concurring:
I agree with the result and much of the analysis contained in the majority opinion. I write separately, however, since I take a different view of the interpretation of the time constraints that 18 U.S.C. section 3653 *322places on the revocation of probation. Scott, of course, argues that the thirteen-month delay between his apprehension and his final probation revocation hearing clearly violated the statutory command that a probationer be taken before the court “as speedily as possible after arrest.” The majority, citing United States v. Curry, 767 F.2d 328, 329 (7th Cir.1985), and United States v. Daly, 839 F.2d 598, 600 (9th Cir.1988), holds that this language of expedition merely requires that the “probationer appear ... immediately before the district court ... so that the process of revocation may commence.” The majority contends that the language does not govern the time within which the revocation hearing must be held. But the government has not argued for this interpretation of the statute and neither Curry nor Daly expressly endorses it. Any weak inference that might be drawn from Daly’s offhand computation of delay from the time of arrest to the time of initial appearance is undermined by Daly’s failure to acknowledge, much less take issue with, the computation of delay from the time of arrest through the time of the revocation hearing in an earlier decision of the same court. See United States v. Wickham, 618 F.2d 1307, 1310 (9th Cir.1979). Moreover, other decisions have suggested that the “as speedily as possible” requirement is intended, at least in part, to protect the probationer’s ability to present a defense. United States v. Companion, 545 F.2d 308, 312 (2d Cir.1976); United States v. Sackinger, 537 F.Supp. 1245, 1248 (W.D.N.Y.1982), aff'd, 704 F.2d 29 (2d Cir.1983). This objective would be served weakly, at best, by a statute that required a probable cause hearing post haste, but tolerated limitless delay in convening the actual hearing. I think such a construction is extremely problematic and I would therefore pursue a different approach.
The significant language of the statute in question states:
As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation....
18 U.S.C. § 3653 (emphasis supplied). This suggests that the injunction to proceed “speedily” applies to the revocation process as a whole. At least there is no suggestion that the initial appearance or an initial probable cause determination should be regarded, for purposes of the expedition requirement, as separable from the “final” revocation hearing. Whatever the discrete steps may be, the government is under an injunction to proceed expeditiously with the whole process.
This is certainly the view taken in United States v. Companion, which provides the most detailed reported analysis of the statute’s timing requirement. There Judge Oakes found little help in the legislative history except the circumstance that the “as speedily as possible” standard was adopted in 1948 to replace the slightly more demanding requirement of “forthwith.” 545 F.2d at 310. After considering various aspects of the problem, the Companion court applied the three critical factors of Barker v. Wingo: “‘the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’” Companion, 545 F.2d at 311 (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)).
In the present case, Scott argues essentially that the thirteen-month delay is so extreme as to automatically invalidate the revocation. He also argues that he was prejudiced by having to live with the unresolved probation violation charges and by being required to spend the period awaiting the hearing in the Metropolitan Correctional Center (the “MCC”) in Chicago instead of in a prison where various programs would have been available to him.
The government was directly responsible for some of the time lost and the rest was attributable to docket congestion in the district court, which is also, ultimately, the burden of the government. I think a thirteen-month delay is much too long and, prima facie, violates the statute. This statutory injunction cannot be treated cavalierly by prosecutors or district courts. But, if the defendant did not assert his rights and suffered no prejudice, even thirteen months *323may not be long enough to invalidate the probation revocation. Scott’s claim that the delay in resolving the charges caused him great anxiety, dubious from the outset given the circumstances of his confinement, is further weakened by his failure to request even once during his thirteen months of confinement at MCC that his hearing be expedited. Moreover, I do not believe that placement in the MCC as opposed to some other prison is grounds for a claim of prejudice. Scott’s time at the MCC counted toward his sentences for other offenses, which he was obliged to serve regardless of his probation status. He had no right to be in one prison in contrast to another. Therefore, while I find the delay here most questionable and the government’s explanations quite unsatisfactory, under the unusual circumstances of this case I would not hold that the delay invalidates the revocation.