U.S. v. Maxwell, 03-2042.

• Citation: 351 F.3d 35
• Decision Date: 03 December 2003
• Docket Number: No. 03-2042.,03-2042.
• Parties: UNITED STATES of America, Appellee, v. Peggy L. MAXWELL, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

351 F.3d 35

UNITED STATES of America, Appellee, v. Peggy L. MAXWELL, Defendant, Appellant.

No. 03-2042.

United States Court of Appeals, First Circuit.

Heard November 4, 2003.

Decided December 3, 2003.

Barry S. Pollack, with whom Karen A. Pickett and Donnelly, Conroy & Gelhaar, were on brief for Defendant-Appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for Appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Senior Circuit Judge.

STAHL, Senior Circuit Judge.

Defendant-appellant Peggy Maxwell appeals from her conviction and sentence on one count of wire fraud, in violation of 18 U.S.C. § 1343. She challenges (1) the district court's denials of her motions to dismiss on statutory and constitutional speedy trial grounds, and (2) the district court's inclusion for sentencing purposes of certain losses as "relevant conduct" attributable to her.

I. BACKGROUND

Maxwell and her co-defendants Eduardo McIntosh and Cal DeAson were indicted on December 6, 2001, on one count of conspiracy, in violation of 18 U.S.C. § 371; two counts of mail fraud, in violation of 18 U.S.C. § 1341; and fifteen counts of wire fraud, in violation of 18 U.S.C. § 1343. All of the charges were in connection with an investment fraud and Ponzi scheme involving two sets of investors that ran from October 1998 until December 2001. McIntosh, the leader and primary beneficiary of the scheme, used most of the money obtained for personal expenses, but also used some of the money from the second set of investors, recruited in May 1999, to repay the first set of investors, recruited in October 1998. DeAson and Maxwell acted as McIntosh's agents, recruiting investors and channeling investor money to McIntosh.

Maxwell and McIntosh were arraigned on January 4, 2002, and on January 14, 2002, they entered not guilty pleas. On March 5, 2002, Maxwell moved to sever her case from her co-defendants. The Magistrate Judge issued a final status report as to Maxwell on March 7, 2002, stating that her case was being returned to the district court. The Magistrate Judge did not issue a final status report for McIntosh and DeAson until October 1, 2002. The same day, the district court issued a notice that it would hold a change of plea hearing for McIntosh and a scheduling conference for Maxwell and DeAson on November 1, 2002. Between March 7 and October 1, 2002, the remaining co-defendants and the government agreed to several continuances.

The district court first addressed Maxwell's severance motion at the November 1 scheduling conference, when it indicated that it would hold a hearing on the motion. Maxwell withdrew the motion the same day.

On November 4, 2002, Maxwell filed a motion to dismiss the indictment contending that she had been denied the right to a speedy trial under the Speedy Trial Act (STA), 18 U.S.C. § 3161. She alleged that the government's motions for continuances were neither timely nor "properly grounded." As a result, she claimed, the Magistrate Judge never had the opportunity to address fully whether the "ends of justice" served by the continuances "outweigh[ed] the best interest of the public and the defendant in a speedy trial."

On December 24, 2002, the district court denied the motion, finding no STA violation. United States v. Maxwell, 247 F. Supp.2d 10, 15 (D.Mass.2002) ("Maxwell I"). The court first held that Maxwell's STA clock began running on January 5, 2002, the day after her arraignment. See id. at 12. Second, the court found excludable the period between January 5 and March 7, 2002 because her co-defendant DeAson was not arraigned until March 6, 2002. See id. at 12. Third, the court found that Maxwell's motion to sever resulted in excludable delay from March 5 through November 1, 2002, pursuant to 18 U.S.C. § 3161(h)(1)(F) as "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 247 F.Supp.2d at 13. The court stated that it was relying on its

usual practice in multi-defendant cases ... not [to] decide any pending motions until the Magistrate Judge [has] completed her work concerning all of the defendants before her. Maxwell had not requested any variance from this practice or an expedited ruling on her Motion to Sever.

Id. at 14.

On February 13, 2003, Maxwell moved to dismiss the indictment on the basis that her Sixth Amendment constitutional right to a speedy trial had been violated. The district court denied this motion on March 3, 2003, finding "lack of any unusual prejudice caused by the passage of time." United States v. Maxwell, 247 F.Supp.2d 25, 32 (D.Mass.2003) ("Maxwell II").

On March 7, 2003, pursuant to a plea agreement, Maxwell entered a conditional guilty plea to one count of wire fraud and reserved the right to appeal the district court's denial of her motions to dismiss the indictment on speedy trial grounds under the STA and the Sixth Amendment. She was sentenced to eighteen months' imprisonment, three years' supervised release, and a $30,000 fine. This appeal followed.

II. DISCUSSION

A. Speedy Trial Act

We review the district court's denial of a motion to dismiss based upon the Speedy Trial Act de novo as to legal rulings and for clear error as to factual findings. United States v. Scantleberry-Frank, 158 F.3d 612, 614 (1st Cir.1998).

The STA provides that a defendant be tried within seventy days of "the filing date (and making public) of the information or 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. § 3161(c)(1). The STA, however, "mandates the exclusion of certain periods of delay in calculating" the seventy days. United States v. Salimonu, 182 F.3d 63, 67 (1st Cir.1999); see 18 U.S.C. § 3161(h)(1)-(9).

For Maxwell, the period began on January 5, 2002, the day after her arraignment. The period from January 5 to March 7, 2002 is excludable because DeAson was not arraigned until March 6, 2002. See United States v. Barnes, 251 F.3d 251, 258-59 (1st Cir.2001) ("[T]he STA clock begins to run anew on the date of the last co-defendant's arraignment.").

The issue on appeal is whether the period from March 5, 2002 to November 1, 2002 is excludable due to Maxwell's motion to sever. The STA provides for exclusion of "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). Maxwell argues that a period is excludable under 18 U.S.C. § 3161(h)(1)(F) only after a court actually sets a date for a hearing on a pending motion. According to Maxwell, this means that only thirty days from the date the government had submitted its opposition to the motion to sever — March 19, 2002 — should be excluded, pursuant to 18 U.S.C. § 3161(h)(1)(J).¹ Hence, she contends that the STA clock began to run again on April 19, 2002 and expired seventy days later on June 28, 2002.

We agree with the district court that "such a requirement should not be read into the statute." Maxwell I, 247 F.Supp.2d at 13. Maxwell's interpretation would require an on-the-record determination that a hearing on a particular motion is necessary. That Congress specifically required a finding on the record for continuances under 18 U.S.C. § 3161(h)(8)(A) indicates that Congress did not intend the same for time exclusions under 18 U.S.C. § 3161(h)(1)(F). See United States v. Grosz, 76 F.3d 1318, 1325 (5th Cir.1996) (finding that "the language of Subsection F does not impose a requirement that the court formally set a motion for hearing"); cf. Henderson v. United States, 476 U.S. 321, 326-28, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) (interpreting 18 U.S.C. § 3161(h)(1)(F) not to have a reasonableness requirement because Congress placed such a requirement in 18 U.S.C. § 3161(h)(7) but not in sections (1)-(6), as well as recognizing Congressional intent that 18 U.S.C. § 3161(h)(1)(F) be read broadly with any limitations coming from circuit or district court rules rather than the statute itself).

In Salimonu, we affirmed in a similar case where the district court scheduled a hearing on the defendant's reconsideration motions a full two years after those motions were filed. The district court ruled that the time between the filing of the motions and the date of the hearing was excludable under 18 U.S.C. § 3161(h)(1)(F). See 182 F.3d at 67-68. That is, the district court concluded, because the motions required a hearing, the long delay in holding the hearing was irrelevant. See id. The defendant argued that the court's determination that a hearing was "required" was in error. See id. at 68. In affirming, we first noted that if a hearing, in fact, was not required, the "error would be significant; in other words, in contrast to the potentially unreasonable time that is excluded from STA calculations when a hearing is required, only 30 days may be excluded when a hearing is not required." Id. We deferred, however, to the district court's conclusion that the reconsideration motions were of the type that required a hearing, and that absent "obvious subterfuge" by the district court, "we are loath to question the court's judgment." Id. As a result, the time between the filing of the motion and the hearing was excludable. See id.

Salimonu guides us to the same conclusion here. After reading Maxwell's "skillfully written" motion to sever, an accompanying sixteen-page memorandum, three exhibits, and the government's thirteen-page opposition, the district court ultimately concluded that the motion raised complex issues and required a hearing. Maxwell I, 247 F.Supp.2d at 14. Even though it took the court eight months to state on the record that it had decided this, we hold that 18 U.S.C. § 3161(h)(1)(F)...