United States v. Van Velzer

97 F. App'x 742

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2004
• Docket: No. 02-10148; D.C. No. CR-00-00346-JLQ
• Status: Published

Opinion

MEMORANDUM

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David Van Velzer (“Van Velzer”) appeals the district court’s decision to dismiss his indictment for violations of the Speedy Trial Act (“STA”), 18 U.S.C. §§ 3161-62, without prejudice. He also argues that the trial delay violated his Sixth Amendment right to a speedy trial, and that the district court plainly erred by failing to include aiding and abetting instructions in its instruction to the jury on wire fraud.

The district court properly considered the three non-exclusive factors regarding prejudice provided by the STA, 18 U.S.C. § 3162(a)(2). See United States v. Taylor, 487 U.S. 326, 337, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). Van Velzer’s crime was clearly serious, the facts and circumstances causing the delay were almost all directly or indirectly attributable to Van Velzer himself, and the impact of reprosecution on the administration of justice or the STA is minimal in light of these precipitating circumstances. See Taylor, 487 U.S. at 337. The factual findings relied on by the district court in making its STA calculations were also not clearly erroneous. See United States v. Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir.2000); United States v. Clymer, 25 F.3d 824, 829 (9th Cir.1994).

Similarly, a balance of the factors set out in Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), weighs against a Sixth Amendment violation. Particularly, Van Velzer has not demonstrated actual prejudice beyond what he has brought on himself by his conduct in this case. See id.; see also United States v. Lam, 251 F.3d 852 (9th Cir.2001).

Nor did the district court plainly err in its instruction to the jury on money laundering and wire fraud-crimes that do not require a separate finding with regard to aiding and abetting. See, e.g., United States v. Manion, 339 F.3d 1153, 1156 (9th Cir.2003).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.