U.S. v. Saavedra

• Decision Date: 24 August 1982
• Docket Number: No. 80-1834,80-1834
• Citation: 684 F.2d 1293
• Parties: 11 Fed. R. Evid. Serv. 1185 UNITED STATES of America, Plaintiff-Appellee, v. Carlotta Santana SAAVEDRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1293

684 F.2d 1293

11 Fed. R. Evid. Serv. 1185

UNITED STATES of America, Plaintiff-Appellee, v. Carlotta Santana SAAVEDRA, Defendant-Appellant.

No. 80-1834.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 10, 1981.

Decided Aug. 24, 1982.

Michael J. Treman, Santa Barbara, Cal., for defendant-appellant.

Theresa A. Kristovich, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER and NORRIS, Circuit Judges, and EAST, ^* District Judge.

EAST, District Judge:

Saavedra appeals from her judgments of conviction for conspiracy to commit wire fraud in violation of 18 U.S.C. § 371, and three substantive counts of wire fraud in violation of 18 U.S.C. § 1343. We note jurisdiction and affirm.

The charges arose out of Saavedra's participation in a scheme to fraudulently obtain Western Union money orders by using improperly acquired credit card numbers. Saavedra contends that her constitutional and statutory rights to a speedy trial were violated due to a delay in the trial after the jury had been impaneled. She also claims that there was insufficient evidence to support her convictions on the substantive wire fraud counts, that she was prejudiced by the erroneous admission of hearsay evidence and improper statements by the Government's counsel during closing argument, and that her double jeopardy rights were violated. We reject each of these claims.

I. BACKGROUND

The underlying fraud involved wrongfully charging Western Union money orders to improperly obtained Master Charge numbers. The principal architects of the fraud were inmates in the pro. per. section of the Los Angeles County Jail. The inmates would telephone individuals whose numbers had been obtained from the city phone book, and would pose as law enforcement or bank security personnel checking on credit card problems. The inmate would have the person read off his or her credit card number to "verify" it, and would then call Western Union and order a money order, charging it to the misappropriated credit card number. The inmate would direct the money order to a specific Western Union office, made out to someone on the outside who would pick it up.

The person receiving the money order had to present identification and had to identify the amount of the order, the sender, and when it was sent. Saavedra, using the names Carlotta Santana and Charlotte Carpenter, acted as one of these outside persons. She later deposited most of the money in the inmates' jail accounts.

Saavedra was arrested on November 10, 1977 at the Pomona Western Union office as she signed for a money order in the name of Carlotta Santana, using an identification card in that name.

Evidence concerning the inside part of the operation was provided by one Theodore Rogers, a prisoner and informant. He had observed several of the inmates searching phone books and copying numbers, and overheard them posing as security officers on the phone asking people about their credit card numbers. On one occasion, he retrieved a piece of paper which an inmate had written on during his calls. It had the name Carlotta Santana on it, as well as several names and numbers.

Trial was originally scheduled for September 18, 1980, but was continued to September 30 at Saavedra's request. On that day, a jury was impaneled and sworn to fairly try the case. The District Court proceeded to hear suppression motions. The hearing on these motions continued through October 3. There was a discussion about a stipulated fact settlement, with the Judge expressing exceptional displeasure at the conduct of the Assistant U. S. Attorney. The court on its own motion continued the case until October 9 to allow time for determination of possible guilty pleas. On that date, the U. S. Attorney requested that the Judge voluntarily recuse himself, based upon the strenuous conversations between the court and the prosecutor the previous week. The Judge declined to do so, but continued the case to allow briefing on whether he could voluntarily send it back for reassignment after a jury had been impaneled and sworn. Originally the continuance was for two and one-half weeks, to October 21, 1980, but Saavedra's counsel suggested October 28 to avoid conflict with other matters he had on October 21. The matter was continued to October 27.

On October 27, the Government again suggested that the Judge declare a mistrial and send the case back for reassignment. The Judge again declined to do so, and a formal motion for recusal was made, which the court denied. The court also denied Saavedra's request to poll the jury to determine if they had been prejudiced by the delay. The jury trial commenced on October 28, 1980 and lasted four days. Saavedra was found guilty of each of the counts with which she was charged.

II. DISCUSSION

A. Speedy Trial Claims

Saavedra contends that the twenty-nine day delay between the impaneling of the jury and the beginning of trial violated her Sixth Amendment and statutory rights to a speedy trial, ¹ her Fifth Amendment right to due process, and Federal Rule of Criminal Procedure 48(b).

Saavedra argues that the delay was caused by inappropriate Government activity stemming from an ongoing dispute between the Judge and the U. S. Attorney's women lawyers. She suggests that the Government did not have an adequate reason to seek reassignment of the case, as evidenced by the fact that the Government continued to seek voluntary transfer of the case, rather than making a formal motion for disqualification, after the court had indicated that it would not voluntarily transfer the case and had granted the continuance to permit a formal motion for disqualification to be made.

1. Sixth Amendment

The factors which must be balanced in determining whether post-indictment delay has violated a defendant's Sixth Amendment right to a speedy trial are: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his or her right to a speedy trial, and (4) whether the defendant has been prejudiced by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972); United States v. Saunders, 641 F.2d 659, 665 (9th Cir. 1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); United States v. Morse, 491 F.2d 149, 156-57 (1st Cir. 1974).

The delay complained of here was of only three and one-half weeks duration, one week of which was for the convenience of Saavedra's counsel. Saavedra was not in custody during the time period in question, and she makes no claim that any witnesses became unavailable or suffered loss of memory due to the delay. She contends, however, that the jury may have been prejudiced by the delay or publicity surrounding the conflict between the Judge and the Assistant U. S. Attorney, and that she was prevented from demonstrating any such prejudice because the court refused to permit her to question the jury about it.

We find no likelihood that the delay here prejudiced Saavedra. After being impaneled on October 3, the jury only had to report to court on October 9, and then on October 28 when trial started. At the beginning of the trial, the Judge explained to the jury that he had recently been appointed Chief Judge of the District, and that the delay was in part due to the administrative burdens associated with this responsibility, as well as the legal problems in the case. The court made no remark implicating the defendant for the delay. Even though the court declined Saavedra's request to have the jury polled for prejudice due to the delay, nothing indicates that the delay prejudiced Saavedra in the jury's mind. No claim of prejudicial publicity was raised below, and there is no evidence of any such publicity properly in the record before us.

We reject Saavedra's contention that the delay here was for an improper purpose. Our review of the record convinces us that the government had reason to be concerned about bias from the bench. In refusing to voluntarily transfer the case at the hearing of October 9, the District Court indicated that it was concerned both about the propriety of sending the case back for reassignment without declaring a mistrial, to which the defendant refused to consent, and about the double jeopardy implications of declaring a mistrial over defendant's objection.

The Government researched these questions and submitted a memorandum prior to the hearing on October 28. Although the Government did not make the anticipated formal motion for disqualification, it had ample reason to believe that the court would reconsider its refusal to voluntarily transfer the case if its procedural concerns were answered.

Because the delay here was short, the likelihood of prejudice minimal, and the reasons for the delay permissible, we find no Sixth Amendment violation. For the same reasons, we reject Saavedra's contention that the delay violated the due process claim. We must "determine only whether the action complained of ... violates those 'fundamental conceptions of justice which lie at the base of our civil and political institutions,' ... and which define 'the community's sense of fair play and decency,' " United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (citations omitted). We find no such violation here.

2. Rule 48(b)

The defendant also contends that the court should have dismissed the indictment pursuant to Fed.R.Crim.P. 48(b), which provides that the court may dismiss an indictment, information or complaint for unnecessary delay in bringing a defendant to trial. This rule grants District Courts much discretion, however, and dismissal on speedy trial grounds is not mandatory unless the defendant's constitutional speedy trial rights have been violated. United States v. Edwards, 577 F.2d 883, 887 (5th Cir.), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d...