Respondents Brief — United States v. Rojas-Contreras

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

: i f{L Ep

JUL i / i985

No. 84-1023

RY CLERK

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1984

UNITED STATES OF AMERICA,

Petitioner,

FERNANDO RoJAS-CONTRERAS,

Respondent.

On Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

BRIEF OF THE RESPONDENT

JuDY CLARKE

Federal Defenders of San Diego, Inc.

101 West Broadway, Suite 440

San Diego, California 92101-8297

(619) 234-8467

Counsel for Respondent

Appointed by this Court

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether a defendant can be forced to trial on a

superseding indictment in less than the thirty-day mini-

mum defense preparation period guaranteed by 18

U.S.C. §3161(¢c)(2)?

2. Whether forcing a defendant to trial in violation of

the specific and rigid mandate of Congress which guaran-

tees a thirty-day minimum defense preparation period

can ever be deemed harmless error?

TABLE OF CONTENTS

Page

QuasT10es PRESENTED. . oo. 2c ccccccccccccccccscose i

TABLE OF AUTHORITIES. ............00ee0ee005 ee ili

JUDGMENT DOEGU, « oc cccccccccteeseeteseseseee l

CONSTITUTIONAL AND STATUTORY PROVISIONS

EVOEIED . oc cccecteecencecseussenaeeel l

STATEMENT OF THE CASE ......cccccccccccccccccces 2

Arrest, Presentment, Indictment .............. 2

Superseding Indictment ..................0000. 3

BUEEE ocvccceceoseteeceseoeunnseuea 8

SUMMARY OF ARGUMENT. ..........ecececeecccceees 10

ARGMAEE, ...0 cc cccocesceccesennesceusneenenneee 14

I. THe Speepy TRIAL Act GUARANTEES THaT A

DEFENDANT CANNOT BE ForceED To TRIAL IN

Less THAN TuHiRTY Days From THE Date THE

DEFENDANT First APPEARS THROUGH COUNSEL

On THE INDICTMENT ON WHICH TRIAL ULTI-

MATELY COMMENCES ...........ceeceeseeceees 14

The History and Purpose of 18 U.S.C. §3161(cX2) 14

Statutory Interpretation of 3161(c\(2) ........... 19

Practical Interpretation of 3161(c)(2) ............ 22

18 U.S.C. §3161(d)(1), (h)(6) and (h\(8(B)(iv) are not

Applicable to this Case ...............02200eee- 27

3161(c)(2) Also Applies to a Superseding Indictment

Filed After the Original Indictment has been Dis- -

II. Forctnc A DEFENDANT To Go To TRIAL IN Vio-

LATION OF 18 U.S.C. §3161(c)(2) CAN NEVER BE

DEEMED HARMLESS ERROR ..........-.eee00- 40

COSCRAISNOS . o.oo cc ccctcccedbeebeus buena 48

ADPGRMBER . occ cccccceccescecscsseuneee la

—— ee ee ee ——— —

TABLE OF AUTHORITIES

Barker v. Wingo, 407 U.S. 514 (1972). ............555. 44

Bell v. United States, 349 U.S. 81 (1955). ............. 21

Bollenbach v. United States, 326 U.S. 607 (1946) ...... 42

Boykin v. Alabama, 395 U.S. 238 (1969).............. 24

Cabell v. Markham, 148 F.2d 737 (2d Cir.) (Hand, J.),

aff'd, 326 U.S. 404 (1945) ....... 2... eee ee eee

Carpenters v. United States, 330 U.S. 395 (1947).. 41, 42, 46

Chapman v. California, 386 U.S. 18 (1967) ........... 41

Connecticut v. Johnson, 460 U.S. 73 (1983) ........... 41

Cuyler v. Adams, 449 U.S. 433 (1981).............--. 38

Ex parte Bain, 121 U.S. 1 (1887) ............6--- eee, 7

Gideon v. Wainwright, 372 U.S. 335 (1963)............ 41

Hamling v. United States, 418 U.S. 87 (1974) ......... 41

Jackson v. Virginia, 443 U.S. 307 (1979) .............. 41

Liparota v. United States, 105 S.Ct. 2084 (1985)....... 21

Kotteakos v. United States, 328 U.S. 750 (1946)........ 41

Marbury v. Madison, 1 Cranch 137 (1803) ............ 44

Payne v. Arkansas, 356 U.S. 560 (1958) .............. 41

Perrin v. United States, 444 U.S. 37 (1979).......... 22, 29

Rewis v. United States, 401 U.S. 808 (1971)........... 21

Russello v. United States, 464 U.S. 16 (1983).......... 29

Sandstrom v. Montana, 442 U.S. 510 (1979) .......... 41

Time, Inc., v. Regan, 468 U.S. —_, 104S.Ct. 3262 (1984) 39

Tumey v. Ohio, 273 U.S. 510 (1927) ..........-0 22 e eee 41

United States v. Arambula-Alvarado, 677 F.2d 51 (9th

EEE ES PEE Ee Te ee 2, 24

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

EN ees dbddenees 5, 7, 8, 20, 22, 24

United States v. Burton, 584 F.2d 485 (D.C. Cir. 1978),

cert. denied, 439 U.S. 1069 (1979). ............... 44

United States v. Campbell, 706 F.2d 1138 (11th Cir. 1983) 34

United States v. Clifford, 664 F.2d 1090 (8th Cir. 1981). 34

United States v. Daly, 716 F.2d 1499 (9th Cir. 1983).... 9, 45

United States v. Dawson, 516 F.2d 796 (9th Cir.), cert.

denied, 423 U.S. 855 (1975) ..... 0... . cece eee eee 7

United States v. Dennis, 625 F.2d 782 (8th Cir. 1980)... 33

United States v. Feldman, 761 F.2d 380 (7th Cir.

ee CC Ue ets eb ecccces 20, 29, 34, 35

TABLE OF AUTHORITIES Continued

Page

United States v. Gallo, No. 83-3288 (6th Cir. May 29,

ce teuel leee te ihe elie eli | 20

United States v. Gasca-Kraft, 522 F.2d 149 (9th Cir. 1975) 6

United States v. Gradwell, 243 U.S. 476 (1917) ........ 21

United States v. Guzman, 754 F.2d 482 (2d Cir.), petition

for cert. filed, 53 U.S.L.W. 3759 (U.S. Apr. 9, 1985)

(No. 84-1604). ............... ic dbiéeins 19, 20, 25, 30

United States v. Harris, 724 F.2d 1452 (9th Cir.

' United States v. Hasting, 461 U.S. 499 (1983) ......... 41

United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984)... 35

United States v. Hencye, 505 F.Supp. 968 (N.D. Fla.

ins har dsinandilt kh the cdeeenes Uddenesedeoes 36

United States v. yy og? m 619 byt - Rae

petition for cert. , .S.L. W. 3826 (U.S. f

1985) No ND oo ns ee ee ends Ae

United States v. Horton, 676 F.2d 1165 (7th Cir. 1982),

cert. denied, 459 U.S. 1201 (1983)........ 20-21, 34, 35

United States v. McCown, 711 F.2d 1441 (9th Cir. 1983) 36

United States v. Naftalin, 441 U.S. 768 (1979)......... 18

United States v. Ortiz-Martinez, 557 F.2d 214 (9th Cir.

United States v. Pollock, 726 F.2d 1456 (9th Cir. 1984).. 35

United States v. Pringle, 751 F.2d 419 (1st Cir. 1984)... 34

United States v. Rabb, 680 F.2d 294 (3d Cir.), cert. denied,

Se EEE W6 Wh 04d KO dea iccescscdocccess 22

<a v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. ,

United States v. Richmond, 735 F.2d 208 (6th Cir.

ns 604d dhe dhbekhde bil secesate 60008ets 21-22

United States v. Rush, 738 F.2d 497 (1st Cir. 1984), cert.

denied, 105 S.Ct. 1355 (1985). .............. 19, 21, 34

United States v. Sebastian, 428 F.Supp. 967 (W.D.N.Y.),

aff'd on other grounds, 562 F.2d 211 (2d Cir. 1977). 34

United States v. Timmreck, 441 U.S. 780 (1979) ....... 24

United States v. Todisco, 667 F.2d 255 (2d Cir. 1981), cert.

denied, 455 U.S. 906 (1982) ..............cceeeee 19

United States v. Wilks, 629 F.2d 669 (10th Cir. 1980)... 36

TABLE OF AUTHORITIES Continued

United States v. Williford, No. 83-1376, cert. denied, 105

S.Ct. 270 (1984) 2.2... cece e cece eee eee e een eees 19

United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir.

DNS ti ona dadiesennhawennatsedanteeaseerrs

United States v. Wooten, 688 F.2d 941 (4th Cir. 1982) 20, 36

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V1.............+-+-- 1, 23, 25, 39, 44

STATUTES

Title 8, U.S.C. §

ee bil d 6b cb ecestethinndes doccusens 1, 2, 6, 9, 25

a Os ic cicdecededbvccdssevecteesucedoeune 2, 6, 7

Title 18 U.S.C. §

nc onne ns Uenee ahem 10

a co nkéeeesnecsencecdeceseGuuren 32, 34, 35, 45

EL isa, oh cneys cnde senes 11, 15, 19, 20, 30, 33, 39

BIGHCE) (IDTAE). . ccc cccccccccccccccccccceccccecseces 15

EE erererrerrT TTT passim

Sc cavideccdcctivecboccdddeesccsensste passim

I Ma bic bie ccdecddsesocsccudevesseesen came 15

cs an cn ckbaccasdvedsereseeoscaues ewan 15

Pn < oc cvcccccccceccccusccoserstesencess passim

EE cas . ccna ndéaeecdoceose senhecqoosenedageee 37

EE anc ccccccucenceeuvesseseseucessvenns 38

3161(hX SMB) iii)... ec ce cece cece eee eeccees 32, 37

SIGICHNSM BMV)... cece cece ccc cccccccccecscnes passim

a, onnh 060s bcasccuvedcedscecnssecewens 15

hee ee pc coereneneesensécanednees 45, 46

Title 28, U.S.C. § 2111 20... . cece cece ee eee eee e eens 41

RULES

Fed. R. Crim. P. 48(b). . 0... 2... c cece e eee eeeeees 12, 32

Fed. R. Crim. P. 50(b).. 1.6... eee ee eee eee eee eens 44

Fed. R. Crim. P. 52 ... 2... cece cece ccc cc cececccees 41

TEXTS

R.L. Misner, Speedy Trial—Federal and State Practice -

SEE JET Ets di ceuds doh angneks ds0d Sh4Ks e085 48

R. Traynor, The Riddle of Harmless Error (1970)...... 42

TABLE OF AUTHORITIES Continued

ARTICLES

Frase, The Speedy Trial Act of 1974, 43 U. Chi. L. Rev.

otek Gib haicug chbe¥ es deus Ek 660s Sakae 360

ay > eer Come * om vane 7 the Speedy pa

1974: 1 ircu xperience,

PE ink-66 dda Cheaueenashahanesdanessuan 26

Partridge, Legislative His of Title I of the Speedy

Trial Act of 1974 (Federal Jcdicial Center 1980). ae

MISCELLANEOUS

125 Cong. Rec. 15452-15467 (June 19, 1979) ........... 17

Comm. on the Admin. 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.

1981 and Apr. 1983 and rev. 1979 with amendments

SEO, CEs bo ec vakvevasccésecsvevscceses 30

H.R. Rep. No. 390, 96th Cong., Ist Sess. 1 (1979) ..... 16

Implementation of the Speedy Trial Act, Hearings Before

the Subcomm. on 5 of the House Comm. on the

Judiciary, 97th Cong., lst Sess. 64 (1981) ........ 43

Proposed Amendments to the Speedy Trial Act of 1974:

Hearings Before the Subcomm. on Crime of the

House Comm. on the Judiciary, 96th Cong., 1st

Poa ke cucassvcucne wedi tne 15-17, 26, 38

Pub./L. No. 93-619, 1974 U.S. Code Cong. & Ad. News

ine. cekintks sikh 65 dd ddeiied bok dda tbeds wo 45

S. 961 96th Cong., Ist Sess., 125 Cong. Rec. 7951 (Apr. 10,

bh6s db edherndiddenedss ses cdeseeebuweneds- 15

S. 1028, 96th Cong., Ist Sess., 125 Cong. Rec. 8841 (Apr.

Ds ttenhensiseciihtiasdbeedediosesees 15

Second Circuit Judicial Council S y Trial Act Coordi-

ing 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., lst Sess. 386-436 (1979)...... 16-18, 40, 46

Speedy Trial Act of 1974: Hearings Before the Subcomm.

on Crime House Comm. on the Judiciary, 93d

Cong., 2d OS rye ee eer ee ee 35

S. Rep. No. 212, 96th Cong., Ist Sess. 1 (1979) .... passim

vii

TABLE OF AUTHORITIES Continued

The Speedy Trial Act Amendments of 1979: Hearings

Before the Sen. Comm. on the Judiciary on S. 961

lland S. 1028, 96th Cong., Ist Sess. 31

CE o 60nd dass veedeh $606be0s saceusees 14-18, 21, 43

1980-1984 Annual Report of the Director (Administrative

Office of the U.S. Courts). ...........-eeeeeeeees

— LR A OE NE th Fan i ti

JUDGMENT BELOW

On May 23, 1983 the Respondent was sentenced to a

term of imprisonment for one year and one day [R.T.S. 6;

C.R. 17; DKT. 16].}

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Sixth Amendment provides in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial. . . and to

have the Assistance of Counsel! for his defence.

Titie 8, U.S.C. §1325 provides in pertinent part:

Any alien who (1) enters the United States at any

time or place other than as designated by immigra-

tion officers . . . shall, for the first commission of any

such offenses, be guilty of a misdemeanor and upon

conviction thereof be punished by imprisonment for

not more than six months, or by a fine of not more

than $500, or by both, and for a subsequent commis-

sion of any such offenses shall be guilty of a felony and

upon conviction thereof shall be punished by

imprisonment for not more than two years, or by a

fine of not more than $1,000, or both.

The Speedy Trial Act provides in pertinent part (18

U.S.C. §3161(c)(2)):

Unless the defendant consents in writing to the

contrary, the trial shall not commence less than

thirty days from the date on which the defendant first

1“R.T.S.” refers to the Reporter's Transcripi of the sentencing pro-

ceeding; “R.T.Tr.” refers to the Reporter's Transcript of the arraign-

ment and plea on the superseding indictment and the trial. “C.R.”

refers to the district court Clerk’s Record filed in the court of appeals.

“DKT.” refers to the Docket Entries which reflect all filings in the case.

The docket entries are contained in the last three pages of the Clerk's

Récord (“C.R.” tab number “DKT”).

appears through counsel or expressly waives counsel

and elects to proceed pro se.

STATEMENT OF THE CASE

Arrest, Presentment, Indictment

On February 13, 1983 Respondent was arrested by

agents of the United States Border Patrol. Agent William

Burt arrived shortly after Respondent’s apprehension

and recognized him as someone he had arrested before.

Respondent was taken to the Border Patrol station where

he was interrogated by Border Patrol Agent Stark who

was aware of Respondent’s prior record of immigration

law violations and his true identity [R.T.Tr. 156-162;

184-185; 261-264; 281-282]. The following day a complaint

was filed charging Respondent with a violation of 8

U.S.C. $1325 (felony illegal entry) and 8 U.S.C. §1326

(reentry after deportation). The predicate conviction giv-

ing rise to the felony 1325 charge was alleged to be March

1, 1981 (copy attached as Appendix).2 On February 18,

1983 the grand jury for the Southern District of California

returned a two-count indictment charging Respondent

with the two violations of the immigration laws to wit:

felony illegal entry and reentry after deportation. Count

one of the indictment, felony illegal entry, charged that

Respondent knowingly and unlawfully entered the

United States and that before said illegal entry had been

convicted of the crime of illegal entry “on or about

December 17, 1981” [C.R. 3].3 The indictment was filed

* The charge of felony illegal entry in violation of 8 U.S.C. § 1325

requires the government to prove a valid prior conviction for illegal

entry. United States v. Arambula-Alvarado, 677 F.2d 51 (9th Cir.

1982). See infra p. 24.

* Count one of the February 18, 1983 indictment is also set forth in

Petitioner's Brief [hereinafter cited as Pet. Br.] at 5n.1.

and the case assigned to a district court judge.* The grand

jury recommended a bond in the amount of $3,000 [DKT.

3]. On the same date Respondent appeared with counsel

for arraignment on the indictment and entered a not

guilty plea as to both counts [DKT. 4]. On February 28,

1983 Respondent appeared before the assigned district

court judge and a date of April 11, 1983 was set for hearing

motions and trial setting. No motion was filed and on

April 11, 1983 the case was set for trial on Tuesday, April

19, 1983 [DKT. 5-6].

Superseding Indictment

On Friday, April 15, four days before the previously

scheduled trial date, the grand jury returned a supersed-

ing indictment charging Respondent with two violations

of the immigration laws to wit: felony illegal entry and

reentry after deportation [C.R. 8]. An order setting a

corporate surety/cash bail in the amount of $3,000 as

recommended by the grand jury was filed on the same

date [DKT. 8]. Count one of the superseding indictment

charged the February 13, 1983 felony illegal entry but

changed the date for the predicate conviction from

December 17, 1981 to December 7, 1981 [C.R. 3, 8].5 The

4 Inthe Southern District of California the clerk of the court makes a

random assignment of a district court judge to each case when the

indictment is filed. This random assignment is accomplished by the

filing clerk drawing a sealed envelope, which contains the initials of a

district court judge, from a box containing a designated percentage

of cards for each of the judges. When either a superseding indict-

ment or a “notice of related case” is filed, the judge originally

assigned to the case is reassigned without benefit of the random

selection procedure.

5 The prosecutor referred to this change as a “typo error” [R.T.Tr.

15]. Without support or justification Petitioner [Pet. Br. at 5] asserts that

defense counsel “did not deny he had been advised of the

first indictment was outstanding at the time the supersed-

ing indictment was filed and remained in existence until

dismissed following Respondent’s sentencing on May 23,

1983 [DKT. 16].

On Monday, April 18, 1983, one day before the trial date

scheduled for the original indictment, Respondent was

arraigned on the superseding indictment and entered a

not guilty plea as to both counts S1 and S2 [R.T.Tr. 5-6;

DKT. 9].° Immediately following arraignment, Respond-

ent’s counsel made a demand for the thirty-day prepara-

typographical error in the original indictment well in advance of the

scheduled trial date.” Petitioner ignores the fact that the prosecutor

never asserted that counsel was notified of any error, the second

indictment was not returned until the Friday before the Tuesday trial

date and that no occasion arose for defense counsel to affirm or deny

any notice of the error.

6 Responden: was arraigned before the district court following the

February 18, 983 indictment. The arraignment was as follows:

THECLERK: Mr. Rojas are informed that a supercedin

SER or:

entry, felony, and in count 2, ing a de en

found in the United States. , a

~ You are further advised you are entitled to have a trial by jury, to

be represented by counsel at all stages of the proceedings

before this court, and to have witnesses summoned to testify in

your behalf.

How do you plead to count 1 of the superceding indictment? Are

you guilty or not guilty?

THE DEFENDANT (throughinterpreter): No.

THECOURT: Notguilty?

THEDEFENDANT: Notguilty.

THE CLERK: Not guilty. How do you plead to count 2 of the

superceding indictment? Are you guilty or not guilty?

THEDEFENDANT: No. Not guilty.

THE COURT: Okay. This matter is set fortrial tomorrow.

(R.T.Tr. 5-6] The docket entires refer to the superseding indictment

counts as S1 and S2 and the counts on the first indictment as 1 and 2.

tion period provided for under the Speedy Trial Act and

the Ninth Circuit’s decision in United States v. Arkus.?

Respondent’s counsel informed the court that “there isa

slight difficulty because with [sic] the superceding indict-

ment” and made the demand for the thirty-day period

provided under the statute and the case law.®

In addition to reliance upon the thirty-day defense

preparation period and United States v. Arkus, defense

counsel informed the court that neither the “A” file® nor

the report of the fingerprint expert had been made avail-

able. Defense counsel informed the court that certain

discovery in the case had just been made available, by way

of a telephone conversation with the prosecutor, the pre-

vious Thursday and Friday [R.T.Tr. 10-12].

The prosecutor informed the court that while the “A”

file would not be available until the afternoon of April 18,

1983, discovery provided on March 21, 1983 reflected the

December 7, 1981 prior conviction [R.T.Tr. 15]. Respond-

ent was not provided with a copy of his statement until

7675 F.2d 245 (9th Cir. 1982).

8 to Petitioner's assertion [Pet. Br. at5n.3], the record does

not paren fe defense counsel was unaware of the decision in United

States v. Arkus before the prosecutor called attention to it. The record

reflects that defense counsel stated “as counsel for the government

knows, I’ve already apprised him, and I think the court is aware of the

Arcus (phonetic) decision of the Ninth Circuit, A-R-C-U-S [sic]. I have

a copy if the court would need to be refreshed with it. [R.T.Tr. 6]

9 The “A” file is a comprehensive file maintained by the Immigration

and Naturalization Service which contains information regarding any

and all immigration service contacts with the alien including reports

of prior convictions and deportations [R.T.Tr. 10, 21). The trial court

apparently initially believed that the “A” file contained only deporta-

tion records unti: defense counsel corrected the misapprehension

(R.T.Tr. 21].

March 31, 1983 [R.T.Tr. 17].!° The government took the

position that the Respondent had not been prejudiced in

any way and that defense counsel had “access” to the dates

of the convictions and “certainly an opportunity” to pre-

pare [R.T.Tr. 18]. When the court wanted to hear further

about the “A” file, the prosecutor stated that if the court

had a “problem” with the fact defense counsel had not

seen the file the government had no objection to dismiss-

ing count two.!1 Count S2 was dismissed by the court as a

condition of the denial of the motion to continue [R.T. Tr.

23, DKT. 9].

Defense counsel's concern that necessary reports relat-

ing to prior similar acts would be found in the “A” file was

countered by the prosecutor’s swhmission that “any

reports in the ‘A’ file would be no more than the reports

provided to counsel” in connection with previous cases

involving Respondent.!2 The court found it would be

1° Tt is notable that according to Petitioner's calculations and the-

ory of argument the defense preparation period guaranteed by 18

U.S.C. § 3161(c)(2) expired on March 20, 1983, one day before discov-

ery was provided with respect to Respondent's December 7 prior

conviction and eleven days before Respondent was provided with a

copy of his statement [Pet. Cert. at 9].

‘In the Ninth Circuit, a collateral attack on the legality of the

deportation which forms the basis for the 8 U.S.C. § 1326 violation is

permitted. United States v. Gasca-Kraft, 522 F.2d 149 (9th Cir. 1975);

United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980).

The prosecutor moved to dismiss rather than try to provide “ade-

quate discovery in the eleventh hour before trial” stating that the

dismissal motion was made “because the government cannot realize

any additional time in custody in regards to count two” [R.T.Tr. 18].

See United States v. Ortiz-Martinez, 557 F.2d 214 (9th Cir. 1977)

(cumulative punishments for single transaction violating both 8

U.S.C. § 1325 and 8 U.S.C. § 1326 prohibited).

'2 According to the prosecutor, in two cases Respondent had been

improper to start trial on S2 (8 U.S.C. $1326), the count

identical to count two of the first indictment, without a

review of the “A” file, but that in regard to the prior act

problems raised by the proof of S1, it would be “spec-

ulative” that the deportation file contained more than the

discovery provided to counsel. The court relied on the fact

that “clearly on two and probably on three” occasions

Federal Defenders represented Respondent [R.T.Tr. 26].

Defense counsel informed the court he only had some of

the reports [R.T.Tr. 21].

With respect to the thirty-day defense preparation

period of 18 U.S.C. §3161(c)(2), the prosecutor took the

position that United States v. Arkus was distinguishable.

The prosecutor argued that the defendant had not shown

prejudice and that a superseding indictment was not even

required because the indictment could have been

amended [R.T.Tr. 18-20].!% Finding that the first issue

before the court was prejudice to the defendant by virtue

of trial on the superseding indictment one day after

represented by other attorneys with Federal Defenders of San Diego

two years earlier. The prosecutor spoke with “some reasonable cer-

tainty” that Respondent had been represented by Federal Defenders

on the third case in 1981 also [R.T.Tr. 22]. The prosecutor imputed

knowledge of and control over the discovery reports by virtue of this

prior representation without any basis that such discovery had been

provided in the earlier cases.

13 The prosecutor relied upon United States v. Dawson, 516 F.2d

796 (9th Cir.), cert. denied, 423 U.S. 855 (1975), for this proposition.

In Dawson, the Ninth Circuit affirmed one of the exceptions to Ex

parte Bain, 121 U.S. 1 (1887), that “corrections of typographical

errors or making changes that are ‘merely a matter of form’ are not

constitutionally impermissible.” Jd. at 801. However, Dawson autho-

rized the striking of surplusage whereas in Respondent's case the

grand jury changed a date affecting the enhancement element of the

offense. See infra p. 24.

arraignment, the trial court resolved that the change in

count one was not significant and caused no significant

problem [R.T.Tr. 24]. The court also found Arkus dis-

tinguishable [R.T.Tr. 25].

Trial

Trial began as ordered on the next day, April 19, 1983.

Defense counsel stipulated to Respondent's identity and

alienage on the date of his arrest [R.T.Tr. 59-69]. There

was no stipulation that the December 7, 1981 prior convic-

tion, used as a basis to form the felony charge in S1, was

correct [R.T.Tr. 68]. During the discussions regarding the

stipulations defense counsel expressed confusion over

the nature oi che charge and the precise prior conviction

the government intended to use [R.T.Tr. 60]. The court

stated “they’re using the conviction from the September

20, 1981 arrest for illegal entry” but the prosecutor

acknowledged the existence of two judgment and commit-

ments on December 7, 1981 [R.T.Tr. 60-61].

Evidence at trial revealed that Respondent was

arrested near the Otay Lake located four to five miles

north of the United States-Mexico border. He was found

with a group of other people who stated they were from

Mexico. The physical appearance of the people, including

Respondent, indicated a recent crossing from Mexico.

Respondent was recognized from a prior arrest and

ultimately admitted to entering the United States earlier

on February 13, 1983 without inspection as well as his

previous arrest for illegal entry [R.T.Tr. 160-220].

The jury was instructed that three essential elements

were required to establish the offense: alienage at the

time alleged in the indictment, knowing and unlawful

entry on or about February 13, 1983, and a previous

conviction for illegal entry in the United States District

Court for the Southern District of California [R.T.Tr.

321]. The jury was further instructed that if it was unable

to unanimously agree on the felony charge it should con-

sider whether Mr. Rojas was guilty of the lesser included

offense of misdemeanor illegal entry [R.T.Tr. 322]. The

jury was instructed that the two elements of misde-

meanor illegal entry were: alienage and knowing and

unlawful entry on or about February 13, 1983.14

Respondent was convicted by the jury on April 20, 1983

(R.T.Tr. 332]. On May 23, 1983 Respondent was sen-

tenced to a term of imprisonment of one year and one day

(R.T.S. 7; C.R. 17]. The Ninth Circuit Court of Appeals,

in an unpublished memorandum decision, reversed

Respondent's conviction relying upon its earlier decisions

in United States v. Harris, 724 F.2d 1452 (9th Cir. 1984),

and United States v. Daly, 716 F.2d 1499, 1506 (9th Cir.

1983). The court held that

section 3161(c)(2) of the S y Trial Act guarantees

that a defendant will not be forced to trial less than

thirty days from the date on which the defendant first

pears on the indictment on which the defendant

whmately goes to trial.

[Pet. Cert. at -la-2a (emphasis added)]

The court found Rojas-Contreras was entitled to an

additional defense preparation period after arraignment

on the superseding indictment and that no prejudice need

be shown [Pet. Cert. at 2a].

14 Thus, if the jury disagreed as to the third element of felony illegal

entry—the previous conviction as charged in the indictment—it could

acquit of the greater offense and convict of the lesser included

offense of misdemeanor illegal entry. At the time, the maximum

penalty for felony illegal entry was two years and/or a fine of $1,000

and for misdemeanor illegal entry six months and/or a fine of $500. 8

U.S.C. § 1325.

SUMMARY OF ARGUMENT

The minimum mandatory defense pre

paration period,

codified in 18 U.S.C. §3161(c)2), applies to all indict-

ments. As a result a defendant cannot be forced to trial in

less than thirty days from the first appearance through

counsel on the indictment upon which trial ultimately

commences.

In 1979 Congress amended the Speedy Trial Act and

added the thirty-day minimum mandatory defense prepa-

ration period which is at issue in this case. The intent of

Congress was to provide defendants with a minimal

period of time to prepare “even in the simplest case” and

to avoid having defendants forced to trial too quickly.

After over four years of experience with the Speedy Trial

Act, 18 U.S.C. §§3161, et seg., Congress realized that

criminal defendants were unduly burdened by certain

provisions of the Act. As a result, it enacted the minimum

defense preparation period of 3161(c)(2) in order to pre-

vent the Speedy Trial Act from becoming the “Speedy

Conviction Act.” At the same time and separate and

distinct from the preparation period contained in

3161(c)(2), Congress added an “ends of justice” exclusion

which could be used to extend the seventy-day limit to

trial (3161(h)(8)(B)(iv)) upon a determination by the court

that a defendant in a noncomplex case needed additional

time to prepare.

Two provisions of the Speedy Trial Act of 1974 which

were untouched by the 1979 amendments respond to sit-

uations where an indictment is dismissed and a later

indictment is filed charging either 1) “the same offense or

an offense based on the same conduct or arising from the

Same criminal episode” (3161(d)(1)) or 2) “the same

offense or any offense required to be joined with that

offense” (3161(h)(6)). However, neither section deals with

superseding indictments or indictments filed while the

original indictment is still pending. In fact, superseding

indictments are neither defined nor discussed in the stat- '

utory scheme of the Speedy Trial Act or in the federal

criminal code.

Title 18 U.S.C. §3161(d)(1) provides that the seventy-

day speedy trial clock starts over after a successful

defense motion to dismiss an indictment where the gov-

ernment refiles an indictment charging “the same offense

or an offense based on the same conduct or arising from

the same criminal episode.” Title 18 U.S.C. §3161(h)(6)

provides that the time between dismissal of the indict-

ment by the government and refiling of “the same offense

or any offense required to be joined with that offense” is

excludable time tolling the seventy-day speedy trial clock.

Neither of these sections control the situation where

there is no gap between the two indictments or where the

original indictment remains in existence until after reso-

lution of the superseding indictment. Instead, the plain

language of 3161(c)(1) controls in those circumstances.

The plain language of the section requires that “[iJn any

- in which a plea of not guilty is entered, the trial of a

defendant charged in an . . . indictment . . . shall com-

mence within seventy days from the filing date . . . [or the

date the defendant appears before a judicial officer,

whichever is last] . . .” (emphasis added).

Applying both 3161(c)(1) (seventy-day time limit) and

(c)(2) (thirty-day mandatory defense preparation period)

to all indictments, including superseding indictments,

avoids the problem that the seventy-day time limit to trial

could be violated if the superseding indictment was filed

after the fortieth nonexcludable Speedy Trial Act day.

While there is a minimal opportunity for abuse by the

government continually filing superseding indictments in

order to avoid the Speedy Trial Act’s outer time limits,

application of Fed. R. Crim. P. 48(b) (dismissal for unnec-

essary delay in bringing a defendant to trial) would con-

trol any such potential for abuse. Such an application

effectuates the purpose of 3161(c)(2) by relieving the

defendant of the burden of convincing a court of the need

for a minimal time to prepare.

The mandatory defense preparation period must also

apply in situations where the government dismisses an

indictment shortly before filing a subsequent or supersed-

ing indictment (and thus where 3161(h)(6) is applicable).

To hold otherwise places complete control over a defen-

dant’s time to prepare either in the hands of the govern-

ment or the court. Congress enacted 3161(c)(2) specifi-

cally to place control over a minimum preparation period

in the hands of the defendant, not the government or the

court. If the government chooses to dismiss and refile

(and thereby activate the exclusion provisions of

3161(h)(6)) after the fortieth nonexcludable day, then it

must logically bear the burden of obtaining an “ends of

justice” exclusion to enable the defendant to assert the

thirty-day minimum defense preparation period. The gov-

ernment, and not the defendant, must be accountable for

its own failure to supersede or file subsequent charges in

compliance with the time provisions of the Speedy Trial

Act. An alternate, yet still consistent interpretation of the

interaction of 3161(c)(2) and (h)(6), is that an “ends of

justice” exclusion automatically excludes the minimum

defense preparation period from the seventy-day clock

upon the filing of a superseding indictment.

The filing of a superseding indictment may force a

defendant into the position of needing time to reflect and

evaluate the impact of even what appears to be an insig-

nificant change, addition or deletion in the indictment. In

those situations where additional time is not required, the

defendant will likely consent to trial in less than the

thirty-day minimum preparation period. The fact that the

government decides to seek a subsequent or superseding

indictment in itself reflects some intended impact on the

case. Although in Respondent’: case the government sug-

gested the superseding indictment merely corrected a

“typo error,” the change in dates took away the possibility

of an acquittal on the felony charge, thereby putting the

defendant in a position of reviewing the case for alternate

defenses. The government determined that the supersed-

ing indictment was necessary or presumably it would not

have taken yaluable grand jury time to re-present the

same case. By the same reasoning, there is necessarily an

impact upon the defendant's case which causes a need to

evaluate the superseding indictment and possibly either

negotiate a disposition or even prepare another defense.

Congress intended to grant the defendant the absolute

right to assert a minimum mandatory defense prepara-

tion period without having to express prejudice or con-

vince a court to exercise its discretion to grant the time to

re for trial based on all

expect a defendant to prepare for t on

aan and not actual charges ignores the realities of

representing a criminal defendant. Counsel can only rea-

sonably prepare to meet specific charges and not all

potential charges or problems raised by pre-trial discov-

ery.

Il.

The harmless error rule cannot apply to vioiations of

the rigid statutory requirement of 18 U.S.C. §3161(c)(2)

which guarantees a minimum defense preparation period.

Congress created a bright line rule which if subjected to

an application of the harmless error rule would be null and

void. There are certain errors, including violations of

strict standards of Congress, that require automatic

reversal because the impact of the error is impossible to

determine. By providing for a precise thirty-day mini-

mum mandatory defense preparation period which a

defendant alone can assert or waive, Congress presumed

that any violation would be harmful or prejudicial. To

permit a case by case analysis of the harm resulting froma

violation of this rigid thirty-day rule would allow the

district courts and prosecutors to overcome the intent of

Congress as well as the plain meaning of 3161(c)(2). There

is no reason for a court to violate the thirty-day minimum

period for there is no discretion involved in its interpreta-

tion or application.

ARGUMENT

THE SPEEDY TRIAL ACT GUARANTEES THAT A

DEFENDANT CANNOT BE FORCED TO TRIAL IN LESS

THAN THIRTY DAYS FROM THE DATE THE DEFENDANT

FIRST APPEARS THROUGH COUNSEL ON THE

INDICTMENT ON WHICH TRIAL ULTIMATELY

COMMENCES. :

The History and Purpose of 18 U.S.C. §3161(c)(2)

Title 18 U.S.C. §3161(c)(2) was added to the Speedy

Trial Act in July 1979 amidst the government's push: to

expand and reconfigure the time limits of the Act or in the

alternative to delay the effective date of the sanction

provisions of the Act.!5 Ultimately Congress delayed the

‘© See The Speedy Trial Act Amendments of 1979: Hearings Before

the Senate Comm. on the Judiciary on S. 961 and S. 1028, 96th

Cong., Ist Sess. 31, 49 (1979) [hereinafter cited as 1979 Senate

effective date of the -anction provisions one year (from

July 1, 1979 to July 1, 1980) but rejected the request of the

Department of Justice to enlarge the time from the filing

of charges to trial from 60 to 120 days. *®

The “defense preparation period,” as 18 U.S.C.

§3161(c)(2) has become known, was contained in the pro-

posed amendments suggested by the Department of Jus-

tice as well as the Judicial Conference and provided that

“(t]he trial of a defendant shall not commence less than

thirty days from the date specified in paragraph (1) with-

out the consent of the defendant.”!7 According to the

Hearings] (statement of Assistant U.S. Attorney General Phillip B.

Heyman); id. at 149 (letter of Benjamin R. Civiletti, Deputy Attorney

General); id. at 728-29 (letter of Attorney General Griffin Bell); id. at

4-15 (S. 961 and S. 1028 as submitted Apr. 10, 1979 and Apr. 26,

1979, respectively); Proposed Amendments to the Speedy Trial Act of

1974: Hearings Before the Subcomm. on Crime of the House Comm.

on the Judiciary, 96th Cong., 1st Sess. 2 (1979) [hereinafter cited as

1979 House Hearings]; R.L. Misner, Speedy Trial—Federal and State

Practice 215 (1983).

16 The 1979 amendments merged the indictment to arraignment

(ten days) and arraignment to trial (sixty days) time periods contained

in the 1974 Act (18 U.S.C. § 3161(c) (1974)) into one seventy-day

period. See 18 U.S.C. 3161(c)(1) (1979). The amendments also

added 3161(c)(2) (the defense preparation period), 3161(d)(2) (time

for retrial after appeal), 3161(h)(8)(B)(iv) (ends of justice continuance

in a noncomplex case for continuity of counsel and trial preparation),

3161(h)(9) (delay to obtain foreign evidence), and made certain other

changes in the automatic exclusion provisions in 3161(h)(1).

17 See S. 961, 96th Cong., Ist Sess., 125 Cong. Rec. 7951 (Apr. 10,

1979); S. 1028, 96th Cong., Ist Sess., 125 Cong. Rec. 8841 (Apr. 26,

1979). “(P]aragraph (1)” referred to the later date of the filing of the

indictment or appearance before a judicial officer of the court in

which the charge was pending. Jd. The Department of Justice sup-

portedathirty-day minimum time limit “afterindictment or (the defen-

dant’s] appearance before an officer of the court. . . .” 1979 House

Department of Justice it was

[iJn recognition of the special problems often faced by

defense counsel. . . [that the Depatment requires] a

minimum of thirty days for defense preparation. This

insures the defendant of some minimum preparation

time even in the simplest case. }®

The language of subsection (c)(2) was changed before final

passage to delete the reference to “paragraph (1)” and

provide that the thirty-day defense preparation period

would run “from the date on which the defendant first

appears through counsel or expressly waives counsel and |

elects to proceed pro se.”!9 This modification in the lan-

guage provided for a more liberal construction of the start

of the defense preparation period. Sen. Report 212, supra

note 19, at 32. In recognizing that the “appears through

counsel” language was similar to the comparable provi-

sion in the Department of Justice and Judicial Conference

bills, the Senate Committee on the Judiciary found that

, A ta rege trial less than thirty days after the

fendant appears in a position to begin preparing

a more fuily protects basic due process

nghts

Guidelines promulgated by the Second Circuit Judicial

Council are also part of the history of the 1979 Amend-

Hearings, supra note 15, at 15 (testimony of Shirah Neiman, Deputy

Chief of the Criminal Section, Southern District of New York United

States Attorney’s Office).

18 1979 Senate Hearings, supra note 15, at 51-53 (statement of

Assistant U.S. Attorney General Phillip Heymann).

19S. Rep. No. 212, 96th Cong., Ist Sess. 1, 32 (1979) [hereinafter

cited as Sen. Report 212]. The House coucurred with the change.

H.R. Rep. No. 390, 96th Cong., Ist Sess. 1 (1979).

———

ments to the Speedy Trial Act.2° These Guidelines were

discussed and applauded and indeed made a part of the

record of the 1979 House and Senate Hearings and the

Congressional Record.2? However, the Petitioner mis-

construes their meaning. For the better part of seven

pages of its brief, Petitioner weaves an erroneous analysis

of the Second Circuit Guidelines [Pet. Br. at 22, 24-30] and

concludes that they “made clear” that a defendant is not

automatically entitled to a new thirty-day period follow-

ing the return of a superseding indictment. This is simply

incorrect. The Second Circuit Guidelines never provided

for any thirty-day preparation period to be mandatory or

automatic, but merely contained a policy statement in the

preamble recommending (not mandating) that a request

for thirty days to prepare be liberally construed.22 The

20 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 Senate Comm. on the Judiciary, 96th

Cong., lst Sess. 386-436 (1979) [hereinafter cited as Second Circuit

Guidelines].

211979 Senate Hearings, supra note 15, at 386-436; 1979 House

Hearings, supra note 15, at 306-353; 125 Cong. Rec. 15457 (June 19,

1979). At the same session a letter from Deputy Attorney General

Benjamin Civilettias well as the Comptroller General's report of May 2,

1979 entitled “The Speedy Trial Act—It’s Impact on the Judicial

System Still Unknown” were also made a part of the record. Jd. at

15454-15455.

22 The Second Circuit Guidelines provided in pertinent part: “[t]o

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 arraignment

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

allowance of a thirty-day defense preparation period was

by no means mandatory as it currently is, absent consent

of the defendant in writing, in section 3161(c)(2). It defies

both logic and common sense to find that the Second

Circuit Guidelines eliminated a right they never provided.

Furthermore, the wording of section 3161(c)(2), as

adopted, is not even remotely similar to the wording of the

Second Circuit Guidelines.

Had Congress, after full consideration of the Secend

Circuit’s guidelines, wished to fully adopt them and give

the defense preparation period their meaning, it would

have done so. Such intent cannot be imputed because the

“short answer is that Congress did not write the statute

that way.” United States v. Naftalin, 441 U.S. 768 (1979).

The Second Circuit Guidelines are simply not instructive

in interpreting a mandatory preparation period they

never imposed.

Petitioner also ignores that the policy statement con-

tained in the preamble to the Second Circuit Guidelines

presumably applied to the entire guidelines and was not

intended to have selective application. Nowhere in the

section regarding “subsequent charges,” 1979 Senate

Hearings, supra note 15, at 416-419, do the guidelines

suggest that a request for thirty days from the filing of the

subsequent charge should be considered any differently

than a smiliar request on the original charge. The Second

Circuit Guidelines just never made the thirty-day period

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's or governmert’s choice of counsel, or the parties ability to

prepare for trial without undue pressure.” 1979 Senate Hearings,

supra note 15, at 392-393.

mandatory or automatic at any time, while Congress did

so in section 3161(c)(2).

Statutory Interpretation of 3161(c)(2)

It is against this backdrop that the scope of the defense

preparation period guaranteed by subsection 3161(c)(2)

must be interpreted. While, according to Petitioner, “the

statute speaks clearly,” the courts of appeals have given

inconsistent and inconclusive interpretations to it. Peti-

tio1er’s statement that the holding of the court below has

been rejected by every other court of appeals that has

considered the issue [Pet. Br. at 9 & n.6] is not accurate.*%

23 The Seventh Circuit’s decision in United States v. Feldman, 761

F.2d 380, 389 (7th Cir. 1985), followed the decision of the Ninth Circuit

in United States v. Harris, 724 F.2d 1452 (9th Cir. 1984), also finding

an automatic application of 3161(c)(2) to a superseding indictment.

However, Feldman may have been decided after Petitioner filed its

brief. Also, while the Second Circuit in United States v. Guzman, 754

F.2d 482 (2d Cir. ), petition for cert. filed, 53 U.S.L. W. 3759(U.S. Apr. 9,

1985) (No. 84-1604), rejected an »utomatic reapplication of (c)(2) it

found as to one of the counts a reasonable continuance should have

been granted. Likewise the First Circuit in United States v. Rush, 738

F.2d 497 (1st Cir. 1984), cert. denied, 105 S. Ct. 1355 (1985), found

that (c)(2) did not apply to the superseding indictment in that case

and that (c)(2) applies only where (c)(1) also applies “unless [it

would] deprive a defendant of adequate opportunity to prepare his

defense.” Thus, the issue was not completely resolved in Rush.

United States v. Horton, 676 F.2d 1165 (7th Cir. 1982), cert. denied,

459 U.S. 1201 (1983), did not hold contrary to the Ninth Circuit, at

least according to the Seventh Circuit when it rendered its decision in

Feldman. The opinion in United States v. Todisco, 667 F.2d 255 (2d

Cir. 1981), cert. denied, 455 U.S. 906 (1982), did not set forth how

much time lapsed between the superseding indictment and trial nor

did it turn on any specific analysis of 3161(c)(2). The court simply

found that the district court did not abuse its discretion in refusing to

grant acontinuance. Petitioner inappropriately cited the Fifth Circuit

ruling in United States v. Williford, No. 83-1376, cert. denied, 105 S.

Compare United States v. Feldman, 761 F.2d 380, 389

(7th Cir. 1985) (“it was a violation of the Speedy Trial Act

to try [the defendants] less than thirty days after the

return of the superseding indictment”); United States v.

Harris, 724 F.2d 1452, 1455 (9th Cir. 1984) (“we read

section 3161(c)(2) as guaranteeing that the defendant is

not forced to trial less than thirty days from the date on

which the defendant first appears on the indictment on

which the defendant ultimately goes to trial” (emphasis in

original)); United States v. Wooten, 688 F.2d 941, 951 (4th

Cir. 1982) (“section 3161(c)(2) simply [] guarantee[s] to

the criminal: defendant the right to a delay of at least

thirty days between arraignment and trial in any circwm-

stances” (emphasis added)); United States v. Arkus, 675

F.2d 245, 248 (9th Cir. 1982) (“Congress intended that the

thirty-day period apply also in cases of reindictment”),

with United States v. Gallo, No. 83-3288 (6th Cir. May 29,

1985) (“the appropriate period for preparation by defen-

dants following a superseding indictment is governed by

the discretion of the district court, and not the statutory

thirty-day requirement”); United States v. Guzman, 754

F.2d 482, 486 (2d Cir.), petition for cert. filed, 53 U.S.L.W.

3759 (U.S. Apr. 9, 1985) (No. 84-1604) (“[wJhen a super-

seding indictment makes only insubstantial changes in an

original indictment, so that a defendant has not been

deprived of adequate time to prepare a defense, we hold

that, consistent with 18 U.S.C. §3161(c)(2), a district

Ct. 270 (1984), in view of the fact that the decision is not reported and

not controlling authority. The Sixth Circuit has ruled contrary to the

Ninth and Seventh Circuits, but based its decision on Horton and

Todisco. United States v. Gallo, No. 83-3288 (6th Cir. May 29, 1985).

However, the court in Gallo found the failure to grant a continuance to

prepare following the addition of a RICO count in a superseding

indictment was an abuse of discretion and reversed the conviction on

that count. Gallo, slip op. at 32-33.

a ee Ss a

court may exercise its discretion in proceeding to trial

without further delay”); United States v. Rush, 738 F.2d

497, 511 (1st Cir. 1984), cert. denied, 105S. Ct. 1355 (1985)

(“[w]e think it fully consistent with the congressional

purpose of (c)(2) to apply the thirty-day limit on the same

basis as the seventy-day limit in (c)(1), unless in a specific

case this would deprive a defendant of adequate oppor-

tunity to prepare his defense”); United States v. Horton,

676 F.2d 1165, 1170 (7th Cir. 1982), cert. denied, 459 U.S.

1201 (1983) (“a fair implication of the statute is that rein-

dictment for the same offense is permissible and that the

time period begins to run with the first indictment”).

Any ambiguity concerning the ambit of criminal stat-

utes should be resolved in favor of lenity, Liparota v.

United States, 105 S. Ct. 2084 (1985); Rewis v. United

States, 401 U.S. 808, 812 (1971); Bell v. United States, 349

U.S. 81, 83 (1955), unless the legislature has clearly spo-

ken to the contrary. United States v. Gradwell, 243 U.S.

476 (1917). Given the stated purpose of the thirty-day

minimum to trial defense preparation period as set forth

above and the requirement of lenity, the language “from

the date the defendant first appears through counsel” can

have no other reasonable meaning than the date the

defendant first appears through counsel on the indict-

ment upon which the defendant ultimately goes to trial.*4

While Petitioner now rejects such an interpretation, the

government has previously urged an even more liberal

construction f. 3161(c)(2) when, of course, it was to the

government’s advantage. See United States v. Richmond,

24 The “prime danger” of the Speedy Trial Act as expressed by one

of its drafters “is not dismissal but forced trial.” 1979 Senate Hear-

ings, supra note 15, at 73 (testimony of Professor Daniel Freed). In

addition, the Senate expressed concern that it had not become “The

Speedy Conviction Act.” Sen. Report 212, supra note 19, at 26.

735 F.2d 208, 213 (6th Cir. 1984) (government argued that

the 3161(c)(2) time period ran again after substitution of

counsel). In fact, as Petitioner acknowledges, it was the

government that urged the Ninth Circuit to hold that the

thirty-day period of 3161(c)(2) ran again from the date of

reindictment. United States v. Arkus, 675 F.2d 245, 246

(9th Cir. 1982).25 Arkus formed the basis for the decision

in United States v. Harris, 724 F.2d 1452 (9th Cir. 1984),

which the Ninth Circuit found controlled the decision in

Respondent's case [Pet. Cert. at 2a].

Contrary to Petitioner’s assertions, both Respondent

and the court of appeals gave the word “first” as it modi-

fies appearance through counsel its “ordinary . . . com-

mon meaning” [Pet. Br. at 13 (citing Perrin v. United

States, 444 U.S. 37, 42 (1979)]. However Petitioner should

not “make ‘a fortress out of a dictionary’ [but] remember{]

instead that ‘statutes always have some purpose or object

to accomplish, whose sympathetic and imaginative dis-

covery is the surest guide to their meaning.’” United

States v. Rabb, 680 F.2d 294, 296 (3d Cir.), cert. denied,

459 U.S. 873 (1982) (quoting Cabell v. Markham, 148 F.2d

737, 739 (2d Cir.) (Hand, J.), aff'd, 326 U.S. 404 (1945)). If

the words of 3161(c)(2) do not mean first appearance

through counsel on the indictment on which the defendant

ultimately goes to trial, then the statute fails to give the

meaning clearly intended by its history which was to

provide the defendant with a minimum mandatory trial

preparation time. To say that a defendant may prepare for

trial in a vacuum, that is, in the absence of precise

charges, is to ignore the realities of representing an

accused criminal defendant.

Practical Interpretation of 3161(c)(2)

Any change in a criminal charge can modify the theory

of defense and require different preparation. A date

25 Pet. Br. at 16 n.10.

change abrogates a planned alibi addressed to the orig-

inally charged date just as the deletion of an overt act

vitiates a defense theory that the government failed to

prove its case beyond a reasonable doubt. The vast major-

ity of criminal cases do not have clear-cut single defenses

but contain a variety of options demanding many judg-

ment calls by counsel. A minor shift in the wording of an

indictment causes a need to reflect, plan and possibly

prepare an alternate defense. To compel a criminal defen-

dant to reveal the nature of his/her defense in order to

obtain a short time to absorb the effect of even a slightly

changed indictment intrudes into the attorney-client rela-

tionship and the traditional work product privilege. It

also impacts the Sixth Amendment guarantee of the effec-

tive assistance of counsel. Indeed, as Congress recog-

nized, courts are often “loathe to grant ‘ends of justice’

continuances to permit adequate preparation time.” Sen.

Report 212, supra note 19, at 26. This rush to judgment

encouraged by the outer time limits of the Speedy Trial

Act was precisely the abuse Congress sought to avoid by

enacting 3161(c)(2).

Respondent's case is a perfect example of the need for a

subsequent defense preparation period upon the filing of a

superseding indictment. The government viewed its

superseding indictment as correcting a “typo” error and

asserted that Rojas was not entitled to any additional

preparation time. Accordingly the district court denied

Rojas’ request for a second defense preparation period.

Petitioner argues that Rojas “has never suggested any

reason why the superseding indictment . . . made more

trial preparation time necessary” [Pet. Br. at 39] neglect-

ing to acknowledge that Rojas requested a delay to obtain

the “A” file which contained reports about the prior con-

viction [R.T.Tr. 21]. Petitioner also manages to ignore

that the government must have viewed the incorrect date

in the indictment as a problem significant enough to war-

rant taking precious grand jury time to re-present the

case and obtain a second indictment. This step of a second

presentation to the grand jury reflects either a change

significant enough to also warrant a second defense prep-

aration period or a serious waste of the grand jury. The

government must have realized the greater potential for

acquittal of the felony as originally charged. See note 14,

supra.

Given the clear position adopted by the Ninth Circuit in

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

was no reason for Respondent to set forth reasons for

assertion of an automatic and mandatory right under

3161(c)(2). Id. at 248. Second, to require a defendant to

reveal the impact a change in the indictment has upon the

defense is improper and places an unfair burden on the

criminal defendant. A second indictment containing even

a slight change requires the defendant to reconsider the

steps taken to that point in the case. A narrow or legal

defense may disappear with the changes, just as

obviously occurred in Respondent's case. The charge of

felony illegal entry in violation of 8 U.S.C. §1325 requires

the government to prove a valid prior conviction for illegal

entry. United States v. Arambula-Alvarado, 677 F.2d 51

(9th Cir. 1982). The prior conviction must meet constitu-

tional standards. United States v. Timmreck, 441 U.S.

780 (1979); Boykin v. Alabama, 395 U.S. 238 (1969).

Count one of the first indictment arguably charged an

invalid prior conviction because it charged that a convic-

tion occurred on December 17, 1981 when in fact there

had been no conviction on that date. If the jury found that

the prior conviction was not proven beyond a reasonable

doubt, that is, with “proof of such a convincing character

that a reasonable person would not hesitate to rely and act

upon it in the most important of his own affairs” [R.T.Tr.

314] it could have returned a lesser included offense ver-

dict of misdemeanor illegal entry. The impact of a felony

versus misdemeanor conviction is significant—a six-

month maximum sentence versus a two-year maximum

sentence. 8 U.S.C. §1325. An obvious defense (and the

likely reason for the government’s superseding indict-

ment) existed until the filing of the superseding indict-

ment. Without the defense preparation period,

Respondent had no time to rethink his position, negotiate

a disposition or develop another strategy for trial.76

The appropriate interpretation of 3161(c)(2) requires

automatic application of the defense preparation period of

3161(c)(2) upon the filing of a superseding indictment.

Such an interpretation results in a rule which is simple to

apply. It does not require that counsel violate any

attorney-client or work product privilege or the Sixth

Amendment right to counsel by revealing the theory or

theories of defense. Further it does not require discre-

tionary calls by the court which could result in continuous

litigation and appeals. E.g., United States v. Guzman,

754 F.2d 482 (2d Cir.), petition for cert. filed, 53 U.S.L.W.

3759 (U.S. Apr. 9, 1985) (No. 84-1604).

Petitioner’s reliance on the failure of the statute to

qualify the 3161(c)(2) thirty-day time period by including

“post-superseding indictments” is nothing short of amaz-

ing. Indeed nowhere in the federal criminal code or

Federal Rules of Criminal Procedure is the term “super-

seding indictment” even used. Specifically, neither of the

other two statutory provisions contained in the Speedy

Trial Act which Petitioner argues control this case,

26 Certainly the loss of a defense is a “conceivable basis” to find the

superseding indictment impeded Respondent's ability to go imme-

diately to trial (Pet. Br. at 45].

3161(d)(1) and (h)(6), refer to superseding indictments.?7

In those two subsections, Congress was concerned with

the dismissal of charges and a subsequent filing of the

same or similar charges, not with the use of superseding

indictments. Superseding indictments appear to be a

creature of the prosecution created to correct sloppy draf-

ting practices?8 and do not represent a significant percen-

tage of the federal criminal trial load.?9 In fact, in view of

the small percentage of cases to be controlled by resolu-

tion of the question presented by this case, one questions

the vigor with which Petitioner insists the criminal defen-

dant is not entitled to again assert the miniscule man-

2718 U.S.C. § 3161(d)(1) and (h)(6) are reprinted in Petitioner's

statutory appendix, Pet. Br. at 2a-4a.

28 Cf, Misner, District Court Compliance with the Speedy Trial Act of

1974: The Ninth Circuit Experience, 1977 Ariz. St. L.J. n.140,

reprinted in 1979 House Hearings, supra note 15, at 225 n.140.

29 Information received from the Administrative Office of the

United States Courts (Statistical Analysis and Reports Div., Admin.

Office of the U.S. Courts; 1980-1984 Annual Report of the Director)

reveals that superseding indictments and informations resulting in a

judge or jury trial for the past five years represent an approximate

average of 1% of the total number of defendants indicted. The num-

bers are as follows:

Year Ending June 30, 1980 1981 1982 1983 1984

Total Number of

Defendants Proceeding to

Trial on Superseding

Indictments or Felony

Informations 394 348 437 561 502

Total Number of

Defendants Indicted 25,612 27,367 29,384 31,742 33,781

% Superseding

Indictments/Felony

Informations to Total

Defendants Indicted 2% 1% 1% 2% 1%

datory preparation time provided by Congress in en-

acting 3161(c)(2).

Petitioner’s reliance on the language “appears with

counsel” as having a meaning significantly distinct from

language linking the start of the defense preparation

period to the date of indictment [Pet. Br. at 14] ignores the

apparent rationale behind the modification of the lan-

guage of 3161(c)(2) from that initially drafted. See supra

pp. 15-16; Sen. Report 212, supra note 19, at 32. A crimi-

nal defendant is not in a realistic position to prepare a

defense or even meet the government's case until counsel

has entered the picture and the indictment has been

received. The slightest modification of a charge, whether

or not it is “material” in the eyes of the government or the

court, may substantially change the defense. See supra

pp. 22-25. Thus, the appearance of counsel in the absence

of the specific charges upon which the trial will proceed is

meaningless because it does not place the defendant in a

position to prepare his defense.*°

18 U.S.C. $3161(d)(1), (h)(6) and (h)(8)(B)(iv) are not

Applicable to this Case

Petitioner relies upon the statutory language of three

additional sections of the Speedy Trial Act to support its

conclusion that the defense preparation period guaran-

teed by 3161(c)(2) does not apply to superseding indict-

ments. Those sections are: (1) 18 U.S.C. §3161(d)(1)

which provides for restarting the speedy trial clock fol-

30 A defendant could also decide to change counsel for a supersed-

ing indictment or in fact elect to proceed pro se and technically

overcome Petitioner's objection. Such manipulation should not be

encouraged by this Court where a simple recognition of the need for a

minimum mandatory preparation period following the filing of each

indictment would cure the problem.

lowing a successful motion by the defendant to dismiss an

indictment or information (or dismissal of a complaint

presumably by either party) where the government later

files “the same offense or an offense based on the same

conduct or arising from the same criminal episode”; (2) 18

U.S.C. §3161(h)(6) which provides for the exclusion of

time between the government's dismissal of an indictment

or information and its later filing of “the same offense, or

any offense required to be joined with that offense”; and

(3) 18 U.S.C. §3161(h)(8)(B)(iv) which sets forth as fac-

tors that the court shall consider in deciding to grant an

“ends of justice” exclusion whether the failure to grant a

continuance in a noncomplex case would deny the defen-

dart reasonable time to obtain counsel, the defendant or

the government continuity of counsel, or the defendant or

the government reasonable trial preparation time.*!

Petitioner’s “bottom line” is that once a thirty-day

period of time pursuant to 3161(c)(2) has run as to a

defendant, regardless of when and for what reason a

superseding indictment is filed, the defendant must rely

upon an (h)(8)(B)(iv) discretionary continuance for trial

preparation.2 This position is grounded in Petitioner's

31 The full text of these provisions is found in Pet. Br. at la-5a.

82 Petitioner even suggests that should a superseding indictment

contain wholly new charges, and not just a modification of earlier

charges, the 3161(c)(2) time still would not run anew [Pet. Br. at 26).

This position would lead to more absurd results than Petitioner

suggests would occur if the court of appeals decision is sustained. It

would allow the government to file a single count indictment, provide

mountainous discovery (so it could be said the defendant was aware)

and then supersede, adding several counts of varying levels of inten-

sity. The defendant would then be compelled to request a discretion-

ary continuance which may or may not be granted by a federal court

concerned about its calendar and moving the cases along. This is

interpretation of the interaction of 3161(d)(1) and (h)(6)

with 3161(c)(1). However, the language, history and pur-

ose of 3161(c)\(2) mandate that the defense preparation

period automatically applies to all superseding indict-

ments regardless of whether the indictments overlap.

First, neither 3161(d)(1) nor (h)(6) apply to the facts of

the case before this Court. Neither of these two sections

address the speedy trial clock as it applies to a second

indictment filed while the first indictment is pending and

viable. The first indictment filed against Mr. Rojas was in

existence at the time the second (superseding) indictment

was filed and remained valid and viable until dismissed

following the sentencing of Mr. Rojas on May 23, 1983

[DKT. 16]. On that basis neither the clock starting provi-

sions of 3161(d)(1) (filing of a charge after a successful

defense motion to dismiss) nor the excludable time provi-

sions of 3161(h)(6) (filing a charge after dismissal by the

government) control. United States v. Feldman, 761 F.2d

380 (7th Cir. 1985). The plain words of the statute given, as

Petitioner would say, “their ordinary . . . common mean-

ing, Perrin v. United States” (Pet. Br. at 13] compel the

conclusion that neither 3161(d)(1) nor 3161(h)(6) controls

in Respondent’s case. It must be “generally presumed

that Congress acts intentionally and purposely in the

disparate inclusion or exclusion [of particular language].”

Russello v. United States, 464 U.S. 16 (1983) (quoting

precisely the abuse 3161(c)(2) was enacted to prevent.

Further, there is no statutory or case authority to sustain the

government's assertion that where completely new charges are filed

in a superseding indictment, e.g., those that are not “the same

offense or any offense required to be joined with that offense,” the

“clock” runs from the original indictment. E£.g., United States v.

Feldman, 761 F.2d 380, 389 (7th Cir. 1985).

United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972)).

Second, where indictments overlap, a simple applica-

tion of 3161(c)(1) and (c)(2) requires that the speedy trial

clock start as to a second or subsequent indictment when

it is filed or the defendant appears, whichever is later.

Section 3161(c)(1) is clear and unambiguous:

In any case in which a plea of not guilty is entered,

the trial of a defendant charged in an information or

indictment . . . shall commence within seventy days

of the filing date (and making public) of the . .

indictment, or. . . date the defendant has a peared

[in the court where the c e is pending, whichever

is later]. . . . (Emphasis added.)

Application of this rule avoids Petitioner's primary con-

cern that the seventy-day limit would be at risk should the

defendant be given the minimum defense preparation

period on a second or subsequent indictment.*? It is also

consistent with the plain statutory language of 3161(c)(2).

It is a simple and bright line rule easily applied by the

courts and avoids substantial litigation and the constant

possibilities of retrial upon reversal. See, e.g., United

States v. Guzman, 754 F.2d 482 (2d Cir.), petition for cert.

filed, 53 U.S.L.W. 3759 (U.S. Apr. 9, 1985) (No. 84-1604)

(conviction wherein fifteen-year penalty imposed

33 This rule is also consistent with the Judicial Conference

Guidelines relied upon by Petitioner (Pet. Br. at 16]. See Comm. onthe

Admin. 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. 1981

and Apr. 1983) 14, and (rev. 1979 with amendments through Oct.

1984) 15-16. These guidelines conclude that the 3161(c)(2) period

does not run again on a superseding indictment where the seventy-

day limit is determined from the original indictment. This rule would

restart the seventy-day time period.

reversed because reasonable continuance should have

been granted); see also swpra pp. 19-21. Finally, this rule

avoids placing the burden upon the defendant to justify a

continuance, a circumstance that Congress, by enacting

3161(c)(2), found did not adequately insure preparation

time.

Third, balancing the public’s and the defendant's inter-

ests in a speedy trial against the defendant’s assertion of

the miniscule statutorily mandated thirty-day prepara-

tion period cannot reasonably tip the scales away from the

defendant. It is the government that chooses to file second

and subsequent indictments and it is the government that

chooses to file those second and subsequent indictments

within thirty days of trial. It is the government then that

should be held responsible for dissipating the pressure on

its client’s right to a speedy triai by its initial poor drafting

and delay in filing superseding charges. The actions of the

government should not be allowed to arbitrarily and com-

pletely control the time defense counsel has to prepare.

Congress recognized that courts did not always provide

adequate defense preparation time so it guaranteed a

minimum mandatory time for defendants to prepare to

meet the charges brought (not the charges that could be

brought). Congress also recognized that because the gov-

ernment controls the “switch on the clock” the defendant

shoulders “an unintended and unwarranted share of the

speedy trial burden.” Sen. Report 212, supra note 19, at

26. As aresult, corrective procedures including 3161(c)(2)

as well as flexibility in the automatic exclusions were

enacted. To now give the government control over the

switch on the defense preparation clock would violate the

letter and spirit of the 1979 amendments.

There is potential for abuse in a rule which “restarts”

the clock but no greater than the potential for abuse

resulting from the present exclusion provisions of the

Act. See infra note 37. In addition, it cannot be presumed

that a defendant would invoke the thirty-day preparation

period in every instance. Likewise, if the government

continually files a subsequent or superseding indictment

upon the approach of the end of the Speedy Trial Act time

to trial period, it will ultimately face a valid motion to

dismiss under Fed. R. Crim. P. 48(b) for unnecessary

delay in bringing a defendant to trial.*4 The slight poten-

tial for abuse cannot be said to outweigh the benefits of

the clock starting upon the filing of each indictment. Peti-

tioner acknowledges that a defendant has much to do

upon the filing of an indictment, e.g., retain counsel, make

a plea decision, evaluate defenses, locate witnesses, file

motions and confer on trial strategy [Pet. Br. at 31]. As

discussed swpra pp. 22-25, all of these actions must be

repeated upon the filing of a superseding indictment

assuming that any change, even a “typo,” is involved. The

defendant may even legitimately need or want new coun-

sel or elect to proceed pro se and certainly must evaluate

the impact of any change on the defense and trial strategy.

Additional motions may be warranted. Ifall of the defense

preparation is complete and is unchanged by the super-

seding indictment the defendant will likely consent to an

earlier trial. But to place the decision in the hands of the

34 Rule 48(b) [Dismissal] By Court: “If there is unnecessary delay

in ... bringing a defendant to trial, the court may dismiss the

indictment, information or complaint.” The proposition that the gov-

ernment may continue to dismiss and refile assumes both bad faith

and that there will be no problem with 3161(b) which requires any

indictment to be filed within thirty days of arrest or service of

summons, unless extended where there was no grand jury in session

or by 3161(h)(8)(B)(iii). Such an assumption should not be made and

the government should be aware that a tardy (re)filing could preclude

filing at all. See infra p. 35 and note 40.

prosecution is unfair, unwise, and does not comport with

the rudimentary demands of due process.

On the strength of two circuit court decisions Petitioner

concludes that where there is no gap between dismissal

and reindictment (which also is not the precise situation

here because the first indictment remained viable until

after sentencing) the seventy-day clock is computed by

reference to the first or “original” indictment [Pet. Br. at

15-16 n.9].35 A fortiori according to Petitioner, the thirty-

day minimum defense preparation period cannot run

anew because it could result in a violation of the seventy-

day Speedy Trial Act time to trial requirement.®6

The cases relied upon are not persuasive authority. In

United States v. Rush, 738 F.2d 497, 511 (1st Cir. 1984),

cert. denied, 105 S. Ct. 1355 (1985), the court recognized

that the case was not governed by 3161(d)(1) or (h)(6)

because the indictments overlapped but found it “fully

consistent with the congressional purpose of (c)(2) to

apply the thirty-day limit on the same basis as the sev-

enty-day limit in (c)(1) unless in a specific case this would

deprive a defendant of adequate opportunity to prepare

his defense” (emphasis added). While the court found that

3161(c)(2) did not apply to the superseding indictment the

decision rested upon the caveat underlined above. It must

also be understood that the superseding indictment in

35 Petitioner cites also to United States v. Dennis, 625 F.2d 782, 793

(8th Cir. 1980), as analogous support for this proposition. Dennis did

not involve an interpretation of either 3161(d) or (h)(6) but merely

recognized that there are differences in the Speedy Trial Act depend-

ing upon which party gains the dismissal.

36 Petitioner cites as an example that a superseding indictment

returned after the fortieth day, as occurred in this case, would compel

a violation of the seventy-day limitation should the defendant refuse to

consent in writing to a trial in less than thirty days.

Rush was returned some 671 days*? before trial began

with the formal arraignment delayed at the appellants’

request to save the effort and expense of superfluous pre-

trial appearances by counsel. /d. at 511. Thus, the defen-

dants received far more than the thirty-day minimum

defense preparation time after filing of the superseding

indictment.

Likewise the analysis in United States v. Horton, 676

F.2d 1165 (7th Cir. 1982), cert. denied, 459 U.S. 1201

(1983), is inapposite because there the government dis-

missed the original indictment and thus 3161(h)(6)

applied. The Horton court recognized that overlapping

indictments were not controlled by 3161(d)(1) or

3161(h)(6) but found that “a fair implication of the statute”

allowed reindictment for the same offense with the clock

running from the first indictment. Jd. at 1170. The deci-

sion was based upon a district court decision that did not

even address the issue and which was decided before

3161(c)(2) was enacted.38 The Seventh Circuit has itself

37 The “seventy-day” indictment or arraignment to trial mandate

may be an illusion. See, e.g., United States v. Pringle, 751 F.2d 419

(1st Cir. 1984) (463 calendar days to trial with only 62 nonexcludable

days); United States v. Henderson, 746 F.2d 619 (9th Cir. 1984),

petition for cert. filed, 53 U.S.L.W. 3826 (U.S. May 6, 1985) (No.

84-1744) (789 calendar days to trial with only 66 nonexcudable days);

United States v. Campbell, 706 F.2d 1138 (11th Cir. 1983) (265 calen-

dar days to trial with only 37 nonexcludable days); United States v.

Clifford, 664 F.2d 1090 (8th Cir. 1981) (211 calendar days to trial with

only 62 nonexcludable days).

38 The Horton court cited United States v. Sebastian, 428 F. Supp.

967, 973 (W.D.N.Y.), aff'd on other grounds, 562 F.2d 211 (2d Cir.

1977), as authority for its ruling. However, Sebastian interpreted

3161(h)(6) as permitting reindictment but did not involve or resolve

the question of overlapping indictments. Furthermore, Sebastian was

decided in 1977, two years before 3161(c)(2) was enacted. Sebas-

rejected the interpretation given Horton in Petitioner's

brief. United States v. Feldman, 761 F.2d 380 (7th Cir.

1985). In Feldman the court noted that 3161(h)(6)

explicitly requires the government to move for and obtain

the dismissal and stated “[w]e are reluctant to expand a

3tatutory scheme’s exception, section 3161(h)(6), to

include an implied dismissal by the government.” /d. at

389.

3161(c)(2) Also Applies te a Superseding Indictment

Filed After the Original Indictment has been Dis-

missed

Both subsections 3161(d)(1) and 3161(h)(6) have been in

the Speedy Trial Act since it became law in 1975.39 Sub-

section 3161(d)(1) lifts the bar to refiling of charges after a

successful defense motion to dismiss. Were it otherwise,

3161(b) could and, read literally, does preclude the later

(after thirty days of arrest) filing of an indictment.4° See

United States v. Pollock, 726 F.2d 1456 (9th Cir. 1984).

But see United States v. Heldt, 745 F.2d 1275 (9th Cir.

tian did recognize a potential problem posed by 3161(b) in the

reindictment of a case but found the section not applicable because

the case had been indicted before the effective date of the time limits.

39 Provisions covering the same area were in fact contained in

various Speedy Trial Act proposals dating back to 1971. See S. 754

(1974), H.R. 7873 (1973), H.R. 207 (1973), H.R. 658 (1973), H.R. 687

(1973), H.R. 773 (1973), H.R. 4807 (1973), reprinted in Speedy Trial

Act of 1974: Hearings Before the Subcomm. on Crime of the House

Comm. on the Judiciary, 93d Cong., 2d Sess. (1974); S. 895 (1971),

H.R. 7107 (1971), S. 754 (1972 and 1974), H.R. 17409 (1974), reprinted

in Partridge, Legislative History of Title I of the Speedy Trial Act of

1974 279-374 (Federal Judicial Center 1980).

4°18 U.S.C. § 3161(b) requires that “any indictment . . . be filed

within thirty days . . . of arrest [] or [service] with a summons in

connection with such charges . . .” (emphasis added).

1948); United States v. McCown, 711 F.2d 1441 (9th Cir.

1983); United States v. Wilks, 629 F.2d 669 (10th Cir.

1980). However, it would be logically inconsistent to deny

the government the opportunity to file a subsequent

indictment solely because the defendant waited thirty

days to bring a successful motion to dismiss. On that basis

it is understandable why Congress specifically included

the clock restarting provisions in 3161(d)(1).

Subsection 3161(h)(6) on the other hand is not a clock

starting provision like 3161(d)(1) but an excludable time

provision. It was evidently designed to prohibit the gov-

ernment from filing, dismissing and refiling simply to gain

more Speedy Trial Att time.#!

Both of these subsections remained intact during the

1979 amendments. In fact, both subsections were ignored

and not discussed by either the House or Senate in 1979.

The defense preparation period of 3161(c)(2) was added

without regard to the previously existing sections of the

Act. Section 3161(h)(6) was designed to restrict govern-

ment conduct and was not intended to restrict the man-

datory defense preparation period contained in 3161(c)(2).

This is so particularly in view of the fact that the (h)(6)

switch is controlled by the government. To hold otherwise

would emasculate the intent of 3161(c)(2) to provide for a

thirty-day delay of trial in any circumstances. Cf. United

States v. Wooten, 688 F.2d 941 (4th Cir. 1982).

41 See Frase, The Speedy Trial Act of 1974, 43 U. Chi. L. Rev. 667,

669 (1976) (“Since the filing of superseding charges is entirely within

the control of the government, such a rule makes sense: the govern-

ment should not be permitted to obtain additional time simply by filing

slightly different charges against the same defendant for the same

criminal episode.”); United States v. Hencye, 505 F. Supp. 968, 971

(N.D. Fla. 1981).

Petitioner argues that a defendant’s trial preparation

time in these nonoverlapping indictment situations comes

from 3161(h)(8)(B)(iv). However, an equally reasonable

reading of the combined effect of 3161(c)(2) and (h)(6) in

such situations is to require the government, not the

defendant, to justify an “ends of justice” continuance

under 3161(h)(8) to avoid a violation of the seventy-day

requirement. This reading gives full force and effect to the

purpose of both provisions and places the burden where it

belongs—on the party who controls the filing of indict-

ments. There is no reason why it would be unfair to place

the burden of obtaining excludable time on the govern-

ment. Certainly if good cause exists the government can

justify the delayed filing of a superseding indictment. #

Ifthe government uses a superseding indictment to add

defendants, a “reasonable period” of time will be automat-

ically excluded under 3161(h)(7) (joinder of defendants). If

the government intends to proceed as to the original

defendants first, a superseding indictment is not neces-

sary and the “new” defendants (whether newly dis-

covered or not) can be charged in a separate indictment. If

a superseding indictment merely “conforms the indict-

ment more precisely or in greater detail to the contents of

the bill of particulars .. . [or is reflective of] pre-trial

42 For Petitioner to admit that the government uses the grand jury

to correct typographical errors, eliminate charges or delete defen-

dants is astounding. Certainly grand juries have more to do than pass

judgment on the same case twice solely because indictments cannot

be proofread and unnecessary charges or co-defendants dismissed

out before trial. The government can seek an extension of the thirty-

day arrest to indictment time period should it need more time to

return a solid, well drafted indictment. 18 U.S.C. § 3161(h)(8)(B)(iii).

Additionally, how quickly the government forgets it makes the deci-

sion of when and who to indict and for what offenses.

motions,” [Pet. Br. at 33] the government should be able

to supersede with more than thirty nonexcludable days

left before trial, and if not, obtain a 3161(h)(8) exclusion in

order to so file.

Rather than viewing the reconciliation of 3161(h)(6) and

3161(c)(2) as another burden to be carried by the defen-

dant because “a new indictment does not always require

significant additional preparation . . . strategy may be

totally unaltered . . . the defendant [received] sufficient

informal notice” [Pet. Br. at 33], it should appropriately be

placed with the party creating the problem—the govern-

ment. Additionally, had Congress intended

3161(h)(8)(B)(iv) to supplant (c)(2) as the defense prepa-

ration period it would not have needed to enact both

subsections. Both 3161(h)(8)(B)(iv) and (c)(2) were prod-

ucts of the 1979 amendments designed to remedy sepa-

rate problems: “[w]hy would the drafters add a second

provision to protect a right already explicitly provided?”

Cuyler v. Adams, 449 U.S. 433, 446 (1981). As this Court

aptly noted, common sense requires that a second para-

graph be construed as securing something more.4? Jd. at

446.

#3 The Senate Judiciary Committee also recognized the distinction

between the 3161(c)(2) right and the 3161(h\(8) “ends of justice”

continuance provision. It suggested that the courts scrutinize coun-

sel’s “good faith” efforts to prepare within the time set for trial “(ilf,

for example, counsel for the defendant moves for an ‘ends of justice’

continuance under section 3161(h)(8) to allow him or her additional

tume to prepare for trial . . .” (emphasis added). Sen. Report 212,

supra note 19, at 32. This language reflects the distinction between

the trial preparation time provided in 3161(c)(2) and the “ends of

_ justice” preparation time provided for in 3161(h)(8). See also 1979

House Hearings, supra note 15, at 12 (testimony of Robert Fiske

recognizing that two provisions in the amendments provide for prepa-

ration time and continuity of counsel).

A second reasonable interpretation of the combined

effect of 3161(c)(2) and (h)(6) is to find that the assertion of

the (c)(2) right where a superseding indictment is filed

within thirty days of the seventy-day time limit automat-

ically invokes an (h)(8)(B)(iv) exclusion and allows the

court to reschedule a trial date past what would have been

the original seventy-day limit. This interpretation also

gives full force and effect to the purpose of both provi-

sions. As reflected earlier in note 37, the seventy-day limit

is often an illusion in view of the many exclusions available

in the Speedy Trial Act. Petitioner's concern that the

(c)(2) minimum defense preparation period will cause a

violation of the seventy-day limit of (c)(1) does not recog-

nize the realities of the Speedy Trial Act.

Given that there are interpretations of 3161(h)(6) con-

sistent with invoking the mandatory provisions of

3161(c)(2), this Court should “err” on the side of a stat-

utory construction supporting fundamental constitu-

tional rights. Cf. Time, Inc., v. Regan, 468 U.S. __, 104

S. Ct. 3262, 3292 (1984) (Stevens, J., concurring in part

and dissenting in part). Congress granted the defendant a

minimum mandatory preparation period (3161(c)(2)) as

well as the ability to seek a longer preparation time

(3161(h)(8)(B)(iv)) where necessary. The minimum man-

datory preparation time was designed to start when the

defendant was in a position to defend himself. Sen. Report

212, supra note 19, at 32. To construe the statute to take

away the minimum preparation time upon the unilateral

action of the government in filing a subsequent indictment

is not consistent with the Sixth Amendment.

Adoption of Petitioner's position that the defendant in a

federal criminal case can be compelled to trial in less than

thirty days of the date the government chooses to file a

superseding indictment will completely destroy the pur-

pose of the defense preparation period mandated by Con-

gress in 18 U.S.C. §3161(c)(2). Petitioner’s position

subjects the rights of the criminal defendant to the will

and whims of the prosecution. It is contrary to the intent

and language of the statute and poses severe practical

burdens on the criminal defendant which should not be

countenanced by this Court.

FORCING A DEFENDANT TO GO TO TRIAL IN VIOLATION

OF 18 U.S.C. §3161(c)(2) CAN NEVER BE DEEMED

HARMLESS ERROR.

Under the guise of the harmless error doctrine, Peti-

tioner reargues its position that 18 U.S.C. §3161(c)(2)

does not and should not allow a defendant to assert the

minimum mandatory thirty-day preparation period fol-

lowing the filing of a superseding indictment. According

to Petitioner this is so, particularly in Respondent's case,

because one thirty-day period has already been granted

and used and there can be no conceivable basis to claim

that the superseding indictment impeded trial prepara-

tion.

Again, Petitioner completely ignores the language,

purpose and history of 18 U.S.C. §3161(c)(2). See supra

pp. 14-27. In enacting the Speedy Trial Act, Congress

created a rigid statutory scheme and, as Petitioner

writes, constructed “a window of time during which a case

must be tried” [Pet. Br. at 8]. Petitioner now asks this

Court to ignore the specific mandate of the Speedy Trial

Act and find a violation of the Act to constitute harmless

error. To do so would write 3161(c)(2) out of the Speedy

Trial Act and render it a nullity.44

4 Petitioner suggests [Pet. Br. at 42] that none of the defense

The harmless error rule is ‘found in both Rule 52 of the

Federal Rules of Criminal Procedure and 28 U.S.C.

§2111. This Court has construed the rule to apply to

constitutional errors, Chapman v. California, 386 U.S.

18 (1967); United States v. Hasting, 461 U.S. 499 (1983),

as well as non-constitutional errors. See Hamling v.

United States, 418 U.S. 87, 108 (1974) and cases cited

therein; see also Kotteakos v. United States, 328 U.S. 750

(1946). However, application of the harmless error rule is

not carved in stone for this Court has recognized that

there are exceptions to the rule and certain errors that

may involve rights so basic to a fair trial that their viola-

tion can never be harmless. United States v. Hasting, 461

U.S. at 508 n.6 (citing Payne v. Arkansas, 356 U.S. 560

(1958) (coerced confession); Gideon v. Wainwright, 372

U.S. 335 (1963) (right to counsel); and Tumey v. Ohio, 273

U.S. 510 (1927) (impartial judge)); Jackson v. Virginia,

443 U.S. 307, 320 n.14 (1979) (“(oJur cases have indicated

that failure to instruct a jury on the necessity of proof of

guilt beyond a reasonable doubt can never be harmless

error”). There may also be some errors that call for auto-

matic reversal because the impact of the error is impossi-

ble to determine. E..g., Connecticut v. Johnson, 460 U.S.

73 (1983) (plurality opinion) (because the impact of a jury

instruction given in violation of Sandstrom v. Montana,

442 U.S. 510 (1979), could not be determined the error

could not be deemed harmless); Carpenters v. United

States, 330 U.%. 395, 408 (1947) (jury instruction that

misstated the law could not be harmless error even

attorneys who testified at the 1979 House and Senate hearings sug-

gested that harmless error principles would not apply. It is equally

notable that no one suggested that harmless error principles would

apply. The issue was simply never discussed. The Second Circuit

Guidelines do not support a harmless error test because they did not

create or even suggest a bright line rule like section 3161(c)(2).

though there was evidence of guilt because “(there [was]

no way of knowing [] whether the jury's verdict was based

on facts within the condemned instructions. . . . A failure

to charge correctly is not harmless, since the verdict

might have resulted from the incorrect instructiun.”);

Bollenbach v. United States, 326 U.S. 607, 617 (1946)

(erroneous instruction not harmless even in view of abun-

dant evidence since “[i]t would indeed be a long jump at

guessing to be confident that the jury did not rely on the

erroneous ‘presumption’ given them as a guide. . . . [t]he

question is not whether guilt may be spelt out of a record.

but whether guilt has been found by a jury according to

the procedure and standards appropriate for criminal tri-

als in the federal courts.”); R. Traynor, The Riddle of

Harmless Error 57, 64-73 (1970).

Likewise, violations of standards prescribed by Con-

gress, regardless of how clear the evidence in a case, fall

within this category of error subject to automatic rever-

sal. In Carpenters v. United States, this Court clarified

the deference which rules of Congress are to be accorded

holding

[ojur only point is this: Congress in §6 [of the Norris-

LaGuapdin Act] has specified the standards by which

liability. . . is to be determined. No matter how clear

the evidence, [the defendants] are entitled to have

the jury instructed in accordance with the standards

which Congress has prescribed. . . . It could not be

said that the failure [to instruct properly] was

harmless error.

Id. at 410. Implementation of the strict rule of 3161(c)(2)

must be accorded this same deference. It is a rigid stan-

dard prescribed by Congress and a matter directly affect-

ing the judicial process and the administration of justice.

The harm that results from its violation must be pre-

sumed for it cannot be measured or evaluated. A violation

re et te ee et lee ~

of 3161(c)(2) resulting from forcing the defendant to go to

trial on a superseding indictment in less than the mini-

mum preparation period must therefore be subject to

automatic reversal.

The selection of thirty days as a minimum defense

preparation period appears from all accounts to be an

arbitrary time period suggested by both the Judicial Con-

ference and the Department of Justice. See supra note

15. Congress adopted the recommended thirty-day

requirement and gave tiie defendant the option to proceed

to trial in less than thirty days by consenting to such in

writing. Implicitly, Congress found that forcing a defen-

dant to trial in less than thirty days would be harmful to

the defendant and prejudicial error. It adopted 3161(c)(2)

to prevent the Speedy Trial Act from becoming the

“Speedy Conviction Act,” Sen. Report 212, swpra note

19, at 26, and to express the policy that a defendant must

be accorded some minimal preparation time even in the

simplest case. See supra text at note 18. The mandatory

defense preparation period was inserted into the Act due

to a serious concern that defendants would be rushed to

trial because of countervailing Speedy Trial Act demands.

Supra note 24; 1979 Senate Hearings, supra note 15, at

93, 115. Thus, 3161(c)(2) was enacted in order to guaran-

tee defendants a minimum of thirty days to prepare for

trial.

Congress also provided for a discretionary “ends of

justice” continuance pursuant to 3161(h)(8)(B)(iv) which

45 There has been a more recent suggestion that i irty days is too

short. Implementation of the Speedy Trial Act, Hearings Before the

Subcomm. on Crime of the House Comm. on the Judiciary, 97th

Cong., Ist Sess. 64 (1981) (statement of Robert Weinberg, Williams

and Conley, recommending a 120-day minimum defense preparation

period).

the court can use to grant relief from too speedy a trial in

order for counsel to be prepared. Presumably, a denial of a

discretionary continuance pursuant to 3161(h)(8)(B)(iv)

would be subject to Petitioner’s harmless error analysis

unless the Sixth Amendment was violated. Cf United

States v. Burton, 584 F.2d 485, 491 n.19 (D.C. Cir. 1978),

cert. denied, 439 U.S. 1069 (1979) (harmless error tests do

not apply to Sixth Amendment violation based on denial

of continuance where it would have been fair and reason-

able to enable the defendant to retain or substitute coun-

sel). However, to allow a violation of a specific and non-

discretionary thirty-day provision to go uncorrected by

virtue of finding the viclation harmless error would be

equivalent to repealing the law itself. Quite obviously, this

Court interprets the law and is not a legislative body.

Marbury v. Madison, 1 Cranch 137 (1803); Barker v.

Wingo, 407 U.S. 514, 523 (1972).

If trial on day twenty-nine instead of day thirty-one can

be deemed harmless error, 3161(c)(2) has no meaning.

Either Congress created an inflexible rule or it did not.

Indeed, in Barker v. Wingo, a decision rendered prior to

the Speedy Trial Act, the Sixth Amendment's Speedy

Trial Clause was given an extremely flexible interpreta-

tion. In that case, this Court refused to create a speciiied

time limit for trials finding that to do so would require the

Court to engage in legislative activity. It was in response

to this decision and to the lack of guidance supplied by

Fed. R. Crim. P. 50(b)#6 that Congress enacted the inflexi-

46 Then existing Fed. R. Crim. P. 50(b) provided in pertinent part:

To minimize undue delay and to further the prompt disposition of

criminal cases each district court shall . . op = f- for the

prompt disposition of criminal cases which shall include rules

relating to time limits within which procedures prior to trial, the

trialitself. . . must take place. . . .

hE a me

ble rules of the Speedy Trial Act.47

Certainly the words in 3161(c)(2) that “unless the

defendant consents in writing to the contrary, the trial

shall not commence less than thirty days . . .” (emphasis

added) are inflexibie and create a bright line standard.

The statute does not say “if it does not prejudice the

defendant, trial shall not commence” but instead com-

mands that unless the defendant acts to waive the mini-

mum mandatory defense preparation period of thirty

days, “trial shall not commence less than thirty

days... .”

In view of the explicit language of 3161(c)(2) there was

no reason for Congress to expressly provide a remedy for

its violation. Courts must follow its mandate or face

retrial of the cause. There can be no other remedy.*

Remedies for violations of the outer time limits (thirty

days plus exclusions from arrest to indictment pursuant

to 3161(b) and seventy days plus exclusions from indict-

ment to trial pursuant to 3161(c)) were required because

the courts would not be in complete control of those limits.

The government is in primary control of the outer time

47 See Legislative History, Pub. L. No. 93-619, 1974 U.S. Code

Cong. & Ad. News 7401, 7404-05.

48 The Ninth Circuit recognized that Congress did not amend 18

U.S.C. § 3162(a)(2) to conform to the addition of 3161(c)(2) and found

that “it is an open question” whether the sanction of dismissal set

forth in 3162(a)(2) applies to violations of 3161(c)(2). United States v.

Daly, 716 F.2d 1499, 1506 (9th Cir. 1983). However, because the

defendant in Daly did not move for dismissal as required by 3162(a)(2)

the court did not reach that question. Instead, it found that the

violation of 3161(c)(2) was equivalent to forcing the defendant to trial

without adequate preparation time and remanded for a new trial. /d.

at 1506.

limits by virtue of its management of the time of the grand .

jury as well as its decision making authority over the

number and magnitude of the cases presented. If the

government cannot be prepared to try its case within the

statutorily mandated time provisions of the Speedy Trial

Act then Congress requires that sanctions be imposed.

Thus, Congress has given specific guidance to the courts

as to what to do in the event that the parties do not comply

with the outer time limits of the Act. 18 U.S.C. §3162.

These sanction provisions are necessary for the court to

punish actions outside of its immediate controi. However,

the scheduling of a trial date beyond a minimum time

period is completely within the control of the court. There

is no reason for a court to violate the rule and therefore no

reason for Congress to have specified a sanction. For

those courts that choose to ignore the mandate of Con-

gress to provide a thirty-day minimum defense prepara-

tion period, there can be no remedy other than retrial

with the appropriate preparation period provided. Peti-

tioner’s statement that there is no evidence that Congress

intended an otherwise valid conviction to be overturned

simply because its rules were violated [Pet. Br. at 41] is

misleading. There is no evidence that Congress expected

its rigid rule would be violated because there was no

reason to believe a matter completely within the control of

the court would be ignored by the court. Congress is

entitled to expect its standards will be followed. Carpen-

ters v. United States, 330 U.S. at 410. The rule Congress

created in 3161(c)(2) does not require the exercise of any

discretion.

In providing for the strict requirement that a “trial

shall not commence” Congress essentially created an

exception to the concept of harmless error. Congress did

not need to specifically state an exemption from that

concept because by making a rigid date requirement it

created one. Rarely if ever could a defendant show specific

prejudice resulting directly from the court starting trial

one day in advance of the expiration of the minimum

defense preparation period. However, had Congress

intended the courts to make discretionary calls with

regard to the defense preparation period it could have

adopted the language of the Second Circuit Guidelines or

provided that 3161(h)(8)(B)(iv) be the sole basis for

providing time to prepare for trial. It did not. See supra

pp. 16-18, 38. This Court cannot now adopt a new flex-

ibility that the Congress did not. A case by case analysis

of the “possible injury” [Pet. Br. at 45] or harm caused by

forcing a defendant to go to trial in less than the thirty-day

minimum defense preparation period cannot be permit-

ted.49 To do so will encourage violations of the rigid rule

created by Congress in 3161(c)(2) and will subrogate the

plain meaning of the rule and the intent of Congress to the

calendar of the district courts and prosecutors.

There can be no other reasonable result than the one

adopted by the court of appeals and that is to reverse any

conviction obtained after a defendant has been forced to

trial in violation of 3161(c)(2) and to allow for a new trial.

Per se application renders 3161(c)(2) clear and mean-

ingful. That clarity and meaning will be destroyed by

upholding, under the guise of harmless error, a district

court’s decision to force a defendant to trial in violation of

the minimum mandatory defense preparation period.

49 Respondent does not in any manner concede, or agree with

Petitioner, that the superseding indictment did not increase his bur-

den, open up new lines of defenses, or affect his ability to be ready for

trial. To the contrary, Respondent has set forth the “possible injury”

caused by the violation of 3161(c)(2). Supra pp. 23-25.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submittted,

JUDY CLARKE

Federal Defenders of San Diego, Inc.

101 West Broadway, Suite 440

(619) 234-8467

San Diego, California 92101-8297

Counsel for Respondent

Appointed by this Court

APPENDIX

Anited States District Court

For THE

SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA

Vv.

FERNANDO ROJAS-CONTRERAS

A23 103 064

COMPLAINT for VIOLATION of

U.S.C. Title 8 Section 1325 (Felony)

U.S.C. Title 8 Section 1326 (Felony)

FILED FEB 14, 1983

CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

BEFORE: J. Epwarp HarRRIs

San Dreco, CALIFORNIA

The undersigned complainant being duly sworn states:

COUNT ONE

That on or about May 15, 1982, defendant Fernando ROJAS-

Contreras was arrested and deported from the United States

to Mexico through the Port of Calexico, California, in pur-

suance of law, and thereafter, on or about February 13, 1983,

defendant was found in San Diego County, within the Southern

District of California, the Attorney General of the United

States not theretofore having consented to any reapplication

by the defendant for admission into the United States and after

the defendant has willfully and unlawfully returned and

remained in the United States, in violation of Title 8, United

States Code, Section 1326.

COUNT TWO

That on or about February 13, 1983, within the Southern

District of California, defendant Fernando ROJAS-Contreras,

an alien, did knowingly and willfully enter the United States at

a time and place other than as designated by Immigration

officers and elude examination or inspection by Immigration

officers, a felony, in violation of Title 8, United States Code,

Section 1325, in that the defendant was previously convicted

for violation of Title 8, United States Code, Section 1325, on

March 1, 1981.

And the complainant states that this complaint is based on

statements of the apprehending officers that the defendant was

found near Chula Vista, California, and upon inquiry was

unable to establish United States citizenship, has no identifica-

tion on his person, was unable to speak English, and admitted

to apprehending officers that he was a citizen of Mexico and had

no right to be in or enter the United States.

JAMES P. WAGONER

Border Patrol Agent

February 14, 1983

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.