Petition — Horton v. United States

—— —— —ä4——k— ee

In the

Supreme Court of the Anited States

Ocroser ‘Term, 1982

EDWARD LEE HORTON, a/k/a “CORNBREAD” HORTON

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

THOMAS F. LONDRIGAN

ALEXANDRA de SAINT PHALLE

LONDRIGAN & POTTER, P. C.

1227 South Seventh Street

Post Office Box 399

Springfield, IIlinois 62705

Telephone: 217/544-9823

CASEY & CASEY

Attorneys at Law

2020 Timberbrooke

Springfield, Illinois 62702

Te:ephone: 217/787-1536

Attorneys for Petitioner,

Kpwarp Lee Horton

—

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

QUESTIONS PRESENTED FOR REVIEW

1. May the Government, pursuant to §3161(h)(6) of

the Speedy Trial Act, deny a Defendant’s right to

thirty (30) days preparation time for trial on a valid in-

dictment under the Speedy Trial Act by seeking its own

dismissal of an invalid original indictment and substitut-

ing for it a barely sufficient’’ reindictment six (6) days

before trial, before the trial court rules on Defendant’s

outstanding motion to dismiss the original indictment?

2. Do §$3161(c), (d) and (h) of the Speedy Trial Act

guarantee a Defendant thirty (30) days preparation time

in the event of a reindictment or in the event of applicable

exclusions under §3161(h) as decided by the Ninth Cirenit

Court of Appeals in United States v. Arkus, 675 F.2d 245

(9th Cir. 1982) as opposed to the Seventh Cireuit's deci-

sion to the contrary in this case?

NAMES OF PARTIES

In addition to the Defendant, Edward Lee Horton, a/k/a

‘*Cornbread’’ Horton, and the Plaintiff, United States of

America, Bragster G. Horton was a defendant in the pro-

ceeding involved in the Seventh Cireuit Court of Appeals.

Bragster Horton has not joined in this Petition for Writ

of Certiorari.

TABLE OF CONTENTS

PAGE

Questions Presented for Revi i

r ᷑Üœ ...... i

, SEE Sea Cranes nT e ore iv

Citation To Opinions Belo k 1

r . ̃ĩ¾ 0 1

r ̃ : . a or 6

neee 6

2. Appellate Court Proceedings bid 10

Basis for Federal Jurisdiction in the Trial Court .. 11

I. Certiorari is warranted to clarify the conflicting

approaches taken by the Third and Seventh Cir-

cuits to construction of the Speedy Trial Act ...... 12

ll. Review is warrenied by this court in the exercise

of its supervisory role to prevent judicial

erosion of Congress’ mandate to allow a defen-

dant sufficient time to adequately prepare a

PSS ̃˙ . Se emo reeee 16

ill

PAGE

III. Review is warranted to resolve a direct conflict

between circuits on construction of the Speedy

Trial Act on whether the exclusions provided in

$3161(h) are applicable to the 30 day minimum

periods as well as to the 70 day maximum

r & ccclossidescdietsnesenstnicnninicaneisenseincdinie 20

TT 23

APPENDIX—

A Opinion of the Court of Appeals for the

Seventh Cireuit, April 29, 1982222 App. 1

B Judgment order on April 29, 1982 App. 25

C Order denying Petition for Rehearing and

Rehearing En Bane on July 21, 1982 ............ App. 27

D Order granting extension of time for filing ..

Petition for Writ of Certiorari ...................App. 29

iv

TABLE OF AUTHORITIES

Cases

PAGE

Perez v. United States, 402 U.S. 146 (1971) ................. 18

United States v. Arkus, 675 F.2d 245 (9th Cir.

TTT 10, 20, 21, 22

United States v. MacDonald, — U.S. —, 102 S. Ct. 1497,

e - 17

United States v. Rabb, 680 F.2d 294 (3rd Cir.

nnn ee 13, 14, 15

United States v. Lomasetta, 429 F.2d 978 (Ist Cir.

9«'‚çq—ñ—d 8

United States v. Wooten, #81-5166-81-268 (4th Cir.

c —————— 22

Statutes

xxx 4, 6

rr r 5, 6, 9, 11

IIc 6, 11

rr - 6

r sssinnsasioenianemenseiibiaemsansis 14

, A 2, 20

r ener 2, 16, 18, 20, 22

e -- - - 10

%% . 2, 13

?. . 20, 21, 22

L —— 3, 20

PAGE

BD DEA GROEN D cetcciinsictinmnitnan 3, 20

. 3

1 15

18 U.S.C. 83168 — 15

Other Authorities

Legislative History of Title 1 of the Speedy Trial Act

of 1974, A. Partridge (Federal Judicial Center

—— K 13, 19, 22

In the

Supreme Court of the United States

Ocrosen Terns, 1982

No.

EDWARD LEE HORTON, a/k/a “CORNBREAD” HORTON

Petitioner,

.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CITATION TO OPINIONS BELOW

The judgment on review was printed in a slip opinion

issued by the Seventh Cireuit Court of Appeals on April

29, 1982, and appears in the Federal Reporter at 676 F.2d

1165. No opinions by the Trial Court were published. The

Seventh Circuit’s Opinion is reprinted in the Appendix

to this Petition.

JURISDICTION

1. The date of entry of the judgment sought to be re-

viewed was April 29, 1982.

2. A rehearing and rehearing en bane were denied on

July 21, 1982. A Petition for Extension of Time to file a

Petition for Writ of Certiorari was granted by this Court

until and including October 19, 1982 on September 8, 1982.

3. There is statutory jurisdiction for this action pur-

suant to 28 U.S.C. §1254(1).

APPLICABLE STATUTES

Chapter 208—Speedy Trial

18 U.S.C.—Time Limits and Exclusions.

(c)(1) In any case in which a plea of not guilty is en-

tered, 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, which-

ever date last occurs. If a defendant consents in writing

to be tried before a magistrate on a complaint, the trial

shall commence within seventy days from the date of such

consent.

(c)(2) Unless the defendant consents in writing to the

contrary, the trial shall not commence less than thirty days

from the date on which the defendant first appears through

counsel or expressly waives counsel and elects to proceed

pro se.

(d)(1) If any indictment or information is dismissed

upon motion of the defendant, or any charge contained in

a complaint filed against an individual is dismissed or

otherwise dropped, and thereafter a complaint is filed

against such defendant or individual charging him with

the same offense or an offense based on the same conduct

or arising from the same criminal episode, or an informa-

tion or indictment is filed charging such defendant with

the same offense or an offense based on the same conduct

or arising from the same criminal episode, the provisions

of subsections (b) and (c) of this section shall be appli-

cable with respect to such subsequent complaint, indict-

ment, or information, as the case may be.

(h)(1) The following periods of delay shall be exclud-

ed in computing the time within which an information or

an indictment must be filed, or in computing the time with-

in which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceed-

ings concerning the defendant, including but not limited

to—

(F) delay resulting from any pretrial motion, from

the filing of the motion through the conclusion of the hear-

ing on, or other prompt disposition of, such motion;

(H) delay resulting from transportation of any defen-

dant from another district, or to and from places of exami-

nation or hospitalization, except that any time consumed

in excess of ten days from the date an order of removal

or an order directing such transportation, and the defen-

dant’s arrival at the destination shall be presumed to be

unreasonable.

(h)(6) If the information or indictment is dismissed

upon motion of the attorney for the Government and there-

after a charge is filed against the defendant for the same

4

offense, or any offense required to be joined with that

offense, any period of delay from the date the charge was

dismissed to the date the time limitation would commence

to run as to the subsequent charge had there been no pre-

vious charge.

Chapter 42 Extortionate Credit Transaction

18 U.S.C. §891—Definitions and Rules of Construction

For the purposes of this chapter:

(1) To extend credit means to make or renew any loan,

or to enter into any agreement, tacit or express, whereby

the repayment or satisfaction of any debt or claim, wheth-

er acknowledged or disputed, valid or invalid, and how-

ever arising, may or will be deferred.

(2) The term ‘‘creditor’’, with reference to any given

extension of credit, refers to any person making that ex-

tension of credit, or to any person claiming by, under, or

through any person making that extension of credit.

(3) The term ‘‘debtor’’, with reference to any given

extension of credit, refers to any person to whom that

extension of credit is made, or to any person who guaran-

tees the repayment of that extension of credit, or in any

manner undertakes to indemnify the creditor against loss

resulting from the failure of any person to whom that ex-

tension of credit is made to repay the same.

(4) The repayment of any extension of credit includes

the repayment, satisfaction, or discharge in whole or in

part of any debt or claim, acknowledged or disputed, valid

or invalid, resulting from or in connection with that exten-

sion of credit.

(5) To collect an extension of credit means to induce

in any way any person to make repayment thereof.

5

(6) An extortionate extension of credit is any exten-

sion of credit with respect to which it is the understanding

of the creditor and the debtor at the time it is made that

delay in making repayment or failure to make repayment

could result in the use of violence or other criminal means

to cause harm to the person, reputation, or property of

any person,

(7) An extortionate means is any means which involves

the use, or an express or implicit threat of use, of violence

or other criminal means to cause harm to the person, repu-

tation, or property of any person.

(8) The term ‘‘State’’ includes the District of Colum-

bia, the Commonwealth of Puerto Rico, and territories and

possessions of the United States.

(9) State law, including conflict of laws rules, govern-

ing the enforceability through civil judicial processes of

repayment of any extension of credit or the performance

of any promise given in consideration thereof shall be

judicially noticed. This paragraph does not impair any

authority which any court would otherwise have to take

judicial notice of any matter of State law.

18 U.S.C. 6894 Collection of Extensions of Credit by

Extortionate Means

(a) Whoever knowingly participates in any way, or

conspires to do so, in the use of any extortionate means

(1) to collect or attempt to collect any extension of

eredit, or

(2) to punish any person for the nonrepayment thereof,

shall be fined not more than $10,000 or imprisoned not

more than 20 vears, or both.

6

(b) In any prosecution under this section, for the pur-

pose of showing an implicit threat as a means of collection,

evidence may be introduced tending to show that one or

more extensions of credit by the creditor were, to the

knowledge of the person against whom the implicit threat

was alleged to have been made, collected or attempted to

be collected by extortionate means or that the nonrepay-

ment thereof was punished by extortionate means.

(c) In any prosecution under this section, if evidence

has been introduced tending to show the existence, at the

time the extension of credit in question was made, of the

circumstances described in section 892(b)(1) or the cir-

cumstances described in section 892(b)(2), and direct evi-

dence of the actual belief of the debtor as to the creditor’s

collection practices is not available, then for the purpose

of showing that words or other means of communication,

shown to have been employed as a means of collection, in

fact carried an express or implicit threat, the court may

in its discretion allow evidence to be introduced tending

to show the reputation of the defendant in any community

of which the person against whom the alleged threat was

made was a member at the time of the collection or at-

tempt at collection.

STATEMENT OF FACTS

1. Trial Court Proceedings.

Edward Horton was indicted with multiple offenses of

extortionate collection of credit in a 15 count indictment

filed September 24, 1980.“ Although involving six different

victims at four different times spanning several months,

' Specifically violations of the following U.S. criminal statutes

were alleged. 18 U.S.C. 88894. 924(¢), 1952(a)(2) and 891.

7

the indictment contained no names of any of the victims,

no location of any of the alleged crimes, nor any explanation

whatsoever regarding the extensions of credit involved in

the extortion offenses.’ At a bond reduction hearing held

two days later, the United States Attorney informed the

Court and Defendant that the alleged extensions of credit

involved in Counts I-VI related to a dispute over stolen

goods.

One other comment that I would advise the Court

as to the incident of July of 79 is that these two indi-

viduals were not unknown to Mr. Horton and to the

co-Defendants, the other associates who were there.

In fact, they had been business associates of Mr. Hor-

ton in the sense that the purpose of their trip to Mr.

Horton’s that day was to deliver stolen merchandise,

and they had done that in a—on previous occasions.

The argument about the debt and the amount owing

to Mr. Horton arose out of their relationship with Mr.

Horton in the disposing of stolen merchandise.“

(Tr. 9/26/80, p. 24) (Emphasis added)

However, at trial the Government contended that the

alleged extension of credit involved approximately seven

bad checks and approximately ten to fifteen others given

for the sale of heroin. The Supplemental Record filed by

the Government on Appeal in this case revealed that the

Government had knowledge of these checks and the sub-

ject matter for which they were given at least a month

prior to the indictment. (Motion to Supplement the Record

on Appeal, filed October 14, 1981)

During the pretrial proceedings, the Defendant was hos-

pitalized for thirty days at Springfield, Missouri, from

* For a representative sample of the Counts included in the indict

ment, see note I in Judge Swygert's dissent in the Seventh Circuit’.

opinion contained in the Appendix to this Petition at p. 18.

8

October 7 to November 7, 1980. On November 7, he was

returned to Springfield, Lllinois, but then was immediately

transferred by the Government to a jail in Danville, Illinois

(120 miles away from Springfield). On November 10, 1980,

the trial court denied a request by Defendant's counsel to

make him available to counsel in Springfield so that they

could prepare for the trial set for November 24, 1980.

In the meantime (Uctober 23 and Uctober 8, respective-

ly), Defendant’s counsel had filed a motion to dismiss the

indictment and a bill of particulars requesting the names

of the victims and the nature of the threats made. On

November 10, 1980, the Government provided Defendant

with the names of the victims involved but refused to pro-

vide any other information to specify what was the subject

matter, amounts or dates of the extensions of credit for

the offenses involved in the indictment. On November 14,

1980, hearings were held on Defendant’s Motion to Dis-

miss, his Motion for Continuance and on all other pending

motions. At that time, the trial court indicated that De-

fendant’s Motion to Dismiss the Indictment had consider-

able merit but declined to rule on the motion in order to

allow the Government an opportunity to try to find authori-

ties which would distinguish authorities relied on by De-

fendanc.*

The Government did try to find some authorities which

would meet Defendant’s objections based on the First

Cireuit’s decision in United States v. Tomasetta, 429 F.2d

978 (Ist Cir. 1970). (Government’s Memorandum in Op-

position to Defendant's Motion to Dismiss, filed November

18, 1980) But rather than risk an adverse ruling on De-

* Judge Swygert has reprinted the pertinent portions of the trial

judge's concern with the sufficiency of the indictment in his dissent

found at p. 19. note 2. of this Appendix.

9

fendant’s motion, the Government immediately procured

a new indictment and sought its own dismissal of the

original indictment stating inter alia that the ‘‘supersed-

ing indictments . . . serve only to provide more informa-

tion to each Defendant in the indietment.“ (Notice of Fil-

ing of Superseding Indictments, §19, filed November 19,

1980, Case No. 80-30062) The trial court granted the Gov-

ernment’s motion to dismiss the original indictment on

November 21, 1980, and declined to rule on Defendant’s

prior motion to dismiss the original indictment. On the

seme date, the Defendant was arraigned on the supersed-

ing indictment and the trial court again denied Defendant’s

motion for a continuance and renewed the trial setting for

November 24, 1980.“

On November 18 and 21, 1980, six and three days before

trial, the Government disclosed to the Defendant for the

first time the basis for its allegation of an extension of

credit. On those dates, the Government released to the

Defendant grand jury transcripts and copies of checks

written by the victims for heroin purchases. (Motion to

Supplement the Record filed by the Government in the

Seventh Circuit Court of Appeals) The only indication

given to the Defendant as to the nature of the extension

of eredit involved in the indictment at issue prior to that

time was the reference to ‘‘stolen merchandise’’ at the

bond reduction hearing. At trial, the Government conceded

that disputes over stolen merchandise did not qualify as

extensions of credit’? as defined by 18 U.S.C. 8894. and

* Several of the counts of the original indictment (Counts 7-15)

were split off into separate indictments in the superseding indict-

ments. Trial on these counts were deferred. Defendant was acquit-

ted on the Counts tried on a later date on which he and his counsel

had more time to prepare. No. 80-30063

10

relied solely on the bad checks for heroin purchases to

satisfy that jurisdictional prerequisite.

On November 24, 1980, Defendant again filed motions

for continuance based on the Speedy Trial Act and a mo-

tion to dismiss the superseding indictment. The trial court

denied both motions and proceeded immediately to trial.

At trial, the Defendant’s principal defense to the shooting

incident testified to by the two victims was that the reason

for the shooting was because the Defendant was upset at

the victims because they had allegedly stolen his washing

machine.“

2. Appellate Court Proceedings.

After briefs and oral arguments, the Seventh Circuit

released its opinion affirming Defendant’s conviction on

April 29, 1982, Judge Swygert dissenting. Defendant’s

counsel filed a Petition for Rehearing and Rehearing En

Banc based in large part on a contrary decision issued by

the Ninth Cireuit Court of Appeals in L wited States v.

Arkus, 675 F.2d 245, decided only six days prior to the

Seventh Cireuit's decision in this case. The Seventh Circuit

ordered the Government to file a responsive brief. The

United States Attorney’s office in Springfield referred

the matter to the Department of Justice in Washington

because of the conflicting Ninth Cireuit Court of Appeals’

decision. In its brief, the Department of Justice acknowl-

edged that it was partly responsible for the Arkus opinion

because it took a position in that case which conflicts with

the position taken in this case.

This is an abbreviated statement of facts of the shooting incident

because this Petition for Writ of Certiorari does not involve those

facts and the facts are recited in the Seventh Circuit's Opinion.

11

„We acknowledge that the government is partly to

blame for the confusing Arkus opinion. The govern-

ment there took a position that we now believe is un-

tenable and that conflicts with the position that we

are taking here. We have been authorized by the Office

of the Solicitor General to say that this brief aceu-

rately reflects the views of the Department of Justice.

(Brief For The United States In Response To Appel-

lants’ Petition For Rehearing, p. 13, fn. 8)

The Seventh Circuit denied the Petition for Rehearing

and Rehearing en Bane, with Judge Swygert dissenting

and Judge Harlington Wood not taking part in the pro-

ceedings.

BASIS FOR FEDERAL JURISDICTION

IN THE TRIAL COURT

Jurisdiction was asserted in the trial court for violation

of the federal offenses of 18 U.S.C. 88894 and 924(c).

I

CERTIORARI IS WARRANTED TO CLARIFY THE

CONFLICTING APPROACHES TAKEN BY THE

THIRD AND SEVENTH CIRCUITS TO CONSTRUC-

TION OF THE SPEEDY TRIAL ACT.

This case calls for this Court’s intervention to clarify

conflicting approaches to construction of the Speedy Trial

Act and to make that construction consistent with the

flexible interpretation requested by both houses of Con-

gress. In 1979, Congress expressed repeated concern that

the Speedy Trial Act was being interpreted in ‘‘an un-

necessarily stringent manner’’.

„The Committee is troubled to find evidence which

suggests that, not only is the Act being interpreted to

deny it most of its inherent flexibility, it remains prac-

tically ‘noninterpreted.’

The point of that example is that the principal actors

in the Federal criminal justice system are, for a va-

riety of reasons, interpreting those provisions of the

Act in an unnecessarily inflexible manner.

% ** *

. . « Neither hostility toward the Act nor fear of the

consequences is a justifiable basis for interpretation

which is so strict as to deny the spirit of it as well as

its letter in application.

& * *

The Committee must stress, at this juncture, that no

amendment short of repeal and no amount of inter-

pretive language could conceivably meet every objec-

tion and solve every problem arising from the Act’s

13

application in a practical setting. To attempt to do

so would so construct the Act as to hamstring its in-

herent flexibility and defeat its principal aims as a

consequence. While the Administrative Office has

demonstrated diligence and good faith in its efforts

to guide the districts toward u reasonable application

of the Act in practice, the Committee finds that, too

often, the Administrative Office has erred on the side

of caution. Legislative History of Title I of the Speedy

Trial Act of 1974, A. Partridge, pp. 111-112. (Empha-

sis added)

The Seventh Cireuit's mechanistic construction of the

Speedy Trial Act prevents application of §3161(d)(1) of

the Act where the indictment was tactically dismissed on

the Government’s motion.“ In reality the dismissal was

attributable to the Defendant’s motion to dismiss an in-

valid indictment which did not inform the Defendant or

his counsel of the nature of the charges against him. Judi-

cial approval of a tactic of re-indictment designed to pre-

vent adequate preparation for trial is directly contrary

not only to congressional intent that the spirit rather than

the letter of the Act be followed, but also to the Third Cir-

cuit’s recent opinion in United States v. Rabb, 680 F.2d

294 (3rd Cir. 1982), mandating a common sense practical

interpretation to the Act.

The particular finding of the Seventh Circuit Majority was

as follows:

In this case, although Cornbread filed his motion before the

government filed a superseding indictment and moved to dis-

miss the original indictment, the trial judge never decided Corn-

hread's motion. While we note that the trial judge indicated

some preliminary doubts as to whether the original indictment

was sufficient. we decline to speculate as to how the motion

would have ultimately been resolved. Accordingly, the original

indictment was not dismissed on the defendant's motion and.

thus. § 3161(d)(1) is not applicable.

14

The Third Cireuit's decision in United States v. Rabb,

680 F.2d 294 (3rd Cir. 1982), is diametrically opposed to the

Seventh Circuit’s decision in this case. In Rabb, the Gov-

ernment obtained a superseding indictment because of a

technical defect in the original indictment.’ The Defendant

then moved to dismiss the superseding indictment because

it was not brought within the mandatory thirty (30) day

period allowed between arrest and indictment set forth in

$3161(b) of the Speedy Trial Act. The Third Cireuit Court

of Appeals, rather than woodenly applying the provisions

of the Speedy Trial Act as the Seventh Circuit did in this

case, analyzed the purpose of the specific provision of the

Act at issue.

Viewed in light of its purpose in the statutory

scheme and with ‘an eye to the surrounding statutory

landscape, United States v. Bass, 404 U.S. 336, 344

92 S.Ct. 515, 521, 30 L.Ed.2d 488 (1971), we conclude

that appellee’s reading of §$3161(b), although literally

correct, is unsound, and that the August 10 indictment

met the requirements of £3161(b). United States v.

Rabb, 680 F.2d 294, 296 (3rd Cir. 1982) (Emphasis

added)

In Rabb, the Third Circuit specifically took on the task

of evaluating the sufficiency of the original indictment to

determine whether or not the defendant was unfairly

prejudiced by the delay from the original arrest to re-

indictment. Only after making specific findings that the

original indictment was sufficiently detailed to inform the

defendant of the eract nature of the charges he would have

to defend against and that it was returned by an indepen-

The defect was that the Grand Jury’s term had expired prior to

the return of the indictment and the United States Attorney had

neglected to obtain an order extending its term.

15

dent body based on a finding of probable cause, the Third

Circuit held

‘*. . that in the absence of bad faith on the part

of the government or prejudice to the defendant, an

indictment returned by a grand jury whose term has

expired is sufficient to toll Speedy Trial Act § 3161(b)

if it is followed by a valid indictment, identical in all

material respects.’’ United States v. Rabb, 680 F.2d

294, 297 (3rd Cir. 1982)

Here the Seventh Circuit specifically declined to examine

the validity of the original indictment, notwithstanding

material differences between the two indictments, prejudice

to the Defendant and Government bad faith in misleading

defendant as to the nature of the charges.

The only distinction between the substantive evaluation

and statutory construction of the Speedy Trial Act em-

ployed in Rabb and the Seventh Cireuit’s mechanistic ap-

proach employed in this case is that in Rabb the substan-

tive evaluation to statutory construction was urged on

behalf of the Government while here it is urged on behalf

of the Defendant. Surely this Court in its supervisory role

in the uniform administration of the federal criminal jus-

tice system, and as the final national arbiter of federal

law, cannot allow such a distinction to stand.

Clarification of the proper approach that is to be used

in statutory construction of the Speedy Trial Act is im-

perative at this time to guide the Courts of Appeal in

their construction of the Act. The mandatory dismissal

sections of the Speedy Trial Act, 18 U.S.C. $3162 only

became effective to indictments filed after July 1, 1980.

(18 U.S.C. 83163) This means that the Cireuit Courts of

Appeal are just beginning to be faced with what will surely

be an avalanche of litigation regarding construction of the

16

Act. The question of whether a purely literal approach or

an informed construction is to be given to the Speedy Trial

Act will have to be faced repeatedly in the very near fu-

ture. This Court’s guidance is urgently needed, not only

to clarify the conflict between the Third and Seventh Cir-

cuits’ approaches to construction of the Act, but also to

forestall a crazy quilt of conflicting approaches by all the

Cireuit Courts of Appeal in the near future.

The diametrically opposed positions taken by the Third

and Seventh Circuits highlight the urgent need for this

Court to fill the judicial vacuum noted by Congress in con-

struction of the Act so that there can be an effective and

consistent approach taken by the lower courts in con-

struing the Act.

II.

REVIEW IS WARRANTED BY THIS COURT IN THE

EXERCISE OF ITS SUPERVISORY ROLE TO PRE-

VENT JUDICIAL EROSION ON CONGRESS’ MAN.

DATE TO ALLOW A DEFENDANT SUFFICIENT

TIME TO ADEQUATELY PREPARE A DEFENSE.

This case also cries out for judicial review to prevent

the Seventh Cireuit's decision in this case from becoming

a license to the Government to subvert Congress’ express

intent to allow a defendant additional time to prepare a

defense where the Government has prepared an invalid

indictment. The express wording of §§3161(d) and 3161

(c)(2) of the Speedy Trial Act is dispositive of Congress’

intent to provide thirty (30) additional days to prepare

for trial where an indictment is dismissed on motion of

defendant. However, the result reached in this case is

directly contrary to this express legislative intent and to

the clear implication of this Court’s recent decision in

17

United States v. MacDonald, ........ | = , 102 S. Ct.

1497, 71 L.Ed.2d 696, n. 12 (1982), that the Government

may not dismiss and later reinstitute charges to evade the

Speedy Trial Guara

Here the Government, now with the Seventh Cireuit

Court of Appeal’s imprimatur, did precisely what was

condemned in MacDonald. It sought dismissal of the origi-

nal indictment and reinstituted new charges solely to

avoid the mandate of the Speedy Trial Act guaranteeing a

defendant the right to an additional period of preparation

in the event of an invalid indictment or other matters

mandating dismissal of the original indictment. The con-

duct of the Government in this case was, as Judge Swygert

points out, deplorable. The Government requested the

trial court to defer ruling on Defendant’s motion to dis-

miss while it allegedly sought to find authorities which

would support the original indictment. (Tr. 11/14/80, p.

40) Instead it sought a new indictment to provide more

information to each Defendant’’ thereby conceding the in-

validity of the original indictment." Until six days before

trial, the Government concealed from the Defendant the

exsential element of the offense that the crime charged re-

lated to bad checks and nonrepayment of heroin debts.

Until that time, the Government had affirmatively misled

the Defendant into believing that the charges related to

a dispute over stolen merchandise — not only was that a

completely different crime from that which was alleged on

the superseding indictment, but also it would not even be

subject to federal jurisdiction as lacking the essential ele-

This was further compounded by the Government's arguing that

the validity of the original indictment was moot due to the fact it

claimed that the deficiencies of the original indictment were now

supplied in the superseding indictment.

18

ment of an extension of credit. Perez v. United States, 402

U.S. 146 (1971) At trial, the Defendant’s whole defense

was to contend that the shooting related to Defendant’s

dismay at the victims having stolen his washing machine.

His attorney was taken by complete surprise by the new

allegations of bad checks and narcotics transactions.

They changed the indictment now. They didn’t

give me a date when this transaction took place, when

the credit was extended. They say the exact date un-

known. They are saying there was a transaction in-

volving narcotics. I haven’t had any time since get-

ting this indictment to discuss this with my client to

find out if there’s any truth to this particular indict-

ment at all, and to what his particular defense would

be. I am expected to go to trial Monday morning on

this, and I—-I just think that’s grossly unfair. I won't

have any chance to investigate whether he has alibi

witnesses for these particular offenses, what he’s talk-

ing about, whether there was any extension of credit

at that time or not. It—it’s just—it’s inconceivable

that they would want us to go to trial on such short

notice and take it up. (Tr. 11/21/80, pp. 37-38)

This case i mands exercise of this Court’s supervisory

responsibilities to prevent wholesale erosion of the Con-

gress’ intent in amending the Speedy Trial Act in 1979 to

ensure adequate preparation time for trial. Allowance of

the majority’s decision of the Seventh Circuit to stand in

this case authorizes the Government to file patently invalid

indictments with no essentials of the offense and then sub-

stitute valid indictments for them on the eve of trial. This

completely nullifies Congress’ intent in making the amend-

ments to the Speedy Trial Act in 1979 which added

$3161(¢c)(2) to the Act. This section specifies that a

defendant may not be forced to trial within less than

thirty (30) days without his consent. This concern for

19

allowing a defendant adequate time to prepare his defense

was reiterated over and over again in the Legislative His-

tory of the Act in both houses of Congress.

It is in recognition of the special problems often

faced by defense counsel that the Department has in-

eluded a provision in its bill requiring a minimum of

30 days for defense preparation. This insures the de-

fendant of some minimum preparation time even in

the simplest case.

Both bills provide that trials cannot begin within 30

days unless the defendant consents. This provision is

designed to give a defendant at least 30 days to pre-

pare for trial and would prohibit a trial judge from

setting a trial before that time.

Other major areas of importance to all parties upon

which agreement has been reached and which are in-

cluded in the consensus substitute are as follows:

(2) guaranteeing the defendant a reasonable pe-

riod in which to obtain counsel and prepare for

trial—30 days from the date the defendant ap-

pears through counsel or elects to proceed pro se,

unless the defendant waives the right conferred

83161) ( ))

Prohibiting trial less than 30 days after the date the

defendant appears in a position to begin preparing

his defense more fully protects basie due process

rights. Legislative History of Title I of the Speedy

Trial Act of 1974, A. Partridge, pp. 71, 72, 73.

The Seventh Cireuit’s majority opinion authorizing the

Government to subvert a defendant’s preparation time

by filing superseding indictments immediately before trial

emasenlates Congress" expressed concern for adequate

20

preparation time for trial and results in a blatant trans-

gression of the Congressional purpose in adding $3161

(e) (2) to the Speedy Trial Act in 1979.

III.

REVIEW IS WARRANTED TO RESOLVE A DIRECT

CONFLICT BETWEEN CIRCUITS ON CONSTRUC-

TION OF THE SPEEDY TRIAL ACT ON WHETHER

THE EXCLUSIONS PROVIDED IN §3161(h) ARE AP-

PLICABLE TO THE 30 DAY MINIMUM PERIOD AS

WELL AS TO THE 70 DAY MAXIMUM PERIOD OF

§3161(c).

The Seventh Circuit Court of Appeals and the Ninth

Cireuit Court of Appeals have come to diametrically op-

posed positions on the question of whether the exclusion

periods provided in 53161 ch) of the Speedy Trial Act,

18 U.S.C. §3161(h), are applicable to the thirty (30) day

minimum trial preparation period set forth in §3161(c¢) (2)

of the Act as well as to the seventy (70) day maximum

indictment to trial limitation set forth in §3161(c)(1) of

the Act. In this case, the Seventh Circuit determined that

neither the Defendant’s applicable exclusions under §3161

(h) nor the fact of reindictment was sufficient to toll the

minimum thirty (30) day preparation period provided by

$3161(c)(2) of the Speedy Trial Act.’ However, in United

According to the provisions of §3161(h), Defendant had at least

two exclusions which were applicable to him in determining the maxi-

mum seventy (70) day limitation period under §$3161(c)(1). De-

fendant’s thirty (30) day hospitalization was excludable under

§3161(h)(1)(H) and an additional fourteen (14) days, during

which the trial court held the Defendant's motion to dismiss under

advisement. was excludable ander §3161(h)(1)(F). Therefore.

there were only sixteen (16) days of nonexcludable time between

the time of the Defendant's first appearance with counsel on Sep-

tember 25, 1980 and the time of trial on November 24. 1980.

21

States v. Arkus, 675 F.2d 245 (9th Cir. 1982) the Ninth

Cireuit Court of Appeals ca, e to precisely the opposite

conclusion.

It [the Government] argues also that Arkus’ trial

began at the earliest possible time because it could

not begin after reindictment for 30 days, absent an

express waiver. 18 U.S.C. §3161(c)(2) (Supp. III

1979). Because we agree with the latter contention,

we need not address what constitutes an ‘essential

witness.’

* 7 *

In the case of a reindictment, a defendant may in

fact need less time to prepare his defense because

some preparation was undertaken before the original

indictment was dismissed. Nevertheless, given that

the period between dismissal of the original indict-

ment and reindictment may be considerable, we be-

lieve Congress intended that the 30-day period apply

also in cases of reindictment, United States v. Arkus,

675 F.2d 245, 247-8 (9th Cir. 1982) (Emphasis added)

The Arkus opinion also decided that the thirty (30) day

minimum preparation time was also equally applicable to

other exclusion periods provided in 83161 (h). In making

this conclusion, the Ninth Circuit relied on the explicit

Legislative History of the Act.

„See note 3 supra. The Senate Committee Report

accompanying the amendments adding the 30 day pro-

vision states:

It is the Committce’s intent that the exclusions

provided in Section 3161(h) apply to the 30-day

minimum to-trial provision. Therefore, if an event

occurs which would automatically exclude time

under subsection (h).. . that time is not only

excluded from computing the time within which

the trial must oceur . . . but time would also auto-

22

matically be excluded in computing the 30-day

minimum period of time, during which the judge

could not schedule trial without the defendant’s

consent.

A. Partridge, Legislative History of Title I of the

Speedy Trial Act of 1974, at 73-74 (1980). United

States v. Arkus, 675 F.2d 245, 248 (9th Cir. 1982)

(Emphasis added)

Review by certiorari is the only way to clarify this im-

portant conflict in application of the Speedy Triai Act. As

the Arkus case indicates, the issue appears both in cases

in which a defendant is seeking a continuance and in which

he is alleging violation of his right to a speedy trial. Trial

courts throughout the country are placed at the horns of

a dilemma: if they follow the Ninth Circuit's decision en-

suring that a defendant has thirty (30) days preparation

for trial, they will automatically be in violation of the Sev-

enth Cireuit’s determination that a defendant must be

brought to trial within seventy (70) days of an original

indictment. This can only create judicial chaos in the

ubiquitous speedy trial issues that are now appearing in

the lower Courts.“ Certiorari is warranted to clarify this

fundamental difference between cireuits.

Another sign of the burgeoning conflict is the Fourth Circuit's

very recent decision in United States v. Wooten, =81-5266-81-5268,

decided September 3, 1982. There the Fourth Circuit decided ex-

clusions provided in §3161(h) of the Act were not applicable to the

minimum thirty (30) day preparation period set forth in §3161

(c)(2) notwithstanding the contrary legislative history and the

Ninth Circuit's opinion in United States v. Artus. 675 F.2d 245

(9h Cir. 1982).

23

CONCLUSION

The Seventh Circuit’s majority opinion rendered in this

case manifests a blatent erosion of Congress’ intent to

provide a defendant with adequate preparation time for

trial. It is inconsistent with the Third Cireuit Court of

Appeals construction of the Speedy Trial Act and with

that of the Ninth Cireuit Court of Appeals. Review by

this Court is warranted to clarify these inconsistencies and

for all of the reasons stated herein. The defendant

respectfully requests that this Court grant certiorari to

review these important issues.

Respectfully submitted,

ALEXANDRA DE Saint PHALLE

Lonprigan & Porter, P.C.

1227 South Seventh Street

Post Office Box 399

Springfield, Illinois 62705

Telephone: 217/544-9823

Casey & Casey

Attorneys at Law

2020 Timberbrooke

Springfield, Illinois 62702

Telephone: 217/787-1536

Attorneys for Petitioner,

Edward Lee Horton