Speedy-Trial-Act-violation

QUESTION PRESENTED The district court violated the Speedy Trial Act in this case, as found by the Third Circuit, when the court, faced with its own calendar congestion, retroactively granted a moot government continuance request, excluding thirty-two days that bore no relationship to the government’s lapsed request. Despite the flagrant nature of this violation, the Third Circuit did not remand the case for dismissal as the Speedy Trial Act requires. Instead, the Court applied plain error review, pursuant to Rule 52 of the Federal Rules of Criminal Procedure, because Mr. Greer’s Speedy Trial Act motion to dismiss, which asserted that the district court failed to bring him to trial within the Act’s seventy-day limit, did not specifically identify the particular offending continuance. The Third Circuit found that the issue was therefore not preserved and that Mr. Greer failed to satisfy the final prong of plain error review because he did not show how the Speedy Trial Act violation affected the outcome of his trial. In Zedner v. United States, 547 U.S. 489, 507 (2006), however, this Court held that the Speedy Trial Act has “implicit[ly] repeal[ed]” Rule 52 for Speedy Trial Act violations. As this Court recognized, the Act expressly provides that “when a trial is not commenced within the prescribed period of time, ‘the information or indictment shall be dismissed on motion of the defendant.”” Jd. at 508 (quoting 18 U.S.C. § 3161(a)(2) (emphasis added)). The question presented is: What is the correct standard of review for a Speedy Trial Act violation where a motion to dismiss under the Act was filed, but the particular time period addressed on appeal was not specifically identified in the motion. The courts of appeals are divided on this issue. Four of the circuits, the D.C., First, Second, and Tenth hold that such claims are waived and are therefore not reviewable. Two circuits, the Third and Sixth, hold that such claims are merely forfeited and that plain error review applies, and four other circuits, the Fifth, Eighth, Ninth and Eleventh have applied plain error review even when no Speedy Trial Act motion to dismiss was filed at all. The question is whether any i of these approaches are correct or whether they are all wrong under the terms of the Act and Zedner. This case also presents a sentencing issue that has divided the circuits: Whether the categorical approach applies in determining whether an offense has an element of force and thereby qualifies as a “crime of Violence” for purposes of 18 U.S.C. § 924(c)(3)(A). The Third Circuit, in conflict with the holdings of at least ten other courts of appeals and the position of the government itself, has held that the categorical approach does not apply to this determination. i