*1 America, STATES UNITED
Appellee, SHELLEF, Defendant-Appellant.
Dov 11-876-cr.
Docket No. Appeals,
United States Court
Second Circuit. June 2012.
Argued:
Decided: 2013. June
Corrected: *2 (Andrew A.
Scott Chesin Frey, L. An- Schapiro,. LLP, drew H. Mayer Brown York, NY; Henry Mazurek, New Clay- E. LLP, York, man & Rosenberg NY, New brief), LLP, on the Mayer Brown New York, NY, Defendant-Appellant. Mergen (Ignacia Moreno, Andrew C. S. General, Attorney Assistant Sambhav N. Sankar, Nelson, brief), James B. on the Environmental & Natural Resources Divi- sion, Justice, Department Washing- U.S. ton, D.C., Appellee. LEVAL, POOLER,
Before: and RAGGI, Judges. Circuit separate POOLER dissents in a opinion. RAGGI,
REENA Judge: Circuit appeal judgment This from a of convic- February tion entered on in the United States District Court for the East- (Joseph ern District of New York F. Bian- co, Judge), questions raises about Act, proper application Trial retrial, seq., 3161 et specifi- cally, whether a may district court find supporting factors an extension of the time initially for retrial pre- 3161(e), 70-day period, scribed see id. or may findings whether it make such even 70-day period passed. has We after questions confront these in the context of a suggesting prose- record both insufficient cutorial attention to trial obli- gations by prior and a lack of candor de- fense counsel about actual readiness for that of Ruben- concern, however, had his severed deter- trial. Neither judgment The initial stein, at 103. see id. end, con- In appeal. mines therefore, was, vacated of conviction may that, preferable however clude *3 trial. id. for a new See the remanded case the time findings extending § for 70- the initial to be made for retrial Follow- Proceedings B. District Court itself does the statute period, day retrial ing Mandate For that requirement. a such impose not I issued This court’s mandate Shellef identify no error in reason, and because parties agree all March on which grant an to court’s decision the district purposes for of calcu- starting the date in its determina- days or to 180 extension Speedy Trial Act lating time under the tried within tion that defendant retrials. See 18 provision governing judgment. challenged time, we affirm the 3161(e). To facilitate our consid- U.S.C. s Trial Act chal- eration of Shellef Background I. remand, we his on lenge to conviction Appeal and A. First Trial the events follow- our discussion of frame the mandate reference ing issuance of 28, 2005, Dov Shellef defendant July On periods. to discrete were Rubenstein and confederate William jury trial after a six-week guilty found April to 2008: 1. March J Seybert of one count Judge Joanna before to Reassignment Case fraud, tax see conspiracy to commit Judge Platt 4681-82, 371; §§ U.S.C. mandate, of the Ten after issuance fraud, see 18 counts of substantive wire 14, 2008, gov- the by letter dated March arise out of These crimes 1343. Seybert requested Judge ernment buy to and sell an complex scheme conference, advising that a status schedule CFC-113, chemical, with- ozone-depleting require now I remand would Shellef required millions of dollars paying out Be- for the two defendants. three trials and income taxes. Shellef federal excise request, Judge Seybert acted on this fore mon- guilty on 41 counts of was also found on randomly reassigned the case was 1956(a)(1)(A)(i)-(ii), laundering, see ey id. 21, 2008, Platt to Thomas C. March (B)(i); subscribing to false two counts of District Local Rule pursuant to Eastern returns, tax see 26 U.S.C. income 50.2(1XI).1 26, Judge Platt or- On March in- 7206(1); of personal and one count appear for conference parties dered the evasion, § 7201. come tax see id. April on 10. ruled that Shellef appeal, this court On April 2008: Discussion of had the 1996 tax was entitled have Need Re-Indictment Possible count) (but tax severed counts not the 1999 Early and Retrial in him, charges against see from the other conference, ”),507 (“Shellef question I At the United States whether, (2d this Cir.2007), consistent with and to have arose as 99-100 F.3d randomly rule, appellate court clerk shall provides divi- 1. This local which judges preside over the among judge a different of business select sion York, Notwithstanding provision New states in rele- Eastern District of case. part: assigned judge may vant the case chief order judge plac- presiding to avoid original judg- upon reversal of In a criminal case judge. another ing excessive on burden resen- and a for retrial or ment tence, direction Ct., 50.2(0(1). L. Rules U.S. Dist. E.D.N.Y. receipt of the mandate of on ruling, government appropriate court’s severance ask for Speedy Trial Act ex- pursue necessary could retrials on the clusions future court appearances. (the existing single govern- indictment position), re-present
ment’s or needed to J, 3. May 19 to November 2008: Gov- grand jury the case to a to seek three Request ernment’s Trial Date and (defendants’ position). distinct indictments First Speedy Trial Motion Shellefs initially Platt inclined With toward Approximately later, five weeks view, government the latter sought requested that Although leave to brief the issue. no set *4 the district court set new trial dates in the schedule, specific briefing the district court case. In four-page, a single-spaced letter, government directed the to include in its government the presented legal argument speedy brief assessment of the as to why retry it could the defendants on status the case. original indictment, the contrary to reser- government advised the court that by vations noted Platt Judge opposi- parties exploring the had been the possi- tion by voiced defendants at the April 10 bility early of retrial in 2009. Judge When 27, 2008, conference. On Judge Platt Platt speedy observed that trial exclusions government, alia, instructed the inter to necessary be would retrial until copies submit of the redacted indictments 2009, government the stated that the case proposed to use at the three anticipated already had complex been declared a mat- retrials. For apparent reasons not ter, presumably Speedy a to the reference record, the government did comply not Trial Act’s provision. continuance See 18 22, July until 2008. (B)(ii).2 3161(h)(7)(A), Shellefs then-counsel, Shellef never filed Abrams, opposition to E. agreed Stuart government’s May argument that the case that retri- complex, emphasized was but proceed al could without new agreeing “open- Shellef was not indictments. Instead, 3, 2008, on June ended extensions of his time.” counsel 10, April Abrams filed a Judge two-page seeking 2008 Tr. 16:4-5. Platt motion pending observed that he did not dismissal of the understand that indictment on the government’s ground to be the request, 70-day period which the government Nevertheless, confirmed. which required by Shellefs retrial was Platt Judge agreed that the 13, case was com- U.S.C. had expired May on plex, identifying support for that conclu- 2008. Platt denied the motion on panel 24, 2008, sion I July decision. He finding that he had implicitly not, however, expressly did granted state that he a trial exclusion on April granting 10, was a 2008, continuance on 10. pursuant Rather, 3161(h)(7)(A), he parties (B)(ii), instructed the to consid- based the com- case, er the matter further so that they plexity could which was then ac- 3161(h)(7)(A) "[wjhether permits 2. Section a district the case is so or so com- unusual judge, defendants, request on his plex, own motion or at the due to the number of parties, grant one of the prosecution, a continuance nature of the or existence of law, contemporaneous trial on the questions basis of oral or novel of fact or that it is unrea- findings justice expect written that the adequate preparation ends of are sonable to by by better served pretrial proceedings the continuance than or for the trial itself with- Among properly trial. by” factors con- in the time limits established making (h)(7)(B)(ii). sidered in such determination is Trial Act. 18 U.S.C. 3161 retrial, immediately by were seek- followed Shel- parties all who knowledged object- counsel lefs retrial. Rubenstein’s January 2009.3 ing retrial date, invoking ed to the trial scheduled later, by letter dated Oc- Three months ongoing plea nego- treatments and medical 29, 2008, again re- government tober date, Judge Platt maintained the tiations. to set trial conference quested status if advising against the case Ruben- Platt dates. On November by plea before Novem- stein were resolved for November that conference scheduled pre- should be ber case for retri- at which time it set Shellefs begin retrial on that pared to Shellefs Meanwhile, on No- al on November objected, noting that he date. Abrams a motion to Abrams filed vember currently engaged a trial would of Shellefs bail. modify the conditions November. Fol- not be concluded late lowing Judge suggestion Platt’s that Shel- Ip, to June 2009: 4. November try could lef retain other counsel who Trial Requests Continu- Shellefs scheduled, Abrams advised that a case as Reassignment Case to ances and *5 might not late November trial still be real- Judge Bianco expected to file additional istic because he time does not contest Shellef government’s de- motions addressed to the 4, motion between the November 2008 bail unspecified cision not to re-indict and to 14, and the start of trial on December I ruling. issues raised the Shellef 2009, properly speedy excluded from Judge suggested Platt ef- Shellefs Thus, trial we need not dis- calculation. forts to avoid a 24 trial cast November particular supporting cuss the exclusions sincerity speedy doubt on the of his earlier Nevertheless, this conclusion detail. trial protest. think it to summarize the events useful 17, On November Abrams advised the giving rise to this 13-month of fur- un- provide ther context for the district court that his client had been appeal retry trial raised on this speedy issues able to secure new counsel 24, on that the trial in explain reassignment and to of this case November and Bianco, final not conclude Judge speedy engaged case to whose which he was would challenged. proposed trial is here until mid-December. Abrams assessment pretrial that new motions be filed De- conference, At the Abrams November 22, 2008, trial cember and be ad- argument his that Shellef had renewed 12, journed February sup- until 2009. In Judge been denied retrial. Platt schedule, port agreed of this to a Shellef unconvinced, reiterating that he remained 3161(h)(7) continuance of 3161(h)(7) granted had con- implicitly justice. the interests of The district court complexity, running tinuance on based accordingly February rescheduled trial for 10, from the status conference 17, 2009. through January par- the month the 5, 2009, possible January again ties had identified for retrial. On Abrams trial, Nevertheless, adjourn light of Shellefs moved to as well as for leave withdraw, advising trial challenge, Judge proceeded Platt to to for the first 24, 2008, Platt that not finalized Judge set November for Rubenstein’s Shellef had Although Judge poses simplicity, 3. Platt based his on 18 we refer to the current order 3161(h)(8), statute, that section was renum- version of the even if cited cases dis- 3161(h)(7) bered to 18 U.S.C. on October cuss older version. 13,2008. pur- See Pub.L. No. 110-406. For Abrams’s retention for retrial. At the en- petitioned this court for a writ of conference, mandamus, suing January Abrams stat- which was on March denied $250,000 See In re Dov Shellef, that if the court ed would release 09-0607-mr (2d. 2009) (order Cir. Mar. bail, denying money posted of the Shellef had mandamus). The order nevertheless iden- effect Shellef would be able to Abrams’s tified various constitutional concerns aris- retention, allowing proceed retrial ing from Shellef s claim that the denial of problem scheduled without “the of having application Mazurek’s forcing him “un- [to secure] new counsel.” Jan. 2009 Tr. willingly proceed se,” pro to trial which consent, government’s 5:18-19. With the this court Judge assumed Platt would ad- the district court money. released the dress before retrial. Id. at 2. however, “problem,” counsel was not elimi- nated. jury With selection begin scheduled to on the afternoon of March Judge Platt 5, 2009, By February letter dated attor- extensively heard from Shellef ney Henry E. Mazurek sought leave to Abrams on that morning day and the be- request- substitute as Shellef s counsel and fore about Shellef professed s longstanding 60-day ed a continuance date intent to secure different representation to afford him adequate prepara- time for retrial, dysfunctional his current rela- tion. application Platt denied the tionship record, with counsel of and his February apparently at an un- unwillingness represent himself. transcribed telephone conference. Pre- Platt remained *6 in refusing adamant to al- sumably, yet he had not sup- seen Shellef s low a substitution of counsel that would declaration, 10, porting February dated require adjournment of trial. judge which advised that it had been his inten- that, voiced frustration past status con- tion since “remand ... in March 2008” to ferences, given Abrams had the misim- seek new counsel for retrial because of that, pression but scheduling for conflicts disagreements “fundamental and irrecon- funds, and lack of he ready retry stood to cilable differences” with counsel of record judge the case. The further characterized (Feb. about his defense. Shellef Decl. inadequate proposed stipulation to 2009). 10, Shellef attributed his failure to speedy waive trial challenges operated do to persisted so financial constraints that only prospectively. Abrams construed the until the district court’s release of impermissibly bail latter statement as condi- represented tioning funds. Shellef Shellefs Abrams choice of counsel on the withdrawal of agreed original speedy had to trial represent him on remand challenge, prompting a exchange heated purposes speedy of bail and trial ultimately led to request Abrams and that “adequate the two had had no recusal, Judge request Platt’s which was meetings substantive or communications” denied. respect with to defense strategy at retrial. explain why
Id. Shellef did not these cir- At the same time that proceedings these presumably making impos- being court, were conducted the district cumstances — proceed sible to to retrial at successfully Mazurek obtained a tempo- between March February 2008 and 2009— rary stay of trial from court while he had not been disclosed earlier to the dis- petitioned for a writ of mandamus. See In By trict court. written (2d order dated Feb- Shellef, 09-1183-op re Dov Cir. Mar. 17, 2009, (motion ruary 2009) 24, Platt adhered to his emergency stay mandamus). original denying 15, decision substitution. April trial and writ of On through of all time proper exclusion mandamus to the 2009, granted this court 14, 2009. of trial on December the start ordering reassignment extent these 246 Dov that at least 66 of judge. Observing See In re case to a different -2009) (2d 15, excludable under Apr. days had to be 09-1183-op Cir. Shellef, mandamus). retrial to be (order Pursuant Trial Act for Shellefs granting 2, 2009, the fol- timely, the district court identified mandate, on June issued which delay: Bianco of excludable lowing periods reassigned the case was 17, 2009. on June 28, First, March days spanning the five 2008, 2008, 1, automatically were April 28, 17, 2009, February 2011: 5. June motion to while Shellefs first excluded Speedy Trial Motion Second Shellefs modify pending. was See 18 U.S.C. bail Challenged Judgment Con- and the 3161(h)(1)(D). viction 3, Second, days spanning the 52 June conference, 24, 2009 status At a June 24, 2008, automatically July were Judge Bianco set December first trial excluded while Shellefs retrial, agreeing to the exclu- with Shellef See id. pending. motion was intervening time from sion of all 3, 2009, September On trial calculation. Third, days, 15 additional at least pending to dismiss the Mazurek moved 3, 2008, 19, 2008, to June were auto- delays on indictment based matically government’s excluded while the 4, 2008. The occurring before November pending be- motion to set trial dates was orally the motion on district court denied speedy trial motion was fore Shellefs first 19, 2009, January on November id. filed. See post- of trial and after the conclusion Fourth, day, one memo- filed a detailed proceedings, of the status conference excluded because reasoning. explaining and order its randum 3161(h)(1); that date. id. United See F.Supp.2d States v. See United *7 Shellef (2d 101, 107 Lucky, 569 F.3d States (E.D.N.Y.2011). 280 .2009). Cir Therein, Judge Bianco construed totaled periods Because these excludable 10, 2008, to April on proceedings record of only days, Judge 73 Bianco concluded Platt implicit finding by Judge reflect days elapsed of unexcluded time had 173 days 70 of the mandate that retrial within 4, between March 4 and November impractical, and to extend would have been rejected Accordingly, Judge Bianco Shel- days pursuant for retrial to 180 the time mer- challenge lefs as without 3161(e). § Even the absence 18 U.S.C. it, finding that he was retried 180 Platt, however, by Judge of such action days of unexcluded time from this court’s concluded that he had the Judge Bianco mandate. finding of im- authority to make the same time for practicality and to extend the on Decem- Shellefs retrial commenced days, retrial to 180 which he did. 2009, 14, Ru- ber with former co-defendant testifying among In had been benstein the witnesses considering whether Shellef 27, 2010, jury against January him. required days, Judge tried within the 180 On of count of con- days guilty between found Shellef one Bianco focused on the 246 fraud, 4, tax 43 counts of spiracy mandate and the No- to commit the March 2008 fraud, 4, money laundering, 41 of mo- wire counts filing vember 2008 of Shellefs bail filing of a false tax return. concedes and one count tion—after which time Shellef
101 Upon post-trial review of Shellefs mo- the district court’s identification periods of tions, the district court dismissed 33 of the statute, of exclusion under the we review money laundering counts of conviction as the' district findings court’s of relevant n 31, 2011, duplicative. January On it sen- error, facts for clear but we review years’ tenced Shellef to a total of five the application of the Speedy Trial Act to imprisonment, years’ supervised three re- those facts de novo. See United States v. lease, special Simmons, (2d and a assessment Cir.1986). 786 F.2d 483 $5,300.00 remaining on the counts of con- Applying principles, these we conclude The court viction. also ordered Shellef to that rulings three suffice to resolve this money forfeit about .First, million and appeal. $1.1 the findings necessary to property. Judgment formally entered extend prescribed period for retrial February timely ap- and this from 70 to days under peal followed. § can be made after the initial 70- day-period for passed. Second, retrial has II. Discussion the factors by Judge relied on Bianco in granting an extension to days “re- appeals Shellef single his conviction on a time,” from passage sult[ed] ground: the district U.S.C. purported court’s fail- 3161(e), insofar they ure to him reflected afford a retrial within the time changed circumstances between the close prescribed by Trial Act. See 18 of the 3161(e). original trial grant and the Shellef insists that the Third, extension affecting retrial. Judge prescribed days time was 70 because Bianco correctly identified sufficient ex- Judge April Platt’s actions on support cludable the conclusion inadequate support were a statutory that Shellef was retried within 180 days extension of up days, to 180 this court’s Accordingly, mandate. af-we Bianco could not make requisite find- firm the judgment of conviction without ings for 70-day extension after the initial needing to decide whether April elapsed. had argues that he 2008 record is itself sufficient to support was not tried within days 70 unexcluded either a extension to days or this court’s March 2008 mandate be- 3161(h)(7) pursuant continuance cause Platt’s actions at the timely that renders Shellefs retrial within conference were inadequate to manifest 70 unexcluded of mandate. contemporaneous exclusion for complexity pursuant 3161(h)(7)(A), to 18 U.S.C. *8 A. Speedy The
(B)(ii), Trial Act Does not, Not any event, which could in be Place a Limitation on the open Time ended. See United States v. Gambi- no, (2d Within a Cir.1995). Which District Court 59 F.3d 358 Shellef 3161(e) § Grant a Extension argues that, further even if the prescribed Retrial time for retrial were found to be days, 180 he not tried within that time because The provision Speedy of the Trial Judge Bianco in treating erred various Act relevant to retrial states: periods time as excludable. If the defendant is to be again tried
Insofar as these issues challenge
following an appeal or a collateral at-
Act,
the construction
Speedy
tack,
Trial
the trial shall commence within
they present questions of law that
seventy days
we re
from the date the action
view de novo.
Lucky,
See United States v.
occasioning
final,
the retrial becomes
ex-
102 omitted); Robinson v. Shell Oil see marks retrial not to the
may extend
Co.,
337, 340, 117
136
S.Ct.
519 U.S.
days
eighty
hundred
one
exceed
(1997).
language
The
L.Ed.2d 808
occasioning the
action
date
the
from
3161(e)
courts
district
§
authorizes
plainly
unavailability
becomes
retrial
final if
as much as
for retrial to
the time
to extend
resulting
or other
witnesses
from
factors
circumstances. No
days
specified
in
180
within
make trial
time shall
passage of
however,
3161(e),
states
§
language
days impractical.
seventy
ex-
may grant such
court
when
district
added).
3161(e) (emphasis
§
make the neces-
it must
or when
tensions
lan-
highlighted
argues that
Shellef
Nor does
findings.
sary supporting
require that
be construed
guage must
the district
language
statutory
state
only
granted
time be
any extension
authority
limited to the
court’s extension
70-day peri-
initially prescribed
within
70-day period for retrial.
initial
that after that
He submits
for retrial.
od
court is
passes, a district
70-day period
infer
urges us to
nevertheless
impracticality
to make
empowered
Congress’s
not
use of
limitation
such a
from
an extension
necessary
support
findings
statutory phrase
in the
the future tense
question
is one of
days.
up to 180
warranting
the circumstances
specifying
:
Moreover,
this court.
impression
first
unavailability of witnesses or
“if
extension
appears to have
circuits
none our sister
resulting
passage
factors
other
construe
directly.4 We here
answered
seventy days
within
shall make trial
3161(e)
limit on
temporal
no
place
3161(e) (empha
impractical.” 18 U.S.C.
authority to extend
court’s
district
added).
understand Shellefs
As we
sis
days. Accord-
up to 180
time for retrial
find that fac
only
court can
argument, a
exten-
we conclude
ingly,
days
im
make”
within
tors “shall
initial-
even after the
may
granted
sions
finding
before
if it
practical
makes
has
70-day period for retrial
ly specified
Any finding
days.
expiration of the 70
requisite imprac-
provided that
passed,
a different
days
require
after 70
would
arising
factors
finding is
ticality
based
then have to
would
verb tense:
court
period.
initial
before or within that
“made” or
specified
factors
find
days
initial 70
“have made”
analysis necessarily be
“Statutory
that Con
Shellef submits
impractical.
a law’s
meaning of
text
plain
with the
gins
these alternative
failure to use
gress’s
and,
ambiguity,
generally
will
end
absent
to cabin the
Holder,
indicates its intent
F.3d
tenses
Cruz-Miguel v.
there.”
Cir.2011) (internal
exten-
(2d
of district
exercise
courts’
quotation
(5th
complain that the exten-
could not
Holley,
defendant
986 F.2d
In United States
Cir.1993),
express
terms of
the district court
sion "violated
a case which
beyond
filed its
originally
retrial
Act” because "the
extended
Trial
continuance,
3161(h)(7)
provided
pursuant to a
time limit
motion within the initial
indicate that the
3161(e),”
its order to
later to amend
at 1027.
in section
id.
*9
3161(e),
§
the issue
pursuant
to
extension
District Court for
The United States
appears
have been the basis for
appeal
on
to
ques-
has considered
District of Columbia
3161(e) ruling,
§
not its
and,
the district court's
upon review of the text
here at issue
tion
timing,
id. at 103.
see
3161(e),
§
that an
purpose of
concluded
speedy-trial clock under that
Goetz,
extension
1025
v.
826 F.2d
In United States
the initial sev-
"after
provision is authorized
Cir.1987),
(11th
Circuit did
Eleventh
not
elapsed.”
States
enty-day period has
United
granted
district court had
specify whether the
(D.D.C.
Ginyard,
F.Supp.2d
36
passage
after
before or
a
extension
2008).
concluding
period in
that
70-day
of the initial
70-day
sion
to the initial
period.
discretion
temporary restraining order issued under
persuaded.
not
We are
this
time,
section
expire
shall
at such
not
to exceed 14 days
issuance,
from
as the
“shall make” is language
While
that
directs;
court,
court
for good cause
looks to the future
past,
rather than the
shown before expiration
order,
of Such
subject
the verb’s
is not the
court
district
may
expiration
extend the
date of the or-
“factors resulting
passage
but
from
der for up
days
to 14
or for such longer
context,
In
Congress’s
time.”
use of
period agreed
to
party.”);
adverse
properly
the future tense is
understood to
2107(c) (“The
district court
it
signal
necessary
that
is not
to wait a full
may, upon motion filed not later than 30
days
granting
before
an extension of
days after
expiration
of the time other-
retrial,
i.e., until there can be no doubt
wise set for bringing appeal, extend the
that
“made”
factors
or “have made” retrial
appeal
upon showing
a
of excusa-
period
Rather,
that
impractical.
neglect
cause.”);
ble
or good
Fed. R.App.
may
granted
extension
as soon as it is
4(a)(6) (“The
P.
district
may
court
reopen
evident that factors “shall make trial with-
the time to
an appeal
period
file
for a
14of
in seventy days impractical.” 18 U.S.C.
days after the date when its order to re-
3161(e).
We do not
a
understand
verb
”).
open is entered....
In the absence of
permits
a
choice
district court
any such language temporally limiting the
grant an extension based on reasonable
judicial discretion,
exercise of
identify
we
certainty
future
to foreclose it
doing
statutory
no
basis for holding that a court
past
Indeed,
so
on
actuality.
based
in any
may identify the “factors resulting from
circumstances,
number of
the reason a
passage of time [that] shall make trial
court can
early
conclude-
into the initial
within seventy days impractical” only with-
retrial
that certain factors “shall
initial 70-day period. 18
make” retrial
days
within 70
impractical
3161(e);
Ginyard,
see United States v.
already
the factors
“have
made”
so.
(D.D.C.2008).
F.Supp.2d 30,
short,
In
use of the future
speci-
tense for
that,
Shellef maintains
even if the text
fied
factors
render
retrial within 70
plainly
not
support
does
tem-
impractical indicates that the factors
poral
judicial
on
authority
limitation
themselves must arise before or within the
grant
retrial,
extensions of
pre-
should
70-day period, and not
But it
thereafter.
clude retrospective findings
impractieal-
says nothing about when a district court
ity
safeguard
risk,
against the
noted in
must find such circumstances.
Tunnessen,
United States v.
statutes comparable language ing de Terrestres S.A. y Navieros Transportes 3161(h)(7)(A)’s the court” “unless N.V., phrase § Transp. Heavy v. Fairmount C.V. intent to limit the Congress’s signals (2d Cir.2009); that United see F.3d 109 572 discretion. judicial extension of at 36 exercise F.Supp.2d 572 v. Ginyard, States noted, re- “factors already phrase the As to dis- meaningful reason “no (identifying shall make of time sulting passage sixty- finding on the a tinguish between seventy days impractical,” 18 that trial within trial clock day of ninth 3161(e), only that § indicates finding U.S.C. the same is impractical 70-day peri- arise within must factors day”). seventy-first on the made make its find- od, court must that the not Second, we noted rationalization when Nor has Shellef period. that ings Tunnessen, holding that a case in concern urged his support for any pointed us justice of the interests in continuances history for in legislative construction 3161(h)(7) § could pursuant 18 3161(e). § did so only prospectively, granted Third, not to further reason transfer that the dictum, already concluded having rationalizations hoc post with history of concern legislative text and statutory 3161(e) 3161(h)(7) §to § continuances 3161(h)(7) Congress’s expressed plainly § distinction be important is an extensions prospec- grants only to be for such intent Tunnessen, provisions. the two 763 tween v. States tive. See United limit 93-1021, no time on places Act itself Trial S.Rep. No. (citing F.2d at 76-77 contrast, 3161(h)(7) continuances; by § (1974)). Indeed, language at 39 3161(e) days. at 180 § extensions caps limits specifically intent signal this used to Thus, post that hoc rational possibility prospec- than authority to act other courts’ 10-, 8-, or 12-month izations could excuse “period that no tively. It states (or delay pursu pretrial longer) periods granted a continuance resulting from 3161(h)(7) does not simply § arise para- ant to with this the court accordance 3161(e) Any §to extensions. respect with this sub- be excludable under graph shall 180-day limit of forth, delay beyond in the court sets unless the section by refer justified only § can be case, orally or in writ- either of the record automatic to the defined” “precisely the ends of ence finding that ing, its reasons 3161(h)(1)-(6), by pro or such con- exclusions granting of justice served pursu exclusion prospective of a curement the best interests outweigh tinuance 3161(h)(7). States v. Tun ant United trial.” and the defendant public Further, nessen, at 76. 3161(h)(7)(A) F.2d add- (emphasis 3161(h)(7) depend upon a States, continuances ed); 547 U.S. Zedner v. United see factors, whereas myriad balancing L.Ed.2d S.Ct. answer turn on the extensions (2006) statutory text clear that (holding factors aris made, question: do specified if in the a single “findings must be days of the man or within 70 ing continu- mind, granting the before judge’s before Tunnessen, during im retrial 763 date render ance”); v. States United the latter determination practical? While that while district (observing at 78 F.2d judgment, because an exercise of requires “precise state reasons” court need not focused, there is narrowly less it is more granted, continuance its decision day on the 71st given risk answer time will be “prospective statement (or differ from an day) 171st will justice ends' of even on the excluded based day. See the 69th United given reviewing court answer serves to assure F.Supp.2d at 36. Ginyard, done at the States balancing was required *11 Thus, we conclude neither the stat- for retrial after the initial 70-day retrial utory text nor unwarranted concerns about period passed, had judge rely- erred in support the conduct of district courts con- ing on factors that did not ] from “result! 3161(e) § struing 18 U.S.C. to limit the passage of support [the] time” to the con- exercise of a district court’s extension dis- clusion that trial within days was im- provision cretion under that to the initial 3161(e). practical. We identi- 70-day period retrial. What the stat- fy no such error. requires statutorily ute is that the speci- The Speedy Trial Act does not itself supporting fied factors extension arise provide standards for determining when a 70-day period
within the
and -make trial
factor results from the passage of time or
within that
impractical. According-
even when such a factor renders trial im-
ly,
argument
Shellefs
Bianco
practical.
suggests
This
that Congress in-
3161(e)
precluded by §
from extend-
tended to
experienced
afford
judges
trial
ing the time
days
for his retrial
to 180
considerable discretion in making such de-
passage
initially
after
prescribed 70-
terminations.
view,
Consistent with this
day period fails on the merits.
circuits,
our sister
when confronted with
said,
being
That
no
by
one is well served
challenges to whether factors
supporting
3161(e)
delaying
determinations until
3161(e)
extension resulted from
pas-
long after the
70-day period
initial
time,
sage of
have been inclined to conduct
passed.
retrial has
parties
and the
case-by-case review rather than to make
court have a strong interest
in knowing
categorical pronouncements.
Thus,
sooner rather than later whether speedy
United States v. Holley, the Fifth Circuit
calculations are controlled
a 70-
3161(e)
upheld
§a
extension based on
limit
day
longer
or some
period up to 180
“factors resulting
passage
from
of time”
Thus,
days.
where factors make it im
that limited the availability of a judge to
practical
retry
a case within the origi
retry the case within the initial 70-day
nally prescribed 70-day period, the “best
period. See
(noting
B. The District Court’s Grant aof decisions, the Fourth Circuit identified as Supported Extension Was resulting passage factors from the of time Resulting Factors the Pas- (1) making trial within 70 impractical sage Time co-defendant’s counsel’s need to review ex- argues that even if tensive materials from the first trial of a (2) Bianco case, was authorized to extend the complex defense both counsels’ *12 106 (1) reasons, orig- the (3) including: conflicts, for several govern and
scheduling
ag-
had been
complexity
had inal
of the case
who
to locate witnesses
need
ment’s
to sever
first
on remand
the need
custody
gravated
since the
released
been
Aboh,
sepa-
145 F.3d
into three
trial,
charges
v.
and defendants
States
see United
(4th
(2)
remand,
196612,
trials;
following
*1-2
but be-
1326,
at
Cir.
rate
1998 WL
1998)
22,
70-day period
while
of the initial
(unpublished);
expiration
fore
Apr.
unavailability
retrial,
of the
intervening Supreme
cited the
Court
Ninth Circuit
States,
decision,
unknown where
v.
original prosecutor,
see Cuellar United
agent and confi
1994,
case
original
At the same
dictum,
scheduling
that “routine”
indicated
that,
fac-
even if there is
argues
cannot, by
negotiations
plea
conflicts and
in
these fac-
support
tual
the record for
themselves,
resulting
factors
be viewed as
tors,
as a matter of
the district court erred
making
of time
retrial
passage
from the
they
were attribut-
concluding
law in
days impractical. See United
within 70
He submits
“passage
able to the
of time.”
Pitner,
n.
307 F.3d
v.
States
were attributable to court
that the factors
(9th Cir.2002).
Circuit, in
And the Tenth
rules,
not derive
rulings or local
which do
(10th
Scalf,
v.
makes a meritorious
dent”).
apply here
delay in trial attrib
does not
fact,
principle
no
will,
suffer
observed,
he will
already
because
because,
to the exclusion
have
utable
as we
§ 3162.
See 18 U.S.C.
dismissal.
secure
in a
ruling
pronounced
New Buffalo’s
only by
can be voiced
complaint
Such
plan.
involving a court
case
a non-meritori
has made
who
defendant
incorporates, by refer
Although
plan
can
A defendant
motion.
speedy trial
ous
ence,
Act’s automatic ex
Speedy
Trial
when the
complain
hardly
heard
language
it does so
provisions,
clusion
that his
necessary to demonstrate
delay
on the fact that
emphasis
more
places
lacked merit is sub
motion
speedy trial
3161(h)
§in
beyond those
no exclusions
every other
the same exclusion
jected to
automatic
than on the
will be considered
motion,
de
including meritorious
pretrial
Compare
exclusions.
application of such
Finally, every one of our
filings.
fense
of Time
Plan Rule 10 “Exclusion
W.D.
ques
have considered the
circuits to
sister
(“In
computing
Computation”
Trial Act’s
has construed
tion
3, 4, 5, 6, or
limit under section
motion de
pretrial
automatic exclusion
forth in 18
set
periods
In
speedy trial motions.
lay
apply to
excluded.”)
3161(h)
with
shall be
citing
deed,
ap
done so
have
several
3161(h) (“The following peri
United States
to Bolden. See
provingly
*16
comput
delay
shall be excluded
ods
(1st
Brown,
807, 809-810
Cir.
736 F.2d
an information
the time within which
ing
1984)
Bolden);
States v.
(citing
United
filed,
in com
must be
or
or an indictment
(4th Cir.1994);
542,
Parker,
F.3d
548
30
trial of
time within which the
puting the
Tedesco,
1216,
726 F.2d
v.
United States
commence.”).
In
any such offense must
Cir.1984)
(7th
(recognizing conflict
1221
event,
to
purport
did not
any
New
Bolden and
New
between
Buffalo
Buffalo
itself,
Trial Act
much
Speedy
construe the
Bolden);
States v.
United
agreeing with
(8th
268,
language here at issue.
specific
273
Cir.
112 3161(e) places Because 18 U.S.C. period automati-
court, we deem court’s au- on a district temporal no limit cally excludable. toup for retrial the time thority to extend grant- may be days, such an extension 180 Trial Calculation 3.Speedy 70-day original of expiration ed after brought Shellef deciding In whether on as it is long based retrial court’s of this days 180 trial within passage from of time” resulting “factors mandate, need focus 4, we 2008 March 70-day period. arising within the issuance days between only on the 246 2008, 4, resulting passage from March 2. “[F]actors I mandate on Shellef changed be- motion reference circumstances 2008 bail time” November and the first trial and of the proper exclu- tween the conclusion concedes because 70-day period, original of the November and the close all time sion of between to afford retrial impractical of retrial. 2009 start which make December frame, 246-day period. relevant Within stated, just conclude, reasons Bolden, v. United States 3. Pursuant to 19, 2008, to May July days that 67 —from (2d Cir.1983), pretrial F.2d 102 automatically excluded 2008—were mo- of a defendant’s during pendency 3161(h)(1)(D) due to 18 pursuant Speedy indictment for tion to dismiss an of the pendency ato combination automatically Act is exclud- Trial violation May motion to set trial government’s 3161(h)(1)(D). Unit- ed under 18 U.S.C. to dis- 3 motion and Shellef s dates June Amusement ed States New Buffalo indictment for violation miss the (2d Cir.1979), 368, 376 Corp., 600 F.2d dispute does not trial. Because Shellef otherwise in the context which concluded of an- court’s exclusion the district appeal cases apply does not plan, of a court 28, 2008, days March five other Trial Act itself. controlled bail modifi- pretrial when his April government’s 4. Because the single as well as pending, cation was the court to set a requesting letter confer- day pretrial disputed of a urged trial date resolution ence, of excluded the total number favor, of law its district question from 246 is 73. When be subtracted *18 a reasonably characterized it as court done, was conclude that Shellef retried triggering the automatic “pretrial motion” days after 173 unexcluded under 18 U.S.C. exclusion time and, therefore, within the court’s mandate 3161(h)(1)(D). for retrial rea- 180-day extended period Bianco. sonably granted by Judge rulings, the district light In of these in its discretion extend- court acted within there we conclude that Accordingly, finding in that days and ing retrial to 180 convic- s claim that his no merit Shellef retried within 180 non-excluda- was his statu- in violation of tion was obtained of this days of the issuance court’s ble tory right to a trial. speedy mandate.
III. Conclusion judgment of conviction Accordingly, the summarize, as follows:
To
we conclude
AFFIRMED.
ÍS
3161(h)(1)(H)
dates, i.e.,
limits excluda-
response
and 18 U.S.C.
its
to the
to set trial
tion
delay
when a motion is under
request
proposed
ble
court’s
redacted
district
indictments,
days.
to 30
July
advisement
submitted on
POOLER,
forth,
Judge:
Circuit
“sets
in
case,
the
record
the
either
orally or in writing, its
finding
reasons for
dissent,
respectfully
I
because I think it
that
justice
the ends of
served
3161(e)
to conclude that
per-
error
Section
granting of such continuance outweigh the
retroactively grant
mits a district court to
best
public
interests of the
and the defen-
continuances for re-trial. The text of Sec-
.
dant
trial.”
a
18 U.S.C.
tion
is silent on the issue of
a
when
3161(h)(8)(A).
may identify
district court
the factors that
trial
days impractical.
make
within 70
The
ends-of-justice
seminal
continuance
However, our
juris-
Court’s
case in this Circuit is United States v.
prudence provides
with a
us
framework
Tunnessen,
(2d Cir.1985).
the case order to with the
Second Circuit’s mandate certain purposes
counts be severed for of re- (2)
trial; possibility govern- that the present
ment would new evidence at the (3)
re-trial; parties’ agreement (4) complex; par-
the case was poten-
ties’ discussion with the court of a beyond seventy-
tial trial date well day period. Although it is unclear America, UNITED STATES of whether Platt was aware of Sec- Appellee, tion and he not explicitly did applicable seventy-day period extend the under that 3161 at that confer- Section
ence, concludes, KADIR, Nur, this Court as discussed Abdul Abdel Russell below, no explicit finding Mohammed, detail Defreitas a/k/a required plain language under the Defendants-Appellants,