Appeals from the United States District Court for the Western District of Wisconsin, No. 84-CR-34-S, John C. Shabaz, Judge.
Easterbrook, Ripple, and Kanne, Circuit Judges.
EASTERBROOK, Circuit Judge.
On January 29, 1984, Matthew Granger slew Boyd Spikerman, a guard at a federal prison. Prison officials found Spikerman in a pool of his own blood, stabbed more than a dozen times. Repeated application of a fire extinguisher to Spikerman's head finished the job. Granger, lounging nearby, maintained that he "heard voices and didn't mean to do it." He didn't say whose voices. Prison officials soon concluded that the voices came from other inmates, and that Granger certainly meant "to do it" -- for he had acquired the knife the night before and planned ahead enough to arrange for other prisoners as lookouts.
An indictment charged Granger, Scott A. Fountain, and a third prisoner with first-degree murder of a federal employee, 18 U.S.C. §§ 1111 and 1114, and conspiracy to commit murder, 18 U.S.C. § 1117. According to the indictment, Fountain supplied the knife and was a lookout. Granger and Fountain pleaded guilty on the same day in a joint proceeding under Fed. R. Crim. P. 11. We consolidated the ensuing appeals. We affirmed Granger's conviction but vacated Fountain's, holding that the record did not contain an adequate factual basis for his plea. United States v. Fountain, 777 F.2d 351, 356-57 (7th Cir. 1985). The mandate in Fountain's case issued on January 14, 1986. The Speedy Trial Act provides that the trial must commence "within seventy days from the date the action occasioning the retrial becomes final". 18 U.S.C. § 3161(e). The record did not accompany the mandate; it stayed here because Granger had filed a motion for extension of time to file a petition for rehearing. Before the time to seek rehearing expired, Granger filed a petition for certiorari, which automatically stayed issuance of the mandate. Fed. R. App. P. 41(b). The mandate in Granger's case finally issued on March 28, 1986, and the record went with it. Only then did the district court recognize that Fountain was entitled to plead anew -- but by then the 70 days were gone.
The court re-arraigned Fountain on April 10, 1986, and eight days later he invoked his rights under the Speedy Trial Act, see 18 U.S.C. § 3162. On June 4, 1986, the district court dismissed the 1984 indictment without prejudice. A grand jury returned a fresh indictment the same day; Fountain pleaded not guilty that afternoon. He was later tried, convicted on both counts, and sentenced to life plus 150 years. The evidence at trial showed that Fountain held Spikerman while Granger attacked him. The life sentence for first-degree murder was mandatory under § 1111. The conspiracy statute, § 1117, permitted the court to order imprisonment "for any term of years or for life." The court selected 150 years and added that Fountain would not be eligible for parole for 50 years, invoking 18 U.S.C. § 4205(b)(1).
Fountain challenges every step of this. He insists that the 1984 indictment should have been dismissed with prejudice, that the 1986 indictment was obtained improperly, that the trial was defective, and that the sentence is illegal. We consider his contentions in that order.
Fountain argues with some force that the only effect of the Speedy Trial Act in his case was to postpone his trial. Once everyone realized the problem in late March or early April 1986, the court could have given Fountain a prompt trial. But Fountain's motion to dismiss took the case off the trial calendar. The dismissal, reindictment, and plea in close order on June 4, 1986, simply started a new 70-day period. And as things turned out, motions challenging the procedures used to obtain the 1986 indictment postponed the trial to August 11, 1986. The trial thus occurred 209 days after our mandate issued, more time than would have elapsed if Fountain had accepted the violation of the Speedy Trial Act stoically, indeed probably more time than would have elapsed if there were no Speedy Trial Act. As Fountain sees things, the violation of the Act was at least reckless, and the "remedy" an insult. Only dismissal with prejudice would do, he contends.
One may reply that the new plea on April 10 was taken no later than if we had held the mandate until the final resolution of Granger's case. If Granger had obtained relief from the order affirming his conviction, any further proceedings in Granger's case should have been linked to Fountain's. If the prosecutor had recognized the significance of the staggered issuance of the mandates, the district court doubtless would have granted an exclusion under 18 U.S.C. § 3161(h)(7) (exclusion of a "reasonable period . . . when the defendant is joined for trial with a codefendant as to whom the time for trial has not run"). Section 3161(e), starting the 70 days on "the date the action occasioning the retrial becomes final", creates problems when an action is "final" only in retrospect. The Solicitor General had 60 days to file a petition for a writ of certiorari to review our decision reversing Fountain's conviction, and was entitled to ask for 30 more, see Supreme Court Rule 20.1. McDonald v. Schweiker, 726 F.2d 311 (7th Cir. 1983), holds that a judgment is not "final", starting the 30 days in which to seek attorneys' fees under the Equal Access to Justice Act, until the time to appeal has expired or an appeal, once filed, has been withdrawn; perhaps a similar approach should be employed under § 3161(e). But the prosecutor has not made this argument, and we do not decide cases on the basis of arguments not made and steps not taken. The delay violated the Speedy Trial Act, we must assume. "What might have been" still is of interest when deciding whether the district court lacks discretion to dismiss the indictment without prejudice.
Section 3162(a)(2) allows the district court to dismiss with or without prejudice. The statute lists three things, "among others", for the court's consideration: "the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." An open-ended list of this sort imbues a court with great discretion. When a court must balance incommensurables, when the factors do not have weights, it is hard to identify "error". Such a statute calls for the exercise of sound judgment above all, and appellate review is limited to ensuring that the district court made an informed choice. United States v. Beasley, 809 F.2d 1273, 1278-79 (7th Cir. 1987); Wisconsin Real Estate Investment Trust v. Weinstein, 781 F.2d 589, 597-99 (7th Cir. 1986); Metlyn Realty Cod. v. Esmark, Inc., 763 F.2d 826, 831-32 (7th Cir. 1985). All this means that under the Speedy Trial Act, as so often when Congress prescribes methods rather than outcomes, review on appeal is deferential. E.g., United States v. Janik, 723 F.2d 537, 546 (7th Cir. 1983). See also, e.g., United States v. Silgado-Hernandez, 790 F.2d 1265, 1267 (5th Cir. 1986). One court has held that a "lackadaisical" attitude by prosecutors requires dismissal with prejudice notwithstanding other considerations. United States v. Taylor, 821 F.2d 1377, 1385-86 & n.3 (9th Cir. 1987), cert. granted, 484 U.S. 1025, 108 S. Ct. 747, 98 L. Ed. 2d 760, 56 U.S.L.W. 3482 (U.S. Jan. 19, 1988). Other courts have held that district judges must consider all of the statutory desiderata, e.g., United States v. Melguizo, 824 F.2d 370 (5th Cir. 1987), a position in accord with the practice in our circuit. We therefore inquire not whether the prosecution was careless (it was), but whether the district judge made a reasoned decision in light of the statutory criteria.
The district court looked carefully at the facts of the case and the factors in the statutory list. The court observed that first-degree murder is a grave offense, which calls for dismissal without prejudice. The "penalty" imposed on the prosecutor (and the rest of society) by dismissing with prejudice rises with the seriousness of the crime. Dismissing a misdemeanor with prejudice promotes enforcement of the Speedy Trial Act at smaller cost to potential victims of crime than does dismissing a murder case. Important as it is to enforce the Speedy Trial Act, it is also important to deter murder and punish murderers. Certainly the murder was a more serious offense than the violation of the Speedy Trial Act. As for "facts and circumstances": the violation was inadvertent, and Fountain did not assert his right to a speedy trial in time to alert the prosecutor or the court to the problem. Perhaps he thought delay advantageous. Delay injures the prosecution, after all, as memories fade. The prosecutor bears a heavy burden of persuasion, and the degradation of evidence generally cuts against the party with the burden. A defendant who waits passively while the time runs has less claim to dismissal with prejudice than does a defendant who demands, but does not receive, prompt attention. See United States v. Regilio, 669 F.2d 1169, 1172 (1st Cir. 1981).
Fountain pins his hopes on a claim that the prosecutor "exploited" the delay by gathering new evidence from four witnesses. The facts do not support the contention. The FBI interviewed two of these four in January 1986, while there was still plenty of time. The other two witnesses testified that during April 1986 Fountain boasted to them of his role in killing Spikerman. This evidence, at first glance, is a fruit of forbidden delay. Yet consider the circumstances. Fountain made his admissions to prisoners in the Dane County Jail in Madison, Wisconsin. After the murder Fountain was consigned to the Control Unit of Marion, the nation's most secure prison. He returned to Wisconsin in April 1986 for arraignment and trial. There he met a new group to impress with his exploits. The fact that he started talking on entering a new prison is more significant than the April 1986 date; he would have had the same reason and opportunity if he had been returned in January 1986. We do not think that delay worked to Fountain's detriment. The district court was entitled to dismiss the indictment without prejudice.
That said, we are dismayed by the way this case proceeded and encourage the United States Attorney and the district court to prevent repetitions. Fountain did riot have counsel between the issuance of our mandate and his arraignment on April 10, 1986. His original lawyer had withdrawn, and new counsel were appointed for the appeal in 1985. The appellate lawyers understood their appointment as for appellate purposes only, a plausible construction given the way in which this court recruits lawyers to represent indigent defendants. We obtain great assistance from young lawyers whose education gives them more appellate than trial skills, and who are not necessarily located in the state (or members of the bar of the court) in which proceedings on remand would be conducted. We could not induce (or in good conscience recruit) such lawyers to represent indigent defendants if the appointment entailed an obligation to continue the representation in the district court. Circuit Rule 4 refers to these appointments as "appellate appointments." A district court therefore needs -- and the Western District of Wisconsin lacks -- a method for providing counsel promptly after receiving the mandate in a case like Fountain's. A lawyer might have prevented the problems Fountain encountered.
There is, moreover, no excuse for the prosecution's neglect of this case. The explanation -- that it slipped through the cracks while the record lingered in our court -- suggests that the United States Attorney's office relies on memory rather than a tickler system to ensure compliance with the Speedy Trial Act. Not having a method to log and track cases on remand from this court is a managerial decision, one predictable consequence of which is that some cases will not be tried on time. If the problem in our case recurs, it will not be so easy to chalk it up to inadvertence.
Fountain asked the district court to dismiss the 1986 indictment on three grounds: that the prosecutor used perjured testimony, that the prosecutor neglected to present exculpatory testimony, and that the entire presentation was hearsay.
The supposed perjury was the testimony of Jeffrey Logie, an inmate who appeared before the grand jury in 1984 and inculpated Fountain; the prosecutor gave the 1986 grand jury a copy of Logie's testimony. Michael Stotts, another inmate, has asserted that Logie later told him that Logie's testimony to the 1984 grand jury was false. Thus the charge of perjury. This circuit has reserved the possibility that knowing use of perjured testimony, amounting to the creation of trumped-up charges, might justify the dismissal of an indictment. United States v. Roth, 777 F.2d 1200 (7th Cir. 1985) (discussing earlier cases); United States v. Thomas, 788 F.2d 1250 (7th Cir. 1986). We have not, however, ordered any indictment dismissed on this ground, and therefore have not decided whether to convert these ruminations into a holding. We do not do so here, either, because the use of Logie's testimony is not the "knowing" use of perjury. Logie testified at the trial of Randall Dahlin -- accused of being one of Granger's accomplices -- and denied recanting. Logie's testimony at Dahlin's trial in December 1984 is consistent with the grand jury testimony taken in 1984 and reused in 1986. Logie gave consistent testimony at Fountain's trial in 1986, and the jury evidently believed it. We therefore do not have knowing use of perjury; we do not even have perjury; we have only a (denied) claim of recantation, a depressingly familiar one in any criminal trial involving inmate witnesses. The prosecutor is entitled to present such testimony to the grand jury for whatever it is worth.
The other challenges to the indictment are irrelevant once the petit jury convicted Fountain. We may assume that despite cases such as United States v. Calandra, 414 U.S. 338, 345, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974), Costello v. United States, 350 U.S. 359, 362-63, 100 L. Ed. 397, 76 S. Ct. 406 (1956), and United States v. Murphy, 768 F.2d 1518, 1533-34(7th Cir. 1985), a district judge in an exceptional case may conclude that the prosecutor's use of hearsay (misleading the grand jury about the quality of the evidence) and omission to present exculpatory evidence (misleading the grand jury about the weight of the evidence) requires the government to present its case anew. The function of the grand jury is to screen out cases in which there is not even probable cause to believe a person committed the offense, and it is possible to imagine manipulations of the grand jury that prevent it from fulfilling this mission.*fn1 But the people harined by such misdeeds are the innocent, those exposed to the travail and expense of trial even though they were fated to prevail in the end. Once a person is convicted by the petit jury, we may be confident that a full presentation to the grand jury would have ended in indictment. The trial is a full, adversarial presentation, in which the live witnesses and exculpatory evidence missing in the grand jury come to the fore. The grand jury acts by majority vote and uses a lesser burden; it is impossible to imagine evidence sufficient to produce a conviction at trial that would not also produce an indictment. So it would be silly to reverse a conviction on the ground that the evidence before the grand jury was insufficient. We know that this defendant is not a member of the class that is harmed by sloppy or overbearing conduct before the grand jury. We know that he could be reindicted in a trice (using the record of the trial as a basis), and would be tried anew in the same fashion.
These considerations led the Supreme Court to hold in United States v. Mechanik, 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986), that a violation of Fed. R. Crim. P. 6(d) was not a good reason to reverse a conviction, even on the assumption that it would have been a good reason to dismiss the ...