U.S. v. Doran

Decision Date14 August 1989
Docket NumberNo. 87-2385,87-2385
Parties28 Fed. R. Evid. Serv. 1070 UNITED STATES of America, Plaintiff-Appellee, v. Michael Patrick DORAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

David J. Richman (Mark Apelman with him on the brief), of Coghill & Goodspeed P.C., Denver, Colo., for defendant-appellant.

Wayne T. Dance, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge, and BROWN, * District Judge.

SEYMOUR, Circuit Judge.

Michael Patrick Doran was convicted of conspiracy to possess and distribute controlled substances, 21 U.S.C. Sec. 846 (1982) (current version at 21 U.S.C.A. Sec. 846 (West Supp.1989)), violating the Travel Act, 18 U.S.C. Sec. 1952 (1982) (current version at 18 U.S.C. Sec. 1952 (Supp. V 1987)), and possession with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982). On appeal, he asserts a violation of section 101 of the Speedy Trial Act, 18 U.S.C. Sec. 3161 (1982 & Supp. III 1985), prosecutorial vindictiveness, the improper introduction of prior wrongful acts under Fed.R.Evid. 404(b), the improper use of co-conspirator hearsay under Fed.R.Evid. 801(d)(2)(E), and the insufficiency of the evidence. We reverse as to two counts for failure to comply with the Speedy Trial Act, and affirm the conviction on the remaining counts.

I. BACKGROUND

This case arose in the context of a large Utah-based drug conspiracy. Doran was originally indicted in July 1986 in five counts of a ninety-two count indictment. The indictment charged six defendants with conspiracy to commit violations of the Controlled Substance Act, numerous substantive drug violations, and an assortment of related crimes. At the center of the indictment was Keith Lynn Jenkins, who was charged with controlling a Utah distribution network for both marijuana and cocaine. Count 1 charged Doran with conspiracy to supply both marijuana and cocaine to Jenkins. Counts 52, 59, and 62 all charged Doran with violating or aiding and abetting violations of the Travel Act, and involved the transportation of marijuana to Utah from Doran's residence in Arizona. Count 63 charged him with possessing one hundred fifty pounds of marijuana with intent to distribute.

Immediately prior to trial, the Government dismissed Counts 52, 62, and 63 because the dates in the indictment were incorrect. The trial began on December 1, 1986 with only two counts pending against Doran. Approximately two weeks into the trial, Doran's attorney, Mr. Kim Clegg, was hospitalized. After exploring both the possibility of a short delay to await Mr. Clegg's return and the feasibility of proceeding with new counsel for Doran, the court declared a mistrial as to Doran and proceeded with the trial of the remaining defendants.

No further action was taken with respect to Doran's case by the court, Mr. Clegg, or the Government until February 27, 1987, when Doran filed a motion to dismiss under the Speedy Trial Act. At a hearing on Doran's motion, the court seemed to concede that the Speedy Trial Act deadline had expired, but nevertheless orally dismissed the motion. Without making explicit findings, the court cited 18 U.S.C. Sec. 3161(h)(8)(A), id. Sec. (B)(i) and (iv). Doran attempted an interlocutory appeal to this court. Contemporaneously with his effort, the Government filed a superceding indictment, which added five counts to the two then pending against him. The new counts charged Doran with possessing marijuana with intent to distribute (Counts 97, 99, and 101); and two Travel Act violations (Counts 98 and 100). Count 98 mirrored Count 52 of the original indictment, but with a different, presumably corrected date. Counts 99 and 100 echoed Counts 63 and 62, respectively. Counts 97 and 101 added no new facts to the indictment, but charged Doran with substantive liability for acts committed by Jenkins.

Doran responded by filing another motion to dismiss, this time charging that the The Government's case consisted primarily of the testimony of fringe participants in the conspiracy. These witnesses all admitted to purchasing fairly large quantities of drugs from Jenkins, and one testified that Jenkins named Doran as his source for marijuana. 1 The most damaging testimony was that of Brian Smith, who testified that between 1983 and 1984 he made approximately twenty trips to Arizona with Jenkins in order to pick up loads of marijuana from Doran. He actually saw Doran on only two of these excursions. Doran was directly connected to Jenkins and marijuana by testimony regarding at least three occasions on which Doran was with Jenkins when Jenkins delivered large quantities of marijuana to witnesses' homes in Utah. 2

superceding indictment was a vindictive response to his efforts to assert his speedy trial rights. The court denied this motion, and the case proceeded to trial on the seven counts of the superceding indictment.

One witness, however, did not not fit this general pattern. DEA agent Roger Wallace testified that Doran had agreed to sell him three kilos of cocaine in the fall of 1981. Although the transaction never took place, Wallace testified that their dealings proceeded to the point where both Wallace and Doran traveled to Miami in order to consummate the sale. This testimony differed from the rest of the Government's case in two primary respects: it did not describe acts charged in the indictment; and it involved cocaine, not marijuana. Doran filed a motion in limine before the first trial objecting to this testimony as prejudicial evidence of prior bad acts inadmissible under Federal Rules of Evidence 403 and 404(b). After a pretrial hearing, the court ruled the testimony "admissible, at least against Doran, for the limited purpose of proving motive, intent, preparation, plan, knowledge, and, I think, [also] intent to a limited extent...." Rec., vol. V, at 12. Before Doran's second trial, the magistrate summarily denied a similar motion.

Doran now presents five grounds for reversal: a violation of the Speedy Trial Act, prosecutorial vindictiveness, improper admission of evidence of other crimes, improper admission of hearsay statements made by alleged coconspirators, and the insufficiency of the evidence below to support a conviction.

II. SPEEDY TRIAL ACT

Doran argues that Counts 1 and 59 of the indictment, the two counts outstanding against him at the time of the mistrial, should have been dismissed for failure to comply with the Speedy Trial Act. The Speedy Trial Act requires that "[i]f the defendant is to be tried again following a declaration by the trial judge of a mistrial ... the trial shall commence within seventy days from the date the action occasioning the retrial becomes final." 18 U.S.C. Sec. 3161(e). The trial court declared a mistrial in Doran's case on December 16, 1986. Doran filed his motion to dismiss under the Act on February 27, 1987. No one contests that more than seventy days had passed since the date of the mistrial order. The sole issue is whether the elapsed time should be excluded from the Speedy Trial Act calculations based on the exceptions listed in section 3161(h).

Section 3161(h) sets out a number of delays that are excludable from the calculation of the seventy-day period. All but section 3161(h)(8), the last of the list, are fairly specific. The parties agree that the specific exceptions are not applicable to "(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time in which the trial of any such offense must commence:

this case, and that if the time is excludable, it must be so under section 3161(h)(8)(A):

"....

"(8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." (Emphasis added).

This exception to the otherwise precise requirements of the Act was meant to be a "rarely used" tool for those cases demanding more flexible treatment. See United States v. Tunnessen, 763 F.2d 74, 76 (2d Cir.1985); United States v. Carrasquillo, 667 F.2d 382, 386-88 (3d Cir.1981); S.Rep. No. 1021, 93d Cong., 2d Sess. 41 (1974) U.S.Code Cong. & Admin.News 1974, p. 7401. In such cases, the trial court must state "the reasons why it believes that granting the continuance strikes the proper balance between the ends of justice on the one hand and the interest of society in a speedy trial and the interest of the defendant in a speedy trial on the other." S.Rep. No. 1021 at 41.

The requirement of an explicit finding serves two functions critical to the proper use of this exception: "First, it insures careful consideration of the relevant factors by the trial court. Second, the requirement provides the appellate court with an adequate record on which to review the district court's decision." Tunnessen, 763 F.2d at 77. See also United States v. Brooks, 697 F.2d 517, 522 (3d Cir.1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952 (1983). Failure to address these issues on the record creates the unnecessary risk of granting continuances for the wrong purposes, and...

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