December 30, 1994
[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 94-1193
UNITED STATES,
Appellee,
v.
RICHARD GUYON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Stephen J. Weymouth for appellant.
Kevin J. Cloherty, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
STAHL, Circuit Judge. Defendant-appellant Richard
STAHL, Circuit Judge.
Guyon appeals his conviction for failure to appear at trial
in violation of 18 U.S.C. 3146(a)(1). We affirm.
I.
I.
BACKGROUND
BACKGROUND
On June 27, 1991, on the fourth day of his trial on
charges of bank fraud in the United States District Court for
the District of Massachusetts, Guyon failed to appear. The
district court issued a bench warrant for his arrest, and
Guyon was apprehended approximately two weeks later in Idaho.
Guyon's trial continued without his presence, he was
convicted in absentia on the bank-fraud charges, and on
December 10, 1991, was sentenced to thirty-months
imprisonment. His sentence included a two-level enhancement
for obstruction of justice attributed primarily to a finding
that Guyon had perjured himself and only incidently to
Guyon's flight during trial.
After his arrest in Idaho, Guyon faced additional
bank-fraud charges in the United States District Court for
the Eastern District of Virginia. On November 4, 1991, he
was convicted on these charges and on January 24, 1992, he
was sentenced to thirty-seven months imprisonment, to run
concurrently with the sentence imposed in the Massachusetts
bank-fraud case. The Virginia sentence also included a two-
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level enhancement for obstruction of justice due to Guyon's
flight during the Massachusetts bank-fraud trial.
On May 19, 1993, counsel was appointed to represent
Guyon in his appeal of the Massachusetts bank-fraud
conviction.1 Two days later, on May 21, 1993, nearly two
years after his flight from the Massachusetts bank-fraud
trial, the grand jury returned an indictment against Guyon
for failure to appear at that trial in violation of 18 U.S.C.
3146(a)(1).
Following the indictment, Guyon filed two separate
motions, each entitled "Motion to Dismiss Indictment." The
first sought dismissal on the grounds of unnecessary delay
pursuant to Fed. R. Crim. P. 48(b) ("Rule 48(b)") and the due
process clause of the Fifth Amendment, while the second
relied on the ground of vindictive and malicious prosecution.
After a hearing, the district court denied both motions,
reasoning that "while the pre-indictment delay was
unquestionably long and the government's justification for it
weak," Guyon had nevertheless suffered no prejudice because
of it. The court also held that a presumption of vindictive
prosecution did not exist where the additional charges
brought by the government were unrelated to the substance of
the underlying (bank-fraud) charge.
1. This conviction was affirmed in United States v. Guyon,
27 F.3d 723 (1st Cir. 1994).
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After a bench trial, Guyon was convicted on the
failure to appear charge and was sentenced to three years
probation with that sentence to commence after completion of
the Virginia bank-fraud sentence, which Guyon was then
serving. The sentence also provided that he was to spend the
first six months of his probationary period at a Community
Treatment Center ("CTC"). This appeal followed.
II.
II.
DISCUSSION
DISCUSSION
Guyon now argues that the district court erred in
denying his motions to dismiss on the grounds of (1) pre-
indictment delay pursuant to Rule 48(b)2 and (2) vindictive
prosecution. Guyon also claims that the district court erred
in its application of the Sentencing Guidelines when
determining his sentence for the failure-to-appear
conviction. We address each argument in turn.
A. Rule 48(b)
The district court refused to dismiss the
indictment based on pre-indictment delay because it reasoned
that Guyon had not been prejudiced by that delay. When
reviewing a court's refusal to dismiss pursuant to Rule
48(b), we note that it is within the discretion of the trial
court to invoke this rule, and its decision "will be reversed
2. On appeal, Guyon does not pursue the argument that the
delay violated his Fifth Amendment due process rights.
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only for abuse of discretion." United States v. Mitchell,
723 F.2d 1040, 1050 (1st Cir. 1983).
Guyon argues that the ruling of the district court
amounted to an abuse of discretion in that he was, in fact,
prejudiced by the timing of the failure-to-appear conviction
and sentencing. He points out that his sentence for failure
to appear includes six months at a CTC to commence after the
completion of the Virginia bank-fraud sentence. He argues
that this additional penalty exceeds the statutory maximum to
which he is subject under the Sentencing Guidelines. Guyon
also claims that had he been tried and sentenced without the
inordinate ordered delay on the failure-to-appear charge, his
sentence might have been imposed consecutively to the
Massachusetts bank-fraud sentence and concurrently with the
Virginia sentence. That result would have enabled Guyon to
avoid the additional six months to be served at the CTC. We
are not persuaded.
Rule 48(b) allows a court to dismiss a case for
failure to prosecute.3 A Rule 48(b) right attaches after a
3. Fed. R. Crim. P. 48(b) provides:
By Court. If there is unnecessary delay
By Court.
in presenting the charge to a grand jury
or in filing an information against a
defendant who has been held to answer to
the district court, or if there is
unnecessary delay in bringing a defendant
to trial, the court may dismiss the
indictment, information or complaint.
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defendant's arrest. United States v. Marion, 404 U.S. 307,
319 (1971); see also United States v. McCoy, 977 F.2d 706,
712 n.6 (1st Cir. 1992). When a court evaluates a claim of
unnecessary delay pursuant to Rule 48(b), it may consider the
length of and reason for the delay, the defendant's assertion
of his right, and the prejudice to the defendant. United
States v. Rowbotham, 430 F. Supp. 1254, 1257 (D. Mass. 1977)
(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). See also
United States v. Becker, 585 F.2d 703, 708 (4th Cir. 1978),
cert. denied, 439 U.S. 1080 (1979).
In this case, the district court found a long and
essentially unjustified delay. However, in reaching its
decision to deny the motion to dismiss, the district court
found that "no witnesses have become unavailable or forgetful
and the defendant has not spent and will not spend additional
time in prison" due to the delay.
Guyon argues prejudice because the Virginia bank-
fraud sentence was already the maximum to which he was
subject and the six months to be served at the CTC should not
have been imposed as an additional penalty. However, this
argument does not identify any prejudice stemming from the
government's delay in returning an indictment against Guyon
for his failure to appear. It fails to show prejudice
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appropriate to a Rule 48(b) dismissal, but rather goes to
whether the Sentencing Guidelines were properly applied.4
Guyon also argues that he was prejudiced by the
delay because the court could have imposed the failure-to-
appear sentence consecutively to the Massachusetts sentence
instead of consecutively to the Virginia sentence. We find
this argument unpersuasive because regardless of when the
sentencing for failure to appear could have occurred, it was
wholly within the discretion of the sentencing court to
require that the failure-to-appear sentence commence after
the Virginia bank-fraud sentence instead of after the
Massachusetts sentence.5
Accordingly, we find that the district court did
not abuse its discretion denying his motion to dismiss by
holding that Guyon was not prejudiced by the delay.6
B. Vindictive Prosecution
4. We discuss the application of the Sentencing Guidelines
at part C., infra.
C.
5. 18 U.S.C. 3146(b) mandates that the sentence for
failure to appear be imposed consecutively to any other
sentence being served. We also note that Guyon had been
convicted in both districts before being sentenced in either.
6. Given the straightforward resolution of the prejudice
claim, we need not decide whether Rule 48(b) applies to one
who during the period of delay is being held on some other
charge or sentence and not because of an arrest on the charge
associated with the delay. Cf. Acha v. United States, 910
F.2d 28, 30 (1st Cir. 1990).
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The district court also refused to dismiss Guyon's
indictment on the basis of vindictive and malicious
prosecution. Because the facts are not in dispute, we review
only the district court's conclusion of law that a
presumption of vindictiveness does not exist. "Claimed
errors of law are, of course, reviewed de novo." Williams v.
Poulos, 11 F.3d 271, 278 (1st Cir. 1993).
Guyon has not provided any actual evidence of
vindictiveness, but instead has attempted to "convince a
court that the circumstances show there is a sufficient
`likelihood of vindictiveness' to warrant a presumption of
vindictiveness." United States v. Marrapese, 826 F.2d 145,
147 (1st Cir.), cert. denied, 484 U.S. 944 (1987) (citation
omitted). He alleges that the government inexplicably waited
nearly two years to seek an indictment for failure to appear
and then returned the indictment only two days after Guyon
had secured counsel to appeal his Massachusetts bank-fraud
conviction. Guyon argues that this turn of events created a
presumption of vindictive prosecution and that the district
court erred by not dismissing the indictment on that ground.
We do not agree.
We need not decide whether a presumption of
vindictiveness can exist where the additional charge brought
against a defendant is unrelated to the substance of the
underlying offense because the facts of this case do not
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reflect a "reasonable likelihood of vindictiveness." While
the factual setting of this case is unique, this Court and
others have addressed the general issue of presumptions of
prosecutorial vindictiveness and have taken a restrictive
view as to the circumstances under which the presumption is
warranted. See, e.g., United States v. Goodwin, 457 U.S.
368, 382 n. 15 (1982) (presumption may not exist where "the
only evidence [a defendant] is able to marshal in support of
his allegation of vindictiveness is that the additional
charge was brought at a point in time after his exercise of a
protected right"); United States v. Esposito, 968 F.2d 300,
306 (3rd Cir. 1992) (general rule that court "will not apply
a presumption of vindictiveness to a subsequent criminal case
where the basis for that case is justified by the evidence
and does not put the defendant twice in jeopardy"); United
States v. Pimienta-Redondo, 874 F.2d 9, 13 (1st Cir.) ("the
presumption does not apply indiscriminately to all instances
of detrimental action treading close upon the heels of a
defendant's exercise of some legal right" and should not
"serve to block a legitimate response to criminal conduct"),
cert. denied, 493 U.S. 890 (1989); United States v. Guthrie,
789 F.2d 356, 360 (5th Cir. 1986) (no presumption is created
if any event should indicate that the prosecutor's decision
is motivated by some purpose other than a vindictive desire
to deter or punish appeals).
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Here, the prosecution did nothing out of the
ordinary in bringing a failure-to-appear indictment against
Guyon, an indictment clearly supported by the evidence. The
single fact that the indictment was returned shortly after
Guyon took steps to pursue an appeal of his bank-fraud
conviction is simply not sufficient to establish a
presumption of vindictiveness on the facts of this case.
Accordingly, we find that, as a matter of law, the facts here
do not support a presumption of vindictive prosecution.
C. Sentencing
Guyon argues that the district court erred when it
sentenced him to a six-month period of confinement in a CTC,
to begin after the sentence for the Virginia bank-fraud
conviction. Guyon contends that because the thirty-seven
month bank-fraud sentence is the maximum possible under the
Sentencing Guidelines, no additional penalty for his failure
to appear should have been imposed. He reasons that no
sentence would be a "reasonable incremental punishment" under
the circumstances and, alternatively, that the failure-to-
appear conviction should be grouped with the bank-fraud
offense for sentencing purposes. See U.S.S.G. 5G1.3 and
2J1.6; United States v. Agoro, 996 F.2d 1288 (1st Cir. 1993).
We need not address the merits of these arguments.
Instead, we resolve this issue by noting that Guyon's term at
the CTC was scheduled to expire on (approximately) October
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31, 1994. Since Guyon is presumably no longer confined to
the CTC, we therefore treat this issue as moot. See United
States v. Lussier, 929 F.2d 25, 27 (1st Cir. 1991) (question
of the propriety of defendant's incarceration as a result of
his refusal to provide booking information is moot after
defendant has provided the information and been released);
United States v. Vachon, 869 F.2d 653, 656 (1st Cir. 1989)
(defendant's claim to pretrial release is moot after his
conviction).
For the reasons stated above, we affirm the
judgment of the district court.
Affirmed.
Affirmed.
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