Filed: Dec. 29, 2011
Latest Update: Feb. 22, 2020
Summary: Counsel for the, defendant informed that will [sic] be filing a, motion requesting continuance of the jury, trial set for August 11, 2009 in order to, attempt to reach a plea agreement with the, United States.days of excludable delay under the STA.United States v. Breen, 243 F.3d 591, 596 (2d Cir.
United States Court of Appeals
For the First Circuit
No. 10-1413
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN HUETE-SANDOVAL, a/k/a Oswaldo Rosario, a/k/a Armando
González, a/k/a Armando González-Santoni, a/k/a Osvaldo Rosario,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Siler,* and Howard
Circuit Judges.
Vivianne M. Marrero-Torres, Assistant Federal Public Defender,
with whom Héctor E. Guzmán, Jr., Federal Public Defender, was on
brief for appellant.
Evelyn Canals-Lozada, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division and Luke Cass, Assistant United States Attorney, United
States Attorney's Office were on brief, for appellee.
*
Of the Sixth Circuit, sitting by designation.
December 29, 2011
HOWARD, Circuit Judge. On September 22, 2009, a jury
convicted defendant-appellant Juan Huete-Sandoval ("Huete") of
various crimes related to his alleged fraudulent acquisition and
use of a United States passport. On appeal, Huete argues, inter
alia, that the district court erred in denying his motion to
dismiss for an alleged violation of the Speedy Trial Act ("STA").
We agree with his position. For the reasons elucidated below, we
reverse the district court's order and remand with instructions to
determine whether the indictment should be dismissed with or
without prejudice.1
I. Background
On May 13, 2009, Huete was charged in a three-count
indictment with making false statements in a passport application,
falsely representing that he was a United States citizen, and
aggravated identity theft. See 18 U.S.C. §§ 1542, 911, 1028A. At
his arraignment on May 18, Huete pled not guilty, and the
magistrate judge granted, sua sponte, five days for discovery and
ten days thereafter for additional motions. Neither party
objected, and no pretrial motions were filed. Trial was
subsequently set for August 11, 2009.
1
Huete additionally raised a Confrontation Clause challenge,
asserting that an admitted exhibit should have been excluded on the
grounds that it was testimonial in nature. Because we agree with
Huete's argument that his right to a speedy trial was violated,
thus warranting dismissal, we need not address the issue of
confrontation on this appeal.
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On July 16, during a pretrial conference, the parties
informed the court that a plea offer had been extended to Huete.
Discussions proved unfruitful, however, and at a July 22 status
conference, defense counsel indicated his intent to request a
continuance to facilitate further plea negotiations. The court
noted the following in the status conference minutes:
Parties were not able to reach a plea
agreement in this case. Counsel for the
defendant informed that will [sic] be filing a
motion requesting continuance of the jury
trial set for August 11, 2009 in order to
attempt to reach a plea agreement with the
United States. The Court informed that in the
event more time for plea negotiation is
requested, maybe [sic] granted pursuant to 18
U.S.C. § 3161(h)(7)(A), that the Speedy Trial
shall be tolled "in the best interest of
justice" and "such action outweighs the best
interest of the public and the defendant in a
speedy trial" in order for the parties to
reach an agreement in this case.
Minutes of July 22, 2009 Pretrial Conference at 1, United States v.
Huete-Sandoval, Cr. No. 09-170 (D.P.R. July 22, 2009) (emphasis
added). Huete never requested a continuance, and no further plea
negotiations occurred. Instead, on August 7, just four days before
the trial was scheduled to begin, Huete filed a motion to dismiss
the indictment, alleging that his statutory right to a speedy trial
had been violated. See 18 U.S.C. § 3161(c)(1) (requiring criminal
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trials to begin within seventy days of the later of the defendant's
initial appearance or the filing of the charging instrument).2
The court denied Huete's motion, finding that the fifteen
days granted for discovery and preparation of pretrial motions were
excludable under the STA, and that his trial would therefore begin
well within the prescribed seventy-day period. See id.
§§ 3161(c)(1), 3161(h)(1). Huete was ultimately convicted by a
jury on all three counts and sentenced to twenty-nine months'
imprisonment. This timely appeal ensued.
II. Analysis
We review "the district court's denial of a motion to
dismiss based upon the Speedy Trial Act de novo as to legal rulings
and for clear error as to factual findings." United States v.
Maxwell, 351 F.3d 35, 37 (1st Cir. 2003). We also review de novo
the calculation of days included and excluded for purposes of the
STA. United States v. Barnes,
159 F.3d 4, 10-11 (1st Cir. 1998).
The Speedy Trial Act requires that a criminal defendant's
trial commence within seventy days from the filing of the
information or indictment, or from the date of the defendant's
initial appearance, whichever occurs later. 18 U.S.C.
§ 3161(c)(1). If the defendant is not brought to trial within such
2
Huete did not assert that his right to a speedy trial under
the Sixth Amendment had been violated, nor does he on appeal. He
limits the scope of his argument to the statutory prescriptions of
the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and we limit our
analysis accordingly.
-5-
time, "the information or indictment shall be dismissed on motion
of the defendant," either with or without prejudice. Id.
§ 3162(a)(2). Certain delays, however, are recognized by the Act
as justifiable, and are therefore excludable from the seventy-day
clock.
Id. § 3161(h). Two such exclusions are of particular
relevance to this appeal.
The first, invoked by the district court in denying
Huete's motion to dismiss, requires the automatic exclusion of
"[a]ny period of delay resulting from other proceedings concerning
the defendant, including but not limited to" eight enumerated
subcategories of proceedings. Id. § 3161(h)(1). Specifically,
subsection (h)(1)(D) compels the automatic exclusion of "[a]ny
period of 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)(D).
The second relevant exclusion, commonly referred to as
the "ends-of-justice" provision, permits the court to exclude
delays resulting from continuances granted "on the basis of [the
judge's] 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." Id. § 3161(h)(7)(A). This exclusion, unlike
§ 3161(h)(1), is not automatic; rather, the court is required to
"set[] forth, in the record of the case, either orally or in
writing, its reasons" for granting an ends-of-justice continuance.
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Id. Such findings must, at the very least, be entered into the
record by the time a district court rules on a defendant's motion
to dismiss under § 3162(a)(2). Zedner v. United States,
547 U.S.
489, 507 (2006).
Here, Huete's seventy-day speedy trial clock was
triggered by his May 18 arraignment and stopped when he filed his
motion to dismiss on August 7. See 18 U.S.C. § 3161(c)(1); United
States v. Hood, 469 F.3d 7, 9 (1st Cir. 2006) ("The speedy trial
clock . . . stops the day the defendant files a motion to dismiss
for lack of a speedy trial."). Excluding the July 16 and July 22
pretrial conferences, we thus calculate that a total of seventy-
nine days elapsed between Huete's arraignment and his motion to
dismiss. See United States v. Santiago-Becerril, 130 F.3d 11, 16
(1st Cir. 1997) (finding the day of a pretrial conference
excludable pursuant to 18 U.S.C. § 3161(h)(1)). Huete's appeal
hinges, therefore, on whether there were at least nine additional
days of excludable delay under the STA. The government identifies
two distinct time frames, either of which, if excluded, would bring
Huete's trial date within the permissible bounds of the Speedy
Trial Act's seventy-day window. We consider each of these in turn.
A. Time granted for discovery and pretrial motions
The first potential period of excludability is comprised
of the fifteen days granted by the magistrate judge for discovery
and preparation of pretrial motions. In its order denying Huete's
-7-
motion to dismiss, the district court deemed this delay excludable
from the speedy trial calculus, and strongly implied its dependence
on § 3161(h)(1) in doing so.3 This finding was not inconsistent
with First Circuit precedent then in effect. In United States v.
Jodoin, 672 F.2d 232 (1st Cir. 1982), upon which the district court
relied in part, we suggested that delays emanating from the
preparation of pretrial motions might fall within the ambit of
§ 3161(h)(1). See
id. at 237-39. The Supreme Court, however, in
a decision post-dating the district court's order, held otherwise.
In Bloate v. United States, 130 S. Ct. 1345 (2010), the
Court explicitly abrogated Jodoin, along with decisions of seven
other Courts of Appeals, and interpreted the scope of
§ 3161(h)(1)(D) more narrowly. Relying principally on the
statutory language -- which permits the exclusion of "delay
resulting from any pretrial motion, from the filing of the motion
through the . . . disposition of[] such motion" -- the Court held
that delays resulting from mere preparation of pretrial motions are
not automatically excludable under § 3161(h)(1)(D). See Bloate,
3
The district court's brief order rested predominantly on
language from United States v. Garrett, 45 F.3d 1135 (7th Cir.
1995), and United States v. Castillo-Pacheco,
53 F. Supp. 2d 55 (D.
Mass. 1999), both of which held that delay due to the preparation
of pretrial motions is excludable pursuant to § 3161(h)(1).
Specifically, the order quoted Castillo-Pacheco for the proposition
that "[t]he majority of circuits has agreed that delay attributable
to the preparation of pretrial motions is excludable under
§ 3161(h)(1)."
See 53 F. Supp. 2d at 58.
-8-
130 S. Ct. at 1353 (emphasis added).4 Rather, the Court found that
such delays may only be excluded pursuant to the ends-of-justice
provision, provided that the trial court makes the appropriate
case-specific findings that the benefits outweigh the costs, as
required by § 3161(h)(7).
Id. at 1353-54.5
Here, neither the magistrate judge in granting the time,
nor the trial judge in denying Huete's motion to dismiss, made the
requisite ends-of-justice finding. The government contests this
point, asserting that the trial judge couched his order in the
language of § 3161(h)(7). This argument, however, is not supported
by the record. To the extent that the order referenced the text of
subsection (h)(7), it was purely for the purpose of delineating the
STA's general exclusionary framework, and omitted the necessary
case-specific cost-benefit analysis. See 18 U.S.C.
4
The precise issue in Bloate was whether there should have
been an automatic exclusion for the period commencing with the
defendant's request to extend the deadline previously set for
filing pretrial motions. The Court's holding, however, applies to
pretrial motion preparation time in gross.
5
The government contends that time granted for preparation of
pretrial motions, while perhaps not automatically excludable
pursuant to § 3161(h)(1)(D), may nevertheless be automatically
excluded as "other proceedings" under the non-limiting language of
§ 3161(h)(1). This argument was directly foreclosed by the Court
in Bloate. See Bloate, 130 S. Ct. at 1352 ("The Government contends
that the time the District Court granted petitioner to prepare his
pretrial motions is automatically excludable under subsection
(h)(1). We disagree, and conclude that such time may be excluded
only when a district court enters appropriate findings under
subsection (h)(7)." (emphasis added)).
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§ 3161(h)(7)(A). The order cannot reasonably be read as basing the
exclusion upon the ends-of-justice provision.
In any event, whether or not the district court's order
drew support from § 3161(h)(7) is of no moment, as the ends-of-
justice finding must be recorded "by the time [the] district court
rules" on the motion to dismiss. See Zedner, 547 U.S. at 506-07;
see also
id. at 506 ("[T]he Act is clear that the [ends-of-justice]
findings must be made, if only in the judge's mind, before granting
the [delay for discovery and preparation of pretrial motions]."
(emphasis added)). No such timely finding was made.
Thus, in light of Bloate, and given the absence of any
recorded ends-of-justice finding, the district court's exclusion of
ten days for preparation of pretrial motions constituted reversible
error.6 See, e.g., United States v. O'Connor, 656 F.3d 630, 638
(7th Cir. 2011) (applying Bloate retroactively, and holding that
the district court erred in automatically excluding time for
preparation of pretrial motions pursuant to 18 U.S.C. §
3161(h)(1)(D), where no ends-of-justice finding was made); United
States v. Oberoi,
379 F. App'x 87 (2d Cir. 2010) (summary order)
(same).7
6
We are not required to address the five days attributable to
discovery, but we have significant doubt that such time was
automatically excludable.
7
Not only did Huete preserve the STA issue, but also because
his appeal is on direct review, Bloate applies retroactively. See
Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("[A] new rule for
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B. July 22 to August 7, 2009
The second potential period of excludability, asserted by
the government as an alternative basis for affirmance, encompasses
the sixteen days between the July 22 pretrial conference and the
filing of Huete's motion to dismiss on August 7. Relying on our
holding in United States v. Scantleberry-Frank, 158 F.3d 612 (1st
Cir. 1998), the government contends, in essence, that by indicating
his intent to request a continuance but never doing so, Huete
effectively sandbagged the proceedings, lulling the court and the
prosecution into a false sense of security only to turn around and
employ the trial schedule as grounds for dismissal. While we
caution against such conduct in the abstract, the facts presented
here do not support the government's argument.
In Scantleberry-Frank, the trial was pushed beyond the
STA's seventy-day window at the direct request of defense counsel,
who indicated her unavailability for the originally scheduled date.
158 F.3d at 613. Subsequently, on the eve of trial, the defendant
filed a motion to dismiss the indictment on STA grounds.
Id. The
district court denied the motion, and we affirmed the denial on
appeal, holding in relevant part:
Because the continuance was granted to aid
defense counsel . . . the period [continued at
the conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule
constitutes a 'clear break' with the past.").
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her request] is excludable. [. . .] To hold
otherwise would be to subvert the purpose of
the STA, and allow defense counsel to
"sandbag" the district court. [. . .]
Defense counsel cannot have it both ways.
Either she must agree that the continuance
granted for her benefit be excluded from STA
consideration, or she must object to the
continuance. To permit defense counsel to
have both the continuance and the time
included in the STA calculus is impermissible.
Id. at 615-16; see also United States v. Pringle,
751 F.2d 419, 434
(1st Cir. 1984) (affirming the district court's denial of
defendant's motion to dismiss on STA grounds, and holding that the
defendant cannot "lull[] the court and prosecution into a false
sense of security only to turn around later and use the [speedy
trial waiver]-induced leisurely pace of the case as grounds for
dismissal"); United States v. Pakala,
568 F.3d 47, 60 (1st Cir.
2009) ("[Defendant] would obtain an 'unfair advantage' by
benefitting from his continuances and then later claiming that he
was somehow prejudiced by the district court's actions.").
There is nothing in the record here to suggest that Huete
similarly seduced anyone. To be sure, Huete indicated a vague
future intent to seek a continuance; yet the court, as evidenced by
the conditional language of its ends-of-justice notation, fully
recognized the prospective nature of Huete's request. See July 22
Pretrial Minutes, at 1 ("[I]n the event more time for plea
negotiation is requested, maybe [sic] granted pursuant to 18 U.S.C.
§ 3161(h)(7)(A), that the Speedy Trial shall be tolled 'in the best
-12-
interest of justice'. . . ." (emphasis added)). The court was
neither lulled to sleep nor hoodwinked by Huete's actions --
indeed, in stark contrast to the critical facts in Scantleberry-
Frank, a continuance here was never granted (or even requested),
and the trial date was never actually changed. Huete's purported
"improper gamesmanship" simply had no dilatory consequence, and we
therefore find the sandbagging argument unpersuasive.
If Huete is guilty of anything during this time frame, it
is that he failed to object to the trial date prior to filing his
August 7 motion to dismiss. The record, however, discloses nothing
about when counsel discovered the STA issue. In this case, the
failure to object sooner "does not constitute working both sides of
the street," and is not fatal to the defendant's claim. See
Barnes, 159 F.3d at 15 (internal quotation marks omitted). Under
the circumstances presented here, the defendant should not be
charged with ensuring the court's compliance with the Act's
requirements. See id.; United States v. Bivens,
82 F.3d 419,
1996
WL 166747, at *2 (6th Cir. 1996) (unpublished table decision)
("Although the delay was certainly not intentional on the part of
the court or either of the parties, it is not the defendant's
burden to remind the court to comply with the Speedy Trial Act.");
United States v. Breen, 243 F.3d 591, 596 (2d Cir. 2001) ("Nor do
we suggest that [the defendant] 'waived' his speedy trial claims
since he had no obligation to take affirmative steps to [e]nsure
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that [he] would be tried in a timely manner." (internal quotation
marks omitted)). Thus, on this record, we conclude that the
sixteen days between July 22 and August 7, 2009, were not
excludable pursuant to the STA and in light of prior circuit
precedent.8
III. Conclusion
Additional claims of error need not be decided. For the
aforementioned reasons, we reverse the district court's order
denying Huete's motion to dismiss, and remand to determine whether
the indictment should be dismissed with or without prejudice,
taking into account the factors specified in 18 U.S.C. §
3162(a)(2).9
8
We note that other circuits are divided as to whether plea
negotiations are automatically excludable from the Speedy Trial Act
calculation as "other proceedings" pursuant to 18 U.S.C.
§ 3161(h)(1). Compare United States v. Leftenant, 341 F.3d 338,
344-45 (4th Cir. 2003) (holding that plea negotiations trigger
automatic exclusion pursuant to 18 U.S.C. § 3161(h)(1)); United
States v. Van Someren,
118 F.3d 1214, 1218-19 (8th Cir. 1997)
(same); United States v. Montoya,
827 F.2d 143, 150 (7th Cir. 1987)
(same); United States v. Bowers,
834 F.2d 607, 610 (6th Cir. 1987)
(same), with United States v. Alvarez-Perez,
629 F.3d 1053, 1058
(9th Cir. 2010) (holding that plea negotiations do not trigger
automatic exclusion pursuant to 18 U.S.C. § 3161(h)(1)); United
States v. Lucky,
569 F.3d 101, 107 (2d Cir. 2009) (same). We need
not and do not reach that issue here. To the extent the parties
entered plea negotiations between July 16 and July 22, the total
number of days excluded would be insufficient to avoid a violation
of the Speedy Trial Act.
9
Such factors include, but are not limited to, the following:
"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 this chapter and on the administration of
justice." 18 U.S.C. § 3162(a)(2).
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