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September 12, 1985


The opinion of the court was delivered by: NICKERSON

NICKERSON, District Judge

The indictment charges that defendant conspired to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. He moves to dismiss on the ground that the trial has not been held within the time limits of the Speedy Trial Act (the Act), 18 U.S.C. §§ 3161-3174.


 Defendant has been in custody since his arrest on January 16, 1985. He was assigned an attorney from the Criminal Justice Act Panel. The government filed the indictment on January 25, 1985. On February 11, 1985 he and his attorney appeared before a judge for a status report. The judge set March 15, 1985 as the date for filing pretrial motions and March 29, 1985 as the date for jury selection. On March 14, 1985 defendant's attorney delivered to the government and the clerk's office a motion to obtain discovery and to suppress evidence.

 On March 15, 1985 the judge held a status conference. Defendant, although in custody in the courthouse, was not present. His assigned counsel stated that he was about to begin a seven week criminal trial in another district. The judge said he had no objection to a postponement "but in order for my record, I need your defendant to sign a waiver on this speedy trial issue." Defendant's counsel then said: "Wouldn't this be excludable time anyway in that I filed a motion?" Turning to the Assistant United States Attorney, the judge asked "Is that acceptable to you?" The Assistant United States Attorney replied that the time would be excludable because of the pending motion "which immediately triggers excludable delay under the Speedy Trial Act and because of the unavailability of counsel." The judge concluded "So, we won't need the defendant." On ascertaining that defendant's counsel hoped to finish his other trial by the week of April 29, 1985, the judge set a status conference for May 13, 1985.

 For reasons that do not appear of record no conference took place on that date. The other trial of defendant's counsel ended on May 23, 1985, and the judge held a status conference on June 5, 1985 at defense counsel's request so that the court might apprise defendant "in court as to the reason for the adjournments already taken," "enter an order of judicial delay as a result of my unavailability," and determine whether defendant was "satisfied with my representation," as to which counsel said there had been some complaint.

 On being asked if he wished new counsel defendant replied "[n]o, no," and "[h]e's doing a very good job." In response to the judge's query, defense counsel confirmed that "[a]ll this has been excludable time" because of the pendency of the motion. The judge then said he would not handle the case unless it were tried at the Uniondale courthouse and unless defendant waived his rights to object to a jury panel to be drawn in Uniondale no earlier than July 12, 1985. Defendant's counsel, concluding that there would be "speedier progress" in Brooklyn, agreed, with his client's acquiescence, that the case should be reassigned to a judge sitting in Brooklyn. The Assistant United States Attorney also consented.

 The case was reassigned to this judge on June 10, 1985 by random selection. The government made no response to the pretrial motion and no effort to bring it on for a hearing or to take other action to bring to trial a case the government believed would last no more than a day. By July 2, 1985 defendant, evidently disturbed by the delay in the disposition of his case, had retained different counsel who on that date made the present motion to dismiss.

 Under the Act the trial of a defendant must generally commence within seventy days from the filing date of the indictment or the date of defendant's first appearance before a federal officer of the court, whichever is later. 18 U.S.C. § 3161(c)(1). As of July 2, 1985 the seventy days had long since expired, and the chief question is whether there are periods of excludable delay under 18 U.S.C. § 3161(h) that make the unexcludable delay to that date seventy days or less.


 The government urges that the period from March 15, 1985 onward is excludable as serving the "ends of justice" within the meaning of 18 U.S.C. § 3161(h)(8). This subsection excludes delay resulting from a continuance if the court grants it on the basis of its "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" and sets forth in the record "its reasons" for so finding.

 The subsection also provides that in determining whether to grant a continuance the court shall consider, among other things, whether the failure to grant the continuance (1) would deny the defendant "reasonable time to obtain counsel," or (2) "unreasonably" deny him "continuity of counsel," or (3) would deny his counsel "the reasonable time necessary for effective preparation, taking into account the exercise of due diligence."

 A court may only rarely grant this exclusion. See United States v. Tunnessen, 763 F.2d 74, 76 (2d Cir. 1985). Moreover, a condition of the grant is that the court address the above concerns, determine that the need for a continuance outweighs the interests of the public and the defendant in a speedy trial, and set forth the reasons for the determination. Id. at 76-77. The requirement that the court state those reasons on the record gives assurance that the court in fact weighed all the relevant matters and provides the appellate court with a record to review the adequacy of the stated reasons. Id. at 77. See also United States v. Brooks, 697 F.2d 517, 520 (3d Cir. 1982), cert. denied, 460 U.S. 1073, 75 L. Ed. 2d 952, 103 S. Ct. 1531 (1983).

 There is no indication in the transcript of the March 15, 1985 status conference that the judge balanced the pertinent concerns. The record affirmatively establishes that he made no statement of reasons why a delay might outweigh the interest in a speedy trial. The attorneys for both parties simply assumed that with the filing of the pretrial motion, which triggered a period of excludable delay, there was no need to focus on the "ends of justice" exclusion. The judge apparently then made the same assumption. The government did not urge him on March 15, 1985 to consider whether it would be in defendant's interest to have new and available counsel assigned to him rather ...

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