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UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.

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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.

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 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

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“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

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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

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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.

16
514 (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

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