Filed: May 13, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0171p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-2318 v. , > - Defendant-Appellant. - SAFI SOBH, - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 04-80480-011—Patrick J. Duggan, District Judge. Argued: April 30, 2009 Decided and Filed: May 13, 2009 Before: GUY, GILMAN, and COOK, Ci
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0171p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X Plaintiff-Appellee, - UNITED STATES OF AMERICA, - - - No. 07-2318 v. , > - Defendant-Appellant. - SAFI SOBH, - N Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 04-80480-011—Patrick J. Duggan, District Judge. Argued: April 30, 2009 Decided and Filed: May 13, 2009 Before: GUY, GILMAN, and COOK, Cir..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0171p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 07-2318
v.
,
>
-
Defendant-Appellant. -
SAFI SOBH,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-80480-011—Patrick J. Duggan, District Judge.
Argued: April 30, 2009
Decided and Filed: May 13, 2009
Before: GUY, GILMAN, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Laura Jane Durfee, INDIANA UNIVERSITY SCHOOL OF LAW,
Bloomington, Indiana, for Appellant. Cynthia Oberg, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Laura Jane Durfee, INDIANA
UNIVERSITY SCHOOL OF LAW, Bloomington, Indiana, Gregory A. Castanias, JONES
DAY, Washington, D.C., Darren Andrew Craig, FROST BROWN TODD, Indianapolis,
Indiana, for Appellant. Cynthia Oberg, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Defendant Safi Sobh was convicted following
a jury trial on one count of conspiracy, 18 U.S.C. § 371, and one count of aiding and abetting
bank fraud, 18 U.S.C. § 1344. Defendant argues on appeal that the district court erred in
1
No. 07-2318 United States v. Sobh Page 2
denying his motions to dismiss the Superceding Indictment for violation of the Speedy Trial
1
Act, 18 U.S.C. §§ 3161-3162 (2006). Finding no violation, we affirm.
I.
On January 25, 2006, a Superceding Indictment was filed charging defendant
Sobh and six codefendants with conspiracy, bank fraud, identity theft, money laundering,
and forfeiture. Sobh was employed as a mortgage loan officer, owned and operated a
real estate company, and taught classes on mortgage financing. Sobh taught his
coconspirators how to falsify documents, secured falsely inflated appraisals, and
received a portion of the proceeds of the fraudulent loans. The conspiracy caused losses
of more than $3.2 million.
Sobh was in Canada when the Superceding Indictment was filed on January 25,
2006, and was not returned to the United States and arraigned until May 30, 2006. On
May 1, 2006, before Sobh was arraigned, the district court granted the other defendants
an ends-of-justice continuance of the trial date from May 2, 2006, until October 10,
2006. 18 U.S.C. § 3161(h)(8).
Then, on September 22, 2006, counsel for the government joined counsel for all
of the defendants in requesting an adjournment of the October trial date. The district
court granted the request, adjourned the trial to April 24, 2007, and determined that the
time until that date was excludable delay for purposes of the Speedy Trial Act. Although
Sobh’s counsel joined in that motion for continuance, Sobh later argued that he had not
consented to the adjournment. On November 13, 2006, Sobh filed a pro se motion to
dismiss the indictment due to a speedy-trial violation. On November 14, 2006, Sobh
filed a separate letter motion requesting that his retained counsel withdraw and that the
court appoint another lawyer to represent him. A hearing was held on the request for
new counsel on November 30, 2006, and an order granting the motion was entered on
December 1, 2006. The motion to dismiss, however, was not decided at that time, and
newly appointed counsel filed an amended motion to dismiss on February 14, 2007.
1
All references are to the 2006, pre-amendment, provisions of 18 U.S.C. §§ 3161-3162.
No. 07-2318 United States v. Sobh Page 3
The district court denied Sobh’s motion to dismiss on March 29, 2007, and
denied the motion for reconsideration on April 18, 2007. Sobh also filed a renewed
motion for bond pending trial on April 17, 2007, which was denied following a bond-
review hearing held April 24, 2007. The joint trial of Sobh and his only remaining
codefendant commenced on April 25, 2007, and concluded on May 15, 2007. Convicted
as charged, Sobh was sentenced to imprisonment for 120 months on count 1 and 60
months on count 2, to run concurrently, and was ordered to pay restitution of more than
$1.25 million. This appeal followed.
II.
The Speedy Trial Act essentially requires that a defendant be brought to trial
within 70 days from the date of indictment or arraignment, whichever is later, 18 U.S.C.
§ 3161(c), but provides that certain enumerated pretrial delays are excludable from the
70-day period, 18 U.S.C. § 3161(h)(1)-(9). If a defendant is not brought to trial within
that time, as extended, the indictment shall be dismissed, 18 U.S.C. § 3162(a)(2). We
have held that once a defendant makes a prima facie showing that more than 70 days
have passed, the government bears the burden of proving sufficient excludable time by
a preponderance of the evidence. United States v. Jenkins, 92 F.3d 430, 438 (6th Cir.
1996). In reviewing the denial of a motion to dismiss for violation of the Speedy Trial
Act, we review the district court’s interpretation of the Speedy Trial Act de novo and its
factual findings for clear error. United States v. Marks,
209 F.3d 577, 586 (6th Cir.
2000); United States v. Carroll,
26 F.3d 1380, 1390 (6th Cir. 1994); United States v.
Robinson,
887 F.2d 651, 656 (6th Cir. 1989).
Since Sobh’s first appearance occurred after his indictment, the period begins to
run from his arraignment on May 30, 2006, and that day is excluded from the 70-day
limit. United States v. Mentz, 840 F.2d 315, 326 (6th Cir. 1988). Absent excludable
delay, then, the 70-day period would end on August 8, 2006. The government maintains
that this entire period was excludable under § 3161(h)(7), which excludes “[a]
reasonable period of delay when the defendant is joined for trial with a codefendant as
to whom the time for trial has not run and no motion for severance has been granted.”
No. 07-2318 United States v. Sobh Page 4
This means that when multiple defendants are charged together, and no severance has
been granted, one speedy trial clock governs. United States v. Blackmon,
874 F.2d 378,
380 (6th Cir. 1989) (citing Henderson v. United States,
476 U.S. 321, 330 (1986)); see
also United States v. Cope,
312 F.3d 757, 776 (6th Cir. 2002). Moreover, the excludable
delay of one defendant is also excluded for his codefendants.
Blackmon, 874 F.2d at
380; United States v. Culpepper,
898 F.2d 65, 66-67 (6th Cir. 1990).
Sobh argues that because his arraignment “restarted” the speedy trial “clock” for
his codefendants, the May 1 order entered before his arraignment could not “toll” a
“clock” that would not “start running” for 29 more days. It is true, as Sobh argues, that
the cases relied upon by the government all involved claims by earlier-arraigned
codefendants whose speedy-trial time was measured by the arraignment of the last
defendant—not a speedy-trial claim made by the latest arraigned defendant. At the
same time, Sobh conceded that there were no cases in which the excludable delay of a
codefendant was disregarded because of the later arraignment of a codefendant. We
conclude that § 3161(h)(7) as well as the general rule that the excludable delay of one
codefendant is excludable delay for all codefendants, applies equally to earlier and later
arraigned codefendants. As a result, although the 70-day period started to run on May
31, 2006, the ends-of-justice continuance entered on May 1, 2006, (that continued the
trial date to October 10, 2006), remained effective. Accord Coviello v. United States,
287 F. App’x 503, 507 (6th Cir. 2008) (holding that the speedy-trial clock started March
23, when the latest codefendant joined for trial was arraigned, but that a change-of-plea
notice filed March 18 by another defendant resulted in excludable delay starting on
March 23 through the conclusion of the hearing on April 19); United States v. Story, 125
F. App’x 646, 650 (6th Cir. 2005) (holding that although the speedy trial clock began to
run when the last codefendant was arraigned on July 16, another defendant’s pending
pretrial motions resulted in excludable delay from July 16 until November 19).
No. 07-2318 United States v. Sobh Page 5
Accordingly, we find that the 70-day period did not elapse on August 8, 2006, as Sobh
maintains.2
Alternatively, Sobh argues that even if the 70-day period was tolled by the first
continuance, he was not bound by the second ends-of-justice continuance entered on
September 22, 2006, because his attorney entered the stipulation without his knowledge
or consent. In that regard, the district court found both that the stipulation by counsel
waived the right to challenge the delay and that, even if it did not, the delay was properly
excluded under § 3161(h)(8). By its terms, § 3161(h)(8)(A) does not require a
defendant’s consent to the continuance “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.”
For such a continuance to be excludable, the court must set forth its reasons,
orally or in writing, in the record of the case, § 3161(h)(8)(A), “at the very least . . . by
the time a district court rules on a motion to dismiss under § 3162(a)(2).” Zedner v.
United States, 547 U.S. 489, 507 (2006). The district court, in denying the motion to
dismiss, as amended, and the motion for reconsideration, set forth its reasons, including
defense counsel’s representation that because discovery “consist[ed] of over 3,200
pages of mortgage, bank, and credit company records, as well as physical evidence
recovered in searches and witness statements, counsel for Safi Sobh has not had
sufficient time to review the evidence, prepare a defense, or counsel his client on the
advisability of proceeding to trial.” In addition, counsel for all of the codefendants
requested additional time to prepare, and represented that several of the codefendants
continued to pursue fruitful plea negotiations and needed additional time to ascertain
how to proceed. Finally, the government joined in the request, citing conflicting trial
and professional commitments, as well as the unavailability of the primary case agent
to participate in trial preparation.
2
Although the government argues that there was additional excludable delay between July 7 and
August 30, 2006, due to its motion filed under seal regarding a possible conflict of interest, it is not
necessary to determine whether that period of delay was excludable.
No. 07-2318 United States v. Sobh Page 6
We find, and Sobh does not seriously dispute, that the district court set forth
reasons that reflect consideration of the factors to be considered under § 3161(h)(8), and
made an express finding that the ends of justice served by the continuance outweighed
the best interest of the public and the defendant in a speedy trial. As a result, the period
from September 22, 2006, through April 24, 2007, while overlapping the delay
excludable under the first continuance, is excludable delay that tolls the 70-day period
as to all the defendants joined for trial.
Finally, as the government maintains on appeal, even if the second continuance
did not result in excludable delay and the 70-day period began to run on October 10,
2006, all but 48 days were excluded between October 10, 2006, and the commencement
of trial on April 25, 2007, due to Sobh’s own pretrial motions. Any period of delay
resulting from other proceedings concerning the defendant are excluded in computing
the time within which trial must commence, including, “delay resulting from any pretrial
motion, from the filing of the motion through the conclusion of the hearing on, or other
prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(F). The government has
shown, and Sobh does not dispute, that periods from November 13, 2006, through March
29, 2007, and then from April 14, 2007, through commencement of trial on April 25,
2007, were excluded from the calculation as delay that resulted from Sobh’s own pretrial
motions for withdrawal of counsel (November 13, 2006, through December 1, 2006), to
dismiss the indictment (November 14, 2006, through March 29, 2007), for
reconsideration of the motion to dismiss (April 14, 2007, through April 18, 2007), and
for bond pending trial (April 17, 2007, through April 24, 2007).
Finding that Sobh was brought to trial within the 70-day period, as extended by
excludable delay, we AFFIRM.
