NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 7, 2011
Decided July 28, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐2895 Appeal from the United States District
Court for the Northern District of
UNITED STATES OF AMERICA, Illinois, Eastern Division
Plaintiff‐Appellee,
No. 08 CR 198
v.
Wayne R. Andersen, Judge.
CINDY C. RAGO,
Defendant‐Appellant.
O R D E R
Cindy Rago was charged with two counts of making false statements on a tax return.
Before her trial, Rago moved to dismiss the indictment with prejudice, claiming that she
was deprived of her rights under the Speedy Trial Act,
18 U.S.C. § 3161. The court denied
the motion, and Rago now appeals. Because there was no violation of the Speedy Trial Act,
we affirm.
I.
No. 10‐2895 Page 2
In tax years 1999 and 2000, Cindy Rago submitted fraudulent tax returns for refunds
totaling $117,110. She was eventually charged with two counts of making false statements
on a tax return. Her case went to a jury, and she was found guilty of both counts.
Before trial, Rago moved to dismiss the indictment with prejudice, arguing that four
periods of time between her arraignment and trial totaling 136 days had been improperly
excluded in violation of the Speedy Trial Act. The district court denied the motion—and
this constitutes the only issue before us on appeal.
The Speedy Trial Act requires that a criminal defendant’s trial begin within 70 days
of the defendant’s initial appearance or indictment; however, certain periods of time can be
excluded from the counting.
18 U.S.C. § 3161(c)(1), (h); United States v. Hills,
618 F.3d 619,
625‐26 (7th Cir. 2010). In particular, a court can grant a continuance and exclude time if it
finds “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). Rago
contests four periods of time between her arraignment and trial that the district court ruled
were excluded under this ends‐of‐justice provision.
First, Rago claims that the district court erred by excluding five days from June 14,
2008 to June 18, 2008. At Rago’s arraignment on May 22, 2008, the court set the next status
hearing for June 19, and the government requested to have the intervening time excluded;
the reason given by the government was for the pendency of pre‐trial motions. Rago’s
counsel had no objection to the exclusion, and the court granted it. Because a pretrial
motion was resolved on June 13, Rago argues that the remaining days before the June 19
hearing shouldn’t have been excluded.
A second contested time period is a 63‐day period from October 10, 2008 to
December 11, 2008. This exclusion was made by the court on October 9, 2008, at a hearing
with both Rago and her counsel present. On that occasion, the parties told the district court
that more time was needed for plea negotiations. The court then reset the status hearing for
approximately two months in order to accommodate the parties. At the hearing, Rago’s
counsel agreed to this continuance on the record.
Rago’s final two challenges involve two 34‐day periods from August 1, 2008 to
September 3, 2008, and from January 23, 2009 to February 25, 2009. Though it is unclear
from the record, apparently both of these continuances were requested by the parties over
the telephone without them making a formal appearance or motion before the court. In
both instances, the court issued a minute entry on its docket sheet, stating that the time was
No. 10‐2895 Page 3
being excluded under the Speedy Trial Act; and in both instances, neither Rago nor her
counsel objected to the exclusion when it was first announced. Later, at the court’s hearing
on the motion to dismiss, defense counsel conceded that although he couldn’t remember
specifically what had happened at the time of the continuance requests, it was probable that
he had indicated to the prosecutor that he needed more time. Defense counsel also
admitted that the additional time given by the continuances would have accommodated his
ability to prepare Rago’s case.
Following the filing of Rago’s motion to dismiss the indictment, the district court
conducted a hearing on the motion’s merits on December 10, 2009. At the hearing, and then
in a written order, the court explained its factual findings that justified excluding all four
time periods under the ends‐of‐justice provision. Rago appeals this ruling.
II.
“In reviewing the district court’s Speedy Trial Act ruling, we examine its legal
conclusions de novo and its factual findings for clear error.” United States v. Adams,
625 F.3d
371, 377 (7th Cir. 2010). As we mentioned above, a court can grant a continuance and
exclude time under the Act if it finds “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). “Absent legal error, our review of the excludability of such
continuances is deferential.” Adams,
625 F.3d at 377.
Based on the record, we conclude that the reasons articulated by the district court
are adequate to support its ruling that the four continuances served the ends of justice. For
the first exclusion, the district court stated that the time was necessary for the defense
counsel to examine newly produced discovery and to determine how to proceed with
Rago’s case. For the second exclusion—the 63‐day continuance granted during a hearing
with the parties—the court’s reason for the exclusion was that it allowed for adequate time
for plea negotiations. These are sufficient reasons that serve the ends of justice and
outweigh the public’s and Rago’s interests in a speedy trial. Moreover, in both instances,
Rago’s counsel agreed to the continuance when the court first granted them.
For the remaining two exclusions—the continuances apparently requested by the
parties over the telephone—the district court stated that these continuances were necessary
to allow defense counsel more time to review discovery and adequately prepare Rago’s
case. Rago’s counsel admitted as much at the hearing when the court considered the
No. 10‐2895 Page 4
motion’s merits. This is a sufficient reason supporting the court’s finding that the ends of
justice were served by the exclusions.
Rago’s argument on appeal is not that the reasons themselves for the exclusions were
improper, but that the district court improperly justified the exclusions after the fact—in
other words, that it was improper for the court to retroactively justify an exclusion as
serving the ends of justice.
Rago’s argument is misplaced because a court does not need to articulate its findings
justifying an ends‐of‐justice exclusion “contemporaneously with the exclusion.” Hills,
618
F.3d at 628. Instead, “it must do so by the time it rules on a defendant’s motion to dismiss.”
Id. That is what happened here: although the district court did not fully articulate its
findings justifying a Speedy Trial Act exclusion at the time the exclusion was made, the
district court did have justification for the exclusion when it was first made—and
specifically articulating these findings later when Rago made her motion to dismiss does
not violate the Act. The court committed no error, and therefore there was no violation of
Rago’s rights under the Speedy Trial Act. We AFFIRM.
