THOMAS J. HENDERSON, ET AL., PETITIONERS V. UNITED STATES OF
   AMERICA

   No. 84-1744

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Question presented
   Statement
   Summary of argument
   Argument:
      I. The pretrial motion exclusion runs from the filing
          of a pretrial motion until that motion is
          taken under advisement
          A. The language of 18 U.S.C.
              3161(h)(1)(F) excludes the entire period
              between the filing of a motion and the date
              on which the motion is taken under advisement
          B. The legislative history of Section
              3161(h)(1)(F) demonstrates that Congress
              did not intend to impose a "reasonable
              necessity" limitation on the pretrial
              motion exclusion
          C. The creation of a "reasonable necessity"
              limitation to the pretrial motion exclusion
              would make effective application of the
              Act impossible
      II. The delay in this case was reasonably
          necessary to resolve petitioners' motions
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A34) is reported
at 746 F.2d 619.  The order of the district court denying petitioners'
Speedy Trial Act motion (J.A. 22-34) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 5,
1984.  A petition for rehearing was denied on March 7, 1985.  The
petition for a writ of certiorari was filed on May 6, 1985 and granted
on October 15, 1985.  The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

                           STATUTE INVOLVED

   The Speedy Trial Act of 1974 provides in pertinent part (18 U.S.C.
3161(h)):

         The following periods of delay shall be excluded in computing
      the time within which an information or an indictment must be
      filed, or in computing the time within which the trial of any
      such offense must commence;

         (1) Any period of delay resulting from other proceedings
      concerning the defendant, including but not limited to --

                      * * * * *

         (F) 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;

                      * * * * *

         (J) delay reasonably attributable to any period, not to
      exceed thirty days, during which any proceeding concerning the
      defendant is actually under advisement by the court.

Additional provisions of the Act that are cited in the text are
reproduced in the appendix to this brief.

                          QUESTION PRESENTED

   Whether the courts below properly excluded delay attributable to
petitioners' pretrial motions in calculating time limits under the
Speedy Trial Act.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Northern District of California, petitioners were convicted of
conspiracy to manufacture and possess with intent to distribute
methamphetamine and phenyl-2-propanone, in violation of 21 U.S.C. 846.
 Petitioners Thornton and Freedman also were convicted on one count
charging the manufacture and possession with intent to distribute of
methamphetamine, in violation of 21 U.S.C. 841(a)(1);  petitioner
Henderson also was convicted of traveling in interstate commerce with
intent to promote the manufacture and possession of methamphetamine,
in violation of 18 U.S.C. 1952(a)(3).  Henderson was sentenced to
concurrent terms of four years' imprisonment on each count and fined
$2,000 on the conspiracy count.  Freedman was sentenced to concurrent
terms of three years' imprisonment on each count, to be followed by a
special parole term of two years on the substantive count.  Thornton
was sentenced to consecutive terms of 10 years' imprisonment on the
conspiracy count and five years imprisonment on the substantive count,
to be followed by a 20-year special parole term.  He also was fined
$30,000 on each count.  The court of appeals affirmed (Pet. App.
A1-A34).

   1. The evidence at trial showed that petitioners Thornton and
Freedman operated a laboratory for the manufacture of methamphetamine
and phenyl-2-propanone at their home in Watsonville, California.  On
several occasions, petitioner Henderson purchased chemicals for the
laboratory in Ohio.  Prior to one such purchase federal agents placed
an electronic beeper in the container of chemicals;  the agents
ultimately traced the beeper to the Watsonville home.  The following
day the agents searched the home pursuant to a warrant and discovered
the laboratory.  Thornton and Freedman were arrested at the time of
the search;  Henderson was arrested elsewhere and his van seized.
Pet. App. A2-A3;  Tr. 103-107, 116, 296-300, 325-337, 437-486, 589,
631-634, 667-677, 708, 749, 774-793, 801-836, 906, 1039-1040,
1152-1162, 1201-1207, 1218-1234, 1251-1262, 1382, 1411-1418,
1444-1468, 1590, 1703-1705, 1757-1766, 1790.

   2.a. A superseding indictment against petitioners and co-defendant
Peter Bell was returned on September 3, 1980.  /1/ On November 3,
1980, petitioners filed two pretrial motions (one joint motion and one
on behalf of Henderson) seeking suppression both of evidence seized
from the Watsonville laboratory and of other evidence (J.A. 1, 27).
/2/ A hearing on these motions was scheduled for November 26, 1980.
On November 24, 1980, however, petitioners filed a supplemental
memorandum advancing additional factual grounds -- in particular,
challenging representations made in the warrant affidavit about
telephone toll records -- in support of their suppression motions.
J.A. 5-7, 27.  /3/ The court accordingly twice rescheduled the hearing
on the suppression request, first to January 14 and then to January
28, 1981 (J.A. 1-2, 27).

   Twenty days before the scheduled hearing, on January 8, 1981,
Freedman's attorney informed the court that he would be unavailable on
the hearing date and requested a continuance to February 18, 1981.
Shortly afterwards, on January 13, 1981, petitioners filed a motion to
reveal the identity of confidential informants and related information
(J.A. 2, 27-28).  The court responded to these developments by
rescheduling the hearing on the outstanding motions to February 18,
1981 (J.A. 2, 27).  Prior to that date -- on February 9, 1981 -- the
government filed its responses to the joint suppression motion and to
the motion to reveal the informant identities (J.A. 2, 28).
Meanwhile, on February 13, 1981, petitioners' co-defendant Bell sought
to join in their suppression claims (J.A. 28).

   The parties appeared in court as scheduled on February 18, 1981.
Petitioners, however, sought a further postponement, suggesting that
"in the interest of the efficient operation of the calendar" another
hearing date should be set (J.A. 36).  The district court granted
petitioners' request to be provided with additional time to reply to
the government's responses, and the case was continued to March 2,
1981 (J.A. 2, 28).  On that date petitioners filed their reply.  Two
days later the government filed a supplemental response, contesting
the standing of Bell and Henderson to challenge the search of the
Watsonville laboratory (ibid.).  Upon receipt of all the pleadings the
court scheduled a hearing for March 25, 1981, and the motions were
argued on that date (J.A. 2, 28, 39-55).  /4/

   b. At the hearing on March 25, 1981, the district court was
presented with nine discrete constitutional and evidentiary issues
that had been addressed in the pleadings.  /5/ In addition,
petitioners suggested at the hearing that the case should be dismissed
because of what they alleged to be outrageous government conduct (J.A.
39-43).  Petitioners did not present any evidence in support of these
claims at the hearing, however, agreeing instead that further
investigation would have to be undertaken (J.A. 39-55).  And
petitioners, after advising the court that Thornton's attorney was
about to begin a three-month trial, requested that further proceedings
in this case be postponed pending completion of that trial (J.A.
51-52).

   In light of these developments, it was "apparent" to the district
court that "before a final decision on the suppression motion could be
made, additional information about telephone calls which were part of
the basis of the search warrant aff(i)davit had to be obtained" (J.A.
28-29).  The court accordingly directed the government to provide
information relating to the telephone records to petitioners and to
the district judge (J.A. 50, 53, 54-55).  Similarly, the court
deferred consideration both of petitioners' motion for disclosure of
informant identities and their related contentions relating to
government misconduct, pending the submission of additional
information by the government (J.A. 43;  see J.A. 29).  And the court
indicated that it would review the materials already submitted before
seeking further briefing from the defendants on the standing of
Henderson and Bell to contest the Watsonville search (J.A. 54).  /6/

   c. Approximately one month after completion of the hearing, on
April 29, 1981, the prosecutor provided the court and defense counsel
with information about the government's informant (J.A. 2, 14-17).
Some two months later, on June 25, 1981, the prosecutor provided the
parties with the telephone toll records that defense counsel had
requested at the March hearing (J.A. 2, 18-19).  The prosecutor noted
in her letter to defense counsel that the delay in providing the
records was caused by "numerous unsuccessful efforts to obtain copies"
of the telephone toll records from the Ohio motel at which Henderson
had stayed when he purchased the precursor chemicals (J.A. 18).
Defense counsel responded the following month, on July 6, 1981, by
challenging the data supplied by the government and advancing
additional claims of misrepresentation in the search warrant affidavit
(J.A. 20-21, 29-30).  Additional material regarding the toll records,
including several legal memoranda and affidavits, were filed by both
sides in August, September and November 1981 (J.A. 18-19).  /7/

   Meanwhile, on October 23, 1981, petitioners filed another
memorandum in support of their suppression motions, raising a new
claim:  that the asserted destruction of the barrel of chemicals in
which the beeper had been hidden denied them due process (J.A. 3, 30).
 The government responded to this motion on November 25, 1981,
explaining that the barrel had not in fact been destroyed (J.A. 3,
31).  Petitioners filed a final memorandum of law on December 12,
1981, taking issue with the government's representations about the
barrel (ibid.);  the government filed its response three days later
(ibid.).  On that date -- December 15, 1981 -- the district court took
the motions under advisement (J.A. 31).  It denied the suppression
motion 34 days later, on January 19, 1982.  /8/ See J.A. 34 n.1.

   3. On July 23, 1982, petitioners moved to dismiss the indictment on
speedy trial grounds, challenging the excludability of the period
after the filing of their first suppression motion on November 3,
1980.  The district court denied the speedy trial motion, explaining
that "the bulk of the continuances granted * * * were due to (1) the
complexity of the issues presented in the case and difficulties in
securing and assimilating crucial evidence;  (2) resolution of
numerous pretrial motions;  and (3) numerous scheduling conflicts
among the various counsel involved." J.A. 24-25.

   The court explained that the "speedy trial clock" began running on
September 3, 1980, when the superseding indictment was returned (J.A.
25).  /9/ But the court found that the period from November 3, 1980,
when petitioners filed the first of their suppression motions, through
March 25, 1981, when a hearing on the motions was held, "is
automatically excludable under (18 U.S.C.) Section 3161(h)((1))(F)"
(J.A. 28), which provides that a court "shall" exclude for speedy
trial purposes "(a)ny 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." /10/
The court added that "March 25 cannot be considered the point at which
these matters were finally placed before the court for decision,"
given "the court's anticipation of the filing of additional materials"
(J.A. 29);  instead, "(i)n light of the fact that the last relevant
filing was not received until December 15, 1981," the court found that
"the motions were not submitted" until that date (J.A. 31).  Citing 18
U.S.C. 3161(h)(1)(J), the court excluded the next 30 days, through
January 15, 1982, as a period during which the motions were "under
advisement" (J.A. 31).  While the clock then began running again, the
court reasoned that it stopped on January 25, 1982, when the
government filed a motion for a trial date, and the court found that
the time from that day through the commencement of trial also was
excludable.  /11/

   In all, the court found that no more than 66 days of nonexcludable
time had elapsed (J.A. 34).  /12/ Because the Act requires dismissal
only if more than 70 nonexcludable days have passed between
arraignment or indictment and trial, the district court denied
petitioners' motion.

   4. The court of appeals rejected petitioners' challenge to the
district court's speedy trial ruling, relying in relevant part on the
pretrial motion exclusion of 18 U.S.C. 3161(h)(1)(F).  In particular,
the court of appeals declined petitioners' invitation (see Pet. App.
A7) to read a "reasonable necessity" limitation into Section
3161(h)(1)(F).

   The court explained that the statute in terms "excludes delays
resulting from pretrial motions without qualification" (Pet. App. A9).
 Indeed, the court noted that Congress expressly made the
excludability of other delays turn on reasonableness (id. at A9-A10),
while indicating that abuse of the pretrial motion exclusion should be
curbed through local guidelines (id. at A10-A11).  The court also
found that a "reasonable necessity" limitation would lack the
precision that is needed for the Act to function:  "It is important
that the court and the parties know when the clock stops running under
the Act," and "(i)tis even more important that they know when it
starts again" (id. at A12).  The court of appeals accordingly refused
to "write conditions into the provision that would pressure trial
courts to give short shrift to pretrial litigation, under the threat
of dismissal of criminal indictments" (id. at A13).  /13/

                          SUMMARY OF ARGUMENT

   A. Under the Speedy Trial Act of 1974, a criminal trial must
commence within 70 days of the defendant's indictment or first
appearance with counsel, whichever last occurs.  That 70-day period is
tolled, however, by the filing of a pretrial motion.  18 U.S.C.
3161(h)(1)(F).  The question here is when the exclusion triggered by
petitioners' pretrial motions ended, thus permitting their 70-day
speedy trial clock to again begin ticking.  In our view, the answer to
that question is clearly provided by the Act:  the exclusion remained
in effect until the court received everything that it expected to
obtain from the parties before issuing a ruling.

   1. As the court below recognized, Section 3161(h)(1)(F) in terms
excludes "(a)ny 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." At least
where a hearing is held on a motion, the statute could not speak more
clearly:  it excludes without qualification the entire period between
the filing of the motion and the conclusion of the hearing.  And an
examination of the other provisions of the Act confirms that Congress
meant what it said in Section 3161(h)(1)(F).

   Like the pretrial motion exclusion, most of the excludable periods
enumerated in Section 3161(h) encompass "(a)ny period of delay"
resulting from a given event.  See 18 U.S.C. 3161(h)(1)(A)-(E), (G)
and (I);  18 U.S.C. 3161(h)(2), (4), (5) and (8).  In contrast,
Congress placed absolute limits on the length of several other speedy
trial exclusions (see 18 U.S.C. 3161(h)(1)(J) and Pub. L. No. 98-473,
Section 1219, 98 Stat. 2167 to be codified at 18 U.S.C. 3161(h)(9)),
and in Section 3161(h)(7) it made use of the very reasonableness
limitation contended for by petitioners here.  Against this
background, "(i)t is clear that Congress knew how to provide for"
limited exclusions when it wanted to do so (United States v.
Rojas-Contreras, No. 84-1023 (Dec. 16, 1985), slip op. 4);  its
failure to place such a limitation in Section 3161(h)(1)(F) should be
dispositive.

   2. Against this background, petitioners make only one attempt to
find ambiguity in the language of Section 3161(h)(1)(F).  Noting that
the Act excludes the period prior to a hearing on "or other prompt
disposition of" a pretrial motion, they contend that Section
3161(h)(1)(F) imposes a promptness requirement on the timing of
pretrial hearings.  But this reading is flawed on its face.  Section
3161(h)(1)(F) is written in the disjunctive;  the term "prompt"
applies only to motions that terminate in "other * * *
disposition(s)," rather than in hearings.

   In any event, even for motions decided on the papers, Section
3161(h)(1)(F)'s reference to promptness does not place an undefined
reasonableness cap on the length of the pretrial motion exclusion.
Instead, that reference was designed to work in conjunction with
Section 3161(h)(1)(J) -- which excludes a maximum of 30 days after a
court takes a motion "under advisement" -- to prevent courts from
indefinitely postponing the resolution of pretrial motions by
declining to rule on them.  As Congress explained, the under
advisement exclusion (and its concomitant 30-day cap) goes into effect
when the court receives all of the papers and evidentiary materials
necessary for its ruling.  H.R. Rep. 93-1508, 93d Cong., 2d Sess. 33
(1974).  By insisting on a "prompt disposition" of pretrial motions,
Congress intended to provide that the Section 3161(h)(1)(F) exclusion
would run only until the motion is taken under advisement;  at that
point, the court would have 30 excludable days in which to issue a
ruling.  S. Rep. 96-212, 96th Cong., 1st Sess. 34 (1979).

   3. Petitioners also suggest that a literal reading of Section
3161(h)(1)(J) should terminate the pretrial motion exclusion at the
moment that the hearing ends.  But it hardly would have been sensible
for Congress to have excluded automatically all time prior to the
hearing on a motion -- as well as the first 30 days after the motion
is taken under advisement with the filing of the final post-hearing
papers -- while permitting the speedy trial clock to run down during
the intervening period, during which the court remains unable to rule
because awaiting the submission of additional materials.  Recognizing
this, the Judicial Conference and the courts of appeals have concluded
that the pretrial motion exclusion must continue in effect until a
motion is taken under advisement.  And this conclusion is supported by
the general language of Section 3161(h)(1), which excludes (emphasis
added) "(a)ny period of delay resulting from other proceedings
concerning the defendant, including but not limited to" the particular
exclusions enumerated in Section 3161(h)(1)(A)-(J).  To the extent
that post-hearing delay prior to the point at which the motion is
taken under advisement does not fall squarely within the language of
Section 3161(h)(1)(F), it thus is automatically excludable under the
broad language of Section 3161(h)(1).

   B. The legislative history of the Act supports the conclusion that
Congress meant precisely what it said in Section 3161(h)(1)(F):  the
pretrial motion exclusion was not intended to have a "reasonable
necessity" cap.  The current version of the pretrial motion exclusion
was inspired by speedy trial guidelines issued by the Second Circuit
Judicial Council early in 1979, which flatly excluded all
motion-related pretrial delay through the date of any post-argument
submission.  In contrast, Congress rejected a proposal by the Judicial
Conference that would have permitted the exclusion only of delays that
were "reasonably necessitated" by certain events.

   Indeed, Congress was aware of the breadth of the exclusion created
by Section 3161(h)(1)(F).  It acknowledged that the exclusion could be
abused and could, in fact, "undermine the whole Act." S. Rep. 96-212,
supra, at 34.  But Congress did not respond to this danger by adding a
"reasonable necessity" limitation to the statute.  Instead, it
indicated that abuse of the exclusion was to be curbed by circuit and
district court guidelines relating to motions practice.  Ibid.; H.R.
Rep. 96-390, 96th Cong., 1st Sess. 10 (1979).  Congress thus intended
Section 3161(h)(1)(F) to establish rigid starting and ending points
for the running of the pretrial motion exclusion;  it was left to the
courts to ensure that the period between the two is not excessive.

   C. This use of rigid starting and stopping points for the speedy
trial clock is compelled by the policy of the Act.  Unless those
points are precise and easily discernible, the parties and the court
will be unable to know as each day passes whether to count that day
toward the 70-day limit.  In such circumstances, the parties would not
know when trial had to be scheduled.  They would be unable to
establish realistic prosecutorial and trial priorities.  The result
would be unwitting violations of the Act's 70-day limit, and the
unnecessary dismissal of indictments.

   A "reasonable necessity" limitation, however, simply cannot be
applied in a precise or predictable manner.  Because the speedy trial
clock may start running at any point under such a standard, the
parties and the court never would know where they stood.  And this
problem is compounded because a finding that a particular delay was
not "necessary" must be made retrospectively.  The unforeseeable --
and thus unavoidable -- dismissal of indictments that would follow
from such an approach could serve no purpose.  The prospect of such
dismissals, moreover, would likely lead courts to give pretrial
motions unjustifiably short shrift, a result that would serve the
interests neither of defendants nor of the public.

   D. Finally, it should be noted that petitioners cannot prevail even
under their interpretation of the Act, because the time consumed by
the district court was in fact reasonably necessary to dispose of the
pretrial motions (mostly filed by petitioners themselves) in this
case.  Prior to the hearing on March 25, 1981, petitioners submitted
several complex motions and a host of supplementary papers, and sought
two lengthy postponements.  In these circumstances -- where
petitioners' counsel took no steps to advance the hearing date and in
fact were unavailable or unprepared for scheduled hearings, and where
petitioners advanced several motions in seriatim fashion -- the delay
in holding a hearing hardly can be termed unreasonable.  Similarly,
most of the delay after the March 25, 1981 hearing was spent gathering
factual materials necessary for the resolution of petitioners'
motions.  In light of this history, the simple fact that petitioners
launched an especially vigorous and time-consuming pretrial attack
should not lead to the dismissal of the indictment:  "The Act was not,
after all, meant to provide defendants with tactics for ensnaring the
courts into situations where charges would have to be dismissed on
technicalities." United States v. Bufalino, 683 F.2d 639, 646 (2d Cir.
1982), cert. denied, 459 U.S. 1104 (1983).

                               ARGUMENT

 I. THE PRETRIAL MOTION EXCLUSION RUNS FROM THE FILING OF A PRETRIAL
MOTION UNTIL THAT MOTION IS TAKEN UNDER ADVISEMENT

   Under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq., as
amended in 1979, a criminal trial must commence within 70 days of the
defendant's indictment or first appearance with counsel, whichever
last occurs.  18 U.S.C. 3161(c)(1).  See United States v.
Rojas-Contreras, No. 84-1023 (Dec. 16, 1985), slip op. 3.  That 70-day
period, however, is not counted in consecutive calendar days.
Instead, certain triggering events result in the automatic exclusion
of time from the 70-day speedy trial computation.  18 U.S.C.
3161(h)(1)-(7).  One such event is the filing of a pretrial motion.
18 U.S.C. 3161(h)(1)(F).  See United States v. Stafford, 697 F.2d
1368, 1371-1372 (11th Cir. 1983);  United States v. Cobb, 697 F.2d 38,
41-42 (2d Cir. 1982);  United States v. Brim, 630 F.2d 1307, 1312 (8th
Cir. 1980), cert. denied, 452 U.S. 966 (1981).

   The question here is when the exclusion triggered by petitioners'
pretrial motions ended, thus permitting their 70-day clock to again
begin ticking.  In our view, the Act provides a simple answer to this
question.  The language of the pretrial motion provision, Section
3161(h)(1)(F), excludes the entire period from the filing of a motion
through the date on which the court receives everything that it
expects to obtain from the parties before reaching a decision --
whether that occurs at a hearing, with the submission of post-hearing
briefs or evidentiary materials, or without a hearing ever having been
held.  At that point, the separate "under advisement" exclusion
defined by Section 3161(h)(1)(J) comes into play, excluding an
additional 30 days during which the court considers its ruling.  This
reading of the statute, which creates a sensible and manageable system
for the administration of the speedy trial process, is the only one
that can be reconciled with the language, legislative history, and
policy of the Act.

 A. The Language Of 18 U.S.C. 3161(h)(1)(F) Excludes The Entire Period
Between The Filing Of A Motion And The Date On Which The Motion Is
Taken Under Advisement

   1. Petitioners assert that the pretrial motion exclusion is bounded
by a "reasonable necessity" limitation;  in their view, the exclusion
triggered by their pretrial motions terminated at the point when the
time "reasonably necessary" to hold a hearing had passed (Pet. Br.
12-17).  As the court below recognized, however, this submission is
inconsistent with the language of the Act.  Section 3161(h)(1)(F)
(hereinafter cited as Subsection (F)) flatly excludes "(a)ny period of
dealy * * * 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." /14/ At least where a hearing is held on
a motion, the statute could not speak more clearly:  Subsection (F)
"by its terms excludes without qualification the entire period between
the filing of the motion and the conclusion of the hearing." Stafford,
697 F.2d at 1373.  See United States v. Schuster, No. 84-4705 (5th
Cir. Nov. 26, 1985), slip op. 1350;  United States v. Mastrangelo, 733
F.2d 793, 796 (11th Cir. 1984);  United States v. Horton, 705 F.2d
1414, 1416 (5th Cir.), cert. denied, 464 U.S. 997 (1983);  Pet. App.
A9.  /15/

   An examination of the other provisions of the Act confirms that
Congress's omission of a "reasonable necessity" qualification from
Subsection (F) was deliberate.  Like the pretrial motion exclusion,
most of the excludable periods enumerated in Section 3161(h) encompass
"(a)ny period of delay resulting from" a given event.  The Act
excludes, for example, all of the time consumed by an interlocutory
appeal, be that two weeks or two years.  18 U.S.C. 3161(h)(1)(E).  Cf.
United States v. Loud Hawk, No. 84-1361 (Jan. 21, 1986) (addressing
Sixth Amendment's Speedy Trial Clause).  It similarly excludes without
limitation all delay resulting from a competency examination (18
U.S.C. 3161(h)(1)(A)) or from the defendant's unavailability (18
U.S.C. 3161(h)(3)(A)).  And if the government dismisses the original
indictment with time remaining on the speedy trial clock, the clock
does not resume ticking until a superseding indictment is returned --
even if that occurs years later.  18 U.S.C. 3161(h)(6).  Cf. United
States v. MacDonald, 456 U.S. 1, 7 & n.7 (1982).  See also 18 U.S.C.
3161(h)(1)(B), (C), (D), (G) and (I);  18 U.S.C. 3161(h)(2), (4), (5)
and (8).

   In contrast to those unqualified provisions, Congress placed
absolute limits on the length of certain other speedy trial
exclusions.  The Act thus excludes only 30 of the days during which a
pretrial motion or other proceeding concerning the defendant is under
advisement by a court (18 U.S.C. 3161(h)(1)(J)), and excludes only one
year of any delay that follows from an official request for evidence
in a foreign country.  See Pub. L. No. 98-473, Section 1219, 98 Stat.
2167 to be codified at 18 U.S.C. 3161(h)(9).  Indeed, the Act in
Section 3161(h)(7) makes use of the very reasonableness limitation
contended for by petitioners here, excluding a "reasonable period of
delay when the defendant is joined for trial with a codefendant as to
whom the time for trial has not run and no motion for severance has
been granted."

   Against this background, "(i)t is clear that Congress knew how to
provide for" limited exclusions when it wanted to do so
(Rojas-Contreras, slip op. 4);  its failure to place such a limitation
in Subsection (F) should be dispositive.  Cf. ibid.; Lehman v.
Nakshian, 453 U.S. 156, 162 (1981).  At a minimum, then, the Act
cannot be read so as to make nonexcludable any portion of the period
from the filing of a pretrial motion through the completion of the
hearing on that motion.

   2. Petitioners attempt, however, to give the Act just such a
reading;  while Subsection (F) in terms admits of no exceptions, it
evidently is "not clear enough to preclude human ingenuity from
creating ambiguity." FHA v. The Darlington, Inc., 358 U.S. 84, 92
(1958) (Frankfurter, J., dissenting).  For their part, petitioners
make one valiant attempt to inject ambiguity into the language of the
statute.  Noting that the Act excludes the period prior to a hearing
on "or other prompt disposition of" a pretrial motion, they suggest
(Pet. Br. 12) that Subsection (F) imposes a promptness requirement on
the timing of pretrial hearings.  If a hearing is not held promptly,
in their view, all of the time after the hearing should have been held
becomes nonexcludable.  /16/

   This reading, however, is flawed on its face.  Subsection (F) is
written in the disjunctive;  the term "prompt" -- to the extent that
it imposes a discernible limit on the pretrial motion exclusion at all
-- applies only to motions that terminate in "other * * *
disposition(s)," rather than to motions that are submitted following a
hearing.  See Stafford, 697 F.2d at 1373 n.4;  United States v. Janik,
723 F.2d 537, 550 (7th Cir. 1983) (Flaum, J., concurring in the
result).  Congress itself confirmed this seemingly self-evident
proposition at the time that it put Subsection (F) in its current form
(and inserted the prompt disposition term in the statute), explaining
that the prompt disposition language "is intended to provide a point
at which time will cease to be excluded, where motions are decided on
the papers filed without hearing." S. Rep. 96-212, 96th Cong., 1st
Sess. 34 (1979) (emphasis added).

   In any event, even for motions decided on the papers, Subsection
(F)'s reference to promptness does not place an undefined
reasonableness cap on the length of the pretrial motion exclusion.
Instead, it was designed to work in conjunction with Section
3161(h)(1)(J) (hereinafter cited as Subsection (J)), the "under
advisement" exclusion, to prevent courts from indefinitely postponing
the resolution of pretrial motions by declining to rule on them.

   Subsection (J) excludes from the speedy trial computation a maximum
of 30 days during which "any proceeding concerning the defendant"
(including a pretrial motion) is "under advisement." As Congress
explained, and as the Judicial Conference has recognized, a motion is
taken under advisement for purposes of Subsection (J) "'after all oral
argument is heard and all briefs have been submitted on the matter.'"
H.R. Rep. 93-1508, 93d Cong., 2d Sess. 33 (1974) (citation omitted).
/17/ See Comm. on the Administration of the Criminal Law of the
Judicial Conference of the United States, Guidelines to the
Administration of the Speedy Trial Act of 1974, as Amended 36 (rev.
Dec. 1979, with amendments through Oct. 1984) (hereinafter cited as
Judicial Conference Guidelines) (a motion is taken under advisement
when the court receives "everything it expects from the parties before
reaching a decision").  Subsection (F)'s promptness language was
intended to ensure that the pretrial motion exclusion would not
swallow the under advisement exclusion in cases in which the motion
required no hearing, by permitting courts unlimited delay in ruling on
motions after receiving all of the parties' papers.  By insisting on a
prompt disposition, Congress intended to provide that the pretrial
motion exclusion would run only until the motion is taken under
advisement;  at that point, the court would have 30 excludable days in
which to issue a ruling.  The Senate Report thus flatly declared:  "In
using the words 'prompt disposition,' the Committee intends to make it
clear that, in excluding time between filing and disposition on the
papers, the Committee does not intend to permit circumvention of the
30-days, 'under advisement' provision contained in Subsection
(h)(1)(J)." S. Rep. 96-212, supra, at 34.  /18/

   c. In the face of Subsection (F)'s unequivocal language,
petitioners ultimately acknowledge (Pet. Br. 15-16) that a literal
application of the statute should exclude the entire period between
the filing of a motion and the hearing on that motion.  Given this
recognition, they offer an alternative approach:  they contend (Pet.
Br. 20-21) that the plain language of Subsection (F) terminates the
pretrial motion exclusion at the moment that the hearing ends.  This
proposed reading, however, is entirely without support and would play
havoc with the statutory structure.

   The pretrial motion provision was designed to exclude from the
speedy trial computation all time that is consumed in placing the
trial court in a position to dispose of a motion.  Cf. S. Rep. 96-212,
supra, at 9-10 (Section 3161(h)(1)-(7) exclude "specific and recurring
periods of time often found in criminal cases");  H.R. Rep. 93-1508,
supra, at 21 (Act's exclusion provisions reach "hearings, proceedings
and necessary delay which normally occur prior to the trial").  Yet as
the facts of this case demonstrate (see pages 39-41, infra), courts
occasionally find it impossible to resolve motions until post-hearing
briefs or additional factual materials have been submitted.  Cf.
United States v. Turner, 725 F.2d 1154, 1160 (8th Cir. 1984);  United
States v. Bufalino, 683 F.2d 639, 645 (2d Cir. 1982).  It hardly would
have been sensible for Congress to have excluded automatically all
time prior to the hearing on a motion -- as well as the first 30 days
after the motion is taken under advisement with the filing of the
final post-hearing papers -- while permitting the speedy trial clock
to run down during the intervening period, at which point the court
remains unable to rule because it is awaiting the submission of
additional materials.  Indeed, reading the Act to establish such a
scheme would mean that Congress sharply and senselessly differentiated
between motions decided on the papers, as to which the subsection (F)
exclusion runs until the motion is taken under advisement (see pages
23-24, supra), and motions on which hearings are held.

   In fact, however, the statutory structure suggests that Congress
did not have such a scheme in mind.  Subsection (F)'s "prompt
disposition" language refers to the point at which a motion submitted
on the papers is taken under advisement (or is decided);  by
suggesting that hearings are equivalent to "other" prompt
dispositions, Congress indicated that the pretrial motion exclusion
also should continue to run in cases involving hearings until the
matter is finally taken under advisement.  Normally, of course, that
will occur at the close of the hearing, and Congress evidently
legislated with that situation in mind.  But motions are not
invariably taken under advisement at that point.  Recognizing this
reality of trial court litigation, the Judicial Conference has advised
that

         exclusion for delay resulting from pretrial motions be
      treated as ending at such time as the court has received
      everything it expects from the parties before reaching a
      decision -- that is, such date as all anticipated briefs have
      been filed and any necessary hearing has been completed.
      Thereafter, the matter should be treated as "under advisement,"
      and subject to the rules of subparagraph (J).

Judicial Conference Guidelines 35-36.  /19/ And the courts of appeals
-- even those that have imposed a reasonable necessity limitation on
the pretrial motion exclusion -- uniformly have agreed that the
Subsection (F) exclusion continues in effect until the motion is taken
under advisement.  See Schuster, slip op. 1350;  United States v. Ray,
768 F.2d 991, 998 (8th Cir. 1985);  United States v. Anello, 765 F.2d
253, 256 (1st Cir. 1985);  United States v. Mers, 701 F.2d 1321, 1336
(11th Cir.), cert. denied, 464 U.S. 991 (1983);  Cobb, 697 F.2d at 43.
 See also Mitchell, 723 F.2d at 1047 & n.6;  Janik, 723 F.2d at 543,
544;  Stafford, 697 F.2d at 1373.  Petitioners have offered no reason
to disregard this authority.

   It should be added that this reading of Subsection (F) does not
play fast and loose with the statutory language, as petitioners
suggest (Pet. Br. 20-21).  Section 3161(h)(1) (emphasis added)
generally excludes "(a)ny period of delay resulting from other
proceedings concerning the defendant, including but not limited to"
the particular exclusions enumerated in Subsections 3161(h)(1)(A)-(J).
 In placing this language in the Act, Congress was taking "pains to
forestall the possibility that a desire to be instructively particular
not be misinterpreted as exclusively inflexible" (S. Rep. 96-212,
supra, at 10);  the list of exclusions is thus explicitly "'not
intended to be exhaustive.'" Ibid. (citation omitted).  And the
post-hearing filing of briefs and evidentiary materials relating to a
pretrial motion is, of course, a "'proceeding( ) concerning the
defendant.'" Indeed, until the moment that a motion is taken under
advisement, pre- and post-hearing delay are in all relevant respects
identical:  both involve the use "'of procedures of which a defendant
might l(e)gitimately seek to take advantage for the purpose of
pursuing his defense'" (ibid. (citation omitted)), and both encompass
periods in which delay is a consequence of the court's simple
inability to issue a ruling.  To the extent that post-hearing delay
prior to the point at which the motion is taken under advisement does
not fall squarely within the language of Subsection (F), it
nevertheless is automatically excludable under the general language of
Section (h)(1).  /20/

 B. The Legislative History Of Section 3161(h)(1)(F) Demonstrates That
Congress Did Not Intend To Impose A "Reasonable Necessity" Limitation
On The Pretrial Motion Exclusion

   Our reading of the language of Subsection (F) is not only the most
natural interpretation, but is also confirmed by the legislative
history.  An examination of that history shows that Congress meant
precisely what it said:  the pretrial motion exclusion was not
intended to have a "reasonable necessity" cap.

   When originally enacted in 1974, the Act provided for arraignment
within 10 days of indictment and trial within 60 days of arraignment.
18 U.S.C. (1976 ed.) 3161(c).  /21/ As in the current Act, the 60-day
period could be expanded by excluding certain periods of dealy.  The
pretrial motion provision of the original version of the Act was a
very limited one, however, reaching only "delay resulting from
hearings on pretrial motions." 18 U.S.C. (1976 ed.) 3161(h)(1)(E).

   Like other provisions added to the Act in 1979 (see
Rojas-Contreras, slip op. 4-5), the current pretrial motion exclusion
was inspired by a set of guidelines interpreting the 1974 Act that
were issued by the Second Circuit Judicial Council in early 1979.  See
Judicial Council Speedy Trial Act Coordinating Comm., Guidelines Under
the Speedy Trial Act (Jan. 16, 1979), reprinted in The Speedy Trial
Act Amendments of 1979:  Hearings on S. 961 and S. 1028 Before the
Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 386-436 (1979)
(hereinafter cited as 1979 Senate hearings).  Those guidelines took an
expansive view of the pretrial motion provision, flatly excluding "the
time beginning with the date the Court determines that written papers
are required and ending with 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." Id. at 398-399.  /22/ The
guidelines also established a strict timetable for the filing of
motions (id. at 398), and noted that the 1974 version of the Act's
under advisement exclusion (which was identical to the current
Subsection (J)) provided courts with an additional 30 excludable days
in which to resolve motions (id. at 399).

   Subsection (F) plainly was patterned on the Second Circuit
Guidelines, which it generally mirrors.  /23/ In contrast, Congress
rejected a proposal by the Judicial Conference that would have
permitted the exclusion only of delays that are "reasonably
necessitated by" certain events, including "pretrial proceedings of
unusual complexity." 1979 Senate Hearings 11.  See id. at 63
(statement of Judge Alexander Harvey II).  /24/

   Indeed, Congress was fully aware of the breadth of the pretrial
motion exclusion created by Subsection (F), acknowledging that, "if
basic standards for prompt consideration of pretrial motions are not
developed, this provision could become a loophole which could
undermine the whole Act." S. Rep. 96-212, supra, at 34.  But Congress
did not respond to this potential problem by adding a "reasonable
necessity" limitation to the statute;  instead, the House indicated
that it adopted Subsection (F) "with the intention that potentially
excessive and abusive use of this exclusion be precluded by district
or circuit guidelines, rules, or procedures relating to motions
practice." H.R. Rep. 96-390, 96th Cong., 1st Sess. 10 (1979).  The
Senate agreed that "the change the committee amendment makes with
respect to the automatic exclusions for pretrial motions in (h)(1)(F)
is an appropriate subject for circuit guidelines." S. Rep. 96-212,
supra, at 34.  /25/

   Congress thus intended Subsection (F) to establish rigid starting
and ending points for the running of the pretrial motion exclusion;
it was left to the courts to ensure that the period between the two is
not excessive.  /26/ By proposing that the Act itself place a
limitation on the length of the exclusion, petitioners would read into
the statute a restriction that Congress consciously chose not to place
there.  /27/

 C. The Creation Of A "Reasonable Necessity" Limitation To The
Pretrial Motion Exclusion Would Make Effective Application Of The Act
Impossible

   At the bottom, petitioners appeal to the policy of the Act.  "(T)he
sense of the Speedy Trial Act," they declare, "is to ensure a speedy
trial" (Pet. Br. 15), a result that in their view can be achieved only
if a limit is placed on the length of the pretrial motion exclusion.
But even leaving aside the question whether appeals to policy ever may
overcome contrary language in a statute (see Board of Governors v.
Dimension Financial Corp., No. 84-1274 (Jan. 22, 1986), slip op. 12),
petitioners' analysis is flawed on its own terms.  "The word speedy
does not * * * denote assembly-line justice, but efficiency in the
processing of cases which is commensurate with due process." H.R. Rep.
93-1508, supra, at 15.  See S. Rep. 96-212, supra, at 19-20.  The Act
thus gives weight to interests in addition to expedition, and
questions concerning its application cannot routinely be resolved by
choosing the narrowest exclusions or the shortest time limits.  This
case presents a clear example of that principle.

   There is little doubt that an essential aspect of the efficient and
rational application of the Act is precision in its time limits:  the
Act cannot work unless the starting and stopping points of the speedy
trial clock are precise and easily discernible.  The parties
(particularly, of course, the government) and the court must be able
to know as each day passes whether to count that day toward the 70-day
limit.  If they were unable to do so, they would not know when they
had reached or were approaching the last day on which trial could
commence.  They accordingly would not know when trial had to be
scheduled.  They would not know whether it was necessary to seek an
"ends-of-justice" continuance pursuant to Section 3161(h)(8).  Courts
and prosecutors would be unable to establish realistic priorities by
identifying those cases that were so pressing as to require the
immediate application of prosecutorial or judicial resources.  The
inevitable result would be unwitting violations of the Act's 70-day
limit, and the unnecessary dismissal of indictments.  18 U.S.C.
3162(a)(2).

   However superficially appealing a "reasonable necessity" limitation
may appear, it suffers from the inescapable drawback that it simply
cannot be applied in a precise or predictable manner.  As the court
below explained, "if the start (of the speedy trial clock) is to be at
the point when the passage of time becomes 'unreasonable,' even if the
period of delay mentioned in the statute has not expired, neither the
court nor the parties can know where they stand" (Pet. App. A12-A13).
And this problem is compounded because, as the Second Circuit has
candidly acknowledged, "(u)nlike the determination that time will be
excluded from the speedy trial clock based on the 'ends of justice,' *
* * the finding that a particular time period was 'reasonably
necessary' for the processing of a motion is by its nature
retrospective." United States v. Simmons, 763 F.2d 529, 532 (1985).
Yet once time has elapsed, neither the government nor the court can
recapture it for speedy trial purposes if it is ruled excludable
through a retrospective determination.  /28/

   The problems caused by this type of system already are visible in
the circuits that have created "reasonable necessity" limitations.
Petitioners assert (Br. 16) that the limitation has been applied
successfully by those courts.  In fact, however, the decisions cited
by petitioners simply engaged in (or directed the district courts to
engage in) post hoc attempts to determine whether motions could have
been disposed of more expeditiously.  See Simmons, 763 F.2d at 532, on
remand, No. 84-CR-213 (S.D.N.Y. Sept. 17, 1985), appeal pending, No.
85-1359 (2d Cir.) (remanding for a reasonable necessity determination;
 district court's determination that delay was reasonably necessary
now under appeal);  United States v. Ray, 768 F.2d 991 (8th Cir.
1985), after remand, No. 84-2230 (8th Cir. Nov. 15, 1985) (remanding
for reasonable necessity determination, and on appeal from the
district court's determination that the delay was not reasonably
necessary);  United States v. Brown, 736 F.2d 807, 809-810 (1st Cir.
1984), aff'd, 770 F.2d 241 (1st Cir. 1985) (remanding for a reasonable
necessity determination, and affirming the district court's decision
to dismiss the indictment (without prejudice) because the delay was
not reasonably necessary);  Janik, 723 F.2d at 549 (remanding for a
reasonable necessity determination);  Cobb, 697 F.2d at 46 (same).
This approach, which leads to the unforeseeable -- and thus
unavoidable -- dismissal of indictments, is hardly a sensible way in
which to administer the Act.  /29/

   Petitioners' approach also would have other consequences that would
disserve the interests both of defendants and of the public.  As the
enactment of Subsection (F) suggests, pretrial motions often present
difficult legal and evidentiary issues that require "thoughtful
consideration" by the court and the parties (Pet. App. A13).  Cf. Loud
Hawk, slip op. 10.  Yet the prospect of dismissal of the indictment if
the trial court later is deemed to have given the parties too much
time to file their legal and evidentiary materials may lead district
courts to give pretrial motions unjustifiably short shrift.
Conversely, if the court devotes what it believes to be an adequate
amount of time to the presentation and consideration of a motion, "'it
would indeed be anomalous to permit the defendant to benefit from
delay properly undertaken to protect his interests in a fair
adjudication of the charges against him by allowing dismissal without
exclusion of that time.'" S. Rep. 96-212, supra, at 9.

 II. THE DELAY IN THIS CASE WAS REASONABLY NECESSARY TO RESOLVE
PETITIONERS' MOTIONS

   Petitioner's challenge to the decision below rests entirely on the
proposition that a "reasonable necessity" limitation should be placed
on the pretrial motion exclusion.  They evidently recognize that there
was no violation of the Act in this case if the entire period between
the filing of a motion and the time that it is taken under advisement
is excludable.  If the Court accepts our submission that a "reasonable
necessity" limitation should not be read into Subsection (F), the
decision below must be affirmed.

   Even if the Act is interpreted as petitioners propose, however,
they are not entitled to relief, because the time consumed by the
district court was in fact reasonably necessary to dispose of the
pretrial motions -- mostly filed by petitioners themselves -- in this
case.  In contending to the contrary, petitioners focus on two
periods:  that from November 3, 1980 through March 25, 1981, when a
hearing was held on their suppression motions;  and that from March
25, 1981 through September 14, 1981, when the filing of additional
pleadings concededly created a new period of exclusion under
Subsection (F) (Pet. Br. 3-4, 27-28).  /30/ We will address each of
these periods in turn.

   1. Petitioners acknowledge that the speedy trial clock stopped on
November 3, 1980, when they filed their first suppression motions;
they contend that the trial court delayed consideration of these
motions unnecessarily by failing to address them at a hearing until
March 25, 1981.  Tellingly, however, petitioners do not even attempt
to identify the point at which the delay became unreasonable and at
which, accordingly, the Subsection (F) exclusion should have ended.
This omission, of course, points up the difficulty of applying a
"reasonable necessity" limitation at all.  And an examination of the
record, in any event, demonstrates that the course followed in this
case was entirely reasonable.

   Petitioners' suppression motions were complex;  they presented
several Fourth and one Sixth Amendment issue.  See page 4 & note 2,
supra.  A hearing on the motions was scheduled to commence some three
weeks after they were filed, on November 26, 1980.  Two days prior to
the scheduled hearing, petitioners filed an additional pleading in
support of their motions, raising a significant new evidentiary
challenge to the government's warrant affidavit.  The court
accordingly rescheduled the hearing to January 28, 1981.  Prior to
that date, however, petitioners filed yet another motion (to reveal
the identities of informants and other information), /31/ while the
attorney for one of the petitioners sought to delay the hearing until
February 18, 1981.  The hearing was rescheduled to that date to
accommodate this request.  Prior to the new hearing date, petitioners'
codefendant filed a motion of his own.  And on the hearing date,
petitioners were granted another postponement to permit them to
respond to the government's papers.  That response was filed on March
2, 1982, and the hearing was held some three weeks later, on March 25,
1982.  See pages 4-6, supra.

   Petitioners thus submitted at least four motions prior to the
hearing date, only two of which were filed simultaneously.  They also
filed a host of supplementary papers, one of which advanced a
significant new evidentiary argument.  Petitioners themselves sought
two lengthy postponements.  Petitioners' final papers were submitted
only three weeks before the hearing was held.  In these circumstances
-- where petitioners' counsel took no steps to advance the hearing
date (cf. United States v. Snyder, 707 F.2d 139, 142-143 (5th Cir.
1983)) and in fact were unavailable or unprepared on the scheduled
hearing dates (cf. Mitchell, 723 F.2d at 1048), and where petitioners
advanced several complex motions in seriatim fashion -- the delay in
holding a hearing hardly can be termed unreasonable.  /32/ Cf. Anello,
765 F.2d at 257 (155-day delay between filing of a motion and the
hearing reasonably necessary);  Rush, 738 F.2d at 503 (four-month
delay between filing and hearing reasonably necessary).

   2. The Subsection (F) exclusion, moreover, plainly did not
terminate with the March 25, 1981 hearing because, as the district
court itself noted, in no meaningful sense can the court be said to
have taken petitioners' motions under advisement on that date.  /33/
See page 7, supra.  Instead, the court declined at the hearing to
consider certain of petitioners' suppression claims, as well as their
claim of prosecutorial misconduct, pending the submission of
additional factual materials by the government (see page 7, supra) --
a disposition that petitioners did not challenge.  J.A. 43, 53.  These
materials were submitted in April and June.  /34/ Shortly afterwards,
however, on July 6, 1981, petitioners contested the government's June
submission, advanced a significant new evidentiary claim relating to
the government's warrant affidavit, and requested an evidentiary
hearing.  /35/ In August, September and November the government and
petitioners filed additional evidentiary materials relating to the
warrant affidavit.  See pages 7-8, supra.

   Two conclusions are evident from this recitation of the record.
First, the district court plainly did not take petitioners'
suppression motion (let alone all of their motions) under advisement
at the March 25, 1981 hearing.  The question presented in that motion
involved hotly debated factual issues;  the court was hardly in a
position to decide it without the additional evidence submitted by the
parties in the summer and fall of 1981.  /36/ And the delay occasioned
by those filings was not unreasonable under any standard.  Most of the
period in question was spent gathering factual materials necessary for
the resolution of petitioners' motions.  Indeed, one of petitioners'
attorneys candidly acknowledged during the argument on their speedy
trial motion that the delay in this case was in large part
petitioners' responsibility (J.A. 56).  In light of this history, the
simple fact that petitioners launched an especially vigorous and
time-consuming pretrial attack should not lead to the dismissal of the
indictment:  "The Act was not, after all, meant to provide defendants
with tactics for ensnaring the courts into situations where charges
will have to be dismissed on technicalities." Bufalino, 683 F.2d at
646.  Cf. Loud Hawk, slip op. 14.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   CHARLES A. ROTHFELD

      Assistant to the Solicitor General

   PATTY MERKAMP STEMLER

      Attorney

   FEBRUARY 1986

   /1/ Bell was not named in the original indictment, which was
returned on July 30, 1980.

   /2/ The joint motion sought suppression of the beeper signals
intercepted in Watsonville, of all material obtained in the course of
the search of the Watsonville laboratory, and of all material obtained
as a consequence of Thornton's arrest in Watsonville.  In support of
the motion, petitioners contended that the beeper had been placed
without statutory authority or probable cause;  that the search
warrant supporting the search in Watsonville was defective;  and that
Thornton's arrest was a consequence of the execution of the assertedly
defective warrant.  In particular, petitioners challenged the
sufficiency of the affidavit supporting the warrant, contending that
it did not make out probable cause and failed to establish the
credibility of a confidential informant.

   Henderson's separate motion sought suppression not only of the
evidence obtained in Watsonville, but also of beeper signals
intercepted in Ohio and Kentucky;  of material obtained as a
consequence of Henderson's arrest;  and of statements made by
Henderson to a Drug Enforcement Administration agent several weeks
after his arrest.  Henderson's arguments concerning the beeper signals
and the search warrant echoed those made in support of the joint
motion.

   /3/ This motion challenged the veracity of the statement, contained
in the affidavit supporting the search warrant, that Henderson had
telephoned Thornton's Watsonville address from a hotel in Ohio shortly
after purchasing precursor chemicals.

   /4/ The government filed its response to Henderson's separate
motion to suppress on February 17, 1981 (J.A. 2, 28).

   /5/ Those issues were:  whether law enforcement agents violated the
Fourth Amendment when they monitored the beeper signals in California
(presented in petitioners' joint motion of November 3, 1980);  whether
law enforcement agents violated the Fourth Amendment when they
monitored the beeper signals in Ohio and Kentucky (presented in
Henderson's motion of November 3, 1980);  whether the warrant
supporting the search of the Watsonville laboratory was defective
(presented in petitioners' joint motion of November 3, 1980,
Henderson's motion of November 3, 1980, and petitioners' supplemental
memorandum of November 24, 1980);  whether Thornton's arrest was
defective (presented in petitioners' joint motion of November 3,
1980);  whether Henderson's arrest was defective (presented in
Henderson's motion of November 3, 1980);  whether statements were
obtained from Henderson in violation of the Sixth Amendment (presented
in Henderson's motion of November 3, 1980);  whether the identity of
government informants should be revealed (presented in petitioners'
motion of January 13, 1981);  whether a co-defendant could join in
petitioners' suppression claims (presented in Bell's motion of
February 13, 1981);  and whether Henderson and a co-defendant had
standing to contest the search of the Watsonville laboratory
(presented in the government's supplemental response of March 4,
1981).

   /6/ The court took Henderson's Sixth Amendment motion under
submission at the March 25, 1981 hearing (J.A. 51).

   /7/ On August 18, 1981, the government filed an affidavit by a Drug
Enforcement Administration agent confirming the representations made
in the June 25 letter (J.A. 2, 29).  On September 14, 1981,
petitioners filed a supplemental memorandum supporting their July 6,
1981 assertion of an additional misrepresentation in the search
warrant affidavit;  petitioners attached an affidavit from a telephone
company employee purporting to support their claim (J.A. 3, 30).  On
November 10, 1981, the government responded to this claim, attaching
an affidavit from the same telephone company employee repudiating her
earlier statement (ibid.).

   /8/ On January 25, 1982, the government moved the district court to
set the case for trial (J.A. 31).  At a status hearing on February 3,
1982, however, petitioners' counsel informed the court that they
intended to file a motion for reconsideration on the suppression
issues.  With the consent of all counsel, the court accordingly
continued the case until April 21, 1982.  Ibid.  Petitioners filed
their motion for reconsideration on March 23, 1982;  after an
evidentiary hearing on May 10, 1982, the court denied the renewed
motion, as well as all other pending motions (J.A. 32).  The court
also set a trial date of September 13, 1982, noting that the delay was
necessitated by difficulties in "coordinat(ing) the schedules of five
defense attorneys and the attorney for the government" (ibid.).

   /9/ Normally, the return of a superseding indictment does not
restart the 70-day clock.  18 U.S.C. 3161(h)(6);  United States v.
Rush, 738 F.2d 497, 510-511 (1st Cir. 1984), cert. denied, No. 84-685
(Feb. 25, 1985);  United States v. Horton, 676 F.2d 1165, 1170 (7th
Cir. 1982), cert. denied, 459 U.S. 1201 (1983).  In this case,
however, a new defendant, Peter Bell, was added in the superseding
indictment.  Thus, as to him the 70-day period began with the return
of the superseding indictment.  Under Section 3161(h)(7), a single
speedy trial clock is used for all defendants who are joined for
trial.  United States v. Carey, 746 F.2d 228, 231 (4th Cir. 1984),
cert. denied, No. 84-1272 (Mar. 4, 1985);  United States v. Dennis,
737 F.2d 617, 620-621 (7th Cir. 1984), cert. denied, No. 84-5267 (Oct.
1, 1984);  United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir.
1984), cert. denied, No. 83-6945 (Oct. 1, 1984).  Accordingly, as the
district court explained, once Bell was joined with petitioners in the
superseding indictment, their 70-day period also had to be measured
with respect to the superseding indictment so that their clock and
Bell's would run simultaneously (J.A. 25).

   /10/ The court also explained that the period from October 22,
1980, through November 12, 1980, was excludable because covered by a
continuance (J.A. 25-26).

   /11/ The court explained that the period between January 25 and May
10, 1982 -- when a trial date was set -- was excludable on alternative
grounds:  because the government's motion to set a trial date was
pending during that period, and because the "(t)ime for setting the
date was put off due to the representations of defense counsel that
they wanted time to file a motion to reconsider." The court also found
the period between May 10, 1982, and the trial date to be excludable
because the delay followed from "(t)he unavailability of various
defense counsel." J.A. 31-34.

   /12/ Viewing petitioners' claim in the most favorable light, the
district court assumed that the 48-day period from September 3, 1980
through October 22, 1980 (when a continuance was granted) was
nonexcludable (J.A. 26).  The court also explained that the four days
between January 15, 1982 (when the 30-day "under advisement" period of
18 U.S.C. 3161(h)(1)(J) expired) and January 19, 1982 (when the court
denied petitioners' motion to suppress) were nonexcludable (J.A. 31);
it likewise held the five days between January 19, 1982 and January
25, 1982 (when the government filed a motion to set the case for
trial) to be nonexcludable (ibid.).  And the court evidently reasoned
that the nine-day period from Janaury 25, 1982 through February 3,
1982 would be nonexcludable if the government's motion to set the case
for trial did not toll the running of the statute (J.A. 34).  In all,
this meant that no more than 66 days were not excludable.  See Pet.
App. A6.

   /13/ Judge Ferguson dissented (Pet. App. A26-A34), maintaining that
"(t)he majority opinion sets the Speedy Trial Act on its head and will
allow trial judges to delay ruling on pretrial motions indefinitely"
(id. at A26).  He found support for his view in the decisions of other
circuits (see id. at A29-A32) and in the Act's legislative history
(id. at A32-A33).

   /14/ In excluding delay "resulting from" pretrial motions, Congress
did not intend courts "to determine the reality of whether or not a
particular proceeding interfered with the commencement of trial."
Cobb, 697 F.2d at 42 (footnote omitted).  Instead, it indicated that
the exclusion should be "automatic" once the triggering event -- here,
the filing of a motion -- occurs.  S. Rep. 96-212, 96th Cong., 1st
Sess. 26, 33, 34 (1979).  Compelling practical considerations also
support this conclusion:  as the lower courts have recognized,
determining whether the filing of a given pretrial motion in fact
delayed the commencement of trial "frequently would pose more
difficult issues than the trial itself and in some cases would be
simply impossible to determine" (Cobb, 697 F.2d at 42 n.6), while
"resulting (in) uncertainty for defendants as to their Speedy Trial
status." Stafford, 697 F.2d at 1371.  For these reasons, the courts of
appeals uniformly have held that the pretrial motion exclusion is not
limited to delay that may be causally traced to the filing of a
motion.  See ibid.  (citing cases);  Cobb, 697 F.2d at 41-42;  Brim,
630 F.2d at 1312-1313.

   /15/ Several courts of appeals have read a "reasonable necessity"
limitation into Subsection (F).  United States v. Ray, 768 F.2d 991,
998-999 (8th Cir. 1985);  United States v. Mitchell, 723 F.2d 1040,
1047 (1st Cir. 1983);  United States v. Janik, 723 F.2d 537, 543 (7th
Cir. 1983);  United States v. Novak, 715 F.2d 810, 818, 819-820 (3d
Cir. 1983), cert. denied, 465 U.S. 1030 (1984);  Cobb, 697 F.2d at 44.
 The reasoning of these decisions is discussed below.  See notes 16,
27, infra.

   /16/ Two of the courts of appeals that have adopted the "reasonable
necessity" limitation similarly have relied on Subsection (F)'s
reference to "other prompt disposition." United States v. Janik, 723
F.2d 537, 543 (7th Cir. 1983);  Cobb, 697 F.2d at 43.

   /17/ The under advisement exclusion in the 1974 version of the Act
was identical to the current version.  See 18 U.S.C. (1976 ed.)
3161(h)(1)(G).

   /18/ Indeed, even courts that make use of a "reasonable necessity"
limit on the pretrial motion exclusion have recognized that "(t)he
reference to 'other prompt disposition' is hortatory only." Mitchell,
723 F.2d at 1046.

   /19/ The Judicial Conference explained:  "It may be noted that the
Committee recommendation treats the 'conclusion of the hearing on' a
pretrial motion as occurring only after receipt of any post-hearing
submissions that may be permitted by the court.  This is consistent
with the treatment of post-hearing submissions under the Second
Circuit guidelines, which were generally regarded favorably by the
Congressional proponents of the 1979 amendments.  (See page 30 & n.23,
infra.) In light of the general purpose of the 1979 amendment to this
paragraph, it would be anomalous to conclude that time for
post-hearing submissions was not excludable." Judicial Conference
Guidelines 36.

   /20/ The introductory language of Section 3161(h)(1), of course,
does not permit courts to circumvent the specific limitations placed
upon certain exclusions in Sections 3161(h)(1)(A)-(J).  See page 21,
supra.  If a court finds that one of those limitations is unduly
burdensome -- if, for example, a court finds that it cannot resolve an
unusually complex motion within the 30 days provided by Subsection (J)
-- it may in an appropriate case issue an "ends-of-justice"
continuance pursuant to Section 3161(h)(8).  See H.R. Rep. 93-1508,
supra, at 33 (acknowledging the "prerogative of the court to continue
cases upon its own motion where, due to the complexity or unusual
nature of the case, additional time is needed to consider matters
before the court").  The general language of Section 3161(h)(1) thus
makes a given period of delay excludable when that delay is of a sort
that is not specifically addressed in Section 3161(h)(1)(A)-(J), but
is similar in nature to the examples contained in those provisions.

   /21/ In 1979 Congress replaced those requirements with the current
70-day speedy trial period.  18 U.S.C. 3161(c)(1).

   /22/ A similar approach was advocated by the Justice Department
prior to the 1979 amendment of the Act;  the Department proposed that
the pretrial motion exclusion be expanded to encompass "delay
resulting from the preparation and service of pretrial motions and
responses and from hearings thereon." 1979 Senate Hearings 6.

   /23/ The Senate Committee explained that "(t)he Second Circuit has
interpreted the Act and its legislative history in a creative manner
which preserves its objectives and specifically addresses most of the
problems which have hindered its smooth implementation * * * .  After
careful reading, the Committee is of the opinion that the Second
Circuit guidelines are worthy of consideration by all the districts as
a model for future implementation, consistent with
presently-contemplated changes.  The Committee invites every circuit
council and district chief judge to give them the closest attention
possible." S. Rep. 96-212, supra, at 20.  However, Congress expressly
rejected one element of the guidelines (and of the Justice
Department's legislative proposal (see note 22, supra));  it declined
to make time spent in the preparation of motions automatically
excludable.  Instead, Congress indicated that, in complex cases, the
need for preparation time may be the basis for the grant of a
discretionary "ends-of-justice" continuance under Section 3161(h)(8).
S. Rep. 96-212, supra, at 33-34.

   /24/ Congress explained that the Judicial Conference's pre-1979
approach to the Act "too often * * * ha(d) erred on the side of
caution." S. Rep. 96-212, supra, at 20.

   /25/ The Senate noted that "(m)any courts by local rule have either
adopted an omnibus pretrial motions procedure, which requires
consolidation of all such motions soon after arraignment, or they
require the filing of pretrial motions within a specified number of
days (often 10) after arraignment, although they need not be
consolidated." S. Rep. 96-212, supra, at 34.  As noted above, the
Second Circuit guidelines -- which Congress commended to the attention
of the other courts (see note 23, supra) -- made use of the second
sort of procedure.  While Congress expressed no preference between the
two types of local rules (S. Rep. 96-212, supra, at 34), it plainly
expected that circuit or district court guidelines, rather than the
Act itself, would establish the "basic standards for prompt
consideration of pretrial motions." See Ibid.

   /26/ Several courts of appeals that have read a "reasonable
necessity" limitation into Subsection (F) have then exercised their
supervisory powers to require the district courts of the circuit to
implement that standard.  See Ray, 768 F.2d at 999;  Novak, 715 F.2d
at 820.  While requiring compliance with the Act certainly is a proper
subject for the exercise of an appellate court's supervisory powers
(cf. Thomas v. Arn, No. 84-5630 (Dec. 4, 1985)) the recognition of a
"reasonable necessity" limitation cannot be justified as an exercise
of that power.  As we explain below (at 33-36), the use of an
undefined "reasonable necessity" limitation runs counter to the policy
of the Act.  And the remedy for a violation of the time limits
contained in local court rules presumably would not be mandatory
dismissal of the indictment, as is the case when the Act is violated.

   /27/ Petitioners point (Pet. Br. 12) to one element of the
legislative history to support their argument:  a snippet of the
Senate Report that states, "(n)or 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. 96-212, supra, at 34.  Several courts
of appeals that have adopted a "reasonable necessity" limitation also
relied on this language.  Ray, 768 F.2d at 998;  Mitchell, 723 F.2d at
1047;  Novak, 715 F.2d at 819-820;  Cobb 697 F.2d at 43-44.  Read in
context, however, this statement -- which appears at the end of the
discussion of Subsection (F) -- plainly was directed not at the
meaning of Subsection (F) but at the policy the Senate expected to be
embodied in the local court guidelines, which were to require the
prompt scheduling of hearings.  The Senate thus indicated that time
should not be made "eligible for exclusion" through the postponement
of hearings;  it did not state that the postponement of hearings would
terminate the exclusion.  It should be added that the House Report,
which refers to the necessity of effective local court rules, does not
suggest that delay in the scheduling of hearings should terminate the
exclusion.  See H.R. Rep. 96-390, supra, at 10.

   /28/ For this reason, an excludable "ends-of-justice" continuance
cannot be revoked after the period of the continuance has expired.
United States v. Carlone, 666 F.2d 1112 (7th Cir. 1981), cert. denied,
456 U.S. 991 (1982).

   /29/ Petitioners also point to Section 3161(h)(7), which excludes a
"reasonable period of delay when the defendant is joined for trial
with a codefendant as to whom the time for trial has not run," as an
example of an exclusion containing a reasonableness limitation that
has been employed "with no apparent confusion" (Pet. Br. 16).  In
fact, however, most courts of appeals have ruled that an exclusion
applying to one defendant automatically applies to all defendants;
they have not made an independent determination whether the delay
involved was reasonable.  See, e.g., United States v. Carey, 746 F.2d
228, 231 (4th Cir. 1984);  United States v. Dennis, 737 F.2d 617,
620-621 (7th Cir. 1984);  Rush, 738 F.2d at 503-504;  Mitchell, 723
F.2d at 1048 (citing cases);  United States v. Campbell, 706 F.2d
1138, 1141 (11th Cir. 1983);  United States v. Fogarty, 692 F.2d 542,
546 (8th Cir. 1982), cert. denied, 460 U.S. 1040 (1983);  United
States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.), cert. denied, 449
U.S. 872 (1980).  Cf. United States v. Theron, No. 85-2881 (10th Cir.
Jan. 31, 1986), slip op. 8-9, 13.

   /30/ Petitioners generally challenge the exclusion of the period
from November 3, 1980 through January 19, 1982, when the district
court ruled on their suppression motion (Pet. Br. 3-4).  They
elsewhere acknowledge, however, that their September 14, 1981 pleading
tolled the running of the speedy trial clock (Pet. Br. 28 n.10).  In
addition, petitioners filed a due process motion on October 23, 1981,
which created still another period of exclusion under Subsection (F).
See page 8, supra.

   /31/ Had the Subsection (F) exclusion expired prior to this point,
of course, the filing of this motion would have started a new
exclusionary period.

   /32/ Indeed, petitioners did not object when the district court
indicated, on a minute entry docketed on March 31, 1981, that the
entire period through March 25, 1981 was excludable.  By local rule,
petitioners had five days within which to object to the finding of
excludability.  See U.S. District Court, Northern District of
California, Plan for Prompt Disposition of Criminal Cases, Section
II.6(b)(2)(i), at 11 (Apr. 7, 1980).

   /33/ The court did take Henderson's Sixth Amendment claim under
advisement at that time (see note 6, supra) -- an action that, as to
that motion, commenced the running of a 30-day Subsection (J)
exclusion.

   /34/ The prosecutor explained the delay in obtaining this material.
 The evidence relating to the government informant had been requested
in several other districts (J.A. 41).  And the prosecutor made
"numerous" unsuccessful requests for the toll records requested by
petitioners before obtaining them (J.A. 18).  During this period, the
prosecutor also was satisfying an informal request by petitioners for
information relating to the beeper surveillance (J.A. 29).  It may be
added that petitioners evidently saw no need for greater expedition in
obtaining the requested materials;  they had informed the court at the
March 25 hearing that counsel for Thornton would be unavailable for
approximately three months (J.A. 51-52).

   /35/ An evidentiary hearing eventually was provided in May 1982, in
connection with petitioners' motion for reconsideration of the denial
of their suppression motions.

   /36/ Indeed, while petitioners assert (Pet. Br. 28) that the motion
must be deemed to have been submitted on July 6, 1981, when they
challenged the accuracy of the government's filings, they fail to note
that their July 6 submission itself raised a significant new
evidentiary point.  See page 8, supra.  The court plainly required a
response to this allegation from the government.

   APPENDIX