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No. 08-1264

 

In the Supreme Court of the United States

TEJBIR S. OBEROI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
SANGITA K. RAO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTIONS PRESENTED

1. Whether time granted at the request of a defen dant to prepare pretrial motions qualifies as "delay re sulting from other proceedings concerning the defen dant," 18 U.S.C. 3161(h)(1), and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq.

2. Whether the time between the date on which a magistrate judge files a report and recommendation on pretrial motions and the date on which the parties must file objections to the report and recommendation is ex cludable under Section 3161(h).

In the Supreme Court of the United States

No. 08-1264

TEJBIR S. OBEROI, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-50a) is reported at 547 F.3d 436. The decision and order of the district court denying petitioner's motion to dismiss the indictment under the Speedy Trial Act (Pet. App. 51a-102a) is reported at 295 F. Supp. 2d 286.

JURISDICTION

The judgment of the court of appeals was entered on October 23, 2008. A petition for rehearing was denied on January 14, 2009 (Pet. App. 103a-104a). The petition for a writ of certiorari was filed on April 14, 2009. The jur isdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District Court for the Western District of New York, petitioner was convicted of making false statements in connection with health care benefits, in violation of 18 U.S.C. 1035, and mail fraud, in violation of 18 U.S.C. 1341. He was sentenced to 63 months of imprisonment, to be followed by three years of supervised release. Pet. App. 8a. The court of appeals affirmed. Id. at 1a-50a.

1. The Speedy Trial Act of 1974 (STA), 18 U.S.C. 3161 et seq., requires a defendant's trial to commence within 70 days of his indictment or his first appearance before a judicial officer, whichever occurs later. 18 U.S.C. 3161(c)(1). Automatically excluded from the com putation of the 70-day period are periods of delay "re sulting from other proceedings concerning the defen dant, including but not limited to * * * delay resulting from any pretrial motion, from the filing of the mo tion through the conclusion of the hearing on, or oth er prompt disposition of, such motion." 18 U.S.C. 3161(h)(1)(F).1 Also automatically excluded from the 70- day period is "delay reasonably attributable to any pe riod, not to exceed thirty days, during which any pro ceeding concerning the defendant is actually under ad visement by the court." 18 U.S.C. 3161(h)(1)(J). Addi tionally, a district court may exclude from the 70-day limit "[a]ny period of delay resulting from a continuance * * * if the judge granted such continuance on the ba sis of his findings that the ends of justice served by tak ing such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. 3161(h)(8)(A). Such findings must be made at or before the time the Court rules on a motion to dismiss for an STA violation. Zedner v. United States, 547 U.S. 489, 507 (2006). If the defendant is not brought to trial within the 70-day period, "the information or indictment shall be dismissed on motion of the defendant." 18 U.S.C. 3162(a)(2). Dismissal may be with or without prejudice, depending on the district court's weighing of various factors. Ibid.; United States v. Taylor, 487 U.S. 326, 336-337, 342-343 (1988).

2. Petitioner, a dentist in Buffalo, New York, de frauded insurance companies and dental benefit plans by filing reimbursement claims for procedures that he did not perform. Pet. App. 3a. In addition, to make his excessive billings appear legitimate, petitioner conduc ted unnecessary and invasive procedures, including root canals and osseous surgery, on unsuspecting healthy patients. Gov't C.A. Br. 1-2.

3. On October 14, 1999, a criminal complaint was filed charging petitioner with mail fraud, in violation of 18 U.S.C. 1341, and health care fraud, in violation of 18 U.S.C. 1347. Pet. App. 3a. On December 16, 1999, a grand jury indicted petitioner on 34 counts of mail fraud and 123 counts of making false statements in connection with health care benefits, in violation of 18 U.S.C. 1035. Pet. App. 3a-4a. On December 22, 1999, petitioner was arraigned. That day was also his first appearance be fore a judicial officer, which began the running of the speedy trial clock. See id. at 38a; 18 U.S.C. 3161(c)(1). Thereafter commenced "unusually event-filled pretrial proceedings, including three interlocutory appeals, hearings concerning bail (26 days), competency proceed ings, and several switches of defense counsel before [pe titioner] elected to represent himself." Pet. App. 2a.

On June 20, 2003, petitioner, proceeding pro se, moved to dismiss the indictment because of an alleged violation of the STA. Pet. App. 52a. The district court denied the motion. Id. at 51a-102a.

The following time periods are relevant to petition er's STA claim: On December 22, 1999, in response to a request by petitioner's counsel for "additional time to prepare and file his pretrial motions," Pet. App. 69a, a magistrate judge set a schedule for the filing of pretrial motions, with oral argument to be held on March 3, 2000, id. at 38a. The magistrate judge stated that the time until that date would not count towards the STA deadline, but the court did not further explain the exclu sion of time. Ibid. On December 28, 1999, the magis trate judge entered a written order directing the parties to file pretrial motions by February 23, 2000, and sched uling oral argument for March 10, 2000. Ibid. Citing the Second Circuit's Speedy Trial Guidelines, as well as cases from the First and Seventh Circuits holding that pretrial motion preparation time is automatically ex cluded from the speedy trial clock, the magistrate judge ordered that "the period of time from the date of this order until the date of oral argument is excluded under 18 U.S.C. § 3161(h)(1)(F)." Pet. App. 39a (citation omit ted).

On March 20, 2000, the magistrate judge entered a similar written order directing the parties to file pretrial motions by May 10, 2000, and expressly stopping the speedy trial clock on that basis. Pet. App. 40a. No mo tions were filed by the May 10 deadline, but, at a confer ence on the following day, the magistrate judge orally granted petitioner's motion for a further extension of time to prepare motions. Id. at 41a. On May 12, 2000, the magistrate judge entered a third written scheduling order directing the parties to file pretrial motions by June 28, 2000, and setting oral argument for July 26, 2000. Ibid. The written order again excluded time pur suant to 18 U.S.C. 3161(h)(1)(F). Pet. App. 41a.

On June 28, 2000, petitioner's counsel by letter re quested another extension of time to file pretrial mo tions. Pet. App. 41a. On June 30, 2000, a magistrate judge granted the request without referring to the STA. Ibid. On July 18, 2000, the magistrate judge issued a written order directing the parties to file pretrial mo tions by July 31, 2000, and scheduling oral argument for August 23, 2000. Id. at 41a-42a. Pursuant to 18 U.S.C. 3161(h)(1)(F), the order excluded from the STA deadline the time from the date of the order through the date for oral argument. Pet. App. 42a.

On July 31, 2000, petitioner filed pretrial motions. Pet. App. 42a. The magistrate judge held a hearing on those motions on October 18, 2000. Ibid. On November 27, 2000, the magistrate judge issued a written or der excluding from the STA deadline the next 30 days (until December 18, 2000), pursuant to 18 U.S.C. 3161(h)(8)(A), and making the necessary finding that the delay furthered the ends of justice. Pet. App. 42a-43a.

On December 20, 2000, the magistrate judge issued his report and recommendation on the pretrial motions. Pet. App. 43a. Petitioner's counsel received the report and recommendation on December 27, 2000, which auto matically triggered a 10-day period for filing objections with the district court, pursuant to 28 U.S.C. 636(b)(1). Pet. App. 43a. The 10-day objections period, which ex cludes holidays and weekends, see Fed. R. Crim. P. 45(a)(2), expired on January 11, 2001. Pet. App. 43a. On that day, petitioner's counsel requested an extension of time within which to file objections. On January 12, 2001, the district court entered an order giving peti tioner until February 8, 2001, to file objections. Ibid. Thereafter, the "filing of objections was overtaken by other procedural events," which independently tolled the speedy trial clock beginning on February 5, 2001. Id. at 44a.

In denying petitioner's motion to dismiss the indict ment under the STA, the district court found that only 20 days of the 70-day statutory limit had elapsed. Pet. App. 102a. As relevant here, the district court con cluded that the time necessary to prepare pretrial mo tions is "automatically excluded from the Speedy Trial clock under § 3161(h)(1)," id. at 70a, which excludes any period of delay resulting from "other proceedings con cerning the defendant," 18 U.S.C. 3161(h)(1). In addi tion, the district court held that the time for filing objec tions to a magistrate judge's report and recommenda tion on pretrial motions is also automatically excluded from the speedy trial clock. Pet. App. 86a. Relying on cases from the Sixth and Eighth Circuits, the court rea soned that the filing of the report and recommendation "in essence serves to re-file the motions, together with the magistrate's study of them, with the district court," and therefore "this filing tolls the 70-day count until the district court holds a hearing or has all the submissions it needs to rule on the motions." Id. at 86a-87a (quoting United States v. Long, 900 F.2d 1270, 1275 (8th Cir. 1990)).

Jury selection in petitioner's trial began on January 12, 2004. Pet. App. 7a. On January 15, 2004, pursuant to an agreement with the government, petitioner plead ed guilty to one count of making false statements in con nection with a health care matter, in violation of 18 U.S.C. 1035, and one count of mail fraud, in violation of 18 U.S.C. 1341. Pet. App. 7a-8a. Petitioner reserved the right to appeal his STA claim. Id. at 7a. He was sen tenced to 63 months of imprisonment, to be followed by three years of supervised release. Id. at 8a.

4. The court of appeals affirmed petitioner's convic tion. Pet. App. 1a-50a. As relevant here, the court held that the district court correctly denied petitioner's mo tion to dismiss the indictment for violation of the STA because fewer than 70 non-excludable days elapsed be tween petitioner's arraignment on December 22, 1999, and the start of petitioner's trial on January 12, 2004. Id. at 8a-46a.

First, the court of appeals rejected petitioner's argu ment that time requested by a defendant to prepare pre trial motions may not be automatically excluded from the 70-day limit under 18 U.S.C. 3161(h)(1). Pet. App. 20a-28a. The court noted that the courts of appeals dis agree on whether motion preparation time is excludable under Section 3161(h)(1)'s general language tolling the speedy trial clock for "other proceedings concerning the defendant, including but not limited to" the proceedings specified in Subsections (h)(1)(A) through (J). Id. at 23a-27a. After analyzing the issue, the court "join[ed] the sound majority of circuits holding that the time needed for the preparation of pretrial motions can be ex cluded under § 3161(h)(1)." Id. at 27a.

The court reasoned that, although motion prepara tion time does not fall within Subsection (h)(1)(F)'s spe cific exclusion for "delay resulting from any pretrial mo tion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion," 18 U.S.C. 3161(h)(1)(F), that provision is "but an illustration of the general language of § 3161(h)(1)." Pet. App. 25a (quoting United States v. Jodoin, 672 F.2d 232, 238 (1st Cir. 1982) (Breyer, J.)). The court ob served that "section 3161(h)(1) is explicit that the partic ular intervals in subsections A through J are illustrative rather than exhaustive" because Section 3161(h)(1) uses the phrase "including but not limited to." Ibid. (quoting United States v. Tibboel, 753 F.2d 608, 610 (7th Cir. 1985)). The court further reasoned that "subsection (h)(1)(F) automatically stops the clock for preparation of response papers" to pretrial motions and "[t]he same interests and considerations that militate in favor of allocating time for a party to respond to a motion (and for a court to decide it) justify the allocation of time to prepare the motion in the first place." Id. at 27a. The court, however, added a "caveat" to its holding: in order for pretrial motion preparation time to qualify for auto matic tolling under Section 3161(h)(1), "the lower court must expressly stop the speedy trial clock, either on the record or in a written order." Ibid. The court reasoned that "[t]his condition is critical" to allow "the creation of a docket entry," which "facilitate[s] audits for compli ance with the [STA] (in the trial court and on appeal)." Id. at 27a-28a.

Second, the court of appeals held that the time from a magistrate judge's issuance of a report and recom mendation on pretrial motions through the deadline for filing objections to the report and recommendation is also excluded from the speedy trial clock under Section 3161(h)(1). Pet. App. 29a-34a. Like the district court, the court of appeals agreed with cases from the Sixth and Eighth Circuits reasoning that the filing of the re port and recommendation effectively "serves to re-file the motions" with the district court, thereby tolling the speedy trial clock "until the district court holds a hear ing or has all the submissions it needs to rule on the mo tions." Id. at 31a-32a (quoting Long, 900 F.2d at 1275, and citing United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991), cert. denied, 502 U.S. 1103 (1992)).

The court of appeals noted that the Seventh and Eleventh Circuits "take a slightly different tack." Pet. App. 32a. In those circuits, the court explained, "the issuance of a report and recommendation starts the clock; but the filing of objection automatically stops it." Ibid. (citing United States v. Thomas, 788 F.2d 1250, 1257 (7th Cir.), cert. denied, 479 U.S. 853 (1986), and United States v. Robinson, 767 F.2d 765, 769 (11th Cir. 1985)). The court rejected that approach, reasoning that "[w]hile [it] speeds things along, it seems to assume that a report and recommendation is a final disposition of a motion, rather than a document that 'is automatically filed with the district court, which in turn is required to make a de novo determination on the issues to which a party objects.'" Id. at 33a (quoting Long, 900 F.2d at 1275 n.3). The court of appeals further observed that, "[e]ven if neither party files an objection to the report and recommendation, the motion itself is decided only after the district court rules." Ibid. Based on those considerations, the court of appeals ruled that "[t]he issuance of a report and recommendation automatically tolls the speedy trial clock under subsection (h)(1)(F) until ten days pass or objections are filed (whichever comes sooner)." Id. at 34a.

Applying these principles, the court of appeals ex cluded 154 days as time for the preparation of pretrial motions. See Pet. App. 38a-39a, 40a, 41a-42a. The court declined to exclude an additional 24 days based on its "caveat" that time granted to prepare pretrial motions is excluded only if the district court expressly stops the speedy trial clock for that purpose. See id. at 38a (re fusing to exclude five days-December 23, 1999, through December 27, 1999); id. at 41a (refusing to exclude 19 days-May 11, 2000, and June 30, 2000, through July 17, 2000). The court also excluded 44 days based on its rul ing that the time between the issuance of a magistrate's report and recommendation on the pretrial motions and the filing of any objections is also excluded. See id. at 43a-44a (excluding both the standard time for filing ob jections and the additional time that the district court granted in response to defense counsel's request). In total, the court concluded that only 45 days had elapsed on the speedy trial clock, well within the 70-day limit. See id. at 46a. Accordingly, the court affirmed the de nial of petitioner's STA claim.2

DISCUSSION

1. Petitioner first contends (Pet. 11-17) that this Court should grant the petition for a writ of certiorari to decide whether time granted to a defendant to pre pare pretrial motions may be excluded from the STA's 70-day time limit as a "period of delay resulting from other proceedings concerning the defendant," 18 U.S.C. 3161(h)(1). This Court recently granted review to re solve that question in Bloate v. United States, cert. granted, No. 08-728 (Apr. 20, 2009). With respect to that question, the petition should therefore be held pen ding the Court's decision in Bloate.

2. Petitioner also contends (Pet. 17-26) that the Court should grant the petition for a writ of certiorari to decide whether the time for filing objections to a magis trate judge's report and recommendation on pretrial motions is excluded from the speedy trial clock under Section 3161(h)(1). The Court should hold the petition pending the decision in Bloate with respect to that ques tion as well.

The Court's ruling in Bloate may render that issue irrelevant to the resolution of petitioner's STA claim. If this Court rules in Bloate that time granted for the preparation of pretrial motions is not excludable under Section 3161(h)(1), then petitioner will be able to estab lish an STA violation regardless of whether the court below correctly excluded time for filing objections to a magistrate's report and recommendation. Including the 154 days that the court below excluded as motion prepa ration time would bring the total number of days be tween petitioner's arraignment and the start of his trial to far more than the 70 days permitted under the STA, without taking into account the 44 days that the court below excluded as time for filing objections. Conversely, if this Court rules in Bloate that time granted for the preparation of pretrial motions is excludable under Sec tion 3161(h)(1) (and the Court does not adopt the "ca veat" imposed by the court below that the trial court must "expressly stop the speedy trial clock," Pet. App. 27a), then petitioner will not be able to establish an STA violation even if the court below erred in excluding time for filing objections to a magistrate's report and recom mendation. If all the time granted to prepare motions is excluded, only 65 days of nonexcludable time elapsed between petitioner's arraignment and the start of his trial, even if one includes the 44 days that the court be low excluded as time for filing objections to the magis trate's report and recommendation-the 45 days calcu lated by the court below, minus the 24 days of prepara tion time included by the court below because of its ca veat, plus the 44 days attributable to the objections pe riod.

In addition, this Court's decision in Bloate is likely to provide guidance on the scope of both the general exclu sion in Section 3161(h)(1) and the specific exclusion in Subsection (h)(1)(F). The Court's guidance on the scope of those provisions may well shed light on the correct resolution of the question whether the time for filing objections to a magistrate's report and recommendation on pretrial motions is properly excluded under the pro visions. Accordingly, if this Court decides Bloate in a way that does not render that question irrelevant to the resolution of petitioner's STA claim, then the Court may wish to vacate the decision below with respect to that question and remand the case for further consideration in light of Bloate.3

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's decision in Bloate v. United States, cert. granted, No. 08-728 (Apr. 20, 2009), and then dis posed of accordingly.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
SANGITA K. RAO
Attorney

JULY 2009

1 On October 13, 2008, Congress enacted the Judicial Administration and Technical Amendments Act of 2008 (2008 Act), Pub. L. No. 110-406, 122 Stat. 4291, which makes certain technical changes to the STA. Among other things, the 2008 Act redesignates 18 U.S.C. 3161(h)(1)(F) as 18 U.S.C. 3161(h)(1)(D); 18 U.S.C. 3161(h)(1)(J) as 18 U.S.C. 3161(h)(1)(H); and 18 U.S.C. 3161(h)(8) as 18 U.S.C. 3161(h)(7). § 13, 122 Stat. 4294. All citations to the STA in this brief refer to the pre- 2008 Act version of the statute, as codified in the 2006 edition of the United States Code.

2 With respect to 12 additional days that petitioner challenged in the court of appeals but had failed to challenge in the district court, the court of appeals noted that "[t]he [STA] provides that '[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.' 18 U.S.C. § 3162(a)(2)." Pet. App. 46a. The court further observed that, "[e]ven if [petitioner] had raised these periods of delay, they would constitute only twelve additional days on the clock," resulting in a total of 57 nonexcludable days, "fewer than the 70 allowed by the [STA]." Ibid.

3 Plenary review by this Court of the second question presented is not warranted. The ruling of the court below that the time for filing ob jections to a magistrate judge's report and recommendation is excluded under Section 3161(h)(1) is supported by this Court's decision in Hen derson v. United States, 476 U.S. 321, 330 (1986), and consistent with the decision of every court of appeals that has resolved the question since Henderson was decided. See United States v. Harris, 566 F.3d 422, 430 (5th Cir. 2009); United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991), cert. denied, 502 U.S. 1103 (1992); United States v. Long, 900 F.2d 1270, 1275 (8th Cir. 1990). Contrary to petitioner's con tention (Pet. 18), the Tenth Circuit in United States v. Mora, 135 F.3d 1351 (1998), did not resolve this issue. See id. at 1357 (holding that a magistrate judge "is subject to the thirty-day 'under advisement' period set forth in subsection (J)" and that the district judge is entitled to an "additional [30-day] excludable period in order to properly review the magistrate's report and recommendation," without specifically consi dering the question whether the ten-day period for filing objections is excludable). The two court of appeals decisions that have resolved the issue differently from the four courts of appeals that have held the ten- day period for filing objections is excludable time both predate Hender son. See United States v. Thomas, 788 F.2d 1250, 1257 (7th Cir.), cert. denied, 479 U.S. 853 (1986); United States v. Robinson, 767 F.2d 765, 769 (11th Cir. 1985). Confronted with the same question today, those courts of appeals might well resolve the question consistently with Hen derson and with the courts of appeals that have addressed the question more recently. Accordingly, this Court's resolution of the question is not warranted at this time.