United States v. Bert: The Second Circuit’s Newfound Need for Speed?

December 16, 2015  |  The Insider: White Collar Defense and Securities Enforcement

In September 2015, a divided panel of the Second Circuit took the drastic step of ordering the reversal of defendant Raheem Bert’s conviction for firearms offenses and the dismissal of his indictment with prejudice due to an inadvertent violation of the Speedy Trial Act.* The panel’s decision, written by Circuit Judge Rosemary S. Pooler and joined by Circuit Judge Peter W. Hall—over a dissent by Circuit Judge Dennis Jacobs—explained this result by referencing the need to vindicate the Speedy Trial Act’s “purpose of expeditiously bringing criminal cases to trial,” and found that “[b]arring reprosecution in this case will have a more positive and substantial impact upon the administration of justice—and most certainly on improved administration of the Speedy Trial Act—than would permitting the prosecution to proceed.” [...]

* Update: On February 9, 2016, subsequent to the publication of this blog post, the Second Circuit withdrew its original opinion in United States v. Bert and issued a new opinion. Just as in the original opinion, Judge Pooler wrote for herself and for Judge Hall, while Judge Jacobs dissented. In this new opinion, however, instead of taking what my original post called the “drastic step” of ordering the reversal of Bert’s conviction and the dismissal of his indictment with prejudice, the majority took the more modest step of remanding Bert’s case so that the district court could make additional factual findings regarding the speedy trial delay. Nevertheless, as Judge Jacobs highlights in his dissent, in many respects, the majority’s instructions to the district court to make additional factual findings go beyond what had previously been legally required, and warrant close attention by counsel in future cases.

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