District Court’s sua sponte continuance did not validly exclude time under STA

Following his conviction for wire fraud and aggravated identity theft, Reese appealed his conviction, in part based on a claim that his trial took place beyond the 70-day Speedy Trial Act time limit.  The Circuit here agreed and vacated the -conviction.  United States v. Reese, No. 17-2484 (March 5, 2019).

Prior to trial in Reese’s case, after a period of 50 non-excludable days had elapsed, the district court held a pretrial conference.  At this November 10, 2016, hearing the district court opened by stating that, in order accommodate the court’s calendar, trial was to be moved to February 22nd.  Reese’s counsel responded “February 22nd will work for me. I'm just really bad in December and January myself. February opens up.” There was no further discussion of postponing trial or the need to exclude time under the Speedy Trial Act.  A subsequent order stated that Reese's trial was rescheduled for February 22, “per the final pretrial conference held November 10, 2016,” without any further explanation for the basis of the rescheduling. It did not mention the exclusion of time under the Speedy Trial Act or use any language that would suggest a finding by the Court that an exclusion was proper.

This sua sponte continuance carried the date of trial beyond the 70-day limit, and just before trial Reese filed a motion to dismiss the indictment.  The district court denied the motion and Reese appealed. 

Looking at the “ends of justice” exclusion provision of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), the Court noted (reiterated really) that an exclusion of time for “the ends of justice” is not automatic, but must set forth in the record 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.” 18 U.S.C. § 3161(h)(7)(A).

The Court then rejected the Government’s argument that the continuance was entered “in consultation with” Reese's counsel during the November 10 pre-trial conference based on the record which made clear that the District court began the conference by announcing the continuance.  Next, the Court rejected the Government’s theory that the defense acquiesced, finding that the Supreme Court has squarely rejected the prospective exclusion of time “on the grounds of mere consent or waiver.” (citing Zedner v. United States).  Finally, the Court rejected an argument that Reese needed to establish prejudice, which is required only under the Sixth Amendment speedy trial claims.