UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 98-4037
MARK DAVIS, a/k/a Mark Coleman,
a/k/a Mark V. Johnson, a/k/a
Wakim, a/k/a Y-Kim,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Solomon Blatt, Jr., Senior District Judge.
(CR-96-325)

Submitted: June 11, 1999

Decided: September 3, 1999

Before WIDENER, NIEMEYER, and KING, Circuit Judges.

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Affirmed in part and remanded with instructions by unpublished per
curiam opinion.

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COUNSEL

Mark Davis, Appellant Pro Se. Cameron Glenn Chandler, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Defendant Mark Davis, a/k/a Mark Coleman, a/k/a Mark Johnson,
a/k/a Wakim, a/k/a Y-Kim, entered a plea of guilty, along with sev-
eral codefendants, to conspiracy to possess with intent to distribute
and conspiracy to distribute cocaine base and heroin in violation of
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Davis also pleaded guilty
to one count of money laundering in violation of 18 U.S.C. § 1956.
Davis's appeal was initially consolidated with the appeals of codefen-
dants in the lead case of United States v. Feurtado, 97-4008. Subse-
quently, Davis moved this court for permission to discharge his court-
appointed attorney and for the appointment of another attorney and
for permission to file a supplemental pro se brief. This court granted
the motion to discharge his attorney but denied the motion for
appointment of a substitute attorney. We granted his motion to file his
supplemental pro se brief. Davis's appeal was deconsolidated and
severed from the appeals of his codefendants and this court granted
the government's motion to submit Davis's appeal on the briefs.1
Davis also filed a motion on May 3, 1999, asking this court for an
order clarifying and allowing him to join the legal issues and argu-
ments raised by Arguments I and IV in United States v. Feurtado, No.
97-4008, in addition to the issues raised in his supplemental pro se
brief. This motion is granted.2

The first argument made by Davis in his pro se brief is that the dis-
trict court abused its discretion when it granted the government's
motion, filed April 13, 1996, to dismiss the indictment without preju-
dice. Somehow he claims that his speedy trial rights were violated.
_________________________________________________________________
1 The other defendants are the subject of a decision of even date. United
States v. Feurtado, No. 97-4008 (L), ___ F.3d ___, (4th Cir. 1999).
2 Any outstanding motions not mentioned specifically in this opinion
are denied.

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We are unable to ascertain any violation of his speedy trial rights by
the dismissal of the initial indictment without prejudice. Another
argument made, apparently, is that under Fed. R. Crim. P. 48(a) when
the government files a dismissal of an indictment the prosecution is
terminated, thus his prosecution should be terminated. The govern-
ment did not file a dismissal of an indictment, rather it asked for a dis-
missal without prejudice. That motion did not refer to the McNair
testimony mentioned in Feurtado, No. 97-4008 (L), ___ F.3d ___, so
any claim in this respect is without merit.

Davis's second claim in his pro se brief, as best we can tell, is that
by entering an order of June 10, 1996 (finding no willful prosecutorial
misconduct) nunc pro tunc to March 27, 1996, the court somehow
improperly changed its earlier findings of fact and thereby erred in
dismissing the indictment without prejudice rather than with preju-
dice. Davis points to the court's oral statement on March 27, 1996
that the court had "grave doubts" that testimony before the grand jury
regarding allegations of murder against one or more of the codefen-
dants did not influence the return of indictments on the drug charges,
but its order of June 10, 1996 stated:

          While the court does not find that the defendants have estab-
          lished that the improper testimony substantially influenced
          the grand jury's decision to indict, the Court has some doubt
          that the grand jury decision to indict was not free from the
          influence of that testimony.

As to Davis's claim that the district court's June 10, 1996, written
order regarding this testimony causes the record to be incorrect as to
the previous findings of March 27, 1996, we note that a court speaks
through its judgments and orders not by opinions or by chance obser-
vations. E.g., Murdaugh Volkswagen, Inc. v. First Nat. Bank of South
Carolina, 741 F.2d 41, 44 (4th Cir. 1984).

With respect to the merits of any claim of Davis under Part I of
Feurtado, No. 97-4008, that the district court erred in dismissing the
indictment without prejudice, rather than with prejudice, such claim
is foreclosed by our decision in United States v. Feurtado, No. 97-
4008 (L), ____ F.3d ____ (4th Cir. 1999).

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The next argument raised in Part IV, United States v. Feurtado,
No. 97-4008, in which Davis joins, is that the district court's addition
of the statutory five-year period of supervised release to the sentence
agreed upon in his plea agreement violates Fed. R. Crim. P. 11(e)(3)
and (4). The government has conceded this issue as to Davis, and for
the reasons stated in Feurtado, we remand this issue to the district
court for reconsideration. Upon remand, the district court may accept
the plea agreement and resentence Davis so that the sentence of
imprisonment plus the statutory five-year period of supervised release
does not exceed the term of imprisonment stated in the plea agree-
ment, or in the alternative, the district court may reject the plea agree-
ment and allow the defendant to withdraw his guilty plea and plead
again.

Davis next claims in his pro se brief that he is entitled to dismissal
of the indictment filed October 17, 1995 because he was not indicted
within 30 days of his arrest on September 14, 1995 as provided in the
Speedy Trial Act, 18 U.S.C. § 3161(b). This claim is without merit.
On motion of the government, the district court granted a continuance
for the filing of the indictment until the next session of Grand Jury
#3 which was to begin on October 17, 1995. The district court found
that the ends of justice would be served by the granting of such con-
tinuance and that the ends of justice would outweigh the best interest
of the public and the defendants in a speedy trial. This finding was
based on the fact that the requested continuance was for only nine
days beyond the expiration of the 30 day period in which the indict-
ment would otherwise be required for codefendant Susan Pena
[arrested on September 8, 1995, six days before Davis]. The court
also found that the government's request was not for any improper
purpose or to cause undue delay, but rather because of certain events
such as some witnesses in the case had already testified before that
same Grand Jury #3 and because there were multiple codefendants,
some of whom had been arrested and were awaiting transfer to the
jurisdiction and some of whom were still fugitives.

The district court stated sufficient reasons supported by the record
to support its finding that the ends of justice would be served which
outweigh the interest of the public and the defendant in a speedy trial.
The three day period of delay which Davis now asserts violates

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§ 3161(b) is properly excludable under § 3161(h)(8)(A) and (B)(iii),
and we affirm the district court on this issue.

Davis next raises a sentencing issue, claiming that the district court
clearly erred in attributing to him 40 kilograms of cocaine as stated
in the presentence report. Davis objected to the amount of cocaine
attributed to him in the presentence report on the grounds of insuffi-
cient evidence. He attacks specifically a portion of the report which
states he was present at the Los Angeles airport on February 1, 1995
when two suitcases containing 20 kilograms of cocaine were given to
Kevin Barrett and Garry Feurtado to transport to South Carolina, fol-
lowing which Barrett and Feurtado were arrested. The burden rests on
the defendant to show the inaccuracy or unreliability of the presen-
tence report. United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990).

In his challenge to the presentence report Davis attacks the credi-
bility of the cooperating codefendants' grand jury testimony and
statements to McNair. At the conclusion of the sentencing hearing,
the district court found that the preponderance of the evidence sup-
ported that 40 kilograms was an amount of cocaine for which Davis,
with his position and role in the organization, should be held account-
able. With respect to Davis's objection to the statement in the presen-
tence report that he was actually at the Los Angeles Airport, the
district court correctly found that it did not matter whether Davis was
or was not actually or physically at the airport when Barrett and
Feurtado left with that 20 kilograms of drugs. The court found, and
we agree, that the preponderance of the evidence supports that Davis
was a member of the conspiracy, that Davis was in California when
that particular cocaine left California headed for South Carolina, and
that Davis knew all about it. The preponderance of evidence also sup-
ports that Davis used his residence as a stash house for the organiza-
tion and on at least one occasion there was at least 10 kilograms of
cocaine stashed at his residence, that one of his roles in the organiza-
tion was to transport cocaine from Los Angeles and that codefendant
Pena transported him in the Los Angeles area on at least two separate
occasions for the purpose of transporting at least 10 kilograms of
cocaine each time, that he made a trip with Barrett on at least two
occasions carrying a minimum of 10 kilograms of cocaine each time.
The district court's finding that 40 kilograms of cocaine are attribut-

                    5
able to Davis based on his role in the conspiracy and the amounts of
drugs foreseeable to him is not clearly erroneous and we affirm the
district court on this issue.

Finally, Davis claims that the district court erred in denying his
motion to dismiss the indictments against him because of "egregious
manipulation of the grand jury." In addition to the drug conspiracy
and money laundering, Davis was indicted for attempting to escape
from federal custody in violation of 18 U.S.C. § 751(a) while incar-
cerated for the drug conspiracy charges. Davis's claim of egregious
conduct appears to be that the government was unable to produce suf-
ficient evidence of the drug conspiracy charges and so it presented the
allegation of attempted escape for the purpose of obtaining an indict-
ment for the conspiracy and drug charges and to bolster its overall
case against him for trial.

We agree with the district court that the charge of, and evidence of,
Davis's attempted escape did not influence the grand jury to indict on
the drug conspiracy and money laundering counts. The district court
found, and the record supports, that there was ample evidence to sup-
port the return of the indictment on those counts. Absent any evidence
to support the claim, it is frivolous, even if permissible, which is
doubtful, to argue that the grand jury would not have returned an
indictment on those counts in the absence of the evidence of his
attempted escape. Stretching the case as far as we can for Davis, he
has failed to establish actual prejudice so that he would be entitled to
dismissal of the indictment under Bank of Nova Scotia v. United
States, 587 U.S. 250 (1988), and we affirm the district court on this
issue.

In summary, we affirm the district court on all issues raised by
Davis with the exception of the claim that the addition of the manda-
tory five-year period of supervised release violates the terms of his
plea agreement. As to that issue, we remand for resentencing so that
the sentence of imprisonment and period of supervised release does
not exceed the sentence stated in the plea agreement, or for rejection
of the plea agreement by the district court at its option, leaving Davis
free to withdraw his plea and plead again.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS

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