                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0504n.06
                                                                                            FILED
                                           No. 11-3127
                                                                                       May 15, 2012
                          UNITED STATES COURT OF APPEALS
                                                                                LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT     FOR     THE
v.                                                       )         SOUTHERN DISTRICT OF
                                                         )         OHIO
HOMER LEE RICHARDSON,                                    )
                                                         )                           OPINION
       Defendant-Appellant.                              )




BEFORE:        BATCHELDER, Chief Judge, McKEAGUE, Circuit Judge, and QUIST, Senior
               District Judge.*

       McKeague, Circuit Judge.          Defendant-Appellant Homer Richardson (“Richardson”)

appeals the district court’s order denying his motion to dismiss based on the Speedy Trial Act.

Richardson claims that the court failed to sufficiently justify its decision to exclude days stemming

from six separate continuances from the speedy-trial clock pursuant to 18 U.S.C. § 3161(h)(7)(A).

For the reasons that follow, we AFFIRM the district court’s order.

                                       I. BACKGROUND

       During the late 1990s and early 2000s, Richardson promoted fraudulent trust products in

connection with his employment at the Aegis Company. He also interfered with Internal Revenue




       *
       The Honorable Gordon J. Quist, United States Senior District Judge for the Western District
of Michigan, sitting by designation.
No. 11-3127
United States v. Homer Richardson

audits, aided in the filing of a false individual income tax return, and signed his own false tax

returns.

        Richardson, along with his co-defendant in this case, Robert Welti (“Welti”), and four others

were previously indicted on April 7, 2005 for various violations of tax law. Richardson was charged

with conspiracy to defraud the United States, aiding and assisting in the filing of a false income tax

return, and three counts of filing a false income tax return. Two of Richardson’s co-defendants in

that case pled guilty, but the district court dismissed the indictment without prejudice as to the other

defendants (including Richardson) due to a violation of the Speedy Trial Act.

        Richardson and Welti were indicted again on November 6, 2008. Richardson was arraigned

on December 1, 2008, and entered a plea of not guilty. During the course of preparing for trial,

numerous motions were filed on behalf of Richardson, and the case was continued six times. On

June 23, 2010, Richardson filed a motion to dismiss due to a speedy trial violation, which was denied

on June 28, 2010. The same day, the district court accepted Richardson’s conditional guilty plea

under Federal Rule of Criminal Procedure 11(a)(2) in which he preserved the right to appeal the

court’s disposition as to his Speedy Trial Act claim. Richardson conditionally pled guilty to (1) one

count of obstructing or impeding the due administration of the IRS in violation of 26 U.S.C. §

7212(a); (2) one count of aiding and abetting the filing of a false income tax return in violation of

26 U.S.C. § 7206(2); and (3) three counts of filing false income tax returns in violation of 26 U.S.C.

§ 7206(1). He was sentenced to 30 months’ incarceration, each count to run concurrently, and was

allowed to continue his release pending the outcome of his appeal. This timely appeal followed.



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United States v. Homer Richardson

                                           II. ANALYSIS

       The Speedy Trial Act of 1974, 18 U.S.C. § 3161, requires that a criminal defendant’s trial

commence within seventy days after he is charged or makes an initial appearance, whichever is later,

and entitles the defendant to dismissal of the charges if that deadline is not met. § 3161(c)(1). But

because criminal cases vary widely, and there are valid reasons for delay in some cases, the Act

excludes delays due to certain, enumerated events from the seventy-day period. § 3161(h); Zedner

v. United States, 547 U.S. 489, 497–98 (2006). As relevant here, it excludes:

       Any period of delay resulting from a continuance granted by any judge on his own
       motion or at the request of the defendant or his counsel or at the request of the
       attorney for the Government, if the judge granted such continuance on the basis of
       his findings that the ends of justice served by taking such action outweigh the best
       interest of the public and the defendant in a speedy trial.

§ 3161(h)(7)(A). When granting such an ends-of-justice continuance, a district court should weigh

factors such as whether a miscarriage of justice could result, the complexity of the case and time

needed for preparation, and the continuity of counsel. § 3161(h)(7)(B).

       But the Act also warns that a delay resulting from an ends-of-justice continuance will not be

excludable from the seventy-day period “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.” §

3161(h)(7)(A). It is upon this provision that Richardson relies.

       Richardson argues that the district court did not properly form and articulate its reasons for

excluding six continuances from the speedy-trial clock in the interests of justice. In Zedner v. United



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United States v. Homer Richardson

States, 547 U.S. at 506–508, the Supreme Court considered the statutory requirement that district

courts place the reasoning behind ends-of-justice continuances on the record. The Court noted that

       [a]lthough the Act is clear that the findings must be made, if only in the judge’s
       mind, before granting the continuance (the continuance can only be “granted ... on
       the basis of [the court’s] findings”), the Act is ambiguous on precisely when those
       findings must be “se[t] forth, in the record of the case.” However this ambiguity is
       resolved, at the very least the Act implies that those findings must be put on the
       record by the time a district court rules on a defendant’s motion to dismiss.

Id. at 506–507. The court expressed that, the best practice would be “for a district court to put its

findings on the record at or near the time when it grants the continuance.” Id. at 507 n.7. The Court

held that, “without on-the-record findings, there can be no exclusion [pursuant to section

3161(h)(7)(A)].” Id. at 507. The district court in Zedner had not made any on-the-record findings

at the time it granted the continuance, and so the Court held that the district court’s later “passing

reference to the case’s complexity” when it denied the defendant’s motion to dismiss would not

suffice. Id. Richardson correctly asserts that Zedner underscores the statutory requirement that

district courts make on-the-record findings to justify the decision to grant ends-of-justice

continuances. However, for the reasons that follow, the district court in this case fulfilled that

requirement.

        A district court’s legal interpretation of the Speedy Trial Act is subject to de novo review.

See, e.g., United States v. Robinson, 887 F.2d 651, 656 (6th Cir. 1989). However, whether the

district court has properly determined if certain days should be included or excluded from the trial

clock is reviewed for an abuse of discretion. United States v. Howard, 218 F.3d 556, 563 (6th Cir.

2000); see also United States v. Tinson, 23 F.3d 1010, 1012 (6th Cir. 1994). Richardson argues that


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United States v. Homer Richardson

the district court improperly excluded days from the speedy-trial clock stemming from six

continuances. We consider each continuance in turn.

A. Ends-of-Justice Continuances

       “To conduct a proper ends-of-justice analysis when granting a continuance, a district court

must state in the record, either orally or in writing, its reasons for determining that granting the

continuance outweighs the public’s and the defendant’s interest in a speedy trial, based on the factors

set forth in (h)(7)(B).” United States v. Stone, Nos.10-1748, 10-1753, 2012 WL 432251, at *3 (6th

Cir. Feb. 13, 2012) (citing 18 U.S.C. § 3161(h)(7)(A)). “The court does not have to give its reasons

contemporaneously with the grant of the continuance; it need only give the reasons no later than the

ruling on the defendant’s motion to dismiss on Speedy Trial Act grounds.” Id. (citing United States

v. Crawford, 982 F.2d 199, 204 (6th Cir. 1993)); see also Zedner, 547 U.S. at 507 n.7 (considering

a contemporaneous statement to be “best practices”). In reviewing each continuance, we consider

whether (1) the district court abused its discretion in finding that the continuance should be

excluded; and (2) the district court properly placed its reasoning on the record. We find no abuse

of discretion.

       1. The January 7, 2009 Continuance

       The trial was initially set for January 12, 2009. On December 17, 2008, Richardson, who

was proceeding pro se at the time, moved for a continuance of the trial date. On December 31, 2008,

Richardson asked to be represented by counsel, and the court made arrangements to appoint an

attorney Richardson had chosen. The court suggested a trial date of March 30, 2009, and

Richardson’s newly appointed counsel indicated that he could be prepared by then. At the close of

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United States v. Homer Richardson

the conference, the court noted that the continuance was in the interest of justice for both Richardson

and co-defendant Welti, stating “I will designate the period between now and the current trial date

of March 30th as a period of delay that is in the interest of justice, and that the continuance

outweighs the best interest of the public and the two defendants in this case in a speedy trial.” (Page

ID # 1768.) The court also noted that the documents were voluminous, but many of them were the

same as the evidence produced in the first indictment. Richardson responded that his counsel needed

time to review the documents. On January 7, 2009, the court entered an order stating that the delay

was in the interests of justice because the defendants needed time to review the substantial evidence

in the case.

        “Defense counsel’s need for additional time to prepare an unusually complex case is an

appropriate reason for granting a continuance.” Stone, 2012 WL 432251, at *3. Therefore, there is

no abuse of discretion in subtracting this continuance from the speedy-trial clock. Furthermore, the

court put its specific reasoning—that the defense needed time to review records and prepare for

trial—on the record three separate times, so this ends-of-justice continuance was properly excluded

from the speedy-trial clock. Zedner, 547 U.S. at 506–508.

        2. The March 16, 2009 Continuance

        On March 16, 2009, Richardson’s counsel made an oral motion to continue the trial in order

to further review discovery produced by the government. During this conference, Richardson’s

counsel stated that he was having various problems with discovery in the case. He stated that he was

having problems obtaining discovery from Richardson’s former counsel in the earlier case, he

referenced the voluminous nature of the discovery, his trouble finding and obtaining certain

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United States v. Homer Richardson

discovery materials, the confusing ways in which certain discovery materials had been labeled, and

trouble searching through discovery documents.

        After listening to the various reasons Richardson’s counsel set forth in support of the

continuance, the court asked Richardson’s counsel “[i]s the bottom line here that you’re not going

to be ready . . . by the 30th?” (Page ID # 1786.) In response, Richardson’s counsel stated “[t]here

is no way, shape or form.” (Id.) When the judge asked Richardson’s counsel when he would be

ready for trial, he said that he was thinking ninety days, but that he should be ready to go in sixty.

Based on this context, the court found a continuance served the ends of justice for both Richardson

and Welti, stating “it certainly seems that the ends of justice are served by rescheduling the trial and

affording [Richardson’s counsel] an adequate time to prepare and assess the case, and that outweighs

the public and the government’s interest in a trial, as well as the defendants’—plural—interest in a

speedy trial.” (Page ID # 1795.) Accordingly, the court excluded the time from March 16 to June

8, 2009, from the speedy-trial clock, and the trial was set for June 8, 2009.

        The court’s explanation for excluding this time from the speedy trial clock was sufficient

under Zedner, 547 U.S. at 506–508, because given the context, the record clearly establishes that

a continuance serves the ends of justice. Furthermore, in its order denying Richardson’s motion to

dismiss under the Speedy Trial Act, the court restated that “the continuance was necessary in the

ends of justice to allow proper trial preparation.” (Page ID # 1436.) This ends-of-justice continuance

was also properly excluded. See United States v. Stewart, 628 F.3d 246, 253 (6th Cir. 2010)

(upholding an ends-of-justice consideration for a continuance where defense counsel explained in

the unopposed motion that the case’s complexity warranted continuance, and where the court stated

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No. 11-3127
United States v. Homer Richardson

on the record that the continuance was in the interest of justice because counsel needed more time

to prepare).

       3. The June 9, 2009 Continuance

       Richardson moved for another continuance on May 14, 2009, claiming that the volume of

discovery documents, coupled with trouble getting documents from previous counsel and viewing

items on a hard drive prevented him from being prepared. The Government did not oppose that

motion, but suggested that ninety days would be adequate. At the June 9, 2009 hearing on the

motion, Richardson’s counsel spoke at length, emphasizing the complexity of the trusts involved in

the case, and requested a continuance of six months. The court indicated that, if it were to grant the

six-month continuance, then it would not entertain any more continuances based on Richardson’s

counsel’s need for time to prepare.

       In response to the argument, the court made the following finding:

       And the new schedule is in response to [Richardson’s counsel’s] motion in the
       interest of justice, and it supersedes and outweighs the government’s interest in a
       speedy trial, the defendant’s interest in the speed of the trial, and the public’s interest
       in a speedy trial in order to permit [Richardson’s counsel] to adequately prepare for
       the trial, or whatever other strategy or decision he might suggest to Mr. Richardson.

(Page ID # 827.) The court confirmed with Richardson, co-defendant Welti, and the Government

that each agreed to the extension and the new schedule, which set the trial date for January 5, 2010.

       The court correctly found that this continuance was in the interests of justice and stated its

findings on the record contemporaneously with that finding. Thus, the court met the requirements

of Zedner, 547 U.S. at 506–508. No further statement from the court was needed. See id.

Accordingly, this continuance was also properly excluded from the speedy-trial clock.

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United States v. Homer Richardson

       4. The November 30, 2009 Continuance

       On October 12, 2009, co-defendant Welti filed a motion requesting that his stand-by counsel

be appointed as his primary attorney. But Welti’s stand-by counsel instead moved to withdraw from

the case in order to take a new position with the Federal Public Defender’s Office. In light of this

situation, new counsel was appointed for Welti.

       On November 6, 2009, Richardson moved to continue the case again, this time for “at least

3 months, or until at least April 6, 2010 to enable Richardson and his counsel to properly prepare for

his defense.” (Page ID # 900.)

       At the next status conference, on November 17, 2009, Welti’s new counsel moved for a

continuance. Then Richardson’s counsel stated that he had recently learned about thirty boxes of

discovery materials he had not yet reviewed, and “that continuance will enable us to go through those

boxes.” (Page ID # 983.) In response, the court addressed the Government, stating that it would not

allow “the trial date to be manipulated—for lack of a better term—by the government in its failure

to produce discovery in a timely fashion.” (Page ID # 984.) A discussion followed that clarified the

status of the discovery materials. Welti’s counsel suggested a severance so that Richardson’s case

could move forward independently of Welti’s, and Richardson responded “[i]f we could have

effective assistance of counsel, that would be fine. But I don’t know how we could have effective

[assistance] if he’s not ready.” (Page ID # 997–98.) Thus, Richardson not only refused to sever the

cases, he also acknowledged that he was not prepared for trial and would need the extra time given

by the continuance.



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United States v. Homer Richardson

       The court filed a written order on November 30, 2009, granting both defendants’ motions for

continuance. The court found that “the ends of justice in granting this continuance to allow proper

trial preparation outweighs the Defendants’ and public’s interest in a speedy trial.” (Page ID # 978.)

       The court’s statements on the record and written findings articulated in its contemporaneous

order amount to a proper ends-of-justice finding, particularly when considered in the context of

Richardson’s own motion to continue and his refusal to sever his case from Welti’s. See Stewart,

628 F.3d at 253; see also Zedner, 547 U.S. at 506–508. Therefore, this continuance was properly

excluded from the speedy-trial clock.

       5. The April 13, 2010 Continuance

       On March 24, 2010, Welti’s new counsel asked for a few more weeks in order to review

discovery and prepare for trial, which the court granted, stating that the need for the defense to be

prepared for trial outweighed the interest in a speedy trial. At a conference on April 13, 2010, the

parties met with the court to set a date for trial, which was scheduled for June 29, 2010. The court

excluded from the speedy-trial clock the time between April 13, 2010 and June 29, 2010, finding that

Welti’s counsel needed that time to fully prepare for trial. Considered in the context of the

conference, in which Welti’s counsel stated that he had an ongoing trial in Kentucky that would

prevent him from being prepared for this trial before the June 29 date, and further considering that

Richardson had expressly declined to sever the cases, this continuance was properly excluded in the

interests of justice. See Stewart, 628 F.3d at 253; see also Zedner, 547 U.S. at 506–508. In its

order denying Richardson’s motion to dismiss on Speedy Trial Act grounds, the court reiterated that

the continuance was necessary to allow proper trial preparation.

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United States v. Homer Richardson

         Based on this analysis, and in light of the general rule that only one speedy-trial clock

governs both defendants where the court has not severed the cases, 18 U.S.C. § 3161(h)(7); see also

see United States v. Cope, 312 F.3d 757, 776 (6th Cir. 2002), the district court did not abuse its

discretion in granting each continuance complained of here. Moreover, Richardson makes no

attempt in his briefs to argue that he was prejudiced by the various continuances, the majority of

which he requested. “[I]n order to obtain a reversal of a conviction on the basis of a violation of the

Speedy Trial Act where a district court exercises its discretion to grant a continuance for the ends

of justice, a defendant must show ‘actual prejudice.’” Stewart, 628 F.3d at 254 (citing United States

v. Gardner, 488 F.3d 700, 718 (6th Cir. 2007) (refusing to overturn the defendant’s conviction based

on a violation of the Speedy Trial Act where the “period of delay occasioned by the granting of [two

of the defendants’] motions was reasonable”)). Accordingly, Richardson’s claim of error is without

merit.

B. Failure to Set a Date Certain for Trial

         Richardson also complains the continuance granted on November 30, 2009 was open-ended

and the court did not balance the relevant factors militating against setting a date certain for trial.

The Speedy Trial Act requires that a date certain for trial be set “at the earliest practicable time.”

18 U.S.C. § 3161(a). However, this Court, along with many other circuits, permits reasonable open-

ended continuances. See, e.g., United States v. Sabino, 274 F.3d 1053, 1064–65 (6th Cir. 2001)

(“[W]e will follow the rule of the First, Third, Fifth, and Tenth Circuits and hold that open-ended

ends-of-justice continuances for reasonable time periods are permissible in cases where it is not



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United States v. Homer Richardson

possible to . . . set specific ending dates.”) (amended and superceded on other grounds by 307 F.3d

446 (en banc)).

       Here, a date certain was set at the earliest practicable time. In granting the November 30,

2009 continuance, the district court left the date for trial open as a result of this continuance at

Welti’s counsel’s request, a request to which Richardson agreed. At the time of the hearing, Welti’s

counsel had just joined the case, and could not inform the court with any certainty of when he could

be prepared for trial. Specifically, the court asked Welti’s counsel “[w]ell, you think you can be

ready in the spring?” and Welti’s counsel responded “I don’t know . . . I will be filing a motion for

a continuance of the trial date when I get a handle—some handle at least on the documents. I would

suggest that . . . we have another get-together to discuss where we are, where I am in particular . .

. rather than arbitrarily pick a trial date.” (Page ID # 981–82.) Richardson was asked whether he

would like to sever his case from Welti’s in order to speed up the process, and Richardson declined,

acknowledging that his attorney needed more time to prepare. After some discussion, the court noted

that “the next time we meet, we’re gonna make a schedule that is going to be hard and fast” and

scheduled a conference for March 24, 2010. (Page ID # 998.)

       Given this context, particularly the fact that Richardson did not agree to sever his case from

Welti’s, the March 24, 2010 conference was the “earliest practicable time” that a date certain could

be set. See § 3161(a); see also Zedner, 547 U.S. 498–99 (stating that courts have discretion to

“accommodate limited delays for case-specific needs”). Accordingly, this claim of error also fails.




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United States v. Homer Richardson

                                       III. CONCLUSION

       Richardson has not shown that the continuances he contests—most of which he

requested—prejudiced him in any way. Moreover, the district court adequately set forth the ends-of-

justice basis for each of the continuances so as to exclude them from the speedy-trial clock and set

a date certain for trial at the earliest practicable time. Accordingly, the district court’s order is

AFFIRMED.




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