RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Dunbar No. 02-1766 ELECTRONIC CITATION: 2004 FED App. 0041P (6th Cir.) File Name: 04a0041p.06 ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Suzanna Kostovski, Detroit, Michigan, for Appellant. Wayne F. Pratt, ASSISTANT UNITED STATES ATTORNEY, UNITED STATES COURT OF APPEALS Detroit, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________ OPINION UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - KAREN NELSON MOORE, Circuit Judge. Defendant- - - No. 02-1766 Appellant, Damon Dunbar (“Dunbar”), appeals his conviction v. - and sentence. Dunbar was convicted by jury of one count of > distribution of cocaine base and two counts of distribution of , heroin. The district court sentenced Dunbar to three DAMON DUNBAR, - Defendant-Appellant. - concurrent 151-month terms of imprisonment. Dunbar raises two arguments on appeal. First, Dunbar argues that his N conviction should be vacated and his indictment dismissed Appeal from the United States District Court because the delay between his indictment and his trial for the Eastern District of Michigan at Detroit. violated the Speedy Trial Act. Second, if his conviction is No. 00-80778—Denise Page Hood, District Judge. upheld, Dunbar argues that his sentence should be vacated because the district court erred by including fifty-six grams of Argued: October 30, 2003 cocaine base in the calculation of his sentence based upon evidence that was not sufficiently reliable. Decided and Filed: February 9, 2004 For the following reasons, we AFFIRM Dunbar’s Before: MOORE and ROGERS, Circuit Judges; conviction and sentence. FORESTER, Chief District Judge.* I. BACKGROUND _________________ A. Offense Conduct COUNSEL An investigation by a task force comprised of federal, state, ARGUED: Suzanna Kostovski, Detroit, Michigan, for and local law enforcement officers led to Dunbar’s arrest. Appellant. Wayne F. Pratt, ASSISTANT UNITED STATES The task force received a tip from a confidential informant (“CI”) that Dunbar was engaging in illegal drug activity, which led the task force to investigate Dunbar’s drug transactions. During the investigation, undercover agents * The Honorable Karl S. Forester, Chief United States District Judge made three controlled purchases. On May 19, 1999, Dunbar for the Eastern District of Kentucky, sitting by designation.
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sold 12.1 grams of crack cocaine to an undercover DEA Trial Act. The proposed order indicates that the parties agent. At trial, the government produced evidence that agreed to use this period to prepare pretrial motions and to Dunbar possessed additional crack cocaine during this prepare for trial, and it also indicates that the defendant was transaction, and that a conservative estimate of this additional going to use this period to decide whether to plead guilty. crack cocaine was two ounces. On June 8, 1999, Dunbar sold The proposed order states that the parties stipulated that the 1.1 grams of heroin to an undercover police officer. Then, on ends-of-justice within the meaning of 18 U.S.C. § 3161(h)(8) June 15, 1999, Dunbar sold twelve grams of heroin to an would be served by the continuance due to the complexity of undercover police officer. Dunbar was arrested on the case. As a result of clerical error by the parties, this order November 3, 2000. was never presented to the district court. B. Speedy Trial Act Background On November 30, 2000, a magistrate judge held a pretrial conference and entered a summary order, noting that the On October 26, 2000, a one-count criminal complaint was parties stipulated to extend the time for filing motions until sworn in the Eastern District of Michigan, charging Dunbar January 5, 2001. This summary order was approved by the with distribution of heroin, in violation of 21 U.S.C. district judge. § 841(a)(1). The criminal complaint states that the offense occurred on or about June 15, 1999, and charges Dunbar for Although it is not reflected at all on the district court’s his conduct during the third controlled buy. On November 3, docket sheet, the parties agree that they appeared before a 2000, the complaint was unsealed, and Dunbar appeared magistrate judge on March 14, 2001, regarding a potential before a magistrate judge; the magistrate judge denied Dunbar conflict of interest issue involving Dunbar’s retained counsel, bond and ordered him detained. On November 9, 2000, a Lusby. The potential conflict of interest issue arose during three-count indictment was returned against Dunbar in the pretrial discussions between the government and Lusby about Eastern District of Michigan. Count One of the indictment the possibility of a plea agreement. The government’s plea charges Dunbar with distribution of five grams or more of a offer was contingent upon the defendant providing mixture or substance containing cocaine base (crack cocaine) “substantial assistance” in the form of information regarding on or about May 19, 1999, in violation of § 841(a)(1), other individuals. During these discussions, Lusby indicated (b)(1)(B)(ii), and (b)(1)(B)(iii). Counts Two and Three of the that he might have a potential conflict of interest between indictment charge Dunbar with distribution of heroin, in Dunbar and his other clients, who might be the subject of violation of § 841(a)(1) and (b)(1)(C), on or about June 8, Dunbar’s assistance. The government and Lusby agreed that 1999, and on or about June 15, 1999, respectively. Dunbar should consider requesting appointed counsel for the purpose of advising Dunbar about the potential conflict of On November 13, 2000, Dunbar made his initial interest issue. In an appearance before a magistrate judge, on appearance on the charges contained in the indictment and May 14, 2001, Dunbar requested more time to confer with entered a plea of not guilty. Dunbar remained in detention Lusby before requesting appointed counsel. In another following his plea. After Dunbar was arraigned, his retained appearance before the magistrate judge, on May 15, 2001, counsel, Charles D. Lusby (“Lusby”), and the government Dunbar again failed to request appointed counsel, and the signed an undated proposed order for a continuance, matter was adjourned so that the government could file a stipulating that a period from November 13, 2000 to January motion to resolve the potential conflict of interest issue. The 5, 2001 would be excludable delay for purposes of the Speedy government filed its motion on May 16, 2001. On May 22, No. 02-1766 United States v. Dunbar 5 6 United States v. Dunbar No. 02-1766
2001, Lusby filed a response to the government’s motion to though, and that resolve the potential conflict of interest issue and also filed a is the speedy motion to withdraw as Dunbar’s counsel. On May 24, 2001, trial. the district court granted Lusby’s motion to withdraw as defense counsel; on May 25, 2001, the district court THE COURT: Okay. appointed the Federal Defender’s Office to represent Dunbar, which mooted the government’s motion to resolve the conflict MR. MURPHY: Because we have 79 days of of interest issue. Eventually, Timothy Murphy (“Murphy”) nonexcludable de la y by m y was appointed by the Federal Defender’s Office as Lusby’s computation. replacement. THE COURT: Well, I think we’re at, on the speedy On May 24, 2001, Dunbar personally made a motion to trial clock, of 84 days. review his detention. On May 30, 2001, the district court held a hearing on Dunbar’s motion to review his detention and also MR. MURPHY: Well, I have 79, but that was I don’t considered whether Dunbar’s right to release under § 3164 of know since when. But, we have over the Speedy Trial Act had been violated because Dunbar had 70, that’s the issue. been detained for more than ninety days and the docket sheet did not reflect any periods of excludable delay. The district And that, of course, gives rise to — court was unable to resolve the motion on May 30, 2001 and well, under those circumstances, I scheduled another hearing for June 4, 2001. would move to dismiss.
The dialogue between the parties and the court during the Now, I’ve advised Mr. Dunbar that the June 4, 2001 hearing is important because Dunbar’s ability to Government is very well — that the obtain a dismissal of the indictment for a violation of his Court has discretion to dismiss with or rights under § 3161 of Speedy Trial Act depends upon without prejudice. Under these whether he made a motion to dismiss the indictment for circumstances, I would make no violation of the seventy-day rule. At the outset, the parties prediction, but I would certainly share and the court considered the purposes of the June 4, 2001 my opinions with Mr. Dunbar about hearing to be determining whether § 3164 had been violated which was more likely. And that if because Dunbar had been detained for more than ninety days the Court chose to dismiss without and reviewing Dunbar’s detention. After discussing whether prejudice, the Government would Dunbar should be released pursuant to the ninety-day rule for likely seek a delay to reindict so that § 3164, Dunbar’s counsel raised the issue of whether the would be an exercise in futility. indictment should be dismissed pursuant to the seventy-day We haven’t fully discussed that issue. rule for § 3161. The following exchange took place between Dunbar’s counsel and the Court: THE COURT: Okay. MR. MURPHY [Dunbar’s counsel]: T h e r e i s a n J.A. at 65 (emphases added). The court then discussed additional issue, whether various periods constituted excludable delay pursuant No. 02-1766 United States v. Dunbar 7 8 United States v. Dunbar No. 02-1766
§ 3161(h) of the Speedy Trial Act. J.A. at 70-79. The court has not been violated to date, meaning found that up to that point, only eighty-four days of non- that the Defendant has not been detained excludable delay had passed, therefore, the ninety-day pretrial solely because he is awaiting trial in detention rule of § 3164 had not been violated. violation of 18 USC Section 3164(a). In reaching its conclusion that only eighty-four days of ... non-excludable delay had passed, the district court determined that the Speedy Trial clock began to run on And so, if you are making a motion to November 9, 2000, the day that Dunbar was indicted, but that dismiss based on the speedy trial clock November 9, 2000 was excludable. The district court found having run, that’s denied. Your motion that three non-excludable days had passed from November for an evidentiary hearing is also at this 10, 2000 through November 12, 2000. The district court then time denied without prejudice. concluded that November 13, 2000, the day Dunbar was arraigned, was excludable. The district court excluded a J.A. at 78-79. Following the June 4, 2001 hearing, the district thirty-day period in January and February 2001 for plea court issued a written order, dated June 8, 2001, recording its negotiations. The district court then concluded that previous rulings on Dunbar’s oral motions. The order March 14, 2001 through May 24, 2001 was excludable due to provides in pertinent part: the potential conflict of interest issue. The district stopped counting the days as of May 24, 2001, but we note that the IT IS ORDERED that [Dunbar’s] oral Motion for period between May 25, 2001 and June 4, 2001 should have Release on Bond pursuant to 18 U.S.C. § 3164 is been considered excludable delay pursuant to § 3161(h)(1)(F) DENIED, the Court finding that § 3164 has not been because Dunbar made an oral motion to review his bond at violated as more fully set forth on the record. the May 24, 2001 hearing and the motion was not disposed of until June 4, 2001.1 IT IS FURTHER ORDERED that [Dunbar’s] oral Motion to Dismiss for a violation of the Speedy Trial Act After making its findings regarding excludable delay, the is DENIED. district court made the following oral ruling: Docket No. 32. At the June 4, 2001 hearing and again in its THE COURT: And therefore, Section 3164 has not June 8, 2001 written order, the district court also denied been violated. At least the Court finds it Dunbar’s motion for an evidentiary hearing. Nevertheless, at the June 4, 2001 hearing, the district court ordered Dunbar released pursuant to a $10,000 unsecured bond. 1 It is not clear whe ther the d istrict court found additional days Following several adjournments and continuances, voir dire excludable, beyond those it explicitly mentioned during its findings for Dunbar’s trial began on November 1, 2001. On imme diately preceding its oral ruling . By our calculations, subtracting the November 6, 2001, the jury found Dunbar guilty of all three days the district court explicitly found excludable, m ore tha n ninety days counts of the indictment. On June 6, 2002, the district court passed between Dunbar’s indictment and the June 4, 2001 hearing. However, because the district court released Dunbar on bond , and because sentenced Dunbar to three concurrent terms of 151 months of on appeal we find additional days excludable, this calculation error was imprisonment; concurrent terms of eight years of supervised harmless. No. 02-1766 United States v. Dunbar 9 10 United States v. Dunbar No. 02-1766
release on Count One, six years of supervised release on on November 1, 2001, with the commencement of voir dire. Count Two, and six years of supervised release on Count See J.A. at 357-65. Three. Based upon the foregoing analysis, the district court On March 1, 2002, defense counsel made a motion for calculated that only forty non-excludable days passed reconsideration of Dunbar’s oral motion to dismiss his between Dunbar’s indictment and the commencement of his indictment due to violation of § 3161 of the Speedy Trial Act. trial. The court then explicitly ruled that there was no At a hearing on Dunbar’s motion for reconsideration, on violation of the seventy-day rule of § 3161. On March 23, March 21, 2002, the district judge re-analyzed the period 2002, the district court entered an order denying Dunbar’s between Dunbar’s indictment and the commencement of his motion for reconsideration. trial. The district court again concluded that the Speedy Trial clock began to run on November 9, 2000, the day Dunbar was On June 11, 2002, Dunbar timely appealed his jury indicted, but that November 9, 2000 was excludable. The conviction of November 6, 2001, the judgment of sentence of district court found that three non-excludable days had passed June 6, 2002, and the denial by the district court on March 23, from November 10, 2000 through November 12, 2000. The 2002 of his motion to dismiss the indictment due to a district court again concluded that November 13, 2000, the violation of the Speedy Trial Act. day Dunbar was arraigned, was excludable. At this hearing, the district court found an additional fifty-three days were C. Drug Quantity Background excludable due to the proposed order signed by the parties. The district court found that fifteen non-excludable days had At the time of sentencing, the district judge adopted the passed from January 6, 2001 through January 20, 2001. The guidelines applications contained in the Presentence Report district court found that the parties had engaged in plea (“PSR”). Accordingly, Dunbar’s total offense level was set negotiations from January 21, 2001 through February 19, at thirty-two and Dunbar was sentenced to three concurrent 2001, and thus these thirty days were excludable. The district 151-month terms of imprisonment. In the PSR, Dunbar’s court noted that some of the time between February 20, 2001 offense level was determined based upon sixty-eight grams of and March 14, 2001 could potentially be excludable, but that crack cocaine and thirteen grams of heroin. Therefore, due to its other calculations, it was not necessary for it to Dunbar’s offense level was determined based upon the twelve make this determination in order to deny Dunbar’s motion. grams of crack cocaine that Dunbar sold during the May 19, The district court then found that March 14, 2001 through 1999 transaction, the 1.1 grams of heroin that Dunbar sold May 24, 2001 was excludable due to the potential conflict of during the June 8, 1999 transaction, the twelve grams of interest issue. The district court also found that all of the time heroin that Dunbar sold during the June 15, 1999 transaction, from May 24, 2001 through November 1, 2001 was and the additional fifty-six grams of crack cocaine, which was excludable due to the pendency of Dunbar’s motion to review “believed to be a conservative estimate of what the defendant his detention, continuances and adjournments that Dunbar possessed during the distribution of 12 grams [of crack either requested or consented to, and an adjournment from cocaine] on May 19, 1999.” J.A. at 394-95 (PSR ¶¶ 14, 15, August 6, 2001 through September 26, 2001 due to the 16, 19). At Dunbar’s sentencing hearing on March 21, 2002, unavailability of an attorney and a witness. Finally, the the district court adjusted the drug amount and determined district court concluded that the Speedy Trial clock stopped that Dunbar should only be held responsible for sixty grams of crack cocaine, which represents the twelve grams that No. 02-1766 United States v. Dunbar 11 12 United States v. Dunbar No. 02-1766
Dunbar actually sold during the May 19, 1999 transaction and bond, the district court determined that eighty-four non- an additional forty-eight grams, which is a more conservative excludable days had passed since Dunbar was indicted, and estimate of the amount the DEA agent testified that he that the district court was bound to abide by this ruling under observed during the transaction. This adjustment in the drug the law-of-the-case doctrine. Second, Dunbar argues that quantity, however, did not affect Dunbar’s offense level. even if the district court was permitted to revisit the issue, the period covered by the proposed order is not excludable as an At Dunbar’s jury trial, David Livingston, the undercover ends-of-justice continuance, and therefore, eighty-four non- DEA agent who was present during the May 19, 1999 excludable days passed before Dunbar’s trial commenced. transaction, testified that during the transaction Dunbar Additionally, Dunbar argues that the court should dismiss the showed him four to five, half-ounce packages of crack indictment with prejudice because over a year has passed cocaine, in addition to the half-ounce package the DEA agent since Dunbar was indicted, because the government’s key purchased from Dunbar. These additional packages were not witness has been killed thereby depriving Dunbar of the recovered. Livingston further testified that while a full half- opportunity to cross-examine, and because the purpose of the ounce package should weigh fourteen grams, dealers typically Act would be thwarted if courts were not required to adjust sell half-ounce packages that actually weigh between twelve their procedures to comply with the Act. and thirteen grams to save product and to avoid stiffer sentences. At the sentencing hearing, forty-eight grams of The government argues that Dunbar waived his ability to crack cocaine, which represents the weight of four, twelve- argue that his rights were violated under § 3161 of the Speedy gram bags, was attributed to Dunbar to account for the Trial Act, on the theory that Dunbar failed to make a motion additional unrecovered crack cocaine. to dismiss his indictment before his trial commenced. The government further argues, asserting various theories, that II. ANALYSIS fewer than seventy non-excludable days passed between the day Dunbar was indicted and the day his trial commenced. A. Speedy Trial Act The government contends that Dunbar should be estopped from denying that the period covered by the proposed order On appeal, we review de novo the district court’s is excludable delay because he consented to the delay, application of the Speedy Trial Act. United States v. Salgado, because the period should be excluded as “other proceedings” 250 F.3d 438, 453 (6th Cir.), cert. denied, 534 U.S. 936 involving the defendant, and because the law-of-the-case (2001). However, we review for abuse of discretion the doctrine is inapplicable, as this doctrine does not apply to district court’s decision to grant an ends-of-justice interlocutory decisions of the district court. The government continuance pursuant to § 3161(h)(8). United States v. further asserts that any dismissal for violation of § 3161 Howard, 218 F.3d 556, 563 (6th Cir. 2000). would have been without prejudice and that the government would have reindicted Dunbar; therefore, according to the On appeal, Dunbar argues that his indictment should have government, the failure to dismiss was harmless. been dismissed under § 3161 of the Speedy Trial Act because eighty-four non-excludable days passed between the day he The Speedy Trial Act protects defendants’ and the public’s was indicted and the day his trial commenced. Dunbar bases interest in timely criminal trials. United States v. Noone, 913 his argument on two different rationales. First, Dunbar F.2d 20, 28 (1st Cir. 1990), cert. denied, 500 U.S. 906 (1991). contends that at the June 4, 2001 hearing on his motion for Section § 3161(c)(1) of the Act requires that a defendant’s No. 02-1766 United States v. Dunbar 13 14 United States v. Dunbar No. 02-1766
trial commence within seventy days of the date he was to argue that his indictment should be dismissed due to a indicted or the date he first appeared in court, whichever is violation of Speedy Trial Act, on the theory that Dunbar later. United States v. Tinson, 23 F.3d 1010, 1012 (6th Cir. failed to make a motion to dismiss his indictment before the 1994). Section 3161(c)(1) states: commencement of his trial. In any case in which a plea of not guilty is entered, the Section 3162(a)(2) “requires that the defendant bring a trial of a defendant charged in an information or motion for dismissal under the Speedy Trial Act prior to indictment with the commission of an offense shall trial.” United States v. White, 985 F.2d 271, 274 (6th Cir. commence within seventy days from the filing date (and 1993). This court has held that a defendant waives the right making public) of the information or indictment, or from to move for dismissal for a violation of § 3161 if he does not the date the defendant has appeared before a judicial raise the issue until appeal. Id. at 274-75. officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in During the May 24, 2001 hearing, Dunbar moved for writing to be tried before a magistrate judge on a reconsideration of his pretrial detention due to a possible complaint, the trial shall commence within seventy days violation of his rights under § 3164.2 The district court from the date of such consent. scheduled a hearing to review Dunbar’s detention on May 30, 2001, but was unable to resolve the § 3164 issue at the May 18 U.S.C. § 3161(c)(1). The Act provides the flexibility 30, 2001 hearing, and continued the hearing to June 4, 2001. necessary to conduct fair criminal trials by excluding days At the June 4, 2001 hearing, the district court calculated that from the seventy-day Speedy Trial clock for various pretrial eighty-four non-excludable days had passed since Dunbar’s proceedings. See 18 U.S.C. §§ 3161(h)(1)-(9); United States indictment and accordingly ruled § 3164 had not been v. Mentz, 840 F.2d 315, 325 (6th Cir. 1988). If, however, violated. Because the district court found that more than more than seventy non-excludable days pass before the seventy non-excludable days had passed since Dunbar’s commencement of the trial, the Act mandates dismissal of the indictment, defense counsel indicated that he “would move to indictment upon motion by the defendant. 18 U.S.C. dismiss.” J.A. at 65. Defense counsel then stated that “if the § 3162(a)(2). The trial court has discretion to decide whether Court chose to dismiss without prejudice, the Government to dismiss the indictment with or without prejudice, but in would likely seek a delay to reindict so that would be an making that decision, the trial court must weigh various statutorily prescribed factors. See id. 2 Section 3164 provides that a defendant, who is detained so lely In the present case, Dunbar was indicted on November 9, because he is awaiting trial, must be released o n bond if he is detained for 2000, and his trial did not commence until November 1, 2001, more than nine ty non-excludable days prior to the commencement of trial. which was 357 days later. Thus, Dunbar “has presented a 18 U.S.C. § 3164 . While § 3161 (c)(1) ensures that a defendant is brought prima facie case of a Speedy Trial Act violation.” Mentz, 840 to trial promptly and the seventy-day pe riod begins to run from the later of the defendant’s appearance or indictment, § 3164 ensures that a F.2d at 326. The parties agree that much of this time is defendant is not detained too long prior to trial and begins to run from the excludable under § 3161(h), but Dunbar argues that eighty- defendant’s first day of confinement. See 18 U.S.C. §§ 3161(c)(1) and four non-excludable days passed before his trial commenced. 3164(b ). Despite the d istrict court’s finding that § 3164 had not been The government, however, contends that, regardless of how violated, it released Dunbar on a $10,000 unsecured bond on June 4, many non-excludable days passed, Dunbar waived his ability 200 1. Dunbar do es not appeal the district court’s ruling that § 3164 was not violated. No. 02-1766 United States v. Dunbar 15 16 United States v. Dunbar No. 02-1766
exercise in futility.” J.A. at 65. While Dunbar’s motion to doctrine is more flexibly applied to reconsideration of earlier dismiss could have been much clearer, the district court decisions by the same court or a coordinate court. Gillig v. understood that Dunbar was in fact making a motion to Advanced Cardiovascular Sys., 67 F.3d 586, 589 (6th Cir. dismiss, because the district judge stated, “if you are making 1995). “At the trial court level, the doctrine of the law of the a motion to dismiss based on the speedy trial clock having case is little more than a management practice to permit run, that’s denied.” J.A. at 79. Furthermore, in a written logical progression toward judgment. Prejudgment orders order dated June 8, 2001, the district court explicitly ruled remain interlocutory and can be reconsidered at any time.” “that [Dunbar’s] oral Motion to Dismiss for a violation of the Id. (quoting 1b James Wm. Moore et al., Moore’s Federal Speedy Trial Act is DENIED.” Docket No. 32. Because Practice ¶ 0.401 (2d ed. 1994)). The law-of-the-case doctrine Dunbar made a motion to dismiss his indictment at the June does not remove a district court’s jurisdiction to reconsider, 4, 2001 hearing, prior to the commencement of his trial, or otherwise preclude a district court from reconsidering, an Dunbar has not waived his right to argue that his indictment issue previously decided in the case. Id. at 590. We have should have been dismissed due to a violation of § 3161. previously refused to apply the law-of-the-case doctrine to preclude review of various prejudgment rulings. See, e.g., Although Dunbar did not waive his right to argue that his Polec v. Northwest Airlines, Inc. (In re Air Crash Disaster), indictment should have been dismissed due to a violation of 86 F.3d 498, 517-18 (6th Cir. 1996) (reconsidering rulings § 3161, at a post-trial hearing on March 21, 2002, the district about discovery); Gillig, 67 F.3d at 590 (reconsidering court denied his motion for reconsideration of his oral motion preclusive effect of liability release given to employer by to dismiss his indictment because the motion for plaintiff). reconsideration was untimely and also on the merits.3 At the March 21, 2002 hearing, the district court found that only In the present case, we do not consider the law-of-the-case forty non-excludable days passed between the day Dunbar doctrine to have precluded the district court from was indicted and the day his trial commenced, and thus the reconsidering its June 4, 2001 finding that eighty-four non- court concluded that § 3161 had not been violated. On excludable days had passed. First, the June 4, 2001 finding appeal, Dunbar contends that the district court erred by was made in the context of the court’s decision on Dunbar’s recalculating the number of non-excludable days that passed motion to reconsider his detention pursuant to the ninety-day before his trial commenced, on the theory that the court was rule contained in § 3164; therefore, once the district court bound by the law-of-the-case doctrine to its June 4, 2001 found that fewer than ninety non-excludable days had passed, ruling that eighty-four non-excludable days had passed. there was no reason for it to decide whether further days were excludable. Second, the district court’s finding regarding the The law-of-the-case doctrine is rigidly applied to enforce a number of non-excludable days is an interlocutory ruling, and lower court’s obedience to a higher court; however, the thus the court may depart from it for good reason. See Gillig, 67 F.3d at 589-90. Third, during the March 21, 2002 hearing, the district court had good reason to depart from its earlier 3 ruling because Dunbar explicitly argued that the seventy-day W hen the district judge stated that Du nba r’s motion to reconsider was untimely, defense counsel stated that she was actually seeking a rule contained in § 3161 had been violated and that the ruling on the previous motion to dismiss because she believed that the indictment should have been dismissed; therefore, the passage district court never actually ruled on that motion. The district court’s of time might invalidate his jury conviction. Finally, docket entry No. 32, however, reflects that the court did rule on the motion to d ismiss. regardless of the law-of-the-case doctrine, we may recalculate No. 02-1766 United States v. Dunbar 17 18 United States v. Dunbar No. 02-1766
the number of non-excludable days on appeal. United States conflict of interest issue was not resolved until the district v. Jenkins, 92 F.3d 430, 439 (6th Cir. 1996), cert. denied, 520 court granted Lusby’s motion to withdraw as defense counsel U.S. 1170 (1997). at a hearing on May 24, 2001. The period from May 16, 2001, the day the government filed its motion to resolve the Dunbar was indicted on November 9, 2000. Although the conflict of interest, until May 24, 2001, the day the district Speedy Trial clock began to run on November 9, 2000 court held and concluded its hearing on the motion, is because Dunbar was in detention on the criminal complaint at excludable under § 3161(h)(1)(F). See Henderson v. United that time, the day of indictment is excluded as “other States, 476 U.S. 321, 331-32 (1986); Mentz, 840 F.2d at 326. proceedings” pursuant to § 3161(h)(1). Mentz, 840 F.2d at The Supreme Court has distinguished between motions that 326. Dunbar was arraigned on the indictment on require a hearing and motions that do not require a hearing. November 13, 2000, and that date is also excluded as “other For motions that require a hearing, § 3161(h)(1) provides for proceedings” pursuant to § 3161(h)(1). Id. The district court the automatic exclusion of “the entire period between the found, and Dunbar does not dispute, that the parties were filing of the motion and the conclusion of the hearing” on that engaged in plea negotiations for thirty days, from January 21, motion. Henderson, 476 U.S. at 329. Therefore, the entire 2001 to February 19, 2001. We have held that plea period between the filing of the motion on May 16, 2001, negotiations may be excluded as “other proceedings” pursuant until the district court held and concluded its hearing on that to § 3161(h)(1). United States v. Bowers, 834 F.2d 607, 609- motion on May 24, 2001, is automatically excluded under 10 (6th Cir. 1987). § 3161(h)(1)(F). The district court also found, and Dunbar does not dispute, At the May 24, 2001 hearing, Dunbar personally made a that the potential conflict of interest issue was brought to the motion to reconsider his detention, and the court set a hearing court’s attention in a hearing before a magistrate judge on on that motion for May 30, 2001. The district court was March 14, 2001, at which time the government expected unable to resolve that motion on May 30, 2001, and continued Dunbar to request appointed counsel for the purpose of the hearing until June 4, 2001. At the June 4, 2001 hearing, advising him during the plea negotiations. Dunbar did not the district court re-analyzed the period between the date request appointed counsel at the March 14, 2001 appearance, Dunbar was indicted and the date his trial commenced, and nor did Dunbar request appointed counsel at subsequent the court concluded that only eighty-four days of non- appearances before a magistrate judge on May 14, 2001 and excludable delay had passed. Nevertheless, the district court May 15, 2001. Although no formal motion was made before ordered that Dunbar be released pursuant to a $10,000 or at the March 14, 2001 appearance, we hold that March 14, unsecured bond. We hold that the period from May 24, 2001 2001 through May 15, 2001 may be excluded under through June 4, 2001 is automatically excludable pursuant to 3161(h)(1) as “other proceedings concerning the defendant.” § 3161(h)(1)(F), as it constitutes delay between the filing of As the First Circuit has sensibly pointed out, a defendant a motion and the conclusion of a hearing on that motion. See should not be able to stall in obtaining appropriate counsel in Henderson, 476 U.S. at 331-32; Mentz, 840 F.2d at 326. order to obtain a dismissal for a violation of § 3161(c)(1). See Noone, 913 F.2d at 28. At the March 21, 2002 hearing, the district court found that the period between November 13, 2000 and January 5, 2001 The government finally made a motion to resolve the was excludable delay because the parties had signed a potential conflict of interest issue on May 16, 2001. The proposed order stipulating that the period would be excluded No. 02-1766 United States v. Dunbar 19 20 United States v. Dunbar No. 02-1766
as an ends-of-justice continuance pursuant to § 3161(h)(8). justice, rather than merely rationalizes a delay after the fact. Although the proposed order was not timely presented to the United States v. Richmond, 735 F.2d 208, 215-16 (6th Cir. district court, the court retroactively found that it would have 1984).4 granted the motion, and thus determined that the time could be excluded under § 3161(h)(8). On appeal, Dunbar argues The government contends that the time period covered by that the district court did not have authority to grant this the stipulation may be excluded pursuant to § 3161(h)(1) motion nunc pro tunc, as § 3161(h)(8) requires the district because the stipulation indicates that the parties agreed to use court to conduct a contemporaneous balancing test when the period from November 13, 2000 to January 5, 2001 to deciding whether to grant an ends-of-justice continuance. prepare pretrial motions. While the government correctly points out that delay may retroactively be excluded under Section 3161(h)(8)(A) provides for the exclusion of: § 3161(h)(1), we have previously held that time requested to prepare pretrial motions may not be excluded as “other Any period of delay resulting from a continuance granted proceedings concerning the defendant.” See United States v. by any judge on his own motion or at the request of the Moran, 998 F.2d 1368, 1370-71 (6th Cir. 1993). The defendant or his counsel or at the request of the attorney government relied on United States v. Crawford, 982 F.2d for the Government, if the judge granted such 199, 203 (6th Cir. 1993), which was decided six and one-half continuance on the basis of his findings that the ends of months before Moran, for the proposition that time used to justice served by taking such action outweigh the best prepare pretrial motions may be excluded pursuant to interest of the public and the defendant in a speedy trial. § 3161(h)(1). In the context of analyzing the entire period No such period of delay resulting from a continuance between the date the defendant was indicted and the date his granted by the court in accordance with this paragraph trial commenced, Crawford states that a fifteen-day period shall be excludable under this subsection unless the court that the defendant’s attorney requested in order to file pretrial sets forth, in the record of the case, either orally or in motions may be excluded pursuant to § 3161(h)(1). writing, its reasons for finding that the ends of justice Crawford, 982 F.2d at 203. This statement, however, was not served by the granting of such continuance outweigh the necessary to the holding in Crawford because even after best interests of the public and the defendant in a speedy excluding this fifteen-day period, we remanded the case with trial. instructions to vacate the defendant’s conviction and to dismiss his indictment due to a violation of § 3161(c)(1). See Section 3161(h)(8)(B) requires the district court to consider id. at 205. Moran, however, dealt exclusively with the issue various factors when deciding whether to grant an ends-of- of whether time used to prepare pretrial motions may be justice continuance including, among other things, whether excluded, and actually held explicitly that such time is not failure to grant a continuance will make further proceedings excludable because § 3161(h)(1)(F) only covers the time impossible or result in a miscarriage of justice and whether the case is so unusual or complex that it is unreasonable to expect adequate preparation within the time limits established by the Act. We have explained that this balancing must be 4 Although a district court m ust conduct the balancing test prior to done prior to granting the continuance, and that the purpose granting a continuance on the basis of the ends-of-justice exception, the of the contemporaneous balancing test is to ensure that the district court may articulate its reasons after the fact. See United States court actually grants the continuance to serve the ends of v. Cian ciola 920 F.2d 129 5, 12 99-1 300 (6th C ir. 199 0), cert. denied, 501 U.S. 1219 (1991). No. 02-1766 United States v. Dunbar 21 22 United States v. Dunbar No. 02-1766
period between the filing of a motion and the conclusion of a request without making substantial contemporaneous hearing on that motion, thereby indicating that Congress did findings. In a prior unpublished opinion, we recounted the not intend to exclude time used to prepare pretrial motions. district court’s findings as follows: “The government was See Moran, 998 F.2d at 1370-71. Moran is controlling here.5 opposed to the continuance; however, the court noted its Therefore, the time period covered by the proposed order in concern for fairness to both sides. The government asked if this case may not be excluded on the theory that time used to ‘this is a continuance being in the interests of justice under prepare pretrial motions may be excluded pursuant to the statute?’ The court stated that it was, and continued the § 3161(h)(1). trial until August 15, 1994.” United States v. Howard, No. 94-6543,1997 WL 705077, at *2 (6th Cir. Nov. 6, 1997) The government also contends that the time period covered (citation omitted). On a subsequent appeal, we held: by the proposed order may be excluded because Lusby’s “Because Howard requested this continuance, he is barred signature on the stipulation indicates that the defendant from arguing that it was not in the interests of justice.” agreed to the continuance, and thus the defendant should not Howard, 218 F.3d at 562. Howard indicates that when a now be allowed to object to the delay. 6 In two published district court grants a continuance upon the defendant’s opinions, we have made the sweeping statement that where a request, we may uphold that continuance in the absence of defendant requested or at least consented to delay pursuant to substantial contemporaneous findings. an ends-of-justice continuance, he is barred from arguing that such continuance was not in the interest of justice. United Dunbar contends that this case is distinguishable because States v. Howard, 218 F.3d 556, 562 (6th Cir. 2000); Monroe, the proposed order was never presented to the district court; 833 F.2d at 99. In Monroe, this statement was tempered by therefore, the district court did not make any the fact that the district court made contemporaneous findings contemporaneous findings that would justify an ends-of- that would justify an ends-of-justice continuance, and on justice continuance. Careful review of the record, however, appeal the defendant challenged the propriety of those reveals that the district court did in fact grant a continuance, findings. Monroe, 833 F.2d at 99. In Howard, however, the pursuant to a “stipulation” encompassing most of the time district court granted a continuance upon the defendant’s covered by the parties’ proposed order. On November 30, 2000, following the pretrial conference, the magistrate judge issued a summary order, specifying that the parties had 5 “stipulated” that pretrial motions would be not be due until W e note that Moran did not invalidate United States v. Monroe, 833 F.2d 95, 99 (6th Cir. 1987), which held that time requested to file pretrial January 5, 2001. The district court’s docket sheet indicates motions may be excluded through an ends-of-justice continuance pursuant that the district judge approved this summary order. Thus, to § 31 61(h)(8). See Moran, 998 F.3d at 1372. Such a continuance, although the district court did not state its reasons for granting however, requires the district court to conduct the contemporaneous balan cing test. Id. the continuance, it did grant the continuance to January 5, 2001 pursuant to the parties’ “stipulation.” By signing the 6 The stipulation, which is in the form of a proposed order, pro vides: proposed stipulated order and also stipulating to the The parties stipulate, and the Court finds, that this case is continuance at the pretrial conference, Dunbar led the sufficiently complex due to the volume of discovery and the prosecution to believe that he needed additional time to legal and factual issues presented that the filing of motions and prepare for trial, and that he agreed that the continuance the trial of the ca se cannot be com pleted within the ordinary time served the ends of justice. Moreover, by stipulating to the provided. J.A. at 44. continuance at the pretrial conference, Dunbar led the district No. 02-1766 United States v. Dunbar 23 24 United States v. Dunbar No. 02-1766
court to believe that he needed additional time to prepare the delay covered by the ends-of-justice continuance granted pretrial motions. at the pretrial conference, we conclude that at most fifty-six non-excludable days passed; therefore, the district court Although we cannot be certain that the “stipulation” entered correctly refused to vacate Dunbar’s conviction and to into at the pretrial conference was identical to the proposed dismiss his indictment.7 This holding makes it unnecessary order in all respects, we can assume that the proposed order for us to determine whether the twenty-two days that passed accurately reflects the parties’ intentions and the arguments between February 20, 2001, when the government allegedly advanced during the pretrial conference. Thus, we hold that learned of Lusby’s potential conflict of interest, and March the district court did in fact grant an ends-of-justice 14, 2001, when the potential conflict of interest was brought continuance at the November 30, 2000 pretrial conference and to the court’s attention, may be excluded as “other that granting an ends-of-justice continuance in order to file proceedings concerning the defendant” pursuant to pretrial motions is permissible under Monroe; therefore, the § 3161(h)(1). district court did not abuse its discretion. Monroe, 833 F.2d at 99. Moreover, having stipulated to the continuance, B. Drug Quantity Dunbar may not now argue that the continuance did not serve the ends of justice. Howard, 218 F.3d at 562. We emphasize This court reviews for clear error the district court’s that we are not holding that delay may be excluded in the determination of the quantity of drugs attributable to a absence of any contemporaneous findings justifying an ends- defendant for sentencing purposes. United States v. Baro, of-justice continuance. Rather, we are holding that the facts of this case — the written stipulation, the notation of a 7 “stipulation” on the pretrial order, and the fact that Dunbar The Speedy Trial clock commenced on November 9, 2000, the day did not complain about the delay until after the entire period Dunbar was ind icted, b ut that date is excludab le. Three no n-excludab le days passed from Novem ber 10, 2000 through November 12, 2000. covered by the stipulation had passed — indicate that the November 13, 2000, the d ay Dunba r was arraigned, is excludab le. W e district court granted an ends-of-justice continuance, and that will assume that sixteen non-excludable days passed between November Dunbar consented to that continuance. Therefore, we hold 14, 2000 and November 30, 2000. November 30, 2000 through that the period from November 30, 2000 through January 5, January 5, 20 01, the perio d covered by the “stipulation,” is exclud able 2001 may be excluded as an ends-of-justice continuance. because the cou rt granted an ends-of-justice continuance. Fifteen non- Because the district court did not issue this order until excludable days passed from January 6, 2001 through January 20, 2001. January 21, 2 001 through Feb ruary 19, 2001, the period allotted to plea November 30, 2000, we will assume that the period from negotiations, is excludable. We assume, without deciding, that twenty- November 14, 2000 through November 30, 2000 is not two non-excludable days passed between February 20, 2001 through excludable delay. March 13, 2 001. Ma rch 14, 20 01 through M ay 16, 200 1 is excludab le due to the Dunbar’s failure to obtain appropriate counsel, and May 16, Voir dire in Dunbar’s trial commenced on November 1, 2001 through M ay 24, 2001 is exclud able d ue to the government’s pending motio n to resolve the potential conflict of interest issue. May 24, 2001, and thus the Speedy Trial clock stopped running on that 2001 through June 4, 20 01 is excludable d ue to D unba r’s motion to date. Mentz, 840 F.2d at 326 n.21. At the March 21, 2002 review his bond. Finally, all of the time between June 4, 200 1 and the hearing, the district court found that all of the delay between commencem ent of Dunba r’s trial on Novem ber 1, 2001 is excludable due June 4, 2001 and the beginning of voir dire in Dunbar’s trial to repeated requests for continuances and an adjournment due to the was excludable pursuant to § 3161(h)(1) or (h)(8). Dunbar unavailability of an attorney and a witness. Therefore, we conclude that at most fifty-six non-excludab le days passed between the day Dunbar was does not contest these findings on appeal. After subtracting indicted and the day his trial commenced. No. 02-1766 United States v. Dunbar 25 26 United States v. Dunbar No. 02-1766
15 F.3d 563, 568 (6th Cir.), cert. denied, 513 U.S. 912 (1994). We hold that district court did not commit clear error by At sentencing, the government must prove the quantity of finding that the government had proven the drug quantity of drugs involved by a preponderance of the evidence. Id. at forty-eight grams by a preponderance of the evidence. The 569. “Where the amount is uncertain, the district court is government provided testimony of an eye-witness to the encouraged to ‘err on the side of caution’ and only hold the transaction. Furthermore, this eye-witness was a DEA agent defendant responsible for that quantity of drugs for which ‘the who had experience with drugs sales and thus could reliably defendant is more likely than not actually responsible.’” Id. estimate the quantity of and type of drug based upon his (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th observations. The cases relied upon by Dunbar for his Cir. 1990)). The evidence used to prove the quantity of drugs argument that the government’s evidence is not sufficient are must “have a minimal level of reliability beyond mere distinguishable because they involve estimates that a large allegation.” Id. (quoting United States v. West, 948 F.2d number of drug transactions occurred based solely on 1042, 1045 (6th Cir. 1991)). extrapolations from small samples of actual drug transactions. In these cases, the courts found that the extrapolations were In this case, the district court did not commit clear error by too speculative to meet the preponderance of the evidence considering the forty-eight grams of crack cocaine that the standard. See, e.g., United States v. Rivera-Maldonado, 194 defendant possessed during the May 19, 1999 transaction F.3d 224, 230-33 (1st Cir. 1999) (drug quantity estimated when determining Dunbar’s offense level. At trial, the from two-hour composite tape showing a few transactions not undercover DEA agent who was present during the May 19, sufficient to establish quantity sold over course of five and 1999 transaction testified that during the transaction, he told one-half month period by preponderance of the evidence); Dunbar that the half-ounce package that he purchased felt a Baro, 15 F.3d at 569 (pattern of kilogram purchases not little light. The DEA agent testified that, in response, Dunbar sufficient to establish quantity by preponderance of the showed him four to five additional half-ounce packages. The evidence). Conversely, in this case, the DEA agent actually agent further testified that while half-ounce packages should observed the packages, Dunbar indicated that the packages weigh fourteen grams, they usually only weigh twelve to were half-ounces of crack cocaine by offering them in lieu of thirteen grams on the street. The PSR stated that a the half-ounce package that he sold to the DEA agent, and the conservative estimate of the additional amount in the other district court calculated the forty-eight-gram quantity using packages would be fifty-six grams, and added to that the the most conservative estimate possible. twelve grams actually sold by Dunbar in order to reach a total of sixty-eight grams, which warranted an offense level of III. CONCLUSION thirty-two. At Dunbar’s sentencing hearing, on March 21, 2002, the district court found that forty-eight grams would in Based on the foregoing analysis, we AFFIRM Dunbar’s fact be the most conservative estimate, and added to that the conviction and sentence. twelve grams actually sold by the defendant in order to reach a total of sixty grams. Despite this change in the drug quantity, the total amount of sixty grams still warranted an offense level of thirty-two. United States Sentencing Guidelines § 2D1.1(c)(4).