U.S. v. Clay

• Decision Date: 30 January 1991
• Docket Number: 90-30190,Nos. 89-30328,s. 89-30328
• Citation: 925 F.2d 299
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kelly CLAY, Defendant-Appellant. (Two Cases)
• Court: U.S. Court of Appeals — Ninth Circuit

Page 299

925 F.2d 299

UNITED STATES of America, Plaintiff-Appellee, v. Kelly CLAY, Defendant-Appellant. (Two Cases)

Nos. 89-30328, 90-30190.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1990.

Decided Jan. 30, 1991.

Mark R. Fuller, Idaho Falls, Idaho, for defendant-appellant.

Monte J. Stiles, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before FLETCHER, FARRIS and BOOCHEVER, Circuit Judges.

FARRIS, Circuit Judge:

In this consolidated appeal, Kelly Clay argues that the district court erred in finding no excusable neglect for his failure to file timely notice of appeal. He also appeals his conviction and sentence for conspiracy to distribute cocaine. We find that we have jurisdiction of the appeals; we affirm in part but remand for resentencing.

From 1986 to 1988, the Drug Enforcement Agency investigated Clay and others for cocaine trafficking in Southeastern Idaho. After a series of undercover meetings and cocaine purchases, agents arranged for an informant to buy several kilograms of cocaine from Clay on March 24, 1987.

At the sale, Clay delivered approximately one kilogram of cocaine in exchange for $50,000. He was arrested and indicted for distribution of cocaine. He pleaded guilty and was sentenced to ten years in prison and a $10,000 fine.

On January 15, 1988, Clay was indicted for three more counts of distribution of cocaine and for conspiracy to distribute cocaine continuing from 1976 up to the date of filing. The government repeated the charges against Clay in a superceding indictment on February 11, 1988. On October 24, 1988, Clay pleaded guilty to involvement in the conspiracy from 1976 until November 1, 1987. The plea was conditioned on his right to move to dismiss.

Clay moved to dismiss on November 29, 1988, on the grounds that the indictment resulted from vindictiveness and violated the Speedy Trial Act. The government dismissed the cocaine distribution counts on June 13, 1989. The court denied Clay's motions to dismiss the conspiracy count on July 31, 1989, and sentenced Clay on September 27, 1989 to ten years in prison to run concurrently with his prior sentence plus four years supervised release.

1. Notice of appeal

The district court entered final judgment against Clay on September 27, 1989. He thereafter had ten days to file notice of appeal. Fed.R.App.P. 4(b). The tenth day after entry of judgment was Saturday, October 7, and the following Monday, October 9, was Columbus Day, a legal holiday. Clay's last day to file timely notice of appeal was Tuesday, October 10. Fed.R.App.P. 26(a).

Clay's attorney was located in Idaho Falls, Idaho. He telephoned the court clerk in Boise on October 9, and asked whether he could file notice of appeal that day. The clerk told him that he could file the document in Pocatello, Idaho, the next day, but that the date of filing would be the date that the clerk in Boise received the document.

Clay's lawyer transmitted the notice of appeal to the court clerk in Boise on October 10 by facsimile. The cover sheet stated: "Please file this appeal--the original will be express mailed today. Call if questions result." There is no dispute that the clerk received the facsimile.

Clay's lawyer mailed the original on October 11, and it arrived in Boise on October 12. We remanded the appeal to the district court for a factual determination of whether there was excusable neglect for the late filing. After an evidentiary hearing, the court found no excusable neglect and refused to extend the time allowed for filing.

Clay appealed the district court's decision, arguing that the court abused its discretion in finding no excusable neglect. We need not reach that question. Under all the circumstances of this case, the clerk's receipt of the facsimile was the functional equivalent of filing notice of appeal.

Federal Rule of Appellate Procedure 3(c) provides that an appeal shall not be dismissed for informality of form or title of the notice of appeal. In considering Rule 3(c), the Supreme Court has stated that "if a litigant files papers in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires." Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-317, 108 S.Ct. 2405, 2408-09, 101 L.Ed.2d 285 (1988). An imperfect notice of appeal may be sufficient to show the party intended to appeal, despite an irregularity in the form or procedure for filing. Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir.1978). In such a case we have discretion to disregard the irregularity. Id.

There is no dispute that the court and the government had notice that Clay intended to file the appeal. The facsimile received by the court clerk contained all of the information required by Federal Rule of Appellate Procedure 3(c). In light of all the circumstances, Rule 3(c) was complied with. We have jurisdiction over the appeal.

2. Speedy Trial Act

Clay argues that the February 11, 1988, indictment violated the Speedy Trial Act, 18 U.S.C. Sec. 3161(b), which provides in relevant part:

Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.

Section 3162(a)(1) requires that the charges be dismissed if the time limit was not met.

Clay claims that the 1988 indictment should have been dismissed because it was "in connection with" the 1987 charge to which he entered a guilty plea, and was not returned within thirty days of the complaint in the 1987 case. We disagree. The Act applies only if the government fails to indict the defendant on a charge within thirty days of bringing that charge. United States v. Pollock, 726 F.2d 1456, 1462 (9th Cir.1984). The 1988 indictment charged Clay with a different offense from that charged in the 1987 complaint. The Speedy Trial Act does not apply.

Clay also argues that the government violated his due process rights by waiting until 1988 to charge him with offenses it knew about in 1987. We reject the argument. "[T]o prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." United States v. Lovasco, 431 U.S. 783, 796, 97 S.Ct. 2044, 2052, 52 L.Ed.2d 752 (1977). The conspiracy in this case involved eight other defendants in addition to Clay. The government delayed bringing the second indictment against Clay because it was engaged in an ongoing investigation of the conspiracy. The delay did not violate Clay's due process rights.

3. Vindictive prosecution

Clay argues that the government filed the 1988 indictment in retaliation for his refusal to cooperate with drug enforcement officers in their investigation. The record refutes his argument.

A defendant alleging vindictive prosecution has the burden of showing an appearance of vindictiveness. See Adamson v. Ricketts, 865 F.2d 1011, 1017 (9th Cir.1988). The appearance gives rise to a presumption of vindictiveness, and the prosecution has the burden of showing that its decisions were justified. Id. at 1019. There is an appearance of vindictiveness when there is a reasonable likelihood that the prosecutor would not have filed charges but for hostility towards the defendant because the defendant exercised his or her legal rights. United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir.1982).

Whether there is an appearance of vindictiveness is a question of fact. The trial court found that the government intended all along to pursue additional charges against Clay, and that its decision to continue its investigation and pursue additional charges preceded Clay's refusal to cooperate in the prosecution of his co-defendants. The district court also found that the Assistant U.S. Attorney did not tell Clay that filing a Rule 35 motion would result in filing additional charges. Rather, it found that he told Clay that additional charges would be filed against him regardless of whether he filed the motion. On the basis of these facts, the trial court found no appearance of vindictiveness. Nothing in the record suggests that its ruling was error.

4. Supervised release

The court sentenced Clay to ten years in prison to run concurrently with his previous term, plus four years of supervised release. He argues that he was not subject to supervised release because the statute authorizing that penalty was not yet in effect when he committed the offense.

We reject the argument. Clay pleaded guilty to acts of conspiracy committed beginning in 1976 and continuing until November 1, 1987. We have held that the supervised release provision, Public Law 99-570 Sec. 1002, 100 Stat. 3207, became effective the day it was enacted, October 27, 1986. United States v. Torres, 880 F.2d 113, 115 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990). Clay was therefore subject to supervised release.

5. Voluntariness of the plea

Clay argues that the court should vacate his guilty plea because the district court accepted the plea without informing him that he would receive a term of supervised release. The court advised Clay that the maximum penalty was a $1,000,000 fine and twenty years in the custody of the attorney general. In fact, the maximum penalty was a $2,000,000 fine, forty years in the custody of the attorney general, and four years of supervised release. 21 U.S.C. Sec. 841(b)(1)(B). Clay was sentenced to ten years in prison to run concurrently with his prior sentence, plus four years of supervised release.

Before a trial court accepts a guilty plea it must inform the defendant of "the maximum possible penalty provided by law,...