FILED
United States Court of Appeals
Tenth Circuit
April 12, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 09-2163
JOHNNY BEGAY,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:CR–07-01556-MCA)
David N. Williams, Assistant United States Attorney (Gregory J. Fouratt, United
States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff-
Appellant.
Margaret A. Katze, Assistant Federal Public Defender, Office of Federal Public
Defender, Albuquerque, New Mexico, for Defendant-Appellee.
Before BRISCOE, McWILLIAMS, and TYMKOVICH, Circuit Judges.
BRISCOE, Circuit Judge.
In this interlocutory appeal, the government challenges the district court’s
order dismissing with prejudice, pursuant to Fed. R. Crim. P. 48(b)(1), a
superseding indictment charging defendant Johnny Begay with multiple counts of
aggravated sexual abuse of a child in Indian Country, and directing the parties to
proceed to trial on the original indictment, which charged Begay with a single
count of aggravated sexual abuse of a child in Indian Country. Exercising
jurisdiction pursuant to 18 U.S.C. § 3731, we reverse the decision of the district
court and remand for further proceedings on the superseding indictment.
I
On July 25, 2007, a federal grand jury indicted Begay on one count of
aggravated sexual abuse of a child in Indian County, in violation of 18 U.S.C. §§
1153, 2241(c) and 2246(3). The indictment alleged that
[b]etween on or about March 1, 2006, and April 30, 2006, in Indian
Country, in San Juan County, in the State and District of New
Mexico, the defendant, JOHNNY BEGAY, an Indian, knowingly
engaged and attempted to engage in sexual contact with Jane Doe, an
Indian child who had not attained the age of twelve years, and the
sexual act consistent of intentional penetration of the genital opening
of Jane Doe by a hand or finger or by any object with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person.
App., Case No. 08-2149, at 7.
In preparation for trial, the government filed a motion in limine seeking
approval from the district court to introduce at trial, pursuant to Rule 414 of the
Federal Rules of Evidence 1, evidence of three categories of prior sexual
1
Rule 414, entitled “Evidence of Similar Crimes in Child Molestation
Cases,” provides, in pertinent part, that “[i]n a criminal case in which the
defendant is accused of an offense of child molestation, evidence of the
defendant’s commission of another offense or offenses of child molestation is
(continued...)
2
molestation committed by Begay. The first category of proposed evidence
involved testimony from the victim identified in the indictment, Jane Doe,
regarding “previous sexual assaults” committed against her by Begay. Id. at 9.
More specifically, the government indicated, Jane Doe would testify that Begay
“assaulted her over twenty times” “when she was between the ages of 7 and 11.”
Id. The second category of proposed evidence involved testimony from Jane Doe
regarding Begay’s molestation of her younger sister, whom the government
identified as Jane Doe #2. According to the government, Jane Doe would testify
“that the defendant assaulted Jane Doe #2 on at least one occasion.” Id. The
third category of proposed evidence involved testimony from the mother of Jane
Doe and Jane Doe #2 regarding Begay’s molestation of her when she “was 11-12
years old.” Id. The government indicated that the mother would testify that
Begay “assaulted her three or four times.” Id. at 10. The government argued that
“[t]he manner of sexual assault in all previous instances” was “similar to the
charged offense, in that the defendant sexually assaulted the victims at home,
during the night while the victims were in bed and no other adults were present.”
Id.
Begay opposed the government’s motion, arguing that “[a]ll the accusations
[we]re extremely prejudicial,” and that “[i]t [wa]s very likely they w[ould]
1
(...continued)
admissible, and may be considered for its bearing on any matter to which it is
relevant.” Fed. R. Evid. 414(a).
3
contribute to an improperly-based verdict, distract the jury from the central issue
of the truth of the indictment charge, and consume way too much time at trial.”
Id. at 15.
On July 2, 2008, the district court held a hearing on the government’s
motion, during which both Jane Doe and her mother testified. The following day,
the district court issued a memorandum opinion and order denying the
government’s motion. Although the district court agreed with the government
that the proposed evidence was relevant and admissible under Rule 414, it
nevertheless concluded that each of the three categories of proffered evidence
were more prejudicial than probative.
Immediately following issuance of the district court’s order, the
government filed an interlocutory appeal challenging that order. This court, in an
unpublished order and judgment issued on February 9, 2009, affirmed the district
court’s order. United States v. Begay, No. 08-2149, 2009 WL 30828 (10th Cir.
Feb. 9, 2009). This court’s mandate issued on March 3, 2009.
On April 9, 2009, a federal grand jury returned a superseding indictment
charging Begay with seven counts of aggravated sexual abuse of a child in Indian
County, in violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2)(c). All seven
counts involved the same victim as the original indictment, Jane Doe, and all
seven counts alleged that Begay “intentionally engaged in the penetration,
however slight, of the [victim’s] genital opening . . . by a hand or finger or by any
4
object with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.” 2 App. at 31-32. The counts differed only in the
dates of the alleged acts: (1) Count 1 allegedly occurred “between May 1, 2006,
and May 31, 2006,” id. at 31; (2) Count 2 allegedly occurred “between March 1,
2006, and April 20, 2006,” 3 id.; (3) Count 3 allegedly occurred “between January
29, 2006, and February 2, 2006,” id. at 32; (4) Count 4 allegedly occurred
“between January 29, 2006, and February 2, 2006,” id.; (5) Count 5 allegedly
occurred “between June 28, 2004, and July 5, 2004,” id. at 33; (6) Count 6
allegedly occurred “between December 1, 2003, and December 31, 2003,” id.; and
(7) Count 7 allegedly occurred “between August 1, 2000, and August 31, 2000,”
id.
On April 27, 2009, Begay moved to dismiss the superseding indictment
“with prejudice . . . on the grounds that the government engaged in excessive
delay in obtaining that indictment, warranting dismissal by virtue of the Due
Process Clause and Federal Rule of Criminal Procedure 48(b)(1).” Id. at 35.
According to Begay, “[t]he superseding indictment [wa]s a blatant attempt to
circumvent [the district court’s] ruling . . . that the government would not be
allowed to introduce evidence of [his] alleged sexual contact with Jane Doe
2
The superseding indictment did not include any counts regarding any
alleged molestation by Begay of Jane Doe’s sister or mother.
3
Count 2 represents the count from the original indictment, albeit with a
slightly narrowed time frame.
5
outside the two-month time period alleged in the original indictment.” Id. at 36.
Begay further argued that “[t]he government could have brought the superseding-
indictment charges at the same time as it brought the single charge in the original
indictment,” but that “[i]t delayed doing so for more than a year and a half to
garner a tactical advantage in its prosecution of [him].” Id. Lastly, Begay argued
that he was prejudiced by the government’s tactics:
With the superseding indictment in place, . . . Begay now faces
the same unfairly prejudicial circumstances he faced when the
government sought to introduce Jane Doe’s allegations that . . .
Begay sexually assaulted her over the course of six years on multiple
occasions. Cumulative charges may very well lead the jury to
believe . . . Begay is guilty of something. The very real danger
exists that the piling on of allegations upon allegations will
overwhelm the jury and result in an unwarranted guilty verdict on
one or more of the counts. The government will then doubtless
attempt to obtain enhancement of . . . Begay’s sentence by virtue of
the conduct alleged in any acquitted counts. In addition, while not
by itself substantial prejudice, the inevitably fading memories of the
defense witnesses regarding the allegations that reach back to 2000,
also impedes . . . Begay’s defense. The more-than-two-and-half-year
[sic] delay has enabled the government to create this situation that
has substantially increased the chance of a guilty verdict, despite . . .
Begay’s innocence.
Id. at 44.
The district court held a hearing on Begay’s motion on June 8, 2009, and
then took the matter under advisement. On June 18, 2009, the district court
issued a memorandum opinion and order granting Begay’s motion. The district
court noted that the government had conceded at the hearing on Begay’s motion
“that the information underlying the allegations that ma[d]e up the seven counts
6
of the [superseding indictment] [wa]s information that was known to it as early as
September 14, 2006, the date of Jane Doe’s forensic interview.” Id. at 83. In
turn, the district court concluded that
common sense dictate[d] that if the government believed it had
evidence to support the additional six counts that appear in the
[superseding indictment], it would have charged all seven counts in
the original [indictment] instead of seeking the admission of these
alleged prior instances of sexual abuse under Rule 414, and then
recasting them as charged offenses only after an unsuccessful appeal.
Id. at 84.
Turning to Begay’s legal arguments, the district court first concluded that,
notwithstanding its findings regarding the government’s conduct, Begay had
failed to show “that he ha[d] suffered actual prejudice from the [government’s]
delay, such that the [superseding indictment] [could] be dismissed on due process
grounds.” Id. at 85. However, the district court concluded “that because the
government ha[d] engaged in unnecessary delay in presenting to a grand jury the
charges comprising the [superseding indictment], the [superseding indictment
should] be dismissed pursuant to Rule 48(b)(1) of the Federal Rules of Criminal
Procedure, as [it] [wa]s simply not persuaded the government’s reasons for the
delay [we]re valid.” Id. at 86 (citing United States v. Goodson, 204 F.3d 508,
513 (4th Cir. 2000)). In support of this conclusion, the district court stated it was
“not persuaded that investigative delay [wa]s what kept the government from
superseding the indictment until after it experienced an unsuccessful appeal;
7
rather, [it] believe[d] that the delay was undertaken to gain a tactical advantage
over . . . Begay.” Id. at 87. In other words, the district court stated it was “not
convinced that the government delayed superseding the [indictment] for any
reason other than to preserve for itself a weapon to use against . . . Begay in the
event its motion to introduce evidence of alleged prior instances of sexual abuse,
and the subsequent appeal from the denial thereof, fell short, which is precisely
what happened.” Id. at 89.
Based upon its findings and conclusions, the district court dismissed the
superseding indictment “pursuant to Rule 48(b)(1) of the Federal Rules of
Criminal Procedure” and directed that the trial “proceed upon the original one-
count [indictment] of July 25, 2007.” Id.
II
The government has filed this interlocutory appeal to challenge the district
court’s dismissal of the superseding indictment under Federal Rule of Criminal
Procedure 48(b)(1). That Rule provides, in pertinent part, that “[t]he court may
dismiss an indictment . . . if unnecessary delay occurs in . . . presenting a charge
to a grand jury . . . .” Fed. R. Crim. P. 48(b)(1). “A dismissal under Rule 48(b),
whether it be on motion or sua sponte, is a matter addressed to the sound
discretion of the trial court . . . .” United States v. Barney, 550 F.2d 1251, 1254
8
(10th Cir. 1977). 4 Consequently, we review the district court’s decision in this
case for an abuse of discretion. Id.
The phrase “unnecessary delay,” as used in Rule 48(b), is not specifically
defined in Rule 48 or elsewhere in the Federal Rules of Criminal Procedure. But
the Advisory Committee Notes accompanying the adoption of Rule 48 are
instructive in helping us understand the meaning of this phrase. Those Notes
indicate that Rule 48(b) was intended as “a restatement of the inherent power of
the court to dismiss a case for want of prosecution.” 1944 Advisory Committee
Notes on Adopting Rule 48 (emphasis added). In other words, the Advisory
Committee did not intend Rule 48(b) as an all-encompassing grant to district
courts of supervisory authority over the prosecution of criminal cases, but rather
as a recognition of a district court’s power to dismiss a case that the government
has failed to prosecute in a timely manner. Cf. Carlisle v. United States, 517 U.S.
416, 426 (1996) (“Whatever the scope of this ‘inherent power,’ however, it does
not include the power to develop rules that circumvent or conflict with the
Federal Rules of Criminal Procedure.”). Construed in this manner, Rule 48(b)(1)
is consistent with the well established rule that, “[a]bsent prejudice to the
defendant, a superseding indictment may be filed at any time before trial,” United
4
“[M]uch of the case law applying Rule 48 standards predates the Speedy
Trial Act,” which was “adopted in 1975[, became] fully effective in 1980, [and]
created a rather comprehensive set of rules to regulate delay in federal
prosecutions.” 3B Charles Alan Wright, Nancy J. King, and Susan R. Klein,
Federal Practice and Procedure, § 814 at 343 (3d ed. 2004).
9
States v. Wilks, 629 F.2d 669, 672 (10th Cir. 1980); see United States v. Trahan,
333 F. App’x 818, 819, 2009 WL 1576839 at *1 (5th Cir. June 5, 2009)
(concluding that the discretion afforded a district court by Rule 48(b) is
necessarily “constrained by long-standing authority holding that a superseding
indictment may be filed at any time before trial on the merits.”), and is
appropriately deferential to the “core executive constitutional function” of
designing and pursuing criminal prosecutions. United States v. Armstrong, 517
U.S. 456, 465 (1996).
In purporting to exercise its authority under Rule 48(b)(1), the district court
in this case determined that the government had delayed in obtaining the
superseding indictment against Begay because “the information underlying the
allegations” of the superseding indictment “was known to [the government] as
early as September 14, 2006, the date of Jane Doe’s forensic interview.” App. at
83. The district court further found “that the government delayed obtaining the
[superseding indictment] in an effort to gain a tactical advantage over . . . Begay,”
i.e., “it was not until” the government’s motion in limine was denied by the
district court and that ruling affirmed on appeal “that the government superseded
the indictment, recasting at least some of th[e] alleged prior instances as charged
offenses.” Id. at 82. Although the district court found that Begay failed to
establish “that he ha[d] suffered actual prejudice from the [government’s] delay”
in filing the superseding indictment, id. at 85, it nevertheless dismissed the
10
superseding indictment with prejudice because it was “not persuaded the
government’s reasons for the delay [we]re valid,” id. at 86.
Accepting the district court’s factual findings as correct, we conclude the
district court abused the discretion afforded to it under Rule 48(b)(1) in
dismissing the superseding indictment. Although it is true that the government
“delayed” seeking the superseding indictment in the sense that it had been privy
for some time to the evidence underlying each count of the superseding
indictment, nothing in the record establishes that this was the type of
“unnecessary delay” envisioned by Rule 48(b)(1). To the contrary, the record
firmly establishes that the government has aggressively, but fairly, pursued the
prosecution of Begay.
Further, the district court offered no authority for its conclusion that it was
improper for the government to respond in a tactical manner after its unsuccessful
interlocutory challenge to the district court’s denial of its motion in limine. And,
indeed, the case law clearly supports a contrary conclusion. “Prosecutorial
charging decisions,” “rarely simple” in nature, “are not readily susceptible to the
kind of analysis the courts are competent to undertake . . . .” Town of Newton v.
Rumery, 480 U.S. 386, 396 (1987) (internal quotation marks omitted).
Consequently, the Supreme Court has repeatedly emphasized that courts are not
“permit[ted] . . . to abort criminal prosecutions simply because they disagree with
a prosecutor’s judgment as to when to seek an indictment,” or “to impose on law
11
enforcement officials [their] personal and private notions of fairness . . . .”
United States v. Lovasco, 431 U.S. 783, 790 (1977) (internal quotation marks
omitted). Likewise, we have emphasized that it is the prerogative of “the
executive branch to design a criminal prosecution in the way it deems most
prudent.” United States v. Schneider, 594 F.3d 1219, 1226 (10th Cir. 2010).
To be sure, dismissal of a superseding indictment can be based upon
prosecutorial vindictiveness in seeking heightened charges. 5 See United States v.
Wall, 37 F.3d 1443, 1447 (10th Cir. 1994) (“In a claim of prosecutorial
vindictiveness, the defendant bears the burden of proving either (1) actual
vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise
to a presumption of vindictiveness.”) (internal quotation marks omitted); see also
United States v. Barner, 441 F.3d 1310, 1316 (11th Cir. 2006) (holding that
“proof of a prosecutorial decision to increase charges after a defendant has
exercised a legal right does not alone give rise to a presumption [of
vindictiveness] in the pretrial context.”) (internal quotation marks omitted;
emphasis in original). At no point in this case, however, did Begay allege, nor
did the district court find, that the government acted vindictively in obtaining the
superseding indictment. Thus, the district court’s order of dismissal was clearly
not grounded on prosecutorial vindictiveness.
5
Proof of vindictiveness in obtaining a superseding indictment would
establish a due process violation. See United States v. Goodwin, 457 U.S. 368,
384 (1982).
12
In sum, it was entirely proper for the government, absent prosecutorial
vindictiveness or prejudice to Begay, to alter its tactics in response to the rulings
on its proffered Rule 414 evidence and seek a superseding indictment that
included additional charges of molestation.
The order of the district court dismissing the superseding indictment with
prejudice is REVERSED and the case REMANDED for further proceedings on
the superseding indictment.
13