Unpublished Disposition, 909 F.2d 1490 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 909 F.2d 1490 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Nancy E. WATERMAN, aka Garcia, Defendant-Appellant.

No. 89-30266.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 1990.Decided July 27, 1990.

Before GOODWIN, Chief Judge, and FLETCHER and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Nancy Waterman ("Waterman") appeals her conviction, after a jury trial, for bank robbery in violation of 18 U.S.C. § 2113(a). Waterman charges that the district court violated the Speedy Trial Act, allowed for inadequate voir dire of the jury, and improperly instructed the jury. We affirm.

BACKGROUND FACTS

On December 29, 1988, Waterman robbed the United States National Bank of Oregon, Hollywood Branch. She was arrested the following day. On January 19, 1989, Waterman was indicted for unarmed bank robbery pursuant to 18 U.S.C. § 2113(a). On January 26, 1989, she was arraigned and entered a plea of not guilty.

On February 1, 1989, Waterman filed a pre-trial discovery motion. The motion stated that "it is expected that excludable delay may occur ... as a result of this motion." On February 17, 1989, the government followed with its own discovery motion seeking information relating to any alibi defense. On February 28, 1989, the government also filed a motion in limine. No formal order denying these motions was ever filed.

On April 6, 1989, Waterman filed a motion to dismiss and alleged a violation of the Speedy Trial Act. The district court held a hearing on the motion on April 12, 1989 and then submitted the matter. No formal order denying this motion was ever filed.

Waterman was tried on April 25 and 26, 1989, and found guilty. On May 4, 1989, Waterman filed a motion for a new trial and alleged that the jury instructions were erroneous and that the voir dire was inadequate. The court denied the motion at sentencing. Waterman was subsequently sentenced to 57 months imprisonment on August 23, 1989.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court's findings of fact regarding the Speedy Trial Act for clear error, and its conclusions of law de novo. United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir. 1989). We review for abuse of discretion the sufficiency of the voir dire examination, see United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir. 1979), and the court's formulation of the jury instructions. Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988). In reviewing jury instructions to which timely objections have been made, we examine "whether, viewing the jury instructions as a whole, the trial judge gave adequate instructions on each element of the case to ensure that the jury fully understood the issues." Los Angeles Memorial Coliseum Comm'n v. National Football League, 726 F.2d 1381, 1398 (9th Cir.), cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

DISCUSSION

Waterman contends that the government and the court violated the Speedy Trial Act by failing to hold a trial within seventy days of the issuance of the Indictment. Under the Speedy Trial Act, failure to hold a trial within seventy days results in the dismissal of the Indictment. See 18 U.S.C. § 3161(c) (1).

The Indictment was returned on January 19, 1989. The clock began running on January 20. See United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir. 1989). Seventy-seven days expired between January 20 and April 6, the date that the motion to dismiss was filed. The government nevertheless contends that there was no violation of the Speedy Trial Act because there were more than seven days of excludable delay during that time period.

The exclusion of certain periods from the Speedy Trial Act computation is provided for by 18 U.S.C. § 3161(h) (1) (F) and (J). The "period of delay" caused by a pretrial motion is excludable pursuant to subsection (F). Waterman contends that her pre-trial discovery motion should not result in excludable delay time, because the government readily and voluntarily complied with her motion without intervention by the court. She claims that we should look to the facts surrounding the motion to determine if the motion was truly "under advisement" during that thirty day time period.

We considered and rejected a similar argument in United States v. Aviles-Alvarez, 868 F.2d 1108, 1112 (9th Cir. 1989). In that case, the defendant argued that the time during the pendency of the pre-trial discovery motions was not excludable because the court had not made a ruling that it was. We held that " [t]he district court does not have to make findings or consider any factors. The delay due to a pretrial motion does not even have to be 'reasonably necessary' to be excluded." Id. See also United States v. Morales, 875 F.2d 775, 777 (9th Cir. 1989) (" [w]e find it highly improbable that Congress intended courts to evaluate the merits of a motion in order to determine whether delay from that motion is excludable under the Speedy Trial Act"). We suggested in Aviles-Alvarez, 868 F.2d at 1113, that the defendant could have withdrawn his motion or "ask [ed] the district court for a cutoff date within which the government was required to produce the requested documents" if he wanted a specific limit on the pendency of the motions. Since the defendant did not do so, we found that the time was excluded.

Likewise, in this case Waterman could have withdrawn her motion when the government complied with it, or could have set a limit on the time in which the government could comply. She did neither. In fact, she expressly stated that she expected her motion to result in excludable delay. Moreover, she never raised the issue or requested a ruling prior to the hearing on the motion to dismiss. Thus, the fact that the trial court never made an explicit finding of excusable delay was insufficient to create a violation of the Speedy Trial Act.1 

Waterman contends that the court conducted a summary voir dire which failed to provide her with sufficient information with which to exercise her peremptory challenges. She claims that the court's questions failed to reveal even the most superficial bias on the part of the possible jury members, and, therefore, that she is entitled to a new trial. See United States v. Baldwin, 607 F.2d 1295, 1298 (9th Cir. 1979).

The record reveals that Waterman submitted several proposed voir dire questions and requested individual voir dire. Contrary to Waterman's contentions, the court asked most of Waterman's suggested questions. Specifically, the court inquired into whether the jurors knew counsel or witnesses, where they lived, where they worked and what position they held, what their particular family situations were, whether they had ever served on a jury before and if so what the case they heard concerned, whether they had any connection to the Hollywood Branch bank, and whether they thought they could be fair.

Waterman specifically complains about the court's failure to inquire into whether jurors would be unduly influenced by law enforcement officers' testimony. In Baldwin, 607 F.2d at 1298, we held that:

the refusal to ask the question of whether the prospective jurors would be unduly influenced by the testimony of a law enforcement officer does not always constitute reversible error; that question hinges upon such factors as the importance of the government agent's testimony to the case as a whole; the extent to which the question concerning the venireperson's attitude toward government agents is covered in other questions on voir dire and on the charge to the jury; the extent to which the credibility of the government agent-witness is put into issue; and the extent to which the testimony of the government agent is corroborated by non-agent witnesses.

In that case, we found that the district court's failure to inquire whether the venire members would be unduly prejudiced coupled with the court's failure to ask whether the jurors were related to any of the prospective witnesses left parties with inadequate information from which to make informed peremptory challenges. In this case, the key witness was a teller, not a government officer. Also, the government's witnesses' testimony did not contradict Waterman's testimony.

In addition, the court allowed counsel for each side ten minutes to voir dire the jury. Cf. United States v. Contreras-Castro, 825 F.2d 185, 187 (9th Cir. 1987) (court found failure to ask venire members whether they would favor the testimony of law enforcement officers reversible error where the prosecution was based upon the testimony of two police officers which contradicted the defendant's testimony and defense counsel was not given an opportunity to participate in voir dire). However, Waterman did not ask a single question about law enforcement. Instead, she spent the entire voir dire time inquiring into the jurors' involvement with and impressions of drugs and the people who took them.

We find the voir dire of the jury was adequate and, therefore, hold that Waterman is not entitled to a new trial on this ground either.

C. Bank Larceny is not a lesser included offense of Bank Robbery

Waterman contends that the court erred by requiring the jury to find her not guilty of bank robbery before allowing it to consider the crime of bank larceny. In United States v. Gregory, 891 F.2d 732, 734 (9th Cir. 1989), we held that bank larceny is not a lesser included offense of bank robbery because bank larceny contains a specific intent element that need not be proved in bank robbery. Thus, even assuming that there was some evidence to justify a bank larceny charge, under the Indictment in this case Waterman was not entitled to have the jury consider that alternative. We find no prejudicial error in the court's instruction of the jury; Waterman actually received more favorable instructions than those to which she was entitled.

AFFIRMED.

 *

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

 1

Waterman also contends that, for similar reasons, the government's motions should not result in excludable time. We need not consider that, since her motion alone excluded sufficient time and brought the matter within the parameters of the Speedy Trial Act