U.S. v. Derose

• Decision Date: 14 February 1996
• Docket Number: No. 94-8730,94-8730
• Citation: 74 F.3d 1177
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald DEROSE, Roberta Ould, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1177

74 F.3d 1177

UNITED STATES of America, Plaintiff-Appellee, v. Donald DEROSE, Roberta Ould, Defendants-Appellants.

No. 94-8730.

United States Court of Appeals Eleventh Circuit.

Feb. 14, 1996.

Alan J. Baverman, Atlanta, GA, for Derose.

Gregory S. Smith, Federal Defender Program, Inc., Atlanta, GA, for Ould.

Robert F. Schroeder, Amy Levin Weil, Asst. U.S. Attys., U.S. Attorney's Office, Atlanta, GA, for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before HATCHETT and CARNES, Circuit Judges, and OWENS ^*, Senior District Judge.

HATCHETT, Circuit Judge:

A jury in the Northern District of Georgia convicted appellants, Roberta Ould and Donald Derose, of one count of possession with intent to distribute marijuana. On appeal, appellants argue that the Speedy Trial Act and the Sixth Amendment barred their prosecution; they also challenge the sufficiency of the evidence that supports their convictions. We reverse.

FACTS

Ould and Derose's indictment and conviction stem from a reverse sting operation DEA Agent Frank Smith conducted while acting in an undercover capacity. Agent Smith utilized a confidential informant who, at Smith's direction, advised individuals in the community that she knew of someone who wanted to sell marijuana. Ould subsequently contacted the confidential informant and informed her that she had located a buyer who wanted to purchase marijuana. Ould and the confidential informant made arrangements for the buyer, Derose, to meet Agent Smith at the Atlanta, Georgia, home of Ould's mother.

Ould, Agent Smith and the confidential informant met at Ould's mother's home on July 23, 1991. Agent Smith informed Ould that, due to safety considerations, he did not Agent Smith informed Ould and Derose that the marijuana was located in a vehicle in a nearby parking lot and that once they arrived at the parking lot, he would give them the key to the vehicle so they could use the vehicle to transport the marijuana to Ould's mother's house. Agent Smith also stated that once the transfer of marijuana was completed, he would return to Ould's mother's house to retrieve the vehicle. Agent Smith and the confidential informant left Ould's mother's house in the agent's vehicle, and Ould and Derose followed them in another vehicle to a MARTA station parking lot. In the parking lot, Agent Smith again asked Derose if he could see the money for the marijuana, and Derose showed him a paper bag that Agent Smith believed contained approximately $70,000 to $80,000. After showing Agent Smith the money, Derose exited the vehicle, and stated that the paper bag contained $70,000 and that he had given Ould $5,000.

have the marijuana with him, but had stored it at a nearby location. Derose then entered the kitchen where the parties were located, and Ould introduced Agent Smith to Derose. Derose and Agent Smith left the kitchen and continued their conversation in the garage where Derose asked Agent Smith whether he had the marijuana with him. Agent Smith again replied that he had stored the marijuana at a nearby location. When Agent Smith asked Derose if he had the money for the marijuana, Derose showed Agent Smith a paper bag containing a large quantity of money. Ould then entered the garage and the parties began a discussion about the transfer of the marijuana.

Agent Smith then handed Derose the key to the rear compartment of a Ford Bronco containing the marijuana and informed Derose that he could inspect the marijuana to see if he liked it. Agent Smith also told Derose that if he did not like the marijuana, he would give Derose a "couple of bucks" so that he could head back up the road. Derose walked over to the Bronco, opened the rear window, and inspected the packages of marijuana. After Derose completed the inspection of the marijuana, he took the key out of the lock and walked away. Agent Smith then gave the arrest signal to previously positioned law enforcement officers who arrested Derose in the parking lot and Ould in the vehicle. A search of Ould and Derose's vehicle produced a paper bag containing $70,000 and an additional $5,000 in the glove compartment. Law enforcement officials videotaped the transaction in the parking lot.

PROCEDURAL HISTORY

On July 23, 1991, the day of the arrest, the government filed a criminal complaint charging Derose and Ould in connection with their unsuccessful attempt to procure marijuana. On July 25, 1991, a magistrate judge conducted a probable cause hearing, found probable cause, but released Derose and Ould on bond subject to pretrial supervision. One year and four days after the arrest, on July 27, 1992, the government filed a motion to dismiss the complaint. The magistrate judge entered an order dismissing the complaint on July 30, 1992. On May 19, 1993, the government obtained an indictment charging Ould and Derose with one count of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 846, and one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841.

In June 1993, Derose and Ould filed a motion to dismiss the indictment asserting that although the magistrate judge did not specify whether the dismissal of the original complaint was with prejudice, the dismissal should have been entered with prejudice based on a violation of the Speedy Trial Act, 18 U.S.C.A. Sec. 3161 et seq. (West 1985), and the Due Process Clause of the Fifth Amendment. Derose and Ould also asserted that the indictment should be dismissed for violating the Sixth Amendment's guarantee of a speedy trial. Following a hearing, the magistrate judge recommended that the complaint be dismissed with prejudice. The magistrate judge noted that the one-year delay between the probable cause hearing and the dismissal of the complaint was attributable to the "gross negligence" of the assistant United States attorney assigned to the case. The magistrate judge did not recommend, however, that the entire indictment be dismissed; rather, the magistrate judge recommended The district court overruled Ould and Derose's objections and adopted the magistrate judge's report and recommendation. The district court agreed with the magistrate judge's conclusion that the original indictment contained only a conspiracy charge, and that the gilding exception did not apply because the substantive and conspiracy charges contained separate elements. The district court also found that the Sixth Amendment right to a speedy trial was not implicated in this case because Derose and Ould were not accused of the substantive offense until the indictment was handed down, and because the length of time between the indictment and the trial--eight months--did not trigger a Sixth Amendment inquiry. Alternatively, the district court rejected the Sixth Amendment claim on the merits.

that only the charge contained in the dismissed complaint--the conspiracy charge--should be dismissed and that the defendants should stand trial on the substantive possession count. The magistrate judge also rejected Derose and Ould's argument that the substantive count contained in the indictment should also be dismissed because it merely "gilded" the conspiracy count on the grounds that the substantive and conspiracy charges were distinct offenses. Lastly, the magistrate judge, relying on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), rejected the appellants' Sixth Amendment claim on the merits. The magistrate judge found that the length of delay, reason for the delay, and the defendant's assertion of the right each weighed slightly in Derose and Ould's favor, but concluded that they had not demonstrated prejudice as a result of the government's delay in prosecuting them. The magistrate judge reasoned that no prejudice existed because the reliability of the evidence consisting of Agent Smith's eyewitness testimony and audio and videotapes had not been eroded. Derose and Ould filed objections to the magistrate judge's report and recommendation that the substantive count should not be dismissed.

On January 13, 1994, Ould and Derose's trial commenced in the United States District Court for the Northern District of Georgia. The jury returned a guilty verdict as to the sole remaining count of the indictment, possession with intent to distribute marijuana, on January 19, 1994. The district court sentenced Ould to eighteen months in prison and a three-year term of supervised release. Derose received a twenty-four month prison sentence and a three-year term of supervised release. The district court also ordered him to pay a fine of $4,000.

ISSUES

The issues are: (1) whether the indictment should have been dismissed as a violation of the Speedy Trial Act because the complaint contained the substantive charge; (2) whether the lower court erred in rejecting appellants' Sixth Amendment claim; and (3) whether the evidence was sufficient to support appellants' convictions.

CONTENTIONS

First, Ould and Derose contend that the initial complaint also contained the substantive possession charge because the complaint cited the substantive statute, 21 U.S.C. Sec. 841(a)(1), and, as required, tracked its statutory language on the complaint form. Alternatively, they argue that this court should adopt the reasoning of United States v. Nixon, 634 F.2d 306 (5th Cir.1981), and recognize a "gilding" exception to the general rule that the Speedy Trial Act requires only the dismissal of a charge contained in a dismissed complaint. Second, Ould and Derose contend that the substantive count "gilded" the conspiracy count.

Next, Ould and Derose contend that the Sixth Amendment's speedy trial limitations apply to preindictment delay once a defendant has been accused. They assert that the date of their arrest constitutes the starting point for the Sixth Amendment inquiry and that the Sixth Amendment applies to all charges resulting from their alleged...