UNITED STATES OF AMERICA v. KENNETH WAYNE HART, a/k/a Wayne Hawkins, a/k/a Hawk, a/k/a Big Daddy, a/k/a Billy Reds, a/k/a Billy Red Hart
No. 20-4534
United States Court of Appeals for the Fourth Circuit
January 25, 2024
PUBLISHED
Argued: October 26, 2023
Decided: January 25, 2024
Before KING, THACKER, and RICHARDSON, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge King and Judge Thacker joined.
ARGUED: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellant. Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jonathan Knowles, BURNHAM & GOROKHOV PLLC, Washington, D.C., for Appellant. Jonathan F. Lenzner, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
RICHARDSON, Circuit Judge:
Kenneth Hart appeals his convictions for drug dealing, sex trafficking, and witness tampering. He argues that the government violated the Speedy Trial Act as to his witness-tampering conviction by failing to indict him within thirty days of his arrest for that offense. He also challenges the introduction of certain evidence at trial. We agree with Hart that the government violated the Speedy Trial Act on the witness-tampering conviction. But we reject his evidentiary challenges. Accordingly, we vacate Hart‘s witness-tampering conviction (Count Five) and remand for resentencing on all remaining counts.
I. Background
Kenneth Hart once profited from the unfortunate intersection of drugs and sex trafficking. Along with an associate, he sold heroin and crack cocaine out of his condo and nearby locations. He also ran a prostitution ring involving several women. To keep his victims in line, Hart gave them drugs in exchange for their services. And when they resisted, he resorted to verbal abuse and physical violence. Eventually, the law caught on and served one of his associates with a federal grand jury subpoena. Hart found out and told her not to attend. When she didn‘t listen, he physically assaulted her and threatened to kill her son.
Hart soon reaped what he sowed. On April 26, 2017, he was federally charged with witness intimidation, in violation of
In the months that followed, Hart consented to many more continuances, thereby pushing his trial date by over two years. During this time, the grand jury for the District of Maryland returned a second superseding indictment. The indictment added four new charges: conspiracy to distribute
Hart eventually became concerned that the government violated his speedy-trial rights. So on June 26, 2019, he sent a letter about this to the district court. After considering the matter, the court issued an opinion on July 23, 2019, explaining why it granted the many continuances. Yet the court only discussed the continuances that pushed back the trial date; it did not address why it excused the delayed filing of the original witness-tampering indictment.
Hart subsequently filed a pro se motion to dismiss all charges on January 23, 2020. He asserted that the government violated his speedy-trial rights, including his right to be indicted within thirty days of his appearance. The district court later denied this motion at a hearing held on February 25, 2020. But rather than providing fresh reasons for the indictment delay, the court merely pointed to its July 23 opinion, even though that opinion did not address this particular delay.
Hart‘s trial finally started on March 3, 2020. Over the course of the proceedings, the government presented testimony from Hart‘s co-conspirator, one of his drug customers, and several of his victims, as well as physical evidence of his drug dealing. The trial lasted seven days, and at its close, the jury convicted Hart on all counts. The district court then sentenced Hart to 300 months in prison. This timely appeal followed.
II. Discussion
On appeal, Hart argues that the district court erred by (1) denying his motion to dismiss the indictment for violating the Speedy Trial Act and (2) admitting certain prejudicial evidence at trial. We find that the government failed to indict Hart for witness tampering within the Speedy Trial Act‘s thirty-day window. But we reject Hart‘s evidentiary challenges. So we vacate only Hart‘s witness-tampering conviction (Count Five) and remand for resentencing on the four counts added by the superseding indictment.
A. Speedy Trial Act
The Speedy Trial Act requires the government to indict a criminal defendant for an offense within thirty days of the date he was arrested for that offense.
The government offers two reasons why this delay is excluded.2 First, the government argues that the delay is automatically excluded because the continuance was granted to allow for plea negotiations. Second, the government argues that the delay is excluded because it served the ends of justice. We address each claim in turn and find that neither provides safe harbor for the delay. So we reverse the district court and vacate Hart‘s conviction on Count Five for violating the Act.
1. Plea negotiations are not automatically excluded as “other proceedings.”
The government first argues that the delay is automatically excluded under
184, 188 (4th Cir. 2014). And the parties clearly requested the May 30 continuance to negotiate a plea deal. So the government thinks Hart‘s is a slam-dunk case for an automatic exclusion.
But there‘s one problem. In Bloate v. United States, 559 U.S. 196 (2010), the Supreme Court explained the relationship between the general “other proceedings” language in (h)(1) and the more specific examples that follow this language. Id. There, the government argued before the Court that time spent preparing pretrial motions is automatically excluded under (h)(1). Id. at 204. But the Court observed that this category of pretrial motions is already covered in subparagraph (h)(1)(D), which only excludes “delay[s] 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. at 205 (emphasis added) (quoting
Bloate‘s reasoning has clear implications for Hart‘s case. The government wants us to find that a delay caused by plea negotiations is excluded under (h)(1)‘s broad umbrella. But subparagraph (h)(1)(G) already covers delays involving plea agreements, and it only excludes them once the court begins to consider a proposed agreement. See
Because Leftenant and Keita are out of step with Bloate, their holdings must be abandoned. “Where ‘prior decisions’ in our Circuit use ‘reasoning inconsistent with Supreme Court authority,’ ‘we are not bound to follow them.‘” Rose v. PSA Airlines, Inc., 80 F.4th 488, 504 (4th Cir. 2023) (quoting United States v. Banks, 29 F.4th 168, 178 (4th Cir. 2022)). And although Keita was decided after Bloate, Keita did not consider the effect of Bloate, so it cannot bind us.3 Id. Notwithstanding our prior holdings, therefore, time spent engaging in plea negotiations is not automatically excluded under the Act. The delay in filing Hart‘s indictment is not automatically excluded on this basis.
2. The district court did not make an ends-of-justice finding.
The government alternatively argues that the delay is excluded because it served the ends of justice. Under the Act, a court may exclude a period of delay if two things happen: (1) the “judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial“; and (2) “the court sets forth, in the record of the case, either orally or in writing, its reasons for [the] finding[s].”
The government argues that the ends of justice supported the district court‘s decision to grant the May 30 continuance. But there is no evidence on the record that the district court contemporaneously conducted ends-of-justice balancing or ever set forth the reasons for that finding. The May 30 order did not mention an ends-of-justice finding. See Smart, slip op. at 8. Neither did the consent motion. Instead, the order granted the continuance based on a lack of opposition and “good and sufficient cause.” J.A. 24. But the court never explained—and the motion never made plain—what good and sufficient cause means, nor why it existed. So based on the order and motion, we cannot determine whether the court contemporaneously conducted the ends-of-justice balancing. See Smart, slip op. at 8. Nor did the court ever provide the reasons for making an ends-of-justice finding for the delayed indictment. See id. at 8–9. While it explained why it excluded time after the indictment (including general discussions about post-indictment delays based on ongoing plea negotiations), it never explained why it excluded the time before filing the indictment pursuant to an ends-of-justice inquiry. And when the court later ruled on Hart‘s motion to dismiss, it merely pointed back to its earlier discussion of post-indictment delays, even though that response never addressed the delay in the indictment‘s filing. Based on this record, therefore, we conclude that the delay following the May 30 continuance is not excluded under
3. Because the filing of the indictment exceeded the speedy-trial clock as to Count Five, that count alone must be vacated.
The period of delay following the May 30 continuance is not excluded from the speedy-trial clock. This means that the government took sixty days to indict Hart for the
witness-tampering charge—a clear violation of the Act‘s thirty-day window. So the only remaining question is what we should do about this violation.5
The Act supplies a clear answer: If a complaint charges an individual for an offense but fails to indict him within thirty days of his arrest, the charged offense
Hart still thinks that the proper remedy is a new trial on all counts. He argues that the district court‘s failure to dismiss his complaint unfairly prejudiced his other convictions by allowing the introduction of irrelevant and highly prejudicial testimony. At trial, the government offered testimony from Crystal Smith, who claimed that Hart physically
assaulted her and threatened to kill her son after she was served with a federal grand jury subpoena. Hart argues that these accusations were relevant to Count Five but were not relevant to any other count. And given the violent content of Smith‘s testimony, he thinks her words unduly prejudiced the jury against him on the remaining counts. To Hart, only a new trial can remedy this error.
Although not stated in these terms, Hart essentially advances a “prejudicial spillover” challenge. A prejudicial spillover challenge asks us to “determine whether evidence admitted to support a reversed count prejudiced the remaining counts to warrant their reversal.” United States v. Hornsby, 666 F.3d 296, 311 (4th Cir. 2012); see also United States v. Rooney, 37 F.3d 847, 855 (2d Cir. 1994). To prevail under this theory, a defendant must show that the challenged evidence would have been inadmissible at trial without the vacated count and prejudiced his convictions on the remaining counts. See Hornsby, 666 F.3d at 311–21; United States v. Barringer, 25 F.4th 239, 247–48 (4th Cir. 2022). If Hart makes this showing, then we must order a new trial on all remaining counts free of the evidentiary taint.
Yet Hart cannot make this showing. Hart claims that Smith‘s testimony would have been inadmissible at trial on the remaining counts. But we have repeatedly held that evidence of witness intimidation is admissible under Rule 404(b) to prove consciousness of guilt and criminal intent. See United States v. Hayden, 85 F.3d 153, 159 (4th Cir. 1996) (“Evidence of witness intimidation is admissible to prove consciousness of guilt and criminal intent under Rule 404(b), if the evidence (1) is related to the offense charged and (2) is reliable.“); United States v. Young, 248 F.3d 260, 272 (4th Cir. 2001). Hart assaulted Smith to keep her from testifying before a grand jury and offering law enforcement information about his controlled-substances distribution (which became Count One). So Smith‘s witness-intimidation testimony would have been admissible at trial for this charge to prove his guilt and criminal intent. There was thus no prejudicial spillover at Hart‘s trial.
B. Evidentiary Challenges
Besides his speedy-trial challenge, Hart contests the introduction of certain evidence at trial. We address each issue in turn and find that the district court committed no error.
1. Shipley‘s testimony about Hart‘s physical violence
First, Hart contends that the district court erred by permitting certain testimony from Anna Shipley, his co-conspirator and former co-defendant. See
We review a district court‘s decision to admit evidence for abuse of discretion. United States v. Benson, 957 F.3d 218, 228 (4th Cir. 2020). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”
The district court did not abuse its discretion by permitting Shipley‘s testimony. Hart was charged, among other things, with conspiring to use and using force, threats of force, and coercion to control the victims of his sex trade. His use of force against Shipley was relevant to these charges because it helped explain how he controlled others. It also increased the likelihood that Hart used force against his victims, since Shipley‘s testimony demonstrated his willingness to commit assault at the slightest provocation. And, as the district court found, his actions were emblematic of the “atmosphere of violence” that kept
his victims in line.8 J.A. 286. So Shipley‘s
Hart also argues that even if Shipley‘s testimony was relevant, the district court abused its discretion by not excluding it under Rule 403. A district court “may exclude relevant evidence if its probative value is substantially outweighed by the danger of . . . unfair prejudice.”
Hart first contends that we must reverse the district court because it never mentioned Rule 403. But “[a]s long as the record as a whole indicates appropriate judicial weighing, we will not reverse for a failure to recite mechanically the appropriate balancing test.” United States v. Lewis, 780 F.2d 1140, 1142 (4th Cir. 1986); see also United States v. Blevins, 960 F.2d 1252, 1256 (4th Cir. 1992) (“An appellate court . . . may affirm a judgment where the record reveals that the . . . statements were plainly admissible, whether or not a detailed rationale for admitting the statements has been stated by the trial court.“). So as long as the record supports the district court‘s decision to admit Shipley‘s testimony, we will not reverse it for failure to mechanically cite the Rule 403 balancing inquiry.
The record provides adequate support for the district court‘s decision to permit Shipley‘s testimony. As explained above, Hart‘s violent treatment of Shipley was relevant to the underlying sex-trafficking charges. And any risk of prejudice was likely minimal. Over the course of the trial, several witnesses (including several of Hart‘s victims) testified to Hart‘s use of physical violence against them, often in great detail. Given this mountain of inflammatory (yet admissible) evidence, it is unlikely that momentary references to other assaults unduly prejudiced the jury.9 Hence, any prejudice caused by Shipley‘s testimony was minimal and did not substantially outweigh its probative value.
2. Shipley‘s appearance in prison garb
Hart next argues that the district court erred by permitting Shipley, his former co-defendant, to testify at trial wearing prison garb. Shipley testified that she pleaded guilty to conspiring with Hart and was incarcerated while awaiting sentencing. The district court expressed its displeasure at Shipley‘s prison attire. See, e.g., J.A. 167 (“She should have been brought here not in prison garb. . . . She
Hart cannot clear this high bar to relief. In Estelle v. Williams, the Supreme Court held that due process prohibits courts from compelling a defendant to appear at trial in prison clothing. 425 U.S. 501, 504–05 (1976). But the Court has never applied this principle to a testifying co-defendant who pleaded guilty. Cf. United States v. Adams, 1 F.3d 1566, 1584 (11th Cir. 1993). Nor have we. See United States v. Partman, 568 F. App‘x 205, 209 (4th Cir. 2014). And for good reason. Estelle turned on the potential effect an accused‘s prison attire can have on the basic presumption of innocence that must be
afforded to him. See id. at 504–05. But there is no presumption of innocence applied to Shipley. She was no longer merely an accused, having pleaded guilty. And here, Shipley properly testified that she pleaded guilty and was incarcerated. Her attire added nothing: “No prejudice can result from seeing that which is already known.” See id. at 507 (quoting United States ex rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir. 1973)).
We therefore discern no plain error in the district court‘s choice to allow Shipley to wear prison garb while testifying.
3. Shipley‘s testimony about Hart‘s criminal history
Finally, Hart argues that the district court erred by denying his motion for a mistrial after Shipley referenced a time when Hart had just gotten out of jail. Evidence of a defendant‘s criminal convictions is generally inadmissible at trial.11 See United States v. Johnson, 610 F.2d 194, 196 (4th Cir. 1979);
the court instructed the jury to consider only the charges for which Hart was indicted. Hart argues that by denying his motion for a mistrial, the district court prejudiced his defense by improperly permitting something about his criminal history to be inferred from his incarceration.
We conclude that Shipley‘s indirect references to Hart‘s criminal background by referencing when Hart got out of jail did not prejudice the jury‘s verdict. First, Shipley‘s statements were brief and quickly interrupted by the government—no reference to Hart‘s jail time or other charges was ever again made during the trial. See United States v. Vogt, 910 F.2d 1184, 1193 (4th Cir. 1990). Second, there is no evidence that the government purposefully elicited these statements. See Dorsey, 45 F.3d at 817; Johnson, 610 F.2d at 197. To the contrary, the government immediately interrupted Shipley, explained that it had repeatedly instructed her not to mention these events, and attributed the mistake to her nerves.12 Third, the government introduced overwhelming evidence of Hart‘s guilt at trial, including many witnesses and various pieces of physical evidence. So Shipley‘s momentary slip-up was harmless. See Dorsey, 45 F.3d at 817. Finally, the district court later instructed the jury not to consider Hart‘s past actions unrelated to the charges at issue. See id. at 818. We follow a strong presumption that jurors follow the courts instructions, and “we can only reverse if there is some specific reason to doubt that the jury adhered to the district court‘s limiting instruction.” Benson, 957 F.3d at 230. Hart offers “no reason to conclude the jury disregarded [it].” Id. For these reasons, Shipley‘s statements did not prejudice the outcome of Hart‘s case.
Hart stresses that the district court did not immediately give curative instructions. But “if [Hart] wanted an immediate curative instruction, he should have asked the court for one.” United States v. Wallace, 515 F.3d 327, 331 (4th Cir. 2008). Plus, the court had Shipley clarify her answer without referencing Hart‘s criminal history, which was likely an attempt to remedy the error without drawing too much attention to what Shipley said. Cf. Dorsey, 45 F.3d at 818
(“[T]he district court‘s curative instructions properly informed the jury of the types of evidence that they should and should not consider in reaching its verdict, without unduly emphasizing the existence of any
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In sum, we affirm the district court‘s rulings on Hart‘s various evidentiary challenges. But we reverse the court‘s denial of Hart‘s motion to dismiss Count Five and vacate his conviction on that count. We also vacate his sentence and remand for resentencing on all remaining counts. See Velasquez, 52 F.4th at 143.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED
21
Notes
(A) delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant;
(B) delay resulting from trial with respect to other charges against the defendant;
(C) delay resulting from any interlocutory appeal;
(D) 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;
(E) delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure;
(F) delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant‘s arrival at the destination shall be presumed to be unreasonable;
(G) delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government; and
(H) 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.