                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 12-10534
              Plaintiff-Appellee,
                                                    D.C. No.
                     v.                        3:08-cr-00192-RS-1

 CASSANDRA B. NICKERSON,
           Defendant-Appellant.                      OPINION


         Appeal from the United States District Court
            for the Northern District of California
          Richard Seeborg, District Judge, Presiding

                  Argued and Submitted
       September 12, 2013—San Francisco, California

                       Filed October 1, 2013

     Before: J. Clifford Wallace and Marsha S. Berzon,
     Circuit Judges, and Jack Zouhary, District Judge.*

                     Opinion by Judge Berzon




 *
   The Honorable Jack Zouhary, District Judge for the U.S. District Court
for the Northern District of Ohio, sitting by designation.
2                UNITED STATES V. NICKERSON

                           SUMMARY**


                           Criminal Law

   The panel affirmed the district court’s affirmation of a
conviction before a magistrate judge for three Class B
misdemeanors.

    The panel held that 18 U.S.C. § 3162(d)(2) does not apply
to Class B misdemeanors, and that the charges against the
defendant were therefore properly allowed to proceed
despite the failure to adhere to the time limit set forth in that
paragraph of the Speedy Trial Act.

    The panel rejected the defendant’s contention that the
charges should have been dismissed based on outrageous
government conduct of videotaping the defendant while she
was using the toilet in a holding cell at the police station,
where there was no nexus between that conduct and the
criminal proceeding either in securing the indictment or in
procuring the conviction.


                             COUNSEL

Melinda Haag, United States Attorney; Barbara J. Valliere,
Assistant United States Attorney, Chief, Appellate Division;
and Owen P. Martikan (argued), Assistant United States




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. NICKERSON                     3

Attorney, United States Attorney’s Office, Northern District
of California, San Francisco, California, for Plaintiff-
Appellee.

Paul F. DeMeester (argued) and Treva Stewart, San
Francisco, California, for Defendant-Appellant.


                          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 influence of alcohol in
violation of 36 C.F.R § 1004.23(a)(1); operating a motor
vehicle with a blood alcohol content over 0.08% in violation
of 36 C.F.R. § 1004.23(a)(2); and failure to maintain control
of a vehicle in violation of 36 C.F.R. § 1004.22(b)(1). We
affirm her conviction.

                       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.
4              UNITED STATES V. NICKERSON

    At the police station, Officer Ramos conducted a breath
test on Nickerson and then placed 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 on 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. These
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 abusive 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. While 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.
               UNITED STATES V. NICKERSON                      5

     Nickerson was cited, released, 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 36 C.F.R.
§ 1004.23(a)(1), operating a motor vehicle with a blood
alcohol content over 0.08% in violation of 36 C.F.R.
§ 1004.23(a)(2), and failure to maintain control of a vehicle
in violation of 36 C.F.R. § 1004.22(b)(1).

    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 (1952). The Magistrate Judge
granted the motion and dismissed the case. Although the
Magistrate Judge acknowledged there was no evidentiary or
investigative value to the videotaping, he concluded that,
because the government had not articulated any justification
for the recording, the violation of privacy shocked the
conscience and dismissal of the criminal charges was
warranted.

    The government appealed the dismissal to the District
Court. On appeal, the government submitted a supporting
affidavit from Officer Ramos, in which she explained, among
6              UNITED STATES V. NICKERSON

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 November 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 18 U.S.C. §§ 3161(d)(2) and 3162, based on the
failure to commence trial within seventy days of the date on
which the charges were reinstated. All three crimes with
which Nickerson was charged and convicted are Class B
misdemeanors. Under federal law, unless the section defining
the offense specifically classifies it otherwise, a crime is “a
class B misdemeanor” if the maximum sentence associated
with it is “six months or less but more than thirty days.”
18 U.S.C. § 3559 (a)(7). Each of the charges against
Nickerson carried punishment of “a fine as provided by law,
or by imprisonment not exceeding 6 months, or both,”
36 C.F.R. § 1001.3, and were not classified as other than a
Class B misdemeanor in the sections in which they were
defined, 36 C.F.R §§ 1004.22, 1004.23. The Magistrate
Judge denied the speedy trial motion, holding that the Speedy
Trial Act does not apply to Class B misdemeanors.

    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
              UNITED STATES V. NICKERSON                   7

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 to 18 U.S.C. §§ 3161(d)(2) and 3162
of the Speedy Trial Act. The District Court’s ruling against
Nickerson on this issue—that the Speedy Trial Act does not
apply to Class B misdemeanors—is grounded in an
interpretation of the Speedy Trial Act and so is reviewed de
novo. See United States v. Medina, 524 F.3d 974, 982 (9th
Cir. 2008).

   Title 18 U.S.C. § 3161(d)(2) provides in full,

       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
8                 UNITED STATES V. NICKERSON

         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 18 U.S.C.
§ 3162(a).1

    Nickerson is correct that § 3161(d)(2) does not itself use
the word “offense,” which the Act defines to exclude Class B
misdemeanors. See 18 U.S.C. § 3172(2) (“the term ‘offense’
means any Federal criminal offense which is in violation of
any Act of Congress and is triable by any court established by
Act of Congress (other than a Class B or C misdemeanor or
an infraction, or an offense triable by court-martial, military
commission, provost court, or other military tribunal)”).
When read in the context of the statute as a whole, however,
§ 3161(d)(2) clearly does apply only to “offenses” and so not
to Class B misdemeanors.




    1
     Subsection (a)(1) provides that the charges brought in a criminal
complaint “shall be dismissed or otherwise dropped” if “no indictment or
information is filed within the time limit required by section 3161(b) as
extended by section 3161(h).” 18 U.S.C. § 3162(a)(1). Subsection (a)(2)
provides for dismissal upon the defendant’s motion if the “defendant is not
brought to trial within the time limit required by section 3161(c) as
extended by § 3161(h).” 18 U.S.C. § 3162(a)(2). The last sentence of
§ 3161(d)(2) specifically makes the sanctions set forth in § 3162,
including the dismissal sanction, applicable to violations of the time
requirements of § 3161(d)(2) as well. See also S. Rep. No. 96-212, at 33
(stating, at the time that § 3162(d)(2) was added, the amendment specified
that the “dismissal sanction [is] applicable”).
               UNITED STATES V. NICKERSON                     9

     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 (c) 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
18 U.S.C. § 3161(d),(e). Read together, these provisions
simply carry the original requirements for timely prosecution
through the subset of situations in which an intervening
appeal or dismissal has somehow “reset the clock.” The
provisions in (d), then, do not expand beyond “offenses” the
category of charges to which the time requirements apply.
That this is the proper reading of the Act is further supported
by the fact that, although paragraph (d)(2) does not use the
word “offense,” the provisions referenced in the paragraph do
apply to “offenses” only. See, e.g., 18 U.S.C. §§ 3161(h)(8),
3162(a).

    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 charged 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 § 3161(d)(2); if the same Class B misdemeanor
instead were charged through a citation or violation notice,
dismissed, and then reinstated on appeal, the subsequent trial
would not be subject to these time limitations. No parallel
inconsistency exists for felonies and Class A misdemeanors,
which, unlike a Class B or C misdemeanor, cannot be charged
through a citation or violation notice. See Fed. R. Crim. P.
10               UNITED STATES V. NICKERSON

7(a),(b), 58(b)(1). No reason or explanation appears for
treating these procedural subclasses of Class B misdemeanors
differently for speedy trial purposes.

    Our conclusion that § 3161(d)(2), in particular, does not
apply to Class B misdemeanors is consistent with the prior
statements by this Court that the Speedy Trial Act as a whole
does not apply to Class B misdemeanors. See United States
v. Boyd, 214 F.3d 1052, 1057 (9th Cir. 2000) (“Improper
entrance onto a military base is a Class B misdemeanor, to
which the Speedy Trial Act does not apply.”); United States
v. Talbot, 51 F.3d 183, 185 (9th Cir. 1995) (similar); United
States v. Baker, 641 F.2d 1311, 1319 (9th Cir. 1981)
(similar); see also United States v. Sued-Jimenez, 275 F.3d 1,
8 (1st Cir. 2001) (similar); United States v. Sharpton,
252 F.3d 536, 542 n.7 (1st Cir. 2001) (similar). Our
interpretation also comports with the legislative history of the
Speedy Trial Act.

    The Speedy Trial Act was enacted in 1974.
Section 3161(d)(2) was added by The Speedy Trial Act
Amendments of 1979. Section 3172(2), which contains the
definition of “offense,” has remained substantively the same
since it was originally enacted, although it originally referred
to Class B and C misdemeanors and infractions using the
term “petty offense.”2 The Report of the Senate Judiciary

 2
   Section 3172 originally excluded from the meaning of offense “a petty
offense as defined in section 1(3) of this title.” It was amended in 1984
to exclude instead a “Class B or C misdemeanor or an infraction.” Pub.L.
98-473, Title II, § 223(I), 98 Stat. 2029 (1984).

    At the time that the Speedy Trial Act was enacted, “petty offense”
was defined as, “Any misdemeanor, the penalty for which does not exceed
imprisonment for a period of six months or a fine of not more than $500.”
                  UNITED STATES V. NICKERSON                           11

Committee on the original Act recognized, “The term
‘offense’ is defined in such a manner as to exclude defendants
charged with petty offenses from the speedy trial provisions.”
S. Rep. No. 93-1021, at 49 (1974).3 There is no suggestion in
the legislative history that Congress intended some provisions
of the Act to apply to petty offenses or Class B
misdemeanors.

    As 18 U.S.C. § 3161(d)(2) does not apply to Class B
misdemeanors, the charges against Nickerson were properly
allowed to proceed despite the failure to adhere to the time
limit set forth in that paragraph.

B. Dismissal based on egregious government misconduct

    Nickerson contends that the criminal charges against her
should have been 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


18 U.S.C. § 1(3) (1970). The term now encompasses “a Class B
misdemeanor, a Class C misdemeanor or an infraction . . .” 18 U.S.C.
§ 19.
 3
   Although § 3161(d)(2) was not added until 1979, § 3161(e) did appear
in the original Act. That provision, after which paragraph (d)(2) was
modeled, also does not specifically use the word “offense.” See The
Speedy Trial Act Amendments of 1979: Hearings Before the Senate
Comm. on the Judiciary on S. 961 and S. 1028, 96th Cong., 1st Sess. 55
(1979) (statement of Philip B. Heymann, Asst. Att’y Gen. of the United
States) (recognizing that the proposed § 3161(d)(2) “is equivalent to that
currently provided in section 3161(e) for the analogous case of retrial
necessitated by appellate proceedings . . .”); S. Rep. No. 96-212, at 32–33
(similar); H. Rep. No. 96-390, at 11 (1979) (similar).
12             UNITED STATES V. NICKERSON

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 be 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 outrageous 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
             UNITED STATES V. NICKERSON               13

government was not attempting to collect evidence through
the videotaping and did not do so.

   AFFIRMED.
