PETER NOONE, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6417

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. B) is reported at
913 F.2d 20.  The opinion of the district court (Pet. App. A) is not
reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 6,
1990.  The petition for a writ of certiorari was filed on December 3,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the period between petitioner's psychiatric examination and
the district court's determination of competency was properly excluded
from the 70-day period for commencing trial under the Speedy Trial Act
of 1974, 18 U.S.C. 3161 et seq.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of Massachusetts, petitioner was convicted of conspiracy
maliciously to damage or destroy property used in interstate commerce
(Count 3), in violation of 18 U.S.C. 371, and malicious damaging of
such property (Count 4), in violation of 18 U.S.C. 844(i).  He was
sentenced to concurrent terms of two and one-half years' imprisonment
on each count.  The court of appeals affirmed.  Pet. App. B (913 F.2d
20).  /1/

   1. Petitioner's brother, Kevin, had a longstanding dispute with the
owner of the Plaza Auto Clinic in Chicopee, Massachusetts.  Plaza Auto
Clinic is in the business of buying and selling cars interstate.  To
avenge the dispute, on April 20, 1987, Kevin, petitioner, and several
accomplices built and planted an explosive bomb beneath a 1972
Mercedes Benz in the Auto Clinic parking lot.  The bomb detonated and
damaged a commercial building and five cars.  Both before and after
the bombing, petitioner made threatening calls to the Auto Clinic.
913 F.2d at 23;  Gov't C.A. Br. 7-19.

   2. Petitioner was indicted on February 17, 1988.  He remained a
fugitive until he was arrested in New York on June 16, 1988.  He first
appeared on the indictment in the District of Massachusetts on July 1,
1988, at which time the government moved for pretrial detention.
Despite instructions to obtain counsel, petitioner appeared in court
on both July 6 and July 13 without counsel.  At the second hearing,
the government filed a motion for a psychiatric examination and for a
determination of petitioner's competency to stand trial.  On July 29,
the magistrate ordered petitioner to undergo a psychiatric evaluation
at the Federal Correctional Institution at Butner, North Carolina,
both to determine criminal responsibility and competency to stand
trial.  Petitioner arrived at Butner on September 8, but owing to his
lack of cooperation, the examination period was extended first to
October 23 and then to November 22.  The magistrate received the
examination report on December 19.  Although the record does not
disclose when petitioner left Butner, /2/ he was present at a bail
review hearing in Massachusetts on January 6, 1989.  At that hearing,
the magistrate ruled him competent to stand trial, and defense counsel
moved to withdraw because of petitioner's lack of cooperation.  That
motion was granted, and over the next two months, petitioner failed to
obtain new counsel, despite the magistrate's order that he do so.  On
March 6, 1989, after the magistrate appointed a federal defender to
represent petitioner, he was finally arraigned on the indictment.  913
F.2d at 23-24;  Gov't C.A. Br. 2-5.

   Subsequently, petitioner filed a motion to dismiss the indictment
alleging a violation of the Speedy Trial Act, 18 U.S.C. 3161 et seq.
He specifically contested the excludability of the delay between the
government's motion for a determination of competency and the
magistrate's finding that petitioner was competent.  The district
court denied petitioner's motion.  The court held that the 70-day
period for commencing trial did not begin to run until March 7, 1989,
when the magistrate appointed a federal defender to represent
petitioner and petitioner entered his not guilty plea:
"(petitioner's) adamant refusal to retain counsel, his resistance to
the appointment of counsel, his efforts to have a non-lawyer represent
him, and his unwillingness to enter a plea have all directly or
indirectly encouraged delay about which the defendant cannot now
complain." Pet. App. A9.  Accordingly, the district court did not
count any of the delay attributable to petitioner's competency
examination toward the 70-day period.  Pet. App. A3-A9.

   3. The court of appeals affirmed.  The court held that the period
between the filing of the motion for a determination of competency
(July 1, 1988) and the magistrate's order of commitment for
examination (July 29, 1988) was excludable under the pretrial motion
provisions of the Speedy Trial Act, 18 U.S.C. 3161(h)(1)(F) and (J).
913 F.2d at 25.  The court next held that 30 of the 40 days that
elapsed between the magistrate's order and petitioner's arrival at
Butner must be counted toward the 70-day period because Section
3161(h)(1)(H) limits the exclusion for transportation to and from the
place of examination to 10 days, unless the government can explain why
additional time for transportation was needed.  Because no explanation
was proffered here, only 10 days were subject to exclusion.  913 F.2d
at 25-26.  On the other hand, the court held that the entire period
during which petitioner was at Butner for psychiatric examination was
excludable under Section 3161(h)(1)(A).  The court rejected
petitioner's argument that psychiatric examinations must be completed
within 45 days.  The court observed that 18 U.S.C. 4242 allows a
30-day extension of the examination for good cause, and that the
magistrate properly extended the examination period here.  913 F.2d at
26.  Moreover, the period between the completion of the examination
and the magistrate's receipt of the examination report was also
excludable under Section 3161(h)(1)(A), which "at a minimum, excludes
a reasonable period pending delivery of the report to the court." 913
F.2d at 27.  Under the same subsection of the Act, the period between
receipt of the report and the January 6, 1989, hearing was also
excludable.  Ibid.  Accordingly, the court found that because only 30
non-excludable days elapsed during the pre-arraignment period and only
25 non-excludable days elapsed thereafter, the 70-day limit of the Act
was not exceeded.  913 F.2d at 28.

                               ARGUMENT

   Petitioner contends that the court of appeals improperly excluded
from its Speedy Trial Act calculations the 27-day period between the
end of petitioner's psychiatric examination (November 22, 1988) and
the magistrate's receipt of the examination report (December 19,
1988).  The court of appeals' decision, however, is correct and does
not conflict with any decision of this Court or another court of
appeals.

   Petitioner does not dispute that the period between the termination
of a psychiatric examination and the preparation and mailing of the
report is normally excluded from speedy trial calculations under
Section 3161(h)(1)(A), which broadly excludes any period of "delay
resulting from any proceeding, including any examinations, to
determine mental competency or physical capacity of the defendant." 18
U.S.C. 3161(h)(1)(A).  See Pet. 7-8.  See United States v. Vasquez,
918 F.2d 329, 333 (2d Cir. 1990) (excluding delay through the
competency hearing);  United States v. Jones, 801 F.2d 304, 316 (8th
Cir. 1986) (same);  United States v. Howell, 719 F.2d 1258, 1261 (5th
Cir. 1983) (excluding delay through the filing of the psychiatric
evaluation report), cert. denied, 467 U.S. 1228 (1984).  Petitioner
nevertheless argues that the exclusion should be disallowed in this
case because he was not promptly returned from the Butner correctional
facility to Massachusetts when the examination was finished.  Pet.
6-8.

   There is no basis in the Speedy Trial Act for withholding the
exclusion on that ground.  Even if petitioner was illegally confined
at Butner, his only remedy was release.  The Speedy Trial Act does not
require dismissal for excessive detention in a psychiatric
institution.  See United States v. Theron, 782 F.2d 1510, 1515 (10th
Cir. 1986) (Speedy Trial Act remedy for excessive pretrial detention
is release);  United States v. Diaz-Alvarado, 587 F.2d 1002, 1004 (9th
Cir. 1978) (no dismissal sanction for excessive pretrial detention),
cert. denied, 440 U.S. 927 (1979).  Cf. United States v.
Montalvo-Murillo, 110 S.Ct. 2072, 2077 (1990) ("There is no
presumption or general rule that for every duty imposed upon the court
or the government and its prosecutors there must exist some corollary
punitive sanction for departures or omissions, even if negligent.").

   Nor is there merit to petitioner's suggestion that the examination
report would have been completed more promptly if he had been sent
back to Massachusetts sooner.  There is nothing in the record that
supports this speculation, and indeed, it is unlikely that the
examining physician's ability to complete the report was in any way
delayed by petitioner's continued presence at Butner.  In any event,
Section 3161(h)(1)(A) does not contain a "reasonableness" limitation,
but instead excludes without qualification "any period of delay"
resulting from "any proceeding" to determine mental competency.
United States v. Vasquez, supra.  Cf. Henderson v. United States, 476
U.S. 321, 326-330 (1986) (pretrial motion exclusion is not limited to
delay that is "reasonably necessary").  In short, the decision below
comports with the plain language of the Speedy Trial Act and does not
conflict with a decision from any other circuit.  Accordingly, there
is no warrant for further review of petitioner's statutory speedy
trial claim.  /3/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   PATTY MERKAMP STEMLER

      Attorney

   FEBRUARY 1991

   /1/ Petition Appendix B, which consists of a copy of the reported
court of appeals' decision, is not separately paginated.  For
convenience, we hereafter will cite the reported court of appeals'
decision.

   /2/ Petitioner states in his petition (Pet. 6, n.2) that he left
Butner on December 28, 1988.  The actual date of his departure does
not alter the speedy trial analysis, as both courts below found.

   /3/ Alternatively, the district court properly held that none of
the time preceding petitioner's arraignment in March 1989 counted
toward the 70-day limit for commencing trial.  Although the 70-day
period usually starts with a defendant's first appearance in the
charging district, see 18 U.S.C. 3161(c)(1), petitioner's lack of
cooperation in securing counsel caused his arraignment to be postponed
for eight months.  The government could not go forward with the
prosecution until petitioner entered his plea of not guilty.  Where a
defendant engages in dilatory tactics to delay trial, he cannot
contest the excludability of the elapsed time.  See United States v.
Pringle, 751 F.2d 419, 434 (1st Cir. 1984), on appeal from remand, 780
F.2d 143 (1985), vacated on other grounds, 479 U.S. 805 (1986);  see
also United States v. Kington, 875 F.2d 1091, 1108 (5th Cir. 1989).