Sunday, January 23, 2011

Case o' The Week: Not Quite Clooney - Liu and Speedy Trial Act

Dashing men and a beautiful woman hatch a clever conspiracy to successfully steal millions from a Las Vegas casino? The Ninth considers a case with facts just like Ocean's Eleven -- -- except for the "successfully" part. United States v. Liu, 2011 WL 182228 (9th Cir. Jan 21, 2011), decision available here.

Players: Hard-fought appeal by D. Nev. AFPDs Dan Maloney and Michael Powell.

Facts: Liu was involved in an international conspiracy involving “supernotes”: counterfeit so good that it works in casino slot and cash-counting machines. Id. at *1. Liu was first indicted for this offense in L.A. Id. He was released and then continued to conspire to pass the notes in Vegas while on pretrial release. Id. He was ultimately indicted in Nevada on charges from the original California indictment, allegations from a previous Nevada indictment, and allegations of new post-release conduct. Id. at *2. Liu’s wife, Min Li Liu, was also added to the superseding Nevada indictment, and the California indictment was dropped. Id. at *1, *2. Liu filed a motion to dismiss the conspiracy charge of the Nevada indictment, “arguing that it was ‘merely an extension’ of the California indictment and that the failure to timely prosecute him on the California indictment violated his rights under the [Speedy Trial Act, or STA].” Id. at *2. The district court found the STA time limits for the California indictment did not apply to the Nevada indictment because the Nevada indictment ‘charged a new and distinct offense from the one charged in the California indictment.’” Id.

Issue(s): “We assume, without deciding, that the two indictments charged Liu with the same overarching conspiracy although the [second superseding indictment] supplemented new facts . . . . Assuming the Liu was charged with the same conspiracy in the two indictments, we must now determine whether the time that lapsed between Liu’s first appearance in court in California and his trial in Nevada violated the STA.” Id. at *3.

Held: “If we apply our holding in [United States v. King, 483 F.3d 969, 972 (9th Cir. 2007)], Liu’s STA clock under the California indictment reset upon the addition of his wife, Min Li, to the [second superseding indictment in Nevada]. There is no evidence in the record before us to suggest that the delay between the filing of the California indictment and the addition of Min Li through the filing of the [second superseding indictment] was unreasonable.” Id. at *4. “Because the delay in the filing of the [second superseding indictment] that named another defendant was reasonable, and because there is no evidence of bad faith on the part of the government, Liu’s [Speedy Trial Act] clock restarted [when the second superseding indictment was filed.] Id. at *4.

Of Note: The general rule is that the addition of a new co-defendant restarts the Speedy Trial Act clock. See id. at *3 (discussing King). There are two caveats to that rule, however: the delay must be “reasonable” and the addition of the codefendant requires the “absence of bad faith on the part of the government.” Id.

Judge Tallman assures us that there is no showing of bad faith from the government’s addition of the wife to the Nevada indictment (and she was admittedly arrested with Liu as he tried to pass counterfeit through a casino machine). Id. at *1. Nonetheless, it is interesting to note that Liu’s wife was fully acquitted in his trial through her successful Rule 29 motion. Id. at *2. The result is that his Liu’s wife was exonerated of the conspiracy, yet her presence in the superseding indictment bought the government a Speedy Trial exclusion as to Liu. Probably not bad-faith charging based on these facts, but the exclusion of time based on the (exonerated) wife’s charges still doesn’t seem fair.

How to Use: Another issue was Liu’s request for a specific unanimity instruction as to the specific overt act committed in furtherance of the conspiracy. Id. at *5. Judge Tallman questions whether the district court “must instruct a jury that it must make a unanimous finding of which over act was committed in furtherance of the conspiracy.” Id. at *5 & n.7. Thankfully, the panel didn’t resolve that issue – so we should still seek a specific offense instruction (or “Echeverry” instruction) for conspiracy overt acts (except for § 841 drug conspiracies, which do not require proof of an overt act. United States v. Cazares, 121 F.3d 1241, 1246 (9th Cir. 1997).

For Further Reading: How good were the supernotes in the case? An undercover agent was supposed to pay Liu in this counterfeit, but used real bills instead– and Liu couldn’t tell the difference. Id. at *1 n.1. For an interesting description of these bogus bills, see “What Are Supernotes?” available here.

"Ocean's Eleven" poster from Image of one-hundred dollar bills from Slate article on Supernotes, available here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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