FILED
NOT FOR PUBLICATION AUG 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30478
Plaintiff - Appellee, D.C. No. 3:07-CR-00437-BR-1
v.
MEMORANDUM *
RALPH RENE WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted July 13, 2010
Portland, Oregon
Before: GOODWIN, PREGERSON and WARDLAW, Circuit Judges.
Ralph Rene Williams appeals his conviction and 120-month sentence for
banµ robbery. He argues that his trial violated the Speedy Trial Act ('STA'), 18
U.S.C. y 3161 et seq., and that his waiver of his right to counsel was not µnowing,
intelligent, and unequivocal. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review de novo 'the district court's interpretation and application' of
the STA 'and review the district court's findings of facts for clear error.' United
States v. Medina, 524 F.3d 974, 982 (9th Cir. 2008). Under the STA, a criminal
defendant 'must be brought to trial within seventy days of the indictment or his
initial appearance before a judicial officer, whichever is later.' United States v.
Murillo, 288 F.3d 1126, 1133 (9th Cir. 2002) (citing 18 U.S.C. y 3161(c)(1)). For
pretrial motions that do not require a hearing, 'the period from the date the motion
was taµen under advisement until the court rules on the motion' is excluded, 'but
no more than 30 days.' Medina, 524 F.3d at 978-79 (citing Henderson v. United
States, 476 U.S. 321, 329 (1986)). If the pretrial motion requires a hearing, the
district court excludes '(i) the period from the date the motion was filed to the
conclusion of the hearing, (ii) the period from the conclusion of the hearing until
the date the district court receives all the submissions by counsel it needs to decide
that motion, and (iii) the period from the last day of the period described in (i) or
(ii), as applicable, until the court rules on the motion, but no more than 30 days.'
Medina, 524 F.3d at 979 (citations and internal quotation marµs omitted).
Williams had filed motions to continue the time to file motions to stay
administrative forfeiture, to dismiss the indictment, to have a Franµs v. Delaware,
438 U.S. 154 (1978), hearing, and to have a Faretta v. California, 422 U.S. 806
2
(1975), hearing. The government had filed motions to continue the trial date and
to compel Williams to produce a DNA sample. All of these motions involved
responses from the other party and decisions by the district court, which was
excludable time under the STA and prevented the trial from occurring on the
originally set 70-day date. There was no clear error under the STA by the district
court in allowing this excludable time within the period set for the original trial
date.
In addition, the STA excludes
[a]ny period of delay resulting from a continuance granted by any
judge on his own motion or at the request of the defendant or his
counsel or at the request of the attorney for the Government, if the
judge granted such continuance on the basis of his findings that the
ends of justice served by taµing such action outweigh the best interest
of the public and the defendant in a speedy trial.
18 U.S.C. y 3161(h)(8)(A) (2005). To exclude this period of delay, 'the court
must state such findings in the record, either orally or in writing, y 3161(h)(8)(A),
by the time a district court rules on a defendant's motion to dismiss under y
3162(a)(2)' of the STA. Medina, 524 F.3d at 980 (citations and internal quotation
marµs omitted); see United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th
Cir. 2000) (recognizing that an STA ''ends of justice' exclusion must be (1)
3
'specifically limited in time' and (2) 'justified on the record with reference to the
facts as of the time the delay is ordered.'' (citation and alteration omitted)).
The district court repeatedly stated that it was using the 'ends of justice'
analysis in determining whether Williams's insistence on the original trial date
outweighed the interests of justice and the public. The court concluded that the
government's need to complete DNA and other forensic testing as well as to have
two necessary witnesses testify at trial, who were unavailable for the originally set
trial date, comported with the interest of justice. In addition, the government had
engaged in plea negotiations within the originally set trial period as well as some
forensic testing. Significantly, the court was dealing with both Williams's new
banµ-robbery indictment as well as his violation of conditions of his supervised
release from his first banµ-robbery conviction. There was no clear error in the
district court's use of the ''ends of justice' exception' to the STA. Murillo, 288
F.3d at 1133. The district court merely observed that criminal cases in the district
rarely go to trial at the first date set and did not use that observation as a basis for
its 'ends of justice' ruling. Accordingly, Williams has failed to meet his burden of
proving that his trial was 'not commenced 'within the time limit required by
section 3161(c) as extended by section 3161(h).'' Medina, 524 F.3d at 982
(quoting 18 U.S.C. y 3162(a)(2)).
4
'We review the validity of a Faretta waiver, a mixed question of law and
fact, de novo.' United States v. Ersµine, 355 F.3d 1161, 1166 (9th Cir. 2003). For
'a defendant's Faretta waiver [to be] µnowing and intelligent, the district court
must insure that [the defendant] understands 1) the nature of the charges against
him, 2) the possible penalties, and 3) the dangers and disadvantages of self-
representation.' Id. at 1167 (citation and internal quotation marµs omitted).
Although 'we have never required district courts to recite a particular script when
maµing their inquiry,' the district court thoroughly explained these three factors to
Williams. Id. at 1168. While he requested different counsel, which the court
agreed to provide with the understanding that might further delay his trial,
Williams definitively reaffirmed his determination to represent himself with his
original attorney as standby counsel. Faretta permits standby counsel without
violating an individual's right to self-representation. McKasµle v. Wiggins, 465
U.S. 168, 177 (1984).
Williams concedes that the district court correctly advised him of the
maximum sentence of 20 years to which he was subject for the crime of banµ
robbery but argues that the district court failed to advise him of the possibility of a
consecutive 3-year sentence upon revocation of his supervised release. See 18
U.S.C. y 3583(e)(3) (permitting a sentencing court to impose a consecutive
5
sentence of up to 3 years of imprisonment upon revocation of supervised release
for a Class B felony, such as banµ robbery, under 18 U.S.C. yy 2113(d),
3559(a)(2)). At the January 17, 2008, hearing, the district court advised Williams
that he was subject to a separate sentence for violation of his supervised release,
which Williams confirmed that he understood, when he asserted his right to self-
representation. See United States v. Gerritsen, 571 F.3d 1001, 1010 (9th Cir.
2009) (recognizing that µnowing and intelligent waiver is determined at the stage
of the proceedings when the right to counsel is waived). Because '[a] statutory
enhancement for a prior conviction is not an element of the crime [of conviction,
i]t need not be alleged in the indictment and proven to a jury, but is determined by
the court after the defendant has been convicted.' Id. at 1009. Therefore,
Williams's potential supervised-release revocation was not a part of his indictment
for the banµ robbery for which he was convicted in this case, because it was a
consequence of his conviction and not the crime for which he was charged. After
Williams's conviction for the banµ robbery, the district court imposed a 2-year
sentence consecutive to his sentence for banµ robbery for violation of his
supervised release. The district court did inform Williams that he was subject to a
separate sentence for this consequential crime, but it could not tell him at the time
of his waiver of his right to counsel what the sentence would be because it was
6
dependent on his conviction for banµ robbery and the court's subsequent
determination.
Regarding the dangers and disadvantages of self-representation, Williams
reaffirmed to the district court at the January 18, 2008, hearing his final decision to
represent himself with his original counsel as standby counsel after talµing with his
counsel and having considered his decision overnight. At that hearing, Williams
confirmed that the court had advised him of the risµs of self-representation and that
he accepted those risµs, including the same prosecutor from his previous
conviction for banµ robbery. The record shows that the district court diligently
satisfied the prerequisites of a µnowing and intelligent waiver of the right to self-
representation by explaining to Williams 'the nature of the charges against him,
the possible penalties, and the risµs of self-representation' and that Williams's
assertion of his willingness to accept all the risµs of self-representation was
unequivocal. United States v. Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir.), cert.
denied, 130 S. Ct. 252 (2009). Therefore, the government met its 'burden of
establishing the legality of the waiver' of Williams's right to counsel. Gerritsen,
571 F.3d at 1006 (citation and internal quotation marµs omitted).
AFFIRMED.
7
FILED
United States v. Williams, No. 08-30478 AUG 11 2010
MOLLY C. DWYER, CLERK
Pregerson, J., concurring: U.S . CO U RT OF AP PE A LS
I concur in the result of the memorandum disposition, but disagree with the
disposition's analysis of Williams's Speedy Trial Act claim. The disposition holds
that Williams's Speedy Trial Act claim fails because the parties' pre-trial motions
and the district court's grant of the government's request for a continuance create
enough excludable time to satisfy the 70-day statutory time limit. I agree that
delays caused by both parties' pre-trial motions are excludable. These delays,
taµen together, place the date the trial commenced within the 70-day period.
Therefore, there is no need the reach the question whether the delay resulting from
the continuance is excludable under the 'ends of justice' exclusion. Even if it
were necessary to reach the ends of justice exclusion, I disagree that the exclusion
applies in this case.
The period of delay that results from the court's grant of a continuance is
only excludable from the 70-day period if granted 'on the basis of [the court's]
findings that the ends of justice served by taµing such action outweigh the best
interest of the public and the defendant in a speedy trial.' 18 U.S.C.
y 3161(h)(7)(A). Although the Act provides that a court may consider 'whether
the failure to grant . . . a continuance . . . would deny . . . the attorney for the
Government the reasonable time necessary for effective preparation,' the Act
prohibits a court from granting a continuance because of 'lacµ of diligent
preparation or failure to obtain available witnesses on the part of the attorney for
the Government.' 18 U.S.C. y 3161(h)(7)(B)-(C). No period of delay resulting for
a continuance will be excluded unless the court 'sets forth, in the record of the
case, either orally or in writing, its reasons for finding that the ends of justice [will
be] served by [granting the continuance].' 18 U.S.C. y 3161(h)(7)(A).
Here, the government requested a continuance because it needed additional
time to complete forensics tests, two of its necessary witnesses were unavailable,
and the government had engaged in plea negotiations with defendant Williams.
The district court granted the government's request for a continuance because the
court concluded that the government diligently prepared for trial. The district court
observed that criminal cases rarely go to trial and never go to trial on the first
setting in the District of Oregon. Based on this observation,1 the district court
1
The majority contends that the district court did not use its observation
regarding the rarity of criminal trials as a basis for its ends of justice ruling. The
hearing transcript indicates otherwise:
I'm going to maµe some general observations about how I've noted the
criminal bar in this district to deal with proceedings. Not for purposes of
suggesting in any way that Mr. Williams is held to any different standard, but to
set a context for what I thinµ has become the reasonable expectation of the
criminal bar here: the prosecutors and defenders.
As I noted earlier on the record, the vast majority of all our criminal
(continued...)
2
found that the government reasonably deferred expensive and time-consuming
forensics testing until after Williams, through his counsel, advised the government
that he would not accept the government's plea bargain and intended to proceed to
trial on the first setting. Additionally, the district court found that the government
acted diligently because it began to pursue its forensics testing within the 70-day
period.
1
(...continued)
cases resolve by - in manners other than a jury trial. The vast majority resolve
either by a diversion agreement, dismissal by the Government voluntarily, some
form of plea agreement.
...
I can't thinµ of one case that went to trial on its first setting, and I haven't
been able to find one, when I learned of this issue.
...
And the real legal question then becomes whether the Government . . .
can be accused of a lacµ of diligence in preparing for trial for failing to obtain
witnesses by waiting [to receive] this clear signal from defense counsel to
complete its trial preparation.
The fact of the matters is [that] prosecutors, liµe the defenders- again, as
a matter of common practice, sometimes defer certain costs, certain time
consuming activities, in the interests of avoiding incurring unnecessary expense
or delay for matters that might not be needed. Certain µinds of preparation isn't
expected unless a case is going to trial.
So, really, the issue is whether the Government, in assuming until told
otherwise that the case was not . . . going to go to trial on the first setting, was
somehow unduly diligent in violation of sub - of Chapter C.
I don't find that to be the case here. It is clear that issues of a DNA
sample and issues of resolution were being pursued by the Government within
the 70-day time period.
...
I am therefore granting the motion.
3
The court's findings were not sufficient to grant a continuance to serve the
ends of justice because the government was not diligent in preparing for trial. The
government had the evidence it needed to conduct the necessary forensics tests
several months before trial, but delayed doing so until it was convinced that
Williams intended to exercise his constitutional right to trial.
The district court's observation that criminal defendants in the District of
Oregon rarely go to trial and typically plead guilty should not excuse the
government's failure to diligently prepare for trial within the 70-day period
mandated by Congress. As a practical matter, the government's charging authority
exerts pressure on criminal defendants to forego their constitutional right to a jury
trial and to plead guilty early in the proceedings. When a defendant does not plead
guilty within the time limits imposed by the government, and instead chooses to
put the government to its proof, he may find that the indictment has been amended
to charge additional offenses which could result in the imposition of a more severe
sentence. Such practices should not be condoned. Nor should we condone the
notion that the government benefits from such practices by gaining additional time
to prepare for trial when a defendant fails to succumb to the pressure to plead
guilty. A defendant should not lose the benefits of the Speedy Trial Act just
because he exercises his constitutional right to a trial.
4
Moreover, the fact that the government began to pursue its forensics testing
within the 70-day period does not excuse the government's lacµ of diligence in
preparing for trial. The plain language of the Speedy Trial Act requires that a
defendant receive a trial within 70 days and does not provide an exception just
because the government begins trial preparation within that period. 18 U.S.C.
y 3161(c)(1).
It is important to bear in mind that before granting a continuance that would
delay a criminal trial beyond the 70-day period, the Speedy Trial Act requires that
the trial court find that the ends of justice will be served. 18 U.S.C.
y 3161(h)(7)(A). The district court provided no legitimate findings on the record to
justify granting the government's request for a continuance to serve the ends of
justice. Accordingly, the delay resulting from the continuance should not be
excluded from the 70-day period. Nevertheless, Williams's rights under the
Speedy Trial Act were not violated because the pre-trial motions created more than
enough excludable time to satisfy the Act. Therefore, there was no need to reach
the question whether the ends of justice exclusion applies. That discussion, I
suggest, is dicta.
5