UNITED STATES OF AMERICA, PETITIONER V. LARRY LEE TAYLOR

   No. 87-573

   In the Supreme Court of the United States

   October Term, 1987

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Reply Brief for the United States

   1. Respondent acknowledges that if a district court finds a
violation of the 70-day time limit under the Speedy Trial Act, it must
apply a balancing approach to determine whether the circumstances of
the case, considered together, are sufficiently aggravated to warrant
dismissal of the indictment with prejudice.  18 U.S.C. 3162(a)(2).
And respondent does not disagree with our submission (Gov't Br. 26)
and the conclusion by both courts below (Pet. App. 17a, 30a) that the
first of the statutorily specified factors, "the seriousness of the
offense" (18 U.S.C. 3162(a)(2)), weighs against dismissal with
prejudice in this case.  /1/ But respondent does take issue with our
position regarding the other factors that must be taken into account.

   Significantly, respondent does not dispute our submission that if
the other factors we have addressed in our opening brief are included
in the balancing process, they (like the seriousness of the offense)
weigh heavily against dismissal of the indictment with prejudice.
Thus, respondent does not dispute that the 14-day excess found by the
courts below was minimal (Govt't Br. 26-27);  /2/ that he was not
prejudiced by the passage of those 14 days (id. at 27, 29-30);  that
the delay was not attributable to any knowing violation or intentional
misconduct by the government (id. at 27, 32);  and that he was
responsible for precipitating the possibility of a Speedy Trial Act
violation by failing to appear for trial on November 19, 1984, within
the 70-day period (id. at 27-28).  Instead, respondent contends that
those factors may be altogether excluded from the balancing process
under 18 U.S.C. 3162(a)(2).  With those factors put to one side,
respondent then argues that what he terms the "lackadaisical" manner
in which the government returned him to Washington after he was
apprehended in California, considered in isolation, justified
dismissal of the indictment with prejudice.

   The Speedy Trial Act does not permit so narrow an inquiry into a
question of such fundamental importance to the administration of
justice and the protection of society as whether the government will
be forever barred from prosecuting serious charges against the
accused.  Section 3162(a)(2) provides (emphasis added):

         In determining whether to dismiss the case with or without
      prejudice, the court shall consider, among others, each of the
      following factors:  the seriousness of the offense;  the facts
      and circumstances of the case which led to the dismissal;  and
      the impact of a reprosecution on the administration of (the Act)
      and on the administration of justice.

   This provision on its face mandates an inquiry into all the "facts
and circumstances" of the particular case, as well as broader
questions concerning the administration of the Speedy Trial Act and
the criminal justice system as a whole, and any "other()" factors that
reasonably should inform the court's judgment.  All of these factors
must be considered in aid of the ultimate determination whether --
after the considerations weighing against dismissal with prejudice are
offset against those that weigh in favor -- the net circumstances of
the case are so aggravated that dismissal with prejudice is a proper
sanction.  When the various factors in this case are fully considered
in this manner, it is clear that the courts below erred in barring a
reprosecution of respondent.

   2.a. Although respondent agrees that the length of delay is
pertinent in determining whether an indictment should be dismissed
with prejudice because of a violation of the Speedy Trial Clause of
the Sixth Amendment (Resp. Br. 14, citing Barker v. Wingo, 407 U.S.
514, 531-533 (1972)), he argues (Resp. Br. 14-18) that the length of
the delay should play no part in determining whether an indictment
should be dismissed with prejudice where the time limits of the Speedy
Trial Act have been exceeded.  However, because the Speedy Trial Act
was passed in part to protect the defendant's Sixth Amendment right to
a speedy trial (see United States v. Rojas-Contreras, 474 U.S. 231,
238 (1985) (Blackmun, J., concurring), quoting H.R. Rep. 96-390, 96th
Cong., 1st Sess. 3 (1979);  S. Rep. 93-1021, 93d Cong., 2d Sess. 1
(1974)), it should not lightly be presumed that Congress would
altogether exclude from consideration under the Act any of the factors
that are relevant to the Sixth Amendment inquiry.  And an analysis of
the Act demonstrates that Congress did not do so.

   In support of his argument that a court may ignore the length of
the delay, respondent relies on the fact that the Speedy Trial Act,
unlike the Sixth Amendment and this Court's decisions arising under
it, establishes a specific and absolute time limit (subject to
specified exclusions) within which a trial is to be commenced.  Resp.
Br. 16, 17-18.  Respondent, however, misses the significance of the
time limit.  It simply defines when a violation of the Act has
occurred:  whether the 70-day limit has been exceeded by 23 months (as
in United States v. Stayton, 791 F.2d 17, 21-22 (2d Cir. 1986)), by 14
days (as the courts below found in this case), or by even one day, the
Act has been violated and indictment must be dismissed.  18 U.S.C.
3162(a)(2).

   Congress did not, however, inflexibly direct that any such
dismissal must be with prejudice, irrespective of the extent to which
the 70-day limit was exceeded.  Congress directed the court to make a
further and distinct determination of whether the defendant may be
reprosecuted, notwithstanding the fact the 70-day limit was violated.
Moreover, Congress directed the court in making that determination to
consider, inter alia, "the facts and circumstances of the case that
led to the dismissal." 18 U.S.C. 3162(a)(2).  The period of time in
excess of the statutory 70-day limit is of course the most significant
"fact" or "circumstance" that leads to the dismissal of any case under
the Speedy Trial Act.  Section 3162(a)(2) therefore clearly
contemplates that a district court will consider the period of delay,
and it is obvious that the most severe sanction (dismissal with
prejudice, without possibility of reprosecution) should be reserved
for the most egregious violations.  Compare Shepard v. NLRB, 459 U.S.
344, 350 (1983).  For example, although a 23-month overage would weigh
heavily in favor of dismissal with prejudice (see United States v.
Stayton, supra), a one-day overage would tip the scale with equal
force in the opposite direction.  Consistent with this view, the
courts of appeals have uniformly considered the length of the delay in
determining the appropriate remedy for a statutory speedy trial
violation.  /3/ Because the delay in this case was minimal, that
factor plainly weighs against dismissal with prejudice.  /4/

   b. For similar reasons, respondent errs in contending (Br. 6-7)
that his flight from Washington on the day of trial "is simply not
relevant to the present analysis" and is "beside the point."
Respondent relies (Br. 7-8, 20-21) on statutory provisions and
legislative history pertaining to the calculation of excludable delay
due to the transportation of prisoners, removal hearings, and a
defendant's absence from the charging district.  See 18 U.S.C.
3161(h)(1)(G) and (H) and 3161(h)(3)(A).  /5/ But once again, the
statutory provisions and legislative history upon which respondent
relies go to the question of whether the time limits in the Act were
violated;  they do not address the distinct question of remedy.

   There is nothing in the text or legislative history of the Act that
manifests any intention by Congress to exclude from the balancing test
set forth in Section 3162(a)(2) the effect of a defendant's flight.
To the contrary, respondent's flight was one of the "facts and
circumstances of the case that led to the dismissal." 18 U.S.C.
3162(a)(2).  Indeed, it was a "but for" cause of the dismissal:  if
respondent had appeared for trial on the scheduled date within the
70-day period, there would have been no Speedy Trial Act violation.
The fact that respondent was subsequently apprehended in California,
and that the courts below found that the government took somewhat
longer than it might have in returning him to Washington for trial,
does not somehow absolve respondent of his responsibility for
precipitating the occasion for a Speedy Trial Act violation in the
first place.

   Respondent's flight also is made relevant by the remaining factos
listed in 18 U.S.C. 3162(a)(2):  "the impact of a reprosecution on the
administration of (the Act) and on the administration of justice." By
deliberately failing to appear for a trial that was scheduled to
comply with the 70-day time limit under the Speedy Trial Act,
respondent deliberately flouted the Act and one of its underlying
purposes:  to promote the public interest in the prompt disposition of
criminal charges.  Respondent's flight also undermined respect for the
courts, and it interfered with the sound administration of justice by
imposing burdens on the government in rescheduling a separate trial of
respondent's co-defendants, as well as respondent's own trial.  See
Gov't Br. 29-30.  /6/ Permitting a reprosecution of respondent in
these circumstances would have a positive impact on the administration
of the Speedy Trial Act by demonstrating that the intentional
disregarding of its provisions for a tactical advantage will not be
countenanced;  and permitting a reprosecution would have a positive
impact on the administration of justice generally by serving to deter
serious interruptions of the sort perpetrated by respondent.

   More broadly, the sanction provision of the Speedy Trial Act
requires the district court to assess the relative equities in order
to determine whether, on balance, they weigh so strongly in favor of
the defendant that reprosecution should be barred and the defendant
given complete immunity for his crimes.  Here, the period of delay
between respondent's failure to appear for trial and the date on which
he was apprehended (75 days) far exceeded the brief period of
non-excludable delay (14 days at most) that was attributable to the
Marshals Service in returning him to Washington from the place to
which he had fled.  In addition, respondent's flight dramatically
altered the risks for the goevernment, because it deprived the
government of the absolute assurance that there would be no violation
of the Act if the trial was held as scheduled on November 19, 1984,
and instead created a situation in which even the briefest period of
non-excludable delay would lead to dismissal of the indictment.

   c. Contrary to respondent's contention (Br. 9-14), the absence of
any prejudice to him as a result of the brief 14-day period of
non-excludable delay plainly is a relevant factor on the question of
remedy.  Although "prejudice" is not specifically mentioned in Section
3162(a)(2), it is one of the principal considerations to be taken into
account by the district court in assessing the "impact of a
reprosecution . . . on the administration of justice." Certainly, for
example, the administration of justice would be adversely affected if
a defendant's ability to defend against the reinstituted charges has
been impaired by unnecessary delay;  conversely, if the defendant's
ability to defend against the charges is unimpaired, the
administration of justice would not be adversely affected to any
significant extent if he is subject to reprosecution notwithstanding a
relatively brief delay beyond the 70-day limit.  /7/ In fact, the
court of appeals, unlike respondent, recognized the relevance of
prejudice to the defendant, because it acknowledged that "there is no
indication that the delay would have prejudiced (respondent) in
preparing for trial" (Pet. App. 17a).  /8/

   The legislative history discussed in our opening brief (at 19)
clearly manifests Congress's intention that the presence or absence of
prejudice be weighed in the balance.  The legislative history upon
which respondent relies (Br. 11-14) merely reflects the concern of
Representative Cohen that a showing of prejudice to the defendant
should not be an absolute prerequisite in every case to dismissal of
the indictment with prejudice.  See 120 Cong. Rec. 41778, 41794-41795
(1974) (remarks of Rep. Cohen);  id. at 41795 (remarks of Rep.
Conyers).  We do not contend otherwise here.  In some cases, other
considerations, such as a very prolonged period of delay, or
intentional manipulation by the government to obtain a tactical
advantage, might render the circumstances of the case sufficiently
aggravated to justify dismissal with prejudice even in the absence of
identifiable prejudice to the defendant.  No Member of Congress,
however, expressed the view that the presence or absence of prejudice
to the defendant is irrelevant to the determination of the appropriate
dismissal sanction, or that the issue of prejudice should be
altogether ignored by the district court, as respondent urges.

   d. Finally, in contrast to respondent's deliberate disregard of the
Act's provisions, the government's actions were, as respondent
concedes, "not motivated by evil intentions" (Resp. Br. 8).  Where the
violation is inadvertent or unintentional and not motivated by any
desire to delay the trial or to obtain a tactical advantage,
considerations of the administration of the Speedy Trial Act and of
the criminal justice system generally do not weigh in favor of the
severe sanction of dismissal of the indictment with prejudice.  See
United States v. Miranda, 835 F.2d 830, 834-835 (11th Cir. 1988);
United States v. Melguizo, 824 F.2d at 371-372;  United States v.
Simmons, 786 F.2d at 484-485.

   Respondent relies (Br. 3, 5, 7, 18, 22) on what the courts below
characterized as the "lackadaisical" manner in which the Marshals
Service returned respondent to Washington after he was apprehended in
California, following his escape.  However, as Judge Poole explained
in his concurring and dissenting opinion below (Pet. App. 19a-22a),
dismissal with prejudice was an "unduly harsh" (id. at 21a)
overreaction.  For example, the courts below held that there were six
days of non-excludable delay because respondent was not immediately
returned to state custody on February 22, 1984 (id. at 12a, 28a).
However, as we explained in our opening brief (at 24-25), that period
was improperly included, because the Marshal was under no obligation
to return respondent to Washington while state charges were pending.
Moreover, as Judge Poole pointed out, because the state authorities
could have obtained custody of respondent -- and therefore interrupted
federal custody of him -- at any time between February 22 and February
28, "the government cannot be found 'lackadaisical' or irresponsible
in not immediately having taken advantage of these few days of
(respondent's) presence to begin proceedings against him" (Pet. App.
20a-21a (citation omitted)).  And if the Marshal had returned
respondent to state custody on February 22, as respondent insists he
should have, then the time that respondent remained in state custody
until the state charges were dismissed on February 28, 1984 clearly
would have been excluded.  In short, respondent was not adversely
affected by being in federal rather than state custody during that
period.

   The next period of non-excludable delay charged to the government
was the five-day period from March 1, 1984, when the Marshals Service
was notified that the state charges against respondent had been
dismissed, and March 5, 1984, the day before he was brought before a
magistrate to begin removal proceedings.  See Pet. App. 12a-13a & n.9,
28a.  However, as Judge Poole again pointed out (id. at 21a), March 1,
1984 was a Friday, and the record does not show at what time of day
the Marshals Service received notice that the state charges had been
dropped (see E.R. 51);  especially if the notification was received
late in the day, it is understandable that respondent's appearance
would be put over to the week beginning March 4, 1984.  When
respondent was brought before the magistrate on March 6, the attorney
who was temporarily representing respondent requested that the matter
be put over until Friday of that week (March 8, 1984) because Mr.
Loveseth, respondent's regular counsel in the case, was unavailable
(E.R. 75, 80-81).  On March 8, Mr. Loveseth suggested that the
magistrate schedule a removal hearing for a later date (E.R. 85).
Counsel indicated that he did not anticipate that a removal hearing
would actually be necessary, but he stated that he "would rather keep
(respondent) here (in California) and organize what is gonna happen
and talk to (the Assistant United States Attorney) up in Seattle"
(ibid.);  he therefore agreed to a continuance to March 18, 1984 (E.R.
86).  Then, again at counsel's request, the hearing was scheduled for
April 3, 1984 (E.R. 89).  On that date, respondent waived his right to
a hearing, and the magistrate ordered that he be returned to
Washington (E.R. 52).  Especially in light of respondent's willingness
to remain in California for almost a month after he was first brought
before a magistrate there, the brief delay in scheduling that first
appearance, assuming it was unreasonable at all under Fed. R. Crim. P.
40(e), plainly did not warrant dismissal of the indictment with
prejudice.

   The final period of non-excludable delay was the four-day period in
excess of the 10 days that the courts found reasonable under 18 U.S.C.
3161(h)(1)(H) for transporting respondent to Washington after the
magistrate entered the order of removal (Pet. App. 14a, 28a-29a).  But
the government submitted an affidavit explaining that this period was
attributable to the Marshal's assembling of several prisoners for
transportation purposes (E.R. 52-53), "in order to effect economy of
expenses" (Pet. App. 21a-22a) (Poole, J., concurring and dissenting)).
 Even if that period was non-excludable under 18 U.S.C. 3161(h)(1)(H),
it did not substantially undermine the policies of the Speedy Trial
Act.

   e. In sum, none of the 14 days of delay found by the courts below
"was of such studied, deliberate, and callous nature as to justify
dismissal with prejudice" (Pet. App. 22a (Poole, J., concurring and
dissenting)).  Because the other factors in this case weigh heavily
against dismissal with prejudice, the district court clearly erred in
ordering that severe sanction.

   For the foregoing reasons and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   APRIL 1988

   /1/ Respondent was charged with possession of cocaine with intent
to distribute it (in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A))
and conspiring to possess cocaine with intent to distribute (in
violation of 21 U.S.C. 846).  E.R. 1-2.

   /2/ Contrary to respondent's assertion (Br. 30), we merely assume
arguendo -- we do not concede -- that there was actually a violation
of the Speedy Trial Act in this case.  See Gov't Br. 5-6, 23-24 & nn.
4, 13.

   /3/ See, e.g., United States v. Melguizo, 824 F.2d 370, 372 (5th
Cir. 1987), petition for cert. pending, No. 87-551;  United States v.
Stayton, 791 F.2d 17, 21-22 (2d Cir. 1986);  United States v.
Salgado-Hernandez, 790 F.2d 1265, 1268 (5th Cir. 1986), cert. denied,
No. 86-5229 (Nov. 17, 1986);  United States v. Simmons, 786 F.2d 479,
485 (1986), vacated on other grounds, 812 F.2d 818, 819 (2d Cir.
1987);  United States v. Phillips, 775 F.2d 1454, 1455-1456 (11th Cir.
1985);  United States v. Brown, 770 F.2d 241, 244 (1st Cir. 1985),
cert. denied, 474 U.S. 1064 (1986);  United States v. Russo, 741 F.2d
1264, 1267 (11th Cir. 1984);  United States v. Hawthorne, 705 F.2d
258, 260-261 (7th Cir. 1983);  United States v. Carreon, 626 F.2d 528,
533-534 (7th Cir. 1980).

   /4/ The court of appeals, unlike respondent, did not regard the
length of the delay as irrelevant.  It expressed the view that the
14-day delay, "although not wholly insubstantial, was not so great as
to mandate dismissal with prejudice" (Pet. App. 16a-17a).

   /5/ Respondent also relies (Br. 8 n.6) on the fact that Congress
did not adopt a proposal by the Department of Justice that would have
started a new 70-day period following the capture of a defendant who
fled prior to trial, and elected instead to exclude delay caused by
flight from the original 70-day period.  See generally A. Partridge,
Legislative History of Title I of the Speedy Trial Act of 1974, at
118-125 (Fed. Judicial Center 1980).

   /6/ The text and legislative history of the Speedy Trial Act
recognize that the policies of the Act are served by joint trials,
because they promote economy and eliminate duplication in the
disposition of criminal charges, and thereby facilitate the speedy
trial of criminal charges generally.  See 18 U.S.C. 3161(h)(7)
(excluding "(a) reasonable period of delay when the defendant is
joined for trial with a codefendant as to whom the time for trial has
not run and no motion for severance has been granted");  S. Rep.
96-212, 96th Cong., 1st Sess. 24-25 (1979);  Speedy Trial:  Hearings
on S. 895 Before the Subcomm. on Constitutional Rights of the Senate
Comm. on the Judiciary, 92 Cong., 1st Sess. 255, 258 (1971);  United
States v. Tobin, No. 87-5004 (11th Cir. Mar. 23, 1988), slip op.
2146-2147.

   /7/ Respondent correctly points out (Br. 11, 14) that during the
1974 House debates, Representative Dennis asked whether "the phrase,
'the facts and circumstances of the case which led to the dismissal'
(is) broad enough to include the degree of prejudice to the
defendant's ability to prepare his case." 120 Cong. Rec. 41795 (1974).
 In response to this inquiry, Rep. Conyers agreed that it is (ibid.).
In light of this legislative history, respondent argues (Br. 8-9) that
to the extent that prejudice is relevant, it should be included in
this second factor.  In our view, prejudice is more logically
considered as part of the inquiry into the effect of the violation on
the administration of justice.  See 120 Cong. Rec. 41794 (1974)
(remarks of Rep. Cohen).  Ultimately, however, it does not matter
under which rubric the presence or absence of prejudice is considered.
 Indeed, the fact that different Members of Congress regarded the
possibility of prejudice to the defendant as relevant under each
heading -- the facts and circumstances of the case, and the impact on
the administration of justice -- serves to underscore the inescapable
relevance of prejudice in the speedy trial setting.

   /8/ The court of appeals did express the view that respondent was
prejudiced by being incarcerated during the entire period (Pet. App.
17a).  However, as we have explained in our opening brief (at 30), and
as respondent does not dispute, he was in custody during that period
on the bench warrant for failure to appear for trial on November 19,
1984, for which there was no Speedy Trial Act violation.