US v. Barnes, 00-1331

• Citation: 251 F.3d 251
• Decision Date: 11 January 2001
• Docket Number: No. 00-1331,00-1331
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. MARLA BARNES, Defendant, Appellant. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 251

251 F.3d 251 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. MARLA BARNES, Defendant, Appellant.

No. 00-1331

United States Court of Appeals For the First Circuit

Heard January 11, 2001

Decided May 30, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

[Copyrighted Material Omitted] Stephen B. Hrones, with whom Hrones & Garrity was on brief, for appellant.

Jennifer Hay Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and Heidi E. Brieger, Assistant United States Attorney, were on brief, for appellee.

Before Selya, Circuit Judge, Coffin and Campbell, Senior Circuit Judges.

SELYA, Circuit Judge.

On October 14, 1999, a jury convicted defendant-appellant Marla Barnes of conspiracy to import cocaine and unlawful use of a communications facility in connection with that conspiracy. See 21 U.S.C. §§ 963, 843(b). The district court imposed a 168-month incarcerative sentence, to be followed by a five-year term of supervised release. The appellant now challenges her conviction on various grounds. Finding her arguments unpersuasive, we affirm the conviction. The appellant also advances three assignments of error that touch upon her sentence. We reject two of these, but accept the third.

I. BACKGROUND

This appeal arises out of a joint trial at which both the appellant and her brother, Reynaldo, were convicted. Although we consolidated their ensuing appeals for briefing and oral argument, we opted to dispose of the appeals separately. This is the second of the two opinions.

Because the facts on which the convictions rest are not central to the issues raised on this appeal, we begin by rehearsing what we previously wrote in connection with Reynaldo's appeal:

[T]he jury supportably could have found that [Reynaldo Barnes], in an effort to expand his ongoing trade in illegal narcotics, told one of his quondam customers that his sister, Marla Barnes, could provide the sizable quantities of cocaine that the customer professed to require. The customer, in reality an undercover agent employed by the federal Drug Enforcement Administration (DEA), accepted the invitation. He thereafter met with the Barnes siblings, and Marla Barnes made preliminary arrangements (or so she said) for a large purchase of cocaine through her connections in Panama.

As an initial step in the process, Marla Barnes sold a one kilogram sample of cocaine to the undercover agent. . . . For a variety of reasons, the larger deal never materialized.

United States v. Reynaldo Barnes, 244 F.3d 172, 175 (1st Cir. 2001).

The grand jury initially indicted both Barnes siblings in what we sometimes shall call "Indictment No. 1." The charges were severed, however, after Reynaldo indicated an intention to plead guilty. Following Marla Barnes's separate trial on Indictment No. 1, she was convicted of conspiracy to import cocaine. On appeal, this court vacated the judgment and ordered the indictment dismissed without prejudice as to Marla Barnes on the ground that the prosecution had dallied impermissibly in bringing her to trial. United States v. Barnes, 159 F.3d 4, 15-18 (1st Cir. 1998) (Barnes I).

The grand jury promptly reindicted the appellant, charging her, in what we sometimes shall call "Indictment No. 2," not only with conspiracy to import cocaine but also with two instances of unlawful use of a communications facility in the course of drug-trafficking activities. At that time, Indictment No. 1 was still pending against Reynaldo Barnes, who had moved to withdraw his guilty plea. On March 19, 1999, the district court (Tauro, J.) allowed the motion to withdraw. The government then moved to dismiss Indictment No. 1 without prejudice and Reynaldo moved to dismiss that indictment with prejudice.

These motions were pending on May 19, 1999, when the grand jury -- one day before the appellant's speedy trial deadline -- superseded Indictment No. 2. The superseding indictment added Reynaldo Barnes as a defendant in this case, charging him with having committed the same offenses that it previously had charged Marla Barnes with committing.¹ Several things then occurred. We mention two. On June 23, 1999, Judge Tauro denied Reynaldo Barnes's motion to dismiss Indictment No. 1 with prejudice and granted the government's cross-motion for dismissal without prejudice. The superseded version of Indictment No. 2 remained zoetic, with both Barnes siblings as defendants. On October 4, 1999, Judge Gorton denied the appellant's motion to dismiss that indictment under the Speedy Trial Act, 18 U.S.C. § 3161 (the STA). The case eventually went to trial and the jury convicted both defendants -- Reynaldo on all three counts and Marla on the conspiracy count and one of the two "communications facility" counts (acquitting her on the remaining count). This appeal followed.

Before us, the appellant advances three principal arguments. First, she classifies the government as a repeat offender, contending that it again violated her rights under the STA. Second, she claims to have detected reversible error in the district court's jury instructions. Third, she lodges a multifaceted claim of sentencing error. We address these asseverations sequentially.

II. ALLEGED SPEEDY TRIAL ACT VIOLATIONS

In invoking the prophylaxis of the STA, the appellant makes three interrelated arguments. The lower court rejected all of them, and so do we.

A. Commencement of the STA Time Line.

Typically, the speedy trial clock begins to run on the later of (a) the filing date of the indictment or information, or (b) the defendant's first appearance before a judicial officer. 18 U.S.C. § 3161(c)(1). In the event of a retrial, however, the STA adds a special twist. It stipulates that, in such an event, "the trial shall commence within seventy days from the date the action occasioning the trial becomes final." Id. § 3161(d)(2).

The appellant contends that this latter provision governs her case, and that, therefore, the relevant date for restarting the speedy trial clock was January 12, 1999 (the date when our mandate issued in Barnes I). Because the second trial did not commence within seventy non-excluded days of that date, the appellant moved to dismiss the new indictment. The district court refused to attach decretory significance to the January 12 date and, accordingly, denied the motion. Affording de novo review, see United States v. Staula, 80 F.3d 596, 600 (1st Cir. 1996), we uphold the district court's ruling.

In arguing that this court's mandate qualifies as "the action occasioning the trial" and thus governs the speedy trial computation, the appellant relies almost exclusively on our decision in United States v. Joost, 133 F.3d 125 (1st Cir. 1998). To be sure, we held there that the date of mandate constituted the starting point for a renewed speedy trial calculation. Id. at 130. But the circumstances were materially different. In Joost, we had overturned the defendant's conviction based on parlous jury instructions, leaving the indictment intact and setting the stage for a retrial on the same indictment. Id. at 127.

The case at hand is cut from markedly different cloth. Our decision in Barnes I resulted in dismissal of the then-pending indictment, thereby precluding a further trial unless the government obtained a new indictment. See United States v. Taylor, 487 U.S. 326, 342 (1988) (explaining that dismissal without prejudice under the STA forces the government to obtain a new indictment if it chooses to reprosecute); United States v. Brown, 770 F.2d 241, 243 (1st Cir. 1985) (similar). Thus, in contrast to Joost, this case does not involve a retrial on the same indictment, but, rather, a first trial on a new indictment. For this reason, the issuance of mandate in connection with the original appeal cannot be viewed as "the action occasioning the trial," and section 3161(c)(1), not section 3161(d)(2), controls.

That ends this aspect of the matter. The grand jury handed up Indictment No. 2 on November 19, 1998. The appellant's initial appearance before the court with respect to that indictment took place on February 11, 1999. The latter date, rather than the date of mandate in Barnes I, marks the occasion for restarting the speedy trial clock.

B. Excludable Time.

Once the clock begins to tick, the STA contemplates several situations in which delays may occur without compromising the seventy-day limit. See 18 U.S.C. § 3161(h)(1)-(9). The appellant challenges the district court's exclusion of certain time, claiming that the court erred in granting a continuance and a concomitant period of excludable delay, based on the "ends of justice." Id. § 3161(h)(8)(A). We review the district court's "ends of justice" determination for abuse of discretion. United States v. Mitchell, 723 F.2d 1040, 1044 (1st Cir. 1983). We discern none in this instance.

The rudiments are clear. When a judge bases a continuance on an explicit finding that the ends of justice outweigh the collective interest in a speedy trial, the resulting period of delay may be excluded under section 3161(h)(8) of the STA. United States v. Santiago-Becerril, 130 F.3d 11, 16 (1st Cir. 1997). Gaining such an exclusion involves a balancing of the interests of the prosecution, the defendant, and the public. Mitchell, 723 F.2d at 1043. To ensure the appropriateness of this balance, the trial court ordinarily must elucidate its reasons for approving such a continuance, United States v. Doran, 882 F.2d 1511, 1515 (10th Cir. 1989); United States v. Pringle, 751 F.2d 419, 432 (1st Cir. 1984), save for cases in which those reasons are readily apparent from the circumstances.

A trial court's discretion to authorize an "ends of justice" continuance is relatively circumscribed, and continuances should not be granted cavalierly. Mitchell, 723 F.2d at 1044. The STA sets out a non-exhaustive list of...