UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICK K. VO, Defendant-Appellant.
No. 03-10699
D.C. No. CR-02-00411-ACK
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed June 27, 2005
7627
Alan C. Kay, District Judge, Presiding. Before: Robert R. Beezer, Susan P. Graber, and Jay S. Bybee, Circuit Judges.
FOR PUBLICATION
Appeal from the United States District Court for the District of Hawaii
Argued and Submitted November 4, 2004—Honolulu, Hawaii
Opinion by Judge Bybee
COUNSEL
Edward H. Kubo, Jr., United States Attorney, and Thomas Muehleck, Assistant United States Attorney, Honolulu, Hawaii, for the plaintiff-appellee.
OPINION
BYBEE, Circuit Judge:
Petitioner Rick Vo (“Vo“) and his wife Brenda (“Brenda“) were indicted for conspiring to possess more than fifty grams of methamphetamine with intent to distribute and for aiding and abetting each other in the possession of more than
Vo raises three claims on appeal. First, Vo claims that the district court erred by denying his Speedy Trial Act motion to dismiss under
I. SPEEDY TRIAL ACT
[1] The Speedy Trial Act provides:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the сommission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
In this case there was a 215-day delay between the filing of the indictment and the filing of Vo‘s motion to dismiss. Of this period, Vo does not contest the exclusion of some 143 days, leaving more than 70 days that are not excludable. In this appeal he argues that the district court should nоt have excluded twelve days between October 10-21, 2002. If that period is excluded, then Vo‘s trial was held
Rick and Brenda Vo first appeared in district court, where the government moved for their detention, on October 7, 2002. The district court set a detention hearing for three days later, on October 10, and rеmanded them to the custody of the U.S. Marshal‘s Service. On October 9, the grand jury returned an indictment against the Vos. They appeared the following day to be arraigned and to request a continuance of the detention hearing from October 10 to October 21 to present additional information from the Pretrial Services Officer. The district court agreed to the continuance and set a triаl date for December 10. On October 21, the district court held the detention hearing and granted the government‘s motion to detain the defendants.
[2] Vo argues that the twelve days between October 10 through October 21, 2002, were not excludable from computation under the Act. He claims that, under United States v. Clymer, 25 F.3d 824, 830 (9th Cir. 1994), a motion that does not result in actual pretrial delay is unexcludable: “[Section] 3161(h)(1)(F) applies only when the delay in bringing the case to trial is the result of the pendency of a pretrial motion.” Id. (emphasis in original).
We do not read Clymer to support Vo‘s argument. In Clymer the dеfendant had languished through a 522-day delay, which the government claimed was entirely excludable. The panel‘s opinion granted some of the excludable delay, but held that Clymer‘s motion to dismiss the indictment for outrageous government conduct, which the district court decided to refrain from ruling on until after the trial, did not constitute excludable delay under the Act. Id. at 831-32. We found that “[i]n effect, the district court denied the motion without prejudice to the filing of a renewed submission after the conclusion of the trial.” Id. at 830. If we had held otherwise in Clymer, the government would have had carte blanche in the preparation of its case, so long as it had some motion pending before the court, even if resolution of the motion had been suspended until after the trial. We noted that in the ordinary case “[w]here delay in commencing a trial results from the pendency of a motion (as when the district court holds off trial pending a hearing on the motion), the delay will automatically be excluded from the Speedy Trial Act calculation, no matter how unreasonable or unnecessary that delay might seem.” Id. at 830. But in Clymer “that causal relationship was reversed: the pendency of the motion did not delay the start of the trial; rather, the delay in the commencement
[3] Clymer did not, and did not purport to, overrule our prior cases holding that the time a motion is pending is excludable even when the pendency of the motion causes no actual delay in the trial. United States v. Crooks, 826 F.2d 4, 5 (9th Cir. 1987); United States v. Van Brandy, 726 F.2d 548, 551 (9th Cir. 1984); see also Daychild, 357 F.3d at 1095 (“[T]he district court‘s five-day exclusion of the period between [defendant‘s] arraignment and the detention/bond hearing held at his request . . . was proper.“). We, thus, do not read Clymer as adopting the broad rule Vo advocates.2 As we recently observed, “[i]n the years since Clymer was decided, its holding has been limited to situations in which a motion is рostponed until after trial.” United States v. Lewis, 349 F.3d 1116, 1121 (9th Cir. 2003) (per curiam) (citing United States v. Gorman, 314 F.3d 1105, 1115 (9th Cir. 2002); United States v. George, 85 F.3d 1433, 1436 (9th Cir. 1996); Springer, 51 F.3d at 865). Except in the unusual case, such as Clymer, ” ‘a pretrial motion triggers an automatic exclusion,’ ” Van Brandy, 726 F.2d at 551 (citing United States v. Cobb, 697 F.2d 38, 46 (2d Cir. 1982)), even though no actual delay results, Crooks, 826 F.2d at 5.
Our holding provides a clear rule for district courts and counsel to follow, it puts
II. MARITAL COMMUNICATIONS PRIVILEGE
Vo argues that the district court should not have permitted Brenda to testify about their marital communications. Vo failed to object at trial, so he must argue here that the admission of her testimony was plain error.3
Brenda testified that Vo had asked her to send a box from a shopping center near Playa del Rey, California, to Honolulu, in September 2001. Although she initially declined to send the box because Vo would not inform her of the contents, she later agreed to Vo‘s demands. She testified that when Vo handled the box, he handled it in a way that would avoid leaving fingerprints. Vo also had written the name of “Linda Chang” as the sender on the box when he gave the box to Brenda to send. Brenda testified that a month later, in October 2001, Vo asked her to send another box to Honolulu, also with the name “Linda Chang” as the sender. Brenda also testified to other facts regarding the package recovered by the FBI and DEA during trial. Additionally, Brenda testified that in 2002, she observed Vo‘s brother, Khanh Vo, give a United Parcel Service agent a box to send, and testified that she saw Khanh carry the box so as to avoid leaving fingerprints. Finally, Brenda testified that in 2002, while staying at her parents house in Hawaii, Vo asked her to gо see a person named “Crash Om” to pick up some money that Vo was owed for drugs.
[4] There are two types of marital privileges that may be implicated when spouses testify against each other. “The first permits a witness to refuse to testify against his or her spouse while they are married. United States v. Montgomery, 384 F.3d 1050, 1056 (9th Cir. 2004) (citing Trammel v. United States, 445 U.S. 40, 53 (1980)). This privilege is not implicated in this case because Brenda elected to testify against Vo. See id. The second privilege, the marital communications privilege, provides that “[c]ommunications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.” Wolfle v. United States, 291 U.S. 7, 14 (1934). We have held that “[t]he privilege (1) extends to words and acts intended to be a communication; (2) requires a valid marriage; and (3) applies only to confidential communications, i.e., those not made in the presence of, or likely to be overheard by, third parties.” Montgomery, 384 F.3d at 1056 (citing United States v. Marashi, 913 F.2d 724, 729-30 (9th Cir. 1990)). We construe the marital communications privilege narrowly, to promote marriage without thwarting the administration of justice. Id.; Marashi, 913 F.2d at 730.
The marital communications privilege is subject to an important exception.
Vo argues that, by failing to assert the privilege during trial, he did not waive the marital communications privilege but rather that he forfeited his privilege. This is significant because Vo claims that the marital communications privilege is a right, not a privilege. As Vo correctly asserts, the court may review for plain error under United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc), where a right is forfeited in the trial court because it was not raised at all (as opposed, that is, to having been raised and waived). See id. at 844 (forfeited right reviewed for plain error).
[5] We have plainly held, however, that when the defendant “failed to object to his wife‘s testimony as to his communications when it was offered,” he has waived the privilege. United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir. 1972). Recently, we affirmed that ”Figueroa-Paz stands for the rule that thе marital communications privilege will be waived if an objection is not timely made.” Montgomery, 384 F.3d at 1057. Because Vo neglected to assert the marital communications privilege during pretrial conference or to object at trial to Brenda‘s testimony on the basis of the marital communications privilege, he has waived the privilege. We therefore decline to review his claim of plain error.
III. EVIDENCE OF PRIOR CONVICTION
Finally, Vo argues that the district court erred when it admitted evidence that Vo was convicted in 1989 of two counts of selling cocaine.4 The district court found that the conviction was similar to the current charge, that the evidence was being introduced to prove a material issue, and that the prior conviction was not too remote. It concluded that proba-
tive value of the prior conviction substantially outweighed any unfair prejudice. See
[6] Evidence of a prior conviction, wrong, or act is inadmissible undеr Rule 404(b) for the purpose of proving the character of a person or that a defendant acted in conformity with such character.
The government argues that it offered Vo‘s prior conviction as evidence of his intent, knowledge, and absence of mistake under Rule 404(b). Vo counters that the prior conviction was old and that it was not relevant to the charged act, because the charged act and prior conviction involve different materiаl elements. The government points out that Vo‘s theory at trial was that Brenda was the drug dealer in this scenario5 and that
she implicated Vo because “by burning somebody else to get herself out from under her awful, awful situation . . . benefits [would] accrue.” United States v. Vo, No. 02-00411ACK, Trial Transcript, 2-27, lines 21-23 (May 15, 2003) (opening argument by Vo‘s counsel). The government argues that it offered the evidence of the prior conviction to refute Vo‘s claims that he was merely an innocent pawn in Brenda‘s scheme.6
[7] “We have consistently held that evidence of a defendant‘s prior possession or sale of narcotics is relevant under Rule 404(b) to issues of intent, knowledge, motive, opportunity, and absence of mistake or accident in prosecutions for possession of, importation of, and intent to distribute narcotics.” United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir. 1982). When analyzing the similarity of prior drug crimes under
[8] The district court did not abuse its discretion. Vo‘s prior conviction was evidence of his knowledge of drug trafficking and distribution in general. The conviction tended to show that Vo was familiar with distribution of illegal drugs and that his actions in this case were not an accident or a mistake. In additiоn, there is no issue about the sufficiency of evidence of the prior bad act because Vo was convicted in state court. United States v. Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir. 1993). The district court “carefully weighed the probative value versus the prejudicial effect of the evidence” and issued appropriate limiting instructions to the jury, therefore properly exercising its discretion to admit the evidence. United States v. Chea, 231 F.3d 531, 535 (9th Cir. 2000). We thereforе affirm the district court‘s admission of Vo‘s prior conviction.
CONCLUSION
Vo‘s conviction is AFFIRMED. We REMAND to the district court solely for the purpose of sentencing consistent with United States v. Ameline, No. 02-30326, 2005 WL 1291977, at *11 (9th Cir. June 1, 2005) (en banc).
BYBEE
Circuit Judge