U.S. v. Spring

• Decision Date: 02 April 1996
• Docket Number: No. 94-4262,94-4262
• Citation: 80 F.3d 1450
• Parties: 44 Fed. R. Evid. Serv. 395 UNITED STATES of America, Plaintiff--Appellee, v. Bruce Derek SPRING aka Bruce Derek Walls, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1450

80 F.3d 1450

44 Fed. R. Evid. Serv. 395

UNITED STATES of America, Plaintiff--Appellee, v. Bruce Derek SPRING aka Bruce Derek Walls, Defendant--Appellant.

No. 94-4262.

United States Court of Appeals Tenth Circuit.

April 2, 1996.

Appeal from the United States District Court for the District of Utah, Central Division; David Sam, Judge (D.C. No. 93-CR-215-S).

Jenine Jensen, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colorado, for defendant-appellant.

Wayne T. Dance, Assistant United States Attorney (Scott M. Matheson, Jr., United States Attorney, with him on the briefs), Salt Lake City, Utah, for plaintiff-appellee.

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant Bruce Derek Spring, aka Bruce Derek Wells, appeals his conviction and 802 month prison sentence arising out of firearms violations and a series of bank robberies in Utah and Colorado, in which Mr. Spring and Matthew Corey Monitz were involved. For the following reasons, we affirm in part and reverse and remand in part.

BACKGROUND

Mr. Spring was arraigned on August 19, 1993 on a five-count indictment charging him with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 2 and 922(g); one count of aiding and abetting Mr. Monitz in the commission of an armed bank robbery at West One Bank in Kearns, Utah, in violation of 18 U.S.C. §§ 2 and 2113(d); one count of aiding and abetting Mr. Monitz in the using and carrying of a pistol in relation to the West One Bank robbery, in violation of 18 U.S.C. § 924(c); and one count of aiding and abetting Mr. Monitz in the commission of a bank robbery at First Security Bank in Salt Lake City, Utah, in violation of 18 U.S.C. §§ 2 and 2113(a). Mr. Spring and Mr. Monitz were tried separately. Trial for Mr. Spring was set for October 4, 1993.

A superseding indictment was filed on September 8, 1993, adding three counts against Mr. Spring: (1) bank robbery of the University of Utah Credit Union in Salt Lake City, Utah, in violation of 18 U.S.C. §§ 2 and 2113(a); (2) conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371; and (3) aiding and abetting Mr. Monitz in the using and carrying of a firearm in relation to a conspiracy to commit bank robbery, in violation of 18 U.S.C. §§ 2 and 924(c). The superseding indictment also alleged that several of the crimes charged in the original indictment were committed in furtherance of the conspiracy.

After several continuances, pursuant to Mr. Spring's request, a new trial date was set for February 7, 1994. On January 5, 1994, the grand jury filed a second superseding indictment against Mr. Spring, adding three more counts: (1) making a false statement on a federal form during the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6); (2) aiding and abetting Mr. Monitz in the commission of an armed bank robbery at First Security Bank in Park City, Utah, in violation of 18 U.S.C. §§ 2 and 2113(d); and (3) aiding and abetting Mr. Monitz in the using or carrying of a pistol in relation to a bank robbery, in violation of 18 U.S.C. §§ 2 and 924(c).

Because of a conflict of interest resulting from the First Security Bank robbery charge, Mr. Spring's counsel requested to withdraw from the case. A hearing was held on the withdrawal motion on January 21, 1994. At the hearing, Mr. Spring stated that he wished new counsel to be appointed, and wanted to proceed to trial rather than enter into a plea agreement. The court therefore granted Mr. Spring's counsel's motion to withdraw and vacated the February 7 trial date. The government attorney then inquired: "Would there be then an order at this time that from February the 7th to the setting of the new trial date with new counsel being excluded under the Speedy Trial Act for the appropriate reasons of preparation time needed by new counsel?" R. Vol. VIII at 16. The court responded:

Yes, it would appear the provisions of the Speedy Trial Act would be tolled pending the appearance of new counsel and new counsel's indication of preparation time. But I think we ought to have new counsel appear as soon as that is reasonably possible so that we can have these new dates set.

Id. The court then directed the government attorney to "prepare an order reflecting the granting of the motion and also the tolling of the Speedy Trial Act." Id. at 17.

The order memorializing the court's findings in the January 21 hearing was not in fact entered until November 22, 1994. The Order stated in part:

The Court ... finds that new counsel could not reasonably be prepared for trial on February 7, 1994, the currently scheduled trial date in this matter. Thus, the ends of justice served by a continuance in this matter outweigh the best interest of the public and the defendant in a speedy trial.

....

IT IS FURTHER ORDERED that jury trial in this matter currently scheduled to commence on February 7, 1994, is vacated and will be rescheduled upon appointment of new counsel for defendant. The continuance resulting from this appointment of new counsel is necessary to insure continuity of counsel for defendant and to allow reasonable time necessary for effective preparation by new counsel.

IT IS FURTHER ORDERED that the time involved in this matter, from January 21, 1994 to the new trial date to be set at a later time, is excluded under the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h)(8)(A), (B)(ii) and (B)(iv).

R. Vol. I at Tab 163.

New counsel was appointed for Mr. Spring on the day of the hearing, January 21, and on February 1, a telephone conference occurred between the court, Mr. Spring's new counsel and the prosecutor, in which a new trial date was set for March 28, 1994. Again, an order memorializing that conference was not entered until November 22, 1994.

On March 21, 1994, the district court conducted a hearing on a letter it had received from Mr. Spring demanding trial within 30 days. ¹ The court questioned Mr. Spring about any complaints he had concerning his attorney or delays in his trial. Mr. Spring stated that he had no complaints about his current attorney, and he requested a continuance so that his attorney could adequately prepare for trial. R. Vol. IX at 9-10. Mr. Spring's attorney filed a written motion to continue the case on March 24, and at the hearing that same day on the motion, Mr. Spring responded affirmatively when the court asked him if he "waive[d][his] rights under the Speedy Trial Act pursuant to what has been discussed here." R. Vol. X at 7. At the end of the March 24 hearing, the court found that the ends of justice would best be served by granting a continuance, and the court determined that the Speedy Trial Act was tolled pursuant to 18 U.S.C. § 3161(h)(8)(B)(i), (ii), (iii) and (iv). Id. at 9-10. Trial was scheduled for June 20, 1994.

After several more continuances, including one sought by the government, Mr. Spring's trial finally began on September 7, 1994. Mr. Spring was convicted by the jury on all eleven counts of the second superseding indictment. He was sentenced on November 22, 1994. At his sentencing hearing, the government asked the district court to make findings concerning Mr. Spring's prior convictions for the purpose of sentencing him as an armed career criminal and a career offender. ² The court adopted the factual findings and guideline recommendations contained in the presentence report, and concluded that Mr. Spring qualified as both a career criminal offender and an armed career criminal offender. The court determined his total offense level to be 34, with a criminal history category of VI. Mr. Spring was sentenced to a total of 802 months imprisonment, calculated as follows: 262 months for each conviction on counts one through six and counts eight and ten (the § 922(g) firearms violations and the bank robbery violations), to be served concurrently; sixty months for his conviction on count seven (the § 924(c) aiding and abetting in the use or carrying of a weapon in relation to a bank robbery violation), to be served consecutively to the other counts; and two 240 month sentences, one for each conviction on counts nine and eleven (the other § 924(c) violations), both to be served consecutively to the other counts. The court also ordered restitution by Mr. Spring in the amount of $30,996.07. ³ R. Vol. XX at 15-17. This appeal followed.

Mr. Spring argues: (1) his statutory right to a speedy trial under the Speedy Trial Act was violated because ninety-two countable days had elapsed from the filing date of the indictment to his trial; (2) there was insufficient evidence supporting his conviction for the robbery of the University of Utah Credit Union and the court made an erroneous evidentiary ruling in connection with that count; (3) he was erroneously sentenced as an armed career criminal and a career offender, because his prior convictions do not qualify as three violent felonies or two crimes of violence; (4) the restitution order must be amended because a portion of the order resulted in a restitution amount that exceeded the victim's total loss; and (5) the recent Supreme Court decision of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) requires reversal of one of his § 924(c) convictions (on count eleven, for aiding and abetting in the use or carrying of a firearm during and in relation to a conspiracy to commit bank robbery.) ⁴

I. Speedy Trial Act

We review de novo the trial court's application of the legal standards of the Speedy Trial Act, 18 U.S.C. §§ 3161-74, and we review for clear error its factual findings. United States v. Pasquale, 25 F.3d 948, 950 (10th Cir.1994). When we review the district court's decision to grant a continuance under § 3161(h)(8), we apply an abuse of discretion standard "[w]hen the court has granted a continuance after weighing established facts proper to...