U.S. v. Harris

• Decision Date: 22 June 2007
• Docket Number: No. 05-3026.,05-3026.
• Citation: 491 F.3d 440
• Parties: UNITED STATES of America, Appellee v. Anthony HARRIS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

491 F.3d 440

UNITED STATES of America, Appellee v. Anthony HARRIS, Appellant.

No. 05-3026.

United States Court of Appeals, District of Columbia Circuit.

Argued November 6, 2006.

Decided June 22, 2007.

Appeals from the United States District Court for the District of Columbia (No. 04cr00157-01-02).

Matthew D. McGill and James W. Beane, Jr., appointed by the court, argued the causes for appellants. With them on the briefs was Miguel A. Estrada.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III and Martin D. Carpenter, Assistant U.S. Attorneys. Thomas J. Tourish, Jr., Assistant U.S. Attorney, entered an appearance.

Before: GARLAND and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

Opinion dissenting in part filed by Senior Circuit Judge WILLIAMS.

BROWN, Circuit Judge:

This case arises from a peculiar example of urban entrepreneurship — the drive-by drug bazaar. The essential components of these enterprises include a wholesaler with an appreciable stash of drugs (the "bagman"), one or more retail clerks to handle individual transactions ("runners"), and a handy supply of customers who wait in vehicles, engines idling, while the merchandise is delivered. At about 2:30 A.M. on March 3, 2004, Metropolitan police officers noticed (as one would later testify) "a long line of cars that appeared to be getting served by hand-to-hand transactions ... like a drive-through." Trial Tr. 79, Oct. 13, 2004. One man "was standing on the curbside" while two others "were flagging down and running up to cars" bringing what appeared to be currency from the cars to the bagman and clear plastic bags from the bagman to the cars. Id. at 108. The police moved in for the bust. One of the two runners, Anthony Harris, promptly surrendered. The other, Antonio Roundtree, led police on a quarter-mile chase and then "gave up.... [H]e said he was too tired and couldn't run no more." Id. at 84. The bagman ran and escaped. A search of Roundtree and Harris yielded neither drugs nor money, but where the bagman had been standing, officers found tucked behind a street sign a plastic bag containing 37.6 grams of crack cocaine in 101 small baggies. Roundtree and Harris were arrested; by the end of March, they were indicted for possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). The two pled not guilty, went to trial on October 13, and were convicted on October 18.

On appeal, Harris and Roundtree present one individual claim each and share two claims in common. Harris argues his trial counsel was ineffective for failing to raise a Speedy Trial Act claim. Roundtree argues the district court committed reversible error by curtailing testimony from favorable witnesses. Both defendants claim the trial judge's ex parte contact with the deliberating jury prejudiced the verdict. And both defendants protest an approach to aiding and abetting that makes them liable for the quantity of five grams or more of crack cocaine. Finding that the district court did not violate the Speedy Trial Act, abuse its discretion in circumscribing direct examination, substantially and injuriously influence the jury's verdict through its ex parte contact, or err in its approach to aiding and abetting, we affirm the judgment of the district court.

I

We begin in the pretrial period with Anthony Harris's ineffective assistance of counsel claim. About six months went by between indictment and trial in this case. During that time, Antonio Roundtree was released on bail, while Anthony Harris, a young man with what the district court called a "ridiculous" criminal history (including fifteen convictions, among them contempt, escape, and violation of the Bail Act, and about twice as many arrests), was held as a flight risk. Sentencing Hr'g Tr. 26, Feb. 18, 2005. Arguing his lengthy pretrial detention violated the Speedy Trial Act, which requires that a criminal trial "shall commence within seventy days from the filing date ... of the information or indictment" barring periods of excludable delay, 18 U.S.C. § 3161(c)(1), Harris claims his trial counsel was constitutionally deficient for not saying so, and that but for this deficiency, a timely motion would have led to his release.

An ineffective assistance of counsel claim, according to the Strickland v. Washington two-prong test, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires determining, first, on a "highly deferential" standard of review and with great regard for counsel's "strategic choices," whether counsel's performance was so deficient as to fall "below an objective standard of reasonableness" and deprive defendant of the "`counsel' guaranteed ... by the Sixth Amendment," and, second, whether counsel's deficient performance was prejudicial, i.e., whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-94, 104 S.Ct. 2052. This test is fact-intensive, and the facts at issue are often orthogonal to those explored at trial. Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) ("The evidence introduced at trial ... will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis."). Thus where a defendant asserts an ineffective assistance of counsel claim for the first time on direct appeal, as Harris does, "this court's general practice is to remand the claim for an evidentiary hearing unless the trial record alone conclusively shows that the defendant either is or is not entitled to relief." United States v. Rashad, 331 F.3d 908, 909-10 (D.C.Cir.2003) (internal quotation marks omitted); see also United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C.Cir. 1995) (same). We do not reflexively remand. Rather, we interrogate the trial record according to Strickland's familiar two prongs, remanding for an evidentiary hearing if the record is anything less than conclusive on a relevant matter of fact. Here, both sides claim the record is conclusive in their favor and, in the alternative, call for a remand.

We begin with the threshold legal question of whether the delay between Harris's indictment and trial violated the Speedy Trial Act at all, for it is difficult to see how counsel could be deficient for failing to protect speedy trial rights that were never infringed, and very difficult to see how a defendant could be prejudiced by the omission of a meritless motion. Harris was indicted on March 30, 2004; his trial began on October 13. Between those two dates, there is no dispute that pending motions tolled the Speedy Trial Act clock from May 10 through August 5 (when the court held a hearing and disposed of some motions) and September 30 through October 13 (when trial began). See 18 U.S.C. § 3161(h)(1)(F) (excluding "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion"). This leaves ninety-six days either untolled or disputed.¹ The dispute centers on a document the government filed on May 10, entitled "Government's Notice of Intent To Impeach Defendant [Harris] with His Prior Convictions Pursuant to Fed.R.Evid. 609."

The first issue is whether to regard this document as itself a pretrial motion tolling the speedy trial clock. This is easily resolved: Federal Rule of Criminal Procedure 12(b) (along with Rule 47) governs pretrial motions. Rule 12(b)(4)(A) creates a category fitted out for the document at issue here: "[T]he government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C)." Rule 12(b)(3)(C) concerns "motion[s] to suppress evidence." Thus the government's notice was not a motion, but Harris's response "request[ing] that the Court preclude the admission of the above mentioned evidence at trial" was one, and it tolled the clock (or would have, were the clock not already tolled) from the date of its filing on May 12. See also Melendez v. United States, 518 U.S. 120, 126, 116 S.Ct. 2057, 135 L.Ed.2d 427 (1996) ("[T]he term `motion' generally means `[a]n application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favor of the applicant.'" (second alteration in original) (quoting BLACK'S LAW DICTIONARY 1013 (6th ed.1990))).

The more difficult question is when the clock started ticking again. At the August 5 hearing, which the court had scheduled at the outset (and then rescheduled) to hear pretrial motions, the district judge took up the Rule 609 issue and expressly stated his intention to rule on it. But the motion was lost in the shuffle that day and, since Harris did not take the stand, never revisited. The government thus characterizes the unresolved motion after the hearing as "under advisement," which alludes to another exclusion on the Speedy Trial Act's list, this one for "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." 18 U.S.C. § 3161(h)(1)(J). In effect, the government reads subsections (F) and (J) together such that, when pretrial motions are filed and a hearing on them held, a first period from filing to hearing is excluded under (F), and then a second period extending not longer than thirty days from the conclusion of the hearing to the resolution of the motions is excluded under (J).² Harris counters that the excludable period for a pretrial motion ends simply "with the conclusion of...