UNITED STATES AMERICA, PETITIONER V. FERNANDO ROJAS-CONTRERAS

   No. 84-1023

   In The Supreme Court Of The United States

   October Term, 1985

   On Writ Of Certiorari To The United States Court Of Appeals For The
Ninth Circuit

   Reply Brief For The United States

   We 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 preparation 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).  Respondent simply disregards this
language, and reads the statute as though 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 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).  /1/ In essence, respondent's brief is a lengthy request
that the Court rewrite the Act.  /2/

   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 legislative 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, the guidelines explicitly provided that
district courts were free "to adhere to the originally scheduled trial
date" after the return to a superseding indictment if "neither party
needs any additional time to prepare for trial on the superseding
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., 1st 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 contrast, 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 evidence 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 application 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 statute.  This state of
affairs strongly suggests that respondent's underlying premise -- his
claim that he is entitled to a new 30-day preparation period -- is
correct.

   a. Respondent's principal proposal (Br. 30-31) is that, when a
superseding indictment is returned before the original indictment is
dismissed, both the 30-day and the 70-day periods begin running anew.
/3/ Under this view, the government could avoid the strictures of the
Act and secure additional delay in any case by the simple expedient of
filing a superseding indictment making minor changes in the
description of the offense.  Such a result would not be tolerable, and
in fact the structure of the statute makes it plain that respondent's
suggestion is untenable.  When an indictment 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 provided;  instead, Section 3161(h)(6) provides only that the
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 preparation" (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
calculated 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 circumstances it
is the government's responsibility to obtain an "ends of justice"
continuance under Section 3161(h)(8).

   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 developments automatically would make trial
impossible without judicial intervention.  Instead, the Act is far
more sensibly read to provide that the burden 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 indictment.  We do not deny, of course, that
additional preparation 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 indictment will simply reduce the number of
charges.  Such circumstances plainly do not warrant the automatic
grant of an additional 30 days to prepare for trial.  This is, after
all, the "Speedy Trial Act" that is being construed, not the "Delayed
Trial Act." /4/

   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 routinely 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
harmless);  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 preparation period in a
case such as this one hardly can be termed 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. 4041).

   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
prejudice flowing from an abridged preparation period is calculable 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

   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

   /1/ 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.

   /2/ 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/ Respondent's reading draws some support from United States v.
Feldman, 761 F.2d 380 (7th Cir. 1985), 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 preparation period may not be granted when the government
moves for and obtains dismissal of the first indictment after
obtaining the superseding indictment.  Ibid. (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
supseding indictment that added new counts and new substantive
offenses (761 F.2d at 389), factors that made the need for additional
preparation time more apparent than it is here.  While the Court need
not decide the question in this case, we submit that additional
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.

   /4/ 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, is 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 flexibility to dole out as much time
as is needed, but no more.

   /5/ 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 development 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).