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788 F.2d 1250 (7th Cir. 04/17/1986)
UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
No. 85-2120
April 17, 1986
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KENNETH L. THOMAS, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Northern District
of Illinois, Eastern Division. No. 84 CR 222--Thomas R. McMillen,
Judge.
Sahron E. Jones, AUSA (Anton Valukas-USA) 219 S. Dearborn Street,
Chicago, IL 60604, for Plaintiff.
Andrew B. Spiegel, 77 W. Washington Street, Chicago, IL 60604,
for Defendant.
Author: Easterbrook
Before CUDAHAY and EASTERBROOK, Circuit Judges, and FAIRCHILD,
Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
From 1966 through 1976 Kenneth L. Thomas filed tax returns. Then
he stopped, claiming that he had no tax liability. He filed a form
informing his employer that he had 23 withholding allowances, which
dramatically reduced the tax his employer withheld. He ceased filing
returns.
An indictment filed March 19, 1984, charged Thomas with wilfully
failing to file tax returns for the tax years 1979, 1980, and 1981,
in violation of 26 U.S.C. § 7203. A superseding indictment
filed October 1, 1984, retained these three charges and added four
more: failing to file tax returns for 1982 and 1983, and wilfully
filing false certificates asking his employer to cease all withholding
on the ground that he is "exempt" from taxation, in violation
of 26 U.S.C. § 7205. The 1983 return was due after the filing
of the first indictment. The trial began on January 15, 1985, and
the jury convicted Thomas on all counts. The district court sentenced
Thomas to a total of four years' imprisonment and fined him $22,000.
As the time sequence suggests, the principal problem is one of compliance
with the Speedy Trial Act, 18 U.S.C. § 3161 et seq. Before
considering this problem, we clear out the underbrush.
I
1. Thomas is a tax protester, and one of his arguments is that
he did not need to file tax returns because the sixteenth amendment
is not part of the constitution. If was not properly ratified, Thomas
insists, repeating the argument of W. Benson & M. Beckman, The
Law That Never Was (1985). Benson and Beckman review the documents
concerning the states' ratification of the sixteenth amendment and
conclude that only four states ratified the sixteenth amendment;
they insist that the official promulgation of that amendment by
Secretary of State Knox in 1913 is therefore void.
Benson and Beckman did not discover anything; they rediscovered
something that Secretary Knox considered in 1913. Thirty-eight states
ratified the sixteenth amendment, and thirty-seven sent formal instruments
of ratification to the Secretary of State. (Minnesota notified the
Secretary orally, and additional states ratified later; we consider
only those Secretary Knox considered.) Only four instruments repeat
the language of the sixteenth amendment exactly as Congress approved
it. The others contain errors of diction, capitalization, punctuation,
and spelling. The text Congress transmitted to the states was: "The
Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several
States, and without regard to any census or enumeration." Many
of the instruments neglected to capitalize "States," and
some capitalized other words instead. The instrument from Illinois
had "remuneration" in place of "enumeration";
the instrument from Missouri substituted "levy" for "lay";
the instrument from Washington had "income" not "incomes";
others made similar blunders.
Thomas insists that because the states did not approve exactly
the same test, the amendment did not go into effect. Secretary Knox
considered this argument. The Solicitor of the Department of State
drew up a list of the errors in the instruments and--taking into
account both the triviality of the deviations and the treatment
of earlier amendments that had experienced more substantial problems--advised
the Secretary that he was authorized to declare the amendment adopted.
The Secretary did so.
Although Thomas urges us to take the view of several state courts
that only agreement on the literal text may make a legal document
effective, the Supreme Court follows the "enrolled bill rule."
If a legislative document is authenticated in regular form by the
appropriate officials, the court treats that document as properly
adopted. Field v. Clark, 143 U.S. 649, 36 L. Ed. 294, 12 S. Ct.
495 (1892). The principle is equally applicable to constitutional
amendments. See Leser v. Garnett, 258 U.S. 130, 66 L. Ed. 505, 42
S. Ct. 217 (1922), which treats as conclusive the declaration of
the Secretary of State that the nineteenth amendment had been adopted.
In United States v. Foster, 789 F.2d. 457 (7th Cir. 1986), slip
op. 10-12 & n.6, we relied on Leser, as well as the inconsequential
nature of the objections in the face of the 73-year acceptance of
the effectiveness of the sixteenth amendment, to reject a claim
similar to Thomas's. See also Coleman v. Miller, 307 U.S. 433, 83
L. Ed. 1385, 59 S. Ct. 972 (1939) (questions about ratification
of amendments may be nonjusticiable). Secretary Knox declared that
enough states had ratified the sixteenth amendment. The Secretary's
decision is not transparently defective. We need not decide when,
if ever, such a decision may be reviewed in order to know that Secretary
Knox's decision is now beyond review.
2. Thomas testified before the grand jury that returned the superseding
indictment. He presented his explanations for not paying taxes,
including his belief that wages are not income and an assertion
that "all individual income tax revenues are gone before one
nickel is spend on the services which taxpayers expect from their
Government." In response to questions asked by the prosecutor,
Thomas conceded that he had received technical training paid for
by the Navy, payment funded by taxes. Thomas maintains that the
indictment should be dismissed because of these questions, which
he says are improper; because the prosecutor failed to present the
grand jury with exculpatory evidence (other than advised the grand
jurors that Thomas's legal theories are incorrect.
The short answer is that "[a]n indictment returned by a legally
constituted and unbiased grand jury, like an information drawn by
the prosecutor, if valid on its face, is enough to call for a trial
of the charge on the merits." Costello v. United States, 350
U.S. 359, 363, 100 L. Ed. 397, 76 S. Ct. 406 (1956) (footnote omitted).
See also United States v. Calandra, 414 U.S. 338, 344-45, 38 L.
Ed. 2d 561, 94 S. Ct. 613 (1974). A somewhat longer answer is that
even if the district court should have required the prosecutor before
trial to obtain a fresh indictment, there is no reason to restart
the process now that there has been a trial and conviction. The
grand jury is designed principally to prevent the prosecutor from
subjecting innocent people to the burden and trauma of trial. The
real "victims" of any abuse of the grand jury process
are a subset of those who are indicted and acquitted at trial. We
know now that Thomas was not tried unnecessarily. The Supreme Court
held in United States v. Mechanik, 475 U.S. 66, 106 S. Ct. 938,
89 L. Ed. 2d 50 (1986), that procedural errors before the grand
jury do not require the reversal of a conviction by the petit jury.
See also United States v. Burke, 781 F.2d 1234, 1245 (7th Cir. 1985);
United States v. Roth, 777 F.2d 1200, 1203-06 (7th Cir. 1985); United
States v. Murphy, 768 F.2d 1518, 1533-34 & n.2 (7th Cir. 1985),
cert. denied, 475 U.S. 1012, 89 L. Ed. 2d 304, 106 S. Ct. 1188,
54 U.S.L.W. 3562 (U.S. Feb. 24, 1986). The principle disposes of
Thomas's contention.
3. This assumes, however, that the petit jury properly convicted
Thomas, which he denies. He asserts that the evidence was insufficient.
Not so. Thomas filed returns for at least ten years, so he knew
of the tax laws. The IRS sent Thomas a letter in 1978 informing
him of the need to file (and the penalties for not filing). He was
a field engineer at IBM, obviously capable of understanding enough
to act wilfully. He failed to file a tax return for 1983, even though
this was due after the return of the first indictment. It is not
for want of information that Thomas did not file. A jury was entitled
to find his neglect wilful, as that term is used in tax law. United
States v. Pomponio, 429 U.S. 10, 50 L. Ed. 2d 12, 97 S. Ct. 22 (1976);
United States v. Copeland, 786 F.2d 768 (7th Cir. 1985). The false
certificates claiming exemption were filed knowingly; Thomas's evidentiary
position here is that because IBM (on the advice of the IRS) ignored
his certificates, he cannot be convicted. Section 7205 forbids the
filing of "false" forms, however, and reliance on the
forms is not an element of the offense. United States v. Lawson,
670 F.2d 923, 928 (10th Cir. 1982).
Thomas relies on United States v. Snider, 502 F.2d 645 (4th Cir.
1974), which reversed a conviction for filing a claim of three billion
exemptions. The employer in Snider was a Friends School; the taxpayer,
a Quaker, objected to the use of taxes for war; the claim of exemption,
transparently symbolic, was accompanied by Snider's explanation
that as an objector to war he would not pay tax voluntarily but
invited the government to levy on his bank account. Toleration of
this form of symbolic speech does not help Thomas, who did everything
within his power to deceive IBM and rid himself of tax.
4. The district court gave the following instructions on the meaning
of wilful conduct and the defense of good faith misunderstanding.
When the word "wilfully" is used in these instructions,
it means the voluntary and intentionally violation of a known legal
duty. The failure to act is wilfully done if done voluntarily, purposefully,
deliberately and intentionally, as distinguished from accidentally,
inadvertently or negligently.
The requirement that an offense be committed "wilfully"
is not met if a taxpayer in fact relied in good faith on a prior
decision of the United States Supreme Court which was known to him
and of [sic] his reliance was reasonable.
A good faith misunderstanding of the law based on reasonable grounds
may negate wilfulness. . . .
Defendant has testified as to his beliefs concerning the filing
of income tax returns and the filing of exempt Forms W-4. If you
find that these beliefs were the result of a good faith misunderstanding
of the law and that his good faith was reasonable and not the result
of negligence or inadvertent conduct of Mr. Thomas, then you must
find Mr. Thomas not guilty. . . .
Defendant has testified as to his beliefs concerning the filing
of income tax returns and the filing of exempt Forms W-4. If you
find that these beliefs were the result of a good faith misunderstanding
of the law and that his good faith was reasonable, then you must
find Mr. Thomas not guilty. Alternatively, if you find that his
conduct was negligent or inadvertent, then you must also find him
not guilty.
The last two instructions are two versions of an instruction proposed
by Thomas--the second one the accurate version, the first a misreading
that the court corrected by giving the second. Thomas says that
the correction was confusing, but we do not think so. The jury ended
up with the correct instruction.
His principal contention is that all of the wilfulness instructions
are flawed because they afford a defense of "good faith misunderstanding"
only to one whose belief is "reasonable." This objective
component was approved in United States v. Moore, 627 F.2d 830 (7th
Cir. 1980), cert. denied, 450 U.S. 916, 101 S. Ct. 1360, 67 L. Ed.
2d 342 (1981), which observed that a mistake-of-law defense should
be confined within exceptionally narrow bounds. Two other courts
have disagreed with Moore. United States v. Phillips, 775 F.2d 262,
264 (10th Cir. 1985); United States v. Aitken, 755 F.2d 188, 191-93
& n.2 (1st Cir. 1985).
Since Aitken disagreed with Moore, defendants have asked us to
abandon the standard of that case. We have twice declined to revisit
Moore when the defendant did not adequately press an objection in
the district court. United States v. Bressler, 772 F.2d 287, 290
(7th Cir. 1985); United States v. Witvoet, 767 F.2d 338, 339 (7th
Cir. 1985). See also United States v. Anton, 683 F.2d 1011, 1018
(7th Cir. 1982) (following Moore). We decline again today. The "reasonableness"
requirement appeared in the instruction that Thomas himself proposed.
And when the district court was discussing its own wilfulness instruction,
it asked: "Is that [the instruction] agreeable?", to which
Thomas's counsel replied "It is agreeable, your Honor."
After the jury retired to consider its verdict Thomas moved for
a mistrial, relying in part on an objection to the wilfulness instruction,
but this objection came too late under Fed. R. Crim. P. 30. Bressler
and Witvoet hold that, no matter the status of Moore, instructions
like the ones given here are not plain error.
II
The most difficult questions come from the time that lapsed between
the indictments and the trial. The superseding indictment, which
was filed on October 1, 1984, does not pose a serious problem. Thomas
appeared and pleaded to the four new charges in this indictment
on October 9, 1984; his trial began 97 days later, on January 15,
1985. The Speedy Trial Act allows 70 days from appearance within
which to get the trial underway, 18 U.S.C. § 3161(c)(1), less
any excludable time. At least 27 days between October 9 and January
15 were excludable for reasons discussed below, and so the trial
on the superseding indictment was timely.
Things are otherwise for the three charges contained in the original
indictment, filed March 19, 1984. Thomas appeared before a judicial
officer on March 26, 1984, and it took 295 days to bring these charges
to trial. The government contends that all but 19 were excludable.
Its position seems to be that everything necessary to prepare the
case for trial must product excludable time--that the 70 days refers
only to time when everyone was twiddling his thumbs. That is not
so. The statute requires the government to do all of the things
ordinarily necessary to get a case to trial within the 70 days;
only a few categories of time are excludable. Thomas, on the other
hand, contends that almost none of the time is excludable. The parties
having done little to narrow their dispute, we review the course
of events.
The time started on March 26, 1984. On April 9, 1984, the magistrate
set a briefing schedule for the filing of pretrial motions. This
brought into play the holding of United States v. Tibboel, 753 F.2d
608, 610 (7th Cir. 1985), that if a party requests an allocation
of time within which to prepare and file motions, the ensuing time
is excludable under 18 U.S.C. § 3161(h)(1). The time to prepare
motions is not covered by § 3161(h)(1)(F), which excludes "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". But the statute allows judges to exclude
extra time if necessary to accommodate complex or unusual motions.
18 U.S.C. § 3161(h)(8)(B)(ii). The legislative history of the
1979 amendments to the Speedy Trial Act demonstrates that §
3161(h)(8)(B)(ii) may be used to afford extra time for the preparation
of complex motions as well as for their disposition. See S. Rep.
No. 96-212, 96th Cong., 1st Sess. 34 (1979). Tibboel relied principally
on the fact that § 3161(h)(1) begins by reciting that excludable
time includes "but [is] not limited to" the periods expressly
provided; § 3161(h)(8)(B)(ii) fortifies the conclusion of Tibboel.
Thomas then asked for and got a series of extensions within which
to file his motions, and after the government answered Thomas got
a further extension to reply. All papers were on file by July 10,
1984, when a magistrate took the motions under advisement. This
started the period of exclusion provided by § 3161(h)(1)(J):
"delay attributable to any period, not to exceed thirty days,
during which any proceeding concerning the defendant is actually
under advisement by the court." We held in Tibboel and United
States v. Janik, 723 F.2d 537, 544 (7th Cir. 1983), that this exclusion--and
not the more elastic "prompt disposition" proviso of §
3161(h)(1)(F)--governs the period that may be excluded while a motion
is under advisement. This, too, is strongly supported by the legislative
history. See S. Rep. 96-212, supra, at 33-34; H.R. Rep. No. 96-390,
96th Cong., 1st Sess., 10-11 (1979).
The picture is complicated, however, by the fact that the statute
refers to the "proceeding", as if there were bound to
be only one, and "the court" as in institution rather
than to a particular judicial officer. Thomas filed two motions
to dismiss the indictment, three motions concerning discovery, and
a motion to suppress evidence, six separate documents in all, over
a period of weeks. The case then went to a magistrate and as we
relate below to the judge. Tibboel and United States v. Regilio,
669 F.2d 1169, 1172-73 (7th Cir. 1981), cert. denied, 457 U.S. 1133,
73 L. Ed. 2d 1349, 102 S. Ct. 2958 (1982), allow a court faced with
multiple motions to take more than 30 days, without granting a continuance
under § 3161(h)(8)(B)(ii), which was how Congress expected
the court to deal with complex matters. We recognized in Tibboel
that other courts have enforced the 30 day limit even when there
were multiple motions, but Tibboel and Regilio control here. Our
problem then is now much time beyond 30 days is excludable in a
case of this character.
The magistrate took the motions under advisement on July 10 and
on August 1 issued a 17-page report and a recommendation to deny
all six motions. The clock, stopped since April 9, commenced to
run. The motions were no longer under active consideration, not
unless the defendant objected to the recommendations, which under
the local rules he had ten days to do. These ten days are not automatically
excluded; under Tibboel only time expressly granted by the court
is excluded. Otherwise far too much time would be excluded, for
in a sense every day that passes after the indictment is spent "preparing"
things. The Speedy Trial Act sets 70 days as the limit on ordinary
preparation. So on August 1 the clock started, just as it would
have done if the judge rather than the magistrate had written the
opinion. The difference is that the magistrate's recommendation
was not final, which set the stage for a further exclusion if Thomas
objected. (It may also have required a continuance under §
3161(h)(8)(A) or (B)(ii) if the judge had overruled the magistrate
magistrate, for then the time spent preparing for trial on the assumption
that the magistrate's recommendations would be adopted might be
wasted. We need not consider this possibility further.)
The "if" came true on August 13, when Thomas filed objections.
The prosecutor did not ask for time to respond; indeed the prosecutor
did not respond. So as of August 13 the case was back under advisement,
and the time was again subject to exclusion under § 3161(h)(1)(J).
But for how long? The magistrate had taken 22 days. Did this leave
eight more for the judge, or did it start a new 30-day period (subject
to "reasonable" increase because Thomas filed six motions)?
The Eleventh Circuit--so far as we can tell, the only court that
has considered this question--has held that the district judge has
a full 30 days. United States v. Mastrangelo, 733 F.2d 793, 796
n.2 (11th Cir. 1984); United States v. Mers, 701 F.2d 1321, 1335-37
(11th Cir.), cert. denied, 464 U.S. 991, 78 L. Ed. 2d 678, 104 S.
Ct. 481 (1983). The court reasoned in Mers that the judge's 30 days
is supposed to begin only after all of the preparatory activity
(hearings and the like) has been completed and the time for that
purpose exhausted under § 3161(h)(1)(F). Mers treated the proceedings
before the magistrate as time necessary to get the motions in position
for consideration by the judge, and it therefore concluded that
the judge has thirty days of his own to act. If found support in
the Judicial Conference's Guidelines to the Administration of the
Speedy Trial Act of 1974 43 (1979), which state: "[W]hen a
pretrial matter is considered by both a magistrate and a judge .
. . the Committee believes that the [Speedy Trial Act] permits two
thirty day periods for consideration of the same matter."
The statute, however, refers to 30 days' advisement by "the
court" rather than by each judicial officer, and we hesitate
to read "not to exceed thirty days" in § 3161(h)(1)(J)
to permit an automatic exclusion of 60 days just because the judge
seeks the advice of a magistrate. Magistrates are supposed to accelerate
rather than retard the disposition of cases. The magistrate can
turn to the case more quickly than the judge, who (aided by the
magistrate's report) may concentrate on the remaining areas of dispute
between the parties. If both judge and magistrate have 30 days,
then in an ordinary case, with nothing more complex than a request
for discovery of Brady materials, 60 days of automatic exclusion
would be added to the 70 days provided by the Speedy Trial Act.
We doubt that Congress meant to afford an all-but-automatic doubling
of the statutory time. The Senate committee that recommended the
1979 amendments was worried that motions practice would subvert
the time limits of the Act, and it was adamant that "the Committee
does not intend to permit circumvention of the 30-days, 'under advisement'
provision contained in Subsection (h)(1)(J). Indeed, if motions
are so simple . . . that they do not require a hearing, necessary
advisement time should be considerably less than 30 days. Nor does
the Committee intend that additional time be made eligible for exclusion
by postponing the hearing date or other disposition of the motions
beyond what is reasonably necessary." S. Rep. No. 96-212, supra,
at 34. A judge with the report of a magistrate in hand does not
need much time to act; in the rare event that the judge needs extra
time, he may grant a continuance under § 3161(h)(8)(A) or (B)(ii).
The argument that the magistrate's efforts simply put the judge
in the position to decide could be made equally well of the time
consumed by the parties in preparing motions, or even of the time
consumed by the judge's law clerk in doing research. The Senate
committee expressly rejected a proposal to exclude all time consumed
in motions practice (id. at 33-34), and for the same reasons we
think--at least tentatively--that "the court", which includes
magistrates as well as judges, has only 30 days' excludable time
under § 3161(h)(1)(J).
We are tentative, however, for several reasons. First, the parties
have not briefed this question adequately, and we hesitate to act
without the advantage of more complete submissions. Second, even
if we allow the district judge 30 days from August 13 in which to
act, there are at least 70 non-excludable days elsewhere. Third,
the Speedy Trial Act should be interpreted to allow precise computations
of the remaining time, so that people may readily identify which
cases are furthest advanced and need priority handling. It is undesirable
for an appellate court to announce a surprise interpretation of
the Act. Our discussion here, then, is a warning signal rather than
a holding. Our initial encounter with the issue does not leave us
convinced by the holding of Mers, but it does not produce a firm
resolution the other way. There may be other arguments that have
not come to our attention, and we are open to them at the proper
time.
One thing is clear, however: A judge may not take advantage of
both a second 30-day period and out holding in Tibboel that multiple
motions may permit the exclusion of more than 30 days' time under
advisement. A judge who has received the report of a magistrate
is well on the way to decision. There is no need of a further enlargement
past 30 days for the judge just because the magistrate may have
wrestled with a complex set of motions. By the time the judge sees
things, the wild beast has been tamed; 30 days is more than enough.
(If for some exceptional reason 30 days will not do, the only appropriate
recourse is an extension under § 3161(h)(8)(A) or (B)(ii).)
So the exclusion provided by § 3161(h)(1)(J) expired no later
than September 12, 1984, when the 30 days were up. The clock was
running again.
The district judge adopted the magistrate's report in a four-page
opinion on September 20, 1984. The superseding indictment was filed
on October 1, and Thomas pleaded to the four new charges on October
9. The superseding indictment does not affect the running of the
time on the three charges that were in the original indictment as
well as the superseding indictment. 18 U.S.C. § 3161(h)(6);
United States v. Rush, 738 F.2d 497, 510-11 (1st Cir. 1984), cert.
denied, 470 U.S. 1003, 105 S. Ct. 1355, 84 L. Ed. 2d 377 (1985).
On October 24 Thomas filed a request for extra time to submit new
motions. The judge set a briefing schedule on October 29, so under
Tibboel a new period of exclusion started.
On October 29 the district judge also issued a minute order stating:
"Excludable delay due to filing of a superseding indictment
began Oct. 1, 1984 and ends Oct. 31, 1984." The judge did not
elaborate, but the parties assume that the judge meant to exclude
time under § 3161(h)(8)(A), which he may if "the ends
of justice served by taking such action outweigh the best interest
of the public and the defendant in a speedy trial." There are
two problems. First, § 3161(h)(8)(A) states that no period
may be excluded "unless the court sets forth . . . 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." The cryptic notation "due to the filing
of a superseding indictment" does not supply the necessary
finding; the judge did not point to anything unusual about the case.
Second, a court may not exclude time retroactively under §
3161(h)(8)(A). United States v. Janik, supra, 723 F.2d at 545. The
order of October 29 is therefore ineffectual. (We do not imply that
the filing of a superseding indictment is never an appropriate occasion
for exclusion of time under this section. If all parties would be
better served by trying all counts together, it may be. But the
district court did not give this reason, and at all events it acted
belatedly.)
The briefing schedule set on October 29 called for Thomas to file
his motions by November 2 and gave the prosecutor until November
9 to respond. Thomas did not comply with this schedule. Instead
he filed a series of motions, mostly duplicating motions filed before
but adding a motion based on misconduct before the grand jury. The
last was filed on November 13, 1984. All of the time from October
29 through November 13 was excludable under Tibboel. Now complications
set in. The prosecutor could not be expected to respond by November
9 to motions filed as late as November 13. The government could
have had an extension for the asking--most likely until November
20, a week after Thomas's last motion (November 9, the original
date, was a week after Thomas's date), longer if the government
had shown need. But the prosecutor did not seek an extension. The
prosecutor did nothing until January 4, 1985, when the government
filed a six-page response, some four pages of which were devoted
to Thomas's objections to the prosecutor's conduct before the grand
jury, the only new material in Thomas's motions. The response attached
the magistrate's recommendation of August 1 and the judge's decision
of September 20. On January 7, 1985, the judge summarily denied
Thomas's motions, and the trial began on January 15. When did the
period of exclusion stop?
The prosecutor insists that the time remained excludable until
January 7, when the judge denied the motion. As the prosecutor sees
things, the entire time was a reasonable period in which to decide
the motion. The judge did not see it this way; he acted with dispatch
once the prosecutor responded. If the entire period were excluded,
a prosecutor could obtain indefinite exclusions of time by the expedient
of not responding to frivolous motions. That would undercut the
structure of the Speedy Trial Act.
The correct answer, we conclude, is that the motion must be deemed
"under advisement" as soon as the prosecutor's response
was due, no matter when the prosecutor filed. Section 3161(h)(1)(F)
limits pre-advisement time to the date of the hearing or, if there
is no hearing, for a "prompt" time. It is not a "prompt"
disposition if the prosecutor takes more time than the briefing
schedule contemplates. The House report on the original Act states
that the advisement time now covered by § 3161(h)(1)(J) begins
"after all oral argument is heard and all briefs have been
submitted on the matter." H.R. Rep. No. 93-1508, 93d Cong.,
2d Sess. 33 (1974). The committee did not consider what would happen
if the government neglected to submit its brief. But the Judicial
Council of the Second Circuit addressed this question in a set of
guidelines w that were highly influential when the Act was amended
in 1979. These guidelines, which were reprinted in the hearings
and the subject of favorable reference in the committee reports,
state that the time excluded by § 3161(h)(1)(F) (the preadvisement
time) runs until "the date of oral argument (or the due date
of any post-argument submission), or, if there is to be no oral
argument, the due date of the reply papers." Judicial Council
Speedy Trial Act Coordinating Committee, Guidelines Under the Speedy
Trial Act (1979), reprinted in The Speedy Trial Act Amendment of
1979: Hearings on S. 961 and S. 1028 Before the Senate Comm. on
the Judiciary, 96th Cong., 1st Sess. 386, 398-99 (emphasis added).
The due date rule is consistent with the Act. It fixed an easily
ascertained time to shift the case to the "advisement"
exclusion of § 3161(h)(1)(J), yet it preserves flexibility
of the parties to seek additional time (to extend the due date)
if more is necessary.
Yet what was the prosecutor's due date? We have explained why the
actual due date of November 9 cannot be right; Thomas was not done
filing motions until November 13. It is therefore appropriate to
treat the prosecutor's due date as November 20, one week afterward,
the same seven days the prosecutor had in the original schedule.
On November 20 the 30 days provided by § 3161(h)(1)(J) began
to run; this exclusion ended on December 20. Because Thomas made
only one new motion, the 30 days is an outer limit. See Janik, supra.
Maybe only three days, the amount the judge actually took, should
be excluded. There is no reason to extend the time on account of
any difficulty. The bulk of the motions had been made and rejected
before, and the judge ultimately rejected all out of hand. Nothing
else happened until the trial began, so the period between December
20 and January 15 is not excludable.
To add up the time that counts: March 26 to April 9 is 15 days;
August 1 to August 13 is 12 days; September 12 to October 29 is
47 days; December 20 to January 15 is 26 days. That is a total of
100 days. The Act allows only 70. The convictions on counts 1 to
3 must be reversed under 18 U.S.C. § 3162(a)(2). As in earlier
cases, we leave to the district court the initial decision whether
the counts should be dismissed with or without prejudice.
Unfortunately, the reversal of these counts disrupts the district
judge's sentencing scheme. Thomas was convicted on seven counts,
five with a maximum of one year's imprisonment and two with a maximum
of three years' imprisonment. The district court gave Thomas one
year on each count but made counts 1 and 2, 4 and 5, and 6 and 7
concurrent, each pair of sentences to run consecutively with the
other pairs. The addition of count 3 as another consecutive sentence
produced a total of four years' imprisonment. The reversal of counts
1 to 3 would reduce the sentence from four years to two, and it
would reduce the fine from $22,000 to $12,000. The maximum sentence
on the four counts we have affirmed is eight years' imprisonment
and a fine of $30,000. We therefore vacate the sentences on counts
3 to 7 and remand for resentencing. See Pennsylvania v. Goldhammer,
474 U.S. 28, 106 S. Ct. 353, 88 L. Ed. 2d 183 (1985); United States
v. Jefferson, 760 F.2d 821 (7th Cir.), vacated, 474 U.S. 806, 106
S. Ct. 41, 88 L. Ed. 2d 34 (1985), on remand, 782 F.2d 697 (7th
Cir. 1986).
The judgments on counts 1 to 3 are reversed and the case is remanded
with instructions to dismiss the indictment on these counts. The
judgments on counts 4 to 7 are vacated and the case is remanded
for resentencing on these counts.