United States v. Brown

• Decision Date: 24 March 2016
• Docket Number: Nos. 14–6543,14–6544.,s. 14–6543
• Citation: 819 F.3d 800
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jason Curtis BROWN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

819 F.3d 800

UNITED STATES of America, Plaintiff–Appellee,

v.Jason Curtis BROWN, Defendant–Appellant.

Nos. 14–6543

14–6544.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 3, 2015.

Decided and Filed: March 24, 2016.

ARGUED:Luke Schamel, University of Michigan Law School Federal Appellate Litigation Clinic, Ann Arbor, Michigan, for Appellant. Neeraj K. Gupta, United States Attorney's Office, Lexington, Kentucky, for Appellee. ON BRIEF:Melissa M. Salinas, Office of the Federal Public Defender, Toledo, Ohio, Dennis G. Terez, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Neeraj K. Gupta, Charles P. Wisdom, Jr., United States Attorney's Office, Lexington, Kentucky, for Appellee.

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

CLAY

, J., delivered the opinion of the court in which MOORE, J., joined, and GILMAN, J., joined in part. GILMAN, J. (pp. 830–34), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY

, Circuit Judge.

Following a jury trial, Defendant Jason Brown was convicted of four counts of distributing heroin and crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

, and sentenced to 288 months' imprisonment. On appeal, Brown argues that: (1) the district court violated the Speedy Trial Act (the "STA" or "Act"), 18 U.S.C. § 3161 et seq.,¹ when it initiated his trial with the intent of immediately recessing after conducting voir dire and empaneling a jury; (2) his trial attorney rendered ineffective assistance of counsel because he failed to move to dismiss the indictment based on this alleged violation of the STA; and (3) his due process rights were violated when he was excluded from participating in certain pretrial scheduling conferences between defense counsel, government counsel, and the district court. Brown also contends that if this Court vacates his convictions at trial based on the alleged STA violation, we should also vacate the district court's revocation of his supervised release, which resulted in a separate, 24–month sentence to run consecutively with his 288–month sentence. For the following reasons, we VACATE Brown's convictions at trial based on the Speedy Trial Act violation below and REMAND to the district court for a determination as to whether the indictment should be dismissed with or without prejudice based on the factors articulated in the Act, 18 U.S.C. § 3162(a)(2). We AFFIRM the district court's revocation of Brown's supervised release.

BACKGROUND

On December 12, 2013, Brown was indicted on four counts of distributing heroin and crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

. Brown was arraigned, entered his initial appearance, and pleaded not guilty before a magistrate judge on February 25, 2014. A jury trial was set for April 28, 2014.

On April 10, 2014, Brown's court-appointed counsel moved to withdraw at Brown's request. Four days later, the district court granted the motion to withdraw and vacated the April trial date, scheduling a new trial date for June 9, 2014.

Trial was delayed a second time by virtue of Brown's May 8, 2014 motion for a psychiatric examination, wherein Brown asserted that he may have been insane at the time of the alleged drug offenses.

Brown also orally moved for a competency examination. In an order issued on May 13, 2014, the court granted both of Brown's motions, vacated the June 9 trial date, and ordered the government to file a status report to assure correct calculations under the Speedy Trial Act. The same day, the court issued a separate order stating that the period between Brown's filing of the May 8 motion and the completion of Brown's psychiatric and competency examinations would be excluded from the Speedy Trial Act's 70–day time limit pursuant to 18 U.S.C. § 3161(h)(1)(A)

and 18 U.S.C. § 3161(h)(1)(D). Following Brown's examinations, as well as a competency hearing held on August 19, the district court found that Brown was competent to stand trial and set trial for September 8, 2014.

On September 3, 2014, five days before the scheduled trial date, the government filed a motion to continue the trial. In its motion, the government indicated that it intended to call United States Probation Officer Steven Phillips as a witness for the purposes of testifying as to two important issues: identifying Brown and discussing Brown's flight after he learned of the warrants against him based on the counts in the indictment. According to the government, Phillips was planning to participate in two separate training events during the week of the trial, and these trainings had been scheduled long before the court reset the trial date for September 8. On this basis, the government requested a brief continuance to the next available trial date and requested that the court discuss possible dates with counsel over the telephone.

Brown, who was in custody, did not attend the same-day teleconference between defense counsel, government counsel, and the court. At this initial teleconference, government counsel informed the court that Officer Phillips would be instructing two out-of-state trainings scheduled during the week of trial. Although government counsel was not certain about the exact dates of Phillips' trainings, he believed that they would take place on the Monday (September 8) and Wednesday (September 10) of that week.

At the outset, the court noted that it had trials scheduled for September 15, September 22, and September 29, 2014, and opined that it might be able to accommodate Phillips' trainings by permitting the government to call its witnesses out of order. Government counsel said that he had discussed this option with Phillips, but expressed doubt that such an arrangement would be workable, indicating that Phillips' training schedule took priority with his supervisors and that Phillips was therefore unsure whether he would be "allowed to attend" the trial. Government counsel also admitted, "Some of this is my fault, Judge. I missed a week of prep. I was out for a week after [the trial was rescheduled] with a son in the hospital, and that kind of put me late getting a hold of Mr. Phillips," an "important" government witness. (R. 87, Tr. of Sept. 3 Teleconf., PageID# 328).

When prompted by the court, defense counsel conceded that he had not spoken with Brown about the government's motion for a continuance, but stated that "we're still within the speedy trial limit," "things happen," and "sometimes we don't have any control over [witnesses]." (Id. at 329). Defense counsel also agreed to make himself available for trial the following week, September 15, indicating that his state-court matter scheduled for September 16 could probably be continued because his client was not in custody. However, government counsel stated that his recently-hospitalized son was having surgery on September 15 and that he was "hoping to attend." (Id. at 330).

At this point, the district court asserted that it did not think it could move the September 8 trial date because the court had trials scheduled for, and government counsel was unavailable on, September 15. The court also stated that it had not yet "looked at the clock for the speedy trial purposes," and that it did not have the calculations for excludable time under the Act at its "beck and call." (Id. at 330).

Without a discernable pause, at least on review of the cold record, the court then opined that a possible solution would be selecting a jury on September 8, and then taking a recess before reconvening for a two-day trial on September 17. The court reasoned that although such a plan was "not the most advantageous thing to do," it had several benefits, including (1) avoiding a situation wherein defense counsel made concessions on behalf of Brown without consulting him due to his absence from the teleconference, (2) permitting Officer Phillips to appear as a witness at trial, and (3) accommodating the government's other witnesses who would have otherwise flown in early for trial. (Id. at 331). However, upon learning that government counsel did not know how long his son's surgery would take, the court opined, "Frankly, the easiest thing to do here would be to deny the motion, keep the case set, and just tell Mr. Phillips [he's] going to have to miss one of those trainings, not two." (Id. at 331–32). The court also stated, "I'm just trying to be fair to everyone here." (Id. at 332). When the court asked whether the government would be prepared to try the case on September 8 if the motion for a continuance was denied, government counsel replied, "We'll try the case the day the case is called for trial, whether we have witnesses, whether we don't have witnesses.... But that's the point of the matter ... we'll be there to try the case when the case has to be tried. I was attempting to assist [Officer Phillips]." (Id. at 332–33).

Shortly thereafter, the court went off the record. After going back on the record, the court asked both government and defense counsel whether they could begin trial on September 22. They answered in the affirmative. Accordingly, the court orally granted the government's motion and continued the trial date by 14 days, from September 8 to September 22.

At the time the court granted the motion for a continuance, defense counsel indicated that he did not think that Brown would object to the continuance, but asserted that he would need to talk to Brown to be certain. In response, the court instructed defense counsel to "file something of record" the following day once he had spoken with his client.

The next day, Brown filed a written response opposing the government's motion for a continuance. In his opposition, Brown argued that the government had known of Phillips since February 2013 and therefore had "plenty of time to investigate" and determine the "necessity and materiality" of this witness and his testimony. (R. 46, Notice of Filing, PageID# 94; see also R. 86, Tr. of Sept. 4 Teleconf., PageID# 319). Brown also asserted that a continuance...