United States v. Stokes

No. 97-1118

UNITED STATES OF AMERICA,

Appellant,

v.

RONALD A.X. STOKES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Selya, Circuit Judge,

Hill,* Senior Circuit Judge,

and Boudin, Circuit Judge.

Donald K. Stern, United States Attorney, with whom Andrea N.
Ward, Assistant United States Attorney, was on brief, for
appellant.
James
S.
Dilday, with whom Derege
B.
Demissie and Grayer
&
Dilday were on brief, for appellee.

August 22, 1997

*Of the Eleventh Circuit, sitting by designation.

SELYA,
Circuit Judge
. The United States appeals from the

dismissal, on due process grounds, of an indictment against

defendant-appellee Ronald A.X. Stokes. Because the district court

acted improvidently and in excess of its authority, we reverse.

I. BACKGROUND

The factual foundation of the case is laid elsewhere,
see

United
States v. Stokes, 947 F. Supp. 546 (D. Mass. 1996);

Commonwealth v. Stokes, 653 N.E.2d 180 (Mass. App. Ct.), review

denied, 655 N.E.2d 1277 (Mass. 1995), and a sketch suffices for

present purposes.

Boston police officers arrested Stokes on December 6,

1990, and charged him with first-degree murder, unlawful carriage

of a firearm (an AK-47 semi-automatic rifle), and two counts of

assault and battery with a dangerous weapon. On August 11, 1992,

a state court jury acquitted him on the murder charge, but

convicted him on the other three counts. Mindful of both the

circumstances of the crimes and the defendant's recidivism, the

judge sentenced him at or near the statutory maximum for each count

and made the sentences consecutive. Stokes' anticipated release

date from state confinement is in 2006.

The federal government knew of Stokes' case no later than

June 9, 1993. Still, the federal behemoth did not stir until

December 5, 1995, when the United States charged Stokes with being

a felon in possession of a firearm. See 18 U.S.C. S 922(g)(1)

(1994). Stokes moved to dismiss the federal indictment on

temporally oriented grounds. He averred that the prosecution was

2

time-barred and that the protracted preindictment delay violated

(a) his Fifth Amendment right to due process, (b) his Sixth

Amendment right to a speedy trial, and (c) the strictures of Fed.

R. Crim. P. 48(b). Following a hearing, the district court took

the unorthodox step of submitting a series of interrogatories to

the government sua sponte.

In the course of those proceedings, the government

explained, among other things, that this prosecution would further

the federal interest in protecting the public from a violent

criminal. The government noted that Stokes, who had accumulated an

unrelieved record of bellicose criminality, on this occasion had

wielded a particularly lethal weapon, and that, if he were to be

convicted on the federal charge, he could be punished as an armed

career criminal. The court eventually rejected each of Stokes'

claims. Because the five-year statute of limitations commenced

running on December 7, 1990, the indictment, handed up on December

5, 1995, was timely. See
United States
v.
Stokes, 947 F. Supp. at

550. Because the defendant made no showing that preindictment

delay caused him actual prejudice or emanated from a prosecution

effort to gain an unfair tactical advantage, Stokes' Fifth

Amendment claim failed. See id. at 551. Because an accused's

constitutional right to a speedy trial does not attach until the

The United States Attorney obtained an authorized waiver from
the Justice Department's Petite policy, an aspirational protocol
which seeks to prevent overlapping federal-state prosecutions
absent a compelling federal interest. See
generally
United States
v.
Gary, 74 F.3d 304, 313 (1st Cir.),
cert.
denied, 116 S. Ct. 2567
(1996).

3

filing of a charge, the Sixth Amendment offered Stokes no shelter.

See id. at 552. And, finally, the court ruled that Criminal Rule

48(b) does not apply to preindictment delay. See id.

Had the district court stopped at this juncture, these

proceedings would be unnecessary. But the judge brooded over the

sentencing possibilities. Noting that, regardless of the earlier

acquittal, Stokes' sentence could be enhanced to life imprisonment

without parole if the government obtained a conviction on the

federal weapons charge and then proved at sentencing by a

preponderance of the evidence that he had committed the murder,
see

generally USSG S2K2.1; USSG S1B1.3(a), the judge foresaw "vexing

issues" of due process, double jeopardy, and selective prosecution.

United States
v.
Stokes, 947 F. Supp. at 553. While acknowledging

that the prosecution transgressed no established constitutional

doctrine, he identified four factors which, in his estimation, gave

rise to "constitutional implications": (1) the substantial

preindictment delay; (2) a
de
facto successive prosecution for the

same firearms offense, albeit by a different sovereign, exacerbated

by the prospect of a disparate sentence of mandatory life

imprisonment; (3) a de facto reprosecution, in the guise of a

sentencing enhancement, for acquitted conduct (the murder) under a

less rigorous standard of proof; and (4) a form of selective

prosecution. Id. at 556-57. He then proceeded to dismiss the

indictment, reasoning that "[a]lthough no one factor, by itself,

may offend constitutional canons, the effect of all of the factors

in the aggregate . . . violates the Due Process Clause." Id. at

4

557. This appeal ensued.

II. DISCUSSION

Because the district court's dismissal of the indictment

on constitutional grounds raises a pure question of law, we

exercise plenary review. See
United States
v.
Nippon Paper Indus.

Co., 109 F.3d 1, 3 (1st Cir. 1997), petition for cert. filed, 65

U.S.L.W. 3839 (U.S. June 13, 1997) (No. 96-1987);
United States
v.

Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir. 1992). We begin with

the court's aggregation theory and then turn to the court's

preoccupation with possible sentencing outcomes. We conclude by

considering various alternative grounds proffered by the appellee

in an attempt to salvage the judgment.

A. Aggregate Effect.

The cornerstone of the district court's order is its

conclusion that a medley of constitutional concerns, each

insufficient to bar prosecution, added up to a due process

violation and required dismissal of the indictment. The district

court cited United States v. Lombard, 72 F.3d 170 (1st Cir. 1995)

(Lombard
I), as the sole authority for this aggregation theory.

Lombard I is well wide of the mark.

A state court jury acquitted Lombard on murder charges.

A federal court jury subsequently convicted him on federal firearms

charges arising out the same nucleus of operative facts. The trial

judge imposed a mandatory life sentence based on preponderant

evidence that Lombard used the weapons to commit the murders (of

which he previously had been acquitted). See id. at 172.

5

Expressing but not resolving constitutional concerns about, inter

alia, the magnitude of the sentence enhancement, the prior

acquittal, the qualitative difference between the sentence-

enhancing conduct and the offense of conviction, and the severity

of the sentence imposed, the court held that this combination of

special facts permitted the district court to consider a downward

departure at sentencing. See id. at 180, 184-85; see also United

States v. Lombard, 102 F.3d 1, 2 (1st Cir. 1996) ( Lombard
II)

(explicating previous panel decision), cert. denied, 117 S. Ct.

2437 (1997).

Lombard
I offers no support for the dismissal of the

indictment in this case. Lombard
I is a sentencing case,

elaborating on departure principles, and its analysis is unique to

the milieu of the federal sentencing guidelines.
See
Lombard I
, 72

F.3d at 183-87; see generally Koon v. United
States, 116 S. Ct.

2035, 2044-45 (1996). Judge Harrington transposed the statements

contained in
Lombard I
from the sentencing context to the pretrial

context. Tugging those statements so far from their moorings

empties them of meaning.

Moreover, Judge Harrington's reading of Lombard
I is

undone by
Lombard II
(which, in all fairness, was decided some two

weeks after Judge Harrington ruled). Lombard
I resulted in a

remand for further consideration of the appropriate sentence. 72

F.3d at 187. Lombard
II upheld the district court's denial of a

downward departure and its reimposition of a sentence of life

imprisonment. 102 F.3d at 2-3, 5. This result refutes Judge

6

Harrington's vision of Lombard
I as the progenitor of a new

constitutional dogma. The short of it is that the district court

did not cite, and we have not unearthed, any authority for the

proposition that individual factors, none of which crosses

constitutional boundaries, may violate the Constitution in the

aggregate. While perhaps some strange concatenation of

circumstances lurks at the outer periphery of constitutional

doctrine, we are confident that, on the facts of this case, the

whole is no more than the sum of the parts.

In a gallant effort to hold his gains, Stokes' able

counsel points out that we have recognized in other contexts the

principle of cumulative effect. See, e.g., United
States v.

Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993);
United States
v.

Dwyer, 843 F.2d 60, 65 (1st Cir. 1988). That is true as far as it

goes but it does not go very far. While trial errors which in

isolation appear harmless may have a cumulative effect so

prejudicial as to require reversal, the operation of that principle

depends on the existence of two or more errors. By definition,

cumulative-error analysis is inappropriate when a party complains

of the cumulative effect of non-errors. See Hoxsie v. Kerby, 108

F.3d 1239, 1245 (10th Cir. 1997), petition for cert. filed,

U.S.L.W. (U.S. June 9, 1997) (No. 96-9364). Here, as Judge

Harrington himself concluded, each individual claim of

constitutional error misfires. Thus, we cannot endorse the curious

alchemy by which the lower court transformed an array of

constitutionally acceptable factors into a constitutional

7

abomination.

B. Sentencing Considerations.

The court below dwelt at some length on the potentially

severe sentence that Stokes might receive if he were convicted on

the federal charge. The court's reliance on this factor as a basis

for granting relief was at best premature.

In the normal course of events, a facially valid

indictment returned by a duly constituted grand jury calls for a

trial on the merits. See
Costello v.
United States
, 350 U.S. 359,

363 (1956); United States v. Rodriguez, 738 F.2d 13, 16 (1st Cir.

1984). Because the public maintains an abiding interest in the

administration of criminal justice, dismissing an indictment is an

extraordinary step. See United States v. Morrison, 449 U.S. 361,

363-64 (1981). Even when evidence of a constitutional infraction

looms, remedies ordinarily "should be tailored to the injury

suffered from the constitutional violation and should not

unnecessarily infringe on competing interests."
Id. at 364. Thus,

an indictment should not be dismissed with prejudice when other

means exist to correct a constitutional breach. See id. at 365;

cf. United
States v. Hastings, 847 F.2d 920, 928-29 (1st Cir.

1988).

This principle applies in regard to sentencing: when the

supposed constitutional infirmity derives from particular

attributes of a sentence imposed, the scope of relief is limited to

excising the taint from the sentence.
See,
e.g.,
Coker v.
Georgia,

433 U.S. 584, 600 (1977); United States v. Connell, 960 F.2d 191,

8

196-97 (1st Cir. 1992). Though we take no view as to whether the

concerns to which the district court alluded might warrant relief

at the sentencing stage, see generally United
States v. Saldana,

109 F.3d 100, 104 (1st Cir. 1997) (acknowledging the possibility

that the timing of an indictment might, in some circumstances,

"produce[] sentencing consequences so unusual and unfair that a

departure would be permissible"), those concerns are properly

reserved for consideration at the time of sentencing. They have

no bearing on the question of whether a trial should go forward.

The anatomy of the doctrine of preindictment delay

strengthens our conviction that Judge Harrington prematurely

considered post-conviction possibilities. Dismissal for

preindictment delay on due process grounds requires, inter alia, a

showing of actual prejudice. See
United States
v.
Marion, 404 U.S.

307, 325-26 (1971); Acha v. United
States, 910 F.2d 28, 32 (1st

Cir. 1990) (per curiam). Accordingly, courts regularly have found

claims of prejudice related to sentencing possibilities too

speculative to implicate a defendant's due process right. See,

e.g., United States v. Martinez, 77 F.3d 332, 336 (9th Cir. 1996)

(rebuffing the defendant's pretrial claim of prejudice from the

effects of preindictment delay on his likely sentence because the

guidelines provided leeway for departures);
United States
v.
McCoy,

We note in passing that one of the principal constitutional
concerns underlying the district court's opinion, 947 F. Supp. at
553, has proven to be unfounded. See United States v. Watts, 117
S. Ct. 633, 637-38 (1997) (per curiam) (upholding the
constitutionality of considering acquitted conduct, under a
preponderance standard, for sentence-enhancement purposes).

9

977 F.2d 706, 711 (1st Cir. 1992) (rejecting as conjectural the

argument that preindictment delay reduced the defendant's

opportunity to serve concurrent terms on state and federal

charges). So it is here: whether Stokes' case ultimately will

reach the sentencing stage, and if so, what sentence will be

imposed, are questions reserved for an uncertain future. By

premising his analysis of the indictment's trialworthiness on the

constitutional implications of a life sentence not yet imposed

(and, perhaps, never to be imposed), Judge Harrington jumped the

gun by several paces.

To recapitulate, sentencing issues are properly addressed

during the sentencing phase of federal criminal trials. The

district court's flagrant contradiction of this tenet constituted

legal error.

C. Miscellaneous Grounds.

Stokes attempts to confess and avoid. If the district

court erred in its reasoning, he says, its result nevertheless is

defensible as a condign remedy for prosecutorial vindictiveness, or

as a concinnous exercise of the court's supervisory powers, or

because the district court erred when it failed to dismiss the

indictment on the basis of preindictment delay. We weigh each

asseveration.

1. Prosecutorial
Vindictiveness. It is hornbook law

that a federal court may dismiss an indictment if the accused

produces evidence of actual prosecutorial vindictiveness sufficient

to establish a due process violation, or even if he demonstrates a

10

likelihood of vindictiveness sufficient to justify a presumption.

See United States v. Goodwin, 457 U.S. 368, 376, 380 n.12 (1982);

United
States v. Marrapese, 826 F.2d 145, 147 (1st Cir. 1987).

Seizing on a singular reference in the closing paragraph of Judge

Harrington's opinion, Stokes urges us to uphold the court's

"finding" that prosecutorial vindictiveness occurred here. In

mounting this challenge, Stokes eschews a claim of actual

vindictiveness, arguing instead that a presumption of

vindictiveness arises from the government's admission that it would

not have prosecuted Stokes federally had he been convicted of

murder (and, therefore, given a substantially longer sentence) in

the state court.

We begin this segment of our analysis with a caveat:

courts should go very slowly in embracing presumptions of

prosecutorial vindictiveness in pretrial proceedings.
See
Goodwin,

457 U.S. at 381. Here, moreover, the allegation of vindictiveness

is not only oddly timed, but also oddly configured. The sovereign

is not alleged to have retaliated, as in the typical case, because

an accused, embroiled in a legal battle with it, asserted a legal

right. See,
e.g.,
Blackledge v.
Perry, 417 U.S. 21, 28-29 (1974);

North Carolina
v.
Pearce, 395 U.S. 711, 724-25 (1969). Rather, the

federal government is alleged to be acting vindictively in

retaliation for an accused's victory in a
state case. Since it is

The judge wrote, somewhat cryptically: "It is not fitting for
the United States to be vindictive . . . ." United
States v.
Stokes, 947 F. Supp. at 557.

11

well settled that "the conduct of two independent sovereigns does

not lend itself to the concept of vindictive prosecution," United

States v.
Bassford, 812 F.2d 16, 20 (1st Cir. 1987) (quoting
United

States v.
Ng, 699 F.2d 63, 68 (2d Cir. 1983)), this is a difficult

sale to make.

The level of difficulty increases due to the breadth of

the prosecutor's discretion. A federal prosecutor does not have

the resources (time, money, staff) to charge every suspected

malefactor. In picking and choosing, the prosecutor must act in a

fair and even-handed manner, and he is constrained by a set of

rules and conventions (both legal and ethical). But prosecutors

are not required to function as bloodless automatons: they may

(indeed, they should) make judgments about dangerousness, set

priorities, and give heightened attention to cases which inspire a

sense of outrage. This case illustrates the point: the

government's decision to refrain from initiating federal criminal

proceedings pending the outcome of a parallel (but independent)

state prosecution, and to relax the self-imposed restraint only

after it had been disappointed by the end result of the parallel

proceeding, falls squarely within the encincture of this

prosecutorial discretion. See
United States
v.
Fuzer, 18 F.3d 517,

520 (7th Cir. 1994); Ng, 699 F.2d at 68-69. The record indicates

Among other things, showing vindictive prosecution where two
separate sovereigns are involved would require a finding of
complicity between federal and state prosecutors. See Bassford,
812 F.2d at 20-21;
Ng, 699 F.2d at 68. There is no basis for such
a finding here.

12

that Stokes is a dangerous criminal, and the federal government had

a perfect right to take a hard look at his case and to determine

whether society's interests call for the unusual step of

instituting a federal prosecution notwithstanding the prior

commencement of a state prosecution for substantially the same

conduct.

We need not wax longiloquent. Simply put, the district

court's inscrutable reference to vindictiveness fails to compensate

for the utter absence of any circumstances from which a trier

legitimately could presume vindictiveness. See United
States v.

Sutherland, 929 F.2d 765, 772 n.2 (1st Cir. 1991) (noting that

conclusory allegations are insufficient when the record lacks any

competent evidence of vindictiveness).

2. Supervisory
Powers. The dismissal is equally

vulnerable if viewed as an exercise of the district court's

supervisory powers. Such powers enable courts, within limits, to

formulate procedural rules not specifically contemplated by the

Constitution or codified in positive law. See United
States v.

Hasting, 461 U.S. 499, 505 (1983). Thus, courts may invoke their

supervisory powers to implement a remedy for violation of

recognized rights, to preserve judicial integrity, or to deter

illegal conduct. See
id.;
see
also
United States
v.
Horn, 29 F.3d

754, 760 (1st Cir. 1994). Even so, courts must use these powers

"sparingly." United
States v. Santana, 6 F.3d 1, 10 (1st Cir.

1993).

The district court did not explicitly invoke its

13

supervisory powers, but it did voice lingering concerns about

"fundamental fairness" and "fair play." United States v. Stokes,

947 F. Supp. at 557. Stokes reads these references as reflecting

the court's belief that the government somehow abused its

prosecutorial discretion in lodging the indictment and thus denied

Stokes substantive due process. The facts do not bear out this

theory.

Although dismissing an indictment on substantive due

process grounds is not unprecedented, it is extremely rare. Such

a drastic step is reserved for cases of "serious and blatant

prosecutorial misconduct that distorts the integrity of the

judicial process." United
States v. Giorgi, 840 F.2d 1022, 1030

(1st Cir. 1988) (citation omitted). The instant case does not

present a suitable occasion for dismissing an indictment in order

to vindicate the court's supervisory authority.

In this vein, Stokes' flagship case, United
States v.

Rodman, 519 F.2d 1058 (1st Cir. 1975) (per curiam), gains him

little headway. There, we upheld the trial court's use of inherent

power to dismiss charges after the government breached a promise to

recommend against indictment in return for information which

included self-incriminating statements. See id. at 1059-60.

Rodman illustrates the sort of egregious circumstances which are

essential before a court appropriately may unleash its supervisory

powers to interfere with the exercise of prosecutorial discretion.

The case at bar in which the government had the discretion to

initiate a federal prosecution and punctiliously followed

14

applicable internal procedures in doing so is not of that genre.

We give short shrift to Stokes' related allegation that

the indictment was subject to dismissal because of prosecutorial

abuse of sentence enhancers. A pretrial dismissal on this basis

constitutes a totally inappropriate use of the court's supervisory

powers. See supra Part II(B); see also Horn, 29 F.3d at 760

(warning that courts may not employ their inherent powers to

justify extreme remedies when "satisfactory anodyne[s]" exist which

are "more narrowly tailored to the objective").

Finally, to the extent that Judge Harrington was

influenced in his ruling by his evident personal disagreement with

the government's decision to prosecute Stokes under federal law,

his action was inappropriate. It is a bedrock principle of our

system of criminal justice that "the Due Process Clause does not

permit courts to abort criminal prosecutions simply because they

disagree with a prosecutor's judgment as to when to seek an

indictment." United States v. Lovasco, 431 U.S. 783, 790 (1977);

accord Santana, 6 F.3d at 11 (reading Supreme Court precedent as

"admonishing federal courts to refrain from using the supervisory

power to conform executive conduct to judicially preferred norms by

dismissing charges" without sufficient legal cause).

In sum, the record contains no inkling of prosecutorial

misconduct, vindictiveness, or other conduct antithetic to

substantive due process which could justify dismissing the

indictment through the exercise of the court's supervisory powers.

3. Preindictment
Delay. Stokes' renewed claim of

15

unconstitutional preindictment delay lacks substance. A criminal

defendant who asserts such a claim bears the heavy burden of

showing not only that the preindictment delay caused him actual,

substantial prejudice, but also that the prosecution orchestrated

the delay to gain a tactical advantage over him. See Marion, 404

U.S. at 324; United States v. Henson, 945 F.2d 430, 439 (1st Cir.

1991). The appellee shows neither.

Stokes argues that he satisfied the first prong of the

test because, had the federal government promptly indicted him, he

would have continued searching for a potential defense witness,

Sherry Parkman, who disappeared between the date of the offense and

the date of the state court trial. Since the appellee was unable

to locate the witness at the time of his state trial, there is no

credible reason to believe that the delay on the federal side

placed him in a position less advantageous than he would have

occupied had the indictments been contemporaneous.

The appellee's fallback position is that the delay

prejudiced him by denying him the benefit of running his state and

federal sentences concurrently. This is pure speculation and,

hence, inadequate to the task. See McCoy, 977 F.2d at 711.

At the expense of carting coal to Newcastle, we add that

Stokes also fails on the second prong of the test. By all

accounts, the government temporized until it knew the result of the

In all events Parkman's statements are ambiguous. See
Commonwealth v.
Stokes, 653 N.E.2d at 185. Because proof of actual
prejudice must be definite and not speculative,
see
Acha, 910 F.2d
at 32, this fact, without more, would sink the appellee's argument.

16

state court prosecution. Even then, the government deferred an

indictment because it gave priority to the prosecution of offenders

who, unlike Stokes, were not already in custody.

The government's explanation is plausible and

unimpeached; it should, therefore, be accepted. See
United States

v. Marler, 756 F.2d 206, 215 n.6 (1st Cir. 1985). It indicates

that the government acted out of proper motives and achieved no

undue tactical advantage. For these reasons, Stokes fails to

persuade us that the district court erred in refusing to dismiss

the case based on inordinate preindictment delay.

III. CONCLUSION

We need go no further. It is evident to us that the

district court erred as a matter of law in dismissing the case

prior to trial. Having obtained a valid indictment within the

limitations period, the government is entitled to try the defendant

on the merits. Moreover, we think it best that the case be

transferred to a new trier on remand, and we so direct. See,
e.g,

United
States v. Muniz, 49 F.3d 36, 42-43 (1st Cir. 1995); Cia.

Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 430

(1st Cir. 1985).

Reversed.

17