U.S. v. Dowdell
| Citation | 595 F.3d 50 |
| Decision Date | 12 February 2010 |
| Docket Number | No. 08-1855.,08-1855. |
| Parties | UNITED STATES of America, Appellee, v. Darryl DOWDELL, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Randall E. Kromm, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney, was on brief, for appellee.
Before TORRUELLA, SELYA and HOWARD, Circuit Judges.
Following a three-day jury trial, Defendant Darryl Dowdell was convicted of distribution of cocaine base and sentenced as a career offender to 198 months' imprisonment. Dowdell appeals the conviction, alleging three defects: that the delay between his indictment by state authorities and his ultimate trial in federal court violated his Sixth Amendment speedy trial rights as well as the Interstate Agreement on Detainers; that the district court's amendment of the indictment from "cocaine" to "cocaine base" violated the presentment clause of the Fifth Amendment; and that the trial court abused its discretion on various evidentiary rulings. He also challenges the sentence imposed, arguing that the government's recommended sentence of 262 months violated a promise not to seek a term of imprisonment longer than 20 years. For the reasons that follow, we affirm both the conviction and the sentence.
While the facts surrounding the underlying offense are not complicated, the pre-trial procedural history of this case presents a maze of overlapping federal and state activity, a flurry of continuances, and a revolving door of withdrawn and newly appointed defense counsel.
The following facts were elicited at Dowdell's federal trial.
In the summer of 2001, several Massachusetts authorities launched a coordinated effort with the federal Drug Enforcement Administration (DEA) to investigate drug trafficking in the area of a housing project in Roxbury. The investigation involved a task force of undercover officers who made controlled purchases of cocaine and crack cocaine from dealers operating in the project. One of these officers was Boston Housing Authority investigator Joao Monteiro. Posing as a construction worker, Monteiro drove an unmarked car with a concealed audio transmitter and a video camera that focused on the automobile's interior passenger compartment.
On July 6, 2001, Monteiro observed Dowdell standing on the sidewalk with a man named Robert White, whom Monteiro recognized from previous encounters. Dowdell was wearing dark pants and a black shirt. He and White were counting cash. Monteiro signaled to White that he wished to purchase crack cocaine, and White went to talk to Dowdell. White then approached Monteiro's car and got into the passenger seat. White told Monteiro that Dowdell, at this point identified only as "the dark-skinned brother" in the dark shirt, was a trustworthy dealer. After purchasing 1.1 grams of crack cocaine for $230, Monteiro asked White whether "the dude in black" was the person to see for future purchases if White were unavailable. White replied affirmatively and informed Monteiro that Dowdell went by the name "Smoke." Monteiro departed, after informing White that he would be returning in a short while to make another purchase.
Some 45 minutes later, Monteiro returned to the project and saw Dowdell on a bicycle. Monteiro approached Dowdell, who asked Monteiro if he wanted anything. Monteiro responded that he was looking for White, and Dowdell then biked over to the spot where White was standing. White came over to Monteiro's car and, for the second time that night, sat down beside Monteiro in the passenger seat. Monteiro told White that he wished to purchase more drugs, as well as baggies for repackaging. White agreed and, after directing Monteiro to a parking area close to the spot of the first transaction, sold him 1.2 grams of crack cocaine and baggies for $210.
Monteiro returned for a third buy on July 16, ten days after the first two. When he arrived, he saw Dowdell standing in a small group, wearing blue jeans and a blue checkered shirt. Monteiro again asked for White, who was unavailable. Monteiro asked for directions and drove away, making it appear that he was going off to search for White. After waiting long enough to give the impression that the search was unsuccessful, he returned to the project looking for Dowdell. He found Dowdell on the sidewalk, still wearing a blue checkered shirt. Monteiro called out "Yo, Smoke, can I holler at you." Dowdell approached Monteiro's car, and the two of them proceeded to have a conversation through the passenger-side window. Continuing to address Dowdell as "Smoke," Monteiro asked for about $200 worth of crack cocaine. Dowdell left briefly to meet with another individual and then returned with six bags of crack cocaine, worth approximately $100. Seven more bags would eventually follow. The total weight of the thirteen bags was approximately 2.3 grams. During this whole encounter, Dowdell was only partially visible on the video that Monteiro's surveillance camera recorded.
Driving away, Monteiro narrated a description of Dowdell for the surveillance recording. He stated,
Later that day, Dowdell was arrested on an outstanding warrant unrelated to his transactions with Monteiro. He was brought to a Boston police station where a booking photo was taken. In the photo, Dowdell was wearing a blue checkered shirt, as Monteiro had described earlier in the day. Later, around four hours after completing the buy from Dowdell, Monteiro was shown the photograph and identified the depicted individual as "Smoke." Monteiro reported that the individual in the photograph was the same person from whom he had purchased drugs that day and whom he had seen standing on the corner with White ten days beforehand.
Because the timing of particular pre-trial events is important to our legal analysis, we must delve into some detail in retracing the path on which this case traveled before it reached the jury.
On March 25, 2002, eight months after the July 2001 encounters at the housing project, a Suffolk County grand jury indicted Dowdell, based on those events, for distributing a controlled substance in the vicinity of school property. At his arraignment, he pled not guilty and was released on bail, which was subsequently revoked in October 2003 due to a charge on an unrelated crime. On April 12, 2004, Dowdell's appointed counsel withdrew his representation and was replaced. That replacement would in turn withdraw in August of that year, and the court appointed a third attorney.
On November 17, 2004, the federal government filed a criminal complaint against Dowdell based on the July 2001 events, charging him with distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). At that time, Dowdell was already serving a 27-month sentence in the Suffolk County House of Correction after a conviction on the unrelated charge that had triggered his bail revocation. One month later, in December 2004, the Commonwealth entered a nolle prosequi on the March 25, 2002 indictment for distributing a controlled substance in the vicinity of school property, effectively terminating its prosecution. Dowdell remained in state custody as he continued to serve his ongoing sentence on the unrelated charge, but from this point onward he faced only the federal distribution charge.
On February 4, 2005, then unrepresented by counsel, Dowdell wrote a letter to a clerk for the magistrate judge overseeing the pre-trial proceedings in his federal case. The letter invoked his speedy trial rights under 18 U.S.C. § 3161. Nearly three weeks later, Dowdell followed this letter with a formal request under the Interstate Agreement on Detainers (IAD), 18 U.S.C.App. 2, § 2, that he be transferred from state to federal custody as he awaited the resolution of the federal charge. On March 14, 2005, the federal government petitioned for a writ of habeas corpus ad prosequendum, and on March 22, 2005, Dowdell was brought into federal district court for his initial appearance, at which point he was assigned new representation.
During the initial appearance, the prosecutor acknowledged that Dowdell's transfer into federal custody was pursuant to a writ "based on the defendant's request under the interstate agreement on detainers." He proceeded to explain that Dowdell had no intention of waiving his IAD rights, which Dowdell's counsel confirmed. By preserving his rights under the IAD, Dowdell was to remain in federal custody and receive credit toward the fulfillment of his term of incarceration for the unrelated charge in the state-court system, but receive no credit toward any eventual federal sentence for the distribution offense until the state-court sentence had fully elapsed.
The next day, March 23, a federal grand jury indicted Dowdell, charging him with one count of "knowingly and intentionally possess[ing] with intent to distribute and distribut[ing] a quantity of cocaine" in violation of § 841(a)(1). Dowdell was arraigned on this charge on March 29, 2005. As in the state court proceedings, he entered a plea of not guilty. The court held an initial status conference on May 11, 2005, during which it set a deadline of June 23 for all dispositive motions. At Dowdell's request, that deadline was later extended to July 8.
Dowdell filed a motion to dismiss the indictment at the new July 8 deadline, claiming a violation of the Speedy Trial Act, 18 U.S.C. § 3161, as well as violation of the Sixth Amendment.1 Specifically, Dowdell posited that prejudice had resulted from the pre-indictment delay in federal court.2 In an unsworn declaration, Dowdell contended that...
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