U.S. v. Thomas

• Citation: 167 F.3d 299
• Decision Date: 05 February 1999
• Docket Number: No. 97-1401,97-1401
• Parties: 51 Fed. R. Evid. Serv. 487 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Preston THOMAS, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 299

167 F.3d 299

51 Fed. R. Evid. Serv. 487

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Preston THOMAS, Jr., Defendant-Appellant.

No. 97-1401.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 26, 1998.

Decided Feb. 5, 1999.

Robert J. Dunn (argued and briefed), Bay City, Michigan, for Defendant-Appellant.

James A. Brunson (argued and briefed), Asst. U.S. Atty., Bay City, Michigan, for Plaintiff-Appellee.

Before: JONES and COLE, Circuit Judges; O'MALLEY, District Judge. ^*

OPINION

NATHANIEL R. JONES, Circuit Judge.

Defendant-Appellant Jerry Preston Thomas, Jr. appeals his re-sentencing on remand for marijuana-related convictions on the grounds that (1) the 29-month delay from remand to final sentencing violated his due process rights, (2) the district court erred in attributing 1,000 pounds of marijuana to him for sentencing purposes, and (3) the district court erred in excluding the results of a polygraph test that he took that exonerated him from the marijuana possession charges. Because we see no error in the proceedings below, we will affirm Thomas's sentence.

I.

The facts underlying Thomas's conviction have been set forth in an unpublished decision rendered previously by this court and are sometimes repeated herein. See United States v. Thomas, et al., Nos. 93-1873, 93-1905, 93-1954, 35 F.3d 567 (6th Cir. Sept. 13, 1994) (per curiam). Six defendants, including Thomas, were originally charged with multiple counts of possession of marijuana with intent to distribute in violation of 18 U.S.C. § 841(a), aiding and abetting the distribution of marijuana in violation of 18 U.S.C. § 2, and conspiring to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. According to the government, Thomas was the "broker," or marketing man, in this drug conspiracy.

At a 1993 jury trial presided over by Judge Cleland, Detective Dennis McMahan of the Saginaw Township, Michigan Police Department testified that he began to investigate the defendant's activities in October 1991. On at least eight occasions between January 28 and July 17, 1992, while working undercover, McMahan purchased various quantities of marijuana, ranging from four ounces to two pounds, from Thomas and a co-defendant, Antonio Vallegos. Thomas was directly involved in at least one of the sales, and accompanied his co-defendants during the other sales. McMahan's testimony was corroborated in part by taped telephone conversations between himself and Thomas, in which some of the deals were arranged. Co-conspirator Michael Castillo testified at the trial that he introduced Thomas to Vallegos, so that Thomas could purchase marijuana from Vallegos to sell to McMahan.

McMahan also testified that Norman Wilson, a paid informant, called McMahan on January 28, 1992, stating that Thomas and another defendant had obtained over 1,000 pounds of marijuana. This particular statement, however, was uncorroborated.

As was the case with most of his co-defendants, the jury found Thomas guilty as charged. In June 1993, he was sentenced to a term of 212 months' imprisonment and four years of supervised release.

Thomas and two other co-defendants subsequently appealed to this court. On September 13, 1994, we affirmed Thomas's conviction, but vacated his sentence because we found error in the district court's finding that Thomas and his co-defendants were responsible for an additional 500 pounds of marijuana. This amount, however, was separate from the aforementioned 1,000 pound shipment of marijuana. With regard to the 1,000 pound quantity of drugs, we sustained the trial court's determination that Thomas was responsible for a 1,000 pound shipment in accordance with McMahan's testimony. See Thomas, 35 F.3d 567.

The issuance of our opinion affirming Thomas's conviction on direct appeal was the beginning of a 29-month odyssey to reach Thomas's re-sentencing. The case was remanded to the district court on October 5, 1994, and Thomas's re-sentencing was scheduled for December 9, 1994. In the interim, however, Thomas filed a petition for rehearing in this court, and requested the district court to postpone the re-sentencing date pending this court's ruling on the petition for rehearing. On November 30, 1994, the district court agreed to suspend the re-sentencing date until we ruled on Thomas's rehearing petition. We denied the petition for rehearing on December 8, 1994. Before the district court issued a new date for re-sentencing, Thomas filed a petition for a writ of certiorari in the United States Supreme Court. On April 17, 1995, the petition for certiorari was also denied. See Thomas v. United States, 514 U.S. 1074, 115 S.Ct. 1717, 131 L.Ed.2d 576 (1995). The denial of the certiorari petition was filed in the district court on May 1, 1995.

Meanwhile, construction for the renovation of the federal courthouse in Bay City, Michigan (where Judge Cleland sits) had begun and was not completed until November 9, 1995. During the seven-month period of construction, Judge Cleland had to utilize borrowed courtrooms and chambers in Port Huron, Flint, and Detroit. According to the government, these circumstances delayed the disposition of several of Judge Cleland's cases, including Thomas's.

Shortly after receiving the denial of Thomas's certiorari petition, the district court scheduled Thomas's re-sentencing hearing for May 15, 1995. For reasons not explained in the record, this hearing was canceled. Instead, as Thomas himself puts it, "nothing happened" in the case other than status hearings in July and September of 1995. Whether these hearings bore any fruit towards resolving Thomas's sentencing is not apparent from the record before us.

On January 31, 1996, Thomas moved to set aside his convictions based upon the delay in the proceedings. On February 6, 1996, the district court denied the motion to dismiss, set the re-sentencing hearing for March 7, 1996, and ordered all parties to file objections to the district court's tentative guideline determinations. ¹ Thomas did not file any such objections, but instead on February 29, 1996, filed a "Renewed Motion for Dismissal for Denial of Due Process" in the district court.

On March 6, 1996, the day before the scheduled date for re-sentencing, Thomas filed a motion for an evidentiary hearing. In this motion, Thomas maintained that the district court had erroneously determined at his first trial that he was responsible for the 1,000 pound marijuana shipment. At the sentencing hearing the next day, the district court granted Thomas's request for a continuance pending the court's resolution of the motion for an evidentiary hearing. On April, 16, 1996, after ordering the government to submit a response to the motion, the district court eventually denied both Thomas's motion to dismiss and his motion for an evidentiary hearing.

While Thomas's motions were pending in the district court, he took a private, ex parte polygraph examination on April 5, 1996 regarding his role in the marijuana shipment. The results of this polygraph were apparently favorable. Before a new sentencing date could be scheduled, Thomas filed a motion in the district court on May 10, 1996 for an evidentiary hearing based upon the polygraph results. On August 20, 1996, Thomas filed another brief renewing the motion to admit the polygraph test results, this time relying on the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). ² On September 19, 1996, the district court denied the motion for a hearing based on the purported favorable polygraph results.

On September 26, 1996, Thomas appeared for re-sentencing. However, on that day, Thomas argued that (1) he had filed two motions to dismiss for due process/delay violations and the district court only denied one, and (2) the district court never ruled on the second motion he had filed arguing that polygraph results must be admitted pursuant to Daubert. Over the government's objections, the district court allowed Thomas an additional two weeks to brief the Daubert issue.

On November 8, 1996, six weeks later, Thomas finally filed his Daubert brief. The government filed its response a week after that. On December 4, 1996, the district court denied Thomas's Daubert request to admit the polygraph results at the sentencing hearing.

On December 17, 1996, Thomas appeared again for re-sentencing. This time, however, Thomas asserted that he now had sworn testimony from the grand jury hearing--which took place in September 1992--in which (1) a witness testified that he had never seen Thomas with a gun, and (2) the government's witnesses never stated that the transaction in question involved 1,000 pounds of marijuana. Based on this "new evidence," Thomas requested that the district court reconsider its previous finding (made sometime in 1993) that he had used a gun in furtherance of the offense. Thomas also urged the district court to reconsider its ruling on the polygraph admissibility issue. Again, over the government's objections, the district court ordered additional briefing regarding the gun and marijuana findings.

All additional briefs were filed by February 11, 1997. The district court ordered the parties to attend a new sentencing hearing to be held on March 27, 1997. On that date, the district court denied Thomas's motions to reconsider both factual findings. The district court then sentenced Thomas to 151 months' imprisonment. Thomas now appeals his new sentence to this court.

II.

Thomas's first argument is that the 29-month period from the time we affirmed his conviction on direct appeal to the March 1997 date of his re-sentencing, was an unreasonable delay in violation of his Sixth Amendment rights. ³ In evaluating claims of unreasonable delay in criminal cases, the court of appeals will review questions of law de novo and questions of fact for clear error. See United States v. Smith,...