text:
    UNITED STATES of America, Plaintiff, v. Joseph DiVARCO, et al., Defendants.
    No. 84 CR 507.
    United States District Court, N.D. Illinois, E.D.
    Feb. 6, 1985.

      Judith Dobkin, John Scully, Sp. Attys., U.S. Dept, of Justice, Chicago, Ill., for plaintiff.
    Elliot Samuels, George P. Lynch, Chicago, Ill., Joseph M. Laraia, Wheaton, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On January 9, 1985 each of Joseph DiVarco (“DiVarco”) and Ronald Ignoffo (“Ignoffo”) was convicted by a jury on all counts in which he was named in the indictment in this case. On January 10 the government moved for the detention of each of them pursuant to the Bail Reform Act of 1984 (the “Act”), 18 U.S.C. § 3143(a) (“Section 3143(a)”), claiming each of them (though not any of their four convicted codefendants) was likely to pose a danger to the safety of other persons or the community if released pursuant to Sections 3142(b) or (c).

This Court immediately conducted a detention hearing (the “Hearing”) on January 10 and 11. At the conclusion of the Hearing as to Ignoffo, this Court found he had not shown by clear and convincing evidence that he was not likely to pose such a danger. Accordingly Ignoffo was ordered detained in accordance with Section 3143(a). DiVarco’s hearing was not concluded because his doctors recommended he be hospitalized. However, given the testimony to this point (implicating DiVarco not only in the gangland-type assassination tied to Ignoffo, see Ex. 1 Finding 1, but also to the botched assassination of Ken Eto, a witness in the trial of this case), this Court ordered DiVarco committed to the custody of the Attorney General for confinement at Bethany Methodist Hospital pending imposition of sentence (subject, of course, to a possibly different resolution if the Hearing were completed before that time).

Both DiVarco and Ignoffo have now moved for release from detention, launching a number of constitutional attacks on Section 3143(a). For the reasons stated in this memorandum opinion and order, their motions are denied.

Changed Standards Under the Act

Two of this Court’s colleagues have recently dealt with the constitutionality of other bail provisions of the Act: Judge Hart in United States v. Hazzard, 598 F.Supp. 1442 (N.D.Ill.1984) (pretrial detention) and Judge Getzendanner in United States v. Cirrincione, 600 F.Supp. 1436 (N.D.Ill.1985) (detention after sentencing and pending appeal, based on the likelihood of reversal on appeal). Though the constitutional considerations in those situations are obviously related to the considerations applicable to the present question, the distinctions among the several situations make neither of the earlier analyses controlling here.

Here we deal with already-convicted but not-yet-sentenced defendants, as to each of whom the decision of detention or release is based on whether he "is not likely to ... pose a danger to the safety of any other person or the community if released” (Section 3143(a)). Just such a likelihood of danger was an established basis for denying bail under former law, 18 U.S.C. § 3148 (repealed by Act § 203(a)):

A person ... who has been convicted of an offense and is either awaiting sentence or sentence review under section 3576 of this title or has filed an appeal or a petition for a writ of certiorari, shall be treated in accordance with the provisions of section 3146 [establishing conditions of release] unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist ... the person may be ordered detained.

Pre-Act law also imposed the burden of establishing the absence of such danger on the convicted defendant — at least one who has already been sentenced. Although early case law under 18 U.S.C. § 3148 had treated its language as continuing to create the historial presumption against detention (United States v. Provenzano, 605 F.2d 85, 94 (3d Cir.1979)), in 1972 Fed.R.App. (“Rule”) 9(c) was adopted expressly (1972 Advisory Committee Notes to that Rule):

to allocate to the defendant the burden of establishing that he will not flee and that he poses no danger to any other person or to the community. The burden is placed upon the defendant in the view that the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal.

See discussion in Provenzano, 605 F.2d at 93-95.

Thus the allocation of proof as to the dangerous post -sentence defendant is clear. But this Court has not located any case, either under prior law or under the Act, dealing with the burden-of-proof question in the post-conviction pre -sentence situation such as DiVarco’s or Ignoffo’s. It would surely seem, however, that Congress might reasonably have viewed the single fact of conviction (as opposed to the precise timing of a detention decision — whether pre-sentence or post-sentence) as determinative, so as to equate the burden of proof in any post-conviction situation to that defined in Rule 9(c) (see the later discussion of this subject). In any event, the Act has now changed the burden on the convicted defendant (both pre-sentence and post-sentence) to one of “clear and convincing evidence.”

Constitutional Considerations

1. Eighth Amendment

At the outset it should be made clear the “right to bail” here — at least in terms of a literal constitutional right — is plainly a misnomer. What the Eighth Amendment says on the subject is simply this:

Excessive bail shall not be required.... In Carlson v. Landon, 342 U.S. 524, 72 5. Ct. 525, 96 L.Ed. 547 (1952) the Supreme Court rejected (albeit in dictum) the notion that because excessive bail cannot be set, the outright denial of bail must a fortiori be foreclosed. Instead the Eighth Amendment was there taken to mean that if an individual is found entitled to bail at all, the right created by that determination cannot be subverted by an unreasonably high bail setting (id. at 545, 72 S.Ct. at 536):

The [Eighth Amendment’s] bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country.

There is room for debate on that score in the pre-conviction context, fueled in part by a dictum in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951) (decided the same term as Carlson) (emphasis in original):

From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 [15 S.Ct. 450, 453, 39 L.Ed. 424] (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

For an extended discussion of the issues in this area, see United States v. Edwards, 430 A.2d 1321, 1325-31 (D.C.1981) (en banc).

But even the Stack dictum addresses the pre -conviction, not post -conviction, defendant. As for the latter category of offender Justice Douglas, scarcely a foe of civil liberties, spoke to the issue in his capacity as Circuit Justice in Carbo v. United States, 82 S.Ct. 662, 666, 7 L.Ed.2d 769 (1962):

If, for example, the safety of the community would be jeopardized, it would be irresponsible judicial action to grant bail.

Accord, Harris v. United States, 404 U.S. 1232, 1235-36, 92 S.Ct. 10, 13-14, 30 L.Ed.2d 25 (1971) (Douglas, J., Circuit Justice); and see Russell v. United States, 402 F.2d 185, 187 (D.C.Cir.1968):

Appellants will remain in custody not because they lack the means to make bail, but for the reason that their release would present danger to the community.

But see Sellers v. United States, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (1968) (Black, J., Circuit Justice) (questioning whether a defendant’s dangerousness can ever justify denial of bail).

This Court therefore rejects, as to convicted defendants DiVarco and Ignoffo, the unconstitutionality of Section 3143(a) on Eighth Amendment grounds. If defendants are to find relief, it must be elsewhere in the Constitution.

2. Due Process Clause

Both DiVarco and Ignoffo advance a potpourri of challenges to the procedure under the Act. None is persuasive, and none calls for more than brief discussion.

Though they call on such pejorative rubrics as vagueness and lack of standards, DiVarco and Ignoffo attack Section 3143 in both procedural and substantive due process terms. It is true the statute does not specifically prescribe the procedures to be followed. But its requirement of a judicial officer’s “find[ing] by clear and convincing evidence” necessarily connotes a hearing, and the clear implication of the statute is that the neighboring provisions of Sections 3142(f) (dealing with hearings for presentence detention) and 3142(g) (specifying the factors to be considered in such hearings, including safety or danger to other persons and the community) apply to Section 3143(a) as well. This Court in fact conducted just such a hearing. In that light the DiVarco-Ignoffo arguments evanesce:

1. Any claim that it is not clear to whom the statute applies is absurd: It is potentially applicable to any convicted defendant, and it is actually applied against any such person about whom the government has information that he or she poses a potential danger to other persons or the community. That triggers the need for a judicial determination of the issue, and hence a hearing.
2. By its very nature, such “danger” can take a number of forms. Nothing requires Congress to substitute the particular for the generic — to give the term more precise content by giving examples or by establishing a laundry list. Certainly DiVarco and Ignoffo, tied by testimony to gangland-type assassinations (and with their potential for retaliation against witnesses here), cannot claim the concept of danger to others or the community is devoid of content in their cases. That would follow a fortiori from such cases as Provenzano, 605 F.2d at 95-96. And as to what constitutes a “sufficient showing” of the likelihood of such danger, that is no different from any other factual determination courts are regularly called upon to make.
3. By imposing the burden of going forward at the Hearing on the government and by according to each defendant and his counsel as much time as they found necessary to deal with the government’s charges, this Court assured both adequate notice of the allegations against the defendants and ample opportunity for a meaningful defense. Edwards, 430 A.2d at 1339-41.
4. Even in full-blown criminal trials, the Sixth Amendment’s Confrontation Clause poses the only constitutional objection to hearsay evidence. And it has always been true of bail hearings, including those resulting in detention, that the rules of evidence do not limit the conduct of the hearing. Hearsay may be considered, with the judge applying his or her experience as a factfinder to decide the extent to which it is to be credited or discredited because of insufficient reliability. In fact the catchall provision of Fed.R.Evid. 803(24) and 804(b)(5) (which some thoughtful academicians and courts have suggested ought to supplant entirely the particularized exceptions to the hearsay rule) permit essentially that result even in the more formal environment of a trial. On this issue generally, see Edwards, 430 A.2d at 1337-38.
5. Burden of proof allocations do not necessarily implicate due process requirements. This opinion has already pointed out that prior law imposed on the defendant the burden of proof (at least in the post-conviction, post-sentencing situation) of negating his or her likely danger to other persons or the community where that was placed in issue. And so long as the issue is one of likelihood of danger, it appears rational for Congress to have equated the convicted felon before sentencing with the same convicted felon after sentencing for the purpose of protecting society against the dangers he or she presents. In turn, that equal need for protection carries with it the rationality of the congressional decision that the burden of proof in the two situations should be exactly the same. Once that determination is made, the use of a “clear and convincing” rather than a preponderance test does not appear to cross the borderline into a due process no-man’s land.

3. Equal Protection Clause

Ignoffo suggests Section 3143’s failure to distinguish between those who plead guilty and those convicted after trial, between those convicted of misdemeanors and those convicted of felonies, and between those convicted of nonviolent and those convicted of violent offenses raises equal protection problems. DiVarco puts related issues in a different way: Section 3143’s presumption against all convicted defendants — regardless of their offenses or backgrounds — bears no rational relationship to legitimate governmental interests of protecting the community (including other persons).

Of course the distinctions between offenders made by Ignoffo cut against rather than for him, except the comparison based on the nonviolent nature of the offenses of which he has been convicted. That fact — that he is on the wrong side of two of the three comparisons — creates standing questions as to his ability to raise such other claims. But even apart from that, what both Ignoffo and DiVarco gloss over is that the occasion for this Court’s present determination is not the offense leading to the conviction but the post-conviction threat to safety posed by the defendant. That is the class Congress has defined — all convicted defendants who represent such a societal threat — and that class bears the most direct imaginable nexus to the remedy: detention pending sentencing. There can be no quarrel with the rationality of that classification for Equal Protection Clause purposes.

4. Effective Assistance of Counsel

DiVarco says detention pending sentencing effectively negates his right to appeal, and both DiVarco and Ignoffo assert Section 3143’s alleged procedural flaws preclude any meaningful defense. Both those arguments are essentially Sixth Amendment right-to-counsel claims, and simply to state them is to disclose their total lack of merit. It is clearly possible for a court to structure the conditions of presentence detention so as to preserve those rights to a defendant.

5. Ex Post Facto Clause

Up to this point DiVarco and Ignoffo have struck out on all the grounds they assert. That leaves for consideration only the ex post facto question — a question that (given Judge Getzendanner’s opinion invalidating a related provision of the Act on that score) bears careful scrutiny.

Because this Court is not called upon to decide the same issues as Judge Getzendanner or Judge Hart, and because orderly jurisprudence dictates the non-decision of constitutional questions until they must be resolved in the crucible of a live controversy (see Ashwander v. TVA, 297 U.S. 288, 346-47, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)), nothing in this opinion should be construed as either subscribing to or disavowing either Cirrincione or Hazzard. But as both the extended analysis in Cirrincione and the shorter treatment in Hazzard reflect, the key to ex post facto vulnerability vel non in this case is whether, in the words of the most recent Supreme Court pronouncement on the clause, Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981), a defendant’s punishment has been increased by the new law:

The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.

It is true Weaver, id. at 29, 101 S.Ct. at 964 also speaks in terms of the challenged law “disadvantagpng] the offender affected by it.” But that characterization alone is oversimplistic, for the Supreme Court itself has consistently taught not every “disadvantage” is vulnerable under the Clause, and the core inquiry remains the retroactive increase in punishment. As DeVeau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960) put it:

The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation____

Just last Term the Supreme Court held pretrial detention to protect society from the potential consequences of predictable criminal acts was not punishment. Schall v. Martin, 104 S.Ct. at 2412-13 (1984). Though that decision was rendered in the context of juveniles (with their special rights and disabilities), the same punishment v. non-punishment analysis was announced as to adult pretrial detainees five years earlier in Bell v. Wolfish, 441 U.S. 520, 535, 537, 538, 99 S.Ct. 1861, 1871, 1873, 1874, 60 L.Ed.2d 447 (1979) (citations omitted):

In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.
* * * * * *
Not every disability imposed during pretrial detention amounts to “punishment” in the constitutional sense, however. Once the Government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. Traditionally, this has meant confinement in a facility which, no matter how modern or how antiquated, results in restricting the movement of a detainee in a manner in which he would not be restricted if he simply were free to walk the streets pending trial. Whether it be called a jail, a prison, or a custodial center, the purpose of the facility is to detain. Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility. And the fact that such detention interferes with the detainee’s understandable desire to live as comfortably as possible and with as little restraint as possible during confinement does not convert the conditions or restrictions of detention into “punishment.”
This Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may.
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A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose____ Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].”

What is at work under Section 3143 is not punishment for past conduct but the protection of society generally, and its individual members particularly, from reasonably predictable future conduct. Schall, 104 S.Ct. at 2417-18 (citations omitted) said:

Our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically rejected the contention, based on the same sort of sociological data relied upon by appellees and the district court, “that it is impossible to predict future behavior and that the question is so vague as to be meaningless.”

That calls into play the concept our Court of Appeals applied to the Ex Post Facto Clause (albeit in a different context from the present one) in United States v. Sutton, 521 F.2d 1385, 1390-91 (7th Cir.1975) (quoting United States v. Karnes, 437 F.2d 284, 289-90 (9th Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971)):

It is well established “that where Congress has rationally concluded that persons who have demonstrated a tendency in the past to engage in conduct that Congress has the power to proscribe, Congress may restrict such future activities without violating the Ex Post Facto prohibition.”

Again the result here is foreordained by the like conclusions as to pretrial detention. In the pretrial situation the mere probable cause to believe commission of a crime, coupled with a perceived threat of the defendant to the safety of others, has rendered the detention order something other than “punishment.” Absent punishment there is no ex post facto problem. Here, by comparison, a jury has already found beyond a reasonable doubt that DiVarco and Ignoffo have committed crimes. Surely society cannot be less entitled to protect itself and its members against what this Court has found the likelihood of real dangers — dangers that would be posed by the continued enlargement of convicted defendants Ignoffo and DiVarco pending their sentencing.

Conclusion

Section 3143 is not vulnerable to constitutional onslaught, either on its face or as applied to DiVarco and Ignoffo. Both their motions for release on bail pending sentencing are denied.

Exhibit 1

Reprinted at 602 F.Supp. 1027

Exhibit 2

UNITED STATES OF AMERICA, Plaintiff, v. JOSEPH DiVARCO, et al., Defendants.

No. 84 CR 507

DETENTION ORDER

On January 9,1985 following a jury trial, Joseph DiVarco (“DiVarco”) was convicted on all counts in the indictment in which he was named in this case. On January 10 the government moved for DiVarco’s detention pursuant to 18 U.S.C. § 3143(a). This Court immediately commenced a detention hearing (see 18 U.S.C. § [3142](f)), found that the government had presented credible evidence that established prima facie (though this Court has not at this time definitively found) that DiVarco was likely to pose a danger to the safety of other persons or the community if released pursuant to 18 U.S.C. §§ 3142(b) or (c) and that DiVarco had not yet established by clear and convincing evidence that he was not likely to pose such danger, and therefore ordered DiVarco detained pending completion of the hearing. Such completion of the hearing was not feasible at that time, in part because DiVarco’s counsel advised that DiVarco’s doctors had directed his hospitalization to avoid the possibility of his contracting pneumonia.

In accordance with 18 U.S.C. § 3143(a) this Court hereby orders that DiVarco be committed to the custody of the Attorney General for confinement at Bethany Methodist Hospital pending imposition of sentence, upon the following conditions:

1. DiVarco shall be allowed monitored visits from his immediate family (his wife, their children and their children’s spouses). All such visits are to be prearranged through the United States Marshal’s Service.
2. DiVarco’s attorneys (George Lynch, Joseph Laraia and Jacqueline Walther) and his doctors shall have unlimited, unmonitored access to him.
3. United States Probation Officer Rhoda Michaels shall have unmonitored access to DiVarco by prearranged appointment.
4. DiVarco shall be provided telephone access to his immediate family (see Paragraph 1) if such access can be secured through the United States Marshal’s Service. Such access shall not include a direct dial telephone.
5. No access shall be provided the United States Marshal’s Service to DiVarco’s medical records, nor shall any Marshal discuss DiVarco’s medical condition with hospital personnel.

/s/ Milton I. Shadur

Milton I. Shadur

United States District Judge

Date: January 11, 1985

      . All other citations to Title 18 (as amended by the Act) will also simply take the form “Section —.” Citations to the Act's internal numbering will take the form "Act § — .”

      . Exhibit 1 to this memorandum opinion and order is this Court’s order of detention as to Ignoffo.

      . At that time DiVarco’s doctors considered him an imminent pneumonia risk, in addition to his having an irregular heartbeat pattern and other problems. After his hospitalization they recommended installation of a pacemaker, which has since been done. DiVarco is now recuperating from that operation and should be capable of discharge from the hospital shortly, though a later hearing on that subject has disclosed further complications in his physical condition.

      . Exhibit 2 to this memorandum opinion and order is this Court’s order of detention as to DiVarco.

      . Thus the shift from old 18 U.S.C. § 3148 and Rule 9(c) to Section 3143(a) involves two changes:
      1. from "the judge has reason to believe that no ... conditions of release will reasonably assure that the person will not ... pose a danger____” to "the judicial officer finds ... that the person is not likely to ... pose a danger____and
      2. from "the burden of establishing ... rests with the defendant" to "the judicial officer finds by clear and convincing evidence____”
      It is always difficult to convert the semantics of such differently stated standards into a quantified comparison. Here the "reason to believe” test in the first pairing might arguably be viewed as harder for a defendant to overcome than its "finds not likely" counterpart. Conversely "clear and convincing” is plainly a more difficult burden for the defendant than a mere preponderance. Thus (with factors that might be perceived as pointing in different directions) the overall effect of the changes is not as obvious as it might seem at first blush. For purposes of this opinion, however, it will be assumed a defendant is worse off under the Act than under the old law.

      . All the detention provisions of the Act have been drawn from the corresponding provisions of the District of Columbia Code (Sections 23-1321 to 23-1327), where they have been in effect since enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970. Section 3143(a) is a counterpart of D.C. Code § 23-1325(b). In United States v. Edwards, 430 A.2d 1321 (D.C.1981) (en banc) the District of Columbia Court of Appeals dealt with the constitutionality of various of those provisions in an extended opinion (with some dissents on different issues).

      . There are cases that express some doubt on this score; see, e.g., Hunt v. Roth, 648 F.2d 1148, 1158-62 (8th Cir.1981). But they do so on the theory that a wholly arbitrary denial of bail is the functional equivalent of "excessive bail,” thus violating the Eighth Amendment. Even on that view, Congress’ decision that a defendant’s danger to society should foreclose his release can hardly be viewed as establishing a wholly arbitrary classification. Thus the conclusion reached in the text would not be altered by a different perception of the Eighth Amendment.

      . True enough, just last year the Supreme Court said in Schall v. Martin, _ U.S. _, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984):
      In Bell v. Wolfish, 441 U.S. [520], at 534 n. 15, 99 S.Ct. [1861], at 1871 n. 15 [60 L.Ed.2d 447 (1979)], we left open the question whether any governmental objective other than ensuring a detainee’s presence at trial may constitutionally justify pretrial detention.
      But Schall itself upheld in due process terms (at least as to juveniles) a system of pretrial detention predicated on "the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct____” When the detained person has already been tried and found guilty of another crime (as have DiVarco and Ignoffo), the powerful consideration of the presumption of innocence (which undergirds all our concerns about pretrial detention, viewed as punishment, see Stack, 342 U.S. at 4, 72 S.Ct. at 3) loses its force. It would be a mistake to carry over to the present situation, in undiluted form, the troubled judicial soul-searching about pretrial detention — a soul-searching that has expressed itself in a continuing due process dialogue (contrast, for example, the majority and dissenting opinions in both Schall and Bell).

      . Among other things, Section 3143(a) says a finding of no danger results in a release order under Section 3142(b) or (c). Section 3142(f) provides for the "detention hearing” to see which if any conditions under one of those very sections — Section 3142(c) — should apply. Section 3142(g) speaks of the factors to be considered at such a hearing. That statutory structure of course creates a common-sense link between the Section 3143(a) requirement of a finding, on the one hand, and the Section 3142(f) hearing procedures and the Section 3142(g) factors, on the other.

      . Candor compels the disclosure that this Court has found no case law (nor have the parties cited any) on this subject.

      . This distinction is touched on more fully in the ex post facto discussion later in this opinion.

      . That rational distinction also demolishes DiVarco’s suggestion of discriminatory enforcement based on the government’s having sought detention of DiVarco and Ignoffo but not of their four codefendants (as to whom the government said it had no information indicating danger to other persons or to the community).

      . Other facets of Ex Post Facto Clause coverage, such as its prohibition of (1) retrospective changes in conduct giving rise to criminal penalties and (2) the elimination of defenses available when the crime was committed, are plainly not in issue here.

      . Schall and a number of the other cases discussed in the text discuss the concept of "punishment” for due process (rather than ex post facto) purposes. Because there seems no logical reason the "punishment” concept should be given any different content in construing the two constitutional provisions, this Court has felt free to draw on the due process cases in this Ex Post Facto Clause discussion.

      . This does not of course imply an ultimate finding as to DiVarco. Because the statute places the burden on him, and because the evidence during the Hearing to this point demonstrates a real probability of his posing a danger to the safety of others, his release pending completion of the Hearing would be improper.

      . After this opinion was completed (and indeed signed and ready for issuance), this Court learned of the very recent decisions by three Courts of Appeal reaching a result opposite to that of Judge Getzendanner’s Cirrincione opinion in the post-appeal situation covered by Section 3143(b). United States v. Miller, 753 F.2d 19 (3d Cir.1985); United States v. Powell and other consolidated cases (8th Cir.) (order issued; opinion to follow); United States v. Affleck, No. 84-2630 (10th Cir.) (same). In addition, on January 26 our own Court of Appeals entered an unpublished order (non-citeable and non-precedential under Circuit Rule 35) affirming Judge Kanne’s decision rejecting ex post facto attack in United States v. Molte, HCR 83-36-33 (N.D.Ind. Jan. 9, 1985). In accordance with the Ashwander principles referred to earlier in the text, this Court of course continues to express no opinion on the substantive issue posed by those cases. It has however obtained a copy of the one available opinion — Miller—to determine how if at all that opinion may be useful here. As to that:
      1. Miller,, at 21 gives very short shrift to the ex post facto issue, simply declaring the “availability vel non of bail pending appeal, albeit extremely important to the individual involved, is a procedural issue rather than a type of punishment to which the Ex Post Facto Clauses apply-” . ...
      2. None of the other constitutional issues raised by DiVarco or Ignoffo here was discussed in Miller.

      Suffice it to say that (not surprisingly, given the Court of Appeals' ruling) nothing in Miller points to a different result in this case. Nor does it appear any more likely that any of the other cases cited in this footnote would do so.


source: Caselaw Access Project

author: HUYETT, District Judge.

license: Public Domain

text:
    Chandler W. SYKES, Jr. v. PATRAI SHIPPING CORPORATION.
    Civ. A. No. 79-4068.
    United States District Court, E.D. Pennsylvania.
    Jan. 14, 1985.
    John T. Biezup, Philadelphia, Pa., for plaintiff.
    Louis S. Fine, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

This action arises out of a claim for damages by a longshoreman, Chandler W. Sykes, against shipowner, Patrai Shipping Corporation, for injuries sustained by plaintiff aboard defendant’s “M/V Patrai” as a result of the alleged negligence of the defendant. Sykes alleges that he was injured on October 19, 1979, while climbing down a ladder from which a rung was missing, and as a result he is now permanently disabled.

Presently pending before me is defendant Patrai’s motion for partial summary judgment. Federal Rule of Civil Procedure 56(c) states that summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. To prevail on a motion for summary judgment, the moving party must establish the absence of a genuine issue of material fact; all reasonable doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Defendant Patrai contends that plaintiff is collaterally estopped from offering evidence of past or continuing disability after October 2,1981. On October 2,1981, plaintiff returned to work at the Amstar Pier; on November 13, 1981, while lifting a tank from his bulldozer, plaintiff experienced severe back pain. Plaintiff ceased working after this incident and began to collect worker’s compensation. For nearly two years, plaintiff continued to receive worker’s compensation on the basis of his “temporary total” disability. On August 5, 1983, plaintiff’s counsel received two forms from the U.S. Department of Labor. The first, form LS-206, was a notice of final payment or suspension of payments and compensation which stated that plaintiff’s payments were being suspended because his disability status as of November 10, 1982 was “temporary partial” as opposed to “temporary total;” therefore, plaintiff had received an overpayment of compensation benefits and suspension was necessary until the overpayment was recouped. (Defendant’s exhibit “P”) The second form plaintiff’s counsel received on August 5, 1983, form LS-208, stated that plaintiff’s disability had been reclassified from “temporary total” to “temporary partial.”

An informal conference was held on October 5, 1983 before a representative of the Department of Labor, at which both parties to this action appeared and at which two issues were addressed: the extent of plaintiff’s disability and whether the November 13, 1981 incident constituted a “new” injury or an aggravation of an “old” injury. The resulting memorandum issued by the Department of Labor dated October 12, 1983 recommended that the November 13, 1981 injury be considered a new one and that plaintiff continue to receive “temporary partial disability compensation.”

Defendant contends that this memorandum, filed by the Department of Labor on October 12, 1983 following the informal conference held on October 5, 1983, constituted rulings by the hearing examiner that collaterally estop plaintiff from relitigating the issues decided at the compensation hearing. Defendant also contends that plaintiff has failed to exhaust the administrative process: “in the case at bar, Sykes has ignored the administrative appellate process and seeks an ‘end-run’ decision in his favor in the Court, contrary to the requirements of the Act.” (Defendant’s Brief p. 6.)

Plaintiff, on the other hand, contends that no formal findings were made by the Department of Labor; that the informal conference held on October 5, 1983 was just that, an informal conference, not a formal hearing; and that the memorandum of informal conference was not an agreed upon settlement, award or decision but rather simply a recommendation. Only an Administrative Law Judge, plaintiff states, can conduct a formal hearing and enter awards and orders.

Title 20 of the Code of Federal Regulations, Chapter VI, governs administration of the Longshoremen’s and Harbor Workers’ Compensation Act. If the employer does not contest liability when a longshoreman files a claim under the Act, payments begin promptly without any administrative process other than the filing of papers. This appears to be what occurred in this case; there were no administrative proceedings prior to October 5, 1983 and plaintiff received payments from his employer, Amstar, from November 1981 until October 1983 when the payments were reduced to reflect temporary partial disability as opposed to temporary total.

When an employer contests a compensation claim or an employee contests actions taken by the employer in connection with his claim, informal procedures are employed by the Department of Labor to try to resolve the dispute before any formal proceedings are instituted. 20 C.F.R. § 702.261 states in pertinent part:

Where the claimant contests an action by an employer or carrier reducing, suspending, or terminating benefits, including medical care, he should immediately notify the office of the deputy commissioner having jurisdiction, in person or in writing, and set forth the facts pertinent to his complaint.

In turn, the Deputy Commissioner sets in motion an informal process to resolve the conflict. Section 702.311 of Title 20 of the Code of Federal Regulation states in pertinent part:

The deputy commissioner is empowered to resolve disputes with respect to claims in a manner designed to protect the rights of the parties and also to resolve such disputes at the earliest practicable date. This will generally be accomplished by informal discussions by telephone or by conferences ...

The deputy commissioner or his designee essentially acts as moderator during an informal conference: he “guide[s] the discussion toward the achievement of the purpose of such conference, recommending courses of action where there are disputed issues, and giving the parties the benefit of his experience and specialized knowledge in the field of workmen’s compensation.” 20 C.F.R. § 702.314.

The October 5, 1983 conference was an informal conference of the type provided for in these regulations. The emphasis was on achieving an expeditious, amicable settlement of the claims raised. At the October 5, 1983 informal conference, the issues were the extent of plaintiff’s disability and whether his injury was old or new.

If an agreement is reached by the parties at an informal conference, the Deputy Commissioner simply drafts a memorandum reflecting the agreement reached. If the parties are unable to reach an agreement, the Deputy Commissioner will issue a memorandum reflecting his recommendation as to all outstanding issues. The October 12, 1984 memorandum seems to be of the latter type. (Defendant’s exhibit “R”). The claims examiner, the Deputy Commissioner’s designee, recommended that temporary partial disability compensation continue for the new injury. Amstar, plaintiff’s employer, had consistently maintained that the injury plaintiff sustained in November, 1981 was a new injury and not a renewal of the October 1979 injury. The Claims Examiner apparently accepted this view. Plaintiff’s attorney contested this position and on October 14, 1983 asked for another informal conference; a second conference was held on November 17, 1983.

In the memorandum issued after the second conference, the Deputy Commissioner noted that: “After a lengthy discussion the parties were unable to reach agreement. They requested and were granted an additional three weeks for discussion. The parties will advise this office of the results of their discussions and may request a recommendation if discussions break down.” Plaintiff’s claim was for temporary total disability for 10-19-79 to 11-80 and compensation for permanent total disability from 12-80 to date. No further proceedings, agreements, or communications with the Department of Labor are documented.

After an informal conference and recommendation, a party may seek a formal hearing. Plaintiff claims that it has no obligation to do so or to “exhaust his administrative remedies” and moreover, he has not filed for a formal hearing pending the outcome of this case. Plaintiff further contends that the recommendation made after an informal conference is not equivalent to a formal finding. In Costa v. Danais Shipping Co., 714 F.2d 1 (3d Cir.1983), the court held that a memorandum of informal conference is not an “award in a compensation order” as required by the Act to assign the plaintiffs cause of action against third parties to his employer. Under the Act, a longshoreman must file an action against a third party within six months after an award in a compensation order is filed or else he forfeits (or automatically assigns) his cause of action against the third party to his employer. Relying on Pallas Shipping Agency Ltd. v. Duris, 461 U.S. 529, 103 S.Ct. 1991, 76 L.Ed.2d 120 (1983) in which the court held that acceptance of compensation payments voluntarily made by the employer did not commence the running of the six month limitation period, the Costa court held that the memorandum of informal conference is not an order or award and is not administratively reviewable. Although a claim can proceed from the informal conference to a formal hearing, the purpose of the formal hearing is not to review the informal conference; the formal hearing merely affords a claimant the opportunity to present evidence on a claim and obtain a decision from an ALJ.

Although this case presents an issue other than the statute of limitations under the Act, the core question, whether the recommendation made from an informal conference is an award or order, is exactly the same. The Pallas court emphasized the importance of the formal order in the statutory scheme and the necessity for removing uncertainty in practice. These policy considerations exist as well in this case. The Act provides a procedure by which disputes between employees and employers are to be resolved. Initially, this procedure is to be flexible with the Department of Labor’s role limited to mediation. The goal is expeditious resolution of conflicts. In this case, the final administrative step to date was the informal conference. Under the Costas analysis, the recommendation made on October 12, 1983 was not an order or award which would be binding on plaintiff and preclude him from relitigating the issue of new injury versus old injury. Moreover, the Costa court specifically held that a memorandum of informal conference is not administratively reviewable. Therefore, defendant’s related collateral estoppel and administrative exhaustion arguments must both be rejected.

Defendant cites several cases in support of its contention that plaintiff is collaterally estopped from relitigating the issue of new injury versus old and therefore from presenting evidence of past or continuing disability after October 2, 1981. See Atlantic & Gulf Stevedores, Inc. v. Director OWCP, 542 F.2d 602 (3d Cir.1976); James v. Jadranska Slobodna Plovidba, 1982 AMC 2176 (N.D.Ill.1980), aff'd. (7th Cir.1981) (unpublished order). In each of these cases, however, the court held that the plaintiff was collaterally estopped from re-litigating an issue which an Administrative Law Judge had decided at plaintiff’s compensation hearing. No hearing was held before an AU in this case and final finding or formal order or award was issued; only an informal recommendation was made.

Defendant contends that this informal recommendation had the legal effect of reducing plaintiff’s compensation payments and reducing the degree of his disability, but defendant misinterprets the nature of the process. Plaintiff’s employer, Amstar, had decided to reduce plaintiff’s benefits and to change his classification and so notified plaintiff through the Department of Labor and the forms plaintiffs counsel received on August 5, 1983; it was after this notification that an informal conference to discuss plaintiffs disputed status was held.' As a result of the conference, the reductions were put into effect because the parties could not reach an alternative agreement; the examiner’s recommendation had no binding effect. Again, defendant’s arguments must fail.

An appropriate order follows.

ORDER

NOW, January 14, 1985, upon consideration of defendant’s motion for partial summary judgment, plaintiff’s response thereto, the memoranda of law submitted by the parties and for the reasons stated in the accompanying memorandum, IT IS ORDERED that defendant’s motion for partial summary judgment IS DENIED.

      . In response to defendant’s motion, plaintiff consistently contends that documents from the U.S. Department of Labor pertaining to worker’s compensation may not be used in a third party action as evidence and that compensation matters are not admissible in this case. I do not believe that it is necessary for me to address this issue at this time because I deny defendant’s motion for partial summary judgment on other grounds.


text:
    UNITED STATES of America v. John D. JONES a/k/a Jack Jones.
    Crim. A. No. 82-366-1.
    United States District Court, E.D. Pennsylvania.
    Jan. 17, 1985.

      JoAnne A. Epps. Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
    Stanford Shmukler, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

Defendant John D. Jones seeks dismissal with prejudice of the indictment against him in this action on the grounds that the Speedy Trial Act, 18 U.S.C. § 3161 et seq., has been violated. The government does not oppose the defendant’s motion to dismiss, but requests that the indictment be dismissed without prejudice. After a careful review of the circumstances of this case, I conclude that the indictment should be dismissed with prejudice.

Defendant was indicted on November 9, 1982 on two counts of sale of goods stolen from interstate commerce, three counts of receipt of motor vehicles stolen from interstate commerce, and three counts of mail fraud. On December 22,1982,1 entered an order disqualifying defendant’s counsel, Wallace C. Worth, Jr., because Mr. Worth had previously represented a key government witness. Defendant filed an appeal from that order in the Court of Appeals for the Third Circuit on December 30, 1982. On November 30, 1983, the Court of Appeals entered a Judgment Order affirming my order of disqualification. Defendant then filed a petition for writ of certiorari in the Supreme Court. The Court denied defendant’s petition on February 28, 1984.

The Clerk of the Court of Appeals for the Third Circuit sent a letter to the Clerk of the District Court, Michael E. Kunz, dated March 1, 1984 enclosing a certified copy of its reissued Judgment Order. (Affidavit of Sally Mvros, U.S. Court of Appeals for the Third Circuit). The reissued Judgment Order was filed by the Clerk of the District Court and docketed March 2, 1984 as “Cert, copy of Judgment order of USCA affirming judgment of district court, filed.” Both Stanford Shmukler, counsel for defendant, and JoAnne Epps, the Assistant United States Attorney assigned to this case, were sent copies of the March 1, 1984 letter. Sally Mvros, Clerk, Third Circuit, certified under oath that she. sent copies of the letter to counsel for both parties and the copies of the letters were never returned to her office as undelivered. At the hearing on October 23, 1984, Mr. Schmukler acknowledged receipt of this letter and presented the copy he had received. Both by affidavit and at the October 23 hearing, Ms. Epps stated that she never received a copy of the Third Circuit’s March 1, 1984 letter, By affidavit, Walter S. Batty, Jr., the Chief of Appeals for the United States Attorney’s Office, stated that he does not recall seeing the March 1, 1984 letter pertaining to this criminal action, and that it is his responsibility to review all correspondence from the Third Circuit Court of Appeals received by the Office of the United States Attorney.

Ms. Epps stated in her affidavit that the United States Attorney’s Office receives the Criminal Law Reporter, but it is not her policy to review it to determine the status of her pending cases and it is not the responsibility of anyone else in the United States Attorney’s Office to review the Criminal Law Reporter on behalf of the attorneys in the United States Attorney’s Office. Ms. Epps further stated that United States Attorney’s Office maintains no log of incoming mail.

Ms. Epps stated that it was not until approximately August 1, 1984 when she telephoned the Clerk for the Supreme Court that the government learned that certiorari had been denied on February 28, 1984 and that the action had been returned to the Third Circuit. At this time, Ms. Epps called my chambers; this was the first time that I had been made aware of the status of the case. Therefore, on August 8, 1984,1 entered an order setting the trial date for September 17, 1984. Defendant now contends that the Speedy Trial Act has been violated and the indictment should be dismissed with prejudice.

Under the Speedy Trial Act, a trial following an appeal should begin within seventy days from the date the action occasioning the retrial becomes final. 18 U.S.C. § 3161(e). Both parties agree that the seventy-day period has been exceeded. The Third Circuit’s mandate was reissued on March 1; the seventy-day period ended on or about May 11, 1984, well before the date the government or I became aware of the status of this criminal action. The only question is whether the indictment should be dismissed with or without prejudice. Section 3162 of the Speedy Trial Act provides that:

(2) If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion but the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3). 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 this chapter and on the administration of justice. Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.

18 U.S.C. § 3162(a)(2) (emphasis added). Section 3161(e) states “[t]he sanctions of section 3162 apply to this subsection.” The government contends that each of the three factors listed warrant dismissal without prejudice. The government asserts that the case is a serious one; defendant is charged with receiving stolen property, selling stolen goods, and participating in a mail fraud scheme. The government further contends that the circumstances which necessitate dismissal of the indictment support a dismissal without prejudice. The government states that neither the United States Attorney’s Office nor my chambers received notice of the Third Circuit’s Judgment Order until August 1, 1984; in the interim, the government notes, defendant failed to take any action to ensure a speedy trial. The delay that resulted, the government claims, is not the sort of delay the Speedy Trial Act was designed to redress. Finally, the government argues that a dismissal without prejudice in this case will not thwart the purpose of the Speedy Trial Act because the defendant has suffered no prejudice and the delay was not the fault of the United States Attorney’s Office or of the court.

Defendant, on the other hand, contends that this is the sort of case for which dismissal with prejudice is appropriate. The crime charged is not so serious, defendant contends, that the state prosecution would not serve the public interest. Defendant further argues that because the defendant did not contribute to the delay in any way and is prejudiced by it, the Speedy Trial Act requires that the indictment be dismissed with prejudice. Finally, defendant contends that a prosecution at this time would not only prejudice the defendant but also undermine the overall intent of the Act which was designed to protect society’s interest in the prompt disposition of criminal cases.

In support of his position, defendant relies on two recent cases in which the courts dismissed the indictments with prejudice. In United States v. Angelini, 553 F.Supp. 367, 370 (D.Mass.1982), the court, examining the three factors suggested by § 3162(a)(2), held that dismissal with prejudice was appropriate. Similarly, in United States v. Caparella, 716 F.2d 976 (2d Cir.1983), the court dismissed with prejudice the indictment against defendant for mail fraud. Considering the legislative history of the 1979 amendments to the Act, the court in Angelini held that a presumption exists in favor of dismissing an indictment with prejudice. Any other position, the court concluded, would make the Act self-contradictory because a defendant would be more prejudiced by the time delay created by a dismissal without prejudice than by no dismissal at all. Angelini, 553 F.Supp. at 370. Disagreeing with the court on Angelini, the court in Caparella found no presumption in favor of dismissal with prejudice; nevertheless, the Caparella court noted the legislative history of § 3161 et seq. which states in part “ ‘the committee intends and expects that use of dismissal without prejudice will be the exception and not the rule.’ ” Caparella, 716 F.2d at 979, quoting H.R.Rep. No. 390, 96th Cong., 1st Sess. 8-9 (reprinted in 1979 U.S. Code Cong. & Ad.News 805, 812-13). See also United States v. Iaquinta, 515 F.Supp. 708, 712 (N.D.W.V.1981), rev’d on other grounds, 674 F.2d 260 (4th Cir.1982) (legislative history suggests that dismissal without prejudice should be granted only in rare instances, and the rule will be dismissal with prejudice.).

At the October 23, 1984 hearing, counsel for the government conceded the existence of a presumption of dismissal with prejudice, but argued that there will be cases when dismissal without prejudice is appropriate and this is such a case. Whether or not there is a presumption in favor of dismissal with prejudice, application of the statutory criteria set forth in § 3162 to the facts in this case inevitably leads to the conclusion that dismissal with prejudice is warranted.

I shall examine each of the three factors for determining the issue of prejudice. The first factor is the seriousness of the offenses with which defendant is charged. See 18 U.S.C. § 3162(a)(2); United States v. Carrasquillo, 667 F.2d 382, 390 (3d Cir.1981). Defendant does not deny that the federal charges against him are serious, but he contends that his offenses are covered by state charges. In December, 1983, defendant was convicted in Lehigh County of 25 of 26 felony counts of receiving stolen property and related charges; the state prosecution was the result of a joint investigation by the Pennsylvania State Police and the Federal Bureau of Investigation. Both the state and federal indictments were handed down in November 1982 and roughly covered the period between July, 1979 and June, 1982.

Counts 3 and 4 of the federal indictment pertain to the same tractor and essentially the same charge, receipt of stolen property, as count 1 of the state charges. Count 5 charges defendant with removing a Cumins diesel engine, causing its serial number to be eradicated, and placing the engine into another vehicle; the same engine was the subject of state counts 16, 17, 18, and 19 in which defendant Jones was charged with removal or falsification of I.D. numbers and dealing with a vehicle with removed or falsified numbers. Although none of the state charges against Jones pertain to the Cumins engine or the Freightliner tractor specified in counts 1 and 2, defendant suggests that the Cummins engine may have been a component of one of the tractors which was a subject of the state charges. More importantly, the dates of the offenses charged in counts 1 and 2 coincide with the time period the state charges cover. Counts six through eight of the federal indictment which charge defendant with mail fraud were not part of the state prosecution. I note that violence was not an element of any of the charges against defendant. With these facts in mind, particularly the overlap both on some of the substantive charges and the time period the federal and state counts covered, I conclude that just as in Angelini, 553 F.Supp. 367, the seriousness of defendant’s alleged conduct is a neutral factor on the issue of dismissal with or without prejudice.

With respect to the second factor, the facts and circumstances leading to dismissal, the record establishes that dismissal with prejudice is warranted. The Speedy Trial clock ran on or about May 11, 1984, 70 days after the Third Circuit’s mandate was issued; no trial was held during this period, and dismissal of the indictment is therefore mandatory. The circumstances leading to dismissal, however, were not the fault of the defendant. Rather this appears to be exactly the sort of case of administrative negligence which the Speedy Trial Act was intended to redress. It may well be that the March 1, 1984 mandate letter from the Third Circuit never reached the Office of the United States Attorney, but the burden of this type of administrative snafu should rest on the government and not on the defendant.

At the October 23, 1984 hearing, counsel for the government conceded that the burden of the mix-up and resulting delay should not be borne by defendant Jones, but emphasized that Jones has not been prejudiced by it. Defense counsel argued that prejudice to the defendant is not one of the criteria set forth in 18 U.S.C. § 3162(a)(2). I believe, however, that prejudice is an element which may be considered in determining the effect of further prosecution on the administration of justice, but I emphasize that it is only one element which may be weighed along with others. Caparella, 716 F.2d at 980; United States v. Bittle, 699 F.2d 1201, 1208 (D.C.Cir.1983) (Prejudice to the defendant is one of the factors the district court may consider). Although defense counsel, in his affidavit, stated that he has been unable to determine yet whether any of defendant’s anticipated witnesses have become unavailable, it is not at all clear that defendant has not been prejudiced. The federal indictment against defendant Jones is over two years old. When the potential for prejudice to the defendant is weighed along with the administrative muddle which occurred, it seems clear that the facts and circumstances leading to dismissal support a dismissal with prejudice. In Angelini, 553 F.Supp. at 370, the court dismissed the indictment with prejudice because the case had been “lost in the shuffle” of the court system. Similarly, this case can be characterized as having been “lost in the shuffle” between the Third Circuit Court of Appeals, the United States Attorney’s Office, and the District Court.

Prosecution of this case will also frustrate the purpose of the Act and the administration of justice. The Speedy Trial Act was designed to implement and enforce the sixth amendment right to a speedy trial and to ensure uniformity of the speedy trial concept throughout the nation. H.R. Rep. No. 93-1508, 93d Cong.2d Sess., reprinted in 1974 U.S.Code Cong. and Adm. News, 7401. To this end, the Act establishes specific, mechanical time limits within which the various stages of a prosecution must occur; in this way, the Act is more stringent than the sixth amendment which permits a more flexible approach based largely on the prejudice sustained by a defendant because of delays in prosecution. United States v. Iaquinta, 674 F.2d 260, 264 (4th Cir.1982).

In this case, expiration of the speedy trial clock occurred because of the sort of administrative mix-up or neglect which the Act was intended to redress. To dismiss the indictment against Jones without prejudice would contravene the purpose of the Act by condoning a lengthy delay caused by the fact the case was lost in the shuffle when the Act is intended to provide orderly and expeditious federal criminal prosecutions. Furthermore, prosecution of this action would undermine the public’s interest and that of the defendant in a speedy criminal trial. The circumstances leading to dismissal in this case coupled with the seriousness of the offenses with which defendant is charged, the needs of justice, and the effect of a prosecution on the administration of the Speedy Trial Act warrant dismissal with prejudice.

      . The following is an exact copy of the letter dated March 1, 1984 which the Clerk for the Court of Appeals for the Third Circuit sent to the Clerk of the District Court.

      . The March 2, 1984 docket entry of the District Court Clerk gives no notice that the petition for writ of certiorari was denied; the same docket entry had been made by the District Clerk on' December 1, 1983 at the time the Court of Appeals affirmed my judgment. By order of January 3, 1985, the docket sheets of the clerk are made part of the record.

      . On the copy of the March 1, 1984 letter Stanford Schmukler presented at the hearing, a check mark appears at the name of Assistant United States Attorney JoAnne Epps suggesting that Mr. Schmukler may have received the copy intended for Ms. Epps.

      . I, JoAnne A. Epps, being duly sworn according to law, do state as follows:
      1. I am an Assistant United States Attorney in and for the Eastern District of Pennsylvania, and am assigned to prosecute United States v. John D. Jones, Criminal No. 82-00366.
      2. On or about August 1, 1984,1 telephonically inquired of the Clerk of the United States Supreme Court regarding the status of the Jones case, which matter had been before the Supreme Court upon writ of certiorari as a result of an affirmance by the Third Circuit Court of Appeals of Judge Huyett’s order disqualifying Jones’ retained counsel, Wallace Worth. I was informed by the Clerk of the Supreme Court that certiorari had been denied on February 28, 1984, and that the matter had been returned to the Third Circuit.
      3. On or about the same day I telephonically contacted the Clerk of the Third Circuit Court of Appeals and was advised that a letter serving as a mandate had been issued on March 1, 1984, addressed to the District Court with copies to defense counsel, Stanford Shmukler, and myself.
      4. I did not receive a copy of the Third Circuit’s March 1, 1984 mandate letter until a copy was recieved [sic] attached to Judge Huyett’s order of October 16, 1984.
      5. While the office of the United States Attorney for the Eastern District of Pennsylvania does receive the Criminal Law Reporter, it is not my policy to review it in order to ascertain the status of my pending cases, nor is it the responsibility of anyone in this Office to do so on behalf of Assistant United States Attorneys.
      6. With regard to incoming mail, I have been informed, and therefore state to the best of my information and belief, that all non-personal mail is opened by staff of the United States Attorney’s Office mailroom, after which it is forwarded to the appropriate section chief. All mail from the Third Circuit Court of Appeals is forwarded to Walter S. Batty, Jr., Assistant United States Attorney and Chief of Appeals. The United States Attorney’s Office maintains no log of incoming mail.

      . I, Walter S. Batty, Jr., being duly sworn according to law, do state as follows:
      1. I am an Assistant United States Attorney in and for the Eastern District of Pennsylvania, and am Chief of Appeals.
      2. I am aware of the present status of United States v. Jones, Criminal No. 82-00366 and of the fact that, according to the Third Circuit Clerk Sally Mrvos, on March 1, 1984, a letter was sent by the Third Circuit Court of Appeals to the District Court with copies to defense counsel, Stanford Shmukler, Esquire and JoAnne A. Epps, Assistant United States Attorney, which letter was sent in lieu of a formal mandate.
      3. According to the procedures of the office of the United States Attorney, all correspondence from the Third Circuit Court of Appeals is directed to me for review.
      4. I do not recall ever having seen a copy of the March 1, 1984 Third Circuit letter regarding United States v. John D. Jones.

      . Section 3161(e) sets forth the time limit within which a new trial or retrial must commence after the action occasioning new trial or retrial. Although counsel for both parties have agreed that 18 U.S.C. § 3161(e) applies, technically this case does not fit the situation for which § 3161(e) was created because there has never been a first trial. No other provision of the Speedy Trial Act directly addresses the issue of the time within which a trial shall commence after an interlocutory appeal and after Flanagan v. United States, _ U.S. _, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) in which the Court held that the district court’s pretrial disqualification of defense counsel in criminal prosecution was not immediately appealable, this type of situation will not again arise. Nevertheless, the facts giving rise to dismissal of the indictment in this action are sufficiently analogous to those of a new trial or retrial after appeal that application of the seventy-day limit of section 3161(e) is warranted.

      . Section 3162(a)(2) states that the list of factors included therein is not exclusive: ‘‘[i]n 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 dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” (emphasis added).

      . Several lessons may be learned from the administrative muddle which took place in this case.
      1. The Clerk of the Court of Appeals should give clearer and more meaningful notice to the Clerk of the District Court when application for certiorari is denied by the Supreme Court.
      2. The District Court Clerk should be more alert to the precise language in a notice from the Clerk of the Court of Appeals as to the disposition of cases on appeal.
      3. The United States Attorney should keep careful track of his cases which are on appeal.