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