United States v. Cervantes: Cementing Rolling Notice-of-Disposition Exclusions and Extended Co-Defendant Delay under the Speedy Trial Act

Introduction

United States v. Cervantes, No. 24-1325 (10th Cir. July 30, 2025), tackles an increasingly common quandary in multi-defendant federal prosecutions: How long may a lone hold-out defendant be kept waiting while scores of co-defendants file rolling Notices of Disposition (NODs) and appear for change-of-plea hearings? Jesse Cervantes, the last remaining defendant in a 23-person drug-conspiracy indictment, was tried more than two years after his initial appearance. He argued the delay violated the Speedy Trial Act (STA), 18 U.S.C. § 3161 et seq. The district court disagreed, and the Tenth Circuit affirmed.

The appeal forced the court to knit together three strands of STA jurisprudence:

Whether an NOD is a “pre-trial motion” under § 3161(h)(1)(D);
Whether the entire period from the filing of an NOD through the corresponding plea hearing is automatically excludable without a “reasonableness” overlay;
How the co-defendant joinder exclusion in § 3161(h)(6) applies when the only remaining defendant never asks to be severed.

Although the panel ultimately applied existing precedents (Henderson, Loughrin, Vogl), its synthesis effectively legitimizes very lengthy rolling-plea delays and offers district courts a roadmap for handling complex, many-defendant dockets.

Summary of the Judgment

The Tenth Circuit, per Judge Hartz, held:

The STA’s 70-day clock was tolled for the entire 520-day span during which at least one co-defendant’s NOD was pending, because:
- (a) an NOD is a “pre-trial motion” (United States v. Loughrin), making § 3161(h)(1)(D) applicable; and
- (b) under Henderson v. United States, all time “between the filing of and the hearing on” a motion is excluded, promptness notwithstanding.
Under § 3161(h)(6) the same excluded time applies to co-defendants, provided the delay is “reasonable.” Applying the three-factor Vogl test, a 520-day delay was reasonable because:
- (1) although Cervantes was detained (favoring his position),
- (2) he had not zealously pursued a speedy trial (he joined/co-signed continuances and never moved for severance), and
- (3) a single trial would conserve judicial resources in a sprawling conspiracy case.
No Sixth Amendment speedy-trial violation or due-process concerns required discussion on appeal.

Result: Convictions affirmed; no STA violation.

Analysis

(A) Precedents Cited and Their Influence

United States v. Loughrin, 710 F.3d 1111 (10th Cir. 2013)
• Held that a Notice of Disposition is a “pre-trial motion” for STA purposes.
• Cervantes contested the logic, but the panel was bound by Loughrin; thus the exclusion started with every NOD filing.
Henderson v. United States, 476 U.S. 321 (1986)
• Construed (h)(1)(D)’s predecessor and declared the entire interval “between the filing of and the hearing on a motion” excludable, regardless of promptness.
• The panel refused to read in a “reasonable promptness” qualifier for NODs.
United States v. Vogl, 374 F.3d 976 (10th Cir. 2004)
• Provided a three-factor yardstick for measuring the “reasonableness” of co-defendant delay under § 3161(h)(6).
• Guided the district court’s 520-day reasonableness analysis.
United States v. Margheim, 770 F.3d 1312 (10th Cir. 2014) & United States v. Cortez-Gomez, 926 F.3d 699 (10th Cir. 2019)
• Both underscore the difficulty of upsetting co-defendant exclusions absent a severance motion or concrete prejudice. Cervantes’s failure to sever aligned the case with this precedent.

(B) Court’s Legal Reasoning

1. Classification of NODs as Pre-Trial Motions
The court reiterated that an NOD is functionally akin to a plea-related motion requiring court action; hence, § 3161(h)(1)(D) applies. The panel acknowledged Cervantes’s critique but invoked horizontal stare decisis to leave Loughrin intact.

2. Automatic Exclusion Window
Relying on Henderson, the panel rejected any obligation to enquire whether each plea hearing was scheduled “promptly.” Thus, from the minute each co-defendant filed an NOD until that defendant’s plea hearing concluded, all days were excludable.

3. Spill-Over to Non-Moving Defendants
Section (h)(6) extends exclusions to joined defendants so long as the delay is “reasonable.” The majority approved the district court’s application of Vogl:

Factor 1 – Custody status: Cervantes was detained (cuts against exclusion).
Factor 2 – Diligence: He cooperated in continuances and never sought severance (cuts in favor of exclusion).
Factor 3 – Judicial efficiency: A multi-defendant conspiracy trial would conserve resources; additionally future arrests or plea withdrawals were possible (cuts in favor).

On balance the 520-day period was “reasonable,” especially since co-defendant NODs were pending at all times; there were no “gaps” in exclusion.

(C) Potential Impact of the Judgment

Lengthy Rolling Pleas Endorsed – District courts within the Tenth Circuit now have explicit appellate approval to exclude protracted periods—well over a year—when sequential NODs are filed in large conspiracies.
Incentive to Seek Severance – The decision underscores that defendants who do not seek severance will face an uphill battle challenging STA exclusions tied to co-defendants.
Judicial Resource Rationale Strengthened – Cervantes validates district courts’ forward-looking speculation (e.g., fugitives might be captured) when assessing efficiency under Vogl, even if ultimately only one defendant goes to trial.
Limited Scope for “Prompt Disposition” Argument – Efforts to carve out a reasonableness check within § 3161(h)(1)(D) are effectively foreclosed absent Supreme Court intervention or statutory amendment.

Complex Concepts Simplified

Speedy Trial Act (STA): A federal statute guaranteeing that a criminal trial begins within 70 days of indictment or first appearance. The clock pauses (is “excluded”) for various events, such as motions or co-defendant proceedings.
Notice of Disposition (NOD): A filing notifying the court that a defendant intends to change his plea, typically from not guilty to guilty. It triggers a change-of-plea hearing.
Excludable Time: Days that do not count toward the 70-day STA limit, usually because of motions, continuances, or proceedings involving co-defendants.
§ 3161(h)(1)(D): Excludes “delay resulting from any pre-trial motion, from the filing of the motion through the conclusion of the hearing on … such motion.”
§ 3161(h)(6): Excludes a “reasonable period of delay” when defendants are joined for trial with co-defendants whose STA clock has not yet run, absent severance.
Henderson Rule: All time between filing and hearing of a motion is excluded; no separate inquiry into “promptness.”
Vogl Factors: Three-part test for reasonableness of co-defendant delay: (1) custody status, (2) defendant’s diligence in seeking speedy trial, (3) efficiency in joint trial.

Conclusion

United States v. Cervantes fortifies the doctrinal edifice on which multi-defendant conspiracy cases rest. By reaffirming that (i) NODs are pre-trial motions, (ii) the entire interval through plea hearings is excludable without additional “promptness” scrutiny, and (iii) protracted, rolling plea hearings can be “reasonable” under § 3161(h)(6), the Tenth Circuit gives prosecutors and trial courts wide berth to manage complex dockets. For defendants, the opinion is a cautionary tale: invoke severance early, press for firm trial dates, or risk seeing the STA clock effectively frozen while co-conspirators work out their pleas.