                             In the

    United States Court of Appeals
                For the Seventh Circuit
No. 14-2145

UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,

                               v.


EDDI RAMIREZ,
                                           Defendant-Appellant.

             Appeal from the United States District Court
                   for the Central District of Illinois.
   No. 2:12-cr-20068-MPM-DGB-5 — Michael P. McCuskey, Judge.


    ARGUED FEBRUARY 25, 2015 — DECIDED JUNE 10, 2015


   Before BAUER, FLAUM, and MANION, Circuit Judges.
   BAUER, Circuit Judge. On October 4, 2012, a federal grand
jury indicted Eddi Ramirez for conspiracy to sell or distribute
cocaine and for possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. On
December 11, 2013, Ramirez filed a motion to dismiss the
indictment for lack of a speedy trial under the Speedy Trial Act
(“STA”), 18 U.S.C. §§ 3161–74, which the district court denied.
Ramirez now seeks review of that decision. Because we
2                                                   No. 14-2145

conclude that the district court erred in denying Ramirez’s
motion to dismiss, we reverse.
                     I. BACKGROUND
   Ramirez was arrested for conspiracy to distribute cocaine
and possession with intent to sell cocaine on August 31, 2012.
He and ten co-defendants were indicted on October 4, 2012.
    Ramirez was arraigned on October 15, 2012. At the arraign-
ment he pleaded not guilty and the court set the trial date for
December 10, 2012. On Ramirez’s motion, the district court
continued the matter for status to January 24, 2013, making a
§ 3161(h)(7)(A) ends of justice finding that delay was appropri-
ate due to the complexity of the case. At the status conference
on January 24, 2013, the court continued the case to April 5,
2013, making another ends of justice finding to allow counsel
additional time to prepare for trial. At the status conference on
April 5, 2013, Ramirez indicated that he “want[ed] a trial date
now” and would file a motion to sever his case from his co-
defendants. In response, the court set a briefing schedule for
the motion to sever and rescheduled the trial for June 3, 2013.
Again, the court made an ends of justice finding that this was
a complex case, excluding the time from April 5, 2013, to
June 3, 2013, from the speedy trial clock.
    Ramirez filed his first motion to sever on April 10, 2013. On
May 3, 2013, the court held a hearing on the motion and denied
it in the interest of judicial economy. The court then vacated
the June 3 trial date and set a status conference for June 17,
2013, making an ends of justice finding excluding time from
May 3 to June 17, 2013.
No. 14-2145                                                     3

    Prior to the status hearing on June 17, 2013, two of
Ramirez’s co-defendants, Erica Kulak and Teravena Kapraun,
pleaded guilty. During the June 17 hearing, four more co-
defendants, Juan Vorarth, Leonardo Aldape-Hernandez,
Gabriel Lopez-Saucedo, and Jourdan Hullinger, informed the
court of their intentions to enter guilty pleas. Ramirez re-
quested that the court set a trial date and indicated that he
would file another motion to sever from the remaining
defendants in the case. In response, the court scheduled
briefing on the second motion to sever and set a motion
hearing for August 9, 2013, again making an ends of justice
finding.
    By the hearing on August 9, 2013, only Ramirez, Felipe
Quinones, Hullinger, and three fugitives remained defendants.
Of the named defendants, at least two were likely to plead out.
Quinones indicated that he would likely be pleading guilty
and, with respect to Hullinger, the government predicted that
her case would likely be resolved by plea. With that in mind,
the court granted Ramirez’s motion to sever as to the three
fugitive co-defendants, but denied it as to Quinones and
Hullinger. The court reasoned that denial as to those two was
appropriate given how few defendants remained on the case,
particularly in light of the possibility that at least one, if not
both, of the remaining co-defendants would not be going to
trial.
   After ruling on the motion to sever, the court opened
discussion to setting a new trial date. Ramirez indicated that he
preferred an October trial date to one in February. The court
ruled out October, however, citing its crowded calendar. The
court then set trial for February 3, 2014, and made an ends of
4                                                  No. 14-2145

justice finding that the period of delay from August 9, 2013, to
February 3, 2014, was excluded from the STA time limit. The
court did not identify a specific basis for its ends of justice
finding at that time.
   The next status conference took place on November 19,
2013. By then, Quinones had pleaded out. At the conference,
Hullinger informed the court that she would be pleading out
as well, at which point Ramirez again requested a trial date
sooner than February 3, 2014. Citing for a second time the
upcoming holiday calendar and the crowded trial docket, the
court indicated that Ramirez would have to bring a further
motion to sever from Hullinger if he wanted an earlier trial
date.
    On December 11, 2013, Ramirez filed a motion to dismiss
for lack of a speedy trial. He argued that district court failed
to make a valid ends of justice finding at the hearing on
August 9, 2013; specifically, Ramirez argued that the district
court continued the case due to its congested calendar in
violation of the STA, which resulted in a delay in excess of
the STA’s seventy-day limitation. The district court denied
Ramirez’s motion and issued an opinion on January 21, 2014.
In the opinion, the court conceded that it discussed its crowded
calendar during the hearing on August 9, 2013, but explained
that its ends of justice finding was actually motivated by the
complexity of the case and the fact that Ramirez was joined
with co-defendants who had not been severed or made speedy
trial demands, not by his court’s calendar.
   Ramirez went to trial on February 3, 2014. The jury re-
turned a guilty verdict and judgment was entered on May 23,
No. 14-2145                                                      5

2014. Ramirez appealed, claiming the district court improperly
continued his trial date for six months—from August 9, 2013,
to February 3, 2014—in violation of the STA.
                       II. DISCUSSION
    Ramirez argues that the district court erred in denying his
motion to dismiss under the STA. We review the district
court’s legal interpretation of the STA de novo, and its decisions
to exclude time for an abuse of discretion. See United States v.
Wasson, 679 F.3d 938, 943 (7th Cir. 2012). Absent legal error, we
will reverse the district court’s decision to exclude time only
where the defendant can show both an abuse of discretion and
actual prejudice. Id. at 943–44.
    The STA mandates that a trial of any case in which a plea
of not guilty is entered shall begin within seventy days of the
information or indictment, or from the defendant's appearance
before a judicial officer, whichever date last occurs. 18 U.S.C.
§ 3161(c)(1). The STA imposes the time restriction “to protect
the defendant from excessive pre-trial delay and incarceration
by the government and to protect the public’s interest in the
speedy resolution of justice.” United States v. Larson, 417 F.3d
741, 746 (7th Cir. 2005). This restriction is not completely rigid,
however: the STA excludes certain periods of time from the
seventy-day clock “[t]o provide the necessary flexibility to
accommodate pretrial proceedings that result in justifiable
delay.” United States v. Napadow, 596 F.3d 398, 402 (7th Cir.
2010).
    Relevant to this case, § 3161(h)(7) of the STA “permits a
district court to grant a continuance and to exclude the
resulting delay if the court, after considering certain factors,
6                                                     No. 14-2145

makes on-the-record findings that the ends of justice served by
granting the continuance outweigh the public’s and defen-
dant’s interests in a speedy trial.” Zedner v. United States, 547
U.S. 489, 498–99 (2006). The factors underpinning an ends of
justice finding “need not be articulated contemporaneously on
the record,” Wasson, 679 F.3d at 946, but must be memorial-
ized, either orally or in writing, by the time the court rules on
a defendant’s motion to dismiss. Id. at 945–46. See also 18 U.S.C.
§ 3161(h)(7)(A). If the district court “fails to make the requisite
finding regarding the need for an ends-of-justice continuance,
the delay resulting from the continuance must be counted, and
if as a result the trial does not begin on time, the indictment or
information must be dismissed.” Zedner, 547 U.S. at 508.
    During the hearing on August 9, 2013, the district court
made an ends of justice finding pursuant to 18 U.S.C.
§ 3161(h)(7)(A) and excluded the time from the hearing to
February 3, 2014, the new trial date, but did so without
articulating the factors it considered in granting the continu-
ance. The transcript from the August 9 hearing strongly
suggests that the district court’s decision to continue the case
was based on its crowded calendar, a factor wholly impermis-
sible for consideration in support of an ends of justice continu-
ance. See 18 U.S.C. § 3161(h)(7)(C). While the district court later
explained in its opinion denying Ramirez’s motion to dismiss
that the case’s complexity, as well as the fact that Ramirez
remained joined with co-defendants who had not demanded
a speedy trial, motivated the continuance, we are not con-
vinced by the court’s post hoc explanations.
    While complexity is an acceptable factor under the STA’s
statutory scheme, see 18 U.S.C. § 3161(h)(7)(B)(ii), neither the
No. 14-2145                                                    7

transcript from the August 9 hearing, nor the circumstances of
the case at the time, suggest that complexity actually motivated
the court’s ends of justice continuance. First, the court never
discussed complexity. This is perhaps not entirely surprising
because, by the time of the August 9 hearing, the case had
grown far less complex than it had been at its inception. By
then, all but two of Ramirez’s co-defendants had pleaded out
and there were strong indications that at least one, if not both,
of the remaining co-defendants would plead guilty, as well.
Furthermore, the government, “err[ing] on the side of length,”
estimated that the trial would take at most two weeks, regard-
less of whether Ramirez was tried alone or with co-defendants.
The government also explained at the August 9 hearing that it
was in the “unique” position of “trying to reduce the amount
of evidence to present” in light of the many defendants who
had pleaded out and who agreed to cooperate against Ramirez.
    The district court’s second post hoc identified factor—
Ramirez’s continued joinder with co-defendants who had not
demanded speedy trial—is also not apparent from the hearing
transcript. The court’s discussion of the number of defendants
was in reference to the denial of Ramirez’s motion to sever, not
in reference to setting a trial date. Additionally, the district
court expressly made its ends of justice finding pursuant to
§ 3161(h)(7), not the joinder with co-defendants provision, an
entirely separate basis for exclusion of time, contained in
§ 3161(h)(6).
    Instead of either of the purported explanations, the tran-
script is littered with references to the court’s crowded calen-
dar. The court discussed his packed October calendar repeat-
edly. The court also described how his docket had grown more
8                                                      No. 14-2145

crowded than usual, despite the fact that he was leaving the
bench the following year. Finally, although the court did not
offer any reason for its failure to offer alternative trial dates in
the months between October and February, the November 19
hearing seems to shed light on the omission. At the November
hearing, the court described his inability to schedule trial
between November and January due to the holiday season
(from Thanksgiving to Martin Luther King Day), in addition to
the court’s already crowded calendar.
    As the Supreme Court recognized in Zedner, the built-in
flexibility of the ends of justice continuance has the potential to
“get out of hand,” so “procedural strictness” is necessary to
counteract that danger. Zedner, 547 U.S. at 509. That procedural
strictness requires on-the-record findings that sufficiently
identify the factors that were considered in making an ends of
justice continuance. See United States v. Crawford, 982 F.2d 199,
204 (6th Cir. 1993). Here, we are unable to discern from the
record any permissible factors considered. The district court’s
stated motivations do not comport with the record; the record
only reveals that the district court repeatedly blamed its
crowded calendar for its inability to schedule a sooner trial
date, a factor relied upon in error. See 18 U.S.C. § 3161(h)(7)(C)
(“No continuance … shall be granted because of general
congestion of the court’s calendar.”). And the district court’s
post hoc rationalizations do not cure the error. A judge may not
“grant an ‘ends of justice’ continuance nunc pro tunc, providing
after the fact justification for unauthorized delays.” United
States v. Janik, 723 F.2d 537, 545 (7th Cir. 1983) (internal citation
omitted).
No. 14-2145                                                     9

                     III. CONCLUSION
    Because we conclude that the district court erred, the six-
month delay from August 9, 2013, to February 3, 2014, cannot
be excluded from the STA’s seventy-day clock. Properly
included, then, the period from August 9, 2013, to February 3,
2014, brings Ramirez’s delay to at least 178 days, well beyond
the STA’s limit. For this reason, we reverse the district court’s
denial of Ramirez’s motion to dismiss and remand with
instructions to vacate Ramirez’s conviction and order the
release of the prisoner instanter. See 18 U.S.C. § 3162(a)(2) (“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”).
   Mandate to issue instanter.
