United States v. Freeman D. Carter, A/K/A Daniel Brady, James Patrick Daly, and William Carson

804 F.2d 508
Court of Appeals for the Ninth Circuit·Decided November 13, 1986·No. 85-3075, 85-3080 and 85-3082·Published·Cited by 51 cases

Opinions

AMENDED OPINION

Before WRIGHT, TANG and REINHARDT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge.

In this appeal from convictions for conspiracy and interstate transportation of stolen record albums, we have these issues:

(1) Were five counts multiplicitous?
(2) Was the Speedy Trial Act violated?
(3) Were harsher sentences imposed because the defendants exercised their right to stand trial rather than accept a proposed plea agreement?

FACTS

Appellants stole over 68,000 record albums from stores in the Seattle-Tacoma area over a two-year period. The stolen records were then boxed and shipped to Chicago or Boston. At least 124 separate shipments were made to those cities.

The conspirators were arrested and charged on November 28, 1984 in a six-count indictment. Count I charged conspiracy to violate 18 U.S.C. § 2314. Counts II [510]*510through VI charged substantive violations of § 2314. Shipments were aggregated so that each count would satisfy the statute’s $5,000 jurisdictional requirement.

Not guilty pleas were entered and trial was set for January 14, 1985. On the trial date, the defendants pleaded guilty under an agreement. The court ordered a presentence report and scheduled sentencing. On the day of sentencing, the court stated the plea agreement would be acceptable only if restitution were to be required. Sentencing was rescheduled to allow time for calculation of the amount of restitution and for reconsideration of the pleas.

On March 6, 1985, the appellants withdrew their guilty pleas. After ruling on pretrial motions on March 8, the court scheduled trial for March 11. Conflicting schedules between defense counsel and the court calendar forced a continuance until April 22. Due to unanticipated delay caused by an intervening trial, the trial could not begin until April 30, 74 days after indictment.

The jury convicted the appellants on all six counts. They were sentenced to five years probation on Count I and ten-year concurrent terms for each of Counts II through VI. The court ordered each defendant to pay $148,171.83 in restitution. STANDARD OF REVIEW

Each issue presented on appeal raises either questions of law or mixed questions of law and fact. We review these de novo. See United States v. Gallardo, 773 F.2d 1496, 1501 (9th Cir.1985); United States v. McConney, 728 F.2d 1195, 1201, 1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). ANALYSIS

I. Multiplicity — Aggregation of Shipments Into Several Counts

The government aggregated the shipments of stolen property to Boston in Count II. It aggregated the Chicago shipments in Counts III through VI. The Chicago counts were divided chronologically. Each substantive count satisfied the $5,000 jurisdictional requirement.1

Appellants contend that the aggregation and subdivision of shipments into several counts is multiplicitous. They concede that, under Schaffer v. United States, 362 U.S. 511, 517-18, 80 S.Ct. 945, 948-49, 4 L.Ed.2d 921 (1960), related shipments may be aggregated to meet § 2314’s jurisdictional amount, but argue that only one substantive count could have been charged.2 The government contends that each shipment is a separate transportation chargeable in a separate count but for the jurisdictional amount. It relies on Schaffer and the definition of value in 18 U.S.C. § 2311 to support aggregation of shipments and subdivision into several counts. Section 2314 provides in relevant part:

Whoever transports in interstate or foreign commerce any goods ... of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.

18 U.S.C. § 2314.

The law is clear that the values of separate offenses may be aggregated. Section 2311 defines value in the aggregate. Further, the Supreme Court has allowed aggregation of transportations within a count if a series of shipments is so related that it may be charged as a single offense. Schaffer, 362 U.S. at 517, 80 S.Ct. at 949. The Court said:

A sensible reading of the statute properly attributes to Congress the view that where the shipments have enough relationship so that they may properly be [511]*511charged as a single offense, their value may be aggregated. The Act defines ‘value’ in terms of that aggregate. The legislative history makes clear that the value may be computed on a ‘series of transactions.’

Id. (footnotes omitted); see also United States v. Belmont, 715 F.2d 459, 462 (9th Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1275, 79 L.Ed.2d 679, cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984).

But the question we face is whether aggregate offenses also may be subdivided into separate charges. The shipment of stolen record albums was a series of transfers. Each of the 124 shipments is a separate chargeable offense under § 2314 but for the jurisdictional amount.

Other circuits have held that each transportation is a separate chargeable offense if it meets the jurisdictional amount. United States v. Lagerquist, 724 F.2d 693, 694-95 (8th Cir.1984) (five shipments of stolen property did not give rise to five counts because none of the counts satisfied the jurisdictional amount), appeal after remand, 758 F.2d 1279, 1281-82 (8th Cir. 1985) (the five shipments properly could be aggregated in one count to meet the jurisdictional amount); United States v. Markus, 721 F.2d 442, 444 (3d Cir.1983) (20 transportations of stolen checks gave rise to 20 counts; the court dismissed the charges because each count did not meet the jurisdictional amount).

We have held that transportation of stolen checks on different occasions gives rise to separate counts, and that it is appropriate to aggregate the values within each count to meet the jurisdictional amount. United States v. Bell, 742 F.2d 509, 511 (9th Cir.1984). “[T]he indictment subdivides one overall scheme (the interstate transport ... of stolen money orders) into its constituent parts (interstate transport on four different days).” Id.

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United States v. Freeman D. Carter, A/K/A Daniel Brady, James Patrick Daly, and William Carson, 804 F.2d 508 (9th Cir. 1986).

804 F.2d 508 (United States v. Freeman D. Carter, A/K/A Daniel Brady, James Patrick Daly, and William Carson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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