dissenting:

I respectfully dissent. I would hold that the order denying the motion to dismiss is appealable and, reaching the merits, I would reverse the order. Alternatively, I would grant a writ of mandamus compelling the trial judge to dismiss the indictments.

I

INTERLOCUTORY APPEAL

The majority correctly concludes that it should apply the three-part test set forth in Abney v. United States, 431 U.S. 651, 658-59 , 97 S.Ct. 2034, 2039-2040 , 52 L.Ed.2d 651 (1977), to determine whether an interlocutory appeal will lie. My quarrel is with the majority’s application of the test.

The first Abney criterion is that the challenged order be a “complete, formal, and, in the trial court, final rejection” of the defendants’ claim. Id. at 659 , 97 S.Ct. at 2040 . It cannot leave the matter “open, unfinished, or inconclusive.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225 , 93 L.Ed. 1528 (1949). The Supreme Court in United States v. MacDonald, 435 U.S. 850, 858-59 , 98 S.Ct. 1547, 1551-1552 , 56 L.Ed.2d 18 (1978), held that the denial of a constitutional speedy trial claim is not such an order because

A speedy trial claim based on the statute stands on different footing. As the majority recognizes, there is no need, in fact no opportunity, to measure prejudice to the defendants. If the indictment is not filed or the trial not commenced within the time limits provided, a violation has occurred. 18 U.S.C. §§ 3161-62 (1976 & Supp. Ill 1979). The only determination the judge need make is whether the statutory limits were exceeded.

The majority argues that a delay based on § 3161(h)(8)(A) of the Act is an example of a decision that would not be final before trial. That section permits the trial judge to grant a continuance “on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161 (h)(8)(A) (1976). If the judge grants such a continuance, he must set forth in the record his reasons for doing so. Id. If there are no reasons or if they are inadequate, the period of delay is not excludable time. Nowhere in the Act is the trial court permitted, after trial, to weigh delays against the effects of those delays.

There is simply no basis on which one could conclude that the denial of a Speedy Trial Act claim is anything less than final at the time it is made. No events at trial can convert excludable delay into nonex- *772 dudable delay or vice versa. As we stated in United States v. Griffin, 617 F.2d 1342, 1345 (9th Cir. 1980), in relation to a vindictive prosecution claim, “all the facts relevant to the . . . claim will be apparent and known to the parties prior to trial. No further purpose can be served by postponing a determination of the issue.”

The second element of the Abney test requires that the decision not be “simply a ‘step toward final disposition of the merits of the case [that would] be merged in final judgment.’ ” 431 U.S. at 658 , 97 S.Ct. at 2039 , quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. at 546 , 69 S.Ct. at 1226 . The Supreme Court in MacDonald held that a constitutional speedy trial claim is not independent of the merits because “[t]he claim would be largely satisfied by an acquittal resulting from the prosecution’s failure to carry its burden of proof.” 435 U.S. at 859 , 98 S.Ct. at 1552 . This is so because the crucial factor in a sixth amendment speedy trial claim is the existence of prejudice.

In contrast, a Speedy Trial Act claim is neither measured by prejudice to the defendant or any other event at trial, nor is it “largely satisfied” by acquittal. A defendant under the Speedy Trial Act is entitled to more than freedom from prejudice; he or she is entitled to an immediate dismissal if the indictment is late filed or the trial tardily commenced. 18 U.S.C. § 3162 (1976). The focus of the Act, as discussed below, is on delay itself, not on prejudice. Additional delay and the trial, itself, would compound the harm to the defendant and to the public. The appeal therefore satisfies the second Abney criterion.

The third Abney requirement is that the right asserted be one that will be “lost, probably irreparably” if review must await final judgment. Abney v. United States, 431 U.S. at 658 , 97 S.Ct. at 2039 , quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. at 546 , 69 S.Ct. at 1225 . The Supreme Court in MacDonald , focusing on the prejudice to a defendant’s ability to defend himself, saw only “superficial attraction in the argument that the [constitutional] right to a speedy trial . . . must be vindicated before trial in order to insure that no non-speedy trial is ever held.” 435 U.S. at 860-61 , 98 S.Ct. at 1552-1553 . In the Speedy Trial Act, however, Congress addressed delay as a problem in itself: it sought to insure that there would be no nonspeedy trials. 1 This purpose makes the MacDonald rationale inapt.

*773 The rights conferred by Congress in the Speedy Trial Act, unlike rights under the sixth amendment guarantee, are of a sort that must be vindicated prior to trial if they are to have any meaning, either to defendants or to the public. If denial of a Speedy Trial Act claim may only be reviewed on appeal from a conviction, then a remedy is not available to those who are ultimately acquitted (but who nonetheless suffer all of the disadvantages which concerned Congress), nor to those who, perhaps worn down by a lengthy pretrial delay, ultimately plead guilty. Such a procedure would “reinforce the legitimacy of delay.” H.R.Rep. No.93-1508, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 7401, 7405. Finally, the claim, if upheld on appeal from a conviction, would probably result in dismissal of the charges against the defendant with prejudice, 2 making the trial a fruitless exercise. If dismissal without prejudice is permitted, then the defendant has achieved nothing but the privilege of being tried a second time. This hardly compensates for the impermissible delay of the first trial.

The conclusion seems inescapable that interlocutory appeals are appropriate in Speedy Trial Act cases. The instant case is illustrative. In this case, no one denies that the Act was violated. At least sixty-four nonexcludable days passed between arrest and indictment, while thirty days is the maximum permitted by the Act. 18 U.S.C. § 3161 (b) (1976). The only dispute is whether the dismissal sanction applies. Our ability to decide this question will not be improved by the development of facts at trial. On the other hand, the trial will seriously burden these defendants who, if their contentions are correct, have a right to an immediate dismissal. They are entitled to a determination before trial of the question they have presented.

il

MANDAMUS

If appeal does not lie, then mandamus should issue directing the district court to dismiss the indictment because it was not filed within the time limits of the Speedy Trial Act.

The only question we must consider is whether the dismissal sanctions of the Act apply to this case, or only to cases in which the arrest occurred after July 1, 1980. 18 U.S.C. § 3163 (c) (Supp. Ill 1979). By denying the writ, the court does not reach that question. As I understand the majority’s reasoning, the writ is denied because the answer to the question is not clear.

Apparently following a cryptic statement in Bauman v. District Court, 557 F.2d 650, 660 (9th Cir. 1977), the majority holds that if the district court is faced with a confusing question of pure law, its resolution of that question cannot be “clearly erroneous.” This misconstrues the concept of clear error in mandamus law.

The Supreme Court’s recent decision in Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 , 101 S.Ct. 188 , 66 L.Ed.2d 193 (1980) made it abundantly clear, if it was not already, that mandamus is generally not available to correct the erroneous discretionary decisions of the district courts. This is because the error, if made, is rarely “clear and indisputable” if the decision is discretionary. Id. There is no discretion involved in the decision challenged here. If we decide that the district court was wrong in its reading of 18 U.S.C. § 3163 (c), appellants’ right to relief will be “clear and indisputable.” The district court will have no choice but to dismiss. 18 U.S.C. § 3162 (a)(1) (1976). As the District of Columbia Circuit aptly stated, “[t]he fact that the error . . . was not apparent until after the [appellate] court decided the principal case is no reason for refusing to decide the issue.” Colonial *774 Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C.Cir.1975). Indeed, the final guideline in Bauman for the appropriateness of mandamus is that “[t]he district court’s order raises new and important problems, or issues of law of first impression.” Bauman v. District Court, 557 F.2d at 655 . 3

Ill

CONSTRUCTION OF 18 U.S.C. § 3163 (c)

18 U.S.C. § 3163 (c). The government asserts that the sanctions apply to late indictments if the arrest occurred after July 1, 1980, and to late trials if the indictment occurred after July 1, 1980 4 This reading is perhaps possible if the section is read alone, but an examination of the Act’s structure and legislative history compels a different interpretation.

The original version of section 3163(c) reads as follows:

Speedy Trial Act of 1974, Pub.L.No.93-619, § 3163(c), 88 Stat. 2081 (1974). It made no distinctions among proceedings in various stages. 5 The sanctions simply became operative five years after the Act became effective. The time limits (arrest to indictment; indictment to trial), lenient at the beginning, were progressively shortened during the Act’s five-year phase-in period. The time limits began to run on July 1, 1976 even as to proceedings initiated before that date, so that by 1979 when the sanctions became effective all parties would be aware of the limits and sanctions. The Act thus provided a substantial period during which the federal criminal justice system could accommodate itself to the new regime.

In 1979, Congress decided to defer the imposition of sanctions until July 1, 1980. Speedy Trial Act Amendments of 1979, Pub.L.No.96-43, 93 Stat. 327 (1979). This was done to give district courts and prosecutors a full year of experience under the shortest time limits before the sanctions became mandatory. H.R.Rep.No.96-390, 96th Cong., 1st Sess. (1979), reprinted in [1979] U.S.Code Cong. & Ad.News 805, 812. The amendments passed in 1979 contained the current language of section 3163(c). The House Report gives the following explanation of that provision:

Id. at 816 (emphasis added). The implication of this language is that all late indictments filed after July 1 are subject to dismissal. After July 1, the only cases in which violations would clearly not be subject to sanctions would be those in which the trial was late, but the indictment was *775 filed before July 1. In the instant case, the indictment was filed on July 9,1980. In my view, the statute requires its dismissal.

The government finds support for its reading of the statute in the guidelines promulgated by the Judicial Conference. Committee on the Administration of the Criminal Law, Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974 at 66-67 (Dec. 1979 version). However, those guidelines are not intended to be binding and cannot be used to controvert the legislative history. Id. at i. 6

Reading the Act to apply the sanctions to all indictments filed after July 1 does not subvert any of its purposes, but rather furthers them. The government knew of the time limits far in advance of this proceeding. It has offered no excuse for its gross failure to comply.

I think the error of the district court in denying defendants’ motion to dismiss is clear and mandamus should issue if this court will not entertain the appeal.

. The House Report on the Act notes that the decisions of the Supreme Court on the sixth amendment right to a speedy trial fail to provide any guidance as to the length of delay that will be tolerated, because the test turns on prejudice to the defendant and can only be applied after trial:

H.R.Rep.No.93-1508, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 7401, 7405. The report also recognizes that prejudice to the defendant is only one kind of harm that is caused by delayed trials:

Id. at 7408 . Defendants in custody suffer correspondingly greater disabilities. Id.

The House Committee was also concerned with the detrimental effects delayed criminal trials have on the public interest. It noted particularly the increased probability that a defendant released on bail will commit further crimes if the trial is delayed more than sixty days. Id. at 7407, 7408-09 . The Committee also considered the financial and administrative burden placed on taxpayers by lengthy delays in trying accused criminals. Id. at 7408-09 .

On the basis of these considerations Congress determined that strict limits should be placed on pretrial delay to insure, in effect, that “no nonspeedy trial is ever held.” The Committee report quoted with approval the remarks of Assistant Attorney General (now Justice) Rehnquist:

Id. at 7414 .

. The legislative history of the Act makes it clear that dismissal with prejudice was intended to be the preferred remedy. The House version of the bill would have required dismissal with prejudice in all cases in which the time limits were not met. H.R.Rep.No.93-1508, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 7401, 7403. The Senate version would have permitted reprosecution in exceptional circumstances. Id. The House noted this difference, and recommended a bar to re-prosecution in all cases. Id. at 7416 . The bill, however, was amended on the floor of the House to permit dismissal without prejudice based on a consideration of specified factors. 120 Cong.Rec. 41793-96 (1974).

. If this case is not appealable, the other Bau-man guidelines indicate the appropriateness of mandamus relief as well. For the reasons set forth in section I, supra, the petitioners have no other adequate means of attaining the relief they desire, and they will be damaged in a way not correctable on appeal from a conviction. Bauman v. District Court, 557 F.2d at 654-55 . The remaining guideline, which suggests that mandamus is appropriate if the error is oft-repeated, is not relevant here. Id. at 655 .

. The Act provides for a maximum of thirty nonexcludable days between arrest and indictment, 18 U.S.C. § 3161 (b), and for a maximum of seventy nonexcludable days between indictment and trial. 18 U.S.C. § 3161 (c)(1). A violation of either time limit may result in dismissal. 18 U.S.C. § 3162 (a)(1) & (2).

. This is even more significant in view of the fact that distinctions were and are made among the various stages of a proceeding for the purpose of determining when the applicable time limit began to run. 18 U.S.C. § 3163 (a) & (b). When Congress wished to draw such distinctions, it was capable of doing so with some clarity.

. The trial judge was under the impression that the Guidelines represent the interpretation of the committee that drafted the Act. He apparently regarded the Judicial Conference’s position as a binding interpretation. This of course is incorrect and provides additional grounds for not deferring to the trial judge’s interpretation.