Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal Action No. 89-00299-01).
Present: Hutchinson, Cowen and Weis, Circuit Judges.
HUTCHINSON, Circuit Judge.
Appellant, Scott David Lattany (Lattany), appeals a judgment in a criminal action in the United States District Court for the Eastern District of Pennsylvania convicting him of two counts of bank robbery and one count of attempted bank robbery in violation of 18 U.S.C.A. § 2113(a) (West Supp. 1992). Lattany asks us to reverse his conviction and dismiss the indictment with prejudice. His principal contention is that his rights under the Speedy Trial Act (the "Act"), 18 U.S.C.A. §§ 3161-3174 (West 1985 & Supp. 1992), were violated because trial occurred 551 days after indictment.
Lattany was arraigned on August 17, 1989. His trial, originally scheduled for October 9, 1989, was continued several times at the request of a succession of defense lawyers and did not begin until January 29, 1991. Lattany was aware of the intervening pretrial motions filed on his behalf, including those seeking continuances, and made no objection to any of them. The pretrial motions included some in connection with a defense of insanity Lattany wanted to assert and the psychiatric exams related thereto, as well as the requests for continuances occasioned by changes in counsel, including an earlier continuance's final extension to give standby counsel time to familiarize himself with the case after Lattany's request to represent himself pro se was granted. This last extension and the earlier continuance then still outstanding were for an open-ended period. The district court did not contemporaneously record its findings in support of its Conclusion that either this open-ended continuance, or its extension, was needed to serve the ends of Justice. Unless that continuance and its extension properly and persistently tolled the seventy days within which the Act requires a criminal defendant to be tried, Lattany's convictions must be vacated.
This Court has already decided the Act does not require the facts which form the basis of an ends of Justice continuance to be recorded within the seventy days during which the Act requires trial to commence, so long as the court states within that time the statutory basis for the continuance. Whether the Act authorizes an open-ended continuance is a question of first impression in this Court. After considering it, we hold that open-ended continuances to serve the ends of Justice are not prohibited if they are reasonable in length. On the record before us, we also hold that the district court did not abuse its discretion in concluding that the open-ended continuance was necessary in the interest of Justice and that both it and its extension were reasonable under the circumstances. Therefore, there was no Speedy Trial Act violation.
Lattany has filed a supplemental pro se brief in which he also listed several other issues as properly before this Court. In addition to the asserted violation of the Speedy Trial Act, Lattany's appellate counsel has also raised various other issues. These other issues all lack merit. Therefore, we reject them without Discussion and will affirm Lattany's convictions.*fn1
On July 27, 1989, Lattany was indicted and charged with attempted bank robbery in violation of 18 U.S.C.A. § 2113(a).*fn2 On August 17, 1989, he was arraigned and entered a plea of not guilty. His trial was scheduled for October 9, 1989. On September 7, 1989, a superseding indictment was returned additionally charging Lattany with a string of four robberies occurring within two blocks and six weeks of the earlier attempted robbery. On September 14, 1989, Lattany was arraigned on the superseding indictment and entered pleas of not guilty.
On May 21, 1990, Lattany sought and was granted permission to proceed pro se with the assistance of appointed stand-by counsel. Finally, on December 7, 1990, the government asked the district court to set a trial date. In response, the court set a trial date of January 28, 1991 and, in an order dated December 12, 1990, stated in full its reasons in justification of all the pretrial delays and continuances granted up to that time. On December 17, 1990, Lattany filed, for the first time, a pro se motion to dismiss the indictment for violation of the Speedy Trial Act.
Both parties filed numerous pretrial motions, including three requests for continuances that were filed with Lattany's knowledge.*fn3 During these pretrial proceedings, several attorneys attempted to represent Lattany. Ultimately, each of them was either unable to accept representation or had to withdraw because of conflict of interest, scheduling problems, or inability to agree with Lattany on defense strategy.
The district court denied Lattany's motion to dismiss and all other remaining pretrial motions after pretrial hearings that began on January 28, 1991. Trial began on January 29, 1991, 551 days after the return of the original indictment. At trial, Lattany represented himself, with the assistance of stand-by counsel.
The jury convicted Lattany on two counts of bank robbery and one count of attempted bank robbery in violation of 18 U.S.C.A. § 2113(a) on February 1, 1991. On August 6, 1991, the district court denied Lattany's post-trial motions for judgment of acquittal or, in the alternative, a new trial, based upon various arguments, including violation of the Speedy Trial Act. In an accompanying opinion, the district court addressed Lattany's argument that the indictment should be dismissed under the Speedy Trial Act:
This case was delayed coming to trial for some time because of the difficulty Lattany had with the attorneys who attempted to represent him. All told, counting the stand-by counsel [Smith] who was present at trial and assisted Lattany at the trial, Lattany was represented by six attorneys from indictment to conviction. Lattany claims that the delay in trying his case was a violation of the Speedy Trial Act. As the following chronology of events shows, the delays which did occur were entirely attributable to Lattany's management of his defense.
On September 6, 1991, the district court sentenced Lattany to 210 months in prison and three years of supervised release. He filed a timely notice of appeal on September 13, 1991.
Both Lattany and counsel contend that the 551 days that elapsed between the return of the original indictment on July 27, 1989, and the empaneling of the jury on January 29, 1991 violated the Speedy Trial Act. The government contends that the substantial delay in this case was occasioned either by pretrial motions that tolled the time limit set by the Act or by continuances that were required to serve the ends of Justice because defendant needed time to develop and prepare an adequate defense.
The district court had subject matter jurisdiction under 18 U.S.C.A. § 3231 (West 1985). We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West Supp. 1992). We set out the scope of appellate review over a district court's decision to grant a § 3161(h)(8) continuance in United States v. Rivera Construction Company, 863 F.2d 293 (3d Cir. 1988):
The standard of review of a continuance granted pursuant to § 3161(h)(8) of the Speedy Trial Act depends upon what step in the district court's analysis we are reviewing. Where we review the district court's interpretation of the statute, it is a question of law and, therefore, subject to plenary review. If the district court's factual Conclusions are at issue, then a clearly erroneous standard is appropriate. Finally, when the district court grants a continuance after a proper application of the statute to established facts, then an abuse of discretion standard is applied.
Id. at 295 n.3 (citations omitted). Therefore, we exercise plenary review over the district court's construction of the Act and its provisions on excludable time. If the district court properly construed and applied the Act to findings of fact that are not clearly erroneous, we must decide, under the circumstances of this case, whether it abused its discretion in permitting an open-ended continuance to run until December 12, 1990 without fixing a firm trial date.
"Congress enacted the Speedy Trial Act to give effect to the Sixth Amendment right to a speedy trial by setting specified time limits after arraignment or indictment within which criminal trials must be commenced."*fn5 Rivera, 863 F.2d at 295 (quoting H.R. Rep. No. 1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7401, 7402). The Speedy Trial Act requires:
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.A. § 3161(c)(1) (emphasis added). That section also provides that certain "periods of delay shall be excluded . . . in computing the time within which the trial . . . must commence." Id. § 3161(h). The starting point for computing the seventy-day limit in this case is August 18, 1989, the day after Lattany's arraignment before a judicial officer. See United States v. Anderson, 902 F.2d 1105, 1108 n.1 (2d Cir.) (day of indictment not included in calculating time within which defendant must be brought to trial), cert. denied, 112 L. Ed. 2d 146, 111 S. Ct. 182 (1990); United States v. Richmond, 735 F.2d 208, 211 (6th Cir. 1984) (because indictment was returned prior to defendant's first appearance before judicial officer at arraignment, includable time began to run from day of arraignment and, in calculating seventy-day limit, day of arraignment excluded); see also Government of Virgin Islands v. Duberry, 923 F.2d 317, 320 n.8 (3d Cir. 1991) (excluding days on which triggering events occurred).
If the trial does not commence within seventy days, or within an extended time period allowed and allowable pursuant to § 3161(h), the indictment or information must be dismissed on motion of the defendant, with or without prejudice. 18 U.S.C.A. § 3162(a)(2). Subsection (h) provides nine exclusive circumstances warranting exclusion, including:
(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 the Conclusion of the hearing on, or other prompt Disposition of, such motion;
(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 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 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.
Id. §§ 3161(h)(1)(F), (h)(8)(A) (emphasis added).
Before excluding a period of time under an "ends of Justice" continuance pursuant to (h)(8)(A), the district court must consider certain factors in determining whether such a continuance should be granted, including:
(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 Justice.
(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 complex 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 counsel, or would deny counsel for the defendant or the attorney for the Government the ...