United States v. Nickerson

• Citation: 731 F.3d 1009
• Decision Date: 01 October 2013
• Docket Number: No. 12–10534.,12–10534.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Cassandra B. NICKERSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

731 F.3d 1009

UNITED STATES of America, Plaintiff–Appellee,

v.Cassandra B. NICKERSON, Defendant–Appellant.

No. 12–10534.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Sept. 12, 2013.

Filed Oct. 1, 2013.

Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division; and Owen P. Martikan (argued), Assistant United States Attorney, United States Attorney's Office, Northern District of California, San Francisco, CA, for Plaintiff–Appellee.

Paul F. DeMeester (argued) and Treva Stewart, San Francisco, CA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of California, Richard Seeborg, District Judge, Presiding. D.C. No. 3:08–cr–00192–RS–1.

Before: J. CLIFFORD WALLACE and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.^*

OPINION

BERZON, Circuit Judge:

Appellant Cassandra B. Nickerson appeals from the District Court's affirmation of her conviction before a Magistrate Judge for three Class B misdemeanors: operating a motor vehicle while under the influence of alcohol in violation of 36 C.F.R. § 1004.23(a)(1); operating a motor vehicle with a blood alcohol content over 0.08% in violation of 36 C.F.R. § 1004.23(a)(2); and failure to maintain control of a vehicle in violation of 36 C.F.R. § 1004.22(b)(1). We affirm her conviction.

I. Background

On January 6, 2008, at about 10:20 p.m., United States Park Police Officer April Ramos responded to an incident involving a car hitting a curb in the Presidio of San Francisco. At the scene, Officer Ramos saw Nickerson standing next to a disabled vehicle. After Nickerson failed field sobriety tests and preliminary blood alcohol screening tests, Officer Ramos placed her under arrest and transported her to the police station.

At the police station, Officer Ramos conducted a breath test on Nickerson and then placed her in a holding cell. Unbeknownst to Nickerson, a motion-sensitive surveillance camera captured her time in the holding cell. There was no sign posted to warn individuals in the holding cell that they were being taped, and the camera was not readily visible to the cell's occupants. A real-time monitor was available to all officers on duty, including both male and female officers.

The Park Police had no written standards to guide their exercise of discretion with respect to video surveillance. Other police stations across the country, however, use motion-sensitive video cameras, such as the one in the cell in which Nickerson was held, for several purposes. These include for medical and security concerns, such as if a detainee attempts suicide, if a physical altercation occurs between detainees, or if a detainee becomes progressively more intoxicated or sick in the holding cell and needs medical attention. The cameras also serve to deter abusive police conduct because, if police officers are aware that the cells are being monitored, they are less likely to commit physically abusive acts towards detainees.

The holding cell, which was about six feet by three feet in size, contained a toilet that was clearly visible through a glass window in the cell's door. While Nickerson was in the holding cell, she used the toilet. This use was recorded by the motion-sensitive video camera. On the video footage, Nickerson could be seen looking toward the glass window while she was using the toilet. She said she was apprehensive that someone might pass by in the hallway and see her through the glass window.

Nickerson was cited, released, and driven home by an officer at about 12:30 a.m., about two hours after Officer Ramos originally made contact with her.

On March 25, 2008, the United States charged Nickerson by information with operating a motor vehicle while under the influence of alcohol in violation of 36 C.F.R. § 1004.23(a)(1), operating a motor vehicle with a blood alcohol content over 0.08% in violation of 36 C.F.R. § 1004.23(a)(2), and failure to maintain control of a vehicle in violation of 36 C.F.R. § 1004.22(b)(1).

Nickerson and her attorney made arrangements to review the video surveillance as part of the discovery process. They expected to see footage of her breath test at the police station. They said they were surprised and outraged to see that the videotape showed Nickerson using the toilet in the holding cell.

Thereafter, Nickerson filed a motion to dismiss all charges against her on the basis that the videotaping “shocks the conscience” and warranted dismissal under Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The Magistrate Judge granted the motion and dismissedthe case. Although the Magistrate Judge acknowledged there was no evidentiary or investigative value to the videotaping, he concluded that, because the government had not articulated any justification for the recording, the violation of privacy shocked the conscience and dismissal of the criminal charges was warranted.

The government appealed the dismissal to the District Court. On appeal, the government submitted a supporting affidavit from Officer Ramos, in which she explained, among other things, why video surveillance is conducted in holding cells. On June 24, 2009, the District Court granted the appeal, finding no nexus between the videotaping and prosecution of Nickerson, and reinstated the charges.

No further proceedings took place until November 23, 2009. Thereafter, Nickerson again moved to dismiss the charges. She argued, among other things, that dismissal was required under certain provisions of the Speedy Trial Act, specifically 18 U.S.C. §§ 3161(d)(2) and 3162, based on the failure to commence trial within seventy days of the date on which the charges were reinstated. All three crimes with which Nickerson was charged and convicted are Class B misdemeanors. Under federal law, unless the section defining the offense specifically classifies it otherwise, a crime is “a class B misdemeanor” if the maximum sentence associated with it is “six months or less but more than thirty days.” 18 U.S.C. § 3559(a)(7). Each of the charges against Nickerson carried punishment of “a fine as provided by law, or by imprisonment not exceeding 6 months, or both,” 36 C.F.R. § 1001.3, and were not classified as other than a Class B misdemeanor in the sections in which they were defined, 36 C.F.R. §§ 1004.22, 1004.23. The Magistrate Judge denied the speedy trial motion, holding that the Speedy Trial Act does not apply to Class B misdemeanors.

Following a two-day bench trial, Nickerson was convicted of all three charges. The Magistrate Judge sentenced her to three years' probation, a $30 special assessment, and either a $1,000 fine or 125 hours of community service.

Nickerson timely appealed to the District Court. In her appeal, she challenged the denial of her speedy trial motion, the sufficiency of the evidence against her, and denial of her motion to dismiss under Rochin. The District Court denied her motion and affirmed her conviction, holding that the Speedy Trial Act did not apply to the charges against Nickerson and that the evidence was sufficient to support the charges. Nickerson timely appealed.

II. Discussion

A. Dismissal under the Speedy Trial Act

Nickerson argues that the charges against her should have been dismissed pursuant to 18 U.S.C. §§ 3161(d)(2) and 3162 of the Speedy Trial Act. The District Court's ruling against Nickerson on this issue—that the Speedy Trial Act does not apply to Class B misdemeanors—is grounded in an interpretation of the Speedy Trial Act and so is reviewed de novo. See United States v. Medina, 524 F.3d 974, 982 (9th Cir.2008).

Title 18 U.S.C. § 3161(d)(2) provides in full,

If the defendant is to be tried upon an indictment or information dismissed by a trial court and reinstated following an appeal, the trial shall commence within seventy days from the date the action occasioning the trial becomes final, except that the court retrying the case may extend the period for trial not to exceed one hundred and eighty days from the date the action occasioning the trial becomes final if the unavailability of witnesses or other factors resulting from the passage of time shall make trial within seventy days impractical. The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section. The sanctions of section 3162 apply to this subsection.

Failure to bring the defendant to trial within these time limits results in dismissal of the indictment. See18 U.S.C. § 3162(a).¹

Nickerson is correct that § 3161(d)(2) does not itself use the word “offense,” which the Act defines to exclude Class B misdemeanors. See18 U.S.C. § 3172(2) (“the term ‘offense’ means any Federal criminal offense which is in violation of any Act of Congress and is triable by any court established by Act of Congress (other than a Class B or C misdemeanor or an infraction, or an offense triable by court-martial, military commission, provost court, or other military tribunal)”). When read in the context of the statute as a whole, however, § 3161(d)(2) clearly does apply only to “offenses” and so not to Class B misdemeanors.

Paragraph (c)(1) creates a time limit by which a trial must commence after a defendant initially is charged with an “offense.” The provisions that follow subsection (c) create similar time limits where the initial indictment or information is dismissed and then new charges are filed, or the initial indictment or information is reinstated on appeal, or a retrial is required after a successful appeal or collateral attack. See18 U.S.C. § 3161(d), (e). Read together, these provisions simply carry the original requirements for timely prosecution through the subset of situations in which an intervening appeal or dismissal has somehow “reset the clock.” The provisions in (d), then, do not expand beyond “offenses” the category of charges to which the time requirements apply. That this is...