OPINION OF THE COURT
ZEDNER V. UNITED STATES
547 U. S. ____ (2006)
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
federal criminal trial to begin within 70 days after a defendant 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 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 attempting 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
complexity 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 continuance, this
time until November 8.
At the November 8 status conference,
petitioner requested, without opposition from the Government, a
further adjournment to January 1997. Concerned about the difficulty
of fitting petitioner’s trial into its heavily scheduled 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. Petitioner’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 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 information 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, petitioner 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 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 discussion
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
proceedings 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 withdraw. 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 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
indictment 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,” mentioning 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, petitioner 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,[
Footnote
1] and the court sentenced him to 63 months of
imprisonment.
The Court of Appeals affirmed the judgment of
conviction.[
Footnote 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] 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 properly
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
analyzing 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 information or indictment or the defendant’s initial
appearance, 18 U. S. C. §3161(c)(1), but the Act recognizes
that criminal cases vary widely and that there are valid reasons
for greater delay in particular cases. To provide the necessary
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 physically unable to stand trial,” §3161(h)(4), and “[a]
reasonable 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), which governs ends-of-justice
continuances, and which we set out in relevant part in the
margin.[
Footnote 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 public’s and
defendant’s interests in a speedy trial. This provision gives the
district court discretion—within limits and subject to specific
procedures—to accommodate limited delays for case-specific
needs.
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 powerful incentive to be careful
about compliance. The less severe sanction (dismissal without
prejudice) lets the court avoid unduly impairing the enforcement of
federal criminal laws—though even this sanction imposes some costs
on the prosecution and the court, which further encourages
compliance. When an indictment is dismissed without 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 applicable 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 presented by the unusual procedures followed in this
case.
III
Petitioner contends, and the
Government does not seriously dispute, that a defendant may not
prospectively waive the application of the Act.[
Footnote 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 requests 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 “effective preparation” of
counsel. §3161(h)(8)(B)(iv). If a defendant 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 designed solely to protect a defendant’s right to a speedy
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 continuance—even
one “granted … at the request of the defendant”—the district court
must find “that the ends of justice 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 punishment. 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 reducing 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
interests that go beyond the rights of the defendant; although the
Sixth Amendment recognizes a societal interest in prompt
dispositions, it primarily safeguards the defendant’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, 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 prospectively waive the strictures of the Act. This
provision states that “[f]ailure of the defendant to move for
dismissal prior to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to dismissal
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 allowed 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 prosecution 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) 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.[
Footnote 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.[
Footnote
6]
For these reasons, we reject the District
Court’s reliance on §3162(a)(2) and conclude a defendant may not
prospectively 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 continuance without making an express ends-of-justice
finding …, basic principles of judicial estoppel preclude
petitioner 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 applying 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 interests
have changed, assume a contrary position, especially 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 opposing
party if not estopped.”
Id., at 750–751 (citations and
internal quotation marks omitted).
In applying this doctrine to the
present case, we must first identify the “position” of petitioner’s
that the Government 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 authenticity 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 prospective 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 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, however, 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
discretion 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 estopped 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
argues that such an express finding did not need to be entered
contemporaneously—and could be supplied on remand—because, given
the circumstances in 1997, the ends-of-justice balance in fact
supported the 1997 continuance. 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.
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 continuance
(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).[
Footnote 7] In
ruling on a defendant’s motion to dismiss, the court must tally the
unexcluded days. This, in turn, requires identifying 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 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)
(emphasis 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 continuance 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 prescribed 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 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 continuances, 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 findings 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 excludable. 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 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.
Footnote 1
The Government dismissed the other counts
before trial.
Footnote 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).
Footnote 3
Title 18 U. S. C. §3161(h)(8) provides:
“(A) Any 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 resulting from a continuance granted by the
court in accordance with this paragraph 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 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 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 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.”
Footnote 4
We left this question open in
New
York v.
Hill, 528 U. S. 110, 117, n. 2
(2000).
Footnote 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.
Footnote 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.
Footnote 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.
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