REFUGIO GONZALES, PETITIONER V. UNITED STATES OF AMERICA No. 90-5680 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 5-14) is reported at 897 F.2d 1312. JURISDICTION The judgment of the court of appeals was entered on March 27, 1990. A petition for rehearing was denied on May 11, 1990. The petition for a writ of certiorari was filed on August 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the 70-day limit of the Speedy Trial Act, 18 U.S.C. 3161 et seq., was exceeded. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of conspiracy to cause the issuance of a letter of credit without the consent of the board of directors, in violation of 18 U.S.C. 371; issuance of such a letter of credit, in violation of 18 U.S.C. 1005; bank fraud, in violation of 18 U.S.C. 1344; and making a false statement to a federally insured bank, in violation of 18 U.S.C. 1014. Petitioner was sentenced to a term of five years' probation. The court of appeals affirmed. 1. Briefly summarized, the evidence at trial showed that petitioner was a member of the board of directors of the Harris County Bank in Houston, Texas. During 1985 and 1986, he and the bank president caused the bank to issue letters of credit to two other federally insured banks as collateral for personal loans to petitioner. The letters of credit were issued without the knowledge or approval of Harris County Bank's other directors. Petitioner also made false statements to the lender banks in order to obtain the loans. 2. A three-count indictment was returned on June 17, 1987, charging petitioner with violations relating to the unauthorized issuance of letters of credit and bills of exchange. On July 2, 1987, petitioner filed a motion to substitute counsel, which was granted on July 13. On July 23, 1987, petitioner sought a continuance of the trial date. The district court continued the trial date to October 19, 1987, and excluded all the time between July 23 and October 19 under the ends-of-justice provision of the Speedy Trial Act, 18 U.S.C. 3161(h)(8). Gov't C.A. Br. 4-5. Both petitioner and the government filed numerous pretrial motions prior to the commencement of trial. For instance, petitioner filed five motions on August 24, 1987. The government responded to those motions on November 16, 1987, and filed a motion in limine that same day. While those motions were pending, a superseding indictment was returned on December 14, 1987, charging the same offenses as the original indictment. Thereafter, on December 23, the government filed a motion for reciprocal discovery, and on December 29, petitioner filed a motion for an extension of time within which to file additional pretrial motions. The court granted that motion on January 6, 1988, and on January 23, 1988, petitioner filed a motion to dismiss the superseding indictment, alleging certain defects in the indictment. He responded to the government's pending motions on February 4, and amended his motion to dismiss on February 9, 1988. That day, the magistrate ruled on all the outstanding motions except petitioner's motion to dismiss and part of a discovery motion. On March 24, 1988, petitioner filed his motion to dismiss the indictment for lack of a speedy trial. Gov't C.A. Br. 5-6. A second superseding indictment, which added four new counts, was returned on March 25, 1988. On October 10, 1988, petitioner renewed several of his previous motions and filed a supplemental motion to dismiss for lack of a speedy trial and several new motions, including a motion for early disclosure of Jencks Act material and a motion to dismiss three counts of the superseding indictment. Two days later, the district court disposed of all pending motions except the speedy trial motion. Following a hearing, the court denied that motion on October 24, 1988, finding that the pretrial motions created sufficient periods of excludable delay to render trial timely. Gov't C.A. Br. 6-7. The court specifically held that it did not matter whether the return of the second superseding indictment triggered a new 70-day period for commencing trial, because the pending pretrial motions applied to the new indictment as well and the periods of excludable delay continued. Pet. App. 24-27. Trial began that day. Petitioner was convicted on two counts that had been charged in the original indictment and on two counts that were added in the second superseding indictment. 3. The court of appeals affirmed. After excluding all the time attributable to pretrial motions, the court found that only 52 days had elapsed between the return of the original indictment and the beginning of trial. Therefore, the 70-day limit of the Act was not exceeded. The court explained that although there were long periods of delay during the pretrial proceedings, the Speedy Trial Act excludes all the time between the filing of a motion and the hearing on that motion, and that in this case, hearings were not delayed for the purpose of avoiding the Act. Pet. App. 8. The court of appeals rejected petitioner's argument that the return of the second superseding indictment started a new 70-day period and that the pending motions did not give rise to excludable delay with respect to that indictment. Id. at 8-9. The court explained that unless the district court "has ruled that the superseding indictment moots the pending motions, the motions continue to toll the speedy-trial clock for both the original and the new charges." In this case, the court observed, several motions were pending when the second superseding indictment was returned. Therefore, those motions created excludable delay with respect to the last indictment until the district court ruled on them. Id. at 10. ARGUMENT Petitioner contends that the pretrial motion exclusion of the Speedy Trial Act, 18 U.S.C. 3161(h)(1)(F), does not apply to the filing of a motion to dismiss on speedy trial grounds. He also argues that an exclusion for pending pretrial motions ceases upon the return of a superseding indictment, even where the new indictment does not moot the unresolved motions. Both arguments have been rejected by every appellate court to have addressed them. Accordingly, there is no reason for this Court to review petitioner's statutory speedy trial claim. The pretrial motion provision of the Speedy Trial Act excludes delay attributable to the filing of "any pretrial motion." 18 U.S.C. 3161(h)(1)(F). The courts of appeals have consistently given this phrase its plain meaning and have held that it excludes delay attributable to all types of motions, including motions to dismiss for lack of a speedy trial. See, e.g., United States v. Merritt, 882 F.2d 916, 920 (5th Cir. 1989), cert. denied, 110 S. Ct. 2592 (1990); United States v. Thompson, 866 F.2d 268, 273 (8th Cir.), cert. denied, 110 S. Ct. 94 (1989); United States v. Whaley, 788 F.2d 581, 583 (9th Cir.), cert. denied, 479 U.S. 962 (1986); United States v. Smith, 750 F.2d 1233, 1234 (4th Cir. 1984), cert. denied, 471 U.S. 1057 (1985); United States v. Bolden, 700 F.2d 102, 103 (2d Cir. 1983); United States v. Stafford, 697 F.2d 1368, 1372 (11th Cir. 1983). But even if petitioner's speedy trial motion did not stop the clock, the period during which the motion was pending was independently excludable because several other motions were outstanding during that same period. See Henderson v. United States, 476 U.S. 321 (1986). Nor is there merit to petitioner's claim that the exclusions ceased when the second superseding indictment was returned. With respect to any counts retained from an earlier indictment, the 70-day time limit is calculated by reference to the original indictment. See United States v. Rojas-Contreras, 474 U.S. 231, 239 (1985) (Blackmun, J., concurring). Therefore, petitioner's pending motions continued to toll the time for commencing trial with respect to those counts that were charged in the first two indictments. See United States v. Rush, 738 F.2d 497, 504 n.12 (1st Cir. 1984), cert. denied, 470 U.S. 1004 (1985); United States v. Novak, 715 F.2d 810, 813 (3d Cir. 1983), cert. denied, 465 U.S. 1030 (1984). Because the Speedy Trial Act contemplates that there will be only one clock for all charges joined in a single indictment, see United States v. Piteo, 726 F.2d 50, 52 (2d Cir. 1983), cert. denied, 466 U.S. 905 (1984), those motions also tolled the time limit for commencing trial on the new counts. United States v. Roman, 822 F.2d 261, 265-266 (2d Cir.), cert. denied, 484 U.S. 954 (1987). This is particularly true where the outstanding motions apply with equal force to the new counts, as some of the motions did here (for example, the motion for pretrial disclosure of Jencks material). Consequently, the courts below correctly excluded from the speedy trial calculations the period following the return of the second superseding indictment during which petitioner's pretrial motions were pending. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General PATTY MERKAMP STEMLER Attorney NOVEMBER 1990