TALLMAN, Circuit Judge.
Defendant-Appellant Chen Chiang Liu appeals his Nevada district court convictions for conspiracy to import, transfer, and sell high quality counterfeit United States currency. Liu contends that his trial was not timely held, in violation of the Speedy Trial Act ("STA"), 18 U.S.C. § 3161, et seq. He further argues that the district court plainly erred when it failed to give a multiple conspiracy jury instruction and a specific unanimity jury instruction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The evidence at trial showed that Liu was involved in a sophisticated international enterprise to import high quality counterfeit currency into the United States in $100 denominations called "supernotes." The quality of the supernotes was so good that the counterfeit bills could pass undetected through slot machines and cash-counting machines in Las Vegas casinos. The conspirators obtained the supernotes through contacts in either Russia or North Korea, and usually the purchaser would travel to Hong Kong to receive the counterfeit currency. The conspirators charged either thirty-five or forty cents on the dollar for the supernotes.
Federal agents first encountered this enterprise through an undercover agent's contacts with a member of the conspiracy. The undercover agent met with both Liu
On August 17, 2005, a grand jury in the Central District of California returned an indictment (the "California indictment") charging Liu and three co-defendants with one count of conspiring to (1) "make, deal, and possess counterfeit United States currency outside of the United States," in violation of 18 U.S.C. § 470, and (2) "buy, sell, exchange, transfer, receive, and deliver counterfeited obligations and securities of the United States," in violation of 18 U.S.C. § 473. Liu appeared in federal district court in Los Angeles to respond to the California indictment on August 22, 2005, and was arraigned on August 30, 2005. The district court released Liu pending trial; the trial date was continued numerous times at the joint request of Liu and the prosecution.
While Liu was on pretrial release in California, he continued his participation in the conspiracy. Although his pretrial release in California imposed travel restrictions, Liu repeatedly requested permission to travel to Las Vegas. During at least one of these permitted trips, Liu met with a new purchaser, Patrick Schwenke, to rearrange a prior deal regarding counterfeit currency. This meeting was necessitated by the arrests of the coconspirators with whom Schwenke had previously dealt. It is clear that Liu was also traveling to Las Vegas for the purpose of passing counterfeit currency because his net loss at a single casino was over $1.9 million for the period from February 2006 to July 2007, notwithstanding the fact that Liu submitted a financial affidavit upon arrest showing no appreciable wealth. On July 31, 2007, Liu was arrested again, this time in Las Vegas with his wife, Min Li Liu, after being caught attempting to pass counterfeit currency through casino slot machines.
Liu was then indicted in the District of Nevada on August 1, 2007. This indictment charged Liu and his wife with one count of passing, possessing, and concealing counterfeit securities in violation of 18 U.S.C. § 472 and one count of conspiring to pass, possess, and conceal counterfeit securities in violation of 18 U.S.C. § 371. The Las Vegas grand jury returned a first superseding indictment, which dropped the conspiracy charge, on December 12, 2007, and a second superseding indictment ("SSI") was filed in that district on April 2, 2008.
Liu filed a motion to dismiss count one of the SSI, the conspiracy charge, in Nevada district court, arguing that it was "merely an extension" of the California indictment and that the failure to timely prosecute him on the California indictment violated his rights under the STA.
The district court in Nevada conducted a jury trial and entered a judgment of acquittal for Min Li Liu at the close of the prosecution's case. Due to the dismissal of Min Li, the district court altered the jury instruction regarding multiple counts and multiple defendants and added jury instructions about translation and mere presence. Thereafter, counsel for both the prosecution and Liu stipulated to the jury instructions, and the district court read the instructions to the jury. The jury convicted Liu on both counts contained in the SSI, and the district court entered judgment against Liu on March 12, 2009. Liu was sentenced to 151-months imprisonment. He now timely appeals his convictions.
Liu's first argument on appeal is that the Nevada district court erred when it denied his motion to dismiss the conspiracy count of the SSI. Liu argues that the conspiracy charged in the SSI was the same conspiracy charged in the California indictment. Therefore, he contends that the timeline imposed by the STA was violated because he was indicted in California in August 2005, but was not brought to trial until September 2008. We review a district court's application of the STA de novo, United States v. Clymer, 25 F.3d 824, 827 n. 1 (9th Cir.1994), and its factual
If a defendant enters a plea of not guilty, the STA mandates that trial must commence within seventy days of either the date on which the indictment was filed or the date on which the defendant first appeared before the court, whichever is later. 18 U.S.C. § 3161(c)(1). To determine whether the STA was violated, we must first determine when the clock began running. United States v. King, 483 F.3d 969, 972 (9th Cir.2007). The district court applied the five factors announced in Arnold v. United States, 336 F.2d 347, 350 (9th Cir. 1964), to determine whether the conspiracy charged in the California indictment was the same as the conspiracy charged in the SSI.
An analysis of the Arnold factors is unnecessary, however, for purposes of this appeal. We assume, without deciding, that the two indictments charged Liu with the same overarching conspiracy although the SSI supplemented new facts that would fall under each Arnold factor. If so, Liu's STA clock began running on the day he first appeared in court under the California indictment—August 22, 2005.
Assuming that Liu was charged with the same conspiracy in the two indictments, we must now determine whether the time that lapsed between Liu's first appearance in court in California and his trial in Nevada violated the STA. In King, we held that in certain circumstances the STA clock resets upon the filing of a superseding indictment that adds a new defendant. 483 F.3d at 973. We relied on the Supreme Court's statement that "`[a]ll defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant.'" Id. (quoting Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986)). We also recognized that not allowing the STA clock to restart upon the addition of a codefendant might result in the STA being used as a vehicle for requiring the government to prosecute codefendants piecemeal. Id. (quoting United States v. Barnes, 251 F.3d 251, 258 (1st Cir.2001)).
The addition of a codefendant, however, does not automatically restart the STA clock. Our decision to do so in King relied on the "reasonableness of the delay" in adding the codefendant and "the absence of bad faith on the part of the government." Id. at 974. These requirements implement the Supreme Court's directive that "defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant." Henderson, 476 U.S. at 323 n. 2, 106 S.Ct. 1871 (emphasis added). If the delay is reasonable and there is no bad faith, the application of defendant-specific STA timelines would frustrate the efficiency
If we apply our holding in King, Liu's STA clock under the California indictment reset upon the addition of his wife, Min Li, to the SSI. There is no evidence in the record before us to suggest that the delay between the filing of the California indictment and the addition of Min Li through the filing of the SSI was unreasonable. It is evident from the numerous joint requests to continue trial filed with the district court in California that the investigation of this conspiracy, as well as the preparation for trial, was complex. This was a sophisticated worldwide conspiracy to import high quality counterfeit United States currency. Also, Liu continued to conduct the activities of the conspiracy while he was on pretrial release in California. The case kept evolving after the filing of the California indictment because the conspiracy continued its illegal operations. Consequently, any delay in the prosecution of Liu resulting from the ongoing nature of the conspiracy was reasonable.
Additionally, there is no indication in the record that the government knew of Min Li's alleged participation in the conspiracy until July 31, 2007, the day she was arrested in Las Vegas for attempting to pass counterfeit currency through slot machines. The nine-month delay between the day Min Li was arrested and the filing of the SSI in Nevada adding her to the conspiracy first outlined in the California indictment is reasonable given the multijurisdictional nature, the continuation of new illegal acts in furtherance, and the difficulty of investigating this farflung conspiracy.
Because the delay in the filing of the SSI that named another defendant was reasonable, and because there is no evidence of bad faith on the part of the government, Liu's STA clock restarted on April 2, 2008. The district court excluded all of the time between April 2 and September 8, 2008, when the case proceeded to trial, under 18 U.S.C. § 3161(h)(7)(A).
Liu alleges that the district court committed reversible error by failing to give a multiple conspiracy jury instruction and a specific unanimity jury instruction. Liu acknowledges that we must apply plain error review to his challenges because he offered no objection to the proposed jury instructions at the time they were given. See Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Under our plain error standard of review, reversal is warranted when (1) there is error, (2) that is plain, and (3) that affects substantial rights. Id. We should correct plain error only if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
Liu asserts that he was entitled to a multiple conspiracy instruction because a reasonable juror could have found
The district court did not err when it failed to give a multiple conspiracy instruction because there was no potential for spillover guilt in this case. At the time the district court gave the jury its instructions, Liu was the sole defendant. The district court had previously granted Min Li's motion for a directed verdict of acquittal because there was no evidence "showing she had knowledge [of] or involvement" in the conspiracy. Consequently, even though Min Li was a codefendant during the government's presentation of its case, the district court explicitly found that there was no evidence supporting the allegation that Min Li was involved in the conspiracy. The lack of evidence as to Min Li's involvement minimizes any potential for spillover guilt to Liu. It likewise removes the possibility that Liu was involved in only a minor conspiracy with Min Li that was unrelated to the overarching conspiracy. See generally id. at 1317-18.
Liu was not entitled to a multiple conspiracy instruction. Thus, the district court did not plainly err in failing to give one.
Liu also claims that he was entitled to a specific unanimity jury instruction as to which overt act he committed in furtherance of the conspiracy. Ordinarily, a general unanimity instruction is sufficient to protect a defendant's right to a unanimous verdict. United States v. Echeverry, 719 F.2d 974, 974 (9th Cir. 1983). A general unanimity instruction is not sufficient if it appears "that there is a genuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts." Id. at 975.
Here, the district court gave a general unanimity jury instruction; it also directed the jury that it must agree on the "particular crime which the conspirators agreed to commit." The district court did not, however, specifically instruct the jury that it must unanimously agree as to which overt act was committed in furtherance of the conspiracy.
The district court did not err when it denied Liu's motion to dismiss the SSI for violation of the STA. It did not plainly err by failing to give a multiple conspiracy or a specific unanimity jury instruction.