Reply Brief — United States v. Rojas-Contreras

—_——

Supreme Court, U.S.

k ILE OD

OCT 2 1985

FOR ARGUMENT

No. 84-1023

JOSEPH F. SPANIOL, Ji

foLERK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

—

UNITED STATES OF AMERICA, PETITIONER

V.

FERNANDO ROJAS-CONTRERAS

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

CHARLES FRIED

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

TABLE OF AUTHORITIES

Cases:

Albernaz v. United States, 450 U.S. 333

Avery v. Alabama, 308 U.S. 444 ......

Chambers v. Maroney, 399 U.S. 42 ....

Jackson v.. Virginia, 443 U.S. 307 ......

Liparota v. United States, No. 84-1508

Ge Gee GE RECN cee dduscddudcuses

Rogers v. United States, 422 U.S.35 ...

Rosenberg v. United States, 360 U.S.

BOF covevceccvevscedecsreesccesces

United States v. Adu, No. 84-1106

(9th Cir. Sept. 16, 1985) ............

United States v. Albertini, No. 83-1624

Sh PD ccccesducddaecondess

United States v. Cronic, No. 82-660

a

United States v. Darby, 744 F.2d 1508,

cert. denied, Nos. 84-1261 and 84-1260

GR BR SOUND ccccccecaescassesses

United States v. Donovan, 429 U.S. 413

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

United States v. Gallo, 763 F.2d 1504 ..

United States v. Guzman, 754 F.2d 482,

petition for cert. pending, No. 84-1604

United States v. Hawkins, No. 83-3704

(11th Cir. July 22, 1985) ............

(1)

Page

Cases—Continued:

United States v. Horton, 676 F.2d 1165,

CE Ee 4

United States v. Richmond, 735 F.2d 208 ....... 5

Statutes and rule:

Se EE, BED cccdéccccccceccccecs 7

Omnibus Crime Control and Safe Streets Act

of 1968, Tit. III, 18 U.S.C. 2518 ............. 7

Speedy Trial Act, 18 U.S.C. 3161 et seq. :

DUE cccccdgesceoscesecese 3

18 U.S.C. 3161(ch2) ........ 1, 2, 3, 4, 5, 7, 8

DP EES coccccccsescecccess 2,5

DOU ED cc cécccccescecesesece 5

en ogg 5ekbd sadcodbecece 5

i on ek nedecetecésedeees 5

ED oo cceccccosccceccosece 4

Ss ED. co cccccdcccccecccess 5,7

18 U.S.C. 3161(hY8MA) .......... 02 ee eee 5

18 U.S.C. 3161(h\(8)( Biv) ............ 4, 5,6

i ck ei eécdecescectcces 5

i ccc eceeeeees 7

Miscellaneous:

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., Ist Sess. (1979) .............205. 3

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 84-1023

UNITED STATES OF AMERICA, PETITIONER

v.

FERNANDO ROJAS-CONTRERAS

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

W. demonstrated in our opening brief that the language,

legislative history, and purposes of the Speedy Trial Act all

compel the conclusion that a new 30-day defense prepara-

tion period does not begin to run when a superseding

indictment is returned. Respondent has pointed to nothing

that supports a contrary reading of the Act.

1. The Speedy Trial Act in terms provides that the 30-

day preparation period runs “from the date on which the

defendant first appears through counsel or expressly waives

counsel.” 18 U.S.C. 3161(c)(2) (emphasis added). Respond-

ent simply disregards this language, and reads the statute as

thougu the “date” described is “the date defendant first

appears through counsel on the indictment upon which the

defendant ultimately goes to trial.” Resp. Br. 21, 22

(emphasis in original). But nothing in Section 3161(c)(2)

supports such a construction; to the contrary, “when

(1)

2

employing the term ‘first,’ Congress presumably did not

have subsequent appearances in mind.” United States v.

Darby, 744 F.2d 1508, 1520 (11th Cir. 1984), cert. denied,

Nos. 84-1261 and 84-1260 (May 13, 1985) (emphasis in

original).' In essence, respondent’s brief is a lengthy request

that the Court rewrite the Act.’

2. Given the clarity of Section 3161(c)(2), respondent can

prevail only if the legislative history contains “the most

extraordinary showing of contrary intentions.” United

States v. Albertini, No. 83-1624 (June 24, 1985), slip op. 4.

Yet respondent has failed to offer a single item of legislative

history that supports his view of the relationship between

superseding indictments and Section 3161(c)(2).

Instead, respondent’s discussion of the legisiative history

is in large part negative: he argues (Br. 16-18) that the

Second Circuit guidelines, from which Section 3161(c)(2)

was derived, are not apposite to the question here. As we

explained in our opening brief (at 24-26 & n.18), however,

‘Respondent also makes no attempt to respond to our argument

(U.S. Br. 14-15) that Section 3161(d)(1) sheds light on Congress's

intentions regarding Section 3161(c\2). Section 3161(d\(1) provides

that the defendant is afforded a new preparation period when the

indictment is dismissed on the defendant's motion and a new indictment

subsequently is returned. Congress’s contrasting omission of a new

30-day period in cases involving superseding indictments suggests that

new automatic preparation periods are not required by the Act in such

cases.

?Respondent suggests that his construction is required by the rule of

lenity (Br. 21). But the rule of lenity provides only that ambiguous

statutes should be read narrowly to “ensure{] that criminal statutes will

provide fair warning concerning conduct rendered illegal” (Liparota v.

United States, No. 84-5108 (May 13, 1985), slip op. 8); it does not

require the courts to apply every procedural rule in a manner that

benefits the defendant. In any event, the rule of lenity “only serves as an

aid for resolving an ambiguity; it is not to be used to beget one.”

Albernaz v. United States, 450 U.S. 333, 342 (1981). There is no

ambiguity in Section 3161(c)(2).

3

the guidelines explicitly provided that district courts were

free “to adhere to the originally scheduled trial date” after

the return of a superseding indictment if “neither party

needs any additional time to prepare for trial on the super-

seding indictment.” 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., Ist

Sess. 420 (1979) [“1979 Senate Hearings”]|. See id. at

418-419.

It is true, of course, that the Second Circuit guidelines did

not make a 30-day preparation period mandatory even after

the first indictment. But such a period was presumptively to

be made available at that time upon a request by the defense

or prosecution (1979 Senate Hearings 392-393); in con-

trast, a new 30-day period was not to be granted as a matter

of course after the return of a superseding indictment.

Because Congress urged the courts to consult the guidelines

when construing the Act (as we explain in our opening brief

at 29-30), the structure of the guidelines is persuasive evi-

dence that Section 3161(c)(2) was not intended to provide

. for an automatic 30-day delay after the return of a new

indictment.

3. Respondent is untroubled by the anomaly that follows

from his construction of the Act, namely, that the applica-

tion of Section 3161(c)(2) to superseding indictments, in

combination with the 70-day indictment-to-trial limit

imposed by Section 3161(c)(1), may lead to cases in which

no trial date will be permissible (see U.S. Br. 17-18).

Respondent purports to solve this problem by offering

several (mutually inconsistent) routes for the government to

use in bringing defendants to trial following a superseding

indictment. Unfortunately, none finds support in the sta-

tute. This state of affairs strongly suggests that respondent’s

4

underlying premise—his claim that he is entitled to a new

30-day preparation period—is incorrect.

a. Respondent’s principal proposal (Br. 30-31) is that,

when a superseding indictment is returned before the origi-

nal indictment is dismissed, both the 30-day and the 70-day

periods begin running anew.’ Under this view, the govern-

ment could avoid the strictures of the Act and secure addi-

tional delay in any case by the simple expedient of filing a

superseding indictment making minor changes in the de-

scription of the offense. Such a result would not be toler-

able, and in fact the structure of the statute makes it plain

that respondent’s suggestion is untenable. When an indict-

ment is dismissed on the government’s motion and new

charges subsequently are filed against the defendant for the

same or a related offense, a new 70-day period is not pro-

vided; instead, Section 3161(h)(6) provides only that the

3Respondent’s reading draws some support from United States v.

Feldman, 761 F.2d 380 (7th Cir. i985), which held that the defendant is

entitled to a new preparation period after the return of a superseding

indictment. See id. at 388-389. But the court of appeals there based its

holding on an irrational distinction. It acknowledged that a new prepa-

ration period may not be granted when the government moves for and

obtains dismissal of the first indictment after obtaining the superseding

indictment. /bid. (citing United States v. Horton, 676 F.2d 1165, 1170

(7th Cir. 1982), cert. denied, 459 U.S. 1201 (1983)). The court offered no

reason for its conclusion that a different result is in order when the

government fails to seek dismissal of the first indictment after obtaining

a superseding indictment. In any event, Feldman—unlike this case—

involved a superseding indictment that added new counts and new

substantive offenses (761 F.2d at 389), factors that made the need for

additiona! preparation time more apparent than it is here. While the

Court need not decide the question in this case, we submit that addi-

tional preparation time should not be made available automatically

under Section 3161(c)(2) even when the superseding indictment adds

new charges. See United States v. Gallo, 763 F.2d 1504, 1522-1524 (6th

Cir. 1985); United States v. Guzman, 754 F.2d 482, 485-486 (2d Cir.

1985), petition for cert. pending, No. 84-1604; U.S. Br. 24-25. When

additional time is necessary, it may be provided under 18 U.S.C.

3161(h\(8)(B\iv). See note 4, infra.

5

period between indictments is excluded in calculating the

trial deadline. If Congress did not want the government to

get a full 70 days after dismissal and reindictment, it is

difficult to imagine that it would have wished Section

3161(c\(2) to be construed to provide for a new 70-day

period after the return of a superseding indictment. Indeed,

whenever Congress wanted to give the government a new

70-day period, it did so explicitly. See, e.g., 18 U.S.C.

3161(d)(1) and (2), (e), (i).

b. Respondent also suggests (Br. 39) that the 30-day

preparation period should simply be excluded from the

70-day calculus, so that the “speedy trial clock” would stop

running for 30 days after the defendant is arraigned on a

superseding indictment. Again, however, respondent’s

proposal is inconsistent with the structure of the Act. The

exclusions from the 70-day calculus—including periods

covered by continuances that are granted to give defense

counsel “the reasonable time necessary for effective prepa-

ration” (18 U.S.C. 3161(h)(8)(A) and (B)(iv))—are listed in

Section 3161(h). Nothing there provides for the automatic

exclusion of Section 3161(c)(2)’s thirty-day preparation

period. See United States v. Richmond, 735 F.2d 208, 214

(6th Cir. 1984). Indeed, the courts uniformly have calcu-

lated the expiration of the 70-day period within which trial

must be held without excluding the 30-day preparation

period.

c. Evidently recognizing that his submission cannot be

reconciled with the Act’s structure, respondent ultimately

maintains (Br. 37-38) that a new 30-day period should be

made available automatically even if that means that no

trial date will be permissible under the Act. He suggests that

the government will have brought this consequence on itself

by choosing to return a superseding indictment more than

40 days after the initial indictment, and that in such circum-

stances it is the government’s responsibility to obtain an

“ends of justice” continuance under Section 3161(h)(8).

6

This proposal, too, is without merit. The timing of the

superseding indictment is likely to follow from the grand

jury’s schedule or workload; in other instances, the loss of

witnesses or evidence—which may occur at any time—may

necessitate the dropping of counts. It is absurd to suggest

that Congress wrote the Act to provide that such develop-

ments automatically would make trial impossible without

judicial intervention. Instead, the Act is far more sensibly

read to provide that the ourden of obtaining a continuance

is appropriately shouldered by the party that is seeking

additional preparation time.

4. Finding nothing helpful in the language and legislative

history of the Act, respondent argues (Br. 22-25) that, as a

practical matter, a defendant will need an additional 30

days to prepare after the return of any superseding indict-

ment. We do not deny, of course, that additional prepara-

tion time occasionally will be necessary after the return of a

new indictment, and in those cases a continuance will be

available under 18 U.S.C. 3161(h)(8)(B)(iv). But one need

look only at the circumstances of this case and respondent’s

utterly unconvincing attempt to explain his need for an

additional 30 days to prepare in order to see that many

superseding indictments will have absolutely no effect on

defense preparation. Some, as in this case, will involve the

correction of nonsubstantive “clerical error{s]” (United

States v. Adu, No. 84-1106 (9th Cir. Sept. 16, 1985), slip

op. 5); in other cases, as was also true here, the defendant

will be informed of the substance of the change long before

the prosecutor has an opportunity to re-present the case to a

grand jury; and in some instances the superseding indict-

ment will simply reduce the number of charges. Such cir-

cumstances plainly do not warrant the automatic grant of

an additional 30 days to prepare for trial. This is, after all,

7

the “Speedy Trial Act” that is being construed, not the

“Delayed Trial Act.” ‘

5. Respondent’s argument against the application of the

harmless error rule to violations of Section 3161(c){2) also is

implausible. He suggests (Br. 44) that reversal should be

automatic when such a violation is found because Congress

set down an “inflexible rule” that the defense should have 30

days for trial preparation. But the harmless error rule rou-

tinely is applied to equally “inflexible” provisions. See, e.g.,

Rosenberg v. United States, 360 U.S. 367, 370-371 (1959)

(violation of the Jencks Act, 18 U.S.C. 3500, held harm-

less); Rogers v. United States, 422 U.S. 35, 40 (1975)

(harmless error rule applicable to Fed. R. Crim. P. 43);

United States v. Donovan, 429 U.S. 413, 432-440 (1977)

(suppression of evidence need not follow from technical

violations of the wiretap provisions of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 18

U.S.C. 2518). There is no reason to treat violations of

Section 3161(c)(2) differently. The grant of a new prepara-

tion period in a case such as this one hardly can be termed

‘Both the Eleventh Circuit and the Ninth Circuit itself recently have

rejected the conclusion of the court below, holding that additional

preparation time must be provided after the return of a superseding

indictment only when necessary to “assur{e] the defendant in a criminal

case adequate time for preparation.” United States v. Hawkins, No.

83-3704 (11th Cir. July 22, 1985), slip op. 5324. See Adu, slip op. 5. We

note, however, that these courts—like several others (see U.S. Br

33-34)—erroneously suggested that Section 3161(c)2) might itself be

the source for the new preparation period when additional time is

necessary. See Hawkins, slip op. 5324; Adu, slip op. 6. As we explain in

our opening brief (at 33-37), additional time, when necessary, !s

appropriately granted by means of a continuance issued under Section

3161(h\8). Use of the continuance mechanism in such circumstances is

consistent with the structure of the Act and gives the courts the flexibil-

ity to dole out as much time as is needed, but no more.

8

crucial to the integrity of the trial process. Compare, e.g..

Jackson v. Virginia, 443 U.S. 307, 320 n.14(1979). In short,

respondent has confused error with prejudicial error (see

U.S. Br. 40-41).

Respondent also appears to suggest (Br. 47) that the

harm that would flow from a violation of Section 3161(c)(2)

cannot easily be measured or evaluated. That is true in a

case like the present one only in the sense that the potential

harm is so microscopic as to be invisible—a problem of

measurement that does not impede application of harmless

error principles. In fact, as we noted in our opening brief (at

43-44), the Court has made it clear that the degree of preju-

dice flowing from an abridged preparation period is calcu-

lable by the courts and that reversal of a conviction requires

a finding of prejudice. See United States v. Cronic, No.

82-660 (May 14, 1984); Chambers v. Maroney, 399 U.S. 42,

54 (1970); Avery v. Alabama, 308 U.S. 444 (1940). It may

well be, as respondent suggests (Br. 44, 47), that the courts

will not find prejudice when the violation of the Act is

trivial. But absent a clear statement to the contrary in the

Act or its legislative history, there is no reason to believe

that Congress would have wanted reversals to follow from

inconsequential errors.°

‘Respondent appears to argue (Br. 23-24) that the return of the

superseding indictment here prejudiced his defense. While he complains

about failure to obtain his “A” file (see U.S. Br. 5), however, he does not

suggest that anything about the second indictment affected his need for

the file; in fact, respondent alleged in district court that the file was

relevant only to his defense on the second count of the indictment,

which was dismissed (see id. at 5-6). Respondent also suggests (Br. 23)

that the superseding indictment deprived him of a defense by making it

impossible for him to argue that he had not been convicted on

December 17, 1981. But the superseding indictment simply made it

impossible for respondent to raise a spurious defense by relying on a

typographical error in the original indictment. In any event, this devel-

opment should not have taken respondent by surprise; the actual date of

the conviction was disclosed to respondent's counsel long before the

superseding indictment was returned (see U.S. Br. 45).

9

For the foregoing reasons and the reasons stated in our

opening brief, the judgment of the court of appeals should

be reversed.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

OcTOBER 1985

DO)J-1985-10