*1 Judge, FRIENDLY, Before FEINBERG, KAUFMAN, HAYS, MULLIGAN, MANSFIELD, OAKES Judges. TIMBERS, Circuit Judge: MANSFIELD, Circuit by this question raised is petition of mandamus for a writ charge a criminal dismissal of whether pursuant our Second Circuit to Rule of Disposition of Regarding “Prompt (hereinafter Cases1 Criminal indictment), whichever than a sealed : 1. Rule is not If must earliest. all “4. In cases time, ready within such ti'ial months trial within six periods arrest, extended from the date of the service good detention, filing under rule summons, cause court for district 5, only charged upon complaint if or of formal then, upon non-capital offenses, (other be tried the defendant is to *2 Disposition Rules”) they leaving is with er were observed the house precludes placing the packages reindictment for thus the in a car. exception same offense. Because of the Neither defendant was incarcerated. importance al the time of the issue at February 3, days On two before filed, petition when we heard was expiration of the six-month deadline F.R.App.P. petition en banc. See government required which the was 35(a)(2).2 conclude that such We trial, ready Rule 4 to be for an in- a dismissal is with (the Indictment”) dictment “First remedy appropriate mandamus is the charging possession filed of Hilbert with Accordingly order the this case. we marijuana with intent distribute granted indictment writ and .the second of 21 violation U.S.C. 841 and 18 U.S. § dismissed. February 17, 2.3 C. 1972 was then § arraignment, fixed for at which August 5, 1971, petitioner, On pleaded guilty. defendants On Hilbert, III, John A. Turnbull, and one Bruce A. 10, 1972, pretrial March at a conference agents were arrested Judge Dooling, before the defendants The States Customs Service. moved for the of the indict- that at the time of contends comply ment for Rule 4. failure to arrest, their Hilbert and Turnbull were days later, Six and over months seven containing possession of two cartons arrests, At- after the the United States kilograms marijua- approximately of torney filed a of In a notice readiness. allegedly imported na which had been memorandum and order dated March Kennedy into the at Air- United States Dooling, finding govern- port Jamaica, from West Indies. The ready ment not for trial within six gov- two cartons were delivered under from months the date of arrests and ernment control to a house which was finding none of Rule 5’s exclusions placed then under The de- surveillance. granted applicable,4 to dis- the motion short time aft- fendants were arrested a miss. application upon 952(a) of the defendant or and 18 § violation U.S.C. court, op- 2). motion of after U.S.C. portunity argument, charge Disposition 4. Rule 5 of the be dismissed.” provides: computing the time within which “In importance of the issue has The should be somewhat diminished as a result of the following periods should be trial [the adoption by recent the various district by the district : court] excluded courts within the Second Circuit of new pro- “(a) period delay while The prompt rules ceedings concerning are the defendant 50(b), criminal cases to Rule pending. . F.R.Cr.P., which became effective on period resulting “(b) delay The October granted dis- a continuance from specify These rules in more de- local request of, court at the or with the trict tail circumstances of, the or his counsel. consent charge prejudice. is to be dismissed with decision, therefore, governs only Our those “(c) period delay resulting during period July dismissals from granted at from a continuance 5, 1971, Prompt Disposition when the prosecuting attorney quest if: effect, April 1, 1973, Rules went into (i) granted be- continuance when the new local rules unavailability of evidence cause become effective. government’s material ease.
3. The First Indictment contained two charged The first counts. count both resulting posses- “(d) period Hilbert and Turnbull with willful marijuana, unavailability sion of violation of from the absence or U.S.C. 841, and 18 U.S.C. 2. The second defendant. separately charged “(e) A count Turnbull with reasonable importation marijuana (in joined unlawful when the defendant grand May jury dispatch. pro- with reasonable On “superseding” indictment vides that “the ready handed down a must be charging petitioner with the same trial within six months from arrest, for the the date of the sum- service of offense.5 The defendants moved mons, filing on detention, indictment dismissal of this second com- plaint ground, among others, 4Rule formal *3 gov- precluded whichever is earliest. the reindictment. On June If motion, ready 1972, Judge Dooling ernment is not trial with- denied the periods period time, in holding such or the that a new six-month by May 30, as extended the district court the date of commenced as for the good cause under rule of indictment. It was with the second charge (Emphasis peti- dismissed.” respect that Hilbert to this order added). prosecution The onus on the for a writ of manda- tioned this Court by pursuant F.R.App.P. somewhat alleviated Rule 21 and mus to grant ex- authorizes the district court 28 U.S.C. 1651. § period of where tensions the six-month Disposition Prompt Rules The justified by of reason such circum- supervi adopted to our were concerning “proceedings other stances as sory power The and 28 U.S.C. unavailability defendant,” of ma- designed prob to alleviate the Rules are evidence, unavailability of the terial by delay of in criminal set lems cases defendant, periods delay of or “[o]ther ting mini than the standards stricter by exceptional circum- occasioned period applicable prescribed mum However, stances.” required of limitations statute comply put if it not on notice that does of Amendment. Statement Sixth See provide ample Rules, lee- with the way Accompany Sec Circuit Council legitimate prepar- of needs Regarding Prompt Circuit ond ing prosecution, foreclosed a it will be Disposition How Cases. of Criminal prosecution. proceeding from with ever, not the Rules do mandate designed time, summary, specified period has In as the Rules are within a ready See, urged by g., require Ameri to be been some. e. Project try subject promptly, certain Bar on Mini can Association cases Justice, generally recognized types delay as for Criminal mum Standards arising legitimate Speedy Relating unavoidable Trial from Standards Instead, purpose more 4 is to in- have taken a of Rule we focusing causes. The course, primarily regardless on whether a defend- moderate prevention sure that delay given prosecutorial prejudiced case as ant has been rights public implementing inter or his constitutional means against charges charge fringed, disposition est of criminal the trial included three n. to whom the time indictment codefendant as The second good es were has run and there is The first two counts for trial counts. ' correspond granting sentially a severance. same as their cause for not ing in the first indictment. See number charged period delay resulting “(f) supra. The note third count conspiracy U.S.C. from detention Turnbull with jurisdiction. in violation of U.S.C. another 846 and §§ peti during (a). period (a) (1) “(g) which the de- As Hilbert, tioner, indictments were fendant is without counsel reasons Turnbull, other than the failure of the As to defendant identical. issue, provide indigent though defend- need not decide the counsel for we conspiracy ant count based on or the insistence of the defendant addition essentially proceeding would not counsel. the same transaction on periods appear legally significant “(h) Other to be exceptional determining purpose whether occasioned circum- under Rule should be dismissed stances.” Prompt Disposition Rules. 4 of go promptly garding him will forward instead of Disposition of Criminal being by creeping, paralytic provides: frustrated Cases procedural delays type that have public requires dispo- “The interest spawned backlog cases, of thousands of charges sition of criminal with all rea- losing public with the confidence dispatch. sonable The deterrence of gaining impression courts and by prompt prosecution crime federal criminal laws cannot be en- charges is frustrated whenever there forced. is a in the of a case required good which is not some Although providing that the general reason. The observance “charge shall be dismissed” whenever largely upon law rests is not for trial process law enforcement. extended, within the six-month process When the is slowed down explicitly does not state that the dismis *4 repeated delays in the prejudice,” sal shall “with be our intent charges good there no for which readily mandate such a dismissal is reason, public seriously confidence is apparent language, purpose from the eroded.” logic Prompt Dispo and internal of the permitted If the were imperatives sition Rules. The use of the dismissal, indict after a Rule 4 Prompt our “must” and “shall” and of the word Disposition Rules would for the “charge” only manifest an intent not part letter, most be rendered a dead mandatory that the dismissal be but that since the would have less binding it have a effect. If the Council push centive to forward to trial. More- had intended to district courts the over, permitted, if reindictment were discretionary power to dismiss with or might some instances ac- without it would have used tually placed position be in a worse permissive language type of the found Prompt Disposition Rules than if 48(b) F.R.Cr.P., in Rule which they adopted. pre- had not been Under part existing pertinent procedures “[T]he would continue to single pending proceed- face trial indictment, dismiss the infor ing, represented by the same trial coun- complaint” (emphasis added)6 mation or having expenses sel and the benefit of and, like F.R.Cr.P. it would have re incurred for one bail bond and one law- containing ferred to the document yer. Reindictment, hand, on the other charge, e., indictment, i. rather than proceeding, would start a new “charge.” use the more inclusive term arrest, could result in a second necessi- 7(c). Cf. F.R.Cr.P. Rules 3 and tating legal counsel, the retention of new posting bond, Our intent is further manifested a new and other steps, the overall structure of the all at a Dis- further cost in terms position Rules, money, specify gamut psychological time and distress. exceptions under which the Green United six-month Cf. 187-188, period could be extended. This detailed L.Ed.2d 199 painstaking delineation would The instant case is illustrative. largely Judge Dooling, by permitting if fruitless the sole sanction reindict- non-compliance by finding were a dismissal ment and that Rule 4’s six- preclude which did not reindictment. month ran from the date of the As the reindictment, May 30, 1972, Statement of the Circuit Council in effect al- Accompany Second Circuit Re- lowed the at least 16 months F.R.Cr.P., 6. Rule ant lias been held who to answer to the court, provides: court, unnecessary or if there is unnecessary delay pre- bringing “If trial, there is a defendant senting grand jury indictment, ato or in the court dismiss the filing against information, complaint.” an information a defend- (Aug. 7, original Stat. arrest date of the from the guidance 1939).8 concomitantly Under trial and be Appeals position of the Court placed Justice Groner in the the defendants Circuit, pro- duplicative expenses for the District of Columbia risking Conference, pros- only of the Judicial second Committee fear not tracted working appointed possibility third with a committee ecution but General, Attorney the 1939 drafted the sec- the court should dismiss case if gov- bill, subsequently en- which was indictment for failure ond Congress ready according modifica- with minor to the acted ernment Report and Re- Prompt Disposition on the Powers Such a re- tions. Rules. Councils, sponsibilities underly- of the Judicial certainly with the sult clashes Cong., 2d ing purposes 87th H.R.Doc.No.201 at Rules. those (hereinafter (1961) Re- “1961 Sess. prej- Our view that dismissal designed pro- port”). That bill was seriously undermine udice would newly vide established Judicial by the Bar Rules is shared American to deal needed with the tools Councils Project on Minimum Association’s judi- effectively problems as with such Justice, for Criminal Stand- Standards delay. empha- cial Groner Chief Justice Relating Trial, Speedy ards 40-41 testimony presenting in his the bill sized only (1968), ef- which states “that on the Judici- to the Committee Senate remedy speedy fective denial of ary that: *5 discharge. complete is absolute and is courts due are free to criticism of the Prosecutors who “[T]he delay. prosecution another later have to commence . delay.”7 not from undue been deterred bill undertakes “Those matters this suggests The that outlining du- provide certain to promul- powerless is to Circuit Council judicial of council. Under ties gate having effect of mandat- a rule present judicial set-up au- we have no ing because dismissal with require thority to a district government’s within non-readiness speed up him or to admonish his work plus as extensions are six months such bearing full and he not is granted by disa- court. We district expected to fair is burden that provides gree. Title 28 332 U.S.C. § any bear, other or to take action part: pertinent subject of criti- which is matter judicial shall make all cism. .
“Each council necessary for the effective and orders not “The bill also what expeditious administration duty true, that it shall be now its cir- business of the courts judges, when admonished judges The cuit. are otherwise matters when carry promptly orders into effect all judi- brought by the his attention judicial of the council.” steps are ivhatever council, to take cial genesis thought necessary to correct to be 332 was “an Act § ought provide things to exist of the those administration ” system.” xv, judicial . well run United States courts. . Ch. Council, Nothing have said con- v. Judicial we should be Chandler precluding 74, 89-129, L.Ed.2d 26 strued as 90 reindictment when concurring). J., extraordinary (Harlan, ofAs there have been circum- Amendment, upon stances as fraud 62 Stat. § such obtaining dismissal, suppression 1948), provision large- (June 25, subsequent defendant, like, ly present evidence in its form with language would warrant and extension of limited amendments syntactical time. modification. legis- 8. For a detailed delineation of the history § lative of 18 U.S.C. see
Rep.No.426, Cong., power might 76th 1st Sess. cils the to do whatever be (1939) added). (emphasis necessary manage efficiently more justice,” the courts and administer Lum- principal This statement one of the bard, The Place of Federal Judicial hearing bill, drafters of the made at a Councils the Administration of the originated the Senate Committee which Courts, (1961) (empha- 47 A.B.A.J. 169 legislation, entitled to considerable added). Similarly Justice, sis weight. Cf. SEC v. Robert Collier & Judge, Burger, deploring then the coun- Co., 1935). (2d F.2d Cir. powers, cils’ failure to use their noted powers view that “all-embracing 332 is and con- expansive were was ech- intended fer power. Any almost unlimited [s] by Congressman Celler, problem oed Emanuel relating it —whatever be— former expeditious Chairman of the Committee to the and effective adminis- Judiciary House, justice of the who was a tration of within the circuit is conference and a committee member within the of the Circuit Judicial manager original Proceedings at the time of the Council.” Attorney of the group enactment9 and of distin- General’s Conges- Conference on Court guished jurists who, conducting after Delay Litigation tion and 58 at 59-60 study powers of the Judicial Councils, responsi- concluded that “the Congress’ intent, Thus as manifested bility of the councils ‘for the effective language both the history expeditious administration act, was to pow- the Councils broad business of the courts within its circuit’ ers to deal with the evil of de- merely extends not to the business lay. Prompt Disposition Rules, Our fol- (judicial the courts in its sense technical lowing mandate, attempted 332’s administration), handling such as the problem, attack this with an effective dispatching cases, but also to the sanction, i.e., dismissal with judiciary business of the in its institu- tardy prosecutorial *6 behavior. (administration justice), tional sense avoiding any stigma, such as 48(b), the Although dis- Rule 4 and Rule F.R. repute, public or other element of loss of general Cr.P., sub- deal with the same esteem and in confidence the to ject power to dis- court’s matter —the ”10 system. Report, court . . . 1961 any do not find miss for —we supra at 8-9. consistency the rules. Rule between two leg- The text 48(b), of 332 for dismissal corroborates “ history purpose unnecessary islative f de- and the Act. the court there is [i] Judge accurately .,” merely Former lay. Chief Lumbard . a restatement power characterized the statute when he said of inherent “the language “As this for want is about as broad as court to a case dismiss possibly be, it prosecution,” could Note is no Committee there doubt Congress 48, meant to 8A Federal Practice to the eoun- to Rule Moore’s Congressman Judge Celler stated: know of Chief “[I] Committee consisted The Harvey Congress Eighth it was the intention Cir- of the M. Johnsen Chairman; Judge cuit, councils of the J. Edward cir- Chief responsibility Circuit; doing cuits with the all Lumbard of the Second Circuit necessary Judge and whatever the Fifth Cir- of an ad- T. Rives of Richard Royce Savage Judge ; ministrative H. character to maintain effi- cuit Chief ciency public District of Oklahoma confidence the ad- the Northern justice.” Forward, ministration 1961 the Dis- Roszel Thomsen of C. supra Report, at v. Maryland. Confer- The Judicial trict modifications, adopted ence, after a few Special study 10. The Committee 13-14, report of March at its session Powers Judicial Councils arose from September 1960 Judicial Conference.
361
may
48(b),
therefore, merely
tions. Rule
48
under Rule
48.01. Dismissal
if
be without
general
see, e.g.,
power
prejudice,
Mann
confirms the court’s
v.
27,
U.S.App.D.C.
States,
304
area.
United
113
896,
denied,
394,
83
F.2d
cert.
371 U.S.
contrary
suggesting
con
The cases
194,
(1962)
it
abuse mandamus, is not Will 88 S.Ct. 19 L.Ed.2d U.S.
(1967), on appeal from a conviction but there if conviction
a new indictment
would be. greater depth written I should have adoption that, with the for the fact
save of district court F.R.Cr.P. prompt of crim-
rules for the thereunder, power of the
inal cases to direct
Judicial Council of its Rules violation Prompt Disposition of Cas- Criminal the future.
es will now be academic empowers 50(b) clearly a district approval
court, the review- with the
ing panel, provide that dismissal done. has now been
be with
However, noting that Rule it is worth which have
of the district court rules approved circuit, see our fn. majority opinion, affords measure flexibility not in the Second contained Prompt Disposi-
Circuit Rules having which, Cases, of Criminal
tion important purpose
well served the adoption, now been
led to their
pealed of the new on the date effective *9 rules. deny
I would writ.