U.S. v. Karsseboom, 88-3011

• Decision Date: 31 July 1989
• Docket Number: No. 88-3011,88-3011
• Citation: 881 F.2d 604
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chris Leopaul KARSSEBOOM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 604

881 F.2d 604

UNITED STATES of America, Plaintiff-Appellee, v. Chris Leopaul KARSSEBOOM, Defendant-Appellant.

No. 88-3011.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1988.

Decided March 31, 1989.

As Amended on Denial of Rehearing July 31, 1989.

Kenneth Lerner, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Ellen F. Rosenblum, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

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

Before BROWNING, TANG and FARRIS, Circuit Judges.

TANG, Circuit Judge:

Chris Leopaul Karsseboom appeals his conviction on five counts of wire fraud partly on grounds of violation of the Speedy Trial Act. 18 U.S.C. Secs. 3161 et seq. We reverse the conviction below and hold that if a trial court dismisses some but not all counts of an indictment, and a defendant is reindicted on the dismissed counts, the retained count and the superseding indictment both inherit the Speedy Trial Act clock applied to the original indictment. ¹

I. Background

On April 15, 1987, a grand jury handed down an eight-count indictment charging Karsseboom with one count of mail fraud in violation of 18 U.S.C. Sec. 1341 (Count One), six counts of wire fraud in violation of 18 U.S.C. Sec. 1343 (Counts Two through Seven), and one count of counterfeiting foreign obligations in violation of 18 U.S.C. Sec. 478 (Count Eight).

The court set trial for June 9, 1987, and held a conference that day before calling in a jury pool for impaneling. At this pretrial conference, the court expressed concern about an apparent defect in the indictment: it named no victim. Neither the prosecutor nor defense counsel had made a motion to the court regarding the omission of an alleged victim in the indictment.

The court asked each side for its recommendation on how to proceed in light of the facts that seven counts of the eight-count indictment were seemingly defective, that trial was set to commence forthwith, and that a jury pool was ready to be impaneled. The court noted that it had no problem with the eighth count.

The court then recessed and reconvened ninety minutes later. The government, having researched the issue of omitting a named or unknown victim in the indictment, concluded that the indictment was sufficient notwithstanding such an omission and stated that the government was ready for trial.

The court then pressed defense counsel to decide whether to move for a dismissal based on the defective indictment. Counsel equivocated his intentions but the court nonetheless construed counsel's comments as a motion to dismiss. The court then dismissed the first seven counts of the indictment. ²

The court let the eighth count stand and set trial for the week of July 13, 1987 for the single remaining count. On July 13, 1987, Karsseboom moved for an immediate trial. On July 15, 1987 the government filed a superseding indictment which included the eighth count of the original indictment. Karsseboom was arraigned on August 6, 1987 and entered pleas of not guilty on Counts One through Eight of the superseding indictment. The court reset trial for September 28, 1987. On August 17, 1987, Karsseboom filed a demand for a speedy trial.

Following reassignment on August 28, 1987, another judge again reset the trial date to September 30, 1987. On September 25, 1987, Karsseboom filed a motion to dismiss together with a memorandum of law asserting a violation of the Speedy Trial Act. The district court heard oral arguments on this motion on the day of trial, and dismissed superseding Count Eight, the only count remaining from the original indictment, as violative of the Speedy Trial Act. The court let the seven redacted counts stand.

Karsseboom appealed following his conviction on the redacted counts of the superseding indictment arguing that over 70 days had passed between his first court appearance and his trial.

II. Analysis

Standard of Review

We review factual findings concerning the Speedy Trial Act for clear error and questions of law concerning the application of the Act de novo. United States v. Calabrese, 825 F.2d 1342, 1347 (9th Cir.1987); United States v. Feldman, 788 F.2d 544, 547-548 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

The specific question at issue here involves the effect of a partial dismissal on the speedy trial clock, i.e., whether the filing of a superseding indictment impacts on the Act's requirement that a defendant be brought to trial within 70 days of his first court appearance through counsel or filing of the indictment, whichever date is later. 18 U.S.C. Sec. 3161(c)(1). We hold that the Speedy Trial Act, of which Sec. 3161(c) is a part, does not require that the 70 day speedy trial period be restarted upon the filing of a superseding indictment when the superseding indictment charges the same offenses as the original indictment.

When an indictment is dismissed on motion of the defendant, and the defendant is thereafter reindicted, both the 30-day trial preparation period and the 70-day speedy trial time period start over. ³ If the trial court had dismissed all eight counts, then a new seventy-day period within which trial must commence would have started with the filing of the superseding indictment. Feldman, 788 F.2d at 547, 48.

The Speedy Trial Act does not address questions concerning the dismissal of several but not all counts within an indictment. Here, the trial court did not dismiss the entire indictment, but rather dismissed only seven of the eight counts. As in Rojas-Contreras, discussed below, the reindictment tolling provisions do not apply because the second indictment was issued in the absence of dismissal of the first.

The Act does not require that the 30-day trial preparation period of Sec. 3161(c)(2) be restarted upon the filing of a superseding indictment. United States v. Rojas-Contreras, 474 U.S. 231, 234-237, 106 S.Ct. 555, 557-559, 88 L.Ed.2d 537 (1985). Congress intended the 30-day and 70-day periods to operate in tandem. The structure of the statute suggests that both periods should continue to run upon issuance of a superseding indictment. The Act's comprehensive list of express exclusions suggests that the omission of an excludable period of time between an original and superseding indictment from the 70-day clock reveals a considered judgment on Congress' part that the 70-day clock should not restart upon the filing of a superseding indictment. Cf. id. at 240, 106 S.Ct. at 560 (BLACKMUN, J. concurring).

We hold, therefore, that if a trial court dismisses some but not all counts of an indictment, and a defendant is reindicted on the dismissed counts, the retained count and the superseding indictment both inherit the 70-day clock applied to the original indictment. Where, as here, a superseding indictment is used to make a minor correction leaving the charges and the evidence unaffected, the defendant should be brought to trial within the original 70-day period.

In United States v. Roman, 822 F.2d261 (2d Cir.1987), the Second Circuit addressed the issue of whether speedy trial exclusions applicable to an original indictment should apply to a superseding...