UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-10091

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REGINALD ALLEN JONES a/k/a Reggie,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Texas

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(June 14, 1995)

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Reginald Allen Jones (Jones) appeals his

jury conviction, arguing that the indictment should have been

dismissed for undue delay under the Speedy Trial Act. We reverse

and remand.

Facts and Proceedings Below

On April 8, 1992, a federal grand jury returned an indictment

charging Jo nes and three co-defendants with conspiracy to import

heroin into the United States in violation of 21 U.S.C. §§ 952(a)

& 960. After the indictment was made public on April 14, 1992,1 Amakwe did not explain what discovery he needed to perform

or why exactly he needed extra time to do it; instead he merely

noted that the case was complex and "involv[ed] events [that] . .

. occurred outside the United States."

2 Jones has been continuously incarcerated since his arrest on

March 16, 1992.

3 Amakwe remained a co-defendant until trial, at which time he

entered a plea of guilty.

2 Jones pleaded not guilt y, and trial was set for June 1, 1992.

Before trial, one of Jones's co-defendants, Peter Amakwe (Amakwe),

filed a motion for continuance on May 18, 1992, purportedly to

allow counsel an opportunity to complete unspecified discovery. 1

In his mo tion, Amakwe asked to have the trial continued at least

until July 27, 1992, or "until such time as t he Court determines

counsel will have adequate opportunity to complete discovery and

prepare in this complex case."

The June 1, 1992, trial date passed without a word or ruling

of record from the district court; Amakwe's proposed trial date of

J uly 27, 1992, likewise thus passed. Almost one year later, on

June 21, 1993, still with no ruling of record on the continuance

from the district court, Jones moved to dismiss the indictment for

failure to comply with the Speedy Trial Act. 2 On July 8, 1993, the

court denied the motion, entered an order "memorializing" its

ruling on Amakwe's motion for continuance, and reset the trial for

September 7, 1993. Trial began on September 8, 1993, and the jury

returned a guilty verdict six days later. 3 Jones was sentenced to

264 months in prison and 5 years of supervised release. From the

January 26, 1994, judgment of conviction, Jones now appeals.4 It is irrelevant that Amakwe, rather than Jones, requested

the continuance. Unless or until the co-defendant's case is

severed from the defendant's, "the excludable delay of one

codefendant may be attributed to all defendants." United States

v. Bermea , 30 F.3d 1539, 1567 (5th Cir. 1994), cert. denied , 115

3 Discussion

Jones contends that the d istrict court erred in denying his

motion to dismiss the indictment under the Speedy Trial Act, 18

U.S.C. §§ 3161-3174 (the Act). The Act requires that criminal

defendants be tried "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." I d.

§ 3161(c)(1). If a defendant is not brought to trial within this

period, then the indictment must be dismissed. Id. § 3162(a)(2).

Section 3161(h) of the Act, however, excludes from the calculation

of this seventy-day period certain specified delays, including

"[a]ny period of delay resulting from a continua n ce

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 t aking such action outweigh the best

interest of the public and the defendant in a speedy

trial. No such period of delay . . . shall be excludable

. . . 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." I d. §

3161(h)(8)(A).

The Act also excludes any "delay resulting from any pretrial

motion, from the filing of the motion through the conclusion of the

hearing on, or other prompt dis position of, such motion." I d. §

3161(h)(1)(F). 4 Section 3161(h)(1)(J), moreover, limits to thirtyS.Ct. 1113 (1995).

5 Although there were pre-trial motions in this case, other

than the motion for continuance, which also reduced the total

number of excluded days, the government has conceded that these

other delays would not together "be sufficient to bring the

speedy trial total to under seventy days."

6 At oral argument, the government conceded that there was no

factual basis for the assertion in its brief that Amakwe's motion

was granted the day it was submitted.

4 days any extension "reasonably attributable to any period

. . .

during which any proceeding c oncerning the defendant is actually

under advisement by the court." I d. § 3161(h)(1)(J); see Henderson

v. United States , 106 S.Ct. 1871, 1875-76 (1986).

It is undisputed that the seve nty-day period began on April

14, 1992, the date the indictment was made public, and that the

trial began roughly one year and five months later, on September 8,

1993. This case turns on whether Amakwe's motion for continuance

resulted in the exclusion of sufficient time from this intervening

period, under section 3161(h)(8)(A), to bring Jones's trial within

the Act's seventy-day rule. 5 Relying on section 3161(h)(1)(F),

Jones argues that the motion stopped the clock only from May 18,

1992, until June 1, 1992, the original tr ial date, at which time

the motion became moot because the scheduled trial did not take

place. The government responds that the continuance was granted,

and the trial suspended indefinit ely, the day the motion was

submitted and that, consequently, any and all delay from May 18,

1992, until trial was excludable from t he critical seventy-day

period. 67 In granting a continuance under section 3161(h), a district

court "must consider at least one of the factors specified by the

Act." United States v. Ortega-Mena , 949 F.2d 156, 159 (5th Cir.

1991). Here, the district court cited section 3161(h)(8)(B)(ii),

which allows continuances in complex cases.

5 It is positively unclear what action the district court took,

or when it took it, with respect to Amakwe's motion for

continuance. The record is silent in this regard until July 8,

1993, when, in denying Jones's motion to dismiss, the district

court said, "On May 18, 1992,

. . . Amakwe filed a motion for

continuance. The Court granted the motion and continued the trial

without setting a trial date." The same day, the district court

issued an order "memorializing" its ruling on Amakwe's motion for

continuance. In this order, the court explained that the motion

had been granted "on the ground that the ends of justice outweigh

the best interest of the public and the defenda nt in a speedy

trial." The court gave as its reason for this finding the need to

allow Amakwe's counsel "an opportunity to complete discovery and

prepare in th is complex case." 7 The court's July 8, 1993, order

does not indicate when the court acted on the motion for

continuance or in what form or manner such action was manifested or

communicated to the parties or the clerk's office.

Although the district court stated that it was "memorializing"

an earlier grant of the continuance, from the above it is unknown

when exactly the district court originally granted the motion. It

is reasonable to infer, however, that the motion was granted on or

befor e June 1, 1992, the original trial date, as no trial took

place then, and further, that the continuance then granted was8 During this period, on-the-record activity in Jones's case

was essentially limited to the filing and granting of a November

1992 motion to substitute counsel and then, in early 1993, the

district court's action on a series of pretrial motions, mostly

related to discovery.

9 For the continuance to stop the clock, the district court

must state on the record its reasons for finding that the

interests of justice outweigh the defendant's interest in a

speedy trial. 18 U.S.C. § 3161(h)(8)(A). The government claims

that the district court performed an ends-of-justice analysis

before implicitly granting the motion on May 18, 1992, but simply

failed to enter the analysis in the record at that time.

According to the government, the Act does not require that the

district court's findings be entered contemporaneously with the

grant of the continuance. Jones maintains that this Court's

recent decision in United States v. Blackwell , 12 F.3d 44, 47

(5th Cir. 1994), requires a district court to enter an ends-ofjustice analysis on the record at the same time that it grants

the continuance. Although in Blackwell we suggested as much, the

6 indefinite SQ

although nothing in the July 8, 1993, ord er so

indicates SQ

as there was no resetting of the trial d ate at that

t ime. Even so, the court did not cause the entry of a ruling on

the docket sheet or explain anywhere its reason for the continuance

until its July 8, 1993, order. Indeed, in the year between

Amakwe's motion f or continuance and Jones's motion to dismiss,

there is absolutely nothing in th e record regarding Amakwe's

motion SQ

no indication whatsoever that the district court granted,

postponed, or in any way reacted to it. 8 Nor is there any

indication of record that Amakwe ever asked for additional time

beyond his original request that the trial be continued until at

least July 27, 1992.

We c onclude that, under the rather extreme circumstances of

this particular case, the open-ended continuance silently granted

by the district court constitutes an abuse of the Speedy Trial

Act. 9 Even accepting that the district court considered andlanguage is dicta because the district court in that case, rather

than merely not entering contemporaneous findings on the record,

never entered any findings at all, and it was that failure which

violated the express terms of section 3161(h)(8)(A). Here, in

contrast, the district court did perform an ends-of-justice

analysis, but did so on July 8, 1993, almost a year after the

continuance was implicitly granted.

To resolve this case, we need not turn Blackwell 's dicta

into law. We note, however, that virtually every Circuit has

held that the entry of findings in the record after granting the

continuance is not reversible error so long as the findings were

not actually made after the fact. See United States v. Crawford

, 982 F.2d 199, 204 (6th Cir. 1993) (holding that the "reasons

stated must be the actual reasons that motivated the court at the

time the continuance was granted"); United States v. Vasser , 916

F.2d 624, 627 (11th Cir. 1990) (same), cert. denied , 111 S.Ct.

1688 (1991); United States v. Janik , 723 F.2d 537, 544-45 (7th

Cir. 1983) (same); United States v. Brooks , 697 F.2d 517, 522

(3d Cir. 1982) (not requiring that the reasons be entered on the

record at the same time that they are made), cert. denied , 103

S.Ct. 1526 (1983); United States v. Clifford , 664 F.2d 1090, 1095

(8th Cir. 1981) (same); United States v. Edwards , 627 F.2d 460,

461 (D.C. Cir.) (same), cert. denied , 101 S.Ct. 211 (1980). In

United States v. Williams , 12 F.3d 452, 460 n.37 (5th Cir. 1994),

we stated, citing United States v. Rush , 738 F.2d 497, 507 (1st

Cir. 1984), cert. denied , 105 S.Ct. 1355 (1985), "[a]lthough the

reasons for an 'ends of justice' continuance must be articulated,

they need not be articulated at the time the continuance is

granted." We note, finally, that the Act itself does not

expressly require that the ends-of-justice findings be entered

contemporaneously on the record, just that they be entered on the

record. 18 U.S.C. § 3161(h)(8)(A).

7 granted Amakwe's motion for continuance on or before the original

trial date, it is evident from the record that the duration of the

continuance was unconsidered and left completely unresolved until

Jones's motion to dismiss. In his motion for the continuance,

Amakwe wrote,

"It is hereby requested that my trial be continued until

such time as the Court determines counsel will have

adequate opportunity to complete discovery and prepare in

this complex case. It is requested that this case not be

reset prior to July 27, 1992."8

From the above, it is reasonable to infer that Amakwe needed until

July 27, 1992, to complete some unspecified discovery. Beyond

that, the motion is conclusory and uninf ormative; it fails to

explain what and why discovery remained to be done and, further,

how long it would take.

There is thus nothing in the motion itself from which the

district court co uld have concluded that Amakwe needed or should

have received a continuance longer than the roughly two months he

had specifically requested in his motion. The district court's

July 8, 1993, order gives no indication that the court had

considered an indefinite continuance beyond July 27, 1992, as

serving the ends of justi ce or, if so, why. Nor is there any

ind ication that the district court ever held (or scheduled) a

hearing or otherwise sought or received any more specific

information concerning the appropriate duration of the continuance.

In short, there is nothing in the record to justify a continuance

beyond the July 27, 1992, date proposed in Amakwe's motion, and in

any event no more than that portion of the continuance can

justifiably be excluded from the Act's seventy-day period.

Accordingly, seventy non-excludable days elapsed before trial, and

the indictment should have been dismissed on that basis. C f.

United States v. Crawford

, 982 F.2d 199, 204-05 (6th Cir. 1993)

(dismissing t he indictment where the district court silently

granted an ends-of-justice continuance without specifying or

approximating its length).

We do not mean to suggest, however, that a district court

never has the authority to grant an open-ended continuance, merely10 The Circuits are split over the question whether open-ended

continuances are permissible under the Speedy Trial Act. Whereas

in the First and Third Circuits, for example, open-ended

continuances are permissible so long as they are ultimately

reasonable in length, United States v. Lattany , 982 F.2d 866,

880-83 (3d Cir. 1992), cert. denied , 114 S.Ct. 97 (1995); United

States v. Rush , 738 F.2d 497, 508 (1st Cir. 1984), cert. denied

, 105 S.Ct. 1355 (1985), the Ninth Circuit, and apparently only the

Ninth Circuit, has assumed a stricter stance, requiring the

dismissal of any continuance that is not "specifically limited in

time." See United States v. Jordan , 915 F.2d 563, 565-66 (9th

Cir. 1990).

11 In Rush , for instance, the district court had explicitly

granted an open-ended continuance because a trial of several codefendants was taking place in another jurisdiction. Rush , 738

F.2d at 506. As the reason for the continuance, the pending

trial, was of uncertain duration, so too, necessarily, was the

continuance itself.

9 that such a continuance for any substantial length of time is

extraordinary and must be adequately justified by the circumstances

of the particular case. 10 S ee Lattany

, 982 F.2d at 881-82 (holding

that open-ended continuances are perm issible insofar as they are

reasonable). There will be some situations in which it is

impossible, or at least quite difficult, for the parties or the

court to gauge th e length of an otherwise justified continuance.

As the First Circuit has stated, although

"it is generally preferable to limit a continuance to a

definite period for the sake of clarity and certainty[,]

. . . at the same t ime it is inevitable that in some

cases

. . . a court is forced to order an (h)(8)

continuance without knowing exactly how long the reasons supporting the continuance will remain valid." R ush

, 738

F.2d at 508. 11

In such circumstances, the district court may decide to continue

the trial indefinitely, at least until the defendant or the

government is able to propose a more specific trial date or until10

there exists enough additional information for the district court

to set one.

Nothing in the record of this case, however, establishes the

need for, or even the desirability of , an indefinite continuance

with an ultimate duration anywhere near as long as that here.

Amakwe's own motion implies that he needed the trial continued only

until July 27, 1992, more than a yea r earlier than the ultimate

trial date of September 8, 1993. Indeed, not only does the record

not justify an open-ended continuance, it also reflects that the

indefiniteness and du ration resulted from oversight rather than

deliberation. Given these particular circumstances, we hold that

the indictment should have been dismissed for excessive pre-trial

delay.

We remand the case for the district court to vacate Jones's

conviction and to determine whether the dismissal should be with or

without prejudice under 18 U.S.C. § 3162(a)(2). B lackwell

, 12 F.3d

at 48. Although we now see no reason why the dismissal in this

ca se should not be without prejudice, the district court should

consider this question in the first instance. S ee United States v.

Johnson

, 29 F.3d 940, 945-46 (5th Cir. 1994); United States v.

Peeples , 811 F.2d 849, 850 (5th Cir. 1987).

Conclusion

The judgment of the district court is reversed, and the case

is remanded with instructions to vacate the conviction and dismiss

the indictment, either with or without prejudice.

REVERSED and REMANDED