United States v. O'Connor

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2476

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

A ZUREEIAH O’C ONNOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 672-5—Elaine E. Bucklo, Judge.

A RGUED A PRIL 7, 2010—D ECIDED S EPTEMBER 1, 2011

Before W OOD , E VANSΠ, and SYKES, Circuit Judges.

S YKES, Circuit Judge. Azureeiah O’Connor was con-

victed 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 codefendants

Œ

Circuit Judge Terence T. Evans died on August 10, 2011, and

did not participate in the decision of this case, which is

being resolved by a quorum of the panel under 28 U.S.C. § 46(d).

2 No. 09-2476

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

No. 09-2476 3

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 inter-

vening 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 continu-

ances, we find no error at all; the court made sufficient

findings to satisfy § 3161(h)(7) and Bloate. As to the

4 No. 09-2476

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 instruc-

tions, the sufficiency of the evidence, and the form of

the indictment that went to the jury room. We therefore

affirm O’Connor’s conviction.

I. Background

On July 25, 2005, O’Connor and eight codefendants

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 codefendant 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

codefendants, 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,

No. 09-2476 5

the day O’Connor’s trial began. 1 Much of the delay was

attributable to guilty-plea proceedings involving her

codefendants; most pleaded guilty between 2006 and

early 2008, and the final codefendant pleaded guilty on

March 6, 2008. After these guilty pleas, the govern-

ment 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 chal-

lenged 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

1

In a case involving more than one defendant, “the speedy trial

clock for all defendants typically does not begin to run until the

last of the defendants appears.” United States v. Adams, 625

F.3d 371, 377 (7th Cir. 2010). The last of O’Connor’s codefen-

dants was arraigned on August 22, 2005.

6 No. 09-2476

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 in-

terim. 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 for-

warded 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.

No. 09-2476 7

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 codefendants—

140 months. See United States v. Cross, 273 F. App’x 557

(7th Cir. 2008). This appeal followed.

II. Discussion

A. Speedy Trial Act

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 codefendant 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.

8 No. 09-2476

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).2 The Act outlines several factors the trial

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 rea-

sonable 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 con-

tinuance. 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

2

The Act was amended in 2008, and the ends-of-justice sub-

section was renumbered from § 3161(h)(8) to § 3161(h)(7).

Most of the district court’s minute orders reference subsec-

tion (h)(8), but because this amendment was not substantive,

we refer to the ends-of-justice subsection as (h)(7).

No. 09-2476 9

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 continu-

ance 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 exclu-

sion 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 codefendants

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 pro-

hibits 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. Before

addressing the merits, however, we confront a thresh-

old procedural question—whether the continuances

O’Connor challenges on appeal were properly preserved

for review.

10 No. 09-2476

1. Waiver or Forfeiture?

The Speedy Trial Act provides that if a defendant is

not brought to trial within the 70-day limit, “the informa-

tion or indictment shall be dismissed on motion of the

defendant,” but the “[f]ailure of the defendant to move

for dismissal [of the indictment] prior to trial . . . shall

constitute a waiver of the right to dismissal.” Id.

§ 3162(a)(2). Although the plain-error standard gen-

erally governs appellate review of issues not raised in

the district court, see F ED. R. C RIM. P. 52(b), the Act is

clear that “a defendant’s failure to move to dismiss the

indictment constitutes a waiver—not a forfeiture—of

his rights under the Act,” United States v. Morgan, 384

F.3d 439, 443 (7th Cir. 2004); see also United States v.

Broadnax, 536 F.3d 695, 699 (7th Cir. 2008) (“To eliminate

any doubt, we now squarely hold that § 3162(a)(2)

requires a defendant to move to dismiss on speedy

trial grounds before a trial begins or before a plea is

entered.”).

Here, the waiver question is complicated by the fact

that although O’Connor moved to dismiss prior to

trial, as required by the Act, her motion challenged

only one exclusion of time: the court’s order continuing

the case from September 4, 2008, to January 5,

2009. O’Connor’s motion preserved this continuance for

appellate review, but she challenges several others for

the first time on appeal. We have not previously

addressed whether a motion to dismiss challenging one

Speedy Trial Act exclusion preserves other alleged viola-

tions not specifically raised in the motion. Nor, to our

No. 09-2476 11

knowledge, has any other circuit directly addressed this

question.3

The statutory scheme establishing sanctions for ex-

ceeding the 70-day limit suggests that the answer to this

question is “no.” Subsection 3162(a)(2) provides:

If a defendant is not brought to trial within the time

limit required by section 3161(c) as extended by

section 3161(h), the information or indictment shall

be dismissed on motion of the defendant. The de-

fendant shall have the burden of proof of sup-

porting such motion but the Government shall have

the burden of going forward with the evidence in

connection with any exclusion of time under sub-

paragraph 3161(h)(3). . . . Failure of the defendant to

move for dismissal prior to trial or entry of a plea

of guilty or nolo contendere shall constitute a waiver

of the right to dismissal under this section.

18 U.S.C. § 3162(a)(2). O’Connor seizes on the last sen-

tence of this subsection and argues that all a defendant

must do to preserve appellate review of any exclusion

of time under the Act is file a motion to dismiss. This

argument reads the last sentence of the sanctions pro-

vision in isolation.

3

The Second Circuit has suggested, without analysis, that

exclusions not specifically challenged in a motion to dismiss

are waived. See United States v. Oberoi, 547 F.3d 436, 458 (2d

Cir. 2008), vacated & remanded on other grounds, 130 S. Ct. 1878

(2010).

12 No. 09-2476

The last sentence states that the defendant’s failure to

move to dismiss prior to trial “shall constitute a waiver

of the right to dismissal” under the Act. But § 3162(a)(2)

also provides that “[t]he defendant shall have the

burden of proof of supporting” the motion to dismiss

unless the challenged exclusion is one under § 3161(h)(3),

which permits the court to continue a case based on

the unavailability of the defendant or an essential wit-

ness. On a motion to dismiss challenging an exclu-

sion of time under § 3161(h)(3), the government has

“the burden of going forward with the evidence.” Id.

§ 3161(a)(2). Aside from this sole exception, however,

the Act allocates the burden of proving violations to

the defendant. As such, the Supreme Court has held

that the Speedy Trial Act “assigns the role of spotting

violations of the Act to defendants—for the obvious

reason that they have the greatest incentive to perform

this task.” Zedner, 547 U.S. at 502-03.

If, as the Court held in Zedner, the defendant bears

the burden of “spotting” Speedy Trial Act violations, it

follows that any specific violation not raised in a motion

to dismiss is waived. If filing a motion to dismiss

were enough to preserve all violations of the Act—

whether identified in the motion or not—then the

district court or the government, rather than the

defendant, would effectively bear the burden of “spotting

violations,” contrary to the Court’s instruction in Zedner.

This would upset the statutory scheme. By placing the

burden of identifying violations on the defendant, the

Act links the right to dismissal with the duty to draw

the court’s attention to erroneous exclusions of time.

No. 09-2476 13

Thus, the text of § 3162(a)(2)—read as a whole and in

light of the Court’s language in Zedner—strongly

suggests that violations not specifically identified in

the defendant’s motion to dismiss are waived, not for-

feited.

Having said that, we may reserve ultimate judgment

on the waiver-or-forfeiture question for another day;

O’Connor’s argument fails either way. Even if we

assume that her unpreserved challenges were merely

forfeited, not waived, none of the claimed violations

amounts to plain error. We take them up in chronological

order.

2. The Continuances

The August 22, 2005 and September 2, 2005 orders

O’Connor first challenges two continuances granted

early on in the case, on August 22 and September 2, 2005.

On August 22 a magistrate judge continued the case to

September 2 for preparation of pretrial motions and

excluded this delay from the speedy-trial clock. This

exclusion was proper under circuit precedent then in

effect. In Tibboel, 753 F.2d at 610, we held that delays

resulting from the preparation of pretrial motions

fall within the ambit of § 3161(h)(1)(D), the provision

authorizing the automatic exclusion of “delay resulting

from any pretrial motion.” But the Supreme Court held

otherwise in Bloate. The pretrial-motion provision specifi-

cally permits the court to exclude “delay resulting

from any pretrial motion, from the filing of the motion

14 No. 09-2476

through the conclusion of the hearing on, or other prompt

disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D)

(emphasis added). Bloate held that delays resulting

from the preparation of pretrial motions are not covered

by this provision, which automatically excludes delays

from filing through disposition of motions. 130 S. Ct.

at 1353. The Court held that delays attributable to the

preparation of pretrial motions may be excluded under

the ends-of-justice provision, but continuances granted

for this purpose must be supported by case-specific

findings that the benefits outweigh the costs, as required

by § 3161(h)(7). Id. at 1352; see also Zedner, 547 U.S. at 506-07

(To justify an ends-of-justice continuance, the court

must enter the statutorily required findings on the

record orally or in writing.).

Here, the magistrate judge did not make the findings

Bloate requires prior to entering the August 22 exclusion;

the exclusion of the 11 days from August 22 to Septem-

ber 2 was therefore error. Assuming this error was

plain, however, reversal is unwarranted. Adding 11 days

to the speedy-trial clock puts the total at 53 days, still

well short of the 70-day limit.

Similarly, on September 2 the district court held a

status conference with counsel and continued the case

to October 28. In a follow-up minute entry, the court

noted that this time was excluded for “motions, trial

preparations and plea negotiations,” and cited the ends-of-

justice provision. The minute entry by itself is brief and

does not contain the required statutory findings, but

§ 3161(h)(7) permits the court to make an oral record of

No. 09-2476 15

the reasons for the exclusion, so we may look to the

transcript of the status conference. Zedner, 547 U.S.

at 506-07; Napadow, 596 F.3d at 405-06.

There we find a sufficient explanation of the court’s

reasons for granting this continuance. At the September 2

hearing, one of the defense attorneys noted that he “re-

ceived four very big boxes of discovery” and needed “a

lot more time than the [c]ourt had allowed for

discovery motions[,] . . . maybe another 60 days just to

get through discovery to figure out what motions [to

file].” Another defense lawyer noted that “[t]he Bates

numbers [in the discovery documents] run higher than

10,000.” The sheer volume of the discovery reflects the

complexity of the case, which involved more than

30 separate fraudulent transactions. At the conclusion of

the hearing, based on this colloquy with counsel, the

judge granted a continuance to October 28 and excluded

this time to allow for “motions, preparation, and any

plea negotiations.” The discussion among counsel and

the court reflects the judge’s conclusion that this delay

was necessary to give the defense lawyers time to under-

stand the government’s case, analyze the evidence,

and decide what motions might be appropriate and

whether their clients’ best course was to plead guilty or

go to trial. It is precisely for cases like this one that

the ends-of-justice provision exists; it offers district

judges the flexibility needed to effectively manage

complex litigation. See Zedner, 547 U.S. at 497. Together,

the transcript and the minute order support this ends-of-

justice exclusion.

16 No. 09-2476

The January 27, 2006 and May 12, 2006 orders

O’Connor next challenges an order the district court

entered on January 27, 2006, continuing the trial date

from May 15, 2006, to July 17, 2006, citing “trial prepara-

tion” as the reason and invoking the ends-of-justice

provision. This continuance must be read in light of

another granted earlier in the case and one that came

later. At the court’s October 28, 2005 status conference,

the defense attorneys told the court they would need

several more months to review the voluminous dis-

covery in the case and would not be ready for trial until

the spring. With the consent of counsel, the court set a

trial date of May 15, 2006, and entered an ends-of-

justice exclusion of all time through that date for “con-

tinuity of counsel, motions and trial preparations.” On

January 27, 2006, the court reset the May 15 trial date

to July 17, citing trial-preparation needs.

Later, on May 12, 2006, the court adjourned the trial

again, this time to January 22, 2007. O’Connor challenges

this order as well. Five of the defense attorneys had

notified the court that they would be unavailable to try

the case on July 17, so the court convened a status con-

ference on May 12 to take up their request for an adjourn-

ment. At this conference counsel advised the court that

the earliest they would all be available for trial was

January 2007. The court expressed concern about the

length of the delay but acquiesced and rescheduled the

trial for January 22, 2007. The court entered an ends-of-

justice exclusion through that date, again citing “trial

preparation” and “continuity of counsel” as the reasons

for the continuance.

No. 09-2476 17

Taking this context into account, we think the court

made an adequate record of the reasons for the January 27

and May 12 continuances as required by § 3161(h)(7)(A).

The Speedy Trial Act simply requires the court “to put

on the record its reasons for finding the continuance

warranted[;] . . . it does not require that the court recite

the statutory factors or make findings as to each of them

on the record.” United States v. Adams, 625 F.3d 371, 380

(7th Cir. 2010). We have held that “the Speedy Trial Act

does not require the court ‘to cite . . . sections [of the

Act] or to track the statutory language in a lengthy legal

opinion,’ but rather to make findings ‘sufficiently

specific to justify a continuance[] and comport with the

purposes of the Act.’ ” Napadow, 596 F.3d at 405 (quoting

United States v. Jean, 25 F.3d 588, 594 (7th Cir. 1994) (alter-

ations in Napadow)). It’s clear from the transcript of the

court’s conferences with counsel that these continuances

were based on the complexity of the case, the magnitude

of the discovery, and the attorneys’ schedules. Con-

sidered together, the docket entries and the transcript

adequately reflect the court’s reasons for allowing these

two ends-of-justice continuances.

The March 24, 2008 and May 1, 2008 orders

Between 2006 and 2008, many of O’Connor’s codefen-

dants pleaded guilty, resulting in additional delays

that O’Connor concedes were properly excluded under

the Act. The last of her codefendants pleaded guilty on

March 8, 2008, and O’Connor’s trial was scheduled to

begin on March 24, 2008. On that date a dispute arose

18 No. 09-2476

over the authentication of mortgage records the govern-

ment planned to submit as exhibits. Two weeks earlier,

the government filed a motion to admit the records

under Rule 902(11) of the Federal Rules of Evidence

and tendered the required declarations from the records

custodians attesting to their authenticity. Just before

jury selection was set to begin, O’Connor’s counsel ob-

jected, raising a challenge to the sufficiency of the declara-

tions (though not the authenticity of the records). The

parties jointly requested a continuance to May 19, 2008,

to resolve the dispute so that the mortgage records could

be admitted without calling records custodians from

22 lending institutions located all over the country. The

court granted this request, continued the case to May 19,

and entered another ends-of-justice exclusion for “trial

preparation.” We find no error (much less plain error)

in this order. The on-the-record discussion among

counsel and the court, together with the court’s docket

entry, are sufficient to satisfy the requirements of the

statute.

On May 1, 2008, the judge notified the parties of a

conflict in her schedule that required the court to

transfer the case to another judge or reset the May 19 trial.

O’Connor’s counsel chose the latter option and agreed

that the delay could be excluded under the Act. The

judge proposed July 1, 2008, as the new trial

date. O’Connor’s counsel instead suggested a date in

September based on other commitments during the

summer. The judge reluctantly acquiesced and

rescheduled trial for September 22, 2008, entering

another ends-of-justice exclusion citing the need for

No. 09-2476 19

“continuity of counsel.” O’Connor’s attorney waived

objection to this delay.

O’Connor now argues that the exclusion of time from

May 19 to September 22 was improper because the Act

does not permit the court to exclude delay resulting

from “general congestion of the court’s calendar.”

§ 3161(h)(7)(C). The government counters that only

42 days of this delay—from May 19 to July 1—were

improperly excluded based on the court’s calendar con-

gestion. The court had proposed to start trial on July 1

but counsel was unavailable. Accordingly, the delay

from July 1 to September 22 was solely attributable to

calendar conflicts of counsel, not the court. Indeed, the

judge specifically noted the need for continuity of

counsel when she set the September 22 date. We agree

with the government that only 42 days were im-

properly excluded from the speedy-trial clock. The rest

of the delay was properly excluded and adequately

supported by the court’s conclusion that the additional

time was necessary to maintain continuity of counsel.

The September 4, 2008 order

We come at last to the only continuance O’Connor

preserved for plenary review by specifically citing it as

the basis for her motion to dismiss. At a pretrial hearing

on September 4, 2008, the government informed the

court that Dana Powell, one of its witnesses, would be

unable to testify at the September 22 trial. Powell had

recently delivered a baby who was very ill and needed

to be nursed as many as 13 times a day. Powell was

20 No. 09-2476

under doctor’s orders to remain at home with the baby

and not leave the house except to go to the hospital.

The prosecutor informed the court that Powell was one

of the straw buyers and was an essential witness for

the government, but her medical emergency obviously

prevented her from testifying at trial. The court and

counsel then discussed when Powell might be available

to testify; the court proposed putting the case on the

“backup” calendar so that it could be tried before the

end of the year. Both the prosecutor and O’Connor’s

counsel objected to placing the case on the court’s

“backup” calendar because of the difficulty in assembling

witnesses on short notice and the uncertainty of

Powell’s availability. The judge agreed and continued

the trial to January 5, 2009, but instead of docketing

the exclusion under § 3161(h)(3), the unavailable essential-

witness provision, the court entered a minute order

again excluding this time under the ends-of-justice provi-

sion “for trial preparation.”

Less than a week before trial, O’Connor moved to

dismiss, arguing that the September 4 exclusion of time

violated the Speedy Trial Act. In response the govern-

ment submitted a supplemental affidavit offering

further evidence that Powell was an essential and unavail-

able witness. On January 5, 2009, before starting jury

selection, the court heard argument and ruled on the

motion to dismiss. The judge specifically noted that

when the continuance was granted, Powell “had

recently had a baby” and that “the baby’s health did not

allow her to leave.” The judge concluded that Powell

was a “very important” witness; this conclusion

No. 09-2476 21

was based on the government’s representations at the

September 4 pretrial conference as well as the supple-

mental affidavit offered in response to the motion to

dismiss. The judge also noted that at the September 4

hearing,

the government represented and we talked about at

that hearing why this witness was very important,

and the government explained the importance and

gave a good explanation, which is supported by the

record, as to why this witness was unavailable, that

she had recently had a baby, the baby’s health did

not allow her to leave; and, therefore, that was why

I granted the continuance.

Accordingly, the judge clarified that “it was pretty clear . . .

from the [September 4] hearing that the reason for con-

tinuing the trial was that a witness was both essential

and unavailable.” The court then entered a specific

finding that Powell “was both [an] essential and unavail-

able” witness and for this reason the delay was “properly

excludable” under the unavailable-witness provision of

the Act. On that basis the court denied the motion to

dismiss.

O’Connor now argues that the court could not enter

an ends-of-justice continuance on September 4 and later

change course, excluding the time under the unavailable-

witness provision when denying the motion to dismiss

on January 5. She maintains that the January 5 ruling

was an improper retroactive continuance, relying on

United States v. Janik, 723 F.2d 537, 544-45 (7th Cir. 1983),

which suggested in dicta that a judge cannot, in ruling

22 No. 09-2476

on a Speedy Trial Act motion to dismiss, retroactively

justify a continuance based on reasons not considered

at the time the continuance was granted. This argu-

ment misconstrues the substance of the September 4

hearing. Although the minute entry states that the con-

tinuance was granted “in the interest of justice for trial

preparation,” the on-the-record colloquy between the

court and counsel makes it unmistakably clear that the

continuance was granted because Powell was both an

essential witness and unavailable because of her

newborn’s serious illness. Despite the minute entry,

which appears to be a technical error, from the very

beginning this continuance was based on § 3161(h)(3),

the unavailable essential-witness provision, and not

§ 3161(h)(7), the ends-of-justice provision.

The Supreme Court has held that the findings required

for an ends-of-justice continuance under § 3161(h)(7)

need not be entered into the record contemporaneously

with the continuance, but must “be made, if only in the

judge’s mind, before granting the continuance,” and may

be recorded later provided they are “put on the record

by the time a district court rules on a defendant’s

motion to dismiss under § 3162(a)(2).” Zedner, 547 U.S. at

506-07; see also Napadow, 596 F.3d at 405 (“[T]he district

court need not explain its findings contemporaneously

with its decision to exclude time.”); United States v.

Bryant, 523 F.3d 349, 361 (D.C. Cir. 2008) (“Zedner

permits trial judges to put their findings on record at the

time they rule on a [Speedy Trial Act] motion to dismiss,

rather than at the time they grant the continuance . . . .”);

United States v. Larson, 417 F.3d 741, 746 (7th Cir. 2005)

No. 09-2476 23

(“Though the district court is not required to make

Speedy Trial Act findings contemporaneously with a

continuance order, the better practice is for the court

to make the required findings at least prior to a defen-

dant’s motion to dismiss the indictment for a violation

of the Act.” (internal citation omitted)).

In contrast to ends-of-justice continuances, however,

periods of delay excludable under § 3161(h)(1)-(6) may be

automatically excluded if the specified conditions are

present; no ends-of-justice balancing by the court is

necessary because the balance has already been struck

by Congress. United States v. Tinklenberg, 131 S. Ct. 2007,

2013-15 (2011); Bloate, 130 S. Ct. at 1351-52. Here, there is

no room for doubt that the September 4 adjournment

was necessitated by Powell’s unavailability to testify at

the September 22 trial based on her baby’s illness.

Because she was an essential witness, this time was

automatically excludable from the speedy-trial clock

under § 3161(h)(3); no ends-of-justice findings were

necessary.4 That the judge clarified the basis for the

September 4 continuance when she later ruled on the

4

The court’s findings that Dana Powell was both essential

and unavailable were not clearly erroneous. The record

supports the unavailability finding, see United States v. Koller,

956 F.2d 1408, 1413 (7th Cir. 1992), and the court’s finding

that Powell was an essential witness was also correct.

O’Connor now argues that Powell’s testimony was merely

cumulative, but a witness may still be considered essential

even if her testimony is not strictly necessary to obtain a

conviction. Cf. United States v. Tedesco, 726 F.2d 1216, 1222

(7th Cir. 1984) (making this point with an accomplice).

24 No. 09-2476

motion to dismiss does not change matters. The court

relied on the same rationale at both hearings, which

distinguishes this case from Janik. Even if we were to

treat this as an ends-of-justice continuance (which it

was not), no Speedy Trial Act violation occurred. Under

Zedner, as long as the court’s reasons for granting the

continuance are placed on the record by the time the

court rules on a motion to dismiss, the procedural re-

quirements of the Act are satisfied.

Of course, when granting an ends-of-justice continu-

ance, the “best practice” is for the court “to put its

findings on the record at or near the time when it grants

the continuance.” Zedner, 547 U.S. at 507 n.7. The court’s

statement of reasons need not be lengthy and need not

“track the statutory language,” but it should be enough

to “ensure[] the district court considers the relevant

factors and provides this court with an adequate record

to review.” Napadow, 596 F.3d at 405 (quotation marks

omitted). Here, however, the continuance was based on

an unavailable essential witness, which requires no ends-

of-justice reasoning. O’Connor’s motion to dismiss

was properly denied.

B. Sixth Amendment Speedy-Trial Claim

The Sixth Amendment guarantees an accused “the

right to a speedy and public trial.” U.S. C ONST. amend. VI.

Apart from her Speedy Trial Act argument, O’Connor

contends that the 1,229-day pretrial delay violated her

Sixth Amendment right to a speedy trial. Because

O’Connor did not make this argument below, our review

No. 09-2476 25

is for plain error. United States v. Gearhart, 576 F.3d 459,

462-63 (7th Cir. 2009).

Our rejection of O’Connor’s argument under the

Speedy Trial Act does not resolve her constitutional

claim; while related, the constitutional and statutory

rights are distinct. See id. at 462 (“The constitutional right

to a speedy trial is both narrower and broader than the

corresponding statutory right.”). Thus, “a violation of one

[right] may be found without a violation of the other.”

United States v. White, 443 F.3d 582, 588 (7th Cir. 2006).

A Sixth Amendment speedy-trial claim turns on the

following general factors: “[W]hether [the] delay before

trial was uncommonly long, whether the government

or the criminal defendant is more to blame for that

delay, whether, in due course, the defendant asserted

his right to a speedy trial, and whether he suffered preju-

dice as the delay’s result.” Doggett v. United States, 505

U.S. 647, 651 (1992).

Delays of more than one year are considered presump-

tively prejudicial, White, 443 F.3d at 589-90, and this one

obviously qualifies. However, O’Connor bears primary

responsibility for many of the pretrial delays and did

not suffer actual prejudice. She changed counsel twice

during the course of the pretrial proceedings, moved

for several continuances, consented to others, and did

not assert her speedy-trial rights until the end of

December 2008, when she moved to dismiss on Speedy

Trial Act grounds several years after her indictment and

a week before her trial. Moreover, O’Connor did not

seek to sever her case from the other defendants

to mitigate delays resulting from the joint prosecu-

26 No. 09-2476

tion. Finally, although O’Connor draws our attention

to certain government witnesses who had difficulty re-

membering some facts during cross-examination, these

memory lapses were not prejudicial. If anything, they

were helpful to O’Connor; she could have highlighted

the gaps in their memories as a reason to discount

their testimony. The pretrial delay in this case, though

lengthy, did not violate the Sixth Amendment.

C. Jury Instructions

O’Connor next challenges the court’s use of a joint-

venture instruction. She claims that the instruction con-

structively amended the indictment by implicitly in-

cluding an uncharged conspiracy count. She also

maintains that the instruction had the effect of easing

the government’s burden of proof. We need not address

the merits of either argument. O’Connor waived any

challenge to the joint-venture instruction.

A defendant who specifically approves an instruction

in the district court waives the right to challenge it on

appeal. United States v. Griffin, 493 F.3d 856, 863-64 (7th

Cir. 2007) (“Counsel’s affirmative statement that he had

no objection to the proposed instruction constitutes

waiver of the ability to raise this claim on appeal.”). Here,

O’Connor’s counsel stated on the record that he had

no objection to the joint-venture instruction. O’Connor

attempts to avoid this waiver by casting her appellate

argument as a challenge to the jury instructions as a

whole rather than a challenge to the joint-venture in-

struction alone. This argument is nothing more than a

rhetorical sleight of hand. O’Connor’s claim of instruc-

No. 09-2476 27

tional error centers on the joint-venture instruction,

which she contends was flawed, given out of context,

and corrupted the instructions in their entirety. She

does not challenge the instructions as a whole but

focuses on the joint-venture instruction in particular and

its effect on the other instructions. Because O’Connor

consented to this instruction, she cannot challenge it

on appeal.

D. Sufficiency of the Evidence

O’Connor also maintains that the evidence was insuffi-

cient to support her wire-fraud conviction. Sufficiency-of-

the-evidence challenges carry a very steep standard of

review; we view the evidence in the light most favorable

to the government and reverse only if no rational juror

would have found the defendant guilty beyond a rea-

sonable doubt. United States v. Roberts, 534 F.3d 560,

569 (7th Cir. 2008). To convict O’Connor of wire fraud

under 18 U.S.C. § 1343, the government had to prove

that she: (1) participated in a scheme to defraud;

(2) had the intent to defraud; and (3) used the wires in

furtherance of the fraudulent scheme. Id.

O’Connor first claims that because she believed that

Cross would make the mortgage payments and never

meant to cheat the banks out of money, she lacked intent

to defraud. This argument misunderstands the intent

element of wire fraud. To win a conviction under § 1343,

the government only needed to prove “a willful act by the

defendant with the specific intent to deceive or cheat,

usually for the purpose of getting financial gain for

28 No. 09-2476

one’s self or causing financial loss to another.” Id. at 571

(emphasis added) (quotation marks omitted). The gov-

ernment did not need to prove that O’Connor intended

to harm the banks or cause them to lose money. United

States v. Leahy, 464 F.3d 773, 786-87 (7th Cir. 2006).

The government’s evidence established (or so a jury

reasonably could believe) that in exchange for $20,000

in side payments from Cross, O’Connor knowingly pro-

cessed seven fraudulent loan packages and forwarded

them on to lenders with the intent that they would

provide mortgage funding. This is sufficient to estab-

lish intent to defraud.

O’Connor also claims that she was merely an

unwitting pawn who lacked substantial education or

training and was tricked into participating in Cross’s

scheme. She points out that she told the FBI that she

thought Cross’s deals looked clean. She emphasizes as

well that she did not graduate from high school and had

limited training as a loan officer. She cites United States

v. Bailey, 859 F.2d 1265, 1273-75 (7th Cir. 1988), which

held that proof of knowing participation in a fraudulent

scheme requires more than knowledge of “shadowy

dealings,” superficial participation, or the exchange of

money. Unlike in Bailey, the evidence establishes that

O’Connor was heavily involved in the fraudulent

scheme. She knowingly processed and sent to lenders

for approval multiple fraudulent mortgage-loan applica-

tions falsely representing that persons other than Cross

were purchasing the subject properties. She also met

with some of the straw buyers and falsely reported on

several loan forms that she had personally interviewed

the applicants when she had not. Most damning is

No. 09-2476 29

O’Connor’s acceptance of nearly $20,000 in kickbacks

from Cross, a fact she admitted at trial. This quid pro

quo—trading her sham approvals of multiple fraudulent

loan applications for thousands of dollars in under-the-

table payments—is convincing evidence of fraudulent

intent.

To be sure, Bailey does suggest that proving intent to

defraud might be more difficult when the defendant is

an unsophisticated low-level participant rather than,

for example, a highly educated corporate executive. See

id. at 1275. But we have cautioned that Bailey “do[es] not

supply an unsophisticated defendant with an automatic

defense to a fraud . . . indictment.” United States v.

Johnson, 927 F.2d 999, 1005 (7th Cir. 1991). This principle

is particularly applicable here. The government offered

ample evidence of O’Connor’s guilt. Accepting her ex-

culpatory theory would require us to read the evidence

in her favor rather than in favor of the jury’s verdict.

The evidence was more than sufficient to convict.

E. Prejudicial Surplusage in the Indictment

Finally, O’Connor challenges the district court’s deci-

sion not to redact certain portions of the indictment

before sending it to the jury room. At the close of evi-

dence, the parties disagreed over the form of the indict-

ment the court would provide to the jury. The caption of

the indictment identified O’Connor’s codefendants, and

she asked the court to redact their names as prejudicial

surplusage. The government objected to removing the

codefendants’ names because the jury might speculate

30 No. 09-2476

about why the key participants in the scheme—whose

involvement had been the subject of much of the trial

testimony—were not included as defendants in the cap-

tion. The judge denied O’Connor’s request and let the

unredacted form of the indictment go to the jury. The

judge did, however, issue a cautionary instruction

telling the jurors not to “speculate [about] why any other

person whose names you may have heard during the

trial or who was named in the indictment in this case as

a defendant is not currently on trial before you.”

The Federal Rules of Criminal Procedure provide that

“[u]pon the defendant’s motion, the court may strike

surplusage from the indictment or information.” FED. R.

C RIM . P. 7(d). The court’s decision on a Rule 7(d) motion

turns on considerations of relevance and prejudice.

United States v. Peters, 435 F.3d 746, 753 (7th Cir. 2006)

(“Surplusage should not be stricken unless it is clear

that the allegations are not relevant to the charge and

are inflammatory and prejudicial.” (quotation marks

omitted)). We review the denial of a Rule 7(d) motion

to strike for abuse of discretion. United States v. Terrigno,

838 F.2d 371, 373 (9th Cir. 1988).

We find no abuse of discretion here. The identity of

the codefendants was relevant to the charge against

O’Connor. Their names had been repeated often during

the trial, and this information was important to provide

the jury with a more complete picture of the scheme.

The link between O’Connor and her codefendants was

central to the case, so leaving their names in the indict-

ment’s caption caused no prejudice. Finally, the court

issued a cautionary instruction warning the jury that

No. 09-2476 31

the indictment was not evidence and that O’Connor’s

association with her codefendants was not sufficient by

itself to prove her knowing participation in the scheme.

See United States v. Marshall, 985 F.2d 901, 906 (7th Cir.

1993) (cautionary instructions can mitigate the risk of

prejudice).

O’Connor raises two additional Rule 7(d) arguments

for the first time on appeal, both unavailing. She claims

that a paragraph in the indictment referring to the total

loss caused by the fraudulent scheme was prejudicial

surplusage. We disagree. The amount of the fraud was

relevant and had been placed in evidence during the

trial. The evidence of the loss amount—about $6 million—

approximated the $6.2 million loss alleged in the indict-

ment. O’Connor’s final argument is that some parts of

the indictment described facts that pertained only to the

involvement of others in the scheme but erroneously

and prejudicially implied her participation. But the wire-

fraud count against her incorporated by reference the

entire fraudulent scheme. Accordingly, the parts of the

indictment she claims were irrelevant were actually

included in the charge against her. The form of the in-

dictment that went to the jury did not contain

irrelevant and prejudicial surplusage.

A FFIRMED.

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