U.S. v. Thomas, 94-5749

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation55 F.3d 144
Docket NumberNo. 94-5749,94-5749
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerome THOMAS, Defendant-Appellant.
Decision Date23 May 1995

ARGUED: Robert Clarke VanDervort, Robinson & McElwee, Charleston, WV, for appellant. Michael O. Callaghan, Asst. U.S. Atty., Charleston, WV, for appellee. ON BRIEF: Rebecca A. Betts, U.S. Atty., Charleston, WV, for appellee.

Before ERVIN, Chief Judge, WIDENER, Circuit Judge, and WARD, District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge WIDENER wrote the opinion in which Chief Judge ERVIN and Judge WARD concurred.

OPINION

WIDENER, Circuit Judge:

Jerome Thomas, Jr. appeals from his conviction on three counts of an indictment charging him with conspiracy to possess with intent to distribute and to distribute cocaine base and heroin, 21 U.S.C. Sec. 846, and possession with intent to distribute both cocaine base and heroin, 21 U.S.C. Sec. 841(a)(1); 18 U.S.C. Sec. 2. On appeal, Thomas alleges violations of his constitutional right to a speedy trial and of the Speedy Trial Act, insufficiency of the evidence, and several trial and sentencing errors. We affirm the conviction and Thomas's sentence in all respects.

In the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the facts of this case are as follows. In July 1990, in exchange for Thomas's providing bail and a lawyer in an Ohio felony case, Rodney Merritt began assisting Thomas in drug trafficking in West Virginia. Thomas, Merritt, and three other people drove to West Virginia in two automobiles. They brought with them 18 to 20 ounces of cocaine base and some powdered heroin. Merritt and Thomas packaged the heroin at the apartment of Betty Lou White. Thomas and Merritt gave some heroin to Donald Megginson, and Thomas informed Megginson that in the future Megginson would be dealing with Merritt. Merritt and Thomas sold two ounces of cocaine base to Sam Valentine in two separate transactions, for $1,000 each. Thomas then instructed Merritt to take the money to the bank and exchange it to be rid of any possible marked money.

Thomas became suspicious when Megginson was arrested and released shortly after Thomas and Merritt supplied him with heroin. He left Merritt with the Charleston operation and left town. By telephone, Thomas instructed Merritt to have Megginson give his remaining heroin to Charles Lee Smith for distribution, and Merritt did so.

On learning that Merritt was staying in an expensive hotel, Thomas returned to Charleston. He and others found Merritt and two women in an apartment, attempted to use a handgun and other force to enter the apartment, threatened to kill Merritt, and severed a finger of one of the women in the apartment in a shoving match at a door.

Merritt was arrested and negotiated a plea agreement in exchange for his cooperation in the investigation of Thomas's activities. Merritt informed police of the location of some of Thomas's cocaine and heroin, and 70 grams of cocaine base and an amount of heroin were recovered at that location.

On November 21, 1990, law enforcement personnel arranged a monitored telephone call from Merritt to Smith. Merritt's relation of the conversation is that Smith told Merritt that Thomas wanted his drugs back and Merritt told Smith that he (Merritt) was staying at Cutlip's Hotel. 1 When Thomas did not appear at Cutlip's, Merritt was brought by officers Hart and Crawford to a nearby Motel 6. There, Merritt spotted Thomas and Terryonto McGrier, Thomas's indicted coconspirator, in a car driven by Thomas. After some staring between Merritt and McGrier, McGrier began firing at Merritt and officers Hart and Crawford. The officers returned fire, puncturing one of Thomas's tires. No one was injured. Thomas and McGrier drove away with Hart and Crawford and a marked police car in pursuit. Thomas veered off the road, striking and killing a bicyclist. Several miles after he had killed the bicyclist, Thomas wrecked his car and both occupants were arrested.

On November 27, 1990, while Thomas was being held on several state charges, a federal criminal complaint was filed by an officer with the Metropolitan Drug Enforcement Network, charging Thomas with conspiracy to distribute cocaine base and heroin. An arrest warrant was secured in order to file a detainer with the West Virginia state authorities. Sometime in December 1990, a Deputy U.S. Marshal advised Thomas that a federal complaint had been filed against him and that a detainer was lodged with the West Virginia authorities. Thomas was convicted on several state charges on August 13, 1992, at which point Thomas retained a lawyer, Collias, to investigate the federal charges against him. Thomas testified that he did not tell Collias he wanted a speedy trial. Collias testified that he advised the Assistant United States Attorney that Thomas desired to be charged sooner rather than later, but that he did not demand a speedy trial on behalf of Thomas. In March 1993, Thomas was given a document asking if he wished to have a speedy trial, but he did not express such a preference. In April 1993, in response to a second such document, Thomas stated that he did not wish to have a speedy trial. Thomas was indicted on a single conspiracy count on August 10, 1993, and on January 13, 1994, he demanded a speedy trial. On February 23, 1994, Thomas was first arraigned. On April 21, 1994, Thomas was arraigned on three counts of a superseding indictment, and he was tried and convicted on all three counts.

I. Speedy Trial

Thomas claims that the government violated his rights under the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174, and the Sixth Amendment by failing to indict him for more than two years after the issuance of the criminal complaint, arrest warrant, and federal detainer in November and December 1990. 2 We will address these issues in turn.

A. Speedy Trial Act

18 U.S.C. Sec. 3161(b) requires that, "[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." In United States v. Lee, 818 F.2d 302 (4th Cir.1987), we held on procedural facts materially indistinguishable from those in the instant case that "section 3161(b) requires an arrest as well as a charge--and ... the arrest must be a federal arrest upon a federal charge." 818 F.2d at 305; see also United States v. Iaquinta, 674 F.2d 260, 267 (4th Cir.1982) ("[S]ince there was no federal arrest of the defendants and no taking of them into federal custody until after they were indicted by a federal grand jury, there was no violation of the Speedy Trial Act in this prosecution.").

Thomas argues that under our decision in United States v. Summers, 894 F.2d 90 (4th Cir.1990), the time limit in the Speedy Trial Act is triggered when formal charges have been filed against the defendant. 894 F.2d at 91. But that is not what Summers holds. It holds that the Act is not triggered unless formal charges have been filed and are accompanied by an arrest. In Lee, a federal criminal complaint, a federal arrest warrant, and a federal detainer were all filed between September 17 and 23, 1985, while the defendant was taken into federal custody briefly, for a grand jury appearance, on November 21, 1985, and indicted on December 20, 1985. See 818 F.2d at 303, 304. We held that the Act was not triggered until December 20. See 818 F.2d at 305. Thus, under our holding in Lee, a criminal complaint coupled with an unexecuted arrest warrant and a federal detainer do not constitute formal charges within the meaning of Summers. Summers, indeed, explicitly was made consistent with Lee. 894 F.2d at 91 n. 1. We hold that the Speedy Trial Act was not implicated in this case until Thomas was either taken into federal custody on federal charges or indicted on those charges.

Defendant next argues that because both state and federal prisoners were detained in the Kanawha County Jail, where Thomas was brought on November 21, 1990, and because the federal arrest warrant issued prior to the state arrest warrant (although both issued after the defendant was taken into custody by state officers on the state charges), it is unclear whether Thomas was in federal or state custody in late 1990. However, Thomas cites no authority for the proposition that this scenario is pertinent to a Speedy Trial Act claim, and we have found none. Moreover, it is undisputed that Thomas was arrested by state officers on state charges on November 21, 1990, and that there was no joint or parallel federal investigation of Thomas prior to that time.

In Iaquinta, we held that a joint state-federal investigation leading to an arrest by state officers on state charges with federal officers present, and the consequent taking of the defendants into state custody, was a state arrest and not a federal arrest, see 674 F.2d at 261-62, and thus that the Speedy Trial Act was not implicated until the defendants were taken into federal custody. It is clear in this case, then, that Thomas was arrested and taken into custody by state authorities on state charges, notwithstanding that the federal warrant issued prior to the state warrant. Thus the Speedy Trial Act was not implicated until the issuance of the federal indictment in August 1993. 3

B. Sixth Amendment

To establish a violation of the Sixth Amendment right to a speedy and public trial, a defendant must show first that the Amendment's protections have been triggered by "arrest, indictment, or other official accusation." Doggett v. United States, --- U.S. ----, ----, 112 S.Ct. 2686, 2692, 120 L.Ed.2d 520 (1992). The defendant must then show that on balance, four separate factors weigh in his favor: "whether the...

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