### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 19, 2003 THOMAS K. KAHN CLERK

* Honorable Richa

rd Mills, United State

s District Judge fo

r the Central Distr

ict of Illinois, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-14182

________________________ D. C. Docket No. 00-00823-CR-1-1

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus JOHN DOYLE DUNN, JR., Defendant-Appe llant.

________________________ Appeal from the United States District Court for the Northern D

istrict of Georgia

_________________________ (September

19, 2003) Before BARKETT and MARCUS, Circuit Ju dges, and MILLS * , District Judge. MARCUS, Circuit Judge:1 For clarity’s sake, we will refer to Kelly employees as “guards” and Atlanta police officers as “officers.” 2 This direct crim

inal appeal stem

s from John Doy

le Dunn, Jr.’ s conviction of one count of being a felon in possessi on of a firearm, in violatio n of 18 U.S.C. § 922(g). On appeal , Dunn argues that t he district court er

red by denyi

ng his motions (1) to s uppres s state ments he made to, a nd physi cal evi dence c ollect ed by, law enforcem

ent officers; (2)

to dismiss the indi

ctment against him based on statutory and con

stitutional speedy

trial violations; and (3) to dismiss the indictment against him based on the unconstitutionality of section 922(g). After thorough review, w

e are persuaded by

none of appellant’ s contentions, and, accordingly, affirm.

I The basic facts de

veloped at a suppressi

on hearing are these . The Housing Authority of the

City of Atlant

a (“AHA”

) is a public entity

charged with the responsibility of

operating Atlanta’ s public housing com munities. Beg

inning on March 15, 1999, AH

A began contractin

g with Kelly S ecurity, Inc . (“Kelly ”) for the provision of secur

ity guard services at these com munities. Ke

lly guards 1 are armed and car

ry badges, and t

hey coordinate t

heir activities wi

th the Atlanta3

Police Department. Notably, the AHA -Kelly contract expressly contemplates that the guards may make arrests. At approximately 12:30 pm on April 19, 2000, three Kelly guards -- Lieutenant Larr

y D. Goodwin

, Sergeant Kwa

ne Martin and Serge

ant Ernest Dixon -- were working

at the Harris Ho

mes housing com

plex when they he

ard a volley of gunshots. There is some discrepancy in the guards’ accounts of exactly what happened next. Goodwin said that upon first hearing the shots the guards moved in the general direction from which the gunfire had come, but before they w ere able to locate the sh

ooter they hear

d a second set of shots.He testified that he drove with Martin a

nd Dixon to the area from which the y thought this second volley had com

e, and encountere

d Dunn approxima

tely 30 seconds to a

minute after this second round of gunfire. Martin, by contrast, said that there was a third round of gunsho ts and that only after th is third volley did th e guards spot Dunn. Martin testified that there was at least a 5 minute interval between this third volley and their encounte r with appellant. At all events, the three Kelly guards soon spotted Dunn putting a loaded SKS assault rifle into the hatchback storage area of his Camaro. The guards drew their weapons and in

structed appellant t

o stop and put his hands up.Appellant complied and wa

s quickly handcuff

ed and frisked. A

lthough he was not placed in4

the guards’ vehicle and was advised that he was not under arrest but rather was being detained pending the arrival of the Atlanta police (who the guards called once Dunn had been se

cured), Goodwin

and Martin both conce

ded that appellant was not free to leave. Within 10-15 minutes, Atlanta police Officer Hall ar rived on the scene and pro mptly placed Dunn in the back seat of his cruiser. Appellant stresses that between the time of his initial detention and Officer Hall’s arrival, two witnesses, one of whom was a neighbor nam ed Skyree who was known to the guards, i

nformed the gua

rds that Dunn was not

responsible for the gunshots. However, appellant says that the guards did not investigate or even consider these witn

esses’ exculpati

ons of him. Nor

, he asserts, did t

he guards check the ground for shell casings. Shortly after placing Dunn in the back seat of his patrol car, Hall notified the Atlanta Police

Department G

un Unit that he neede

d a gun investigator on t

he scene. In response

to this request, a D etective Argano a rrived approxim

ately 10 minutes after

Hall’s call. After being brief ed by Hall and th

e 3 guards as to the nature of the situat

ion, Argano Miran

dized Dunn, and appe

llant admitted t

o owning the assault ri

fle and to being a conv

icted felon. Arg

ano also examine

d the rifle in an effor

t to determine w

hether it had rece

ntly been fired

, although he subsequently could

not recall what thi s examination r evealed. Detec

tive Argano5

confirmed Dunn’s status as a felon by having the Gun Unit conduct a record check, recovere

d the weapon and arr

ested Dunn for being

a felon in possession of a firearm.The total time

that elapsed betwe

en the guards’ init

ial detention of appellant and his arr

est was 20-30 m

inutes. On November 21, 2000, appellant w as indicted on one count

of being a felon in possession of a

firearm in vi

olation of 18 U.S. C. § 922(g). He f irst appeared in court on

February 9, 2 001, when he pled not g uilty. Dunn wa

s held in custody pending his F ebruary 14, 200 1 detention hearing, at which a Magistr

ate Judge ordered him

detained without bond.On February 15, 2001, appellant moved to suppress the statements he made to Detective Argano and the evidence collected at the sc ene, arguing that th ey were obtai

ned as a product of a de facto arrest without prob able cause. On M arch 14, 2001, the M

agistrate Judge held

a hearing on these m

otions, and on June 19,

2001, after undert

aking a searching review of our cas elaw and that of the Supreme Cour

t, he issued a Repor

t and Recommendation that Dunn’s motion s be denied. On the same day, the Magistrate Ju dge certified the case as ready for trial. On July 3, 2001,

appellant filed obj ections to the Report and Recomm

endation and moved for additi

onal time to brie

f his objections, u

ltimately filing his brief on July 17, 2001. On July

18, 2001, Dunn m

oved to dismiss the

indictment base

d on a6

Commerc e Clause challenge to § 922(g), and the go

vernment respo

nded to this motion the following day. Subsequently, on July 27, 2001 appellant moved for a “stipulated benc

h trial,” and on Au

gust 1, 2001 the governm ent filed a response

in which it indicated that it did not oppose the motion, but that it expressly reserved the right to introduce

additional evidence at the bench trial in order to make t

he record complete. Counsel subsequently

exchanged letters r

egarding the nature

of the stipulations and eviden

ce in the case, an

d in early August

, 2001 the governm

ent invited defense couns el to schedule the ben ch trial “at th

e earliest convenie

nce of the Court (and our sc

hedules).” On Fe

bruary 21, 2002,

appellant moved

to dismiss the indictment based on alleged constitutional and statutory speedy trial deprivations. The

government res

ponded to this motion

on March 4, 2002, a

nd on May 2, 2002 the district court denied the motion. In the same order, the court denied Dunn’s m

otion to dismiss the

indictment base

d on the unconstitutionali ty of § 922(g) and adopted the Magistrate Judge’s Report and Recommendation that the suppression m

otion be denied. The

court scheduled tria

l for May 15, 20 02. On that date, a non-

jury trial w

as held before the di strict court. App ellant informed the court that he did not cont est the facts and ev

idence presented dur

ing the hearing on his m

otion to suppress eviden

ce, and the partie s stipulated that the7

essential elem

ents of the offense charged had been est ablished in this case.The district court found D

unn guilty of being a

felon in possession of a

firearm and sentenced him to

32 months impr

isonment, 3 y

ears supervised re

lease and a $100 special assessm

ent. This appeal e

nsued.

II In an appeal from the denial of a suppression motion, we apply a m ixed standard of review

, “reviewi ng the court’s find

ings of fact for cl

ear error and its application of the law to those facts de novo.” United States v. Tinoco , 304 F.3d 1088, 1116 (11 th Cir. 2002) (citing United States v. G il , 204 F.3d 1347, 1350 ( 11 th Cir. 2000)), cert. deni ed sub nom. , Hernandez v. United States , __ U.S. __, 123 S. Ct. 1484, 155 L. Ed. 2d 231 (2003). Similarly , “[w]e review a claim

under the Speedy

Trial Act de novo a

nd review a district court’s factual determinations on excludable time for clear err or.” Unite d Stat es v. Wi lliams , 314 F.3d 552, 556 (1 1 th Cir. 2002) (citation omitted). The same standard applies in the context of appellant’s constitutional speedy trial claim. See United States v. Clark , 83 F.3d 1350, 1352 ( 11 th Cir. 1996) (citat ion omitted). By contrast, we review a ref usal to dismiss an indictment under Fed. R.2 Neither party disputes that the Ke

lly guards are properly

considered state

actors in this case. 8 Crim. P. 48(b) for abuse of disc retion. See United States v. Butler , 792 F.2d 1528, 1534 (11 th Cir. 1986) (citation omitted). Whether Congres s possessed the authori ty under the Com

merce Clause

to enact section 922( g) is a question of l aw that we review de novo. See United States v. Lee , 173 F.3d 809, 810 (1 1 th Cir. 1999) (citation omitted).

A. The Suppression Moti on As a general rule , the Fourth Am endment to the U

nited States Constitu

tion prohibits state actors 2 from mak ing searches or seiz

ures of the person in the absence of probable cause. See United States v. S harpe , 470 U.S. 675, 690, 105 S. Ct. 1568, 1577, 84 L . Ed. 2d 605 (1985) ( noting “‘the ge

neral rule requir

ing probable cause to m

ake Fourth Am

endment “s eizures” reasona ble’” (quoting Dunaway v. New York, 442 U.S. 200, 210, 99 S. Ct. 2248, 2255, 60 L. Ed. 2 d 824 (1979))). As the

Supreme Cour

t recently expl

ained, “[a] seizure of the per son within the mea

ning of the Fourth and F ourteenth Ame ndments occurs w

hen, ‘taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at9

liberty to ignore the police presence and go about his business.’” Kaupp v. Texas , __ U.S. __, 123 S.

Ct. 1843, 1845, 155 L . Ed. 2d 814 (2003) ( citing Florida v. Bostick , 501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991)) (internal punctua tion omitted). However, in Terry v. O

hio , the Court articulated perhaps the best kn own exception to the proba

ble cause requirem

ent, holding that m

inimally int

rusive searches and seizu

res of the person ar

e permissible w

hen a law enforce

ment officer has an obj ectively reasonable suspicion that “ criminal acti

vity may be afoot.” 392 U.S.

1, 30, 88 S. Ct. 1868, 1884, 20 L. E d. 2d 889 (1968); see also United States v. Arvizu , 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2 d 740 (2002) (setting forth the Terry standard); United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690,

695, 66 L. Ed. 2d

621 (1981) (“A

n investigatory st

op must be justified by som

e objective m

anifestation that the

person stopped is, or

is about to be, engaged in criminal act ivity.”). Indeed, the standard that must be satisfied to justify a Terry stop or search is significantly le ss onerous than is a show ing of probable cause

to arrest. As the Supreme Court

explained in United States v. S okolow : The officer [making a Terry stop] . . . m

ust be able to articu

late something mo

re than an “inc

hoate and unparticula

rized suspicion or ‘hunch.’” [ Terry , 392 U.S.] a t 27[, 88 S. Ct. a

t 1883]. The Four

th10

Amendme

nt requires som

e minimal level of objective justification for making the stop. That level of suspicion is considerably less than proof of wrongdoing by

a preponderance of

the evidence. W

e have held that probable ca

use means “

a fair probability

that contraband or evidence of a crime will be found,” Illinois v. Gates , 462 U.S. 213, 238, 103 S. Ct. 2317,

2332, 76 L. Ed. 2 d 527 (1983), and the le vel of suspicion required for a Terry stop is obviously less demanding than for probable cause. 490 U.S. 1, 7 109 S . Ct. 1581, 1585, 1 04 L. Ed. 2d 1 (1989) (internal punctua tion and citations omi

tted); see also United States v. Hensley , 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed. 2d 604 (19 85) (“[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be m ade to investigate tha

t suspicion.”); United States v. H ardy , 855 F.2d 753, 758 (11th Cir. 19 88) (setting forth the standard for a vali

d Terry stop). In this case, Dunn does not contest the sa tisfaction of this sta

ndard, and with good reason. The K

elly guards hear

d either 2 or 3 separ

ate volleys of gun

fire, and within no more than five minutes (and possibly as little as 30 seconds) of the final volley saw appe

llant placing an assa

ult rifle into his trun

k. This plainly constituted grounds for

a reasonable suspic

ion that appellant had committed the crime of discharging a weapon in a public place that was sufficient to justify an investigatory detention under Terry

. See, e.g. , United States v. H endricks , 31911

F.3d 993, 1004 (7 th Cir. 2003) (holding that where an officer saw a loaded handgun for which no permit existed partially hidden underneath a seat in an automobile, he not only had grounds for a Terry stop, but in fact had

probable cause to arrest the car’s so le occupant), petition for cert. filed , No. 02-11129 (May 21, 2003). The more difficult question, and the one on which Dunn focuses, is whether the seizure of his person in this case exceeded the outer boundaries of an invest igator y Terry

stop and became

a de facto arres

t. Specifically

, appellant argues that a de fa

cto arrest occurr

ed because (1) betw

een his initial detent

ion and his formal arr

est, neither the gua

rds nor the officer

s did anything to conf

irm their suspicions that he in fa

ct fired the shots the

guards had heard; an

d (2) his detention was too intrusive to be permissible under Terry , as he was held by the guards at gunpoint, handcuffed, Mirandized and placed in the back seat of a police cruiser prior to being formally arrest ed. See generally Hayes v. Flor ida , 470 U.S. 811, 815-16, 105 S. Ct. 1643, 1646, 84 L. E d. 2d 705 (1985) (“ [A]t some point in the investigative proces s, police procedur es can qualitatively

and quantitatively

be so intrusive with respect to a suspect’s freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments.”) (citations omit

ted); Sharpe , 470 U.S. at 685 , 105 S. Ct. at 157 5 (recognizing that i t12

is possible for a Terry

stop to escalate in dur

ation and/or intensity

so as to metamorp

hose into a full scale

arrest, and spec

ifically noting t

he potentially “difficult line-drawing problem s in distinguishing an inve stigative stop from a de facto arrest”); United States v. Diaz-Lizaraza , 981 F.2d 1216, 1221 ( 11 th Cir. 1993) (“The character of a seizure as arrest or Terry stop depends on the nature and degree of intrusion, not on whether the officer pronounces the detainee ‘under arrest.’” (c

iting Dunaway , 442 U.S. at 212 , 99 S. Ct. at 2256 )); Hardy , 855 F.2d at 758 (considering “whether the investigative detention of [the] appellants was sufficiently limited in scope and duration to remain within the bounds permitted by Terry v. O

hio and not ripen into a full-scale arrest”). If so , Terry’s reasonable articulable suspicion standard is supplanted by the probable cause requirement that attends the making of arre sts, whether of the formal or d e facto variety. See United States v. H

astamorir , 881 F.2d 1551, 1556 ( 11 th Cir. 1 989) (noti ng th at “a de facto arrest r

equir[es] proba

ble cause”); Thomas v. News ome , 821 F.2d 1550, 1554 (11 th Cir. 1987) (same). If Dunn was subjected to a de facto arrest and that arrest was not supported by probable caus e, in the absence of “an act of fr

ee will [suffici

ent] to purge the primary t aint of the unlawful

invasion,” any s

tatements appe

llant made and a

ny evidence gathered as a result of the uncon stitutional seiz ure must be suppressed.13

See Kaupp , __ U.S. at __, 123 S. Ct. at 1847 (

“Since Kaupp was arrested bef ore he was questi oned, and b ecause the state does not even cl aim that the s heriff’s department had probable cause to detain him at that point, well-established precedent requires suppression of the confession unless that confession was ‘an act of free wi ll [suffic ient] to pu rge the pri mary taint of th e unlawful invasion .’” (quoting Wong Sun v. United States , 371 U.S. 471, 486, 83 S. Ct. 4 07, 416-17, 9 L. Ed. 2d 441 (1963))). In this case, we find it unnecessary to engage in a detail

ed analysis of whether Dunn’s detention was permissible under Terry . Even assumi ng the guards and/or police in this case effec ted a de facto arr

est that required pr

obable cause, they pl

ainly had probabl

e cause to arrest appellant for discha rging a weapon in public. As we ha

ve explained: “For probable cause to exist, . . . an arrest m

ust be objectively r

easonable based on the

totality of the circumstances.” Lee[ v. Ferraro ], 284 F.3d [1188, ] 1195 [(11 th Cir. 2002)]. “

This standard is m

et when the facts and circumstan

ces within the offi

cer's knowledge,

of which he or she has r

easonably trustw

orthy inform

ation, would cause a prude

nt person to believe,

under the circumstance s shown, that the susp ect has comm itted, is committing, or is about to commit an offense. ” Rankin v. Evans , 133 F.3d 1425, 1435 ( 11 th Cir. 1998) (internal quotation marks o

mitted). “ Although probable ca

use requires more than suspicion, it does not require convincing proof, and need not reach the [same] standard14 of conclusiveness and probability as the facts necessary to support a conviction.” Lee , 284 F.3d at 1195 (internal quotation marks a

nd citations omitt

ed) (alteration in original). Wood v. Kesler , 323 F.3d 872, 878 (1 1 th Cir. 2003); see also United States v. Gordon , 231 F.3d 750, 758 (1 1 th Cir. 2000) (“‘Probable cause to arrest exists when law enforcem

ent officials have

facts and circum

stances within their

knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime.’ ” (quoting United States v. Gonzalez , 969 F.2d 999, 1002 (11 th Cir. 1992))). In this case, the go

vernment has co

nceded that neither

the guards nor the officers had probable cause to believe that Dunn was a felon in possession of a firearm pri

or to his informi

ng them of his sta

tus as a felon. How

ever, it is equally evident that they

did have probable ca

use to believe that he

had discharged a firearm in public, in violation of Ga. Code § 16-11-103 (“A person is guilty of a misdemea

nor when, without l

egal justificati

on, he discharges a

gun or pistol on or within 50 yards of

a public highway

or street.”) an

d Atlanta City Code § 106-301 (“Shooting any

firearms in t

he city, unless

in a licensed shooting g

allery or by permission of the coun cil on military parades, is pro hibited.”). See Latimer v. State , 420 S.E. 2d 91, 93 (Ga. Ct. App. 1992) (holding that the arresting officers15

had probable cause t

o believe that the def

endant had violated se

ction 16-11-103 where they ha

d received com

plaints of gunshots, lou

d music being play

ed and a chainsaw being oper

ated at an apartm

ent complex and,

after being invited into the defendant’s apar

tment, saw a

firearm in pl

ain view); see also United States v. Arcobasso , 882 F.2d 1304, 1306 (8 th Cir. 1989) (holding t hat there was proba

ble cause to arrest the

defendant for know

ingly shooting into a dwelling where the officer responded to a report of gunshots and saw the defendant “dry-firing” a gun); Daniels v. Downi

ng , No. Civ.01-1673 (D. Minn. Jan. 30, 2003) (holding that there was pr obable cau se to arrest an indivi dual for vi olating M inneapol is’s ordinance prohibiting the taking of a substan tial step toward fi

ring a weapon where the individua

l was seen pointing w

hat turned out to be a B B gun at a house); United States v. S cott , 220 F. Supp. 2d 426, 429 (E.D. Pa.2002) (holding that probable cause to arrest the defendant existed where an undercover officer witnessed shots fire

d from a vehicl

e, was told by a

n informant tha

t the defendant had exited the vehicl

e and then saw the defendant discard a w eapon); Bell v. Dawson , 144 F. Supp. 2d 454, 460 (W.D.N.C. 2001) (holding that there was probable cause to arrest the plaintiff for “discharg[ing] a firearm in violation of a county ordinance” where t he officer responded to a call of “shots fired,” two firearms were in plain view at the premises[] and the Plaintiff admitted that he had16

fired the shotgun”); United States v. A nderson , 924 F. Supp. 286, 289 (D.D.C. 1996) (“Officer Thomas, responding to a radio call regarding gunshots in the area, as well as hearing

rapid gunfire him

self, observed the

defendant driving dow

n the street with no headlights. Upon seeing . . . Thomas driving in a marked police cruiser, the def

endant abandoned his ca

r in the street, le

ft the engine running,

and he fled from the scene. Based on these facts, the Court finds that the MPD had probable cause to p ursue and arrest the d efendant.”). In this case, afte

r hearing either tw

o or three volley

s of gunfire and subsequently moving in the direction from which they believed the shots had come, the guar

ds saw Dunn placing a

n SKS assault rif

le into the hatchback

of his Camaro. Pla

inly, a reason

able person could have

concluded that appell

ant had just fired his weapon.This conclusion is not a ltered by the fa

ct that no shell casin

gs were located in the immediate vicinity, as the guards did not know exactly where the shots had been fir

ed from. Mor

eover, as muc

h as five minute s may have passed between the

last shot and the guard

s’ encounter wit

h Dunn, and as such it would have been rea

sonable to believe tha

t appellant fired th

em somew

here else and then walked to his

car -- indeed, t

his was the overwhe

lmingly like

ly scenario from the guard

s’ perspective.We also note that the uncorroborated accounts of witnesses who declin ed to remain at the scene did not vitiate this p robable cause.17

Because the guards and/or officers had probable cause to arrest Dunn, there was no basis for suppr

essing the rifle or t

he statements a

ppellant made t

o Detective Arga

no, and the district court did not err in de nying the suppressi

on motion.

B. The Sp eedy Tr ial Cl aims 1. The Speedy T

rial Act Claim Under the Speedy

Trial Act: In any case in w

hich a plea of not guilt

y is entered, t

he trial of a defenda

nt charged in an infor

mation or indictment wit

h the commi ssion of an offense sh all commence

within seventy da

ys from the

filing date (and making public) of

the informatio

n or indictment,

or from the date the defendant has appeared before a judicial officer of the cou

rt in which such char

ge is pending, whichever date la

st occurs. 18 U.S.C. § 3161(c)(1). However, the Act also provides for the exclusion of certain specified periods of time

from the speed

y trial calcul

ation. Of partic

ular relevance in

this case are sections

3161(h)(1)(F) and

(J), which exclu

de from the sev

enty day per

iod “delay re sulting from any pretrial moti

on, from the f

iling of the motio

n through the conclusion of the hear

ing on, or other prom

pt disposition of, such m

otion,” 1818

U.S.C. § 3161(h

)(1)(F), and “

delay reasonably attributable to any period, n

ot to exceed thirty d

ays, during whi

ch any proceedi

ng concerning the def

endant is actually under advisement b y the court.” 18 U.S.C. § 3161(h )(1)(J). We explained the interaction of these provisions in United States v. Davenport : For pretrial motions tha t do not require heari ngs, §

3161[(h)](1)(F

) excludes the tim

e required for “

prompt disposition” of the m

otion. The length of

the exclusion depends upon when the court takes the motion “under advisement” for purposes of § 3161(h)(1)(J). If the court has all the information necessary to rule on the motion at the time the motion is filed, the court imm ediately has the motion under a

dvisement under § 3161(h)(1)(J) and thirty days may be excluded from the speedy trial clock due to the motion.The court ma y establish a per

iod of time after the motion is filed, however, within which parties may

submit mate

rials relating to the

motion. The motion is not under

advisement by

the court during this period of time,

which is automa

tically exclude

d from the speedy trial cl

ock and is not subject

to a reasonableness requirement. Once the period for filing additional materials expires, the court takes the motion under advisement for purposes of § 3161(h)(1)(J) and no more than thirty additi

onal days ma

y be excluded fr

om the speedy trial cl

ock. For motions that require hearings, §3161(h)(1)(F) excludes all tim

e between the fili

ng of the motion an

d the conclusion o f the hearing at which i t is addressed. This entire period is excluded from the speedy trial clock and is not subject to r

eview regarding it

s reasonableness.19 Once the hearing is concluded, the motion is treated exactly like a motion for which no hearing is required. If the court has all m

aterials necessa

ry to rule on the motion, the cour

t is deemed to ha

ve taken the moti

on under adviseme

nt immedia

tely following t

he hearing and § 3161(h)(1)(J) permits no more than thirty additional days to be excluded. 935 F.2d 1223, 1228 (11 th Cir. 1991) (citing Henderson v. United States , 476 U.S. 321, 327-28, 106 S. Ct. 1871, 1876-77, 90 L. Ed. 2d 299 (1986)). In this case, Dunn was indicted on November 21, 2000 and he first appeared before a Magistra

te Judge at his arra

ignment on Febru

ary 9, 2001. A

lthough this initial appearance

typically w

ould have started the

speedy trial cl

ock running, the government m

oved on the same d

ay for a pretr

ial detention order,

which tolled the speedy trial pe

riod. A hearing on this motion was s cheduled for Febru ary 14, 2002, and at this proce

eding Dunn was order

ed detained pending tr

ial. The following day, appellant filed his pretrial suppression motion and thereby tolled the speedy tria

l period that otherw

ise would have began running on February 15, 2001. On March 14,

2001, a hearing on thi s motion was hel d before the Magistrate Judge, and the parties subse quently submi

tted written brief

s on the Fourth Amendm

ent issues. The Ma

gistrate Judge issued a Report and Recommendation on June 19, 2001, and on the same day certified the ca se as ready for trial. At this point, the district court took the suppression motion “under20

advisement” fo

r Speedy Tri

al purposes and the spe

edy trial period was tolled for 30 days under § 3161(

h)(1)(J). On Jul

y 3, 2001 (during t

his 30 day period) , Dunn requested more

time to file his

objections to the Re

port and Recomm

endation, thus tolling the running of the 30 days. He ult

imately f iled his objections on

July 17, 2001, and the followi

ng day appellant m

oved to dismiss the

indictment on the ground that § 922(g) exceeded the outer bounds of Congress’s pow

er to regulate interstat e commerce. On Jul y 20, 2001, th is motion an d the gove rnment’s response, along with appellant’s suppression motion, were submitted to the district court. According

ly, under sect

ion 3161(h)(1)(J),

30 days were e

xcludable from this point, while t hese motions were under th e district court’s adv isement. However, on July 27, 2001 (again, during the ensuing 30 day period), appellant filed a m

otion for a “stip

ulated bench trial, ” i.e., a m otion seeking leave of court to hold a bench trial based on Dunn’s stipulations as to each element of a § 922(g) violation. O

n August 1, 2001 the gove rnment responde

d to this request, saying that it did not oppose the motion. However, the government also said that it expressly re served the right to int roduce additional evi

dence at the bench tr

ial in order to make the record complete. Following the government’s agreement to the bench trial, nothing happened in the case until Feb

ruary 21, 2002,

when Dunn move

d to dismiss the indi

ctment3 As indicated, supra , the governmen t responded to this m

otion on March 4, 20

02. Even if we exclude from the speedy trial calculation the 12 day s between the filing of the motion and the government’s response, as well the ensuing 30 days under § 3161(h)(1)(J), there remains 7 and 1⁄2 months of time the excludability of which depends on the need for a hearing on Dunn’s motion for a stipulated bench trial. 21 under the Speedy

Trial Act. 3 The governme nt asserts, howeve

r, that its reservations about the evidence to be presented at the stipulated bench trial created an issue on which an e

videntiary hear

ing needed to be held,

and that this hearing was not conducted until the time of trial itself. Accordingly, it contends, the entire time between the filing of its response to Dunn’s motion for a stipulated bench trial and the trial was excludable under 1 8 U.S.C. § 3161(h)(1)(F). See Davenport , 935 F.2d at 1228 (“ § 3161(h)(1)(F) ex cludes all time

between the filing

of the motion and the con

clusion of the hearin

g at which it is addre ssed”); United States v. Garcia , 778 F.2d 1558, 1562 ( 11 th Cir. 1986) (holding, in the context of a James motion, that the

entire time be

tween the filing of

the motion and the

hearing on that motion, which was conducted at trial, was excludable under the Speedy Trial Act). The district court

agreed, reje

cting appellant’s Speedy Trial Act claim by reasoning that “[b]ecause there are issues of contention as to the relevant evidence regarding Defendant’s guilt, and his claims of acceptance of responsibility, an evidentiary hea

ring is required. B ecause a hearing i s required, the tim e from the22

filing of the bench trial motion to the dis position of such motion is excludable. Therefore, no violatio n of the Speedy Trial Act has oc curred.” Appellant, by contrast, argues that no hearing on the motion for a stipulated bench trial was requir ed, as the government had c onsented to such a proceeding. Instead, he conten

ds, the district cour

t took the motion “

under adviseme

nt” on August 1, 2001, and th

at the next 30 days

were excludable under section 3161(h)(1)(J). A

ccordingly, he

says, the spee

dy trial clock be

gan running on August 31, 2001 and expi red on Novembe

r 9, 2001. This wa

s nearly 2 and 1⁄2 months prior to the

filing of his moti

on to dismiss on spee

dy trial grounds a

nd over 6 months prior to the stipulated bench trial in this case. He says that the trial court’s post hoc det

ermination that

a hearing was nec essary to resol ve the stipulated bench tria

l motion was “simply a ‘ cover’ for its f ailure to allow [appellant] a fair and speedy resolution of his case.” The issue on which a

ppellant’s Speedy

Trial Act claim

turns is whether the district court corr

ectly concluded

that an evidentiary

hearing was requir

ed on the stipulated bench tria

l motion. If so , then all of the tim e between the m

otion and the hearing is exclu dable, regardless of i ts reasonableness

. See Davenport , 935 F.2d at 1228. If no

t, however, the

n the speedy tria

l period began running o

n August 31, 2001 and expi red months befor

e Dunn’s trial.As the First Circ uit said4 Notably, the courts of appeals typica lly have afforded a liberal definition to the term “hearing,” as it is used in § 3161(h)(1)(F). See United States v. Gr osz , 76 F.3d 1318, 1324-25 (5 th Cir. 1996) (saying that a hearing occurs whe never the district judge discusses the merits of a motion with counsel for the party against whom the ruling on the motion is ultimately r endered); Tannehill , 49 F.3d at 1053 (“[I]t is clear that the term includes a situation in which the district court hears argument of counsel and considers it prior to making its ruling . . . .”); United States v. Morales-Rivera , 203 F. Supp. 2d 92, 101 (D.P.R. 2002) (“Because the March 4, 2002 proceedings included just this sort of brief but substantive ‘give-and-take among counsel and the court,’ they were a hearing for the purposes of the Speedy Trial Act.”).

23 in a case featuring a similar argument, “ [the appellant] first contends that the court erred in determining that a hearing was required for his motions . . . . Such an

error would be sig nific ant, b ecaus e in co ntras t to t he po tenti ally u nreas onab le time that is excluded from

[Speedy Tri

al Act] calcul

ations when a heari

ng is required, only 30 days may be excluded when a hearing is not required.” United States v. Salimonu , 182 F.3d 63, 68 (1 stCir. 1999). Although there is not a

great deal of case

law on the subject

, appellate court

s generally have

been reluctant to que stion the judgme nt of a district cour

t that a hearing 4 is required. The reasons for conduct

ing a hearing on a m

otion typically are fact-intensive, and accordingly are uniquely within the purview of the district court. If a m

ovant requests a hea

ring, this may

suffice to establis

h the necessity of conducting such a proceeding. See Salimonu , 182 F.3d at 68 (“ Because Salim

onu requested a hearing in this case, we properly can assume that such a hearing was required for sect

ion 3161(h)(1)(F) p

urposes.”); accord United States v. T annehill ,24

49 F.3d 1049, 1052 n.4 (5 th Cir. 1995). Sim ilarly, a hea

ring may be

said to be required if the motion in question is of a type that typically would not be resolved in the absence of a hear ing. See Salimonu , 182 F.3d at 68; see also Grosz , 76 F.3d at 1325 & n.7 (holding th at a hearing is “

required” as long as

it is not held simpl

y “to avoid the oper

ation of the Speedy

Trial Act”); Morales-Rivera , 203 F. Supp. 2d at 101-02 (summ

arizing the existent

caselaw on when a

hearing is “re

quired” under § 3161(h)(1)(F)). In this case, the district court did not err in concluding that a hearing was “required,” and that Dunn’s Sp eedy Trial Act motion was due to be d enied. Indeed, there are several important reasons why it is appropriate for a district court to conduct a hearing on a defendant’s stip ulated bench trial moti on. First, a motion for a stip

ulated bench trial i s one implicating the forfeiture of

basic rights of the defendant. Most obviously, it involves the waiver of the Sixth Am

endment right to a jury

trial. Moreover

, because a stipula

ted bench trial m

ay be tantam

ount to a guilty plea,

it also likely ent

ails waiving the def

endant’s Sixth Am

endment rights to confront and cross-examine the government’ s witnesses and to ca ll witnesses on his behal

f. Although distric

t courts are not req

uired to conduct an in personam exam

ination of the defend

ant to ensure that the se waivers are kn owing and voluntary, see Cabberiza v. Moore , 217 F.3d 1329, 1333- 34 (11 th Cir. 2000)5 Although the record contained a written agreement to the stipulated bench trial filed on

behalf of Dunn, th

ere was no indica

tion that Dunn had pe

rsonally ag

reed to this forma

t. 25 (citing United States v. Tobias , 662 F.2d 381, 387 (5 th Cir. Unit B 1981)) , such a personal evaluation m

ay be a valuable

prophylactic m

easure. Moreove

r, in this case it was not altogether clear from the cold record whether appellant (as opposed to defense counsel)

previously had w

aived in writing his r

ight to a jury tr

ial. 5 Second, in this case

the government e

xpressly reser

ved the right to introduce additional evidence at the bench trial in order to make the record complete, obse

rving that it opposed lim

iting the evidential f

oundation for the bench trial to the stipulations alone. As such, a hearing would have provided an opportunity for a

party to supplem

ent the record, f

or the district cour

t to evaluate any such additiona

l evidence and for t

he court to determ

ine whether to exer

cise its discretion to perm

it a non-jury t

rial. Indeed, di strict courts are under no obligation to conduct bench trials in criminal cases at all. This is so even in cases where the defenda

nt and the government both ag ree to such a format. See Fed. R. Crim. P. 23(

a) (“Cases r

equired to be tried by

jury shall be so tried unless the defendant waives a

jury trial in

writing with the approval of the courtand the consent of the governm

ent.”) (emp

hasis added). The

district court did not err in holding a hearing to ensure that its ruling on appellant’s stipulated bench trial26

motion would be fully informed, i.e., w ould be made only after the parties clarified the nature and extent of the proofs that would be offered at the requested proceeding. In short, t he distri ct court pr operly deter mined that a h earing on a ppellant ’s stipulated bench trial motion was “required” within the meaning of § 3161(h)(1)(F). Accordingly, the time betw

een Dunn’s filing

of this motion and the comme

ncement of his t

rial, at which ti

me the hearing

was conducted, is excludable from

the speedy tria

l calculus, and his S

peedy Trial A

ct claim is unpersuasive. 2. Appellant’s Sixt

h Amendme

nt Claim The Supreme

Court has identifie

d four basic factor

s that courts should consider in determ

ining whether a def

endant has been depri

ved of his constitutional right to a speedy trial: (1) the length of the delay; (2) the reasons for the delay; (3) t

he defendant’s a

ssertion of the right;

and (4) the preju

dice to the defendant. See Barker v. Wing o , 407 U.S. 514, 530-32, 92 S. Ct. 2 182, 2192-93, 33 L. Ed. 2d 101 (19 72). As we have n oted, the Court expl

ained in Barker

that “[t]he fir st factor serves a

triggering function;

unless some ‘ presumptively prejudicial’ p eriod of delay occurred, we need not conduct the rem ainder of the analysis.” United States v. Register , 182 F.3d 820, 827 (1 1 th Cir. 1999) (citing27

Barker , 407 U.S. at 530, 92 S. Ct. at 21 92). Specifically, the delay with which we are concerned is that b etween the date of the in dictment and the trial da te. See United States v. Schlei , 122 F.3d 944, 987 (1 1 th Cir. 1997). A delay is considered presumptively prejudicial as it approaches one year. See Doggett v. United States , 505 U.S. 647, 651- 52 & n.1, 112 S. Ct. 2686, 2690-91 & n.1, 120 L. Ed. 2d 520 (1992); Schlei , 122 F.3d at 987 (ci ting Davenport , 935 F.2d at 1239). In this case, near

ly 18 months el

apsed between the N

ovember 21, 2000 indictment and the May 15, 20 02 trial. This is presu mptively prejudicial. See United States v. Clark , 83 F.3d 1350, 1352 ( 11 th Cir. 1996) (17 m onths); United States v. Ashford , 924 F.2d 1416, 1421 (7 th Cir. 1991) (18 m onths); Millard v. Lynaugh , 810 F.2d 1403, 1406 (5 th Cir. 1987) (18 m onths) . Accordingly, we proceed to consider the remaining f actors. In doing so,

however, we ar

e mindful that “‘[i] n this circuit, a defendant generally must show actua

l prejudice unless

the first three factors . . . all weigh heavily against the government.’ ” Register , 182 F.3d at 827 (quoting Davenport , 935 F.2d at 1239).Here, there is no indication that the prosecution was any more responsible than the defense for the delay between the filing of the motion for a stipulated bench tr

ial and the disposition of that motion 9 m

onths later. Indee

d, in its denial of D

unn’s motion to di smiss the indictment on Six

th Amendm

ent speedy tria

l grounds, the distric

t court noted the28

government’s argument that the delay in this case was attributable to the “ unusual stipulated bench tria

l motion,” the S eptember 11 th tragedy and t he court’s scheduling difficulti

es due to illness, and

concluded that “

matters outside

the control of the parti

es resulted in the de

lay.” Accor

dingly, the seco

nd Barker factor does not weigh heavily

against the governm

ent. Nor, despite the f

act that appellant m

oved to dismiss the

indictment on constitutional and statutory speedy trial grounds, does it seem that Dunn was especially vigilant in asserting his speedy trial right. As the district court recognized, he waited over 12 months following his indictment (and over 2 months following the date on which he says the speedy trial period expired) before raisin g his sp eedy tri al clai m. None of his moti ons pri or to th at file d in Feb ruary, 2002 raised the is sue. See Register , 182 F.3d at 828 (hol ding that where the defendant asserted his speedy trial right on 2 separate occasions, and on several occasions moved f

or continuances, w

e could not say tha

t the third Barker

factor weighed heavily agains t the government). Because the first three Barker factors do not unifor

mly weigh h

eavily against the governm

ent, appellant m

ust demonstrate

actual prejudice , which he may do in one

of three way

s: “(1) oppress

ive pretrial incar

ceration, (2) an

xiety and concern of the a

ccused, and (3) pos sibility that the a ccused’s defense

will be29

impaired.” Clark , 83 F.3d at 1354 (ci ting Doggett , 505 U.S. at 654, 112 S. Ct. at 2692). Of these, the most seri ous concern is the t hird. See Barker , 407 U.S. at 532, 92 S. Ct. at 2 193. Although appella nt says that he spe

nt an excessive am

ount of time in a pre

trial detention fac

ility, he has not

demonstrated i

n any way th

at the conditions under whic

h he was held or the l

ength of his confinem

ent rendered the delay a constitut

ional violation. Mor

eover and most im

portantly, appe

llant has not shown -- and could not show -- that the del ay prejudice

d his defense at all b ecause he had no defense, as h e had stipulated to each element of the § 922(g ) offense. Accordingly, he has not demonstrated actual prejudice, and his constitutional speedy trial cl

aim is unme

ritorious. Finally, Fed. R. Crim. P.48(b)(3) provides that “[t]he court may dism iss an indictment, inf

ormation, or c

omplaint if unnecessary delay occurs in . . . br

inging a defendant to trial.We have held that “[t]he rul e thus vests much d

iscretion in the trial court, and di smissal is m andatory only

if the defendant’ s constitutional rights have been violated.” United States v. Butler , 792 F.2d 1528, 1533 ( 11 th Cir. 1986). In this case,

we already ha

ve concluded that Dun

n’s Sixth Am

endment rights were not viola

ted, and accordingl

y the district court was not obligate d to grant his motion f

or dismissal unde

r Rule 48(b). Sim

ply stated, the

re is no basis30

for concluding that the

district court abuse

d its discretion in refusing to grant appellant’s motion ins ofar as it relied on th is Rule.

C. The Validity of 18 U.S.C. § 922(g) as an Exercise of Congress’s Com merce Power

Dunn concedes that t

here is binding casel

aw in this circuit f

oreclosing his Commerc e Clause argum ent, and that he is r

aising this claim

only for the purpose of pursuing it in the con

text of en banc revi

ew or in a petition f

or a writ of certiorari. His assessment o f our law is correct. See United States v. S cott , 263 F.3d 1270, 1274 (11 th Cir. 2001) (“Neither Morrison nor Jones modifies our decision in McAllister , upholding the felon-in-possession-of-a- firearm sta tute, 18 U.S.C. § 922(g) , under Congress’ Commerce Clause power. ” (citing United States v. McAllister , 77 F.3d 387, 390 (11 th Cir. 1996))) (other cit ations omitted), cert. denied534 U.S. 1166, 122 S. Ct. 1182, 152 L . Ed. 2d 124 (2002).This conclusion is consistent with those reached by other cir cuits. See United States v. Stuckey , 255 F.3d 528, 530 (8 th Cir.), cert. denied , 534 U.S. 1011, 122 S. Ct. 49 8, 151 L. Ed. 2d 409 (2001); United States v. S antiago , 238 F.3d 213, 216-17 (2d Cir. 2001); United States v. Dorris , 236 F.3d 582, 585-8 6 (10 th Cir. 2000); United31

States v. Napier , 233 F.3d 394, 399-402 (6 th Cir. 2000); United States v. W esela , 223 F.3d 656, 659-60 (7 th Cir. 2000). In short, we find none of appellant’s claims persu asive, and, according ly, we affir m. AFFIRMED.32

BARKETT, Circuit Judge, conc urring in part and diss enting in part: I agree with the m

ajority that w

e need not decide wh

ether Dunn’s det

ention was permissible under Terry , since there wa s probable cause to a

rrest Dunn for discharging a weapon in public. Therefore, the distric t court did not err in d

enying Dunn’s motion to suppress. I also a gree that Dunn’s

Commerce Clause argum entlacks merit. However, I believe that the trial court erred in concluding that a pretrial evidentiary

hearing was requir

ed within the me

aning of § 3161(h)(1)(

F) to resolve issues of contention regarding Dunn’s guilt under § 922(g) and acceptance of responsibility

under U.S.S. G. § 3E1.1. Be cause these were

the specific reasons given by the distri

ct court for having the heari ng, yet the record shows that these

reasons were not su

pported by the ac

tual facts of this ca

se, I believe the j udge erred in denying

Dunn’s motion

to dismiss on speed

y trial grounds. Dunn stipulated to each element necessary to convict him of violating § 922(g), namel

y, that “1 ) he possessed the rif le as alleged in the i

ndictment; 2) the rifle was manufactured outside of the State of Georgia, and 3) he is a convicted felon,” when he filed his motion for a stipulated ben ch trial on July 27, 200 1. R1- 31, at 2. Dunn fur

ther stipulated that “[a]side f rom the Fourth A

mendment i ssue and the Commerce Clause issue, there are no disputed issues in this case.” Id. at 3.33

On August 1, 2001, th

e government re sponded by stating th at it did not oppose Dunn’s motion but “reserve[d] the right to present additional, albeit brief, evidence during a Be

nch Trial in order to make the record com

plete .” R1-32 (emphasis suppli

ed). The governm

ent also indicated tha

t it “contest[e

d] the issue of Defendant’s

‘acceptance of

responsibility, ’ and reserve[d] the right to pre sent its evidence and leg al authority on [that] iss ue . . . at Defendant’s sentencing .” Id. (emphasis supplied). No further action

was taken in this ca

se until Dunn filed his

motion to dismiss for pre

trial delay on F ebruary 21, 200 2–a period of alm

ost six months, well beyond the 7 0-day limit imposed by th

e Speedy Tria

l Act. Therea

fter, the government attempted to justify this delay on the grounds that there were “ issues of contention” betw

een the parties as t

o the evidence nece ssary to establi sh Dunn’s “guilt

or innocence” and “

to counter any c

laim of ‘acceptance of responsibility’” that r equired a pre-trial evi dentiary hearing. See R1-34, at 1-2. Relying on the gove

rnment’s re

presentation, the d

istrict court acce

pted this justification, holding that “beca use there [were

] issues of content

ion as to the relevant evidence

regarding Defend

ant’s guilt, and hi s claims of acceptance of responsibility,

an evidentiary

hearing [was] required.” R1-35 , at 4.34

However, the record indicates that there were no issues of contention a s to the relevant eviden

ce regarding Dunn’ s guilt under § 922(g) that required an evidentiary hea

ring. In an August 6,

2001, letter that is

attached as an exhib

it to the govern ment’s respon se to Dunn’s motion to di smiss for pre trial dela y, Dunn’s attorney invited

the Assistant U.S . Attorney ha ndling Dunn’s case

to draft a proposed stipul ation regarding each element of § 922(g). See R1-34, Ex. A. She also stated: [I]n your re sponse to Mr. Dunn’ s motion [for a stipulated bench tria l], you suggest that ther e is additional evi dence that you would lik e to put up. As Mr. Dunn intends to s tipulate to all th ree essential elements of t he offense, I am not sure what other evid ence would be relevant to his guilt of th e charge. However, assum

ing that the evidence

is accurate and co

rrect, Mr. D

unn is still probably w

illing to stipulate to it

, so as to unburden the

government further at trial. Id. On August 7, 2001, the Assistant U.S. Attorney replied by proposing three stipulations that wer

e materially

identical to the thre

e stipulations Dunn had

made in his motion for a

stipulated bench tria

l and to the three joint stipulations of fact eventually submitted by the p arties over nine months later. CompareR1-34, Ex. B with R1-31 and with

R1-36. The Assis

tant U.S. Attor

ney further ex

plained that:35

The only evidence that I can foresee introducing is the physical evidence seized, and which

we can then substitut

e photos into the recor

d for the actual items [ sic]. I would do this only for the sake

of completene ss of the record and so that an

y appellate cour

t would not be misguided as to the typ e and style of the f

irearm in ques

tion

. R1-34, Ex. B (emphasis supplied). In sum, the gove

rnment’s ar

gument in its Mar

ch 4, 2002, response

to Dunn’s motion to dismiss for pretrial delay that “ issues of contention” existed as to the evidence rega

rding Dunn’s “

guilt” seems pa

tently disingenuous . By the government’s own admission, the only additional evidence it wished to introduce at trial was evide

nce relating to the t

ype and style

of Dunn’s firea

rm; more over, its sole purpose in doing so w as “ in order to make

the record com

plete ,” R1-32 (emphasis supplied), th at is, “ for the sake of completeness of the record and so that any appellate court would not be misguided as to the type and style of the firearm in question .” R1-34, Ex. B (emphasis supplied). Further, Dunn plainly wa s prepared to stipulate, and did in fact stipulate, to these facts about his weapon. In short, the governm

ent’s claim

of “issues of contention” concernin g Dunn’s “guil

t or innocence” is no t borne out by the facts.36

Likewise, th ere appears to be no ba sis for the government ’s argument that a pre-trial evidentiary hearing was necessa ry to resolve “

issues of contention as

to the relevant eviden

ce regarding . . . [Dunn’s] c laims of acce

ptance of responsibility”–t

his being an issue that i s dependent upon a prior judgment of gui

lt and properly reserved for s entencing, as the go vernment previously recogn ized. See Government’ s Response to Defen dant’s Motion for a

Stipulated Bench T

rial, R1-32 (stating that th

e government “

reserves the right

to present its evidence and legal authority on the issue of accep tance of responsibil

ity under U.S .S.G. § 3E1. 1, at Defendant’s sentencing (provided Defendant is convicted of the alleged crimes) .” Again, the government’s pos t-hoc justification rings hollow. As the governme

nt elsewhere concedes, the delay in Dunn’s case ha

d little to do with any of the foregoing. Rather, [t]he delay in this case resulted from the unusual motion for a stipulated bench trial, that was agreed upo n by the Governm

ent , and the Co urt’s scheduling difficulti

es (which included t

ime in around Se

ptember 11, 2001[)]; the Court’s duties in the Newnan Division of the Northern District of Georg ia; and the Cou rt’s own absenc e for su rgery. R1-34, at 6 (emphasis sup plied).37

In U.S. v. Grosz

, 76 F.3d. 1318 (5th Cir. 1996), the Fifth Circuit recognized an important limitation on the principle that all the time between the filing of a pre-trial motion that requires a hearing and the conclusion of the hearing at which it is addressed is exc

luded under § 3161(h)( 1)(F). The Fif th Circuit acknowledged, as any reviewing court must, that the government m ay not manufacture a hearing in order to avoid operation o f Speedy Trial Act. Id. at 1325, n. 7. Regre

ttably, a car

eful review of the

record suggests that

such a circumstance occurred here. Though I certainly agree w ith the majority that there may be good r

easons for having a he

aring on a motion f

or a stipulated bench

trial, and that we should show

deference to a tr

ial court’s judg

ment that such a

hearing is necessa ry, that is no t the issu e here. The qu estion he re is whethe r the judge’s actual reasons for

holding a hearing should be countenanced as s

ufficient to overcome the de

fendant’s speedy

trial rights. In f

act, none of the re

asons suggested by the majority for having a hearing were relied upon by the district court. Instead,

the record is clea

r that the trial j udge’s actual re asons for requiring a hearing that served as the basis for denying Dunn’s motion to dismiss were factually m

istaken. Thus, I

believe that in the sp ecific circum stances of this case Dunn’s motion should h ave been granted. Cf. , Grosz , 76 F. 3d at 1 325 n.7 (“We acknowledge that we would not recognize the exchange as a ‘hearing’ if the record38

demonstrated an attempt on the part of . . . the government to m anufacture a ‘hearing’ to a

void the operation of t

he Speedy Tri

al Act.”). Fo

r these reasons , I respectfully dissent from Part II.B.1 of the m ajority’s opinion in this case.