United States v. Mohammad Reza Mehrmanesh, Patricia Mehrmanesh, and Abofazl Mehrmanesh , 652 F.2d 766 ( 1981 )

CANBY, Circuit Judge.

This appeal presents a question of interpretation of the provision of the Speedy Trial Act imposing the sanction of dismissal for violation of the Act’s time limits. 18 U.S.C. § 3163(c). Before reaching that issue, however, we are presented with a threshold question whether the denial of a motion to dismiss for violation of the Speedy Trial Act is appealable prior to final judgment. We conclude that the order is not appealable, and accordingly dismiss the appeal. We also deny defendants’ request for mandamus relief.

FACTS:

On March 20, 1980, the defendants were arrested and charged with importing and possessing heroin. A preliminary hearing was held April 10 and probable cause was found. On April 23, the government was granted an additional 30 days to file an indictment. The extended period for filing the indictment based on the March 20 complaint expired on May 19, but the defendants were not indicted until July 9. On July 14, the defendants moved to dismiss the indictments, which they alleged violated the Speedy Trial Act time limits.

The district court denied the motions to dismiss. The court reasoned that although the delay between arrest and indictment exceeded the 30-day period set by the Speedy Trial Act, the statutory sanction of dismissal was not applicable in this case. The statute provides that the sanction of dismissal “shall become effective and apply to all cases commenced by arrest or summons, and all informations or indictments filed, on or after July 1, 1980.” 18 U.S.C. § 3163(c). The district court determined that the dismissal sanction did not apply in this ease because the arrest occurred before July 1,1980. All three defendants appealed this finding. We conclude that we lack jurisdiction of the appeal because it is not from a final judgment and it fails to meet the requirements of a proper interlocutory appeal under Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); 28 U.S.C. § 1291.

THE INTERLOCUTORY APPEAL:

In our judicial system, interlocutory appeals are not favored. The reasons for this policy have just been thoroughly set forth by this court in United States v. Garner, 632 F.2d 758 (9th Cir. 1980). The policy is embodied in 28 U.S.C. § 1291, which grants the federal courts of appeals jurisdiction to review all final decisions of the district courts. Typically, this restricts review to final judgments. There is an exception to this general rule, however, which allows appeals from “collateral orders” which affect rights that are independent of the merits of the action and too important to be denied prompt review. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1959); Abney v. United States, 431 U.S. 651, 657-59, 97 S.Ct. 2034, 2039-2040, 52 L.Ed.2d 651 (1977).

In Abney, the Supreme Court established a three-part test to determine whether an interlocutory appeal should be allowed. An order before final judgment may be appealed if: (1) it completely disposes of the issue in question; (2) it is totally unrelated to the merits of the case; and (3) the right asserted would be irreparably lost if the appeal were delayed until after final judgment. Upon this analysis, the Supreme Court has held that the denial of a pretrial motion to dismiss is appealable when the defense asserted is double jeopardy, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), or the speech and debate clause of the Constitution, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). In United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980), this court used the Abney analysis to determine that the denial of a motion to dismiss on the grounds of vindictive prosecution was also appealable. In each of these instances the right being enforced was the right to be free of the trial or prosecution itself.

To be contrasted with these cases is United States v. McDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), in which the Supreme Court held that denial of a constitutional speedy trial claim was not appealable before final judgment. The Supreme Court determined that because the sixth amendment speedy trial clause is designed to protect the defendant’s ability to defend himself at trial, a speedy trial claim fails each part of the Abney test.

The key to the McDonald decision is found in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which established a balancing test to determine whether a defendant’s speedy trial right has been violated. The Barker Court identified three evils which the sixth amendment speedy trial guarantee prevents: (1) oppressive pre-trial incarceration; (2) anxiety and concern of the accused; and (3) impairment of his or her ability to defend at trial. The Barker Court, however, labeled the last interest as the most important. Id. at 532, 92 S.Ct. at 2193. The Court said that it is prejudice through a loss of evidence and the disappearance of witnesses because of pretrial delay that the sixth amendment speedy trial guarantee was designed to prevent.

Accepting the Barker analysis, the McDonald Court found that a pretrial claim based upon the sixth amendment speedy trial clause fails the Abney test. The denial of such a claim before trial does not dispose of the issues completely, and is not easily separated from the merits of the case because the extent of the prejudice suffered by the defendant cannot be measured accurately until after trial. Perhaps the most important point in the McDonald opinion, however, is that “[i]t is the delay before trial, not the trial itself that offends the constitutional guarantee of a speedy trial.” 435 U.S. at 861, 98 S.Ct. at 1553. Proceeding with the trial following denial of a sixth amendment speedy trial claim does not cause or compound the harm suffered by the defendant. Therefore, the right is as easily vindicated after trial as before. In contrast, the evil to be prevented by the double jeopardy and the speech and debate clauses is the trial itself. The sixth amendment speedy trial clause, however, “does not . .. encompass a ‘right not to be tried’ which must be upheld prior to trial if it is to be enjoyed at all.” Id.

It is true that a claim under the Speedy Trial Act differs in some significant ways from a claim under the sixth amendment speedy trial clause. The Speedy Trial Act was passed at least partly because Congress was dissatisfied with the Supreme Court’s decision in Barker. Congress recognized that a defendant who must wait long periods to be tried suffers from a “magnitude of disabilities,” only one of which is the inability to defend himself at trial. A defendant also suffers from severe emotional and financial strain when forced to undergo a non-speedy trial. H.R.Rep. No. 93 — 1508, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 7401, 7408. See also United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971) (cited by the House report). Therefore, Congress devised a scheme to circumvent the Barker opinion and put teeth into the speedy trial guarantee. The scheme operates like a statute of limitations. The guarantee is violated if the prosecution oversteps the time limits of the act. Under the Speedy Trial Act there is no need to measure prejudice to the defendant.

At its simplest, a statutory speedy trial claim produces somewhat different results under the three-part Abney test than does the sixth amendment claim, but it nevertheless fails in the end to qualify for an interlocutory appeal. When the Speedy Trial Act claim is based on a purely arithmetical excess over the number of permissible days to indictment or trial, an order denying the claim disposes of the matter completely, and the issue is wholly unrelated to the merits of the case. The first two requirements of Abney are therefore satisfied. The third requirement, however, is not. Contrary to the defendants’ contention, the right to a dismissal under the Speedy Trial Act does not embody a “right not to be tried” in the unusual sense that the double jeopardy and speech and debate clauses do. It is the delay and not the trial that is the target of the Act. Proceeding with trial does not cause or compound the harm at which the statute is aimed. Nor does the fact that a dismissal may be with prejudice render its denial appealable. See United States v. Carnes, 618 F.2d 68 (9th Cir. 1980) (motion to dismiss or acquit for insufficient evidence); Smith v. Benedict, 279 F.2d 211 (7th Cir. 1960) (motion to dismiss claim as time-barred). A defendant’s rights under the Speedy Trial Act will not be “irreparably lost” if he or she cannot appeal before trial. Those rights can still be vindicated by appeal after trial or, when an indisputable mathematical error or a truly egregious delay has occurred, by mandamus before trial.

Our conclusion that the denial of a Speedy Trial Act claim is not appealable is reinforced by the anticipation that most such claims will not center on purely arithmetical disputes. They are more likely to deal with the question whether certain blocks of time were properly excluded from calculation of the maximum permissible periods between arrest and indictment or indictment and trial. For example, the Act excludes delays resulting from continuances granted by the trial judge “on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). Factors which the judge shall consider in making such a determination include whether the failure to grant a continuance would be likely to “result in a miscarriage of justice” or would deny counsel the time for adequate or effective preparation for trial. 18 U.S.C. § 3161(h)(8)(B)(i), (ii) and (iv). These are delicate and discretionary determinations that depend largely on the anticipated character of the trial. To the extent that they form the basis for denial of a pre-trial motion to dismiss, the denial neither disposes of the matter completely nor is totally unrelated to the merits of the case. In that event, none of the three requirements of Abney is met. Interlocutory appeals of such cases would call for appellate review upon unnecessarily incomplete facts and would simply add to the problem of pre-trial delay. They are quite properly outside of our jurisdiction.

THE PETITION FOR MANDAMUS:

The defendants have asked alternatively for mandamus relief from the district court’s order. Mandamus under 28 U.S.C. § 1651 is an appropriate remedy only in extraordinary circumstances. Allied Chemical Corp. v. Daiflon, Inc., - U.S. -, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967); Bau-man v. United States District Court, 557 F.2d 650, 654 (9th Cir. 1977). This court has stated that mandamus is appropriate only when the district court has made a clear and indisputable mistake. Arthur Young & Co. v. United States District Court, 549 F.2d 686, 691 (9th Cir. 1977). That standard would be met if the trial judge had simply miscounted the number of days permitted under the Speedy Trial Act. Nothing of the sort occurred here.

The court below interpreted the Act to mean that the sanctions for exceeding the permissible time between arrest and indictment were not applicable when the arrests occurred before July 1,1980, as they did in this case. The wording of the Act may be subject to another interpretation, but we cannot say that the district court’s reading was an unreasonable one. The court had no precedent to guide it, and its reading is supported by the Judicial Conference of the United States. Committee on the Administration of the Criminal Law, Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974 66-67 (Dec. 1979 version). Even if the trial court made an error of law — a question we do not reach— that fact itself does not render its decision subject to correction by mandamus, for “then every interlocutory order which is wrong might be reviewed under the All Writs Act.” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953); Will v. United States, 389 U.S. 90, 98 n.6, 88 S.Ct. 269, 275 n.6, 19 L.Ed.2d 305 (1967); Bauman v. United States District Court, 557 F.2d 650, 659-60 (9th Cir. 1977). The question decided below was a close one. Whether or not the district court’s interpretation is ultimately upheld on appeal after final judgment, we cannot now find it to be “clearly erroneous as a matter of law as that term is used in mandamus analysis.” Bauman v. United States District Court, 557 F.2d at 660. The writ is accordingly denied.

CONCLUSION:

In closing, we note that the motion to dismiss and the arguments in this case were directed solely to the sanctions imposed by the Speedy Trial Act, 18 U.S.C. §§ 3162 and 3163. The district court also has discretionary power, apart from those provisions, to dismiss an indictment on grounds of delay. Fed.R.Crim.P. 48(b). See United States v. Carpenter, 542 F.2d 1132, 1134 n.2 (9th Cir. 1976); United States v. Peters, 587 F.2d 1267, 1270 n.6 (D.C.Cir. 1978). Our decision in this case is without prejudice to the district court’s entertaining motions addressed to that- discretionary power.

Appeals dismissed.

Petitions for writs of mandamus denied.