ALITO, J., DISSENTING
BLOATE V. UNITED STATES
559 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-728
TAYLOR JAMES BLOATE, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the eighth circuit
[March 8, 2010]
Justice Alito, with whom Justice
Breyer joins, dissenting.
The Court’s interpretation of the
Speedy Trial Act of 1974 (Speedy Trial Act or Act) is not supported
by the text or the legislative history of the Act. Under the
Court’s interpretation, petitioner may be entitled to dismissal of
the charges against him because his attorney persuaded a Magistrate
Judge to give the defense additional time to prepare pretrial
motions and thus delayed the commencement of his trial. The Speedy
Trial Act does not require this strange result.
I
A
The Speedy Trial Act generally
requires a federal criminal trial to begin within 70 days after the
defendant is charged or appears in court, but certain pretrial
periods are excluded from the 70-day calculation. See 18 U.
S. C. A. §3161 (2000 ed. and Supp. 2009). The provision
at issue here, §3161(h)(1) (Supp. 2009), automatically excludes
“[a]ny period of delay resulting from other proceedings concerning
the defendant, including but not limited to” eight specific types
of delay that are set out in subparagraphs (A)–(H). Eight Courts of
Appeals have held[
Footnote
1]—and I agree—that a delay resulting from the granting of a
defense request for additional time to complete pretrial motions is
a delay “resulting from [a] proceedin[g] concerning the defendant”
and is thus automatically excluded under §3161(h)(1).
B
In considering the question
presented here, I begin with the general language of §3161(h)(1),
which, as noted, automatically excludes any “delay resulting from
other proceedings concerning the defendant.” (For convenience, I
will refer to this portion of the statute as “subsection (h)(1).”)
The delay resulting from the granting of a defense request for an
extension of time to complete pretrial motions falls comfortably
within the terms of subsection (h)(1).
First, the granting of such a
defense request qualifies as a “proceeding.” A court proceeding is
defined as “[a]n act or step that is part of a larger action” and
“an act done by the authority or direction of the court.” Black’s
Law Dictionary 1324 (9th ed. 2009) (internal quotation marks
omitted) (hereinafter Black’s Law). The granting of a defense
request for an extension of time to prepare pretrial motions
constitutes both “[a]n act or step that is part of [the] larger
[criminal case]” and “an act done by the authority or direction of
the court.” Second, delay caused by the granting of such an
extension is obviously “delay resulting from” the successful
extension request.
C
The Court does not contend that
the granting of a defense request for time to prepare pretrial
motions falls outside the plain meaning of subsection (h)(1), but
the Court holds that §3161(h)(1)(D) (hereinafter subparagraph (D))
narrows the meaning of subsection (h)(1). Subparagraph (D) sets out
one of the eight categories of delay that are specifically
identified as “delay resulting from [a] proceedin[g] concerning the
defendant,” but as noted, this list is preceded by the phrase
“including but not limited to.” “When ‘include’ is utilized, it is
generally improper to conclude that entities not specifically
enumerated are excluded.” 2A N. Singer & J. Singer,
Sutherland on Statutes and Statutory Construction §47.23, p. 417
(7th ed. 2007). See
Campbell v.
Acuff-Rose Music,
Inc.,
510 U. S.
569, 577 (1994);
Herb’s Welding, Inc. v.
Gray,
470
U. S. 414, 423, n. 9 (1985);
Federal Land Bank of St.
Paul v.
Bismarck Lumber Co.,
314 U. S. 95, 100 (1941);
Black’s Law 831 (“The participle
including typically
indicates a partial list”). And the inclusion in subsection (h)(1)
of the additional phrase “not limited to” reinforces this point.
See
United States v.
Tibboel, 753 F. 2d 608, 610
(CA7 1985).
Because subparagraph (D) follows
the phrase “including but not limited to,” the Court has a steep
hurdle to clear to show that this subparagraph narrows the meaning
of the general rule set out in subsection (h)(1). The Court’s
argument is that subparagraph (D) governs not just “delay resulting
from any pretrial motion,” §3161(h)(1)(D), but also delay resulting
from “proceedings
involving pretrial motions,”
ante, at 8, and n. 9 (emphasis added), and “all
pretrial motion-
related delay,”
ante, at 8
(emphasis added). In the Court’s view, Congress has expressed a
judgment that if a period of “pretrial motion-related delay” does
not fall within the express terms of subparagraph (D), then it is
“excludable only when accompanied by district court findings.”
Ante, at 9. Thus, since subparagraph (D) does not provide
for the exclusion of delay resulting from the granting of a defense
request for more time to prepare pretrial motions, the Court holds
that such delay is not excluded from the 70-day calculation. The
Court’s analysis, however, is not supported by either the text of
subparagraph (D) or the circumstances that gave rise to its
enactment.
D
The Court’s argument would have
some force if it were clear that the delay involved in the present
case is “delay resulting from [a] pretrial motion.” §3161(h)(1)(D).
It could then be argued that subparagraph (D) reflects a
legislative decision to provide for the automatic exclusion of
delay resulting from a pretrial motion only if that delay occurs
during the period “from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of, such
motion.”
Ibid.[Footnote
2]
It is at least doubtful,
however, that the delay at issue in the present case is delay
“resulting from [a] pretrial motion.” Ibid.[Footnote 3] The phrase “resulting from” means
“proceed[ing], spring[ing], or aris[ing] as a consequence, effect,
or conclusion.” Webster’s Third New International Dictionary 1937
(1971). Thus, delay “resulting from” a pretrial motion is delay
that occurs as a consequence of such a motion. The type of delay
involved in the present case, however, does not occur as a
consequence of a pretrial motion; rather, it occurs as a
consequence of the court’s granting of a defense request for an
extension of time. The particular facts of this case sharply
illustrate this point because petitioner never filed pretrial
motions.[
Footnote 4]
It is telling that the Court elides the
statutory phrase “resulting from” and substitutes a broader phrase
of its own invention. The Court writes that “pretrial
motion-related delay” that is not captured by subparagraph (D)’s
text is “excludable only when accompanied by district court
findings.”
Ante, at 9. See also
ante, at 8
(“Subparagraph (D) does not subject all pretrial motion-related
delay to automatic exclusion”);
ante, at 9 (“[O]nly
pretrial motion-related delay ‘from the filing’ of a motion to the
hearing or disposition point specified in the provision is
automatically excludable”);
ante, at 15, n. 14
(“pretrial motion-related delay”);
ibid. (“pretrial
motion-related proceedings”). But “pretrial motion-related delay”
is not necessarily delay “resulting from” a pretrial motion.
Even if it is possible to read the statutory
phrase “resulting from” to mean “related [to],” see
ante,
at 9, there are at least two good reasons for rejecting that
reading. First, because subparagraphs (A)–(H) are meant to be
illustrative, those provisions should not be interpreted as
limiting unless the limitation is very clear. Second, the Court’s
interpretation of subparagraph (D) leads to an anomalous result
that Congress is unlikely to have intended. Because subparagraph
(D) automatically excludes “delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion,” it is
clear that subparagraph (D) automatically excludes delay resulting
from the granting of
a prosecution request for additional
time to respond to a defendant’s pretrial motions. The Court has
not identified any reason why Congress might have wanted to provide
an automatic exclusion for delay resulting from the granting of a
prosecution request for additional time to respond to a defendant’s
pretrial motions but not for delay resulting from the granting of
the defendant’s request for additional time to prepare those very
motions. Since there is nothing to suggest that Congress intended
such a strange, asymmetrical result, the Court’s strained
interpretation of subparagraph (D) should be rejected. Subparagraph
(D) should be read to apply only to delay “resulting from [a]
pretrial motion,” and because the delay involved here does not
result from a pretrial motion, there is no basis for inferring that
subparagraph (D) was meant to take that delay outside the scope of
the general language of subsection (h)(1).
E
The circumstances surrounding the
adoption of the current version of subparagraph (D) in 1979 point
to the same conclusion. That language was adopted to
expand the reach of the exclusion. As originally enacted,
the relevant provision of the Act excluded only “delay resulting
from hearings on pretrial motions,” 88 Stat. 2078, and courts had
interpreted this language literally to exclude only time actually
devoted to hearings. See,
e.g.,
United States v.
Lewis, 425 F. Supp. 1166, 1171 (Conn. 1977);
United States v.
Conroy, No. 77 Cr. 607 (CHT),
1978 U. S. Dist. LEXIS 19296, *4 (SDNY, Mar. 1, 1978); accord,
United States v.
Simms, 508 F. Supp. 1175,
1177–1178 (WD La. 1979). The House Judiciary Committee stated that
the language on which the Court now relies was added “to avoid an
unduly restrictive interpretation of the exclusion as extending
only to the actual time consumed in a pretrial hearing.” H. R. Rep.
No. 96–390, p. 10 (1979). Similarly, the Senate Judiciary Committee
expressed frustration with what it described as the courts’
“unnecessarily inflexible” interpretation of the Act. S. Rep. No.
96–212, p. 18 (1979) (hereinafter S. Rep.). See also
id., at 26. Congress’ expansion of the exclusion set out
in subparagraph (D) so that it covers, not just the time taken up
by hearings on pretrial motions, but all delay resulting from
pretrial motions does not support the inference that Congress
wanted the type of delay at issue in this case to count against the
Speedy Trial Act’s 70-day period.
Contending that Congress could
have been more explicit if it “wished courts to exclude pretrial
motion preparation time automatically,” the Court cites as an
example a legislative proposal by the Department of Justice to
provide for an express exclusion of preparation time for pretrial
motions.
Ante, at 14, n. 13. The Court is correct
that Congress did not choose this option, but the Court’s argument
misses the point.
First, it bears emphasizing that the Justice
Department’s proposal did not simply exclude delay caused by a
successful defense request for additional time to prepare pretrial
motions. That is the delay in dispute here. Instead, the Justice
Department’s proposal excluded all “delay resulting from the
preparation and service of pretrial motions and responses from
hearings thereon.” S. 961, 96th Cong., 1st Sess., §5 (1979) (as
introduced).
Second, the reasons given in the Senate
Judiciary Committee report for rejecting the Justice Department
proposal do not apply when the delay results from the granting of a
defense request such as the one at issue here. The Senate Committee
report noted that, when excluding time for the preparation of
pretrial motions, it will be “quite difficult to determine a point
at which preparation actually begins.” S. Rep., at 34. But when a
district court grants a defendant’s motion for time to prepare
pretrial motions, that concern is not present. See
United
States v.
Oberoi, 547 F. 3d 436, 451 (CA2 2008)
(noting the importance of the District Court’s expressly stopping
the speedy trial clock to create a point from which to measure
preparation time).[
Footnote 5]
In addition, the Committee expressed the view that “in routine
cases, preparation time should not be excluded.” S. Rep., at
34. However, cases in which a district court accedes to a defense
request for more than the usual amount of time for the completion
of pretrial motions are by definition not routine.
Third, there is no reason why Congress should
have supposed that the language that Congress and the President
enacted did not reach delay resulting from the granting of the
defendant’s request for additional time to prepare pretrial
motions. As explained above,
supra, at 2, 4–6, such delay
results from a proceeding concerning the defendant and is not delay
resulting from a pretrial motion.
In sum, (1) delay resulting from the granting
of a defense motion for an extension of time to file pretrial
motions falls within the general rule, set out in subsection
(h)(1), that automatically excludes delay “resulting from [a]
proceedin[g] concerning the defendant;” (2) the subparagraphs that
follow, which are preceded by the phrase “including but not limited
to,” are illustrative, not exhaustive; and (3) neither the text of
subparagraph (D) nor the circumstances surrounding its adoption
clearly reflect an intent to narrow the scope of the general rule
set out in subsection (h)(1). For these reasons, I would hold that
the delay in question here is automatically excluded.
II
The Court advances several
additional arguments in support of its analysis, but none is
persuasive.
A
Two of these arguments hinge on
the Court’s unjustifiably broad interpretation of subparagraph (D),
i.e., that it covers all “pretrial motion-related delay.”
First, the Court reasons that under a contrary interpretation, “a
court could extend by weeks or months, without any finding that the
incursion on the Act’s timeliness guarantee is justified, the
entire portion of a criminal proceeding for which the Act sets a
default limit of 70 days.”
Ante, at 13. But the same is
true of the Court’s interpretation. Even under an interpretation
that automatically excludes delay “
only from the time a
motion is filed through the hearing or disposition point,”
ante, at 9, there appears to be no reason why a district
court may not, in its discretion, extend the automatically
excludable period of time under subparagraph (D) through any number
of means, including: (1) extending the time to file an opposition
brief, see Tr. of Oral Arg. 4; (2) extending the time to file a
reply brief, see
United States v.
Latham, No.
82–CR–890, 1983 U. S. Dist. LEXIS 14219, *1–*3 (ND Ill., Aug. 30,
1983); (3) allowing pre-hearing supplemental briefing, see
United States v.
Faison, No. 06–4332, 2007 U. S.
App. LEXIS 23298, *6–*9 (CA4, Oct. 4, 2007); (4) deferring the
hearing on a pretrial motion, see
United States v.
Riley, 991 F. 2d 120, 124 (CA4 1993); (5) conducting
multiple hearings on the motion or motions,
e.g.,
United States v.
Boone, Crim. No. 00–3, 2002 WL
31761364, *20, n. 12 (D NJ, Dec. 6, 2002); or (6) allowing the
filing of post hearing submissions, see
Henderson v.
United States,
476 U. S. 321, 324
(1986). Indeed, in
Henderson we held that 295 days of
delay resulting from the filing of a pretrial motion were
automatically excludable, and we noted that “Congress was aware of
the breadth of the exclusion it was enacting.”
Id., at
327.[
Footnote 6] The Court’s
suggestion that its interpretation is necessary to protect the
Act’s “timeliness guarantee,”
ante, at 13, is
illusory.
For a similar reason, the Court’s
interpretation is not supported by the rule of construction that
“ ‘[a] specific provision’ … ‘controls one[s] of more general
application.’ ”
Ante, at 10. This rule applies only
when specific and general statutory provisions conflict.
National Cable & Telecommunications Assn., Inc. v.
Gulf Power Co.,
534 U. S. 327, 335–336
(2002). Here, there is no conflict because, even if subparagraph
(D) governs “delay resulting from any pretrial motion,” there is no
basis for concluding that subparagraph (D) governs all “pretrial
motion-related delay.”
B
Contrary to the Court’s claim,
its decision is not supported by §3161(h)(7)(A), which excludes
“delay resulting from a continuance” provided that the trial court
“sets forth, in the record of the case, … its reasons for finding
that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a
speedy trial.” One might argue that a trial judge grants a
“continuance” whenever the judge postpones a trial date, even when
the postponement is the direct result of a proceeding that falls
squarely within the language of subsection (h)(1) or one of the
specific illustrative subparagraphs that follow. See §3161(h)(7)(A)
(“[a]ny period of delay resulting from a continuance”). But such a
reading would render subsection (h)(1) and subparagraphs (A)–(H)
meaningless if it were true that all continuances required
ends-of-justice findings. The plain terms of subsection (h)(1)
refute this interpretation and show that Congress intended for some
periods of delay that postpone the trial date to be automatically
excludable.
Viewed in their proper context,
subsection (h)(1) and its subparagraphs carve out exceptions to the
general rule of §3161(h)(7)(A) requiring ends-of-justice findings
for continuances. See,
e.g.,
United States v.
Aviles-Alvarez, 868 F. 2d 1108, 1112 (CA9 1989)
(noting that when pretrial motion delay is automatically excluded,
the District Court “does not have to make findings or consider any
factors”). A period of delay resulting from a continuance requires
ends-of-justice findings only when it does not also fall within the
subset of automatically excludable delay defined by subsection
(h)(1). When a period of delay resulting from a continuance does
qualify for automatic exclusion, a court ordinarily should give
effect to the more specific provisions of subsection (h)(1). See
Gozlon-Peretz v.
United States,
498 U. S. 395, 407
(1991) (“A specific provision controls over one of more general
application”). Cf.
ante, at 10.
For the reasons discussed, see
supra,
at 2, the granting of a defense request for an extension of time to
complete pretrial motions is a “proceedin[g] concerning the
defendant” within the meaning of subsection (h)(1). It may also
qualify as a “continuance” within the meaning of §3161(h)(7)(A) if
the delay has the effect of pushing back the trial date. But a
court should resolve the conflict by applying the more specific
provision of subsection (h)(1). This result is faithful not only to
the plain language of the statute, but to its overall structure of
providing a class of exceptions to the general rule that
continuances require ends-of-justice findings. And it also
recognizes that when defense counsel argues that adequate pretrial
motions cannot be completed within the time allotted and is granted
an extension, it will generally go without saying that the judge
has considered whether the ends of justice will be served by the
extension, and requiring the judge to recite this determination on
the record will often be an empty exercise.
III
The Court does not believe that
its interpretation will have serious adverse consequences because
trial judges, by making the on-the-record findings required under
§3161(h)(7), may exclude delay resulting from the granting of a
defense request for an extension to file pretrial motions. As this
case illustrates, however, there will be cases in which busy
district judges and magistrate judges will fail to make those
findings, and indictments will be dismissed for no good reason. If
requiring findings on the record were cost- and risk-free, Congress
would not have provided for the automatic exclusion of the broad
category of delay encompassed by §3161(h)(1).
The Court notes that, when a
Speedy Trial Act violation occurs because of delay caused by an
extension requested by the defense, a district court may dismiss
the indictment without prejudice. But as we have recognized, even
when a new indictment may be obtained, “substantial delay may well
make reprosecution . . . unlikely.”
United States v.
Taylor,
487
U. S. 326, 342 (1988). Dismissal without prejudice is “not a
toothless sanction,”
ibid., and it is particularly
inappropriate when brought about by a criminal defendant’s own
delay.
IV
For these reasons, I would hold
that the delay at issue in this case is automatically excluded for
Speedy Trial Act purposes, and I would therefore affirm the
decision of the Court of Appeals.
Footnote 1
United States v.
Oberoi,
547 F. 3d 436, 448–451 (CA2 2008); 534 F. 3d 893, 897–898
(CA8 2008) (case below);
United States v.
Mejia,
82 F. 3d 1032, 1035–1036 (CA11 1996);
United States v.
Lewis, 980 F. 2d 555, 564 (CA9 1992);
United
States v.
Mobile Materials, Inc., 871 F. 2d 902,
912–915
(per curiam), opinion supplemented on other
grounds on rehearing, 881 F. 2d 866 (CA10 1989)
(per
curiam); United States v.
Wilson, 835 F. 2d
1440, 1444–1445 (CADC 1987);
United States v.
Tibboel, 753 F. 2d 608, 610 (CA7 1985);
United
States v.
Jodoin, 672 F. 2d 232, 237–239 (CA1
1982).
Footnote 2
The Court hints that the defense’s request
for additional time might itself be a pretrial motion within the
meaning of §3161(h)(1)(D). Neither party relies on this theory. The
Court of Appeals found that “Bloate never filed a pretrial motion.”
534 F. 3d, at 897.
Footnote 3
This much is clear from the Court’s own
language. The Court writes that “although the period of delay the
Government seeks to exclude in this case
results from a
proceeding governed by subparagraph (D), that period precedes
the first day upon which Congress specified that
such
delay may be automatically excluded.”
Ante, at 9–10
(emphasis added). Subparagraph (D) does not speak of delay that
results from a “proceeding,”
ibid.
; subsection
(h)(1), however, does. See §3161(h)(1).
Footnote 4
But even if petitioner had filed pretrial
motions, the delay resulting from the granting of the extension
still would not be delay “resulting from” the motion.
Footnote 5
The Court incorrectly states that the Courts
of Appeals that have read subsection (h)(1) to exclude preparation
time for pretrial motions have found it necessary to “impos[e]
extratextual limitations on excludability,” namely, that the trial
judge must expressly grant an extension of the time for the
completion of pretrial motions. See
ante, at 16. This
requirement, however, springs from the language of subsection
(h)(1), for it is the granting of the extension request that
constitutes the “proceedin[g] concerning the defendant” that
triggers the exclusion under subsection (h)(1). See
supra,
at 2.
Footnote 6
That the delay in
Henderson was
delay “resulting from [a] pretrial motion,” §3161(h)(1)(D); see 476
U. S., at 322, 330–331, distinguishes that case from the scenario
here, where no pretrial motion has been filed and the delay in
question “results from a proceeding” that, in the Court’s view, is
“governed by subparagraph (D).”
Ante, at 9–10. Cf.
ante, at 15, n. 14.
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