United States v. Scantlebury

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2019 Decided April 16, 2019

No. 18-3043

UNITED STATES OF AMERICA,

APPELLEE

v.

JOHN WAYNE SCANTLEBURY, ALSO KNOWN AS FREDERICK

DAVIS, ALSO KNOWN AS JOHN WAYNE TROTMAN,

APPELLANT

Consolidated with 18-3044

Appeals from the United States District Court

for the District of Columbia

(No. 1:04-cr-00285-3)

(No. 1:04-cr-00285-4)

Lawrence J. Joseph argued the cause and filed the briefs

for appellants.

Vijay Shanker, Attorney, U.S. Department of Justice,

argued the cause and filed the brief for appellee.

Before: PILLARD and KATSAS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: In 2004, Appellants,

John Wayne Scantlebury (“Scantlebury”) and Sean Gaskin

(“Gaskin”), who are residents of Barbados, along with another

Barbadian resident – Frederick Christopher Hawkesworth

(“Hawkesworth”) – and two Guyanese residents, were indicted

by a grand jury in Washington, D.C., for conspiracy to traffic

cocaine. Scantlebury, Gaskin, and Hawkesworth (who is now

deceased) all challenged extradition to the United States. The

disputes over extradition lasted for over nine years. Finally, in

December 2013, the U.S. Government moved to dismiss the

charges against Scantlebury, Gaskin, and Hawkesworth

without prejudice, citing “the age of the case, government

resources, and other factual and legal issues which indicate the

case is no longer viable.” Joint Appendix (“J.A.”) 41. The

District Court granted the Government’s motion to dismiss on

January 9, 2014.

Appellants argue that prosecutors in the United States

knew for years, well before they moved to dismiss the charges,

that the cases had “cratered” and that there was no probable

cause to support the indictments. Appellants therefore assert

that the District Court should have dismissed the indictments

with prejudice. On appeal, Appellants seek a remand to the

District Court with instructions to dismiss the charges with

prejudice. The Government in turn contends that this court has

no basis upon which to entertain this appeal. We agree with the

Government.

First, we are bound by the Supreme Court’s decision in

Parr v. United States, 351 U.S. 513 (1956). In Parr, the Court

held that, without more, a criminal defendant whose indictment

is dismissed without prejudice is not aggrieved and, therefore,

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has no standing to appeal. Id. at 516–17. Second, even

assuming, arguendo, that the threat of subsequent prosecution

might be sufficient in some cases to support an appeal of a

dismissal without prejudice, the statute of limitations has run

on the charges against Appellants, so the question is moot.

Third, Appellants assert ongoing reputational injuries allegedly

caused by their arrest and indictment records. But they lack

standing to pursue these claims because dismissing the

indictment with prejudice would not redress the alleged

reputational harms. Finally, we hold that the court lacks

jurisdiction to consider Appellants’ request for declaratory

relief.

I. BACKGROUND

The U.S. Government began investigating Hawkesworth

for cocaine trafficking in 2000. The Government suspected that

Raphel Douglas (“Douglas”) and Terrence Sugrim (“Sugrim”)

were supplying cocaine from Guyana to Hawkesworth. And

Appellants were suspected of assisting Hawkesworth in an

international drug trafficking operation that distributed cocaine

in Barbados and transported cocaine from Barbados and

Guyana to the United States.

As part of its investigation, the Government worked with

an unnamed confidential informant. The informant allegedly

spoke with Appellants and Hawkesworth on several occasions

and made plans to help them transport cocaine to the United

States.

In 2004, a federal grand jury in Washington, D.C.,

returned a two-count indictment against Scantlebury, Gaskin,

Hawkesworth, Douglas, and Sugrim. The first count alleged

that all five defendants had conspired to distribute more than

five kilograms of cocaine. The second count alleged that

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Hawkesworth and Douglas distributed 500 grams or more of

cocaine. With respect to Appellants specifically, the indictment

alleged that they “obtained false identification cards and

documents in order to travel to the United States to facilitate

the importation of cocaine from Barbados, Guyana and

elsewhere into the United States.” J.A. 35. The indictment

stated that Hawkesworth was the leader of the organization,

which had allegedly shipped 184 kilograms of cocaine from

Guyana to JFK Airport in New York City. The indictment also

alleged that Scantlebury and Gaskin met with the informant to

discuss whether contacts were in place for a test shipment of

cocaine and that the informant provided Scantlebury and

Gaskin with fake identification cards.

Following indictment, the Government sought extradition

of Scantlebury, Gaskin, and Hawkesworth from Barbados and

Douglas and Sugrim from Guyana. Douglas was extradited, but

Sugrim was never taken into custody. The three Barbadian

defendants were arrested by Barbadian law enforcement

officials, but they challenged extradition and remained in

Barbados. All three were released on bail in late 2004 or early

2005. Then, for reasons that are not indicated in the record,

their bail was revoked and they returned to jail in Barbados in

2011. Scantlebury, Gaskin, and Hawkesworth remained

incarcerated in Barbados from 2011 until the indictments were

dismissed on January 9, 2014.

In support of its requests for extradition from Barbados,

the U.S. Government submitted affidavits written by a Senior

Trial Attorney in the Criminal Division of the Department of

Justice (“Trial Attorney”), a Drug Enforcement Administration

(“DEA”) special agent, and the confidential informant. The

Trial Attorney’s affidavit stated that the evidence against the

defendants included the testimony of the confidential

informant and of DEA agents, audio and video recordings of

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conversations, photographs, telephone records, passport

records, airline records, and seized cocaine. The DEA special

agent’s affidavit stated that 184 kilograms of cocaine, packed

in a shipment of frozen seafood, was seized at JFK Airport on

September 20, 2003, and that, later that day, the confidential

informant met with Sugrim and Hawkesworth, who said that

they had lost a load of 180 kilograms of cocaine that had been

shipped to JFK. The DEA affidavit also noted that the

confidential informant “was told that nobody was arrested.”

J.A. 132. In addition, the DEA affidavit noted that the

confidential informant had worked with the DEA for

approximately five years and had proven to be “completely

reliable.” Id. at 129.

In support of its request for extradition of Douglas, U.S.

Government officials made several additional statements

attesting to the reliability of the confidential informant. Id. at

160. Douglas was extradited from Trinidad to the United States

in October 2005. It was later determined, however, that several

of the Government’s claims made in support of the confidential

informant’s reliability were not true. See id. at 225–31. In

February 2007, the U.S. Government moved to dismiss without

prejudice the District of Columbia indictment against Douglas.

The motion was granted by the District Court.

The Government subsequently filed a second indictment

against Douglas, Hawkesworth, and Sugrim in the Eastern

District of New York on narcotics and use of telephone

charges. In the New York case, the Government acknowledged

that there were inaccuracies in the materials that it had

submitted supporting Douglas’s extradition. Douglas

ultimately pled guilty to a telephone charge and was sentenced

to time served. See id. at 276.

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In November 2013, Gaskin consented to extradition to the

United States, but he was never extradited. Instead, on

December 24, 2013, the U.S. Government filed a motion to

dismiss without prejudice the District of Columbia indictment

against Scantlebury, Gaskin, Hawkesworth, and Sugrim

pursuant to Rule 48(a) of the Federal Rules of Criminal

Procedure (“Rule 48(a)”). The Government explained that its

motion was made “in good faith” based on “the age of the case,

government resources, and other factual and legal issues which

indicate the case is no longer viable.” Id. at 41. Approximately

two weeks later, on January 9, 2014, the District Court granted

the Government’s motion and the defendants were released

from Barbadian custody. See id. at 345.

In 2015, the Barbadian defendants filed civil actions

against the United States and certain federal officers. See

Complaint, Gaskin v. United States, No. 15-cv-23-EGS

(D.D.C. Jan. 8, 2015); Complaint, Gaskin v. May, No. 15-cv-

33-EGS (D.D.C. Jan. 9, 2015). The criminal case arising out of

the District of Columbia indictment was subsequently unsealed

in September 2015. See J.A. 20–21. In February 2016, the

Barbadian defendants moved in the criminal case for alteration

of the dismissal of the indictment from a dismissal without

prejudice to a dismissal with prejudice. See id. at 46–92. The

defendants argued that they were innocent of the charges in the

indictment, that the charges harmed their reputations, and that

the Government had committed prosecutorial misconduct by

swearing to inaccurate statements and failing to timely notify

the Barbadian government when the case against the

defendants fell apart. Id. The motion did not request

expungement of the records of arrest or indictment. Instead, the

defendants merely sought to “reserve the right to seek the lesser

relief” of expungement if the motion requesting dismissal with

prejudice was denied. Id. at 90. Defendant Hawkesworth

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passed away before the District Court ruled on the motion. See

id. at 24.

The District Court denied the motion to alter the dismissal

without prejudice to a dismissal with prejudice, concluding that

dismissal with prejudice was not warranted because the

defendants “failed to rebut the presumption that the

government sought dismissal in good faith and because the

circumstances here do not rise to the level of being

exceptional.” Id. at 357. The District Court acknowledged that

the defendants had reserved the right to seek expungement and

stated that it would “address any such request [for

expungement]” if “movants [sought] additional relief

following the Court’s decision on the pending motions.” Id. at

366. Appellants moved for reconsideration of the District

Court’s denial of their motion to alter the dismissal without

prejudice to a dismissal with prejudice. Their request for

reconsideration was denied. Appellants never filed a motion

with the District Court seeking expungement. This appeal

followed.

II. DISCUSSION

Appellants assert that this court has jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291, which gives the courts of

appeals jurisdiction over “all final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. Appellants

acknowledge that their standing to appeal is dubious under

Parr, 351 U.S. at 516, and also Lewis v. United States, 216 U.S.

611, 612 (1910) (per curiam) (holding that when a criminal

defendant is “discharged from custody he is not legally

aggrieved and therefore cannot appeal”). See Appellants’ Br. at

27. Appellants argue, however, that they have suffered

“ongoing reputational injury from the indictment . . . and thus

[have] standing to seek to convert the dismissal without

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prejudice into a dismissal with prejudice that would exonerate

them of wrongdoing and redress those ongoing injuries.” Id. at

28–29.

The Government contends that “[t]his Court should

dismiss the appeal for lack of appellate jurisdiction.”

Appellee’s Br. at 13. In support of this position, the

Government asserts, first, that “[t]he Supreme Court has

squarely held that the dismissal of an indictment without

prejudice is not an appealable order”; second, “[a] defendant

whose indictment is dismissed is not injured by that ruling,

even if he still faces potential prosecution, suffered reputational

harm from the indictment, and was deprived of liberty as a

result of the charges”; and, finally, that “[a] dismissal without

prejudice [] is an interlocutory order” that is subject to review

only “after trial on a new indictment, conviction, and

sentencing.” Id. at 13–14.

The matters at issue in this case concern the jurisdiction of

the court. Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986) (“[E]very federal appellate court has a special

obligation to satisfy itself . . . of its own jurisdiction.”) (internal

quotation marks omitted). Therefore, we address the issues de

novo. See Safari Club Int’l v. Jewell, 842 F.3d 1280, 1285

(D.C. Cir. 2016).

On the record before us, we hold that this court has no

basis upon which to entertain this appeal. Appellants lack

standing to appeal because they were not aggrieved by the

dismissal without prejudice; the statute of limitations has run

on the charges against Appellants, so the question regarding

whether they face a threat of subsequent prosecution is moot;

and they have asserted no viable grounds for redress of their

alleged reputational injuries. In light of these holdings, we need

9

not decide whether the District Court’s dismissal without

prejudice was “final” for the purposes of § 1291.

A. Appellants Lack Standing to Appeal for Lack of

Aggrievement

Federal courts may not adjudicate cases unless the parties

have a personal stake in the suit, not only at the outset of the

litigation but at each successive stage as well. See Camreta v.

Greene, 563 U.S. 692, 701 (2011). One element of that inquiry

is whether, at each stage of the litigation, the party seeking

relief can establish the “invasion of a legally protected

interest.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

In Parr, the Court held that a defendant whose indictment has

been dismissed without prejudice is not aggrieved so as to

support standing to appeal. 351 U.S. at 516–17.

The defendant-appellant in Parr obtained a transfer of the

indictment against him to another division within the same

district on grounds of local prejudice. Id. at 514. The

Government then dismissed that indictment and filed a new

indictment in another district. Id. at 515. Parr appealed the

dismissal without prejudice, but the Supreme Court held that

Parr could not appeal unless and until he was convicted and

sentenced. Id. at 516–18.

Taking the initial, dismissed indictment in isolation, the

Court held that Parr could not appeal the dismissal for want of

standing:

If the Corpus Christi indictment is viewed in isolation

from the Austin indictment, an appeal from its

dismissal will not lie because petitioner has not been

aggrieved. Only one injured by the judgment sought

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to be reviewed can appeal, and, regarding the Corpus

Christi proceeding as a separate prosecution,

petitioner has not been injured by its termination in

his favor. So far as petitioner’s standing to appeal is

concerned, it makes no difference whether the

dismissal still leaves him open to further prosecution,

or whether, as petitioner contends, it bars his

prosecution elsewhere than in Laredo because the

transfer order operated to give him a vested right to be

tried only there. The testing of the effect of the

dismissal order must abide petitioner’s trial, and only

then, if convicted, will he have been aggrieved.

Id. at 516–17 (citations omitted).

Thus, the Court’s holding in Parr indicates that, as a

general matter, a criminal defendant is not injured, and thus

lacks standing to challenge a dismissal without prejudice,

unless and until he is subsequently convicted. See also United

States v. Martin, 682 F.2d 506, 507 (5th Cir. 1982) (per curiam)

(“Any testing of the dismissal order must abide the outcome of

a trial on the issue of guilt. Then, if convicted, the defendants

may be aggrieved.”).

Appellants argue that, since the decisions in Lewis and

Parr, “federal courts have expanded their appreciation of what

constitutes an Article III injury . . . so a century later ‘an appeal

brought by a prevailing party may satisfy Article III’s case-or-

controversy requirement.’” Appellants’ Br. at 28 (quoting

Camreta, 563 U.S. at 702). Appellants’ cited authority is

inapposite to this case.

Camreta, for example, was a civil case involving qualified

immunity. As the Court explained, “a state child protective

services worker and a county deputy sheriff interviewed a girl

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at her elementary school in Oregon about allegations that her

father had sexually abused her. The girl’s mother subsequently

sued the government officials on the child’s behalf for damages

under Rev. Stat. § 1979, 42 U.S.C. § 1983, claiming that the

interview infringed the Fourth Amendment.” 563 U.S. at 697.

The Court of Appeals ruled that the public officials had

violated the Constitution, but that qualified immunity protected

the officials from liability.

The Supreme Court held that the public officials in

Camreta had standing to seek review because they retained a

“necessary personal stake in the appeal,” given that the ruling

could still “have prospective effect on the parties.” Id. at 702.

The Court explained:

[The] Article III standard often will be met when

immunized officials seek to challenge a ruling that

their conduct violated the Constitution. That is not

because a court has made a retrospective judgment

about the lawfulness of the officials’ behavior, for that

judgment is unaccompanied by any personal liability.

Rather, it is because the judgment may have

prospective effect on the parties. The court in such a

case says: “Although this official is immune from

damages today, what he did violates the Constitution

and he or anyone else who does that thing again will

be personally liable.” If the official regularly engages

in that conduct as part of his job (as Camreta does), he

suffers injury caused by the adverse constitutional

ruling. So long as it continues in effect, he must either

change the way he performs his duties or risk a

meritorious damages action.

563 U.S. at 702–03.

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In Camreta, the defendants had the “necessary personal

stake” in the outcome of the appeal because they would be

compelled to alter their future conduct to comply with the

judgment. Appellants have not argued that they have been

affected similarly in this case, nor do they have any basis upon

which to do so.

The Government also argues that Appellants cannot appeal

the dismissal without prejudice because it does not constitute a

final decision for the purposes of 28 U.S.C. § 1291. In Parr,

the Court held that the appeal was premature because the

subsequent indictment was still pending at the time of appeal.

See Parr, 351 U.S. at 518–19. In so doing, the Court broadly

stated that “[f]inal judgment in a criminal case means

sentence.” Id. at 518 (quoting Berman v. United States, 302

U.S. 211, 212 (1937)).

In this case, however, unlike Parr, no subsequent

indictment was handed down. And the statute of limitations on

the charge against Appellants expired before oral argument. At

oral argument, counsel for the Government confirmed that the

Government would not seek a further indictment. Therefore,

the judgment in this case is as final as it will ever be. Under

these circumstances, there is reason to doubt whether Parr’s

finality holding is applicable.

The Supreme Court in Parr took pains to address the first

and second indictments in that case independently, treating the

first, dismissed indictment as unappealable for lack of injury,

while separately holding that the subsequent indictment was

not yet appealable for lack of finality. And at least one of our

sister circuits has made the same distinction. See United States

v. Moller-Butcher, 723 F.2d 189, 191 (1st Cir. 1983) (“If [the

defendant] is not reindicted, it will never have suffered injury

as a result of the dismissal. If, on the other hand, [the defendant]

13

is reindicted, then the dismissal is an intermediate step in the

prosecution which may be reviewed only after final judgment

in the case.”).

It is unnecessary for us to decide whether Parr’s finality

holding applies to this case. On the record before us, it is clear

that, under Parr, Appellants were not aggrieved by their

dismissals without prejudice. Therefore, they have no standing

to pursue this appeal.

B. Appellants’ Challenges to the Dismissals of Their

Indictments Without Prejudice Are Moot

We also lack jurisdiction over this appeal because the

claims raised by Appellants are moot. “When ‘subsequent

events ma[ke] it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur,’ we have

no live controversy to review.” Camreta, 563 U.S. at 711

(alteration in original) (quoting United States v. Concentrated

Phosphate Export Ass’n, Inc., 393 U.S. 199, 203 (1968)).

The parties agree that the statute of limitations has run on

the drug trafficking charge pursuant to which Appellants were

indicted. See Appellants’ Br. at 28 n.8 (noting that, even if the

statute of limitations was tolled pending extradition, the five-

year statute of limitations expired on January 13, 2019).

Therefore, there is no possibility that Appellants will be

indicted for the same alleged offenses that gave rise to this case.

The elimination of exposure to re-indictment moots

Appellants’ objections to the form of the dismissal. See Lewis,

216 U.S. at 613; see also Parr, 351 U.S. at 517 & n.8

(discussing the finding of mootness in Lewis).

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C. Due to Lack of Redressability, Appellants Lack

Standing to Support Their Claims of Reputational

Injuries

Appellants argue that they have standing to pursue this

appeal because of alleged “ongoing reputational injury from

the indictment.” Appellants’ Br. at 28. In support of this

assertion, Scantlebury and Gaskin submitted declarations to the

court reciting reputational harms that continue to adversely

affect their job opportunities, limit their abilities to secure bank

loans, and make it difficult for them to visit the United States.

Each Appellant claims that “[a]n order of this Court dismissing

[his] indictment with prejudice – or less preferably, expunging

[his] arrest record – would enable [him] to claim that the

indictment was in error because [he] was not guilty of the

charges and would remove an obstacle” to re-establishing his

reputation or returning to the United States. J.A. 106, 109.

On the record before us, we hold that the reputational

injuries alleged by Appellants do not give them standing to

appeal. This is because the relief that Appellants seek – an

alteration of the dismissals without prejudice to dismissals with

prejudice – would not redress the injuries that Appellants have

alleged.

In order to establish standing, “it must be ‘likely,’ as

opposed to merely ‘speculative,’ that the injury will be

‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561

(quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38,

43 (1976)). Appellants argue that a favorable ruling from this

court that “the United States charged them without probable

cause would redeem their reputations” and that, with respect to

Gaskin, “striking the arrest would prevent U.S. immigration

officials from using the fact of the arrest against him in the

discretionary processing of his planned application to apply to

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return to the United States.” Appellants’ Br. at 29. These

arguments are premised on a misunderstanding of Rule 48(a),

which allows the prosecution to dismiss an indictment only

“with leave of court.” Fed. R. Crim. P. 48(a).

“[T]he ‘leave of court’ authority gives no power to a

district court to deny a prosecutor’s Rule 48(a) motion to

dismiss charges based on a disagreement with the prosecution’s

exercise of charging authority.” United States v. Fokker Servs.

B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). Rather, a trial court

“reviews the prosecution’s motion under Rule 48(a) primarily

to guard against the prospect that dismissal is part of a scheme

of ‘prosecutorial harassment’ of the defendant through

repeated efforts to bring—and then dismiss—charges.” Id.

(quoting Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977)).

Therefore, a finding that the District Court erred in applying

Rule 48(a) would not constitute a holding in Appellants’ favor

that the Government charged them without probable cause. Nor

would a favorable holding have any impact on the records of

Appellants’ arrests and indictments.

The problem for Appellants is that their alleged

reputational injuries stem from their arrests and indictments,

not from the District Court’s application of Rule 48(a). Neither

the trial court nor this court may second-guess an indictment

that is “‘fair upon its face,’ and returned by a ‘properly

constituted grand jury.’” Kaley v. United States, 571 U.S. 320,

328 (2014) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19

(1975)); see also id. (“The grand jury gets to say––without any

review, oversight, or second-guessing––whether probable

cause exists to think that a person committed a crime.”).

Therefore, absent a meritorious challenge to their indictments,

we lack the authority to afford Appellants the relief that they

seek.

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Had Appellants sought expungement of their indictment

and arrest records, rather than dismissal with prejudice, the

redressability analysis might have been different. But

Appellants did not move for expungement before the District

Court and they have not requested it before this court.

The remedy of expungement is available only if

“necessary to vindicate rights secured by the Constitution or by

statute.” Abdelfattah v. DHS, 787 F.3d 524, 536 (D.C. Cir.

2015) (quoting Chastain v. Kelley, 510 F.2d 1232, 1235 (D.C.

Cir. 1975)); see also id. at 538 (“[We do not] recognize a

nebulous right to expungement of government records that are

inaccurate, were illegally obtained, or are ‘prejudicial without

serving any proper purpose;’ instead expungement is a

potentially available remedy for legally cognizable injuries.”).

Appellants have made no attempt to satisfy this standard.

In sum, the remedy sought by Appellants, if granted,

would not redress their alleged reputational injuries. Therefore,

Appellants lack standing to pursue these claims.

D. The Court Has No Jurisdiction to Consider

Appellants’ Claims Under the Declaratory Judgment

Act

Finally, Appellants request declaratory relief from this

court under the Declaratory Judgment Act, 28 U.S.C. § 2201.

However, the Declaratory Judgment Act does not extend the

jurisdiction of the federal courts. See Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667, 671 (1950) (“[The Declaratory

Judgment Act] enlarged the range of remedies available in the

federal courts but did not extend their jurisdiction.”). Having

concluded that we lack jurisdiction over this appeal on injury,

mootness, and redress grounds, we further conclude that we

17

lack jurisdiction to consider Appellants’ request for declaratory

relief.

III. CONCLUSION

For the reasons stated herein, these appeals are dismissed.

So ordered.