Kaufman and Mansfield, Circuit Judges, and Bryan, District Judge.*fn*
IRVING R. KAUFMAN, Circuit Judge:
We are called upon to interpret a provision of this Court's Rules Regarding Prompt Disposition of Criminal Cases, often referred to as the Second Circuit Speedy Trial Rules. In all candor, this case is somewhat of an anachronism in a legal system, such as ours, that contemplates precedential use of judicial decisions, inasmuch as the Speedy Trial Rules will shortly be replaced by a new Circuit plan for the Prompt Disposition of Criminal Cases, adopted pursuant to Rule 50(b), F.R.Cr.P.,*fn1 and under which the problem before us could not have arisen, see, infra, at 1111.
At issue in this case is the procedural interplay between Rule 4 and Rule 5(h) of the Speedy Trial Rules. Rule 4 requires the Government to be ready for trial in all criminal cases within six months from the date of arrest, service of summons, detention or the filing of a complaint or of a formal charge (other than a sealed indictment) upon which a defendant is to be tried, whichever is earliest in time. Unless the government is granted an extension of the six-month period under one or more of the exceptions found in Rule 5, the charge, upon proper application, must be dismissed. In Hilbert v. Dooling, 476 F.2d 355 (2 Cir., 1973), the Court, sitting en banc, announced that dismissals under Rule 4 are with prejudice.
Rule 5(h), the provision pertinent to our review of this matter, provides:
5. In computing the time within which the government should be ready for trial under rules 3 and 4, the following periods should be excluded:
(h) Other periods of delay occasioned by exceptional circumstances.
The question presented on this appeal is whether the Government, if it wishes to secure a Rule 5(h) extension, must do so by motion prior to the expiration of the six-month period; and whether, having failed to do so, and also having failed to be ready for trial within six months, the Government must suffer dismissal of the charge against a defendant, despite the fact that it may have a valid 5(h) claim to raise in opposition to the defendant's motion to dismiss.
The facts in this case are quite simple. In a complaint dated March 30, 1972, the Government charged Vincent Rollins with the sale of heroin to an undercover agent. Rollins was arrested on March 30, and an indictment charging him with the distribution of heroin was filed on April 28, 1972. Rollins pleaded not guilty to the charge on May 15.
On October 13, 1972, six months and thirteen days after commencement of the six-month period, Rollins moved to dismiss the charge under the Second Circuit Rules for Prompt Disposition of Criminal Cases. During argument before Judge Tyler, the Government stated that it had been making good faith efforts to dispose of the case and thus avoid the necessity of proceeding to trial. It appeared that the undercover narcotics agent who allegedly had purchased heroin from the defendant had himself come under investigation for improper narcotics transactions. It was the Government's view that if the charges of misconduct alleged against the undercover agent were in fact true, it "would affect his credibility and usability . . . in this case." The Assistant United States Attorney in charge of the Rollins prosecution stated that he had been in contact with defense counsel, attempting to negotiate a possible disposition, "and the six-months date, quite frankly, slipped past . . . ."
Although the Government pressed its claim for an extension of the six-month period due to "exceptional circumstances," as provided in Rule 5(h), Judge Tyler, who himself had sought on a number of occasions, and without success, to determine the Government's intentions concerning prosecution, concluded that "if the rule is to have any meaning at all" it must require the Government to move for a Rule 5(h) extension prior to the expiration of the six-month period. He believed that "the precept of this rule really is that even where the government, the prosecution, or, indeed, the Court, are guilty of an oversight, that's not sufficient to carry the day." Thus, despite the fact that Judge Tyler believed, as he stated, that a Rule 5(h) exception might have been justified had a motion for an extension been made prior to October 1, he concluded that he was foreclosed from reaching the merits of the Government's Rule 5(h) claim. Accordingly, he granted the defendant's motion to dismiss.
We are of the view, however, that neither the language nor the purpose of the Circuit's Speedy Trial Rules justifies the position taken by the district judge. Although the Rules are silent on whether such a request by the Government must be made prior to, or may be made after, expiration of the six-month period, we believe that the Rules, when considered in their entirety, provide for a more flexible and more rational procedural scheme than that insisted upon by the judge below. The drafters of the Rules, when they wished to require parties to move prior to expiration of the six-month period, knew how to provide for it, as evidenced by language in Rules 5(b) and 5(c), quoted in the margin.*fn2 These subsections emphasize that under certain circumstances the six-month period will not be tolled unless either defense counsel or the prosecuting attorney has previously moved for a continuance and been granted one by the district court. Continuances are granted under Rules 5(b) and (c) only after motion by counsel made prior to the expiration of the six-month period. If the drafters had intended the Government to move within the six-month period for an "exceptional circumstances" continuance under Rule 5(h), they would have followed the clear pattern of Rules 5(b) and 5(c). Because "Other periods of delay occasioned by exceptional circumstances," was intended to cover extraordinary occasions that the drafters could not envision, they opted for a broader exception to be exercised at any time at the judge's discretion.
Moreover, it must be recalled that the Second Circuit's Rules Regarding Prompt Disposition of Criminal Cases was designed to secure "the interests of the public and the rights of defendants" in speedy trials. See, Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. Neither the public interest nor the rights of defendants are diluted when the Government is permitted to make its request for an extension under Rule 5(h) after expiration of the six-month period. Ordinarily, the issue arises when the defendant has moved for a dismissal under the Speedy Trial Rules. At that time the court may consider whether "exceptional circumstances" justified the Government's failure to file a notice of readiness. If indeed there are mitigating "exceptional circumstances," the six-month period is tolled, an outcome identical to that which would have resulted had the Government moved prior to expiration of the six-month period. If the court does not find "exceptional circumstances," the case will be dismissed because the Government failed to file a notice of readiness. In either instance, neither the defendant nor the public will have suffered prejudice.
In fact, if policy were to be our guide, this Circuit's recently adopted plan for achieving prompt disposition of criminal cases, under the authority of Rule 50(b), F.R.Cr.P., clearly indicates that the Government's position in this appeal is the correct one. Rule 4 of the new 50(b) plan, ...