United States v. Stokes, 124 F.3d 39, 1st Cir. (1997)
United States v. Stokes, 124 F.3d 39, 1st Cir. (1997)
United States v. Stokes, 124 F.3d 39, 1st Cir. (1997)
3d 39
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
2
The factual foundation of the case is laid elsewhere, see United States v.
Stokes, 947 F.Supp. 546 (D.Mass.1996); Commonwealth v. Stokes, 38
Mass.App.Ct. 752, 653 N.E.2d 180, review denied, 421 Mass. 1103, 655
N.E.2d 1277 (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 semiautomatic 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.
4
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. 922(g)(1) (1994). Stokes moved to dismiss the federal indictment on
temporally oriented grounds. He averred that the prosecution was 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.
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
2K2.1; USSG 1B1.3(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
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.
10
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. 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, --U.S. ----, 117 S.Ct. 2437, 138 L.Ed.2d 197 (1997).
11
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, --- U.S. ----,
---- - ----, 116 S.Ct. 2035, 2044-45, 135 L.Ed.2d 392 (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.
12
13
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), cert. denied, --- U.S. ----, 118 S.Ct. 126, --- L.Ed.2d ---- (1997).
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 abomination.B. Sentencing Considerations.
14
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.
15
16
17
the guidelines provided leeway for departures); United States v. McCoy, 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.
18
C. Miscellaneous Grounds.
19
20
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.
21
22
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, 102 S.Ct. at 2492. 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, 94 S.Ct. 2098, 210203, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 724-25, 89
S.Ct. 2072, 2079-80, 23 L.Ed.2d 656 (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 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.4
23
24
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).
25
The district court did not explicitly invoke its 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.
27
28
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 applicable
internal procedures in doing so--is not of that genre.
29
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").
30
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, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (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).
31
32
33
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.5
34
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.
35
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 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.
36
III. CONCLUSION
37
38
Reversed.
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, --U.S. ----, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996)
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