Federal Speedy Trial Act: When Does the Clock Start?

A person charged with a federal crime has important rights concerning unnecessary delay in a criminal prosecution. But determining when the federal speedy trial clock begins to run is not always as simple as counting days from the first contact with federal law enforcement.

The Speedy Trial Act, 18 U.S.C. § 3161, establishes deadlines governing federal criminal prosecutions. A separate right to a speedy trial is protected by the Sixth Amendment to the United States Constitution.

Understanding when these protections begin, which periods of delay are excluded and what happens when the government violates the applicable deadline can be critical in a federal criminal case.

The Federal Speedy Trial Act

The Speedy Trial Act establishes two particularly important deadlines.

Under 18 U.S.C. § 3161(b), the government generally must file an indictment or information within 30 days after a federal arrest or service of a summons in connection with the charges.

After an indictment or information is filed, a separate trial clock applies.

Under 18 U.S.C. § 3161(c)(1), a defendant who enters a plea of not guilty generally must be brought to trial within 70 days from the later of:

The filing and public disclosure of the indictment or information, or the defendant’s first appearance before a judicial officer of the court where the charge is pending.

The calculation, however, does not end there.

Not Every Day Counts Toward the 70 Day Deadline

The Speedy Trial Act contains numerous exclusions that can stop the clock.

Under 18 U.S.C. § 3161(h), certain periods of delay are excluded when calculating the time within which trial must begin.

Depending on the circumstances, excluded time can include delays associated with pretrial motions, competency proceedings, interlocutory appeals, proceedings involving other charges and certain continuances granted by the court.

As a result, simply counting 70 calendar days from an indictment or initial appearance will often produce the wrong answer.

A proper Speedy Trial Act calculation requires examining the complete docket and determining which periods count and which periods are excluded.

Does a Federal Complaint Start the Speedy Trial Clock?

A federal criminal complaint does not necessarily trigger the same Speedy Trial Act deadline that applies after an indictment or information.

This issue was addressed by the Seventh Circuit in United States v. Richardson, 780 F.3d 812 (7th Cir. 2015).

Richardson was being prosecuted by state authorities when federal authorities filed a criminal complaint, affidavit of probable cause and detainer based on conduct that could also support federal firearms charges.

Richardson argued that these federal actions started his federal speedy trial clock.

The Seventh Circuit rejected that argument under the circumstances of the case.

The court explained that a felony criminal complaint is not equivalent to an indictment or information. A complaint can establish probable cause and support an arrest warrant, but a felony prosecution ordinarily proceeds through an indictment or information.

Does a Federal Detainer Start the Clock?

A federal detainer lodged against someone already in state custody also does not necessarily begin the federal speedy trial period.

In Richardson, the Seventh Circuit explained that a detainer generally serves to notify the institution holding the defendant that another law enforcement agency wants to be notified before the defendant is released.

Richardson remained in state custody while his state prosecution proceeded. The federal government later executed its arrest warrant after the state proceedings were completed.

The Seventh Circuit concluded that the earlier combination of the federal complaint, probable cause affidavit and detainer did not start the federal prosecution for purposes of Richardson’s speedy trial claim.

State and Federal Prosecutions Are Separate

Speedy trial questions can become particularly complicated when the same conduct attracts the attention of both state and federal authorities.

An arrest by state authorities does not automatically constitute a federal arrest for purposes of the federal Speedy Trial Act.

A defendant may therefore be held on state charges while federal authorities investigate related federal offenses without necessarily starting the federal statutory clock.

The particular facts matter. The nature of the custody, the actions taken by federal authorities and the procedural history should be examined carefully before determining when a federal speedy trial period began.

The Sixth Amendment Is a Separate Protection

The statutory Speedy Trial Act should not be confused with the Sixth Amendment right to a speedy trial.

The two protections are related but legally distinct.

A defendant may raise a constitutional speedy trial claim even when the statutory Speedy Trial Act calculation does not independently require dismissal.

Constitutional speedy trial analysis considers factors that include the length of the delay, the reason for the delay, whether the defendant asserted the speedy trial right, and prejudice to the defendant.

This distinction can become particularly important when substantial delay occurs before the statutory 70-day trial clock begins.

What Happens If the Speedy Trial Act Is Violated?

A violation of the Speedy Trial Act can have serious consequences.

Under 18 U.S.C. § 3162, failure to indict within the applicable statutory period or failure to bring a defendant to trial within the applicable period can result in dismissal of the affected charge or indictment.

But dismissal does not automatically mean that the prosecution is permanently over.

Depending upon the circumstances, dismissal may be with prejudice or without prejudice. If the dismissal is without prejudice, the government may be able to prosecute the defendant again.

For that reason, identifying a Speedy Trial Act violation is only part of the analysis. The circumstances surrounding the delay and the appropriate remedy must also be considered.

Calculating the Federal Speedy Trial Clock

Speedy Trial Act calculations can become complicated quickly.

A federal criminal docket may contain motions, continuances, competency proceedings, codefendant proceedings and other events that affect the calculation.

The correct analysis therefore requires more than looking at the indictment date and counting forward 70 days.

Defense counsel should identify the date on which the applicable clock began, determine every potentially excluded period and calculate the remaining nonexcluded days.

If the government has exceeded the statutory deadline, counsel must determine whether to file a motion to dismiss and what remedy is available.

Contact Federal Criminal Defense Attorney Michael J. Petro

Delay in a federal prosecution should not simply be assumed to be permissible. The Speedy Trial Act and the Sixth Amendment provide important protections against unjustified delay.

Michael J. Petro represents individuals facing federal criminal investigations and prosecutions and, when appropriate, evaluates Speedy Trial Act issues as part of the defense.

If your federal prosecution has been delayed or you believe the government has exceeded the Speedy Trial Act deadline, call federal criminal defense attorney Michael J. Petro to discuss your speedy trial rights.