In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2476
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A ZUREEIAH O’C ONNOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 672-5—Elaine E. Bucklo, Judge.
A RGUED A PRIL 7, 2010—D ECIDED S EPTEMBER 1, 2011
Before W OOD , E VANS , and SYKES, Circuit Judges.
S YKES, Circuit Judge. Azureeiah O’Connor was con-
victed by a jury of wire fraud and appeals her conviction
on multiple grounds. She focuses first on the 1,229-
day delay between the date the last of her codefendants
Circuit Judge Terence T. Evans died on August 10, 2011, and
did not participate in the decision of this case, which is
being resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 09-2476
was arraigned and the start of her trial, a delay that she
contends violated the Speedy Trial Act (the “Act”), 18
U.S.C. §§ 3161 et seq., and her right to a speedy trial
under the Sixth Amendment. She also challenges the
jury instructions, the sufficiency of the evidence to
sustain her conviction, and the form of the indictment
that went to the jury.
The Speedy Trial Act claim is the main event. The
Act generally requires that trials commence within
70 days of a defendant’s arraignment or indictment
(whichever is later), but also permits district courts to
exclude certain periods of time from this 70-day clock.
See id. § 3161(h)(7). In a series of continuances, the
district court excluded all 1,229 days and later denied
O’Connor’s motion to dismiss on Speedy Trial Act
grounds. On appeal O’Connor challenges many of the
court’s exclusions, but review of some of the claimed
violations is hampered by her failure to raise them in
the district court. To preserve an alleged Speedy Trial
Act violation for appeal, the Act requires the defendant
to move to dismiss prior to trial and generally (with
one exception) places the burden on the defendant to
prove the violation. Any violation not preserved by a
motion to dismiss is waived. Id. § 3162(a)(2).
O’Connor’s motion to dismiss challenged just one
of the court’s continuances; on appeal she advances
several additional violations that she did not identify
below. Her failure to specifically identify the additional
violations in her motion may preclude appellate review
under the Act’s waiver provision; at the very least, it is
No. 09-2476 3
a forfeiture, and review would be limited to the plain-
error standard. Either way, O’Connor cannot prevail.
Although the government concedes that one exclusion
of time—for 42 days—was improper, that error alone
doesn’t put O’Connor’s trial outside the statute’s 70-
day limit. As to the other claimed violations, O’Connor
has not established that the continuances amounted
to error, let alone plain error.
One particular challenge, however, relates to an inter-
vening change in the law and deserves special mention.
O’Connor argues that the court improperly excluded
two time periods attributable to preparation of pretrial
motions without making the findings required under
§ 3161(h)(7), the provision that broadly authorizes the
court to exclude time from the speedy-trial clock based
on the “ends of justice.” See Bloate v. United States, 130 S. Ct.
1345, 1357-58 (2010). Under circuit precedent then in
effect, these delays were automatically excludable under
a different provision of the Act authorizing the exclusion
of time for “delay resulting from any pretrial motion.”
See 18 U.S.C. § 3161(h)(1)(D); United States v. Tibboel,
753 F.2d 608, 610 (7th Cir. 1985). But the Supreme Court’s
decision in Bloate displaced Tibboel and applies to cases
(like O’Connor’s) pending on direct review. See United
States v. Townsend, 419 F.3d 663, 665 (7th Cir. 2005).
Because O’Connor failed to identify these particular
violations in her motion to dismiss, our review is (at
most) for plain error. As to the first of these continu-
ances, we find no error at all; the court made sufficient
findings to satisfy § 3161(h)(7) and Bloate. As to the
4 No. 09-2476
second, the continuance was for only 11 days and did
not put the total over the 70-day statutory limit.
We also reject O’Connor’s Sixth Amendment speedy-
trial claim, as well as her challenges to the jury instruc-
tions, the sufficiency of the evidence, and the form of
the indictment that went to the jury room. We therefore
affirm O’Connor’s conviction.
I. Background
On July 25, 2005, O’Connor and eight codefendants
were charged in a 13-count indictment with mail fraud,
wire fraud, and filing false loan applications in violation
of 18 U.S.C. §§ 1341, 1343, and 1014. The indictment
alleged that O’Connor participated in a mortgage-fraud
scheme masterminded by her codefendant Shaun Cross.
O’Connor, who worked as a mortgage-loan officer and
helped to facilitate the fraud, was charged with two
counts of wire fraud as an aider and abettor in violation
of 18 U.S.C. §§ 1343 and 2.
O’Connor’s trial did not begin until January 2009, three
and a half years after her indictment. The complexity of
the case, scheduling problems, guilty pleas by O’Connor’s
codefendants, and other contingencies led to a series
of continuances in which the court excluded all time
from August 22, 2005—the day O’Connor’s speedy-
trial clock began to run—until January 5, 2009,
No. 09-2476 5
the day O’Connor’s trial began. 1 Much of the delay was
attributable to guilty-plea proceedings involving her
codefendants; most pleaded guilty between 2006 and
early 2008, and the final codefendant pleaded guilty on
March 6, 2008. After these guilty pleas, the govern-
ment dismissed one of the wire-fraud counts against
O’Connor. Thus, what began as a nine-defendant, thirteen-
count mortgage-fraud prosecution was whittled down
to a single-defendant, one-count case for trial.
On the eve of trial, O’Connor filed a motion to
dismiss based on the Speedy Trial Act. Her motion chal-
lenged only one of the court’s exclusions of time: The
judge’s decision to reset the trial date from September 4,
2008, to January 5, 2009, “in the interest of justice for
trial preparation” under 18 U.S.C. § 3161(h)(7). Just
before starting jury selection, the court denied
O’Connor’s motion, clarifying that this continuance was
actually granted under § 3161(h)(3)(A) based on the
unavailability of an essential government witness and
was not an “ends of justice” continuance under
§ 3161(h)(7).
Trial began on January 5 and lasted four days. The
government’s evidence provided a detailed account of a
sustained fraudulent scheme spanning more than two
1
In a case involving more than one defendant, “the speedy trial
clock for all defendants typically does not begin to run until the
last of the defendants appears.” United States v. Adams, 625
F.3d 371, 377 (7th Cir. 2010). The last of O’Connor’s codefen-
dants was arraigned on August 22, 2005.
6 No. 09-2476
years, from September 2000 to January 2003, and organized
by Cross, a mortgage broker. The fraud involved more
than $6 million in mortgage loans in 35 transactions on
17 residential properties using the names of 17 different
straw buyers. The loans were provided by 23 banks and
residential lenders, and Cross paid the straw buyers
$5,000 for the use of their names and Social Security
numbers. Some straw buyers also signed the fraudulent
mortgage-loan documents. Cross told the straw buyers
that he would repurchase the homes within a few
months and make the mortgage payments in the in-
terim. After each transaction closed, Cross received the
mortgage funds through title-insurance companies that
he owned, kept the money, and did not make the
mortgage payments. He also used the straw buyers’
identities to fraudulently obtain additional mortgages.
The other defendants, including O’Connor, acted as
“recruiters” who enlisted straw buyers to falsely put
mortgages in their names.
At the time the fraudulent scheme was carried out,
O’Connor worked as a loan officer at Express Mortgage
Company and Home First Mortgage Company, licensed
mortgage brokers. The evidence established that she
processed seven fraudulent loan packages and for-
warded them on to lenders for funding with knowledge
that the identities of the buyers in the loan packages
were false and that Cross was the real purchaser. The
loans were eventually placed in default. In exchange
for her assistance, O’Connor received roughly $20,000
in kickbacks from Cross.
No. 09-2476 7
The jury convicted O’Connor of one count of wire
fraud, and she was sentenced to 50 months’ imprisonment.
Cross, the mastermind of the mortgage-fraud scheme,
received the longest sentence of any of the codefendants—
140 months. See United States v. Cross, 273 F. App’x 557
(7th Cir. 2008). This appeal followed.
II. Discussion
A. Speedy Trial Act
The primary issue on appeal is O’Connor’s challenge to
the district court’s denial of her motion to dismiss
under the Speedy Trial Act. Our review is generally
de novo, United States v. Napadow, 596 F.3d 398, 402 (7th
Cir. 2010), but factual findings are reviewed for clear
error, United States v. King, 338 F.3d 794, 797 (7th Cir. 2003).
The Act requires criminal trials to begin within 70 days
of the indictment or the defendant’s initial appearance,
whichever occurs later. 18 U.S.C. § 3161(c)(1). Where,
as here, the defendant is jointly charged with code-
fendants, the speedy-trial clock starts when the
last codefendant is indicted or arraigned, so long as the
intervening delay is “reasonable.” Id. § 3161(h)(6). If
the defendant is not brought to trial within the 70 days
specified in the Act, “the information or indictment
shall be dismissed on motion of the defendant.” Id.
§ 3162(a)(2). The Act recognizes, however, that certain
delays are justifiable and permits these periods of time
to be excluded from the 70-day clock. Id. § 3161(h); see
also Bloate, 130 S. Ct. at 1351-52; Napadow, 596 F.3d at 402.
8 No. 09-2476
Two provisions of the Act are particularly relevant to
this appeal. The first is known as the “ends of justice”
provision, which permits the court to exclude delays
resulting from continuances granted “on the basis of [the
judge’s] 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.” 18 U.S.C.
§ 3161(h)(7)(A).2 The Act outlines several factors the trial
judge should consider in determining whether to grant
an ends-of-justice continuance, including “[w]hether the
failure to grant such a continuance . . . 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 rea-
sonable time necessary for effective preparation . . . .” Id.
§ 3161(h)(7)(B)(iv). The statute requires the court to
“se[t] forth, in the record of the case, either orally or in
writing, its reasons” for granting an ends-of-justice con-
tinuance. Id. § 3161(h)(7)(A). The Supreme Court has
determined that “the Act is ambiguous on precisely
when [the required] findings must be ‘se[t] forth[] in
the record of the case.’ ” Zedner v. United States, 547 U.S.
489, 507 (2006). But Zedner held that “at the very least
the Act implies” that the district court must enter the
2
The Act was amended in 2008, and the ends-of-justice sub-
section was renumbered from § 3161(h)(8) to § 3161(h)(7).
Most of the district court’s minute orders reference subsec-
tion (h)(8), but because this amendment was not substantive,
we refer to the ends-of-justice subsection as (h)(7).
No. 09-2476 9
findings into the record not later than the time the court
rules on a defendant’s motion to dismiss. Id.
The other Speedy Trial Act provision relevant here,
which the district court invoked to justify the continu-
ance O’Connor specifically challenged in her motion to
dismiss, permits the exclusion of “[a]ny period of delay
resulting from the absence or unavailability of . . . an
essential witness.” 18 U.S.C. § 3161(h)(3)(A). When
the unavailable witness will testify for the government,
the government bears the burden of justifying the exclu-
sion of time. Id. § 3162(a)(2).
O’Connor’s 70-day speedy-trial clock started on
August 22, 2005, the day the last of her codefendants
was arraigned. Trial began on January 5, 2009, a delay of
1,229 days. Although the court excluded all 1,229 days,
the government concedes—and we agree—that the
district court erred by excluding 42 days from May 19,
2008, to July 1, 2008. This delay was attributable to the
court’s scheduling problems, and the Act explicitly pro-
hibits the court from excluding time based on
“general congestion of the court’s calendar.” Id.
§ 3161(h)(7)(C). (We will have more to say about this
error later.) O’Connor’s argument therefore implicates
the 28 days remaining on the speedy-trial clock. Before
addressing the merits, however, we confront a thresh-
old procedural question—whether the continuances
O’Connor challenges on appeal were properly preserved
for review.
10 No. 09-2476
1. Waiver or Forfeiture?
The Speedy Trial Act provides that if a defendant is
not brought to trial within the 70-day limit, “the informa-
tion or indictment shall be dismissed on motion of the
defendant,” but the “[f]ailure of the defendant to move
for dismissal [of the indictment] prior to trial . . . shall
constitute a waiver of the right to dismissal.” Id.
§ 3162(a)(2). Although the plain-error standard gen-
erally governs appellate review of issues not raised in
the district court, see F ED. R. C RIM. P. 52(b), the Act is
clear that “a defendant’s failure to move to dismiss the
indictment constitutes a waiver—not a forfeiture—of
his rights under the Act,” United States v. Morgan, 384
F.3d 439, 443 (7th Cir. 2004); see also United States v.
Broadnax, 536 F.3d 695, 699 (7th Cir. 2008) (“To eliminate
any doubt, we now squarely hold that § 3162(a)(2)
requires a defendant to move to dismiss on speedy
trial grounds before a trial begins or before a plea is
entered.”).
Here, the waiver question is complicated by the fact
that although O’Connor moved to dismiss prior to
trial, as required by the Act, her motion challenged
only one exclusion of time: the court’s order continuing
the case from September 4, 2008, to January 5,
2009. O’Connor’s motion preserved this continuance for
appellate review, but she challenges several others for
the first time on appeal. We have not previously
addressed whether a motion to dismiss challenging one
Speedy Trial Act exclusion preserves other alleged viola-
tions not specifically raised in the motion. Nor, to our
No. 09-2476 11
knowledge, has any other circuit directly addressed this
question.3
The statutory scheme establishing sanctions for ex-
ceeding the 70-day limit suggests that the answer to this
question is “no.” Subsection 3162(a)(2) provides:
If a defendant is not brought to trial within the time
limit required by section 3161(c) as extended by
section 3161(h), the information or indictment shall
be dismissed on motion of the defendant. The de-
fendant shall have the burden of proof of sup-
porting such motion but the Government shall have
the burden of going forward with the evidence in
connection with any exclusion of time under sub-
paragraph 3161(h)(3). . . . Failure of the defendant to
move for dismissal prior to trial or entry of a plea
of guilty or nolo contendere shall constitute a waiver
of the right to dismissal under this section.
18 U.S.C. § 3162(a)(2). O’Connor seizes on the last sen-
tence of this subsection and argues that all a defendant
must do to preserve appellate review of any exclusion
of time under the Act is file a motion to dismiss. This
argument reads the last sentence of the sanctions pro-
vision in isolation.
3
The Second Circuit has suggested, without analysis, that
exclusions not specifically challenged in a motion to dismiss
are waived. See United States v. Oberoi, 547 F.3d 436, 458 (2d
Cir. 2008), vacated & remanded on other grounds, 130 S. Ct. 1878
(2010).
12 No. 09-2476
The last sentence states that the defendant’s failure to
move to dismiss prior to trial “shall constitute a waiver
of the right to dismissal” under the Act. But § 3162(a)(2)
also provides that “[t]he defendant shall have the
burden of proof of supporting” the motion to dismiss
unless the challenged exclusion is one under § 3161(h)(3),
which permits the court to continue a case based on
the unavailability of the defendant or an essential wit-
ness. On a motion to dismiss challenging an exclu-
sion of time under § 3161(h)(3), the government has
“the burden of going forward with the evidence.” Id.
§ 3161(a)(2). Aside from this sole exception, however,
the Act allocates the burden of proving violations to
the defendant. As such, the Supreme Court has held
that the Speedy Trial Act “assigns the role of spotting
violations of the Act to defendants—for the obvious
reason that they have the greatest incentive to perform
this task.” Zedner, 547 U.S. at 502-03.
If, as the Court held in Zedner, the defendant bears
the burden of “spotting” Speedy Trial Act violations, it
follows that any specific violation not raised in a motion
to dismiss is waived. If filing a motion to dismiss
were enough to preserve all violations of the Act—
whether identified in the motion or not—then the
district court or the government, rather than the
defendant, would effectively bear the burden of “spotting
violations,” contrary to the Court’s instruction in Zedner.
This would upset the statutory scheme. By placing the
burden of identifying violations on the defendant, the
Act links the right to dismissal with the duty to draw
the court’s attention to erroneous exclusions of time.
No. 09-2476 13
Thus, the text of § 3162(a)(2)—read as a whole and in
light of the Court’s language in Zedner—strongly
suggests that violations not specifically identified in
the defendant’s motion to dismiss are waived, not for-
feited.
Having said that, we may reserve ultimate judgment
on the waiver-or-forfeiture question for another day;
O’Connor’s argument fails either way. Even if we
assume that her unpreserved challenges were merely
forfeited, not waived, none of the claimed violations
amounts to plain error. We take them up in chronological
order.
2. The Continuances
The August 22, 2005 and September 2, 2005 orders
O’Connor first challenges two continuances granted
early on in the case, on August 22 and September 2, 2005.
On August 22 a magistrate judge continued the case to
September 2 for preparation of pretrial motions and
excluded this delay from the speedy-trial clock. This
exclusion was proper under circuit precedent then in
effect. In Tibboel, 753 F.2d at 610, we held that delays
resulting from the preparation of pretrial motions
fall within the ambit of § 3161(h)(1)(D), the provision
authorizing the automatic exclusion of “delay resulting
from any pretrial motion.” But the Supreme Court held
otherwise in Bloate. The pretrial-motion provision specifi-
cally permits the court to exclude “delay resulting
from any pretrial motion, from the filing of the motion
14 No. 09-2476
through the conclusion of the hearing on, or other prompt
disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D)
(emphasis added). Bloate held that delays resulting
from the preparation of pretrial motions are not covered
by this provision, which automatically excludes delays
from filing through disposition of motions. 130 S. Ct.
at 1353. The Court held that delays attributable to the
preparation of pretrial motions may be excluded under
the ends-of-justice provision, but continuances granted
for this purpose must be supported by case-specific
findings that the benefits outweigh the costs, as required
by § 3161(h)(7). Id. at 1352; see also Zedner, 547 U.S. at 506-07
(To justify an ends-of-justice continuance, the court
must enter the statutorily required findings on the
record orally or in writing.).
Here, the magistrate judge did not make the findings
Bloate requires prior to entering the August 22 exclusion;
the exclusion of the 11 days from August 22 to Septem-
ber 2 was therefore error. Assuming this error was
plain, however, reversal is unwarranted. Adding 11 days
to the speedy-trial clock puts the total at 53 days, still
well short of the 70-day limit.
Similarly, on September 2 the district court held a
status conference with counsel and continued the case
to October 28. In a follow-up minute entry, the court
noted that this time was excluded for “motions, trial
preparations and plea negotiations,” and cited the ends-of-
justice provision. The minute entry by itself is brief and
does not contain the required statutory findings, but
§ 3161(h)(7) permits the court to make an oral record of
No. 09-2476 15
the reasons for the exclusion, so we may look to the
transcript of the status conference. Zedner, 547 U.S.
at 506-07; Napadow, 596 F.3d at 405-06.
There we find a sufficient explanation of the court’s
reasons for granting this continuance. At the September 2
hearing, one of the defense attorneys noted that he “re-
ceived four very big boxes of discovery” and needed “a
lot more time than the [c]ourt had allowed for
discovery motions[,] . . . maybe another 60 days just to
get through discovery to figure out what motions [to
file].” Another defense lawyer noted that “[t]he Bates
numbers [in the discovery documents] run higher than
10,000.” The sheer volume of the discovery reflects the
complexity of the case, which involved more than
30 separate fraudulent transactions. At the conclusion of
the hearing, based on this colloquy with counsel, the
judge granted a continuance to October 28 and excluded
this time to allow for “motions, preparation, and any
plea negotiations.” The discussion among counsel and
the court reflects the judge’s conclusion that this delay
was necessary to give the defense lawyers time to under-
stand the government’s case, analyze the evidence,
and decide what motions might be appropriate and
whether their clients’ best course was to plead guilty or
go to trial. It is precisely for cases like this one that
the ends-of-justice provision exists; it offers district
judges the flexibility needed to effectively manage
complex litigation. See Zedner, 547 U.S. at 497. Together,
the transcript and the minute order support this ends-of-
justice exclusion.
16 No. 09-2476
The January 27, 2006 and May 12, 2006 orders
O’Connor next challenges an order the district court
entered on January 27, 2006, continuing the trial date
from May 15, 2006, to July 17, 2006, citing “trial prepara-
tion” as the reason and invoking the ends-of-justice
provision. This continuance must be read in light of
another granted earlier in the case and one that came
later. At the court’s October 28, 2005 status conference,
the defense attorneys told the court they would need
several more months to review the voluminous dis-
covery in the case and would not be ready for trial until
the spring. With the consent of counsel, the court set a
trial date of May 15, 2006, and entered an ends-of-
justice exclusion of all time through that date for “con-
tinuity of counsel, motions and trial preparations.” On
January 27, 2006, the court reset the May 15 trial date
to July 17, citing trial-preparation needs.
Later, on May 12, 2006, the court adjourned the trial
again, this time to January 22, 2007. O’Connor challenges
this order as well. Five of the defense attorneys had
notified the court that they would be unavailable to try
the case on July 17, so the court convened a status con-
ference on May 12 to take up their request for an adjourn-
ment. At this conference counsel advised the court that
the earliest they would all be available for trial was
January 2007. The court expressed concern about the
length of the delay but acquiesced and rescheduled the
trial for January 22, 2007. The court entered an ends-of-
justice exclusion through that date, again citing “trial
preparation” and “continuity of counsel” as the reasons
for the continuance.
No. 09-2476 17
Taking this context into account, we think the court
made an adequate record of the reasons for the January 27
and May 12 continuances as required by § 3161(h)(7)(A).
The Speedy Trial Act simply requires the court “to put
on the record its reasons for finding the continuance
warranted[;] . . . it does not require that the court recite
the statutory factors or make findings as to each of them
on the record.” United States v. Adams, 625 F.3d 371, 380
(7th Cir. 2010). We have held that “the Speedy Trial Act
does not require the court ‘to cite . . . sections [of the
Act] or to track the statutory language in a lengthy legal
opinion,’ but rather to make findings ‘sufficiently
specific to justify a continuance[] and comport with the
purposes of the Act.’ ” Napadow, 596 F.3d at 405 (quoting
United States v. Jean, 25 F.3d 588, 594 (7th Cir. 1994) (alter-
ations in Napadow)). It’s clear from the transcript of the
court’s conferences with counsel that these continuances
were based on the complexity of the case, the magnitude
of the discovery, and the attorneys’ schedules. Con-
sidered together, the docket entries and the transcript
adequately reflect the court’s reasons for allowing these
two ends-of-justice continuances.
The March 24, 2008 and May 1, 2008 orders
Between 2006 and 2008, many of O’Connor’s codefen-
dants pleaded guilty, resulting in additional delays
that O’Connor concedes were properly excluded under
the Act. The last of her codefendants pleaded guilty on
March 8, 2008, and O’Connor’s trial was scheduled to
begin on March 24, 2008. On that date a dispute arose
18 No. 09-2476
over the authentication of mortgage records the govern-
ment planned to submit as exhibits. Two weeks earlier,
the government filed a motion to admit the records
under Rule 902(11) of the Federal Rules of Evidence
and tendered the required declarations from the records
custodians attesting to their authenticity. Just before
jury selection was set to begin, O’Connor’s counsel ob-
jected, raising a challenge to the sufficiency of the declara-
tions (though not the authenticity of the records). The
parties jointly requested a continuance to May 19, 2008,
to resolve the dispute so that the mortgage records could
be admitted without calling records custodians from
22 lending institutions located all over the country. The
court granted this request, continued the case to May 19,
and entered another ends-of-justice exclusion for “trial
preparation.” We find no error (much less plain error)
in this order. The on-the-record discussion among
counsel and the court, together with the court’s docket
entry, are sufficient to satisfy the requirements of the
statute.
On May 1, 2008, the judge notified the parties of a
conflict in her schedule that required the court to
transfer the case to another judge or reset the May 19 trial.
O’Connor’s counsel chose the latter option and agreed
that the delay could be excluded under the Act. The
judge proposed July 1, 2008, as the new trial
date. O’Connor’s counsel instead suggested a date in
September based on other commitments during the
summer. The judge reluctantly acquiesced and
rescheduled trial for September 22, 2008, entering
another ends-of-justice exclusion citing the need for
No. 09-2476 19
“continuity of counsel.” O’Connor’s attorney waived
objection to this delay.
O’Connor now argues that the exclusion of time from
May 19 to September 22 was improper because the Act
does not permit the court to exclude delay resulting
from “general congestion of the court’s calendar.”
§ 3161(h)(7)(C). The government counters that only
42 days of this delay—from May 19 to July 1—were
improperly excluded based on the court’s calendar con-
gestion. The court had proposed to start trial on July 1
but counsel was unavailable. Accordingly, the delay
from July 1 to September 22 was solely attributable to
calendar conflicts of counsel, not the court. Indeed, the
judge specifically noted the need for continuity of
counsel when she set the September 22 date. We agree
with the government that only 42 days were im-
properly excluded from the speedy-trial clock. The rest
of the delay was properly excluded and adequately
supported by the court’s conclusion that the additional
time was necessary to maintain continuity of counsel.
The September 4, 2008 order
We come at last to the only continuance O’Connor
preserved for plenary review by specifically citing it as
the basis for her motion to dismiss. At a pretrial hearing
on September 4, 2008, the government informed the
court that Dana Powell, one of its witnesses, would be
unable to testify at the September 22 trial. Powell had
recently delivered a baby who was very ill and needed
to be nursed as many as 13 times a day. Powell was
20 No. 09-2476
under doctor’s orders to remain at home with the baby
and not leave the house except to go to the hospital.
The prosecutor informed the court that Powell was one
of the straw buyers and was an essential witness for
the government, but her medical emergency obviously
prevented her from testifying at trial. The court and
counsel then discussed when Powell might be available
to testify; the court proposed putting the case on the
“backup” calendar so that it could be tried before the
end of the year. Both the prosecutor and O’Connor’s
counsel objected to placing the case on the court’s
“backup” calendar because of the difficulty in assembling
witnesses on short notice and the uncertainty of
Powell’s availability. The judge agreed and continued
the trial to January 5, 2009, but instead of docketing
the exclusion under § 3161(h)(3), the unavailable essential-
witness provision, the court entered a minute order
again excluding this time under the ends-of-justice provi-
sion “for trial preparation.”
Less than a week before trial, O’Connor moved to
dismiss, arguing that the September 4 exclusion of time
violated the Speedy Trial Act. In response the govern-
ment submitted a supplemental affidavit offering
further evidence that Powell was an essential and unavail-
able witness. On January 5, 2009, before starting jury
selection, the court heard argument and ruled on the
motion to dismiss. The judge specifically noted that
when the continuance was granted, Powell “had
recently had a baby” and that “the baby’s health did not
allow her to leave.” The judge concluded that Powell
was a “very important” witness; this conclusion
No. 09-2476 21
was based on the government’s representations at the
September 4 pretrial conference as well as the supple-
mental affidavit offered in response to the motion to
dismiss. The judge also noted that at the September 4
hearing,
the government represented and we talked about at
that hearing why this witness was very important,
and the government explained the importance and
gave a good explanation, which is supported by the
record, as to why this witness was unavailable, that
she had recently had a baby, the baby’s health did
not allow her to leave; and, therefore, that was why
I granted the continuance.
Accordingly, the judge clarified that “it was pretty clear . . .
from the [September 4] hearing that the reason for con-
tinuing the trial was that a witness was both essential
and unavailable.” The court then entered a specific
finding that Powell “was both [an] essential and unavail-
able” witness and for this reason the delay was “properly
excludable” under the unavailable-witness provision of
the Act. On that basis the court denied the motion to
dismiss.
O’Connor now argues that the court could not enter
an ends-of-justice continuance on September 4 and later
change course, excluding the time under the unavailable-
witness provision when denying the motion to dismiss
on January 5. She maintains that the January 5 ruling
was an improper retroactive continuance, relying on
United States v. Janik, 723 F.2d 537, 544-45 (7th Cir. 1983),
which suggested in dicta that a judge cannot, in ruling
22 No. 09-2476
on a Speedy Trial Act motion to dismiss, retroactively
justify a continuance based on reasons not considered
at the time the continuance was granted. This argu-
ment misconstrues the substance of the September 4
hearing. Although the minute entry states that the con-
tinuance was granted “in the interest of justice for trial
preparation,” the on-the-record colloquy between the
court and counsel makes it unmistakably clear that the
continuance was granted because Powell was both an
essential witness and unavailable because of her
newborn’s serious illness. Despite the minute entry,
which appears to be a technical error, from the very
beginning this continuance was based on § 3161(h)(3),
the unavailable essential-witness provision, and not
§ 3161(h)(7), the ends-of-justice provision.
The Supreme Court has held that the findings required
for an ends-of-justice continuance under § 3161(h)(7)
need not be entered into the record contemporaneously
with the continuance, but must “be made, if only in the
judge’s mind, before granting the continuance,” and may
be recorded later provided they are “put on the record
by the time a district court rules on a defendant’s
motion to dismiss under § 3162(a)(2).” Zedner, 547 U.S. at
506-07; see also Napadow, 596 F.3d at 405 (“[T]he district
court need not explain its findings contemporaneously
with its decision to exclude time.”); United States v.
Bryant, 523 F.3d 349, 361 (D.C. Cir. 2008) (“Zedner
permits trial judges to put their findings on record at the
time they rule on a [Speedy Trial Act] motion to dismiss,
rather than at the time they grant the continuance . . . .”);
United States v. Larson, 417 F.3d 741, 746 (7th Cir. 2005)
No. 09-2476 23
(“Though the district court is not required to make
Speedy Trial Act findings contemporaneously with a
continuance order, the better practice is for the court
to make the required findings at least prior to a defen-
dant’s motion to dismiss the indictment for a violation
of the Act.” (internal citation omitted)).
In contrast to ends-of-justice continuances, however,
periods of delay excludable under § 3161(h)(1)-(6) may be
automatically excluded if the specified conditions are
present; no ends-of-justice balancing by the court is
necessary because the balance has already been struck
by Congress. United States v. Tinklenberg, 131 S. Ct. 2007,
2013-15 (2011); Bloate, 130 S. Ct. at 1351-52. Here, there is
no room for doubt that the September 4 adjournment
was necessitated by Powell’s unavailability to testify at
the September 22 trial based on her baby’s illness.
Because she was an essential witness, this time was
automatically excludable from the speedy-trial clock
under § 3161(h)(3); no ends-of-justice findings were
necessary.4 That the judge clarified the basis for the
September 4 continuance when she later ruled on the
4
The court’s findings that Dana Powell was both essential
and unavailable were not clearly erroneous. The record
supports the unavailability finding, see United States v. Koller,
956 F.2d 1408, 1413 (7th Cir. 1992), and the court’s finding
that Powell was an essential witness was also correct.
O’Connor now argues that Powell’s testimony was merely
cumulative, but a witness may still be considered essential
even if her testimony is not strictly necessary to obtain a
conviction. Cf. United States v. Tedesco, 726 F.2d 1216, 1222
(7th Cir. 1984) (making this point with an accomplice).
24 No. 09-2476
motion to dismiss does not change matters. The court
relied on the same rationale at both hearings, which
distinguishes this case from Janik. Even if we were to
treat this as an ends-of-justice continuance (which it
was not), no Speedy Trial Act violation occurred. Under
Zedner, as long as the court’s reasons for granting the
continuance are placed on the record by the time the
court rules on a motion to dismiss, the procedural re-
quirements of the Act are satisfied.
Of course, when granting an ends-of-justice continu-
ance, the “best practice” is for the court “to put its
findings on the record at or near the time when it grants
the continuance.” Zedner, 547 U.S. at 507 n.7. The court’s
statement of reasons need not be lengthy and need not
“track the statutory language,” but it should be enough
to “ensure[] the district court considers the relevant
factors and provides this court with an adequate record
to review.” Napadow, 596 F.3d at 405 (quotation marks
omitted). Here, however, the continuance was based on
an unavailable essential witness, which requires no ends-
of-justice reasoning. O’Connor’s motion to dismiss
was properly denied.
B. Sixth Amendment Speedy-Trial Claim
The Sixth Amendment guarantees an accused “the
right to a speedy and public trial.” U.S. C ONST. amend. VI.
Apart from her Speedy Trial Act argument, O’Connor
contends that the 1,229-day pretrial delay violated her
Sixth Amendment right to a speedy trial. Because
O’Connor did not make this argument below, our review
No. 09-2476 25
is for plain error. United States v. Gearhart, 576 F.3d 459,
462-63 (7th Cir. 2009).
Our rejection of O’Connor’s argument under the
Speedy Trial Act does not resolve her constitutional
claim; while related, the constitutional and statutory
rights are distinct. See id. at 462 (“The constitutional right
to a speedy trial is both narrower and broader than the
corresponding statutory right.”). Thus, “a violation of one
[right] may be found without a violation of the other.”
United States v. White, 443 F.3d 582, 588 (7th Cir. 2006).
A Sixth Amendment speedy-trial claim turns on the
following general factors: “[W]hether [the] delay before
trial was uncommonly long, whether the government
or the criminal defendant is more to blame for that
delay, whether, in due course, the defendant asserted
his right to a speedy trial, and whether he suffered preju-
dice as the delay’s result.” Doggett v. United States, 505
U.S. 647, 651 (1992).
Delays of more than one year are considered presump-
tively prejudicial, White, 443 F.3d at 589-90, and this one
obviously qualifies. However, O’Connor bears primary
responsibility for many of the pretrial delays and did
not suffer actual prejudice. She changed counsel twice
during the course of the pretrial proceedings, moved
for several continuances, consented to others, and did
not assert her speedy-trial rights until the end of
December 2008, when she moved to dismiss on Speedy
Trial Act grounds several years after her indictment and
a week before her trial. Moreover, O’Connor did not
seek to sever her case from the other defendants
to mitigate delays resulting from the joint prosecu-
26 No. 09-2476
tion. Finally, although O’Connor draws our attention
to certain government witnesses who had difficulty re-
membering some facts during cross-examination, these
memory lapses were not prejudicial. If anything, they
were helpful to O’Connor; she could have highlighted
the gaps in their memories as a reason to discount
their testimony. The pretrial delay in this case, though
lengthy, did not violate the Sixth Amendment.
C. Jury Instructions
O’Connor next challenges the court’s use of a joint-
venture instruction. She claims that the instruction con-
structively amended the indictment by implicitly in-
cluding an uncharged conspiracy count. She also
maintains that the instruction had the effect of easing
the government’s burden of proof. We need not address
the merits of either argument. O’Connor waived any
challenge to the joint-venture instruction.
A defendant who specifically approves an instruction
in the district court waives the right to challenge it on
appeal. United States v. Griffin, 493 F.3d 856, 863-64 (7th
Cir. 2007) (“Counsel’s affirmative statement that he had
no objection to the proposed instruction constitutes
waiver of the ability to raise this claim on appeal.”). Here,
O’Connor’s counsel stated on the record that he had
no objection to the joint-venture instruction. O’Connor
attempts to avoid this waiver by casting her appellate
argument as a challenge to the jury instructions as a
whole rather than a challenge to the joint-venture in-
struction alone. This argument is nothing more than a
rhetorical sleight of hand. O’Connor’s claim of instruc-
No. 09-2476 27
tional error centers on the joint-venture instruction,
which she contends was flawed, given out of context,
and corrupted the instructions in their entirety. She
does not challenge the instructions as a whole but
focuses on the joint-venture instruction in particular and
its effect on the other instructions. Because O’Connor
consented to this instruction, she cannot challenge it
on appeal.
D. Sufficiency of the Evidence
O’Connor also maintains that the evidence was insuffi-
cient to support her wire-fraud conviction. Sufficiency-of-
the-evidence challenges carry a very steep standard of
review; we view the evidence in the light most favorable
to the government and reverse only if no rational juror
would have found the defendant guilty beyond a rea-
sonable doubt. United States v. Roberts, 534 F.3d 560,
569 (7th Cir. 2008). To convict O’Connor of wire fraud
under 18 U.S.C. § 1343, the government had to prove
that she: (1) participated in a scheme to defraud;
(2) had the intent to defraud; and (3) used the wires in
furtherance of the fraudulent scheme. Id.
O’Connor first claims that because she believed that
Cross would make the mortgage payments and never
meant to cheat the banks out of money, she lacked intent
to defraud. This argument misunderstands the intent
element of wire fraud. To win a conviction under § 1343,
the government only needed to prove “a willful act by the
defendant with the specific intent to deceive or cheat,
usually for the purpose of getting financial gain for
28 No. 09-2476
one’s self or causing financial loss to another.” Id. at 571
(emphasis added) (quotation marks omitted). The gov-
ernment did not need to prove that O’Connor intended
to harm the banks or cause them to lose money. United
States v. Leahy, 464 F.3d 773, 786-87 (7th Cir. 2006).
The government’s evidence established (or so a jury
reasonably could believe) that in exchange for $20,000
in side payments from Cross, O’Connor knowingly pro-
cessed seven fraudulent loan packages and forwarded
them on to lenders with the intent that they would
provide mortgage funding. This is sufficient to estab-
lish intent to defraud.
O’Connor also claims that she was merely an
unwitting pawn who lacked substantial education or
training and was tricked into participating in Cross’s
scheme. She points out that she told the FBI that she
thought Cross’s deals looked clean. She emphasizes as
well that she did not graduate from high school and had
limited training as a loan officer. She cites United States
v. Bailey, 859 F.2d 1265, 1273-75 (7th Cir. 1988), which
held that proof of knowing participation in a fraudulent
scheme requires more than knowledge of “shadowy
dealings,” superficial participation, or the exchange of
money. Unlike in Bailey, the evidence establishes that
O’Connor was heavily involved in the fraudulent
scheme. She knowingly processed and sent to lenders
for approval multiple fraudulent mortgage-loan applica-
tions falsely representing that persons other than Cross
were purchasing the subject properties. She also met
with some of the straw buyers and falsely reported on
several loan forms that she had personally interviewed
the applicants when she had not. Most damning is
No. 09-2476 29
O’Connor’s acceptance of nearly $20,000 in kickbacks
from Cross, a fact she admitted at trial. This quid pro
quo—trading her sham approvals of multiple fraudulent
loan applications for thousands of dollars in under-the-
table payments—is convincing evidence of fraudulent
intent.
To be sure, Bailey does suggest that proving intent to
defraud might be more difficult when the defendant is
an unsophisticated low-level participant rather than,
for example, a highly educated corporate executive. See
id. at 1275. But we have cautioned that Bailey “do[es] not
supply an unsophisticated defendant with an automatic
defense to a fraud . . . indictment.” United States v.
Johnson, 927 F.2d 999, 1005 (7th Cir. 1991). This principle
is particularly applicable here. The government offered
ample evidence of O’Connor’s guilt. Accepting her ex-
culpatory theory would require us to read the evidence
in her favor rather than in favor of the jury’s verdict.
The evidence was more than sufficient to convict.
E. Prejudicial Surplusage in the Indictment
Finally, O’Connor challenges the district court’s deci-
sion not to redact certain portions of the indictment
before sending it to the jury room. At the close of evi-
dence, the parties disagreed over the form of the indict-
ment the court would provide to the jury. The caption of
the indictment identified O’Connor’s codefendants, and
she asked the court to redact their names as prejudicial
surplusage. The government objected to removing the
codefendants’ names because the jury might speculate
30 No. 09-2476
about why the key participants in the scheme—whose
involvement had been the subject of much of the trial
testimony—were not included as defendants in the cap-
tion. The judge denied O’Connor’s request and let the
unredacted form of the indictment go to the jury. The
judge did, however, issue a cautionary instruction
telling the jurors not to “speculate [about] why any other
person whose names you may have heard during the
trial or who was named in the indictment in this case as
a defendant is not currently on trial before you.”
The Federal Rules of Criminal Procedure provide that
“[u]pon the defendant’s motion, the court may strike
surplusage from the indictment or information.” FED. R.
C RIM . P. 7(d). The court’s decision on a Rule 7(d) motion
turns on considerations of relevance and prejudice.
United States v. Peters, 435 F.3d 746, 753 (7th Cir. 2006)
(“Surplusage should not be stricken unless it is clear
that the allegations are not relevant to the charge and
are inflammatory and prejudicial.” (quotation marks
omitted)). We review the denial of a Rule 7(d) motion
to strike for abuse of discretion. United States v. Terrigno,
838 F.2d 371, 373 (9th Cir. 1988).
We find no abuse of discretion here. The identity of
the codefendants was relevant to the charge against
O’Connor. Their names had been repeated often during
the trial, and this information was important to provide
the jury with a more complete picture of the scheme.
The link between O’Connor and her codefendants was
central to the case, so leaving their names in the indict-
ment’s caption caused no prejudice. Finally, the court
issued a cautionary instruction warning the jury that
No. 09-2476 31
the indictment was not evidence and that O’Connor’s
association with her codefendants was not sufficient by
itself to prove her knowing participation in the scheme.
See United States v. Marshall, 985 F.2d 901, 906 (7th Cir.
1993) (cautionary instructions can mitigate the risk of
prejudice).
O’Connor raises two additional Rule 7(d) arguments
for the first time on appeal, both unavailing. She claims
that a paragraph in the indictment referring to the total
loss caused by the fraudulent scheme was prejudicial
surplusage. We disagree. The amount of the fraud was
relevant and had been placed in evidence during the
trial. The evidence of the loss amount—about $6 million—
approximated the $6.2 million loss alleged in the indict-
ment. O’Connor’s final argument is that some parts of
the indictment described facts that pertained only to the
involvement of others in the scheme but erroneously
and prejudicially implied her participation. But the wire-
fraud count against her incorporated by reference the
entire fraudulent scheme. Accordingly, the parts of the
indictment she claims were irrelevant were actually
included in the charge against her. The form of the in-
dictment that went to the jury did not contain
irrelevant and prejudicial surplusage.
A FFIRMED.
9-1-11