United States Court of Appeals
For the First Circuit
No. 12-2049
UNITED STATES OF AMERICA,
Appellant,
v.
HASAN WORTHY, a/k/a Moto,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Howard and Thompson,
Circuit Judges.
Renée M. Bunker, Assistant United States Attorney, and Thomas
E. Delahanty II on brief for appellant.
Edward S. MacColl and Thompson, Bull, Furey, Bass & MacColl,
LLC, P.A. on brief for appellee.
November 14, 2012
Per Curiam. The United States appeals from a district
court order granting defendant Hasan Worthy's motion for release on
account of 18 U.S.C. § 3164 (2006). This court has jurisdiction
pursuant to 18 U.S.C. § 3731 ("appeal by the United States . . .
from a decision or order, entered by a district court of the United
States, granting the release of a person charged with . . . an
offense"). The following facts are undisputed.
Hasan Worthy was initially arrested and ordered to be
detained on August 6, 2010, on a charge of conspiracy to possess
cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1). An
initial indictment and several superseding indictments followed,
the last being filed on October 26, 2011, charging Worthy with
three counts related to the possession of cocaine with intent to
distribute and a fourth count related to the use of a communication
facility (specifically, a telephone) in the commission of drug
offenses. On November 1, 2011, Worthy entered a plea of not guilty
to the fourth superseding indictment.
In June and July of 2012, Worthy filed motions seeking
dismissal of the fourth superseding indictment and release from
custody under sections 3161 and 3164 of the Speedy Trial Act, 18
U.S.C. §§ 3161, 3164. At argument on July 27, 2012, the government
stipulated that it had violated the Speedy Trial Act because a
total of 147 non-excludable days had run off the 70-day trial clock
set by section 3161.
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That provision states, in relevant part:
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.
18 U.S.C. § 3161(c)(1); see also 18 U.S.C. § 3161(h) (2006 & Supp.
IV 2011) (listing periods excluded from 70-day calculation).
When the 70-day clock set by section 3161 expires, the
trial judge may dismiss the case with prejudice or without
prejudice, based on factors specified by statute (e.g., the
seriousness of the offense, the circumstances that led to the
dismissal and "the impact of a reprosecution on the administration
of [the Speedy Trial Act]"). 18 U.S.C. § 3162(a)(2). In Worthy's
case, the district judge ordered the indictment dismissed without
prejudice, paving the way for a new indictment.
At around 9:44 a.m. on August 2, 2012, the district court
ordered Worthy's discharge; approximately 15 minutes later and
without any interruption of physical custody, Worthy was re-
arrested on a new criminal complaint listing one count of
possession of a mixture or substance containing cocaine with intent
to distribute. On August 7, 2012, Worthy was re-indicted on four
counts which were virtually identical to the counts charged in the
October 2011 indictment and again pled not guilty.
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Under the statute, this new indictment, permitted because
the dismissal was without prejudice, restarted the 70-day clock
even though the new indictment charged exactly the same offenses.
18 U.S.C. § 3161(d)(1); see also United States v. Rush, 738 F.2d
497, 511 (1st Cir. 1984). However, while the trial was thus back
on track, Hasan Worthy sought immediate release pending his retrial
on the ground that his detention was governed as well by a
different clock which--he argued--was not reset by his re-
indictment.
Section 3164 specifies that a "person who is being held
in detention solely because he is awaiting trial" must be tried
"not later than ninety days following the beginning of such
continuous detention," and "[n]o detainee . . . shall be held in
custody pending trial after the expiration of such ninety-day
period required for the commencement of his trial." 18 U.S.C. §
3164.1 The reference to 90 days is misleading because the section
3161 exclusions apply and can greatly extend the time. See id. §
3164(b).
Nevertheless, the permissible detention period under the
prior complaint and indictment, like the time to start trial under
that indictment, had (the government stipulated) expired by the end
1
Worthy initially moved for his immediate release and for
dismissal of the new indictment, but section 3164 only provides for
release--not dismissal--when its provisions are violated, see, e.g.,
United States v. Feurtado, 191 F.3d 420, 426 (4th Cir. 1999), and
Worthy has abandoned his dismissal request.
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of July 2012. The new indictment unquestionably reset the 70-day
clock to zero, 18 U.S.C. § 3161(d)(1), and the government contends
that Worthy's arrest followed by the new indictment also began a
new 90-day period for detention. Worthy argues that no statute
expressly restarts the 90-day clock and, the time having expired
for detention under the old complaint and indictment, he cannot be
held pending his trial on the new indictment.
The district court, noting that neither the Supreme Court
nor the First Circuit had ruled directly on this issue, adopted the
view of the Ninth Circuit in United States v. Tirasso, 532 F.2d
1298 (9th Cir. 1976). Tirasso holds that re-indictment on the same
offense does not restart section 3164's 90-day clock, saying that
"[t]he language of section 3164 is straightforward" in this regard,
id. at 1299, although the court conceded that a defendant otherwise
subject to detention might easily flee, id. at 1300-01. In fact,
Worthy had been kept in detention under the prior indictment based
on findings that he was both a flight risk and a danger to public
safety.2
2
The government pointed to a letter that Worthy sent from jail
in which--apparently referring to the cooperating witnesses in his
case--he wrote, "I'm going to look for my rats to kill them."
According to the government, Worthy also described plans to smuggle
drugs into jail and wrote of his intention to leave the country.
In Worthy's detention hearing the magistrate judge found that, in
addition to the presumption of detention based on his charged
offenses, 18 U.S.C. § 3142(e)(2), (f)(1), the government had
demonstrated by "clear and convincing evidence" that Worthy
presented a risk of flight and a danger to the community.
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With due respect to the Tirasso court's view, we do not
agree that section 3164 compels such a result nor can we imagine
Congress intending it.
The holding in Tirasso turns on the sentence in section
3164(c) that reads, "No detainee . . . shall be held in custody
pending trial after the expiration of such ninety-day period
required for the commencement of his trial." At the extreme, one
might interpret this sentence to mean that a defendant who has been
detained for more than 90 non-excludable days may never again "be
held in custody pending trial," regardless of the charges--an
absurdity rejected by the Tirasso court itself, which said that
detention might be allowed following re-indictment for "completely
discrete offenses." 532 F.2d at 1300.
In our view, Tirasso is mistaken. The "linchpin of the
Speedy Trial Act" is section 3161(c), which requires that a
defendant be brought to trial within 70 days of the information,
indictment or initial appearance in court. United States v.
Hastings, 847 F.2d 920, 924 (1st Cir. 1988). On adoption, the
statute provided for a phase-in period during which each district
would formulate and implement a plan "to accelerate the disposition
of criminal cases . . . consistent with the time standards" set by
the Act. See Speedy Trial Act of 1974, Pub. L. No. 93-619, 88
Stat. 2076, 2081 (1975).
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Section 3164 was initially adopted as a set of "[i]nterim
limits" that would apply during the phase-in period; under these
interim limits, a defendant who was detained or designated as "high
risk" could only be held pending trial for 90 days. Id. This
provision was inserted "to assure priority" for cases involving
high-risk defendants and those who required detention pending
trial. Id.; accord United States v. Mejias, 417 F. Supp. 579, 580
(S.D.N.Y. 1976), aff'd, 552 F.2d 435 (2d Cir.), cert. denied, 434
U.S. 847 (1977); see also United States v. Thomas, 49 F.3d 253, 257
(6th Cir. 1995).
In its initial incarnation, the Speedy Trial Act did not
specify whether the various periods excluded from the calculation
of the 70-day clock under section 3161 would also be excluded from
the calculation of the 90-day clock under section 3164. This
omission led to a circuit split: the Ninth Circuit held in Tirasso
that the periods of exclusion did not apply to section 3164 and
that the expiration of the 90-day clock led to automatic release,
Tirasso, 532 F.2d at 1300, while the D.C. Circuit held in United
States v. Corley, 548 F.2d 1043, 1044 (D.C. Cir. 1976) (per
curiam), that the periods of exclusion did apply to section 3164.3
3
See also United States v. Howard, 440 F. Supp. 1106, 1108 (D.
Md. 1977) (exclusions apply to section 3164), aff'd on other
grounds, 590 F.2d 564 (4th Cir.), cert. denied, 440 U.S. 976
(1979); Mejias, 417 F. Supp. at 582-83 (same).
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In 1979 Congress sided with Corley and rejected Tirasso
on this issue by inserting a cross-reference to the section 3161
exclusions in the amended section 3164. See Speedy Trial Act
Amendments of 1979, Pub. L. No. 96-43, 93 Stat. 327, 329 (codified
as amended at 18 U.S.C. § 3164(b)). But Corley had not dealt with
whether the 90-day clock could be reset by dismissal and re-arrest
on a new complaint, and neither the original nor the amended text
of section 3164 deals expressly with the question whether the 90-
day clock restarts. The argument that the plain language resolves
the question is wrong: the statute does not even address the
restart question.
Rather, the main argument for a negative answer depends
on an inference from the fact that section 3161 says--albeit
opaquely--that the 70-day clock does start afresh. But such
negative inferences are merely possible readings, and the negative
inference in this case is unpersuasive. Section 3164, intended as
a temporary phase-in measure, never meshed perfectly with section
3161, which is evident from the original lack of explicit
exclusions in section 3164. Otherwise, high-risk defendants would
regularly have been discharged after 90 days long before the 70-
day-plus-exclusions clock required them to be tried.
As for retrials, section 3162 explicitly allows for
dismissal without prejudice after the 70-days-plus-exclusions clock
expires, 18 U.S.C. § 3162(a)(2), inviting re-indictment. If the
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70-day clock in such cases were not restarted, the new indictment
would also be subject to dismissal automatically. So the restart
of the 70-day clock is in any case implicit in the permission to
re-indict. The opaque restart provision, 18 U.S.C. § 3161(d)(1),
was merely spelling this out because of Tirasso, and its absence
from section 3164 invites no negative inference against restarting
that clock as well.
Finally, it is unimaginable that Congress intended to
permit re-indictment on the same offense but contemplated that a
dangerous defendant or one who poses a risk of flight would
automatically be freed because 90 days plus exclusions had expired
on the detention under a prior charge and indictment. One of the
purposes of assuring a speedy trial is "to avoid . . . an extended
period of pretrial freedom by the defendant during which time he
may flee, commit other crimes, or intimidate witnesses." Hastings,
847 F.2d at 924 (quoting A. Partridge, Legislative History of Title
I of the Speedy Trial Act of 1974, at 12 (1980)). To refuse to
restart the 90-day clock following arrest and a new indictment is
to frustrate a central purpose of the Speedy Trial Act itself.
Worthy's trial recently commenced in federal district
court in Maine and (it appears) has now ended with convictions on
all four counts. Since section 3164(c) applies to detainees "held
in custody pending trial," the appeal may technically be moot,
although no party has so suggested. However, the resetting of the
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section 3164 clock is a recurring issue,4 and mootness is not a bar
for issues like this one that are "capable of repetition, yet
evading review." Libertarian Party of N.H. v. Gardner, 638 F.3d 6,
12 (1st Cir. 2011) (quoting Cruz v. Farquharson, 252 F.3d 530, 534
(1st Cir. 2001)).
We therefore hold that when an indictment is dismissed
upon the motion of a defendant, the dismissal is without prejudice
and that defendant is again detained awaiting trial, section 3164's
90-day clock restarts at the moment that the defendant is re-
arrested, regardless of the nature of the charges in the new
complaint. The district court's order of release is reversed.
4
See, e.g., United States v. Colon, 831 F. Supp. 912, 916-18
(D. Mass. 1993); see also United States v. Jaimes-Oliveros, No.
4:CR 10-324-BLW, 2011 U.S. Dist. LEXIS 53553, at *12-13 (D. Idaho
May 18, 2011); United States v. Wilcox, No. 06-445, 2007 U.S. Dist.
LEXIS 94046, at *7-8 (E.D. Pa. Dec. 26, 2007).
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