United States v. Medina

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30477
Plaintiff-Appellee,
v.  D.C. No.
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-
MARTIN MEDINA, Jr., RSL
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
4550 UNITED STATES v. MEDINA
COUNSEL
William C. Broberg, Seattle, Washington, for the defendant-
appellant.
UNITED STATES v. MEDINA 4551
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 co-
defendants 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 Con-
treras pleaded guilty on September 20, 2004.
4552 UNITED STATES v. MEDINA
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 Janu-
ary or early February of 2005. Counsel gave three grounds for
the continuance request: (1) the government had recently pro-
vided 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 continu-
ance, 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 inter-
preted 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, which-
ever 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:
UNITED STATES v. MEDINA 4553
§ 3161(h)(1)(F) and (J) (governing delays attributable to pre-
trial 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 comput-
ing 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 fil-
ing 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 concern-
ing the defendant is actually under advisement by the
court.
4554 UNITED STATES v. MEDINA
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
UNITED STATES v. MEDINA 4555
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 Hen-
derson, 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 comput-
ing 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 accor-
dance with this paragraph shall be excludable under this sub-
section 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.
4556 UNITED STATES v. MEDINA
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 sub-
paragraph (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 jus-
tice.
(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 com-
plex 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 coun-
sel, or would deny counsel for the defendant or the attor-
ney for the Government the reasonable time necessary for
effective preparation, taking into account the exercise of
due diligence.
UNITED STATES v. MEDINA 4557
deny the defendant reasonable time to obtain counsel, would
unreasonably deny the defendant or the Government continu-
ity 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.3 Id.
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)).
3
The exception to this rule is that “the Government shall have the bur-
den 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 unavaila-
bility of the defendant or an essential witness.”
4558 UNITED STATES v. MEDINA
B
As explained in its order of April 8, 2005 (dismissing
Medina’s indictment without prejudice), the district court con-
cluded that 402 days had elapsed from the filing of the indict-
ment 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 continu-
ance ensured “continuity of counsel.” § 3161(h)(8)(B)(iv).
However, even taking into account these and other exclud-
able 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.
UNITED STATES v. MEDINA 4559
Next, in considering the facts and circumstances leading to
the Speedy Trial Act violation, the court agreed with Medi-
na’s statement that the delay in bringing him to trial was seri-
ous, 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. More-
over, 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 circum-
stances leading to the Speedy Trial Act violations did not war-
rant 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 con-
cluded that there was “no evidence that the Speedy Trial Act
violation was the result of bad faith on the part of the govern-
ment.” 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 dis-
4560 UNITED STATES v. MEDINA
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 calcula-
tion of the number of days that should be excluded in comput-
ing 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 sec-
tion 3161(h),” generally lies with the defendant. § 3162(a)(2).
We review the district court’s decision to dismiss an indict-
ment 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 fac-
tors 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
UNITED STATES v. MEDINA 4561
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 pre-
trial 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 deter-
mines 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 classifi-
cation, 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.
4562 UNITED STATES v. MEDINA
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 estab-
lishing 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 Con-
treras’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 situa-
tions 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.
 UNITED STATES v. MEDINA 4563
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, Con-
treras’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 Con-
treras’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 Con-
treras’s suppression motions were resolved.
Medina contends that Sutter should be interpreted as hold-
ing, 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 indi-
cates 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
4564 UNITED STATES v. MEDINA
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 dis-
pose of [them],’ ” see Sutter, 340 F.3d at 1032 (quoting Hen-
derson, 476 U.S. at 331), until the conclusion of an
evidentiary hearing. The period during which they were pend-
ing 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 pre-
trial motions were filed on March 31, 2004. However, the
one-day error was harmless. Because the district court ulti-
mately 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
UNITED STATES v. MEDINA 4565
court’s analysis of the factors set forth in § 3162(a)(2) sug-
gests that a one-day difference would have affected its ulti-
mate 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 exclud-
able “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. There-
fore, we must reject Medina’s argument that the district court
erred in excluding time from the date Contreras filed the pre-
trial 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
4566 UNITED STATES v. MEDINA
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 defen-
dant 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 fac-
tors 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
UNITED STATES v. MEDINA 4567
the exercise of due diligence.” § 3161(h)(8)(B)(iv). This dis-
cussion of the statutory factors is adequate to support a con-
tinuance 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 fac-
tor 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. Craw-
ford, 982 F.2d 199, 204 (6th Cir. 1993)), because the district
court had previously signed an order and stipulation contain-
ing the facts later relied on by the court in the motion to dis-
miss. 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 responsi-
bilities by adopting stipulated factual findings which establish
valid bases for Speedy Trial Act continuances.”). We con-
clude 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.
4568 UNITED STATES v. MEDINA
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 preju-
dice, “the court shall consider, among others, each of the fol-
lowing 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 fac-
tors,” 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 reprosecu-
tion. 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
UNITED STATES v. MEDINA 4569
explain its reference to the “toll that this process has taken”
on Medina, and erred in describing the Speedy Trial Act vio-
lations 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 deten-
tion 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 evi-
dence that the Defendant will suffer any prejudice as a result
of the delay” indicated the court’s conclusion that the out-
come of Medina’s case was not prejudiced by the continu-
ances; 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 tech-
nical, rather than substantive.4 The court based this conclusion
on its determination that the continuances that caused the vio-
lation 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.
4
Contrary to Medina’s suggestion, this discussion was not an attempt by
the district court to apply harmless error analysis to its failure to make suf-
ficient findings under § 3161(h)(8)(A) when it granted some of the contin-
uances. 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 peri-
ods 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.
4570 UNITED STATES v. MEDINA
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 mind-
ful 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 indict-
ment with prejudice based on the “lackadaisical” attitude of
the Government and the court’s desire to “send a strong mes-
sage to the Government that unexcused delays will not be tol-
erated.” Id. at 343. Noting that the district court based its
decision solely on its concern over the government’s unex-
cused 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
UNITED STATES v. MEDINA 4571
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 discre-
tion 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 harm-
less. 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 discre-
tion in dismissing the indictment without prejudice.
AFFIRMED.