Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1988)

MEMORANDUM^* 

In case number 88-3277, Robert Willis ("Willis") appeals his conviction, following a jury trial, of two counts of conspiracy in violation of 18 U.S.C. § 371, one count of theft from interstate commerce in violation of 18 U.S.C. § 659, one count of transporting in interstate commerce stolen goods valued in excess of $5,000.00 in violation of 18 U.S.C. § 2314, and one count of transporting in interstate commerce a stolen motor vehicle in violation of 18 U.S.C. § 2312. Willis contends that the district court erred in excluding a member of Willis' racial group from the jury, failing to sentence Willis under the Sentencing Reform Act of 1984, and failing to properly instruct the jury on withdrawal from a conspiracy.

In case number 88-3313, Arvey Haws Lyons ("Lyons") appeals his conviction, following a jury trial with co-defendant Willis, of four of the five counts recited above, being acquitted of one count of conspiracy. Lyons contends that the district court erred in denying Lyons' motion for a continuance, in admitting the terms of Ennest Evans' ("Evans") plea agreement relating to a polygraph examination, in admitting evidence of another criminal act committed by Lyons, and in failing to properly instruct the jury on withdrawal from a conspiracy.

The district court had jurisdiction pursuant to 18 U.S.C. 3231. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291, and we affirm.

Willis contends that the district judge committed three errors in the course of his trial. We disagree.

Willis first argues that the prosecution purposefully discriminated against him by excluding members of his racial group from the jury, in violation of the equal protection component of the fifth amendment due process clause. He bases this argument on Batson v. Kentucky, 476 U.S. 79 (1986) and the following facts. Willis is black. During the jury selection process a potential black juror, Sharon Wommack, was excluded by the prosecution by the use of a peremptory challenge. A second black venireman, Mr. Howard, sat as a juror for this trial, though the government had four peremptory challenges left that it did not use.

Whether the defendant established a prima facie case of purposeful discrimination is reviewable de novo. United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc) cert. denied, 469 U.S. 824 (1984). To establish a prima facie case of purposeful discrimination by the prosecution in jury selection, the defendant must show that (1) he is a member of a cognizable racial group; (2) the group's members have been excluded from the defendant's jury; and (3) these facts and any other relevant circumstances raise an inference the exclusion was based on race. Batson, 476 U.S. at 96 (prima facie case established where all four black persons on the venire were excluded); United States v. Alcantar, 832 F.2d 1175, 1179 (9th Cir. 1987) (prima facie case established where all Hispanic jurors--two from the petit jury and one from the group of alternatives--were excluded).

In the case at bar, the mere striking of one of two black jurors does not raise the necessary inference of purposeful discrimination. See Batson, 476 U.S. at 97 ("a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination"); United States v. Lewis, 837 F.2d 415 (9th Cir.) cert. denied, 109 S. Ct. 304 (1988) (no prima facie case of purposeful discrimination established where the prosecutor exercised one of her nine peremptory challenge to remove one of two black members of the jury panel in a case against a black defendant, where the remaining black member of the panel sat on the jury).

Willis argues that the district court erred in failing to apply the Sentencing Guidelines in his case, since he was sentenced after November 1 1987 (the effective date of the 1984 Sentencing Reform Act, see Pub. L. 98-473, 98 Stat. 2031 (1984)). Whether Willis should have been sentenced under the Sentencing Reform Act of 1984 is a question of statutory construction that we review de novo. United States v. McConney, 728 F.2d at 1201. Willis cites no case law to support his theory, and in fact The Act itself and Ninth circuit case law interpreting the Act clearly establish the opposite result.

The Sentencing Reform Act of 1984 became effective on November 1, 1987. Pub. L. 98-473, 98 Stat. 2030-31, Sec. 235(b) (1) (1984). The Sentencing Act of 1987, which amended the 1984 Act, provides that the sentencing guidelines developed by the Sentencing Commission "shall apply only to offenses committed after the taking effect of [the Sentencing Reform Act]." Pub. L. 100-182, Sec. 2(a), 101 Stat. 1266 (1987); United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987) (emphasis added). This reasoning has been reaffirmed in a subsequent line of Ninth Circuit opinions. See e.g., United States v. Minor, 846 F.2d 1184, 1188 n. 4 (9th Cir. 1988); United States v. Meyers, 847 F.2d 1408, 1415-16 (9th Cir. 1988); United States v. Sanclemente-Bejarano, 861 F.2d 206, 210 (9th Cir. 1988). Since the conduct for which Willis was sentenced occurred before November of 1987, Willis was properly sentenced under pre-Guideline law.

Willis and Lyons contend that the district court erred in failing to give the Ninth Circuit Model Jury Instruction 5.02 on withdrawal from a conspiracy. The government responds that this instruction was given as agreed, both orally and in written form. Although there was no verbatim transcript made of the judge reading the instructions to the jury, there is overwhelming circumstantial evidence that the withdrawal instruction was among those read and given to the jury. Furthermore, since neither Lyons nor Willis timely objected to the alleged failure to give the withdrawal instruction to the jury, they are precluded from raising this issue on appeal unless they show plain error. White v. United States, 394 F.2d 49, 55 (9th Cir. 1968).

There was no plain error mandating a reversal in this case because the withdrawal theory is inapplicable. A conspiracy is complete as soon as some overt act is taken to achieve the objective of the agreement. United States v. Luttrell, 889 F.2d 806, 810 (9th Cir. 1989). Here, by Lyons' own admission, he and Willis did not "withdraw" until after they had driven to Tacoma, the Trans-Air warehouse had been checked out, the target trailer identified, and two tractors stolen from Best Company. Given these numerous overt acts, it was too late for either defendant to withdraw.

Lyons contends that four errors were committed during his trial. His argument regarding the withdrawal instruction was rejected by us above.

Lyons next argues that the district court abused its discretion by denying his motion for a continuance, thereby violating 18 U.S.C. § 3161(c) (2) by allowing less than 30 days of preparation for trial, and violating his sixth amendment right to counsel of his choice.

Our standard of review in Speedy Trial Act appeals is clear error in the district court's factual findings and de novo review of questions of correct legal standards. United States v. Henderson, 746 F.2d 619, 622 (9th Cir. 1984), aff'd, 476 U.S. 321 (1986). The Speedy Trial Act does not require a showing of prejudice to the defendant if the time limits provided by the statute are violated; the remedy is to grant a new trial. United States v. Adu, 770 F.2d 1511, 1514 (9th Cir. 1985), cert. denied, 475 U.S. 1030 (1986).

Lyons argues that the Act was violated in his case because his attorney, Mr. Quaintance, had only 14 days to prepare for trial (appointed August 10, 1988 for trial that began August 24, 1988). Lyons acknowledges that he was advised at the July 22 hearing in front of Judge Tanner that his failure to accept court appointed counsel was a waiver of counsel and that Lyons was deemed to be proceeding pro se. However, he argues that even given that the 30 day period began to run on July 22, he did not receive his 30 days of preparation time because he had no access to law book until July 27, 1988. See Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985). He concludes that since he was clearly not going to receive his constitutionally mandated 30-day access to books, he had no choice but to ask for a court-appointed attorney. His attorney should then have gotten 30 days to prepare.

This argument does not persuade us. The district court gave Lyons more than sufficient time to obtain a private attorney (from January 7, 1988, when Lyons first found out about the charge, until July 22, 1988, when the court held that Lyons had waived counsel) and made repeated attempts to provide Lyons with court-appointed counsel (Magistrate Burgess offered counsel on June 3 and June 10, 1988; Judge Tanner offered counsel on June 21 and July 22, 1988). A defendant's failure to hire an attorney or request a court appointed attorney despite repeated urgings by the court constitutes a knowing and intelligent waiver of counsel. Carnley v. Cochran, 369 U.S. 506, 516 (1962). Thus the court properly found on July 22 that Lyons had waived counsel and was to appear pro se on August 22, 1988 for trial. This unequivocally began the 30-day clock.

Lyons had more than 30 days from his waiver of counsel on July 22, 1988 to his trial on August 24, 1988. He had access to law books for what would have been 28 days, had he gone ahead with his self-representation. The Milton case does not help Lyons. In that case, we expressly declined to hold that the state had an affirmative duty to provide a library for a defendant who has rejected the assistance of counsel for trial. Milton, 767 F.2d at 1446. In any case, Lyons had access to current law books in prison and had over eight months to prepare for his trial.

Lyons change of heart and decision to forego self-representation and accept court-appointed counsel does not entitle him to extra time to prepare for his trial. Any other rule would allow the defendant to keep extending his time by changing from pro se to a private attorney, firing that attorney and hiring another one, changing back to pro se, etc.

Lyons next contends that the district court's denial of his request for a continuance deprived him his sixth amendment right to have the assistance of counsel of his choice. Powell v. Alabama, 287 U.S. 45, 53 (1932). His counsel of choice was Mr. Anthony Savage ("Savage"). Lyons argues that a complex chain of events prevented him from retaining Savage, and that this could have been remedied by granting a continuance.

Though generally we review a decision to grant or deny a continuance for an abuse of discretion, when a defendant's sixth amendment right to counsel is implicated we must balance several factors to determine if the denial was fair and reasonable. These factors include: whether the continuance would inconvenience the witnesses, court, counsel and parties; whether other continuances have been granted; whether legitimate reasons exist for the delay; whether the delay is the defendant's fault; and whether a denial of the continuance would prejudice the defendant. United States v. Studley, 783 F.2d 934, 993 (9th Cir. 1986). Where a defendant's conduct is dilatory and hinders the efficient administration of justice, a court may deny a continuance even if it results in the defendant being unrepresented at trial. United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979).

In the instant case, the denial was proper. The continuance would have caused great inconvenience. Eleven witnesses traveled to Washington from out of state, Willis was to remain incarcerated until the joint trial, Mr. Bartlett, the prosecuting United States Attorney, had a full trial schedule, and the court had a backlog of cases pending. See Leavitt, 608 F.2d at 1293-94. Lyons had been granted many continuances in order to obtain counsel (trial was first set at June 20, 1988 by the magistrate at Lyons' arraignment, it was continued for the first time on June 20th until July 11, it was continued a second time until July 22, it was continued a third time until August 22, and it was continued a fourth time until August 24). See Studley, 783 F.2d at 938-40.

As to the third factor, Lyons has shown no legitimate reason for the continuance aside from his general desire to have more time to prepare. He has shown no defense witnesses whom he would have called, no defense documents, and no legal theories to research. As to the fourth factor, it does appear that the delay was Lyons' fault. Lyons had known he needed to hire an attorney since January 7, 1988 (the day he was arrested and the indictment unsealed). He first met with Savage on May 23, 1988, and thus had over three months in which to retain him. See United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987). As to the final factor, Lyons has identified no specific prejudice he suffered as a result of Judge Tanner's refusal to grant another continuance.

Lyons argues that the district court's admission of Evans' plea agreement into evidence constituted reversible error, citing United States v. Brown, 720 F.2d 1059, 1072 (9th Cir. 1983). We review a district court's decision regarding the admissibility of polygraph evidence for an abuse of discretion. United States v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988).

In the instant case, the admission of the plea agreement was not reversible error. References to requirements of truthfulness in plea bargains do not constitute vouching when the references are responses to attacks on the witness's credibility because of his plea bargain. United States v. Wallace, 848 F.2d 1464, 1474 (9th Cir. 1988). Additionally, Judge Tanner gave a limiting instructions to lessen the impact of this evidence, warning the jury that they should consider the testimony of an accomplice like Evans with greater caution than that of an ordinary witness.

However, Lyons is correct that the Ninth Circuit "has consistently expressed an inhospitable view towards the admission of unstipulated polygraph evidence." Brown, 783 F.2d at 1394. However, even if the admission of the plea agreement was improper, this error did not materially affect the outcome of the trial and therefore does not warrant reversal. The government mentioned the polygraph clause only once in connection with Evans. Mr. Bartlett did not mention any such clause in McCord's plea agreement when he testified against the appellants. Moreover, the government's case was supported by physical evidence and most importantly by Lyons' own testimony.

Judge Tanner admitted testimony as to Lyons involvement in subsequent similar criminal acts, after finding that the probative value outweighed the prejudicial effect. At the close of this evidence, Judge Tanner gave the jury a limiting instruction. He gave the jury a second limiting instruction at the close of the trial. We review the district court's decision to permit the government to introduce evidence of Lyons' other crimes pursuant to Fed.R.Evid. 404(b) for an abuse of discretion. United States v. Hodges, 770 F.2d 1475, 1478 (9th Cir. 1985). We also review the district judge's balancing of the probative value of such evidence against its prejudicial harm under Fed.R.Evid. 403 for an abuse of discretion. United States v. Jenkins, 785 F.2d 1387, 1396 (9th Cir. 1986).

The admission of this evidence was not an abuse of discretion in this case. Evidence of other criminal acts is admissible pursuant to Rule 404(b) if (1) proof that the defendant committed the other acts is clear and convincing; (2) the conduct is not too remote in time from the commission of the crime charged; (3) the conduct is similar to the offense charged; and (4) the conduct is introduced to prove an element of the charged offense that is material in the case. United States v. Bailleaux, 685 F.2d 1105, 1110 (9th Cir. 1982). The prosecution proved that Lyons committed the crime at issue in a clear and convincing manner. The second crime occurred only four months after the charges at issue here. The conduct--stealing a trailer full of electronic goods in order to fence them--is very similar in both cases. Finally, the evidence was introduced to show Lyons' motive for going to Seattle, his plan of stealing a trailer, his knowledge that is what his cohorts were going to do, and his identity as a participant in the scheme.

Lyons argues that intent and plan were not at issue, because he admitted them and his attorney was willing to stipulate to them. These arguments fail. Lyons did not admit his intent until he choose to take the stand, after this testimony had already been given. The record also reflects that Mr. Quaintance was not willing to stipulate this to the jury at the time this evidence was presented.

For the foregoing reasons, both convictions are AFFIRMED.