United States v. Toombs

FILED
United States Court of Appeals
Tenth Circuit

August 3, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 08-3278
MARLO L. TOOMBS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 06-CR-20057-CM-1)

Melanie Morgan, Morgan Pilate LLC, Olathe, Kansas, for Appellant.

Terra D. Morehead, Assistant United States Attorney (Marietta Parker, Acting
United States Attorney, with her on the brief), Kansas City, Kansas, for Appellee.

Before MURPHY, SEYMOUR, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Following his arrest on and arraignment for various drug and firearm

possession charges, defendant Marlo Toombs remained incarcerated for
approximately twenty-two months before his trial began. During this time period,

the district court granted seven continuances under the ends-of-justice provision

of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7) (“ends-of-justice continuances”).

In a motion to dismiss, Toombs claimed the district court failed to make the

requisite factual findings when it granted the ends-of-justice continuances, and

therefore over seventy non-excludable days had passed between his arraignment

and trial in violation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). The

district court denied the motion to dismiss, concluding it had made the factual

findings required by the Speedy Trial Act for each of the continuances. The

matter then proceeded to trial, and Toombs was convicted on all counts. On

appeal, Toombs challenges, inter alia, the denial of his motion to dismiss.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse

in part, and remand for proceedings consistent with this opinion.

II. BACKGROUND

On April 26, 2006, Toombs and co-defendant Arlynda Osborn were

indicted for various firearm and drug possession offenses. Toombs was arraigned

on May 2, 2006, and remained incarcerated for approximately twenty-two months

preceding his trial, which began on March 4, 2008. During the time period

between Toombs’s arraignment and trial, the district court granted nine

continuances, the latter seven of which were granted pursuant to the ends-of-

justice provision of the Speedy Trial Act:

-2-
 1. On May 22, 2006, defense counsel moved for additional time to
file pretrial motions, contending he had not yet received discovery.
The motion contained a limited waiver of Toombs’s Speedy Trial Act
rights and stated the government had no objection to the continuance.
In its order granting the motion, the district court excluded the time
from May 22, 2006 to July 10, 2006, for purposes of the Speedy Trial
Act pursuant to 18 U.S.C. § 3161(h)(1)(D).

2. On June 19, 2006, defense counsel moved again for additional
time to file pretrial motions, contending counsel had not yet received
discovery. The motion contained a limited waiver of Toombs’s
Speedy Trial Act rights and stated the government had no objection
to the request. In its order granting the motion, the court excluded
the time from June 19, 2006 to July 31, 2006, for purposes of the
Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(1)(D). 1

3. On August 31, 2006, defense counsel filed a motion to continue
on the grounds that new counsel needed additional time to review
discovery and prepare for trial. 2 On September 5, 2006, the district

1
We offer no opinion as to the legal propriety of the first and second
continuances because Toombs does not challenge the exclusion of the
corresponding time periods from the seventy-day limit set forth in the Speedy
Trial Act. See 18 U.S.C. § 3161(h)(1)(D) (excluding from seventy-day
requirement “delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt disposition of,
such motion (emphasis added)).
2
The history of this motion is as follows: On June 29, 2006, an entry of
appearance as counsel for the defense was filed by Ray Sousley and Daniel Ross.
No pre-trial motions were filed, and on July 26, 2006, the district court set the
matter for trial on September 5, 2006. A status conference was held on August 7,
2006, at which time defense counsel did not appear, and the hearing was
continued to August 14, 2006. At the status hearing held on August 14, 2006, it
was determined Sousley was unaware his appearance had been entered on
Toombs’s case because his law partner, Ross, who is not licensed in Kansas, had
filed the entry of appearance for both attorneys. Sousley indicated he had spoken
to Toombs and advised him that they would be requesting a continuance. Sousley
indicated a motion to continue would be filed immediately if it had not been filed
already. The district court then inquired of Toombs about the situation and
(continued...)

-3-
 court, for good cause, granted the motion to continue, stating that the
ends of justice outweighed the best interest of the public and the
defendant in a speedy trial under 18 U.S.C. § 3161(h)(7). 3 The
district court excluded the time from August 31, 2006 to November
6, 2006, the new trial date, for purposes of the Speedy Trial Act.

4. On October 23, 2006, the government filed a motion to continue
contending it was making a concerted effort to locate and arrest co-
defendant Osborn. The motion stated the evidence against Toombs
would be largely the same as that against Osborn, who remained a
fugitive. The motion further stated counsel for Toombs had no
objection to the continuance. The district court granted the
continuance on October 27, 2006, finding that the basis of the
continuance was proper under the provisions of 18 U.S.C. §
3161(h)(6) and the ends of justice outweighed the best interest of the
public and the defendant in a speedy trial under 18 U.S.C. §
3161(h)(7). The court excluded the time from October 23, 2006 to
February 5, 2007, the new trial date, for purposes of the Speedy Trial
Act.

5. On January 23, 2007, defense counsel filed a motion to continue
stating he needed more time to prepare for trial due to three other
cases for which he was scheduled to appear in the weeks before
Toombs’s scheduled trial date. The motion stated the government
did not object to the continuance. The district court granted the
motion on February 5, 2007, stating the ends of justice served by
granting the continuance outweighed the best interest of the public
and the defendant in a speedy trial under 18 U.S.C. § 3161(h)(7).
The court excluded the time from January 23, 2007 to May 7, 2007,
the new trial date, for purposes of the Speedy Trial Act.

2
(...continued)
Toombs indicated he had no objection to the continuance.
3
The 2008 amendments to the Speedy Trial Act eliminated, inter alia, one
subsection of 18 U.S.C. § 3161(h). Pub. L. 110-406, § 13, 122 Stat. 4291, 4294
(2008). Before those amendments, what is now subsection (7) was subsection (8).
To avoid confusion, in describing the orders and opinions of courts issued before
the 2008 amendments, reference is to the subsections as they are currently
numbered.

-4-
6. On April 30, 2007, defense counsel filed a motion to continue
stating additional discovery had recently been disclosed requiring
additional investigation. The motion further stated the government
had no objection to the continuance. On May 1, 2007, the district
court issued an order granting the continuance “in order for the
defense to adequately prepare and for the reasons stated in the
motion.” The order further stated the ends of justice outweighed the
best interest of the public and the defendant in a speedy trial pursuant
to 18 U.S.C. § 3161(h)(7). The court excluded the time from April
30, 2007 to July 9, 2007, the new trial date, for purposes of the
Speedy Trial Act.

7. On July 5, 2007, defense counsel filed another motion to continue
based upon newly disclosed discovery. The motion was nearly
identical to the April 30, 2007 motion. On July 10, 2007, in an order
identical to the May 1, 2007 order with the exception of the dates
provided, the district court granted the continuance “in order for the
defense to adequately prepare and for the reasons stated in the
motion.” The order further stated the ends of justice outweighed the
best interest of the public and the defendant in a speedy trial pursuant
to 18 U.S.C. § 3161(h)(7). The court excluded the time from July 5,
2007 to September 4, 2007, the new trial date, for purposes of the
Speedy Trial Act.

8. On August 14, 2007, Toombs retained the services of Melanie
Morgan, who entered her appearance as counsel of record. On
August 24, 2007, defense counsel filed a motion to continue which
detailed the current status of the case and indicated she needed
additional time to review discovery and prepare for trial. On August
28, 2007, the district court issued an order granting the continuance.
The order stated the ends of justice outweighed the best interest of
the public and the defendant in a speedy trial pursuant to 18 U.S.C.
§ 3161(h)(7). The court excluded the time from August 24, 2007 to
November 5, 2007, the new trial date, for purposes of the Speedy
Trial Act.

9. On October 24, 2007, the government filed a motion to continue
on the grounds that Osborn had been arrested and was in federal
custody en route to Kansas. Toombs filed a motion to sever on
October 29, 2007, arguing the lengthy delay that would be caused by
a joint trial was unreasonable and asserting his Sixth Amendment

-5-
 right to a speedy trial. A hearing was held and the district court
denied the motion to sever. The district court then issued an order
granting the government’s requested continuance. The order stated
that the basis of the continuance was proper under the provisions of
18 U.S.C. § 3161(h)(6) and the ends of justice outweighed the best
interest of the public and the defendant in a speedy trial under 18
U.S.C. § 3161 (h)(7). The court excluded the time from October 24,
2007 to the commencement of the trial, not yet scheduled, for
purposes of the Speedy Trial Act.

On December 11, 2007, Toombs filed a motion to dismiss alleging a

violation of his Sixth Amendment right to a speedy trial. The district court

denied this motion. On February 26, 2008, Toombs filed another motion to

dismiss. In this motion, Toombs alleged the district court erroneously excluded

the time periods identified in the seven ends-of-justice continuances because it

did not make the factual findings required by the ends-of-justice provision of the

Speedy Trial Act. Toombs argued that over seventy non-excludable days had

passed between the time of his arraignment and the start of the trial in violation of

the Speedy Trial Act, 18 U.S.C. § 3161(c)(1).

At the hearing on the motion, the district court clarified its findings as to

the continuances granted on September 5, 2006 and August 28, 2007. The district

court explained that at the time those continuances were granted, this court had

not issued its decision in United States v. Williams, 511 F.3d 1044 (10th Cir.

2007). The district court acknowledged that, in light of Williams, its findings for

those two continuances were not sufficient. To remedy the perceived

deficiencies, the district court stated that in granting the motions it considered

-6-
defense counsel’s statements that additional time was needed to review discovery

in order to effectively prepare for trial and weighed this against the interests of

Toombs and the public in a speedy trial. The district court explained that while

adding such findings to the record so long after granting the continuances was not

the preferred practice, it was nonetheless appropriate because the court had made

the findings when it initially granted the motions. The district court then

concluded Toombs’s rights under the Speedy Trial Act had not been violated

because for each continuance it had properly balanced the appropriate

considerations and included its findings in the record. The district court therefore

denied the motion to dismiss.

Toombs’s trial began on March 4, 2008. The jury returned a guilty verdict

on all counts and the district court sentenced Toombs to thirty-five years’

imprisonment. On appeal, Toombs claims, inter alia, 4 that the district erred in

denying his motions to dismiss for violations of the Speedy Trial Act and the

Sixth Amendment right to a speedy trial.

4
Toombs also claims the district court erred in denying his motion to sever
and improperly calculating his sentence. Because we conclude a violation of the
Speedy Trial Act has occurred, we do not address these other potential grounds
for reversal.

-7-
III. DISCUSSION

A. The Speedy Trial Act

“We apply an abuse of discretion standard to a district court’s decision to

grant an ends-of-justice continuance . . . .” United States v. Gonzales, 137 F.3d

1431, 1433 (10th Cir. 1998). This court reviews de novo, however, the district

court’s compliance with the legal requirements of the Speedy Trial Act. United

States v. Thompson, 524 F.3d 1126, 1131 (10th Cir. 2008). The district court’s

factual findings are reviewed for clear error. Id. “The Speedy Trial Act is

designed to protect a criminal defendant’s constitutional right to a speedy trial

and serve the public interest in bringing prompt criminal proceedings.” Id. It

requires that a criminal trial commence within seventy days of the filing of the

indictment or information or the defendant’s appearance, whichever occurs last. 5

18 U.S.C. § 3161(c)(1). Excluded from the seventy-day requirement is:

Any period of delay resulting from a continuance granted by any
judge on his own motion or at the request of the defendant or his
counsel or at the request of the attorney for the Government, if the
judge granted such continuance on the basis of his findings that the
ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.

Id. § 3161(h)(7)(A).

In order to exclude this time pursuant to the ends-of-justice provision,

however, the Speedy Trial Act requires that “the court sets forth, in the record of

5
The later event here was Toombs’s first appearance in court, which was his
arraignment on May 2, 2006.

-8-
the case, either orally or in writing, its reasons for finding that the ends of justice

served by the granting of such continuance outweigh the best interests of the

public and the defendant in a speedy trial.” Id. In doing so, the judge must

consider:

(i) Whether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible, or result in a miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due to the
number of defendants, the nature of the prosecution, or the existence
of novel questions of fact or law, that it is unreasonable to expect
adequate preparation for pretrial proceedings or for the trial itself
within the time limits established by this section.

(iii) Whether, in a case in which arrest precedes indictment,
delay in the filing of the indictment is caused because the arrest
occurs at a time such that it is unreasonable to expect return and
filing of the indictment within the period specified in section
3161(b), or because the facts upon which the grand jury must base its
determination are unusual or complex.

(iv) Whether the failure to grant such a continuance in a case
which, taken as a whole, is not so unusual or so complex as to fall
within clause (ii), would deny the defendant reasonable time to
obtain counsel, would unreasonably deny the defendant or the
Government continuity of counsel, or would deny counsel for the
defendant or the attorney for the Government the reasonable time
necessary for effective preparation, taking into account the exercise
of due diligence.

Id. § 3161(h)(7)(B)(i)-(iv).

“Th[e] [ends-of-justice] exception to the otherwise precise requirements of

the Act was meant to be a rarely used tool for those cases demanding more

flexible treatment.” United States v. Doran, 882 F.2d 1511, 1515 (10th Cir.

-9-
1989) (quotation omitted). The requirement that the district court make clear on

the record its reasons for granting an ends-of-justice continuance serves two core

purposes. Id. It both ensures the district court considers the relevant factors and

provides this court with an adequate record to review. Id. “Failure to address

[the reasons] on the record creates the unnecessary risk of granting continuances

for the wrong purposes, and encourages overuse of this narrow exception.” Id.

Thus, “the record must clearly establish the district court considered the proper

factors at the time such a continuance was granted.” Gonzales, 137 F.3d at 1433.

“In setting forth its findings, however, the district court need not articulate facts

which are obvious and set forth in the motion for the continuance itself.” United

States v. Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993) (quotation omitted).

While the preferred practice is for the district court to make its findings on the

record at the time the continuance is granted, findings made contemporaneously

with the granting of the continuance may be entered on the record after the fact if

done before the court rules on a defendant’s motion to dismiss. Zedner v. United

States, 547 U.S. 489, 506-07 & n.7 (2006).

Toombs claims the district court made insufficient findings as to the seven

continuances expressly granted pursuant to the ends-of-justice provision. Fifty

days in the approximately twenty-two month period between Toombs’s

arraignment and trial date were not excluded by the district court for Speedy Trial

-10-
Act purposes. 6 Because pursuant to each of the seven challenged continuances

the district court excluded over twenty days, if any one of the continuances was

granted in error, a violation of the seventy-day requirement of the Speedy Trial

Act would exist. 18 U.S.C. § 3161(c)(1).

The record is particularly sparse with regard to the district court’s findings

underlying two of the ends-of-justice continuances. The May 1, 2007, order

states in relevant part:

The Court, having been well and duly advised in the premises,
finds that the motion should be granted in order for the defense to
adequately prepare and for the reasons stated in the motion.

The Court further finds that the period of delay resulting from
the continuance granted pursuant to this order shall be excludable
time as provided for in 18 U.S.C. [§ 3161(h)(7)] in that the ends of
justice served by the granting of such continuance outweigh the best
interest of the public and the defendant in a speedy trial.

The motion to which this order refers, filed on April 30, 2007, states that a

continuance is requested on the following grounds:

1. This case is scheduled for Jury Trial commencing May 7,
2007 at 1:30 p.m.

2. That additional discovery has recently been disclosed to
Defendant requiring additional investigation.

3. The Assistant United States Attorney has advised that she
has no objection to this request.

6
The relevant time periods are May 2, 2006, through May 22, 2006, and
August 1, 2006, through August 30, 2006.

-11-
 4. This application for continuance is made in good faith on
the grounds stated and not to vex or harass the Court or the United
States of America.

5. The ends of justice will be served by taking such action
which outweighs the best interest of the public and the defendant in a
speedy trial pursuant to [18 U.S.C. § 3161(h)(7)(A)].

The motion to continue filed July 5, 2007, is in all material respects identical to

the April 30, 2007, motion. Similarly, with the exception of the dates provided,

the district court’s July 10, 2007, order granting the July 5, 2007, motion to

continue is identical to its May 1, 2007, order granting the April 30, 2007, motion

to continue.

In Gonzales, this court considered whether a district court made sufficient

findings under the Speedy Trial Act when it granted an ends-of-justice

continuance to the prosecution. 137 F.3d at 1434-35. In the hearing to set a trial

date, the district court suggested two dates, August 5 and August 19. Id. at 1434.

The prosecutor claimed neither would work because he was going to be out of

town on the days preceding each of the dates, rendering it difficult for him to

prepare for trial. Id. The court suggested a third option, August 26, to which the

prosecutor agreed, but to which the defense objected on Speedy Trial Act

grounds. Id. After briefly questioning the prosecutor about why he would be out

of town for the week preceding August 19, the court again suggested August 5.

Id. The prosecutor stated he had three witnesses scheduled to leave town during

the weeks preceding August 5 and he did not know when they would return. Id.

-12-
Thus, he contended it would be extremely difficult to have the trial on that date.

Id. Based upon this information, the court set the trial date for August 26 and

granted an ends-of-justice continuance excluding the relevant time period. Id.

The written order stated in relevant part that the time was excluded for purposes

of the Speedy Trial Act because the interests of justice outweighed the interest of

the public and the defendant in a speedy trial “based upon the finding that

[government] counsel . . . would be denied the reasonable and necessary time to

prepare for trial, taking into account due diligence, and risks which cause a

potential miscarriage of justice and risk the continuity of [government] counsel.”

Id.

This court considered both the statements made by the prosecutor and

district court during the hearing and the content of the later written order, and

concluded the district court failed to create an adequate record of its reasons for

granting the continuance. Id. at 1434-35. This court noted a number of problems.

Id. First, the district court had not inquired into the nature or complexity of the

case at issue as required by § 3161(h)(7)(B)(ii) and (iv). Id. at 1434. In addition,

there was no inquiry as to whether continuity of counsel was necessary or whether

the case could be tried by other government counsel. Id. at 1434-35 (citing

§ 3161(h)(7)(B)(iv)). There was also no inquiry concerning the reason the

prosecutor would be out of town during the week preceding the proposed August

5 trial date, whether counsel’s trip could be rescheduled, or when the witnesses

-13-
would return. Id. at 1435. Finally, there was no mention of how much time the

prosecutor actually needed to prepare for trial or what preparations he had already

made. Id. The court concluded that:

Without this information, we fail to see how the district court
adequately could have determined whether denial of a continuance
would have deprived the prosecutor of “reasonable time necessary
for effective preparation,” 18 U.S.C. § [3161(h)(7)(B)(iv)], let alone
whether the purported reasons for granting the continuance
outweighed the best interests of the public and Gonzales in a speedy
trial.

Id. (emphasis added).

This court also considered a district court’s grant of an ends-of-justice

continuance in Williams. 511 F.3d at 1055-59. The defendant in Williams

requested a continuance on the grounds his new attorney needed additional time

to become familiar with the case. Id. at 1057. The district court noted the

presence of new counsel and granted the motion to continue, excluding the

relevant time period for purposes of the Speedy Trial Act. Id. This court first

acknowledged the district court need not articulate facts that are obvious and set

forth in the motion to continue in granting an ends-of-justice continuance. Id. It

nonetheless concluded the district court’s findings were insufficient for purposes

of the Speedy Trial Act, stating:

Although the district court in this case mentioned the presence of
new counsel in its November 22 order, it did not issue findings
specifically addressing Mr. Williams’s stated grounds for a
continuance, i.e., his new counsel’s claimed need for time to
familiarize himself with the case. Nor did the district court

-14-
 otherwise comment on the issue of trial preparation time.
Furthermore, the court’s order does not so much as hint that it
weighed the proper factors under the Act. Indeed, the court failed to
cite the Act’s ends-of-justice provision. Thus, we conclude that the
district court did not properly exclude [the relevant periods] under
the Act.

Id. at 1058.

Our decisions in Williams and Gonzales indicate that the record, which

includes the oral and written statements of both the district court and the moving

party, must contain an explanation of why the mere occurrence of the event

identified by the party as necessitating the continuance results in the need for

additional time. 7 Williams, 511 F.3d at 1058; Gonzales, 137 F.3d at 1434-35. A

record consisting of only short, conclusory statements lacking in detail is

insufficient. For example, it is insufficient to merely state that counsel is new

and thus needs more time to adequately prepare for trial or that counsel or

witnesses will be out of town in the weeks preceding trial and therefore more time

is needed to prepare for trial. Williams, 511 F.3d at 1058; Gonzales, 137 F.3d at

1434-35. Simply identifying an event, and adding the conclusory statement that

the event requires more time for counsel to prepare, is not enough. Williams, 511

F.3d at 1058; Gonzales, 137 F.3d at 1434-35.

7
While the government and dissent seek to distinguish Williams on the basis
that, unlike here, the district court in Williams did not cite to the ends-of-justice
provision of the Speedy Trial Act, it is clear from the portion of the opinion
quoted above that the lack of a citation to the ends-of-justice provision was not
the only reason the record in Williams was found to be insufficient.

-15-
 Under this standard, the reasoning contained in the record for the May and

July 2007 ends-of-justice continuances is inadequate. The sole explanation

contained in the record for each of the continuances is that discovery was recently

disclosed and counsel consequently needed additional time to prepare for trial.

The district court here, much like the district courts in Williams and Gonzales,

failed to inquire about or consider whether the respective events at issue

necessarily required additional preparation. There is no indication from either

Toombs’s motions or the district court’s orders as to the nature of the recently

disclosed discovery, the relevance or importance of the discovery, or why the

district court thought it proper to grant an approximately two-month continuance

in each of the orders. Instead, the court twice erroneously relied upon conclusory

statements lacking both detail and support in granting the continuances.

The case relied upon by the government on appeal and the district court in

denying Toombs’s motion to dismiss, Occhipinti, 998 F.2d 791, is factually

distinguishable from the instant case. In Occhipinti, the government sought a

continuance on the grounds that it needed more time to prepare for trial. Id. at

797. In its motion to continue, the government explained that it expected the

defendant’s trial to last for ten to fifteen days and that over the next two months

counsel was scheduled for three conflicting trials. Id. The motion provided the

dates of those trials and the length of time the government expected each trial to

last. Id. The motion further stated that because of the conflicting trials, the

-16-
government would not have adequate time to prepare for the trial at issue. Id. In

its order, the district court concluded a continuance was necessary to give the

government time to prepare and excluded the time pursuant to the ends-of-justice

provision of the Speedy Trial Act. Id. This court concluded that the record was

sufficient, although a “more thorough and explicit articulation might have better

facilitated our review of the district court’s decision.” Id. at 798.

Based upon our holdings in Gonzales and Williams, it is safe to say that in

Occhipinti the district court made the minimal findings necessary for this court to

conclude the record was sufficient under the ends-of-justice provision of the

Speedy Trial Act. See Williams, 511 F.3d at 1058 (noting that this court “did not

even find Occhipinti’s [findings] to be optimally thorough and explicit”

(quotation omitted)); Gonzales, 137 F.3d at 1434-35. In Occhipinti, the

government’s listing of the dates for each of the three other trials and their

expected durations provided an explanation, although not optimally detailed, of

why these events, the trials, would require additional time for the government to

prepare for the upcoming trial, which it expected to last for ten to fifteen days.

Here, unlike in Occhipinti, there is no absolutely no explanation in the record for

why the events, receiving newly disclosed discovery, resulted in defense counsel

requiring additional time to prepare for trial. There was no discussion whatsoever

in the May and July 2007 motions and orders regarding the nature or importance

of the disclosed discovery or the nature of the further investigation allegedly

-17-
required and no hearings took place. Thus, the record does not satisfy even the

minimal threshold set forth in Occhipinti.

Were the Speedy Trial Act to be applied as proposed by the dissent, this

court’s precedent and the words of Congress would be eviscerated. According to

the dissent, all that is required for the granting of an ends-of-justice continuance

is what occurred in this case: a motion containing only conclusory statements

indicating as generally as possible in two one-sentence paragraphs that the

disclosure of new evidence requires additional investigation and the ends of

justice would be served by a continuance. As in this case, there is no need for a

hearing. Nor is there a need to inquire as to the nature, extent, or quantity of the

new evidence. 8 Finally, there is no need to inquire even as to the amount of time

needed.

The dissent presents no authority for the ease with which it proposes to

authorize continuances under the Speedy Trial Act. The approach advanced by

the dissent would encourage greater reliance on the narrow ends-of-justice

8
The dissent states our precedent does not require inquiry. Dissenting Op.
at 7. United States v. Gonzales, however, was explicitly premised on the
improper lack of inquiry by the district court regarding the details underlying the
claimed need for an ends-of-justice continuance. 137 F.3d 1431, 1434 (10th Cir.
1998) (concluding a speedy trial violation occurred based on the “complete lack
of inquiry” by the district court as to certain factors underlying the continuance
request and inquiry that was not “adequate” as to other considerations). The
dissent also suggests that to make inquiry of defense counsel regarding the
general nature of the newly disclosed discovery would somehow risk tipping off
the prosecution. Dissenting Op. at 7. That risk, however, is non-existent when, as
here, the new evidence was provided by the prosecution itself.

-18-
provision, contrary to precedent. Doran, 882 F.2d at 1515 (“This exception to the

otherwise precise requirements of the Act was meant to be a rarely used tool for

those cases demanding more flexible treatment.” (quotation omitted)). This case

is illustrative. Nine trial continuances were granted over the twenty-months from

arraignment to trial, seven of which were premised on the ends-of-justice

provision. 9

While the dissent attributes some significance to the fact that “most of the

delays in this case [were] attributable to the defendant,” Dissenting Op. at 3,

defense responsibility for continuances does not unwind Speedy Trial Act

violations. The Speedy Trial Act was intended not only to protect the interests of

defendants, but was also “designed with the public interest firmly in mind.”

Zedner, 547 U.S. at 501. The ends-of-justice provision expressly mandates that

the district court articulate “its reasons for finding that the ends of justice served

by the granting of such continuance outweigh the best interests of the public and

the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A) (emphasis added). It

is the responsibility of not only the district court, but also the government, to

protect the interests of the public by ensuring adherence to the requirements of

the Speedy Trial Act. See United States v. Wright, 6 F.3d 811, 814 (D.C. Cir.

1993) (“[T]he Government bears a large part of the responsibility for bringing a

9
If any one of the seven continuances were erroneously granted, a Speedy
Trial Act violation occurred.

-19-
defendant to trial within the statutory period . . . .”). Thus, the district court and

government are no less responsible under the Speedy Trial Act merely because it

is a defendant who requests a continuance. See Zedner, 547 U.S. at 493-95, 507

(concluding a violation of the Speedy Trial Act occurred when the district court

failed to make adequate factual findings in granting an ends-of-justice

continuance requested by the defendant). The government was passive, it never

objected to any of the continuances or so much as inquired before the court into

their necessity. By failing to make a record upon which adequate findings could

be based, the district court failed to protect the public’s interest in a speedy trial

as required by the Speedy Trial Act and the clear application of that Act

necessitates reversal of the district court’s denial of the motion to dismiss.

B. The Sixth Amendment Right to a Speedy Trial

Because a district court has discretion to dismiss the case with or without

prejudice upon a Speedy Trial Act violation, we also consider Toombs’s Sixth

Amendment speedy trial claim, which, if successful, would require the district

court to dismiss the case with prejudice. See Barker v. Wingo, 407 U.S. 514, 522

(1972) (“The amorphous quality of the [Sixth Amendment speedy trial] right also

leads to the unsatisfactorily severe remedy of dismissal of the indictment when

the right has been deprived. This is indeed a serious consequence because it

means that a defendant who may be guilty of a serious crime will go free, without

having been tried.”).

-20-
 “The Sixth Amendment guarantees all criminal defendants the right to a

speedy trial . . . .” United States v. Yehling, 456 F.3d 1236, 1243 (10th Cir.

2006). In determining whether a defendant’s Sixth Amendment right to a speedy

trial has been violated, a court must balance four factors: (1) the length of delay;

(2) the reason for delay; (3) the defendant’s assertion of his right; and (4) any

prejudice to the defendant. Barker, 407 U.S. at 530. No one of the factors is

necessary or sufficient to conclude a violation has occurred. Id. Instead, the

factors are related and must be considered together along with other relevant

circumstances. United States v. Gomez, 67 F.3d 1515, 1521 (10th Cir. 1995).

“The first factor, length of delay, functions as a triggering mechanism” and “the

remaining factors are examined only if the delay is long enough to be

presumptively prejudicial.” Yehling, 456 F.3d at 1243 (quotation omitted).

The parties agree that the length of delay is presumptively prejudicial,

requiring this court to consider the other three factors in the analysis. As to the

second factor, reason for the delay, seven of the nine continuances granted by the

district court in this case were requested by Toombs. In addition, as the district

court noted and the government points out, of the 671 days between the filing of

Toombs’s indictment and the start of his trial, 423 were attributable to motions

filed by Toombs. Delays attributable to the defendant do not weigh in favor of a

Sixth Amendment violation. United States v. Dirden, 38 F.3d 1131, 1138 (10th

Cir. 1994). Because Toombs’s actions were the primary cause of the delay, this

-21-
factor weighs heavily against Toombs. See United States v. Abdush-Shakur, 465

F.3d 458, 465 (10th Cir. 2006) (“We find little merit in defendant’s assertion of

his Sixth Amendment right to a speedy trial in the wake of the government’s

legitimate request for a continuance when the defendant has sat on his hands for

seven months and requested several continuances of his own.”).

As to the third factor, this court has stated that “the defendant’s assertion of

the speedy trial right is entitled to strong evidentiary weight in determining

whether the defendant is being deprived of the right.” Dirden, 38 F.3d at 1138

(quotation omitted). Toombs did not assert his Sixth Amendment right to a

speedy trial until his October 29, 2007, motion to sever. By the time Toombs

asserted his Sixth Amendment right, eight of the nine continuances, seven of

which were requested by him, had already been granted and approximately

seventeen months had passed since his first court appearance. Thus, this factor

also weighs heavily against Toombs. See United States v. Batie, 433 F.3d 1287,

1292 (10th Cir. 2006) (“[Defendant’s] persistent requests for continuances . . .

scarcely demonstrate a desire for a speedier process.”).

Finally, the fourth factor considers prejudice to the defendant resulting

from the delay. Yehling, 456 U.S. at 1244. In Doggett v. United States, the

Supreme Court held that if there is extreme delay, the defendant need not present

specific evidence of prejudice and instead may rely on the presumption of

prejudice created by the extreme delay. 505 U.S. 647, 655 (1992). The Doggett

-22-
Court concluded extreme delay existed when over eight years, six of which were

attributable to the government, had passed between the defendant’s indictment

and trial. Id. at 657-58. The twenty-two month delay, here, however, the vast

majority of which was attributable to the defense, is far shorter than the delay in

Doggett and does not constitute extreme delay. See United States v. Serna-

Villarreal, 352 F.3d 225, 232 (5th Cir. 2003) (“Indeed, this Court and others

generally have found presumed prejudice only in cases in which the

post-indictment delay lasted at least five years.”). Thus, in determining whether

Toombs has made a particularized showing of prejudice this court is to consider

the three interests the speedy trial was designed to protect: (1) prevention of

oppressive pretrial incarceration, (2) minimization of the accused’s anxiety and

concern, and (3) minimization of the possibility that a delay will hinder the

defense. Barker, 407 U.S. at 532. The most important of these interests is the

impairment or hindrance of the defense. Id. The individual claiming the Sixth

Amendment violation has the burden of showing prejudice. Yehling, 456 F.3d at

1245. Furthermore, “once a defendant has been convicted, the rights of society

increase in proportion to the rights of the defendant. Post-conviction prejudice

therefore must be substantial and demonstrable.” Id. (quotation and citation

omitted).

Even assuming the first two interests, prevention of oppressive pretrial

incarceration and minimization of the accused’s anxiety and concern, weigh in

-23-
Toombs’s favor, the third, and most important, does not. Toombs argues that the

delay hindered his defense because during the relevant time period the

government was able to locate and procure the testimony of his co-defendant and

the primary witness against him, Arlynda Osborn, rendering the government’s

case much stronger. Toombs does not, however, claim his defense was hindered

in the sense that he was not able to defend the charges against him to the extent

he desired. This is not a situation where, for example, as a result of the delay, the

defense no longer had access to certain evidence or could no longer use a witness

because that witness died before trial. See Jackson v. Ray, 390 F.3d 1254, 1264

(10th Cir. 2004). Thus, Toombs’s defense has not been hindered in the sense

envisioned by the Barker analysis. See Castro v. Ward, 138 F.3d 810, 820 (10th

Cir. 1998) (concluding no prejudice existed where “despite [petitioner’s] general

allegation that the passage of time made it more difficult for him to present a

defense . . . [h]e has not claimed that any specific witness or evidence was

somehow rendered unavailable or less persuasive because of the passage of

time”).

In addition, Toombs’s multiple requests for continuances contributed

significantly to the government’s ability to locate and arrest Osborn. Three

continuances, all requested by Toombs, were granted before the government

sought additional time to locate Osborn. Moreover, an additional four

continuances requested by Toombs were granted between the government’s first

-24-
motion to continue in order to locate Osborn and the government’s second motion

to continue upon arresting Osborn. Toombs’s motions to continue therefore

provided the government with the time it needed to locate and arrest Osborn.

Since the hindrance to the defense is the most important interest, and the defense

was not significantly hindered here, the prejudice factor does not weigh in favor

of Toombs. See Batie, 433 F.3d at 1293 (“Absent extraordinary circumstances,

Barker counsels us not to find a violation of the right to a speedy trial when the

defendant’s actions indicate he had no desire for a speedy trial.”).

Although the delay here was presumptively prejudicial, the second and

third factors in the Barker analysis weigh heavily against Toombs, and the fourth

does not weigh in his favor. In balancing the factors, it is clear Toombs has not

made out a Sixth Amendment speedy trial violation. We therefore affirm the

district court’s denial of the motion to dismiss on Sixth Amendment speedy trial

grounds.

IV. CONCLUSION

For the reasons discussed above, we affirm the district court’s denial of the

motion to dismiss on Sixth Amendment speedy trial grounds, reverse the denial

of the motion to dismiss on Speedy Trial Act grounds, and remand for

proceedings consistent with this opinion. On remand, the district must decide

whether to dismiss the indictment with or without prejudice. Williams, 511 F.3d

at 1049 (“The sanction for violation of the Act is mandatory dismissal of the

-25-
indictment. 18 U.S.C. § 3162(a)(2). However, the district court retains broad

discretion whether to dismiss the indictment with or without prejudice.”

(quotations omitted)).

-26-
United States v. Toombs, 08-3278

TYMKOVICH, J., dissenting in part; concurring in part.

Because I conclude this case complied with the Speedy Trial Act and that

the district court made adequate findings supporting the various ends-of-justice

continuances, I respectfully dissent. I concur with the majority’s disposition of

the Sixth Amendment speedy trial claim.

I.

“[C]riminal cases vary widely and . . . there are valid reasons for greater

delay in particular cases”; therefore, the Speedy Trial Act offers “flexibility” by

including “a long and detailed list of periods of delay that are excluded in

computing the time within which trial must start.” Zedner v. United States, 547

U.S. 489, 497 (2006). Examples of relevant exclusions include a “reasonable

period of delay” attributable to a proceedings of a co-defendant, 18 U.S.C.

§ 3161(h)(6), and delay attributable to an ends-of-justice continuance. 18 U.S.C.

§ 3161(h)(7).

“Much of the Act’s flexibility is furnished by § 3161(h)[(7)], which

governs ends-of-justice continuances.” Zedner, 547 U.S. at 498. This provision

excludes “[a]ny period of delay resulting from a continuance granted by any judge

. . . on the basis of . . . findings that the ends of justice served by taking such

action outweigh the best interest of the public and the defendant in a speedy trial.”
§ 3161(h)(7). It “gives the district court discretion—within limits . . .— to

accommodate limited delays for case-specific needs.” Zedner, 547 U.S. at 499.

As we have repeatedly emphasized, in granting an ends-of-justice

continuance, the district court must set forth, “in the record of the case, either

orally or in writing, its reasons for finding that the ends of justice served by the

granting of such continuance outweigh the best interests of the public and the

defendant in a speedy trial.” § 3161(h)(7)(A); United States v. Williams, 511 F.3d

1044, 1056 (10th Cir. 2007) (“The Tenth Circuit [ ] recognizes the importance of

enunciating the ends of justice findings.”) (citation omitted). “[I]t must be clear

from the record that the trial court struck the proper balance when it granted the

continuance.” Williams, 511 F.3d at 1056 (citing United States v. Spring, 80 F.3d

1450, 1456 (10th Cir. 1996)). Although the court’s consideration of the factors

must be contemporaneous with granting the continuance, the court may delay in

entering its findings on the record. See, e.g., United States v. Hill, 197 F.3d 436,

441 (10th Cir. 1999).

Our cases do not require the court to rehash facts which are obvious or

adequately set forth in the motion for the continuance itself. United States v.

Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993). Moreover, although we require an

adequate explanation of the grounds for granting a continuance, the district court’s

ends-of-justice findings need only be minimally sufficient to allow judicial review.

See id. at 798 (noting that a more thorough articulation would have been better,

-2-
but concluding the findings were sufficient); see also Spring, 80 F.3d at 1457

(finding that although the district court’s oral ends-of-justice findings were “not a

model of clarity,” they were sufficient, and observing that “what is clear is that the

reason for granting the continuance is that new counsel would be unable to prepare

for the upcoming trial”).

I disagree with the majority that this case suffers from the infirmities in

Williams, 511 F.3d at 1056–58 or United States v. Gonzales, 137 F.3d 1431,

1433–35 (10th Cir. 1998). Instead, I conclude this case comported with the

Speedy Trial Act’s requirements and that the district court made adequate findings

supporting the various ends-of-justice continuances. I would therefore affirm.

I also hasten to add that most of the delays in this case are attributable to the

defendant. Seven of nine continuances were filed by defense counsel, accounting

for approximately two-thirds of the trial delay. While that fact does not overcome

the public’s interest in a speedy trial, the public’s concern is mitigated where

defense counsel contends that the additional time is necessary for an adequate

defense at trial. The public has little interest in defense counsel rushing to trial

inadequately prepared.

II.

The majority takes issue with the district court’s two continuances of May 1,

2007 and July 10, 2007. As to each, defense counsel filed a motion seeking a

continuance because additional discovery had been recently disclosed to the

-3-
defendant which required additional investigation. In the two orders, the court

observed that it had been provided sufficient information in support of the

continuances, and found they should be granted “in order for the defense to

adequately prepare and for the reasons stated in the motion[s].” Aplt. App. at 52,

56. The court further found that the period of delay resulting from the

continuances would be excludable under the ends-of-justice provision in that the

need for the continuance outweighed the interest of the public and the defendant in

a speedy trial.

In my view, both of these orders are sufficient under our case law. The

district court knew of the defendant’s statutory speedy trial rights and provided a

sufficient record that it had conducted the proper balancing when it granted the

continuances. Whether the failure to grant a continuance would deny defense

counsel reasonable time for necessary preparation is an appropriate factor for the

court to consider in making an ends-of-justice determination. See

§ 3161(h)(7)(B)(iv); see also Williams, 511 F.3d at 1058 (noting that

§ 3161(h)(7)(B)(iv) authorizes a continuance to allow counsel adequate trial

preparation time); Spring, 80 F.3d at 1457 (explaining that adequate preparation

time is a permissible reason for granting a continuance). The court considered this

factor, and was not required to address other factors that did not apply. See

Occhipinti, 998 F.2d at 798 (explaining that the court articulated as the basis for

its conclusion its belief that a continuance was necessary to allow the government

-4-
sufficient time to prepare for trial and that we “do not require district judge’s [sic]

to address those factors that do not apply”). 1

In sum, the court weighed defense counsel’s need for time against the public

and defendant’s interest in a speedy trial, and made sufficient findings. The court

articulated a proper basis for its conclusion that the continuances were appropriate

despite speedy trial interests, and that the need for time to adequately prepare

outweighed those speedy trial interests. The court expressly referenced the

reasons in defense counsel’s motion, and that motion explained that additional

discovery recently had been disclosed to the defendant requiring additional

investigation. The court need not state the obvious, and although more thorough

findings might have been helpful, our precedent does not require more. See

Occhipinti, 998 F.2d at 797–98 (concluding the findings supporting the

continuance were sufficient when the district court recognized the government’s

need for time to prepare, endorsed the reasons the government raised in its motion,

and explicitly stated that “the period of delay resulting from the continuance

granted pursuant to this Order shall be excludable time as provided in 18 U.S.C.

1
The fourth factor, § 3161(h)(7)(B)(iv), instructs courts to consider
“[w]hether the failure to grant such a continuance in a case which, taken as a
whole, is not so unusual or complex as to fall within clause (ii),” would deny
counsel for the defendant reasonable time necessary for effective preparation.
§ 3161(h)(7)(B)(iv) (emphasis added).

-5-
§ 3161(h)[(7)] in that the ends of justice served by the granting of such

continuance outweigh the best interest of the public and the defendant in a speedy

trial”).

This case is distinct from both Williams, 511 F.3d at 1056–58, and

Gonzales, 137 F.3d at 1433, on which the majority relies. First, in Williams, the

district court’s orders did not contain any findings or were especially conclusory,

the court did not hint that it weighed the relevant factors, and, finally, the court

did not even cite the Act’s ends-of-justice provision. 511 F.3d at 1057–58.

Unlike here, none of the orders at issue in Williams included findings addressing

Williams’s stated grounds for a continuance—his new counsel’s claimed need for

time to familiarize himself with the case, or the need for more time to prepare for

trial. Id. at 1058. Instead, the court merely noted the presence of new counsel and

granted the continuance. Id. In contrast, in this case the court specifically

recognized counsel’s need for additional time to prepare, referenced the reasons

outlined in counsel’s motion—namely that new discovery had arrived requiring

additional investigation—and concluded the continuance served the ends of

justice. Although the majority sees it differently, Williams is readily

distinguishable from this case, and not solely because the court there failed to cite

the ends-of-justice provision.

Gonzales, too, is distinct from this case. There, the prosecutor argued he

would be out of town on days preceding prospective trial dates, which would

-6-
render it difficult for him to prepare for trial. 137 F.3d at 1434. As to an

additional proposed trial date, the prosecutor stated he had witnesses scheduled to

leave town during the weeks preceding that date and he did not know when they

would return. Id. The court then granted an ends of justice continuance because

counsel would be denied reasonable and necessary time to prepare for trial. Id.

We found this insufficient, emphasizing the lack of inquiry into whether the case

could be tried by another prosecutor, why the prosecutor would be out of town,

whether the trip could be rescheduled, when witnesses would return, the

complexity of the case, or what preparations had already been made. Id. at

1434–35.

In contrast, here, defense counsel informed the court that additional

discovery recently had been disclosed, and that the additional discovery required

further investigation. Even if significant preparations had already been made prior

to the arrival of the discovery, new discovery could require additional preparation,

and counsel here attested that the discovery did in fact require more investigation.

Although the majority appears to mandate that the district court inquire into the

exact nature of the additional discovery, neither the Act nor our precedent requires

this. And any inquiry should be contextual. For instance, defense counsel may

not want to tip off the prosecution why an additional investigation is necessary.

Moreover, the very reason additional time is necessary is that counsel needs time

to figure out the effect of new discovery on trial strategy and to investigate

-7-
potential leads created by that discovery. Thus, counsel seeking additional time

may not yet know the full implications of the discovery. It is enough that defense

counsel, as an officer of the court, represented to the court that recently disclosed

discovery merited additional investigation. Nothing on this record suggests the

request lacked merit or was made in bad faith, and I would leave the policing of

the outer limits of an ends-of-justice continuance to the sound discretion of the

district court.

I nonetheless do not mean to imply that it would not have been helpful for

the court to inquire into the amount of discovery, or into counsel’s impressions of

it. I merely would hold that although the court’s findings and inquiries could have

been better, they were sufficient. Indeed, the court recognized counsel’s need for

additional time, referenced the reasons elucidated in counsel’s motion, and

explicitly concluded that the ends of justice were served by the grant of the

continuance here. The court weighed counsel’s need for time to prepare against

the defendant’s and public’s speedy trial interests, and it was clear from the record

that “the trial court struck the proper balance when it granted the continuance.”

Williams, 511 F.3d at 1056 (citing Spring, 80 F.3d at 1456). Nothing more is

required.

-8-