Friendly, Chief Judge, and Kaufman, Hays, Feinberg, Mansfield, Mulligan, Oakes and Timbers, Circuit Judges. Friendly, Chief Judge (dissenting).
MANSFIELD, Circuit Judge:
The question raised by this petition for a writ of mandamus is whether dismissal of a criminal charge pursuant to Rule 4 of our Second Circuit Rules Regarding Prompt Disposition of Criminal Cases*fn1 (hereinafter "Prompt Disposition Rules") is with prejudice and thus precludes reindictment for the same offense. Because of the exceptional importance of the issue at the time when the petition was filed, we heard the petition en banc. See F.R.App.P. Rule 35(a)(2).*fn2 We conclude that such a dismissal is with prejudice and that mandamus is the appropriate remedy in this case. Accordingly we order the writ granted and the second indictment dismissed.
On August 5, 1971, the petitioner, John A. Hilbert, III, and one Bruce A. Turnbull, were arrested by agents of the United States Customs Service. The government contends that at the time of their arrest, Hilbert and Turnbull were in possession of two cartons containing approximately 12 kilograms of marijuana which had allegedly been imported into the United States at Kennedy Airport from Jamaica, West Indies. The two cartons were delivered under government control to a house which was then placed under surveillance. The defendants were arrested a short time after they were observed leaving the house and placing the packages in a car. Neither defendant was incarcerated.
On February 3, 1972, two days before the expiration of the six-month deadline by which the government was required by Rule 4 to be ready for trial, an indictment (the "First Indictment") was filed charging Hilbert with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2.*fn3 February 17, 1972 was then fixed for the arraignment, at which the defendants pleaded not guilty. On March 10, 1972, at a pretrial conference before Judge Dooling, the defendants moved for the dismissal of the indictment for failure to comply with Rule 4. Six days later, and over seven months after the arrests, the United States Attorney filed a notice of readiness. In a memorandum and order dated March 22, 1972, Judge Dooling, finding the government not ready for trial within six months from the date of arrests and finding none of Rule 5's exclusions applicable,*fn4 granted the motion to dismiss.
On May 30, 1972, the grand jury handed down a "superseding" indictment charging the petitioner with the same offense.*fn5 The defendants moved for the dismissal of this second indictment on the ground, among others, that Rule 4 precluded reindictment. On June 14, 1972, Judge Dooling denied the motion, holding that a new six-month period commenced as of May 30, 1972, the date of the second indictment. It was with respect to this order that Hilbert petitioned this Court for a writ of mandamus pursuant to F.R.App.P. Rule 21 and 28 U.S.C. § 1651.
The Prompt Disposition Rules were adopted pursuant to our supervisory power and 28 U.S.C. § 332. The Rules are designed to alleviate the problems of delay in criminal cases by setting standards stricter than the minimum period prescribed by the applicable statute of limitations or required by the Sixth Amendment. See Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. However, the Rules do not mandate trial within a specified period of time, as has been urged by some. See, e.g., American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial 40 (1968). Instead, we have taken a more moderate course, focusing primarily on prevention of prosecutorial delay as a means of implementing the public interest in disposition of criminal charges with reasonable dispatch. Rule 4 provides that "the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge . . . whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause under rule 5, . . . the charge shall be dismissed." (Emphasis added). The onus on the prosecution is somewhat alleviated by Rule 5, which authorizes the district court to grant extensions of the six-month period where justified by reason of such circumstances as other "proceedings concerning the defendant," the unavailability of material evidence, the unavailability of the defendant, or "other periods of delay occasioned by exceptional circumstances." However, the government is put on notice that if it does not comply with the Rules, which provide ample leeway for the legitimate needs of preparing a prosecution, it will be foreclosed from proceeding with the prosecution.
In summary, the Rules are designed to require the government to be ready to try cases promptly, subject to certain types of delay generally recognized as arising from legitimate or unavoidable causes. The purpose of Rule 4 is to insure that regardless whether a defendant has been prejudiced in a given case or his constitutional rights have been infringed, the trial of the charge against him will go forward promptly instead of being frustrated by creeping, paralytic procedural delays of the type that have spawned a backlog of thousands of cases, with the public losing confidence in the courts and gaining the impression that federal criminal laws cannot be enforced.
Although Rule 4, in providing that the "charge shall be dismissed" whenever the government is not ready for trial within the six-month period as extended, does not state explicitly that the dismissal shall be "with prejudice," our intent to mandate such a dismissal is readily apparent from the language, purpose and internal logic of the Prompt Disposition Rules. The use of the imperatives "must" and "shall" and of the word "charge" manifest an intent not only that the dismissal be mandatory but that it have a binding effect. If the Council had intended to give district courts the discretionary power to dismiss with or without prejudice, it would have used permissive language of the type found in Rule 48(b) of the F.R.Cr.P., which provides in pertinent part that "The court may dismiss the indictment, information or complaint" (emphasis added)*fn6 and, like F.R.Cr.P. 48, it would have referred to the document containing the charge, i.e., the indictment, rather than use the more inclusive term "charge." Cf. F.R.Cr.P. Rules 3 and 7(c).
Our intent is further manifested by the overall structure of the Prompt Disposition Rules, which specify a gamut of exceptions under which the six-month period could be extended. This detailed and painstaking delineation would have been largely fruitless if the sole sanction for non-compliance were a dismissal which did not preclude reindictment. As the Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases provides:
"The public interest requires disposition of criminal charges with all reasonable dispatch. The deterrence of crime by prompt prosecution of charges is frustrated whenever there is a delay in the disposition of a case which is not required by some good reason. The general observance of law rests largely upon a respect for the process of law enforcement. When the process is slowed down by repeated delays in the disposition of charges for which there is no good reason, public confidence is seriously eroded."
If the government were permitted to reindict after a Rule 4 dismissal, our Prompt Disposition Rules would for the most part be rendered a dead letter, since the government would have less incentive to push forward to trial. Moreover, if reindictment were permitted, the defendant in some instances might actually be placed in a worse position by the Prompt Disposition Rules than if they had not been adopted. Under preexisting procedures he would continue to face trial in the single pending proceeding, represented by the same trial counsel and having the benefit of expenses incurred for one bail bond and one lawyer. Reindictment, on the other hand, would start a new proceeding, which could result in a second arrest, necessitating the retention of new legal counsel, the posting of a new bond, and other steps, all at a further cost in terms of money, time and psychological distress. Cf. Green v. United States, 355 U.S. 184, 187-188, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). The instant case is illustrative. Judge Dooling, by permitting reindictment and by finding that Rule 4's sixmonth period ran from the date of the reindictment, May 30, 1972, in effect allowed the government at least 16 months from the date of the original arrest to be ready for trial and concomitantly placed the defendants in the position of risking duplicative expenses and protracted fear not only of the second prosecution but of the possibility of a third case if the court should dismiss the second indictment for failure of the government to be ready according to the Prompt Disposition Rules. Such a result certainly clashes with the underlying purposes of those Rules.
Our view that dismissal without prejudice would seriously undermine the Rules is shared by the American Bar Association's Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, 40-41 (1968), which states "that the only effective remedy for denial of speedy trial is absolute and complete discharge. . . . Prosecutors who are free to commence another prosecution later have not been deterred from undue delay."*fn7
The government suggests that the Circuit Council is powerless to promulgate a rule having the effect of mandating dismissal with prejudice because of the government's non-readiness within six months plus such extensions as are granted by the district ...