                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 06 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50618

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00246-JLS-2

  v.
                                                 MEMORANDUM*
RICARDO BONILLA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                            Submitted March 4, 2015**
                               Pasadena California

Before: GOULD and TALLMAN, Circuit Judges and KORMAN,*** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Defendant Ricardo Bonilla appeals his conviction of conspiracy to defraud

the United States, in violation of 18 U.S.C. § 286, in connection with a large

fraudulent tax-refund scheme. Bonilla contends that the district court erred in

denying his motion to dismiss the indictment due to his asserted violations of his

statutory and constitutional speedy trial rights. We have jurisdiction under 28

U.S.C. § 1291. We affirm.

      1. The district court properly granted the two trial continuances based on

the “ends of justice” exclusion under 18 U.S.C. § 3161(h)(7), because the

continuances were limited in time and justified on the record with reference to the

facts as of the time the delay was ordered. See United States v. Lewis, 611 F.3d

1172, 1176 (9th Cir. 2010). Both continuances were limited in time. The

continuances were also justified on the record by the complexity of this case and

defense counsel’s requests for adequate time to prepare for trial.

      2. Bonilla does not contest that the statutory factors support the district

court’s grant of the continuances; rather, he contends that his statutory speedy trial

rights were violated because the government did not timely disclose to the district

court former defense counsel’s conflict of interest from representation of other

parties and that the same counsel was deficient in his duties during discovery.

Bonilla points to no authority that imposes a duty on the government to monitor


                                          2
the defense’s discovery progress and tell the court when it sees a deficiency.

Bonilla was represented by counsel, and it was defense counsel’s professional

responsibility to diligently pursue discovery and preparations for trial.

      Bonilla cites Mannhalt v. Reed, 847 F.2d 576, 583–84 (9th Cir. 1988) in

support of his position that the government had a duty to timely notify the district

court of defense counsel’s conflict of interest. But Mannhalt contains no

discussion about the government’s duty to timely notify the district court of

defense counsel’s conflict of interest, and Bonilla concedes that “the obligation is

upon defense counsel to alert the court of potential conflicts.” We conclude that

the pretrial continuances did not violate Bonilla’s statutory speedy trial rights.

      3. The district court also did not err in concluding that Bonilla’s

constitutional speedy trial rights were not violated. To determine whether a

defendant’s constitutional speedy trial rights are violated, we consider four factors:

“(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s

assertion of his right to a speedy trial; and (4) the prejudice to the defendant.” See

United States v. Gregory, 322 F.3d 1157, 1161 (9th Cir. 2003) (citing Barker v.

Wingo, 407 U.S. 514, 530 (1972)). Among the four related factors, the reason for

the delay is the “focal inquiry.” See United States v. King, 483 F.3d 969, 976 (9th

Cir. 2007) (internal citation omitted).


                                           3
      A balanced and fair analysis of the four Barker factors requires us to

conclude that Bonilla’s constitutional speedy trial rights were not violated. First, a

22-month delay is not considered so excessively long that it would weigh heavily

in Bonilla’s favor. See Gregory, 322 F.3d at 1162. Second, Bonilla’s former

defense counsel, who did not retrieve discovery from the government and did not

notify the district court of his potential conflict of interest, was more to blame for

the pretrial delay. Former defense counsel was Bonilla’s agent, so his acts were

charged against Bonilla. See Vermont v. Brillon, 556 U.S. 81, 90–91 (2009)

(“Because the attorney is the defendant’s agent when acting, or failing to act, in

furtherance of the litigation, delay caused by the defendant’s counsel is also

charged against the defendant.”) (internal citation omitted). The second factor set

out by the Supreme Court in Barker and applied by us in Gregory thus weighs

against Bonilla. Third, the district court was correct that even assuming that

Bonilla promptly asserted his speedy trial right, this factor weighs neither for nor

against him. Fourth, Bonilla did not raise in his opening brief that he suffered

prejudice as a result of the pretrial delay, so this argument is waived. See Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Even assuming that Bonilla did not

waive his argument of prejudice, the record does not show any actual prejudice to

Bonilla. To the contrary, the reason why the district court granted the continuances


                                           4
was to allow defense counsel adequate time to prepare for trial, in order to avoid

prejudice to Bonilla.

      AFFIRMED.




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