This week saw the end of the Supreme Court's term, and while I have yet to pull together a year end review issue of the term, many of the year end decisions are below. "In Depth" this week examines capital jury selection.

A year ago today the state of Kentucky killed my close friend Harold McQueen, this issue and my website are devoted to his memory.

IN FOCUS

Monge v. CaliforniaIn upholding the concept that death is different, Supreme Court holds that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in noncapital sentencing proceedings. Five justices (O'Connor -- writing, CJ Rehnquist, Kennedy, Thomas & Breyer) holding that death is different, three justices dissenting (Scalia -- writing, Souter & Ginsburg) on the grounds that enhancement in penalty violates double jeopardy, and Justice Stevens going his own way and dissenting, Good review of double jeopardy and death is different formulation (add Justice Thomas to the list of those feeling that way too)

In Bullington , a capital defendant had received a sentence of life imprisonment from the original sentencing jury. The defendant subsequently obtained a new trial on the ground that the court had permitted prospective women jurors to claim automatic exemption from jury service in violation of the Sixth and Fourteenth Amendments. 451 U.S., at 436. When the State announced its intention to seek the death penalty again, the defendant alleged a double jeopardy violation. . . . We later extended the rule set forth in Bullington to a capital sentencing scheme in which the judge, as opposed to a jury, had initially determined that a life sentence was appropriate. See Arizona v. Rumsey, 467 U.S. 203, 209-210 (1984).

The penalty phase of a capital trial is undertaken to assess the gravity of a particular offense andof a trial that we identified in Bullington , a critical component of our reasoning in that case was the capital sentencing context. The penalty phase of a capital trial is undertaken to assess the gravity of a particular offense and to determine whether it warrants the ultimate punishment; it is in many respe430 U.S. 349, 358 (1977). Because the death penalty is unique "in both its severity and its finality," id. , at 357, we have recognized an acute need for reliability in capital sentencing proceedings. See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (opinion of Burger, C. J.) (stating that the "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed"); see also Strickland v. Washington, 466 U.S. 668, 704 (1984) (Brennan, J., concurring in part and dissenting in part) ("[W]e have consistently required that capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding").

In an attempt to minimize the relevance of the death penalty context, petitioner argues that the application of double jeopardy principles turns on the nature rather than the consequences of the proceeding. For example, petitioner notes that Bullington did not overrule the Court's decision in Stroud v. United States , 251 U.S. 15 (1919) -which found the double jeopardy bar inapplicable to a particular capital sentencing proceeding-but rather distinguished it on the ground that the proceeding at issue did not bear the hallmarks of a trial on guilt or innocence. Stroud predates our decisions in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) , and Gregg v. Georgia, 428 U.S. 153 (1976) (joint opinion of Stewart, Powell, and STEVENS , JJ.); it was decided at a time when "no significant constitutional difference between the death penalty and lesser punishments for crime had been expressly recognized by this Court." See Gardner , supra , at 357 (opinion of STEVENS , J.). Consequently, the capital sentencing procedures at issue in Stroud did not resemble a trial, and the Court confronted a different question in that case. The holding of Bullington turns on both the trial-like proceedings at issue and the severity of the penalty at stake. That the Court focused on the absence of procedural safeguards in distinguishing an earlier capital case does not mean that the Bullington decision rests on a purely procedural rationale.

In our death penalty jurisprudence, moreover, the nature and the consequences of capital sentencing proceedings are intertwined. We have held that "in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (joint opinion of Stewart, Powell, and STEVENS , JJ.) (internal citation omitted). Where noncapital sentencing proceedings contain trial-like protections, that is a matter of legislative grace, not constitutional command. Many States have chosen to implement procedural safeguards to protect defendants who may face dramatic increases in their sentences as a result of recidivism enhancements. We do not believe that because the States have done so, we are compelled to extend the double jeopardy bar. Indeed, were we to apply double jeopardy here, we might create disincentives that would diminish these important procedural protections.

ROSS v ARTUZ (and three other cases),Second Circuit reverses a district court holding barring as untimely a state prisoner's habeas corpus petition filed pursuant to 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998) within one year after effective date of the Antiterrorism and Effective Death Penalty Act of 1996, see 28 U.S.C.A. § 2244(d).

Because the Constitution prohibits governments from depriving any person of life, liberty, or property, without due process of law, "all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts," Wilson v. Iseminger, 185 U.S. 55, 62 (1902). It is thus impermissible for a newly enacted or shortened statute of limitations to extinguish existing claims immediately upon the statute's enactment. See, e.g., Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 286 n.23 (1983); Texaco, Inc. v. Short, 454 U.S. 516, 527 n.21 (1982); Wilson v. Iseminger, 185 U.S. at 62-63; Sohn v. Waterson, 84 U.S. (17 Wall.) 596, 599 (1873). Accordingly, where it is clear that Congress intended to foreclose suits on certain claims, "[t]he Constitution . . . requires that statutes of limitations must '"allow a reasonable time after they take effect for the commencement of suits upon existing causes of action."'" Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. at 286 n.23 (quoting Texaco, Inc. v. Short, 454 U.S. at 527 n. 21 (quoting Wilson v. Iseminger, 185 U.S. at 62)); see, e.g., United States v. Morena, 245 U.S. 392, 397 (1918); Terry v. Anderson, 95 U.S. 628, 632-33 (1877) ("statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect").

The subject matter of a federal-court petition for habeas corpus or of a § 2255 motion is of the highest importance, for both assert constitutional defects or other violations of federal law in proceedings affecting human life or liberty. Thus, in ruling that courts should follow Habeas Rule 9(a) rather than generalized notions of equity in determining whether to dismiss a state prisoner's first habeas petition on the ground of delay, the Supreme Court in Lonchar v. Thomas, 517 U.S. 314 (1996), observed that a procedural dismissal "of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Id. at 324 (emphasis omitted). The Court stated that "given the importance of a first federal habeas petition, it is particularly important that any rule that would deprive inmates of all access to the writ should be both clear and fair." Id. at 330; see id. (discouraging the application to first federal habeas petitions of "ad hoc equitable devices").

AEDPA is silent as to what grace period is to be allowed for the filing of habeas petitions by prisoners whose convictions became final before the effective date of the Act. All of our sister Circuits that have considered this question have concluded that a one-year grace period should be allowed. See, e.g., Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 118 S. Ct. 899 (1998); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev'd on other grounds, 117 S. Ct. 2059 (1997); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998) (reaffirming Lindh's conclusion that a one-year grace period applies to federal prisoners' § 2255 motions); see also United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998) (adopting one-year grace period for § 2255 motions); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997) (same).

SUPREME COURT

Swidler & Berlin and James Hamilton v. United States The United States Supreme Court held (6-3) that notes of a deceased lawyer, Vincent Foster, which had been subject to a subpoena by a federal grand jury at the request of Independent Counsel Kenneth Starr and which purported to record notes of conversations relating to the firing of the White House Travel Office staff in 1993, were protected by the attorney-client privilege and therefore need not be turned over to the Independent Counsel. The strength of the common law rule, supported by many court decisions, which would accord attorney-client privilege to these documents, places a heavy burden on those who would argue for abrogating this rule. The Independent Counsel did not sustain that burden in this case.

United States v. Balsys The United States Supreme Court held (7-2) that Balsys could not claim the Fifth Amendment privilege against self-incrimination based on fear of prosecution by a foreign nation, even though the proceeding that might lead to his deportation, in which he invoked the Fifth Amendment, took place in this country. Excellent dissent (and short too) by Ginsburg.

Bragdon v. Abbott The United States Supreme Court held, in a divided opinion, that a woman who is HIV-positive and non-symptomatic has a "disability" under the Americans with Disabilities Act (ADA).

Wisconsin Dept. of Corrections v. Schacht The United States Supreme Court unanimously held that the presence, in an otherwise removable case, of an Eleventh Amendment barred claim does not destroy the removal jurisdiction that would otherwise exist.

United States v. Bajakajian The United States Supreme Court held (5-4) that full forfeiture of an unreported $357,144 which was found on the defendant's person when he attempted to leave the United States was an excessive fine in violation of the Eighth Amendment of the United States Constitution because the amount of forfeiture must bear some relation to the gravity of the offense that it was designed to punish, and respondent's only offense was a failure to report the possession of the money.

Caron v. United States The United States Supreme Court held (6-3) that a state handgun prohibition on a person convicted of a serious offense activates the uniform federal ban on possessing any firearms at all by certain felons under 18 USC s 921(a)(20)

Pennsylvania Board of Probation and Parole v. Scott The United States Supreme Court held (5-4) that the federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees' Fourth Amendment rights, and the State's use of such evidence does not itself violate the Constitution.

CAPITAL CASES

Barber v. Johnson Fifth Circuit holds, inter alia, that "the penalty phase testimony by Dr. Clay Griffith relating to the future dangerousness issue violated his fourth, fifth, and fourteenth amendment rights, as well as the rules of Estelle v. Smith( and Satterwhite v. Texas. . . . his competency examination of Barber prior to trial Dr. Griffith gave no Miranda warnings, nor did he obtain consent of Barber's counsel for the examination" -- did not warrant relief and certificate of probable cause must be denied

Habeas

Neely v. Newton Tenth Circuit denies habeas relief on claims that "(1) New Mexico's GBMI statute deprives a mentally ill defendant of due process and a fair trial, in violation of the Fourteenth Amendment; (2) New Mexico's GBMI statute subjects a mentally ill defendant to cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments; and (3) the trial court's restriction of voir dire and its refusal to instruct the jury on the consequences of the not-guilty-by-reason-of-insanity ("NGRI") and GBMI verdicts deprived her of due process and a fair trial."

James v. Gammon Eighth Circuit rejects claim that plea was involuntary rejected.

Floyd v. Alexander Sixth Circuit denies gateway petition for successor writ.

Byrd v. Hasty Eleventh Circuit examines drug rehabilitation and the right under BOP guidelines for reduced sentences under certain conditions.

Moates v. BarkleySecond Circuit upholds ban on petitioner from ever filing relief under § 2254 again relating to a prior conviction as "Moates did not make any mention of the filing ban in his brief, we treat the issue as waived."

Prisoner Rights & Governmental Misconduct suits

Guite v. Wright Eighth Circuit holds police officers were not entitled to qualified immunity summary judgment because evidence did not establish reasonable force or exigent circumstances justifying warrantless arrest.

Garrett v. ClarkeEighth Circuit holds district court erred in concluding Section 1983 action for unlawful search was untimely; complaint should be filed when received even if all of the necessary PLRA documentation is not present

MMorstad v. Dept. of Correction Eighth Circuit holds Eleventh Amendment barred suit against state defendants acting in their official capacity; defendants were entitled to immunity for testimony and court-ordered evaluations.

In re: Civil Right Fourth Circuit holding that with the death of RFRA that "[t]he Inmates are Muslims, Rastafarians, Native Americans, and other individuals who are challenging a grooming policy that requires all male inmates to keep their hair short and their faces shaven . . . . the Grooming Policy does not violate the Inmates' free exercise rights, we affirm the grant of summary judgment in favor of the Defendants.

In Depth

Excerpts fromCapital Punishment: Arguments For Life And Death, Jennifer C. Honeyman and James R.P.m Canadian Journal of Behavioural Science (http://www.cpa.ca/cjbsnew/1996/ful_ogloff.htm Volume 28, 1996)

This experiment demonstrates that arguments supporting capital punishment can be effective in influencing death qualified jurors to recommend the death penalty in at least some cases. Such arguments are especially effective when they espouse the moral or economic benefits of the death penalty, when they discuss the inability to rehabilitate murderers and when they argue that there is little or no possibility of executing an innocent person. By contrast, arguments against capital punishment were not successful in persuading jurors to recommend a sentence of life imprisonment over one of death. Finally, the results suggest that death qualified participants had higher vengeance scores than excludable participants, and that participants who assigned a sentence of death had higher vengeance scores than those who chose a life sentence.

When presented with arguments for the death penalty 75% of participants recommended the death penalty and 25% recommended a life sentence. When given arguments against the death penalty and for life imprisonment approximately 53% of participants still recommended a death sentence and the other 47% a life sentence. In comparison, 52% of the control group, who received no arguments or justifications, recommended execution and 48% voted for life imprisonment.

Not only were arguments for the death penalty effective in influencing death qualified participants to choose the death penalty, but this effect was moderated by the justification used to advocate the death penalty. Four of the six arguments used to support the death penalty significantly influenced participants to sentence the defendant to death (i.e., moral justification, cost effectiveness, small chance of mistake, and little chance for rehabilitation). However, none of the arguments used to persuade participants to choose a life sentence rather than a death sentence had any significant effect.

These results suggest that participants who have previously indicated that they favour the death penalty as the sentence for at least some crimes are not influenced by arguments which directly contradict their stated belief but are influenced by those arguments which support them. Death qualified participants may be influenced only by pro capital punishment arguments because they serve to strengthen a belief these participants already hold in a moderate degree.

The results are problematic for defense counsel in jurisdictions in the United States where executions are sanctioned who might be representing a defendant in a capital sentencing case. Indeed, it would appear that merely attempting to base arguments against the death penalty on the traditional justifications employed in this study would not be effective in persuading death qualified jurors to vote against the death penalty. By contrast, the results suggest that prosecutors might effectively influence jurors to vote in favour of the death penalty by using moral, economic, rehabilitation, and (im)possibility of mistake arguments against the death penalty. Future researchers might wish to investigate what type of arguments against the death penalty might be effective (e.g., case specific arguments).

The relationship that emerged between death qualification and sentence recommendation was as one might expect. The majority (65%) of death qualified participants recommended a death sentence while the majority (75%) of excludables recommended a life sentence. However, results suggest that a minority (25%, n = 10) of participants who were not death qualified actually recommended a death sentence. It is possible that these participants misread the death qualification question. Also possible and supported by past evidence (Cowan, Thompson & Ellsworth, 1984) is that excludables can be objective in viewing the evidence presented with regards to sentencing guidelines. Finally, previous research has found considerable inconsistencies in people's opinions about the death penalty (Vidmar & Dittenhoffer, 1981; Vidmar & Ellsworth, 1974; Zamble, 1990). Indeed, Vidmar and his colleagues have shown that providing individuals with detailed information about the death penalty produces significant reductions in the extent to which they support capital punishment. Zamble (1990) describes an unpublished study by Mills and Zamble (1989) in which some participants were asked a question similar to that used by Gallup polls: whether they favour the use of the death penalty. In addition to the regular "yes" or "no" responses, though, participants were given an option of responding with "don't know." However, when provided with specific case scenarios, some participants who said they did not support the death penalty, or "didn't know" if they did, chose it as the appropriate sentence for at least one case. Likewise, other participants said they favoured the death penalty, but failed to choose it in any specific case (including descriptions modelled on Clifford Olson and Adolf Eichmann). Therefore, further research is needed to help explain the inconsistencies in people's attitudes toward the death penalty and their sentencing behaviour.

The results of the Vengeance Scale scores show that participants' levels of vengeance are related to their position on capital punishment. Indeed, death qualified participants had higher vengeance scores than excludables, and those who voted for the death penalty had higher scores than those who supported a life sentence. These results support earlier commentators who have suggested that pro-death penalty attitudes reflect a desire for vengeance and retribution (Ellsworth & Ross, 1983; Neapolitan, 1983). Furthermore, the results support those found by Vidmar (1974) in Canada over 20 years ago – retribution is an important factor in supporting capital punishment.

Like previous researchers, the results here suggest that the death qualified jurors are qualitatively different than excludables (e.g., Cowan et al., 1984). Significantly, to the extent that death qualified jurors have a higher need for vengeance, it would be difficult to develop arguments that would effectively persuade them not to support the death penalty in any particular case.

The present study found that more males (66%) than females (54%) recommended the death penalty. Furthermore, Stuckless and Goranson (1992) report that in their sample of 600 students males scored higher than females on the Vengeance Scale. Therefore, it is recommended that future analyses involving these death penalty attitudes and Vengeance Scale scores should endeavour to control for gender to avoid a possible confound.

The demographic findings regarding death qualification fail to provide additional evidence to support the findings of previous studies, possibly due to a limited sample of excludables. In the past death excludables were more likely to be female than male (Cox & Tanford, 1989; Luginbuhl & Middendorf, 1988). In this current study there were twice as many female excludables than males but, possibly due to the low number of participants who were not death qualified, this was not significant. Perhaps with an increased sample of excludables the results would have been consistent with earlier findings.

There were also no differences in age or education level between excludables and death qualified participants. Neither was the expected relationship (Cullen, Clark, Cullen & Mathers, 1985; de Vries & Walker, 1986; Fitzgerald & Ellsworth, 1984; Luginbuhl & Middendorf, 1988; White, 1987; Young, 1992) found between education and sentence recommendation. An effect for education could hardly have been expected for either sentence recommendation or death qualification due to the limited range and highly skewed nature educational status of the population sampled. All were either university or college students and only two had a university degree. Therefore, future research is needed to determine whether the results found here will extend to other populations of participants.

There was some support for the conclusion that those who recommended a death sentence were more likely to be male (Cullen, Clark, Cullen & Mathers, 1985; de Vries & Walker, 1986; Fitzgerald & Ellsworth, 1984; Luginbuhl & Middendorf, 1988; White, 1987; Young, 1992); however, because more females were not death qualified, this effect was slightly reduced when excludables were removed from the analysis. Similar results occurred with age, however the trend disappeared when excludables were not included.

Finally, only one fact pattern and set of arguments were employed in this study. This naturally raises questions, therefore, concerning the generalizability of the results obtained here. Indeed, it is possible that a different case, or different arguments for or against the death penalty, might produce different results than those reported here. Therefore, future research must test the generalizability of findings across other cases and arguments surrounding the use of the death penalty.

Other Perspecitives

LJX, as always the best legal read on the web athttp://www.ljx.com, reviews criminal cases, some of which covered here, some not. Check to see how the reviews here compare:

THE FEDERAL EXCLUSIONARY rule barring unlawfully seized evidence from criminal trials does not apply to parole-revocation proceedings, the U.S. Supreme Court ruled June 22. Pennsylvania Board of Probation and Parole v. Scott, 97-581. "We have long been adverse to imposing federal requirements upon parole systems of the states," Justice Clarence Thomas wrote for a 5-4 court. "A federal requirement that parole boards apply the exclusionary rule...would severely disrupt the traditionally informal, administrative process of parole revocation." His opinion, which added that "the marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrand seizures is insufficient to justify such an intrusion," was joined by Chief Justice William H. Rehnquist and justices Sandra D Justices John Paul Stevens and David H. Souter wrote dissenting opinions, and justices Ruth Bader Ginsburg and Stephen G. Breyer signed on to the one authored by Justice Souter.

PUNITIVE FORFEITURES violate the Eighth Amendment's ban on excessive fines if they are "grossly disproportional" to the crime, the U.S. Supreme Court ruled June 22. U.S. v. Bajakajian, 96-1487. By a 5-4 vote, the court barred the federal government from forcing a man to forfeit the $357,000 in cash he tried to take out of the country without filing the proper paperwork. Federal law states that anyone who moves more than $10,000 in cash out of the country must report it to the Treasury Department. Writing for the court, Justice Clarence Thomas said the law's requirement that sentencing courts order the unreported money forfeited can run afoul of the Constitution. "A punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense," he said. His opinion was joined by justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Anthony M. Kennedy wrote a dissenting opinion in which he was joined by Chief Justice William H. Rehnquist and justices Sandra Day O'Connor and Antonin Scalia.

A FEDERAL DISTRICT court has discretion to raise and apply a habeas petitioner's procedural default sua sponte, the 5th U.S. Circuit Court of Appeals held June 18. Magouirk v. Phillips, 96-31049. After Kenneth Wayne Magouirk was convicted of manslaughter, he raised five claims, including alleged due process and confrontation rights violations, for federal review. The district court, acting on the recommendation of a magistrate who had raised Mr. Magouirk's procedural default of three of the claims sua sponte, applied Mr. Magouirk's default to bar federal litigation of those claims. Affirming, Judge Harold R. DeMoss Jr. said, "[The petitioner] is correct that, in the habeas context, the existence of a procedural default does not destroy the jurisdiction of the federal court....[The petitioner] is also correct that procedural default is an affirmative defense that may be waived if the state fails to raise the defense in its pleadings.... But those axioms do not require the conclusion that a federal court may not notice a procedural default on its own motion."

A PRISON REGULATION that permits the confiscation of legal materials passed from one inmate to another without authorization from prison officials was upheld June 19 by the 11th U.S. Circuit Court of Appeals. Bass v. Singletary, 96-3095. Frankie Lee Bass, Leonard Bean, Enrique J. Diaz and William Van Poyck, inmates at Florida State Prison, filed suit under 42 U.S.C. 1983, challenging as unconstitutional a Florida rule which provides that "[a]ny item or article not originally contraband shall be deemed contraband if it is passed from one inmate to another without authorization." Under the rule, legal documents bearing the name of one inmate but found in the possession of another inmate at the prison were deemed "contraband" subject to confiscation if they were transferred without authorization. The district court granted the defendants' motion for summary judgment regarding the plaintiffs' access-to-courts claims. Affirming, Senior Judge Paul H. Roney noted, "[P]laintiffs alleged that as a result of defendants' actions, they have been 'unable to file proper pleadings and responses in their various litigations resulting in various litigations being dismissed or denied.' Plaintiffs have provided no evidence, however, of such dismissals or denials, and have not even alleged that these 'various litigations' were direct appeals of their convictions, habeas petitions, or civil rights actions."

TIME ALLOWED FOR the preparation and filing of pretrial motions is excluded from a speedy-trial calculation if granted pursuant to 18 U.S.C.A. 3161(h)(8), the 4th U.S. Circuit Court of Appeals ruled June 18. U.S. v. Bobby Jarrell, 97-4187. Affirming, Judge William W. Wilkins concluded that although the district court did not make the appropriate findings, the record supported a determination that the grant of additional time satisfied the ends of justice. The time, therefore, was properly excluded from the speedy-trial calculation. Bobby Jarrell appealed his conviction for conspiracy to possess with intent to distribute marijuana, arguing that the district court erred in failing to dismiss the charges against him for a violation the Speedy Trial Act of 1974. Mr. Jarrell was one of five defendants named in a superseding indictment. The last defendant to make an initial appearance in the district court did so July 21, 1995. Three days later, another co-defendant moved for additional time to prepare and file pretrial motions, and the district court July 26, 1995, granted all defendants leave to file motions past the previously set deadline of July 23. In the following months, the defendants filed several pretrial motions. Immediately before his trial, Mr. Jarrell moved to dismiss for violation of the Speedy Trial Act. The district court denied the motion, reasoning that the additional time granted defendants to prepare and file pretrial motions, as well as the time during which defendants' motions were pending, should not be counted in determining whether Mr. Jarrell was brought to trial within the time limitations specified by the act. The court concluded that time allowed for the preparation and filing of pretrial motions is excludable from the speedy-trial calculation if granted in accordance with 18 U.S.C.A. 3161(h)(8). It noted that there was no evidence on record that the district court ever made the "ends of justice" finding required by the statute but found that this did not necessarily mandate dismissal.