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\deflang1033\pard\plain\f0\fs17 
\par No. 94-1924
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par JOHN E. HAYES, JR., PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE ELEVENTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JO ANN HARRIS
\par Assistant Attorney General
\par 
\par THOMAS E. BOOTH
\par Attorney
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------                     
\par 
\par QUESTION PRESENTED
\par 
\par Whether petitioner's Sixth Amendment right to a
\par speedy trial was violated by the sealing of the indict-
\par ment against him in order to facilitate the apprehen-
\par sion of his overseas co-defendant.
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Page
\par 
\par Opinion  below . . . . 1
\par Jurisdiction . . . . 1
\par Statement . . . .  1
\par Argument . . . .  5
\par Conclusion . . . . 10
\par 
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Barker v. Wingo, 407 U.S. 514 (1972) . . . . 4, 5, 6, 8 
\par Doggett v. United States, 112 S. Ct. 2686(1992) . . . . 5-6, 7, 9 
\par Peretz v. United States, 501 U.S. 923 (1991) . . . .  8
\par United States v. DeClue, 899 F.2d 1465(6th Cir. 1990) . . . . 8 
\par United States v. Keller, 956 F.2d 1408 (7th Cir. 1992) . . . .  6, 7
\par United States v. Olano, 113 S. Ct. 1770 (1993) . . . .  5, 8, 9
\par United States v. Riley, 991 F.2d 120 (4th Cir.), cert.
\par denied, 114 S. Ct. 392 (1993) . . . . 8
\par United States v. Tranakos, 911 F.2d 1422 (lOth Cir.
\par 1990) . . . .  6, 8
\par United States v. Walker, 1 F.3d  423(6th Cir. 1993) . . . . 6 
\par Yakus v. United States, 321 U.S. 414 (1944) . . . . 8
\par Zafiro v. United States, 113 S. Ct. 933(1993) . . . . 6
\par 
\par Constitution and statutes:
\par 
\par U. S. Const. Amend. VI . . . .  4, 5
\par Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq . . . . 3 
\par 18 U.S.C. 3161(h)(8)(B)(ii) . . . . 3, 7
\par 18 U.S.C. 371 . . . . 2
\par 18 U.S.C. 1343 . . . . 2
\par  18 U.S.C 2314 . . . . 2 
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par 
\par NO. 94-1924
\par 
\par JOHN E. HAYES, JR., PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par    FOR THE ELEVENTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par OPINION BELOW
\par 
\par The opinion of the court of appeals (Pet. App. 1-11) is
\par reported at 40 F.3d 362.
\par 
\par JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par December 20, 1994. A petition for rehearing was
\par denied on March 2, 1995. Pet. App. 12-13. The petition
\par for a writ of certiorari was filed on May 22, 1995. The
\par jurisdiction of this Court is invoked under 28 U.S.C.
\par 1254(1).
\par 
\par STATEMENT
\par 
\par Following a jury trial in the United States District
\par Court for the Northern District of Georgia, peti-
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par tioner was convicted of conspiracy to commit wire
\par fraud and interstate transportation of money taken by
\par fraud, in violation of 18 U.S.C. 371; two substantive
\par wire fraud counts, in violation of 18 U.S.C. 1343; and
\par interstate transportation of money taken by fraud, in
\par violation of 18 U.S.C. 2314. He was sentenced to a
\par total of 83 months' confinement and a fine. The court
\par of appeals affirmed. Pet. App. 1-11, 16-17.
\par 1. Between 1977 and 1981, petitioner, Frederick
\par Thom, and others executed a fraudulent tax-shelter
\par scheme that deprived investors of nearly $14 million.
\par Petitioner falsely told investors that he had estab-
\par lished a grantor trust to trade in gold bullion and
\par foreign currency on margin in foreign markets, and
\par that the trades would yield profits and tax benefits for
\par the investors. Petitioner also falsely represented
\par that the trades would be handled by reputable
\par financial institutions in Switzerland. In fact, peti-
\par tioner diverted the investors' money into organiza-
\par tions that either he or Thom controlled, and carried
\par out a series of sham transactions to deceive investors
\par that their money was being traded as advertised. In
\par addition, petitioner sent false trading documents to
\par investors to conceal the fraudulent scheme.  Gov't
\par C.A. Br. 5-14.
\par On March 9, 1987, petitioner and Thom were
\par indicted  for their fraudulent scheme. On the govern-
\par ment's motion, the district court sealed the
\par indictment to facilitate the arrest of Thom, a foreign
\par national who was then known to be residing in
\par Zimbabwe. The court ordered the government to file
\par a status report at least every 90 days detailing its
\par efforts to arrest and extradite Thom. On February 9,
\par 1988, a superseding indictment was returned against
\par petitioner, Thom, and others. That indictment was
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par also sealed, subject to the same reporting obligation.
\par Pet. App. 2-3.
\par Between 1987 and November 29, 1991, the govern-
\par ment filed 17 status reports with the district court.
\par Those reports described the government's lengthy
\par and complex diplomatic efforts to obtain Thom's
\par arrest, and noted that securing Thom's arrest had
\par been greatly complicated by the fact that the United
\par States and Zimbabwe had no extradition treaty.
\par Specifically, the government asked Zimbabwe several
\par times to arrest and deport Thom. Those efforts were
\par unsuccessful. The government next asked the United
\par Kingdom to intercede on its behalf. Those efforts also
\par failed. In addition, during the period in which the
\par indictment was sealed, Thom was reported to have
\par twice left Zimbabwe temporarily.  During those
\par periods, the United States took steps to locate him
\par elsewhere. Those steps included making inquiries to
\par the embassy of Zimbabwe and to Interpol. On January
\par 16, 1992, having exhausted avenues to secure Thom's
\par presence, the government asked that the indictment
\par be unsealed, so that it could proceed to trial against
\par petitioner. Pet. App. 6-7,21-54.
\par Petitioner was arraigned on February 5, 1992. On
\par March 10, 1992, petitioner moved that his case be
\par certified as complex under 18 U.S.C. 3161(h)(8)(B)(ii),
\par and waived his rights under the Speedy Trial Act of
\par 1974, 18 U.S.C. 3161 et seq., so that he could prepare
\par his defense. The district court granted that motion
\par the following day, and excluded the period between
\par June 1,1992, and November 2, 1992, the date that trial
\par began, from Speedy Trial Act calculations. In the
\par district court, petitioner did not claim that any of his
\par constitutional rights had been violated by the sealing
\par of the indictment. Pet. App. 3-4.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par 2. The court of appeals affirmed petitioner's
\par conviction. It rejected petitioner's claim that he was
\par denied due process of law because of pre-indictment
\par delay, as well as his claim that his Sixth Amendment
\par right to a speedy trial had been violated by the delay
\par between indictment and trial. The court reviewed
\par those two claims for plain error, because petitioner
\par had not raised them in the district court. Pet. App.
\par 4-5. 
\par The court rejected petitioner's claim of pre-indict-
\par ment delay because petitioner had not shown "that
\par the delay was the product of deliberate action by the
\par Government to gain a tactical advantage." Rather,
\par the court noted, the delay resulted from the
\par government's continuing investigation. Pet. App. 3-4.
\par Evaluating petitioner's speedy trial claim, the
\par court considered the four factors  identified in Barker
\par v. Wingo, 407 U.S. 514 (1972): the length of the delay,
\par the cause of that delay, whether and when the
\par defendant requested a speedy trial, and the prejudice
\par to the defendant. The court concluded that the five-
\par year period between indictment and trial was long
\par enough to warrant examination of the other factors
\par identified in Barker. Pet. App. 6. With respect to the
\par cause for the delay, the court concluded that sealing
\par the indictment had been necessary to facilitate the
\par government's legitimate goal of arresting co-
\par defendant Thom, and that "the Government's per-
\par sistence in trying to locate Thom was not unreason-
\par able." Pet. App. 7. The court noted that the govern-
\par ment had been -diligent in its efforts to apprehend
\par Thom It had sought the help of Zimbabwe officials
\par directly, it had enlisted the United Kingdom to
\par intercede on its behalf, and it had attempted to locate
\par Thom when he was believed to have left Zimbabwe
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par temporarily. Id. at 6-7. The court also noted that
\par petitioner had neither requested a speedy trial nor
\par raised a speedy trial claim in the district court.
\par Instead, the court observed, he had effectively delayed
\par trial by successfully moving to have the case declared
\par "complex," thus resulting in the exclusion of time
\par from Speedy Trial Act calculations. Id. at 8. Finally,
\par the court held, petitioner's "conclusory" claims of
\par prejudice did not meet his burden to establish actual
\par prejudice. Ibid.
\par 
\par ARGUMENT
\par 
\par Petitioner claims (Pet. 10-29) that he was denied
\par his Sixth Amendment right to a speedy trial because
\par of the delay that occurred while the government
\par attempted to secure the arrest of his co-defendant.
\par The court of appeals' application of the four-factor
\par test set forth in Barker  v. Wingo, 407 U.S. 514 (1972),
\par to the facts of this case was correct and, as petitioner
\par implicitly concedes, does not conflict with any court
\par of appeals decision. See Pet. 10 (noting novelty of the
\par issue). Review is also unwarranted because the court
\par of appeals correctly applied the plain-error standard
\par of  review, see United States v. Olano, 113 S. Ct. 1770
\par (1993), and its treatment of the Barker factors is
\par therefore inapposite to cases in which speedy trial
\par claims were properly raised in the district court.
\par In Barker, this Court identified four factors to be
\par taken into account in determining whether the Sixth
\par Amendment right to a speedy trial has been violated:
\par the length of the delay, the reason for the delay,
\par whether and when the defendant asserted his right to
\par a speedy trial, and whether the defendant was
\par prejudiced by the delay. Barker, 407 U.S. at 530; see
\par also Doggett v. United States, 112 S. Ct. 2686, 2690
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par (1992). The Court identified the first factor, length of
\par delay, as "to some extent a triggering mechanism," in
\par that unless there is a period of delay that is
\par presumptively prejudicial, "there is no necessity for
\par inquiry into the other factors that go into the
\par balance." Barker, 407 U.S. at 530. The five-year
\par period between petitioner's indictment and trial was
\par sufficiently long to warrant consideration of the
\par other Barker factors, see Doggett, 112 S. Ct. at 2691,
\par but those factors cut against petitioner's claim.
\par As for the second Barker factor, the delay was
\par caused by the government's extensive efforts to
\par arrest and extradite petitioner's co-defendant, Thom.
\par As the court of appeals held, the government rea-
\par sonably concluded that those efforts could have been
\par compromised had Thom been aware that an indict-
\par ment was pending against him. See Pet. App. 6. 1. The
\par government's interest in apprehending a co-defendant
\par or securing the presence of an important witness has
\par consistently been recognized as a legitimate basis for
\par pretrial delay. See, e.g., United States v. Walker, 1
\par F.3d 423, 427 (6th Cir. 1993) (delay caused by the need
\par to take the deposition of a witness in a foreign
\par country); United States v. Koller, 956 F.2d 1408. 1413-
\par 1415 (7th Cir. 1992) (unavailability of a government
\par witness); United States v. Tranakos, 911 F.2d 1422,
\par 1428 (10th Cir. 1990) (unavailability of a co-defendant).
\par The lengthy period (more than four years) during
\par 
\par ___________________(footnotes)  
\par 
\par 1 Apart from its interest in not interfering with Thom's
\par possible arrest and extradition, the government had a separate
\par interest in trying petitioner and Thom together, to save
\par judicial resources and to reduce the possibility of inconsistent
\par verdicts. See Zafiro v. United States, 113 S. Ct. 933, 937
\par (1993).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par which the indictment was sealed in this case reflected
\par the inherent difficulty of obtaining assistance from a
\par country, Zimbabwe, that did not have an extradition
\par treaty with the United States, and of the other
\par diplomatic measures taken by the government. And
\par as the court of appeals held (Pet. App. 7), the govern-
\par ment made "persistent and documented efforts to
\par prosecute Thom." See Doggett v. United States, 112
\par S. Ct. at 2691 (deference is due findings below re-
\par garding whether government sought to find indicted
\par defendant with diligence). 2.
\par The third Barker factor, assertion of the speedy
\par trial right, also does not support petitioner's claim.
\par Petitioner did not demand a speedy trial in the
\par district court. In fact, far from vigorously pursuing a
\par speedy trial in the district court, see United States v.
\par Koller, 956 F.2d at 1414, petitioner waived his rights
\par under the Speedy Trial Act by asking that the case be
\par certified as complex under 18 U.S.C. 3161(h) (8)( B)(ii). 3
\par 
\par ___________________(footnotes)              
\par 
\par 2 Petitioner notes (Pet. 15-16) that the record is silent as to
\par whether the district court ever required the government to
\par justify (apart from its 17 status reports) the length of the delay
\par caused by the attempts to arrest and extradite Thom. Those
\par statue reports, however, supply an ample justification for that
\par delay. To the extent that petitioner argues that a fuller record
\par on that question would have been beneficial, petitioner, by
\par failing to raise any speedy trial claim below, bears responsibility
\par for the lack of additional evidence. Petitioner also argues (Pet.
\par 15) that the court of appeals erred by not independently
\par appraising whether it was in fact realistic to believe that the
\par government would apprehend Thom. But apart from noting
\par that Thom successfully eluded the government, petitioner
\par offers no basis for believing that the government's intention of
\par arresting Thom was unreasonable.
\par 3 Petitioner appears to argue (Pet. 23-26) that, because the
\par existence of a demand for a speedy trial is but one of the four
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par Finally, petitioner failed to demonstrate actual
\par prejudice to his defense from the delay. As the court
\par of appeals noted (Pet. App. 8), petitioner's conclusory
\par claims of possible lost evidence and dimmed memories
\par were speculative, and hence insufficient to show
\par prejudice. See; e.g., United States v. Riley, 991 F2d
\par 120, 124 (4th Cir.), cert. denied, 114 S. Ct. 392 (1993);
\par United States v. DeClue, 899 F.2d 1465, 1471 (6th Cir.
\par 1990). 4.
\par 
\par ___________________(footnotes)
\par 
\par factors to be considered under Barker, the court of appeals
\par misapplied Barker when it held that his failure to claim a
\par speedy trial violation in the district court triggered the plain
\par error standard of review and required him to establish
\par prejudice. The issue of whether a defendant has demanded a
\par speedy trial in the district court, however, is separate from the
\par issue of whether the absence of a speedy trial objection in the
\par district court gives rise to plain-error review. Barker rejected
\par a proposed rule that a defendant who fails to demand a speedy
\par trial in the district court forfeits his right to do so, holding
\par instead that the presence or absence of such a demand is "is one
\par of the factors to be considered in an inquiry into the depri-
\par vation of the right."  407 U.S. at 5.28. Barker, however, did
\par not in any way disturb the familiar rule that a defendant who
\par fails to preserve a claim of a constitutional violation in the
\par district court faces plain error review if he raises such a claim
\par on appeal. Id. at 518-519. See United  States v. Olano, 113 S.
\par Ct. at 1776; Yakus v. United States, 321 U.S. 414, 444 (1944);
\par see also Peretz v. United States, 501 U.S. 923, 936 (1991)
\par (collecting cases).
\par 4 Petitioner's claim (Pet. 28) that a government witness
\par suffered a memory lapse on cross-examination does not
\par demonstrate that he was prejudiced by that lapse. See United
\par States v. Tranakos, 911 F.2d at 1429 (impaired memory of
\par prosecution witness not prejudicial for speedy trial purposes)
\par (collecting cases).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par Petitioner's reliance (Pet. 26-29) on Doggett to
\par excuse him from demonstrating actual prejudice is
\par misplaced.  In Doggett, this Court held that the
\par government's extreme negligence in not bringing the
\par defendant to trial for eight and one-half years justi-
\par fied presuming prejudice to the defendant's ability to
\par defend himself -a presumption that the government
\par in Doggett was unable to rebut. 112 S. Ct. at 2693-2694
\par & n.4. In this ease, by contrast, the court of appeals
\par did not find negligent conduct by the government, but
\par rather, that the government acted diligently in
\par bringing petitioner to trial. When the government is
\par able to justify its delay, it remains the defendant's
\par burden to establish specific prejudice. See Doggett,
\par 112 S. Ct. at 2693 ("Thus, in this case, if the
\par Government had pursued Doggett with reasonable
\par diligence from his indictment to his arrest, his speedy
\par trial claim would fail. Indeed, that conclusion would
\par generally follow as a matter of course however great
\par the delay, so long as Doggett could not show specific
\par prejudice to his defense."). In any event, in light of
\par the applicability of the plain error standard, peti-
\par tioner bore the burden to establish actual prejudice,
\par Pet. App. 8; Olano 113 S. Ct. at 1778, and his failure to
\par do so precludes any relief.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 10
\par 
\par CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par 
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JO ANN HARRIS
\par Assistant Attorney General
\par 
\par THOMAS E. BOOTH
\par Attorney
\par 
\par JULY 1995
\par 
\par 
\par }