United States v. Scantlebury

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2019 Decided April 16, 2019

No. 18-3043

UNITED STATES OF AMERICA,
APPELLEE

v.

JOHN WAYNE SCANTLEBURY, ALSO KNOWN AS FREDERICK
DAVIS, ALSO KNOWN AS JOHN WAYNE TROTMAN,
APPELLANT

Consolidated with 18-3044

Appeals from the United States District Court
for the District of Columbia
(No. 1:04-cr-00285-3)
(No. 1:04-cr-00285-4)

Lawrence J. Joseph argued the cause and filed the briefs
for appellants.

Vijay Shanker, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee.

Before: PILLARD and KATSAS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
 2
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

EDWARDS, Senior Circuit Judge: In 2004, Appellants,
John Wayne Scantlebury (“Scantlebury”) and Sean Gaskin
(“Gaskin”), who are residents of Barbados, along with another
Barbadian resident – Frederick Christopher Hawkesworth
(“Hawkesworth”) – and two Guyanese residents, were indicted
by a grand jury in Washington, D.C., for conspiracy to traffic
cocaine. Scantlebury, Gaskin, and Hawkesworth (who is now
deceased) all challenged extradition to the United States. The
disputes over extradition lasted for over nine years. Finally, in
December 2013, the U.S. Government moved to dismiss the
charges against Scantlebury, Gaskin, and Hawkesworth
without prejudice, citing “the age of the case, government
resources, and other factual and legal issues which indicate the
case is no longer viable.” Joint Appendix (“J.A.”) 41. The
District Court granted the Government’s motion to dismiss on
January 9, 2014.

Appellants argue that prosecutors in the United States
knew for years, well before they moved to dismiss the charges,
that the cases had “cratered” and that there was no probable
cause to support the indictments. Appellants therefore assert
that the District Court should have dismissed the indictments
with prejudice. On appeal, Appellants seek a remand to the
District Court with instructions to dismiss the charges with
prejudice. The Government in turn contends that this court has
no basis upon which to entertain this appeal. We agree with the
Government.

First, we are bound by the Supreme Court’s decision in
Parr v. United States, 351 U.S. 513 (1956). In Parr, the Court
held that, without more, a criminal defendant whose indictment
is dismissed without prejudice is not aggrieved and, therefore,
 3
has no standing to appeal. Id. at 516–17. Second, even
assuming, arguendo, that the threat of subsequent prosecution
might be sufficient in some cases to support an appeal of a
dismissal without prejudice, the statute of limitations has run
on the charges against Appellants, so the question is moot.
Third, Appellants assert ongoing reputational injuries allegedly
caused by their arrest and indictment records. But they lack
standing to pursue these claims because dismissing the
indictment with prejudice would not redress the alleged
reputational harms. Finally, we hold that the court lacks
jurisdiction to consider Appellants’ request for declaratory
relief.

I. BACKGROUND

The U.S. Government began investigating Hawkesworth
for cocaine trafficking in 2000. The Government suspected that
Raphel Douglas (“Douglas”) and Terrence Sugrim (“Sugrim”)
were supplying cocaine from Guyana to Hawkesworth. And
Appellants were suspected of assisting Hawkesworth in an
international drug trafficking operation that distributed cocaine
in Barbados and transported cocaine from Barbados and
Guyana to the United States.

As part of its investigation, the Government worked with
an unnamed confidential informant. The informant allegedly
spoke with Appellants and Hawkesworth on several occasions
and made plans to help them transport cocaine to the United
States.

In 2004, a federal grand jury in Washington, D.C.,
returned a two-count indictment against Scantlebury, Gaskin,
Hawkesworth, Douglas, and Sugrim. The first count alleged
that all five defendants had conspired to distribute more than
five kilograms of cocaine. The second count alleged that
 4
Hawkesworth and Douglas distributed 500 grams or more of
cocaine. With respect to Appellants specifically, the indictment
alleged that they “obtained false identification cards and
documents in order to travel to the United States to facilitate
the importation of cocaine from Barbados, Guyana and
elsewhere into the United States.” J.A. 35. The indictment
stated that Hawkesworth was the leader of the organization,
which had allegedly shipped 184 kilograms of cocaine from
Guyana to JFK Airport in New York City. The indictment also
alleged that Scantlebury and Gaskin met with the informant to
discuss whether contacts were in place for a test shipment of
cocaine and that the informant provided Scantlebury and
Gaskin with fake identification cards.

Following indictment, the Government sought extradition
of Scantlebury, Gaskin, and Hawkesworth from Barbados and
Douglas and Sugrim from Guyana. Douglas was extradited, but
Sugrim was never taken into custody. The three Barbadian
defendants were arrested by Barbadian law enforcement
officials, but they challenged extradition and remained in
Barbados. All three were released on bail in late 2004 or early
2005. Then, for reasons that are not indicated in the record,
their bail was revoked and they returned to jail in Barbados in
2011. Scantlebury, Gaskin, and Hawkesworth remained
incarcerated in Barbados from 2011 until the indictments were
dismissed on January 9, 2014.

In support of its requests for extradition from Barbados,
the U.S. Government submitted affidavits written by a Senior
Trial Attorney in the Criminal Division of the Department of
Justice (“Trial Attorney”), a Drug Enforcement Administration
(“DEA”) special agent, and the confidential informant. The
Trial Attorney’s affidavit stated that the evidence against the
defendants included the testimony of the confidential
informant and of DEA agents, audio and video recordings of
 5
conversations, photographs, telephone records, passport
records, airline records, and seized cocaine. The DEA special
agent’s affidavit stated that 184 kilograms of cocaine, packed
in a shipment of frozen seafood, was seized at JFK Airport on
September 20, 2003, and that, later that day, the confidential
informant met with Sugrim and Hawkesworth, who said that
they had lost a load of 180 kilograms of cocaine that had been
shipped to JFK. The DEA affidavit also noted that the
confidential informant “was told that nobody was arrested.”
J.A. 132. In addition, the DEA affidavit noted that the
confidential informant had worked with the DEA for
approximately five years and had proven to be “completely
reliable.” Id. at 129.

In support of its request for extradition of Douglas, U.S.
Government officials made several additional statements
attesting to the reliability of the confidential informant. Id. at
160. Douglas was extradited from Trinidad to the United States
in October 2005. It was later determined, however, that several
of the Government’s claims made in support of the confidential
informant’s reliability were not true. See id. at 225–31. In
February 2007, the U.S. Government moved to dismiss without
prejudice the District of Columbia indictment against Douglas.
The motion was granted by the District Court.

The Government subsequently filed a second indictment
against Douglas, Hawkesworth, and Sugrim in the Eastern
District of New York on narcotics and use of telephone
charges. In the New York case, the Government acknowledged
that there were inaccuracies in the materials that it had
submitted supporting Douglas’s extradition. Douglas
ultimately pled guilty to a telephone charge and was sentenced
to time served. See id. at 276.
 6
In November 2013, Gaskin consented to extradition to the
United States, but he was never extradited. Instead, on
December 24, 2013, the U.S. Government filed a motion to
dismiss without prejudice the District of Columbia indictment
against Scantlebury, Gaskin, Hawkesworth, and Sugrim
pursuant to Rule 48(a) of the Federal Rules of Criminal
Procedure (“Rule 48(a)”). The Government explained that its
motion was made “in good faith” based on “the age of the case,
government resources, and other factual and legal issues which
indicate the case is no longer viable.” Id. at 41. Approximately
two weeks later, on January 9, 2014, the District Court granted
the Government’s motion and the defendants were released
from Barbadian custody. See id. at 345.

In 2015, the Barbadian defendants filed civil actions
against the United States and certain federal officers. See
Complaint, Gaskin v. United States, No. 15-cv-23-EGS
(D.D.C. Jan. 8, 2015); Complaint, Gaskin v. May, No. 15-cv-
33-EGS (D.D.C. Jan. 9, 2015). The criminal case arising out of
the District of Columbia indictment was subsequently unsealed
in September 2015. See J.A. 20–21. In February 2016, the
Barbadian defendants moved in the criminal case for alteration
of the dismissal of the indictment from a dismissal without
prejudice to a dismissal with prejudice. See id. at 46–92. The
defendants argued that they were innocent of the charges in the
indictment, that the charges harmed their reputations, and that
the Government had committed prosecutorial misconduct by
swearing to inaccurate statements and failing to timely notify
the Barbadian government when the case against the
defendants fell apart. Id. The motion did not request
expungement of the records of arrest or indictment. Instead, the
defendants merely sought to “reserve the right to seek the lesser
relief” of expungement if the motion requesting dismissal with
prejudice was denied. Id. at 90. Defendant Hawkesworth
 7
passed away before the District Court ruled on the motion. See
id. at 24.

The District Court denied the motion to alter the dismissal
without prejudice to a dismissal with prejudice, concluding that
dismissal with prejudice was not warranted because the
defendants “failed to rebut the presumption that the
government sought dismissal in good faith and because the
circumstances here do not rise to the level of being
exceptional.” Id. at 357. The District Court acknowledged that
the defendants had reserved the right to seek expungement and
stated that it would “address any such request [for
expungement]” if “movants [sought] additional relief
following the Court’s decision on the pending motions.” Id. at
366. Appellants moved for reconsideration of the District
Court’s denial of their motion to alter the dismissal without
prejudice to a dismissal with prejudice. Their request for
reconsideration was denied. Appellants never filed a motion
with the District Court seeking expungement. This appeal
followed.

II. DISCUSSION

Appellants assert that this court has jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291, which gives the courts of
appeals jurisdiction over “all final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. Appellants
acknowledge that their standing to appeal is dubious under
Parr, 351 U.S. at 516, and also Lewis v. United States, 216 U.S.
611, 612 (1910) (per curiam) (holding that when a criminal
defendant is “discharged from custody he is not legally
aggrieved and therefore cannot appeal”). See Appellants’ Br. at
27. Appellants argue, however, that they have suffered
“ongoing reputational injury from the indictment . . . and thus
[have] standing to seek to convert the dismissal without
 8
prejudice into a dismissal with prejudice that would exonerate
them of wrongdoing and redress those ongoing injuries.” Id. at
28–29.

The Government contends that “[t]his Court should
dismiss the appeal for lack of appellate jurisdiction.”
Appellee’s Br. at 13. In support of this position, the
Government asserts, first, that “[t]he Supreme Court has
squarely held that the dismissal of an indictment without
prejudice is not an appealable order”; second, “[a] defendant
whose indictment is dismissed is not injured by that ruling,
even if he still faces potential prosecution, suffered reputational
harm from the indictment, and was deprived of liberty as a
result of the charges”; and, finally, that “[a] dismissal without
prejudice [] is an interlocutory order” that is subject to review
only “after trial on a new indictment, conviction, and
sentencing.” Id. at 13–14.

The matters at issue in this case concern the jurisdiction of
the court. Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986) (“[E]very federal appellate court has a special
obligation to satisfy itself . . . of its own jurisdiction.”) (internal
quotation marks omitted). Therefore, we address the issues de
novo. See Safari Club Int’l v. Jewell, 842 F.3d 1280, 1285
(D.C. Cir. 2016).

On the record before us, we hold that this court has no
basis upon which to entertain this appeal. Appellants lack
standing to appeal because they were not aggrieved by the
dismissal without prejudice; the statute of limitations has run
on the charges against Appellants, so the question regarding
whether they face a threat of subsequent prosecution is moot;
and they have asserted no viable grounds for redress of their
alleged reputational injuries. In light of these holdings, we need
 9
not decide whether the District Court’s dismissal without
prejudice was “final” for the purposes of § 1291.

A. Appellants Lack Standing to Appeal for Lack of
Aggrievement

Federal courts may not adjudicate cases unless the parties
have a personal stake in the suit, not only at the outset of the
litigation but at each successive stage as well. See Camreta v.
Greene, 563 U.S. 692, 701 (2011). One element of that inquiry
is whether, at each stage of the litigation, the party seeking
relief can establish the “invasion of a legally protected
interest.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
In Parr, the Court held that a defendant whose indictment has
been dismissed without prejudice is not aggrieved so as to
support standing to appeal. 351 U.S. at 516–17.

The defendant-appellant in Parr obtained a transfer of the
indictment against him to another division within the same
district on grounds of local prejudice. Id. at 514. The
Government then dismissed that indictment and filed a new
indictment in another district. Id. at 515. Parr appealed the
dismissal without prejudice, but the Supreme Court held that
Parr could not appeal unless and until he was convicted and
sentenced. Id. at 516–18.

Taking the initial, dismissed indictment in isolation, the
Court held that Parr could not appeal the dismissal for want of
standing:

If the Corpus Christi indictment is viewed in isolation
from the Austin indictment, an appeal from its
dismissal will not lie because petitioner has not been
aggrieved. Only one injured by the judgment sought
 10
to be reviewed can appeal, and, regarding the Corpus
Christi proceeding as a separate prosecution,
petitioner has not been injured by its termination in
his favor. So far as petitioner’s standing to appeal is
concerned, it makes no difference whether the
dismissal still leaves him open to further prosecution,
or whether, as petitioner contends, it bars his
prosecution elsewhere than in Laredo because the
transfer order operated to give him a vested right to be
tried only there. The testing of the effect of the
dismissal order must abide petitioner’s trial, and only
then, if convicted, will he have been aggrieved.

Id. at 516–17 (citations omitted).

Thus, the Court’s holding in Parr indicates that, as a
general matter, a criminal defendant is not injured, and thus
lacks standing to challenge a dismissal without prejudice,
unless and until he is subsequently convicted. See also United
States v. Martin, 682 F.2d 506, 507 (5th Cir. 1982) (per curiam)
(“Any testing of the dismissal order must abide the outcome of
a trial on the issue of guilt. Then, if convicted, the defendants
may be aggrieved.”).

Appellants argue that, since the decisions in Lewis and
Parr, “federal courts have expanded their appreciation of what
constitutes an Article III injury . . . so a century later ‘an appeal
brought by a prevailing party may satisfy Article III’s case-or-
controversy requirement.’” Appellants’ Br. at 28 (quoting
Camreta, 563 U.S. at 702). Appellants’ cited authority is
inapposite to this case.

Camreta, for example, was a civil case involving qualified
immunity. As the Court explained, “a state child protective
services worker and a county deputy sheriff interviewed a girl
 11
at her elementary school in Oregon about allegations that her
father had sexually abused her. The girl’s mother subsequently
sued the government officials on the child’s behalf for damages
under Rev. Stat. § 1979, 42 U.S.C. § 1983, claiming that the
interview infringed the Fourth Amendment.” 563 U.S. at 697.
The Court of Appeals ruled that the public officials had
violated the Constitution, but that qualified immunity protected
the officials from liability.

The Supreme Court held that the public officials in
Camreta had standing to seek review because they retained a
“necessary personal stake in the appeal,” given that the ruling
could still “have prospective effect on the parties.” Id. at 702.
The Court explained:

[The] Article III standard often will be met when
immunized officials seek to challenge a ruling that
their conduct violated the Constitution. That is not
because a court has made a retrospective judgment
about the lawfulness of the officials’ behavior, for that
judgment is unaccompanied by any personal liability.
Rather, it is because the judgment may have
prospective effect on the parties. The court in such a
case says: “Although this official is immune from
damages today, what he did violates the Constitution
and he or anyone else who does that thing again will
be personally liable.” If the official regularly engages
in that conduct as part of his job (as Camreta does), he
suffers injury caused by the adverse constitutional
ruling. So long as it continues in effect, he must either
change the way he performs his duties or risk a
meritorious damages action.

563 U.S. at 702–03.
 12
In Camreta, the defendants had the “necessary personal
stake” in the outcome of the appeal because they would be
compelled to alter their future conduct to comply with the
judgment. Appellants have not argued that they have been
affected similarly in this case, nor do they have any basis upon
which to do so.

The Government also argues that Appellants cannot appeal
the dismissal without prejudice because it does not constitute a
final decision for the purposes of 28 U.S.C. § 1291. In Parr,
the Court held that the appeal was premature because the
subsequent indictment was still pending at the time of appeal.
See Parr, 351 U.S. at 518–19. In so doing, the Court broadly
stated that “[f]inal judgment in a criminal case means
sentence.” Id. at 518 (quoting Berman v. United States, 302
U.S. 211, 212 (1937)).

In this case, however, unlike Parr, no subsequent
indictment was handed down. And the statute of limitations on
the charge against Appellants expired before oral argument. At
oral argument, counsel for the Government confirmed that the
Government would not seek a further indictment. Therefore,
the judgment in this case is as final as it will ever be. Under
these circumstances, there is reason to doubt whether Parr’s
finality holding is applicable.

The Supreme Court in Parr took pains to address the first
and second indictments in that case independently, treating the
first, dismissed indictment as unappealable for lack of injury,
while separately holding that the subsequent indictment was
not yet appealable for lack of finality. And at least one of our
sister circuits has made the same distinction. See United States
v. Moller-Butcher, 723 F.2d 189, 191 (1st Cir. 1983) (“If [the
defendant] is not reindicted, it will never have suffered injury
as a result of the dismissal. If, on the other hand, [the defendant]
 13
is reindicted, then the dismissal is an intermediate step in the
prosecution which may be reviewed only after final judgment
in the case.”).

It is unnecessary for us to decide whether Parr’s finality
holding applies to this case. On the record before us, it is clear
that, under Parr, Appellants were not aggrieved by their
dismissals without prejudice. Therefore, they have no standing
to pursue this appeal.

B. Appellants’ Challenges to the Dismissals of Their
Indictments Without Prejudice Are Moot

We also lack jurisdiction over this appeal because the
claims raised by Appellants are moot. “When ‘subsequent
events ma[ke] it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur,’ we have
no live controversy to review.” Camreta, 563 U.S. at 711
(alteration in original) (quoting United States v. Concentrated
Phosphate Export Ass’n, Inc., 393 U.S. 199, 203 (1968)).

The parties agree that the statute of limitations has run on
the drug trafficking charge pursuant to which Appellants were
indicted. See Appellants’ Br. at 28 n.8 (noting that, even if the
statute of limitations was tolled pending extradition, the five-
year statute of limitations expired on January 13, 2019).
Therefore, there is no possibility that Appellants will be
indicted for the same alleged offenses that gave rise to this case.
The elimination of exposure to re-indictment moots
Appellants’ objections to the form of the dismissal. See Lewis,
216 U.S. at 613; see also Parr, 351 U.S. at 517 & n.8
(discussing the finding of mootness in Lewis).
 14
C. Due to Lack of Redressability, Appellants Lack
Standing to Support Their Claims of Reputational
Injuries

Appellants argue that they have standing to pursue this
appeal because of alleged “ongoing reputational injury from
the indictment.” Appellants’ Br. at 28. In support of this
assertion, Scantlebury and Gaskin submitted declarations to the
court reciting reputational harms that continue to adversely
affect their job opportunities, limit their abilities to secure bank
loans, and make it difficult for them to visit the United States.
Each Appellant claims that “[a]n order of this Court dismissing
[his] indictment with prejudice – or less preferably, expunging
[his] arrest record – would enable [him] to claim that the
indictment was in error because [he] was not guilty of the
charges and would remove an obstacle” to re-establishing his
reputation or returning to the United States. J.A. 106, 109.

On the record before us, we hold that the reputational
injuries alleged by Appellants do not give them standing to
appeal. This is because the relief that Appellants seek – an
alteration of the dismissals without prejudice to dismissals with
prejudice – would not redress the injuries that Appellants have
alleged.

In order to establish standing, “it must be ‘likely,’ as
opposed to merely ‘speculative,’ that the injury will be
‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561
(quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38,
43 (1976)). Appellants argue that a favorable ruling from this
court that “the United States charged them without probable
cause would redeem their reputations” and that, with respect to
Gaskin, “striking the arrest would prevent U.S. immigration
officials from using the fact of the arrest against him in the
discretionary processing of his planned application to apply to
 15
return to the United States.” Appellants’ Br. at 29. These
arguments are premised on a misunderstanding of Rule 48(a),
which allows the prosecution to dismiss an indictment only
“with leave of court.” Fed. R. Crim. P. 48(a).

“[T]he ‘leave of court’ authority gives no power to a
district court to deny a prosecutor’s Rule 48(a) motion to
dismiss charges based on a disagreement with the prosecution’s
exercise of charging authority.” United States v. Fokker Servs.
B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). Rather, a trial court
“reviews the prosecution’s motion under Rule 48(a) primarily
to guard against the prospect that dismissal is part of a scheme
of ‘prosecutorial harassment’ of the defendant through
repeated efforts to bring—and then dismiss—charges.” Id.
(quoting Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977)).
Therefore, a finding that the District Court erred in applying
Rule 48(a) would not constitute a holding in Appellants’ favor
that the Government charged them without probable cause. Nor
would a favorable holding have any impact on the records of
Appellants’ arrests and indictments.

The problem for Appellants is that their alleged
reputational injuries stem from their arrests and indictments,
not from the District Court’s application of Rule 48(a). Neither
the trial court nor this court may second-guess an indictment
that is “‘fair upon its face,’ and returned by a ‘properly
constituted grand jury.’” Kaley v. United States, 571 U.S. 320,
328 (2014) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19
(1975)); see also id. (“The grand jury gets to say––without any
review, oversight, or second-guessing––whether probable
cause exists to think that a person committed a crime.”).
Therefore, absent a meritorious challenge to their indictments,
we lack the authority to afford Appellants the relief that they
seek.
 16
Had Appellants sought expungement of their indictment
and arrest records, rather than dismissal with prejudice, the
redressability analysis might have been different. But
Appellants did not move for expungement before the District
Court and they have not requested it before this court.

The remedy of expungement is available only if
“necessary to vindicate rights secured by the Constitution or by
statute.” Abdelfattah v. DHS, 787 F.3d 524, 536 (D.C. Cir.
2015) (quoting Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C.
Cir. 1975)); see also id. at 538 (“[We do not] recognize a
nebulous right to expungement of government records that are
inaccurate, were illegally obtained, or are ‘prejudicial without
serving any proper purpose;’ instead expungement is a
potentially available remedy for legally cognizable injuries.”).
Appellants have made no attempt to satisfy this standard.

In sum, the remedy sought by Appellants, if granted,
would not redress their alleged reputational injuries. Therefore,
Appellants lack standing to pursue these claims.

D. The Court Has No Jurisdiction to Consider
Appellants’ Claims Under the Declaratory Judgment
Act

Finally, Appellants request declaratory relief from this
court under the Declaratory Judgment Act, 28 U.S.C. § 2201.
However, the Declaratory Judgment Act does not extend the
jurisdiction of the federal courts. See Skelly Oil Co. v. Phillips
Petroleum Co., 339 U.S. 667, 671 (1950) (“[The Declaratory
Judgment Act] enlarged the range of remedies available in the
federal courts but did not extend their jurisdiction.”). Having
concluded that we lack jurisdiction over this appeal on injury,
mootness, and redress grounds, we further conclude that we
 17
lack jurisdiction to consider Appellants’ request for declaratory
relief.
III. CONCLUSION

For the reasons stated herein, these appeals are dismissed.

So ordered.