US v. Jones

• Citation: 601 F.3d 1247
• Decision Date: 02 April 2010
• Docket Number: No. 08-16999.,08-16999.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deon Monroe JONES, a.k.a. Johnny Lee Jones, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

601 F.3d 1247

UNITED STATES of America, Plaintiff-Appellee, v. Deon Monroe JONES, a.k.a. Johnny Lee Jones, Defendant-Appellant.

No. 08-16999.

United States Court of Appeals, Eleventh Circuit.

April 2, 2010.

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Catherine McKenzie Bowman (Court-Appointed), Bowman Law Office, LLC, Julie Wade, Wade Law Firm, Savannah, GA, for Defendant-Appellant.

James C. Stuchell, R. Brian Tanner, Savannah, GA, for Plaintiff-Appellee.

Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

Deon Monroe Jones ("Mr. Jones") appeals his convictions and sentences on four counts: (1) knowing possession of a firearm and ammunition by a convicted felon on June 1, 2004, in violation of 18 U.S.C. § 922(g)(1); (2) knowing possession of a firearm and ammunition by a controlled substances user on June 1, 2004, in violation of 18 U.S.C. § 922(g)(3); (3) knowing possession of ammunition by a convicted felon on June 18, 2004, in violation of 18 U.S.C. § 922(g)(1); and (4) knowing possession of ammunition by a controlled substances user on June 18, 2004, in violation of 18 U.S.C. § 922(g)(3). Mr. Jones raises seven issues on appeal. We will discuss all but one here.¹ After review and oral argument, we affirm in part, reverse in part, vacate in part, and remand for further proceedings.

I.

In the early morning of June 1, 2004, David Buskirk ("Mr. Buskirk") was shot with a .38 caliber bullet outside his home in Savannah, Georgia. Detective Robert Von Lowenfeldt ("Detective Von Lowenfeldt") led the investigation into Mr. Buskirk's shooting, and, over the course of his investigation, identified Mr. Jones as a prime suspect. On June 18, 2004, Detective Von Lowenfeldt helped execute a warrant for Mr. Jones's arrest, for violation of his parole. During a search of Mr. Jones's bedroom at his mother's house, the police found twelve .38 caliber rounds and four.44 caliber rounds.

On June 23, 2004, Detective Von Lowenfeldt conducted a videotaped interview of sixteen-year-old Kelly Bigham ("Ms. Bigham"). In their conversation, Ms. Bigham informed the detective that she had sold a.38 revolver to Mr. Jones. She described how she and Mr. Jones drove to a nice area of town, where Mr. Jones shot a white man. After the interview, Ms. Bigham directed Detective Von Lowenfeldt to the street on which Mr. Buskirk lived, and she demonstrated how Mr. Jones got out of the car, fired at the man, and got back into the car.

On February 8, 2006, Mr. Jones was indicted on two counts: possession of twelve rounds of .38 special ammunition and four rounds of .44 caliber ammunition, on June 18, 2004, (1) as a convicted felon and (2) as a user of controlled substances. A jury found him guilty on both counts, but Mr. Jones successfully appealed these convictions. On Mr. Jones's first appeal, we concluded that the district court's instructions to the jury were unduly coercive. United States v. Jones, 504 F.3d 1218, 1219 (11th Cir.2007). For that reason, we reversed Mr. Jones's convictions and remanded for a new trial. Id. at 1220.

In late November 2007, shortly after the mandate was issued, the government received a letter from Gregory Seabrook ("Mr. Seabrook"), who was incarcerated with Mr. Jones. Mr. Seabrook offered to provide information divulged by Mr. Jones about his role in the Buskirk assault and about Mr. Jones's subsequent arrest. Over the following months, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") investigated these matters. ATF agents interviewed Mr. Seabrook and other inmates, who said Mr. Jones had confided in them.

Armed with this freshly acquired evidence, the government brought new charges against Mr. Jones. On December 13, 2007, a federal grand jury returned a Superseding Indictment, adding Counts One and Two and reindicting as Counts Three and Four the two crimes charged in the original indictment. After a second trial, a jury convicted on all four counts. At sentencing, the district court merged Count One with Two and Count Three with Four. Evaluating the 18 U.S.C. § 3553(a) factors, the district court noted the seriousness of the offense, Mr. Jones's "sinister nature" and criminal history, the need to provide just punishment for the offense, his lack of remorse, and the great risk he posed to society. Having stated these reasons, the district court varied from the Sentencing Guidelines' applicable sentencing range of 130 to 162 months and sentenced Mr. Jones to 200 months imprisonment. Mr. Jones timely appealed.

II.

Mr. Jones makes the following arguments on appeal: (1) that the delay in bringing him to trial violated the Speedy Trial Act; (2) that the counts of the Superseding Indictment are multiplicitous; (3) that the counts added by the Superseding Indictment are the product of prosecutorial vindictiveness; (4) that the district court erred when it admitted a videotaped interview of Ms. Bigham as past recollection recorded; (5) that the government's nondisclosure of certain documents violated the Jencks Act and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (6) that there was insufficient evidence to support a conviction on any of the counts.

A.

We are first required to determine whether the delay in bringing Mr. Jones to trial amounts to a violation of the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (the "Act"). This Court reviews de novo the denial of a motion to dismiss for violation of the Speedy Trial Act. United States v. Harris, 376 F.3d 1282, 1286 (11th Cir.2004).

When a defendant successfully appeals his conviction, the Speedy Trial Act allows only seventy days between the date that the district court receives the mandate and the date the defendant's retrial begins. United States v. Lasteed, 832 F.2d 1240, 1243 (11th Cir.1987); see also 18 U.S.C. § 3161(e). New charges added by a superseding indictment do not reset the speedy-trial timetable for offenses either charged in the original indictment or required under double jeopardy principles to be joined with such charges. United States v. Young, 528 F.3d 1294, 1296 (11th Cir.2008).

The Act "excludes from the 70-day period days lost to certain types of delay." Bloate v. United States, ___ U.S. ___, 130 S.Ct. 1345, 1351, 176 L.Ed.2d 54 (2010). Specifically, "the eight subparagraphs in subsection (h)(1) address the automatic excludability of delay generated for certain enumerated purposes. Thus, we first consider whether the delay at issue in this case is governed by one of these subparagraphs." Id. at 1352.

When conducting the speedy-trial calculus, a court should not include "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(D). Also relevant to this case, subsection 3161(h)(1)(H) provides for exclusion of "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." Id. § 3161(h)(1)(H). "In calculating includable time, both the date on which an event occurs or a motion is filed and the date on which the court disposes of a motion are excluded." United States v. Yunis, 723 F.2d 795, 797 (11th Cir.1984).

The district court must promptly dispose of pretrial motions for which no hearing is required. 18 U.S.C. § 3161(h)(1)(D). "Prompt disposition" "depends upon when the court takes the motion `under advisement' for purposes of § 3161(h)(1)(H)." United States v. Davenport, 935 F.2d 1223, 1228 (11th Cir. 1991). A motion is "under advisement" once the parties have filed the last piece of necessary information, at which point the court has thirty days to act before the speedy-trial clock restarts. Id.

On November 21, 2007, the district court received this Court's mandate, reversing Mr. Jones's convictions and remanding for a new trial. From that date, the government had seventy days to bring Mr. Jones to trial. See Lasteed, 832 F.2d at 1243. On December 13, the government filed its Superseding Indictment, which did not cause the clock to reset on the original charges. See Young, 528 F.3d at 1296.

On December 21, twenty-nine nonexcludable days after receipt of the mandate, Mr. Jones filed two motions, one to dismiss multiplicitous counts and one to dismiss the Superseding Indictment. These tolled the speedy-trial clock until the government responded and an additional thirty days elapsed. On January 9, 2008, before that period expired, Mr. Jones filed a slew of new motions. Both parties agree that these motions required a hearing before a magistrate judge. Accordingly, the speedy-trial clock remained stopped at twenty-nine days and would not restart until the magistrate judge held a hearing, received all necessary documents, and either resolved the pending motions or allowed an additional thirty days to pass. See United States v. Dunn, 345 F.3d 1285, 1292 (11th Cir.2003).

After the March 26, 2008 hearing, the magistrate judge referred two motions to the district court and requested further briefing on two others. The magistrate judge issued his findings orally at the hearing, and entered a written minute order on March 28, 2008. Also on March 28, Mr. Jones filed a Motion for In Camera Hearing, challenging the magistrate judge's ruling on his Motion for Discovery of Exculpatory Evidence. Mr. Jones argued that because there was a "strong suggestion that Brady material exists, the trial court should hold an in camera review to determine if the suppression of such material is proper." The government filed its response on April 9, 2008. On June 23, 2008, the district court denied the motion without holding or even scheduling a hearing.

In deciding Mr. Jones's Renewed Motion to Dismiss the Superseding Indictment for Speedy Trial Violation, the district...