                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 11 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30478

              Plaintiff - Appellee,              D.C. No. 3:07-CR-00437-BR-1

  v.
                                                 MEMORANDUM *
RALPH RENE WILLIAMS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                       Argued and Submitted July 13, 2010
                                Portland, Oregon

Before: GOODWIN, PREGERSON and WARDLAW, Circuit Judges.

       Ralph Rene Williams appeals his conviction and 120-month sentence for

banµ robbery. He argues that his trial violated the Speedy Trial Act ('STA'), 18

U.S.C. y 3161 et seq., and that his waiver of his right to counsel was not µnowing,

intelligent, and unequivocal. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       We review de novo 'the district court's interpretation and application' of

the STA 'and review the district court's findings of facts for clear error.' United

States v. Medina, 524 F.3d 974, 982 (9th Cir. 2008). Under the STA, a criminal

defendant 'must be brought to trial within seventy days of the indictment or his

initial appearance before a judicial officer, whichever is later.' United States v.

Murillo, 288 F.3d 1126, 1133 (9th Cir. 2002) (citing 18 U.S.C. y 3161(c)(1)). For

pretrial motions that do not require a hearing, 'the period from the date the motion

was taµen under advisement until the court rules on the motion' is excluded, 'but

no more than 30 days.' Medina, 524 F.3d at 978-79 (citing Henderson v. United

States, 476 U.S. 321, 329 (1986)). If the pretrial motion requires a hearing, the

district court excludes '(i) the period from the date the motion was filed to the

conclusion of the hearing, (ii) the period from the conclusion of the hearing until

the date the district court receives all the submissions by counsel it needs to decide

that motion, and (iii) the period from the last day of the period described in (i) or

(ii), as applicable, until the court rules on the motion, but no more than 30 days.'

Medina, 524 F.3d at 979 (citations and internal quotation marµs omitted).

      Williams had filed motions to continue the time to file motions to stay

administrative forfeiture, to dismiss the indictment, to have a Franµs v. Delaware,

438 U.S. 154 (1978), hearing, and to have a Faretta v. California, 422 U.S. 806


                                           2
(1975), hearing. The government had filed motions to continue the trial date and

to compel Williams to produce a DNA sample. All of these motions involved

responses from the other party and decisions by the district court, which was

excludable time under the STA and prevented the trial from occurring on the

originally set 70-day date. There was no clear error under the STA by the district

court in allowing this excludable time within the period set for the original trial

date.

        In addition, the STA excludes

        [a]ny period of delay resulting from a continuance granted by any
        judge on his own motion or at the request of the defendant or his
        counsel or at the request of the attorney for the Government, if the
        judge granted such continuance on the basis of his findings that the
        ends of justice served by taµing such action outweigh the best interest
        of the public and the defendant in a speedy trial.

18 U.S.C. y 3161(h)(8)(A) (2005). To exclude this period of delay, 'the court

must state such findings in the record, either orally or in writing, y 3161(h)(8)(A),

by the time a district court rules on a defendant's motion to dismiss under y

3162(a)(2)' of the STA. Medina, 524 F.3d at 980 (citations and internal quotation

marµs omitted); see United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th

Cir. 2000) (recognizing that an STA ''ends of justice' exclusion must be (1)




                                           3
'specifically limited in time' and (2) 'justified on the record with reference to the

facts as of the time the delay is ordered.'' (citation and alteration omitted)).

       The district court repeatedly stated that it was using the 'ends of justice'

analysis in determining whether Williams's insistence on the original trial date

outweighed the interests of justice and the public. The court concluded that the

government's need to complete DNA and other forensic testing as well as to have

two necessary witnesses testify at trial, who were unavailable for the originally set

trial date, comported with the interest of justice. In addition, the government had

engaged in plea negotiations within the originally set trial period as well as some

forensic testing. Significantly, the court was dealing with both Williams's new

banµ-robbery indictment as well as his violation of conditions of his supervised

release from his first banµ-robbery conviction. There was no clear error in the

district court's use of the ''ends of justice' exception' to the STA. Murillo, 288

F.3d at 1133. The district court merely observed that criminal cases in the district

rarely go to trial at the first date set and did not use that observation as a basis for

its 'ends of justice' ruling. Accordingly, Williams has failed to meet his burden of

proving that his trial was 'not commenced 'within the time limit required by

section 3161(c) as extended by section 3161(h).'' Medina, 524 F.3d at 982

(quoting 18 U.S.C. y 3162(a)(2)).


                                             4
      'We review the validity of a Faretta waiver, a mixed question of law and

fact, de novo.' United States v. Ersµine, 355 F.3d 1161, 1166 (9th Cir. 2003). For

'a defendant's Faretta waiver [to be] µnowing and intelligent, the district court

must insure that [the defendant] understands 1) the nature of the charges against

him, 2) the possible penalties, and 3) the dangers and disadvantages of self-

representation.' Id. at 1167 (citation and internal quotation marµs omitted).

Although 'we have never required district courts to recite a particular script when

maµing their inquiry,' the district court thoroughly explained these three factors to

Williams. Id. at 1168. While he requested different counsel, which the court

agreed to provide with the understanding that might further delay his trial,

Williams definitively reaffirmed his determination to represent himself with his

original attorney as standby counsel. Faretta permits standby counsel without

violating an individual's right to self-representation. McKasµle v. Wiggins, 465

U.S. 168, 177 (1984).

      Williams concedes that the district court correctly advised him of the

maximum sentence of 20 years to which he was subject for the crime of banµ

robbery but argues that the district court failed to advise him of the possibility of a

consecutive 3-year sentence upon revocation of his supervised release. See 18

U.S.C. y 3583(e)(3) (permitting a sentencing court to impose a consecutive


                                           5
sentence of up to 3 years of imprisonment upon revocation of supervised release

for a Class B felony, such as banµ robbery, under 18 U.S.C. yy 2113(d),

3559(a)(2)). At the January 17, 2008, hearing, the district court advised Williams

that he was subject to a separate sentence for violation of his supervised release,

which Williams confirmed that he understood, when he asserted his right to self-

representation. See United States v. Gerritsen, 571 F.3d 1001, 1010 (9th Cir.

2009) (recognizing that µnowing and intelligent waiver is determined at the stage

of the proceedings when the right to counsel is waived). Because '[a] statutory

enhancement for a prior conviction is not an element of the crime [of conviction,

i]t need not be alleged in the indictment and proven to a jury, but is determined by

the court after the defendant has been convicted.' Id. at 1009. Therefore,

Williams's potential supervised-release revocation was not a part of his indictment

for the banµ robbery for which he was convicted in this case, because it was a

consequence of his conviction and not the crime for which he was charged. After

Williams's conviction for the banµ robbery, the district court imposed a 2-year

sentence consecutive to his sentence for banµ robbery for violation of his

supervised release. The district court did inform Williams that he was subject to a

separate sentence for this consequential crime, but it could not tell him at the time

of his waiver of his right to counsel what the sentence would be because it was


                                           6
dependent on his conviction for banµ robbery and the court's subsequent

determination.

      Regarding the dangers and disadvantages of self-representation, Williams

reaffirmed to the district court at the January 18, 2008, hearing his final decision to

represent himself with his original counsel as standby counsel after talµing with his

counsel and having considered his decision overnight. At that hearing, Williams

confirmed that the court had advised him of the risµs of self-representation and that

he accepted those risµs, including the same prosecutor from his previous

conviction for banµ robbery. The record shows that the district court diligently

satisfied the prerequisites of a µnowing and intelligent waiver of the right to self-

representation by explaining to Williams 'the nature of the charges against him,

the possible penalties, and the risµs of self-representation' and that Williams's

assertion of his willingness to accept all the risµs of self-representation was

unequivocal. United States v. Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir.), cert.

denied, 130 S. Ct. 252 (2009). Therefore, the government met its 'burden of

establishing the legality of the waiver' of Williams's right to counsel. Gerritsen,

571 F.3d at 1006 (citation and internal quotation marµs omitted).

AFFIRMED.




                                           7
                                                                                 FILED
United States v. Williams, No. 08-30478                                           AUG 11 2010

                                                                             MOLLY C. DWYER, CLERK
Pregerson, J., concurring:                                                     U.S . CO U RT OF AP PE A LS




       I concur in the result of the memorandum disposition, but disagree with the

disposition's analysis of Williams's Speedy Trial Act claim. The disposition holds

that Williams's Speedy Trial Act claim fails because the parties' pre-trial motions

and the district court's grant of the government's request for a continuance create

enough excludable time to satisfy the 70-day statutory time limit. I agree that

delays caused by both parties' pre-trial motions are excludable. These delays,

taµen together, place the date the trial commenced within the 70-day period.

Therefore, there is no need the reach the question whether the delay resulting from

the continuance is excludable under the 'ends of justice' exclusion. Even if it

were necessary to reach the ends of justice exclusion, I disagree that the exclusion

applies in this case.

       The period of delay that results from the court's grant of a continuance is

only excludable from the 70-day period if granted 'on the basis of [the court's]

findings that the ends of justice served by taµing such action outweigh the best

interest of the public and the defendant in a speedy trial.' 18 U.S.C.

y 3161(h)(7)(A). Although the Act provides that a court may consider 'whether

the failure to grant . . . a continuance . . . would deny . . . the attorney for the

Government the reasonable time necessary for effective preparation,' the Act
prohibits a court from granting a continuance because of 'lacµ of diligent

preparation or failure to obtain available witnesses on the part of the attorney for

the Government.' 18 U.S.C. y 3161(h)(7)(B)-(C). No period of delay resulting for

a continuance will be excluded unless the court 'sets forth, in the record of the

case, either orally or in writing, its reasons for finding that the ends of justice [will

be] served by [granting the continuance].' 18 U.S.C. y 3161(h)(7)(A).

       Here, the government requested a continuance because it needed additional

time to complete forensics tests, two of its necessary witnesses were unavailable,

and the government had engaged in plea negotiations with defendant Williams.

The district court granted the government's request for a continuance because the

court concluded that the government diligently prepared for trial. The district court

observed that criminal cases rarely go to trial and never go to trial on the first

setting in the District of Oregon. Based on this observation,1 the district court


       1
        The majority contends that the district court did not use its observation
regarding the rarity of criminal trials as a basis for its ends of justice ruling. The
hearing transcript indicates otherwise:

                   I'm going to maµe some general observations about how I've noted the
           criminal bar in this district to deal with proceedings. Not for purposes of
           suggesting in any way that Mr. Williams is held to any different standard, but to
           set a context for what I thinµ has become the reasonable expectation of the
           criminal bar here: the prosecutors and defenders.
                   As I noted earlier on the record, the vast majority of all our criminal
                                                                                     (continued...)

                                                   2
found that the government reasonably deferred expensive and time-consuming

forensics testing until after Williams, through his counsel, advised the government

that he would not accept the government's plea bargain and intended to proceed to

trial on the first setting. Additionally, the district court found that the government

acted diligently because it began to pursue its forensics testing within the 70-day

period.


      1
          (...continued)
          cases resolve by - in manners other than a jury trial. The vast majority resolve
          either by a diversion agreement, dismissal by the Government voluntarily, some
          form of plea agreement.
          ...
                  I can't thinµ of one case that went to trial on its first setting, and I haven't
          been able to find one, when I learned of this issue.
          ...
                  And the real legal question then becomes whether the Government . . .
          can be accused of a lacµ of diligence in preparing for trial for failing to obtain
          witnesses by waiting [to receive] this clear signal from defense counsel to
          complete its trial preparation.
                  The fact of the matters is [that] prosecutors, liµe the defenders- again, as
          a matter of common practice, sometimes defer certain costs, certain time
          consuming activities, in the interests of avoiding incurring unnecessary expense
          or delay for matters that might not be needed. Certain µinds of preparation isn't
          expected unless a case is going to trial.
                  So, really, the issue is whether the Government, in assuming until told
          otherwise that the case was not . . . going to go to trial on the first setting, was
          somehow unduly diligent in violation of sub - of Chapter C.
                  I don't find that to be the case here. It is clear that issues of a DNA
          sample and issues of resolution were being pursued by the Government within
          the 70-day time period.
...
      I am therefore granting the motion.

                                                     3
      The court's findings were not sufficient to grant a continuance to serve the

ends of justice because the government was not diligent in preparing for trial. The

government had the evidence it needed to conduct the necessary forensics tests

several months before trial, but delayed doing so until it was convinced that

Williams intended to exercise his constitutional right to trial.

      The district court's observation that criminal defendants in the District of

Oregon rarely go to trial and typically plead guilty should not excuse the

government's failure to diligently prepare for trial within the 70-day period

mandated by Congress. As a practical matter, the government's charging authority

exerts pressure on criminal defendants to forego their constitutional right to a jury

trial and to plead guilty early in the proceedings. When a defendant does not plead

guilty within the time limits imposed by the government, and instead chooses to

put the government to its proof, he may find that the indictment has been amended

to charge additional offenses which could result in the imposition of a more severe

sentence. Such practices should not be condoned. Nor should we condone the

notion that the government benefits from such practices by gaining additional time

to prepare for trial when a defendant fails to succumb to the pressure to plead

guilty. A defendant should not lose the benefits of the Speedy Trial Act just

because he exercises his constitutional right to a trial.


                                            4
       Moreover, the fact that the government began to pursue its forensics testing

within the 70-day period does not excuse the government's lacµ of diligence in

preparing for trial. The plain language of the Speedy Trial Act requires that a

defendant receive a trial within 70 days and does not provide an exception just

because the government begins trial preparation within that period. 18 U.S.C.

y 3161(c)(1).

       It is important to bear in mind that before granting a continuance that would

delay a criminal trial beyond the 70-day period, the Speedy Trial Act requires that

the trial court find that the ends of justice will be served. 18 U.S.C.

y 3161(h)(7)(A). The district court provided no legitimate findings on the record to

justify granting the government's request for a continuance to serve the ends of

justice. Accordingly, the delay resulting from the continuance should not be

excluded from the 70-day period. Nevertheless, Williams's rights under the

Speedy Trial Act were not violated because the pre-trial motions created more than

enough excludable time to satisfy the Act. Therefore, there was no need to reach

the question whether the ends of justice exclusion applies. That discussion, I

suggest, is dicta.




                                           5
