Zedner v. United States

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ZEDNER v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

No. 05–5992. Argued April 18, 2006—Decided June 5, 2006
The Speedy Trial Act of 1974 (Act) generally requires a federal criminal
trial to begin within 70 days after a defendant is charged or makes
an initial appearance. 18 U. S. C. §3161(c)(1). Recognizing that
criminal cases vary widely and that there are valid reasons for
greater delay in particular cases, the Act includes a long and detailed
list of periods of delay that are excluded in computing the time within
which trial must start. Section 3161(h)(8) permits a district court to
grant a continuance and exclude the resulting delay if it 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. To promote compliance without needlessly subverting
important criminal prosecutions, the Act provides that, if the trial
does not begin on time and the defendant moves, before the trial’s
start or entry of a guilty plea, to dismiss, the district court must dis
miss the charges, though it may choose whether to do so with or
without prejudice.
In April 1996, petitioner was indicted on charges arising from his
attempt to open accounts using counterfeit United States bonds. The
District Court granted two “ends-of-justice” continuances, see
§3161(h)(8). When, at a November 8 status conference, petitioner re
quested another delay to January 1997, the court suggested that pe
titioner waive the application of the Act “for all time,” and produced a
preprinted waiver form for petitioner to sign. At a January 31, 1997,
status conference, the court granted petitioner another continuance
so that he could attempt to authenticate the bonds, but made no men
tion of the Act and no findings to support excluding the 91 days be
tween January 31 and petitioner’s next court appearance on May 2
(1997 continuance). Four years later, petitioner filed a motion to dis
2 ZEDNER v. UNITED STATES

Syllabus

miss the indictment for failure to comply with the Act, which the Dis
trict Court denied based on the waiver “for all time.” In a 2003 trial,
petitioner was convicted. The Second Circuit affirmed. Acknowledg
ing that a defendant’s waiver of rights under the Act may be ineffec
tive because of the public interest served by compliance with the Act,
the court found an exception for situations when the defendant
causes or contributes to the delay. It also suggested that the District
Court could have properly excluded the 91-day period based on the
ends of justice, given the case’s complexity and the defense’s request
for additional time to prepare.
Held:
1. Because a defendant may not prospectively waive the application
of the Act, petitioner’s waiver “for all time” was ineffective. Pp. 9–12.
(a) The Act comprehensively regulates the time within which a
trial must begin. Section 3161(h), which details numerous categories
of delay that are not counted in applying the Act’s deadlines, con
spicuously has no provision excluding periods of delay during which a
defendant waives the Act’s application. It is apparent from the Act’s
terms that this was a considered omission. Instead of allowing de
fendants to opt out, the Act demands that continuances fit within one
of §3161(h)’s specific exclusions. In deciding whether to grant an
ends-of-justice continuance, a court must consider a defendant’s need
for “reasonable time to obtain counsel,” “continuity of counsel,” and
“effective preparation” of counsel. §3161(h)(8)(B)(iv). If a defendant
could simply waive the Act’s application in order to secure more time,
no defendant would ever need to put such considerations before the
court under the rubric of an ends-of-justice exclusion. The Act’s pur
poses also cut against exclusion on the grounds of mere consent or
waiver. Were the Act solely designed to protect a defendant’s right to
a speedy trial, such an application might make sense, but the Act
was also designed with the public interest firmly in mind. This in
terpretation is entirely in accord with the Act’s legislative history.
Pp. 9–11.
(b) This Court rejects the District Court’s reliance on §3162(a)(2),
which provides that a defendant whose trial does not begin on time is
deemed to have waived the right to move for dismissal if that motion
is not filed prior to trial or entry of a guilty plea. That section makes
no mention of prospective waivers, and there is no reason to think
that Congress wanted to treat prospective and retrospective waivers
similarly. Allowing prospective waivers would seriously undermine
the Act because, in many cases, the prosecution, defense, and court
would all like to opt out, to the detriment of the public interest. Sec
tion 3162(a)(2)’s retrospective waiver does not pose a comparable
danger. Because the prosecution and court cannot know until the
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Syllabus

trial starts or the guilty plea is entered whether the defendant will
forgo moving to dismiss, they retain a strong incentive to make sure
the trial begins on time. Pp. 11–12.
2. Petitioner is not estopped from challenging the excludability un
der the Act of the 1997 continuance. Factors that “typically inform
the decision whether to apply the [estoppel] doctrine in a particular
case” include (1) whether “a party’s later position [is] clearly inconsis
tent with its earlier position”; (2) “whether the party has succeeded in
persuading a court to accept that . . . earlier position”; and (3)
“whether the party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment on the op
posing party if not estopped.” New Hampshire v. Maine, 532 U. S.
742, 750–751. None of the three possible “positions” taken by peti
tioner gives rise to an estoppel. First, recognizing an estoppel based
on petitioner’s promise not to move for dismissal under §3162(a)(2)
would entirely swallow the Act’s no-waiver policy. Second, peti
tioner’s (mistaken) agreement that waivers are enforceable does not
provide a ground for estoppel because petitioner did not “succee[d] in
persuading” the District Court to accept the validity of prospective
waivers. On the contrary, the District Court requested the waiver
and produced the form for petitioner to sign. Even if the other factors
favor estoppel, they do not predominate. Finally, petitioner’s repre
sentation at the January 31 status conference that a continuance was
needed to gather evidence of the bonds’ authenticity does not support
estoppel because that position was not “clearly inconsistent” with the
position that he now takes in seeking dismissal, i.e., that delay from
that continuance was not excluded under the Act. Nothing in the
discussion at the conference suggests that the question presented by
the continuance request was viewed as anything other than a case-
management question laying entirely within the District Court’s dis
cretion. Pp. 12–15.
3. When a district court makes no findings on the record to support
a §3161(h)(8) continuance, harmless-error review is not appropriate.
The Government argues that an express finding need not be entered
contemporaneously and could be supplied on remand. But the Act
requires express findings, see §3161(h)(8)(A), and at the very least
implies that those findings must be put on the record by the time the
district court rules on the motion to dismiss. Because the District
Court made no such express findings, the 1997 continuance is not ex
cluded from the speedy trial clock. This error is not subject to harm
less-error review. Harmless-error review under Federal Rule of
Criminal Procedure 52(a) presumptively applies to “all errors where
a proper objection is made,” Neder v. United States, 527 U. S. 1, 7,
but strong support for an implied repeal of Rule 52(a) in this context
4 ZEDNER v. UNITED STATES

Syllabus

is provided by the Act’s unequivocal provisions, which specify that a
trial “shall commence” within 70 days, §3161(c)(1) (emphasis added),
and that “[n]o . . . period of delay” from an ends-of-justice continuance
“shall be excludable” from the time period unless the court sets forth
its reasoning, §3161(h)(8)(A) (emphasis added). Applying harmless-
error review would also tend to undermine the detailed requirements
of the provisions regulating ends-of-justice continuances. Pp. 15–18.
4. Because the 91-day continuance, which was not excluded from
the speedy trial clock, exceeded the maximum 70-day delay, the Act
was violated, and there is no need to address whether other periods
of delay were not excludable. The District Court may determine in
the first instance whether the dismissal in this case should be with or
without prejudice. Pp. 18–19.
401 F. 3d 36, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ.,
joined, and in which SCALIA, J., joined as to all but Part III–A–2.
SCALIA, J., filed an opinion concurring in part and concurring in the
judgment.
 Cite as: 547 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–5992
_________________

JACOB ZEDNER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 5, 2006]

JUSTICE ALITO delivered the opinion of the Court.
This case requires us to consider the application of the
doctrines of waiver, judicial estoppel, and harmless error
to a violation of the Speedy Trial Act of 1974 (Act), 18
U. S. C. §§3161–3174. The Act generally requires a fed
eral criminal trial to begin within 70 days after a defen
dant is charged or makes an initial appearance,
§3161(c)(1), but the Act contains a detailed scheme under
which certain specified periods of delay are not counted.
In this case, petitioner’s trial did not begin within 70 days
of indictment. Indeed, his trial did not commence until
more than seven years after the filing of the indictment,
but petitioner, at the suggestion of the trial judge, signed a
blanket, prospective waiver of his rights under the Act.
We address the following questions: whether this waiver
was effective; whether petitioner is judicially estopped
from challenging the validity of the waiver; and whether
the trial judge’s failure to make the findings required to
exclude a period of delay under a particular provision of
the Act, §3161(h)(8), was harmless error.
I
In March 1996, petitioner attempted to open accounts at
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Opinion of the Court

seven financial institutions using counterfeit $10 million
United States bonds. The quality of the counterfeiting
was, to put it mildly, not expert. One bond purported to be
issued by the “Ministry of Finance of U. S. A.” 401 F. 3d
36, 39 (CA2 2005) (internal quotation marks omitted).
Others contained misspelled words such as “Thunted
States” and the “Onited States” (United States),
“Dhtladelphla” (Philadelphia), “Cgicago” (Chicago), and
“forevev” (forever). Id., at 39, n. 1 (internal quotation
marks omitted). After petitioner presented these bonds,
the Secret Service was contacted, and petitioner was
arrested. Following arraignment on a criminal complaint,
he was released on bond.
On April 4, 1996, a grand jury in the Eastern District of
New York indicted petitioner on seven counts of attempt
ing to defraud a financial institution, in violation of 18
U. S. C. §1344, and one count of knowingly possessing
counterfeit obligations of the United States, in violation of
§472. On June 26, the District Court, citing the complex
ity of the case, granted what is termed an “ends-of-justice”
continuance, see §3161(h)(8)(B)(ii), until September 6. On
September 6, the District Court granted another continu
ance, this time until November 8.
At the November 8 status conference, petitioner re
quested, without opposition from the Government, a fur
ther adjournment to January 1997. Concerned about the
difficulty of fitting petitioner’s trial into its heavily sched
uled calendar and the prospect that petitioner might “only
waive [the Act] for so long as it is convenient for [him] to
waive,” the District Court instructed petitioner as follows:
“I think if I’m going to give you that long an adjournment,
I will have to take a waiver for all time.” App. 71. Peti
tioner’s counsel responded that the defense would “waive
for all time. That will not be a problem. That will not be
an issue in this case.” Id., at 72.
The District Court then addressed petitioner directly
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Opinion of the Court

and appears to have attempted to explain the operation of
a provision of the Act, 18 U. S. C. §3162(a)(2), under which
a defendant whose trial does not begin on time is deemed
to have waived the right to move for dismissal of the in
formation or indictment if he or she does not file that
motion prior to trial or entry of a guilty plea. The District
Court reasoned: “[I]f you can waive [the Act] by inaction,
i. e., not raising the motion to dismiss, you can waive
affirmatively, knowledgeably, intelligently your right to do
so, your right to a speedy trial and your right to make a
motion to dismiss for the speedy trial.” App. 73. The court
told petitioner that it was “prepared to start . . . trial right
away,” ibid., but that if a continuance was granted, peti
tioner might have to wait some time for trial because the
court had a “fairly big cas[e] . . . which [wa]s set to take
eight months for trial.” “[I]f that [trial] starts before you
start,” the court warned, “you may have to wait until that
is done.” Id., at 74.
The District Court then produced a preprinted form—
apparently of its own devising—captioned “Waiver of
Speedy Trial Rights.” Id., at 79. The court led petitioner
and his counsel through the form, and both signed it.
Among other things, the form stated: “I wish to waive my
rights to a speedy trial . . . under the Speedy Trial Act of
1974 (18 U. S. C. §3161 et seq.), under the Rules of this
Circuit and under the Speedy Trial Plan adopted by this
Court.” Ibid. The form also stated: “I have been advised
and fully understand that . . . I also waive any and all
rights to make a motion to dismiss the indictment . . .
against me for failure of the Court to give me a speedy
trial and that I waive all of such rights to a speedy trial
and to make such a motion or motions for all time.” Ibid.
After the form was signed, petitioner’s counsel requested
that a further status conference be scheduled for January
31, 1997, and the court agreed. Id., at 77.
At the January 31 status conference, petitioner sought
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Opinion of the Court

yet another continuance “to tap . . . the proper channels to
authenticate [the] bonds.” Id., at 81. Petitioner and the
Government emphasized that this request raised no issue
under the Act because petitioner had “waived for all time,”
though the Government suggested that it “would like to
try the case sometime in 1997.” Ibid. After a brief discus
sion between the court and petitioner’s counsel about the
need to investigate the authenticity of what seemed such
obviously fake bonds, the court offered to set trial for May
5, 1997. Id., at 86. The court admonished petitioner’s
counsel to “[g]et to work” and noted: “This [case] is a year
old. That’s enough for a criminal case.” Id., at 86, 85.
Nevertheless, apparently satisfied with petitioner’s waiver
“for all time,” the District Court made no mention of the
Act and did not make any findings to support exclusion of
the 91 days between January 31 and petitioner’s next
court appearance on May 2, 1997 (1997 continuance).
The four years that followed saw a variety of proceed
ings in petitioner’s case, but no trial. See 401 F. 3d, at 40–
41. Counsel sought to be relieved because petitioner
insisted that he argue that the bonds were genuine, and
the court ultimately granted counsel’s request to with
draw. At the court’s suggestion, petitioner was examined
by a psychiatrist, who determined that petitioner was
competent to stand trial. Petitioner then asked to proceed
pro se and sought to serve subpoenas on, among others,
the President, the Chairman of the Federal Reserve
Board, the Attorney General, the Secretary of State, the
late Chinese leader Chiang Kai-shek, and “ ‘The Treasury
Department of Treasury International Corporation.’ ” Id.,
at 40; App. 129. After a year of quashed subpoenas, the
District Court set the case for trial, only to conclude on the
morning of jury selection that it had to inquire once again
into petitioner’s competency. The court dismissed the jury
panel, found petitioner incompetent, and committed him
to the custody of the Attorney General for hospitalization
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Opinion of the Court

and treatment. On interlocutory appeal, however, the
Court of Appeals vacated that order and remanded for
further hearings. In July and August 2000, the District
Court held those hearings and received further briefing on
the competency issue.
On March 7, 2001, while the competency issue remained
under submission, petitioner moved to dismiss the indict
ment for failure to comply with the Act. The District
Court denied the motion on the ground that petitioner had
waived his Speedy Trial Act rights “for all time,” mention
ing in passing that the case was complex. Id., at 128–129.
In the same order, the court found petitioner incompetent.
Id., at 135. That latter determination was upheld on
interlocutory appeal, and petitioner was committed for
evaluation. After several months of hospitalization, peti
tioner was found to be delusional but competent to stand
trial, and he was released.
Finally, on April 7, 2003, more than seven years after
petitioner was indicted, his trial began. The jury found
petitioner guilty on six counts of attempting to defraud a
financial institution,1 and the court sentenced him to 63
months of imprisonment.
The Court of Appeals affirmed the judgment of convic
tion.2 Acknowledging that “a defendant’s waiver of rights
under the Speedy Trial Act may be ineffective” because of
the public interest served by compliance with the Act, the
Court of Appeals found an exception for situations “ ‘when
defendant’s conduct causes or contributes to a period of
delay.’ ” 401 F. 3d, at 43–44 (quoting United States v.
Gambino, 59 F. 3d 353, 360 (CA2 1995)). “[D]oubt[ing]
——————
1 The Government dismissed the other counts before trial.
2 The Court of Appeals ultimately remanded the case for resentencing
in light of United States v. Booker, 543 U. S. 220 (2005). That issue is
not before us, though we note that the District Court has indicated it
would impose the same 63-month sentence if the defendant is produced
for resentencing. No. 96–CR–285 (TCP) (EDNY, Oct. 27, 2005).
6 ZEDNER v. UNITED STATES

Opinion of the Court

that the public interest in expeditious prosecution would
be served by a rule that allows defendants to request a
delay and then protest the grant of their request,” the
Court of Appeals held that petitioner would not be heard
to complain of the 91-day delay in early 1997. 401 F. 3d,
at 45. The Court of Appeals went on to suggest that there
“can be no doubt that the district court could have prop
erly excluded this period of time based on the ends of
justice” in light of the complexity of the case and defense
counsel’s request for additional time to prepare. Ibid.
We granted certiorari to resolve the disagreement
among the Courts of Appeals on the standard for analyz
ing whether a defendant has made an effective waiver of
rights under the Act. 546 U. S. ___ (2006).
II
As noted above, the Speedy Trial Act generally requires
a trial to begin within 70 days of the filing of an informa
tion or indictment or the defendant’s initial appearance,
18 U. S. C. §3161(c)(1), but the Act recognizes that crimi
nal cases vary widely and that there are valid reasons for
greater delay in particular cases. To provide the neces
sary flexibility, the Act includes a long and detailed list of
periods of delay that are excluded in computing the time
within which trial must start. See §3161(h). For example,
the Act excludes “delay resulting from other proceedings
concerning the defendant,” §3161(h)(1), “delay resulting
from the absence or unavailability of the defendant or an
essential witness,” §3161(h)(3), “delay resulting from the
fact that the defendant is mentally incompetent or physi
cally unable to stand trial,” §3161(h)(4), and “[a] reason
able period of delay when the defendant is joined for trial
with a codefendant as to whom the time for trial has not
run and no motion for severance has been granted,”
§3161(h)(7).
Much of the Act’s flexibility is furnished by §3161(h)(8),
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Opinion of the Court

which governs ends-of-justice continuances, and which we
set out in relevant part in the margin.3 This provision
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
——————
3 Title 18 U. S. C. §3161(h)(8) provides: “(A) Any period of delay re

sulting 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. No such period of delay resulting from a continuance
granted by the court in accordance with this paragraph shall be exclud
able under this subsection unless the court sets 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.
“(B) The factors, among others, which a judge shall consider in
determining whether to grant a continuance under subparagraph (A) of
this paragraph in any case are as follows:
“(i) Whether the failure to grant such a continuance in the proceed
ing would be likely to make a continuation of such proceeding impossi
ble, 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 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.
“(C) No continuance under subparagraph (A) of this paragraph 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.”
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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 lim
ited delays for case-specific needs.
To promote compliance with its requirements, the Act
contains enforcement and sanctions provisions. If a trial
does not begin on time, the defendant may move, before
the start of trial or the entry of a guilty plea, to dismiss
the charges, and if a meritorious and timely motion to
dismiss is filed, the district court must dismiss the
charges, though it may choose whether to dismiss with or
without prejudice. In making that choice, 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.” §3162(a)(2).
This scheme is designed to promote compliance with the
Act without needlessly subverting important criminal
prosecutions. The more severe sanction (dismissal with
prejudice) is available for use where appropriate, and the
knowledge that a violation could potentially result in the
imposition of this sanction gives the prosecution a power
ful incentive to be careful about compliance. The less
severe sanction (dismissal without prejudice) lets the court
avoid unduly impairing the enforcement of federal crimi
nal laws—though even this sanction imposes some costs
on the prosecution and the court, which further encour
ages compliance. When an indictment is dismissed with
out prejudice, the prosecutor may of course seek—and in
the great majority of cases will be able to obtain—a new
indictment, for even if “the period prescribed by the appli
cable statute of limitations has expired, a new indictment
may be returned . . . within six calendar months of the
date of the dismissal.” §3288.
With this background in mind, we turn to the questions
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presented by the unusual procedures followed in this case.
III
Petitioner contends, and the Government does not seri
ously dispute, that a defendant may not prospectively
waive the application of the Act.4 We agree.
A
1
As our discussion above suggests, the Speedy Trial Act
comprehensively regulates the time within which a trial
must begin. Section 3161(h) specifies in detail numerous
categories of delay that are not counted in applying the
Act’s deadlines. Conspicuously, §3161(h) has no provision
excluding periods of delay during which a defendant
waives the application of the Act, and it is apparent from
the terms of the Act that this omission was a considered
one. Instead of simply allowing defendants to opt out of
the Act, the Act demands that defense continuance re
quests fit within one of the specific exclusions set out in
subsection (h). Subsection (h)(8), which permits ends-of
justice continuances, was plainly meant to cover many of
these requests. Among the factors that a district court
must consider in deciding whether to grant an ends-of
justice continuance are a defendant’s need for “reasonable
time to obtain counsel,” “continuity of counsel,” and “effec
tive preparation” of counsel. §3161(h)(8)(B)(iv). If a de
fendant could simply waive the application of the Act
whenever he or she wanted more time, no defendant
would ever need to put such considerations before the
court under the rubric of an ends-of-justice exclusion.
The purposes of the Act also cut against exclusion on the
grounds of mere consent or waiver. If the Act were de
signed solely to protect a defendant’s right to a speedy
——————
4 We left this question open in New York v. Hill, 528 U. S. 110, 117, n.

2 (2000).
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trial, it would make sense to allow a defendant to waive
the application of the Act. But the Act was designed with
the public interest firmly in mind. See, e.g., 18 U. S. C.
§3161(h)(8)(A) (to exclude delay resulting from a continu
ance—even one “granted . . . at the request of the defen
dant”—the district court must find “that the ends of jus
tice served . . . outweigh the best interest of the public and
the defendant in a speedy trial” (emphasis added)). That
public interest cannot be served, the Act recognizes, if
defendants may opt out of the Act entirely.
2
This interpretation is entirely in accord with the Act’s
legislative history. As both the 1974 House and Senate
Reports illustrate, the Act was designed not just to benefit
defendants but also to serve the public interest by, among
other things, reducing defendants’ opportunity to commit
crimes while on pretrial release and preventing extended
pretrial delay from impairing the deterrent effect of pun
ishment. See S. Rep. No. 93–1021, pp. 6–8 (citing “bail
problems,” offenses committed during pretrial release, and
the “seriously undermined . . . deterrent value of the
criminal process” as “the debilitating effect[s] of court
delay upon our criminal justice system”); H. R. Rep. No.
93–1508, p. 8 (“The purpose of this bill is to assist in re
ducing crime and the danger of recidivism by requiring
speedy trials . . .”). The Senate Report accompanying the
1979 amendments to the Act put an even finer point on it:
“[T]he Act seeks to protect and promote speedy trial inter
ests that go beyond the rights of the defendant; although
the Sixth Amendment recognizes a societal interest in
prompt dispositions, it primarily safeguards the defen
dant’s speedy trial right—which may or may not be in
accord with society’s.” S. Rep. No. 96–212, p. 29; see also
id., at 6; H. R. Rep. No. 96–390, p. 3 (1979). Because
defendants may be content to remain on pretrial release,
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and indeed may welcome delay, it is unsurprising that
Congress refrained from empowering defendants to make
prospective waivers of the Act’s application. See S. Rep.
No. 96–212, at 29 (“Because of the Act’s emphasis on that
societal right, a defendant ought not be permitted to waive
rights that are not his or hers alone to relinquish”).
B
The District Court reasoned that 18 U. S. C. §3162(a)(2)
supports the conclusion that a defendant may prospec
tively waive the strictures of the Act. This provision
states that “[f]ailure of the defendant to move for dis
missal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to dis
missal under this section.” Because this provision in effect
allows a defendant to waive a completed violation of the
Act (by declining to move to dismiss before the start of
trial or the entry of a guilty plea), it follows, so the District
Court’s reasoning went, that a defendant should be al
lowed to make a prospective waiver. We disagree.
It is significant that §3162(a)(2) makes no mention of
prospective waivers, and there is no reason to think that
Congress wanted to treat prospective and retrospective
waivers similarly. Allowing prospective waivers would
seriously undermine the Act because there are many
cases—like the case at hand—in which the prosecution,
the defense, and the court would all be happy to opt out of
the Act, to the detriment of the public interest. The sort of
retrospective waiver allowed by §3161(a)(2) does not pose
a comparable danger because the prosecution and the
court cannot know until the trial actually starts or the
guilty plea is actually entered whether the defendant will
forgo moving to dismiss. As a consequence, the prosecu
tion and the court retain a strong incentive to make sure
that the trial begins on time.
Instead of granting broad opt-out rights, §3162(a)(2)
12 ZEDNER v. UNITED STATES

Opinion of the Court

serves two unrelated purposes. First, §3162(a)(2) assigns
the role of spotting violations of the Act to defendants—for
the obvious reason that they have the greatest incentive to
perform this task.5 Second, by requiring that a defendant
move before the trial starts or a guilty plea is entered,
§3162(a)(2) both limits the effects of a dismissal with-
out prejudice (by ensuring that an expensive and
time-consuming trial will not be mooted by a late-filed
motion under the Act) and prevents undue defense
gamesmanship.6
For these reasons, we reject the District Court’s reliance
on §3162(a)(2) and conclude a defendant may not prospec
tively waive the application of the Act. It follows that
petitioner’s waiver “for all time” was ineffective. We
therefore turn to the Government’s alternative grounds in
support of the result below.
IV

A

The Government contends that because “petitioner’s
express waiver induced the district court to grant a con
tinuance without making an express ends-of-justice find
——————
5 The possibility of obtaining a dismissal with prejudice plainly gives

a defendant a strong incentive to police compliance, and even if a case
is dismissed without prejudice, a defendant may derive some benefit.
For example, the time and energy that the prosecution must expend in
connection with obtaining a new indictment may be time and energy
that the prosecution cannot devote to the preparation of its case.
6 As noted, in order to promote compliance with the Act, Congress set

the minimum permissible penalty at a level that would impose some
costs on the prosecution and the court without unduly interfering with
the enforcement of the criminal laws. By specifying that a defendant
may not move for dismissal once the trial has commenced or a plea has
been entered, the amount of inconvenience resulting from a dismissal
without prejudice is limited, and defendants are restricted in their
ability to use such a motion for strategic purposes. For example,
defendants cannot wait to see how a trial is going (or how it comes out)
before moving to dismiss.
 Cite as: 547 U. S. ____ (2006) 13

Opinion of the Court

ing . . ., basic principles of judicial estoppel preclude peti
tioner from enjoying the benefit of the continuance, but
then challenging the lack of a finding.” Brief for United
States 10. In this case, however, we see no basis for apply
ing the doctrine of judicial estoppel.
As this Court has explained:
“ ‘[W]here a party assumes a certain position in a
legal proceeding, and succeeds in maintaining that
position, he may not thereafter, simply because his in
terests have changed, assume a contrary position, es
pecially if it be to the prejudice of the party who has
acquiesced in the position formerly taken by him.’
Davis v. Wakelee, 156 U. S. 680, 689 (1895). This rule,
known as judicial estoppel, ‘generally prevents a party
from prevailing in one phase of a case on an argument
and then relying on a contradictory argument to prevail
in another phase.’ Pegram v. Herdrich, 530 U. S. 211,
227, n. 8 (2000).” New Hampshire v. Maine, 532 U. S.
742, 749 (2001).
Although this estoppel doctrine is equitable and thus
cannot be reduced to a precise formula or test,
“several factors typically inform the decision whether
to apply the doctrine in a particular case: First, a
party’s later position must be clearly inconsistent with
its earlier position. Second, courts regularly inquire
whether the party has succeeded in persuading a
court to accept that party’s earlier position . . . . A
third consideration is whether the party seeking to
assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the op
posing party if not estopped.” Id., at 750–751 (cita
tions and internal quotation marks omitted).
In applying this doctrine to the present case, we must
first identify the “position” of petitioner’s that the Gov
14 ZEDNER v. UNITED STATES

Opinion of the Court

ernment seeks to enforce. There are three possibilities: (1)
petitioner’s promise not to move for dismissal under
§3162(a)(2), (2) petitioner’s (implied) position that waivers
of the Act are enforceable, and (3) petitioner’s claim that
counsel needed additional time to research the authentic
ity of the bonds. None of these gives rise to an estoppel.
First, we are unwilling to recognize an estoppel based on
petitioner’s promise not to move for dismissal because
doing so would entirely swallow the Act’s no-waiver policy.
We see little difference between granting a defendant’s
request for a continuance in exchange for a promise not to
move for dismissal and permitting a prospective waiver,
and as we hold above, prospective waivers are inconsistent
with the Act.
Second, petitioner’s (mistaken) agreement that Speedy
Trial Act waivers are valid also does not provide a ground
for estoppel. Petitioner did not “succee[d] in persuading”
the District Court to accept the proposition that prospec
tive waivers of Speedy Trial Act rights are valid. On the
contrary, it was the District Court that requested the
waiver and produced the form for petitioner to sign. And
while the other relevant factors (clear inconsistency and
unfair advantage or detriment) might in isolation support
the Government, we think they do not predominate where,
as here, the Government itself accepted the District
Court’s interpretation without objection.
Finally, petitioner’s representation to the District Court
at the January 31 status conference that a continuance
was needed to gather evidence of the bonds’ authenticity
does not support the Government’s estoppel argument
because the position that petitioner took then was not
“clearly inconsistent” with the position that he now takes
in seeking dismissal of the indictment. This would be a
different case if petitioner had succeeded in persuading
the District Court at the January 31 status conference
that the factual predicate for a statutorily authorized
 Cite as: 547 U. S. ____ (2006) 15

Opinion of the Court

exclusion of delay could be established—for example, if
defense counsel had obtained a continuance only by falsely
representing that he was in the midst of working with an
expert who might authenticate the bonds. In fact, how
ever, the discussion at the January 31 status conference
did not focus on the requirements of the Act. Rather, the
court and the parties proceeded on the assumption that
the court’s waiver form was valid and that the Act could
simply be disregarded. Nothing in the discussion at the
conference suggests that the question presented by the
defense continuance request was viewed as anything other
than a case-management question that lay entirely within
the scope of the District Court’s discretion. Under these
circumstances, the best understanding of the position
taken by petitioner’s attorney at the January 31 status
conference is that granting the requested continuance
would represent a sound exercise of the trial judge’s dis
cretion in managing its calendar. This position was not
“clearly inconsistent” with petitioner’s later position that
the continuance was not permissible under the terms of
the Act. Accordingly, we hold that petitioner is not es
topped from challenging the excludability under the Act of
the 1997 continuance.
B
While conceding that the District Court “never made an
express finding on the record” about the ends-of-justice
balance, Brief for United States 30, the Government ar
gues that such an express finding did not need to be en
tered contemporaneously—and could be supplied on re
mand—because, given the circumstances in 1997, the
ends-of-justice balance in fact supported the 1997 continu
ance. We reject this argument. In the first place, the Act
requires express findings, and in the second place, it does
not permit those findings to be made on remand as the
Government proposes.
16 ZEDNER v. UNITED STATES

Opinion of the Court

The Act requires that 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. 18 U. S. C. §3161(h)(8)(A).
Although the Act is clear that the findings must be made,
if only in the judge’s mind, before granting the continu
ance (the continuance can only be “granted . . . on the
basis of [the court’s] findings”), the Act is ambiguous on
precisely when those findings must be “se[t] forth, in the
record of the case.” However this ambiguity is resolved, at
the very least the Act implies that those findings must be
put on the record by the time a district court rules on a
defendant’s motion to dismiss under §3162(a)(2).7 In
ruling on a defendant’s motion to dismiss, the court must
tally the unexcluded days. This, in turn, requires identify
ing the excluded days. But §3161(h)(8)(A) is explicit that
“[n]o . . . period of delay resulting from a continuance
granted by the court in accordance with this paragraph
shall be excludable . . . unless the court sets forth . . . its
reasons for [its] finding[s].” Thus, without on-the-record
findings, there can be no exclusion under §3161(h)(8).
Here, the District Court set forth no such findings at the
January 31 status conference, and §3161(h)(8)(A) is not
satisfied by the District Court’s passing reference to the
case’s complexity in its ruling on petitioner’s motion to
dismiss. Therefore, the 1997 continuance is not excluded
from the speedy trial clock.
The Government suggests that this error, stemming as
it does from the District Court’s technical failure to make
an express finding, may be regarded as harmless. Brief
for United States 31, n. 8. Harmless-error review under
Federal Rule of Criminal Procedure 52(a) presumptively
——————
7 The best practice, of course, is for a district court to put its findings

on the record at or near the time when it grants the continuance.
 Cite as: 547 U. S. ____ (2006) 17

Opinion of the Court

applies to “all errors where a proper objection is made,”
Neder v. United States, 527 U. S. 1, 7 (1999), and we have
required “strong support” to find an implied repeal of Rule
52, United States v. Vonn, 535 U. S. 55, 65 (2002). We
conclude, however, that the provisions of the Act provide
such support here.
The relevant provisions of the Act are unequivocal. If a
defendant pleads not guilty, the trial “shall commence”
within 70 days “from the filing date (and making public) of
the information or indictment” or from the defendant’s
initial appearance, whichever is later. §3161(c)(1) (em
phasis added). Delay resulting from an ends-of-justice
continuance is excluded from this time period, but “[n]o
such period of delay . . . shall be excludable under this
subsection unless the court sets 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 continu
ance outweigh the best interests of the public and the
defendant in a speedy trial.” §3161(h)(8)(A) (emphasis
added). When a trial is not commenced within the pre
scribed period of time, “the information or indictment
shall be dismissed on motion of the defendant.”
§3162(a)(2) (emphasis added). A straightforward reading
of these provisions leads to the conclusion that if a judge
fails to make the requisite findings regarding the need for
an ends-of-justice continuance, the delay resulting from
the continuance must be counted, and if as a result the
trial does not begin on time, the indictment or information
must be dismissed. The argument that the District
Court’s failure to make the prescribed findings may be
excused as harmless error is hard to square with the Act’s
categorical terms. See Alabama v. Bozeman, 533 U. S. 146,
153–154 (2001) (no “ ‘harmless’ ” or “‘technical’” violations of
the Interstate Agreement on Detainers’ “antishuttling”
provision in light of its “absolute language”).
Applying the harmless-error rule would also tend to
18 ZEDNER v. UNITED STATES

Opinion of the Court

undermine the detailed requirements of the provisions
regulating ends-of-justice continuances. The exclusion of
delay resulting from an ends-of-justice continuance is the
most open-ended type of exclusion recognized under the
Act and, in allowing district courts to grant such continu
ances, Congress clearly meant to give district judges a
measure of flexibility in accommodating unusual, complex,
and difficult cases. But it is equally clear that Congress,
knowing that the many sound grounds for granting ends-
of-justice continuances could not be rigidly structured, saw
a danger that such continuances could get out of hand and
subvert the Act’s detailed scheme. The strategy of
§3161(h)(8), then, is to counteract substantive open
endedness with procedural strictness. This provision
demands on-the-record findings and specifies in some
detail certain factors that a judge must consider in making
those findings. Excusing the failure to make these find
ings as harmless error would be inconsistent with the
strategy embodied in §3161(h). Such an approach would
almost always lead to a finding of harmless error because
the simple failure to make a record of this sort is unlikely
to affect the defendant’s rights. We thus conclude that
when a district court makes no findings on the record in
support of an §3161(h)(8) continuance, harmless-error
review is not appropriate.
V
We hold that that the 91-day continuance granted on
January 31 was not excluded from petitioner’s speedy trial
clock. Because this continuance by itself exceeded the
maximum 70-day delay provided in §3161(c)(1), the Act
was violated, and we need not address whether any other
periods of delay during petitioner’s case were not exclud
able. The sanction for a violation of the Act is dismissal,
but we leave it to the District Court to determine in the
first instance whether dismissal should be with or without
 Cite as: 547 U. S. ____ (2006) 19

Opinion of the Court

prejudice. See §3162(a)(2). The judgment of the Court of
Appeals is therefore reversed, and the case is remanded
for further proceedings consistent with this opinion.

It is so ordered.
 Cite as: 547 U. S. ____ (2006) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–5992
_________________

JACOB ZEDNER, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 5, 2006]

JUSTICE SCALIA, concurring in part and concurring in
the judgment.
I concur in the opinion of the Court with the exception of
its discussion of legislative history in Part III–A–2. For
reasons I have expressed elsewhere, I believe that the only
language that constitutes “a Law” within the meaning of
the Bicameralism and Presentment Clause of Article I, §7,
and hence the only language adopted in a fashion that
entitles it to our attention, is the text of the enacted stat
ute. See, e.g., Conroy v. Aniskoff, 507 U. S. 511, 518–528
(1993) (SCALIA, J., concurring in judgment). Here, the
Court looks to legislative history even though the remain
der of its opinion amply establishes that the Speedy Trial
Act is unambiguous. The Act’s language rejects the possi
bility of a prospective waiver, and even expresses the very
point that the Court relies on legislative history to sup
port—that the Act protects the interests of the public as
well as those of the defendant. See ante, at 9–10 (citing 18
U. S. C. §3161(h)(8)(A)). Use of legislative history in this
context thus conflicts not just with my own views but with
this Court’s repeated statements that when the language
of the statute is plain, legislative history is irrelevant.
See, e.g., United States v. Gonzales, 520 U. S. 1, 6 (1997).
“We have stated time and again that courts must presume
that a legislature says in a statute what it means and
means in a statute what it says there. When the words of
2 ZEDNER v. UNITED STATES

Opinion of SCALIA, J.

a statute are unambiguous, then, this first canon is also
the last: the judicial inquiry is complete.” Connecticut
Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992)
(citations and internal quotation marks omitted).
It may seem that there is no harm in using committee
reports and other such sources when they are merely in
accord with the plain meaning of the Act. But this sort of
intellectual piling-on has addictive consequences. To
begin with, it accustoms us to believing that what is said
by a single person in a floor debate or by a committee
report represents the view of Congress as a whole—so that
we sometimes even will say (when referring to a floor
statement and committee report) that “Congress has
expressed” thus-and-so. See, e.g., Conroy, supra, at 516–
517. There is no basis either in law or in reality for this
naive belief. Moreover, if legislative history is relevant
when it confirms the plain meaning of the statutory text,
it should also be relevant when it contradicts the plain
meaning, thus rendering what is plain ambiguous. Be
cause the use of legislative history is illegitimate and ill
advised in the interpretation of any statute—and espe
cially a statute that is clear on its face—I do not join this
portion of the Court’s opinion.