APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Seitz, Chief Judge, and Van Dusen and Higginbotham, Circuit Judges.
After entering a conditional guilty plea to two counts of a criminal indictment, Mildred Carrasquillo appealed the district court's denial of her motion to dismiss the indictment. See United States v. Zudick, 523 F.2d 848 (3d Cir. 1975). This court has jurisdiction under 28 U.S.C. § 1291 (1976).
On July 23, 1980, Mildred Carrasquillo was arrested, and she made her initial appearance before a magistrate that same day. A grand jury returned an indictment on August 5. Carrasquillo was arraigned on August 21, at which time she entered a plea of not guilty.
In September, Carrasquillo's attorney, Joseph Miller, and the deputy clerk of the district court discussed trial scheduling. Miller indicated that he had two upcoming court appearances; the district court later determined that it was a result of this discussion that trial had not been immediately scheduled. No trial date was set at that time. In fact, this case was not listed for trial prior to October 28, the day Carrasquillo filed a motion to dismiss the indictment, alleging a violation of the Speedy Trial Act of 1974, 18 U.S.C. § 3161(c)(1) (1976 & Supp. III 1979). She argued that her trial should have commenced on or before October 14, 1980, seventy days from the date of her August 5 indictment.
After a hearing, however, the district court ruled that the date of arraignment, August 21, was the relevant date from which to calculate the seventy-day period. The court then determined that the case was outside the limits of the Act by only one day. Because Carrasquillo's attorney had been unavailable during part of the seventy-one days from arraignment to filing of the motion, the court found that there was a basis for at least a one-day exclusion of time in computing the statutory limit. The court therefore denied Carrasquillo's motion to dismiss the indictment, and Carrasquillo entered her conditional plea of guilty and filed an appeal in this court.
We first consider whether the district court erred in calculating the seventy-day period from the date of arraignment. Although the Government concedes that the period should be calculated from the date of indictment, we are not bound by that concession, and we proceed to examine the issue independently. See United States v. Gaskins, 158 U.S. App. D.C. 267, 485 F.2d 1046, 1047 (D.C.Cir.1973) (per curiam).
The relevant statute, 18 U.S.C. § 3161(c)(1), states:
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....
Carrasquillo contends that "the date the defendant has appeared before a judicial officer of the court in which such charge is pending" was July 23, when she made her initial appearance before a magistrate. She therefore argues that the date of her indictment was the "last occurring" date for purposes of calculating the seventy-day period before commencement of trial. The district court determined, however, that the date of Carrasquillo's arraignment was the date of her appearance for purposes of section 3161(c)(1).
If a preindictment initial appearance were not considered to be an "appearance before a judicial officer of the court in which such charge is pending," then the date of an indictment could never be the date that "last occurs" under section 3161(c)(1). Since this would make the choice of dates provided in section 3161(c)(1) superfluous, we believe that Congress must have intended that a preindictment appearance constitutes an "appearance before a judicial officer of the court in which such charge is pending." When such an appearance occurs, the subsequent filing of an information or indictment against the defendant triggers the seventy-day period during which trial must commence. When there is no such appearance because an information or indictment is the first step in a criminal case, then postindictment arraignment will be the relevant "last occurring" date. See Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, As Amended, at 7-8 (Dec. 1979 revision with Aug. 1981 amendments) (hereinafter Judicial Conference's Guidelines ).
We believe that our interpretation is consistent with Congressional intent. Prior to 1979, the Act required that a defendant's arraignment occur within ten days of the filing of an information or indictment, and that trial commence within sixty days of arraignment. The section was amended for the purpose of "(merging) the 10-day indictment-to-arraignment and the 60-day arraignment-to-trial time limits ... into a single 70-day indictment-to-trial period." H.R.Rep.No.390, 96th Cong., 1st Sess. 1, reprinted in (1979) U.S.Code Cong. & Ad.News 805; see S.Rep.No.212, 96th Cong., 1st Sess. 31 (1979). Our interpretation of the Act coincides with the "overall" " "100-day time frame' " envisioned by Congress. See H.R.Rep.No. 390, supra, at 5 (quoting from a General Accounting Office study), (1979) U.S.Code Cong. & Ad.News 809. Under section 3161(b), an information or indictment must be filed within thirty days from the date of arrest or summons, and a "100-day time frame" results if indictment triggers the seventy-day period. See S.Rep.No.212, supra, at 32 (§ 3161(c) "merge(s) the second interval (indictment to trial) into the third interval (arraignment to trial). Thus, instead of 30-10-60 day intervals, the Act would operate on a 30-70 day (arrest to indictment, indictment to trial) basis.").
We hold, therefore, that the district court erred by calculating the statutory seventy-day period from the date of Carrasquillo's postindictment arraignment rather than from the date the indictment was filed.
Dismissal of an indictment is mandatory if the section 3161(c) time limits, as extended by section 3161(h), are not met. See 18 U.S.C. § 3162(a)(2) (1976). Subsection (h) permits certain periods of delay to be excluded when computing the time within which a trial must be commenced. The Government contends that no violation of the Act occurred because there was sufficient excludable time within the eighty-four days from the filing of the indictment to the filing of the motion to dismiss.*fn1
The district court found a sufficient basis for what it believed to be a necessary one-day exclusion because "the engagement of counsel is a valid reason for continuing the case." It determined on the basis of the somewhat conflicting recollections of the deputy clerk and attorney Miller that Miller had indicated his engagement in other trial matters during some of the indictment-to-trial period and that it was for this reason that the case was not earlier listed for trial.
The Government contends that the fourteen excludable days necessary to bring this case within the limits of the Speedy Trial Act may be found in the court's statement that there were "sufficient grounds for granting at least a one-day exclusion, probably a 10-day exclusion." The Government contends that ten trial days would consume fourteen calendar days and that the district court therefore found fourteen excludable days. However, we need not decide whether the district court's suggestion that there were "probably" grounds for a ten-day exclusion constitutes the necessary finding that fourteen ...