FILED

United States Court of Appeals

Tenth Circuit

April 12, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v. No. 09-2163

JOHNNY BEGAY,

 Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 1:CR–07-01556-MCA)

David N. Williams, Assistant United States Attorney (Gregory J. Fouratt, United

States Attorney, with him on the briefs), Albuquerque, New Mexico, for PlaintiffAppellant.

Margaret A. Katze, Assistant Federal Public Defender, Office of Federal Public

Defender, Albuquerque, New Mexico, for Defendant-Appellee.

Before BRISCOE, McWILLIAMS, and TYMKOVICH, Circuit Judges.

BRISCOE, Circuit Judge.

In this interlocutory appeal, the government challenges the district court’s

order dismissing with prejudice, pursuant to Fed. R. Crim. P. 48(b)(1), a

superseding indictment charging defendant Johnny Begay with multiple counts of

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 Rule 414, entitled “Evidence of Similar Crimes in Child Molestation

Cases,” provides, in pertinent part, that “[i]n a criminal case in which the

defendant is accused of an offense of child molestation, evidence of the

defendant’s commission of another offense or offenses of child molestation is

(continued...)

2

aggravated sexual abuse of a child in Indian Country, and directing the parties to

proceed to trial on the original indictment, which charged Begay with a single

count of aggravated sexual abuse of a child in Indian Country. Exercising

jurisdiction pursuant to 18 U.S.C. § 3731, we reverse the decision of the district

court and remand for further proceedings on the superseding indictment.

I

On July 25, 2007, a federal grand jury indicted Begay on one count of

aggravated sexual abuse of a child in Indian County, in violation of 18 U.S.C. §§

1153, 2241(c) and 2246(3). The indictment alleged that 

[b]etween on or about March 1, 2006, and April 30, 2006, in Indian

Country, in San Juan County, in the State and District of New

Mexico, the defendant, JOHNNY BEGAY, an Indian, knowingly

engaged and attempted to engage in sexual contact with Jane Doe, an

Indian child who had not attained the age of twelve years, and the

sexual act consistent of intentional penetration of the genital opening

of Jane Doe by a hand or finger or by any object with an intent to

abuse, humiliate, harass, degrade, or arouse or gratify the sexual

desire of any person.

App., Case No. 08-2149, at 7. 

In preparation for trial, the government filed a motion in limine seeking

approval from the district court to introduce at trial, pursuant to Rule 414 of the

Federal Rules of Evidence1

, evidence of three categories of prior sexual

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1

(...continued)

admissible, and may be considered for its bearing on any matter to which it is

relevant.” Fed. R. Evid. 414(a).

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molestation committed by Begay. The first category of proposed evidence

involved testimony from the victim identified in the indictment, Jane Doe,

regarding “previous sexual assaults” committed against her by Begay. Id. at 9. 

More specifically, the government indicated, Jane Doe would testify that Begay

“assaulted her over twenty times” “when she was between the ages of 7 and 11.” 

Id. The second category of proposed evidence involved testimony from Jane Doe

regarding Begay’s molestation of her younger sister, whom the government

identified as Jane Doe #2. According to the government, Jane Doe would testify

“that the defendant assaulted Jane Doe #2 on at least one occasion.” Id. The

third category of proposed evidence involved testimony from the mother of Jane

Doe and Jane Doe #2 regarding Begay’s molestation of her when she “was 11-12

years old.” Id. The government indicated that the mother would testify that

Begay “assaulted her three or four times.” Id. at 10. The government argued that

“[t]he manner of sexual assault in all previous instances” was “similar to the

charged offense, in that the defendant sexually assaulted the victims at home,

during the night while the victims were in bed and no other adults were present.” 

Id.

Begay opposed the government’s motion, arguing that “[a]ll the accusations

[we]re extremely prejudicial,” and that “[i]t [wa]s very likely they w[ould]

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contribute to an improperly-based verdict, distract the jury from the central issue

of the truth of the indictment charge, and consume way too much time at trial.” 

Id. at 15. 

On July 2, 2008, the district court held a hearing on the government’s

motion, during which both Jane Doe and her mother testified. The following day,

the district court issued a memorandum opinion and order denying the

government’s motion. Although the district court agreed with the government

that the proposed evidence was relevant and admissible under Rule 414, it

nevertheless concluded that each of the three categories of proffered evidence

were more prejudicial than probative. 

Immediately following issuance of the district court’s order, the

government filed an interlocutory appeal challenging that order. This court, in an

unpublished order and judgment issued on February 9, 2009, affirmed the district

court’s order. United States v. Begay, No. 08-2149, 2009 WL 30828 (10th Cir.

Feb. 9, 2009). This court’s mandate issued on March 3, 2009.

On April 9, 2009, a federal grand jury returned a superseding indictment

charging Begay with seven counts of aggravated sexual abuse of a child in Indian

County, in violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2)(c). All seven

counts involved the same victim as the original indictment, Jane Doe, and all

seven counts alleged that Begay “intentionally engaged in the penetration,

however slight, of the [victim’s] genital opening . . . by a hand or finger or by any

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 The superseding indictment did not include any counts regarding any

alleged molestation by Begay of Jane Doe’s sister or mother.

3

 Count 2 represents the count from the original indictment, albeit with a

slightly narrowed time frame.

5

object with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the

sexual desire of any person.”2

 App. at 31-32. The counts differed only in the

dates of the alleged acts: (1) Count 1 allegedly occurred “between May 1, 2006,

and May 31, 2006,” id. at 31; (2) Count 2 allegedly occurred “between March 1,

2006, and April 20, 2006,”3

 id.; (3) Count 3 allegedly occurred “between January

29, 2006, and February 2, 2006,” id. at 32; (4) Count 4 allegedly occurred

“between January 29, 2006, and February 2, 2006,” id.; (5) Count 5 allegedly

occurred “between June 28, 2004, and July 5, 2004,” id. at 33; (6) Count 6

allegedly occurred “between December 1, 2003, and December 31, 2003,” id.; and

(7) Count 7 allegedly occurred “between August 1, 2000, and August 31, 2000,”

id.

On April 27, 2009, Begay moved to dismiss the superseding indictment

“with prejudice . . . on the grounds that the government engaged in excessive

delay in obtaining that indictment, warranting dismissal by virtue of the Due

Process Clause and Federal Rule of Criminal Procedure 48(b)(1).” Id. at 35. 

According to Begay, “[t]he superseding indictment [wa]s a blatant attempt to

circumvent [the district court’s] ruling . . . that the government would not be

allowed to introduce evidence of [his] alleged sexual contact with Jane Doe

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outside the two-month time period alleged in the original indictment.” Id. at 36. 

Begay further argued that “[t]he government could have brought the supersedingindictment charges at the same time as it brought the single charge in the original

indictment,” but that “[i]t delayed doing so for more than a year and a half to

garner a tactical advantage in its prosecution of [him].” Id. Lastly, Begay argued

that he was prejudiced by the government’s tactics:

 With the superseding indictment in place, . . . Begay now faces

the same unfairly prejudicial circumstances he faced when the

government sought to introduce Jane Doe’s allegations that . . .

Begay sexually assaulted her over the course of six years on multiple

occasions. Cumulative charges may very well lead the jury to

believe . . . Begay is guilty of something. The very real danger

exists that the piling on of allegations upon allegations will

overwhelm the jury and result in an unwarranted guilty verdict on

one or more of the counts. The government will then doubtless

attempt to obtain enhancement of . . . Begay’s sentence by virtue of

the conduct alleged in any acquitted counts. In addition, while not

by itself substantial prejudice, the inevitably fading memories of the

defense witnesses regarding the allegations that reach back to 2000,

also impedes . . . Begay’s defense. The more-than-two-and-half-year

[sic] delay has enabled the government to create this situation that

has substantially increased the chance of a guilty verdict, despite . . .

Begay’s innocence.

Id. at 44.

The district court held a hearing on Begay’s motion on June 8, 2009, and

then took the matter under advisement. On June 18, 2009, the district court

issued a memorandum opinion and order granting Begay’s motion. The district

court noted that the government had conceded at the hearing on Begay’s motion

“that the information underlying the allegations that ma[d]e up the seven counts

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of the [superseding indictment] [wa]s information that was known to it as early as

September 14, 2006, the date of Jane Doe’s forensic interview.” Id. at 83. In

turn, the district court concluded that 

common sense dictate[d] that if the government believed it had

evidence to support the additional six counts that appear in the

[superseding indictment], it would have charged all seven counts in

the original [indictment] instead of seeking the admission of these

alleged prior instances of sexual abuse under Rule 414, and then

recasting them as charged offenses only after an unsuccessful appeal.

Id. at 84.

Turning to Begay’s legal arguments, the district court first concluded that,

notwithstanding its findings regarding the government’s conduct, Begay had

failed to show “that he ha[d] suffered actual prejudice from the [government’s]

delay, such that the [superseding indictment] [could] be dismissed on due process

grounds.” Id. at 85. However, the district court concluded “that because the

government ha[d] engaged in unnecessary delay in presenting to a grand jury the

charges comprising the [superseding indictment], the [superseding indictment

should] be dismissed pursuant to Rule 48(b)(1) of the Federal Rules of Criminal

Procedure, as [it] [wa]s simply not persuaded the government’s reasons for the

delay [we]re valid.” Id. at 86 (citing United States v. Goodson, 204 F.3d 508,

513 (4th Cir. 2000)). In support of this conclusion, the district court stated it was

“not persuaded that investigative delay [wa]s what kept the government from

superseding the indictment until after it experienced an unsuccessful appeal;

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rather, [it] believe[d] that the delay was undertaken to gain a tactical advantage

over . . . Begay.” Id. at 87. In other words, the district court stated it was “not

convinced that the government delayed superseding the [indictment] for any

reason other than to preserve for itself a weapon to use against . . . Begay in the

event its motion to introduce evidence of alleged prior instances of sexual abuse,

and the subsequent appeal from the denial thereof, fell short, which is precisely

what happened.” Id. at 89. 

Based upon its findings and conclusions, the district court dismissed the

superseding indictment “pursuant to Rule 48(b)(1) of the Federal Rules of

Criminal Procedure” and directed that the trial “proceed upon the original onecount [indictment] of July 25, 2007.” Id.

II

The government has filed this interlocutory appeal to challenge the district

court’s dismissal of the superseding indictment under Federal Rule of Criminal

Procedure 48(b)(1). That Rule provides, in pertinent part, that “[t]he court may

dismiss an indictment . . . if unnecessary delay occurs in . . . presenting a charge

to a grand jury . . . .” Fed. R. Crim. P. 48(b)(1). “A dismissal under Rule 48(b),

whether it be on motion or sua sponte, is a matter addressed to the sound

discretion of the trial court . . . .” United States v. Barney, 550 F.2d 1251, 1254

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 “[M]uch of the case law applying Rule 48 standards predates the Speedy

Trial Act,” which was “adopted in 1975[, became] fully effective in 1980, [and]

created a rather comprehensive set of rules to regulate delay in federal

prosecutions.” 3B Charles Alan Wright, Nancy J. King, and Susan R. Klein,

Federal Practice and Procedure, § 814 at 343 (3d ed. 2004).

9

(10th Cir. 1977).4 Consequently, we review the district court’s decision in this

case for an abuse of discretion. Id.

The phrase “unnecessary delay,” as used in Rule 48(b), is not specifically

defined in Rule 48 or elsewhere in the Federal Rules of Criminal Procedure. But

the Advisory Committee Notes accompanying the adoption of Rule 48 are

instructive in helping us understand the meaning of this phrase. Those Notes

indicate that Rule 48(b) was intended as “a restatement of the inherent power of

the court to dismiss a case for want of prosecution.” 1944 Advisory Committee

Notes on Adopting Rule 48 (emphasis added). In other words, the Advisory

Committee did not intend Rule 48(b) as an all-encompassing grant to district

courts of supervisory authority over the prosecution of criminal cases, but rather

as a recognition of a district court’s power to dismiss a case that the government

has failed to prosecute in a timely manner. Cf. Carlisle v. United States, 517 U.S.

416, 426 (1996) (“Whatever the scope of this ‘inherent power,’ however, it does

not include the power to develop rules that circumvent or conflict with the

Federal Rules of Criminal Procedure.”). Construed in this manner, Rule 48(b)(1)

is consistent with the well established rule that, “[a]bsent prejudice to the

defendant, a superseding indictment may be filed at any time before trial,” United

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States v. Wilks, 629 F.2d 669, 672 (10th Cir. 1980); see United States v. Trahan,

333 F. App’x 818, 819, 2009 WL 1576839 at *1 (5th Cir. June 5, 2009)

(concluding that the discretion afforded a district court by Rule 48(b) is

necessarily “constrained by long-standing authority holding that a superseding

indictment may be filed at any time before trial on the merits.”), and is

appropriately deferential to the “core executive constitutional function” of

designing and pursuing criminal prosecutions. United States v. Armstrong, 517

U.S. 456, 465 (1996).

In purporting to exercise its authority under Rule 48(b)(1), the district court

in this case determined that the government had delayed in obtaining the

superseding indictment against Begay because “the information underlying the

allegations” of the superseding indictment “was known to [the government] as

early as September 14, 2006, the date of Jane Doe’s forensic interview.” App. at

83. The district court further found “that the government delayed obtaining the

[superseding indictment] in an effort to gain a tactical advantage over . . . Begay,”

i.e., “it was not until” the government’s motion in limine was denied by the

district court and that ruling affirmed on appeal “that the government superseded

the indictment, recasting at least some of th[e] alleged prior instances as charged

offenses.” Id. at 82. Although the district court found that Begay failed to

establish “that he ha[d] suffered actual prejudice from the [government’s] delay”

in filing the superseding indictment, id. at 85, it nevertheless dismissed the

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superseding indictment with prejudice because it was “not persuaded the

government’s reasons for the delay [we]re valid,” id. at 86.

Accepting the district court’s factual findings as correct, we conclude the

district court abused the discretion afforded to it under Rule 48(b)(1) in

dismissing the superseding indictment. Although it is true that the government

“delayed” seeking the superseding indictment in the sense that it had been privy

for some time to the evidence underlying each count of the superseding

indictment, nothing in the record establishes that this was the type of

“unnecessary delay” envisioned by Rule 48(b)(1). To the contrary, the record

firmly establishes that the government has aggressively, but fairly, pursued the

prosecution of Begay.

Further, the district court offered no authority for its conclusion that it was

improper for the government to respond in a tactical manner after its unsuccessful

interlocutory challenge to the district court’s denial of its motion in limine. And,

indeed, the case law clearly supports a contrary conclusion. “Prosecutorial

charging decisions,” “rarely simple” in nature, “are not readily susceptible to the

kind of analysis the courts are competent to undertake . . . .” Town of Newton v.

Rumery, 480 U.S. 386, 396 (1987) (internal quotation marks omitted). 

Consequently, the Supreme Court has repeatedly emphasized that courts are not

“permit[ted] . . . to abort criminal prosecutions simply because they disagree with

a prosecutor’s judgment as to when to seek an indictment,” or “to impose on law

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 Proof of vindictiveness in obtaining a superseding indictment would

establish a due process violation. See United States v. Goodwin, 457 U.S. 368,

384 (1982).

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enforcement officials [their] personal and private notions of fairness . . . .” 

United States v. Lovasco, 431 U.S. 783, 790 (1977) (internal quotation marks

omitted). Likewise, we have emphasized that it is the prerogative of “the

executive branch to design a criminal prosecution in the way it deems most

prudent.” United States v. Schneider, 594 F.3d 1219, 1226 (10th Cir. 2010). 

To be sure, dismissal of a superseding indictment can be based upon

prosecutorial vindictiveness in seeking heightened charges.5

 See United States v.

Wall, 37 F.3d 1443, 1447 (10th Cir. 1994) (“In a claim of prosecutorial

vindictiveness, the defendant bears the burden of proving either (1) actual

vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise

to a presumption of vindictiveness.”) (internal quotation marks omitted); see also

United States v. Barner, 441 F.3d 1310, 1316 (11th Cir. 2006) (holding that

“proof of a prosecutorial decision to increase charges after a defendant has

exercised a legal right does not alone give rise to a presumption [of

vindictiveness] in the pretrial context.”) (internal quotation marks omitted;

emphasis in original). At no point in this case, however, did Begay allege, nor

did the district court find, that the government acted vindictively in obtaining the

superseding indictment. Thus, the district court’s order of dismissal was clearly

not grounded on prosecutorial vindictiveness. 

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In sum, it was entirely proper for the government, absent prosecutorial

vindictiveness or prejudice to Begay, to alter its tactics in response to the rulings

on its proffered Rule 414 evidence and seek a superseding indictment that

included additional charges of molestation. 

The order of the district court dismissing the superseding indictment with

prejudice is REVERSED and the case REMANDED for further proceedings on

the superseding indictment.

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