U.S. v. Vaughn

• Decision Date: 17 April 1997
• Docket Number: No. 96-2816,96-2816
• Citation: 111 F.3d 610
• Parties: 46 Fed. R. Evid. Serv. 1434 UNITED STATES of America, Appellee, v. Jimmy VAUGHN, also known as Jimmy Thompson, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 610

111 F.3d 610

46 Fed. R. Evid. Serv. 1434

UNITED STATES of America, Appellee, v. Jimmy VAUGHN, also known as Jimmy Thompson, Appellant.

No. 96-2816.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 10, 1997.

Decided April 17, 1997.

Richard Holland Sindel (argued), Clayton, Missouri, for appellant.

Thomas Joseph Mehan, Assistant U.S. Attorney (argued), St. Louis, Missouri, for appellee.

Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, ¹ District Judge.

BOWMAN, Circuit Judge.

Following a trial by jury, Jimmy Vaughn was convicted of five counts of possessing with intent to distribute, and two counts of attempting to possess with intent to distribute, controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994). The District Court ² sentenced him to 240 months in prison. Vaughn appeals, and we affirm.

Because Vaughn does not challenge the sufficiency of the evidence to support his conviction, we need not relate in great detail the facts underlying his case. Vaughn was convicted of possessing or attempting to possess different combinations of cocaine, cocaine base, and marijuana on four different occasions: February 1993, June 1994, May 1995, and February 1996. For sentencing purposes, the District Court attributed to Vaughn approximately six kilograms of marijuana, two kilograms of cocaine, and 170 grams of cocaine base.

Vaughn's first point on appeal concerns the application of the Speedy Trial Act's timing provisions, 18 U.S.C. § 3161 (1994). Vaughn was originally indicted on June 30, 1995, on two counts relating to possession of drugs in May 1995. Throughout the remainder of 1995, Vaughn retained two different private attorneys and obtained several continuances of his scheduled trial date. In November 1995, the court appointed a public defender to represent Vaughn because his second retained attorney had a conflict of interest. On February 1, 1996, the grand jury returned a first superseding indictment against Vaughn, adding charges relating to incidents in June 1994 and February 1993. The trial was further postponed to April 1, 1996.

While Vaughn was free on bond, he was arrested again on February 23, 1996, for additional drug offenses. A second superseding indictment including these new charges followed on February 29, and Vaughn was arraigned on the new charges on March 5. A new retained attorney entered an appearance on Vaughn's behalf on March 19 and moved to continue the trial date, citing the need for time to prepare for trial. As the April 1 trial date approached, counsel also raised the Speedy Trial Act objection we consider here. The District Court denied Vaughn's motion, and the case proceeded to trial, where Vaughn was convicted.

The particular subsection of the Speedy Trial Act with which we are concerned here provides: "Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se." 18 U.S.C. § 3161(c)(2) (1994). Vaughn argues that he did not appear through counsel in response to the new charges in the second superseding indictment until he was arraigned on March 5, and he should not have been required to go to trial on April 1, less than thirty days later. We disagree.

A defendant is "not automatically entitled to a thirty-day continuance" upon the filing of a superseding indictment. United States v. Simpson, 979 F.2d 1282, 1287 (8th Cir.1992) (involving addition of new charge to indictment before trial), cert. denied, 507 U.S. 943, 113 S.Ct. 1345, 122 L.Ed.2d 727 (1993); see also United States v. Rojas-Contreras, 474 U.S. 231, 234, 106 S.Ct. 555, 557, 88 L.Ed.2d 537 (1985) (involving minor correction of indictment before trial); United States v. Punelli, 892 F.2d 1364, 1369 (8th Cir.1990) (involving addition of new charges to indictment before retrial); United States v. Reynolds, 781 F.2d 135, 137 (8th Cir.1986) (involving housekeeping amendment to indictment before retrial). A district court has discretion to grant a continuance if the "ends of justice" so require. 18 U.S.C. § 3161(h)(8)(A) (1994). We have previously recognized that a district court is not required to exercise its discretion to grant a continuance unless the defendant would be prejudiced by a lack of time to prepare to meet the new charges in the superseding indictment. See Simpson, 979 F.2d at 1287; Punelli, 892 F.2d at 1369; cf. Rojas-Contreras, 474 U.S. at 240-41, 106 S.Ct. at 560 (Blackmun, J., concurring in the judgment) ("[A] continuance should be granted where there is a meaningful possibility that a superseding indictment will require an alteration or adjustment in the planned defense.").

We cannot conclude that the District Court abused its discretion in refusing to allow Vaughn another continuance of the trial. We note that Vaughn's trial did not start until twenty-seven days after his latest arraignment and thirty-two days after the grand jury returned the latest indictment. We also recognize that Vaughn has not specified any way in which he was prejudiced by the District Court's action; he argues only that the new charges made the case more complex and that there was a possibility that his planned defense would have to be altered. But Vaughn now has been to trial and has been convicted. If he cannot now demonstrate actual prejudice as a result of the District Court's order, we can hardly conclude that the District Court abused its discretion in issuing that order.

Nor does the last-minute appearance of Vaughn's new retained attorney affect our analysis. The District Court took this issue into account and concluded that it did not tip the balance in favor of another continuance:

The belated entry of the retained counsel now representing defendant in no way supports a request for a continuance, given the length of these proceedings, the Court's previous generosity to defendant in connection with his attempts to retain counsel of his choosing, and counsel's knowledge of the trial setting at the time of his entry of appearance. Competent appointed counsel was in place and prepared to try the case on the assigned docket.

Order at 7. In any event, a review of the trial transcript reveals that Vaughn's new counsel was prepared to handle the charges of February 1996: counsel effectively cross-examined the government's witnesses and introduced testimony, including testimony of an agent of the Drug Enforcement Agency, that was inconsistent with the government's evidence. In light of these factors, we cannot agree with Vaughn that the appearance of new counsel requires us to conclude that the District Court abused its discretion in denying a continuance.

Vaughn raises a double-jeopardy argument based on the forfeiture of $19,777 seized during his May 1995 arrest. He claims that he dropped his objections to that forfeiture as part of an agreement with a police detective, who allegedly told Vaughn that he would not be prosecuted if he assisted the police and did not contest the forfeiture action. This argument is foreclosed by United States v. Ursery, --- U.S. ----, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), in which the Supreme Court held that in rem civil forfeiture does not constitute punishment for purposes of the Double Jeopardy Clause. See id. at ----, 116 S.Ct. at 2142. Because Vaughn was not punished in the earlier forfeiture action, it follows that his conviction in the instant case did not constitute a second punishment for the same offense. ³

Vaughn's next argument is that the District Court erred in denying his motion to disqualify the United States Attorney's office. Vaughn's theory below was that the Assistant United States Attorney was privy to a prior inconsistent statement made by a police officer and thereby became a material witness as to the officer's credibility; as a material witness in the case, the Assistant United States Attorney could not also serve as prosecutor. The District Court concluded that this issue was moot because the officer admitted making the prior inconsistent statement, and we agree. On appeal, Vaughn presents a different theory of disqualification, arguing that the Assistant United States Attorney was aware of the deal Vaughn allegedly made with a police detective regarding the forfeiture of $19,777 and was therefore a material witness on that issue. Vaughn did not present this argument to the District Court, so it is not properly before us, and if he had, the District Court's factual finding that no such deal existed would have ended the matter, subject only to appellate review for clear error, which we do not find on this record. The argument is thus doubly doomed, and it affords Vaughn no basis for relief.

Vaughn also complains that the District Court abused its discretion in admitting evidence that he had accumulated assets that he placed in other individuals' names. We conclude that admission of this evidence was error, but it was harmless error.

The evidence that Vaughn disguised his assets could be admissible for one of two purposes: as direct evidence of the crimes with which Vaughn was charged, or as evidence that Vaughn was engaged in other unsavory activities at some other time. We conclude that neither of these purposes can justify admission of this evidence in the circumstances of this case.

Near the beginning of the trial, the government presented four women, each of whom testified that Vaughn took her to a car dealer (or a motorcycle dealer, in one case), where he purchased a vehicle but asked her to title it in her name. Afterwards, each testified, she rarely if ever saw the vehicle again. All of these transactions took place before February 1993, the date of the first possession incident involved in this case, and the vehicles involved had no discernible connection to the drugs Vaughn was charged with possessing. (Accordingly, we are...