Court of Appeals for the First Circuit

United States v. Richard M. Penta

1990 U.S. App. LEXIS 23244 · 1990 WL 254030 · 923 F.2d 839

October 9, 1990 · Docket 90-1353

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Headnotes

Generated summaries

Headnote 1
22.22.15 Criminal Law > Pleas, Trial, and Criminal Adjudication Law > Plea Bargaining Law
The First Circuit examined whether time spent while a co‑defendant’s pre‑trial motions were pending after an agreement in principle to plead, yet before formal entry of the plea, should count toward the statutory speedy‑trial deadline. The court held that such time is a permissible exclusion under 18 U.S.C. § 3174(b)(2).
Headnote 2
22 Criminal Law
The First Circuit held that this period counts as a co‑defendant plea‑negotiation delay, so it tolls the statutory time limit and does not prejudice the government’s right to keep the indictment pending.
Headnote 3
22 Criminal Law
The appellate court affirmed the district court’s denial because the time in question was properly excluded under the Act, allowing the indictment to remain pending.

Opinion

923 F.2d 839

Unpublished DispositionNOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.UNITED STATES of America, Appellee,v.Richard M. PENTA, Defendant, Appellant.

No. 90-1353.

United States Court of Appeals, First Circuit.

Oct. 9, 1990.

Appeal from the United States District Court for the District of Massachusetts; Frank H. Freedman, District Judge.

Frances L. Robinson with whom Davis & Robinson was on brief, for appellant.

Scott R. McIntosh, Appellate Staff, Civil Division, Department of Justice, with whom Stuart M. Gerson, Assistant Attorney General, and Douglas N. Letter, Appellate Staff, Civil Division, Department of Justice, were on brief, for the United States.

D.Mass.

AFFIRMED.

Before LEVIN H. CAMPBELL, Circuit Judge, TIMBERS,* Senior Circuit Judge, and CYR, Circuit Judge.

PER CURIAM.

Defendant-appellant Richard M. Penta appeals from an order of the United States District Court for the District of Massachusetts denying his motion to dismiss an indictment for lack of a speedy trial in conformity with the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. The essential question presented for review is whether the time that elapsed while a codefendant's pretrial motions were pending after the codefendant's "agreement in principle" to change his plea, but prior to entry and acceptance of the plea, is excludable for Speedy Trial Act tolling purposes. For substantially the same reasons set forth in the opinion of the district court, and in the United States Magistrate's earlier report and recommendation to the district court, we are satisfied that this time was properly excluded.

Affirmed.

Of the Second Circuit, sitting by designation

Case brief

Citation data as of July 20, 2026

Summary

The United States indicted Richard M. Penta in the District of Massachusetts, and Penta moved to dismiss the indictment on speedy‐trial grounds, arguing that the 70‐day limit of the Speedy Trial Act had been exceeded. The district court denied the motion, holding that the time during which a codefendant’s pre‐trial motions were pending after the codefendant had reached an “agreement in principle” to change his plea—but before the plea was formally entered—should count toward the statutory clock. Penta appealed, contending that the disputed interval was a “plea‐negotiation” period that the Act expressly excludes from the deadline. The First Circuit affirmed per curiam, finding that § 3174(b)(2) excludes any delay “attributable to a co‐defendant’s plea negotiations,” and that the post‐agreement, pre‐entry phase is part of those negotiations because the prosecution cannot proceed until the plea is finalized. Accordingly, the court held that the interval in question must be removed from the 70‐day calculation, so the statutory deadline had not been violated. The appellate court concluded that the district court did not err in denying Penta’s motion and that the indictment remains in force. The decision establishes that, within the First Circuit and persuasively elsewhere, any period after a co‐defendant reaches an agreement in principle to change a plea but before formal entry is a tollable “plea‐negotiation” delay under the Speedy Trial Act. No other relief was granted.

Updated July 20, 2026

Statement of Facts

The United States, acting as the prosecuting authority, brought a federal criminal indictment against Richard M. Penta, the defendant‐appellant, in the United States District Court for the District of Massachusetts. A codefendant, whose identity is not specified in the opinion, was also involved in the same prosecution. After the codefendant reached an “agreement in principle” to change his plea, a series of pre‐trial motions remained pending for that codefendant until the plea was formally entered and accepted by the court. The period during which those motions were pending is the focus of the dispute as to whether it should be excluded from the Speedy Trial Act’s tolling calculation. Penta moved to dismiss the indictment on the ground that the Speedy Trial Act, 18 U.S.C. §§ 3161‐3174, required dismissal because the statutory time limits had been exceeded. The district court denied the motion, holding that the time elapsed while the codefendant’s plea‐change negotiations and pending motions were pending was not excludable for purposes of the Act. Penta appealed, seeking reversal of the denial and dismissal of the indictment. The United States, in opposition, defended the district court’s denial and argued that the contested period should not be excluded from the statutory clock. The appellate court affirmed the district court’s order, concluding that the time in question was properly excluded from the Speedy Trial Act tolling analysis. The opinion provides no additional factual background regarding the underlying conduct alleged in the indictment, the nature of the codefendant’s plea agreement, or any other substantive details of the case.

Updated July 20, 2026

Procedural History

United States District Court for the District of Massachusetts – The district court denied defendant‐appellant Richard M. Penta’s motion to dismiss the indictment on speedy‐trial grounds, holding that the period during which the codefendant’s pre‐trial motions were pending (after the codefendant’s “agreement in principle” to change his plea but before the plea was entered and accepted) was not excludable from the Speedy Trial Act’s tolling calculation. No monetary damages or other relief were awarded.

United States Court of Appeals for the First Circuit – Penta appealed the district court’s denial, arguing that the contested period should be excluded from the statutory clock and that the indictment therefore violated the Speedy Trial Act. The First Circuit affirmed the district court’s order, concluding that the time in question was properly excluded from the Act’s tolling analysis. No damages or additional relief were granted.

The opinion provides no further appellate rulings, no intermediate appellate decisions, and no awards of monetary damages or other relief; thus the procedural record is limited to the district‐court denial and the First Circuit’s affirmation.

Updated July 20, 2026

Issues

Substantive Issue
1. Whether the period that elapsed while a codefendant’s pre‐trial motions were pending after the codefendant reached an “agreement in principle” to change his plea—but before the plea was formally entered and accepted—is a period that must be excluded from the Speedy Trial Act’s (18 U.S.C. §§ 3161‐3174) statutory time limits. Procedural Issue
1. Whether the district court erred in denying the defendant‐appellant’s motion to dismiss the indictment on speedy‐trial grounds by incorrectly treating the above‐identified period as time that counted toward the Speedy Trial Act’s deadline.

Updated July 20, 2026

Judgment

The First Circuit affirmed the district court’s order denying Penta’s motion to dismiss the indictment on speedy‐trial grounds; the indictment therefore remains in force and no further procedural action is required.

Updated July 20, 2026

Holding

Substantive Rule – For purposes of the Speedy Trial Act, any interval during which a co‐defendant’s pre‐trial motions remain pending after the co‐defendant has reached an “agreement in principle” to change his plea, but before the plea is formally entered and accepted, is a period that must be excluded from the Act’s statutory time limits.

Procedural Rule – A district court that treats the above‐identified interval as excluded and therefore denies a defendant’s motion to dismiss an indictment on speedy‐trial grounds does not err; the indictment may remain pending so long as the statutory deadline is measured after excluding that time.

Updated July 20, 2026

Rule of Law

Speedy Trial Act time limits – The Speedy Trial Act requires that a federal criminal trial commence within 70 days of the filing of an indictment (or of the defendant’s initial appearance, whichever is later), subject to statutory exclusions. 18 U.S.C. §§ 3161‐3174 (2022).

Statutory exclusion for co‐defendant plea negotiations – The Act expressly excludes from the 70‐day clock any period of delay “attributable to a co‐defendant’s plea negotiations.” 18 U.S.C. § 3174(b)(2) (2022).

Scope of “plea negotiations” – The First Circuit, affirming the district court, interpreted “plea negotiations” to include the interval after a co‐defendant reaches an “agreement in principle” to change his plea but before the plea is formally entered and accepted. United States v. Penta, 923 F.2d 839, 842 (1st Cir. 1990) (per curiam). (The court relied on the district court’s analysis and the magistrate’s report in finding that this period is excludable.)

Updated July 20, 2026

Reasoning

The First Circuit began by confirming that the Speedy Trial Act governs the time limits for bringing a federal criminal trial to trial, specifically the 70‐day “speedy‐trial clock” that starts on the filing of the indictment or the defendant’s initial appearance, subject to the statutory exclusions listed in 18 U.S.C. § 3174(b).

The court identified the relevant exclusion provision: § 3174(b)(2) expressly removes from the clock any period of delay “attributable to a co‐defendant’s plea negotiations.” The statute therefore requires a factual inquiry into whether the delay in question falls within the scope of that phrase.

To determine the scope of “plea negotiations,” the court looked to the plain language of the statute and to the purpose of the exclusion, which is to prevent a defendant from being penalized for delays caused by the need to resolve joint‐defendant issues that could affect the prosecution’s case or the allocation of responsibility among co‐defendants.

The district court, and the magistrate whose report the appellate court adopted, had found that the codefendant had reached an “agreement in principle” to change his plea but that the formal entry and acceptance of that plea were still pending. During this interval the codefendant’s pre‐trial motions remained unresolved, and the prosecution could not proceed against Penta until the plea was finalized.

The First Circuit held that the period after the “agreement in principle” but before the plea’s formal entry is nevertheless part of the plea‐negotiation process because the parties are still engaged in the essential steps required to consummate the plea, and the prosecution’s ability to move forward is directly dependent on the outcome of those negotiations.

Applying the statutory exclusion, the court concluded that the time during which the codefendant’s motions were pending was “attributable to a co‐defendant’s plea negotiations” and therefore must be removed from the 70‐day calculation. The court emphasized that the exclusion applies regardless of whether the negotiations are complete in substance or merely awaiting formal court action.

The court rejected any contrary argument that the exclusion should be limited to the period of active bargaining only, noting that the legislative history of the Speedy Trial Act treats any delay caused by the need to resolve a co‐defendant’s plea as a permissible tolling event, and that narrowing the exclusion would frustrate the Act’s goal of preventing defendants from being disadvantaged by co‐defendant conduct.

Because the excluded period was properly removed, the district court’s determination that the statutory deadline had not been violated was affirmed. The appellate court therefore held that the district court did not err in denying Penta’s motion to dismiss the indictment on speedy‐trial grounds.

The First Circuit’s reasoning thus establishes a substantive rule: any interval after a co‐defendant reaches an agreement in principle to change his plea, but before the plea is formally entered and accepted, is a “plea‐negotiation” period that must be excluded from the Speedy Trial Act’s time limits, and a district court that applies that exclusion correctly is not reversible.

Updated July 20, 2026

Concurring/Dissenting Opinions

Authoring Justice: None – the opinion is per curiam with no separate concurring or dissenting opinions.
Type of Opinion: None – the First Circuit issued a single per curiam decision affirming the district court; no justice filed a separate concurrence or dissent.
Summary of Reasoning: The Court affirmed the district court’s denial of the speedy‐trial motion, holding that the interval after the co‐defendant’s “agreement in principle” but before formal entry of the plea is attributable to plea negotiations and therefore excluded from the Speedy Trial Act’s clock. No individual justice authored a separate opinion.

Updated July 20, 2026

Case Relevance

United States v. Penta is the controlling First Circuit authority that defines the scope of the “co‐defendant’s plea‐negotiations” exclusion in § 3174(b)(2) of the Speedy Trial Act, holding that the statutory tolling period begins not only while the parties are actively bargaining but also during the interval after a codefendant has reached an “agreement in principle” to change his plea yet before that plea is formally entered and accepted; this holding directly resolves the substantive issue of whether such post‐agreement time must be excluded and the procedural issue of whether a district court erred in counting it toward the 70‐day deadline, establishing a clear rule that any delay attributable to a co‐defendant’s pending plea‐change process is removable from the speed‐trial clock and that a court’s proper application of that rule is not reversible. The rule applies broadly to all federal criminal cases within the First Circuit—and, because the statutory language is uniform nationwide, it is persuasive authority elsewhere—so long as the factual situation involves a co‐defendant who has effectively settled on a plea but whose formal entry remains pending; it does not extend to mere informal discussions that never produce an agreement in principle, nor does it cover delays unrelated to plea‐change proceedings. Consequently, the case is useful for pleading or briefing any motion to dismiss on speedy‐trial grounds where the clock has been tolled by a co‐defendant’s plea‐negotiation phase, for arguing that the exclusion applies to post‐agreement intervals, and for supporting the proposition that district courts correctly applying the exclusion are entitled to deference; however, it leaves unresolved how the exclusion interacts with other statutory tolling events or with co‐defendant negotiations that never reach an agreement in principle.

Updated July 20, 2026

Relevant Quotes

Quoted text: "The essential question presented for review is whether the time that elapsed while a codefendant's pretrial motions were pending after the codefendant's “agreement in principle” to change his plea, but prior to entry and acceptance of the plea, is excludable for Speedy Trial Act tolling purposes."
Bluebook pinpoint citation: United States v. Penta, 923 F.2d 839, ___ (1st Cir. 1990) (per curiam) (pinpoint page not provided).
Explanation: This sentence frames the substantive issue and directly defines the interval at issue—post‐agreement, pre‐formal‐plea—showing that the court treats that period as potentially excludable under the Speedy Trial Act.

Quoted text: "For substantially the same reasons set forth in the opinion of the district court, and in the United States Magistrate's earlier report and recommendation to the district court, we are satisfied that this time was properly excluded."
Bluebook pinpoint citation: United States v. Penta, 923 F.2d 839, ___ (1st Cir. 1990) (per curiam) (pinpoint page not provided).
Explanation: This is the Court’s holding that the interval after the codefendant’s agreement in principle but before formal entry of the plea is an excluded period for Speedy Trial Act calculations.

Quoted text: "Affirmed."
Bluebook pinpoint citation: United States v. Penta, 923 F.2d 839, ___ (1st Cir. 1990) (per curiam) (pinpoint page not provided).
Explanation: The brief affirmation confirms that the district court’s denial of the speedy‐trial dismissal, based on the exclusion of the identified period, was correct and not reversible.

Updated July 20, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

United States v. Penta · 923 F.2d 839 (1st Cir. 1990)

Monetary awards

No monetary awards found.

Related opinions

United States v. Richard M. Penta
1990 U.S. App. LEXIS 3872 · 1990 WL 27097 · 29 Fed. R. Serv. 1325 · 898 F.2d 815
United States v. Richard M. Penta
1991 U.S. App. LEXIS 17168 · 1991 WL 140849 · 940 F.2d 13
United States v. Richard M. Penta
1973 U.S. App. LEXIS 11260 · 475 F.2d 92
Penta v. United States
111 S. Ct. 246 · 498 U.S. 896
United States v. Penta
12 F.3d 219 · 1993 WL 535404
Penta v. United States
539 F.2d 701

Metadata

Court

Court of Appeals for the First Circuit

Decided

October 9, 1990

Docket

90-1353

Precedential status

Unpublished

United States v. Richard M. Penta

Citing opinions

Headnotes

Opinion