concurring.
The majority opinion in this case represents a thoughtful and thorough review of the policies and legislative history behind the Speedy Trial Act. I join fully in the majority’s opinion and write only to express my views on the issue of waiver under the Speedy Trial Act as it is presented by the facts of this case.
I.
Congress granted only a judge the power to make the “ends of justice” determinations necessary to justify a continuance which then tolls the Speedy Trial time periods. Section 3161(h)(8)(A) provides that time is excludable for “[a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government. ...” (emphasis added). The Act, its policies and its legislative history leave no room for a court practice which delegates this function, either expressly or implicitly, to a deputy court clerk. The majority is correct when it writes, “[w]e cannot excuse a court practice that fails to comply with the language of the Act or to further its policies even though its objective is to keep a judge free of scheduling conflicts that result from overcrowded trial dockets.” Majority Opinion, typescript at 10. Likewise, the majority is accurate in concluding that, because of the public’s interest in speedy trials, the defendant may not waive the Act’s provisions without first receiving a continuance from a judge. Majority Opinion, typescript at 14.
Nevertheless, I must note that it was in all probability the conduct of defendant’s counsel which, even if unintentional, misled the deputy court clerk and now results in our dismissal of the indictment. One can infer that the sensitive deputy clerk was trying to be cooperative with counsel and to avoid a scheduling conflict. Perhaps a more callous clerk would have required counsel to appear before the judge and a court reporter to seek a continuance on the record. Instead the deputy clerk attempted to set a date convenient with the schedule of defense counsel.
The defendant, through her attorney, now argues that a dismissal of the indictment is mandatory because there was no formal continuance. Neither the defendant *391nor the Government sought or received an explicit continuance by the judge and the deputy clerk did not insist on one. Rather, the deputy clerk contacted the attorney for Carrasquillo and attempted to set a timely trial date. It appears that defense counsel advised the deputy clerk of other commitments covering at least some portion of the seventy days.1 The deputy clerk scheduled the trial for a date outside of seventy days on her understanding of Mr. Miller’s schedule. Since no continuance was ever formally granted by the trial judge, the defendant contends that the delay in scheduling is not excludable under § 3161(h)(8)(A).
Because of the precise language of the Act and its undisputed legislative history, there is presently no option but to dismiss the indictment. For me this dismissal is somewhat unsettling because tragically it demonstrates that a thoughtful deputy clerk who tried to accommodate a lawyer’s hectic schedule can herself become the “victim” when the very lawyer who got the time extension later repudiated her authority to grant that which she thought he had sought. There was a day in the not too distant past in our trial courts when deputy clerks and the trial bar perceived of their functions as a mutually cooperative relationship where the clerk attempted to aid (rather than to aggravate) the busy lawyer in resolving the conflicts caused by a lawyer being assigned to trial at the same time in different cases before different judges. This was done generally without tension or antagonism but instead it was particularly the tradition of the clerk’s office in the Eastern District of Pennsylvania to be as. cooperative as possible in aiding counsel. Perhaps the lesson of this case is that no longer can a clerk attempt to accommodate the trial bar without doing so at the clerk’s and the court’s peril. In criminal cases, the “good old days” of civility and mutual cooperation may be gone forever, and perhaps under the Speedy Trial Act the lawyer should always be viewed as a potential protagonist if the clerk tries to accommodate the lawyer’s schedule conflicts.
I am certain that no one could have been more shocked with the motions to dismiss than the deputy clerk who tried to accommodate counsel’s original request. I had always hoped that Leo Durocher’s admonition that “nice guys always lose” was limited to the sport of baseball, but perhaps this case illustrates that when a “nice” deputy clerk tries to be thoughtful and accommodating he or she can unfortunately and unintentionally cause a case to be “lost” if. there developes later even a bona fide dispute about the conversation or agreement between counsel and the deputy clerk. The statute gives no alternative, and only the defendant, whose lawyer speaks ambiguously, profits.
If the language of the Act and its legislative history were not so clear that the waiver doctrine does not apply, I would not hesitate to find a waiver under the facts as alleged in this case.2
. The Government in its brief at 8-9 summarizes the recollections and discrepancies between the deputy clerk and Mr. Miller in the following chart:
Deputy Clerk Mr. Miller
Date of 1 st conversation— Week of 9/15/80 —Week of 9/29/80
Substance of Mr Miller’s Statements — Carrasquillo may plead guilty, Miller unavailable for trial on 9/29/80 due to listing before Judge Shapiro in a likely two-week case. Miller to call back to advise of status —Miller would be engaged before Judge Newcomer on 10/6/80 and listed before Judge Shapiro on 10/15/80, latter case likely to take 10 days
Date of 2d conversation —10/16/80 —10/15/80
Substance of Miller’s statements— Matter before Judge Shapiro concluded, Miller to call back to advise whether Carrasquillo would change plea —unspecified [but Miller’s position is that 70-day period expired 10/14/80]
Date of 3d conversation —10/17/80
Substance of Miller’s statements— Carrasquillo will not plead guilty but would go to trial. Miller intends to file motion to dismiss on Speedy Trial Act grounds
. An analogous problem arose in United States v. Wedalowski, 572 F.2d 69 (2d Cir. 1978) where a notice of arraignment and then a second notice of arraignment postponing the date for seven days were sent to the defendant *392on the same day and were signed by an Assistant United States Attorney. Under the local court rules, the Government had to be “ready for trial within six months from the date of arrest ...” or risk dismissal of the indictment. The second Circuit when considering the seven day delay wrote as follows:
It is argued for defendant (and apparently was believed by Judge Elfin) that the continuance was granted by the United States Attorney and not by the District Court. It is said that the United States Attorney determines the date of arraignment and then advises the District Court of his determination. This is an error. It is the Court which determines its own calendars, including when a defendant will be arraigned before the Court. The form of notice of arraignment (App. 7, 8) shows its issuance from the Court. It may be that in the Western District of New York an Assistant United States Attorney sometimes signs such notice for the Clerk and mails it out. We do not approve of such practice, if it existed, or of any practice appearing to allow one party, here the government, to grant a “continuance” which in theory and in fact must come from the Court. In the case at bar, when the Assistant United States Attorney signed and sent out the second notice adjourning the arraignment (App. 8), he was not acting on his own authority but rather on behalf of the Court and on its authority.
572 F.2d at 76 (emphasis added). Of course Wedalowski was not decided under the Speedy Trial Act.