924 F2d 1053 United States v. Nicholson

924 F.2d 1053

32 Fed. R. Evid. Serv. 309

UNITED STATES of America, Plaintiff-Appellee,
Stanley Louis NICHOLSON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
Cecil Ray STELL, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
George POUNDS, Defendant-Appellant.

Nos. 90-5168, 90-5183 and 90-5184.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1991.
Decided Feb. 11, 1991.

Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (CR-89-47-D)

Michael W. Patrick, Chapel Hill, North Carolina, argued for appellant Stell;

Lawrence H. Brenner, Oak Park, Mich., argued for appellant Pounds.

David Bernard Smith, Assistant United States Attorney, Senior Litigation Counsel, Greensboro, N.C., argued for appellee; Robert H. Edmunds, Jr., United States Attorney, Greensboro, North Carolina, on brief.

Barry T. Winston, Chapel Hill, N.C., on brief, for appellant Nicholson.



Before DONALD RUSSELL and WILKINS, Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.


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Three criminal defendants convicted of conspiracy to possess and distribute cocaine allege a violation of the Speedy Trial Act because a retrial was not held within seventy days of their first trial, which had resulted in a mistrial. In addition, one of the defendants argues that hearsay evidence was improperly admitted against him, while another claims that there was insufficient evidence to convict him of the conspiracy. Finding no merit in these issues, we affirm.



From May 1988 until March 28, 1989, defendants Stanley Nicholson, Cecil Stell, and George Pounds were three of six persons who allegedly operated a cocaine distribution ring out of Los Angeles, California, and Durham, North Carolina. On April 24, 1989, a federal Grand Jury for the Middle District of North Carolina returned an eleven-count superseding indictment against these six for conspiracy to possess and distribute kilogram quantities of cocaine hydrochloride and related offenses.


A jury trial was begun on July 17, 1989, in the United States District Court for the Middle District of North Carolina, against five of the six defendants. On the trial's third day, a witness for the government collapsed on the witness stand and subsequently died. The next day, July 21, 1989, the court granted defendants' motion for a mistrial.


After declaring the mistrial, the court and attorneys for both sides discussed when a new trial could begin. The court suggested the next Monday, but an attorney for one of the defendants mentioned that, "we would be entitled to some sort of transcription of at least Ms. Thomas' testimony for purposes of cross-examination." The court then noted that, "It probably would be sixty days before we can get the transcript. Ms. Julian has a tremendous commitment to the Court of Appeals." After the Assistant United States Attorney agreed that defendants would be entitled to such a transcript, the district court added, "Now, speedy trial time would be excluded waiting on the record." Thereafter, counsel for defendant Stell declared, "I know that in a case of a mistrial, the Speedy Trial Act in and of itself provides seventy days before the second trial has to commence, regardless of any excluded time. So that would be certainly within a possibility of getting a transcript. The Speedy Trial [Act] kicks in again and says that upon a mistrial, the subsequent trial has to be within seventy days, but then you start excluding time for whatever reason." The court then reiterated that, "A record in this district is very hard to come by," and shortly after this the prosecutor acknowledged that a new seventy-day time period began after a mistrial and stated that the court "would not even have to entertain excludable time under the statute." After determining that a proposed date of August 21 was unrealistic, the court declared, "[W]e're just going to have to reschedule the case at another time." Finally, near the end of this discussion, the court ordered, "Let the record show with reference to this case, as soon as the transcript has been prepared, the Court will set a date for trial of the case as quickly as possible."


On November 3, 1989, the transcript of the prior trial was filed with the court, and on November 6 the case was scheduled for a jury trial beginning November 13. The next day, November 7, defendant Stell filed a motion to dismiss, asserting a violation of the Speedy Trial Act. On November 9, defendants Pounds and Ronnie Richmond adopted Stell's motion, while defendant Nicholson filed a separate, like motion.


On November 13, 1989, the original trial judge heard the motions of Stell and Richmond.1 During this hearing, counsel for defendant Stell was closely questioned by the court regarding the understanding of all the parties on July 21 about the transcript and the date for retrial. Although Stell's attorney opined that he believed a continuance excluding speedy trial time pending receipt of the transcript had not been specifically granted because it was thought that the transcript could be obtained within the seventy-day period, the court disagreed:


The Court feels I had to give some consideration to the defendants who were requesting the transcript, and I believe the record, if one would study it carefully and look at the statements made by me, I have in fact excluded the time pending the transcript, because I said, "The case will be set for trial after receipt of the transcript." I didn't say within seventy days or ten days; I said after receipt of the transcript. Nobody objected to that. And I had already indicated that records were hard to come by in this district. So I think in effect, it was excluded, although not in the exact niceties of the statute, but I think it was excluded.

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Thereafter December 11, 1989, was set as the date for retrial. The retrial occurred without any further deaths, and defendants Nicholson, Stell, and Pounds were all convicted on Count 1, the conspiracy count. Nicholson and Stell were also convicted on other substantive counts, and all three of these defendants were acquitted on at least one count and had at least one count dismissed by the court pursuant to Rule 29.2


Defendants Nicholson, Stell, and Pounds now appeal the court's denial of their motions to dismiss the counts against them because of the supposed violation of the Speedy Trial Act. In addition, defendant Stell believes his conviction should be overturned because the court supposedly erroneously admitted hearsay evidence against him, and defendant Pounds holds that the district court erred by dismissing his Rule 29 motion on the conspiracy count.



The Speedy Trial Act, 18 U.S.C. Sec. 3161, states in part:


(e) If the defendant is to be tried again following a declaration by the trial judge of a mistrial ..., the trial shall commence within seventy days from the date the action occasioning the retrial becomes final.... The periods of delay enumerated in section 3161(h) are excluded in computing the time limitations specified in this section.


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(h) The following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence:


(8) (A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant or his counsel or at the request of the attorney for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subsection unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.


(B) The factors, among others, which a judge shall consider in determining whether to grant a continuance under subparagraph (A) of this paragraph in any case are as follows:


(i) Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.


We find that in this case the Speedy Trial Act was not violated. According to the original trial judge during the November 13 hearing, he was under the impression that on July 21 he granted a continuance that, under Section 3161(h)(8)(A), would have excluded the time spent waiting for the transcript from the seventy-day speedy trial time period. This appears to be reasonable. On July 21, the court first stated, "Now speedy trial time would be excluded waiting on the record." When both the prosecutor and counsel for the defense began talking as if such would not be necessary, the trial judge appeared not quite so sure because he repeated his observation that "A record in this district is very hard to come by." Finally, the court ordered, "Let the record show with reference to this case, as soon as the transcript has been prepared, the Court will set a date for trial of the case as quickly as possible."


Defendants maintain that even if the district court on July 21 did grant a continuance that could have tolled the speedy trial time, the court in this instance did not make the necessary finding "that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." The transcript of the July 21 hearing, though, shows that the prosecutor, counsel for the defendants, and the court all understood and acknowledged that under existing law3 a retrial could not take place until the defendants were furnished with transcripts of the mistrial. Thus, it is obvious that the court was faced with either waiting for the retrial until the transcript was printed or letting accused drug dealers go free. With this choice, the court decided to wait. As specifically noted in the Speedy Trial Act, one of the factors a judge must "consider in determining whether to grant a continuance" is, "whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice." 18 U.S.C. Sec. 3161(h)(8)(B)(i).


Our only previous decision interpreting this section of the Speedy Trial Act is United States v. Carey, 746 F.2d 228 (4th Cir.1984), cert. denied, 470 U.S. 1029 (1985). There, we stated:


Section 3161(h)(8)(A) ... excludes delay resulting from a continuance granted on the basis of findings that the ends of justice served by the continuance outweigh the best interests of the public and the defendant in a speedy trial. Recent cases uniformly hold that nunc pro tunc or retroactive continuances that are made after the expiration of the time within which the defendant should have been tried for reasons the judge did not consider before lapse of the allowable time are inconsistent with the Act. The opinions in these cases are based upon thorough analysis of the Act and consideration of its legislative history. We agree with the conclusions they reach about the invalidity of nunc pro tunc continuances after expiration of the time prescribed by the Act for the commencement of the trial.


Id. at 230 (citations omitted). A footnote to this paragraph explains, though, that


The retroactive continuances that are forbidden should not be confused with a continuance granted for valid reasons before the expiration of the allowable time for commencement of the trial and documented by findings of the court after the time has expired. A continuance granted and substantiated under these circumstances validly excludes the time that it encompasses.


Id. at 230 n. 2 (citations omitted).


Here, the continuance was not retroactively granted in November, but instead was begun on July 21 when the court specifically stated that it would not set a date for the retrial until the transcript had been prepared. That this continuance was granted for a valid reason is obvious; although the attorneys did not appear too worried about when the transcript would appear, the court certainly was, twice mentioning that it would take a long time. The reason for this worry, and the continuance, was documented in November when the transcript was finally filed with the court, 105 days after the mistrial. We find that the actions of the district court in this instance were not in violation of the Speedy Trial Act.



The second issue on appeal is Cecil Stell's assertion that inadmissable hearsay evidence was admitted against him. Regina Thomas, an original codefendant who became a witness for the government, testified at both trials that during the summer of 1988 she became romantically involved with defendant Stanley Nicholson. In October 1988, Thomas rented an apartment at 2604 Camellia Street, Durham, North Carolina, to serve as the base for her lover's drug operations in the area. According to Thomas, Nicholson then brought Cecil Stell with him from Los Angeles to Durham in late October to help distribute the drugs. Thomas testified that Stell stayed in her apartment for three weeks in November 1988, three weeks in December 1988, and three weeks in February 1989. No other witness testified that Stell was involved with the drug conspiracy or that he was even in North Carolina during this time.


Thomas also testified that approximately two weeks before her arrest, she observed a new television set in the living room of the Camellia Street apartment. Cecil Stell was supposedly present at that time, and he told Thomas that he had just bought the television at a Circuit City store, because he was tired of looking at the small TV located in Nicholson's room.


According to Thomas, after she was arrested on February 24, 1989, she asked a good friend, Adrian Dula, to clean out the Camellia Street apartment and dispose of any incriminating evidence. Dula later testified that while doing this she found a receipt from a Circuit City store in Durham for a 19" Portland brand color portable television set and a Bush brand television table. These items were bought with cash on February 13, 1989, and the receipt lists the customer's name as "C. Stell" with an address of "2604 Carmilla [sic], Durham, N.C., 27704." Dula later gave this receipt to Thomas.


During Dula's testimony at the second trial, the prosecution sought to introduce this receipt into evidence. Stell's attorney objected because he thought the information on the receipt, Stell's name and the address, was inadmissible hearsay. When the government could offer no exception to the hearsay rule under which the receipt could be admitted, other than suggesting that it might fall under the catch-all exception of Fed.R.Evid. 804(b)(5), the trial court decided not to admit the evidence.


Thereafter, the government called a district operations supervisor for Circuit City, Mary Ann Borden-Neary, who produced a carbon copy of the aforementioned receipt, taken from the records department at Circuit City. Borden-Neary testified that her company, in its normal course of business, keeps receipts from all its sales. On cross-examination, she also admitted that during a cash sale Circuit City does not require a customer to exhibit identification and that "a person could walk in [and] give the wrong name and the wrong address."


At the end of the direct examination of Borden-Neary, the government moved to have both copies of the receipt (the one supposedly found in the apartment and the one from the Circuit City records department) entered into evidence. Stell's attorney objected by simply stating, "Objection, Your Honor," and the court replied by simply announcing, "Government's Exhibit 37 and 26 are admitted into evidence." A short time later, after the testimony of another witness and a twenty-minute recess, Stell's attorney again objected to this evidence, and his motion was once again denied:


THE COURT: Mr. Patrick, have you risen for a purpose?


MR. PATRICK: Yes, Your Honor. During the examination of Miss Borden-Neary, the Circuit City custodian, before the exhibits were introduced into evidence she read the name "C. Stell," and I think the address. I didn't move to strike at that point given what I understood Your Honor's ruling on the exhibit itself would be. But I think, of course, trying to preserve our objections, we would have moved to strike that testimony consistent with our position on the exhibit itself and would ask Your Honor to at least overrule that for the record and make that motion now.


THE COURT: All right, sir. I shall. I will deny your motion.


MR. PATRICK: Thank you, Your Honor.


Stell now objects to the admission of the copies of the receipt because they contained inadmissible hearsay. The government, though, responds by stating that the copies were admissible, under the Business Records exception, Fed.R.Evid. 803(6).


Rule 803(6) states that the following is not excluded by the hearsay rule:


A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.


We find that the receipt itself, showing the purchase of a television and a table by someone at the Durham Circuit City Store on February 13, 1989, would be admissible under the Business Records exception, since it would be a record made by a person with knowledge that was kept in the course of a regularly conducted business activity, and the regular practice of Circuit City was to keep such. This exception, though, would not cover the information on the receipt as to the purchaser's name and his address. This is because this information was supplied by an outsider to the business, who was not in the regular course of business of providing such, and Circuit City in no way checked to make sure the information was correct. See J. Weinstein and M. Berger, Weinstein's Evidence p 803(6)(04); D. Louisell and C. Mueller, Federal Evidence Sec. 448; and United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980).


While the information on the receipt as to the customer's name and address would not be admissible as a business record to prove that defendant Cecil Stell actually made those purchases on that day, the information would be admissible as non-hearsay, simply to show that the purchases of the television and table were made by a person claiming to be "C. Stell" with an address of "2604 Carmilla." Lieberman, 637 F.2d at 101. At the time this evidence was admitted, Thomas had already testified to the fact that in mid-February she saw Stell in the Camellia Street apartment with a new television and he mentioned to her that he had just purchased it at a Circuit City store. We thus find that the name and address information on the receipt was properly admitted, for this limited non-hearsay purpose, to show that one calling himself "C. Stell" with an address of "2604 Carmilla" made a purchase of a television and a table at the Durham Circuit City store on February 13, 1989. Stell, had he requested, would have been entitled to a limiting instruction to this effect, but it appears that such a request was not made.



The final issue on appeal is the district court's refusal to grant defendant George Pounds' motion for dismissal of his conspiracy count pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Pounds believes that there was insufficient evidence to show that he was involved in the conspiracy. The relevant standard of review of the sufficiency of evidence is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Also, "To sustain [a] conspiracy conviction, there need only be a showing that defendant knew of the conspiracy's purpose and some action indicating his participation." United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir.1984), cert. denied, 469 U.S. 1105 (1985).


At trial, the government produced evidence showing that on October 24, 1988, Pounds was present in an apartment with codefendants Nicholson and Stell shortly before a large cocaine shipment was received there by Nicholson; between October 24, 1988, and mid-November 1988, Pounds told Nicholson that he knew people to whom he could sell one-half ounce quantities of cocaine, Nicholson then told Pounds that he would sell him cocaine for $500 a half-ounce, and someone mentioned that Pounds knew people to whom he could sell it for $700 a half-ounce; on December 2, 1988, Pounds was present along with Nicholson and Stell at the Camellia Street apartment shortly after another large quantity of cocaine had been received and an empty shipping box was observed in the living room; on February 2, 1989, Pounds was again present with Nicholson and Stell while awaiting the delivery of a package containing a large amount of cocaine; between October 1988 and February 1989, 46 calls were made from the Camellia Street apartment to Pounds' telephone; and after the arrest of Thomas and Nicholson, at the request of Adrian Dula, Pounds left Dula a key to the Camellia Street apartment and included with the key a note which read: "Here are the keys. He say [sic] he has nothing to say to you. Please don't call my home any more, keep me out of it, George." It appears that viewing this evidence in the light most favorable to the government, a rational trier of fact could find Pounds guilty of the conspiracy count.


Accordingly, the determination of the case below is




Nicholson's motion was summarily denied by the district court judge who heard the case on retrial, on December 11. It is unclear what formal action was taken on Pounds' motion


As for the other three who were originally indicted: prior to the July trial, Regina Thomas pleaded guilty to lesser charges and testified at both trials for the government; Donnell Garrett was acquitted by the jury at the December trial; and Ronnie Richmond was convicted of conspiracy, but he is currently a fugitive and his appeal has been dismissed


See United States v. Talbert, 706 F.2d 464 (4th Cir.1983)