United States of America v.  Michael Osteen

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4276 
MICHAEL OSTEEN,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-98-524-DWS, CR-99-73-DWS)
Argued: May 10, 2001
Decided: June 29, 2001
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Luttig and Judge Traxler joined.
COUNSEL
ARGUED: Janet Carol Brooks, RICHARD A. HARPOOTLIAN,
P.A., Columbia, South Carolina, for Appellant. Jane Barrett Taylor,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee. ON BRIEF: Richard A. Harpootlian, RICHARD A. HAR-
POOTLIAN, P.A., Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Columbia, South Carolina, for Appel-
lee.

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OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Michael Osteen challenges his conviction on drug and gun charges,
alleging violations of the Speedy Trial Act, 18 U.S.C. § 3161 (1994),
the prohibition against double jeopardy, and the rule announced in the
Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). Finding none of Osteen’s challenges to be meritori-
ous, we affirm.
I.
In December 1997, Captain David Florence of the Sumter County,
South Carolina Narcotics Division received a telephone call from a
drug agent in Johnson City, Tennessee. The agent told Captain Flor-
ence that he knew a confidential informant who was planning to
return to the Sumter area, and who could arrange controlled drug buys
from several people in that area, including Michael Osteen. Captain
Florence indicated that he would be interested in meeting with this
informant. The informant to whom the Tennessee agent referred was
David Osteen, Michael’s nephew.
When David arrived in Sumter, he contacted Captain Florence as
arranged, and agreed to participate in controlled buys of narcotics.
Captain Florence and David Osteen entered into an agreement
whereby Captain Florence would give David money to purchase
drugs from designated individuals with the purpose of collecting evi-
dence to aid in the prosecution of those individuals. To record the
transactions, appropriate equipment would be placed on David’s
body. The agreement also provided that the Sumter County Narcotics
Division would pay David for his work as an informant.
That same day, pursuant to his agreement with Captain Florence,
David contacted his uncle, Michael, to inquire about purchasing
methamphetamine. That night, David visited his uncle and purchased
approximately three and a half grams of methamphetamine. David
recorded the transaction. After purchasing the drugs, David met with
Captain Florence and his partner, Officer McGee, and turned the
drugs over to them.
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The following day, David again met with Captain Florence to set
up another controlled buy. After receiving money from Captain Flor-
ence, David went to his uncle’s house where he purchased another
three and a half grams of methamphetamine. As he had done the day
before, David recorded the transaction and then turned over the drugs
and the tape recording of the transaction to Captain Florence.
David then returned to his home in Tennessee. The next week, on
Captain Florence’s instructions, David called his uncle to arrange to
purchase a larger amount of drugs. On December 11, David came to
Michael’s house, as pre-arranged, to purchase an ounce of metham-
phetamine. When David arrived, Michael told him that they had to
wait for the "boy" to deliver the drugs. Not long thereafter, one of
Osteen’s co-defendants, Thomas Cockerill, arrived with the drugs,
and David purchased an ounce of methamphetamine. David testified
that Cockerill brought Michael an additional half of an ounce of
methamphetamine, which amount Michael kept. As usual, David
recorded the transaction and then met with Captain Florence to turn
over the drugs and the recording of the transaction.
The following week, David again contacted Michael to set up a
controlled buy, following Captain Florence’s instructions. Upon his
arrival in Sumter, David went to a house where Michael was doing
some painting work. He intended to purchase an ounce of metham-
phetamine, but the amount he was given was three tenths of a gram
short of an ounce. David again recorded the transaction and met with
Captain Florence, as was his custom. This was the last controlled buy
from Michael Osteen in which David Osteen participated.
Based on the evidence from the controlled buys, on May 20, 1998,
a grand jury indicted Michael Osteen and several co-defendants on
federal drug charges. On May 27, 1998, law enforcement officers
arrested Michael Osteen at his home. Following his arrest, Michael
gave the officers permission to search his home, an outdoor shed, and
his car. In the car, the officers found several firearms. Osteen had pre-
viously been convicted of a felony drug offense and therefore was
prohibited from possessing firearms.
Osteen was arraigned later that same day. Jury selection for his trial
was scheduled for July 1, 1998. On June 15, Osteen filed the first of
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several motions to dismiss the indictment against him. On June 30,
1998, the government moved for a continuance on the ground that the
parties were engaged in plea negotiations. All parties consented in
writing to the continuance, and the district court granted the motion.
The negotiations were ultimately unsuccessful and on July 21, 1998,
the government returned to the grand jury and obtained a superseding
indictment against Osteen and his co-defendants, which added to the
original indictment weapons charges based on the guns found in Ost-
een’s car. Osteen was arraigned on the superseding indictment on
August 10, 1998.
On September 4, 1998, Osteen filed a pro se motion to dismiss the
indictment for violations of the Speedy Trial Act. On October 30,
1998, the district court denied the motion on the ground that Osteen’s
pre-trial motions — which were, at that time, still pending before a
magistrate judge — had tolled the seventy-day Speedy Trial Act
period since June 15, 1998.
After two additional defendants were arraigned in October, jury
selection was scheduled for January 7, 1999. A jury was selected on
that date, but not sworn, and the trial was set for January 25, 1999.
The parties were prepared to proceed on January 25, but the trial was
continued due to the district judge’s illness. On February 1, counsel
for one of Osteen’s co-defendants moved for a continuance until the
next term of court, which began on February 3, because of a death in
his family. The district court granted the motion and excused the pre-
viously selected jury. Due to the delay, the government permitted its
primary witness, David Osteen, who had traveled to South Carolina
from Tennessee to testify, to return to his home.
On February 3, 1999, the parties selected a new jury and the trial
was set for February 8, 1999. The government, however, was unable
to contact David Osteen before the trial was to begin. On February 8,
the government moved for a continuance on the ground that David
was not present. The district court denied the motion. The government
then moved to dismiss, without prejudice, the drug charges until such
time as David Osteen could be located. The district court granted that
motion, and the parties proceeded to trial on the weapons charges
only. That same day, Osteen was convicted of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g) (Supp. II 1996).
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The following day, February 9, the government attorneys located
David Osteen. Knowing that its primary witness was available, the
government returned to the grand jury on February 17, 1999 and
sought an indictment against Michael Osteen on federal drug charges
based on the same set of facts as the previous indictment. Osteen was
arraigned on the drug charges on March 2, 1999. A jury was selected
on April 12, and on April 26, 1999 Osteen’s second trial began. He
was convicted the following day of several violations of 21 U.S.C.
§ 841 (1994).
In the pre-sentence report, the probation officer recommended for
the § 841 violations a base offense level of 32, on the ground that Ost-
een was responsible for distributing at least 558.99 grams of metham-
phetamine. The probation officer based this calculation on the amount
of drugs David purchased from Osteen during the controlled buys,
and on David’s testimony that, prior to purchasing methamphetamine
from his uncle in his role as a government informant, he had seen his
uncle with an ounce of methamphetamine on ten or twelve occasions,
and with a half of an ounce on ten or twelve more occasions. Osteen
objected to the amount of drugs attributed to him.
The district court held a sentencing hearing on November 10, 1999.
Because the parties could not agree on the amount of drugs properly
attributable to Osteen, the hearing was continued. A second hearing
was held on March 30, 2000. At that hearing, the district court held
Osteen responsible for 536.38 grams of methamphetamine, 68.6
grams from the controlled buys, and 467.78 grams based on David’s
testimony. The district court imposed a sentence of 210 months on the
drug charges, and a sentence of 120 months on the weapons charge,
to run concurrently. The district court also imposed a supervised
release term of eight years. Osteen now appeals his convictions and
sentence.
II.
Osteen’s first argument is that his right to a speedy trial under the
Speedy Trial Act, 18 U.S.C. § 3161, was violated because more than
seventy days elapsed between his first arraignment and each of his tri-
als.
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The Speedy Trial Act provides in relevant part:
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 sev-
enty 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.
18 U.S.C. § 3161(c)(1).
In computing the time within which a defendant’s trial must com-
mence, the statute excludes several categories of delay, including any
period of "delay resulting from any pretrial motion, from the filing of
the motion through the conclusion of the hearing on, or other prompt
disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). In other
words, upon the filing of a pretrial motion, the Speedy Trial Act
"clock" stops, and it does not start again until all such motions are
resolved. This period is automatically excludable; delay in resolving
outstanding pretrial motions need not be reasonable for this period to
be excluded from the Speedy Trial Act calculation. See United States
v. Dorlouis, 107 F.3d 248, 253-54 (4th Cir. 1997).
In the present case, Osteen filed several pretrial motions to dismiss
the indictment against him. As a result of this series of motions, the
Speedy Trial Act clock did not run, with the exception of a few scat-
tered days, from June 15, 1998 until January 5, 1999. Consequently,
even under the broadest possible interpretation, fewer than seventy
days — which counted towards the statutory period — elapsed
between Osteen’s arraignment and the commencement of his trial on
the gun charges on February 3, 1999. See United States v. A-A-A
Electrical Co., 788 F.2d 242, 246 (4th Cir. 1986) (holding that for the
purposes of the Speedy Trial Act, the trial commences when voir dire
begins). Thus, Osteen’s trial on the gun charges did not violate the
Act.
Nor was the Act violated with respect to his trial on the drug
charges. Those charges were dismissed without prejudice on February
8, 1999; Osteen was later re-indicted on identical charges on February
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17 and arraigned on those charges on March 2, 1999. When an indict-
ment is dismissed on the government’s motion, and the defendant is
thereafter re-indicted on identical charges, the seventy-day Speedy
Trial Act period is calculated from the date of the first arraignment;
however, the period during which no indictment is pending is
excluded from the seventy-day calculation. See 18 U.S.C.
§ 3161(h)(6); see also United States v. Rojas-Contreras, 474 U.S.
231, 239 (1985). Due to the exclusion of the days when Osteen’s pre-
trial motions were pending and the exclusion of the days when no
indictment was outstanding, even under the most generous calculation
of the Speedy Trial Act clock, Osteen’s trial on the drug charges com-
menced within seventy days of his original arraignment.* In sum,
Osteen has failed to demonstrate a Speedy Trial Act violation.
III.
Osteen also claims that the dismissal of the drug charges, and his
subsequent re-indictment on identical charges, exposed him to double
jeopardy because the district court dismissed the initial charges after
a jury had already been selected. See U.S. Const. amend. V ("[N]or
shall any person be subject for the same offence to be twice put in
jeopardy of life or limb."). This argument is meritless.
The jury that was selected on February 3, 1999 to try Osteen on the
gun and drug charges was seated, but not yet sworn, when the district
court granted the government’s motion to dismiss the drug charges
against Osteen. Under our precedent, a defendant is not placed in
jeopardy when the jury is empaneled; rather, jeopardy does not attach
until the moment the jury is sworn. See, e.g., United States v. Flem-
ing, 667 F.2d 440, 441 (4th Cir. 1981). Thus, when Osteen was later
indicted and tried on drug charges identical to those contained in the
*In this case, the period between February 8, 1999, when the drug
charges were dismissed, and March 2, 1999, when Osteen was arraigned
on the new charges, was excluded from the Speedy Trial Act clock. The
clock began running again on March 3, 1999 — the day after Osteen’s
arraignment — but it stopped on March 11, 1999, when Osteen filed yet
another pretrial motion to dismiss the indictment. The clock never started
again because Osteen’s motion to dismiss was still pending on April 12,
1999 when a jury was selected for the trial on the drug charges.
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dismissed counts of the first indictment, he was not subjected to dou-
ble jeopardy.
IV.
Finally, Osteen challenges his sentence. His principal contention is
that, under the Supreme Court’s recent decision in Apprendi, the dis-
trict court erred in enhancing his prison sentence, and in imposing a
sentence of eight years of supervised release, based on an amount of
drugs, which was not charged in the indictment or proved beyond a
reasonable doubt to the jury. Osteen also claims that the evidence
adduced at trial and at the sentencing hearing did not support the dis-
trict court’s finding that he was accountable for over 500 grams of
methamphetamine.
In Apprendi, the Supreme Court announced a new rule of constitu-
tional law: "Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt." Apprendi, 530 U.S. at 490. Osteen’s prison term of 210
months was calculated based on the district court’s finding as to the
amount of drugs properly attributable to Osteen. This amount, over
500 grams of methamphetamine, was not charged in the indictment
nor was it submitted to the jury. Nonetheless, the sentence imposed
by the district court does not violate the rule articulated in Apprendi
because it does not exceed the prescribed statutory maximum sen-
tence for the offense of which Osteen was convicted. Osteen had pre-
viously been convicted of a drug offense. Assuming that the
maximum sentence he could have therefore received without regard
to drug amount was thirty years, see 21 U.S.C. § 841(b)(1)(C), his
sentence of 210 months, or seventeen and a half years, is far less than
that statutory maximum, and so does not run afoul of Apprendi.
Nor did the district court violate Apprendi in imposing on Osteen
an eight-year term of supervised release. Section 841(b)(1)(C) pro-
vides that, without regard to drug amount, a defendant who has a prior
felony conviction under that subsection is subject to a term of super-
vised release of at least six years. See 18 U.S.C. § 841(b)(1)(C). Put
another way, six years is a statutory minimum, not a statutory maxi-
mum. See United States v. Pratt, 239 F.3d 640, 647-48 (4th Cir.
2001). Thus, the term of supervised release imposed by the district
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court, eight years, does not exceed the statutory maximum term —
because there is no statutory maximum term of supervised release —
and therefore cannot violate the rule announced in Apprendi.
Finally, the government presented sufficient evidence — namely,
David Osteen’s testimony — to justify the district court’s finding that
Michael Osteen was responsible for more than 500 grams of metham-
phetamine. We will reverse a district court’s determination of the
amount of drugs attributable to a defendant only when this determina-
tion is clearly erroneous. See United States v. Lopez, 219 F.3d 343,
348 (4th Cir. 2000). We do not find such error here.
The district court made a specific finding that David Osteen’s testi-
mony was credible and thus the court was entitled to rely on David’s
testimony regarding the amount of drugs he had seen in his uncle’s
possession. See United States v. Gilliam, 987 F.2d 1009, 1013 (4th
Cir. 1993) (the Government may meet its burden of proving the quan-
tity of drugs for which a defendant should be held accountable at sen-
tencing by presenting evidence that the court deems sufficient to
establish the quantity of drugs attributable to a defendant). At trial,
David made a conservative estimate that, prior to the controlled buys
that were the subject of the indictment, he had seen his uncle in pos-
session of an ounce of methamphetamine on ten to twelve occasions
and in possession of a half of an ounce on another ten to twelve occa-
sions. Taking all of the evidence adduced at trial into account, the dis-
trict court estimated that Osteen had been in possession of an ounce
of methamphetamine on eleven occasions, and in possession of half
an ounce on eleven other occasions. This estimate is well within the
range permitted by David Osteen’s testimony and therefore not
clearly erroneous. See United States v. Randall, 171 F.3d 195, 210-11
(4th Cir. 1999) (holding that a precise calculation of drug quantity is
not required and that a district court’s approximation of the amount
of drugs is not clearly erroneous if supported by competent evidence
in the record). Consequently, the district court’s determination of the
amount of drugs attributable to Osteen must stand.
V.
For the foregoing reasons, the judgment of the district court is
hereby
AFFIRMED.
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