                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                          UNITED STATES COURT OF APPEALS
                                                                                     June 14, 2007
                                   FIFTH CIRCUIT
                                                                                Charles R. Fulbruge III
                                         ____________                                   Clerk
                                         No. 04-30185
                                       c/w No. 05-30668
                                         ____________


               UNITED STATES OF AMERICA,


                                             Plaintiff-Appellee,

               versus


               EDDIE STEPHENS,


                                             Defendant-Appellant.



                          Appeals from the United States District Court
                              For the Middle District of Louisiana



Before KING, GARZA, and OWEN, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

       In these consolidated appeals, Eddie Stephens (“Stephens”) challenges his convictions and

sentence for various charges arising out of a string of armed bank robberies in the Baton Rouge,

Louisiana area. The main issue on appeal is whether Stephens’s rights under the Speedy Trial Act,

18 U.S.C. §§ 3161-3174, were violated by delays in bringing him to trial.

                                                I

       As reflected by the trial evidence, Stephens is a disbarred Louisiana attorney who, after
developing problems with drugs and alcohol, began spending time with William Turner (“Turner”),

a drug dealer whom Stephens had known since 1996. According to Turner, he and two of his

cohorts, Cleveland Golden (“Golden”) and Timothy Talbert (“Talbert”), had committed several armed

bank robberies in the Baton Rouge area, and when, in June 1998, Stephens indicated that he knew

how to clean money marred by exploding dye packs, the men allowed him to join in their next

robbery. Thereafter, the group planned several additional robberies, which were carried out by

various members of the group.1 Law enforcement officers investigating the string of bank robberies

eventually identified Turner as a potential suspect and began surveilling him. On December 21, 1998,

after observing Turner and three other men engage in what appeared to be casing activities near a

Bank One, officers secured the bank in anticipation of a robbery. Turner, Talbert, and Golden

approached the bank in a stolen Oldsmobile but sped away when they spotted an unmarked

surveillance vehicle. Officers then arrested Stephens, who was sitting in a Cadillac parked behind the

bank. Stephens admitted that he was waiting for Turner but denied having any knowledge of a plan

to rob the bank that day.

       On October 16, 2000, the Government filed a criminal complaint against Stephens, charging

him with participating in the July 1, 1998 robbery, the August 14, 1998 robbery, the October 16,

1998 robbery, and a November 13, 1998 robbery of a Deposit Guaranty Bank. The complaint also

charged Stephens with conspiring to commit those robberies and the thwarted robbery of the Bank

One on December 21, 1998. Stephens made his initial appearance before a magistrate judge (“MJ”)



       1
         More specifically, there was evidence at trial indicating that all four men robbed a City
National Bank on July 1, 1998 (the “July 1, 1998 robbery”); that Stephens robbed a Bank One on
August 14, 1998 (the “August 14, 1998 robbery”); and that Turner, Talbert, and Stephens robbed
a Whitney Bank on October 16, 1998 (the “October 16, 1998 robbery”).

                                                 -2-
on October 27, 2000. The MJ subsequently held a detention hearing, where, after hearing testimony

from Stephens, the MJ found that Stephens presented a flight risk and a danger to the community and

ordered him detained pending trial.

        On November 15, 2000, a federal grand jury returned an indictment against Stephens and

Turner, charging them with one count of conspiracy to commit bank robbery, one count of armed

bank robbery in connection with the July 1, 1998 robbery, and one count of using a firearm during

that robbery.2 Two weeks later, on November 29, 2000, Stephens filed pro se motions to obtain a

private investigator and an expert witness. The MJ struck both motions the following day, stating

that because Stephens had been provided with counsel, he “should not be filing anything in the record

that is not signed by counsel of record.” Nevertheless, on December 5, 2000, Stephens filed pro se

motions for leave to act as co-counsel and to obtain copies of all pleadings filed in the case. Two

days later, Stephens filed two more pro se motions, one for reconsideration of the detention order

and another for a bill of particulars. The MJ denied Stephens’s motion for reconsideration of his

detention order but did not immediately rule on the remainder of Stephens’s pro se motions. Instead,

the MJ scheduled a motion hearing for January 16, 2001, where, after questioning by the MJ,

Stephens withdrew his motion to act as co-counsel and the MJ denied the remaining motions.

        On January 25, 2001, Turner filed a motion to determine his mental competency to stand trial,

and Stephens filed a motion to sever his case from that of Turner for trial purposes. The district court

granted Turner’s motion the following day but did not rule on Stephens’s severance motion. Almost

three months later, on May 18, 2001, the government filed a response in opposition to Stephens’s


        2
         The indictment also charged Turner with three additional counts of bank robbery and three
additional counts of using a firearm during a crime of violence in connection with bank robberies that
occurred on October 27, 1997, April 8, 1998, and June 12, 1998.

                                                  -3-
motion. Again, however, the district court made no ruling on the motion.

       After lengthy competency proceedings and an evidentiary hearing, the district court ruled on

April 10, 2002 that Turner was competent to stand trial.3 The next day, Turner pleaded guilty to

three counts in the indictment pursuant to a written plea agreement. The district court accepted

Turner’s guilty plea and referred his case to the probation department for preparation of a presentence

investigation report; however, the court deferred acceptance of the plea agreement until Turner’s

sentencing, which was subsequently set for August 16, 2002.4 One week later, the district court set

Stephens’s case for a jury trial on July 22, 2002. On May 30, 2002, however, the government filed

a superseding indictment against Stephens alone. The superseding indictment added several counts

to the charges already pending against Stephens, including two counts of bank robbery and two

counts of using a firearm during a crime of violence in connection with the August 14, 1998 and

October 16, 1998 robberies.

       Thereafter, Stephens filed several motions to continue his trial date, the first of which was

filed and granted on June 7, 2002. The court continued the trial date until September 16, 2002. On


       3
          During the fifteen-month period while Turner’s competency proceedings were pending
(from January 25, 2001 to April 10, 2002), Stephens filed several motions, including: (1) an August
21, 2001 pro se petition for a writ of habeas corpus, in which he asserted that his continued
incarceration violated the Speedy Trial Act, but on which the district court never ruled; (2) a
September 4, 2001 motion for the withdrawal of his counsel, which was granted the same day; (3) a
September 10, 2001 motion by Stephens’s new counsel to continue the October 22, 2001 trial date,
which the district court granted two days later, continuing the trial date to December 3, 2001; (4) a
November 5, 2001 motion for continuance, which the district court again granted, continuing the trial
date to March 25, 2002; and (5) a February 6, 2002 motion for a new detention hearing, which the
MJ held on March 14, 2002 and, after hearing evidence, reaffirmed the detention order. Moreover,
due to Turner’s ongoing competency proceedings, the district court continued the trial date again to
May 13, 2002.
       4
         See Fed. R. Crim. P. 11(c)(3)(A) (authorizing the court to accept, reject, or defer a decision
on certain plea agreements until after the court has reviewed the defendant’s presentence report).

                                                 -4-
August 27, 2002, Stephens again moved for an “ends of justice” continuance of the trial date, but the

district court denied the motion the following day. Then, on September 10, 2002, Stephens gave

notice that he intended to rely on an insanity defense and filed a motion for a competency hearing,

along with his third motion for a continuance. The district court granted both motions the next day

and ordered that Stephens be committed to the custody of the attorney general for psychiatric and

psychological testing. According to Stephens, he did not arrive at the Federal Medical Center in Fort

Worth, Texas until 29 days later, on October 10, 2002. Over the next six months, four extensions

of time were granted to the Federal Medical Center, ultimately extending the deadline for the

completion of Stephens’s mental evaluation to April 25, 2003. Stephens’s competency hearing took

place on July 31, 2003, and at the end of the hearing, the district court scheduled a jury trial for

October 27, 2003. After receiving the parties’ post-hearing briefs, the district court ruled on August

22, 2003 that Stephens was competent to stand trial. The government immediately filed a motion to

transfer custody of Stephens, which was granted on August 27, 2003.

       On October 8, 2003, Stephens filed two motions: one to dismiss the indictment due to a

Speedy Trial Act violation and one to dismiss due to pre-indictment delays.5 The following week,

Stephens moved to waive his right to a jury trial. With the government’s consent, the district court

granted Stephens’s motion for a bench trial on October 17, 2003. Four days later, the district court

denied Stephens’s motion to dismiss due to pre-indictment delays, finding that there was no evidence

of intentional pretrial delays on the part of the government and that Stephens had failed to show any

prejudice. The bench trial commenced on October 27, 2003 and concluded on October 30, 2003,


       5
         In his Speedy Trial Act motion, Stephens asserted only that he had not been brought to trial
within seventy days from the filing of the indictment against him; he made no claim that the
superseding indictment was untimely.

                                                 -5-
with the court finding Stephens guilty on all seven counts in the superseding indictment. One week

later, the district court issued its written ruling denying Stephens’s Speedy Trial Act motion. The

district court concluded that, after factoring in all excludable delays, only sixty-nine days had elapsed

on the Speedy trial clock.6 On February 19, 2004, the district court sentenced Stephens to fifty years

and ten months imprisonment.7 Stephens timely appealed his convictions and sentence.

        On November 5, 2004, Stephens filed in the district court a pro se motion for a new trial

pursuant to Federal Rule of Criminal Procedure 33(b)(1), alleging that newly discovered evidence of

prosecutorial misconduct entitled him to a new trial. Stephens claimed that the government had:

concealed from him evidence that Turner had opened a savings account at the Bank One Stephens

was convicted of robbing prior to that robbery; advised Turner to deny any knowledge of that

account when testifying against Stephens; and threatened to forbid Turner from contact with his

children and to prosecute his wife if he refused to testify against and implicate Stephens. After

receiving the parties’ briefs, the district court denied Stephens’s motion without an evidentiary

hearing, ruling that the “evidence” about which Stephens complained was not newly discovered.

Stephens timely appealed the district court’s ruling, and his two appeals were consolidated.



        6
          Although the district court stated in its ruling that only sixty-two non-excludable days had
elapsed on the Speedy trial clock, the government concedes that the court’s calculation contained a
mathematical error, in that the court inadvertently failed to add in seven of the non-excludable days
that it had found. Thus, the district court actually found that sixty-nine non-excludable days had
elapsed.
        7
         Specifically, the district court sentenced Stephens to sixty months on count one (conspiracy)
and seventy months on each of counts two, three, and four (bank robbery), to be served concurrently
to each other; five years on count five (use of a firearm during the July 1, 1998 robbery), to be served
consecutively to all other counts; and twenty years on each of count six (use of a firearm during the
August 14, 1998 robbery) and count seven (use of a firearm during the October 16, 1998 robbery),
to be served consecutively to each other and all other counts.

                                                  -6-
                                                   II

        Stephens first challenges the district court’s denial of his motion to dismiss the indictment for

an alleged Speedy Trial Act violation. We review the district court’s factual findings supporting its

Speedy Trial Act ruling for clear error and its legal conclusions de novo. United States v.

Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002).

                                                   A

        The Speedy Trial Act, which is designed to protect a criminal defendant’s constitutional right

to a speedy trial and to serve the public interest in bringing prompt criminal proceedings, requires that

a defendant’s trial commence within seventydays from his indictment or initial appearance, whichever

is later. See 18 U.S.C. § 3161(c)(1); United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994).

Under § 3161(h), however, certain delays are excluded in calculating the seventy-day period. 18

U.S.C. § 3161(h)(1)-(9). Among the kinds of delay that are excludable are: delay resulting from

mental competency proceedings; delay resulting from any pretrial motion; delay resulting from the

court’s consideration of a proposed plea agreement; delay resulting from the transportation of a

defendant to and from a place of examination or hospitalization, up to a period of ten days; and delay

resulting from an “ends of justice” continuance. Id. § 3161(h)(1), (8). Also excludable are any

reasonable periods of delay attributable to a codefendant. Id. § 3161(h)(7). “If more than seventy

non-excludable days pass between the indictment and the trial, the ‘indictment shall be dismissed on

motion of the defendant.’” Johnson, 29 F.3d at 942 (quoting18 U.S.C. § 3162(a)(2)).

        In this case, three years passed between the filing of the original indictment against Stephens

in November 2000 and the commencement of his trial in October 2003. Although Stephens concedes

that this three-year period contains numerous periods of excludable delay, he contends that the district


                                                  -7-
court erroneously concluded that three events stopped his speedy trial clock: (1) his December 7,

2000 pro se motion for a bill of particulars, which was held to toll the clock until the MJ’s denial of

the motion on January 16, 2001; (2) Turner’s January 25, 2001 motion for a competency hearing,

which was held to toll the clock until the conclusion of the competency proceedings on April 10,

2002; and (3) Turner’s April 11, 2002 guilty plea, which was held to toll the clock until the

superseding indictment was filed against Stephens on May 30, 2002.8

       After carefully reviewing the record, we conclude that Stephens’s first two objections are

meritless. First, the district court correctly concluded that Stephens’s “artfully drawn” pro se motion

for a bill of particulars stopped the clock from the date it was filed (December 7, 2000) through the

date the MJ held a hearing on and denied the motion (January 16, 2001).9 Second, the district court


       8
          In addition, Stephens argues that (1) the district court erred in excluding nineteen of the
twenty-nine days between the date of the district court’s order committing him to the custody of the
attorney general for a mental examination (September 11, 2002) and the date of his arrival at the
Federal Medical Center, which he contends was October 10, 2002, see 18 U.S.C. § 3161(h)(1)(H)
(excluding “delay resulting from transportation of any defendant . . . to and from places of
examination or hospitalization, except that any time consumed in excess of ten days from the date an
order of removal or an order directing such transportation, and the defendant’s arrival at the
destination shall be presumed to be unreasonable”); and (2) because more than thirty non-excludable
days passed between his October 26, 2000 arrest on the criminal complaint and his May 30, 2002
superseding indictment, the two new firearm counts in the superseding indictment))which he
contends were charged in the criminal complaint ))were untimely, see 18 U.S.C. § 3161(b)
(providing that “[a]ny information or indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on which such individual was arrested or served
with a summons in connection with such charges”). Because we conclude below that Stephens’s trial
was not timely under § 3161(c)(1) for reasons unrelated to his transportation to the Federal Medical
Center, we do not reach either of the aforementioned arguments.
       9
           See 18 U.S.C. § 3161(h)(1)(F) (excluding “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”) (emphasis added); United States v. Clark, 807 F.2d 412, 414 & n.3 (5th Cir. 1986)
(excluding delay resulting from an “artfully drawn” pro se motion to revoke a pretrial detention
order); United States v. Springer, 51 F.3d 861, 865 (9th Cir. 1995) (holding that even frivolous
motions stop the clock because the Speedy Trial Act “does not contain a requirement that the merits

                                                 -8-
correctly concluded that Turner’s motion for a competency evaluation stopped the clock from the

date it was filed (January 25, 2001) through the date the court ruled that Turner was competent to

stand trial (April 10, 2002).10 We therefore focus our attention on Stephens’s third objection, which

challenges the exclusion of the seven-week period between the court’s acceptance of Turner’s guilty

plea on April 11, 2002 and the filing of the superseding indictment against Stephens on May 30, 2002.

If, as Stephens contends, this period is not excludable from his speedy trial clock, then more than

seventy days will have elapsed and a Speedy Trial Act violation will have occurred.

       The district court determined that Stephens’s speedy trial clock stopped when Turner pleaded

guilty to the original indictment on April 11, 2002 because the court was considering the plea

agreement that had been entered into by Turner and the government. See 18 U.S.C. § 3161(h)(1)(I)

(excluding “delay resulting from consideration by the court of a proposed plea agreement to be

entered into by the defendant and the attorney for the Government”). The district court found this


of a motion be assessed before a delay is permitted”); see also Johnson, 29 F.3d at 943 n.4
(explaining that “[w]hen counting days for Speedy Trial Act purposes, the actual filing date of the
motion, and the date of the court’s disposition are excludable”).
       10
           See 18 U.S.C. § 3161(h)(1)(A) (excluding “delay resulting from any proceeding, including
any examinations, to determine the mental competency or physical capacity of the defendant”);
§ 3161(h)(7) (excluding “[a] reasonable period of delay when the defendant is joined for trial with
a codefendant as to whom the time for trial has not run and no motion for severance has been
granted”). Although the district should have first considered whether the fifteen-month period of
delay resulting from Turner’s competency proceedings was a “reasonable period of delay” within the
meaning of § 3161(h)(7) before excluding that period from Stephens’s speedy trial clock, the district
court’s error is harmless. The record supports the conclusion that this period was a “reasonable
period of delay,” given that (1) it was necessary to preserve the possibility of a joint trial of Turner
and Stephens; (2) there is no evidence that the government’s pursuit of a joint trial was disingenuous
at that point; (3) at least eleven months of the fifteen-month period would have been excludable based
on Stephens’s own motion practice; and (4) Stephens has not shown that the delay impaired his ability
to defend himself or was otherwise oppressive. See United States v. Franklin, 148 F.3d 451, 456-58
(5th Cir. 1998) (analyzing the reasonableness requirement of § 3161(h)(7)). Accordingly, the delay
resulting from Turner’s competency proceedings was excludable from Stephens’s speedy trial clock.

                                                  -9-
period excludable as to Stephens because Turner was still his codefendant at the time. The court

further determined that the speedy trial clock remained stopped until May 30, 2002, when the

superseding indictment was filed against Stephens alone, because “[a]t that point, [Turner and

Stephens] could no longer be considered co-defendants.” Stephens contends that this seven-week

period was not a “reasonable period of delay” within the meaning of § 3161(h)(7) and, hence, should

not have been excluded from his speedy trial clock.

        Section 3161(h)(7) provides for the exclusion of a “reasonable period of delay when the

defendant is joined for trial with a codefendant as to whom the time for trial has not run and no

motion for severance has been granted.” 18 U.S.C. § 3161(h)(7). This means that “the excludable

delay of one codefendant may be attributable to all codefendants.” Franklin, 148 F.3d at 455.

Attribution of the excludable delay of one codefendant to another codefendant is not, however,

automatic; rather, the period of delay must be reasonable. See Henderson v. United States, 476 U.S.

321, 326-27 (1986). The reasonableness of the delay can be measured in reference to either (1) “the

totality of the circumstances prior to trial”; or (2) “the actual prejudice suffered by the appellant” as

a result of the delay. See Franklin, 148 F.3d at 457. “In examining the totality of the circumstances

of the case, our inquiry focuses on the necessity of the delay, giving proper consideration ‘to the

purpose behind [§ 3161(h)(7)]))accommodating the efficient use of prosecutorial and judicial

resources in trying multiple defendants in a single trial.’” Bieganowski, 313 F.3d at 283 (quoting

Franklin, 148 F.3d at 457). “With respect to the prejudice analysis, relevant considerations include

whether the delay impaired the appellant’s ability to defend himself or resulted in excessive pretrial

incarceration.” Franklin, 148 F.3d at 457. “Given the fact-intensive nature of the reasonableness

inquiry, we review subsection (h)(7) exclusions on a case-by-case-basis.” Bieganowski, 313 F.3d at


                                                  -10-
283.

       Consideration of all of the relevant circumstances in this case warrants the conclusion that the

seven-week period following Turner’s guilty plea was not a “reasonable period of delay” excludable

under § 3161(h)(7). Most importantly, the delay was not necessary to serve the purpose of

§ 3161(h)(7). “There is a preference in the federal system for joint trials of defendants who are

indicted together,” Zafiro v. United States, 506 U.S. 534, 537 (1993), and prior to Turner’s guilty

plea, “the utility of a joint trial [wa]s particularly compelling” in this case because Turner and

Stephens were charged with a single conspiracy, see Franklin, 148 F.3d at 457. When the district

court accepted Turner’s guilty plea, however, the possibility of a joint trial of Turner and Stephens

was substantially reduced, if not eliminated.11

       To be sure, the mere fact that Turner entered a guilty plea did not completely eliminate the

possibility of a joint trial with Stephens, as Turner could have withdrawn his guilty plea and

proceeded to trial. However, the circumstances of this case, and the terms of Turner’s plea

agreement in particular, made it highly unlikely that Turner would be able to withdraw his guilty plea

in time to proceed to trial with Stephens. Following the court’s acceptance of his guilty plea, Turner

did not have an absolute right to withdraw that plea. See United States v. Powell, 354 F.3d 362, 370

(5th Cir. 2003). Rather, Turner could have withdrawn his guilty plea only if the court rejected his

plea agreement or if he could show “a fair and just reason for requesting the withdrawal” of the plea.

See FED. R. CRIM. P. 11(d)(2). One of the conditions of Turner’s plea agreement was that he provide

truthful testimony in any trial where such testimony was relevant. One such trial was that of



       11
           The district court appears to have recognized as much when it determined that Turner’s
guilty plea rendered Stephens’s severance motion moot.

                                                  -11-
Stephens, which was scheduled to occur before Turner’s sentencing. Indeed, each time Stephens’s

trial date was postponed, the government moved to continue Turner’s sentencing date until after

Turner testified at Stephens’s trial, so that the court would know whether Turner had complied with

the terms of the plea agreement before deciding whether to accept or reject it. Although the district

court was certainly entitled to delay the acceptance of Turner’s plea agreement while waiting to see

whether Turner fulfilled the conditions of the agreement, the delay did not serve to preserve the

possibility of a joint trial of Turner and Stephens. To the contrary, the fact that the court did not

intend to accept or reject the plea agreement until Turner’s sentencing))which was not scheduled

to occur until after Turner testified at Stephens’s trial))made it extremely unlikely that a need for

Turner to go to trial would arise before Stephens’s trial took place and, hence, that a joint trial would

ever occur. Tolling Stephens’s speedy trial clock pending the court’s acceptance or rejection of

Turner’s plea agreement was therefore wholly unnecessary to achieve the purpose behind

§ 3161(h)(7)))facilitating the efficient use of prosecutorial and judicial resources by enabling joint

trials. See Franklin, 148 F.3d at 457.12 Although there may be cases where delay resulting from a

court’s post-guilty plea consideration of codefendant’s plea agreement is necessary to preserve the

possibility of a joint trial, this is not such a case.

        Stephens’s assertion of his speedy trial rights and the overall length of the delays attributable

to Turner, during which time Stephens remained in prison without bond, are circumstances that

further indicate that tolling Stephens’s speedy trial clock while the court delayed its acceptance of


        12
             We note that a contrary ruling would mean that a defendant’s trial could be postponed
indefinitely any time a codefendant pleads guilty pursuant to a plea agreement that calls for him to
testify at the defendant’s trial and the district court defers acceptance of that plea agreement until the
codefendant’s sentencing. The purpose of § 3161(h)(7) of the Speedy Trial Act does not
countenance such a rule.

                                                     -12-
Turner’s plea agreement was unreasonable. Long before Turner’s guilty plea, Stephens filed a motion

to sever his case, upon which the district court never ruled. Thereafter, Stephens filed a pro se

petition for a writ of habeas corpus, in which he expressly asserted that his rights under the Speedy

Trial Act were being violated. Again, the district court did not rule upon Stephens’s motion. When

Turner subsequently pleaded guilty, Stephens’s trial had already been delayed for fifteen months due

to Turner’s mental competency proceedings. Although Stephens filed several of his own motions that

tolled the speedy trial clock for much of that period, at least four months of the fifteen-month delay

were not attributable to Stephens’s motion practice. Thus, the seven-week period when Turner’s plea

agreement was “under consideration,” though not terribly lengthy when considered in isolation,

followed on the heels of another long delay caused not by Stephens but by Turner. Thus, the overall

length of the delay, along with Stephens’s prior invocation of his right to a speedy trial, weigh in

favor of finding the delay unreasonable.

       After examining the totality of the circumstances of this case, focusing particularly on the

necessity of the delay as it pertains to the purpose behind § 3161(h)(7)))enabling joint trials))we

hold that it was not reasonable for Stephens’s speedy trial clock to be tolled while the district court

delayed the acceptance of Turner’s plea agreement.13 Consequently, the seven-week period from

April 11, 2002 to May 30, 2002 is not excludable for reasons associated with Turner’s guilty plea.

Unless this period is excludable for some other reason, Stephens’s speedy trial clock exceeds the

seventy non-excludable days permitted under the Speedy Trial Act. We must therefore consider the


       13
          Because we conclude that the totality of the circumstances prior to trial rendered the delay
unreasonable, we need not decide whether any prejudice Stephens may have suffered from the delay
also rendered it unreasonable. See Franklin, 148 F.3d at 457 (explaining that the reasonableness of
a codefendant’s delay can be measured either by the totality of the circumstances or by the prejudice
to the defendant).

                                                 -13-
government’s argument that another event))Stephens’s January 25, 2001 severance motion))tolled

the speedy trial clock until the superseding indictment was filed against him on May 30, 2002.

       Section § 3161(h)(1)(F) (“Subsection F”) excludes delay resulting from the filing of a pretrial

motion through the conclusion of the hearing on, or other prompt disposition of, the motion. 18

U.S.C. § 3161(h)(1)(F). Section 3161(h)(1)(J) (“Subsection J”) provides for the exclusion of up to

thirty days after the court takes a pretrial motion under advisement. Id. § 3161(h)(1)(J); see Johnson,

29 F.3d at 942. In Johnson, we clarified how Subsections F and J operate. See Johnson, 29 F.3d

at 942-45 (applying Henderson, 476 U.S. at 328-31). We explained that when a motion requires a

hearing, Subsection F operates to toll the speedy trial clock from the date the motion is filed through

the date that the court holds a hearing on the motion. Id. at 942-43. Subsection F also implicitly

excludes “that time after a hearing needed to allow a trial court to assemble all papers reasonably

necessary to dispose of the motion, e.g., the submission of post-hearing briefs.” Id. at 943. At that

point, the court is deemed to have taken the motion “under advisement” and has thirty excludable

days under Subsection J in which to rule. Id. The clock begins to tick again at the end of that thirty-

day period, regardless of whether the court has ruled on the motion. Id.

       If the motion does not require a hearing, Subsection F excludes the time needed for a “prompt

disposition” of the motion, which, under Subsection J, may be no more than thirty days from the date

the motion is taken under advisement. Id. Absent evidence to the contrary, “a motion should be

considered under advisement for Speedy Trial Act purposes on the day the last paper concerning the

motion at issue was filed with the court.” Id. at 944. “Thereafter, the fact that a motion is ‘pending,’

or is otherwise unresolved, does not toll the Speedy Trial clock.” Id. at 943 (footnote omitted).

Applying these principles, we held in Johnson that several motions that were ruled on without


                                                 -14-
hearings almost a year after their filing dates did not operate to toll the speedy trial clock beyond the

thirty-day “under advisement” period established by Subsection J. Id. at 943-45.

        Relying on Johnson, Stephens argues that his severance motion went “under advisement” no

later than May 18, 2001, when the government filed its response in opposition to the motion.

Thereafter, Stephens argues, the motion tolled the speedy trial clock for the next thirty days, or until

June 17, 2001. We agree with Stephens’s reasoning. Because the district court did not hold a

hearing on the severance motion, and because the record reflects that the last paper concerning the

motion filed with the court was the government’s May 18, 2001 response to the motion, the motion

operated to toll the speedy trial clock only for another thirty days after May 18, 2001, or through

June 17, 2001.14 Consequently, the period from April 11, 2002 to May 30, 2002 is not excludable


        14
            The government “acknowledges that a motion to sever that is never resolved before or at
trial will only toll the clock [for] the 30 days permitted by” Subsection J, but nevertheless contends
that because Stephens’s severance motion “was made moot before trial and the motion was not
carried up to and until trial, the motion to sever should also serve to toll the speedy trial clock up until
the point of the superseding indictment.” In support of this argument, the government relies on
United States v. Bermea, 30 F.3d 1539, 1568 (5th Cir. 1994) and United States v. Welch, 810 F.2d
485, 488-89 (5th Cir. 1987), but its reliance on these cases is misplaced.
         In Bermea, the district court ordered that several James motions be carried with the case until
trial. Bermea, 30 F.3d at 1567. During the trial, the court heard and denied the motions. Id.
Because the motions were specifically carried for a hearing at trial, and because the district court
ultimately heard and ruled on the motions at trial, we concluded that the motions tolled the speedy
trial clock throughout their pendency. Id. at 1568; see also Johnson, 29 F.3d at 944 n.8 (explaining
that when a motion in limine is carried for a hearing during trial and ultimately ruled on at trial, the
time between the filing of the motion and the hearing at trial is excludable under Subsection F). In
this case, by contrast, there was no hearing on the severance motion, and nothing in the record
indicates that the district court carried the motion for a hearing at trial. Bermea is therefore
inapplicable.
         In Welch, one of four codefendants filed a severance motion, which was noticed for a hearing
on two separate occasions but on which a hearing never occurred. Welch, 810 F.2d at 488. Six
months after the motion was filed, two of the defendants pleaded guilty. Id. The two remaining
defendants, including the one who filed the severance motion, went to trial a year and a half later
without a hearing or dispositive order on the severance motion. Id. Because nothing in the record
indicated that the defendant had abandoned his severance motion or attempted unsuccessfully to

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by reason of Stephens’s severance motion.

        In sum, the record demonstrates that neither Turner’s guilty plea (and the court’s subsequent

“consideration” of his plea agreement) nor Stephens’s severance motion rendered excludable the

period from April 11, 2002 to May 30, 2002. When that seven-week period of delay is added to the

sixty-nine other non-excludable days found by the district court to have elapsed on the speedy trial

clock, the delays in bringing Stephens to trial far exceeded the seventy-day period authorized by the

Speedy Trial Act. Consequently, the Speedy Trial Act mandates that Stephens’s convictions be

reversed, his sentence vacated, and the indictment against him dismissed.

                                                    B

        In outlining the sanctions for a Speedy Trial Act violation, the statute leaves to the court’s

discretion whether to dismiss the indictment with or without prejudice. 18 U.S.C. § 3162(a)(2).

“This discretion is channeled through three factors, consideration of which is mandatory: (1) the

seriousness of the offense, (2) the facts and circumstances of the case which led to the dismissal, and

(3) the impact of a reprosecution on the administration of the [Speedy Trial Act] and on the


receive a hearing on it, we concluded that the motion tolled the speedy trial clock from the date it was
filed until the trial began. Id. Unlike the district court in Welch, the district court in this case never
noticed the severance motion for a hearing or otherwise indicated that a hearing was required.
Accordingly, under Subsections F and J, the district court had only thirty excludable days))through
June 17, 2002))in which to rule on Stephens’s severance motion. See Henderson, 476 U.S. at 329-
30; Johnson, 29 F.3d at 943. To the extent Welch suggests that a severance motion can toll the
speedy trial clock indefinitely even if a hearing is not required or held, it conflicts with Henderson,
by which we are bound. See Johnson, 29 F.3d at 943 n.3 (recognizing that several cases, including
Welch, included “general statements” that seemed to suggest that pretrial motions generally toll the
speedy trial clock until they are ruled upon, but holding that because each of those cases could “be
traced directly to cases in which the principles set forth in Henderson were strictly followed and
properly applied to the facts of the case,” such “general statements” in cases like Welch “must be
limited to the facts of [those] case[s], and viewed within the context of [the] principles set forth by
Henderson.”). Thus, the government’s argument that Stephens’s severance motion tolled the speedy
trial clock until the filing of the superseding indictment lacks merit.

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administration of justice.” United States v. Martinez-Espinoza, 299 F.3d 414, 418 (5th Cir. 2002).

Stephens notes that “[o]ur usual practice is to remand for the district court to consider the factors,”

id., and argues that this case fits into the usual pattern. We agree. Accordingly, we remand the case

for the district court to determine whether dismissal should be with or without prejudice, giving

proper consideration to the factors set forth in 18 U.S.C. § 3162(a)(2).

                                                  III

       For the foregoing reasons, we reverse Stephens’s convictions, vacate his sentence, and

remand for the district court to determine whether the indictment should be dismissed with or without

prejudice. Accordingly, we do not reach Stephens’s other arguments on appeal.

       REVERSED AND REMANDED.




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