PETER NOONE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6417 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 First Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. B) is reported at 913 F.2d 20. The opinion of the district court (Pet. App. A) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 6, 1990. The petition for a writ of certiorari was filed on December 3, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the period between petitioner's psychiatric examination and the district court's determination of competency was properly excluded from the 70-day period for commencing trial under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. STATEMENT Following a jury trial in the United States District Court for the District of Massachusetts, petitioner was convicted of conspiracy maliciously to damage or destroy property used in interstate commerce (Count 3), in violation of 18 U.S.C. 371, and malicious damaging of such property (Count 4), in violation of 18 U.S.C. 844(i). He was sentenced to concurrent terms of two and one-half years' imprisonment on each count. The court of appeals affirmed. Pet. App. B (913 F.2d 20). /1/ 1. Petitioner's brother, Kevin, had a longstanding dispute with the owner of the Plaza Auto Clinic in Chicopee, Massachusetts. Plaza Auto Clinic is in the business of buying and selling cars interstate. To avenge the dispute, on April 20, 1987, Kevin, petitioner, and several accomplices built and planted an explosive bomb beneath a 1972 Mercedes Benz in the Auto Clinic parking lot. The bomb detonated and damaged a commercial building and five cars. Both before and after the bombing, petitioner made threatening calls to the Auto Clinic. 913 F.2d at 23; Gov't C.A. Br. 7-19. 2. Petitioner was indicted on February 17, 1988. He remained a fugitive until he was arrested in New York on June 16, 1988. He first appeared on the indictment in the District of Massachusetts on July 1, 1988, at which time the government moved for pretrial detention. Despite instructions to obtain counsel, petitioner appeared in court on both July 6 and July 13 without counsel. At the second hearing, the government filed a motion for a psychiatric examination and for a determination of petitioner's competency to stand trial. On July 29, the magistrate ordered petitioner to undergo a psychiatric evaluation at the Federal Correctional Institution at Butner, North Carolina, both to determine criminal responsibility and competency to stand trial. Petitioner arrived at Butner on September 8, but owing to his lack of cooperation, the examination period was extended first to October 23 and then to November 22. The magistrate received the examination report on December 19. Although the record does not disclose when petitioner left Butner, /2/ he was present at a bail review hearing in Massachusetts on January 6, 1989. At that hearing, the magistrate ruled him competent to stand trial, and defense counsel moved to withdraw because of petitioner's lack of cooperation. That motion was granted, and over the next two months, petitioner failed to obtain new counsel, despite the magistrate's order that he do so. On March 6, 1989, after the magistrate appointed a federal defender to represent petitioner, he was finally arraigned on the indictment. 913 F.2d at 23-24; Gov't C.A. Br. 2-5. Subsequently, petitioner filed a motion to dismiss the indictment alleging a violation of the Speedy Trial Act, 18 U.S.C. 3161 et seq. He specifically contested the excludability of the delay between the government's motion for a determination of competency and the magistrate's finding that petitioner was competent. The district court denied petitioner's motion. The court held that the 70-day period for commencing trial did not begin to run until March 7, 1989, when the magistrate appointed a federal defender to represent petitioner and petitioner entered his not guilty plea: "(petitioner's) adamant refusal to retain counsel, his resistance to the appointment of counsel, his efforts to have a non-lawyer represent him, and his unwillingness to enter a plea have all directly or indirectly encouraged delay about which the defendant cannot now complain." Pet. App. A9. Accordingly, the district court did not count any of the delay attributable to petitioner's competency examination toward the 70-day period. Pet. App. A3-A9. 3. The court of appeals affirmed. The court held that the period between the filing of the motion for a determination of competency (July 1, 1988) and the magistrate's order of commitment for examination (July 29, 1988) was excludable under the pretrial motion provisions of the Speedy Trial Act, 18 U.S.C. 3161(h)(1)(F) and (J). 913 F.2d at 25. The court next held that 30 of the 40 days that elapsed between the magistrate's order and petitioner's arrival at Butner must be counted toward the 70-day period because Section 3161(h)(1)(H) limits the exclusion for transportation to and from the place of examination to 10 days, unless the government can explain why additional time for transportation was needed. Because no explanation was proffered here, only 10 days were subject to exclusion. 913 F.2d at 25-26. On the other hand, the court held that the entire period during which petitioner was at Butner for psychiatric examination was excludable under Section 3161(h)(1)(A). The court rejected petitioner's argument that psychiatric examinations must be completed within 45 days. The court observed that 18 U.S.C. 4242 allows a 30-day extension of the examination for good cause, and that the magistrate properly extended the examination period here. 913 F.2d at 26. Moreover, the period between the completion of the examination and the magistrate's receipt of the examination report was also excludable under Section 3161(h)(1)(A), which "at a minimum, excludes a reasonable period pending delivery of the report to the court." 913 F.2d at 27. Under the same subsection of the Act, the period between receipt of the report and the January 6, 1989, hearing was also excludable. Ibid. Accordingly, the court found that because only 30 non-excludable days elapsed during the pre-arraignment period and only 25 non-excludable days elapsed thereafter, the 70-day limit of the Act was not exceeded. 913 F.2d at 28. ARGUMENT Petitioner contends that the court of appeals improperly excluded from its Speedy Trial Act calculations the 27-day period between the end of petitioner's psychiatric examination (November 22, 1988) and the magistrate's receipt of the examination report (December 19, 1988). The court of appeals' decision, however, is correct and does not conflict with any decision of this Court or another court of appeals. Petitioner does not dispute that the period between the termination of a psychiatric examination and the preparation and mailing of the report is normally excluded from speedy trial calculations under Section 3161(h)(1)(A), which broadly excludes any period of "delay resulting from any proceeding, including any examinations, to determine mental competency or physical capacity of the defendant." 18 U.S.C. 3161(h)(1)(A). See Pet. 7-8. See United States v. Vasquez, 918 F.2d 329, 333 (2d Cir. 1990) (excluding delay through the competency hearing); United States v. Jones, 801 F.2d 304, 316 (8th Cir. 1986) (same); United States v. Howell, 719 F.2d 1258, 1261 (5th Cir. 1983) (excluding delay through the filing of the psychiatric evaluation report), cert. denied, 467 U.S. 1228 (1984). Petitioner nevertheless argues that the exclusion should be disallowed in this case because he was not promptly returned from the Butner correctional facility to Massachusetts when the examination was finished. Pet. 6-8. There is no basis in the Speedy Trial Act for withholding the exclusion on that ground. Even if petitioner was illegally confined at Butner, his only remedy was release. The Speedy Trial Act does not require dismissal for excessive detention in a psychiatric institution. See United States v. Theron, 782 F.2d 1510, 1515 (10th Cir. 1986) (Speedy Trial Act remedy for excessive pretrial detention is release); United States v. Diaz-Alvarado, 587 F.2d 1002, 1004 (9th Cir. 1978) (no dismissal sanction for excessive pretrial detention), cert. denied, 440 U.S. 927 (1979). Cf. United States v. Montalvo-Murillo, 110 S.Ct. 2072, 2077 (1990) ("There is no presumption or general rule that for every duty imposed upon the court or the government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent."). Nor is there merit to petitioner's suggestion that the examination report would have been completed more promptly if he had been sent back to Massachusetts sooner. There is nothing in the record that supports this speculation, and indeed, it is unlikely that the examining physician's ability to complete the report was in any way delayed by petitioner's continued presence at Butner. In any event, Section 3161(h)(1)(A) does not contain a "reasonableness" limitation, but instead excludes without qualification "any period of delay" resulting from "any proceeding" to determine mental competency. United States v. Vasquez, supra. Cf. Henderson v. United States, 476 U.S. 321, 326-330 (1986) (pretrial motion exclusion is not limited to delay that is "reasonably necessary"). In short, the decision below comports with the plain language of the Speedy Trial Act and does not conflict with a decision from any other circuit. Accordingly, there is no warrant for further review of petitioner's statutory speedy trial claim. /3/ 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 FEBRUARY 1991 /1/ Petition Appendix B, which consists of a copy of the reported court of appeals' decision, is not separately paginated. For convenience, we hereafter will cite the reported court of appeals' decision. /2/ Petitioner states in his petition (Pet. 6, n.2) that he left Butner on December 28, 1988. The actual date of his departure does not alter the speedy trial analysis, as both courts below found. /3/ Alternatively, the district court properly held that none of the time preceding petitioner's arraignment in March 1989 counted toward the 70-day limit for commencing trial. Although the 70-day period usually starts with a defendant's first appearance in the charging district, see 18 U.S.C. 3161(c)(1), petitioner's lack of cooperation in securing counsel caused his arraignment to be postponed for eight months. The government could not go forward with the prosecution until petitioner entered his plea of not guilty. Where a defendant engages in dilatory tactics to delay trial, he cannot contest the excludability of the elapsed time. See United States v. Pringle, 751 F.2d 419, 434 (1st Cir. 1984), on appeal from remand, 780 F.2d 143 (1985), vacated on other grounds, 479 U.S. 805 (1986); see also United States v. Kington, 875 F.2d 1091, 1108 (5th Cir. 1989).