UNITED STATES OF AMERICA, PETITIONER V. JAMES CRAWFORD MCAFEE, ET AL. No. 85-1959 In the Supreme Court of the United States October Term, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Question Presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinion of the court of appeals reversing the judgment of conviction and ordering dismissal of the indictment (App., infra, 1a-6a) is reported at 780 F.2d 143. The initial opinion of the court of appeals (App., infra, 12a-43a) is reported at 751 F.2d 419. The opinion of the district court on remand from the court of appeals (App., infra, 7a-11a) is reported at 607 F.Supp. 105. JURISDICTION The judgment of the court of appeals (App., infra, 44a) was entered on December 20, 1985. A petition for rehearing was denied on February 27, 1986 (App., infra, 45a). On April 21, 1986, Justice Brennan extended the time within which to file a petition for a writ of certiorari to and including May 28, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The Speedy Trial Act of 1974 provides in pertinent part (18 U.S.C. 3161(h)): The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence: (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to -- * * * * * (F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion. QUESTION PRESENTED Whether the court of appeals properly applied the Speedy Trial Act's pretrial motion exclusion, 18 U.S.C. 3161(h)(1)(F), in refusing to exclude the entire period between the filing of pretrial motions and the hearing on those motions in calculating time limits under the Act. STATEMENT Respondents pleaded guilty to conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. 955a(b) and 955c, and possession of marijuana with intent to import it into the United States, in violation of 21 U.S.C. 955a(d)(1). They were sentenced to concurrent terms of four years' imprisonment on each count, to be followed by two years' special parole; each respondent also was fined $5,000. The court of appeals reversed the convictions and ordered that the indictment be dismissed without prejudice (App., infra, 1a-6a). 1. Respondents were indicted on August 31, 1982, and charged with operating a vessel that carried more than 1,000 pounds of marijuana. Between September 10 and September 22, 1982, respondents filed 39 pretrial motions, including motions to dismiss the indictment and to suppress the evidence against them. On September 27, 1982, the government filed a response to all of the defense motions except the motions to dismiss and to suppress. A hearing on the motions to which the government had responded was conducted that same day, and on October 8, 1982, a magistrate ruled on 24 of the pending motions. The remaining 15 motions were reserved for resolution by the district court judge, and a hearing was scheduled on those motions for October 25, 1982. App., infra, 29a. /1/ Respondents subsequently filed three consecutive motions to continue the hearing date, each of which was granted in turn (App., infra, 29a). The last of these motions asserted that defense counsel had a number of scheduling conflicts, that the completion of discovery had been unavoidably delayed, and that a hearing on the pending motions could not be conducted until discovery had been completed. In that motion for a continuance, respondents represented that "all defendants in the above-captioned matter waive their rights to a speedy trial." Respondents accordingly requested a postponement of the hearing on their pending pretrial motions to January 10, 1983, or to a date after February 17, 1983. App., infra, 36a; 1 C.A. App. 127-137. /2/ In response, the district court tentatively scheduled the hearing on respondents' pretrial motions for January 10, 1983, but noted that in the interim the case would be reassigned to a different judge who would have to confirm the date (App., infra, 35a; 1 C.A. App. 7-8). While the case was in fact reassigned to Chief Judge Caffrey, the scheduled January 10 hearing on respondents' pretrial motions was not held (App., infra 29a; 2 C.A. App. 125). /3/ Instead, the next development in the case occurred on March 11, 1983, when the government filed its response to the 15 outstanding defense motions. On May 23, 1983, respondents filed a supplemental memorandum in support of a renewed motion to suppress. Also on that date, a status conference was held before Chief Judge Caffrey, who stated that he had become aware only a few days earlier that the case had been assigned to him (App., infra, 4a, 30a; 2 C.A. App. 74-75). Defense counsel then explained that they were not yet prepared, in any event, for a hearing on their motion to suppress because they were attempting to obtain classified information regarding the Coast Guard's tracking procedures (id. at 75-77). When the prosecutor requested that the court schedule a date for hearings on the case-dispositive motions, defense counsel suggested that July 12, 1983, was the earliest convenient date (id. at 78). The court refused to postpone the hearing for such a lengthy period, however, scheduling it instead for June 14, 1983 (id. at 81). 2. On June 9, 1983, notwithstanding his prior waiver, respondent Pringle filed a motion to dismiss the indictment, alleging a violation of the Speedy Trial Act of 1974, Tit. I, 18 U.S.C. 3161 et seq. (App., infra, 40a; 1 C.A. App. 138-144). He contended in that motion that the time between January 10, 1983, and May 23, 1983, should be counted toward the Act's 70-day indictment-to-trial limit (see 18 U.S.C. 3161(c)(1); Henderson v. United States, No. 84-1744 (May 19, 1986), slip op. 5), even though pretrial motions were pending during that period. The district court denied the motion, finding the period in dispute to be excludable under Section 3161(h)(1)(F), which removes from the 70-day speedy trial calculation "(a)ny period of delay * * * resulting from any pretrial motion, from the filing of the motion through the hearing on, or other prompt disposition of, such motion." See App., infra, 33a. Over the next several months, the parties continued to litigate the question whether the government had a duty to disclose classified information relating to Coast Guard surveillance on the high seas (see App., infra, 30a-31a). The June 14 hearing date that originally had been set aside to address the suppression motion accordingly was devoted to debate on the availability of the classified information (see id. at 30a; 1 C.A. App. 145-160). The discovery issue finally was resolved in the government's favor on October 13, 1983. /4/ The district court conducted a suppression hearing the following week, on October 21, 1983. On that same day, respondents again moved to dismiss the indictment on statutory speedy trial grounds. App., infra, 31a; 1 C.A. App. 358-359. This second speedy trial motion, as well as the other pending motions to dismiss and suppress, were denied by the district court on November 15, 1983 (App. infra, 31a). On December 5, 1983, respondents entered conditional guilty pleas, reserving their right to raise on appeal the denial of their speedy trial motions. /5/ 3. When presented with the speedy trial question, the court of appeals acknowledged that respondents' pretrial motions had been pending, without a hearing having been held, from September 1982 through October 1983. The court of appeals nevertheless concluded that the district court erred in excluding that period under Section 3161(h)(1)(F). App. infra, 33a. Instead, the court of appeals, relying on its prior decision in United States v. Mitchell, 723 F.20 1040 (1st Cir. 1983), read Section 3161(h)(1)(F) to permit the exclusion only of "reasonably necessary delay between the filing of pretrial motions and a hearing on them" (App., infra, 33a). The court therefore "evaluate(d) th(e) yearlong delay under the 'reasonably necessary' standard, filling in, as much as possible, the reasons for this delay from the record" (ibid.). In conducting this detailed evaluation, the court concluded that much of the delay was excludable, either because it was, in the court's view, "reasonably necessary" (App., infra, 33a, 40a-41a), or because it was properly covered by a continuance (id. at 33a-36a). /6/ In all, the court held that, setting aside the four-month period between January 10, 1983, and May 23, 1983, only 62 of the permissible 70 days had elapsed prior to the date the respondents entered their guilty pleas. The court then turned to that four-month period, which ran from the tentative hearing date selected by the initial judge for hearings on the case-dispositive motions to the date of the status conference conducted by Chief Judge Caffrey. During that period, the court noted, respondents' purported waiver of their speedy trial rights was in effect. The court held, however, that the waiver was "inoperative," reasoning that the statutory policy of encouraging speedy trials requires the rejection of attempts by the defense to surrender speedy trial rights. App., infra, 37a. But the court also concluded that, when a defendant's attempted waiver contributes to or causes a delay in the pretrial proceedings, that delay should be excluded from the speedy trial calculation; otherwise, the court explained, "defendants would have successfully worked both sides of the street, lulling the court and prosecution into a false sense of security only to turn around later and use the waiver-induced leisurely pace of the case as grounds for dismissal" (ibid.). Because the court of appeals found it impossible to determine from the record whether respondents' attempted waiver contributed to the delay in disposing of the pretrial motions, /7/ it remanded the case to the district court "for a determination of the reason for the delay which occurred between January 10 and May 23, 1983" (id. at 40a). 4. On remand, the district court conducted a hearing to determine the cause of the four-month delay. After hearing testimony from the prosecutor and reviewing the affidavits of defense counsel, the court concluded that "the (respondents') waiver was the substantial, predominant, and proximate cause of the leisurely pace at which the case proceeded." App., infra, 10a. The court "credit(ed) (the prosecutor's) statement that had it not been for the waiver, he would have pressed the Court for an earlier trial date and would have attempted to accelerate the pace of the litigation" (ibid.). The court also found that the prosecutor's reliance on the waiver was reasonable. The district court accordingly denied respondents' motion to dismiss the indictment on speedy trial grounds (id. at 11a). On appeal from this ruling, the court of appeals reversed. Pointing to Chief Judge Caffrey's May 23, 1983, statement that he only recently had learned that the case had been assigned to him, /8/ the court of appeals found that "(t)he primary cause of delay in this case was the administrative mixup which prevented the court from exercising proper control of the case, indeed from even knowing that the case was on its docket." App., infra, 5a. In these circumstances, the court held that "(a) breakdown in the administrative processing of a case cannot be excused because of a waiver-induced failure of the government to monitor the progress of the case" (ibid.). The January 10 to May 23 period, when added to the 62 days that the court of appeals previously had found to be nonexcludable, far exceeded the 70 days of pretrial delay permitted under the Act. The court of appeals therefore ordered the indictment dismissed. /9/ The court of appeals subsequently denied the government's motion to hold the case pending this Court's decision in Henderson v. United States, No. 84-1744 (May 19, 1986), which addressed the scope of 18 U.S.C. 3161(h)(1)(F); after the decision in Henderson, the court of appeals denied a renewed motion to reconsider the case in light of Henderson. REASONS FOR GRANTING THE PETITION The court of appeals' ruling cannot be reconciled with this Court's recent decision in Henderson v. United States, No. 84-1744 (May 19, 1986). The Court in Henderson held that "Congress intended (Section 3161(h)(1)(F)) to exclude from the Speedy Trial Act's 70-day limitation all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is 'reasonably necessary.'" Slip op. 9. In reaching that conclusion, the Court specifically disapproved the reasoning of United States v. Mitchell, 723 F.2d 1040 (1st Cir. 1983), upon which the court of appeals relied in refusing to hold that the entire period between September 1982 and October 1983 was excludable. See Henderson, slip op. 9. By focusing on the reasons for the delay in scheduling a hearing on respondents' motions, in an attempt to determine whether that delay was "reasonably necessary," the court of appeals accordingly engaged in an irrelevant and improper inquiry. The period between January 10, 1983, and May 23, 1983, which the court of appeals found crucial -- indeed, the entire period from September 22, 1982, through October 21, 1983 -- fell between the filing to respondents' pretrial motions and the hearings on those motions. As the Court explained in Henderson, such a period of delay should be excluded from the 70-day Speedy Trial Act calculation "'automatic(ally).'" Slip op. 6, quoting 746 F.2d 619, 622 (9th Cir. 1984). /10/ The judgment of the court of appeals therefore should be vacated, and the case remanded to give that court an opportunity to recalculate the Speedy Trial Act computation according to the standards set out in Henderson. CONCLUSION The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for reconsideration in light of Henderson v. United States, No. 84-1744 (May 19, 1986). Respectfully submitted. CHARLES FRIED Solicitor General MAY 1986 /1/ The motions reserved for the court fell into four categories: motions to suppress, motions to dismiss, motions for evidentiary hearings, and motions relating to the trial (App., infra, 29a). /2/ "1 C.A. App." refers to the appendix filed in the court of appeals on direct appeal from respondents' convictions. "2 C.A. App." refers to the appendix filed in the court of appeals on the subsequent appeal after a remand to the district court. /3/ It appears that no formal order or continuance was entered postponing the hearing from the January 10, 1983, date (see App., infra, 20a-30a). /4/ In the interim, on October 8, 1983, the district court held a hearing on and denied two of the motions that had been pending since September 1982 -- a motion for individual voir dire and a motion to dismiss the indictment because of an alleged underrepresentation of women among grand jury foremen (see App., infra, 31a). /5/ Respondents also reserved the right to challenge on appeal the denial of their suppression and discovery motions. These challenges were rejected by the court of appeals. App., infra, 13a-26a. /6/ The court also held that the new motion to compel disclosure that had been filed on May 23, 1983, created an additional period of excludable delay, and that a portion of the delay was excludable pursuant to 18 U.S.C. 3161(h)(1)(J) as time during which motions were under advisement (App., infra, 40a-41a). /7/ The court reasoned that the delay might have been caused by the government's resistance to respondents' request for classified information. In the court's view, "it took an inordinate amount of time for the government to reply to (respondents') motions for discovery, suppression and dismissal" (App., infra, 39a); the court also suggested that the government delayed unnecessarily in seeking a protective order (ibid.). /8/ The court of appeals stated that the transcript of the May 23, 1983, status conference had not previously been available (App., infra, 4a). /9/ The court noted, however, that respondents' waiver might have contributed to the delay, and it reasoned that respondents should not "benefit from the misrepresentations of their counsel by a dismissal with prejudice" (App., infra, 6a). The court accordingly ordered the indictment dismissed without prejudice (ibid.). See 18 U.S.C. 3162(a)(2). /10/ The period between the filing of the pretrial motions in this case and the date that those motions were taken under advisement by the district court (September 10, 1982, through October 21, 1983), and thus the length of the pretrial motion exclusion, is virtually identical to the period at issued in Henderson (November 3, 1980, through December 15, 1981). See Henderson, slip op. 9-10. APPENDIX