United States v. Shellef
718 F.3d 94
2d Cir.2013Background
- Defendant Dov Shellef was retried after a mandate remanded the case for severance; initial conviction included tax fraud and related offenses.
- The mandate issuing March 4, 2008, is treated as the starting point for Speedy Trial Act time calculations for retrial.
- Following remand, the case was reassigned multiple times among judges, and the government sought retrial in early 2009 with complex severance and indictment questions.
- April 10, 2008 conference acknowledged case complexity but did not plainly grant a 70-day exclusion; substantive exclusions were later argued and litigated.
- Judge Platt implicitly found an exclusion under § 3161(h)(7) based on complexity, and the case was eventually reassigned to Judge Bianco for retrial.
- Judge Bianco ultimately extended retrial time to 180 days under § 3161(e) and found retrial commenced within that period, after excluding periods of delay.
- Trial resumed on December 14, 2009, with guilty verdicts returned on January 27, 2010; formal judgment entered February 28, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §3161(e) extensions may be granted after the initial 70 days | Shellef: extensions must occur within 70 days | Bianco: extensions may be granted post-70 days if factors arose before within 70 days | Yes; extensions may be granted after 70 days if factors arose within the initial period |
| Whether the factors relied on by Bianco were properly attributable to the passage of time | Shellef: factors did not result from passage of time | Bianco: factors reflected changes after remand affecting practicality | Factors properly attributed to passage of time and supported extension |
| Whether pretrial motion exclusions were properly applied to toll the clock | Shellef: some automatic exclusions do not apply to speedy-trial motions | Go to Bolden and New Buffalo distinctions; pretrial motion exclusions apply | Bolden controls; pretrial motion delay automatically excluded; May 19 government motion also excluded |
| Whether the government’s May 19, 2008 motion to set trial dates triggered automatic exclusion | Shellef: may be mere scheduling; not a pretrial motion | Gov’t: it sought a legal determination affecting retrial | The motion triggered automatic exclusion as a pretrial motion |
Key Cases Cited
- Bolden v. United States, 700 F.2d 102 (2d Cir.1983) (automatic exclusion for pretrial motion delay applies to speedy-trial motions)
- New Buffalo Amusement Corp. v. United States, 600 F.2d 368 (2d Cir.1979) (plans may treat exclusions differently from the Act itself)
- Tunnessen v. United States, 763 F.2d 74 (2d Cir.1985) (ends-of-justice continuances must be prospective)
- Kelly v. United States, 45 F.3d 45 (2d Cir.1995) (purpose of the Act; speedy-trial protections and ends-of-justice analysis)
- Ginyard v. United States, 572 F. Supp. 2d 30 (D.D.C.2008) (district court discretion in §3161(e) extensions after initial period)
- Holley v. United States, 986 F.2d 100 (5th Cir.1993) (case-by-case inquiry on factors resulting from passage of time)
- Goetz v. United States, 826 F.2d 1025 (11th Cir.1987) (timing of extension discussions under §3161(e))
- Cuellar v. United States, 553 U.S. 550 (2008) (government burden of proof changes post-remand affecting retrial timing)