with whom SEITZ and HIGGINBOTHAM, Circuit Judges, join, dissenting in No. 85-3003, No. 85-3004
The law is no stranger to ironies, but it would take the talents of a Peter Finley Dunne, a Lewis Carroll, a Samuel Clemens or an Art Buchwald to explain that a statute called the Speedy Trial Act has as its chief, if not its sole, practical purpose the justification of post-indictment delays in the disposition of criminal cases. Congress may not have been completely literal in its choice of a title for the Act, but I do not believe it was jesting. The interpretation of the Act made by the majority, however, reduces the Act to the level of a joke, ostensibly because the opinion in Henderson v. United States, — U.S. —, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), requires as much. That case, the majority suggests, overruled our recent decision in United States v. Novak, 715 F.2d 810 (3d Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984). The court reads more into Henderson than can legitimately be found there. If there is no Speedy Trial Act violation in this case, it is hard to imagine a set of circumstances in which, in the real world of the federal criminal justice process, one will be found. The tongue-clicking admonition in Part IV of the majority opinion that the district courts ought to do something about what it describes as a “loophole” in the Act is small comfort to the litigants before us. It is, moreover, a toothless suggestion, unless *203we are ready to say that in exercising our supervisory authority we are going to insist that Speedy Trial Plans include meaningful time limits. We exercised that supervisory authority in Novak, interpreting the Speedy Trial Plan in the Western District of Pennsylvania (Speedy Trial Plan) as including a meaningful time limit for the disposition of motions. By overruling Novak, we signal to the district courts that the suggestion in Part IY is not seriously intended. I dissent.
I.
On May 14,1981, while on trial in federal court for possession of marijuana with intent to distribute, Dean Felton was arrested by the Pennsylvania state police and charged under Pennsylvania law with possession of marijuana, possession with intent to distribute and conspiracy. Felton was convicted of the federal offense and on July 21, 1981 was sentenced to a jail term, a fine, and a 20-year special parole term. Trial on the Pennsylvania charges was scheduled for September 21, 1981, almost three months after the imposition of his federal sentence. There is no question, therefore, that he was available for state trial on September 21, 1981. On September 17, 1981, however, the District Attorney of Allegheny County moved ex parte to dismiss those charges because their prosecution was being assumed by the United States Attorney. When Felton, who by then was in federal custody, learned of the dismissal he objected that the dismissal and transfer of the charges to the federal authorities violated his state and federal rights to a speedy trial. The file was nevertheless transferred to the Office of the United States Attorney, where it languished while Felton served his sentence.
Felton was released from federal custody on March 5, 1983. Twenty-six days after his release a federal grand jury handed down indictment No. 83-49, which produces this appeal. Thus the indictment did not come down until twenty-two and a half months after his May 14, 1981 arrest. Felton made his initial appearance on indictment No. 83-49 on April 1, 1983, and was arraigned on April 11. With the exception of co-defendant Richard Cox, all other defendants were arraigned by May 20, 1983.
Trial on indictment No. 83-49 commenced on April 1, 1985, six weeks shy of five years after Felton’s arrest by the Pennsylvania state police on the virtually identical charges, and two years to the day after his first appearance before a United States Magistrate. Felton, and defendants Nancy E. Bruce and Anthony Serrao moved pre-trial to dismiss the indictment on speedy trial grounds, relying both on the Speedy Trial Act and on the speedy trial clause of the sixth amendment.1
II.
The majority holds that despite the provision in the Speedy Trial Act that the trial of a defendant “shall commence within seventy days ... from the date the defendant has appeared before a judicial officer____” 18 U.S.C. § 3161(c)(1) (1982), a trial commencing 730 days thereafter, or more than ten times later than the basic standard in the Act, was nonetheless timely. Moreover, under the majority’s rationale a trial commencing 1730 days after arraignment would also qualify, for the majority’s interpretation of 18 U.S.C. § 3161(h)(1)(F) (1982) would apply to such a delay so long as the court delayed in setting down a pending motion for hearing for that period. Thus for all intents and purposes, application of the Speedy Trial Act in any case in which any pretrial motion is made by any party, absent a local plan stating otherwise, is entirely within the control of the trial court. This seems on its face to be a curious intention to attribute to a Congress concerned with “reducing crime and the danger of recidivism by requiring speedy trials.” H.R.Rep. No. 1508, 93d Cong., 2d *204Sess. 8, reprinted in 1974 U.S.Code Cong. & Admin.News 7401, 7402. Nevertheless, the majority is correct that the Henderson majority interprets section 3161(h)(1)(F) as authorizing such a result, at least absent a local plan prohibiting potentially excessive and abusive use of this exclusion.
The majority in the instant case, however, goes further in eviscerating the Speedy Trial Act than did the Henderson majority. Justice Powell in Henderson stated:
Congress clearly envisioned that any limitations should be imposed by circuit or district court rules rather than by the statute itself.9 Such rules, developed pursuant to § 3166(f), should provide the assurance of a speedy disposition of pretrial motions.
9. The dissent relies on district court rules as a basis for invoking petitioners’ standard. Post, at 1880, n. 2. The interpretation of the local rule, however, is a matter on which we should defer to the Court of Appeals for the Ninth Circuit. It found no violation of the rule.
— U.S. —, 106 S.Ct. at 1875. Thus the Henderson majority explicitly acknowledged that local rules may be interpreted as imposing limitations on the length of delay in scheduling hearings on motions. That interpretation of section 3166(f), making local rules the sole control over unfettered trial court power to disregard the Act, was not persuasive to the Henderson dissenters, but at least it has the virtue of preserving some substance of Congressional intention. Moreover it is consistent with the fact that, prior to the passage of the Speedy Trial Act, local plans for achieving prompt disposition of criminal cases, adopted pursuant to Fed.R.Civ.P. 50(b), were already in place in most districts. Thus it is conceivable that in enacting section 3166(f) Congress, aware of the manner in which Rule 50(b) plans dealt with the problem of delay in scheduling hearings on motions, decided that a legislative standard was unnecessary.
In Henderson, Justice Powell stated that the Supreme Court “should defer to the Court of Appeals” for the interpretation of local plans. See — U.S. —, 106 S.Ct. at 1875. This court of appeals had already interpreted the local plan for the Western District of Pennsylvania prior to the time Felton, Bruce, and Serrao were tried. In United States v. Novak, 715 F.2d 810 (3d Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984) we noted the requirement in 114(f)(7) of the Speedy Trial Plan that “[a]ll pre-trial hearings shall be conducted as soon after the arraignment as possible, consistent with the priorities of other matters on the court’s criminal docket.” 715 F.2d at 820 n. 15. That provision was relied upon to support a requirement that the district courts make specific and approximately contemporaneous findings as to the reasonableness of any extended exclusions for pretrial motions under subsection F. Id. at 820. This reasonableness limitation, we observed, was consistent with the Senate Committee’s declaration that it did not “intend that additional time be made eligible for exclusion [under subsection (F)] by postponing the hearing date ...of the motions beyond what is reasonably necessary." Id. at 819-20 & n. 15 (quoting S.Rep. No. 212, 96th Cong., 1st Sess. 33-34 (1979) (emphasis added)).
The court is sitting in banc in this case, and thus it would be free to overrule the interpretation of the Western District of Pennsylvania Plan announced in Novak. The majority does not, however, purport to do so. Had it taken that approach, the majority would have put itself in the unenviable position of having to support such action with reasons. That would be difficult in light of the concession in Part IV of the majority opinion that, absent the Novak interpretation of the Plan, there is “a loophole in the Speedy Trial Act that could frustrate its aims.” 811 F.2d at 200. Nonetheless the majority has created such a loophole, quite plainly frustrating the purposes of the Act in this case by justifying a post-indictment delay more than ten times as long as the applicable statutory standard. Unable to offer any plausible *205reason for doing so, it makes the preposterous assertion that Novak is inconsistent with Henderson. The majority’s reading of Henderson is so strained as to require quotation. In one paragraph the majority observes:
The Henderson Supreme Court majority deferred to the court of appeals, noting “[i]t found no violation of the rule.” — U.S. at —, 106 S.Ct. at 1875 n. 9, 90 L.Ed.2d at 307 n. 9. Actually, the court of appeals simply had noted the existence of local rules without quoting or discussing any of them. 746 F.2d at 623. The Supreme Court stated that “it would be useful in the future for circuit and district court rules to include specific time tables, thereby giving substance to the obligations of prosecutors and defense counsel under the Speedy Trial Act.” 106 S.Ct. at 1875.
811 F.2d at 196. Thus the majority notes that Justice Powell (1) misstated the holding of the court of appeals, and (2) suggested that specific timetables “would be useful.” In the next paragraph, however, the court continues:
Moreover, to give effect to the local rule here would be inconsistent with the Supreme Court’s resolution of the issues in Henderson. It is significant that there, in rejecting the dissent’s suggestion that the local rule filled the gap in subsection (F), the majority instead emphasized that district court rules should “include specific time tables.”
Id. Thus by slight of hand, or word, Justice Powell’s misstatement of a court of appeals holding and his observation that specific timetables “would be useful” — a proposition that few would challenge — are transmogrified into a holding that any plan provision other than a specific timetable is totally unenforceable. The majority holds that not only are specific timetables useful, but they “should” be included. This sort of treatment of a relied-upon authority is hardly the kind of lesson the court in banc should be giving to the bar. No fair reading of the opinion of the court in Henderson suggests that it overruled our statement in Novak that the Western District Speedy Trial Plan is binding, not precatory.
The court had no difficulty interpreting it in Novak. Unlike the majority, I have no difficulty in finding manageable the Speedy Trial Plan’s standard:
As soon ... as possible, consistent with the priorities of other matters.
Final Plan Pursuant to Speedy Trial Act of 1974, 114(f)(7) (W.D.Pa.1980). Moreover the majority’s holding that only specific timetables in a local plan will ever be enforceable is a thoroughly undesirable rule. One can agree with Justice Powell that specific timetables are useful only if one recognizes that some degree of flexibility is retained. Any timetable, if it is not going to list times so numerous as to be inconsistent with the spirit of the Speedy Trial Act, must be qualified to some extent. It will surprise the justices in the Henderson majority, I earnestly believe, to learn that their opinion makes unenforceable any plan which includes the flexibility necessary to make it workable.
One other point is suggested by the majority opinion although not discussed therein. The majority construes section 3161(h)(1)(F) as authorizing the indefinite postponement of hearings on pre-trial motions. There are, however, constitutional limits upon the power of Congress to confer such authority on the courts. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court, interpreting the speedy trial clause of the sixth amendment, stressed four factors relevant to the determination of a defendant’s speedy trial claim: length of delay, reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192. The court declined to impose specific time limits. Id. at 523, 92 S.Ct. at 2188. Obviously the nonspecific standards of Barker v. Wingo must be applied whether or not Congress says so. Thus the interpretation of section 3161(h)(1)(F) in the majority opinion — that it prohibits anything other than a specific timetable — makes no sense. It does not solve the vagueness problem which the ma*206jority has conjured up, because Barker v. Wingo is as unspecific as the Western District of Pennsylvania Speedy Trial Plan. Even the adoption of a plan with specific timetables would not eliminate the necessity for considering the Barker v. Wingo standards because a timetable with specific, permitted delays that are long enough to afford the trial court needed flexibility, would in each specific application still have to satisfy the requirements of the sixth amendment. The majority holding, however, construes section 3161(h)(1)(F) as authorizing a totally open-ended delay, without further inquiry. Such an interpretation of the statute makes it facially unconstitutional. At the very least, the majority is obliged to say more about the defendants’ sixth amendment contention than the naked assertion that “we find [it] to be without merit.” 811 F.2d at 201. A post-arrest delay of almost five years and a post-arraignment delay of 730 days present sixth amendment questions which cannot be so cavalierly ignored.
III.
I would avoid the lurking sixth amendment problems inherent in the majority's approach by applying the Novak holding that the Western District of. Pennsylvania Speedy Trial Plan is enforceable. If it is enforceable, there is no doubt that it was violated by the 730 day post-indictment delay that occurred in this case. There is no way that the majority can piece together 660 days of excludable time except by holding that there is no limit on when the trial court may schedule a hearing on, and decide, a pretrial motion.
A.
All co-defendants except Richard Cox, seven in all, were arraigned on indictment No. 83-49 by May 20, 1983. By July 1, 1983 there were pending in the district court thirty-five pre-trial motions seeking various forms of relief. The majority opinion notes that the defendants “deluged” the district court with motions. 811 F.2d at 197. An examination of the motions, however, discloses that they were what one might expect when seven co-defendants are before the court charged with a conspiracy to distribute marijuana five years earlier. Among them were motions by Felton to dismiss both under the Speedy Trial Act and the speedy trial clause of the sixth amendment and to dismiss on double jeopardy grounds. As the majority notes, id,., ten motions were disposed of at hearings on July 14 and 15, 1983, leaving twenty-five pending, including Felton’s speedy trial motion. Some of the pending motions had been filed as early as April 18, 1983. Another hearing was held on the pending motions on July 28, 1983, and the docket entry for that date contains the notation “Hearing on pretrial mts concluded CAV before Diamond, J.”
Thereafter, defendant Bruce filed a severance motion. Felton filed a motion to disqualify defendant Bruce’s counsel, and defendant Hathorn filed a double jeopardy motion. Felton and Bruce contend, and examination of the record confirms, that even allowing for post-hearing written submissions all pending motions, with the exception of Felton’s motion to disqualify Bruce’s counsel, must be deemed to have been under advisement no later than September 26, 1983.
The government responded to Felton’s August 16 disqualification motion on August 25. Nothing more was done on this motion for seven months. Then on March 21, 1984 the court held a hearing, and on April 6, 1984 the court granted the motion. The government contends, and the majority rules, that the entire 217-day period between August 16, 1983 and March 21, 1984 is excludable under section 3161(h)(1)(F). The government also contends that the period between March 21, 1984 and April 6, 1984 is excludable under section 3161(h)(l)(J). I disagree.
The lapse of seven months violated the district court’s guideline for the prompt disposition of criminal cases contained in paragraph 4(f)(7) of the Western District of Pennsylvania Speedy Trial Plan. As noted above, this plan requires that such hear*207ings be held “as soon after the arraignment as possible.” Speedy Trial Plan, 114(f)(7). The hearing on the disqualification motion was not heard within this time frame. Because the seven-month delay goes beyond the bounds of what is permissible under the Speedy Trial Plan, it is not excludable under section 3161(h)(1)(F). In addition, because there do not appear to be any reasons of record why this motion could not have been timely resolved, only the thirty-day period from August 25 to September 24 is excludable under section 3161(h)(1)(F), and the thirty-day period from September 25 to October 25 is excludable under section 3161(h)(l)(J).
On November 3, 1983 the court sua sponte entered an order purporting to exclude time under numerous Speedy Trial Act exclusions. This order does not contain any findings that support a determination that the disqualification hearing was timely under the Speedy Trial Plan. The court relied, inter alia, on the fact that co-defendant Cox had not been apprehended. As I discuss infra, the government was dilatory in seeking Cox and consequently, even though that delay was not the fault of the district judge, the time for deciding the motion was not extended. The speedy trial clock commenced running on October 26, 1983, at least for purposes of sections 3161(h)(1)(F) and 3161(h)(l)(J). No new motion was made by any party until November 21, 1983 when Felton made a motion to supplement the record and a motion to sever Cox. Thus twenty-six days expired for purposes of those sections. Both of Felton’s November 21, 1984 motions were unopposed. The motion to supplement the record was essentially a housekeeping matter which could in no way reasonably require retention under advisement for anything near the maximum thirty-day period in section 3161(h)(l)(J). The unopposed motion to sever Cox, discussed infra in connection with section 3161(h)(3), arguably required some judicial consideration because although the government did not oppose it, a severance of one defendant could result in two trials rather than one. Even if the United States is credited with the ten days permitted under Rule 24(2)(b) of the local rules of the Western District of Pennsylvania, see W.D.Pa.R. 24(2)(b) (1986), for the filing of a response, and with a maximum of thirty days excludable under section 3161(h)(l)(J), the severance motion should have been acted upon no later than December 30, 1983. It was not acted upon until March 31, 1984.
On December 28, 1983 Felton filed a second housekeeping motion to supplement the record. Crediting the United States with the ten days within which it could have filed opposing papers, the section 3161(h)(1)(F) exclusion ran to January 7, 1984. But since the motion was unopposed, no time past that date, or at best the day or two it might have taken the court to read the papers, can be deemed excludable under section 3161(h)(l)(J). Thus the speedy trial time clock commenced running no later than January 8, 1984.
No new motion was made by any party until February 17,1984 when Felton filed a renewed motion to dismiss for a violation of the Speedy Trial Act. Thus, for purposes of section 3161(h)(1)(F), the thirty-nine days between January 9 and February 17, 1984 must be charged against the seventy days, for a total of sixty-five nonexcludable days.
The government’s argument that a renewed motion to dismiss on speedy trial grounds should trigger a new section 3161(h)(1)(F) exclusion and a second thirty-day period during which the motion may be taken under advisement hardly seems consistent with the ostensible Congressional purpose in enacting the Speedy Trial Act. I do not find it necessary, however, to resolve the question whether the renewal of a motion that should have been decided long ago should give the United States and the court additional excludable time. In this case, the government’s response to Felton’s renewed motion was due on February 27, 1984. It was not filed until March 12, 1984. No justification appears of record for this delay of thirteen days. These thirteen days, when added to the sixty-five which had already expired, *208brings the chargeable delay to seventy-eight days. In addition, although a hearing on the motion was held on March 21, 1984, it was not decided until May 18, 1984. Under section 3161(h)(l)(J), the thirty-day period running from March 21 to April 20 is excludable. On April 24, Felton filed a motion to modify his bond. The motion was granted that same day. The three days between April 21 and April 24 are nonexcludable, bringing the total to eighty-one nonexcludable days.
In sum, the exclusions that may be justified under sections 3161(h)(1)(F) and 3161(h)(l)(J) by virtue of motion practice for the period challenged by Felton and Bruce fall far short of eliminating all seventy days specified in section 3161(c)(1). There undoubtedly is additional nonexcludable time in the 730 days between Felton’s appearance before a judicial officer and the commencement of the trial, but the 81 nonexcludable days I have identified suffice for purposes of the Bruce and Felton appeals.
B.
Because it misinterprets the Henderson opinion and relies on section 3161(h)(1)(F), the majority does not address the merits of the government’s reliance on the absence of the co-defendant Richard Cox. The Speedy Trial Act provides that “[a]ny period of delay resulting from the absence or unavailability of the defendant” shall be excluded in making Speedy Trial Act computations. 18 U.S.C. § 3161(h)(3)(A) (1982). The United States contends that Cox, a co-defendant named in indictment No. 83-49, was absent from the date the indictment was handed down until his arraignment on March 21, 1984. According to the United States, all of this period should be counted against the defendants because of the provision in the Act that “[a] reasonable period of delay [is excluded] when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted.” 18 U.S.C. § 3161(h)(7) (1982). Thus, the United States contends, the speedy trial clock did not begin to run in favor of any defendant until March 21, 1984.
For several independent reasons, sections 3161(h)(3) and 3161(h)(7) cannot be relied upon to exclude time in this case. These sections operate to exclude time only when a particular co-defendant has not been served. I do not construe these sections, however, to exclude time when a severance motion has been made, and as here, has been simply ignored. See United States v. Didier, 542 F.2d 1182 (2d Cir. 1976). Bruce made a severance motion on August 1, 1983, which was not ruled upon until May 5, 1984, and Felton made a severance motion on November 21, 1983, which was not ruled upon until May 21, 1984.
In its sua sponte order of November 3, 1983, the validity of which the majority does not address, the district court relied on sections 3161(h)(3) and 3161(h)(7) to create an open-ended exclusion. On this record, however, the court’s reliance on Cox’s absence is misplaced because there was on November 3, 1983 no basis of record for making a determination of Cox’s absence or unavailability. Under section 3161(h)(3), absence and unavailability are defined terms. A defendant is only absent “when his whereabouts are unknown and ... [1] he is attempting to avoid apprehension or prosecution,” or “[2] his whereabouts cannot be determined by due diligence.” 18 U.S.C. § 3161(h)(3)(B) (1982). A defendant is only unavailable when “his whereabouts are known but [1] his presence for trial cannot be obtained by due diligence or [2] he resists appearing at or being returned for trial.” Id. When the court entered the November 3, 1983 order, there was no information of record as to Cox’s whereabouts. The absence of such information is significant because under the Act “the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under sub-paragraph 3161(h)(3).” 18 U.S.C. § 3162(a)(2) (1982).
It was not until February 14, 1984 that the court, for the first time, entered an *209order requiring the United States to disclose its efforts to locate Cox. By then, Felton’s motion to sever Cox had been on file for eighty-five days. No status report with respect to Cox was filed until February 22, 1984. The filing of that report did not result in any excludable time because the government’s showing did not satisfy the statute. The United States made no effort to establish that Cox was attempting to avoid prosecution. Indeed Agent Carroll testified that Cox was not even aware of the indictment until his arrest. Nor did the United States attempt to establish that Cox’s whereabouts were known, but that he resisted returning for trial. Cox resided in Florida throughout the relevant period, and when he learned of the charge he did not resist coming to the Western District of Pennsylvania for trial. Thus the government’s position depends upon its showing that Cox’s whereabouts could not have been determined or his presence obtained by due diligence.
At a hearing addressed to the due diligence issue, Special Agent Carroll testified for the government. His testimony established the following: In March, 1983 the United States believed that Cox resided in Orlando, Florida. Agent Carroll informed federal agents in Orlando about the indictment, but they were unable to find him. Carroll called the Orlando authorities once in March, 1983 and once in April, 1983. In June, 1983 the Orlando agents obtained information that Cox had moved to Melbourne, Florida. They conveyed that information to Carroll, along with the information that they had notified the Melbourne police department of this development. Carroll made telephone calls to the Orlando officers in July and either October or November, 1983. Until February 22, 1984, he never spoke to the police department in Melbourne, Florida, where Cox was thought to be living, and then only as a result of the court’s February 14, 1984 order. Cox was arrested on a warrant almost immediately thereafter.
The government produced no evidence that it had had anyone do any of the following: check the Orlando Post Office for a change of address listing; inquire at the Florida motor Vehicle registry for a change of address for any automobile registration or driver’s license issued to Cox; ask Cox’s landlord in Orlando if Cox had left a forwarding address; check with the local telephone company for change in telephone listing for Cox; or examine any telephone directory for the Melbourne, Florida area for Cox’s number. Aside from a few desultory and unfruitful telephone calls to unidentified federal agents in Orlando, so far as this record discloses, the United States exercised no diligence in attempting to locate Cox until the court’s February 14, 1984 order. As a matter of law on this record, the United States failed to make out a prima facie case that Cox’s whereabouts could not have been determined or his presence obtained through the exercise of due diligence. See United States v. Garrett, 720 F.2d 705, 707-08 (D.C.Cir. 1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1311, 79 L.Ed.2d 708 (1984); United States v. Lopez-Espindola, 632 F.2d 107, 109 (9th Cir.1980).
Thus whether the question of the effect of Cox’s absence is resolved on the theory that the longstanding severance motion should have been granted, and therefore, Cox’s absence cannot be attributed to his co-defendants under section 3161(h)(7), or on the theory that Cox was not absent or unavailable within the meaning of section 3161(h)(3)(B), the result is the same. Cox’s absence cannot be used to toll the speedy trial time clock.
C.
The United States also relies upon the so-called “interest of justice” exclusion. The Speedy Trial Act excludes from the seventy-day calculation “[a]ny period of delay resulting from a continuance granted by any judge on his own motion ... 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.” 18 U.S.C. *210§ 3161(h)(8)(A) (1982). Arguably the November 3, 1983 order, which postponed the decision on pending motions from July, 1983 to May 18, 1984, was a continuance granted by a judge on his own motion. The period of any continuance, however, is not excludable unless the court sets out its reasons why granting it serves the ends of justice. In the absence of such a statement of reasons, the time is not excludable. United States v. Brooks, 697 F.2d 517, 520 (3d Cir.1982), cert. denied, 460 U.S. 1071, 103 S.Ct. 1526, 75 L.Ed.2d 949 (1983); United States v. Carrasquillo, 667 F.2d 382, 385-86 (3d Cir.1981). Although the district court purported to comply with this requirement, the recitals in the November 3, 1983 order are patently insufficient to warrant an ends of justice continuance. Moreover, considering the relevant factors listed in the statute, on this record an interest of justice exclusion would never be supportable.2 For these reasons section 3161(h)(8) does not create any excludable time.
IV.
The majority relies on the exclusion in section 3161(h)(1)(F), but its interpretation of that section, which eliminates the protections created in the Speedy Trial Plan for the Western District of Pennsylvania and Fed.R.Civ.P. 50(b), creates a loophole which totally undermines the Speedy Trial Act and is patently inconsistent with the intention of Congress in enacting it. Neither section 3161(h)(1)(F), properly construed, nor any other provisions in the Act, singly or in combination, can justify excluding 660 days from consideration. The judgments appealed from by Felton, No. 85-3303, and Bruce, No. 85-3304, should be reversed, and the indictments against them dismissed pursuant to 18 U.S.C. § 3162 (1982).
. Anthony Serrao did not brief speedy trial contentions in this court. The United States concedes, however, that he preserved these claims in the district court, and should be afforded the same treatment with respect to them as is afforded defendant Bruce.
. Of the four factors listed in 18 U.S.C. § 3161(h)(8)(B) (1982) as relevant to a section 3161(h)(8)(A) finding, three are relevant here:
(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.
(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 ... 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.
18 U.S.C. § 3161(h)(8)(B) (1982).