FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10136
Plaintiff-Appellee, D.C. No.
v. 2:07-CR-00170-
CHEN CHIANG LIU, JCM-LRL-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
August 31, 2010—San Francisco, California
Filed January 21, 2011
Before: Betty B. Fletcher, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tallman
1297
13000 UNITED STATES v. LIU
COUNSEL
Dan C. Maloney (argued), Assistant Federal Public Defender,
Michael K. Powell, Assistant Federal Public Defender,
UNITED STATES v. LIU 13001
Franny Forsman, Federal Public Defender, Office of the Fed-
eral Public Defender, Reno, Nevada, for defendant-appellant
Chen Chiang Liu.
Elizabeth A. Olson (argued), Assistant United States Attor-
ney, Robert L. Ellman, Appellate Chief, Daniel G. Bogden,
United States Attorney, United States Attorney’s Office,
Reno, Nevada, for plaintiff-appellee United States of Amer-
ica.
OPINION
TALLMAN, Circuit Judge.
Defendant-Appellant Chen Chiang Liu appeals his Nevada
district court convictions for conspiracy to import, transfer,
and sell high quality counterfeit United States currency. Liu
contends that his trial was not timely held, in violation of the
Speedy Trial Act (“STA”), 18 U.S.C. § 3161, et seq. He fur-
ther argues that the district court plainly erred when it failed
to give a multiple conspiracy jury instruction and a specific
unanimity jury instruction. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
I
The evidence at trial showed that Liu was involved in a
sophisticated international enterprise to import high quality
counterfeit currency into the United States in $100 denomina-
tions called “supernotes.” The quality of the supernotes was
so good that the counterfeit bills could pass undetected
through slot machines and cash-counting machines in Las
Vegas casinos. The conspirators obtained the supernotes
through contacts in either Russia or North Korea, and usually
the purchaser would travel to Hong Kong to receive the coun-
terfeit currency. The conspirators charged either thirty-five or
forty cents on the dollar for the supernotes.
13002 UNITED STATES v. LIU
Federal agents first encountered this enterprise through an
undercover agent’s contacts with a member of the conspiracy.
The undercover agent met with both Liu and his coconspira-
tors numerous times from April 2004 through August 2005.
During this time, the undercover agent received two separate
shipments of supernotes. After the undercover agent received
the first shipment in May 2005, he gave Liu $20,000 in pur-
ported supernotes as recompense for Liu’s participation in the
transaction.1 Liu was arrested for this activity on August 20,
2005, shortly before the undercover agent received the second
shipment of supernotes.
On August 17, 2005, a grand jury in the Central District of
California returned an indictment (the “California indict-
ment”) charging Liu and three co-defendants with one count
of conspiring to (1) “make, deal, and possess counterfeit
United States currency outside of the United States,” in viola-
tion of 18 U.S.C. § 470, and (2) “buy, sell, exchange, transfer,
receive, and deliver counterfeited obligations and securities of
the United States,” in violation of 18 U.S.C. § 473. Liu
appeared in federal district court in Los Angeles to respond to
the California indictment on August 22, 2005, and was
arraigned on August 30, 2005. The district court released Liu
pending trial; the trial date was continued numerous times at
the joint request of Liu and the prosecution.2 On April 3,
2008, the prosecution moved to dismiss the California indict-
ment because a superseding indictment was going to be filed
1
The undercover agent actually provided Liu with $20,000 worth of
genuine currency because the agent could not distribute counterfeit bills.
Liu was unable to determine that he had been paid with genuine, rather
than counterfeit, currency, presumably because of the quality of the super-
notes.
2
The Speedy Trial Act provides that trial shall commence no later than
seventy days from indictment or first appearance in court, whichever is
later, unless time is excluded from the calculation for various reasons such
as filing and deciding pretrial motions. 18 U.S.C. § 3161(c)(1) (timeline);
id. § 3161(h) (list of excludable periods of delay).
UNITED STATES v. LIU 13003
against Liu in the District of Nevada. The California indict-
ment was dismissed on April 7, 2008.
While Liu was on pretrial release in California, he contin-
ued his participation in the conspiracy. Although his pretrial
release in California imposed travel restrictions, Liu repeat-
edly requested permission to travel to Las Vegas. During at
least one of these permitted trips, Liu met with a new pur-
chaser, Patrick Schwenke, to rearrange a prior deal regarding
counterfeit currency. This meeting was necessitated by the
arrests of the coconspirators with whom Schwenke had previ-
ously dealt. It is clear that Liu was also traveling to Las Vegas
for the purpose of passing counterfeit currency because his
net loss at a single casino was over $1.9 million for the period
from February 2006 to July 2007, notwithstanding the fact
that Liu submitted a financial affidavit upon arrest showing
no appreciable wealth. On July 31, 2007, Liu was arrested
again, this time in Las Vegas with his wife, Min Li Liu, after
being caught attempting to pass counterfeit currency through
casino slot machines.
Liu was then indicted in the District of Nevada on August
1, 2007. This indictment charged Liu and his wife with one
count of passing, possessing, and concealing counterfeit
securities in violation of 18 U.S.C. § 472 and one count of
conspiring to pass, possess, and conceal counterfeit securities
in violation of 18 U.S.C. § 371. The Las Vegas grand jury
returned a first superseding indictment, which dropped the
conspiracy charge, on December 12, 2007, and a second
superseding indictment (“SSI”) was filed in that district on
April 2, 2008.
The latest indictment reinstated the conspiracy charge
alleged in the initial indictment filed in Nevada, but broad-
ened its scope and time frame to include violations of not only
18 U.S.C. § 472, but also §§ 470 and 473. In essence, the SSI
combined the allegations of the California indictment with the
allegations of the original indictment filed in Nevada, reflect-
13004 UNITED STATES v. LIU
ing the expanded scope of the federal investigation into the
international counterfeiting ring after the Las Vegas arrests.
The conspiracy described in the SSI ran from April 2004 to
July 30, 2007, and the overt acts included the conduct in
Nevada that occurred before and while Liu was under the
pending California indictment.
Liu filed a motion to dismiss count one of the SSI, the con-
spiracy charge, in Nevada district court, arguing that it was
“merely an extension” of the California indictment and that
the failure to timely prosecute him on the California indict-
ment violated his rights under the STA.3 He asked the district
court to dismiss count one with prejudice based on the factors
listed in 18 U.S.C. § 3162(a)(2).4 The district court denied
Liu’s motion to dismiss after finding that the STA time limits
for the California indictment did not apply to the Nevada SSI
because the SSI “charge[d] a new and distinct offense from
the one charged in the California [indictment].”
The district court in Nevada conducted a jury trial and
entered a judgment of acquittal for Min Li Liu at the close of
the prosecution’s case. Due to the dismissal of Min Li, the
district court altered the jury instruction regarding multiple
3
Min Li Liu joined the motion to dismiss. She is not a party to this
appeal because the Nevada district court granted her Federal Rule of
Criminal Procedure 29 motion for a judgment of acquittal at trial. The
codefendants originally charged with Liu in California entered pleas in the
California district court, and one died during the pendency of the litiga-
tion, leaving Liu as the sole remaining defendant when the Nevada jury
returned its verdict on the second superseding indictment.
4
At the time Liu filed the motion to dismiss, he informed the Nevada
district court that, according to the stipulation of the parties, twenty-one
days remained on the STA clock for the California indictment at the time
the California district court began granting continuances and excluding
time under 18 U.S.C. § 3161(h)(7)(A). This calculation is incorrect
because it is based on the date Liu was arraigned in California, August 30,
2005, not the date he first appeared in front of the California district court,
August 22, 2005. See id. § 3161(c)(1). Nonetheless, the seven-day discrep-
ancy does not impact our analysis.
UNITED STATES v. LIU 13005
counts and multiple defendants and added jury instructions
about translation and mere presence. Thereafter, counsel for
both the prosecution and Liu stipulated to the jury instruc-
tions, and the district court read the instructions to the jury.
The jury convicted Liu on both counts contained in the SSI,
and the district court entered judgment against Liu on March
12, 2009. Liu was sentenced to 151-months imprisonment. He
now timely appeals his convictions.
II
Liu’s first argument on appeal is that the Nevada district
court erred when it denied his motion to dismiss the conspir-
acy count of the SSI. Liu argues that the conspiracy charged
in the SSI was the same conspiracy charged in the California
indictment. Therefore, he contends that the timeline imposed
by the STA was violated because he was indicted in Califor-
nia in August 2005, but was not brought to trial until Septem-
ber 2008. We review a district court’s application of the STA
de novo, United States v. Clymer, 25 F.3d 824, 827 n.1 (9th
Cir. 1994), and its factual findings for clear error, United
States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993).
A
[1] If a defendant enters a plea of not guilty, the STA man-
dates that trial must commence within seventy days of either
the date on which the indictment was filed or the date on
which the defendant first appeared before the court, which-
ever is later. 18 U.S.C. § 3161(c)(1). To determine whether
the STA was violated, we must first determine when the clock
began running. United States v. King, 483 F.3d 969, 972 (9th
Cir. 2007). The district court applied the five factors
announced in Arnold v. United States, 336 F.2d 347, 350 (9th
Cir. 1964), to determine whether the conspiracy charged in
the California indictment was the same as the conspiracy
charged in the SSI.5 The district court conducted this analysis
5
The five factors are: “(1) the differences in the periods of time covered
by the alleged conspiracies; (2) the places where the conspiracies were
13006 UNITED STATES v. LIU
because STA calculations begin from the date of the original
indictment if a subsequent indictment “contains charges
which, under double-jeopardy principles, are required to be
joined with the original charges.” King, 483 F.3d at 972.
[2] An analysis of the Arnold factors is unnecessary, how-
ever, for purposes of this appeal. We assume, without decid-
ing, that the two indictments charged Liu with the same
overarching conspiracy although the SSI supplemented new
facts that would fall under each Arnold factor. If so, Liu’s
STA clock began running on the day he first appeared in court
under the California indictment—August 22, 2005.
B
[3] Assuming that Liu was charged with the same conspir-
acy in the two indictments, we must now determine whether
the time that lapsed between Liu’s first appearance in court in
California and his trial in Nevada violated the STA. In King,
we held that in certain circumstances the STA clock resets
upon the filing of a superseding indictment that adds a new
defendant. 483 F.3d at 973. We relied on the Supreme Court’s
statement that “ ‘[a]ll defendants who are joined for trial gen-
erally fall within the speedy trial computation of the latest
codefendant.’ ” Id. (quoting Henderson v. United States, 476
U.S. 321, 323 n.2 (1986)). We also recognized that not allow-
ing the STA clock to restart upon the addition of a codefen-
dant might result in the STA being used as a vehicle for
requiring the government to prosecute codefendants piece-
meal. Id. (quoting United States v. Barnes, 251 F.3d 251, 258
(1st Cir. 2001)).
alleged to occur; (3) the persons charged as coconspirators; (4) the overt
acts alleged to have been committed; and (5) the statutes alleged to have
been violated.” United States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir.
1997).
UNITED STATES v. LIU 13007
[4] The addition of a codefendant, however, does not auto-
matically restart the STA clock. Our decision to do so in King
relied on the “reasonableness of the delay” in adding the
codefendant and “the absence of bad faith on the part of the
government.” Id. at 974. These requirements implement the
Supreme Court’s directive that “defendants who are joined for
trial generally fall within the speedy trial computation of the
latest codefendant.” Henderson, 476 U.S. at 323 n.2 (empha-
sis added). If the delay is reasonable and there is no bad faith,
the application of defendant-specific STA timelines would
frustrate the efficiency rationale that underlies the rules of
joinder. King, 483 F.3d at 974.
[5] If we apply our holding in King, Liu’s STA clock
under the California indictment reset upon the addition of his
wife, Min Li, to the SSI. There is no evidence in the record
before us to suggest that the delay between the filing of the
California indictment and the addition of Min Li through the
filing of the SSI was unreasonable. It is evident from the
numerous joint requests to continue trial filed with the district
court in California that the investigation of this conspiracy, as
well as the preparation for trial, was complex. This was a
sophisticated worldwide conspiracy to import high quality
counterfeit United States currency. Also, Liu continued to
conduct the activities of the conspiracy while he was on pre-
trial release in California. The case kept evolving after the fil-
ing of the California indictment because the conspiracy
continued its illegal operations. Consequently, any delay in
the prosecution of Liu resulting from the ongoing nature of
the conspiracy was reasonable.
Additionally, there is no indication in the record that the
government knew of Min Li’s alleged participation in the
conspiracy until July 31, 2007, the day she was arrested in
Las Vegas for attempting to pass counterfeit currency through
slot machines. The nine-month delay between the day Min Li
was arrested and the filing of the SSI in Nevada adding her
to the conspiracy first outlined in the California indictment is
13008 UNITED STATES v. LIU
reasonable given the multijurisdictional nature, the continua-
tion of new illegal acts in furtherance, and the difficulty of
investigating this farflung conspiracy.
[6] Because the delay in the filing of the SSI that named
another defendant was reasonable, and because there is no
evidence of bad faith on the part of the government, Liu’s
STA clock restarted on April 2, 2008. The district court
excluded all of the time between April 2 and September 8,
2008, when the case proceeded to trial, under 18 U.S.C.
§ 3161(h)(7)(A).6 Thus, Liu’s rights under the STA were not
violated. The district court did not err when it denied Liu’s
motion to dismiss.
III
Liu alleges that the district court committed reversible error
by failing to give a multiple conspiracy jury instruction and
a specific unanimity jury instruction. Liu acknowledges that
we must apply plain error review to his challenges because he
offered no objection to the proposed jury instructions at the
time they were given. See Jones v. United States, 527 U.S.
373, 389 (1999). Under our plain error standard of review,
reversal is warranted when (1) there is error, (2) that is plain,
and (3) that affects substantial rights. Id. We should correct
plain error only if it “seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” Id. (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)).
6
Section 3161(h)(7)(A) excludes from the STA calculation “[a]ny
period of delay resulting from a continuance granted by any judge . . . if
the judge granted such continuance on the basis of his 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.” Because of the complex
nature of the case, Liu does not challenge the district court’s exclusion of
this time from STA calculation.
UNITED STATES v. LIU 13009
A
[7] Liu asserts that he was entitled to a multiple conspiracy
instruction because a reasonable juror could have found three
separate conspiracies: (1) a conspiracy to sell counterfeit cur-
rency to the undercover agent; (2) a conspiracy to sell coun-
terfeit currency to the cooperating witness; and (3) a
conspiracy with Min Li to pass counterfeit currency into cir-
culation. A multiple conspiracy jury instruction is appropriate
if an indictment “charges several defendants with one overall
conspiracy, but the proof at trial indicates that a jury could
reasonably conclude that some of the defendants were only
involved in separate conspiracies unrelated to the overall con-
spiracy charged in the indictment.” United States v. Anguiano,
873 F.2d 1314, 1317 (9th Cir. 1989) (citing Kotteakos v.
United States, 328 U.S. 750 (1946)). The purposes of this
instruction are to minimize any “prejudicial variance”
between the indictment and the proof at trial and to protect a
defendant from a “spillover of guilt” from one defendant to
another. Id. at 1317-18. A multiple conspiracy instruction is
not required when a defendant “stands trial alone” because
“there is no problem of spillover.” Id. at 1318. The instruction
is not meant for “trials of lone defendants who are worried
that the jury may not agree upon the same set of facts.” Id.
[8] The district court did not err when it failed to give a
multiple conspiracy instruction because there was no potential
for spillover guilt in this case. At the time the district court
gave the jury its instructions, Liu was the sole defendant. The
district court had previously granted Min Li’s motion for a
directed verdict of acquittal because there was no evidence
“showing she had knowledge [of] or involvement” in the con-
spiracy. Consequently, even though Min Li was a codefendant
during the government’s presentation of its case, the district
court explicitly found that there was no evidence supporting
the allegation that Min Li was involved in the conspiracy. The
lack of evidence as to Min Li’s involvement minimizes any
potential for spillover guilt to Liu. It likewise removes the
13010 UNITED STATES v. LIU
possibility that Liu was involved in only a minor conspiracy
with Min Li that was unrelated to the overarching conspiracy.
See generally id. at 1317-18.
[9] Liu was not entitled to a multiple conspiracy instruc-
tion. Thus, the district court did not plainly err in failing to
give one.
B
Liu also claims that he was entitled to a specific unanimity
jury instruction as to which overt act he committed in further-
ance of the conspiracy. Ordinarily, a general unanimity
instruction is sufficient to protect a defendant’s right to a
unanimous verdict. United States v. Echeverry, 719 F.2d 974,
974 (9th Cir. 1983). A general unanimity instruction is not
sufficient if it appears “that there is a genuine possibility of
jury confusion or that a conviction may occur as the result of
different jurors concluding that the defendant committed dif-
ferent acts.” Id. at 975.
Here, the district court gave a general unanimity jury
instruction; it also directed the jury that it must agree on the
“particular crime which the conspirators agreed to commit.”
The district court did not, however, specifically instruct the
jury that it must unanimously agree as to which overt act was
committed in furtherance of the conspiracy.7 Nonetheless,
7
It is not clear that a district court must instruct a jury that it must make
a unanimous finding of which overt act was committed in furtherance of
the conspiracy. The comments to Ninth Circuit Model Jury Instruction
8.20 state that the instruction should include language requiring unanimity
as to the overt act when the applicable statute requires proof of an overt
act. The Supreme Court, however, has suggested that a jury need not spe-
cifically agree on which overt act was committed. See Schad v. Arizona,
501 U.S. 624, 631 (1991) (plurality opinion) (“We have never suggested
that in returning general verdicts in such cases the jurors should be
required to agree upon a single means of commission, any more than the
indictments were required to specify one alone.”); see also United States
v. Griggs, 569 F.3d 341, 343-44 (7th Cir. 2009) (relying on Schad to hold
that a specific unanimity instruction is not required when a defendant is
charged with a violation of 18 U.S.C. § 371). We do not need to defini-
tively resolve that issue in this case, and we decline to do so.
UNITED STATES v. LIU 13011
Liu’s argument fails because he cannot establish that the
omission affected his substantial rights. At the time the jury
convicted Liu for his participation in the conspiracy, it also
found him guilty of fraudulently passing counterfeit currency,
as charged in count two of the SSI. The actions underlying
this substantive statutory violation were also alleged as overt
acts in furtherance of the conspiracy. Therefore, even if the
jury had been explicitly instructed that it must unanimously
agree on which overt act occurred, in light of the verdict,
there is no reason to find that they would have been unable
to do so. Any error in failing to give the specific unanimity
instruction as it related to the overt act requirement does not
warrant reversal of Liu’s conviction.
IV
The district court did not err when it denied Liu’s motion
to dismiss the SSI for violation of the STA. It did not plainly
err by failing to give a multiple conspiracy or a specific una-
nimity jury instruction.
AFFIRMED.