---------------------------------------------------------------
AN E-BULLETIN
LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
lii.law.cornell.edu
---------------------------------------------------------------
The following two decisions have just arrived via the LII's
direct Project HERMES feed from the Supreme Court:
1. Anza v. Ideal Steel Supply Corp.:
http://www.law.cornell.edu/supct/html/04-433.ZS.html
2. Zedner v. United States:
http://www.law.cornell.edu/supct/html/05-5992.ZS.html

================================================== =============
ZEDNER v. UNITED STATES (No. 05-5992)
Web-accessible at:
http://www.law.cornell.edu/supct/html/05-5992.ZS.html

Argued: April 18, 2006 -- Decided: June 5, 2006
Opinion author: Alito
================================================== =============

The Speedy Trial Act of 1974 (Act) generally requires a
federal criminal trial to begin within 70 days after a
defendant is charged or makes an initial appearance. 18
U. S. C. sec. 3161(c)(1). Recognizing that criminal cases
vary widely and that there are valid reasons for greater
delay in particular cases, the Act includes a long and
detailed list of periods of delay that are excluded in
computing the time within which trial must start. Section
3161(h)(8) permits a district court to grant a continuance
and exclude the resulting delay if it makes on-the-record
findings that the ends of justice served by granting the
continuance outweigh the public's and defendant's interests
in a speedy trial. To promote compliance without needlessly
subverting important criminal prosecutions, the Act provides
that, if the trial does not begin on time and the defendant
moves, before the trial's start or entry of a guilty plea,
to dismiss, the district court must dismiss the charges,
though it may choose whether to do so with or without prejudice.

In April 1996, petitioner was indicted on charges arising
from his attempt to open accounts using counterfeit United
States bonds. The District Court granted two 'ends-of-justice'
continuances, see sec. 3161(h)(8). When, at a November
8 status conference, petitioner requested another delay
to January 1997, the court suggested that petitioner waive
the application of the Act 'for all time,' and produced
a preprinted waiver form for petitioner to sign. At a January
31, 1997, status conference, the court granted petitioner
another continuance so that he could attempt to authenticate
the bonds, but made no mention of the Act and no findings
to support excluding the 91 days between January 31 and
petitioner's next court appearance on May 2 (1997 continuance).
Four years later, petitioner filed a motion to dismiss
the indictment for failure to comply with the Act, which
the District Court denied based on the waiver 'for all
time.' In a 2003 trial, petitioner was convicted. The Second
Circuit affirmed. Acknowledging that a defendant's waiver
of rights under the Act may be ineffective because of the
public interest served by compliance with the Act, the
court found an exception for situations when the defendant
causes or contributes to the delay. It also suggested that
the District Court could have properly excluded the 91-day
period based on the ends of justice, given the case's complexity
and the defense's request for additional time to prepare.

Held:

1. Because a defendant may not prospectively waive the
application of the Act, petitioner's waiver 'for all time'
was ineffective. Pp. 9-12.

(a) The Act comprehensively regulates the time within which
a trial must begin. Section 3161(h), which details numerous
categories of delay that are not counted in applying the
Act's deadlines, conspicuously has no provision excluding
periods of delay during which a defendant waives the Act's
application. It is apparent from the Act's terms that this
was a considered omission. Instead of allowing defendants
to opt out, the Act demands that continuances fit within
one of sec. 3161(h)'s specific exclusions. In deciding
whether to grant an ends-of-justice continuance, a court
must consider a defendant's need for 'reasonable time to
obtain counsel,' 'continuity of counsel,' and 'effective
preparation' of counsel. sec. 3161(h)(8)(B)(iv). If a defendant
could simply waive the Act's application in order to secure
more time, no defendant would ever need to put such considerations
before the court under the rubric of an ends-of-justice
exclusion. The Act's purposes also cut against exclusion
on the grounds of mere consent or waiver. Were the Act
solely designed to protect a defendant's right to a speedy
trial, such an application might make sense, but the Act
was also designed with the public interest firmly in mind.
This interpretation is entirely in accord with the Act's
legislative history. Pp. 9-11.

(b) This Court rejects the District Court's reliance on
sec. 3162(a)(2), which provides that a defendant whose
trial does not begin on time is deemed to have waived the
right to move for dismissal if that motion is not filed
prior to trial or entry of a guilty plea. That section
makes no mention of prospective waivers, and there is no
reason to think that Congress wanted to treat prospective
and retrospective waivers similarly. Allowing prospective
waivers would seriously undermine the Act because, in many
cases, the prosecution, defense, and court would all like
to opt out, to the detriment of the public interest. Section
3162(a)(2)'s retrospective waiver does not pose a comparable
danger. Because the prosecution and court cannot know until
the trial starts or the guilty plea is entered whether
the defendant will forgo moving to dismiss, they retain
a strong incentive to make sure the trial begins on time.
Pp. 11-12.

2. Petitioner is not estopped from challenging the excludability
under the Act of the 1997 continuance. Factors that 'typically
inform the decision whether to apply the [estoppel] doctrine
in a particular case' include (1) whether 'a party's later
position [is] clearly inconsistent with its earlier position';
(2) 'whether the party has succeeded in persuading a court
to accept that earlier position'; and (3) 'whether the
party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped.' New Hampshire v.
Maine, 532 U. S. 742 . None of the three possible 'positions'
taken by petitioner gives rise to an estoppel. First, recognizing
an estoppel based on petitioner's promise not to move for
dismissal under sec. 3162(a)(2) would entirely swallow
the Act's no-waiver policy. Second, petitioner's (mistaken)
agreement that waivers are enforceable does not provide
a ground for estoppel because petitioner did not 'succee[d]
in persuading' the District Court to accept the validity
of prospective waivers. On the contrary, the District Court
requested the waiver and produced the form for petitioner
to sign. Even if the other factors favor estoppel, they
do not predominate. Finally, petitioner's representation
at the January 31 status conference that a continuance
was needed to gather evidence of the bonds' authenticity
does not support estoppel because that position was not
'clearly inconsistent' with the position that he now takes
in seeking dismissal, i.e., that delay from that continuance
was not excluded under the Act. Nothing in the discussion
at the conference suggests that the question presented
by the continuance request was viewed as anything other
than a case-management question laying entirely within
the District Court's discretion. Pp. 12-15.

3. When a district court makes no findings on the record
to support a sec. 3161(h)(8) continuance, harmless-error
review is not appropriate. The Government argues that an
express finding need not be entered contemporaneously and
could be supplied on remand. But the Act requires express
findings, see sec. 3161(h)(8)(A), and at the very least
implies that those findings must be put on the record by
the time the district court rules on the motion to dismiss.
Because the District Court made no such express findings,
the 1997 continuance is not excluded from the speedy trial
clock. This error is not subject to harmless-error review.
Harmless-error review under Federal Rule of Criminal Procedure
52(a) presumptively applies to 'all errors where a proper
objection is made,' Neder v. United States, 527 U. S. 1
, but strong support for an implied repeal of Rule 52(a)
in this context is provided by the Act's unequivocal provisions,
which specify that a trial 'shall commence' within 70 days,
sec. 3161(c)(1) (emphasis added), and that '[n]o period
of delay' from an ends-of-justice continuance 'shall be
excludable' from the time period unless the court sets
forth its reasoning, sec. 3161(h)(8)(A) (emphasis added).
Applying harmless-error review would also tend to undermine
the detailed requirements of the provisions regulating
ends-of-justice continuances. Pp. 15-18.

4. Because the 91-day continuance, which was not excluded
from the speedy trial clock, exceeded the maximum 70-day
delay, the Act was violated, and there is no need to address
whether other periods of delay were not excludable. The
District Court may determine in the first instance whether
the dismissal in this case should be with or without prejudice.
Pp. 18-19.

401 F. 3d 36, reversed and remanded.

Alito, J., delivered the opinion of the Court, in which
Roberts, C. J., and Stevens, Kennedy, Souter, Thomas, Ginsburg,
and Breyer, JJ., joined, and in which Scalia, J., joined
as to all but Part III-A-2. Scalia, J., filed an opinion
concurring in part and concurring in the judgment.

_______________________________________________
Liibulletin mailing list
Liibulletin@lawknowledge.org.ruckus.law.cornell.edu
http://ruckus.law.cornell.edu/mailman/listinfo/liibulletin

You are currently subscribed as bernie@lawknowledge.org.fantasyfarm.com
To unsubscribe send a blank email to liibulletin-leave@lawknowledge.org.ruckus.law.cornell.edu