Appeal from an order of the United States District Court for the Eastern District of New York (Platt, J.), affirming the judgment of a Magistrate convicting appellant for violating 18 U.S.C. § 1703(b), claiming a failure to comply with a provision of the Speedy Trial Act of 1974. Reversed.
Oakes, Cardamone and Pierce, Circuit Judges.
CARDAMONE, Circuit Judge:
The question presented on this appeal requires us to focus on policy considerations which undergird the Speedy Trial Act of 1974 (Act) in order to determine whether the dismissal of a criminal complaint against appellant should have been with or without prejudice. Appellant advances two arguments in support of his contention that the dismissal should have been with prejudice so as to bar his reprosecution. He first contends that the dismissal of the charges against him resulted from the government's failure to file an information or indictment within 30 days after a complaint was filed against him and that such dismissal is statutorily presumed to be with prejudice. His second claim is that upon a proper analysis of the four factors set forth in 18 U.S.C. § 3162(a)(1) (1976) -- seriousness of the offense, facts and circumstances leading to dismissal, impact of reprosecution on the administration of the Act, and impact of reprosecution on the administration of justice -- the dismissal should have been with prejudice.
On June 10, 1981 Donald Caparella, a United States Postal Service employee, was arrested after he opened a package containing a ring that he was supposed to deliver. He was charged that same day with the felony of mail theft, a violation of 18 U.S.C. § 1709 (1976), and the misdemeanor of opening mail without authority under 18 U.S.C. § 1703(b) (1976). Arraigned before a Magistrate in the Eastern District of New York, he entered a plea of not guilty and was released on his own recognizance. The Assistant United States Attorney in charge of the case failed to file either an information or indictment against Caparella prior to July 10, the 30th day after the arrest, as required by the Act, 18 U.S.C. § 3161(b) (1976). On July 31 -- 51 days after defendant's arrest -- the government made an ex parte motion for dismissal which the Magistrate granted. It is this dismissal that is the subject of the appeal before us.
The government later filed a one count misdemeanor information charging defendant with a violation of § 1703(b). Following arraignment on this charge, defendant moved to dismiss for violation of the Act. During the hearing on the motion the Magistrate acknowledged that, when he had determined whether the dismissal was with or without prejudice, he had not considered or applied those factors set forth in 18 U.S.C. § 3162(a)(1). Nonetheless, he denied the motion holding that the earlier dismissal had been without prejudice. At defendant's bench trial, the Magistrate found Caparella guilty and sentenced him to three years probation. Upon appeal to the United States District Court for the Eastern District of New York, 542 F. Supp. 826 (Platt, J.), the case was remanded to the Magistrate for him to redetermine the dismissal issue, using the factors set out in section 3162(a)(1).
At the remand hearing the Magistrate again concluded that his July 31 dismissal had been without prejudice to later reprosecution. He stated that had he only considered the second factor, the facts and circumstances leading to dismissal, i.e., the government's negligence, he would have dismissed with prejudice. But the other three factors tipped the scales in favor of dismissal without prejudice. As to the first factor, he said that the appellant's conduct was of a serious nature because it involved a breach of public trust. The Magistrate believed, with respect to the third factor, that the administration of the Act would not be impaired by a reprosecution since there was no serious delay involved in appellant's reprosecution and he was ultimately brought to trial within the total number of days contemplated under the Act. The Magistrate concluded that the administration of justice would be furthered since reprosecution would deter misconduct by other postmen. This appeal followed the district court's adoption of the Magistrate's findings.
We consider first Caparella's assertion that he was entitled to a statutory presumption that the dismissal was with prejudice. Unlike many other provisions of the Act, section 3162(a)(1) is not unfathomable. It states simply that
if, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) [30 days] . . . ., such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.
It is readily apparent that no mention of any sort of presumption is made in the language of the statute. "Absent a clear indication of legislative intent to the contrary, the statutory language controls its construction." Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n.3, 68 L. Ed. 2d 744, 101 S. Ct. 2239 (1981). Thus, we examine the statute's legislative history in order to ascertain whether such a presumption was included as part of the legislative purpose.
In the late 1960s the Advisory Committee on the Criminal Trial of the American Bar Association's Project on Minimum Standards for Criminal Justice developed the Standards Relating to Speedy Trial (ABA Standards). Its provisions included the sanction of dismissal with prejudice for violation of the time limitations established for speedy prosecutions. A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974 11-12 (1980) (Partridge). Without an effective remedy, the Committee concluded that speedy trial rules would be "largely meaningless," id. at 32. Drawing heavily upon the ABA Standards, Representative Abner Mikva introduced the "Pretrial Crime Reduction Act of 1971" before the House of Representatives. H.R. 7107, 92d Cong., 1st Sess. (1971), reprinted in Partridge at 279-85. Like the ABA Standards, the Mikva bill provided for dismissal with prejudice. In the Senate, Senator Sam Ervin, Jr. introduced a bill with substantially the same sanction. S. 895, 92d Cong., 1st Sess. (1971), reprinted in Partridge at 286-94. A 1972 Senate Subcommittee version of the bill retained the dismissal with prejudice sanction. S. 754, 93d Cong., 1st Sess. (1973), reprinted in Partridge at 295-309. In his opening statement to the Senate Judiciary Committee's Subcommittee on Constitutional Rights, Senator Ervin stated that "[a] time limit without enforcement is merely an empty plea . . . . I recognize that outright dismissal is a harsh sanction but it is the only one that promises to be effective." Speedy Trial: Hearing on S. 754 Before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 93d Cong., 1st Sess. 3-4 (1973). Despite Senator Ervin's view, the inclusion of this sanction in the bill drew heavy fire. Senator John McClellan proposed either eliminating it or postponing its effective date. Id. at 164-65. Professor (now Justice) Dallin Oaks severely criticized the sanction and termed it "too radical." Id. at 139. The 1973 Senate version of the bill retained the dismissal sanction but, as a compromise, permitted reprosecution "if the court in which the original action was pending finds that the attorney for the government has presented compelling evidence that the delay was caused by exceptional circumstances which the government and the court could not have foreseen or avoided." S. 754, 93d Cong., 2d Sess. (1974), reprinted in Partridge at 310-34. This version was passed by the Senate and sent to the House.
There, the House Judiciary Committee restored the dismissal with prejudice sanction. H.R. 17409, 93d Cong., 2d Sess. (1974), reprinted in Partridge at 335-74. The report accompanying H.R. 17409 adopted the ABA Standards position that the only effective remedy for denial of speedy trial is absolute and complete discharge. H.R. Rep. No. 1508, 93d Cong., 2d Sess. 37, reprinted in 1974 U.S. Code Cong. & Ad. News 7401, 7430. Criticism of the sanction continued and, in a letter to Representative Peter Rodino, Jr., Attorney General William Saxbe wrote "mandatory prejudicial dismissal of criminal cases not tried within arbitrary time limits can only serve to injure the public and our system of justice . . . ." 120 Cong. Rec. 41,619, 41,620 (1974), reprinted in Partridge at 217. Ultimately, the House rejected the sanction of outright dismissal with prejudice ...