U.S. v. Jennings

• Decision Date: 08 May 1996
• Docket Number: 95-3318,Nos. 95-3317,s. 95-3317
• Citation: 83 F.3d 145
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl JENNINGS (95-3317); John Stepp (95-3318), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 145

83 F.3d 145

UNITED STATES of America, Plaintiff-Appellee, v. Carl JENNINGS (95-3317); John Stepp (95-3318), Defendants-Appellants.

Nos. 95-3317, 95-3318.

United States Court of Appeals, Sixth Circuit.

Argued March 25, 1996.

Decided May 8, 1996.

ON APPEAL from the United States District Court for the Southern District of Ohio; George C. Smith, Judge.

Vicki S. Marani (argued and briefed), Dept. of Justice, Crim. Div. Appellate Section, Washington, DC, for U.S.

Barry W. Wilford (argued and briefed), Columbus, Oh, for Carl Jennings.

Dennis C. Belli (argued and briefed), Columbus, OH, for John Stepp.

Before: KENNEDY and MOORE, Circuit Judges; WELLS, ^* District Judge.

KENNEDY, Circuit Judge.

Defendants appeal their convictions and sentences which followed indictments charging a conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 (count one), possession of over one hundred grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (count two), and endangerment of human life while manufacturing methamphetamine, in violation of 21 U.S.C. § 858 (count four). ¹ Defendants raise six arguments on appeal: one concerns the District Court's denial of defendants' motions for substitution of counsel and the other five concern sentencing issues. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for proceedings pursuant to instructions.

I.

Soon after midnight, in the early hours of September 6, 1989, federal law enforcement agents (from the Drug Enforcement Agency, or "DEA") converged on the home of Luanne Dennis in Columbus, Ohio, where they found a crude but operational methamphetamine production lab. ² The agents had been closely monitoring the activities of defendants Jennings and Stepp with the assistance of government informant, Robert Green. In fact, it was Green who, with DEA approval, supplied the defendants with red phosphorus and ephedrine, ingredients essential to the manufacture of methamphetamine.

DEA officers found methamphetamine ingredients, the necessary apparatus for methamphetamine production, and a three-quart Crockpot of heated red liquid, a substance from which methamphetamine is extracted. They arrested defendants and turned off the Crockpot but the DEA forensic chemist did not take samples of Crockpot contents until several hours later.

Because of the delay in acquiring samples from the Crockpot, any estimate as to what percentage of the brew was methamphetamine at the moment of arrest would have to be approximate. Nevertheless, the government offered expert testimony to establish that some methamphetamine had in fact been produced by the time of the DEA raid, a finding with which the defense expert agreed. (The production process generally takes about twelve hours and the chemicals had been "cooking" for almost seven hours prior to seizure.)

Prior to trial, defendants were appointed counsel. About two months before trial, defendant Jennings expressed frustration at the limited contact he had with his attorney in a letter to the District Court. Then, on the day before trial, for the first time, defendants both moved for substitution of counsel. Their motions were denied.

A jury convicted defendants of one count of conspiring to manufacture and to possess with intent to distribute over 100 grams of methamphetamine, one count of possessing over 100 grams of methamphetamine with intent to distribute, and one count of endangering human life while manufacturing methamphetamine. Defendant Jennings was also convicted on one count of maintaining a place for the purpose of manufacturing and using methamphetamine, one count of distributing cocaine, and one count of distributing methamphetamine.

Pursuant to the sentencing guidelines, the District Court determined defendants' offense levels on the basis of drug quantities involved in the case. In fixing the drug quantity, the District Court equated the total weight of Crockpot contents with the relevant drug quantity. Accordingly, Jennings received concurrent prison terms of 293 months on counts one and two, 240 on counts three, five, and six, and 120 on count four, followed by five years of supervised release. Stepp received concurrent prison terms of 235 months on counts one and two, and 120 months on count four, followed by five years of supervised release.

Defendants argued in the first appeal that the District Court erred in failing to grant defendants' motions for substitution of counsel and that their sentences were improperly determined when the District Court computed their base offense level by weighing the total amount of the Crockpot mixture. See United States v. Jennings, 945 F.2d 129, 135 (6th Cir.1991).

We held that the District Court erred by not adequately inquiring into the cause of defendants' motions for new counsel and remanded with instructions to give the defendants the opportunity to show good cause for their motions to substitute counsel. Furthermore, we held that the District Court erred in including measurement of the entire contents of the Crockpot in its sentencing calculation and remanded for an evidentiary hearing on the capability of methamphetamine production from the contents of the Crockpot for the purpose of resentencing. Jennings, 945 F.2d at 136-37.

On remand, the District Court held the instructed hearings and concluded that defendants failed to show good cause for their motions to substitute counsel and that the defendants were capable of producing 210 grams of methamphetamine, a figure from which the defendants' base offense level was then recalculated. Stepp was then sentenced on Counts 1, 2, and 4 to 137 months, to run concurrently. Jennings received a sentence of 235 months for Counts 1,2,3,5, and 6, and 135 months on Count 4, to run concurrently.

Defendants appeal the District Court's conclusions both as to their motions to substitute counsel and as to the estimate of their drug producing capability. In addition, defendant Jennings appeals the District Court's refusal to review the presentencing report's relevant conduct section following the remand; defendants appeal the District Court's upward departure from the sentencing guidelines for significantly endangering public health and safety and the District Court's failure to depart downward for "sentencing entrapment;" and, finally, defendants appeal the District Court's sentence in excess of statutory authority on Count 4.

II.

A. The Good Cause Hearing Regarding Defendants' Motions for Substitution of Counsel

Defendants argue that the District Court abused its discretion when, on remand, it found that defendants failed to establish good cause for their motions for substitution of counsel.

In reviewing whether a district court abused its discretion in denying a defendant's motion to substitute counsel, appellate courts generally consider the timeliness of the motion; the adequacy of the court's inquiry into the defendant's complaint; and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense. Further, consideration of such motions requires a balancing of the accused's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice.

United States v. Iles, 906 F.2d 1122, 1130 n. 8 (6th Cir.1990) (citations and internal quotations omitted).

We agree with the District Court that the factor of timeliness does not count favorably for defendants. They moved for substitution of counsel on the day before trial for the first time. Defendant Jennings counters that he had notified the court of his dissatisfaction with counsel ten weeks earlier through a letter sent to the District Court. First, we note that this letter is irrelevant with respect to defendant Stepp's claim. Furthermore, the timeliness to be considered is "timeliness of the motion." We do not see Jennings' letter as notifying the court of a desire for new counsel, even construing it liberally as required of pro se motions. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). Far from asking for new counsel, defendant Jennings' letter to the District Court strives for greater contact with his attorney. Thus, the District Court accurately fixed the time of the motion as the day before trial and did not abuse its discretion in finding this factor unsupportive of defendants' motions. Defendants correctly point out that timing of such a motion is not, by itself, justification for denial of good cause. Appellant Jennings' Brief at 17 (citing United States v. Lillie, 989 F.2d 1054 (9th Cir.1993)). It remains, however, a factor not in their favor.

With regard to the second factor, defendant Jennings concedes that the District Court's hearing on remand was a thorough inquiry into the surrounding facts and thus, that the second factor was, at best, "neutral" with respect to defendants' claims. See, Defendant Jennings' Brief at 19; Government's Brief at 14-20 (summarizing proceedings). ³

Finally, we do not find that the District Court abused its discretion as to its determination of the third factor, whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense. The District Court found "lack of communication did not arise in this case."

Certainly the record evidences some dissatisfaction with counsel. Defendants did petition the District Court to dismiss counsel. But the third Iles factor requires a showing of more than communication with counsel which the defendant feels is unsatisfactory. Rather it requires a showing that "the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense." Defendants failed to prove that such a complete communication breakdown existed.

In fact, as referred...