ZEDNER v. UNITED STATES

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489 OCTOBER TERM, 2005
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ZEDNER v. UNITED STATES
certiorari to the united states court of appeals for
the second circuit
No. 05–5992. Argued April 18, 2006—Decided June 5, 2006
The Speedy Trial Act of 1974 (Act) generally requires a federal criminal
trial to begin within 70 days after a defendant is charged or makes an
initial appearance. 18 U. S. C. § 3161(c)(1). Recognizing that criminal
cases vary widely and that there are valid reasons for greater delay in
particular cases, the Act includes a long and detailed list of periods of
delay that are excluded in computing the time within which trial must
start. Section 3161(h)(8) permits a district court to grant a continuance
and exclude the resulting delay if it makes on-the-record findings that
the ends of justice served by granting the continuance outweigh the
public’s and defendant’s interests in a speedy trial. To promote compli
ance without needlessly subverting important criminal prosecutions, the
Act provides that, if the trial does not begin on time and the defendant
moves, before the trial’s start or entry of a guilty plea, to dismiss, the
district court must dismiss the charges, though it may choose whether
to do so with or without prejudice.
In April 1996, petitioner was indicted on charges arising from his
attempt to open accounts using counterfeit United States bonds. The
District Court granted two “ends-of-justice” continuances, see
§ 3161(h)(8). When, at a November 8 status conference, petitioner re
quested another delay to January 1997, the court suggested that peti
tioner waive the application of the Act “for all time,” and produced a
preprinted waiver form for petitioner to sign. At a January 31, 1997,
status conference, the court granted petitioner another continuance so
that he could attempt to authenticate the bonds, but made no mention
of the Act and no findings to support excluding the 91 days between
January 31 and petitioner’s next court appearance on May 2 (1997 con
tinuance). Four years later, petitioner filed a motion to dismiss the in
dictment for failure to comply with the Act, which the District Court
denied based on the waiver “for all time.” In a 2003 trial, petitioner
was convicted. The Second Circuit affirmed. Acknowledging that a
defendant’s waiver of rights under the Act may be ineffective because
of the public interest served by compliance with the Act, the court found
an exception for situations when the defendant causes or contributes to
the delay. It also suggested that the District Court could have prop
erly excluded the 91-day period based on the ends of justice, given the

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case’s complexity and the defense’s request for additional time to
prepare.
Held:
1. Because a defendant may not prospectively waive the application of
the Act, petitioner’s waiver “for all time” was ineffective. Pp. 500–503.
(a) The Act comprehensively regulates the time within which a
trial must begin. Section 3161(h), which details numerous categories
of delay that are not counted in applying the Act’s deadlines, conspicu
ously has no provision excluding periods of delay during which a defend
ant waives the Act’s application. It is apparent from the Act’s terms
that this was a considered omission. Instead of allowing defendants to
opt out, the Act demands that continuances fit within one of § 3161(h)’s
specific exclusions. In deciding whether to grant an ends-of-justice con
tinuance, a court must consider a defendant’s need for “reasonable time
to obtain counsel,” “continuity of counsel,” and “effective preparation”
of counsel. § 3161(h)(8)(B)(iv). If a defendant could simply waive the
Act’s application in order to secure more time, no defendant would ever
need to put such considerations before the court under the rubric of an
ends-of-justice exclusion. The Act’s purposes also cut against exclusion
on the grounds of mere consent or waiver. Were the Act solely de
signed to protect a defendant’s right to a speedy trial, such an applica
tion might make sense, but the Act was also designed with the public
interest firmly in mind. This interpretation is entirely in accord with
the Act’s legislative history. Pp. 500–502.
(b) This Court rejects the District Court’s reliance on § 3162(a)(2),
which provides that a defendant whose trial does not begin on time is
deemed to have waived the right to move for dismissal if that motion is
not filed prior to trial or entry of a guilty plea. That section makes no
mention of prospective waivers, and there is no reason to think that
Congress wanted to treat prospective and retrospective waivers simi
larly. Allowing prospective waivers would seriously undermine the
Act because, in many cases, the prosecution, defense, and court would
all like to opt out, to the detriment of the public interest. Section
3162(a)(2)’s retrospective waiver does not pose a comparable danger.
Because the prosecution and court cannot know until the trial starts or
the guilty plea is entered whether the defendant will forgo moving to
dismiss, they retain a strong incentive to make sure the trial begins on
time. Pp. 502–503.
2. Petitioner is not estopped from challenging the excludability under
the Act of the 1997 continuance. Factors that “typically inform the
decision whether to apply the [estoppel] doctrine in a particular case”
include (1) whether “a party’s later position [is] clearly inconsistent with

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its earlier position”; (2) “whether the party has succeeded in persuading
a court to accept that . . . earlier position”; and (3) “whether the party
seeking to assert an inconsistent position would derive an unfair advan
tage or impose an unfair detriment on the opposing party if not es
topped.” New Hampshire v. Maine, 532 U. S. 742, 750–751. None of
the three possible “positions” taken by petitioner gives rise to an estop
pel. First, recognizing an estoppel based on petitioner’s promise not to
move for dismissal under § 3162(a)(2) would entirely swallow the Act’s
no-waiver policy. Second, petitioner’s (mistaken) agreement that waiv
ers are enforceable does not provide a ground for estoppel because peti
tioner did not “succee[d] in persuading” the District Court to accept the
validity of prospective waivers. On the contrary, the District Court
requested the waiver and produced the form for petitioner to sign.
Even if the other factors favor estoppel, they do not predominate. Fi
nally, petitioner’s representation at the January 31 status conference
that a continuance was needed to gather evidence of the bonds’ authen
ticity does not support estoppel because that position was not “clearly
inconsistent” with the position that he now takes in seeking dismissal,
i. e., that delay from that continuance was not excluded under the Act.
Nothing in the discussion at the conference suggests that the question
presented by the continuance request was viewed as anything other
than a case-management question laying entirely within the District
Court’s discretion. Pp. 503–506.
3. When a district court makes no findings on the record to support a
§ 3161(h)(8) continuance, harmless-error review is not appropriate. The
Government argues that an express finding need not be entered contem
poraneously and could be supplied on remand. But the Act requires
express findings, see § 3161(h)(8)(A), and at the very least implies that
those findings must be put on the record by the time the district court
rules on the motion to dismiss. Because the District Court made no
such express findings, the 1997 continuance is not excluded from the
speedy trial clock. This error is not subject to harmless-error review.
Harmless-error review under Federal Rule of Criminal Procedure 52(a)
presumptively applies to “all errors where a proper objection is made,”
Neder v. United States, 527 U. S. 1, 7, but strong support for an implied
repeal of Rule 52(a) in this context is provided by the Act’s unequivocal
provisions, which specify that a trial “shall commence” within 70 days,
§ 3161(c)(1) (emphasis added), and that “[n]o . . . period of delay” from
an ends-of-justice continuance “shall be excludable” from the time pe
riod unless the court sets forth its reasoning, § 3161(h)(8)(A) (emphasis
added). Applying harmless-error review would also tend to undermine
the detailed requirements of the provisions regulating ends-of-justice
continuances. Pp. 506–509.

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4. Because the 91-day continuance, which was not excluded from the
speedy trial clock, exceeded the maximum 70-day delay, the Act was
violated, and there is no need to address whether other periods of delay
were not excludable. The District Court may determine in the first
instance whether the dismissal in this case should be with or without
prejudice. P. 509.
401 F. 3d 36, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ.,
joined, and in which Scalia, J., joined as to all but Part III–A–2. Scalia,
J., filed an opinion concurring in part and concurring in the judgment,
post, p. 509.
Edward S. Zas, by appointment of the Court, 546 U. S.
1167, argued the cause for petitioner. With him on the
briefs were Barry D. Leiwant and Sean Hecker.
Daryl Joseffer argued the cause for the United States.
With him on the brief were Solicitor General Clement, As
sistant Attorney General Fisher, Deputy Solicitor General
Dreeben, and Thomas E. Booth.
Justice Alito delivered the opinion of the Court.
This case requires us to consider the application of the
doctrines of waiver, judicial estoppel, and harmless error to
a violation of the Speedy Trial Act of 1974 (Speedy Trial Act
or Act), 18 U. S. C. §§ 3161–3174. The Act generally re
quires a federal criminal trial to begin within 70 days after
a defendant is charged or makes an initial appearance,
§ 3161(c)(1), but the Act contains a detailed scheme under
which certain specified periods of delay are not counted. In
this case, petitioner’s trial did not begin within 70 days of
indictment. Indeed, his trial did not commence until more
than seven years after the filing of the indictment, but peti
tioner, at the suggestion of the trial judge, signed a blanket,
prospective waiver of his rights under the Act. We address
the following questions: whether this waiver was effective;
whether petitioner is judicially estopped from challenging

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the validity of the waiver; and whether the trial judge’s fail
ure to make the findings required to exclude a period of
delay under a particular provision of the Act, § 3161(h)(8),
was harmless error.
I
In March 1996, petitioner attempted to open accounts at
seven financial institutions using counterfeit $10 million
United States bonds. The quality of the counterfeiting was,
to put it mildly, not expert. One bond purported to be is
sued by the “Ministry of Finance of U. S. A.” 401 F. 3d 36,
39 (CA2 2005) (internal quotation marks omitted). Others
contained misspelled words such as “Thunted States” and
the “Onited States” (United States), “Dhtladelphla” (Phila
delphia), “Cgicago” (Chicago), and “forevev” (forever). Id.,
at 39, n. 1 (internal quotation marks omitted). After peti
tioner presented these bonds, the Secret Service was con
tacted, and petitioner was arrested. Following arraignment
on a criminal complaint, he was released on bond.
On April 4, 1996, a grand jury in the Eastern District of
New York indicted petitioner on seven counts of attempting
to defraud a financial institution, in violation of 18 U. S. C.
§ 1344, and one count of knowingly possessing counterfeit ob
ligations of the United States, in violation of § 472. On June
26, the District Court, citing the complexity of the case,
granted what is termed an “ends-of-justice” continuance, see
§ 3161(h)(8)(B)(ii), until September 6. On September 6, the
District Court granted another continuance, this time until
November 8.
At the November 8 status conference, petitioner re
quested, without opposition from the Government, a further
adjournment to January 1997. Concerned about the diffi
culty of fitting petitioner’s trial into its heavily scheduled
calendar and the prospect that petitioner might “only waive
[the Act] for so long as it is convenient for [him] to waive,”
the District Court instructed petitioner as follows: “I think
if I’m going to give you that long an adjournment, I will

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have to take a waiver for all time.” App. 71. Petitioner’s
counsel responded that the defense would “waive for all time.
That will not be a problem. That will not be an issue in this
case.” Id., at 72.
The District Court then addressed petitioner directly and
appears to have attempted to explain the operation of a pro
vision of the Act, 18 U. S. C. § 3162(a)(2), under which a de
fendant whose trial does not begin on time is deemed to have
waived the right to move for dismissal of the information or
indictment if he or she does not file that motion prior to trial
or entry of a guilty plea. The District Court reasoned: “[I]f
you can waive [the Act] by inaction, i. e., not raising the mo
tion to dismiss, you can waive affirmatively, knowledgeably,
intelligently your right to do so, your right to a speedy trial
and your right to make a motion to dismiss for the speedy
trial.” App. 73. The court told petitioner that it was “pre
pared to start . . . trial right away,” ibid., but that if a contin
uance was granted, petitioner might have to wait some time
for trial because the court had a “fairly big cas[e] . . . which
[wa]s set to take eight months for trial.” “[I]f that [trial]
starts before you start,” the court warned, “you may have
to wait until that is done.” Id., at 74.
The District Court then produced a preprinted form—ap
parently of its own devising—captioned “Waiver of Speedy
Trial Rights.” Id., at 79. The court led petitioner and his
counsel through the form, and both signed it. Among other
things, the form stated: “I wish to waive my rights to a
speedy trial . . . under the Speedy Trial Act of 1974 (18
U. S. C. § 3161 et seq.), under the Rules of this Circuit and
under the Speedy Trial Plan adopted by this Court.” Ibid.
The form also stated: “I have been advised and fully under
stand that . . . I also waive any and all rights to make a
motion to dismiss the indictment . . . against me for failure
of the Court to give me a speedy trial and that I waive all
of such rights to a speedy trial and to make such a motion
or motions for all time.” Ibid. After the form was signed,

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petitioner’s counsel requested that a further status confer
ence be scheduled for January 31, 1997, and the court agreed.
Id., at 77.
At the January 31 status conference, petitioner sought yet
another continuance “to tap . . . the proper channels to au
thenticate [the] bonds.” Id., at 81. Petitioner and the Gov
ernment emphasized that this request raised no issue under
the Act because petitioner had “waived for all time,” though
the Government suggested that it “would like to try the case
sometime in 1997.” Ibid. After a brief discussion between
the court and petitioner’s counsel about the need to investi
gate the authenticity of what seemed such obviously fake
bonds, the court offered to set trial for May 5, 1997. Id.,
at 86. The court admonished petitioner’s counsel to “[g]et
to work” and noted: “This [case] is a year old. That’s enough
for a criminal case.” Id., at 86, 85. Nevertheless, appar
ently satisfied with petitioner’s waiver “for all time,” the
District Court made no mention of the Act and did not make
any findings to support exclusion of the 91 days between Jan
uary 31 and petitioner’s next court appearance on May 2,
1997 (1997 continuance).
The four years that followed saw a variety of proceedings
in petitioner’s case, but no trial. See 401 F. 3d, at 40–41.
Counsel sought to be relieved because petitioner insisted
that he argue that the bonds were genuine, and the court
ultimately granted counsel’s request to withdraw. At the
court’s suggestion, petitioner was examined by a psychia
trist, who determined that petitioner was competent to stand
trial. Petitioner then asked to proceed pro se and sought to
serve subpoenas on, among others, the President, the Chair
man of the Federal Reserve Board, the Attorney General,
the Secretary of State, the late Chinese leader Chiang Kai
shek, and “ ‘The Treasury Department of Treasury Interna
tional Corporation.’ ” Id., at 40; App. 129. After a year of
quashed subpoenas, the District Court set the case for trial,
only to conclude on the morning of jury selection that it had

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to inquire once again into petitioner’s competency. The
court dismissed the jury panel, found petitioner incompetent,
and committed him to the custody of the Attorney General
for hospitalization and treatment. On interlocutory appeal,
however, the Court of Appeals vacated that order and re
manded for further hearings. In July and August 2000, the
District Court held those hearings and received further
briefing on the competency issue.
On March 7, 2001, while the competency issue remained
under submission, petitioner moved to dismiss the indict
ment for failure to comply with the Act. The District Court
denied the motion on the ground that petitioner had waived
his Speedy Trial Act rights “for all time,” mentioning in
passing that the case was complex. Id., at 128–129. In the
same order, the court found petitioner incompetent. Id., at
135. That latter determination was upheld on interlocutory
appeal, and petitioner was committed for evaluation. After
several months of hospitalization, petitioner was found to be
delusional but competent to stand trial, and he was released.
Finally, on April 7, 2003, more than seven years after peti
tioner was indicted, his trial began. The jury found peti
tioner guilty on six counts of attempting to defraud a finan
cial institution,1 and the court sentenced him to 63 months
of imprisonment.
The Court of Appeals affirmed the judgment of convic
tion.2 Acknowledging that “a defendant’s waiver of rights
under the Speedy Trial Act may be ineffective” because of
the public interest served by compliance with the Act, the
Court of Appeals found an exception for situations “ ‘when
defendant’s conduct causes or contributes to a period of
1 The Government dismissed the other counts before trial.
2 The Court of Appeals ultimately remanded the case for resentencing
in light of United States v. Booker, 543 U. S. 220 (2005). That issue is not
before us, though we note that the District Court has indicated it would
impose the same 63-month sentence if the defendant is produced for resen
tencing. No. 96–CR–285 (TCP) (EDNY, Oct. 27, 2005).

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delay.’ ” 401 F. 3d, at 43–44 (quoting United States v. Gam
bino, 59 F. 3d 353, 360 (CA2 1995)). “[D]oubt[ing] that the
public interest in expeditious prosecution would be served
by a rule that allows defendants to request a delay and then
protest the grant of their request,” the Court of Appeals held
that petitioner would not be heard to complain of the 91-day
delay in early 1997. 401 F. 3d, at 45. The Court of Appeals
went on to suggest that there “can be no doubt that the dis
trict court could have properly excluded this period of time
based on the ends of justice” in light of the complexity of
the case and defense counsel’s request for additional time to
prepare. Ibid.
We granted certiorari to resolve the disagreement among
the Courts of Appeals on the standard for analyzing whether
a defendant has made an effective waiver of rights under the
Act. 546 U. S. 1085 (2006).
II
As noted above, the Speedy Trial Act generally requires a
trial to begin within 70 days of the filing of an information or
indictment or the defendant’s initial appearance, 18 U. S. C.
§ 3161(c)(1), but the Act recognizes that criminal cases vary
widely and that there are valid reasons for greater delay in
particular cases. To provide the necessary flexibility, the
Act includes a long and detailed list of periods of delay that
are excluded in computing the time within which trial must
start. See § 3161(h). For example, the Act excludes “delay
resulting from other proceedings concerning the defendant,”
§ 3161(h)(1), “delay resulting from the absence or unavailabil
ity of the defendant or an essential witness,” § 3161(h)(3)(A),
“delay resulting from the fact that the defendant is mentally
incompetent or physically unable to stand trial,” § 3161(h)(4),
and “[a] reasonable period of delay when the defendant is
joined for trial with a codefendant as to whom the time for
trial has not run and no motion for severance has been
granted,” § 3161(h)(7).

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Much of the Act’s flexibility is furnished by § 3161(h)(8),
which governs ends-of-justice continuances, and which we
set out in relevant part in the margin.3 This provision per
mits a district court to grant a continuance and to exclude
the resulting delay if the court, after considering certain fac
tors, makes on-the-record findings that the ends of justice
3 Title 18 U. S. C. § 3161(h)(8) provides:
“(A) Any period of delay resulting from a continuance granted by any
judge on his own motion or at the request of the defendant or his counsel
or at the request of the attorney for the Government, if the judge granted
such continuance on the basis of his findings that the ends of justice served
by taking such action outweigh the best interest of the public and the
defendant in a speedy trial. No such period of delay resulting from a
continuance granted by the court in accordance with this paragraph shall
be excludable under this subsection unless the court sets forth, in the
record of the case, either orally or in writing, its reasons for finding that
the ends of justice served by the granting of such continuance outweigh
the best interests of the public and the defendant in a speedy trial.
“(B) The factors, among others, which a judge shall consider in deter
mining whether to grant a continuance under subparagraph (A) of this
paragraph in any case are as follows:
“(i) Whether the failure to grant such a continuance in the proceeding
would be likely to make a continuation of such proceeding impossible, or
result in a miscarriage of justice.
“(ii) Whether the case is so unusual or so complex, due to the number
of defendants, the nature of the prosecution, or the existence of novel
questions of fact or law, that it is unreasonable to expect adequate prepa
ration for pretrial proceedings or for the trial itself within the time limits
established by this section.
. . . . .
“(iv) Whether the failure to grant such a continuance in a case which,
taken as a whole, is not so unusual or so complex as to fall within clause
(ii), would deny the defendant reasonable time to obtain counsel, would
unreasonably deny the defendant or the Government continuity of counsel,
or would deny counsel for the defendant or the attorney for the Govern
ment the reasonable time necessary for effective preparation, taking into
account the exercise of due diligence.
“(C) No continuance under subparagraph (A) of this paragraph shall be
granted because of general congestion of the court’s calendar, or lack of
diligent preparation or failure to obtain available witnesses on the part of
the attorney for the Government.”

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served by granting the continuance outweigh the public’s
and defendant’s interests in a speedy trial. This provision
gives the district court discretion—within limits and subject
to specific procedures—to accommodate limited delays for
case-specific needs.
To promote compliance with its requirements, the Act con
tains enforcement and sanctions provisions. If a trial does
not begin on time, the defendant may move, before the start
of trial or the entry of a guilty plea, to dismiss the charges,
and if a meritorious and timely motion to dismiss is filed, the
district court must dismiss the charges, though it may choose
whether to dismiss with or without prejudice. In making
that choice, the court must take into account, among other
things, “the seriousness of the offense; the facts and circum
stances of the case which led to the dismissal; and the impact
of a reprosecution on the administration of [the Act] and on
the administration of justice.” § 3162(a)(2).
This scheme is designed to promote compliance with the
Act without needlessly subverting important criminal pros
ecutions. The more severe sanction (dismissal with
prejudice) is available for use where appropriate, and the
knowledge that a violation could potentially result in the im
position of this sanction gives the prosecution a powerful
incentive to be careful about compliance. The less severe
sanction (dismissal without prejudice) lets the court avoid
unduly impairing the enforcement of federal criminal laws—
though even this sanction imposes some costs on the prosecu
tion and the court, which further encourages compliance.
When an indictment is dismissed without prejudice, the
prosecutor may of course seek—and in the great majority of
cases will be able to obtain—a new indictment, for even if
“the period prescribed by the applicable statute of limita
tions has expired, a new indictment may be returned . . .
within six calendar months of the date of the dismissal.”
§ 3288.

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With this background in mind, we turn to the questions
presented by the unusual procedures followed in this case.
III
Petitioner contends, and the Government does not seri
ously dispute, that a defendant may not prospectively waive
the application of the Act.4 We agree.
A
1
As our discussion above suggests, the Speedy Trial Act
comprehensively regulates the time within which a trial
must begin. Section 3161(h) specifies in detail numerous
categories of delay that are not counted in applying the Act’s
deadlines. Conspicuously, § 3161(h) has no provision exclud
ing periods of delay during which a defendant waives the
application of the Act, and it is apparent from the terms of
the Act that this omission was a considered one. Instead of
simply allowing defendants to opt out of the Act, the Act
demands that defense continuance requests fit within one
of the specific exclusions set out in subsection (h). Subsec
tion (h)(8), which permits ends-of-justice continuances, was
plainly meant to cover many of these requests. Among the
factors that a district court must consider in deciding
whether to grant an ends-of-justice continuance are a defend
ant’s need for “reasonable time to obtain counsel,” “con
tinuity of counsel,” and “effective preparation” of counsel.
§ 3161(h)(8)(B)(iv). If a defendant could simply waive the
application of the Act whenever he or she wanted more time,
no defendant would ever need to put such considerations
before the court under the rubric of an ends-of-justice
exclusion.
The purposes of the Act also cut against exclusion on the
grounds of mere consent or waiver. If the Act were de
4 We left this question open in New York v. Hill, 528 U. S. 110, 117,
n. 2 (2000).

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signed solely to protect a defendant’s right to a speedy trial,
it would make sense to allow a defendant to waive the appli
cation of the Act. But the Act was designed with the public
interest firmly in mind. See, e. g., § 3161(h)(8)(A) (to exclude
delay resulting from a continuance—even one “granted . . .
at the request of the defendant”—the district court must find
“that the ends of justice served . . . outweigh the best interest
of the public and the defendant in a speedy trial” (empha
sis added)). That public interest cannot be served, the Act
recognizes, if defendants may opt out of the Act entirely.
2
This interpretation is entirely in accord with the Act’s leg
islative history. As both the 1974 House and Senate Re
ports illustrate, the Act was designed not just to benefit de
fendants but also to serve the public interest by, among other
things, reducing defendants’ opportunity to commit crimes
while on pretrial release and preventing extended pretrial
delay from impairing the deterrent effect of punishment.
See S. Rep. No. 93–1021, pp. 6–8 (citing “bail problems,” of
fenses committed during pretrial release, and the “seriously
undermined . . . deterrent value of the criminal process” as
“the debilitating effect[s] of court delay upon our criminal
justice system”); H. R. Rep. No. 93–1508, p. 8 (“The purpose
of this bill is to assist in reducing crime and the danger of
recidivism by requiring speedy trials . . . ”). The Senate
Report accompanying the 1979 amendments to the Act put
an even finer point on it: “[T]he Act seeks to protect and
promote speedy trial interests that go beyond the rights of
the defendant; although the Sixth Amendment recognizes a
societal interest in prompt dispositions, it primarily safe
guards the defendant’s speedy trial right—which may or
may not be in accord with society’s.” S. Rep. No. 96–212,
p. 29; see also id., at 6; H. R. Rep. No. 96–390, p. 3 (1979).
Because defendants may be content to remain on pretrial
release, and indeed may welcome delay, it is unsurprising

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that Congress refrained from empowering defendants to
make prospective waivers of the Act’s application. See
S. Rep. No. 96–212, at 29 (“Because of the Act’s emphasis on
that societal right, a defendant ought not be permitted to
waive rights that are not his or hers alone to relinquish”).
B
The District Court reasoned that 18 U. S. C. § 3162(a)(2)
supports the conclusion that a defendant may prospectively
waive the strictures of the Act. This provision states that
“[f]ailure of the defendant to move for dismissal prior to trial
or entry of a plea of guilty or nolo contendere shall constitute
a waiver of the right to dismissal under this section.” Be
cause this provision in effect allows a defendant to waive a
completed violation of the Act (by declining to move to dis
miss before the start of trial or the entry of a guilty plea), it
follows, so the District Court’s reasoning went, that a de
fendant should be allowed to make a prospective waiver.
We disagree.
It is significant that § 3162(a)(2) makes no mention of pro
spective waivers, and there is no reason to think that Con
gress wanted to treat prospective and retrospective waivers
similarly. Allowing prospective waivers would seriously
undermine the Act because there are many cases—like the
case at hand—in which the prosecution, the defense, and the
court would all be happy to opt out of the Act, to the detri
ment of the public interest. The sort of retrospective
waiver allowed by § 3162(a)(2) does not pose a comparable
danger because the prosecution and the court cannot know
until the trial actually starts or the guilty plea is actually
entered whether the defendant will forgo moving to dismiss.
As a consequence, the prosecution and the court retain a
strong incentive to make sure that the trial begins on time.
Instead of granting broad opt-out rights, § 3162(a)(2)
serves two unrelated purposes. First, § 3162(a)(2) assigns
the role of spotting violations of the Act to defendants—for

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the obvious reason that they have the greatest incentive to
perform this task.5 Second, by requiring that a defendant
move before the trial starts or a guilty plea is entered,
§ 3162(a)(2) both limits the effects of a dismissal without
pre judice (by ensuring that an expensive and time
consuming trial will not be mooted by a late-filed motion
under the Act) and prevents undue defense gamesmanship.6
For these reasons, we reject the District Court’s reliance
on § 3162(a)(2) and conclude a defendant may not prospec
tively waive the application of the Act. It follows that peti
tioner’s waiver “for all time” was ineffective. We therefore
turn to the Government’s alternative grounds in support of
the result below.
IV
A
The Government contends that because “petitioner’s ex
press waiver induced the district court to grant a continu
ance without making an express ends-of-justice finding . . . ,
basic principles of judicial estoppel preclude petitioner from
enjoying the benefit of the continuance, but then challenging
the lack of a finding.” Brief for United States 10. In this
5 The possibility of obtaining a dismissal with prejudice plainly gives a
defendant a strong incentive to police compliance, and even if a case is
dismissed without prejudice, a defendant may derive some benefit. For
example, the time and energy that the prosecution must expend in connec
tion with obtaining a new indictment may be time and energy that the
prosecution cannot devote to the preparation of its case.
6 As noted, in order to promote compliance with the Act, Congress set
the minimum permissible penalty at a level that would impose some costs
on the prosecution and the court without unduly interfering with the en
forcement of the criminal laws. By specifying that a defendant may not
move for dismissal once the trial has commenced or a plea has been en
tered, the amount of inconvenience resulting from a dismissal without
prejudice is limited, and defendants are restricted in their ability to use
such a motion for strategic purposes. For example, defendants cannot
wait to see how a trial is going (or how it comes out) before moving to
dismiss.

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504 ZEDNER v. UNITED STATES
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case, however, we see no basis for applying the doctrine of
judicial estoppel.
As this Court has explained:
“ ‘[W]here a party assumes a certain position in a legal
proceeding, and succeeds in maintaining that position,
he may not thereafter, simply because his interests have
changed, assume a contrary position, especially if it be
to the prejudice of the party who has acquiesced in the
position formerly taken by him.’ Davis v. Wakelee, 156
U. S. 680, 689 (1895). This rule, known as judicial estop
pel, ‘generally prevents a party from prevailing in one
phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.’
Pegram v. Herdrich, 530 U. S. 211, 227, n. 8 (2000).”
New Hampshire v. Maine, 532 U. S. 742, 749 (2001).
Although this estoppel doctrine is equitable and thus cannot
be reduced to a precise formula or test,
“several factors typically inform the decision whether to
apply the doctrine in a particular case: First, a party’s
later position must be clearly inconsistent with its ear
lier position. Second, courts regularly inquire whether
the party has succeeded in persuading a court to accept
that party’s earlier position . . . . A third consideration
is whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an
unfair detriment on the opposing party if not estopped.”
Id., at 750–751 (citations and internal quotation marks
omitted).
In applying this doctrine to the present case, we must first
identify the “position” of petitioner’s that the Government
seeks to enforce. There are three possibilities: (1) petition
er’s promise not to move for dismissal under § 3162(a)(2),
(2) petitioner’s (implied) position that waivers of the Act are
enforceable, and (3) petitioner’s claim that counsel needed

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additional time to research the authenticity of the bonds.
None of these gives rise to an estoppel.
First, we are unwilling to recognize an estoppel based on
petitioner’s promise not to move for dismissal because doing
so would entirely swallow the Act’s no-waiver policy. We
see little difference between granting a defendant’s request
for a continuance in exchange for a promise not to move
for dismissal and permitting a prospective waiver, and as
we hold above, prospective waivers are inconsistent with
the Act.
Second, petitioner’s (mistaken) agreement that Speedy
Trial Act waivers are valid also does not provide a ground
for estoppel. Petitioner did not “succee[d] in persuading”
the District Court to accept the proposition that prospective
waivers of Speedy Trial Act rights are valid. On the con
trary, it was the District Court that requested the waiver
and produced the form for petitioner to sign. And while the
other relevant factors (clear inconsistency and unfair advan
tage or detriment) might in isolation support the Govern
ment, we think they do not predominate where, as here, the
Government itself accepted the District Court’s interpreta
tion without objection.
Finally, petitioner’s representation to the District Court
at the January 31 status conference that a continuance was
needed to gather evidence of the bonds’ authenticity does not
support the Government’s estoppel argument because the
position that petitioner took then was not “clearly inconsist
ent” with the position that he now takes in seeking dismissal
of the indictment. This would be a different case if peti
tioner had succeeded in persuading the District Court at the
January 31 status conference that the factual predicate for a
statutorily authorized exclusion of delay could be estab
lished—for example, if defense counsel had obtained a contin
uance only by falsely representing that he was in the midst
of working with an expert who might authenticate the bonds.
In fact, however, the discussion at the January 31 status

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506 ZEDNER v. UNITED STATES
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conference did not focus on the requirements of the Act.
Rather, the court and the parties proceeded on the assump
tion that the court’s waiver form was valid and that the Act
could simply be disregarded. Nothing in the discussion at
the conference suggests that the question presented by the
defense continuance request was viewed as anything other
than a case-management question that lay entirely within
the scope of the District Court’s discretion. Under these
circumstances, the best understanding of the position taken
by petitioner’s attorney at the January 31 status conference
is that granting the requested continuance would represent
a sound exercise of the trial judge’s discretion in managing
its calendar. This position was not “clearly inconsistent”
with petitioner’s later position that the continuance was not
permissible under the terms of the Act. Accordingly, we
hold that petitioner is not estopped from challenging the ex
cludability under the Act of the 1997 continuance.
B
While conceding that the District Court “never made an
express finding on the record” about the ends-of-justice bal
ance, Brief for United States 30, the Government argues that
such an express finding did not need to be entered contem
poraneously—and could be supplied on remand—because,
given the circumstances in 1997, the ends-of-justice balance
in fact supported the 1997 continuance. We reject this
argument. In the first place, the Act requires express
findings, and in the second place, it does not permit those
findings to be made on remand as the Government proposes.
The Act requires that when a district court grants an
ends-of-justice continuance, it must “se[t] forth, in the record
of the case, either orally or in writing, its reasons” for finding
that the ends of justice are served and they outweigh other
interests. 18 U. S. C. § 3161(h)(8)(A). Although the Act is
clear that the findings must be made, if only in the judge’s
mind, before granting the continuance (the continuance can

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only be “granted . . . on the basis of [the court’s] findings”),
the Act is ambiguous on precisely when those findings must
be “se[t] forth, in the record of the case.” However this am
biguity is resolved, at the very least the Act implies that
those findings must be put on the record by the time a dis
trict court rules on a defendant’s motion to dismiss under
§ 3162(a)(2).7 In ruling on a defendant’s motion to dismiss,
the court must tally the unexcluded days. This, in turn, re
quires identifying the excluded days. But § 3161(h)(8)(A) is
explicit that “[n]o . . . period of delay resulting from a contin
uance granted by the court in accordance with this para
graph shall be excludable . . . unless the court sets forth . . .
its reasons for [its] finding[s].” Thus, without on-the-record
findings, there can be no exclusion under § 3161(h)(8). Here,
the District Court set forth no such findings at the January
31 status conference, and § 3161(h)(8)(A) is not satisfied by
the District Court’s passing reference to the case’s complex
ity in its ruling on petitioner’s motion to dismiss. There
fore, the 1997 continuance is not excluded from the speedy
trial clock.
The Government suggests that this error, stemming as it
does from the District Court’s technical failure to make an
express finding, may be regarded as harmless. Brief for
United States 31, n. 8. Harmless-error review under Fed
eral Rule of Criminal Procedure 52(a) presumptively applies
to “all errors where a proper objection is made,” Neder v.
United States, 527 U. S. 1, 7 (1999), and we have required
“strong support” to find an implied repeal of Rule 52, United
States v. Vonn, 535 U. S. 55, 65 (2002). We conclude, how
ever, that the provisions of the Act provide such support
here.
The relevant provisions of the Act are unequivocal. If a
defendant pleads not guilty, the trial “shall commence”
within 70 days “from the filing date (and making public)
7 The best practice, of course, is for a district court to put its findings on
the record at or near the time when it grants the continuance.

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of the information or indictment” or from the defendant’s
initial appearance, whichever is later. § 3161(c)(1) (emphasis
added). Delay resulting from an ends-of-justice continuance
is excluded from this time period, but “[n]o such period of
delay . . . shall be excludable under this subsection unless
the court sets forth, in the record of the case, either orally
or in writing, its reasons for finding that the ends of justice
served by the granting of such continuance outweigh the
best interests of the public and the defendant in a speedy
trial.” § 3161(h)(8)(A) (emphasis added). When a trial is
not commenced within the prescribed period of time, “the
information or indictment shall be dismissed on motion of
the defendant.” § 3162(a)(2) (emphasis added). A straight
forward reading of these provisions leads to the conclusion
that if a judge fails to make the requisite findings regarding
the need for an ends-of-justice continuance, the delay result
ing from the continuance must be counted, and if as a result
the trial does not begin on time, the indictment or informa
tion must be dismissed. The argument that the District
Court’s failure to make the prescribed findings may be ex
cused as harmless error is hard to square with the Act’s cate
gorical terms. See Alabama v. Bozeman, 533 U. S. 146,
153–154, 155 (2001) (no “ ‘harmless’ ” or “ ‘technical’ ” viola
tions of the Interstate Agreement on Detainers’ “antishut
tling” provision in light of its “absolute language”).
Applying the harmless-error rule would also tend to
undermine the detailed requirements of the provisions regu
lating ends-of-justice continuances. The exclusion of delay
resulting from an ends-of-justice continuance is the most
open-ended type of exclusion recognized under the Act and,
in allowing district courts to grant such continuances, Con
gress clearly meant to give district judges a measure of flex
ibility in accommodating unusual, complex, and difficult
cases. But it is equally clear that Congress, knowing that
the many sound grounds for granting ends-of-justice continu
ances could not be rigidly structured, saw a danger that such

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Opinion of Scalia, J.
continuances could get out of hand and subvert the Act’s de
tailed scheme. The strategy of § 3161(h)(8), then, is to coun
teract substantive open-endedness with procedural strict
ness. This provision demands on-the-record findings and
specifies in some detail certain factors that a judge must con
sider in making those findings. Excusing the failure to
make these findings as harmless error would be inconsistent
with the strategy embodied in § 3161(h). Such an approach
would almost always lead to a finding of harmless error be
cause the simple failure to make a record of this sort is un
likely to affect the defendant’s rights. We thus conclude
that when a district court makes no findings on the record
in support of a § 3161(h)(8) continuance, harmless-error re
view is not appropriate.
V
We hold that the 91-day continuance granted on January
31 was not excluded from petitioner’s speedy trial clock.
Because this continuance by itself exceeded the maximum
70-day delay provided in § 3161(c)(1), the Act was violated,
and we need not address whether any other periods of delay
during petitioner’s case were not excludable. The sanction
for a violation of the Act is dismissal, but we leave it to the
District Court to determine in the first instance whether dis
missal should be with or without prejudice. See § 3162(a)(2).
The judgment of the Court of Appeals is therefore reversed,
and the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Justice Scalia, concurring in part and concurring in the
judgment.
I concur in the opinion of the Court with the exception
of its discussion of legislative history in Part III–A–2. For
reasons I have expressed elsewhere, I believe that the only
language that constitutes “a Law” within the meaning of the
Bicameralism and Presentment Clause of Article I, § 7, and

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hence the only language adopted in a fashion that entitles it
to our attention, is the text of the enacted statute. See, e. g.,
Conroy v. Aniskoff, 507 U. S. 511, 518–528 (1993) (Scalia, J.,
concurring in judgment). Here, the Court looks to legisla
tive history even though the remainder of its opinion amply
establishes that the Speedy Trial Act is unambiguous. The
Act’s language rejects the possibility of a prospective waiver,
and even expresses the very point that the Court relies on
legislative history to support—that the Act protects the in
terests of the public as well as those of the defendant. See
ante, at 500–501 (citing 18 U. S. C. § 3161(h)(8)(A)). Use of
legislative history in this context thus conflicts not just with
my own views but with this Court’s repeated statements
that when the language of the statute is plain, legislative
history is irrelevant. See, e. g., United States v. Gonzales,
520 U. S. 1, 6 (1997). “We have stated time and again that
courts must presume that a legislature says in a statute what
it means and means in a statute what it says there. When
the words of a statute are unambiguous, then, this first canon
is also the last: judicial inquiry is complete.” Connecticut
Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992) (cita
tions and internal quotation marks omitted).
It may seem that there is no harm in using committee
reports and other such sources when they are merely in ac
cord with the plain meaning of the Act. But this sort of
intellectual piling-on has addictive consequences. To begin
with, it accustoms us to believing that what is said by a sin
gle person in a floor debate or by a committee report repre
sents the view of Congress as a whole—so that we some
times even will say (when referring to a floor statement and
committee report) that “Congress has expressed” thus-and
so. See, e. g., Conroy, supra, at 516–517. There is no basis
either in law or in reality for this naive belief. Moreover, if
legislative history is relevant when it confirms the plain
meaning of the statutory text, it should also be relevant
when it contradicts the plain meaning, thus rendering what

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is plain ambiguous. Because the use of legislative history is
illegitimate and ill advised in the interpretation of any stat
ute—and especially a statute that is clear on its face—I do
not join this portion of the Court’s opinion.