United States v. Robert D. Black ( 1984 )

ERVIN, Circuit Judge:

The issue presented in this appeal is whether a motion for rehearing en banc filed after the time authorized by Fed.R. App.P. 35(c) and 40(a) is a “proceeding concerning the defendant ... under advisement by the court” ¹ for the purpose of tolling the Speedy Trial Act. The district court held that the twenty-seven days we considered the government’s untimely motion for rehearing en banc did not toll the seventy day retrial provision of the Act.² We reverse.

I.

Robert Black was convicted of armed assault on a correctional officer at Lorton Reformatory in Lorton, Virginia. On September 28, 1982, 692 F.2d 314, we reversed the district court because the jury was erroneously instructed on the law of self defense. Subsequently, the Solicitor General concluded that traditional principles of self defense should not apply to a confrontation between a disobedient inmate and a prison guard. Therefore, the Solicitor General requested the government to seek an extension of time for filing a petition for rehearing before the original panel. After we granted the extension, the government filed for rehearing before the panel.³ A divided panel denied the rehearing petition on December 8, 1982, and our mandate issued on December 15, 1982.⁴ The Solicitor General then authorized the filing of an en banc petition. On January 12, 1983, the government requested permission to file an untimely petition for rehearing en banc, which also requested recall of the mandate. We considered the petition for twenty-seven days before denying it on February 8, 1983.

On March 3, 1983, Black moved to dismiss the indictment in the district court. Black contended that the government had violated § 3161(e) of the Act because more than seventy days had elapsed since December 15, 1982, when this court’s mandate had issued. Section 3161(e) of the Act provides that a defendant’s retrial following an appeal “shall commence within seventy days from the date the action occasioning the retrial becomes final.” Reasoning that the issuance of our mandate was the “action occasioning retrial” that triggered the Act’s time limits, the district court agreed with Black’s contention. The district court ruled that the twenty-seven days during which the en banc motion was pending should not be excluded under § 3161(h)(l)(J) from the seventy day limit, as the government argued, because the motion did not involve a “proceeding concerning the defendant ... under advisement by the court.” ⁵ According to the lower court, jurisdiction revested in it once our mandate issued; and therefore, a stay of the proceedings or a recall of the mandate was necessary to toll the Act for the twenty-seven days we held the government’s motion under advisement. Although the lower court found that all acts of the government had been made in good faith, it dismissed Black’s indictment with prejudice.

n

w, a q a • i a f n When drafting the Speedy Trial Act, Congress recognized that m processing criminal_ cases a mechanical adherence to time limits would not serve the interests of the defendant the government, the courts or society.⁶ Indeed, Congress considered flex- .. J ® « lbility necessary for the administration of » . rv £ ^ ^ ^_ —. , oq6 AACt •!I'R'RreP'■ ^°'• 15°?rat 7402“ 08 A. Bartridge, Legislative History of Title I of Speedy Trial Act of1974 M (Jed. Judicial Center 1980). Congress, therefore, ._ _ f. . _ ’ provi e exemp ions m i ° °, e seven y ay peno • e amen ments to the Act also indicate a desire to eliminate an unduly restrictive interpretation of excludable periods and to increase the Act’s flexibility. See H.R.Rep. No. 390, 96th Cong., 1st Sess. 2-12, reprinted in 1979 U.S.CODE CONG. & AD.NEWS 805, 806-16. Excludable periods in § 3161(h)(1) cover both trial and appellate proceedings, See United States v. Saintil, 705 F.2d 415, 417 (11th Cir.1983). Under the exception in § 3161(h)(l)(J), the court must stay the seventy day period for up to thirty days when “any proceeding concerning the defendant is actually under advisement by the court.”

.cv ^ v T ? § 3161(h)(l)(J) exception inapplicable on the Sround thatT)the ^«nment s motion was ufimely- Because the motlon was made ®fterJ0Uf mandatf issued>the distnct court faund that Jurisdiction revested m it and that fcal1 Aof ou™date ^as necessary to toll the ^ct. Under Fed.R.App.P. 41(a), a timely ñlmS of a P^011 for shearing stays the “andate untü dlsP0Sltl0n of the Pe“lon; However, no reacquisition of apPellat® Jurisdiction is needed to deny a peti^Ion for ^hearing filed after the mandate „ United States v. DiLapi, 651 F.2d 140, 144 n. 2 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982). Although this court ^ not Mt] reeal] Qr gt the man. ^ w0 had inherent to do g0. See Sparks v. Duval County Ranch Co., 604 F.2d 976, 979 (5th Cir.1979)) cert. denied 445 U.S. 943, 100 S.Ct. 1339, 63 L.Ed.2d 777 (1980). Had we granted the governments _ .... , 7 , in , ,, petition, we would have recalled the mandate. Cf. United States v. Dunn, 706 F.2d 153, 155 (5th Cir.1983) rthe p s of ^ g d Trial Act make c]ear that ... it , , 7, 7 , „ was not necessary to recall the mandate during the period the government’s petition for certiorari was pending before the Supreme Court).

If we had granted the government’s motion instead of denying it, no grounds would have existed for alleging a violation of the Act. We believe that dismissal of a criminal defendant’s indictment should not depend on whether we deny or grant an untimely motion for rehearing en banc. Consequently, we are of the opinion that § 3161(h)(l)(J) authorizes up to a thirty day exclusion for the time that an appellate court holds a motion for rehearing en banc under advisement, even though the motion was not timely filed.⁷ Therefore, we hold that the government’s motion was a “proceeding concerning the defendant ... under advisement by the court” that tolled the seventy day retrial period.

III.

For the foregoing reasons, the judgment of the district court is REVERSED.

1 . 18 U.S.C. § 3161(h)(1)(J). This provision states:

§ 3161. Time limits and exclusion

(h) 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:

(I) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—

(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.

2 . 18 U.S.C. § 3161(e) of the Act provides in part: § 3161. Time limits and exclusions

(e) If the defendant is to be tried again following an appeal ... the trial shall commence within seventy days from the date the action occasioning the retrial becomes final ____ The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section.

3 . 28 C.F.R. 0.20(b) (1982) requires the government to seek authorization from the Solicitor General before filing a motion for rehearing en banc. Although the Department of Justice drafted a formal request to the Solicitor General for authorization to petition for rehearing and for rehearing en banc, the Solicitor General determined that a motion for rehearing en banc would be inappropriate because the original panel must hear oral argument on an issue before it is raised in an en banc rehearing.

4 . Fed.R.App.P. 41(a) provides in part:

A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate shall issue 7 days after the entry of the order denying the petition unless the time is shortened or enlarged by order.

5 . Excluding the 27 day period, only 51 days had elapsed from the issuance of the mandate to the date of Black’s motion to dismiss.

6 . The House Judiciary Committee stated that both delay and haste in the processing of criminal cases must be avoided; neither of these tactics inures to the benefit of the defendant, the Government, the courts nor society. The word speedy does not, in the Committee’s view, denote assembly-line justice, but efficiency in the processing of cases which is commensurate with due process." H.R.Rep. No. 1508, 93rd Cong., o TT o ^nr-vr2d Sess. 15, reprinted in 1974 U.S.CODE CONG. . m „„„„ , (herelnafter Clted as H.R.Rep. No. 1508).

7 . We disagree with the dissent’s interpretation of “proceeding” as meaning only a "proceeding timely instituted.” This interpretation reads in a restriction that is contrary to the broad unqualified literal language of § 3161(h)(l)(J).