             United States Court of Appeals
                        For the First Circuit

No. 10-1413

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

   JUAN HUETE-SANDOVAL, a/k/a Oswaldo Rosario, a/k/a Armando
González, a/k/a Armando González-Santoni, a/k/a Osvaldo Rosario,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

            [Hon. Daniel R. Domínguez, U.S. District Judge]


                                Before

                     Torruella, Siler,* and Howard
                            Circuit Judges.



     Vivianne M. Marrero-Torres, Assistant Federal Public Defender,
with whom Héctor E. Guzmán, Jr., Federal Public Defender, was on
brief for appellant.
     Evelyn Canals-Lozada, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division and Luke Cass, Assistant United States Attorney, United
States Attorney's Office were on brief, for appellee.




     *
         Of the Sixth Circuit, sitting by designation.
December 29, 2011
             HOWARD, Circuit Judge.            On September 22, 2009, a jury

convicted defendant-appellant Juan Huete-Sandoval ("Huete") of

various crimes related to his alleged fraudulent acquisition and

use of a United States passport.               On appeal, Huete argues, inter

alia, that the district court erred in denying his motion to

dismiss for an alleged violation of the Speedy Trial Act ("STA").

We agree with his position.          For the reasons elucidated below, we

reverse the district court's order and remand with instructions to

determine whether the indictment should be dismissed with or

without prejudice.1

                                  I. Background

             On May 13, 2009, Huete was charged in a three-count

indictment with making false statements in a passport application,

falsely representing that he was a United States citizen, and

aggravated identity theft.         See 18 U.S.C. §§ 1542, 911, 1028A.            At

his   arraignment    on    May    18,    Huete    pled    not   guilty,   and   the

magistrate judge granted, sua sponte, five days for discovery and

ten   days   thereafter     for    additional      motions.         Neither   party

objected,    and    no    pretrial      motions    were    filed.      Trial    was

subsequently set for August 11, 2009.



      1
      Huete additionally raised a Confrontation Clause challenge,
asserting that an admitted exhibit should have been excluded on the
grounds that it was testimonial in nature. Because we agree with
Huete's argument that his right to a speedy trial was violated,
thus warranting dismissal, we need not address the issue of
confrontation on this appeal.

                                         -3-
          On July 16, during a pretrial conference, the parties

informed the court that a plea offer had been extended to Huete.

Discussions proved unfruitful, however, and at a July 22 status

conference, defense counsel indicated his intent to request a

continuance to facilitate further plea negotiations.       The court

noted the following in the status conference minutes:

          Parties were not able to reach a plea
          agreement in this case.      Counsel for the
          defendant informed that will [sic] be filing a
          motion requesting continuance of the jury
          trial set for August 11, 2009 in order to
          attempt to reach a plea agreement with the
          United States. The Court informed that in the
          event more time for plea negotiation is
          requested, maybe [sic] granted pursuant to 18
          U.S.C. § 3161(h)(7)(A), that the Speedy Trial
          shall be tolled "in the best interest of
          justice" and "such action outweighs the best
          interest of the public and the defendant in a
          speedy trial" in order for the parties to
          reach an agreement in this case.

Minutes of July 22, 2009 Pretrial Conference at 1, United States v.

Huete-Sandoval, Cr. No. 09-170 (D.P.R. July 22, 2009) (emphasis

added).   Huete never requested a continuance, and no further plea

negotiations occurred. Instead, on August 7, just four days before

the trial was scheduled to begin, Huete filed a motion to dismiss

the indictment, alleging that his statutory right to a speedy trial

had been violated.   See 18 U.S.C. § 3161(c)(1) (requiring criminal




                                -4-
trials to begin within seventy days of the later of the defendant's

initial appearance or the filing of the charging instrument).2

               The court denied Huete's motion, finding that the fifteen

days granted for discovery and preparation of pretrial motions were

excludable under the STA, and that his trial would therefore begin

well       within   the   prescribed       seventy-day    period.          See   id.

§§ 3161(c)(1), 3161(h)(1).           Huete was ultimately convicted by a

jury on all three counts and sentenced to twenty-nine months'

imprisonment.         This timely appeal ensued.

                                   II. Analysis

               We review "the district court's denial of a motion to

dismiss based upon the Speedy Trial Act de novo as to legal rulings

and for clear error as to factual findings."                     United States v.

Maxwell, 351 F.3d 35, 37 (1st Cir. 2003).             We also review de novo

the calculation of days included and excluded for purposes of the

STA.       United States v. Barnes, 159 F.3d 4, 10-11 (1st Cir. 1998).

               The Speedy Trial Act requires that a criminal defendant's

trial      commence    within    seventy    days   from    the    filing    of   the

information or indictment, or from the date of the defendant's

initial       appearance,       whichever    occurs      later.       18     U.S.C.

§ 3161(c)(1).       If the defendant is not brought to trial within such


       2
       Huete did not assert that his right to a speedy trial under
the Sixth Amendment had been violated, nor does he on appeal. He
limits the scope of his argument to the statutory prescriptions of
the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and we limit our
analysis accordingly.

                                       -5-
time, "the information or indictment shall be dismissed on motion

of   the   defendant,"   either   with   or   without   prejudice.   Id.

§ 3162(a)(2).    Certain delays, however, are recognized by the Act

as justifiable, and are therefore excludable from the seventy-day

clock.     Id. § 3161(h).     Two such exclusions are of particular

relevance to this appeal.

            The first, invoked by the district court in denying

Huete's motion to dismiss, requires the automatic exclusion of

"[a]ny period of delay resulting from other proceedings concerning

the defendant, including but not limited to" eight enumerated

subcategories of proceedings.       Id. § 3161(h)(1).      Specifically,

subsection (h)(1)(D) compels the automatic exclusion of "[a]ny

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."        Id. § 3161(h)(1)(D).

            The second relevant exclusion, commonly referred to as

the "ends-of-justice" provision, permits the court to exclude

delays resulting from continuances granted "on the basis of [the

judge's] 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."      Id. § 3161(h)(7)(A).    This exclusion, unlike

§ 3161(h)(1), is not automatic; rather, the court is required to

"set[] forth, in the record of the case, either orally or in

writing, its reasons" for granting an ends-of-justice continuance.


                                   -6-
Id.    Such findings must, at the very least, be entered into the

record by the time a district court rules on a defendant's motion

to dismiss under § 3162(a)(2).           Zedner v. United States, 547 U.S.

489, 507 (2006).

              Here,    Huete's   seventy-day      speedy   trial    clock   was

triggered by his May 18 arraignment and stopped when he filed his

motion to dismiss on August 7.        See 18 U.S.C. § 3161(c)(1); United

States v. Hood, 469 F.3d 7, 9 (1st Cir. 2006) ("The speedy trial

clock . . . stops the day the defendant files a motion to dismiss

for lack of a speedy trial.").           Excluding the July 16 and July 22

pretrial conferences, we thus calculate that a total of seventy-

nine days elapsed between Huete's arraignment and his motion to

dismiss.      See United States v. Santiago-Becerril, 130 F.3d 11, 16

(1st   Cir.    1997)    (finding   the    day   of   a   pretrial   conference

excludable pursuant to 18 U.S.C. § 3161(h)(1)).               Huete's appeal

hinges, therefore, on whether there were at least nine additional

days of excludable delay under the STA.           The government identifies

two distinct time frames, either of which, if excluded, would bring

Huete's trial date within the permissible bounds of the Speedy

Trial Act's seventy-day window. We consider each of these in turn.

              A. Time granted for discovery and pretrial motions

              The first potential period of excludability is comprised

of the fifteen days granted by the magistrate judge for discovery

and preparation of pretrial motions.            In its order denying Huete's


                                     -7-
motion to dismiss, the district court deemed this delay excludable

from the speedy trial calculus, and strongly implied its dependence

on § 3161(h)(1) in doing so.3              This finding was not inconsistent

with First Circuit precedent then in effect.                  In United States v.

Jodoin, 672 F.2d 232 (1st Cir. 1982), upon which the district court

relied in    part,       we    suggested    that     delays emanating      from the

preparation of pretrial motions might fall within the ambit of

§ 3161(h)(1).      See id. at 237-39.            The Supreme Court, however, in

a decision post-dating the district court's order, held otherwise.

            In Bloate v. United States, 130 S.Ct. 1345 (2010), the

Court explicitly abrogated Jodoin, along with decisions of seven

other     Courts    of        Appeals,     and     interpreted    the     scope      of

§   3161(h)(1)(D)    more          narrowly.       Relying   principally       on   the

statutory    language         --   which   permits    the    exclusion    of   "delay

resulting from any pretrial motion, from the filing of the motion

through the . . . disposition of[] such motion" -- the Court held

that delays resulting from mere preparation of pretrial motions are

not automatically excludable under § 3161(h)(1)(D).                      See Bloate,




      3
       The district court's brief order rested predominantly on
language from United States v. Garrett, 45 F.3d 1135 (7th Cir.
1995), and United States v. Castillo-Pacheco, 53 F. Supp. 2d 55 (D.
Mass. 1999), both of which held that delay due to the preparation
of pretrial motions is excludable pursuant to § 3161(h)(1).
Specifically, the order quoted Castillo-Pacheco for the proposition
that "[t]he majority of circuits has agreed that delay attributable
to the preparation of pretrial motions is excludable under
§ 3161(h)(1)." See 53 F. Supp. 2d at 58.

                                           -8-
130 S.Ct. at 1353 (emphasis added).4   Rather, the Court found that

such delays may only be excluded pursuant to the ends-of-justice

provision, provided that the trial court makes the appropriate

case-specific findings that the benefits outweigh the costs, as

required by § 3161(h)(7).   Id. at 1353-54.5

          Here, neither the magistrate judge in granting the time,

nor the trial judge in denying Huete's motion to dismiss, made the

requisite ends-of-justice finding.     The government contests this

point, asserting that the trial judge couched his order in the

language of § 3161(h)(7). This argument, however, is not supported

by the record. To the extent that the order referenced the text of

subsection (h)(7), it was purely for the purpose of delineating the

STA's general exclusionary framework, and omitted the necessary

case-specific   cost-benefit    analysis.        See   18    U.S.C.




     4
       The precise issue in Bloate was whether there should have
been an automatic exclusion for the period commencing with the
defendant's request to extend the deadline previously set for
filing pretrial motions. The Court's holding, however, applies to
pretrial motion preparation time in gross.
     5
       The government contends that time granted for preparation of
pretrial motions, while perhaps not automatically excludable
pursuant to § 3161(h)(1)(D), may nevertheless be automatically
excluded as "other proceedings" under the non-limiting language of
§ 3161(h)(1). This argument was directly foreclosed by the Court
in Bloate. See Bloate, 130 S.Ct. at 1352 ("The Government contends
that the time the District Court granted petitioner to prepare his
pretrial motions is automatically excludable under subsection
(h)(1). We disagree, and conclude that such time may be excluded
only when a district court enters appropriate findings under
subsection (h)(7)." (emphasis added)).

                                -9-
§ 3161(h)(7)(A). The order cannot reasonably be read as basing the

exclusion upon the ends-of-justice provision.

            In any event, whether or not the district court's order

drew support from § 3161(h)(7) is of no moment, as the ends-of-

justice finding must be recorded "by the time [the] district court

rules" on the motion to dismiss.     See Zedner, 547 U.S. at 506-07;

see also id. at 506 ("[T]he Act is clear that the [ends-of-justice]

findings must be made, if only in the judge's mind, before granting

the [delay for discovery and preparation of pretrial motions]."

(emphasis added)).    No such timely finding was made.

            Thus, in light of Bloate, and given the absence of any

recorded ends-of-justice finding, the district court's exclusion of

ten days for preparation of pretrial motions constituted reversible

error.6    See, e.g., United States v. O'Connor, 656 F.3d 630, 638

(7th Cir. 2011) (applying Bloate retroactively, and holding that

the district court erred in automatically excluding time for

preparation    of   pretrial   motions   pursuant   to   18   U.S.C.   §

3161(h)(1)(D), where no ends-of-justice finding was made); United

States v. Oberoi, 379 F. App'x 87 (2d Cir. 2010) (summary order)

(same).7


     6
      We are not required to address the five days attributable to
discovery, but we have significant doubt that such time was
automatically excludable.
     7
       Not only did Huete preserve the STA issue, but also because
his appeal is on direct review, Bloate applies retroactively. See
Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("[A] new rule for

                                 -10-
          B. July 22 to August 7, 2009

          The second potential period of excludability, asserted by

the government as an alternative basis for affirmance, encompasses

the sixteen days between the July 22 pretrial conference and the

filing of Huete's motion to dismiss on August 7.    Relying on our

holding in United States v. Scantleberry-Frank, 158 F.3d 612 (1st

Cir. 1998), the government contends, in essence, that by indicating

his intent to request a continuance but never doing so, Huete

effectively sandbagged the proceedings, lulling the court and the

prosecution into a false sense of security only to turn around and

employ the trial schedule as grounds for dismissal.        While we

caution against such conduct in the abstract, the facts presented

here do not support the government's argument.

          In Scantleberry-Frank, the trial was pushed beyond the

STA's seventy-day window at the direct request of defense counsel,

who indicated her unavailability for the originally scheduled date.

158 F.3d at 613.   Subsequently, on the eve of trial, the defendant

filed a motion to dismiss the indictment on STA grounds.   Id.   The

district court denied the motion, and we affirmed the denial on

appeal, holding in relevant part:

          Because the continuance was granted to aid
          defense counsel . . . the period [continued at


the conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule
constitutes a 'clear break' with the past.").

                                -11-
               her request] is excludable. [. . .] To hold
               otherwise would be to subvert the purpose of
               the STA, and allow defense counsel to
               "sandbag" the district court.        [. . .]
               Defense counsel cannot have it both ways.
               Either she must agree that the continuance
               granted for her benefit be excluded from STA
               consideration, or she must object to the
               continuance.   To permit defense counsel to
               have both the continuance and the time
               included in the STA calculus is impermissible.

Id. at 615-16; see also United States v. Pringle, 751 F.2d 419, 434

(1st    Cir.     1984)   (affirming     the     district    court's      denial    of

defendant's motion to dismiss on STA grounds, and holding that the

defendant cannot "lull[] the court and prosecution into a false

sense of security only to turn around later and use the [speedy

trial waiver]-induced leisurely pace of the case as grounds for

dismissal"); United States v. Pakala, 568 F.3d 47, 60 (1st Cir.

2009)    ("[Defendant]        would    obtain    an   'unfair     advantage'       by

benefitting from his continuances and then later claiming that he

was somehow prejudiced by the district court's actions.").

               There is nothing in the record here to suggest that Huete

similarly seduced anyone.             To be sure, Huete indicated a vague

future intent to seek a continuance; yet the court, as evidenced by

the conditional language of its ends-of-justice notation, fully

recognized the prospective nature of Huete's request.                 See July 22

Pretrial   Minutes,      at   1   ("[I]n   the    event    more   time    for     plea

negotiation is requested, maybe [sic] granted pursuant to 18 U.S.C.

§ 3161(h)(7)(A), that the Speedy Trial shall be tolled 'in the best


                                        -12-
interest of justice'. . . ." (emphasis added)).             The court was

neither lulled to sleep nor hoodwinked by Huete's actions --

indeed, in stark contrast to the critical facts in Scantleberry-

Frank, a continuance here was never granted (or even requested),

and the trial date was never actually changed.           Huete's purported

"improper gamesmanship" simply had no dilatory consequence, and we

therefore find the sandbagging argument unpersuasive.

           If Huete is guilty of anything during this time frame, it

is that he failed to object to the trial date prior to filing his

August 7 motion to dismiss. The record, however, discloses nothing

about when counsel discovered the STA issue.         In this case, the

failure to object sooner "does not constitute working both sides of

the street," and is not fatal to the defendant's claim.                 See

Barnes, 159 F.3d at 15 (internal quotation marks omitted).             Under

the circumstances presented here, the defendant should not be

charged   with   ensuring   the   court's   compliance    with   the   Act's

requirements.    See id.; United States v. Bivens, 82 F.3d 419, 1996

WL 166747, at *2 (6th Cir. 1996) (unpublished table decision)

("Although the delay was certainly not intentional on the part of

the court or either of the parties, it is not the defendant's

burden to remind the court to comply with the Speedy Trial Act.");

United States v. Breen, 243 F.3d 591, 596 (2d Cir. 2001) ("Nor do

we suggest that [the defendant] 'waived' his speedy trial claims

since he had no obligation to take affirmative steps to [e]nsure


                                   -13-
that [he] would be tried in a timely manner."             (internal quotation

marks omitted)).      Thus, on this record, we conclude that the

sixteen   days   between   July    22   and   August   7,    2009,    were     not

excludable pursuant to the STA and in light of prior circuit

precedent.8

                             III. Conclusion

            Additional claims of error need not be decided.             For the

aforementioned reasons, we reverse the district court's order

denying Huete's motion to dismiss, and remand to determine whether

the indictment should be dismissed with or without prejudice,

taking    into   account   the    factors     specified     in   18   U.S.C.    §

3162(a)(2).9


     8
       We note that other circuits are divided as to whether plea
negotiations are automatically excludable from the Speedy Trial Act
calculation as "other proceedings" pursuant to 18 U.S.C.
§ 3161(h)(1). Compare United States v. Leftenant, 341 F.3d 338,
344-45 (4th Cir. 2003) (holding that plea negotiations trigger
automatic exclusion pursuant to 18 U.S.C. § 3161(h)(1)); United
States v. Van Someren, 118 F.3d 1214, 1218-19 (8th Cir. 1997)
(same); United States v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987)
(same); United States v. Bowers, 834 F.2d 607, 610 (6th Cir. 1987)
(same), with United States v. Alvarez-Perez, 629 F.3d 1053, 1058
(9th Cir. 2010) (holding that plea negotiations do not trigger
automatic exclusion pursuant to 18 U.S.C. § 3161(h)(1)); United
States v. Lucky, 569 F.3d 101, 107 (2d Cir. 2009) (same). We need
not and do not reach that issue here. To the extent the parties
entered plea negotiations between July 16 and July 22, the total
number of days excluded would be insufficient to avoid a violation
of the Speedy Trial Act.
     9
       Such factors include, but are not limited to, the following:
"the seriousness of the offense; the facts and circumstances of the
case which led to the dismissal; and the impact of a reprosecution
on the administration of this chapter and on the administration of
justice." 18 U.S.C. § 3162(a)(2).

                                    -14-
