U.S. v. Asubonteng, 89-1512

• Decision Date: 16 April 1990
• Docket Number: No. 89-1512,89-1512
• Citation: 895 F.2d 424
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick ASUBONTENG, also known as Patrick Rivers, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 424

895 F.2d 424

UNITED STATES of America, Plaintiff-Appellee, v. Patrick ASUBONTENG, also known as Patrick Rivers, Defendant-Appellant.

No. 89-1512.

United States Court of Appeals Seventh Circuit.

Argued Sept. 25, 1989.

Decided Feb. 15, 1990.

Certiorari Denied April 16, 1990. See 110 S.Ct. 1830.

Daniel P. Bach (argued), John W. Vaudreuil, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.

Richard L. Zaffiro (argued), Appleton, Wis., for defendant-appellant.

Before BAUER, Chief Judge, and RIPPLE and MANION, Circuit Judges.

MANION, Circuit Judge.

Patrick Rivers, a/k/a Patrick Asubonteng, a/k/a James Patton, pleaded guilty to making false statements in a credit card application and to mail fraud in violation of 18 U.S.C. Secs. 1014 and 1341. Rivers reserved for appeal the court's denial of his motion to dismiss due to a violation of the Speedy Trial Act. We affirm.

I. BACKGROUND

On August 4, 1988, a complaint was filed in the United States District Court for the Western District of Wisconsin, charging Patrick Rivers with one count of making false statements in a credit card application in violation of 18 U.S.C. Sec. 1014. Rivers made his initial appearance on August 23, at which time counsel was appointed to represent him. Rivers pleaded not guilty at his arraignment and detention hearing on August 25. The magistrate, noting Rivers had employed five or more aliases and had changed his address in an attempt to elude authorities, determined Rivers to be a flight risk and ordered him detained pending trial. The trial date was subsequently set for November 7, 1988.

On October 5, 1988, the grand jury returned a superseding indictment charging Rivers with seven counts. Count I essentially duplicated the count charged in the original indictment. Counts II through V charged further violations of 18 U.S.C. Sec. 1014. Count VI charged Rivers with mail fraud in violation of 18 U.S.C. Sec. 1341. Count VII charged Rivers with using a false Social Security number with intent to deceive in violation of 42 U.S.C. Sec. 408(g)(2). The court granted the government's motion to dismiss the original indictment.

On October 13, 1988, Rivers was arraigned on the superseding indictment. He pleaded not guilty to all charges. The magistrate asked defense counsel if she could be prepared to try all counts on November 7, or whether she would prefer to try all the counts at a later date. A third option would be to have two trials trying the first count on November 7 and the remaining six counts at a later date. Defense counsel indicated she would like to review the discovery before making a decision. The magistrate scheduled a new pretrial conference for October 26, and gave Rivers until October 24 to file additional motions.

Rivers' counsel filed seven discovery motions on October 24. The magistrate ruled on these motions at the October 26 pretrial conference. During the conference, Rivers' counsel agreed to a consolidated trial on all counts on January 3, 1989. The magistrate subsequently entered an order excluding the period from November 7 through January 3 from the Speedy Trial Act computation for Count I.

On December 29, 1988, the defendant filed a motion to dismiss the entire superseding indictment due to an alleged violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161. The district court denied the motion. Rivers then pleaded guilty to Counts I and VI and agreed to pay restitution in accordance with a plea agreement. Rivers reserved his right to appeal the district court's ruling on the Speedy Trial Act motion.

Rivers now appeals the district court's Speedy Trial Act ruling. He also alleges for the first time that his case was prejudiced by ineffective assistance of counsel.

II. SPEEDY TRIAL ACT

A. Count I

The Speedy Trial Act provides that the government must bring a criminal defendant to trial no more than seventy days after the defendant's indictment or initial appearance before a judicial officer, whichever is later. 18 U.S.C. Sec. 3161(c)(1); United States v. Piontek, 861 F.2d 152 (7th Cir.1988). Thus the Speedy Trial Act clock began to run on the original count (later Count I of the superseding indictment) on August 23, the date of Rivers' initial appearance. Rivers contends that the January 3 trial date was too late under the Act.

Subsection (h)(8)(A) of the Speedy Trial Act provides that the court may exclude from the Speedy Trial Act computation

[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 justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.

The Act further specifies the factors which may be considered in granting a continuance:

The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:

* * * * * *

Whether the failure to grant such a continuance in a case which, taken as a whole ... 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....

No continuance ... shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.

18 U.S.C. Sec. 3161(h)(8)(B) and (C).

In his "Order Excluding Time Under Speedy Trial Act," the magistrate stated:

As to the original count of the indictment, I conclude that the period from November 7, 1988 to January 3, 1989, should be excluded for purposes of the speedy trial calculation on the basis of 18 U.S.C. Sec. 3161(h)(8)(A). I find that the ends of justice served by such exclusion outweigh the interest of the public and the defendant in a speedy trial, as the trial of all of the counts in the superseding indictment in a single trial will permit the more efficient and effective use of judicial time, and avoid the unnecessary and duplicative expenditure of effort, expense, witness and juror time, and the like which would result from two trials.

The magistrate noted that Rivers, through his counsel, agreed to the consolidation of the two trial dates on January 3. Rivers asserts that he did not knowingly waive his Speedy Trial Act rights. However, the record shows neither Rivers nor his counsel objected to the continuance of the trial on Count I; neither did they object to the magistrate's "Order Excluding Time Under Speedy Trial Act." Since Rivers did not raise this issue at the district court level, he cannot raise it on appeal unless the continuance or "Order Excluding Time" constitutes plain error. United States v. Samples, 713 F.2d 298, 302 (7th Cir.1983); United States v. Andrus, 775 F.2d 825, 852 (7th Cir.1985). "Plain error occurs when, in light of the entire record, [the trial court's order] had a probable impact upon the finding of guilty." Id. The continuance in this case simply resulted in Rivers' trial on Count I being moved from November 7 to January 3. We fail to see how this caused Rivers to plead guilty on December 29. Rivers does not specify any evidence, testimonial or otherwise, or any tactical advantage he lost by having his trial set at the later date. There was no plain error which would require us to review the magistrate's decision to exclude the period from November 7 to January 3 as to Count I.

Moreover, Sec. 3161(h)(8)(A) allows the magistrate to grant the continuance and exclude it from the Speedy Trial Act computation on his own motion, provided that he places in the record his reasons for doing so. United States v. Rivera Construction Co., 863 F.2d 293, 296 (3d Cir.1988). The Act does not require the consent of the defendant or his counsel. In granting the continuance the magistrate noted that "a single trial will permit the more efficient and effective use of judicial time, and avoid the unnecessary and duplicative expenditure of effort, expense, witness and juror time, and the like which would result from two trials." These are permissible considerations under Sec. 3161(h)(8)(C). Therefore we will not disturb the magistrate's decision absent an abuse of discretion and a showing of prejudice. United States v. Vega, 860 F.2d 779, 787 (7th Cir.1988). As we have already noted, Rivers was not prejudiced by the grant of additional time with which to prepare for trial on Count I. If anything, this was to his advantage. Not only did the defense counsel have almost two additional months with which to prepare, she also would not have to duplicate her efforts in two trials involving common factual backgrounds. These tactical considerations probably contributed to defense counsel's consent to consolidating the trials on January 3. Therefore we find that the magistrate was well within his discretion in deciding to continue the trial from November 7 to January 3, and to exclude the intervening period from the Speedy Trial Act computation.

Rivers has stipulated November 7 was "well within the 70 days provided by the Speedy Trial Act." Defendant-Appellant's Brief at 7. Since the period from November 7 until the trial date was properly excluded, we find there was no Speedy Trial Act violation as to Count I.

B. Counts II through VII.

The Speedy Trial Act clock began running on October 13 as to...