U.S. v. George, No. 93-50707

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING, WALLACE and FARRIS; WALLACE
Citation85 F.3d 1433
Parties96 Cal. Daily Op. Serv. 4137, 96 Daily Journal D.A.R. 6694 UNITED STATES of America, Plaintiff-Appellee, v. Craig Bradley GEORGE, aka: Steve Eugene Johnson, Defendant-Appellant.
Decision Date11 June 1996
Docket NumberNo. 93-50707

Page 1433

85 F.3d 1433
96 Cal. Daily Op. Serv. 4137, 96 Daily Journal
D.A.R. 6694
UNITED STATES of America, Plaintiff-Appellee,
v.
Craig Bradley GEORGE, aka: Steve Eugene Johnson, Defendant-Appellant.
No. 93-50707.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 8, 1996.
Decided June 11, 1996.

Page 1435

David M. Dudley and Philip Kent Cohen, Los Angeles, California, for defendant-appellant.

Joseph A. Brandolino, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.

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

Before BROWNING, WALLACE and FARRIS, Circuit Judges.

WALLACE, Circuit Judge:

George appeals from his conviction of two counts of bank robbery in violation of 18 U.S.C. § 2113(a). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

On January 22, 1991, an indictment was filed charging George with two counts of bank robbery. Trial was scheduled for April 30, but on that day, George requested that the court appoint new counsel. The district court granted George's request and reset the trial for July 16, 1991.

On July 15, George, through counsel, moved for a continuance, insisting that he was not prepared for trial. The district court granted George's motion and set the trial for August 20, 1991. George also asked for a new attorney, which the court denied.

On August 2, George again asked that his trial be postponed. The district court recalendared the trial for September 17. On September 19, George once more requested a continuance. He also asked the court to acknowledge him as co-counsel and to appoint a private investigator to assist in his defense. The court granted all of George's motions, continuing the trial until October 8, appointing an investigator, and giving George co-counsel status. On September 24, the court signed an order which ensured that George received all the benefits of pro se status.

On October 8, George filed ten handwritten motions, including motions for a continuance, a medical and psychological examination, dismissal of his co-counsel, permission to proceed pro se, discovery, dismissal of the judge, copies of transcripts of all prior proceedings in the case, and a new bail hearing. The district court denied all of these motions.

On October 9, prior to the presentation of evidence, the court heard and decided various motions in limine that the government had filed on April 25. George filed two more handwritten motions, asking the court to dismiss his counsel and asking for a new trial. The court denied George's motions.

On October 15, George filed, and the court denied, more handwritten motions, including a motion for a mistrial and a motion requesting appointment of an anthropologist, a psychologist,

Page 1436

and a polygraph specialist. George also filed another motion to proceed pro se. The court responded by making George's appointed attorney advisory counsel, rather than co-counsel. On the same day, after the close of the government's case-in-chief, George waived his right to a jury trial and the trial proceeded as a bench trial.

The following day, George filed more handwritten motions, including a motion for another continuance. The court denied the motions and ultimately convicted George of both counts of robbery.

II

George first argues that he did not receive a speedy trial. We review questions of law concerning the application of the Speedy Trial Act (Act) de novo. United States v. Springer, 51 F.3d 861, 864 (9th Cir.1995) (Springer ).

The Act, 18 U.S.C. §§ 3161-3174, requires that George's trial commence within 70 days from the later of the filing of an indictment or his first appearance, barring excludable time. Henderson v. United States, 476 U.S. 321, 326, 106 S.Ct. 1871, 1874-75, 90 L.Ed.2d 299 (1986) (Henderson ); 18 U.S.C. § 3161(c)(1). George was arraigned on January 28, 1991, and his trial began 253 days later, on October 8. See United States v. Manfredi, 722 F.2d 519, 524 (9th Cir.1984) (for purposes of the Act, trial "commences" on day voir dire begins). George does not dispute that the time from January 28 to July 14 was properly excluded due to the filing of various pretrial motions. However, George argues that the 85 days between July 15 and October 8, 1991, were nonexcludable and that the delay was impermissible.

On April 25, the government filed three motions in limine. The court heard and decided these motions on October 9, after the jury had been impaneled, but before the presentation of any evidence. The Act specifically excludes time "from the filing of [any pretrial] motion through the conclusion of the hearing on" the motion. 18 U.S.C. § 3161(h)(1)(F); see also Springer, 51 F.3d at 865 (where court hears and decides a motion in limine before trial, time between the filing and the hearing is excludable); Henderson, 476 U.S at 329-30, 106 S.Ct. at 1877 (for pretrial motions that require a hearing, delay can be excluded "whether or not a delay in holding that hearing is 'reasonably necessary' "). As we explained in Springer, the exception in United States v. Clymer, 25 F.3d 824, 830-31 (9th Cir.1994) (holding that time between filing of pretrial motion and hearing was not excludable), applies only when a motion is decided after trial. Springer, 51 F.3d at 865. Thus, the time between April 25 and October 9 was excludable and George was tried within the time required by the Act.

III

On one of the many mornings that trial was to commence, George filed a motion requesting that the court appoint a psychologist to determine his competency to stand trial. George argues that the district court should have granted the motion.

A.

George and the government disagree as to the standard of review we must apply when reviewing the district court's refusal to order an examination pursuant to 18 U.S.C. § 4241. The issue is one of first impression in our circuit.

To determine the level of deference, if any, to be given to a district court's decision to order or refuse a psychological examination, we begin with the statute's language. Section 4241 provides:

(a) ... At any time after the commencement of a prosecution for an offense and prior to [ ] sentencing ..., the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent....

Page 1437

(b) ... Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted ....

(Emphasis added.) If reasonable cause exists, section 4241(a) requires a district court to conduct a competency hearing. However, even if the existence of reasonable cause requires a competency hearing, the court clearly has discretion to determine whether an examination is also necessary. The statute's language therefore indicates that we should review a district court's decision to deny an examination for abuse of discretion. See Tashima v. Administrative Office of the United States Courts, 967 F.2d 1264, 1273 (9th Cir.1992) (statute's use of term "may" indicates congressional intent to give decisionmaker discretion).

This deferential standard of review is appropriate in light of the standard of review we applied when reviewing denials of examinations requested pursuant to section 4241's precursor, 18 U.S.C. § 4244. Section 4244 read:

Whenever after arrest and prior to the imposition of sentence ... the United States Attorney has reasonable cause to believe that a person charged with an offense ... may be presently insane or otherwise [ ] mentally incompetent ..., he shall file a motion for a judicial determination of such mental competency ..., setting forth the ground for such belief.... Upon such a motion or upon a similar motion in behalf of the accused, or upon its own motion, the court shall cause the accused ... to be examined as to his mental condition by at least one qualified psychiatrist....

(Emphasis added.) The psychiatric examination requested pursuant to section 4244 was essentially mandatory. See United States v. Ives, 574...

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44 practice notes
  • U.S. v. Leggett, No. 96-7772
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 3 Diciembre 1998
    ...court must have " 'reasonable cause to believe' the defendant [is] incompetent") (quoting 18 U.S.C. § 4241(a)); United States v. George, 85 F.3d 1433, 1437 (9th Cir.1996) (stating that a finding of "reasonable cause" dictates whether a court conducts a competency hearing); United States v. ......
  • USA v. Mirza Ali, Nos. 07-10529, 07-10539, 07-10542.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Agosto 2010
    ...counsel. A district court's denial of a request for substitute counsel is reviewed for an abuse of discretion. United States v. George, 85 F.3d 1433, 1438 (9th Cir.1996). Sameena Ali contends that the district court abused its discretion in denying her motion for substitute counsel. However......
  • Ranchers Cattleman Action v. U.S. Dept. of Agric., No. 05-35264.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Julio 2005
    ...suggests that the Secretary is given discretion over such decisions as whether to close the borders. See, e.g., United States v. George, 85 F.3d 1433, 1437 (9th Cir.1996) (statute's use of term "may" "indicates that we should review a district court's decision. . . for abuse of discretion")......
  • United States v. Walter-Eze, No. 15-50315
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Agosto 2017
    ...from the lack of a continuance, she has not shown that any of them affected the outcome of the trial. See United States v. George , 85 F.3d 1433, 1440 (9th Cir. 1996) (finding no prejudice where defendant has not "shown how a continuance would have assisted him"). This Circuit's precedent a......
  • Request a trial to view additional results
44 cases
  • U.S. v. Leggett, No. 96-7772
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 3 Diciembre 1998
    ...court must have " 'reasonable cause to believe' the defendant [is] incompetent") (quoting 18 U.S.C. § 4241(a)); United States v. George, 85 F.3d 1433, 1437 (9th Cir.1996) (stating that a finding of "reasonable cause" dictates whether a court conducts a competency hearing); United States v. ......
  • USA v. Mirza Ali, Nos. 07-10529, 07-10539, 07-10542.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Agosto 2010
    ...counsel. A district court's denial of a request for substitute counsel is reviewed for an abuse of discretion. United States v. George, 85 F.3d 1433, 1438 (9th Cir.1996). Sameena Ali contends that the district court abused its discretion in denying her motion for substitute counsel. However......
  • Ranchers Cattleman Action v. U.S. Dept. of Agric., No. 05-35264.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Julio 2005
    ...suggests that the Secretary is given discretion over such decisions as whether to close the borders. See, e.g., United States v. George, 85 F.3d 1433, 1437 (9th Cir.1996) (statute's use of term "may" "indicates that we should review a district court's decision. . . for abuse of discretion")......
  • United States v. Walter-Eze, No. 15-50315
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Agosto 2017
    ...from the lack of a continuance, she has not shown that any of them affected the outcome of the trial. See United States v. George , 85 F.3d 1433, 1440 (9th Cir. 1996) (finding no prejudice where defendant has not "shown how a continuance would have assisted him"). This Circuit's precedent a......
  • Request a trial to view additional results

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