USA v. Homer Richardson

Filing

OPINION and JUDGMENT filed: The judgment of the district court is AFFIRMED. Decision for publication pursuant to local rule 206. (THIS DECISION WAS ORIGINALLY ISSUED AS AN "UNPUBLISHED DECISION" ON MAY 15, 2012. THE COURT DESIGNATED THE OPINION AS ONE RECOMMENDED FOR FULL-TEXT PUBLICATION.) Alice M. Batchelder, Chief Circuit Judge; David W. McKeague (AUTHORING), Circuit Judge; Gordon J. Quist, U.S. District Judge for the Western District of Michigan, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0161p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-3127
v.
>
,
HOMER LEE RICHARDSON,
Defendant-Appellant. N
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:08-cr-118-1—Sandra S. Beckwith, District Judge.

Decided and Filed: May 15, 2012*
Before: BATCHELDER, Chief Judge; McKEAGUE, Circuit Judge; QUIST, Senior
District Judge.**
_________________
COUNSEL
ON BRIEF: Charles E. McFarland, New Castle, Kentucky, for Appellant. Frank P.
Cihlar, Gregory Victor Davis, Rita G. Calvin, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C. for Appellee.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge.

Defendant-Appellant Homer Richardson

(“Richardson”) appeals the district court’s order denying his motion to dismiss based on
the Speedy Trial Act. Richardson claims that the court failed to sufficiently justify its
decision to exclude days stemming from six separate continuances from the speedy-trial

*

This decision was originally issued as an “unpublished decision” filed on May 15, 2012. The
court has now designated the opinion as one recommended for full-text publication.
**

The Honorable Gordon J. Quist, United States Senior District Judge for the Western District of
Michigan, sitting by designation.

1

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clock pursuant to 18 U.S.C. § 3161(h)(7)(A). For the reasons that follow, we AFFIRM
the district court’s order.
I. BACKGROUND
During the late 1990s and early 2000s, Richardson promoted fraudulent trust
products in connection with his employment at the Aegis Company. He also interfered
with Internal Revenue audits, aided in the filing of a false individual income tax return,
and signed his own false tax returns.
Richardson, along with his co-defendant in this case, Robert Welti (“Welti”), and
four others were previously indicted on April 7, 2005 for various violations of tax law.
Richardson was charged with conspiracy to defraud the United States, aiding and
assisting in the filing of a false income tax return, and three counts of filing a false
income tax return. Two of Richardson’s co-defendants in that case pled guilty, but the
district court dismissed the indictment without prejudice as to the other defendants
(including Richardson) due to a violation of the Speedy Trial Act.
Richardson and Welti were indicted again on November 6, 2008. Richardson
was arraigned on December 1, 2008, and entered a plea of not guilty. During the course
of preparing for trial, numerous motions were filed on behalf of Richardson, and the case
was continued six times. On June 23, 2010, Richardson filed a motion to dismiss due to
a speedy trial violation, which was denied on June 28, 2010. The same day, the district
court accepted Richardson’s conditional guilty plea under Federal Rule of Criminal
Procedure 11(a)(2) in which he preserved the right to appeal the court’s disposition as
to his Speedy Trial Act claim. Richardson conditionally pled guilty to (1) one count of
obstructing or impeding the due administration of the IRS in violation of 26 U.S.C.
§ 7212(a); (2) one count of aiding and abetting the filing of a false income tax return in
violation of 26 U.S.C. § 7206(2); and (3) three counts of filing false income tax returns
in violation of 26 U.S.C. § 7206(1). He was sentenced to 30 months’ incarceration, each
count to run concurrently, and was allowed to continue his release pending the outcome
of his appeal. This timely appeal followed.

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II. ANALYSIS
The Speedy Trial Act of 1974, 18 U.S.C. § 3161, requires that a criminal
defendant’s trial commence within seventy days after he is charged or makes an initial
appearance, whichever is later, and entitles the defendant to dismissal of the charges if
that deadline is not met. § 3161(c)(1). But because criminal cases vary widely, and there
are valid reasons for delay in some cases, the Act excludes delays due to certain,
enumerated events from the seventy-day period. § 3161(h); Zedner v. United States,
547 U.S. 489, 497–98 (2006). As relevant here, it excludes:
Any period of delay resulting from a continuance granted by any judge
on his own motion or at the request of the defendant or his counsel or at
the request of the attorney for the Government, if the judge granted such
continuance on the basis of his findings that the ends of justice served by
taking such action outweigh the best interest of the public and the
defendant in a speedy trial.
§ 3161(h)(7)(A). When granting such an ends-of-justice continuance, a district
court should weigh factors such as whether a miscarriage of justice could result, the
complexity of the case and time needed for preparation, and the continuity of counsel.
§ 3161(h)(7)(B).
But the Act also warns that a delay resulting from an ends-of-justice continuance
will not be excludable from the seventy-day period “unless the court sets forth, in the
record of the case, either orally or in writing, its reasons for finding that the ends of
justice served by the granting of such continuance outweigh the best interests of the
public and the defendant in a speedy trial.” § 3161(h)(7)(A). It is upon this provision
that Richardson relies.
Richardson argues that the district court did not properly form and articulate its
reasons for excluding six continuances from the speedy-trial clock in the interests of
justice. In Zedner v. United States, 547 U.S. at 506–508, the Supreme Court considered
the statutory requirement that district courts place the reasoning behind ends-of-justice
continuances on the record. The Court noted that

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[a]lthough the Act is clear that the findings must be made, if only in the
judge’s mind, before granting the continuance (the continuance can only
be “granted ... on the basis of [the court’s] findings”), the Act is
ambiguous on precisely when those findings must be “se[t] forth, in the
record of the case.” However this ambiguity is resolved, at the very least
the Act implies that those findings must be put on the record by the time
a district court rules on a defendant’s motion to dismiss.
Id. at 506–507. The court expressed that the best practice would be “for a district court
to put its findings on the record at or near the time when it grants the continuance.” Id.
at 507 n.7. The Court held that, “without on-the-record findings, there can be no
exclusion [pursuant to section 3161(h)(7)(A)].” Id. at 507. The district court in Zedner
had not made any on-the-record findings at the time it granted the continuance, and so
the Court held that the district court’s later “passing reference to the case’s complexity”
when it denied the defendant’s motion to dismiss would not suffice. Id. Richardson
correctly asserts that Zedner underscores the statutory requirement that district courts
make on-the-record findings to justify the decision to grant ends-of-justice continuances.
However, for the reasons that follow, the district court in this case fulfilled that
requirement.
A district court’s legal interpretation of the Speedy Trial Act is subject to de
novo review. See, e.g., United States v. Robinson, 887 F.2d 651, 656 (6th Cir. 1989).
However, whether the district court has properly determined if certain days should be
included or excluded from the trial clock is reviewed for an abuse of discretion. United
States v. Howard, 218 F.3d 556, 563 (6th Cir. 2000); see also United States v. Tinson,
23 F.3d 1010, 1012 (6th Cir. 1994). Richardson argues that the district court improperly
excluded days from the speedy-trial clock stemming from six continuances. We
consider each continuance in turn.
A. Ends-of-Justice Continuances
“To conduct a proper ends-of-justice analysis when granting a continuance, a
district court must state in the record, either orally or in writing, its reasons for
determining that granting the continuance outweighs the public’s and the defendant’s

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interest in a speedy trial, based on the factors set forth in (h)(7)(B).” United States v.
Stone, Nos.10-1748, 10-1753, 2012 WL 432251, at *3 (6th Cir. Feb. 13, 2012) (citing
18 U.S.C. § 3161(h)(7)(A)).

“The court does not have to give its reasons

contemporaneously with the grant of the continuance; it need only give the reasons no
later than the ruling on the defendant’s motion to dismiss on Speedy Trial Act grounds.”
Id. (citing United States v. Crawford, 982 F.2d 199, 204 (6th Cir. 1993)); see also
Zedner, 547 U.S. at 507 n.7 (considering a contemporaneous statement to be “best
practices”). In reviewing each continuance, we consider whether (1) the district court
abused its discretion in finding that the continuance should be excluded; and (2) the
district court properly placed its reasoning on the record. We find no abuse of
discretion.
1. The January 7, 2009 Continuance
The trial was initially set for January 12, 2009. On December 17, 2008,
Richardson, who was proceeding pro se at the time, moved for a continuance of the trial
date. On December 31, 2008, Richardson asked to be represented by counsel, and the
court made arrangements to appoint an attorney Richardson had chosen. The court
suggested a trial date of March 30, 2009, and Richardson’s newly appointed counsel
indicated that he could be prepared by then. At the close of the conference, the court
noted that the continuance was in the interest of justice for both Richardson and codefendant Welti, stating “I will designate the period between now and the current trial
date of March 30th as a period of delay that is in the interest of justice, and that the
continuance outweighs the best interest of the public and the two defendants in this case
in a speedy trial.” (Page ID # 1768.) The court also noted that the documents were
voluminous, but many of them were the same as the evidence produced in the first
indictment.

Richardson responded that his counsel needed time to review the

documents. On January 7, 2009, the court entered an order stating that the delay was in
the interests of justice because the defendants needed time to review the substantial
evidence in the case.

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“Defense counsel’s need for additional time to prepare an unusually complex
case is an appropriate reason for granting a continuance.” Stone, 2012 WL 432251, at
*3. Therefore, there is no abuse of discretion in subtracting this continuance from the
speedy-trial clock. Furthermore, the court put its specific reasoning—that the defense
needed time to review records and prepare for trial—on the record three separate times,
so this ends-of-justice continuance was properly excluded from the speedy-trial clock.
Zedner, 547 U.S. at 506–508.
2. The March 16, 2009 Continuance
On March 16, 2009, Richardson’s counsel made an oral motion to continue the
trial in order to further review discovery produced by the government. During this
conference, Richardson’s counsel stated that he was having various problems with
discovery in the case. He stated that he was having problems obtaining discovery from
Richardson’s former counsel in the earlier case, he referenced the voluminous nature of
the discovery, his trouble finding and obtaining certain discovery materials, the
confusing ways in which certain discovery materials had been labeled, and trouble
searching through discovery documents.
After listening to the various reasons Richardson’s counsel set forth in support
of the continuance, the court asked Richardson’s counsel “[i]s the bottom line here that
you’re not going to be ready . . . by the 30th?” (Page ID # 1786.) In response,
Richardson’s counsel stated “[t]here is no way, shape or form.” (Id.) When the judge
asked Richardson’s counsel when he would be ready for trial, he said that he was
thinking ninety days, but that he should be ready to go in sixty. Based on this context,
the court found a continuance served the ends of justice for both Richardson and Welti,
stating “it certainly seems that the ends of justice are served by rescheduling the trial and
affording [Richardson’s counsel] an adequate time to prepare and assess the case, and
that outweighs the public and the government’s interest in a trial, as well as the
defendants’—plural—interest in a speedy trial.” (Page ID # 1795.) Accordingly, the
court excluded the time from March 16 to June 8, 2009, from the speedy-trial clock, and
the trial was set for June 8, 2009.

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The court’s explanation for excluding this time from the speedy trial clock was
sufficient under Zedner, 547 U.S. at 506–508, because given the context, the record
clearly establishes that a continuance serves the ends of justice. Furthermore, in its order
denying Richardson’s motion to dismiss under the Speedy Trial Act, the court restated
that “the continuance was necessary in the ends of justice to allow proper trial
preparation.” (Page ID # 1436.) This ends-of-justice continuance was also properly
excluded. See United States v. Stewart, 628 F.3d 246, 253 (6th Cir. 2010) (upholding
an ends-of-justice consideration for a continuance where defense counsel explained in
the unopposed motion that the case’s complexity warranted continuance, and where the
court stated on the record that the continuance was in the interest of justice because
counsel needed more time to prepare).
3. The June 9, 2009 Continuance
Richardson moved for another continuance on May 14, 2009, claiming that the
volume of discovery documents coupled with trouble getting documents from previous
counsel and viewing items on a hard drive prevented him from being prepared. The
Government did not oppose that motion, but suggested that ninety days would be
adequate. At the June 9, 2009 hearing on the motion, Richardson’s counsel spoke at
length, emphasizing the complexity of the trusts involved in the case, and requested a
continuance of six months. The court indicated that, if it were to grant the six-month
continuance, then it would not entertain any more continuances based on Richardson’s
counsel’s need for time to prepare.
In response to the argument, the court made the following finding:
And the new schedule is in response to [Richardson’s counsel’s] motion
in the interest of justice, and it supersedes and outweighs the
government’s interest in a speedy trial, the defendant’s interest in the
speed of the trial, and the public’s interest in a speedy trial in order to
permit [Richardson’s counsel] to adequately prepare for the trial, or
whatever other strategy or decision he might suggest to Mr. Richardson.

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(Page ID # 827.) The court confirmed with Richardson, co-defendant Welti, and the
Government that each agreed to the extension and the new schedule, which set the trial
date for January 5, 2010.
The court correctly found that this continuance was in the interests of justice and
stated its findings on the record contemporaneously with that finding. Thus, the court
met the requirements of Zedner, 547 U.S. at 506–508. No further statement from the
court was needed. See id. Accordingly, this continuance was also properly excluded
from the speedy-trial clock.
4. The November 30, 2009 Continuance
On October 12, 2009, co-defendant Welti filed a motion requesting that his
stand-by counsel be appointed as his primary attorney. But Welti’s stand-by counsel
instead moved to withdraw from the case in order to take a new position with the Federal
Public Defender’s Office. In light of this situation, new counsel was appointed for
Welti.
On November 6, 2009, Richardson moved to continue the case again, this time
for “at least 3 months, or until at least April 6, 2010 to enable Richardson and his
counsel to properly prepare for his defense.” (Page ID # 900.)
At the next status conference, on November 17, 2009, Welti’s new counsel
moved for a continuance. Then Richardson’s counsel stated that he had recently learned
about thirty boxes of discovery materials he had not yet reviewed, and “that continuance
will enable us to go through those boxes.” (Page ID # 983.) In response, the court
addressed the Government, stating that it would not allow “the trial date to be
manipulated—for lack of a better term—by the government in its failure to produce
discovery in a timely fashion.” (Page ID # 984.) A discussion followed that clarified
the status of the discovery materials. Welti’s counsel suggested a severance so that
Richardson’s case could move forward independently of Welti’s, and Richardson
responded “[i]f we could have effective assistance of counsel, that would be fine. But
I don’t know how we could have effective [assistance] if he’s not ready.” (Page ID #

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997–98.) Thus, Richardson not only refused to sever the cases, he also acknowledged
that he was not prepared for trial and would need the extra time given by the
continuance.
The court filed a written order on November 30, 2009, granting both defendants’
motions for continuance. The court found that “the ends of justice in granting this
continuance to allow proper trial preparation outweighs the Defendants’ and public’s
interest in a speedy trial.” (Page ID # 978.)
The court’s statements on the record and written findings articulated in its
contemporaneous order amount to a proper ends-of-justice finding, particularly when
considered in the context of Richardson’s own motion to continue and his refusal to
sever his case from Welti’s. See Stewart, 628 F.3d at 253; see also Zedner, 547 U.S. at
506–508. Therefore, this continuance was properly excluded from the speedy-trial
clock.
5. The April 13, 2010 Continuance
On March 24, 2010, Welti’s new counsel asked for a few more weeks in order
to review discovery and prepare for trial, which the court granted, stating that the need
for the defense to be prepared for trial outweighed the interest in a speedy trial. At a
conference on April 13, 2010, the parties met with the court to set a date for trial, which
was scheduled for June 29, 2010. The court excluded from the speedy-trial clock the
time between April 13, 2010 and June 29, 2010, finding that Welti’s counsel needed that
time to fully prepare for trial. Considered in the context of the conference, in which
Welti’s counsel stated that he had an ongoing trial in Kentucky that would prevent him
from being prepared for this trial before the June 29 date, and further considering that
Richardson had expressly declined to sever the cases, this continuance was properly
excluded in the interests of justice. See Stewart, 628 F.3d at 253; see also Zedner, 547
U.S. at 506–508. In its order denying Richardson’s motion to dismiss on Speedy Trial
Act grounds, the court reiterated that the continuance was necessary to allow proper trial
preparation.

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Based on this analysis, and in light of the general rule that only one speedy-trial
clock governs both defendants where the court has not severed the cases, 18 U.S.C.
§ 3161(h)(7); see also see United States v. Cope, 312 F.3d 757, 776 (6th Cir. 2002), the
district court did not abuse its discretion in granting each continuance complained of
here. Moreover, Richardson makes no attempt in his briefs to argue that he was
prejudiced by the various continuances, the majority of which he requested. “[I]n order
to obtain a reversal of a conviction on the basis of a violation of the Speedy Trial Act
where a district court exercises its discretion to grant a continuance for the ends of
justice, a defendant must show ‘actual prejudice.’” Stewart, 628 F.3d at 254 (citing
United States v. Gardner, 488 F.3d 700, 718 (6th Cir. 2007) (refusing to overturn the
defendant’s conviction based on a violation of the Speedy Trial Act where the “period
of delay occasioned by the granting of [two of the defendants’] motions was
reasonable”)). Accordingly, Richardson’s claim of error is without merit.
B. Failure to Set a Date Certain for Trial
Richardson also complains the continuance granted on November 30, 2009 was
open-ended and the court did not balance the relevant factors militating against setting
a date certain for trial. The Speedy Trial Act requires that a date certain for trial be set
“at the earliest practicable time.” 18 U.S.C. § 3161(a). However, this Court, along with
many other circuits, permits reasonable open-ended continuances. See, e.g., United
States v. Sabino, 274 F.3d 1053, 1064–65 (6th Cir. 2001) (“[W]e will follow the rule of
the First, Third, Fifth, and Tenth Circuits and hold that open-ended ends-of-justice
continuances for reasonable time periods are permissible in cases where it is not possible
to . . . set specific ending dates.”) (amended and superceded on other grounds by 307
F.3d 446 (en banc)).
Here, a date certain was set at the earliest practicable time. In granting the
November 30, 2009 continuance, the district court left the date for trial open as a result
of this continuance at Welti’s counsel’s request, a request to which Richardson agreed.
At the time of the hearing, Welti’s counsel had just joined the case, and could not
inform the court with any certainty of when he could be prepared for trial. Specifically,

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the court asked Welti’s counsel “[w]ell, you think you can be ready in the spring?” and
Welti’s counsel responded “I don’t know . . . I will be filing a motion for a continuance
of the trial date when I get a handle—some handle at least on the documents. I would
suggest that . . . we have another get-together to discuss where we are, where I am in
particular . . . rather than arbitrarily pick a trial date.” (Page ID # 981–82.) Richardson
was asked whether he would like to sever his case from Welti’s in order to speed up the
process, and Richardson declined, acknowledging that his attorney needed more time to
prepare. After some discussion, the court noted that “the next time we meet, we’re
gonna make a schedule that is going to be hard and fast” and scheduled a conference for
March 24, 2010. (Page ID # 998.)
Given this context, particularly the fact that Richardson did not agree to sever his
case from Welti’s, the March 24, 2010 conference was the “earliest practicable time”
that a date certain could be set. See § 3161(a); see also Zedner, 547 U.S. 498–99 (stating
that courts have discretion to “accommodate limited delays for case-specific needs”).
Accordingly, this claim of error also fails.
III. CONCLUSION
Richardson has not shown that the continuances he contests—most of which he
requested—prejudiced him in any way. Moreover, the district court adequately set forth
the ends-of-justice basis for each of the continuances so as to exclude them from the
speedy-trial clock and set a date certain for trial at the earliest practicable time.
Accordingly, the district court’s order is AFFIRMED.