MARTIN R. KUCIK, PETITONER V. UNITED STATES OF AMERICA No. 90-6007 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 Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-13) is reported at 909 F.2d 206. The speedy trial findings of the district court (Pet. App. 20-26) are not reported. JURISDICTION The judgment of the court of appeals was entered on July 30, 1990. The petition for a writ of certiorari was filed on October 19, 1990. The jurisdiction of this Court in invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's motion for a copy of a transcript of an earlier trial tolled the 70-day period for commencing his retrial under the Speedy Trial Act, 18 U.S.C. 3161 et. seq. STATEMENT Following a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted on four counts of stealing cashier's checks from a federally insured bank, in violation of 18 U.S.C. 2113(b). He was sentenced to imprisonment for a year and a day on Count 1, to be followed by five years' probation on the remaining counts. As a condition of probation, petitioner was ordered to pay $301,000 in restitution. The court of appeals affirmed. Pet. App. 1-13. 1. Briefly summarized, the evidence at trial showed that petitioner had personal accounts at the federally insured State Bank of Countryside, Illinois, and at the Credit Union of Local 150 of the International Union of Operating Engineers. By writing unfunded share drafts on his credit union account, petitioner purchased more than $3 million in cashier's checks from the State Bank during the period between December 1981 and April 1982. He paid for the share drafts by depositing the cashier's checks into his credit union account. Though the use of this check-kiting scheme, petitioner was able to withdraw for his personal use more than $300,000 from his credit union account. Ultimately, the State Bank stopped payment on some cashier's checks, causing the credit union to suffer a loss of $301,000. The cashier's checks that were the subject of the indictment totaled $581,000. Gov't C.A. Br. 2, 6-8. 2. Petitioner was indicted in 1986. He was convicted following a jury trial, but his conviction was reversed on appeal because of an erroneous jury instruction. United States v. Kucik, 844 F.2d 493 (7th Cir. 1988). Petitioner's retrial ended in a mistrial on December 15, 1988, when the jury could not reach a verdict. Thereafter, on January 13, 1989, petitioner sought a copy of the transcript of his second trial by filing a "Motion for Order Providing Transcript to Defendant" pursuant to the Criminal Justice Act, 18 U.S.C. 3006A. Gov't C.A. Br. 8-10. At a hearing on January 20, 1989, the district court initially granted petitioner's motion. After the government advised the court that it had still not decided whether to retry petitioner, however, the court stayed the resolution of petitioner's motion for one week "until the government determines whether there will be a third trial." Pet. App. 18. Defense counsel informed the court that he had "no problem" with waiting for the government's answer. Ibid. Without any objection from petitioner, the court gave the government one week to make that decision. On February 1, 1989, the government informed the court that it would retry petitioner, and the district court ordered the court reporter to prepare the transcript. Gov't C.A. Br. 10. On March 10, 1989, 84 days after the mistrial had been declared, petitioner moved to dismiss the indictment. He alleged that the 70-day period for commencing his retrial had been exceeded by 14 days, in violation of the Speedy Trial Act, 18 U.S.C. 3161 et seq. The district court denied the motion on March 20, 1989. Petitioner was subsequently tried and convicted on all counts. 3. The court of appeals affirmed. The court found that the 70-day limit of the Speedy Trial Act was not exceeded, because the period between the filing of petitioner's motion for a transcript on January 13, 1989, and the hearing on the motion on January 20, 1989, was excludable under the pretrial motion provision of the Act, 18 U.S.C. 3161(h)(1)(F). Further, the period between the hearing and the disposition of the motion on February 1, 1989, was excludable as time during which the motion was under advisement, pursuant to 18 U.S.C. 3161(h)(1)(J). In any event, where petitioner agreed to give the government time to decide whether to retry him as a condition precedent to ordering the transcript, he waived his right to challenge the exclusion of this period. Accordingly, after excluding the 19 days during which the transcript motion was pending, the court found that only 65 speedy trial days had elapsed and the Act was not violated. Pet. App. 5-9. ARGUMENT The courts below properly excluded the 19-day period between the filing of petitioner's motion for a copy of the transcript of his second trial and the date on which the district court ordered the copy. The Speedy Trial Act broadly excludes delay attributable to "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. See, e.g., United States v. Merritt, 882 F.2d 916, 920 (5th Cir. 1989); 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). That construction of the statute does not deprive indigent defendants of their statutory right to a speedy trial, as petitioner suggests. The Speedy Trial Act recognizes that there is an enormous variety of motions that may be filed in a criminal case, and the Act uniformly stops the clock for all of them. While indigent defendants have to seek court orders to obtain certain benefits that non-indigent defendants can obtain simply by paying for them, the requirement of obtaining a court order does not constitute impermissible discrimination against indigents, as long as the benefits are not unreasonably withheld. See United States v. Sanders, 459 F.2d 1001, 1002 (9th Cir. 1972); United States v. Schappel, 445 F.2d 716, 721 n.13 (D.C. Cir. 1971); United States v. Schultz, 431 F.2d 907 (8th Cir. 1970). By the same token, the fact that an indigent defendant's motions may generate excludable Speedy Trial Act time does not render Section 3161(h)(1)(F) unconstitutional. Because a court in a case involving an indigent defendant may have more motions to resolve, it is reasonable for the Speedy Trial Act to provide additional time within which to resolve those motions. United States v. Mentz, 840 F.2d 315 (6th Cir. 1988), on which petitioner relies, does not conflict with the decision below. In Mentz, the defendant filed a discovery motion, but the court never ruled on it because the parties complied with their discovery obligations without judicial intervention. Id. at 327-328. The court of appeals held that where a motion is unnecessary and is never ruled on or taken under advisement, the motion has no effect on the speedy trial clock. In contrast to the discovery motion in Mentz, however, the motion in this case required and received action by the district court. Pursuant to 18 U.S.C. 3006A(e)(1), an indigent defendant may make an ex parte application to the district court for services that are "necessary for adequate representation." In this case, the court could not determine whether the transcript of the second trial was necessary for petitioner's adequate representation at a retrial until the government had decided whether it would try peitioner a third time. Accordingly, the court could not finally rule on petitioner's motion until the government announced on February 1, 1989, that it would try him again. /1/ Petitioner's argument that his motion was in fact "granted" on January 20, 1989, and that both courts below therefore erred in excluding the period between January 20 and February 1, is not supported by the record. Although the district court initially "granted" the motion at the January 20 hearing, it reconsidered its ruling only moments later when the government announced that it had not yet decided whether to reprosecute petitioner: "Then with respect to the ordering of transcript, we'll stay that until the Government determines whether there will be a third trial." Pet. App. 18. See also Pet. App. 19 ("As soon as I know what the Government intends to do, I'll take the necessary action."). The entire period between the filing of the motion for a transcript on January 13 and the actual grant of that motion 19 days later was thus subject to exclusion under the pretrial motion provisions of the Act, 18 U.S.C. 3161(h)(1)(F) and (h)(1)(J). See Henderson v. United States, 476 U.S. 321 (1986). /2/ 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 DECEMBER 1990 /1/ Petitioner mistakenly relies on the fact that the government took no position on his right to a transcript to advance his claim that his motion did not stop the speedy trial clock. The Act does not distinguish between unopposed and contested motions. In this case, the transcript motion required judicial action, and the court could not fulfill its statutory obligation to allow only those services that are "necessary" until it learned whether the government would retry petitioner. /2/ In light of the fact that the period between January 13, 1989, and February 1, 1989, was excludable from the 70-day period for commencing petitioner's retrial, there is no reason to address his claim that a defendant cannot waive his rights under the Speedy Trial Act. In any case, we submit that on that point the court of appeals correctly held that although a defendant should not be permitted to subvert the public's right to a speedy trial (see United States v. Carrasquillo, 667 F.2d 382, 388-390 (3d Cir. 1982)), he cannot contest the excludability of a certain period of delay where he has actively participated in that delay. United States v. Pringle, 751 F.2d 419, 434 (1st Cir. 1984), on appeal from remand, 780 F.2d 743 (1985), vacated on other grounds, 479 U.S. 805 (1986); United States v. Kington, 875 F.2d 1091, 1108 (5th Cir.), rehearing denied, 878 F.2d 815 (1989). In this case, where petitioner agreed on January 20, 1989, that the government should be given extra time to decide whether it would retry him, he cannot complain about the exclusion of the resulting delay.