U.S. v. Lewis, 91-10280

• Decision Date: 16 September 1992
• Docket Number: No. 91-10280,91-10280
• Citation: 980 F.2d 555
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard Stanton LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 555

980 F.2d 555

UNITED STATES of America, Plaintiff-Appellee, v. Howard Stanton LEWIS, Defendant-Appellant.

No. 91-10280.

United States Court of Appeals Ninth Circuit.

Submitted Sept. 16, 1992 ^*.

Decided Nov. 23, 1992.

Allen B. Bickart, Phoenix, Ariz., for defendant/appellant.

Mark E. Aspey, Asst. U.S. Atty., D. Ariz., Phoenix, Ariz., for plaintiff/appellee.

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

Before CHOY, ALARCON, and HALL, Circuit Judges.

CHOY, Circuit Judge:

Howard Stanton Lewis appeals from his judgment of conviction under 18 U.S.C. § 2314 alleging that it should be reversed because of various violations of his rights under the Speedy Trial Act ("STA"), 18 U.S.C. §§ 3161-3174 (1985 & Supp.1992). Finding these contentions without merit, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 20, 1990, a one-count complaint and arrest warrant were issued by the District Court for the District of Arizona charging Lewis with Interstate Transportation of Money Obtained by Fraud in violation of 18 U.S.C. § 2314. On that date Lewis was in custody in San Jose, California on unrelated charges.

On July 24, 1990, while incarcerated in San Jose, Lewis was served with a grand jury subpoena from the District of Arizona requiring him to produce true and natural handwriting exemplars. ¹ Lewis's attorney at that time contacted counsel for the government and suggested that the government use handwriting exemplars already provided by Lewis to United States Postal Inspectors in the California case ("Postal exemplars"). The government acquiesced in using the Postal exemplars in lieu of enforcing the subpoena and Lewis's attorney agreed to provide further exemplars should they prove unsatisfactory.

On September 26, 1990 the California charges were dropped and on September 27th, pursuant to the outstanding Arizona warrant, Lewis was arrested and transported to Arizona. Lewis first appeared before an Arizona magistrate judge on October 19, 1990. At this time a public defender was assigned to represent him, his detention and preliminary hearings were scheduled for October 26th and he was ordered temporarily detained as a flight risk.

At the October 26th hearing Lewis waived his right to a preliminary hearing and the court ordered his detention continued. According to the government, Lewis also waived his right to a speedy indictment when, in order to facilitate already proceeding plea negotiations, he requested that the government delay presenting the matter to the grand jury and stipulated to a two-week extension of the 30-day speedy indictment deadline under 18 U.S.C. § 3161(b).

On November 9th, as a result of ongoing plea negotiations, the government extended Lewis a plea offer. On November 14th Lewis was indicted ² and was arraigned on November 21st, at which time the court set trial for January 15, 1991 and a pretrial motions deadline for December 6th. Thereafter, plea negotiations continued. On December 11th, Lewis moved the court for a two-week extension of the pretrial motions deadline citing "extensive plea negotiations" and the need for "additional investigation" as reasons why the delay was needed. The court granted the motion on December 12th, giving Lewis until December 20th to prepare and file pretrial motions.

Lewis rejected the government's plea offer sometime prior to December 21st, although neither party is certain of the exact date. On December 21st, when the government notified Lewis it formally was withdrawing the plea offer and that it might move for a trial continuance, Lewis indicated that he would oppose such a request. Upon Lewis's rejection of its plea offer, the government requested the FBI to "expeditiously complete its analysis" of the Postal exemplars. ³ On January 7, 1991 the government first learned that the Postal exemplars could not be used because of their "distortion."

On January 2, 1991 Lewis moved to reset the trial date. A hearing on the motion was scheduled for January 7th. At the January 7th hearing Lewis withdrew his motion to reset the trial date. Also at that hearing, the government informed the court that it would have problems using the Postal exemplars and that it might move for a trial continuance. The court then ordered Lewis to provide new exemplars.

While he was being escorted to a holding cell after the January 7th hearing, Lewis tripped on some stairs and fell. At the time of the fall Lewis's hands were cuffed behind his back and he complained of pain in his right rib and shoulder area and upper nose. Although at the time a guard offered him medical attention, Lewis declined and indicated that he would wait to see a doctor when he returned to the jail. Lewis, however, never did seek medical treatment.

Later that same afternoon, an FBI agent went to Lewis's holding cell to obtain the court-ordered exemplars (the "January 7th exemplars"). Upon learning of Lewis's fall and alleged injuries, the agent asked Lewis if they would affect his ability to give the handwriting exemplars. Lewis responded that he was not sure and provided the exemplars.

On January 8th the government sent the January 7th exemplars to the FBI lab in Washington, D.C. where they arrived late in the afternoon of January 9th. After an initial review, the examiner concluded that they appeared "stilted and not free flowing and probably not in the defendant's normal, natural handwriting," and that true and natural exemplars needed to be obtained to assure their authenticity and eliminate attempts to disguise.

On January 9th the government moved for a trial continuance and on January 10th a telephonic hearing was held on that motion. The magistrate judge granted the motion and continued the trial until February 19, 1991--excluding 41 days from the 70-day calculation under § 3161(c)(1). ⁴ In its written order the court concluded that under §§ 3161(h)(1)(F) and (8)(A), the "ends of justice" were served best by granting the continuance and outweighed the interests of the public and defendant in a speedy trial. The court also found that, due to Lewis's actions, failure to grant the continuance would make continuation of the proceeding impossible and result in a miscarriage of justice and would deny the government reasonable time to prepare effectively for trial "taking into account the government's exercise of due diligence and proceeding in good faith."

On February 22, 1991 the jury found Lewis guilty on all counts. He was sentenced to a term of twenty years imprisonment and ordered to pay $25,000 restitution.

II. STANDARDS OF REVIEW

We review factual findings regarding the STA for clear error and questions of law concerning the application of the Act de novo. United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir.1989); United States v. Berberian, 851 F.2d 236, 239 (9th Cir.1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989); see also United States v. Taylor, 487 U.S. 326, 335-37, 108 S.Ct. 2413, 2418-20, 101 L.Ed.2d 297 (1988). We will reverse a district court's finding of an "ends of justice" exception only if there is clear error. United States v. Murray, 771 F.2d 1324, 1327 (9th Cir.1985).

III. ANALYSIS

1. Speedy Indictment--Waiver

Under 18 U.S.C. § 3161(b) ⁵ a defendant must be indicted within 30 days of his arrest unless that time is extended for one of eight reasons set out in § 3161(h). If the indictment is not timely filed the defendant is entitled to have the charges dismissed. 18 U.S.C. § 3162(a)(1). Lewis argues that the indictment in this case was not timely filed.

Although Lewis admits that he did not specifically contest the timeliness of the indictment in the district court, he nonetheless contends we should review his objections on appeal given our holding in United States v. Pollock, 726 F.2d 1456 (9th Cir.1984). He argues that, under Pollock, his objections in the district court to violation of his speedy trial right suffice as proper objections regarding claimed violations of his right to a speedy indictment, and that he therefore is not barred from raising the issue on appeal by our general rule against reviewing questions not first raised in the district court.

Lewis, however, misinterprets our holding in Pollock and his reliance on that decision is inapposite.

In Pollock we held that, despite the district court's and the parties' failure to raise the issue below, because of the specific circumstances of the case we could recognize sua sponte that the defendant was not indicted within the prescribed time frame. Id. at 1464. We focused on two facts in reaching this conclusion: the defect in timing appeared on the face of Pollock's indictment; ⁶ and, he had objected to the indictment on STA grounds in the district court. ⁷ Thus, we concluded that "where the defendant makes a Speedy Trial Act objection and the indictment does not on its face comply with that Act, this court may consider such a defect if it was not specifically raised below." Id. (emphasis added).

Lewis interprets the phrase "Speedy Trial Act objection" in this conclusion as meaning that if a defendant makes any STA objection in the district court (including an objection to the timeliness of his trial ) the objection suffices as raising the speedy indictment question for the purpose of preserving the issue for appellate review. This reading of Pollock, however, is too literal and ignores other discussion of the issue as well as the facts of the case.

In Pollock the defendant's objection to the district court's exclusion of time from the 30-day indictment calculation was adequate to alert the district or appellate court to examine whether or not the indictment was timely. Id. at 1464. Lewis, however, made no objections regarding the indictment in this case; his only STA objections related to the timeliness of the trial. Where the only STA objections raised in the district court relate to the timeliness of the trial, it is unreasonable...