Unlucky Day

United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009) (Calabaresi, Katzmann, CJJ, Eaton, J CIT)

Damon Lucky appealed the denial of his Speedy Trial Act (STA) dismissal motion. The circuit, finding only 69 days of nonexcluded time, one short of the magic number, affirmed.

Lucky’s argument was that there was no proper STA exclusion during the 70 days from May 20, 2005, to July 28, 2005, because the district court excluded the time from the STA calculations without making an “ends of justice” finding. The government countered that the time had been properly excluded to give the parties time for plea negotiations, and that plea negotiations are automatically excluded as “other proceedings concerning the defendant” under § 3161(h)(1) of the STA, with no “ends of justice” finding required.

While two other circuits have so held, the Second Circuit is “not yet convinced” by this argument. The phrase “other proceedings” typically refers to “formal judicial processes,” and the statute itself includes as examples “formal processes over which the parties have no direct control.” Plea negotiations, by contrast, are controlled by the parties, not the court, and thus do not “fit comfortably into the ‘other proceedings’ section.”

Ultimately, however, the court ducked the question. It identified a single day during the 70-day period upon which the district court held a status conference. Since a status conference is definitely a “proceeding,” and is “very similar” to the examples listed in § 3161(h)(1), that day was automatically covered by the district court’s exclusion order, and did not require an “ends of justice” finding. This rendered Lucky’s “plea negotiations” argument moot – the court’s thoughtful analysis is thus merely dicta – since with that single day excluded, Lucky could identify only 69 nonexcluded days. Accordingly, his conviction was affirmed.