U.S. v. King

• Decision Date: 18 April 2007
• Docket Number: No. 05-10629.,05-10629.
• Citation: 483 F.3d 969
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David R. KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

483 F.3d 969

UNITED STATES of America, Plaintiff-Appellee, v. David R. KING, Defendant-Appellant.

No. 05-10629.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 16, 2006.

Filed April 18, 2007.

James R. Greiner, Sacramento, CA, argued the cause for the defendant-appellant and filed a brief.

Michelle Rodriguez, Assistant U.S. Attorney, Sacramento, CA, argued the cause for the plaintiff-appellee, and filed a brief. McGregor W. Scott, United States Attorney, was also on the brief.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief District Judge, Presiding. D.C. No. CR-03-00215-WBS.

Before BEEZER, O'SCANNLAIN, and TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

In this appeal, we must decide whether a criminal defendant's right to a speedy trial under either the Speedy Trial Act or the Sixth Amendment was violated.

I

A

This case arises out of the investigation of a bank fraud and identity-theft conspiracy in Sacramento, California. From June 2002 until May 2003, David R. King conspired with numerous other individuals to obtain stolen financial information from bank insiders, including employees of the Golden One Credit Union. King used such information to create fraudulent checks drawn on actual accounts for distribution to his co-conspirators, who were to cash the fake checks and return most of the money to King.

During the course of investigating the conspiracy, officers employed the services of a confidential witness to make tape recordings of conversations with King, during which he provided her with fraudulent checks. A search warrant was executed upon King's residence in Sacramento, which he shared with a roommate, Ken Shandy. As a result of such search, additional evidence, including fraudulent checks and check-making materials, was recovered by law enforcement.

B

On May 8, 2003, a grand jury indicted King along with two co-conspirators, Dorian Thomas and Daryen Simmons, for multiple counts of conspiracy and bank fraud.¹ On December 3, 2003, the government filed a superseding indictment ("first superseding indictment") which charged King with an additional twelve counts of bank fraud and also added a new co-defendant, King's roommate Shandy. Shandy was arraigned on December 8, 2003, and King was arraigned on the first superseding indictment on December 10, 2003. At that time, the trial was continued to afford Shandy and his counsel time to prepare a defense. By March 2004, Shandy decided to plead guilty and to cooperate with the government.

Throughout 2004, there were numerous exclusions of time and continuances granted by the district court, including exclusions related to pre-trial motions filed by King. On December 15, 2004, the district court denied King's pre-trial motion to suppress evidence obtained during the search of his residence and vehicles. On December 16, 2004, the government filed a new superseding indictment ("second superseding indictment") which added no new charges but eliminated reference to Shandy. On January 19, 2005, King made a motion to dismiss the indictment on Speedy Trial Act grounds. The government filed an opposition to that motion on January 21, 2005, and on January 26, 2005, filed another superseding indictment ("third superseding indictment"). The motion to dismiss was denied by the district court on that same day.

King's first trial began on February 8, 2005. After several days of trial, King made a motion through his attorney for a mistrial, claiming that he had witnessed jurors sleeping during the trial. After the district court initially denied the motion, additional information presented to the court suggested that jurors had indeed been sleeping during the trial. King renewed his motion for a mistrial, and because only eleven eligible jurors remained, the district court granted the motion. The retrial began on April 19, 2005, and on May 5, 2005, the second jury found King guilty of all but three of the bank fraud charges contained in the third superseding indictment.

King filed a timely notice of appeal.

II

A

King contends that his statutory right to a speedy trial was violated.² He argues that the superseding indictments were attempts by the government to manipulate the seventy day clock provided by the Speedy Trial Act ("STA" or "Act"), 18 U.S.C. § 3161(c)(1), and therefore did not alter the time frame in which he was required to be brought to trial under the Act. The government, in contrast, argues that when co-defendant Shandy was added by way of the first superseding indictment, King's STA clock was measured with respect to Shandy's STA clock. It further argues that because King either asked for, or agreed to, nearly all of the continuances, he cannot use the STA as a sword. Finally, the government argues that there is no evidence in the record that it manipulated the STA clock.

B

Under the STA, a defendant must be brought to trial within seventy days after the indictment or arraignment (whichever comes later) of the last defendant.³ Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) (citing 18 U.S.C. § 3161(h)(7)); United States v. Morales, 875 F.2d 775, 777 (9th Cir.1989). The STA mandates dismissal of the indictment upon defendant's motion if the seventy day limitations period is exceeded. 18 U.S.C. § 3162(a)(2).

In determining whether the Act has been violated, we "must first ascertain when the seventy day clock began running." United States v. Wirsing, 867 F.2d 1227, 1229 (9th Cir.1989). We must therefore consider the effect the superseding indictments filed in this case had on the running of the STA clock.

We have held that the filing of a superseding indictment will not automatically reset the STA clock where the new indictment does not charge a new crime, but only corrects a defect in the original indictment. See United States v. Karsseboom, 881 F.2d 604, 607 (9th Cir.1989); United States v. Clymer, 25 F.3d 824 (9th Cir. 1994). In Clymer, we stated that "[a]lthough the grand jury returned a superseding indictment on April 28, 1989, this action did not restart the Speedy Trial Act clock. When a superseding indictment contains charges which, under double-jeopardy principles, are required to be joined with the original charges, Speedy Trial Act calculations begin from the date of the original indictment." 25 F.3d at 827 n. 2 (emphasis in original). This rule "prevents the government from circumventing the speedy trial guarantee by restarting the speedy-trial clock by obtaining superseding indictments with minor corrections." United States v. Gonzales, 897 F.2d 1312, 1316 (5th Cir.1990).

In Henderson, however, the Supreme Court was faced with a situation where both new charges and an additional defendant were added in a superseding indictment. 476 U.S. at 323, 106 S.Ct. 1871. There, an indictment was returned on July 30, 1980, charging Henderson and two others with two counts of violations of 21 U.S.C. §§ 841(a)(1) and 846. The co-defendants were arraigned on this indictment on July 31, 1980. On August 27, 1980, a five-count superseding indictment was returned against petitioners and a fourth defendant, Peter Bell. Bell was the last defendant arraigned on the superseding indictment on September 3. In deciding when the STA clock began to run for Henderson, the court stated in a footnote that, "[a]ll defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant." Id. at 323 n. 2, 106 S.Ct. 1871. Therefore, "[o]nce Bell was joined with petitioners in the September 3 superseding indictment, their 70-day period was measured with respect to his." Id. The Court did not think that it mattered for STA purposes that Bell was severed from the other co-defendants on November 1, 1982, as soon as trial commenced.

Although we have not squarely addressed the issue previously, other circuits that have considered the effect of the filing of a superseding indictment adding a new defendant have held that the superseding indictment restarts the STA clock for all defendants. In United States v. Barnes, 251 F.3d 251 (1st Cir.2001), the First Circuit held that a superseding indictment returned the day before the speedy trial deadline, containing the same charges and adding only one new, albeit previously known, defendant served to restart the speedy trial clock. Id. at 257. While acknowledging some ambiguity in its prior decisions, the Barnes court found that "Henderson is the beacon by which we must steer ... Resetting the clock upon the return of the superseding indictment synchronized the original defendant (Marla) with the newly-joined defendant (Reynaldo) for purposes of the STA." Id. at 258. The court reasoned that, "[t]his sort of adjustment helps to ensure that the STA will not become a vehicle for altering existing rules of joinder and severance by compelling the government to prosecute properly joined defendants piecemeal." Id. Although the superseding indictment was filed the day before Barnes's STA clock was to expire, the court could not conclude that the delay in adding the additional defendant was unreasonable. Id. at 259.

The Second Circuit also has read Henderson as mandating a single clock amongst all co-defendants, measured by the last-added defendant. In United States v. Gambino, 59 F.3d 353 (2d Cir. 1995), the court stated that "the speedy trial clock in cases involving multiple defendants begins with the running of the clock for the most recently added defendant."⁴ Id. at 362 (citing United States v. Pena, 793 F.2d 486, 489 (2d Cir.1986); United States v. Piteo, 726 F.2d 50, 52 (2d Cir.1983)). The Second Circuit then noted that the "only inquiry made in such multiple defendant cases is whether the delay is `reasonable.'" Id.

We agree that Henderson mandated a single controlling STA clock for all co-defendants in this situation.⁵ And critically there is...