The Speedy Trial Act of 1974 requires that an indictment be
dismissed if the defendant is not brought to trial within a 70-day
period, and requires the court, in determining whether to dismiss
with or without prejudice, to
"consider, among others, each of the following factors: the
seriousness of the offense, the facts and circumstances . . . which
led to the dismissal; and the impact of a reprosecution on the
administration of [the Act and] of justice."
18 U.S.C. § 3162(a)(2). After respondent failed to appear for
his trial on federal narcotics charges, which was scheduled to
commence in the Federal District Court in Seattle one day prior to
the expiration of the 70-day period, 15 days not otherwise
excludable under the Act elapsed between his subsequent arrest in
California and the issuance by a federal grand jury in Seattle of a
superseding indictment. Respondent's return to Seattle for trial
during this period was delayed for various reasons, including slow
processing by the Government. The District Court granted
respondent's § 3162(a)(2) motion to dismiss with prejudice, finding
that, although respondent was charged with serious offenses, the
Government's "lackadaisical behavior" was inexcusable, and that the
administration of the Act and of justice required a stern response.
The Court of Appeals affirmed, concluding that, in light of the
case's "peculiar circumstances," the lower court had not abused its
discretion in dismissing with prejudice in order to send a strong
message to the Government that the Act must be observed.
1. The Act establishes a framework which guides district court
determinations of whether to dismiss with or without prejudice, and
appellate court review of such determinations. Pp. 487 U. S.
(a) Section 3162(a)(2)'s language establishes that, in
determining whether to dismiss with or without prejudice, courts
must consider at least the three factors specified in the section.
The Act's legislative history indicates that prejudice to the
defendant should also be considered before reprosecution is barred,
and that the decision to dismiss with or without prejudice is left
to the district court's guided discretion, with neither remedy
having priority. Pp. 487 U. S.
(b) Section 3162(a)(2) requires the district court to consider
carefully the specified factors as applied to the particular case
and to articulate
Page 487 U. S. 327
clearly their effect in rendering its decision. On appeal, the
reviewing court must undertake a more substantive scrutiny than
would be the case absent legislatively identified standards, in
order to ascertain whether the district court has properly applied
the law to the facts or whether it has ignored or slighted a factor
that Congress has deemed pertinent to the choice of remedy. When
the statutory factors have been properly considered, and supporting
factual findings are not clearly in error, the district court's
judgment of how opposing considerations balance should not be
lightly disturbed. Pp. 487 U. S.
2. Analysis of the record within the above framework establishes
that the District Court abused its discretion in deciding to bar
reprosecution, and that the Court of Appeals erred in holding
otherwise. The District Court did not explain how it factored in
the seriousness of the offenses with which respondent was charged.
Rather, the court relied heavily on its unexplained
characterization of the Government conduct as "lackadaisical,"
while failing to consider other relevant facts and circumstances
leading to dismissal. Seemingly ignored were the brevity of the
delay in bringing respondent to trial and the consequential lack of
prejudice to respondent, as well as respondent's own illicit
contribution to the delay in failing to appear for trial. The
court's desire to send a strong message to the Government that
unexcused delays will not be tolerated is, by definition,
implicated in almost every case under the Act, and, standing alone,
does not suffice to justify barring reprosecution in light of all
the other circumstances. Pp. 487 U. S.
821 F.2d 1377, reversed.
BLACKMUN, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined, and
in all but Part II-A of which SCALIA, J., joined. WHITE, J., filed
a concurring opinion, post,
p. 487 U. S. 344
SCALIA, J., filed an opinion concurring in part, post,
487 U. S. 344
STEVENS, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post,
p. 487 U. S.
JUSTICE BLACKMUN delivered the opinion of the Court.
This case requires us to consider the bounds of a district
court's discretion to choose between dismissal, with and
Page 487 U. S. 328
prejudice, as a remedy for a violation of the Speedy Trial Act
of 1974, as amended, 18 U.S.C. § 3161 et seq.
and Supp. IV).
On July 25, 1984, respondent Larry Lee Taylor was indicted by a
federal grand jury on charges of conspiracy to distribute cocaine
and possession of 400 grams of cocaine with intent to distribute.
His trial was scheduled to commence in the United States District
Court for the Western District of Washington in Seattle on November
19, 1984, the day prior to the expiration of the 70-day period
within which the Act requires the Government to bring an indicted
individual to trial. See
18 U.S.C. § 3161(c)(1). [Footnote 1
] Respondent failed to appear
for trial, and a bench warrant was issued for his arrest. On
February 5, 1985, respondent was arrested by local police officers
in San Mateo County, Cal., on state charges that subsequently were
dismissed. Respondent's return to Seattle for his federal trial was
delayed for a number of reasons, some related to his being required
to testify as a defense witness in a federal narcotics prosecution
then pending in San Francisco and others involving slow processing,
the convenience of the United States Marshals Service, and what the
District Court would later describe as the "lackadaisical" attitude
on the part of the Government. App. to Pet. for Cert. 30a. On April
24, 1985, while respondent was back in San Francisco to testify at
a retrial of the narcotics prosecution, a federal grand jury in
Seattle issued a superseding indictment against respondent, adding
Page 487 U. S. 329
charge based on his nonappearance at the scheduled November 19,
Upon his return to Seattle, respondent moved to dismiss all
charges against him, alleging that the Speedy Trial Act had been
violated. The District Court rejected the Government's argument
that, because respondent had failed to appear for trial, the 70-day
speedy trial clock began anew when respondent was arrested on
February 5, 1985. After considering the time between respondent's
nonappearance on November 19, 1984, and the issuance of the
superseding indictment on April 24, 1985, [Footnote 2
] the court determined that the time
respondent was at large, or testifying in the San Francisco
prosecution, or being held on state charges, as well as some
reasonable time for transporting him to Seattle, were excludable
under 18 U.S.C. § 3161(h). [Footnote 3
] The District Court
Page 487 U. S. 330
concluded, however, that, despite these time exclusions, 15
nonexcludable days had passed, that the clock thus had expired 14
days before the superseding indictment, and that dismissal of the
original indictment therefore was mandated. App. to Pet. for Cert.
27a-29a. [Footnote 4
The District Court found that, although respondent was charged
with serious offenses, there was "no excuse for the government's
lackadaisical behavior in this case." Id.
at 30a. The
court observed that some of the Government's explanations for the
various nonexcludable delays were inconsistent; that the Marshals
Service failed to produce respondent expeditiously when requested
to do so by a San Mateo County judge; and that, even after the
state charges were dropped, respondent was not immediately brought
before a federal magistrate on the fugitive warrant. The District
Court also noted that, after an order issued to bring respondent
back to Seattle for trial, the Government responded, but without
"dispatch," accommodating the Marshals Service's interest in moving
several prisoners at once instead of moving respondent within the
time period provided for by the Act. It said:
"[T]he court concludes that the administration of the [Act] and
of justice would be seriously impaired if the
Page 487 U. S. 331
court were not to respond sternly to the instant violation. If
the government's behavior in this case were to be tacitly condoned
by dismissing the indictment without prejudice, then the [Act]
would become a hollow guarantee."
at 30a-31a. The court dismissed the original counts
with prejudice to reprosecution. [Footnote 5
A divided panel of the United States Court of Appeals for the
Ninth Circuit affirmed. 821 F.2d 1377 (1987). The full panel agreed
with the District Court's holding that respondent's failure to
appear for trial on November 19, 1984, should not restart the
speedy trial clock, and confirmed the District Court's calculation
of 15 nonexcludable days between respondent's flight and the
issuance of the superseding indictment. Id.
Applying an abuse-of-discretion standard, the Court of Appeals
reviewed the District Court's discussion of its decision to dismiss
the drug charges with prejudice. Characterizing the lower court's
purpose as sending "a strong message to the government" that the
Act must be "observed," even with respect to recaptured fugitives,
the majority concluded:
"Under the peculiar circumstances of this case, we see no need
to disturb that ruling on appeal. The district court acted within
the bounds of its discretion."
The third judge concurred with the finding of a Speedy Trial Act
violation, but concluded that the District Court abused its
discretion in barring reprosecution. After reviewing the chronology
and disputing whether, as a factual matter, the Government had
failed to act reasonably, he felt that
"none of the delay shown in this case -- although admittedly
Page 487 U. S. 332
nonexcludable under the statute -- was of such studied,
deliberate, and callous nature as to justify dismissal with
On the Government's petition, which suggested that further
guidance was needed with respect to the application of the Speedy
Trial Act's remedy provision, § 3162, we granted certiorari. 484
U.S. 1025 (1988).
Neither party has asked this Court to review the lower courts'
decision that a violation of the Act actually occurred. [Footnote 6
] And the statute admits no
ambiguity in its requirement that, when such a violation has been
demonstrated, "the information or indictment shall be dismissed on
motion of the defendant." § 3162(a)(2). The only question before
us, therefore, is whether the District Court abused its discretion
under the Act in dismissing the indictment with prejudice, rather
than permitting reprosecution. In relevant part, the Act's remedy
provision, § 3162(a)(2), instructs:
"If a defendant is not brought to trial within the time limit
required by section 3161(c) as extended by 3161(h),
Page 487 U. S. 333
the information or indictment shall be dismissed on motion of
the defendant. . . . 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."
As is plain from this language, courts are not free simply to
exercise their equitable powers in fashioning an appropriate
remedy, but, in order to proceed under the Act, must consider at
least the three specified factors. Because Congress employed
somewhat broad and open-ended language, we turn briefly to the
legislative history of the Act for some additional indication of
how the contemplated choice of remedy should be made.
There apparently were those in Congress who thought courts
should consider prejudice to the defendant before barring
120 Cong.Rec. 41778 (1974) (remarks of
Rep. Dennis); id.
at 41795 (remarks of Rep. Conyers).
After suggesting that he might offer an amendment to add that
factor to the statute's list of considerations for the court, Rep.
Dennis agreed to establish through "legislative history" the
relevance of prejudice to the defendant. Ibid.
Representative Cohen, the author of the compromise amendment,
agreed that prejudice to the defendant was relevant, id.
at 41794-41795, but opposed adding that factor to § 3162(a)(2) for
fear that district courts would treat a lack of prejudice to a
defendant as dispositive:
"[W]e [should] not consider it as a separate independent ground
for the prosecution and open up to the Justice Department and the
prosecutor to say we have not met the time limit and we did not
take advantage of all the other time exemptions, but there is no
prejudice to the defendant. I do not think that would be a
sufficient basis in the consideration of the other factors to
Page 487 U. S. 334
if justice would be done."
120 Cong.Rec. at 41795. Congressman Cohen's amendment was
thereafter adopted without further modification. Although the
discussion in the House is inconclusive as to the weight to be
given to the presence or absence of prejudice to the defendant,
there is little doubt that Congress intended this factor to be
relevant for a district court's consideration. See, e.g.,
United States v. Kramer,
827 F.2d 1174, 1178 (CA8 1987);
United States v. Caparella,
716 F.2d 976, 980 (CA2 1983);
United States v. Bittle,
226 U.S.App.D.C. 49, 56, 699 F.2d
1201, 1208 (1983). [Footnote
The legislative history also confirms that, consistent with the
language of the statute, Congress did not intend any particular
type of dismissal to serve as the presumptive remedy for a Speedy
Trial Act violation. Prior to the passage of the Act, the dismissal
sanction generated substantial controversy in Congress, with
proponents of uniformly barring reprosecution arguing that, without
such a remedy, the Act would lack any real force, and opponents
expressing fear that criminals would unjustly escape prosecution.
A. Partridge, Legislative History of Title I
of the Speedy Trial Act of 1974, pp. 31-33 (Federal Judicial Center
1980); United States v. Caparella,
716 F.2d at 978-979
(reviewing legislative history). Eventually, in order to obtain
passage of the Act, a compromise was reached that incorporated,
through amendments on the floor of the House of Representatives,
the language that eventually became § 3162(a)(2).
Page 487 U. S. 335
120 Cong.Rec. 41774-41775, 41778, 41793-41794
(1974). The thrust of the compromise was that the decision to
dismiss with or without prejudice was left to the guided discretion
of the district court, and that neither remedy was given priority.
] See, e.g.,
United States v. Kramer,
827 F.2d at 1176; United States
790 F.2d 1265, 1267 (CA5), cert.
479 U.S. 964 (1986); United States v. Russo,
741 F.2d 1264, 1266-1267 (CA11 1984); United States v.
716 F.2d at 980.
Consistent with the prevailing view, the Court of Appeals stated
that it would review the dismissal with prejudice under an
abuse-of-discretion standard. 821 F.2d at 1385 . See, e.g.,
United States v. Kramer,
827 F.2d at 1179 (reversing dismissal
with prejudice as abuse of discretion); United States v.
741 F.2d at 1267-1268 (reversing dismissal without
prejudice as abuse of discretion); United States v.
716 F.2d at 980-981 (same); United States v.
790 F.2d at 1267 (upholding dismissal
without prejudice as within District Court's discretion). The court
did not, however, articulate what that standard required.
Page 487 U. S. 336
This Court previously has recognized -- even with respect to
another statute the legislative history of which indicated that
courts were to have "wide discretion exercising their equitable
powers," 118 Cong.Rec. 7168 (1972), quoted in Albemarle Paper
Co. v. Moody, 422 U. S. 405
422 U. S. 421
(1975) -- that "discretionary choices are not left to a court's
inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.'" Id. at 422 U. S. 416,
quoting United States v. Burr, 25 F. Cas. 30, 35 (No.
14,692d) (CC Va. 1807) (Marshall, C.J.). Thus, a decision calling
for the exercise of judicial discretion "hardly means that it is
unfettered by meaningful standards or shielded from thorough
appellate review." Albemarle Paper Co., 422 U.S. at
422 U. S.
Whether discretion has been abused depends, of course, on the
bounds of that discretion and the principles that guide its
exercise. Had Congress merely committed the choice of remedy to the
discretion of district courts, without specifying factors to be
considered, a district court would be expected to consider "all
relevant public and private interest factors," and to balance those
factors reasonably. Piper Aircraft Co. v. Reyno,
454 U. S. 235
454 U. S. 257
(1981). Appellate review of that determination necessarily would be
limited, with the absence of legislatively identified standards or
In the Speedy Trial Act, however, Congress specifically and
clearly instructed that courts "shall consider,
others, each of the following factors,
" § 3162(a)(2)
(emphasis added), and thereby put in place meaningful standards to
guide appellate review. Although the role of an appellate court is
not to substitute its judgment for that of the trial court, review
must serve to ensure that the purposes of the Act, and the
legislative compromise it reflects, are given effect. Where, as
here, Congress has declared that a decision will be governed by
consideration of particular factors, a district court must
carefully consider those factors as applied to the particular case,
and, whatever its decision, clearly articulate their effect in
order to permit meaningful appellate review.
Page 487 U. S. 337
Only then can an appellate court ascertain whether a district
court has ignored or slighted a factor that Congress has deemed
pertinent to the choice of remedy, thereby failing to act within
the limits prescribed by Congress.
Factual findings of a district court are, of course, entitled to
substantial deference, and will be reversed only for clear error.
Anderson v. Bessemer City, 470 U.
(1985). A judgment that must be arrived at by
considering and applying statutory criteria, however, constitutes
the application of law to fact, and requires the reviewing court to
undertake more substantive scrutiny to ensure that the judgment is
supported in terms of the factors identified in the statute.
Nevertheless, when the statutory factors are properly considered,
and supporting factual findings are not clearly in error, the
district court's judgment of how opposing considerations balance
should not lightly be disturbed.
Because the District Court did not fully explicate its reasons
for dismissing with prejudice the substantive drug charges against
respondent, we are left to speculate in response to some of the
parties' arguments pro and con. Respondent, for example, argues
that the District Court may have taken into account the fact that
respondent's codefendant had been sentenced on the same charges to
three years' imprisonment, and that, by dismissing the drug charges
but sentencing respondent to five years' imprisonment on the
failure-to-appear charge, it would be possible to effect
substantial justice while sending, at the same time, "a strong
message" to the Marshals Service and the local United States
Tr. of Oral Arg. 29, 32. There are several
problems with that line of reasoning, not the least of which is
that the District Court did not articulate it. To the extent that
respondent is suggesting that his codefendant's 3-year sentence
implies that the offenses with which both were charged were not
"serious," his argument is directly at odds
Page 487 U. S. 338
with the District Court's statement expressly to the contrary:
"there is no question that the drug violations with which
[respondent] is charged are serious," App. to Pet. for Cert. 30a.
We have no reason to doubt the court's conclusion in that regard.
Moreover, at the time the District Court decided to dismiss the
drug charges against respondent, he had not yet entered a plea to
the failure-to-appear charge, so that the court could not be
certain that any opportunity would arise to take the drug
violations into account in sentencing. [Footnote 9
With regard to the second factor that the statute requires a
court to consider, that is, the circumstances of the case leading
to dismissal, we find it difficult to know what to make of the
District Court's characterization of the Government's conduct as
"lackadaisical." We do not dispute that a truly neglectful attitude
on the part of the Government reasonably could be factored against
it in a court's consideration of this issue, but the District Court
gave no indication of the foundation for its conclusion. The
court's discussion following that
Page 487 U. S. 339
statement merely recounted the Speedy Trial Act violations, and
chastised the Government for failing to make "any particular show
of concern," or to "respon[d] with dispatch." Ibid.
District Court did not find that the Government acted in bad faith
with respect to respondent; neither did the court discover any
pattern of neglect by the local United States Attorney, or evidence
of what the Court of Appeals' majority later termed "the
government's apparent antipathy toward a recaptured fugitive." 821
F.2d at 1386; see also
Tr. of Oral Arg. 34-35. [Footnote 10
] Any such finding,
suggesting something more than an isolated unwitting violation,
would clearly have altered the balance. Instead, the extent of the
District Court's explanation for its determination that "the second
factor . . . tends strongly to support the conclusion that the
dismissal must be with prejudice" was that there was "no excuse"
for the Government's conduct. App. to Pet. for Cert. 30a.
Then there is the fact of respondent's failure to appear. The
Government was prepared to go to trial on the 69th day of the
indictment-to-trial period, and it was respondent, not the
prosecution, who prevented the trial from going forward in a timely
fashion. Respondent argues that he has been charged separately and
punished for his failure to appear for trial, that all the time he
was at large has been excluded from the speedy trial calculation,
and that the District Court therefore was correct in not
considering his flight as a factor in deciding whether to bar
reprosecution. Respondent also observes that the Court of Appeals
held, and the Government does not dispute here, that his failure to
appear for a trial scheduled with only one day remaining in the
indictment-to-trial period does not restart the full 70-day
Page 487 U. S. 340
speedy trial clock . See
821 F.2d at 1380-1383.
respondent's flight does not restart the clock, however, goes only
to whether there has been a violation of the Act, and not to what
the appropriate remedy should be. Respondent's culpable conduct and
in particular his responsibility for the failure to meet the timely
trial schedule in the first instance, are certainly relevant as
"circumstances of the case which led to the dismissal," §
3162(a)(2), and weigh heavily in favor of permitting reprosecution.
These factors, however, were considered by neither the District
Court nor the Court of Appeals' majority.
The Government argues that the District Court failed to consider
that the delay caused by the Government's unexcused conduct was
brief, and that there was no consequential prejudice to respondent.
The length of delay, a measure of the seriousness of the speedy
trial violation, in some ways is closely related to the issue of
the prejudice to the defendant. The longer the delay, the greater
the presumptive or actual prejudice to the defendant in terms of
his ability to prepare for trial or the restrictions on his
"[I]nordinate delay between public charge and trial, . . .
wholly aside from possible prejudice to a defense on the merits,
may 'seriously interfere with the defendant's liberty, whether he
is free on bail or not, and . . . may disrupt his employment, drain
his financial resources, curtail his associations, subject him to
public obloquy, and create anxiety in him, his family and his
Barker v. Wingo, 407 U. S. 514
407 U. S. 537
(1972) (WHITE, J.,
Page 487 U. S. 341
concurring), quoting United States v. Marion,
404 U. S. 307
404 U. S. 320
(1971). [Footnote 12
District Court found the Act's 70-day indictment-to-trial period
here was exceeded by 14 nonexcludable days, but made no finding of
prejudice. Indeed, the Court of Appeals concluded that the delay,
"although not wholly insubstantial, was not so great as to mandate
dismissal with prejudice." 821 F.2d at 1385. That court also found
that there was no prejudice to respondent's trial preparation.
And, as respondent was being held to answer not only
for the drug charges but also on a valid bench warrant issued after
he did not appear, neither does there seem to have been any
additional restrictions or burdens on his liberty as a result of
the speedy trial violation. [Footnote 13
] Thus, although the absence of prejudice is
not dispositive, in this case it is another consideration in favor
of permitting reprosecution.
Page 487 U. S. 342
The District Court's decision to dismiss with prejudice rested
largely on its conclusion that the alternative would tacitly
condone the Government's behavior, and that a stern response was
appropriate in order to vindicate the guarantees of the Speedy
Trial Act. We certainly encourage district courts to take seriously
their responsibility to consider the "impact of a reprosecution on
the administration" of justice and of the Act, § 3162(a)(2). It is
self-evident that dismissal with prejudice always sends a stronger
message than dismissal without prejudice, and is more likely to
induce salutary changes in procedures, reducing pretrial delays.
Brief for United States 31. Nonetheless, the Act does
not require dismissal with prejudice for every violation. Dismissal
without prejudice is not a toothless sanction: it forces the
Government to obtain a new indictment if it decides to reprosecute,
and it exposes the prosecution to dismissal on statute of
limitations grounds. Given the burdens borne by the prosecution and
the effect of delay on the Government's ability to meet those
burdens, substantial delay well may make reprosecution, even if
permitted, unlikely. If the greater deterrent effect of barring
reprosecution could alone support a decision to dismiss with
prejudice, the consideration of the other factors identified in §
3162(a)(2) would be superfluous, and all violations would warrant
barring reprosecution. [Footnote
Perhaps there was more to the District Court's decision than
meets the eye. It is always difficult to review a cold appellate
record and acquire a full understanding of all the
Page 487 U. S. 343
facts, nuances, and attitudes that influence a trial judge's
decisionmaking, and we undertake such close review with reluctance.
That is why the administration of the Speedy Trial Act and the
necessity for thorough appellate review require that a district
court carefully express its decision whether or not to bar
reprosecution in terms of the guidelines specified by Congress.
When the decision whether to bar reprosecution is analyzed in the
framework established by the Act, it is evident from the record
before us that the District Court abused its discretion in this
case. The court did not explain how it factored in the seriousness
of the offenses with which respondent stood charged. The District
Court relied heavily on its unexplained characterization of the
Government conduct as "lackadaisical," while failing to consider
other relevant facts and circumstances leading to dismissal.
Seemingly ignored were the brevity of the delay and the
consequential lack of prejudice to respondent, as well as
respondent's own illicit contribution to the delay. At bottom, the
District Court appears to have decided to dismiss with prejudice in
this case in order to send a strong message to the Government that
unexcused delays will not be tolerated. That factor alone, by
definition, implicated in almost every Speedy Trial Act case, does
not suffice to justify barring reprosecution in light of all the
other circumstances present. [Footnote 15
Ordinarily, a trial court is endowed with great discretion to
make decisions concerning trial schedules and to respond to abuse
and delay where appropriate. The Speedy Trial Act, however,
confines the exercise of that discretion more narrowly,
Page 487 U. S. 344
mandating dismissal of the indictment upon violation of precise
time limits and specifying criteria to consider in deciding whether
to bar reprosecution. The District Court failed to consider all the
factors relevant to the choice of a remedy under the Act. What
factors it did rely on were unsupported by factual findings or
evidence in the record. We conclude that the District Court abused
its discretion under the Act, and that the Court of Appeals erred
in holding otherwise. Accordingly, the judgment of the Court of
Appeals is reversed.
It is so ordered.
Section 3161(c)(1) reads:
"In any case in which a plea of not guilty is entered, the trial
of a defendant charged in an information or indictment with the
commission of an offense shall commence within seventy days from
the filing date (and making public) of the information or
indictment, or from the date the defendant has appeared before a
judicial officer of the court in which such charge is pending,
whichever date last occurs. If a defendant consents in writing to
be tried before a magistrate on a complaint, the trial shall
commence within seventy days from the date of such consent."
The Government's superseding indictment against respondent was
issued without first dismissing the original indictment. The
District Court apparently assumed that the period after April 24
was excludable because of the superseding indictment, see
App. to Pet. for Cert. 29a; 821 F.2d 1377, 1383 (CA9 1987). But
cf. United States v. Rojas-Contreras, 474 U.
, 474 U. S.
-235 (1985); id.
at 474 U. S.
-240 (BLACKMUN, J., concurring in judgment).
Respondent has not challenged this assumption, presumably because
he concluded that the period following April 24 was otherwise
excludable under 18 U.S.C. § 3161(h). See
Section 3161(h) provides:
"The following periods of delay shall be excluded in computing
the time within which an information or an indictment must be
filed, or in computing the time within which the trial of any such
offense must commence:"
"(1) Any period of delay resulting from other proceedings
concerning the defendant, including but not limited to -- "
"* * * *"
"(D) delay resulting from trial with respect to other charges
against the defendant;"
"* * * *"
"(G) delay resulting from any proceeding relating to the
transfer of a case or the removal of any defendant from another
district under the Federal Rules of Criminal Procedure;"
"(H) delay resulting from transportation of any defendant from
another district, . . . except that any time consumed in excess of
ten days from the date an order of removal or an order directing
such transportation, and the defendant's arrival at the destination
shall be presumed to be unreasonable;"
"* * * *"
"(3)(A) Any period of delay resulting from the absence or
unavailability of the defendant or an essential witness."
The 15 nonexcludable days included the 6 days between the end of
the federal trial in San Francisco at which respondent was
testifying and the date on which state charges against respondent
were dropped; the 5 additional days after the state charges were
dropped that it took the United States Marshals Service to bring
respondent before a federal Magistrate on the federal bench
warrant; and 4 days beyond the 10 days provided for by 18 U.S.C. §
3161(h)(1)(H) that the Marshals Service took to transport
respondent back to Seattle. App. to Pet. for Cert. 28a-29a.
The District Court rejected respondent's motion to dismiss the
failure-to-appear charge, finding that, after subtracting the
various time periods held excludable, the Government had not
violated the 30-day arrest-to-indictment provision of § 3161(b).
App. to Pet. for Cert. 31a-32a. Respondent eventually
entered a plea of guilty to this charge, and was sentenced to five
The Government asserts that both the District Court and the
Court of Appeals relied on a "now-outmoded" method of calculating
speedy trial time, and that, under another now-favored method,
there would have been 42 days of speedy trial time when respondent
became a fugitive, and thus no speedy trial violation in this case.
Brief for United States 5-6, n. 4. Inasmuch as that argument was
neither raised below nor pressed here, we do not consider it.
The Government also argues that some of the time charged by the
courts below as speedy trial time should have been excludable under
§ 3161(h)(1)(D) of the Act, see n
and thus that only 9, instead of
15, nonexcludable days elapsed after respondent's capture. Brief
for United States 24-26. Because, as is detailed below, our
decision in this case does not turn on the distinction between a
violation of 8 or of 14 days, we need not decide whether the
District Court's application of the Act was erroneous in this
Although, like JUSTICE SCALIA, we are all in favor of fostering
the democratic process, we do not agree that the statutory text
renders it "so obviou[s]," post
at 487 U. S. 345
that the presence or absence of prejudice to the defendant is one
of the "other factors" that a district court is required by the
Speedy Trial Act to consider. A brief review of the floor debate,
cited above, demonstrates that at least some Members of Congress
were uncertain about, and repeatedly sought clarification of,
precisely what they were voting for.
Because the provision at issue here was amended on the floor of
the House, and that version was subsequently accepted by the
Senate, we find largely unhelpful the preamendment Committee Report
discussions, supporting dismissal with prejudice in all or most
cases. Similarly, a House Judiciary Committee statement, made five
years later and while in the process of considering and
recommending a temporary suspension of the dismissal sanction, to
the effect that dismissal without prejudice should be "the
exception, and not the rule," H.R.Rep. No. 96-390, pp. 8-9 (1979),
cannot override the contemporaneous legislative history and create
a presumption that reprosecution will be barred. In light of the
compromise eventually reached, we are unwilling to read such a
preference into the statute, which evinces no presumptions. We are
similarly disinclined to read a contrary presumption into a statute
that began as a bill barring reprosecution in all cases, and was
amended to provide for the current balancing test as a
Even more important, respondent had not entered a guilty plea
to, or been convicted of, the drug charges. It would have been
highly improper -- and we shall not presume the District Court
assumed such unbridled discretion -- to sentence respondent with
undue harshness on one count, on the basis of the Court's untested
and unsubstantiated assumption of what the facts might have been
shown to be with regard to the drug charges, see
Oral Arg. 29-30, without the sort of inquiry conducted, in another
context, under Federal Rule of Criminal Procedure 32. Although we
realize it could be tempting to wrap up the "equities" in a single
package and, with the best of intentions, effect what could be
regarded as an essentially just result, we could not condone an
approach that would violate the rights of defendants and misapply
the Speedy Trial Act in the hope that the errors would balance out
in the end. Contrary to the dissent's suggestion, see post
at 487 U. S.
-349, we do not question here the wisdom of Congress'
decision to assess different penalties for failure to appear
depending on the severity of the underlying charge. What we cannot
countenance is a decision to punish someone more severely than
would otherwise have been considered appropriate for the charged
offense, solely for the reason that other charges had been
dismissed under the Act.
The third judge on the panel noted that most of the 15-day delay
seemed largely attributable to a misunderstanding about who was
responsible for moving respondent before the state hold was lifted
and the happenstance that notification of the lifting of the state
hold had come right before a weekend. See
821 F.2d at
A Department of Justice proposal to restart the 70-day period
following recapture of a defendant who has fled prior to trial,
A. Partridge, Legislative History of Title I of the
Speedy Trial Act of 1974, pp. 120-122 (Federal Judicial Center
1980), was rejected by Congress in favor of merely excluding "[a]ny
period of delay resulting from the absence or unavailability of the
defendant." § 3161(h)(3)(A).
In Barker v. Wingo,
the Court articulated criteria by
which the constitutional right to a speedy trial was to be judged,
but declined to specify a time period within which a defendant must
be brought to trial, leaving that kind of legislative or rulemaking
activity to others better positioned to do so. 407 U.S. at
407 U. S. 523
Congress now has taken up that responsibility, and decreed that a
defendant must be tried within 70 days of indictment, § 3161(c)(1),
with certain exceptions for specified delays, § 3161(h). If the
Government fails to try the defendant within the statutory
timeframe, the defendant is entitled to dismissal. Although
Congress specified certain factors to be considered by the district
court in deciding whether to bar reprosecution, it did not define a
second threshold that must be crossed, whether in number of days or
otherwise, before dismissal may be with prejudice. As in
we decline to undertake such rulemaking. Indeed,
during oral argument, the Government appeared to concede that it
would be appropriate under some circumstances, as, for example,
where there was a systemic problem with the procedures of a
particular United States Attorney's Office, for a district court to
bar reprosecution in a case involving a delay of only a few days.
Tr. of Oral Arg. 23.
We do not decide that as a matter of law there could never be
any prejudice to a defendant whose speedy trial rights were
violated, but who was also being held on other charges. Because
"prejudice" may take many forms, such determinations must be made
on a case-by-case basis, in the light of the facts.
The Speedy Trial Act also permits a district court directly to
punish dilatory counsel, including a prosecutor, through a monetary
fine, § 3162(b)(C), suspension from practice, § 3162(b)(D), or by
filing a report with the appropriate disciplinary committee, §
3162(b)(E). That Congress expressly provided for these sanctions is
further indication that the greater didactic effect of dismissal
with prejudice should not, by itself, overcome what consideration
of other factors would suggest is the appropriate remedy. Liberal
use of direct sanctions may serve to "send a message" whenever one
As should be evident from our discussion about the nature of a
district court's discretion under the Speedy Trial Act, see
at 487 U. S.
-337, we do not hold today, despite the dissent's
at 487 U. S. 350
that a district court can "best avoid reversal by adopting a
consistent practice of dismissing without prejudice." Indeed, we
have expressly concluded that there is no presumption in favor of
either form of dismissal. See supra
at 487 U. S. 335
and n. 8.
JUSTICE WHITE, concurring.
I join the Court's opinion, agreeing that, when a defendant,
through deliberate misconduct, interferes with compliance with the
Speedy Trial Act and a violation of the Act then occurs, dismissal
with prejudice should not be ordered unless the violation is caused
by Government conduct that is much more serious than is revealed by
JUSTICE SCALIA, concurring in part.
I join the opinion of the Court except 487 U.
which is largely devoted to establishing, through the
floor debate in the House, (1) that prejudice to the defendant is
one of the factors that the phrase "among others" in § 3162(a)(2)
refers to, and (2) that that factor is not necessarily
determinative. Both these points seem to me so utterly clear from
the text of the legislation that there is no justification for
resort to the legislative history. Assume that there was nothing in
the legislative history except statements that, unless the
defendant had been harmed by the delay, dismissal with prejudice
could not be granted. Would we permit that to govern, even though
the text of the provision does not consider that factor dominant
enough to be mentioned specifically, but just includes it within
the phrase "among othe[r] [factors]," or perhaps within the phrase
"facts and circumstances of the case which led to the dismissal"?
Or assume the opposite, that
Page 487 U. S. 345
there was nothing in the legislative history except statements
that harm to the defendant could not be considered at all. Would we
permit that to govern, even though impairment of the accused's
defense is so obviously one of the "other factors" highly relevant
to whether the Government should be permitted to reinstitute the
I think the answer to both these questions is obviously no. The
text is so unambiguous on these points that it must be assumed that
what the Members of the House and the Senators thought they were
voting for, and what the President thought he was approving when he
signed the bill, was what the text plainly said, rather than what a
few Representatives, or even a Committee Report, said it said.
Where we are not prepared to be governed by what the legislative
history says -- to take, as it were, the bad with the good -- we
should not look to the legislative history at all. This text is
eminently clear, and we should leave it at that.
It should not be thought that, simply because adverting to the
legislative history produces the same result we would reach anyway,
no harm is done. By perpetuating the view that legislative history
alter the meaning of even a clear statutory provision,
we produce a legal culture in which the following statement could
be made -- taken from a portion of the floor debate alluded to in
the Court's opinion:
"Mr. DENNIS. . . ."
"* * * *"
"I have an amendment here in my hand which could be offered, but
if we can make up some legislative history which would do the same
thing, I am willing to do it."
120 Cong.Rec. 41795 (1974). We should not make the equivalency
between making legislative history and making an amendment so
plausible. It should not be possible, or at least should not be
easy, to be sure of obtaining a particular result in this Court
without making that result apparent on the face of the bill which
both Houses consider and vote upon, which the President
Page 487 U. S. 346
and which, if it becomes law, the people must obey. I think we
have an obligation to conduct our exegesis in a fashion which
fosters that democratic process.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
This is the kind of case that reasonable judges may decide
differently. The issues have been narrowed by the Government's
abandonment of the two principal arguments that it advanced in the
District Court and in the Court of Appeals. [Footnote 2/1
] But even on the remaining question whether
the dismissal of two of the three counts pending against respondent
should have been with or without prejudice, there is room for
disagreement between conscientious and reasonable judges. The
question, however, is one that district judges are in a much better
position to answer wisely than are appellate judges.
A judge who has personally participated in the series of events
that culminates in an order of dismissal has a much better
understanding, not only of what actually happened, but also of the
significance of certain events, than does a judge who must
reconstruct that history from a confusing sequence of written
orders and motions. Moreover, the trial judge is privy to certain
information not always reflected in the appellate record, such as
her impression of the demeanor and attitude [Footnote 2/2
] of the parties, her intentions in handling
the future course of the proceedings, and her understanding of
Page 487 U. S. 347
the limited issue faced on appeal fits within the larger factual
and procedural context. I am convinced that, in this case, the
District Judge made the sort of reasoned judgment that we as
appellate judges would do well not to second-guess.
This is not a case in which dismissal with prejudice resulted in
a dangerous criminal promptly returning to society without
suffering substantial punishment for his wrongs. Rather, the
District Court only dismissed the charges dealing with narcotics
violations, while denying the motion to dismiss the
failure-to-appear charge. [Footnote
] On that count, after respondent entered a guilty plea, the
judge sentenced respondent to five years' imprisonment, the maximum
permissible sentence. That sentence was more severe than the 3-year
sentence she imposed on respondent's original codefendant, who was
found guilty on charges that paralleled the two dismissed
The majority, however, declines to consider this important fact,
concluding that it would have been improper for the District Judge
to have given any weight to the presence of the remaining charge. I
strongly disagree. Even though respondent was entitled to a
presumption of innocence on the failure-to-appear charge, I believe
it would be entirely proper to consider the strong possibility of
conviction -- given the fact that respondent's flight occurred
shortly before his case was to be tried, the fact that a
failure-to-appear prosecution generally does not involve even
Page 487 U. S. 348
issues of proof, and the further fact that the circumstances of
his subsequent arrest and detention had been fully explored in
connection with the motion to dismiss the narcotics charges -- and
to conclude that, even if respondent was guilty of the narcotics
charges, a dismissal with prejudice would not mean that he would
return to society unpunished. Although,
"at the time the District Court decided to dismiss the drug
charges against respondent, . . . the court could not be certain
that any opportunity would arise to take the drug violations into
account in sentencing,"
at 487 U. S. 338
the judge undoubtedly could have assumed that there was a high
probability that the Government could prove its case. Nor would
such an assumption have interfered with the presumption of
innocence. The presumption is, after all, for the benefit of the
accused, and not the Government.
The majority further posits that it would have been "highly
improper" for the judge, in sentencing respondent on the
failure-to-appear charge, to consider the dismissed narcotics
charges. In my view, just the contrary holds -- the facts of the
dismissed narcotics charges were highly relevant and should
properly have been considered. The statute respondent was charged
under defined two classes of violations, each carrying a different
sentencing range. Under that statute, a defendant who failed to
appear to face felony charges could be sentenced to up to five
years' imprisonment, while a defendant who failed to appear to face
misdemeanor charges could not be sentenced to more than one year's
18 U.S.C. § 3150. For the same reason
that the statute differentiated between those who fail to appear to
face felony and misdemeanor charges, I would think that the
severity of the pending charge would be relevant to the
determination of where within the 5-year range to fix sentence.
While flight to avoid a relatively minor felony charge would not
generally merit a 5-year sentence (particularly in cases in which
the possible sentence for the underlying charge is substantially
less than five years), flight to avoid a murder trial
Page 487 U. S. 349
might well warrant the maximum sentence. In fact, the current
statute now imposes four -- rather than two -- possible sentencing
ranges, varying more acutely with the severity of the underlying
alleged offense. See
18 U.S.C. § 3146 (1982 ed., Supp.
In addition, the majority appears to assume that the District
Judge intended to impose a higher sentence for the
failure-to-appear charge based on her "untested and unsubstantiated
assumption of what the facts might have been shown to be with
regard to the drug charges." Ante
at 487 U. S. 338
n. 9. Yet, there is no basis for Court's assumption that the judge
planned to take into account the narcotics charge without informing
the parties of her intention to do so, and without permitting them
the opportunity to proffer relevant evidence. Indeed, the concern
the Court expresses today did not come to fruition in this case.
Not only has respondent not complained of unfair treatment, his
attorney informs us that respondent requested
sentenced "for [his] total conduct." Tr. of Oral Arg. 32. The
greater risk of unfair treatment is presented by the possibility
that respondent will now be sentenced twice for the same
Nor can I agree with the Court's conclusion that the District
Court did not offer any "indication of the foundation for its
conclusion" that the Government's conduct leading to the Speedy
Trial violation was "lackadaisical." Ante
at 487 U. S. 338
Of particular importance, the District Judge found that the clock
ran, in part, as a result of the Marshals Service's failure to
comply with a court order from a San Mateo County judge requiring
that respondent be produced in state court. See
Pet. for Cert. 28a, 30a. Failure to comply with a court order is
certainly a serious matter, and, if anything, the District Court's
characterization of such a violation as "lackadaisical" appears
understated. Although the dissenting judge on the Court of Appeals
expressed the view that a state court judge cannot order that the
United States Marshal produce a defendant, and that respondent
Page 487 U. S. 350
been transferred to state custody at any time the local
authorities arrived at the San Francisco County jail with the
required papers, 821 F.2d 1377, 1387 (CA9 1987), the important
issue is not whether the Marshals Service was technically in
contempt, but whether the Service acted carelessly or without
regard for respondent's and the public's interest in seeing justice
administered swiftly. This is precisely the sort of issue that is
more difficult for an appellate court than for a district court to
On the record before us, I do not know whether I would have
dismissed counts I and II with prejudice had I been confronted with
the issue as a district judge. As a district judge, I would know
that a dismissal without prejudice would be a rather meaningless
sanction unless, of course, the statutes of limitations had run, in
which event the choice between dismissal with and without prejudice
would itself be meaningless. I would also know -- especially if I
had foreknowledge of the opinion announced today -- that I could
best avoid reversal by adopting a consistent practice of dismissing
without prejudice, even though such a practice would undermine the
years of labor that have gone into enacting and construing the
Speedy Trial Act. I would have assumed, however, that the choice of
remedy was one that was committed to my discretion, and that, if I
set forth a sensible explanation for my choice, it would withstand
Although the Court's opinion today boils down to a criticism of
the adequacy of the District Court's explanation for her ruling,
at 487 U. S.
-343, her opinion identifies the correct statutory
criteria and, in my view, proceeds to apply them in a clear and
sensible fashion. After explaining why she found the Government's
legal arguments to be without merit, she wrote:
"To summarize the above discussion, the conclusion is
inescapable that the government did violate the [Speedy Trial Act
(STA)]. The court rules that, even allowing the government a full
ten days to effectuate the defendant's
Page 487 U. S. 351
return to this district, there elapsed at least fourteen days of
nonexcludable time in excess of the 70-day requirement set forth in
§ 3161(c)(1) prior to April 24, 1985, the date on which the
government filed the superseding indictment against defendant.
Therefore, pursuant to § 3162(2), Counts I and II of the . . .
indictment must be dismissed. The real question is whether this
dismissal should be with or without prejudice. On this point, the
STA, § 3162(2), provides as follows:"
" 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."
"Regarding the first factor as applied to the instant case,
there is no question that the drug violations with which the
defendant is charged are serious. However, the second factor, the
circumstances of the case leading to the dismissal, tends strongly
to support the conclusion that the dismissal must be with
prejudice. There is simply no excuse for the government's
lackadaisical behavior in this case. Despite the government's
insistence on the temporary nature of the federal custody from
February 7 until February 28, 1985, the [United States Marshals
Service (USMS)] did not return defendant to state authorities after
the purported reason for that temporary custody had ended on
February 22, 1985. Even more telling is the failure of the USMS to
produce defendant on February 28, 1985, pursuant to a specific
court order from a San Mateo County judge."
"After the state hold was dropped, it took the government six
more days to arrange for defendant's initial appearance before a
magistrate, despite the fact that he had been in federal custody in
the district for almost a
Page 487 U. S. 352
month. Nor did the order of removal issued on April 3 prompt any
particular show of concern on the government's part. Instead of
responding with dispatch, the government apparently placed more
value on accommodating the convenience of the USMS than on
complying with the plain language of the STA. Pursuant to the third
factor, the court concludes that the administration of the STA and
of justice would be seriously impaired if the court were not to
respond sternly to the instant violation. If the government's
behavior in this case were to be tacitly condoned by dismissing the
indictment without prejudice, then the STA would become a hollow
guarantee. Counts I and II of the . . . indictment must be
dismissed with prejudice."
App. to Pet. for Cert. 29a-31a (footnote omitted).
Congress enacted the Speedy Trial Act because of its concern
that this Court's previous interpretations of the Sixth Amendment
right to a speedy trial had drained the constitutional right of any
"real meaning." [Footnote 2/4
Judiciary Committees in both the Senate and the House of
Representatives recognized that, unless violations of the Act
generally required dismissals with prejudice -- as was the rule in
several States -- the Act would be unlikely to accomplish its
purposes. [Footnote 2/5
] As the
Court correctly notes, this view was compromised
Page 487 U. S. 353
by amendments during the floor debates. See ante
487 U. S.
-335. The compromise, however, was one that was
intended to give district judges discretion to choose the proper
remedy based on factors identified in Judge Rothstein's opinion in
this case. See
120 Cong.Rec. 41777-41778 (1974) (remarks
of Reps. Cohen and Dennis). If that discretion is not broad enough
to sustain her decision, as the Court now concludes, the statute is
surely nothing more than the "hollow guarantee" that she
I respectfully dissent.
The Government's primary submission in the lower courts was that
the Speedy Trial Act's 70-day clock should have been restarted when
Taylor was apprehended. See
App. to Pet. for Cert.
26a-27a; 821 F.2d 1377, 1380-1383 (CA9 1987). Its second submission
was that, even if the clock was not restarted, there was no
violation of the Act. See
App. to Pet. for Cert. 27a-29a;
821 F.2d at 1383-1385.
As the majority recognizes, see ante
at 487 U. S.
-339, the Government's attitude concerning the
administration of the Speedy Trial Act is a relevant factor in
determining whether to dismiss an indictment with or without
Although it is unlikely that he was actually unaware of the fact
that the failure-to-appear charge remained pending against
respondent, the opinion of the dissenting judge on the Court of
Appeals incorrectly suggests on its face that no additional charges
remained against respondent. He wrote:
"The district court dismissed the indictment (and with it
the entire case against the defendant
) with prejudice. I
believe this was entirely uncalled for, and constituted an abuse of
821 F.2d at 1386 (emphasis supplied). The mere possibility that
the dissenting judge may have overlooked the fact that a charge
remained against respondent illustrates the danger of
second-guessing district courts in cases of this type.
The House Report notes:
"The Committee finds that the adoption of speedy trial
legislation is necessary in order to give real meaning to that
Sixth Amendment right. Thus far, neither the decisions of the
Supreme Court nor the implementation of Rule 50(b) of the Federal
Rules of Criminal Procedure concerning plans for achieving the
prompt disposition of criminal cases provides the courts with
adequate guidance on this question."
H.R.Rep. No. 931508, p. 11 (1974).
The House Committee on the Judiciary adopted the position of the
American Bar Association concerning the need for dismissal with
H.R. 17409, 93d Cong., 2d Sess., § 101
(1974). The Committee Report quotes the commentary accompanying the
ABA Standards Relating to Speedy Trial:
"'The position taken here is that the only effective remedy for
denial of speedy trial is absolute and complete discharge. If,
following undue delay in going to trial, the prosecution is free to
commence prosecution again for the same offense, subject only to
the running of the statute of limitations, the right to speedy
trial is largely meaningless. Prosecutors who are free to commence
another prosecution later have not been deterred from undue
H.R.Rep. No. 93-1508, p. 37 (1974). As the Committee Report
further notes, Judge Zirpoli, the spokesman for the Judicial
Conference, also endorsed this view. See id.
Although admitting of qualification in cases involving
"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., § 101 (1974), the Senate Committee
on the Judiciary agreed in principle with the position articulated
by the American Bar Association, see
S.Rep. No. 93-1021,
p. 16 (1974). See also
Speedy Trial, Hearings on S. 895
before the Subcommittee on Constitutional Rights of the Senate
Committee on the Judiciary, 92d Cong., 1st Sess., 21 (1971)
(statement of Sen. Hart).