U.S. v. Eakes

• Decision Date: 19 February 1986
• Docket Number: No. 85-3259,85-3259
• Parties: 20 Fed. R. Evid. Serv. 140 UNITED STATES of America, Plaintiff-Appellee, v. James Edward EAKES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 499

783 F.2d 499

20 Fed. R. Evid. Serv. 140

UNITED STATES of America, Plaintiff-Appellee, v. James Edward EAKES, Defendant-Appellant.

No. 85-3259.

United States Court of Appeals, Fifth Circuit.

Feb. 19, 1986.

Neil C. McCabe, Houston, Texas, T. Gerald Treece, Houston, Tex., for defendant-appellant.

John P. Volz, U.S. Atty., Warren L. Montgomery, Asst. U.S. Atty., Harry W. McSherry, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, TATE, and DAVIS, Circuit Judges.

CLARK, Chief Judge:

Appellant James Eakes challenges his convictions for conspiracy to import cocaine, conspiracy to possess with intent to distribute cocaine, and the corresponding substantive crimes. We affirm on all issues except Eakes' contention that the judgment erroneously recites convictions for two charges that were not in the indictment. We remand on this issue with directions for the entry of a new judgment that corresponds with the indictment and convictions.

I

Claude Griffin and Fernando Lopez hired James Eakes and Robert Ross to transport cocaine from Columbia into the United States. Eakes and Ross hired Billy Joe Nichols to pilot the aircraft transporting the cocaine. Nichols piloted the plane that brought shipments of cocaine into the United States in July, 1982, and in August, 1982.

Griffin, Eakes, and Ross had a falling out over money after the second shipment. Griffin made independent arrangements with Nichols for the transportation of a third shipment in September, 1982. Nichols was not able to transport this shipment because his aircraft developed mechanical problems. Griffin then made arrangements with Eakes and Ross for transportation of the third load.

Eakes and Ross contrived and executed a complex plan to deceive the other co-conspirators, and to steal and distribute the third load of cocaine themselves. Griffin and Lopez made plans for a fourth shipment, which they never attempted.

Nichols was convicted of conspiracy to import cocaine and to possess with intent to distribute cocaine on the basis of the unattempted plan to smuggle a fourth load of cocaine into the United States. Nichols was then charged with both conspiracy and the corresponding substantive crimes in three separate indictments. The three cocaine shipments that actually reached the United States formed the basis for the three separate indictments. Likewise, Eakes was charged with conspiracy and with the corresponding substantive crimes in three separate indictments based on the three shipments that entered the United States.

On appeal of the denial of Nichols' motion to dismiss his indictments as violative of the double jeopardy clause, a panel of this court held that Nichols had "participated in a single conspiracy to commit multiple violations of the drug control law." United States v. Nichols, 741 F.2d 767, 772 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985). The district court then granted Nichols' motion to consolidate the three indictments.

The resulting superseding indictment was filed on November 29, 1984. It named Nichols and Eakes as co-defendants. It charged Eakes with one count of conspiracy to import cocaine, one count of conspiracy to possess with intent to distribute cocaine, three counts of importation of cocaine, and three counts of possession with intent to distribute cocaine. The indictment charged Nichols with the six counts that corresponded to the substantive crimes.

Eakes and Nichols were arraigned on the superseding indictment on December 6, 1984, the same day for which their trial was originally set. The presiding judge interpreted the Speedy Trial Act (the Act) to require a thirty-day continuance from the date of the defendants' arraignment on the superseding indictment. Both Eakes and Nichols expressly refused to waive this right. After conferring with all attorneys on their upcoming schedules, the judge reset the trial for January 28, 1985. On January 22, 1985, Eakes filed a motion to dismiss the superseding indictment for failure to grant a speedy trial. The district court denied that motion at the pretrial hearing on the date of trial.

At trial, Eakes testified in his own defense. He claimed that he acted in the smuggling operation as a government informant. A jury convicted him on all eight counts of the indictment. He received a twelve-year sentence on each count. The sentences were to run concurrently.

On appeal, Eakes makes six arguments: (1) the trial court's continuance of the trial until January 28, 1985, violated his statutory right to a speedy trial; (2) the government failed to prove beyond a reasonable doubt that the substance Eakes and Nichols imported was cocaine; (3) the trial court's refusal to admit into evidence a taped telephone conversation between Ross and Drug Enforcement Administration (DEA) agent Howard Whitworth constituted reversible error; (4) the trial court's refusal to admit a tape of a conversation between Eakes and DEA agent Michael Hurley constituted reversible error; (5) the trial court's admission of photographs of cocaine and of an automobile seized by the police was reversible error; and (6) the judgment erroneously recites convictions for aiding and abetting, and for conspiracy to distribute cocaine.

II

Eakes asserts that the delay of his trial until January 28, 1985, violated his rights under the Speedy Trial Act. That Act provides that a defendant's trial must begin "within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. Sec. 3161(c)(1). "Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se." 18 U.S.C. Sec. 3161(c)(2). The Act also defines certain "periods of delay" which are not included "in computing the time within which the trial of any such offense must commence." See 18 U.S.C. Sec. 3161(h).

Relying on the language of the Act and its legislative history, the United States Supreme Court recently held that the Act does not mandate the commencement of a new thirty-day trial preparation period upon a defendant's arraignment on a superseding indictment. United States v. Rojas-Contreras, --- U.S. ----, 106 S.Ct. 555, 556, 88 L.Ed.2d 537 (1985), reversing 730 F.2d 771 (9th Cir.1984). Due to a typographical error, the original indictment against that defendant mistated the date of a previous conviction on which the enhancement of the charged offense was based. The superseding indictment corrected that reference. The defendant claimed entitlement to a thirty-day continuance of his trial under Sec. 3161(c)(2) of the Speedy Trial Act. Id. at ---- - ----, 106 S.Ct. at 556-57.

In rejecting this claim, the Supreme Court stated that "a defendant must [not] always be compelled to go to trial less than 30 days after the filing of such an indictment." Id. at ----, 106 S.Ct. at 558. The district judge still has a broad discretion to grant a continuance if "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." Id. (quoting 18 U.S.C. Sec. 3161(h)(8)). The "ends of justice" provision authorizes a continuance in cases where a superseding indictment prejudices a defendant. Id. at ---- - ----, 106 S.Ct. at 558.

Eakes claims that the trial court erroneously continued his trial for thirty days on its own motion. ¹ That additional thirty days was not a properly excludable period under the Act. As a result, he says, the seventy days during which the Act mandated the trial must commence expired before the trial took place. Thus, Eakes claims, his right to a speedy trial was violated.

Eakes also makes the following two alternative arguments. First: On November 15, 1984, the trial court correctly determined that twenty-three days remained in his initial thirty-day preparation period. Between that date and Eakes' arraignment on the superseding indictment on December 6, 1984, six non-excludable days elapsed. Even if the Act required a new excludable thirty-day waiting period upon his arraignment on the superseding indictment, that new period should have run concurrently with the days remaining in the original preparation period. Seventeen days remained in that first preparation period. The second period, and the time during which Eakes' trial had to commence, expired on January 5, 1985.

Second: Even if the additional thirty-day continuance was proper, excludable, and not required to run concurrently with the original preparation period, the trial court miscalculated the number of days remaining in the first period. The court allowed for twenty-three additional days when only seventeen remained. The time for commencement of Eakes' trial thus expired on January 22, 1985.

None of Eakes' arguments are tenable under the facts and circumstances present here. At the arraignment on the superseding indictment, the presiding judge noted that the superseding indictment represented a "housekeeping maneuver" which did not contain any new substantive charges against Nichols and Eakes. He stated that he interpreted the Act to entitle the defendants to a thirty-day waiting period between the time of their first appearance on the superseding indictment and the commencement of trial, absent their waiver of this right. He then asked Eakes' attorney if Eakes was prepared to waive this right and to proceed with the trial that morning as scheduled. Eakes' attorney answered negatively. Nichols' attorney also responded negatively to the same question. In light of these responses, the judge stated that since both defendants wished to...