ENRIQUE MELGUIZO, PETITIONER V. UNITED STATES OF AMERICA No. 87-551 In The Supreme Court Of The United States October Term, 1987 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States TABLE OF CONTENTS Question Presented Opinion below Jurisdiction Statement Argument Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. A9-A13) is reported at 824 F.2d 370. The opinion of the district court (Pet. App. A1-A5) is unreported. JURISDICTION The judgment of the court of appeals was entered on August 4, 1987. The petition for a writ of certiorari was filed on October 3, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the indictment should have been dismissed with prejudice for a minor violation of the time limitations of the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. STATEMENT Following a jury-waived trial in the United States District Court for the Southern District of Texas, petitioner was convicted on two counts of failing to file a currency transaction report, in violation of 31 U.S.C. 5313 and 5322(a). He was fined $2,500 on each count. He was also assessed $50 on each count pursuant to 18 U.S.C. 3013. The court of appeals affirmed. Petitioner was initially indicted on August 12, 1986. He was arrested, arraigned, and released the following day. The indictment was made public on August 14, 1986, and trial was scheduled for October 6, 1986. On September 23, 1986, a superseding indictment was returned that corrected some technical errors in the original indictment. Petitioner was arraigned on the superseding indictment on October 2, 1986. Trial was rescheduled for November 5, 1986. On October 3, 1986, the government filed a motion to dismiss the original indictment, which was granted that same day. On October 31, 1986, petitioner moved to dismiss the superseding indictment, alleging a violation of the Speedy Trial Act of 1974, 18 U.S.C. (& Supp. IV) 3161 et seq. The district court granted petitioner's motion and dismissed the indictment without prejudice (Pet. App. A1-A5). In determining whether to dismiss the indictment with or without prejudice, the district court weighed the factors set forth in the Act (18 U.S.C. 3162(a)(2)). First, the court found that the offenses were serious because they exposed petitioner to a possible maximum sentence of ten years' imprisonment. Next, in assessing the circumstances of the case that led to the violation, the court found that neither the magistrate nor the Assistant United States Attorney who attended petitioner's arraignment on the superseding indictment was aware that the November trial date was beyond the 70-day time limitation of the Act. Accordingly, the court found that 'the delay can thus be characterized as one of administrative neglect or of negligence on the part of the United States Attorney's office" (Pet. App. A3). Nevertheless, the court held that this isolated instance of negligence was not a sufficient ground for barring reindictment and reprosecution. As the court explained (Pet. App. A4), "harsh application of the Speedy Trial Act in a single negligence scenario will have no prophylactic effect." Consequently, the court concluded that that factor weighed in favor of dismissal without prejudice. Finally, the court noted that the delay, which was not lengthy, did not prejudice petitioner. Ibid. A new indictment charging the same two offenses was returned on December 2, 1986. Trial began on February 6, and petitioner was convicted and sentenced (Pet. App. A6-A8). The court of appeals affirmed (Pet. App. A9-A13). The court rejected petitioner's claim that the superseding indictment in the original prosecution should have been dismissed with prejudice, thereby barring reindictment and trial. The court agreed with the district court that the charged offenses were serious in light of the potential ten-year prison term (Pet. App. A12). And the court agreed that the cause of the delay was prosecutorial negligence (ibid.). The court held, however, that petitioner bore the burden of proving "whether the government regularly or frequently fails to meet the time limits (of the Speedy Trial Act), and whether the government has failed to meet the deadlines more than once with respect to the same defendant" (id. at A13). Because petitioner did not show that the government's oversight was "regular, frequent, or repetitive," the court concurred with the district court that dismissal with prejudice would not have a "prophylactic effect." Therefore, the court of appeals agreed that "the facts surrounding the delay weighed in favor of dismissal without prejudice" (ibid.). The court also concluded that the final factor in the statutory balancing test favored dismissal without prejudice. Because the delay was short (only nine days by the court's count) and because petitioner was not prejudiced by the delay, petitioner's reprosecution had "little, if any, adverse impact on the administration of justice and the administration of the (Speedy Trial Act)" (Pet. App.. at A13). For these reasons, the court of appeals held that the district court had not abused its discretion in dismissing without prejudice (id. at A10-A11). ARGUMENT This case presents a question similar to the question now pending before the Court in United States v. Taylor, No. 87-573 (filed Oct. 7, 1987). In both cases, the issue is whether the indictment should have been dismissed with prejudice for a minimal, nonprejudicial violation of the Speedy Trial Act. In both cases, the 70-day time limit of the Act was exceeded by less than ten days (eight days in Taylor). /1/ In both cases, the delay did not impair the defendant's ability to defend against the charges. Nor did the delay in either case affect the defendant's liberty. /2/ And in both cases, the government's oversight that led to the violation was an isolated incident. Although there are some factual differences between the two cases, /3/ the cases are sufficiently similar that the Court may wish to hold this case pending its decision in Taylor, and then dispose of this case as appropriate in light of the Court's disposition of Taylor. /4/ None of the individual arguments advanced by petitioner has merit, however, and none independently warrants review by this Court. 1. First, petitioner argues that both courts below erred in holding that he has the burden of proving facts in support of his motion to dismiss the indictment with prejudice. The Act expressly so provides. Section 3162(a)(2) states in relevant part (emphasis added): If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion but the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3) (which pertains to unavailable witnesses and defendants). 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. As the plain language makes clear, the defendant bears the burden of proof with respect to his entire motion. In this case, for instance, petitioner not only sought dismissal of the indictment, he sought dismissal with prejudice. He thus bore the burden of proving that he was entitled to that relief. Had Congress intended to shift a burden to the government once a violation is established, Congress would have done so explicitly, as it did with respect to the unavailable witness exclusion. There is no conflict among the circuits on this issue. United States v. Caparella, 716 F.2d 976 (2d Cir. 1983), on which petitioner relies, does not address the question of burden of proof. Instead, it holds that there is no presumption in favor of one form of dismissal over the other (id. at 978-980). United States v. Russo, 741 F.2d 1264 (11th Cir. 1984), also cited by petitioner, likewise does not address the burden-of-proof issue. In Russo, the court held that once it is established (presumably by the defendant) that the cause of the violation was the government's negligence, that factor will usually favor dismissal with prejudice if the delay is "substantial" (id. at 1267-1268). On the other hand, the court also stated that where, as here, the delay is minimal, "mere negligence or inadvertence will not automatically call for dismissal with prejudice" (id. at 1267). Consequently, there is no reason to believe that the Eleventh Circuit would have analyzed the instant case differently than the court below. 2. Petitioner also argues that the decision below is at odds with Caparella because it weighted the negligence factor as favoring dismissal without prejudice. The two cases are easily reconciled, however, since each case turns on its distinctly different facts. In the instant case, the government's oversight created only a slight delay; it was inadvertent; and it was not "regular, frequent, or repetitive." Moreover, in the instant case the blame for the violation must be shared equally by all parties who were present when the magistrate selected the untimely trial date in open court. Neither the prosecutor nor the magistrate realized the error, and defense counsel silently acquiesced in the magistrate's selection. In these circumstances, the court of appeals concluded that dismissal without prejudice was a sufficiently harsh sanction to impose upon the government. In Caparella, by contrast, the government's neglect was the sole cause of the violation (716 F.2d at 980). Because of the government's "careless oversight," a complaint was outstanding against the defendant for 51 days following his arrest, although the Act requires the return of an indictment or an information within 30 days of arrest. 18 U.S.C. 3161(b). Consequently, the government's negligence created a delay that was substantially longer than the delay in this case. In these circumstances, the court weighed the negligence factor against the government. Because the offense in Caparella was not serious, the court held that the balancing test favored dismissal with prejudice. In any event, Caparella is not the Second Circuit's latest word on the weight to be given governmental negligence in the balancing test. Subsequently, the United States v. Simmons, 786 F.2d 479, 485-486 (1986), rev'd on other grounds on reh'g, 812 F.2d 818 (1987), the Second Circuit held that the government's negligent noncompliance with the time limits of the Act was a neutral factor in the balancing test. Because the offense in Simmons was serious, and because the delay was relatively brief, the court ordered that the dismissal of the indictment be without prejudice (ibid.). Consequently, there is no hard and fast rule in the Second Circuit for weighing prosecutorial negligence; rather than assessing the impact of negligence in a vacuum, its effect on the balancing test turns on the particular facts and circumstances of each case. That is essentially the approach adopted by the court below (Pet. App. A13). Therefore, the Second and Fifth Circuits are not in conflict on this point. 3. Finally, there is no conflict on the question whether the failure to file a currency transaction report is a serious offense. Aside from the court below, no other court of appeals has decided the question. Certainly, Congress's evaluation of the gravity of an offense is reflected in its choice of a maximum penalty. In concluding that the crimes charged in this case were serious, the court below appropriately considered the fact that petitioner was exposed to a total sentence of ten years' imprisonment on the two counts at issue here. /5/ CONCLUSION The petition for a writ of certiorari should be held pending resolution of United States v. Taylor, No. 87-573, and then disposed of in light of that resolution. Respectfully submitted, CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General PATTY MERKAMP STEMLER Attorney DECEMBER 1987 /1/ Although the court of appeals stated that the 70-day limit was exceeded by nine days in this case, in fact it was no more than seven. The court failed to exclude the day of petitioner's arraignment on the superseding indictment. See 18 U.S.C. 3161(h)(1) (excluding any period of delay resulting from other proceedings concerning the defendant). And the court failed to exclude the day on which the government's motion to dismiss the first indictment was pending. See 18 U.S.C. 3161(h)(1)(F) (excluding delay created by "any pretrial motion"); Henderson v. United States, 476 U.S. 321 (1986). /2/ In this case, petitioner was free on bond throughout the pretrial proceedings. In Taylor, the defendant was incarcerated during the period in question on another charge for which there was no speedy trial violation. /3/ The offenses are different in the two cases, although in both cases they are serious. Taylor was charged with violations of the federal narcotics laws, whereas petitioner was charged with failing to file currency transaction reports. The cases also differ with regard to the circumstances leading to the Speedy Trial Act violation. In the instant case, petitioner played no part in the violation other than failing to object when the magistrate scheduled trial beyond the 70th speedy trial day. By contrast, in Taylor the defendant was primarily responsible for the violation. Taylor fled on the eve of trial, which was scheduled to begin on the last permissible date for commencing trial under the Act. When he was captured in another state several months later, only one day remained within which to bring him to trial. The government violated the Act when the United States Marshal took longer than the Speedy Trial Act allows to return Taylor to the charging district. This slight delay by the Marshal, however, paled in comparison to the extraordinary delay created by Taylor's flight. Consequently, in Taylor, the facts leading to the violation overwhelmingly favored dismissal without prejudice. /4/ If the court decides to deny certiorari or to affirm in Taylor because, contrary to our submission, the court of appeals correctly concluded that a district court's discretion under the Speedy Trial Act is so broad that there was no abuse of discretion in dismissing that case with prejudice, certiorari should also be denied here, since, under that rationale, the district court's discretion would certainly be broad enough to permit the court to conclude that the dismissal in this case should be without prejudice. /5/ We recognize, of course that failing to file currency transaction reports is less serious than some crimes of violence or narcotics offenses. Nevertheless, these reports are used to track the profits from narcotics trafficking and other crimes. Because the failure to file these reports can impede enforcement of our narcotics laws, the courts below were certainly justified in concluding that the first factor of the balancing test favored dismissal without prejudice.