UNITED STATES v. TAYLOR

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ORAL ARGUMENT BY EDWIN S. KNEEDLER, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: Mr. Kneedler, you may proceed whenever you are ready.

Mr. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court:

The question presented in this case is whether a district court may properly dismiss an indictment with prejudice when it finds a minor violation of the time limits contained in the Speedy Trial Act of 1974.

The Speedy Trial Act provides, in general, that a federal criminal prosecution, the trial in such a prosecution must commence within 70 days of the returning and making public of the indictment or information, or within 70 days of the defendant's first appearance of a judicial officer of the district, whichever occurs later.

The act, of course, contains certain exclusions from the running of the 70-day time period, some of which were applied in this case for such things as other proceedings relating to the defendant, delay attributable to the removal or transportation of a defendant from another district, and continuances of the trial for situations in which the court finds that the ends of justice would warrant such a continuance.

Now, if the defendant is not brought to trial within 70 days, taking account of any exclusions, the statute provides that the indictment or information shall be dismissed, but the act does not provide that such an indictment must be with prejudice, thereby forever closing the government from prosecuting the defendant for the conduct underlying the indictment or information.

Congress considered such a proposal and also a proposal that would have created at least a presumption in favor of a prohibition against reprosecution, but Congress rejected that and instead adopted what is now in Section 3162(a)(2) of Title 18 dealing with the dismissal sanction.

There Congress provides that a balancing test must be applied in determining whether the indictment should be dismissed with our without prejudice.

And Congress specifically provided that the district court, in making that determination, shall consider, among other things, each of three separate factors.

The first is the seriousness of the offense.

The second is the facts and circumstances of the case that led to the dismissal.

And the third is the impact of a reprosecution on the administration of the Speedy Trial Act and on the administration of criminal justice.

In this case, the Court of Appeals affirming the district court found a violation of the Speedy Trial Act, a total of 14 days by which the 70-day time limit was exceeded.

The Court of Appeals then affirmed the district court's decision dismissing that indictment with prejudice despite the existence of what, in our view, are a host of factors, all of which weigh decidedly against that severe sanction.

For example--

Unidentified Justice: Mr. Kneedler.

Mr. Kneedler: --Yes.

Unidentified Justice: What is the standard on appellate review?

Is it abuse of discretion?

Mr. Kneedler: That is the standard the courts have applied, and we don't dispute that as the legal test.

But it is important to bear in mind several things along those lines.

This is not a situation in which the district court's discretion is entirely unfettered.

Congress prescribed the statutory standards that are to be applied, the ones that I just recited.

So it is essential for the Court of Appeals to evaluate the district court's decision to see whether those factors were in fact taken into account; whether all the subsidiary considerations, for example, bearing on the administration of justice were considered.

And then in addition, whether the district court made a clear error in weighing the various considerations.

In this case, we believe that in fact the district court erred in both respects by not giving full consideration to the relevant factors and by committing a clear error in the balancing to the extent it did consider them.

Unidentified Justice: You don't bring to us the question whether or not the clock should have been restarted for the full 70 days?

Mr. Kneedler: We do not.

The Court of Appeals rejected that argument.

Unidentified Justice: You did argue it below?

Mr. Kneedler: We did argue that in the Court of Appeals.

In fact, we do not dispute that there was a violation of the Speedy Trial Act here.

That conclusion is not free from doubt.

For example, the way in which the continuance, the end of justice continuances were calculated in this case led to the scheduling of the trial on what the district court found to be the 69th day of the 70-day period.

As we point out in a footnote in our brief, however, the premise of that was erroneous, and we disagree with the court's failure to exclude six days of the time limit that we explained at Pages 23 to 25 in our brief.

But as we present the case here, we assume that there was a violation, as we counted it, of eight days.

And so we are presenting the case on the question of remedy, not on whether there was a violation, although I do think that certainly the length of the delay and the question of whether it was a close question as to whether the act was even violated would properly bear on the question of whether the indictment should be dismissed with or without prejudice.

So to that extent, the various arguments in which the... whether the clock should be restarted would be relevant on the question of remedy.

The various factors that we believe in this case weight heaving against dismissing the indictment with prejudice were, first, that the... as both courts below conceded, and as Respondent does not contest, the offenses in this case, narcotic offenses, both conspiracy and a possession count were serious, carrying potential for imprisonment up to--

Unidentified Justice: Mr. Kneedler.

Mr. Kneedler: --Yes.

Unidentified Justice: What section of the criminal rules is it that speaks of dismissal of indictments with prejudice or without prejudice?

Mr. Kneedler: Well, Rule 48 prior to the passage of the Speedy Trial Act, Rule 48 of the criminal rules provided for dismissal of cases basically for want of prosecution, and then that was... then when the Speedy Trial Clause of the Constitution was given particular force in Barker v. Wingo, that and the Speedy Trial Act have to some extend Rule 48 and importance, but it would be Rule 48.

Unidentified Justice: Well, for instance, supposingly we were dealing with a violation of other than the Speedy Trial Act, would a district court have authority to dismiss an indictment with prejudice?

Mr. Kneedler: Ordinarily not.

A dismissal for want of prosecution under Rule 48 I think would ordinarily be without prejudice.

Now the statute of limitations might kick in at some point and bar reprosecution but--

Unidentified Justice: But here the Speedy Trial Act itself authorizes dismissal with prejudice.

Mr. Kneedler: --That's correct.

It's only because of the... under the Speedy Trial Act, it's because the Speedy Trial Act authorizes the dismissal in that form.

But it gives to the district court a weighty responsibility to decide whether the dismissal should be with or without prejudice, because after all, a dismissal with prejudice results in the freeing of a defendant without an adjudication of his guilt or innocence, and it's generally regarded to be in the public interest for criminal charges to be adjudicated on the merits, and not dismissed for no reason... not no reason at all, but unless there are substantial reasons for doing so.

And also, Congress specifically charged the courts under the Speedy Trial Act with trying to draw the line between the serious and less serious violations of the act.

Unidentified Justice: Mr. Kneedler, in deciding whether there was an abusive discretion in dismissing with prejudice rather than without prejudice, do you think it's proper for us to take into account that there was a subsisting charge which was not dismissed and for which the judge imposed the maximum penalty, which he might not have done had the other count not been dismissed?

Mr. Kneedler: Well, I don't think it's--

Unidentified Justice: He got five years for what, what was the other offense?

I forget.

Mr. Kneedler: --For the failure to appear.

Unidentified Justice: For not showing up a trial, right; failure to appear.

Mr. Kneedler: We don't think that should play a substantial role here.

Congress prescribed separate criminal sanctions for these offenses, and the narcotic offenses here are serious, and carry more serious consequences.

And at the time the indictment was dismissed here, the district court had not yet imposed that sanction.

The defendant had not yet pleaded guilty.

So in terms of... Congress, in the Speedy Trial Act, requires the court to focus on the particular charges in the indictment.

And I am reluctant to say that's altogether irrelevant, but we don't think that given what Congress was focusing on, the charges in the indictment and factors bearing on those charges in the weighing process, that that factor should play a substantial role.

It's quite possible that if the Defendant was convicted, that he could get a sentence considerably more than the five years that he got on the failure to appear charge.

Unidentified Justice: Mr. Kneedler, the statute was passed in order to get prompt prosecutions, right?

Mr. Kneedler: Yes.

Unidentified Justice: And one way to do that is to prod the prosecutor.

If we say that all you can do is to dismiss without prejudice, how would that prod the prosecutor?

Mr. Kneedler: Well, first of all, we're not saying--

Unidentified Justice: If the only thing that will be done is to say, oops, you shouldn't have done that.

Mr. Kneedler: --Well, first of all, we are not saying that this Court should say that a court can never... the district court can never dismiss with prejudice.

Our position is that what the district courts are obligated to do is to try to locate the case on a spectrum between the least serious technical violations and the most serious.

Unidentified Justice: And write that out.

Mr. Kneedler: Well, and the court should at least focus on that question and dismiss only when there has been a serious violation of the statutory standards.

Unidentified Justice: Do you want that in writing?

Mr. Kneedler: Pardon me?

Unidentified Justice: Do you want that in writing?

Mr. Kneedler: From this Court?

Well, it seems--

Unidentified Justice: No, from the trial court.

Mr. Kneedler: --Yes.

I think that--

Unidentified Justice: Is that what you are insisting on?

Mr. Kneedler: --Well, the court... it's not possible, and I think this case is a good example of that.

A Court of Appeals is somewhat at a loss if the district court declines to address all of the relevant factors that Congress has made relevant in the statute that must be weighed by the district court.

Unidentified Justice: Did the government ask him for that?

Mr. Kneedler: I don't know that the government went back and asked for more.

But in this case all that the district court considered, for example, with respect to the second and third factors under the statutory test, the second being the facts and circumstances of the case leading to dismissal, and the other being on the administration of the act; all the court focused on was what it termed a lackadaisical attitude of the marshall service in returning the Defendant form California to Washington.

After all, he had fled to California, and the marshall service was taking him back.

But there are other consideration that are relevant both to the facts and circumstances of the case and to the administration of justice.

And the district court did not address those other considerations.

Unidentified Justice: Frankly, what worries me is if we are going to have to take every one of these cases.

Mr. Kneedler: No, what we would hope is--

Unidentified Justice: I would hope not.

Mr. Kneedler: --And we would hope not to have to present the Court with an occasion in the future.

What we would help is that the Court would make clear that the district courts in this case really should apply two principles that we think would give a lot of guidance to the lower courts.

The first one is the one that I just mentioned, and that is that the court must consider all of the factors that Congress made relevant for the purpose of making the ultimate determination.

And that is whether offsetting those that weigh in favor of dismissal with prejudice against those that weigh against, the net circumstances of the case are sufficiently aggravated that dismissal with prejudice is an appropriate remedy after offsetting one against the other.

And the other principle that we think would provide useful guidance to the lower courts, in fact, it's generally applied by the Courts of Appeals now, is that where you have a serious offense as it's conceded here, an indictment should not be dismissed with prejudice absent a correspondingly serious violation or delay past the 70-day period, especially where, again as here, there is no prejudice to the defendant resulting from that delay.

Unidentified Justice: Do you think the district court disregarded that principle?

Mr. Kneedler: Yes, we do, because in the--

Unidentified Justice: But not the first.

Mr. Kneedler: --The district court conceded that this was a serious violation of the act.

Unidentified Justice: Yes, but your first principle, consider all of the circumstances.

Mr. Kneedler: We think the district court violated that too, because under the second and third factors in this case, the district court, as I said, only focused on what it termed the lackadaisical attitude of the marshall service which we think is in fact a considerably overdrawn view, but it did not consider the other circumstances under the second and third factor.

Unidentified Justice: Mr. Kneedler, are you saying that we should send the case back and ask him to reconsider all the facts and write a more elaborate opinion before he comes to the conclusion, or are we to decide that the--

Mr. Kneedler: No, I think this Court can properly reverse outright, and that's--

Unidentified Justice: --We can weigh those facts and say it's perfectly clear that the five-year sentence shouldn't have been taken into consideration and all the rest of it, and evaluate this history of events and say--

Mr. Kneedler: --On your first point, the district court did not rely on the five-year sentence.

Unidentified Justice: --Well, maybe he did and maybe he didn't.

He didn't put it in the opinion, but I wonder if in the back of the district judge's mind wasn't the fact that I know this man is guilty of what happened in this courtroom and I'll slug it to him on that, because five years is a pretty severe sentence for that.

I take it that's not the guideline sentence, is it?

Mr. Kneedler: That I don't know, Justice Stevens.

Unidentified Justice: But say he did in fact take that in, you say that would be impermissible for him to take--

Mr. Kneedler: No, I didn't say it was impermissible.

I just don't think it was a substantial--

Unidentified Justice: --Well, if he writes an opinion and he says, if he had pleaded guilty to the narcotics offense, I think I would have given him five years based on guidelines or other considerations, and I think I can give this man adequate punishment by giving him five years for the flight, and I also can clean up a problem in the marshall's office if I enter this remedy.

Would that be an impermissible exercise of his discretion?

Mr. Kneedler: --Yes, I think that would be, because again the escape was a separate offense, separately provided for by Congress, and--

Unidentified Justice: But in some of your filings I think you rely on the escape as something that justifies on the other side of the coin, don't you?

Mr. Kneedler: --Well, but it does factor in directly to the second and third parts of the balance of test.

Unidentified Justice: Even though he got adequately punished for it.

Mr. Kneedler: Well, but it also goes directly... yes, yes, definitely, because it goes directly to, for example, the facts and circumstances of this case.

The trial here was scheduled on the 69th day.

In fact, probably even the 69th, but within the 70-day period, and it was Respondent who didn't show up, and thereby undermined, seriously undermined the purposes of the Speedy Trial Act.

Unidentified Justice: But does that go to the question of whether there was a violation of the clock?

Mr. Kneedler: No, they also go, in our view, to the question of whether the indictment should be dismissed with prejudice, because one of the factors is the facts and circumstances of the case leading to dismissal.

The triggering event here was the Respondent not showing up for his trial.

It was a "but for" cause and he precipitated the occasion for the subsequent violation.

Unidentified Justice: In any event, the real thrust of your argument is not that he should take another look at all the facts that you describe.

But rather, that the facts are so clear that we can examine the record and decide--

Mr. Kneedler: Yes.

Unidentified Justice: --as a matter of law in this case it had to be without prejudice.

Mr. Kneedler: Right, and there are two reasons why I think that would be proper.

First, the question of whether the district court's discretion was abused under the standard of review that I was describing as a question of law.

And, second, we think, in partial response to Justice Marshall's question, that it would provide useful guidance for this Court, to the lower courts to describe this case as one that was outside of, in our view, any reasonable ambit of discretion the district court would have in a situation like this.

Unidentified Justice: Mr. Kneedler, suppose I agree with you on that that it is beyond the bounds of discretion, and suppose I also agree with you that it would have been improper for the court to make up for one mistake by making a second mistake, giving too high a sentence on the flight charge, where does that leave me?

That means I can correct one mistake, but leave the other mistake there.

I mean what if the district judge knew, well, gee, if this thing isn't going to be dismissed with prejudice and he's going to get some time on this drug charge, I really wouldn't have given him five years.

Mr. Kneedler: There are two responses to that, at least.

The first is we don't know that it was a mistake, or that the judge would have responded differently.

But the second--

Unidentified Justice: We don't know it wasn't either, though.

Mr. Kneedler: --No, that's true.

But the second point is that if the judge feels that's true, the judge... all we're talking about is reinstating the... or allowing the reindictment.

If the respondent is convicted, the district judge could make the sort of adjustment you are talking about in imposing a sentence on the narcotics offenses.

So it's not now or never in terms of taking into account any possible interplay between the two offenses.

Unidentified Justice: Do we know it will be the same judge?

It won't be the same judge.

It will be in a different... it will be in a different court now, won't it?

Mr. Kneedler: No, the escape and substantive offenses were both... were both in the Western District of Washington.

Ordinarily it would go back to the same judge.

But anyway there would be that occasion for making an adjustment if the district court imposed a sentence on an erroneous premise.

Unidentified Justice: Mr. Kneedler, when the trial judge considered this matter, did she take testimony for the marshall service?

Mr. Kneedler: No, the finding was based on affidavits.

There was an affidavit submitted by a DEA agent explaining the basis for the transportation delay.

There were actually three periods of delay that the court found in terms of finding of violation.

In terms of the remedy, the district court... the record doesn't indicate the district court considered anything beyond that.

And I think what you bring up I think raises another important point.

And that is that the statute 3162(a)(2) specifically provides that the defendant bears the burden on a motion to dismiss.

And in the Melguizo case, which is pending on certiorari here, the Court of Appeals in that case said that that includes the burden of showing that there is a systemic problem in the government's handling of prisoners or bringing cases to trial that warrants some sort of didactic sanction.

And the defendant in that case came forward with no evidence showing that there was some general problem in the administration of the Speedy Trial Act.

Similarly here, the Respondent didn't come forward with any general evidence, or at least the record doesn't indicate that there was a problem with the marshall service transporting prisoners.

Unidentified Justice: Well, the judge was obviously disturbed about something the government said or did in order to make the finding that the government had a lackadaisical attitude.

Mr. Kneedler: Well, all the district court said was that, and in fact that is--

Unidentified Justice: But there is no evidence in the record to support that; is that your position?

Mr. Kneedler: --Well, all the... no, all the district court relied on was the sequence of events in California before Respondent was returned to Washington State.

Unidentified Justice: There was an affidavit from DEA.

No affidavit from the marshall, affidavit from the United States Attorney?

Mr. Kneedler: On this point, no.

And there was a declaration by Respondent's counsel.

But on this question I think it was just the two affidavits from the DEA agent and I guess two declarations from Respondent's counsel.

Unidentified Justice: I thought it was in the record that the reason for the delay in sending him back up to Washington was the marshall was waiting to get together a bunch of prisoners so that the cost of transporting them would be less.

Mr. Kneedler: Right, that appears--

Unidentified Justice: That's in the record, isn't it?

Mr. Kneedler: --That appears in the affidavit.

That goes to one of the three periods.

It took 14 days.

The statute provides a rebuttable presumption that anything in excess of 10 days is unreasonable.

Here the affidavit stated that the... that four of the days were while the marshall was waiting to assembly a group of prisoners to take up to Washington and Oregon in order to save money.

Another period of the delay in this case are the six days that we say shouldn't have been included at all was the six days between February 22nd, when the federal case in which Respondent was to testify was over, and February 28th, when the state charges in California in which Respondent was being held was dismissed.

Well, during that period the marshall service was under no responsibility to take Respondent back to Washington because the state charges were still pending, and in fact he was being held in a state jail in San Francisco.

So during that six-day period there wasn't even a violation at all, in our view.

The remaining time is the period from March 1 of '85 to March 6th of '85, the time between when the marshall service was told that the state charges against Respondent were dismissed and Respondent's first appearance before a magistrate for a removal hearing under Rule 40(e).

And we think that that period certainly doesn't warrant dismissal on an indictment with prejudice.

For one thing, as soon as Respondent had his initial appearance, there were then three continuances, all either agreed to or asked for by his counsel to keep him in California for another month.

Respondent was not interested in going back, so far as the record shows, and these transcripts... let me add that, Justice Kennedy.

The transcripts of the removal proceedings in California are also in the record.

And they do show one additional important thing in the excerpts of record, and that is that at the removal--

Unidentified Justice: Well, don't you agree that there was eight days over?

Mr. Kneedler: --For purposes of this case here, we are not challenging that, yes; there were eight days beyond the 70 days.

Unidentified Justice: I don't understand what you're talking about.

Mr. Kneedler: There were only eight days past the 70-day period, and in our view that is so minimal that it cannot--

Unidentified Justice: Eight days is minimal?

Have you ever tried in jail for eight days?

Mr. Kneedler: --Well, Respondent was held during the relevant period in custody on the bench warrant for his failure to appear at trial in Washington when it was scheduled, and there was not Speedy Trial Act problem with that, and he was held in custody because he had escaped, or had fled to California.

So there was no prejudice relevant for purposes of this case by virtue of the fact that he was held in custody during that period.

Unidentified Justice: Well, are you asking us to announce the general rule that any delay of less than two days, five days, 10 days shall not give rise to a dismissal with prejudice?

Mr. Kneedler: Well, I don't think that there is a magical point, but the courts have generally, and we state some of these cases in our brief.

Unidentified Justice: We should superimpose a secondary line in addition to the 70-day deadline, we have sort of a second deadline where you are eligible for dismissal with prejudice?

Mr. Kneedler: Well, not an absolute deadline because, again, it might well depend on the circumstances of the case.

But where in the context... in the overall of the case the excess period is minimal--

Unidentified Justice: Would it be permissible in your view for a trial judge to say, this is the fifth time I have had a 72-day delay, two days over, and normally I don't think two days is very much, but the U.S. Attorney has done it three times in a row.

I think I will dismiss this with prejudice to let him know.

Mr. Kneedler: --Well, I would be reluctant to say on a 72-day one, but some period--

Unidentified Justice: Well, say 10, 10 72-day ones.

Say the internal procedures in the U.S. Attorney's Office just seemed regularly to not meet the 70-day one, but they always got in within 75 days.

Could the judge sooner or later say I think I'll dismiss it?

Mr. Kneedler: --At some point, yes, I think--

Unidentified Justice: And he can rely on what happened in other cases as a basis for doing that.

Mr. Kneedler: --At some point, I think the court probably could.

But again, I think the court would want to look to see what the nature of the failing in the individual cases was.

It may be that they all had individual explanations that wouldn't lend themselves to a systemic solution.

Unidentified Justice: May I ask you a question that doesn't seem to be covered by the briefs, and I'm not sure that there is anything... The states also have equivalent requirements of prompt trial within a fixed number of days, at least a number of states do.

Do you know if the normal remedy that applies in the states is dismissal with prejudice or without prejudice?

Mr. Kneedler: I don't know the current status.

There was some discussion of the comparable state laws at the time the '74 act was passed.

And my recollection is that California was cited as the leading example, and California had dismissal without prejudice.

Now I don't know what the general state of the law... but, of course, here Congress prescribed the bottom line.

Unidentified Justice: I understand.

It wouldn't be controlling anyway.

My recollection of Illinois was the other way around; that it was a flat prohibition--

Mr. Kneedler: Yes, and there might have been variation.

In fact, the ABA had recommended that in 1974, but Congress declined to adopt it.

Unidentified Justice: --Mr. Kneedler, if you should prevail here, is there any statute of limitations problem for the government that exists with all of the additional passage of time when--

Mr. Kneedler: No, not if the case is decided this term.

I believe the statute of limitations would be... the offenses were charged in December of 1983.

So if the case is disposed of this term, there would be time for a reindictment prior to December of 1988.

Unidentified Justice: --I take it you don't defend the position of the marshall service that they were waiting to get a bus for a group of prisoners, that they had the absolute duty to transport this one prisoner immediately; is that your understanding?

Mr. Kneedler: No, we don't believe that they have a duty to do it immediately.

The statute in fact sets up a rebuttable presumption that any time in excess of 10 days is unreasonable.

We don't say that--

Unidentified Justice: Is there a provision in the statute which allows delays for transportation purposes?

Mr. Kneedler: --Yes, there is an exclusion under the Speedy Trial Act, Paragraph H, which excludes time involved in the transportation of the defendant from one district to another, and that exclusion establishes a rebuttable presumption that any time in excess of 10 days is unreasonable.

I think the import of that is that just because it's over 10 days doesn't mean that it's automatically unreasonable, and the assembling of prisoners to transport prisoners in an economical fashion is certainly a permissible goal.

We just aren't raising here... we aren't challenging the finding below that that was a violation in the circumstances of this case, because we think the remedy question is of broader importance.

If there are no further questions at this point, I would like to reserve the balance of my time.

Chief Justice William H. Rehnquist: Thank you, Mr. Kneedler.

We will hear now from you, Mr. Loveseth.

ORAL ARGUMENT BY IAN G. LOVESETH, ESQ. ON BEHALF OF RESPONDENT

Mr. Loveseth: Mr. Chief Justice, and may it please the members of the Court:

In this case there was a series of delays in handling a person who had initially escaped from custody and was brought back into the system.

Now that particular situation was brought to the attention of Congress at the time that the Speedy Trial Act was passed.

And it was actually brought to their attention that in that situation the way the Congress had orchestrated the act, it was going to require that people in this situation, post-indictment fugitives who are caught subsequent to their flight, were going to have to be given priority because they were not going to restart the clock.

They were going to only give them, in terms of the Speedy Trial Act, as much time as was remaining on that speedy trial clock at the time that they failed to appear.

This was something that was considered.

This was a duty, an affirmative duty that the court, the trial court found that the United States Attorney failed.

She felt that with this duty it was his obligation to show prosecutorial initiative, make sure the marshals did it correctly, make sure the marshals were aware that there was a short amount of time left.

Now there is no reason why the Speedy Trial Act should be violated because a person does what Mr. Taylor did in this case.

Unidentified Justice: Mr. Loveseth, do you think that the trial court though has a duty to consider any prejudice to the defendant in making a decision whether to dismiss with prejudice to the state?

Mr. Loveseth: I think it is permissible for the trial court to consider prejudice.

I don't think it's mandatory.

Unidentified Justice: Do you think the trial court should be required to consider them?

Mr. Loveseth: Not when she finds that the... I don't think she would be required to consider it, or give it as much weight, particularly in a situation whereas here.

She found culpable conduct on the part of the government.

Unidentified Justice: Well, in this case, I gather the Defendant would have to remain in jail in any event because of the new charge of leaving before the trial and so forth?

Mr. Loveseth: Well, I would like to think maybe I could get him bail, but I would agree that it would substantially increase, and I think in all probability he would have stayed in.

But there is an additional prejudice here that I'm not sure anyone has recognized so far.

And that is, he was being moved from one place to another as he made his little route from San Francisco to Seattle.

A person, any person who has been in custody will tell you the most dangerous and the most heart-rending moments of any custody are the first periods of time when you go into a place.

As I calculated both is trips up and down, he was in 12 different institutions.

He came in.

Unidentified Justice: Well, I guess none of this would have happened if he hadn't fled the scene in the first place, would it?

Mr. Loveseth: Well, I think that may be true, except that Congress intended that a person who flees would not restart the clock, and that that would be taken care of by excluding the time.

His flight did not contribute to the violation of the act.

It didn't force the government in any way to lose track of what was going on, when he was going to go in front of a magistrate.

I mean there was no causation there.

Unidentified Justice: Well, except he wouldn't have to be returned from California had he not left Washington.

Mr. Loveseth: Well, I mean I will just say this.

He was caught in his home.

This case emanated out of San Francisco.

They were caught on an airplane.

He went back home.

I mean--

Unidentified Justice: Well, surely you don't suggest that his deliberate flight is an irrelevant circumstance to a--

Mr. Loveseth: --No, not at all.

Unidentified Justice: --All right.

Mr. Loveseth: I don't think it's... it didn't lead to the dismissal.

So I don't think it's considerable under the second required statutory fact, or the facts and circumstances that led to the dismissal.

It is clearly something that the Court can take into account.

The Court of Appeals acknowledged that it would be a proper factor in making a determination as to whether or not it would be dismissed with prejudice.

But she chose to focus on the conduct of the government.

They had an affirmative duty.

She also knew that the co-defendant in this case, the one that was argued was co-equally culpable and with a similar record and a similar background, had gotten three years already.

That was his sentence.

And I think when the court took into account all of the factors in this case, she felt, look, the co-defendant gets three years.

This guy ran away.

I've got to make sure the marshals, I've got to make sure the United States Attorneys understand their obligations under the act, so I am going to dismiss it with prejudice.

But I am going to give him five on the bail jump.

Unidentified Justice: That really is imputing an extraordinary amount of discretion to the district court to say that sort of shifting back and forth is permissible, it seems to me.

Mr. Loveseth: Well, I think that one of the aims of this Speedy Trial Act was to give the court a lot of discretion to deal with the act and its application in their district.

And there as a systemic problem that was recognized back in... I mean it's in the legislative history about marshals trying to assemble prisoners and move them in an economical fashion.

And I'll point out that when the writ of habeas corpus ad testificandum that was served on him after he had begun his journey back to Seattle was served on him, they had him down here in a couple of days, three, four days.

I mean when they want to move fast, they can move fast.

Unidentified Justice: You say there was a systemic problem, but you say that was what Congress... you are not saying that Judge Rothstein thought there was a systemic problem in the marshall service here.

What I read of what she wrote, it does not indicate she did.

Mr. Loveseth: Well, she felt that... she felt that the marshall was going to do what it normally did, and that is wait until prisoners get... wait until they get a substantial number of prisons and then move them along.

She felt that the prosecutor, the United State Attorney's Office was lackadaisical in not making sure that they understood that if they took longer than 10 days, I mean the act gives them 10 days to make the move.

Unidentified Justice: Well, it gives them 10 days, and then it creates a rebuttable presumption after that.

It doesn't give them a flat 10 days with everything cut off after that.

Mr. Loveseth: I understand that, but the government had an opportunity to rebut that presumption, had an opportunity to come in and talk about the marshall's problems, and they didn't do it.

There was no particular problem here.

And I think it's shown by the fact that they moved them down in four days when they wanted him back down here for a trial.

The marshall moves at the request of other agencies.

You know, if left to their own devices, they'll take their own time.

But I've had cases involved where the United States Attorney wanted someone transported, and they chartered a plane and moved him in two hours.

Unidentified Justice: Well, Mr. Loveseth, it is, after all, somewhat of a burden for the state if the case is dismissed without prejudice.

It requires them to start all over again.

So it isn't as though there isn't some penalty being imposed by virtue of just dismissing it without prejudice; isn't that right?

Mr. Loveseth: I would agree that it is a burden on the state to proceed again.

I think that what this court did was remove that burden by taking the total conduct of the Defendant, both his flight and what could be attributed to the drug case, assuming he was guilty; figured that she could cover all of that conduct with a five-year sentence, based on the fact that the co-defendant got three.

But she felt it was important to send a message to the marshall, send a message to the United States Attorney that just because a guy runs away does not mean that he loses all of his speedy trial rights, and that the system itself needed to be shaken a little bit to make sure that they were going to fulfill their responsibilities.

Unidentified Justice: In future cases when you represent the defendant in sentencing, will you concede the fact that... that the fact and circumstance that an indictment has been dismissed without prejudice should be considered adversely to your client on the remaining charges?

Mr. Loveseth: I argued that at the time of the sentencing for Mr. Taylor.

I told the judge at that time that for him to live in custody, and he was going to do time on the bail jump, with the knowledge that this case might result in a reversal and he might face additional time, or not know whether he was going to face additional time, and I argued to the court that she should sentence him for the total conduct so that he would know, even if it got reversed, that he was not going to have to spend a bunch of time.

I mean he got out about two weeks ago.

I mean he served a substantial amount of time, because they took into account in terms of the parole the fact... they assumed the underlying offense was there, and that he was guilty of it, and so his guidelines were adjusted upward, and he served a substantial amount of the time that he was sentenced to.

I think he served three and a half to four years, which would be much more than a normal person would on a five-year sentence, with no essential criminal history.

Now I think this court was focusing a lot on the number of delays.

They talked about the state court proceedings.

Well, I mean they didn't even honor the state court's order that he be returned to the state... to the court where that state proceeding was occurring.

That judge on the 20th of February said, and sent them an order, I demand the presence of this man in my court.

We have a pending cases against it.

It was a petty theft case.

The marshals ignored it.

They never produced him.

Yet, later on they argued that he was in state custody for the purposes of the act and it shouldn't be excludable.

I mean they can't really have it both ways.

He was... I mean he spent maybe a month in custody before they got him in front of the magistrate.

I would say five or six of those days he was about 300 feet from the magistrate's office in the holding cell upstairs in the federal building in San Francisco.

Yet, he never made it over to be arraigned.

He never made it over to get the process started.

And, you know, that was the kind of conduct that the court felt she couldn't countenance, and it was not... it was a hollow remedy or a hollow sanction to say that you took too long, you didn't fulfill your responsibilities under the act.

So what are we going to do to you?

We're going to give you another 70 days in order to do all of this again.

Unidentified Justice: Mr. Loveseth, do you know where your client is now?

Mr. Loveseth: The client is in a halfway house in San Francisco, Your Honor.

Unidentified Justice: So you do know where he is.

Mr. Loveseth: Sure, sure.

And I think the trial court is the one who is in a position to make these kinds of evaluations.

She is the one who has to live with the way the Speedy Trial Act is going to be administered in her district, what the attitude of the prosecutors are in these various kinds of situations.

She can evaluate all the competing interests.

She has all of the kinds of nuances in a case that a trial court knows about that don't really filter up: what she is going to give the guy later on, what the co-defendant got, what was the attitude as expressed by the United States Attorney.

I mean this United States Attorney was recalcitrant, just absolutely was not willing to accept any responsibility to actively assure that this man was brought back.

He knew there was only one day left of the speedy trial time, and yet he did nothing to make the system work a little faster, and that was a concept that was discussed in the legislative history.

It was brought to the attention of Congress by Mr. Snead from the U.S. Attorney's Office.

And he says, we're going to have to give these guys priority if you don't restart the clock.

Now, I will agree that maybe Congress ought to change that, and restart the clock and give it a little extra time, but they didn't.

The statutory scheme is as it is, and the duty was... the duty was on the prosecutor to make sure that the system responded quickly and gave this guy a chance to get back up before the Speedy Trial Act was violated.

And then in terms of the remedy, she did exactly what the statute told her to do.

She said, look, it's a serious offense, but, too, I believe it was the government's conduct that led to the dismissal and that requires a stern response.

And that if I'm going to administer the act and justice in this court and in this district, I have to respond sternly; otherwise the Speedy Trial Act is just a hollow guarantee and it doesn't really mean anything.

She had enough time to make it... I mean this is not a miscarriage of justice.

This man got five years in a situation where had it just been the bail jump, I don't think she would have even considered giving him that much.

It was the co-defendant, who they argued was of equal culpability, the same record, got three.

She had enough time to work with.

She balanced all of the factors.

She was the one charged with the responsibility to evaluate all of these considerations.

And I thought she came up with the perfect result.

It saved the government the expense of retrying him.

It saved the government the expense of going back before the grand jury.

It gave him an opportunity to get out of his pre-trial situation and start serving his time.

And yet it took into account and was responsive to what justice demanded in that situation.

He shouldn't be rewarded for running away, and he wasn't.

He didn't get one extra day that counted towards the speedy trial time.

And he was punished severely for what he did, and that was the scheme that Congress intended when they passed the Speedy Trial Act and noted that when a person runs away it doesn't restart the clock.

His flight didn't lead to the dismissal.

The culpable conduct of the government, the lackadaisical attitude, the recalcitrant attitude, that's what led to the dismissal.

And I think to put into the hands of the trial courts the discretion to deal with these complicated situations and competing interests is the best thing that this Court could do.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Loveseth.

Mr. Kneedler, you have three minutes remaining.

ORAL ARGUMENT BY EDWIN S. KNEEDLER, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Kneedler: Thank you, Mr. Chief Justice.

There are several points I would like to make.

First, Respondent is wrong that his flight did not contribute, or was not one of the facts and circumstances leading to the dismissal in this case.

As the record makes completely clear, trial was scheduled on November 19, 1984, and if Respondent had shown up like he was supposed to, the trial would have been held within the Speedy Trial Act 70-day period and there would have been no occasion for a violation at all.

And secondly, Respondent contributed by virtue of the fact that the delays found by the district court here were all involved in returning Respondent from the place to which he had fled back to the place in which he was supposed to be tried.

So Respondent cannot avoid all culpability for the Speedy Trial Act violation simply by saying he was separately prosecuted for the failure to show up.

His flight directly ties in to one of the statutory purposes on the remedy, and that is the effect of a reprosecution on the administration of the Speedy Trial Act.

Respondent undermined the purposes of the Speedy Trial Act and a reprosecution of Respondent would demonstrate that a defendant who deliberately flouts that act will not get away with it, and will be... and the charges that he sought to to avoid will in fact be prosecuted.

The second point I would like to say is that counsel says that the marshall service ignored an order of February 20th requiring the marshall to return Respondent to state custody.

In fact, that order, which appears at the excerpt of record on page 20, is directed to the sheriff of San Francisco County, not to the marshall service.

And there was no doubt that if the San Mateo Court had wanted Respondent for an appearance, it could have gotten him from the sheriff.

There is no indication in fact that the marshall service was aware of that order.

The third point is that as the record shows the Assistant U.S. Attorney in fact believed the clock restarted when Respondent was brought back to Washington.

And far from being recalcitrant, he was operating on a misunderstanding of what the act requires.

And the fourth point I wanted to make is that although the district court--

Unidentified Justice: Is that in the record, Mr. Kneedler?

Mr. Kneedler: --There is a district court brief filed by the Assistant United States Attorney and the brief in the Court of Appeals he argued that the entire period was... or the clock restarted.

The last point I wanted to make is that although the district court recited the second and third facts, the facts and circumstances and the effect on the administration of the act and justice, she only focused on the marshall service conduct.

She didn't focus on the other facts and circumstances and the effect on the administration of justice that weigh strongly against dismissal of the indictment with prejudice.

Unidentified Justice: What about the severe sentence in this case?

Is it appropriate for a trial judge to increase the sentence on the remaining count in view of the dismissal of the other ones?

That's appropriate, isn't it?

Mr. Kneedler: I don't know that it's prohibitive, but that should not... I mean if it was a totally unrelated charge, should that entitle a district court to dismiss an indictment with prejudice?

We think not.

Unidentified Justice: That's what I'm asking you.

Mr. Kneedler: We think not.

The court, in deciding whether to dismiss the indictment, should focus on the charges in that indictment and the government's conduct with respect to those charges, not on some unrelated offence, a state offense or some unrelated federal offense.

Here it happened to be related, but we don't think that that has any bearing on the court's requirement to focus on the seriousness of the charges carrying 15 years offenses, narcotics offenses, and the fact that the Defendant's flight undermined the purposes of the act.

Chief Justice William H. Rehnquist: Thank you, Mr. Kneedler.

The case is submitted.