U.S. v. Shealey

• Decision Date: 25 April 2011
• Docket Number: No. 09–4653.,09–4653.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Donald Stanton SHEALEY, a/k/a Face, a/k/a Diddy, a/k/a Face Diddy, a/k/a The City, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

641 F.3d 627

UNITED STATES of America, Plaintiff–Appellee,

v.Donald Stanton SHEALEY, a/k/a Face, a/k/a Diddy, a/k/a Face Diddy, a/k/a The City, Defendant–Appellant.

No. 09–4653.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 28, 2011.Decided: April 25, 2011.

ARGUED: Jeffrey Michael Brandt, Robinson & Brandt, PSC, Covington, Kentucky, for Appellant. Michael Gordon James, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: George E.B. Holding, United States Attorney, Jennifer P. May–Parker, Michael G. James, Assistant United States Attorneys, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.Before NIEMEYER, KING, and GREGORY, Circuit Judges.Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge NIEMEYER and Judge KING joined.

OPINION

GREGORY, Circuit Judge:

Appellant challenges his drug convictions for violations of the Speedy Trial Act and of the Fifth and Sixth Amendments as well as sentencing errors. We affirm because we find that the district court properly granted a continuance, rightly denied Appellant's motion to sever, and properly calculated his sentence.

I.

On September 24, 2008, a grand jury indicted Donald Shealey, Appellant, and seven other co-defendants on six counts of distributing and conspiring to distribute cocaine, cocaine base, and heroin. The co-defendants included Salahudeen Abdallah, Khalid Abdallah, Timothy Hargrove, Tyrone Lawrence, Gilbert Sherwood, Jamal Watson, and one individual whose name was redacted. The charges stem from the operation of a local drug organization known as the Face Mob Family (“FMF”). Appellant was arrested on September 30, 2008.

Arraignment was initially set for December 8, 2008. On October 28 and 30, 2008, co-defendants Hargrove and Lawrence moved to continue arraignment and trial. On October 31, 2008, the district court granted that motion and continued the arraignment and trial dates to January 20, 2009. The district court excluded this time from its Speedy Trial Act computation.

On December 2, 2008, co-defendant Khalid Abdallah's original attorney withdrew, and was replaced on December 12. On December 21, 2008, Appellant rejected a plea agreement the Government had offered him. In phone conversations that week, the Government informed Appellant that it would be filing a superseding indictment, adding a money laundering count.

On January 5, 2009, Khalid Abdallah moved for a continuance for the first time. On January 6, 2009, Appellant requested that motion be denied unless Khalid Abdallah's case was severed from Appellant's. Appellant further asked to protect his speedy trial rights and to commence his trial as planned, on January 20 or soon after. On January 8, the district court denied Khalid Abdallah's first motion to continue.

Then on January 15, 2009, three things occurred: First, Khalid Abdallah filed a second motion to continue, explaining that he had replaced his lawyer due to a prior conflict of interest, and his replacement counsel had only received new discovery materials on December 20, 2008. Those new materials consisted of eleven computer disks, including several tens of thousands of pages of FBI, DEA, and local police reports and transcribed telephone intercepts. Khalid Abdallah's new lawyer stressed that it took time to organize these materials in order to identify and correct errors in how Khalid Abdallah was identified or misattributed in the transcripts. Khalid Abdallah also pointed out that he had not been provided all of the discovery materials in the case, including interviews with multiple law enforcement officials, warrants, and search logs. Co-defendant Jamal Watson supported the motion.

Second, Appellant responded to Abdallah's second motion, renewing his demand for a speedy trial which was supposed to start the week of January 20, 2009. Appellant contended that “[i]f the Government has failed to provide timely discovery, intentionally, negligently, or otherwise, that fact should not ... ‘force’ a continuance ... [or] allow the Government to circumvent the present arrangement and trial schedule [to] allow them more time to perfect their case.” J.A. 49. Appellant suggested that the Government's superseding indictment was manipulative, since it was based on information the Government had already possessed for four months. Finally, Appellant argued that the “Government can hardly argue that all defendants should remain joined for ‘judicial economy’ if they are responsible for the last-minute issues that appear to be forcing a continuance.” J.A. 50.

Third, still on January 15, 2009, the grand jury returned a superseding indictment which added three new counts. The first new count alleged Appellant and Samara Laben Scott conspired with each other in money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(ii), and 1956(h). The second new count alleged Appellant and co-defendant Scott aided and abetted each other to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (2). The third new count alleged codefendant Watson was a felon in possession of a firearm. The superseding indictment also added two co-defendants to the original charge of conspiracy to possess heroin, cocaine, and crack with intent to distribute.

The next day, on January 16, 2009, the Government joined Khalid Abdallah's and Jamal Watson's motions for a continuance. The Government reiterated that Khalid Abdallah had recently obtained replacement counsel who was still getting up to speed. The Government also pointed to the superseding indictment, new defendants, and additional finance-related charges to support its position. To deny a continuance, the Government argued, “would provide these two new defendants only [ ] seven days to prepare for, and proceed to trial....” J.A. 59. The Government emphasized the complex and voluminous nature of the federal wiretap. The Government also contended that it had produced all discovery materials to Appellant before October 20, 2008, and given him the opportunity to inspect or copy tangible evidence—but he never responded. The Government also opposed severance and argued that the conspiracy charges should be tried together.

Finally, that same day, January 16, 2009, the district court granted Abdallah's second motion to continue, namely because the superseding indictment “add[ed] substantive charges against the existing defendants, as well as adding two new co-defendants.” J.A. 64. The district court continued the trial until March 2, 2009, for all co-defendants because “the ends of justice served by this continuance outweigh the interests of the [Appellant] and the public in speedy trial.” J.A. 65. Consequently, the district court concluded that any delay be excluded from its Speedy Trial Act calculation pursuant to 18 U.S.C. § 3161(h).

On January 18, 2009, Appellant moved to sever on the grounds that he was “prepared to address all allegations contained in both the original and superseding indictments” and was “specifically not asking for any further time to prepare for trial.” J.A. 67. Appellant reiterated that he had consistently asserted his rights and that the Government was engaging in dilatory tactics to conduct additional interviews and strengthen its case. Appellant asserted that “the evidence of prejudice to [Appellant] will be born out at trial as it becomes clear for this Court, and the appellate courts, if necessary, that the Government will only have acquired, perfected, and put into ‘trial form’ much of its evidence after ... January 20th....” J.A. 68.

On February 12, 2009, the district court denied Appellant's motion to sever. It reasoned that Appellant had “failed to show any ‘actual prejudice’ or ‘specific trial right’ that would be compromised by the continuance....” J.A. 71–72 (citing United States v. Najjar, 300 F.3d 466, 473 (4th Cir.), cert. denied, 537 U.S. 1094, 123 S.Ct. 705, 154 L.Ed.2d 641 (2002)).

Subsequently, at trial, several co-defendants testified against Appellant about his sales of drugs and purchases of cars for his FMF associates. Law enforcement officials testified about the results of wiretaps and search of Appellant's home. The jury convicted Appellant on all eight counts. The district court sentenced him to life on count one; 360 months on each of counts two through six; and 240 months for each of counts seven and eight—all to be served concurrently.

Appellant timely appealed to this Court, alleging violations of the Speedy Trial Act and of the Fifth and Sixth Amendments as well as sentencing errors. We address those three issues in turn.

II.

We review de novo a district court's legal interpretation of the Speedy Trial Act. United States v. Bush, 404 F.3d 263, 272 (4th Cir.2005). We review a district court's denial of a motion for severance for an abuse of discretion. United States v. Khan, 461 F.3d 477, 490 (4th Cir.2006), and will reverse if joinder deprives defendants “of a fair trial and results in a miscarriage of justice.” United States v. Harris, 498 F.3d 278, 291 (4th Cir.2007) (citation omitted).

Appellant argues that the district court erred in denying his motion to dismiss for Speedy Trial Act violations as a result of denying his motion for severance. Appellant maintains, as he did at trial, that this prejudiced him because the Government “acquired, perfected and put into ‘trial form’ much of its evidence after the Court's [original] January 20th [trial date].” J.A. 68. Namely, Appellant points out that at least nine Government witnesses did not sign or enter into plea agreements until after January 20, 2009.

The Speedy Trial Act generally requires a defendant be tried within 70 days of either the filing of an indictment or appearing before a judge, whichever is later. 18 U.S.C. § 3161(c)(1) (2001). “All defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant.”...