United States v. Trotman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4547
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ENERVA W. TROTMAN, a/k/a Charles Carlos Clark,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:91-cr-00092-H-1)
Argued: September 23, 2010 Decided: January 4, 2011
Before NIEMEYER and KEENAN, Circuit Judges, and Jerome B.
FRIEDMAN, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Keenan wrote the opinion, in which Judge
Niemeyer and Senior Judge Friedman joined.
ARGUED: Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant. Jennifer P. May-
Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Anne M. Hayes, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
KEENAN, Circuit Judge:
This appeal in a criminal case presents three issues for
our consideration: 1) whether the district court erred in
admitting into evidence certain laboratory reports in the
absence of testimony from the chemist who prepared the reports;
2) whether the defendant’s rights under the Speedy Trial Act, 18
U.S.C. §§ 3161-3175, were violated; and 3) whether the
defendant’s Sixth Amendment right to a speedy trial was
violated.
A jury convicted Enerva Trotman for conspiracy to
distribute crack cocaine (count one), in violation of 21 U.S.C.
§ 846, for distribution of cocaine (counts two, three, four,
six, and seven), in violation of 21 U.S.C. § 841(a)(1), and for
using or carrying a firearm during and in relation to a drug-
trafficking crime (count five), in violation of 18 U.S.C. §
924(c)(1). 1 The district court sentenced Trotman to 420 months’
imprisonment.
We hold that the district court erred in admitting into
evidence the laboratory reports at issue and, therefore, vacate
Trotman’s convictions on counts one, six, and seven. We affirm
Trotman’s convictions on counts two, three, four, and five,
1
In counts five, six, and seven, Trotman also was charged
with aiding and abetting the offenses, in violation of 18 U.S.C.
§ 2.
3
because the chemist who prepared the reports relevant to those
counts testified at the trial. We further hold that Trotman was
not tried in violation of his rights under the Speedy Trial Act
or in violation of his Sixth Amendment right to a speedy trial.
We remand the convictions on all counts for resentencing.
I.
On November 5, 1991, in addition to the conspiracy and
firearm charges, Trotman was indicted on five counts of
distributing crack cocaine. The dates of those alleged
distribution offenses were March 15, March 22, March 29, April
9, and May 3, 1991. Police officers in New Bern, North
Carolina, arrested Trotman on these charges on November 6, 1991.
In a statement to police officers immediately after his arrest,
Trotman stated that in the previous two years, he had obtained
from Malcolm Glasgow at least five ounces of cocaine base per
week. Trotman agreed to assist the police in apprehending
Glasgow, but then escaped from custody.
Trotman was rearrested on February 27, 2006, in New Jersey,
and made his initial appearance on the indictment in the
district court on March 9, 2006. After Trotman made his initial
appearance, the district court granted several motions to
continue his arraignment and trial.
4
In July 2008, Trotman filed a motion to dismiss for
violation of his rights under the Speedy Trial Act and the Sixth
Amendment. On September 30, 2008, the district court denied
Trotman’s motion to dismiss for violation of the Speedy Trial
Act, without addressing Trotman’s Sixth Amendment argument.
When Trotman renewed his motion to dismiss, the district court
upheld its previous ruling relating to the Act, and concluded
that Trotman’s Sixth Amendment right to a speedy trial had not
been not violated.
Jury selection for Trotman’s trial began on January 26,
2009. At trial, Officer Donald Hines testified about each of
his undercover transactions with Trotman. When describing the
April 9, 1991 and May 3, 1991 transactions referenced in counts
six and seven of the indictment, Officer Hines testified that he
told Trotman that Hines wanted to purchase crack cocaine, and
that Trotman replied that he would get the crack cocaine from
Glasgow. Hines also stated that crack cocaine has “a semi-
solid, rock-like form,” and that, based on his experience and
training, he concluded that the substances he purchased from
Trotman on those two days appeared to be crack cocaine. Hines
identified two exhibits offered by the government as containing
the items he purchased from Trotman on April 9, 1991 and May 3,
1991, respectively. The district court admitted these two
exhibits into evidence.
5
Two chemists testified at trial. The first chemist, Neil
Evans, testified that he performed chemical analyses on the
substances that were purchased by Officer Hines in March 1991.
Evans confirmed that the substances were crack cocaine, and
authenticated the laboratory reports received into evidence
reflecting these results.
A second chemist, Manuel Febo, testified regarding the
laboratory reports involving substances purchased from Trotman
on April 9, 1991 and May 3, 1991. Febo acknowledged that he did
not perform the tests or prepare the laboratory reports related
to the substances purchased from Trotman on those dates.
Nevertheless, over Trotman’s objection, Febo was permitted to
testify that based on his review of those laboratory reports and
notes completed by a different chemist, and Febo’s own
observation of the substances at issue, the substances obtained
from Trotman on those dates were crack cocaine weighing 26.8
grams and 21.1 grams. Trotman also objected to the admission of
the laboratory reports, but the district court overruled the
objection and admitted those reports into evidence.
The jury convicted Trotman on all counts. Using a special
verdict form, the jury found that the drug conspiracy involved
“[a]t least 50 grams” of cocaine base. With regard to counts
six and seven, the jury found that Trotman distributed “[a]t
6
least 5 grams” of cocaine base. Trotman appeals from the
district court’s judgment.
II.
A.
We first consider whether the district court erred in
admitting into evidence the laboratory analysis reports for the
substances seized on April 9, 1991 and May 3, 1991, in the
absence of testimony by the chemist who prepared those reports.
In addressing this alleged Confrontation Clause violation, we
apply a de novo standard of review. United States v. Abu Ali,
528 F.3d 210, 253 (4th Cir. 2008).
The Confrontation Clause of the Sixth Amendment provides in
relevant part that, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. In Crawford v.
Washington, 541 U.S. 36, 59 (2004), the Supreme Court held that
the Confrontation Clause bars the admission of “testimonial”
statements if the declarant does not testify at trial, unless
the declarant is unavailable and the defendant has had a prior
opportunity to cross-examine the declarant. Although the Court
in Crawford declined to set out a comprehensive definition of
the term “testimonial,” the Court indicated that some statements
always would be categorized as “testimonial,” including
7
“statements that declarants would reasonably expect to be used
prosecutorially.” Id. at 51.
In Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct.
2527, 2532 (2009), the Supreme Court applied its holding in
Crawford to preclude the admission into evidence of
“certificates of analysis” prepared by laboratory scientists
describing the results of forensic tests performed on certain
seized substances. The certificates at issue reported the
composition, quality, and net weight of the substances analyzed.
Id. The Court held that these certificates, which the Court
described as “quite plainly affidavits,” were “testimonial”
because they were made under oath and under circumstances that
would lead an objective witness to conclude that they would be
used at a later trial. Id.In the present case, the challenged laboratory reports
likewise were “testimonial” because they were prepared under
circumstances that would lead an objective witness reasonably to
conclude that the reports would be used against Trotman at
trial. We reach this conclusion because the laboratory reports
were conducted to test the weight and composition of the
substances seized from Trotman on April 9, 1991 and May 3, 1991.
Thus, given the government’s failure to show that the preparing
chemist was unavailable and that Trotman had a prior opportunity
to cross-examine the chemist, the admission of the laboratory
8
analysis reports violated Trotman’s Sixth Amendment right of
confrontation. See Melendez-Diaz, ___ U.S. at ___, 129 S. Ct.
at 2532.
Because the district court erred in admitting the
laboratory reports purporting to analyze the substances seized
from Trotman on April 9, 1991 and May 3, 1991, we next consider
the issue whether that error was harmless. See Abu Ali, 528
F.3d at 255-56 (citing Fed. R. Crim. P. 52(a)). A
constitutional error is harmless if it appears “beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.” Chapman v. California, 386 U.S. 18,
24 (1967). The government bears the burden of proving that the
admission of these laboratory reports did not contribute to
Trotman’s convictions on the April 9, 1991 and May 3, 1991
charges. See Abu Ali, 528 F.3d at 256.
In conducting our harmless error analysis, we exclude the
two laboratory reports at issue from our consideration, and
review the remaining evidence to determine whether the
government has met its burden under Chapman. The government
contends that this remaining evidence established that the
substances Trotman sold on April 9, 1991 and May 3, 1991 were
crack cocaine. We disagree with the government’s argument.
The remaining evidence showed that Trotman had bought and
sold crack cocaine in the past, that the substances he sold on
9
April 9, 1991 and May 3, 1991 looked like crack cocaine, and
that he had agreed to procure crack cocaine for Officer Hines to
purchase on those two occasions. Notably missing from the
government’s evidence, however, is any proof that the substances
sold on those two occasions actually were crack cocaine. While
some of the government’s evidence was probative of the issue
whether the drugs were crack cocaine, that evidence was
insufficient to find “beyond a reasonable doubt that the error
[in admitting the laboratory reports] did not contribute to the
verdict obtained.” 2 Chapman, 386 U.S. at 24. We therefore
3
vacate Trotman’s convictions on counts one, six, and seven.
B.
We next decide whether the district court erred in denying
Trotman’s motion to dismiss based on an alleged violation of the
Speedy Trial Act (the Act). Trotman asserts that the district
2
The government argues that defense counsel admitted during
trial that there was no dispute regarding the identity of the
substances sold to Officer Hines. However, defense counsel
never stipulated or conceded that the type of substances sold
was crack cocaine. Instead, defense counsel merely identified
testimony already in the record bearing on the issue whether the
substances sold were crack cocaine.
3
The government also relied on the laboratory reports to
establish the quantity of drugs Trotman sold on April 9, 1999
and May 3, 1999. Because we held that admission of the
laboratory reports was not harmless error, we need not address
whether admission of the laboratory reports contributed to the
jury’s findings concerning the drug quantities.
10
court improperly extended his trial date beyond the seventy-day
limitation imposed by the Act without making the required “ends-
of-justice” findings. Trotman also argues that the district
court improperly excluded from its speedy trial calculation a
continuance for a period of time that the government requested
to locate witnesses, in violation of 18 U.S.C. § 3161(h)(7)(C).
In considering these arguments, we review the district
court’s legal conclusions de novo and its factual findings for
clear error. United States v. Kellam, 568 F.3d 125, 132 (4th
Cir. 2009). The Act requires that a criminal trial begin within
seventy days of the filing of an information or indictment, or
of the defendant’s initial appearance, whichever occurs later.
18 U.S.C. § 3161(c)(1). To provide courts some flexibility in
scheduling trials, the Act provides that certain delays may be
excluded from the seventy-day limitation. As relevant here, §
3161(h)(7)(A) of the Act excludes from the seventy-day
limitation delays in which a court finds “that the ends of
justice served by granting [a] continuance outweigh the public’s
and defendant’s interests in a speedy trial.” Zedner v. United
States, 547 U.S. 489, 498-99 (2006).
The Act lists several factors that a judge must consider
when conducting the “ends-of-justice” assessment required by §
3161(h)(7)(A). These factors include consideration whether a
defendant needs reasonable time to obtain counsel, whether
11
counsel needs additional time for effective preparation of the
case, and whether delay is necessary to ensure continuity of
counsel. 18 U.S.C. § 3161(h)(7)(B)(iv). The Act specifies that
a continuance will not be granted because of a “lack of diligent
preparation or failure to obtain available witnesses on the part
of the attorney for the Government.” Id. § 3161(h)(7)(C).
For a delay to be excludable under § 3161(h)(7)(A) from the
seventy-day limitation, a district court must explain, “either
orally or in writing, its reasons for finding” that the ends of
justice served by granting the continuance outweigh the
interests of the public and the defendant. Id. § 3161(h)(7)(A).
A district court is required to state its findings on the record
by the time it rules on a defendant’s motion to dismiss.
Zedner, 547 U.S. at 506-07 (citing § 3162(a)). It also must be
“clear from the record that the court conducted the mandatory
balancing contemporaneously with the granting of the
continuance.” United States v. Henry, 538 F.3d 300, 304 (4th
Cir. 2008). If a district court fails to state its findings on
the record, then the delay is not excludable under the Act.
Zedner, 547 U.S. at 507.
Here, the government concedes that fifty days of non-
excludable time elapsed between March 15, 2006 and May 3, 2006.
Further, neither party challenges the excludable time associated
with the various pretrial motions, including the government’s
12
motion for detention and the defendant’s motions to dismiss and
motion in limine. See 18 U.S.C. § 3161(h)(1)(D).
We conclude that the remaining days at issue are excludable
under § 3161(h)(7)(A) as continuances satisfying the “ends-of-
justice” assessment. In a September 30, 2008 order, the
district court addressed eight of Trotman’s continuance motions
and stated “ends-of-justice findings” relating to its decision
to grant each of the eight motions. (J.A. 170-74). The
district court explained that Trotman successively had dismissed
five attorneys, and that these continuance motions were granted
to allow Trotman “time to change counsel.” The district court
noted that it also granted one of these continuance requests
because of family health concerns expressed by Trotman.
In the same order, the district court made “ends-of-
justice” findings relating to three continuance motions made by
the government in January 2007. The district court granted the
government’s first two motions, requested on January 4, 2007 and
January 8, 2007, in light of Trotman’s abrupt withdrawal of his
tentative plea agreement, the age of the events in the case, and
the time required to locate and prepare the necessary witnesses. 4
4
The district court also entertained the government’s
motion for a continuance at a hearing on January 3, 2007. We
need not address this motion, however, because the one-day
interval involved does not affect our speedy trial analysis.
13
We find no merit in Trotman’s argument that the delay
associated with the government’s continuance motions of January
4, 2007, and of January 8, 2007, is not excludable under §
3161(h)(7)(C), because the district court’s reasons included the
government’s need to locate and prepare certain witnesses for
trial. Under that section, a delay is not excludable for “lack
of diligent preparation or failure to obtain available witnesses
on the part of the attorney for the Government.” 18 U.S.C. §
3161(h)(7)(C). Although the district court, in part, granted
these two continuance motions because of the government’s
problems locating certain witnesses, the district court gave two
other independent reasons for granting these continuances,
namely, Trotman’s abrupt withdrawal from his tentative plea
agreement and the age of the events in question. Even assuming
that the government’s inability to locate available witnesses
was not a sufficient reason by itself, the other reasons cited
by the district court independently supported the court’s
decision granting these two continuance requests.
In the September 30, 2008 order, the district court also
addressed its decision to grant the government’s continuance
request of January 17, 2007. The district court stated that it
granted this continuance request because of specific conflicts
that would have rendered unavailable key witnesses for the
prosecution. Contrary to Trotman’s argument, this reason did
14
not fall within the prohibition of 18 U.S.C. § 3161(h)(7)(C),
because the unavailability of an identified witness during a
given time period is a reason completely different from the
government’s failure to obtain an available witness to prosecute
the case.
Although the district court’s order of September 30, 2008
failed to address the government’s motions to continue filed on
June 2, 2008 and December 8, 2008, the delay resulting from the
granting of these two motions to continue also was excludable
under the Act. The period of delay associated with granting the
government’s continuance motion of June 2, 2008 fully overlaps
the period of delay that we already have excluded based on
Trotman’s eighth continuance. The district court granted
Trotman’s eighth continuance motion on March 13, 2008, and
continued the case until the court’s July 2008 term. Based on
our conclusion that the delay in time between March 13, 2008 and
July 2008 was excluded under the Act, we need not address
whether the district court made the appropriate “ends-of-
justice” findings when ruling on the June 2, 2008 motion.
In its December 8, 2008 motion, the government stated that
counsel both for the government and for the defendant were
scheduled to be on vacation during the week of December 29,
2008. Additionally, many of the government’s witnesses were
scheduled to be on vacation during that time. When the district
15
court ruled on the motion, it found “[u]pon the unopposed motion
of the Government and for good cause shown,” the trial should be
continued. The district court specifically excluded this period
of delay from the Act. Although the district court order could
have provided more precise reasons, the order fully incorporated
the reasons stated by counsel in the government’s motion. Thus,
we do not find a violation of the Speedy Trial Act in the
district court’s decision to grant this continuance request. We
therefore affirm the district court’s dismissal of Trotman’s
motion to dismiss alleging violations of the Act.
C.
Finally, Trotman argues that his Sixth Amendment right to a
speedy trial was violated. We review the district court’s legal
conclusions on this issue de novo and its factual findings for
clear error. United States v. Woolfolk, 399 F.3d 590, 594, 597-
98 (4th Cir. 2005).
The Sixth Amendment guarantees that “in all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial.” U.S. Const. amend. VI. To establish a violation
of this Sixth Amendment guarantee, a defendant must first show
that the Amendment’s protections have been triggered by “arrest,
indictment, or other official accusation.” Doggett v. United
States, 505 U.S. 647, 655 (1992). Next, a defendant must show
that the four factors identified in Barker v. Wingo, 407 U.S.
16514 (1972), when balanced, weigh in his favor. United States v.
Thomas, 55 F.3d 144, 148 (4th Cir. 1995). These factors are
(1) the length of the delay in bringing the defendant to trial;
(2) the reason for the delay, (3) the defendant’s timely
assertion of his right to a speedy trial, and (4) the extent of
resulting prejudice to the defendant. Barker, 407 U.S. at 530;
United States v. Grimmond, 137 F.3d 823, 827 (4th Cir. 1998).
The first Barker factor acts as a gate-keeping requirement.
Grimmond, 137 F.3d at 827. If the delay in bringing a defendant
to trial is not “presumptively prejudicial,” then the Sixth
Amendment inquiry ends. Id. at 827-28. Courts often have
concluded that a delay over one year is “presumptively
prejudicial.” See, e.g., Doggett, 505 U.S. at 652 n.1;
Woolfolk, 399 F.3d at 597; Grimmond, 137 F.3d at 828.
In the present case, Trotman’s Sixth Amendment right to a
speedy trial attached when he was charged in the indictment on
November 5, 1991. See Jones v. Angelone, 94 F.3d 900, 906 n.6
(4th Cir. 1996). The seventeen-year delay between the date of
the indictment and the date of Trotman’s trial is sufficient to
trigger the Sixth Amendment inquiry. See Doggett, 505 U.S. at
652.
Next, we consider the reasons for the seventeen-year delay.
The record shows that after agreeing to cooperate with the
police, Trotman fled and remained a fugitive from 1991 until
17
2006. Once he ultimately was rearrested, he caused additional
delays by seeking new counsel five times and by filing eight
continuance motions. Because Trotman has been responsible for
most of the seventeen-year delay in his case, the second Barker
factor weighs in favor of the government.
The third Barker factor also weighs in favor of the
government. Trotman waited until sixteen years after he was
indicted, with only six months remaining before his trial, to
assert his Sixth Amendment right. See Grimmond, 137 F.3d at
829.
Lastly, Trotman has not identified any true prejudice that
he suffered as a result of the delay in bringing his case to
trial. Trotman claims that he was prejudiced because he was
housed in a jail location that precluded him from regular
contact with his attorney, and because the government had time
to secure additional witnesses during the delay. However,
neither of these assertions is relevant to the prejudice inquiry
mandated by Barker.
This prejudice inquiry focuses on “the interests [that] . .
. the speedy trial right was designed to protect.” Grimmond,
137 F.3d at 829. These interests include: “(1) preventing
oppressive pretrial incarceration, (2) minimizing the anxiety
and concern of the accused, and (3) limiting the possibility
that the defense will be impaired.” Id.18
Trotman was incarcerated for several months after his
initial appearance, in part because he already had escaped from
federal custody. He has not established that his defense was
impaired by the delay due to any limitation in his ability to
consult with his counsel, to the unavailability of any
witnesses, to any lack of recall by witnesses, or to any
evidence lost. Therefore, the prejudice factor in Barker does
not weigh in Trotman’s favor. Because the four Barker factors
do not weigh in Trotman’s favor, we hold that his Sixth
Amendment right to a speedy trial was not violated, and that the
district court did not err in denying his motion to dismiss on
this basis.
III.
For these reasons, we vacate Trotman’s convictions on
counts one, six, and seven, affirm Trotman’s convictions on
counts two, three, four, and five, and remand the case for
resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
19