Unpublished Disposition, 852 F.2d 573 (9th Cir. 1988)

MEMORANDUM^* 

Dean Joseph Moyer appeals his conviction for conspiracy to manufacture methamphetamine in violation 21 U.S.C. §§ 846 and 841(a) (1). He contends that the district court erred by refusing to grant his motion for continuance after the government filed a superseding indictment the day before trial. The original indictment charged Moyer and his co-defendant John Barocsi with conspiracy to manufacture methamphetamine. The superseding indictment charged that Moyer and Barocsi had conspired with each other "and with others both known and unknown to the grand jury," and added a count (Count 2) of attempting to manufacture methamphetamine. Moyer also contends that there is insufficient evidence to support his conspiracy conviction. We affirm.

We review the decision to deny a requested continuance for an abuse of discretion. See United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978). We review a sufficiency of the evidence challenge by viewing the evidence in the light most favorable to the government and determining whether any rational trier of fact could have found that the defendant committed the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The Speedy Trial Act of 1974, as amended in 1979, 18 U.S.C. §§ 3161-74, establishes inside and outside time limits for commencing trials in criminal cases. Section 3161(c) (2) sets the inside limit. Under this provision, a represented defendant, absent written consent, may be tried no earlier than thirty days from his initial appearance through counsel. See 18 U.S.C. § 3161(c) (2). Moyer contends that section 3161(h) (8), authorizes the district judge to grant a continuance if "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial" and that the district judge should have granted his request for a continuance in light of the superseding indictment. Moyer argues that he needed a continuance in order to investigate "new" conspirators, to research the law of attempt, and to determine whether to alter trial strategy.

Moyer recognizes that he would not necessarily have received a new thirty-day trial preparation period simply because the superseding indictment was filed, see United States v. Rojas-Contreras, 474 U.S. 231, 234 (1985) (rejecting Ninth Circuit interpretation of section 3161(c) (2) that a material alteration to a superseding indictment automatically entitled a defendant to an additional thirty day trial preparation period), but contends that the district court's failure to grant continuance prejudiced him because the superseding indictment materially altered the original indictment and affected trial preparation. See United States v. Adu, 770 F.2d 1511, 1513-14 (9th Cir. 1985) (when original indictment is materially altered in a manner that might affect trial preparation, the defendant is entitled to a continuance), cert. denied, 475 U.S. 1030 (1986); but cf. United States v. Wallace, 800 F.2d 1509, 1511 (9th Cir. 1986) (district court did not violate the Speedy Trial Act when it ordered a defendant to stand trial within thirty days of the filing of a "substantially similar" superseding indictment), cert. denied, 107 S. Ct. 1901 (1987).

To the extent that Moyer claims prejudice because the superseding indictment added the attempt count (Count 2), the argument lacks merit. Rojas-Contreras makes it clear that even if a district judge violates the Speedy Trial Act by failing to grant a requested continuance, a reviewing court need not reverse if the error was harmless. Rojas-Contreras, 474 U.S. at 237. In this case, even if the district court should have granted the continuance to allow Moyer's counsel to research the law concerning attempt, any error was harmless because the attempt count was later dismissed on the government's motion.

The change in the conspiracy count of the superseding indictment--which added the clause "and with others both known and unknown to the grand jury" to the original conspiracy count--was not sufficiently substantial to prejudice Moyer. Moyer was already aware that the government's evidence would include "unidentified" parties, such as Sharon or Brian. The defense had investigated Sharon and should have been alert that he was a possible witness. The additional clause did not affect the presentation of the evidence or the defense's preparation of its case. The district court did not abuse its discretion when it refused the requested continuance.

Moreover, we note that Moyer failed to object specifically to the added clause in the superseding indictment. When Moyer requested a continuance, he did not argue that the alteration of the conspiracy count necessitated reevaluating trial strategy or any additional investigation. See Fed. R. Crim. P. 51.¹  Instead, the transcript shows that Moyer only argued that the additional attempt count necessitated a continuance to allow research of the law of attempt.

As a general rule, Moyer's failure to make a specific objection in the district court and to assert that same ground on appeal constitutes a waiver absent plain error. See, e.g., United States v. O'Brien, 601 F.2d 1067, 1071 (9th Cir. 1979); Wright, Federal Practice & Procedure: Criminal 2d Sec. 843 (discussing Fed. R. Crim. P. 51 and citing cases). Moyer accepts this general rule but argues that under rule 51 a party does not waive an objection when that party lacked an effective opportunity to object based on the trial court's announcement it wants no further argument on the issue. See Wright Sec. 842, at 290 n. 14, citing United States v. United States Gypsum Co., 550 F.2d 115, 129 (3d Cir. 1977), aff'd, 438 U.S. 422 (1978). Moyer then argues that the transcript demonstrates that the trial court's "curt behavior" prevented counsel from "stating in full the basis for the requested continuance." Nothing, however, prevented Moyer from raising these arguments with the district court at a later time, for example, through a motion for new trial.

Moyer argues that there was insufficient evidence to show that he agreed to manufacture methamphetamine during the time period in the indictment. Although the evidence is not overwhelming, Moyer's argument lacks merit.

Viewing the evidence in the light most favorable to the government, any rational trier of fact could have relied on the cumulative nature of the following factors to find an agreement:

(1) Sharon's testimony that he had set up the chloroephedrine and use it in a lab in the vicinity to produce methamphetamine, (2) the taped conversation which included Moyer's reference to the DEA surveillance and the manufacture of methamphetamine, (3) the expert testimony that chloroephedrine is the "direct precursor" to methamphetamine, and (4) Barocsi's conduct upon the DEA's entry to the Ganado residence.

AFFIRMED.