United States v. Michael Napadow ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1920
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL N APADOW ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-00328-1—Harry D. Leinenweber, Judge.
A RGUED D ECEMBER 4, 2009—D ECIDED F EBRUARY 23, 2010
Before P OSNER, R IPPLE and W OOD , Circuit Judges.
R IPPLE, Circuit Judge. On April 17, 2008, a federal grand
jury returned a six-count indictment charging Michael
Napadow with knowingly devising a scheme to defraud
and obtain money from home inspectors by selling fraud-
ulent insurance. The indictment contained two counts
of wire fraud, in violation of 18 U.S.C. § 1343 (Counts
One and Three), and four counts of mail fraud, in viola-
tion of 18 U.S.C. § 1341 (Counts Two, Four, Five and
2 No. 09-1920
Six). The district court denied his motion to dismiss
the indictment for lack of a speedy trial. Mr. Napadow
now seeks review of that decision. Because we con-
clude that the district court was correct, we affirm
the judgment.
I
BACKGROUND
Our decision rests on a close examination of the
district court’s consideration of Mr. Napadow’s motion
to dismiss the indictment. 1 We therefore set forth, in
some detail, the court’s treatment of the issue during the
course of the proceedings in that court.
Mr. Napadow first appeared before the district court on
May 6, 2008. He entered a plea of not guilty. During that
appearance, the district court asked the defense how
much time it would need to file pretrial motions. Defense
counsel requested that the deadline be set for May 27,
2008. The district court set that date as the deadline and
scheduled a status conference for June 10, 2008. The
district court then asked, “Any objection if I exclude time
1
During proceedings before the district court, Mr. Napadow
raised and preserved adequately the issue of whether his
right to a speedy trial, under the Speedy Trial Act, had been
violated. See Tr. at 8-9, Aug. 19, 2008; see also United States v.
Gearhart, 576 F.3d 459, 462 (7th Cir. 2009) (noting that a criminal
defendant must move to dismiss the indictment in order to
preserve a Speedy Trial Act challenge).
No. 09-1920 3
for pretrial motions?” Tr. at 3, May 6, 2008. Defense
counsel stated, “Your Honor, Mr. Napadow has asked me
to object and he has asked me to assert his Speedy Trial
rights.” Id. The district court then stated, “Objection
overruled. Time will be excluded for purposes of prepara-
tion and consideration of pretrial motions.” Id. That
same day, the district court entered a minute entry
that stated, “Status hearing set for 6/10/2008 at 9:00 a.m.
Enter excludable delay in the interest of justice to
begin 5/6/2008 and end 6/10/2008 pursuant to
18:3161(h)(8)(A)(B).” R.7.
Neither party filed a pretrial motion. On Tuesday,
June 10, 2008, the parties appeared for the status confer-
ence. The Government indicated that discovery had
been exchanged. Defense counsel then stated, “Mr.
Napadow advises me he does not anticipate he will
plead guilty in this case. He has asked me to request a
trial date, and also has asked me to object to the exclu-
sion of any time.” Tr. at 2, June 10, 2008. The district
court then asked if the parties were ready to begin trial
the following Monday. Id. Defense counsel stated, “Not
quite that soon,” but Mr. Napadow interjected, “I am
ready.” Id. at 3. The Government said that, in order to
coordinate out of town witnesses’ schedules, it would
need at least two months to prepare for trial. The district
court then proposed August 18, 2008. Defense counsel
informed the court that it had another trial scheduled
for that date. The district court then said, “Well, since
your client wants a trial, let’s leave it on the 18th. If
your other case goes, then we will have to try it after
you are finished.” Id. The district court also scheduled
4 No. 09-1920
a status conference for July 29, 2008. The court did not
verbally exclude time. Id. Nevertheless, later that same
day, the district court entered a minute entry reflecting
the scheduling of the trial date and conference. R.8. The
minute entry also stated, “ENter [sic] excludable delay
in the interest of justice to begin 6/10/2008 and end
8/18/2008 pursuant to 18:3161(h)(8)(A)(B).” Id.
At the July 29 conference, defense counsel indicated
that Mr. Napadow might plead guilty, and the Govern-
ment asked if the plea hearing could occur within the
next week. The following was said:
The Clerk: If I need to set the plea, just let me
know, we will go from there.
[The Government]: Okay.
[Defense Counsel]: Thank you, your Honor.
[The Government]: And may time be excluded
until that next date?
The Court: I think it is excluded until the trial date.
[The Government]: Okay.
The Court: All right.
[Defense Counsel]: Thank you.
[The Government]: Thank you, your Honor.
The Defendant: I have a question.
The Court: Talk to your lawyer.
The Defendant: What is this excluded stuff?
[Defense Counsel]: Time has already been ex-
cluded.
No. 09-1920 5
The Defendant: For what?
[Defense Counsel]: Until the trial date, August
18th.
The Defendant: For what? Why?
[Defense Counsel]: I don’t have the transcript in
front of me right now. I can’t answer that. I can get
the transcripts if you want and tell you why.
The Defendant: That was never brought up in the
other cases that—in the other two, in the other
two hearings.
[Defense counsel]: I am not sure we need to raise
that right now. I don’t have the transcripts here
but I can get them.
The Defendant: Do you know why you excluded
that time, your Honor?
The Court: Excluded time through the trial date?
The Defendant: Yes.
The Court: Probably because of continuity of
counsel. Also, nobody was available earlier than
that. I don’t have the record in front of me.
The Defendant: Can I object to that?
The Court: Time was excluded on June 10th to
enable the parties to file pretrial motions, there
apparently were none. This was probably the
first date that the lawyers were available.
The Defendant: I just want to—
[Defense Counsel]: I will talk to you.
6 No. 09-1920
The Defendant: Okay.
[Defense Counsel]: Thank you, your Honor.
[The Government]: Thank you.
(Proceedings concluded.)
Tr. at 3-5, July 29, 2008. Later that day, the district court
entered a minute entry reflecting that the status hearing
was held and stating, “Enter excludable delay in the
interest of justice to begin 7/29/2008 pursuant to
18:3161(h)(8)(A)(B).” R.9.
Plea negotiations broke down and the Government
requested a pretrial conference. The parties appeared on
August 6, 2008, and the Government sought a 30 day
continuance to allow it additional time to prepare. Tr. at 2,
Aug. 6, 2008. The district court stated that its calendar
was full and, after some discussion about scheduling,
the following was said:
The Court: Well, I don’t know what else to do,
otherwise you are going to go over until next year,
and I would assume that that is not okay with—
well, I don’t know what the defendant’s position is.
[Defense counsel]: Your Honor, if your Honor
would recall, since Mr. Napadow’s initial appear-
ance before your Honor he has insisted on a speedy
trial.
The Court: In fact, last time I think he raised the
question of a speedy trial.
[Defense counsel]: Yes.
The Court: Then I think we have to go ahead.
No. 09-1920 7
Id. at 4. The parties agreed that trial would begin on
August 19 instead of the 18. Id. Later that day, the
district court entered a minute entry reflecting that
the hearing had occurred. R.10. The minute entry said
nothing about excludable time.
On August 18, 2008, the Government filed a motion to
dismiss Count Six of the indictment. R.12. The following
day, on August 19, while discussing pretrial matters,
the district court asked if there were any objections to
the motion, heard that there were none from Mr.
Napadow and verbally granted the motion, dismissing
Count Six. See Tr. at 6-7, Aug. 19, 2008.2
Also on August 19, 2008, before the jury was brought
in for voir dire, the following was said in open court,
[Defense Counsel]: A moment ago Mr. Napadow
insisted that he would address your Honor and
I told him he shouldn’t do that, especially in
front of the jury, so I asked for a side bar.
The Defendant: I had asked him to file this motion
under the Speedy Trial Act because the way
I understand the Act, if I don’t motion for it, I lose
my rights, and I don’t want to lose any rights.
The Court: I think we have gone over this. Let me
just see what the—let me see this here for a sec-
ond. My recollection is that we excluded time for a
2
The district court also granted the motion and dismissed
Count Six of the indictment in the post-sentencing Judgment.
See R.42.
8 No. 09-1920
variety of purposes during the course of the case.
The motion is denied.
Id. at 8-9.3 The trial then began and lasted for two days.
On August 20, 2008, the jury found Mr. Napadow guilty
on all five counts. On March 5, 2009, the district court
sentenced Mr. Napadow to 60 months’ imprisonment. See
Tr. at 29, Mar. 5, 2009. Mr. Napadow now appeals the
denial of his motion to dismiss for the alleged Speedy
Trial Act violation.
II
DISCUSSION
We review de novo a denial of a motion to dismiss
under the Speedy Trial Act when the calculation of time
is at issue. See United States v. Rollins, 544 F.3d 820, 828-29
(7th Cir. 2008).
The Speedy Trial Act mandates that criminal trials
shall be commenced within 70 days of the issuance of an
indictment or a defendant’s first appearance before a
judicial officer, whichever occurs later. See 18 U.S.C.
§ 3161(c)(1). If the defendant is not brought to trial within
70 days, “the information or indictment shall be dis-
missed on motion of the defendant.” 18 U.S.C. § 3162(a)(2).
Dismissal may be with or without prejudice. Id.; see
also United States v. Taylor, 487 U.S. 326, 336-37, 342-43
(1988).
3
Apparently, the motion never was made part of the record.
See Appellee’s Br. 7 n.3.
No. 09-1920 9
The Act is designed to preserve the defendant’s right to
a speedy trial, as guaranteed by Amendment VI of the
Constitution, and “to serve the public interest by, among
other things, reducing defendants’ opportunity to
commit crimes while on pretrial release and preventing
extended pretrial delay from impairing the deterrent
effect of punishment.” Zedner v. United States, 547 U.S.
489, 501 (2006).
To provide the necessary flexibility to accommodate
pretrial proceedings that result in justifiable delay, the
Act excludes from the 70-day clock certain periods of time.
See 18 U.S.C. § 3161(h)(1)-(8).4 Two particular exclusions
are relevant to this case: the pretrial motion exclusion,
see id. § 3161(h)(1)(D),5 and the ends-of-justice exclusion,
4
The Speedy Trial Act was amended effective October 13, 2008.
See Pub. L. No. 110-406, § 13, 122 Stat. 4291 (2008). The effect of
that amendment was, in relevant part, recodification of sub-
section (F) of 18 U.S.C. § 3161(h)(1) as subsection (D) and
recodification of subsection (8) of § 3161(h) as subsection (7).
Except where noted, all citations in this decision refer to
the version of the Act as it is codified in the 2009 Supplement
to the United States Code.
5
Time shall be excluded, “resulting from other proceedings
concerning the defendant, including but not limited to . . . (D)
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.” 18 U.S.C. § 3161(h)(1)(D).
10 No. 09-1920
see id. § 3161(h)(7)(A).6
6
According to § 3161(h)(7):
(A) Any period of delay resulting from a continuance
granted by any judge on his own motion or at the
request of the defendant or his counsel or at the request
of the attorney for the Government, 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. No such period of delay resulting from a
continuance granted by the court in accordance with
this paragraph shall be excludable under this subsec-
tion unless the court sets forth, in the record of the case,
either orally or in writing, 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.
(B) The factors, among others, which a judge shall
consider in determining whether to grant a continuance
under subparagraph (A) of this paragraph in any case
are as follows:
(i) Whether the failure to grant such a continu-
ance in the proceeding would be likely to make
a continuation of such proceeding impossible,
or result in a miscarriage of justice.
(ii) Whether the case is so unusual or so com-
plex, due to the number of defendants, the
nature of the prosecution, or the existence of
novel questions of fact or law, that it is unrea-
sonable to expect adequate preparation for pre-
(continued...)
No. 09-1920 11
The parties agree that the speedy trial clock began to
run on May 6, 2008, when Mr. Napadow first appeared
before the district court. See 18 U.S.C. § 3161(c)(1). Between
6
(...continued)
trial proceedings or for the trial itself with-
in the time limits established by this section.
(iii) Whether, in a case in which arrest precedes
indictment, delay in the filing of the indictment
is caused because the arrest occurs at a time
such that it is unreasonable to expect return
and filing of the indictment within the period
specified in section 3161(b), or because the
facts upon which the grand jury must base
its determination are unusual or complex.
(iv) Whether the failure to grant such a contin-
uance in a case which, taken as a whole, is not
so unusual or so complex as to fall within
clause (ii), would deny the defendant reason-
able time to obtain counsel, would unreason-
ably deny the defendant or the Government
continuity of counsel, or would deny counsel
for the defendant or the attorney for the Gov-
ernment the reasonable time necessary for
effective preparation, taking into account
the exercise of due diligence.
(C) No continuance under subparagraph (A) of this
paragraph shall be granted because of general conges-
tion of the court’s calendar, or lack of diligent prepara-
tion or failure to obtain available witnesses on the part
of the attorney for the Government.
18 U.S.C. § 3161(h)(7).
12 No. 09-1920
May 6 and August 19, the first day of trial when
Mr. Napadow moved to dismiss the indictment, 105 days
elapsed. Thus, the central inquiry is how many days
were excludable from those 105 days.
A.
The pretrial motion exclusion applies whenever a
pretrial motion is filed and, with certain exceptions not
applicable here, excludes the entire period of time from
filing to the disposition of such motion. See Henderson v.
United States, 476 U.S. 321, 330-31 (1986); United States v.
Pansier, 576 F.3d 726, 731-32 (7th Cir. 2009). Additionally,
we have held that the time needed to prepare pretrial
motions is excludable. See United States v. Montoya, 827
F.2d 143, 153 (7th Cir. 1987) (“[T]ime consumed in the
preparation of a pretrial motion must be excluded—
provided that the judge has expressly granted a party
time for that purpose. Even when motions are not
actually filed in the allotted time, the amount of time
granted by the district judge for their preparation and
submission is excludable.” (internal quotation marks
and citations omitted, emphasis in original)).7
The parties also agree that 21 days were excludable
between May 6 and May 27 because, at the request of the
defense, the district court excluded that period to afford
7
We are aware that the Supreme Court of the United States
has granted certiorari in United States v. Bloate, 534 F.3d 893 (8th
Cir. 2008), cert. granted, 129 S. Ct. 1984 (2009), and will con-
sider this rule.
No. 09-1920 13
the parties adequate time to prepare pretrial motions.
See Montoya, 827 F.2d at 153 (describing the pretrial
motion preparation exclusion). However, Mr. Napadow
contends that, because no motions were actually filed
on May 27, the 14 days between that date and the next
conference on June 10 were improperly excluded.
The Government contends that the 14 days were
excludable because the district court granted that time
for the preparation, filing and consideration of pretrial
motions.
We conclude that the entire period from May 6 to
June 10, totaling 35 days, is excludable under the pretrial
motion exclusion. See 18 U.S.C. § 3161(h)(1)(D). As we
have noted, Mr. Napadow readily concedes that the
period of time leading up to the May 27 filing deadline
was excludable because of his representation to the
district court that he intended to file pretrial motions
during that period. See Montoya, 827 F.2d at 153 (“Even
when motions are not actually filed in the allotted time,
the amount of time granted by the district judge for
their preparation and submission is excludable.”
(emphasis in original)). A fair reading of the transcript
of the May 6 hearing makes it clear that the district
court set the next status conference for June 10 in order
to afford adequate opportunity to consider the position
of the parties on the motions that it expected to receive
in light of the defense’s representation. This was a prac-
tical, common-sense way of proceeding. Certainly, if
a motion had been filed, the court would have been
justified in taking that time to consider the motion and
prepare for the June 10 status conference. See Henderson,
476 U.S. at 330-31. “The provisions of the Act are
14 No. 09-1920
designed to exclude all time that is consumed in placing
the trial court in a position to dispose of a motion.” Id.
at 331. Cf. United States v. Baskin-Bey, 45 F.3d 200, 204 (7th
Cir. 1995) (“[I]t is unfair of [a defendant] to ask that the
trial date be delayed to suit her, implicitly agree to the
government’s request that time be excluded because of
her request, and then try to sandbag the government
by insisting that the time be counted against the speedy
trial clock.”); United States v. Garrett, 45 F.3d 1135, 1138
(7th Cir. 1995) (“If [the defendants] believed this period
to be too long, or if the defendants did not intend to file
anything during this time, it was incumbent upon
them to point this out to the district court.”).8
In sum, we believe that Mr. Napadow’s general asser-
tion of his rights under the Act must be assessed in light
of his specific representations to the court with respect
to his plans for pretrial motions. His assertion of speedy
trial rights is qualified by the application of the
pretrial motion exclusion.9
8
See also United States v. Oberoi, 547 F.3d 436, 449 (2d Cir. 2008)
(citing with approval the view that whether motions are
actually filed during the pretrial motion preparation exclusion
is unimportant); United States v. Mejia, 82 F.3d 1032, 1035-36
(11th Cir. 1996) (same).
9
The minute entry of May 6 purported to exempt all the time
until June 10 per the ends-of-justice exception. However, the
district court never articulated its ends-of-justice findings
with respect to the 14 days between May 27 and June 10. As
we hold later in this opinion, such a minute entry, without
(continued...)
No. 09-1920 15
B.
The ends-of-justice provision excludes “[a]ny period of
delay resulting from a continuance . . . 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.” 18 U.S.C. § 3161(h)(7)(A); see also
Zedner, 547 U.S. at 506-07. “Among the factors that a dis-
trict court must consider in deciding whether to grant
an ends-of-justice continuance are a defendant’s need for
‘reasonable time to obtain counsel,’ ‘continuity of counsel,’
and ‘effective preparation’ of counsel.” Zedner, 547
U.S. at 500 (citing § 3161(h)(8)(B)(iv), now codified as
§ 3161(h)(7)(B)(iv)). No time shall be excluded pursuant
to the ends-of-justice provision “unless the court sets
forth, in the record of the case, either orally or in writing,
its reasons for finding” that the ends-of-justice provi-
sion applies. See 18 U.S.C. § (h)(7)(A). “A straightforward
reading of these provisions leads to the conclusion that
if a judge fails to make the requisite findings regarding
the need for an ends-of-justice continuance, the delay
resulting from the continuance must be counted.” Zedner,
547 U.S. at 508. However, the district court need not
explain its findings contemporaneously with its decision
to exclude time. “[A]t the very least . . . [the] findings must
be put on the record by the time the district court rules
9
(...continued)
more, is an insufficient statement of reasons to support an
application of the ends-of-justice exception.
16 No. 09-1920
on . . . [the] motion to dismiss.” See Zedner, 547 U.S. at 506-
07; see also United States v. Rollins, 544 F.3d 820, 830 (7th Cir.
2008); United States v. Larson, 417 F.3d 741, 746 (7th Cir.
2005); United States v. Turner, 203 F.3d 1010, 1017 (7th Cir.
2000). When the district court makes its findings, the
Speedy Trial Act does not require the court “to cite . . .
sections [of the Act] or to track the statutory language in a
lengthy legal opinion,” but rather to make findings
“sufficiently specific to justify a continuance[] and comport
with the purposes of the Act.” United States v. Jean, 25 F.3d
588, 594 (7th Cir. 1994) (internal quotation marks and
citations omitted). “The requirement that the district
court make clear on the record its reasons for granting an
ends-of-justice continuance serves two core purposes. It
both ensures the district court considers the relevant
factors and provides this court with an adequate record to
review.” United States v. Toombs, 574 F.3d 1262, 1269 (10th
Cir. 2009) (internal citations omitted).
We conclude that the 69 days, from June 10 to August 18,
were excludable pursuant to the Act’s ends-of-justice
exclusion. The district court excluded this period of time
in the minute entry issued on June 10. Later, the
district court explained that it had excluded that time
“[p]robably because of continuity of counsel” and “nobody
was available earlier than that” and, finally, “[t]his
was probably the first date that the lawyers were avail-
able.” Tr. at 4-5, July 29, 2008. Mr. Napadow contends
that the district court’s explanation was too speculative to
No. 09-1920 17
satisfy the Act’s requirement of on-the-record findings.1 0
We cannot accept this contention. Counsel told the
district court that more time was needed to prepare for
trial, and, on that representation, the court granted the
continuance. This sequence of events, followed by the
court’s later explanation, sufficiently identified the ap-
plicable continuity of counsel factor under the ends-of-
justice exclusion. See Jean, 25 F.3d at 594. When “ ‘facts have
been presented to the court and the court has acted on
them, it is not necessary to articulate those same facts in
a continuance order.’ ” Id. (quoting United States v.
Wiehoff, 748 F.2d 1158, 1160 (7th Cir. 1984)). This sequence
of events makes it clear that the district court accepted
counsel’s representation that more time was needed and,
consequently, granted the continuance. The district
court’s later confirmation of that reason comports with the
record. Notably, Mr. Napadow’s own counsel’s unavail-
ability was, in part, a cause for the trial delay. Cf.
Baskin-Bey, 45 F.3d at 203-04 (finding a district court’s
reasons for the exclusion to be clear from the record).
While, of course, the record would have been more clear
if the district court had identified precisely why the
ends of justice served by granting the exclusion out-
weighed the best interest of the public and Mr. Napadow
in a speedy trial, a comparison of the district court’s
10
Mr. Napadow does not contend that the district court erred
by articulating its findings several weeks after it had first
purported to exclude this time on June 10. Nor could he. See
Zedner v. United States, 547 U.S. 489, 506-07 (2006); United
States v. Turner, 203 F.3d 1010, 1017 (7th Cir. 2000).
18 No. 09-1920
actual statements with the circumstances of the pretrial
proceedings provide an adequate basis to justify the
69 day exclusion.11
We do note, however, that the minute entries, by them-
selves, are clearly unsatisfactory explanations of the
district court’s ends-of-justice determinations. As we
have just observed, we need not rely on them for resolu-
tion of this appeal. Nevertheless, we note that such pro
forma statements, standing alone, would not comply
adequately with the statute.
Finally, the one day between August 18 and 19 was
excludable because the Government filed a motion to
dismiss Count 6 of the indictment on August 18, and the
motion was decided on August 19. Pursuant to the ex-
clusion afforded by § 3161(h)(1)(D), that day was
excludable. See Henderson, 476 U.S. at 330-31.1 2
11
Our sister circuits have followed similar approaches. See, e.g.,
United States v. Pakala, 568 F.3d 47, 60 (1st Cir. 2009); United
States v. Gamboa, 439 F.3d 796, 803 (8th Cir. 2006); United States
v. Hope, 714 F.2d 1084, 1087 (11th Cir. 1983). But cf. United States
v. Toombs, 574 F.3d 1262, 1268-69 (10th Cir. 2009) (determining
that the district court gave an inadequate ends-of-justice
explanation).
12
We note that, even if the Supreme Court ultimately decides
that the circuit’s current rule on excluding time for the prepara-
tion of pretrial motions is incorrect, the exclusion of the 69 days
from June 10 to August 18, pursuant to the ends-of-justice
exclusion, with the additional one day from August 18 to 19
tacked on, pursuant to the pretrial motion exclusion, would
ensure compliance with the Act in this case.
No. 09-1920 19
Conclusion
The district court correctly determined that there had
been no violation of the Speedy Trial Act. The judgment
of the district court is therefore affirmed.
A FFIRMED
2-23-10