Attorney at Law
Copyright The National Institute for Trial Advocacy
Notre Dame Law School
The Speedy Trial Act of 1974 (“Speedy Trial Act”), which enacted 18 USCS §§3161 et seq., sets a strict time frame for federal criminal trials. Under the Act such trials must begin no sooner than 30 days after a defendant first appears through counsel and no later than 70 days after the defendant first appears. However, by far the vast majority of the Act consists of events that “exclude” time (or, are “excludable time”) from the Act, ensuring that most federal criminal trials occur months after filing. The Act sets out the time limits for the minimum and maximum period before a trial may start.
The practitioner must understand terms such as the “speedy trial clock” (which refers to the Act’s seemingly strict time lines for bringing a case to trial) and “excludable time” (which refers to time that does not count against the Act’s seemingly strict time lines).
The principal goals of the Act are twofold: first, to ensure the constitutional guarantee that a criminal defendant receive a “speedy” trial; second, to ensure that the trial is not so “speedy” that a criminal defendant loses other important rights. Speedy Trial Act litigation, therefore, usually centers on two issues: first, what events trigger the start or end of the relevant time period; second, which delays qualify as excludable time. Finally, the Act includes two important intervals, the period from arrest to indictment (the “First Interval”) and the period from indictment to the beginning of trial (the “Second Interval”).
Although the Act consists of 14 different sections, the practitioner should be primarily concerned with § 3161, which mandates specific time limits and lists delaying events that may be excluded in calculating those limits. It allows a maximum of 30 days between arrest and indictment and sets a minimum of 30 days and a maximum of 70 days between indictment (or first appearance through counsel) and trial. 18 USCS § 3161(a), (b). The practitioner should understand § 3162 (sanctions for failing to comply with the Act), § 3164 (persons designated as high risk or who are detained), § 3172 (definitions), and §3173 (the Act does not bar constitutional speedy trial claims) as well.
Federal criminal practitioners must understand how to determine when trial in a case is likely to begin in order to plan investigation and case management. In addition the practitioner should understand how particular districts and different judges address the Act. According to the Sourcebook of Criminal Justice Statistics, for fiscal year 2002 the median amount of time before a bench trial among all the districts was 3.0 months and the median time to a jury trial was 11.9 months. However, the statistics vary wildly from district to district. Anyone handling a case in an unfamiliar district should consider looking at the Sourcebook to see the average time to trial in that district. See www.albany.edu/sourcebook/1995/pdf/t541.pdf. Practitioners should also consult local rules as well as general orders for particular judges. Finally, practitioners in an unfamiliar district should consult local counsel.
Dismissal of Charges
If maximum limits under the Act are exceeded, the court must dismiss the charges or indictment if the defendant moves for dismissal before trial. Failure to move for dismissal prior to trial or entry of a plea of not guilty or nolo contendere waives any right to dismissal. 18 USCS § 3162(a). Whether to dismiss with or without prejudice is left to the discretion of the trial court. In making this decision, the court must consider the factors set out in § 3162(a) and must clearly articulate the reasons for its decision. United States v. Taylor, 487 U.S. 326, 337-38, 101 L. Ed. 2d 297, 108 S. Ct. 2413 (1988). As noted above, even if the time limits set by the Act are not exceeded, a delay in bringing the defendant to trial might nevertheless constitute a violation of his or her Sixth Amendment right to a speedy trial. 18 USCS § 3173.
Attorneys handling federal criminal cases often need a significant amount of time to prepare for trial and negotiate a settlement, i.e., counsel is usually asking for more time for trial. However, some cases may go on so long that a defendant should no longer have to go to trial and counsel will argue that the case should be dismissed because it took too long. The tension between those two issues causes many judges to become concerned that counsel may be trying to continue a case in order to later dismiss the case.
Attorneys researching speedy trial issues under the Act should be aware of distinctions between terms. First, “speedy trial” issues must be analyzed under both the constitutional speedy trial provisions (U.S. Constitution, Amendment VI) and the Act. Under certain circumstances, a delay may violate the Act but not the Constitution; likewise, under other circumstances a delay may violate the Constitution but not the Act.
Minimum Time to Trial
The Act provides that unless a defendant consents, trial may not begin less than 30 days after the defendant appears through counsel or elects to proceed in pro per. 18 USCS § 3161(c)(2). The Act does not specify sanctions when the government forces a defendant to trial with less than 30 days to prepare. Courts have held that in order to obtain a new trial for violation of § 3161(c)(2), a convicted defendant must show that the premature commencement of trial was prejudicial. United States v. Cisneros, 112 F.3d 1272, 1277 (5th Cir. 1997); United States v. Frost, 914 F.2d 756, 765 (6th Cir. 1990); United States v. Watkins, 811 F.2d 1408, 1411 (11th Cir. 1987).
Furthermore, where the government files a superseding indictment (rather than dismissing and re-indicting), the defendant is not automatically entitled to a 30-day continuance. United States v. Rojas-Contreras, 474 U.S. 231 (1985). However, other provisions of the Act may allow for a continuance to prepare for trial, such as § 3161(h)(8), discussed below.
The First Interval under the Act is the time between arrest and indictment. The government must file an indictment or information with the court within 30 days after the government either arrests a defendant or serves a defendant with a summons. If during this 30-day period no grand jury is in session in the district, the government gets an additional 30 days to file an indictment. 18 USCS § 3161(b).
The First Interval does not begin until federal charges are filed and a federal arrest or summons occurs. United States v. Henson, 945 F.2d 430, 436 (1st Cir. 1991); United States v. Thomas, 55 F.3d 144, 147 (4th Cir. 1995). Section 3161(b) requires that the defendant be arrested “in connection with” the relevant federal charge. This connection is not satisfied unless there is some coincidence of the pending federal complaint and federal custody based on that complaint. United States v. Bagster, 915 F.2d. 607, 609 (10th Cir. 1990). This means that an arrest on state charges will not trigger the clock. It also means that the clock only starts to run on the charge for which the defendant is arrested. If the defendant is later charged with different offenses, the original arrest date cannot be used to calculate the speedy trial interval for those different offenses. United States v. Cabral, 475 F.2d 715, 718 (1st Cir. 1973); United States v. Phipps, 319 F.3d 177 (5th Cir. 2003); United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972). When a defendant is in state custody and a federal complaint and/or detainer has been filed, the clock will not start running until the defendant is remanded to federal custody.
Also, the speedy trial clock is not triggered unless federal charges and federal arrest or custody coincide. Thus, an arrest and release without formal federal charges does not start the clock, nor does temporary custody for the purpose of questioning. Bagster, supra, 915 F.2d. at 609. The policy rationale for the Act is to limit the amount of time that a defendant has unresolved charges hanging over his head. Without pending federal charges, the Act’s provisions do not apply. United States v. Janik, 723 F.2d 537, 542 (7th Cir. 1983). The Eighth Circuit held that the Act was not triggered on the date of arrest by a federal agent when the defendant was immediately turned over to state officials for prosecution. United States v. Beede, 974 F.2d 948, 950-51 (8th Cir. 1992). In Beede, the court held the speedy trial clock did not start until federal charges were brought.
The speedy trial clock under the Act does not begin when a defendant arrested by state officers is subjected to questioning by federal officers, but not arrested on federal charges. United States v. Blackmon, 874 F.2d 378, 381-82 (6th Cir. 1989). The court in Blackmon noted that federal cooperation with state officials is not equivalent to a federal arrest and does not trigger the Act. Practitioners should pay close attention to the arrest and charging procedures followed in prosecutions arising from joint state-federal investigations.
The Act does not apply to civil detentions. Therefore, routine detentions by the Immigration and Naturalization Service do not trigger the 30-day period for filing an indictment. The protections of the Act will apply only if it can be shown that the INS detention is a “mere ruse” to detain the defendant for later criminal prosecution. United States v. Ortiz-Lopez, 24 F.3d 53, 54 (9th Cir. 1994); United States v. Cepeda-Luna, 989 F.2d 353, 355 (9th Cir. 1993).
The second interval regulated by the Speedy Trial Act is the time between the defendant’s indictment (or first appearance through counsel) and trial. If the defendant pleads not guilty, the trial must start within 70 days of the filing date and the publication of the indictment, or from the date the defendant appeared before the court in which the charge is pending. The 70-day clock runs on the latter of these two dates. 18 USCS § 3161(c)(1).
If the government arrests the defendant prior to indictment, then the 70-day clock starts on the day after the grand jury indicts the defendant. The day of indictment is not counted. United States v. Anderson, 902 F.2d 1105 (2d Cir. 1990); United States v. Antoine, 906 F.2d 1379, 1380 (9th Cir. 1990). If an indictment or information is sealed, the speedy trial clock cannot begin to run until it is unsealed. United States v. Villa, 470 F. Supp. 315, 325 (N.D.N.Y. 1979).
If the defendant is indicted before arrest, then the clock starts on the day the court arraigns the defendant in the court where the charges are pending. Therefore, if the first appearance is before a different district court the clock does not begin. United States v. Montoya, 827 F.2d 143, 152 (7th Cir. 1987); United States v. Wickham, 30 F.3d 1252, 1254-55 (9th Cir. 1994).
Not Guilty Plea
This statutory 70-day maximum applies only to cases where the defendant pleads not guilty. 18 USCS § 3161(c)(1). In contrast, a defendant who pleads guilty waives any right to a speedy trial claim unless he enters a conditional plea under Federal Rules of Criminal Procedure. SeeDoggett v. United States, 505 U.S. 650, 651, 112 S. Ct. 2690, 2691 (1994).
The Act is satisfied when trial commences, which is when jury selection begins. Therefore, voir dire stops the speedy trial clock unless there is an excessive unjustified delay occurring after voir dire. United States v. Andrews, 790 F.2d 803, 808 (10th Cir. 1986). Since trial must begin “within 70 days” of indictment or first appearance, trial must begin, at the latest, on Day 70. Thus, if 70 non-excludable days lapse, then the Act has been violated.
Speedy Trial Clock Interruptions
The speedy trial clock for the First and Second Intervals may stop and begin again under certain circumstances. Those circumstances are: (1) when the court grants a defense motion to dismiss; (2) if the charges in a complaint are dismissed by the court or dropped by the government. 18 USCS § 3161(d)(1). Thus, the government may gain time and tactical advantage by dropping a complaint and re-charging.
The same is not true if the government moves to dismiss an indictment. The government loses any advantage by dismissing the indictment, if the defendant is later charged with the same offense (or any offense required to be joined with the same offense), because the original 30-day and 70-day intervals are merely tolled for the period in which no indictment is pending. This different treatment of government-initiated dismissals protects against government circumvention of the defendant’s speedy trial rights. United States v. Rojas-Contreras, 474 U.S. 231, 239, 88 L. Ed. 2d 537, 106 S. Ct. 555 (1985) (Blackmun, J., concurring).
The Act identifies certain events that are excluded from the calculation of the 30- and 70-day time limits. Most courts hold that the excludable events in § 3161(h)(1)–(6) are “automatic” and , therefore, need not cause any “actual delay” to exclude time. See, United States v. Young, 45 F. 3d 1405, 1411 n. 6 (10th Cir. 1995); United States v. Montoya, 827 F. 2d 183 (7th Cir. 1987); United States v. Vogl, 374 F. 3d 976 (10th Cir. 2004). However, the “ends of justice” exclusion under § 3161(h)(8) requires certain facts and certain findings.
The automatic exclusions under § 3161(h)(1) include delays resulting from various types of other proceedings concerning the defendant. Proceedings to determine competency of the defendant are excluded. Excludable time includes the time required to examine the defendant, as well as the time required to analyze and report the results of that examination. United States v. Karoly, 924 F.2d 1053 (4th Cir. 1991). Examinations related to a potential insanity defense are also excludable. United States v Barnett, 968 F.2d 1189, 1191 (11th Cir. 1992).
The Act is tolled for the duration of a defendant’s trial on other state or federal charges. Excludable time includes all delays attributable to the other charges, not only time in court. United States v. Goodwin, 612 F.2d 1103, 1105 8th Cir.1980).
Interlocutory appeals automatically stop the speedy trial clock. 18 USCS § 3161(h)(1)(E). Excludable time begins with the filing of the appeal and extends until the issuance of mandate by the appellate court. Interlocutory appeals by the government related to exclusion of evidence (18 USCS § 3731) or wire interceptions (18 USCS § 2518(10)(b)) will toll the Act. Interlocutory appeals by either party pursuant to 28 USCS § 1292 will also toll the Act. The speedy trial clock is also stopped by appeal of a pretrial detention order or by petitions seeking extraordinary writs.
Section 3161(h)(1)(F) excludes delay resulting from any pretrial motion from the date the motion is filed, or made orally, through its final disposition. In Henderson v. United States, 476 U.S. 321, 326, 90 L.Ed. 2d 299, 306, 106 S. Ct. 1871, 1875 (1986)., the Supreme Court resolved a conflict among circuits by making it clear that all delay between filing and final disposition is excludable whether or not that delay is “reasonably necessary.” Even where a court defers its ruling on a motion until after trial has commenced, the entire period in which the motion remains pending is excludable time. United States v. Riley, 991 F.2d 120, 124 (4th Cir. 1993); United States v. Jernigan, 341 F.3d 1273, 1286-1287 (11th Cir. 2003). If, at any point, a defendant changes her mind about relief sought in a defense motion or changes her opposition to a government motion, the court and government should be promptly notified. Otherwise, the speedy trial clock remains tolled.
Delay caused by pretrial motions by one defendant is excludable as to the codefendants.
Section 3161(h)(1)(J) provides that the time a motion is actually under advisement of the court may be excluded from the speedy trial clock up to a maximum of 30 days. Generally, a motion is considered under advisement once a hearing has been held on the motion and all necessary materials submitted to the court, or once a motion not requiring a hearing is filed with necessary supporting materials. United States v. Gross, 76 F.3d1318, 1323 (5th Cir. 1996).
There is some variety in approaches among the circuits for the application of the Act to pro forma discovery motions. In United States v. Sutter, 340 F.3d 1022 (9th Cir. 2003) the trial court had conducted a hearing to address defense motions seeking discovery, and had resolved all the discovery issues, but then continued the motion in the event more disputes arose. On appeal, the issue was whether this continuing motion tolled the speedy trial clock. The Ninth Circuit held that the tolling period cannot be extended by continuing a motion as to which there is no live dispute. The court adopted a bright-line rule: “A discovery motion will be deemed under advisement as of the date of the last hearing or filing of supporting papers… unless consideration of the motion is continued until a date certain or the happening of an event certain.” Sutter, supra, 340 F.3d at 1028-1033.
However, in the Sixth Circuit discovery motions do not toll the speedy trial clock where a defendant files a pro forma discovery motion that is never ruled on or acted on by the district court. United States v. Mentz, 840 F.2d 315, 329 (6th Cir. 1988).
In the Fifth Circuit, if the government responds to a defense discovery motion and the district court takes no further action, the appellate court will assume that the motion’s “prompt disposition” occurred at the time of the government’s response. United States v. Franklin, 148 F.3d 451, 455 (5th Cir. 1998).
Another area of disagreement among the circuits is whether the time required to prepare pre-trial motions may be excluded. Most of the circuits allow preparation time for pre-trial motions to be excluded pursuant to § 3161(h)(8)(A), a subdivision that allows judges to grant continuances that serve the “ends of justice.” Judges must state on the record their reasons for finding that the ends of justice served by the continuance outweigh the interests of the public and defendant in a speedy trial. Given these requirements, most circuits have held that the speedy trial clock is only tolled for time that the trial judge “expressly designates” for preparation of motions. A court’s standard practice of setting deadlines, sua sponte, for filing of pretrial motions does not satisfy this requirement and does not amount to excludable motion preparation time. See e.g.United States v. Hoslett, 998 F.2d 648, 654-657 (9th Cir. 1993). Only the Seventh Circuit has taken a contrary position, allowing a sua sponte court order to result in excludable pretrial motion preparation time. SeeUnited States v. Barnes, 909 F.2d 1059, 1064-65 (7th Cir. 1990).
Transfers and Removals
Section 3161(h)(1)(G) excludes delays resulting from proceedings concerning the transfer of a case or the removal of a defendant from another federal judicial district. Circuits have disagreed as to whether this provision is broad enough to cover delays caused by intra-district transfers. The First and Fourth Circuits have held that time consumed in intra-district transfers is not excludable. See e.g.United States v. Penta, 898 F.2d 815, 819 (1st Cir. 1990), and United States v. Connor, 926 F.2d 81, 83 (4th Cir. 1991). The Seventh and Eleventh Circuits have held that the provision is broad enough to exclude delays related to both inter-district and intra-district transfers. See e.g.United States v. Cheek, 3 F.3d 1057, 1066 (7th Cir. 1993) andUnited States v. Glasser, 773 F.2d 1553, 1557 (11th Cir. 1985).
Section 3161(h)(1)(I) excludes the delay resulting from consideration by the court of a proposed plea agreement submitted to the court for its approval. This exclusion does not apply to time used for plea negotiations though negotiations may be excluded pursuant to a continuance granted under § 3161(h)(8). In considering a proposed plea agreement, the court is not bound by the 30-day limit imposed by § 3161(h)(1)(J). Rothrock v. United States, 85 F.3d 632 (7th Cir. 1996).
Under § 3161(h)(2) excludable time includes any delay caused by a written agreement between the government and the defendant that defers prosecution to allow the defendant to demonstrate good conduct. Such agreements must be approved by the court.
Section 3161(h)(3) provides that any period during which the defendant or an essential witness is absent or unavailable is excludable. This exclusion applies to both the pre-indictment and pretrial intervals. United States v. Nabors, 901 F.2d 1351, 1355 (6th Cir. 1990). Argument often centers on whether a witness is essential. Although definitions of “essential” may vary from circuit to circuit, the standard is not so high as to require the government to show that a conviction would be impossible to obtain without the witness. United States v. Hamilton, 46 F.3d 271, 277 (3rd Cir. 1995).
Section 3161(h)(4) excludes delays resulting from the defendant’s mental incompetence or physical inability to stand trial. Section 3161(h)(5) excludes delay resulting from the defendant’s treatment for drug addiction. Section 3161(h)(6) defines the excludable interval when the government moves to dismiss an indictment and then files charges against the defendant for the same offense. As discussed earlier, re-indictment under these circumstances will not start the speedy trial clock anew; the clock will simply be tolled for the interval defined by this subsection.
Section 3161(h)(7) excludes “a reasonable period of delay” resulting from joinder of the defendant with a codefendant whose time for trial has not run. The effect of this provision is that excludable delay counted for one defendant is ascribed to all codefendants. Defendants joined for trial fall within the Speedy Trial Act computation of the latest defendant. Henderson v. United States, 476 U.S. 321, 323 n.2, 90 L. Ed. 299, 106 S. Ct.1871 (1986). As discussed earlier, counsel should note that a delay that does not violate the Speedy Trial Act might nevertheless violate the defendant’s Sixth Amendment right to a speedy trial.
This subsection explicitly places a “reasonable” limitation on the period of delay. It is not clear, however, whether a defendant must attempt severance in order to assert this reasonableness limitation. Some courts have held that a defendant who fails to move for severance thereby waives objection to any claim under subdivision (h)(7) that his trial has been unreasonably delayed. See United States v. Mitchell, 723 F.2d 1040, 1048 (1st Cir. 1983), and United States v. Vasquez, 918 F.2d 329, 336-337 (2d Cir. 1990).
As mentioned above, the court may grant a continuance that serves the “ends of justice” so long as the court states on the record the reasons for finding that the ends of justice served by the continuance outweigh the interests of the public and defendant in a speedy trial. 18 USCS § 3161(h)(8). Such continuances may be granted on the motion of either party or sua sponte. Circuits are divided as to whether such continuances may be open-ended. The majority view holds that open-ended continuances may be granted for a reasonable period if they are reasonably related to the needs of the case. SeeUnited States v. Sabino, 274 F.3d 1053 (6th Cir. 2001); United States v. Spring, 80 F.3d 1450 (10th Cir. 1996); United States v. Lattany, 982 F.2d 866, 868 (3rd Cir. 1992). The minority view is that continuances pursuant to § 3161(h)(8) must be specifically limited in time and must be specifically supported on the record. SeeUnited States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) and United States v. Gambino, 59 F 3d 353, 358 (2d Cir. 1995).
The § 3161(h)(8) exclusions of time are frequently referred to as “complexity” findings because one factor allowing an ends of justice exclusion of time is the complexity of a case. Thus, many practitioners ask the court for a declaration of complexity to continue a trial in a complicated case. However, the practitioner should consult all the provisions of § 3161(h)(8) to ensure completing the record when trying to continue a trial.
Defense attorneys must be diligent in dealing with exclusionary periods under the Speedy Trial Act. There are numerous opportunities for delays that are legitimately excluded; having said that there are opportunities for defense attorneys to press for remedial action if the delays adversely affect their clients’ rights to a speedy trial.