                NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 08a0446n.06
                             Filed: July 29, 2008
                                 No. 06-3675

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

ROCCO COVIELLO ,
      Defendant, Appellant
                                                     On Appeal from the United States District
                                                     Court for the Northern District of Ohio
              v.
UNITED STATES OF AMERICA ,
      Plaintiff, Appellee

______________________________/


       BEFORE: KENNEDY and MARTIN, Circuit Judges, and HOOD, District Judge.*

                                     AMENDED OPINION

       PER CURIAM. The court issued an initial opinion in this case on June 6, 2008. United

States v. Coviello, No. 06-3675, 2008 WL 2337845 (6th Cir. June 6, 2008). Subsequently, Plaintiff-

Appellee United States petitioned for panel rehearing based on three grounds for excluding

additional days from the defendant’s speedy trial calculation, which would reduce the time between

the initial appearance and trial to within the 70-day limit imposed by the Act. One of those grounds

was that the panel failed to exclude the days the government’s motion to qualify an expert witness

was still pending as to a co-defendant joined for trial with Defendant-Appellant Rocco Coviello.

Finding that we neglected to properly exclude these days, we GRANT rehearing with respect to that




       *
        The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
issue and AMEND our prior opinion to exclude an additional 26 days from Defendant’s speedy trial

clock.

         Our correction, however, does not change our disposition of this case. Even after excluding

an additional 26 days, the government still cannot meet its burden of proving 225 excludable days

so as not to run afoul of the Speedy Trial Act without relying on the exclusion for plea negotiations.

Because we find that the district court clearly erred in relying on the unsworn, and opposed,

statements of counsel to find that Defendant was engaged in active plea negotiations with the

government from March 4, 2005 to October 14, 2005, we VACATE the district court’s denial of

Defendant’s Motion to Dismiss for Speedy Trial Violation and REMAND to the district court for

such proceedings as are necessary to make specific factual findings regarding the timing of plea

negotiations.

                                         BACKGROUND

         On December 8, 2004, an indictment alleged Defendant Rocco Coviello, along with twenty-

four others, had participated in a large-scale drug-trafficking conspiracy. At his arraignment on

February 2, 2005, Defendant pled not guilty to all counts. On March 4, 2005, at Defendant’s pretrial

conference, the parties indicated that they were in plea negotiations. Over the course of the next

several months, the government also engaged in plea negotiations with many of his co-defendants,

successfully resulting in pleas of guilty. On August 2, 2005, the district court set a trial date of

September 7, 2005. The trial was apparently delayed because of the illness of the presiding judge.

Appellee’s Br. at 4. On October 5, 2005, the district court held a pretrial conference for Defendant

and his remaining co-defendant Edward Zeilstra. The parties agreed to continue plea negotiations

and a change of plea hearing for Defendant was set for October 14, 2005. At the plea hearing,


                                                  2
Defendant informed the district court that he wished to proceed to trial. A trial date was set at that

time for December 12, 2005.

       On November 29, 2005, Defendant’s case was reassigned to Judge Dan Aaron Polster

because of the hospitalization of the presiding judge. At a pretrial conference held the following day,

Judge Polster entered an order granting a continuance of the trial until January 11, 2006 and making

“ends of justice” findings.

       On January 3, 2006, Defendant filed a motion to dismiss the indictment for violation of the

Speedy Trial Act, arguing that more than 70 days passed before he was brought to trial, even after

accounting for legitimate periods of excludable delay under § 3161(h). The government responded

and Defendant filed a reply to the government’s response. On January 11, 2006, the district court

denied Defendant’s pretrial motion to dismiss the charges and the trial commenced.

       On January 17, 2006, before the trial concluded, Defendant pled guilty to two drug counts

and two money-laundering counts. Defendant’s guilty plea was conditional on the reservation of his

right to appeal the denial of his motion to dismiss. The district court sentenced him to 360 months

imprisonment, five years of supervised release, and a special assessment. Defendant now timely

appeals the denial of his Motion to Dismiss for Speedy Trial Violation.1

                                            ANALYSIS

       We review de novo the district court’s Speedy Trial Act calculation. United States v.

Salgado, 250 F.3d 438, 453 (6th Cir. 2001). Related factual findings are reviewed for clear error.

United States v. Marks, 209 F.3d 577, 586 (6th Cir. 2000). A finding of fact by the district court is


       1
        Defendant also argues, if his conviction is upheld, the 360 month sentence he received after
pleading guilty to two drug counts and two money laundering counts is substantively unreasonable.
We make no determination as to the merits of this argument at this juncture.

                                                  3
clearly erroneous when, “although there may be some evidence to support the finding, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994) (quoting Anderson v. City

of Bessemer, 470 U.S. 564, 573 (1985)) (internal quotations omitted).

       The Speedy Trial Act, 18 U.S.C. §§ 3161-74, requires that the accused be brought to trial

within 70 days of the filing of the indictment, or from the date he first appears before a judicial

officer of the court in which the charge against him is pending, whichever date last occurs. 18

U.S.C. § 3161(c)(1). Section 3161(h) excludes certain pretrial delays from the 70 day period, which

have the effect of stopping the speedy trial clock. If the United States fails to bring a defendant to

trial within 70 nonexcludable days, the indictment on which he is charged “shall be dismissed on

motion of the defendant.” 18 U.S.C. § 3162(a)(2).

       Initially, we must determine when the speedy trial clock began to run. Defendant was

indicted on December 8, 2004 and arraigned on February 2, 2005. The indictment in this case,

however, charged Defendant along with twenty-four other defendants. Because § 3161(h)(7)

excludes “[a] reasonable period of delay when the defendant is joined for trial with a co-defendant

as to whom the time for trial has not run and no motion for severance has been granted,” the

excludable delay of one co-defendant may be ascribed to all defendants. United States v. Blackmon,

874 F.2d 378, 380 (6th Cir. 1989). Thus, all defendants who are joined for trial generally fall within

the speedy trial computation of the latest co-defendant. See Henderson v. United States, 476 U.S.

321, 323 n. 2 (1986); Blackmon, 874 F.2d at 380.

       Here, the latest co-defendant, Glenn Swofford, was arraigned on March 23, 2005. Therefore,

this date triggers the running of the speedy trial clock with respect to all co-defendants joined for


                                                  4
trial, including Defendant. Consequently, the government was required by the Speedy Trial Act to

bring Defendant to trial within 70 days of March 23, 2005, barring periods of excludable delay.

However, Defendant’s trial did not begin until January 11, 2006 – 295 days from March 23, 2005.

Thus, Defendant has presented a prima facie case of a Speedy Trial Act violation. United States v.

Mentz, 840 F.2d 315, 325-26 (6th Cir. 1988). The government now bears the burden of proving by

a preponderance of the evidence that there were sufficient excludable days under § 3161(h) to reduce

the time between the initial appearance and trial to within the 70-day limit imposed by the Act.

United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996). Specifically, the government must show

that 225 days were properly excluded.

       Dates on which the district court held hearings concerning Defendant or any co-defendant

joined for trial are excludable under § 3161(h)(1). Additionally, the filing of a pretrial motion by

any party stops the clock until the motion has been disposed. 18 U.S.C. § 3161(h)(1)(F). We,

however, do not exclude the date of filing – unless the date was also the date an order was entered

resolving the motion. United States v. Thomas, 49 F.3d 253, 256 (6th Cir. 1995). We also consider

“[a] notice of change of plea [as] a motion requiring hearing and, as a result, the time from the filing

of the notice of hearing through the conclusion of the plea hearing is excludable.” United States v.

Moss, No. 98-4273, 2000 WL 553901, at *7 (6th Cir. April 26, 2000) (unpublished disposition); see

Jenkins, 92 F.3d at 440.

       As discussed supra, Defendant’s speedy trial clock started on March 23, 2005, when the

latest co-defendant joined for trial, Glenn Swofford, was arraigned. Because co-defendant David

Taverna, Sr. filed a notice of change of plea on March 18, 2005, we exclude the time from the filing

(starting on March 23, 2005) through the conclusion of the plea hearing on April 19, 2005, when the


                                                   5
district court adopted the report and recommendation of the magistrate judge in accepting Taverna’s

guilty plea. This yields 28 excludable days.2

       April 22, 2005 is excludable because the pretrial conference of co-defendant Swofford was

held that day, adding 1 excludable day. Co-defendant Mark Mendivil filed a notice of change of plea

on April 25, 2005. While this date is not excludable as we do not exclude the date of filing, Thomas,

49 F.3d at 256, we do exclude the time from April 26,2005 until the conclusion of Mendivil’s plea

hearing on May 26, 2005. This adds 31 excludable days. The government filed a pretrial motion

for interlocutory sale of property owned by Defendant on May 26, 2005 and the district court entered

an order resolving this motion on May 27, 2005. Therefore, the date the order was entered is

excludable, yielding 1 excludable day. May 31, 2005 is excludable due to the pretrial conference

of co-defendant Swofford. This adds 1 excludable day.

       On June 3, 2005, a joint motion was filed concerning co-defendant Swofford. The district

court entered an order granting this motion on June 8, 2005, thus adding 5 excludable days. Two

motions were filed by co-defendant Jesus Alcantar on June 15, 2005. The district court entered an

order denying one motion on June 30, 2005. Therefore, 15 excludable days passed from the filing

of the pretrial motion until its disposition. The district court did not rule on the second motion filed

by co-defendant Alcantar until August 9, 2005; however, only 30 days from the government’s




        2
         While pretrial conferences, hearings, motions, and notices of change of plea may provide
alternative grounds for excludability, we decline to enumerate them in our calculation for the sake
of clarity.

                                                   6
response filed on June 28, 2005 are excludable. Mentz, 840 F.2d at 326-27. Therefore, an additional

28 excludable days passed between June 28, 2005 and July 28, 2005.3

       August 2, 2005 adds 1 excludable day for the change of plea hearing of co-defendant David

Baus. The district court issued a trial order on that day, setting September 7, 2005 as the trial date

for Rocco Coviello, Andreas Hatzilouloudes, Ronald Bordieri, and Edward Zeilstra.4 Thus, after

August 2, 2005, as to Defendant Rocco Coviello, only co-defendants Hatzilouloudes, Bordieri, and

Zeilstra were “joined for trial” within the meaning of § 3161(h)(7). Consequently, the actions of any

other defendant named in the indictment did not stop Defendant’s speedy trial clock.

       On August 5, 2005, the government filed a motion for the interlocutory sale of property

owned by Defendant. The date of the filing is not excludable, but 6 excludable days passed before

the district court granted the motion on August 11, 2005. Co-defendant Zeilstra filed a motion on

August 18, 2005, which was granted on August 19, 2005, thus adding 1 excludable day. Also on

August 19, 2005, co-defendant Bordieri filed a notice of change of plea. Because we treat a notice

of change of plea as a pretrial motion requiring a hearing, we exclude the time from the filing

through the conclusion of the plea hearing on August 26, 2005. This yields 7 excludable days.

       The government filed a motion to qualify an expert witness as to Defendant and Zeilstra on

August 24, 2005. In our initial opinion, because the government requested a pretrial hearing on this

matter, we excluded the time from the filing through Defendant’s response to the motion on

September 8, 2005, stipulating to the qualification of the expert witness (and thereby eliminating the



       3
           June 29-30, 2005 have been counted as otherwise excludable due to Alcantar’s first pending
motion.
       4
           There is nothing in the record to explain why the trial did not begin on this date.

                                                    7
need for the district court to hold a hearing on the matter). We thus found only 13 days properly

excludable because of the pending motion.5 As pointed out by the government in its petition for

rehearing, however, we neglected to consider that Zeilstra had not responded to the motion to

qualify, and thus it was still pending as to a co-defendant joined for trial. Consequently, we must

exclude the additional days that the motion remained pending as to Zeilstra, so long as he was

“joined for trial” with Defendant.

       Zeilstra never responded to the government’s motion to qualify an expert witness. On

October 14, 2005, however, the district court issued a separate trial order, setting Defendant’s

individual trial date for December 12, 2005.6 As of this date, co-defendant Zeilstra was no longer

“joined for trial” with Defendant for purposes of § 3161(h)(7) and his actions no longer affected

Defendant’s speedy trial clock.

       Accordingly, we find that we must exclude from Defendant’s speedy trial calculation any

additional days (not otherwise counted as excludable) between August 24, 2005 and October 14,

2005 while the government’s motion was pending as to a co-defendant then joined for trial. The

motion to qualify an expert was pending, and the days were not otherwise excludable, from

September 9, 2005 to October 4, 2005.7 This adds 26 excludable days previously not excluded.




       5
        August 25-26, 2005 have been counted as otherwise excludable because of the pendency of
co-defendant Bordieri’s notice of change of plea.
       6
           The indictment was dismissed against co-defendant Hatzilouloudes on September 19, 2005.
       7
        The remaining days that the motion was pending, October 5-14, 2005, were counted as
otherwise excludable in our initial opinion because of a pretrial conference, active plea negotiations.
and the pendency of Defendant’s notice of change of plea.

                                                  8
        As set forth in our initial opinion, October 5, 2005 adds 1 excludable day for the pretrial

conference of Defendant and Zeilstra. The minutes of these proceedings reveal that plea negotiations

were to continue. Notices of change of plea were entered as to each co-defendant on the following

day, October 6, 2005. Therefore, there is sufficient evidence to find that the parties were engaged

in active plea negotiations on October 6, 2005, making this day excludable from the speedy trial

clock. Bowers, 834 F.2d at 609-10. This adds 1 excludable day. We also exclude the time from the

filing of the notices of change of plea until the conclusion of the plea hearings. However, on October

14, 2005, the date of Defendant’s scheduled plea hearing, he“decided not to change his plea.”

Docket No. 465. We will exclude the time from Defendant’s notice of change of plea through the

resolution of this “pretrial motion” by his declaration of his intent to continue to trial at his scheduled

plea hearing date. See Mentz, 840 F.2d at 330-32 (defendant’s notice of intent to change plea tolls

the clock). This adds 8 excludable days.

        On November 29, 2005, Defendant’s case was reassigned to Judge Dan Aaron Polster

because of the hospitalization of the presiding judge. November 29, 2005 adds 1 excludable day

because of the pretrial conference of Defendant. On November 30, 2005, without objection from

either party, Judge Polster entered an order granting a continuance of the trial until January 11, 2006

and making “ends of justice” findings. 18 U.S.C. § 3161(h)(8)(A). This “ends of justice”

continuance adds 43 excludable days.

        Therefore, according to this Court’s calculations thus far, a total of 218 days can be properly

excluded from Defendant’s speedy trial clock. Without more, this would fall short of the 225 days

that the government bears the burden of proving excludable to reduce the time between the initial

appearance and trial to within the 70-day limit imposed by the Act.


                                                    9
       To meet its burden of proving sufficient excludable days so as not to run afoul of the Speedy

Trial Act, the government relies primarily on the exclusion for plea negotiations recognized by this

Court in United States v. Bowers, 834 F.2d 607, 609-10 (6th Cir. 1987), and later affirmed in United

States v. Dunbar, 357 F.3d 582, 593(6th Cir. 2004). The government argues, and the district court

found, that Defendant was engaged in active plea negotiations with the government from March 4,

2005 to October 14, 2005, thus excluding 206 days from the calculation. When coupled with the 43

days excludable for the “ends of justice” continuance, the government argues that a total of 249 days

are excludable from the speedy trial calculation, and it brought Defendant to trial within the 70-day

limit imposed by the Act.

       We find, however, that the district court clearly erred in finding that Defendant was engaged

in active plea negotiations with the government from March 4, 2005 to October 14, 2005. In its

order denying Defendant’s Motion to Dismiss for Speedy Trial Violation, the district court

erroneously relied on a few docket entries and the unsworn statements of the government in its

motions to find that the parties were engaged in active plea negotiations for 206 days. The district

court based its finding that the parties began plea negotiations on March 4, 2005 on the Minutes of

a Pretrial Conference. Docket No. 180. The district court relied on the unsworn statements of

counsel in motions submitted to the court to find that the government sent Defendant a proffer letter

on March 18, 2005 (statement made in Motion to Qualify Expert Witness: Docket No. 417); he met

with federal agents on May 10, 2005 (statements made in Motion to Qualify and Response to Speedy

Trial Motion: Docket Nos. 417, 534); and the government sent him a proposed plea agreement on

June 30, 2005 (statements made in Motion to Qualify and Response to Speedy Trial Motion: Docket

Nos. 417, 534). Most importantly, though, the district court did not conduct a hearing before finding


                                                 10
that active plea negotiations continued until October 14, 2005, despite the fact that the unsworn

submissions by counsel for both parties contradicted each other regarding the length of plea

negotiations. Compare Government’s Response to Motion to Dismiss: Docket No. 534 at 8

(claiming “from at least Rocco Coviello’s March 4, 2005, pretrial conference, there were ongoing,

substantive discussions . . . [until] [p]lea negotiations ceased (failed) . . . as of October 14, 2005 ”)

with Defendant’s Reply to Government’s Response: Docket No. 535 at 3 (asserting “the negotiations

ended over 100 days before the first trial setting of December 12, 2005”).8

        Despite our deferential clearly erroneous standard of review, we are left with a definite and

firm conviction that the evidence before the district court was insufficient to support a finding that

Defendant and the government were continuously engaged in active plea negotiations from March

4, 2005 to October 14, 2005. The only “evidence” before the district court regarding the timing and

length of the negotiations was the unsworn, and contradictory, assertions of counsel for both parties.

This is insufficient to support a factual finding.

        We have no doubt, though, that extensive plea bargaining between Defendant (as well as his

co-defendants joined for trial) and the government did occur in this case and that time should be

excluded from his speedy trial clock. A look at the docket in this case reveals the existence of such

plea negotiations. The Minutes of a Pretrial Conference held on March 4, 2005 indicate Defendant

and the government were to continue plea negotiations at that time. Months later, a change of plea




        8
        This factual dispute over when plea negotiations failed is significant because if Defendant’s
assertion is true, and plea negotiations ended more than 100 days before December 12, 2005 (on
September 3, 2005), then by our count, even if we exclude the time from March 4, 2005 to
September 3, 2005 for plea negotiations, 71 non-excludable days passed after plea negotiations
ceased.

                                                     11
hearing for Defendant was set for October 14, 2005. Furthermore, almost all of his co-defendants

pled guilty prior to Defendant’s trial date as a result of extensive negotiations during this period.

       Even though there is some evidence that plea negotiations occurred, the Speedy Trial Act

demands a day-by-day accounting for excludability. We find that there is not sufficient evidence

before us to conduct such a calculation. Therefore, we remand to the district court for such

proceedings as are necessary to determine whether Defendant (or any co-defendant joined for trial)

was engaged in active plea negotiations with the government on days not otherwise excludable by

our calculation.

                                         CONCLUSION

       Accordingly, we GRANT rehearing to AMEND our prior opinion to exclude an additional

26 days from Defendant’s speedy trial clock to account for the time a motion was pending as to a co-

defendant still joined for trial. Yet, because the government cannot met its burden of proving 225

excludable days so as not to run afoul of the Speedy Trial Act without relying on the exclusion for

plea negotiations, and because there is insufficient evidence before us to conduct a day-by-day

accounting of these plea negotiations, we VACATE the district court’s denial of Defendant’s

Motion to Dismiss for Speedy Trial Violation and REMAND to the district court for such

proceedings as are necessary to make factual findings regarding the days engaged in active plea

negotiations.




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