United States v. 2007-04-17 | 05-10629 | USA VKING | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-10629
Plaintiff-Appellee, D.C. No.
v.  CR-03-00215-WBS
DAVID R. KING, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Chief District Judge, Presiding
Argued and Submitted
October 16, 2006—San Francisco, California
Filed April 18, 2007
Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and
Stephen S. Trott, Circuit Judges.
Opinion by Judge O’Scannlain
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COUNSEL
James R. Greiner, Sacramento, California, argued the cause
for the defendant-appellant and filed a brief.
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Michelle Rodriguez, Assistant U.S. Attorney, Sacramento,
California, argued the cause for the plaintiff-appellee, and
filed a brief. McGregor W. Scott, United States Attorney, was
also on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
In this appeal, we must decide whether a criminal defen-
dant’s right to a speedy trial under either the Speedy Trial Act
or the Sixth Amendment was violated.
I
A
This case arises out of the investigation of a bank fraud and
identity-theft conspiracy in Sacramento, California. From
June 2002 until May 2003, David R. King conspired with
numerous other individuals to obtain stolen financial informa-
tion from bank insiders, including employees of the Golden
One Credit Union. King used such information to create
fraudulent checks drawn on actual accounts for distribution to
his co-conspirators, who were to cash the fake checks and
return most of the money to King.
During the course of investigating the conspiracy, officers
employed the services of a confidential witness to make tape
recordings of conversations with King, during which he pro-
vided her with fraudulent checks. A search warrant was exe-
cuted upon King’s residence in Sacramento, which he shared
with a roommate, Ken Shandy. As a result of such search,
additional evidence, including fraudulent checks and check-
making materials, was recovered by law enforcement.
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B
On May 8, 2003, a grand jury indicted King along with two
co-conspirators, Dorian Thomas and Daryen Simmons, for
multiple counts of conspiracy and bank fraud.1 On December
3, 2003, the government filed a superseding indictment (“first
superseding indictment”) which charged King with an addi-
tional twelve counts of bank fraud and also added a new co-
defendant, King’s roommate Shandy. Shandy was arraigned
on December 8, 2003, and King was arraigned on the first
superseding indictment on December 10, 2003. At that time,
the trial was continued to afford Shandy and his counsel time
to prepare a defense. By March 2004, Shandy decided to
plead guilty and to cooperate with the government.
Throughout 2004, there were numerous exclusions of time
and continuances granted by the district court, including
exclusions related to pre-trial motions filed by King. On
December 15, 2004, the district court denied King’s pre-trial
motion to suppress evidence obtained during the search of his
residence and vehicles. On December 16, 2004, the govern-
ment filed a new superseding indictment (“second supersed-
ing indictment”) which added no new charges but eliminated
reference to Shandy. On January 19, 2005, King made a
motion to dismiss the indictment on Speedy Trial Act
grounds. The government filed an opposition to that motion
on January 21, 2005, and on January 26, 2005, filed another
superseding indictment (“third superseding indictment”). The
motion to dismiss was denied by the district court on that
same day.
King’s first trial began on February 8, 2005. After several
1On July 8, 2003, another co-conspirator in the scheme, Jamine Alfred,
pled guilty to a misdemeanor count of bank larceny. On July 30, 2003, co-
defendant Simmons pled guilty to twelve charges contained in the original
indictment, as well as two additional counts. In November 2003, co-
defendant Thomas also decided to plead guilty.
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days of trial, King made a motion through his attorney for a
mistrial, claiming that he had witnessed jurors sleeping during
the trial. After the district court initially denied the motion,
additional information presented to the court suggested that
jurors had indeed been sleeping during the trial. King renewed
his motion for a mistrial, and because only eleven eligible
jurors remained, the district court granted the motion. The
retrial began on April 19, 2005, and on May 5, 2005, the sec-
ond jury found King guilty of all but three of the bank fraud
charges contained in the third superseding indictment.
King filed a timely notice of appeal.
II
A
King contends that his statutory right to a speedy trial was
violated.2 He argues that the superseding indictments were
attempts by the government to manipulate the seventy day
clock provided by the Speedy Trial Act (“STA” or “Act”), 18
U.S.C. § 3161(c)(1), and therefore did not alter the time frame
in which he was required to be brought to trial under the Act.
The government, in contrast, argues that when co-defendant
Shandy was added by way of the first superseding indictment,
King’s STA clock was measured with respect to Shandy’s
STA clock. It further argues that because King either asked
for, or agreed to, nearly all of the continuances, he cannot use
the STA as a sword. Finally, the government argues that there
is no evidence in the record that it manipulated the STA
clock.
2King also argues (1) that the district court erred in denying his motion
to suppress evidence obtained from two vehicles located at his residence,
and (2) that his second trial was barred by double jeopardy because the
prosecutor “goaded” him into making a motion for a mistrial. In a concur-
rently filed memorandum disposition, we deal with these contentions. See
United States v. King, No. 05-10629 (filed April 18, 2007).
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B
[1] Under the STA, a defendant must be brought to trial
within seventy days after the indictment or arraignment
(whichever comes later) of the last defendant.3 Henderson v.
United States, 476 U.S. 321, 323 n.2 (1986) (citing 18 U.S.C.
§ 3161(h)(7)); United States v. Morales, 875 F.2d 775, 777
(9th Cir. 1989). The STA mandates dismissal of the indict-
ment upon defendant’s motion if the seventy day limitations
period is exceeded. 18 U.S.C. § 3162(a)(2).
1
In determining whether the Act has been violated, we
“must first ascertain when the seventy day clock began run-
ning.” United States v. Wirsing, 867 F.2d 1227, 1229 (9th Cir.
1989). We must therefore consider the effect the superseding
indictments filed in this case had on the running of the STA
clock.
[2] We have held that the filing of a superseding indictment
will not automatically reset the STA clock where the new
indictment does not charge a new crime, but only corrects a
defect in the original indictment. See United States v. Karsse-
boom, 881 F.2d 604, 607 (9th Cir. 1989); United States v.
Clymer, 25 F.3d 824 (9th Cir. 1994). In Clymer, we stated that
“[a]lthough the grand jury returned a superseding indictment
on April 28, 1989, this action did not restart the Speedy Trial
Act clock. When a superseding indictment contains charges
which, under double-jeopardy principles, are required to be
joined with the original charges, Speedy Trial Act calcula-
tions begin from the date of the original indictment.” 25 F.3d
at 827 n.2 (emphasis in original). This rule “prevents the gov-
3We review the district court’s denial of the motion to dismiss on
Speedy Trial Act grounds de novo, United States v. Hall, 181 F.3d 1057,
1061 (9th Cir. 1999), but review findings of fact for clear error, United
States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993).
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ernment from circumventing the speedy trial guarantee by
restarting the speedy-trial clock by obtaining superseding
indictments with minor corrections.” United States v. Gon-
zales, 897 F.2d 1312, 1316 (5th Cir. 1990).
In Henderson, however, the Supreme Court was faced with
a situation where both new charges and an additional defen-
dant were added in a superseding indictment. 476 U.S. at 323.
There, an indictment was returned on July 30, 1980, charging
Henderson and two others with two counts of violations of 21
U.S.C. §§ 841(a)(1) and 846. The co-defendants were
arraigned on this indictment on July 31, 1980. On August 27,
1980, a five-count superseding indictment was returned
against petitioners and a fourth defendant, Peter Bell. Bell
was the last defendant arraigned on the superseding indict-
ment on September 3. In deciding when the STA clock began
to run for Henderson, the court stated in a footnote that, “[a]ll
defendants who are joined for trial generally fall within the
speedy trial computation of the latest codefendant.” Id. at 323
n.2. Therefore, “[o]nce Bell was joined with petitioners in the
September 3 superseding indictment, their 70-day period was
measured with respect to his.” Id. The Court did not think that
it mattered for STA purposes that Bell was severed from the
other co-defendants on November 1, 1982, as soon as trial
commenced.
[3] Although we have not squarely addressed the issue pre-
viously, other circuits that have considered the effect of the
filing of a superseding indictment adding a new defendant
have held that the superseding indictment restarts the STA
clock for all defendants. In United States v. Barnes, 251 F.3d
251 (1st Cir. 2001), the First Circuit held that a superseding
indictment returned the day before the speedy trial deadline,
containing the same charges and adding only one new, albeit
previously known, defendant served to restart the speedy trial
clock. Id. at 257. While acknowledging some ambiguity in its
prior decisions, the Barnes court found that “Henderson is the
beacon by which we must steer . . . Resetting the clock upon
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the return of the superseding indictment synchronized the
original defendant (Marla) with the newly-joined defendant
(Reynaldo) for purposes of the STA.” Id. at 258. The court
reasoned that, “[t]his sort of adjustment helps to ensure that
the STA will not become a vehicle for altering existing rules
of joinder and severance by compelling the government to
prosecute properly joined defendants piecemeal.” Id.
Although the superseding indictment was filed the day before
Barnes’s STA clock was to expire, the court could not con-
clude that the delay in adding the additional defendant was
unreasonable. Id. at 259.
The Second Circuit also has read Henderson as mandating
a single clock amongst all co-defendants, measured by the
last-added defendant. In United States v. Gambino, 59 F.3d
353 (2d Cir. 1995), the court stated that “the speedy trial
clock in cases involving multiple defendants begins with the
running of the clock for the most recently added defendant.”4
Id. at 362 (citing United States v. Pena, 793 F.2d 486, 489 (2d
Cir. 1986); United States v. Piteo, 726 F.2d 50, 52 (2d Cir.
1983)). The Second Circuit then noted that the “only inquiry
made in such multiple defendant cases is whether the delay is
‘reasonable.’ ” Id.
[4] We agree that Henderson mandated a single controlling
STA clock for all co-defendants in this situation.5 And criti-
4The court in Gambino ultimately decided that the exception for the
addition of co-defendants was not applicable because the superseding
indictment was filed after the defendant filed his motion to dismiss the
original indictment. 59 F.3d at 362.
5King’s reliance in his reply brief on United States v. Hall, 181 F.3d
1057 (9th Cir. 1999) is unavailing. There we found that the “ends of jus-
tice” were not served by allowing Hall to be carried along on a motion for
a continuance by a co-defendant who was then engaged in plea negotia-
tions with the government. Id. at 1062. But this is not a case like Hall
where the “underlying aim [of the delay] was to eliminate the need for a
joint trial by achieving a plea agreement between Nelson and the govern-
ment.” Id. We deal here with the addition of a new co-defendant, and
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cally, there is nothing in this record that suggests that the
delay of some seven months in adding Shandy was unreason-
able. See 18 U.S.C. § 3161(h)(7) (noting that only a “reason-
able period of delay” may be excluded). This case involved
a complex scheme of bank fraud, and the government’s case
was in flux during those seven months. A number of co-
conspirators, and both original co-defendants, chose to plead
guilty in the period between the original and first superseding
indictment. See supra note 1. These events allowed the gov-
ernment to develop, or at least to strengthen, its case against
Shandy. Further, contrary to King’s assertions, it was not a
foregone conclusion that Shandy would plead guilty instead
of proceeding to trial. There is no suggestion in the record that
the government adding Shandy by way of superseding indict-
ment was a purposeful manipulation of the STA clock.
Finally, against the reasonableness of the delay in adding
Shandy and the absence of bad faith on the part of the govern-
ment, we must weigh the reality that failing to synchronize
King’s STA clock with Shandy’s would have required the dis-
trict court to sever King’s trial. It is clear that the STA was
not intended to alter existing rules of joinder. As the Eleventh
Circuit has explained, “Congress recognized the utility of
multi-defendant trials to effectuate the prompt efficient dispo-
sition of criminal justice. It felt that the efficiency and econ-
omy of joint trials far outweighed the desirability of granting
a severance where the criterion was simply the passage of
time.” United States v. Varella, 692 F.2d 1352, 1359 (11th
Cir. 1982).
[5] We recognize that the Henderson rule will admit of
some exceptions. See Henderson, 476 U.S. 323 n.2 (noting
whether synchronizing the STA clocks of all co-defendants, where reason-
able, will help to ensure a joint trial. See United States v. Dota, 33 F.3d
1179, 1183 (9th Cir. 1994) (noting the established rule that the speedy trial
clock begins to tick on the date the last co-defendant appears and allowing
for exclusions of time for one co-defendant to apply to the clocks of all
defendants so as to ensure a joint trial).
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that “[a]ll defendants who are joined for trial generally fall
within the speedy trial computation of the latest codefendant”)
(emphasis added). However, we are satisfied here that the
delay in adding Shandy by way of a superseding indictment
was reasonable, was performed in good faith, and therefore
served to synchronize the STA clocks of the two remaining
co-defendants. Accordingly, King’s STA clock was measured
from the date Shandy was arraigned, December 8, 2003.
2
[6] From December 8, 2003, until King’s motion to dismiss
was filed on January 19, 2005, 416 days elapsed. Although
the Act mandates that a defendant be brought to trial within
seventy days, the Act also sets forth several types of exclud-
able delay. 18 U.S.C. § 3161(h). As relevant here, a district
court is required to exclude from speedy trial calculations: (1)
any “delay resulting from any pretrial motion, from the filing
of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion,” 18 U.S.C.
§ 3161(h)(1)(F); and (2) “[a]ny period of delay resulting from
a continuance granted by any judge on his own motion or at
the request of the defendant or his counsel or at the request
of the attorney for the Government, if the judge granted such
continuance on the basis of his findings that the ends of jus-
tice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial,” 18 U.S.C.
§ 3161(h)(8)(A).
a
On December 10, 2003, both Shandy and King appeared
before the district court along with their respective attorneys.
On that date, based upon the complexity of the case, the addi-
tion of a new defendant, the recent involvement of a new
attorney, and the request of the defendants, District Judge
Shubb granted excludable time under the STA and Local
Code T-4 and T-2 from December 10, 2003, until January 28,
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2004. On January 28, 2004, attorneys for both Shandy and
King filed declarations for exclusions of time, which the court
granted until March 31, 2004. On March 31, Judge Shubb
again granted excludable time, this time to June 22, 2004. Id.
On June 16, at a status conference, excludable time was
extended until July 28, 2004. Id. At the July 28, 2004, status
conference, at the request of King again, the district court
granted excludable time until September 8, 2004. Such exclu-
sion was extended to October 6, 2004 when a status confer-
ence was held, during which King’s defense counsel was to
submit a proposed order and affidavit regarding excludable
time.
[7] All of these findings of excludable time were reason-
able. The case was in flux during this time period. Shandy
eventually decided to plead guilty to the charges against him
in March 2004. In accordance with his plea, he agreed to tes-
tify against King, which certainly added an additional hurdle
to the presentation of King’s defense. Finally, King obtained
new counsel during this time period. There were over 2,500
pages of discovery in this case, and many hours of recorded
conversations. It was certainly reasonable for the court to find
an exclusion of time to permit King’s new counsel to get up
to speed on the facts of the case.
b
[8] On October 6, 2004, King filed notice of motion to sup-
press evidence, along with several other motions not relevant
on appeal. The district court ruled upon these motions on
December 15, 2004. “When delay results from the filing of a
pretrial motion, § 3161(h)(1)(F) provides an exclusion for ‘all
time between the filing of a motion and the conclusion of the
hearing on that motion, whether or not a delay in holding that
hearing is reasonably necessary.’ ” Clymer, 25 F.3d at 829
(quoting Henderson, 476 U.S. at 330). Thus, the period of
time from October 6 to December 15 is excludable under 18
U.S.C. § 3161(h)(1)(F).
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c
[9] From December 16 until January 18, no exclusions of
time were granted; accordingly, thirty-four days ran off the
STA clock. Thus, one day ran off the STA clock from the date
Shandy was arraigned, December 8, 2003, until the first
exclusion of time was granted on December 10, 2003. No
time ran off the clock from December 10, 2003, until Decem-
ber 16, 2004, because the exclusions of time requested by the
parties and granted by the district court were reasonable.
Thus, only thirty-five non-excludable days ran off King’s
STA clock and the seventy day limit of the STA was not vio-
lated.
III
A
King also invokes his Constitutional right to a speedy trial,
as secured by the Sixth Amendment.6 The Speedy Trial Act
“was enacted in part out of dissatisfaction with sixth amend-
ment speedy trial jurisprudence, and to put more life into
defendants’ speedy trial rights.” United States v. Nance, 666
F.2d 353, 360 (9th Cir. 1982). Thus, we have recognized that
“it will be an unusual case in which the time limits of the
Speedy Trial Act have been met but the sixth amendment
right to speedy trial has been violated.” Id.; see also United
States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995) (“Speedy
Trial Act affords greater protection to a defendant’s right to
a speedy trial than is guaranteed by the Sixth Amendment,
and therefore a trial which complies with the Act raises a
strong presumption of compliance with the Constitution.”).
[10] The factors to be considered in the Sixth Amendment
6We review the district court’s denial of the motion to dismiss on Sixth
Amendment grounds de novo, but review findings of fact for clear error.
Beamon, 992 F.2d at 1012.
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analysis are: (1) the length of the delay; (2) the reason for the
delay; (3) the defendant’s assertion of the right; and (4) the
prejudice resulting from the delay. Barker v. Wingo, 407 U.S.
514, 531-33 (1972). The reason for the delay, however, is the
“focal inquiry.” United States v. Sears, Roebuck & Co., 877
F.2d 734, 739-40 (9th Cir. 1989).
B
[11] The district court applied such factors and found that
King’s Sixth Amendment right to a speedy trial had not been
violated. As to the first factor, we must consider whether the
time from indictment to trial crossed the line “dividing ordi-
nary from ‘presumptively prejudicial,’ ” which is normally
considered to be approximately a year. Doggett v. United
States, 505 U.S. 645, 652 (1992). Here, King was originally
indicted in May 2003 for criminal acts arising out of a con-
spiracy beginning in June 2002. His trial was not held until
February 2005. Thus, nearly two years elapsed from the origi-
nal indictment to his trial. Nonetheless, the length of the delay
was “not excessive” and this factor does not seriously weigh
in King’s favor. See United States v. Gregory, 322 F.3d 1157,
1162 (9th Cir. 2003) (“Given that the [22-month] delay was
not excessively long, however, it does not weigh heavily in
Gregory’s favor.”); United States v. Lam, 251 F.3d 852, 857
(9th Cir. 2001) (although an approximately 15-month delay
was long enough to trigger Barker inquiry, it only “militate[d]
slightly in Lam’s favor”); Beamon, 992 F.2d at 1014 (17-
month and 20-month delays between indictment and arrest
were not “great”).
[12] As in Lam, we believe that the second factor, the rea-
son for the delay, which is the focal point of the inquiry,
weighs heavily against finding a Sixth Amendment violation.
251 F.3d at 857. The district judge granted continuances at the
request of King and his attorney. See United States v. Shetty,
130 F.3d 1324, 1331 (9th Cir. 1997) (reversal of conviction
on speedy trial grounds not warranted where defendant stipu-
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lated to continuances). The district judge even sat down with
King and explained the right to a speedy trial to him, after
which King agreed to continuances. Further, the case was
extraordinarily complex, involving what was essentially a
hub-and-spoke banking and identity-theft conspiracy with
numerous defendants and alleged co-conspirators. Finally, we
note that King substituted a new attorney halfway through the
proceedings, which necessarily required the judge to allow
extra time for new counsel to prepare.
[13] The third factor of Barker also does not strongly coun-
sel in favor of finding a Sixth Amendment violation.
Although King at times asserted his right to a speedy trial, at
other times he acquiesced in and sought continuances and
exclusions of time. See United States v. Loud Hawk, 474 U.S.
302, 314 (1986) (although defendant repeatedly asserted his
speedy trial right, “[t]hese assertions . . . must be viewed in
the light of [his] other conduct”).
[14] Finally, King is not able to point to any specific preju-
dice that arose from the delay. Indeed, unlike in Clymer, King
was not incarcerated during the pendency of the pre-trial
delay. See Clymer, 25 F.3d at 832. While King is correct that
he need not make an “affirmative demonstration of preju-
dice,” Moore v. Arizona, 414 U.S. 25, 26 (1973), it is also
clear that he cannot rely solely on the mere “passage of time.”
United States v. MacDonald, 456 U.S. 1, 8 (1982).
[15] We conclude that the district court did not err in refus-
ing to dismiss the indictment on Sixth Amendment speedy
trial grounds.
IV
The district court did not err in denying the motion to dis-
miss the indictment on Speedy Trial Act or Sixth Amendment
grounds. Accordingly, King’s conviction is
AFFIRMED.
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