United States v. Rene Johnson

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 19-1610
___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Rene L. Johnson

lllllllllllllllllllllDefendant - Appellant
____________

Appeal from United States District Court
for the District of North Dakota - Bismarck
____________

Submitted: October 23, 2020
Filed: March 9, 2021
____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
____________

SMITH, Chief Judge.

Rene L. Johnson was indicted for mail fraud, wire fraud, and making false
statements to a federal agent. She made her initial appearance before the district court
on September 15, 2017, but her trial did not begin until October 29, 2018—14 months
after her initial appearance. During this 14-month period, the court ordered four
continuances, the last of which was ordered sua sponte because of a scheduling
conflict. Prior to trial, Johnson moved to dismiss the indictment, alleging violations
of the Speedy Trial Act and her Sixth Amendment right to a speedy trial. The district
court denied the motion. At trial, the jury convicted Johnson of wire fraud. Johnson
appeals, asserting that her rights under the Speedy Trial Act and Sixth Amendment
right to a speedy trial were violated when the district court granted an ends-of-justice
continuance based on general congestion of the court’s calendar. We agree.
Accordingly, we reverse and remand for further proceedings consistent with this
opinion.

I. Background
On September 7, 2017, Johnson was indicted for mail fraud, in violation of 18
U.S.C. § 1341; wire fraud, in violation of 18 U.S.C. § 1343; and making material false
statements to a federal agent, in violation of 18 U.S.C. § 1001. On September 15,
2017, the district court held Johnson’s initial appearance and arraignment; the speedy
trial clock began on this date. See 18 U.S.C. § 3161(c)(1) (requiring trial to begin
within 70 days after a defendant is charged or makes an initial appearance).The
district court scheduled Johnson’s trial for November 14, 2017.

On October 24, 2017, Johnson filed a motion for discovery. On November 3,
2017, the government moved to continue the trial date for up to 120 days and moved
to exclude the delay from the Speedy Trial Act in response to Johnson’s discovery
motion (“first continuance”). The government asserted that the quantity of materials
that Johnson requested could not be reviewed and prepared prior to the trial date.

The district court granted the government’s first continuance motion on
November 6, 2017. The court determined that the government promptly and diligently
acted in bringing the matter to the court’s attention and concluded that “there is good
cause to continue the trial, and ‘the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a speedy trial.’” Order
Granting Government’s Mot. to Continue Trial (“First Continuance Order”) at 1,

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United States v. Johnson, No. 1:17-cr-00186-PDW (D.N.D. 2017), ECF No. 22
(quoting 18 U.S.C. § 3161(h)(7)(A)). The court rescheduled Johnson’s trial for March
27, 2018. It found that “[a]ll time which elapses from the date of this order until trial
shall be excluded from any Speedy Trial Act calculation.” Id. at 2.

On December 18, 2017, the district court denied in part and granted in part
Johnson’s discovery motion.

On February 7, 2018, the government filed a superseding indictment against
Johnson. The superseding indictment added one count of making false statements on
a loan application, in violation of 18 U.S.C. § 1014.

On February 15, 2018, Johnson filed a second discovery motion. Five days
later, on February 20, 2018, the government moved for a 60-day continuance because
an essential witness was unable to travel following surgery and thus unavailable for
trial (“second continuance”). On February 28, 2018, the district court granted the
government’s second continuance motion. It found that “there [was] good cause to
continue the trial, and ‘the ends of justice served by taking such action outweigh[ed]
the best interest of the public and the defendant in a speedy trial.’” Order Granting
Government’s Mot. to Continue Trial (“Second Continuance Order”) at 1, United
States v. Johnson, No. 1:17-cr-00186-PDW (D.N.D. 2018), ECF No. 33 (quoting 18
U.S.C. § 3161(h)(7)(A)). The court rescheduled a three-day trial for June 18, 2018.
It determined that “[a]ll time which elapses from the date of this order until trial shall
be excluded from any Speedy Trial Act calculation.” Id.

On May 21, 2018, the court held a status conference. The parties requested an
additional seven days to try the case—extending the trial time to ten days. The ten-day
trial request conflicted with the court’s trial calendar. On June 11, 2018, the district
court issued an order recognizing that “a scheduling conflict has arisen involving other
obligations of the [c]ourt[,] and the [d]efendant[’s] trial needs to be rescheduled”

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(“third continuance”). Order (“Third Continuance Order”) at 1, United States v.
Johnson, No. 1:17-cr-00186-PDW (D.N.D. 2018), ECF No. 39. The court
acknowledged Johnson’s “constitutional right to a speedy trial,” but it determined that
“briefly delaying the trial will not cause any undue prejudice or harm.” Id. The court
found that “there [was] good cause to continue the trial and that ‘the ends of justice
served by taking such action outweigh[ed] the best interest of the public and the
defendant in a speedy trial.’” Id. (quoting 18 U.S.C. § 3161(h)(7)(A)). The court
rescheduled the anticipated ten-day trial to begin on August 6, 2018. The court
determined that “[a]ll time which elapses from the date of this order until trial shall
be excluded from any Speedy Trial Act calculation.” Id.

Then, on July 10, 2018, the court sua sponte continued the ten-day trial to
October 29, 2018 (“fourth continuance”). Like the June 11 order, the court explained
that “a scheduling conflict has arisen involving other obligations of the [c]ourt, and
the [d]efendant[’s] trial needs to be rescheduled.” Order Continuing Trial (“Fourth
Continuance Order”) at 1, United States v. Johnson, No. 1:17-cr-00186-PDW (D.N.D.
2018), ECF No. 44. The court again recognized Johnson’s speedy trial rights but
determined that the delay would not cause her “any undue prejudice or harm.” Id. As
it did in the June 11 order, the court “excluded from any Speedy Trial Act calculation”
“[a]ll time which elapses from the date of this order until trial.” Id.

Johnson moved to dismiss the indictment based on violations of her right to a
speedy trial under the Sixth Amendment and the Speedy Trial Act. The district court
denied Johnson’s motion to dismiss. The Speedy Trial Act required Johnson’s trial to
begin within 70 days after Johnson made her initial appearance on September 15,
2017. See 18 U.S.C. § 3161(c)(1). But, as the district court noted, “[t]he Act provides
a detailed list of instances that toll the speedy trial clock.” Order Den. Def.’s Mot. to
Dismiss at 5, United States v. Johnson, No. 1:17-cr-00186-PDW (D.N.D. 2018), ECF
No. 58 (citing 18 U.S.C. § 3161(h)). To comply with the Act, the district court kept
tally on the unexcluded days and excluded days. The court determined that 39

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unexcluded days elapsed between Johnson’s initial appearance on September 15,
2017, and the filing of Johnson’s initial discovery motion on October 24, 2017. The
filing of the discovery motion, however, tolled the speedy trial clock until December
18, 2017, when the district court ruled on the discovery motion. Next, the district court
excluded from the speedy trial clock the time period between December 18, 2017, and
June 18, 2018. During this time period, Johnson filed an additional discovery motion,
and the government filed its two continuance motions. Finally, the district court
excluded from the speedy trial clock the time period up to and including the
rescheduled trial date of October 29, 2018. During this time period, the court granted
the parties’ request for an additional seven days to try the case, and the court sua
sponte continued the case “because of a scheduling conflict.” Id. at 7 (citing 18 U.S.C.
§ 3161(h)(7)(A)).

The court rejected Johnson’s argument that it “violated the Speedy Trial Act by
making insufficient findings and granting continuances because of general docket
congestion.” Id. at 8. According to the court, it granted continuances

because of (1) the large amount of discovery involved in this case and
the parties’ need for additional time to prepare for trial; (2) the
unavailability, due to recovery from surgery, of a necessary witness; (3)
the parties’ request for seven additional days of trial; and (4) specific
scheduling conflicts that arose after the Court accommodated the parties’
request for an extended trial.

Id. (emphasis added). The court explained that all of these continuances “served the
ends of justice and outweighed the best interests of the public and Johnson in a speedy
trial.” Id. at 10.

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 The court denied Johnson’s contention that it granted continuances “merely
because of ‘general congestion of the court’s calendar’ as prohibited by Section
3161(h)(7),” stating:

Admittedly, the Court has a congested calendar. The oil boom in North
Dakota dramatically increased the number of cases before this Court.
Further, the Judicial Conference has declared a judicial emergency for
this District, which has only one active judge and no senior status judges.
But the delay in this case was not due to general docket congestion.
Specific conflicts arose when it became apparent that the parties needed
more time to try their case. Rather than forcing the parties to try the
matter in summary fashion in three days, the Court found that
accommodating the parties’ request served the ends of justice.

Pursuant to this District’s Speedy Trial Plan, which complies with
the Speedy Trial Act and Federal Rule of Criminal Procedure 50, the
Court set the matter for trial on August 6, 2018. Roughly forty-nine
different trials had been set during that time frame at one time or
another. The Court cannot try more than one case at a time. Under this
District’s Speedy Trial Plan, when compliance with the Plan’s time limit
is not possible, the judge to whom a case is assigned may transfer the
case to another member of the Court. Because this Court has no other
judges, active or otherwise, the undersigned attempted to recruit other
judges from other districts but was unsuccessful and reset the trial date
to October 29, 2018. This District’s Speedy Trial plan also requires the
Court to give preference to defendants who are in custody while awaiting
trial. Because Johnson was released on bond, and due to the length of her
trial, the Court tried a criminal case where the defendant had been
detained for 117 days prior to his trial on August 6, 2018. That
defendant was ultimately acquitted of all charges. The Court’s
decision—that delaying Johnson’s trial on August 6, 2018, served the
ends of justice and outweighed the best interests of the public and
Johnson in a speedy trial—did not violate the Speedy Trial Act or the
interests it was meant to protect. The undersigned was simply not able to

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 try two criminal cases on August 6, 2018, and had no other alternatives
available.

Id. at 9–10 (emphases added) (footnotes and citations omitted).

The district found no violation of Johnson’s rights under the Speedy Trial Act
or under the Sixth Amendment. The district court denied Johnson’s motion to dismiss.

Johnson proceeded to trial on October 29, 2018. The jury convicted her of wire
fraud but acquitted her on the remaining three counts. She was sentenced to time
served.

II. Discussion
On appeal, Johnson argues that the district court erred in denying her motion
to dismiss based on violations of the Speedy Trial Act and her Sixth Amendment right
to a speedy trial.

“We review the district court’s findings of fact for clear error but review its
legal conclusions de novo.” United States v. Williams, 557 F.3d 943, 948 (8th Cir.
2009). We review “Sixth Amendment and Speedy Trial Act challenges for delay
. . . independently of one another.” Id. (quoting United States v. Sprouts, 282 F.3d
1037, 1041 (8th Cir. 2002)).

A. Speedy Trial Act
As to the Speedy Trial Act violation, Johnson maintains that the 70-day time
period within which to bring her to trial expired at least 21 days prior to trial. She
notes that 39 nonexcludable days elapsed by the time of the fourth continuance.1 She

1
Johnson does not challenge the first continuance that the government sought
and the district court granted. See Appellant’s Br. at 18 (“On November 3, 2017,

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maintains that the 52-day delay occasioned by this final continuance was not
excludable under the Act. Because she was not brought to trial within the 70-day
deadline, Johnson asserts that her conviction must be reversed. Johnson requests that
this court dismiss her conviction with prejudice.

The government asks this court to exclude the District of North Dakota’s
congested court docket and its resulting judicial emergency from § 3161(h)(7)(C)’s
ban on granting continuances for “general congestion of the court’s calendar.”

Under the Speedy Trial Act, a trial must “begin within 70 days of the filing of
an information or indictment or the defendant’s initial appearance.” Zedner v. United
States, 547 U.S. 489, 497 (2006) (citing 18 U.S.C. § 3161(c)). However, “the Act
recognizes that criminal cases vary widely and that there are valid reasons for greater
delay in particular cases.” Id. Congress included in the Act “a long and detailed list
of periods of delay that are excluded in computing the time within which trial must
start” “[t]o provide the necessary flexibility” in criminal cases. Id. (citing 18 U.S.C.
§ 3161(h)).

. . . the Government moved for continuance. The District Court granted the
continuance on November 6, 2017. The interval between motion and order is excluded
under 18 U.S.C. § 3161(h)(1)(D).” (emphasis added) (citations omitted)). But Johnson
does challenge the district court’s grant of the second continuance based on witness
unavailability. Id. at 18–19. Johnson also asserts that the government’s discovery
violations caused the parties to request an additional seven days of trial and the
resulting third continuance. Id. at 19. The government conceded at oral argument that
if the fourth continuance is not for an allowable purpose, a Speedy Trial Act violation
exists. Oral Arg. at 13:27–13:57. We will limit our analysis to the fourth continuance,
which we find dispositive.

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 Relevant to the present case, § 3161(h)(7)(A)2

permits a district court to grant a continuance and to exclude the
resulting delay if the court, after considering certain factors, makes
on-the-record findings that the ends of justice served by granting the
continuance outweigh the public’s and defendant’s interests in a speedy
trial. This provision gives the district court discretion—within limits and
subject to specific procedures—to accommodate limited delays for
case-specific needs.

Id. at 498–99.

When a district court grants an ends-of-justice continuance, “it must ‘se[t] forth,
in the record of the case, either orally or in writing, its reasons’ for finding that the
ends of justice are served and they outweigh other interests.” Id. at 506 (alteration in
original) (quoting 18 U.S.C. § 3161(h)(7)(A)). The court must make the findings, “if
only in the judge’s mind, before granting the continuance.” Id. However, the district
court need only put those findings “on the record by the time a district court rules on
a defendant’s motion to dismiss under § 3162(a)(2).” Id. at 507; see also United States
v. Adejumo, 772 F.3d 513, 522 (8th Cir. 2014) (“[W]e have previously held that the
district court is not required to make a contemporaneous record of its ends-of-justice
findings.”).

The Act sets forth factors the court must consider in deciding whether to grant
an ends-of-justice continuance. See 18 U.S.C. § 3161(h)(7)(B). But “[n]o continuance
[under § 3161(h)(7)(A)] shall be granted because of general congestion of the court’s
calendar, or lack of diligent preparation or failure to obtain available witnesses on the
part of the attorney for the Government.” Id. § 3161(h)(7)(C) (emphasis added). “The
prohibition recognizes that the entire structure of the Speedy Trial Act is intended to
eliminate delays caused by crowded dockets.” United States v. Nance, 666 F.2d 353,

2
Formerly 18 U.S.C. § 3161(h)(8)(A).

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356 (9th Cir. 1982). An “‘ends of justice’ continuance cannot be granted simply to
serve the court’s own scheduling needs, as opposed to the needs of the parties.”
United States v. Gallardo, 773 F.2d 1496, 1503 (9th Cir. 1985).

While this court has not addressed the Act’s prohibition on granting a
continuance for general congestion, we have previously addressed the impact of a
court’s congested calendar on a defendant’s Sixth Amendment right to a speedy trial,
stating:

Where a multiple-judge court uses the individual calendar system, all
judges must share responsibility for the prompt disposition of criminal
cases, must employ a team approach to those cases, and, when necessary,
must reassign them in order that they may be tried according to the
commands of the Sixth Amendment and Criminal Rules 48(b) and 50.
If a judge is otherwise long committed in another case or is delayed in
getting to the criminal cases on his calendar by reason of illness,
personal misfortune or press of other business, this obviously does not
serve to toll the enforcement of the right of a defendant awaiting trial on
that judge’s criminal calendar.

Hodges v. United States, 408 F.2d 543, 551–52 (8th Cir. 1969) (Blackmun, J.).

And our sister circuits that have addressed general congestion under the
Act3have held “that a continuance granted simply because of general congestion of the

3
See, e.g., United States v. Reese, 917 F.3d 177, 183 (3d Cir. 2019) (holding that
because the district court had already decided to postpone trial due to its own
schedule, its sua sponte continuance could not be excluded under Speedy Trial Act on
basis that the court’s calendar would not accommodate the trial); United States v.
Ramirez, 788 F.3d 732, 735 (7th Cir. 2015) (concluding that hearing transcript
strongly suggested that court’s decision to continue was based on its crowded
calendar, “a factor wholly impermissible for consideration in support of an ends of
justice continuance,” and, therefore, the six-month delay was not properly excluded
from the speedy trial clock); United States v. O’Connor, 656 F.3d 630, 636 (7th Cir.
2011) (determining that the district court erred in excluding certain days because the
“delay was attributable to the court’s scheduling problems, and the Act explicitly
prohibits the court from excluding time based on ‘general congestion of the court’s

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court’s calendar” “in direct response to [court’s] own crowded dockets” is not
excludable under the Act. Gallardo, 773 F.2d at 1505 (quotation omitted).4

Here, the district court sua sponte granted a fourth continuance due to “a
scheduling conflict [that] ha[d] arisen involving other obligations of the [c]ourt.”
Fourth Continuance Order at 1. In denying Johnson’s motion to dismiss, the court
admitted that it “ha[d] a congested calendar” complicated by “a judicial emergency
for [the] District, which ha[d] only one active judge and no senior status judges.”
Order Den. Def.’s Mot. to Dismiss at 9. The court’s own scheduling conflicts

calendar’” (quoting 18 U.S.C. § 3161(h)(7)(C))); United States v. Johnson, 120 F.3d
1107, 1111–12 (10th Cir. 1997) (holding that continuance granted by district court did
not constitute excludable time under Speedy Trial Act, and trial thus commenced
outside statutory speedy trial period, where district court’s reason for continuance was
lack of earlier available trial date, and subsequently stated reason that government
needed time to arrange transportation for out-of-state witnesses was not relied upon
at time court granted continuance); United States v. Stoudenmire, 74 F.3d 60, 64 n.4
(4th Cir. 1996) (determining that period during continuance order, granted for reasons
that amounted to docket congestion, was not properly excludable from period under
Speedy Trial Act, even though the order purported to exclude this period under the
ends-of-justice exclusion); United States v. Crane, 776 F.2d 600, 605 (6th Cir. 1985)
(holding that trial judge’s unavailability, which was caused at least partly by his
presiding over another case and was therefore attributable to “general congestion of
the court’s calendar,” was not a proper reason for continuing criminal trial, for
purposes of excluding delay caused thereby from speedy trial computation under
Speedy Trial Act ends-of-justice exclusion); United States v. Wentland, 582 F.2d
1022, 1024 (5th Cir. 1978) (recognizing that “[t]he congested state of the court’s
calendar may not be the basis for an excluded 18 U.S.C. § 3161(h)([7])(A)
continuance”).
4
We distinguish these types of continuances from “continuances . . . only
indirectly attributable to the court’s congestion.” Id. (holding “district court did not
grant the three contested continuances on its own motion, or in direct response to its
own calendar needs” but instead “in response to signed stipulations by both parties
that they needed additional time to prepare for trial”).

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generated the need for the fourth continuance: “Roughly forty-nine different trials had
been set during that time frame at one time or another. The [c]ourt cannot try more
than one case at a time.” Id. As a direct result of the scheduling conflicts generated by
the court’s congested docket, the district court decided to “tr[y] a criminal case where
the defendant had been detained for 117 days prior to his trial on August 6, 2018.” Id.
at 10. As the court explained, it was “not able to try two criminal cases on August 6,
2018.” Id.

We are sympathetic to the congested calendar and judicial emergency that the
district court faced during Johnson’s case. But the Act does not permit exclusion of
days caused by the court’s own scheduling conflicts resulting from a crowded docket.
This constitutes general congestion under the Act and is not a legitimate ground upon
which to exclude days under the Act. See supra n.3. The government conceded at oral
argument that if the fourth continuance was not for an allowable purpose, a Speedy
Trial Act violation occurred. See Oral Arg. at 13:27–13:57.

Because we determine that the delay occasioned by the fourth continuance was
not excludable under the Act, we must also determine the appropriate remedy.
Congress set forth the Act’s “enforcement and sanctions provisions” “[t]o promote
compliance with [the Act’s] requirements.” Zedner, 547 U.S. at 499. If the defendant
makes “a meritorious and timely motion to dismiss,” then “the district court must
dismiss the charges, though it may choose whether to dismiss with or without
prejudice.” Id.

To determine whether to dismiss with or without prejudice, “the court must take
into account, among other things, ‘the seriousness of the offense; the facts and
circumstances of the case which led to the dismissal; and the impact of a reprosecution
on the administration of [the Act] and on the administration of justice.’” Id. (alteration
in original) (quoting 18 U.S.C. § 3162(a)(2)). Dismissal with prejudice is “[t]he more
severe sanction.” Id. It “is available for use where appropriate, and the knowledge that

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a violation could potentially result in the imposition of this sanction gives the
prosecution a powerful incentive to be careful about compliance.” Id. By contrast,
dismissal without prejudice is “[t]he less severe sanction.” Id. It allows the court to
“avoid unduly impairing the enforcement of federal criminal laws—though even this
sanction imposes some costs on the prosecution and the court, which further
encourages compliance.” Id. “When an indictment is dismissed without prejudice, the
prosecutor may of course seek . . . a new indictment.” Id. (citing 18 U.S.C. § 3288).

Johnson cites United States v. Tunnessen, 763 F.2d 74 (2d Cir. 1985), for the
proposition that “[a] remand for a hearing should not be routinely ordered in a case
. . . where the issue of whether dismissal should be with or without prejudice arises
for the first time on appeal, the trial court having denied the motion to dismiss.”
Appellant’s Br. at 31 (quoting Tunnessen, 763 F.2d at 79).

But other appellate courts have left for the district court “to decide in the first
instance whether the dismissal is with or without prejudice per the factors in 18 U.S.C.
§ 3162(a)(2).” Reese, 917 F.3d at 184; see also United States v. Frey, 735 F.2d 350,
353 (9th Cir. 1984) (“The district judge may make the dismissal for noncompliance
with the Act either with or without prejudice, in his discretion.”); Johnson, 120 F.3d
at 1112 (“Under these circumstances, we believe it appropriate to follow our general
practice and remand to the trial court to assess whether the dismissal should be with
or without prejudice.”).

In accordance with the majority of our sister circuits, we will permit the district
court to determine in the first instance whether to dismiss the indictment with or
without prejudice by applying the factors set forth in 18 U.S.C. § 3162(a)(2).

B. Sixth Amendment
“[O]ur analysis in this case cannot end with the Speedy Trial Act. [Johnson]
also presents a speedy trial claim under the Sixth Amendment,” which, if successful,

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“would require the district court to dismiss the case with prejudice.” United States v.
Larson, 627 F.3d 1198, 1207 (10th Cir. 2010) (quoting United States v. Toombs, 574
F.3d 1262, 1274 (10th Cir. 2009)); see also United States v. Summage, 575 F.3d 864,
875 (8th Cir. 2009) (considering Sixth Amendment claim even after finding Speedy
Trial Act violation).

“[T]he Sixth Amendment right to a speedy trial attaches at the time of arrest or
indictment, whichever comes first, and continues until the trial commences.” United
States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). “Assessment of whether a
defendant’s Sixth Amendment right to a speedy trial has been violated includes
consideration of the length of the delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” Sprouts, 282 F.3d at 1042; see
also Barker v. Wingo, 407 U.S. 514, 530 (1972). We consider each of these factors in
turn.

First, our consideration of the length of the delay “requires a double inquiry: (1)
whether the length of delay was presumptively prejudicial such that it triggers the
Barker analysis, and, if triggered, (2) the extent to which the delay stretches beyond
the bare minimum needed to trigger judicial examination of the claim.” United States
v. Rodriguez-Valencia, 753 F.3d 801, 805 (8th Cir. 2014) (quotations omitted). Here,
Johnson’s nearly 14-month delay was presumptively prejudicial. See United States v.
Titlbach, 339 F.3d 692, 699 (8th Cir. 2003) (“[A] delay approaching a year may meet
the threshold for presumptively prejudicial delay requiring application of the Barker
factors.”). But the delay did not stretch far “beyond the bare minimum needed to
trigger judicial examination.” Rodriguez-Valencia, 753 F.3d at 805 (quotations
omitted). Further, the heavy discovery in this case mitigates the delay’s length. See
Barker, 407 U.S. at 530–31 (“[T]he length of delay that will provoke such an inquiry
is necessarily dependent upon the peculiar circumstances of the case.”)

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 Second, “closely related to length of delay is the reason the government assigns
to justify the delay.” Barker, 407 U.S. at 531. In the present case, the reason for the
delay was primarily attributable to the court’s docket congestion. This reason weighs
in favor of a Sixth Amendment violation, but only slightly. See id. (“[O]vercrowded
courts should be weighted less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the government rather
than with the defendant.”).

Third, we consider “[w]hether and how a defendant assert[ed] h[er] right.” Id.
Johnson only weakly asserted her speedy trial right: although she eventually moved
to dismiss, she failed to oppose the four continuances. See id. at 516–18, 529, 536
(noting that the Sixth Amendment inquiry allows courts to “weigh the frequency and
force of the objections” and further noting that the defendant in that case failed to
object meaningfully to government-sought continuances).

Finally, we assess the prejudice to the defendant in light of the following three
interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the defense will be
impaired.” Id. at 532. With regard to the second interest, avoiding “[a]nxiety, without
concurrent prejudice to the defendant’s ability to mount a defense, is likely the
weakest interest served [by the Sixth Amendment].” United States v. Shepard, 462
F.3d 847, 865 (8th Cir. 2006). Here, Johnson argues that the delay prejudiced her by
causing anxiety, but her anxiety alone is insufficient to demonstrate prejudice. See
United States v. McGhee, 532 F.3d 733, 740 (8th Cir. 2008) (“[A]lthough anxiety and
concern are present in every case, this alone does not demonstrate prejudice.”). And
Johnson’s other cited injuries, such as damage to her business and humiliation for her
children, are unrelated to the delay and more attributable to the indictment.

Accordingly, we affirm the district court's denial of Johnson’s Sixth
Amendment claim.

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 III. Conclusion
As a result of the district court’s sua sponte fourth continuance, the 70-day
speedy trial clock expired prior to Johnson’s trial. The district court erred in not
granting Johnson’s motion to dismiss the indictment because a Speedy Trial Act
violation occurred. “The remedy for this error is to reverse the [d]istrict [c]ourt’s
decision, vacate [Johnson’s] conviction, and remand for dismissal of the indictment.”
See Reese, 917 F.3d at 184. We leave it to the district court to determine in the first
instance whether to dismiss with or without prejudice. As to the district court’s denial
of Johnson’s Sixth Amendment claim, we affirm.

LOKEN, Circuit Judge, concurring.

I concur in the court’s grant of Speedy Trial Act relief, but I reach this result by
a somewhat different path.

In October 2017, Johnson moved to compel discovery seeking, among other
materials, subpoenaed documents federal agents took from her in January 2014. In
response, the government sought and was granted a first continuance based on the
estimated time needed for untimely compliance with Johnson’s discovery requests.
The district court granted the continuance in early November, rescheduling the three-
day trial to March 27, 2018. On December 18, the magistrate judge denied in part
Johnson’s pending motion to compel, relying on the government’s assurance that it
had provided those materials.

In February 2018, the government filed a superseding indictment, adding a
charge that Johnson made a false statement on an April 2013 loan application which
the district court described as “extremely weak” at trial. On February 15, Johnson
moved to compel discovery she still had not received, noting that the new count
required additional discovery. Five days later, the government sought a second
continuance due to an unavailable “essential” witness. See 18 U.S.C.

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§ 3161(h)(3)(A). The district court granted a continuance, rescheduling the trial to
June 18, 2018. On April 27, the magistrate judge held a hearing to address whether
the government had turned over all documents federal agents took from Johnson in
January 2014, including loan documents relevant to the newly-added false statement
charge. The day before the hearing, the government delivered to defense counsel four
boxes of discovery materials it had “inadvertently” failed to provide -- materials
Johnson first requested in September 2017.

The third continuance arose as a result of a telephone status conference the
district court held with counsel on May 21, 2018. As the court explained at the start
of trial:

The third continuance was granted because everybody had told
Magistrate Miller at the time that he held a pretrial conference that this
case could be tried in three days. And I . . . then scheduled a telephone
conversation with both counsel, and they both informed me that there’s
no way this case could be tried in three days, it’s going to take two
weeks. I didn’t have that time available, so I had to continue the case.
I could have forced everybody to go to trial in three days, but nobody
would have wanted to do that . . . .

On June 11, the court issued an “ends of justice” order granting the third continuance
and rescheduling the trial to August 6, 2018.

Although our decision focuses on the fourth continuance, in my view the third
continuance is an essential starting point for our analysis. The third was not a
“general congestion” continuance, nor was the district court’s “ends of justice”
rationale inadequately explained. The court had scheduled a three-day trial for a day
certain on its busy calendar. On the eve of trial, both counsel advised that the
complex case would take ten days to try, not three. This was grounds for a
continuance to avoid a “miscarriage of justice.” See 18 U.S.C. § 3161(h)(7)(B)(i).

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But it was not an excludable continuance if it was attributable to the government’s
“lack of diligent preparation.” 18 U.S.C. § 3161(h)(7)(C); see United States v. Dog
Taking Gun, 7 F. Supp. 2d 1118, 1121-22 (D. Mont. 1998). The grant of a
continuance until August 6 was still within the Speedy Trial Act’s seventy-day period
if the first two continuances were properly excluded, as we are assuming. To my
knowledge, no case has suggested that this type of last-minute adjustment to a court’s
trial schedule caused by counsel’s untimely disclosure of the time needed to try a case
falls within the “general congestion” prohibition in § 3161(h)(7)(C). In my view,
because the court does not acknowledge that counsels’ failings caused the district
court’s scheduling dilemma, its decision is dubious “general congestion” precedent.

That brings me to the fourth continuance from a different perspective. The
fourth continuance was an extension of the third continuance, whose root cause was
untimely and inadequate preparation by counsel, not the court’s general congestion.
But the fourth extension of 84 days, if not excluded, violated the Speedy Trial Act by
more than one month. The court granted this extension sua sponte, and its July 10
Order explained only that “a scheduling conflict has arisen involving other obligations
of the Court.” This raised an issue that to my knowledge has not been addressed in
any published opinion -- when the parties’ failings compel rescheduling a trial to
avoid a miscarriage of justice, at what point do the court’s general congestion
problems result in a continuance excluded by § 3161(h)(7)(C)? The “shared
responsibility” dicta in Hodges v. United States does not answer this question. 408
F.2d 543, 551-52 (8th Cir. 1969).

A further complexity in this case is that counsel for Johnson did not promptly
move the court for an order declaring the fourth continuance not excludable under
§ 3161(h)(7). Counsel could have argued that the court’s “ends of justice” finding
under subsection (A) was not adequately explained, or that exclusion was prohibited
by the “general congestion” and/or the “lack of diligent preparation” provisions of
subsection (C). Johnson failed to give the district court an opportunity to further

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consider the fourth continuance in light of these Speedy Trial Act provisions before
the seventy-day period expired, when the court could have explored with counsel
various options for conducting the trial in compliance with the Act.

For this reason, I would review the district court’s ruling for plain error.
However, even applying the rigors of plain error review, I conclude that Johnson
deserves Speedy Trial Act relief because the district court failed to consider that
Johnson’s rights were violated by the government’s persistent lack of diligent
preparation that forced the defense to agree with the government on the eve of trial
that the case could not be tried in the three days the court had scheduled. In general,
I agree that the government’s failure to provide timely discovery that causes a
defendant to seek a continuance does not demonstrate a lack of diligent preparation
absent “chronic discovery abuses or . . . bad faith.” United States v. Cianciola, 920
F.2d 1295, 1300 (6th Cir. 1990), and cases cited. But here, the government’s
discovery non-compliance despite multiple defense requests and its outright discovery
misrepresentations, exacerbated by filing, in the middle of a discovery dispute, a
superseding indictment adding an “extremely weak” count based on a transaction five
years earlier, evidenced a calculated effort to circumvent Johnson’s Speedy Trial Act
rights.

I therefore concur in the grant of Speedy Trial Act relief, leaving to the district
court whether to dismiss the indictment with or without prejudice. See generally
United States v. Taylor, 487 U.S. 326, 337-43 (1988). I also agree that the denial of
Johnson’s Sixth Amendment claim should be affirmed.
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