Moss made an represent Moss. appointed ance, appointed, and Moss was counsel was on 1997. On 8, 1995, released on bond June Moss filed a mo- November On filed a motion to dis- July Moss by the the evidence seized suppress tion prejudice indictment with miss the second County Department, Shelby Sheriffs Act, a Speedy the for violation of the violated the claiming that officers indictment to dismiss the second motion motion announce” rule. The “knock and thg Amendment of but for violation Sixth magistrate judge, was referred to trial, suppress and a motion to to a rescinded when order of reference was probable cause for lack to a different evidence case was transferred rule. the “knock and announce” hearing on violation of evidentiary An judge. district magistrate to a motions were referred January 1996. The set for the motion was report and recommen- judge who issued adjourned several times trial date was The The dis- three motions. denying dation all March 1996. eventually set for objec- court, overruling after Moss’ trict evidentiary hearing The court held tions, adopted the recommendation January motion judge. magistrate conclusion, attorney Moss’ At its found jury to a case was tried ruling The delay the court its requested the district sentencing, At guilty. hearing Moss transcripts until after a two level enhancement judge imposed parties had an prepared and both had been Moss’ base level offense for obstruction of court did carefully consider all of the justice because court believed that factors set in Speedy forth 3162(a)(2). presented Moss evidence at trial which U.S.C. Moss claims that the presented pre- contradicted evidence he dismissal should have been with trial. Moss was sentenced to Speedy 262 months because the Trial Act violation was imprisonment years supervised and 5 re- caused neglect, district court’s own lease. The July entered on was lengthy, and the defendant 20,1998, timely appeal. and Moss filed this years suffered because of two his of incar- ceration. appeal,
On
Moss challenges the
although
district court’s determination that
Speedy
Trial Act enumer
violated,
Speedy
Trial Act had been
ates three factors that
trial courts must
the dismissal of the first indictment should
deciding
consider when
whether to dismiss
Likewise,
prejudice.1
be without
Moss
1)
an
prejudice;
action with or without
claims that the district court should have
2)
offense;
seriousness of the
the facts and
dismissed his second indictment with prej
dismissal;
circumstances that
led to the
violating
udice for
Speedy
Trial Act
3)
impact
reprosecution
on the
and the
Trial Clause of the Sixth
administration of the
Trial Act and
*5
Amendment. Moss also appeals the dis
justice.
on the administration of
18 U.S.C.
trict court’s denial of his
sup
motion to
3162(a).
§
Pierce,
In United States v.
17
press, claiming that
provided
the affidavit
(6th Cir.1994),
F.3d 146
opined,
circuit
in support of the search warrant did not
Congress
“Because
has set forth specific
cause,
probable
establish
and the two level
considered,
factors to be
a district court
sentence
imposed
enhancement
for ob
that does not set forth written findings
justice.
struction of
Because we conclude
regard
to these factors has abused its
that
the district court should have dis
discretion and will be reversed.” 17 F.3d
original
missed the
preju
indictment with
at
(citing
148
Taylor,
United States v.
487
dice, we do not
remaining
determine the
2413,
U.S.
108 S.Ct.
101 L.Ed.2d
appeal.
issues on
(1988)).
297
If those findings are set
forth, however, the appellate court applies
II. ANALYSIS
a “modified
abuse
discretion standard.”
argues
Moss
that
the district
569,
court United
Kottmyer,
States v.
961 F.2d
(6th
Cir.1992).
abused its discretion
determining that
572
Under this modified
the dismissal of
original
standard,
his
indictment
the district court’s factual find
should be
prejudice
without
because the
ings will be
only
reversed
if the findings
1,
1. We
1,
note that Moss could
immediately
Boyle,
not
342 U.S.
72 S.Ct.
2182). case, In this the district court failed to consider impact on Moss’ reasons, For the foregoing RE- we liberty. Moss had been incarcerated for VERSE the of the district court. years, two including time he was await- ing the decision the court on the motion BATCHELDER, Judge, Circuit suppress, yet the court failed to mention concurring. his incarceration impact and its life his circumstances. I concur in both Judge opinion Hood’s Judge Gilman’s
Nor did the concurrence district court ade matter, but I quately separately address write impact reprosecution empha- would have on the size one point. administration of the additional *7 Speedy Trial Act. purpose The of the I wish to make the perfectly record Speedy Trial Act only protect is not to a clear that the district court judge whose defendant’s constitutional speedy to a delay in responding to Moss’ motion to trial, but also to serve the public interest suppress today we rule was excessive is in bringing criminal prompt proceedings. not the same district judge presided who Saltzman, United States v. 984 F.2d over prosecution the of Moss under the (10th Cir.1993) 1090 (citing United States second that, indictment. While it is true Noone, (1st Cir.1990)). v. 913 F.2d 28 in light ruling of our today, the second “government Whenever the whatever —for district court should not have allowed the reasons—falls meeting short of the Act’s prosecution to go forward under the sec- requirements, the justice administration of indictment, ond the true error lies -withthe adversely is affected.” United States v. which, district court inexplicably, allowed Ramirez, (1st Cir.1992) 973 F.2d 39 Moss’ motion suppress un- languish (quoting United States v. Hastings, 847 (1st Cir.1988) many answered on the docket for months F.2d (finding that in clear Speedy violation of the legislative history the Trial Act. Speedy of the Trial Act It is the first demonstrates its district court’s importance in ad omission that vancing public both the private and inter causes us to reach unpalatable result in ests fair and expeditious trial of criminal today. we announce Act is more com Although in GILMAN, concurring Judge, Circuit prosecutor monly implicated when judgment. delay, the of the statute causes the text drug indictment Ordering that a serious that, Congress’s concern clearly expresses solely because with be dismissed bring would not prodding, judges unpalat- highly is procedural a violation of speed. trial with defendants to sufficient rules just But as enforcement able. 3161(h)(8) (requiring dis See 18 U.S.C. in and in search Miranda established Trial Speedy a violation of the missal when the ex- requires cases sometimes seizure court). The Act is attributable to the re prosecu- for the of critical evidence clusion a a that establishes seven sult was statute adequate no other there is tion—because bring to tri ty-day deadline to defendants govern- deterring unacceptable means of al, time ticking and makes this deadline gross violation of mental behavior —the deadline, however, bomb. This is not com requires case Trial Act Speedy may, A inflexible. district court as pletely preju- indictment be dismissed Trial Act necessary, stop Speedy that no other outcome I believe dice. temporarily by entering an order “clock” en- with the effective be consistent would findings that the “ends upon appropriate Act. forcement delay and justice” will be served “outweigh the best justice that the ends of I. the defendant in public interest of the Act, 18 U.S.C. Speedy 3161(h)(8)(A). speedy trial.” 18 U.S.C. to, 3161-3174, response Congress’s §§ was over things, public outrage among other do, may a district court What by dangerous offenders crimes committed however, expire is allow the deadline to facing on other already trial who were attempt to rationalize the and then later pending the were free on bail charges, but by the in delay having required been as considered Congress of what resolution v. justice. See United States terests needlessly protracted pretrial proceedings. (6th Cir.1985) (“A Crane, See, Leppo, 634 F.2d e.g., United States v. violations of judge wipe district cannot out (3d Cir.1980) 101, 104 (discussing the histo have oc they Trial Act after noting ry findings that would by making curred was to principal purposes of the Act’s one delay an justified granting excludable have offenses reduce the risk of recidivist help occurred.”) continuance before bail). also while out on See by defendants (citation omitted); v. Mor United States F.2d Hastings, United States (6th Cir.1993) (“[P]ost an, F.2d 1368 Cir.1988) (“A (1st trial is neces permitted.”). is not hoc rationalization proving the means of sary preserve Moss filed his motion deterrent effect of charge, to maximize the nothing 1995. There November *8 conviction, and to and prosecution the It the motion. or arcane about unusual cases, avoid, period an extended some evidence suppress a motion to simply during by freedom the defendant pretrial case, police the drug predicated in a on flee, crimes, other or may he commit which to “knock and purported failure officers’ witnesses.”) (quoting intimidate Anthony entering before presence announce” their TITLE I HISTORY OF PARTRIDGE, LEGISLATIVE their search warrant. his house to execute (1980)). of Speedy Trial of the Act the mo- signature page, counting Not Speedy Trial purpose Another of the long. pages was five supporting tion’s brief course, protec- further provide was to hearing court conducted its The district constitutionally-guar- for defendants’ tion took the and then January to a trial. See United anteed (6th attor- Moss’s Crane, under advisement. motion 776 F.2d States v. delay fling the Cir.1985). ney asked the court transcript hearing order, of the so that both prejudice. Moss out In its the district could government prepare and file court concluded charges that the against “responses” apparently post-hearing possession grams of 79.5 of crack — Moss— memoranda. The district court agreed cocaine with the intent to it— distribute transcript by that the would be filed Feb were “serious.” That conclusion is correct. 8, 1996, ruary See, and required Moss and the e.g., United v. Wright, States government to file “responses” by 811, (D.C.Cir.1993) their (concluding that February 1, 1996, 1996 and March fifty distribution of or grams more of co- respectively. Why the district court con base, caine distribution of five or more necessary it sidered to receive post-hear base, grams of conspiracy cocaine ing memoranda in order to decide such a possess intent to distribute and/or event, routine any motion is unclear. conspiracy fifty distribute or more Speedy Trial Act itself suggests rather grams of cocaine base are all “serious” strongly that the district court should not offenses for Speedy Trial Act purposes, government have let Moss and the take an they even if are somewhat “common- Moran, entire month to file them. 998 place”). Cf. (6th Cir.1993) (observ F.2d 1370-71 The district goes court’s order then ing that Speedy Trial Act “expressly to state that “the facts and circumstances only excludes period filing ‘from the surrounding present case warrant a the [pretrial] motion through the conclu dismissal prejudice.” without Unfortu- on, hearing sion of the or prompt other nately, the district court did not expand on of, ”) disposition such motion.’ (quoting 18 statement, it provided no explana- 3161(h)(1)(F)); § U.S.C. 18 U.S.C. tion for its failure to rule on Moss’s motion 3161(h)(1)(J) (establishing thirty days as to suppress. Finally, the district court presumptive maximum amount of time concluded that “the reindictment of the during “any which proceeding concerning Defendant hamper will neither the admin- may the defendant” reasonably be “under justice istration of Speedy nor the court.”). advisement Act.” Again, the district court offered no A year passed, and the motion to sup- explanation conclusion, for this apart from press had not still been ruled on. Sched- two sentences in suggested which it uled trial went, dates came and each re- Moss “has shown that length of the scheduled because the motion delay adversely ability affected his to de- was still under advisement. January On trial,” fend result, himself at and that as a day 1997—one year short of a from the Moss “suffers no as a result of date hearing on the motion to sup- delay.” order, however, failed to press filed his motion to dismiss any make mention of the fact that —Moss Moss the indictment pursuant Speedy to the Tri- had been in custody year for over a while government al Act. The responded on his motion to suppress was under advise- March conceding that Speedy ment.
Trial Act required the indictment’s dis-
missal, but requesting that the inevitable II.
dismissal be Dismissal of the indictment is
Despite government’s concession required any violation required Act 3162(a)(2) dis- Trial Act. See 18 U.S.C. (pro *9 missal, the district court delayed ruling on viding specifically that if a defendant “is Moss’s motion to dismiss for over four brought not to trial within seventy- [the 2, Finally, 1997, more weeks. April on day the time by limit] as extended section (which district court 3161(h), had still never ruled the information or indictment on the motion suppress), to entered a two- shall be dismissed on of motion the defen page dant”). order dismissing the indictment with- only question for the court is
435 meaningful nearly review appellate impos- with or is to the dismissal be whether number of courts sible. As a prejudice. without observed, Trial Act as the Speedy
have Speedy I recognize that the Trial required all would have drafted originally either generally prefer Act does not dis See, e.g., to with be dismissals prejudice missal with or dismissal without 976, Caparella, v. States United the remedy, as a and that Su prejudice Cir.1983). (2d as actu- The statute 978-79 specifically Court has admonished preme however, enacted, dismissal makes ally prejudice without is not a “[dismissal that demonstrating an prejudice option, without toothless because “it forces sanction” any particu- intend “Congress did not that if to obtain a new indictment Government pre- serve of dismissal to as type lar reprosecute, exposes to and it it decides Trial Act remedy Speedy for a sumptive of prosecution dismissal statute Taylor, 487 v. United States violation.” Taylor, at grounds.” limitations 487 U.S. 2413, 101 L.Ed.2d 108 S.Ct. U.S. But fact 108 2413. that S.Ct. (1988). Instead, Speedy Trial Act 297 expressly provided both Congress courts, to the district the decision leaves suggests strong rather forms of dismissal “the serious- them to consider directing contemplated that there offense; ly Congress that circum- the facts and ness of the in which dismissal going were to be cases led to the dis- of the case which stances only missal; reprosecution prejudice of a with would be reason impact and the truly egregious light option. [the the administration able justice.” Act inexplicable and on administration violation of the under Act] and 3162(a)(2). circumstances, When district I believe present 18 U.S.C. that considers those properly court factors this is one of those cases. not findings factual are its supporting court’s in this case The district erroneous, court’s clearly “the district unacceptable, and more completely opposing of how considerations
judgment later, it is still unex- than three years lightly not be disturbed.” should balance dismissing order the case plained. Its at Taylor, 487 U.S. S.Ct. legal recites the correct prejudice without Nevertheless, are “discretionary choices standard, apply then does little to but ‘inclination, to its a court’s but not left to standard, is, to that it facts of this case guid- its is to be judgment; and therefore, not entitled to the deference ” Id. at legal principles.’ ed sound otherwise be due. might which it (quoting Paper Albemarle 108 S.Ct. opinion states though Even the court’s 95 S.Ct. Moody, v. U.S. Co. that does not set that “a district court (1975) (quoting Unit- L.Ed.2d 280 regard with to these findings forth written (C.C.Va. Burr, v. 25 F.Cas. ed States and will discretion factors has its abused C.J.))). 1807) (Marshall, Indeed, in order reversed,” (quoting United Op. at 431 be Act is to ensure (6th Cir.1994) Pierce, 17 F.3d States preserve effectively, administered 336, 108 S.Ct. Taylor, 487 U.S. at (citing meaningful re- possibility appellate 2413)), our decision I do not understand view, to “care- required district court is Pierce, in court’s decision today, or this or not to fully express its decision whether be- prejudice simply require dismissal guide- in terms of the bar reprosecution not set court has forth cause a district at 343. by Congress.” Id. lines specified findings, or has set forth written written case, the district court’s present In the insufficiently If that are detailed. findings order, part most which for the two-page simply were court problem stating simply consists of bare conclusions sufficiently find- set detailed failed to forth was the why dismissal remedy would ordi- case, ings, the appropriate does appropriate option more to the district court narily be a remand makes with this standard and comply *10 provide findings with instructions to directing the district court to dismiss Fox, See United v. States adequate. are Moss’s indictment with (2d Cir.1986). Instead, I believe indictment
must be dismissed with prejudice because justification
there is no conceivable for the
district court’s complete inactivity while suppress
Moss’s motion to was under ad-
visement, clearly appears and because it “precisely
have been the result of the sort NAGEL, al., Dennis et Plaintiffs- neglect of administrative which Appellants, Trial Act discourage was intended to sanction,” Angelini, United v. States (D.Mass.1982). F.Supp. Even SERVICES, ADM
taking into INC., account the seriousness of the INVESTOR al., Defendants-Appellees. offense with which Moss was et I charged, do not believe that preju- dismissal without 99-3240, Nos. 99-3236 to dice, considering length and lack of 99-3513 to 99-3517. justification case, for the in this give adequate would effect to the mandate United States Court of Appeals, of Congress as set forth in Seventh Circuit. Trial Act. farAs as can be discerned from record, the district court took Moss’s Argued May motion under advisement and Decided June then simply sat on the a year. case for These circumstances call for a dismissal of Rehearing and En Rehearing Banc the indictment with prejudice, and the dis- Denied June 2000.* trict court abused in finding its discretion to the contrary.
III.
I recognize full well the unfortunate iro-
ny of dismissing with prejudice a case
which the defendant was convicted and
sentenced a very substantial term of
incarceration, all in order to enforce a
statute that was in large part enacted
protect the public dangerous from offend-
ers released on bail. But in enacting the
Speedy Trial Congress plain made its
belief that bringing defendants to trial
promptly is essential to the interests of
justice, and that the remedy of dismissal—
and in some cases dismissal preju- necessary
dice—is to carry out its man-
date. I therefore concur in
* Flaum, Hon. Joel M. pate Frank H. petition. Easterbrook in the consideration of the and Hon. partici- Ann Claire Williams did