U.S. v. Adu, 84-1106

• Decision Date: 16 September 1985
• Docket Number: No. 84-1106,84-1106
• Citation: 770 F.2d 1511
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Abraham ADU, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1511

770 F.2d 1511

UNITED STATES of America, Plaintiff/Appellee, v. Abraham ADU, Defendant/Appellant.

No. 84-1106.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 15, 1984.

Decided Sept. 16, 1985.

George O'Connell, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Donald S. Frick, Sacramento, Cal., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before SCHROEDER, FLETCHER and CANBY, Circuit Judges.

CANBY, Circuit Judge:

This case requires us to interpret the Speedy Trial Act provision, 18 U.S.C. Sec. 3161(c)(2), which prohibits the government from bringing a defendant to trial on criminal charges less than thirty days after his first appearance through counsel. The appellant, Abraham Adu, appeals from his conviction on multiple counts of aiding and assisting in the preparation and presentation of false income tax returns, in violation of 26 U.S.C. Sec. 7206(2). Adu argues that his trial proceeded in violation of the Speedy Trial Act because it began less than thirty days after his first appearance through counsel on a superseding indictment. ¹ We disagree with Adu's interpretation of the statute and therefore affirm his conviction.

Adu originally was indicted by the grand jury on July 27, 1983. The indictment charged that Adu had committed eighteen separate acts of criminal tax fraud in the course of his operation of a branch of the Universal Life Church in Sacramento, California. In eighteen instances Adu provided church contributors with receipts in excess of their actual contributions, and advised the contributors to use the receipts to claim fraudulent charitable deductions on their federal income tax returns. The indictment listed the date of each offense, the name of each recipient of a false receipt, the year in which the recipient fraudulently claimed a deduction, and the amount of each claimed deduction. Adu pleaded not guilty to the charges against him. After various pre-trial motions had been filed, the court appointed trial counsel for Adu on October 25, 1983. The court then set a trial date of January 24, 1984.

On January 13, 1984, the grand jury returned a superseding indictment against Adu. The superseding indictment was essentially identical to the original indictment. The only change was in Count Eight, where the grand jury corrected the names of one married couple who allegedly received a false receipt. Adu made his first appearance through counsel on the superseding indictment on January 17, when he was arraigned. A bench trial proceeded on February 3--less than thirty days after the arraignment. The court found Adu guilty of eleven counts of aiding and assisting in the preparation and presentation of false income tax returns.

Adu now contends that the government violated the Speedy Trial Act by bringing him to trial less than thirty days after he first appeared through counsel on the superseding indictment. ² He points to the language of United States v. Harris, 724 F.2d 1452 (9th Cir.1984), where we said that section 3161(c)(2) "guarantee[s] that the defendant is not forced to trial less than thirty days from the date on which the defendant first appears on the indictment on which the defendant ultimately goes to trial." 724 F.2d at 1455 (emphasis in original). Adu argues that under Harris he was entitled to a full thirty days between his first appearance on the superseding indictment and his trial, even though the superseding indictment did not materially change the original indictment.

We must evaluate the defendant's claim in light of the purpose of the Speedy Trial Act. Section 3161(c)(2) was enacted in order to ensure that criminal defendants would have a reasonable time for trial preparation. Congress intended to provide a defendant an adequate time in which to obtain counsel, and to allow counsel adequate time in which to prepare a defense. United States v. Daly, 716 F.2d 1499, 1505 (9th Cir.1983), petition for cert. dismissed, --- U.S. ----, 104 S.Ct. 1456, 79 L.Ed.2d 713 (1984). The statute establishes a minimum trial preparation period of thirty days between the defendant's initial appearance and his trial.

This court consistently has interpreted the speedy trial statute to advance its protective purpose. In United States v. Arkus, 675 F.2d 245 (9th Cir.1982), the government dismissed an indictment against four defendants upon the death of a key prosecution witness, and then reindicted one of the defendants nearly three months later. We held that the thirty day minimum trial preparation period applied following the reindictment because "the period between dismissal of the original indictment and reindictment may be considerable." Id. at 248. Then, in United States v. Harris, we decided that the defendant was entitled to a full thirty day trial preparation period following a superseding indictment even though the superseding indictment overlapped the original indictment. 724 F.2d at 1454-55. The superseding indictment in Harris arose from the same conduct described in the original indictment, but charged the defendant with a different offense. We held that the Speedy Trial Act did not permit the government to force the defendant to trial without allowing her at least thirty days to research the new charges and reevaluate her trial strategy.

In the instant case, a mandatory thirty day period between the defendant's first appearance on the superseding indictment and his trial would not promote the rights that the Speedy Trial Act was meant to protect. ³ Here the defendant was under indictment continuously from the time of his trial counsel's first appearance on his behalf until the trial itself, a period of over three months. He therefore cannot complain that he lacked notice that he was subject to criminal...