Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1988)

MEMORANDUM^* 

The court determines that the government's evidence presented at trial was sufficient to convict Knowles of the charged offenses. In reviewing a sufficiency of evidence claim, we view the evidence and all inferences reasonably drawn therefrom in the light most favorable to the government. United States v. Ramirez, 710 F.2d 535, 545 (9th Cir. 1983). We conclude that the government's evidence enabled a rational trier of fact to find all essential elements of the crimes charged beyond a reasonable doubt. United States v. Buras, 633 F.2d 1356, 1359 (9th Cir. 1980). The detail and corroboration of Virgil McDorman's testimony ensured that it was not "incredible or unsubstantial on its face." United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958 (1987).

Knowles' due process and speedy trial contentions are without merit. His due process argument is based on his January 12, 1984, arrest for violating his parole in connection with an earlier conviction in Utah. While Knowles was in custody, he was indicted for the crimes allegedly committed in the present case. The question of whether Knowles was properly arrested for violating his parole from an earlier conviction has no relevance to the defendant's due process rights in the present case. We therefore reject Knowles' due process claim.

Under the Speedy Trial Act, " [f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal." 18 U.S.C. § 3162(a) (2); see United States v. Stone, 813 F.2d 1536, 1538 (9th Cir.), cert. denied, 108 S. Ct. 125 (1987). Our review of the record reveals that Knowles did not move for dismissal under the Act prior to trial. Because Knowles did not comply with the statutory requirements, he waived his Speedy Trial Act claim. Assuming, however, that Knowles preserved his rights under the Speedy Trial Act, we determine that no more than 70 days of nonexcludable time elapsed between Knowles' indictment and trial. See 18 U.S.C. § 3161(c) (1).

Furthermore, Knowles' right to a speedy trial under the sixth amendment was not violated by the post-indictment delay in the present case. The grand jury first indicted Knowles on June 28, 1984. At this time, he was in custody for violating his parole on a previous conviction. The grand jury returned a superseding indictment on March 21, 1985, and Knowles' trial began on May 13, 1985. In considering a sixth amendment claim, this court must weigh four factors: the length of the delay between accusation and trial, the reason for the delay, the timeliness and manner of Knowles' assertion of his right to a speedy trial, and the prejudice to him caused by the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); see United States v. MacDonald, 435 U.S. 850, 858-59 (1978).

Assuming that the post-indictment delay in this case was sufficient to trigger inquiry into the remaining Barker factors, see United States v. Simmons, 536 F.2d 827, 830-31 (9th Cir.), cert. denied, 429 U.S. 854 (1976), Knowles has failed to show that he has suffered prejudice from the delay. This factor weighs most heavily in our evaluation of his claim. At the time of his indictment, he was in custody for violating his parole on a previous conviction in which he was sentenced to eight years of imprisonment. There is therefore no indication that Knowles suffered "oppressive pretrial incarceration" because of a delay in the present case. Barker, 407 U.S. at 532. More importantly, Knowles has not demonstrated that the delay impaired his ability to prepare a defense. Id.; United States v. Valentine, 783 F.2d 1413, 1417-18 (9th Cir. 1986); United States v. Williams, 782 F.2d 1462, 1466 (9th Cir. 1985). We therefore hold that Knowles' constitutional right to a speedy trial has not been violated.

Finally, Susan Ewy's failure to testify at trial did not deprive Knowles of his sixth amendment right to "compulsory process for obtaining witnesses in his favor." U.S. Const. amend. 6. The mere absence of a witness' testimony at trial does not violate the defendant's right to compulsory process. See Washington v. Texas, 388 U.S. 14, 16 (1967). Rather, the accused "must at least make some plausible showing of how [the absent witness'] testimony would have been both material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).

Here, the district court did not exclude Ewy's testimony because of an evidentiary ruling or a discovery sanction. See Washington, 388 U.S. at 16-17; Taylor v. Illinois, --- U.S. ---- (56 U.S.L.W. 4118, Jan. 25, 1988). Rather, Knowles did not obtain the benefit of Ewy's testimony because she did not understand that the marshal was serving her with a subpoena. Govt. ER at 45. The government's attorney directed the marshal to serve this subpoena when he realized that Knowles sought to compel Ewy's presence at trial.

Although Knowles did object at trial to Ewy's absence, he did not move for a continuance. Nor did he make an offer of proof detailing the substance of Ewy's testimony. Knowles merely stated, "Well, my whole defense, your Honor, is that Mr. Holmes and Mrs. Ping and Mrs. [Ewy] are the ones that set up this scam." TT, May 21, 1985, 8:30 am volume, at 114-15. Without more, this statement does not provide a plausible showing of how Ewy's testimony would have been both material and favorable to Knowles' defense.

The evidence at trial demonstrated only that Ewy acted as a real estate agent for Larry Holmes, the buyer of the Rittoff property. At no time did Knowles present any evidence indicating that Ewy was involved in the Rittoff fraudulent land scheme. Furthermore, Knowles did not raise or develop this theory of defense during his cross-examination of Holmes. We therefore conclude that Ewy's absence did not deprive Knowles of "testimony [that] would have been relevant and material, and ... vital to the defense." Washington, 388 U.S. at 16 (emphasis added); see Valenzuela-Bernal, 458 U.S. at 867.

We have carefully considered each of the additional subarguments presented by Knowles in his brief, and conclude that they are without merit.

We will affirm the district court's judgment of conviction.

AFFIRMED.