Being under criminal investigation is a stunningly powerless situation. You can’t control when the government starts an investigation, how long it lasts or when it will end. The Speedy Trial Act presents one of the few times when a criminal defendant can dictate the pace of the case. Invoking it, however, is a massive strategic risk.
The Act itself isn’t particularly complicated, but there are a few traps for the unwary hidden in it. Plus, this is an Act that protects both the defendant and the government, so you can bet that there is case law where the courts favor the government’s side of the aisle.
This post is split into two parts. Part I will examine the basics of the statute, including how the standard 70-day limit may be extended. Part II will explore the strategic considerations of invoking the Act in a white-collar case.
The Basics of the Speedy Trial Act
The Speedy Trial Act, 18 U.S.C. § 3161 et seq., provides:
In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a place within the judicial district, so as to assure a speedy trial.
Under the statute, then, you get a specific date for your trial. The purpose of the Act is to “assure a speedy trial.”
What does that mean in the real world?
First, the information or indictment must be filed within 30 days of the defendant’s arrest or service of the summons. Id. § 3161(b).
Second, when a defendant pleads not guilty, the trial “shall commence within seventy days” after the later of the filing date of the indictment or when the defendant first appears in court. Id. § 3161(c). However, the trial cannot begin “less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.” Id. § 3161(d).
In white-collar cases, which are usually on the complex side, trial will start within 70 days after your client is indicted or has his initial appearance. You are guaranteed at least 30 days to prepare for trial.
In theory, if the government violates your speedy trial rights, the charges against you may be dismissed. This is a long-shot argument and unlikely in a complex white-collar case.
Defense-Side Delays Are Excluded from the 70-Day Limit
This 70-day period is far from absolute. The statute defines all sorts of times when the clock is stopped as a result of “proceedings concerning the defendant.” Id. 3161(h)).
Many of the reasons are not relevant to a white-collar case but here are the key ones:
- Delay from any interlocutory appeal (so, if you appeal a privilege ruling, your Speedy Trial Act rights slow down)
- Delay from filing “any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion”
- Delay from court’s consideration of proposed plea agreement
- Delay resulting from “the absence or unavailability of the defendant or an essential witness.”
The Government Can Get a Delay, Too
It also allows the government to seek a delay if it serves “the ends of justice.” Specifically, the statute excludes 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.
The Act also defines a whole host of reasons for when a court should grant a delay for the government. Id. § 3161(h)(7)(B)(i)-(iv).
(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.
(iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex.
(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 reasonable time necessary for effective preparation, taking into account the exercise of due diligence.
Because the list is so broad, it’s very likely the government can get a delay whenever it wants.
The Act doesn’t allow a court to give the government a continuance just because it asks. It provides that a court shall not grant a continuance because the court’s docket is congested or because of “lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.”
We’ll talk later about the possible trial strategy to seek a speedy trial and force the government to go to trial before it is ready. This section of the statute makes that strategy a challenging one, since the courts will surely be disposed to give the government enough time to prepare (just as many judges are disposed to give the defense enough time to prepare).
Waiving Speedy Trial Rights
In 2006, the Supreme Court held in Zedner v. United States that defendants cannot prospectively waive their rights under the Speedy Trial Act. This is because the government has an interest in speedy trials, so that witnesses and evidence do not go missing and to ensure that a defendant does not commit other crimes before trial.
Justice Alito wrote the opinion, so you know it’s not going to be a home run for criminal defendants (though the defendant in the case won). Zedner noted that
Conspicuously, §3161(h) has no provision excluding periods of delay during which a defendant waives the application of the Act, and it is apparent from the terms of the Act that this omission was a considered one.
It went on to explain that
The purposes of the Act also cut against exclusion on the grounds of mere consent or waiver. If the Act were designed solely to protect a defendant’s right to a speedy trial, it would make sense to allow a defendant to waive the application of the Act. But the Act was designed with the public interest firmly in mind. . . That public interest cannot be served, the Act recognizes, if defendants may opt out of the Act entirely.
Even in light of Zedner’s holding, though, courts routinely accept a defendant’s waiver of his rights. Or, the court will simply find that a continuance serves the “ends of justice.”
A defendant will waive his rights to any challenge to a conviction based on Speedy Trial Act violations if he does not raise it before trial. 18 U.S.C. § 3162(a)(2). This will rarely arise in a white-collar case, but if your client believes he has a challenge, be sure to seek dismissal before trial starts.
Check Your Local Rules!
How many times have you heard someone say, “check your local rules” during a CLE? Well, it’s true here too.
When Congress enacted the Speedy Trial Act, it also required each district court to enact a speedy trial plan. Here’s a link to the D.D.C. plan, so you can see what one looks like. It includes certain procedural limits and information about how your particular court implements the Act.
In the next post, we’ll get into the risks and possible rewards of seeking a speedy trial. I plan to incorporate the quote “Justice delayed is justice denied.” You didn’t think these two posts wouldn’t include that oft-quoted maxim, did you?
[…] few months ago, I wrote Part One of this series about Speedy Trial Act strategy in a white-collar criminal case. This post is going […]