UNITED STATES of America, Plaintiff-Appellee, v. Cassandra B. NICKERSON, Defendant-Appellant.
No. 12-10534.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 12, 2013. Filed Oct. 1, 2013.
731 F.3d 1009
Id. at 67, 100 S.Ct. 915. We see no reason not to apply the same reasoning to
Therefore, it is of no moment that First‘s misdemeanor conviction was obtained without complying with the Sixth Amendment. The use of such a conviction to trigger the “civil disability” of possessing a firearm does not violate the Sixth Amendment, the Due Process Clause of the Fifth Amendment, nor the Equal Protection Clause of the Fourteenth Amendment.
IV. CONCLUSION
In sum, we hold that although the right to counsel in
REVERSED and REMANDED.
Therefore, although Congress expressed a heightened concern with the reliability of predicate misdemeanor convictions for
Pаul F. DeMeester (argued) and Treva Stewart, San Francisco, CA, for Defendant-Appellant.
Before: J. CLIFFORD WALLACE and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.*
OPINION
BERZON, Circuit Judge:
Appellant Cassandra B. Nickerson appeals from the District Court‘s affirmation of her conviction before a Magistrate Judge for three Class B misdemeanors: operating a motor vehicle while under the influencе of alcohol in violation of
I. Background
On January 6, 2008, at about 10:20 p.m., United States Park Police Officer April Ramos responded to an incident involving a car hitting a curb in the Presidio of San Francisco. At the scene, Officer Ramos saw Nickerson standing next to a disabled vehicle. After Nickerson failed field sobriety tests and preliminary blood alcohol screening tests, Officer Ramos placed her under arrest and transported her to the police station.
At the police station, Officer Ramos conducted a breath test on Nickerson and then plaсed her in a holding cell. Unbeknownst to Nickerson, a motion-sensitive surveillance camera captured her time in the holding cell. There was no sign posted to warn individuals in the holding cell that they were being taped, and the camera was not readily visible to the cell‘s occupants. A real-time monitor was available to all officers оn duty, including both male and female officers.
The Park Police had no written standards to guide their exercise of discretion with respect to video surveillance. Other police stations across the country, however, use motion-sensitive video cameras, such as the one in the cell in which Nickerson was held, for several purposes. Thеse include for medical and security concerns, such as if a detainee attempts suicide, if a physical altercation occurs between detainees, or if a detainee becomes progressively more intoxicated or sick in the holding cell and needs medical attention. The cameras also serve to deter аbusive police conduct because, if police officers are aware that the cells are being monitored, they are less likely to commit physically abusive acts towards detainees.
The holding cell, which was about six feet by three feet in size, contained a toilet that was clearly visible through a glass window in the cell‘s door. Whilе Nickerson was in the holding cell, she used the toilet. This use was recorded by the motion-sensitive video camera. On the video footage, Nickerson could be seen looking toward the glass window while she was using the toilet. She said she was apprehensive that someone might pass by in the hallway and see her through the glass window.
Nickerson was cited, rеleased, and driven home by an officer at about 12:30 a.m., about two hours after Officer Ramos originally made contact with her.
On March 25, 2008, the United States charged Nickerson by information with operating a motor vehicle while under the influence of alcohol in violation of
Nickerson and her attorney made arrangements to review the video surveillance as part of the discovery process. They expected to see footage of her breath test at the police station. They said they were surprised and outraged to see that the videotape showed Nickerson using the toilet in the holding cell.
Thereafter, Nickerson filed a motion to dismiss all charges against her on the basis that the videotaping “shocks the conscience” and warranted dismissal under Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The Magistrate Judge granted the motion and dis-
The government appealed the dismissal to the District Court. On appeаl, the government submitted a supporting affidavit from Officer Ramos, in which she explained, among other things, why video surveillance is conducted in holding cells. On June 24, 2009, the District Court granted the appeal, finding no nexus between the videotaping and prosecution of Nickerson, and reinstated the charges.
No further proceedings took place until Nоvember 23, 2009. Thereafter, Nickerson again moved to dismiss the charges. She argued, among other things, that dismissal was required under certain provisions of the Speedy Trial Act, specifically
Following a two-day bench trial, Nickerson was convicted of all three charges. The Magistrate Judge sentenced her to three years’ probation, a $30 special assessment, and either a $1,000 fine or 125 hours of community service.
Nickerson timely appealed to the District Court. In her appeal, she challenged the denial of her speedy trial motion, the sufficiency of the evidence against her, and denial of her motion to dismiss under Rochin. The District Court denied her motion and affirmed her conviction, holding that the Speedy Trial Act did not apply to the charges against Nickerson and that the evidence was sufficient to support the charges. Nickerson timely appealed.
II. Discussion
A. Dismissal under the Speedy Trial Act
Nickerson argues that the charges against her should have been dismissed pursuant tо
If the defendant is to be tried upon an indictment or information dismissed by a trial court and reinstated following an appeal, the trial shall commence within seventy days from the date the action occasioning the trial becomes final, except that the court retrying the case may extend the period for trial not to exceed one hundred
and eighty days from the date the action occasioning the trial becomes final if the unavailability of witnesses or other factors resulting from the passage of time shall make trial within seventy days impractical. The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section. The sanctions of section 3162 apply to this subsection.
Failure to bring the defendant to trial within these time limits results in dismissal of the indictment. See
Nickerson is correct that
Paragraph (c)(1) creates a time limit by which a trial must commence after a defendant initially is charged with an “offense.” The provisions that follow subsection (с) create similar time limits where the initial indictment or information is dismissed and then new charges are filed, or the initial indictment or information is reinstated on appeal, or a retrial is required after a successful appeal or collateral attack. See
As the government points out, Nickerson‘s proffered interpretation also would lead to anomalous results. Class B misdemeanors can be charged using an indictment or information, or can instead be chargеd via a citation or violation notice. Fed.R.Crim.P. 58(b)(1). On Nickerson‘s interpretation, if a Class B misdemeanor is charged in an indictment or information, dismissed, and then reinstated on appeal, the subsequent trial would be subject to the time constraints of
Our conclusion that
The Speedy Trial Act was enacted in 1974.
As
B. Dismissal based on egregious government misconduct
Nickerson contends that the criminal charges against her should have beеn dismissed based on outrageous government conduct of videotaping her while she was using the toilet in a holding cell at the police station. “A claim that the indictment should be dismissed because the government‘s conduct was so outrageous as to violate due process is reviewed de novo.” United States v. Holler, 411 F.3d 1061, 1065 (9th Cir.2005) (citing United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003)).
The District Court properly held that the charges should not bе dismissed based on the government conduct here. The invocation of outrageous government conduct is “not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed.” Id. (quoting United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995)) (emphasis added); see United States v. Williams, 547 F.3d 1187, 1199 (9th Cir.2008) (same); see also United States v. Jayyousi, 657 F.3d 1085, 1111–12 (11th Cir.2011) (noting that, although the Eleventh Circuit has “never acknowledged the existence of the оutrageous government conduct doctrine, ... the actionable government misconduct must relate to the defendant‘s underlying or charged criminal acts,” and holding that dismissal of an indictment was not warranted based on allegations of pre-indictment mistreatment). Here, there was no nexus between that conduct and the criminal proceeding at issue, either in securing the indictment or in procuring the conviction.
Although Nickerson argues for the first time in her reply brief that the challenged conduct in fact was related to the prosecution or investigation of the charges against her, Nickerson waived this argument by failing to present it to the District Court, and failing to raise it in her opening brief before this Court. Further, the evidence in the record and the findings of the trial court support the conclusion that the government was not attempting to collect evidence through the videotaping and did not do so.
AFFIRMED.
MARSHA S. BERZON
UNITED STATES CIRCUIT JUDGE