United States v. Maxwell

United States Court of Appeals
For the First Circuit

No. 03-2042

UNITED STATES OF AMERICA,

Appellee,

v.

PEGGY L. MAXWELL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

(Hon. Mark L. Wolf, U.S. District Judge)

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.

Barry S. Pollack, with whom Karen A. Pickett and Donnelly,
Conroy & Gelhaar, were on brief for Defendant-Appellant.

Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
Appellee.

December 3, 2003
 STAHL, Senior Circuit Judge. Defendant-appellant Peggy

Maxwell appeals from her conviction and sentence on one count of

wire fraud, in violation of 18 U.S.C. § 1343. She challenges (1)

the district court's denials of her motions to dismiss on statutory

and constitutional speedy trial grounds, and (2) the district

court's inclusion for sentencing purposes of certain losses as

"relevant conduct" attributable to her.

I. BACKGROUND

Maxwell and her co-defendants Eduardo McIntosh and Cal

DeAson were indicted on December 6, 2001, on one count of

conspiracy, in violation of 18 U.S.C. § 371; two counts of mail

fraud, in violation of 18 U.S.C. § 1341; and fifteen counts of wire

fraud, in violation of 18 U.S.C. § 1343. All of the charges were

in connection with an investment fraud and Ponzi scheme involving

two sets of investors that ran from October 1998 until December

2001. McIntosh, the leader and primary beneficiary of the scheme,

used most of the money obtained for personal expenses, but also

used some of the money from the second set of investors, recruited

in May 1999, to repay the first set of investors, recruited in

October 1998. DeAson and Maxwell acted as McIntosh's agents,

recruiting investors and channeling investor money to McIntosh.

Maxwell and McIntosh were arraigned on January 4, 2002,

and on January 14, 2002, they entered not guilty pleas. On March

5, 2002, Maxwell moved to sever her case from her co-defendants.

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The Magistrate Judge issued a final status report as to Maxwell on

March 7, 2002, stating that her case was being returned to the

district court. The Magistrate Judge did not issue a final status

report for McIntosh and DeAson until October 1, 2002. The same

day, the district court issued a notice that it would hold a change

of plea hearing for McIntosh and a scheduling conference for

Maxwell and DeAson on November 1, 2002. Between March 7 and

October 1, 2002, the remaining co-defendants and the government

agreed to several continuances.

The district court first addressed Maxwell's severance

motion at the November 1 scheduling conference, when it indicated

that it would hold a hearing on the motion. Maxwell withdrew the

motion the same day.

On November 4, 2002, Maxwell filed a motion to dismiss

the indictment contending that she had been denied the right to a

speedy trial under the Speedy Trial Act (STA), 18 U.S.C. § 3161.

She alleged that the government's motions for continuances were

neither timely nor "properly grounded." As a result, she claimed,

the Magistrate Judge never had the opportunity to address fully

whether the "ends of justice" served by the continuances

"outweigh[ed] the best interest of the public and the defendant in

a speedy trial."

On December 24, 2002, the district court denied the

motion, finding no STA violation. United States v. Maxwell, 247 F.

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Supp.2d 10, 15 (D. Mass. 2002) ("Maxwell I"). The court first held

that Maxwell's STA clock began running on January 5, 2002, the day

after her arraignment. See id. at 12. Second, the court found

excludable the period between January 5 and March 7, 2002 because

her co-defendant DeAson was not arraigned until March 6, 2002. See

id. at 12. Third, the court found that Maxwell's motion to sever

resulted in excludable delay from March 5 through November 1, 2002,

pursuant to 18 U.S.C. § 3161(h)(1)(F) as "delay resulting from any

pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such

motion." 247 F. Supp.2d at 13. The court stated that it was

relying on its

usual practice in multi-defendant cases . . . not [to]
decide any pending motions until the Magistrate Judge
[has] completed her work concerning all of the defendants
before her. Maxwell had not requested any variance from
this practice or an expedited ruling on her Motion to
Sever.

Id. at 14.

On February 13, 2003, Maxwell moved to dismiss the

indictment on the basis that her Sixth Amendment constitutional

right to a speedy trial had been violated. The district court

denied this motion on March 3, 2003, finding "lack of any unusual

prejudice caused by the passage of time." United States v.

Maxwell, 247 F. Supp.2d 25, 32 (D. Mass. 2003) ("Maxwell II").

On March 7, 2003, pursuant to a plea agreement, Maxwell

entered a conditional guilty plea to one count of wire fraud and

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reserved the right to appeal the district court's denial of her

motions to dismiss the indictment on speedy trial grounds under the

STA and the Sixth Amendment. She was sentenced to eighteen months'

imprisonment, three years' supervised release, and a $30,000 fine.

This appeal followed.

II. DISCUSSION

A. Speedy Trial Act

We review the district court's denial of a motion to

dismiss based upon the Speedy Trial Act de novo as to legal rulings

and for clear error as to factual findings. United States v.

Scantleberry-Frank, 158 F.3d 612, 614 (1st Cir. 1998).

The STA provides that a defendant be tried within seventy

days of "the filing date (and making public) of the information or

indictment, or from the date the defendant has appeared before a

judicial officer of the court in which such charge is pending,

whichever date last occurs." 18 U.S.C. § 3161(c)(1). The STA,

however, "mandates the exclusion of certain periods of delay in

calculating" the seventy days. United States v. Salimonu, 182 F.3d

63, 67 (1st Cir. 1999); see 18 U.S.C. § 3161(h)(1)-(9).

For Maxwell, the period began on January 5, 2002, the day

after her arraignment. The period from January 5 to March 7, 2002

is excludable because DeAson was not arraigned until March 6, 2002.

See United States v. Barnes, 251 F.3d 251, 258-59 (1st Cir. 2001)

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("[T]he STA clock begins to run anew on the date of the last co-

defendant's arraignment.").

The issue on appeal is whether the period from March 5,

2002 to November 1, 2002 is excludable due to Maxwell's motion to

sever. The STA provides for exclusion of "delay resulting from any

pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such

motion." 18 U.S.C. § 3161(h)(1)(F). Maxwell argues that a period

is excludable under 18 U.S.C. § 3161(h)(1)(F) only after a court

actually sets a date for a hearing on a pending motion. According

to Maxwell, this means that only thirty days from the date the

government had submitted its opposition to the motion to sever--

March 19, 2002--should be excluded, pursuant to 18 U.S.C. §

3161(h)(1)(J).1 Hence, she contends that the STA clock began to

run again on April 19, 2002 and expired seventy days later on June

28, 2002.

1
That section provides:

"The following periods of delay shall be excluded in computing
the time within which an information or an indictment must be
filed, or in computing the time within which the trial of any such
offense must commence:
(1) Any period of delay resulting from other proceedings concerning
the defendant, including but not limited to . . .
(J) delay reasonably attributable to any period, not to exceed
thirty days, during which any proceeding concerning the defendant
is actually under advisement by the court."
18 U.S.C. § 3161(h)(1)(J).

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 We agree with the district court that "such a requirement

should not be read into the statute." Maxwell I, 247 F. Supp.2d at

13. Maxwell's interpretation would require an on-the-record

determination that a hearing on a particular motion is necessary.

That Congress specifically required a finding on the record for

continuances under 18 U.S.C. § 3161(h)(8)(A) indicates that

Congress did not intend the same for time exclusions under 18

U.S.C. § 3161(h)(1)(F). See United States v. Grosz, 76 F.3d 1318,

1325 (5th Cir. 1996) (finding that "the language of Subsection F

does not impose a requirement that the court formally set a motion

for hearing"); cf. Henderson v. United States, 476 U.S. 321, 326-28

(1986) (interpreting 18 U.S.C. § 3161(h)(1)(F) not to have a

reasonableness requirement because Congress placed such a

requirement in 18 U.S.C. § 3161(h)(7) but not in sections (1)-(6),

as well as recognizing Congressional intent that 18 U.S.C. §

3161(h)(1)(F) be read broadly with any limitations coming from

circuit or district court rules rather than the statute itself).

In Salimonu, we affirmed in a similar case where the

district court scheduled a hearing on the defendant's

reconsideration motions a full two years after those motions were

filed. The district court ruled that the time between the filing

of the motions and the date of the hearing was excludable under 18

U.S.C. § 3161(h)(1)(F). See 182 F.3d at 67-68. That is, the

district court concluded, because the motions required a hearing,

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the long delay in holding the hearing was irrelevant. See id. The

defendant argued that the court's determination that a hearing was

"required" was in error. See id. at 68. In affirming, we first

noted that if a hearing, in fact, was not required, the "error

would be significant; in other words, in contrast to the

potentially unreasonable time that is excluded from STA

calculations when a hearing is required, only 30 days may be

excluded when a hearing is not required." Id. We deferred,

however, to the district court's conclusion that the

reconsideration motions were of the type that required a hearing,

and that absent "obvious subterfuge" by the district court, "we are

loath to question the court's judgment." Id. As a result, the

time between the filing of the motion and the hearing was

excludable. See id.

Salimonu guides us to the same conclusion here. After

reading Maxwell's "skillfully written" motion to sever, an

accompanying sixteen-page memorandum, three exhibits, and the

government's thirteen-page opposition, the district court

ultimately concluded that the motion raised complex issues and

required a hearing. Maxwell I, 247 F. Supp.2d at 14. Even though

it took the court eight months to state on the record that it had

decided this, we hold that 18 U.S.C. § 3161(h)(1)(F) permits the

entire time to be excluded. Our conclusion is consistent with the

broad reading accorded to the statute and our reluctance to impugn

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the district court's regular, justified practices. See Henderson,

476 U.S. at 327-28 (1986) (holding that exclusion tolls the entire

period from the filing of a motion through the hearing on that

motion, regardless of whether the delay is "reasonably necessary")

(emphasis added); United States v. Staula, 80 F.3d 596, 601 (1st

Cir. 1996) (holding that all the time between filing of a motion

and hearing on that motion is excludable, "even if the delay is

overlong, inexplicable, or unreasonable") (emphasis added).

Maxwell contends that overall, the district court "end

[ran] the requirements of the Speedy Trial Act" by "sitting on all

necessary papers concerning the severance motion for more than

seven months and then stating that the court would have scheduled

a hearing on the motion." She argues that the district court

retroactively determined that a hearing was necessary on her motion

to sever and that the court should have made that determination

more promptly, especially when she had repeatedly asked for a

speedy trial (albeit in inquiries to the Magistrate Judge and not

to the district court itself). She also suggests that her

interpretation of the statute would prevent the district court or

the government from "jerry-build[ing] a 'hearing' in order to

thwart the continuous operation of the Speedy Trial Act." Staula,

80 F.3d at 602 n.3 (1st Cir. 1996).

We do not believe that in this case the district court

tried to avoid the mandates of the STA. The court made clear that

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it followed its usual practice in multi-defendant cases of not

deciding any pending motion until the Magistrate Judge had

completed her work on all of the defendants before her. Maxwell I,

247 F. Supp.2d at 14. Maxwell did not challenge or request a

variance from this practice, nor did she request an expedited

ruling on her motion to sever. See id. Once the Magistrate Judge

had issued final status reports as to all three co-defendants, the

district court promptly set a date--November 1, 2002--for a

conference at which a hearing on Maxwell's motion to sever could be

scheduled. See id. The district court expressly stated at that

conference that it intended to hold a hearing on the motion. The

court, however, did not hold the hearing because Maxwell withdrew

the motion shortly after the conference. As we have set out above,

nothing in the STA or federal precedent requires the district court

to make an on-the-record determination that a hearing is necessary

in order for time to be excluded under 18 U.S.C. § 3161 (h)(1)(F).

The court did not "decide that a hearing on [Maxwell's] Motion to

Sever was necessary in order to defeat Maxwell's STA claim."

Maxwell I, 247 F. Supp.2d at 14. "Rather, [the court] had

determined that a hearing was necessary before learning that there

was an STA claim to 'defeat.'" Id.

Thus, we agree with the district court's conclusion that

the period from March 5, 2002 until November 1, 2002, is excludable

under 18 U.S.C. § 3161(h)(1)(F) as Maxwell's motion to sever was

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pending during this period. The district court did not err in

denying Maxwell's motion to dismiss on STA grounds.

B. Sixth Amendment

We review for an abuse of discretion the district court's

denial of a motion to dismiss based on a violation of a defendant's

Sixth Amendment right to a speedy trial. See United States v.

Trueber, 238 F.3d 79, 87 (1st Cir. 2001).

The Supreme Court set out the standard for a Sixth

Amendment speedy trial claim in Barker v. Wingo, 407 U.S. 514

(1972). We must consider: "(1) the length of the delay; (2) the

reasons for the delay; (3) the defendant's assertion of his speedy

trial right; (4) and the prejudice to the defendant caused by the

delay." Id. at 530. None of the four factors is "either a

necessary or sufficient condition to the finding of a deprivation

of the right of speedy trial. Rather, they are related factors and

must be considered together with such other circumstances as may be

relevant." Id. at 533.

The constitutional speedy trial right "attaches upon

arrest or indictment, whichever occurs first." United States v.

Santiago-Becerril, 130 F.3d 11, 21 (1st Cir. 1997). Here,

Maxwell's speedy trial right attached upon the filing of the

indictment, which took place on December 6, 2001. Because the

trial was ultimately scheduled for March 10, 2003, the district

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court determined that the delay amounted to 459 days, or

approximately fifteen months. 247 F. Supp.2d at 29.

In Santiago-Becerril, we stated that "the weight given in

the analysis to the length of the delay depends upon the extent to

which the delay exceeds the bare minimum considered presumptively

prejudicial," which is one year. 130 F.3d at 21-22. In that case,

where the delay, as here, was fifteen months, we found that:

Santiago waited over fifteen months for the commencement
of trial in this case, a case more complicated than "an
ordinary street crime" but less so than "a serious,
complex conspiracy charge." Arguably, therefore, the
period of the delay was long enough to tip the scales
slightly in favor of Santiago's instant claim.

Id. (citation omitted).

Based on the above, the district court here concluded

that Maxwell's case was more complicated than the case in Santiago-

Becerril, which was a car-jacking requiring a five-day trial. 247

F. Supp.2d at 29-30. That is, the instant case involved one count

of conspiracy, fifteen counts of wire fraud, and two counts of mail

fraud, and the judge estimated that trial would take two weeks.

See id. Thus, the court concluded that "the delay . . . either

does not weigh in favor of dismissal or weighs only very slightly

in favor of it." Id. at 30. This delay, the court assumed, was

"presumptively prejudicial" and thus triggered further inquiry.

On the second factor, the district court found that the

government had not acted negligently or in bad faith and that

Maxwell also had not contributed to the delay (except for not

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asking the district court itself for a speedy trial earlier). See

id. Maxwell argues that the government's request to change the

original trial date from February 24, 2003, to March 10, 2003 (due

to another trial in Rhode Island) was unjustified. This delay of

two weeks can hardly be called a "deliberate attempt to delay the

trial in order to hamper the defense." Trueber, 238 F.3d at 88

(internal quotation marks and citations omitted). We agree with

the court's conclusion that the reasons for the delay were due to

neutral factors.

As for the third factor, Maxwell must "give some

indication, prior to [her] assertion of a speedy trial violation,

that [she] wishes to proceed to trial." Id. at 89 (internal

quotation marks and citation omitted). Maxwell maintains that she

consistently had asserted her speedy trial right by objecting to

the joint motions of her co-defendants and the government to

exclude time and by indicating that she was ready for trial.

In agreement with the district court, we find it

significant that Maxwell waited until November 2002 to file an STA

motion. She originally had filed the motion to sever in March 2002

and let the motion sit for several months. Indeed, the only action

Maxwell took regarding the motion prior to November 2002 was to

file a motion for clarification in September 2002, which asked the

magistrate judge to clarify that, as of September, no decision had

yet been made as to whether the motion to sever required a hearing.

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Maxwell could have just as easily asked for a decision on the

motion to sever in September since it had been pending before the

district court for about six months. By asking instead for a

determination whether the question of a required hearing was still

up in the air in September 2002, it is plausible that Maxwell was

more interested in setting up the basis for a speedy trial claim

than in ensuring that she in fact received a speedy trial. As the

district court stated, "The assertion of a defendant's speedy trial

rights should not be a game in which the defendant attempts to

engineer a basis to argue that the STA or the Sixth Amendment has

been violated." 247 F. Supp.2d at 31.

The fourth factor "should be assessed in the light of the

interests of the defendants which the speedy trial right was

designed to protect." Trueber, 238 F.3d at 90 (internal quotation

marks and citation omitted). The Supreme Court has identified

three such interests:

(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.
Of these, the most serious is the last, because the
inability of a defendant adequately to prepare his case
skews the fairness of the entire system.

Barker, 407 U.S. at 532.

The district court noted that Maxwell had been

incarcerated for less than two months and then had spent about ten

months in home detention. See 247 F. Supp.2d at 31-32. We,

however, have held that even fifteen months of pretrial

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incarceration is insufficient, standing alone, to rise to the

constitutional level of prejudice. See Santiago-Becerril, 130 F.3d

at 23. We recognize that "considerable anxiety normally attends

the initiation and pendency of criminal charges." Maxwell II, 247

F. Supp.2d at 32 (citing United States v. Henson, 945 F.2d 430, 438

(1st Cir. 1991)). We, however, agree with the district court that

in the absence of "undue pressures" on the defendant as a result of

the delay, we will not find a violation of the Sixth Amendment.

Id. There were no such "undue pressures" identified in this case.

Finally, the district court concluded that Maxwell had

not shown any damage to her defense as a result of any delay. See

id. On appeal, Maxwell only contends that this sub-factor is

"either neutral or slightly in [her] favor."

No single factor or combination of factors outlined in

Barker definitively establishes that Maxwell's constitutional right

to a speedy trial has been violated. Nor do we find any other

relevant circumstances that militate in favor of Maxwell. Hence,

we hold that the district court did not abuse its discretion in

rejecting her motion to dismiss on Sixth Amendment grounds.

C. "Relevant Conduct"

We review the district court's interpretation and

application of the United States Sentencing Guidelines de novo and

its findings of fact for clear error. See United States v.

Gonzalez-Alvarez, 277 F.3d 73, 77 (1st Cir. 2002).

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 Maxwell claims that the district court erred when it

found that the losses suffered by the May 1999 lenders were

attributable to her as "relevant conduct" under U.S.S.G. § 1B1.3.

She stresses the fact that she was not required by the court to pay

restitution for losses that occurred in May 1999 because of the

"sufficient temporal difference" between those amounts and the

limited offense of conviction (the $500 wire transfer in June

2000). She argues that the court instead focused erroneously on

her culpability without fully considering whether the offense of

conviction was too remote and dissimilar from the loans made in May

1999. We disagree.

For all acts and omissions described in U.S.S.G. §

1B1.3(1)(A) and (B), the government must show that they "were part

of the same course of conduct or common scheme or plan as the

offense of conviction." U.S.S.G. § 1B1.2(2); United States v.

Young, 78 F.3d 758, 763 (1st Cir. 1995). The government showed

that Maxwell's activities were part of an ongoing scheme to help

McIntosh repay the complaining October 1998 investors. She made

numerous and varying false statements to investors both in order to

obtain their money and as excuses for why they had not received the

promised return on their investments. She received the $500 wire

transfer as part of her effort to help McIntosh repay the May 1999

lenders whom she knew had not been repaid. Based on this evidence,

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the district court correctly concluded that the $500 wire transfer

was in furtherance of this larger scheme.

That there was a one-year lag between the defrauding of

the 1999 lenders and the $500 wire transfer does not undermine the

court's conclusion. The Guidelines expressly state that "where the

conduct alleged to be relevant is relatively remote to the offense

of conviction, a stronger showing of similarity or regularity"

makes up for it. U.S.S.G. § 1B1.3, cmt. (n.9(B)). Here, at the

time McIntosh wired the $500 to Maxwell in June 2000, Maxwell knew

that McIntosh used a false name to hide his identity from the

defrauded investors and to hide his financial relationship with

Maxwell. This was all part of Maxwell's continual effort to help

McIntosh obtain money to repay the earlier investors.

Similarly, the court's restitution decision does not

undermine its conclusion on "relevant conduct." The court decided

not to order restitution largely because "[Maxwell] doesn't have a

penny." In addition, the court stated that if it was making a

mistake by not ordering restitution for the full amount of the

fraud (including the "relevant conduct" at issue here), "then the

restitution should be higher, because I have no doubt that they're

part of the same common scheme or plan."

Maxwell further argues that the district court

erroneously relied on materials outside those in the pre-sentencing

report and materials submitted by the parties. She contends that

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the grand jury testimony of Albert Albee (who testified at DeAson's

trial as well), which she submitted with her sentencing memorandum,

supported her position that when she was recruiting the May 1999

lenders, she was only repeating information with which DeAson had

provided her and which she believed to be true. She concludes that

the reason the district court rejected her position was the court's

decision, at DeAson's trial, to discredit Albee's testimony.

First, there is no indication that the district court

considered Albee's prior testimony as part of Maxwell's sentencing.

Second, the evidence produced by the government at Maxwell's

sentencing conflicted with Albee's testimony at sentencing. The

pre-sentencing report itself stated that by the time Maxwell

recruited the 1999 lenders, "a preponderance of the evidence"

suggested that she was aware that the loans were a "scam." In

addition, the government produced seven FBI reports that implicated

Maxwell in the 1999 loans. The court could have easily found that

Albee's testimony presented by Maxwell at her sentencing was

outweighed by the evidence produced by the government, without ever

considering Albee's testimony at DeAson's trial. The court did not

err in sentencing Maxwell based upon both the one count of wire

fraud and the losses from the 1999 investors--the latter

constituted "relevant conduct" for sentencing purposes.

Accordingly, we affirm.

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