U.S. v. Jackson

• Decision Date: 18 April 1995
• Docket Number: No. 94-10490,94-10490
• Citation: 50 F.3d 1335
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1335

50 F.3d 1335

UNITED STATES of America, Plaintiff-Appellee, v. Donald JACKSON, Defendant-Appellant.

No. 94-10490.

United States Court of Appeals Fifth Circuit.

April 18, 1995.

F.R. Mickelsen, Jr., Asst. Federal Public Defender, Ira A. Kirkendoll, Federal Public Defender, Dallas, TX, for appellant.

Michael R. Snipes, Asst. U.S. Atty., Paul E. Coggins, U.S. Atty., Dallas, TX, for appellee.

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

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Donald Jackson appeals his convictions for assault with intent to steal money and property of the United States, and for using and carrying a firearm during a crime of violence, claiming that, because new counsel was appointed for him between his first and second trials, that counsel was entitled, under Sec. 3161(c)(2) of the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(2) (generally, trial not to "commence less than thirty days from the date on which the defendant first appears through counsel"), to have 30 days to prepare for the second trial, which instead commenced 12 days after counsel was appointed, with only seven days notice of the setting, and despite Jackson seeking a continuance to obtain an expert witness on eyewitness identification. He contends also that a peremptory strike was on the basis of economic status, and, therefore, violated the equal protection component of the Fifth Amendment's due process clause. We AFFIRM.

I.

On October 15, 1993, at approximately 5:30 p.m., the Mailroom Express, a contract station of the United States Postal Service in Dallas, Texas, was robbed at gunpoint. Daryl Sprout, the manager, testified that the robber leapt over the counter, ordered him to fill a white plastic bag with money from the cash registers, and then ordered him to lie on the floor. Sprout told the robber he should run. Sue Hayes, a customer who walked in during the robbery, testified that the robber ordered her to the floor and threatened to kill her.

The robber then jumped back over the counter, and ran out of the station. Sprout got up, went over the counter, looked out the door, and saw a man, whom he identified later as Jackson, in the passenger seat of a car that had just pulled out of a parking space in front of the station. Sprout noted the license plate number; and police traced the vehicle to Glenn Brager, Jackson's half-brother.

Brager testified that, on the day of the robbery, he loaned his car to Jackson between 4:00 and 4:30 p.m., so that Jackson could pick up money that was being wired to him at the station; that Jackson returned with the car shortly thereafter; that, about an hour later, Jackson asked to borrow the car again; and that, instead of letting Jackson use his car, he drove Jackson to the station around 5:00 or 5:30 p.m. Brager testified that, when they arrived at the Mailroom Express, Jackson got out of the car and returned a few minutes later. Brager did not see Jackson carrying a gun, money, or a white plastic bag, and testified that Jackson did not seem anxious or nervous. (But see note 9, infra, concerning Jackson then telling Brager about Jackson's "confrontation" in the station.)

A postal inspector testified that, on October 25 (ten days after the robbery), Jackson gave a sworn statement in which he denied committing the robbery and stated that, although he and Brager went to the Mailroom Express two or three times on October 15 (the day of the robbery), they were at a barber shop from 4:30 until 7:30 p.m.

On October 22 and 28, Sprout and Hayes, respectively, were shown photographs of six individuals, including Jackson; each identified Jackson as the robber. And, both identified Jackson in court. Moreover, each testified that they were positive that Jackson was the robber: Sprout testified that he had a clear view of the robber's face on three separate occasions--(1) when the robber pointed the gun at him, (2) when he told the robber that he should run, after putting the money from the cash registers into the bag, and (3) when the robber was in the getaway car; and Hayes testified that she got a good look at the robber from a distance of two and one-half to three feet, and that she would never forget his face.

Jackson's first trial ended in a mistrial when the jury was unable to reach a verdict. The district court granted Jackson's retained counsel's motion to withdraw; appointed new counsel; set trial, on seven days notice, to commence 22 days after the first ended; and denied a continuance.

At his second trial, Jackson was convicted for assault with a handgun with the intent to steal money and property of the United States, in violation of 18 U.S.C. Sec. 2114, and for using and carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. Sec. 924(c). ¹ Jackson was sentenced, inter alia, to 322 months imprisonment--262 months for assault, 60 for the firearm count.

II.

Jackson contends that the district court erred by denying his request for a continuance to allow appointed counsel at least 30 days to prepare for the second trial, pursuant to the Speedy Trial Act; and by permitting the Government to use a peremptory challenge to exclude a potential juror on the basis of economic status, in violation of the equal protection component of the Fifth Amendment's due process clause.

A.

Jackson was indicted on November 18, 1993, and made his first appearance with retained counsel on November 30. Retained counsel represented him at his first trial, which commenced on February 7, 1994, and ended in a mistrial on February 9. After Jackson's retained counsel moved to withdraw on February 17, because Jackson was unable to pay for representation at a second trial, Jackson moved to proceed in forma pauperis and for appointment of counsel.

On February 18, the magistrate judge appointed the Federal Public Defender to represent Jackson. And, five days later, on February 23, the district judge (who presided also at the first trial) set trial for March 2. On February 25, Jackson moved for a continuance, based on the need to acquire a parole revocation hearing transcript, which allegedly contained statements by Sprout that were favorable to the defense on identification, and to procure the testimony of an expert witness, Dr. Malpass from El Paso, Texas, on the reliability of eyewitness identification. ² Jackson did not cite or refer to the Speedy Trial Act.

On March 1 (the day before trial), Jackson filed an amended motion, seeking a continuance pursuant to the Speedy Trial Act. Attached to the motion was a letter from Dr. Malpass, in which he stated that he was willing to testify for Jackson, but could not do so on such short notice; and that he could offer information to the jury that would assist it in overcoming widely held misconceptions in areas of eyewitness identification, such as cross-racial face recognition and identification, the effects of the presence of a weapon, the effects of previous viewing of a face, and the relationship between a witness' confidence in an identification and its accuracy. In the alternative, Jackson requested that Dr. Malpass be subpoenaed. That same day, the court, without ruling on the continuance, granted the subpoena request.

Jackson's second trial began on March 2. Before jury selection, his counsel advised the court that he had spoken with Dr. Malpass and had told him that service of a subpoena would be attempted; and that Dr. Malpass indicated that he would be unable and unwilling to give expert testimony because he had not had sufficient time to prepare. The district court denied Jackson's continuance motion, stating that mistaken identification was "a somewhat charitable description of the defense", and that it had issued the Malpass subpoena "out of an abundance of caution".

1.

Jackson contends that the district court's denial of a continuance and decision to retry the case on seven days' notice violated Sec. 3161(c)(2) of the Speedy Trial Act, which provides:

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 facts underlying a ruling involving the Speedy Trial Act are reviewed for clear error, and the legal conclusions of the court are reviewed de novo." United States v. Storm, 36 F.3d 1289, 1292 (5th Cir.1994). Although his retained counsel had more than 30 days to prepare before the first trial, Jackson, relying on our court's recent decision in Storm, contends that Sec. 3161(c)(2) entitled him to a new 30-day period after new counsel was appointed for the second trial.

Jackson's reliance on Storm is misplaced. Storm and a co-defendant, both represented by the same counsel, first appeared before the district court on February 12, 1993, at which time trial was set for March 15, and a hearing for February 19, to determine whether counsel could represent both defendants. Storm, 36 F.3d at 1292. At the February 19 hearing, the court determined that counsel could not represent both defendants, and appointed the Federal Public Defender to represent Storm; Storm appeared that same day with his new counsel. Id. Our court held that Storm was tried in violation of Sec. 3161(c)(2), because his first appearance with counsel was on February 19, less than 30 days before trial commenced on March 15. Id. at 1293. But, as discussed in part II.A.2. infra, it held also that Storm was not prejudiced by the violation. Id. at 1294.

Storm's holding that Sec. 3161(c)(2) was violated is based on the particular facts and circumstances of that case, which are not remotely similar to those here. ³ As quoted in note 3, supra, our court noted in Storm that, even assuming Storm's first appearance with counsel was...