USA. v. Hill

• Decision Date: 18 November 1999
• Docket Number: No. 98-1446,98-1446
• Citation: 197 F.3d 436
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICKY HILL, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 436

197 F.3d 436 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICKY HILL, Defendant-Appellant.

No. 98-1446

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 18,1999

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D.C. No. 98-CR-189-WM

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Kirkland L. Brush, Fort Collins, Colorado, for the appellant.

Andrew A. Vogt, Assistant U.S. Attorney (Thomas L. Strickland, U.S. Attorney, District of Colorado, with him on the brief), Denver, Colorado, for the appellee.

Before BALDOCK, BRISCOE, Circuit Judges, and CROW, District Judge.¹

BRISCOE, Circuit Judge.

Defendant Ricky Hill appeals his convictions and sentences for executing a scheme or artifice to defraud a financial institution in violation of 18 U.S.C. § 1344(1). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

On April 4, 1997, a California business named Alpine Electronics of America (Alpine) issued a check in the amount of $21,826.15 to another California business, Federal Sign, as payment for a project Federal Sign had performed for Alpine. The check, made payable directly to Federal Sign, also read: "Attn: Susan Turner," in reference to Federal Sign's project manager. Although Federal Sign received the check, it was subsequently stolen by an employee before it could be cashed.

By late April 1997, the check made its way to a California resident named Dorothy Halladay. Halladay retained possession of the check until late June 1997, when she traveled from California to Colorado. Once in Colorado, Halladay contacted a friend, Joe Moore, and asked him if he knew how to cash the stolen check. In response, Moore gave Halladay defendant Hill's name and pager number. Halladay contacted Hill and informed him she wanted to cash the stolen check. Hill directed Halladay to meet him the following day, June 27, 1997, at a convenience store in Loveland, Colorado.

Hill and Halladay met as planned at the convenience store in Loveland. After looking at the check, the pair agreed they would each receive approximately $6,000, and the two other individuals involved in the crime (i.e., Moore and the individual who originally gave the check to Halladay) would each receive approximately $5,000. Hill directed Halladay to endorse the check in the name of Susan Turner and then write "Pay to the order of Ricky Hill." ROA, Vol. 4, at 79. After Halladay endorsed the check as directed, Hill took the check, walked across the street to Norwest Bank, and deposited the check in his checking account. Upon his return, Hill advised Halladay that "everything went fine," and it would be three to five days before the check cleared. Id.

Bank records indicate that, after depositing the stolen check, Hill made five withdrawals from the account over a period of approximately ten days: on June 29, 1997, Hill withdrew $200 by ATM withdrawal; on July 2, 1997, Hill withdrew $6,000 by cashing a check payable to "Cash"; on July 7, 1997, Hill withdrew $1,000 by cashing a check payable to "Cash"; on July 7, 1997, Hill withdrew $10,000 by cashing a check payable to "Cash"; and on July 7, 1997, Hill wrote a check in the amount of $1,500 payable to an individual named Courtland James (which check was subsequently negotiated). ROA, Vol. 1, Doc. 13 (indictment). In accordance with their agreement, Hill gave Halladay a cashier's check in the amount of $10,000 (from this amount, Halladay was to pay $5,000 to the individual in California who gave her the stolen check; in addition, Halladay was to subsequently receive an extra $1,000 from Hill). Hill also gave Moore approximately $5,500 for his role in the crime.

The fraud was subsequently discovered, investigated, and reported to authorities by Norwest Bank. In January 1998, Hill was interviewed by an FBI agent and admitted cashing the check and making withdrawals from the proceeds. Hill was subsequently indicted on May 7, 1998, on five counts of executing a scheme or artifice to defraud Norwest Bank in violation of 18 U.S.C. § 1344 (each of the withdrawals made by Hill was charged as a separate count). Hill was ultimately tried and convicted on all five counts and sentenced to concurrent terms of imprisonment of fifteen months, plus restitution in the full amount of the stolen check.

II.

Speedy trial issues

Hill contends the district court violated his statutory and constitutional rights to a speedy trial by granting the government an open-ended continuance in order to resolve issues arising as a result of the panel decision in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (holding that a federal prosecutor violates 18 U.S.C. § 201(c)(2) by offering leniency to a criminal defendant in exchange for testimony). We first address Hill's statutory arguments, followed by his constitutional arguments.

a. Speedy Trial Act

The Speedy Trial Act, designed to protect a criminal defendant's constitutional right to a speedy trial and to serve the public interest in ensuring prompt criminal proceedings, requires that a criminal defendant's trial commence within 70 days after his indictment or initial appearance, whichever is later. See 18 U.S.C. § 3161(C)(1); United States v. Lugo, 170 F.3d 996, 1000-01 (10th Cir. 1999). Certain periods of delay are excluded and do not count toward the 70-day limit. See 18 U.S.C. § 3161(h)(1)-(9). In particular, the Act excludes any period of delay "resulting from a continuance granted by any judge . . . on the basis of its findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).

In order for a continuance to qualify as an excludable "ends-of-justice" continuance under § 3161(h)(8)(A), certain prerequisites must be satisfied. First, the trial court must consider the factors listed in § 3161(h)(8)(B):

(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.

(ii) Whether the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by [the Act].

(iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex.

(iv) Whether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence.

After considering these factors, the trial court must then set forth, "in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). Although the trial court's findings "may be entered on the record after the fact, they may not be made after the fact." United States v. Doran, 882 F.2d 1511, 1516 (10th Cir. 1989). Instead, "[t]he balancing must occur contemporaneously with the granting of the continuance because Congress intended that the decision to grant an ends-of-justice continuance be prospective, not retroactive . . . ." Id.

We review a district court's application of the legal standards of the Act de novo, 18 U.S.C. §§ 3161-74, and its underlying factual findings for clear error. United States v. Spring, 80 F.3d 1450, 1456 (10th Cir.1996). As for a district court's decision to grant an ends-of-justice continuance under § 3161(h)(8), we apply an abuse of discretion standard. United States v. Gonzales, 137 F.3d 1431, 1433 (10th Cir. 1998). In conducting our review, we must keep in mind that an ends-of-justice continuance under subsection (h)(8) is "a 'rarely used tool' for those cases demanding more flexible treatment," Doran, 882 F.2d at 1515 (quoting United States v. Tunnessen, 763 F.2d 74, 76 (2d Cir. 1985)), and the record must clearly establish that the district court considered the proper factors at the time such a continuance was granted. Id. at 1516.

In order to determine whether the continuance granted by the district court in this case properly qualifies as an ends-of-justice continuance, it is necessary to review in detail the procedural history of the case and the events that precipitated the filing and granting of the motion for continuance. Hill was indicted and the Speedy Trial Act clock began running on May 7, 1998. Hill's trial was originally scheduled for July 13, 1998, approximately three days prior to the 70-day speedy trial cut-off of July 16, 1998. On July 7, 1998, the government filed a motion for continuance of the trial date and for establishment of a status conference. ROA, Vol. 1, Doc. 19. In its motion, the government indicated its key witness at trial would be Dorothy Halladay, the woman alleged to have participated with Hill in the charged crimes. Id. at 1-2. According to the government, Halladay had entered into a plea agreement pursuant to which she agreed to plead guilty and testify against Hill in return for the government's promise to file a motion pursuant to U.S.S.G. § 5K1.1 asking that she receive a stipulated sentence of...