UNITED STATES of America, Appellant, v. Hasan WORTHY, a/k/a Moto, Defendant, Appellee.
No. 12-2049.
United States Court of Appeals, First Circuit.
Submitted Sept. 28, 2012. Decided Nov. 14, 2012.
699 F.3d 661
Renée M. Bunker, Assistant United States Attorney, and Thomas E. Delahanty II on brief for appellant.
Edward S. MacColl and Thompson, Bull, Furey, Bass & MacColl, LLC, P.A. on brief for appellee.
Before BOUDIN, HOWARD and THOMPSON, Circuit Judges.
PER CURIAM.
The United States appeals from a district court order granting defendant Hasan Worthy‘s motion for release on account of
Hasan Worthy was initially arrested and ordered to be detained on August 6, 2010, on a charge of conspiracy to possess cocaine with the intent to distribute,
That provision states, in relevant part:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
When the 70-day clock set by section 3161 expires, the trial judge may dismiss the case with prejudice or without prejudice, based on factors specified by statute (e.g., the seriousness of the offense, the circumstances that led to the dismissal and “the impact of a reprosecution on the administration of [the Speedy Trial Act]“).
At around 9:44 a.m. on August 2, 2012, the district court ordered Worthy‘s discharge; approximately 15 minutes later and without any interruption of physical custody, Worthy was re-arrested on a new criminal complaint listing one count of possession of a mixture or substance containing cocaine with intent to distribute. On August 7, 2012, Worthy was re-indicted on four counts which were virtually identical to the counts charged in the October 2011 indictment and again pled not guilty.
Under the statute, this new indictment, permitted because the dismissal was without prejudice, restarted the 70-day clock even though the new indictment charged exactly the same offenses.
Section 3164 specifies that a “person who is being held in detention solely because he is awaiting trial” must be tried “not later than ninety days following the beginning of such continuous detention,” and “[n]o detainee . . . shall be held in custody pending trial after the expiration of such ninety-day period required for the commencement of his trial.”
Nevertheless, the permissible detention period under the prior complaint and indictment, like the time to start trial under that indictment, had (the government stipulated) expired by the end of July 2012. The new indictment unquestionably reset the 70-day clock to zero,
The district court, noting that neither the Supreme Court nor the First Circuit had ruled directly on this issue, adopted the view of the Ninth Circuit in United States v. Tirasso, 532 F.2d 1298 (9th Cir. 1976). Tirasso holds that re-indictment on the same offense does not restart section 3164‘s 90-day clock, saying that “[t]he language of section 3164 is straightforward” in this regard, id. at 1299, although the court conceded that a defendant otherwise subject to detention might easily flee, id. at 1300-01. In fact, Worthy had been kept in detention under the prior indictment based on findings that he was both a flight risk and a danger to public safety.2
With due respect to the Tirasso court‘s view, we do not agree that section 3164 compels such a result nor can we imagine Congress intending it.
The holding in Tirasso turns on the sentence in section 3164(c) that reads, “No detainee . . . shall be held in custody pending trial after the expiration of such ninety-day period required for the commencement of his trial.” At the extreme, one might interpret this sentence to mean that a defendant who has been detained for more than 90 non-excludable days may never again “be held in custody pending trial,” regardless of the charges—an absurdity rejected by the Tirasso court itself, which said that detention might be allowed following re-indictment for “completely discrete offenses.” 532 F.2d at 1300.
In our view, Tirasso is mistaken. The “linchpin of the Speedy Trial Act” is section 3161(c), which requires that a defendant be brought to trial within 70 days of the information, indictment or initial appearance in court. United States v. Hastings, 847 F.2d 920, 924 (1st Cir. 1988). On adoption, the statute provided for a phase-in period during which each district would formulate and implement a plan “to accelerate the disposition of criminal cases . . . consistent with the time standards” set by the Act. See
Section 3164 was initially adopted as a set of “[i]nterim limits” that would apply during the phase-in period; under these interim limits, a defendant who was detained or designated as “high risk” could only be held pending trial for 90 days.
In its initial incarnation, the Speedy Trial Act did not specify whether the various periods excluded from the calculation of
In 1979 Congress sided with Corley and rejected Tirasso on this issue by inserting a cross-reference to the section 3161 exclusions in the amended section 3164. See
Rather, the main argument for a negative answer depends on an inference from the fact that section 3161 says—albeit opaquely—that the 70-day clock does start afresh. But such negative inferences are merely possible readings, and the negative inference in this case is unpersuasive. Section 3164, intended as a temporary phase-in measure, never meshed perfectly with section 3161, which is evident from the original lack of explicit exclusions in section 3164. Otherwise, high-risk defendants would regularly have been discharged after 90 days long before the 70-day-plus-exclusions clock required them to be tried.
As for retrials, section 3162 explicitly allows for dismissal without prejudice after the 70-days-plus-exclusions clock expires,
Finally, it is unimaginable that Congress intended to permit re-indictment on the same offense but contemplated that a dangerous defendant or one who poses a risk of flight would automatically be freed because 90 days plus exclusions had expired on the detention under a prior charge and indictment. One of the purposes of assuring a speedy trial is “to avoid . . . an extended period of pretrial freedom by the defendant during which he may flee, commit other crimes, or intimidate witnesses.” Hastings, 847 F.2d at 924 (quoting A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, at 12 (1980)). To refuse to restart the 90-day clock following arrest and a new indictment is to frustrate a central purpose of the Speedy Trial Act itself.
Worthy‘s trial recently commenced in federal district court in Maine and (it appears) has now ended with convictions on all four counts. Since section 3164(c) applies to detainees “held in custody pending trial,” the appeal may technically be
We therefore hold that when an indictment is dismissed upon the motion of a defendant, the dismissal is without prejudice and that defendant is again detained awaiting trial, section 3164‘s 90-day clock restarts at the moment that the defendant is re-arrested, regardless of the nature of the charges in the new complaint. The district court‘s order of release is reversed.