*1 FOR REHEARING PETITION SUR spe- phrase, in that contained terms can- “operations,” “covered” cifically Jan. it. Our resort without defined not be appel- rehearing for petition history leads legislative examination having been case the above entitled in lants cessation that substantial conclude in us participated who judges to the submitted the com- meets activity other business to all normal court and of this decision in standard. the circuit judges of plete withdrawal circuit available who service, and no active regular which courts those join We also having asked decision concurred in which work type of have focused the circuit majority of rehearing, and engaged normally employer —its ser- regular active the circuit judges was clear it Where operations. true rehearing by the having voted vice not business its normal ceased employer had rehearing banc, petition down, a shut preparation operations Alito Nygaard, Greenberg, Judges denied. perfor- held that have courts these rehearing. Roth would incidental tasks non-operational mance not facility does closing of ato total complete finding that the court’s prevent Thus, we find occurred.11 has withdrawal matter aas not err did the district America, Appellee, STATES had UNITED withdrawal complete finding law purposes. for DEFRA v. occurred LATTANY, Appellant. David
Scott No. 91-1826. IV. Appeals, conclude We Third Circuit. exempt from Cork finding Crown err in 12(6) Rule Circuit Third Under Submitted complied it liability because withdrawal 17, 1992. Aug. affirm we will Accordingly, DEFRA. 29, 1992. Dec. Decided court. the decision Rehearing Petition Sur Judge, SLOVITER, Chief Present: 26, 1993. Jan. MANSMANN, STAPLETON,
BECKER, SCIRICA, HUTCHINSON, GREENBERG, ROTH, ALITO, NYGAARD, COWEN, Judges. GARTH,* Circuit
LEWIS gave to contributions activity rise Co., business See, Chevrolet e.g., Speckman v. Barford activity); F.H. i.e., plan, construction (a complete to the (E.D.Mo.1982) F.Supp. 488 Teamsters State York v. New Cobb Co. Confer employer re- even can occur withdrawal Fund, F.Supp. & Retirement Pension ence to terminate payroll employees on its tains business, (where employer retained (N.D.N.Y.1984) termi- dealership had a car thus ranging in number employees, group of a small preclo- employees from but all nated representing between to sixteen from nine employer in to assist force sure work work preclosure company’s percent 5-9 automobile employer's up winding the dealership equipment, em inventory and to move force remaining em- whose business operations under ceased covered ployer had selling had com- cars engaged in ployee was not Retirement MPPAA). National ILGWU Accord withdrawn); Pension Workers Textile pletely Inc., Fashions, 94-Cir. No. Weatherall Fund Co., Finishing Dye & Fund v. Standard (S.D.N.Y.1986). slip op. 1986 W.L. (employer was not (S.D.N.Y.1985) F.Supp. F.Supp. Leishman, Combs But see even assessments pay obligated withdrawal not with (employer had (D.C.Dist.Col.1988) of three crew skeleton though it maintained winding drawn, operations were although its up disman- work and aid in employees to clean mining activities down, it maintained where plant contri- and made dye tling and textile aof normal substantially than different at levels employees); Connors of these on behalf butions periods). work F.Supp. 849 Bldg. Systems, 651 Economy v. (D.D.C.1986) * only as to Judge voted Garth Circuit employer Senior (court determined rehearing. panel "the ceased completely withdrawn when *2 in con- some included motions insanity a defense nection exams *3 psychiatric and to assert
wanted requests for thereto, as as well related changes in occasioned continuances continuance’s including earlier counsel, an standby counsel give extension final case himself to familiarize him- represent Lattany’s request after last exten- This granted. se was pro self still earlier and the sion period. open-ended outstanding were for contemporaneous- not court did con- of its support findings its ly record continu- open-ended either this clusion to serve extension, needed was ance, itsor continu- Unless justice. the ends PA, for Philadelphia, Booker, P. Timothy persis- and properly its extension and ance appellant. which days within seventy tently tolled S. Atty., Walter Baylson, U.S. M. Michael to be defendant requires criminal the Act Ap- Atty., Chief Jr., Asst. U.S. Batty, vacat- must be tried, Lattany’s convictions Atty., Carr, Jr., Asst. U.S. B. peals, William ed. PA, appellee. Philadelphia, already decided has This Court HUTCHINSON, and COWEN Before form the facts require Act does Judges. WEIS, Circuit justice continuance an ends the basis days seventy within recorded to be THE COURT OF OPINION to com requires trial the Act during which Judge. HUTCHINSON, Circuit within court states mence, long as the so (Latta- Lattany David Scott Appellant, contin for the statutory basis that time action criminal in a judgment ny), appeals authorizes Act Whether uance. District in the United question open-ended convicting Pennsylvania District Eastern con After this Court. impression first and one robbery of bank two counts him of contin it, hold sidering we robbery viola- attempted bank count are not justice ends uances serve (West Supp. 2113(a) 18 U.S.C.A. tion length. reasonable they are prohibited his con- Lattany us reverse 1992). asks us, hold that also before record On the indictment dismiss the and viction discre abuse court did is that contention principal His prejudice. con concluding that tion (the Act under rights the interest necessary in was tinuance (West 3161-3174 “Act”), 18 U.S.C.A. §§ and extension that both and violated because were Supp.1992), &1985 circumstances. reasonable indictment. days trial occurred Speedy Trial no Therefore, was there August arraigned on Lattany was violation. trial, scheduled originally His pro se supplemental Lattany has filed several continued October other several listed he also in which brief a succession request of at the times this Court. properly issues begin until did not lawyers violation the asserted addition Lattany was aware 29, 1991. coun- appellate Act, Lattany’s on his pretrial motions intervening issues. other various raised sel has seeking continuanc- behalf, including those There- merit. lack all issues other These any of them. objection no es, made delays and pretrial discussion without reject them fore, we time. On up to that Lattany’s convictions.1 affirm will se time, filed, first for the I. for viola- indictment dismiss the n Act. tion of indicted July robbery attempted bank charged with mo- pretrial filed numerous parties Both 2113(a).2 On U.S.C.A. of 18 in violation requests for contin- tions, including three arraigned he was August filed with that were uances guilty. His plea of not entered pro- During these knowledge.3 *4 Septem- 9, 1989. On for October scheduled to attorneys attempted several ceedings, was indictment 7, 1989, superseding a ber of Ultimately, each Lattany. represent Lattany charging additionally returned represen- accept to either unable them was occurring robberies string four of a with con- because of to had withdraw tation or of six weeks blocks and two within interest, problems, or scheduling flict of September robbery. On attempted earlier Lattany on defense agree with inability to on the arraigned Lattany was strategy. pleas entered indictment superseding Lattany’s mo- denied The district court guilty. of not remaining pre- and all other dismiss tion to sought and 1990, Lattany On hearings pretrial motions after se pro proceed permission was on began Trial January began on stand-by appointed of the assistance with the return days after January December Finally, on counsel. trial, Latta- At original indictment. to set court district asked himself, with the assistance ny represented a set response, date. a trial stand-by counsel. of and, in an date of two Lattany on jury The convicted in stated order dated of robbery one count of bank counts all the of justification in full reasons sheet; court abused and whether pro Lattany se are raises issues 1.The other hearing request a denying for his discretion its discretion abused court district whether the entering prior juror coercion hearing the issue issue request a on the denying his judgment jury’s verdict. entering judgment on the prior to juror coercion verdict; jury panel was jury’s whether the unconstitutionally composed; selected appeal a Lattany filed on this 2. Counsel denying his erred in district court whether Appendix” "Appellant’s by accompanied an brief psy- to hire pretrial authorization Lattany filed paginated. ("App.”) which was the dis- psychiatrists; whether chologists and accompanied brief which se ruling on his improperly deferred trict ("Supp. Se Appendix” Pro "Supplemental Se Pro prior evidence limine exclude motion in convictions; nor of contents containing a table App.”) neither erred in district whether provided addi- government has pagination. The Lattany to to escort allowing marshals armed Ap- "Supplemental Pro Se copies of that tional room; district court whether the jury panel of contents table containing added pendix” denying request to his discretion abused its filed government has also pagination. The cross-examination; during approach witnesses Appendix” Supplemental "Government’s support evidence is sufficient whether there ("Govt.Supp.App.”). verdict; government im- jury’s whether testify; his failure properly commented Didier, 542 upon United States relies permitting erred in whether Cir.1976), arguing he (2d could F.2d 1182 bank sur- during to view jury deliberations he since agreed these continuances not have videotaped testimo- witness films and veillance copies the motions provided with was not shown at had not been purportedly ny which videotape attorneys. pretrial The by his trial; abused its district court whether though however, record, Latta- that even shows interrupt- "repeatedly ‘‘rushing’’or discretion ing" copies of actually may received ny not have closing Lattany during statement. his motions, his case’s informed he such are: wheth- Lattany’s counsel raises issues other was aware process and step in the at each status injustice occurred when er manifest they were motions substance suffering while proceed to trial had only record videotape record is filed. illness; process due whether major mental respect to this available made into evi- the admission rights violated proceedings. spread photo suggestive unduly dence of II. robbery in violation attempted bank February 2113(a) on U.S.C.A. subject mat § denied 6,1991, the August 18 U.S.C.A. jurisdiction § under ter judgment motions post-trial Lattany’s jurisdic 1985). appellate We have (West alternative, a new or, in the acquittal (West Supp. U.S.C.A. under 28 § tion in- arguments, trial, upon various based appellate scope 1992). set out We Act. Speedy cluding violation decision court’s over review F.Supp. opinion, accompanying In an in United 3161(h)(8)continuance court addressed 181, the district Company, Rivera Construction should the indictment argument Cir.1988): (3d F.2d 293 Act: dismissed a continu- review of The standard coming to trial delayed This case 3161(h)(8)of ance difficulty Lat- time because some upon what depends Trial Act at- attorneys who tany had analysis in the district step told, All him. represent tempted to review Where we reviewing. *5 stand-by counsel [Smith] counting of the stat- interpretation court’s district trial and assisted present at who was therefore, and, ute, of law question it is a repre- trial, Lattany was Lattany at If the district review. plenary subject attorneys from indictment by six sented issue, at conclusions are factual Lattany claims conviction. ap- is standard clearly erroneous a a violation trying his delay case in district Finally, when the propriate. following theAs Speedy Trial Act. proper a grants a continuance shows, delays chronology of events statute established of the application entirely attribut- occur which did stan- facts, of discretion then an abuse of his de- management Lattany’s able applied. is dard fense. omitted). There- (citations 295 n. 3 Id. at vii-2, 3.4 at App. over the review fore, plenary we exercise September Act and construction district court’s prison in months to 210 sentenced If the excludable time. provisions He supervised release. years of three ap- properly construed Septem- appeal on timely notice of filed a that are findings of Act to fact plied the ber 1991. decide, erroneous, un- must clearly case, whether of this circumstances der the contend Lattany and counsel Both permitting re- its discretion elapsed between the abused days that run Decem- until July original turn of the indictment trial fixing firm jury 1990 without empaneling of ber 1991 violated date. contends that Act. The III. occa- case was delay in this substantial Act “Congress enacted that tolled pretrial motions by sioned either Amendment the Sixth effect give by Act or contin- set the time limit setting specified speedy right to to serve required that were uances arraignment indictment or limits after needed defendant justice because ends com- trials criminal must which adequate within prepare develop and time to 5 Rivera, (quot- 863 F.2d menced.” defense. provides: “In all crimi- Amendment rely part The Sixth appeared enjoy the responsible the accused shall prosecutions, upon nal the fact trial____” indicates, public U.S. attorney The record right turnover. his however, attorneys Const, only protections one of the Act VI. The amend. inability him. Amendment, to work with withdrew which Sixth those of the exceed accept repre- or withdrew refused The others scheduling problems or because of sentation 12 and note See also conflicts of interest. accompanying infra p. text at war- exclusive circumstances vides nine Cong., 2d Sess. 93d H.R.Rep. No. ing exclusion, including: ranting Cong. 1974 U.S.Code (1974), reprinted 7402). (1) delay resulting from Any period & Admin.News requires: concerning defen- proceedings other guilty dant, including limited to— plea of but not any case which a defendant entered, trial of indictment or an information charged in resulting any pre- (F) delay from an offense shall the commission motion, filing days from seventy within commence the conclusion through (and public) making filing date on, prompt disposition hearing or other indictment, or from or information motion; of, such appeared has date the defendant in which such of the court judicial officer resulting (8)(A) Any date last pending, whichever charge is granted by from continuance occurs.... re- or at the on his own motion added). 3161(c)(1)(emphasis 18 U.S.C.A. § his counsel or defendant or quest “pe certain provides section That attorney for the request of the at the ... excluded delay shall be riods of Government, granted such if the judge the trial the time within computing findings on the basis 3161(h). The Id. must commence.” ... by taking ends served that the seventy- computing the starting point interest of outweigh the best such action *6 1989, 18, August case is day limit this speedy in a the defendant public the arraignment before day after the delay resulting trial. such No v. States See United judicial officer. a the granted by a continuance from (2d Cir.) 1105, 1108 1n. Anderson, F.2d 902 para- with this in accordance in calculat not included (day of indictment this under be excludable graph shall must be which defendant ing time within forth, court sets unless the subsection 867, denied, trial), 498 U.S. brought cert. to case, orally either the in the record of (1990); 182, 146 112 L.Ed.2d 111 S.Ct. finding writing, its reasons inor 208, Richmond, F.2d 735 v. by the served ends the Cir.1984) (because indictment was (6th 211 outweigh such continuance granting of appeár first to defendant’s prior returned the public and interests the best arraignment, judicial officer ance trial. in a defendant day from began to run includable time (emphasis add- 3161(h)(1)(F),(h)(8)(A) Id. §§ seventy- and, calculating arraignment ed). excluded); limit, arraignment day of day under of time excluding period a Before v. Virgin Islands see also Government of pursuant justice” continuance an “ends (3d n. 8 Cir. Duberry, 923 must consider (h)(8)(A), district court to triggering 1991) (excluding days on which determining whether factors certain occurred). events in- granted, be should such a continuance within not commence does If the trial cluding: extended time within seventy days, or a such (i) the failure Whether and allowable period allowed be proceeding would in the information 3161(h), or indictment § pro- of such a continuation likely to make of the defen- on motion must be dismissed in a miscar- result or impossible, ceeding prejudice. dant, or without justice. (h) riage pro- 3162(a)(2). Subsection U.S.C.A. § Amendment violation. directly assert Sixth a a within require that trial commence does not brief, Sixth he lists a Brooks, supplemental se In specified United States time. be- the issues one of violation as Cir.1982) (citing (3d Amendment Barker n. 3 however, Court; not he does address fore this 33 L.Ed.2d Wingo, 92 S.Ct. 407 U.S. Therefore, we will body brief. of his denied, in the (1972)), U.S. S.Ct. cert. 101 1531, appeal. issue on this the constitutional (1983). Lattany consider does not 75 L.Ed.2d filing of by the caused delays Both soor unusual is so case (ii) Whether delays caused motions pretrial defendants, number due complex, exten- exis- or prosecution, nature excludable properly be must sion law, that or of fact questions of novel tence Act are requirements prep- adequate expect unreasonable it is met. or proceedings pretrial aration established limits time within itself Motions Pretrial A. by this section. provides 3161(h)(1)(F) Section motion, from its any pretrial resulting from grant such the failure (iv) is excluded Whether disposition, through filing which, as taken ain case 18 U.S.C.A. limit. from complex or so whole, so unusual 3161(h)(1)(F). deny (ii), clause to fall within arraigned Lattany was When obtain time reasonable defendant filed August deny the de- unreasonably counsel, would detention; dis seeking pretrial continuity of Government or fendant August detention trict for the deny counsel, or would August Therefore, time Gov- attorney for or the defendant excluded properly August through necessary the reasonable ernment seventy- (h)(1)(F).6 The subsection into ac- taking preparation, effective run began clock day speedy diligence. due exercise count scheduled The trial August Id, (iv). (ii), 8161(h)(8)(B)©, and the October repre Esquire Joseph, W. Ben appointed motions case, number September Lattany. On sent trigger subsection could returned indictment superseding addition, the (h)(1)(F). four string of Lattany with charging six-week two occurring within *7 robberies at additional justice” of “ends open-ended attempt earlier the of weeks and six blocks validi- counsel. of defense request the 1989, 14, Latta September robbery. On on ed depends two ty these indict superseding the arraigned on ny was the extension does (h)(8)(A)as subsection By guilty. of not pleas entered and at ment granted the against run had time, twenty-two days appointed this newly Lattany’s request the limit seventy-day Act’s Trial Speedy the the dis- immediately standby counsel arraign and indictment days Lattany’s since favorably ruled court trict 3161(h)(1).7 under § are excluded ment se. proceed request (11th 795, Cir. Yunis, 797 F.2d 723 States pretrial de defendant's regarding the v. 6. Motions 3161(h)(1)(F). 1984); § U.S.C.A. see 18 motions” "pretrial bond and tention from excludable thus purposes and speedy trial sup charges are filed subsequent When 7. v. States United See speedy trial calculation. of charge the same plemental indictment 706, (D.Mass.1990); Bellucci, F.Supp. 708-09 737 required or original indictment as the fense 220, Savoca, 739 case, v. States therewith, also United see this as in joined to be filing Cir.1984) ("time period from (6th original 223 with period commences speedy trial of bond reduction charges filing motion a new subsequent defendant’s [aof filing. If the through hearing] joined an oral request to be offense clearly subsequent filing excluda hearing is charges, ... original conclusion pe new, on other 3161(h)(1)(F)"), independent vacated commences ble Ramos, F.Supp. Cir.), 292, (6th de 588 cert. v. States 294 United See grounds, 761 F.2d riod. (citing United 153, (S.D.N.Y.1984) 1223, 126 852, 88 L.Ed.2d nied, 1226-27 106 S.Ct. U.S. 474 Cir.1972), (7th 791, Tienne, 151 468 F.2d Severdija, De 723 v. v. States (1985); States United 974, 911, 35 S.Ct. 93 denied, 410 U.S. bond Cir.1984) (motion falls to reduce cert. (11th 793 Kripple (1973); States United calculating includable L.Ed.2d (h)(1)(F)). within time, United (E.D.Pa.1978); bauer, F.Supp. 291 or occurs event on which the date both (E.D.Pa. Panetta, F.Supp. 114 the date and is filed a motion 1985). (2d Cir. 1977)), aff'd, 779 F.2d are excluded. a motion disposes a six week continu- granted and motion superseding on the arraignment During the 11, ance, date of December setting a trial to withdraw Joseph indictment, moved Mr. 1989, 23, order, a conflict dated October 1989. This counsel because Act Speedy Trial preprinted appears on interest. Associ- Defender six- and states appointed delay form order (DAP) represent Philadelphia necessary in order was ation week continuance Claire assigned the case to Lattany. DAP and to miscarriage of prevent a Rauscher, Esquire. citing support justice, J. ends of serve the 3161(h)(8)(B)(i).9 ad- Act § 1989, trial date 21, September On dition, the defendant notes that the order 9 to October changed from October We hold the continuance. 25, requested had September clerk.8 On grant- the six weeks’ extension that for an moved Rauscher Ms. procedural compliance with in full motions. On ed Sep- to file time Act and Speedy Trial requirements for extension the motion tember gave to by a accompanied the reasons granted, time was Therefore, proper. order. delay form it are valid justify Act pretrial mo- time October period time between extended proper- and also properly exclud- 1989 is until October December tions through September time, clock still stood ly During excluded ed. from September days. forty-four (h)(1)(F). to subsection pursuant time 8, 1989, Ms. Rauscher November days of non-excluda- Therefore, thirty-two Joyce case to transferred withdrew September elapsed as had time ble psychologist Webb-Eubanks, A Esquire. 1989. 5, 1989and Lattany on December examined moved Rauscher Ms. On October of insani- a notice Ms. Webb-Eubanks a psychia- to hire authorization Latta- defense on ty Lattany. examine psychologist to or trist provided report was expert’s ny’s day on the next This motion In the government on subsection Also October 30, 1989, dis- meantime, were excluded (h)(1)(F), October con- granted its court had trict therefore, thir- computation; the time tinuance, stating on a days of nonexcludable ty-seven the ends to serve needed that was form 5, 1989. elapsed as of October justice. *8 1989, 13, Ms. Rauscher On October 18, 1990, the November while April On of the a six-week moved for still' was 30, open-ended 1989 date, had scheduled been a motion extant, government filed per 1989; requested 23, she also October of evidence to exclude limine Ms. of time. motions out to file mission disorder gambling compulsive claimed she motion that in her stated Rauscher insanity or of basis delays because sought the continuance 1990, 5, Lat- September On defect. mental discovery from receiving requested n authoriza- motion a second tany filed had not she and because psychiatrist. or psychologist to hire a tion While for trial. prepare adequate time en- 1990, 24, district October On subsec pending, motion was pretrial this stating: an order tered clock speedy trial stopped (h)(1)(F) tion 1990, October, day now, 24th 1989, this 20, And October days. On forty-four Mo- Defendant’s upon consideration Ms. on Rauscher’s ruled provides that the (h)(8)(B)(i) Subsection court was involved of the 8. No failure to whether the consider should docketing merely a It was this continuance. a continu- likely to make therefore, clerk; did not it change impossible, or result proceeding such ation of seventy-day period. running of the stop the justice. 18 U.S.C.A. miscarriage 3161(h)(8)(B)(i). 874 Open-Ended The Continuance B. Psychia- to Hire for Authorization tion the Gov- and Psychologists, and trists open- of the propriety validity and The on this Limine Motion in ernment’s 30, November granted ended is motion that said issue, it is ORDERED 21, pres- extension May DENIED. questions. Since resolu- ent troublesome Appendix Pro Se Supplemental
Appellant’s Act issue Lattany’s Speedy Trial tion of add- (emphasis 122a App.) at (Supp. Pro Se resolution, they become their depends on ed).10 analysis. of our focus the main impose a (h)(1)(F) does Subsection delay due on limitation reasonableness v. Unit Henderson See motions. pretrial 1871, S.Ct. States, 476 U.S. ed Ms. Rauscher On November (“The plain (1986) L.Ed.2d him, because Lattany and advised wrote to all appear to exclude statute of the terms schedule, was she trans- heavy her hearing of and the filing between defender, public another ferring the case to hearing was motion whether aon No- Joyce Attorney Webb-Eubanks. see, not.”); e.g., United or prompt 8, 1989, sent Webb-Eubanks Ms. vember (5th Cir. 1315-16 Gonzales, change advising of this letter to at showing that defendant 1990) (absent postponement requested a hearings to obtain unsuccessfully tempted She date. 1989 trial December hearings were or that pretrial motions her problems with having she stated to evade intent deliberately refused more time needed schedule own days Act, delay over Speedy Trial the number for trial prepare fully pretrial motions resulting from witnesses, robberies, legal issues bank seventy-day period excludable insanity of an involved, possibility and the 1029, 111 S.Ct. denied, 498 U.S. Act), cert. court docketed defense. (1991). 112 L.Ed.2d as a 28,1989, treated it November letter on time related excluded properly November it on motions. pretrial filing of above preprinted order, on a appearing 1989. The incident to delays exclusion pursu- delay form order motions, however, cannot these 3161(h)(8), stated U.S.C.A. ant to 18 unless Lattany’s convictions save prevent necessary to a continuance the ends serve miscarriage and to later and its justice” continuance “ends of this continu- It stated justice. also stop the extension request of Latta- at the ance was clock. Act’s ticking to state: “Coun- and went ny’s counsel circumstances Therefore, turn is when this case inform the sel shall rulings. these attendant language court used clearly tressed ambiguous. It does order 10. This open- justifying the April mo- government’s dispose of the *9 granted in been that had ended otherwise does not The record tion in limine. 12, stated: order The December disposed of this case. ever the district court show that 1990, 24, precluded as 1991, on October day ”[T]he be- January prior to motion preferred de- law the defendant’s interprets matter of began. The fore disorder)[.]’’ (a gambling purported Lattany’s to fense only motion denying this order as peri- The time App. 124a-125a. Supp. Se at Pro asserts psychologists and and psychiatrists hire April motion was during which the to od outstanding April motion government’s that covered the time falls within gambling re- compulsive evidence exclude its subse- and open-ended January outstanding until mained erred court the district Unless quent extension. do proceedings on The not, ex- and open-ended continuance granting the April however, government’s mention it, no resulting it is of Therefore, from cluding the outstanding. as still motion ultimately court consequence when construed could be the October limine if April 18 motion disposed of the regarding Lattany's motion dispose of both to open-ended continuance government’s and the psychiatric evaluation proper. is but- construction This April 18 motion. behalf, on based his withdrew anee defense trial[,]” thus ready for at- Lattany’s “fourth” interest. conflict continuance. “open-ended” counsel by an- Rauscher, replaced Ms. torney, Appendix Supplemental Government heavy of her attorney because DAP other informed never Webb-Eubanks Ms. 14a. attorney, Ms. “fifth” Lattany’s workload. trial. ready for she was that court irrec- Webb-Eubanks, because withdrew the extension up to leading events Lattany regard- with differences oncilable are similar. Lattany’s defense. of his ing the conduct of the district clerk May On ap- Smith, was then Mr. attorney, “sixth” set a June sponte sua court only stand- as acted ultimately but pointed, Ms. Webb-Eubanks May date. him- Lattany represented while by counsel Lattany’s as to withdraw a motion during trial.13 self differ- upon irreconcilable based counsel opinion Nevertheless, strategy.11 concerning defense ences Lattany’s dismissing 5, August dated motion that hearing on held a court it consid- that indicates motions post-trial Ms. hearing, 21, 1990. At May responsible for Lattany personally ered irrecon- that explained Webb-Eubanks supra note attorneys. See turnover Latta- regarding existed difference cilable on Mr. relied Apparently, Lattany told strategy. defense ny’s during the the court statements Smith’s lawyers five already had he had that why Lat- hearing explaining 21, 1990 May asked the and him representing Mr. times. five counsel changed tany The court another. still appoint speak- statements made those Smith adjourned Ms. Webb-Eubank’s prior to immediately ing with Gregory arrival hearing until standby counsel as appointment attorney Smith, Esquire, an relying justified think the Mr. Lattany. Smith represent contacted them. one approximately Lattany for with met follow- hearing, the hearing At this and, when hours a half colloquy ing ensued: Lat- that resumed, advised Smith your upon right, based All himself. Smith COURT: THE represent tany wished knowingly have you I think Lattany’s sixth answers be he would stated right your waived voluntarily unique Lattany’s attorney, represent you permit I will with counsel. problems conflict spawned “has Smith, you do Mr. yourself. attorneys,” and the other stand-by as appointed being objection Govt. himself. representing capable counsel? at 14a. Supp.App. Honor, we None, your MR. SMITH: representa- Attorney Smith’s Although anoth- communicating well with accurate, wholly been may not have tions him. with I can work er, think I dissatisfac- Lattany’s indicates record you appoint Okay, I’ll COURT: THE contribute did tion stand-by counsel. Only one in counsel. changes very much. you Thank SMITH: MR. representation withdrew attorneys you contact And Lattany.12 COURT: THE inability to work can, you as soon Attorney ap- the US. two were attorneys, Lattany’s “six” Of know us let my accept but by the court office pointed you, trial —not go to ready to you’d are undiscer- reasons appointments trial, togo ready bewill client your Lattany’s “third” record. *10 nible right? all appear- enter attorney, the first nothing record this in is likewise only 13.There sought withdrawal motion 11. way improperly any in Smith that Mr. asked indicate but Ms. Webb-Eubanks behalf of intentionally court, or inadver- either behalf misled as counsel withdraw leave to tently. office. entire DAP 4. supra note See 12. commence, will. trial of these offenses must I think that will be—I
MR. SMITH:
3161(h);
18 U.S.C. §
waiting
long
THE
He’s been
COURT:
(b)
by
the ends of
served
get
now,
I’d like to
this case
outweigh
the best inter-
tried.
public
ests of the
and the defendant
Very well.
MR. SMITH:
trial,
3161(h)(8)(A);
§
The district court
Govt.Supp.App. at 11a.
(c)
particularly
light of the facts
Lattany’s request
proceed
(i)
repre-
the defendant intends to
counsel,
se,
ex-
appointed standby
himself, (ii)
incarcerated,
sent
tended the
24, 1990,
(iii) the Court on October
court made no further
continuance. The
precluded as a matter of law the defen-
provided
Speedy Trial Act statement and
(a
preferred
purported
defense
dant’s
giv-
justification beyond that
no additional
disorder),
gambling
continuance of this
30, en at the time of the November
specified
case to the date
above is nec-
origi-
the court had
open-ended continuance
essary
permit
preparation
effective
nally granted at Ms.
re-
Webb-Eubanks’
preclude miscarriage
for trial and
Webb-Eubanks,
quest. Like Ms.
Mr.
3161(h)(8)(B)(i)
(iv).
justice,
&
the court that
Smith never notified
Supp.
App. at
Pro Se
124a-125a.
or-
proceed
ready to
with the case.14
supplemented
der
the district court’s earli-
12, 1990,
response
to a
On December
findings
by specifically
er
and orders
ex-
date,
government motion
set a trial
cluding
elapsed
January
all time
January
district court set
trial for
necessary
permit
prep-
1991 as
effective
1991.15 The district
preclude
aration for trial and to
a miscar-
part:
1990 order stated in relevant
riage
justice, pursuant
to 18 U.S.C.A.
There have
numerous contin-
been
(B)(iv)
3161(h)(8)(A),(B)(i)and
and stated
in this case
uances of the trial date
since
specific
required
reasons that it felt
superseding
the return of the
indictment
Thus,
earlier
continuances.
7, 1989,
(1)
by:
September
occasioned
text of the December
1990 order sets
of new counsel for the
the substitution
specific findings
forth
which demonstrate
defendant, (2) requests for continuances
trial had
counsel,
(3)
by defense
a lack of
been caused
the substitution of new
by the
certification to the Court
defen-
counsel,
requests
defense
any
dant or
of his counsel that he is
adequately
for continuances
order to
ready for trial.
prepare, well as the failure of the defen-
finds,
supplement
as a
4. The Court
any
certify
dant or
of his counsel to
their
findings
to earlier
and orders with re-
trial.
readiness for
spect
to excludable time
to the
Act,
that:
(a)the
(h)(8)(A)
period
delay
until
Subsection
states that
trial date shall
scheduled
be excluded
is excluded
computing
grants
the time within
a continuance because the ends of
protection
public
14. Our review of the record convinces us that
as well as the defen-
Lattany desired all the continuances that
Recording
for a continuance
dant.
reason
granted.
circumstance informs our
That
deci-
long
gives
appear-
often
after it is
courts, however,
sion. We caution district
against
post
induced
ance of
hoc rationalization
practice
entering open-ended
con-
preserve a deserved conviction that oth-
wish to
them,
tinuances, no matter who asks for
bright-line
afoul of the Act’s
rule.
erwise falls
strongly
grant-
recommend
that the reasons for
continuance,
including
ing any
continuances,
ends-of-justice
government’s
stated that "[t]he
15. The
at the time the
be recorded
con-
inquire
of Mr.
has continued
granted.
tinuance is
A district court's reliance
ready
can be
for trial”
Smith when Mr.
they
parties
ready
on the
to advise it when
agreed Lattany
Mr. Smith had
could be
and that
trial,
here,
can
as the district court
ready
Supp.
in late
Pro Se
purpose
interfere with the
Trial Act's
App. at 129a.
insuring prompt trial of criminal cases for the
*11
indict-
the
a motion
dismiss
trial
dants
speedy
outweigh the
serve
Act.
the
for violation
ment
defendant.
and the
public
the
interests
the motion
denied
court
district
The statute
Id.
3161(h)(8)(A).
U.S.C.A. §
time
that
only
the
its
stated
justify
must
dismiss
court
that the
provides
also
3161(h)(8)(B)(iv).Id.
under
written state-
excluded
oral or
by an
was
con-
the defendants
appeal,
its reasons
the record
294-95.
on
at
forth
setting
ment
district
permit
a
If such
state-
did not
Id.
that the Act
them.
tended
granting
delay occasioned
record
reasons
the
on
provided,
place
the
is not
court
ment
be excluded
the
after
ordering
cannot
the continuance
continuance
by a
defendant
a criminal
run
otherwise
within
Act’s clock would
time
the
F.2d
Rivera, 863
delay
brought
trial.
excess
to dismiss for
must be
a motion
520. More-
Brooks,
Rivera,
F.2d at
dis-
296;
the
In
at 295.
at
Id.
filed.
provide
cannot
over,
court
it
a district
when
on
record
the
did state
court
trict
unauthorized
justification
doing
it
after-the-fact
that was
continuance
the
granted
con-
ends-of-justice
delays
granting
sufficient
new counsel
to allow
in order
so
See
tunc.
nunc
tinuance
at 296.
Id.
defense.
the
prepare
time
F.2d
Carrasquillo,
totality
in the
“Viewed
held:
This
however,
held,
Cir.1981).
We have
(3d
made
circumstances,”
district court had
record
articulating on
delay
it can
that
evi-
by the
supported
findings that were
the continuance
granting
reasons
that
requirement
Act’s
met the
dence
is en-
the continuance
granting
In Riv-
Id.
the record.
they be stated
limit
seventy-day
the Act’s
before
tered
strongly
would
era,
indicated that we
Rivera,
expired. See
have otherwise
would
justifi-
after-the-fact
any apparent
disfavor
Brooks,
521-
297;
F.2d at
at
F.2d
Carrasquillo,
cation,
but
at
id.
Carrasquillo,
See
so held.
squarely
jus-
“ends
for an
reasons
Placing the
at 385.
F.2d
record serves
on the
continuance
tice”
grant-
court
district
Carrasquillo,
In
purposes:
two
justice continu-
ends
a retroactive
ed
to ensure
wanted
First, Congress
judge
heldWe
at 385.
Id.
ance.
con-
careful
give
judge
district
after
a continuance
such
grant
could
balancing the need
sideration
period
seventy-day
expiration of
de-
interest
“the
against
by a motion
its attention
brought to
achieving
society in
and of
fendant
There,
depu-
at
Id.
dismiss.
Second,
require-
trial.”
court
clerk,
than
rather
ty
ap-
so that an
record
provides
ment
at
Id.
date.
trial
fixed the
judge, had
the decision.
may review
pellate
argued
385. The
Brooks,
(quoting
F.2d
Rivera,
at
contacted
attorney had
defendant’s
Thus,
omitted)).
(citations
at 520
discussion
clerk,
deputy clerk’s
deputy
“requires
controlling precedent
the trial
regarding
be-
a continuance
to decide
of a
as the
viewed
could be
date
run,
does
it
begins
[but]
fore
rejected
We
the Act.
under
reasons
put its
require
judge
a district
held that
argument and
subsequent
A
time.
at
record
be-
grant a
consider
must
purpose
satisfies
articulation
excluded
may be
time
fore the
at 297.
Rivera,
statute.”
at 385-86.
3161(h)(8)(A). Id.
court,
dis-
after
Rivera,
decision
no
there
Carrasquillo,
counsel,
a continuance
qualifying
part whatsoever
or reflection
Id.
months.
for three
delayed
concerning the
not use
did
Rivera
expiration
until
order and
delay form
Act
The reasons
at 385.
Id.
period.
at the
to the
any reference
not make
wholly an
gave for
days
Five
the continuance.
contrast,
Here,
afterthought.
date, the defen-
scheduled
*12
on the record
continuance
granting such a
an ends
that
stated on November
Rivera,
granted a retroactive contemporane- during which The court the continuance. for the justified continu- appearances ously specifically attorney’s other the defense necessary for finding trial of that it was by unavailable for ance made him defense, prepare held that a his adequately This Court Carrasquillo. jus- frequent and successive grant considering “ends judge could tunc, attorneys. La- nunc provid- among turnover tice” continuance Rivera ter, permits, the court additional- for unau- justification fact ing after the declared, Rather, reference ly justified we the continuance delays. thorized the mat- must consider unusual nature of the defense the numerous sought present, whether and determine ter at outset superseding in- require resulting from the justice” charges the “ends findings, supported by dictment. These postponed. trial be record, clearly erroneous. are not decide court must Although the district continuance, grant a initially whether order, the dis- In the December Carrasquillo, not, require that we findings supplemented earlier trict entered the decision be reasons excluding time specifically orders time that the at the same on the record necessary to 1991 as prior made. decision is and to preparation for trial permit effective Rivera, miscarriage justice, preclude a Similarly, Id. at 521-22. (B)(i) 3161(h)(8)(A) while to 18 U.S.C.A. Brooks and stated upon relied Lat- recognized that (iv). court to Carrasquillo requires the rep- and intended tany incarcerated a continuance decide to court, on Octo- that the resent himself and does not re- period expires, it of a 24,1990, precluded ber reasons for place quire the court
879 Brenna, curiam). we Cir.1989) (per basis as the disorder gambling purported said: insanity defense. of an pursu- continuance justice rea- ends of requirement [A]n the purpose The 3161(h)(8)(A) be en- cannot to section consid- ant insure careful is to be stated sons tunc, and hold the nunc [we] tered factors the relevant eration must, at a order, court district the in its a reviewable provide court entering an minimum, is it are state purposes Both appeal. record or a contin- continuance order, justice” “ends of taken if the text served 3161(h)(8)(A). to section pursuant subsequent uance detailed more together with must be case continuing the fac- The order statements, explains adequately days to excluded. entered under continuance basis before tual criteria. relevant original). When (emphasis at 122 Id. extension, Rush, 507 F.2d announced 738 court v. district States United preprinted denied, by either unaccompanied U.S. 470 Cir.1984), cert. (1st state- (citing justice” (1985) “ends or an 378 order L.Ed.2d form 105 S.Ct. in this expressed 520-22). Although concern Brooks, 697 F.2d ment. present Brenna is incorporate merely from may not statement court district requirements however, here, out set the reasons by reference from The statement it to articu necessary for met. Rivera statute, were it is in Riv- set the dicta are is in accord obvious Brenna are facts which late hoc rationalization. condemning post continuance era for the in the forth mini- court, at a v. Mitch States requires district (citing United It Id. itself. is enter- Cir.1983) (mo that it mum, order (1st in its state ell, 723 F.2d or a complimenta justice” continuance ing read as an “ends ruling and court tion Janik, section pursuant States United documents); ry Here, for- Brooks Cir.1983)). the minimal Id. 3161(h)(8)(A). (7th 537, 545 Speedy Tri- fully preprinted court mality utilizing district Rivera permit a stating that contin order delay form granting Act al reasons articulate contin- entering Trial Act an “ends even uance pursuant provided a “continuance expired, or uance” have would was met requires 3161(h)(8)(A)” Brenna is entered the continuance granting order granted its limit first seventy-day time district the Act’s November De court’s open-ended run. induced justi the conditions is sufficient Since 1989. order cember May present still to do so open-ended continuance original fy the in the fully articulated contin open-ended and were November Bren- order, under permissible themselves uances After met.16 na requirement was Act. to withdraw leave prior counsel counsel, stand-by Smith appointing its belief court, keeping 1990 extension his new Lattany and to allow it needed continu November prepare, adequately enough time origi counsel separately ance, if treated extant the still however, extended present would, continuance, nal again our decision problem an additional inform should (3d stated that Brenna, to allow granting a Brenna imposed requirements The formal reason prepare trial. This adequate time to in Riv- out set requirements we supplement the provi- special Act’s requirements utilize Rivera, did not themet era. adequate give allowing form preprinted sion See 18 U.S.C.A. the continuance to counsel. preparation time state that or justice.” necessary (iv). the “ends 3161(h)(8)(B)(ii), Act or the Rather, merely that it stated ready go to Lattany was court when
trial.
Having disposed
problem
of the Brenna
by May
created
1990 extension of
the No-
When
*14
continuance,
pre-existing open-ended
continuance,
open-ended
vember
yet
ques-
general
we have
to address the
seventy-
was entered before
its order
open-ended
propriety
tion of the
contin-
addition,
expired. In
day limit
have
would
Speedy
If
uances under the
Trial Act.
reasons for
stated the
the district court
open-ended
permissible,
continuances are
continu-
the November
granting
we must also decide whether the Rivera
expound-
and then
contemporaneously
ance
maxim, allowing supporting reasons for the
writ-,
subsequent
in a
ed on those reasons
placed
continuance to be
on the record at a
in Brenna did
The district court
ten order.
date,
open-ended
later
extends to
contin-
prior
expira-
grant any continuance
addition,
In
uances.
we must decide
by the Act.
It
the time allowed
tion of
depen-
a reasonableness limitation
whether
continuance, or first
attempted
grant
particu-
dent on the circumstances of each
continuance, after
officially recognize the
placed
lar case must be
on such continuanc-
expired in the
period
the time
would have
so,
es and
whether the
this case
Brenna,
such continuance.
absence of
was reasonable.
Here,
contrast,
the dis-
F.2d at 118-19.
appeals
Other courts of
have addressed
granted
open-ended
continu-
trict court
open-ended
problem
continuances.
period
ance
the time
Pollock,
In United
v.
* limited Jr., Judge Weis, Circuit Joseph Senior F. Hon. ing. Appeals Third for the the United