UNITED STATES OF AMERICA, PETITIONER V. LARRY LEE TAYLOR No. 87-573 In the Supreme Court of the United States October Term, 1987 Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-22a) is reported at 821 F.2d 1377. The order of the district court dismissing the indictment with prejudice (App., infra 23a-33a) is unreported. JURISDICTION The judgment of the court of appeals was entered on July 13, 1987. On September 1, 1987, Justice Scalia extended the time within which to file a petition for a writ of certiorari to and including October 11, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The Speedy Trial Act of 1974 provides in pertinent part (18 U.S.C. 3162(a)(2)): If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. * * * In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: 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. QUESTION PRESENTED Whether a minor violation of the time limitations of the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq., justifies the dismissal with prejudice of an indictment charging a serious crime. STATEMENT On July 25, 1984, respondent was charged in a two-count indictment in the United States District Court for the Western District of Washington. The indictment charged respondent with conspiracy to distribute cocaine, in violation of 21 U.S.C. 846, and possession of 400 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A) (E.R. 1-2). /1/ Trial was scheduled to begin on November 19, 1984, which the parties agreed was one day before the end of the 70-day period allowed for commencing trial under the Speedy Trial Act, 18 U.S.C. 3161(c)(1) (E.R. 13, 109). On the day of trial, however, respondent failed to appear. He was declared to be a fugitive and a bench warrant was issued for his arrest (E.R. 50, 57, 112). On February 5, 1985, respondent was arrested by local police officers in San Mateo County, California, for failure to appear on local petty theft charges (E.R. 17, 21, 50). Two days later, the United States District Court for the Northern District of California issued a writ of habeas corpus and testificandum directing the local authorities to make respondent available to appear as a defense witness in United States v. Seigert, No. CR84-0689 RFD, a federal narcotics prosecution pending in the Northern District of California (E.R. 42, 50). On February 7, 1985, the United States Marshals Service took custody of respondent pursuant to the writ and arranged for him to be held in the San Francisco County jail pending the Seigert trial (E.R. 20, 42). Respondent testified in that case on February 21, 1985, and following his testimony he was held for possible recall in that trial. The Seigert trial ended in a mistrial the following day. E.R. 42. On February 28, 1985, the pending state charges against respondent were dismissed on motion of the district attorney (E.R. 25). The marshal was notified of the dismissal on March 1, which was a Friday (E.R. 51, 81). The State's notice informed the marshal that "effective today (respondent) becomes your prisoner" (E.R. 51). The following Wednesday (March 6, 1985), respondent appeared before a federal magistrate in the Northern District of California on the outstanding bench warrant and requested a continuance until March 8 (E.R. 43, 74-81). On March 8, the magistrate, at respondent's request, ordered a physical and psychiatric examination of respondent (E.R. 43, 86-87). At the March 8 hearing, defense counsel also informed the court that he was in no hurry to return respondent to Washington (E.R. 85): I assume that we are going to return, Your Honor. What I propose is we set a removal hearing(.) * * * I would not take the Court's time to have a removal hearing, but I would rather keep him here and organize what is gonna happen and talk to (Assistant U.S. Attorney) Wales up in Seattle. The court scheduled a status conference on the removal hearing for March 18 (E.R. 86). On that date, at respondent's request, the hearing was set for April 3 (E.R. 88-89). /2/ At the time set for the hearing, respondent waived the removal hearing and was ordered removed to the Western District of Washington (E.R. 52, 56, 60-61). Over the next 14 days, the marshal, in accordance with standard procedures, assembled several prisoners who had to travel northward (E.R. 43, 52-53). On April 17, 1985, respondent began his trip to Washington. The following day, while respondent was in Oregon, the district court in the Northern District of California issued a second writ of habeas corpus ad testificandum, compelling respondent's presence at the retrial in the Seigert case. While respondent was waiting to testify in that case, a superseding indictment was returned on April 24 in the Western District of Washington. The superseding indictment added to the two narcotics counts a third count charging respondent with failing to appear before the court as required, in violation of 18 U.S.C. 3150, E.R. 3-5. The Seigert retrial began on May 7, 1985. Respondent was returned to the Western District of Washington on May 17, 1985 (E.R. 44, 43). Before he could be retried, he moved to dismiss the superseding indictment, asserting a violation of the Speedy Trial Act's 70-day time limitation. 2. The district court granted respondent's speedy trial motion and dismissed the two counts charging respondent with narcotics offenses (App., infra, 23a-33a). /3/ The court found that only one day remained on the speedy trial clock when respondent failed to appear at trial in November 1984. Accordingly, the court held, the government had only one day of non-excludable time within which to bring respondent to trial following his capture on February 7, 1985. In calculating the speedy trial time that had expired before trial began, the court excluded the 78-day period between respondent's November trial date and his capture in February as time during which the respondent was "absent" under Section 3161(h)(3)(A) of the Act. The court also excluded the delay between February 7 and February 22 as delay attributable to the pending state charges and respondent's appearance at the first trial in the Seigert case. But the court found that the speedy trial clock began to run on February 23, the day after the first Seigert trial ended. The court counted the seven days through and including March 1, even though the state charges were still pending at that time, because the United States Marshals Service had not returned respondent, who was housed in the San Francisco jail, to the formal custody of the state authorities. In addition, the court counted the next five days as non-excludable time for speedy trial purposes. The court concluded that once the marshal learned on March 1 that the state charges had been dismissed, the marshal should have brought respondent before a federal magistrate immediately for an initial appearance on the bench warrant. See Fed. R. Crim. P. 40(a). Because the marshal did not do so until March 6, the court refused to exclude the preceding five-day period. Applying Section 3161(h)(1)(G), the district court excluded the entire period between respondent's initial appearance on the bench warrant on March 6 and the removal order on April 3 as delay resulting from the removal proceedings. The court excluded the next ten days as a reasonable period of time for transporting respondent back to Washington, under Section 3161(h)(1)(H). The court, however, refused to exclude the full 14 days that it took the marshal to arrange for respondent's transportation back to Washington. In the district court's view, the marshal had improperly elevated his concern for the economies resulting from group transportation over respondent's right to a speedy trial. Finally, the court excluded all the remaining delay as resulting from the second writ of habeas corpus ad prosequendum in the Seigert case and respondent's second journey to Washington. In accordance with its tabulation of the speedy trial time, the court concluded that a total of 15 non-excludable days had elapsed since respondent's apprehension. Because the parties agreed that there was only one day left on the speedy trial clock when respondent absconded, the court found that the 70-day limit of the Act had been exceeded by 14 days and that the indictment therefore had to be dismissed. /4/ The district court then considered whether to dismiss the indictment with or without prejudice. The court acknowledged that the offenses at issue were serious, but it held that the circumstances leading to the Speedy Trial Act violation tended "strongly to support the conclusion that the dismissal must be with prejudice" (App., infra, 30a). The court characterized the government's behavior after respondent's recapture as "lackadaisical" (ibid.), pointing to the failure to return respondent to state custody after his first appearance in Seigert, the five-day interval between the notice of the dismissal of the state charges and respondent's appearance on the bench warrant, and the 14-day period after the removal order before respondent was sent to Washington (ibid.). Based on the government's conduct, the court concluded that the indictment had to be dismissed with prejudice, or else "the (Speedy Trial Act) would become a hollow guarantee" (App., infra, 31a). 3. In a divided opinion, the court of appeals affirmed the dismissal of the indictment with prejudice (App., infra, 1a-22a). The court of appeals agreed with the district court that the Act's 70-day limit had been exceeded by 14 days (id. at 16a). The court also upheld the district court's decision to dismiss the indictment with prejudice. It looked at the factors enumerated in Section 3162(a)(2) and acknowledged that several of those factors favored dismissal without prejudice. For instance, the court agreed with the district court that the offenses were serious. The court also conceded that the length of the delay was "not so great as to mandate dismissal with prejudice" (App., infra, 17a). And the court found "no indication" that the delay had impaired respondent's defense. Nonetheless, the court asserted that respondent had suffered prejudice in that he was incarcerated during the entire period (ibid.). Moreover, the court concluded that the purpose of the district court's order was to send "a strong message to the government" that the Speedy Trial Act "must be observed despite the government's apparent antipathy toward a recaptured fugitive" (id. at 18a). For that reason, the court concluded that the district court had not abused its discretion by entering a "with prejudice" dismissal. Judge Poole dissented on the remedy issue, concluding that the district court had abused its discretion by dismissing the indictment with prejudice (App., infra, 19a). Judge Poole found that the government was not at fault for the delay prior to March 1, when the marshal learned that the state charges had been dismissed. /5/ Noting that the marshal had learned about the dismissal of the state charges on a Friday, Judge Poole further concluded that the marshal could not be charged with neglect for not bringing respondent before a magistrate until the following Wednesday (App., infra, 21a). Judge Poole also explained (id. at 21a-22a) that it took the marshal 14 days rather than 10 days to transport respondent back to Washington after his removal hearing because of the delay necessary "to collect a larger number of prisoners for simultaneous transport in order to effect economy of expenses." In light of these considerations, Judge Poole concluded that the delay in the case, although non-excludable under the statute, was not "of such studied, deliberate, and callous nature as to justify dismissal with prejudice" (App., infra, 22a). Judge Poole further found it incongruous that by fleeing the day before his scheduled trial, respondent became "the instrument of his own deliverance" (ibid.). As Judge Poole explained, respondent "created his own 78-day 'excludable time' by his own will, traveling from Seattle to California where he became the subject of criminal charges in two jurisdictions 800 miles away from the place of trial." Judge Poole found it "ironic that the statutory scheme which would have assured his orderly trial in November 1984, is resorted to, five months later, as the reason for 'springing' him to freedom and conferring upon him complete absolution from further prosecution" (ibid.). To release respondent altogether because of the minor violation of the Speedy Trial Act, Judge Poole concluded, "reflects badly upon our notions of sound, evenhanded administration of justice" (ibid.). REASONS FOR GRANTING THE PETITION The court of appeals believed that dismissal with prejudice was justified to teach the government a lesson about the speedy trial rights of fugitives (App., infra, 18a). But the decision below also contains lessons for others that are entirely inconsistent with the purposes of the Speedy Trial Act. The decision instructs defendants that the Act can be used as a tool to convert flight into complete immunity from prosecution; it instructs trial courts that they may dismiss a case with prejudice whenever it seems appropriate to them; and it instructs appellate courts that the decision of a district court to dismiss a case with prejudice is practically unreviewable. In addition to misapplying the Speedy Trial Act and ignoring the intent of Congress, the decision in this case conflicts with the rationale of decisions in several other circuits. Review of the decision is accordingly needed to provide guidance to the lower courts in construing Section 3162(a), the sanctions provision of the Act. a. When the 70-day time limit of the Speedy Trial Act is violated, the indictment must be dismissed. /6/ 18 U.S.C. 3162(a). When such a dismissal is entered, the district court must determine whether the government may reindict the defendant and begin the prosecution anew. 18 U.S.C. 3162(a)(2). The Act directs that in making that determination, the district court must balance several factors, including the seriousness of the offense, the facts and circumstances leading to the dismissal, and the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of justice (ibid.). Balancing those factors requires the district court to exercise its discretion; the court cannot arbitrarily ignore the direction in which the scale tips. In this case, the statutory factors overwhelmingly favor dismissal without prejudice. Accordingly, the district court was not free to disregard the statutory balancing test simply in order to teach the government a lesson about the speedy trial rights of fugitives. Cf. United States v. Morrison, 449 U.S. 361, 364 (1981) ("remedies should be tailored to the injury suffered * * * and should not unnecessarily infringe on competing interests"). In practical effect, by barring reindictment in this case ostensibly to prevent the Speedy Trial Act from becoming a "hollow guarantee" (App., infra, 31a), the district court read into the Act a strong presumption in favor of dismissal with prejudice. In doing so, the court violated the mandate of Congress. In 1974, when the Speedy Trial Act was enacted, the dismissal sanction was its most controversial and hotly debated provision. See 120 Cong. Rec. 41773-41774 (1974) (remarks of Rep. Conyers, introducing bill); A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, at 193-222 (Fed. Judicial Center 1980) (hereinafter Partridge). The House bill, H.R. 17409, 93d Cong., 2d Sess. Section 101 (1974), reprinted in Partridge at 345, provided that a speedy trial dismissal "shall forever bar prosecution of the individual for the offense or any offense based on the same conduct." The Senate bill was nearly as stringent. It permitted reindictment only where "the attorney for the government has presented compelling evidence that the delay was caused by exceptional circumstances." S. 754, 93d Cong., 2d Sess. Section 101 (1974), reprinted in Partridge at 318. Congress, however, was unwilling to pass either bill with those harsh sanctions. 120 Cong. Rec. 41778 (1974) (remarks of Rep. Wiggins, explaining bill's provisions); id. at 41794 (remarks of Rep. Conyers). Consequently, during the House floor debates, an amendment was proposed and adopted that modified the sanctions provision of the bill (id. at 41774-41775, 41778, 41793-41794). The amendment gave the district court two options upon finding a speedy trial violation: dismissal with or without prejudice. To determine which option was appropriate, the amendment "require(d) consideration of several factors by the court." Id. at 41778 (remarks of Rep. Wiggins); accord id. at 41794 (remarks of Rep. Dennis). As Congressman Wiggins, one of the amendment's sponsors, explained (id. at 41778): No factor, nor combination of factors, requires, however, a particular form of dismissal. In most cases, it is to be expected that no dismissal with prejudice will be ordered unless actual prejudice to the defendant can be shown occasioned by the further delay implicit in a refiling in the case against him, and that the actual prejudice to the defendant outweighs societal interests in prosecuting the alleged offender. The amendment was adopted without further modification. Id. at 41619, 41796. The legislative history of the Speedy Trial Act thus confirms that there is no presumption in favor of dismissals with prejudice. See United States v. Salgado-Hernandez, 790 F.2d 1265, 1267 (5th Cir.), cert. denied, No. 86-5229 (Nov. 17, 1986); United States v. Brown, 770 F.2d 241, 244 (1st Cir. 1985), cert. denied, 474 U.S. 1064 (1986); United States v. Caparella, 716 F.2d 976, 978-980 (2d Cir. 1983). On the contrary, the premise of the amendment to the sanctions provision of the Act was that dismissals without prejudice would be an adequate sanction for most statutory speedy trial violations. Moreover, the legislative history of that amendment shows that Congress intended the district courts to perform the balancing test set forth in Section 3162(a)(2) in selecting a sanction. Finally, the contemporaneous explanations of the amendment by its sponsors make clear that Congress intended to permit reprosecution where the offense was serious and the defendant was not prejudiced by the speedy trial violation. /7/ b. We do not challenge the district court's ruling that the Speedy Trial Act was violated in this case. /8/ Dismissal of the indictment was therefore appropriate. We do, however, contend that when the factors comprising the mandatory balancing test are weighed, the scale tips heavily in favor of dismissal without prejudice. The first factor in the test is the seriousness of the offense. As both courts below agreed, conspiracy to distribute cocaine and possession of cocaine with the intent to distribute it are serious crimes. See also United States v. May, 819 F.2d 531, 535 (5th Cir. 1987); United States v. Simmons, 786 F.2d 479, 485 (1986), rev'd on other grounds on rehearing, 812 F.2d 818 (2d Cir. 1987); United States v. Brown, 770 F.2d at 244; United States v. Carreon, 626 F.2d 528, 533-534 (7th Cir. 1980). The courts of appeals have held that where the offense is serious, the indictment should be dismissed with prejudice only for a "correspondingly serious" delay in violation of the Act. United States v. Salgado-Hernandez, 790 F.2d at 1268; United States v. Simmons, supra; United States v. Phillips, 775 F.2d 1454, 1455-1456 (11th Cir. 1985); United States v. Hawthorne, 705 F.2d 258, 260-261 (7th Cir. 1983); United States v. Carreon, supra. Here, however, the delay in our view was eight days, and even in the district court's view it was only 14 days. That period of delay is not "correspondingly serious." See, e.g., United States v. Brown, supra (35-day delay not serious); United States v. Hawthorne, supra (9-day delay not serious); United States v. Melguizo, No. 87-2198 (5th Cir. Aug. 4, 1987) (same); United States v. Bittle, 699 F.2d 1201, 1208 (D.C. Cir. 1983) (13-day delay not serious). Compare United States v. Stayton, 791 F.2d 17, 21-22 (2d Cir. 1986) (23-month delay serious); United States v. Russo, 741 F.2d 1264, 1267 (11th Cir. 1984) (several-month delay serious). As the Seventh Circuit has noted, where Congress has provided for alternative sanctions, "the purpose of the Act would not be served by requiring the court to impose the maximum sanction for a minimum violation." United States v. Hawthorne, 705 F.2d at 261. Hence, the first factor in the balancing test strongly favors dismissal without prejudice. The second factor -- the circumstances that led to the dismissal -- also strongly favors dismissal without prejudice. The delays here were not attributable to any intentional government misconduct or even any negligence that prejudiced respondent in any way. /9/ Cf. United States v. Loud Hawk. No. 84-1361 (Jan. 21, 1986), slip op. 12-13. Moreover, any delay in the ultimate date of respondent's trial resulted from respondent's failure to appear on the scheduled day of trial. The government was prepared to go to trial, as scheduled, on November 19, 1984. The government did nothing to postpone that trial date. Respondent, however, was obviously less interested in speedy justice. Rather than submit to the jurisdiction of the court for a swift adjudication of his guilt or innocence, respondent fled, thereby postponing the proceedings indefinitely. It was respondent's fault that the marshal was called in, upon respondent's capture by state authorities, to undo what respondent had done, namely, to return respondent to the site of the trial. For purposes of this case, we do not dispute that the marshal was slower in performing this task than the Speedy Trial Act permits. But it was respondent -- not the marshal -- who was principally responsible for the loss of his opportunity for a speedy trial. And it was respondent, not the marshal, who violated the public's right to speedy justice by his flight from prosecution. A defendant who deliberately delays his trial should rarely, if ever, be entitled to the ultimate, irrevocable sanction of dismissal with prejudice. United States v. Peeples, 811 F.2d 849, 851 (5th Cir. 1987); United States v. McAfee, 780 F.2d 143, 146 (1985), vacated on other grounds, No. 85-1959 (Oct. 6, 1986), on remand, 808 F.2d 862 (1st Cir. 1986). Cf. Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (flight "disentitles the defendant to call upon the resources of the Court for a determination of his claims"). As the dissenting judge below observed, the Speedy Trial Act should not be interpreted to let a defendant "be the instrument of his own deliverance" (App., infra 22a). Although Section 3162(a) does not explicitly state that prejudice to the defendant is one of the factors in the balancing test, the legislative history of the Act makes it clear that Congress intended that prejudice would be a circumstance to be weighed in the balance. 120 Cong. Rec. 41778, 41794-41795 (1974). /10/ The courts of appeals agree. United States v. Peeples, supra; United States v. Phillips, supra; United States v. Brown, supra; United States v. Bittle, supra; United States v. Carreon, supra. Respondent has never claimed that his ability to defend against the charges has been impaired by the delay in returning him to Washington for trial. /11/ See United States v. Loud Hawk, slip op. 12 ("(D)elay is a two-edged sword. It is the government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the government to carry this burden."). The court of appeals nevertheless found that respondent suffered prejudice because he was incarcerated during the period of the delay. During that period, however, respondent was lawfully incarcerated because of his failure to appear for trial in November 1984. The speedy trial violation on the narcotics charges was therefore not the cause of his being held in custody during that period. For that reason, the court of appeals erred in considering incarceration as a form of prejudice in this case. See United States v. Salgado-Hernandez, 790 F.2d at 1268-1269. In sum, the circumstances of this case, including the absence of actual prejudice indicate that the second factor in the balancing test favors a dismissal without prejudice. Finally, by the terms of Section 3162(a), the courts are required to consider "the impact of a reprosecution on the administration of this chapter and on the administration of justice." A reprosecution in this case would serve the administration of justice in two ways. First, it would send a message to defendants that they will not profit by absconding. They cannot flout the public's right to speedy justice and expect to gain complete absolution when their flight precipitates a technical violation of the Act. /12/ Second, a reprosecution would serve the public's interest in seeing that narcotics offenders are justly punished. See Barker v. Wingo, 407 U.S. 514, 519-521 (1972); cf. Arizona v. Washington, 434 U.S. 497, 505 (1978). The only statutory factor that could be regarded as cutting in respondent's favor is the effect of a reprosecution on the administration of the Speedy Trial Act. Complete absolution is more likely than a dismissal without prejudice to lead to modifications in procedures that will assure more rapid pretrial processing. In one sense, of course, that factor will always weigh in favor of dismissal with prejudice: by increasing the penalty for noncompliance, compliance is always encouraged. Yet by providing for dismissal without prejudice in many cases, Congress indicated that it did not believe the drastic sanction of dismissal with prejudice would always be necessary or appropriate to induce compliance with the Act. Contrary to the assumption of the courts below (App., infra, 17a-18a, 30a-31a), dismissal without prejudice is not a toothless sanction, and should suffice in many cases to encourage modifications in procedures. When a dismissal is ordered after trial or on appeal, the case must be retried. Even when the dismissal occurs before trial, the government must begin its case over again by resubmitting the case to a grand jury and by running the risk that the statute of limitations may have expired in the meantime. Thus, the district court's conclusion that a dismissal without prejudice would make the Act a "hollow guarantee" (App., infra, 30a-31a) is contrary to both the judgment of Congress and the realities of criminal practice. When all the factors are weighed, the scale tips overwhelmingly in favor of dismissal without prejudice. In these circumstances, the district court cannot ignore the balancing test and select instead the maximum remedy under the guise of exercising its discretion. See United States v. Kramer, No. 86-5217 (8th Cir. Aug. 17, 1987) (reversing dismissal with prejudice as an abuse of discretion); United States v. Phillips, 775 F.2d at 1455-1456 (same). Although the trial court retains discretion in a case where the factors are closely balanced, this discretion is not unfettered. The court must apply the guidelines imposed by Congress. As the court of appeals explained in Kramer, slip op. 10: An abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment. Here,the district court did not give sufficient weight to the seriousness of the offense, the brevity of the delay, the lack of prejudice, and the role of respondent's flight in precipitating the violation. The court made a clear error in judgment when it dismissed these factors as secondary to the need to teach the government a lesson about the speedy trial rights of fugitives. In so doing, the court exceeded its authority under the Act. c. In affirming the "with prejudice" dismissal, the court of appeals failed to follow the principles enunciated in other circuits for determining the appropriate sanction. For instance, as we have noted, the decision in this case is contrary to the decisions of other courts that have held that where the offense is serious, the indictment should be dismissed with prejudice only for a correspondingly serious delay. See, e.g., United States v. Simmons, supra; United States v. Salgado-Hernandez, supra; United States v. Hawthorne, supra; United States v. Carreon, supra; United States v. Phillips, supra. Likewise, the decision in this case is contrary to decisions of the First and Fifth Circuits, which have refused to grant the maximum sanction to a defendant who is in some way responsible for the delay. United States v. McAfee, supra; United States v. Peeples, 811 F.2d at 852. Cf. United States v. Snowden, 735 F.2d 1310, 1313 (11th Cir. 1984). And, the decision of the court below is at odds with decisions of the Eighth and Eleventh Circuits (United States v. Kramer, supra, and United States v. Phillips, supra), because it gives the district court unchecked discretion to choose a remedy without regard to the outcome of the statutorily mandated balancing test. See also United States v. Tunnessen, 763 F.2d 74, 79-80 (2d Cir. 1985). As both Kramer and Phillips hold, the factors set forth in Section 3162(a)(2) may not be ignored, and even when the district court purports to consider those factors, a serious misapplication of the factors requires correction by an appellate court. Review by this Court is warranted to resolve these disagreements regarding the proper application of the Speedy Trial Act dismissal sanction. Justice is generally served when a criminal case is resolved on the basis of the defendant's guilt or innocence. Here, the lower courts have given respondent his freedom without such a determination. There was no constitutional violation in this case; there was no egregious behavior on the part of the government; and there was no intentional disregard of respondent's statutory speedy trial rights. At worst, there was an inadvertent, technical violation of the Act by the marshal. Dismissal of the indictment without prejudice is more than adequate to deter such mistakes in the future. Complete absolution, on the other hand, is a remedy totally disproportionate to the injury suffered or the need to enforce compliance with the Act, and it is a penalty that society should not be forced to suffer. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General PATTY MERKAMP STEMLER Attorney OCTOBER 1987 /1/ "E.R." refers to the Excerpt of Record filed in the court of appeals. It contains the pleadings, exhibits, and affidavits on which the district court based its ruling on the speedy trial motion. There was no hearing on that motion. /2/ The only issue at that hearing would be whether respondent was the individual named in the warrant. Fed. R. Civ. P. 40. /3/ The court's determination that the Act had been violated applied to the two cocaine counts, which had been charged in the original indictment. The court found no speedy trial violation with respect to the failure to appear count that was added in the superseding indictment. App., infra, 32a-33a. Respondent subsequently pleaded guilty to that count. /4/ The conclusion reached the court and the parties that there was only one day left for trial as of November 19, 1984, was 0based on a now-outmoded method of calculating speedy trial time. Under that method, which was recommended by the Judicial Conference's Guidelines to the Administration of the Speedy Trial Act of 1974, as amended 68-70 (rev. Dec. 1979 (with amendments through Oct. 1984)), an "ends of justice" continuance granted under Section 3161(h)(8) would be "tacked on" to the end of the 70-day limitation period; it would not stop the running of the speedy trial clock at the time the continuance was granted. Therefore, when the continuance ended, the speedy trial period would expire as well. It is now clear that that is not the correct method for calculating speedy trial time. Instead, the courts that have analyzed the issue have held that the grant of a continuance stops the speedy trial clock altogether until the continuance comes to an end. Under that method of calculation, there would have been 42 days of speedy trial time left at the time respondent became a fugitive, so that there would have been no speedy trial violation in this case. See, e.g., United States v. Gallardo, 773 F.2d 1496 (9th Cir. 1985); United States v. Campbell, 706 F.2d 1138 (11th Cir. 1983). We did not raise that argument in the courts below and we do not press it here. /5/ Judge Poole observed that the San Mateo authorities could have obtained custody of respondent, who was incarcerated during and after the Seigert trial in the San Francisco county jail, simply by asking the marshal to sign off on the required papers. Furthermore, Judge Poole concluded that the government could not be faulted for failing to return respondent to Washington during that period, since the California state charges were still pending at that time. App., infra, 20a-21a. /6/ Section 3161(c)(1) requires that trial commence within "70 days of the latest of a defendant's indictment, information, or appearance, barring periods of excludable delay." Henderson v. United States, No. 84-1744 (May 19, 1986), slip op. 5. /7/ Five years later, Congress suspended the implementation of the dismissal sanction for one year. 18 U.S.C. 3163(c); Pub. L. No. 93-619, Section 101, 88 Stat. 2080 (codified at 18 U.S.C. 3163). In discussihg this suspension, the House Report stated in passing: While the act does permit dismissal without prejudice, extensive use of this procedure could undermine the effectiveness of the act and prejudice defendants, and the committee intends and expects that use of dismissal without prejudice will be the exception and not the rule. H.R. Rep. 96-390, 96th Cong., 1st Sess. 8-9 (1979). Because Congress was not at that time considering a modification to Section 3162(a)(2), that observation, made five years after the enactment of that provision, is not entitled to much weight. It cannot override the contrary contemporaneous legislative history from 1974 that led to the enactment of the sanctions provision as it exists today. In 1974, Congress specifically rejected the Senate bill, which limited prosecution to exceptional cases. /8/ The courts below identified three periods of non-excludable delay: the six days between the conclusion of the first Seigert trial and the day on which the state charges were dismissed; the six days between the date on which the federal marshals were notified of that dismissal and the date on which respondent was taken before a federal magistrate on the outstanding bench warrant; and the four days of extra travel time on the first attempt to return respondent to Washington. We believe that the courts erred in refusing to exclude the period between the conclusion of the first Seigert trial (February 22) and the day on which the state charges were dismissed (February 28). The Speedy Trial Act does not require the marshal to interfere with state proceedings. Accordingly, he was under no obligation to return respondent to Washington before the state charges were dropped. 18 U.S.C. 3161(h)(1)(D); United States v. Bigler, 810 F.2d 1317, 1320-1321 (5th Cir. 1987); United States v. Redmond, 803 F.2d 438, 440 (9th Cir. 1986); United States v. O'Bryant, 775 F.2d 1528, 1532 (11th Cir. 1985); United States v. Rodriguez-Franco, 749 F.2d 1555, 1559 n.2 (11th Cir. 1985); United States v. Lopez-Espindola, 632 F.2d 107, 109-111 (9th Cir. 1980); United States v. Goodwin, 612 F.2d 1103, 1105 (8th Cir. 1980). The district court did not suggest that the marshal should have returned respondent to Washington during that period. The court, however, faulted the marshal for not moving respondent from the San Francisco County jail to the county jail in neighboring San Mateo County, where the state charges were pending. But such a move was unnecessary and should have no effect on the speedy trial calculations. The sheriff in San Francisco was under court order to deliver respondent to San Mateo authorities upon request. E.R. 20. The marshal's failure to move respondent to San Mateo County in no way impeded the State's ability to prosecute respondent on the local charges. We do not dispute the district court's conclusion that the other two periods were not excludable. Although the marshal learned at some time on Friday, March 1, that the outstanding state charges had been dismissed, respondent was not taken before a federal magistrate for an initial appearance on the outstanding bench warrant until the following Wednesday, March 6. The district court counted that period as constituting a five-day delay for speedy trial purposes. Second, Section 3161(h)(1)(H) of the Act establishes the presumption that any transportation time in excess of 10 days is unreasonable, and the marshal did not arrange for respondent's transportation to Washington after the first Seigert trial until 14 days after the removal order. Although we believe that in an appropriate case the presumption can be rebutted by showing that the extra time taken was justified by economic or security considerations, we do not contend that such a showing was made here. Accordingly, because the marshal took four more days than the Act generally allows to return the fugitive respondent to the charging district, we do not challenge the decision of the lower courts to count those four days. We therefore acknowledge that nine speedy trial days elapsed after the respondent's capture. When added to the 69 days that the parties agreed had elapsed before respondent absconded, the 70-day limit of the Act was exceeded by eight days. /9/ It is reasonably clear that the eight-day period that constituted the violation in this case did not have the effect of delaying respondent's trial date. Respondent was returned to California to testify at the Seigert retrial on April 18. Even absent the delay in initiating the removal proceedings and in taking him from California after the removal order, it is unlikely that respondent would have arrived in Washington before early April. And it is highly unlikely that respondent's trial could have been held during the period between his return to Washington and April 18, when the district court ordered him returned to California, particularly since respondent's counsel was heavily involved in the Seigert case. The government and defense counsel would surely have sought, and been granted, a continuance of respondent's trial under Section 3161(h)(3)(B)(8) of the Speedy Trial Act until after the completion of the Seigert trial. /10/ As the legislative history explains, Congress chose not to list prejudice as a factor for fear that it would become the dispositive factor in every case. Nevertheless, every Congressman to address the question of prejudice during the debates expressed the view that prejudice should play an important role in the overall balancing test. 120 Cong. Rec. 41778, 41794-41795 (1974) (remarks of Reps. Dennis, Wiggins, Cohen, and Conyers). /11/ Indeed, respondent consistently showed by his actions that he did not object to delays. He not only deliberately delayed trial by absconding; even after his recapture, respondent showed no interest in a prompt return to Washington for trial. Although he now complains that he was not brought before a federal magistrate on the bench warrant until the Wednesday following the Friday on which the marshal was notified of the dismissal of the state charges, he made it clear at the time that he was quite ready to postpone the completion of the removal procedures. It was largely because of delays sought by respondent, including his refusal to waive the formality of an identification hearing until the day scheduled for it, that these proceedings were not completed for almost a month. /12/ It is no answer to say, as did the court of appeals (Pet. App. 10a-11a), that defendants who abscond are still subject to prosecution for absconding. As long as the maximum sentence for failure to appear is lower than the maximum total sentence on all the charges from which the defendant is fleeing -- as was the case here -- the defendant will have an incentive to abscond if he is reasonably sure that if he is captured the government will not be able to return him and arrange for his trial within the remaining speedy trial time. APPENDIX