KENNETH HASTINGS, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-324

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the First Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the court of appeals erred in reversing an
order dismissing an indictment with prejudice because of a Speedy
Trial Act violation.

   1. On December 17, 1986, petitioner was charged in an indictment
returned in the United States District Court for the District of
Massachusetts with seven counts of possession of cocaine and
methamphetamine, in violation of 21 U.S.C. 841(a)(1), and one count of
possession of a firearm during commission of a felony, in violation of
18 U.S.C. 924(c).  On March 10, 1987, the district court dismissed the
indictment without prejudice based on a five-day violation of the
Speedy Trial Act, 18 U.S.C. 3161 et seq. (Pet. App. 51a-73a).

   On March 11, 1987, a second indictment was returned, charging the
same eight counts as the original indictment and adding one new count.
 On July 22, 1987, the district court reconsidered its previous speedy
trial ruling and ordered that the first indictment should have been
dismissed with prejudice under the Speedy Trial Act, 18 U.S.C.
3162(a)(2), because the prosecutor had violated a local discovery rule
in the original proceedings (Pet. App. 78a-105a).  The district court
therefore dismissed the second indictment.

   The court of appeals reversed the dismissal of the second
indictment and remanded the case for trial (Pet. App. 1a-50a).  The
court identified the three factors that 18 U.S.C. 3162(a)(2) mandates
for consideration in deciding whether a Speedy Trial Act violation
should result in dismissal with or without prejudice:  the gravity of
the charged offenses;  the circumstances leading to dismissal;  and
the impact of a reprosecution on the administration of the Act and on
the administration of justice.  The court then found that the district
court's characterization of the charged crimes as "extremely serious"
was unassailable;  that an administrative oversight and the
unavailability of the trial judge had caused the delay, not the
prosecutor's violation of the discovery rule;  and that neither the
administration of justice nor the administration of the Speedy Trial
Act furnished any basis for dismissing the first indictment with
prejudice.  Pet. App. 1a-46a.

   On August 30, 1988, following the decision of the court of appeals,
the government voluntarily dismissed the indictment in this case, on
the ground that petitioner was being prosecuted by other authorities
for the same conduct (Supp. Br. App. 1a-2a).

   2. Petitioner contends (Pet. 17-24) that a pattern of governmental
misconduct that interferes with the administration of justice should
be considered in the balancing process under 18 U.S.C. 3162(a)(2) even
if the misconduct does not cause delay.  Petitioner also contends
(Pet. 24-32) that the court of appeals improperly substituted its
judgment for that of the district court in finding that the district
court abused its discretion in dismissing the indictment with
prejudice.

   Because the government has dismissed the indictment against
petitioner, it is highly unlikely that the decision of the court of
appeals will have any real effect on petitioner.  /1/ To be sure, the
voluntary dismissal of charges against petitioner leaves the
government free to reindict petitioner at some time in the future.
But even if, for that reason, this case is not technically moot,
petitioner's claim is still not ripe for review, since the court of
appeals did not enter a final judgment against petitioner.  The court
of appeals reversed an order dismissing the indictment with prejudice
and remanded the case to the district court for trial.  The court of
appeals' decision thus places petitioner in precisely the same
position he would have occupied if the district court had denied his
motion to dismiss and the government had dismissed the indictment at
that point.  If the government reindicts petitioner and he is
acquitted following a trial on the merits, his contentions will be
moot.  If, on the other hand, petitioner is convicted and his
conviction is affirmed on appeal, he will then be able to present his
Speedy Trial Act claim to this Court, together with any other claims
he may have, in a petition for a writ of certiorari seeking review of
a final judgment against him.  Accordingly, the court of appeals'
decision is not ripe for review by this Court.  /2/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1988

   /1/ We do not agree with petitioner's contention that the decision
of the court of appeals should be reviewed because it could affect
petitioner in a prosecution now pending against him in state court.
Petitioner argues (Supp. Br. 6-7) that the Massachusetts courts treat
speedy trial dismissals as barring all future prosecutions for the
same offense, and that if this Court were to grant certiorari and hold
that his second federal indictment should have been dismissed on
speedy trial grounds, he might be able to obtain a dismissal of the
state charges against him.  The infirmity in that argument, however,
is that the Massachusetts rule that petitioner cites applies to
dismissals of state prosecutions;  petitioner cites no case nor any
statutory authority suggesting that a dismissal of a federal
prosecution on speedy trial grounds would bar a state prosecution for
similar acts.  There is therefore no support for petitioner's
suggestion that a dismissal of his federal charges on speedy trial
grounds would help him in his state case and that this Court should
address his federal Speedy Trial Act claim for that reason.

   /2/ Because petitioner is not seeking review of a final judgment,
we are not responding on the merits to the questions presented by the
petition.  We will file a response on the merits if the Court
requests.