FRANK J. CIANCIOLA, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7294

   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 Sixth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A) is reported at
920 F.2d 1295.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 13,
1990.  A petition for rehearing was denied on January 31, 1991.  The
petition for a writ of certiorari was filed on March 5, 1991.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the period of a continuance, granted on petitioner's
motion, 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
Western District of Tennessee, petitioner was convicted of
distributing cocaine (Counts 1, 2, and 3), in violation of 21 U.S.C.
841(a)(1);  and possessing a firearm having previously been convicted
of a felony (Count 5), in violation of 18 U.S.C. 922(g).  He was
sentenced to concurrent terms of 12 years' imprisonment on the cocaine
counts and 10 years' imprisonment on the firearm count, to be followed
by three years' supervised release.  The court of appeals affirmed.

   1. Petitioner was indicted on July 25, 1989.  On August 3, 1989, he
filed a request for discovery.  Local rules required a response to the
discovery request within 10 days.  The prosecutor prepared a written
response, but forgot to mail it.  Petitioner did not seek a court
order requring compliance with his discovery request.  Before a status
conference on September 14, 1989, the government offered to give
petitioner all discovery materials, including several tapes of
recorded conversations.  Petitioner refused to accept them, instead
advising the district court that the government had not complied with
his August 3 discovery request.  The district court ordered the
government to comply within 24 hours, which it did.  Trial was
scheduled to begin on September 25, 1989.  C.A. App. 2-4, 42-44.

   Four days before the scheduled trial date, petitioner filed a
motion for a continuance, asserting that some of the tapes were
unintelligible and that his expert needed additional time to enhance
the tapes.  The district court granted the continuance, and excluded
"(t)he period from September 21, 1989, to the new trial setting * * *
under 18 U.S.C. Section 3161(h)(8)(B) because the interests of justice
in allowing (petitioner) more time to prepare for trial outweigh the
need for a speedy trial." The court then rescheduled trial for
November 13, 1989.  Pet. App. A 1297.

   On November 3, 1989, petitioner moved to dismiss the indictment
claiming a violation of the Speedy Trial Act, 18 U.S.C. 3161 et seq.
Petitioner asserted that the period of his continuance (September 21
to November 13) should not be excluded from the speedy trial
calculations because his motion for a continuance had resulted from
the government's tardy compliance with his discovery request.  The
district court disagreed.  It found that the prosecutor's failure to
mail his discovery response was inadvertent, C.A. App. 42, and that
petitioner "chose intentionally not to seek the court's aid on the
delayed discovery until some eleven days before this case was
initially set for trial." C.A. App. 51.  The court noted that Fed. R.
Crim. P. 16(c)(2) provides that a defendant may seek the court's
assistance in obtaining compliance with a discovery request, but that
petitioner did not use that procedure here.  C.A. App. 50-51.  The
court concluded that petitioner's refusal to avail himself of the rule
was a tactical decision to allow time to pass under the Speedy Trial
Act.  Id. at 52.  In these circumstances, the court held that the
continuance was justified and the period of the continuance was
properly excluded under 18 U.S.C. 3161(h)(8)(B).  C.A. App. 52.

   2. The court of appeals affirmed.  The court rejected petitioner's
suggestion that the government's failure to respond to his discovery
request within the 10-day period provided by the local rule was the
"sole cause" of the continuance granted on September 21, 1989.  To the
contrary, the court stated that petitioner was to blame for the last
minute continuance by failing to "petition() the court pursuant to
Federal Rule of Criminal Procedure 16(d)(2) to secure the government's
compliance with his discovery request." Pet. App. A 1298.  The court
of appeals upheld the district court's finding that petitioner had
made a tactical decision hoping to "sandbag()" the government by
provoking a speedy trial violation.  Ibid.  The Speedy Trial Act, the
court remarked, "was not intended 'to provide defendants with tactics
for ensnaring the courts into situations where charges will have to be
dismissed on technicalities.'" Ibid., quoting United States v.
Bufalino, 683 F.2d 639, 646 (2d Cir. 1982), cert. denied, 459 U.S.
1104 (1983).  Moreover, the court explained that the government's
inadvertent noncompliance with a local discovery rule is not a proper
basis for refusing to exclude delay from speedy trial computations.
Pet. App. A 1299-1300.

   The court of appeals also held that the district court adequately
set forth its reasons for excluding delay attributable to the
continuance.  In the order granting the continuance, the district
court explained that "the interests of justice in allowing defense
counsel more time to prepare outweighed the need for a speedy trial."
Pet. App. A 1300.

                               ARGUMENT

   The Speedy Trial Act generally requires that trial commence within
70 days of indictment.  18 U.S.C. 3161(c)(1).  That 70-day period,
however, is subject to expansion by periods of excludable delay.  See
Henderson v. United States, 476 U.S. 321, 326 (1986).  In this case,
the district court excluded delay attributable to petitioner's motion
for a continuance under 18 U.S.C. 3161(h)(8)(B)(iv).  Petitioner
contends that this was error for two reasons.  First, he claims, the
district court did not state its reasons for granting the continuance
at the outset.  Second, he contends, the continuance was precipitated
by the government's failure to comply promptly with his discovery
request.  The court of appeals properly rejected both arguments, and
its ruling is consistent with the decisions of other courts of
appeals.

   Section 3161(h)(8)(A) excludes "(a)ny period of delay resulting
from a continuance granted by any judge * * * at the request of the
defendant * * * if the judge granted such continuance on the basis of
his findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a speedy
trial." The period of the continuance will not be excluded unless "the
court sets forth, in the record of the case, either orally or in
writing, its reasons * * *." Ibid.  In this case, the district court
plainly satisfied this record-keeping requirement.  Petitioner moved
for a continuance so that his expert could examine tapes of
conversations recorded during the investigation.  In granting
petitioner's motion, the district court explained in writing that "the
interests of justice in allowing (petitioner) more time to prepare for
trial outweigh the need for a speedy trial." This stated reason was
sufficient to invoke the Section 3161(h)(8)(A) exclusion.

   United States v. Doran, 882 F.2d 1511, 1516-1517 (10th Cir. 1989),
is not to the contrary, as petitioner suggests (Pet. 8).  Doran holds
that a district court must perform the ends-of-justice balancing
required by Section 3161(h)(8)(A) "contemporaneously with the granting
of the continuance" in order for the exclusion to apply, although it
may record its reasons later.  882 F.2d at 1516.  In this case, the
district court fulfilled both the balancing requirement and the
record-keeping requirement at the outset.  In the order granting the
continuance, the court stated that petitioner's need for additional
preparation time outweighed his need for a speedy trial.  No appellate
decision construes the statute to require more.  See, e.g., United
States v. Bruckman, 874 F.2d 57, 61-62 (1st Cir. 1989) (recitation of
reasons by the district court was unnecessary where they were stated
in motion for continuance).  Nor was the exclusion in this case
invalid because the district court amplified its reasons in denying
petitioner's motion to dismiss under the Speedy Trial Act.  Providing
the district judge considers the applicable factors when granting the
continuance, and does not grant an "ends of justice" continuance nunc
pro tunc, it is permissible for the judge to "detail his reasons for
granting an ends of justice continuance some time after he enters the
order granting such continuance." United States v. Brenna, 878 F.2d
117, 122 (3d Cir. 1989) (per curiam).

   Nor does petitioner fare better in arguing (Pet. 9-14) that the
government is accountable for his motion for a continuance because of
the delay in its compliance with his discovery request.  Petitioner
does not dispute that an ends-of-justice continuance may be granted to
give defense counsel "reasonable time necessary for effective
preparation." 18 U.S.C. 3161(h)(8)(B)(iv);  United States v.
Rojas-Contreras, 474 U.S. 231, 240 (1985) (Blackmun, J., concurring).
Likewise, he acknowledges that he requested a continuance on precisely
that ground.  Petitioner nevertheless argues that although the
continuance was granted for the permissible reason of affording him
additional time for his expert to examine the tapes, the exclusion
should be disallowed because his need for the continuance was prompted
by the government's failure to turn over the tapes within the 10-day
period established by the local rules.

   An isolated failure by the government to comply with a local rule
or discovery order is not a permissible basis for disallowing an
exclusion specifically provided for in the Speedy Trial Act.  See,
e.g., United States v. Anderson, 902 F.2d 1105, 1109 (2d Cir.) (motion
filed by defendant created excludable delay even though triggered by
the government's failure to comply with a discovery order), cert.
denied, 111 S. Ct. 182 (1990);  United States v. Henry, 698 F.2d 1172,
1173-1174 (11th Cir. 1983) (same).  See also United States v.
Robertson, 810 F.2d 254, 260 (D.C. Cir. 1987) (government's failure to
comply with local rule establishing time limit for answering pretrial
motion did not nullify Speedy Trial Act exclusion).  Petitioner can
point to nothing more in this case.

   It is true that "lack of diligent preparation" by the government is
not a permissible basis for granting an ends-of-justice continuance.
18 U.S.C. 3161(h)(8)(C).  But the continuance in this case was not
granted to give the government additional time to prepare, and the
government's error in not mailing its discovery response promptly was
mere inadvertence.  Moreover, both courts below found that petitioner
chose not to seek court assistance in obtaining discovery because he
hoped to ensnare the government into a speedy trial violation.
Consequently, petitioner's footdragging actually precipitated the
continuance, and in these circumstances, he cannot challenge its
excludability.  Although petitioner has no duty to bring himself to
trial, he cannot engage in whipsaw tactics by first refusing to take
reasonable steps to perfect his right to discovery, then claiming that
it was the government's delay that caused his need for a continuance.

                              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

   MAY 1991