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Third Circuit: Reason for Continuance Must be Given to Exclude Delay from 70-Day Limit of Speedy Trial Act or Dismissal of Indictment

by Douglas Ankney

The U.S. Court of Appeals for the Third Circuit ruled that a district court must state the factual basis for a continuance or use language that invokes a particular provision of the Speedy Trial Act (“Act”) in order to exclude the delay from the 70-day time limit provided for in the Act.

Kevin L. Reese was indicted on 12 felonies. He was arraigned on January 4, 2016. Trial was scheduled for March 7, 2016. Between February 23 and September 1, 2016, the district court granted six motions for continuance—five filed by the Government with defense counsel’s consent and one by defense counsel. In each order, the court specified the time was excluded under the Act on the ground the additional time would enable the parties to reach a plea agreement.

Reese’s trial was scheduled for October 24, 2016. But on October 12, 2016, the trial court sua sponte entered an order rescheduling Reese’s trial for December 5, 2016, stating it was “in accordance with the court’s calendar.” The court also stated the delay of 42 days would be excluded under the Act because the court “finds that the ends of justice served by this order outweigh the best interests of the public and the defendant in a speedy trial....” 

Then, on November 10, 2016, the trial court again postponed the trial until February 22, 2017. Reese’s counsel responded that the date “will work for me.” Nothing was said of whether the delay would be excluded under the Act. Just before trial, Reese, via counsel, filed a motion to dismiss based on a violation of the 70-day time limit of the Act. The court denied the motion, but in its decision, no reason for the delay from November 10 to February 15 was provided. Reese appealed.

The Third Circuit began by observing that the Act generally requires a federal criminal trial to begin within 70 days after a defendant is charged or appears in the court where the charges are pending, whichever is later. 18 U.S.C. § 3161(c)(1). But there are provisions for which specified periods of delay may be excluded from the 70-day time limit. Zedner v. United States, 547 U.S. 489 (2006). Some of the provisions exclude time automatically while other provisions must be invoked. Bloate v. United States, 559 U.S. 196 (2010). 

Among the provisions that must be invoked is the time excluded for “the ends of justice.” Zedner. To do so, the court must set forth its reasons, either orally or in writing, for finding the ends of justice served by granting the continuance outweighs the interests of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(7)(A). A district court may give the factual basis for an ends-of-justice continuance after it is entered but before ruling on a motion to dismiss the indictment. United States v. Brooks, 697 F.3d 517 (3d Cir. 1982). Or the district court may exclude time for the ends of justice without citing the Act as long as the court explains the factual basis for the continuance at the time the order is entered. United States v. Rivera Construction Co., 863 F.2d 293 (3d Cir. 1988). But if a district court enters a continuance order without stating a factual basis for excluding time under the Act or using language that invokes it, the delay caused by the continuance is not excluded, and the court cannot exclude it in hindsight, i.e., it cannot be ordered excluded nunc pro tunc. United States v. Brenna, 878 F.2d 117 (3d Cir. 1989).

The November 10, 2016, order in Reese’s case neither invoked the Act nor used any language to suggest an exclusion under it for the continuance until February 15, 2017. Since this period exceeded the 70-day time limit of the Act, the Court concluded that the district court should have granted Reese’s motion to dismiss the indictment. The Government argued, inter alia, that Reese waived his speedy trial argument because his attorney acquiesced to the continuance. But the Court cited Zedner, stating, “[T]he Supreme Court squarely rejected the prospective exclusion of time on the grounds of mere consent or waiver.” 

The Court rejected the Government’s argument that Reese is not entitled to relief under the Act because he did not establish prejudice. The Court explained that establishing prejudice is required in the Sixth Amendment right to a speedy trial context, not when the Act is at issue. Citing Zedner, the Court instructed, “The remedy provision of the Act leaves no room for a prejudice or harmless error analysis 

Accordingly, the Court reversed the district court’s decision, vacated Reese’s conviction, and remanded for dismissal of the indictment with instructions that the district court determine in the first instance whether the dismissal is with or without prejudice per the factors in 18 U.S.C. § 3162(a)(2). See: United States v. Reese, 917 F.3d 177 (3d Cir. 2019). 

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