Lead Opinion
Opinion for the Court filed by Circuit Judge BROWN.
Opinion dissenting in part filed by Senior Circuit Judge WILLIAMS.
This case arises from a peculiar example of urban entrepreneurship — the drive-by drug bazaar. The essential components of these enterprises include a wholesaler with an appreciable stash of drugs (the “bag-man”), one or more retail.clerks to handle individual transactions (“runners”), and a handy supply of customers who wait in vehicles, engines idling, while the merchandise is delivered. At about 2:30 A.M. on March 3, 2004, Metropolitan police officers noticed (as one would later testify) “a long line of cars that appeared to be getting served by hand-to-hand transactions ... like a drive-through.” Trial Tr. 79, Oct. 13, 2004. One man “was standing on the curbside” while two others “were flagging down and running up to cars” bring
On appeal, Harris and Roundtree present one individual claim each and share two claims in common. Harris argues his trial counsel was ineffective for failing to raise a Speedy Trial Act claim. Roundtree argues the district court committed reversible error by curtailing testimony from favorable witnesses. Both defendants claim the trial judge’s ex parte contact with the deliberating jury prejudiced the verdict. And both defendants protest an approach to aiding and abetting that makes them liable for the quantity of five grams or more of crack cocaine. Finding that the district court did not violate the Speedy Trial Act, abuse its discretion in circumscribing direct examination, substantially and injuriously influence the jury’s verdict through its ex parte contact, or err in its approach to aiding and abetting, we affirm the judgment of the district court.
I
We begin in the pretrial period with Anthony Harris’s ineffective assistance of counsel claim. About six months went by between indictment and trial in this case. During that time, Antonio Roundtree was released on bail, while Anthony Harris, a young man with what the district court called a “ridiculous” criminal history (including fifteen convictions, among them contempt, escape, and violation of the Bail Act, and about twice as many arrests), was held as a flight risk. Sentencing Hr’g Tr. 26, Feb. 18, 2005. Arguing his lengthy pretrial detention violated the Speedy Trial Act, which requires that a criminal trial “shall commence within seventy days from the filing date ... of the information or indictment” barring periods of excludable delay, 18 U.S.C. § 3161(c)(1), Harris claims his trial counsel was constitutionally deficient for not saying so, and that but for this deficiency, a timely motion would have led to his release.
An ineffective assistance of counsel claim, according to the Strickland v. Washington two-prong test,
We begin with the threshold legal question of whether the delay between Harris’s indictment and trial violated the Speedy Trial Act at all, for it is difficult to see how counsel could be deficient for failing to protect speedy trial rights that were never infringed, and very difficult to see how a defendant could be prejudiced by the omission of a meritless motion. Harris was indicted on March 30, 2004; his trial began on October 13. Between those two dates, there is no dispute that pending motions tolled the Speedy Trial Act clock from May 10 through August 5 (when the court held a hearing and disposed of some motions) and September 30 through October 13 (when trial began). See 18 U.S.C. § 3161(h)(1)(F) (excluding “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”). This leaves ninety-six days either untolled or disputed.
The first issue is whether to regard this document as itself a pretrial motion tolling the speedy trial clock. This is easily resolved: Federal Rule of Criminal Procedure 12(b) (along with Rule 47) governs pretrial motions. Rule 12(b)(4)(A) creates
The more difficult question is when the clock started ticking again. At the August 5 hearing, which the court had scheduled at the outset (and then rescheduled) to hear pretrial motions, the district judge took up the Rule 609 issue and expressly stated his intention to rule on it. But the motion was lost in the shuffle that day and, since Harris did not take the stand, never revisited. The government thus characterizes the unresolved motion after the hearing as “under advisement,” which alludes to another exclusion on the Speedy Trial Act’s list, this one for “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.” 18 U.S.C. § 3161(h)(l)(J). In effect, the government reads subsections (F) and (J) together such that, when pretrial motions are filed and a hearing on them held, a first- period from filing to hearing is excluded under (F), and then a second period extending not longer than thirty days from the conclusion of the hearing to the resolution of the motions is excluded under (J).
So Harris retreats to an alternative argument, capitalizing on the Supreme Court’s reading of subsection (F): “Subsection (F), written in the disjunctive, excludes time in two situations. The first arises when a pretrial motion requires a hearing .... The second situation concerns motions that require no hearing and that result in a prompt disposition” pursuant to the thirty-day time limit in subsection (J). Henderson v. United States,
Thus we subtract, pursuant to 18 U.S.C. § 3161(h)(l)(J), thirty days after August 5 from Harris’s ninety-six-day total. The sixty-six remaining are within the Speedy Trial Act’s seventy-day limit. With no Speedy Trial Act violation, Harris can make no case for ineffective assistance of counsel.
II
We turn now to Antonio Roundtree’s claim that the district court improperly limited the testimony of three witnesses in his favor: his mother, his girlfriend (and son’s mother), and a co-worker, Lawrence Winters, from a charitable organization at which Roundtree volunteered. Roundtree did not call a fourth witness, this one an acquaintance from a fatherhood program, because the court’s sharp oversight made the testimony, in Roundtree’s judgment, “futile.” Appellants’ Br. 43.
Roundtree’s mother took the stand first. Counsel first asked her whether she saw her son on the night of his arrest (‘We talked in the kitchen.”) and whether he had a job (“He’s a move technician.”). Trial Tr. 28-29, Oct. 14, 2004. When counsel asked, “Does Antonio have a family? ... Describe his family for us,” the government objected, and both parties approached the bench:
THE COURT: You can make that objection right out in front of everybody. It’s irrelevant.... [A]re you going to put his character in issue?
[COUNSEL]: Yes. Squarely.
THE COURT: Well, the question is did he or did he not deal the drugs, period. It’s irrelevant.
Id. at 30. Counsel then quickly brought the examination to a close.
THE COURT: Is she a witness, an eyewitness to anything that happened that night?
[COUNSEL]: She dropped him off. In other words, Antonio keeps their child, he kept their child that day all day, and then they went to her house for the evening for dinner....
THE COURT: What does that have to do with this case? This is another way of putting on the evidence that he’s a good father and takes care of his child and all that. That’s irrelevant.... The evidence may refer to character for truthfulness or untruthfulness.
[COUNSEL]: And I’m getting there.
THE COURT: No, you’re not going to get there.... When and if he testifies and when and if his credibility is attacked, and when you can make a proffer that her testimony will go directly to his character for truthfulness, then you can put this witness on. But this business of showing that he’s a devoted husband and father, forget it.
[COUNSEL]: Well, can she at least establish she dropped him off at a certain time?
THE COURT: No. That’s irrelevant.
[COUNSEL]: He didn’t have any drugs on him at the time that she dropped him off.
THE COURT: How does she know that? ... I’ll let you save enough face by getting her off the stand to testify what time she dropped him off, period. That’s it.
Id. at 33-35. Again, the questioning came quickly to a close.
Lawrence Winters took the stand after Roundtree himself had testified to his innocence (“I was talking to [friends] ... [a]nd ... police just came up,” id. at 41) and had his credibility challenged on cross-examination (“Now I’m confused, because you just said you didn’t see [Harris] that night,” id. at 54). The court twice interrupted Winters’s testimony. When counsel asked if Winters had been able to “form an opinion with regards to [Round-tree’s] truthfulness,” the court interjected: “Now, wait a minute, Counsel. We’re talking reputation testimony.” Id. at 65. When counsel asked about Roundtree’s reputation for truthfulness, the Court asked: “In what community? Among what people? I need a better foundation than that, Counsel. This is a very narrow question.” Id. at 66. Ultimately the witness testified that Roundtree is known for truthfulness “[a]mongst the people that [he] interacts with.” Id. The witness left the stand moments later, and Roundtree rested without calling the second character witness he had scheduled.
Roundtree makes three arguments on appeal. First, he claims the court wrongfully limited testimony from his mother and girlfriend geared to showing he had no drugs on the night in question and lacked the demeanor of a man about to deal drugs. Second, he claims the court prevented him from presenting testimony from all three witnesses (and the fourth he would have called but for the sharpness of the court’s oversight) that would have demonstrated his truthful character. And third, he makes the same claim for all his witnesses with respect to a second character trait, one he did not mention at trial but mentions on appeal: law-abidingness. The latter two arguments concern the district court’s exclusion of character evidence; we review for abuse of discretion. In re Sealed Case,
The district court’s toughest evi-dentiary rulings, those against the mother and girlfriend, show one persistent aim: to prevent testimony whose purpose was, in the court’s judgment, purely or mainly to cast Roundtree in the sympathetic light of a dedicated family man who spent the evening before his criminal adventure talking with his mother, playing with his son, and caring for his girlfriend. This eviden-tiary position is unassailable; it is familiar ground that while a criminal defendant can put character in issue, the evidence can concern only a “pertinent trait of character,” Fed. R. Evtd. 404(a)(1), and even then may be excluded if “its probative value is substantially out-weighed by the danger of unfair prejudice,” Fed. R. Evid. 403. United States v. Guardia,
Turning to Roundtree’s second argument, his attempt to demonstrate truthful character, the point is simply a nonstarter with respect to his mother’s and girlfriend’s testimony. Rule 608(a) of the Federal Rules of Evidence states: “[E]vi-dence of truthful character is admissible only after the character of the witness for truthfulness has been attacked .... ” Roundtree had at that time not yet taken the stand — and indeed, the court told Roundtree’s counsel: “When and if ... his credibility is attacked ... you can make a proffer that her testimony will go directly to his character for truthfulness ....” As to Winters, the court -permitted his testimony to Roundtree’s truthfulness, and at a bench conference had pre-approved the same testimony from the uncalled fourth witness. (When Winters testified, the court appears to have interjected to clarify whether he was giving opinion or reputation testimony, but the court did not indicate it was excluding either and in fact had pre-approved both at the bench conference.) Thus Roundtree’s only option is to argue that Winters’s reputation testimony was inadequate because he was not “permitted to offer testimony regarding the specifics of his interaction with Round-tree.” Appellants’ Br. 43. But of course a witness’s credibility may not be defended on the basis of specific acts of conduct. Fed. R. Evid. 608(b). The district court’s rulings on these matters were not abuses of discretion; indeed, they may have been nondiscretionary.
Roundtree claims the excluded testimony of all three witnesses, plus the uncalled fourth witness, would have demonstrated his character for law-abidingness. The district court twice indicated second thoughts on his own rulings in this regard. At a hearing after the close of all evidence but before closing arguments, the court said: “I may have called that game a little close on the defense .... There is a place for opinion testimony on general character of law abidingness, of course, but I did not understand, nor was any proffer made to me that that’s what was coming down.” Trial Tr. 83-84, Oct. 14, 2004. This is certainly true; there is no indication in the trial record of Roundtree’s counsel ever mentioning the character trait of law-abid-ingness. “And the other information about the defendant, just to paint him as a good son, father, caretaker, and so forth,” the court explained, “not only dealt with a trait of character that is not relevant to the crime involved in this case, but even if it were, I would have excluded it on 403 grounds.” Id. at 84. The court then invited Roundtree’s counsel to speak in order to “make your own record” on the issue. Id. At a status hearing four months later, the court returned to the theme: “On a review of the record, I think it is pretty clear that I did erroneously limit the defendant’s ability to call a reputation witness; that is, a character witness for the
Roundtree now seeks to treat these statements from the district court as admissions of error analogous to an opposing party’s concessions, closing off analysis on appeal and shifting this court to the position of examining admitted error for harmlessness. But a party’s concession wipes away a dispute and with it, in most cases, our purpose in hearing an issue. A district court’s second thoughts do not make an issue disappear. And in any case, our purpose is to evaluate the evidentiary rulings themselves, not the court’s later remarks about them. We cannot find fault with those rulings. Actually, the trial judge may have been a little hard on himself. He suggested the appellate court would have “to parse the exact words that were said.” We have done so. Roundtree indeed made no proffer concerning his character for law-abidingness; at trial, the only character trait he mentioned to the court was truthfulness. There is thus no erroneous ruling to complain of, and it is not clear what the district court could have done differently.
Ill
The jury began deliberating on Thursday afternoon. Shortly before close of business on Friday, the judge received a note from the foreman: “Can we be excused for the day? Juror 6 needs to leave to pick up her daughter. We are not unanimous!” (emphasis in original). As the judge later explained:
I went into the jury room, as is my practice, to release the jury.... I told them that they could go home, of course, and I complimented them on their hard work, and tried to say nothing else.
But the jury wanted to talk a little bit. I was reluctant, of course, to talk to them at all except to tell them that they could go home. But they began to say things like: “[A]t what point do we— what do we do if we can’t decide?” And I said, “Well, I can’t really talk to you about a subject like that without the attorneys being present.” “Well,” they said, “maybe we need some more instruction.” And I said, “Well, have a nice weekend. We’ll talk about it on Monday morning.”
Trial Tr. 2-3, Oct. 18, 2004. Immediately afterwards, the judge sent counsel an email stating he wished to speak to the jury Monday morning and asking counsel to attend. That day, before the jury filed in, the judge reported to counsel his interaction with the jury on Friday (as quoted above), stated his intention to read to the jury the anti-deadlock instruction recommended by the Council for Court Excellence, and stated his intention to reread the instruction inviting a verdict as to just one of the two defendants, if they were unable to reach a verdict on both. He invited objections, but almost immediately after that discussion began (with a question from the government), he received a note from the jury stating that it had a unanimous verdict. About half an hour into the morning, the jury pronounced both defendants guilty.
Harris and Roundtree claim the judge’s ex parte conversation with the jurors while they were deliberating constitutes revers
This is a sophisticated argument, but it must contend with the plain fact that when the jury asked to talk about the case outside the presence of counsel, the judge politely but utterly refused to do so. Presumptions may not entirely substitute for facts. We need not decide whether the ex parte contact was error.
The precedents defendants cite do not alter the manner of that review. In fact, those precedents largely concern an issue foreign to the instant case: the issue of how a judge may instruct a deadlocked jury. On the one hand, trial judges may encourage deadlocked jurors to reconsider their positions, Allen v. United States,
We therefore scrutinize the trial judge’s ex parte contact with the deliberating jury in the usual way, to determine harmlessness or prejudice. See id. at 476 (“It is well settled, however, that an ex parte communication by a judge to a jury in
rv
Harris and Roundtree join in a final argument, this one cast as a sufficiency of the evidence claim and aimed at their conviction under 21 U.S.C. § 841(b)(l)(B)(iii), giving a five-year minimum for possessing with intent to distribute the quantity of five grams or more of cocaine base. Drug dealing operations often employ “runners,” who don’t control the stash, and “holders,” who do; the runners help secure customers for the holders. United States v. Monroe,
There is law exactly on point in our circuit. In United States v. Monroe, a woman (Monroe herself) sold an undercover officer 0.41 grams of crack. The officer asked how he could get more. “I only have this one,” she said, “but you can get one from my buddy,” who was sitting beside her and had 13 grams of crack.
Harris and Roundtree attempt to argue their position under Monroe, interpreting the case to require that they “encourage[ ] the bag man not simply to possess contraband, but rather to possess more than five grams of contraband by creating an environment in which possession of that amount was profitable.” Appellants’ Reply Br. 23 (emphasis in original). But here, as in Monroe, a rational jury could find that the joint venture aimed, and defendants aimed, to distribute the entire stash. See Raper,
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The judgment of the district court is therefore
Affirmed.
Notes
. This circuit has spoken decisively to the issue of whether to exclude the particular day on which an indictment or pretrial motion is filed. United States v. Fonseca,
. If the district court requests additional material after the hearing, such as supplemental briefs, a third excludable period is added under subsection (F). Henderson v. United States,
. We would, however, caution the district court against ex parte contact with a deliberating jury in the future, even if the contact is intended merely to show gratitude for the
. It must be said that the judge in the instant case came perilously close to delivering the Council for Court Excellence charge, stating his intention to do so just before getting the jury's verdict note, which would have made this a very different case.
. We normally apply Kotteakos where trial errors do not implicate constitutional rights and the more stringent Chapman v. California standard,
Dissenting Opinion
dissenting in part.
Although I don’t think the court is necessarily wrong in its analysis of the Speedy Trial Act issue, I think the decision is at least questionable — and in the end avoidable because, even if there was a violation, trial counsel’s failure to raise the
* * *
The relevant facts are these: On May 10 the government gave notice of its intent to impeach Harris with his prior convictions, and Harris responded on May 12 by filing a motion asking the court to exclude any such evidence. The government filed no opposing papers. There the matters languished until August 5, when the court held a hearing to wrap up pending motions, namely, Harris’s requests for suppression and for exclusion of the Rule 609 evidence. At that time both Harris and the government made clear that as to the Rule 609 motion they intended to file no further papers, and sought neither argument nor an evidentiary hearing. The court on August 5 denied the suppression motion, but no one said anything on the merits of Harris’s effort to exclude the prior convictions. We may infer that at that point the Rule 609 motion was taken “under advisement,” a critical condition under the Act, if it wasn’t already under advisement.
According to the majority, the Act directs exclusion of the entire time from May 12, 2004 (when the defendant filed his motion in response to the government’s Rule 609 notice) until 30 days after August 5, the date of the omnibus hearing on pending pre-trial motions.
The relevant provisions of the Act are exclusions under subsections (F) and (J) of 18 U.S.C. § 3161(h)(1). Subsection (F) excludes
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.
Id. § 3161(h)(1)(F). Subsection (J) excludes
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)(l)(J). Because Harris makes no real objection to the exclusion of the period from May 12 to August 5, the only question is how much time thereafter, if any, can be excluded on the basis of the Rule 609 motion. That in turn depends on whether the motion came “under advisement” by the court on August 5 or sooner.
To be clear, my disagreement with the majority concerns only the treatment of the Rule 609 motion. The question is when that motion came under advisement. If that happened only on August 5, as the court says, another 30 days are excluded pursuant to subsection (J); if it came under advisement before August 5, then the 30 days afforded by subsection (J) started running before August 5. Depending on when that moment was, some or all of the 30 days available for the Rule 609 motion under subsection (J) may have run concurrently with the days concededly excluded between May 10 and August 5.
The Supreme Court in Henderson v. United States,
The court finds subsections (F) and (J) fully applicable by describing the trial court as having chosen “to address [the Rule 609] motion at a hearing,” i.e., the August 5 event. Majority Op. at 445. On that view the majority excludes the entire time from May 12 to August 5 under subsection (F) (a matter not very important in itself because of the defendant’s concession), plus 30 days after August 5 under subsection (J). A proceeding in which evidence is taken, or the merits of a motion are argued, qualifies as a “hearing” that triggers subsection (J), i.e., the moment of a motion’s coming “under advisement,” but it seems to me questionable to give that effect to a proceeding that features no substantive colloquy on the motion whatever, and occurs long after the filing of papers has drawn to a close. Why didn’t the motion come “under advisement” at the point where the government’s time to respond expired, which under D.D.C.Crim. R. 47(b) would appear to have occurred 11 days after Harris’s May 12 motion?
There is a path by which one might arrive at the court’s conclusion. Henderson divided the universe into motions requiring a hearing and ones requiring no hearing, but left unclear whether there might be other categories. WTiat of motions for which the need for a hearing is uncertain at the time of filing, or at the time when all further filings are complete or time-barred? Assuming Harris’s Rule 609 motion fell into that category until August 5, when it became clear that neither party felt any need for evidence, oral argument, or further papers, perhaps it was only at that moment that the court reasonably understood itself to have “receive[d] all the papers it reasonably expected],” thus triggering subsection (J). A difficulty with this analysis is that it leaves unexplained why the mere possibility of a hearing should stop the clock. Or must the defendant flag the government’s non-response in order to restart the clock? If the courts are to pursue this approach, they will have to invent all the subsidiary rules themselves, with no help from the Act.
Moreover, any such rationale for the court’s result is at least in tension with the First Circuit’s decision in United States v. Scott,
The [Act] makes no provision for what the district court did here: not decide the motion for 124 days and then retro*456 actively seek to explain the lack of prompt disposition by saying it needed additional filings, although it had taken the matter under advisement earlier. Nor does the [Act] make any provision for a district court effectively to take a matter under advisement for decision, but then to avoid the [Act’s] timeline by saying that matter was not under advisement within the meaning of the [Act]. We do not think the [Act] permits either course of action. Such an approach would undermine the purposes of the [Act],
Scott,
There are, to be sure, many complex permutations. For example, as the paragraph above suggests, the court may take a motion under advisement but later determine that further briefing or argument is necessary. In such a situation, if the court called for the submissions within 30 days, the period up to that call would be excluded under subsection (J), the time allotted for submissions would be excluded under subsection (F) (because the motion would no longer be under advisement), and only then would the 30-day subsection (J) time limit begin to run again (starting at zero, or subtracting the time elapsed before the call for more submissions?). Also, as other circuits have noted, the 30-day limit of subsection (J) might not apply rigidly when multiple motions are pending before a district court. See Scott,
Because of the uncertainty surrounding the alleged Speedy Trial Act violation, particularly the date on which the Rule 609 motion should be considered as having been taken “under advisement,” I would remand the case so that the district court could resolve the issue in the most economical way. The briefing suggests (though the trial court may know better) that this would be by first deciding whether, assuming there was a violation, Harris’s attorney’s conduct amounted to ineffective assistance under Strickland. Then, if necessary, the court would decide whether there was a Speedy Trial Act violation, taking into account whatever might shed light on the effects of the parties’ collective inactivity after May 12 with respect to the Rule 609 motion.