Unpublished Disposition, 888 F.2d 1394 (9th Cir. 1987)

MEMORANDUM^* 

Wesley William Walter appeals his conviction following a jury trial for conspiracy to import a controlled substance in violation of 21 U.S.C. §§ 963 and 952(a), transportation of stolen aircraft in foreign commerce in violation of 18 U.S.C. §§ 2312 and 2, importation of a controlled substance in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2, and travel in foreign commerce with intent to promote unlawful activity in violation of 18 U.S.C. § 1952. Walter contends his conviction should be reversed for alleged violation of the Speedy Trial Act, 18 U.S.C. §§ 3161-74 (1982 & Supp. IV 1986), and for an allegedly erroneous evidentiary ruling. In addition, Walter appeals the district court's denial of his request that sanctions be imposed upon the government for an alleged Jencks Act violation. We affirm.

The Speedy Trial Act, 18 U.S.C. § 3161-74, provides that a defendant shall be brought to trial within seventy days after indictment or arraignment, whichever occurs later. Id. at Sec. 3161(c) (1). The Act allows the district court to grant a continuance on the request of either side or on its own motion and exclude the resulting delay from the seventy day computation if the court (1) finds "that the ends of justice served by the granting of such continuance outweigh the best interest of the public and the defendant in a speedy trial," and (2) sets forth its reasons for that finding on the record. Id. at Sec. 3161(h) (8) (A). The court may grant an "ends of justice" continuance if the case is so unusual or so complex, due to the number of defendants, the nature of the prosecution, or the existence of novel questions of law or fact, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section. Id. at Sec. 3161(h) (8) (B) (ii).

On June 12, 1986, Walter and thirty-two codefendants were charged with a total of fifty-six counts relating to federal narcotics violations. During status conferences in July and August of 1986, the court stated that it would exclude time under the Speedy Trial Act because of the complexity of the case. No specific periods of time were mentioned. Neither party objected. On November 12, 1986, the court decided pending motions and severed certain counts and defendants, setting dates for three separate trials. Simultaneously, the court filed a notice excluding time from June 12, 1986, to and including November 10, 1986, under the Speedy Trial Act based upon motions pending during that period.

In February of 1987 the court set an April trial date for Walter on certain remaining counts of the indictment. Walter filed a motion to dismiss for violation of the Speedy Trial Act, contending that time began to run under the Act on November 11 because the case was no longer complex after the November 12 order of partial severance. The court denied the motion to dismiss on the ground that it was untimely. On reconsideration, the court filed on December 2, 1987, a memorandum decision denying the motion to dismiss, stating that at the July and August status conferences " [t]he Court announced its intention to file a general order excluding all time until the commencement of the final trial of any of the defendants named or any of the counts charged in the indictment."

We review for clear error the trial court's factual finding of complexity under section 3161(h) (8) (A). United States v. Frey, 735 F.2d 350, 352 (9th Cir. 1984). Factual findings must be "set forth with particularity." United States v. Perez-Reveles, 715 F.2d 1348, 1352 (9th Cir. 1983) (quoting H.R.Rep. No. 1508, 93rd Cong., 2d Sess.), reprinted in 1974 U.S.Code Cong. & Ad.News 7401, 7426. "The 'ends of justice' exclusion was not ... meant to be a general exclusion for every delay no matter what its source, but was to be based on specific underlying factual circumstances." United States v. Pollock, 726 F.2d 1456, 1461 (9th Cir. 1984).¹ 

In its memorandum of decision, the district court stated that the indictment charged thirty-three codefendants with fifty-six counts relating to federal narcotics violations. The counts are unrelated to each other except that some of the defendants are charged with criminal activity in more than one separate criminal episode, and each of the episodes is separate and not related to the others, except that a single defendant has allegedly participated in more than one episode of criminal activity. Each separate episode of criminal activity gives rise to several counts in the indictment. The district court also stated that seven defendants and a total of thirty-five counts remained to be tried at the time of Walter's trial. Under the circumstances described, we cannot find clearly erroneous the trial court's conclusion that the case was complex under section 3161(h) (8) (B) (ii). See United States v. Bryant, 726 F.2d 510, 511-12 (9th Cir. 1984) (complexity under Act when 135 motions had been filed that may have affected each defendant and the case involved twenty-four defendants). Cf. Perez-Reveles, 715 F.2d at 1352-53 & n. 5 (record insufficient to support complexity when a single defendant, charged with a common narcotics violation, and case took only two days to try).

Walter also contends that the court's December 1987 memorandum of decision does not satisfy the section 3161(h) (8) (A) requirement of a record of findings because it was a nunc pro tunc finding entered after the seventy day period of the Act had run. However, a court granting an "ends of justice" continuance is not required to contemporaneously set down the factual predicate for its determination. Bryant, 726 F.2d at 511. Simultaneous findings are unnecessary so long as the trial court later shows that the delay was motivated by proper considerations. Id. Here, the trial judge made explicit references to complexity as the basis for an exclusion of time under the Act at the July and August status conferences. Compare Perez-Reveles, 715 F.2d at 1352 (in response to request for continuance, judge merely stated, " [v]ery well then"). The statements were made prospectively, well within the seventy day period of the Act. Compare id. (in denying motion to dismiss under the Act, judge made retroactive exclusion of time under the Act). We conclude that under these circumstances, the court satisfied the requirement of section 3161(h) (8) (A).

II. Sanctions for Alleged Jencks Act Violation

We review denial of a motion for sanctions for violation of the Jencks Act for abuse of discretion. United States v. Moody, 778 F.2d 1380, 1383 (9th Cir. 1985).

Walter moved during trial to have the government sanctioned due to the failure of Agent Sherrington to record or otherwise memorialize certain pre-trial conversations between himself and a government witness. Such materials, if in proper form, would have been discoverable under 18 U.S.C. § 3500 (the Jencks Act). However, in United States v. Bernard, 625 F.2d 854 (9th Cir. 1980), we stated that there is "no statutory basis for compelling the creation of Jencks Act material.... The purpose of the Act was to make any existing prior statements made by a government witness equally available to the defense and the prosecution." Id. at 859 (emphasis in original) (citation omitted). Accordingly, the district court did not abuse its discretion in failing to impose sanctions.

We review a court's decision to admit evidence for abuse of discretion. United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980), cert. denied, 454 U.S. 844 (1981).

During the course of trial, the prosecution introduced into evidence copies from microfilm of records of Walter's long distance telephone calls to his alleged coconspirators during the time period alleged in the indictment. Unindicted coconspirator Harris testified that the importation scheme was frequently discussed with the defendant over the telephone. Evidence was presented establishing that the telephone records at issue were for the telephone subscribed to by Walter and located at his residence. The records reflected calls from Walter's residence to telephones connected to his coconspirators. This evidence of contact and association tends to prove circumstantially the agreement that is an element of the conspiracy charged and is therefore relevant. See United States v. Disla, 805 F.2d 1340, 1352 (9th Cir. 1986) (calls from floor of jail where defendant was being held to homes of coconspirators was circumstantial evidence of conspiracy). Direct proof of the identity of a caller need not be presented for a court to find that an adequate foundation for the admission of telephone records has been established. United States v. Bonilla, 615 F.2d 1262, 1264-65 (9th Cir. 1980).

The form of the telephone records did not violate the best evidence rule. Federal Rule of Evidence 1003 provides that a duplicate may be used in lieu of an original unless a genuine question is raised as to the authenticity of the original. According to the Advisory Committee's Note regarding Federal Rule of Evidence 1001, prints from microfilm records are admissible as duplicates under the best evidence rule.

AFFIRMED.