865 F2d 265 United States v. L Dickie W

865 F.2d 265

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Jack L. DICKIE and Chester W. Adams, Defendants-Appellants.

Nos. 87-3179, 87-3180.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 12, 1988.
Decided Dec. 27, 1988.

Before EUGENE A. WRIGHT, PREGERSON and REINHARDT, Circuit Judges.

1

MEMORANDUM*

2

We affirm the convictions of Chester W. Adams and Jack L. Dickie. Adams was charged with two counts of conspiracy to commit racketeering and fraud. Dickie was indicted on five counts: racketeering (18 U.S.C. Sec. 1962(c)); conspiracy to racketeer (18 U.S.C. Sec. 1962(d)); conspiracy to commit fraud (18 U.S.C. Sec. 371)); fraud (18 U.S.C. Sec. 1343); and interstate transportation of money stolen by fraud (18 U.S.C. Sec. 2314). Both were convicted on all counts on which they were charged.

3

Adams asserts error in denying his motion to continue the trial and to substitute counsel. Four days before trial, the motions were presented to Judge Lovell, who considered the matter carefully, balancing the defendant's rights in light of the factors considered relevant under United States v. Studley, 783 F.2d 934, 938 (9th Cir.1986). His six-page order concluded that he must proceed with the trial as scheduled. The reasons given for denial of a continuance and for substitution of counsel were sufficient and the judge permitted Adams to use additional counsel if he desired. There was no prejudice to the defendant and no error.

4

Adams asserts that his trial counsel was ineffective but makes only conclusory statements unsupported by specific citations to the record. The contention lacks merit.

5

Dickie argues that he was denied his rights under the Speedy Trial Act, a question that only he raised on the morning of trial. His counsel did not join in the motion. It was denied and Judge Lovell immediately began jury selection. We need not consider the government's argument that Dickie had waived his right to raise the question. The record shows that on January 28, 1987 the judge granted Adams' motion for continuance and directed that the period of delay caused thereby would be excluded from both defendants' speedy trial calculations. He complied with the requirements of the statute, 18 U.S.C. Sec. 3161(h)(8) and Sec. 3161(h)(7).

6

Again, upon application of Dickie, the judge found that an April trial date was unrealistic and that additional time was required for preparation. His order of April 1, 1987, which reset the trial for August 1, was precise, well considered and complied with the statute. The time was properly excluded from the defendants' speedy trial calculations. The Speedy Trial Act was complied with.

7

The appellants assert that the court erred in failing to instruct the jury that proof of an overt act was required to establish a RICO conspiracy under Count II. We review for plain error because that objection was not raised at trial. Count II alleged overt acts. The jury convicted the appellants of substantive offenses that included the commission of those acts. Thus, we find no prejudice and need not reach the issue of whether an overt act is an element of a RICO conspiracy.

8

Finally, the appellants contend that the instructions on Count III failed to identify the specific overt acts charged for the Sec. 371 conspiracy. We find no plain error. The jury convicted Dickie under Count I of substantive offenses that involved the commission of overt acts incorporated by reference in Count III. The jury necessarily found that he had committed overt acts in furtherance of the Count III conspiracy.

9

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3