U.S. v. Dejohn
| Decision Date | 13 May 2004 |
| Docket Number | No. 02-3175.,No. 02-3158.,02-3158.,02-3175. |
| Citation | 368 F.3d 533 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony DeJOHN (02-3158); Christopher Harb (02-3175), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Ronald B. Bakeman (argued and briefed), Asst. U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee in 02-3158 and 02-3175.
Michael J. Benza (argued and briefed), for Cleveland, OH, for Defendant-Appellant in 02-3158.
Thomas J. Broschak (argued and briefed), Ulmer & Berne, Columbus, OH, for Defendant-Appellant in 02-3175.
Before: MARTIN, RYAN, and MOORE, Circuit Judges.
RYAN, J. (p. 548-49), delivered a separate concurring opinion.
Codefendants Christopher Harb and Anthony DeJohn appeal from their convictions and sentences for conspiracy to distribute cocaine, conspiracy to distribute marijuana, and unlawful use of a communication facility (Harb); and conspiracy to distribute marijuana, possession of marijuana with intent to distribute, unlawful use of a communication facility, and being a felon in possession of a firearm (DeJohn). They each raise numerous assignments of error, of which the two most novel and meritorious are a shared claim of Speedy Trial Act error and DeJohn's argument that a specific unanimity instruction was required for his felon-in-possession charge, which involved two different firearms. Nonetheless, because we ascertain no violation of the Speedy Trial Act and because we conclude that the specific firearm possessed by a felon is not an element of the crime defined by 18 U.S.C. § 922(g)(1) requiring jury unanimity, we AFFIRM the convictions and sentences of Harb and DeJohn.
In early 2000, the FBI began an investigation into a cocaine ring in Cleveland's eastern suburbs. After attempts to use undercover agents to pursue suppliers further up the distribution chain were unsuccessful, a wiretap investigation was pursued which culminated in a tap being placed on Alfred Laudato's ("Laudato") cellular telephone. Laudato was supplying numerous customers in the Cleveland area with cocaine and also with marijuana. Harb sold marijuana to and purchased cocaine from Laudato, while DeJohn purchased marijuana from Laudato. In June 2000, the FBI terminated the investigation, making numerous arrests and searching both Harb's and DeJohn's residences. At DeJohn's residence, drug distribution paraphernalia (plastic bags and a three-beam scale stored together) and eight separate bags of marijuana were found together in a duffel bag. Additionally, two firearms were found, a small handgun along with ammunition in a drawer underneath the couch in the family room, and a Remington 870 shotgun in a bedroom closet upstairs. At Harb's residence, numerous firearms were discovered, totaling three pistols and four rifles, as well as a bag of marijuana. Harb and DeJohn were both indicted with twenty-six other individuals on June 13, 2000, and then arrested as part of the raids on June 14, 2000.1 Two superseding indictments were filed, one on July 11, 2000, with additional codefendants, and a second superseding indictment on October 3, 2000, which named far fewer conspirators as so many had already pleaded guilty. Harb and DeJohn, however, ultimately refused to plead guilty, and were eventually the only defendants left. The government's motion to dismiss the indictment against them without prejudice was granted on November 13, 2000, and on December 28, 2000, they were reindicted; this later indictment was the first containing the firearms charges against DeJohn.
DeJohn and Harb proceeded to trial on the 34-count indictment on May 7, 2001. At trial, the government's chief witness was Laudato, who had agreed to testify against Harb and DeJohn as part of a plea bargain with the government. The government introduced as well numerous tapes and transcripts obtained through the wiretap on Laudato's phone. Most of the conversations involving drug purchases were in code or otherwise opaque; Laudato "decoded" the conversations for the jury. Both Harb and DeJohn testified in their own defenses. Harb claimed to have purchased cocaine only for personal use in small amounts from Laudato and asserted that his only involvement with marijuana distribution was storing marijuana for Laudato. DeJohn claimed to have purchased marijuana from Laudato only for personal use, despite phone calls entered into evidence, which DeJohn admitted referred to marijuana purchases, in which DeJohn describes "the guys" who want marijuana from him. Joint Appendix ("J.A.") at 628 30. DeJohn also presented testimony from relatives and friends in which they claimed ownership of the two guns found in DeJohn's residence. Each defendant was acquitted of certain charges by the jury, as well as convicted of conspiracy to distribute cocaine, conspiracy to distribute marijuana, and unlawful use of a communication facility (Harb); and conspiracy to distribute marijuana, possession of marijuana with intent to distribute, unlawful use of a communication facility, and being a felon in possession of a firearm (DeJohn).
At sentencing, Harb's total adjusted offense level was twenty-eight.2 The district court found his base offense level to be twenty-six based on drug quantities, and applied a two-level upward adjustment for obstruction of justice based on Harb's perjury at trial. The district court declined to make a downward adjustment for a mitigating role, noting that it had previously limited the government's case to the narrow conspiracies ultimately charged to the defendants. The district court denied an acceptance of responsibility adjustment and a downward departure based on family responsibilities. Harb was sentenced to seventy-eight months' imprisonment.
DeJohn's base offense level for the gun charges was assessed at twenty-four under U.S.S.G. § 2K2.1(a)(2), as he had two prior felony convictions for assault, a crime of violence. Because the firearms charge and the drug charges were unrelated to one another, he received a one-level increase in his offense level under § 3D1.4 for the drug charges. He also received a two-level enhancement for obstruction of justice based on his perjury at trial, making his total adjusted offense level twenty-seven. His criminal history was assessed at Category VI under § 4B1.1 for his two prior assault convictions, which increased both his offense level by ten and his Criminal History Category by three. The district court granted a downward departure because of this dual effect of his two prior assault convictions. The departure was three Criminal History Categories, down to his "original" Criminal History Category of III, i.e., without the Career Offender increase under § 4B1.1. This resulted in a sentencing range of 87 to 108 months; DeJohn was sentenced to 91 months' imprisonment. This timely appeal followed.
"We review the District Court's legal interpretation of the [Speedy Trial Act] de novo and the factual findings supporting its ruling for clear error." United States v. O'Dell, 154 F.3d 358, 360 (6th Cir.1998) (citing United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir.1994)), cert. denied, 526 U.S. 1029, 119 S.Ct. 1275, 143 L.Ed.2d 369 (1999).
The Speedy Trial Act ("Act") provides, "Any ... indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested." 18 U.S.C. § 3161(b). The Act contains two main time limits: the limit in § 3161(b) running from arrest or summons to indictment, and the seventy-day limit in § 3161(c) running from indictment to trial. The purpose of the former, the thirty-day limit at issue in this case, is to insure that individuals will not languish in jail or on bond without being formally indicted on particular charges. In this case, DeJohn and Harb were originally indicted before their arrest, and remained under indictment until November 13, 2000, when the indictment then in force against them was dismissed. No criminal complaint had been filed, and the terms and conditions for release on bail were terminated, leaving DeJohn and Harb without any restriction on their liberty after November 13, 2000, and before their reindictment. DeJohn and Harb were reindicted on December 28, 2000, forty-five countable days after the dismissal of the prior indictment. Their argument that the Act was violated because their reindictment happened too long after the dismissal of the previous indictment is based largely on United States v. Berry, 90 F.3d 148 (6th Cir.), cert. denied, 519 U.S. 999, 117 S.Ct. 497, 136 L.Ed.2d 389 (1996), in which this court, in dealing with an analogous situation where only one day passed between dismissal and reindictment, wrote, "When the original indictment was dismissed, the thirty-day period again continued to run; it did not begin anew." Id. at 151. Adding together the time that ran on the arrest-to-indictment clock initially (zero days) and that which ran after the dismissal of the original indictment (forty-five days), DeJohn and Harb argue that the thirty-day period expired, requiring the reversal of their convictions.
"The purpose of the thirty-day rule is to ensure that the defendant is not held under an arrest warrant for an excessive period without receiving formal notice of the charge against which he must prepare to defend himself." Berry, 90 F.3d at 151. The evil against which the Act is meant to protect is the extension of the period when the accused is under legal restraint but does not know the charges she will eventually face; where no legal restraint exists, the thirty-day limit is inapplicable. This is borne out by the text of the Act itself, as the remedy for a violation of the...
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