UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 94-10091
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD ALLEN JONES a/k/a Reggie,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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(June 14, 1995)
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Reginald Allen Jones (Jones) appeals his
jury conviction, arguing that the indictment should have been
dismissed for undue delay under the Speedy Trial Act. We reverse
and remand.
Facts and Proceedings Below
On April 8, 1992, a federal grand jury returned an indictment
charging Jones and three co-defendants with conspiracy to import
heroin into the United States in violation of 21 U.S.C. §§ 952(a)
& 960. After the indictment was made public on April 14, 1992,
Jones pleaded not guilty, and trial was set for June 1, 1992.
Before trial, one of Jones's co-defendants, Peter Amakwe (Amakwe),
filed a motion for continuance on May 18, 1992, purportedly to
allow counsel an opportunity to complete unspecified discovery.1
In his motion, Amakwe asked to have the trial continued at least
until July 27, 1992, or "until such time as the Court determines
counsel will have adequate opportunity to complete discovery and
prepare in this complex case."
The June 1, 1992, trial date passed without a word or ruling
of record from the district court; Amakwe's proposed trial date of
July 27, 1992, likewise thus passed. Almost one year later, on
June 21, 1993, still with no ruling of record on the continuance
from the district court, Jones moved to dismiss the indictment for
failure to comply with the Speedy Trial Act.2 On July 8, 1993, the
court denied the motion, entered an order "memorializing" its
ruling on Amakwe's motion for continuance, and reset the trial for
September 7, 1993. Trial began on September 8, 1993, and the jury
returned a guilty verdict six days later.3 Jones was sentenced to
264 months in prison and 5 years of supervised release. From the
January 26, 1994, judgment of conviction, Jones now appeals.
1
Amakwe did not explain what discovery he needed to perform
or why exactly he needed extra time to do it; instead he merely
noted that the case was complex and "involv[ed] events [that] . .
. occurred outside the United States."
2
Jones has been continuously incarcerated since his arrest on
March 16, 1992.
3
Amakwe remained a co-defendant until trial, at which time he
entered a plea of guilty.
2
Discussion
Jones contends that the district court erred in denying his
motion to dismiss the indictment under the Speedy Trial Act, 18
U.S.C. §§ 3161-3174 (the Act). The Act requires that criminal
defendants be tried "within seventy days from the filing date (and
making public) of the information or indictment, or from the date
the defendant has appeared before a judicial officer of the court
in which such charge is pending, whichever date last occurs." Id.
§ 3161(c)(1). If a defendant is not brought to trial within this
period, then the indictment must be dismissed. Id. § 3162(a)(2).
Section 3161(h) of the Act, however, excludes from the calculation
of this seventy-day period certain specified delays, including
"[a]ny period of delay resulting from a continuance
granted by any judge on his own motion or at the request
of the defendant or his counsel or at the request of the
attorney for the Government, if the judge granted such
continuance on the basis of his findings that the ends of
justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy
trial. No such period of delay . . . shall be excludable
. . . 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." Id. §
3161(h)(8)(A).
The Act also excludes any "delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion." Id. §
3161(h)(1)(F).4 Section 3161(h)(1)(J), moreover, limits to thirty
4
It is irrelevant that Amakwe, rather than Jones, requested
the continuance. Unless or until the co-defendant's case is
severed from the defendant's, "the excludable delay of one
codefendant may be attributed to all defendants." United States
v. Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994), cert. denied, 115
3
days any extension "reasonably attributable to any period . . .
during which any proceeding concerning the defendant is actually
under advisement by the court." Id. § 3161(h)(1)(J); see Henderson
v. United States, 106 S.Ct. 1871, 1875-76 (1986).
It is undisputed that the seventy-day period began on April
14, 1992, the date the indictment was made public, and that the
trial began roughly one year and five months later, on September 8,
1993. This case turns on whether Amakwe's motion for continuance
resulted in the exclusion of sufficient time from this intervening
period, under section 3161(h)(8)(A), to bring Jones's trial within
the Act's seventy-day rule.5 Relying on section 3161(h)(1)(F),
Jones argues that the motion stopped the clock only from May 18,
1992, until June 1, 1992, the original trial date, at which time
the motion became moot because the scheduled trial did not take
place. The government responds that the continuance was granted,
and the trial suspended indefinitely, the day the motion was
submitted and that, consequently, any and all delay from May 18,
1992, until trial was excludable from the critical seventy-day
period.6
S.Ct. 1113 (1995).
5
Although there were pre-trial motions in this case, other
than the motion for continuance, which also reduced the total
number of excluded days, the government has conceded that these
other delays would not together "be sufficient to bring the
speedy trial total to under seventy days."
6
At oral argument, the government conceded that there was no
factual basis for the assertion in its brief that Amakwe's motion
was granted the day it was submitted.
4
It is positively unclear what action the district court took,
or when it took it, with respect to Amakwe's motion for
continuance. The record is silent in this regard until July 8,
1993, when, in denying Jones's motion to dismiss, the district
court said, "On May 18, 1992, . . . Amakwe filed a motion for
continuance. The Court granted the motion and continued the trial
without setting a trial date." The same day, the district court
issued an order "memorializing" its ruling on Amakwe's motion for
continuance. In this order, the court explained that the motion
had been granted "on the ground that the ends of justice outweigh
the best interest of the public and the defendant in a speedy
trial." The court gave as its reason for this finding the need to
allow Amakwe's counsel "an opportunity to complete discovery and
prepare in this complex case."7 The court's July 8, 1993, order
does not indicate when the court acted on the motion for
continuance or in what form or manner such action was manifested or
communicated to the parties or the clerk's office.
Although the district court stated that it was "memorializing"
an earlier grant of the continuance, from the above it is unknown
when exactly the district court originally granted the motion. It
is reasonable to infer, however, that the motion was granted on or
before June 1, 1992, the original trial date, as no trial took
place then, and further, that the continuance then granted was
7
In granting a continuance under section 3161(h), a district
court "must consider at least one of the factors specified by the
Act." United States v. Ortega-Mena, 949 F.2d 156, 159 (5th Cir.
1991). Here, the district court cited section 3161(h)(8)(B)(ii),
which allows continuances in complex cases.
5
indefiniteSQalthough nothing in the July 8, 1993, order so
indicatesSQas there was no resetting of the trial date at that
time. Even so, the court did not cause the entry of a ruling on
the docket sheet or explain anywhere its reason for the continuance
until its July 8, 1993, order. Indeed, in the year between
Amakwe's motion for continuance and Jones's motion to dismiss,
there is absolutely nothing in the record regarding Amakwe's
motionSQno indication whatsoever that the district court granted,
postponed, or in any way reacted to it.8 Nor is there any
indication of record that Amakwe ever asked for additional time
beyond his original request that the trial be continued until at
least July 27, 1992.
We conclude that, under the rather extreme circumstances of
this particular case, the open-ended continuance silently granted
by the district court constitutes an abuse of the Speedy Trial
Act.9 Even accepting that the district court considered and
8
During this period, on-the-record activity in Jones's case
was essentially limited to the filing and granting of a November
1992 motion to substitute counsel and then, in early 1993, the
district court's action on a series of pretrial motions, mostly
related to discovery.
9
For the continuance to stop the clock, the district court
must state on the record its reasons for finding that the
interests of justice outweigh the defendant's interest in a
speedy trial. 18 U.S.C. § 3161(h)(8)(A). The government claims
that the district court performed an ends-of-justice analysis
before implicitly granting the motion on May 18, 1992, but simply
failed to enter the analysis in the record at that time.
According to the government, the Act does not require that the
district court's findings be entered contemporaneously with the
grant of the continuance. Jones maintains that this Court's
recent decision in United States v. Blackwell, 12 F.3d 44, 47
(5th Cir. 1994), requires a district court to enter an ends-of-
justice analysis on the record at the same time that it grants
the continuance. Although in Blackwell we suggested as much, the
6
granted Amakwe's motion for continuance on or before the original
trial date, it is evident from the record that the duration of the
continuance was unconsidered and left completely unresolved until
Jones's motion to dismiss. In his motion for the continuance,
Amakwe wrote,
"It is hereby requested that my trial be continued until
such time as the Court determines counsel will have
adequate opportunity to complete discovery and prepare in
this complex case. It is requested that this case not be
reset prior to July 27, 1992."
language is dicta because the district court in that case, rather
than merely not entering contemporaneous findings on the record,
never entered any findings at all, and it was that failure which
violated the express terms of section 3161(h)(8)(A). Here, in
contrast, the district court did perform an ends-of-justice
analysis, but did so on July 8, 1993, almost a year after the
continuance was implicitly granted.
To resolve this case, we need not turn Blackwell's dicta
into law. We note, however, that virtually every Circuit has
held that the entry of findings in the record after granting the
continuance is not reversible error so long as the findings were
not actually made after the fact. See United States v. Crawford,
982 F.2d 199, 204 (6th Cir. 1993) (holding that the "reasons
stated must be the actual reasons that motivated the court at the
time the continuance was granted"); United States v. Vasser, 916
F.2d 624, 627 (11th Cir. 1990) (same), cert. denied, 111 S.Ct.
1688 (1991); United States v. Janik, 723 F.2d 537, 544-45 (7th
Cir. 1983) (same); United States v. Brooks, 697 F.2d 517, 522
(3d Cir. 1982) (not requiring that the reasons be entered on the
record at the same time that they are made), cert. denied, 103
S.Ct. 1526 (1983); United States v. Clifford, 664 F.2d 1090, 1095
(8th Cir. 1981) (same); United States v. Edwards, 627 F.2d 460,
461 (D.C. Cir.) (same), cert. denied, 101 S.Ct. 211 (1980). In
United States v. Williams, 12 F.3d 452, 460 n.37 (5th Cir. 1994),
we stated, citing United States v. Rush, 738 F.2d 497, 507 (1st
Cir. 1984), cert. denied, 105 S.Ct. 1355 (1985), "[a]lthough the
reasons for an 'ends of justice' continuance must be articulated,
they need not be articulated at the time the continuance is
granted." We note, finally, that the Act itself does not
expressly require that the ends-of-justice findings be entered
contemporaneously on the record, just that they be entered on the
record. 18 U.S.C. § 3161(h)(8)(A).
7
From the above, it is reasonable to infer that Amakwe needed until
July 27, 1992, to complete some unspecified discovery. Beyond
that, the motion is conclusory and uninformative; it fails to
explain what and why discovery remained to be done and, further,
how long it would take.
There is thus nothing in the motion itself from which the
district court could have concluded that Amakwe needed or should
have received a continuance longer than the roughly two months he
had specifically requested in his motion. The district court's
July 8, 1993, order gives no indication that the court had
considered an indefinite continuance beyond July 27, 1992, as
serving the ends of justice or, if so, why. Nor is there any
indication that the district court ever held (or scheduled) a
hearing or otherwise sought or received any more specific
information concerning the appropriate duration of the continuance.
In short, there is nothing in the record to justify a continuance
beyond the July 27, 1992, date proposed in Amakwe's motion, and in
any event no more than that portion of the continuance can
justifiably be excluded from the Act's seventy-day period.
Accordingly, seventy non-excludable days elapsed before trial, and
the indictment should have been dismissed on that basis. Cf.
United States v. Crawford, 982 F.2d 199, 204-05 (6th Cir. 1993)
(dismissing the indictment where the district court silently
granted an ends-of-justice continuance without specifying or
approximating its length).
We do not mean to suggest, however, that a district court
never has the authority to grant an open-ended continuance, merely
8
that such a continuance for any substantial length of time is
extraordinary and must be adequately justified by the circumstances
of the particular case.10 See Lattany, 982 F.2d at 881-82 (holding
that open-ended continuances are permissible insofar as they are
reasonable). There will be some situations in which it is
impossible, or at least quite difficult, for the parties or the
court to gauge the length of an otherwise justified continuance.
As the First Circuit has stated, although
"it is generally preferable to limit a continuance to a
definite period for the sake of clarity and certainty[,]
. . . at the same time it is inevitable that in some
cases . . . a court is forced to order an (h)(8)
continuance without knowing exactly how long the reasons
supporting the continuance will remain valid." Rush, 738
F.2d at 508.11
In such circumstances, the district court may decide to continue
the trial indefinitely, at least until the defendant or the
government is able to propose a more specific trial date or until
10
The Circuits are split over the question whether open-ended
continuances are permissible under the Speedy Trial Act. Whereas
in the First and Third Circuits, for example, open-ended
continuances are permissible so long as they are ultimately
reasonable in length, United States v. Lattany, 982 F.2d 866,
880-83 (3d Cir. 1992), cert. denied, 114 S.Ct. 97 (1995); United
States v. Rush, 738 F.2d 497, 508 (1st Cir. 1984), cert. denied,
105 S.Ct. 1355 (1985), the Ninth Circuit, and apparently only the
Ninth Circuit, has assumed a stricter stance, requiring the
dismissal of any continuance that is not "specifically limited in
time." See United States v. Jordan, 915 F.2d 563, 565-66 (9th
Cir. 1990).
11
In Rush, for instance, the district court had explicitly
granted an open-ended continuance because a trial of several co-
defendants was taking place in another jurisdiction. Rush, 738
F.2d at 506. As the reason for the continuance, the pending
trial, was of uncertain duration, so too, necessarily, was the
continuance itself.
9
there exists enough additional information for the district court
to set one.
Nothing in the record of this case, however, establishes the
need for, or even the desirability of, an indefinite continuance
with an ultimate duration anywhere near as long as that here.
Amakwe's own motion implies that he needed the trial continued only
until July 27, 1992, more than a year earlier than the ultimate
trial date of September 8, 1993. Indeed, not only does the record
not justify an open-ended continuance, it also reflects that the
indefiniteness and duration resulted from oversight rather than
deliberation. Given these particular circumstances, we hold that
the indictment should have been dismissed for excessive pre-trial
delay.
We remand the case for the district court to vacate Jones's
conviction and to determine whether the dismissal should be with or
without prejudice under 18 U.S.C. § 3162(a)(2). Blackwell, 12 F.3d
at 48. Although we now see no reason why the dismissal in this
case should not be without prejudice, the district court should
consider this question in the first instance. See United States v.
Johnson, 29 F.3d 940, 945-46 (5th Cir. 1994); United States v.
Peeples, 811 F.2d 849, 850 (5th Cir. 1987).
Conclusion
The judgment of the district court is reversed, and the case
is remanded with instructions to vacate the conviction and dismiss
the indictment, either with or without prejudice.
REVERSED and REMANDED
10