United States of America v. Damon Dunbar

*The Honorable Karl S. Forester, Chief United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0041P (6th Cir.)
File Name: 04a0041p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAMON DUNBAR,
Defendant-Appellant.
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No. 02-1766
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-80778—Denise Page Hood, District Judge.
Argued: October 30, 2003
Decided and Filed: February 9, 2004
Before: MOORE and ROGERS, Circuit Judges;
FORESTER, Chief District Judge.*
_________________
COUNSEL
ARGUED: Suzanna Kostovski, Detroit, Michigan, for
Appellant. Wayne F. Pratt, ASSISTANT UNITED STATES
2 United States v. Dunbar No. 02-1766
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Suzanna Kostovski, Detroit, Michigan, for Appellant. Wayne
F. Pratt, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-
Appellant, Damon Dunbar (“Dunbar”), appeals his conviction
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
concurrent 151-month terms of imprisonment. Dunbar raises
two arguments on appeal. First, Dunbar argues that his
conviction should be vacated and his indictment dismissed
because the delay between his indictment and his trial
violated the Speedy Trial Act. Second, if his conviction is
upheld, Dunbar argues that his sentence should be vacated
because the district court erred by including fifty-six grams of
cocaine base in the calculation of his sentence based upon
evidence that was not sufficiently reliable.
For the following reasons, we AFFIRM Dunbar’s
conviction and sentence.
I. BACKGROUND
A. Offense Conduct
An investigation by a task force comprised of federal, state,
and local law enforcement officers led to Dunbar’s arrest.
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
made three controlled purchases. On May 19, 1999, Dunbar

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No. 02-1766 United States v. Dunbar 3
sold 12.1 grams of crack cocaine to an undercover DEA
agent. At trial, the government produced evidence that
Dunbar possessed additional crack cocaine during this
transaction, and that a conservative estimate of this additional
crack cocaine was two ounces. On June 8, 1999, Dunbar sold
1.1 grams of heroin to an undercover police officer. Then, on
June 15, 1999, Dunbar sold twelve grams of heroin to an
undercover police officer. Dunbar was arrested on
November 3, 2000.
B. Speedy Trial Act Background
On October 26, 2000, a one-count criminal complaint was
sworn in the Eastern District of Michigan, charging Dunbar
with distribution of heroin, in violation of 21 U.S.C.
§ 841(a)(1). The criminal complaint states that the offense
occurred on or about June 15, 1999, and charges Dunbar for
his conduct during the third controlled buy. On November 3,
2000, the complaint was unsealed, and Dunbar appeared
before a magistrate judge; the magistrate judge denied Dunbar
bond and ordered him detained. On November 9, 2000, a
three-count indictment was returned against Dunbar in the
Eastern District of Michigan. Count One of the indictment
charges Dunbar with distribution of five grams or more of a
mixture or substance containing cocaine base (crack cocaine)
on or about May 19, 1999, in violation of § 841(a)(1),
(b)(1)(B)(ii), and (b)(1)(B)(iii). Counts Two and Three of the
indictment charge Dunbar with distribution of heroin, in
violation of § 841(a)(1) and (b)(1)(C), on or about June 8,
1999, and on or about June 15, 1999, respectively.
On November 13, 2000, Dunbar made his initial
appearance on the charges contained in the indictment and
entered a plea of not guilty. Dunbar remained in detention
following his plea. After Dunbar was arraigned, his retained
counsel, Charles D. Lusby (“Lusby”), and the government
signed an undated proposed order for a continuance,
stipulating that a period from November 13, 2000 to January
5, 2001 would be excludable delay for purposes of the Speedy
4 United States v. Dunbar No. 02-1766
Trial Act. The proposed order indicates that the parties
agreed to use this period to prepare pretrial motions and to
prepare for trial, and it also indicates that the defendant was
going to use this period to decide whether to plead guilty.
The proposed order states that the parties stipulated that the
ends-of-justice within the meaning of 18 U.S.C. § 3161(h)(8)
would be served by the continuance due to the complexity of
the case. As a result of clerical error by the parties, this order
was never presented to the district court.
On November 30, 2000, a magistrate judge held a pretrial
conference and entered a summary order, noting that the
parties stipulated to extend the time for filing motions until
January 5, 2001. This summary order was approved by the
district judge.
Although it is not reflected at all on the district court’s
docket sheet, the parties agree that they appeared before a
magistrate judge on March 14, 2001, regarding a potential
conflict of interest issue involving Dunbar’s retained counsel,
Lusby. The potential conflict of interest issue arose during
pretrial discussions between the government and Lusby about
the possibility of a plea agreement. The government’s plea
offer was contingent upon the defendant providing
“substantial assistance” in the form of information regarding
other individuals. During these discussions, Lusby indicated
that he might have a potential conflict of interest between
Dunbar and his other clients, who might be the subject of
Dunbar’s assistance. The government and Lusby agreed that
Dunbar should consider requesting appointed counsel for the
purpose of advising Dunbar about the potential conflict of
interest issue. In an appearance before a magistrate judge, on
May 14, 2001, Dunbar requested more time to confer with
Lusby before requesting appointed counsel. In another
appearance before the magistrate judge, on May 15, 2001,
Dunbar again failed to request appointed counsel, and the
matter was adjourned so that the government could file a
motion to resolve the potential conflict of interest issue. The
government filed its motion on May 16, 2001. On May 22,

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No. 02-1766 United States v. Dunbar 5
2001, Lusby filed a response to the government’s motion to
resolve the potential conflict of interest issue and also filed a
motion to withdraw as Dunbar’s counsel. On May 24, 2001,
the district court granted Lusby’s motion to withdraw as
defense counsel; on May 25, 2001, the district court
appointed the Federal Defender’s Office to represent Dunbar,
which mooted the government’s motion to resolve the conflict
of interest issue. Eventually, Timothy Murphy (“Murphy”)
was appointed by the Federal Defender’s Office as Lusby’s
replacement.
On May 24, 2001, Dunbar personally made a motion to
review his detention. On May 30, 2001, the district court held
a hearing on Dunbar’s motion to review his detention and also
considered whether Dunbar’s right to release under § 3164 of
the Speedy Trial Act had been violated because Dunbar had
been detained for more than ninety days and the docket sheet
did not reflect any periods of excludable delay. The district
court was unable to resolve the motion on May 30, 2001 and
scheduled another hearing for June 4, 2001.
The dialogue between the parties and the court during the
June 4, 2001 hearing is important because Dunbar’s ability to
obtain a dismissal of the indictment for a violation of his
rights under § 3161 of Speedy Trial Act depends upon
whether he made a motion to dismiss the indictment for
violation of the seventy-day rule. At the outset, the parties
and the court considered the purposes of the June 4, 2001
hearing to be determining whether § 3164 had been violated
because Dunbar had been detained for more than ninety days
and reviewing Dunbar’s detention. After discussing whether
Dunbar should be released pursuant to the ninety-day rule for
§ 3164, Dunbar’s counsel raised the issue of whether the
indictment should be dismissed pursuant to the seventy-day
rule for § 3161. The following exchange took place between
Dunbar’s counsel and the Court:
MR. MURPHY [Dunbar’s counsel]: T h e r e i s a n
additional issue,
6 United States v. Dunbar No. 02-1766
though, and that
is the speedy
trial.
THE COURT: Okay.
MR. MURPHY: Because we have 79 days of
nonexcludable de la y by m y
computation.
THE COURT: Well, I think we’re at, on the speedy
trial clock, of 84 days.
MR. MURPHY: Well, I have 79, but that was I don’t
know since when. But, we have over
70, that’s the issue.
And that, of course, gives rise to —
well, under those circumstances, I
would move to dismiss.
Now, I’ve advised Mr. Dunbar that the
Government is very well — that the
Court has discretion to dismiss with or
without prejudice. Under these
circumstances, I would make no
prediction, but I would certainly share
my opinions with Mr. Dunbar about
which was more likely. And that if
the Court chose to dismiss without
prejudice, the Government would
likely seek a delay to reindict so that
would be an exercise in futility.
We haven’t fully discussed that issue.
THE COURT: Okay.
J.A. at 65 (emphases added). The court then discussed
whether various periods constituted excludable delay pursuant

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No. 02-1766 United States v. Dunbar 7
1It is not clear whether the d istrict court found additional days
excludable, beyond those it explicitly mentioned during its findings
imme diately preceding its oral ruling. By our calculations, subtracting the
days the district court explicitly found excludable, m ore tha n ninety days
passed between Dunbar’s indictment and the June 4, 2001 hearing.
However, because the district court released Dunbar on bond , and because
on appeal we find additional days excludable, this calculation error was
harmless.
§ 3161(h) of the Speedy Trial Act. J.A. at 70-79. The court
found that up to that point, only eighty-four days of non-
excludable delay had passed, therefore, the ninety-day pretrial
detention rule of § 3164 had not been violated.
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
November 9, 2000, the day that Dunbar was indicted, but that
November 9, 2000 was excludable. The district court found
that three non-excludable days had passed from November
10, 2000 through November 12, 2000. The district court then
concluded that November 13, 2000, the day Dunbar was
arraigned, was excludable. The district court excluded a
thirty-day period in January and February 2001 for plea
negotiations. The district court then concluded that
March 14, 2001 through May 24, 2001 was excludable due to
the potential conflict of interest issue. The district stopped
counting the days as of May 24, 2001, but we note that the
period between May 25, 2001 and June 4, 2001 should have
been considered excludable delay pursuant to § 3161(h)(1)(F)
because Dunbar made an oral motion to review his bond at
the May 24, 2001 hearing and the motion was not disposed of
until June 4, 2001.1
After making its findings regarding excludable delay, the
district court made the following oral ruling:
THE COURT: And therefore, Section 3164 has not
been violated. At least the Court finds it
8 United States v. Dunbar No. 02-1766
has not been violated to date, meaning
that the Defendant has not been detained
solely because he is awaiting trial in
violation of 18 USC Section 3164(a).
. . .
And so, if you are making a motion to
dismiss based on the speedy trial clock
having run, that’s denied. Your motion
for an evidentiary hearing is also at this
time denied without prejudice.
J.A. at 78-79. Following the June 4, 2001 hearing, the district
court issued a written order, dated June 8, 2001, recording its
previous rulings on Dunbar’s oral motions. The order
provides in pertinent part:
IT IS ORDERED that [Dunbar’s] oral Motion for
Release on Bond pursuant to 18 U.S.C. § 3164 is
DENIED, the Court finding that § 3164 has not been
violated as more fully set forth on the record.
IT IS FURTHER ORDERED that [Dunbar’s] oral
Motion to Dismiss for a violation of the Speedy Trial Act
is DENIED.
Docket No. 32. At the June 4, 2001 hearing and again in its
June 8, 2001 written order, the district court also denied
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.
Following several adjournments and continuances, voir dire
for Dunbar’s trial began on November 1, 2001. On
November 6, 2001, the jury found Dunbar guilty of all three
counts of the indictment. On June 6, 2002, the district court
sentenced Dunbar to three concurrent terms of 151 months of
imprisonment; concurrent terms of eight years of supervised

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No. 02-1766 United States v. Dunbar 9
release on Count One, six years of supervised release on
Count Two, and six years of supervised release on Count
Three.
On March 1, 2002, defense counsel made a motion for
reconsideration of Dunbar’s oral motion to dismiss his
indictment due to violation of § 3161 of the Speedy Trial Act.
At a hearing on Dunbar’s motion for reconsideration, on
March 21, 2002, the district judge re-analyzed the period
between Dunbar’s indictment and the commencement of his
trial. The district court again concluded that the Speedy Trial
clock began to run on November 9, 2000, the day Dunbar was
indicted, but that November 9, 2000 was excludable. The
district court found that three non-excludable days had passed
from November 10, 2000 through November 12, 2000. The
district court again concluded that November 13, 2000, the
day Dunbar was arraigned, was excludable. At this hearing,
the district court found an additional fifty-three days were
excludable due to the proposed order signed by the parties.
The district court found that fifteen non-excludable days had
passed from January 6, 2001 through January 20, 2001. The
district court found that the parties had engaged in plea
negotiations from January 21, 2001 through February 19,
2001, and thus these thirty days were excludable. The district
court noted that some of the time between February 20, 2001
and March 14, 2001 could potentially be excludable, but that
due to its other calculations, it was not necessary for it to
make this determination in order to deny Dunbar’s motion.
The district court then found that March 14, 2001 through
May 24, 2001 was excludable due to the potential conflict of
interest issue. The district court also found that all of the time
from May 24, 2001 through November 1, 2001 was
excludable due to the pendency of Dunbar’s motion to review
his detention, continuances and adjournments that Dunbar
either requested or consented to, and an adjournment from
August 6, 2001 through September 26, 2001 due to the
unavailability of an attorney and a witness. Finally, the
district court concluded that the Speedy Trial clock stopped
10 United States v. Dunbar No. 02-1766
on November 1, 2001, with the commencement of voir dire.
See J.A. at 357-65.
Based upon the foregoing analysis, the district court
calculated that only forty non-excludable days passed
between Dunbar’s indictment and the commencement of his
trial. The court then explicitly ruled that there was no
violation of the seventy-day rule of § 3161. On March 23,
2002, the district court entered an order denying Dunbar’s
motion for reconsideration.
On June 11, 2002, Dunbar timely appealed his jury
conviction of November 6, 2001, the judgment of sentence of
June 6, 2002, and the denial by the district court on March 23,
2002 of his motion to dismiss the indictment due to a
violation of the Speedy Trial Act.
C. Drug Quantity Background
At the time of sentencing, the district judge adopted the
guidelines applications contained in the Presentence Report
(“PSR”). Accordingly, Dunbar’s total offense level was set
at thirty-two and Dunbar was sentenced to three concurrent
151-month terms of imprisonment. In the PSR, Dunbar’s
offense level was determined based upon sixty-eight grams of
crack cocaine and thirteen grams of heroin. Therefore,
Dunbar’s offense level was determined based upon the twelve
grams of crack cocaine that Dunbar sold during the May 19,
1999 transaction, the 1.1 grams of heroin that Dunbar sold
during the June 8, 1999 transaction, the twelve grams of
heroin that Dunbar sold during the June 15, 1999 transaction,
and the additional fifty-six grams of crack cocaine, which was
“believed to be a conservative estimate of what the defendant
possessed during the distribution of 12 grams [of crack
cocaine] on May 19, 1999.” J.A. at 394-95 (PSR ¶¶ 14, 15,
16, 19). At Dunbar’s sentencing hearing on March 21, 2002,
the district court adjusted the drug amount and determined
that Dunbar should only be held responsible for sixty grams
of crack cocaine, which represents the twelve grams that

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No. 02-1766 United States v. Dunbar 11
Dunbar actually sold during the May 19, 1999 transaction and
an additional forty-eight grams, which is a more conservative
estimate of the amount the DEA agent testified that he
observed during the transaction. This adjustment in the drug
quantity, however, did not affect Dunbar’s offense level.
At Dunbar’s jury trial, David Livingston, the undercover
DEA agent who was present during the May 19, 1999
transaction, testified that during the transaction Dunbar
showed him four to five, half-ounce packages of crack
cocaine, in addition to the half-ounce package the DEA agent
purchased from Dunbar. These additional packages were not
recovered. Livingston further testified that while a full half-
ounce package should weigh fourteen grams, dealers typically
sell half-ounce packages that actually weigh between twelve
and thirteen grams to save product and to avoid stiffer
sentences. At the sentencing hearing, forty-eight grams of
crack cocaine, which represents the weight of four, twelve-
gram bags, was attributed to Dunbar to account for the
additional unrecovered crack cocaine.
II. ANALYSIS
A. Speedy Trial Act
On appeal, we review de novo the district court’s
application of the Speedy Trial Act. United States v. Salgado,
250 F.3d 438, 453 (6th Cir.), cert. denied, 534 U.S. 936
(2001). However, we review for abuse of discretion the
district court’s decision to grant an ends-of-justice
continuance pursuant to § 3161(h)(8). United States v.
Howard, 218 F.3d 556, 563 (6th Cir. 2000).
On appeal, Dunbar argues that his indictment should have
been dismissed under § 3161 of the Speedy Trial Act because
eighty-four non-excludable days passed between the day he
was indicted and the day his trial commenced. Dunbar bases
his argument on two different rationales. First, Dunbar
contends that at the June 4, 2001 hearing on his motion for
12 United States v. Dunbar No. 02-1766
bond, the district court determined that eighty-four non-
excludable days had passed since Dunbar was indicted, and
that the district court was bound to abide by this ruling under
the law-of-the-case doctrine. Second, Dunbar argues that
even if the district court was permitted to revisit the issue, the
period covered by the proposed order is not excludable as an
ends-of-justice continuance, and therefore, eighty-four non-
excludable days passed before Dunbar’s trial commenced.
Additionally, Dunbar argues that the court should dismiss the
indictment with prejudice because over a year has passed
since Dunbar was indicted, because the government’s key
witness has been killed thereby depriving Dunbar of the
opportunity to cross-examine, and because the purpose of the
Act would be thwarted if courts were not required to adjust
their procedures to comply with the Act.
The government argues that Dunbar waived his ability to
argue that his rights were violated under § 3161 of the Speedy
Trial Act, on the theory that Dunbar failed to make a motion
to dismiss his indictment before his trial commenced. The
government further argues, asserting various theories, that
fewer than seventy non-excludable days passed between the
day Dunbar was indicted and the day his trial commenced.
The government contends that Dunbar should be estopped
from denying that the period covered by the proposed order
is excludable delay because he consented to the delay,
because the period should be excluded as “other proceedings”
involving the defendant, and because the law-of-the-case
doctrine is inapplicable, as this doctrine does not apply to
interlocutory decisions of the district court. The government
further asserts that any dismissal for violation of § 3161
would have been without prejudice and that the government
would have reindicted Dunbar; therefore, according to the
government, the failure to dismiss was harmless.
The Speedy Trial Act protects defendants’ and the public’s
interest in timely criminal trials. United States v. Noone, 913
F.2d 20, 28 (1st Cir. 1990), cert. denied, 500 U.S. 906 (1991).
Section § 3161(c)(1) of the Act requires that a defendant’s

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No. 02-1766 United States v. Dunbar 13
trial commence within seventy days of the date he was
indicted or the date he first appeared in court, whichever is
later. United States v. Tinson, 23 F.3d 1010, 1012 (6th Cir.
1994). Section 3161(c)(1) states:
In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or
indictment with the commission of an offense shall
commence within seventy days from the filing date (and
making public) of the information or indictment, or from
the date the defendant has appeared before a judicial
officer of the court in which such charge is pending,
whichever date last occurs. If a defendant consents in
writing to be tried before a magistrate judge on a
complaint, the trial shall commence within seventy days
from the date of such consent.
18 U.S.C. § 3161(c)(1). The Act provides the flexibility
necessary to conduct fair criminal trials by excluding days
from the seventy-day Speedy Trial clock for various pretrial
proceedings. See 18 U.S.C. §§ 3161(h)(1)-(9); United States
v. Mentz, 840 F.2d 315, 325 (6th Cir. 1988). If, however,
more than seventy non-excludable days pass before the
commencement of the trial, the Act mandates dismissal of the
indictment upon motion by the defendant. 18 U.S.C.
§ 3162(a)(2). The trial court has discretion to decide whether
to dismiss the indictment with or without prejudice, but in
making that decision, the trial court must weigh various
statutorily prescribed factors. See id.
In the present case, Dunbar was indicted on November 9,
2000, and his trial did not commence until November 1, 2001,
which was 357 days later. Thus, Dunbar “has presented a
prima facie case of a Speedy Trial Act violation.” Mentz, 840
F.2d at 326. The parties agree that much of this time is
excludable under § 3161(h), but Dunbar argues that eighty-
four non-excludable days passed before his trial commenced.
The government, however, contends that, regardless of how
many non-excludable days passed, Dunbar waived his ability
14 United States v. Dunbar No. 02-1766
2Section 3164 provides that a defendant, who is detained so lely
because he is awaiting trial, must be released o n bond if he is detained for
more than nine ty non-excludable days prior to the commencement of trial.
18 U.S.C. § 3164 . While § 3161 (c)(1) ensures that a defendant is brought
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
defendant is not detained too long prior to trial and begins to run from the
defendant’s first day of confinement. See 18 U.S.C. §§ 3161(c)(1) and
3164(b ). Despite the d istrict court’s finding that § 3164 had not been
violated, it released Dunbar on a $10,000 unsecured bond on June 4,
200 1. Dunbar do es not appeal the district court’s ruling that § 3164 was
not violated.
to argue that his indictment should be dismissed due to a
violation of Speedy Trial Act, on the theory that Dunbar
failed to make a motion to dismiss his indictment before the
commencement of his trial.
Section 3162(a)(2) “requires that the defendant bring a
motion for dismissal under the Speedy Trial Act prior to
trial.” United States v. White, 985 F.2d 271, 274 (6th Cir.
1993). This court has held that a defendant waives the right
to move for dismissal for a violation of § 3161 if he does not
raise the issue until appeal. Id. at 274-75.
During the May 24, 2001 hearing, Dunbar moved for
reconsideration of his pretrial detention due to a possible
violation of his rights under § 3164.2 The district court
scheduled a hearing to review Dunbar’s detention on May 30,
2001, but was unable to resolve the § 3164 issue at the May
30, 2001 hearing, and continued the hearing to June 4, 2001.
At the June 4, 2001 hearing, the district court calculated that
eighty-four non-excludable days had passed since Dunbar’s
indictment and accordingly ruled § 3164 had not been
violated. Because the district court found that more than
seventy non-excludable days had passed since Dunbar’s
indictment, defense counsel indicated that he “would move to
dismiss.” J.A. at 65. Defense counsel then stated that “if the
Court chose to dismiss without prejudice, the Government
would likely seek a delay to reindict so that would be an

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No. 02-1766 United States v. Dunbar 15
3W hen the district judge stated that Du nba r’s motion to reconsider
was untimely, defense counsel stated that she was actually seeking a
ruling on the previous motion to dismiss because she believed that the
district court never actually ruled on that motion. The district court’s
docket entry No. 32, however, reflects that the court did rule on the
motion to d ismiss.
exercise in futility.” J.A. at 65. While Dunbar’s motion to
dismiss could have been much clearer, the district court
understood that Dunbar was in fact making a motion to
dismiss, because the district judge stated, “if you are making
a motion to dismiss based on the speedy trial clock having
run, that’s denied.” J.A. at 79. Furthermore, in a written
order dated June 8, 2001, the district court explicitly ruled
“that [Dunbar’s] oral Motion to Dismiss for a violation of the
Speedy Trial Act is DENIED.” Docket No. 32. Because
Dunbar made a motion to dismiss his indictment at the June
4, 2001 hearing, prior to the commencement of his trial,
Dunbar has not waived his right to argue that his indictment
should have been dismissed due to a violation of § 3161.
Although Dunbar did not waive his right to argue that his
indictment should have been dismissed due to a violation of
§ 3161, at a post-trial hearing on March 21, 2002, the district
court denied his motion for reconsideration of his oral motion
to dismiss his indictment because the motion for
reconsideration was untimely and also on the merits.3 At the
March 21, 2002 hearing, the district court found that only
forty non-excludable days passed between the day Dunbar
was indicted and the day his trial commenced, and thus the
court concluded that § 3161 had not been violated. On
appeal, Dunbar contends that the district court erred by
recalculating the number of non-excludable days that passed
before his trial commenced, on the theory that the court was
bound by the law-of-the-case doctrine to its June 4, 2001
ruling that eighty-four non-excludable days had passed.
The law-of-the-case doctrine is rigidly applied to enforce a
lower court’s obedience to a higher court; however, the
16 United States v. Dunbar No. 02-1766
doctrine is more flexibly applied to reconsideration of earlier
decisions by the same court or a coordinate court. Gillig v.
Advanced Cardiovascular Sys., 67 F.3d 586, 589 (6th Cir.
1995). “At the trial court level, the doctrine of the law of the
case is little more than a management practice to permit
logical progression toward judgment. Prejudgment orders
remain interlocutory and can be reconsidered at any time.”
Id. (quoting 1b James Wm. Moore et al., Moore’s Federal
Practice ¶ 0.401 (2d ed. 1994)). The law-of-the-case doctrine
does not remove a district court’s jurisdiction to reconsider,
or otherwise preclude a district court from reconsidering, an
issue previously decided in the case. Id. at 590. We have
previously refused to apply the law-of-the-case doctrine to
preclude review of various prejudgment rulings. See, e.g.,
Polec v. Northwest Airlines, Inc. (In re Air Crash Disaster),
86 F.3d 498, 517-18 (6th Cir. 1996) (reconsidering rulings
about discovery); Gillig, 67 F.3d at 590 (reconsidering
preclusive effect of liability release given to employer by
plaintiff).
In the present case, we do not consider the law-of-the-case
doctrine to have precluded the district court from
reconsidering its June 4, 2001 finding that eighty-four non-
excludable days had passed. First, the June 4, 2001 finding
was made in the context of the court’s decision on Dunbar’s
motion to reconsider his detention pursuant to the ninety-day
rule contained in § 3164; therefore, once the district court
found that fewer than ninety 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
number of non-excludable days is an interlocutory ruling, and
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
ruling because Dunbar explicitly argued that the seventy-day
rule contained in § 3161 had been violated and that the
indictment should have been dismissed; therefore, the passage
of time might invalidate his jury conviction. Finally,
regardless of the law-of-the-case doctrine, we may recalculate

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No. 02-1766 United States v. Dunbar 17
the number of non-excludable days on appeal. United States
v. Jenkins, 92 F.3d 430, 439 (6th Cir. 1996), cert. denied, 520
U.S. 1170 (1997).
Dunbar was indicted on November 9, 2000. Although the
Speedy Trial clock began to run on November 9, 2000
because Dunbar was in detention on the criminal complaint at
that time, the day of indictment is excluded as “other
proceedings” pursuant to § 3161(h)(1). Mentz, 840 F.2d at
326. Dunbar was arraigned on the indictment on
November 13, 2000, and that date is also excluded as “other
proceedings” pursuant to § 3161(h)(1). Id. The district court
found, and Dunbar does not dispute, that the parties were
engaged in plea negotiations for thirty days, from January 21,
2001 to February 19, 2001. We have held that plea
negotiations may be excluded as “other proceedings” pursuant
to § 3161(h)(1). United States v. Bowers, 834 F.2d 607, 609-
10 (6th Cir. 1987).
The district court also found, and Dunbar does not dispute,
that the potential conflict of interest issue was brought to the
court’s attention in a hearing before a magistrate judge on
March 14, 2001, at which time the government expected
Dunbar to request appointed counsel for the purpose of
advising him during the plea negotiations. Dunbar did not
request appointed counsel at the March 14, 2001 appearance,
nor did Dunbar request appointed counsel at subsequent
appearances before a magistrate judge on May 14, 2001 and
May 15, 2001. Although no formal motion was made before
or at the March 14, 2001 appearance, we hold that March 14,
2001 through May 15, 2001 may be excluded under
3161(h)(1) as “other proceedings concerning the defendant.”
As the First Circuit has sensibly pointed out, a defendant
should not be able to stall in obtaining appropriate counsel in
order to obtain a dismissal for a violation of § 3161(c)(1). See
Noone, 913 F.2d at 28.
The government finally made a motion to resolve the
potential conflict of interest issue on May 16, 2001. The
18 United States v. Dunbar No. 02-1766
conflict of interest issue was not resolved until the district
court granted Lusby’s motion to withdraw as defense counsel
at a hearing on May 24, 2001. The period from May 16,
2001, the day the government filed its motion to resolve the
conflict of interest, until May 24, 2001, the day the district
court held and concluded its hearing on the motion, is
excludable under § 3161(h)(1)(F). See Henderson v. United
States, 476 U.S. 321, 331-32 (1986); Mentz, 840 F.2d at 326.
The Supreme Court has distinguished between motions that
require a hearing and motions that do not require a hearing.
For motions that require a hearing, § 3161(h)(1) provides for
the automatic exclusion of “the entire period between the
filing of the motion and the conclusion of the hearing” on that
motion. Henderson, 476 U.S. at 329. Therefore, the entire
period between the filing of the motion on May 16, 2001,
until the district court held and concluded its hearing on that
motion on May 24, 2001, is automatically excluded under
§ 3161(h)(1)(F).
At the May 24, 2001 hearing, Dunbar personally made a
motion to reconsider his detention, and the court set a hearing
on that motion for May 30, 2001. The district court was
unable to resolve that motion on May 30, 2001, and continued
the hearing until June 4, 2001. At the June 4, 2001 hearing,
the district court re-analyzed the period between the date
Dunbar was indicted and the date his trial commenced, and
the court concluded that only eighty-four days of non-
excludable delay had passed. Nevertheless, the district court
ordered that Dunbar be released pursuant to a $10,000
unsecured bond. We hold that the period from May 24, 2001
through June 4, 2001 is automatically excludable pursuant to
§ 3161(h)(1)(F), as it constitutes delay between the filing of
a motion and the conclusion of a hearing on that motion. See
Henderson, 476 U.S. at 331-32; Mentz, 840 F.2d at 326.
At the March 21, 2002 hearing, the district court found that
the period between November 13, 2000 and January 5, 2001
was excludable delay because the parties had signed a
proposed order stipulating that the period would be excluded

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No. 02-1766 United States v. Dunbar 19
as an ends-of-justice continuance pursuant to § 3161(h)(8).
Although the proposed order was not timely presented to the
district court, the court retroactively found that it would have
granted the motion, and thus determined that the time could
be excluded under § 3161(h)(8). On appeal, Dunbar argues
that the district court did not have authority to grant this
motion nunc pro tunc, as § 3161(h)(8) requires the district
court to conduct a contemporaneous balancing test when
deciding whether to grant an ends-of-justice continuance.
Section 3161(h)(8)(A) provides for the exclusion of:
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.
Section 3161(h)(8)(B) requires the district court to consider
various factors when deciding whether to grant an ends-of-
justice continuance including, among other things, whether
failure to grant a continuance will make further proceedings
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
done prior to granting the continuance, and that the purpose
of the contemporaneous balancing test is to ensure that the
court actually grants the continuance to serve the ends of
20 United States v. Dunbar No. 02-1766
4Although a district court must conduct the balancing test prior to
granting a continuance on the basis of the ends-of-justice exception, the
district court may articulate its reasons after the fact. See United States
v. Cian ciola 920 F.2d 129 5, 12 99-1 300 (6th C ir. 199 0), cert. denied, 501
U.S. 1219 (1991).
justice, rather than merely rationalizes a delay after the fact.
United States v. Richmond, 735 F.2d 208, 215-16 (6th Cir.
1984).4
The government contends that the time period covered by
the stipulation may be excluded pursuant to § 3161(h)(1)
because the stipulation indicates that the parties agreed to use
the period from November 13, 2000 to January 5, 2001 to
prepare pretrial motions. While the government correctly
points out that delay may retroactively be excluded under
§ 3161(h)(1), we have previously held that time requested to
prepare pretrial motions may not be excluded as “other
proceedings concerning the defendant.” See United States v.
Moran, 998 F.2d 1368, 1370-71 (6th Cir. 1993). The
government relied on United States v. Crawford, 982 F.2d
199, 203 (6th Cir. 1993), which was decided six and one-half
months before Moran, for the proposition that time used to
prepare pretrial motions may be excluded pursuant to
§ 3161(h)(1). In the context of analyzing the entire period
between the date the defendant was indicted and the date his
trial commenced, Crawford states that a fifteen-day period
that the defendant’s attorney requested in order to file pretrial
motions may be excluded pursuant to § 3161(h)(1).
Crawford, 982 F.2d at 203. This statement, however, was not
necessary to the holding in Crawford because even after
excluding this fifteen-day period, we remanded the case with
instructions to vacate the defendant’s conviction and to
dismiss his indictment due to a violation of § 3161(c)(1). See
id. at 205. Moran, however, dealt exclusively with the issue
of whether time used to prepare pretrial motions may be
excluded, and actually held explicitly that such time is not
excludable because § 3161(h)(1)(F) only covers the time

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No. 02-1766 United States v. Dunbar 21
5W 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
motions may be excluded through an ends-of-justice continuance pursuant
to § 31 61(h)(8). See Moran, 998 F.3d at 1372. Such a continuance,
however, requires the district court to conduct the contemporaneous
balancing test. Id.
6The stipulation, which is in the form of a proposed order, pro vides:
The parties stipulate, and the Court finds, that this case is
sufficiently complex due to the volume of discovery and the
legal and factual issues presented that the filing of motions and
the trial of the case cannot be com pleted within the ordinary time
provided.
J.A. at 44.
period between the filing of a motion and the conclusion of a
hearing on that motion, thereby indicating that Congress did
not intend to exclude time used to prepare pretrial motions.
See Moran, 998 F.2d at 1370-71. Moran is controlling here.5
Therefore, the time period covered by the proposed order in
this case may not be excluded on the theory that time used to
prepare pretrial motions may be excluded pursuant to
§ 3161(h)(1).
The government also contends that the time period covered
by the proposed order may be excluded because Lusby’s
signature on the stipulation indicates that the defendant
agreed to the continuance, and thus the defendant should not
now be allowed to object to the delay.6 In two published
opinions, we have made the sweeping statement that where a
defendant requested or at least consented to delay pursuant to
an ends-of-justice continuance, he is barred from arguing that
such continuance was not in the interest of justice. United
States v. Howard, 218 F.3d 556, 562 (6th Cir. 2000); Monroe,
833 F.2d at 99. In Monroe, this statement was tempered by
the fact that the district court made contemporaneous findings
that would justify an ends-of-justice continuance, and on
appeal the defendant challenged the propriety of those
findings. Monroe, 833 F.2d at 99. In Howard, however, the
district court granted a continuance upon the defendant’s
22 United States v. Dunbar No. 02-1766
request without making substantial contemporaneous
findings. In a prior unpublished opinion, we recounted the
district court’s findings as follows: “The government was
opposed to the continuance; however, the court noted its
concern for fairness to both sides. The government asked if
‘this is a continuance being in the interests of justice under
the statute?’ The court stated that it was, and continued the
trial until August 15, 1994.” United States v. Howard, No.
94-6543,1997 WL 705077, at *2 (6th Cir. Nov. 6, 1997)
(citation omitted). On a subsequent appeal, we held:
“Because Howard requested this continuance, he is barred
from arguing that it was not in the interests of justice.”
Howard, 218 F.3d at 562. Howard indicates that when a
district court grants a continuance upon the defendant’s
request, we may uphold that continuance in the absence of
substantial contemporaneous findings.
Dunbar contends that this case is distinguishable because
the proposed order was never presented to the district court;
therefore, the district court did not make any
contemporaneous findings that would justify an ends-of-
justice continuance. Careful review of the record, however,
reveals that the district court did in fact grant a continuance,
pursuant to a “stipulation” encompassing most of the time
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
“stipulated” that pretrial motions would be not be due until
January 5, 2001. The district court’s docket sheet indicates
that the district judge approved this summary order. Thus,
although the district court did not state its reasons for granting
the continuance, it did grant the continuance to January 5,
2001 pursuant to the parties’ “stipulation.” By signing the
proposed stipulated order and also stipulating to the
continuance at the pretrial conference, Dunbar led the
prosecution to believe that he needed additional time to
prepare for trial, and that he agreed that the continuance
served the ends of justice. Moreover, by stipulating to the
continuance at the pretrial conference, Dunbar led the district

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No. 02-1766 United States v. Dunbar 23
court to believe that he needed additional time to prepare
pretrial motions.
Although we cannot be certain that the “stipulation” entered
into at the pretrial conference was identical to the proposed
order in all respects, we can assume that the proposed order
accurately reflects the parties’ intentions and the arguments
advanced during the pretrial conference. Thus, we hold that
the district court did in fact grant an ends-of-justice
continuance at the November 30, 2000 pretrial conference and
that granting an ends-of-justice continuance in order to file
pretrial motions is permissible under Monroe; therefore, the
district court did not abuse its discretion. Monroe, 833 F.2d
at 99. Moreover, having stipulated to the continuance,
Dunbar may not now argue that the continuance did not serve
the ends of justice. Howard, 218 F.3d at 562. We emphasize
that we are not holding that delay may be excluded in the
absence of any contemporaneous findings justifying an ends-
of-justice continuance. Rather, we are holding that the facts
of this case — the written stipulation, the notation of a
“stipulation” on the pretrial order, and the fact that Dunbar
did not complain about the delay until after the entire period
covered by the stipulation had passed — indicate that the
district court granted an ends-of-justice continuance, and that
Dunbar consented to that continuance. Therefore, we hold
that the period from November 30, 2000 through January 5,
2001 may be excluded as an ends-of-justice continuance.
Because the district court did not issue this order until
November 30, 2000, we will assume that the period from
November 14, 2000 through November 30, 2000 is not
excludable delay.
Voir dire in Dunbar’s trial commenced on November 1,
2001, and thus the Speedy Trial clock stopped running on that
date. Mentz, 840 F.2d at 326 n.21. At the March 21, 2002
hearing, the district court found that all of the delay between
June 4, 2001 and the beginning of voir dire in Dunbar’s trial
was excludable pursuant to § 3161(h)(1) or (h)(8). Dunbar
does not contest these findings on appeal. After subtracting
24 United States v. Dunbar No. 02-1766
7The Speedy Trial clock commenced on November 9, 2000, the day
Dunbar was indicted, b ut that date is excludab le. Three no n-excludab le
days passed from Novem ber 10, 2000 through November 12, 2000.
November 13, 2000, the day Dunba r was arraigned, is excludab le. W e
will assume that sixteen non-excludable days passed between November
14, 2000 and November 30, 2000. November 30, 2000 through
January 5, 20 01, the period covered by the “stipulation,” is exclud able
because the cou rt granted an ends-of-justice continuance. Fifteen non-
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
negotiations, is excludable. We assume, without deciding, that twenty-
two non-excludable days passed between February 20, 2001 through
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,
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 through June 4, 20 01 is excludable d ue to D unba r’s motion to
review his bond. Finally, all of the time between June 4, 200 1 and the
commencem ent of Dunba r’s trial on Novem ber 1, 2001 is excludable due
to repeated requests for continuances and an adjournment due to the
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
indicted and the day his trial commenced.
the delay covered by the ends-of-justice continuance granted
at the pretrial conference, we conclude that at most fifty-six
non-excludable days passed; therefore, the district court
correctly refused to vacate Dunbar’s conviction and to
dismiss his indictment.7 This holding makes it unnecessary
for us to determine whether the twenty-two days that passed
between February 20, 2001, when the government allegedly
learned of Lusby’s potential conflict of interest, and March
14, 2001, when the potential conflict of interest was brought
to the court’s attention, may be excluded as “other
proceedings concerning the defendant” pursuant to
§ 3161(h)(1).
B. Drug Quantity
This court reviews for clear error the district court’s
determination of the quantity of drugs attributable to a
defendant for sentencing purposes. United States v. Baro,

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No. 02-1766 United States v. Dunbar 25
15 F.3d 563, 568 (6th Cir.), cert. denied, 513 U.S. 912 (1994).
At sentencing, the government must prove the quantity of
drugs involved by a preponderance of the evidence. Id. at
569. “Where the amount is uncertain, the district court is
encouraged to ‘err on the side of caution’ and only hold the
defendant responsible for that quantity of drugs for which ‘the
defendant is more likely than not actually responsible.’” Id.
(quoting United States v. Walton, 908 F.2d 1289, 1302 (6th
Cir. 1990)). The evidence used to prove the quantity of drugs
must “have a minimal level of reliability beyond mere
allegation.” Id. (quoting United States v. West, 948 F.2d
1042, 1045 (6th Cir. 1991)).
In this case, the district court did not commit clear error by
considering the forty-eight grams of crack cocaine that the
defendant possessed during the May 19, 1999 transaction
when determining Dunbar’s offense level. At trial, the
undercover DEA agent who was present during the May 19,
1999 transaction testified that during the transaction, he told
Dunbar that the half-ounce package that he purchased felt a
little light. The DEA agent testified that, in response, Dunbar
showed him four to five additional half-ounce packages. The
agent further testified that while half-ounce packages should
weigh fourteen grams, they usually only weigh twelve to
thirteen grams on the street. The PSR stated that a
conservative estimate of the additional amount in the other
packages would be fifty-six grams, and added to that the
twelve grams actually sold by Dunbar in order to reach a total
of sixty-eight grams, which warranted an offense level of
thirty-two. At Dunbar’s sentencing hearing, on March 21,
2002, the district court found that forty-eight grams would in
fact be the most conservative estimate, and added to that the
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).
26 United States v. Dunbar No. 02-1766
We hold that district court did not commit clear error by
finding that the government had proven the drug quantity of
forty-eight grams by a preponderance of the evidence. The
government provided testimony of an eye-witness to the
transaction. Furthermore, this eye-witness was a DEA agent
who had experience with drugs sales and thus could reliably
estimate the quantity of and type of drug based upon his
observations. The cases relied upon by Dunbar for his
argument that the government’s evidence is not sufficient are
distinguishable because they involve estimates that a large
number of drug transactions occurred based solely on
extrapolations from small samples of actual drug transactions.
In these cases, the courts found that the extrapolations were
too speculative to meet the preponderance of the evidence
standard. See, e.g., United States v. Rivera-Maldonado, 194
F.3d 224, 230-33 (1st Cir. 1999) (drug quantity estimated
from two-hour composite tape showing a few transactions not
sufficient to establish quantity sold over course of five and
one-half month period by preponderance of the evidence);
Baro, 15 F.3d at 569 (pattern of kilogram purchases not
sufficient to establish quantity by preponderance of the
evidence). Conversely, in this case, the DEA agent actually
observed the packages, Dunbar indicated that the packages
were half-ounces of crack cocaine by offering them in lieu of
the half-ounce package that he sold to the DEA agent, and the
district court calculated the forty-eight-gram quantity using
the most conservative estimate possible.
III. CONCLUSION
Based on the foregoing analysis, we AFFIRM Dunbar’s
conviction and sentence.

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