MARCO ANTHONY SANTOYO, PETITIONER V. UNITED STATES OF AMERICA No. 89-6899 In The Supreme Court Of The United States October Term, 1989 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. A726-A728) is reported at 890 F.2d 726. JURISDICTION The judgment of the court of appeals (Pet. App. A728) was entered on December 6, 1989. The petition for a writ of certiorari was filed on March 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the courts below properly excluded the delay attributable to pretrial motions in calculating whether petitioner's trial commenced within 70 days of his indictment, as required by 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 Western District of Texas, petitioner was convicted on two counts of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to consecutive terms of 15 years' imprisonment, and he was assessed $50 on each count pursuant to 18 U.S.C. 3013. The court of appeals affirmed. 1. Briefly summarized, the evidence at trial, which is not in dispute, showed that on September 11, 1987, petitioner entered the Mulberry Avenue Branch of the Trinity National Bank in San Antonio, Texas. He jumped on the counter and ordered a teller to "give me your money." When the teller refused, petitioner reiterated his demand while wielding a knife or letter opener. The teller opened her cash drawer, and petitioner grabbed $8,642. On October 1, 1987, petitioner returned to the same bank and ordered a teller to give him her money. When the teller refused, he jumped on the counter, threatened her with an ice pick, and ordered her to step back. Petitioner removed $2,155 from her cash drawer. Gov't C.A. Br. 2-3. 2. An indictment returned on October 21, 1987, charged petitioner with both robberies. On December 3, 1987, after petitioner's pretrial motions were decided, the government filed a "Notice of Written Demand of Alibi Defense," requesting "that (petitioner) be required" to disclose his whereabouts at the time of the robberies, along with the names and addresses of any alibi witnesses. Gov't C.A. Br. 9-10. Petitioner filed his response on December 30, 1987, stating that he would not present an alibi defense. On February 8, 1988, petitioner filed a motion in limine in which he sought to exclude all evidence of other crimes. Gov't C.A. Br. 15-16. On February 16, the district court reserved ruling on this motion and ordered that the motion "shall be carried with the trial." Id. at 16. Also on that date, petitioner moved to dismiss the indictment alleging a violation of the Speedy Trial Act, 18 U.S.C. 3161 et seq.; the district court denied the motion that same day. Defense counsel then announced that he would appear as a witness for petitioner at trial, which was scheduled to begin that day. The government immediately moved to disqualify defense counsel, a federal public defender, and any other attorney from his office. The government sought permission to file a written motion seeking counsel's disqualification, and "to continue this case in order to give the Court and the parties an opportunity to brief this question to the Court." With respect to the continuance, the government requested "that the time will be excluded from the Speedy Trial Act." Gov't C.A. Br. 4. The government filed its written disqualification motion two days later. Petitioner's response, the government's reply, and a supplemental reply were filed on February 24, March 2, and July 25, 1988, respectively. The court disqualified defense counsel on October 13, 1988, but permitted another attorney from the federal public defender's office to represent petitioner. R.E. 54-60. /1/ The court also excluded all delay from February 18 to October 13 due to the pendency of the government's disqualification motion. R.E. 60. Citing the ends of justice provision of the Speedy Trial Act, 18 U.S.C. 3161(h)(8)(A), the court noted that a lengthy exclusion was permitted "due to the novelty of the issues involved with regard to the disqualification of Mr. Adams (petitioner's original attorney) and the continuance of the Public Defender Office on the case." R.E. 60. Trial began on October 17, 1988. On that date, petitioner again sought dismissal of the indictment on speedy trial grounds, and the district court denied the motion. R.E. 7. 3. The court of appeals affirmed, rejecting petitioner's arguments that two periods of delay should be counted toward the 70-day limit of the Speedy Trial Act. First, the court held that the speedy trial clock stopped when the government filed its Notice of Written Demand of Alibi on December 3, 1987, and that the entire period between the filing of that motion and the filing of petitioner's response 27 days later was excluded under the pretrial motion provision of the Act, 18 U.S.C. 3161(h)(1)(F). Refusing to "split semantic hairs," the court held that the pretrial motion exclusion applied even though the government called its pleading a "notice" rather than a "motion," and even though the district court did not have to take any action on the "notice." Pet. App. A727. The court also held that all of the time between the filing of petitioner's motion in limine (February 8, 1988) until the commencement of trial (October 17, 1988) was likewise excludable from speedy trial calculations under the pretrial motion provision. Pet. App. A728. The court explained that pending motions, including motions that have been carried "for hearing during trial," toll the clock "indefinitely." Ibid. ARGUMENT Petitioner contends that in calculating speedy trial time, both courts below improperly excluded 28 days during which the government's Notice of Written Demand of Alibi was pending (December 3 through December 30, 1987) and eight months during which the government's motion to disqualify defense counsel and petitioner's motion in limine were pending (February through October 1988). Both courts below correctly rejected these claims and found that petitioner's trial commenced within the statutory time limits. 1. Section 3161(h)(1)(F) excludes from speedy trial calculations "any period of delay * * * resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion" (emphasis added). Petitioner to the contrary (see Pet. 12), this Section broadly applies to all pretrial motions, whether or not they actually "cause" a postponement of trial. Henderson v. United States, 476 U.S. 321, 327 (1986) (exclusion is automatic). Accord United States v. Wilson, 835 F.2d 1440, 1443 (D.C. Cir. 1987); United States v. Rush, 738 F.2d 497, 502 (1st Cir. 1984), cert. denied, 470 U.S. 1004 (1985); United States v. Van Brandy, 726 F.2d 548, 550-551 (9th Cir.), cert. denied, 469 U.S. 839 (1984); United States v. Novak, 715 F.2d 810, 813 (3d Cir. 1983), cert. denied, 465 U.S. 1030 (1984); United States v. Stafford, 697 F.2d 1368, 1371-1372 (11th Cir. 1983); United States v. Cobb, 697 F.2d 38, 42 (2d Cir. 1982); United States v. Brim, 630 F.2d 1307, 1312-1313 (9th Cir. 1980), cert. denied, 452 U.S. 966 (1981). The Notice of Written Demand of Alibi was a "motion" within the meaning of Section 3161(h)(1)(F). United States v. Turner, 725 F.2d 1154, 1159-1160 (8th Cir. 1984) (excluding delay between the filing of the government's alibi motion and the defendant's response). It was filed with the court and sought relief from the court; namely, it asked that petitioner "be required" to disclose his alibi defense, if any. Indeed, Fed. R. Crim. P. 12.1 specifically contemplates that the district court will play a role where the government demands notice of an alibi defense. See, e.g., United States v. Braxton, 877 F.2d 556, 558 (7th Cir. 1989); United States v. Carter, 756 F.2d 310, 311 (3d Cir. 1985), cert. denied, 478 U.S. 1009 (1986). Rule 12.1 gives the court the power to set up the timetable for disclosure, to exclude evidence as a sanction for noncompliance, and to grant exceptions to the rule. See Fed. R. Crim. P. 12.1(a), (b), (d), and (e). That petitioner answered the motion by responding that he would proffer no alibi, thereby obviating the need for a ruling from the district court, is irrelevant to the question whether the government's pleading stopped the clock. The pretrial motion exclusion kicks in automatically, and it is not later nullified simply because a motion becomes moot. The parties must know as each day passes whether to count the day toward the 70-day limit. Thus, petitioner's statement that he would not present an alibi defense ended the exclusion, but it did not retroactively alter the status of the days that had already elapsed. Cf. United States v. Carlone, 666 F.2d 1112, 1115-1116 (7th Cir. 1981) (an exclusion, proper at the outset, cannot be rescinded once the time has passed to take into account subsequent developments). Contrary to petitioner's contention (Pet. 17), the decision below does not conflict with United States v. Mentz, 840 F.2d 315, 327-329 (6th Cir. 1988), where the court held that a discovery motion filed by the defendant did not toll the time limits of the Speedy Trial Act. The motion in that case did not involve an alibi defense, but was "merely a pro forma request for discovery directed at the government, rather than an invitation for district court intervention." Id. at 329. In this case, in contrast, as in Turner, supra, the motion sought the disclosure of an alibi defense, and district court intervention was contemplated pursuant to Rule 12.1. Moreover, in Mentz the government did not treat the discovery request as tolling the speedy trial limits of the Act, but instead introduced that argument in a supplementary appellate brief (see id. at 327), and therefore the government was not prejudiced by the determination of the court of appeals that the request had no effect on speedy trial time. In contrast, in this case the government relied in the district court on the fact that its pleading had stopped the clock. 2. The period between the original trial date in February 1988 and the commencement of trial in October 1988 /2/ is excludable under either of two theories. First, as the court of appeals held, the period can be excluded under the pretrial motion provision as time during which petitioner's motion in limine to exclude evidence of other crimes was pending. It is well settled that the entire period between the filing of a motion and the hearing on the motion is excludable under Section 3161(h)(1)(F). Henderson v. United States, supra, 476 U.S. at 330. The court "carried the motion for hearing during trial" (Pet. App. A728) (emphasis added), and therefore the entire period was excludable. /3/ In any event, the period was alternatively excludable as delay attributable to the government's disqualification motion, as the district court held. Petitioner waited until the day of trial -- February 16 -- to announce that his attorney would testify in his behalf. As a result of this announcement, trial had to be postponed while the court considered the government's motion to disqualify not only the specific public defender representing petitioner but also the entire federal public defender's office. /4/ The final pleading on this issue was filed on July 25, 1988. Although a district court normally is afforded only 30 excludable days to rule on a motion without a hearing once all the papers are filed (Henderson, supra, 476 U.S. at 321), the district court may extend the period where the motion is complex or presents a novel question. 18 U.S.C. 3161(h)(8)(B)(ii). Petitioner does not contend otherwise. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General PATTY MERKAMP STEMLER Attorney MAY 1990 /1/ "R.E." refers to the Record Excerpts filed in the court of appeals. /2/ Petitioner argues (Pet. 16-17) that such delays undermine the constitutionality of the Bail Reform Act of 1984. But nothing in the Speedy Trial Act precludes a defendant from seeking release when his pretrial detention becomes excessive. See, e.g., United States v. Ojeda Rios, 846 F.2d 167 (2d Cir. 1988). /3/ Petitioner misses the point when he argues (Pet. 12-13) that a motion in limine is not a "pretrial" motion because the district court can alter its ruling on the motion during trial. Whether or not the ruling may later be altered, motions in limine can be filed, responded to, and decided prior to trial. Accordingly, these motions are in every sense "pretrial" motions for speedy trial purposes. /4/ In his statement of facts, petitioner suggests (Pet. 7) that the continuance was granted "nunc pro tunc," that is, that the district court granted a retroactive continuance in October 1988 that extended back to the previous February. To the contrary, the continuance was granted at the outset. Trial was scheduled to begin on February 16. The district court continued the trial date at the government's request after defense counsel announced that day that he would appear as a witness for petitioner, and the reason for the continuance was plainly to consider the government's motion to disqualify defense counsel. In any event, the district court made that clear in its ruling on October 13, and nothing in the language of the statute precluded the trial judge from placing his reasons for a continuance on the record at a later date. See 18 U.S.C. 3161(h)(8). Moreover, the appellate courts have uniformly sanctioned that practice. See United States v. Elkins, 795 F.2d 919, 924 (11th Cir.), cert. denied, 479 U.S. 952 (1986); United States v. Crane, 776 F.2d 600, 606 (6th Cir. 1985); United States v. Bryant, 726 F.2d 510, 511 (9th Cir. 1984); United States v. Brooks, 697 F.2d 517, 522 (3d Cir. 1982), cert. denied, 460 U.S. 1073 (1983); United States v. Clifford, 664 F.2d 1090, 1095 (8th Cir. 1981); United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.), cert. denied, 449 U.S. 872 (1980).