U.S. v. Dunbar

• Decision Date: 09 February 2004
• Docket Number: No. 02-1766.,02-1766.
• Citation: 357 F.3d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damon DUNBAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

357 F.3d 582

UNITED STATES of America, Plaintiff-Appellee, v. Damon DUNBAR, Defendant-Appellant.

No. 02-1766.

United States Court of Appeals, Sixth Circuit.

Argued: October 30, 2003.

Decided and Filed: February 9, 2004.

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Wayne F. Pratt (argued and briefed), Assistant United States Attorney, Detroit, Michigan, for Appellee.

Suzanna Kostovski (argued and briefed), Detroit, Michigan, for Appellant.

Before: MOORE and ROGERS, Circuit Judges; FORESTER, Chief District Judge.^*

OPINION

MOORE, Circuit Judge.

Defendant-Appellant, Damon Dunbar ("Dunbar"), appeals his conviction and sentence. Dunbar was convicted by jury of one count of distribution of cocaine base and two counts of distribution of heroin. The district court sentenced Dunbar to three concurrent 151-month terms of imprisonment. Dunbar raises two arguments on appeal. First, Dunbar argues that his conviction should be vacated and his indictment dismissed because the delay between his indictment and his trial violated the Speedy Trial Act. Second, if his conviction is upheld, Dunbar argues that his sentence should be vacated because the district court erred by including fifty-six grams of cocaine base in the calculation of his sentence based upon evidence that was not sufficiently reliable.

For the following reasons, we AFFIRM Dunbar's conviction and sentence.

I. BACKGROUND

A. Offense Conduct

An investigation by a task force comprised of federal, state, and local law enforcement officers led to Dunbar's arrest. The task force received a tip from a confidential informant ("CI") that Dunbar was engaging in illegal drug activity, which led the task force to investigate Dunbar's drug transactions. During the investigation, undercover agents made three controlled purchases. On May 19, 1999, Dunbar sold 12.1 grams of crack cocaine to an undercover DEA agent. At trial, the government produced evidence that Dunbar possessed additional crack cocaine during this transaction, and that a conservative estimate of this additional crack cocaine was two ounces. On June 8, 1999, Dunbar sold 1.1 grams of heroin to an undercover police officer. Then, on June 15, 1999, Dunbar sold twelve grams of heroin to an undercover police officer. Dunbar was arrested on November 3, 2000.

B. Speedy Trial Act Background

On October 26, 2000, a one-count criminal complaint was sworn in the Eastern District of Michigan, charging Dunbar with distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). The criminal complaint states that the offense occurred on or about June 15, 1999, and charges Dunbar for his conduct during the third controlled buy. On November 3, 2000, the complaint was unsealed, and Dunbar appeared before a magistrate judge; the magistrate judge denied Dunbar bond and ordered him detained. On November 9, 2000, a three-count indictment was returned against Dunbar in the Eastern District of Michigan. Count One of the indictment charges Dunbar with distribution of five grams or more of a mixture or substance containing cocaine base (crack cocaine) on or about May 19, 1999, in violation of § 841(a)(1), (b)(1)(B)(ii), and (b)(1)(B)(iii). Counts Two and Three of the indictment charge Dunbar with distribution of heroin, in violation of § 841(a)(1) and (b)(1)(C), on or about June 8, 1999, and on or about June 15, 1999, respectively.

On November 13, 2000, Dunbar made his initial appearance on the charges contained in the indictment and entered a plea of not guilty. Dunbar remained in detention following his plea. After Dunbar was arraigned, his retained counsel, Charles D. Lusby ("Lusby"), and the government signed an undated proposed order for a continuance, stipulating that a period from November 13, 2000 to January 5, 2001 would be excludable delay for purposes of the Speedy Trial Act. The proposed order indicates that the parties agreed to use this period to prepare pretrial motions and to prepare for trial, and it also indicates that the defendant was going to use this period to decide whether to plead guilty. The proposed order states that the parties stipulated that the ends-of-justice within the meaning of 18 U.S.C. § 3161(h)(8) would be served by the continuance due to the complexity of the case. As a result of clerical error by the parties, this order was never presented to the district court.

On November 30, 2000, a magistrate judge held a pretrial conference and entered a summary order, noting that the parties stipulated to extend the time for filing motions until January 5, 2001. This summary order was approved by the district judge.

Although it is not reflected at all on the district court's docket sheet, the parties agree that they appeared before a magistrate judge on March 14, 2001, regarding a potential conflict of interest issue involving Dunbar's retained counsel, Lusby. The potential conflict of interest issue arose during pretrial discussions between the government and Lusby about the possibility of a plea agreement. The government's plea offer was contingent upon the defendant providing "substantial assistance" in the form of information regarding other individuals. During these discussions, Lusby indicated that he might have a potential conflict of interest between Dunbar and his other clients, who might be the subject of Dunbar's assistance. The government and Lusby agreed that Dunbar should consider requesting appointed counsel for the purpose of advising Dunbar about the potential conflict of interest issue. In an appearance before a magistrate judge, on May 14, 2001, Dunbar requested more time to confer with Lusby before requesting appointed counsel. In another appearance before the magistrate judge, on May 15, 2001, Dunbar again failed to request appointed counsel, and the matter was adjourned so that the government could file a motion to resolve the potential conflict of interest issue. The government filed its motion on May 16, 2001. On May 22, 2001, Lusby filed a response to the government's motion to resolve the potential conflict of interest issue and also filed a motion to withdraw as Dunbar's counsel. On May 24, 2001, the district court granted Lusby's motion to withdraw as defense counsel; on May 25, 2001, the district court appointed the Federal Defender's Office to represent Dunbar, which mooted the government's motion to resolve the conflict of interest issue. Eventually, Timothy Murphy ("Murphy") was appointed by the Federal Defender's Office as Lusby's replacement.

On May 24, 2001, Dunbar personally made a motion to review his detention. On May 30, 2001, the district court held a hearing on Dunbar's motion to review his detention and also considered whether Dunbar's right to release under § 3164 of the Speedy Trial Act had been violated because Dunbar had been detained for more than ninety days and the docket sheet did not reflect any periods of excludable delay. The district court was unable to resolve the motion on May 30, 2001 and scheduled another hearing for June 4, 2001.

The dialogue between the parties and the court during the June 4, 2001 hearing is important because Dunbar's ability to obtain a dismissal of the indictment for a violation of his rights under § 3161 of Speedy Trial Act depends upon whether he made a motion to dismiss the indictment for violation of the seventy-day rule. At the outset, the parties and the court considered the purposes of the June 4, 2001 hearing to be determining whether § 3164 had been violated because Dunbar had been detained for more than ninety days and reviewing Dunbar's detention. After discussing whether Dunbar should be released pursuant to the ninety-day rule for § 3164, Dunbar's counsel raised the issue of whether the indictment should be dismissed pursuant to the seventy-day rule for § 3161. The following exchange took place between Dunbar's counsel and the Court:

MR. MURPHY [Dunbar's counsel]: There is an additional issue, though, and that is the speedy trial.

THE COURT: Okay.

MR. MURPHY: Because we have 79 days of nonexcludable delay by my computation.

THE COURT: Well, I think we're at, on the speedy trial clock, of 84 days.

MR. MURPHY: Well, I have 79, but that was I don't know since when. But, we have over 70, that's the issue.

And that, of course, gives rise to — well, under those circumstances, I would move to dismiss.

Now, I've advised Mr. Dunbar that the Government is very well — that the Court has discretion to dismiss with or without prejudice. Under these circumstances, I would make no prediction, but I would certainly share my opinions with Mr. Dunbar about which was more likely. And that if the Court chose to dismiss without prejudice, the Government would likely seek a delay to reindict so that would be an exercise in futility.

We haven't fully discussed that issue.

THE COURT: Okay.

J.A. at 65 (emphases added). The court then discussed whether various periods constituted excludable delay pursuant § 3161(h) of the Speedy Trial Act. J.A. at 70-79. The court found that up to that point, only eighty-four days of non-excludable delay had passed, therefore, the ninety-day pretrial detention rule of § 3164 had not been violated.

In reaching its conclusion that only eighty-four days of non-excludable delay had passed, the district court determined that the Speedy Trial clock began to run on November 9, 2000, the day that Dunbar was indicted, but that November 9, 2000 was excludable. The district court found that three non-excludable days had passed from November 10, 2000 through November 12, 2000. The district court then concluded that November 13, 2000, the day Dunbar was arraigned, was excludable. The district court excluded a thirty-day period in January and February 2001 for plea negotiations. The district court then concluded that March 14, 2001 through May 24, 2001 was excludable due to the potential conflict of interest issue. The district stopped counting the days as of May 24, 2001, but we...