* Chief Judge of the Eastern District of Texas, sitting by

designation.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________

No. 92-5076

_______________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

DAVID NORMAN BLACKWELL,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________________________________________________ (January 6, 1994)

Before KING and JOLLY, Circuit Judges, PARKER, * District Judge.

Parker, District Judge:

Defendant-Appellant David Norman Blackwell (Blackwell) was

convicted of imperson ating a federal officer, in violation of 18

U.S.C. § 913. He has presented us with four issues on appeal:

(1) whether the trial court erred in failing to grant

the defendant-appellant's motion to dismiss for violation

of the Speedy Trial Act (the Act);

(2) whether the defendant-appellant was denied effective

assistance of counsel;

(3) whether the evidence presented at trial was

insufficient on which to find the defendant-appellant

guilt y beyond a reasonable doubt of the crime of

impersonating a federal officer;

and1 Specifically, the Act provides that:

In any case in which a plea of not guilty is

entered, the trial of a defendant charged in an

information or indictment with the commission of an

offense shall commence within seventy days from the

filing date (and making public) 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) (emphasis added).

2 (4) whether the trial court misapplied the United States

Sentencing Guidelines when it sentenced the defendantappellant.

Because we hold that the trial court erred in failing to grant

the defendant-appellant's motion to dismiss on Spee dy Trial Act

violation grounds, and accordingly reverse and render a dismissal

of this case with prejudice, we have no occasion to address

Blackwell's other arguments on appeal.

I. The Facts and Circumstances of This Case and 18 U.S.C. § 3161

Defendant-Appellant Blackwell was indicted on March 20, 1991

f or violating 18 U.S.C. § 913 (impersonating a federal office r),

arrested on this charge on September 20, 1991, and brought before

a United States Magistrate Judge for his initial appearance on the

charge on October 3, 1991. Blackwell was tried on June 29, 1992.

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

, requires that

federal criminal defendants pleading not guilty be tried within

seventy days of their indictment or their first appearance before

a judicial officer, whichever occurs last. 18 U.S.C. § 3161

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

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

1989). 1 Accordingly, the Speedy Trial Act's "clock" in this case

started running October 3, 1991, as Blackwell entered a plea of not3

guilty at his arraignment of October 17, 1991.2 The Act provides that the accrual of the

70 days will be tolled under particular

circumstances, such as when motions are

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.

United States v. Willis , 958 F.2d 60, 62 (5th Cir. 1992) (citing

18 U.S.C. § 3161 (h)(8)).

4 The district court initially set Blackw ell's trial for

November 25, 1991.

F rom October 3, 1991, the Speedy Trial Act clock ran

uninterrupted for thirty-one days

-- until it was first "stopped,"

or perhaps more accurately, "paused" in accordance with the Act's

excludable time provisions, on November 4, 1991. 2

On November 4, 1991, Blackwell and his co-indictee and thenco-defendant (later severed), Michael Kayne McDonald , filed a

motion for continuance for sixty days. Along with this motion for

continuance, the defendants filed a "waiver" of their personal

speedy trial rights under the Speedy Trial Clause of the Sixth

Amend ment and under the Speedy Trial Act. This November 4, 1991

motion was quite "boilerplate" -- stating in conclusory fashion

only that: "Defendants are in need of additional time to

adequately prepare for their defense and the Assistant United

States Attorney does not Oppose this request" (motion paragraph

t hree); and "Defendants and Defendants [ s ic ] counsel request a

sixty (60) day continuance[.] Defendants attach hereto a 'waiver

of rights' to a speedy trial" (motion paragraph four).5

This motion paused the Speedy Trial Act clock for three days

-- from and including November 4, 1991 (when the motion was filed),

through and including November 6, 1991 (when the tria l court

entered an order granting the mot ion). S ee 18 U.S.C. § 3161

(h)(1)(F) (explaining that among the periods of delay to be

excluded in computing the time within which the trial of any

offense contained in an information or indictment must commence is

"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"). S ee also e.g., United States v.

Kington

, 875 F.2d 1091 (5th Cir. 1989) (explaining that when the

time is paused on the Speedy Trial Act clock due to the pendency of

a motion, that means that all the days be tween and including the

day of commencement and the day of termination of the particular

motion proceedings are excluded from the computat ion of the time

limitations specified in § 3161). However, the government is wrong

in its contention that the days during the continuance countenanced

in this November 6, 1991 order are properly "excludable" from the

Speedy Trial Act's seventy day calculus. The government's argument

notwithstandi ng, we cannot regard the trial court's November 6,

1991 order as satisfying the Act's ends of justice requirement

imposed by the Act in order for the duration of such a continuance

itself to be deemed excludable.

The Speedy Trial Act is plain-speaking. The Act states that

among the periods of delay properly excluded from the trial court's

computation of the time within which the trial of an offense3 Presumably in its "ordinary course," the trial court reset

Blackwell's new trial date through a minute entry to the docket

of January 8, 1992 . Through this minute entry, the trial court

on January 8, 1992 reset Blackwell's trial for May 26, 1992

.

6 brought by way of an information or indictment must be commenced,

is:

(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 cont inuance on the basis of his findings

that the ends of justice served by taking such action

outweigh the best interest of the p ublic and the

defendant in a speedy trial. N o such period of delay

resulting from a continuance gr anted 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 findi ng that the ends of justice served by

the granting of such continuance outweigh the best

interests of the public and the defendan t in a speedy

trial.

18 U.S.C. § 3161 (h)(8)(A) (emphasis added). S ee also United

States v. Willis , 958 F.2d 60, 62 (5th Cir. 1992).

The November 6, 1991 order stated that the trial court

" considered" the defend ants' November 4, 1991 motion for

continuance, and, having so considered it, the trial court

determined that the pre-trial conference and the trial date

previously scheduled for the case needed to be "upset and [will be]

reset in the or dinary course." 3 The specific language in § 3161

(h)(8)(A) states periods o f delay are not excludable unless the

court sets forth ends of justice findings either orally or in

writing. The record in this case does not reflect such findings.

See United States v. Saltzman

, 984 F.2d 1087, 1090-1091 (10th Cir.)

(reaffirming "the importance of enunciating the 'ends of justice'7

findings;" and quoting United States v. Doran

, 882 F.2d 1511, 1515

(10th Cir. 1989), to the effect that "[f]ailure to address these

issues on the record creates the unneces sary risk of granting

continuances for the wrong purposes, and encourages over-use of

this narrow exception."), cert. denied

, -- U.S. --, 113 S.Ct. 2940

(1993). S ee also United States v. Rodriguez

, 824 F. Supp. 657, 661

(W.D. Tex. 1993) ("Other courts have recognized that when a judge

gives no indication that a continuance was granted upon a balancing

of the factors specified by the Speedy Trial Ac t, the danger is

great that every continuance will be converted retroactively into

a continuance creating excludable time, which is clearly not the

intent of the Act.") (citing cases).

With regard to the defendants' "waiver" of their Speedy Trial

Clause and Speedy Trial Act rights, as this Court explained in

Willis :

In K ington

, we joined al l other circuits which have

addressed the question in recognizing that the provisions

of the Speedy Trial Act are not w aivable by the

defendant.[ ] The Act is intended both to protect the

defendant from undue delay in his trial a nd to benefi t

the public by ensuring that criminal trials are quickly

resolved. Allowing 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. T he Act's central intent to

protect society's interests requires that a defendant's

purported waiver of his rights under the Act be

ineffective to stop the speedy trial clock from running.

United States v. Willis

, 958 F.2d 60, 62 (5th Cir. 1992) (citations

omitted; emphasis added). S ee also United States v. Saltzman

, 984

F.2d 1087, 1091 (10th Cir.) ("The Government contends that Mr.

Saltzman knowingly waived his right to a speedy indictment. This8

contention fallaciously assumes a defendant has the autho rity to

waive the speedy indictment provision. The right to a speedy

i ndictment belongs to both the defendant and society.[ ]" * * *

An effective waiver occurs only if the judge considered the defined

factors and concluded the ends of justice are served by an

acceptance of the defendant's waiver.") (citation omitted), cert.

denied

, -- U. S. --, 113 S.Ct. 2940 (1993). C ompare Barker v.

Wingo

, 407 U.S. 514 (1972) (holding that criminal def endants m ay

waive their fundamental Sixth Amendment right to a "speedy trial,"

despite the facts ( inter alia ) that: "[t]he inability of courts to

provide a pro mpt [criminal] trial has contributed to a large

backlog of cases in urban courts which, among other things, enables

defend ants to negotiate more effectively for pleas of guilty to

lesser offenses and otherwise manipulate the system.[ ]") (citing

R EPORT OF THE P RESIDENT ' S C OMMISSION ON C RIME IN THE D ISTRICT OF C OLUMBIA

256 (1966)).

Also, with regard to Defense Counsel's purported " need" for

more time to prepare for trial, the Act is clear that the trial

court must consider -- as part of its ends of justice analysis in

a case such as this one, which is not so unusual or complex that it

is (facial l y) unreasonable to expect adequate preparation for

pretrial proceedings or for trial itself within the time limits

established by th e Act's § 3161 (c)(1) -- whether the failure to

grant the continuance "would deny counsel for the defendant or for

the Government the reasonable time necessary for effective9

preparation, taking into account the exercise of due dili gence

. "

18 U.S.C. § 3161 (h)(8)(B)(ii & iv) (emphasis added). The record

in this case does not reflect that Defense Counsel's exercise of

due diligence was considered by the trial court.

The Act calls upon the federal district courts to undertake

contemporaneous, on-the-record, "ends of justice" analyses before

they can count their continuances as excludable time under the

Speedy Trial Act. The Act unambiguously and unconditionally tells

the tri al courts w hat they must consider in the course of such

analyses. In light of the lack of an "ends of justice" analysis by

the trial court in this case, the time during the continuance

granted by the trial court's order of November 6, 1991 was not

excludable from the seventy day time limitation imposed by the

Speedy Trial Act. Thus, the Act's clock kept running without

interruption for forty more days

-- from November 7, 1991 until

(but not including) December 17, 1991, the day the government filed

a motion (to sever the defendants) pausing the clock.

The Speedy Trial Act's seventy day time limitation was passed

in Blackwell's case on Sunday, December 15, 1991; December 15, 1991

was the seventieth non-excludable day to pass from the day of

Blackwell 's initial appearance (October 3, 1991). As of Monday,

December 16, 1991, Defendant-Appellant and the public were denied

their entitlement to Blackwell's speedy trial.

Today we reemphasize that Willis provides a bright line for

the district courts to follow. In the absence of contemporaneous,

articulated on-the-record findings for extending the time for trial10

past seventy days amounting to an acceptable ends of justice

analysis, Defendant-Appellant is entitled to have his case

dismissed. S e e 18 U.S.C. § 3162 (a)(2). This is not a case in

which the defendant has induced the district court to misapply the

Act and then attempted to rely upon that error in order to obtain

a dismissal of indictment. C ompare Willis, supra at 63 (noting

that "[d]ismissal 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

dismissal") (citing United States v. Eakes

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

Cir. 1986); emphasis added).

II. The Facts and Circumstances of This Case and the

Dismissal With Prejudice Sanction Under 18 U.S.C. § 3162

The dismissal of an indictment required by the Act may be

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

it is gen erally true that the t rial court is best situated to

decide whether to dismiss indictments with or without prejudice in

light of a Speedy Trial Act violation ( compare e.g., Willis, supra

at 64), in this particular case we hold that the dismissal of the

indictment against Blackwe ll must be with prejudice. Under the

facts and circumstances of this case, it is obvious that there

simply is no acceptable alte rnative to granting Blackwell a

dismissal of his indictment with prejudice.

We are again well guided by the Act. In determining whether

to dismiss a case with or without prejudice, § 3162 (a)(2) mandates

that the courts shall consider (a long with any other relevant

factors in the particular case not expressly identified by the11

statutory provision) each of the following factors:

1. the seriousness of the offense;

2. the facts and circumstances of the case which led to

the dismissal;

and

3. the impact of a reprosecution on the administration

of this chapter and on the administration of justice.

We have caref u lly considered all of the statutorily-specified

factors of consideration. Defendant-Appellant Blackwell has been

incarcerated on the charge of impersonating a federal officer since

his Sept ember 30, 1991 arrest on the charge. Thus, while the

maximum time of incarceration Blackwe ll could receive for

committing the offense of impersonating a federal officer is three

years ( see 18 U.S.C. § 913), he has already been incarcerated for

over two years. If we remanded this case to the trial court for it

to determine whether to dismiss the indictment ag ainst Blackwell

with or without preju dice, and the trial court actually s elected

the without prejudice "alternative," a reprosecution would work a

manifest injustice upon Blackwell

-- given the time he has already

effectively "served" for this conviction which we reverse today due

to the Speedy Trial Act violation in this case.

III. Conclusion

For the foregoing reasons, we REVERSE the conviction and

sentence of Defendant-Appellant Blackwell and RENDER the one count

indictment against Blackwell at issue DISMISSED WITH PREJUDICE

.

It Is So Ordered.