United States v. Pair

84 F.4th 577

UNITED STATES of America, Plaintiff - Appellee v. Quotez Tyvick PAIR, Defendant - Appellant.

No. 21-4269

United States Court of Appeals, Fourth Circuit

Argued: September 19, 2023

Decided: October 24, 2023

Appeal from the United States District Court for the Eastern District of Virginia at Richmond. Robert E. Payne, Senior District Judge. (3:20-cr-00003-REP-1)

ARGUED: Miriam Ruth Airington-Fisher, AIRINGTON LAW PLLC, Richmond, Virginia, for Appellant. Jacqueline Romy Bechara, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Raj Parekh, Acting United States Attorney, Alexandria, Virginia, Olivia L. Norman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before DIAZ, Chief Judge, and WILKINSON and BENJAMIN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Diaz and Judge Benjamin joined.

WILKINSON, Circuit Judge:

Following a series of COVID-19-related continuances and other setbacks, Quotez Tyvick Pair was convicted by a jury of two counts of fentanyl distribution. Pair argues that these delays violated his statutory and constitutional rights to a speedy trial. 18 U.S.C. § 3161; U.S. Const. amend. VI. Pair also argues the district court erred in denying his motion for acquittal. For the reasons that follow, we affirm the judgment of the district court.

I.

In late 2019, Pair sold illicit drugs to a confidential informant in two controlled buys arranged by law enforcement. The informant believed he was buying heroin, but lab tests revealed that what he actually purchased was fentanyl. Pair was soon after indicted by a grand jury of two counts of distributing fentanyl in violation of 21 U.S.C. § 841(a)(1). Pair made his initial appearance after the indictment on January 31, 2020, and trial was set for April 6.

The looming pandemic, of course, had other plans. The very day Pair was indicted, health officials confirmed the first case of COVID-19 in the United States. Roni Caryn Rabin, First Patient with the Mysterious Illness Is Identified in the U.S., N.Y. Times, Jan. 22, 2020, at A10. Nine days later, the World Health Organization declared a global health emergency. Sui-Lee Wee et. al, W.H.O. Declares Emergency as Cases Spread Beyond Epicenter, N.Y. Times, Jan. 31, 2020, at A6. In those early months of 2020, a new reality set in. Nations around the world announced stringent limitations on in-person interaction and nonessential travel; businesses ground to a halt; and death tolls mounted.

A. In-person proceedings continued from March 16 through September 13

In response to the escalating public health crisis, Chief Judge Mark S. Davis of the United States District Court for the Eastern District of Virginia issued a series of General Orders over the first half of 2020, the cumulative effect of which suspended criminal jury trials in the district from March 16 through September 13. See General Order 2020-02 (continuing all proceedings through April 17); General Order 2020-06 (supplementing findings behind Order 2020-02); General Order 2020-07 (continuing all proceedings through May 1); General Order 2020-12 (continuing all proceedings through June 10); General Order 2020-16 (continuing criminal jury trials through July 6); and General Order 2020-19 (continuing criminal jury trials through September 13).

Each of the General Orders contained detailed findings about the effect of the COVID-19 pandemic on courts' ability to conduct fair and safe jury trials. For example, they described the inability of courts to "adequately protect the safety of jurors in light of the fact that they need to sit together, listen to evidence together, and deliberate together" in confined spaces; the "grave concerns as to whether jurors could provide their full and complete attention during a multi-day or multi-week federal trial in light of the health risks"; and the "inevitabl[e] issues with witness availability" in light of "stay home" orders in the vicinity. General Order 2020-06 at 3-4. Based on those findings, each General Order concluded that the continuance period would be excluded from speedy trial calculations pursuant to 18 U.S.C. § 3161(h)(7)(A). See, e.g., General Order 2020-02 at 4.

Following the first three General Orders—2020-02, 2020-06, and 2020-07—the government moved to continue Pair's trial. Pair did not object. In granting the motion, the district court incorporated the findings of the then-issued General Orders and found that "the ends of justice outweigh[ed] the best interest of the public and the defendants in a . . . speedy trial, and that the failure to gran[t] such a continuance would prevent the completion of full and fair jury proceedings and result in a miscarriage of justice," citing 18 U.S.C. § 3161(h)(7)(A). J.A. 34. The court extended the period for commencing trial to May 27.

B. Pair's trial continued to September 30

Three General Orders further suspending trials issued in the summer of 2020: General Orders 2020-12, 2020-16, and 2020-19. Accordingly, on July 2, the district court issued a case-specific continuance delaying Pair's trial to September 30. The district court incorporated the findings of General Order 2020-19 and found that the ends of justice supported the continuance under 18 U.S.C. § 3161(h)(7)(A).

C. Pair's trial continued to December 8

In September the trial stalled again due to a different kind of emergency. Pair's third attorney moved to continue trial because she had been diagnosed with a medical condition requiring urgent surgery. The court consulted with Pair and found that he would prefer to have new counsel appointed rather than wait for his third attorney to recover from surgery. The district court again continued trial to December 8, finding it was "in the interest of justice" to allow the newly appointed attorney time to prepare. J.A. 130.

D. Pair moves to dismiss the indictment and trial is continued to March 8

The final months of 2020 and early months of 2021 saw more complications. On October 21, Pair's attorney filed a motion to dismiss the indictment for a violation of his rights to a speedy trial. The district court continued Pair's trial pending the resolution of the motion, but there were more pandemic-related delays in store.

Chief Judge Davis was soon to issue another set of General Orders, the cumulative effect of which suspended criminal jury trials through February 28, 2021. General Order 2020-22 (suspending criminal trials through January 18); General Order 2021-01 (suspending criminal trials through February 28). These orders cited worsening local conditions due to the pandemic and again determined that the relevant periods would be excluded from speedy trial calculations under § 3161(h)(7)(A). See, e.g., General Order 2021-01 at 3-6.

Pursuant to these Orders, on January 12 the district court continued Pair's trial to March 8, the "earliest date possible due to other criminal trials scheduled in the courthouse and defense counsel's availability." United States v. Pair, 515 F. Supp. 3d 400, 404 n.5 (E.D. Va. 2021). The court incorporated the speedy trial findings of the most recent General Order and found that the record in Pair's case supported those findings, as counsel for the government was forced to quarantine after a potential exposure. The court determined that the continuance served the ends of justice and outweighed the best interest of Pair and the public in a speedy trial under § 3161(h)(7)(A).

E. The district court denies Pair's motion to dismiss

On January 27, the district court denied Pair's motion to dismiss the indictment based on a violation of the Speedy Trial Act. The district court excluded the following periods of delay from the speedy trial calculation: February 5; March 16 through September 22; and September 24 through January 27, 2021. Pair, 515 F. Supp. 3d 400 at 405. February 5, the date of Pair's arraignment, was excluded under § 3161(h)(1). Id. March 16 through September 22—the period of delay resulting from the first set of General Orders and the July 2 continuance order—was excludable under § 3161(h)(7)(A). Id. at 405-12. Likewise, September 24 through January 27—the period of delay resulting from the September 24 continuance order and Pair's motion to dismiss—was excludable under § 3161(h)(7)(A) and § 3161(h)(1)(D). Id. at 412-15. In light of the excludable time, the district court found that fewer than seventy days had accrued towards Pair's speedy trial clock. Id. at 415. Accordingly, the district court found that Pair's rights under the Speedy Trial Act were not violated. Id.

On February 26, the district court denied Pair's motion to dismiss the indictment based on his constitutional right to a speedy trial. United States v. Pair, 522 F. Supp. 3d 185 (E.D. Va. 2021). The district court weighed the factors put forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and found that they favored a finding that Pair's constitutional right to a speedy trial had not been violated. Pair, 522 F. Supp. 3d at 191-200.

F. Pair is convicted and moves for acquittal

Roughly a year after the COVID-19 outbreak, the district court was able to manage more successfully the complexities of holding trial in a pandemic that had already claimed hundreds of thousands of lives. On March 8, 401 days after his initial appearance, Pair's trial began. Ultimately, the jury found Pair guilty on both counts of distributing fentanyl.

Pair's counsel filed a motion for a judgment of acquittal based on the alleged insufficiency of the evidence for Pair's convictions. Pair followed with a pro se motion on similar grounds. The district court found the evidence was sufficient to support the convictions and denied both motions.

Pair timely appealed the orders denying his motion to dismiss the indictment and his motion for judgment of acquittal.

II.

Pair first challenges the...