A MANUAL OF JURY TRIAL PROCEDURES

A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter One: Pre-Trial Considerations

1.3     Speedy Trial Act Issues—18 USC 3161 et seq. (Criminal)
           A. Tolling of Speedy Trial Act
           B. Voir Dire

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A. Speedy Trial Act Issues—18 USC 3161 et seq. (Criminal): Tolling of Speedy Trial Act

The Speedy Trial Act provides time limits within which criminal proceedings, including trial, must take place, as well as exclusions from those time limits.

1. The thirty-day rule for charging.

Under 18 USC 3161(b) any information or indictment charging an individual with an offense must be filed within thirty days from arrest or service of summons. United States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir. 2000) (summarizing the requirements of the Speedy Trial Act as it relates to the thirty-day rule and holding that the granting of a continuance requested by a defendant for the purpose of plea negotiations does not toll the Act in the absence of specific findings by the court supporting an "ends of justice" exclusion). The issuance of a violation notice does not trigger the thirty-day rule of 3161(b). United States v. Boyd, 214 F.3d 1052, 1056 (9th Cir.), cert. denied, 531 U.S. 910 (2000).

2. The seventy-day rule for trial

18 USC 3161(c)(1) provides:

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence 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. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.

3. Excludable time

18 USC 3161(h) provides several grounds for excluding time from the seventy-day period within which trial must commence. The most common grounds for delay and exclusion are:

a. Motions and other proceedings concerning defendant. § 3161(h)(1). Typically, this exclusion would encompass mental competency proceedings or pendency of a pretrial motion from filing of the motion through disposition of the motion, not to exceed thirty days for having the motion under advisement. 3161(h)(1)(J). United States v. Aviles, 170 F.3d 863, 869 (9th Cir.) (illustrating the detailed accounting of time that may be required to compute excludable time attributable to pending motions), cert. denied, 528 U.S. 848 (1999), amended by 216 F.3d 881 (9th Cir. 2000). To toll the Speedy Trial Act, a continuance of a pending discovery motion must be to a date certain or to a happening of a date certain and the parties must have a real dispute or the possibility of a real dispute. Unites States v. Sutter, 340 F.3d 1022, 1028, 1031-32 (9th Cir.), opinion amended on denial of reh'g, 348 F.3d 789 (9th Cir. 2003), cert denied, 124 S. Ct. 1687 (2004). An interlocutory appeal tolls the Speedy Trial Act, but does not restart the clock. United States v. Pitner, 307 F.3d 1178, 1182 (9th Cir. 2002).

b. Deferred prosecution pursuant to a written agreement. 3161(h)(2).

c. Absence or unavailability of the defendant or an essential witness. 3161(h)(3)(A).

d. Joinder of defendant with an unsevered co-defendant as to whom the Speedy Trial Act has not run. 3161(h)(7). There may exist circumstances, however, where delay attributable to joinder of a co-defendant as to whom the Speedy Trial Act has not run is deemed unreasonable. United States v. Messer, 197 F.3d 330, 338-41 (9th Cir. 1999) (prejudice shown by subsequent unavailability of a witness due to delay from joinder).

e. Ends of justice. 3161(h)(8)(A). Upon motion of the judge or a party for continuance, any period of delay is excludable from the Speedy Trial Act provided the continuance is based upon findings "that the ends of justice served by [the action taken] outweigh the best interests of the public and the defendant in a speedy trial." Importantly, the court must set forth, on the record, the reasons for the finding(s), and the continuance must be specifically limited in time. United States v. Ramirez- Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000) (quoting United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997) in turn quoting United States v. Jordan, 915 F.2d 563, 565-566 (9th Cir. 1990)). Section 3161(h)(8)(B) lists four factors the judge shall consider, among others, in granting a continuance in the ends of justice:

whether failure to grant a continuance would result in a miscarriage of justice;
whether the case is so unusual or complex that it is unreasonable to expect adequate preparation within the time limits of the Speedy Trial Act;
whether certain circumstances concerning the indictment justify the continuance;
whether failure to grant a continuance would otherwise "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."

Where the judge grants a continuance based upon a finding of case complexity, specific findings must be made. United States v. Clymer, 25 F.3d 824, 828-29 (9th Cir. 1994) (criticizing the trial court for an open-ended declaration of complexity as well as for a retroactive invocation of the "ends of justice" basis for delay).

A bare stipulation by the parties to waive time under the Speedy Trial Act is an inadequate basis for a continuance as "the right to a speedy trial belongs not only to the defendant, but to society as well." United States v. Ramirez-Cortez, 213 F.3d 1149, 1156 (9th Cir. 2000) (quoting from United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997)).

Upon remand following appeal where dismissal is ordered for violation of the Speedy Trial Act, the trial court is to exercise its discretion in determining whether the dismissal is to be with or without prejudice, considering the seriousness of the offense, the circumstances leading to the dismissal, and the impact reprosecution would have on the Speedy Trial Act and the administration of justice. United States v. Pollock, 726 F.2d 1456, 1463 (9th Cir. 1984).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B. Speedy Trial Act Issues—18 USC 3161 et seq. (Criminal):

Voir Dire

The Ninth Circuit has yet to decide whether and under what circumstances a court may begin voir dire in order to stay the Act's time limits. Some circuits have held that long delays between the jury selection and the swearing in can violate the Speedy Trial Act, even though the voir dire was begun within the time limits set by the act. United States v. Crane, 776 F.2d 600, 603 (6th Cir. 1985); United States v. Gonzalez, 671 F.2d 441, 444 (11th Cir.), cert. denied, 456 U.S. 994 (1982).