Opinion
Submitted September 12, 1995.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submission Vacated Oct. 13, 1995.
Resubmitted Oct. 7, 1996.
Appeal from the United States District Court for the District of Hawai'i, No. CR-94-00748-02-HMF; Harold M. Fong, District Judge, Presiding.
D.Hawai'i
AFFIRMED.
Before: HALL, KOZINSKI and HAWKINS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
Cuong Thai was convicted of conspiracy, aiding and abetting and possession with intent to distribute crystal methamphetamine. He was sentenced to 151 months in prison. He appeals his conviction and sentence.
We vacated submission pending the decision of the United States Supreme Court on whether civil forfeiture can constitute punishment for purposes of the Double Jeopardy Clause. In holding that it cannot, the Court found "[m]ost significant ... [that civil forfeiture provisions,] while perhaps having certain punitive aspects, serve important nonpunitive goals." United States v. Ursery, 116 S.Ct. 2135, 2148 (1996). In light of Ursery, Thai's claim that his prosecution following civil forfeiture violated the Double Jeopardy Clause must fail.
We consider his other claims in turn:
Speedy Trial Act Thai claims that the Speedy Trial Act was violated because 103 days elapsed between indictment and trial. Courts can grant continuances even beyond the speedy trial deadline if the "ends of justice [are] served." 18 U.S.C. § 3161(h)(8)(A). However, continuances "because of general congestion of the court's calendar" are barred. 18 U.S.C. § 3161(h)(8)(C). Here, the principal reason for continuance was to give a newly-assigned Assistant U.S. Attorney time to prepare for trial. See TR (May 6, 1994) at 3-4, 12. At the time the continuance was granted, the prosecutor was new to a case involving three defendants. We are satisfied that the "ends of justice" were served.
The continuance was granted on May 6, 1994. Co-defendant Garcia entered his guilty plea on May 16, Rivera on June 22.
Drug Evidence Stipulation Thai claims it was error for the court to accept a stipulation as to the quantity and purity of the narcotics seized. But Thai's counsel agreed to the stipulation in open court, in Thai's presence. See TR (July 6, 1994) at 128. Though stipulations tantamount to guilty pleas may require express defendant approval, lesser stipulations entered in open court in the defendant's presence are binding. United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir.1980), cert. denied, 450 U.S. 934 (1981). Contrary to Thai's suggestion, no rule in the Ninth Circuit requires the district judge to address the defendant directly before accepting a stipulation. Id. Acceptance of the stipulation was not error.
Agent Aiu's Statement Thai requested a continuance, mid-trial, to allow him to call a vacationing DEA Agent. The Agent had taken a statement from codefendant Rivera to the effect that Rivera's mother was the source of the narcotics. On the stand, Rivera stated that he'd "mentioned" his mother to the agent, but insisted that the real source of the drugs was Thai.
When it became clear that it might be difficult to bring the Agent back to Hawaii during the trial, the government offered his telephonic testimony. Alternatively, the government offered to stipulate to the contents of Aiu's report; Aiu stated that he didn't remember the incident and would have to testify from the report in any case. The defense rejected these offers, either of which would have reduced the prejudice to the defendant. Further, having cross-examined Rivera, Thai was able to present his theory that, in implicating Thai, Rivera was lying to protect his mother and her boyfriend.
The court was required to weigh the inconvenience to the court and the jury of a continuance against the prejudice to the defendant of denying the request. While several factors weighed in favor of the continuance, it is clear from the record that the decision was based on a proper exercise of the judge's discretion.
Sentencing Thai argues that the district court should have granted a downward departure "based upon [a] unique combination of factors, including aberrant behavior and meaningful lack of youthful guidance." Appellant's Br. at 31. It is clear the district judge knew he had the power to depart and exercised discretion not to. "[A district] court's discretionary decision not to depart ... is not reviewable on appeal." United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990).
AFFIRMED.