IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 97-11147
USDC NO. 4:91-CR-22-12-A
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES TRAYNOR SPAULDING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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August 20, 1999
Before JOLLY and SMITH, Circuit Judges, and VANCE,* District Judge.
PER CURIAM:**
Appellant James Traynor Spaulding appeals his convictions for
conspiracy to engage in mail fraud, wire fraud, bank fraud, an
unlawful lottery and money laundering in violation of 18 U.S.C.
§ 371, as well as of substantive counts of bank fraud under 18
U.S.C. § 1334, and money laundering under 18 U.S.C. §§
1956(a)(1)(A)(i) and (2). For the reasons stated in this opinion,
we affirm his conviction and sentence.
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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Appellant contends that the trial court erred when it denied
his repeated motions for a continuance because the trial schedule
gave him less than 30 days after the appearance of his new counsel
to prepare for trial. He contends that this violated the Speedy
Trial Act, 18 U.S.C. § 3161(c)(2), which provides that the trial
shall not commence less than 30 days from the date on which the
defendant first appears through counsel. Spaulding also argues
that, apart from § 3161(c)(2), he had inadequate time to prepare
for trial under 18 U.S.C. § 3161(h)(8).
Spaulding did not assert in the trial court that denial of a
continuance would violate the 30-day period provided in 18 U.S.C.
§ 3161(c)(2). Accordingly, we review his § 3161(c)(2) claim for
plain error. See United States v. Kizzee, 150 F.3d 497, 501 (5th
Cir. 1998). The court may correct forfeited errors only when the
appellant shows: (1) there is an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. Id.
Spaulding has not shown a violation of § 3161(c)(2), much less
plain error. Spaulding appeared with his first lawyer for
arraignment on May 23, 1991. The trial court set a trial date of
September 16, 1991. His first lawyer filed a number of motions and
then moved to withdraw on July 12, 1991. The trial court permitted
him to withdraw on August 22, 1991 and appointed his second lawyer
on the same day. This lawyer made his first appearance on August
26, 1991. The trial court thereafter moved the trial date to
September 23, 1991. The essence of Spaulding's argument is that
the 30-day period provided in § 3161(c)(2) runs from the appearance
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of his second lawyer because his first lawyer was incompetent.
Since the period from the appearance of his second lawyer on August
26th to the trial date of September 23rd was less than 30 days,
Spaulding concludes that the Speedy Trial Act was violated.
Section 3161(c)(2) does not require a new 30-day trial
preparation period each time a defendant changes counsel. See
United States v. Jackson, 50 F.3d 1335, 1338 (5th Cir. 1995). The
retention or appointment of new counsel simply does not trigger a
new 30-day period. See id. at 1339. Although Spaulding relies on
United States v. Storm, 36 F.3d 1289 (5th Cir. 1994), that case is
distinguishable from his case. In Storm, defendant's first lawyer
had a conflict, and the court found that his conflict-tainted
representation did not trigger the running of the 30-day period.
See id. at 1293. Here, Spaulding's original counsel was not
encumbered by a conflict, and he took steps to advance the case by
meeting with Spaulding and filing a motion for a bill of
particulars, a motion to file additional motions, and a motion
requesting a hearing to determine the admissibility of co-
conspirator hearsay statements. Under these circumstances, the
court finds that the appearance of Spaulding's first lawyer
triggered the running of the 30-day period, and there was no
violation of § 3161(c)(2).
Spaulding's other argument, that the lack of a continuance
gave him inadequate time to prepare under 18 U.S.C. § 3161(h)(8) is
equally unavailing. Section 3161(h)(8) authorizes the trial court
to grant a continuance if "the ends of justice served by taking
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such action outweigh the best interest of the public and the
defendant in a speedy trial." This court reviews the denial of a
motion for a continuance for abuse of discretion resulting in
serious prejudice. See United States v. Correa-Ventura, 6 F.3d
1070, 1074 (5th Cir. 1993). When a defendant complains of
inadequate preparation time as a result of the denial of a
continuance, the court looks at the amount of preparation time
available, whether the defendant took advantage of the time
available, the likelihood of prejudice from a denial, the
availability of discovery from the prosecution, and the complexity
of the case. See United States v. Scott, 48 F.3d 1389, 1393 (5th
Cir. 1995). Consideration of these factors does not require a
finding that the district court abused its discretion in denying a
continuance in this case.
It is true that this telemarketing fraud case was relatively
complex, but the trial court managed discovery to assure that
defense counsel obtained the materials relevant to Spaulding
reasonably in advance of trial. For example, Spaulding's second
lawyer complained in his continuance motion of having to review and
make copies from 31 boxes of documents that the government produced
at the Postal Inspection Office. In response, the trial judge cut
through the document issue by ordering the government to produce
and copy documents from five boxes that specifically dealt with
Spaulding. These documents were produced on September 3rd, about
three weeks before the September 23rd trial. Defense counsel
represented to the court that he was reviewing the documents with
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his client with whom he was in regular contact either in person or
by phone. The trial court appointed an investigator to assist
Spaulding with trial preparation. The trial court also required
the government to cull through its witness list to identify for
Spaulding the names and phone numbers of witnesses who claimed to
know him or know of him. Defense counsel had time to file a motion
in limine, a motion for severance and misjoinder, a motion to
dismiss, and a motion for additional peremptory challenges. The
trial court complimented defense counsel on his efforts and his
grasp of the case. There was no abuse of discretion in denying a
continuance.
Further, Spaulding has identified no prejudice from the trial
court's denial of the continuance. He contends that his counsel
was hampered in cross-examining government witness, Robert Casazza,
but the information he claims his counsel needed for effective
cross-examination involved his own plea intentions, which he
obviously could have related to his lawyer himself. Accordingly,
we hold that there was no error in the trial court's denial of
Spaulding's motion for continuance.
Furthermore, none of Spaulding's other arguments warrants
reversal of his conviction or sentence. There was sufficient
evidence to support his conspiracy conviction under 18 U.S.C. § 371
because there was evidence that Spaulding provided advice and
documents to form the telemarketing operation and that he received
$10,000 for obtaining Robert Casazza's agreement to act as a
processor for Douglas Cox and Saul Galindo. Further, the district
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court did not abuse its discretion in admitting evidence of
Spaulding's involvement in an earlier and similar telemarketing
scheme. Evidence of his involvement in a prior telemarketing
scheme, even if extrinsic, was admissible because it was relevant
to prove intent, plan or knowledge under Federal Rule of Evidence
404(b), its probative value was not outweighed by undue prejudice
given the proximity in time and similarity of operation of the two
schemes, and the trial court gave an instruction limiting the use
of this evidence for permissible purposes. See United States v.
Route, 104 F.3d 59, 63 (5th Cir. 1997). Similarly, the district
court did not abuse its discretion in denying Spaulding's motion to
sever because he failed to show specific and compelling prejudice
which resulted in an unfair trial. See United States v. Mitchell,
31 F.3d 271, 276 (5th Cir. 1994); United States v. Pena-Rodriguez,
110 F.3d 1120, 1128 (5th Cir. 1997). At most, Spaulding
demonstrated a quantitative disparity in evidence and the
possibility of a spill-over effect, neither of which, without more,
warrants a severance. Mitchell, 31 F.3d at 276.
Finally, Spaulding raises for the first time on appeal claims
that he was subject to selective prosecution and an unwarranted
disparity in sentencing in violation of his due process and equal
protection rights. The court reviews these claims for plain error.
Spaulding's claims are premised on the fact that the government
entered into a plea agreement with a co-defendant under which that
defendant was allowed to plead to a state charge, and his company
pled to a felony. These claims are totally devoid of merit. A
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prosecutor enjoys discretion to enter into plea bargains with some
defendants and not with others, and "[a]bsent a showing of
vindictiveness or use of an arbitrary standard . . . the
prosecutor's decision is not subject to constitutional scrutiny."
See Russell v. Collins, 998 F.2d 1287, 1294 (5th Cir. 1993).
Simply because one who pleads guilty receives more lenient
treatment than a co-defendant who goes to trial does not in and of
itself mean that the latter has suffered an unconstitutional burden
on his right to go to trial. United States v. Rodriguez, 162 F.3d
135, 152 (5th Cir. 1998). Spaulding has made no showing to trigger
constitutional scrutiny of the prosecutor's plea bargaining
decision.
Further, Spaulding may not rely upon the sentence of a co-
defendant as a yardstick for his own sentence. See United States
v. Garcia, 693 F.2d 412, 417 (5th Cir. 1982). A disparity of
sentences among co-defendants does not, without more, constitute an
abuse of discretion. United States v. Devine, 934 F.2d 1325, 1338
(5th Cir. 1991). The trial court sentenced Spaulding to a prison
term at the bottom of the applicable guideline range. He has
failed to show any constitutional error in connection with his
prosecution or sentence.
Finally, Spaulding's appeal of the alleged denial of his right
to testify is not properly before this court. Accordingly, we
decline to consider Spaulding's claim on this issue without
prejudice to his right to raise the right to testify issue in a
§ 2255 motion.
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AFFIRMED.
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