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United States v. George

filed: June 11, 1996.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CRAIG BRADLEY GEORGE, AKA: STEVE EUGENE JOHNSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. No. CR-91-00057-RG(JR)-1. Richard A. Gadbois, Jr., District Judge, Presiding.

Before: James R. Browning, J. Clifford Wallace, and Jerome Farris, Circuit Judges. Opinion by Judge Wallace.

Author: Wallace

WALLACE, Circuit Judge:

George appeals from his conviction of two counts of bank robbery in violation of 18 U.S.C. § 2113(a). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

I

On January 22, 1991, an indictment was filed charging George with two counts of bank robbery. Trial was scheduled for April 30, but on that day, George requested that the court appoint new counsel. The district court granted George's request and reset the trial for July 16, 1991.

On July 15, George, through counsel, moved for a continuance, insisting that he was not prepared for trial. The district court granted George's motion and set the trial for August 20, 1991. George also asked for a new attorney, which the court denied.

On August 2, George again asked that his trial be postponed. The district court recalendared the trial for September 17. On September 19, George once more requested a continuance. He also asked the court to acknowledge him as co-counsel and to appoint a private investigator to assist in his defense. The court granted all of George's motions, continuing the trial until October 8, appointing an investigator, and giving George co-counsel status. On September 24, the court signed an order which ensured that George received all the benefits of pro se status.

On October 8, George filed ten handwritten motions, including motions for a continuance, a medical and psychological examination, dismissal of his co-counsel, permission to proceed pro se, discovery, dismissal of the Judge, copies of transcripts of all prior proceedings in the case, and a new bail hearing. The district court denied all of these motions.

On October 9, prior to the presentation of evidence, the court heard and decided various motions in limine that the government had filed on April 25. George filed two more handwritten motions, asking the court to dismiss his counsel and asking for a new trial. The court denied George's motions.

On October 15, George filed, and the court denied, more handwritten motions, including a motion for a mistrial and a motion requesting appointment of an anthropologist, a psychologist, and a polygraph specialist. George also filed another motion to proceed pro se. The court responded by making George's appointed attorney advisory counsel, rather than co-counsel. On the same day, after the close of the government's case-in-chief, George waived his right to a jury trial and the trial proceeded as a bench trial.

The following day, George filed more handwritten motions, including a motion for another continuance. The court denied the motions and ultimately convicted George of both counts of robbery.

II

George first argues that he did not receive a speedy trial. We review questions of law concerning the application of the Speedy Trial Act (Act) de novo. United States v. Springer, 51 F.3d 861, 864 (9th Cir. 1995) (Springer).

The Act, 18 U.S.C. §§ 3161-3174, requires that George's trial commence within 70 days from the later of the filing of an indictment or his first appearance, barring excludable time. Henderson v. United States, 476 U.S. 321, 326, 90 L. Ed. 2d 299, 106 S. Ct. 1871 (1986) (Henderson); 18 U.S.C. § 3161(c)(1). George was arraigned on January 28, 1991, and his trial began 253 days later, on October 8. See United States v. Manfredi, 722 F.2d 519, 524 (9th Cir. 1984) (for purposes of the Act, trial "commences" on day voir dire begins). George does not dispute that the time from January 28 to July 14 was properly excluded due to the filing of various pretrial motions. However, George argues that the 85 days between July 15 and October 8, 1991, were nonexcludable and that the delay was impermissible.

On April 25, the government filed three motions in limine. The court heard and decided these motions on October 9, after the jury had been impaneled, but before the presentation of any evidence. The Act specifically excludes time "from the filing of [any pretrial] motion through the Conclusion of the hearing on" the motion. 18 U.S.C. § 3161(h)(1)(F); see also Springer, 51 F.3d at 865 (where court hears and decides a motion in limine before trial, time between the filing and the hearing is excludable); Henderson, 476 U.S. at 329-30 (for pretrial motions that require a hearing, delay can be excluded "whether or not a delay in holding that hearing is 'reasonably necessary'"). As we explained in Springer, the exception in United States v. Clymer, 25 F.3d 824, 830-31 (9th Cir. 1994) (holding that time between filing of pretrial motion and hearing ...


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