FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 18-10298 Plaintiff-Appellee, 18-10395 v. D.C. No. 3:17-cr-00139-SI-3 DAVID LONICH, Defendant-Appellant. UNITED STATES OF AMERICA, Nos. 18-10299 Plaintiff-Appellee, 18-10408 v. D.C. No. 3:17-cr-00139-SI-2 BRIAN SCOTT MELLAND, Defendant-Appellant. UNITED STATES OF AMERICA, Nos. 18-10300 Plaintiff-Appellee, 18-10394 v. D.C. No. 3:14-cr-00139-SI-2 DAVID LONICH, Defendant-Appellant. 2 UNITED STATES V. LONICH UNITED STATES OF AMERICA, Nos. 18-10301 Plaintiff-Appellee, 18-10407 v. D.C. No. 3:14-cr-00139-SI-4 BRIAN SCOTT MELLAND, Defendant-Appellant. UNITED STATES OF AMERICA, Nos. 18-10303 Plaintiff-Appellee, 18-10405 v. D.C. No. 3:14-cr-00139-SI-3 SEAN CLARK CUTTING, Defendant-Appellant. UNITED STATES OF AMERICA, Nos. 18-10304 Plaintiff-Appellee, 18-10390 v. D.C. No. 3:17-cr-00139-SI-1 SEAN CLARK CUTTING, Defendant-Appellant. OPINION Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding Argued and Submitted February 10, 2021 San Francisco, California Filed January 10, 2022 UNITED STATES V. LONICH 3 Before: Andrew D. Hurwitz and Daniel A. Bress, Circuit Judges, and Clifton L. Corker, * District Judge. Opinion by Judge Bress SUMMARY ** Criminal The panel affirmed Sean Cutting’s, Brian Melland’s, and David Lonich’s convictions, but vacated their sentences and remanded for resentencing, in a complex case arising from fraudulent schemes concerning bank loans and real estate in Sonoma County, California. The panel held the Sixth Amendment’s Speedy Trial Clause was not violated. Defendants claimed a Speedy Trial Clause violation as to all charges first brought in the October 2016 superseding indictment. Defendants then argued this court should reverse their convictions as to the charges in the original March 2014 indictment because of “prejudicial spillover” from evidence used to prove the charges in the allegedly unconstitutional superseding indictment. The panel had no occasion to consider defendants’ “prejudicial spillover” theory because the panel held that the government’s decision to file new charges in the superseding indictment did not infringe defendants’ Speedy Trial Clause * The Honorable Clifton L. Corker, United States District Judge for the Eastern District of Tennessee, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 UNITED STATES V. LONICH rights. As to the first factor in the balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972), the length of the delay, the parties disagreed on when defendants’ Speedy Trial Clause rights attached for the new charges first brought in the superseding indictment. Defendants argued the original indictment should be used as the start date for the new charges in the superseding indictment. The government contended the date it filed the superseding indictment should be used. The panel did not need to resolve that debate because it concluded that, even assuming the clock started at the time of the original indictment, there was no Speedy Trial Clause violation because the delay caused no relevant prejudice to defendants. Defendants challenged the jury instructions on the money laundering (18 U.S.C. § 1957) and misapplication of bank funds (18 U.S.C. § 656) …
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