U.S. v. Dota

• Decision Date: 31 August 1994
• Docket Number: No. 93-50011,93-50011
• Citation: 33 F.3d 1179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Marion DOTA, aka Dickie Stevens, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1179

33 F.3d 1179

UNITED STATES of America, Plaintiff-Appellee, v. Richard Marion DOTA, aka Dickie Stevens, Defendant-Appellant.

No. 93-50011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1994.

Decided Aug. 31, 1994.

H. Dean Steward, Directing Atty., Federal Public Defender's Office, Santa Ana, CA, for defendant-appellant.

Wayne R. Gross, Asst. U.S. Atty., Santa Ana, CA, for plaintiff-appellee.

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

Before: WIGGINS, NELSON, Circuit Judges, and REED, ^* District Judge.

WIGGINS, Circuit Judge:

Richard Dota appeals his conviction and sentence for conspiracy, murder for hire, and use of a firearm during a crime of violence. We affirm.

FACTS

Though disputed in some instances, testimony showing the following facts was presented at Dota's jury trial.

Julius Schill was president of APS, a company that made and sold self-operated photo booths and business card machines. Cynthia Asher was Schill's secretary. Schill tried to give Asher gifts in exchange for her companionship and sexual favors. Though she accepted some items from Schill, she claims to have rejected his overtures in July, 1991. At the time, Asher had a boyfriend named Wilbur Constable.

In August, 1991, Schill met with Richard Dota. Defense witnesses said Schill meant to hire Dota as a salesman. Dota had some contact with mall and casino owners/operators and had placed APS machines before. At the August meeting, Schill signed a contract hiring Dota. After the meeting, Schill instructed an APS employee to prepare a $21,000 check for Dota.

The government argued at trial that the August meeting was a sham and that the $21,000 was payment to Dota in exchange for Dota arranging Constable's murder. Shortly after the meeting, Dota met with Blake Yoon. Yoon and Dota had worked together in the past to collect gambling debts by intimidation. On this occasion, Dota gave Yoon three thousand dollars and instructed him to murder Constable.

In September, 1991, Yoon watched Constable's residence. Late that month, Yoon was arrested near the residence by the local sheriff for providing false identification. Yoon was kept overnight in jail. When released the next morning, Yoon called Dota. Dota reassured Yoon. On October 3, 1991, Dota flew to California to meet with Yoon. They decided it would no longer be safe to murder Constable at home. So they devised a plan to lure Constable from his work. Dota flew back to Las Vegas.

On October 11, 1991, Yoon, assisted by John Caravaggio and Scott Smith, carried out the plan. That night, at about 11:00 p.m., Constable finished his work at Home Depot and walked to the parking lot. He discovered a dent in the car he had driven to work. He also found business cards on the car. The cards indicated that a Dr. Chris Fernando had accidentally hit the car and wanted to talk to Constable. Constable called the number on one card and arranged to meet later that night the person who answered.

When Constable arrived at the alleged doctor's office, three men met him in the parking lot. These three beat Constable with baseball bats. In the course of the beating, Constable's gun (which one of the three had taken from Constable) accidentally fired. The three men then decided to leave. Before leaving, however, Yoon, using Yoon's own gun, shot Constable in the head. Constable was found a short time later. He survived.

On October 13, 1991, Asher called Schill and told him that she would not be at work that day because Constable was hurt. Schill called Dota. Dota then called Yoon and told him that Constable was still alive. Yoon became concerned and met with a private investigator. Yoon asked the investigator to determine whether Constable would survive. The investigator and the FBI videotaped the meeting with Yoon. Another man at the meeting, introduced to Yoon as a private investigator, was in fact an FBI agent. When Yoon later became aware of these facts, he confessed and agreed to cooperate. Caravaggio and Smith were later arrested with Yoon's help.

Yoon told agents that Dota had hired him to kill Constable. Yoon then called Dota repeatedly by phone. Dota, unaware of Yoon's arrest, made numerous incriminating statements. Dota instructed Yoon to tell authorities that Yoon knew nothing. To bolster this advice, Dota said that he had once been arrested in Palm Springs for a minor On January 16, 1992, a federal indictment was returned charging Schill, Dota, Yoon, Caravaggio, and Smith with conspiracy, murder for hire, and use of a firearm in connection with a crime of violence. Because Dota was arrested in Las Vegas, Dota did not make his first appearance in federal court in California until January 27, 1992, when he was arraigned. Yoon, Caravaggio, and Smith first appeared in federal court on February 10, 1992. Yoon, Caravaggio, and Smith had been charged with violations of state law and had to be transferred from state to federal custody.

                offense, had told the authorities he knew nothing, and as a result had not been charged.  On another occasion, Dota discussed with Yoon a plan to blame the Constable assault on Edward Pucci, a recently deceased bookmaker.  Dota also told Yoon to send a messenger to the jail to tell Caravaggio and Smith to keep their "mouth [sic] shut."   On January 6, 1992, federal agents arrested Dota in Las Vegas
                

Trial was initially set for March 2, 1992. On February 19, Schill filed a motion to continue the trial. The government and Schill's codefendants, except Dota, agreed that a continuance was necessary. On February 25, 1992, the court signed an order finding excludable time under the Speedy Trial Act ("Act"), 18 U.S.C. Sec. 3161 et seq., and continued the trial to May 19, 1992. Yoon, Smith, and Caravaggio pleaded guilty before trial. At trial, the jury returned a verdict of not guilty as to Schill and guilty as to Dota. From various decisions of the district court relating to the trial and Dota's sentence, Dota appeals.

DISCUSSION

1. The Speedy Trial Act

Dota argues that his trial did not begin soon enough to satisfy the Act. This court reviews "the district court's findings concerning the Act for clear error and questions concerning application of the Act de novo." United States v. Nash, 946 F.2d 679, 680 (9th Cir.1991).

"The Speedy Trial Act provides a seventy day limit from the date of the ... indictment or the date on which the defendant appears before a judicial officer of the court, whichever occurs last, to the commencement of the trial. Certain periods of time are excludable." Nash, 946 F.2d at 680 (citations omitted). Delay "resulting from any pretrial motion," from the filing of the motion through the disposition of it, is excluded. 18 U.S.C. Sec. 3161(h)(1)(F). The Act also excludes delay "resulting from a continuance granted by any judge ... on the basis of his findings that the ends of justice ... outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. Sec. 3161(h)(8)(A). Findings supporting an "ends-of-justice" exclusion of time must appear in the record and be "supported by the record" with reference to factors set forth in 18 U.S.C. Sec. 3161(h)(8)(A) & (B). United States v. Jordan, 915 F.2d 563, 565 (9th Cir.1990); United States v. Pollock, 726 F.2d 1456, 1461 (9th Cir.1984).

The district court justified the continuance in this case, over Dota's objection, on grounds that (1) Dota's codefendants needed more time to review large amounts of documentary and tape discovery, do follow-up investigation, and prepare for trial; and (2) the government needed more time to complete its receipt and analysis of various necessary records, including telephone tolls, credit card receipts, bank records, and hotel records; to conduct follow-up investigation in Orange County, Las Vegas, and San Francisco; and then to prepare for trial. The court specifically found that interests of justice outweighed the interests of the public and the defendants and that 70 days would deny counsel for defendants and the government the reasonable time necessary for effective preparation, taking into account due diligence. See 18 U.S.C. Sec. 3161(h)(8)(B)(iv) (allowing a continuance when reasonably necessary for the defendant or the government to prepare for trial).

Dota claims that these factual findings were error. Specifically, he asserts that codefendants' and the government's attorneys did not really need extra time. Dota also argues that this case is like United States v. Theron, 782 F.2d 1510 (10th Cir.1986). In Theron, the court held that the district court must balance justice against the interests of "the defendant" and the public, not codefendants, and that an ends-of-justice continuance based on codefendants' needs was ineffective. 782 F.2d at 1513. Dota argues that, as in Theron, the needs of Dota's codefendants were irrelevant.

Dota also challenges the district court's finding that February 10th (the date codefendants Yoon, Smith, and Caravaggio were arraigned) was the date on which Dota's speedy trial clock began to run. Though recognizing that generally the clock begins to run when the last codefendant appears in court, Henderson v. United States, 476 U.S. 321, 323 n. 2, 331, 106 S.Ct. 1871, 1873 n. 2, 1877, 90 L.Ed.2d 299 (1986); United States v. Morales, 875 F.2d 775, 776 (9th Cir.1989), Dota contends the case at bar should be an exception to that general rule because (1) the three codefendants who appeared on February 10th were going to be government witnesses; (2) all three pleaded guilty shortly thereafter; and (3) the time when the three appeared was uniquely within the control of the government (the three were brought into federal custody from state custody by means of habeas corpus writs). ¹ Dota argues the clock actually began to run on January 27, 1992, when Dota was arraigned. Dota's trial did not begin until 77 days after January 27, 1992,...