U.S. v. Napadow

• Decision Date: 23 February 2010
• Docket Number: No. 09-1920.,09-1920.
• Citation: 596 F.3d 398
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael NAPADOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

596 F.3d 398

UNITED STATES of America, Plaintiff-Appellee, v. Michael NAPADOW, Defendant-Appellant.

No. 09-1920.

United States Court of Appeals, Seventh Circuit.

Argued December 4, 2009.

Decided February 23, 2010.

Renai Scherri Rodney, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Paul Camarena, Attorney (argued), Chicago, IL, for Defendant-Appellant.

Before POSNER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, 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 fraudulent 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 violation of 18 U.S.C. § 1341 (Counts Two, Four, Five and 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 conclude 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 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 preparation 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 conference. 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 exclusion 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 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 Government 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 excluded.

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.

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 appearance 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.

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 second. My recollection is that we excluded time for a 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 dismissed 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, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988).

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, 126 S.Ct. 1976, 164 L.Ed.2d 749 (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...