The issue presented in this appeal is whether a motion for rehearing en banc filed after the time authorized by Fed.R.App.P. 35(c) and 40(a) is a "proceeding concerning the defendant ... under advisement by the court"1 for the purpose of tolling the Speedy Trial Act. The district court held that the twenty-seven days we considered the government's untimely motion for rehearing en banc did not toll the seventy day retrial provision of the Act.2 We reverse.

Robert Black was convicted of armed assault on a correctional officer at Lorton Reformatory in Lorton, Virginia. On September 28, 1982, 692 F.2d 314, we reversed the district court because the jury was erroneously instructed on the law of self defense. Subsequently, the Solicitor General concluded that traditional principles of self defense should not apply to a confrontation between a disobedient inmate and a prison guard. Therefore, the Solicitor General requested the government to seek an extension of time for filing a petition for rehearing before the original panel. After we granted the extension, the government filed for rehearing before the panel.3 A divided panel denied the rehearing petition on December 8, 1982, and our mandate issued on December 15, 1982.4 The Solicitor General then authorized the filing of an en banc petition. On January 12, 1983, the government requested permission to file an untimely petition for rehearing en banc, which also requested recall of the mandate. We considered the petition for twenty-seven days before denying it on February 8, 1983.

On March 3, 1983, Black moved to dismiss the indictment in the district court. Black contended that the government had violated Sec. 3161(e) of the Act because more than seventy days had elapsed since December 15, 1982, when this court's mandate had issued. Section 3161(e) of the Act provides that a defendant's retrial following an appeal "shall commence within seventy days from the date the action occasioning the retrial becomes final." Reasoning that the issuance of our mandate was the "action occasioning retrial" that triggered the Act's time limits, the district court agreed with Black's contention. The district court ruled that the twenty-seven days during which the en banc motion was pending should not be excluded under Sec. 3161(h)(1)(J) from the seventy day limit, as the government argued, because the motion did not involve a "proceeding concerning the defendant ... under advisement by the court."5 According to the lower court, jurisdiction revested in it once our mandate issued; and therefore, a stay of the proceedings or a recall of the mandate was necessary to toll the Act for the twenty-seven days we held the government's motion under advisement. Although the lower court found that all acts of the government had been made in good faith, it dismissed Black's indictment with prejudice.

When drafting the Speedy Trial Act, Congress recognized that in processing criminal cases a mechanical adherence to time limits would not serve the interests of the defendant, the government, the courts, or society.6 Indeed, Congress considered flexibility necessary for the administration of the Act. See H.R.Rep. No. 1508 at 7402-08. A. Partridge, Legislative History of Title I of Speedy Trial Act of 1974 94 (Fed. Judicial Center 1980). Congress, therefore, provided exemptions in Sec. 3161(h)(1) to toll the seventy day period. The 1979 amendments to the Act also indicate a desire to eliminate an unduly restrictive interpretation of excludable periods and to increase the Act's flexibility. See H.R.Rep. No. 390, 96th Cong., 1st Sess. 2-12, reprinted in 1979 U.S.CODE CONG. & AD.NEWS 805, 806-16. Excludable periods in Sec. 3161(h)(1) cover both trial and appellate proceedings. See United States v. Saintil, 705 F.2d 415, 417 (11th Cir.1983). Under the exception in Sec. 3161(h)(1)(J), the court must stay the seventy day period for up to thirty days when "any proceeding concerning the defendant is actually under advisement by the court."

The district court found the Sec. 3161(h)(1)(J) exception inapplicable on the ground that the government's motion was untimely. Because the motion was made after our mandate issued, the district court found that jurisdiction revested in it and that recall of our mandate was necessary to toll the Act. Under Fed.R.App.P. 41(a), a timely filing of a petition for rehearing stays the mandate until disposition of the petition. However, no reacquisition of appellate jurisdiction is needed to deny a petition for rehearing filed after the mandate has issued. United States v. DiLapi, 651 F.2d 140, 144 n. 2 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S. Ct. 1428, 71 L. Ed. 2d 648 (1982). Although this court did not explicitly recall or stay the mandate, we had inherent power to do so. See Sparks v. Duval County Ranch Co., 604 F.2d 976, 979 (5th Cir.1979), cert. denied, 445 U.S. 943, 100 S. Ct. 1339, 63 L. Ed. 2d 777 (1980). Had we granted the government's petition, we would have recalled the mandate. Cf. United States v. Dunn, 706 F.2d 153, 155 (5th Cir.1983) ("the purposes of the Speedy Trial Act make clear that ... it was not necessary to recall the mandate" during the period the government's petition for certiorari was pending before the Supreme Court).

If we had granted the government's motion instead of denying it, no grounds would have existed for alleging a violation of the Act. We believe that dismissal of a criminal defendant's indictment should not depend on whether we deny or grant an untimely motion for rehearing en banc. Consequently, we are of the opinion that Sec. 3161(h)(1)(J) authorizes up to a thirty day exclusion for the time that an appellate court holds a motion for rehearing en banc under advisement, even though the motion was not timely filed.7 Therefore, we hold that the government's motion was a "proceeding concerning the defendant ... under advisement by the court" that tolled the seventy day retrial period.

For the foregoing reasons, the judgment of the district court is

REVERSED.

In my view, there was in this case a clear violation of the Speedy Trial Act. I think that the district court was required to dismiss the indictment, and I do not think that it abused its discretion in dismissing with prejudice.

From the majority's contrary conclusions, I respectfully dissent.

The majority opinion recites the operative sequence of events. I would add only that after the panel decision, the government sought and obtained an extension of time to file a petition for rehearing with a suggestion for rehearing in banc. The extension was granted, but on the next to the last day of extended period, the government filed only a simple petition for rehearing. We are told now that this was done out of courtesy to the panel because the government was advancing a contention to justify rehearing which had neither been briefed nor argued when the case was first heard.1

When rehearing was denied and the mandate issued, the government remained silent for over thirty days. It did not move to stay issuance of the mandate; it did not seek a further extension of time in which to file a petition for rehearing with a suggestion for rehearing in banc. During the period of the government's inaction, both the defendant and the district court made a concerted effort to fix a date for retrial. The district court and defendant were met with silence and evasion prior to the time that the government belatedly filed a petition for rehearing with a suggestion for rehearing in banc accompanied by a motion for leave to file it out of time. While we denied the government's motion for leave to file its petition for rehearing out of time on the fifty-fifth day of the seventy day trial period prescribed by the Speedy Trial Act, the government would still not respond to defendant's request for a trial date. Defendant, upon the expiration of the seventy day period, moved to dismiss the indictment with prejudice and the district court granted his motion.

In holding that the district court erred in dismissing the indictment, the majority accepts the government's argument that the period in which the Government's gratuitous and unauthorized petition for rehearing with a suggestion for rehearing in banc was pending before us (January 12, 1983 to February 8, 1983) should be excluded in computing the seventy day period for retrial prescribed by the Act. If this period is excluded, I agree that the district court prematurely dismissed the indictment. But in my view a construction of the Act permitting the exclusion is one that stands the Act on its head.

The Act permits the exclusion of "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court" in computing whether the seventy day period is exceeded. 18 U.S.C. Sec. 3161(h)(1)(J). It seems to me that as a matter of statutory construction the "proceeding concerning the defendant ... actually under advisement" must be one that is authorized by law. As I have shown in the text as well as in n. 1, the government's belated attempt to obtain rehearing in banc was neither authorized by the rules nor by us. Indeed it was in violation of the rules. Moreover, as a technical matter there was no "proceeding concerning the defendant" before us. Our mandate had issued well before leave to file the new petition for rehearing with a suggestion for rehearing in banc was filed. Thus we had lost jurisdiction of the case. See United States v. DiLapi, 651 F.2d 140, 144 (2 Cir.1981), cert. denied, 455 U.S. 938, 102 S. Ct. 1428, 71 L. Ed. 2d 648 (1982); see also, Alphin v. Henson, 552 F.2d 1033 (4 Cir.), cert. denied, 434 U.S. 823, 98 S. Ct. 67, 54 L. Ed. 2d 80 (1977). We could only reacquire jurisdiction by recalling the mandate. See Meredith v. Fair, 306 F.2d 374, 376 (5 Cir.1962). Unless and until that was done, we could take no action with respect to the defendant. The government's motion was thus a nullity with respect to the exclusion of time provided by Sec. 3161(h)(1)(J).

Merely that we could have reacquired jurisdiction to entertain the petition had we recalled the mandate should make no difference. The fact is that we did not. It seems to me that when the government, for reasons however mistaken, concludes to proceed outside of the requirements of the Federal Rules of Appellate Procedure, it must suffer the consequences of its own aberrant behavior. By enacting the Speedy Trial Act, Congress has guaranteed certain rights to an accused, one of which is the right to be retried within seventy days unless proper proceedings delaying retrial are pending. It ill behooves the government or this court to subvert this clear expression of legislative intent.III.

Since I am firm in my conclusion that the district court correctly dismissed the indictment in this case, I must face the question of whether the district court correctly dismissed the indictment with prejudice. I recognize that defendant is charged with a serious crime. He is, however, serving another sentence, and the delay in this trial is so entirely attributable to the government, which failed to fulfill its responsibilities notwithstanding the demands of the defendant that he be given his rights and the efforts of the district court to assure compliance with the law, that I can only conclude that dismissal with prejudice was entirely within the district court's discretion.

I would affirm the judgment of the district court.