Submitted December 18, 2013.
Appeal from United States District Court for the District of Nebraska - Lincoln.
For United States of America, Plaintiff - Appellee (13-2059, 13-2060): Bruce Gillan, U.S. Attorney's Office, Lincoln, NE.
Christopher Mallett, Defendant - Appellant (13-2059), Pro se, Oxford, WI.
For Christopher Mallett, Defendant - Appellant (13-2059): Jessica L. Milburn, Lincoln, NE.
Guy E. Allen, also known as: Pickle, Defendant - Appellant (13-2060), Pro se, Terre Haute, IN.
For Guy E. Allen, also known as: Pickle, Defendant - Appellant (13-2060): Gregory C. Damman, Seward, NE.
Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
RILEY, Chief Judge.
A jury convicted Guy E. Allen and Christopher Mallett (who were sometimes referred to as " Pickle" and " Beans," respectively) each of conspiring to distribute 280 grams or more of cocaine base (crack cocaine), in violation of 21 U.S.C. § § 841(a)(1),
(b)(1)(A), and 846. Allen appeals his conviction, arguing the prosecution violated his constitutional and statutory rights to a speedy trial and the evidence was insufficient to support his conviction. Mallett appeals his conviction, raising severance issues and arguing the district court erred in denying Mallett's motion for judgment of acquittal and overruling Mallett's objection under
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.
On August 24, 2011, a grand jury indicted Allen for one count of conspiracy to distribute 280 grams or more of crack cocaine. Superseding indictments added Terrelle L. Tyler and Mallett as co-defendants to the existing conspiracy charge.
A few weeks after the defendants were arraigned on the second superseding indictment, Tyler changed his plea to guilty. During Tyler's plea process, Mallett moved to sever his trial from Allen's, which the magistrate judge denied. Following the denial, Allen moved to dismiss the second superseding indictment, citing violations of Allen's rights under the Speedy Trial Act of 1974 (STA), 18 U.S.C. § 3161 et seq., and right to speedy trial under the Sixth Amendment. Adopting the magistrate judge's findings and recommendation, the district court denied the motion on January 17, 2013.
Mallett's and Allen's jury trial began on January 22, 2013. During jury selection, Mallett raised a Batson objection to the government's use of a peremptory challenge to strike a young African-American woman from the venire. The district court accepted the government's explanation as race neutral and overruled Mallett's objection.
At trial, ten witnesses, including police officers who had been operating undercover, testified about instances where Allen or Mallett sold crack cocaine, often by either delivering the drug to a certain address or by selling out of a customer's house or apartment. Several witnesses testified Allen, Mallett, and Tyler often sold crack cocaine together, either in pairs or as a group, and often cooperated in making sales. At the close of the government's evidence and again after the close of the defendants' evidence, both Allen and Mallett moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(a). The district court denied both motions. On February 1, 2013, the jury found both defendants guilty of conspiracy to distribute 280 grams or more of crack cocaine. Following sentencing, both Allen and Mallett timely appealed.
A. Allen's Speedy Trial Rights