                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 06-10390
                Plaintiff-Appellee,                  D.C. No.
               v.                                CR-03-00335-4-
BRANDEN PETE,                                          RCB
             Defendant-Appellant.
                                                   OPINION

        Appeal from the United States District Court
                 for the District of Arizona
       Robert C. Broomfield, District Judge, Presiding

                  Argued and Submitted
       September 24, 2007—San Francisco, California

                        Filed May 8, 2008

       Before: John R. Gibson,* Marsha S. Berzon, and
                Carlos T. Bea, Circuit Judges.

                    Opinion by Judge Berzon




   *The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

                                 5041
                         UNITED STATES v. PETE                         5045


                               COUNSEL

Thomas M. Hoidal, The Law Office of Thomas M. Hoidal,
P.L.C., Phoenix, Arizona, for the defendant-appellant.

Vincent Q. Kirby, Assistant United States Attorney, Phoenix,
Arizona; Daniel G. Knauss, United States Attorney, District
of Arizona; John Boyle, Deputy Appellate Chief, District of
Arizona; for the plaintiff-appellee.


                               OPINION

BERZON, Circuit Judge:

   Branden Pete was convicted, after a jury trial, of second
degree murder on an Indian reservation, two counts of felony
murder, and conspiracy to commit murder. Pete was sen-
tenced to four concurrent terms of life imprisonment. He con-
tends that the Speedy Trial Act (“the STA” or “the Act”), 18
U.S.C. § 3161 et seq., was violated and the indictment against
him should therefore have been dismissed. We do not agree,
and so affirm.1

                                     I.

   Pete was arrested on tribal charges on August 23, 2002.2 On




  1
     Pete raised a number of other contentions on appeal, which are
addressed in a separate memorandum disposition filed contemporaneously
with this opinion.
   2
     We recount the dates in exacting detail, as they are critical to the STA
issue.
5046                 UNITED STATES v. PETE
March 7, 2003, the federal government filed a juvenile infor-
mation against Pete; he was transferred from tribal to federal
custody on March 10, 2003.

  On March 21, 2003, the government filed a motion to pro-
ceed against Pete as an adult. Before the government’s motion
was heard, Pete sought, on April 24, 2003, to dismiss the
juvenile information for violation of the speedy trial provision
of the Juvenile Delinquency Act (“JDA”), 18 U.S.C. § 5036,
arguing that he was not brought to trial within thirty days after
he was detained. On October 29, 2003, the government’s
motion to proceed against Pete as an adult was granted and
Pete’s motion to dismiss under the JDA denied.

   Pete thereupon filed a notice of interlocutory appeal on
November 3, 2003. This court affirmed the district court’s
decision to treat Pete as an adult on October 13, 2004. We
also determined that we did not have jurisdiction in the inter-
locutory appeal to hear Pete’s speedy trial challenge under the
JDA. See United States v. Brandon P., 387 F.3d 969, 972-74
(9th Cir. 2004). On November 17, 2004, Pete filed a petition
for panel rehearing and a petition for rehearing en banc,
which we denied on December 13, 2004. The mandate issued
in Brandon P. on December 21, 2004.

  Pete’s Motion to Recall the Mandate pending the filing of
a petition for a writ of certiorari in the Supreme Court, filed
on December 23, 2004, was denied on January 27, 2005. Pete
next filed a petition for a writ of certiorari to the Supreme
Court on March 10, 2005; it was denied on June 20, 2005.

   Meanwhile, on March 30, 2005, the government returned
an indictment charging Pete as an adult. Pete filed a motion
to dismiss the indictment on April 20, 2005, arguing that the
government violated the STA because the mandate for Pete’s
interlocutory appeal issued on Dec 21, 2004, but the indict-
ment was not filed until March 30, 2005, violating the STA’s
requirement that an indictment be filed within thirty days
                        UNITED STATES v. PETE                        5047
from the date of Pete’s arrest (absent excludable time, dis-
cussed infra). See 18 U.S.C. § 3161(b).

   On June 28, 2005, soon after the Supreme Court denied
certiorari with respect to Pete’s interlocutory appeal, the dis-
trict court denied Pete’s motion, holding that “[t]he entire
delay caused by the interlocutory appeal was excludable
[from the STA’s thirty day filing requirement], including up
until the Supreme Court denied the cert petition on June 20,
2005.” After trial, the jury found Pete guilty of the lesser
included offense of second degree murder on count 1 and
guilty of the remaining counts in the indictment. The district
court sentenced Pete to four concurrent sentences of life
imprisonment. This timely appeal followed.

                                   II.

   [1] Pete contends that the district court erred by denying his
motion to dismiss the indictment, arguing that the government
violated the STA, 18 U.S.C. § 3161 et seq.3 Under 18 U.S.C.
§ 3161(b), “[a]ny information or indictment charging an indi-
vidual with the commission of an offense shall be filed within
thirty days from the date on which such individual was
arrested or served with a summons in connection with such
charges.” Section 3161(h) excludes certain periods of time
from the time calculation under § 3161(b), stating:

      The following periods of delay shall be excluded in
      computing the time within which an information or
      an indictment must be filed, or in computing the time
      within which the trial of any such offense must com-
      mence: (1) Any period of delay resulting from other
      proceedings concerning the defendant, including but
      not limited to — . . . (E) delay resulting from any
  3
   The district court’s application of the STA is reviewed de novo, and its
factual findings are reviewed for clear error. United States v. Nelson, 137
F.3d 1094, 1108 (9th Cir. 1998).
5048                     UNITED STATES v. PETE
      interlocutory appeal; (F) 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. . . .

18 U.S.C. § 3161(h). Failure to comply with 18 U.S.C.
§ 3161(b) results in the dismissal of the complaint against the
defendant. See 18 U.S.C. § 3162(a)(1).

   [2] Pete’s STA clock did not begin running when the fed-
eral juvenile information was filed against him or when he
was taken into federal custody. At those times, Pete was
detained as an alleged juvenile delinquent and was subject to
the speedy trial provision of the JDA. See 18 U.S.C. § 5036.
Pete was not held in federal custody as an adult until October
29, 2003, when the district court granted the government’s
motion to proceed against Pete as an adult.4 Although Pete’s
STA clock began running on October 29,5 2003, it stopped on
  4
     Even if Pete’s STA clock had begun running on March 10, 2003, when
Pete was taken into federal custody, the STA clock would have stopped
running on March 21, 2003, when the government filed its motion to pro-
ceed against Pete as an adult. See 18 U.S.C. § 3161(h)(1)(F). Thus, regard-
less of whether Pete’s STA clock began running on March 10, 2003, when
he was taken into federal custody, or on October 29, 2003, when the dis-
trict court granted the government’s motion to proceed against Pete as an
adult, the difference for STA purposes would be a total of eleven non-
excludable days, which, on its own, is legally insufficient to trigger a vio-
lation of the STA.
   5
     A pretrial motion creates excludable time under § 3161(h)(1)(F).
Absent an alternative basis for excluding time under the STA, a district
court’s order on such a pretrial motion ends the period of excludable time
and causes a defendant’s STA clock to resume running, or in this case,
begin running. Even though a party may file an interlocutory appeal chal-
lenging certain district court orders, the time between the district court’s
order and the filing of an interlocutory appeal is not excludable. Thus, the
ten day period within which a defendant may file a notice of appeal, see
F.R.A.P. 4(b)(1)(a), is not excludable from the STA clock calculation
unless there is an intervening excludable event, such as a separate pretrial
motion or an interlocutory appeal. See United States v. Long, 900 F.2d
                         UNITED STATES v. PETE                          5049
November 3, 2003, when Pete filed notice of his interlocutory
appeal. See 18 U.S.C. § 3161(h)(1)(E). Pete’s STA clock
remained stopped until at least December 21, 2004, when this
court’s mandate issued, affirming the district court’s decision
to transfer Pete from juvenile to adult status.6

   The dispositive questions raised here are whether the pre-
indictment time during which Pete’s certiorari petition to the
Supreme Court was pending is excludable (March 10, 2005
through March 30, 20057), and if so, whether the time after

1270, 1276 (8th Cir. 1990) (stating that “[t]he excludable period under
[section 3161(h)(1)(E)] commences with the filing of the appeal,” and
including the period between the district court’s order and the filing of the
government’s interlocutory appeal in its STA calculation); United States
v. Pelfrey, 822 F.2d 628, 635 (6th Cir. 1987) (counting the time following
the district court’s order resolving pretrial motions, but prior to the filing
of an interlocutory appeal, as includable); United States v. Rush, 738 F.2d
497, 508-09 (1st Cir. 1984) (same).
   We note that this circuit has not had occasion directly to rule on this
issue before, although we have suggested the same answer reached by
other circuits. In United States v. Crooks, we stated that “the action occa-
sioning the new trial” under § 3161(e), which begins the seventy day
period under the STA, was the district court’s order, not the expiration of
time in which a party may file a notice of appeal following the district
court’s order. 804 F.2d 1441, 1445 (9th Cir. 1986) (“Crooks I”) , modified
by United States v. Crooks, 826 F.2d 4, 5 (9th Cir. 1987) (“Crooks II”).
Crooks did not have to decide the issue, however, because the notice of
appeal was filed the same day as the district court’s order. Id. We decide
the question now because, as will appear, it is relevant to our later analysis
of the time excludable for petitions for writ of certiorari.
   6
     The government contends that the speedy trial clock did not begin run-
ning under § 3161(b) because Pete “was never arrested as an adult or
charged by complaint prior to his indictment.” We do not address this
argument, as we conclude that there was no STA violation even if we
assume the clock began to run on October 29, 2003.
   7
     The petition for certiorari was not denied until June 20, 2005. The
indictment, however, was filed on March 30, 2005, and we are concerned
with pre-indictment delay; that is why we consider the excluded period as
ending on March 30, 2005. No reason appears, however, why the entire
period the petition for certiorari was pending would not have been exclud-
able had the indictment not been filed in the midst of that period.
5050                 UNITED STATES v. PETE
the mandate issued but before the certiorari petition was filed
is also excludable (December 21, 2004 through March 10,
2005).

    1.   Excludability of the certiorari petition period

                              A.

  [3] This court has never decided whether the time during
which a certiorari petition from a court of appeals decision in
an interlocutory appeal is pending is excludable from the
STA’s timing requirements. We now hold that such time is
excludable under § 3161(h)(1)(E) of the STA.

   As an initial matter, a certiorari petition undoubtedly comes
within § 3161(h)(1)’s catchall language, which excludes time
for “other proceedings concerning the defendant.” Cf. United
States v. Davenport, 935 F.2d 1223, 1233 (11th Cir. 1991)
(“We hold that the petition for writ of habeas corpus in this
case seeking dismissal of the indictment for violation of the
Speedy Trial Act is an ‘other proceeding’ analogous to an
interlocutory appeal. We hold that the delay resulting there-
from is excluded from the petitioner’s speedy trial clock
under 18 U.S.C.A. § 3161(h)(1)(E).”); United States v. Tyler,
878 F.2d 753, 758-59 (3d Cir. 1989) (stating, with regard to
a petition for a writ of mandamus, that “we perceive no prin-
cipled basis upon which to distinguish this kind of interlocu-
tory review with ‘any interlocutory appeal’ expressly
excluded under section 3161(h)(1)(E). The petition for writ of
mandamus sought appellate review of a district court’s order
concerning a pretrial ruling rendered prior to final judgment.
Accordingly, it was the functional equivalent of an interlocu-
tory appeal[,]” and holding that the time during which the
petition was pending was excludable as an analogous “other
proceeding” under (h)(1)) (emphasis in original).

  [4] More specifically, Pete’s certiorari petition is included
within subsection (h)(1)(E). Although a certiorari petition
                         UNITED STATES v. PETE                          5051
does not trigger an “appeal,”8 it is certainly part of the appel-
late process. Until a party files a certiorari petition or the time
to do so expires, a party is entitled to seek review by the
Supreme Court of an adverse appellate decision. Therefore,
even though certiorari petitions are not explicitly included in
§ 3161(h)(1)(E), a certiorari petition following an interlocu-
tory appeal is encompassed in § 3161(h)(1)(E)’s broad lan-
guage as a “ ‘delay resulting from an[ ] interlocutory
appeal.’ ” See United States v. Gambino, 784 F. Supp. 129,
138 (S.D.N.Y. 1992) (so holding) (quoting § 3161(h)(1)(E));
cf. United States v. Lyon, 588 F.2d 581, 582 (8th Cir. 1978)
(excluding the time during which a certiorari petition was
pending under what is now § 3161(h)(1)(D) of the STA, not-
ing that “[i]t would have been impracticable to retry the
instant case while appellate review of these issues was pend-
ing.”).

   [5] Here, interlocutory review of the district court’s order
was not final after this court’s decision in Brandon P., as Pete
sought review of the appellate decision via his certiorari peti-
tion. Therefore, the time during which Pete’s certiorari peti-
tion following his interlocutory appeal was pending is
excludable under § 3161(h)(1)(E) from the calculation of the
STA period for filing an indictment.

                                     B.

   As previously noted, the STA excludes “[a]ny period of
delay resulting from other proceedings concerning the defen-
dant,” including “delay resulting from any interlocutory
appeal.” 18 U.S.C. § 3161(h)(1)(E). If, as is often the case, the
appellate mandate had been stayed while Pete sought certio-
rari from the Supreme Court,9 applying the statute would be
   8
     The Supreme Court has jurisdiction over certain cases on direct appeal.
See, e.g., 28 U.S.C. § 1253. In contrast, the Supreme Court has discretion-
ary authority to review decisions by granting a petition for a writ of certio-
rari. See 28 U.S.C. § 1254(1).
   9
     “A party may move to stay the mandate pending the filing of a petition
for a writ of certiorari in the Supreme Court. The motion must be served
5052                     UNITED STATES v. PETE
fairly straightforward: The interlocutory appeal would still be
pending until the mandate issued. United States v. Crooks,
826 F.2d 4, 5 (9th Cir. 1987) (“Crooks II”) (citing United
States v. Ross, 654 F.3d 612, 616 (9th Cir. 1981)). The twist
in this case comes about because there was no timely motion
to stay the mandate; this court did issue its mandate and then
denied Pete’s motion to recall the mandate. With the mandate
in effect, the district court resumed jurisdiction over the case.
See United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th
Cir. 2000) (“Once a mandate issues, . . . jurisdiction over a
criminal case automatically revests in the district court.”)
(emphasis in original). As a result, the government did not
have to, and did not, wait until the Supreme Court denied
Pete’s certiorari petition before filing the indictment in the
district court. Instead, the indictment was filed while Pete’s
certiorari petition was pending. We are left with a situation in
which the putatively excludable period quite obviously did
not preclude the government from proceeding to file the
indictment, raising the question whether the delay in doing so
“result[ed] from” the pendency of the certiorari petition.

   [6] Whether the time period used in pursuing an interlocu-
tory     appeal    is    automatically      excludable      under
§ 3161(h)(1)(E), even if the appeal did not actually cause any
delay, is an open issue in this court, but just barely so. Apply-
ing parallel “delay resulting from” language, we have held
that pretrial motions, excludable under § 3161(h)(1)(F) of the
STA, need not actually cause any delay for the time during

on all parties and must show that the certiorari petition would present a
substantial question and that there is good cause for a stay.” F.R.A.P.
41(d)(2)(A). See also 9th Cir. R. 41-1 (stating that a stay of the mandate
pending petition to the Supreme Court “will not be granted as a matter of
course, but will be denied if the Court determines that the petition for cer-
tiorari would be frivolous or filed merely for delay.”); Bryant v. Ford
Motor Co., 886 F.2d 1526, 1528-1529 (9th Cir. 1989) (“Ordinarily, [ ] a
party seeking a stay of the mandate following this court’s judgment need
not demonstrate that exceptional circumstances justify a stay.”).
                        UNITED STATES v. PETE                        5053
which the motions are pending to be excludable. See United
States v. Vo, 413 F.3d 1010, 1015 (9th Cir. 2005) (holding
that “a pretrial motion triggers an automatic exclusion [under
§ 3161(h)(1)(F)], even though no actual delay results”) (quo-
tation marks and internal citations omitted); Crooks II, 826
F.2d at 5 (holding that even though “the trial date had already
been set and the motion or proceeding actually caused no
delay” in the start of the trial, the period of pendency of the
“motion or proceeding” was nonetheless excludable); United
States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984)
(“ ‘We reject [an] . . . analysis which would require that to be
excludable under (F) a particular pretrial motion must have
caused an actual delay in the commencement of the trial. We
accept, instead, the government’s view that a pretrial motion
triggers an automatic exclusion[.]”) (alterations in original)
(quoting United States v. Cobb, 697 F.2d 38, 46 (2nd Cir.
1982)).10 We can perceive no basis for treating the exclusion
for interlocutory appeals under subsection (h)(1)(E) differ-
ently from the exclusion for pretrial motions contained in sub-
section (h)(1)(F), as both subsections contain identical “delay
resulting from” language. Cf. United States v. Gallardo, 773
F.2d 1496, 1502 (9th Cir. 1985) (stating that “the fact that
Congress chose to employ the same phrase in [§§ 3161(h)(1)-
(6) and (8)] suggests that it intended them to be interpreted
uniformly”).

   United States v. Clymer, 25 F.3d 824 (9th Cir. 1994) is not
to the contrary. Clymer dealt with a motion to dismiss that the
district court continued, without deciding, until after trial. Id.
at 830. The district court then set the trial schedule without
any reference to the pending motion. Id. As Clymer itself
observed and as we observed in a later case largely limiting
Clymer to its facts, see Vo, 413 F.3d at 1014-15, the district
court in Clymer in effect dismissed the pretrial motion and put
  10
    See also Vo, 413 F.3d at 1015 n.2 (discussing decisions from other cir-
cuits holding that exclusions under § 3161(h)(1) are automatic without
requiring a factual finding of causation).
5054                      UNITED STATES v. PETE
off deciding the issue raised in that motion until after trial.
Clymer, 25 F.3d at 830. Under these circumstances, we held
the time during which the pretrial motion was pending was
not excludable under § 3161(h)(1)(F). Id. The precise holding
of Clymer does not apply here, either directly or by extension,
because the certiorari petition had not been put off by the
court in which it was pending, the Supreme Court, until after
the relevant STA trigger date, here the filing of the indict-
ment. See Vo, 413 F.3d at 1015 (“‘[I]n the years since Clymer
was decided, its holding has been limited to situations in
which a motion is postponed until after trial.’ ”) (internal cita-
tions omitted) (quoting United States v. Lewis, 349 F.3d 1116,
1121 (9th Cir. 2003)).11

   [7] We now hold that, like the exception under
§ 3161(h)(1)(F) for pretrial motions, the exclusion of time
under § 3161(h)(1)(E) for an “interlocutory appeal” need not
actually cause any delay to create excludable time; the exclu-
sion is automatic.

   We recognize that neither Vo, Crooks II, nor Van Brandy
dealt with the time limit for the filing of the indictment speci-
fied in § 3161(b), which is at issue in this case. Vo and Van
Brandy dealt with time limits under § 3161(c)(1), which pro-
vides that “the trial of a defendant charged in an information
   11
      Clymer also observed, more broadly, that “[a]ccording to its plain
terms, § 3161(h)(1)(F) applies only when the delay in bringing the case to
trial is the result of the pendency of a pretrial motion. . . . In short, under
the plain language of the statute, delay is excludable only when it in some
way results from the pendency of the motion.” Id. (emphasis in original).
Judge Berzon agrees with this observation and, were the issue an open one
in this court, would hold that there is no excludable time here for the
period the petition for a writ of certiorari was pending. The indictment
both could be and was filed during that period, demonstrating that no
“delay result[ed] from” the pendency of the petition. Given the line of
cases ending with Vo, however, Judge Berzon believes the question before
us to be sufficiently controlled by precedent that a three-judge panel may
not follow the logic of Clymer absent a similar factual context. (Judges
Bea and Gibson do not join in this footnote.)
                        UNITED STATES v. PETE                        5055
or indictment with the commission of an offense shall com-
mence within seventy days from the filing date (and making
public) of the information or indictment.” Crooks dealt with
time limitations for a retrial after an interlocutory appeal,
applying § 3161(e) “by analogy.”12 See United States v.
Crooks, 804 F.2d 1441, 1445 (9th Cir. 1986) (“Crooks I”),
modified by Crooks II, 826 F.2d at 5.

   Here, unlike in Vo, Crooks II, or Van Brandy, the relevant
time period is the one between Pete’s arrest and his indict-
ment, which is governed by § 3161(b). But the STA makes no
distinction regarding the applicability of the exclusions under
§ 3161(h)(1) to the pre-indictment period (governed by
§ 3161(b)) and the pretrial period (governed by §§ 3161(c)
and (e)),13 and nothing in Vo, Crooks II, or Van Brandy sug-
gests such a distinction.

   [8] We therefore hold that the automatic exclusion of time
for interlocutory appeals under § 3161(h)(1)(F) is applicable
pre-indictment under § 3161(b). Cf. United States v. Robin-
son, 887 F.2d 651, 656 (6th Cir. 1989) (holding that the
exclusion of time under § 3161(h)(1)(D)14 from the thirty-day
pre-indictment time limit under § 3161(b) of the STA is auto-
matic and no causal connection is required); United States v.
Montoya, 827 F.2d 143, 151-52 (7th Cir. 1987) (stating that
“Congress did not intend to saddle the government with prov-
ing a causal relationship between another proceeding and its
delay in indicting or bringing a defendant to trial each time it
  12
      18 U.S.C. § 3161(e) provides “[i]f the defendant is to be tried again
following an appeal or a collateral attack, the trial shall commence within
seventy days from the date the action occasioning the retrial becomes
final.”
   13
      18 U.S.C. § 3161(h) provides: “The following periods of delay shall
be excluded in computing the time within which an information or an
indictment must be filed, or in computing the time within which the trial
of any such offense must commence . . . .” (emphasis added).
   14
      18 U.S.C. § 3161(h)(1)(d) excludes “delay resulting from trial with
respect to other charges against the defendant[.]”
5056                 UNITED STATES v. PETE
seeks an exclusion under section 3161(h)(1),” and holding
that the time during which an “other proceeding” under
§ 3161(h)(1) is pending is automatically excludable from the
pre-indictment period under § 3161(b)).

   [9] The upshot is that even though the filing of Pete’s cer-
tiorari petition did not actually cause any delay — as evi-
denced by the fact that the indictment was returned while the
certiorari petition was pending — the time during which
Pete’s certiorari petition was pending is still excludable under
our precedents, as the period is one covered by § 3161(h)(1).

         2.   Excludability of the pre-filing period

   Pete argues that even if the period during which his certio-
rari petition was pending is excludable, the charges against
him should be dismissed because more than thirty days of
includable time passed between the issuance of the mandate
in his interlocutory appeal and the filing of his certiorari peti-
tion. We conclude that in the unusual circumstances of this
case, Pete’s STA clock resumed running with the issuance of
the mandate, but stopped soon thereafter because the period
of time beginning with Pete’s motion to recall the mandate
and ending with the filing of the petition is excludable.

   [10] We have held that generally, after an appeal, the
period of excludable delay under the STA ends on the day this
court’s mandate issues, because that is the date the appellate
decision is final and jurisdiction returns to the district court.
See Crooks II, 836 F.2d at 5 (quoting Ross, 654 F.3d at 616);
see also United States v. Lloyd, 125 F.3d 1263, 1265 n.1 (9th
Cir. 1997) (holding that the STA clock under § 3161(e) began
running again with the issuance of the mandate) (citing
Crooks II, 826 F.2d at 5); United States v. Rush, 738 F.2d
497, 509 (1st Cir. 1984) (relying on cases applying § 3161(e)
to hold that excludable time for interlocutory appeals under
§ 3161(h)(1)(E) ends when the mandate issues, noting that
“the date on which the mandate is issued . . . determines when
                        UNITED STATES v. PETE                      5057
the district court reacquires jurisdiction for further proceed-
ings.”) (citing Ross, 654 F.2d at 616). Crooks II did not spe-
cifically address the possibility that a certiorari petition would
be filed after the mandate issues for an interlocutory appeal,
presumably because no such circumstance was there pre-
sented, but it did hold that the exclusion for interlocutory
appeals ends with the issuance of the mandate, not with the
expiration of the time to file a petition for writ of certiorari.
Somewhat analogously, in the context of an appeal from the
district court, the ten days within which a party may file a
notice of appeal following a district court order are not
excludable under the STA unless there is an intervening
excludable event; the STA begins to run following the district
court’s order.15 See n.5, supra. In the run of cases, Crooks II
dictates the parallel rule here — that is, that the period within
which to file a petition for a writ of certiorari from an inter-
locutory appeal is not usually excludable time. Applying this
rule, the STA clock in this case resumed running with the
issuance of this court’s mandate.

   This case, however, is an oddity. Ordinarily, in situations
in which a defendant intends to file a certiorari petition, the
defendant will typically seek a timely stay of the mandate
pending the filing of a certiorari petition, thereby indicating
an intention to file one. In those circumstances, assuming the
stay of the mandate is granted, the STA clock would resume
when the mandate issues (i.e., after the resolution of the cer-
tiorari petition).

  [11] Here, however, there was no timely motion to stay the
mandate. The mandate issued, and jurisdiction was thereby
  15
    Although the pre-appeal period is useful as an analogy, the fact that
the time during which a party may file an appeal is not automatically
excludable is not dispositive with regard to the pre-certiorari petition
period. A notice of appeal following a pretrial motion begins an entirely
new proceeding, while the certiorari petition is, for the reasons stated
supra, encompassed within the broad language of the exclusion for inter-
locutory appeals contained in § 3161(h)(1)(E).
5058                      UNITED STATES v. PETE
returned to the district court. See Ruiz-Alvarez, 211 F.3d at
1184 (“Once a mandate issues, . . . jurisdiction over a criminal
case automatically revests in the district court.”). Pete’s STA
clock resumed running at that time. But soon thereafter, when
filing a motion to recall the mandate, Pete did state an inten-
tion to file a petition for a writ of certiorari (and did in fact
do so).

   Pete could have filed the petition for a writ of certiorari
within the thirty day STA period after the issuance of the
mandate (or after the denial of the motion to recall the man-
date). Had he done so, he would clearly have triggered the
exclusion for the period during which the certiorari petition
was pending. That he did not do so, but instead — after
announcing that he was going to file a petition — waited the
full ninety days after the denial of rehearing permitted by the
Supreme Court rules,16 see Sup. Ct. R. 13, should not change
the timing of the government’s obligation to file an indict-
ment under the STA. The government has no control over the
defendant’s choice in this regard. Under these circumstances,
it would make little sense to require — as opposed to allow
— the government to proceed against a defendant within
thirty days after the mandate issues even though the defendant
has said he will file a petition for writ of certiorari (which he
has ninety days after judgment or the denial of rehearing to
file), only to pause the criminal proceedings once a timely
certiorari petition is actually filed to await the Supreme
Court’s decision. Cf. Tyler, 878 F.2d at 759 (recognizing in
the context of a petition for a writ of mandamus that although
the district court retained jurisdiction over the case following
  16
     A timely certiorari petition must be filed “within 90 days after entry
of the judgment,” or “if a petition for rehearing is timely filed in the lower
court by any party, or if the lower court appropriately entertains an
untimely petition for rehearing or sua sponte considers rehearing, the time
to file the petition for a writ of certiorari for all parties . . . runs from the
date of the denial of rehearing or, if rehearing is granted, the subsequent
entry of judgment[,]” unless a Justice extends the time “for a period not
exceeding 60 days” for good cause. Sup. Ct. R. 13.
                     UNITED STATES v. PETE                   5059
the government’s mandamus petition, “the district court justi-
fiably could defer trial until resolution of the appellate pro-
ceedings. . . . Had the government prevailed on the merits of
the mandamus petition . . . the trial strategies of the govern-
ment as well as the defense would surely have been altered.”).

   [12] We conclude, instead, that the least awkward and most
practical interpretation of the STA, given the competing con-
siderations, is that once the defendant has clearly announced
in a court document an intention to file a certiorari petition,
the time following such an announcement is excludable under
the STA as a “delay resulting from an[ ] interlocutory appeal”
until (1) the defendant formally disclaims that intent; (2) the
period for filing a petition for a writ of certiorari expires; (3)
the petition is filed but denied; or (4) the petition is granted,
decided on the merits, and any further court of appeals pro-
ceedings are concluded. As Pete filed a motion to recall the
mandate, spelling out his intention to file a petition for a writ
of certiorari, the period from the filing of that motion until the
certiorari petition was denied is excluded under the STA.

                               III.

   [13] For the foregoing reasons, we hold that the entire
period from the time Pete filed his motion to recall the man-
date on December 23, 2004, up until the Supreme Court
denied Pete’s certiorari petition on June 20, 2005, is exclud-
able. As a result, there was no violation of the STA. Thus, the
district court’s denial of Pete’s motion to dismiss based on the
STA is AFFIRMED.
