No. 96-7430 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 RONALD E. MATHIS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CETIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General ELIZABETH D. COLLERY Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether a violation of the Speedy Trial Act occurred in this case. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7430 RONALD E. MATHIS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A2-A9) is reported at 96 F.3d 1577. JURISDICTION The judgment of the court of appeals was entered on October 10, 1996. The petition for a writ of certiorari was filed on January 7,1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Middle District of Florida, petitioner was convicted of racketeering conspiracy, in violation of 18 U.S.C. 1962 (d); ---------------------------------------- Page Break ---------------------------------------- 2 racketeering, in violation of 18 U.S.C. 1962(c) ; engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848(a); conspiracy to distribute cocaine base, in violation of 21 U.S.C. 846; possession of cocaine base with intent to distribute it, in violation of 21 U.S.C. 841(a) (1) ; and five counts of distribution of cocaine base, in violation of 21 U.S.C. 841(a) (l). He was sentenced to life imprisonment, to be followed by four years' supervised release. The court of appeals affirmed. Pet. App. A2- A9 . 1. The Speedy Trial Act provides that [i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. 18 U.S.C. 3161(c)(1). The Act also states, however, that certain "periods of delay shall be excluded * * * in computing the time within which the trial of any such offense must commence." 18 U.S.C. 3161(h). The Act identifies certain instances in which periods of delay are excluded as a matter of law. 18 U.S.C. 3161(h) (l)-(7). The Act further provides for the exclusion of [a]ny period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweighed the best interest of the public and the defendant in a speedy trial. 18 U.S.C. 3161(h) (8) (A). To grant an "ends-of-justice" exclusion, ---------------------------------------- Page Break ---------------------------------------- 3 the court must set forth in the record its reasons for finding that such an exclusion is warranted. Ibid. The factors to be considered in making that determination include, inter alia, whether the case is unusual or complex, and whether, absent a continuance, either side would have insufficient time to prepare for trial. See 18 U.S.C. 3161(h)(8) (B) (ii) and (iv). 2. From 1990 to 1991, petitioner headed an organization that sold crack cocaine in St. Petersburg, Florida. Petitioner's organization obtained the cocaine from several sources and resold it to customers for 10 or 20 per rock. The organization sold drugs 24 hours a day, and workers typically sold drugs in three eight-hour shifts. During one six-month period, the organization sold 300 to 600 packs of crack (each containing 50 rocks) per week. Gov't C.A. Br. 4-6; Presentence Report (PSR) 1-7. When workers ran low on drugs, petitioner transported packs of crack cocaine to them, or arranged for them to be resupplied by others. PSR 2. In March 1991, petitioner's brother robbed one of the organization's workers of drugs and money. The next day, petitioner gave two of his workers a gun and instructed them to kill his brother. Gov't C.A. Br. 5; PSR 4, 6. Petitioner also had workers burglarize the home of a person whom he suspected of calling the police. PSR 5. In July 1991, after police executed a search warrant at a house used by the organization, petitioner informed organization members that the house needed to be burned down. Organization members set fire to the house the following day. PSR 6. ---------------------------------------- Page Break ---------------------------------------- 4 3. On October 23, 1991, petitioner and several co-defendants were indicted. On November 25, 1991, petitioner moved to continue the trial. The district court granted that motion, continuing the trial to January 29, 1992. Gov't C.A. Br. 2, 21. On January 29, 1992, the district court held a status conference. At that conference, the government indicated that it was preparing a superseding indictment and was awaiting permission from the Department of Justice to seek the death penalty. Petitioner complained that he had not received promised discovery materials from the government. The district court told the government to provide the discovery materials by February 18, and to report back on the status of the superseding indictment. The court then discussed with counsel the amount of trial time that would be needed, and concluded that the trial would be rescheduled for January 1993, or earlier if possible. The court added that another status conference would be held in the "not-too-distant future." When petitioner objected to the continuance of the trial, the court stated that "the interest of justice under 3161 certainly does protect us." Pet, App. A5 (brackets omitted) . On March 24, 1992, petitioner moved to dismiss the indictment on Speedy Trial Act grounds. The government opposed the motion. On April 15, 1992, the grand jury returned a superseding indictment. On April 22, 1992, the government filed a notice of intent to seek the death penalty as to Count Four, which charged petitioner with an intentional killing while engaging in a continuing criminal enterprise. On January 28, 1994, the ---------------------------------------- Page Break ---------------------------------------- 5 government withdrew that notice. On February 1, 1994, the first day of trial, petitioner renewed his Speedy Trial Act motion and received permission to file supplemental authorities within 30 days. No supplemental authorities were ever filed, and the district court never ruled on the motion. Gov't C.A. Br. 2-4. 4. The court of appeals affirmed. Pet. App . A2 -A9. The court concluded that the Speedy Trial Act was not violated during the period from late November 1991, when petitioner's last co- defendant was arraigned, to March 24, 1992, the date that petitioner filed his speedy trial motion. Id. at A4-A7. The court determined that the speedy trial clock had begun to run either on November 22, 1991, or on November 27, 1991. Id. at A4 n.1. Because the trial had been continued at petitioner's request from November 25, 1991, to January 29, 1992, the court observed, that period was properly excluded from the 70 days allowed from indictment to trial under the Act. Id. at A4. The court then concluded that the further postponement granted on January 29, 1992, constituted a proper "ends of justice" continuance under 18 U.S.C. 3161(h) (8) (A). Pet. App. A5-A7. After reviewing the transcript of the January 29, 1992, conference, the court of appeals acknowledged that the district court had not "set[ ] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." Id. at A5 (quoting 18 U.S.C. 3161(h) (8) (A)). The court concluded, however, that the ---------------------------------------- Page Break ---------------------------------------- 6 district court's reasons were "evident from the record" because the transcript of the January 29 conference indicated that the court had taken into account the relevant factors. Pet. App. A5-A6. 1 The court of appeals also concluded that the district court had granted a continuance of "limited duration," which lasted until the superseding indictment was handed down on April 15, 1992. Pet. App. A6. The court rejected as "speculative" petitioner's claim that the government had acted in bad faith. Ibid. Finally, the court pointed out that, wholly apart from the January 29 continuance, a Speedy Trial Act violation was unlikely because pretrial motions and other requests from petitioner and his co- defendants were pending during the same period. Id. at A6-A7. ARGUMENT The court of appeals concluded that the district court had made sufficient findings at the January 29, 1992, status conference to support an "ends of justice" continuance. That holding was correct and does not conflict with any decision of this Court or of any other court of appeals. Even if there had been no "ends of justice" continuance, moreover, petitioner could not establish a violation of the Speedy Trial Act. Further review is not warranted. 1. The court of appeals determined that the speedy trial clock began to run in this case either on November 22, 1991, or on ___________________(footnotes) 1 Those factors included the complexity of the case (see 18 U.S.C. 3161(h) (8) (B) (ii)), and whether the failure to grant a continuance would deny either side counsel, or reasonable time necessary for effective preparation (see 18 U.S.C. 3161(h) (8) (B) (iv)). Pet. App. A5-A6. ---------------------------------------- Page Break ---------------------------------------- 7 November 27, 1991. Pet. App. A4 n.1. Petitioner's own request for a continuance stopped the Speedy Trial Act clock from November 25, 1991, until January 29, 1992. Id. at A4; see Pet. 4. Between January 29, 1992, and March 24, 1992, when petitioner filed his motion to dismiss, only 54 days elapsed. Even if the speedy trial clock is deemed to have begun running on November 22, 1991, the period of nonexcludable delay in this case could not have exceeded 57 days, whether or not an "ends of justice" continuance was granted on January 29, 1992. Since that period is less than the 70 days of pretrial delay permitted by the Act, no Speedy Trial Act violation could have occurred. The court of appeals' conclusion that a valid continuance was granted therefore unnecessary to the judgment below. 2 2. Moreover, as the court of appeals suggested (see Pet. App. (A6-A7), the period between January 29, 1992, and March 24, 1992, was also excludable due to various pretrial motions. Those included a co-defendant's motion to alter the conditions of his bond, which served to exclude all time between December 26, 1991, ___________________(footnotes) 2 Although the case did not come to trial until February 1, 1994, petitioner does not suggest that any additional time expired on the speedy trial clock after March 24, 1992. See Pet. App. A4 (stating that "there is no question of counting as delay any" periods of time subsequent to March 24, 1992). In fact, as the government explained in its court of appeals brief, only two additional days of includable time expired before trial. Gov't C.A. Br. 22-27. The remainder of the time was excludable for various reasons, including several "ends of justice" continuances requested by petitioner, delay resulting from petitioner's motion to suppress, and delay resulting from a motion to determine petitioner's competency. Gov't C.A. Br. 23-27. Thus , even if the entire period between arraignment and trial is considered, there was no possible violation of the Act. ---------------------------------------- Page Break ---------------------------------------- 8 and February 4, 1992; a co-defendant's motion to dismiss the indictment, which served to exclude all time between January 28, 1992, and November 24, 1992; a motion for grand jury transcripts, which served to exclude all time between February 12, 1992, and February 22, 1992; and a motion to withdraw by counsel for a co- defendant, which served to exclude all time between February 25, 1992, and April 1, 1992. Gov't C.A. Br. 21-22; ,see 18 U.S.C. 3161(h) (1) (F), 18 U.S.C. 3161(h) (1) (J) (rules governing delays due to pretrial motions). Those pending motions provide an additional reason why no Speedy Trial Act violation occurred during the period identified by petitioner. 3. In any event, the court of appeals was correct in treating the district court's January 29, 1992, order as a permissible "ends of justice" continuance. Petitioner contends (Pet. 7-8) that the district court failed to satisfy the statutory requirement that it set forth its reasons for concluding that the interests of justice served by such a continuance outweighed the best interests of the public and the defendant in a speedy trial. After carefully examining the transcript, however, the court of appeals concluded that the district court had satisfied that requirement because its reasons for granting a continuance were "evident from the record." Pet. App. A5. Contrary to petitioner's claim, that conclusion does not conflict with decisions from other circuits. In particular, the basis for a continuance was not "evident from the record" in any of the cases on which petitioner relies. Instead, continuance orders ---------------------------------------- Page Break ---------------------------------------- 9 were entered in those cases without any reference to the facts requiring delay. See United States v. Jordan, 915 F.2d 563, 566 (9th Cir. 1990); United States v. Blackwell, 12 F.3d 44, 46 (5th Cir. 1994). Indeed, when presented with facts similar to those here, other courts of appeals have held that a district court need not engage in an explicit balancing of interests if it is clear from the record that it considered the relevant factors and reached an appropriate decision. See, e.g, United States v. Spring, 80 F.3d 1450, 1456 (10th Cir.), cert. denied, 117 S. Ct. 385 (1996); United States v. Eakes, 783 F.2d 499, 503-504 (5th Cir.), cert. denied, 477 U.S. 906 (1986); United States v. Wiehoff, 748 F.2d 1158, 1159-1160 (7th Cir. 1984). Petitioner also contends (Pet. 6-8) that the district court impermissible granted an "indefinite" continuance. The court of appeals determined, however, that the district court intended a "continuance of limited duration, " which ended when the superseding indictment was returned on April 15, 1992. Pet. App. A6. The court of appeals also noted that the district court had scheduled the trial for January 1993, and had indicated that another status conference would be held in the "not too distant future" after the superseding indictment issued. Id. at A5. As a result, there is no conflict between the decision below and the Ninth Circuit's decisions in Jordan, 915 F.2d at 565-566, or United States v. Clymer, 25 F.3d 824, 828 (9th 1994). In Jordan, the Ninth Circuit stated that "[t]he Speedy Trial Act * * * requires that an `ends of justice' continuance be ---------------------------------------- Page Break ---------------------------------------- 10 specifically limited in time." 915 F.2d at 565. That statement was unnecessary to the court's disposition of the case, however. In reversing the defendant's conviction, the court focused primarily on the fact that a subsequent order, which the district court had apparently intended as an extension of an earlier ends- of-justice continuance, was invalid because there was no basis for determining whether the district court had considered the relevant statutory factors. See id. at 566. 3. Relying on Jordan, the court in Clymer reversed a conviction because the district court had declared the prosecution "complex" but had "never stated how much time would be excluded as a result of his finding, and * * * never explained when the case's complexity would terminate for Speedy Trial Act purposes." 25 F.3d at 828. Here, by contrast, the transcript of the January 29, 1992, status conference specifically identified the difficulties that warranted a continuance, including the imminence of a superseding indictment. ___________________(footnotes) 3 The First, Third, Fifth, and Tenth Circuits have all permitted open-ended continuances to serve the ends of justice as long as they are reasonable in length. See Spring, 80 F.3d at 1457-1458; United States v. Jones, 56 F.3d 581, 586 (5th Cir. 1995) ; United States v. Lattany, 982 F.2d 866, 868 (3d Cir. 1992), cert. denied, 510 U.S. 829 (1993); United States v. Rush 738 F.2d 497, 508 (1st Cir. 1984), cert. denied, 470 U.S. 1004 (1985) . Because only a continuance of limited duration was intended in this case, the question whether those cases conflict with the Ninth Circuit rule is not presented here. ---------------------------------------- Page Break ---------------------------------------- 11 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General ELIZABETH D. COLLERY Attorney APRIL 1997