United States v. Gottesfeld

18 F.4th 1

UNITED STATES of America, Appellee,

v.Martin GOTTESFELD, Defendant, Appellant.

Nos. 18-1669

19-1042

19-1043

19-1107

United States Court of Appeals, First Circuit.

November 5, 2021

Michael Pabian, with whom Brandon Sample was on brief, for appellant.

Javier A. Sinha, Attorney, Criminal Division, Appellate Section, with whom Andrew E. Lelling, United States Attorney, District of Massachusetts, Donald C. Lockhart, Assistant United States Attorney, Seth B. Kosto, Assistant United States Attorney, Brian C. Rabbitt, Acting Assistant Attorney General, and Robert A. Zink, Acting Deputy Assistant Attorney General, were on brief, for appellee.

Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

In March 2014, Martin Gottesfeld and others committed a "Distributed Denial of Service" cyberattack against Boston Children's Hospital and Wayside Youth and Family Support Network, causing both to lose their internet capabilities for three to four weeks. Gottesfeld targeted Boston Children's and Wayside because of their role in caring for Justina Pelletier, a child whose medical condition and treatment were at the center of a custody dispute that received national attention. Gottesfeld publicly admitted responsibility for the attacks. He was subsequently charged with intentionally causing damage to a protected computer, 18 U.S.C. § 1030(a)(5)(A), and conspiring to do the same, id. § 371. After an eight-day trial, Gottesfeld was convicted on both counts and sentenced to 121 months' imprisonment, to be followed by three years of supervised release.

I.

A.

We begin with Gottesfeld's argument that his indictment should be dismissed under the Speedy Trial Act, 18 U.S.C. §§ 3161 – 3174. In pertinent part, the Speedy Trial Act provides that "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date [of his arrest]." Id. § 3161(b). An indictment filed after the thirty-day period has expired must be dismissed. Id. § 3162(a)(1). But certain periods of delay are not counted toward the thirty-day limit. See id. § 3161(h). Two such exclusions are relevant here.

First, the Act excludes delay resulting from so-called "ends-of-justice continuances." Zedner v. United States, 547 U.S. 489, 498–99, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (describing what is now 18 U.S.C. § 3161(h)(7)(A) ). These are "continuance[s] granted by any judge ... on the basis of his findings that the ends of justice served by taking such action outweigh the best interests of the public and the defendant in a speedy trial," as long as the reasons supporting such findings are "set forth[ ] in the record of the case, either orally or in writing." 18 U.S.C. § 3161(h)(7)(A). Second, the Act also does not count time "resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Id. § 3161(h)(1)(D).

In this case, Gottesfeld was arrested on February 17, 2016 and indicted 246 days later, on October 19, 2016. It is undisputed that twenty-six of these days were not excludable under the Speedy Trial Act. The remainder of the delay was initially excluded by the district court as resulting from six ends-of-justice continuances granted by the district court without any contemporaneous objection by Gottesfeld. When Gottesfeld subsequently moved to dismiss the indictment under the Speedy Trial Act, the district court clarified that the same periods of delay were also excludable in part as resulting from the district court's consideration of each of the six predicate motions to continue. See id. § 3161(h)(1)(D).

On appeal, Gottesfeld challenges the exclusion of the time during which six motions to continue were pending and the time covered by three of the ends-of-justice continuances. We address each in turn.

1.

Gottesfeld focuses first on the time during which the six motions to continue were pending before the district court. Gottesfeld argues that the time during which these motions were pending was not properly excludable because the motions were not "pretrial motions" within the meaning of section 3161(h)(1)(D). The parties dispute whether Gottesfeld has preserved this argument. While a defendant cannot prospectively waive the application of the Speedy Trial Act, Zedner, 547 U.S. at 503, 126 S.Ct. 1976, a defendant can waive or forfeit a claim of error in the application of the Act by failing to timely raise the claim in the district court, United States v. Valdivia, 680 F.3d 33, 41 (1st Cir. 2012). And a defendant's request for a continuance or his acquiescence in a request can be considered in weighing the propriety of the continuance. United States v. Balsam, 203 F.3d 72, 79–80 (1st Cir. 2000).

In this instance, we need not decide what standard of review applies because we see no error, plain or otherwise, in the district court's decision to exclude time under section 3161(h)(1)(D). Indeed, we have previously treated motions to continue as "pretrial motions" under that statutory provision. See United States v. Richardson, 421 F.3d 17, 27–31 (1st Cir. 2005) (excluding time between the filing of the government's motion to continue and the district court's effective denial of that motion).

Gottesfeld insists that this case is distinguishable, pointing to a provision of the district court's Plan for the Prompt Disposition of Criminal Cases that requires all pre-indictment motions to continue to be filed in what is known as the "miscellaneous business docket." Because any such motion is not filed directly in the docket for a defendant's criminal case, Gottesfeld argues, it cannot be considered a "pretrial motion" within the meaning of section 3161(h)(1)(D). We reject this formalistic argument. We have historically adopted a functional rather than formalistic approach to determining what constitutes a "pretrial motion." See Richardson, 421 F.3d at 28–29 (" ‘We have read the term "pretrial motion" broadly to encompass all manner of motions’ for purposes of tolling the speedy trial clock, ‘ranging from informal requests for laboratory reports to "implied" requests for a new trial date.’ " (quoting United States v. Barnes, 159 F.3d 4, 11 (1st Cir. 1998) )); see, e.g., United States v. Santiago-Becerril, 130 F.3d 11, 17 (1st Cir. 1997) (construing counsel's notification of availability as an implied motion for a new trial date and therefore treating it as a "pretrial motion" for speedy-trial purposes). And we do not see how continuances granted by way of the miscellaneous business docket would "affect[ ] the course of trial" any differently than they would if granted on a criminal docket. Barnes, 159 F.3d at 11.¹

2.

Gottesfeld separately advances three arguments challenging the exclusion of sixty-two days resulting from three of the six ends-of-justice continuances. He contends that: (1) the judge who granted the continuances did not make "findings that the ends of justice served by taking such action outweigh[ed] the best interest of the public and the defendant in a speedy trial," as required by section 3161(h)(7)(A) ; (2) the court's reasons for making such findings were never "set[ ] forth[ ] in the record of the case," as required by the same provision; and (3) the continuances were granted on an impermissible basis.

The first two of these arguments largely hinge on our construction of the law, and were raised in the district court, so we will consider them de novo. See United States v. Irizarry-Colón, 848 F.3d 61, 65 (1st Cir. 2017). Gottesfeld's third argument, however, appears for the first time on appeal. Although we have held that "exclusions of time not specifically challenged in the district court are waived on appeal," United States v. Laureano-Pérez, 797 F.3d 45, 57 (1st Cir. 2015), we have never definitively decided the applicable standard of review where the defendant challenges the same exclusions under a new theory. Without adequate briefing by the parties as to the standard of review, we assume favorably to Gottesfeld that plain-error review applies to the specific arguments he failed to raise below. See Valdivia, 680 F.3d at 41–42 (noting that "there [was] a strong basis for finding [an] argument waived" where the defendant did not present it to the district court in his motion to dismiss under the Speedy Trial Act, but assuming that plain error review applied in any event).

a.

Delay resulting from a continuance is excluded only if the judge before granting the continuance finds (even if only in his or her mind) that the ends of justice served by the continuance outweigh the best interests of the defendant and the public in speed. Zedner, 547 U.S. at 506, 126 S.Ct. 1976. Additionally, specific facts supporting that determination need be apparent from the order itself or the record. Id. at 495, 505–07, 126 S.Ct. 1976. On the other hand, "it is not necessary for the court to articulate the basic facts" underlying its decision to grant an ends-of-justice continuance "when they are obvious and set forth in" the motion to continue. United States v. Pakala, 568 F.3d 47, 60 (1st Cir. 2009) (quoting United States v. Rush, 738 F.2d 497, 507 (1st Cir. 1984) ).

Here, the relevant motions asserted that the ends of justice supported the continuances under section 3161(h)(7)(A) because the parties were awaiting a detention decision by the magistrate judge and could not "conclude their discussions of a possible plea agreement and information" without it. By granting each motion, the judge presiding over the miscellaneous business docket "necessarily adopted" these grounds, Pakala, 568 F.3d at 60, which supports the conclusion that she was "persuad[ed] ... that the factual predicate for a statutorily authorized exclusion of delay could be established," id. (quoting Zedner, 547 U.S. at 505, 126 S.Ct. 1976 ). No more was required at the time the challenged continuances were granted.²

b.

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