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United States v. Patterson

United States Court of Appeals, Seventh Circuit

September 18, 2017

ANDRE PATTERSON, Defendant-Appellant.

          Argued April 20, 2017

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. l:12-cr-00003 - Sarah Evans Barker, Judge.

          Before Manion and ROVNER, Circuit Judges, and Coleman, District Judge.[*]

          Coleman, District Judge.

         Andre Patterson was indicted in 2012 on a number of charges arising from his role in a conspiracy to rob a fictitious drug "stash house." Following lengthy delays resulting from a determination that Patterson was not competent to proceed and subsequent efforts to restore Patterson to competency, a jury trial was held in September 2015. Out of the five counts involving him, Patterson was found guilty of conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I) and being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) (Count XV). Patterson was subsequently sentenced to the guideline minimum of 168 months incarceration. Patterson now appeals, asserting that the district court erred in denying his motions to dismiss based on the Speedy Trial Act and his Sixth Amendment speedy trial rights, that the prosecutor improperly bolstered witnesses' credibility during opening and closing arguments, and that the district court erred in conducting his sentencing calculation. We affirm Patterson's conviction, but vacate his sentencing on Count I and remand this case for resentencing.

         I. BACKGROUND

         In 2011, law enforcement authorities learned that a "robbery crew" was operating in Bloomington, Indiana. Local law enforcement, in coordination with the Bureau of Alcohol, Tobacco, and Firearms, arranged a sting operation to target that crew through the staged robbery of a nonexistent drug stash house.

         A confidential informant arranged a meeting between an undercover agent and Dennis English, who had been identified as part of the robbery crew under investigation. The undercover agent posed as an individual who transported narcotics for drug dealers and who was seeking individuals to rob the stash house where he picked up drug shipments. English agreed to perform the robbery, but explained that he would need time to gather equipment and other participants.

         On November 15, 2011, the undercover agent met with the informant, English, and Andre Patterson in a hotel room at the Bloomington, Indiana Quality Inn. The agent explained to English and Patterson that once a month, he would pick up a shipment of drugs and drive it to Chicago. He told Patterson that the first time he had done this he had picked up "six bricks" of cocaine.[1] Patterson asked the undercover agent what he had picked up last time, and he answered that he had picked up ten bricks of cocaine.

         Later in the conversation, the agent went on to state that "last month I picked up ten and ... there's at least twenty on that table. Like when I get my ten, there's at least that much there too. I aint never been-I don't know if they got more shit in the back or not or what ... ."

         Patterson responded that "That cash is in the back .... I want that cash. I don't even want the dope. I want that fucking cash." The agent replied that he did not think there was any cash there, but Patterson insisted that there was cash hidden in the house that he had never visited. Patterson continued to repeatedly assert his belief that they would recover large amounts of cash, notwithstanding the agent's attempts to discourage that belief. At one point, Patterson noted that he wasn't "really big on drugs anyway" but was "all about that cash."

         English hypothesized that there might be cash in the house that was delivered by a separate courier. When the informant said that this sounded like wishful thinking, English asked the agent and the informant to hypothesize how much money the drug dealers would have to have in order to have "twenty keys/' a rented house, and four people being paid to do their "dirty work" at the house. English brought up the twenty kilogram figure again while talking about the individual in the back room, predicting that "[h]e's shooting through the wall. It's twenty bricks. It's his ass if he shows up empty handed, bro. He's got something stupid, bro. I wouldn't even have one key and only have a 9."[2]

         English subsequently met with the informant, the undercover agent, and other coconspirators on several occasions in November and early December. On the date of the robbery, English informed the agent that Patterson would be carrying English's .22 pistol for the robbery and that English would be carrying Patterson's 9mm pistol. The robbery participants met at a parking lot and traveled to a storage facility in Bloomington, where police stopped the car Patterson was in and took him into custody. In the car, police found a loaded 9mm handgun with Patterson's fingerprints on it.

         A criminal complaint was filed against Patterson on December 16, 2011. An indictment was subsequently filed on January 11, 2012. The trial date for the case was originally set for February 27, 2012, but was subsequently continued to April 30, 2012 on Patterson's motion. On February 24, 2012, Patterson filed a motion for a psychiatric examination to determine his competency to stand trial and at the time of the offence, which the Court granted on March 19. Based on other motions filed by Patterson's codefendants, the trial date was rescheduled to July 23, 2012. On April 30, 2012, the Court received Patterson's psychiatric evaluation, which diagnosed Patterson with a delusional disorder and determined that he was not competent to proceed to trial. On May 4, 2012, the parties filed a joint motion for Patterson to undergo a mental evaluation at the Bureau of Prisons, which was granted on May 25th.

         On June 19, Patterson was transferred to the Chicago Metropolitan Correctional Center (MCC) for a second psychiatric evaluation. That evaluation, which was received by the Court on September 5th, confirmed the conclusions of the earlier report. Accordingly, on September 14, 2012 the Court held that Patterson was incompetent to stand trial and remanded him to federal custody for hospitalization and treatment. Patterson was initially transferred to a state facility in Henderson, Kentucky, from where he was to be transferred to FMC Butner to undergo psychiatric treatment. Patterson, however, was not transferred from the state facility to FMC Butner until March 21, 2013. Once Patterson arrived at FMC Butner, he was subject to an initial evaluation period that lasted until July 18, 2013. On August 9, 2013, Patterson's forensic evaluation was received by the Court. The evaluation diagnosed Patterson with a delusional disorder and an opioid use disorder and recommended treatment with psychotropic medications. Because Patterson refused to voluntarily accept treatment, the evaluation also requested that the court grant permission to involuntarily medicate Patterson.

         The court accordingly held a Sell hearing in October 2013. At that hearing, Patterson orally asserted that his due pro- cess rights had been violated by, among other things, the delays in bringing his case to trial. Following the hearing, the district court ordered that Patterson be involuntarily medicated. Patterson appealed that ruling, and the court's order was stayed pending the resolution of the appeal.

         During the pendency of that appeal, Patterson filed a November 14, 2013, motion to dismiss under the Sixth Amendment and the Speedy Trial Act based on the duration of Patterson's competency evaluation, the delays in transporting Patterson to FMC Burner, and FMC Burner's delay between authoring its report on July 19, 2013 and subsequently signing it on August 9, 2013. The Court, however, found that none of the periods in question were chargeable under the Speedy Trial Act and that Patterson had not established a violation of his Sixth Amendment right to a speedy trial.

         During the pendency of Patterson's appeal his mental health improved, and his appeal was therefore remanded so that he could receive an additional evaluation from FMC Burner. That evaluation was drafted on October 9, 2014, signed November 6, 2014, and received by the trial court on November 26, 2014. The report concluded that Patterson was competent to stand trial. Patterson subsequently filed multiple motions to continue, which resulted in the trial date being extended from January 20, 2015 until September 1, 2015. Prior to trial, Patterson filed a supplemental motion to dismiss premised on the delay between the drafting of his 2014 forensic evaluation report and his own motion for a continuance after the Court had set the case for trial. The trial court, however, held that many of these delays were not chargeable under the Speedy Trial Act and that Patterson therefore was still well within the Act's 70-day threshold. The trial court also held that the delays that Patterson identified did not alter that court's prior Sixth Amendment analysis.

         Patterson's trial began on September 1, 2015. During its opening statement, the prosecution repeatedly characterized the investigation that resulted in Patterson's arrest as "good" or "excellent" police work. The prosecution also opined on it being "really difficult" to be a police officer, although that comment was part of a larger argument focusing on the preventative nature of the investigation in this case.

         The prosecution returned to this line of argument again in its closing rebuttal, repeatedly characterizing evidence as having been recovered through the "good work of police" and describing the agents who testified at trial as "good law enforcement agents."

         On September 2, 2015 the jury returned its verdict, finding Patterson guilty of conspiracy to possess with intent to distribute five or more kilograms of cocaine (Count I) and ...

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