United States v. Michael Napadow, No. 09-1920 (7th Cir. 02/23/2010)

 

The district court denied Michael Napadow’s motion to dismiss the indictment for lack of a speedy trial. Mr. Napadow now seeks review of that decision. Because we conclude that the district court was correct, we affirm the judgment.

 

We review de novo a denial of a motion to dismiss under the Speedy Trial Act when the calculation of time is at issue. See United States v. Rollins, 544 F.3d 820, 828-29 (7th Cir. 2008).

 

The Speedy Trial Act mandates that criminal trials shall be commenced within 70 days of the issuance of an indictment or a defendant's first appearance before a judicial officer, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If the defendant is not brought to trial within 70 days, "the information or indictment shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2). Dismissal may be with or without prejudice. Id.; see also United States v. Taylor, 487 U.S. 326, 336-37, 342-43 (1988).

 

To provide the necessary flexibility to accommodate pretrial proceedings that result in justifiable delay, the Act excludes from the 70-day clock certain periods of time. See 18 U.S.C. § 3161(h)(1)-(8). Two particular exclusions are relevant to this case: the pretrial motion exclusion, see id. § 3161(h)(1)(D), and the ends-of-justice exclusion, see id. § 3161(h)(7)(A).

 

A. 

 

The parties agree that the speedy trial clock began to run on May 6, 2008, when Mr. Napadow first appeared before the district court. See 18 U.S.C. § 3161(c)(1). Between May 6 and August 19, the first day of trial when Mr. Napadow moved to dismiss the indictment, 105 days elapsed. Thus, the central inquiry is how many days were excludable from those 105 days.

 

The pretrial motion exclusion applies whenever a pretrial motion is filed and, with certain exceptions not applicable here, excludes the entire period of time from filing to the disposition of such motion. See Henderson v. United States, 476 U.S. 321, 330-31 (1986); United States v. Pansier, 576 F.3d 726, 731-32 (7th Cir. 2009). Additionally, we have held that the time needed to prepare pretrial motions is excludable. See United States v. Montoya, 827 F.2d 143, 153 (7th Cir. 1987) ("[T]ime consumed in the preparation of a pretrial motion must be excluded- provided that the judge has expressly granted a party time for that purpose. Even when motions are not actually filed in the allotted time, the amount of time granted by the district judge for their preparation and submission is excludable."

 

The parties also agree that 21 days were excludable between May 6 and May 27 because, at the request of the defense, the district court excluded that period to afford the parties adequate time to prepare pretrial motions. See Montoya, 827 F.2d at 153 (describing the pretrial motion preparation exclusion). However, Mr. Napadow contends that, because no motions were actually filed on May 27, the 14 days between that date and the next conference on June 10 were improperly excluded.

 

We conclude that the entire period from May 6 to June 10, totaling 35 days, is excludable under the pretrial motion exclusion. See 18 U.S.C. § 3161(h)(1)(D). As we have noted, Mr. Napadow readily concedes that the period of time leading up to the May 27 filing deadline was excludable because of his representation to the district court that he intended to file pretrial motions during that period. See Montoya, 827 F.2d at 153  "The provisions of the Act are designed to exclude all time that is consumed in placing the trial court in a position to dispose of a motion."  See Henderson, 476 U.S. at 331.  Cf. United States v. Baskin-Bey, 45 F.3d 200, 204 (7th Cir. 1995).

 

B. 

 

The ends-of-justice provision excludes "[a]ny period of delay resulting from a continuance… if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A). "Among the factors that a district court must consider in deciding whether to grant an ends-of-justice continuance are a defendant's need for 'reasonable time to obtain counsel,' 'continuity of counsel,' and 'effective preparation' of counsel." § 3161(h)(8)(B)(iv), now codified as § 3161(h)(7)(B)(iv)).

 

No time shall be excluded pursuant to the ends-of-justice provision "unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding" that the ends-of-justice provision applies. See 18 U.S.C. § (h)(7)(A). "A straightforward reading of these provisions leads to the conclusion that if a judge fails to make the requisite findings regarding the need for an ends-of-justice continuance, the delay resulting from the continuance must be counted." Zedner, 547 U.S. 489, 508. However, the district court need not explain its findings contemporaneously with its decision to exclude time. "[A]t the very least… [the] findings must be put on the record by the time the district court rules on… [the] motion to dismiss." See Zedner, 547 U.S. at 506-07; see also United States v. Rollins, 544 F.3d 820, 830 (7th Cir. 2008); United States v. Larson, 417 F.3d 741, 746 (7th Cir. 2005); United States v. Turner, 203 F.3d 1010, 1017 (7th Cir. 2000).

 

When the district court makes its findings, the Speedy Trial Act does not require the court "to cite… sections [of the Act] or to track the statutory language in a lengthy legal opinion," but rather to make findings "sufficiently specific to justify a continuance and comport with the purposes of the Act." United States v. Jean, 25 F.3d 588, 594 (7th Cir. 1994) (internal quotation marks and citations omitted). "The requirement that the district court make clear on the record its reasons for granting an ends-of-justice continuance serves two core purposes. It both ensures the district court considers the relevant factors and provides this court with an adequate record to review." United States v. Toombs, 574 F.3d 1262, 1269 (10th Cir. 2009) (internal citations omitted).

 

We conclude that the 69 days, from June 10 to August 18, were excludable pursuant to the Act's ends-of-justice exclusion. The district court excluded this period of time in the minute entry issued on June 10. Later, the district court explained that it had excluded that time "[p]robably because of continuity of counsel" and "nobody was available earlier than that" and, finally, "[t]his was probably the first date that the lawyers were available." Tr. at 4-5, July 29, 2008.

 

Counsel told the district court that more time was needed to prepare for trial, and, on that representation, the court granted the continuance. This sequence of events, followed by the court's later explanation, sufficiently identified the applicable continuity of counsel factor under the ends-of-justice exclusion. See Jean, 25 F.3d at 594. When " 'facts have been presented to the court and the court has acted on them, it is not necessary to articulate those same facts in a continuance order.' " Id. (quoting United States v. Wiehoff, 748 F.2d 1158, 1160 (7th Cir. 1984)).

 

This sequence of events makes it clear that the district court accepted counsel's representation that more time was needed and, consequently, granted the continuance.  We do note, however, that the minute entries, by themselves, are clearly unsatisfactory explanations of the district court's ends-of-justice determinations. As we have just observed, we need not rely on them for resolution of this appeal. Nevertheless, we note that such pro forma statements, standing alone, would not comply adequately with the statute.

 

AFFIRMED

 

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