U.S. v. Keith, 94-5147

• Decision Date: 21 December 1994
• Docket Number: No. 94-5147,94-5147
• Citation: 42 F.3d 234
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Van Scott KEITH, Defendant-Appellant.

Page 234

42 F.3d 234

UNITED STATES of America, Plaintiff-Appellee, v. Van Scott KEITH, Defendant-Appellant.

No. 94-5147.

United States Court of Appeals Fourth Circuit.

Argued Nov. 4, 1994.

Decided Dec. 21, 1994.

ARGUED: Oldric Joseph LaBell, Jr., Newport News, VA, for appellant. Alan Mark Salsbury, Asst. U.S. Atty., Norfolk, VA, for appellee. ON BRIEF: Helen F. Fahey, U.S. Atty., Norfolk, VA, for appellee.

Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.

Affirmed by published opinion, Judge HAMILTON wrote the opinion, in which Judge WILKINS and Judge LUTTIG joined.

OPINION

HAMILTON, Circuit Judge:

Appellant, Van Scott Keith, was convicted by a jury of three counts of mail fraud, 18 U.S.C. Secs. 1341 and 2, and sentenced to a term of imprisonment of 21 months. On appeal, Keith contends that his rights under the Speedy Trial Act, 18 U.S.C. Sec. 3161, were violated and that the district court erred when it enhanced his offense level by two levels for obstruction of justice, United States Sentencing Commission, Guidelines Manual, Sec. 3C1.1. For the reasons that follow, we affirm the judgment of the district court.

I

On September 24, 1990, Keith reported to his automobile insurance carrier, Nationwide Mutual Insurance Company (Nationwide), that he had been injured on September 9, 1990, when his wife accidentally ran into him in his driveway in a pickup truck he had purchased from his father on September 1, 1990. Although the pickup truck was not listed on Keith's Nationwide policy, a policy provision covered newly purchased vehicles if the insured reported their purchase within thirty days. Keith eventually received $22,525.14 from Nationwide. Of this amount, $5,000 represented payments under the policy's medical payments coverage to which Keith was entitled irrespective of who owned the pickup truck.

There was no dispute that the accident occurred or that Keith was injured; however, it was demonstrated at trial that Keith had not actually purchased the vehicle from his father as he reported to Nationwide. In fact, while he was pursuing his claim with Nationwide, he was also pursuing a claim with his father's insurance carrier, Allstate Insurance Company, reporting to that carrier that his father owned the pickup truck.

On July 12, 1993, a grand jury sitting in the Eastern District of Virginia indicted Keith on seven counts of mail fraud, 18 U.S.C. Secs. 1341 and 2, arising out of his use of the mail to defraud Nationwide. On August 2, 1993, Keith initially appeared before a magistrate judge. At that time, the magistrate judge continued Keith's arraignment to August 19, 1993, in order to permit Keith to obtain counsel, finding that the ends of justice were served by the continuance.

On August 19, 1993, Keith had still failed to obtain counsel. At that time, the magistrate judge appointed counsel, Keith pleaded not guilty, and trial was scheduled for October 27, 1993. Several days before the scheduled trial, the Assistant United States Attorney responsible for Keith's prosecution became ill. The Assistant United States Attorney contacted defense counsel, who agreed to a continuance. Judge MacKenzie granted the government's motion for a continuance orally and then entered a written order stating:

Upon motion of the United States of America and with the concurrence of the defendant, it is hereby ordered that the trial of this case be continued to November 15, 1993, due to illness of counsel for the United States.

(J.A. 40). Notably, this order was signed by defense counsel as "[s]een and agreed." Id.

On November 15, 1993, the case was called for trial before Judge Payne. At that time, Keith moved for dismissal of the indictment, claiming a violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161. Keith asserted that the period of time covered by the continuance of the trial date was not properly excludable because Judge MacKenzie had not made a finding that the ends of justice were served by the continuance. The Assistant United States Attorney then explained to Judge Payne what had occurred, and defense counsel agreed, specifically noting that Keith had not been prejudiced by the delay. Judge Payne then made a finding that the continuance did serve the ends of justice and denied Keith's motion for dismissal.

A jury convicted Keith of three of the seven mail fraud counts contained in the indictment. He was sentenced to 21 months' imprisonment. Keith appeals.

II

Keith asserts that because his November 15, 1993 trial occurred after the seventy-day mandate of the Speedy Trial Act, his Speedy Trial Act rights were violated. See 18 U.S.C. Sec. 3161(c)(1). He contends that the latest day his trial could have commenced was October 28, 1993, seventy days after August 19, 1993, the day when the magistrate judge appointed counsel. Keith's argument is premised on the fact that the period of time covered by the continuance obtained on the government's motion (seventeen days) was not excludable. The government counters by asserting that the time at issue was excludable under 18 U.S.C. Sec. 3161(h)(8)(A).

We review the legal standards applied by the district court in making its ends of justice determination de novo and review the district court's findings under the Speedy Trial Act (the Speedy Trial Act or the Act), 18 U.S.C. Sec. 3161, under the clearly erroneous standard. United States v. Frey, 735 F.2d 350, 352 (9th Cir.1984).

Under the Act, the trial of a criminal defendant must "commence within seventy days from the filing date ... of the ... indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. Sec. 3161(c)(1). The Act enumerates certain exceptions to the rule and excludes, among others, the period of delay:

resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interest of the public and the defendant in a speedy trial.

18 U.S.C. Sec. 3161(h)(8)(A). ¹

Accordingly, a period of delay is excludable under Sec. 3161(h)(8)(A) only "if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." Notably, Sec. 3161(h)(8)(A) does not specify at what point in time an ends of justice finding must be made, but we have made clear that the district court may not grant an ends of justice continuance nunc pro tunc. See United States v. Carey, 746 F.2d 228, 230 (4th Cir.1984), cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). However, a court may enter its ends of justice finding after it grants the continuance, "sometimes as late as the filing of the defendant's motion to dismiss on Speedy Trial Act grounds," if it is clear from the record that the court conducted the mandatory balancing contemporaneously with the granting of the continuance. United States v. Doran, 882 F.2d 1511, 1516 (10th Cir.1989); see also United States v. Tunnessen, 763 F.2d 74, 76 (2d Cir.1985); United States v. Crane, 776 F.2d 600, 606-07 (6th Cir.1985); United States v. Bryant, 726 F.2d 510, 511 (9th Cir.1984); United States v. Elkins, 795 F.2d 919, 924 (11th Cir.), cert. denied, 479 U.S. 952, 107 S.Ct. 443, 93 L.Ed.2d 391 (1986); United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980). In other words, "if findings are entered ex post facto, it must be clear from the record 'that [the court] did consider the factors identified by the statute when it granted the continuance.' " Doran, 882 F.2d at 1517 (quoting Elkins, 795 F.2d at 924); see also Frey, 735 F.2d at 353 ("district court erred by making nunc pro tunc findings to accommodate its unwitting violation of the Act"). The reasoning behind such an approach is clear:

Unless it is clear from the record that the trial court struck the proper balance when it granted the continuance, the twin purposes of the record requirement will be ill-served. The trial court will not focus properly on the correct balancing at the time the continuance is granted, and the appellate court will have to settle for reviewing retroactive rationalizations instead of contemporaneous reasoning. Allowing the granting of an ends-of-justice continuance to take place outside the boundaries discussed above also invites much wider use of this procedural device than Congress intended.

Doran, 882 F.2d at 1516; see also Tunnessen, 763 F.2d at 77 (Because "Congress intended that the decision to grant an ends-of justice continuance be prospective, not retroactive; an order granting a continuance on that ground must be made at the outset of the excludable period.").

Judge MacKenzie orally granted the government's motion for a continuance and subsequently entered a written order, noting that the continuance was granted on account of the Assistant United States Attorney's illness and that Keith agreed to the continuance. Judge MacKenzie did not state any statutory provision of the Speedy Trial Act in his order. At trial, in response to Keith's motion to dismiss, Judge Payne stated the ends of justice served by the continuance outweighed the best interest of the public and Keith in a speedy trial.

In our view, it is clear that Judge MacKenzie's...