Can a judge grant a continuance based on the ends of justice?

And while the required findings need not be entered at the same time as the grant of the continuance, see United States v. Brooks, 697 F.2d 517, 522 (3d Cir.1982), and cases cited there, here no findings were made until the judge denied Janik's motion to dismiss the case for violation of the Speedy Trial Act. That may well be too late. If the judge gives no indication that a continuance was granted upon a balancing of the factors specified by the Speedy Trial Act until asked to dismiss the indictment for violation of the Act, the danger is great that every continuance will be converted retroactively into a continuance creating excludable time, which is clearly not the intent of the Act.

While we do not suggest that it occurred here, the procedure followed in this case does contain the risk that a district judge in a particular case may simply rationalize his action long after the fact, in order to cure an unwitting violation of the Act. Moreover, had the district judge in this case stated at the time he initially set the trial date, before the speedy trial clock had run, that he was granting an ends-of-justice continuance, the parties would have been on notice and the whole Speedy Trial Act problem might have been avoided. As appellants point out, the Act itself requires consultation with counsel before setting the trial date. 18 U.S.C. Sec. 3161(a). If defense counsel had been prepared to go to trial in late July, as they now claim, they could have informed the judge that he was mistaken in concluding that they needed more time. If instead they had in fact needed the additional time to prepare adequately, in light of the unusual or complex nature of the case, it is similarly unlikely that any problem would have arisen. See 18 U.S.C. Sec. 3161(h)(8)(B)(ii). As matters stand, however, during the more than three-month gap between the initial setting of the trial date and the recording of findings neither side had reason to know that an ends-of-justice continuance had been granted. The July 6 Memorandum Decision and Order makes no reference to a continuance based on the ends of justice. Nor had any party requested that such a continuance be granted at that time. Cf. United States v. Rush, 738 F.2d 497, 507 (1st Cir.1984); United States v. Mitchell, 723 F.2d 1040, 1042-44 (1st Cir.1980). And the May 29 order of excludable time, highlighted by the government at oral argument, concerns only time already spent in preparation; it does not refer to the need for additional time beyond May 29. Defense counsel's consequent inability to respond until after the fact to the district court's assertion that they needed more time renders problematic the task of evaluating the court's ends-of-justice findings.

Accordingly, we conclude that time may not be excluded based on the ends-of-justice unless the district court indicates at the time it grants the continuance that it is doing so upon a balancing of the factors specified by section 3161(h)(8). ⁵ We also adopt the position taken in other circuits that the precise reasons for the decision need not be entered on the record at the time the continuance is granted. See United States v. Brooks, supra, 697 F.2d at 522 (citing cases). A prospective statement that time will be excluded based on the ends of justice serves to assure the reviewing court that the required balancing was done at the outset. Moreover, it puts defense counsel on notice that the speedy trial clock has been stopped. If for any reason counsel believes that this is inappropriate, an objection may be raised and a record made at that time. In any event, a later recording of the precise findings required

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