In September 2015, a divided panel of the Second Circuit took the drastic step of ordering the reversal of defendant Raheem Bert’s conviction for firearms offenses and the dismissal of his indictment with prejudice due to an inadvertent violation of the Speedy Trial Act. The panel’s decision, written by Circuit Judge Rosemary S. Pooler and joined by Circuit Judge Peter W. Hall—over a dissent by Circuit Judge Dennis Jacobs—explained this result by referencing the need to vindicate the Speedy Trial Act’s “purpose of expeditiously bringing criminal cases to trial,” and found that “[b]arring reprosecution in this case will have a more positive and substantial impact upon the administration of justice—and most certainly on improved administration of the Speedy Trial Act—than would permitting the prosecution to proceed.”
While Bert involved nothing more than “administrative neglect”—the district court just forgot to exclude the time it spent considering Bert’s suppression motion from the speedy trial clock—the decision’s broad language could portend an increased scrutiny not only of the unusual cases like Bertwhere the parties and the district court neglect to exclude speedy trial time, but also of the more common cases where district courts affirmatively stop the speedy trial clock on questionable grounds.
By way of background, the federal Speedy Trial Act requires a criminal defendant’s trial to take place within 70 days of the later of his indictment or initial appearance, and entitles the defendant to dismissal if that deadline is not met. But the Act excludes from the 70-day clock those periods “of delay resulting from a continuance granted by any judge . . ., 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,” and if the court “sets forth, in the record of the case, either orally or in writing, its reasons for [that] finding.” In practice, district courts routinely grant applications by the government or defense counsel to exclude time from the speedy trial clock, often justifying such decisions by saying little more than that time is excluded in the interests of justice.
Prior to Bert, the Second Circuit reviewed such exclusions deferentially. For example, following the high-profile trial and conviction of the former treasurer of Doral Financial Corp., Mario S. Levis, for securities fraud and wire fraud, Levis challenged his conviction on the ground that his rights under the Speedy Trial Act had been violated. In particular, prior to his trial, in a May 2009 letter, Levis had requested an adjournment of his trial date, writing that he would agree to the exclusion of time under the Speedy Trial Act. The district court granted the adjournment, but wrote nothing about the Speedy Trial Act at the time. In March 2010, Levis moved to dismiss the indictment, arguing that the district court had not made the requisite ends-of-justice finding excluding time. In response, the government submitted a letter to the district court seeking to confirm that the district court had made the requisite findings back in May 2009. The district court endorsed the government’s letter and denied the motion.
A panel of the Second Circuit that included Judge Jacobs—who dissented in Bert—affirmed Levis’s conviction in a summary order, finding that the district court’s endorsement of the government’s post-hoc letter was a sufficient ends-of-justice finding to satisfy the Act. The Supreme Court denied Levis’s petition for certiorari on the speedy-trial issue.
In Bert, the district court similarly failed to exclude time—the 11-month period during which it was considering Bert’s suppression motion. But unlike in Levis, when Bert moved to dismiss the indictment with prejudice based on this violation of the Speedy Trial Act, the government conceded that the Act had been violated and simply requested that the necessary dismissal be without prejudice to Bert’s re-indictment. The district court acceded to the government’s request, dismissing Bert’s indictment without prejudice. The government re-indicted Bert that same day, and Bert was ultimately found guilty at trial and sentenced principally to 120 months’ imprisonment.
On appeal, Bert challenged the district court’s decision to dismiss his indictment without prejudice, arguing that the district court should have barred his re-indictment. The Second Circuit agreed. The majority acknowledged that Bert’s offenses were “serious,” that Bert “did not suffer any actual prejudice in his ability to mount a defense at trial” as a result of the speedy trial error, and that “the violation here was caused by a simple administrative oversight at one of the busiest and most productive district courts in the country.” Nevertheless, the Court found these factors outweighed by, among other things, the sheer “length of the delay,” the presumptive prejudice Bert suffered while incarcerated pending trial, and the need to vindicate the Speedy Trial Act’s “purpose of expeditiously bringing criminal cases to trial.”
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The key difference between Levis and Bert appears to be that in Levis, the district court endorsed the government’s after-the-fact letter asserting that the district court had, in fact, made the appropriate ends-of-justice finding many months earlier, whereas in Bert the district court acknowledged that it had failed to exclude time at the start of the un-excluded period. But the fact remains that both Levis and Bert involved administrative oversights, where the district courts did not enter orders excluding speedy trial time prior to lengthy continuances, and the comparison of the two cases highlights the extraordinary nature of Bert’s result.
Bert’s stated goal of improving the administration of the Speedy Trial Act, and of bringing criminal cases to trial expeditiously, will not be served if Bert’s application is limited to its facts—that is, to those cases where district courts inadvertently fail to exclude speedy trial time from the clock—because such cases are rare, and because rare instances of administrative oversight are difficult to deter. If the Court is serious about improving adherence to the Speedy Trial Act and about vindicating the Act’s stated purpose of bringing cases to trial quickly, then it will not be surprising to see Bertserve as the basis for a more searching scrutiny of ends-of-justice exclusions in future cases. Counsel opposing requests for exclusions—and seeking speedier trials—should obviously rely on Bert for support, while counsel seeking the exclusion of time from the speedy trial clock should take care that these requests rely on exclusions expressly contemplated by the Act.
From The Insider Blog: White Collar Defense & Securities Enforcement.