FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10058
Plaintiff-Appellee,
v. D.C. No.
3:04-cr-00217-PJH
BEAU LEE LEWIS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
December 7, 2009—San Francisco, California
Filed July 20, 2010
Before: A. Wallace Tashima, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Graber
10337
UNITED STATES v. LEWIS 10341
COUNSEL
Allen M. Brabender, United States Department of Justice,
Environment and Natural Resources Division, Washington,
D.C., for the plaintiff-appellee.
Dean D. Paik, Rogers Joseph O’Donnell, San Francisco, Cali-
fornia, for the defendant-appellant.
OPINION
GRABER, Circuit Judge:
Defendant Beau Lee Lewis appeals the district court’s deci-
sion to dismiss his indictment for violation of the Speedy
Trial Act, 18 U.S.C. § 3161, without prejudice. We affirm.
BACKGROUND
Defendant’s several felony convictions relate to an interna-
tional conspiracy to smuggle protected wildlife into the
United States. This is Defendant’s third appeal; our earlier
opinions detail the underlying facts, which we need not repeat
here. United States v. Lewis, 349 F.3d 1116 (9th Cir. 2003)
(per curiam) (“Lewis I”); United States v. Lewis, 518 F.3d
1171 (9th Cir. 2008) (“Lewis II”).
10342 UNITED STATES v. LEWIS
In Lewis I, we identified a Speedy Trial Act violation
because of a 117-day period of pretrial delay from January 13
to May 9, 2000, and remanded for the district court to decide
whether dismissal should be with or without prejudice. 349
F.3d at 1121-22. On remand, the court considered only that
period of delay and decided that dismissal should be without
prejudice. After re-indictment and a second trial resulted in
the present convictions, Defendant appealed again. In Lewis
II, we reversed and remanded once more, because the district
court should have considered all periods of delay, not just the
period discussed in Lewis I. Lewis II, 518 F.3d at 1176.
Following the second remand, the case was reassigned to
another judge, who considered all periods of delay and
decided the remaining issues in two stages. First, in an order
dated December 10, 2008, the district court held that, “at
most, 145 days was not excludable” but that, if the court
“were permitted by the Ninth Circuit’s remand order to con-
sider the § 3161(h)([6]) grounds for exclusion with respect to
the January 13, 2000-May 9, 2000 period, it would find that
117-day period is indeed excludable under § 3161(h)([6]).”
The court further stated that, “[i]f that were the case, then no
[Speedy Trial Act] violation would have occurred because
only 28 days would have passed untolled.” If the court were
“not permitted to revisit the 117-day period ruled on by the
Ninth Circuit, then [a Speedy Trial Act] violation would
indeed have occurred, warranting dismissal of the superseding
indictment, and this court is thus required to consider whether
or not the dismissal should be with or without prejudice.” The
district court then directed the parties to assume that 145 days
went untolled under the Speedy Trial Act and ordered them
to file briefs addressing whether the dismissal should be with
or without prejudice.
The district court issued a second order on February 2,
2009, holding that the indictment should be dismissed without
prejudice. In its analysis, the court held that Defendant’s
offenses were “serious” under 18 U.S.C. § 3162(a)(2), that the
UNITED STATES v. LEWIS 10343
delays were not the result of neglect or bad faith, that penaliz-
ing the government by dismissing with prejudice is not war-
ranted, and that the delay prejudiced Defendant only slightly.
Thus, finding “that three of the four factors favor the govern-
ment, while one tips only slightly in Defendant’s favor,” the
district court dismissed the indictment without prejudice.
Defendant timely appeals.
STANDARDS OF REVIEW
We review de novo a district court’s application of, and
questions of law arising under, the Speedy Trial Act. United
States v. George, 85 F.3d 1433, 1436 (9th Cir. 1996); United
States v. Springer, 51 F.3d 861, 864 (9th Cir. 1995). We
review for abuse of discretion a district court’s decision to
dismiss an indictment without prejudice for a violation of the
Speedy Trial Act. United States v. Taylor, 487 U.S. 326, 332
(1988). We review the district court’s findings of fact for
clear error. Id. at 337.
DISCUSSION
A. Excludable Periods of Delay
[1] The Speedy Trial Act generally requires that trial begin
within 70 days of a defendant’s indictment or first appearance
before a judicial officer, whichever occurs later. 18 U.S.C.
§ 3161(c)(1). If trial does not begin within the requisite time
period and the defendant moves for dismissal before trial, the
court must dismiss the indictment, either with or without prej-
udice. Id. § 3162(a)(2). But other provisions of the Speedy
Trial Act allow for tolling of the 70-day limit in specified cir-
cumstances. One such provision permits the district court to
exclude “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.” Id.
§ 3161(h)(1)(D). Another provision excludes a “reasonable
period of delay when the defendant is joined for trial with a
10344 UNITED STATES v. LEWIS
codefendant as to whom the time for trial has not run and no
motion for severance has been granted.” Id. § 3161(h)(6).1
[2] Section 3161(h)(7) excludes delays resulting from a
continuance when the court finds that the “ends of justice
served by taking [that] action outweigh the . . . interest of the
public and the defendant in a speedy trial.” The factors,
among others, that a court must consider in deciding whether
to grant a continuance under this section are:
(i) Whether the failure to grant such a continuance
in the proceeding would be likely to make a continu-
ation 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 this sec-
tion.
....
(iv) Whether the failure to grant such a continu-
ance 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 effec-
tive preparation, taking into account the exercise of
due diligence.
1
In this appeal, Defendant does not dispute the propriety of trying him
jointly with his codefendants.
UNITED STATES v. LEWIS 10345
Id. § 3161(h)(7)(B).
For clarity, we will divide the contested periods of delay
into four parts.
1. May 6, 1999 - July 29, 1999
[3] The district court held that the period from May 6,
1999, through July 28, 1999, was excludable under 18 U.S.C.
§ 3161(h)(7) because of the complexity of the case. A district
court must satisfy two requirements when it grants an “ends
of justice” continuance under § 3161(h)(7): “(1) the continu-
ance must be specifically limited in time; and (2) it must be
justified on the record with reference to the facts as of the
time the delay is ordered.” United States v. Lloyd, 125 F.3d
1263, 1268 (9th Cir. 1997) (internal quotation marks and
brackets omitted). The court
must conduct an appropriate inquiry to determine
whether the various parties actually want and need a
continuance, how long a delay is actually required,
what adjustments can be made with respect to the
trial calendars or other plans of counsel, and whether
granting the requested continuance would “outweigh
the best interest of the public and the defendants in
a speedy trial.”
Id. at 1269 (brackets omitted) (quoting 18 U.S.C.
§ 3161(h)(7)(A)).
[4] Defendant’s case was joined with those of several
codefendants, and there were ongoing investigations in Ari-
zona and Texas. Id. Where defendants are properly joined for
trial, as here, the case’s complexity necessarily must be
assessed with reference to the joint trial. United States v. Day-
child, 357 F.3d 1082, 1091 (9th Cir. 2004). This case
involved voluminous discovery, a large number of counts,
several defendants, ongoing investigations in other districts,
10346 UNITED STATES v. LEWIS
and potential witnesses from other countries. We have upheld
“ends of justice” continuances because of complexity in simi-
lar circumstances. See, e.g., United States v. Dota, 33 F.3d
1179, 1183 (9th Cir. 1994) (holding that an “ends-of-justice
continuance may be justified on grounds that one side needs
more time to prepare for trial”); United States v. Butz, 982
F.2d 1378, 1381 (9th Cir. 1993) (holding that an “ends of jus-
tice” continuance is proper when a case is complex and
involves multiple “codefendants and multiple overt acts
occurring in [multiple] states,” and in which the complexity
“outweigh[s] the interests of individual defendants”).
[5] Defendant agrees that the case is complex, but argues
that a § 3161(h)(7) exclusion also must be analyzed separately
under § 3161(h)(6) for reasonableness. Defendant is correct.
Our precedent instructs us that, in order to attribute a codefen-
dant’s excludable delay under § 3161(h)(7) to a defendant, the
delay must meet the reasonableness requirement of
§ 3161(h)(6)2. See United States v. Messer, 197 F.3d 330, 336
(9th Cir. 1999) (“The attribution of delay to a codefendant . . .
is limited by a reasonableness requirement . . . .”); Butz, 982
F.2d at 1381-82 (“To resolve Butz’s speedy trial claim, we
must determine whether the court properly granted the contin-
uance and whether applying this excludable time to Butz
made the resulting delay reasonable.”).
[6] Relying on this premise, Defendant then asserts that the
2
Although the Supreme Court has never held that a delay attributed to
a codefendant must be reasonable in order to exclude that time from a
defendant’s speedy trial clock, it has held that subsections of § 3161 may
need to be analyzed together before properly excluding a period of delay.
See Bloate v. United States, 130 S. Ct. 1345 (2010) (holding that the time
granted to prepare pretrial motions is not automatically excludable under
§ 3161(h)(1), but may be excluded only when a court grants a continuance
based on appropriate findings under § 3161(h)(7)). Thus, our circuit’s pre-
cedent requiring that § 3161(h)(7) be read in conjunction with
§ 3161(h)(6) with regard to delays that are attributed to a codefendant
comports with Supreme Court precedent.
UNITED STATES v. LEWIS 10347
district court failed to make the required reasonableness find-
ing for the period May 6, 1999, to July 29, 1999. Defendant
is mistaken. During the May 6, 1999, hearing, the district
court stated: “[I]t seems to the court that ninety days would
be a reasonable time frame to exclude time further . . . .” The
district court’s finding of reasonableness was not clearly erro-
neous. The court found that 90 days would be the “outer
boundary” of a reasonable delay for joinder, given the govern-
ment’s diligent efforts to obtain the wildlife dealer’s presence
and the minimal prejudice to Defendant. Thus, we hold that
the period May 6, 1999, to July 29, 1999—less than 90 days
—was properly excluded from Defendant’s speedy trial clock.
2. July 29, 1999 - September 16, 1999
[7] The district court held that the period from July 29,
1999, through September 15, 1999, is excludable under both
§ 3161(h)(6) and 3161(h)(7). During this period, the govern-
ment filed a second superseding indictment, which added two
codefendants to the case. “Generally speaking, defendants
jointly charged are to be jointly tried.” United States v. Esca-
lante, 637 F.2d 1197, 1201 (9th Cir. 1980). Reasons for
jointly trying joined defendants include these:
It would impair both the efficiency and the fairness
of the criminal justice system to require, in all these
cases of joint crimes . . ., that prosecutors bring sepa-
rate proceedings, presenting the same evidence again
and again, requiring victims and witnesses to repeat
the inconvenience (and sometimes trauma) of testify-
ing, and randomly favoring the last-tried defendants
who have the advantage of knowing the prosecu-
tion’s case beforehand.
Richardson v. Marsh, 481 U.S. 200, 210 (1987).
[8] Because Defendant was to be tried jointly with his
codefendants, the district court properly granted a continu-
10348 UNITED STATES v. LEWIS
ance. An already complex case became more complicated
because of the additional defendants and the need to deter-
mine their counsels’ and the government’s readiness for trial.
Thus, this period meets the requirements for excludability
under § 3161(h)(7), but we also must determine whether this
delay was reasonable.
[9] We “gauge the reasonableness of delay on a case by
case basis, given the fact-bound nature of the inquiry.”
Messer, 197 F.3d at 337 (internal quotation marks omitted).
Here, the addition of two codefendants made the delay rea-
sonable and, hence, excludable under § 3161(h)(6).
Defendant complains that the delay deprived him of his
counsel of choice. Had the trial commenced when originally
scheduled, his original lawyer would have represented him.
Instead, Defendant was represented at trial by a different law-
yer because the first lawyer had work obligations abroad. But
Defendant had an opportunity to go to trial with the first law-
yer by severing his case from those of his codefendants. He
deliberately chose not to do so, knowing that trial would com-
mence after the original lawyer was set to leave the country.
More importantly, Defendant fails to identify any actual prej-
udice that occurred as a result of being represented by other
counsel, who mounted a highly competent and vigorous
defense. Finally, Defendant has been represented by
appointed counsel throughout this case, and “the right to
counsel of choice does not extend to defendants who require
counsel to be appointed for them.” United States v. Gonzalez-
Lopez, 548 U.S. 140, 151 (2006); see also United States v.
Ensign, 491 F.3d 1109, 1113 (9th Cir. 2007) (same).
Defendant next argues that he was prejudiced because the
delay gave the government time to secure Anson Wong, the
wildlife dealer, and Jeffrey Miller, a codefendant who eventu-
ally pleaded guilty, as witnesses against him. Defendant’s
arguments do not persuade us.
UNITED STATES v. LEWIS 10349
Wong did not testify. Defendant could not have suffered
any actual prejudice as to him.
[10] Miller did testify against Defendant, but we conclude
that the addition of his testimony, although prejudicial, did
not make the delay unreasonable. In United States v. Hall,
181 F.3d 1057 (9th Cir. 1999), we held that the defendant suf-
fered prejudice under the Speedy Trial Act when the court
granted extensions of time to the government for the “primary
purpose” of allowing the only codefendant—who eventually
testified against the defendant—to “pursue plea negotiations
with the government.” Id. at 1062. In spite of that prejudice,
however, we conclude that the six-week delay at issue here
was reasonable. First, there is no evidence that, here, the con-
tinuance was granted for the primary purpose of allowing
Miller to pursue plea negotiations with the government. More
importantly, this case involved several codefendants, most of
whom did not testify against Lewis. An extension of time
under these circumstances was reasonable because the impor-
tance of allowing Lewis’ codefendants time to prepare for
trial furthered the policy of favoring joint trials, see Marsh,
481 U.S. at 210, and, thus, outweighed any prejudice that may
have resulted from having one of those codefendants eventu-
ally decide to plead guilty and testify against Lewis.
3. September 16, 1999 - December 13, 1999
The district court held that this period of delay was exclud-
able under § 3161(h)(6) and (7). We agree.
At a September 16, 1999 hearing, Defendant reiterated that
he would not file a motion to sever or any other motion. He
said that he was ready to try the case. Counsel for a codefen-
dant, however, said that the codefendant would file pretrial
motions, including a motion to sever. The district court set a
hearing on those motions for a date four months later.
[11] It was reasonable for the court to delay trial in order
to allow the codefendant to file pretrial motions. Commencing
10350 UNITED STATES v. LEWIS
trial four days later, as Defendant wished, would have preju-
diced his codefendants and the government because they
would have had only one month of trial preparation since the
time of the second superseding indictment. Additionally,
because one of the codefendant’s pretrial motions was to be
a motion to sever, it would not have been an efficient use of
judicial resources to begin trial for the joined defendants, only
to have one or more codefendants severed. In short, it was
reasonable for the district court to delay the trial date in order
to give the codefendants and the government sufficient time
to prepare.
4. January 13, 2000 - May 9, 2000
[12] We held in Lewis I that the delay that occurred
between January 13, 2000, and May 9, 2000, was non-
excludable. We came to that conclusion after holding that the
only reason for the delay was a pending government motion
to present testimony by George Morrison, the special agent
who spearheaded the government’s investigation, non-
sequentially. Lewis I, 349 F.3d at 1119-20. We did not revisit
that holding in Lewis II; rather, we remanded the case to the
district court in order to review all periods of delay, not just
the 117 days, when deciding whether to dismiss the case with
or without prejudice.
The question now arises whether we are bound by our hold-
ing in Lewis I. The district court after the second remand sug-
gested, and the government argues, that our analysis
concerning excludability was wrong.
“Law of the case is a jurisprudential doctrine under which
an appellate court does not reconsider matters resolved on a
prior appeal.” Jeffries v. Wood, 114 F.3d 1484, 1488-89 (9th
Cir. 1997) (en banc). “The law of the case doctrine states that
the decision of an appellate court on a legal issue must be fol-
lowed in all subsequent proceedings in the same case.” Cald-
well v. Unified Capital Corp. (In re Rainbow Magazine, Inc.),
UNITED STATES v. LEWIS 10351
77 F.3d 278, 281 (9th Cir. 1996) (internal quotation marks
omitted). “[U]nder the ‘law of the case’ doctrine one panel of
an appellate court will not as a general rule reconsider ques-
tions which another panel has decided on a prior appeal in the
same case.” Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.
1979).
[13] Law of the case is a discretionary doctrine: It “merely
expresses the practice of courts generally to refuse to reopen
what has been decided, not a limit to their power.” Messinger
v. Anderson, 225 U.S. 436, 444 (1912). That discretion, how-
ever, is limited. Thomas v. Bible, 983 F.2d 152, 155 (9th Cir.
1993). The prior decision should be followed unless: “(1) the
decision is clearly erroneous and its enforcement would work
a manifest injustice, (2) intervening controlling authority
makes reconsideration appropriate, or (3) substantially differ-
ent evidence was adduced at a subsequent trial.” In re Rain-
bow Magazine, 77 F.3d at 281 (internal quotation marks
omitted).
[14] None of those factors exists here. Our decision in
Lewis I is not clearly erroneous, intervening controlling
authority did not arise, and no additional (much less “substan-
tially different”) evidence came to light. Therefore, we
decline to revisit Lewis I. This period of delay is non-
excludable.
5. Summary
The delay from May 6, 1999, to July 29, 1999, is exclud-
able under § 3161(h)(7) because of the case’s complexity, and
that delay is reasonable under § 3161(h)(6).
The delays from July 29, 1999, to December 13, 1999, are
excludable under § 3161(h)(6) and (7). The delays were rea-
sonably required to facilitate the efficient use of judicial
resources by enabling a joint trial and were justified by “the
ends of justice” because of the case’s complexity.
10352 UNITED STATES v. LEWIS
The delays from January 13, 2000, to July 9, 2000, are non-
excludable, as Lewis I held.
B. Dismissal Without Prejudice
[15] While a Speedy Trial Act violation requires the dis-
missal of the indictment upon the defendant’s motion, 18
U.S.C. § 3162(a)(2), whether to dismiss with or without prej-
udice is left to the “guided discretion of the district court,”
Taylor, 487 U.S. at 334-35. The statute does not prefer one
remedy to the other. Id.
[16] The Speedy Trial Act sets forth three factors, “among
others,” that must be considered in deciding whether to dis-
miss with or without prejudice: “the seriousness of the
offense; the facts and circumstances of the case which led to
the dismissal; and the impact of reprosecution on the adminis-
tration of this chapter and on the administration of justice.” 18
U.S.C. § 3162(a)(2). The Supreme Court has held that the
phrase “among others” incorporates prejudice to the defen-
dant. Taylor, 487 U.S. at 333-34.
Our role is not to substitute our judgment for that of the dis-
trict court, but rather is to ensure that the district court “care-
fully consider[ed]” the statutory factors and “clearly
articulat[ed] their effect” in the case. Id. at 336. “[W]hen the
statutory factors are properly considered, and supporting fac-
tual findings are not clearly in error, the district court’s judg-
ment of how opposing considerations balance should not
lightly be disturbed.” Id. at 337.
Here, the district court reviewed the statutory factors in
considerable detail, independent of the first judge’s earlier
analysis, made factual findings for the second time, and deter-
mined that the overall balance weighed in favor of dismissing
the indictment without prejudice for the second time. Defen-
dant disagrees with the district court’s balancing of the statu-
tory factors, but mere disagreement does not demonstrate an
UNITED STATES v. LEWIS 10353
abuse of discretion. See Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 422 F.3d 782, 793-95 (9th Cir. 2005) (per
curiam).
[17] First, in considering the seriousness of Defendant’s
offenses, the district court found that his offenses were “seri-
ous” or “very serious” because, among other things, the jury
convicted Defendant of several felonies that carried substan-
tial penalties. Among those offenses were conspiracy, which
involved the cooperation of several parties, and smuggling
offenses that implicated international treaties and involved a
large number of protected animals. We agree with the district
court that Defendant’s offenses were serious: In the first trial,
the jury convicted Defendant of 17 felonies, each carrying a
maximum penalty of five years’ imprisonment and a
$250,000 fine, and one felony (money laundering) carrying a
maximum penalty of 20 years’ imprisonment and a $500,000
fine. Those convictions rested on Defendant’s intentional
importation, for the purpose of resale, of six illegal shipments
of protected reptiles, containing 125 animals, many of which
died in transit. In the second trial, the jury found Defendant
guilty of a subset of six of the original felony counts, which
carried maximum penalties of five years each. Defendant’s
offenses are “serious” within the context of the Speedy Trial
Act and the standards established by courts that have
addressed this issue. See United States v. Kramer, 827 F.2d
1174, 1176-77 (8th Cir. 1987) (citation omitted) (holding that
crimes of bank fraud, punishable by up to five years’ impris-
onment each, were a “serious offense” for Speedy Trial Act
purposes); United States v. Salgado-Hernandez, 790 F.2d
1265, 1268 (5th Cir. 1986) (citation omitted) (holding that
alien smuggling offenses, punishable by up to five years’
imprisonment each, were a “serious offense” for Speedy Trial
Act purposes); United States v. King, 664 F.2d 1171, 1173
(10th Cir. 1981) (holding that a potential prison sentence of
up to five years was “clearly serious”).
[18] As to the second and third factors, the district court
found that the government and the court itself had acted in
10354 UNITED STATES v. LEWIS
good faith. Their desire to facilitate the efficient use of judi-
cial resources through a joint trial was genuine and reason-
able. The case was complex and appropriately demanded
considerable preparation by all parties. The district court’s
findings are not clearly erroneous.
Finally, with respect to prejudice to Defendant, the district
court concluded that Defendant’s loss of his original trial
counsel was “significant,” but the court found that he did not
suffer any actual prejudice from his first lawyer’s departure.
The record supports that finding. Present counsel has repre-
sented Defendant since mid-2000, through two lengthy trials,
a substantial motions practice, and now three appeals. At no
time has Defendant complained about his present counsel’s
effectiveness or quality. Where Defendant himself identifies
no actual prejudice caused by the delay, the district court
properly found that this factor “tips only slightly in favor of
[Defendant].”
[19] The district court balanced the applicable statutory
considerations, made the requisite factual findings, and deter-
mined that the overall weight of the statutory considerations
favored dismissal without prejudice. “[T]he district court’s
judgment of how opposing considerations balance should not
lightly be disturbed.” Taylor, 487 U.S. at 337. We discern no
reason to overturn the district court’s dismissal of the indict-
ment without prejudice.
AFFIRMED.