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United States v. Napadow

February 23, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MICHAEL NAPADOW, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:08-cr-00328-1-Harry D. Leinenweber, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED DECEMBER 4, 2009

Before POSNER, RIPPLE and WOOD, Circuit Judges.

On April 17, 2008, a federal grand jury returned a six-count indictment charging Michael Napadow with knowingly devising a scheme to defraud and obtain money from home inspectors by selling fraudulent insurance. The indictment contained two counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts One and Three), and four counts of mail fraud, in violation of 18 U.S.C. § 1341 (Counts Two, Four, Five and Six). The district court denied his motion to dismiss the indictment for lack of a speedy trial. Mr. Napadow now seeks review of that decision. Because we conclude that the district court was correct, we affirm the judgment.

I. BACKGROUND

Our decision rests on a close examination of the district court's consideration of Mr. Napadow's motion to dismiss the indictment. We therefore set forth,*fn1 in some detail, the court's treatment of the issue during the course of the proceedings in that court.

Mr. Napadow first appeared before the district court on May 6, 2008. He entered a plea of not guilty. During that appearance, the district court asked the defense how much time it would need to file pretrial motions. Defense counsel requested that the deadline be set for May 27, 2008. The district court set that date as the deadline and scheduled a status conference for June 10, 2008. The district court then asked, "Any objection if I exclude time for pretrial motions?" Tr. at 3, May 6, 2008. Defense counsel stated, "Your Honor, Mr. Napadow has asked me to object and he has asked me to assert his Speedy Trial rights." Id. The district court then stated, "Objection overruled. Time will be excluded for purposes of preparation and consideration of pretrial motions." Id. That same day, the district court entered a minute entry that stated, "Status hearing set for 6/10/2008 at 9:00 a.m. Enter excludable delay in the interest of justice to begin 5/6/2008 and end 6/10/2008 pursuant to 18:3161(h)(8)(A)(B)." R.7.

Neither party filed a pretrial motion. On Tuesday, June 10, 2008, the parties appeared for the status conference. The Government indicated that discovery had been exchanged. Defense counsel then stated, "Mr. Napadow advises me he does not anticipate he will plead guilty in this case. He has asked me to request a trial date, and also has asked me to object to the exclusion of any time." Tr. at 2, June 10, 2008. The district court then asked if the parties were ready to begin trial the following Monday. Id. Defense counsel stated, "Not quite that soon," but Mr. Napadow interjected, "I am ready." Id. at 3. The Government said that, in order to coordinate out of town witnesses' schedules, it would need at least two months to prepare for trial. The district court then proposed August 18, 2008. Defense counsel informed the court that it had another trial scheduled for that date. The district court then said, "Well, since your client wants a trial, let's leave it on the 18th. If your other case goes, then we will have to try it after you are finished." Id. The district court also scheduled a status conference for July 29, 2008. The court did not verbally exclude time. Id. Nevertheless, later that same day, the district court entered a minute entry reflecting the scheduling of the trial date and conference. R.8. The minute entry also stated, "ENter [sic] excludable delay in the interest of justice to begin 6/10/2008 and end 8/18/2008 pursuant to 18:3161(h)(8)(A)(B)." Id.

At the July 29 conference, defense counsel indicated that Mr. Napadow might plead guilty, and the Government asked if the plea hearing could occur within the next week. The following was said:

The Clerk: If I need to set the plea, just let me know, we will go from there.

[The Government]: Okay.

[Defense Counsel]: Thank you, your Honor.

[The Government]: And may time be excluded until that next date?

The Court: I think it is excluded until the trial date.

[The Government]: Okay.

The Court: All right.

[Defense Counsel]: Thank you.

[The Government]: Thank you, your Honor.

The Defendant: I have a question.

The Court: Talk to your lawyer.

The Defendant: What is this excluded stuff?

[Defense Counsel]: Time has already ...


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