Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 83 CR 781-1, 83 CR 781-2-Paul E. Plunkett, Judge.
Before CUMMINGS, Chief Judge, RIPPLE, Circuit Judge and PELL, Senior Circuit Judge.*fn*
Nell Scott and Ronald Scott, wife and husband, were convicted on federal charges related to checks stolen from a local government agency that received federal funding. Mrs. Scott was convicted on twenty-two counts of violating 18 U.S.C. § 641 (1948) and one conspiracy count in violation of 18 U.S.C. § 371 (1948). Mr. Scott was convicted on seven counts of violating § 641 and one conspiracy count. Section 641 prohibits the embezzlement or stealing of any "money, or thing of value of the United States or of any department or agency thereof." Section 371 prohibits conspiracy "to commit any offense against the United States, or to defraud the United States, or any agency thereof."
Mrs. Scott was the payroll bookkeeper at the Joliet-Will County Community Action Agency (CAA), a local government agency. During the pertinent time period, CAA received 98% of its funding either directly from the federal government or from state and local agencies that channeled federal funds to CAA. As payroll bookkeeper, Mrs. Scott issued payroll checks when authorized by superiors to do so. Her job gave her access to blank payroll checks and a signature machine which duplicated an authorized signature, as well as the ability to order computer issued paychecks. After the termination of her employment at CAA, twenty-two unauthorized payroll checks were discovered. These checks were issued to "Nell Scott," "Nellie Scott," "Mary Cooper," "Mickey Johnson," "National Bank of Joliet," and the "Union National Bank." Each check was for more than $100 and together they totaled approximately $10,500.
Expert testimony established that some, but not all, of these checks contained fingerprints and/or handwriting of Nell and/or Ronald Scott. Moreover, some of the checks were cashed at banks and currency exchanges which had signature cards on file bearing the name that appeared on the check but in the handwriting of one of the defendants. Furthermore, Mrs. Scott was identified by both a currency exchange employee and a bank employee as being the woman who attempted to or did cash some of the checks. A search of the Scotts' residence recovered other CAA checks made out to "Mary Cooper" and "Mickey Johnson," and an identification card for "Mary Cooper" with Mrs. Scott's picture on it.
Following a joint bench trial, at which neither defendant presented any witnesses, both defendants were convicted on all counts in their indictments. Each defendant was sentenced to five years probation. Mr. Scott was also sentenced to sixty days work release. Though represented by separate attorneys at trial, defendants appear before us pro se ; they filed consolidated briefs.
Mrs. Scott claims that delays in her trial violated the Speedy Trial Act (Act), 18 U.S.C. §§ 3161-3174 (1979).*fn1 Under the Act, her trial had to commence within seventy days after she made her first appearance. Id. § 3161(c)(1). She first appeared on September 29, 1983 and her trial did not begin until November 1, 1984. However, the district court properly excluded four periods of time from the seventy-day computation.
Absent legal error, exclusions of time cannot be reversed except when there is an abuse of discretion by the court and a showing of actual prejudice. See United States v. Tedesco, 726 F.2d 1216, 1221 (7th Cir. 1983); United States v. Aviles, 623 F.2d 1192, 1196 (7th Cir. 1980). Continuity of counsel is a legitimate ground for excluding time. See 18 U.S.C. § 3161(h)(8)(B)(iv); United States v. Jones, 712 F.2d 1316, 1323 (9th Cir.), cert. denied sub nom., Webber v. United States, 464 U.S. (1983). It was not an abuse of discretion to grant a three-week delay and exclusion while defense counsel was on leave from her office so that defendant could continue to be represented by the same counsel.
The Act specifically provides that time may be excluded for delays caused by proceedings and examinations concerning the defendant's mental competency. 18 U.S.C. § 3161(h)(1)(A). The seven-month delay caused while determining that defendant was competent was not excessive in light of the fact that it was necessary to have extensive testing by two psychiatrists. It was well within the court's discretion to order a second psychiatric examination following the hearing on March 16. See United States v. Crosby, 713 F.2d 1066, 1078 (5th Cir.), cert. denied, 464 U.S. 1001, 78 L. Ed. 2d 696, 104 S. Ct. 506 (1983); United States v. Howell, 719 F.2d 1258, 1261-62 (5th Cir. 1983) (per curiam), cert. denied, 467 U.S. 1228, 104 S. Ct. 2683, 81 L. Ed. 2d 878 (1984). Defendant argues that her case is distinguishable because, although her attorney desired a competency hearing, defendant herself did not. However, the statute permits exclusion for "any" competency examination, not just those personally requested by the defendant. 18 U.S.C. § 3161(h)(1)(A). Moreover, when the initial competency examination was ordered, defendant was the one who originally suggested that an examination by a second doctor might be desirable. Pretrial Tr. at 22. When the second examination was ordered, defendant did not object. Pretrial Tr. at 30-35.
The court also properly excluded two other periods of time. Section 3161(h)(7) specifically permits exclusions for the joinder of defendants. There is "a strong congressional preference for joint trials and an intention that delays resulting from the joinder of codefendants be liberally construed." United States v. Dennis, 737 F.2d 617, 621 (7th Cir.), cert. denied, 469 U.S. 868, 105 S. Ct. 215, 83 L. Ed. 2d 145 (1984) (quoting United States v. Novak, 715 F.2d 810, 814 93d Cir. 1983), cert. denied sub nom. Ware v. United States, 465 U.S. 1030, 79 L. Ed. 2d 694, 104 S. Ct. 1293 (1984)). Any delay applicable to one defendant is applicable to all defendants. Dennis, 737 F.2d at 620. Initially, a thirty-day delay was necessary because Mr. Scott could not be brought to trial less than thirty days after his appearance. See 18 U.S.C. § 3161(c)(2). The delay beyond thirty days was reasonable, not an abuse of discretion. See Dennis, 737 F.2d at 621-22. Exclusions of time to ensure that defendant could get along with counsel, and later on, to allow time for new counsel to familiarize himself with the case were also within the discretion of the court. Cf. 18 U.S.C. § 3161(h)(8)(B)(iv) (reasonable time to obtain counsel).
Defendant also claims her sixth amendment right to a speedy trial was denied. Defendant fails to meet the requirements of such a claim, particularly the showing of prejudice. Compare United States v. Jackson, 542 F.2d 403, 405-09 (7th Cir. 1976) (delays related to psychiatric examinations); Crosby, 713 F.2d at 1078-79 (same); See also United States ex rel. Mitchell v. Fairman, 7 ...