USA v. Brice Marchbank

Filing

OPINION filed : The judgment of the district court is AFFIRMED. Decision not for publication. Jeffrey S. Sutton and Raymond M. Kethledge (AUTHORING), Circuit Judges; Sandra S. Beckwith, U.S. District Judge for the Southern District of Ohio, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0791n.06
No. 15-5209
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
BRICE MARCHBANKS,
Defendant-Appellant.

FILED
Dec 04, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

Before: SUTTON and KETHLEDGE, Circuit Judges; BECKWITH, District Judge.*
KETHLEDGE, Circuit Judge. A jury convicted Brice Marchbanks of four counts related
to a conspiracy to distribute drugs in violation of 21 U.S.C. § 841(a)(1). Marchbanks challenges
the delay before his trial, the sufficiency of the evidence at trial, and the application of a twolevel enhancement at sentencing. We affirm.
I.
In 2009, a police investigation into the Rollin’ 60s Crips in Nashville, Tennessee revealed
that the Crips had targeted Brice Marchbanks in a robbery. Marchbanks ran a drug operation out
of his apartment, using two middle-school runners to work the door. When a buyer would
knock, one of Marchbanks’s runners would fetch the drugs, return to the door, and complete the
sale. When the Crips attempted to rob Marchbanks, they posed as customers and then forced
their way into the apartment while Marchbanks weighed the drugs. In the ensuing struggle, the
Crips shot Marchbanks and then fled without money or drugs.
*

The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern District of Ohio, sitting
by designation.

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Before seeking medical care, Marchbanks asked one of his runners to help him remove
incriminating evidence from his apartment. They wiped down the kitchen to remove any drug
residue and hid the drugs and various firearms behind a house across the street. Marchbanks
then went to the hospital with a gunshot wound, which—as Marchbanks expected—triggered a
police inquiry. Marchbanks told the police he had been shot during a real estate showing gone
awry. According to Marchbanks, he had an agreement with the owner of the adjacent unit for a
commission on any renters he referred. When Marchbanks showed two potential renters his own
unit (to demonstrate the layout of an adjacent one) they drew weapons, demanded money, and
then shot Marchbanks when he refused to comply.
Soon thereafter, Marchbanks ordered his cousin and a runner to retaliate against the
person whom Marchbanks believed responsible for the attempted robbery. They found the target
at home. Marchbanks’s cousin shot him in the face, and then two more times after he fell to the
ground, using a P89 Ruger that belonged to Marchbanks. The target’s mother witnessed the
murder and recognized the runner’s face. The runner was soon arrested.
In October 2011, the government charged Marchbanks with maintaining a drug-involved
premises and possessing a firearm in furtherance of drug trafficking in violation of 21 U.S.C.
§ 856(a)(1) and 18 U.S.C. § 924(c). Rather than charging Marchbanks alone, however, the
government rolled his charges into a Superseding Indictment in the prosecution of a larger drug
conspiracy involving the Crips. On November 9, 2011, Marchbanks pleaded not guilty to the
charges. The investigation continued and the number of defendants and related proceedings
mounted.
Five months later, on April 6, 2012, Marchbanks filed a motion to sever his case from
those of his co-defendants and to continue his April 17, 2012 trial date. The district court had

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not ruled upon that motion when, on December 12, 2012, Marchbanks joined a co-defendant’s
motion to dismiss the charges on the basis of a Speedy Trial Act violation. A week later, the
district court granted Marchbanks’s motion to sever, with no objection from the government.
But the district court denied the motion to dismiss in part because of the case’s complexity: All
told, the government brought 43 counts in 11 indictments against 28 defendants. Marchbanks
and his co-defendants filed over 400 motions, including six motions to dismiss. The district
court held more than 15 motion hearings, 12 plea hearings, and 18 status conferences.
In May 2013, the government added two additional charges against Marchbanks in a 10th
Superseding Indictment:

conspiracy to distribute, and possession with intent to distribute,

various controlled substances in violation of 21 U.S.C. § 841(a)(1), and distribution of controlled
substances to a person under 21 in violation of 21 U.S.C. § 859. Marchbanks again moved to
continue his trial date. The district court granted the motion. In September 2013, Marchbanks
requested a psychiatric evaluation, which required another continuance.

In January 2014,

Marchbanks joined the government in moving for another continuance.

The government

requested, and the court granted, a final continuance in May 2014. In each order granting a
motion to continue, the district court concluded that the delays were justified under the Speedy
Trial Act by either the ends of justice or the complexity of the case.
In September 2014, a jury convicted Marchbanks on all four of the charges against him.
Marchbanks moved for a new trial, arguing that insufficient evidence supported the verdict and
that the district court erred in one of its evidentiary rulings. The district court denied the motion
and sentenced Marchbanks to 248 months imprisonment. This appeal followed.

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II.
Marchbanks challenges the district court’s denial of his motions to dismiss and for a new
trial, and its application of a sentencing enhancement for obstruction of justice.
A.
Marchbanks first argues that the district court should have dismissed the charges against
him because his delayed severance from his co-defendants violated his rights under the Speedy
Trial Act and the Sixth Amendment. To prevail under the Speedy Trial Act, Marchbanks must
show that his trial started more than 70 days after his initial appearance, not counting excludable
time. See 18 U.S.C. § 3162(a)(2). Marchbanks contends that the 13-month delay between his
initial appearance and severance of his case violated the Act. See Marchbanks Br. at 13-14. But
five months into the 13-month delay, Marchbanks filed a motion to continue, a motion to sever,
and—after “be[ing] advised of [his] rights under the Speedy Trial Act”—a waiver of “any rights
[he] may have under the Speedy Trial Act . . . with respect to a continuance[.]” R. 1062-1 at 1.
In his brief to our court, Marchbanks concedes the excludability of delays that “occurred as a
result of [his own] motion for a continuance[.]” He also concedes that, “during the same period,
many motions . . . and at least one more superseding indictment” resulted in additional
“excludable periods of delay[.]”

And Marchbanks neither identifies a delay that was not

excludable under the Act, nor explains where the district court erred in holding otherwise. His
argument is meritless. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
Marchbanks’s next contention—that the real speedy trial violation was the government’s
initial decision to indict him with his codefendants—is not cognizable under the Speedy Trial
Act. Marchbanks cites no authority for his claim of wrongful joinder, recites no standard, and

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makes no meaningful “effort at developed argumentation[.]” Id. at 995. Hence this contention is
meritless.
Marchbanks next contends that the delay violated his Sixth Amendment right to a speedy
trial. We consider such claims in light of four factors: “Length of delay, the reason for the
delay, the defendant’s assertion of his right, and prejudice to the defendant.” United States v.
Howard, 218 F.3d 556, 563 (6th Cir. 2000). Delays of more than a year are “uncommonly
long.” See United States v. Bass, 460 F.3d 830, 837 (6th Cir. 2006). The first factor thus favors
Marchbanks.
The second factor—the reason for the delay—favors the government. Of the three years
between Marchbanks’s arraignment and trial, Marchbanks challenges only the 13 months
between his initial appearance in November 2011 and his severance from the other defendants in
December 2012. But eight months of this delay resulted from Marchbanks’s own motion to
continue his trial date. Such delays do not count toward Sixth Amendment violations. See
Howard, 218 F.3d at 564.
Nor is there any indication that the government wrongfully delayed his trial. See United
States v. Schreane, 331 F.3d 548, 554 (6th Cir. 2003). Rather, as we have already concluded in
another appeal in this case, “[t]he sheer size and complexity of this sprawling gang case—
featuring [eleven] indictments, numerous defendants, voluminous discovery, over 1,800 pretrial
docket entries—accounts for most of its length, which favors a finding of no constitutional
violation.” United States v. Baugh, 605 F. App’x 488, 492 (6th Cir. 2015) (internal quotation
marks omitted).
Third, the defendant’s assertion of his rights is often “closely related” to the reason for
the delay. Barker v. Wingo, 407 U.S. 514, 531 (1972). That is particularly true here. Although

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Marchbanks moved to sever his case from those of his co-defendants and moved for dismissal on
speedy-trial grounds, his repeated continuances undermined his efforts to vindicate his rights by
causing more than half the delay he now challenges.

Even after the challenged period,

Marchbanks filed another motion to continue, joined the government’s motion to continue, and
requested a competency examination that triggered a continuance from the district court sua
sponte. These are not the actions of a defendant diligently asserting his right to a speedy trial.
See id. at 532.
Finally, we review speedy-trial claims for three types of prejudice to a defendant:
oppressive pretrial confinement, excessive anxiety and concern, and the possibility of an
impaired defense—the last being the most important. Bass, 460 F.3d at 837. Marchbanks points
only to his pretrial confinement in a county jail as the source of his prejudice, “even excluding
the periods of delay that resulted from his” own actions. But five months in the county jail—
while awaiting trial in a complex case—is by no means oppressive under the Sixth Amendment.
And the presumption of prejudice for delays longer than a year only applies in cases where the
delay was wrongful, rather than the natural result of the complexity present here. Compare
Howard, 218 F.3d at 564, with Redd v. Sowders, 809 F.2d 1266, 1270 (6th Cir. 1987). In light of
the various delays triggered by Marchbanks, the complexity of this case, and the relatively
modest remaining delay, the district court did not violate Marchbanks’s right to a speedy trial
under the Sixth Amendment.
B.
Next, Marchbanks argues that insufficient evidence supported his convictions for
conspiring to possess controlled substances with the intent to distribute and for possessing
firearms in furtherance of drug trafficking. For both, we ask merely if, “viewing the evidence in

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the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Wright, 774 F.3d
1085, 1088 (6th Cir. 2014).
A drug conspiracy has three elements:

“(1) an agreement to violate drug laws,

(2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” United
States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996). Marchbanks contends that the evidence failed
to establish “an agreement,” but showed instead a mere “clubhouse” in which Marchbanks and
his friends “gathered to smoke marijuana and to carry weapons in keeping with their chosen
lifestyle.” But the government does not need to prove a formal agreement between the members
of a conspiracy—only a tacit understanding. United States v. Deitz, 577 F.3d 672, 677 (6th Cir.
2009). The understanding “may be inferred from circumstantial evidence [that] may reasonably
be interpreted as participation in a common plan.” United States v. Hughes, 505 F.3d 578, 593
(6th Cir. 2007).
Here, at least four witnesses testified that Marchbanks left drugs in his house for his
friends and family to sell. The also testified that they sold the drugs and gave the proceeds back
to Marchbanks, who then replenished his supply. This evidence was sufficient for the jury to
find that Marchbanks reached at least a tacit understanding with his co-conspirators to sell drugs.
Marchbanks contends that insufficient evidence supported his conviction for possessing a
firearm in furtherance of drug trafficking because Marchbanks “neither dealt with nor liked
guns” and the evidence against him amounted to nothing more than the presence of other
people’s guns in his home. But when a “conspiracy is ongoing, a conspirator is liable for the acts
of his co-conspirators during the relevant statute of limitations period unless he is found to have
withdrawn from [the] conspiracy[.]” Deitz, 577 F.3d at 693.

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Here, multiple witnesses testified that—while selling Marchbanks’s drugs in
Marchbanks’s house, for Marchbanks’s profit—Marchbanks’s co-conspirators carried guns for
protection. And one of the runners testified that Marchbanks kept a pump-action shotgun in his
bedroom and owned the Ruger that Marchbanks’s cousin used to avenge the attempted robbery.
Sufficient evidence therefore supported this conviction as well.
C.
Marchbanks also argues that the district court erred by limiting cross-examination of the
runner’s grandmother, Nancie Hurst, on the subject of her grandson’s criminal history. We
review evidentiary rulings for an abuse of discretion. See John B. v. Emkes, 710 F.3d 394, 406
(6th Cir. 2013).
Hurst testified that she asked Marchbanks not to allow her grandson to hang around with
Marchbanks, but that Marchbanks refused. Marchbanks’s counsel sought to demonstrate that
Marchbanks was not the original cause of the grandson’s criminal conduct by cross-examining
Hurst on her grandson’s criminal history. When the government objected, the district court
limited the questioning to crimes that resulted in convictions and did not involve Marchbanks.
Marchbanks now contends that the full scope of the grandson’s criminal activity was a proper
subject of cross-examination. But the excluded criminal history had little—if any—probative
value. At most, it marginally related to a tangential inference from Hurst’s testimony: that
Marchbanks had caused the runner’s start in criminal activity, rather than only facilitating his
continuing criminal activity. The district court did not abuse its discretion.
D.
Finally, Marchbanks argues that the district court erred by enhancing Marchbanks’s
sentence for obstructing justice.

See U.S. Sentencing Guidelines Manual § 3C1.1.

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challenges to a sentencing enhancement, we review for clear error the district court’s factual
determinations and review mixed questions of law and fact de novo. See United States v. Cole,
359 F.3d 420, 430 (6th Cir. 2004).
Here, the government sought the enhancement because Marchbanks hid the drugs and
guns before going to the hospital and later told the police his tale of real estate misadventure.
Marchbanks responds that the enhancement serves only to punish him for exercising his Fifth
Amendment right against self-incrimination. But the (dubious) premise of that argument—that
the Constitution protected his efforts to hide the guns and drugs—is not developed. We therefore
do not consider that argument. Marchbanks otherwise asserts that the enhancement was based
on conduct unrelated to the investigation of the Crips’ robbery. But Marchbanks’s drug activity
was related to the motive for the robbery, and thus his efforts to hide the drugs and misdirect the
police obstructed the investigations into the robbery and his drug activity. The district court thus
properly applied the two-level enhancement to Marchbanks’s sentence.
*

*

The district court’s judgment is affirmed.

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