United States v. Thomas

28 F. App'x 427
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 22, 2002
DocketNo. 00-5426, 00-5831
StatusPublished
Cited by4 cases

This text of 28 F. App'x 427 (United States v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thomas, 28 F. App'x 427 (6th Cir. 2002).

Opinion

RYAN, Circuit Judge.

Elton F. Thomas appeals his conviction alleging violation of his Sixth Amendment right to a speedy trial. Mitchell D. Osborne appeals his sentence alleging violations of the Fifth Amendment’s Due Process Clause and error by the district court in calculating the sentence. Both of the defendants were convicted on federal charges stemming from a scheme to distribute crack cocaine. We conclude that the district court’s judgment should be affirmed.

I.

Thomas and Osborne were involved in a plot to distribute crack cocaine in Bedford County, Tennessee. Thomas pled guilty to conspiring to distribute in excess of 50 grams of cocaine base (crack), in violation of 21 U.S.C. § 846. Osborne went to trial and was found guilty of distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1).

The events leading to these convictions began when Thomas traveled from California to Tennessee with nine ounces of crack cocaine. Shortly after arriving, Thomas contacted Osborne and his girlfriend, Debra Hicks, to inform them that he had drugs to sell. Thereafter, Osborne approached a confidential informant (Cl) alerting him to a supply of crack cocaine in Bedford County. Federal and state law enforcement agents, who compose the 17th [429]*429Judicial District Drug Task Force, arranged for the Cl to make a controlled buy. The Cl went to the trailer Osborne and Hicks shared, and Hicks informed the Cl that she would have go to another location to purchase the crack. The Cl volunteered the use of his vehicle while he waited at the trailer. Agents then observed Hicks driving in the Cl’s car to a hotel room rented by Thomas. She returned shortly with crack, and the sale was consummated between Hicks, Osborne, and the Cl. With this information, agents arrested Thomas, Osborne, Hicks, and a fourth codefendant, Eric Gant, on both state and federal charges.

Thomas filed a motion to dismiss the indictment based on a three-month delay between the time of indictment and his initial appearance before the magistrate judge. Thomas also requested an evidentiary hearing on the matter. The government failed to file a response to Thomas’s motion, despite the district court’s request that it do so. Ultimately, however, the district court denied Thomas’s motion. Upon Osborne’s indictment, he moved to dismiss alleging that the Cl’s act of loaning Hicks his car constituted improper government conduct. The motion was denied.

At the conclusion of Osborne’s trial, the district court held a hearing to determine an appropriate sentence. Based on testimony elicited at the hearing and the trial, the district court determined that Osborne was “accountable for at least the 9 ounces of cocaine base” that Thomas transported from California.

II.

We turn initially to the defendants’ arguments regarding their convictions. Upon review, it is clear, as we shall explain, that neither Thomas nor Osborne present claims sufficient to warrant reversal of their convictions, or, in Osborne’s case, vacating his sentence.

A.

Thomas argues that his Sixth Amendment right to a speedy trial was violated by post-indictment delay. Thomas was taken into state custody in May 1999 and was indicted on federal charges on June 22, 1999. He was not brought before a federal magistrate judge until September 13, 1999, at which time the federal arrest warrant was executed. He contends that despite the relatively short duration of the post-indictment delay, the circumstances of this case warranted an examination by the district court, which failed to hold a hearing on the matter.

“In determining whether a defendant’s right to a speedy trial has been violated, an appeals court reviews questions of law de novo and questions of fact under the clearly erroneous standard.” United States v. Smith, 94 F.3d 204, 208 (6th Cir.1996).

The Sixth Amendment guarantees defendants the right to a speedy trial. U.S. Const. amend. VI. The Supreme Court has provided a framework for analyzing speedy trial claims, holding that “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant” are all relevant factors used to determine whether the defendant’s Sixth Amendment right has been violated. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Unless the length of delay is unreasonable, and thus presumptively prejudicial, the Sixth Amendment is not violated. Smith, 94 F.3d at 208-09 (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182).

Although Thomas frames his appeal in terms of the district court’s failure [430]*430to hold an evidentiary hearing, his argument is essentially a Sixth Amendment challenge. It is clear that under the test announced by Barker, Thomas cannot support his claim of a Sixth Amendment violation of his right to a speedy trial. A three-month, post-indictment delay does not trigger a presumption of prejudice. We held in United States v. Howard, 218 F.3d 556, 564 (6th Cir.2000), that “[a] delay of five months is not per se excessive under the Sixth Amendment”; and we have never found a three-month, post-indictment delay to raise a Sixth Amendment issue. See, e.g., United States v. White, 985 F.2d 271, 275 (6th Cir.1993); United States v. Holyfield, 802 F.2d 846, 848 (6th Cir.1986). Because Thomas fails to prove that his delay was presumptively prejudicial, the remaining Barker inquiry need not be conducted and his Sixth Amendment claim fails. See Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

B.

Osborne argues that the Cl engaged in outrageous conduct attributable to the government when he loaned Hicks his car to purchase crack cocaine. Specifically, he contends that the Cl’s conduct amounted to a denial of his right to due process, and that, as a result, evidence of the sale should be suppressed, and his conviction should be overturned. The United States responds that Osborne’s argument must be interpreted as one sounding in “inducement,” the significance of which we explain, infra.

The “outrageous government conduct” defense presents a question of law to be reviewed de novo. United States v. Warwick, 167 F.3d 965, 974 (6th Cir.1999). “Under the outrageous government conduct defense, conviction may be improper even if the evidence establishes a predisposition to commit the crime: this defense looks only at the government’s conduct and determines whether it is sufficiently outrageous so as to violate the Constitution.” Id.

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Related

United States v. Shawn Smith
620 F. App'x 493 (Sixth Circuit, 2015)
United States v. Adams
65 M.J. 552 (Navy-Marine Corps Court of Criminal Appeals, 2006)
United States v. Osborne
286 F. Supp. 2d 891 (E.D. Tennessee, 2003)
Osborne v. United States and Thomas v. United States
535 U.S. 1114 (Supreme Court, 2002)

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