United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2357

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United States of America, *

*

Plaintiff - Appellee, *

* On Appeal from the United

v. * States District Court for the

* Eastern District of Missouri.

Taylor James Bloate, *

*

Defendant - Appellant. *

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Submitted: September 28, 2010

Filed: September 09, 2011

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Before RILEY, Chief Judge, BENTON, and GIBSON, Circuit Judges.

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BENTON, Circuit Judge.

The district court sentenced Taylor JamesBloate to 360 months’imprisonment.

He appealed, asserting a Speedy Trial Act violation and other trial and sentencing

errors. This court affirmed. See United States v. Bloate, 534 F.3d 893 (8th Cir.

2008) (“Bloate I”). The Supreme Court granted certiorari on the Speedy Trial issue,

reversed, and remanded. See Bloate v. United States, 559 U.S. ___, ___, 130 S. Ct.

The Honorable John R. Gibson retired from service on this court on January 1

26, 2011. This opinion is being filed by the remaining judges of the panel pursuant

to 8th Cir. Rule 47E.
1345, 1358 (2010). Concluding that the Speedy Trial Act was violated, this court

now reverses. 

I.

On August 24, 2006, Bloate was indicted. The initial order on pretrial motions

set a September 13 deadline for filing either motions or a memorandumattesting there

are no issues for pretrial motions. The order scheduled a September 20 hearing on

any pretrial motions or on the waiver of motions.

On September 7, Bloate moved for additional time to file pretrial motions. The

district court granted the motion that same day, extending the deadline from

September 13 to September 25, ordering:

[I]f the defendant chooses not to file any pretrial motions, counsel for

the defendant shall file with the Court, not later than September 25 . . .

, a memorandum attesting that there are no issues that the defendant

wishes to raise by way of pretrial motion.

The same order scheduled an October 4 hearing “on any pretrial motions or a hearing

on the waiver of motions.” Bloate filed a “WAIVER OF PRETRIAL MOTIONS” on

September 25, saying “Taylor Bloate . . . advises the Court there are no issues he

wishes to raise by way of pretrial motions.” On October 4, the district court

conducted a hearing. Finding the waiver knowing and intelligent, the court “grant[ed]

[Bloate] leave to waive [his] right to file motions.” 

The government filed motions in limine on February 23 and March 2, 2007. 

The court granted both motions after a hearing on March 5, the first day of trial. 

Bloate appealed the district court’s refusal to dismiss his indictment for a

violation of the Speedy Trial Act, arguing that the court erroneously excluded certain

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periods in counting the days from his indictment until his trial. This court disagreed

and affirmed. Bloate I, 534 F.3d at 897-900. The Supreme Court held that the time

to prepare pretrial motions is not automatically excluded under 18 U.S.C. §

3161(h)(1), and reversed this court’s automatic exclusion of the 28-day period from

September 7 through October 4. Bloate, 130 S. Ct. at 1358. On remand, this court

ordered supplemental briefs on the periods (1) from September 25 through October

4, and (2) from February 23 through March 5. 

II.

The Speedy Trial Act requires that a defendant’s trial begin within 70 days

from the indictment or the defendant’s initial appearance. See 18 U.S.C. §

3161(c)(1), (h). If not, the district court must, on the defendant’s motion, dismiss the

indictment. See 18 U.S.C. § 3162(a)(2). The Act automatically excludes “delay

resulting from any pretrial motion, from the filing of the motion through the

conclusion ofthe hearing on, or other prompt disposition of, such motion.” 18 U.S.C.

§ 3161(h)(1)(D); see United States v. Tinklenberg, ___ U.S. ___, ___, 131 S. Ct.

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2007, 2016 (2011) (holding that whether a pretrial motion actually caused or is

expected to cause delay of trial is irrelevant to the Speedy Trial Act). This court

reviews de novo the district court’s legal conclusions, its findings of fact for clear

error, and its ultimate determination for an abuse of discretion. See United States v.

Lucas, 499 F.3d 769, 782 (8th Cir. 2007) (en banc). 

After Bloate I, the Speedy Trial Act was amended. See Pub L. No. 110-406, 2

§ 13, 122 Stat. 4291. Previously codified at 18 U.S.C. § 3161(h)(1)(F), the pretrial

motion exclusion provision is now codified at 18 U.S.C. § 3161(h)(1)(D). As no

substantive changes were made to provisions relevant here, this court cites to the

current version of the Act. 

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In this case, 48 non-excludable days are not disputed. See Bloate I, 534 F.3d

at 897-98. The 17-day period from September 8 through September 24 is non- 3

excludable pretrial-motion-preparation time, as the district court did not “grant[] a

continuance for that purpose based on recorded findings ‘that the ends of justice

served by taking such action outweigh the best interest of the public and the

defendant.’” See Bloate, 130 S. Ct. 1358, quoting 18 U.S.C. § 3161(h)(7)(A). If

either period here – September 25 through October 4, or February 23 through March

5 – is non-excludable, the Speedy Trial Act was violated. 

A.

The government filed motions in limine on February 23 and March 2. The

district court granted both motions in a hearing on March 5, the first day of trial. The

time while a motion in limine is pending is excludable under the Speedy Trial Act. 

United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003). The period between

February 23 and March 5 is therefore excluded from the 70-day limit. 

B.

In excluding the time from September 7 through October 4 for pretrial motion

preparation, this court relied on the opening clause of § 3161(h)(1). See Bloate I, 534

F.3d at 897-98. In reversing, the Supreme Court did not consider “whether any other

exclusion would apply to all or part of the 28-day period.” Bloate, 130 S. Ct. at 1358. 

 

September 7 is excluded because that dayBloate moved to extend the pretrial- 3

motion deadline, which the district court immediately granted. See United States v.

Moses, 15 F.3d 774, 777 (8th Cir. 1994) (“both the date on which the motion was

filed and the date on which the motion was decided” are excluded under

subparagraph (D)). 

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The government argues that the period from September 25 through October 4

is excludable under § 3161(h)(1)(D) because Bloate’s waiver was a “motion for leave

to waive his right to file pretrial motions.” Bloate first counters that the government

waived this argument by not presenting it in the district court in response to his

motion to dismiss. The defendant bears the burden of proof on a motion to dismiss

under the Speedy Trial Act, “with the exception of the exclusion of time under 18

U.S.C. § 3161(h)(3) concerning the unavailability of the defendant or an essential

witness.” United States v. Aldaco, 477 F.3d 1008, 1017 (8th Cir. 2007), citing 18

U.S.C. § 3162(a)(2). Bloate’s motion to dismiss does not mention the filing of his

waiver of pretrial motions on September 25, or the hearing on October 4; Bloate took

the position that the entire period of time from September 7 to November 8 was nonexcludable time. The government’s response argued that the entire period from

September 7 through October 4 was excludable from the speedy trial clock. The

government did not waive its argument that the subsidiary period from September 25

through October 4 was excludable time under the Speedy Trial Act.

Bloate next objectsthat the government failed to raise this argument in the first

appeal. “The general rule is that, where an argument could have been raised on an

initial appeal, it is inappropriate to consider that argument on a second appeal

following remand.” United States v. Castellanos, 608 F.3d 1010, 1019 (8th Cir.

2010), quoting Kessler v. Nat’l Enterprises, Inc., 203 F.3d 1058, 1059 (8th Cir.

2000) (additional quotation marks omitted). This prudential rule applies less rigidly

against appellees, because doing so “would motivate appelleesto raise every possible

alternative ground and to file every conceivable protective cross-appeal, thereby

needlessly increasing the scope and complexity of initial appeals.” Castellanos, 608

F.3d at 1019. In his first appeal, Bloate argued that the district court erred in

excluding the entire period from September 7 through October 4 “as no provision in

the Speedy Trial Act allows for the exclusion of the time during which pretrial

motions were not filed.” (Original Appellant’s Br. 13) (emphasis in original). The

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government consistently argued that this entire period was excludable under §

3161(h)(1)(D). 

Rather than raising a new issue on remand, the government is formulating a

new argument in support of its position. See Castellanos, 608 F.3d at 1019

(distinguishing between raising a new issue on remand and making a new argument

within the scope of a higher court’s remand: “Although parties should present

alternative arguments whenever sound strategy dictates, the government in this case

was not required to anticipate every possible outcome on appeal and formulate a

responsive argument for each alternative.”);see also United States v. Tobin, 155 F.3d

636, 641 & n.5 (3d Cir. 1998) (rejecting argument that government waived a SpeedyTrial-Act exclusion because even if the government had not raised the issue, “our

affirmance of the decision can be premised on any legitimate ground, even one not

advanced below.”). Implicit in an order directing a lower court to engage in further

proceedings consistent with an opinion is the expectation that a lower court will

consider argument from both parties as to issues within the scope of the remand. 

Castellanos, 608 F.3d at 1020; see also Bloate, 130 S. Ct. at 1358 (remanding to this

court for further proceedingsto consider the government’s “argument” that the period

from September 25 to October 4 is still excludable in light of the Court’s opinion). 

The government has not waived its argument.

In a related argument, Bloate contendsthat this court’s previousstatement that

“Bloate never filed a pretrial motion” is the law of the case, thus precluding the

government’s argument here that his waiver was the functional equivalent of a

pretrial motion. Bloate I, 534 F.3d at 897. “The law of the case doctrine preventsthe

relitigation of a settled issue in a case and requires courtsto adhere to decisions made

in earlier proceedings in order to ensure uniformity of decisions, protect the

expectations of the parties, and promote judicial economy.” United States v. Bartsh,

69 F.3d 864, 866 (8th Cir. 1995). The doctrine applies only to actual decisions – not

dicta – in prior stages of the case. See United States v. Bates, 614 F.3d 490, 494 (8th

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Cir. 2010) (statement in prior decision was not the law of the case where the court

“[was] not asked to nor did [it] consider” the question in its prior decision); United

States v. Montoya, 979 F.2d 136, 138 (8th Cir. 1992) (same). In the first appeal, the

parties assumed that no motion wasfiled, and this court accordingly held that pretrial

motion preparation time is excludable under the opening clause of § 3161(h)(1). See

Bloate I, 534 F.3d at 898. The statement that Bloate never filed a pretrial motion is

dicta, and not the law of the case. 

Turning to the merits, the issue in this case is whether Bloate’s waiver of

pretrial motions is “any pretrial motion” under subparagraph (D). Subparagraph (D)

excludes “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.” 18 U.S.C. § 3161(h)(1)(D). 

The government’s interpretation of Bloate’s waiver – “a motion for leave to

waive his right to file pretrial motions” – has several faults. First, Bloate’s “Waiver

of Pretrial Motions” does not appear to be a motion. It states that “there are no issues

he wishes to raise by way of pretrial motions,” and that he agrees, after discussion

with his attorney, “not to raise any issues by way of pretrial motion.” Cf. United

States v. Bonilla-Filomeno, 579 F.3d 852, 856-57 (8th Cir. 2009) (“motion to set a

specific trial date” is a pretrial motion); United States v. Rojo-Alvarez, 944 F.2d 959,

966 (1st Cir. 1991) (holding that “when the court is presented with papers styled as

a motion, whether it ultimately determines that the filing is a pretrial motion or an

“other proceeding” under [current § 3161(h)(1)(H)], the court is entitled to exclude

4

at least the period of time during which it considers how to treat the filing.”).

 § 3161(h)(1)(H) concerns motions that require no hearing, which may only 4

be “under advisement” for 30 days of excludable time. See Henderson v. United

States, 476 U.S. 321, 329 (1986)

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Second, the district court treated the waiver as not being a motion. See United

States v. Rush, 738 F.2d 497, 506 (1st Cir. 1984) (“The district court did not treat the

proffer as a pretrial motion for purposes of (h)(1)[(D)], and we see no reason to do

so.”). Under the district court’s order on pretrial motions, Bloate had until September

25 to file “any pretrial motions” or “a memorandum attesting that there are no issues

that the defendant wishes to raise by way of pretrial motion.” The order also

scheduled an October 4 hearing “on any pretrial motions or a hearing on the waiver

of motions.” At the October 4 hearing, the court swore Bloate in, confirmed he was

waiving his right to file pretrial motions, informed him of the consequences of his

waiver, and concluded, “[the] Court will grant you leave to waive your right to file

motions.” Even at the hearing, the district court continued to distinguish between “a

memorandum” and “any pretrial motions.” The court did not say it was granting a

motion. 

The government cites no authority that a defendant needs the permission of the

court to waive the right to file pretrial motions under Rule 12 of the Federal Rules of

Criminal Procedure, or that a court is required to find whether any waiver is knowing

and voluntary. Criminal Rule 12(e) states: “A party waives any Rule 12(b)(3)

[“Motions That MustBe Made BeforeTrial”] defense, objection, orrequest not raised

by the deadline the court sets under Rule 12(c) or by any extension the court provides. 

For good cause, the court may grant relief from the waiver.” See United States v.

Frazier, 280 F.3d 835, 845 (8th Cir. 2002) (noting that “the failure to raise [an issue

that must be asserted in a pretrial motion ] in a timely pretrial motion results in

‘waiver’ of the matter”); see also United States v. Hohn, 8 F.3d 1301, 1305 (8th Cir.

1993) (noting that “motions excludable under [subparagraph (D)]include any pretrial

motion and are not limited to those motions enumerated” in Rule 12) (emphasis in

original). However, this court has never characterized a pretrial-motion “waiver” as

the intentional relinquishment or abandonment of a known right, rather than an

inadvertent forfeiture. See United States v. Thompson, 403 F.3d 533, 537 n.4 (8th

Cir. 2005) (noting that the Eighth Circuit has not decided whether a “waiver” caused

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by the failure to raise a suppression matter in a timely pretrial motion precludes plain

error review), citing Frazier, 280 F.3d at 845; see also 1A Charles A. Wright, et al.,

Federal Practice and Procedure Crim. § 193 (4th ed. 2010 & Supp. 2011)

(describing as “persuasive” the Seventh Circuit’s view that “the word ‘waiver’ in

Rule 12(e) does not carry the strict implication of an ‘intentional relinquishment of

a known right,’” and noting that the fact that the Rule allows a court for good cause

to grant relief from the waiver “makes it sound more like what we would normally

call forfeiture.”), quoting United States v. Johnson, 415 F.3d 728, 730 (7th Cir.

2005).

Third, “the term motion generally means ‘[a]n application made to a court or

judge for purpose of obtaining a rule or order directing some act to be done in favor

of the applicant.’” Melendez v. United States, 518 U.S. 120, 126 (1996), quoting

Black’s Law Dictionary 1013 (6th ed. 1990); cf. Hohn, 8 F.3d at 1304 (“A motion

is an application to the court for an order.”). A party’s submission – whether express

or implied, formal or informal – can be considered a “motion” for Speedy Trial Act

purposesif it contains a request for relief that requires court intervention. See United

States v. Arbelaez, 7 F.3d 344, 347-48 (3d Cir. 1993) (construing a letter from

defense counsel sent to a judge’s chambers requesting a continuance as “any pretrial

motion” because it contained a request for relief that required court intervention and

was treated by the parties as a motion); see also United States v. Williams, 557 F.3d

943, 951 n.3 (8th Cir. 2009) (construing pro se briefs in support of an earlier pro se

motion to dismiss for a Speedy Trial Act violation as pretrial motions), citing

Arbelaez, 7 F.3d at 345. 

Bloate’s waiver did not request leave to do anything, or in any way seek a

ruling, determination, or other response fromthe court – either expressly orimpliedly.

See Rush, 738 F.2d at 505–506 (finding that the filing of a memorandum and an

offer of proof is not a “pretrial motion” within the meaning of § 3161(h)(1)(D):

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“Instead, it is a submission of evidence which need not be admitted or excluded until

trial.”); United States v. Richardson, 421 F.3d 17, 28-29 (1st Cir. 2005) (noting that

“‘implied’ requests for a new trial date” are pretrial motions for purposes of

subparagraph (D)). The government’s interpretation ofBloate’s waiver has no limits,

because it allows any filing with the court to be deemed an implied motion. See

United States v. Harris, 491 F.3d 440, 443-44 (D.C. Cir. 2007) (“[T]he government’s

notice [of intent to use evidence] was not a motion, but [defendant’s] response

‘request[ing] that the Court preclude the admission of the above mentioned evidence

at trial’ was one, and it tolled the clock . . . from the date of its filing . . . .”); Rush,

738 F.2d at 505-06 (“If such submissions [a memorandum and offer of proof ] were

held to be pretrial motions . . . the Speedy Trial Act could easily be circumvented by

filing offers of proof at an early stage and then failing to press for prompt

disposition.”). 

The government’s expansive interpretation of “pretrial motion” contradictsthe

Supreme Court’s analysis of § 3161(h)(1)(D). In reversing, the Supreme Court

cautioned against reading too much into the statute, “because Congress knew how to

define the boundaries of an enumerated exclusion broadly when it so desired.” 

Bloate, 130 S. Ct. at 1353; see also id. at 1354-55 (rejecting a reading of the statute

that would “render even the clearest of the subparagraphsindeterminate and virtually

superfluous.”). In the Supreme Court’s most recent interpretation of § 3161(h)(1)(D),

it advised that subparagraph (D) is “best read” as measuring the time “actually

consumed by consideration of the pretrial motion,” an odd reading if the content of

a “motion” has nothing for a court to consider. Tinklenberg, 131 S. Ct. at 2014

(emphasis added). This court rejects a definition of “motion” so broad that any filing

can be deemed a motion. Cf. Bloate, 130 S. Ct. at 1354-55 (noting that a statute

should be construed so that no word shall be “superfluous, void, or insignificant”),

quoting Duncan v. Walker, 533 U.S. 167, 174 (2001). 

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In this case, the Supreme Court rejected expanding the “pretrial motion”

exclusion beyond a reasonable reading of its text, favoring ends-of-justice findings

for delays that do not fit squarely into the “pretrial motion” exclusion. See Bloate,

130 S. Ct. at 1357 (“Allowing district courts to exclude automatically such delays

would redesign this statutory framework.”). On remand, this court holds that the

period from September 25 through October 4 was “pretrial motion-related delay . .

. excludable only when accompanied by district court findings.” Bloate, 130 S. Ct.

at 1353 (emphasis added). As no such findings were made, this ten-day period is not

excludable. A total of 75 non-excludable days elapsed from Bloate’s indictment

through the date his trial began. Due to this violation of the Speedy Trial Act, the

district court erred in denying Bloate’s motion to dismiss his indictment. 

III.

Although the Act requires dismissal of the indictment, the district court may

determine, under 18 U.S.C. § 3162(a)(1), whether the dismissal is with or without

prejudice. See United States v. Dezeler, 81 F.3d 86, 89 (8th Cir. 1996). 

The judgment isreversed, and the case remanded to the district court to dismiss

the indictment and determine whether dismissal should be with or without prejudice.

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