UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 99-20785 _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

LARRY R. DUNCAN,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (94-CR-211-1) _________________________________________________________________

September 11, 2000

Before WOOD*, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:**

At issue is the authority vel non for the district court’s sua

sponte “in the interests of justice” dismissal of a criminal

indictment, instead of sentencing Larry R. Duncan, found guilty

several years earlier by a jury. We VACATE and REMAND.

* Circuit Judge of the Seventh Circuit, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I.

Duncan was indicted in September 1994 for: conspiracy to

violate the International Emergency Economic Powers Act (IEEPA),

, by shipping prohibited goods to Libya (count

one); violating IEEPA, by aiding and abetting such shipping (count

two); and making a false statement on the shippers’ export

declaration, in violation of

(count three).

A jury trial was held in November 1995. At the close of the

Government’s evidence, Duncan moved for judgment of acquittal. The

motion was granted as to count three, denied as to the others. The

jury found Duncan guilty on those two counts.

Post-verdict, Duncan again moved for judgment of acquittal.

In addition, he moved to dismiss the indictment, contending IEEPA

was, inter alia, an unconstitutional delegation to the Executive of

Congress’ power to enact criminal statutes.

While the motions were pending, a presentence investigation

report (PSR) was prepared. In January 1996, Duncan objected to the

PSR; sentencing was set for February. At that hearing, the court

stated: “[T]he evidence showed that [Duncan] knew [the goods were]

going to Libya and that he ... participated in some elaborate

attempt[] ... to disguise the ultimate destination”. Sentencing

was reset for March, then April.

- 2 - At the April hearing, however, the court delayed sentencing

and instructed the parties to brief the IEEPA constitutionality

issue raised in Duncan’s motion to dismiss. They did so.

As a condition of release, Duncan was required, inter alia, to

actively seek employment, remain in the Southern District of Texas,

report regularly to pretrial services, and surrender his passport.

In November 1996, the court granted Duncan’s request that his

passport be returned so he could work overseas. That December, the

Government moved for a sentencing hearing, noting that the Federal

Public Defender (FPD) objected. By letter to the court, Duncan

stated he would be unavailable, because he had accepted a job in

South America.

As some point, the court ordered Duncan to maintain contact

through correspondence. In May 1998, it entered an order relieving

Duncan of the requirement to report to pretrial services,

retroactive to March 1997.

Duncan continued to correspond with the court. In January

1999, he so advised it he had requested the FPD to prepare “one of

those one line court orders for your signature releasing me from

that ... bond I’m still under”.

In May 1999, approximately three and one-half years after

Duncan’s conviction, the court set sentencing for 12 July 1999.

Duncan failed to appear. Sentencing was reset for the next day.

- 3 - At the court’s request, the FPD, who Duncan had fired, appeared to

represent him.

At that hearing, the court, sua sponte, suggested dismissing

the indictment “in the interest[s] of justice” because, inter alia,

in the light of Duncan’s “five years effective probation”, his

“[c]onviction ... would accomplish nothing”. The FPD had no

objection. The Government objected, but without stating reasons.

Judgment was entered the next day: “In the interests of

justice, counts one and two against Larry R. Duncan are dismissed.

The court having acquitted Duncan on count three, this is a final

judgment”. Prior to entering judgment, the court had not ruled on

either Duncan’s post-verdict motion for judgment of acquittal or

his motion to dismiss.

II.

The brief, above-referenced colloquy at the May 1999

sentencing hearing follows:

THE COURT: We got together after a considerable time at my request to inquire whether after Mr. Duncan’s having been on pretrial release for five years effective probation, whether there is any utility to enter ... a judgment of a conviction and a sentence that will in all likelihood be simply time served. ....

My proposal is that all that would be gained by further proceedings here would be a judgment of conviction which in itself would be disproportionate until the sentence is received by Kirk [and Be]ckford ... of D&[G] Oil Field Services, Petroserve, and Mr. Duncan

- 4 - as the engineering daunts [sic] for the operation has already been extensively punished by having to stand trial and to be under court supervision for five years. Conviction, itself, would accomplish nothing, and I propose to dismiss it in the interest of justice.

Mr. Berg [FPD]?

MR. BERG: No objection.

THE COURT: Mr. Berry [AUSA]?

MR. BERRY: Your Honor, I would respectfully object.

(Emphasis added.)

A.

Duncan contends the Government failed to preserve its

challenge to the dismissal, by failing to specify the bases for its

objection. The Government responds that the sua sponte ruling at

the hearing denied it notice of any basis for which it could make

a more specific objection.

A specific objection is required to permit the court to hear

argument on, and resolve, an issue. E.g., United States v. Burton,

(5th Cir. 1997). But, the court raised the issue

sua sponte; accordingly, the only issue at hand was dismissal vel

non of the indictment “in the interests of justice”; and the

Government objected to such dismissal. The objection was

sufficient.

- 5 - B.

- 6 - We review de novo an “in the interests of justice” dismissal

of an indictment. Cf. United States v. Asibor,

(5th Cir.) (reviewing de novo denial of motion to dismiss

indictment for outrageous Government conduct), cert. denied,

(1997); United States v. Gonzalez,

(5th

Cir. 1996) (reviewing de novo denial of motion to dismiss

indictment on double jeopardy grounds).

The district court cited no authority for dismissing the

indictment. In fact, one circuit has held that, “where the

indictment is legally sufficient”, a “district court may not

dismiss it simply because it deems the dismissal to be in the

interests of justice”. United States v. Carrier,

(2d Cir.) (emphasis added), cert. denied,

(1982).

A possible source of such dismissal-authority is the court’s

supervisory powers. Along this line, the Supreme Court has

identified “three purposes underlying use of” such powers, in the

context of reversing a conviction (not, as here, dismissing an

indictment): “to implement a remedy for violation of recognized

rights; to preserve judicial integrity by ensuring that a

conviction rests on appropriate considerations validly before the

jury; and ... as a remedy designed to deter illegal conduct”.

United States v. Hastings,

(1983) (internal

citations omitted).

- 7 - Assuming arguendo such powers can be used for dismissal of an

indictment “in the interests of justice”, there was no warrant for

doing so here. There is no holding that Duncan’s rights were

violated by the delay between the November 1995 conviction and July

1999 sentencing hearing. See United States v. Abou-Kassem,

(5th Cir.) (seven year delay between conviction and

sentencing not constitutional violation), cert. denied,

(1996). Nor did the court rule that the evidence was

insufficient to convict; the post-verdict motion for judgment of

acquittal premised on that ground was not ruled on. In fact, at

the February 1996 hearing, the court stated the evidence was

sufficient. And, finally, Duncan does not claim the Government

acted illegally in prosecuting him.

III.

For the foregoing reasons, the dismissal is VACATED and this

case is REMANDED for further proceedings.

VACATED AND REMANDED

- 8 -