F I L E D

United States Court of Appeals

Tenth Circuit

MAR 4 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

JOHN RORY GONZALES,

Defendant-Appellant.

No. 96-4204

Appeal from United States District Court

for the District of Utah

(D.C. No. 95-CR-230)

Susan L. Foreman, Assistant Federal Public Defender (Michael G. Katz, Federal

Public Defender, with her on the brief), Denver, Colorado, for the appellant.

Gregory C. Diamond, Assistant United States Attorney (Scott M. Matheson, Jr.,

United States Attorney, with him on the brief), Salt Lake City, Utah, for the

appellee.

Before BRORBY, McKAY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.
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Defendant John Rory Gonzales appeals his armed bank robbery conviction,

a violation of 18 U.S.C. §§ 2113(a), (d). On appeal, he contends his rights under

the Speedy Trial Act, 18 U.S.C. § 3161 et seq., were violated when the district

court granted an “ends-of-justice” continuance based upon the prosecutor’s

alleged inability to prepare for suggested trial dates within the speedy trial limits. 

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse and remand.

The purpose of the Speedy Trial Act is two-fold--“to protect a defendant’s

constitutional right to a speedy indictment and trial, and to serve the public

interest in bringing prompt criminal proceedings.” United States v. Saltzman, 984

F.2d 1087, 1090 (10th Cir. 1993). The Act requires that a defendant be tried

within seventy days from the filing date of the indictment or from the date on

which defendant appears before a judicial officer, whichever date is later. See 18

U.S.C. § 3161(c)(1). Certain periods of delay are excluded and do not count

toward the seventy-day limit. See 18 U.S.C. § 3161(h)(1)-(9). In particular, the

Act excludes any period of delay “resulting from a continuance granted by any

judge . . . 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.” 18 U.S.C. § 3161(h)(8)(A).
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To qualify as an excludable “ends-of-justice” continuance, certain

prerequisites must be met. First, the district court shall consider, among others, 

the factors listed in § 3161(h)(8)(B):

(i) Whether the failure to grant such a continuance 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 complex, due to the

number of defendants, the nature of the prosecution, or the existence

of novel questions of fact or law, that it is unreasonable to expect

adequate preparation for pretrial proceedings or for the trial itself

within the time limits established by [the Act].

(iii) Whether, in a case in which arrest precedes indictment,

delay in the filing of the indictment is caused because the arrest

occurs at a time such that it is unreasonable to expect return and

filing of the indictment within the period specified in section

3161(b), or because the facts upon which the grand jury must base its

determination are unusual or complex.

(iv) Whether the failure to grant such a continuance in a case

which, taken as a whole, is not so unusual or 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

defendant or the attorney for the Government the reasonable time

necessary for effective preparation, taking into account the exercise

of due diligence.

After considering these factors, the district court must set 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 a continuance outweigh the best interests of the

public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(8)(A). Although

the district court’s findings “may be entered on the record after the fact, they may

not be made after the fact.” United States v. Doran, 882 F.2d 1511, 1516 (10th
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Cir. 1989). Instead, the balancing must occur contemporaneously with the

granting of the continuance because Congress intended that the decision to grant

an ends-of-justice continuance be prospective, not retroactive. Id.

We review de novo a district court’s application of the legal standards of

the Act, and review the underlying factual findings for clear error. United States

v. Spring, 80 F.3d 1450, 1456 (10th Cir. 1996). We apply an abuse of discretion

standard to a district court’s decision to grant an ends-of-justice continuance

under § 3161(h)(8). United States v. Theron, 782 F.2d 1510, 1513 n.1 (10th Cir.

1986). In conducting our review, we must keep in mind that an ends-of-justice

continuance is “a ‘rarely used tool’ for those cases demanding more flexible

treatment,” Doran, 882 F.2d at 1515, and the record must clearly establish the

district court considered the proper factors at the time such a continuance was

granted. Id. at 1516; see also United States v. Johnson, 120 F.3d 1107, 1111

(10th Cir. 1997); United States v. Carrasquillo, 667 F.2d 382, 387 (3d Cir. 1981)

(concluding continuances under (h)(8)(A) “should be given only in unusual

cases,” such as “antitrust cases, and complicated organized crime conspiracy

cases”).

The armed bank robbery occurred on December 19, 1994. Gonzales was

initially indicted on February 2, 1995, and the speedy trial clock began to run the

following day. He filed a motion for discovery on February 9, 1995, stopping the
1

 Technically, the seventy days would have expired on Sunday, August 11, 1996. 

(continued...)

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clock. On February 14, 1995, prior to any ruling on his motion for discovery, the

government dismissed the indictment without prejudice. Thus, between February

2 and February 14, 1995, approximately six nonexcludable days elapsed. See

United States v. Menzer, 29 F.3d 1223, 1227-28 (7th Cir. 1994) (when dismissal

of original indictment is upon government’s motion, reindictment does not result

in fresh clock); United States v. Hoslett, 998 F.2d 648, 658 (9th Cir. 1993)

(same); United States v. Leone, 823 F.2d 246, 248 (8th Cir. 1987) (same). 

Gonzales was reindicted on November 30, 1995, but did not make his initial

appearance until May 21, 1996. The clock began to run on May 22, 1996, and did

not stop until June 28, 1996, when he filed a motion in limine and a request for

admissions. Although the district court ruled on Gonzales’ request for admissions

on July 2, 1996, it did not decide the motion in limine until July 15, 1996. Thus,

the time between June 28, 1996, and July 15, 1996, was excludable for purposes

of the Act. 

Between February 2, 1995, and July 15, 1996, approximately forty-three

nonexcludable days accrued (six days between February 2 and 14, 1995, and

thirty-seven days between May 22 and June 28, 1996). This left twenty-seven

days and effectively gave the district court until August 12, 1996, to begin the

trial.1

 Because Gonzales’ trial did not actually start until August 26, 1996
1

(...continued)

However, under Fed. R. Crim. P. 45(a), if the last day of the period is a Saturday, Sunday,

or legal holiday, the period continues to run until the end of the next day which is not a

weekend or holiday.

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(approximately fourteen days over the limit), the question is whether there was

sufficient time excludable between July 15 and August 26, 1996, to bring the trial

within the seventy-day speedy trial limit.

On July 15, 1996, the district court held a hearing to establish the trial date. 

Although the court initially suggested August 5, 1996, the prosecutor indicated he

was scheduled to be out of town part of the week of July 29, 1996, and it would

be difficult to prepare for trial on August 5. The court then suggested August 19,

1996, but the prosecutor indicated he was scheduled to be out of town the week of

August 12 and would have trouble preparing for trial on August 19. The court

suggested August 26, 1996, and the prosecutor agreed, but defense counsel

objected on speedy trial grounds. After briefly questioning the prosecutor about

why he would be out of town the week of August 12, the district court asked the

prosecutor about starting the trial on August 5 or 6. The prosecutor indicated he

had three witnesses scheduled to leave town at various times during the week of

July 22. He did not know when they would return, but he told the court it “would

be extremely difficult” to begin trial on August 5 or 6. Based on this information,

the court concluded the ends of justice would be best served by continuing the

trial until August 26, 1996. Accordingly, the court excluded the time from
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August 12 through August 23 for purposes of the Act. Pursuant to the court’s

instructions, the prosecutor prepared a written order setting forth the reasons for

the continuance and the exclusion of time, and the signed order was filed on July

22, 1996. The order stated:

The time period from August 12, 1996, up to and including the

new trial date of August 26, 1996, at 9:00 a.m., is hereby excluded

from any calculation required by that act known as the Speedy Trial

Act, . . . because the interests of justice outweigh the interest of the

public and the defendant in a speedy trial. This is based upon the

finding that counsel for the United States would be denied the

reasonable and necessary time to prepare for trial, taking into account

due diligence, and risks which cause a potential miscarriage of

justice and risk the continuity of counsel for the United States.

Record I, Doc. 36 at 4.

We conclude the district court failed to consider all of the necessary factors

outlined in § 3161(h)(8)(B) prior to granting the continuance. In particular, the

transcript of the July 15 hearing reveals a complete lack of inquiry concerning the

nature and complexity of the case at issue as required under § 3161(h)(8)(B)(ii)

and (iv). Similarly, there was a complete lack of inquiry concerning whether the

prosecutor’s absence justified a continuance on continuity of counsel grounds

under § 3161(h)(8)(B)(iv) or whether the case could be tried adequately by other

government counsel. Although the court did conduct an inquiry into the

prosecutor’s ability to prepare for the trial dates proposed by the court, we are not

satisfied the inquiry was adequate. For example, the prosecutor alleged he would
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be out of town for several days during the week of July 29, but did not explain

why he would be out of town or whether his trip could be rescheduled. Similarly,

although he alleged several witnesses were scheduled to be out of town in late

July, there was no discussion concerning when those witnesses would return and

be available for trial preparation. Finally, there was no discussion concerning

how much time the prosecutor actually needed to prepare for trial and no

discussion of what preparations he had already made. See 18 U.S.C. §

3161(h)(8)(C) (indicating an ends-of-justice continuance cannot be granted

because of “lack of diligent preparation . . . on the part of the attorney for the

Government”); United States v. Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993)

(district court has power to “grant an excludable continuance under § 3161(h)(8)

where the government needs additional time to prepare, so long as the government

has not created that need itself through lack of diligence”). Without this

information, we fail to see how the district court adequately could have

determined whether denial of a continuance would have deprived the prosecutor

of “reasonable time necessary for effective preparation,” 18 U.S.C. §

3161(h)(8)(B)(iv), let alone whether the purported reasons for granting the

continuance outweighed the best interests of the public and Gonzales in a speedy

trial.
2

 At oral argument on appeal, the government asserted the district court also relied

on a separate provision of the Act, § 3161(h)(3)(A), which excludes any period of delay

resulting from the absence or unavailability of an essential witness. The government’s

assertion is not borne out by the record. Although the prosecutor did cite this provision at

the July 15 hearing, the district court itself did not make any findings concerning the

unavailability of witnesses nor rely on this provision in determining Gonzales’ speedy

trial rights. Moreover, the subsequent written order entered by the district court makes no

reference to this provision.

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Even assuming, arguendo, the district court properly considered all of the

required factors, we conclude the court abused its discretion in granting an endsof-justice continuance. A review of the trial transcript reveals this was a

straightforward bank robbery case. The trial lasted three days, including jury

selection. None of the information offered by the prosecutor at the July 15

hearing persuades us he could not have adequately prepared for an August 5 or 6

trial date. Although we have previously held adequate preparation time is a

clearly permissible reason for granting a continuance and tolling the Speedy Trial

Act, Springs, 80 F.3d at 1457, such a reason must be supported by the information

and evidence presented to the district court. Because the information presented at

the July 15 hearing does not meet this burden, we are not persuaded the ends of

justice were served by granting the continuance. As a result, we conclude the

period of time covered by the continuance from the proposed August 5 or 6 trial

date was not properly excludable under the Act.2
3

 We recognize Gonzales filed a “Memorandum in Support of Motion to Dismiss

for Speedy Trial Violation” on August 24, 1996, in which he argued the government

failed to take into account approximately nineteen includable days in making its speedy

trial calculations at the July 15 hearing. The district court did not rule on this argument

until Gonzales’ sentencing hearing when it summarily rejected Gonzales’ argument based

on representations made by the prosecutor. Because this pleading was filed after the Act

had already expired, and because its filing did not result in any delay, we conclude it is

irrelevant for purposes of resolving Gonzales’ speedy trial claim.

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In an attempt to salvage the case, the government argues it is irrelevant

whether the ends-of-justice continuance was proper because Gonzales’ filing of a

motion to dismiss on speedy trial grounds on July 22, 1996, tolled the Act before

it could expire. We disagree. Gonzales filed a one-page “Motion to Dismiss” on

July 22, 1996. Reviewing the contents of that motion, we agree with Gonzales

that it simply served to reduce to writing the objections he raised at the July 15

hearing concerning the propriety of the ends-of-justice continuance. Because the

district court had already resolved the issue against him, the motion was

effectively moot at the time it was filed and, at best, served simply to memorialize

Gonzales’ objections in writing and preserve the issue for appeal. Thus, no

hearing was required and no delay resulted from the filing of that motion. The

case proceeded to trial without further mention of the motion by either the court

or the parties. We therefore conclude, under the plain language of §

3161(h)(1)(F), that no excludable time resulted from the filing of the motion.3

See generally, United States v. Lampley, 127 F.3d 1231, 1244 (10th Cir. 1997)
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(“any delay attributable to the filing and resolution of . . . pretrial motions is

excluded” under (h)(1)(F)).

Having determined Gonzales’ Speedy Trial Act rights were violated, we

conclude the charge against him must be dismissed. See Johnson, 120 F.3d at

1112. In accordance with the general practice of this court, we remand this case

to the district court to assess whether the dismissal should be with or without

prejudice. Id. In making this determination, the district court shall be guided by

the factors outlined in 18 U.S.C. § 3162(a)(2). Id.

REVERSED and REMANDED for further proceedings.