Petitioners Brief — United States v. Rojas-Contreras
Supreme Court brief1985
Ask Donna
What actually matters in this document.
Text
‘Olficg Supreme Court, Us
FILES WD «
CO) | wre
i. STEVAS,
OCTOBER TERM, 1984
UNITED STATES OF AMERICA, PETITIONER
Vv,
FERNANDO ROJAS-CONTRERAS
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
Rex EB. LEE
Solicitor General
STEPHEN 8S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
JOSHUA I. SCHWARTZ
Assistant to the Solicitor General
PATTY MERKAMP STEMLER
Attorney
Department of Justice
Washington, D.C. 20530
(202) 633-2217
QUESTIONS PRESENTED
1. Whether the defense preparation period provision
of the Speedy Trial Act, 18 U.S.C. 3161(c) (2), prohibits
commencement of trial within 30 days of a defendant’s
arraignment on a superseding indictment when a defense
preparation period of 30 days has already been allowed
following arraignment on the original indictment.
2. Whether, in the circumstances of this case, any
violation of Section 3161(c) (2) was harmless.
(1)
TABLE OF CONTENTS
EE TEES ONE DOT TT RT
i ET TATE TI aN ee a OD ET
Statute involved ............. Po Ba So 9k HI OE ER A SO
Introduction and summary of argument .......................
Argument:
I. The Speedy Trial Act does not forbid commence-
ment of trial sooner than 30 days following a
defendant’s arraignment on a superseding in-
I ta lich cacti dinniadibiabdibilininbineeestininen
A.
II. In
The language and structure of pertinent pro-
visions of the Act confirm that return of a
superseding indictment does not automati-
cally trigger a new defense preparation
IIIT scinibieladiiidccrinmpietiiaiiniteicebmnieanahapiniantetacniaietentinn
. The legislative history of Section 3161 (c) (2)
indicates that an automatic 30-day postpone-
ment of trial following a superseding indict-
ment was not intended _.......... iataloiediiiiseiainlaaiin
Practical considerations also argue against
extension of Section 3161(c) (2) to supersed-
IE SS ee SR
the circumstances of this case, any violation
of Section 3161(c) (2) was harmless error........
EE ee eT a a a a
Cases:
TABLE OF AUTHORITIES
Albernaz Vv. United States, 450 U.S. 333 _.....000..
Avery V. Alabama, 308 U.S. 444 0.000000...
(IIT)
13
13
21
39
as
IV
Cases—Continued : Page
Ball v. United States, No. 84-5004 (Mar. 26, 1985) .. 8
Callanan Vv. United States, 364 U.S. 587 ................. 40
Chambers v. Maroney, 399 U.S. 42 ....................---... 44
Perrin v. United States, 444 U.S. 87 ........................ 13
Russello vy. United States, No. 84-472 (Nov. 1,
PR SR I BIE ee a 13
United States v. Allen, 596 F.2d 227, cert. denied,
RRS IRS SN. SNR Ae ee 47
United States v. Anderton, 752 F.2d 1005 _............ 41
United States v. Arkus, 675 F.2d 245 _.......... 5, 6, 7, 9, 16,
17, 18, 32
United States v. Aviles, 623 F.2d 1192 .................... 21
United States v. Bounos, 730 F.2d 468 _........... 15
United States v. Buble, 440 F.2d 405, cert. denied,
I I i 47
United States v. Burton, 584 F.2d 485, cert. denied,
| Rrra eee a eee a 21
United States v. Cochran, 697 F.2d 600 .................. 47
United States v. Cronic, No. 82-660 (May 14,
RARER PERSP SS IP OLA SRA eRe een SO 43, 44
United States yv. Daly, 716 F.2d 1499 _........... 7, 36, 42, 44
United States v. Darby, 744 F.2d 1508, petition for
cert. pending, No. 84-1261 .................................... 13
United States v. Dawson, 516 F.2d 796, cert. de-
ie 47
United States vy. Dennis, 625 F.2d 782 ........0000000... 16
United States v. Guzman, 754 F.2d 482, petition
for cert. pending, No. 84-1604 0000. 9, 32, 37, 38
United States v. Harris, 724 F.2d 1452 7, 16,17
United States v. Hasting, 461 U.S. 499 0.000... 40
United States v. Horton, 676 F.2d 1165, cert. de-
re a ceed 6, 9, 32
United States v. MacDonald, 456 U.S. 1 -.............. 15
United States v. Mastrangelo, 733 F.2d 793 _.......... 8
United States v. Naftalin, 441 U.S. 768 14
United States v. Powell, No. 83-1307 (Dec. 10,
RSE SRR Fe ER eS oh teh es 36
United States v. Richmond, 735 F.2d 208 ___.. “aaa 18
United States v. Rodriguez-Restrepo, 680 F.2d
ERT eee! MIGROS ERTS OE. cecabicanaddaisias 15
Vv
Cases—Continued : Page
United States v. Rush, 738 F.2d 497, cert. denied,
No. 84-685 (Feb. 25, 1985) ............................... 9, 16, 33
United States v. Todisco, 667 F.2d 255, cert. de-
EE Ee a 9, 21
United States v. Turkette, 452 U.S. 576 -................. 13
United States v. Ward, 676 F.2d 94, cert. denied,
(EIT anne SSE + Sy SR ae 47
United States v. Williford, No. 83-1376, cert. de-
nied, No. 83-6814 (Oct. 9, 1984) _...................... 9, 33-34
United States v. Wooten, 688 F.2d 941 _................ 8
United States v. Wright, 573 F.2d 681, cert. de-
NEES = eR Or 47
Constitution, statutes and rule:
a 22
Speedy Trial Act of 1974, Tit. I, 18 U.S.C. 3161
ESE RE PD ee RO OO 8, 22
LS TTT LORE RR LP 31
EL aD Re ee PN la
18 U.S.C. (1976 ed.) 3161(b) _.......................... 23
NE ee 41,la
18 U.S.C. (1976 ed.) 3161(c) _....... etre Poe aw 22, 23
EE a eT LE I em 42
18 U.S.C. 3161 (c) (1) .....8, 17, 18, 20, 23, 34, 40, 41, la
I i asteebeeieatl passim
5 | Sener 10, 14, 15, 2a
ERLE Rra er or eee 14, 2a
TR ASI Se PY me RCRD 14, 3a
rN NRC ay ROH 24
ELE = Er 17, 18, 3a
Si ER Ee 18
S| aan Cnn en Sma 8
| ean 18
Lt | | eee: 10, 14, 15, 3a
LT eR 32
18 U.S.C. (1976 ed.) 3161 (h) (8) ee. 24
nc cecccerees 19, 20, 29, 4a
TS | eee 4a
re accmmesceniue 4a
18 U.S.C. 3161 (h) (8) (B) (i) o-oo. 4a
18 U.S.C. 3161 (h) (8) (B) (ii) -... ee... 4a
Constitution, statutes and rule—Continued : Page Misner, The 1979 Amendments to the Speedy Trial
Act: Death of the Planning Process, 32 Hast-
See FF | 9
VI VII
Miscellaneous—Continued : Page
18 U.S.C. 3161 (h) (8) (B) (iii) eee. 5a
18 U.S.C. 3161 (h) (8) (B) (iv) ......... 10, 19, 20, 21, 34
fe SL 5 DDE te 5a
i EL ee ee 41
BP I ND | incecrcescececsmecccsscceicwosnal 40, 41, 5a
18 U.S.C. 3162(a) (2) ....................... 18, 36, 40, 41, 6a
i tn 41
18 U.S.C. (1976 ed.) 3163(c) 2.00000... 24
NE EY i NC 41
ee eee 16
8 U.S.C. 1825 ...... TET ALES. «gM 0 Os RCRA AR ee OR bd 2,3
CP ALR I Rad oe ON eee Ieee 3
i 44
i -— 40
I a enue meee, 40
Miscellaneous:
Comm. on the Administration of the Criminal Law
of the Judicial Conference of the United States,
Guidelines to the Administration of the Speedy
Trial Act of 1974, as Amended:
(rev. 1979, with amendments through Aug.
I cletidaitdhtibcacliensticddtalicigiiiacaddeiaeseneiasettie ie ae nee 16
(rev. 1979, with amendments through Oct.
NI Nee ee 8-9, 16, 42
125 Cong. Rec. (1979) :
I sealants 30
TRS TS TS SOR I 24
I 30
H.R. Rep. 93-1508, 93d Cong., 2d Sess. (1974)... 22, 23,
24
H.R. Rep. 96-390, 96th Cong., 1st Sess. (1979) .... 20, 27,
28, 29
Second Circuit Judicial Council Speedy Trial Act
Coordinating Comm., Guidelines Under the
Speedy Trial Act (Jan. 16, 1979), reprinted in
The Speedy Trial Act Amendments of 1979:
Hearings on S. 961 and S. 1028 Before the Sen-
ate Comm. on the Judiciary, 96th Cong., 1st
TIE ‘Giitiaibieitenseetidiidiicknceicedeie 24
Proposed Amendments to the Speedy Trial Act of
1974: Hearings Before the Subcomm. on Crime
of the House Comm. on the Judiciary, 96th
ee 24, 29, 30
S. 961, 96th Cong., lst Sess. (1979) -....................-. 27
S. 1028, 96th Cong., Ist Sess. (1979) -..................... 27
S. Rep. 93-1021, 93d Cong., 2d Sess. (1974) ............ 22
S. Rep. 96-212, 96th Cong., 1st Sess. (1979) ..9, 20, 27, o
30, 31
Speedy Trial: Hearings on S. 754 Before the Sub-
comm. on Constitutional Rights of the Senate
Comm. on the Judiciary, 93d Cong., 1st Sess.
I cciccseniensisiinindinttatinleiiinnleibiinnieniaditibaiinennnngnintaine 23
Speedy Trial Act of 1974: Hearings on S. 754,
H.R. 7873, H.R. 207, H.R. 658, H.R. 687, H.R.
773 and H.R. 4807 Before the Subcomm. on
Crime of the House Comm. on the Judiciary,
fo SS foe 23
The Speedy Trial Act Amendments of 1979:
Hearings on S. 961 and S. 1028 Before the Sen-
ate Comm. on the Judiciary, 96th Cong., 1st
i Sn 24, 25, 26, 27, 29, 30, 42
Webster’s Third New International Dictionary
SIP UIEIAEE cikishcocindsslinpraiteabheuideamdsignptandsanbinentnetabititiipadaine 13
In the Supreme Court of the United States
OCTOBER TERM, 1984
No. 84-1023
UNITED STATES OF AMERICA, PETITIONER
Vv.
FERNANDO ROJAS-CONTRERAS
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-2a)
is unreported. The district court’s oral ruling denying
respondent’s motion for a continuance (Pet. App. 3a-4a)
likewise is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
March 2, 1984. A timely petition for rehearing was
denied on September 26, 1984 (see Pet. App. 5a). On
November 17, 1984, Justice Rehnquist extended the time
within which to file a petition for a writ of certiorari to
and including December 26, 1984. The petition for a writ
(1)
2
of certiorari was filed on December 26, 1984, and was
granted on February 19, 1985. The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).
STATUTE INVOLVED
The Speedy Trial Act provides in pertinent part (18
U.S.C. 3161(¢) (2)):
Uniess the defendant consents in writing to the con-
trary, 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.
Additivnal provisions of the Act that are referenced in
the text are reproduced in the appendix to this brief.
STATEMENT
Following a jury trial in the United States District
Court for the Southern District of California, respondent,
a Mexican citizen, was convicted of illegal entry into the
United States having been convicted previously of the
same offense, in violation of 8 U.S.C. 1325. He was
sentenced to a term of imprisonment of one year and
one day. The court of appeals reversed respondent’s con-
viction on Speedy Trial Act grounds.
1. The evidence at trial showed that respondent is a
citizen of Mexico and not a United States citizen. On
December 7, 1981, respondent was convicted of illegal
entry into the United States and was sentenced to one
year’s imprisonment. After serving his sentence, he was
returned to Mexico (Tr. 256-257).
Thereafter, at approximately 4:00 a.m. on February
13, 1983, respondent entered the United States on foot,
five miles east of the Chula Vista official port of entry.
He carried no immigration documents with him. Re
spondent walked north along a flat mesa, crossed the
Otay River, and stopped to rest on the southwest bank
of Otay Lake. At 9:30 a.m., Border Patrol Agent Wil-
3
liam Harris found respondent and another alien sitting
along the bank. Five other aliens were hiding nearby
under a sheet of plastic. Each member of the group had
muddy shoes and grass and straw in his hair, indicating
that the group had just hiked from the border. Agent
Harris asked the group if they were from Mexico, to
which they replied, “yes.” Tr. 156-166, 181, 186-192,
262.
Agent William Burt then arrived at the scene and
recognized respondent as someone he had arrested before.
Respondent was taken to the Brown Field Station and,
after waiving his Miranda rights, agreed to talk to
Agent Burt. Respondent identified himself as “Santiago
Montano Meneses.”’ He admitted that he had entered the
United States that morning five miles east of the official
port of entry and that he carried no documents entitling
him to enter the United States. He further admitted
that he had a prior arrest record for illegal entry. Re-
spondent signed a voluntary departure form acknowl-
edging that “I am illegally in the United States.” Tr.
189-193, 209-217.
That night, after again waiving his Miranda rights,
respondent told Border Patrol Agent Ted Stark that his
name was in fact Fernando Rojas-Contreras, and that he
had previously been convicted of and had served time for
illegal entry. He also acknowledged that he had been
sent back to Mexico upon his release from prison and
that he had reentered the United States through the
hills south of Otay Lake early that morning. Tr. 259-
265.
2. On February 18, 1983, a federal grand jury sitting
in the Southern District of California returned a two-
count indictment charging respondent with felony illegal
entry, in violation of 8 U.S.C. 1325, and reentry by a
deported alien, in violation of 8 U.S.C. 1326. The in-
dictment stated that the judgment of conviction for the
prior illegal entry, which formed the predicate for en-
hancement of the Section 1325 offense to a felony, was
4
“rendered on or about December 17, 1981” (E.R. 4)."
Respondent was arraigned on the two-count indictment
on February 18, 1983. Trial was thereafter scheduled
for April 19, 1984.
The date of the predicate conviction (actually Decem-
ber 7, 1981) was misstated by ten days in the February
18 indictment as a result of a typographical error (Tr.
15). It is undisputed that, on March 21, 1983, the re-
spondent was provided with discovery by the government
that disclosed the correct date of the predicate convic-
tion (Tr. 15, 24).2 On April 15, 1983, the grand jury
returned a superseding indictment correcting the typo-
graphical error in Count One by changing “17” to “7.”
The superseding indictment charged the same two of-
fenses as the original indictment; indeed, its wording
was in all respects save the date of the predicate con-
viction identical to the original indictment (see E.R. 6-
7). Respondent was arraigned on the superseding in-
dictment on April 18, 1983 (Tr. 5-6).
1 “E.R.” denotes the excerpt of record prepared by respondent’s
counsel and filed in the court of appeals. Count One of the Febru-
ary 18 indictment charged, in its entirety (E.R. 3-4):
On or about February 13, 1983, within the Southern District
of California, defendant FERNANDO ROJAS-CONTRERAS,
who was then and there an alien, did knowingly and unlaw-
fully enter the United States from Mexico at a point near San
Ysidro, San Diego County, California, which said time and
place were then and there other than as designated by immi-
gration officials of the United States for the entrance of
immigrants into the United States; that before the commission
of the offense hereinbefore set forth, said defendant was, in
the United States District Court for the Southern District of
California, convicted of the crime of illegal entry, and the
judgment was pronounced and rendered on or about Decem-
ber 17, 1981: in violation of Title 8, United States Code,
Section 1325.
2It also appears that respondent was represented in the earlier
prosecution by counsel associated with the Federal Defenders of
San Diego, Inc., which also supplied his counsel in connection with
the present prosecution (Tr. 21-22).
5
8. At a pretrial conference later on April 18, 1983,
defense counsel made an oral motion for a 30-day con-
tinuance of the trial, which was scheduled to commence
the next day. He argued that, under Section 3161(c) (2)
of the Speedy Trial Act, as interpreted by the Ninth
Circuit in United States v. Arkus, 675 F.2d 245 (1982),
respondent had an absolute right to a new 30-day trial
preparation period following the return of the supersed-
ing indictment, even though the statutory trial prepara-
tion period had already been allowed following the
original indictment.’ Defense counsel asserted (Tr. 6)
that Arkus
holds once there is a rearraignment I have an auto-
matic, if I so claim it, 30-day period. In fact, it’s
only to be excused if there’s an express waiver of
counsel. And so therefore under the statute and
Arkus, I would make that demand.
In invoking Section 3161(c) (2), defense counsel simply
relied on Arkus, which he described as “rather clear cut”
(Tr. 9). He did not claim that respondent was in any
respect prejudiced by the alteration in the date of the
predicate offense accomplished by the superseding indict-
ment, and he did not deny that he had been advised of
the typographical error in the original indictment well
in advance of the scheduled trial date. Respondent’s
counsel did argue that he needed additional time to con-
sult a fingerprint expert and to review respondent’s
immigration (‘A’) file, but he did not claim that the
need for additional time to complete these tasks had any-
thing to do with the change in the indictment. Review
of the immigration file, counsel urged, was necessary to
defend the illegal reentry violation charged in Count
3 The record suggests (Tr. 15) that the prosecutor initially called
the attention of defense counsel to the court of appeals’ decision in
Arkus, believing that it was distinguishable, but that it was appro-
priate to allow the defense an opportunity to call it to the district
court’s attention.
6
Two; the fingerprint expert was needed, respondent ar-
gued, to determine whether respondent was the same
person convicted of illegal entry on December 7, 1981.
Tr. 10-12.
Citing the Seventh Circuit’s decision in United States
v. Horton, 676 F.2d 1165 (1982), cert. denied, 459 U.S.
1201 (1983), and seeking to distinguish Arkus on factual
grounds, the government disputed that the Speedy Trial
Act required a new 30-day defense-preparation period
following the return of a superseding indictment in the
circumstances of this case (Tr. 15-16, 17, 18-19). With
respect to the separate practical justifications given by
respondent for a discretionary continuance, the govern-
ment pointed out that its own fingerprint expert had
not yet compared respondent’s prints to the prints of the
person convicted on December 7, 1981, but that he
planned to do so the following morning. The court
ordered the government to have its expert contact de
fense counsel with the results of the analysis as soon
as he had completed the task (Tr. 26-27). Ultimately,
however, respondent agreed to stipulate that he was in-
deed the person convicted of illegal entry on December 7,
1981, rendering unnecessary expert testimony as to re-
spondent’s identity (Tr. 61, 256-257). In order to moot
respondent’s plea that he could not defend the charge in
Count Two until he had reviewed the immigration file,
the government offered to dismiss Count Two and to
proceed to trial the next day on Count One alone. The
court conditioned its denial of respondent’s continuance
motion upon dismissal of Count Two (Tr. 18, 23, 25-26).
In denying respondent’s motion for a 30-day continu-
ance, the district court relied substantially on the Seventh
Circuit’s decision in Horton and distinguished Arkus on
factual grounds (Tr. 23-25). The court also emphasized
that respondent was not in any respect prejudiced by
being required to go to trial on the superseding indict-
ment (Tr. 24-25):
7
[T]he first issue before the court is whether or
not there is any prejudice that has been shown by
virtue of him going to trial on the superseding
indictment on which he was just arraigned this
morning. In other words, is the change of date in
Count 1 so significant and causes a significant prob-
lem. I see none.
To the extent that it appears that the discovery
was very clear, the date that was being discussed is
the date of the indictment, and therefore certainly
the basis for their felony, and the prior act was
clear from the discovery and clear from the incep-
tion. So it was a ministerial act to correct a date
error where a “1” had been inserted in error, and
that has been corrected by the superseding indict-
ment. So I find that there has been no change—I
mean, no prejudice from the superseding indictment.
4. The court of appeals reversed, holding that under
its decision in United States v. Harris, 724 F.2d 1452
(1984), which in turn relied on Arkus, respondent was
entitled to a new 30-day defense preparation period fol-
lowing his arraignment on the superseding indictment
(Pet. App. 2a). The court of appeals rejected the gov-
ernment’s argument that, because the superseding indict-
ment merely corrected a typographical error of which
defense counsel was already aware, no new defense prep-
aration period was required. The court commented only
on the government’s observation that the original indict-
ment could have been amended without resubmitting the
case to the grand jury, describing this circumstance as
“immaterial” and stating (Pet. App. 2a): “It was the
government who chose to proceed by way of reindict-
ment.” Finally, citing its decision in United States v.
Daly, 716 F.2d 1499, 1506 (1983), the court of appeals
held that reversal of respondent’s conviction was re-
quired to remedy the Speedy Trial Act violation (Pet.
App. 2a):
8
[A]ny pretrial preparation period shorter than
thirty days is inadequate per se. No showing of
prejudice is required.'*!
INTRODUCTION AND SUMMARY OF ARGUMENT
The Speedy Trial Act of 1974, as amended in 1979,
18 U.S.C. 3161 et seq., establishes inside and outside
time limits for commencing trial in criminal cases. Es-
sentially, it constructs a window of time during which
a case must be tried. On the one hand, pursuant to Sec-
tion 3161(¢c) (2), the provision at issue here, added to
the Act by the 1979 Amendments, trial may not com-
mence earlier than 30 days “from the date on which the
defendant first appears through counsel or expressly
waives counsel and elects to proceed pro se” unless the
defendant consents in writing to an earlier trial date.
On the other hand, trial must begin no later than 70
days after “the filing date (and making public) of the
information or indictment, or from the date the defend-
ant has appeared before a judicial officer of the court
in which such charge is pending, whichever date last
occurs.” 18 U.S.C. 3161(c)(1). Certain proceedings,
however, like the filing of a pretrial motion, automatically
extend the 70-day limit by stopping the clock and creat-
ing periods of excludable delay. 18 U.S.C. 3161(h) (1)-
(7).° The maximum time limit can also be extended in
4 Following the decision of the court of appeals, respondent com-
pleted the term of imprisonment to which he was sentenced and
was returned to Mexico (see Br. in Opp. 6). As explained in our
Reply Memorandum at the petition stage (at 2-5), these develop-
ments do not moot this case, for respondent’s conviction, if rein-
stated, will have significant collateral consequences. See also Ball
v. United States, No. 84-5004 (Mar. 26, 1985), slip op. 9.
5It is generally held—and it is our view—that the 30-day
minimum pretrial preparation period is not extended by such peri-
ods of excludable delay. See United States v. Wooten, 688 F.2d
941, 949-951 (4th Cir. 1982); United States v. Mastrangelo, 733
F.2d 793, 796-797 (11th Cir. 1984); see also Comm. on the Ad-
ministration of the Criminal Law of the Judicial Conference of
9
the discretion of the district court if the ends of justice
so require. 18 U.S.C. 3161(h) (8). For instance, the 70-
day period may be extended to ensure that the defendant
has a “reasonable time to obtain counsel” and to ensure
that his counsel has “reasonable time necessary for ef-
fective preparation.” 18 U.S.C. 3161 (h) (8) (B) (iv).
The question presented in this case concerns identifica-
tion of the earliest permissible date for starting trial in
a prosecution in which a superseding indictment has been
returned. In our view, Section 3161(c)(2) does not
guarantee a defendant a new 30-day preparation period
following the return of a superseding indictment. The
contrary holding of the court below has been rejected by
every other court of appeals that has considered this
issue.*
I
A. The court of appeals’ decision is contrary to the
language of Section 3161(c) (2), which provides a 30-
day trial preparation period running from the “defend-
ant(’s] first appear[ance] through counsel.” A defend-
ant’s arraignment on a superseding indictment charging
the same offense plainly is not the defendant’s first ap-
pearance, and it accordingly does not trigger a new 30-
day period.
the United States, Guidelines to the Administration of the Speedy
Trial Act of 1974, as Amended 14-15 (rev. 1979, with amendments
through Oct. 1984); Misner, The 1979 Amendments to the Speedy
Trial Act: Death of the Planning Process, 32 Hastings L.J. 635,
653 (1981); but see S. Rep. 96-212, 96th Cong., Ist Sess. 82
(1979) ; United States v. Arkus, 675 F.2d at 248 & n.4.
®*See United States v. Guzman, 754 F.2d 482, 485-486 (2d Cir.
1985), petition for cert. pending, No. 84-1604; United States v.
Rush, 738 F.2d 497, 510-511 (1st Cir. 1984), cert. denied, No. 84-685
(Feb. 25, 1985); United States v. Williford, No. 88-1876 (5th Cir.
Feb. 27, 1984), slip op. 3-6, cert. denied, No. 83-6814 (Oct. 9,
1984); United States v. Horton, 676 F.2d 1165, 1169 (7th Cir.
1982), cert. denied, 459 U.S. 1201 (1983) ; United States v. Todisco,
667 F.2d 255, 260 (2d Cir. 1981), cert. denied, 455 U.S. 906 (1982).
10
This reading of the Act is corroborated by other pro-
visions of the elaborate, highly articulated, statutory
scheme. Reading Section 3161(c) (2) together with Sec-
tion 3161(d)(1) and Section 3161(h) (6), it is apparent
that Congress deliberately made no provision for the 30-
day defense preparation period to start anew following
a superseding indictment. In circumstances where Con-
gress did so intend it made explicit provisions therefor
in the Act.
The court of appeals’ view of the operation of the 30-
day rule also brings it into direct conflict with the 70-
day rule that governs the outside time limit for trial.
The court of appeals’ analysis can lead to situations in
which there is no trial date that is permissible as of
right. Indeed, this case is such a case. Plainly Congress
could not have intended such a result.
The court of appeals erroneously assumed that, absent
coverage under Section 3161(c) (2), there would be no
means for defendants to secure adequate preparation
time following a superseding indictment. But wholly
apart from the statutory 30-day rule, the district court
has ample authority to continue a trial date where the
defendant demonstrates actual need for further prepara-
tion time resulting from a superseding indictment. And
Section 3161(h)(8)(B)(iv) of the Act, wholly over-
looked by the court of appeals, ensures that such con-
tinuances are not constrained by the Act’s 70-day outer
time limit for commencing trial.
B. The legislative history of the Act demonstrates that
Congress did not intend that the 30-day rule be applied
to superseding indictments generally. To begin with, the
court of appeal’s construction clashes with the overriding
purpose of the Act: to expedite criminal trials. While
considerations of fairness might sometimes require ad-
ditional defense preparation time as a result of material
changes in a superseding indictment, Congress under-
stood that the district courts would employ their schedul-
ing discretion and grant whatever continuances were
necessary to avoid “assembly line justice.”
ll
The 30-day defense preparation period provision of the
Act, added by a 1979 amendment, was inspired by a set
of guidelines developed by the Second Circuit for img
plementation of the Act. While those guidelines recom-
mended that defendants be allowed at least 30 days’ prep-
aration time following arraignment, they made clear that
this policy was not directly applicable to trials on super-
seding indictments. Congress adopted the 30-day rule
from the Second Circuit guidelines in 1979 because it
feared that some courts had overreacted to the prompt
trial mandate of the Act. But there is no indication
that Congress believed that the other devices available
to assure adequate defense preparation time—the dis-
trict court’s authority to manage its calendar and defense
requests for continuances—were inadequate to address
any need that might arise for additional time above and
beyond the initial 30-day period allowed at the outset
of every prosecution. The 1979 legislative history makes
unusually clear that Congress intended the Act to be in-
terpreted in conformity with the Second Circuit guide-
lines.
C. Practical considerations also make clear that re-
turn of a superseding indictment should not be held to
trigger a new, automatic 30-day preparation period. Su-
perseding indictments are regularly and appropriately
employed by federal prosecutors for such purposes as cor-
recting minor or obvious errors in the original indict-
ment, conforming the indictment to the evidence expected
to be adduced at trial, and dropping defendants or counts.
Such superseding indictments have no material bearing
upon the ability of a defendant who has already had 30
days’ preparation time to be ready for trial. This case
perfectly illustrates our point. It is inconceivable that
the correction of an obvious typographical error in re-
spondent’s indictment in any way altered his trial prep-
aration burden. And even in cases where some addi-
tional preparation time may be warranted, the district
court may allow an appropriate continuance—often, only
12
a brief delay would be necessary—without incurring the
pointless delay that an automatic 30-day postponement
frequently will entail. The requirement created by the
court of appeals of an additional automatic 30-day
delay in the trial is not only unnecessary to protect
defendants’ interests, but can cause severe disruption of
the crowded dockets of the district courts, with attendant
inconvenience to all participants. The court of appeals’
ruling accordingly is strikingly inconsistent with the fun-
damental purpose of the Speedy Trial Act.
II
Even if the Speedy Trial Act were interpreted to re-
quire a new 30-day trial preparation period following a
superseding indictment, any statutory violation here was
most assuredly harmless error. Nothing in the statutory
language or legislative history renders the general harm-
less error rule inapplicable to violations of the 30-day
rule. Indeed, the statute does not prescribe any sanction
at all for violations of Section 3161(c) (2). We may as-
sume that a new trial is ordinarily an appropriate rem-
edy, and that the defendant need not go forward with
a showing of prejudice to invoke that remedy. But here
the prosecution can overcome any presumption of preju-
dice. The change in the indictment was trivial, and was
not, in any event, a surprise to respondent. Respondent
has never suggested—and could not credibly suggest—
that the superseding indictment affected his readiness for
trial.
13
ARGUMENT
I. THE SPEEDY TRIAL ACT DOES NOT FORBID
COMMENCEMENT OF TRIAL SOONER THAN 30
DAYS FOLLOWING A DEFENDANT'S ARRAIGN-
MENT ON A SUPERSEDING INDICTMENT
A. The Language And Structure Of Pertinent Provi-
sions Of The Act Confirm That Return Of A Super-
seding Indictment Does Not Automatically Trigger
A New Defense Preparation Period
1. In construing Section 3161(c) (2), “we look first
to its language. If the statutory language is unambigu-
ous, in the absence of ‘a clearly expressed legislative
intent to the contrary, that language must ordinarily be
regarded as conclusive.’ United States v. Turkette, 452
U.S. 576, 580 (1981).” Russello v. United States, No.
82-472 (Nov. 1, 1983), slip op. 4. Here, the statute
speaks clearly. Section 3161(c) (2) prohibits the com-
mencement of trial “less than thirty days from the date
on which the defendant first appears through counsel”
(emphasis added). “First” should be given its “ordinary
* * * common meaning.” Perrin v. United States, 444
U.S. 37, 42 (1979). As the dictionary confirms, there
can only be one such “first” appearance in a case.’ And
as the Eleventh Circuit observed in United States v.
Darby, 744 F.2d 1508, 1520 (1984), petition for cert.
pending, No. 84-1261 (emphasis in original), “{w]hen
employing the term ‘first,’ Congress presumably did not
have subsequent appearances in mind.” Once the defend-
ant has appeared with counsel in a given prosecution,
the event that triggers operation of Section 3161(c) (2)
can never happen again.
Respondent and the court of appeals, however, propose
that the defense preparation period runs not from the
™“First” is defined as “before any or some other person or thing
(as in time, space, rank, or importance).” Webster's Third New
International Dictionary 856 (1976 ed.).
14
date of the defendant’s first appearance with counsel, but
rather from his second, third, or perhaps 100th appear-
ance with counsel. They would measure the 30-day
period from the defendant’s first “post-superseding in-
dictment” appearance with counsel. But the statute
simply contains no such qualification.
Indeed, Section 3161(c) (2) does not use the date of
indictment as a reference point at all. “Nothing on the
face of the statute supports” (United States v. Naftalin,
441 U.S. 768, 772 (1979)) respondent’s argument that
the return of a superseding indictment triggers a new
preparation period. On the contrary, instead of referring
to the date of indictment, Section 3161(c) (2) links the
30-day moratorium during which trial may not begin
to the date of the defendant’s first “appearance” with
counsel. It thus assures a defendant that his attorney
will have at least 30 days in which to prepare for trial.
Had Congress intended that the return of a superseding
indictment trigger a second moratorium on commence-
ment of trial, it surely would have worded the statute
so to provide.
2. a. Other provisions of the Speedy Trial Act confirm
that Congress did not intend the 30-day preparation
period to apply to superseding indictments. Although
Congress provided for restarting speedy trial time limits
in certain situations, see, e.g., 18 U.S.C. 3161(d) (1),
(d) (2) and (e), nowhere in the highly articulated statu-
tory framework is provision made for a new trial prep-
aration period following a superseding indictment. In-
deed, close examination of Section 3161(d) (1) and See-
tion 3161(h)(6) makes clear that this omission is
deliberate.
Section 3161(d)(1) provides that when an indictment
is dismissed on the defendant’s motion and a new indict-
ment is filed charging the defendant with the same or a
related offense, the government is allowed a new period
of 70 nonexcludable days to bring the defendant to trial
and the defense is afforded a new 30-day trial prepara-
15
tion period. By contrast, neither Section 3161(d) (1)
nor any other provision of the Act makes any provision
for restarting of the Speedy Trial Act time limits when
it is the government that dismisses the original indict-
ment, or when a superseding indictment supplants the
original indictment. It is clear, moreover, that this omis-
sion does not result from a legisiative oversight. Section
3161(d) (1) retriggers the 30- and 70-day time limits
upon refiling of charges following dismissal of a com-
plaint, regardless of which party is responsible for the
dismissal, whereas new time limits are triggered by re-
newed filing of charges after dismissal of an indictment
only when the dismissal is “upon motion of the defend-
ant” (18 U.S.C. 3161(d) (1)).
Section 3161(h) (6) of the Speedy Trial Act likewise
confirms that this distinction is a deliberate one. That
section provides that when an indictment is dismissed
upon the government’s motion, the period between that
dismissal and the defendant’s arraignment upon a sub-
sequent indictment charging the same offense is not to
be counted against the 70-day period within which trial
must be held.* In requiring exclusion of the time when
a defendant is not held to answer on any indictment,
Congress plainly understood that, outside of the re-
indictment situations covered by Section 3161(d) (1), the
time within which a defendant must be brought to trial
on a subsequent indictment is measured from his arraign-
ment on the original indictment, subject to the tolling
rule of Section 3161(h) (6). Thus, when dismissal is on
the government’s own motion and there is no gap be-
tween dismissal and reindictment (so that Section 3161
(h) (6) is not directly and literally controlling), the 70-
day outside limit for commencing trial is to be computed
8 See United States v. Bounos, 730 F.2d 468, 470 (7th Cir. 1984) ;
United States Vv. Rodviguez-Restrepo, 680 F.2d 920, 921 (2d Cir.
1982); cf. United States v. MacDonald, 456 U.S. 1, 7 n.7 (1982).
16
directly by reference to the date of the original arraign-
ment.*
When the 70-day time limit does not begin anew, the
defendant should not be accorded a new 30-day prepara-
tion period. United States v. Rush, 738 F.2d 497, 511
(1st Cir. 1984). The Committee on the Administration
of the Criminal Law of the Judicial Conference of the
United States has also recognized as much in its Guide-
lines to the Administration of the Speedy Trial Act of
1974, As Amended 14 (rev. 1979, with amendments
through Aug. 1981) (emphasis added) :
In the opinion of the Committee, the [defense-
preparation] period does not begin to run anew
when superseding indictments are filed in circum-
stances in which the seventy-day time limit is deter-
mined by reference to the original indictment or
information. See Section 3161(h) (6). Nor does a
new thirty-day minimum period begin to run if
prosecution is resumed on an original indictment or
information following a mistrial, appeal, or with-
drawal of a guilty plea. In all of these situations,
the trial court should use its scheduling discretion to
ensure that the defense has time to prepare in the
circumstances of the particular case.'"®!
® See United States v. Rush, 738 F.2d at 510-511; United States
v. Horton, 676 F.2d at 1170; cf. United States v. Dennis, 625 F.2d
782, 793 (8th Cir. 1980).
©The 1984 revision of these guidelines adds the observation
that the Ninth Circuit’s interpretation of Section 3161(c) (2) is,
in this respect, contrary to the Committee’s view. Comm. on the
Administration of the Criminal Law of the Judicial Conference of
the United States, Guidelines to the Administration of the Speedy
Trial Act of 1974, As Amended 15-16 (rev. 1979, with amendments
through Oct. 1984) (“Judicial Conference Guidelines (1984)’’),
citing United States y. Harris, 724 F.2d 1452 (9th Cir. 1984).
Curiously, in its decision in United States v. Arkus, 675 F.2d 245
(1982), in which it first adopted the reading of Section 3161 (c) (2)
applied in this case, the Ninth Circuit observed that the district
court’s plan for prompt disposition of criminal cases, approved by
the Circuit Judicial Council (under 18 U.S.C. 3165(a)-(c)), re-
17
As we explain next, unless the Judicial Conference Guide-
lines are followed a paradox ensues: there may be no
date on which a timely trial may be heid where a super-
seding indictment is returned more than 40 days after
filing of the original indictment.
b. The court of appeals’ interpretation of Section
3161(c) (2) renders the Act potentially unworkable be-
cause it engenders a clash between the requirements of
that section and the fundamental provision of the Act—
the outside time limit for trial established by Section
3161(c) (1). If a superseding indictment is returned
after the 40th speedy trial day has passed, allowing a
new 30-day defense preparation period after rearraign-
ment may cause the earliest permissible trial date to
fall more than 70 speedy trial days after the original
indictment.
This is so because Section 3161(c) (2) is not an ex-
cludable delay provision. Compare 18 U.S.C. 3161(h)
(1)-(4) ; see page 18 note 11, infra. Thus, if a defend-
ant’s first post-superseding-indictment appearance with
counsel is, for instance, on the 50th speedy trial day, and
trial may not commence for 30 days thereafter, absent
some unrelated excludable delay the outside time limit for
quired that the 30-day defense preparation period be reckoned from
the original indictment whenever the outside time limit for trial
was to be so computed. 675 F.2d at 248. That district court plan
tracks the approach of the Judicial Conference Guidelines. The
Arkus panel summarily concluded, however, that the local plan
conflicted with the requirements of the Act in this respect and was
to be disregarded. /bid.
It should be noted that in Arkus the prosecutor had urged that
the defendant was entitled to a new 30-day preparation period
following reindictment. 675 F.2d at 247-248. The defendant had
moved to dismiss the indictment on the ground that his trial was
commenced beyond the 70-day outside time limit; the government
responded that the 70-day period had been extended by the need to
allow the defendant a new 30-day preparation period following
reindictment. Jbid. Even when the government’s mistake in Arkus
was acknowledged, however, the Ninth Circuit refused to reconsider
its reading of Section 3161(c) (2), adhering to Arkus in Harris and
in the decision below.
18
commencing trial will be exceeded. Under the applicable
sanctions provisions of the Act such a violation of the
70-day limit would require dismissal of the indictment
(with or without prejudice). See 18 U.S.C. 3162(a) (2).
Plainly Congress could not have intended that the Speedy
Trial Act be interpreted so as to confront prosecutors
and the district courts with the choice of trying criminal
cases impermissibly early or impermissibly late. The
artificial construction of Section 3161(c) (2) that creates
this dilemma accordingly should be rejected."
11 It is not impossible to construe the Act as did the court below
and still avert this clash between Section 3161(c) (1) and Section
3161(c) (2). But to do so requires distorting the Act in other
respects.
First, Section 3161(c) (2) could be treated as an excludable delay
provision that tolls running of the 70-day time limit. Indeed, this
view was adopted by the district court in Arkus. See 675 F.2d at
248. But the moratorium on commencement of trial created by
Section 3161(c) (2) is not included in the catalog of events creating
excludable time, 18 U.S.C. 3161(h)(1)-(9); nor is it fairly de
scribed as “[an]lother proceeding[] concerning the defendant”
within the meaning of the generic exclusion for such proceedings,
18 U.S.C. 3161(h) (1). Moreover, if the 30-day defense prepara-
tion period automatically creates excludable time following a super-
seding indictment it is not apparent why the same is not true
following every initial indictment. Of course, the result of recog-
nizing such an exclusion would be to convert the 70-day outside
time limit for trial into a 100-day time limit in every case. Obvi-
ously if Congress intended that result it would have so indicated
clearly. See United States v. Richmond, 735 F.2d 208, 214 (6th
Cir. 1984).
In Arkus the Ninth Circuit rejected the view that the 30-day
defense preparation period tolls running of the 70-day period, con-
cluding instead that the two periods run concurrently following
return of a superseding indictment. 675 F.2d at 248. It is appar-
ently the Ninth Circuit’s view that trial should commence in such
a case the day that the second defense preparation period expires.
Ibid. But there is no more basis in the statutory language for this
construction of the Act than there is for the interpretation dis-
cussed just above. And this second alternative approach is wholly
unworkable because it allows the parties and the district court
19
This case well illustrates the paradox we have identi-
fied. The original indictment here was filed on February
18, 1983; respondent was arraigned the same day. The
superseding indictment was filed 56 days later. No pre-
trial motions were filed in this case, and other pretrial
proceedings (filing of the indictment and the re-arraign-
ment) that create time excludable from the 70-day out-
side time limit for trial account for only two days.
Accordingly, only 16 days then remained in which to
commence respondent’s trial. Respondent was arraigned
on the superseding indictment on April 18. 1983. If
respondent had been given a new 30-day preparation
period at that point, his trial could not have begun until
May 18, 1983, 17 days after the 70-day time limit had
expired. Yet the circumstances of this case would have
provided no justification for extending the 70-day limit
so as to accommodate the additional delay. Compare
pages 90-21, infra. Respondent would accordingly have
secured the right to dismissal of the indictment simply
by invoking his supposed right to a new preparation
period.
only one permissible trial date. It seems safe to say that Congress
did not have any such unmanageable regime in mind.
A third alternative for reconciling the 30- and 70-day rules under
the court of appeals’ decision would be to require the government
to seek an “ends of justice continuance” under Section 3161 (h) (8)
of the 70-day outside time limit in order to accommodate the new
30-day defense preparation period. This is in fact the course that
we have recommended to federal prosecutors in the Ninth Circuit
who must comply with the decision under review at the present
time. But it is inconceivable that Congress expected the govern-
ment to have to seek a special continuance simply to preserve any
window at all within which a case may be tried following a super-
seding indictment. And this apprcach would result in wholly un-
warranted delays in many cases in which the return of a supersed-
ing creates no justification for trial delay. See pages 31-33, infra.
Instead, as we explain in the ensuing text (pages 19-20), Con-
gress surely expected that the defendant—the person actually
seeking a delay of trial—would request an appropriate continuance
of trial under Section 3161 (h) (8) (B) (iv) if one were needed.
20
3. An additional provision of the Speedy Trial Act
overlooked by the court of appeals supports our reading
of Section 3161(c) (2). The Speedy Trial Act contains
not one but two provisions that tend to ensure that de-
fendants have adequate time to prepare for trial. The
first is, of course, Section 3161(c) (2), the operation of
which is directly at issue here. Section 3161(c) (2)
assures that every defendant is afforded at least 30 days
in which to prepare his case with the assistance of coun-
sel. But a distinct provision, Section 3161(h) (8), is
designed to ensure adequate preparation time to defend-
ants when special circumstances of the case require that
further defense preparation time be allowed beyond the
time when the prosecution would be obliged by Section
3161(c) (1) to proceed to trial.
In enacting Section 3161(c)(2) in 1979 (see pages
27-30, infra), Congress recognized that both defendants
and the prosecution sometimes need more preparation
time than Section 3161(c) (1) on its face allows. Thus
Congress simultaneously amended Section 3161 (h) (8),
which authorizes discretionary “ends of justice continu-
ances” that are excludable from the outside time limit
for trial, in order to make clear that a continuance
should be granted where failure to grant one
would deny the defendant reasonable time to obtain
counsel, would unreasonably deny the defendant
* * * continuity of counsel, or would deny counsel
for the defendant * * * the reasonable time neces-
sary for effective preparation, taking into account
the exercise of due diligence.
18 U.S.C. 3161 (h) (8) (B) (iv)."* Section 3161 (h) (8)
(B) (iv) gives the Act the necessary flexibility to ac-
commodate the effect of a superseding indictment. It
adequately protects a defendant who legitimately needs
additional preparation time for any reason, including the
return of a superseding indictment, and who makes a
12 See S. Rep. 96-212, 96th Cong., Ist Sess. 26, 31, 35 (1979);
H.R. Rep. 96-390, 96th Cong., Ist Sess. 12 (1979).
21
properly supported application for such a continuence to
the district court. See United States v. Aviles, 623 F.2d
1192, 1196 (7th Cir. 1980).
Moreover, within the 70-day limit of the Speedy Trial
Act, the court has inherent authority to grant a con-
tinuance upon a proper showing of need, following a
superseding indictment. If the district court abuses its
discretion in denying a continuance, appellate relief is
available. See, e.g., United States v. Todisco, 667 F.2d
255, 260 (2d Cir. 1981); United States v. Burton, 584
F.2d 485, 489 (D.C. Cir. 1978), cert. denied, 439 U.S.
1069 (1979). Thus, in the era of the Speedy Trial Act,
just as before its enactment, the district court’s sound
exercise of its inherent discretion to govern its calendar
protects any defendant who seeks a continuance to pre-
pare for trial on a superseding indictment that alters
the charges in a manner that creates a legitimate need
for delay."* Accordingly, there is no reason to extend
the application of Section 3161(c)(2) beyond the cir-
cumstances specified on the face of the statute.
B. The Legislative History Of Section 3-61(c)(2) In-
dicates That An Automatic 30-Day Postponement
Of Trial Following A Superseding Indictment Was
Not Intended
The legislative history of the Speedy Trial Act is also
inconsistent with the court of appeals’ reading of Section
3161(c) (2). A dominant theme that is reflected in the
1974 Act’s legislative history was Congress’s desire to
obtain prompt disposition of criminal charges and swift
punishment of offenders—a policy that is directly con-
trary to the court of appeals’ recognition of a second
automatic preparation period following the return of a
superseding indictment. And Congress assured that the
speedy trial mandate of the Act would not undermine
the rights of defendants by authorizing them to seek
18 Of course, where the outside time limit for trial must be ex-
tended to allow a reasonable continuance to the defendant, Section
3161 (h) (8) (B) (iv) authorizes the necessary exclusion of time.
22
appropriate continuances to extend trial deadlines where
necessary. Moreover, when Congress added Section 3161
(ce) (2) to the Speedy Trial Act in 1979, it endorsed the
provisions of the Speedy Trial Act interpretive guidelines
that had previously been adopted by the Second Circuit.
These guidelines pioneered the 30-day trial preparation
period but made clear that a defendant was not auto-
matically entitled to a new 30-day preparation period
following the return of a superseding indictment.
1. As originally enacted, Title I of the Speedy Trial
Act of 1974, 18 U.S.C. 3161 et seqg., established only out-
side time limits within which a criminal case had to be
tried. See 18 U.S.C. (1976 ed.) 3161(c). It set no
limit on the degree of expedition permitted. Moreover,
the legislative history of the 1974 Act reflects little con-
cern on the part of Congress that its provisions might
cause defendants to be tried before they are ready. See
generally, S. Rep. 93-1021, 93d Cong., 2d Sess. (1974) ;
H.R. Rep. 93-1508, 93d Cong., 2d Sess. (1974). Instead,
the legislative history conveys Congress’s paramount con-
cern that substantial pretrial delays are prejudicial to
society’s interests.
Prior to 1974, only the speedy trial guarantee of the
Sixth Amendment restrained trial delay. In the view
of Congress, however, the Sixth Amendment was inade-
quate to protect the public’s right to speedy justice. S.
Rep. 93-1021, supra, at 14-15. Congress was particu-
larly concerned about the prevailing level of pretrial de-
lay in federal criminal cases because it was aware of a
1970 National Bureau of Standards study indicating that
the likelihood that a defendant who is released pending
trial will commit additional crimes while on bail “in-
creases significantly if he is not brought to trial within
60 days of arrest.” Jd. at 8; H.R. Rep. 93-1508, supra,
at 14. In order “to assist in reducing crime and the
danger of recidivism by requiring speedy trials” (id. at
8) and alleviate the administrative and financial burden
of drawn out proceedings and lengthy pretrial detention
of the accused (id. at 15), Congress in 1974 required
23
indictment within 30 days of arrest, arraignment within
10 days of indictment, and trial within 60 days of ar-
raignment. 18 U.S.C. (1976 ed.) 3161(b) and (c)."
The 60-day arraignment-to-trial limit was supported by
the American Civil Liberites Union and some members of
the defense bar. See Speedy Trial Act of 1974: Hearings
on S. 754, H.R. 7873, H.R. 207, H.R. 658, H.R. 687, H.R.
773 and H.R. 4807 Before the Subcomm. on Crime of the
House Comm. on the Judiciary, 93d Cong., 2d Sess. 226
(1974) (“1974 House Hearings’’| (statement of Charles
Morgan); id. at 338 (statement of Ivan E. Barris)."
Some others argued that the proposed bill provided in-
sufficient preparation time for defense attorneys. See,
e.g., Speedy Trial: Hearings on S. 754 Before the Sub-
comm. on Constitutional Rights of the Senate Comm. on
the Judiciary, 93d Cong., Ist Sess. 145, 150 (1973)
(statement and testimony of Gilbert S. Rosenthal). But
there was evidently little support in Congress for the
latter position. The House observed that the Act pro-
vided the district courts with ample authority to protect
defendants’ interests, emphasizing that “the defendant
may request the court to continue his case for reasons
which are within the interest of justice.” H.R. Rep.
93-1508, supra, at 15.
Thus, as enacted in 1974, Section 3161(c) contained
only an outside time limit for commencing trial; it did
not mandate any fixed minimum interval before trial.
At the same time, however, Congress emphasized that it
In 1979 Congress folded the second and third intervals into
the present Section 3161(c) (1), which sets a single 70-day deadline
for commencing trial, running from indictment or arraignment,
whichever occurs last (see page 8, supra).
Barris testified (1974 House Hearings 338): “As I read
Senate bill 754, I think there are certainly adequate protections
to the rights of the defendant, there are provisions by which dis-
cretion can be exercised by the trial judge in seeing that the rights
of the individual to a complete and full hearing are not trampled
under in the headlong rush for the disposition of a trial.”
24
had no intention to sanction “assembly-line justice”
(H.R. Rep. 98-1508, supra, at 15). Congress ensured
against the latter result by authorizing the district court
to suspend the running of the outside time limit for trial
by granting an “ends of justice continuance.” Such a
continuance was made available in various circumstances,
when “the ends of justice served by granting of such
continuance outweigh the best interests of the public and
the defendant in a speedy trial.” 18 U.S.C. (1976 ed.)
3161 (h) (8).
2. The evolution of the 30-day defense preparation
period began with a set of guidelines issued by the Second
Circuit Judicial Council interpreting the 1974 Act. Ju-
dicial Council Speedy Trial Act Coordinating Comm.,
Guidelines Under the Speedy Trial Act (Jan. 16, 1979),
reprinted in The Speedy Trial Act Amendments of 1979:
Hearings on S. 961 and S. 1028 Before the Senate Comm.
on the Judiciary, 96th Cong., 1st Sess. 386-436 (1979)
(“1979 Senate Hearings”). Issuance of these guide-
lines was presumably prompted at least in part by the
approaching effective date of the sanctions provisions
of the 1974 Act.'’ The guidelines provided detailed guid-
ance to the district courts in the Second Circuit as to the
application of each provision of the Act. In addition, a
preamble to the Second Circuit guidelines contained the
suggestion that district courts generally allow a prepara-
tion period of at least 30 days before proceeding to trial
when requested to do so by a defendant or the govern-
The Second Circuit guidelines are also reprinted in Proposed
Amendments to the Speedy Trial Act of 1974: Hearings Before
the Subcomm. on Crime of the House Comm. on the Judiciary, 96th
Cong., Ist Sess. 306-353 (1979), and at 125 Cong. Rec. 15457-15467
(1979).
17The 60-day arraignment-to-trial time limit adopted in the
1974 Act was phased in gradually over a four-year period ending
July 1, 1979, rather than being made effective immediately. 18
U.S.C. 3161(g). Moreover, the mandatory dismissal sanction for a
violation of the applicable time limits was not to take effect until
July 1, 1979. 18 U.S.C. (1976 ed.) 3163(c).
25
ment (Guidelines, reprinted at 1979 Senate Hearings
392-393) :
To insure the accomplishment of the goal of
accommodating the interests of speedy disposition of
the charges with reasonable requests by counsel for
adjournments, whenever the time between arraign-
ment and the scheduled trial date does not exceed
thirty (30) days, the Court shall (a) view a request
for an adjournment of trial to a date beyond thirty
(30) days but within the sixty (60) day limit
liberally and (b) where such a request is denied, set
forth its reasons for finding that the denial of the
adjournment does not interfere with the defendant
or Government’s choice of counsel, or the parties’
ability to prepare for trial without undue pressure.
Significantly, the Second Circuit guidelines also made
clear that this recommendation was not intended to be
applied, willy-nilly, to trials upon a superseding indict-
ment. The guidelines discuss in considerable detail the
application of the 1974 Act’s 60-day arraignment-to-in-
dictment deadline to various situations in which an ad-
ditional or superseding indictment is filed. 1979 Senate
Hearings 415-420. The guidelines explain that in the
situation where a superseding indictment adds new
charges, trial of the original charges must begin “within
the time limit for commencement of trial on the original
indictment or information,” whereas a new 60-day period
is available in which to try newly charged offenses. /d.
at 416-417, 418-419. Moreover, the Second Circuit guide-
lines offered a hypothetical illustration of this principle
in which a superseding indictment containing both new
and previously charged offenses is handed up on the
55th day of the 60-day arraignment-to-indictment period
established by the 1974 Act. Jd. at 418. The guidelines
explain (id. at 418-419; emphasis added)
[I}n this hypothetical, following the arraignment on
the superseding indictment, there are only five (5)
days of non-excluded “arraignment-trial” interval
time left for trial of those offenses in the supersed-
26
ing indictment that are contained in the original
indictment. Jf the Government wishes to try all
counts of the superseding indictment together, which
is presumably the case, it will have to be prepared
to try the entire indictment five (5) days after
arraignment [unless an] (h)(8) continuance [of
the deadline for trying the original charges] is
granted.
The Second Circuit guidelines thus indicate that the
government is free to proceed to trial immediately follow-
ing return of a superseding indictment—upon all charges
— if it wishes to do so. The 30-day preparation period
recommended by the Second Circuit guidelines was there-
fore not routinely applicable to trials upon a superseding
indictment. Rather, requests of defendants seeking to
postpone trial on a superseding indictment were to be
carefully scrutinized on a case-by-case basis.’* Because,
as we explain below, Congress borrowed heavily from the
Second Circuit guidelines in amending the Speedy Trial
Act in 1979, and endorsed the Second Circuit’s approach
18 The guidelines observe that a superseding indictment may
properly be employed to add charges that do not even arise out of
the same transaction as those previously charged, offering the ex-
ample of additional bank robberies committed by a single defend-
ant. 1979 Senate Hearings 420. The guidelines encourage the
granting of an (h)(8) continuance in such situations, “where
necessary” to permit a single trial on properly joined charges,
evidently assuming that either the prosecution or the defendant
is likely to need more preparation time on the new charges in such
cases. Ibid. But the guidelines emphasize that this will not in-
variably be required (ibid.; emphasis added) :
It is noted that often, before the filing of a superseding indict-
ment, the defendant is advised by the Government attorney
that the Government will offer evidence of other charges at
trial, and full discovery is conducted with respect to such other
charges. Where these other charges are incorporated in a
superseding indictment, the Court may wish to adhere to the
originally scheduled trial date, after finding that under the
circumstanes, neither party needs any additional time to pre-
pare for trial on the superseding indictment. Nothing in these
‘comments precludes such action by the Court.
27
to implementation of the Act, Section 3161(c) (2) should
not be construed to require an automatic 30-day post-
ponement of trial following return of a superseding
indictment.
8. As we have mentioned, the minimum defense prep-
aration period was introduced into the Speedy Trial Act
by the 1979 Amendments, which added 18 U.S.C. 3161
(c)(2). The defense preparation period provision re-
ceived comparatively little attention in the legislative his-
tory, however. The primary focus of attention was pro-
posals of the Justice Department and the Judicial Con-
ference that would have substantially increased the maxi-
mum time limits that were included in the 1974 Act.’
But the pertinent legislative history does confirm that
the 30-day minimum preparation period was adopted
from the Second Circuit guidelines, and it lends no sup-
port whatsoever to the court of appeals’ reading of this
provision in the instant case.
While Congress rejected the appeal made by the Jus-
tice Department and the Judicial Conference for a sig-
nificant extension of the basic deadlines set in 1974, the
arraignment-to-trial deadline was enlarged to 70 days
(see page 23 note 19, supra), and a host of clarifying
changes were made, particularly in the excludable time
provisions of the Act. In addition to these actions, of
course, Congress established the 30-day minimum prepa-
ration period.
a. There is relatively little in the legislative history
of the 1979 Speedy Trial Act amendments that bears di-
rectly on the question whether a new defense preparation
period must be allowed automatically following a super-
seding indictment. But the available legislative history
makes clear that Section 3161(c)(2) was not designed
to anticipate every development in the course of a prose-
19 See S. 961, 96th Cong., Ist Sess. (1979) (Justice Dept. bill),
reprinted in 1979 Senate Hearings 4-5; S. 1028, 96th Cong., 1st
Sess. (1979) (Judicial Conference bill), reprinted in 1979 Senate
Hearings 9-10. See also 8. Rep. 96-212, 96th Cong., Ist Sess. 14-28
(1979) ; H.R. Rep. 96-390, 96th Cong., Ist Sess. 4-11 (1979).
28
cution that might make extra preparation time appropri-
ate, or to obviate exercise of the district court’s discre-
tionary authority to grant appropriate continuances.
The Senate Report states simply that “[t]his provision
assures the defendant some minimal time to prepare.”
S. Rep. 96-212, 96th Cong., Ist Sess. 32 (1979) (empha-
sis added). Significantly, Congress saw the problem of
the defendant’s ability to prepare for trial primarily as
a problem of unwarranted judicial unwillingness to grant
ends-of-justice continuances of the outside time limit for
trial. Jd. at 26.
As we have already observed (page 20), Congress’s
response was to rewrite Section 3161(h)(8) to make
clear that the defendant’s need for reasonable prepara-
tion time is a proper basis for granting such a con-
tinuance. See S. Rep. 96-212, supra, at 26, 31, 33; H.R.
Rep. 96-390, 96th Cong., Ist Sess. 12 (1979). Plainly
then, the legislative history provides no support for ‘he
wooden reading of Section 3161(c)(2) adopted by the
court of appeals. It was Congress’s intent simply to pro-
vide the defendant with a modest preparation period that
would be sufficient for counsel to prepare in most cases;
special circumstances requiring further preparation time
that arise in a much smaller class of cases were to be
addressed through applications for continuance addressed
to the district court’s informed discretion.
b. The legislative history velso demonstrates that Con-
gress was familiar with and endorsed the Second Circuit
guidelines, including the 30-day trial preparation period.
During the legislative hearings there was some testimony
2° The Senate Report states (at 26) :
If courts, feeling compelled to schedule trials immediately,
are loathe [sic] to grant “ends of justice” continuances to per-
mit adequate preparation time—and the Committee finds con-
siderable evidence that many are—and construe automatically-
excludable delays with too much inflexibility, the defendant and
his counsel may shoulder an unintended and unwarranted
share of the speedy trial burden.
29
that defendants were being brought to trial in less than
30 days, resulting in inadequate time to prepare (see
1979 Senate Hearings 93 (testimony of John Cleary) ),
and there was considerable testimony that the 60-day
arraignment-to-trial deadline denied defendants as well
as the government needed preparation time. See, ¢..,
Proposed Amendments to the Speedy Trial Act of 1974:
Hearings Before the Subcomm. on Crime of the House
Comm. on the Judiciary, 96th Cong., lst Sess. 7° (1979)
(“1979 House Hearings”| (testimony of Ju ‘ze Feikens) ;
1979 Senate Hearings 115 (statement of Salvatore Mar-
toche). While some members of Congress were skeptical
that any reform was needed in this area, see, e.g., id.
at 15 (remarks of Rep. Conyers), the view that predom-
inated was that the Second Circuit guidelines offered an
appropriate model for correcting any problem in this
area. Thus, in response to the plea of defense counsel
spokesman Louis Haremski that “|w]hat we need is just
a little more time to the defense to prepare for trial”
(1979 Senate Hearings 121), Senator Biden, a principal
sponsor of the bill ultimately enacted by the Senate, re-
sponded (id. at 122):
[I]t seems to me that the second circuit application
of the present rules, the second circuit guidelines
which would allow the 30-day minimums, could ac-
commodate that concern.
Both the Senate and House Hearings, moreover, identi-
fied Section 3161(c) (2) directly with the Second Circuit
guidelines. 1979 Senate Hearings 82 (testimony of Prof.
Freed and remarks of Sen. Biden); 1979 House Hear-
ings 14-15 (testimony of Shirah Neiman). The House
Report spotlights the latter testimony. H.R. Rep. 96-390,
supra, at 6. The solution ultimately adopted by Congress,
enactment of Section 3161(c)(2) coupled with amend-
ment of Section 3161(h) (8), directly follows the Second
Circuit’s model.
Moreover, the Second Circuit guidelines as a whole
were a primary object of attention during Congress’s
30
consideration of the 1979 Amendments. They were re-
produced in haec verba in the record of both the House
and Senate hearings, well as in the Congressional
Record. See page 2 ote 16, supra. And the hear-
ings themselves are replete with descriptions of and
laudatory references to these guidelines.** The Senate
Report commended the Second Circuit guidelines to the
courts generally as a source of instruction on the proper
application of the Act (S. Rep. 96-212, supra, at 20):
The Second Circuit has interpreted the Act and its
legislative history in a creative manner which pre-
serves its objectives and specifically addresses most
of the problems which have hindered its smooth
implementation * * *. After careful reading, the
Committee is of the opinion that the Second Circuit
guidelines are worthy of consideration by all the
districts as a model for future implementation, con-
sistent with presently-contemplated changes. The
Committee invites every circuit council and district
= judge to give them the closest attention pos-
sible.
The Second Circuit guidelines were also a centerpiece of
Senator Biden’s remarks to the Senate urging adoption
of the 1979 Amendments. 125 Cong. Rec. 15456-15457,
15467 (1979). In these circumstances, even if the statu-
tory language and structure left any room for doubt,
Congress should be understood to have followed the Sec-
ond Circuit’s model, which clearly did not require a
further automatic pretrial delay following return of a
superseding indictment.
C. Practical Considerations Also Argue Against
Extension Of Section 3161(c)(2) To Superseding
Indictments
The primary purpose of the Speedy Trial Act was to
accelerate criminal trials. The defense preparation pro-
*1 1979 Senate Hearings 68, 72, 73, 131, 133, 134, 135, 138, 147;
1979 House Hearings 10, 354.
31
vision was added to the Act as a grace note to ensure
that defendants’ rights to effective representation by
counsel are not inadvertently undercut. There is in-
evitably some degree of tension between the fundamental
goal of the Act—prompt disposition of criminal cases—
and the countervailing policy of Section 3161(c) (2).
This tension is minimized, however, if Section 3161(c)
(2) is construed, in common-sense fashion, to allow one
automatic preparation period at the outset of a prosecu-
tion, when some preparation time will always be needed,
and to require defendants to request and to demonstrate
the need for additional delay following the return of a
superseding indictment.”
1. Following the return of an original indictment, the
defendant necessarily has much to do. He must retain
counsel. He must consider how to plead. He must evalu-
ate possible lines of defense and locate and interview
witnesses. Usually, his attorney must prepare and file
pretrial motions. The defendant and his counsel must
confer on trial strategy. Consequently, there is a legiti-
mate need for 30 days’ preparation time following the
return of the original indictment in most cases. At the
same time, because the period is measured from the de-
fendant’s first appearance with counsel, a date that gen-
erally occurs within days of indictment, this preparation
time would rarely frustrate society’s interest in swift
justice.
In contrast to an original indictment, a superseding
indictment will often require no further trial preparation
on the part of the defendant. Superseding indictments
22In many instances, both the prosecution and the defense may
prefer for reasons of convenience to have a trial delayed. But
it is quite clear that Congress did not mean to permit the parties
to delay trials, even by mutual agreement, except under certain
specified circumstances. See S. Rep. 96-212, supra, at 28-29. The
decision of the court of appeals enables the parties to circumvent
this policy almost at will by the simple expedient of having a super-
seding indictment with trivial changes returned shortly before the
scheduled trial date.
32
are obtained for a variety of reasons. They are regularly
and appropriately obtained for purposes that have no
material bearing upon the ability of a defendant to be
ready for trial. For instance, they are often, as here,
returned for the sole purpose of correcting a typograph-
ical error or other purely formal error in the original
indictment. The correction of such an error will rarely
create the need for additional preparation time, yet if
Section 3161(c) (2) is read as respondent proposes, trial
must await the expiration of a new, superfluous prepara-
tion period in such cases.**
In the same vein, superseding indictments are fre-
quently returned to eliminate some of the charges. See,
e.g., United States v. Horton, supra. Such action re-
duces rather than increases the burden on the clefense.
Yet under the court of appeals’ interpretation, the Act
would nevertheless require a delay of the trial date in
this situation. Superseding indictments are also used to
drop or add defendants without altering in any manner —
the charges facing the original defendants. See, ¢.g.,
United States v. Guzman, 754 F.2d 482, at 486 (2d Cir.
1985) (dropping defendants on possession count) ; United
States v. Rush, 738 F.2d at 510 (adding a defendant).
Again, these situations create no basis for requiring de-
ferral of trial as to the original or remaining defend-
ants.**
Superseding indictments may also be employed to alter
or add charges. The latter may be additional charges
arising out of a common criminal incident, or may even
be factually unrelated repetitions of the same kind of
23 A new indictment may also simply reinstitute charges that
had been dropped because of the unavailability of a witness. See,
e.g., United States v. Arkus, supra. In such cases the need for
additional defense preparation time turns on the circumstances
of the case; there is no warrant for assuming that the need for
preparation is the same as though the defendant had never been
previously charged.
24 Under Section 3161(h) (7), joinder of new defendants may
permit deferral of the commencement of trial as to all defendants.
33
offense. But the Second Circuit guidelines indicate (see
pages 24-26, supra) that such superseding indictments
also do not necessarily require 30 days of additional defense
preparation time. Frequently, a superseding indictment
simply conforms the indictment more precisely or in
greater detail to the contents of the bill of particulars,
or otherwise reflects the filing or disposition of pretrial
motions. Or a superseding indictment may simply add
substantive counts that already were part of the original
indictment in the form of overt acts charged under an
overarching conspiracy count. In such situations the re
turn of a superseding indictment ordinarily does not add
to the defendant’s task of preparation. Even when an
indictment is superseded to charge a given criminal
transaction in a different manner, the new indictment
does not always require significant additional prepara-
tion; the defendant’s defense may be equally applicable
to the new indictment and his strategy may be totally
unaltered by the change in the offenses charged. And,
as the Second Circuit guidelines point out, even when
completely new criminal transactions are charged, delay
may be unnecessary because the prosecution has given
the defendant sufficient informal notice prior to the re-
turn of the superseding indictment as to the evidence and
theories to be adduced against him. See page 26 note
18, supra.
2. a. With the exception of the court below, the courts
of appeals have uniformly rejected the view that the
return of a superseding indictment automatically trig-
gers a new pretrial preparation period. See page 9 note
6, supra. Several courts have, however, suggested in
dictum that there may be circumstances in which a new
statutory 30-day period would be warranted. For in-
stance in Rush, 738 F.2d at 511, the First Circuit indi-
cated that it might apply Section 3161(c) (2) to a super-
seding indictment if “in a specific case [to do otherwise]
would deprive a defendant of adequate opportunity to
prepare his defense.” Similarly, in United States v. Wil-
34
liford, No. 83-1376 (5th Cir. Feb. 27, 1984) slip op. 4-5,
the Fifth Circuit declined to “announce [or] imply a
general rule that a defendant is never entitled to assert
the protection of § 3161(c)(2) when the government
secures a superseding indictment,” explaining (id. at 5):
Whether a defendant is entitled to a new 30-day
period is a question properly within the province of
the trial judge’s discretion. The judge must give
due consideration to the purpose and intent of the
Speedy Trial Act and carefully examine the details
of the case for any prejudice to the defendant.
To the extent that these cases may suggest that Sec-
tion 3161(c) (2) itself requires a 30-day continuance fol-
lowing arraignment on a superseding indictment that
creates need for additional defense preparation time, we
believe they are erroneous, potentially confusing, and
unnecessary. Such situations are fully accommodated by
the defendant’s right to make known his need for addi-
tional time, invoking the court’s traditional authority to
grant a continuance (in conjunction, where necessary
because the continuance would exceed the Act’s 70-day
outer limit, with Section 3161(h) (8) (B)(iv)). See
ages 19-21, supra. ; '
. The language and structure of the Act, coupled with
relevant policy considerations, strongly suggest that Con-
gress could not have intended the rigid provisions of
Section 3161(c) (2) to provide the vehicle for selectively
affording further preparation time to defendants in those
cases where it may be justified. Applying Section 3161
(c) (2) in the case of some superseding indictments does
not avoid most of the objections to application of Section
3161(c) (2) to all superseding indictments. See pages
13-19, supra. Especially significant in this connection is
the need to interpret the 30-day preparation provision
in a manner that does not foster violations of Section
3161(c) (1). After all, the outside time limit for trial!
is not automatically extended even when the superseding,
35
indictment would warrant a continuance.” It is thus
unlikely that Congress intended that a new 30-day period
be triggered “automatically” in certain cases, based on a
detailed assessment of the facts involved, when the result
would be to force the court and the government into
violation of their own Speedy Trial Act deadline, at least
absent a timely request by a party for a discretionary
ends-of-justice continuance. See pages 17-19 & note 11,
supra.
Moreover, the ostensibly flexible reading of the 30-day
rule suggested by the First and Fifth Circuits would
create unnecessary disruption of district court calendars.
Even when additional trial preparation is warranted fol-
lowing a superseding indictment, a full 30 days often will
be unnecessary. Yet the “flexible” interpretation of Sec-
tion 3161(c) (2) actually deprives the court of the abil-
ity to gauge the amount of additional trial time needed
by the defendant as it is determining whether further
time is needed at all. In addition, this interpretation will
prove difficult for the lower courts to administer, since it
leaves quite unclear when an “automatic” 30-day period
is required and when it is not. One of the virtues of
Section 3161(c) (2) as written—and, we might add, the
only virtue of the Ninth Circuit’s sharply contrasting
construction—is that it is truly clear to the court and
the parties when the right to an automatic preparation
period exists.*°
*° For example, if a superseding indictment is returned on the
50th nonexcludable day, with trial set for the 55th day, the court
is unconstrained by the Act in granting a continuance of up to 15
days if one is deemed appropriate. Any extension of the continu-
ance beyond that, however, while possible under the Act, must be
based upon a finding that it is required by the ends of justice.
*6 The difficulty that would be created by application of the rigid
requirements of Section 3161(c) (2) to trials on superseding in-
dictments is compounded, moreover, because the statute on its face
sharply restricts recognition of any waiver of the right conferred:
trial in less than 30 days’ time is simply prohibited absent “the
defendant[’s] consent[] in writing.” By contrast, if the defend-
36
Nor is there any reason why it would be unfair to re-
quire the defendant—who is in the best position to ap-
praise the impact of a new indictment upon his trial
preparation—to seek a continuance if he needs additionai
preparation time after a superseding indictment. That
is the practice that prevailed prior to the enactment of
the Speedy Trial Act. And the legislative history of the
30-day rule makes clear that the provision was intended
simply to curb an excessive zeal for the promptest pos-
sible scheduling of trials that may have been created by
the enactment of the original provisions of the Act, rather
than any view that other safeguards against hasty trials
were generally inadequate. See pages 20, 23-24, 27-28,
supra. Accordingly, there is no need to press the 30-
ant’s recourse for additional preparation time is to the court’s
power to grant a continuance in the interest of justice, defendant
will be held to have waived any claim if a continuance is not timely
sought and justified. While the exact import of the non-waiver
language of the 30-day rule appears to be an open question, it
seemingly creates some potential for disruption of proceedings by
tardily raised claims. This is particularly troublesome because, as
noted, the applicability of Section 3161(c) (2) to certain supersed-
ing indictments would necessarily be somewhat unclear under the
reading entertained by some of the courts of appeals.
We would suggest that the waiver language of Section 316i (c) (2)
should not be read to overcome the general rule that claims not
raised in district court should not be entertained on appeal, at
least not when the submission made on appeal is that, because of
the nature of the superseding indictment, a second 30-day prepara-
tion period should have been allowed. See United States v. Daly,
716 F.2d 1499, 1506 & n.5 (9th Cir. 1983); cf. United States v.
Powell, No. 83-1307 (Dec. 10, 1984), slip op. 4 n.6 (declining to
consider, inter alia, a claim based on Section 3161(c) (2) not con-
sidered by the court of appeals). On the other hand, a comparison
of Section 3161(c) (2) with the waiver provision applicable to vio-
lations of the 70-day outside time limit for trial, which must be
objected to “prior to trial” (18 U.S.C. 3162(a) (2)), suggests that
tardy invocation of Section 3161(c) (2) may be permissible at the
district court level. Because of this possibility, a “bright line” rule
as to the applicability of Section 3161(c)(2) is particularly
desirable.
37
day rule into service to prevent unduly quick trials on
superseding indictments. A rule that requires the de-
fendant to seek a continuance and justify the amount of
time requested is most compatible with efficient manage-
ment of district court dockets and with the prompt dis-
position policies of the Act. Accordingly, even if the
change effected by a superseding indictment is one that
would support allowance of additional time for defense
preparation, it does not follow that Section 3161(c) (2)
is applicable.
b. A recent decision of the Second Circuit, United
States v. Guzman, 754 F.2d 482 (1985), petition for cert.
pending, No. 84-1604, illustrates the proper approach to
this problem. There, the original indictment charged Guz-
man and two others with a conspiracy of two days’ dura-
tion to possess and distribute cocaine, and with an associ-
ated possession offense. Following a mistrial declared on
unrelated grounds, a superseding indictment was returned
that expanded the duration of the alleged conspiracy to
two years and dropped Guzman’s co-defendants from the
possession count.*7 Guzman sought a continuance of trial,
but the court commenced trial on the superseding indict-
ment one day after it had been returned. 754 F.2d at
484-486.
The court of appeals reversed Guzman’s conviction on
the conspiracy count but affirmed as to the possession
count. It held that Section 3161(c)(2) does not “di-
vest|] a district court of its discretion to grant or re-
fuse a continuance” following a superseding indictment
“where this discretion is exercised in keeping with the
policies underlying specific provisions of the Act.” 754
F.2d at 486. Specifically, the court held that “[{w]hen
a superseding indictment makes only insubstantial changes
in an original indictment, so that a defendant has not
27 The superseding indictment was sought to overcome a defense
objection to admission in evidence of a ledger that recorded nar-
cotics transactions occurring within the extended period of the
conspiracy.
38
been deprived of adequate time to prepare a defense
* * * a district court may exercise its discretion in pro-
ceeding to trial without further delay” (ibid.).
The court concluded that the change in the conspiracy
count was significant because the defendant’s counsel
“specifically indicated to [the district court] that he
needed more time to obtain proof that Guzman was not in
the country until after the enlarged conspiracy period be-
gan”—a “new line of defense, which would not have been
available to him under the original indictment” (754
F.2d at 386). The court held that the “district court
abused its discretion in not granting defendant Guzman
a reasonable continuance to prepare his defense to the
charge of participation in a two-year conspiracy.” /bid.**
On the other hand, Guzman’s conviction on the posses-
sion count was affirmed because “the deletion of co-
defendants * * * from the possession count in the second
indictment changed neither the prosecution’s case, nor
conceivable defenses by Guzman” and the defendant
“could not possibly have been prejudiced because re-
quired to proceed to trial on this charge.” /bid.
3. Under the reading of Section 3161(c) (2) adopted
by the court of appeals in this case, a new 30-day prepara-
tion period is required regardless of the insignificance of
the change effected by the superseding indictment. See
page 7, supra. For the reasons that we have outlined
above (pages 13-30), this reading is plainly false to Con-
28 Although certain of the court of appeals’ language in Guzman
could be read as suggesting that this result was required by Sec-
tion 3161(c) (2), it is apparent upon close reading that the court
looked only to the policy of that section to guide the exercise of
district court discretion on a continuance application. Signifi-
cantly, the court did not require a 30-day delay, but spoke of a “rea-
sonable continuance” and emphasized the particularized showing of
need for additional time that defense counsel had made. The court
also summarized its holding respecting the conspiracy count by
stating that “Guzman should not have been compelled to stand trial
on that count until a reasonable time after this indictment was
filed” (754 F.2d at 484; emphasis added).
39
gress’s intention. On the other hand, under any plausible
alternative reading of the statute the judgment of the
court of appeals must be reversed. Compare pages 33-38,
supra.
Unlike the defendant in Guzman, respondent has never
suggested any reason why the superseding indictment,
which merely corrected a typographical error as to the
date of his prior conviction, made more trial preparation
time necessary. By any standard this change was truly
insubstantial. In any event, because the prosecution had
notified respondent long before trial of the correct date
of his prior conviction, the change made in the super-
seding indictment provides no conceivable basis for a
30-day postponement of the scheduled trial.” If a change
such as the one made here is held to require an in-
flexible 30-day moratorium of commencement of trial,
the policies of the Speedy Trial Act will be flouted, rather
than served.
Il. IN THE CIRCUMSTANCES OF THIS CASE, ANY
VIOLATION OF SECTION 3161(c)(2) WAS HARM-
LESS ERROR
Even if Section 3161(c) (2) could be read to require
a new 30-day defense preparation period in the circum-
stances of this case, the judgment of the court of appeals
could not stand. The court below held that a violation
of Section 3161(c) (2) is “per se” reversible error requir-
ing that the defendant be afforded a new trial (Pet. App.
2a). There is nothing in the statute mandating this in-
2° As we explain in connection with our discussion of the harm-
less error issue (pages 45-47), it is significant that this error
could have been corrected without resorting to a superseding in-
dictment. The return of superseding indictment in such circum-
stances cannot possibly justify delay of the trial. The court of
appeals’ suggestion that the government is required to live with its
election to reindict (Pet. App. 2a) is not responsive to our argu-
ment. Congress could not have intended to require a new 30-day
preparation period in circumstances where reindictment may be
dispensed with.
40
flexible remedy. And in the absence of such a statutory
prescription the court of appeals should have applied the
harmless error rule of Fed. R. Crim. P. 52(a). When a
harmless error analysis is undertaken it becomes clear
that a new trial for respondent is wholly unwarranted.
1. The harmless error doctrine is a fundamental fea-
ture of federal criminal law. Rule 52(a) of the Federal
Rules of Criminal Procedure commands that “[a|ny error
* * * which does not affect substantial rights shall be dis-
regarded” (emphasis added). And 28 U.S.C. 2111 man-
dates that “[o]n the hearing of any appeal * * *, the court
shall give judgment after an examination of the record
without regard to errors or defects which do not affect
the substantial rights of the parties.” In United States
v. Hastings, 461 U.S. 499, 509 (1983), this Court re-
affirmed “the duty of a reviewing court to consider the
trial record as a whole and to ignore errors that are
harmless, including most constitutional violations * * *.”
“Congress is ‘predominantly a lawyer’s body’” (Alber-
naz V. United States, 450 U.S. 333, 341 (1981), quoting
Callanan v. United States, 364 U.S. 587, 594 (1961));
it presumably was aware of Rule 52(a) when it amended
the Speedy Trial Act in 1979. If Congress intended to
preclude application of harmless error analysis it would
have clearly signaled its intent in the Speedy Trial Act.
In fact, nothing in the Act precludes application of a
harmless error analysis to violations of Section 3161
(ec) (2).
The Speedy Trial Act is replete with remedial pre-
scriptions, but none of these provides any sanction for
violations of Section 3161(c)(2). For instance, Section
3162(a)(1) requires dismissal of pending charges if the
arrest-to-indictment time limit established by Section
3161(b) is violated. Section 3162(a)(2) mandates dis-
missal of an indictment when a defendant is not brought
to trial within the period established by Section 3161
(c)(1). (Under either provision dismissal may be with
or without prejudice, as the circumstances of the violation
41
and other statutory considerations dictate.) Section 3162
(b) prescribes disciplinary sanctions fur attorneys who
knowingly delay trial without justification. And when a
defendant is incarcerated for more than 90 non-exclud-
able days before commencement of his trial, the statute
prescribes “automatic review by the court of the condi-
tions of release” as the proper remedy (18 U.S.C. 3164
(c)). Congress plainly knew how to make its intentions
regarding appropriate remedies clear. In light of Con-
gress’s failure even to address the sanction to be im-
posed for violation of Section 3161(c) (2), it is plainly
inappropriate to suppose that Congress intended to ab-
rogate the harmless error rule in this situation.”
Moreover, each of the sanctions set forth in the Act
punishes tardiness rather than haste, and thus imple-
ments the overriding purpose of the Act. And even as to
violations of the Act’s central promptness requirements,
Congress explicitly allowed dismissals without prejudice.
There is accordingly no reason to assume that Congress
required that the courts deal inflexibly with insignifi-
cant violations of Section 3161(c) (2).*' There is simply
no evidence that Congress intended that an otherwise
valid conviction be overturned wholly without regard to
whether the defendant’s trial preparation could have
been assisted by further delay, simply because the de-
fendant ws tried 29 days rather than 30 days after his
first appearance with counsel.
Indeed, so far as we are aware, the legislative history
of the Speedy Trial Act contains no discussion of the
8° Cf. United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir.
1985) (the Speedy Trial Act provides no sanction for a violation
of Section 2161(j); the defendant accordingly must show that he
has been prejudiced by a violation to win reversal of his convic-
tion).
81 It is also arguable that the structured choice of remedy with
respect to violations of Sections 3161(b) and 3161(c) (1) reflected
in Section 3162(a)(1) and (2) is intended to supplant a harmless
error analysis there. No similar argument is available here.
42
appropriate sanction for a violation of Section 3161(c)
(2). — of the defense attorneys who appealed to Con-
in 1979 to assure adequate preparation time sug-
gested that harmless error principles should be inapplica-
ble in this context. See pages 28-29, supra. And while
the Second Circuit guidelines, from which Section 3161
(ce) (2) is derived, did not specifically address the harm-
less error issue, they did allow the district court latitude
to try a case within the first 30 days after an original
indictment if the court found that an early trial date
would “not interfere with the defendant’s or Govern-
ment’s choice of counsel, or the parties’ ability to prepare
for trial without undue pressure.” 1979 Senate Hear-
ings 398. Accordingiy, they tend to Suggest that an
inflexible rule requiring a new trial in every case in
which Section 3161(c) (2) is violated is unwarranted.
2. The Ninth Circuit has og 4 eer = =
does not specify the remedy, if any, for a violation
yen 3161 (c) (2), United States v. Daly, 716 F.2d
1499, 1506 (1983) (“The Act provides no specific guid-
ance as to the appropriate remedy in this case.”).* But
in Daly, which the panel in this case followed (see Pet.
App. 2a), the court of appeals filled the gap in the statu-
tory language, holding that a new trial is a proper remedy
and apparently excluding consideration of harmless error
(716 F.2d at 1506):
he pu . of section 3161(c) (2) is to insure
thet ‘Mvatonte are allowed sufficient time to pre-
32In Daly the court recognized that Section 3162(c) (2), which
prescribes sanctions when “a defendant is not brought to trial
within the time limit required by section 3161(c) as extended by
section 3161(h),” does not appear to apply to violations of Section
$161(c) (2), but ultimately found it unnecessary to decide that
question. 716 F.2d at 1505-1506. The Daly dictum on this point
is clearly correct. See Judicial Conference Guidelines 76 (1984).
We note that Congress did not amend Section 3162(a)(2) in re-
sponse to enactment of Section 3161(c) (2), and that dismissal of
an indictment would be a wholly illogical remedy for any overly
speedy trial.
eee te ae a le WE
43
pare for trial. Consistent with this underlying
policy. Section 3161(c)(2) essentially establishes
that any pretrial preparation period shorter than
30 days is inadequate per se. A violation of section
316!(c)(2) thus should be treated like an errone-
ously denied motion for a continuance, because both
of these procedural errors deny a defendant a fair
trial by forcing him into court before he has had
adequate time for preparation.
We assume, for present purposes, that the court of
appeals is correct insofar as it identified a new trial as
an appropriate remedy in a typical case in which the
defendant has been denied the statutorily prescribed
preparation period. But the analogy that underlies the
court of appeals’ further conclusion that a statutory vio-
lation is “per se” reversible error is faulty and mislead-
ing. To be sure, Section 3161(c) (2) reflects Congress’s
judgment that the specified period of trial preparation
time should be permitted by district courts without re-
gard to whether failure to do so would in a particular
case be unfairly prejudicial or would deny a defendant
due process. The automatic feature of Section 3161(c)
(2) thus ordinarily makes it unnecessary and inappropri-
ate for the district courts to engage in a fact-sensitive de-
termination as to the defendant’s need for time to pre-
pare a defense. Accordingly, it is error to deny the 30-
day trial preparation period when required by the Act.
But it does not follow that such an error may not be
harmless.
Nor does the analogy to an “erroneously denied con-
tinuance” support the court of appeals’ conclusion here.
When not directed otherwise by the Speedy Trial Act,
trial courts have considerable discretion as to whether
a continuance sought by a defendant should be granted.
See United States v. Cronic, No. 82-660 (May 14, 1984),
slip op. 13. Thus, a ruling on the merits that discretion
has been abused and that denial of a continuance was
therefore “erroneous” necessarily imports a determina-
tion that the ruling, and thus the error, was prejudicial.
44
On the other hand, precisely because a violation of Sec-
tion 3161(c) (2) does not depend upon any showing of
prejudice, finding such a violation does not rule out the
possibility of harmless error. Perhaps an appeal based
on a violation of Section 3161(c) (2) does not require the
defendant affirmatively to demonstrate prejudice flowing
from the curtailment of pretrial preparation time. But
this does not prevent the government from shouldering
the burden of demonstrating harmless error.*
8. Any error in the present case was undeniably
harmless. As we have explained (page 4), the super-
seding indictment merely corrected a minor typograph-
ical error creating a colorable inaccuracy as to the date
of respondent’s conviction on the predicate offense.** Re-
33 Although this Court has recognized that there are “circum-
stances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified” (Cronic,
slip op. 10), a violation of the 30-day rule of Section 3161 (c) (2)
plainly is not such an instance. Indeed, in Cronic itself the Court
rejected the view that the circumstances of the case—salient among
which was the fact that defense counsel had only 25 days to prepare
(slip op. 15)—“mandated an inference that counsel was unable to
discharge his duties” (id. at 9). See slip op. 9-18. Cronic, together
with Avery v. Alabama, 308 U.S. 444 (1940), and Chambers Vv.
Maroney, 399 U.S. 42, 54 (1970), confirm that prejudice is not so
certain to flow from any infringement of a 30-day preparation
period as to obviate a harmless error inquiry. Thus, contrary to the
Ninth Circuit’s view expressed in Daly, 716 F.2d at 1506, it is
fallacious to assume that a violation of Section 3161(c) (2), like
an erroneously denied continuance, necessarily “den[ies] a defend-
ant a fair trial by forcing him into court before he has had adequate
time for preparation.” It is also noteworthy that juvenile delin-
quency charges must be tried within 30 days of incarceration, if
the juvenile is detained prior to trial. 18 U.S.C. 5036. Congress
obviously did not believe that juveniles would be prejudiced by such
expeditious proceedings or that they would have inadequate trial
preparation time.
34 In point of fact, neither the original indictment nor the super-
seding indictment purported to state the exact date of the predicate
a
45
spondent and his counsel had every reason to know, from
the outset, the correct date of the conviction on the
predicate offense. In any event, the superseding indict-
ment simply conformed the indictment to the disclosure
made to respondent’s counsel long in advance of the
scheduled trial date. It contained no surprises and added
no charges. It did not increase the defendant’s burden,
open up new lines of possible defense, or affect the
ability of respondent and his counsel to be ready for
trial in any manner. There is no conceivable basis for
claiming that the typographical error in the original in-
dictment in any way impeded respondent’s trial prepara-
tion, or that the return of the superseding indictment
correcting the error disrupted ongoing preparation. Ac-
cordingly, respondent, who was afforded 60 days of prep-
aration time from arraignment to trial, suffered no pos-
sible injury from any violation of the Speedy Trial Act
that may have occurred here. Thus any such violation
should have been deemed harmless, and respondent’s con-
viction should have been affirmed.
Significantly, respondent has never even claimed that
the superseding indictment created any need for a con-
tinuance because of some alteration in the charge. In-
stead, respondent’s counsel simply “demanded” a 30-day
continuance after the prosecutor advised him of the
Ninth Circuit’s decision in Arkus. Av his arraignment
on the superseding indictment, respondent did suggest
that he needed additional preparation time. See pages
5-6, supra. But the reasons given cannot furnish a
basis for holding that the denial of his Section 3161(c)
(2) motion was reversible error because they are wholly
unrelated to the return of the superseding indictment.
conviction. Rather, the original indictment stated that the prior
judgment of conviction was entered “on or about December 17,
1981,” whereas the superseding indictment substitutes the phrase
“on or about December 7, 1981” (E.R. 4, 7).
46
In any event, the district court did not abuse its discre-
tion in denying a continuance here.*
b. That any violation of Section 3161(c) (2) in this
case should be deemed harmless is especially clear be-
cause the defendant was afforded more than the 30 days
required by the statute between his arraignment on the
original indictment and the commencement of trial on
the superseding indictment. Arguably the nature of the
statutory right involved makes it difficult in most cases
to assess claims of harmless error—as for instance when
the defendant is tried on the 29th day instead of the
30th following an original indictment. But that diffi-
culty largely evaporates when the defendant has at least
once been afforded a full 30 days’ preparation time. In
such cases the court is not required to make the some-
what subjective determination that a shortfall of a cer-
tain magnitude in preparation time should be deemed
de minimis. Rather, the court need consider only whether
the nature of the change in the indictment is such that
there simply was no need for additional preparation
time.
A claim of inadequate preparation time in connection
with a superseding indictment is distinctive in another
respect as well, at least where, as here, it was not even
necessary to resort to a superseding indictment. Rather
than resubmitting the case to the grand jury, under
35 Respondent claimed, first, that he was not prepared to defend
Count 2 because he needed additional time to review his immigra-
tion file. But the district court accepted the government’s respon-
sive offer to dismiss Count 2 and thereby mooted respondent’s plea
for extra time on that score. See page 6, supra.
Respondent also claimed that he needed time to secure a finger-
print expert who could determine if he was, in fact, the same person
who was convicted of illegal entry on December 7, 1981. Because
the court made reasonable efforts to accommodate respondent in
this regard without postponing trial (see page 6, supra), and
because respondent ultimately decided to stipulate that he was in-
deed the person convicted of the predicate offense on December 7,
1981, the district court’s ruling cannot be faulted.
RE Gt tne ie ae ee ee alee
et kee tele oe
Cam ARG SO see Bee!
47
Ninth Circuit precedent the prosecutor could have asked
the district court simply to “amend” the original indict-
ment to correct the typographical error.*® And because
there is no need for rearraignment following such an
amendment, it is inconceivable that Section 3161 (c) (2)
would have any further application in such a case. Al-
ternatively, the government could simply have proceeded
to trial without correcting the typographical error. Be-
cause the indictment did not even purport to state the
exact date of the predicate conviction, and because the
discrepancy was only ten days, the variance between the
indictment and the proof would surely have been deemed
immaterial.** Particularly in the context of a harmless
error analysis, it is no answer to observe, as the court of
appeals did (Pet. App. 2a), that the government is
bound by its decision to seek reindictment rather than
pursuing either of these alternative courses. Given the
ready availability of these alternatives there can be no
contention that respondent was deprived of a substantial
right here.
36 See, e.g., United States v. Dawson, 516 F.2d 796, 799-804,
cert. denied, 423 U.S. 855 (1975); United States v. Buble, 440 F.2d
405, cert. denied, 404 U.S. 828 (1971).
387 See, e.g., United States v. Cochran, 697 F.2d 600, 604-605 (5th
Cir. 1983) ; United States v. Ward, 676 F.2d 94, 96-97 (4th Cir.),
cert. denied, 459 U.S. 835 (1982); United States v. Alien, 596 F.2d
227, 231 (7th Cir.), cert. denied, 444 U.S. 871 (1979); United
States v. Wright, 573 F.2d 681, 685 (1st Cir.), cert. denied, 436
U.S. 949 (1978).
48
CONCLUSION
The judgment of the court of appeals should be re-
versed.
Respectfully submitted.
Rex E. LEE
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
JOSHUA I. SCHWARTZ
Assistant to the Solicitor General
PATTY MERKAMP STEMLER
Attorney
May 1985
la
STATUTORY APPENDIX
Pertinent provisions of the Speedy Trial Act of
1974, as amended, 18 U.S.C. 3161 et seq., provide:
§ 3161. Time limits and exclusions
(a) In any case involving a defendant charged
with an offense, the appropriate judicial officer,
at the earliest practicable time, shall, after con-
sultation with the counsel for the defendant and
the attorney for the Government, set the case for
trial on a day certain, or list it for trial on a
weekly or other short-term trial calendar at a
place within the judicial district, so as to assure
a speedy trial.
(b) Any information or indictment charging
an individual with the commission of an offense
shall be filed within thirty days from the date
on which such individual was arrested or served
with a summons in connection with such charges.
If an individual has been charged with a felony
in a district in which no grand jury has been
in session during such thirty-day period, the
period of time for filing of the indictment shall
be extended an additional thirty days.
(c)(1) In any case in which a plea of not
guilty is entered, the trial of a defendant charged
in an information or indictment with the com-
mission of an offense shall commence within sev-
enty 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, whichever date last occurs. If
a defendant consents in writing to be tried be-
fore a magistrate on a complaint, the trial shall
commence within seventy days from the date of
such consent.
2a
(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 de-
fendant first appears through counsel or ex-
pressly waives counsel and elects to proceed
ee roe - . .
(d)(1) If any indictment or information 1s
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 de-
fendant or individual charging him with the
same offense or an offense based on the same con-
duct or arising from the same criminal episode,
or an information or indictment is filed charging
such defendant with the same offense or an of-
fense based on the same conduct or arising from
the same criminal episode, the provisions of sub-
sections (b) and (c) of this section shall be ap-
plicable with respect to such subsequent com-
plaint, indictment, or information, as the case
may be.
(2) If the defendant is to be tried upon an
indictment or information dismissed by a trial
court and reinstated following an appeal, the
trial shall commence within seventy days from
the date the action occasioning the trial becomes
final, except that the court retrying the case
may extend the period for trial not to exceed
one hundred and eighty days from the date the
action occasioning the trial becomes final if the
unavailability of witnesses or other factors re-
sulting from the passage of time shall make trial
within seventy days impractical. The periods of
delay enumerated in section 3161(h) are excluded
3a
in computing the time limitations specified in
this section. The sanctions of section 3162 apply
to this subsection.
(e) If the defendant is to be tried again fol-
lowing a declaration by the trial judge of a mis-
trial or following an order of such judge for a
new trial, the trial shall commence within sev-
enty days from the date the action occasioning
the retrial becomes final. If the defendant is
to be tried again following an appeal or a col-
lateral attack, the trial shall commence within
seventy days from the date the action occasion-
ing the retrial becomes final, except that the
court retrying the case may extend the period
for retrial not to exceed one hundred and eighty
days from the date the action occasioning the
retrial becomes final if unavailability of wit-
nesses or other factors resulting from passage of
time shall make trial within seventy days im-
practical. The periods of delay enumerated in
section 3161(h) are excluded in computing the
time limitations specified in this section. The
sanctions of section 3162 appiy to this subsection.
* * * * *
(h) The following periods of delay shall be ex-
cluded in computing the time within which an
information or an indictment must be filed, or
in computing the time within which the trial of
any such offense must commence:
* * * * *
(6) If the information or indictment is dis-
missed upon motion of the attorney for the Gov-
ernment and thereafter a charge is filed against
the defendant for the same offense, or any offense
required to be joined with that offense, any pe-
4a
riod of delay from the date the charge was dis-
missed to the date the time limitation would
commence to run as to the subsequent charge had
there been no previous charge.
* * * * *
(8) (A) Any period of delay resulting from a
continuance granted by any judge on his own
motion or at the request of the defendant or his
counsel or at the request of the attorney for the
Government, if the judge granted such continu-
ance 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. No such period of delay result-
ing from a continuance granted by the court in
accordance with this paragraph shall be exclud-
able under this subsection unless the court sets
forth, in the record of the case, either orally or
in writing, its reasons for finding that the ends
of justice served by the granting of such con-
tinuance outweigh the best interests of the public
and the defendant in a speedy trial.
(B) The factors, among others, which a judge
shall consider in determining whether to grant a
continuance under subparagraph (A) of this
paragraph in any case are as follows:
(i) Whether the failure to grant such a
continuance in the proceeding would be
likely to make a continuation of such pro-
ceeding impossible, or result in a miscar-
riage of justice.
(ii) Whether the case is so unusual or so
complex, due to the number of defendants,
the nature of the prosecution, or the exist-
ence of novel questions of fact or law, that
5a
it is unreasonable to expect adequate prep-
aration for pretrial proceedings or for the
trial itself within the time limits established
by this section.
(iii) Whether, in a case in which arrest
precedes indictment, delay in the filing of
the indictment is caused because the arrest
occurs at a time such that it is unreason-
able to expect return and filing of the in-
dictment within the period specified in sec-
tion 3161(b), or because the facts upon
which the grand jury must base its deter-
mination are unusual or complex.
(iv) Whether the failure to grant such a
continuance in a case which, taken as a
whole, is not so unusual or so complex as to
fall within clause (ii), would deny the de-
fendant reasonable time to obtain counsel,
would unreasonably deny the defendant or
the Government continuity of counsel, or
would deny counsel for the defendant or the
attorney for the Government the reasonable
time necessary for effective preparation, tak-
ing into account the exercise of due dili-
gence.
(C) No continuance under paragraph (8) (A)
of this Subsection shall be granted because of
general congestion of the court’s calendar, or
lack of diligent preparation or failure to obtain
available witnesses on the part of the attorney
for the Government.
* * * * *
§ 3162. Sanctions
(a)(1) If, in the case of any individual
against whom a complaint is filed charging such
6a
individual with an offense, no indictment or in-
formation is filed within the time limit required
by section 3161(b) as extended by section 3161
(h) of this chapter, such charge against that
individual contained in such complaint shall be
dismissed or otherwise dropped. In determining
whether to dismiss the case with or without
prejudice, the court shall consider, among others,
each of the following factors: the seriousness of
the offense; the facts and circumstances of the
case which led to the dismissal; and the impact
of a reprosecution on the administration of this
chapter and on the administration of justice.
(2) If a defendant is not brought to trial
within the time limit required by section 3161
(c) as extended by section 3161(h), the informa-
tion or indictment shall be dismissed on motion
of the defendant. The defendant shall have the
burden of proof of supporting such motion but
the Government shall have the burden of going
forward with the evidence in connection with
any exclusion of time under subparagraph 3161
(h) (8). In determining whether toe dismiss the
case with or without prejudice, the court shall
consider, among others, each of the following
factors: the seriousness of the offense; the facts
and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on
the administration of this chapter and on the
administration of justice. Failure of the de-
fendant to move for dismissal prior to trial or
entry of a plea of guilty or nolo contendere shall
constitute a waiver of the right to dismissal un-
der this section.
b= U. S. GOVERNMENT PRINTING OFFice; 1985 461531 10214
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.