FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30477 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00154-RSL

MARTIN MEDINA, Jr.,

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 05-30482

Plaintiff-Appellee, D.C. No.

v.  CR-04-00093-001-

M RSL ARTIN MEDINA, Jr.,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted

February 6, 2008—Seattle, Washington

Filed April 29, 2008

Before: Raymond C. Fisher, Ronald M. Gould, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

4547
COUNSEL

William C. Broberg, Seattle, Washington, for the defendantappellant. 

4550 UNITED STATES v. MEDINA
Patricia C. Lally, Assistant United States Attorney, Office of

the United States Attorney, Seattle, Washington, for the

plaintiff-appellee. 

OPINION

IKUTA, Circuit Judge: 

The district court dismissed Martin Medina’s indictment

without prejudice after determining that the excessive pretrial

delays violated the Speedy Trial Act, 18 U.S.C. §§ 3161-

3174. On appeal, Medina disputes the district court’s speedy

trial calculations and its decision to dismiss the indictment

without prejudice. 

I

On March 3, 2004, Martin Medina, Jr. and four codefendants were charged in a 12-count indictment. Medina

was charged with one count of conspiracy to distribute

cocaine and methamphetamine and four counts of distribution

of methamphetamine. Of the five charged co-defendants,

Medina was the only one to stand trial on the charges. Two

of Medina’s co-defendants pleaded guilty on September 13,

2004, and one pleaded guilty on September 20, 2004. The

fourth co-defendant fled while released on bond. 

Between March 3, 2004, and the first day of trial on June

6, 2005, there were several delays, two of which are at issue

in this case. The first delay began on March 31, 2004, when

one of Medina’s co-defendants, Contreras, filed three pretrial

motions: a motion to sever counts and defendants, a motion

to suppress statements, and a motion to suppress evidence.

Contreras requested oral argument for each of these motions.

The district court denied these motions as moot after Contreras pleaded guilty on September 20, 2004. 

UNITED STATES v. MEDINA 4551
The second delay at issue extended from October 18, 2004

through January 10, 2005. On October 13, 2004, Medina’s

counsel filed a stipulation and proposed order requesting a

continuance of the trial from October 18, 2004 until late January or early February of 2005. Counsel gave three grounds for

the continuance request: (1) the government had recently provided defense counsel audio recordings of conversations

between Medina and an undercover police officer that the

government had not disclosed previously; (2) the parties

wanted more time to conduct plea negotiations; and (3)

defense counsel was about to begin another unrelated trial

which was expected to take six to eight weeks. On October

14, 2004, the court signed the stipulation, granted the continuance, and set the new trial date for January 10, 2005. 

On March 21, 2005, more than one year after the filing of

the indictment, Medina’s counsel filed a motion to dismiss the

indictment with prejudice for violation of the Speedy Trial

Act, 18 U.S.C. § 3161. On April 6, 2005, the district court

held an evidentiary hearing regarding this motion, and issued

an order on April 8, 2005 dismissing Medina’s indictment

without prejudice. The district court’s conclusions must be

understood in the context of the Speedy Trial Act, as interpreted by judicial decisions. 

A

[1] The Speedy Trial Act, 18 U.S.C. §§ 3161-3174,

requires that a defendant be brought to trial “within seventy

days from the filing date . . . 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.” 18 U.S.C. § 3161(c)(1). 

Section 3161(h) of the Speedy Trial Act lists the periods of

delay that the district court must exclude in computing the

time within which the trial must commence. For purposes of

this case, three subsections of § 3161(h) are applicable:

4552 UNITED STATES v. MEDINA
§ 3161(h)(1)(F) and (J) (governing delays attributable to pretrial motions);1

 and § 3161(h)(8) (governing delays resulting

from continuances granted by a district court).

Under § 3161(h)(1)(F), the district court must exclude from

its computation of time within which the trial of an offence

must commence “delay resulting from any pretrial motion,

from the filing of the motion through the conclusion of the

hearing on, or other prompt disposition of, such motion.”

§ 3161(h)(1)(F). Section 3161(h)(1)(J) requires a district court

to exclude “delay reasonably attributable to any period, not to

exceed thirty days, during which any proceeding concerning

the defendant is actually under advisement by the court.”

§ 3161(h)(1)(J). 

In interpreting the Speedy Trial Act, the Supreme Court has

established that there are two different types of pretrial

motions, those that require a hearing, and those that do not.

Henderson v. United States, 476 U.S. 321, 329-30 (1986).

Under Henderson, we must read § 3161(h)(1)(F) and (J)

together in determining what periods of delay are excluded

1

18 U.S.C. § 3161(h)(1) provides, in pertinent part: 

(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must

be filed, or in computing the time within which the trial of any

such offense must commence: 

(1) Any period of delay resulting from other proceedings

concerning the defendant, including but not limited to— 

. . . 

(F) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing

on, or other prompt disposition of, such motion; 

. . . 

(J) delay reasonably attributable to any period, not to

exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the

court. 

UNITED STATES v. MEDINA 4553
for each type of pretrial motion. Id. In brief, if a pretrial

motion does not require a hearing, the period from the date

the motion was taken under advisement until the court rules

on the motion, but no more than 30 days, may be excluded.

Henderson, 476 U.S. at 329; § 3161(h)(1)(F) and (J). 

On the other hand, if a pretrial motion is of the sort that

requires a hearing, a district court must exclude the following

periods of delay: (i) the period from the date the motion was

filed to the conclusion of the hearing, Henderson, 476 U.S. at

329-30; (ii) the period from the conclusion of the hearing until

the date the district court “receives all the submissions by

counsel it needs to decide that motion,” id. at 330-31; and (iii)

the period from the last day of the period described in (i) or

(ii), as applicable, until the court rules on the motion, but no

more than 30 days, id. at 332; see also United States v. Sutter,

340 F.3d 1022, 1030 (9th Cir. 2003). In general, the district

court must exclude these periods of delay whether or not the

delay was reasonably necessary. Henderson, 476 U.S. at 330;

see also United States v. Clymer, 25 F.3d 824, 830 (9th Cir.

1994) (“Where delay in commencing a trial results from the

pendency of a motion . . . the delay will automatically be

excluded from the Speedy Trial Act calculation, no matter

how unreasonable or unnecessary that delay might seem.”).

Moreover, the district court must exclude time while the

motion is pending even if the court ultimately does not hold

a hearing or rule on the motion. See United States v. Gorman,

314 F.3d 1105, 1115 (9th Cir. 2002) (holding that the district

court properly excluded the nearly 10-month period between

defendant’s filing of a motion to exclude evidence and the

defendant’s entering of a guilty plea even though the court

never ruled on the suppression motion). “Congress clearly

envisioned that any limitations [on the exclusion of time

while the pretrial motion is pending] should be imposed by

circuit or district court rules rather than by the statute itself.”

Henderson, 476 U.S. at 328. 

We have identified two exceptions to this general rule that

a district court must exclude all time during the pendency of

4554 UNITED STATES v. MEDINA
a pretrial motion that requires a hearing. First, if a district

court continues a motion until after trial, the court may not

exclude the time while the postponed motion is pending.

United States v. Lewis, 349 F.3d 1116, 1121-22 (9th Cir.

2003); Clymer, 25 F.3d at 830. Second, we have made an

exception for certain pro forma motions to compel discovery

in a criminal case where the motions required no decision by

the district court “unless and until future discovery disputes

arose.” Sutter, 340 F.3d at 1029-32. If such a discovery

motion is not “continued until a date certain or the happening

of an event certain,” then the motion is deemed to be “under

advisement,” for purposes of § 3161(h)(1)(J), “as of the date

of the last hearing or filing of supporting papers, whichever

is later.” Id. at 1031-32. In such circumstances, the court may

exclude no more than 30 days. § 3161(h)(1)(J); see also Henderson, 476 U.S. at 329; Sutter, 340 F.3d at 1030. 

We next turn to delays resulting from continuances granted

by a district court under § 3161(h)(8).2 Section 3161(h)(8)(A)

2

18 U.S.C. § 3161(h)(8) provides, in pertinent part: 

(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must

be filed, or in computing the time within which the trial of any

such offense must commence: 

. . . 

(8)(A) Any period of delay resulting from a continuance

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

taking such action outweigh the best interest of the public

and the defendant in a speedy trial. No such period of delay

resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection 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. 

UNITED STATES v. MEDINA 4555
provides that the court must exclude periods of delay resulting

from a continuance granted by a judge “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.” § 3161(h)(8)(A). In order to exclude such a

period of delay, the court must state such findings in the

record, “either orally or in writing,” § 3161(h)(8)(A), “by the

time a district court rules on a defendant’s motion to dismiss

under § 3162(a)(2)” of the Speedy Trial Act. Zedner v. United

States, 547 U.S. 489, 507 (2006); see also United States v.

Bryant, 726 F.2d 510, 511 (9th Cir. 1984). Section

3161(h)(8)(B) sets forth factors the court should consider in

determining whether to grant such a continuance, including

“[w]hether the failure to grant such a continuance . . . would

(B) The factors, among others, which a judge shall consider

in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:

(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 this section. 

. . . 

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

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

4556 UNITED STATES v. MEDINA
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.” § 3161(h)(8)(B)(iv). 

[2] If the defendant is not brought to trial within the 70-day

period mandated by the Speedy Trial Act (subtracting all

properly excludable periods of delay), then the defendant may

move for a dismissal of the indictment. See 18 U.S.C.

§ 3162(a)(2). The defendant has the burden of proving that

the delay meets the criteria for dismissal.3Id. 

If the defendant carries this burden, the indictment “shall be

dismissed,” and the district court must then consider whether

to dismiss the case with or without prejudice. Id. Section

3162(a)(2) provides: “In determining whether to dismiss the

case with or without prejudice, 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.” When considering the facts and circumstances of the

case which led to dismissal, the court should again consider

the length of the pretrial delay because “the length of a delay

standing alone is a significant ‘measure of the seriousness of

the speedy trial violation.’ ” Clymer, 25 F.3d at 832 (quoting

United States v. Taylor, 487 U.S. 326, 340 (1988)). 

3The exception to this rule is that “the Government shall have the burden of going forward with the evidence in connection with any exclusion

of time under [§] 3161(h)(3).” § 3162(a)(2). Section 3161(h)(3) relates to

the exclusion of periods of delay “resulting from the absence or unavailability of the defendant or an essential witness.” 

UNITED STATES v. MEDINA 4557
B

As explained in its order of April 8, 2005 (dismissing

Medina’s indictment without prejudice), the district court concluded that 402 days had elapsed from the filing of the indictment to the date of the order. Of that period, the district court

held that 311 days were excludable. The district court

excluded the period from March 30, 2004 through September

13, 2004, which it identified as the period beginning on the

date co-defendant Contreras’s pretrial motions were filed until

the date the pretrial motions became moot due to Contreras’s

guilty plea. The district court also excluded the period from

October 18, 2004 through January 10, 2005, during one of the

continuances granted by the court. The court held that this

time was properly excluded from the speedy trial calculation

because this continuance served the ends of justice pursuant

to § 3161(h)(8)(B)(iv). Specifically, the continuance allowed

the defendant time for “effective preparation,” because the

defendant needed more time to review the new discovery

material provided by the government. In addition, the continuance ensured “continuity of counsel.” § 3161(h)(8)(B)(iv). 

However, even taking into account these and other excludable periods, the court determined that 91 days had elapsed

since the date the government had filed Medina’s indictment.

Because Medina was not tried within 70 days of the filing of

the indictment, the district court dismissed the charges against

him pursuant to § 3162(a)(2). 

The district court then considered whether the case should

be dismissed with or without prejudice in light of the three

statutory 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 the Speedy

Trial Act and on the administration of justice. See

§ 3162(a)(2). 

The court first noted that Medina did not contest that his

offense was serious. 

4558 UNITED STATES v. MEDINA
Next, in considering the facts and circumstances leading to

the Speedy Trial Act violation, the court agreed with Medina’s statement that the delay in bringing him to trial was serious, especially given that Medina was in detention pending

the outcome of the case. Nevertheless, the court stated,

“Being mindful of the toll that this process has taken on Mr.

Medina, however, this Court does not believe the 21-day

delay to be extreme.” Moreover, the district court concluded

that many of the violations of the Speedy Trial Act were

merely technical. The court noted that the continuances that

contributed to the Speedy Trial Act violation had been

granted for reasons that would have met the criteria of

§ 3161(h)(8)(B) (providing reasons a continuance might serve

the “ends of justice”), but the court and the parties had failed

to document that the continuances met such criteria. Moreover, the continuances had been agreed to by defense counsel.

In light of the lack of evidence that Medina would suffer any

prejudice as a result of the delay, and the technical nature of

the violations, the district court held that the facts and circumstances leading to the Speedy Trial Act violations did not warrant dismissal with prejudice. 

Finally, in considering the impact of reprosecution of

Medina on the administration of the Speedy Trial Act and the

administration of justice, see § 3162(a)(2), the court concluded that there was “no evidence that the Speedy Trial Act

violation was the result of bad faith on the part of the government.” The court noted that both counsel, as well as the court,

“bear their fair share of responsibility for the Speedy Trial Act

violation.” The court concluded that “the administration of

justice and the considerations of the Speedy Trial Act do not

warrant dismissing the case with prejudice.” Accordingly, the

district court entered its order dismissing Medina’s indictment

without prejudice. 

On April 14, 2005, a grand jury reinstated the dismissed

drug charges in a new indictment. After a bench trial, the disUNITED STATES v. MEDINA 4559
trict court found Medina guilty of all the drug charges and

judgment was entered on September 30, 2005. 

II

On appeal, Medina challenges the district court’s calculation of the number of days that should be excluded in computing the time within which his trial should have commenced.

Medina also argues that the district court erred in dismissing

the indictment without prejudice. 

We review the district court’s interpretation and application

of the Speedy Trial Act de novo, and review the district

court’s findings of facts for clear error. United States v.

Martinez-Martinez, 369 F.3d 1076, 1084 (9th Cir. 2004). The

burden of proving that the trial has not commenced “within

the time limit required by section 3161(c) as extended by section 3161(h),” generally lies with the defendant. § 3162(a)(2).

We review the district court’s decision to dismiss an indictment under the Speedy Trial Act without prejudice for an

abuse of discretion. See Taylor, 487 U.S. at 332, 343-44. A

court abuses its discretion if it “failed to consider all the factors relevant to the choice” and the “factors it did rely on were

unsupported by factual findings or evidence in the record.” Id.

at 344.

A

With respect to the purported calculation error, Medina

challenges the court’s exclusion of the period of delay from

March 30, 2004 through September 13, 2004 and the period

of delay from October 18, 2004 through January 10, 2005.

We consider these challenges in turn. 

1

We first consider Medina’s challenge to the exclusion of

the period of delay from March 30, 2004 through September

4560 UNITED STATES v. MEDINA
13, 2004 (the period from the time Contreras’s pretrial

motions were filed until Contreras pleaded guilty). Medina

argues that this time should not have been excluded for two

reasons. First, he contends that under the local rules these pretrial motions were of the type that did not require a hearing,

and therefore the district court could exclude only 30 days. In

making this argument, Medina relies on a local court rule that

states:

Evidentiary Hearings and Oral Arguments. Unless

otherwise ordered by the court, all motions will be

decided by the court without oral argument. A party

desiring oral argument shall so indicate by typing

ORAL ARGUMENT REQUESTED in the caption

of the motion or responsive brief. If the court determines an evidentiary hearing is appropriate or grants

a request for oral argument, the clerk will notify the

parties of the date and hour thereof. Counsel shall

not appear on the date the motion is noted unless so

directed by the court.

W.D. Wash. Crim. R. 12(c)(10). According to Medina, this

rule creates a presumption that motions will be decided on the

papers, unless and until the parties are otherwise directed by

the court. Noting that the district court took no action of any

kind regarding Contreras’s pretrial motion, Medina argues

that, pursuant to the local rules, it should be presumed that a

hearing was not necessary. 

[3] We disagree with Medina’s interpretation of the local

rule. The threshold inquiry under Henderson is one of classification, i.e., whether the motion at issue falls within the class

of motions that require a hearing, or whether it falls within the

class of motions that do not require a hearing. See 476 U.S.

at 329. On its face, the local rule does not make a distinction

between those two types of motions. Instead, the local rule

simply indicates that the court will make the determination as

to whether “an evidentiary hearing is appropriate.” W.D.

UNITED STATES v. MEDINA 4561
Wash. Crim. R. 12(c)(10). The local rule therefore sheds no

light on our inquiry whether Contreras’s motions are the type

of motions that require a hearing. 

[4] In this case, Contreras’s motions to suppress statements

and evidence are of the type that would normally require an

evidentiary hearing. See, e.g., United States v. Walczak, 783

F.2d 852, 857 (9th Cir. 1986) (“An evidentiary hearing on a

motion to suppress ordinarily is required if the moving papers

are sufficiently definite, specific, detailed, and nonconjectural

to enable the court to conclude that contested issues of fact

going to the validity of the search are in issue.”). Because the

local rule does not give rise to a presumption that no hearing

is required, and because Medina has not provided any other

evidence that Contreras’s motions fall within the class of

motions that could be decided without an evidentiary hearing,

we conclude that Medina did not carry his burden of establishing that Contreras’s pretrial motions did not require a

hearing. 

Second, Medina argues that because the court took no

action on Contreras’s pretrial motion, the motion did not

result in any period of delay under § 3161(h)(1), and the court

erred in excluding the period during which the motion was

pending. Alternatively, Medina argues that the court should

exclude only a 30-day period, and deem the motion “under

advisement” as of the filing date pursuant to § 3161(h)(1)(J).

[5] We disagree with both these arguments. Because Contreras’s pretrial motions are of the type that require a hearing,

“subsection (F) on its face excludes the entire period between

the filing of the motion and the conclusion of the hearing.”

Henderson, 476 U.S. at 329. Moreover, the Court has

expressly declined to create an exception to this rule for situations where the delay was not “ ‘reasonably necessary,’ ”

holding that such a qualification of subsection (F)’s exclusion

“would be at odds with the plain language of the statute.” Id.

at 330. 

4562 UNITED STATES v. MEDINA
While we have recognized two narrow exceptions to the

general rule that a district court must exclude all time during

the pendency of a pretrial motion that requires a hearing, Contreras’s motions do not fall within either. Medina cannot rely

on Clymer’s holding that pretrial motions postponed until

after trial do not toll the Speedy Trial Act clock, 25 F.3d at

830-31, because the district court here did not postpone Contreras’s motions. Moreover, Contreras’s motions on their face

required action before trial. The fact that Contreras’s motions

became moot before the district court ruled or took any other

action on them does not affect their characterization for

Speedy Trial Act purposes. See Gorman, 314 F.3d at 1115;

see also United States v. Vo, 413 F.3d 1010, 1015 (9th Cir.

2005) (acknowledging well-established circuit precedent

“holding that the time a motion is pending is excludable even

when the pendency of the motion causes no actual delay in

the trial”). 

Nor can Medina rely on Sutter’s holding that a district court

may exclude no more than 30 days for certain pro forma

motions to compel discovery in a criminal case. Sutter, 340

F.3d at 1029. Unlike the pro forma criminal discovery

motions considered in Sutter, Contreras’s motions to sever

and suppress evidence were not “empty box” motions “into

which later-arising disputes can be placed.” Id. The trial could

not proceed unless and until the specific issues raised by Contreras’s suppression motions were resolved. 

Medina contends that Sutter should be interpreted as holding, more broadly, that whenever the court fails to take action

on a pretrial motion, it is improper to exclude any time from

the Speedy Trial Act calculation because the motion is never

“under advisement.” To support this argument, Medina points

to the language in Sutter to the effect that: “Henderson indicates that motions that do not result in a hearing do not toll

the Speedy Trial clock unless resolved within 30 days from

the time the motion is taken under advisement.” 340 F.3d at

1031. In interpreting this language to mean that a motion not

UNITED STATES v. MEDINA 4563
acted on within 30 days does not toll the Speedy Trial Act

clock at all, Medina is taking the sentence out of context. As

made clear by the language following this quote, Sutter was

referring to a passage in Henderson explaining why motions

that do not require a hearing cannot toll the Speedy Trial

clock for more than 30 days. Henderson, 476 U.S. at 329. On

the other hand, when a motion does “necessitat[e] a hearing,”

it “will not be ‘under advisement’ until after” that hearing is

held. Sutter, 340 F.3d at 1032. Contreras’s suppression

motions were never “under advisement,” cf. § 3161(h)(1)(J),

because the district court could not be “ ‘in a position to dispose of [them],’ ” see Sutter, 340 F.3d at 1032 (quoting Henderson, 476 U.S. at 331), until the conclusion of an

evidentiary hearing. The period during which they were pending was nonetheless excludable under § 3161(h)(1)(F),

because a hearing is required to decide motions of that sort,

even though none was ever actually held. See Gorman, 314

F.3d at 1115. 

[6] Therefore, we conclude that the district court did not err

in excluding the entire period while Contreras’s motions were

pending. 

2

[7] Finally, Medina argues that the district court made two

errors in determining the date the period of delay commenced

for these pretrial motions. First, Medina notes that the court

erred in stating that March 30, 2004 was the date Contreras

filed his pretrial motions. Medina is correct on this point, as

the government concedes: the docket sheet indicates the pretrial motions were filed on March 31, 2004. However, the

one-day error was harmless. Because the district court ultimately concluded that Medina’s trial had been delayed more

than 21 days past the required 70-day commencement date,

the one-day error did not affect the court’s finding of a

Speedy Trial Act violation. Cf. United States v. Daychild, 357

F.3d 1082, 1092 (9th Cir. 2004). Also, nothing in the district

4564 UNITED STATES v. MEDINA
court’s analysis of the factors set forth in § 3162(a)(2) suggests that a one-day difference would have affected its ultimate decision to dismiss the indictment without prejudice. 

Second, Medina argues that the delay resulting from these

pretrial motions did not commence on the date Contreras filed

the motions, but rather on the date the court “noted” the

motions under local rules, namely, April 23, 2004. See W.D.

Wash. Crim. R. 12(c)(7) (“Unless otherwise authorized by the

court, motions shall be noted for consideration for the second

Friday after the motion is filed.”). Medina’s argument would

be stronger if Contreras’s pretrial motions were of the sort

that did not require a hearing. If that were the case, we would

need to consider whether the date the motions were noted for

consideration was the date the motions became “actually

under advisement” for purposes of § 3161(h)(1)(J). However,

because these pretrial motions are of the sort that do require

a hearing, the district court was bound by the plain language

of § 3161(h)(1)(F), which provides that all days are excludable “from the filing of the motion.” § 3161(h)(1)(F). “We

hold that the day a party files a motion is excludable for

speedy trial purposes. This decision accords with the literal

language of the Speedy Trial Act, the weight of authority of

other circuits’ precedent on the same issue, and the guidance

of our prior decisions.” Daychild, 357 F.3d at 1093. Therefore, we must reject Medina’s argument that the district court

erred in excluding time from the date Contreras filed the pretrial motions. 

3

[8] In sum, the district court did not err in calculating the

amount of time to be excluded due to Contreras’s pretrial

motions, except for its determination that Contreras filed his

pretrial motions on March 30, 2004 instead of March 31,

2004, which was harmless error. Therefore, the period of

delay from March 31, 2004 through September 13, 2004 must

be excluded from the calculation of the period from the filing

UNITED STATES v. MEDINA 4565
of the indictment to the commencement of trial under the

Speedy Trial Act. 

B

[9] We next consider Medina’s argument that the district

court erred in excluding the period of delay resulting from the

continuance from October 18, 2004 through January 10, 2005.

Medina argues that the court failed to document “its reasons

for finding that the ends of justice served by the granting of

such continuance outweigh[ed] the best interests of the public

and the defendant in a speedy trial,” as required by

§ 3161(h)(8)(A). We disagree. In its order dismissing the

indictment without prejudice, the district court explained:

This time [from October 18, 2004 through January

10, 2005, for the continuance] is properly excluded

from the speedy trial calculations. A continuance

may be granted to allow a party time for “effective

preparation.” § 3161(h)(8)(B)(iv). Although defendant complains that the discovery could have been

provided earlier with due diligence, it does not

appear as if the audio CDs were kept from defense

counsel as the result of any dilatory tactics or any

inexcusable delay. Furthermore, an ends of justice

continuance may be granted to ensure continuity of

counsel. See § 3161(h)(8)(B)(iv); see also United

States v. Nance, 666 F.3d 353, 358 (9th Cir. 1983)

(unavailability of defense counsel valid reason for

ends of justice continuance). 

The court’s explanation documents that it considered the factors in § 3161(h)(8)(B) and determined that the continuance

was merited based on two of the factors mentioned in

§ 3161(h)(8)(B)(iv), namely, failure to grant the continuance

“would unreasonably deny the defendant . . . continuity of

counsel,” and would deny defense counsel “the reasonable

time necessary for effective preparation, taking into account

4566 UNITED STATES v. MEDINA
the exercise of due diligence.” § 3161(h)(8)(B)(iv). This discussion of the statutory factors is adequate to support a continuance that serves the ends of justice under § 3161(8)(A).

See United States v. Brickey, 289 F.3d 1144, 1150-51 (9th

Cir. 2002). It is irrelevant that the parties’ stipulated findings,

signed by the district court, also mention that the parties were

actively engaged in plea negotiations, which is not itself a factor that may be used to support a continuance under

§ 3161(h)(8)(A), see United States v. Perez-Reveles, 715 F.2d

1348, 1352 (9th Cir. 1983). 

[10] Nor was it an error for the district court to document

these findings for the first time in the order dismissing the

indictment. See Bryant, 726 F.2d at 511 (holding that the

Speedy Trial Act is satisfied where the district court set forth

its reasons for granting the continuances for the first time in

the denial of the motion to dismiss the indictment); see also

Zedner, 547 U.S. at 506-07 (holding that the findings must be

made part of the record “by the time a district court rules on

a defendant’s motion to dismiss under § 3162(a)(2)”). In this

case, it is clear that the reasons stated by the district court are

“ ‘the actual reasons that motivated the court at the time the

continuance was granted,’ ” United States v. Engstrom, 7 F.3d

1423, 1426 (9th Cir. 1993) (quoting United States v. Crawford, 982 F.2d 199, 204 (6th Cir. 1993)), because the district

court had previously signed an order and stipulation containing the facts later relied on by the court in the motion to dismiss. Indeed, the signed order and stipulation itself would

have satisfied the Speedy Trial Act. See United States v.

Ramirez-Cortez, 213 F.3d 1149, 1157 n.9 (9th Cir. 2000)

(“District courts may fulfill their Speedy Trial Act responsibilities by adopting stipulated factual findings which establish

valid bases for Speedy Trial Act continuances.”). We conclude that the district court did not err in excluding the delay

from October 18, 2004 through January 10, 2005 because it

granted a continuance meeting the criteria in § 3161(h)(8) for

that period. 

UNITED STATES v. MEDINA 4567
C

[11] Finally, we consider Medina’s challenge to the district

court’s dismissal of the indictment without prejudice. In

determining whether to dismiss a case with or without prejudice, “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 [the

Speedy Trial Act] and on the administration of justice.”

§ 3162(a)(2).

[12] Medina first argues that the district court inadequately

explained how it weighed the seriousness of Medina’s

offense. Medina points out that in Taylor, the district court’s

failure to discuss the weight it gave to the seriousness of the

defendant’s offense led the Court to reverse the district

court’s dismissal with prejudice. See id. at 343. Taylor is not

analogous to this case, however. In Taylor, the district court

found that the crime was serious, id. at 338, which normally

weighs in favor of dismissal without prejudice. The district

court nevertheless dismissed the indictment with prejudice

without any substantive discussion of the factors supporting

that conclusion. Id. at 337, 343. Because it was clear from the

record that the district court had “failed to consider all the factors,” the Court concluded that the district court abused its

discretion in dismissing the case with prejudice. Id. at 344.

Here, by contrast, the district court’s finding that the crime

was serious supports its ultimate decision to permit reprosecution. The district court did not need to provide any additional

explanation. See, e.g., United States v. Arellano-Ochoa, 461

F.3d 1142, 1147 (9th Cir. 2006); see also United States v.

Pena-Carrillo, 46 F.3d 879, 882-83 (9th Cir. 1995). 

[13] Medina next argues that the district court erred in its

consideration of the facts and circumstances of the offense.

Specifically, Medina contends that the district court did not

give due weight to the length of Medina’s detention, did not

4568 UNITED STATES v. MEDINA
explain its reference to the “toll that this process has taken”

on Medina, and erred in describing the Speedy Trial Act violations as technical. These arguments are without merit. The

district court expressly considered the effect of the delay on

Medina, noting that any violation of the Speedy Trial Act is

serious, especially “when, as here, the defendant is in detention pending the outcome of his criminal case.” The district

court then balanced the impact of the delay on Medina against

the length of the delay, and held that the length of the delay

was not extreme, even “[b]eing mindful of the toll that this

process has taken on Mr. Medina.” Although the district court

did not mention the 21 days Medina spent in detention in its

subsequent conclusion that Medina did not suffer prejudice as

a result of the delay, the court was not required to do so. In

context, the district court’s statement that “there is no evidence that the Defendant will suffer any prejudice as a result

of the delay” indicated the court’s conclusion that the outcome of Medina’s case was not prejudiced by the continuances; the court was not ignoring the harm to Medina caused

by the 21 days of detention. Nor did the district court err in

characterizing the violations of the Speedy Trial Act as technical, rather than substantive.4

 The court based this conclusion

on its determination that the continuances that caused the violation of the Speedy Trial Act would have been excludable

under § 3161(h)(8)(B) if the court and the parties had more

carefully documented the reasons for the continuance. This

conclusion is supported by the record. 

4Contrary to Medina’s suggestion, this discussion was not an attempt by

the district court to apply harmless error analysis to its failure to make sufficient findings under § 3161(h)(8)(A) when it granted some of the continuances. Cf. Zedner, 547 U.S. at 509 (holding that “harmless-error review

is not appropriate” when findings under § 3161(h)(8)(A) are not made on

the record). The district court properly recognized that although the periods of delay caused by some of the continuances could not be excluded

from the Speedy Trial Act calculation, the “facts and circumstances of the

case” that led to a Speedy Trial Act violation were in context rather

benign. 

UNITED STATES v. MEDINA 4569
Finally, Medina argues that the district court erred in

assessing the third factor, the impact of reprosecution on the

administration of justice. Medina claims that the district court

should have dismissed the case with prejudice to penalize the

culture of poor compliance with the Speedy Trial Act within

the district court’s jurisdiction. Moreover, because the district

court stated that there was “no evidence that the Speedy Trial

Act violation was the result of bad faith on the part of the

government,” Medina contends that the court erroneously

determined that it could not enter a dismissal with prejudice

absent a finding of prosecutorial bad faith. Both arguments

are without merit. 

[14] First, the district court expressly considered the culture

of poor compliance, noting that more attention needed to be

paid to the “mandates of the Speedy Trial Act,” and stated

that both parties and the court itself needed to be more mindful in the future. Contrary to Medina’s argument, the district

court did not abuse its discretion by declining to dismiss the

indictment with prejudice based solely on this consideration.

See Taylor, 487 U.S. at 343. In Taylor, the district court was

reversed for abusing its discretion when it found no prejudice

to the defendant for a serious crime, but dismissed the indictment with prejudice based on the “lackadaisical” attitude of

the Government and the court’s desire to “send a strong message to the Government that unexcused delays will not be tolerated.” Id. at 343. Noting that the district court based its

decision solely on its concern over the government’s unexcused delay, the Court stated: “That factor alone, by definition

implicated in almost every Speedy Trial Act case, does not

suffice to justify barring reprosecution in light of all the other

circumstances present.” Id. Second, in considering the impact

of reprosecution on the administration of justice, the district

court acted well within its discretion in noting that there was

no evidence of bad faith on the part of the government.

Although the district court briefly mentioned the absence of

bad faith, the district court did not indicate that it considered

4570 UNITED STATES v. MEDINA
such a finding necessary in order to dismiss the case with

prejudice. 

[15] In sum, the district court considered the factors listed

in § 3162(a)(2), and its conclusions are supported by the

record. Therefore, the district court did not abuse its discretion in dismissing Medina’s indictment without prejudice. 

III

Although Medina established a one-day error in the district

court’s Speedy Trial Act determination, the error was harmless. Other than the one-day error, the district court did not err

in its calculation of the number of days excludable under the

Speedy Trial Act. Nor did the district court abuse its discretion in dismissing the indictment without prejudice.

AFFIRMED.

UNITED STATES v. MEDINA 4571