Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Ponciano Cruz RASA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Oscar Cruz RASA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Leo S. PANGELINAN, Defendant-Appellant.

Nos. 90-10007, 90-10037 and 90-10038.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.Decided Jan. 31, 1991.

Before SKOPIL, BEEZER and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Ponciano Cruz Rasa, Oscar Cruz Rasa, and Leo S. Pangelinan were charged with two counts of wire fraud, 18 U.S.C. § 1343 (1988), and with two counts of interfering with commerce by threats or violence, 18 U.S.C. § 1951 (1988). The Rasas pleaded guilty conditionally, reserving their right to appeal a Speedy Trial Act question.1  The Rasas also raise a jurisdictional question on appeal. Pangelinan proceeded to trial and was found guilty. He joins the Rasas on the Speedy Trial Act question and on the jurisdictional challenge. Pangelinan also contends that the trial court erred in denying his motion for new trial and in sentencing him. We reject all contentions and affirm.

DISCUSSION

The Rasas and Pangelinan challenge the authority of a non-article III judge to preside over their criminal prosecutions. They assert that the District Court for the Northern Mariana Islands is an article III court and that only an article III judge can preside at criminal trials brought under federal criminal statutes. We reject both arguments.

First, the District Court for the Mariana Islands is not an article III court. Sablan v. Santos, 634 F.2d 1153, 1155 (9th Cir. 1980). Second, the Supreme Court has held that non-article III judges may preside in non-article III courts hearing cases brought under criminal laws enacted by Congress. Palmore v. United States, 411 U.S. 389, 400 (1973) (District of Columbia); see also United States v. Canel, 708 F.2d 894, 896-97 (3rd Cir.) (Virgin Islands), cert. denied, 464 U.S. 852 (1983).

All defendants assign error to the "ends of justice" continuance granted by the trial court under the Speedy Trial Act. An "ends of justice" continuance will result in excludable delay only if the judge makes a finding "that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h) (8) (A) (1988). Moreover, the court must set forth, "in the record of the case, either orally or in writing, [the] reasons for [its] finding...." Id. The court must consider the factors enumerated in 18 U.S.C. § 3161(h) (8) (B), including, among others, whether the failure to grant the continuance would result in a miscarriage of justice or would deny either side reasonable time to prepare.

The district court's findings satisfy the requirements of section 3161(h) (8) (A). The court considered the relevant factors and timely set forth its reasons in the record. The court found that "neither the defense counsel nor the attorney for the government would have reasonable time necessary for effective preparation, taking into account the exercise and due diligence to prepare this case." The district court correctly found that neither side could reasonably prepare in the time required by the Act, and that "a miscarriage of justice would result" if it did not grant the motion. See 18 U.S.C. § 3161(h) (8) (B) (i & iv).

a. Prosecutorial Remarks

Pangelinan assigns as error the trial court's denial of his motion for a new trial based on the prosecutor's remarks during the rebuttal portion of closing argument. We conclude, as did the district court, that the prosecutor's remarks do not warrant reversal. Some of the challenged comments were made in response to defense counsel's remarks. See United States v. Chavez-Vernaza, 844 F.2d 1368, 1377 (9th Cir. 1987) (comments that are "invited" and do nothing more than "right the scale" do not warrant reversal). The remaining comments were either not improper, or even assuming error, were not prejudicial in light of the court's instructions. See United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1989) (comment on defendant's failure to present a witness is permissible where comment is not intended to note defendant's failure to testify); United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985) (prosecutor's non-testimonial remarks are not evidence and jury is so instructed); United States v. Taxe, 540 F.2d 961, 967-68 (9th Cir. 1976) (indecorous terms not improper provided there is some factual basis in the record), cert. denied, 429 U.S. 1040 (1977).

b. Requested Jury Instruction on Intent

Pangelinan argues that the court's instructions failed to adequately charge the jury on the element of intent. We disagree. The relevant instruction in this case included the words "knowingly" and "intentionally." Although the district court did not further explain those terms, the jury nevertheless was instructed that the government must prove beyond a reasonable doubt that defendant acted with a specific intent. The district court did not err in refusing to give Pangelinan's requested instruction.

Pangelinan argues that he was sentenced to a greater term of imprisonment than were the Rasas, who pleaded guilty, simply because he exercised his right to trial. The district court, however, stated unequivocally that it was not punishing Pangelinan for going to trial.2  In such instances, we have upheld the sentence imposed. United States v. Carter, 804 F.2d 508, 513 (9th Cir. 1986). Moreover, we have noted the propriety of crediting those who plead guilty. Id. at 514. We will not disturb the sentence imposed here.

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 Ninth Circuit Rule 36-3

 1

The Rasas make several other assignments of error that we do not consider because they were not properly preserved by the Rasas' conditional guilty pleas entered pursuant to Rule 11(a) (2) of the Federal Rules of Criminal Procedure. See United States v. Echegoyen, 799 F.2d 1271, 1276 (9th Cir. 1986); United States v. Alexander, 761 F.2d 1294, 1303 (9th Cir. 1985)

 2

We do not, however, approve of the district court's comments regarding cooperation with the judicial system. Those comments are troublesome and have made this a very close issue on appeal