11-876-cr
United States v. Shellef


                               UNITED STATES COURT OF APPEALS

                                       FOR THE SECOND CIRCUIT


                                          August Term, 2011

                           (Argued: June 20, 2012       Decided: May 23, 2013)

                                         Docket No. 11-876-cr


                                     UNITED STATES OF AMERICA,
                                                          Appellee,

                                                —v.—

                                            DOV SHELLEF,
                                                          Defendant-Appellant.
                                         _________________
Before:
                              LEVAL, POOLER, and RAGGI, Circuit Judges.
                                                           ______

         On appeal from a second judgment of conviction entered in the United States District

Court for the Eastern District of New York (Joseph F. Bianco, Judge), defendant seeks

vacatur of the judgment and dismissal of the indictment with prejudice on the ground that he

was not retried following an earlier mandate of this court within the time prescribed by the

Speedy Trial Act, see 18 U.S.C. § 3161(e).

           AFFIRMED.

           Judge Pooler dissents in a separate opinion.



                                                    1
                                  _____________________

              SCOTT A. CHESIN (Andrew L. Frey, Andrew H. Schapiro, Mayer Brown LLP,
                    New York, New York; Henry E. Mazurek, Clayman & Rosenberg LLP,
                    New York, New York, on the brief), Mayer Brown LLP, New York,
                    New York, for Defendant-Appellant.

              JAMES B. NELSON (Sambhav N. Sankar; Ignacia S. Moreno, Assistant
                   Attorney General, on the brief), Environmental & Natural Resources
                   Division, U.S. Department of Justice, Washington, D.C., for Appellee.


REENA RAGGI, Circuit Judge:

       This appeal from a judgment of conviction entered on February 28, 2011, in the

United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge),

raises questions about the proper application of the Speedy Trial Act, 18 U.S.C. § 3161 et

seq., on retrial, specifically, whether a district court may find factors supporting an extension

of the time for retrial only within the initially prescribed 70-day period, see id. § 3161(e), or

whether it may make such findings even after the 70-day period has passed. We confront

these questions in the context of a record suggesting both insufficient prosecutorial attention

to speedy trial obligations and a lack of candor by prior defense counsel about actual

readiness for trial. Neither concern, however, determines this appeal. In the end, we

conclude that, however preferable it may be for § 3161(e) findings extending the time for

retrial to be made within the initial 70-day retrial period, the statute itself does not impose

such a requirement. For that reason, and because we identify no error in the district court’s

decision to grant an extension to 180 days or in its determination that defendant was tried

within that time, we affirm the challenged judgment.

                                               2
I.     Background

       A.     First Trial and Appeal

       On July 28, 2005, defendant Dov Shellef and confederate William Rubenstein were

found guilty after a six-week jury trial before Judge Joanna Seybert of one count of

conspiracy to commit tax fraud, see 18 U.S.C. § 371; 26 U.S.C. §§ 4681–82, and 45 counts

of substantive wire fraud, see 18 U.S.C. § 1343. These crimes arise out of a complex scheme

to buy and sell an ozone-depleting chemical, CFC-113, without paying millions of dollars

in required federal excise and income taxes. Shellef was also found guilty on 41 counts of

money laundering, see id. § 1956(a)(1)(A)(i)–(ii), B(i); two counts of subscribing to false

income tax returns, see 26 U.S.C. § 7206(1); and one count of personal income tax evasion,

see id. § 7201.

       On appeal, this court ruled that Shellef was entitled to have had the 1996 tax counts

(but not the 1999 tax count) severed from the other charges against him, see United States

v. Shellef (“Shellef I”), 507 F.3d 82, 99–100 (2d Cir. 2007), and to have had his trial severed

from that of Rubenstein, see id. at 103. The initial judgment of conviction was, therefore,

vacated and the case remanded for a new trial. See id.

       B.     District Court Proceedings Following Mandate

       This court’s mandate in Shellef I issued on March 4, 2008, which all parties agree is

the starting date for purposes of calculating time under the Speedy Trial Act provision

governing retrials, see 18 U.S.C. § 3161(e). To facilitate our consideration of Shellef’s


                                              3
Speedy Trial Act challenge to his conviction on remand, we frame our discussion of the

events following issuance of the mandate by reference to discrete time periods.

              1.     March 4 to April 10, 2008: Reassignment of Case to Judge Platt

       Ten days after issuance of the mandate, by letter dated March 14, 2008, the

government requested that Judge Seybert schedule a status conference, advising that the

Shellef I remand would now require three trials for the two defendants. Before Judge

Seybert acted on this request, the case was randomly reassigned on March 21, 2008, to Judge

Thomas C. Platt pursuant to Eastern District Local Rule 50.2(l)(1).1 On March 26, Judge

Platt ordered the parties to appear for conference on April 10.

              2.     April 10, 2008: Discussion of Possible Need for Re-Indictment and
                     Retrial in Early 2009

       At the April 10 conference, a question arose as to whether, consistent with this court’s

severance ruling, the government could pursue the necessary retrials on the single existing

indictment (the government’s position), or needed to re-present the case to a grand jury to

seek three distinct indictments (defendants’ position). With Judge Platt initially inclined



       1
        This local rule, which provides for the division of business among the judges of the
Eastern District of New York, states in relevant part:

       In a criminal case upon reversal of a judgment and a direction for retrial or
       resentence, on receipt of the mandate of the appellate court the clerk shall
       randomly select a different judge to preside over the case. Notwithstanding
       this provision the chief judge may order the case assigned to the original
       presiding judge to avoid placing an excessive burden on another judge.

U.S. Dist. Ct., E.D.N.Y. L. Rules 50.2(l)(1).

                                                4
toward the latter view, the government sought leave to brief the issue. Although it set no

specific briefing schedule, the district court directed the government to include in its brief

an assessment of the speedy trial status of the case.

       The government advised the court that the parties had been exploring the possibility

of retrial in early 2009. When Judge Platt observed that speedy trial exclusions would be

necessary to delay retrial until 2009, the government stated that the case had already been

declared a complex matter, presumably a reference to the Speedy Trial Act’s continuance

provision, see 18 U.S.C. § 3161(h)(7)(A), (B)(ii).2 Shellef’s then-counsel, Stuart E. Abrams,

agreed that the case was complex, but emphasized that Shellef was not agreeing to “open-

ended extensions of speedy trial time.” April 10, 2008 Tr. 16:4–5. Judge Platt observed that

he did not understand that to be the government’s request, which the government confirmed.

Nevertheless, Judge Platt agreed that the case was complex, identifying support for that

conclusion in the Shellef I panel decision. He did not, however, expressly state that he was

granting a continuance on April 10. Rather, he instructed the parties to consider the matter

further so that they could ask for appropriate Speedy Trial Act exclusions at future court

appearances.

       2
         Section 3161(h)(7)(A) permits a district judge, on his own motion or at the request
of one of the parties, to grant a continuance of trial on the basis of contemporaneous oral or
written findings that the ends of justice are better served by the continuance than by a speedy
trial. Among the factors properly considered in making such a determination is “[w]hether
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” the Speedy Trial Act. 18 U.S.C. § 3161(h)(7)(B)(ii).

                                              5
              3.     May 19 to November 4, 2008: Government’s Request for Trial Date
                     and Shellef’s First Speedy Trial Motion

       Approximately five weeks later, on May 19, 2008, the government requested that the

district court set new trial dates in the case. In a four-page, single-spaced letter, the

government presented legal argument as to why it could retry the defendants on the original

indictment, contrary to reservations noted by Judge Platt and opposition voiced by defendants

at the April 10 conference. On May 27, 2008, Judge Platt instructed the government, inter

alia, to submit copies of the redacted indictments it proposed to use at the three anticipated

retrials. For reasons not apparent from the record, the government did not comply until July

22, 2008.

       Shellef never filed any opposition to the government’s May 19 argument that retrial

could proceed without new indictments. Instead, on June 3, 2008, his counsel Abrams filed

a two-page motion seeking dismissal of the pending indictment on the ground that the 70-day

period within which Shellef’s retrial was required by 18 U.S.C. § 3161(e) had expired on

May 13, 2008. Judge Platt denied the motion on July 24, 2008, finding that he had implicitly

granted a speedy trial exclusion on April 10, 2008, pursuant to 18 U.S.C. § 3161(h)(7)(A),

(B)(ii), based on the complexity of the case, which was then acknowledged by all parties who

were seeking retrial in January 2009.3


       3
         Although Judge Platt based his order on 18 U.S.C. § 3161(h)(8), that section was
renumbered to 18 U.S.C. § 3161(h)(7) on October 13, 2008. See Pub. L. No. 110-406. For
purposes of simplicity, we refer to the current version of the statute, even if cited cases
discuss the older version.

                                              6
       Three months later, by letter dated October 29, 2008, the government again requested

a status conference to set trial dates. On November 3, 2008, Judge Platt scheduled that

conference for November 6, at which time it set Shellef’s case for retrial on November 24.

Meanwhile, on November 4, 2008, Abrams filed a motion to modify the conditions of

Shellef’s bail.

              4.      November 4, 2008 to June 17, 2009: Shellef’s Requests for Trial
                      Continuances and Reassignment of Case to Judge Bianco

       Shellef does not contest that the time between the November 4, 2008 bail motion and

the start of trial on December 14, 2009, is properly excluded from speedy trial calculation.

Thus, we need not discuss the particular exclusions supporting this conclusion in detail.

Nevertheless, we think it useful to summarize the events giving rise to this 13-month period

of further delay to provide context for the speedy trial issues raised on this appeal and to

explain the reassignment of this case to Judge Bianco, whose final speedy trial assessment

is here challenged.

       At the November 6 conference, Abrams renewed his argument that Shellef had been

denied speedy retrial. Judge Platt remained unconvinced, reiterating that he had implicitly

granted a § 3161(h)(7) continuance based on complexity, running from the April 10, 2008

status conference through January 2009, the month the parties had identified for possible

retrial. Nevertheless, in light of Shellef’s speedy trial challenge, Judge Platt proceeded to set

November 24, 2008, for Rubenstein’s retrial, to be followed immediately by Shellef’s retrial.

Rubenstein’s counsel objected to the trial date, invoking scheduled medical treatments and

                                               7
ongoing plea negotiations. Judge Platt maintained the date, advising that if the case against

Rubenstein were resolved by plea before November 24, the government should be prepared

to begin Shellef’s retrial on that date. Abrams objected, noting that he was currently engaged

in a trial that would not be concluded by late November. Following Judge Platt’s suggestion

that Shellef retain other counsel who could try the case as scheduled, Abrams advised that

a late November trial still might not be realistic because he expected to file additional

motions addressed to the government’s decision not to re-indict and to unspecified issues

raised by the Shellef I ruling. Judge Platt suggested that Shellef’s efforts to avoid a

November 24 trial cast doubt on the sincerity of his earlier speedy trial protest.

        On November 17, Abrams advised the district court that his client had been unable

to secure new counsel to retry the case on November 24, and that the trial in which he was

engaged would not conclude until mid-December. Abrams proposed that new pretrial

motions be filed by December 22, 2008, and that trial be adjourned until February 12, 2009.

In support of this schedule, Shellef agreed to a § 3161(h)(7) continuance of speedy trial in

the interests of justice. The district court accordingly rescheduled trial for February 17,

2009.

        On January 5, 2009, Abrams again moved to adjourn trial, as well as for leave to

withdraw, for the first time advising Judge Platt that Shellef had not finalized Abrams’s

retention for retrial. At the ensuing January 13 conference, Abrams stated that if the court

would release $250,000 of the money Shellef had posted for bail, Shellef would be able to


                                              8
effect Abrams’s retention, allowing retrial to proceed as scheduled without “the problem of

having [to secure] new counsel.” Jan. 13, 2009 Tr. 5:18–19. With the government’s consent,

the district court released the money. The counsel “problem,” however, was not eliminated.

       By letter dated February 5, 2009, attorney Henry E. Mazurek sought leave to

substitute as Shellef’s counsel and requested a 60-day continuance of the trial date to afford

him adequate time for preparation. Judge Platt denied the application on February 11, 2009,

at an apparently untranscribed telephone conference. Presumably, he had not yet seen

Shellef’s supporting declaration, dated February 10, which advised that it had been his

intention since “remand . . . in March 2008” to seek new counsel for retrial because of

“fundamental disagreements and irreconcilable differences” with counsel of record about his

defense. Shellef Decl. 2 (Feb. 10, 2009). Shellef attributed his failure to do so to financial

constraints that persisted until the district court’s release of bail funds. Shellef represented

that Abrams had agreed to represent him on remand only for purposes of bail and speedy trial

and that the two had had no “adequate substantive meetings or communications” with respect

to defense strategy at retrial.           Id.       Shellef did not explain why these

circumstances—presumably making it impossible to proceed to retrial at any time between

March 2008 and February 2009—had not been disclosed earlier to the district court. By

written order dated February 17, 2009, Judge Platt adhered to his original decision denying

substitution.




                                                9
        Shellef petitioned this court for a writ of mandamus, which was denied on March 13,

2009.       See In re Dov Shellef, 09-0607-mr (2d Cir. Mar. 13, 2009) (order denying

mandamus). The order nevertheless identified various constitutional concerns arising from

Shellef’s claim that the denial of Mazurek’s application was forcing him “unwillingly to

proceed to trial pro se,” which this court assumed Judge Platt would address before retrial.

Id. at 2.

        With jury selection scheduled to begin on the afternoon of March 24, Judge Platt

heard extensively from Shellef and Abrams on that morning and the day before about

Shellef’s professed longstanding intent to secure different representation for retrial, his

current dysfunctional relationship with counsel of record, and his unwillingness to represent

himself. Judge Platt remained adamant in refusing to allow a substitution of counsel that

would require adjournment of trial. The judge voiced frustration that, at past status

conferences, Abrams had given the misimpression that, but for scheduling conflicts and lack

of funds, he stood ready to retry the case. The judge further characterized as inadequate a

proposed stipulation to waive speedy trial challenges that operated only prospectively.

Abrams construed the latter statement as impermissibly conditioning Shellef’s choice of

counsel on the withdrawal of the original speedy trial challenge, prompting a heated

exchange that ultimately led Abrams to request Judge Platt’s recusal, which request was

denied.




                                             10
       At the same time that these proceedings were being conducted in the district court,

Mazurek successfully obtained a temporary stay of trial from this court while he petitioned

for a writ of mandamus. See In re Dov Shellef, 09-1183-op (2d Cir. Mar. 24, 2009) (motion

for emergency stay of trial and writ of mandamus). On April 15, 2009, this court granted

mandamus to the extent of ordering reassignment of the case to a different judge. See In re

Dov Shellef, 09-1183-op (2d Cir. Apr. 15, 2009) (order granting mandamus). Pursuant to

the mandate, which issued on June 2, 2009, the case was reassigned to Judge Bianco on June

17, 2009.

              5.     June 17, 2009 to February 28, 2011: Shellef’s Second Speedy Trial
                     Motion and the Challenged Judgment of Conviction

       At a June 24, 2009 status conference, Judge Bianco set December 7, 2009, for retrial,

with Shellef agreeing to the exclusion of all intervening time from speedy trial calculation.

On September 3, 2009, Mazurek moved to dismiss the pending indictment based on speedy

trial delays occurring before November 4, 2008. The district court denied the motion orally

on November 19, 2009, and on January 14, 2011, after the conclusion of trial and post-trial

proceedings, filed a detailed memorandum and order explaining its reasoning. See United

States v. Shellef, 756 F. Supp. 2d 280 (E.D.N.Y. 2011).

       Therein, Judge Bianco construed the record of proceedings on April 10, 2008, to

reflect an implicit finding by Judge Platt that retrial within 70 days of the mandate would

have been impractical, and to extend the time for retrial to 180 days pursuant to 18 U.S.C.

§ 3161(e). Even in the absence of such action by Judge Platt, however, Judge Bianco

                                             11
concluded that he had the authority to make the same finding of impracticality and to extend

the time for retrial to 180 days, which he did.

       In considering whether Shellef had been tried within the required 180 days, Judge

Bianco focused on the 246 days between the March 4, 2008 mandate and the November 4,

2008 filing of Shellef’s bail motion—after which time Shellef concedes the proper exclusion

of all time through the start of trial on December 14, 2009. Observing that at least 66 of

these 246 days had to be excludable under the Speedy Trial Act for Shellef’s retrial to be

timely, the district court identified the following periods of excludable delay:

       First, the five days spanning March 28, 2008, to April 1, 2008, were automatically

excluded while Shellef’s first motion to modify bail was pending.            See 18 U.S.C.

§ 3161(h)(1)(D).

       Second, the 52 days spanning June 3, 2008, to July 24, 2008, were automatically

excluded while Shellef’s first speedy trial motion was pending. See id.

       Third, at least 15 additional days, from May 19, 2008, to June 3, 2008, were

automatically excluded while the government’s motion to set trial dates was pending before

Shellef’s first speedy trial motion was filed. See id.

       Fourth, one day, April 10, 2008, was excluded because of the status conference on that

date. See id. § 3161(h)(1); United States v. Lucky, 569 F.3d 101, 107 (2d Cir. 2009).

       Because these excludable periods totaled 73 days, Judge Bianco concluded that only

173 days of unexcluded time had elapsed between March 4 and November 4, 2008.



                                             12
Accordingly, Judge Bianco rejected Shellef’s speedy trial challenge as without merit, finding

that he was retried within 180 days of unexcluded time from this court’s mandate.

       Shellef’s retrial commenced on December 14, 2009, with former co-defendant

Rubenstein among the witnesses testifying against him. On January 27, 2010, a jury found

Shellef guilty of one count of conspiracy to commit tax fraud, 43 counts of wire fraud, 41

counts of money laundering, and one count of filing a false tax return.

       Upon review of Shellef’s post-trial motions, the district court dismissed 33 of the

money laundering counts of conviction as duplicative. On January 31, 2011, it sentenced

Shellef to a total of five years’ imprisonment, three years’ supervised release, and a special

assessment of $5,300.00 on the remaining counts of conviction. The court also ordered

Shellef to forfeit about $1.1 million in money and property. Judgment was formally entered

on February 28, 2011, and this timely appeal followed.

II.    Discussion

       Shellef appeals his conviction on a single ground: the district court’s purported failure

to afford him a retrial within the time prescribed by the Speedy Trial Act. See 18 U.S.C.

§ 3161(e). Shellef insists that the prescribed time was 70 days because Judge Platt’s actions

on April 10, 2008, were inadequate to support a statutory extension of up to 180 days, and

Judge Bianco could not make the requisite findings for extension after the initial 70-day

period had elapsed. Shellef argues that he was not tried within 70 unexcluded days of this

court’s March 4, 2008 mandate because Judge Platt’s actions at the April 10 conference were



                                              13
inadequate to manifest a contemporaneous exclusion for complexity pursuant to 18 U.S.C.

§ 3161(h)(7)(A), (B)(ii), which could not, in any event, be open ended, see United States v.

Gambino, 59 F.3d 353, 358 (2d Cir. 1995). Shellef further argues that, even if the prescribed

time for retrial were found to be 180 days, he was not tried within that time because Judge

Bianco erred in treating various time periods as excludable.

       Insofar as these issues challenge the construction of the Speedy Trial Act, they present

questions of law that we review de novo. See United States v. Lucky, 569 F.3d at 106.

Insofar as they challenge the district court’s identification of periods of exclusion under the

statute, we review the district court’s findings of relevant facts only for clear error, but we

review the application of the Speedy Trial Act to those facts de novo. See United States v.

Simmons, 786 F.2d 479, 483 (2d Cir. 1986). Applying these principles, we conclude that

three rulings suffice to resolve this appeal. First, the findings necessary to extend the

prescribed period for retrial from 70 to 180 days under 18 U.S.C. § 3161(e) can be made after

the initial 70-day period for retrial has passed. Second, the factors relied on by Judge Bianco

in granting an extension to 180 days “result[ed] from passage of time,” 18 U.S.C. § 3161(e),

insofar as they reflected changed circumstances between the close of the original trial and

the grant of the extension affecting retrial. Third, Judge Bianco correctly identified sufficient

excludable delay to support the conclusion that Shellef was retried within 180 days of this

court’s mandate. Accordingly, we affirm the judgment of conviction without needing to

decide whether the April 10, 2008 record is itself sufficient to support either a § 3161(e)



                                               14
extension to 180 days or a continuance pursuant to § 3161(h)(7) that renders timely Shellef’s

retrial within 70 unexcluded days of mandate.

       A.     The Speedy Trial Act Does Not Place a Limitation on the Time Within Which
              a District Court May Grant a § 3161(e) Extension for Retrial

       The provision of the Speedy Trial Act relevant to retrial states:

       If the defendant is to be tried again following an appeal or a collateral attack,
       the trial shall commence within seventy days from the date the action
       occasioning the retrial becomes final, except that the court retrying the case
       may extend the period for retrial not to exceed one hundred and eighty days
       from the date the action occasioning the retrial becomes final if unavailability
       of witnesses or other factors resulting from passage of time shall make trial
       within seventy days impractical.

18 U.S.C. § 3161(e) (emphasis added). Shellef argues that the highlighted language must be

construed to require that any extension of time be granted only within the initially prescribed

70-day period for retrial. He submits that after that 70-day period passes, a district court is

not empowered to make the impracticality findings necessary to support an extension up to

180 days. The question is one of first impression in this court. Moreover, none our sister

circuits appears to have answered it directly.4 We here construe § 3161(e) to place no

       4
          In United States v. Holley, 986 F.2d 100 (5th Cir. 1993), a case in which the district
court originally extended retrial beyond 70 days pursuant to a § 3161(h)(7) continuance, only
later to amend its order to indicate that the extension was pursuant to § 3161(e), the issue on
appeal appears to have been the basis for the district court’s § 3161(e) ruling, not its timing,
see id. at 103.
        In United States v. Goetz, 826 F.2d 1025 (11th Cir. 1987), the Eleventh Circuit did
not specify whether the district court had granted a § 3161(e) extension before or after
passage of the initial 70-day period in concluding that defendant could not complain that the
extension “violated the express terms of the Speedy Trial Act” because “the government filed
its motion within the initial time limit provided in section 3161(e),” id. at 1027.
        The United States District Court for the District of Columbia has considered the
question here at issue and, upon review of the text and purpose of § 3161(e), concluded that

                                              15
temporal limit on a district court’s authority to extend the time for retrial up to 180 days.

Accordingly, we conclude that § 3161(e) extensions may be granted even after the initially

specified 70-day period for retrial has passed, provided that the requisite impracticality

finding is based on factors arising before or within that initial period.

       “Statutory analysis necessarily begins with the plain meaning of a law’s text and,

absent ambiguity, will generally end there.” Cruz-Miguel v. Holder, 650 F.3d 189, 195 (2d

Cir. 2011) (internal quotation marks omitted); see Robinson v. Shell Oil Co., 519 U.S. 337,

340 (1997). The language of § 3161(e) plainly authorizes district courts to extend the time

for retrial to as much as 180 days in specified circumstances. No language in § 3161(e),

however, states when a district court may grant such extensions or when it must make the

necessary supporting findings. Nor does any statutory language state that the district court’s

extension authority is limited to the initial 70-day period for retrial.

       Shellef nevertheless urges us to infer such a limitation from Congress’s use of the

future tense in the statutory phrase specifying the circumstances warranting extension: “if

unavailability of witnesses or other factors resulting from passage of time shall make trial

within seventy days impractical.” 18 U.S.C. § 3161(e) (emphasis added). As we understand

Shellef’s argument, a court can only find that factors “shall make” trial within 70 days

impractical if it makes the finding before expiration of the 70 days. Any finding after 70


an extension of the speedy-trial clock under that provision is authorized “after the initial
seventy-day period has elapsed.” United States v. Ginyard, 572 F. Supp. 2d 30, 36 (D.D.C.
2008).

                                               16
days would require a different verb tense: a court would then have to find that the specified

factors “made” or “have made” trial within the initial 70 days impractical. Shellef submits

that Congress’s failure to use these alternative tenses indicates its intent to cabin the exercise

of district courts’ § 3161(e) extension discretion to the initial 70-day period. We are not

persuaded.

        While “shall make” is language that looks to the future rather than the past, the verb’s

subject is not the district court but “factors resulting from passage of time.” In this context,

Congress’s use of the future tense is properly understood to signal that it is not necessary to

wait a full 70 days before granting an extension of retrial, i.e., until there can be no doubt that

factors “made” or “have made” retrial within that period impractical. Rather, extension may

be granted as soon as it is evident that factors “shall make trial within seventy days

impractical.” 18 U.S.C. § 3161(e). We do not understand a verb choice that permits a district

court to grant an extension based on reasonable future certainty to foreclose it from doing so

based on past actuality. Indeed, in any number of circumstances, the reason a court can

conclude early into the initial retrial period that certain factors “shall make” retrial within 70

days impractical is that the factors already “have made” it so. In short, use of the future tense

for specified factors to render retrial within 70 days impractical indicates that the factors

themselves must arise before or within the 70-day period, and not thereafter. But it says

nothing about when a district court must find such circumstances.




                                                17
       Had Congress intended to place such a temporal limitation on the exercise of district

court extension authority, one would expect it to have done so not through a tense choice for

the verb applicable to factors that can demonstrate impracticality, but through a qualifier on

the verb authorizing judicial action, as for example, “except that the court retrying the case

may, within the initial seventy-day period for retrial, extend the period for retrial not to

exceed one hundred eighty days.” See generally 18 U.S.C. § 1514(a)(2)(C) (“A temporary

restraining order issued under this section shall expire at such time, not to exceed 14 days

from issuance, as the court directs; the court, for good cause shown before expiration of such

order, may extend the expiration date of the order for up to 14 days or for such longer period

agreed to by the adverse party.”); 28 U.S.C. § 2107(c) (“The district court may, upon motion

filed not later than 30 days after the expiration of the time otherwise set for bringing appeal,

extend the time for appeal upon a showing of excusable neglect or good cause.”); Fed. R.

App. P. 4(a)(6) (“The district court may reopen the time to file an appeal for a period of 14

days after the date when its order to reopen is entered . . . .”). In the absence of any such

language temporally limiting the exercise of judicial discretion, we identify no statutory basis

for holding that a court may identify the “factors resulting from passage of time [that] shall

make trial within seventy days impractical” only within the initial 70-day period. 18 U.S.C.

§ 3161(e); see United States v. Ginyard, 572 F. Supp. 2d 30, 36 (D.D.C. 2008).

       Shellef maintains that, even if the text of § 3161(e) does not plainly support a

temporal limitation on judicial authority to grant extensions of retrial, we should preclude


                                              18
retrospective findings of impracticality to safeguard against the risk, noted in United States

v. Tunnesson, 763 F.2d 74 (2d Cir. 1985), that district courts will “simply rationalize [their]

action[s] long after the fact, in order to cure an unwitting violation of the Act,” id. at 78. This

argument is unpersuasive for several reasons.

       First, it rests on the unfounded assumption that district courts will act in bad faith in

making impracticality findings after the initial 70-day period. Our precedent is to the

contrary. “We assume that district court judges apply the law faithfully,” and we refuse to

interpret rules and statutes “based on a contrary assumption.” Transportes Navieros y

Terrestres S.A. de C.V. v. Fairmount Heavy Transp. N.V., 572 F.3d 96, 109 (2d Cir. 2009);

see United States v. Ginyard, 572 F. Supp. 2d at 36 (identifying “no meaningful reason to

distinguish between a finding on the sixty-ninth day of the speedy trial clock that trial is

impractical and the same finding made on the seventy-first day”).

       Second, when we noted a rationalization concern in Tunnesson, a case holding that

continuances in the interests of justice pursuant to 18 U.S.C. § 3161(h)(7) could be granted

only prospectively, we did so in dictum, having already concluded that the statutory text and

legislative history of § 3161(h)(7) plainly expressed Congress’s intent for such grants to be

only prospective. See United States v. Tunnesson, 763 F.2d at 76–77 (citing S. Rep. No. 93-

1021, at 21, 39 (1974)). Indeed, the language used to signal this intent specifically limits

courts’ authority to act other than prospectively. It states that no “period of delay resulting

from a continuance granted by the court in accordance with this paragraph shall be


                                                19
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.” 18 U.S.C. § 3161(h)(7)(A) (emphasis added); see Zedner v. United States, 547 U.S.

489, 506 (2006) (holding statutory text clear that “findings must be made, if only in the

judge’s mind, before granting the continuance”); United States v. Tunnessen, 763 F.2d at 78

(observing that while district court need not state “precise reasons” for its decision at time

continuance is granted, “prospective statement that time will be excluded based on the ends

of justice serves to assure the reviewing court that the required balancing was done at the

outset”). Section 3161(e) contains no limiting language comparable to § 3161(h)(7)(A)’s

phrase “unless the court” that signals Congress’s intent to limit the exercise of judicial

extension discretion. As already noted, the phrase “factors resulting from passage of time

shall make trial within seventy days impractical,” 18 U.S.C. § 3161(e), indicates only that

the factors must arise within the 70-day period, not that the court must make its findings

within that period. Nor has Shellef pointed us to any support for his urged construction in

the legislative history for § 3161(e).

       Third, a further reason not to transfer any concern with post hoc rationalizations for

§ 3161(h)(7) continuances to § 3161(e) extensions is an important distinction between the

two provisions.    The Speedy Trial Act itself places no time limit on § 3161(h)(7)

continuances; by contrast, it caps § 3161(e) extensions at 180 days. Thus, the possibility


                                              20
that post hoc rationalizations could excuse 8-, 10-, or 12-month (or longer) periods of pretrial

delay pursuant to § 3161(h)(7) simply does not arise with respect to § 3161(e) extensions.

Any delay beyond the 180-day limit of § 3161(e) can be justified only by reference to the

“precisely defined” automatic exclusions of § 3161(h)(1)-(6), or by procurement of a

prospective exclusion pursuant to § 3161(h)(7). United States v. Tunnessen, 763 F.2d at 76.

Further, § 3161(h)(7) continuances depend upon a balancing of myriad factors, whereas

§ 3161(e) extensions turn on the answer to a single question: do specified factors arising

before or within 70 days of the mandate render retrial during that period impractical? While

the latter determination requires an exercise of judgment, because it is more narrowly

focused, there is less risk that an answer given on the 71st day (or even the 171st day) will

differ from an answer given on the 69th day. See United States v. Ginyard, 572 F. Supp. 2d

at 36.

          Thus, we conclude that neither the statutory text nor unwarranted concerns about the

conduct of district courts support construing 18 U.S.C. § 3161(e) to limit the exercise of a

district court’s extension discretion under that provision to the initial 70-day period for

retrial. What the statute requires is that the statutorily specified factors supporting extension

arise within the 70-day period and make trial within that period impractical. Accordingly,

Shellef’s argument that Judge Bianco was precluded by § 3161(e) from extending the time

for his retrial to 180 days after passage of the initially prescribed 70-day period fails on the

merits.


                                               21
       That being said, no one is well served by delaying § 3161(e) determinations until long

after the initial 70-day period for retrial has passed. The parties and the court have a strong

interest in knowing sooner rather than later whether speedy trial calculations are controlled

by a 70-day limit or some longer period up to 180 days. Thus, where factors make it

impractical to retry a case within the originally prescribed 70-day period, the “best practice”

is for district courts to make that finding and to grant any appropriate extension within, or

soon after, the initial 70-day period for retrial. See generally Zedner v. United States, 547

U.S. at 507 & n.7 (observing, with respect to continuances in interests of justice, that

although Speedy Trial Act is ambiguous as to when district court must put supporting

findings on record, “best practice” is for court to do so “at or near the time when it grants the

continuance”).

       B.      The District Court’s Grant of a § 3161(e) Extension Was Supported by Factors
               Resulting from the Passage of Time

       Shellef argues that even if Judge Bianco was authorized to extend the time for retrial

after the initial 70-day retrial period had passed, the judge erred in relying on factors that did

not “result[] from [the] passage of time” to support the conclusion that trial within 70 days

was impractical. 18 U.S.C. § 3161(e). We identify no such error.

       The Speedy Trial Act does not itself provide standards for determining when a factor

results from the passage of time or even when such a factor renders trial impractical. This

suggests that Congress intended to afford experienced trial judges considerable discretion in

making such determinations. Consistent with this view, our sister circuits, when confronted

                                               22
with challenges to whether factors supporting a § 3161(e) extension resulted from the

passage of time, have been inclined to conduct case-by-case review rather than to make

categorical pronouncements. Thus, in United States v. Holley, the Fifth Circuit upheld a

§ 3161(e) extension based on “factors resulting from passage of time” that limited the

availability of a judge to retry the case within the initial 70-day period. See 986 F.2d at 103

(noting that district judge to whom case was assigned was in midst of seven-week trial at

time of remand, resident judge in courthouse where case was to have been tried had recused

himself, and district was short four of ten authorized judgeships). The Eleventh Circuit

concluded in United States v. Goetz that the government’s need to investigate defendant’s

further tax violations since the original indictment was a factor supporting a § 3161(e)

extension. See 826 F.2d at 1027–28. In unpublished decisions, the Fourth Circuit identified

as factors resulting from the passage of time making trial within 70 days impractical (1) co-

defendant’s counsel’s need to review extensive materials from the first trial of a complex

case, (2) both defense counsels’ scheduling conflicts, and (3) the government’s need to locate

witnesses who had been released from custody since the first trial, see United States v. Aboh,

145 F.3d 1326, 1998 WL 196612, at *1–2 (4th Cir. Apr. 22, 1998) (unpublished); while the

Ninth Circuit cited the unavailability of the original prosecutor, the unknown whereabouts

of the original case agent and confidential informant, and missing case files, as factors

resulting from the passage of time that made retrial within 70 days impractical, see United

States v. Hernandez-Urena, 35 F.3d 572, 1994 WL 502638, at *4 (9th Cir. Sept. 13, 1994)

(unpublished).

                                              23
       At the same time, the Ninth Circuit, in dictum, indicated that “routine” scheduling

conflicts and plea negotiations cannot, by themselves, be viewed as factors resulting from

the passage of time making retrial within 70 days impractical. See United States v. Pitner,

307 F.3d 1178, 1185 n.6 (9th Cir. 2002). And the Tenth Circuit, in United States v. Scalf,

760 F.2d 1057 (10th Cir. 1985), ruled that § 3161(e) does not apply so broadly as to warrant

treating time spent by the government deciding whether to petition for a writ of certiorari

from the original remand decision as a factor resulting from the passage of time that makes

speedy trial impractical, see id. at 1059.

       We need not—and, in the absence of full record review of each case, could not—here

decide whether we agree with each of these rulings. Like our sister circuits, however, we can

conclude that identifying factors resulting from the passage of time and determining whether

they render trial within 70 days impractical is generally a case-specific inquiry, on which, to

the extent it turns on findings of fact, we will defer to the district court absent clear error.

       Here, Judge Bianco found that retrial within 70 days of remand was impractical for

several reasons, including: (1) the original complexity of the case had been aggravated on

remand by the need to sever charges and defendants into three separate trials; (2) following

remand, but before expiration of the initial 70-day period for retrial, an intervening Supreme

Court decision, see Cuellar v. United States, 553 U.S. 550 (2008), altered proof requirements

with respect to money laundering charges against Shellef; and (3) the case had been twice

reassigned to different judges on remand, requiring each to become familiar with the record

from the previous trial and the legal issues involved.

                                               24
       Shellef argues that, even if there is factual support in the record for these factors, the

district court erred as a matter of law in concluding that they were attributable to the “passage

of time.” He submits that the factors were attributable to court rulings or local rules, which

do not derive from the passage of time as required to support a § 3161(e) extension. This

construes § 3161(e)’s passage-of-time requirement too narrowly.

       To begin, the requirement must be viewed in the context of § 3161(e) as a whole. See

Robinson v. Shell Oil Co., 519 U.S. at 341. Section 3161(e) manifests Congress’s intent to

afford more, rather than less, flexibility in the time afforded to retry a case. See United

States v. Holley, 986 F.2d at 103 (“Section 3161(e) gives the trial court greater flexibility in

setting cases for trial following appeal than is provided in the initial indictment-to-trial

cases.”). Thus, at the same time that § 3161(e) states that all “periods of delay enumerated

in section 3161(h)” for exclusion in computing time limitations for trial shall also be

“excluded in computing the time limitations specified [for retrial],” the provision affords

district courts added discretion with respect to retrials that does not pertain to initial trial: the

ability to “extend the period [of unexcluded time] for retrial” from 70 to 180 days “if

unavailability of witnesses or other factors resulting from passage of time shall make trial

within seventy days impractical.” 18 U.S.C. § 3161(e). To be sure, the qualifying language

indicates that judicial extension authority is not unbounded. Moreover, Congress’s use of

the word “resulting” in the qualifying passage signals the need for a causal link between the

factor identified and the passage of time. We do not, however, understand Congress to be

requiring “but for” causation. Rather, the statutory nexus requirement is satisfied if a factor

                                                 25
rendering retrial within 70 days impractical results from a change in circumstances occurring

some time between conclusion of the original trial and expiration of the initial 70-day retrial

period.5

       Here, each of the three factors relied on by Judge Bianco reflects changes in

circumstances between the original trial and the expiration of the 70-day retrial period that

specifically related to the practicality of retrying Shellef within 70 days of remand. In urging

otherwise, Shellef particularly challenges Judge Bianco’s reliance on the complexity of the

case on remand. He submits that once a complex case has been tried, a remand order for

retrial presents no reason for an extension of time from 70 to 180 days. Assuming that such

a conclusion is warranted in some cases, it is not warranted here. The Shellef I remand order

did not simply direct the government to retry its original complex case; rather, it required the

government to deconstruct that complex case and reassemble it into three distinct trial

presentations. No one suggests that, in these circumstances, it would have been practical to

try all three cases within 70 days of our mandate. Nor do we identify any error in the district

court’s determination that it would have been impractical to try even Shellef’s case within

that time. In addition to having to restructure its original case into new trial presentations,


       5
          To illustrate, evidence may be lost in the interim between original trial and retrial
for any number of reasons, some resulting more directly from the “passage of time” than
others, for example, an agency policy for destruction after a fixed number of years as
compared to a theft or fire, the timing of which is completely coincidental. We do not
construe § 3161(e) to treat these differently. In each, the loss of evidence reflects a change
in circumstances between the time of the original trial and the end of the 70-day period for
retrial that may warrant affording an extension if the location of substitute evidence within
70 days is impractical.

                                              26
the government confronted a new legal challenge: the disputed question of whether another

grand jury presentation was required before any trial could be pursued. The district court

correctly recognized that these circumstances injected new complexities into the case that

arose only after the original trial. As such, they reasonably qualify as “factors resulting from

passage of time,” and thus properly informed the district court’s impracticality determination

and supported its grant of an extension of time beyond the prescribed 70 days. Furthermore,

that added complexity resulting from the passage of time might also support a continuance

under § 3161(h) does not compel a narrower construction of § 3161(e) given Congress’s

intent to afford more flexibility on retrial than on the initial trial. We leave it in the first

instance to the good sense of district judges to ensure that factors that might support both a

§ 3161(e) extension and a continuance under § 3161(h) do not result in duplicative

exclusions of time from speedy trial calculations.

       Insofar as Cuellar v. United States, 553 U.S. at 568, altered the government’s burden

of proof on the money laundering charges pending against Shellef, the district court was

entitled to view that decision, issued on the 70th day following the mandate, as another new

factor resulting from the passage of time that made it impractical to commence trial without

affording the parties and the court some additional time to familiarize themselves with the

ruling and its effect on retrial.6



       6
       We note that although Cuellar issued on June 2, 2008, 91 days after our March 4,
2008 mandate, the 70-day period for retrial had not yet expired because 21 of these days were
automatically excluded for reasons discussed in the next section of this opinion.

                                              27
       Finally, the district court correctly recognized that reassignments of this case after

issuance of the mandate, first pursuant to local rule and thereafter by order of this court, to

two different judges made it impractical to retry the case without affording each judge some

additional time to familiarize himself with the complex factual scenario and the various legal

questions that could arise.

       Shellef suggests that, even if these factors support some § 3161(e) extension, they do

not support an extension to 180 days, the maximum allowed by law. This is a curious

argument to advance on a record that so strongly indicates that Shellef himself would not

have been able to proceed to trial within any shorter time given his professed dissatisfaction

with counsel of record and his delay in securing new counsel. No matter. In the absence of

legal error in the recognition of factors warranting a § 3161(e) extension, we will not readily

second-guess a district judge’s assessment of the proper duration of the extension that should

be granted. Given the record support for Judge Bianco’s identification of at least three

factors supporting extension, we identify no abuse of discretion in his determination that,

together, these factors warranted an extension of the time for retrial to 180 days.

       C.     Shellef Was Tried Within 180 Unexcluded Days of this Court’s Mandate

       Shellef submits that various errors in the district court’s calculation of excludable time

infect its conclusion that his retrial commenced within the extended 180-day period.

Specifically, he contends that Judge Bianco erred in deeming automatically excluded

pursuant to 18 U.S.C. § 3161(h)(1)(D) the 52 days from June 3, 2008, through July 24, 2008,

when Shellef’s first speedy trial motion was pending before Judge Platt, as well as the

                                               28
preceding 15 days, from May 19, 2008, through June 3, 2008, when the government’s motion

to set trial dates was pending. He further challenges Judge Platt’s conclusion that his April

10, 2008 actions satisfied the requirements of 18 U.S.C. § 3161(h)(7)(A), (B)(ii) for granting

a continuance in the interests of justice based on the complexity of the case. We need only

explain why we reject the first two arguments to affirm the challenged judgment.

              1.     Shellef’s Speedy Trial Motion

       The Speedy Trial Act states that certain periods of delay “shall be excluded in

computing the time within which” trial or retrial must be commenced. 18 U.S.C. § 3161(h).

Among these automatic exclusions is any period of 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.” 18 U.S.C. § 3161(h)(1)(D); see id. § 3161(e) (specifying that

§ 3161(h) periods of delay apply in computing time limitations for retrial). Despite the text’s

employment of language that is both mandatory—“shall be excluded”—and expansive—

“any pretrial motion”—Shellef maintains that § 3161(h)(1)(D) does not apply to motions

seeking dismissal based on a violation of the Speedy Trial Act. In support, he cites United

States v. New Buffalo Amusement Corp., 600 F.2d 368 (2d. Cir. 1979), a case arising under

an interim court plan for speedy trial that, by reference, adopted the automatic exclusions of

the Speedy Trial Act, see U.S. Dist. Ct., W.D.N.Y. Plan for Prompt Disposition of Criminal

Cases (“W.D. Plan”).7 In that context, New Buffalo concluded, without reference to the


       7
         Because the Speedy Trial Act provided a delayed effective date for certain
provisions, see 18 U.S.C. § 3163, the Act required district courts to create interim plans “for

                                              29
express language of either the plan in question or the Speedy Trial Act, that “[d]elay

occasioned by [the] pendency sub judice of appellants’ speedy trial motion is not chargeable

against appellants because . . . to do so would ‘improperly penalize defendants for their

invocation of speedy trial rules and run counter to the purposes of those rules.’” United States

v. New Buffalo Amusement Corp., 600 F.2d at 375 (quoting United States v. Didier, 542

F.2d 1182, 1188 (2d Cir. 1977)).

       As Shellef acknowledges, in United States v. Bolden, 700 F.2d 102 (2d Cir. 1983),

a subsequent case construing the Speedy Trial Act itself, this court specifically rejected the

argument that “a motion to dismiss on speedy trial grounds should be treated differently from

other pretrial motions” for purposes of applying the Act’s automatic exclusion for pretrial

motion delay, id. at 102–03. Bolden concluded that such an exception would “run[] against

the statutory language, which establishes a period of excludable time for ‘any pretrial

motion.’” Id. at 103 (emphasis in original). Although Bolden did not reference New Buffalo,

it effectively rejected its premise, i.e., that it was “anomalous to have a ‘speedy trial’ motion

delay the time when a trial must commence,” as a basis for departing from the plain language

of the Speedy Trial Act’s pretrial motion exclusion. Id. Bolden explained:

        Calculations under the Act are not necessarily related to the actual
        commencement of the trial, but only to the final date by which the trial must
        commence. . . . Moreover, the delay resulting from a speedy trial motion is
        no different from that resulting from any other pretrial motion. Finally, by



the disposition of criminal cases in accordance with this chapter,” id. § 3165; see also H.R.
Rep. 93-1508 (1974), reprinted in 1974 U.S.C.C.A.N. 7401, 7414 (discussing phase-in
period).

                                               30
        establishing in the Speedy Trial Act automatically excludable periods for
        pretrial motions, Congress assured reasonable opportunities to the
        government for response, as well as to the court for serious consideration of
        every claim that a defendant might assert by motion. An opportunity to be
        heard and due deliberation are as necessary for a speedy trial motion as for
        any other motion.

Id.

       With no discussion, Shellef conclusively asserts that Bolden was wrongly decided.

We disagree. Bolden’s holding is dictated by the plain language of the Speedy Trial Act,

which mandates the automatic exclusion —without limitation—of “delay resulting from any

pretrial motion.” 18 U.S.C. § 3161(h)(1)(D) (emphasis added); see Connecticut Nat’l Bank

v. Germain, 503 U.S. 249, 254 (1992) (“When the words of a statute are unambiguous . . .

judicial inquiry is complete.”). Further, Bolden’s explanation for the application of this

exclusion to speedy trial motions is only reinforced by the fact that a defendant who makes

a meritorious speedy trial motion will, in fact, suffer no delay in trial attributable to the

exclusion because he will secure dismissal. See 18 U.S.C. § 3162. Such a complaint can be

voiced only by a defendant who has made a non-meritorious speedy trial motion. A

defendant can hardly be heard to complain when the delay necessary to demonstrate that his

speedy trial motion lacked merit is subjected to the same exclusion as every other pretrial

motion, including meritorious defense filings. Finally, every one of our sister circuits to have

considered the question has construed the Speedy Trial Act’s automatic exclusion for pretrial

motion delay to apply to speedy trial motions. Indeed, several have done so by citing

approvingly to Bolden. See United States v. Brown, 736 F.2d 807, 809–810 (1st Cir. 1984)


                                              31
(citing Bolden); United States v. Parker, 30 F.3d 542, 548 (4th Cir. 1994); United States v.

Tedesco, 726 F.2d 1216, 1221 (7th Cir. 1984) (recognizing conflict between New Buffalo

and Bolden and agreeing with Bolden); United States v. Thompson, 866 F.2d 268, 273 (8th

Cir. 1989) (citing Bolden); Furlow v. United States, 644 F.2d 764, 768 (9th Cir. 1981);

United States v. Rogers, 921 F.2d 975, 983–84 (10th Cir. 1990); United States v. Stafford,

697 F.2d 1368, 1372–73 (11th Cir. 1983); United States v. Wilson, 835 F.2d 1440, 1444

(D.C. Cir. 1987) (citing Bolden), overruled on other grounds by Bloate v. United States, 559

U.S. 196 (2010).

       Shellef nevertheless submits that we are here obliged to follow New Buffalo rather

than Bolden because the earlier of two conflicting panel decisions must control until the

former is overruled by this court en banc or by the Supreme Court. See Jones v. Coughlin,

45 F.3d 677, 679 (2d Cir. 1995); accord Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte

Ltd., 585 F.3d 58, 67 (2d Cir. 2009) (noting that panel generally may not “reverse an existing

Circuit precedent”). The principle does not apply here because, as we have already observed,

New Buffalo’s ruling was pronounced in a case involving a court speedy trial plan. Although

that plan incorporates, by reference, the Speedy Trial Act’s automatic exclusion provisions,

it does so in language that places more emphasis on the fact that no exclusions beyond those

in § 3161(h) will be considered than on the automatic application of such exclusions.

Compare W.D. Plan Rule 10 “Exclusion of Time from Computation” (“In computing any

time limit under section 3, 4, 5, 6, or 7, only the periods of delay set forth in 18 U.S.C.

§ 3161(h) shall be excluded.”) with 18 U.S.C. § 3161(h) (“The following periods of delay

                                             32
shall be excluded in computing the time within which an information or an indictment must

be filed, or in computing the time within which the trial of any such offense must

commence.”). In any event, New Buffalo did not purport to construe the Speedy Trial Act

itself, much less the specific language here at issue. See 600 F.2d at 372 (resolving

defendants’ claim that “they were denied their rights to a speedy trial under the various

speedy trial plans of the Western District of New York”); see also United States v. McGrath,

622 F.2d 36, 39 (2d Cir. 1980) (noting that defendant’s “contentions exclusively involve the

period before July 1, 1976, and thus are not at all covered by the Speedy Trial Act”). By

contrast, Bolden did just that, ruling that the plain text of § 3161(h) admitted no exception

to the mandated exclusion for delay attributable to “any pretrial motion,” 700 F.2d at 103.

Accordingly, Bolden, and not New Buffalo, controls this appeal.

       We therefore reject as without merit Shellef’s argument that no delay attributable to

his first speedy trial motion was excludable under 18 U.S.C. § 3161(h)(1)(D).8


       8
         Insofar as the district court attributed 52 days of automatically excluded pretrial
delay to Shellef’s first speedy trial motion, we note a concern. The motion, filed by Shellef
on June 3, 2008, appears to have been fully submitted to the district court 17 days later when
Shellef’s co-defendant joined in the motion on June 19, 2008. From that point, only 30 days
of the time the motion was under advisement with the district court qualified for automatic
exclusion. See 18 U.S.C. § 3161(h)(1)(D), (H). In short, the speedy trial clock would have
begun to run again on July 19, 2008, five days before the district court’s July 24, 2008 ruling,
resulting in only 47 days of excludable delay.
        The matter does not warrant further discussion, however, for two reasons. First,
Shellef raised no such objection to the 52-day calculation in his brief on appeal and, thus, we
deem it abandoned. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). Second,
the period July 19–24, 2008, is, in any event automatically excludable under § 3161(h)(1)(D)
because of the pendency of the government’s motion to set a trial date, discussed in the
immediately following section of this opinion.

                                              33
              2.     Government’s Motion To Set Trial Date

       Shellef contends that the government’s May 19, 2008 motion for the court to set trial

dates was not really a “pretrial motion” for purposes of automatic exclusion under 18 U.S.C.

§ 3161(h)(1)(D), but only a request for the court to perform an obligatory, ministerial task.

In support, he cites United States v. Brown, 285 F.3d 959 (11th Cir. 2002), in which the

Eleventh Circuit declined to treat a document labeled “Motion for Determination of Speedy

Trial Status and/or Trial Setting” as a motion triggering automatic exclusion under §

3161(h)(1)(D). In so holding, Brown explained that the purported motion presented no

“dispute” for the court to resolve; rather, the motion only reminded the court of the need to

set a trial date to comply with the Speedy Trial Act. Id. at 961–62.

       Assuming we were to agree with Brown’s reasoning as it might apply to routine

scheduling requests, that is not a fair characterization of the government’s May 19, 2008

submission. That filing can reasonably be construed to seek court resolution of a legal point

in dispute between the parties, i.e., the need to obtain new indictments before proceeding to

retrial. At the April 10, 2008 conference, defendants maintained that new indictments were

a necessary prerequisite to retrial, and the district court seemed inclined to agree. In almost

four single-spaced typed pages supporting its request for setting trial dates without any

further grand jury presentation, the government argued that neither the ruling in Shellef I nor

law established in this and other circuits supported the defense position. On this record, the

letter is properly construed as more than a routine request for scheduling. It is effectively a

motion seeking a legal determination, i.e., that the government had the right to proceed to

                                              34
retrial on the original indictment. As such, it was properly deemed to trigger the automatic

exclusion for pretrial motions under § 3161(h)(1)(D).

       The government maintains that its motion was pending until at least October 29, 2008,

when it filed another request to set trial dates. We identify no clear error, however, in Judge

Bianco’s finding that Judge Platt implicitly denied the government’s motion on July 24,

2008, when he observed that speedy trial challenges were premature before new indictments

were returned.9 Accordingly, like the district court, we deem only that period automatically

excludable.

               3.     Speedy Trial Calculation

       In deciding whether Shellef was brought to trial within 180 days of this court’s March

4, 2008 mandate, we need focus only on the 246 days between the issuance of the Shellef I

mandate on March 4, 2008, and the November 4, 2008 bail motion because Shellef concedes

the proper exclusion of all time between November 4 and the December 14, 2009 start of

retrial. Within the relevant 246-day time frame, we conclude, for the reasons just stated, that

67 days—from May 19, 2008, to July 24, 2008—were automatically excluded pursuant to

18 U.S.C. § 3161(h)(1)(D) due to a combination of the pendency of the government’s May

19 motion to set trial dates and Shellef’s June 3 motion to dismiss the indictment for violation



       9
        The government does not, in any event, explain how an automatic exclusion could
apply through October 29, 2008, given that the last relevant submission on its May 19, 2008
motion to set trial dates, i.e., its response to the district court’s request for proposed redacted
indictments, was submitted on July 22, 2008, and 18 U.S.C. § 3161(h)(1)(H) limits
excludable delay for time when a motion is under advisement to 30 days.

                                                35
of speedy trial. Because Shellef does not dispute on appeal the district court’s exclusion of

another five days from March 28, 2008, to April 1, 2008, when his pretrial bail modification

was pending, as well as the single day of the April 10, 2008 pretrial conference, the total

number of excluded days to be subtracted from 246 is 73. When this is done, we conclude

that Shellef was retried within 173 unexcluded days after this court’s mandate and, therefore,

within the 180-day extended period for retrial reasonably granted by Judge Bianco.

       Accordingly, we conclude that there is no merit to Shellef’s claim that his conviction

was obtained in violation of his statutory right to a speedy trial.

III.   Conclusion

       To summarize, we conclude as follows:

       1. Because 18 U.S.C. § 3161(e) places no temporal limit on a district court’s authority

to extend the time for retrial up to 180 days, such an extension may be granted after

expiration of the original 70-day retrial period as long as it is based on “factors resulting from

passage of time” arising within that 70-day period.

       2. “[F]actors resulting from passage of time” reference changed circumstances

between the conclusion of the first trial and the close of the original 70-day period, which

make it impractical to afford retrial within that period.

       3. Pursuant to United States v. Bolden, 700 F.2d 102 (2d Cir. 1983), pretrial delay

during the pendency of a defendant’s motion to dismiss an indictment for a Speedy Trial Act

violation is automatically excluded under 18 U.S.C. § 3161(h)(1)(D). United States v. New


                                               36
Buffalo Amusement Corp., 600 F.2d 368, 375 (2d Cir. 1979), which concluded otherwise in

the context of a court plan, does not apply to cases controlled by the Speedy Trial Act itself.

       4. Because the government’s May 19, 2008 letter requesting the court to set a trial

date urged resolution of a disputed question of law in its favor, the district court reasonably

characterized it as a “pretrial motion” triggering the automatic exclusion of time under 18

U.S.C. § 3161(h)(1)(D).

       5. In light of these rulings, the district court acted within its discretion in extending

retrial to 180 days and in finding that Shellef was retried within 180 non-excludable days of

the issuance of this court’s mandate.

       Accordingly, the judgment of conviction is AFFIRMED.




                                              37
POOLER, C.J.:

        I respectfully dissent, because I think it error to conclude that Section 3161(e) permits a

district court to retroactively grant continuances for re-trial. The text of Section 3161(e) is silent

on the issue of when a district court may identify the factors that make trial within 70 days

impractical. However, our Court’s speedy trial jurisprudence provides us with a framework that

informs the analysis and requires finding Section 3161(e) continuances be granted prospectively.



        When a defendant is to be retried following a successful appeal, the Speedy Trial Act (the

“Act”) provides that:

                the trial shall commence within seventy days from the date the
                action occasioning the retrial becomes final . . . except that the
                court retrying the case may extend the period for retrial not to
                exceed one hundred and eighty days from the date the action
                occasioning the retrial becomes final if unavailability of witnesses
                or other factors resulting from passage of time shall make trial
                within seventy days impractical.

18 U.S.C. § 3161(e). The purpose of the Act is to both protect “the defendant from undue delay

in his or her trial” and to “benefit society by ensuring a quick resolution of criminal trials.”

United States v. Kelly, 45 F.3d 45, 47 (2d Cir. 1995).

        The Act sets forth a different set of considerations for granting continuances when a

defendant is first tried. Some exclusions are counted without the need for judicial intervention,

such as the delay from filing a pretrial motion. See 18 U.S.C. §§ 3161(h)(1)-(h)(6). Other types

of exclusions require judicial findings to take effect, such as a continuance granted to serve the

“ends of justice.” See 18 U.S.C. § 3161(h)(8)(A) (re-codified at Section 3161(h)(7)(A)). An

ends-of-justice exclusion is valid only if the district court “sets forth, in the record of the case,


                                                   1
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.”

18 U.S.C. § 3161(h)(8)(A).

       The seminal ends-of-justice continuance case in this Circuit is United States v.

Tunnessen, 763 F.2d 74 (2d Cir. 1985). Tunnessen holds that ends-of-justice continuances may

only be granted prospectively. Id. at 76-77. Our Court found the language of statute required

that “an order granting a continuance on that ground must be made at the outset of the

excludable period.” Id. A district court need not enter “the precise reasons for the decision,”

“on the record at the time the continuance is granted,” because “[a] A prospective statement that

time will be excluded based on the ends of justice serves to assure the reviewing court that the

required balancing was done at the outset.” Id. at 78. In addition to the statutory language, we

set out several critical goals served by a prospective grant: (1) “[a] prospective statement that

time will be excluded based on the ends of justice serves to assure the reviewing court that the

required balancing was done at the outset;” (2) “it puts defense counsel on notice that the speedy

trial clock has been stopped,” and (3) avoids “the risk that a district judge in a particular case

may simply rationalize his action long after the fact, in order to cure an unwitting violation of the

Act.” Id. at 78.

       We affirmed our holding in Tunnessen in United States v. Kelly, 45 F.3d 45 (2d Cir.

1995). There, we found the Act violated where the district court granted a continuance, but

articulated only grounds related to the scheduling considerations of counsel, with no reference at

all to speedy trial concerns. Id. at 47. We held that it was:

               apparent that the district court’s nunc pro tunc “ends of justice”
               finding was ineffective to toll the speedy trial clock. This is not, as

                                                  2
               the government contends, a case where defense counsel misled or
               ambushed the court. Rather, the record reflects that an adjournment
               was granted to accommodate the trial schedules of both counsel
               and the court, precisely the type of circumstance that triggers the
               requirement of Tunnessen that a contemporaneous ends-of-justice
               finding be made on the record. We therefore reaffirm our ruling in
               Tunnessen by holding that the district court’s retroactive finding
               that the May 26, 1992 continuance was granted to further the ends
               of justice was ineffective to create excludable time.

Id. at 47.

        The majority’s conclusion that a Section 3161(e) extension “may be granted even after

the initially specified 70-day period for retrial has passed” fails to adequately address these

concerns. Maj. Op. at 16. The majority ignores the benefit to all parties of notice that the

“speedy trial clock has been stopped.” Tunnessen, 763 F.2d at 78. Retroactive application of

Section 3161(e), like retroactive application of Section 3161(h)(8), is inconsistent with the

purposes of the Act because it deprives the parties of notice that an extension is being given.

Without notice, the parties are unable to object to the extension in a timely fashion and make a

record of that objection. Id. Lack of notice can never be cured.

        While a set 180-day period may not pose the same danger as an open-ended extension

under Section 3161(h)(8), it is not without dangers of its own. There is still a substantial risk

that “a district judge may . . . simply rationalize his action long after the fact,” Tunnessen, 763

F.2d at 78. We need not assume, as the majority does, that a district court judge acts in bad faith

simply by engaging in post-hoc reasoning. Indeed, here we can assume the district court both

acted in good faith and engaged in egregious post-hoc rationalization of its actions. Judge

Bianco, who inherited this case after our Court granted a writ of mandamus removing Judge

Platt, found that Judge Platt “implicitly” granted an excludable continuance. United States v.


                                                  3
Shellef, 756 F. Supp. 2d 280, 291-92 (E.D.N.Y. 2011). However, the record before our Court

amply demonstrates that Judge Platt was operating under the mistaken impression that the

speedy trial clock had not yet started ticking because the defendants had not been re-indicted.

Judge Platt agreed with Shellef’s counsel that defendants needed to be re-indicted before

proceeding with re-trial:

                [Counsel]:      It seems to me that if [the government’s attorney] is
                                talking about if, as he puts it, creating three new
                                indictments, I think he has to go back to the grand
                                jury, and we would not waive that.

                [Court]:        My stomach says you are right.

Later in the same proceeding, in response to the government’s assertion that it would try and

schedule time with the grand jury soon, the district court stated, “[y]ou should do it promptly,

because I don’t know what – well, you get a new indictment and the ball game starts with the

new indictment as far as the speedy trial.” A few moments later, the district court again

indicated new indictments would start the speedy trial clock anew. Finally, the district court

flatly stated “[w]e’ll start the clock measuring from the date they get arraigned on the new

indictment or indictments . . . .”

        Even after Shellef moved to dismiss for speedy trial violations, and even after concluding

that it had ordered an ends-of-justice exclusion at the April 2008 hearing, the district court stated

Shellef’s motion was “premature” because the indictments were no longer operative:

                The fact is that the government unquestionably needs time to
                determine how best to try two separate defendants for their specific
                offenses which, in light of the Court of Appeals finding of
                misjoinder, necessarily means that the defendants are not currently
                facing any charges. Accordingly, any accusations of speedy trial
                violations would logically appear to be premature. If, as and when
                one or more of the indictments is returned, this Court will entertain

                                                  4
               Speedy Trial Act motions.

        Judge Bianco found that Judge Platt:

               implicitly extended the time under Section 3161(e) from seventy
               days to 180 days, as he is permitted to do, because it was
               impractical for the case to be tried within the seventy-day period
               (triggered on March 4, 2008) for the reasons identified in detail on
               the record at the April 10, 2008 conference—namely, (1) the belief
               by the court and defense counsel that the government needed to
               re-indict the case in order to comply with the Second Circuit’s
               mandate that certain counts be severed for purposes of re-trial; (2)
               the possibility that the government would present new evidence at
               the re-trial; (3) the parties’ agreement that the case was complex;
               and (4) the parties’ discussion with the court of a potential trial
               date well beyond the seventy-day period. Although it is unclear
               whether Judge Platt was aware of Section 3161(e) and he did not
               explicitly extend the applicable seventy-day period under that
               Section 3161 at that conference, this Court concludes, as discussed
               in detail below, that no explicit finding is required under the plain
               language of the Speedy Trial Act to extend the time under Section
               3161(e).


Shellef, 756 F. Supp. 2d at 291-92.

        Finding a different district court judge who explicitly stated that the speedy trial clock

had not yet begun to run somehow “implicitly” extended time pursuant to Section 3161(e)

demonstrates the dangers of a retroactive grant of continuances. It will always be possible to

search the record and find that there were factors that “make trial within seventy days

impractical.” 18 U.S.C. § 3161(e). To do so eviscerates the Act’s underlying purpose and goals.

That is especially true where the record shows Judge Platt believed the speedy trial clock had not

yet begun to run, no parties moved for a continuance, no extension of time was made on the

record, and no trial date was set that would indicate time was being extended beyond the seventy

days.


                                                  5
       For the reasons given above, I respectfully dissent. I would therefore remand to the

district court to determine if the case should be dismissed with or without prejudice. See, e.g.,

Tunnessen, 763 F.2d at 79.




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