U.S. v. Gallardo
| Decision Date | 11 October 1985 |
| Docket Number | 84-1176,Nos. 84-1167,s. 84-1167 |
| Citation | 773 F.2d 1496 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Jack Leroy GALLARDO, Defendant-Appellant, Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lamond C. Mills, U.S. Atty., Ruth L. Cohen, Asst. U.S. Atty., Las Vegas, Nev., and Patty Merkamp Stemler, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee, cross-appellant.
John Momot, Jr., Las Vegas, Nev., for defendant-appellant, cross-appellee.
Appeal from the United States District Court for the District of Nevada.
Before FLETCHER, BOOCHEVER, and NORRIS, Circuit Judges.
The United States appeals from the district court's dismissal under the Speedy Trial Act (STA), 18 U.S.C. Secs. 3161-3174 (1982), of its indictment charging Jack Leroy Gallardo, Jr., with interference with commerce by threats or violence, 18 U.S.C. Sec. 1951 (1982), and embezzlement from a savings and loan association, 18 U.S.C. Sec. 651 (1982). The district court dismissed Gallardo's indictment based upon violation of the STA's 70-day indictment-to-trial limitation provision, 18 U.S.C. Sec. 3161(c)(1). 1 The government contends that in reaching
its decision, the district court employed an incorrect method of computing excludable delay under the STA. This court has jurisdiction over the government's appeal under 18 U.S.C. Sec. 3731 (1982). We reverse and remand. 2
Gallardo was originally indicted on November 10, 1982 on three counts of interference with commerce by threats or violence and six counts of bank embezzlement. He was arraigned on those charges on November 12, 1982. While those charges were pending, the district court granted six continuances under the STA's "ends of justice" provision, 18 U.S.C. Sec. 3161(h)(8). Section 3161(h)(8) provides that:
The following periods of delay shall be excluded in computing the time within which ... [a criminal] trial must commence:
.... 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 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 continuance outweigh the best interests of the public and the defendant in a speedy trial.
18 U.S.C. Sec. 3161(h)(8).
All of the continuances were requested jointly by both parties, based upon specific reasons relating to their scheduling needs and ability to prepare for trial. All but the second request were initiated and drafted by Gallardo's attorney. The district court judge issued separate, written orders articulating his reasons for granting each continuance, and for finding that the period of each continuance was excludable under section 3161(h)(8)(A). The six "ends of justice" continuances were as follows:
OLD NEW WHO MOTION CONTINUANCE
TRIAL DATE TRIAL DATE ORIGINATED FILED GRANTED
---------- ---------- ---------- -------- -----------
12/28/82 2/15/83 Defendant 12/9/82 12/15/82
2/15/83 4/19/83 Government 1/21/83 1/25/83
4/19/83 6/14/83 Defendant 4/4/83 4/6/83
6/14/83 9/13/83 Defendant 5/26/83 6/2/83
9/13/83 12/6/83 Defendant 8/30/83 10/3/83
12/6/83 3/6/84 Defendant 11/29/83 12/8/83
Gallardo filed a motion to dismiss the charges against him on October 21, 1983. The court granted that motion in part on January 20, 1984, and required the government to make an election of counts and drop at least three counts within ten days.
The government failed to comply with the court's order within the allotted time, however, because it was preparing for trial in another case. According to the government, when it realized it had missed its ten-day deadline, it decided that the "most appropriate" course of action was to file a superseding indictment against Gallardo, which dropped four counts from the preceding indictment, although the district court's order had not required the filing of a new indictment.
On February 22, 1984, the government charged Gallardo in a second superseding indictment with four counts of interference with commerce and one count of embezzlement from a savings and loan association. 3 Gallardo was arraigned on the new indictment on March 2, 1984, and the district court rescheduled trial for April 3, 1984, ostensibly to give Gallardo's counsel 30 days to prepare for trial on the new charges, as required under 18 U.S.C. Sec. 3161(c)(2). 4
On March 16, 1984, Gallardo moved to dismiss the second superseding indictment for violation of the STA's 70-day indictment-to-trial limitation provision, 18 U.S.C. Sec. 3161(c)(1). The district court granted Gallardo's motion and dismissed his indictment without prejudice on May 30, 1984. Gallardo contended that the court's dismissal should be with prejudice, since the government had failed to comply in a timely manner with the court's order requiring an election of counts. However, the district court weighed the factors provided in 18 U.S.C. Sec. 3162(a)(2) for determining whether to dismiss with or without prejudice, and rejected Gallardo's claim.
The government appeals the dismissal of Gallardo's indictment, and Gallardo separately appeals the district court's decision to dismiss without prejudice. Gallardo also contends that the district court's decisions to grant the third, fourth, and fifth "ends of justice" continuances in his case constituted an abuse of discretion, and provide this court with an alternative basis to affirm the dismissal of his indictment.
The parties agree that Gallardo's November 12, 1982 arraignment commenced the running of the STA's 70-day clock in his case. The parties also agree that various pretrial motions tolled the running of the 70-day period for at least 84 days. 5 They The threshold issue in this case is the effect upon the running of the 70-day period of the six "ends of justice" continuances granted by the district court under section 3161(h)(8)(A). 7 The government maintains that such continuances toll the running of the STA's 70-day clock, regardless of how much time is remaining on it: as a result, when an "ends of justice" continuance is granted, the amount of time remaining on the 70-day clock at the end of that continuance is exactly the same as the amount remaining when the continuance began. In contrast, Gallardo espouses the approach recommended by the Judicial Conference Guidelines to the Administration of the Speedy Trial Act of 1974, as amended (1974) (hereinafter "Guidelines "), which were employed by the district court clerk, and which provide that "ends of justice" continuances are "tacked-on" to the end of the 70-day limitation period, and do not stop the running of the 70-day clock until there would otherwise be no time remaining on it.
further agree that although two superseding indictments were issued against Gallardo on March 3, 1983 and February 22, 1984, neither one tolled or caused a restarting of the 70-day clock. 6
Thus, the government maintains that Gallardo's 70-day clock was tolled in December, 1982 with the beginning of the first "ends of justice" continuance, and continued to be tolled until March 6, 1984, at the end of the sixth consecutive continuance. At that point, the government maintains there was still sufficient time remaining on the 70-day clock--37 days--to allow for an April 3, 1984 trial date, as set by the district court. In contrast, Gallardo maintains that under the Guidelines's approach, his 70-day clock was totally unaffected by the first "ends of justice" continuance and all but the last four days of the second continuance, until the 70-day period elapsed on April 15, 1983; at that point, the remaining continuances extended the time for trial, but on March 6, 1984, when the last continuance ended, there was no time left on the 70-day clock. According to Gallardo, March 6, 1984 was the final date he could be brought to trial without violating the STA.
Based primarily upon the STA's language and legislative history, we conclude that "ends of justice" continuances toll the running of the STA's 70-day clock, and conclude as a result that the 70-day period did not elapse in Gallardo's case. We also reject Gallardo's claim that the district court abused its discretion in granting the
third, fourth, and fifth continuances. We therefore reverse the district court's dismissal of Gallardo's indictment. Because of our ruling, we need not address the issues raised in Gallardo's separate appeal.
We review de novo the district court's interpretation of the STA, including the court's methods of computing excludable delay for "ends of justice" continuances. United States v. Frey, 735 F.2d 350, 352 (9th Cir.1984); accord United States v. Henderson, 746 F.2d 619, 622 (9th Cir.1984). We review the district court's factual findings underlying its STA determinations, including its findings that exclusions of certain blocks of time from the 70-day limitation period "served the ends of justice," under the "clear error" standard of review. Henderson, 746 F.2d at 622; Frey, 735 F.2d at 352. We review the district court's decisions granting the third, fourth, and fifth "ends of justice" continuances to determine whether there was an abuse of discretion and whether Gallardo suffered prejudice as a...
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