Unpublished Disposition, 875 F.2d 319 (9th Cir. 1988)

MEMORANDUM^** 

Frank L. Merriweather appeals his conviction, following a jury trial, for conspiracy to counterfeit United States currency, possession of counterfeit currency, and the making and possession of plates from which counterfeit currency could be printed. Merriweather contends that his conviction was not supported by the evidence.

The judgment is affirmed. The cumulative circumstantial evidence presented by the government was sufficient to support Merriweather's conviction for conspiracy. See United States v. Penagos, 823 F.2d 346, 348 & n. 1 (9th Cir. 1987). Because there was sufficient evidence to convict Merriweather of conspiracy, he was vicariously liable for the substantive acts of his co-conspirators. See United States v. Saavedra, 684 F.2d 1293, 1300 (9th Cir. 1982). Thus, there was sufficient evidence to convict Merriweather of the three underlying substantive counterfeiting offenses, irrespective of his own participation in those acts.

However, sanctions of $500.00 are hereby imposed on government counsel pursuant to Fed. R. App. P. 46(c). Government counsel's lack of diligence in filing the answering brief has delayed the processes of justice. See Matter of Hanson, 572 F.2d 192, 193 (9th Cir. 1977).

This court has imposed sanctions under Rule 46(c) where the counsel of record is aware of a deadline and his obligation to meet it, and yet fails to do so. See Matter of Withey, 537 F.2d 324, 326 (9th Cir. 1976) (sanctions imposed for delay in filing an opening brief where six extensions of time were granted, and brief had not yet been filed over seven months after the final deadline). Where counsel has inordinately delayed the appellate process, this court has found civil penalties and suspension or disbarment to be appropriate sanctions. See In re Margolin, 518 F.2d 551 (9th Cir. 1975) (sanctions of $500 and an indefinite suspension imposed where nine months after filing the notice, no action had been taken to prosecute the appeal); Hanson, 572 F.2d at 193 (sanctions of $500 and a 21-day suspension warranted by counsel's failure to file the record on appeal or an opening brief by the dates required, and failure to seek extensions of time to do so).

Here, Merriweather filed his opening brief on September 22, 1987. The government's brief was originally due on October 19, 1987. On that date, the government moved for an extension of time until November 9, 1987. This motion was granted. On November 10, 1987, the government made a second motion for an extension of time to file its brief until November 23, 1987. This motion was also granted, but the order explicitly stated that no further extensions would be granted absent extraordinary delay.¹  The government made no further motions for an extension of time, and did not file its brief until April 4, 1988, over four months after the final due date. Merriweather has been incarcerated throughout this time.

On April 18, 1988, this court ordered the government to show cause why it should not be sanctioned under Rule 46(c) for filing its answering brief late. Assistant United States Attorney Jon C. Cederberg responded to the show cause order. His response states that the brief was filed late due to his last-minute involvement in a long and complex trial, and because it "was not possible under the circumstances to postpone or delegate many of [his] preexisting work assignments." Apparently, another Assistant United States Attorney was appointed to the California Superior Court in late 1987. Cederberg volunteered to replace that attorney as prosecutor in a fraud case which was to go to trial on January 5, 1988. The case involved three co-defendants, a 57-count indictment, and resulted in a nine-week trial. Cederberg's motions for an extension of time made no mention of this case. No hearing on the issue of sanctions has been requested.

Although the four-month delay in the instant case is not as egregious as that in Withey, 537 F.2d at 325 (seven months) or Margolin, 518 F.2d 551 (nine months), Cederberg was clearly aware of the November 23 deadline and of his obligation to meet it. The time-consuming nature of a fraud trial to which he was assigned after the original due date for the brief does not obviate his obligation to this court. Finally, had Merriweather been successful in this appeal, this court's reversal of his conviction for insufficient evidence would have required the entry of judgment of acquittal. See United States v. Burks, 437 U.S. 1, 17-18 (1978). Thus, Merriweather would have been incarcerated four months longer than necessary solely due to Cederberg's lack of diligence.

AFFIRMED, WITH SANCTIONS IMPOSED ON GOVERNMENT COUNSEL.