Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 672-5-Elaine E. Bucklo, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before WOOD, EVANS , and SYKES, Circuit Judges.*fn1
Azureeiah O'Connor was convicted by a jury of wire fraud and appeals her conviction on multiple grounds. She focuses first on the 1,229-day delay between the date the last of her co-defendants was arraigned and the start of her trial, a delay that she contends violated the Speedy Trial Act (the "Act"), 18 U.S.C. §§ 3161 et seq., and her right to a speedy trial under the Sixth Amendment.She also challenges the jury instructions, the sufficiency of the evidence to sustain her conviction, and the form of the indictment that went to the jury.
The Speedy Trial Act claim is the main event. The Act generally requires that trials commence within 70 days of a defendant's arraignment or indictment (whichever is later), but also permits district courts to exclude certain periods of time from this 70-day clock. See id. § 3161(h)(7). In a series of continuances, the district court excluded all 1,229 days and later denied O'Connor's motion to dismiss on Speedy Trial Act grounds. On appeal O'Connor challenges many of the court's exclusions, but review of some of the claimed violations is hampered by her failure to raise them in the district court. To preserve an alleged Speedy Trial Act violation for appeal, the Act requires the defendant to move to dismiss prior to trial and generally (with one exception) places the burden on the defendant to prove the violation. Any violation not preserved by a motion to dismiss is waived. Id. § 3162(a)(2).
O'Connor's motion to dismiss challenged just one of the court's continuances; on appeal she advances several additional violations that she did not identify below. Her failure to specifically identify the additional violations in her motion may preclude appellate review under the Act's waiver provision; at the very least, it is a forfeiture, and review would be limited to the plain-error standard. Either way, O'Connor cannot prevail. Although the government concedes that one exclusion of time-for 42 days-was improper, that error alone doesn't put O'Connor's trial outside the statute's 70-day limit. As to the other claimed violations, O'Connor has not established that the continuances amounted to error, let alone plain error.
One particular challenge, however, relates to an intervening change in the law and deserves special mention. O'Connor argues that the court improperly excluded two time periods attributable to preparation of pretrial motions without making the findings required under § 3161(h)(7), the provision that broadly authorizes the court to exclude time from the speedy-trial clock based on the "ends of justice." See Bloate v. United States, 130 S. Ct. 1345, 1357-58 (2010). Under circuit precedent then in effect, these delays were automatically excludable under a different provision of the Act authorizing the exclusion of time for "delay resulting from any pretrial motion." See 18 U.S.C. § 3161(h)(1)(D); United States v. Tibboel, 753 F.2d 608, 610 (7th Cir. 1985). But the Supreme Court's decision in Bloate displaced Tibboel and applies to cases (like O'Connor's) pending on direct review. See United States v. Townsend, 419 F.3d 663, 665 (7th Cir. 2005). Because O'Connor failed to identify these particular violations in her motion to dismiss, our review is (at most) for plain error. As to the first of these continuances, we find no error at all; the court made sufficient findings to satisfy § 3161(h)(7) and Bloate. As to the second, the continuance was for only 11 days and did not put the total over the 70-day statutory limit.
We also reject O'Connor's Sixth Amendment speedy-trial claim, as well as her challenges to the jury instructions, the sufficiency of the evidence, and the form of the indictment that went to the jury room. We therefore affirm O'Connor's conviction.
On July 25, 2005, O'Connor and eight co-defendants were charged in a 13-count indictment with mail fraud, wire fraud, and filing false loan applications in violation of 18 U.S.C. §§ 1341, 1343, and 1014. The indictment alleged that O'Connor participated in a mortgage-fraud scheme masterminded by her co-defendant Shaun Cross. O'Connor, who worked as a mortgage-loan officer and helped to facilitate the fraud, was charged with two counts of wire fraud as an aider and abettor in violation of 18 U.S.C. §§ 1343 and 2.
O'Connor's trial did not begin until January 2009, three and a half years after her indictment. The complexity of the case, scheduling problems, guilty pleas by O'Connor's co-defendants, and other contingencies led to a series of continuances in which the court excluded all time from August 22, 2005-the day O'Connor's speedy-trial clock began to run-until January 5, 2009, *fn2 attributable to guilty-plea proceedings involving her co-defendants; most pleaded guilty between 2006 and early 2008, and the final co-defendant pleaded guilty on March 6, 2008. After these guilty pleas, the government dismissed one of the wire-fraud counts against O'Connor. Thus, what began as a nine-defendant, thirteen-count mortgage-fraud prosecution was whittled down to a single-defendant, one-count case for trial.
On the eve of trial, O'Connor filed a motion to dismiss based on the Speedy Trial Act. Her motion challenged only one of the court's exclusions of time: The judge's decision to reset the trial date from September 4, 2008, to January 5, 2009, "in the interest of justice for trial preparation" under 18 U.S.C. § 3161(h)(7). Just before starting jury selection, the court denied O'Connor's motion, clarifying that this continuance was actually granted under § 3161(h)(3)(A) based on the unavailability of an essential government witness and was not an "ends of justice" continuance under § 3161(h)(7).
Trial began on January 5 and lasted four days. The government's evidence provided a detailed account of a sustained fraudulent scheme spanning more than two the day O'Connor's trial began. Much of the delay was years, from September 2000 to January 2003, and organized by Cross, a mortgage broker. The fraud involved more than $6 million in mortgage loans in 35 transactions on 17 residential properties using the names of 17 different straw buyers. The loans were provided by 23 banks and residential lenders, and Cross paid the straw buyers $5,000 for the use of their names and Social Security numbers. Some straw buyers also signed the fraudulent mortgage-loan documents. Cross told the straw buyers that he would repurchase the homes within a few months and make the mortgage payments in the interim. After each transaction closed, Cross received the mortgage funds through title-insurance companies that he owned, kept the money, and did not make the mortgage payments. He also used the straw buyers' identities to fraudulently obtain additional mortgages. The other defendants, including O'Connor, acted as "recruiters" who enlisted straw buyers to falsely put mortgages in their names.
At the time the fraudulent scheme was carried out, O'Connor worked as a loan officer at Express Mortgage Company and Home First Mortgage Company, licensed mortgage brokers. The evidence established that she processed seven fraudulent loan packages and forwarded them on to lenders for funding with knowledge that the identities of the buyers in the loan packages were false and that Cross was the real purchaser. The loans were eventually placed in default. In exchange for her assistance, O'Connor received roughly $20,000 in kickbacks from Cross.
The jury convicted O'Connor of one count of wire fraud, and she was sentenced to 50 months' imprisonment. Cross, the mastermind of the mortgage-fraud scheme, received the longest sentence of any of the co-defendants- 140 months. See United States v. Cross, 273 F. App'x 557 (7th Cir. 2008). This appeal followed.
The primary issue on appeal is O'Connor's challenge to the district court's denial of her motion to dismiss under the Speedy Trial Act. Our review is generally de novo, United States v. Napadow, 596 F.3d 398, 402 (7th Cir. 2010), but factual findings are reviewed for clear error, United States v. King, 338 F.3d 794, 797 (7th Cir. 2003).
The Act requires criminal trials to begin within 70 days of the indictment or the defendant's initial appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1). Where, as here, the defendant is jointly charged with code-fendants, the speedy-trial clock starts when the last co-defendant is indicted or arraigned, so long as the intervening delay is "reasonable." Id. § 3161(h)(6). If the defendant is not brought to trial within the 70 days specified in the Act, "the information or indictment shall be dismissed on motion of the defendant." Id. § 3162(a)(2). The Act recognizes, however, that certain delays are justifiable and permits these periods of time to be excluded from the 70-day clock. Id. § 3161(h); see also Bloate, 130 S. Ct. at 1351-52; Napadow, 596 F.3d at 402.
Two provisions of the Act are particularly relevant to this appeal. The first is known as the "ends of justice" provision, which permits the court to exclude delays resulting from continuances granted "on the basis of [the judge's] findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(7)(A). The Act outlines several factors the trial*fn3 judge should consider in determining whether to grant an ends-of-justice continuance, including "[w]hether the failure to grant such a continuance . . . would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation . . . ." Id. § 3161(h)(7)(B)(iv). The statute requires the court to "se[t] forth, in the record of the case, either orally or in writing, its reasons" for granting an ends-of-justice continuance. Id. § 3161(h)(7)(A). The Supreme Court has determined that "the Act is ambiguous on precisely when [the required] findings must be 'se[t] forth in the record of the case.' " Zedner v. United States, 547 U.S. 489, 507 (2006). But Zedner held that "at the very least the Act implies" that the district court must enter the findings into the record not later than the time the court rules on a defendant's motion to dismiss. Id.
The other Speedy Trial Act provision relevant here, which the district court invoked to justify the continuance O'Connor specifically challenged in her motion to dismiss, permits the exclusion of "[a]ny period of delay resulting from the absence or unavailability of . . . an essential witness." 18 U.S.C. § 3161(h)(3)(A). When the unavailable witness will testify for the government, the government bears the burden of justifying the exclusion of time. Id. § 3162(a)(2).
O'Connor's 70-day speedy-trial clock started on August 22, 2005, the day the last of her co-defendants was arraigned. Trial began on January 5, 2009, a delay of 1,229 days. Although the court excluded all 1,229 days, the government concedes-and we agree-that the district court erred by excluding 42 days from May 19, 2008, to July 1, 2008. This delay was attributable to the court's scheduling problems, and the Act explicitly prohibits the court from excluding time based on "general congestion of the court's calendar." Id. § 3161(h)(7)(C). (We will have more to say about this error later.) O'Connor's argument therefore implicates the 28 days remaining on the speedy-trial clock. ...