Zedner v. United States

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ZEDNER v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 05–5992. Argued April 18, 2006—Decided June 5, 2006

The Speedy Trial Act of 1974 (Act) generally requires a federal criminal

trial to begin within 70 days after a defendant is charged or makes

an initial appearance. 18 U. S. C. §3161(c)(1). Recognizing that

criminal cases vary widely and that there are valid reasons for

greater delay in particular cases, the Act includes a long and detailed

list of periods of delay that are excluded in computing the time within

which trial must start. Section 3161(h)(8) permits a district court to

grant a continuance and exclude the resulting delay if it makes on-

the-record findings that the ends of justice served by granting the

continuance outweigh the public’s and defendant’s interests in a

speedy trial. To promote compliance without needlessly subverting

important criminal prosecutions, the Act provides that, if the trial

does not begin on time and the defendant moves, before the trial’s

start or entry of a guilty plea, to dismiss, the district court must dis

miss the charges, though it may choose whether to do so with or

without prejudice.

In April 1996, petitioner was indicted on charges arising from his

attempt to open accounts using counterfeit United States bonds. The

District Court granted two “ends-of-justice” continuances, see

§3161(h)(8). When, at a November 8 status conference, petitioner re

quested another delay to January 1997, the court suggested that pe

titioner waive the application of the Act “for all time,” and produced a

preprinted waiver form for petitioner to sign. At a January 31, 1997,

status conference, the court granted petitioner another continuance

so that he could attempt to authenticate the bonds, but made no men

tion of the Act and no findings to support excluding the 91 days be

tween January 31 and petitioner’s next court appearance on May 2

(1997 continuance). Four years later, petitioner filed a motion to dis

2 ZEDNER v. UNITED STATES

Syllabus

miss the indictment for failure to comply with the Act, which the Dis

trict Court denied based on the waiver “for all time.” In a 2003 trial,

petitioner was convicted. The Second Circuit affirmed. Acknowledg

ing that a defendant’s waiver of rights under the Act may be ineffec

tive because of the public interest served by compliance with the Act,

the court found an exception for situations when the defendant

causes or contributes to the delay. It also suggested that the District

Court could have properly excluded the 91-day period based on the

ends of justice, given the case’s complexity and the defense’s request

for additional time to prepare.

Held:

1. Because a defendant may not prospectively waive the application

of the Act, petitioner’s waiver “for all time” was ineffective. Pp. 9–12.

(a) The Act comprehensively regulates the time within which a

trial must begin. Section 3161(h), which details numerous categories

of delay that are not counted in applying the Act’s deadlines, con

spicuously has no provision excluding periods of delay during which a

defendant waives the Act’s application. It is apparent from the Act’s

terms that this was a considered omission. Instead of allowing de

fendants to opt out, the Act demands that continuances fit within one

of §3161(h)’s specific exclusions. In deciding whether to grant an

ends-of-justice continuance, a court must consider a defendant’s need

for “reasonable time to obtain counsel,” “continuity of counsel,” and

“effective preparation” of counsel. §3161(h)(8)(B)(iv). If a defendant

could simply waive the Act’s application in order to secure more time,

no defendant would ever need to put such considerations before the

court under the rubric of an ends-of-justice exclusion. The Act’s pur

poses also cut against exclusion on the grounds of mere consent or

waiver. Were the Act solely designed to protect a defendant’s right to

a speedy trial, such an application might make sense, but the Act

was also designed with the public interest firmly in mind. This in

terpretation is entirely in accord with the Act’s legislative history.

Pp. 9–11.

(b) This Court rejects the District Court’s reliance on §3162(a)(2),

which provides that a defendant whose trial does not begin on time is

deemed to have waived the right to move for dismissal if that motion

is not filed prior to trial or entry of a guilty plea. That section makes

no mention of prospective waivers, and there is no reason to think

that Congress wanted to treat prospective and retrospective waivers

similarly. Allowing prospective waivers would seriously undermine

the Act because, in many cases, the prosecution, defense, and court

would all like to opt out, to the detriment of the public interest. Sec

tion 3162(a)(2)’s retrospective waiver does not pose a comparable

danger. Because the prosecution and court cannot know until the

Cite as: 547 U. S. ____ (2006) 3

Syllabus

trial starts or the guilty plea is entered whether the defendant will

forgo moving to dismiss, they retain a strong incentive to make sure

the trial begins on time. Pp. 11–12.

2. Petitioner is not estopped from challenging the excludability un

der the Act of the 1997 continuance. Factors that “typically inform

the decision whether to apply the [estoppel] doctrine in a particular

case” include (1) whether “a party’s later position [is] clearly inconsis

tent with its earlier position”; (2) “whether the party has succeeded in

persuading a court to accept that . . . earlier position”; and (3)

“whether the party seeking to assert an inconsistent position would

derive an unfair advantage or impose an unfair detriment on the op

posing party if not estopped.” New Hampshire v. Maine, 532 U. S.

742, 750–751. None of the three possible “positions” taken by peti

tioner gives rise to an estoppel. First, recognizing an estoppel based

on petitioner’s promise not to move for dismissal under §3162(a)(2)

would entirely swallow the Act’s no-waiver policy. Second, peti

tioner’s (mistaken) agreement that waivers are enforceable does not

provide a ground for estoppel because petitioner did not “succee[d] in

persuading” the District Court to accept the validity of prospective

waivers. On the contrary, the District Court requested the waiver

and produced the form for petitioner to sign. Even if the other factors

favor estoppel, they do not predominate. Finally, petitioner’s repre

sentation at the January 31 status conference that a continuance was

needed to gather evidence of the bonds’ authenticity does not support

estoppel because that position was not “clearly inconsistent” with the

position that he now takes in seeking dismissal, i.e., that delay from

that continuance was not excluded under the Act. Nothing in the

discussion at the conference suggests that the question presented by

the continuance request was viewed as anything other than a case-

management question laying entirely within the District Court’s dis

cretion. Pp. 12–15.

3. When a district court makes no findings on the record to support

a §3161(h)(8) continuance, harmless-error review is not appropriate.

The Government argues that an express finding need not be entered

contemporaneously and could be supplied on remand. But the Act

requires express findings, see §3161(h)(8)(A), and at the very least

implies that those findings must be put on the record by the time the

district court rules on the motion to dismiss. Because the District

Court made no such express findings, the 1997 continuance is not ex

cluded from the speedy trial clock. This error is not subject to harm

less-error review. Harmless-error review under Federal Rule of

Criminal Procedure 52(a) presumptively applies to “all errors where

a proper objection is made,” Neder v. United States, 527 U. S. 1, 7,

but strong support for an implied repeal of Rule 52(a) in this context

4 ZEDNER v. UNITED STATES

Syllabus

is provided by the Act’s unequivocal provisions, which specify that a

trial “shall commence” within 70 days, §3161(c)(1) (emphasis added),

and that “[n]o . . . period of delay” from an ends-of-justice continuance

“shall be excludable” from the time period unless the court sets forth

its reasoning, §3161(h)(8)(A) (emphasis added). Applying harmless-

error review would also tend to undermine the detailed requirements

of the provisions regulating ends-of-justice continuances. Pp. 15–18.

4. Because the 91-day continuance, which was not excluded from

the speedy trial clock, exceeded the maximum 70-day delay, the Act

was violated, and there is no need to address whether other periods

of delay were not excludable. The District Court may determine in

the first instance whether the dismissal in this case should be with or

without prejudice. Pp. 18–19.

401 F. 3d 36, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ.,

joined, and in which SCALIA, J., joined as to all but Part III–A–2.

SCALIA, J., filed an opinion concurring in part and concurring in the

judgment.

Cite as: 547 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–5992

_________________

JACOB ZEDNER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 5, 2006]

JUSTICE ALITO delivered the opinion of the Court.

This case requires us to consider the application of the

doctrines of waiver, judicial estoppel, and harmless error

to a violation of the Speedy Trial Act of 1974 (Act), 18

U. S. C. §§3161–3174. The Act generally requires a fed

eral criminal trial to begin within 70 days after a defen

dant is charged or makes an initial appearance,

§3161(c)(1), but the Act contains a detailed scheme under

which certain specified periods of delay are not counted.

In this case, petitioner’s trial did not begin within 70 days

of indictment. Indeed, his trial did not commence until

more than seven years after the filing of the indictment,

but petitioner, at the suggestion of the trial judge, signed a

blanket, prospective waiver of his rights under the Act.

We address the following questions: whether this waiver

was effective; whether petitioner is judicially estopped

from challenging the validity of the waiver; and whether

the trial judge’s failure to make the findings required to

exclude a period of delay under a particular provision of

the Act, §3161(h)(8), was harmless error.

I

In March 1996, petitioner attempted to open accounts at

2 ZEDNER v. UNITED STATES

Opinion of the Court

seven financial institutions using counterfeit $10 million

United States bonds. The quality of the counterfeiting

was, to put it mildly, not expert. One bond purported to be

issued by the “Ministry of Finance of U. S. A.” 401 F. 3d

36, 39 (CA2 2005) (internal quotation marks omitted).

Others contained misspelled words such as “Thunted

States” and the “Onited States” (United States),

“Dhtladelphla” (Philadelphia), “Cgicago” (Chicago), and

“forevev” (forever). Id., at 39, n. 1 (internal quotation

marks omitted). After petitioner presented these bonds,

the Secret Service was contacted, and petitioner was

arrested. Following arraignment on a criminal complaint,

he was released on bond.

On April 4, 1996, a grand jury in the Eastern District of

New York indicted petitioner on seven counts of attempt

ing to defraud a financial institution, in violation of 18

U. S. C. §1344, and one count of knowingly possessing

counterfeit obligations of the United States, in violation of

§472. On June 26, the District Court, citing the complex

ity of the case, granted what is termed an “ends-of-justice”

continuance, see §3161(h)(8)(B)(ii), until September 6. On

September 6, the District Court granted another continu

ance, this time until November 8.

At the November 8 status conference, petitioner re

quested, without opposition from the Government, a fur

ther adjournment to January 1997. Concerned about the

difficulty of fitting petitioner’s trial into its heavily sched

uled calendar and the prospect that petitioner might “only

waive [the Act] for so long as it is convenient for [him] to

waive,” the District Court instructed petitioner as follows:

“I think if I’m going to give you that long an adjournment,

I will have to take a waiver for all time.” App. 71. Peti

tioner’s counsel responded that the defense would “waive

for all time. That will not be a problem. That will not be

an issue in this case.” Id., at 72.

The District Court then addressed petitioner directly

Cite as: 547 U. S. ____ (2006) 3

Opinion of the Court

and appears to have attempted to explain the operation of

a provision of the Act, 18 U. S. C. §3162(a)(2), under which

a defendant whose trial does not begin on time is deemed

to have waived the right to move for dismissal of the in

formation or indictment if he or she does not file that

motion prior to trial or entry of a guilty plea. The District

Court reasoned: “[I]f you can waive [the Act] by inaction,

i. e., not raising the motion to dismiss, you can waive

affirmatively, knowledgeably, intelligently your right to do

so, your right to a speedy trial and your right to make a

motion to dismiss for the speedy trial.” App. 73. The court

told petitioner that it was “prepared to start . . . trial right

away,” ibid., but that if a continuance was granted, peti

tioner might have to wait some time for trial because the

court had a “fairly big cas[e] . . . which [wa]s set to take

eight months for trial.” “[I]f that [trial] starts before you

start,” the court warned, “you may have to wait until that

is done.” Id., at 74.

The District Court then produced a preprinted form—

apparently of its own devising—captioned “Waiver of

Speedy Trial Rights.” Id., at 79. The court led petitioner

and his counsel through the form, and both signed it.

Among other things, the form stated: “I wish to waive my

rights to a speedy trial . . . under the Speedy Trial Act of

1974 (18 U. S. C. §3161 et seq.), under the Rules of this

Circuit and under the Speedy Trial Plan adopted by this

Court.” Ibid. The form also stated: “I have been advised

and fully understand that . . . I also waive any and all

rights to make a motion to dismiss the indictment . . .

against me for failure of the Court to give me a speedy

trial and that I waive all of such rights to a speedy trial

and to make such a motion or motions for all time.” Ibid.

After the form was signed, petitioner’s counsel requested

that a further status conference be scheduled for January

31, 1997, and the court agreed. Id., at 77.

At the January 31 status conference, petitioner sought

4 ZEDNER v. UNITED STATES

Opinion of the Court

yet another continuance “to tap . . . the proper channels to

authenticate [the] bonds.” Id., at 81. Petitioner and the

Government emphasized that this request raised no issue

under the Act because petitioner had “waived for all time,”

though the Government suggested that it “would like to

try the case sometime in 1997.” Ibid. After a brief discus

sion between the court and petitioner’s counsel about the

need to investigate the authenticity of what seemed such

obviously fake bonds, the court offered to set trial for May

5, 1997. Id., at 86. The court admonished petitioner’s

counsel to “[g]et to work” and noted: “This [case] is a year

old. That’s enough for a criminal case.” Id., at 86, 85.

Nevertheless, apparently satisfied with petitioner’s waiver

“for all time,” the District Court made no mention of the

Act and did not make any findings to support exclusion of

the 91 days between January 31 and petitioner’s next

court appearance on May 2, 1997 (1997 continuance).

The four years that followed saw a variety of proceed

ings in petitioner’s case, but no trial. See 401 F. 3d, at 40–

41. Counsel sought to be relieved because petitioner

insisted that he argue that the bonds were genuine, and

the court ultimately granted counsel’s request to with

draw. At the court’s suggestion, petitioner was examined

by a psychiatrist, who determined that petitioner was

competent to stand trial. Petitioner then asked to proceed

pro se and sought to serve subpoenas on, among others,

the President, the Chairman of the Federal Reserve

Board, the Attorney General, the Secretary of State, the

late Chinese leader Chiang Kai-shek, and “ ‘The Treasury

Department of Treasury International Corporation.’ ” Id.,

at 40; App. 129. After a year of quashed subpoenas, the

District Court set the case for trial, only to conclude on the

morning of jury selection that it had to inquire once again

into petitioner’s competency. The court dismissed the jury

panel, found petitioner incompetent, and committed him

to the custody of the Attorney General for hospitalization

Cite as: 547 U. S. ____ (2006) 5

Opinion of the Court

and treatment. On interlocutory appeal, however, the

Court of Appeals vacated that order and remanded for

further hearings. In July and August 2000, the District

Court held those hearings and received further briefing on

the competency issue.

On March 7, 2001, while the competency issue remained

under submission, petitioner moved to dismiss the indict

ment for failure to comply with the Act. The District

Court denied the motion on the ground that petitioner had

waived his Speedy Trial Act rights “for all time,” mention

ing in passing that the case was complex. Id., at 128–129.

In the same order, the court found petitioner incompetent.

Id., at 135. That latter determination was upheld on

interlocutory appeal, and petitioner was committed for

evaluation. After several months of hospitalization, peti

tioner was found to be delusional but competent to stand

trial, and he was released.

Finally, on April 7, 2003, more than seven years after

petitioner was indicted, his trial began. The jury found

petitioner guilty on six counts of attempting to defraud a

financial institution,1 and the court sentenced him to 63

months of imprisonment.

The Court of Appeals affirmed the judgment of convic

tion.2 Acknowledging that “a defendant’s waiver of rights

under the Speedy Trial Act may be ineffective” because of

the public interest served by compliance with the Act, the

Court of Appeals found an exception for situations “ ‘when

defendant’s conduct causes or contributes to a period of

delay.’ ” 401 F. 3d, at 43–44 (quoting United States v.

Gambino, 59 F. 3d 353, 360 (CA2 1995)). “[D]oubt[ing]

——————

1 The Government dismissed the other counts before trial.

2 The Court of Appeals ultimately remanded the case for resentencing

in light of United States v. Booker, 543 U. S. 220 (2005). That issue is

not before us, though we note that the District Court has indicated it

would impose the same 63-month sentence if the defendant is produced

for resentencing. No. 96–CR–285 (TCP) (EDNY, Oct. 27, 2005).

6 ZEDNER v. UNITED STATES

Opinion of the Court

that the public interest in expeditious prosecution would

be served by a rule that allows defendants to request a

delay and then protest the grant of their request,” the

Court of Appeals held that petitioner would not be heard

to complain of the 91-day delay in early 1997. 401 F. 3d,

at 45. The Court of Appeals went on to suggest that there

“can be no doubt that the district court could have prop

erly excluded this period of time based on the ends of

justice” in light of the complexity of the case and defense

counsel’s request for additional time to prepare. Ibid.

We granted certiorari to resolve the disagreement

among the Courts of Appeals on the standard for analyz

ing whether a defendant has made an effective waiver of

rights under the Act. 546 U. S. ___ (2006).

II

As noted above, the Speedy Trial Act generally requires

a trial to begin within 70 days of the filing of an informa

tion or indictment or the defendant’s initial appearance,

18 U. S. C. §3161(c)(1), but the Act recognizes that crimi

nal cases vary widely and that there are valid reasons for

greater delay in particular cases. To provide the neces

sary flexibility, the Act includes a long and detailed list of

periods of delay that are excluded in computing the time

within which trial must start. See §3161(h). For example,

the Act excludes “delay resulting from other proceedings

concerning the defendant,” §3161(h)(1), “delay resulting

from the absence or unavailability of the defendant or an

essential witness,” §3161(h)(3), “delay resulting from the

fact that the defendant is mentally incompetent or physi

cally unable to stand trial,” §3161(h)(4), and “[a] reason

able period of delay when the defendant is joined for trial

with a codefendant as to whom the time for trial has not

run and no motion for severance has been granted,”

§3161(h)(7).

Much of the Act’s flexibility is furnished by §3161(h)(8),

Cite as: 547 U. S. ____ (2006) 7

Opinion of the Court

which governs ends-of-justice continuances, and which we

set out in relevant part in the margin.3 This provision

permits a district court to grant a continuance and to

exclude the resulting delay if the court, after considering

certain factors, makes on-the-record findings that the ends

of justice served by granting the continuance outweigh the

——————

3 Title 18 U. S. C. §3161(h)(8) provides: “(A) Any period of delay re

sulting from a continuance granted by any judge on his own motion or

at the request of the defendant or his counsel or at the request of the

attorney for the Government, if the judge granted such continuance 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. No such period of delay resulting from a continuance

granted by the court in accordance with this paragraph shall be exclud

able under this subsection unless the court sets forth, in the record of

the case, either orally or in writing, its reasons for finding that the ends

of justice served by the granting of such continuance outweigh the best

interests of the public and the defendant in a speedy trial.

“(B) The factors, among others, which a judge shall consider in

determining whether to grant a continuance under subparagraph (A) of

this paragraph in any case are as follows:

“(i) Whether the failure to grant such a continuance in the proceed

ing would be likely to make a continuation of such proceeding impossi

ble, or result in a miscarriage of justice.

“(ii) Whether the case is so unusual or so complex, due to the number

of defendants, the nature of the prosecution, or the existence of novel

questions of fact or law, that it is unreasonable to expect adequate

preparation for pretrial proceedings or for the trial itself within the

time limits established by this section.

. . . . .

“(iv) Whether the failure to grant such a continuance in a case

which, taken as a whole, is not so unusual or so complex as to fall

within clause (ii), would deny the defendant reasonable time to obtain

counsel, would unreasonably deny the defendant or the Government

continuity of counsel, or would deny counsel for the defendant or the

attorney for the Government the reasonable time necessary for effective

preparation, taking into account the exercise of due diligence.

“(C) No continuance under subparagraph (A) of this paragraph shall

be granted because of general congestion of the court’s calendar, or lack

of diligent preparation or failure to obtain available witnesses on the

part of the attorney for the Government.”

8 ZEDNER v. UNITED STATES

Opinion of the Court

public’s and defendant’s interests in a speedy trial. This

provision gives the district court discretion—within limits

and subject to specific procedures—to accommodate lim

ited delays for case-specific needs.

To promote compliance with its requirements, the Act

contains enforcement and sanctions provisions. If a trial

does not begin on time, the defendant may move, before

the start of trial or the entry of a guilty plea, to dismiss

the charges, and if a meritorious and timely motion to

dismiss is filed, the district court must dismiss the

charges, though it may choose whether to dismiss with or

without prejudice. In making that choice, the court must

take into account, among other things, “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 [the Act] and on the administration

of justice.” §3162(a)(2).

This scheme is designed to promote compliance with the

Act without needlessly subverting important criminal

prosecutions. The more severe sanction (dismissal with

prejudice) is available for use where appropriate, and the

knowledge that a violation could potentially result in the

imposition of this sanction gives the prosecution a power

ful incentive to be careful about compliance. The less

severe sanction (dismissal without prejudice) lets the court

avoid unduly impairing the enforcement of federal crimi

nal laws—though even this sanction imposes some costs

on the prosecution and the court, which further encour

ages compliance. When an indictment is dismissed with

out prejudice, the prosecutor may of course seek—and in

the great majority of cases will be able to obtain—a new

indictment, for even if “the period prescribed by the appli

cable statute of limitations has expired, a new indictment

may be returned . . . within six calendar months of the

date of the dismissal.” §3288.

With this background in mind, we turn to the questions

Cite as: 547 U. S. ____ (2006) 9

Opinion of the Court

presented by the unusual procedures followed in this case.

III

Petitioner contends, and the Government does not seri

ously dispute, that a defendant may not prospectively

waive the application of the Act.4 We agree.

A

1

As our discussion above suggests, the Speedy Trial Act

comprehensively regulates the time within which a trial

must begin. Section 3161(h) specifies in detail numerous

categories of delay that are not counted in applying the

Act’s deadlines. Conspicuously, §3161(h) has no provision

excluding periods of delay during which a defendant

waives the application of the Act, and it is apparent from

the terms of the Act that this omission was a considered

one. Instead of simply allowing defendants to opt out of

the Act, the Act demands that defense continuance re

quests fit within one of the specific exclusions set out in

subsection (h). Subsection (h)(8), which permits ends-of

justice continuances, was plainly meant to cover many of

these requests. Among the factors that a district court

must consider in deciding whether to grant an ends-of

justice continuance are a defendant’s need for “reasonable

time to obtain counsel,” “continuity of counsel,” and “effec

tive preparation” of counsel. §3161(h)(8)(B)(iv). If a de

fendant could simply waive the application of the Act

whenever he or she wanted more time, no defendant

would ever need to put such considerations before the

court under the rubric of an ends-of-justice exclusion.

The purposes of the Act also cut against exclusion on the

grounds of mere consent or waiver. If the Act were de

signed solely to protect a defendant’s right to a speedy

——————

4 We left this question open in New York v. Hill, 528 U. S. 110, 117, n.

2 (2000).

10 ZEDNER v. UNITED STATES

Opinion of the Court

trial, it would make sense to allow a defendant to waive

the application of the Act. But the Act was designed with

the public interest firmly in mind. See, e.g., 18 U. S. C.

§3161(h)(8)(A) (to exclude delay resulting from a continu

ance—even one “granted . . . at the request of the defen

dant”—the district court must find “that the ends of jus

tice served . . . outweigh the best interest of the public and

the defendant in a speedy trial” (emphasis added)). That

public interest cannot be served, the Act recognizes, if

defendants may opt out of the Act entirely.

2

This interpretation is entirely in accord with the Act’s

legislative history. As both the 1974 House and Senate

Reports illustrate, the Act was designed not just to benefit

defendants but also to serve the public interest by, among

other things, reducing defendants’ opportunity to commit

crimes while on pretrial release and preventing extended

pretrial delay from impairing the deterrent effect of pun

ishment. See S. Rep. No. 93–1021, pp. 6–8 (citing “bail

problems,” offenses committed during pretrial release, and

the “seriously undermined . . . deterrent value of the

criminal process” as “the debilitating effect[s] of court

delay upon our criminal justice system”); H. R. Rep. No.

93–1508, p. 8 (“The purpose of this bill is to assist in re

ducing crime and the danger of recidivism by requiring

speedy trials . . .”). The Senate Report accompanying the

1979 amendments to the Act put an even finer point on it:

“[T]he Act seeks to protect and promote speedy trial inter

ests that go beyond the rights of the defendant; although

the Sixth Amendment recognizes a societal interest in

prompt dispositions, it primarily safeguards the defen

dant’s speedy trial right—which may or may not be in

accord with society’s.” S. Rep. No. 96–212, p. 29; see also

id., at 6; H. R. Rep. No. 96–390, p. 3 (1979). Because

defendants may be content to remain on pretrial release,

Cite as: 547 U. S. ____ (2006) 11

Opinion of the Court

and indeed may welcome delay, it is unsurprising that

Congress refrained from empowering defendants to make

prospective waivers of the Act’s application. See S. Rep.

No. 96–212, at 29 (“Because of the Act’s emphasis on that

societal right, a defendant ought not be permitted to waive

rights that are not his or hers alone to relinquish”).

B

The District Court reasoned that 18 U. S. C. §3162(a)(2)

supports the conclusion that a defendant may prospec

tively waive the strictures of the Act. This provision

states that “[f]ailure of the defendant to move for dis

missal prior to trial or entry of a plea of guilty or nolo

contendere shall constitute a waiver of the right to dis

missal under this section.” Because this provision in effect

allows a defendant to waive a completed violation of the

Act (by declining to move to dismiss before the start of

trial or the entry of a guilty plea), it follows, so the District

Court’s reasoning went, that a defendant should be al

lowed to make a prospective waiver. We disagree.

It is significant that §3162(a)(2) makes no mention of

prospective waivers, and there is no reason to think that

Congress wanted to treat prospective and retrospective

waivers similarly. Allowing prospective waivers would

seriously undermine the Act because there are many

cases—like the case at hand—in which the prosecution,

the defense, and the court would all be happy to opt out of

the Act, to the detriment of the public interest. The sort of

retrospective waiver allowed by §3161(a)(2) does not pose

a comparable danger because the prosecution and the

court cannot know until the trial actually starts or the

guilty plea is actually entered whether the defendant will

forgo moving to dismiss. As a consequence, the prosecu

tion and the court retain a strong incentive to make sure

that the trial begins on time.

Instead of granting broad opt-out rights, §3162(a)(2)

12 ZEDNER v. UNITED STATES

Opinion of the Court

serves two unrelated purposes. First, §3162(a)(2) assigns

the role of spotting violations of the Act to defendants—for

the obvious reason that they have the greatest incentive to

perform this task.5 Second, by requiring that a defendant

move before the trial starts or a guilty plea is entered,

§3162(a)(2) both limits the effects of a dismissal with-

out prejudice (by ensuring that an expensive and

time-consuming trial will not be mooted by a late-filed

motion under the Act) and prevents undue defense

gamesmanship.6

For these reasons, we reject the District Court’s reliance

on §3162(a)(2) and conclude a defendant may not prospec

tively waive the application of the Act. It follows that

petitioner’s waiver “for all time” was ineffective. We

therefore turn to the Government’s alternative grounds in

support of the result below.

IV

A

The Government contends that because “petitioner’s

express waiver induced the district court to grant a con

tinuance without making an express ends-of-justice find

——————

5 The possibility of obtaining a dismissal with prejudice plainly gives

a defendant a strong incentive to police compliance, and even if a case

is dismissed without prejudice, a defendant may derive some benefit.

For example, the time and energy that the prosecution must expend in

connection with obtaining a new indictment may be time and energy

that the prosecution cannot devote to the preparation of its case.

6 As noted, in order to promote compliance with the Act, Congress set

the minimum permissible penalty at a level that would impose some

costs on the prosecution and the court without unduly interfering with

the enforcement of the criminal laws. By specifying that a defendant

may not move for dismissal once the trial has commenced or a plea has

been entered, the amount of inconvenience resulting from a dismissal

without prejudice is limited, and defendants are restricted in their

ability to use such a motion for strategic purposes. For example,

defendants cannot wait to see how a trial is going (or how it comes out)

before moving to dismiss.

Cite as: 547 U. S. ____ (2006) 13

Opinion of the Court

ing . . ., basic principles of judicial estoppel preclude peti

tioner from enjoying the benefit of the continuance, but

then challenging the lack of a finding.” Brief for United

States 10. In this case, however, we see no basis for apply

ing the doctrine of judicial estoppel.

As this Court has explained:

“ ‘[W]here a party assumes a certain position in a

legal proceeding, and succeeds in maintaining that

position, he may not thereafter, simply because his in

terests have changed, assume a contrary position, es

pecially if it be to the prejudice of the party who has

acquiesced in the position formerly taken by him.’

Davis v. Wakelee, 156 U. S. 680, 689 (1895). This rule,

known as judicial estoppel, ‘generally prevents a party

from prevailing in one phase of a case on an argument

and then relying on a contradictory argument to prevail

in another phase.’ Pegram v. Herdrich, 530 U. S. 211,

227, n. 8 (2000).” New Hampshire v. Maine, 532 U. S.

742, 749 (2001).

Although this estoppel doctrine is equitable and thus

cannot be reduced to a precise formula or test,

“several factors typically inform the decision whether

to apply the doctrine in a particular case: First, a

party’s later position must be clearly inconsistent with

its earlier position. Second, courts regularly inquire

whether the party has succeeded in persuading a

court to accept that party’s earlier position . . . . A

third consideration is whether the party seeking to

assert an inconsistent position would derive an unfair

advantage or impose an unfair detriment on the op

posing party if not estopped.” Id., at 750–751 (cita

tions and internal quotation marks omitted).

In applying this doctrine to the present case, we must

first identify the “position” of petitioner’s that the Gov

14 ZEDNER v. UNITED STATES

Opinion of the Court

ernment seeks to enforce. There are three possibilities: (1)

petitioner’s promise not to move for dismissal under

§3162(a)(2), (2) petitioner’s (implied) position that waivers

of the Act are enforceable, and (3) petitioner’s claim that

counsel needed additional time to research the authentic

ity of the bonds. None of these gives rise to an estoppel.

First, we are unwilling to recognize an estoppel based on

petitioner’s promise not to move for dismissal because

doing so would entirely swallow the Act’s no-waiver policy.

We see little difference between granting a defendant’s

request for a continuance in exchange for a promise not to

move for dismissal and permitting a prospective waiver,

and as we hold above, prospective waivers are inconsistent

with the Act.

Second, petitioner’s (mistaken) agreement that Speedy

Trial Act waivers are valid also does not provide a ground

for estoppel. Petitioner did not “succee[d] in persuading”

the District Court to accept the proposition that prospec

tive waivers of Speedy Trial Act rights are valid. On the

contrary, it was the District Court that requested the

waiver and produced the form for petitioner to sign. And

while the other relevant factors (clear inconsistency and

unfair advantage or detriment) might in isolation support

the Government, we think they do not predominate where,

as here, the Government itself accepted the District

Court’s interpretation without objection.

Finally, petitioner’s representation to the District Court

at the January 31 status conference that a continuance

was needed to gather evidence of the bonds’ authenticity

does not support the Government’s estoppel argument

because the position that petitioner took then was not

“clearly inconsistent” with the position that he now takes

in seeking dismissal of the indictment. This would be a

different case if petitioner had succeeded in persuading

the District Court at the January 31 status conference

that the factual predicate for a statutorily authorized

Cite as: 547 U. S. ____ (2006) 15

Opinion of the Court

exclusion of delay could be established—for example, if

defense counsel had obtained a continuance only by falsely

representing that he was in the midst of working with an

expert who might authenticate the bonds. In fact, how

ever, the discussion at the January 31 status conference

did not focus on the requirements of the Act. Rather, the

court and the parties proceeded on the assumption that

the court’s waiver form was valid and that the Act could

simply be disregarded. Nothing in the discussion at the

conference suggests that the question presented by the

defense continuance request was viewed as anything other

than a case-management question that lay entirely within

the scope of the District Court’s discretion. Under these

circumstances, the best understanding of the position

taken by petitioner’s attorney at the January 31 status

conference is that granting the requested continuance

would represent a sound exercise of the trial judge’s dis

cretion in managing its calendar. This position was not

“clearly inconsistent” with petitioner’s later position that

the continuance was not permissible under the terms of

the Act. Accordingly, we hold that petitioner is not es

topped from challenging the excludability under the Act of

the 1997 continuance.

B

While conceding that the District Court “never made an

express finding on the record” about the ends-of-justice

balance, Brief for United States 30, the Government ar

gues that such an express finding did not need to be en

tered contemporaneously—and could be supplied on re

mand—because, given the circumstances in 1997, the

ends-of-justice balance in fact supported the 1997 continu

ance. We reject this argument. In the first place, the Act

requires express findings, and in the second place, it does

not permit those findings to be made on remand as the

Government proposes.

16 ZEDNER v. UNITED STATES

Opinion of the Court

The Act requires that when a district court grants an

ends-of-justice continuance, it must “se[t] forth, in the

record of the case, either orally or in writing, its reasons”

for finding that the ends of justice are served and they

outweigh other interests. 18 U. S. C. §3161(h)(8)(A).

Although the Act is clear that the findings must be made,

if only in the judge’s mind, before granting the continu

ance (the continuance can only be “granted . . . on the

basis of [the court’s] findings”), the Act is ambiguous on

precisely when those findings must be “se[t] forth, in the

record of the case.” However this ambiguity is resolved, at

the very least the Act implies that those findings must be

put on the record by the time a district court rules on a

defendant’s motion to dismiss under §3162(a)(2).7 In

ruling on a defendant’s motion to dismiss, the court must

tally the unexcluded days. This, in turn, requires identify

ing the excluded days. But §3161(h)(8)(A) is explicit that

“[n]o . . . period of delay resulting from a continuance

granted by the court in accordance with this paragraph

shall be excludable . . . unless the court sets forth . . . its

reasons for [its] finding[s].” Thus, without on-the-record

findings, there can be no exclusion under §3161(h)(8).

Here, the District Court set forth no such findings at the

January 31 status conference, and §3161(h)(8)(A) is not

satisfied by the District Court’s passing reference to the

case’s complexity in its ruling on petitioner’s motion to

dismiss. Therefore, the 1997 continuance is not excluded

from the speedy trial clock.

The Government suggests that this error, stemming as

it does from the District Court’s technical failure to make

an express finding, may be regarded as harmless. Brief

for United States 31, n. 8. Harmless-error review under

Federal Rule of Criminal Procedure 52(a) presumptively

——————

7 The best practice, of course, is for a district court to put its findings

on the record at or near the time when it grants the continuance.

Cite as: 547 U. S. ____ (2006) 17

Opinion of the Court

applies to “all errors where a proper objection is made,”

Neder v. United States, 527 U. S. 1, 7 (1999), and we have

required “strong support” to find an implied repeal of Rule

52, United States v. Vonn, 535 U. S. 55, 65 (2002). We

conclude, however, that the provisions of the Act provide

such support here.

The relevant provisions of the Act are unequivocal. If a

defendant pleads not guilty, the trial “shall commence”

within 70 days “from the filing date (and making public) of

the information or indictment” or from the defendant’s

initial appearance, whichever is later. §3161(c)(1) (em

phasis added). Delay resulting from an ends-of-justice

continuance is excluded from this time period, but “[n]o

such period of delay . . . shall be excludable under this

subsection unless the court sets forth, in the record of the

case, either orally or in writing, its reasons for finding that

the ends of justice served by the granting of such continu

ance outweigh the best interests of the public and the

defendant in a speedy trial.” §3161(h)(8)(A) (emphasis

added). When a trial is not commenced within the pre

scribed period of time, “the information or indictment

shall be dismissed on motion of the defendant.”

§3162(a)(2) (emphasis added). A straightforward reading

of these provisions leads to the conclusion that if a judge

fails to make the requisite findings regarding the need for

an ends-of-justice continuance, the delay resulting from

the continuance must be counted, and if as a result the

trial does not begin on time, the indictment or information

must be dismissed. The argument that the District

Court’s failure to make the prescribed findings may be

excused as harmless error is hard to square with the Act’s

categorical terms. See Alabama v. Bozeman, 533 U. S. 146,

153–154 (2001) (no “ ‘harmless’ ” or “‘technical’” violations of

the Interstate Agreement on Detainers’ “antishuttling”

provision in light of its “absolute language”).

Applying the harmless-error rule would also tend to

18 ZEDNER v. UNITED STATES

Opinion of the Court

undermine the detailed requirements of the provisions

regulating ends-of-justice continuances. The exclusion of

delay resulting from an ends-of-justice continuance is the

most open-ended type of exclusion recognized under the

Act and, in allowing district courts to grant such continu

ances, Congress clearly meant to give district judges a

measure of flexibility in accommodating unusual, complex,

and difficult cases. But it is equally clear that Congress,

knowing that the many sound grounds for granting ends-

of-justice continuances could not be rigidly structured, saw

a danger that such continuances could get out of hand and

subvert the Act’s detailed scheme. The strategy of

§3161(h)(8), then, is to counteract substantive open

endedness with procedural strictness. This provision

demands on-the-record findings and specifies in some

detail certain factors that a judge must consider in making

those findings. Excusing the failure to make these find

ings as harmless error would be inconsistent with the

strategy embodied in §3161(h). Such an approach would

almost always lead to a finding of harmless error because

the simple failure to make a record of this sort is unlikely

to affect the defendant’s rights. We thus conclude that

when a district court makes no findings on the record in

support of an §3161(h)(8) continuance, harmless-error

review is not appropriate.

V

We hold that that the 91-day continuance granted on

January 31 was not excluded from petitioner’s speedy trial

clock. Because this continuance by itself exceeded the

maximum 70-day delay provided in §3161(c)(1), the Act

was violated, and we need not address whether any other

periods of delay during petitioner’s case were not exclud

able. The sanction for a violation of the Act is dismissal,

but we leave it to the District Court to determine in the

first instance whether dismissal should be with or without

Cite as: 547 U. S. ____ (2006) 19

Opinion of the Court

prejudice. See §3162(a)(2). The judgment of the Court of

Appeals is therefore reversed, and the case is remanded

for further proceedings consistent with this opinion.

It is so ordered.

Cite as: 547 U. S. ____ (2006) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–5992

_________________

JACOB ZEDNER, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 5, 2006]

JUSTICE SCALIA, concurring in part and concurring in

the judgment.

I concur in the opinion of the Court with the exception of

its discussion of legislative history in Part III–A–2. For

reasons I have expressed elsewhere, I believe that the only

language that constitutes “a Law” within the meaning of

the Bicameralism and Presentment Clause of Article I, §7,

and hence the only language adopted in a fashion that

entitles it to our attention, is the text of the enacted stat

ute. See, e.g., Conroy v. Aniskoff, 507 U. S. 511, 518–528

(1993) (SCALIA, J., concurring in judgment). Here, the

Court looks to legislative history even though the remain

der of its opinion amply establishes that the Speedy Trial

Act is unambiguous. The Act’s language rejects the possi

bility of a prospective waiver, and even expresses the very

point that the Court relies on legislative history to sup

port—that the Act protects the interests of the public as

well as those of the defendant. See ante, at 9–10 (citing 18

U. S. C. §3161(h)(8)(A)). Use of legislative history in this

context thus conflicts not just with my own views but with

this Court’s repeated statements that when the language

of the statute is plain, legislative history is irrelevant.

See, e.g., United States v. Gonzales, 520 U. S. 1, 6 (1997).

“We have stated time and again that courts must presume

that a legislature says in a statute what it means and

means in a statute what it says there. When the words of

2 ZEDNER v. UNITED STATES

Opinion of SCALIA, J.

a statute are unambiguous, then, this first canon is also

the last: the judicial inquiry is complete.” Connecticut

Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992)

(citations and internal quotation marks omitted).

It may seem that there is no harm in using committee

reports and other such sources when they are merely in

accord with the plain meaning of the Act. But this sort of

intellectual piling-on has addictive consequences. To

begin with, it accustoms us to believing that what is said

by a single person in a floor debate or by a committee

report represents the view of Congress as a whole—so that

we sometimes even will say (when referring to a floor

statement and committee report) that “Congress has

expressed” thus-and-so. See, e.g., Conroy, supra, at 516–

517. There is no basis either in law or in reality for this

naive belief. Moreover, if legislative history is relevant

when it confirms the plain meaning of the statutory text,

it should also be relevant when it contradicts the plain

meaning, thus rendering what is plain ambiguous. Be

cause the use of legislative history is illegitimate and ill

advised in the interpretation of any statute—and espe

cially a statute that is clear on its face—I do not join this

portion of the Court’s opinion.