Is a motion to dismiss for lack of a speedy trial excludable?

On July 1, 1976, appellants' motion to dismiss for lack of a speedy trial was pending and was not finally decided by the court until August 4, 1976. Delay occasioned by pendency Sub judice of appellants' speedy trial motion is not chargeable against appellants because, as observed, in United States v. Didier, 542 F.2d 1182, 1188 (2d Cir. 1977), to do so would " improperly penalize defendants for their invocation of speedy trial rules and run counter to the purposes of those rules." However, on August 10, appellants appealed the trial court's denial of their speedy trial motion, which appeal, according to the docket entry on September 24, 1976, was dismissed upon the government's motion for lack of finality. It would seem to us that this period must be excluded because it would otherwise "improperly penalize" the government for the ill-advised action of appellants. On December 3, appellants requested an adjournment beginning on December 6 and continuing through January 18, 1977, and, therefore, that 44-day period is also excludable. Thus, of the 202 days from July 1, 1976 through January 18, 1977, 112 days are not excludable.