United States v. Robert E. Bratcher

DOWD, District Judge,

dissenting.

I respectfully dissent. It is well established that an interlocutory appeal cannot be taken from the denial of a motion to dismiss on the basis of a violation of the Speedy Trial Act. United States v. Bilsky, 664 F.2d 613 (6th Cir.1981); United States v. Hornung, 785 F.2d 868 (10th Cir.1987). However, I dissent in the belief that a different conclusion should be reached where the district court finds that the defendant’s right to a statutory speedy trial has been violated, but contemporaneously holds, pursuant to 18 U.S.C. § 3162 (a)(2), that the dismissal of the indictment is without prejudice to a re-indictment of the defendant for the same offenses previously dismissed. The Supreme Court, while repeatedly making reference to its judicial policy against piece-meal appellate review of trial court decisions in criminal cases, has nevertheless in recent years recognized exceptions to the policy in Stack v. Boyle, 342 U.S. 1 , 72 S.Ct. 1 , 96 L.Ed. 3 (1951) as to issues of bail; Abney v. United States, 431 U.S. 651 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977) as to claims of Double Jeopardy; and Helstoski v. Meanor, 442 U.S. 500 , 99 S.Ct. 2445 , 61 L.Ed.2d 30 (1979) as to rights guaranteed by the Speech or Debate Clause.

*73 In a more recent examination of issues surrounding interlocutory appeals in criminal cases, in the case of Flanagan v. United States, 465 U.S. 259 , 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984), the Court ruled that a disqualification of a defendant’s counsel was not appealable prior to trial. Flanagan identified the three types of interlocutory orders found to be immediately appeal-able in criminal cases and then concluded that none of the decisions supporting such an appeal (Stack, Abney and Helstoski) provided authority for the claim that a disqualification order satisfies the three necessary conditions for coverage to come within the collateral-order exception as summarized in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2457 , 57 L.Ed.2d 351 (1978).

The collateral-order exception rule as summarized by Coopers & Lybrand v. Livesay requires that the trial order must at a minimum “[f]irst, ... ‘conclusively determine the disputed question’; second, ... ‘resolve an important issue completely separate from the merits of the action’; [and] third, ... ‘be effectively unreviewable on appeal from a final judgment.’ ” 465 U.S. at 265 , 104 S.Ct. at 1054 .

An interlocutory appeal of an order dismissing an indictment because of a violation of the statutory speedy trial rights of the defendant, but without prejudice to the refiling of the indictment, satisfies the first two conditions of the Coopers & Lybrand test (see, United States v. Bilsky, 664 F.2d 613, 617 (6th Cir.1981)), but not the third. It is apparent that a defendant convicted on the basis of the re-filed indictment would be able to challenge on an appeal of the subsequent conviction the “without prejudice” adjudication in connection with the dismissal of the initial indictment.

In rejecting the defendant’s claim in Flanagan , Justice O’Connor opined at page 269:

In short, whether or not petitioners’ claim requires a showing of prejudice, a disqualification order does not qualify as an immediately appealable collateral-order in a straight-forward application of the necessary conditions laid down in pri- or cases. Further, petitioners’ claim does not justify expanding the small class of criminal case orders covered by the collateral-order exception to the final judgment rule — either by eliminating any of the Coopers & Lybrand conditions or by interpreting them less strictly than the Court’s cases have done. The costs of such expansion are great, and the potential rewards are small.

The issue that emerges is whether a dismissal without prejudice where the district court finds a violation of the defendant’s statutory right to a speedy trial justifies a less strict application of the Coopers & Lybrand conditions. 1 In my view, requiring the defendant to run the gauntlet of a second indictment and trial in the face of a finding by the district court that his right to a statutory speedy trial has been violated does justify a less strict application. To hold otherwise undermines the Speedy Trial Act. Inevitably the government, in its prosecution of criminal cases, will feel less pressured to monitor the defendant’s right to a speedy trial. 2

*74 The Speedy Trial Act was adopted to protect not only the right of the defendant to a speedy trial, but also to protect the public by requiring the judicial system to promptly dispose of criminal cases.

I would hold that the defendant may challenge by way of an interlocutory appeal the decision of the trial court to dismiss without prejudice the initial indictment where the trial court has found that the defendant’s right to a statutory speedy trial was violated.

Based on the foregoing analysis, I respectfully dissent.

. United States v. Caparella, 716 F.2d 976 (2d Cir.1983) contains an excellent discussion of the statutory history behind the adoption of the Speedy Trial Act of 1974. The Congress debated for a number of years the question of whether the sanction of dismissal for a violation of the time limitations established for speedy prosecutions should be with prejudice to a subsequent prosecution of the same offense. Eventually the Congress reached a compromise which left the issue of whether the dismissal should be with or without prejudice to the district court. See 18 U.S.C. § 3162 (a)(1) and (2). Of particular interest is the quotation from then Assistant Attorney General William Rehnquist who is quoted as having stated in a Senate hearing considering the Act:

it may well be, Mr. Chairman, that the whole system of federal criminal justice needs to be shaken by the scruff of its neck, and brought up short with a relatively peremptory instruction to prosecutors, defense counsel, and judges alike that criminal cases must be tried within a particular period of time. That is certainly the import of the mandatory dismissal provisions of your bill.

716 F.2d at 981 (citations omitted).

. Alternatively, the district court, confronted with the rule that no appeal lies from a decision finding a violation of the defendant's right to a *74 statutory speedy trial but without prejudice to the refiling of the indictment, may adopt the practice of finding the dismissal to be "with prejudice” to force the appeal rather than proceed to trial with the "without prejudice" issue unresolved at the appellate level. See, e.g., United States v. Smith, 588 F.Supp. 1403 (D.C.Hawaii 1984).