The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
An indictment was filed on March 12, 1985 charging the defendants with conspiracy to bomb buildings used in interstate commerce and buildings used by government agencies; with the actual bombings of ten buildings and with the attempted bombing of an eleventh in violation of 18 U.S.C. § 2, 371, 844(f) and (i).
At the time the indictment was filed the defendants Thomas and Carol Manning were fugitives. They were captured approximately six weeks later. Pre-trial motions seeking a wide variety of relief were filed on behalf of all defendants and hearings on and the disposition of those motions continued during the ensuing months. Jury selection finally commenced on October 3, 1985 and the trial began on October 21, 1985. During the course of the trial, for reasons which need not be recounted here, a mistrial was declared as to Patricia Gros and her case was severed from that of her co-defendants on November 21, 1985.
During the course of the trial, approximately 160 witnesses were called and approximately 1500 exhibits were received in evidence. In addition, a variety of charts were received as pedagogical devices to assist the jury. The defendants who, the Court was informed, were the objects of the most extensive manhunt in the history of the United States, were also the objects of more than routine security precautions while in the courthouse and while being transported to and from the Metropolitan Correction Center.
The jury returned a partial verdict on March 4, 1986 and a final verdict on March 7, 1986, five months after jury section commenced. Thomas Manning and Jan Laaman were convicted of conspiracy and of six of the substantive counts. Raymond Levasseur and Richard Williams were convicted of conspiracy and of five of the substantive counts. Carol Manning and Barbara Curzi were convicted of conspiracy and of two of the substantive counts. Carol Manning was specifically acquitted of Count 10. As to the other counts on which the jury reported they were unable to agree, a mistrial was declared. Thus, a mistrial was declared as follows: Levasseur -- six counts; Richard Williams -- six counts; Thomas Manning -- five counts; Jan Laaman -- five counts; Carol Manning -- eight counts and Barbara Curzi -- eight counts.
Sentence was imposed upon each of the defendants during the week of April 28, 1986 with the last sentence imposed on Thomas Manning on May 2, 1986. At the time of sentence each defendant moved to dismiss the open counts pertaining to him or her. Those motions were denied. The defendants then requested that a trial date be set with respect to those counts, insisting that 18 U.S.C. § 3161(e) requires that the trial must commence "within seventy days from the date the action occasioning the retrial becomes final." The government has represented that if the convictions are affirmed on appeal they will not reprosecute the defendants on the open counts and will move that those counts be dismissed. In the event, however, that the convictions are reversed on appeal, then the government indicated that they will reprosecute the defendants on the open counts and on any or all counts as to which their respective convictions may be reversed. The defendants have filed notices of appeal.
This motion was brought by the government seeking an order pursuant to 18 U.S.C. § 3161(h)(8)(A) or § 3161(h)(1) which would exclude from the Speedy Trial Act calculations the time up to the determination of the appeals from the judgments of convictions. For the reasons which follow, the motion is granted.
18 U.S.C. § 3161 (h)(8)(A) provides in substance that excluded in computing the time within which a trial must commence shall be any period of delay resulting from a continuance granted by a judge "on the basis of his 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." The statute requires that the reasons for such findings must be set forth. Some of the factors a judge shall consider in determining whether to grant such a continuance are listed in 3161(h)(8)(B). None of those factors is applicable here, but that list is not exclusive.
This motion appears to present a question of novel impression. Neither the government nor defense counsel has called the court's attention to any dispositive precedent nor has the Court's research uncovered any.
There are some cases which, though not presenting identical facts, provide touchstones that guide the way to a decision. In United States v. Scalf, 760 F.2d 1057 (10th Cir. 1985), the defendant's first trial ended in a conviction which was reversed on appeal. The date for his second trial was originally set for July 14, 1983, but on July 5th the government made an oral motion for a continuance. The Government's motion was made so that the Solicitor General of the United States could determine whether or not to seek certiorari. That motion was granted on July 13th. November 14, 1983 was fixed as the new trial date. The defendant was again convicted upon his second trial and on appeal contended that his conviction must be reversed because § 3161(e) of the Speedy Trial Act was violated. The Court of Appeals reversed, holding that "the time consumed in making a decision whether to seek certiorari is not an excludable period of delay recognized by § 3161(h) and a continuance granted for such purpose is likewise not excludable delay." 760 F.2d at p.1059. It is important to note, however, that the Order of the district court in granting the continuance was not bottomed upon § 3161(h)(8)(A). In a footnote at p. 1059 the Court of Appeals pointedly observed:
Inasmuch as the district court did not base its grant of the continuance on a finding 'that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,' the continuance does not meet the specific requirements of 18 U.S.C. § 3161(h)(8)(1982) and therefore cannot qualify as a period of excludable delay under 18 U.S.C. § 3161(h)(1982). We do not decide the question whether, under appropriate circumstances, a district court might find, in accordance with the parameters of § 3161(h)(8), that a continuance granted to allow the government adequate time to decide whether or not to seek certiorari of a prior appeal serves 'the ends of justice,' thereby qualifying the continuance as excludable delay."
Similarly instructive is United States v. Patin, 501 F. Supp. 182 (E.D.La. 1980). A continuance was granted in the federal court to permit the defendant to be tried first in a state court on similar charges. The applicability of 18 U.S.C. § 3161(h)(1)(D) upon which the defendant's motion for a continuance was based, was in doubt. That section permits time to be excluded for "delay resulting from trial with respect to other charges against the defendant." The reason for doubt was that the state proceeding would not come to trial during the Speedy Trial Act's time period, therefore "the time period under the Act will have tolled before the state proceeding commences, precluding subsequent federal prosecution." The government agreed to the continuance of the defendant's trial on the federal charges because it contemplated dropping the federal charges against him if he should be convicted in state court in accordance with its Petite policy. See Petite v. United States, 361 U.S. 529, 4 L. Ed. 2d 490, 80 S. Ct. 450 (1960). In granting the continuance and excluding the time pending the completion of the state trial the court said at p. 185:
"The benefits to the defendant and the public from the application of the Petite policy to continue the trial demonstrably outweigh their interests in a speedy trial. In this case, application of the policy will not automatically lead to the dismissal of the outstanding federal charges against the accused. . . .Deferring the accused's trial date until after the resolution of the pending state proceeding may lead to the dismissal of the federal charges. While this dismissal may not produce the personal satisfaction of having bested the government in its attempt to prove its case that an accused might glean from a 'not guilty' verdict, the dismissal of the federal charges will surely save the accused any anguish he may undergo in awaiting the outcome of ...