U.S. v. Davis

• Decision Date: 28 June 1982
• Docket Number: No. 81-5465,81-5465
• Citation: U.S. v. Davis, 679 F.2d 845 (11th Cir. 1982)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence Sheppard DAVIS, Joseph Leroy Armstrong and James O. Davis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 845

679 F.2d 845

UNITED STATES of America, Plaintiff-Appellee, v.Clarence Sheppard DAVIS, Joseph Leroy Armstrong and James O Davis, Defendants-Appellants.

No. 81-5465.

United States Court of Appeals Eleventh Circuit.

June 28, 1982.

James P. Judkins, Davis & Judkins, Tallahassee, Fla., for Clarence S. Davis and Armstrong.

William B. Richbourg, Pensacola, Fla., for James O. Davis.

Thomas R. Santurri, Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, Chief Judge, HILL and FAY, Circuit Judges.

GODBOLD, Chief Judge:

Appellants challenge their convictions for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 846and841(a)(1).We affirm their convictions.

I.

In the spring of 1980, Sarah Smith began working in drug enforcement with the Escambia County Sheriff's Department in Pensacola, Florida and the Federal Drug Enforcement Agency("DEA").Two DEA agents, Warner and Schmidt, posed as Texans looking for a large, continuous supply of cocaine.

In June 1980 Smith approached James Cohron to act as a middleman for her Texan buyers and appellantJames Davis.She explained to Cohron that Davis did not want to do business with her directly.Cohron did not make any arrangements with Davis to supply the agents until August; however, he agreed to market some cocaine for Davis in June without Smith's knowledge.

Meanwhile Davis and the agents unsuccessfully negotiated concerning several cocaine transactions.Davis spoke with both DEA agents by telephone in July proposing that they give Smith the money for a kilogram (2.2 lbs.) of cocaine at $2,100 an ounce.¹Smith would then follow Davis by car to the sellers somewhere in Florida where the exchange would take place.The sellers were located in the eastern standard time zone, and the round trip would take up to 12 hours.The agents did not agree to this plan, claiming they wanted to test the cocaine themselves before they parted with the money.

On August 13 Davis discussed with agents by phone a plan whereby one of the agents would travel with Smith and with someone acting on behalf of Davis to the sellers who lived five hours driving time from Pensacola and 100 miles from Tallahassee.The agent could then test the cocaine before buying it.The agents again expressed reservations about the plan because of the drive.Davis assured agent Warner that "his man" could be trusted because Davis had known him since the day he was born.

Shortly after this conversation Davis changed the plans by arranging for delivery to the agents in Pensacola, and Cohron began to participate as the middleman.Several days before the proposed delivery date of August 22 Davis drove to Cohron's house and gave Cohron a purported sample of the cocaine the agents would be buying.Cohron reported to the agents that the cocaine was of good quality.²

On August 22 Cohron met with Smith and several agents at a restaurant.The agents showed Cohron a suitcase containing $56,000.Cohron and the agents agreed that he would deliver the cocaine to their motel room that evening.

Late that evening there were a series of phone calls between Cohron and Davis, and Cohron and the agents, because Davis was running behind schedule.Davis told Cohron to stall the buyers; the agents kept pressuring Cohron to deliver.Around midnight appellantsJoseph Armstrong and Clarence Davis("Clarence"), Davis' nephew, arrived at Davis' house in an Oldsmobile that belonged to a woman in Cross City, where Clarence lived.They stayed at the house about 10 minutes and left with Davis in the Oldsmobile.They drove to Cohron's house.Cohron met them at the door, and one of the three gave him the cocaine in a plastic bag inside a brown paper bag.Davis introduced Clarence and Armstrong to Cohron, who had never met the two.All four went into Cohron's bedroom.Davis and Cohron stood by the dresser while Cohron took the cocaine out of the bag and weighed it.Clarence and Armstrong stood by the door about six feet away watching.Cohron discussed with Davis the delivery and Cohron's fee.Davis permitted Cohron to take out one-half ounce as part payment for his participation.

Cohron expressed fear that he might be robbed by the buyers.Davis indicated that he would be nearby in case anything happened.Armstrong told Cohron that he did not want to be involved in the delivery and asked permission to wait at Cohron's house.Cohron refused but suggested that Armstrong wait at a restaurant.

Cohron then headed for the motel driving his own car.Appellants followed in the Oldsmobile driven by Clarence.While Cohron went to the agents' room, appellants parked their car in a gas station across the street from the motel to watch.Cohron was promptly arrested inside the room.As sheriff deputies drove to the gas station to arrest appellants, Armstrong exited from the back seat of the car and began walking away.One of the deputies ordered him to stop.Clarence started the car, and Davis got out.The deputy and Davis struggled over a gun Davis carried in a holster.After Davis was subdued the deputy ordered Armstrong to walk back to the car.The deputy then saw Armstrong drop a film canister later found to contain a small amount of cocaine and attempt to kick it away.Armstrong was also carrying another small container that held baking soda.A loaded pistol resting in its case was found on the back seat of the Oldsmobile.

II.

AppellantJames Davis asserts failure to comply with the Speedy Trial Act.All appellants challenge the indictment, the sufficiency of evidence and a prosecutorial remark.

(A)Speedy Trial Act

The Speedy Trial Act, 18 U.S.C. § 3161(c)(1), requires a defendant to be brought to trial within 70 days of his indictment.Appellants were indicted September 10, 1980.Trial was originally scheduled for November 12, 1980.On the day of trial counsel for appellants³ and the prosecuting attorney informed the court that a plea had been negotiated, and the court scheduled for November 13, 1980 a hearing to accept the pleas.On the day of the hearing Clarence and Armstrong changed their minds and decided to go to trial with different counsel.Although Davis was still willing to plead guilty the government insisted that the plea bargain had been conditioned upon all appellants pleading guilty to spare the expense of trial and withdrew its plea offer to Davis.

The court rescheduled the trial for all defendants for January 14, 1981, finding the time between November 13 and January 14 excludable for purposes of calculating the Speedy Trial Act deadline.The court stated that court space and personnel were unavailable to accommodate the sudden change in pleas until January and that the ends of justice served by granting a continuance outweighed the interest of the public and of the appellants in a speedy trial.

Davis contends that the delay caused by the plea changes cannot be attributed to him because he remained willing to perform the plea agreement.Because he was not brought to trial by November 20, 1980-70 days from indictment-Davis argues that § 3162(a)(2) mandates the dismissal of the indictment against him.

The Act lists several conditions under which time may be excluded from the 70-day computation.Section 3161(h)(7) excludes a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted."We find no violation of the Act.The time had not run for Davis' codefendants, and the two-month delay for Davis was reasonable.

First, we consider the requirement of § 3161(h)(7) that the time had not run for the codefendants.Although general congestion of the court's calendar is an insufficient excuse for delay under the Act, § 3161(h)(8)(C), the circumstances surrounding the change in trial dates justify our attributing the delay to Clarence and Armstrong.The court cancelled the original trial date after all appellants represented that they had agreed to plead guilty.When Clarence and Armstrong refused to plead, the trial could not be worked back into the court's calendar until January 14, 1981.In addition, Clarence and Armstrong needed time to secure new counsel.⁴

The decision by Clarence and Armstrong not to plead guilty is analogous to a defendant's withdrawing a guilty plea.Section 3161(i) provides that when a defendant's time for trial has elapsed because he pleaded guilty and then subsequently withdrew the plea, the 70-day time period runs anew from the date of the court order permitting the plea withdrawal.Had the district court taken the pleas of Clarence and Armstrong on the day counsel informed the court of the pleas, and permitted them to withdraw their pleas the next day, the time for a speedy trial would have been extended to January 22, 1981, 70 days from November 13, 1980.Instead the court allowed Clarence and Armstrong an additional day, perhaps to work out some remaining details of the plea agreement or to insure that they had enough time to be certain.It would be incongruous for the Act to extend a defendant's time for trial 70 days when the defendant formally withdraws the plea but to require dismissal of the indictment when a defendant withdraws a tentative plea.

If we did not exclude from the 70-day computation the delay caused by Clarence's and Armstrong's change of mind, defendants seeking plea bargains would suffer.Courts would impose a strict deadline on accepting guilty pleas, ⁵ and defendants would have less time in which to make a decision.

We need comment only briefly on the second requirement of § 3161(h)(7)-that the period of delay is reasonable.The two-month period necessary for the court to conduct previously scheduled trials and for Clarence and Armstrong to obtain new co...