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.
-3-
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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