U.S. v. Lloyd

• Decision Date: 11 September 1997
• Docket Number: Nos. 96-30149,96-30183,s. 96-30149
• Citation: 125 F.3d 1263
• Parties: 97 Cal. Daily Op. Serv. 7325, 97 Daily Journal D.A.R. 11,802 UNITED STATES of America, Plaintiff-Appellee, v. Julie Mae LLOYD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mack Clarence COLQUITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1263

125 F.3d 1263

97 Cal. Daily Op. Serv. 7325, 97 Daily Journal

D.A.R. 11,802

UNITED STATES of America, Plaintiff-Appellee, v. Julie Mae LLOYD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Mack Clarence COLQUITT, Defendant-Appellant.

Nos. 96-30149, 96-30183.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 10, 1997.

Decided Sept. 11, 1997.

Zenon Olbertz, Tacoma, Washington, for defendant-appellant Lloyd.

David Zuckerman, Seattle, Washington, for defendant-appellant Colquitt.

Janet Freeman, Assistant United States Attorney, Seattle, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Jack E. Tanner, Senior District Judge, Presiding. D.C. Nos. CR-92-01377-JET, CR-92-01377-01-JET.

Before: WRIGHT, REINHARDT, and THOMAS, Circuit Judges.

REINHARDT, Circuit Judge:

This case involves an important Speedy Trial Act question. Lloyd and Colquitt were retried in the United States District Court more than a year after their original convictions were overturned on direct appeal. They were originally tried before a jury on one count each of conspiracy to distribute cocaine base and five counts each of distribution of cocaine base. At trial, they admitted selling drugs to a police informant but asserted a public authority defense, arguing that they made the sales in connection with their work as undercover informants for the Tahoma Narcotics Enforcement Team, a police unit in Pierce County, Washington. We reversed their convictions in an unpublished memorandum disposition filed September 15, 1994, concluding that the district court had abused its discretion in cutting off the defendants' questioning of the police officer in charge of their undercover activities. The mandate issued on December 19, 1994. Retrial commenced in district court, before the same district judge, 393 days later, on January 16, 1996. Again, the defendants admitted to making the drug sales, offered a public authority defense, and were convicted on all counts. They now appeal their convictions and their sentences on numerous grounds. Because we conclude that the defendants' speedy trial rights were violated and reverse their convictions for that reason, we do not consider their other claims.

I. BACKGROUND

Under the Speedy Trial Act, 18 U.S.C. §§ 3161-74, retrial "shall commence within seventy days from the date the action occasioning the retrial becomes final." See 18 U.S.C. § 3161(e). The Act sets forth several circumstances, however, under which delays are "excludable" from the computation of that seventy-day period. See 18 U.S.C. § 3161(h). If retrial following an appeal does not commence within seventy days, not counting excludable delays, the indictment must be dismissed either with or without prejudice. See 18 U.S.C. § 3162(a) (made applicable to post-appeal retrials by 18 U.S.C. § 3161(e)). A decision of our court becomes final for purposes of a retrial on the date that the mandate issues. See United States v. Ross, 654 F.2d 612, 616 (9th Cir.1981).

In this case, as we noted above, the mandate issued on December 19, 1994. ¹ On remand, the district court initially scheduled trial for February 27, 1995. On January 31, 1995, Colquitt filed a motion for a continuance until after May 14, and on February 21, Lloyd also moved for a continuance. On February 23, the district court continued the trial until May 30. Before jury selection began on May 30, Colquitt moved to strike the jury because the venire did not include any minorities. The district court granted that motion and then ordered the trial continued until August 7. On June 2, the government moved to reset the trial for June 19 because an August 7 trial would have commenced outside the seventy-day period provided under the Speedy Trial Act. The district court granted the government's motion on June 7. On June 8, Colquitt moved for a continuance to restore the August 7 trial date, and the district court granted that motion on June 15.

On July 3, the government filed a motion to disqualify Colquitt's court-appointed attorney, Wayne C. Fricke, because Fricke had previously represented Jimmy Fernandez, a newly discovered government witness. On July 14, Fricke filed an affidavit stating his belief that his prior representation of Fernandez would interfere with his ability effectively to represent Colquitt. Accordingly, the district court removed Fricke and, on July 18, appointed Richard B. Jones as substitute counsel.

On July 28, Jones filed a motion for a continuance. In an accompanying affidavit, Jones stated that he needed additional time to review the case materials and prepare for trial, and also that he had a vacation scheduled for September 1 through September 25. On August 1, Colquitt sent a handwritten letter to the district court. ² In that letter Colquitt requested that the court appoint Keith MacFie to represent him in lieu of Jones, and then explained that MacFie was aware of Jones' motion for a continuance, and that MacFie "has stated that he does'nt [sic] have a problem with a continues [sic]." It is not clear from the letter whether Colquitt was saying that MacFie did not need a continuance or, rather, that MacFie would not object to one if the court was inclined to grant Jones' motion. On August 3, the district court issued an order granting a continuance until September 25, a date that was more than nine months from the day we issued the mandate. The order stated that the trial was expected to last five days. The district court did not mention Colquitt's letter either in the order or at any other time during the proceedings below.

On August 18, Jones filed another motion for a continuance, a supporting affidavit, and a proposed order for a continuance through at least the end of December 1995, with trial to commence on some unspecified date in January 1996. Jones stated in the affidavit that he was "returning to town" from a vacation on September 25, and therefore that he "believes that there is not adequate time to prepare this matter for trial"; however, he did not explain whether he simply needed an extra day or two so that he would not have to start trial on the very day he was returning to town, or whether he instead wanted some unspecified additional period of time to prepare for trial. Jones also stated in his affidavit that Janet Freeman, the Assistant United States Attorney who intended to try the case, and Zenon Olbertz, Lloyd's attorney, would be unavailable at various points during October, November, and December. On the day that he filed the motion to continue, Jones also filed a motion to withdraw and a consent to substitution of counsel. Jones's accompanying affidavit stated that, as Colquitt had previously informed the court, he preferred to be represented by Keith MacFie. The district court did not hold a hearing on either the motion to continue or the motion to withdraw, nor, according to the record, did it attempt to ascertain whether Jones' assertions about Freeman's and Olbertz's schedules were correct. Instead, the district court on September 19 simply filed an order denying the motion to withdraw, granting the continuance, and setting trial for January 16, 1996, a date that was approximately thirteen months from the date the mandate issued, and almost four months from the most recently established trial date.

On October 16, Colquitt sent the district court a second handwritten letter. That letter related the following information: (1) Jones filed the first (July 27) motion for a continuance without consulting Colquitt; (2) Colquitt did not discover that the motion had been filed until July 31; (3) the motion to continue "was filed for the benifit [sic] of Mr. Jones [sic] own personal gain"; (4) Colquitt did not consent to the continuance or to any trial date after August 7, nor did he sign a "waiver" of his speedy trial rights; ³ (5) on August 7, Colquitt telephoned Jones, requesting that Jones withdraw because the motion for a continuance Jones filed without Colquitt's consent violated Colquitt's speedy trial rights; (6) Colquitt was not consulted about, and did not consent to, the second (August 18) request for a continuance that Jones filed on his behalf; and (7) Colquitt did not sign any purported "waiver" of his speedy trial rights at that time either. Based upon Jones' "outrageous conduct and misrepresention [sic]," Colquitt once again requested that the court remove Jones and appoint MacFie in his stead. The court apparently never responded to this letter. ⁴

On December 13, Lloyd, through her attorney, filed a motion to dismiss on the basis of a Speedy Trial Act violation. It appears from the record that the district court never ruled on that motion. On December 18, Colquitt filed a pro se motion to dismiss for a violation of his speedy trial rights and for appointment of new counsel. Along with his motion, he filed a supporting affidavit, a copy of his October 16 letter to the court, and copies of every motion for a continuance, every supporting affidavit, and every "Waiver of Speedy Trial" filed in his name since we remanded following the defendants' first appeal. The government filed an opposition to the defendants' motions to dismiss on December 20.

In a letter he sent to Colquitt on December 22, Jones stated that (1) because the court had just denied a motion to withdraw, filed at Colquitt's request, Jones would not file another such motion, and (2) if Colquitt wanted him removed from the case, Colquitt would have to prepare and file a motion on his own. Jones appears to have been unaware of Colquitt's December 18 motion when he sent that letter. On January 4, 1996, Colquitt filed yet another pro se motion to dismiss for a violation of his speedy trial rights and for new counsel. To the motion he attached, inter alia, a copy of Jones' December 22 letter. The district court did not respond to those...