United States v. Odman ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
OWEN ODMAN, a/k/a Star, a/k/a  No. 01-4618
Owen Oddman, a/k/a Charles
Llewelyn,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-96-53)
Submitted: July 31, 2002
Decided: September 25, 2002
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William E. Loose, WILLIAM E. LOOSE ATTORNEY AT LAW,
P.A., Asheville, North Carolina, for Appellant. Robert J. Conrad, Jr.,
United States Attorney, Thomas R. Ascik, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
2 UNITED STATES v. ODMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Owen Odman appeals his conviction of conspiracy to distribute
and possess with intent to distribute at least five kilograms of cocaine
and 1.5 kilograms of cocaine base (crack) from November 1994 to
June 1996 in violation of 21 U.S.C. § 846 (2000), and the 360-month
sentence imposed by the district court. For the reasons explained
below, we affirm the conviction and sentence. We grant Odman’s
motion for leave to file a pro se supplemental brief, and deny his
motion to require the government to respond to the supplemental
brief.
Viewed in the light most favorable to the government, the evidence
at trial established that Odman and fellow conspirator Eric Wheeler
regularly bought kilograms quantities of cocaine powder in New York
City and transported it to Shelby, North Carolina, using a number of
couriers. Odman personally cooked the cocaine into crack in North
Carolina, provided both cocaine and crack to lower-level distributors
on credit, and employed other conspirators to collect money. After
one of his couriers was arrested at Newark Airport in New Jersey in
November 1995, Odman left Shelby for South Carolina, taking his
girlfriend, Mary Potlow, with him, and eventually returned to his
home in Jamaica. Odman maintained contact with Potlow, who stayed
in Shelby, until after their child was born in April 1996.
Odman was indicted with the other conspirators in June 1996. He
returned to the United States illegally in 1997, using an alias, and was
arrested on drug charges in Florida in 2000. After his conviction and
sentencing there, he was transported to North Carolina to be prose-
cuted for the instant offense. The government offered Odman a
chance to plead guilty under the original 1996 indictment, which did
not charge specific drug quantities, but plea negotiations broke down
in January 2001, and the government then obtained a superseding
UNITED STATES v. ODMAN 3
indictment which alleged drug quantities that would permit an
enhanced sentence under 21 U.S.C. § 841(b) (2000). See Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000); United States v. Promise, 255
F.3d 150, 156-57 (4th Cir. 2001), cert. denied, 122 S. Ct. 2296(2002). Nine members of the conspiracy testified against Odman at
trial. Representing himself, Odman presented no evidence and was
convicted. The district court determined at sentencing that Odman
was a leader in the offense and was responsible for at least five kilo-
grams of cocaine and 1.5 kilograms of crack. Odman’s guideline
range was 360 months to life. The court imposed a sentence of 360
months imprisonment.
On appeal, Odman challenges his conviction on a variety of
grounds. He first makes two related claims: that the five-year statute
of limitations expired as to him in November 2000 because he with-
drew from the conspiracy in November 1995, and that the supersed-
ing indictment filed in January 2001 was thus filed outside the five-
year statute of limitations. A defendant’s participation in a conspiracy
is presumed to end only when he withdraws from it by some affirma-
tive action. United States v. West, 877 F.2d 281, 289 (4th Cir. 1989).
To show withdrawal, the defendant must produce evidence that he
"acted to defeat or disavow the purposes of the conspiracy," id., or
communicated to his co-conspirators that he had abandoned the enter-
prise and its goals. United States v. Rogers, 102 F.3d 641, 644 (1st
Cir. 1996) (internal quotation and citation omitted). Odman produced
no evidence that he ever repudiated the conspiracy. Therefore, we
conclude that the superseding indictment was filed well within the
five-year statute of limitations.
Relying on Von Moltke v. Gillies, 332 U.S. 708 (1948), Odman
next contends that the district court erred in permitting him to repre-
sent himself without making an adequate inquiry to determine that his
decision was knowing and intelligent. A defendant seeking to repre-
sent himself should be made aware of the dangers and disadvantages
of self-representation, Faretta v. California, 422 U.S. 806, 835
(1975), and the record as a whole must demonstrate voluntary, know-
ing, and intelligent waiver. United States v. Gallop, 838 F.2d 105, 110
(4th Cir. 1988). However, this Circuit now holds that no particular
interrogation of the defendant is required, provided that the court
warns the defendant of the dangers of self representation so that he
4 UNITED STATES v. ODMAN
makes his choice with his eyes open. United States v. King, 582 F.2d
888, 890 (4th Cir. 1978) (citing cases). The record in this case estab-
lishes that the district court had ample reason to find that Odman’s
decision was knowing and intelligent. In addition, the court desig-
nated Odman’s two attorneys as back-up counsel and they assisted
him through the trial and at sentencing.
Odman asserts that the verdict form was defective because it did
not ask the jury to determine the specific quantity of cocaine and
crack attributable to him or whether he withdrew from the conspiracy
in November 1995. We find no error. The verdict form required the
jury to determine whether Odman was guilty of participation in a con-
spiracy involving the specific threshold amounts of cocaine or crack
that justify an enhanced sentence under 21 U.S.C. § 841(b). The court
instructed the jury that withdrawal is a defense to a charge of conspir-
acy if the defendant took some affirmative action indicating that he
had repudiated the conspiracy or its goals. In convicting Odman, the
jury demonstrated that it rejected his defense without any need for a
special verdict form. Further, we find no constitutional defect in the
original indictment.
Odman next maintains that he was tried in violation of the Speedy
Trial Act, 18 U.S.C. § 3161-3174 (2000), which provides for trial
within seventy days of indictment or initial appearance, whichever
occurs later. The seventy-day clock begins to run on the day follow-
ing the triggering event—here, Odman’s initial appearance on
November 6, 2000—and the Act excludes from countable time certain
delays for specific purposes. 18 U.S.C. § 3161(h); United States v.
Osteen, 254 F.3d 521, 525 (4th Cir. 2001). All time between the filing
of any pretrial motion and the "conclusion of the hearing on, or other
prompt disposition of, such motion" is excluded. 18 U.S.C.
§ 3161(h)(1)(F). The Act also excludes any period for which the case
is continued by the judge on his own motion or at the request of either
party, if the continuance is granted because the judge finds "that the
ends of justice served by taking such action outweigh the best interest
of the public and the defendant in a speedy trial." 18 U.S.C.
§ 3161(h)(8)(A).
If no time were excluded, the seventy-day period in Odman’s case
would have expired on January 15, 2001. In an order entered January
UNITED STATES v. ODMAN 5
23, 2001, denying Odman’s motion to dismiss for violation of the
Speedy Trial Act, the district court noted that jury selection took place
on January 11, 2001, which was within the seventy-day period. For
purposes of the Speedy Trial Act, trial begins when jury voir dire
takes place. Osteen, 254 F.3d at 525. The court also held that the time
between January 11, 2001, and January 22, 2001, was excludable
because the court had directed the parties to select the jury and then
continued the trial to January 22 "to provide the defense counsel with
an additional opportunity to review the Government’s open file and
to allow the Government time to transport prisoner witnesses." The
court added that it had continued the trial to January 22 because "the
ends of justice served by setting that date outweighed the best inter-
ests of the Defendant and the public to a speedy trial," citing United
States v. Carey, 746 F.2d 228, 230 n.2 (4th Cir. 1984) (order granting
continuance for valid reason excludes time it encompasses, whether
or not order sets out reasons, so long as court subsequently articulates
reasons).
Delay resulting from a continuance requested by a party is not
excludable unless the district court grants the order after balancing the
ends of justice served by the continuance and the best interests of the
public in a speedy trial, as required by § 3161(h)(8)(A), and this man-
datory balancing is conducted at the same time as the grant of a con-
tinuance. United States v. Keith, 42 F.3d 234, 238 (4th Cir. 1994). A
later order that performs the necessary balancing does not meet the
technical procedural requirements of the Act. Id. Therefore, in
Odman’s case, the district court’s January 23 order explaining the rea-
sons for the oral, off-the-record continuance granted on January 8 or
January 11 does not comply with the Act. However, a defendant who
requests or agrees to a continuance may not subsequently assert a vio-
lation of the Act based on the period of time covered by the continu-
ance if "the reasons for the granting of that motion as garnered from
the record are sufficient to support a finding that the ends of justice
would be met by granting the motion. . . ." Id. at 240.
Although the record does not contain an order of the district court
performing the required balancing at the time the continuance was
granted, it is clear from the record that a continuance to January 22
was granted, that the defendant agreed to it, and that the ends of jus-
tice were met by granting a continuance because plea negotiations had
6 UNITED STATES v. ODMAN
recently been broken off, defense counsel wanted time to review the
government’s files before trial, and the government needed time to
assemble its witnesses. In these circumstances, Odman cannot assert
a violation of the Speedy Trial Act, and his trial thus began within the
seventy-day period.
Odman contends that the district court cannot evade the time limits
of the Act by selecting a jury within the seventy-day period and then
continuing trial to a date outside the period. He relies on United States
v. Crane, 776 F.2d 600 (6th Cir. 1985), in which the defendant’s con-
viction was vacated because the district court judge, who was unavail-
able for trial at the end of the seventy-day period, instructed a
magistrate judge to begin voir dire on the seventieth day, then recess
until a later date. Crane is distinguishable because neither party
requested a continuance in that case and the district court’s reasons
for continuing trial did not meet the "ends of justice" test. Crane, 776
F.2d at 604-07.
Odman makes the following additional challenges to the court’s
denial of a dismissal based on violation of the Act. First, because his
transportation from Florida to North Carolina took twenty days while
the Act permits only ten days, he claims that the seventy-day period
should have expired on January 5, 2001. Under § 3161(h)(1)(H),
delay resulting from transportation of a defendant from another dis-
trict is excludable, but any time in excess of ten days is deemed
unreasonable. However, Odman was transported to North Carolina
before he was arraigned on the instant charge. Thus, the seventy-day
period had not begun to run and the length of time it took to transport
him is not relevant. Second, Odman claims error in the fact that no
jury voir dire was conducted on the superseding indictment, but pro-
vides no authority to support his view that the filing of a superseding
indictment required selection of a new jury. Third, Odman asserts that
there is no reason in the record for continuing trial from January 11,
2001, to January 22, 2001. However, defense counsel agreed with the
reason given orally by district court on January 19. Last, Odman
argues that no time should be excluded for his motions to continue
because district court did not grant his motions. As discussed above,
the district court granted at least one continuance, the time was
excludable, and as a result his trial began within the seventy-day
period.
UNITED STATES v. ODMAN 7
We find no error in the district court’s determination that Odman
was a leader in the offense and was responsible for the full amount
of cocaine and crack charged in the indictment, or that three criminal
history points were properly awarded for his previously-imposed
Florida sentence.
Odman argues that the district court erred in striking, on its own
motion, a paragraph initially included in the superseding indictment,
which alleged that Odman committed the charged conspiracy after his
2000 Florida drug conviction was final. This incorrect allegation had
no bearing on the charge against Odman. Although Rule 7(d) of the
Federal Rules of Criminal Procedure provides that the district court
may strike surplusage from an indictment on the defendant’s motion,
Odman was conducting his own defense and was by his own admis-
sion unlearned in the law. Due process is not offended when an
amendment "drop[s] from an indictment those allegations that are
unnecessary to an offense that is clearly contained within it . . . ."
United States v. Miller, 471 U.S. 130, 144 (1985); see also United
States v. Bledsoe, 898 F.2d 430, 432 (4th Cir. 1990) (matters of form
that do not alter an essential element to the prejudice of a defendant
may be corrected by amendment). Even if the court committed plain
error in striking that paragraph on its own motion, we conclude that
it is error that did not affect Odman’s substantial rights. Olano, 507
U.S. at 732-37.
Odman also maintains that it was improper for the government to
delete the paragraph by apparently making a copy of the indictment
which did not show that paragraph instead of resubmitting a revised
indictment to the grand jury. We disagree. See United States v. Wil-
ner, 523 F.2d 68, 72 (2d Cir. 1975) (while deleting irrelevant allega-
tions from an indictment by making photostatic copy of indictment
with deleted portion covered is not best method, it is not prejudicial
error).
We have no difficulty in finding that the evidence was sufficient
to support the conviction. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Burgos, 94 F.3d 849, 857 (1996). Odman’s
contention that the government failed to comply with Brady v. Mary-
land, 373 U.S. 83, 87 (1963), by not providing transcripts of its wit-
nesses’ prior testimony in the trials of his co-conspirators is without
8 UNITED STATES v. ODMAN
merit because "the Brady rule does not apply if the evidence in ques-
tion is available to the defendant from other sources." United States
v. Brothers Constr. Co,, 219 F.3d 300, 316 (4th Cir.), cert. denied,
121 S. Ct. 628 (2000) (quoting United States v. Wilson, 901 F.2d 378,
380 (4th Cir. 1990)). Trial transcripts are public documents. United
States v. Chanthadara, 230 F.3d 1237, 1254 (10th Cir. 2000) (listing
cases).
We have considered the claims of prosecutorial misconduct and
violation of the Vienna Convention that Odman raises in his pro se
supplemental brief, and find no merit in them.
We therefore affirm the conviction and sentence. We grant
Odman’s motion for leave to file a pro se supplemental brief, and
deny his motion to require the government to respond to the supple-
mental brief. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED