NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 1264

_____________ UNITED STATES OF AMERICA

v. WENDIE MICHEL BROWN,

Appellant

____________ On Appeal from the District Court of the U nited States Virgin Islands District Court No. 3

- 08

- cr - 00055

- 001 District Judge: The Honorable Curtis V. G ó mez Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 1 7 , 2010 Before: McK EE , Chief Judge , FUENTES and SMITH, Circuit Judges

(Filed: December 29, 2010 )

_____________________ OPINION

_____________________ SMITH, Circuit Judge. A petit jur y convicted Wendie Michel Brown of nineteen counts of wire fraud in violation of 18 U.S.C. § 1343. This timely appeal followed. Brown presents f our questions for review: (1) whether the District Court erred in den ying her motion to dismiss the I ndictmen t for violations of the Speedy Trial Act and the Sixth Amendment2

guarantee of a speedy trial; (2) whether the District Court erred in excluding testimony regarding her employment discrimination claim ; (3) whether certain errors that occurred in the grand j ury proceeding warranted dismissal of the I ndictment ; and (4) whether the admission of certain original documents used in executing the wire fraud scheme was improper. 1 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a). W e exercise jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm

. A grand jury returned an I ndictment on November 6, 2008, charging Brown with nineteen counts of wire fraud in violation of 18 U.S.C. § 1343. The I ndictment alleged that Brown, while e mployed by the Bank of Nova Scotia as an assistant mana ger of sales and marketing, fraudulently created nineteen bank checks and debit slips as though they represented payment for an invoice for Bank supplies . The checks, however, were deposited in an acc ount, from which Brown access ed the funds. 2
An assistant federal public defender entered an appearance for Brown. Thereafter, def ense counsel filed a motion to extend the time for filing pretrial motions, citing the production of numerous documents and a rapidly approaching trial date. On the heels of this motion, Brown filed an Application and Checklist for Speedy Trial Extension

1 Although Brown presents an additional issue for our review, she did not provide any legal argument on that issue. Because an appellant‟s failure to present legal argument in support of an issue constitutes a waiver of that issue on appeal, we do not address the unargued question listed in Brown‟s “Questions Presented for Review,” i.e. , “Whether the [District] Court erred in sustaining objec tions to counsel‟s opening , presentation of witnesses and evidence on behalf of Wendie Brown.” See Kost v. Kozakiewicz , 1 F.3d 176, 182 (3d Cir. 1993) (citing Fed. R. App. P. 28).

2 A Superceding Indictment and a Second Superceding Indictment were file d, respectively, in July and September of 2009, alleging the same nineteen counts of wire fraud in violation of 18 U.S.C. § 1343. The differences are not material to our decision.3

(Application) that “move[d]” the District Court “to extend the period of time within which this matter must be tried[.]” Th e Application indicated that Brown was aware of the requirements of the S peedy T rial Act, 18 U.S.C. § 3161 et seq. , that additional time was needed to explore plea options and to adequately prepare for trial, that she voluntarily and knowingly waived her r ight to a speedy trial under the Act , and that she sought this extension with the advice and consent of counsel. On January 12, 2009, the District Court granted an extension until March 9, 2009, and specifically found that the extension “would be in the b est interest of justice” because of the demands of discovery and the need for reasonable time to prepare for trial. In February of 2009, Brown filed a second Application, “mov[ing] ” for an extension of the trial date to June 9, 2009. This second Applica tion cited the need for further discovery, review and expert consultation. It was signed by both B rown and her defense counsel . The Court did not rule o n the motion, holding several status conferences instead . Brown filed a third A pplication on May 8, 2 009. This too was signed by Brown and her defense counsel. On June 3, defense counsel filed another motion to continue, which explained that Brown had received a favorable decision in an employment discrimination matter , and that counsel needed time to d etermine if this would provide her with a defense. On June 4, Brown‟s current counsel filed an entry of appearance, and within days moved to continue the trial date. The Court granted a request by Brown‟s assistant federal public defender t o withdraw. On July 15, Brown‟s current counsel filed a motion to dismiss the I ndictment based on violations of the Speedy Trial Act and the Sixth4

Amendment guarantee of a speedy trial. After a hearing, the District Court denied the motion to dismiss. In a thorough memorandum opinion, the Court explained its computation under the Speedy Trial Act, concluding that there had not been a violation of the Act‟s 70

- day time limit. In reaching this conclusion, the Court treated Brown‟s Applications as motions that tolled the speedy trial clock under 18 U.S.C. § 3161(h)( 1 ) (D)

. Thereafter, additional motions were filed before trial commenced on September 28, 2009. Three days later, the jury found Brown guilty on each of the nineteen counts of wire fraud. On appeal, Brown contends that the District Court erred in denying her motion to dismiss for speedy trial violations. She does not take issue with the District Court‟s calculation. Rather, she contends that the Court erred by considering the Applications as
motion s that tolled the speedy trial clock. This was error, according to Brown, because she did not intentionally and knowingly relinquish her right to a speedy trial under the
Act. We conduct de novo review of a district court‟s interpretation of the Speedy Trial
Ac t. United States v. Rivera Constr. Co. , 863 F.2d 293, 295 n.3 (3d Cir. 1988). We agree with t he District Court that the Applications qualified as motion s under Federal Rule of Criminal Procedure 47 inasmuch as the y specifically requested an extension of
time and cited reasons for such an extension. See Melendez v. United States , 518 U.S. 120, 126 (1996) (observing that “t he t erm „motion‟ generally means „ [a]n application made to a court or judge for [the] purpose of obtaining a rule or order directing so me act to be done in favor of the applicant ‟” ) (quoting Black ‟ s Law Dictionary 1013 (6th5

ed.1990) )

. Because the Applications constituted motions, the District Court appropriately concluded that they tolled the speedy trial clock under 18 U.S.C. § 3161(h)( 1 )(D) and (H) for 30 days

. See Henderson v. United States , 476 U.S

. 321, 327

- 29 (1986) (observing that a pretrial motion allows exclusion for up to 30 days while the district court has the motion under advisement); see also Bloate v. United States , __ U.S

. __, 130 S. Ct. 1345, 1353 (2010) (pointing out that delay from the filing of pretrial motions is automatically excludable under § 3 161(h)(1)(D) through either “ prompt disposition” by the Court or the expiration of the 30 day period that the motion is tak en under advisement )

. Brown argues, however, that the Applications cannot toll the speedy trial clock because she did not knowingly and intentionally relinquish her rights under the Speedy Trial Act. Tolling the speedy trial clock, however, does not requi re a knowing and intelligent waiver by a defendant of her rights under the Speedy Trial Act. The Act contemplates that motions for extensions of time may be filed “at the request of the
defendant or his counsel [.] ” 18 U.S.C. § 3161(h)(7)( A ) (emphasis add ed) . Thus, a motion by counsel for an extension of time toll s the speedy trial clock regardless of whether the defendant knowingly assents. 3 See New York v. Hill , 528 U.S. 110, 115 (2000) (acknowledging that language in the Interstate Agreement on Detain ers Act that allows “the court to grant „good

- cause continuances‟ when either „prisoner or his

3 We disagree with Brown‟s assertion in her reply brief that the Supreme C ourt‟s decision in Zedner v. United States , 547 U.S. 489 (2006), is controlling. In that case, the Supreme Court considered whether the time granted by an “ ends of justice ” continuance under § 3161(h)(8), now codified at § 3161(h)(7) (A) , was excludable. We are concerned with § 3161(h)(1)(D) and (H) , which stops the clock when the motion is filed until either the District Court rules on the motion or for a 30 day period while the motion is under advisement, whichever is earlier.6

counsel ‟ is present

. . . contemplates that scheduling questions may be left to counsel ” (emphasis in original) ) ; see also United States v. Fields , 39 F.3d 439 ( 3d Cir. 1994) (rejecting defendant‟s argument that the continuance requested by counsel , to which the defendant a cquiesced, should not be exclud a ble time for purposes of the Speedy Trial
Act )

. In the absence of a violation of the Speedy Trial Act, we will not set aside the District Court‟s order denying the motion to dismiss. Brown also asserts that her Sixth Amendment right to a speedy trial was violated as a result of the nine month delay between her I ndictment and her trial

. The District Court reject ed this argument in its memorandum opinion, thoroughly analyzing the four prongs of the test set forth in Barker v. Wingo , 407 U.S. 514 (1972). We review de novo the District Court‟s legal conclusion and conduct c l ear error review of the factual findings underpinning that conclusion. United States v. Battis , 589 F. 3d 673, 677 (3d Cir. 2009). F or substantially the reasons given by the District Court, we will affirm its order den y i ng Brown‟s motion to dismiss on the basis of a Sixth Amendment speedy trial violation

. Brown‟s second question for review challenges the District Court‟s exclusion of evidence regarding her employment discrimination claim against her former employer, the Bank of Nova Scotia, which was the victim of Brown‟s wire fraud scheme. At trial, Brown‟s counsel sought to introduce evidence regarding Brown‟s discrimination claim in an attempt to show that the Bank retaliated by initiating th is criminal investigation, which resulted in a 19

- C ount Indictment. The Court refused. It conducted a balancing test under Federal Rule of Evidence 403 and ruled that the evidence was inadmissible. It7

explained that the Bank was not a party to the action and that evidence regarding Brown‟s discrimination claim would create a distraction for the jury by raising issues that were not before them in this criminal proceeding. T he Court advised defense counsel that its ruling did not preclude him from examining any witness regarding credibility issues. We review a trial court‟s exclusion of evidence under R ule 403‟s balancing test
for an “ abuse of discretion, which means we must uphold the District Court unless its ruling was arbitrary or irrational.” United States v. Green , 617 F.3d 233, 251

- 52 (3 d Cir. 2010) (internal quotation marks omitted)

. We conclu de that t he District Court appropriately performed the balancing test and correctly excluded the discrimination claim. 4 Brown also challenges the District Court ‟s refusal to dismiss her I ndictment on the basis that certain errors by the prosecu t ion affect ed the grand jury‟s charging decision. 5 Even if we assume that the prosecution erred during the grand jury proceeding as Brown claims, the petit jury‟s subsequent guilty verdict means not only that there was

4 Brown argues in both he r principal brief and her reply brief that the court de prived her of her right to testify on her own behalf. Brown does not provide a citation to the record to support this assertion. Nor have we located any ruling by the District Court precluding her fr om testifying. Accordingly, because this legal argument lacks any factual basis, we do not address it.

5 Brown also asserts in this section of her brief that the Indictment and the Superceding Indictments were defective. Appel late Rule 28(a)(9) requ ires an a ppellant to present argument with citations to authority and that portion of the record on which she relies

. Because Brown has presented neither legal argument nor citations to the record, we deem any argument Brown may have raised regarding the sufficiency of the I ndictment as waived. Fed. R. App. P. 28(a)(9); Kost , 1 F.3d at 182.8

probable cause to believe that [Brown was] g ui lty as charged, but also that [she is] in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury‟s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt. United States v. Mechanik , 475 U.S. 66, 70 (1986) ; see also Bank of Nova Scotia v. United States , 487 U.S. 250, 263 (1988). Brown‟s fourt h question for review contends that the Court erred by allowing the introduction into evidence of certain original chec ks. Brown submits, without citation to any legal authority or to that portion of the record on which she relies, that the checks should not have been admitted into evidence because they had been altered from their original state

. We review evidentiary ru lings for an abuse of discretion. Green , 617 F.3d at 239. We see n o abuse by the District Court . T he fact that the original check may have
been s ubsequently altered is a matter that affects the weight the jury accords that evidence, not its admissibilit y. For the reasons set forth above, we will affirm the judgment of the District Court.