United States v. Guyon

USCA1 Opinion









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[Not for Publication] [Not for Publication]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-





-2- 2













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).

-3- 3













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.

-4- 4













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.


-5- 5













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







-6- 6













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).

-7- 7













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



-8- 8













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).



-9- 9













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



-10- 10













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. _________





























-11- 11