U.S. v. Boyd, s. 94-8074
| Decision Date | 18 December 1997 |
| Docket Number | 95-9167 and 95-9187,94-8612,Nos. 94-8074,s. 94-8074 |
| Citation | 131 F.3d 951 |
| Parties | 11 Fla. L. Weekly Fed. C 891 UNITED STATES of America, Plaintiff-Appellee, v. Calvin Maurice BOYD, a.k.a., "Mee Tee"; Pinkney Clowers, III, a.k.a. "Boo Boo", a.k.a. "Dog", a.k.a "Cameiko", Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Calvin M. BOYD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pinkney CLOWERS, III, a.k.a. Dog a.k.a. Boo Boo, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Calvin BOYD, a.k.a. Mee Tee, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William Washington Larsen, Jr., Dublin GA, for Boyd.
Charles T. Erion, Erion & Exum, Macon, GA, for Clowers.
James L. Wiggins, U.S. Atty., Miriam W. Duke, Asst. U.S. Atty., Macon GA, David Kris, Jonathan J. Rusch, Ian C. Smith Dewaal, U.S. Dept. of Justice, Washington, DC, for United States.
Appeals from the United States District Court for the Middle District of Georgia.
Before COX and BARKETT, Circuit Judges, and HUNT, * District Judge.
Calvin M. Boyd and Pinkney Clowers III appeal their convictions and sentences on various charges relating to a crack cocaine conspiracy in Macon, Georgia. For the reasons stated below, we vacate Clowers' drug conspiracy conviction and sentence and remand for resentencing; we affirm in all other respects.
After the breakup of the Macon, Georgia drug ring of which he was a member, Pinkney Clowers decided to go into business for himself. In early 1990 Clowers formed a partnership with Arleigh Carrington, one of the leaders of the old drug ring. The two bought cocaine powder from suppliers in Atlanta and Miami and "cooked" the powder into crack for sale. At first Clowers and Carrington sold the crack themselves; when their profits grew they recruited other people, including Calvin Boyd, to do the street-level dealing and to commit robberies to finance their drug operations. In addition to selling crack on the street, Boyd served as the group's "enforcer." In November 1991 Clowers was arrested after a consent search of his automobile following a traffic stop revealed a revolver, the end of a smoked marijuana cigarette, a ledger tracking drug transactions, and a bag containing thousands of dollars in cash. The other members of the group were arrested later.
A grand jury returned a twenty-count indictment against the members of the conspiracy. Boyd and Clowers were tried jointly, 1 and a jury convicted each of them on (a) one count of conspiring to distribute cocaine base (Count 1) in violation of 21 U.S.C. § 846; (b) one count of conspiring to interfere with commerce by threats or violence (Count 2) in violation of 18 U.S.C. § 951 (Hobbs Act); and (c) one count of conspiring to use or carry firearms during/in relation to drug trafficking crimes or crimes of violence (Count 3) in violation of 18 U.S.C. § 924(c). Clowers also was convicted on one count of operating a continuing criminal enterprise (CCE) (Count 18), in violation of 21 U.S.C. § 848. Boyd and Clowers filed timely notices of appeal.
During the pendency of their original appeals, Boyd and Clowers also moved for new trials. The district court ordered an evidentiary hearing on the motions. At the time of this activity, Boyd was incarcerated at the United States Prison in Florence, Colorado. Boyd's counsel notified him that he would not be permitted to attend the evidentiary hearing. In response, Boyd filed pro se with this court an emergency motion to be present at the evidentiary hearing. He also filed a pro se "Motion to Proceed Pro Se," claiming that he would have no choice but to represent himself at the evidentiary hearing should we deny his earlier emergency motion. This court denied both motions.
During Boyd's pro se activity with this court, his attorney filed a motion in the district court to require Boyd's presence at the evidentiary hearing. The district court denied this motion, relying in part on its conclusion that no evidence had been presented which demonstrated that Boyd had any relevant information known only to him. Boyd then filed with the district court a pro se motion to waive counsel and proceed pro se at the evidentiary hearing only. The district court held that Boyd had waived his right to proceed pro se by filing his motion for new trial through counsel, and alternatively that Boyd improperly sought hybrid representation and was filing the motion solely for the purpose of evading the court's denial of his earlier motion to be present. The district court eventually held the evidentiary hearing without Boyd's presence, and denied Boyd and Clowers' motions for new trial; Boyd and Clowers appealed from this ruling as well. However, in the interim a panel of this court already had heard oral argument on Boyd and Clowers' original appeals. In addition, the Supreme Court had decided Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), the holding of which is relevant to Clowers' appeal. We decided to rehear Boyd and Clowers' original appeals along with their new appeals, and ordered supplemental briefing by the parties on the Rutledge issue.
Boyd and Clowers each raise numerous issues on appeal. We address only three here: 2 (1) whether Boyd's Fifth and Sixth Amendment rights were violated by his exclusion from the evidentiary hearing on his motion for new trial; (2) whether the recent holding in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) requires us to vacate Clowers' conviction of conspiring to distribute cocaine base or his CCE conviction; and (3) whether Boyd and Clowers were denied a fair trial due to statements made by the prosecutor in her closing argument.
Boyd argues that his exclusion from the evidentiary hearing on his motion for new trial violated his constitutional right of presence. A number of older decisions squarely address this question, stating that a criminal defendant has no right to be present at a hearing on a motion for new trial. See, e.g., Council v. Clemmer, 177 F.2d 22, 24-25 (D.C.Cir.1949); United States v. Lynch, 132 F.2d 111, 113 (3d Cir.1942); Alexis v. United States, 129 F. 60, 64-65 (5th Cir.1904); see also L.S. Rogers, Annotation, Absence of Convicted Defendant During Hearing or Argument of Motion for New Trial or in Arrest of Judgment, 69 A.L.R.2d 835 (1960 & Supp.1997) (collecting cases). We write today to address the subject in light of more recent Supreme Court authority.
A defendant's constitutional right to presence largely stems from the Confrontation Clause of the Sixth Amendment, see, e.g., United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985), but the Supreme Court also has recognized that some aspects of this right are protected by due process, see Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987). For the reasons stated below, we hold that the district court did not violate Boyd's Confrontation Clause or due process rights in denying his request to be present at the evidentiary hearing. 3
The Supreme Court on numerous occasions has referred to a defendant's Confrontation Clause right to be present as a "trial right," see Stincer, 482 U.S. at 738 n. 9, 107 S.Ct. at 2663 n. 9 (collecting cases), recognizing that the right is designed to promote reliability at trial, see, e.g., id. at 737, 107 S.Ct. at 2663. While the evidentiary hearing may have resulted in a new trial for Boyd, nothing said or done at the evidentiary hearing could have affected the reliability of Boyd's original trial, which had been concluded. The evidentiary hearing had no "direct relationship with [Boyd's] trial," id. at 740, 107 S.Ct. at 2664, and his exclusion from the hearing did not "interfere[ ] with his opportunity for effective cross-examination" of the trial witnesses, see id. As such, Boyd's exclusion from the hearing did not violate his Confrontation Clause right to be present.
In addition to acknowledging a criminal defendant's Confrontation Clause right to be present at all stages of his trial, the Supreme Court has recognized a seemingly broader due process right to be present "at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." See Stincer, 482 U.S. at 745, 107 S.Ct. at 2667. The evidentiary hearing in Boyd's case focused on (a) whether the government had made a deal with Curtis Francis, a government witness, and (b) whether the government knowingly allowed Francis to give allegedly perjured testimony. Boyd had no personal knowledge or relevant information regarding either the government's alleged negotiations with Francis or the truth of Francis' testimony. He has made no argument, except in the form of a conclusory statement, that he could have assisted either his counsel or the court in a way that would have resulted in a more reliable hearing. We conclude that Boyd's presence at the hearing would have been "useless, or the benefit but a shadow," Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934), and thus his exclusion did not violate his due process rights.
Clowers was convicted both of conspiring to distribute cocaine base in violation of 21 U.S.C. § 846, and of operating a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. The Supreme Court recently ruled that a § 846 drug conspiracy is a lesser included offense of operating a CCE when the "in concert" element of the CCE conviction rests on the same agreement as the "agreement" underlying the conspiracy conviction. See Rutledge v. United States, 517 U.S. 292,...
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