United States v. Michael Napadow

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1920

U NITED STATES OF A MERICA,

Plaintiff-Appellee,

v.

M ICHAEL N APADOW ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:08-cr-00328-1—Harry D. Leinenweber, Judge.

A RGUED D ECEMBER 4, 2009—D ECIDED F EBRUARY 23, 2010

Before P OSNER, R IPPLE and W OOD , Circuit Judges.

R IPPLE, Circuit Judge. On April 17, 2008, a federal grand

jury returned a six-count indictment charging Michael

Napadow with knowingly devising a scheme to defraud

and obtain money from home inspectors by selling fraud-

ulent insurance. The indictment contained two counts

of wire fraud, in violation of 18 U.S.C. § 1343 (Counts

One and Three), and four counts of mail fraud, in viola-

tion of 18 U.S.C. § 1341 (Counts Two, Four, Five and

2 No. 09-1920

Six). The district court denied his motion to dismiss

the indictment for lack of a speedy trial. Mr. Napadow

now seeks review of that decision. Because we con-

clude that the district court was correct, we affirm

the judgment.

I

BACKGROUND

Our decision rests on a close examination of the

district court’s consideration of Mr. Napadow’s motion

to dismiss the indictment. 1 We therefore set forth, in

some detail, the court’s treatment of the issue during the

course of the proceedings in that court.

Mr. Napadow first appeared before the district court on

May 6, 2008. He entered a plea of not guilty. During that

appearance, the district court asked the defense how

much time it would need to file pretrial motions. Defense

counsel requested that the deadline be set for May 27,

2008. The district court set that date as the deadline and

scheduled a status conference for June 10, 2008. The

district court then asked, “Any objection if I exclude time

1

During proceedings before the district court, Mr. Napadow

raised and preserved adequately the issue of whether his

right to a speedy trial, under the Speedy Trial Act, had been

violated. See Tr. at 8-9, Aug. 19, 2008; see also United States v.

Gearhart, 576 F.3d 459, 462 (7th Cir. 2009) (noting that a criminal

defendant must move to dismiss the indictment in order to

preserve a Speedy Trial Act challenge).

No. 09-1920 3

for pretrial motions?” Tr. at 3, May 6, 2008. Defense

counsel stated, “Your Honor, Mr. Napadow has asked me

to object and he has asked me to assert his Speedy Trial

rights.” Id. The district court then stated, “Objection

overruled. Time will be excluded for purposes of prepara-

tion and consideration of pretrial motions.” Id. That

same day, the district court entered a minute entry

that stated, “Status hearing set for 6/10/2008 at 9:00 a.m.

Enter excludable delay in the interest of justice to

begin 5/6/2008 and end 6/10/2008 pursuant to

18:3161(h)(8)(A)(B).” R.7.

Neither party filed a pretrial motion. On Tuesday,

June 10, 2008, the parties appeared for the status confer-

ence. The Government indicated that discovery had

been exchanged. Defense counsel then stated, “Mr.

Napadow advises me he does not anticipate he will

plead guilty in this case. He has asked me to request a

trial date, and also has asked me to object to the exclu-

sion of any time.” Tr. at 2, June 10, 2008. The district

court then asked if the parties were ready to begin trial

the following Monday. Id. Defense counsel stated, “Not

quite that soon,” but Mr. Napadow interjected, “I am

ready.” Id. at 3. The Government said that, in order to

coordinate out of town witnesses’ schedules, it would

need at least two months to prepare for trial. The district

court then proposed August 18, 2008. Defense counsel

informed the court that it had another trial scheduled

for that date. The district court then said, “Well, since

your client wants a trial, let’s leave it on the 18th. If

your other case goes, then we will have to try it after

you are finished.” Id. The district court also scheduled

4 No. 09-1920

a status conference for July 29, 2008. The court did not

verbally exclude time. Id. Nevertheless, later that same

day, the district court entered a minute entry reflecting

the scheduling of the trial date and conference. R.8. The

minute entry also stated, “ENter [sic] excludable delay

in the interest of justice to begin 6/10/2008 and end

8/18/2008 pursuant to 18:3161(h)(8)(A)(B).” Id.

At the July 29 conference, defense counsel indicated

that Mr. Napadow might plead guilty, and the Govern-

ment asked if the plea hearing could occur within the

next week. The following was said:

The Clerk: If I need to set the plea, just let me

know, we will go from there.

[The Government]: Okay.

[Defense Counsel]: Thank you, your Honor.

[The Government]: And may time be excluded

until that next date?

The Court: I think it is excluded until the trial date.

[The Government]: Okay.

The Court: All right.

[Defense Counsel]: Thank you.

[The Government]: Thank you, your Honor.

The Defendant: I have a question.

The Court: Talk to your lawyer.

The Defendant: What is this excluded stuff?

[Defense Counsel]: Time has already been ex-

cluded.

No. 09-1920 5

The Defendant: For what?

[Defense Counsel]: Until the trial date, August

18th.

The Defendant: For what? Why?

[Defense Counsel]: I don’t have the transcript in

front of me right now. I can’t answer that. I can get

the transcripts if you want and tell you why.

The Defendant: That was never brought up in the

other cases that—in the other two, in the other

two hearings.

[Defense counsel]: I am not sure we need to raise

that right now. I don’t have the transcripts here

but I can get them.

The Defendant: Do you know why you excluded

that time, your Honor?

The Court: Excluded time through the trial date?

The Defendant: Yes.

The Court: Probably because of continuity of

counsel. Also, nobody was available earlier than

that. I don’t have the record in front of me.

The Defendant: Can I object to that?

The Court: Time was excluded on June 10th to

enable the parties to file pretrial motions, there

apparently were none. This was probably the

first date that the lawyers were available.

The Defendant: I just want to—

[Defense Counsel]: I will talk to you.

6 No. 09-1920

The Defendant: Okay.

[Defense Counsel]: Thank you, your Honor.

[The Government]: Thank you.

(Proceedings concluded.)

Tr. at 3-5, July 29, 2008. Later that day, the district court

entered a minute entry reflecting that the status hearing

was held and stating, “Enter excludable delay in the

interest of justice to begin 7/29/2008 pursuant to

18:3161(h)(8)(A)(B).” R.9.

Plea negotiations broke down and the Government

requested a pretrial conference. The parties appeared on

August 6, 2008, and the Government sought a 30 day

continuance to allow it additional time to prepare. Tr. at 2,

Aug. 6, 2008. The district court stated that its calendar

was full and, after some discussion about scheduling,

the following was said:

The Court: Well, I don’t know what else to do,

otherwise you are going to go over until next year,

and I would assume that that is not okay with—

well, I don’t know what the defendant’s position is.

[Defense counsel]: Your Honor, if your Honor

would recall, since Mr. Napadow’s initial appear-

ance before your Honor he has insisted on a speedy

trial.

The Court: In fact, last time I think he raised the

question of a speedy trial.

[Defense counsel]: Yes.

The Court: Then I think we have to go ahead.

No. 09-1920 7

Id. at 4. The parties agreed that trial would begin on

August 19 instead of the 18. Id. Later that day, the

district court entered a minute entry reflecting that

the hearing had occurred. R.10. The minute entry said

nothing about excludable time.

On August 18, 2008, the Government filed a motion to

dismiss Count Six of the indictment. R.12. The following

day, on August 19, while discussing pretrial matters,

the district court asked if there were any objections to

the motion, heard that there were none from Mr.

Napadow and verbally granted the motion, dismissing

Count Six. See Tr. at 6-7, Aug. 19, 2008.2

Also on August 19, 2008, before the jury was brought

in for voir dire, the following was said in open court,

[Defense Counsel]: A moment ago Mr. Napadow

insisted that he would address your Honor and

I told him he shouldn’t do that, especially in

front of the jury, so I asked for a side bar.

The Defendant: I had asked him to file this motion

under the Speedy Trial Act because the way

I understand the Act, if I don’t motion for it, I lose

my rights, and I don’t want to lose any rights.

The Court: I think we have gone over this. Let me

just see what the—let me see this here for a sec-

ond. My recollection is that we excluded time for a

2

The district court also granted the motion and dismissed

Count Six of the indictment in the post-sentencing Judgment.

See R.42.

8 No. 09-1920

variety of purposes during the course of the case.

The motion is denied.

Id. at 8-9.3 The trial then began and lasted for two days.

On August 20, 2008, the jury found Mr. Napadow guilty

on all five counts. On March 5, 2009, the district court

sentenced Mr. Napadow to 60 months’ imprisonment. See

Tr. at 29, Mar. 5, 2009. Mr. Napadow now appeals the

denial of his motion to dismiss for the alleged Speedy

Trial Act violation.

II

DISCUSSION

We review de novo a denial of a motion to dismiss

under the Speedy Trial Act when the calculation of time

is at issue. See United States v. Rollins, 544 F.3d 820, 828-29

(7th Cir. 2008).

The Speedy Trial Act mandates that criminal trials

shall be commenced within 70 days of the issuance of an

indictment or a defendant’s first appearance before a

judicial officer, whichever occurs later. See 18 U.S.C.

§ 3161(c)(1). If the defendant is not brought to trial within

70 days, “the information or indictment shall be dis-

missed on motion of the defendant.” 18 U.S.C. § 3162(a)(2).

Dismissal may be with or without prejudice. Id.; see

also United States v. Taylor, 487 U.S. 326, 336-37, 342-43

(1988).

3

Apparently, the motion never was made part of the record.

See Appellee’s Br. 7 n.3.

No. 09-1920 9

The Act is designed to preserve the defendant’s right to

a speedy trial, as guaranteed by Amendment VI of the

Constitution, and “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 punishment.” Zedner v. United States, 547 U.S.

489, 501 (2006).

To provide the necessary flexibility to accommodate

pretrial proceedings that result in justifiable delay, the

Act excludes from the 70-day clock certain periods of time.

See 18 U.S.C. § 3161(h)(1)-(8).4 Two particular exclusions

are relevant to this case: the pretrial motion exclusion,

see id. § 3161(h)(1)(D),5 and the ends-of-justice exclusion,

4

The Speedy Trial Act was amended effective October 13, 2008.

See Pub. L. No. 110-406, § 13, 122 Stat. 4291 (2008). The effect of

that amendment was, in relevant part, recodification of sub-

section (F) of 18 U.S.C. § 3161(h)(1) as subsection (D) and

recodification of subsection (8) of § 3161(h) as subsection (7).

Except where noted, all citations in this decision refer to

the version of the Act as it is codified in the 2009 Supplement

to the United States Code.

5

Time shall be excluded, “resulting from other proceedings

concerning the defendant, including but not limited to . . . (D)

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)(1)(D).

10 No. 09-1920

see id. § 3161(h)(7)(A).6

6

According to § 3161(h)(7):

(A) Any period of delay resulting 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 excludable under this subsec-

tion 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 continu-

ance in the proceeding would be likely to make

a continuation of such proceeding impossible,

or result in a miscarriage of justice.

(ii) Whether the case is so unusual or so com-

plex, due to the number of defendants, the

nature of the prosecution, or the existence of

novel questions of fact or law, that it is unrea-

sonable to expect adequate preparation for pre-

(continued...)

No. 09-1920 11

The parties agree that the speedy trial clock began to

run on May 6, 2008, when Mr. Napadow first appeared

before the district court. See 18 U.S.C. § 3161(c)(1). Between

6

(...continued)

trial proceedings or for the trial itself with-

in the time limits established by this section.

(iii) Whether, in a case in which arrest precedes

indictment, delay in the filing of the indictment

is caused because the arrest occurs at a time

such that it is unreasonable to expect return

and filing of the indictment within the period

specified in section 3161(b), or because the

facts upon which the grand jury must base

its determination are unusual or complex.

(iv) Whether the failure to grant such a contin-

uance 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 reason-

able time to obtain counsel, would unreason-

ably deny the defendant or the Government

continuity of counsel, or would deny counsel

for the defendant or the attorney for the Gov-

ernment 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 conges-

tion of the court’s calendar, or lack of diligent prepara-

tion or failure to obtain available witnesses on the part

of the attorney for the Government.

18 U.S.C. § 3161(h)(7).

12 No. 09-1920

May 6 and August 19, the first day of trial when

Mr. Napadow moved to dismiss the indictment, 105 days

elapsed. Thus, the central inquiry is how many days

were excludable from those 105 days.

A.

The pretrial motion exclusion applies whenever a

pretrial motion is filed and, with certain exceptions not

applicable here, excludes the entire period of time from

filing to the disposition of such motion. See Henderson v.

United States, 476 U.S. 321, 330-31 (1986); United States v.

Pansier, 576 F.3d 726, 731-32 (7th Cir. 2009). Additionally,

we have held that the time needed to prepare pretrial

motions is excludable. See United States v. Montoya, 827

F.2d 143, 153 (7th Cir. 1987) (“[T]ime consumed in the

preparation of a pretrial motion must be excluded—

provided that the judge has expressly granted a party

time for that purpose. Even when motions are not

actually filed in the allotted time, the amount of time

granted by the district judge for their preparation and

submission is excludable.” (internal quotation marks

and citations omitted, emphasis in original)).7

The parties also agree that 21 days were excludable

between May 6 and May 27 because, at the request of the

defense, the district court excluded that period to afford

7

We are aware that the Supreme Court of the United States

has granted certiorari in United States v. Bloate, 534 F.3d 893 (8th

Cir. 2008), cert. granted, 129 S. Ct. 1984 (2009), and will con-

sider this rule.

No. 09-1920 13

the parties adequate time to prepare pretrial motions.

See Montoya, 827 F.2d at 153 (describing the pretrial

motion preparation exclusion). However, Mr. Napadow

contends that, because no motions were actually filed

on May 27, the 14 days between that date and the next

conference on June 10 were improperly excluded.

The Government contends that the 14 days were

excludable because the district court granted that time

for the preparation, filing and consideration of pretrial

motions.

We conclude that the entire period from May 6 to

June 10, totaling 35 days, is excludable under the pretrial

motion exclusion. See 18 U.S.C. § 3161(h)(1)(D). As we

have noted, Mr. Napadow readily concedes that the

period of time leading up to the May 27 filing deadline

was excludable because of his representation to the

district court that he intended to file pretrial motions

during that period. See Montoya, 827 F.2d at 153 (“Even

when motions are not actually filed in the allotted time,

the amount of time granted by the district judge for

their preparation and submission is excludable.”

(emphasis in original)). A fair reading of the transcript

of the May 6 hearing makes it clear that the district

court set the next status conference for June 10 in order

to afford adequate opportunity to consider the position

of the parties on the motions that it expected to receive

in light of the defense’s representation. This was a prac-

tical, common-sense way of proceeding. Certainly, if

a motion had been filed, the court would have been

justified in taking that time to consider the motion and

prepare for the June 10 status conference. See Henderson,

476 U.S. at 330-31. “The provisions of the Act are

14 No. 09-1920

designed to exclude all time that is consumed in placing

the trial court in a position to dispose of a motion.” Id.

at 331. Cf. United States v. Baskin-Bey, 45 F.3d 200, 204 (7th

Cir. 1995) (“[I]t is unfair of [a defendant] to ask that the

trial date be delayed to suit her, implicitly agree to the

government’s request that time be excluded because of

her request, and then try to sandbag the government

by insisting that the time be counted against the speedy

trial clock.”); United States v. Garrett, 45 F.3d 1135, 1138

(7th Cir. 1995) (“If [the defendants] believed this period

to be too long, or if the defendants did not intend to file

anything during this time, it was incumbent upon

them to point this out to the district court.”).8

In sum, we believe that Mr. Napadow’s general asser-

tion of his rights under the Act must be assessed in light

of his specific representations to the court with respect

to his plans for pretrial motions. His assertion of speedy

trial rights is qualified by the application of the

pretrial motion exclusion.9

8

See also United States v. Oberoi, 547 F.3d 436, 449 (2d Cir. 2008)

(citing with approval the view that whether motions are

actually filed during the pretrial motion preparation exclusion

is unimportant); United States v. Mejia, 82 F.3d 1032, 1035-36

(11th Cir. 1996) (same).

9

The minute entry of May 6 purported to exempt all the time

until June 10 per the ends-of-justice exception. However, the

district court never articulated its ends-of-justice findings

with respect to the 14 days between May 27 and June 10. As

we hold later in this opinion, such a minute entry, without

(continued...)

No. 09-1920 15

B.

The ends-of-justice provision excludes “[a]ny period of

delay resulting from a continuance . . . 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.” 18 U.S.C. § 3161(h)(7)(A); see also

Zedner, 547 U.S. at 506-07. “Among the factors that a dis-

trict 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 ‘effective preparation’ of counsel.” Zedner, 547

U.S. at 500 (citing § 3161(h)(8)(B)(iv), now codified as

§ 3161(h)(7)(B)(iv)). No time shall be excluded pursuant

to the ends-of-justice provision “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 provi-

sion applies. See 18 U.S.C. § (h)(7)(A). “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.” Zedner,

547 U.S. at 508. However, the district court need not

explain its findings contemporaneously with its decision

to exclude time. “[A]t the very least . . . [the] findings must

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

9

(...continued)

more, is an insufficient statement of reasons to support an

application of the ends-of-justice exception.

16 No. 09-1920

on . . . [the] motion to dismiss.” See Zedner, 547 U.S. at 506-

07; see also United States v. Rollins, 544 F.3d 820, 830 (7th Cir.

2008); United States v. Larson, 417 F.3d 741, 746 (7th Cir.

2005); United States v. Turner, 203 F.3d 1010, 1017 (7th Cir.

2000). When the district court makes its findings, the

Speedy Trial Act does not require the court “to cite . . .

sections [of the Act] or to track the statutory language in a

lengthy legal opinion,” but rather to make findings

“sufficiently specific to justify a continuance[] and comport

with the purposes of the Act.” United States v. Jean, 25 F.3d

588, 594 (7th Cir. 1994) (internal quotation marks and

citations omitted). “The requirement that the district

court make clear on the record its reasons for granting an

ends-of-justice continuance serves two core purposes. It

both ensures the district court considers the relevant

factors and provides this court with an adequate record to

review.” United States v. Toombs, 574 F.3d 1262, 1269 (10th

Cir. 2009) (internal citations omitted).

We conclude that the 69 days, from June 10 to August 18,

were excludable pursuant to the Act’s ends-of-justice

exclusion. The district court excluded this period of time

in the minute entry issued on June 10. Later, the

district court explained that it had excluded that time

“[p]robably because of continuity of counsel” and “nobody

was available earlier than that” and, finally, “[t]his

was probably the first date that the lawyers were avail-

able.” Tr. at 4-5, July 29, 2008. Mr. Napadow contends

that the district court’s explanation was too speculative to

No. 09-1920 17

satisfy the Act’s requirement of on-the-record findings.1 0

We cannot accept this contention. Counsel told the

district court that more time was needed to prepare for

trial, and, on that representation, the court granted the

continuance. This sequence of events, followed by the

court’s later explanation, sufficiently identified the ap-

plicable continuity of counsel factor under the ends-of-

justice exclusion. See Jean, 25 F.3d at 594. When “ ‘facts have

been presented to the court and the court has acted on

them, it is not necessary to articulate those same facts in

a continuance order.’ ” Id. (quoting United States v.

Wiehoff, 748 F.2d 1158, 1160 (7th Cir. 1984)). This sequence

of events makes it clear that the district court accepted

counsel’s representation that more time was needed and,

consequently, granted the continuance. The district

court’s later confirmation of that reason comports with the

record. Notably, Mr. Napadow’s own counsel’s unavail-

ability was, in part, a cause for the trial delay. Cf.

Baskin-Bey, 45 F.3d at 203-04 (finding a district court’s

reasons for the exclusion to be clear from the record).

While, of course, the record would have been more clear

if the district court had identified precisely why the

ends of justice served by granting the exclusion out-

weighed the best interest of the public and Mr. Napadow

in a speedy trial, a comparison of the district court’s

10

Mr. Napadow does not contend that the district court erred

by articulating its findings several weeks after it had first

purported to exclude this time on June 10. Nor could he. See

Zedner v. United States, 547 U.S. 489, 506-07 (2006); United

States v. Turner, 203 F.3d 1010, 1017 (7th Cir. 2000).

18 No. 09-1920

actual statements with the circumstances of the pretrial

proceedings provide an adequate basis to justify the

69 day exclusion.11

We do note, however, that the minute entries, by them-

selves, are clearly unsatisfactory explanations of the

district court’s ends-of-justice determinations. As we

have just observed, we need not rely on them for resolu-

tion of this appeal. Nevertheless, we note that such pro

forma statements, standing alone, would not comply

adequately with the statute.

Finally, the one day between August 18 and 19 was

excludable because the Government filed a motion to

dismiss Count 6 of the indictment on August 18, and the

motion was decided on August 19. Pursuant to the ex-

clusion afforded by § 3161(h)(1)(D), that day was

excludable. See Henderson, 476 U.S. at 330-31.1 2

11

Our sister circuits have followed similar approaches. See, e.g.,

United States v. Pakala, 568 F.3d 47, 60 (1st Cir. 2009); United

States v. Gamboa, 439 F.3d 796, 803 (8th Cir. 2006); United States

v. Hope, 714 F.2d 1084, 1087 (11th Cir. 1983). But cf. United States

v. Toombs, 574 F.3d 1262, 1268-69 (10th Cir. 2009) (determining

that the district court gave an inadequate ends-of-justice

explanation).

12

We note that, even if the Supreme Court ultimately decides

that the circuit’s current rule on excluding time for the prepara-

tion of pretrial motions is incorrect, the exclusion of the 69 days

from June 10 to August 18, pursuant to the ends-of-justice

exclusion, with the additional one day from August 18 to 19

tacked on, pursuant to the pretrial motion exclusion, would

ensure compliance with the Act in this case.

No. 09-1920 19

Conclusion

The district court correctly determined that there had

been no violation of the Speedy Trial Act. The judgment

of the district court is therefore affirmed.

A FFIRMED

2-23-10