          United States Court of Appeals
                     For the First Circuit

No. 12-2049

                    UNITED STATES OF AMERICA,

                           Appellant,

                               v.

                    HASAN WORTHY, a/k/a Moto,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]


                             Before

                  Boudin, Howard and Thompson,

                         Circuit Judges.


     Renée M. Bunker, Assistant United States Attorney, and Thomas
E. Delahanty II on brief for appellant.
     Edward S. MacColl and Thompson, Bull, Furey, Bass & MacColl,
LLC, P.A. on brief for appellee.



                        November 14, 2012
            Per Curiam.    The United States appeals from a district

court order granting defendant Hasan Worthy's motion for release on

account of 18 U.S.C. § 3164 (2006).      This court has jurisdiction

pursuant to 18 U.S.C. § 3731 ("appeal by the United States . . .

from a decision or order, entered by a district court of the United

States, granting the release of a person charged with . . . an

offense").    The following facts are undisputed.

            Hasan Worthy was initially arrested and ordered to be

detained on August 6, 2010, on a charge of conspiracy to possess

cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1).      An

initial indictment and several superseding indictments followed,

the last being filed on October 26, 2011, charging Worthy with

three counts related to the possession of cocaine with intent to

distribute and a fourth count related to the use of a communication

facility (specifically, a telephone) in the commission of drug

offenses.    On November 1, 2011, Worthy entered a plea of not guilty

to the fourth superseding indictment.

            In June and July of 2012, Worthy filed motions seeking

dismissal of the fourth superseding indictment and release from

custody under sections 3161 and 3164 of the Speedy Trial Act, 18

U.S.C. §§ 3161, 3164.     At argument on July 27, 2012, the government

stipulated that it had violated the Speedy Trial Act because a

total of 147 non-excludable days had run off the 70-day trial clock

set by section 3161.


                                   -2-
           That provision states, in relevant part:

           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.

18 U.S.C. § 3161(c)(1); see also 18 U.S.C. § 3161(h) (2006 & Supp.

IV 2011) (listing periods excluded from 70-day calculation).

           When the 70-day clock set by section 3161 expires, the

trial   judge   may    dismiss   the   case   with    prejudice      or    without

prejudice,   based     on   factors    specified     by   statute    (e.g.,   the

seriousness of the offense, the circumstances that led to the

dismissal and "the impact of a reprosecution on the administration

of [the Speedy Trial Act]").       18 U.S.C. § 3162(a)(2). In             Worthy's

case, the district judge ordered the indictment dismissed without

prejudice, paving the way for a new indictment.

           At around 9:44 a.m. on August 2, 2012, the district court

ordered Worthy's discharge; approximately 15 minutes later and

without any interruption of physical custody, Worthy was re-

arrested   on   a     new   criminal   complaint     listing   one    count    of

possession of a mixture or substance containing cocaine with intent

to distribute.      On August 7, 2012, Worthy was re-indicted on four

counts which were virtually identical to the counts charged in the

October 2011 indictment and again pled not guilty.

                                       -3-
            Under the statute, this new indictment, permitted because

the dismissal was without prejudice, restarted the 70-day clock

even though the new indictment charged exactly the same offenses.

18 U.S.C. § 3161(d)(1); see also United States v. Rush, 738 F.2d

497, 511 (1st Cir. 1984).         However, while the trial was thus back

on track, Hasan Worthy sought immediate release pending his retrial

on the ground that his detention was governed as well by a

different    clock    which--he    argued--was   not   reset   by    his   re-

indictment.

            Section 3164 specifies that a "person who is being held

in detention solely because he is awaiting trial" must be tried

"not later     than   ninety   days   following the    beginning     of    such

continuous detention," and "[n]o detainee . . . shall be held in

custody pending trial after the expiration of such ninety-day

period required for the commencement of his trial."            18 U.S.C. §

3164.1     The reference to 90 days is misleading because the section

3161 exclusions apply and can greatly extend the time.              See id. §

3164(b).

            Nevertheless, the permissible detention period under the

prior complaint and indictment, like the time to start trial under

that indictment, had (the government stipulated) expired by the end


     1
      Worthy initially moved for his immediate release and for
dismissal of the new indictment, but section 3164 only provides for
release--not dismissal--when its provisions are violated, see, e.g.,
United States v. Feurtado, 191 F.3d 420, 426 (4th Cir. 1999), and
Worthy has abandoned his dismissal request.

                                      -4-
of July 2012.   The new indictment unquestionably reset the 70-day

clock to zero, 18 U.S.C. § 3161(d)(1), and the government contends

that Worthy's arrest followed by the new indictment also began a

new 90-day period for detention.      Worthy argues that no statute

expressly restarts the 90-day clock and, the time having expired

for detention under the old complaint and indictment, he cannot be

held pending his trial on the new indictment.

           The district court, noting that neither the Supreme Court

nor the First Circuit had ruled directly on this issue, adopted the

view of the Ninth Circuit in United States v. Tirasso, 532 F.2d

1298 (9th Cir. 1976). Tirasso holds that re-indictment on the same

offense does not restart section 3164's 90-day clock, saying that

"[t]he language of section 3164 is straightforward" in this regard,

id. at 1299, although the court conceded that a defendant otherwise

subject to detention might easily flee, id. at 1300-01.    In fact,

Worthy had been kept in detention under the prior indictment based

on findings that he was both a flight risk and a danger to public

safety.2



     2
      The government pointed to a letter that Worthy sent from jail
in which--apparently referring to the cooperating witnesses in his
case--he wrote, "I'm going to look for my rats to kill them."
According to the government, Worthy also described plans to smuggle
drugs into jail and wrote of his intention to leave the country.
In Worthy's detention hearing the magistrate judge found that, in
addition to the presumption of detention based on his charged
offenses, 18 U.S.C. § 3142(e)(2), (f)(1), the government had
demonstrated by "clear and convincing evidence" that Worthy
presented a risk of flight and a danger to the community.

                                -5-
           With due respect to the Tirasso court's view, we do not

agree that section 3164 compels such a result nor can we imagine

Congress intending it.

           The holding in Tirasso turns on the sentence in section

3164(c) that reads, "No detainee . . . shall be held in custody

pending trial after the expiration of such ninety-day period

required for the commencement of his trial."        At the extreme, one

might interpret this sentence to mean that a defendant who has been

detained for more than 90 non-excludable days may never again "be

held in custody pending trial," regardless of the charges--an

absurdity rejected by the Tirasso court itself, which said that

detention might be allowed following re-indictment for "completely

discrete offenses."   532 F.2d at 1300.

           In our view, Tirasso is mistaken.       The "linchpin of the

Speedy Trial   Act"   is   section    3161(c),   which   requires   that a

defendant be brought to trial within 70 days of the information,

indictment or initial appearance in court.               United States v.

Hastings, 847 F.2d 920, 924 (1st Cir. 1988).             On adoption, the

statute provided for a phase-in period during which each district

would formulate and implement a plan "to accelerate the disposition

of criminal cases . . . consistent with the time standards" set by

the Act.   See Speedy Trial Act of 1974, Pub. L. No. 93-619, 88

Stat. 2076, 2081 (1975).




                                     -6-
           Section 3164 was initially adopted as a set of "[i]nterim

limits" that would apply during the phase-in period; under these

interim limits, a defendant who was detained or designated as "high

risk" could only be held pending trial for 90 days.       Id.   This

provision was inserted "to assure priority" for cases involving

high-risk defendants and those who required detention pending

trial.   Id.; accord United States v. Mejias, 417 F. Supp. 579, 580

(S.D.N.Y. 1976), aff'd, 552 F.2d 435 (2d Cir.), cert. denied, 434

U.S. 847 (1977); see also United States v. Thomas, 49 F.3d 253, 257

(6th Cir. 1995).

           In its initial incarnation, the Speedy Trial Act did not

specify whether the various periods excluded from the calculation

of the 70-day clock under section 3161 would also be excluded from

the calculation of the 90-day clock under section 3164.         This

omission led to a circuit split: the Ninth Circuit held in Tirasso

that the periods of exclusion did not apply to section 3164 and

that the expiration of the 90-day clock led to automatic release,

Tirasso, 532 F.2d at 1300, while the D.C. Circuit held in United

States v. Corley, 548 F.2d 1043, 1044 (D.C. Cir. 1976) (per

curiam), that the periods of exclusion did apply to section 3164.3




     3
      See also United States v. Howard, 440 F. Supp. 1106, 1108 (D.
Md. 1977) (exclusions apply to section 3164), aff'd on other
grounds, 590 F.2d 564 (4th Cir.), cert. denied, 440 U.S. 976
(1979); Mejias, 417 F. Supp. at 582-83 (same).


                                -7-
           In 1979 Congress sided with Corley and rejected Tirasso

on this issue by inserting a cross-reference to the section 3161

exclusions in the amended section 3164.             See Speedy Trial Act

Amendments of 1979, Pub. L. No. 96-43, 93 Stat. 327, 329 (codified

as amended at 18 U.S.C. § 3164(b)).          But Corley had not dealt with

whether the 90-day clock could be reset by dismissal and re-arrest

on a new complaint, and neither the original nor the amended text

of section 3164 deals expressly with the question whether the 90-

day clock restarts.    The argument that the plain language resolves

the question is wrong: the statute does not even address the

restart question.

           Rather, the main argument for a negative answer depends

on an inference from the fact that section 3161 says--albeit

opaquely--that the 70-day clock does start afresh.                  But such

negative inferences are merely possible readings, and the negative

inference in this case is unpersuasive.         Section 3164, intended as

a temporary phase-in measure, never meshed perfectly with section

3161,   which   is   evident   from    the   original   lack   of   explicit

exclusions in section 3164.     Otherwise, high-risk defendants would

regularly have been discharged after 90 days long before the 70-

day-plus-exclusions clock required them to be tried.

           As for retrials, section 3162 explicitly allows for

dismissal without prejudice after the 70-days-plus-exclusions clock

expires, 18 U.S.C. § 3162(a)(2), inviting re-indictment.              If the


                                      -8-
70-day clock in such cases were not restarted, the new indictment

would also be subject to dismissal automatically.   So the restart

of the 70-day clock is in any case implicit in the permission to

re-indict.   The opaque restart provision, 18 U.S.C. § 3161(d)(1),

was merely spelling this out because of Tirasso, and its absence

from section 3164 invites no negative inference against restarting

that clock as well.

          Finally, it is unimaginable that Congress intended to

permit re-indictment on the same offense but contemplated that a

dangerous defendant or one who poses a risk of flight would

automatically be freed because 90 days plus exclusions had expired

on the detention under a prior charge and indictment.     One of the

purposes of assuring a speedy trial is "to avoid . . . an extended

period of pretrial freedom by the defendant during which time he

may flee, commit other crimes, or intimidate witnesses." Hastings,

847 F.2d at 924 (quoting A. Partridge, Legislative History of Title

I of the Speedy Trial Act of 1974, at 12 (1980)).       To refuse to

restart the 90-day clock following arrest and a new indictment is

to frustrate a central purpose of the Speedy Trial Act itself.

          Worthy's trial recently commenced in federal district

court in Maine and (it appears) has now ended with convictions on

all four counts.   Since section 3164(c) applies to detainees "held

in custody pending trial," the appeal may technically be moot,

although no party has so suggested.   However, the resetting of the


                                -9-
section 3164 clock is a recurring issue,4 and mootness is not a bar

for issues like this one that are "capable of repetition, yet

evading review." Libertarian Party of N.H. v. Gardner, 638 F.3d 6,

12 (1st Cir. 2011) (quoting Cruz v. Farquharson, 252 F.3d 530, 534

(1st Cir. 2001)).

          We therefore hold that when an indictment is dismissed

upon the motion of a defendant, the dismissal is without prejudice

and that defendant is again detained awaiting trial, section 3164's

90-day clock restarts at the moment that the defendant is re-

arrested, regardless of the nature of the charges in the new

complaint.   The district court's order of release is reversed.




     4
      See, e.g., United States v. Colon, 831 F. Supp. 912, 916-18
(D. Mass. 1993); see also United States v. Jaimes-Oliveros, No.
4:CR 10-324-BLW, 2011 U.S. Dist. LEXIS 53553, at *12-13 (D. Idaho
May 18, 2011); United States v. Wilcox, No. 06-445, 2007 U.S. Dist.
LEXIS 94046, at *7-8 (E.D. Pa. Dec. 26, 2007).

                               -10-
