U.S. v. Burns, s. 92-5074

Citation990 F.2d 1426
Decision Date19 March 1993
Docket Number92-5175,Nos. 92-5074,s. 92-5074
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donald Berry BURNS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph L. LAFORNEY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Thomas Franklin Loflin, III, Durham, North Carolina, argued (William H. Dowdy, Wilmington, NC, on brief), for defendant-appellant Laforney.

David Taylor Shelledy, Crim. Div., U.S. Dept. of Justice, Washington, DC, argued (Sidney Glazer, Crim. Div., U.S. Dept. of Justice, Washington, DC, Margaret Person Currin, U.S. Atty., J. Douglas McCullough, Sr. Litigation Counsel, Raleigh, NC, on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.

OPINION

ERVIN, Chief Judge:

Following trial by jury, Donald Berry Burns and Joseph L. Laforney were convicted of charges stemming from a scheme to import marijuana and cocaine into the United States. Their cases, consolidated on direct appeal, present numerous claims in which we find no merit. We therefore affirm the judgment of the district court.

I

The manifold issues presented by this appeal rest upon procedural history of some complexity, which for clarity's sake we describe in two parts.

A.

On March 12, 1991 a grand jury in the Eastern District of North Carolina returned an eleven-count indictment against Burns, Laforney, and four other defendants. 1 Laforney was charged with (1) conspiring to import marijuana and cocaine into the United States, 21 U.S.C. § 963; (2) conspiring to distribute and to possess with intent to distribute marijuana and cocaine id. § 846; (3) conspiring to smuggle marijuana and cocaine into the United States, 18 U.S.C. § 545; and (4) travelling in interstate commerce with intent to receive payment for promotion of a business enterprise involving distribution of cocaine, id. § 1952(a)(3). Burns was charged with (1) conspiring to import cocaine into the United States, 21 U.S.C. § 963; (2) conspiring to distribute and to possess with intent to distribute cocaine, id. § 846; (3) conspiring to smuggle marijuana and cocaine into the United States, 18 U.S.C. § 545; and (4) travelling in interstate commerce with intent to facilitate a business enterprise involving distribution of cocaine, id. § 1952(a)(3).

Upon Burns's pretrial motion, the district court dismissed the three conspiracy counts against him as breaches of a plea agreement Burns had entered in connection with an indictment returned on May 16, 1989 in the Eastern District of North Carolina. See United States v. Hawes, 774 F.Supp. 965, 972-977 (E.D.N.C.1991). The 1989 indictment charged Burns with essentially the same offenses as its 1991 counterpart, 2 except that the drug alleged to have been the object of its importation- and distribution-conspiracy counts was marijuana, not cocaine. 3

At the time the grand jury returned the 1989 indictment, the Government had received unsubstantiated reports that Burns was involved in cocaine as well as marijuana trafficking. Based upon the facts then available to them, however, drug investigators believed that all the acts allegedly committed in furtherance of the conspiracy counts in the 1989 indictment stemmed from a single marijuana importation and distribution conspiracy. The Government knew, for example, that Burns and his supposed co-conspirators had travelled between various parts of the Caribbean and the southeastern United States in the late summer and early autumn of 1987. When the 1989 indictment proceeded to trial, the Government introduced evidence of this travel to prove the defendants' involvement in the marijuana conspiracy.

Shortly after all the evidence in Burns's 1989 marijuana-conspiracy trial had been placed before the jury, the Government's investigators obtained more facts incriminating Burns and Laforney in drug-related activities. While the jurors were deliberating, law enforcement officials learned that Luis Taboada, a Colombian citizen, had been apprehended in South Carolina together with more than 500 kilograms of cocaine. Interviews with Taboada revealed that in addition to their marijuana-related activities, Burns, Laforney, and others had brought three large cocaine shipments from the Caribbean into the United States between the summer of 1986 and October 1987. (One of the shipments, the result of a February 1987 journey to Aruba, was the basis for the single interstate travel violation charged in Burns's indictment.) Thus the Government became aware that the overt acts it had thought were committed in furtherance of the 1989 marijuana-importation conspiracy actually involved cocaine.

Burns's trial on the counts in the 1989 indictment resulted in a hung jury. Burns then entered into a plea agreement in which he pleaded guilty to the indictment's two interstate travel counts in exchange for the Government's promise that it would not oppose his motion to dismiss the marijuana-conspiracy counts. Shortly after Burns was sentenced on his guilty plea, the magnitude of his and Laforney's involvement with cocaine importation came to light through the detailed testimony of Robert Kunhardt, an alleged participant in the conspiracy. Relying on Kunhardt's revelations, the Government sought--and the grand jury returned--a new indictment against Burns and Laforney on April 19, 1990. As the Government's knowledge of the group's activities further increased, it twice sought and obtained superseding indictments against both men.

After the grand jury returned the second superseding indictment on March 12, 1991, Burns and Laforney moved to dismiss it on various grounds. Following an evidentiary hearing, the district court dismissed the conspiracy charges against Burns as breaches of his 1989 plea agreement. The court reasoned in substance that the various separate marijuana and cocaine conspiracies with which Burns was charged in the 1989 and 1991 indictments in fact constituted a single conspiracy to import both marijuana and cocaine. Because the conspiracy offenses charged in the 1991 indictment were the same as those charged in the 1989 indictment, the court held that Burns was entitled to specific performance of the terms of his plea agreement. Although the agreement did not specifically forbid the Government from further prosecuting Burns for anything other than violations of the criminal tax laws, the district court reasoned that a provision binding the Government not to oppose Burns's motion to dismiss the 1989 indictment's conspiracy counts also obliged prosecutors not to seek his subsequent indictment for the same substantive offenses. The court did not directly address Burns's motion to dismiss the interstate travel count in its memorandum opinion. That motion implicitly was denied, however, by the court's decision to grant Burns's motion only with respect to the 1991 indictment's three conspiracy counts. Laforney's motions, which challenged the substance of the indictment against him and had no foundation in an extrinsic plea agreement, were summarily denied.

Disappointed in their efforts to have the charges against them in the 1991 indictment dismissed, Burns and Laforney were tried before the district court in a two-day proceeding. The evidence, which consisted mainly of the testimony of Kunhardt, Taboada, and others who had travelled with Burns and Laforney to procure narcotics, resulted in Burns's conviction on the interstate travel count, the sole charge remaining against him. Laforney was convicted of conspiring to import cocaine and marijuana, but acquitted on his other three charges. The district court sentenced Burns and Laforney to terms of four and five years' imprisonment, respectively, and this appeal followed.

B.

The following facts relate to Burns's subsidiary contention that the district court's refusal to appoint him a new attorney on the eve of trial infringed his Sixth Amendment right to have the assistance of counsel for his defense.

After the grand jury returned the four original counts of the 1991 indictment against Burns, the district court appointed an attorney to represent him in the forthcoming proceedings. In response to a request from Burns, the attorney successfully moved the district court to dismiss the conspiracy counts of the indictment. When Burns asked him to seek the dismissal of the interstate travel count as well, the attorney opined that his chances of persuading the district court to dismiss the count were scant. Counsel also declined to press the point at the hearing on the motions. 4 Burns now contends that his conviction on the interstate travel count stems directly from his attorney's failure zealously to pursue the dismissal of the count in the proceedings below.

Throughout the period encompassed by the return of the 1991 indictment and the district court's grant of his motion to dismiss the conspiracy counts, Burns was serving an active sentence in the federal prison at Butner, North Carolina. 5 Several weeks before his scheduled release, federal corrections officials informed Burns that he would be turned over to the custody of United States marshals upon the expiration of his sentence unless bail were set on the 1991 indictment. Burns then asked his appointed attorney to file a bond motion and attempt to schedule a hearing on it before his release from Butner. Four days before Burns's release, and again two days later, the attorney informed him that no bond motion had been filed. On October 11, 1991 Burns was released from the Butner facility and taken by United States marshals to a jail in Columbus County, North Carolina to await trial on the charges lodged in the indictment. Approximately two weeks later Burns's attorney informed him that the bond motion at last had been filed, and that he merely was waiting for the district court to schedule a hearing in the matter. The bond hearing took place...

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