                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 21 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50306

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00918-BEN-3

  v.
                                                 MEMORANDUM*
JEFFREY SPANIER,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted October 22, 2015
                               Pasadena, California

Before: RAWLINSON and NGUYEN, Circuit Judges and PONSOR,** Senior
District Judge.

       Appellant Jeffrey Spanier (Spanier) challenges the district court’s denial of

his motion to dismiss. Spanier contends that the district court violated the Speedy

Trial Act.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
      In criminal cases where a mistrial has been declared, the Speedy Trial Act

contemplates that “the [new] trial shall commence within seventy days from the

date that the action occasioning the retrial becomes final. . . .” 18 U.S.C.

§ 3161(e). It is undisputed that the speedy trial clock began running on May 31,

2013, when the district court declared a mistrial. See United States v. Pitner, 307

F.3d 1178, 1182 n.3 (9th Cir. 2002). There is also no dispute that the district court

set Spanier’s retrial date for more than 70 days after the mistrial. The question

before this Court is whether the district court erroneously set the retrial date

outside the 70-day period, or instead properly granted several “ends of justice”

continuances due to the “complexity” of the case, thereby tolling the speedy trial

clock. 18 U.S.C. § 3161(h)(7). A review of the contemporaneous record reveals

that, at the time continuances were granted, the district court did not make the

requisite “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.” 18 U.S.C. §

3161(h)(7)(A).

      The Speedy Trial Act is not crystal clear on when a district court must place

its findings on the record. We have held that it is permissible for a court to grant

ends of justice continuances for case complexity and subsequently set forth

sufficient facts to support its finding. See United States v. Bryant, 726 F.2d 510,


                                      Page 2 of 5
511 (9th Cir. 1984). However, it is impermissible for a district court to set a trial

date outside the prescribed speedy trial period and subsequently perform the

requisite balancing test for the first time. See United States v. Frey, 735 F.2d 350,

351-53 (9th Cir. 1984). A “district court err[s] by making nunc pro tunc findings

to accommodate its unwitting violation of the Act[,]” and dismissal of an

indictment is required. See id. at 353. The district court in this case initially relied

on the government to set a retrial date in September, a date outside the 70-day

period. There was no discussion at that time or at any of the subsequent

proceedings about an ends of justice continuance.

      The district court’s explanation in denying Spanier’s motion to dismiss, that

the continuances were granted due to case complexity was, unfortunately,

insufficient. See United States v. Jordan, 915 F.2d 563 (9th Cir. 1990) (rejecting

reliance on earlier ends of justice order). “[E]nds of justice” continuances must

“be specifically limited in time and [contain] findings supported by the record to

justify each ‘ends of justice’ continuance.” Id. at 565.

      Similarly, the court’s proffered justification that the continuances were

granted due to counsel’s need for time to prepare is belied by the record. While the

need for extra time to prepare is an appropriate factor to consider, the court was

required to:


                                      Page 3 of 5
             conduct an appropriate inquiry to determine whether the
             . . . parties actually want and need a continuance, how
             long a delay is actually required, what adjustments can be
             made with respect to the trial calendars or other plans of
             counsel, and whether granting the requested continuance
             would outweigh the best interest of the public and the
             defendant in a speedy trial.

United States v. Lloyd, 125 F.3d 1263, 1269 (9th Cir. 1997) (citation, alteration,

and internal quotation marks omitted). The district court did not conduct an

inquiry as Lloyd requires. Rather, the court acknowledged that it “assumed”

Spanier’s counsel needed time to prepare because he did not object to the delays.

Regrettably, the district court’s practice in this case of retroactively characterizing

a continuance to justify a violation of the Speedy Trial Act was “inconsistent with

the language and policy of the Act.” Frey, 735 F.2d at 352.

      Speedy Trial Act violations require dismissal of a defendant’s indictment.

See 18 U.S.C. § 3162(a)(2). It is our normal practice to remand and allow the

presiding judge to determine whether the operative indictment should be dismissed

with prejudice. See Lloyd, 125 F.3d at 1271. However, reassignment in this case

is necessary to “maintain the appearance of justice.” Nat’l Council of La Raza v.

Cegavske, 800 F.3d 1032, 1045 (9th Cir. 2015). Given the district court’s stated

views on this circuit’s Speedy Trial Act precedent, “the appearance of fairness

warrants the exercise of independent judgment with respect to the selection of the


                                      Page 4 of 5
remedy. . . .” Lloyd, 125 F.3d at 1271. We therefore remand for the assignment of

a different judge solely to make the dismissal determination. Any further

proceedings may be handled by the district court judge who presided over the first

two trials. See id.

      Although we grant relief on Spanier’s Speedy Trial Act challenge, we reject

his challenge to the district court’s jury instructions. The district court acted well

within its discretion in using the model jury instructions, and Spanier has cited no

persuasive authority holding otherwise. See United States v. Stapleton, 293 F.3d

1111, 1119 (9th Cir. 2002) (affirming mail and wire fraud conviction where

instructions “substantially mirror[ed]” the Ninth Circuit Manual of Model Jury

Instructions).

    AFFIRMED IN PART; INDICTMENT DISMISSED, and CASE
REMANDED WITH INSTRUCTIONS TO REASSIGN FOR LIMITED
PURPOSE OF DETERMINING WHETHER DISMISSAL IS WITH OR
WITHOUT PREJUDICE.




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