DAVIS, Circuit Judge.
Charles Brown appeals from his conviction after reindictment for possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) (1982), and for conspiracy to commit that crime, id., § 846. He argues that the United States District Court for the District of Massachusetts violated the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (1982), when it dismissed an earlier indictment for the same offenses without prejudice, instead of with prejudice which would have precluded reprosecution. We hold that the district court did not abuse its discretion by dismissing the prior indictment without prejudice.
Brown and Ernest Middleton, along with two others, were arrested on February 2, 1983 and indicted seven days later. On September 14, 1983, both defendants filed a
On remand, the district court (through the same judge) concluded that the time delay in question was not reasonably necessary for the processing of the pre-trial motions, and both indictments were accordingly dismissed. However, after weighing the appropriate factors, the court held that Brown's case was "sufficiently `exceptional' to warrant dismissal without prejudice to reprosecution" (emphasis in original), while Middleton's case required dismissal with prejudice.
Because Brown's dismissal was without prejudice, he was reindicted on both counts on March 6, 1985. He filed a motion to dismiss asserting that the dismissal of his first indictment should have been with prejudice. That motion was denied, and after a jury-waived trial with stipulated facts before another judge, Brown was found guilty of the same charges as before. On April 12, 1985, he received a sentence of two years on each count, to run concurrently, and credit for the time already served on the earlier sentences which were each six months longer than the current sentences. Brown appeals from that conviction, arguing that the earlier case should have been dismissed with prejudice, thus barring the reindictment.
Appellant contends that this court should apply a strict standard when reviewing the district court's speedy trial dismissal without prejudice. However, determination of whether dismissal shall be with or without prejudice is left to the sound discretion of the trial judge. In United States v. Pringle, 751 F.2d 419, 436 (1st Cir.1984), this court directed "the district court to enter an order granting defendant's motion to dismiss under the Speedy Trial Act, dismissing the indictments either with or without prejudice, as the court believes appropriate under § 3162(a)(2) of the Speedy Trial Act." (Emphasis added.) It is clear from this holding that the application of § 3162(a)(2) is discretionary with the trial judge. This position comports with other circuits' applications of § 3162(a)(2). See United States v. Frey, 735 F.2d 350, 353 (9th Cir.1984) ("the district judge may make the dismissal for noncompliance with the Act either with or without prejudice, in his discretion"); United States v. Russo, 741 F.2d 1264 (11th Cir.1984); United States v. Bittle, 699 F.2d 1201, 1208 (D.C.Cir.1983) ("§ 3162 makes it
Appellant nonetheless argues that a higher standard of review is required here because the district judge was required to pass on his own prior conduct. In Brown I, remand was back to the same trial judge, as may be appropriate when "for a new judge to achieve familiarity [with the case] would require wasteful delay or duplicated effort, or when the original judge has unique knowledge of relevant facts which he might legitimately use to augment the record." O'Shea v. United States, 491 F.2d 774, 779 (1st Cir.1974); cf. Halliday v. United States, 380 F.2d 270, 272-74 (1st Cir.1967), aff'd on other grounds, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). If Congress had specially wanted a new or different judge to pass on speedy trial motions involving scrutiny of the court's own actions, it would have provided for such a procedure. Here, we see no occasion to establish any extra-statutory standard of stricter review for judges passing on their own actions in cases arising under the Speedy Trial Act, or to require a different judge on remand, at least where our own reversal, based as it was on a clarification of the law, was inoffensive.
Appellant also argues that because dismissals without prejudice have no ultimate effect, the only remedy "with any teeth in it for violations of the Act" is a dismissal with prejudice barring reprosecution. Implicit in such an argument is that there exists a presumption in favor of dismissal with prejudice for violations of the Act and that the district court failed to ascribe any weight to such a presumption. As support for this position, appellant cites United States v. Angelini, 553 F.Supp. 367, 370 (D.Mass.1982), where that court held that "to allow a dismissal without prejudice would be to neutralize whatever catalyzing effect the Act might have on the all too patient pace of the criminal justice system," and therefore a presumption of dismissal with prejudice should exist.
There is, however, no mention of any presumption in the clear language of § 3162(a)(2), supra. As exhaustively pointed out in United States v. Caparella, 716 F.2d 976 (2d Cir.1983), review of the legislative history of the Act shows that Congress rejected a sanction of outright dismissal with prejudice and adopted the compromise position which requires balancing the three statutory factors (see supra). While we recognize that the Committee on the Judiciary in the 1979 Amendment to the Act cautioned that the "use of the dismissal without prejudice will be the exception and not the rule," H.R.Rep. No. 390, 96th Cong., 1st Sess. 8-9, reprinted in 1979 U.S.Code Cong. & Ad.News 805, 812-813, it cannot be said that the sanction of dismissal without prejudice is completely negligible. A grand jury may refuse to reindict the defendant or the defendant may even be acquitted at the second trial. United States v. Janik, 723 F.2d 537, 546 (7th Cir.1983). In addition, as in the present case, the length of a sentence after reindictment may be shorter than in the first instance. Above all, the fact is that Congress explicitly and affirmatively decided to make dismissal without prejudice one of
Caparella, supra, 716 F.2d at 980. See also United States v. Russo, 741 F.2d 1264, 1266 (11th Cir.1984) (agreeing with Caparella that neither remedy is preferred).
As pointed out, supra, the Act sets out three independent factors which must be weighed case-by-case to determine which of the two forms of dismissal sanctions should be imposed: (1) the seriousness of the offense; (2) the facts and circumstances which led to the dismissal; and (3) the impact of reprosecution on administration of the Speedy Trial Act and on administration of justice in general. See 18 U.S.C. § 3162(a)(2). We consider in turn the district court's treatment of each factor.
That court found that the two offenses to which Brown pled guilty on the first indictment — distribution and conspiracy to distribute cocaine — are undeniably serious, and consequently they militate in favor of dismissal without prejudice. The amount of cocaine involved in this case was four ounces, with a wholesale value of approximately $10,000. Each offense of which Brown was convicted carried a possible fifteen-year sentence. Nonetheless, appellant concludes that while cocaine distribution is, "when measured on an absolute scale, a serious offense," the seriousness of the offense should be measured on a scale relative to other prosecutions in the district court. Appellant's brief then totals up the number of larcenies, forgeries, counterfeits, robberies and gun cases prosecuted for two years (1982-1983) in the District of Massachusetts and compares them to this "routine drug case." From these facts, appellant concludes that the seriousness of the offense necessarily weighs in favor of dismissal with prejudice. We cannot at all agree. The distribution of a substantial amount of a hard drug like cocaine is a serious and grave offense against society as a whole, and the district court properly found that the offense weighed heavily in favor of dismissal without prejudice.
Turning to the second factor, the district court found that the "facts and circumstances ... which led to the dismissal" weigh in favor of dismissal with prejudice. The court reasoned that the speedy trial violation stemmed from its own failure to anticipate this court's ruling in Mitchell and that closer judicial attention might have precluded such a failure.
With respect to the first part of the final statutory factor to be considered — the impact of reprosecution on the administration of the Speedy Trial Act — the district court found that dismissal without prejudice in this case would have less of an impact on the administration of the Act than under ordinary circumstances since the dismissal was attributable more to a lack of judicial prophecy than to the sort of administrative neglect normally the target of the Act. Appellant counters by citing then Assistant Attorney General Rehnquist's remarks in a 1971 Senate hearing on a proposed speedy trial bill:
A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, 17 (1980).
In this case, the criminal justice system has been "shaken by the scruff of its neck" by the Act itself, the 1979 amendments, this court's Mitchell ruling and its progeny, as well as by Brown I. We do not expect that, after Mitchell, the unnecessary delays which occurred here will be tolerated or are likely to reoccur in this circuit. And if they do occur, Mitchell sets forth the standard by which the court will deal with them.
The district court also found that a dismissal without prejudice would be consistent with the administration of justice. We cannot say that this was wrong. The length of time by which the Act's limit was exceeded (i.e., 35 days) was not exorbitant. Appellant presented no evidence that he suffered any actual prejudice by the dismissal without prejudice. See United States v. Bittle, 699 F.2d 1201, 1208 (D.C.Cir.1983) (prejudice to a defendant may be one of the factors to be considered). The crimes charged were serious and the proper administration of justice calls for their prosecution.
The sum of it is that the district court properly exercised its discretion under the factors set forth in § 3162(a)(2) and in determining that the previous indictment should have been dismissed without prejudice. The judgment of the district court convicting Brown on the basis of his reindictment is accordingly affirmed.