FILED JUL 29 2011 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10080
Plaintiff - Appellee, D.C. No. CR-03-05410-LJO
v. MEMORANDUM * VICTOR VEVEA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted May 9, 2011 San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**
Victor VeVea appeals his conviction and sentence for “unlawful access to
stored communications,” 18 U.S.C. § 2701(a) (1996) (amended 2002). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation. 1. VeVea raises several arguments relating to how the offense was
classified in certain documents and proceedings before the district court. He
complains that the offense’s Class B misdemeanor designation is inconsistent with
the superseding information’s charge of an element enhancing the offense to a
Class A misdemeanor, as well as the district court’s imprecise statement at
sentencing that the offense was “a petty offense, not a misdemeanor.”
Notwithstanding these irregularities, the record is absolutely clear that VeVea was
tried, convicted, and sentenced only for a Class B misdemeanor,1 which is a petty
offense. 18 U.S.C. § 19. Because the Class B misdemeanor was a lesser-included
offense of the superseding information charge, the government was permitted to
prosecute that offense. See United States v. Gavin, 959 F.2d 788, 791–92 (9th Cir.
1992). Further, because VeVea was tried only for a Class B misdemeanor, his
prosecution was not governed by the Speedy Trial Act, 18 U.S.C. § 3172(2), and
he was not entitled to a jury trial, Blanton v. City of N. Las Vegas, 489 U.S. 538,
541 (1989).
1 VeVea’s argument that we are bound by the district court’s imprecise statement at sentencing misapplies United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). The rule of Munoz-Dela Rosa addresses only oral pronouncement of the sentence itself, not the offense’s legal classification. Further, we need not consider the original judgment’s listing of the wrong statutory subsection because that typographical error is now corrected.
2 2. VeVea was not denied the Sixth Amendment right to counsel because
he is not indigent and the district court did not prevent him from having his chosen
attorney represent him. See Caplin & Drysdale, Chartered v. United States, 491
U.S. 617, 626 (1989) (“[T]he Sixth Amendment’s protection of one’s right to
retain counsel of his choosing . . . does not go beyond the individual’s right to
spend his own money to obtain the advice and assistance of counsel.” (internal
quotation and alteration omitted)).
We recognize that there is authority for non-indigent defendants’ entitlement
to appointed counsel in certain cases. E.g., United States v. Rivera-Corona, 618
F.3d 976, 982 n.5 (9th Cir. 2010). Although our cases do not say what
circumstances may give rise to this entitlement, we need not decide that here.
Whatever the extent of non-indigent defendants’ entitlement to appointed counsel,
the district court did not err in denying appointed counsel to VeVea. The district
court in fact appointed two attorneys to represent VeVea, both of whom, according
to the district court, withdrew as a result of conflicts with VeVea. VeVea’s first
and second appointed lawyers represented him through October 16, 2007, a period
of nearly four years of representation. After his second appointed lawyer
withdrew, VeVea did not move for appointment of replacement counsel until
December 26, 2007, more than two months after his second attorney withdrew and
3 less than one month before the scheduled trial date. Although VeVea told the
district court that he was struggling to find an attorney whose rate he could
reasonably afford, he does not appeal the district court’s determination that he had
adequate financial means to retain counsel. Further, he made no showing before
the district court that he was unable to obtain counsel for non-financial reasons
such as “the unpopularity of the cause with which [he was] identified.” 3B Charles
A. Wright, et al., Federal Practice & Procedure § 732 (3d ed. 2010). To the
contrary, that VeVea acquired representation for trial, with his third lawyer’s
representation commencing at least by the start of the trial, tends to show that
counsel was available to him. Because VeVea did not establish before the district
court that he was unable to obtain counsel, for reasons financial or otherwise, the
district court did not err in denying VeVea appointed counsel.
3. VeVea was not denied the Sixth Amendment right to a speedy trial
under Barker v. Wingo, 407 U.S. 514, 530–33 (1972). “If . . . the defendant is
responsible for the delay in his trial, then he carries a heavy burden of
demonstrating actual prejudice to succeed on a speedy trial claim.” United States
v. Tanh Huu Lam, 251 F.3d 852, 859 (9th Cir. 2001). Here, the delay in reaching
trial is attributable to VeVea’s own conduct, both his litigation tactics and his
causing two attorneys to withdraw. And VeVea’s assertion that he was prejudiced
4 by the death of prospective witness Dean J. Miller is speculative. See id. at 860
(stating that a defendant’s “contentions regarding alleged defects in witness
testimony or lost evidence amount at most to speculation and fail to demonstrate
any actual prejudice to his defense”). Because VeVea has not satisfied his “heavy
burden of demonstrating actual prejudice,” id. at 859, we will not conclude that a
Sixth Amendment speedy trial violation occurred.
4. The district court did not err by declining to order state officials, who
searched VeVea’s home and workplace in a related investigation, to produce an
inventory of seized items pursuant to Federal Rule of Criminal Procedure
41(f)(1)(B). The rule, by its terms, requires creation of an inventory only for
searches authorized by warrants issued under the federal rules. It does not govern
searches authorized by state search warrants. Further, VeVea shows no prejudice
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FILED JUL 29 2011 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10080
Plaintiff - Appellee, D.C. No. CR-03-05410-LJO
v. MEMORANDUM * VICTOR VEVEA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted May 9, 2011 San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**
Victor VeVea appeals his conviction and sentence for “unlawful access to
stored communications,” 18 U.S.C. § 2701(a) (1996) (amended 2002). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation. 1. VeVea raises several arguments relating to how the offense was
classified in certain documents and proceedings before the district court. He
complains that the offense’s Class B misdemeanor designation is inconsistent with
the superseding information’s charge of an element enhancing the offense to a
Class A misdemeanor, as well as the district court’s imprecise statement at
sentencing that the offense was “a petty offense, not a misdemeanor.”
Notwithstanding these irregularities, the record is absolutely clear that VeVea was
tried, convicted, and sentenced only for a Class B misdemeanor,1 which is a petty
offense. 18 U.S.C. § 19. Because the Class B misdemeanor was a lesser-included
offense of the superseding information charge, the government was permitted to
prosecute that offense. See United States v. Gavin, 959 F.2d 788, 791–92 (9th Cir.
1992). Further, because VeVea was tried only for a Class B misdemeanor, his
prosecution was not governed by the Speedy Trial Act, 18 U.S.C. § 3172(2), and
he was not entitled to a jury trial, Blanton v. City of N. Las Vegas, 489 U.S. 538,
541 (1989).
1 VeVea’s argument that we are bound by the district court’s imprecise statement at sentencing misapplies United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). The rule of Munoz-Dela Rosa addresses only oral pronouncement of the sentence itself, not the offense’s legal classification. Further, we need not consider the original judgment’s listing of the wrong statutory subsection because that typographical error is now corrected.
2 2. VeVea was not denied the Sixth Amendment right to counsel because
he is not indigent and the district court did not prevent him from having his chosen
attorney represent him. See Caplin & Drysdale, Chartered v. United States, 491
U.S. 617, 626 (1989) (“[T]he Sixth Amendment’s protection of one’s right to
retain counsel of his choosing . . . does not go beyond the individual’s right to
spend his own money to obtain the advice and assistance of counsel.” (internal
quotation and alteration omitted)).
We recognize that there is authority for non-indigent defendants’ entitlement
to appointed counsel in certain cases. E.g., United States v. Rivera-Corona, 618
F.3d 976, 982 n.5 (9th Cir. 2010). Although our cases do not say what
circumstances may give rise to this entitlement, we need not decide that here.
Whatever the extent of non-indigent defendants’ entitlement to appointed counsel,
the district court did not err in denying appointed counsel to VeVea. The district
court in fact appointed two attorneys to represent VeVea, both of whom, according
to the district court, withdrew as a result of conflicts with VeVea. VeVea’s first
and second appointed lawyers represented him through October 16, 2007, a period
of nearly four years of representation. After his second appointed lawyer
withdrew, VeVea did not move for appointment of replacement counsel until
December 26, 2007, more than two months after his second attorney withdrew and
3 less than one month before the scheduled trial date. Although VeVea told the
district court that he was struggling to find an attorney whose rate he could
reasonably afford, he does not appeal the district court’s determination that he had
adequate financial means to retain counsel. Further, he made no showing before
the district court that he was unable to obtain counsel for non-financial reasons
such as “the unpopularity of the cause with which [he was] identified.” 3B Charles
A. Wright, et al., Federal Practice & Procedure § 732 (3d ed. 2010). To the
contrary, that VeVea acquired representation for trial, with his third lawyer’s
representation commencing at least by the start of the trial, tends to show that
counsel was available to him. Because VeVea did not establish before the district
court that he was unable to obtain counsel, for reasons financial or otherwise, the
district court did not err in denying VeVea appointed counsel.
3. VeVea was not denied the Sixth Amendment right to a speedy trial
under Barker v. Wingo, 407 U.S. 514, 530–33 (1972). “If . . . the defendant is
responsible for the delay in his trial, then he carries a heavy burden of
demonstrating actual prejudice to succeed on a speedy trial claim.” United States
v. Tanh Huu Lam, 251 F.3d 852, 859 (9th Cir. 2001). Here, the delay in reaching
trial is attributable to VeVea’s own conduct, both his litigation tactics and his
causing two attorneys to withdraw. And VeVea’s assertion that he was prejudiced
4 by the death of prospective witness Dean J. Miller is speculative. See id. at 860
(stating that a defendant’s “contentions regarding alleged defects in witness
testimony or lost evidence amount at most to speculation and fail to demonstrate
any actual prejudice to his defense”). Because VeVea has not satisfied his “heavy
burden of demonstrating actual prejudice,” id. at 859, we will not conclude that a
Sixth Amendment speedy trial violation occurred.
4. The district court did not err by declining to order state officials, who
searched VeVea’s home and workplace in a related investigation, to produce an
inventory of seized items pursuant to Federal Rule of Criminal Procedure
41(f)(1)(B). The rule, by its terms, requires creation of an inventory only for
searches authorized by warrants issued under the federal rules. It does not govern
searches authorized by state search warrants. Further, VeVea shows no prejudice
to his defense resulting from the state’s failure to produce an inventory of seized
items, which were not used in the federal prosecution.
5. The district court did not abuse its discretion by denying VeVea’s
request for 73 subpoenas duces tecum. The district court made clear at the pretrial
hearing of January 4, 2008, that the number of subpoenas requested was
unreasonable, and VeVea never sought to accommodate the district court’s concern
by requesting fewer subpoenas. The record does not suggest that a request for a
5 reasonable number of subpoenas duces tecum, tendered with an explanation of the
need to subpoena certain witnesses for trial, would have been denied. All that is
before us is the district court’s denial of the requested 73 subpoenas duces tecum in
what the court correctly considered the trial of a petty offense. In these
circumstances, the district court’s determination was a proper exercise of its
“inherent power[] . . . to manage [its] cases and courtroom[] effectively . . . so as to
achieve the orderly and expeditious disposition of cases.” United States v. Kent, __
F.3d __, 2011 WL 2020853, *4 (9th Cir. May 24, 2011) (internal quotations
omitted).
6. At trial, the district court did not err by admitting into evidence cloned
computer hard-drives and testimony about their contents. We recognize that, for
purposes of the best evidence rule, data produced by an electronic device is a
“writing” subject to the rule. United States v. Diaz-Lopez, 625 F.3d 1198, 1202
(9th Cir. 2010), cert. denied, 131 S. Ct. 2918 (2011). But VeVea made no showing
that admission of “the duplicate[s] in lieu of the original[s]” was “unfair,” Fed. R.
Evid. 1003(2), so the district court did not err by admitting them. The cloned hard-
drives properly having been admitted into evidence, testimony about their contents
was unobjectionable. See United States v. Bennett, 363 F.3d 947, 953 (9th Cir.
2004).
6 7. VeVea is not entitled to a new trial under Brady v. Maryland, 373
U.S. 83 (1963), despite the post-trial disclosure that files residing on a clone of his
laptop computer’s hard-drive bore a date during the period that the laptop was
seized, because, even if evidence arguably favorable to VeVea was withheld in this
respect, VeVea has not shown “‘a reasonable probability’ that the result of the trial
would have been different if the [allegedly] suppressed [evidence] had been
disclosed.” Strickler v. Greene, 527 U.S. 263, 289 (1999).
8. We reject VeVea’s argument that he was denied an unbiased fact-
finder. The district court’s suggestion that defense counsel could call VeVea to
testify did not violate VeVea’s Fifth Amendment right against self-incrimination
because VeVea remained free to decline to testify. Further, the district court did
not impermissibly shift the burden of proof in making the factual finding that
VeVea did not explain certain inculpatory evidence. It is permissible to disbelieve
a defendant because his account reconciles only some, but not all, of the
inculpatory evidence. The record gives us no reason to doubt the district court’s
impartiality.
9. We reject VeVea’s argument that the evidence presented at trial does
not support the verdict. Viewing the evidence in the light most favorable to the
prosecution, we conclude that “‘[a] rational trier of fact could have found the
7 essential elements of the crime beyond a reasonable doubt.’” United States v.
Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
10. Because VeVea has completed his sentence, his challenges to the
conditions of his probation are moot. See United States v. Palomba, 182 F.3d
1121, 1123 (9th Cir. 1999). We partially dismiss his appeal for that reason.
11. VeVea’s remaining contentions, to the extent not expressly discussed
above, are rejected because we conclude that they lack merit.
AFFIRMED IN PART and DISMISSED IN PART.