U.S. v. Parker

• Decision Date: 27 July 1994
• Docket Number: No. 93-5609,93-5609
• Citation: 30 F.3d 542
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Afnan Jerome PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 542

30 F.3d 542

UNITED STATES of America, Plaintiff-Appellee, v. Afnan Jerome PARKER, Defendant-Appellant.

No. 93-5609.

United States Court of Appeals, Fourth Circuit.

Argued May 13, 1994.

Decided July 27, 1994.

ARGUED: Deborah C. Wyatt, Wyatt & Carter, Charlottesville, VA, for appellant. Stephen Urban Baer, Asst. U.S. Atty., Roanoke, VA, for appellee. ON BRIEF: Robert P. Crouch, Jr., U.S. Atty., Roanoke, VA, for appellee.

Before MURNAGHAN, Circuit Judge, LEGG, United States District Judge for the District of Maryland, sitting by designation, and ERWIN, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Circuit Judge MURNAGHAN wrote the opinion, in which Judge LEGG and Senior District Judge ERWIN joined.

OPINION

MURNAGHAN, Circuit Judge:

Defendant-appellant Afnan Jerome "Tony" Parker was indicted and convicted for distributing, or possessing with the intent to distribute, cocaine base ("crack") within 1000 feet of a playground. He was sentenced to 112 months' imprisonment, to be followed by eight years of supervised release. He now appeals, principally challenging (1) the district court's denial of his pretrial motion to dismiss the indictment for violation of the Speedy Trial Act of 1974, as amended, 18 U.S.C. Secs. 3161-3174; and (2) the sufficiency of the evidence that the drug possession was within 1000 feet of a "playground," as defined in 21 U.S.C. Sec. 860. We affirm on the first ground, but reverse and remand on the second.

I

In the early morning hours of July 21, 1991, the Charlottesville (Virginia) Police Department received a tip that a juvenile known as "Tank" was selling crack cocaine from the front porch of 413 Fifth Street, approximately 400 feet from Tonsler Park. As Detectives Don Campbell and Mike Dean arrived at the house and identified themselves, Clarence "Tank" Jackson (a 13-year-old who matched the description given by the informant) and defendant-appellant "Tony" Parker, a 25-year-old, stood up. Scattered in front of Jackson were four plastic baggies containing crack. In front of Parker, Detective Campbell observed a police radio scanner and a paper bag which contained 54 plastic baggies of crack. The detectives arrested Jackson and Parker, and seized a total of 10.19 grams of crack, as well as the police radio scanner and several hundred dollars in cash.

On September 24, 1991 a grand jury sitting in the United States District Court for the Western District of Virginia, Charlottesville Division, indicted Parker for one count of distributing, or possessing with the intent to distribute, more than five grams of crack within 1000 feet of a playground, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), and 860(a). He was arraigned on October 22. On November 7 Parker's defense counsel filed a written motion to withdraw as counsel. The court took the motion under advisement, but conducted no hearing on it. On November 26 the court appointed a new attorney for Parker. The newly appointed counsel made no request to delay the trial, which was then scheduled to commence on December 16. On December 6 the court formally filed an order permitting the original attorney to withdraw as Parker's counsel of record.

Although Parker's trial had been scheduled for mid-December, the district judge delayed it until January 16, 1992. While in pretrial detention, Parker was given a physical examination and later informed that he had tested positive for the HIV virus. On January 8 Parker filed a motion to dismiss the indictment on the ground that the court had violated his rights under the Speedy Trial Act. At a hearing on January 13, the district court, relying on one of the Act's excludable-time provisions, 18 U.S.C. Sec. 3161(h)(1)(J), denied the motion to dismiss.

Parker was tried before a jury on January 16. Although he was charged with drug possession or distribution within 1000 feet of a "playground"--a term defined with some specificity in 21 U.S.C. Sec. 860--the only evidence pertaining to the supposed "playground" was Detective Dean's testimony that the edge of Tonsler Park lay about 400 feet from the front porch of 413 Fifth Street (where he had arrested Parker and seized the crack), Parker's testimony that he had met Jackson at the basketball court in Tonsler Park, and Jackson's testimony that he had met Parker while playing one-on-one basketball in Tonsler Park. The jury was given no instruction on the specific definition of the word "playground" that is contained in Sec. 860. Parker did not then object to the jury instructions.

The jury found Parker guilty as charged, expressly indicating on the verdict form that the possession "occur[red] within one thousand feet of real property comprising a playground." The district court entered a judgment of conviction for one count, under 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), and 860(a).

At sentencing, Parker's base offense level was 28--level 26 for the quantity of crack under U.S.S.G. Sec. 2D1.1(c)(9), plus a two-level enhancement under U.S.S.G. Sec. 2D1.2(a)(1) for a drug offense "directly involving a protected location," i.e., a playground. Because Parker was deemed the leader of a small, unorganized criminal activity--transporting crack to the Charlottesville area and enlisting local youths to distribute the substance--his offense level was increased another two levels under U.S.S.G. Sec. 3B1.1(c). His criminal history category was II, based on his 1988 conviction for assault with a deadly weapon, a crime in which the victim was shot six times and became paralyzed as a result. With a criminal history category of II and a total offense level of 30, the applicable guideline range was 108 to 135 months of imprisonment. The judge sentenced Parker to 112 months' imprisonment (with credit for time served, including time served during pretrial detention), to be followed by eight years of supervised release. The court recommended to the Bureau of Prisons that Parker be confined in a medical institution suitable for the treatment of AIDS. Parker, faced with the prospect of dying in federal custody, now appeals.

II

Parker's first claim of error is that the district court should have dismissed the charge pending against him because the court had violated the Speedy Trial Act of 1974, as amended, 18 U.S.C. Secs. 3161-3174 ("the Act"). Specifically, he claims that the court below misinterpreted 18 U.S.C. Sec. 3161(h)(1)(J) ("subparagraph (J)"). We review the legal conclusions in the district court's application of the Act de novo. See United States v. Wright, 990 F.2d 147, 148 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 199, 126 L.Ed.2d 157 (1993).

A

The Speedy Trial Act entitles a criminal defendant to dismissal of the charges pending against him if he is not brought to trial within 70 days of his initial appearance or indictment. See 18 U.S.C. Secs. 3161(c)(1), 3162(a)(2). In computing the running of the 70-day period, Sec. 3161(h)(1) excludes certain periods of delay resulting from pretrial proceedings:

(h) The following periods of delay shall be excluded ... in computing the time within which the trial ... must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to--

. . . . .

(F) 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; [and]

. . . . .

(J) 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.

Id. Secs. 3161(h)(1)(F), (J).

In Henderson v. United States, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986), the Supreme Court interpreted subparagraphs (F) and (J) of Sec. 3161(h)(1) and recognized that the former subparagraph mandates a distinction between pretrial motions that require a hearing and those that do not. Where a hearing is required, subparagraph (F) excludes the entire period from the filing of the motion to the conclusion of the hearing on that motion, regardless of whether any delay in holding the hearing was "reasonably necessary." Once the court has held the hearing and received any post-hearing submissions from the parties that it needs for proper disposition of the motion, the court takes the motion "under advisement" and subparagraph (J) excludes up to 30 additional days thereafter, up to and including the date on which the court finally disposes of the motion. ¹ If the pretrial motion requires no hearing, sub paragraph (F) excludes the period from the filing of the motion to the time the court receives all the papers it reasonably expects. Once the court has received the papers, the motion "is actually under advisement" and subparagraph (J) excludes up to 30 additional days thereafter, up to and including the date on which the court finally disposes of the motion. See id. at 326-31, 106 S.Ct. at 1874-77. ²

B

In the present case, Parker was arraigned on October 22, 1991. If there were no periods of excludable delay, his 70-day period would have expired on December 31. The trial commenced on January 16, 1992--sixteen days after the initial 70-day period would have expired, barring any periods of excludable delay. Applying subparagraph (F), the Government has sought to exclude six days--from January 8, 1992 (when Parker filed his motion to dismiss the indictment for violation of the Speedy Trial Act) to January 13, 1992 (when the court held a hearing on and denied that motion), inclusive. On appeal, Parker has not challenged that exclusion. See Wright, 990 F.2d at 149 n. 4 (stating that a motion to dismiss on Speedy Trial Act grounds is a motion causing excludable delay under subparagraph (F)) (citation omitted); United States v. Wilson, 835 F.2d 1440, 1444 (D.C.Cir.1987) (same). ...