U.S. v. Carter, s. 85-3075
| Citation | 804 F.2d 508 |
| Decision Date | 13 November 1986 |
| Docket Number | 85-3080 and 85-3082,Nos. 85-3075,s. 85-3075 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Freeman D. CARTER, a/k/a Daniel Brady, James Patrick Daly, and William Carson, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Tom Hillier, Federal Public Defender, Frederick D. Leatherman, Jr., Terrence Kellogg, Seattle, Wash., for plaintiff-appellee.
Tom Wales, Asst. U.S. Atty., Seattle, Wash., for defendants-appellants.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT, TANG and REINHARDT, Circuit Judges.
In this appeal from convictions for conspiracy and interstate transportation of stolen record albums, we have these issues:
(1) Were five counts multiplicitous?
(2) Was the Speedy Trial Act violated?
(3) Were harsher sentences imposed because the defendants exercised their right to stand trial rather than accept a proposed plea agreement?
Appellants stole over 68,000 record albums from stores in the Seattle-Tacoma area over a two-year period. The stolen records were then boxed and shipped to Chicago or Boston. At least 124 separate shipments were made to those cities.
The conspirators were arrested and charged on November 28, 1984 in a six-count indictment. Count I charged conspiracy to violate 18 U.S.C. Sec. 2314. Counts II Not guilty pleas were entered and trial was set for January 14, 1985. On the trial date, the defendants pleaded guilty under an agreement. The court ordered a presentence report and scheduled sentencing. On the day of sentencing, the court stated the plea agreement would be acceptable only if restitution were to be required. Sentencing was rescheduled to allow time for calculation of the amount of restitution and for reconsideration of the pleas.
through VI charged substantive violations of Sec. 2314. Shipments were aggregated so that each count would satisfy the statute's $5,000 jurisdictional requirement.
On March 6, 1985, the appellants withdrew their guilty pleas. After ruling on pretrial motions on March 8, the court scheduled trial for March 11. Conflicting schedules between defense counsel and the court calendar forced a continuance until April 22. Due to unanticipated delay caused by an intervening trial, the trial could not begin until April 30, 74 days after indictment.
The jury convicted the appellants on all six counts. They were sentenced to five years probation on Count I and ten-year concurrent terms for each of Counts II through VI. The court ordered each defendant to pay $148,171.83 in restitution.
Each issue presented on appeal raises either questions of law or mixed questions of law and fact. We review these de novo. See United States v. Gallardo, 773 F.2d 1496, 1501 (9th Cir.1985); United States v. McConney, 728 F.2d 1195, 1201, 1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
The government aggregated the shipments of stolen property to Boston in Count II. It aggregated the Chicago shipments in Counts III through VI. The Chicago counts were divided chronologically. Each substantive count satisfied the $5,000 jurisdictional requirement. 1
Appellants contend that the aggregation and subdivision of shipments into several counts is multiplicitous. They concede that, under Schaffer v. United States, 362 U.S. 511, 517-18, 80 S.Ct. 945, 948-49, 4 L.Ed.2d 921 (1960), related shipments may be aggregated to meet Sec. 2314's jurisdictional amount, but argue that only one substantive count could have been charged. 2 The government contends that each shipment is a separate transportation chargeable in a separate count but for the jurisdictional amount. It relies on Schaffer and the definition of value in 18 U.S.C. Sec. 2311 to support aggregation of shipments and subdivision into several counts. Section 2314 provides in relevant part:
Whoever transports in interstate or foreign commerce any goods ... of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.
18 U.S.C. Sec. 2314.
The law is clear that the values of separate offenses may be aggregated. Section 2311 defines value in the aggregate. Further, the Supreme Court has allowed aggregation of transportations within a count if a series of shipments is so related that it may be charged as a single offense. Schaffer, 362 U.S. at 517, 80 S.Ct. at 949. The Court said:
A sensible reading of the statute properly attributes to Congress the view that where the shipments have enough relationship so that they may properly be charged as a single offense, their value may be aggregated. The Act defines 'value' in terms of that aggregate. The legislative history makes clear that the value may be computed on a 'series of transactions.'
Id. (footnotes omitted); see also United States v. Belmont, 715 F.2d 459, 462 (9th Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 679, cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984).
But the question we face is whether aggregable offenses also may be subdivided into separate charges. The shipment of stolen record albums was a series of transfers. Each of the 124 shipments is a separate chargeable offense under Sec. 2314 but for the jurisdictional amount.
Other circuits have held that each transportation is a separate chargeable offense if it meets the jurisdictional amount. United States v. Lagerquist, 724 F.2d 693, 694-95 (8th Cir.1984) (), appeal after remand, 758 F.2d 1279, 1281-82 (8th Cir.1985) (); United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983) ().
We have held that transportation of stolen checks on different occasions gives rise to separate counts, and that it is appropriate to aggregate the values within each count to meet the jurisdictional amount. United States v. Bell, 742 F.2d 509, 511 (9th Cir.1984). "[T]he indictment subdivides one overall scheme (the interstate transport ... of stolen money orders) into its constituent parts (interstate transport on four different days)." Id. We find the charging scheme here to be a logical extension of present case law.
The government divided 124 shipments into five counts which each include a series of related transactions and which each meet the jurisdictional amount. While all the shipments are part of one overall scheme, the government is not limited to charging only one count of violating Sec. 2314. 3
The indictment did not divide a single transportation into multiple offenses, but rather treated each series of transportations occurring within a specified time period as a separate offense. Since the appellants concede the logic of charging the transportations to different cities as different offenses, and since Bell allows subdivision of an overall scheme into its constituent parts, we have no difficulty endorsing the subdivision of the overall scheme in this case on a chronological basis. The district court correctly ruled that the counts were not multiplicitous.
Appellants claim that their Speedy Trial Act (STA) rights have been violated because of the 74-day delay after indictment. The court denied their motions to dismiss for STA violations, ruling that the speedy trial clock (STC) had started again under 18 U.S.C. Sec. 3161(i) when they withdrew their guilty pleas.
Section 3161(i) provides:
If trial did not commence within the time limitation specified in section 3161 because the defendant had entered a plea of guilty or nolo contendere subsequently withdrawn to any or all charges in an indictment or information, the defendant shall be deemed indicted with respect to all charges therein contained within the meaning of section 3161, on the day the order permitting withdrawal of the plea becomes final.
18 U.S.C. Sec. 3161(i).
The Act requires that an indicted defendant be tried within 70 days from the filing of the indictment or the first judicial appearance, whichever is later. 18 U.S.C. Sec. 3161(c)(1). The significant dates are these:
November 28, 1984 Indictment
January 14, 1985 Original trial date; defendants
entered guilty pleas
February 19 Court informs defendants that plea
agreement will be accepted only if
it includes restitution; court gives
them an opportunity to reconsider
their pleas
March 6 Guilty pleas withdrawn
April 22 Second trial date; unanticipated
delay caused by intervening trial
forces continuance
April 26 70th day after indictment
April 30 Trial commenced
Appellants argue that this case is governed by Sec. 3161(h)(1)(I), which provides:
(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to-- ...
(I) delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government; ....
It permits exclusion of time resulting from the court's...
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