United States v. Gary A. Newman

Gary A. Newman appeals his conviction and sentence, following a jury trial, for one count of setting a fire willfully and without authority in a National Forest in violation of 18 U.S.C. § 1855 . We have jurisdiction over this timely appeal under 28 U.S.C. § 1291 . We affirm Newman’s conviction, but we vacate his sentence and remand for recalculation of the offense level and reconsideration of restitution in light of Newman’s ability to pay.

I

On March 26,1990, Newman was convicted of setting a fire in the Coronado National Forest. This court reversed his conviction on appeal on the ground that the prosecutor’s eliciting of testimony regarding Newman’s post-arrest silence denied Newman a fair trial. See United States v. Newman, 943 F.2d 1155, 1157-58 (9th Cir.1991).

On March 18, 1992, the district court dismissed the indictment without prejudice pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 (e), because Newman was not brought to trial within 70 days after remand. On April 29, 1992, the grand jury reindicted Newman on the same count that was dismissed on March 18, 1992. On June 9, 1992, the district court denied Newman’s motion to dismiss on double jeopardy and speedy trial…