United States v. O'Connor, 2011 U.S. App. LEXIS 18189

Background

O'Connor was indicted July 25, 2005, with codefendants for mortgage/wire fraud and false loan applications; trial delayed for years due to codefendant pleas and complex discovery; 1,229-day delay before trial; the district court excluded most of that time under Speedy Trial Act provisions; the only pre-trial motion challenged was a September 4, 2008 exclusion; trial began January 5, 2009 with a single wire-fraud count after codefendants pled guilty.
O'Connor was convicted by a jury of one count of wire fraud and sentenced to 50 months’ imprisonment; the Government’s evidence showed a two-year mortgage-fraud scheme masterminded by Shaun Cross, involving straw buyers and kickbacks to O'Connor.
O'Connor argued the 1,229-day delay violated the Speedy Trial Act and Sixth Amendment, challenged several continuances, and attacked jury instructions, sufficiency of the evidence, and indictment form.
The Seventh Circuit affirmed, holding that most exclusions were proper or harmless, the one 42-day error did not push the delay beyond 70 days, and the other challenged issues were either waived or failed on the merits.
The court also clarified that under Bloate and Zedner, certain pretrial-motion delays and ends-of-justice findings must be recorded, but recognized that some delays (like an unavailable essential witness) do not require ends-of-justice findings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the challenged continuances were preserved for review	O'Connor moved to dismiss only the September 4, 2008 exclusion.	Preservation rules allow some unraised challenges to be reviewed as plain error; many continuances were properly supported.	No reversible error; most continuances either were properly supported or waived.
Whether the August 22, 2005 and September 2, 2005 exclusions were proper	Bloate requires explicit findings for ends-of-justice exclusions; 42-day error appeared.	Record showed ends-of-justice rationale supported by discovery needs; two continuances within limit.	Generally proper; 11-day August exclusion was error but did not defeat the 70-day limit.
Whether the May 19, 2008 to September 22, 2008 delay was proper given calendar congestion	Congestion cannot be excluded under § 3161(h)(7) as general calendar congestion.	Most of the delay was due to counsel calendars and discovery; properly excluded.	42 days improperly excluded; remainder properly excluded; total still under 70 days.
Whether the September 4, 2008 exclusion was proper under the unavailable-witness provision	The ruling could be retroactively justified as ends-of-justice after the motion to dismiss.	The reason was unavailability of an essential witness due to illness; exclusion automatic under § 3161(h)(3).	No error; the exclusion was valid under § 3161(h)(3); any ends-of-justice rationale was unnecessary.
Whether the 1,229-day delay violated the Sixth Amendment speedy-trial right	Delay was uncommonly long and prejudicial.	Delay was largely attributable to O'Connor herself; no prejudice shown.	No Sixth Amendment violation.

Key Cases Cited

Zedner v. United States, 547 U.S. 489 (U.S. 2006) (record must reflect ends-of-justice findings by the time ruling on dismissal)
Bloate v. United States, 130 S. Ct. 1345 (S. Ct. 2010) (ends-of-justice findings require case-specific justifications)
United States v. Tibboel, 753 F.2d 608 (7th Cir. 1985) (pretrial-motions delays historically excluded under § 3161(h)(1)(D))
Napadow, 596 F.3d 398 (7th Cir. 2010) (requires sufficiently specific findings to justify continuances)
United States v. Adams, 625 F.3d 371 (7th Cir. 2010) (Speedy Trial Act requires record of reasons for ends-of-justice continuances)
United States v. Townsend, 419 F.3d 663 (7th Cir. 2005) (application of Bloate to pending direct-review cases)
United States v. Janik, 723 F.2d 537 (7th Cir. 1983) (retroactive justification concerns on dismissal motions)
United States v. Gearhart, 576 F.3d 459 (7th Cir. 2009) (Sixth Amendment speedy-trial analysis)
United States v. Cross, 273 Fed.Appx. 557 (7th Cir. 2008) (reference to co-defendant sentence; not controlling)