United States v. James Vorley ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21‐2242, 21‐2251, 21‐2666
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CEDRIC CHANU and JAMES VORLEY,
Defendants‐Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18‐cr‐00035 — John J. Tharp, Jr., Judge.
____________________
ARGUED MARCH 29, 2022 — DECIDED JULY 6, 2022
____________________
Before FLAUM, ST. EVE, and JACKSON‐AKIWUMI, Circuit
Judges.
FLAUM, Circuit Judge. This appeal presents several ques‐
tions, including whether placing manual “spoofing” orders—
here, precious metals orders that two traders, defendants‐ap‐
pellants James Vorley and Cedric Chanu, intended to with‐
draw before being filled—can amount to wire fraud. We ad‐
dress this question, as well as three issues stemming from the
trial.
2 Nos. 21‐2242, 21‐2251 & 21‐2666
For the following reasons, we affirm the district court’s
judgment.
I. Background
A. Factual Background
Deutsche Bank—a global banking and financial services
company—employed Chanu and Vorley as precious metals
traders. Vorley traded precious metals futures contracts from
May 2007 through March 2015 while based in London. Chanu
was similarly a precious metals futures contract trader from
March 2008 through May 2011 in London and from May 2011
through December 2013 in Singapore.
A futures contract is a legally binding agreement to buy or
sell a particular product or financial instrument at an agreed‐
upon price on an agreed‐upon date in the future. Futures con‐
tracts are traded on markets designated and regulated by the
United States Commodity Futures Trading Commission
(“CFTC”). One such commodities marketplace, the CME
Group, Inc., consists of four exchanges—including the New
York Mercantile Exchange, where palladium futures con‐
tracts trade, and the Commodity Exchange, Inc. (“COMEX”),
where gold and silver futures contracts trade. CME Group ex‐
changes use an electronic trading platform known as Globex
to trade futures contracts from anywhere in the globe. During
the time relevant to this appeal, the CME Group operated
Globex using trading engines in Illinois.
Traders using Globex place “bids” to buy or “offers” to sell
futures contracts at a specified price or level. Between 2008
and 2013, the Globex system permitted traders to obscure cer‐
tain information about their trades. Instead of displaying all
Nos. 21‐2242, 21‐2251 & 21‐2666 3
orders resting on Globex, as the system does now, the “order
book” at this time displayed only a subset of bids and offers—
the “best ten bids and best ten price levels up and down.”
Given this presentation, not all trade details were readily dis‐
cernable from Globex; a trader could, for example, obscure
the full size of his or her intended trade order by placing an
“iceberg” order—which shows only a preset fraction of the
total intended trade order—to mitigate market movement
and detrimental price impacts. Illustrating this concept, if a
trader intends to buy a thousand contracts, he or she may
elect to show only one hundred at a time; once the first hun‐
dred contracts are filled, the next one hundred contracts be‐
come visible to other traders, until the full order quantity is
filled.
Visible orders impact the market by conveying investors’
“intent to participate” in the market at a particular price; these
orders also “communicat[e] something about the liquidity in
the market.” Iceberg orders were a permissible way of mini‐
mizing market movement in light of the fact that larger buy
orders correlated to larger price responses in the financial
market.1 In the words of the government’s expert, “if a buy
order arrives, typically the price of the commodity will move
1 The mitigating impact of “iceberg” orders was discussed at trial. For
example, a trader explained that
If [a trader is] selling 100 lots or 100 contracts of gold, [the
trader] would place an iceberg of one. So in the market …
other participants will only see one lot rather than the full
hundred‐lot size. And the purpose of that was because if
[the trader] showed the full 100, the market would be able
to see that there’s a fairly big sell order, and [the trader]
might not get as good a price when … trying to sell it.
4 Nos. 21‐2242, 21‐2251 & 21‐2666
higher. And the larger the buy order that is made visible to
market participants, the larger … the price response typically
[will be] in the financial market.”
COMEX traders could also cancel an order, or the unfilled
portion of an order, at any time before it was filled. But, gen‐
erally speaking, the CME rules do not permit deception; con‐
sequently, traders are prohibited from placing orders that
they intend to cancel before execution. Furthermore, traders at
Deutsche Bank, including Chanu and Vorley, received train‐
ing from Deutsche Bank’s compliance department in 2009 ex‐
plaining that “market manipulation” was prohibited.2
Deutsche Bank took the position that “[t]rading should never
be designed to give a false or misleading impression as to the
supply or demand” and “[t]rades should never be executed at
abnormal or artificial levels.”
Turning to the conduct underpinning this criminal case,
Chanu and Vorley placed orders for precious metals futures
contracts on one side of the market that, at the time the orders
were placed, they intended to cancel prior to execution. The
government alleged that Chanu and Vorley placed such or‐
ders with the intent “to create and communicate false and
misleading information regarding supply or demand (i.e., or‐
ders they did not intend to execute) in order to deceive other
traders” and entice them to react to the false and misleading
2 The Deutsche Bank training materials noted that “[t]he definition of
market manipulation varies from jurisdiction to jurisdiction, but for our
purposes, it is any transaction or order to trade which gives or is likely to
give a false or misleading impression as to the supply, demand for, or
price of one or more investments. Dissemination of information by any
means which gives or is likely to give a false or misleading impression.”
Nos. 21‐2242, 21‐2251 & 21‐2666 5
increase in supply or demand. As noted above, at all times
relevant to this case, CME rules prohibited such conduct.
Specifically at issue was Chanu and Vorley’s manual
“spoofing” conduct, which involved placing “fake bids and
offers” to “trick other market participants.” Chanu and Vor‐
leyʹs trading colleague, David Liew, who testified against
them at trial pursuant to a plea agreement, explained how
manual spoofing worked: In an effort to buy something at the
lowest possible price, that trader may use spoofing. Spoofing
entails “plac[ing] orders opposite of [the] buy order … [with
the] intent to have those offers deceive other market partici‐
pants into thinking that there was more selling than there ac‐
tually was and so hoping to get a better price on [the] original
order.” In Liew’s words, a spoofing trader tries “to signal that
[certain] trades would go through, but [the trader’s] intent is
actually to cancel them shortly after.” Liew testified that, if
successful, employing this illusion “would help Deutsche
Bank” while “hurt[ing] any other market participants.”
Of note, there are times when a trader may “cancel an or‐
der for totally legitimate reasons.” A client may change their
wishes or breaking news may “cause[] [the trader] to think
differently about whether a buy or sell was a good idea.” Alt‐
hough, as Liew explained, Deutsche Bank had a rule “where
there should be only one person active in the market,” and
that person would be referred to as the “book runner,” there
were times when Chanu and Vorley placed opposite orders
(for example, a sell order placed to facilitate a buy order, and
vice versa) in violation of this rule. The rule was intended to
avoid “different people placing orders that might confuse
each other.” If, however, a trader is “the book runner and [the
trader’s] colleagues are aware that [they are] selling
6 Nos. 21‐2242, 21‐2251 & 21‐2666
something, and if [the trader] see[s] them buying … and es‐
pecially if they don’t talk to [the trader] about a trade and
they’re just placing orders very quickly and cancelling, [the
trader] has very good reason to believe that those orders
placed by them were to assist [the book running trader] buy‐
ing or selling rather than genuine intent.”
The government also presented evidence of Chanu and
Vorley’s trading patterns and resultant “fill ratios” in an at‐
tempt to align their record with the description of spoofing. A
“[f]ill ratio is the ratio of the quantity that is filled divided by
the quantity that is submitted.” Looking to Chanu and Vor‐
ley’s relative fill ratios, “the fill ratio for the iceberg orders
tend[ed] to be high, close to 90 percent, whereas the fill ratios
of the visible orders tend[ed] to be quite lower, .2 percent.”
The traders communicated amongst themselves via elec‐
tronic chat. These included Vorley saying “UBS and this
spo[o]fing is annoying me … it[’]s illegal for a start” and
Chanu applauding another trader for tricking the algorithm.
Overall, although the trading mechanics are quite com‐
plex, the defendants’ actual actions are not in dispute. The fo‐
cus here is on the interaction between the defendants’ actions
and the conduct prohibited by relevant criminal statutes.
B. Statutory Background
Defendants were charged with conspiracy to commit wire
fraud affecting a financial institution under 18 U.S.C. § 1343;
on appeal, however, they argue any trading conduct akin to
“manual spoofing” was not criminal prior to the Dodd‐Frank
Wall Street Reform and Consumer Protection Act, Pub. L. No.
111‐203, 124 Stat. 1376 (2010). Although the outcome of this
Nos. 21‐2242, 21‐2251 & 21‐2666 7
appeal turns solely on the wire fraud statute, a brief overview
of both statutes helps situate the parties’ arguments.
First, and of primary relevance, the federal wire fraud stat‐
ute was enacted back in 1952. 18 U.S.C. § 1343. Applicable to
fraud by wire, radio, or television, the statute states:
Whoever, having devised or intending to devise
any scheme or artifice to defraud, or for obtain‐
ing money or property by means of false or
fraudulent pretenses, representations, or prom‐
ises, transmits or causes to be transmitted by
means of wire, radio, or television communica‐
tion in interstate or foreign commerce, any writ‐
ings, signs, signals, pictures, or sounds for the
purpose of executing such scheme or artifice,
shall be fined under this title or imprisoned not
more than 20 years, or both. If the violation …
affects a financial institution, such person shall
be fined not more than $1,000,000 or imprisoned
not more than 30 years or both.
Id. Wire fraud affecting a financial institution has a 10‐year
statute of limitations. 18 U.S.C. § 3293(2) (“No person shall be
prosecuted … for a violation of … [§] 1343, if the offense af‐
fects a financial institution … unless the indictment is re‐
turned or the information is filed within 10 years after the
commission of the offense.”); 18 U.S.C. § 20 (defining financial
institution). The wire fraud statute is expansive and is exam‐
ined in detail below.
Second, and relevant only for context, the Dodd‐Frank Act
was enacted in 2010 to reform many facets of our financial
regulatory system. Dodd‐Frank included an amendment to
8 Nos. 21‐2242, 21‐2251 & 21‐2666
“prohibited transactions” under the Commodities Exchange
Act, 7 U.S.C. § 6c(a)(5)(C), by defining spoofing and explicitly
recognizing spoofing as a disruptive practice. The Dodd‐
Frank Act did not go into effect until 2011, Pub. L. No. 111‐
203, § 754, 124 Stat. 1376, 1754 (2010), and prosecution for pro‐
hibited conduct is time‐barred after five years, 18 U.S.C.
§ 3282.
We turn now to the procedural history that sets the stage
for the legal issues raised on appeal.
C. Procedural Background
In an indictment filed on July 24, 2018, the government
charged Chanu and Vorley with conspiracy to commit wire
fraud affecting a financial institution between 2009 and 2011
in violation of 18 U.S.C. § 1343.
The Speedy Trial Act applies to this prosecution. The Act’s
protections are triggered when an indictment is filed or the
defendant is arraigned, whichever occurs later. 18 U.S.C.
§ 3161(c)(1). Because the defendants raise a Speedy Trial Act
challenge on appeal, we pay close attention to the timeline of
proceedings below.
Vorley was arraigned on August 14, 2018; Chanu was ar‐
raigned on September 25, 2018. The government and defend‐
ants’ counsel agreed to defer the next status hearing until No‐
vember 15, 2018. The district court noted that Speedy Trial Act
time was excluded through November 15, 2018, to give coun‐
sel the opportunity to obtain and review discovery materials
from the government and to consider what pretrial motions
may be appropriate. The district court also entered a specific
finding that “the ends of justice served by taking this action
Nos. 21‐2242, 21‐2251 & 21‐2666 9
outweigh the best interest of the public and the defendants in
a speedy trial.”
On November 15, 2018, Chanu and Vorley filed their mo‐
tion to dismiss the indictment in full, contending that the in‐
dictment failed to state an offense pursuant to Federal Rule of
Criminal Procedure 12(b)(3)(B)(v). That same day, the district
court entered an order stating that “[t]ime will be excluded
through briefing and ruling on the defendants[’] motion to
dismiss pursuant to 18 U.S.C. § 3161(h)(1)(D).”3
As relevant to this appeal, Chanu and Vorley’s motion to
dismiss argued that the indictment failed to sufficiently allege
wire fraud because it did not identify a “false statement.”
They argued that the allegedly fraudulent orders (1) were not
“false and misleading representations of supply and de‐
mand,” (2) that Chanu and Vorley did not, simply by placing
an order, implicitly represent to the market that they intended
for the order to be filled, and (3) that the government was im‐
properly attempting to prosecute as wire fraud a non‐fiduci‐
ary’s “failure to disclose.” Multiple amici, including the Bank
Policy Institute, the U.S. Chamber of Commerce, the Securi‐
ties Industry and Financial Markets Association, and the Fu‐
tures Industry Association, filed briefs raising concerns that
3 18 U.S.C. § 3161(h)(1)(D) provides:
The following periods of delay shall be excluded … in
computing the time within which the trial of any such of‐
fense must commence: … Any period of delay resulting
from other proceedings concerning the defendant, in‐
cluding but not limited to … 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.
10 Nos. 21‐2242, 21‐2251 & 21‐2666
the government’s “sweeping” application of the wire fraud
statute risks implicating “legitimate, non‐fraudulent commer‐
cial conduct.”
In an extensive, 37‐page order issued on October 21, 2019,
(about six months after briefing was completed) the district
court denied Chanu and Vorley’s motion to dismiss. The dis‐
trict court reasoned:
[D]efendants’ arguments come up short in two
respects, one legal and one factual. As a ques‐
tion of law, the defendants’ argument that a
wire fraud conviction requires proof of a false
statement is inconsistent with both the history
of the wire fraud statute and Circuit precedent.
That the indictment alleges no affirmative mis‐
representations by the defendants does not
mean that the defendants could not have en‐
gaged in a scheme to defraud by means of im‐
plied misrepresentations. And whether the de‐
fendants’ Spoofing Orders carried with them
any implied misrepresentations is the central
fact question presented by the indictment.
As the district court summarized, “[i]n short: Wire fraud
does not require proof of affirmative misstatements; implied
misrepresentations will also suffice.”
Ten days later, on October 31, 2019, the district court held
a status hearing where it explained “it would have been great
if [the court] could have resolved it [the motion to dismiss]
more quickly than [the court] did, but it was a substantial mo‐
tion, and [the court] could understand the defendants not
wanting to invest a ton of resources and money into
Nos. 21‐2242, 21‐2251 & 21‐2666 11
something while a—I’m trying not to cast aspersions on oth‐
ers, but, you know, this was no ordinary boilerplate motion
to dismiss.” The district court further noted it would “con‐
tinue to exclude time in view of the complexity of the case, the
need to provide additional discovery and to ensure that the
defendants have an adequate opportunity to prepare a de‐
fense.” The district court found that “the ends of justice in ex‐
cluding time through [the next status hearing on] November
26 outweigh the public and the defendants’ interest in a
speedy trial.”
The government filed a superseding indictment on No‐
vember 26, 2019, which expanded the period of the charged
conspiracy to 2008–2013. The government described two
goals for this superseding indictment: first, to extend the al‐
leged conspiracy period in response to comments made in de‐
fendants’ motion to dismiss, and second, to add substantive
wire fraud counts to focus on specific trading sequences.
Count 1 charged Vorley and Chanu with conspiracy to com‐
mit wire fraud affecting a financial institution. The remaining
sixteen counts encompassed specific alleged incidents of wire
fraud.
On January 16, 2020, the defense preserved its objection to
the superseding indictment, but did not file another motion
to dismiss. The district court confirmed on the record that it
would deny a second motion to dismiss the superseding in‐
dictment for the reasons explained in its denial of the first mo‐
tion to dismiss.
On May 20, 2020, Chanu and Vorley filed a motion to dis‐
miss the superseding indictment with prejudice based on an
alleged violation of the Speedy Trial Act stemming from “189
days of non‐excludable time that elapsed while the
12 Nos. 21‐2242, 21‐2251 & 21‐2666
defendants’ motion to dismiss was pending.” This motion ar‐
gued that no more than 30 days had been automatically ex‐
cluded after the court took the motion under advisement, per
18 U.S.C. § 3161(h)(1)(H).4 The 189‐day period is calculated by
defendants from April 25 (thirty days after briefing con‐
cluded) to October 31, 2019 (the status hearing when the dis‐
trict court next excluded time under the Speedy Trial Act).
On July 21, 2020, the district court denied defendants’ mo‐
tion to dismiss based on the Speedy Trial Act. The district
court noted that “[w]hile courts must make ends‐of‐justice
findings to exclude time under § 3161(h)(7),5 those findings
4 18 U.S.C. § 3161(h)(1)(H) provides:
The following periods of delay shall be excluded … in
computing the time within which the trial of any such of‐
fense must commence: … Any period of delay resulting
from other proceedings concerning the defendant, in‐
cluding but not limited to … delay reasonably attributa‐
ble to any period, not to exceed thirty days, during which
any proceeding concerning the defendant is actually un‐
der advisement by the court.
5 18 U.S.C. § 3161(h)(7) excludes from time computation
[a]ny 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 at‐
torney for the Government, if the judge granted such con‐
tinuance on the basis of his findings that the ends of jus‐
tice served by taking such action outweigh the best inter‐
est 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 subsection 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
Nos. 21‐2242, 21‐2251 & 21‐2666 13
do not have to be entered on the record at the time the contin‐
uance is granted.” The district court went on to explain in
more detail:
Unfortunately, I did not articulate the ends‐of‐
justice provision as the basis for excluding time
going forward from November 15. Instead, I re‐
lied on the automatic exclusions of time for the
briefing and consideration of pretrial motions.
As a matter of administrative efficiency, where
an automatic exclusion of time applies, I gener‐
ally rely on that provision to exclude time rather
than making an additional ends‐of‐justice find‐
ing that also provides a basis for excluding time.
Eschewing redundancy paid no dividend here,
however; a full articulation of my reasoning
would have obviated this motion. I com‐
pounded the problem, moreover, by errone‐
ously construing the automatic exclusions ap‐
plicable to the briefing and consideration of mo‐
tions to extend to the disposition of the motion,
whereas § 3161(h)(1)(H) limits the automatic ex‐
clusion for consideration of a pretrial motion to
30 days (that is why I cited only § 3161(h)(1)(D)
as the basis for exclusion and omitted reference
to § 3161(h)(1)(H)). Having misconstrued the
duration of the exclusion, I believed the auto‐
matic exclusion provided a sufficient basis to
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) (emphasis added) (formerly § 3161(h)(8)).
14 Nos. 21‐2242, 21‐2251 & 21‐2666
exclude time through the ruling on the motion
to dismiss and that there was therefore no need
to exclude time pursuant to § 3161(h)(7). That
was a mistake, obviously, but not one that prej‐
udiced the defendants. Had I not made that mis‐
take (or had any party noted the Court’s error),
I unquestionably would have remedied the er‐
ror by including my determination that the de‐
fendants’ request to defer other pretrial motions
warranted an ends‐of‐justice exclusion under
§ 3161(h)(7).
Even though the district court did not make an ends‐of‐
justice finding on the record on November 15, 2018, the dis‐
trict court specifically did so on July 21, 2020. The district
court also emphasized that a substantial period of delay had
been “unavoidable” due to the restrictions on the court oper‐
ations necessitated by the COVID‐19 pandemic.
Chanu and Vorley’s trial was held in September 2020. Rel‐
evant to this appeal, the district court overruled the defend‐
ants’ objection to the admission of Vorley’s “spo[o]fing is …
illegal” chat. Although the defendants contended that the
chat referred to a different kind of spoofing than the spoofing
that formed the basis of the criminal indictment, the judge
held that the meaning of the chat was a question of fact for the
jury.
Furthermore, the district court rejected several of defend‐
ants’ requested modifications to the jury instructions focused
on explaining the term “scheme to defraud” in the wire fraud
statute. The district court also declined to give the defendants’
proposed “good faith” jury instruction, reasoning that the
Nos. 21‐2242, 21‐2251 & 21‐2666 15
intent required to prove wire fraud was incompatible with
good faith.
The jury deliberated for four days and returned several
deadlock notes before acquitting Chanu and Vorley on the
conspiracy count. Vorley was convicted of three counts of
wire fraud (Counts 2, 8, 10), and Chanu was found guilty of
seven counts of wire fraud (Counts 3, 9, 11, 12, 14, 15, and 16).
The district court denied defendants’ motion for a judgment
of acquittal and motion for a new trial, raising many of the
same issues now before us on appeal. The district court sen‐
tenced Vorley and Chanu to one year and one day of impris‐
onment.
Chanu and Vorley now appeal.
II. Discussion
On appeal, Chanu and Vorley raise four issues:
(1) whether “spoofing” of readily tradeable, at‐risk orders
that a trader is willing to honor if executed violates the wire
fraud statute; (2) whether the district court correctly in‐
structed the jury; (3) whether the district court abused its dis‐
cretion in admitting Vorley’s chat message stating that a com‐
petitor bank’s “spo[o]fing is … illegal”; and (4) whether this
case should be dismissed under the Speedy Trial Act. We ad‐
dress each question in turn.
A. Manual Spoofing and the Wire Fraud Statute
The first issue on appeal is whether Chanu and Vorley’s
manual spoofing conduct violated the wire fraud statute. The
defendants frame the “threshold legal issue” as whether
spoofing was “already a crime under the general wire fraud
statute”—a statute that significantly pre‐dated the relevant
16 Nos. 21‐2242, 21‐2251 & 21‐2666
provision in Dodd‐Frank prohibiting spoofing. See Pub. L.
No. 111‐203, § 747, 124 Stat. 1376, 1739 (2010); 7 U.S.C.
§ 6c(a)(5)(C). Chanu and Vorley are challenging the district
court’s denial of their motion to dismiss the indictment for
failure to state a claim as well as the legal sufficiency of the
evidence to prove wire fraud.
We “review questions of law in a district court’s ruling on
a motion to dismiss an indictment de novo.” United States v.
White, 610 F.3d 956, 958 (7th Cir. 2010) (per curiam). An in‐
dictment must “(1) state[] the elements of the offense charged;
(2) fairly inform[] the defendant of the nature of the charge so
that he may prepare a defense; and (3) enable[] him to plead
an acquittal or conviction as a bar against future prosecutions
for the same offense.” United States v. Miller, 883 F.3d 998, 1002
(7th Cir. 2018). We also “review de novo the denial of a de‐
fendant’s motion for acquittal.” United States v. Hernandez, 952
F.3d 856, 859 (7th Cir. 2020). We will “uphold the verdict if
any rational trier of fact could have found the essential ele‐
ments of the crime beyond a reasonable doubt.” United States
v. Coscia, 866 F.3d 782, 795 (7th Cir. 2017). “Given our defer‐
ence to jury determinations on evidentiary matters, we rarely
reverse a conviction for mail or wire fraud due to insufficient
evidence.” United States v. Weimert, 819 F.3d 351, 354 (7th Cir.
2016).
The wire fraud statute, 18 U.S.C. § 1343, criminalizes the
use of wire, radio, or television communications to effect “any
scheme or artifice to defraud, or for obtaining money or prop‐
erty by means of false or fraudulent pretenses .…” To convict
on wire fraud, the government must prove three elements:
“(1) the defendant participated in a scheme to defraud; (2) the
defendant intended to defraud; and (3) a use of an interstate
Nos. 21‐2242, 21‐2251 & 21‐2666 17
wire in furtherance of the fraudulent scheme.” United States v.
Powell, 576 F.3d 482, 490 (7th Cir. 2009). In clarifying the stat‐
utory term “scheme or artifice to defraud,” the Supreme
Court has held that materiality of falsehood is an element of
the federal wire fraud statute. See Neder v. United States, 527
U.S. 1, 25 (1999).
Defendants contest the applicability of the wire fraud stat‐
ute in this case, claiming that the government charged them
with wire fraud “in order to retroactively criminalize manual
spoofing that pre‐dated the July 16, 2011 effective date of
Dodd‐Frank using the 10‐year statute of limitations for wire
fraud that affects a financial institution.” By Chanu and Vor‐
ley’s formulation, acceptance of the government’s theory
“would transform the federal wire fraud statute into an all‐
purpose law for criminalizing violations of exchange rules—
or any trading tactics the government deems to be dishon‐
est—because such violations or tactics could always be char‐
acterized as implied misrepresentations of good faith.” To
avoid this outcome, Chanu and Vorley raise two primary ar‐
guments. First, they contend that the wire fraud statute re‐
quires proof of an affirmative (rather than implied) misrepre‐
sentation. And second, even if an implied misrepresentation
is enough, the defendants insist that their implied misrepre‐
sentations—i.e., the implied misrepresentation that Chanu
and Vorley wanted to fill, not cancel, their spoofing orders—
could not be material.
To answer whether this manual spoofing conduct violated
the wire fraud statute, we ask two questions: Was there a
scheme to defraud by means of false representations or omis‐
sions, and were such false representations or omissions mate‐
rial? Answering both questions in the affirmative, we
18 Nos. 21‐2242, 21‐2251 & 21‐2666
conclude Chanu and Vorley’s conduct was within the reach
of the wire fraud statute.
1. Scheme to Defraud by Means of False Represen‐
tation or Omission
In determining the scope of wire fraud, we begin with the
statutory formulation of our first prong of inquiry: “scheme
or artifice to defraud … by means of false or fraudulent pre‐
tenses, representations, or promises.” 18 U.S.C. § 1343. In
United States v. Coscia, 866 F.3d 782, we previously considered
whether spoofing amounts to a “scheme to defraud,” alt‐
hough under a similar, but not identical, statute—the com‐
modities fraud statute. Acknowledging the statutory differ‐
ences at play, we separately analyze “scheme to defraud” and
“by means of false representation.”
Beginning with “scheme to defraud,” the plain meaning
of “scheme” is “[a] systemic plan; a connected or orderly ar‐
rangement, esp[ecially] of related concepts” and “[a]n artful
plot or plan, usu[ally] to deceive others.” Scheme, Black’s Law
Dictionary (11th ed. 2019). The plain meaning of “defraud” is
“[t]o cause injury or loss to (a person or organization) by de‐
ceit; to trick (a person or organization) in order to get money.”
Defraud, Black’s Law Dictionary (11th ed. 2019).
Turning to the specifics of the trading conduct in this case,
our decision in Coscia, 866 F.3d 782, is on point. In Coscia, the
government alleged that the defendant “commissioned and
utilized a computer program designed to place small and
large orders simultaneously on opposite sides of the com‐
modities market in order to create illusory supply and de‐
mand and, consequently, to induce artificial market move‐
ment.” 866 F.3d at 785. Noting that the defendant, Michael
Nos. 21‐2242, 21‐2251 & 21‐2666 19
Coscia, “engaged in ten weeks of trading during which he
placed orders with the clear intent to cancel those orders prior
to execution,” this Court concluded that the defendant in‐
tended to inflate and deflate the price of certain commodities
and, thus, his conduct amounted to commodities fraud. Id. at
803.
Coscia establishes that placing orders on opposite sides of
the commodities market with the intent to cancel amounts to
a “deceitful” scheme, aiming “to manipulate the market for
[the trader’s] own financial gain.” Id. at 797. Nonetheless,
Chanu and Vorley attempt to distinguish Coscia. On its facts,
they note Coscia used a computer algorithm to engage in
high‐frequency trading, id. at 786 (“a mechanism for making
large volumes of trades in securities and commodities based
on trading decisions effected in fractions of a second”), rather
than the manual trades now before us. Because they were en‐
gaged in manual trading, Chanu and Vorley argue that their
trades—unlike Coscia’s—were actually tradable due to the
length of time they remained active prior to cancellation.
Speed at which the spoofing occurred aside, however, we still
rejected Coscia’s defense that he “placed real orders that were
exactly that, orders that were tradeable,” id. at 790, 797—the
same defense Chanu and Vorley now employ.
Chanu and Vorley also attempt to distinguish Coscia on
statutory grounds. As noted, Coscia was not charged under
the wire fraud statute now before us; instead, he was con‐
victed of commodities fraud under 18 U.S.C. § 1348(1).6
6 Coscia was also convicted of violating the anti‐spoofing provisions
of the Commodity Exchange Act, 7 U.S.C. §§ 6c(a)(5)(C) and 13(a)(2). That
conviction is not relevant for purposes of our analysis.
20 Nos. 21‐2242, 21‐2251 & 21‐2666
Under the wire fraud statue, “[a] scheme to defraud requires
the making of a false statement or material misrepresentation,
or the concealment of [a] material fact.” Powell, 576 F.3d at 490(alteration in original) (citation and internal quotation marks
omitted). Under the commodities fraud statute, by contrast,
“[f]alse representations or material omissions are not re‐
quired.” Coscia, 866 F.3d at 796. Defendants push for a clear
distinction on those underlying statutory grounds. We note,
however, that the commodities fraud statute, 18 U.S.C. § 1348,
was modeled on the mail and wire fraud statutes—as evi‐
denced by its text and legislative history. Id. at 799 & n.71
(“Several courts have recognized that because the text and
legislative history of 18 U.S.C. § 1348 clearly establish that it
was modeled on the mail and wire fraud statutes, an analysis
of Section 1348 should be guided by the caselaw construing
those statutes.” (citation and internal quotation marks omit‐
ted)); see also United States v. Doherty, 969 F.2d 425, 429 (7th
Cir. 1992) (holding that “scheme to defraud” has a consistent
meaning between 18 U.S.C. §§ 1341 [mail fraud], 1343 [wire
fraud], and 1344 [bank fraud]). And the jury instructions we
approved in Coscia were adapted from our pattern jury in‐
structions for mail, wire, and carrier fraud. 866 F.3d at 799.
Today, we need not decide whether the phrase “scheme to
defraud” bears a wholly identical meaning in both the com‐
modities fraud and the wire fraud statutes. Given the com‐
mon ground between these two statutes, it is enough that
Coscia establishes that this pattern of trading conduct is de‐
ceitful and aligns with the plain meaning of “scheme to de‐
fraud.” Thus, the fact that Coscia was convicted of commodi‐
ties fraud, and Chanu and Vorley were convicted of wire
fraud, is a distinction without a meaningful difference, at least
in this case.
Nos. 21‐2242, 21‐2251 & 21‐2666 21
Turning to the remaining statutory language, we analyze
whether real, at‐risk orders placed with the intent to cancel
amount to “means of false or fraudulent pretenses, represen‐
tations, or promises” as stated in 18 U.S.C. § 1343. At the out‐
set, we note that “false representation” encompasses a range
of conduct. Beyond affirmative misrepresentations a defend‐
ant knows to be false, the Supreme Court has explicitly held
that a material omission can amount to wire fraud. See Neder,
527 U.S. at 24–25. Failure to give the whole story may also be
fraud, especially when a defendant actively conceals infor‐
mation. Powell, 576 F.3d at 491. Finally, “[a] half truth, or what
is usually the same thing [as] a misleading omission, is action‐
able as fraud … if it is intended to induce a false belief and
resulting action to the advantage of the misleading and the
disadvantage of the misled.” United States v. Stephens, 421 F.3d
503, 507 (7th Cir. 2005) (some alterations in original) (quoting
Emery v. Am. Gen. Fin., 71 F.3d 1343, 1346 (7th Cir. 1995)). An
implied misrepresentation is simply an omission by another
name.
Defendants argue that their readily tradeable bids and of‐
fers are not rendered “false” by their subjective intent to can‐
cel. We agree that by simply placing an order, a trader is not
certifying it will never be cancelled. Instead, the order place‐
ment signals a trader’s intent to buy or sell. By obscuring their
intent to cancel, through an orchestrated approach, Chanu
and Vorley advanced a quintessential “half‐truth” or implied
misrepresentation—the public perception of an intent to trade
and a private intent to cancel in the hopes of financial gain.
We remain unconvinced by defendants’ arguments to the
contrary.
22 Nos. 21‐2242, 21‐2251 & 21‐2666
Thus, we find Chanu and Vorley’s actions amounted to a
scheme to defraud by means of false representations or omis‐
sions.
2. Materiality
We turn finally to the question of materiality. Defendants
argue that even if their actions amounted to a misrepresenta‐
tion or omission, those actions cannot be deemed material for
the purposes of the wire fraud statute. Wire fraud “requires a
material misrepresentation or omission.” Neder, 527 U.S. at 22.
In general, “a false statement is material if it has a natural ten‐
dency to influence, or [is] capable of influencing, the decision
of the decisionmaking body to which it was addressed.” Id. at
16.
The record clearly establishes that traders employing
manual spoofing do so with the aim (and effect) of influenc‐
ing other actors in the trading space. Defendants’ former col‐
league Liew testified that the spoofing illusion “would help
Deutsche Bank” while “hurt[ing] other market participants.”
Such action is neither customary nor relatively harmless. See
Weimert, 819 F.3d at 357 (outlining the bounds of criminaliz‐
ing deceptive misstatements or omissions about a buyer or
seller’s negotiating position). Thus, there is no question the
traders’ implied misrepresentations were material.
***
In summary, we conclude that the district court correctly
denied defendants’ motion to dismiss the indictment pursu‐
ant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v) be‐
cause manual spoofing of this kind falls under the wire fraud
prohibition, and we further reject the defendants’ contention
Nos. 21‐2242, 21‐2251 & 21‐2666 23
that the evidence was legally insufficient to prove wire fraud.
We are not categorically “unsympathetic to the … commen‐
tary regarding the ‘expansive glosses’ on the mail and wire
fraud statutes that have led to their liberal use by federal pros‐
ecutors,” Weimert, 819 F.3d at 371–72 (Flaum, J., dissenting),
but the inquiry into the reach of the wire fraud statute remains
fact‐specific. Here, the facts indicate defendants’ conduct falls
within the ambit of the wire fraud statute.
B. Jury Instructions Regarding Intent to Deceive and
Good Faith
The second issue on appeal stems from the district court’s
order denying the defendants’ request to modify its jury in‐
structions explaining the term “scheme to defraud” and to is‐
sue a good‐faith instruction.
“We review challenges to jury instructions de novo.”
Coscia, 866 F.3d at 799. “Nevertheless, ‘[t]he district court is
afforded substantial discretion with respect to the precise
wording of instructions so long as the final result, read as a
whole, completely and correctly states the law.’” Id. (quoting
United States v. Marr, 760 F.3d 733, 743 (7th Cir. 2014)).
The district court instructed the jury that a “scheme to de‐
fraud” is “a scheme that is intended to deceive or cheat an‐
other and to obtain money or property of another by means
of materially false or fraudulent pretenses, representations, or
promises.” William J. Bauer Pattern Criminal Jury Instruc‐
tions of the Seventh Circuit, 541 (2020 ed.). Chanu and Vorley
sought three changes to the jury instructions: (1) the deletion
of the word “deceive” from the instruction recounted above;
(2) an additional instruction to the jury that “misrepresenta‐
tions amounting only to a deceit do not meet a definition of a
24 Nos. 21‐2242, 21‐2251 & 21‐2666
scheme to defraud”; and (3) an additional “good faith” pat‐
tern instruction. We address each requested change in turn.
Little time needs to be spent discussing the first two issues
relating to “deception.” Defendants argue that a “mere
scheme to ‘deceive’ or ‘trick’ cannot support a wire fraud con‐
viction without some accompanying intent to harm the victim
of the scheme.” But, the jury instruction incorporates that
logic: You need deception, and you need an intent to cause
loss of money or property, i.e., intent to harm. The provided
instruction clearly delineates between “deceptive conduct
that is fraudulent” and “deceptive conduct that is not fraud‐
ulent.” The defendants’ argument that the repeated use of
“the disjunctive ‘deceive or cheat’ … convey[ed] to the jury
that a scheme to ‘deceive’ was itself sufficient to convict” is
cherry‐picking the center of the instruction. But we will “re‐
verse only if the instructions as a whole do not correctly inform
the jury of the applicable law and the jury is misled,” Marr,
760 F.3d at 743 (emphasis added), so defendants’ argument is
unconvincing.
Next, the district court decided to exclude the good faith
instruction. The court below felt the “proposed good faith in‐
struction was unnecessary and would potentially confuse the
jury because what can be argued as good faith can also be ar‐
gued as the absence of evidence of intent to defraud—a point
the Seventh Circuit has made in several cases affirming the
denial of a good faith instruction in fraud cases.” The district
court explained that to warrant a good faith instruction, a
trader “would have to believe that it was permissible for them
to devise a scheme intended to obtain money or property
from another by use of materially false or misleading infor‐
mation” and expressed skepticism that this could be done in
Nos. 21‐2242, 21‐2251 & 21‐2666 25
good faith. At trial, defense counsel responded that “[e]ven if
it’s not logically possible, the jury is going to be talking about
this in the jury room.”
The district court’s conclusion was based on our decisions
in United States v. Johnson, 874 F.3d 990, 1002 (7th Cir. 2017)
and United States v. Lunn, 860 F.3d 574, 579–80 (7th Cir. 2017).
Johnson held specifically that “[a] good faith instruction is not
required where lack of good faith is part of the charge.” 874
F.3d at 1002. The Johnson defendants were convicted of
crimes, including wire fraud, that required the jury to find
bad faith; they therefore were not entitled to an additional
good faith instruction. Id. Similarly, in Lunn, this Court held
that “an action taken in good faith is on the other side of an
action taken knowingly” and thus “it is impossible to intend
to deceive while simultaneously acting in good faith.” 860
F.3d at 580.
The defendants’ attempts to factually distinguish Johnson
and Lunn are unconvincing. Lunn involved a conviction for
bank fraud, and Johnson involved a conviction for wire fraud;
“scheme to defraud” bears the same meaning between these
two statutes. Doherty, 969 F.2d at 429. In both cases, the re‐
quested jury instruction (good faith) was the same. Given
these constants, the rule is clear, and Chanu and Vorley can‐
not demonstrate that “the failure to include [the good faith]
instruction … den[ied] the defendant[s] a fair trial.” See United
States v. Douglas, 818 F.2d 1317, 1320–21 (7th Cir. 1987) (hold‐
ing “that a defendant is entitled to an instruction on his or her
theory of defense if: the defendant proposes a correct state‐
ment of the law; the defendantʹs theory is supported by the
evidence; the defendantʹs theory of defense is not part of the
charge; and the failure to include an instruction on the
26 Nos. 21‐2242, 21‐2251 & 21‐2666
defendantʹs theory of defense in the jury charge would deny
the defendant a fair trial”). Today we address only the exclu‐
sion of a good faith instruction in the case before us. Given the
substantial deference afforded to a district court in formulat‐
ing the language of a jury instruction, this opinion should not
be read to preclude the inclusion of such an instruction in a
future case. See United States v. Brandon, 50 F.3d 464, 468 (7th
Cir. 1995) (holding no error in giving the jury a good faith in‐
struction for a defendant charged with four counts of wire
fraud).
For these reasons, we hold there was no error in excluding
the “good faith” instruction.
C. Admissibility of Electronic “Spoofing” Messages
The third issue on appeal relates to defendants’ motion in
limine asking the court to exclude certain electronic commu‐
nications using the word “spoof.”7 We look to whether this
evidence was improperly admitted.
“All evidentiary questions begin with [Federal Rule of Ev‐
idence] 402, which contains the general principle that ‘[r]ele‐
vant evidence is admissible’ and ‘[i]rrelevant evidence is
not.’” United States v. Gomez, 763 F.3d 845, 853 (7th Cir. 2014)
(en banc) (quoting Fed. R. Evid. 402). Evidence is relevant if it
“is both probative (having ‘any tendency to make a fact more
or less probable than it would be without the evidence’) and
7Although there are other arguably relevant chats, the sole focus of
the appellants’ brief is on the “spo[o]fing … is illegal” chat. Because any
“[u]ndeveloped arguments are waived on appeal.” Vesey v. Envoy Air, Inc.,
999 F.3d 456, 464 (7th Cir. 2021), we focus only on this single chat, rather
than the series of chats identified by the government using search terms
such as “spoof,” “manipulate,” and “help.”
Nos. 21‐2242, 21‐2251 & 21‐2666 27
material (the fact must be ‘of consequence in determining the
action’).” Id. (quoting Fed. R. Evid. 401). Even if evidence is
admissible, however, it “may be excluded under Rule 403,”
which “gives the district court discretion to exclude relevant
evidence if its probative value is “substantially outweighed
by a danger of ... unfair prejudice.” Id. at 856–57 (quoting Fed.
R. Evid. 403). As a rule, “[w]e give special deference to a dis‐
trict court’s evidentiary rulings, and we reverse these rulings
only if no reasonable person could take the judge’s view of
the matter.” United States v. Pulliam, 973 F.3d 775, 782 (7th Cir.
2020) (citations and internal quotation marks omitted).
Prior to the start of trial, the government indicated it in‐
tended to offer electronic chat messages between precious
metals traders. Chanu and Vorley moved in limine to preclude
the admission of chat evidence under Federal Rules of Evi‐
dence 401 and 403. On appeal, they challenge only the admis‐
sion of one chat, dated October 2, 2007. In it, Vorley wrote:
“UBS and this spofing [sic] is annoying me … its [sic] illegal
for a start.”
Defendants contend this chat does not relate to the same
variety of spoofing at issue in this case, but instead refers to
an agreement that the major banks had with each other where
one bank could call another bank and ask for a two‐way price
to either buy or sell precious metals in preset amounts. Alt‐
hough this was a “gentlemen’s agreement,” banks would
sometimes use the calls “to make [a trader] think that they
were a buyer when they were really a seller[.]” This risked
leaving the other banks feeling “duped” into giving a “bad”
price.
The district court concluded that the meaning of the chat
was an issue of fact for the jury. The district court stated:
28 Nos. 21‐2242, 21‐2251 & 21‐2666
If it’s as clear as you say that this refers to an‐
other practice, then, No. 1, the jury should have
no trouble understanding that point; and, No. 2,
I think it[] … may backfire on the government if
it’s that clear. But we’re having a trial right now
about whether the defendants engaged in illegal
conduct, part of which there is some evidence is
referred to as spoofing. It is a fact question as to
whether that occurred or not, and a defendant
using the term in a discussion about illegal con‐
duct I think is a sufficient predicate to put the
question before the jury.
Defendants characterize the chats as “irrelevant and prej‐
udicial.” By their formulation, had these electronic chats been
excluded, they “would likely have been acquitted across the
board.” The government, by contrast, argues that even if the
chats in question referred to a different variety of spoofing,
the chats (1) showed Vorley knew a different variety of spoof‐
ing (over‐the‐counter market) was illegal, (2) showed Vorley’s
consciousness of guilt, and (3) cast doubt on Vorley’s past
statement to compliance officers (specifically the explanation
that his use of “spoof” mainly referred to a game the traders
played to decide who would get breakfast or coffee).
The district court correctly determined that the infor‐
mation in question was relevant for the reasons articulated by
the government. See Fed. R. Evid. 401; Gomez, 763 F.3d at 853.
Moreover, under the applicable deferential review standard,
a reasonable person could agree that the chat passed muster
under Rule 403, as well. Evidence will only be excluded under
Rule 403 if its probative value “is substantially outweighed by
the risk of unfair prejudice.” Gomez, 763 F.3d at 860.
Nos. 21‐2242, 21‐2251 & 21‐2666 29
“Recognizing that ‘most relevant evidence is, by its very na‐
ture, prejudicial, we have emphasized that evidence must be
unfairly prejudicial to require exclusion.’” United States v. Bo‐
ros, 668 F.3d 901, 909 (7th Cir. 2012) (some internal quotation
marks omitted) (quoting United States v. Hanna, 630 F.3d 505,
511 (7th Cir. 2010)). “Evidence poses a danger of ‘unfair prej‐
udice’ if it has ‘an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emo‐
tional one.’” United States v. Rogers, 587 F.3d 816, 822 (7th Cir.
2009) (quoting Fed. R. Evid. 403 advisory committee’s note on
proposed rules). Because the defendants had ample oppor‐
tunity to present evidence and argue to the jury that their in‐
terpretation of the chat was the correct one, the district court
did not err when it held that the chat was not unfairly preju‐
dicial.
D. Speedy Trial Act Challenge
The final issue on appeal is defendants’ challenge to the
district court’s order denying defendants’ motion to dismiss
based on an alleged violation of the Speedy Trial Act. “We
review the district court’s legal interpretations of the [Speedy
Trial] Act de novo, and its decisions to exclude time for an
abuse of discretion.” United States v. Parker, 716 F.3d 999, 1005
(7th Cir. 2013) (alteration in original) (quoting United States v.
Wasson, 679 F.3d 938, 943 (7th Cir. 2012)). “Absent legal error,
we will reverse the district court’s decision to exclude time
only where the defendant can show both an abuse of discre‐
tion and actual prejudice.” United States v. Ramirez, 788 F.3d
732, 735 (7th Cir. 2015).
The Speedy Trial Act of 1974 governs the timely com‐
mencement of a federal criminal trial after a defendant is
charged or makes an initial appearance. The Act provides that
30 Nos. 21‐2242, 21‐2251 & 21‐2666
the trial of a defendant charged in an infor‐
mation or indictment with the commission of an
offense shall commence within seventy days
from the filing date (and making public) of the
information or indictment, or from the date the
defendant has appeared before a judicial officer
of the court in which such charge is pending,
whichever date last occurs.
18 U.S.C. § 3161(c)(1). Recognizing, however, “that criminal
cases vary widely and that there are valid reasons for greater
delay in particular cases[,] …. the Act includes a long and de‐
tailed list of periods of delay that are excluded in computing
the time within which trial must start.” Zedner v. United States,
547 U.S. 489, 497 (2006). As relevant here, § 3161(h)(1)–(6) pro‐
vides for certain automatic exclusions. See Parker, 716 F.3d at
1006 (“[P]eriods of delay excludable under § 3161(h)(1)–(6)
may be automatically excluded if the specified conditions are
present” (alteration in original) (citation omitted)). But see
Bloate v. United States, 559 U.S. 196, 213–14 (2010) (holding that
time granted to prepare pretrial motions in a criminal case is
not automatically excludable for purposes of the Speedy Trial
Act but instead requires case‐specific, ends‐of‐justice find‐
ings). But, “[m]uch of the Act’s flexibility is furnished by
[§ 3161(h)(7)], which governs ends‐of‐justice continu‐
ances ….” Zedner, 547 U.S. at 498. An exclusion under
§ 3161(h)(7) is not automatic but instead “requires specific
findings.” See Bloate, 559 U.S. at 213. Section § 3161(h)(7) pro‐
vides, in relevant part:
(A) Any period of delay resulting from a contin‐
uance granted by any judge on his own motion
or at the request of the defendant or his counsel
Nos. 21‐2242, 21‐2251 & 21‐2666 31
or at the request of the attorney for the Govern‐
ment, 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 ac‐
cordance with this paragraph shall be excluda‐
ble under this subsection 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 continu‐
ance 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 na‐
ture of the prosecution, or the existence of novel
questions of fact or law, that it is unreasonable
to expect adequate preparation for pretrial pro‐
ceedings or for the trial itself within the time
limits established by this section.
....
32 Nos. 21‐2242, 21‐2251 & 21‐2666
(iv) Whether the failure to grant such a continu‐
ance 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 reasonable time
to obtain counsel, would unreasonably deny the
defendant or the Government continuity of
counsel, or would deny counsel for the defend‐
ant or the attorney for the Government the rea‐
sonable time necessary for effective prepara‐
tion, taking into account the exercise of due dil‐
igence.
(C) No continuance under subparagraph (A) of
this paragraph shall be granted because of gen‐
eral congestion of the courtʹs calendar, or lack of
diligent preparation or failure to obtain availa‐
ble witnesses on the part of the attorney for the
Government.
In summary, “[t]his provision permits a district court to
grant a continuance and to exclude the resulting delay if the
court, after considering certain factors, makes on‐the‐record
findings that the ends of justice served by granting the con‐
tinuance outweigh the public’s and defendant’s interests in a
speedy trial.” Zedner, 547 U.S. at 498–99. In practice, “[t]his
provision gives the district court discretion—within limits
and subject to specific procedures—to accommodate limited
delays for case‐specific needs.” Id. at 499.
The parties take opposing positions on the question of
whether § 3161(h)(7) requires an ends‐of‐justice finding on
the record at the time of granting the continuance or whether
a post‐hoc explanation satisfies the on‐the‐record finding
Nos. 21‐2242, 21‐2251 & 21‐2666 33
requirement. Supreme Court and Seventh Circuit precedent
provide a clear answer to this question.
In Zedner, the Supreme Court stated that “[a]lthough the
Act is clear that the findings must be made, if only in the
judge’s mind, before granting the continuance (the continu‐
ance can only be ‘granted … on the basis of [the court’s] find‐
ings’), the Act is ambiguous on precisely when those findings
must be ‘se[t] forth, in the record of the case.’” 547 U.S. at 506–
07 (some alterations in original). “However this ambiguity is
resolved, at the very least the Act implies that those findings
must be put on the record by the time a district court rules on
a defendant’s motion to dismiss under § 3162(a)(2).” Id. at 507.
“The best practice, of course, is for a district court to put its
findings on the record at or near the time when it grants the
continuance.” Id. at 507 n.7; see also United States v. Adams, 625
F.3d 371, 380 (7th Cir. 2010) (noting that the “prudent course”
for ends‐of‐justice findings is for the district court to “put its
rationale on the record well before [the defendant] s[eeks] dis‐
missal of the indictment on speedy trial grounds”). Our deci‐
sion in United States v. Rollins, 544 F.3d 820 (7th Cir. 2008), re‐
affirmed that “the district court is not required to make the
ends of justice findings contemporaneously with its continu‐
ance order.” Id. at 830; see also Adams, 625 F.3d at 380 (“The
fact that in one instance the court made that [ends of justice]
finding (and stated the reasons for it) in retrospect rather than
contemporaneously with its order granting the continuance is
immaterial; the Supreme Court has indicated that this is per‐
missible ….”).8
8 Defendants rely on United States v. Janik, 723 F.2d 537 (7th Cir. 1983)
for the proposition that “retroactive continuances” are improper, as the
“continuance itself must be granted before the period sought to be
34 Nos. 21‐2242, 21‐2251 & 21‐2666
To briefly summarize the timeline of the relevant proceed‐
ings in the alleged delay period, the defendants’ filing of their
motion to dismiss automatically tolled the speedy trial clock
as of November 15, 2018, until there had been a hearing and
all necessary submissions were before the court plus thirty
days. See 18 U.S.C. § 3161(h)(1)(D); United States v. Piasecki, 969
F.2d 494, 500 (7th Cir. 1992) (“Once there has been a hearing
and/or all necessary submissions are before the court so that
the court has been deemed to have taken the matter under ad‐
visement, unless such a period is unreasonable, the court gen‐
erally has up to thirty additional days of excludable delay to
decide the motion”). In this case, briefing was concluded on
March 26, 2019. The 30‐day excluded period ran through
April 25, 2019. Defendants count April 25, 2019, through the
next status hearing on October 31, 2019 (where ends of justice
findings were clearly made), as 189 days of non‐excludable
delay.
Although articulating the ends‐of‐justice finding and en‐
tering the continuance at the same time is “undoubtedly the
‘best practice,’ it is not the only permissible practice.” Wasson,
excluded begins to run.” Id. at 545. Not only does this case significantly
pre‐date the Supreme Court’s decision in Zedner, but the highlighted lan‐
guage also addresses a case where the district judge entered no continu‐
ance at all, an issue not present in defendants’ case. We agree that “[a]
district judge cannot wipe out violations of the Speedy Trial Act after they
have occurred by making the findings that would have justified granting
an excludable‐delay continuance before the delay occurred,” Janik, 723
F.2d at 545, but in this case, the district court had granted a continuance
on November 15, 2018, before the period to be excluded began to run. As
the government points out, “although [the district court] cited the wrong
basis for the continuance, the court unquestionably ‘granted’ the continu‐
ance before the excluded period.”
Nos. 21‐2242, 21‐2251 & 21‐2666 35
679 F.3d at 946. “Zedner and its progeny support our interpre‐
tation that a court’s ends‐of‐justice findings need not be artic‐
ulated contemporaneously on the record.” Id.; see United
States v. Hills, 618 F.3d 619, 628 (7th Cir. 2010) (“As mentioned,
§ 3161(h)(7)(A) requires a court excluding time on ends‐of‐
justice grounds to articulate its findings on the record. A court
need not do so contemporaneously with the exclusion, but it
must do so by the time it rules on a defendant’s motion to dis‐
miss.” (citation omitted)).
The district court does not appear to have followed the
“best practice” or the “prudent course” in relying on the
wrong exclusionary hook on November 15, 2018; however,
the court ultimately made on‐the‐record ends‐of‐justice find‐
ings by the time it ruled on the defendants’ motion to dismiss
on July 21, 2020. There is no indication that the court was con‐
tinuing the case on account of a “crowded calendar, a factor
wholly impermissible for consideration in support of an ends
of justice continuance,” Ramirez, 788 F.3d at 735; see 18 U.S.C.
§ 3161(h)(7)(C), and there is no indication that this was an un‐
reasonable continuance given the litigants’ requests and the
complexity of the case, see, e.g., United States v. Lattany, 982
F.2d 866, 881 (3d Cir. 1992) (“We think [open‐ended] continu‐
ances can be reconciled with the Speedy Trial Act provided
they are not permitted to continue for an unreasonably long
period of time.”). Instead, the district court stated that, had
the underlying error been brought to its attention, it “unques‐
tionably” would have given “a full articulation of [its] reason‐
ing,” including that the defendants’ request to defer other
pretrial motions warranted a § 3161(h)(7), ends‐of‐justice ex‐
clusion.
36 Nos. 21‐2242, 21‐2251 & 21‐2666
Finding no legal error in the district court setting forth, on
the record, an ends‐of‐justice rationale for excluding time, we
hold the district court did not abuse its discretion by exclud‐
ing the time needed to resolve defendantsʹ Rule 12(b)(3)(B)(v)
motion in a written opinion.
III. Conclusion
For the reasons explained above, we AFFIRM the judgment
of the district court.