Dеfendant George Robey operated a modern-day “chop shop” — he and his associates stole cars, altered their identities using office and computer equipment, and then sold them. He was convicted by a jury, and the district court sentenced him to 110 months’ imprisonment and three years of supervised release.
Robey appeals his conviction and sentence on three grounds. First, he argues that he did not receive a speedy trial, in violation of the Speedy Trial Act аnd the
I. Background
A, Factual Background
From 2009 until 2011, Robey and his associates stole cars from lots around Indianapolis, altered the cars’ identities, and then sold them. As part of this operation, Robey would change a stolen car’s identity by giving it a new Vehicle Identification Number (“VIN”), a unique 17-digit identification code. Robey would also create counterfeit documents to support a stolen car’s new identity, which included generating a title, insurance card, sales contract, and temporary license plate. Robey created these counterfeit VINs and documents using a computer, scanner, printer, and digital image editing software.
B. Procedural History
Robey was arrested on a criminаl complaint on December 6, 2011. Between Ro-bey’s arrest and indictment, Robey and the government jointly requested and were granted two ends-of-justice continuances to extend the pre-indictment period.
On February 23, 2012, a grand jury returned a 25-count indictment against Ro-bey, alleging conspiracy to identify, steal, and sell stolen vehicles for profit; trafficking in vehicles with altered VINs; making, uttering, and possessing counterfeit state securities; and identification document fraud.
Robey made an initial appearance on the indictment on March 1, 2012. Between Ro-bey’s initial appearance and trial start date of February 10, 2015, Robey requested and was granted ten ends-of-justice continuances. Additionally, he filed several pretrial motions, requested and received new counsel twice, underwent a psychological examination, and entered and withdrew from a plea agreement. During this period, the government also was granted one ends-of-justice continuance.
On Decеmber 29, 2014, the government moved to dismiss nineteen of the twenty-five counts in the indictment, reducing the charges against Robey to six remaining counts — four counts of trafficking in vehicles with altered VINs, in violation of 18 U.S.C. § 2321; and two counts of making, uttering, and possessing counterfeit state securities, in violation of 18 U.S.C. § 513(a). The district court granted this motion.
Robey also filed two motions to dismiss. On December 31, 2014, Robey filed his first motion to dismiss, arguing that his speedy trial right had been violated, pursuant to 18 U.S.C. §§ 3161(c)(1), 3162, because his case had not been tried within 70 days оf his initial appearance. The district court denied Robey’s motion on January 5, 2015, finding that only 28 days had elapsed on Robey’s pre-trial speedy trial clock. On January 28, 2015, Robey filed his second motion to dismiss, again alleging violation of his right to a speedy trial. The district court denied this motion on February 6, 2015.
Robey’s three-day trial began on February 10, 2015. The jury saw and heard evidence that Robey had, for four stolen vehicles, altered the VINs, created counterfeit vehicle documents, and sold the vehicles, including one sale to an undercover agent. The jury convicted.Robey of all six counts on February 12, 2015.
On May 20, 2015, the district court held Robey’s sentencing hearing. The revised presentence investigation report (“PSR”)
At sentencing, Robey contested the total value of the cars, arguing that the ten uncharged cars should not be considered relevant conduct. The district court ruled that the evidence found during the search of Robey’s home confirmed a pattern of common conduct sufficient to establish the ten additional vehicles as relevant conduct. Adopting the PSR, the district court determined Robey’s guidelines range was 110 to 137 months’ imprisonment, based on an adjusted offense level of 26 and criminal history category of V. After taking into account Robey’s age and infirmity, the court imposed a within-guidelines sentence of 110 months’ imprisonment and three years of supervised release, with the standard conditions and some discretionary conditions. Judgment was entered against Robey on May 27, 2015. Robey appealed.
II. Analysis
Robey appeals his conviction and sentence on three main grounds. First, he claims that he did not receive a speedy trial, in violation of the Speedy Trial Act and Sixth Amendment. Second, Robey contends that the district erred in allowing the government to amend the indictment by dropping nineteen of the twenty-five charges. Third, he argues that the district court erred at sentencing by ruling that Robey’s theft of ten vehicles, in additiоn to the four vehicles that form the basis of his conviction, constituted relevant conduct.
A Speedy Trial Violations
Robey claims that his right to a speedy trial was violated under the Speedy Trial Act and the Sixth Amendment. Robey first argues that his speedy trial right under the Speedy Trial Act was violated by: (1) the 79 days that elapsed between his arrest and indictment and (2) the 1076 days that elapsed between his initial appearance and trial commencement. Robey then contends his speedy trial right under the Sixth Amendment was violated by the 1076 days that elapsed between his initial appearance and trial commencement.
1. Speedy Trial Act
This court reviews “the district court’s legal interpretation of the [Speedy Trial Act] de novo, and its decisions to exclude time for an abuse of discretion.” United States v. Ramirez,
The Speedy Trial Act generally requires that a criminal indictment be filed within 30 days of a defendant’s arrest. 18 U.S.C. § 3161(b). Furthermore, the Speedy Trial Act generally requires that a criminal trial begin within 70 days of an indictment or a defendant’s initial appearance, whichever is later. Id. § 3161(c)(1). The Speedy Trial Act provides exceptions, however, which allow certain periods of delay to be “excluded” from the relevant speedy trial clock. Id. § 3161(h). Some of these exceptions, such as consideration of plea agreements, are automatically excludable. Id. § 3161(h)(1)(G); see United States v. O’Connor,
In granting an ends-of-justice continuance, the judge shall consider the factors listed in § 3161(h)(7)(B) and must “set[] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice would be served.” Id. § 3161(h)(7)(A). The district court’s decision “need not be lengthy and need not track the statutory language,” but it should provide this court with an adequate record to review the district court’s consideration of the relevant factors. O’Connor,
In the present case, we begin by addressing Robey’s pre-indictment period of delay and then turn to his pre-trial period of delay.
Robey first argues that the 79 days that elapsed between his arrest on December 6, 2011, and his indictment on February 23, 2012, violated the Speedy Trial Act’s 30-day pre-indictment requirement. However, during this period, Robey and the government jointly requested and were granted two ends-of-justice continuances. Excluding these periods of times leaves only 13 days on Robey’s pre-indictment speedy trial clock.
In this case, Robey’s pre-indictment delay argument fails because the district court did not abuse its discretion in granting the two ends-of-justice continuances. Both of the district court’s decisions were supported by an order articulating adequate justification, as well as by the relevant sequence of events. The court granted the two ends-of-justice continuances because both Robey and the government needed additional time to attempt to negotiate a resolution to the matter without a trial. These were reasonable decisions because they allowed both parties, at an early stage in the case, to pursue the option of resolving the case without a trial.
Robey next argues that the 1076 days that elapsed between his initial appearance on March 1, 2012, and his trial commencement on February 10, 2015, violated the Speedy Trial Act’s 70-day pre-trial requirement.
Again, most of this time is excludable. First, the period of time in which Robey was negotiating his withdrawn plea agreement is automatically excluded. § 3161(h)(1)(G); O’Connor,
Here, the district court did not abuse its discretion in granting ten ends-of-justice continuances for Robey. Each of
The court granted Robey’s first, second, and third ends-of-justice continuances because Robey required additional time to evaluate discovery, explore the possibility of a plea agreement, and effectively prepare for trial if the plea negotiations provеd unsuccessful. These were reasonable decisions because they allowed Robey, at an early stage in the case, to pursue the option of a plea agreement and still prepare for trial.
The court granted Robey’s fourth ends-of-justice continuance because Robey required additional time to undergo a psychological evaluation, evaluate discovery, explore the possibility of a plea agreement, and effectively prepare for trial if the plea negotiations proved unsuccessful. This was a reasonable decision because Robey did eventually undergo a psychological evaluation. This reasonable decision also allowed Robey to pursue the option of a plea agreement and still prepare for trial.
The court granted Robey’s fifth ends-of-justice continuance to allow his new counsel to prepare for trial. This was a reasonable decision given that Rоbey had been appointed a new lawyer, at Robey’s request, two weeks earlier.
The court granted Robey’s sixth, seventh, and eighth ends-of-justice continuances because of delays in trial preparation arising from Robey’s psychological evaluation. These were reasonable decisions in light of Robey’s psychological evaluation.
The court granted Robey’s ninth ends-of-justice continuance in order to prepare for trial. This was reasonable decision given that he had recently withdrawn from a plea agreement.
The court granted Robey’s tenth ends-of-justice continuance to evaluate discovery, explore a plea agreement, and prepare for trial. This was a reasonable decision because Robey had been appointed new counsel again, at Robey’s request, two weeks earlier.
For the sake of completeness, we also review the government’s one ends-of-justice continuancе, which the court granted because the government had recently changed counsel and the leading case agent was unavailable for the trial due to the expected birth of his child. This was a reasonable decision because, in fact, the government’s new counsel was heavily involved in pending litigation and the leading case agent was unavailable for the trial because of paternity leave.
Accordingly, Robey did not suffer violation of his speedy trial right under the Speedy Trial Act.
2. Sixth Amendment
Robey also argues that the 1076 days that elapsed between his initial appearance and his trial violated his. right to a speedy trial under the Sixth Amendment, which is related to but independent of his Speedy Trial Act claim. O’Connor,
The Sixth Amendment guarantees an accused “the right to a speedy and public trial.” U.S. Const, amend. VI. This court examines the following factors in assessing a speedy-trial claim under the Sixth Amendment: “ ‘[WJhether [the] dеlay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.’ ” O’Connor,
In the case at hand, the pretrial period did not violate the Sixth Amendment. On one hand, Robey did timely assert his right, and he is entitled to a presumption of prejudice. See id. (“Delays of more than one year are considered presumptively prejudicial.”). On the other hand, Robey bears “primary responsibility” for the years of pretrial delay, and he was not actually prejudiced. Id. He filed a motion to suppress, sought ten ends-of-justice continuances, and entered and withdrew from a plea agreement. He underwent a psychological examination. He also changed lawyers twice. Furthermore, it appears that Robey was uncooperative with his appointed counsel, as indicated by his pro se letters to the court and change-of-counsel hearings. As a result, while the pretrial delay in Robey’s case was lengthy, there was no Sixth Amendment violation. See id. (holding no constitutional violation because defendant “bears primary responsibility for many of the pretrial delays and did not suffer actual prejudice”).
B. Amending the Indictment
Robey next claims that the district erred in allowing the government to amend the indictment by dismissing nineteen of the twenty-five counts prior to trial. Specifically, Robey contends that “[b]ecause the modification wаs made without the oversight of a grand or petit jury, the amendment violated Robey’s constitutional rights.” (Appellant Br. 33-34.) Robey raises his claim under the Fifth Amendment, which provides, “[n]o person shall be held to answer for a ... crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const, amend V; see also United States v. Soskin,
Because Robey did not preserve this claim in district court, it is forfeited, and we review only for plain error. United States v. Perez,
Here, Robey cannot show error, plain or otherwise, because the district court’s dismissal of nineteen of twenty-five counts of the indictment prior to trial only narrowed the indictment against him, a practice that has been exprеssly upheld by the Supreme Court and this court.
In United States v. Miller, the Supreme Court held that “where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury’s consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment.”
In fact, Robey’s argument is the same as the one expressly rejected by the Miller
Robey’s attempts to distinguish Miller from the present case are unpersuasive. Robey argues that the entire indictment in Miller was sent to the petit jury and asks this court to “draw [a distinction] between indictment modifications that occur with jury oversight and those that occur without.” (Appellant Reply. Br. 13:) Robey’s argument is meritless and undermined by his own reply brief. As Robey concedes, this court has allowed modified indictments to be presented to a petit jury without resubmission to a grand jury. See e.g., Perez,
Robey subsequently argues that this court allows presentation of a modified indictment to a petit jury without resubmission to a grand jury “only when the modifications do not materially affect the substance or scale of the charges alleged.” (Appellant Reply Br. 13 (emphasis added).)
Robey misstates the law. Instead, this court has clearly articulated what does and does not constitute an impermissible amendment-"[n]arrowing the indictment so that the trial jury deliberates on fewer offenses than the grand jury charged does not constitute amendment. But the indictment may not be broadened so as to present the trial jury with more or different offenses than the grand jury charged.” United States v. Crockett,
C. Relevant Conduct at Sentencing
Finally, Robey argues that the district court erred аt sentencing by ruling that Robey’s theft of ten uncharged vehicles, in addition to the four charged vehicles from his conviction, constituted relevant conduct.
A district court must find relevant conduct by a preponderance of the evidence. United States v. Baines,
In assessing whether uncharged activities constitute relevant conduct, this court has applied the advisory sentencing guidelines. E.g., id. Under the sentencing guidelines, in theft cases, a defendant’s offense level is based in part on the “loss” caused
In the present case, at sentencing, the district court did not commit clear error in finding that the ten uncharged vehicles constituted relevant conduct.
The evidence at trial and sentencing support a finding of a “common scheme or plan,” §' lB1.3(a)(2) n.9(B), because there were multiple commonalities that substantially connected the charged and uncharged vehiсles. There was a common purpose behind stealing and altering the identities of all fourteen vehicles — selling them. Furthermore, there was a common modus operandi applied to both the charged and uncharged vehicles. At trial, the jury heard how Robey altered the identities of the four charged vehicles with counterfeit VINs and supporting documents. The jury also was shown evidence that Robey created this false identity using computers, printers, a scanner, photo paper, vehicle title and license plate templates, carbon paper sales contracts, and a typewriter. In particular, the jury was shown typewriter ribbon from Robey’s home that contained identifying information for the four charged vehicles, including make, model, year, color, mileage, and counterfeit VIN that matched stickers affixed to the stolen vehicles. At sentencing, the government proffered evidence of the same modus operandi for the ten uncharged vehicles, including counterfeit documents and typеwriter ribbon containing the make, model, year, color, mileage, and counterfeit VIN. As a result, at sentencing, the court confirmed that “all the 14 [charged and uncharged] vehicles ... [were] identified by reviewing the documents and materials and the typewriter ribbon in Mr. Robey’s possession pursuant to the search warrant!.]” (Sent. Tr. 19, May 20, 2015.)
The evidence presented at trial and sentencing is more than sufficient to support the district court’s finding of a “pattern of relevant conduct that far exceeded in its details the four cars that were stolen that were before the jury.” (Id. at 20.) As such, the district court did not commit clear error in finding that the ten uncharged vehicles constituted relevant conduct.
Robey’s main argument against a “common scheme or plan,” focuses on the temporal “gap” between the charged and uncharged vehicles. Robey’s assertion is belied by the record — there was only a four-month “gap” between the latest uncharged vehicle stolen on December 16, 2010 and the earliest charged vehicle on April 17, 2011. (PSR ¶ 21.) Furthermore, the multiple commonalities discussed above “more than suffice” to overcome any alleged temporal “gap” and support the court’s relevant conduct determination. Baines, 111 F.3d at 963-64 (rejecting defendant’s temporal gap argument
Robey’s remaining arguments assert that the additional vehicles did not arise from “the same course of conduct,” § lB1.3(a)(2) n.9(B). However, we need not address these аrguments because as discussed, the court’s relevant conduct determination was adequately based on a finding of a “common scheme or plan,” § lB1.3(a)(2) n.9(A). See § lB1.3(a)(2) n.9(B) (“Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct.”).
Therefore, the district court did not commit clear error.
III. Conclusion
For the foregoing reasons, Robey’s conviction and sentence are AFFIRMED.
Notes
. The district court granted ten ends-of-justice continuances for Robey on the following dates: (1) April 12, 2012, (2) June 12, 2012, (3) August 7, 2012, (4) November 28, 2012, (5) March 1, 2013, (6) May 1, 2013, (7) September 9, 2013, (8) November 21, 2013, (9) July 3, 2014, and (10) August 20, 2014.