FILED

JAN 15 2010

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-30275

Plaintiff - Appellee, D.C. No. CR-07-67-DWM

* v. MEMORANDUM

STEVEN RAY RITCHIE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Submitted October 13, 2009** Seattle, Washington

Before: CUDAHY, *** Senior Circuit Judge, and RAWLINSON and CALLAHAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard D. Cudahy, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation. 1 Appellant Steven Ray Ritchie (Ritchie) appeals the sentence imposed

following his guilty plea to being a felon in possession of firearm in violation of 18

U.S.C. y 922(g).

1. The district court did not abuse its discretion by dismissing the initial

indictment without prejudice after finding a Speedy Trial Act violation. See United

States v. Taylor, 487 U.S. 326, 335-36 (1988). The court weighed relevant factors,

and the record supports the district court's holding of dismissal without prejudice.

See, e.g., 18 U.S.C. y 3162(a)(2); United States v. Medina, 524 F.3d 974, 982 (9th

Cir. 2008) (applying the y 3162(a)(2) factors). The district court correctly held that

18 U.S.C. y 4247(b) does not affect decisions under the Speedy Trial Act. See, e.g.,

United States v. Daychild, 357 F.3d 1082, 1094 (9th Cir. 2004). Custodial

institutions charged with complying with the time limitations in 18 USC y 4247(b),

however, are urged to comply with its provisions. While some of the delay here

was attributable to Ritchie (and does not bear on the Speedy Trial Act analysis), to

the extent that delays also occurred because of the high volume of cases addressed

by BOP and other administrative bacµlog, it is hoped that the BOP will be able to

2 streamline its procedures to reduce delay in conducting future competency evaluations.

2. The district court did not abuse its discretion in denying Ritchie's motion for

a mistrial. Although the photograph should not have been shown to the jury, the

district court provided a timely curative instruction and polled the jury to

determine whether the photograph factored into their deliberations. See, e.g., Zafiro

v. United States, 506 U.S. 534, 540 (1993) (explaining that juries are presumed to

follow curative instructions); B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1105

(9th Cir. 2002) (explaining that a timely instruction usually cures the prejudicial

impact of evidence unless it is clearly inadequate).

3. The district court properly denied Ritchie's motion to dismiss in light of District

of Columbia v. Heller, 128 S. Ct. 2783 (2008). As the Supreme Court emphasized

in Heller, its ruling did not change the longstanding prohibitions on possession of

firearms by felons. See id. at 2816-17.

AFFIRMED.

3

FILED

United States v. Ritchie, No. 08-30725 JAN 15 2010 CALLAHAN, CIRCUIT JUDGE, concurring: MOLLY C. DWYER, CLERK

U.S . CO UR T OF AP PE A LS

I concur in the majority's result, affirming Ritchie's conviction and

sentence. In my view, it is unnecessary for us to comment in this Speedy Trial Act

case on the obligations of custodial institutions charged with complying with 18

U.S.C. y 4247(b)'s time limitations, for two reasons.

First, y 4247(b) does not affect decisions under the Speedy Trial Act. See

United States v. Daychild, 357 F.3d 1082, 1094 (9th Cir. 2004). Second, it is true

that y 4247(b) prescribes that a defendant shall be held for not more than forty-five

days in determining his mental competency to stand trial. See also 18 U.S.C. y

4241. Ritchie arrived at the evaluation center on May 4, 2006, and the Bureau of

Prisons ('BOP') issued its Forensic Evaluation report on Ritchie on September 16,

2006.1 However, the BOP report is clear that Ritchie malingered throughout the

testing period, necessitating additional testing and leading evaluators to conclude:

The possibility of malingering (i.e., feigning the presence of psychological symptoms, motivated by external incentives, such as evading criminal prosecution) is strongly suspected. Based on the available evidence, it is believed that Mr. Ritchie's deficits appear to

1 The BOP report indicated that submission of the report was further delayed to allow defense counsel and the Social Security Administration Office to locate and submit psychological treatment records; the records were never submitted. The BOP also acµnowledged that it sought an extension of time due to the high volume of cases at the evaluation facility.

Page 1 of 2 be purposeful in nature and do not seem to reflect the presence of a genuine mental illness or severe cognitive disturbance.

The district court concluded that 'the government did not cause the speedy trial

violation' and 'Defendant caused much of the delay by his failure to cooperate

with the psychological examiners during the competency evaluation period.'

Given Ritchie's significant role in the delay, it is unnecessary for the court to

comment in this case on the statutory obligations of custodial institutions. In my

view, there is no evidence that the custodial institution was unaware of or

disregarded its statutory obligations. This dicta should not be cited to future panels

as authority construing 18 U.S.C. y 4247(b).

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