                      United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                              ____________

                               No. 96-3665
                              ____________


United States of America,         *
                                  *
          Appellee,               *        Appeal from the United States
                                  *        District Court for the Western
v.                                *        District of Arkansas.
                                  *
Timothy N. Van Someren,           *
                                  *
          Appellant.              *

                              ____________

                       Submitted: March 12, 1997

                          Filed: July 3, 1997
                              ____________

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and
NANGLE,* Senior District Judge.
                           ____________

NANGLE, Senior District Judge.


     Appellant Timothy Van Someren appeals the denial of his motion
to dismiss the indictment.      Prior to the trial which resulted in
his conviction on two counts of filing fraudulent income tax
returns in violation of 26 U.S.C. § 7206(1), appellant filed this
motion, contending that the Speedy Trial Act, 18 U.S.C. § 3161-
3174, mandated the dismissal of the indictment.         We affirm.


                                      I.



     *
      The Honorable John F. Nangle, Senior United States District
Judge for the Eastern District of Missouri, sitting by
designation.
     On June 14, 1995, appellant was indicted on three counts of
filing false income tax returns, as prohibited in 26 U.S.C. §
7206(1).    Appellant was arraigned on these charges on July 5, 1995.
The trial began on October 10, 1995.   On October 13, 1995, after an
acquittal on the third count of the indictment, the district court1
declared a mistrial on the first two counts.   On that same day, the
court issued an order instructing the Government to notify the
court by October 30, 1995, if the Government intended to retry
appellant on the first two counts of the indictment.


     On October 17, 1995, the Government sent a letter to appellant
detailing the terms of a proposed plea agreement.       Negotiations
continued on that plea agreement until October 26, 1995, when the
Government sent the district court a letter informing the court of
the ongoing negotiations and requesting an extension of the time
period for the Government to decide whether to try appellant.    The
district court granted that extension, giving the Government until
November 1, 1995, to make their determination.


     On November 1, 1995, under cover letter by defense counsel,
the signed plea agreement was submitted to the district court for
approval.     From November 1, 1995, until March 22, 1996, the
district court considered the plea agreement, taking the requisite
steps, including ordering a presentence report from the United
States Probation Office and requiring responses by both parties to
various concerns the district court had with the plea agreement.
After a hearing on March 22, 1996, the court refused to accept the
plea agreement.




     1
      The Honorable H. Franklin Waters, United States District
Judge for the Western District of Arkansas.

                                   2
        On April 3, 1996, the Government filed a motion to dismiss,
seeking the voluntary dismissal of the remaining two counts of the
indictment.      On April 25, 1996, the Government filed a request to
withdraw the motion to dismiss.         In this document, the Government
indicated that it would be seeking a superseding indictment.             The
district court granted the withdrawal of the motion to dismiss on
April 26, 1996.


     On    May    8,   1996,   the   Government   obtained    a   superseding
indictment charging appellant with two counts of violating 26
U.S.C. § 7206(1), one count each for the tax years 1988 and 1989.
Appellant was arraigned on the charges contained in the superseding
indictment on May 21, 1996.


     On June 6, 1996, the Government filed a motion to amend the
jury instructions.      Appellant responded to this motion on June 11,
1997.     The district court denied the Government’s motion on June
12, 1997.


     Appellant’s second trial commenced on July 8, 1996.              On the
morning of July 8, 1996, appellant filed a motion to dismiss the
indictment for violation of the Speedy Trial Act.            In that motion,
as in his appellate brief, appellant notes that two-hundred sixty
seven (267) days passed between the declaration of mistrial and the
beginning of the second trial.             Appellant argued that at least
ninety-three (93) of those days were not excusable under the Speedy
Trial Act.       The district court rejected appellant’s arguments and
denied the motion on July 8, 1996.
     On July 10, 1996, the jury returned a verdict of guilty on
both counts of the superseding indictment.            On October 3, 1996,
appellant was sentenced to a prison term of eight (8) months, a
supervised release term of one (1) year and a one-hundred dollar


                                       3
($100.00) special assessment.      On October 4, 1996, the judgment and
commitment was entered and on October 8, 1996, appellant timely
filed his notice of appeal.


                                     II.
       The Speedy Trial Act provides, in relevant part:
       (e) If the defendant is to be tried again following a
       declaration by the trial judge of a mistrial or following
       an order of such judge for a new trial, the trial shall
       commence within seventy days from the date the action
       occasioning the retrial becomes final. . . . The periods
       of delay enumerated in section 3161(h) are excluded in
       computing the time limitations specified in this section.

18 U.S.C. § 3161(e).        “If a defendant is not brought to trial
within the time limit required by section [3161(e)] as extended by
[the excluded delays of] section 3161(h), the information or
indictment shall be dismissed on motion of the defendant.”             United
States v. Blankenship, 67 F.3d 673, 675 (8th Cir. 1995) (citing 18
U.S.C. § 3162(a)(2) (emphasis added)).           In the context of the
Speedy Trial Act, we review the district court’s findings of fact
for clear error and the district court’s legal conclusions de novo.
Id.    See also United States v. Duranseau, 26 F.3d 804, 808 (8th
Cir.), cert. denied, 115 S.Ct. 341 (1994).


       In this case, the district court found that there was no
violation of the Speedy Trial Act, finding that each of the time
periods relied upon by appellant was excluded from the speedy trial
calculation by section 3161(h).       Similarly finding no violation of
the    Act,   we   affirm   the   district   court’s   decision   to    deny
appellant’s motion to dismiss.


                                    III.
A.    The Date the “Action Occasioning Retrial Became Final.”



                                      4
        As a threshold matter, we must first determine when the
“action occasioning retrial became final.”                   For, if we find as the
district court did - and the Government now argues - that the
“action occasioning retrial” was the district court’s grant of the
Government’s withdrawal of the motion to dismiss, then our inquiry
ends at this point.                If the speedy trial clock did not begin
“ticking,” as the district court held, until April 26, 1996, then
even if all of appellant’s remaining arguments are correct, there
is no violation of the Act.


      The district court found that the speedy trial clock did not
begin running until April 26, 1996, because “[i]t would have been
foolhardy . . . to set this matter for retrial when the Court was
being       led    to    believe    that    it    probably       wasn’t   going   to   be
necessary.”2            The district court continued by stating that the
action occasioning retrial was “. . . at the very earliest . . .
when [the Government’s] motion to dismiss was withdrawn.                          That’s
when the United States by its action advised the Court that it
intended to retry the case.”3


      This Court, however, has stated that “[b]y its terms, section
3161(e) requires that a defendant be retried within seventy days of
the declaration of a mistrial.”              United States v. Gleason, 766 F.2d
1239, 1244 (8th Cir. 1985).            The clear language of the statute and
the     prior      interpretation      by        this    Court    indicate   that      the
declaration         of    the   mistrial     is    the    “action    occasioning       the
retrial.”         Thus, the Speedy Trial “clock” began running on October
13, 1995.          Accordingly, we now proceed to appellant’s arguments
concerning the district court’s exclusion of certain periods of


        2
         Trial Transcript at 90.
        3
         Id. at 91.

                                             5
time between the declaration of mistrial and the beginning of the
second trial.


B.   October 14, 1995 to October 31, 1995 — Eighteen (18) Days.


     This period represents the time between the declaration of the
mistrial and the submission of the proposed plea agreement to the
district court.     The district court held that this time was
excludable for two reasons: first, that the time given to the
Government to decide whether to retry the defendant was “entirely
appropriate”, and second, that the time was excludable because plea
negotiations were in progress.4       We will deal with each of these
findings in turn.


     1.   Time to Determine Whether Defendant Would Be Retried.
     The court gave the government until October 31, 1995 to
decide whether or not to retry the defendant.         This Court has
recognized that the exclusion provided for by § 3161(h)(1)(F)5
includes time to submit information and/or materials to the
district court in order to properly dispose of an issue.         See
Blankenship, supra, at 676.    Clearly, there are no motions at
issue here, nor does the instant case appear to fit within the
confines of the Blankenship decision.             What we do have,
however, is a specific request by the court for the Government
to inform the court by a date certain whether or not it

      4
      Unfortunately, because the district court made oral
findings of fact and conclusions of law, it is difficult to
discern which sections of 3161(h) the district court relied upon
in determining that each of the time periods at issue in this
case was excludable.
      5
      This subsection excludes the period of delay from the
filing of a pretrial motion through the conclusion of a hearing.

                                  6
intended to retry the defendant.         The Seventh and Ninth
Circuits have recognized that time used by the parties for
consideration, preparation, and response to specific requests
by the court is excludable.         See, e.g., United States v.
Hoslett, 998 F.2d 648, 657 (9th Cir. 1993); United States v.
Montoya, 827 F.2d 143, 153 (7th Cir. 1987).          The specific
requests in each of these cases dealt with motions; however,
the request by the court in the instant case is backed by the
same rationale as the courts in Hoslett and Montoya.        In all
of these cases, the court needed additional information to
properly dispose of an issue.       In Hoslett and Montoya, the
issue happened to be the resolution of motions; in the instant
case, the court admittedly could not set a trial schedule until
it resolved the issue of whether or not the Government would
retry the defendant.    Given the necessity of this information
to the court’s ability to properly dispose of the matter before
it, we find that this time should similarly be excluded under
the “other proceedings” section 3161(h)(1).       Thus, the court
was correct in determining that the time from October 14, 1995
to October 27, 1995 was excludable to allow the government to
decide whether it was going to retry the defendant.


     2.   Plea Negotiations.


     Although we have just determined that the entire time period
is indeed excludable, an alternative ground exists for all but four
(4) of the days in question: that the time should be excluded
because the parties were engaged in plea negotiations.




                                7
       Appellant asserts that the district court relied on 18 U.S.C.
§ 3161(h)(1)(I).       That section provides for the exclusion of time
attributable to any “delay resulting from consideration by the
court of a proposed plea agreement to be entered into by the
defendant and the attorney for the Government.”                      18 U.S.C. §
3161(h)(1)(I).      Appellant argues that this section allows exclusion
of time only for those delays resulting from “consideration by the
court” of a proposed plea agreement.               Appellant’s Brief at 21.
Thus, appellant contends, the exclusion does not apply until the
proposed plea agreement is finalized and submitted to the court.
Id.    (citing United States v. Velasquez, 890 F.2d 717, 719 (5th
Cir. 1989)).      Therefore, appellant believes that all eighteen (18)
days of this period should count toward the Speedy Trial clock.


       The Velasquez case, however, is distinguishable from the case
at bar.       In Velasquez, “[t]he records indicate[d] that the parties
discussed but did not finalize a plea agreement, and it [was] clear
that     no    agreement   was    ever       submitted   to    the    court   for
consideration.”      Id.   Accordingly, the Fifth Circuit found that the
time spent in the plea negotiations were not excludable from the
speedy trial calculation.        In the present case, on the other hand,
a finalized plea agreement was submitted to, but rejected by, the
court.
       We do agree, however, that § 3161(h)(1)(I) does not exclude
the time spent on plea negotiations, though it does not necessarily
follow that the time should count toward the speedy trial clock.
A number of circuits have determined that time expended on plea
negotiations is excludable under other sections of § 3161(h).                 For
example, in United States v. Montoya, 827 F.2d 143 (7th Cir. 1987),
the Seventh Circuit held that the plea bargaining process can
“qualify as one of many ‘other proceedings’ under the generic
exclusion of section 3161(h)(1).”             Id. at 150.     The court found


                                         8
that § 3161(h)(1)(D) allows “the government [to] exclude ‘[a]ny
period of delay resulting from other proceedings concerning the
defendant, including but not limited to . . . delay resulting from
trial with respect to other charges against the defendant. . . .’”
Id. (emphasis in original) (citing 18 U.S.C. § 3161(h)(1)(D)).
“Thus,” the court continued, “negotiating a plea bargain could be
considered a proceeding other than trial, or preparation for trial,
that qualifies for the exclusion.”                Id. (citing United States v.
Goodwin, 612 F.2d 1103, 1105 (8th Cir. 1980)).


     Similarly, the Sixth Circuit, in United States v. Bowers, 834
F.2d 607 (6th Cir. 1987), held that “the plea bargaining process
can qualify as one of many ‘other proceedings.’” Id. at 610 (citing
Montoya, supra, at 150).            In Bowers, the defendant failed to
communicate his rejection of the tentative plea agreement for half
of the speedy trial period.         While the court recognized that “[t]he
district court was justified in its stated belief that these
circumstances constituted an ‘extreme case’,” id.,that finding does
not appear to have been crucial factor in the case.                          The court
found     that   the   plea    bargaining            process     was    a    “delaying
circumstance[] that ought not be charged to the government.”                        Id.


     Finally, in United States v. Fields, 39 F.3d 439, 445 (3rd
Cir. 1994), the Third Circuit saw “no reason why an ‘ends of
justice’     continuance      may     not       be     granted     in       appropriate
circumstances to permit plea negotiations to continue.”                             Id.
(citing United States v. Williams, 12 F.3d 452, 460 (5th Cir.
1994)).     While the Fields court expressed a belief that such
continuances should be granted sparingly, the case remains relevant
for the    proposition     that     time       spent   on   plea   negotiations     is
excludable from the Speedy Trial Act calculation.                      It is also




                                           9
useful to note the Fields court’s favorable citation of the holding
in Montoya.


     Accordingly,       we   determine     that    the     time   spent    on   plea
negotiations is excludable.       Given the fact that no continuance was
requested or granted, the “ends of justice” continuance provision
is irrelevant.        Instead, we exclude the plea negotiations as a
“proceeding involving defendant” under § 3161(h)(1).                   Thus, at the
very least, fourteen (14) of the eighteen (18) days questioned by
appellant      are   excludable   from     the    speedy    trial      calculation.
Because   we    determined    that   the    entire    period      is    excludable,
however, the first period contains no days attributable to the
speedy trial clock.


C.   March 23, 1996 to April 2, 1996 — 11 days.6


     This period extends from the day after the court’s denial
of the proposed plea agreement to the day before the Government
filed its motion to dismiss.               The district court found that
this time was excludable because it was “reasonable” to give
the Government time to determine whether it would retry the
defendant.      For the same reasons as set forth in § B.1., supra,
we find that this time was properly excluded.


D. May 9, 1996 to May 20, 1996 — 12 days.7

     6
      The parties do not dispute that the time from November 1,
1995 to March 22, 1996 is excludable time, because the district
court was considering the proposed plea agreement.
     7
      The parties do not dispute that the time between March 23,
1996 and April 27, 1996 is excludable time, because the court was
considering the motion to dismiss. Additionally, there is no
dispute that April 27, 1996 through May 7, 1996, and May 22, 1996

                                      10
     On May 8, 1996, the government obtained a superseding
indictment, so that day is excluded.          Appellant claims that
nothing transpired between May 9, 1996 and May 20, 1996, so
these days should be counted towards the speedy trial time.
Specifically, appellant argues that because the superseding
indictment was so similar to the previous indictment, there was
no need to re-arraign the defendant.           Therefore, appellant
asserts that the time between indictment and arraignment is not
excludable. While appellant does not concede the exclusion of
May 21, 1996, the date of the arraignment, because it is not
necessary to re-arraign following a superseding indictment,
appellant does not stress this argument, either.        In any event,
in light of the remainder of our holdings, the exclusion or
non-exclusion of this one day is irrelevant to the speedy trial
calculation.
    In determining that this time is excludable, we rely on
the reasoning espoused in the case of United States v. McKay,
30 F.3d 1418, 1419-20 (11th Cir. 1994).       In McKay, the Eleventh
Circuit    Court   of   Appeals   affirmed    the   district   court’s
determination that the time between a superseding indictment
and the subsequent re-arraignment was excludable under the 18
U.S.C. § 3161(h)(6) exclusion.         The court recognized that the
Speedy Trial Act “permits the exclusion of time between the
dismissal of an indictment and the subsequent indictment or
appearance before a judge on the new charge (whichever is
later).”   Id.




through June 6, 1996 are not excludable periods of time, as
nothing transpired during these time periods.

                                  11
     The   court   went     on   to     find   that     the    filing    of   “a
superseding indictment has the same effect as dismissing an
original indictment and filing a new indictment . . .”                  Id. at
1420.      We   agree    with    this      assessment    and    the     court’s
determination that, as a result, the two events should be
treated equally.        Thus, because the Speedy Trial Act permits
the exclusion of time between the dismissal of the indictment
and the later of the subsequent indictment or arraignment, the
time between the superseding indictment and rearraignment in
the instant case was properly excluded by the district court.
Accordingly, at least thirteen (13) days are excluded from the
speedy trial calculation.


E.   June 7, 1996 to July 7, 1996.


     There is no dispute that the time from June 7, 1996 to
June 12, 1996 is excludable, as the court was considering the
government’s motion to amend jury instruction.                 Additionally,
although appellant raises this time period in his brief, there
is no dispute that the time from June 13, 1996 to July 7, 1996
is non-excludable.


F.   Summary.


Dates                                      Included                Excluded
Oct. 14, 1995 to Oct. 31, 1995                                        18 days
Nov. 1, 1995 to Mar. 22, 1996                                      142 days
Mar. 23, 1996 to Apr. 2, 1996                                         11 days
Apr. 3, 1996 to Apr. 26, 1996                                         24 days

                                      12
13
Apr. 27, 1996 to May 7, 1996             11 days
May 8, 1996 to May 21, 1996               1 day          13 days
May 22, 1996 to June 6, 1996             16 days
June 7, 1996 to June 12, 1996                             6 days
June 13, 1996 to July 7, 1996            25 days
TOTALS                                   53 days        215 days


                            CONCLUSION
      Because the fifty-three (53) days included in the speedy
trial calculation falls far short of the required seventy (70),
the   district court properly denied defendant’s motion to
dismiss.


      Accordingly, we affirm the judgment of the district court.


      A true copy.


           ATTEST:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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