U.S. v. Smith

• Decision Date: 18 August 2005
• Docket Number: No. 04-1476.,04-1476.
• Citation: 419 F.3d 521
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

419 F.3d 521

UNITED STATES of America, Plaintiff-Appellee, v. Marvin SMITH, Defendant-Appellant.

No. 04-1476.

United States Court of Appeals, Sixth Circuit.

Argued: July 22, 2005.

Decided and Filed: August 18, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Scott A. Srebnick, Miami, Florida, for Appellant. Robert Cares, United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Scott A. Srebnick, Miami, Florida, for Appellant. Robert Cares, United States Attorney, Detroit, Michigan, for Appellee.

Before: KENNEDY, CLAY, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

Marvin Smith, the delivery man for a drug-trafficking ring operating out of a Detroit car wash, was indicted in 1990 on charges that he conspired to possess and did possess 32 kilograms of powder cocaine with the intent to distribute, engaged in interstate travel in aid of racketeering, and unlawfully used a communication device. Shortly before the jury convicted Smith on all counts, he absconded. He was not apprehended until 12 years later. The district court, in 2004, sentenced him to 240 months in prison.

On appeal, Smith argues that the district court erred in (1) admitting into evidence the grand jury testimony of an important prosecution witness and then providing the transcript to the petit jury in the absence of a cautionary instruction, (2) reading the indictment against Smith to the jury and then sending it to the jury room without a proper limiting instruction, and (3) enhancing Smith's sentence on the basis of judge-found facts in violation of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. The drug-trafficking operation

Agents from the Federal Bureau of Investigation (FBI) raided June's Car Wash in Detroit, Michigan on the evening of July 11, 1989 and seized 32 kilograms of high-quality powder cocaine. The evidence that led to this investigation was primarily obtained through FBI wiretaps on three telephone lines. Two of the telephone lines were located at the car wash and the other was located at the home of Joseph Moss, one of the car wash's co-owners.

Calls that were intercepted on these lines in June of 1989 alerted FBI agents to the fact that a man in California, referred to alternatively as "Pops," "Bishop," and "Pops Bishop," was trying to make a large purchase of cocaine that he planned to deliver to the car wash. Smith admitted in a 1990 interview with an FBI agent that he had "used the name Bishop all his life," and "that people call him Pops." Furthermore, a voice exemplar taken from Smith matched the voice of the man in these intercepted calls.

During one of the June telephone conversations between Smith and Roosevelt Lockett, the other co-owner of the car wash, Smith advised that "whatever move I make right now is gonna be damn near big enough to hold us the summer." Lockett said to Smith, in a conversation later that day: "I'm sending you the seven." Moss sent a money order in the amount of $7,000 to California less than three hours later. It was payable to "Marvin Smith."

A month after this, another series of conversations intercepted on the phone lines suggested to agents that the car wash was expecting a large quantity of cocaine to be delivered in the near future. On July 10, 1989, Patricia McKenzie, also a member of the drug-trafficking ring, assured Moss that Smith would soon be making a delivery. McKenzie told Moss: "Okay. I talked to Pops and he called me twice yesterday. . . [and] he said it might be today." The next day, on July 11, 1989, Smith called Moss and advised him that "the front man's here so we talkin' about between three and six." At approximately 6:00 p.m., Smith called Moss at the car wash and asked, "Anybody in my parkin' spot?" Moss replied, "No." And Smith told him to "leave the door open."

FBI agents conducting surveillance on the car wash saw a red car arrive and then back into the wash bay nearest the office. Unlike the other cars that the agents had seen entering the bays, this car was not washed. (Three of the young men who were working at the car wash that day later testified that Moss had instructed them not to wash this particular car.) After backing the car in, the driver got out and opened the trunk. Moss and others were then seen taking boxes out of the trunk and carrying them to the office. As soon as the unloading was finished, the driver got back in the red car and drove away from the car wash. The car was followed by FBI agents, who obtained its license number, but never stopped the car. (In its brief, the government suggests that this was because the agents "were unable to stop it," but we find no support for this statement in the record.) A few minutes after the red car left the car wash, FBI agents executed a search warrant on the premises and discovered 32 kilograms of high-quality powder cocaine stored in the office.

B. Proceedings in the district court

Fourteen people were charged in connection with the drug-trafficking ring operating out of the car wash. Smith was indicted on five counts: conspiracy to possess powder cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846; possession of 32 kilograms of powder cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); engaging in interstate travel with the intent to carry on an unlawful activity, in violation of 18 U.S.C. § 1952; and two counts of unlawful use of a communication device, in violation of 21 U.S.C. § 843(b).

In January and February of 1991, Smith was tried along with 11 of his codefendants. The government alleged that Smith was "Pops Bishop," the man who had helped to orchestrate the cocaine purchase and who had driven the red car that delivered the cocaine to the car wash. None of the FBI agents conducting surveillance of the car wash, however, was able to identify Smith as the driver of the car that made the delivery. Three car wash employees who were working on the day of the delivery testified for the prosecution at trial, but they also failed to identify Smith as the driver of the red car. One employee, Carlos Clark, reluctantly admitted that the name of the driver "might have been Pops," and that he "remember[ed] the name." But Clark then insisted that he had never heard the name "Pops Bishop" at the car wash, and said that he could not identify Smith as the driver of the red car.

Because Clark's trial testimony differed from the testimony that he had previously given to the grand jury that indicted Smith, the government was permitted to read Clark's grand jury testimony into the record. See Fed.R.Evid. 801(d)(1)(A). The grand jury testimony, in relevant part, read as follows:

Q: Now, did you recognize the driver of the car?

A: Yes.

Q: Had you seen the driver before?

A: Yes, I saw him before.

Q: Did you know his name?

A: No.

Q: Did you know him by a nickname?

A: I think I heard of his nickname.

Q: What was his nickname?

A: I think it's Pops.

Q: Pops?

A: Yes.

. . .

Q: He had been to the car wash before? You'd seen him there before?

A: Right.

. . .

Q: Did you ever hear of a person by the name of Pops Bishop?

A: I think that's him.

Q: He was in the red car . . ., is that right?

A: Right.

In addition to reading this testimony into the record, the district court permitted the government to introduce a transcript of Clark's grand jury testimony as an exhibit. Later, the jury was permitted to view this exhibit during its deliberations.

Smith failed to appear for court on February 6, 1991, which was after the jury had begun its deliberations but two days before it found him guilty on all five counts. He remained a fugitive for 12 years. Smith was finally apprehended in Mexico in March of 2003. In 2004, the district court sentenced Smith to 240 months in prison. This timely appeal followed.

II. ANALYSIS

A. The fugitive disentitlement doctrine

This case presents the difficult question of whether we should employ the fugitive disentitlement doctrine to dismiss Smith's appeal from his conviction. Courts have used this doctrine to dismiss the appeals of defendants whose flights "operate[] as an affront to the dignity of the court's proceedings" or "so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal." Ortega-Rodriguez v. United States, 507 U.S. 234, 246, 249, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). The government argues that Smith's appeal from his conviction should be dismissed because his 12-year flight from justice has prejudiced the government's ability to retry him in the event that we set aside his 1991 conviction.

A review of the caselaw reveals that this court and courts in many of our sister circuits have applied the doctrine in circumstances similar to the present appeal. See, e.g., United States v. Genoa, 47 F.3d 1171, No. 93-2292, 1995 WL 73291, at *4 (6th Cir. Feb.22, 1995) (unpublished) (dismissing the appeal of a defendant who was a fugitive for three years because his appeal could not be consolidated with his codefendants' appeals, "constitut[ing] a significant interference with the substantial interests of the appellate process"); United States v. Sudthisa-Ard, 17 F.3d 1205 (9th Cir.1994) (applying the doctrine to dismiss the appeal of a defendant who had been a fugitive for thirteen years); United States v. Bravo, 10 F.3d 79 (2d Cir.1993) (dismissing the appeal of a defendant who was a fugitive for fifteen years).

All of the above cases, however, were decided prior to the Supreme Court's ruling in Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). In Degen, the Supreme Court refused to apply the disentitlement doctrine, "counsel[ing] restraint in resorting" to "the harsh sanction of absolute disentitlement." Id. at 823, 827, 116...