United States v. De Rong Shang , 583 F. App'x 801 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 12-10551
)
Plaintiff - Appellee, ) D.C. No. 2:11-cr-00110-RLH-VCF-1
)
v. ) MEMORANDUM*
)
DE RONG SHANG, )
)
Defendant - Appellant. )
)
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Submitted July 8, 2014**
San Francisco, California
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
De Rong Shang appeals his convictions and sentence for conspiracy to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
commit wire fraud,1 wire fraud2 and aiding and abetting.3 We affirm.
(1) Shang first argues that the district court erred when it denied his
motion to dismiss the indictment because of preindictment delay in violation of the
Fifth Amendment. See U.S. Const. amend. V; United States v. Valentine, 783 F.2d
1413, 1416 (9th Cir. 1986). We do not agree. In order to sustain this claim, Shang
first had to prove “actual, non-speculative prejudice from the delay.” United States
v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992); see also United States v. Wallace,
848 F.2d 1464, 1469–70 (9th Cir. 1988). That is a heavy burden,4 and Shang did
not meet it. The indictment was filed within the statute of limitations period,5 and
Shang has not made any non-speculative showing that his defense was “actually
impaired meaningfully”6 by the loss of a witness,7 or the supposed dimming of
1
18 U.S.C. § 1349.
2
18 U.S.C. § 1343.
3
18 U.S.C. § 2.
4
See United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985).
5
See United States v. Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 2048, 52
L. Ed. 2d 752 (1977); United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998).
6
Moran, 759 F.2d at 782; see also Doe, 149 F.3d at 948.
7
See United States v. Corona-Verbera, 509 F.3d 1105, 1112–13 (9th Cir.
2007).
2
witnesses’ memories.8 Because he did not meet his burden of showing actual
prejudice, we need not, and do not, consider the reasons for the delay. See United
States v. Martinez, 77 F.3d 332, 335 (9th Cir. 1996); see also Corona-Verbera, 509
F.3d at 1113 n.2.
(2) Shang then asserts that the district court erred when it denied his
motion to dismiss the indictment because of a denial of his right to a speedy trial in
violation of the Sixth Amendment. See U.S. Const. amend. VI; United States v.
Gregory, 322 F.3d 1157, 1160–61 (9th Cir. 2003). We disagree. Because almost
one year expired between the date of his indictment and the commencement of his
trial, we apply a four-factor balancing test to his claim. See Doggett v. United
States, 505 U.S. 647, 651–52, 112 S. Ct. 2686, 2690–91, 120 L. Ed. 2d 520 (1992);
Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101
(1972). Particularly in a case of this complexity,9 we cannot say that the delay was
excessively long,10 and while he did ultimately assert his speedy trial right, that
was after he had stipulated to continuances.11 Moreover, much of the delay
8
See id.
9
See Barker, 407 U.S. at 531, 92 S. Ct. at 2192.
10
See Gregory, 322 F.3d at 1162–63.
11
See United States v. King, 483 F.3d 969, 976–77 (9th Cir. 2007); see also
(continued...)
3
occurred because the government had to file a superseding indictment after Shang
successfully challenged the original indictment. Finally, Shang has not
demonstrated any prejudice arising out of the delay — he was not in custody, he
has not submitted evidence of any particular anxiety or concern, and he has failed
to show impairment of his defense. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193;
Gregory, 322 F.3d at 1163–64. On balance, Shang’s Sixth Amendment rights were
not violated.
(3) Lastly, Shang asserts that the district court procedurally erred when it
sentenced him. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597,
169 L. Ed. 2d 445 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc). It did not. He argues that the district court did not think that it
could consider Shang’s probable removal from this country or the effect of his
family ties or responsibilities. However, the record does not show that the district
court thought any such thing. Along with the other information before it, the
district court carefully listened to and considered Shang’s arguments, and then
responded to them. United States v. Fasthorse, 639 F.3d 1182, 1185 (9th Cir.
2011); Carty, 520 F.3d at 991–93. It simply was not impressed with some of those
arguments. In fact, the district court granted a substantial downward variance from
11
(...continued)
Corona-Verbera, 509 F.3d at 1116.
4
the calculated guideline range in sentencing Shang. Cf. Carty, 520 F.3d at 994.
The district court did not abuse its discretion; the sentence was reasonable. See
Gall, 552 U.S. at 46, 128 S. Ct. at 594.
AFFIRMED.
5