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United States v. Akers

filed*fn1: May 22, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
STANLEY W. AKERS, JR., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona. DC No. CR-89-00178-6-RGS, DC No. CR-89-00178-RGS. Roger G. Strand, District Judge, Presiding.

Before: Boochever, Norris, and Hall, Circuit Judges.

MEMORANDUM*fn1a

I. Motion to withdraw as counsel

Akers' appointed counsel on appeal has filed a brief requesting leave to withdraw under Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). The brief satisfies Anders ' requirements. Counsel states that he has reviewed the record in Akers' case as well as the codefendants' files. Akers did not file a brief in response.

We have "made [our] own examination of the record to determine whether counsel's evaluation of the case was sound." Penson v. Ohio, 488 U.S. 75, 82-83, 102 L. Ed. 2d 300, 109 S. Ct. 346 (1988). We have also reviewed the record to discern whether there are arguable issues not raised by counsel's Anders brief. See United States v. Aldana-Ortiz, 6 F.3d 601, 602 n.1 (9th Cir. 1993) (per curiam) (appeals court must search independently for issues not raised by counsel).

We find that there are no legal issues that are arguable on their merits. No appointment of substitute counsel is necessary. We therefore grant Akers' counsel's motion to withdraw and dismiss the appeal, affirming Akers' sentence and conviction.

II. Right to speedy trial

Callahan argues that the government violated Callahan's Sixth Amendment right to a speedy trial by its delay in notifying the court of his attorneys' conflict of interest. Callahan moved to dismiss the indictment on speedy trial grounds in the district court. [SER tab 11 pp. 17-18] This court reviews de novo the district court's denial of the motion to dismiss based upon the Sixth Amendment right to a speedy trial, and reviews the findings of fact for clear error. United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993).

To determine whether Callahan's speedy trial right was violated, four separate inquiries must be balanced: "whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result." Doggett v. United States, 120 L. Ed. 2d 520, 112 S. Ct. 2686, 2690 (1992) (citing Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972)). Prejudice may be presumed when the delay in trial is excessive, and the importance of such presumed prejudice increases with the length of delay. See Doggett, 112 S. Ct. at 2693; United States v. Shell, 974 F.2d 1035, 1036 (9th Cir. 1992). "When the defendant seeks to 'avoid detection by American authorities' and any post-indictment delay can be attributed to him, he waives the right to a speedy trial." United States v. Sandoval, 990 F.2d 481, 483 (9th Cir.) (quoting United States v. Wangrow, 924 F.2d 1434, 1437 (8th Cir. 1991)), cert. denied, 114 S. Ct. 218 (1993); see United States v. Aguirre, 994 F.2d 1454, 1456 n.3 (9th Cir.) ("If the defendant is culpable in causing the delay--such as when he actively evades prosecution--the prejudice growing from the delay he caused cannot be weighed in his favor."), cert. denied, 126 L. Ed. 2d 603, 114 S. Ct. 645 (1993).

Callahan claims his speedy trial right was violated by the government's delay in notifying the court of Waltz's agreement to cooperate with the government, which caused a conflict requiring the appointment of new counsel for Callahan. Callahan argues that this delay was caused by the government in bad faith and was presumptively prejudicial.

1. Length of delay

To trigger a speedy trial analysis, Callahan must first allege that the delay he suffered was more than ordinary delay, i.e. was "presumptively prejudicial." Doggett, 112 S. Ct. at 2690. Delays approaching one year have generally been found to be presumptively prejudicial for the purpose of beginning the speedy trial inquiry. See id. at 2691 n.1. On appeal, Callahan first claims the delay began in March 1991, when Waltz initially approached the FBI to offer his cooperation, and extends to June 25, 1992, when the conflict was disclosed. But Callahan ignores that until his extradition on September 28, 1991, he was a fugitive in New Zealand. The district court found that Callahan's extradition was not complete until November, 1991 [SER tab 11 p. 18], and Callahan does not attempt to show that factual determination was clearly erroneous. Excluding the period during which Callahan was attempting to evade the authorities from the speedy trial analysis, the longest delay Callahan can claim is from November 1991 to June 1992, a period of eight months. That is well below the one-year period for a presumption of prejudice, although an examination of the other factors may be required nevertheless. See United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir.), cert. denied, 113 S. Ct. 627 (1992) (eight month delay may meet standard for presumption of prejudice).*fn1

2. Responsibility for the delay

The government was primarily responsible for the eight-month delay in advising the court of the conflict after ...


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