FILED
NOT FOR PUBLICATION MAR 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50618
Plaintiff - Appellee, D.C. No. 8:11-cr-00246-JLS-2
v.
MEMORANDUM*
RICARDO BONILLA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted March 4, 2015**
Pasadena California
Before: GOULD and TALLMAN, Circuit Judges and KORMAN,*** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Defendant Ricardo Bonilla appeals his conviction of conspiracy to defraud
the United States, in violation of 18 U.S.C. § 286, in connection with a large
fraudulent tax-refund scheme. Bonilla contends that the district court erred in
denying his motion to dismiss the indictment due to his asserted violations of his
statutory and constitutional speedy trial rights. We have jurisdiction under 28
U.S.C. § 1291. We affirm.
1. The district court properly granted the two trial continuances based on
the “ends of justice” exclusion under 18 U.S.C. § 3161(h)(7), because the
continuances were limited in time and justified on the record with reference to the
facts as of the time the delay was ordered. See United States v. Lewis, 611 F.3d
1172, 1176 (9th Cir. 2010). Both continuances were limited in time. The
continuances were also justified on the record by the complexity of this case and
defense counsel’s requests for adequate time to prepare for trial.
2. Bonilla does not contest that the statutory factors support the district
court’s grant of the continuances; rather, he contends that his statutory speedy trial
rights were violated because the government did not timely disclose to the district
court former defense counsel’s conflict of interest from representation of other
parties and that the same counsel was deficient in his duties during discovery.
Bonilla points to no authority that imposes a duty on the government to monitor
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the defense’s discovery progress and tell the court when it sees a deficiency.
Bonilla was represented by counsel, and it was defense counsel’s professional
responsibility to diligently pursue discovery and preparations for trial.
Bonilla cites Mannhalt v. Reed, 847 F.2d 576, 583–84 (9th Cir. 1988) in
support of his position that the government had a duty to timely notify the district
court of defense counsel’s conflict of interest. But Mannhalt contains no
discussion about the government’s duty to timely notify the district court of
defense counsel’s conflict of interest, and Bonilla concedes that “the obligation is
upon defense counsel to alert the court of potential conflicts.” We conclude that
the pretrial continuances did not violate Bonilla’s statutory speedy trial rights.
3. The district court also did not err in concluding that Bonilla’s
constitutional speedy trial rights were not violated. To determine whether a
defendant’s constitutional speedy trial rights are violated, we consider four factors:
“(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right to a speedy trial; and (4) the prejudice to the defendant.” See
United States v. Gregory, 322 F.3d 1157, 1161 (9th Cir. 2003) (citing Barker v.
Wingo, 407 U.S. 514, 530 (1972)). Among the four related factors, the reason for
the delay is the “focal inquiry.” See United States v. King, 483 F.3d 969, 976 (9th
Cir. 2007) (internal citation omitted).
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A balanced and fair analysis of the four Barker factors requires us to
conclude that Bonilla’s constitutional speedy trial rights were not violated. First, a
22-month delay is not considered so excessively long that it would weigh heavily
in Bonilla’s favor. See Gregory, 322 F.3d at 1162. Second, Bonilla’s former
defense counsel, who did not retrieve discovery from the government and did not
notify the district court of his potential conflict of interest, was more to blame for
the pretrial delay. Former defense counsel was Bonilla’s agent, so his acts were
charged against Bonilla. See Vermont v. Brillon, 556 U.S. 81, 90–91 (2009)
(“Because the attorney is the defendant’s agent when acting, or failing to act, in
furtherance of the litigation, delay caused by the defendant’s counsel is also
charged against the defendant.”) (internal citation omitted). The second factor set
out by the Supreme Court in Barker and applied by us in Gregory thus weighs
against Bonilla. Third, the district court was correct that even assuming that
Bonilla promptly asserted his speedy trial right, this factor weighs neither for nor
against him. Fourth, Bonilla did not raise in his opening brief that he suffered
prejudice as a result of the pretrial delay, so this argument is waived. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Even assuming that Bonilla did not
waive his argument of prejudice, the record does not show any actual prejudice to
Bonilla. To the contrary, the reason why the district court granted the continuances
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was to allow defense counsel adequate time to prepare for trial, in order to avoid
prejudice to Bonilla.
AFFIRMED.
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