United States District Court, Northern District of Illinois, W.D
May 18, 1984
UNITED STATES OF AMERICA,
JOSEPH F. WOLLSCHLAGER.
The opinion of the court was delivered by: Roszkowski, District Judge.
Before the court are defendant's motions in arrest of judgment,
for a new trial and for judgment of acquittal after discharge of
the jury. The principal basis for defendant's various motions is
the alleged violation of the Speedy Trial Act. 18 U.S.C. § 3161
et seq. For the reasons set forth herein, defendant's motion in
arrest of judgment is allowed and the subject indictment is
dismissed without prejudice. Defendant's remaining motions are
On August 19, 1983, the defendant was indicated for income tax
fraud. On August 26th, he was arraigned before the Magistrate.
Also present at his arraignment was a special legal advisor
appointed by the Magistrate to assist him with procedural
matters. At his arraignment, the defendant
requested three to seven weeks to retain his own counsel. After
inquiring into the need for such an extended delay, the
Magistrate granted a three week continuance, making an oral
finding that "[j]ustice would be served by granting the motion of
the defendant so that he could obtain counsel, since he believes
that he needs particular counsel because of the particular
questions and issues which are involved in this matter . . ." A
new status hearing was set for September 16th.
At the September 16th status hearing, the defendant announced
that he had not yet retained counsel. At the defendant's request,
an additional continuance was granted until September 30th. Since
no transcript is presently available from that hearing, it is
unclear whether the Magistrate made any oral findings similar to
those he set forth at the hearing on September 16th. No written
findings appear in the record.
At the September 30th status hearing, the defendant announced
that he had decided to proceed pro se. The Magistrate ordered the
defendant's appointed advisory counsel to remain in the case to
assist the defendant. The parties were ordered to undertake a
Local Rule 2.04 conference by October 14th. The Magistrate
further ordered that the defendant was given ten days thereafter
to file his pretrial motions. The government was given ten days
to respond and the defendant was given five days to reply. The
next status hearing was set before the Magistrate on November
On October 17th, the parties proceeded with their discovery
conference. On October 31st and November 1st, the defendant filed
seventeen pretrial motions along with various supporting
memorandums. Two of the supporting memorandums exceeded fifteen
pages. The government failed to file any written response or
request for a continuance within ten days.
On November 15th, in order to facilitate the defendant's
business travel abroad, the November 18th status hearing was
stricken. A new status hearing was set for December 2nd. While
the government had not yet responded to the defendant's pending
motions, no motion for a continuance was brought to the
At the December 2nd status hearing, the Magistrate granted the
government's oral request for forty additional days in which to
reply to the defendant's pending motions. The defendant stated he
had no objection to the continuance. Finally, the Magistrate
ordered the parties to appear before this court for a status
hearing on January 13, 1984.
On January 13th, the defendant filed a motion and supporting
memorandum in excess of fifteen pages relating to the appointment
of a non-attorney as the counsel of his choice. The government,
which had not yet responded to the defendant's previous motions,
orally requested additional time to respond to all of the
defendant's pending motions. The reason given for the request was
the illness of the Assistant United States Attorney assigned to
the case. This court granted the government until January 23rd to
file its response to the defendant's motion for the appointment
of counsel and gave the defendant until February 3rd to reply.
The defendant, accompanied by his appointed advisor, again voiced
no objection to the briefing schedule. Finally, the court set a
firm trial date of February 27th.
On January 25th, still not in receipt of any government
response to the pending motions, the court set the case for a
status hearing on February 17th. In the interim, on February
13th, the court ruled upon the defendant's pending motions; in
particular, the court denied the defendant's motion for the
appointment of a non-attorney counsel.
At the conclusion of the status hearing on February 17th, the
court entered an order providing:
The court finds that the ends of justice will be
served and outweigh the best interests of the public
and defendant in a speedy trial in order to insure
that defendant's counsel is given adequate time to
prepare the defense of this case.
Therefore the time between August 26, 1983 and
February 13, 1984 is excludable pursuant to T.
18 U.S.C. § 3161(h)(8).
On February 24th, the defendant filed a motion for a
continuance alleging he needed additional time to adequately
prepare his case for trial. Specifically, defendant alleged he
"had expected the court to grant his motion for counsel of his
choice, and had consulted with said individual in preparation for
trial." As a result of the court's ruling, the defendant alleged
he had "not had adequate time to confer with court appointed
counsel." Because his appointed counsel had been assisting him
since his arraignment and because of the late date of his motion,
defendant's motion for a continuance was denied.
On February 27th, the defendant moved the court to reconsider
its excludable time order of February 17th and moved to dismiss
his indictment based upon the government's failure to comply with
the Speedy Trial Act. Both motions were denied. On February 27th,
the jury was impaneled and the defendant was granted a recess for
the remainder of the day. Evidence was heard by the jury on
February 28th and 29th. On March 1st, the jury returned a guilty
verdict on all counts.
A. The Provisions of the Act
Title 18, U.S.C. § 3161, provides, in relevant part:
(c)(1) 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 date the defendant has appeared before a judicial
officer of a court in which such charge is
pending. . . .
(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
(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 conclusion of
the hearing on, or other prompt disposition of,
(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.
(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 . . . 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 . . . shall be excludable . . . 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 interest of the
public and the defendant in a speedy trial.
The exclusions contained in § 3161(h)(1), including subsections
(F) and (J), are automatic and do not require the entry of an
"ends of justice order" pursuant to § 3161(h)(8). United States
v. Cobb, 697 F.2d 38
, 41-42 (2nd Cir. 1982). Both subsections (F)
and (J) apply to pretrial motions, but the scope of their
application is different. As the court explained in United States
v. Mers, 701 F.2d 1321
(11th Cir.), cert. denied, ___ U.S. ___,
104 S.Ct. 482
, 78 L.Ed.2d 679 (1983):
The Judicial Guidelines at 33 recommend that the
`exclusion for delay resulting
from pretrial motions be treated as ending at such
time as the court has received everything it expects
from the parties before reaching a decision — that
is, such date as all anticipated briefs have been
filed and any necessary hearing has been completed.
Thereafter, the matter should be treated as "under
advisement" and subject to the rules of subparagraph
(J).' Section 3161(h)(1)(F) and Section 3161(h)(1)(J)
dovetail; the former ends when the latter begins. Id.
There are, however, limitations upon the time which may be
excluded pursuant to § 3161(h)(1)(F). In United States v. Horton,
705 F.2d 1414
(5th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct.
496, 78 L.Ed.2d 689 (1983), for example, the court noted that the
"prompt disposition" language of § 3161(h)(1)(F) "might justify,
in an egregious case, disregarding [as excludable] some portion
of the pendency period." Id. at 1416. See also United States v.
Cobb, 697 F.2d 38
, 43-44 (2nd Cir. 1982). One court has
suggested, based upon the comments of the drafters, that under
some circumstances periods beyond the briefing schedules provided
by the local rules might not be excludable. United States v.
Novak, 715 F.2d 810
, 819-20 (3rd Cir. 1983), cert. denied, ___
U.S. ___, 104 S.Ct. 1293
, 79 L.Ed.2d 694 (1984). In Novak, the
court pointed out:
Congress recognized that `without basic standards for
prompt consideration of pretrial motions', the
liberal exclusion under the 1979 amendments to
subsection (F) `could become a loophole which could
undermine the whole act.' S.Rep. No. 96-212, 96th
Cong., 1st Sess. 33-34 (1979). Instead of imposing
rules on the courts to limit such abuse, Congress
encouraged the courts to use their local rules `to
set uniform standards for motion practice.' Id.
However, Congress did not leave the courts unaware
of the specific abuse about which it was concerned.
The Senate Committee reported that local court rules
should guide the courts in fixing both a starting
date and an ending date for the period of exclusion.
The Committee specifically noted that it did not
`intend that additional time be made eligible for
exclusion by postponing the hearing date . . . of the
motions beyond what is reasonably necessary.' Id. at
819-20 (emphasis in original).
Title 18, U.S.C. § 3162(a)(2) provides in relevant part:
If a defendant is not brought to trial within the
time limit required by section 3161(c) as extended by
section 3161(h), the information or indictment shall
be dismissed on motion of the defendant. . . . 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. . . .
Consistent with this, a determination that the case is to be
dismissed without prejudice would permit the retrial of the
defendant only upon the obtaining and filing of a new indictment.
United States v. Perez-Reveles, 715 F.2d 1348
, 1353 (9th Cir.
B. Overview of Excludable and Non-Excludable Time
In the present case, 184 days elapsed between the defendant's
indictment on August 26, 1983 and the impaneling of the jury on
February 27, 1984. It is clear that the initial twenty-one day
continuance requested by the defendant, the period between August
26th and September 16th, was excludable under § 3161(h)(8)(A).
The defendant raises no objection to that continuance.
In addition, it is clear that the subsequent continuance
requested by the defendant and granted by the Magistrate, from
September 16th to September 30th to obtain private counsel, could
have been excluded pursuant to § 3161(h)(8)(A). The record is
unclear, however, as to whether
the Magistrate set forth the requisite oral findings necessary to
render that period excludable under the Act.*fn1 In any event, the
following thirty day period, the time between September 30th and
October 31st, when the defendant filed his initial motions, was
Under the Magistrate's September 30th order, the government was
given ten days to respond to the defendant's motions. Thus, the
government's responses were due on November 11th, ten days after
the defendant filed his last set of motions on November 1st.
Under the applicable decisions, the time between November 1st and
November 11th was excludable pursuant to § 3161(h)(1)(F). On
November 11th, with the government's failure to file a brief, all
anticipated briefs had been filed. At that point, the matter was
taken under advisement pursuant to § 3161(h)(1)(J). Thus, barring
any other action, the Magistrate had a maximum of thirty
excludable days, until December 11th, to render a decision.
On December 2nd, however, the government requested an
additional forty days, until January 11, 1984, to file a response
to the defendant's motions. While the defendant voiced no
objection to the government's request, the court, for reasons
discussed in more detail later, concludes the period between
December 11, 1983 and January 13, 1984, was not excludable
pursuant to § 3161(h)(1)(F). Thus, by the time the parties
appeared before this court for the status hearing on January
13th, thirty-two additional non-excludable days had expired.
At the status hearing scheduled for January 13th, the defendant
filed an additional motion requesting the appointment of a
non-attorney as the "counsel" of his choice. The government
requested time to respond to that motion along with additional
time to respond to the defendant's previous motions. The court
allowed the government ten days, until January 23rd, to respond
to the defendant's motion for the appointment of counsel of his
choice. Thus, the period between January 13th and January 23rd
was excludable pursuant to § 3161(h)(1)(F). On January 23rd, with
the government's now predictable failure to file a response, all
anticipated briefs had been filed. At that point, the matter was
taken under advisement pursuant to § 3161(h)(1)(J). Thus, barring
any other action, the court had a maximum of thirty excludable
days, until February 22nd, to render a decision.
On February 13th, the court issued a decision on all pending
motions. Thus, the excludable time ended on that date. On
February 24th, the defendant filed several motions which were
orally ruled upon from the bench. Assuming that day was also
excludable, twelve additional non-excludable days elapsed between
February 13th and February 27th, when the jury was impaneled.
Thus, even assuming the second fourteen day continuance granted
by the Magistrate was excludable, seventy-four non-excludable
days, four more than are allowed by the Act, had expired on the
day the jury was impaneled.
C. The Non-Excludable Delay
As noted previously, the crucial period for purposes of the
present motions is the time between December 11, 1983, when, in
the court's view, the defendant's pending motions were no longer
excludably under advisement, and January 13, 1984, when the
defendant's subsequent motion triggered an additional excludable
delay. The government contends the forty day extension granted by
the Magistrate rendered the time between December 2, 1983 and
January 11, 1984 excludable pursuant to § 3161(h)(1)(F). On
January 11, 1984, with the government's failure to file a brief,
all anticipated briefs had been filed. At that point, the
government would presumably contend the matter was once again
under advisement pursuant to § 3161(h)(1)(J).
Defendant's principal argument to the contrary apparently
focuses upon the period between November 11, 1983, when the
government's response was originally due, and January 13, 1984,
when he filed his subsequent motion. Defendant argues that the
government should not be allowed to request such an extended
briefing schedule only to decide against filing any response.
Pointing out that at trial the government labeled most of his
positions as being "totally without merit," the defendant
contends the government's request for such an extended period in
which to respond to his motions was an intentional attempt to
deprive him of his right to a speedy trial.
In the court's view, there is substantial support for the
defendant's position. In Novak, the court recognized that
extensions should not be granted beyond what is reasonably
necessary to respond to pending motions. Ordinarily, the court
recognized that the local rules of the forum would govern what is
Local Criminal Rule 2.04c provides that "[w]ithin ten (10) days
after receipt of [a motion and brief] the opposing party shall
file an answering brief." The rule also provides, however, that
"[t]he court may . . . shorten or extend the time fixed by the
Rule for the filing [of supporting, answering or reply briefs]."
In the present case, the standard time authorized by the rule was
exhausted on November 11th. Thus, in light of Novak, the issue
before the court is whether the additional time extended by the
Magistrate was "reasonably necessary" to respond to the subject
In determining whether the extension granted by the Magistrate
was reasonably necessary, the court is admittedly endowed with
the special advantage of hindsight. From this vantage, it is
clear that the time requested by the government was not
reasonably necessary to respond to the defendant's pending
motions. From the court's own resolution of the motions, it is
clear that the time allowed by the local rules should have been
sufficient for the government to respond to the defendant's
Even under the apparently stricter Horton standard, the court
concludes the continuance should not be excludable. In the view
of this court, the facts of this case present the type of
egregious circumstances the Horton court envisioned as warranting
a retrospective determination that time was not excludable.
Anytime the government requests an extension of time in a
criminal case, it is under an obligation to make certain the
basis for that continuance is well founded. 18 U.S.C. § 3162
(b)(2), (3) and (4). Here, the government failed to meet that
At the time the forty day extension was requested, the
government had already been in possession of the defendant's
motions for a month. By that time, the government should have
ascertained that the motions required either a short response or
no response at all. To feel justified in requesting an additional
extension of time amounting to well over half the maximum seventy
day period allowed by the Act, the government should have been
certain of the nature of the defendant's motions.
Finally, despite the requested extension, the government failed
to file any response. Then, despite its failure to file a brief,
the government appeared at trial with numerous copies of
decisions labeling the defendant's positions as meritless. Were
it not for the government's pattern of negligent behavior in this
case, including its failure to respond to the defendant's
post-trial motions until twenty days after its response was due,
the court might be inclined to conclude the requested extension
was a wilful attempt to delay the subject trial. Whether the
government's conduct is labeled as negligent or wilful, however,
is of minor importance. In either event, the extension of time
requested by the government on December 2nd should not be
excluded. Instead, the period of excludable time should end
thirty days after the government's original response was due.
Thus, the time between December 11th, thirty days after the
government's response was originally due, and January 13th, the
day the defendant's subsequent motion triggered another
excludable period, is not excludable.
By this decision, the court does not intend to be at all
criticalof the Magistrate's handling of the subject motions. The
Magistrate acted reasonably in eliciting an explanation of the
need for the extension and in affirmatively inquiring into the
existence of any objection by the defendant.*fn3 At the time the
extension was granted, the Magistrate could not possibly have
been aware that the government would fail to respond to the
defendant's motions or subsequently characterize the defendant's
positions as meritless. While the Magistrate should have been
made aware that the government had already had thirty days in
which to respond to the defendant's motions, it does not appear
the elapsed time was ever brought directly to his attention.*fn4
Nor is the court persuaded that the extension should be
excluded merely because the defendant failed to object. At the
time the extension was granted, the defendant was proceeding pro
se. Moreover, the transcript of the proceedings from that date
fails to indicate whether his legal advisor was present. The
defendant, as incorrect as he may have been, felt his motions had
merit and deserved an answer. Thus, under the circumstances, the
court is unwilling to hold the extension was reasonable merely
because the defendant failed to object. The fault in the present
case lies not with the Magistrate or the defendant, but with the
Applying the factors enumerated in § 3162(a)(2), the court
concludes that dismissal should be granted without prejudice.
First, the court considers the subject offense to be extremely
serious. It does not involve mere inadvertence, but, instead, the
intentional filing of dozens of unauthorized withholding
Second, the court does not consider the particular facts and
circumstances of this case as justifying the additional sanction
of dismissal with prejudice. In the view of this court, the
government's actions were more negligent than wilful. Dismissal
without prejudice, with its accompanying burden of reindictment
and retrial, appears to be an adequate sanction.
Finally, reprosecution will not have an adverse impact upon the
administration of the Act or the administration of justice. The
defendant has not suffered any prejudice as a result of the delay
in the present case and the court cannot foresee any prejudice to
his defense resulting from his reprosecution. Thus, for all the
reasons set forth herein, the court views dismissal without
prejudice as the appropriate sanction.
For the reasons set forth herein, defendant's motion in arrest
of judgment is allowed and the subject indictment is dismissed
without prejudice. Defendant's remaining motions are denied.