By George Chipev
On February 22, 2011, the Supreme Court heard a less juicy but nonetheless interesting case - United States v. Tinklenberg, 131 S. Ct. 62 (2010) (No. 09-1498), on writ of certiorari from the Sixth Circuit. The decision may affect the administration of courts in criminal cases. At issue was whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, 18 U.S.C. 3161(h)(1)(D) (Supp. III 2009), or is instead excluded only if the motion actually causes a postponement, or the expectation of postponement, of the trial.
Jason Louis Tinklenberg was convicted of firearm and drug manufacturing offenses. On August 11, 2006, after several adjournments and pretrial motions, Tinklenberg unsuccessfully moved to dismiss the indictment, arguing that the government violated the Speedy Trial Act by not trying him within seventy days of his indictment or initial appearance. The Sixth Circuit reversed and found that the Speedy Trial Act’s trial deadline included the time during which the district court resolved three pretrial motions because those motions did not delay trial. While the court noted that “[e]very circuit court to have addressed the issue appears to have held that the filing of a pretrial motion stops the Speedy Trial clock, regardless of whether the motion has any impact on the trial’s start date,” 579 F.3d at 598, it nonetheless held that “a pretrial motion must actually cause a delay, or the expectation of a delay, of trial in order to create excludable time.” Id. It found that seventy-three non-excludable days had passed before trial and remanded with instructions to dismiss Tinklenberg’s indictment with prejudice. Id. at 600.
The Speedy Trial Act provides that “the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days.” 18 U.S.C. § 3161(c)(1). However, this time period excludes “delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or prompt disposition of, such motion.” Id. at § 3161(h)(1)(D). The government argued that the plain terms of the statute appear to exclude all time between the filing of and the hearing on a motion without making an inquiry into whether or not a delay actually occurred. See Brief for Petitioner at 17, United States v. Tinklenberg, 131 S. Ct. 62 (2010) (No. 09-1498), 2010 WL 4913555, at *11. The government cited in support Henderson v. United States, 476 U.S. 321 (1986), where the Supreme Court held that pretrial motion time was “automatically excludable,” regardless of whether the delay was “reasonably necessary,” and Bloate v. United States, 130 S. Ct. 1345 (2010), where the court limited the excluded time to the time between filing and disposition. Tinklenberg said the statutory language “indicates a postponement or hindrance concerning when an event can begin,” rather than a mere interval of time. “Resulting from” indicates that the act “excludes periods of delay that occur as a consequence of pretrial motions, not merely the time during which such motions are pending.” Brief for Respondent at 17, United States v. Tinklenberg, 131 S. Ct. 62 (2010) (No. 09-1498), 2011 WL 175872, at *23.
At oral argument, the government argued that the “exclusion applies automatically upon the filing of any motion, regardless of its effect on the trial schedule.” See Transcript of Oral Argument at 3, United States v. Tinklenberg, 131 S. Ct. 62 (2010) (No. 09-1498), available athttp://www.supremecourt.gov/oral_arguments/argument_transcripts/09-1498.pdf. Thus, if a motion is filed fourteen days before trial could begin and takes sixteen days to resolve, trial is postponed only by two days; however, the statute would exclude sixteen days and not merely two. Chief Justice Roberts noted that under the government’s approach, “the time would be excluded even if delay does not result.” Id. at 4. The government countered that delay refers to the time from filing through disposition, and it can “have the meaning of the interval of time between two events.” Id. The government stressed that although judges might take motions into account in setting the trial date, a rule saying that exclusion applies only if the date is moved due to a motion “would lead to arbitrary results.” Id. at 7. The government emphasized the supposed complexity of administering the Sixth Circuit rule. Justice Sotomayor asked whether the government would accept the First Circuit’s “qualification” in United States v. Hood that, “if the government is found to be attempting to frustrate the operation of the Speedy Trial Act, that those motions and delays won’t be counted?” Id. at 9. The government accepted that motions filed solely to extend the deadline and avoid trial would be sanctionable, but “there’s been no evidence over the 30 years that anything like this has been happening.” Id. at 10.
Justice Scalia posited that if the Court ultimately decides the case on the alternative arguments regarding how to count calendar days, “what [the Court says] about the ground for which [it] took the case … would be the purest dictum.” Id. at 13-14. This led to an extensive discussion about Tinklenberg’s alternative arguments. Tinklenberg argued that § 3161(h)(1)(F) permitted exclusion of only “ten days” and that transportation for a mental competency hearing took twenty calendar days; the Sixth Circuit held that weekends and holidays did not count towards the ten day limit. The difference in this calculation would impact the final total of excludable days; under Tinklenberg’s formulation, even if the Court sided with the government on the cert issue, Tinklenberg would win on the merits. Interestingly, Rule 45(a) was amended after the Sixth Circuit’s decision and now provides that all time periods are counted in calendar days (in favor of Tinklenberg). Justice Scalia indicated a preference to not address the issue, because “assuming this person was treated fairly on the basis of the law that existed at the time, the consequence of what Justice Breyer proposes is to set free someone who has been duly convicted of a crime.”
Jeff Fisher’s argument for Tinklenberg began with the procedural issues. He stated that the Court is “not duty-bound” to decide on the alternative arguments raised in briefs, but “under this Court’s precedent, at least, you have never reversed the decision below without reaching them.” Id. at 29-30. Fisher also argued that the calendar day distinction by the Sixth Circuit was incorrect when it was decided, regardless of the subsequent amendments to the rule, and the Court could decide the case solely on the alternative arguments and not reach “delay” issue. On the merits, Fisher emphasized that the language of the statute is “delay resulting from” and “the only meaning of ‘delay’ is a hindrance to progress or a postponement.” Id. at 35-36. Thus, there could be delay simply by moving the trial date to accommodate the motion or by setting the trial date to accommodate anticipated motions. The trial could say on the record when the date is set if the latter situation occurs. Ultimately, “delay means something more than time.” Id. at 39. Justice Breyer noted that “while [Tinklenberg’s] reading might fit the language in ordinary English better,” the problem with Tinklenberg’s argument “is that it seems very unworkable to strike trying to figure out what causes what.” Id. at 43-44. Fisher countered that the government did not show a single dismissal due to the Sixth Circuit’s rule in the courts under its jurisdiction. In response to Fisher’s argument about the impact of administrative motions, Justice Sotomayor, the only Justice who served on the district court level, said a slew of motions always emerged between the pretrial conference and when trial started “because that’s about the time counsel tends to wake up.” Id. at 46-47.
Why does the case matter? The Speedy Trial Act is meant to facilitate the prompt resolution of criminal trials, a benefit to the parties, the court, and the public. The Sixth Circuit unilaterally created a split amongst the circuits; upholding its decision will admittedly uproot practices elsewhere (and the government contended that this will raise significant administrability problems). However, as Tinklenberg and the amicus brief from the National Association of Criminal Defense Lawyers note, judges in the Sixth Circuit have “shown themselves perfectly willing and able to make such prospective determinations.” Brief for Respondent, supra, at 29. Basically, the Court now has a choice between two systems – the known and the new (but potentially correct?). The Court did not clearly indicate which approach it will adopt, though it mainly focused on the administrability issues while discussing the merits. To be sure, it will be interesting to see if the Court ultimately ignores the statutory issue and instead deals with the alternative arguments. I was definitely surprised that the emphasis during the government’s argument was on the latter, which may mean the Court is more inclined to the government’s position (for convenience, if anything). Fisher is correct, however, that Congress should address the ambiguities that are currently inherent in the language, particularly if it ends up disagreeing with the Court’s decision. Even if this does not end up being the most exciting case the Court has this term, it definitely is a fascinating window into the management of federal criminal trials.
Finally, let me wish Mr. Fisher luck; he is arguing another case in this sitting of the Court. A tip of the hat to you, sir.