What is the test for dismissing an indictment under the Speedy Trial Act?

The Speedy Trial Act provides that trial shall commence no later than seventy days from the filing of the indictment or the defendant's first appearance in court, whichever is later, unless time is excluded from the calculation for various reasons such as filing and deciding pretrial motions. 18 U.S.C. 3161(c)(1) (timeline); id. 3161(h) (list of excludable periods of delay). The Speedy Trial Act mandates dismissal of the indictment upon defendant's motion if the seventy day limitations period is exceeded. 18 U.S.C. 3162(a)(2). See also United States v. Morales, 875 F.2d 775, 777 (9th Cir. 1989). The failure of the defendant to move for dismissal prior to trial constitutes a waiver of the right to dismissal under this section. 18 U.S.C. 3162(a)(2). See also United States v. Medina, 524 F.3d 974, 980 (9th Cir. 2008) (citing 18 U.S.C. 3162(a)(2)) ("If the defendant is not brought to trial within the 70-day period mandated by the Speedy Trial Act (subtracting all properly excludable periods of delay), then the defendant may move for a dismissal of the indictment.").

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