U.S.A v. Culbertson

• Decision Date: 10 March 2010
• Docket Number: Docket No. 09-0485-cr.
• Citation: 598 F.3d 40
• Parties: UNITED STATES of America,Appellee, v. Troy CULBERTSON, Defendant-Appellant.*
• Court: U.S. Court of Appeals — Second Circuit

598 F.3d 40

UNITED STATES of America, Appellee, v. Troy CULBERTSON, Defendant-Appellant.^*

Docket No. 09-0485-cr.

United States Court of Appeals

Second Circuit.

Submitted: Oct. 7, 2009.

Decided: March 10, 2010.

Troy Culbertson, Brooklyn, NY, pro se.

Stephen J. Meyer, Assistant United States Attorney (Benton J. Campbell United States Attorney), United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for Appellee.

Before: MINER, CABRANES, Circuit Judges, and RAKOFF, ^** District Judge.

MINER, Circuit Judge:

Defendant-appellant Troy Culbertson ("Culbertson" or "defendant-appellant") charged in a superseding indictment with various narcotics offenses, moves this Court pro se for leave to proceed in forma pauperis and for appointment of counsel to pursue his interlocutory appeal from an order of the United States District Court for the Eastern District of New York (Johnson, J.). By that order, the district court denied Culbertson's motions: for dismissal of the indictment for violation of the right to a speedy trial under the Speedy Trial Act of 1974, as amended, 18 U.S.C § 3161 et seq. ("Speedy Trial Act"); for appointment of new counsel; and for a psychiatric evaluation. The appealability of an order denying defendant's motion seeking appointment of new counsel and of an order denying a psychiatric examination are questions of first impression in our Court. For the reasons given below, we dismiss the appeal nostra sponte for lack of appellate jurisdiction and deny the motions addressed to this Court as moot.

BACKGROUND

Culbertson was arrested by agents of the United States Bureau of Immigration and Customs Enforcement ("ICE") on January 10, 2008, at approximately 1:30 p.m. in the lobby of Terminal 4 of the JFK Airport in New York City. The occasion of his arrest was his meeting with Patricia Lancaster ("Lancaster"), who was then known to be carrying controlled substances consisting of heroin and cocaine in her various items of luggage. In a complaint filed later that day by ICE Special Agent John Lattuca, Lancaster and Culbertson were charged with conspiracy to import into the United States 100 grams or more of a substance containing heroin and five kilograms or more of a substance containing cocaine, all in violation of 21 U.S.C. § 952(a). According to the com-plaint, Culbertson was advised of his Miranda lights following his arrest and thereafter "stated, in sum and substance that he was aware that LANCASTER had traveled from Trinidad to the United States transporting narcotics, and that he had introduced LANCASTER to the two individuals with whom LANCASTER agreed to transport narcotics into the United States." The complaint included the following statement by Agent Lattuca "Because the purpose of this Complaint is to state only probable cause to arrest, I have not described all the relevant facts and circumstances of which I am aware."

On the day of his arrest, an order of detention was issued for Culbertson by Magistrate Judge Marilyn D. Go, and, on January 18, 2008, Culbertson appeared before Magistrate Judge Ramon E. Reyes Jr. for further proceedings. At that time, Judge Reyes relieved Federal Defender Mildred Whalen as counsel for Culbertson and appointed CJA panel member John F. Kaley to represent Culbertson. At a status conference hearing held before thenMagistrate Judge Kiyo A. Matsumoto on February 6, 2008, Mr. Kaley was relieved as counsel at Culbertson's request, and CJA panel member Julie Clark was appointed to represent Culbertson. The occasion for the substitution was Mr. Kaley's statement to the court that Culbertson had "a different plan and strategy [from that proposed by Kaley] and said he would like a new lawyer." On the same day, with new counsel Ms. Clark present, Culbertson applied to exclude the period from February 6, 2008, until March 7, 2008, from the Speedy Trial Act computation to allow for the conduct of plea negotiations. Judge Matsumoto granted the application, ordered the exclusion and directed that an indictment be filed at the end of the excluded period. A superseding indictment was filed as directed on March 7, 2008, and named Culbertson and four others as defendants. Culbertson was charged in four of the seven counts of the indictment. In Count One, he was charged, along with David Simpson, Sheldon Holder and Patricia Lancaster, with conspiracy to import heroin and cocaine, in violation of 21 U.S.C. § 952(a). In Count Two, he was charged, along with Holder and Lancaster, with conspiracy to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 84(5. Together with Holder and Lancaster¹, Culbeitson was charged in Count Five with importation of heroin and cocaine, in violation of 21 U.S.C. § 952(a), and in Count Seven, which also named Holder as a defendant, with attempt to possess heroin and cocaine, in violation of 21 U.S.C. § 846.

On March 20, 2008, Culbertson was arraigned on the superseding indictment before Magistrate Judge Reyes, and a plea of not guilty was entered on his behalf. At that time, a status conference was set for March 29, 2008, before United States District Judge Sterling Johnson, Jr. On March 28, the district court set a date for the making of motions by defendants and for responses by the government, excluded the period of March 28, 2008, through May 15, 2008, for speedy trial computation purposes, and continued the case for a further status conference to May 15, 2008, as to various defendants including Culbertson. By letter dated March 31, 2008, Attorney Clark notified Culbertson that she would not file a motion he had prepared "because it is frivolous" and that she would be seeking removal as his counsel for "abusive behavior during several of our attorneyclient meetings."

Culbertson filed a motion pro se to dismiss the indictment on April 3, 2008. The gravamen of his motion was that the gov-ernment failed to properly and timely indict him. His claim was that he was not named in the original indictment and that his superseding indictment was therefore not appropriate. However, as the government noted, and as the district court explained in its Memorandum and Order filed on May 23, 2008, the superseding indictment was the initial indictment as to him, because it was the first and only indictment in which he was named. As far as timeliness, Culbertson was in fact indicted within the thirty-day period after arrest as required by the Speedy Trial Act. See 18 U.S.C. § 3161(b). He was arrested on January 10, 2008, and on February 6, 2008, the magistrate judge ordered the exclusion of time until March 7, 2008, the date the indictment was in fact filed. Accordingly, for Speedy Trial Act purposes, only twenty-eight days passed between arrest and indictment. In view of the foregoing, the court also rejected Culbertson's claim that the absence of an original indictment caused him to have insufficient notice of the crimes charged.

At a conference hearing held before Judge Johnson on April 4, 2008, the court granted the application of Attorney Clark to be relieved as counsel, appointed CJA panel member Allen Lashley as counsel for Culbertson, directed Attorney Clark to remain as counsel until new counsel was in place, and adjourned the proceedings until April 10, 2008. On that date, Culbertson appeared before Judge Johnson with attorneys Lashley and Clark. Clark reported that all materials had been turned over to Lashley, and the court finally relieved her as counsel. The court recognized that new counsel needed adequate time to review the case and scheduled a status conference for all defendants for May 15, 2008. The court's minutes for May 15, 2008, take note of the denial of Culbertson's pro se motion and include the following: 2nd call for Defendant Troy Culbertson.... Defense counsel [LashleyJ indicates defendant has fired counsel because... he will not file a motion to dismiss indictment.... Court will not relieve counsel. Defendant will proceed pro se if he so wishes. Counsel will remain as standby to assist and advise.... Govt's request for competency evaluation of defendant is DENIED.

A further status conference was scheduled for June 27, 2008.

By motions filed on June 12, 2008, Culbertson sought "dismissal of indictment,... appointment of counsel [and] determination of medical competency to stand trial." With respect to his motion to dismiss the indictment, Culbertson once again advanced the argument that he was not indicted within thirty days of his arrest, contending, inter alia, that he was "tricked into waiving constitutional rights." In support of his Speedy Trial Act violation argument, Culbertson cited to Zedner v. United States, 547 U.S. 489, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), and United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir.2000). In seeking appointment of new counsel, Culbertson alleged that he "does not want to proceed pro se and never did." As to his previous counsel, Culbertson asserted that "Mrs. Walen (sic) had to resign for a conflict of interest, Mr. Kaley wanted me to waive my indictment and he was dismissed and Ms. Clark would not file a motion." The moving papers included no allegations regarding Mr. Lashley. In support of his motion for psychiatric evaluation, Culbertson asserted that he "was receiving a disability check for the past 7 yrs. approx." and "does not know what his mental disease or defect is." In this regard, he noted that he "spent 18 yrs. in state prison from 18 yrs. old."

In a letter dated July 11, 2008, responding to Culbertson's motion, the govern-ment observed that the district court had previously ruled on the same Speedy Trial Act claim. The government again pointed out that Culbertson was properly indicted within thirty days of his arrest, taking into account the time excluded by the Speedy Trial Act pursuant to his agreement for the exclusion of time in an effort to enable the parties to resolve the charges against Culbertson by a plea bargain....