                                  PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT
         ________________

               No. 17-2484
            ________________

     UNITED STATES OF AMERICA

                     v.

             KEVIN L. REESE,

                       Appellant
            ________________

 Appeal from the United States District Court
   for the Middle District of Pennsylvania
(D.C. Criminal Action No. 3:15-cr-00299-001)
 District Judge: Honorable James M. Munley
              ________________

         Argued September 25, 2018

       Before: AMBRO, CHAGARES,
   and GREENAWAY, JR., Circuit Judges

       (Opinion filed: March 5, 2019)
Leigh M. Skipper
   Chief Federal Defender
Jacob Schuman, Esquire (Argued)
Brett G. Sweitzer, Esquire
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

      Counsel for Appellant

David J. Freed
  United States Attorney
Michelle L. Olshefski, Esquire (Argued)
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503

      Counsel for Appellee

                    ________________

               OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge


      This is one of the rare cases in which the Speedy Trial
Act, 18 U.S.C. §§ 3161–3174, requires that we vacate a
conviction and remand for dismissal of the indictment.




                              2
       Kevin L. Reese was convicted in the District Court of
six counts each of wire fraud and aggravated identity theft.
His sentence was 70 months’ imprisonment, restitution, and
three years of supervised release. He appeals several issues
affecting his conviction and sentencing, but we need address
only one.

       Three weeks before the scheduled date of Reese’s trial,
after more than 50 days had expired on Reese’s 70–day time
limit under the Speedy Trial Act (for convenience, the “Act”),
the District Court ordered a sua sponte continuance that
postponed Reese’s trial by an additional 79 days, at least 71
of which were not automatically excluded under the Act. At
the time the continuance was entered, the District Court
neither cited the Act, nor stated that time would be excluded,
nor made findings of fact that would justify an exclusion of
time under it. As a result, the 70–day time limit to bring
Reese to trial expired long before his trial began.

       When Reese moved before trial to dismiss the
indictment under the Act, the District Court should have
granted the motion. The statutory remedy is to vacate
Reese’s conviction and remand for dismissal of the
indictment. The Court should, based on the Act, determine in
the first instance whether the dismissal is with or without
prejudice.

I.     Background

       In December 2015 a federal grand jury in the Middle
District of Pennsylvania returned an indictment charging
defendant-appellant Kevin L. Reese with six counts of wire
fraud and six counts of aggravated identity theft related to his
work as an office manager at Sheehan Pipe Line and
Construction Company in Dunmore, Pennsylvania. The
indictment alleged that, between November 2014 and August




                               3
2015, Reese devised and implemented a scheme to defraud
Sheehan by cutting false checks on Sheehan’s behalf to other
employees and then cashing them in their names.

        Soon after he was indicted, Reese retained defense
attorney Joseph D’Andrea for all proceedings in the trial
court. After his arraignment on January 4, 2016, he entered a
plea of not guilty as to all counts. On January 11, 2016, the
District Court entered an order scheduling jury selection and
the start of trial for March 7, 2016.

       Between February 23 and September 1, 2016, the
Court granted six motions for continuance, five filed by the
Government with D’Andrea’s consent, and one filed by
D’Andrea on Reese’s behalf. For each of these orders the
Court excluded time under the Speedy Trial Act on the
ground that additional time would enable the Government and
Reese to continue negotiating a potential plea deal. As a
result of these continuances, Reese’s trial was scheduled for
October 24, 2016, with a pretrial conference on October 14.

       On October 12, 2016, however, the District Court sua
sponte entered an order rescheduling Reese’s trial for
December 5, 2016. The order did not state a reason for the
continuance other than to say it was “in accordance with the
Court’s calendar.” The order also stated that the delay in
Reese’s trial occasioned by this order—a period of 42 days—
would be excluded under the Speedy Trial Act because “[t]his
Court finds that the ends of justice served by this order
outweigh the best interest of the public and the defendant in a
speedy trial pursuant to 18 U.S.C. §§ 3161(h)(7)(A) and
(h)(7)(B)(iv).”

       On November 10, 2016, the District Court held a pre-
trial conference, which Reese attended represented by




                              4
D’Andrea. It opened with the following colloquy concerning
the date of Reese’s trial:
       THE COURT:           So I’m setting the trial - - and I
                            apologize for this, because I can’t
                            try the case until February,
                            February 22nd.

       MR. D’ANDREA: February 22nd will work for me.
                     I’m just really bad in December
                     and January myself. February
                     opens up.

The District Judge and the attorneys then discussed other pre-
trial matters and the Court’s trial practices. There was no
further discussion of postponing Reese’s trial or the need to
exclude time under the Speedy Trial Act.

        Following the conference, the District Court entered an
order rescheduling Reese’s trial for February 22, 2017. It
stated that Reese’s trial was rescheduled “per the final pretrial
conference held November 10, 2016,” without any further
explanation for the basis of the rescheduling. It did not
mention the exclusion of time under the Speedy Trial Act or
use any language that would suggest a finding by the Court
that an exclusion was proper. No pre-trial motions were
pending or filed between November 10, 2016 and February 9,
2017.

       On February 10, 2017, twelve days before trial, Reese
filed pro se a motion requesting a hearing for the purpose of
dismissing his retained counsel and obtaining the appointment
of substitute counsel. According to Reese, he was entitled to
have new counsel appointed on the eve of trial because there
was a complete breakdown in communication and an
irreconcilable conflict with his retained attorney, D’Andrea.




                               5
On February 15, 2017, the Court held a hearing on Reese’s
motion for appointment of counsel and denied the motion
from the bench.1

       Just before trial began, Reese, through D’Andrea, filed
a motion for dismissal of the charges based on a violation of
the 70–day time limit under the Speedy Trial Act. The Court
denied the motion from the bench, stating as follows:

             I am going to deny the motion. The
             defendant sat on his rights, he didn’t do
             anything . . . . And he made no
             indications that he disagreed with the
             continuances. And throughout these
             proceedings he had counsel. We have a
             case defendant’s consent is not required
             for a continuance request by his counsel
             for the ends of justice, and that’s . . .
             [United States v. Herbst, 666 F.3d 504
             (8th Cir. 2012)].

             And that would appear under all of the
             circumstances to be applicable in this
             case even though in effect – the bottom
             line is as stated in the defendant’s
             motion, he didn’t request – his counsel
             did not object to the – and he had
             counsel throughout. . . .



1
  Because we resolve Reese’s appeal under the Speedy Trial
Act, we omit the details of his pre-trial motion for the
appointment of counsel. We also express no view on whether
the District Court erred in denying that motion.




                              6
        After a three-day trial, the jury returned a verdict
finding Reese guilty on all twelve counts charged in the
indictment. As noted, the District Judge sentenced Reese to
70 months’ imprisonment, restitution, and three years of
supervised release. He appeals,2 and we have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II.   Discussion

      A. Relevant Law

      The Speedy Trial Act generally requires a federal
criminal trial to begin within 70 days after a defendant is

2
  On appeal, Reese raises four claims of error related to his
sentencing. As a structural error, he contends (i) the District
Court violated his Sixth Amendment right to choose his
sentencing counsel by denying his post-conviction motion for
new counsel. In addition, he claims (ii) ineffective assistance
of sentencing counsel in violation of the Sixth Amendment,
(iii) violation of Federal Rule of Criminal Procedure
32(i)(1)(A), which requires the District Court to “verify that
the defendant and the defendant’s attorney have read and
discussed the presentence report and any addendum to the
report,” and (iv) overbreadth and vagueness of a special
condition of supervised release that would prohibit him from
“obtaining any employment in which he would have control
over money, finances, or engage in financial transactions.”
Each of these additional claims of error has considerable
merit and could very well justify vacating Reese’s sentence
and remanding for resentencing. But because we resolve this
appeal by vacating Reese’s conviction under the Speedy Trial
Act, we omit here the troubling factual grounds underlying
these additional claims.




                              7
charged or appears in the court where the charges are
pending, whichever is later.         18 U.S.C. § 3161(c)(1).3
The Act also contains, however, a series of provisions under
which specified periods of delay are “excluded” from the 70–
day time limit. Zedner v. United States, 547 U.S. 489, 497
(2006) (citing 18 U.S.C. § 3161(h)). Some of the provisions
exclude time automatically, while others must be invoked by
a district court to effect an exclusion of time. See Bloate v.
United States, 559 U.S. 196, 203–15 (2010).

       Among the provisions that must be invoked by the trial
court is 18 U.S.C. § 3161(h)(7)(A), which allows it to exclude
time from the 70–day time limit for “the ends of justice.”
Zedner, 547 U.S. at 508–09 (quoting 18 U.S.C.
§ 3161(h)(8)(A)).4 As the Act and existing case law make
clear, an exclusion of time for “the ends of justice” is not
automatic. Id. To do so, a district court must “set[] 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).


3
  In relevant part, the provision states: “In any case in which
a plea of not guilty is entered, the trial of a defendant charged
in an information or indictment with the commission of an
offense shall commence within seventy days from the filing
date (and making public) of the information or indictment, or
from the date the defendant has appeared before a judicial
officer of the court in which such charge is pending,
whichever date last occurs.”
4
  The “ends of justice” provision examined by the Zedner
Court has been relocated from § 3161(h)(8)(A) to the present-
day codification in § 3161(h)(7)(A).




                               8
        The Supreme Court has not elaborated on the timing,
procedures, or substantive standards that must be satisfied for
a district court to exclude time for the ends of justice, other
than to observe that “at the very least the Act implies that [the
required] findings [of fact] must be put on the record by the
time [it] rules on a defendant’s motion to dismiss under [the
Act].” Zedner, 547 U.S. at 507. In three prior decisions, we
have filled these gaps by setting requirements that a district
court must satisfy to effect an ends-of-justice continuance for
a specified period of delay.5

        In United States v. Brooks, we held that a district
court’s continuance order issued on a template continuance
form was sufficient to exclude time under the Act where the
district court checked a box on the form corresponding to
language tracking the applicable exclusion under the Speedy
Trial Act and later supplemented the record with further
details of the factual basis for exclusion. 697 F.2d 517, 521–
22 (3d Cir. 1982) (“In the present case, the form, when read
together with the later statement made by the district court
explaining in greater detail its reasons for granting the
continuance, satisfies the requirements of the Act.”). In
United States v. Rivera Construction Co., we held that a
district court’s continuance order may exclude time for the
“ends of justice” without citing the Act or parroting the
relevant provisions of the Act so long as the record shows that
the district court “balanced the interests of the public and of
all the defendants . . . when it ordered the continuance.” 863
F.2d 293, 297 (3d Cir. 1988).


5
  We have also established standards for “open-ended”
continuances in the ends of justice, see, e.g., United States v.
Lattany, 982 F.2d 866, 877 (3d Cir. 1992), but we are not
dealing with an open-ended continuance here.




                               9
        Together, the procedural requirements in Brooks and
Rivera give considerable leeway to district courts in granting
continuances for the ends of justice. For example, under
Brooks a district court may give the factual basis for an ends-
of-justice continuance after it is entered (but before ruling on
a motion to dismiss the indictment) if the continuance order
cites the relevant provision of the Act, 18 U.S.C.
§ 3161(h)(7)(A), or states that it is for the “ends of justice.”
See 697 F.2d at 521–22. Under Rivera, a district court may
exclude time for the “ends of justice” without citing the Act
or using any of its magic words so long as the court explains a
valid factual basis for the continuance on the record when the
continuance is ordered. See 863 F.2d at 297.

       But this procedural leeway is not without limits, as we
made clear one year after Rivera in our third guiding case—
United States v. Brenna, 878 F.2d 117, 122 (3d Cir. 1989)
(per curiam). If a district court enters a continuance order
without either stating the factual basis for excluding time
under the Act or using language that invokes it, the delay
caused by the continuance is not excluded and the court
cannot exclude the time in hindsight. Id. (“We reaffirm . . .
that an ends of justice continuance . . . cannot be entered nunc
pro tunc . . . .”).

       B. Analysis

       As noted, the District Court entered sua sponte
continuance orders on October 12, 2016, and November 10,
2016. Reese contends that neither excluded time under the
Act. But we need not address the challenge to the October
12, 2016 order because we rule in favor of Reese under the
Act based on the delay caused by the second sua sponte
continuance. That order did not validly exclude time under
the Act. The contemporaneous record consists of the
transcript of the pre-trial hearing on November 10 and the




                              10
written continuance order itself. Neither invokes the Act nor
uses any language that would suggest an exclusion of time
under it, as would be required to allow exclusion under
Brooks through a later supplementing of the record.
Likewise, neither contains any factual findings that
demonstrate a “balanc[ing] [of] the interests of the public and
of all the defendants,” as would be required to exclude time
under Rivera. Accordingly, under Brenna the Court failed to
exclude time under the Act and the period of delay
occasioned by the order—a period of at least 71 days6—
counted under the Act.

       There is no dispute that, when the District Court
entered the November 10, 2016 order, a period of 50 days had
already expired on the Speedy Trial clock. Given the
additional 70-plus unexcluded days caused by the November
order, the 70–day time limit to bring Reese to trial expired
long before the first day of his trial. (Indeed, the unexcluded
period of delay caused by the order was itself longer than
what is allowed under the Act.)


6
  In his opening brief Reese argued that the continuance order
caused a delay of 71 unexcluded days. During oral argument
his counsel acknowledged that the period of delay caused by
the continuance was actually 79 calendar days and suggested
that his prior calculation of 71 days may have been an
understatement. The Government did not dispute either of
these calculations, and we need not resolve the minor
inconsistency because both 71 and 79 are greater than the 70
days allotted under the Act, especially when added to the 50
days that had expired before the District Court entered its
November 2016 order (a number the Government also does
not contest).




                              11
        The Government makes three principal arguments
against vacating Reese’s conviction under the Act, no one of
which succeeds. First, it contends the continuance was
entered “in consultation with” Reese’s counsel during the
November 10 pre-trial conference. We reject this attempt to
rewrite the record, which makes clear that the District Court
began the conference by stating: “So I’m setting the trial - -
and I apologize for this, because I can’t try the case until
February, February 22nd.” Although D’Andrea’s statement
in response to the District Court’s postponement of trial
suggests he may have been unavailable for trial before
February (which may in turn have been a basis for the Court
to exclude time under the Act), the Court made no finding
that it was stopping the clock based on counsel’s availability.
Rather, the record shows the Court had already made the
decision to postpone trial due to the Court’s own schedule.

       Second, the Government asserts that Reese cannot now
complain because he “was present” at the conference and
“raised no objection to the rescheduled date.” It emphasizes
that D’Andrea not only did not object to the continuance, but
if anything voiced his acquiescence to it. However, this
argument runs headlong into Zedner, in which the Supreme
Court squarely rejected the prospective exclusion of time
“on the grounds of mere consent or waiver.” Zedner, 547
U.S. at 500–01.7


7
  In denying Reese’s motion to dismiss, the District Court
cited United States v. Herbst, 666 F.3d 504 (8th Cir. 2012),
and emphasized that “[t]he defendant sat on his rights, . . .
made no indications that he disagreed with the
continuances[,] . . . [a]nd throughout these proceedings he had
counsel.” We read Herbst to hold that an ends-of-justice
continuance granted on the defendant’s motion will exclude




                              12
        Third, the Government argues that Reese’s Speedy
Trial Act challenge fails because he did not establish
prejudice. But those arguments, which rely on case law
addressing the Sixth Amendment right to a speedy trial, do
not apply in the Speedy Trial Act context. As Justice Alito
explained for a unanimous Supreme Court in Zedner, “[t]he
relevant provisions of the Act are unequivocal . . . . When a
trial is not commenced within the prescribed period of time,
‘the information or indictment shall be dismissed on motion
of the defendant.’” 547 U.S. at 508 (emphasis in original).
The remedy provision of the Act leaves no room for a
prejudice or harmless error analysis. Id. at 508–09.

III.   Conclusion

       Our decisions give district courts considerable leeway
in making the findings required to exclude time from the 70–
day time limit under the Speedy Trial Act. But there are still
limits. When a district court enters a continuance order
without either stating the factual basis for excluding time
under the Act or using language that invokes it (the latter of
which allows a later factual explanation), the delay caused by
the continuance is not excluded and the district court cannot
exclude the time in hindsight. That a defendant does not
object to the continuance or even expresses acquiescence to
the continuance does not change this analysis.



time even if the defendant disagreed with his attorney’s
decision to file the motion, but that holding does not and
cannot overrule the principle reaffirmed by the Supreme
Court in Zedner that a defendant’s mere consent or failure to
object to a continuance is sufficient to exclude time under the
Act.




                              13
       In this case, as a result of the District Court’s
November 2016 sua sponte continuance, the 70–day clock
expired long before Reese was brought to trial. When he
moved to dismiss the indictment under the Act, the Court
should have dismissed the indictment. The remedy for this
error is to reverse the District Court’s decision, vacate
Reese’s conviction, and remand for dismissal of the
indictment. That Court needs to decide in the first instance
whether the dismissal is with or without prejudice per the
factors in 18 U.S.C. § 3162(a)(2).




                            14
        United States of America v. Kevin Reese
                      No. 17-2484
_________________________________________________

AMBRO and GREENAWAY, Circuit Judges, concurring


        We write separately to address a trend among our
sister Circuits that appears to be expanding the doctrine of
waiver by defendants under the Speedy Trial Act. To be
clear, the Government has foregone any assertion that Reese
waived his Speedy Trial Act challenge in this case by not
raising the issue in its appellate brief or in oral argument. See
United States v. Allegheny Ludlum Corp., 366 F.3d 164, 174
n.2 (3d Cir. 2004). We nonetheless mention the trend and
consider whether the doctrine of waiver would preclude
Reese’s challenge in this appeal were that issue before us.
We conclude it would not.
       As background, we note the well-settled rule that a
defendant generally may not elect to waive the protections of
the Speedy Trial Act, other than by failing to move to dismiss
the indictment under 18 U.S.C. § 3162(a)(2). See United
States v. Carrasquillo, 667 F.2d 382, 388–89 (3d Cir. 1981);
accord United States v. Gambino, 59 F.3d 353, 360 (2d Cir.
1995) (“[W]hen Congress considered” the issue, “it limited
waiver of the 70–day speedy trial requirement to narrowly
defined circumstances, i.e., a failure to move for dismissal
prior to trial or prior to the entry of a guilty or nolo
contendere plea.”) (collecting cases). This principle was
sustained in Zedner, in which the Court held that a defendant
may not prospectively waive the protections of the Act. 547
U.S. at 501. This is so, the Court explained, because “the Act
was designed with the public interest firmly in mind,” and




                               15
“[t]hat public interest cannot be served . . . if defendants may
opt out of the Act entirely.” Id.
       In recent years, however, Courts of Appeals have
come to recognize a new kind of waiver under the Act. The
Seventh Circuit was the first expressly to break this ground in
United States v. O’Connor, in which the Court considered
whether a defendant waived the ability to challenge on appeal
several ends-of-justice continuances she had not challenged
specifically in her pre-trial motion to dismiss the indictment.
656 F.3d 630, 637 (7th Cir. 2011). O’Connor construed the
Supreme Court’s comment in Zedner that the Act “assigns the
role of spotting violations of the Act to defendants,” 547 U.S.
at 502, to mean that “any specific violation not raised in a
motion to dismiss is waived.” 656 F.3d at 638.

        Since the Seventh Circuit’s decision in O’Connor, four
other Circuits have reached essentially the same conclusion.
As most recently formulated by the Second Circuit, these
courts have held that filing a timely motion to dismiss on
Speedy Trial Act grounds is not enough if a defendant “fail[s]
to challenge a particular period of delay.” United States v.
Holley, 813 F.3d 117, 121 (2d Cir. 2016) (per curiam); see
also United States v. Taplet, 776 F.3d 875, 881 (D.C. Cir.
2015); United States v. Loughrin, 710 F.3d 1111, 1121 (10th
Cir. 2013); United States v. Gates, 709 F.3d 58, 67 (1st Cir.
2013). Thus, those Circuits have held, “[w]hen a defendant
fails to specify the particular exclusions of time within his or
her motion to dismiss, [he] has failed to move for dismissal
on that ground” and has waived the right to dismissal because
of it. Holley, 813 F.3d at 121.
       These Circuits have buttressed their holdings with
several prudential considerations. First, if a defendant is not
deemed to waive arguments unmade in the motion to dismiss,
“[it] would force the court on a motion to dismiss [on Speedy




                              16
Trial Act grounds] to consider every conceivable basis for
challenging its orders of continuance and exclusions of time,
for fear that the defendant would raise new arguments on
appeal.” Loughrin, 710 F.3d at 1121; accord, e.g., O’Connor,
656 F.3d at 638 (“If [the mere] filing a motion to dismiss
were enough to preserve all violations of the Act—whether
identified in the motion or not—then the district court or the
government, rather than the defendant, would effectively bear
the burden of ‘spotting violations,’ contrary to the Court’s
instruction in Zedner.”). Second, forcing a defendant to
identify specific periods of delay “ensures that the district
court has the opportunity to develop all arguments below and
fully explain its reasoning for excluding a particular period of
delay.”     Holley, 813 F.3d at 121.         Third, “requiring
defendants to notify district courts of any potential exclusions
of time within their motions to dismiss . . . prevents undue
defense gamesmanship.” Taplet, 776 F.3d at 880 (quotation
marks omitted). In the absence of this broadened waiver
doctrine, the rationale goes, defendants may “withhold
meritorious non-excludable time in their motions to dismiss
on the chance that, if their trials go badly,” an appellate
court’s reversal under the Act will provide “a one-time reset
button” and give them “a second bite of the apple.” Id. at
881.

       We observe that a different approach to construing the
waiver provision in the Act is more easily reconciled with the
language of the Act and the Zedner decision. A defendant
who moves to dismiss an indictment under the Act has “the
burden of proof of supporting such motion.” 18 U.S.C.
§ 3162(a)(2). Thus, to the extent a defendant’s motion is
premised on a challenge to the district court’s exclusion of a
specific period of time under the Act, he bears the burden to
prove the exclusion was invalid. We thus would reach the
same result as our sister Circuits in that scenario.




                              17
        But to the extent a defendant’s motion is premised
more generally on the clear expiration of more than 70
unexcluded days under the Act, the defendant can meet his
burden of proof under 18 U.S.C. § 3162(a)(2) by notifying the
district court of its expiration through a basic motion to
dismiss under the Act. In that latter scenario, a district court
is obliged under Zedner at least to “tally the unexcluded
days” and, if they exceed the 70 days allowed under the Act,
dismiss the indictment per the Act. 547 U.S. at 507.

       In most cases the distinction we propose will make no
difference. Generally a defendant seeking dismissal on
Speedy Trial Act grounds will need to challenge a district
court’s exclusion of time to succeed on his motion. This
means that a defendant typically must “challenge a particular
period of delay,” as other Circuits have held. Holley, 813
F.3d at 121. But in some cases a basic motion to dismiss will
suffice to establish the point that dismissal is warranted. For
example, if a defendant were indicted and arraigned but the
court never set a date for trial, it would make no sense to
require the defendant to challenge a specific continuance
order or a specific period of delay other than to move to
dismiss in a timely way. Similarly in this case (when Reese
filed his motion at the end of the over 70–day unexcluded
delay caused by the District Court’s sua sponte continuance),
Reese’s motion was enough to demonstrate to the Court that
more than 70 unexcluded days had expired.
       In short, we believe Reese’s Speedy Trial Act
challenge would have survived a waiver argument had the
Government made one.




                              18
