PER CURIAM.

This case arose as one of several prosecutions in a campaign by the Justice Department to rid the Oklahoma and Kansas highway construction industry of anticompetitive bidding practices. In view of the issues on appeal, it will be helpful to recite the procedural history of the case in some detail.

On August 22, 1984, a grand jury sitting in the Western District of Oklahoma returned a seven-count indictment against Mobile Materials, Inc. (the Corporation), Mobile Materials Company (the Partnership), and Gerald O. Philpot, the president of both firms. Count one of the indictment charged all three defendants and unnamed co-conspirators with participation in a conspiracy to submit rigged bids to, or withhold bids from, the Oklahoma Department of Transportation and the Oklahoma Turnpike Authority in violation of section 1 of the Sherman Act, 15 U.S.C. § 1 (1982). Counts two and three charged Mr. Philpot and the Corporation with making false, fictitious, and fraudulent statements to the United States Department of Transportation in violation of 18 U.S.C. § 1001 (1982); and counts four through seven charged all three defendants with mail fraud under 18 U.S.C. § 1341 (1982) in connection with the progress payments claimed from the state of Oklahoma.

Prior to trial, the defendants moved to dismiss the indictment on the ground that both the Corporation and the Partnership had been dissolved more than two years before the indictment was returned. The district court granted the motion as to the Corporation and the Partnership, finding its ruling compelled by our decision in United States v. Safeway Stores, 140 F.2d 834 (10th Cir. 1944). The court declined to dismiss the criminal charges lodged against Mr. Philpot, however, reasoning that its order as to the Corporation and Partnership had no bearing on the allegations against him and no effect on the government's burden of proof. Rec. vol. I, doc. 37 at 4-5.

Subsequently, the government filed an interlocutory appeal under 18 U.S.C. § 3731 (1982 Supp. IV 1986) to contest the district court's dismissal of the indictment and moved for a continuance in the prosecution of Mr. Philpot under section 3161(h)(8) of the Speedy Trial Act, 18 U.S.C. § 3161-3174 (1982 Supp. II 1984). The district court granted the government's motion, concluding that "the ends of justice served by granting such a continuance outweigh the best interests of the public and the Defendant in a speedy trial." Rec. vol. I, doc. 49 at 1. The government's appeal was presented to us in the case of United States v. Mobile Materials, Inc., 776 F.2d 1476 (10th Cir. 1985).

In Mobile Materials, we reversed the district court's ruling that under Oklahoma law a criminal prosecution cannot be maintained against a corporation that was dissolved before the return of the indictment. On December 9, 1985, we issued a mandate to the district court to conduct further proceedings in the prosecution of the three defendants consistent with that holding. As a first step in reactivating the prosecution, the district court held a status conference on January 9, 1986, in which it granted requests by both parties for permission to file motions and amended documents. Rec. vol. I, doc. 59.

Following an eight-day jury trial begun on March 3, 1986, the Partnership was acquitted of all charges. However, Mr. Philpot and the Corporation were convicted of the Sherman Act violation and one count of making false and fraudulent statements to the United States Department of Transportation. The district court sentenced Mr. Philpot to serve two concurrent three-year terms of imprisonment and to pay fines totaling $110,000. The court also imposed fines totaling $510,000 against the Corporation.

On appeal, Mr. Philpot and the Corporation (the appellants) raise four issues: (1) whether the case should have been submitted to the jury on a theory of a grand conspiracy to rig bids, (2) whether the Speedy Trial Act was violated by the protracted length of the prosecution, (3) whether the trial judge's attitude and demeanor convinced the jury that the judge thought the appellants were guilty, and (4) whether the sentences were grossly disproportionate to others given for the same crimes and imposed without regard for the circumstances of the defendants.

Sufficiency of the Indictment

Under the general heading of the first issue presented, the appellants raise several arguments. We only consider the contention that the indictment is insufficient., Appellants suggested below that count one failed to provide sufficient information to enable them to prepare a defense, contrary to the sixth amendment to the United States Constitution. They also argue that count one may be based on facts not presented to the grand jury, contrary to the fifth amendment.

The sufficiency of an indictment is judged by 1) whether the indictment contains the elements of the offense and apprises the defendant of the charges he must meet and 2) whether the defendant would be protected against double jeopardy by a judgment on the indictment. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). Appellants' real complaint about count one of the indictment is that its breadth allowed the introduction of co-conspirator testimony and allowed the jury to consider evidence of a single conspiracy to rig bids, of which the appellants were a part. Appellants' Brief In Chief at 12-14 (citing United States v. Heath, 580 F.2d 1011, 1026 (10th Cir. 1978) (McKay, J., dissenting), cert. denied, 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979)). Indeed, appellants have challenged the admissibility of co-conspirator statements and the sufficiency of the evidence to support a single conspiracy, but have not provided us with those portions of the transcript needed for our review. See, e.g., United States v. Washita Constr. Co., 789 F.2d 809, 821-22 (10th Cir. 1986) (court reviewed trial testimony and judge's findings in rejecting defendants' claims that co-conspirator hearsay admitted improperly). We decline to consider these issues in the absence of a record containing those portions of the transcript on which the parties rely. United States v. Tedder, 787 F.2d 540, 542 n. 2 (10th Cir. 1986); United States v. Strand, 617 F.2d 571, 577 (10th Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (1980); Rachbach v. Cogswell, 547 F.2d 502, 504 (10th Cir. 1977).

Turning to the sufficiency of the indictment, the entire document may be considered. United States v. Metropolitan Enter., Inc., 728 F.2d 444, 452-53 (10th Cir. 1984). For purposes of testing the sufficiency of the indictment, the essential elements of a conspiracy under §§ 1 2 of the Sherman Act are "time, place, manner, means and effect." United States v. Greater Kansas City Retail Coal Merchants' Ass'n, 85 F. Supp. 503, 508 (W.D.Mo. 1949). In this case, the paragraphs preceding count one and count one itself establish these elements.

15 U.S.C. § 1 provides that contracts, combinations and conspiracies in restraint of trade are illegal. Tracking the statutory language, paragraph 14 of the indictment charged that "the defendants and co-conspirators engaged in a combination and conspiracy in unreasonable restraint of trade and commerce" from July 1978, through February 1982. Rec. vol. I, doc. 1 at 7. Paragraph 9 of the indictment explains the sealed competitive bidding process used by the Oklahoma Department of Transportation and Oklahoma Turnpike Authority. Id. at 4-5. Highway construction contracts are awarded to the lowest responsible bidder following the opening of sealed bids. Id. Paragraph 15 of the indictment charges that a substantial term of the conspiracy "was to submit collusive, noncompetitive, and rigged bids to, or withhold bids from, the Oklahoma Department of Transportation and the Oklahoma Turnpike Authority for the award of highway construction projects in Oklahoma." Id. at 7. Paragraph 16 outlines the practices in furtherance of the conspiracy allegedly engaged in by the appellants and other conspirators including: 1) discussing the submission of prospective bids on projects, 2) agreeing on the successful low bidder on projects, 3) submitting intentionally high, noncompetitive bids or withholding bids on construction projects and 4) submitting bid proposals with false statements and entries. Id. at 8. Paragraph 17 spells out the anticompetitive effects of the conspiracy, primarily the lessening of price competition.

The indictment charges the appellants with a bid-rigging conspiracy in the award of highway projects during a 43-month period, from July 1978 through February 1982. Thus, the time element is satisfied. The conspiracy is alleged to have existed in the Western District of Oklahoma. Rec. vol. I, doc. 1 at 9. Thus, the place element is satisfied. The indictment specifies the manner and means of the conspiracy. There was advance agreement as to which co-conspirator would be the low bidder on highway construction projects. With this object in mind, some noncompetitive bids were submitted, and some bids were withheld. The indictment also specified the effect of this practice, a lessening of price competition in the highway construction industry. This indictment has "more factual detail" than the brief indictment in United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979) (per curiam), relied on by appellants. See United States v. Miller, 771 F.2d 1219, 1227 (9th Cir. 1985) (rejecting application of Cecil to a Sherman Act indictment).

Three weeks after the indictment, the government came forward and filed a bill of particulars listing eleven highway construction projects, twelve companies, and sixteen persons which the government claimed were part of the conspiracy. Thereafter, the government amended its bill of particulars by listing six highway construction projects involving the appellants directly and three others involving other co-conspirators. The indictment supplemented by the bill of particulars certainly put the defendants on notice of the charges against them. United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 734-35 (5th Cir. 1984) (highway bid rigging indictment specifying one project sufficient). Of course, it would have been preferable for the information in the bill of particulars to have been contained in the indictment as it apparently was in the sister case of United States v. Washita Constr. Co., 789 F.2d 809 (10th Cir. 1986). But this circuit has never held that a failure of an indictment to list specific transactions or name all co-conspirators renders an antitrust indictment invalid.

To the contrary, in United States v. Armour Co., 137 F.2d 269, 271 (10th Cir. 1943), the court held an indictment sufficient which charged a conspiracy to fix prices of hogs in the Oklahoma City market even though the dates of particular transactions or the names of the actors were not contained in the indictment. The indictment charged the offense and merely detailed the elements or the means by which the conspiracy to restrain trade operated. Id. at 271, 272 (Phillips, J., concurring). Likewise, in Frankfort Distilleries v. United States, 144 F.2d 824, 832 (10th Cir. 1944) (en banc), rev'd on other grounds, 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945), the court considered two Sherman Act indictments with multiple defendants. The cases concerned an alleged conspiracy to fix retail liquor prices and another to monopolize the retail grocery trade. In upholding the general nature of the indictments, the court commented that the indictments did not list: 1) the specific products involved, 2) the producers, wholesalers, and retailers affected, nor 3) the persons involved in the conspiracies. But that did not affect the sufficiency of the indictments:

[T]hese indictments each charge in general terms a conspiracy to restrain interstate trade and commerce, or monopolize such trade and commerce, as the case may be, substantially in the language of the Act. And if the allegations in respect to the manner and means of effecting the object of the combination and conspiracy are not set forth in sufficient detail, the remedy is to apply for a bill of particulars.

Id. at 832. The Tenth Circuit relied on Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), in which the Court restated that a conspiracy indictment must state a common intent, but that "[t]he particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of the conspiracy . . . is not essential to an indictment." Id. at 66, 62 S.Ct. at 463. For that type of specificity, a bill of particulars may be sought. Id. The Supreme Court has emphasized repeatedly that the test of the sufficiency of an indictment is not whether it could be more definite and certain, for that is the function of a bill of particulars. United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92 (1953); Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 40 L.Ed. 606 (1896); Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704 (1895) ("Few indictments . . . are so skilfully drawn as to be beyond the hypercriticism of astute counsel — few which might not be made more definite by additional allegations.").

The indictment in this case contains the elements necessary to allege an antitrust violation. In Metropolitan Enter., Inc., 728 F.2d at 452-53, we considered a similar indictment charging bidrigging on highway projects in Oklahoma and found that the indictment contained the necessary elements. It is the presence of the necessary elements which determines the sufficiency of the indictment. The essence of a § 1 Sherman Act violation is a combination and conspiracy in restraint of trade. Eastern States Lumber Ass'n v. United States, 234 U.S. 600, 609, 34 S.Ct. 951, 953, 58 L.Ed. 1490 (1914). The combination and conspiracy is prohibited without regard to the success or failure of the concerted activity. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224 n. 59, 60 S.Ct. 811, 845 n. 59, 84 L.Ed. 1129 (1940). Overt acts need not be alleged. Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 782, 57 L.Ed. 1232 (1913); Miller, 771 F.2d at 1226. The bill of particulars served to "offset a lack of factual specificity." Given the substantive law in this area, the mere furnishing of a bill of particulars in no way means the indictment was insufficient.

The appellants liken this case to Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); however, the offense involved in this case is far different. In this case, we are dealing with a per se antitrust violation against a backdrop of established law for evaluating the sufficiency of antitrust violations. Russell involved 2 U.S.C. § 192, which concerns the refusal by a congressional witness "to answer any question pertinent to the question under inquiry." The indictments in Russell did not identify the "question under inquiry," the subject under congressional inquiry. Russell, 369 U.S. at 752, 82 S.Ct. at 1041. This impeded the defense because a witness may refuse to answer questions which are not pertinent to the subject matter under inquiry. Id. at 755, 82 S.Ct. at 1042. After an exhaustive discussion of the substantive criminal law involved, the Court stated:

As has been pointed out, the very core of criminality under 2 U.S.C. § 192 is pertinency to the subject matter under inquiry of the questions which the defendant refused to answer. What the subject matter actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.

Id. at 764, 82 S.Ct. at 1047. The failure to specify the subject matter would force a defendant "to go to trial with the chief issue undefined." Id. at 766, 82 S.Ct. at 1048.

The indictment in this case is light years away from the indictment in Russell. As noted, the core of criminality under § 1 of the Sherman Act is conspiracy in restraint of trade. The indictment alleges a per se violation of the Sherman Act, namely a bid-rigging conspiracy concerning public highway construction. The government contended that the conspiracy was self-perpetuating and could be plugged into at any time by the participants. See United States v. Beachner Constr. Co., 729 F.2d 1278, 1283 (10th Cir. 1984) (the ability to rig bids due to "a tacit understanding based upon a long course of conduct" constitutes a single conspiracy in violation of § 1). The indictment does more than merely repeat the words of the statute; it describes this particular conspiracy. Unlike Russell, the chief issue in the first count of the indictment was clearly defined.

The fact that various highway projects were not listed in the indictment does not render it invalid. "[I]t is well settled that conspiracies under the Sherman Act are not dependent on any overt act other than the act of conspiring." Socony-Vacuum Oil Co., 310 U.S. at 224 n. 59, 60 S.Ct. at 845 n. 59. Thus, overt acts of the conspiracy in restraint of trade need not be specified in the indictment. Appellants assert that the time period covered in the indictment involved the awarding of over 700 projects by the Oklahoma Department of Transportation. Rec. vol. I, doc. 44 at 3. Even accepting this information, the identification of which projects were alleged to be a direct part of the conspiracy involving defendants was the function of a bill of particulars. In United States v. Fishbach and Moore, Inc., 576 F. Supp. 1384, 1388 (W.D.Pa. 1983), the defendant electrical contractors sought a bill of particulars specifying which of 150 electrical projects over a seven-year period were allegedly subject to a bid-rigging scheme. The government contended that individual projects were not relevant and that all bids during the period were the subject of the indictment. Id. After considering the nature of a Sherman Act conspiracy and the requirements of a sufficient indictment as stated in Russell, the district court required a bill of particulars to allow the defendants to better prepare for trial. Id. at 1389. Likewise, in United States v. Campbell Hardware, 470 F. Supp. 430, 433-34 (D.Mass. 1979), the district court recognized that great factual specificity is not required in Sherman Act indictments and declined to dismiss the indictment. A bill of particulars was the proper avenue for greater factual detail. Id.

In this case, the government voluntarily came forward with a bill of particulars and an amended bill of particulars specifying particular projects, companies and persons thought to be directly involved. It cannot be said that the appellants were unable to prepare a defense given the indictment; indeed, appellants do not so contend on appeal.

Nor does Russell support an argument that the indictment contravenes the fifth amendment by not assuring that appellants were convicted only upon facts found by the grand jury. Again, this argument misapprehends the nature of indictment in Russell. In Russell, the Court was insistent that an indictment under 2 U.S.C. § 192 "state the question under . . . inquiry as found by the grand jury." Russell, 369 U.S. at 771, 82 S.Ct. at 1051. The Court stated:

A grand jury . . . must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.

Id. at 770, 82 S.Ct. at 1050. This oft-quoted language read in context admits of no more than the requirement that an indictment must contain the essential elements of the offense as determined by the grand jury. In Russell, the indictments did not contain an essential element of the offense because they did not state the subject under congressional inquiry. The grand jury was required to make a determination of the subject under inquiry. Id. Thus, a grand jury must find all essential elements of the offense and recite these elements in the indictment.

All of the essential elements of a Sherman Act violation were contained in this indictment. The indictment did more than track the statutory language; it described a conspiracy in restraint of trade. Although we cannot say whether each project relied upon by the government was presented to the grand jury, there simply is no requirement that every factual detail of a charge be presented to a grand jury. The government is not so limited in its proof. Here, the grand jury found elements of a bid-rigging conspiracy involving the appellants. The indictment notified the appellants of the charge. Greater factual specificity was acceptably provided by the bill of particulars.

Violation of the Speedy Trial Act

The Speedy Trial Act, 18 U.S.C. § 3161-3174 (1982 Supp. II 1984) (the Act), requires that a defendant charged by indictment must be brought to trial within seventy days of the date the indictment is filed or the date the defendant first appears before a judicial officer of the court, whichever occurs later. Id. § 3161(c)(1). However, section 3161(h) provides for the exclusion of certain periods of delay in the calculation of the seventy-day term. Four types of delay, each treated by a distinct subsection of section 3161(h), are at issue in this appeal. In addition, various other provisions of the Act are implicated by the course of proceedings prior to trial.

The appellants argue that the trial court erred in granting a continuance in the prosecution of Mr. Philpot under section 3161(h)(8)(A). They do not dispute that some period of delay was proper while the government appealed the dismissal of all charges against the Corporation. However, the appellants maintain that only the application of section 3161(h)(1)(E) coupled with section 3161(h)(7) could stay the entire prosecution, and that not even the force of these provisions was sufficient to halt the proceedings for the period of delay actually incurred. The sum of the appellants' claim is that all charges in the indictment must be dismissed because the government failed to bring them to trial within the time allowed by section 3161(c)(1). By the appellants' calculations the last possible date on which either the Corporation or Mr. Philpot could have been brought to trial was February 17, 1986, two weeks before the jury in the case was actually empanelled.

The appellants are correct in their assertion that sections 3161(h)(1)(E) and (h)(7), not section 3161(h)(8)(A), governed the exclusion of certain periods of delay incurred in the prosecution of this case. Section 3161(h)(1)(E) tolled the speedy trial clock of the Corporation while the government's interlocutory appeal was before this court. Similarly, section 3161(h)(7) excluded several "reasonable" periods of delay that punctuated the prosecution of Mr. Philpot. Our conclusion on this point follows directly from our holding in United States v. Theron, 782 F.2d 1510 (10th Cir. 1986), a decision announced fifteen months after the district court granted the continuance in this case.

The appellant in Theron was one of twelve co-defendants indicted for conspiracy and mail fraud. When released on bail, ten of Mr. Theron's co-defendants moved for an "ends of justice" continuance under section 3161(h)(8) of the Speedy Trial Act due to the complexity of the case. Mr. Theron, who remained in custody, opposed the motion and filed his own motion under the Act to demand an immediate trial or dismissal of his indictment. The district court granted the co-defendants' motion for continuance but denied Mr. Theron's motion for trial or dismissal. Mr. Theron then sought a writ of mandamus from this court ordering the trial judge to begin trial or dismiss his indictment.

In reviewing Mr. Theron's claims, our examination of the text and the legislative history of the Speedy Trial Act led us to conclude that the district court had abused its discretion in granting a continuance under section 3161(h)(8).

It appears that the trial court relied upon three factors to justify the continuance: (1) the codefendants' need for preparation time; (2) the complexity of the case; and (3) the desirability of trying all defendants at once. In the context of this case these are either improper or insufficient factors to justify an ends-of-justice continuance under § 3161(h)(8).

Theron, 782 F.2d at 1512-13. With one addition, these are precisely the factors cited by the district court in this case for granting the government a continuance under section 3161(h)(8). See rec. vol. I, doc. 49.

In Theron, we noted that "[s]ubsection (h)(7) treats exclusion of time because codefendants are in the case, not subsection (h)(8)." Id. at 1513. Thus we concluded that "holding that a complex multiple defendant case is enough to toll the Act under subsection (h)(8) would emasculate the specific separate provision in subsection (h)(7). . . ." Id. Broadening this statement only slightly for the purposes of this case, we conclude that the misapplication of section 3161(h)(8) will undermine not only section (h)(7), but also section 3161(h)(1)(E).

Choosing the correct statutory provisions to regulate the periods of delay in this prosecution only begins the task before us. We still must examine the effects of these provisions to determine whether the appellants' conclusion, that all charges against them must be dismissed, is warranted. A temporary split in the appellants' joint trial proceedings occurred when the government filed an interlocutory appeal from the dismissal of charges against the Corporation and simultaneously moved for a continuance in the prosecution of Mr. Philpot during the pendency of the appeal. As a result, the legal consequences of the delay in the prosecution of the Corporation may appear unrelated to those arising from the delay in the pretrial proceedings against Mr. Philpot. But, in fact, the operation of the Act upon the prosecution of the Corporation determines the effect of delay on the government's case against Mr. Philpot.

The internal workings of the Act as applied to this case are complex. For the sake of clarity in the exposition of our analysis, we will address the application of the Act to the Corporation separately from its application to Mr. Philpot. We begin with the Corporation.

The appellants were arraigned on August 22, 1984, the same day the grand jury returned its indictment. The seventy-day period began to run for the Corporation the following day, August 23, 1984. United States v. Richmond, 735 F.2d 208 (6th Cir. 1984); United States v. Campbell, 706 F.2d 1138, 1139 (11th Cir. 1983). From that date until October 9, 1984, the day the district court dismissed all charges against the Corporation, forty-seven days elapsed. However, due to the filing of pretrial motions in the case, all but seven days of this period are excludable under section 3161(h)(1)(F). From October 10 to November 5, 1984, the period following the dismissal but preceding the government's appeal under 18 U.S.C. § 3731, twenty-six nonexcludable days elapsed. Thus, a total of thirty-three days passed before jurisdiction over the Corporation was withdrawn from the district court. The appeal was under the jurisdiction of this court from November 6, 1984, when the government filed its notice of appeal, until December 9, 1985, when we issued our mandate to the district court. This entire 398-day period is excludable under section 3161(h)(1)(E).

Upon our remand of the case to the district court, the government acquired an additional seventy days in which to bring the Corporation to trial. This period began December 10, 1985, the day after our mandate issued. By January 8, 1986, thirty days of the period had passed without any advance in the prosecution of the appellants. None of this time is excludable under the Act. On January 9, 1986, the district court held a pretrial status conference attended by Mr. Philpot and counsel representing both Mr. Philpot and the Corporation. At the conference, the government asked to submit an amended bill of particulars while the appellants requested time in which to submit additional pretrial motions. The court allowed the appellants fifteen days (until January 24, 1986) to file their motions and granted the government an additional ten days (until February 3, 1986) in which to respond. Joint Docketing Statement at 2-3. The status conference was "a proceeding concerning the defendant"; January 9 is therefore excludable under section 3161(h)(1). The question remains, however, whether all or even part of the twenty-five day period from January 10 until February 3, 1986, is excludable under that same section or any other provision of the Speedy Trial Act. Had the appellants submitted motions on January 9, the running of the seventy-day period would have been tolled for a period prescribed by section 3161(h)(1)(F). But on that date the appellants (and the government) merely expressed the intent to file additional documents; nothing was submitted to the court.

Section 3161(h)(1) does not specify the entire set of "proceedings concerning the defendant" that will result in excludable periods of delay. To the contrary, its introductory language states that delay may result from proceedings "including, but not limited to," those found in subsections 3161(h)(1)(A) through (h)(1)(J). Moreover, the Senate Report on the 1979 Amendments to the Act declares that "[t]he list [of proceedings concerning the defendant] is not intended to be exhaustive. It is representative of procedures of which a defendant might ligitimately [sic] seek to take advantage for the purpose of pursuing his defense." S.Rep. No. 212, 96th Cong., 1st Sess. 10 (1979).

The open-ended construction of section 3161(h)(1) and the invitation implicit in the legislative history of the Act cannot be ignored. We believe that a permissible addition to the list of proceedings that automatically toll the speedy trial clock would be a grant of time by the district court — in response to a written or oral request by the defendant — for the preparation of written pretrial motions. Such a grant of time undoubtedly allows the accused to better pursue a defense and is therefore consistent with the objective of section 3161(h)(1). But it serves another salutary purpose as well. The grant allows the district court to dispose of the difficult question of whether the defendant's interests are better served by an uninterrupted march to trial or by a pause in proceedings at the defendant's request for the preparation of pretrial motions. Because our addition to section 3161(h)(1) automatically suspends the seventy-day period, the burden of answering that crucial question lies with the defendant, the one best acquainted with the defensive strategy opposing the government's case. The defendant may either submit to the expeditious prosecution contemplated by the Act or elect to postpone his trial briefly to better formulate a defense; the choice remains entirely his. An additional benefit of removing the "burden of choice" from the court in this situation is that it precludes a later charge by the defendant that the court entered an arbitrary pretrial procedural ruling that prejudiced his ability to prepare his defense properly.

Our determination on this point does not ignore the Senate Judiciary Committee's reservations about enlarging the period automatically excluded by pretrial motions practice. Addressing changes in the computation of excludable delay under the 1979 amendments to section 3161(h)(8), the Committee noted that even though "some witnesses contended that all time consumed by motions practice, from preparation through their disposition, should be excluded, the Committee finds that approach unreasonable. This is primarily because, in routine cases, preparation time should not be excluded where the questions of law are not novel and the issues of fact simple." S.Rep. No. 96-212, 96th Cong., 1st Sess. 33-34. The Committee also urged the courts to exercise caution in granting an "ends of justice" continuance under section 3161(h)(8) of the revised statute to accommodate pretrial motions only "because it will be quite difficult to determine a point at which preparation actually begins." Id. at 34.

We note that, as enacted following the 1979 amendments, section 3161(h)(8)(B) tempers the stern tone of the Committee Report regarding the circumstances under which an "ends of justice" continuance may be granted. Subsection 3161(h)(8)(B)(iv) permits a continuance, even in the absence of an unusual or complex case or novel questions of fact or law, when a failure to grant one "would deny counsel for the defendant or the attorney for the government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence."

Moreover, under our modest expansion of the list of tolling proceedings, there can be no question about when preparation of pretrial motions actually begins. Routine drafting of a motion, unknown to the court until the document is filed, simply does not toll the speedy trial period. Either the trial judge accedes to a specific request for preparation or the trial date moves inexorably closer. The court need never fear the appearance of the defendant on the eve of trial, in an invitation to the government to postpone his prosecution, claiming that his preparation of pretrial motions began the moment after indictment.

Having constructed our rule, we now apply it to the case at hand. The period from January 10 to February 3, 1986, was expressly allocated by the district court in part to the defendants for drafting pretrial motions and in part to the government for filing its response. We hold that that entire span of time is excluded from the seventy-day period by section 3161(h)(1).

The remainder of the interval between the Corporation's arraignment and trial is easily accounted for. From February 4 to February 20, 1986, seventeen days elapsed, none of which are excludable. On February 21, the appellants filed their Motion to Dismiss for Violation of the Speedy Trial Act. The motion was taken under advisement by the court and denied on February 27. This seven-day period is excludable under section 3161(h)(1)(F). Finally, the three days from February 28 to March 2 are not excludable. Thus only fifty nonexcludable days elapsed in the entire prosecution of the Corporation, a total well within the limit prescribed by section 3161(c)(1). Finding no Speedy Trial Act violation in this segment of the case, we turn now to the period of delay associated with the prosecution of Mr. Philpot.

As explained above, the period in which the government's interlocutory appeal resided in this court from October 6, 1984, to December 9, 1985, was excludable under section 3161(h)(1)(E). We have established that the exclusion applied to the seventy-day account of the Corporation, a party to the interlocutory appeal. However, the issue remaining for us to resolve is the extent to which this exclusion and others incurred in the prosecution of the Corporation applied to Mr. Philpot, the Corporation's co-defendant under the indictment.

Section 3161(h)(7) authorizes an exclusion for "[a] reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not yet run and no motion for severance has been granted." In United States v. Theron, 782 F.2d 1510, 1514 (10th Cir. 1986), we stated that "[t]he obvious purpose behind the [section 3161(h)(7)] exclusion is to accommodate the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial." We further noted that to satisfy this purpose, "the courts generally have held that extensions sought by one codefendant toll the limitations period of all." Id. (emphasis added).

Indeed, every court of appeals that has construed section 3161(h)(7) in this context has concluded that an exclusion attributable to one defendant is applicable to all co-defendants. See United States v. Rush, 738 F.2d 497, 504 (1st Cir. 1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985); United States v. McGrath, 613 F.2d 361, 366 (2d Cir. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980); United States v. Novak, 715 F.2d 810, 815 (3d Cir. 1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984); United States v. Holyfield, 802 F.2d 846, 848 (6th Cir. 1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1298, 94 L.Ed.2d 154 (1987); United States v. Fogarty, 692 F.2d 542, 546 (8th Cir. 1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1434, 75 L.Ed.2d 792 (1983); United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir.), cert. denied, 469 U.S. 839, 105 S.Ct. 139, 83 L.Ed.2d 79 (1984); United States v. Struyf, 701 F.2d 875, 878 (11th Cir. 1983); United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980). The Guidelines to the Administration of the Speedy Trial Act (Guidelines) promulgated by the Judicial Conference of the United States have also endorsed this position. See Guidelines, Issuance # 36 (Nov. 10, 1984), at 57-58. We now adopt this interpretation and hold that, subject to a "reasonableness" limitation, an exclusion under section 3161(h)(1) attributable to one defendant is applicable to all co-defendants under section 3161(h)(7).

The appellants inform us that their review of the case law has not disclosed any precedent in which a delay of 398 days (the period from the first notice of appeal to the issuance of our mandate) has been found reasonable. We respond by pointing out that in deciding whether a period of delay is reasonable, it is essential to measure dimensions other than length. In Theron, we recognized that only a multifaceted inquiry is proper when we stated that "[i]n determining reasonableness of the period excluded, all relevant circumstances must be considered." Theron, 782 F.2d at 1514 (emphasis added).

The first guidepost in our attempt to determine reasonableness must be the legislative history of the Speedy Trial Act. In 1974 the Senate Judiciary Committee explained the function of section 3161(h)(7):

The purpose of the provision is to make sure that S. 754 does not alter the present rules of severance of codefendants by forcing the Government to prosecute the first defendant separately or to be subject to a speedy trial dismissal motion under section 3162.

S.Rep. No. 93-1021, 93d Cong., 2d Sess. 38 (1974). Five years later, while considering amendments to the Act, the Committee addressed arguments for enlarging the time in which a defendant must be brought to trial.

The observation has been made that the rigidity of the time limit will force the courts to disregard the principle of "judicial efficiency." Defendants who are properly charged with the joint commission of an offense should ordinarily be tried together to save time, expense and inconvenience of separate prosecutions. It has been reported that some trial judges have granted severances unnecessarily in multidefendant cases "so that a defendant whose case is moving slowly does not hold up the trial of his codefendants." In its own study the Department [of Justice] studied 180 multidefendant cases. It found no reflection of the occurrence of such incidents. Nor is there an indication of any such occurrence in the data compiled by the Administrative Office. If the Act has been so interpreted to require such a result, the Committee calls to the Senate's attention § 3161(h)(7), which provides specifically for exclusion of "a reasonable period of delay when the defendant is joined for trial with a codefendant as to whom time for trial has not yet run."

S.Rep. No. 96-212, 96th Cong., 1st Sess. 24-25 (1979).

The Committee's remarks support our statement in Theron that in the application of the "reasonableness" standard under section 3161(h)(7), judicial efficiency in the trial of multiple defendants is to be preferred to an inflexible adherence to the letter of the Speedy Trial Act. Theron, 782 F.2d at 1514. A more forceful yet equally valid expression of the point is the Eleventh Circuit's blunt comment that "[Congress] felt that the efficiency and economy of joint trials far outweighed the desirability of granting a severance where the criterion was simply the passage of time." United States v. Campbell, 706 F.2d 1138, 1142 (11th Cir. 1983).

We agree that "[w]hether the delay was reasonable will depend on the facts of each case." United States v. Dennis, 737 F.2d 617, 621 (7th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 215, 83 L.Ed.2d 145 (1984). Thus we must also ask whether the factual setting of this case dictates that it is reasonable to delay the trial of one defendant, Mr. Philpot, considering not only judicial economy but also procedural fairness to Mr. Philpot and the Corporation. To answer this question, we examine the role Mr. Philpot plays in the prosecution of the case and his status while awaiting trial.

The opening paragraphs of the indictment identify the three defendants as Mobile Materials, Inc., a corporation, Mobile Materials Company, a partnership, and Mr. Gerald O. Philpot, the president of the Corporation and the managing partner and president of the Partnership. These paragraphs disclose that Mr. Philpot is not only a principal defendant in the prosecution, he is also inextricably caught up in the business affairs of his co-defendants. The indictment also states that when reference is made to an act of either the Corporation or the Partnership, "the allegation shall be deemed to mean the "act . . . [of] its officers, directors, partners, agents, employees or representatives." Record, doc. 1, at 3 (emphasis added). Moreover, Mr. Philpot is named as a defendant in all seven counts of the indictment, in league with the Corporation (in counts two and three) or with both the Corporation and the Partnership (in counts one, four, five, six, and seven).

Whether the government's case unfolds in a single trial with multiple defendants or in a separate proceeding for each defendant, certain aspects of the prosecution remain constant: the government will recite a single factual history, put on a single array of evidence, and call a single group of witnesses. But most important to our inquiry here, whichever path the judicial process follows, the government will point to Mr. Philpot as a principal actor in every one of the allegedly illegal transactions it seeks to prosecute. These facts alone favor a delay in the prosecution of Mr. Philpot sufficient to allow a joint trial of all the defendants, United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986), but there are more facts to consider.

In our determination, we cannot ignore that prior to trial, including the lengthy period of the interlocutory appeal, Mr. Philpot was free on bond. In Theron, we commented that other "[c]ourts have excluded extended periods of delay when all defendants are out on bail." Theron, 782 F.2d at 1514 (emphasis added) (citing United States v. DeLuna, 763 F.2d 897, 922-23 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985)); accord United States v. Campbell, 706 F.2d 1138, 1142 (11th Cir. 1983); United States v. Edwards, 627 F.2d 460, 461 (D.C. Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980).

Nor can we overlook the fact that throughout the protracted history of this prosecution Mr. Philpot has never filed a motion for severance under Rule 14 of the Federal Rules of Criminal Procedure. See Appellants' Reply Brief at 18; cf. Theron, 782 F.2d at 1512. Normally, a motion for severance will adequately focus attention upon and allow the district court to relieve unfairness created by delay in favor of a joint trial.

In view of Mr. Philpot's prominent position in the Corporation and the Partnership, his essential participation in all trial proceedings, and his release on bail during trial, we find that the facts of this case argue persuasively for a delay in the prosecution of Mr. Philpot to allow a joint trial with his codefendants.

Finally, in determining the bounds of "a reasonable period," we consult the Guidelines to the Administration of the Speedy Trial Act, supra. The Guidelines recommend that in the situation we face here, a period of time excluded under section 3161(h)(7) has the following starting and ending dates:

Starting Date In the situation in which the (h)(7) exclusion is based on an exclusion applicable to a codefendant, the starting date is the starting date of the codefendant's exclusion.

Ending Date In the situation in which the (h)(7) exclusion is based on an exclusion applicable to a codefendant, the ending date is the ending date of the codefendant's exclusion.

Guidelines at 58-59.

While the Guidelines are not binding on this court, the formula they offer would allow us to avoid severance forced merely by the passage of time. As we have noted, this result is consistent with the purpose of section 3161(h)(7) as indicated by its legislative history and with the holdings of the courts of appeals that have extended the exclusion due to one defendant's delay to all co-defendants. It is also consistent with the goal of the entire Act, which is to provide certainty and fairness for defendants. See United States v. Campbell, 706 F.2d at 1143.

We conclude that a delay in the prosecution of Mr. Philpot sufficient to allow his joint trial with his co-defendants is reasonable under section 3161(h)(7). Our method of reaching this result is not one of mathematical calculation, but one that considers the purpose of the Speedy Trial Act, the facts of the case, the status of the defendant, and the recommendations of the Guidelines to the Administration of the Speedy Trial Act. As a result, we do not express section 3161(h)(7)'s "reasonable period" as a fixed span of time, the running of which forces dismissal of an indictment or the severance of a defendant. Rather, we declare that given the context of this case, the operation of section 3161(h)(7) has a twofold result: (1) a single speedy trial clock has been established to govern the timing of the prosecution of both the Corporation and Mr. Philpot, and (2) all excludable periods of delay attributable to the Corporation also apply to Mr. Philpot. Because no Speedy Trial Act violation occurred in the prosecution of the Corporation, none occurred in the synchronized prosecution of Mr. Philpot.

Allegations of Judicial Misconduct

The appellants' next argument takes issue with the trial judge's management of the case during trial and during the jury's deliberations. Specifically, the appellants raise three objections: (1) the court's evidentiary rulings were prejudicial to Mr. Philpot's efforts to show that he was not connected to a conspiracy to rig bids, (2) the court interjected unsolicited comments into the trial process, and (3) the court's post-trial admonitions to the jury coerced a verdict adverse to the appellants. We are unable to review these points in the absence of a transcript containing the statements on which the appellants rely. As noted, the responsibility for a proper designation of record lies with the parties, here the appellants, not with the court of appeals. United States v. Hart, 729 F.2d 662, 671 (10th Cir. 1984), cert. denied, 469 U.S. 1161, 105 S.Ct. 914, 83 L.Ed.2d 927 (1985). Moreover, because trial counsel indicates that he failed to object concerning the third point, we are unable to make a plain error assessment in the absence of a complete record.

Severity of the Sentence Imposed

The appellants argue strenuously that the sentence imposed by the district court is grossly disproportionate to others given for conviction of the same crimes and that the sentence ignores the "individual circumstances" of both Mr. Philpot and the Corporation. The appellants point out that Mr. Philpot received the most severe monetary penalty allowed under section 1 of the Sherman Act and that his term of imprisonment is far in excess of the average sentence imposed for similar Sherman Act violations. In the appellants' view, the sentence is more appropriate for a ringleader of bid-rigging on a multi-state scale and stands as "a further indication of the trial court's antipathy toward these Appellants, which . . . permeated the trial itself." Appellants' Brief in Chief at 46. With respect to the Corporation's sentence, the appellants tell us that the total fine of $510,000.00 is twenty percent greater than the net worth of Mobile Materials, Inc. when it was dissolved in 1982.

This court's most comprehensive statement on the prerogative of an appellate court to overturn a sentence was announced in United States v. Espinosa, 771 F.2d 1382 (10th Cir.), cert. denied, 474 U.S. 1023, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985). In that case we explained

that when a sentence is imposed within statutory limits, it is not ordinarily subject to appellate review. We will review the sentences only if the trial judge based them on "misinformation of constitutional magnitude" or failed to exercise any discretion in the sentencing process. Appellate review is appropriate "when a trial court fails to afford individual treatment, imposes a sentence mechanically, or refuses to consider all the mitigating circumstances." However "a sentencing judge has considerable discretion and leeway in determining, from the totality of the circumstances, the extent of the individual punishment to be meted out for each offense committed."

Id. at 1403 (citations omitted); see also United States v. Brown, 784 F.2d 1033, 1039-40 (10th Cir. 1986). Consistent with our holding in Espinosa, our examination of the sentencing phase of trial is limited to a review of the district court's exercise of discretion in meting out punishment.

The penalties imposed on Mr. Philpot for his bid rigging activity, both the three-year term of imprisonment and the $100,000 fine, are permitted under the Sherman Act, 15 U.S.C. § 1. The penalties imposed on Mr. Philpot for his false and misleading statements, both the three-year term of imprisonment and the $10,000 fine, are permitted under the controlling federal statute, 18 U.S.C. § 1001. Precisely the same is true of the sanctions imposed upon the Corporation; they are contemplated by the same statutory provisions.

Peering behind the facial legality of the sentences, as urged by the appellants and permitted under the Espinosa standard, we look for evidence that the district court failed to temper its judgment with consideration for the circumstances of the appellants. The appellants have provided us with nothing pertaining to this case to convince us that the district court imposed sentence mechanically or failed to consider all the materials submitted in mitigation. Thus we conclude that the court remained within the bounds of the discretion allowed it when sentencing defendants. Its ruling is affirmed.

The judgment of the district court is AFFIRMED.