Article III(a) of the Interstate Agreement on Detainers requires that aprisoner against whom a detainer has been lodged be brought to trial within180 days after officials in the charging State have received the prisoner'srequest for disposition of the outstanding charges. The question presentedis whether the defendant waives that time limit by expressly agreeing toa trial date beyond the expiration of the 180-day period.


In the Supreme Court of the United States


No. 98-1299

THE STATE OF NEW YORK, PETITIONER

v.

MICHAEL HILL



ON WRIT OF CERTIORARI
TO THE NEW YORK STATE COURT OF APPEALS



BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

The Interstate Agreement on Detainers (IAD) provides a means by which aprisoner being held in one jurisdiction (the sending State) may obtain aspeedy resolution of charges pending against him in another jurisdiction(the receiving State). Article III(a) of the IAD provides that a prisoneragainst whom a detainer has been lodged "shall be brought to trialwithin one hundred and eighty days after he shall have caused to be deliveredto the prosecuting officer and the appropriate court * * * written noticeof the place of his imprisonment and his request for a final dispositionto be made of the indictment, information, or complaint." The questionin this case is whether the defendant's express agreement, through counsel,to begin his trial on a date that comes after the expiration of the 180-dayperiod constitutes a waiver of his speedy trial rights under Article III(a).The United States is a party to the IAD, see 18 U.S.C. App. § 2, at692, and is subject to the 180-day provision in Article III(a). See UnitedStates v. Mauro, 436 U.S. 340, 354 (1978). The Court's decision will thereforedetermine the waiver rules applicable to federal defendants who are broughtto trial from state prisons pursuant to IAD Article III(a).1

STATUTORY PROVISIONS INVOLVED
The relevant provisions of the Interstate Agreement on Detainers, 18 U.S.C.App. § 2, at 692-695, are set forth in an Appendix to this brief. App.,infra, 1a-3a.

1. The Interstate Agreement on Detainers (IAD) is a compact entered intoby 48 States, the United States, and the District of Columbia to achievethe efficient disposition of outstanding criminal charges brought againstprisoners incarcerated in other jurisdictions. As "a congressionallysanctioned interstate compact," the IAD is a federal law subject tofederal construction. Carchman v. Nash, 473 U.S. 716, 719 (1985).
A detainer is "a request filed by a criminal justice agency with theinstitution in which a prisoner is incarcerated, asking that the prisonerbe held for the agency, or that the agency be advised when the prisoner'srelease is imminent." Fex v. Michigan, 507 U.S. 43, 44 (1993). ArticleIII(a) of the IAD provides that a prisoner against whom a detainer is lodgedmay demand that he "shall be brought to trial within one hundred andeighty days" after he delivers his written demand to the prosecutorand court in the receiving State, unless that court grants a continuance"for good cause shown." 18 U.S.C. App. § 2, at 692. ArticleV(c) of the IAD provides that if the prisoner "is not brought to trialwithin the period provided in article III," the court in which theindictment is pending "shall enter an order dismissing the [indictment]with prejudice, and any detainer based thereon shall cease to be of anyforce or effect." 18 U.S.C. App. § 2, at 694.2

2. On New Year's Eve, 1992, respondent and three companions robbed and murderedMichael Weeks in a suburb of Rochester, New York. C.A. Rec. on Appeal 3,4-5. Respondent was subsequently incarcerated for a different crime in Grafton,Ohio. Pet. App. A12. He was serving that sentence on December 30, 1993,when Monroe County, New York, prosecutors filed a detainer against him basedon the robbery and murder of Weeks. J.A. 3-6. On January 4, 1994, respondentsigned a request pursuant to Article III(a) of the IAD for final dispositionof the Monroe County charges. The request form advised respondent that,upon delivery of his request to the prosecuting officer and court, "[y]oushall then be brought to trial within 180 days, unless extended pursuantto provisions of the Agreement [on Detainers]." J.A. 4, 6. Respondent'srequest was delivered to the Monroe County court and prosecutor on January10, 1994, thus starting the IAD's 180-day speedy trial clock. Pet. App.A2.
Respondent was formally indicted on March 11, 1994, and returned to NewYork on May 13, 1994. Pet. 1; Pet. App. A2, A13. On May 18, 1994, the casewas adjourned for the filing of defense motions. Pet. App. A6, A13. Afterpretrial hearings, the court resolved respondent's motions on December 5,1994. Id. at A2, A6, A13. Respondent does not dispute that the filing ofthose motions tolled Article III's speedy trial provisions between May 18,1994 and December 5, 1994. Id. at A5-A6, A13.3
On January 9, 1995, respondent, his counsel, and the prosecutor appearedbefore the court to set a trial date. J.A. 33-35; Pet. App. A2, A13. Asof this date, 161 "countable" days had expired under the IAD.Id. at A13-A14.4 At that hearing, the following colloquy took place:
[PROSECUTOR]: Your Honor, Mr. Huether from our office is engaged in a trialtoday. He told me that the Court was to set a trial date today. I believethe Court may have preliminarily discussed a May 1st date, and Mr. Huethersays that would fit in his calendar.
THE COURT: How is that with the defense counsel?
[DEFENSE COUNSEL]: That will be fine, Your Honor.
Id. at A14. The court then scheduled trial to begin May 1, 1995. Id. atA13.
On April 17, 1995, the respondent moved to dismiss the indictment basedon Article III(a)'s speedy trial provision. Pet. App. A6, A13. The trialcourt denied the motion, holding that the respondent "waived his rightto a trial within the 180-day period by concurring in the decision to seta trial date beyond the statutory period." Id. at A14. The court explainedthat counsel for respondent and the prosecutor "were present at thetime the trial date was set"; "[t]he court sought input from bothattorneys with respect to the proposed trial date"; and "[h]adcounsel raised an objection to the proposed trial date, the court was ina position to set the date within the 180-day statutory period." Id.at A15.

3. Respondent was subsequently tried and convicted of murder in the seconddegree and robbery in the first degree. Pet. App. A3. On appeal, the NewYork Supreme Court rejected his IAD claim, for the reasons stated by thetrial court. Id. at A9-A10.

4. The New York Court of Appeals reversed and ordered that respondent'sindictment be dismissed with prejudice under Article V(c). Pet. App. A1-A8.The court stated that "ensuring that a defendant is brought to trialwithin the [IAD's] speedy trial period is the responsibility of prosecutorsand courts, not defendants." Id. at A6. In the court's view, "theIAD does not impose an obligation on defendants to alert the prosecutionor the court to their IAD speedy trial rights or to object to treatmentthat is inconsistent within those rights." Ibid. "[T]o imposesuch an obligation," the court believed, "would be to shift theburden of compliance with the IAD from State officials," and "woulddiminish the statute's effectiveness and enforceability." Id. at A6-A7.
The court recognized that "[s]peedy trial rights guaranteed by theIAD may, of course, be waived by a defendant." Pet. App. A7. The courtexplained that "such waiver may be accomplished explicitly or by anaffirmative request for treatment that is contrary to or inconsistent withthose speedy trial rights." Ibid. The court held, however, that "where,as here, the defendant simply concurred in a trial date proposed by thecourt and accepted by the prosecution, and that date fell outside the 180-daystatutory period, no waiver of his speedy trial rights was effected."Id. at A7-A8.

A. A defendant may waive his rights to a speedy trial under the IAD by agreeingto a trial date that comes after the expiration of the applicable IAD period.Statutory provisions are presumptively subject to waiver. United Statesv. Mezzanatto, 513 U.S. 196, 201 (1995). Congress and the adopting Statespassed the IAD to allow prisoners to obtain a speedy resolution of detainersbecause of the deleterious effects of outstanding detainers on prisoners.See Cuyler v. Adams, 449 U.S. 433, 448-449 (1981); United States v. Mauro,436 U.S. 340, 359-360, (1978). Because the IAD confers speedy trial rightsthat are primarily for the prisoner's personal benefit, the prisoner maywaive his rights under the IAD.

B. A waiver of speedy trial rights under the IAD occurs when defense counselvoluntarily consents to a trial date beyond the time period specified bythe IAD. As a statutory right, there is no requirement that an IAD waiverbe accomplished by the defendant's intentional relinquishment of a knownright. "Almost without exception, the requirement of a knowing andintelligent waiver has been applied only to those rights which the Constitutionguarantees to a criminal defendant in order to preserve a fair trial."Schneckloth v. Bustamonte, 412 U.S. 218, 237 (1973). Thus, a party may waivehis speedy trial rights under the IAD by expressing his voluntary agreementto a trial date that would otherwise be untimely under the IAD. Cf. Mezzanatto,513 U.S. at 201, 203.
In this case, respondent's counsel agreed to a trial date that fell afterthe expiration of Article III(a)'s 180-day limit. That conduct constitutesa voluntary waiver of respondent's speedy trial rights under the IAD.

C. The court of appeals' contrary conclusion rested on its belief that adefendant has no duty to assert his IAD speedy trial rights or to objectto treatment that is inconsistent with those rights. Pet. App. A6-A8. Evenassuming that to be the case, respondent here did not simply sit silentlyas the trial court unilaterally scheduled an untimely trial. Instead, respondent'scounsel expressly consented in open court to the belated trial date proposedby the court. The prosecutor and the trial court were entitled to rely onthat action and to conclude that respondent had no legal objection to proceedingon that schedule.
The court of appeals' decision also is misguided as a matter of policy.It permits a defendant to agree to a late trial date under the IAD, andthen obtain a reversal of his conviction because the trial court did preciselywhat the defendant agreed to. Such "sandbagging" is unfair andshould not be rewarded, for it prevents trial courts and prosecutors fromcuring errors before they turn into fatal defects and confers an unjustifiedwindfall on a defendant.

THE SPEEDY TRIAL PROVISIONS OF THE IAD ARE WAIVED BY THE PRISONER'S EXPRESSAGREEMENT TO A TRIAL DATE OUTSIDE THE IAD's TIME LIMITS

A. The Speedy Trial Rights Created By The IAD Are Waivable

Under Article III(a) of the IAD, a prisoner against whom a detainer hasbeen filed has a right to be tried on the charges giving rise to the detainerwithin 180 days of the date the prosecutor and the court receive his demandfor final disposition of the charges. There is no dispute in this case thatthe speedy trial rights under Article III(a) are waivable. See, e.g., Pet.App. A7 ("Speedy trial rights guaranteed by the IAD may, of course,be waived."); Resp. C.A. Br. 11 ("[A]n inmate may, through hisactions, waive the benefits of the IAD.").5
The principle that a litigant may waive a right provided for his benefitapplies to "a broad array of constitutional and statutory provisions."United States v. Mezzanatto, 513 U.S. 196, 200 (1995). As this Court hasnoted, "[t]he most basic rights of criminal defendants are * * * subjectto wavier." Peretz v. United States, 501 U.S. 923, 936 (1991). Thoserights include the protection again double jeopardy, United States v. Broce,488 U.S. 563, 573 (1989); the right to a jury trial, Boykin v. Alabama,395 U.S. 238, 243 (1969); the right to have an Article III judge presideat voir dire, Peretz, 501 U.S. at 936-937; the right to counsel, Farettav. California, 422 U.S. 806, 835 (1975); and the constitutional right toa speedy trial, Barker v. Wingo, 407 U.S. 514 (1972).
The fact that the IAD does not specifically address the question of waiverdoes not mean that IAD rights cannot be waived. See Mezzanatto, 513 U.S.at 200-203. (waiver of Fed. R. Crim. P. 11(e)(6) and Fed. R. Evid. 410'sexclusion of statements made during plea discussions). "[A]bsent someaffirmative indication of [the legislature's] intent to preclude waiver,"this Court has "presumed that statutory provisions are subject to waiverby voluntary agreement of the parties." Id. at 201 (citing Evans v.Jeff D., 475 U.S. 717, 730-732 (1986) (prevailing party in civil rightsaction may waive its statutory eligibility for attorney's fees)).
While the "background presumption that legal rights generally * * *are subject to waiver by voluntary agreement of the parties" may beovercome if there is "some affirmative basis for concluding that [therelevant law] depart[s] from the presumption of waivability," Mezzanatto,513 U.S. at 203-204, there is no "affirmative basis" for findingthat the IAD's speedy trial rights are non-waivable. Rights under the IADare not "so fundamental to the reliability of the factfinding processthat they may never be waived without irreparably 'discrediting the federalcourts.'" Id. at 204 (citing 21 Charles Alan Wright & Kenneth W.Graham, Jr., Federal Practice and Procedure § 5039, at 207-208 (1977));see United States v. Black, 609 F.2d 1330, 1334 (9th Cir. 1979) (notingthat "[t]he protections of the IAD are not founded on * * * the preservationof a fair trial"), cert. denied, 449 U.S. 847 (1980); Yellen v. Cooper,828 F.2d 1471, 1474 (10th Cir. 1987) ("The concerns behind enactmentof the IAD[] are not of the truth-seeking kind.").
In addition, nothing in the structure or the legislative history of theIAD suggests an intent to preclude waiver of the rights created by the Agreement.The central question is whether the speedy trial rights under the IAD werecrafted primarily for the personal benefit of the defendant. If so, therights may be waived. See Commodity Futures Trading Comm'n v. Schor, 478U.S. 833, 848-849 (1986) ("[A]s a personal right, Article III's guaranteeof an impartial and independent federal adjudication is subject to waiver,just as are other personal constitutional rights that dictate the proceduresby which civil and criminal matters must be tried."); Insurance Corp.of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982)("Because the requirement of personal jurisdiction represents firstof all an individual right, it can, like other such rights, be waived.");see also Shutte v. Thompson, 82 U.S. (15 Wall.) 151, 159 (1872) ("Aparty may waive any provision, either of a contract or of a statute, intendedfor his benefit."). Compare Brooklyn Sav. Bank v. O'Neil, 324 U.S.697, 704-711 (1945) (right to liquidated damages under the Fair Labor StandardsAct not waivable in light of public policies underlying the Act).
Waiver is appropriate here because the speedy trial right under ArticleIII(a) was created primarily to protect defendants from the disadvantagesof detainers. See United States v. Eaddy, 595 F.2d 341, 344 (6th Cir. 1979)("[T]he rights created by the Agreement are for the benefit of theprisoner. They exist for his protection and are personal to him.")."The legislative history of the Agreement, including the comments ofthe Council of State Governments and the congressional Reports and debatespreceding the adoption of the Agreement on behalf of the District of Columbiaand the Federal Government, emphasizes that a primary purpose of the Agreementis to protect prisoners against whom detainers are outstanding." Cuylerv. Adams, 449 U.S. 433, 448-449 (1981). In particular, the legislative historyevidences concern that outstanding detainers seriously disadvantage prisonersby, inter alia, subjecting them to more onerous conditions of incarceration,precluding their participation in desirable work assignments and activities,and creating uncertainty about the length of their sentences. Id. at 449(quoting H.R. Rep. No. 1018, 91st Cong., 2d Sess. 3 (1970); S. Rep. No.1356, 91st Cong., 2d Sess. 3 (1970); United States v. Mauro, 436 U.S. 340,357, 359-360 (1978) (citing Council of State Governments, Suggested StateLegislation Program for 1957, at 74 (1956)); Carchman v. Nash, 473 U.S.716, 730 n.8 (1985) (cataloguing ill effects of detainers).
Article III(a) permits prisoners to avert those disadvantages by obtaininga prompt resolution of the charges underlying the detainer. See IAD, Art.I, 18 U.S.C. App. § 2, at 692 (purpose of Agreement is "to encouragethe expeditious and orderly disposition of [outstanding] charges and determinationof the proper status of any and all detainers based on untried indictments,informations, or complaints"); see also 116 Cong. Rec. 38,840 (1970)(Sen. Hruska notes during debates that "at the heart of this measureis the proposition that a person should be entitled to have criminal chargespending against him determined in expeditious fashion"). Because prisonerssubject to detainers are the primary intended beneficiaries of the IAD'sspeedy trial provisions,6 those provisions may be waived.7
B. A Defendant Waives The IAD's Speedy Trial Rights When He Or His CounselVoluntarily Takes Action That Is Inconsistent With An Assertion Of ThoseRights

1. The conditions under which a right may be waived largely depend on thenature of the right itself. United States v. Olano, 507 U.S. 725, 733 (1993).For a limited class of fundamental constitutional rights, such as the rightto be represented by counsel and the right to a jury trial, "the accusedhas the ultimate authority," and therefore the defendant must givepersonal and informed consent before a waiver is valid. Jones v. Barnes,463 U.S. 745, 751 (1983); Wainright v. Sykes, 433 U.S. 72, 93 n.1 (1977)(Burger, C.J., concurring); see Johnson v. Zerbst, 304 U.S. 458, 464 (1938)(waiver of right to counsel defined as an "intentional relinquishmentor abandonment of a known right or privilege").8
For other rights, however, defense counsel may make tactical decisions thatresult in waiver without securing or recording the defendant's personalinformed consent. "Almost without exception, the requirement of a knowingand intelligent waiver has been applied only to those rights which the Constitutionguarantees to a criminal defendant in order to preserve a fair trial."Schneckloth v. Bustamonte, 412 U.S. 218, 237 (1973). This Court thereforehas not required a "showing of conscious surrender of a known right* * * with respect to strategic and tactical decisions, even those withconstitutional implications, by a counseled accused." Estelle v. Williams,425 U.S. 501, 508 n.3 (1976); see also Taylor v. Illinois, 484 U.S. 400,418 (1988) ("The adversary process could not function effectively ifevery tactical decision required client approval."). Because it isa statutory right, an attorney may waive his client's rights under the IADwithout a showing that the defendant is aware of those rights.9
There also is no requirement that defense counsel must explicitly advertto IAD rights in order to waive them. As respondent concedes, waiver ofIAD rights occurs whenever the defendant or his counsel takes "an actexpressly or impliedly inconsistent with the provisions of the IAD."Br. in Opp. 2. See, e.g., Lawson, 736 F.2d at 840; Odom, 674 F.2d at 230.That conclusion comports with decisions from this Court finding a validwaiver of even constitutional rights based on defense conduct that is inconsistentwith those rights, notwithstanding the absence of an explicit referenceto the rights relinquished. See Ricketts v. Adamson, 483 U.S. 1, 9-12 (1987)(plea agreement that specifies that a charge will be reinstated if the defendantdeclines to testify at co-defendants' trial waived double jeopardy bar eventhough "double jeopardy" was not specifically waived by name inthe plea agreement); Insurance Corp. of Ireland v. Campagnie des Bauxitesde Guinee, 456 U.S. at 703 (party may waive due process right that courthave personal jurisdiction over it by "express or implied consent");United States v. Gagnon, 470 U.S. 522, 528-529 (1985) (per curiam) (defendant'sfailure to assert right under Fed. R. Crim. P. 43 to attend judge's conferencewith juror of which he was aware constitutes valid waiver of right, andtrial court need not get an express "on the record" waiver fromdefendant); see also North Carolina v. Butler, 441 U.S. 369, 373-376 (1979)(waiver of Miranda rights can be inferred from "the actions and wordsof the person interrogated"); Diaz v. United States, 223 U.S. 442,445 (1912) (defendant's voluntary absence from trial after trial began operatesas a waiver of his right to be present).
Similarly, a party's express or implied consent to governmental action oftenremoves any claim that the action violated the party's rights. See, e.g.,Peretz, 501 U.S. at 934-937 (party's consent to voir dire conducted by magistrateremoves any legal objection under Article III and Federal Magistrates Act,Pub. L. No. 90-578, 82 Stat. 1107); Estelle v. Williams, 425 U.S. at 512-514(no Fourteenth Amendment violation when defendant did not object to appearingat trial in prison clothes); Levine v. United States, 362 U.S. 610, 619(1960) (no due process violation when public was excluded from criminalcontempt proceedings when defendant did not request court to open the courtroom).

2. Applying those principles, respondent waived his speedy trial rightsunder the IAD when his counsel agreed that trial on a date after the 180-dayperiod would be "fine." Respondent concedes that a defendant waiveshis IAD rights when he acts in a manner inconsistent with the Act. Sincethe trial could not be held, consistent with the IAD's time limits, theconclusion is inescapable that respondent waived his IAD speedy trial rightsunder Article III(a).
Respondent seeks to avoid that result by arguing that his counsel's "acquiescence"to the May 1 trial date did not constitute an "express agreement"to hold the trial on that date. Br. in Opp. 1, 5-7. Instead, respondentargues, an agreement to a trial date beyond the IAD's limits constitutesan "express agreement," and thus a waiver, only if (1) defensecounsel "expressly requested" that date; or (2) the delay is "tothe benefit of the defendant." Id. at 3.
Although some cases interpreting the IAD have distinguished between a "request"by the defendant and an "acquiescence" by him,10 nothing in thisCourt's waiver jurisprudence supports that distinction. To the contrary,this Court has indicated that "legal rights generally, * * * are subjectto waiver by voluntary agreement of the parties." Mezzanatto, 513 U.S.at 203 (emphasis added). The hallmark of a voluntary agreement, of course,is an objective manifestation of the parties' mutual assent. See Restatement(Second) of Contracts §§ 3, 22 (1981); 1 Joseph M. Perillo, Corbinon Contracts §§ 1.9, 4.13 (1993). Once a party has manifestedhis assent, it does not matter who originally proposed the term agreed to.What is important is that he consented to that term.11
Not only does respondent's approach distort the ordinary meaning of theterm "agreement," but it would encourage misleading verbal gamesmanshipby defense counsel. Under respondent's approach, the validity of counsel'swaiver would turn on the precise phrasing of his agreement. If, for example,defense counsel said "I concur in the May 1 trial date," no waiverwould occur, but if he said "I concur in the request for a May 1 trialdate," his adoption of the request presumably would result in waiver.The result of criminal cases should not rest on such subtle semantic distinctions.12
Likewise without merit is respondent's contention (Br. in Opp. 3, 7) thata waiver occurs only if the delay to which defense counsel consented isshown to be for the defendant's benefit. Courts presume that defense counselassert or waive the defendant's rights based on a judgment about how bestto promote the defendant's interests. Tactical decisions by defense counselthus can bind the defendant whether or not there is a showing that theyactually benefit the defense. Reed v. Ross, 468 U.S. 1, 13 (1984) ("absentexceptional circumstances, a defendant is bound by the tactical decisionsof competent counsel"); Jones v. Barnes, 463 U.S. at 754 (judges shouldnot second guess reasonable professional judgments made by appellate counsel).The adversary system could not otherwise function. See Estelle v. Williams,425 U.S. at 512; Taylor v. Illinois, 484 U.S. at 417.
Accordingly, the prosecutor and trial court were entitled to infer fromthe statement of respondent's counsel, that a May 1 trial date would be"fine," that counsel had no legal objection to proceeding on thatschedule. There would have been no reason to question counsel's judgmentin agreeing to postpone trial, for, as this Court has observed, "[d]elayis not an uncommon defense tactic." Barker v. Wingo, 407 U.S. at 521.13

C. Policy Considerations Do Not Support The Court of Appeals' Waiver Standard

In holding that respondent's consent to the May 1 trial date did not effecta waiver under the IAD, the New York Court of Appeals reasoned that "itis the burden of the prosecutor and the court to comply with the IAD's speedytrial requirements." Pet. App. A8; see also id. at A6 ("[T]heIAD does not impose an obligation on defendants to alert the prosecutionor the court to their IAD speedy trial rights or to object to treatmentthat is inconsistent with those rights."). It is far from clear thatdefense counsel should be freed from any obligation to call to a court'sattention that it is on the brink of committing legal error, when a timelyobjection could easily permit the error to be cured. See United States v.Gagnon, 470 U.S. at 529. This is not a case, however, in which a defendantsimply failed to object to a trial date that the trial court unilaterallyscheduled.14 To the contrary, the trial judge convened a hearing in opencourt to solicit the parties' views on an appropriate date, and respondent'scounsel affirmatively consented to the date proposed by the court. Thus,even assuming the IAD places the duty of complying with the 180-day periodsolely on the government and the court, a defendant nonetheless waives theIAD's protections by affirmatively agreeing to a non-complying trial date.
The court of appeals' belief that the burden of statutory compliance fallson the court and prosecutor (Pet. App. A8) would not in any event supportthe distinction the court drew between delay "requested" by thedefense and delay in which counsel merely "acquiesced" or "concurred."Respondent concedes that he would have waived his rights under the IAD hadhe requested a trial date beyond the 180-day period. Br. in Opp. 3. Yetif a waiver when the defendant requests the delay would not "diminishthe statute's effectiveness and enforceability" (Pet. App. A7), thesame is true when the defendant agrees to the delay. In either situation,the defendant has voluntarily abandoned his right to a speedy trial in accordancewith the IAD by consenting to a trial period outside the 180-day period.
There is an additional fundamental reason for rejecting the court of appeals'analysis. An approach that allows a party to agree to a particular procedureand then seek reversal because the court carried out the agreement is inconsistentwith basic rules of fair- ness and "sound considerations of judicialeconomy." Thomas v. Arn, 474 U.S. 140, 147 (1985). A party may notengage in "sandbagging" by "suggesting or permitting, forstrategic reasons, that the trial court pursue a certain course, and later* * * claiming that the course followed was reversible error." Freytagv. Commissioner, 501 U.S. 868, 895 (1991) (Scalia, J., concurring); cf.City of Monterey v. Del Monte Dunes, 119 S. Ct. 1624, 1636 (1999) (partythat proposed "the essence of the instructions given to the jury ** * cannot now contend that the instructions did not provide an accuratestatement of the law").15
This case illustrates the deficiencies of the court of appeals' approach.As the trial court noted, "[h]ad counsel raised an objection to theproposed trial date, the court was in a position to set the date withinthe 180-day statutory period." Pet. App. A15. Similarly, had respondent'scounsel registered an objection at the January 9 hearing, the prosecutorcould have asked the court to grant a "necessary or reasonable continuance"for "good cause shown in open court." IAD, Art. III(a), 18 U.S.C.App. § 2, at 692. Instead, when respondent's counsel consented to thetrial date, its untimeliness went undetected by the court before the expirationof the 180-day period. Permitting a defendant to consent to a trial date,while reserving a timeliness objection until it is too late to cure it,is inconsistent with the defendant's "obligation to [bring his objection]to the court's attention so the trial judge will have an opportunity toremedy the situation." Estelle v. Williams, 425 U.S. at 508 n.3; UnitedStates v. Gagnon, 470 U.S. at 529; cf. Wainwright v. Sykes, 433 U.S. at89-90 (contemporaneous objection rule permits trial court to correct error,allows government to respond accordingly, and prevents defense lawyers from"sandbagging").
Finally, the decision below confers an unjustified windfall on a defendant.Respondent claims no actual prejudice to the fairness of his trial (or toany other interest) and cannot claim that a failure to hold trial withinthe IAD's 180-day period establishes a violation of his constitutional rights.See Reed v. Farley, 512 U.S. 339, 352 (1994) (rejecting claim that IAD violationis a violation of Sixth Amendment trial rights). While the IAD "insure[s]that both prosecution and defendant may, if they wish, have their day incourt on a prompt and timely basis," 116 Cong. Rec. at 38,840 (remarksof Sen. Hruska) (emphasis added), the IAD gives defendants "no greateropportunity to escape just convictions." Council of State Governments,supra, at 76-77; accord S. Rep. No. 1356, supra, at 2; H.R. Rep. 91-1018,supra, at 2. Here, the court of appeals ordered that the indictment formurder and robbery on which respondent was convicted be dismissed with prejudiceon the ground that the trial date, to which respondent freely consented,fell beyond the 180-day period. Neither the text, history, nor underlyingpurposes of the IAD justify permitting respondent to profit from participationin an "unwitting judicial slip" (Reed v. Farley, 512 U.S. at 349(plurality opinion)) after he specifically agreed to a trial date beyondthe statutory period.