# Petitioners Brief — United States v. Rojas-Contreras > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0159%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 231 ## 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0159%3A5. Public record. Not legal advice.