IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-1066

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOWELL C. WILLIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(March 26, 1992)

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Two years after his indictment, Howell C. Willis was tried and

convicted of two counts of attempting to evade and defeat income

tax and two counts of failing to file a n income tax return. He

argues that the district court erred in failing to dismiss his

indictment because the delay in his trial violated the Speedy Trial

Act, 18 U.S.C. § 3161 et. seq

. We agree and reverse his

convictions.

I.

The Speedy Trial Act requires close attention to the number of

days elapsing between indictment and trial. Willis was indicted on

November 16, 1988, and made his first app earance before a2

magistrate on November 18. At this appearance, Willis waived his

right to counsel and announced his intention to proceed pro se

. It

is undisputed that the clock began to run on November 18, 1988. 18

U.S.C. § 3161(c)(1).

Twenty-four days then passed which were includa ble in time

elapsed under the Act. On December 12, 1988, Willis stopped the

clock with motions to dismiss the indictment. It is conceded that

the days whil e these motions were under consideration by the

district court were excluded under the Act. 18 U.S.C.

§ 3161(h)(1)(F)

. The district ruled on the motions on February 16,

1989. Eleven days passed with no motions pending.

On February 27, 1989, Willis filed a motion to have counsel

appointed and for time to prepare for tri al. On March 13, 1989,

the court held a hearing on these motions. The district court,

having apparently mi s calculated the number of days remaining,

advised Willis that the price of additional time to prepare for

trial was waiver of his rights under the Speedy Trial Act. The

court said "Now, in order to grant your request for a continuance,

you have to give up your right to a spe edy trial. Otherwise we

need to start the trial today." Willis, who was still

unrepresented by counsel, agreed to waive his speedy trial rights.

On the basis of this waiver, the district court granted a

continuance for a minimum of thirty days, continuing until Willis

indicated he was ready for trial. Three days after the hearing,

Willis filed a motion which the district court denied on March 31.

A period of 79 days then elapsed with no motions pending.3

In July 1989, the district court became con cerned about the

validity of Willis's waiver of his speedy trial and requested that

one of the parties move for a continuance under 18 U.S.C.

§ 3161(h)(8). Continuances granted under § 3161(h)(8) suspend the

accrual of delay under the Act where the court finds that "the ends

of justice served by taking such action outweigh the best interest

of the public and the defendant in a speedy trial." On July 19,

Willis filed pretrial motions. On August 1, the district court

granted a § 3161(h)(8) continuance after making the appropriate

findings.

On March 13, 1990, Willis moved to dismiss the indictment

against him on the ground that the 70-day period for his trial to

be commenced had expired under the Speedy Trial Act. The district

court denied the motion, concluding that the 79-day delay between

March 13 and August 1, 1989, was excludable by Willis's waiver of

his speedy trial rights. If the 79-day period is excluded only 35

days would have elapsed for purposes of the Act. Willis was tried

and convicted after a trial beginning on October 29, 1990, almost

two full years after his indictment.

II.

The Speedy Trial Act, 18 U.S.C. § 3161 et seq

., requires that

federal defendants be tried within 70 days of their indictment or

their first a ppearance before a judicial officer. 18 U.S.C.

§ 3161(c)(1); United States v. Kington

, 875 F.2d 1091, 1107 (5th

Cir. 1989). The Act provides that the accrual of the 70 days will

be tolled under particular circumstances, such as when motions are4

pending before the district court or during a continuance where the

district court finds on the record that the ends of justice

outweigh the interests of the public and the defendant in a speedy

trial. 18 U.S.C. § 3161(h)(8).

Much of the delay in bringing Willis to trial falls within one

of these two major exceptions to the computation of time under the

Act. The period which is the focus of the dispute here is the 79

days immediately following Willis's purported waiver of his speedy

trial rights. The district court excluded the 79-day period from

consideration because it "was occasioned by Willis's waiver of his

rights," relying upon United States v. Pringle

, 751 F.2d 419, 434-

35 (1st Cir. 1984).

In Kington

, we joi ned all the other circuits which have

addressed the question in recognizing that the provisions of the

Speedy Trial Act are not waivable by the defendan t. 875 F.2d at

1107. S ee also Pringle

, 751 F.2d at 434-35. U nited States v.

Kucik

, 909 F.2d 206, 211 (7th Cir. 1990); United States v.

Berberian

, 851 F.2d 236, 239 (9th Cir. 1988); United States v. Ray

,

768 F.2d 991, 998 (8th Cir. 1985). The Act is intended both to

protect the defendant from undue delay in his trial and to benefit

the public by ensuring that criminal trials are quickly resolved.

Allowin g the defendant to waive the Act's provisions would

compromise the public interest in speedy justice. In the vast

majority of cases, the defendant will be quite happy to delay the

final determination of his guilt or innocence. The Act's central

intent to protect society's interests requires that a defendant's5

purported waiver of his rights under the Act be ineffective to stop

the speedy trial clock from running. Therefore, the 79-day period

of delay occasioned by Willis's waiver is includable in the

calculation of delay under the Act, bringing the total in this case

to 114 days. The more vexing question, upon which we reserved

comment in Kington

, is whether Willis can take advantage of this

delay to attain the dismissal of his indictment.

Dismissing an indictment is a sharp remedy, and we have been

reluctant to impose it where the defendant has induced the district

court to misapply the Act and then relies upon that error to seek

d ismissal. U nited States v. Eakes

, 783 F.2d 499, 503 (5th Cir.

1986). I n Eakes

, the district court erroneously concluded that the

Act re quired a 30-day waiting period because the defendants had

been arraigned on a new superseding indictment. The defendant was

offered the opportunity to go to trial, but preferred to assert his

right to the 30-day delay. This court concluded that the district

court erred in granting the continuance. Nonetheless, we held that

the defendant was not entitled to the dismissal of the indictment

because he had requested that the judge interpret the Act to

require a 30-day continuance in his case. Where the defendant has

successfully convinced the trial court that a continu ance is

appropriate under a provision of the Act and then later seeks to

argue that the district court's ruling on the applicability of the

exception was erroneous, "[w]e decline to apply a hyp ertechnical

construction to the language of the Act" and will determine whether

the continuance would have been appropriate un der § 3161(h)(8).6

783 F.2d at 504. As we recognized in E akes

, allowing defendants to

sandbag the d istrict court would encourage harmful strategic

behavior and straightjacket the district court in ruling under the

Act. Id

.

We expressly reserved in Kingt on the question of whether to

extend this exception to delays attributable to defendants'

purported waivers of their rights under the Act when requesting a

continuance. Other courts h ave adopted the broad pri nciple that

the defendant's participation in requesting a continuance prevents

him from relying upon that time period for a dismissal. Pringle

,

751 F.2d at 434; United States v. Kucik

, 909 F.2d 206, 211 (7th

Cir. 1990) (where a defendant actively participates in obtaining a

continuance, he may not rely upon that period to support

dismissal). We decline to follow this path.

In Kington

, we call ed sensible the P ringle maxim that

"defendants ought not to be able to claim relief on the basis of

delays which they themselves deliberately caused." 875 F.2d at

1108. This sensible maxim must not be taken too far. The major

c oncern of the P ringle court was that a defendant not be able to

have it both ways by convincing the district court that delay was

appropriate and then using that delay to obtain a dismissal. The

court explained its reasoning as follows:

"if we were to find that the delay caused by the waiver

did not stop the speedy trial clock, then we would be

rewar ding the defendants by enhancing their chances of

dismissals. In essence, defendants would have

successfully worked both sides of the street, lulling the

court and prosecution into a false sense of security only

to turn around later and use the waiver-induced leisurely

pace of the case as grounds for dismissal.7

Pringle , 751 F.2d at 434. We agree that the defendant should not

be allowed to argue one legal theory or characterization of facts

to obtain a continuance and then argue that the district court's

ruling was erroneous to seek dismissal under the Act.

A district court is not sandbagged or other wise misled,

however, by a defendant's simple request for or acquiescence in a

continuance and its own insistence upon a waiver. Our holding that

the provisions of the Act are non-waivable would be meaningless if

we adopted the rule that the defendant waives his ability to move

for dismissal of the indictment simply by asking for or agreeing to

a continuance. It is the responsibility of the district court to

ensur e that a request for a continuance in a criminal case which

threatens to delay trial past the 70-day mark falls within one of

the Act's exceptions. Congress's intent in providing for the

dismissal sanction was "to serve as a deterrent for the failure of

the United States Att orney or the court to comply with the Act."

Pringle

, 751 F.2d at 434 (emphasis added). District courts must

take seriously the dictates of the Speedy Trial Act in the day-tod ay operations of their courtrooms both when setting trial dates

and when ruling on continuances. District courts may not under the

daily pre ssures of a docket avoid these congressionally mandated

strictures by creating judicial exceptions which swallow the rule.

The Act contains potential sanctions agains t lawyers who delay

t rials, but a dismissal of the indictment is by far i ts most

effective enforcement mechanism and the only one which operates

where the court is responsible for the violation. 18 U.S.C.8

§ 3162. If Congress is troubled by the effects of the dismissal

remedy in these cases, it may provide an additional exception under

the Act for continuances requested by defendants. Until that time

we are bound by the provisions of the Act.

In short, we hold that dismissal of an indict ment is

inappropriate whe n a defendant requests a continuance under an

erroneous interpretation or application of one of the Act's

provisions and the district court simply errs in its application of

the Act to the defendant's request. In those cases, as in Eakes

,

we will look to the circumstances surrounding the continuance and

ask whether the district court could have granted a § 3161(h)(8)

c ontinuance. If so, we will treat the time as an excludable

continuance. Dismissal will be appropriate where the district

court grants a continuance based solely upon a defendant's "waiver"

without identifying an applicable exception or performing an ends

of justice analysis under § 3161(h)(8).

The district court did not attempt to determine wh ether the

defendant's waiver of his rights under the Act was a statutory

exception and did not perform an ends o f justice analysis. The

c ourt was not misled or sandbagged by Willis. It induced a

"waiver" and then asked the defendant to advise the court when he

was ready for trial. Predictably, that date was long in coming.

Willis did not go to trial within 70 days of the defendant's

appearance before a magistrate, even when all excludable days are

disregarded. The Act mandates that in such circumstances "the

information or indictm ent shall be dismissed on motion of the9

def endant." 18 U.S.C. § 3162(a)(2). Accordingly, the district

court erred in failing to grant the motion to dismiss Willis's

indictment.

The dismissal of an indictment required by the Act may be

either with or without prejudice. 18 U.S.C. § 3162(a)(2). In

making this decision, the court "shall consider, among others, each

of the following factors: the seriousness of the offense; the

facts and circumstances of the case which led to the dismissal; and

the impact of a reprosecution on the administration of this chapter

and on the administration of justice." I d

. The district court is

best situated to decide whether to dismiss with prejudice. We

reverse the convictions for violation of the Speedy Trial Act but

leave to the district court the nature of that dismissal.

Willis also argues on appeal that his conviction is barred by

t he Paperwork Reduction Act of 1980, 44 U.S.C. § 3501 . This

argument is foreclosed by this court's decision in United States v.

Kerwin

, 945 F.2d 92 (5th Cir. 1991). S ee also United States v.

Neff , 954 F.2d 698 (11th Cir. 1992); United States v. Wunder , 919

F.2d 34 (6th Cir. 1990). We need not address Willlis's other

arguments on appeal. The judgment of the district court is

REVERSED and the case is REMANDED to allow the district court to

decide whether the dismissal shall be with prejudice.