UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Greenbelt, 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, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Derrick Curry was convicted of possession, distribution, and conspiracy 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 officer and the "willful blindness" instruction given to the jury. Additionally, Curry argues that his conviction should be vacated because his

trial was not timely under the Speedy Trial Act. Lastly, Curry contends 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" theory. 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 Washington, 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 videotaped 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 coconspirators 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 intercepts between Curry and other members of the conspiracy which corroborated 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 sentenced 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 defendant 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 pretrial 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 pursuant 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 discussed 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." However, the provision which excludes the time through the hearing on

the Smith motion, 18 U.S.C. § 3161(h)(1)(F), contains no reasonableness 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 defendants 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 hearing 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 "judicial 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 determination without the trial of the general issue." United States v. Riley,

991 F.2d 120, 123 (4th Cir. 1993) (citation omitted). The government'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 developments in the trials of the other defendants understandably led the government to want to resolve the potential problem of the defense

mentioning the April 10th acquittals in Curry's trial. The government'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 testimony 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 interpretation. 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 interpretations. Curry, however, had a full opportunity to cross-examine

McColl and to provide his own explanations of the damaging conversations 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 prejudice. 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 powerless to grant Curry a sentencing departure under the law. At his sentencing 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 rehabilitation, 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 departure 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 consideration. Regretfully I have to conclude that there simply are

no factors either that would warrant legally speaking, or factually 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 disagree 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 district 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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