Unpublished Disposition, 914 F.2d 264 (9th Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 264 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Michael Vernon DUTKEL, Defendant-Appellant.

No. 88-5465.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1990.* Decided Sept. 6, 1990.

Before JAMES R. BROWNING, NOONAN and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Michael Dutkel was convicted of conspiring to distribute cocaine in violation of 21 U.S.C. § 846 and possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). On appeal, Dutkel argues (1) he was denied his right to counsel, (2) he was denied his right to a speedy trial, (3) the district court erred in denying his request for a continuance, and (4) the prosecutor improperly vouched for the credibility of a government witness. We affirm.

Dutkel argues he was denied his right to assistance of counsel because no attorney entered an appearance for him or acted on his behalf from May 2, 1988, when he was arraigned on the indictment, until September 6, 1988, when counsel was appointed. In the alternative, he argues the representation he received was ineffective.

Defendant's retained counsel of record, Bernard Minsky, appeared for Dutkel at his arraignment on the complaint and at his detention hearing.

On May 2, 1988, the day set for the arraignment on the indictment, Minsky notified the court he would be late. The court asked codefendant Davidson's attorney, Allen Rubin, to stand in for Minsky, and he did so. On September 6, 1988, the court, on Minsky's motion, relieved Minsky as attorney of record because Dutkel had failed to complete his fee arrangement with Minsky. The court appointed Charles Pereyra-Suarez in Minsky's stead.

The sixth amendment guarantees the assistance of counsel at every "critical" stage of a prosecution. United States v. Wade, 388 U.S. 218, 224 (1967); See also Powell v. Alabama, 287 U.S. 45, 57 (1932). The arraignment is a critical stage. Powell, 287 U.S. at 57. Dutkel was represented at his arraignment by Allen Rubin. Preparation time before trial is likewise a critical stage. Id. So far as the record before the district court disclosed, Dutkel was represented by Bernard Minsky until September 6, 1988, and by Pereyra-Suarez from September 6, 1988 until the trial began on November 1, 1988. Dutkel claims he was in fact unrepresented until September 6, 1988, because he and Minsky failed to conclude a fee arrangement. The court was not responsible for any misunderstanding between Dutkel and Minsky regarding legal fees, and Dutkel did not present this issue to the district court. The court was entitled to act on the record before it, and on that record Minsky represented Dutkel.

Dutkel's alternative claim that Minsky's assistance was ineffective is also without merit. To make out a claim for ineffective assistance of counsel, Dutkel must show not only that his counsel's performance was deficient, but also that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Dutkel suffered no prejudice as a result of Minsky's actions or inaction. Dutkel's new attorney was granted a continuance on September 6, 1988, giving Dutkel and his new counsel adequate time to prepare for trial on November 1, 1988. Any possible ineffective assistance in connection with the continuances granted to Dutkel's codefendants did not create a reasonable probability the outcome of the trial would have been different; the only prejudice claimed by Dutkel is the time he spent in jail, allegedly unrepresented, awaiting trial, but this time will be credited against his sentence.

Dutkel contends continuances granted his codefendant violated Dutkel's right to a speedy trial. Continuances which serve the "ends of justice" by giving counsel time for additional preparation or for continuity of counsel are excludable delays under the Speedy Trial Act. 18 U.S.C. § 3161(h) (8) (B) (iv).

In this case, the court granted a forty-five day continuance for codefendant Sherrod's new attorney, Levine, to prepare for trial, and a second continuance for twenty-eight days to accommodate a conflict in Levine's schedule. Both reasons fall within section 3161(h) (8) (B) (iv). The court set forth the reasons for its "ends of justice" determination as required by 18 U.S.C. § 3161(h) (8) (A). The purpose for the continuances was proper and the seventy-three day delay was reasonable under the facts.

Dutkel argues the delay resulting from the continuances may have served the interests of codefendant Sherrod but was of no benefit to Dutkel. A continuance for one codefendant creates excludable time for all codefendants if the delay is reasonable and no motion of severance has been granted. Id. Sec. 3161(h) (7); see United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984). Dutkel filed no motion for severance; and, as we have said, the delay was not unreasonable.

Dutkel complains that the district court failed to "automatically review" the conditions of release pursuant to 18 U.S.C. § 3164, which provides an automatic review for a person in detention more than ninety days solely because awaiting trial. However, " [t]he periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section." 18 U.S.C. § 3164(b). Section 3164's automatic review provision simply does not apply.

Dutkel argues the district court abused its discretion by denying his motion for a continuance to allow time to review audio tapes of conversations between Dutkel and the government informer, Victoria Machet.

The court and counsel formulated a solution to the tape problem without resorting to a continuance. The trial was recessed after jury selection to give Dutkel and his counsel time to review the tapes. Dutkel consented to this alternative solution. The court did not abuse its discretion in denying the continuance. See Morris v. Slappy, 461 U.S. 1, 12 (1983) (it would have been "remarkable" if the trial court had granted the continuance despite counsel's assurances he was ready for trial).

Dutkel contends the government improperly vouched for the credibility of Victoria Machet, the chief government witness. During closing argument the prosecutor said of Machet:

And even if you did believe that this was her great meal ticket, do you think they [the FBI] would have kept her around very long if they found out she was committing these egregious actions, that she was taking poor, innocent people and beating them basically into committing crimes? Do you think they would have kept her around very long? I sincerely doubt it, ladies and gentlemen.

What it comes down to, basically, is who you believe. On the one side you have Michael Dutkel and on the other side Victoria Machet and the FBI.

Prosecutorial vouching occurs when the prosecution either "(1) 'place [s] the prestige of the government behind the witness' through personal assurances of a witness's veracity, or (2) suggests that 'information not presented to the jury supports the witness's testimony.' " United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)).

Since Dutkel did not object to the government's closing remarks, Dutkel's contention is reviewed for plain error. Id. Plain errors are those that " 'seriously affect the fairness, integrity or public reputation of judicial proceedings,' " requiring reversal to prevent a miscarriage of justice. Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)).

Viewed in the light most damaging to the government, the prosecutor's statement can be interpreted to mean that the FBI would have fired Machet if the FBI knew Machet was entrapping Dutkel, and since Machet was not fired, the jury should infer Machet's testimony that she did not entrap Dutkel was true. Assuming the jury understood the statement in this manner and failed to realize its logical deficiencies, we are satisfied nonetheless that it did not "seriously affect the fairness, integrity or public reputation" of the trial. There was no plain error.

Dutkel's reliance on Roberts is misplaced. The error was not reviewed under the strict plain error standard in Roberts; defense counsel properly and timely objected to the prosecutor's argument. 618 F.2d at 534-35. United States v. Brown, 720 F.2d 1059, 1070-71, 1075 (9th Cir. 1984), is similarly distinguishable. Cf. United States v. Shaw, 829 F.2d 714, 717-18 (9th Cir. 1987).

We are guided instead by cases, like this one, to which the plain error standard applied. In United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980), the prosecutor argued the jury could trust each witness's story because the government had made a significant effort to keep the witnesses separate. We held that although the misconduct was significant, it was insufficient to invoke the plain error doctrine. Id. at 199. Likewise, in United States v. Gwaltney, 790 F.2d 1378, 1385-86 (9th Cir. 1986), the prosecutor stated: " [T]hese men who testified here, ladies and gentlemen, are professionals and they will have to tell the truth." Again, we found that the statement may have been inappropriate, but did not constitute plain error undermining the fundamental fairness of the trial. Id. at 1386.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.