## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 6 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MARY KATHERINE JOHNSON, Defendant-Appellant, No. 96-3337

Appeal from the United States District Court

for the District of Kansas (D.C. No. 96-CR-20013-1)

Submitted on the briefs: Jackie N. Williams, United States Attorney, and Rob ert S. Streepy, Assistant United States Attorney, District of Kansas, Kansas City, Kansas, for PlaintiffAppellee. Roger L. Sherman, Overland Park, Kansas, for Defend ant-Appellant.

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

SEYMOUR , Chief Judge.1 Although we hold that Ms. Johnson’s Speedy Trial Ac t rights were

violated and that the indictment must therefore be dismissed, see 18 U.S.C. § 3162(2), we must nonetheless address the sufficienc y of the evidence because the district court may determine on remand that the cas e should be dismissed without prejudice to retrial, see id. If the evidence is not sufficient to support the conviction, the Double Jeopardy Clause would bar a retrial. See United States v. Taylor , 113 F.3d 1136, 1144 n.3 (10th Cir. 1997). -2- Mary Johnson was charged with one count of devising and aiding and abetting the execution of a scheme to defraud, in v iolation of 18 U.S.C. §§ 1343, and 2. She was found guilty by a jury, sentenced t o probation, and ordered to pay restitution. On appeal, she contends that the evid ence was insufficient to support her conviction and that she was tried in violation of both her constitutional right to a speedy trial and the Speedy Trial Act, 18 U.S. C. §§ 3161 to 3174. We hold that her trial violated the Speedy Trial Act, and w e reverse and remand to the district court for further proceedings.

I We turn first to the sufficiency of the evidence. 1 “The elements of wire fraud under 18 U.S.C. § 1343 are: ‘(1) a scheme orartifice to defraud or obtain money by false pretenses, representations or promis es; and (2) use of interstate wire communications to facilitate that scheme.’” Un ited States v. Cochran , 109 F.3d 660, 664 (10th Cir. 1997) (quoting United Stat es v. Drake , 932 F.2d 861, 863 (10th Cir. 1991)). In reviewing a challenge to the sufficiency of the-3-

evidence, we must determine whether, after viewing the record most favorably to the government, “ anyrational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt. In answeri ng this question, we may neither weigh conflicting evidence nor consider the credibility of witnesses.” United States v. Pappert , 112 F.3d 1073, 1077 (10th Cir. 1997) (citations and internal quotations omitted). Viewed in this light, the record reveals that Ms. J ohnson participated in a scheme in which she and her brother, Thomas Whitlow , and others selected elderly victims from phone books and elsewhere, cal led the victims pretending to be a relative in trouble, and requested the victims to wire money for bail or for other fabricated emergencies. In support of the sp ecific incident underlying the charge against Ms. Johnson, the government offered evidence that Mr. Whitlow placed several phone calls from a jail cell in whic h he was being held. The first call was placed collect to the victims, Mr. and Mrs . Ledbetter. The Ledbetters testified that they received a call and spoke with two men, one who claimed to be their grandson and the other who claimed to be a po lice officer. The men told Mr. Ledbetter that the purported grandson had been involved in an accident and needed $4000 to post bail and get out of jail. The Ledbetters wired the money via Western Union. Ms. Johnson, accompanied by members of her family and Jonathan Young, went to a grocery store with a West ern Union office. Mr. Young-4-

went into the store, obtained the wired funds, and gave the money to Ms. Johnson, who in turn gave Mr. Young $200. Thomas Whitlow th en called Ms. Johnson’s phone number from jail and arranged three-way calls to the Ledbetters. One call informed the victims that the $4000 had been receiv ed and another unsuccessfully requested an additional $6000. Although Ms. Johnso n presented an alibi defense at trial, the telephone records, the testimony of J onathan Young, and the evidence of admissions made by Ms. Johnson during two interv iews with a police officer investigating Thomas Whitlow, are clearly sufficient to support a finding that she was a knowing participant in the scheme. Ms. Johnson asserts the evidence is insufficient be cause there was no indication she participated in the first phone call made collect from the jail to the Ledbetters, in which they were requested to wire th e $4000. Relying on United
States v. Maze , 414 U.S. 395 (1974), Ms. Johnson contends the fraudulent scheme was completed by that first phone call so that her subsequent actions in placing the three-way calls, recruiting Mr. Young to retrie ve the money, and dividing it were therefore not taken in furtherance of the sche me. In Maze , the Supreme Court held that because the fraudulent scheme there had come to fruition before the mailings in question were made, the mailings we re not sufficiently related to the scheme to fall within the purview of the mail f raud statute. See generally United States v. Cardall , 885 F.2d 656, 680-82 (10th Cir. 1989) (discussing2As we pointed out in note 1, because dismissal unde r the Speedy Trial Act

may be ordered without prejudice, we must consider arguments that, if successful, would bar retrial. Preindictment delay that rises to a constitutional violation requires dismissal of the indictment with prejudice to retrial, see United States v. Marion , 404 U.S. 307, 324 (1971), and we therefore addres s this argument despite our resolution of the Speedy Trial Act issue. -5- Supreme Court’s treatment of the scope of the mail fraud statute). Ms. Johnson’s assertion that the fraudulent scheme here came to f ruition upon completion of the first phone call to the victims is ludicrous and he r reliance upon Maze is therefore unavailing. Moreover, while the government need no t prove a gain or a loss to establish a wire fraud violation, see United States v. O’Malley , 535 F.2d 589, 592 (10th Cir. 1976), a defendant is guilty of aiding and abetting wire fraud when a fraudulent scheme does bear fruit if she is a knowi ng participant in bringing about the successful completion of the scheme. The evide nce here showed Ms. Johnson’s participation in obtaining the $4000 defr auded from the Ledbetters. The evidence was more than sufficient to support he r conviction.

II The acts underlying the charged crime occurred in J uly 1994 and the indictment was filed in February 1996. Ms. Johnsoncontends the government’s delay in indicting her violated her constitutional rights to a speedy trial, citing Barker v. Wingo , 407 U.S. 514 (1972). 2We agree with the government that Ms.-6-

Johnson’s reliance on Barker v. Wingo is misplaced. That case concerned a defendant’s Sixth Amendment right to a speedy trial , a right that is not triggered until an accused is formally charged or arrested. See United States v. Marion , 404 U.S. 307, 320 (1971). Ms. Johnson bases her co nstitutional claim on preindictment delay, a matter receiving limited pro tection under the Due Process Clause of the Fifth Amendment. See United States v. Lovasco , 431 U.S. 783, 789 (1977). Preindictment delay is not a violation of the Due Process Clause unless the defendant shows both that the delay caused actu al prejudice and that the government delayed purposefully in order to gain a tactical advantage. United States v. Engstrom , 965 F.2d 836, 839 (10th Cir. 1992). Ms. Johnson has failed to make either showing. She asserts generally that her alibi defense was prejudiced by the lapse of ti me because the memories of potential witnesses have faded. However, she fails to identify any specific witnesses who would have been able to testify favor ably to her had the trial been held earlier. Vague and conclusory allegations of prejudice resul ting from the passage of time and the absence of witnesses are in sufficient to constitute a showing of actual prejudice for the pu rposes of impermissible preindictment delay; defendant must b e able to show definite and not speculative prejudice, and in whatspecific manner missing witnesses would have aided his defense. United States v. Jenkins , 701 F.2d 850, 855 (10th Cir. 1983). Ms. Johnson has also failed to establish that the d elay was undertaken-7-

purposefully by the government to gain a tactical a dvantage or to harass. Indeed, Ms. Johnson concedes she does not know the reason f or the delay. See Aplt.’s Br. at 14. The record likewise contains no evidence th e government delayed indicting her for improper reasons. Ms. Johnson has thus fai led to establish a constitutional violation arising from preindictment delay.

III Ms. Johnson contends her rights under the Speedy Tr ial Act were violated. The Act provides that a defendant must be tried within seventy days from the filing date of the indictment or from the date on w hich the defendant appears before a judicial officer, whichever date is later. See 18 U.S.C. § 3161(c)(1). The indictment was filed on February 15, 1996, and Ms. Johnson made her appearance on February 20, 1996, starting the Speedy Trial Act clock. Trial was originally scheduled to commence on May 1 3, 1996, a date within the seventy day period as extended by time attribut able to pretrial motions under section 3161(h)(1)(F). On that date, the court hel d a hearing and ordered a continuance because it was engaged in another trial and no other district judge was available to take the case. At the hearing, th e government requested the court to make a finding under section 3161(h)(8)(A) that the ends of justice would be served by a continuance, and also requested the cou rt to note for the record that-8-

the government would find a continuance “helpful . . . in providing transportation” for the Ledbetters, who lived in North Caro lina. Rec., vol. II at 3. The court made an oral finding that a continuance wouldserve the ends of justice, giving as its only reason that the first available date for trial was June 24. The government subsequently filed a written motion requesting the court to supplement the oral findings in support of the cont inuance by adding an additional finding that the continuance was needed to arrange transportation for the government’s witnesses and to extend the trial date past the scheduled sentencing date for defendants in related cases who were to testify for the government at Ms. Johnson’s trial. In response, th e court issued an order adding the first of these reasons to its earlier finding that the ends of justice would be served by the continuance. Trial commenced on June 24. The parties agree on appeal that the trial was only timely if the contin uance ordered by the court on May 13 pursuant to section 3161(h)(8)(A) resulted i n excludable time. The Speedy Trial Act specifically states that “no c ontinuance under [section 3161(h)(8)(A)] shall be granted because of general congestion of the court’s calendar.” 18 U.S.C. § 3161(h)(8)(C). The prosecution acknowledges this prohibition on appeal, but contends the supple mental findings entered on the record subsequent to the grant of the continuance m ake clear that the district court did not rely on its calendar alone in postponing tr ial. In United States v. Doran ,-9-

882 F.2d 1511, 1516-17 (10th Cir. 1989), we address ed the circumstances in which findings in support of an ends-of-justice continuance made on the record after the continuance was granted, as in this case, will be considered to support that continuance. We held: Although findings may be entered on the record after the fact, they may not be made after the fact. The balancing must occur contemporaneously with the granting of the continuance because Congress intended that the decision to grant an end s-of-justice continuance be prospective, not retroactive; an ord er granting a continuance on that ground must be made at the outs et of the excludable period. A final general principle thus follows: if findings are entered ex post facto, it must be clear from the record that [the court] did consider the factors identifie d by the statute when it granted the continuance. Id. at 1516 (internal quotations and citations omitted ); see also United States v. Spring , 80 F.3d 1450, 1456-57 (10th Cir. 1996) (applying Doranand rejecting Speedy Trial Act challenge to nunc pro tuncfindings when record indicated trial court made sufficient contemporaneous findings); Un ited States v. Pasquale , 25 F.3d 948, 951-52 (10th Cir. 1994) (applying Doranand reversing conviction when record contained no contemporaneous findings). Applying Doranto the instant circumstances, we have reviewed the May 13 hearing to determine whether it contains some indic ation the district court adopted at that time the government’s additional re asons in granting the continuance, or whether the court relied exclusivel y on the forbidden factor of calendar congestion. Immediately after the governm ent suggested the additional-10-

factors to the court, the court made the following ruling.

Well, the Court does find that the case must be continued and I find that the ends of justice served by continuing the case outweigh the best interests of the public and the defendant in a speedy trial. My reasons for that finding are that the first avai lable date that the Court will have to commence this trial is June 24, 1996. The Court has made efforts to determine if other members of the Court would be available to try this case at an earlier date an d unfortunately they are not. If it develops that the case can be tried sooner byme or by some other judge of the Court, this date may be adv anced. I want you to understand that. But for the present, the c ase is continued to June 24, 1996 at 1:30 p.m. for the reason that the Court is presently engaged in trial and is not available. Rec., vol. II at 4-5 (emphasis added). Thus, at the time the court granted the ends-of-jus tice continuance in this case, the only factor it relied on, or even mention ed, was its calendar. “The requirements of the Speedy Trial Act are specific, and Congress intended exact compliance with those requirements.” Doran , 882 F.2d at 1517. “Neither a congested court calendar nor the press of a judge’s other business can excuse delay under the Act.” United States v. Andrews , 790 F.2d 803, 808 (10th Cir. 1986) We have held that the ends-of-justice contin uance is “a ‘rarely used tool,’”
Doran , 882 F.2d at 1515, and that the record must clearl y establish the court considered the proper factors at the time the conti nuance was granted, id. at 1516. We therefore reject the government’s argument that post hoc findings, made at the urging of the government to overcome the court’s ob vious reliance on an-11-

improper factor, are sufficient to validate the con tinuance. Indeed, the government’s position appears somewhat disingenuous. In the district court, the government characterized its po st hoc motion as one for supplemental findings in support of the continuance, moving the court to make additionalfindings. Rec., vol. I, doc. 32. We view this as an admission that the court in fact had not made those findings at the ti me the continuance was granted. Cf. Spring , 80 F.3d at 1457 (government characterized its mot ion for nunc pro
tuncfindings as request to “simply formalize rulings p reviously made . . . as reflected . . . in the recorded proceedings”). Mor eover, despite its purported need for more time to bring in its out-of-state witnesse s, the government announced it was ready for trial on May 13 and Mr. Ledbetter tes tified at trial that he would have been there for trial on May 13. Finally, we p oint out that one of the reasons the government set out in its motion for additional findings was not even mentioned by the government at the time the continu ance was granted. Accepting such findings here, in the absence of any indicatio n the court relied on those findings at the time the continuance was granted, w ould violate both the letter and the spirit of the Act. See Andrews , 790 F.2d at 808.

Accordingly, we conclude that Ms. Johnson’s Speedy Trial Act rights were violated, and the charge against her must therefore be dismissed. Such a dismissal-12-

may be with or without prejudice. See 18 U.S.C. § 3162(2). In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circu mstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the admin istration of justice. Id. We observe in this regard that Ms. Johnson bears no responsibility for the circumstances leading to the Speedy Trial Act violation, and that she properly asserted her rights under the Act. We further obse rve that the government delayed almost two years in indicting her for a rel atively uncomplicated offense. Ms. Johnson suffers from serious health problems an d was sentenced to three years probation, of which she was to serve ninety d ays in a half-way house, and ninety days on home detention under electronic moni toring. Both of these periods have passed. Under these circumstances, we believe it appropriate to follow our general practice and remand to the trial court to a ssess whether the dismissal should be with or without prejudice. See Doran , 882 F.2d at 1518.
REVERSED and REMANDED for further proceedings.