United States v. Aboh ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4973
BENNET CHIKA ABOH, a/k/a Chika,
a/k/a JB,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-92-260-WN)
Submitted: January 20, 1998
Decided: April 22, 1998
Before WIDENER and WILKINS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William B. Purpura, Jeanne Canal, Baltimore, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, Christine Man-
uelian, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bennet Chika Aboh appeals from his convictions for conspiracy to
distribute and possession with intent to distribute heroin, distribution
of heroin, and aiding and abetting, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (1994), and 18 U.S.C. § 2 (1994). Aboh contends
that his right to a speedy trial was violated. Finding no error, we
affirm.
Aboh was convicted on August 13, 1993, and was sentenced to
three concurrent 121-month sentences. Aboh and his codefendant,
Romanus Nwaneri, appealed. This Court, finding that the district
court gave an improper jury instruction, reversed their convictions
and remanded for a new trial. The appellate mandate remanding the
case issued on February 8, 1996. Aboh's retrial began on October 16,
1996, and he orally moved to dismiss the indictment, arguing a viola-
tion of the Speedy Trial Act. The district court denied the motion. On
October 28, 1996, Aboh was convicted of the same offenses and
received the same sentence as in the first trial.
We review the legal conclusions of the district court's interpreta-
tion of the Speedy Trial Act de novo and review the factual findings
for clear error. United States v. Stoudenmire , 74 F.3d 60, 63 (4th Cir.
1996).
The Speedy Trial Act requires that if a defendant is to be tried
again following an appeal:
[T]he trial shall commence within seventy days from the
date the action occasioning the retrial becomes final, except
that the court retrying the case may extend the period for
retrial not to exceed one hundred and eighty days from the
date the action occasioning the retrial becomes final if
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unavailability of witnesses or other factors resulting from
passage of time shall make trial within seventy days imprac-
tical.
18 U.S.C. § 3161(e) (1994). The Act excludes from the computation
period, among other things: delay resulting from any pretrial motion,
from the filing of the motion through the disposition of such motion;
delay resulting from transportation of the defendant; delay resulting
from the absence of or unavailability of an essential witness; and any
period of delay resulting from a continuance by a judge 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." Id. §§ 3161(h)(1)(F), (h)(1)(H), (h)(3)(A), (h)(8)(A).
On appeal, Aboh contends that the district court should have dis-
missed the case against him because he was not brought to trial within
seventy days after the issuance of this Court's mandate remanding the
case for retrial. He contends that the district court's three continu-
ances, delaying the retrial 181 days from the date it should have com-
menced, constituted an unreasonable delay. Aboh asserts that the
district court failed to provide a factual basis supporting its decision
to extend the statutorily mandated seventy-day period.
The appellate mandate reversing Aboh's conviction and remanding
the case for a new trial was issued on February 8, 1996. The mandate
was received and docketed by the district court on February 12, 1996.
On February 13, 1996, after holding a status conference, the district
court, upon its own motion and pursuant to § 3161(e), determined that
it would be impractical to commence the retrial within the statutorily
mandated seventy-day period and postponed retrial until May 20,
1996. The district court found that: (1) due to the complexity of the
case,* court-appointed counsel for codefendant Nwaneri, who entered
his appearance for the first time on appeal, needed adequate time to
review the transcripts of the prior trial; (2) both counsel for Aboh and
Nwaneri had scheduling conflicts that made it impossible to try the
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*The first trial lasted three weeks and involved the presentation of
extensive wiretapped conversations recorded in a Nigerian dialect, physi-
cal evidence of the defendants' drug trafficking, and the testimony of
nine cooperating coconspirators.
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case before May 20, 1996; and (3) the Government needed additional
time to locate its nine witnesses, some of whom were no longer incar-
cerated and readily available to the Government. On May 13, 1996,
the district court postponed retrial until October 15, 1996, because
counsel for Nwaneri was engaged in another trial which was not
expected to conclude until early June. The district court found, pursu-
ant to § 3161(h)(8)(A), that the interest of justice was best served by
the continued representation of counsel familiar with the case, and
that, due to the complexity of the evidence, it would be impractical
and a waste of judicial resources to sever the defendants and try them
in two separate proceedings. The court found the period from May 20,
1996, to October 15, 1996, excludable from speedy trial calculations.
On October 9, 1996, the Government filed a motion in limine. The
district court took the motion under advisement and ruled on the
motion just prior to the commencement of trial on October 16, 1996.
The district court found that the period from October 9 through the
start of trial on October 16 was excluded from speedy trial calcula-
tions pursuant to § 3161(h)(1)(F). The district court also delayed
retrial again from October 15 to October 16, pursuant to
§ 3161(h)(3)(A), because transportation of defendant Nwaneri was
delayed by one day.
The district court, exercising its discretion pursuant to § 3161(e),
postponed Aboh's retrial beyond the statutorily mandated seventy-day
period but within the discretionary 180-day period. Taking all exclud-
able time into account, Aboh was retried within 102 days of the issu-
ance of the appellate mandate. See Stoudenmire , 74 F.3d at 63(excluding period from the day the motion is filed through the day the
district court holds a hearing on the motion for purposes of determin-
ing statutorily mandated period). Because the district court did not
exceed the discretionary 180-day period, we affirm.
Lastly, Aboh's assertion that his Sixth Amendment right to speedy
trial was violated, raised for the first time on appeal, lacks merit.
Because Aboh did not raise this issue in the district court, our review
is for plain error under Fed. R. Crim. P. 52(b). See United States v.
Olano, 507 U.S. 725, 732-34 (1993) (finding that error must be plain
under current law, affect substantial rights, and seriously affect fair-
ness, integrity, or public reputation of judicial proceedings). To show
that a delay in disposing of charges violated the defendant's Sixth
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Amendment right to a speedy trial, a court considers four factors:
(1) whether the delay was uncommonly long; (2) whether the gov-
ernment or the defendant is more to blame for the delay; (3) whether,
in due course, the defendant asserted his right to a speedy disposition;
and (4) whether the defendant suffered any prejudice as a result of
the delay. See United States v. Thomas, 55 F.3d 144, 148 (4th Cir.
1995). Aboh has failed to assert that he was prejudiced by any delay;
therefore, he has failed to demonstrate error, plain or otherwise.
Accordingly, we affirm Aboh's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid in
the decisional process.
AFFIRMED
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