UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 93-5866
DERRICK A. CURRY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William N. Nickerson, District Judge.
(CR-90-454-WN)
Argued: October 28, 1996
Decided: December 5, 1996
Before WILKINSON, Chief Judge, and RUSSELL and HALL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Green-
belt, Maryland, for Appellant. John Vincent Geise, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF:
Lynne A. Battaglia, United States Attorney, Barbara S. Skalla, Assis-
tant United States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Derrick Curry was convicted of possession, distribution, and con-
spiracy to distribute crack cocaine in violation of 18 U.S.C. § 2 and
21 U.S.C. §§ 841(a)(1) and 846. Curry appeals arguing that he was
unduly prejudiced by the expert testimony of a law enforcement offi-
cer and the "willful blindness" instruction given to the jury. Addition-
ally, Curry argues that his conviction should be vacated because his
trial was not timely under the Speedy Trial Act. Lastly, Curry con-
tends that we should remand his case for resentencing because the
district court incorrectly concluded that it had no legal authority to
grant a downward departure based on a "combination of factors" the-
ory. We find no merit in Curry's various contentions, and we affirm
the judgment of the district court.
I.
In the fall of 1988, federal agents began an operation aimed at
prosecuting a crack distribution network active in Northeast Washing-
ton, D.C. This investigation led to the arrest and indictment of Derrick
Curry and over twenty other defendants.
The evidence showed that Curry was deeply involved in the drug
distribution conspiracy. On two occasions in July 1990, he was video-
taped exchanging crack cocaine for cellular phones with FBI Special
Agent Eric Bryant. Surveillance of Curry and his co-conspirators also
revealed that he was involved in a plan to deliver a large quantity
of crack cocaine on October 17, 1990. Furthermore, Curry's co-
conspirators testified that they had seen Curry make crack deliveries
on several occasions. In addition to this significant body of evidence,
the prosecution introduced transcripts of several Title III wire inter-
cepts between Curry and other members of the conspiracy which cor-
roborated the testimony against him.
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At a September 5, 1991 hearing, Curry was granted his motion for
severance from the trial of all but four of those who had been
indicted. On March 20, 1992, another severance separated Curry and
Tyrone Hughley from the rest of the co-defendants. On June 1, 1992,
Curry's trial commenced. Hughley entered a guilty plea during the
trial. On June 10, 1992, the jury found Curry guilty of conspiracy to
distribute crack cocaine, distributing crack cocaine, and possession of
crack with intent to distribute in violation of 18 U.S.C. § 2 and 21
U.S.C. §§ 841(a)(1) and 846. On October 1, 1993, Curry was sen-
tenced to 235 months of imprisonment. He then filed the instant
appeal.
II.
Curry maintains that the district court erred in refusing to dismiss
his indictment because his trial was not timely under the Speedy Trial
Act, 18 U.S.C. § 3161, et seq. The parties agree that as of December
3, 1991, only five days had gone off the Speedy Trial Act clock.
Curry, however, disputes the district court's Speedy Trial calculations
after that date.
He first challenges the court's determination that a co-defendant's
motion to dismiss stopped the Speedy Trail clock until a hearing was
held on that motion. On September 23, 1991, Michael Smith, a defen-
dant then in Curry's trial group, filed a motion to dismiss three of the
charges against him. This motion was not resolved in a November 1,
1991 motions hearing, but the district court had also scheduled a pre-
trial conference on all pending motions for January 17, 1992 which
was eventually rescheduled for March 20, 1992. Curry contends that
the court never acted on Smith's motion, and the motion, therefore,
excluded at most only thirty days from the Speedy Trial clock pursu-
ant to 18 U.S.C. § 3161(h)(1)(J).
We disagree. Smith's motion was indeed one of the subjects of the
March 20 hearing. In a March 16, 1992 letter to the district judge, the
government clearly stated its understanding that Smith's motion
would be covered during the hearing. Indeed, the subject was dis-
cussed in the hearing, and the government voluntarily dropped two of
the counts against Smith. Additionally, Smith's counsel appeared at
the hearing and argued that two other counts should have been
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dropped as well. The district court also believed that the purpose of
the March 20 hearing was to address Smith's motion and said as
much in denying Curry's Speedy Trial motion below, stating, "I am
confident that the hearing that was held was scheduled to resolve
open motions, including the Smith motion that has been referred to,
and that the motion of Michael Smith does add excludable time which
kept this case on track." We have found nothing in the record which
refutes the trial court's conclusion.
Curry also suggests that Smith's motion should not have excluded
time from the Speedy Trial clock because it was"frivolous." How-
ever, the provision which excludes the time through the hearing on
the Smith motion, 18 U.S.C. § 3161(h)(1)(F), contains no reasonable-
ness requirement. As the Supreme Court has indicated, this was a
deliberate decision by Congress. See Henderson v. United States, 476
U.S. 321, 326-27 (1986). The decision reflects Congress' refusal to
confuse further "an already complicated area of the law by requiring
a district court to assess the merits of a motion before it determines
that an exclusion of time will be permitted." United States v.
Springer, 51 F.3d 861, 865 (9th Cir. 1995).
Speedy Trial time exclusions as to one defendant govern all defen-
dants until they are severed. 18 U.S.C. § 3161(h)(7). Since the time
between the filing of a pre-trial motion and the conclusion of the hear-
ing on that motion is excludable from the Speedy Trial clock under
section 3161(h)(1)(F), see Henderson, 476 U.S. at 330, no Speedy
Trial days accumulated as to Curry's trial between December 3, 1991
and March 20, 1992.
Curry further disputes the amount of Speedy Trial time that passed
after March 20. Curry maintains that a motion in limine filed by the
government on May 4, 1992 should not have operated to exclude the
period of time between the filing of that motion and the resolution of
the motion during Curry's trial which commenced on June 1, 1992.
When the largest group of defendants was tried, the jury returned
acquittals on some of the counts on April 10, 1992. After that verdict,
Michael Smith, whose trial was still pending and had been severed
from Curry's by that point, requested that the district court take "judi-
cial notice" of the April 10th acquittals. The government, concerned
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that a similar motion might be made by one of the defendants still in
Curry's group, filed a motion in limine on May 4, 1992 to preclude
reference in Curry's trial to the April 10th acquittals. The court
addressed this motion on the second day of Curry's trial, granting the
government's requested relief.
This circuit has recognized that pretrial motions which exclude
time under the Speedy Trial Act include all motions"capable of deter-
mination without the trial of the general issue." United States v. Riley,
991 F.2d 120, 123 (4th Cir. 1993) (citation omitted). The govern-
ment's motion in limine certainly falls within this category. The fact
that the motion was not decided until the trial began does not affect
the Speedy Trial time calculation. This circuit has held that "when the
Speedy Trial Act refers at 18 U.S.C. § 3161(h)(1)(F) to a `pretrial
motion,' the reference includes a motion to suppress whether or not
deferred" until trial. Id. at 124.
Curry's further argument that the government filed the motion as
a pretext to stop the Speedy Trial clock is meritless. The develop-
ments in the trials of the other defendants understandably led the gov-
ernment to want to resolve the potential problem of the defense
mentioning the April 10th acquittals in Curry's trial. The govern-
ment's motion in limine was thus appropriate, and the district court
properly excluded the time between the filing of the government's in
limine motion and the beginning of Curry's trial pursuant to 18 U.S.C.
§ 3161(h)(1)(F).
Only fifty days of non-excludable Speedy Trial time passed before
the commencement of Curry's trial on June 1, 1992-- the five days
prior to December 3, 1991 and the forty-five days that passed between
the March 20, 1992 hearing and May 4, 1992, the day the government
filed its in limine motion. This was well within the seventy day limit
of the Act. 18 U.S.C. § 3161(c)(1).
III.
Curry also argues his sentence should be overturned because of
errors that occurred during his trial. We discuss his claims in turn.
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A.
Curry contends that he was unfairly prejudiced by the expert testi-
mony of Special Agent J. Andrew McColl. Agent McColl's testimony
concerned transcripts of intercepted telephone conversations between
Curry and his co-conspirators during the course of an attempted
cocaine delivery on October 17, 1990. Agent McColl helped explain
the conversations to the jury using his knowledge of the methods,
operation, and jargon of drug traffickers. Curry concedes that expert
testimony of this type is proper but argues that McColl exceeded
proper bounds by giving his opinion as to the meaning of common
terms and other phrases which did not require any special interpreta-
tion. This improper testimony, Curry argues, prejudiced him because
it allowed the government to put McColl's "stamp of approval" on its
case.
On the contrary, we find that Agent McColl's testimony was either
within proper bounds or did not unfairly prejudice Curry. "We have
repeatedly upheld the admission of law enforcement officers' expert
opinion testimony in drug trafficking cases." United States v.
Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994) (citation omitted). This
sort of testimony is useful to jurors because they are often unfamiliar
with the behavior and special jargon of drug dealers. For example, in
one instance Agent McColl testified that the number 23 appended to
the end of a page received by one of Curry's co-conspirators was a
code identifying the sender. This is precisely the sort of information
that a juror might not know without the help of an expert.
Curry's arguments go to the weight of McColl's testimony, not its
admissibility. He merely disagrees with some of McColl's interpre-
tations. Curry, however, had a full opportunity to cross-examine
McColl and to provide his own explanations of the damaging conver-
sations during his defense. The jury simply weighed the evidence and
found McColl's testimony credible.
B.
Curry further maintains that he was prejudiced because the district
court gave the jury a "willful blindness" instruction. In this case, there
was strong evidence of Curry's actual knowledge, including taped
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conversations and videotapes of Curry engaging in drug transactions.
Given this evidence, a willful blindness instruction would at worst
have been surplusage and would not have created any risk of preju-
dice. See United States v. Boutte, 13 F.3d 855, 859 (5th Cir. 1994).
Furthermore, we find no impropriety in the form of the district court's
instruction. The district court clearly stated that for the jury to infer
knowledge they would have to find that Curry had"deliberately
closed his eyes." Nowhere do the district court's instructions begin to
suggest that negligence or mistake would be sufficient. Indeed, the
district court's instructions were identical in all essential respects to
those we approved in United States v. Mancuso , 42 F.3d 836, 846 (4th
Cir. 1994).
In sum, we find Curry's contentions of trial error to be without
merit. We therefore affirm his convictions.
IV.
Curry contends that we should remand this case to the district court
for resentencing because the court mistakenly concluded it was pow-
erless to grant Curry a sentencing departure under the law. At his sen-
tencing hearing, Curry presented several factors which he argued took
his case outside of the "heartland" of the appropriate sentencing
guideline. Among the factors presented were reports from experts on
Curry's psychological makeup, evidence of post-offense rehabilita-
tion, his family situation, and the argument that he was a "minor
player" in the drug distribution scheme. Curry does not argue that any
one of these factors would be sufficient to support a downward depar-
ture but rather that the judge should have looked at these factors in
combination to determine whether his case warranted a downward
departure. In response to Curry's argument the district court stated:
I don't have any difficulty . . . in terms of concluding that
there simply isn't any legal basis that would support my
concluding that it amounts up to a consideration that the
Sentencing Commission should have taken into consider-
ation. Regretfully I have to conclude that there simply are
no factors either that would warrant legally speaking, or fac-
tually under the law my departing from the guidelines.
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Curry contends that the district court's response indicates that the
court believed it had no legal authority to consider his claim. We dis-
agree with Curry's interpretation. In this case, the individual factors
that Curry argues should have supported a downward departure when
considered in combination are either plainly improper or factors that
had already been considered by the district court. The district court's
statement does not reflect a belief that it had no authority to grant a
downward departure. On the contrary, the statement reflects the dis-
trict court's proper conclusion that Curry's attempt to aggregate
impermissible and already considered factors was both factually and
legally insufficient to support a downward departure on a basis
unmentioned in the Guidelines. We thus affirm Curry's sentence.
V.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
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