Appeal by the Government from an order of the Southern District of New York, Charles H. Tenney, Judge, dismissing an indictment charging violations of federal narcotics laws, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), 846, on the ground that it was not filed within the time limits fixed by the Statement of Time Limits and Procedures for Achieving Prompt Disposition of Criminal Cases, adopted by the Southern District of New York on June 22, 1976, effective July 1, 1976. Reversed.
Hays, Feinberg and Mansfield, Circuit Judges.
MANSFIELD, Circuit Judge:
This appeal by the Government pursuant to 18 U.S.C. § 3731 from dismissal of an indictment raises the question of whether, under the Interim Statement of Time Limits and Procedures for Achieving Prompt Disposition of Criminal Cases (the "Current Plan"), which was adopted by the Southern District of New York effective July 1, 1976, pursuant to the Speedy Trial Act of 1974, 18 U.S.C. § 3165 (the "Act"), the time limits prescribed by the Current Plan are tolled during the period between the Government's dismissal of its complaint and its reinstitution of criminal proceedings by indictment. We hold that the Plan must be interpreted to toll the Act's time limits during this period and accordingly reverse the judgment of the district court.
On April 23, 1974, appellant Donald Hillegas was arrested and a complaint was filed against him by the Government in the Southern District of New York charging him with conspiring with various persons, including Frederic Glenn and Adolph Rivera, to distribute lysergic acid diethylamide ("LSD") in violation of 21 U.S.C. § 846. The complaint was based on the post-arrest statements of Glenn and Rivera, who had been cooperating with the Government after their own arrests based on their sale of LSD to undercover agents on April 16, 1974, to the effect that appellant had been their source for the LSD. Shortly after the filing of the complaint Glenn and Rivera decided to discontinue their cooperation with the Government and to contest the criminal charges against them. As a result the Government, which had based its case against appellant entirely on their statements and had no other evidence, could no longer proceed with the prosecution of appellant. Accordingly it dismissed the complaint against him on May 28, 1974.*fn1
In July 1974 an indictment was filed against Glenn, Rivera and others, to which they pleaded not guilty. Because of circumstances not relevant to the present appeal, including a successful interlocutory appeal by the Government from the suppression of evidence, proceedings with respect to the sentencing of Rivera, who had pleaded guilty as a Young Adult Offender, and an application to the Department of Justice for permission to grant immunity to Glenn, the case against Glenn and Rivera dragged on for more than two and a half years. Upon completion of that prosecution the Government in the fall of 1977 obtained the Grand Jury testimony of both Glenn and Rivera and on October 21, 1977, a two-count indictment was filed against appellant charging him with conspiring with Glenn, Rivera and others to distribute LSD in violation of 21 U.S.C. § 846 (Count One) and with distributing and possessing with intent to distribute 10,000 dosage units of LSD on April 15, 1974, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) (Count Two).
On November 10, 1977, Hillegas moved to dismiss the indictment on grounds of pre-indictment delay in violation of his constitutional rights and failure to comply with the Southern District's Current Plan. On December 16, 1977, Judge Charles H. Tenney granted the motion on the ground that the Government had failed to file the indictment within the time limits fixed by the Plan and dismissed the indictment with prejudice. Judge Tenney held that dismissal was mandated by § 3(a) of the Current Plan, which provides that where an arrest of an individual occurred prior to July 1, 1976, any indictment against him in connection with the charge must be filed within 60 days of July 1, 1976, and by § 7 of the Current Plan, which requires that the Government be ready for trial within six months from the earliest of several events which include the dates of arrest and filing of the complaint. Although we had held in United States v. Flores, 501 F.2d 1356 (2d Cir. 1974), that the Government's dismissal of a complaint against an individual should toll a six months readiness rule contained in an earlier plan adopted by the Eastern District of New York, the district court concluded that the intervening adoption of the Speedy Trial Act and of the Current Plan, with their more specific provisions, rendered Flores invalid, relying upon several more recent decisions of the Southern District of New York.*fn2 Judge Tenney further stated that even if the Flores rule remained generally applicable it should not be applied to this case, since he concluded that the Government had failed to proceed expeditiously against Hillegas even after the testimony of Glenn and Rivera became available following their convictions. He suggested that the Government should have attempted to obtain an indictment against Hillegas within 60 days after July 1, 1976, by obtaining immunity for Glenn promptly after completion of proceedings against him and bringing him before the grand jury. Thereafter, Judge Tenney explained, the Government could have sought continuances and, if Glenn or Rivera refused to testify, claimed that the time was excludable under 18 U.S.C. § 3161(h)(3)(A) because of the "unavailability of . . . an essential witness." The Judge dismissed the indictment with prejudice under § 11(e) of the Current Plan, which authorizes the court to dismiss a case for unnecessary delay pursuant to Rule 48(b), F.R.Cr.P., where the Government's delay in presenting the case to a grand jury was "unexplainable" and thus "unnecessary." In view of the dismissal under the Current Plan the court found it unnecessary to pass upon appellant's constitutional claims.
The administration of justice depends heavily upon the prompt processing of criminal proceedings. Unreasonable or unnecessary delay can not only violate the rights of an accused under the Sixth Amendment but also undermine respect for law and thus harm the public. As delays increased it was recognized, both by the bench and bar as well as by Congress, that stringent measures would have to be adopted to insure that those accused would be brought to trial as promptly as possible consistent with their constitutional rights.
In 1971, after the American Bar Association's Project on Minimum Standards for Criminal Justice had published its Standards Relating to Speedy Trial, this Circuit spearheaded efforts to reduce delay in the prosecution of criminal cases by publishing Rules Regarding Prompt Disposition of Criminal Cases. These Rules sought to place the onus on federal prosecutors to avoid delay in the prosecution of criminal cases by requiring them to be ready for trial within six months from the date of arrest or the filing of a formal charge against an accused, whichever might be earlier, or face dismissal of the charge. See Hilbert v. Dooling, 476 F.2d 355 (2d Cir. 1973) (en banc). These Rules were followed by the Supreme Court's adoption of Rule 50(b), F.R.Cr.P., effective October 1, 1972, pursuant to which each district court drafted Rules for the Prompt Disposition of Criminal Cases, effective in 1973. The philosophy behind the latter Rules was essentially the same as that expressed in those that had earlier been promulgated by this Circuit.
These initial efforts to accelerate criminal justice were followed by Congress' enactment of the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161, et seq., which took a somewhat harder line. Instead of merely requiring the prosecutor to be ready within a given period of time or face dismissal of the indictment, the Act provided that after a three-year phase-in charges might be dismissed if a defendant were not indicted, arraigned, and actually brought to trial within set periods of time totalling a maximum of 100 days from the date of arrest or service of summons after exclusion of certain necessary periods of delay. Pursuant to the Act the Southern District of New York in 1976 adopted the Current Plan, which preserved some of the features of the earlier plan enacted under Rule 50(b), including the readiness requirement imposed on federal prosecutors, but also added the terms and conditions imposed by the Speedy Trial Act itself.
The policy and purpose of the Act and of all of these speedy trial plans, including the Current Plan, have been to expedite the processing of pending criminal proceedings, not to supervise the exercise by a prosecutor of his investigative or prosecutorial discretion at a time when no criminal proceeding is pending before the court.*fn3 Indeed, to invade the latter area might well involve the legislative and judicial branches in matters that fall primarily, if not exclusively, within the jurisdiction of the executive branch under Article 2, § 3 of the Constitution, which provides that the President "shall take care that the laws be faithfully executed."
By the same token, neither the Act nor the Plans were intended to impose time limits in addition to those provided for by the Constitution with respect to government investigations undertaken while the defendant is not the subject of formal proceedings. Thus, to the extent that the Act and Current Plan seek to implement the accused's constitutional right to a speedy trial, we are constrained by the admonition of the Supreme Court that "it is either a formal indictment or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment," United States v. Marion, 404 U.S. 307, 320, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). When charges are pending against him, the accused may face restraints, including undue and oppressive incarceration, anxiety and concern attributable to the pending public accusation, interference with his freedom of movement even though he is released on bail, possible disruption of his employment, public obloquy, and the draining of his time and financial resources in the preparation of his defense. For these reasons he is entitled to a prompt disposition of the charges against him. The line is drawn, however, at the point where charges are actually pending against an individual. Although a person under investigation may suffer some apprehension or anxiety, his guarantee against pre-prosecutorial delay lies solely in the applicable statute of limitations and in the Fifth Amendment's Due Process Clause. Only if he can show that the Government failed to obtain an indictment against him before the expiration of the applicable statute of limitations or that the Government's delay violates "fundamental conceptions of justice," resulting in substantial prejudice to him, may he obtain a dismissal of the indictment based on delay at a time when no charges against him were pending. United States v. Lovasco, 431 U.S. 783, 790, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977).
It is in this context that we must consider whether, once a complaint has been dismissed for lack of proof at the instance of the Government, the clock nevertheless continues to run under the Act and Current Plan as if the case were still pending. Faced with just this situation in United States v. Flores, 501 F.2d 1356 (2d Cir. 1974), we held that the time limits of the Eastern District's Rule 50(b) Plan, which required the Government to be ready ...