United States v. Wendie Brown , 404 F. App'x 665 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1264
_____________
UNITED STATES OF AMERICA
v.
WENDIE MICHEL BROWN,
Appellant
____________
On Appeal from the District Court
of the United States Virgin Islands
District Court No. 3-08-cr-00055-001
District Judge: The Honorable Curtis V. Gómez
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 17, 2010
Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed: December 29, 2010)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
A petit jury convicted Wendie Michel Brown of nineteen counts of wire fraud in
violation of 18 U.S.C. § 1343. This timely appeal followed. Brown presents four
questions for review: (1) whether the District Court erred in denying her motion to
dismiss the Indictment for violations of the Speedy Trial Act and the Sixth Amendment
guarantee of a speedy trial; (2) whether the District Court erred in excluding testimony
regarding her employment discrimination claim; (3) whether certain errors that occurred
in the grand jury proceeding warranted dismissal of the Indictment; and (4) whether the
admission of certain original documents used in executing the wire fraud scheme was
improper.1 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. §
1612(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.
A grand jury returned an Indictment on November 6, 2008, charging Brown with
nineteen counts of wire fraud in violation of 18 U.S.C. § 1343. The Indictment alleged
that Brown, while employed by the Bank of Nova Scotia as an assistant manager of sales
and marketing, fraudulently created nineteen bank checks and debit slips as though they
represented payment for an invoice for Bank supplies. The checks, however, were
deposited in an account, from which Brown accessed the funds.2
An assistant federal public defender entered an appearance for Brown. Thereafter,
defense counsel filed a motion to extend the time for filing pretrial motions, citing the
production of numerous documents and a rapidly approaching trial date. On the heels of
this motion, Brown filed an Application and Checklist for Speedy Trial Extension
1
Although Brown presents an additional issue for our review, she did not provide any
legal argument on that issue. Because an appellant‟s failure to present legal argument in
support of an issue constitutes a waiver of that issue on appeal, we do not address the
unargued question listed in Brown‟s “Questions Presented for Review,” i.e., “Whether
the [District] Court erred in sustaining objections to counsel‟s opening, presentation of
witnesses and evidence on behalf of Wendie Brown.” See Kost v. Kozakiewicz, 1 F.3d
176, 182 (3d Cir. 1993) (citing Fed. R. App. P. 28).
2
A Superceding Indictment and a Second Superceding Indictment were filed,
respectively, in July and September of 2009, alleging the same nineteen counts of wire
fraud in violation of 18 U.S.C. § 1343. The differences are not material to our decision.
2
(Application) that “move[d]” the District Court “to extend the period of time within
which this matter must be tried[.]” The Application indicated that Brown was aware of
the requirements of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., that additional time
was needed to explore plea options and to adequately prepare for trial, that she
voluntarily and knowingly waived her right to a speedy trial under the Act, and that she
sought this extension with the advice and consent of counsel. On January 12, 2009, the
District Court granted an extension until March 9, 2009, and specifically found that the
extension “would be in the best interest of justice” because of the demands of discovery
and the need for reasonable time to prepare for trial.
In February of 2009, Brown filed a second Application, “mov[ing]” for an
extension of the trial date to June 9, 2009. This second Application cited the need for
further discovery, review and expert consultation. It was signed by both Brown and her
defense counsel. The Court did not rule on the motion, holding several status
conferences instead. Brown filed a third Application on May 8, 2009. This too was
signed by Brown and her defense counsel. On June 3, defense counsel filed another
motion to continue, which explained that Brown had received a favorable decision in an
employment discrimination matter, and that counsel needed time to determine if this
would provide her with a defense.
On June 4, Brown‟s current counsel filed an entry of appearance, and within days
moved to continue the trial date. The Court granted a request by Brown‟s assistant
federal public defender to withdraw. On July 15, Brown‟s current counsel filed a motion
to dismiss the Indictment based on violations of the Speedy Trial Act and the Sixth
3
Amendment guarantee of a speedy trial. After a hearing, the District Court denied the
motion to dismiss. In a thorough memorandum opinion, the Court explained its
computation under the Speedy Trial Act, concluding that there had not been a violation of
the Act‟s 70-day time limit. In reaching this conclusion, the Court treated Brown‟s
Applications as motions that tolled the speedy trial clock under 18 U.S.C. §
3161(h)(1)(D). Thereafter, additional motions were filed before trial commenced on
September 28, 2009. Three days later, the jury found Brown guilty on each of the
nineteen counts of wire fraud.
On appeal, Brown contends that the District Court erred in denying her motion to
dismiss for speedy trial violations. She does not take issue with the District Court‟s
calculation. Rather, she contends that the Court erred by considering the Applications as
motions that tolled the speedy trial clock. This was error, according to Brown, because
she did not intentionally and knowingly relinquish her right to a speedy trial under the
Act.
We conduct de novo review of a district court‟s interpretation of the Speedy Trial
Act. United States v. Rivera Constr. Co., 863 F.2d 293, 295 n.3 (3d Cir. 1988). We
agree with the District Court that the Applications qualified as motions under Federal
Rule of Criminal Procedure 47 inasmuch as they specifically requested an extension of
time and cited reasons for such an extension. See Melendez v. United States, 518 U.S.
120, 126 (1996) (observing that “the term „motion‟ generally means „[a]n application
made to a court or judge for [the] purpose of obtaining a rule or order directing some act
to be done in favor of the applicant‟”) (quoting Black‟s Law Dictionary 1013 (6th
4
ed.1990)). Because the Applications constituted motions, the District Court appropriately
concluded that they tolled the speedy trial clock under 18 U.S.C. § 3161(h)(1)(D) and (H)
for 30 days. See Henderson v. United States, 476 U.S. 321, 327-29 (1986) (observing
that a pretrial motion allows exclusion for up to 30 days while the district court has the
motion under advisement); see also Bloate v. United States, __ U.S. __, 130 S. Ct. 1345,
1353 (2010) (pointing out that delay from the filing of pretrial motions is automatically
excludable under § 3161(h)(1)(D) through either “prompt disposition” by the Court or the
expiration of the 30 day period that the motion is taken under advisement).
Brown argues, however, that the Applications cannot toll the speedy trial clock
because she did not knowingly and intentionally relinquish her rights under the Speedy
Trial Act. Tolling the speedy trial clock, however, does not require a knowing and
intelligent waiver by a defendant of her rights under the Speedy Trial Act. The Act
contemplates that motions for extensions of time may be filed “at the request of the
defendant or his counsel[.]” 18 U.S.C. § 3161(h)(7)(A) (emphasis added). Thus, a
motion by counsel for an extension of time tolls the speedy trial clock regardless of
whether the defendant knowingly assents.3 See New York v. Hill, 528 U.S. 110, 115
(2000) (acknowledging that language in the Interstate Agreement on Detainers Act that
allows “the court to grant „good-cause continuances‟ when either „prisoner or his
3
We disagree with Brown‟s assertion in her reply brief that the Supreme Court‟s
decision in Zedner v. United States, 547 U.S. 489 (2006), is controlling. In that case, the
Supreme Court considered whether the time granted by an “ends of justice” continuance
under § 3161(h)(8), now codified at § 3161(h)(7)(A), was excludable. We are concerned
with § 3161(h)(1)(D) and (H), which stops the clock when the motion is filed until either
the District Court rules on the motion or for a 30 day period while the motion is under
advisement, whichever is earlier.
5
counsel‟ is present . . . contemplates that scheduling questions may be left to counsel”
(emphasis in original)); see also United States v. Fields, 39 F.3d 439 (3d Cir. 1994)
(rejecting defendant‟s argument that the continuance requested by counsel, to which the
defendant acquiesced, should not be excludable time for purposes of the Speedy Trial
Act). In the absence of a violation of the Speedy Trial Act, we will not set aside the
District Court‟s order denying the motion to dismiss.
Brown also asserts that her Sixth Amendment right to a speedy trial was violated
as a result of the nine month delay between her Indictment and her trial. The District
Court rejected this argument in its memorandum opinion, thoroughly analyzing the four
prongs of the test set forth in Barker v. Wingo, 407 U.S. 514 (1972). We review de novo
the District Court‟s legal conclusion and conduct clear error review of the factual
findings underpinning that conclusion. United States v. Battis, 589 F.3d 673, 677 (3d Cir.
2009). For substantially the reasons given by the District Court, we will affirm its order
denying Brown‟s motion to dismiss on the basis of a Sixth Amendment speedy trial
violation.
Brown‟s second question for review challenges the District Court‟s exclusion of
evidence regarding her employment discrimination claim against her former employer,
the Bank of Nova Scotia, which was the victim of Brown‟s wire fraud scheme. At trial,
Brown‟s counsel sought to introduce evidence regarding Brown‟s discrimination claim in
an attempt to show that the Bank retaliated by initiating this criminal investigation, which
resulted in a 19-Count Indictment. The Court refused. It conducted a balancing test
under Federal Rule of Evidence 403 and ruled that the evidence was inadmissible. It
6
explained that the Bank was not a party to the action and that evidence regarding
Brown‟s discrimination claim would create a distraction for the jury by raising issues that
were not before them in this criminal proceeding. The Court advised defense counsel
that its ruling did not preclude him from examining any witness regarding credibility
issues.
We review a trial court‟s exclusion of evidence under Rule 403‟s balancing test
for an “abuse of discretion, which means we must uphold the District Court unless its
ruling was arbitrary or irrational.” United States v. Green, 617 F.3d 233, 251-52 (3d Cir.
2010) (internal quotation marks omitted). We conclude that the District Court
appropriately performed the balancing test and correctly excluded the discrimination
claim.4
Brown also challenges the District Court‟s refusal to dismiss her Indictment
on the basis that certain errors by the prosecution affected the grand jury‟s
charging decision.5 Even if we assume that the prosecution erred during the grand
jury proceeding as Brown claims,
the petit jury‟s subsequent guilty verdict means not only that there was
4
Brown argues in both her principal brief and her reply brief that the court deprived her
of her right to testify on her own behalf. Brown does not provide a citation to the record
to support this assertion. Nor have we located any ruling by the District Court precluding
her from testifying. Accordingly, because this legal argument lacks any factual basis, we
do not address it.
5
Brown also asserts in this section of her brief that the Indictment and the Superceding
Indictments were defective. Appellate Rule 28(a)(9) requires an appellant to present
argument with citations to authority and that portion of the record on which she relies.
Because Brown has presented neither legal argument nor citations to the record, we deem
any argument Brown may have raised regarding the sufficiency of the Indictment as
waived. Fed. R. App. P. 28(a)(9); Kost, 1 F.3d at 182.
7
probable cause to believe that [Brown was] guilty as charged, but also that
[she is] in fact guilty as charged beyond a reasonable doubt. Measured by
the petit jury‟s verdict, then, any error in the grand jury proceeding
connected with the charging decision was harmless beyond a reasonable
doubt.
United States v. Mechanik, 475 U.S. 66, 70 (1986); see also Bank of Nova Scotia v.
United States, 487 U.S. 250, 263 (1988).
Brown‟s fourth question for review contends that the Court erred by allowing the
introduction into evidence of certain original checks. Brown submits, without citation to
any legal authority or to that portion of the record on which she relies, that the checks
should not have been admitted into evidence because they had been altered from their
original state. We review evidentiary rulings for an abuse of discretion. Green, 617 F.3d
at 239. We see no abuse by the District Court. The fact that the original check may have
been subsequently altered is a matter that affects the weight the jury accords that
evidence, not its admissibility.
For the reasons set forth above, we will affirm the judgment of the District Court.
8