U.S. v. Franklin
| Decision Date | 22 July 1998 |
| Docket Number | No. 97-30321,97-30321 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patrick FRANKLIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert William Piedrahita, Asst. U.S. Atty., Baton Rouge, LA, for Plaintiff-Appellee.
Jerry W. Lindig, Baton Rouge, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Louisiana.
Before WIENER, BARKSDALE and DeMOSS, Circuit Judges.
Defendant-Appellant Patrick Franklin appeals his convictions for distributing and conspiring to distribute cocaine and cocaine base (commonly known as crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) & 846 and 18 U.S.C. § 2. 1 Finding no reversible error in Franklin's trial or his sentencing, we affirm.
From 1992 to 1994, Franklin worked with John Milton, Burlin Harris, and Anthony Dozier, manufacturing and distributing crack cocaine out of a residence in Baton Rouge, Louisiana. Milton headed the operation, obtaining significant amounts of cocaine (in excess of several kilograms) from Houston, Texas, which he and the others converted to crack through a process known as "cooking." Franklin, acting under the direction of Harris, assisted in distributing crack out of the Baton Rouge residence.
The Drug Enforcement Administration ("DEA") enlisted the aid of a cooperating individual ("CI") to investigate the operation. The CI twice purchased crack from the drug-trafficking conspirators--once from Franklin (approximately 10 grams), and once from Dozier (approximately 10.3 grams). Law enforcement officials executed a search warrant for the residence, and various drug-trafficking paraphernalia was recovered, including: (1) a triple beam scale; (2) a digital scale; (3) a microwave oven containing crack residue; (4) canisters of procaine (a chemical commonly cut with cocaine for the purpose of stretching out the amount of crack produced); and (5) containers with secret compartments.
In a ten-count indictment dated March 19, 1996, Franklin and his codefendants were charged with violating 21 U.S.C. § 846 and 18 U.S.C. § 2 by conspiring to distribute, and to possess with intent to distribute, cocaine and cocaine base. Franklin was also charged, under counts four and five of the indictment, with specific acts of cocaine distribution in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Franklin made his initial appearance before the district court on April 2. On May 30 and June 20, respectively, Harris and Dozier pleaded guilty to the offenses with which each had been charged. Milton remained at large until August, making his initial appearance on August 15--134 days after Franklin's initial appearance. 2
On August 29, Milton filed motions requesting pretrial notice of the government's intent to use evidence of extrinsic acts and seeking to compel the government to disclose "impeaching information." The following day, the district court ordered the government to respond to these motions within ten days; i.e., on or before September 9. The government responded to Milton's request for impeaching information on September 19, and filed its notice of intent to use extrinsic acts evidence on September 23. That same day, Milton entered into a plea agreement with the government, and the next day the government filed a notice of Milton's intent to enter a guilty plea.
On September 30, the government filed a motion in limine, seeking to offer other-crimes evidence at Franklin's trial. The court accepted Milton's guilty plea on October 7. On October 18, the government filed a second motion in limine, seeking to offer evidence of Franklin's drug use during the course of the charged conspiracy. On October 23, the court entered an order deferring a hearing on the government's second motion in limine until trial, 3 and Franklin filed a motion to dismiss the charges against him on the ground that his statutory right to a speedy trial had been violated. The court heard and denied Franklin's speedy trial motion on November 1 and Franklin's trial commenced on November 4.
On November 6, a jury found Franklin guilty of all the offenses with which he had been charged. After he was sentenced to a 360-month term of imprisonment, Franklin timely appealed. He urges that because more than seventy non-excludable days elapsed from his initial appearance until his trial, the district court erred in denying his motion to dismiss the indictment for lack of a speedy trial. Franklin also contends that the district court erred in (1) allowing a witness to testify concerning Franklin's involvement in drug transactions that allegedly predate the drug-trafficking conspiracy charged in the indictment, (2) denying Franklin's motion for judgment of acquittal, finding that the evidence adduced at trial was sufficient to support his convictions, and (3) failing to sustain certain objections to the presentence report ("PSR").
A trial court's factual findings underlying its ruling on a Speedy Trial Act 4 ("the Act") motion are reviewed for clear error, and its legal conclusions are reviewed de novo. 5 Under the Act, the trial of a defendant must commence within seventy non-excludable days from the time an indictment has been filed or from the date of the defendant's initial appearance, whichever is later. 6 Excludable periods of delay are outlined in section 3161(h).
Section 3161(h)(7) ("subsection (h)(7)") provides for the exclusion from the seventy-day speedy trial period of a "reasonable period of delay when the defendant is joined for trial with a codefendant as to whom time for trial has not run and no motion for severance has been granted." 7 Under subsection (h)(7), the speedy trial clock does not begin to run in a multi-defendant prosecution until the last codefendant makes his initial appearance in court. 8 Also, the excludable delay of one codefendant may be attributable to all codefendants. 9 Thus, the excludable delay incurred as a result of one codefendant's motion practice applies to the speedy trial time computation of all codefendants. 10
Two hundred fifteen days elapsed between Franklin's initial appearance on April 2 and the commencement of his trial on November 4. This 215-day time span, however, contains several periods of excludable delay under section 3161(h). Franklin's speedy trial clock was tolled until Milton, his codefendant, made his initial appearance on August 15 (134 days). 11
Thirteen chargeable days passed before the clock was again tolled on August 29, when Milton filed his motions seeking extrinsic evidence notice and impeaching information. 12 As these motions did not require a hearing, and there is no evidence in the record that they occupied the court's attention following the government's responses, those responses constituted their "prompt disposition" under section 3161(h)(1)(F). 13 Although the government did not file its responses to both motions until September 23, the court had ordered the government to respond by September 9, and the government concedes that the speedy trial clock recommenced on the court-ordered response date.
Following September 9, twenty more chargeable days elapsed before the speedy trial clock was again tolled on September 30, when the government filed its motion in limine seeking to offer extrinsic-acts evidence at Franklin's trial. As the court deferred a hearing on this motion until trial, no additional speedy trial time expired before Franklin's trial began. Under the foregoing analysis, Franklin's speedy trial clock ran for only thirty-three days before his case was tried.
Franklin initially challenges the district court's ruling on his speedy trial motion on the ground that neither the government's nor Milton's motion practice produced excludable delays under section 3161(h)(1)(F). He claims that (1) the motions filed on Milton's behalf should not be afforded a tolling effect as they were merely pro forma discovery requests that did not invite the district court's intervention, and (2) as the government's motions seeking evidentiary rulings were deferred by the court until trial, they did not consume the court's attention, and their pendency should likewise produce no excludable delay.
Franklin's contentions are without merit. In support of his first position, he relies on a Sixth Circuit case which (a) dealt with discovery motions filed pursuant to FED.R.CRIM.P. 16, and (b) predicated its no-tolling finding on the fact that there was no evidence in the record that the district court ever ruled on the motions at issue. 14 It is clear in the instant case that the district court, having ordered the government to respond to Milton's motions, took those motions under advisement. In advancing his second position, Franklin relies on case law from another circuit, ignoring well-settled Fifth Circuit case law to the contrary. 15
Franklin next challenges the attribution of the Milton delays. He claims that the excludable delays associated with Milton's apprehension and prosecution cannot be attributed to him under subsection (h)(7), as those delays were unreasonable. As grounds for unreasonableness, Franklin observes that Milton filed his notice of intent to plead guilty only two days before the court set Franklin's trial date (September 24 and 26, respectively). The sequence of these events, submits Franklin, belies the notion that the government intended to join Milton for trial with Franklin. As the government never intended to try the two together, reasons Franklin, there is no justification for imputing the Milton delays to him for speedy trial purposes. Franklin concludes that the government's misleading pretrial posturing, coupled with the sheer length of his detention time (215 days), suffices to establish unreasonableness under subsection (h)(7).
Franklin's argument presents this court with its first opportunity to...
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