United States v. Maryea ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-2239
UNITED STATES OF AMERICA,
Appellee,
v.
LYNETTE MARYEA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin,* Circuit Judges.
W. Daniel Deane, with whom Nixon Peabody LLP, was on brief for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.
January 15, 2013
*
Judge Boudin heard oral argument in this matter and participated
in the semble, but he did not participate in the issuance of the
panel's opinion. The remaining two panelists have issued the
opinion pursuant to 28 U.S.C. § 46(d).
TORRUELLA, Circuit Judge. Defendant-Appellant Lynette
Maryea ("Maryea" or "Defendant") was charged with one count of
conspiracy to possess with intent to distribute and to unlawfully
distribute Oxycodone, Oxycontin, Suboxone, Lorazepam and Ativan in
violation of 21 U.S.C. §§ 841(a)(1) and 846. On August 18, 2010,
a jury found Maryea guilty on that count. She now appeals her
conviction on various grounds. Maryea first challenges the
district court's denial of her Speedy Trial Act, 18 U.S.C. § 3161,
claims in her motion to dismiss on the basis that the exclusion of
time for her co-defendant's continuance was unreasonable as to her.
Maryea also asserts that the district court's failure to order a
mental competency evaluation after she sustained an injury during
trial was an abuse of discretion. Finally, she argues that the
government's evidence at trial established a prejudicial variance
from the charges listed in the superseding indictment against her.
After careful consideration, we affirm in all respects.
I. Background
A. Factual Background
Maryea was originally charged with fourteen co-defendants
for their collective involvement in a scheme to unlawfully procure,
smuggle into and distribute narcotic controlled substances within
the Rockingham County House of Corrections ("RCHOC") in Brentwood,
New Hampshire. Since Maryea's appeal follows a conviction, the
facts associated with that scheme are recounted "in the light most
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favorable to the verdict." United States v. Poulin, 631 F.3d 17,
18 (1st Cir. 2011).
In March 2009, Richard Woods ("Woods") -- Maryea's co-
defendant in the original indictment and the only remaining co-
defendant with Maryea in the superseding indictment -- began his
incarceration at RCHOC. Woods and his girlfriend, Noreen Durham
("Durham"), both suffered from opiate addictions, and Durham was
prescribed Suboxone, an opiate blocker that assists with withdrawal
symptoms. Following his incarceration, Woods regularly asked
Durham to procure Suboxone for him. Durham testified to having
made three deliveries of Suboxone to RCHOC for Woods through a
delivery scheme involving placing Suboxone and tobacco into a
baggie, putting the baggie inside a Dunkin' Donuts coffee cup, and
dropping the coffee cup in a pre-designated trash can in front of
a nursing home approximately 100 yards from the jail. The nursing
home contained a laundry room where designated inmates ("trustees")
were employed. In July 2009, Durham informed Woods in recorded
phone conversations that she would not make any further deliveries
of Suboxone outside the nursing home for fear of getting caught and
violating her probation for a conviction unrelated to this scheme.
Troy Muder ("Muder") -- another co-defendant in the
original indictment and Maryea's boyfriend -- had been committed at
RCHOC to serve a six-month sentence, and became Woods' cellblock
mate on July 8, 2009. Shortly after his incarceration at RCHOC,
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Maryea made an unsuccessful attempt to smuggle painkillers into
RCHOC by dropping pills off in a dump truck parked on the premises
of the jail near the nursing home. However, in early July 2009,
Maryea reunited with a former acquaintance, Justin Knowles
("Knowles"), who knew Muder and had recently been released from
RCHOC. Knowles advised Maryea of a "better way" to smuggle drugs
into the jail, namely, by packaging drugs -- tobacco, Oxycodone,
Oxycontin, Xanax, and other pills -- into "slugs," or containers
made from the tip of a latex glove, and dropping off the slugs with
the "trustees" working in the laundry department in the nursing
home.
Maryea largely procured the drugs included in the slugs
by filling fraudulent prescriptions at various pharmacies after
stealing blank prescription pads with Knowles and Kerry Noonan
("Noonan"), another co-conspirator. Maryea also created a
prescription template on her computer to generate false
prescriptions for obtaining the narcotics. Once the drugs were
procured, Maryea, Knowles and others would package them into slugs
and drive them to the RCHOC facility; Knowles would deliver them to
co-conspirator trustees in the laundry department at the nursing
home. Between July and September 2009, six such deliveries were
accomplished into RCHOC. Muder would receive the slugs once they
were delivered to the trustees and smuggled inside the jail, and he
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would use the pills and tobacco for his own consumption or as
currency for bartering within the jail.
On August 14, 2009, after Durham informed Woods that she
would no longer be making Suboxone deliveries, Woods instructed her
in a recorded phone conversation to call Maryea, tell her that he,
Woods, "owe[s] her boy" Muder, and deliver the Suboxone to Maryea.
Maryea would then, in turn, accomplish the Suboxone delivery to
RCHOC. Durham delivered Suboxone pills to Maryea three times in
August 2009, and on one occasion, when delivering the pills to
Maryea's home, she met Knowles.
On September 20, 2009, Noonan and Knowles were arrested
after Noonan drove Knowles to RCHOC and Knowles entered the laundry
room of the nursing home. Upon their arrest, a slug was seized
from Knowles containing fifteen 15-milligram Oxycodone pills, three
30-milligram Oxycodone pills, twelve Suboxone pills, and sixteen
Xanax pills. A pill bottle was also seized from Noonan's purse
which contained five 30-milligram Oxycodone pills.
B. Indictments and Pre-Trial Motion Practice
On December 16, 2009, a federal grand jury returned an
indictment against Maryea and fourteen other individuals for
conspiring to possess with intent to distribute and to unlawfully
distribute Oxycodone, Oxycontin, Suboxone, Lorazepam, and Ativan
from July 2009 to September 20, 2009, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 ("Original Indictment"). Following her
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indictment and detention, Maryea filed motions for release and for
release on conditions, indicating that she suffered from bipolar
disorder and that she had a "significant medical history which
requires medical treatment for pain." During hearings on these
motions, Maryea repeatedly complained about back and neck pain that
she claimed was not being addressed by jail officials, and it was
also adduced that Maryea had spent time in a state psychiatric
hospital for her bipolar disorder.
On July 16, 2010, Woods filed a motion to continue
("Woods' First MTC"), and Maryea objected, providing speedy trial
calculations. The district court granted Woods' motion after
Maryea's counsel "expressly informed the court that Maryea does not
request or desire severance of her case." In August 2010, a grand
jury returned a superseding indictment ("Superseding Indictment")
charging only defendants Maryea and Woods with the same conspiracy
as in the Original Indictment, but stating that the conspiracy
began in April 2009 instead of July 2009.
During Maryea's arraignment on the Superseding
Indictment, the government moved the district court to order a
mental health evaluation at a federal medical facility to assess
her competency to stand trial. Maryea objected to the government's
motion as she had already procured her own mental health
evaluation, and the examining physician had concluded that she was
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competent to stand trial. The district court denied the
government's motion for the reasons stated in Maryea's objection.
On September 1, 2010, Woods filed his second motion to
continue ("Woods' Second MTC"), requesting a delay in his trial
date due to: (1) a companion state matter pending in the Rockingham
County Superior Court with a trial scheduled for October 6, 2010,
the outcome of which could affect Woods' plea negotiations in the
federal criminal matter; and (2) Woods' continuing plea
negotiations with the government. The district court granted the
continuance on the day it was filed without obtaining Maryea's
objection or consent, concluding that "the ends of justice served
by granting a continuance outweigh the best interest of the public
and the defendant in a speedy trial, 18 U.S.C. § 3161(h)(7)(B)(iv),
for the reasons set forth in the motion." Trial was rescheduled
for January 4, 2011.
Maryea filed a series of motions in late August and early
September 2010, including, inter alia, two motions to dismiss the
Superseding Indictment for violations of the Speedy Trial Act, a
motion to remove counsel and appoint new counsel, and a motion for
bail alleging the Bureau of Prisons' failure to properly provide
medical care.1 In her September 20, 2010 Reply Brief to her motion
1
Although represented by counsel, Maryea filed these motions pro
se. Apparently resolving her disagreements with her defense
counsel, said counsel resumed representation of Maryea throughout
the pre-trial motion practice discussed infra.
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to dismiss, Maryea objected to the granting of the continuance.
Relying on the co-defendant exclusion in the Speedy Trial Act, 18
U.S.C. § 3161(h)(6) ("Co-Defendant Clause"), Maryea argued that
extending her trial date merely on the basis of co-defendant Woods'
motion to continue was unreasonable:
It is simply submitted that the Court cannot
find the delay caused by Woods' . . . motion[]
to continue to be reasonable as to Maryea. . .
. This is because the Court was no longer
dealing with more than two co-defendants and
one of the defendants was simply looking for
more time to resolve companion state cases.
The district court convened a hearing to address Maryea's
objection, where the district court judge stated to Maryea that the
court was:
fairly aggravated that you're advancing these
arguments that contradict the positions you've
taken already in the case, because I've asked
you repeatedly every time we've talked about
speedy trial if you wanted a severance, and
you've stressed to me every single time you do
not want a severance. Let me ask you this.
Do you want to go to trial in this case next
week? Is that what you want to do? Because
I'm ready to try the case whenever you are.
In response, Maryea's counsel stated that,
[I]n terms of trial strategy, . . . I want Mr.
Woods sitting on one of these chairs along
with everybody else, and that's the truth.
And that's a simply [sic] legal analysis,
factual analysis . . . trial analysis that I
do . . . I'm not looking for severance. I am
objecting to the motion to continue.
The district court judge then asked defense counsel, "But given
that the law says when you don't agree, you have to choose trial
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strategy; right? Do you prefer to be sitting there next to Woods,
or do you prefer your speedy trial? Because that's what the
statute says," and defense counsel responded, "I don't think the
statute says that because I don't move to sever, that I've
forfeited my speedy trial claim."
Evaluating the strategic choices expressed by Maryea in
choosing not to sever her trial from Woods alongside Woods' need
for a delay, the district court denied Maryea's Speedy Trial
objection, extending Woods' and Maryea's trial date. In doing so,
the court stated, "what's reasonable for one may not be reasonable
for another, and that's what's wrong. That's what (h)(6) [the Co-
Defendant Clause] seems to allow for. The fact that when you have
a group, you have people with different interests, different
strategies, different tactics, and there's been no severance, the
clock has to be the same for everyone." Maryea filed a
supplemental motion to dismiss on Speedy Trial Act grounds, but
that motion was denied at trial for the same reasons stated in the
district court's earlier order.
Before trial commenced, the district court sua sponte
ordered that Maryea undergo "a medical and psychological evaluation
to determine her competency to stand trial, including an assessment
of whether, and the extent to which her physical pain impacts that
competency." On November 10, 2010, the court-appointed doctor
submitted his report, concluding that Maryea was competent to stand
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trial. The report confirmed that Maryea was "able to answer all
. . . questions" during the doctor's evaluation and that she
"reported that she uses the law library [to] work on her defense."
After recognizing Maryea's "ongoing pain symptoms," the doctor
observed that said symptoms "did not impair the cognitive process
during the evaluation," and that it would be "a very unusual
circumstance that, with an individual's mental disorder under
reasonable control, the mere presence of pain would make them not
competent to stand trial." The report thus concluded that Maryea's
pain complaints did not affect her competency.
C. Maryea's Trial
On December 30, 2010, Woods entered a plea agreement
which the court accepted. Maryea's trial then commenced on
January 4, 2011. After the fourth day of trial, Maryea was injured
in a car accident while being transported from the courthouse to
the jail. She moved to continue the trial and filed a motion for
a mistrial, which was later withdrawn. The district court granted
the continuance and held two subsequent status conferences to
consider Maryea's complaints of pain and her treatment in the
prison. The district court also ordered an independent medical
evaluation to (1) evaluate and diagnose any injuries Maryea may
have sustained in the car accident; and (2) determine whether the
"continuing effects of those injuries, if any, will prevent her
from meaningfully participating in the ongoing criminal trial and
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assisting in her defense, including observing the evidence and
communicating with her counsel." Following an examination, the
examining doctor concluded that Maryea had suffered a pinched nerve
in her neck, and the district court ordered that an MRI be
performed on her neck based on the report's recommendation. In a
series of hearings following the accident, the district court
monitored Maryea's status and, following the withdrawal of Maryea's
oral motion for a mistrial, scheduled the trial to reconvene on
January 24, 2011.
Upon the recommencement of her trial, Maryea said that
she was experiencing "breakthrough pain," although she also told
the district court that the pain was "not impairing [her] ability
to pay attention or to sit here as of right now." The court
notified her that if her pain reached a point "where it interferes
with your ability to participate meaningfully in your defense and
consult with counsel and the like, I'm sure you're going to let us
know." Maryea confirmed that she would.
On January 25, 2011, defense counsel informed the court
that Maryea was "crying" and "hysterical" after not receiving her
medication prior to being transported to the courthouse. According
to defense counsel, when he asked her to discuss witness strategy,
she said, "I don't care. . . . [d]o whatever you want, I can't do
this anymore." On this basis, counsel informed the court that he
could not "effectively communicate" with his client. The court
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ordered a recess to allow Maryea's medication to take effect, and
then held a status conference on the issue of Maryea's competency.
Defense counsel stated at that conference that he had
"reservations" regarding Maryea's competency, and the court engaged
in a colloquy with Maryea in which she stated on the record that
her mood was "stable," that she could assist her counsel, and that
she wished to "forge [ahead] with this trial." When the district
judge asked her if she understood what he was saying, she
responded, "Absolutely. I can understand. I'm coherent. I can
comprehend." After noting that Maryea had been previously found
competent to stand trial, had been assisting and continued to
assist her lawyer with her defense, and appeared capable of "having
a conversation" with the court, the district judge stated that she
was "quite clearly an adult intelligent person who is able to
understand me and able to make me understand her." As such, the
district judge concluded that she fit "the definition of a
competent defendant" and accordingly allowed the trial to continue.
Evidence closed on January 27, 2011, and Maryea filed a
Federal Rule of Criminal Procedure 29 motion for a judgment of
acquittal, arguing that the government's evidence proved two
distinct conspiracies rather than one overarching conspiracy, and
that the government had not produced sufficient evidence linking
her to the conspiracy charged in the Superseding Indictment. The
district court denied Maryea's motion, stating that, when "viewing
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the evidence in a light most favorable to the prosecution . . . ,
it seems to me that . . . the jury certainly could infer that . . .
the conspirators who did tie this entire course of conduct
together, even if it does amount to more than one conspiracy if
broken down, into a single conspiracy, was Lynette Maryea and Troy
Muder. So for the reasons . . . stated by the U.S. Attorney in his
objection, I have to deny the motion for Rule 29."
The district court charged the jury, and the jury sent a
note to the court during its deliberations asking, "Which
indictment are we supposed to refer to? Jury instructions are
unclear." The court instructed the jury to deliberate and return
a verdict on the Superseding Indictment. The jury then returned a
guilty verdict, and the district court entered judgment on
October 19, 2011. This timely appeal followed.
II. Discussion
Maryea argues that the district court erred by (1)
denying her Speedy Trial Act claims in her motion to dismiss; (2)
failing to order a second mental health evaluation of her
competency to stand trial following her car accident; and (3)
denying her Rule 29 motion based on a prejudicial variance between
the conspiracy proven at trial and that charged in the Superseding
Indictment. We address each issue in turn.
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A. Maryea's Challenges on Appeal
1. Speedy Trial Act Claims
This court "review[s] the district court's denial of a
motion to dismiss based upon the Speedy Trial Act de novo as to
legal rulings and for clear error as to factual findings." United
States v. Maxwell, 351 F.3d 35, 37 (1st Cir. 2003). The Speedy
Trial Act requires that a court grant a defendant's motion to
dismiss for lack of a speedy trial if the defendant is not brought
to trial within seventy non-excludable days. 18 U.S.C. §§ 3161(c)
(h), 3162(a).
Under the Speedy Trial Act, "[i]n any case in which a
plea of not guilty is entered, the trial of a defendant charged in
an . . . indictment . . . shall commence within seventy days from
the filing date . . . of the . . . indictment, or from the date the
defendant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs." 18
U.S.C. § 3161(c)(1). Section 3161 designates periods of time that
may be properly excluded in computing time on the Speedy Trial
clock, including the two exclusions at issue here: the "Co-
Defendant Clause" and the "Ends-of-Justice Clause." Under the Co-
Defendant Clause,"[a] reasonable period of delay when the defendant
is joined for trial with a co-defendant as to whom the time for
trial has not run and no motion for severance has been granted" is
excludable from the seventy-day clock between the filing of an
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indictment and the commencement of trial. 18 U.S.C. § 3161(h)(6).
This provision "stops the [Speedy Trial] clock for one defendant in
the same manner and for the same amount of time as for all co-
defendants." United States v. Rush, 738 F.2d 497, 504 (1st Cir.
1984) (quoting United States v. Campbell, 706 F.2d 1138, 1141 (1st
Cir. 1983) (alteration in original)). The Act also permits the
exclusion of days resulting from the granting of a continuance, "if
the judge granted such continuance on the basis of his findings
that the ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy trial."
18 U.S.C. § 3161(h)(7)(A).
Between Maryea's appearance and trial, 383 days elapsed.
Maryea concedes that, of those days, 204 days are excludable under
the Speedy Trial Act. Maryea also assumes, without conceding, that
for the purposes of appeal: (1) 36 days are excludable under the
First MTC granted to Woods; and (2) 30 of the 58 total days for the
court-ordered competency evaluation are excludable. Therefore, 113
days remain between the filing of the Superseding Indictment and
the commencement of Maryea's trial, and Maryea limits her challenge
in this appeal to those sixty days within that period "erroneously
held to be excludable by the district court based on" that court's
granting of Woods' Second MTC.
Maryea makes two interrelated arguments in her challenge
to the district court's exclusion of the above-referenced sixty
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days. First, she contends that the court erred in not assessing
the reasonableness of the application of the Second MTC as to her
Speedy Trial clock. Second, she asserts that the court erred by
requiring severance from her co-defendant as a pre-condition for
analyzing the reasonableness of the continuance as it applied to
her. We address each argument separately.
a. Application of a Reasonableness Requirement
to the Co-Defendant Clause
Maryea claims that the district court erred in failing to
consider "the reasonableness, vel non, of the delay [resulting from
the granting of the Second MTC] as it applied to [her] situation."
She first argues that the Supreme Court's decision in Bloate v.
United States, 130 S. Ct. 1345, 1349 (2010), supports reading a
reasonableness requirement into the Co-Defendant Clause because, in
that decision, the Supreme Court suggested that the subsections of
§ 3161 may need to be analyzed together before properly excluding
a period of delay. Specifically, Maryea contends that, since the
Supreme Court read the ends-of-justice requirement under subsection
(h)(7) into subsection (h)(1), a subsection that allows exclusions
for procedural delays or delays resulting from ongoing motion
practice and interlocutory appeals, subsection (h)(7) and its
reasonableness requirement must also be read into the Co-Defendant
Clause, subsection (h)(6). Second, Maryea claims that there is no
First Circuit precedent directly on point regarding the application
of the reasonableness requirement to the Co-Defendant Clause.
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While the issue was raised in United States v. Brown, 736 F.2d 807
(1st Cir. 1984), the Court did not reach it due to the fact that
the defendant in that case had not articulated an argument for why
the excluded time was not reasonable as to him. Finally, Maryea
relies on Third and Ninth Circuit law which has upheld the
proposition that, when a delay granted for one defendant in a
multi-defendant trial is applied to a co-defendant's Speedy Trial
clock under the Co-Defendant Clause, a court must assess the
reasonableness of the delay not only as to the first defendant, but
also as to any co-defendant. See United States v. Lewis, 611 F.3d
1172, 1176 (9th Cir. 2010); United States v. Novak, 715 F.2d 810,
816, 821 (3d Cir. 1983), abrogated in part by Henderson v. United
States, 476 U.S. 321, 330 (1986).
Maryea maintains that Woods' Second MTC was not
reasonable as to her since the continuance only gave him more time
to achieve his plea deal with the government, undermining her
defense strategy and resulting in her being stranded as the "lone
defendant to be tried for a conspiracy that originally named
fifteen co-defendants." She likens her case to that of United
States v. Hall, 181 F.3d 1057, 1062 (9th Cir. 1999), in which the
Ninth Circuit held that a defendant suffered prejudice under the
Speedy Trial Act when the district court granted a continuance to
the government for the "primary purpose" of allowing the only other
co-defendant in the case to "pursue plea negotiations."
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The government contends that the district court did not
err when it excluded from Maryea's Speedy Trial clock the period
resulting from the grant of the Second MTC following its
determination that Woods was entitled to a continuance due to
ongoing plea negotiations and a pending state court matter. That
is because the only way that the court could honor Woods' need for
a continuance and Maryea's right to a speedy trial was to grant
Maryea a severance so that she could be tried ahead of Woods.
Since the district court expressly afforded Maryea the option of a
severance and she expressly declined to file a motion to sever due
to her trial strategy to be tried alongside Woods, the district
court's extension of the delay to Maryea was reasonable as the only
way to secure Woods' interest and allow the defendant to pursue her
strategy. The government cites to the Tenth Circuit's recent
decision in United States v. James, 418 Fed. Appx. 751, 754 (10th
Cir. 2011), to support its proposition that a "[d]efendant cannot
have the benefit of his trial strategy and then argue that the
delay resulting from that strategy was unreasonable."
When a Speedy Trial Act violation is alleged by a
defendant, a trial court follows a two-step process. United States
v. Staula, 80 F.3d 596, 600 (1st Cir. 1996). First, it calculates
and determines the aggregate time elapsed awaiting trial. Id. In
this case, the parties do not challenge the district court's Speedy
Trial calculations with respect to the aggregate time elapsed
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between the Superseding Indictment and Maryea's trial. Second, the
Court determines how many days are properly excluded from that
ultimate sum. Id. Maryea does not contest the reasonableness of
the ends-of-justice determination in Woods' Second MTC as to him,
nor does she contest the validity of the Co-Defendant Clause as a
general matter. Rather, Maryea asks the court to impose an
additional requirement in assessing whether days excluded from her
co-defendant's Speedy Trial clock should be excluded from the
ultimate sum of her own Speedy Trial clock--namely, a requirement
that the district court find reasonable as to her days excluded
from her co-defendant's Speedy Trial clock if they are to count as
excludable days from her own Speedy Trial clock.
Maryea is correct that the case law in this Circuit has
not addressed head on whether the Co-Defendant Clause as a general
matter is subject to a reasonableness limitation,2 and we decline
to do so here. However, the court agrees with the government that,
2
Maryea specifically refers to this Court's decision in United
States v. Brown, 736 F.2d 807. In that case, defendant Brown asked
the court to follow the Third Circuit's decision in United States
v. Novak by recognizing a reasonableness limitation on the
application of excludable time from one co-defendant to another.
Id. at 809 (citing Novak, 715 F.2d at 814). This court held that,
since Brown did not provide any specific reasons for why the
excludable period of delay might be reasonable as applied to his
co-defendant but not as applied to him, the Court "need not
interpret the precise interplay of sections (h)(1)(F) and (h)(7) of
the Act." Id. In United States v. Mitchell,723 F.2d 1040, 1048
(1st Cir. 1983), we noted a circuit split on the application of a
reasonableness requirement to the Co-Defendant Clause, but
explicitly declined to resolve the conflict in the circuits due to
defendant Mitchell's failure to file a motion for severance.
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under the facts of this particular case, the district court did not
err when it denied Maryea's motion to dismiss. In line with the
principles outlined in the Supreme Court's decision in Bloate as
well as the reasoning of our sister circuits, the Court will assume
without deciding, for the purposes of this case, that a
reasonableness requirement applies, and that the requirement may be
met through a factors-based assessment. See Bloate, 130 S. Ct.
1345 (holding that time excluded from a Speedy Trial clock for
pretrial motion preparation is not automatically excluded under
§ 3161(h)(1), but may only be excluded when a court makes
appropriate reasonableness findings under § 3161(h)(7)); United
States v. Lewis, 611 F.3d 1172, 1176 & n. 2 (9th Cir. 2010)
(affirming Ninth Circuit precedent that, "in order to attribute a
co-defendant's excludable delay under § 3161(h)(7) to a defendant,
the delay must meet the reasonableness requirement of § 3161(h)
(6)," and noting that the reasonableness requirement "comports with
Supreme Court precedent"); United States v. Stephens, 489 F.3d 647,
655 (5th Cir. 2007) ("Attribution of the excludable delay of one
co-defendant to another co-defendant is not, however, automatic;
rather the period of delay must be reasonable") (citing Henderson
v. United States, 476 U.S. 321, 326-27 (1986); United States v.
Cordova, 157 F.3d 587, 599 (8th Cir. 1998) (applying reasonableness
requirement to and finding reasonable an 80-day delay in co-
defendant's trial resulting from another co-defendant's capture and
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identity hearing); United States v. Howard, 918 F.2d 329, 336 (2d
Cir. 1990) (holding that the Co-Defendant Clause exclusion requires
a defendant to make a motion for severance in order to benefit from
the reasonableness limitation); United States v. Mayes, 917 F.2d
457, 460 (10th Cir. 1990) (applying reasonableness requirement to
Co-Defendant Clause); United States v. Culpepper, 898 F.2d 65, 67
(6th Cir. 1990) (same); United States v. Tobin, 840 F.2d 867, 869-
70 (11th Cir. 1988) (same); United States v. Dennis, 737 F.2d 617,
621 (7th Cir. 1984) (same); United States v. Novak, 715 F.3d 810
(3d Cir. 1983) (same).
In considering the significance of a defendant's failure
to petition for severance in assessing reasonableness, it is
important to be clear about the language and stated purpose of the
Co-Defendant Clause itself, which allows for exclusions of a
"reasonable period of delay when the defendant is joined for trial
with a codefendant as to whom the time for trial has not run and no
motion for severance has been granted." 18 U.S.C. § 3161(h)(6)
(emphasis added). Some circuits have interpreted that provision
as requiring a defendant to file a motion for severance in order to
challenge the reasonableness of the delay on appeal. See United
States v. Howard, 443 Fed. Appx. 596, 598 (2d Cir. 2011) (citing
Vasquez, 918 F.2d at 336-37); Culpepper, 898 F.2d at 67. It is
uncertain that this circuit has imposed such a requirement. See
United States v. Mitchell, 723 F.2d 1040, 1048 (1st Cir. 1983). In
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any event, we consider the failure to move to sever an important
consideration given that our sister circuits have found a petition
for severance relevant in their reasonableness analysis, having
either found that a failure to move for severance contributes to a
finding that a defendant was not prejudiced by a delay granted to
a co-defendant or that, under a totality-of-the-circumstances test,
a defendant's failure to move to sever is an important factor to
consider. See United States v. Messer, 197 F.3d 330, 336-38 (9th
Cir. 1999) (applying a totality-of-the-circumstances test in
determining reasonableness of applying delay to a co-defendant and
listing a defendant's failure to move to sever as a factor to
consider); Cordova, 157 F.3d at 599-600 (finding delay reasonable
where no motion for severance was granted and explaining that a
defendant fails to meet his burden in showing that his right to a
speedy trial has been violated when he fails to argue that the
delay was unreasonable); Franklin, 148 F.3d at 457-58 (stating that
"[a] defendant's failure to move for severance, or otherwise pursue
a speedy trial in the district court, can undermine prejudice
allegations made on appeal"); Mayes, 917 F.2d at 460 (finding no
Speedy Trial Act violation when considering as a factor the
defendant's failure to ask to be tried separately from a co-
defendant); Tobin, 840 F.2d at 869-70 (noting that defendant's
failure to move to sever his case from a co-defendant's was a
factor supporting the reasonableness of a delay); Dennis, 737 F.2d
-22-
at 621-22 (finding the delay reasonable where defendant "at no time
moved to sever his case and had failed to allege any substantial
prejudice resulting from the delay").
To the extent that Maryea alleges prejudice or
unreasonableness under the totality of the circumstances resulting
from her co-defendant having reached a plea agreement with the
government as a result of ongoing negotiations prior to trial --
made possible, at least in part, by the continuances granted by the
district court -- we cannot agree that such a delay goes against
the text, legislative history, and purpose of the Speedy Trial Act.
This is because the "utility of a joint trial [wa]s particularly
compelling here, as the defendants were charged with a single
conspiracy so that the government could be expected to 'recite a
single factual history, put on a single array of evidence, and call
a single group of witnesses.'" Franklin, 148 F.3d at 457. In a
case heavily relied on by Maryea, the Third Circuit stated that
"[t]he Legislative history of section 3161(h)(7) illustrates a
strong congressional preference for joint trials and an intention
that delays resulting from the joinder of codefendants be liberally
excluded." See Novak, 715 F.2d at 814. Courts have accordingly
selected formulas that promote joint trials under the particular
facts of the case based on the stated intent of the Senate in its
1974 and 1979 Senate Reports that the Co-Defendant Clause was
intended to help avoid "the time, expense and inconvenience of
-23-
separate prosecutions." See id. at 815; United States v. Campbell,
706 F.2d 1138, 1141-42 (11th Cir. 1983); S. Rep. No. 1021, 93d
Cong., 1st Sess. 38 (1974); S. Rep. No. 212, 96th Cong., 1st Sess.
24 (1979). Further, Maryea could have avoided any prejudice
resulting from ongoing plea negotiations by seeking severance, and
she has made no showing that the granting of the Second MTC
resulted in Woods reaching the plea agreement which allegedly
prejudiced her, or that she would not have been convicted of the
conspiracy had Woods joined her trial. For all of these reasons,
we find the application of the delay resulting from the Second MTC
to Maryea's Speedy Trial clock to be reasonable.
Maryea's second Speedy Trial Act argument is that the
district court erred in requiring her to either request a severance
or forfeit her Speedy Trial rights. This is because, Maryea
claims, Speedy Trial Act rights may not be waived by a co-
defendant's failure to request a severance based on the Supreme
Court's decision in Zedner v. United States, 547 U.S. 489 (2006),
the rule of a majority of sister circuits, and the text,
legislative history, and purpose of the Act. See Mitchell, 723
F.2d at 1047.
In Zedner, the Supreme Court held that, since the Speedy
Trial Act was designed not only to protect defendants but also the
public interest, defense continuance requests could not be based
merely on a defendant's waiver of his rights under the Act. Id. at
-24-
501. Rather, the granting of a continuance must "fit within one of
the specific exclusions set out in subsection (h)." Id. at 500.
To the extent the consideration of a failure to seek a severance in
a factor-based reasonableness determination might be considered a
"waiver," it does not constitute a prospective waiver of Speedy
Trial Act rights of the kind at issue in Zedner. Firstly, Zedner
involved a blanket prospective waiver "for all time" of a
defendant's rights under the Speedy Trial Act; this case does not.
See Zedner, 547 U.S. at 492-93. Such a broad waiver was deemed
ineffective by the Supreme Court because it found that the breadth
of the waiver by definition did not "fit within one of the specific
exclusions set out in subsection (h)." Id. at 500. In the facts
before us, the exclusion fits within the Co-Defendant Clause, and
we have found the application of the exclusion as to Maryea
reasonable. The Supreme Court in Zedner also found the prospective
nature of the waiver ineffective, distinguishing it from
retrospective waivers and stating that "there is no reason to think
that Congress wanted to treat prospective and retrospective waivers
similarly." Id. at 502. Retrospective waivers, the Court
reasoned, do
not pose a comparable danger because the
prosecution and the court cannot know until
the trial actually starts or the guilty plea
is actually entered whether the defendant will
forego moving to dismiss. As a consequence,
the prosecution and the court retain a strong
incentive to make sure that the trial begins
on time.
-25-
Id. The "waiver" at issue in this case is not a prospective waiver
but is better characterized as retrospective since Maryea could
either assert her right to a speedy trial by moving to sever or
challenge an alleged denial of her Speedy Trial Act rights
following the denial of a motion to sever based on
unreasonableness. Maryea still remained in control of the 70-day
clock as to her since she was not precluded from accelerating the
clock or challenging exclusions from her clock even if she may not
-- and should not -- have control of the 70-day clock as to her co-
defendant. Thus, merely placing conditions on her assertion of her
Speedy Trial Act rights does not constitute an ineffective
prospective waiver "for all time" as prohibited under Zedner.
To conclude, we hold that the district court did not err
in denying Maryea's motion to dismiss for lack of a speedy trial
since the delay caused by Woods' Second MTC was reasonable. The
court thus affirms the district court's finding that no Speedy
Trial violation occurred since, applying the properly excluded days
from Woods' Second MTC, Maryea's Speedy Trial clock did not run in
excess of the requisite seventy days.
2. Mental Competency Determinations
The competency standard for standing trial involves an
inquiry into whether a defendant has "a rational as well as factual
understanding of the proceedings against" him or her, and whether
the defendant "has sufficient present ability to consult his lawyer
-26-
with a reasonable degree of rational understanding." Indiana v.
Edwards, 554 U.S. 164, 170 (2008) (citing Drope v. Missouri, 420
U.S. 162, 171 (1975); Dusky v. United States, 362 U.S. 402, 402
(1960)). Pursuant to 18 U.S.C. § 4241, a district court "shall
order . . . a hearing [to determine the mental competency of the
defendant] if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or
defect rendering him mentally incompetent to the extent that he is
unable to understand the nature and consequences of the proceedings
against him or to assist properly in his defense." 18 U.S.C.
§ 4241(a); see also United States v. Brown, 669 F.3d 10, 17 (1st
Cir. 2012) ("A district court must sua sponte order a competency
hearing if there is reasonable cause to believe that a defendant is
mentally incompetent."). Courts are required "to hold a competency
hearing sua sponte whenever evidence raises a sufficient doubt as
to the competence of the accused." Johnson v. Norton, 249 F.3d 20,
26 (1st Cir. 2001). Factors to consider in guiding a district
judge's inquiry into whether an evidentiary hearing as to
competence is warranted include "a defendant's irrational behavior,
his demeanor at trial, and any prior medical opinion on competence
to stand trial." Id. at 27 (quoting Drope, 420 U.S. at 180). A
district court may consider its own interactions with the defendant
in determining whether there is reasonable cause for an examination
or an evidentiary hearing. United States v. Curtis, 520 F.2d 1300,
-27-
1304 (1st Cir. 1975). Even if a district court has found a
defendant competent when the trial begins, "a significant change in
circumstances in the midst of trial may render a second competency
hearing proper." Yehboah-Sefah v. Ficco, 556 F.3d 53, 82 (1st Cir.
2009). The conviction of a person legally incompetent to stand
trial violates due process. See Johnson, 249 F.3d at 26.
The court reviews the district court's decision not to
hold a competency hearing or order a psychiatric examination for
abuse of discretion, affirming the district court's decision as
long as there was a sufficient evidentiary basis to support its
decision. United States v. Sánchez-Ramírez, 570 F.3d 75, 80 (1st
Cir. 2009) (standard of review of decision not to hold a competency
hearing); Curtis, 520 F.2d at 1304 (standard of review of decision
not to order psychiatric examination). To challenge a district
court's finding of competency, an appellant "must present facts
sufficient to positively, unequivocally and clearly generate a
real, substantial and legitimate doubt as to [her] mental
competence." Brown, 669 F.3d at 17 (quoting United States v.
Collins, 949 F.2d 921, 927 (7th Cir. 1991)).
Maryea argues the district court violated her due process
and statutory rights by failing to order a re-evaluation of her
competency to stand trial after the injuries she suffered in the
January 14th car accident. Specifically, Maryea asserts that the
district court erred because the accident wrought a "significant
-28-
change in circumstances" warranting an evidentiary hearing on her
mental competency.
Maryea points to our decision in Johnson to support her
argument stating that this case, like Johnson, involves a defendant
in a criminal proceeding who was subjected to a physical injury
worthy of creating a "change of circumstances." In Johnson, this
court found that a competency hearing was warranted when the
defendant suffered a blow to the head on the morning of the first
day of trial and also lost consciousness and vomited during trial.
See 249 F.3d at 23, 28. In this case, Maryea cites to the
following which, she claims, created sufficient doubt as to her
mental competency after the accident that should have triggered the
ordering of a mental competency hearing: (1) statements she made
during the January 18, 2011 Status Conference that her pain was
"breaking through" her medication and that she was "damaged,"
"broken," and rendered incapable of participating in her own
defense;3 (2) her breakdown on the sixth day of trial when she
received her medications late; (3) her "rambling, incoherent and
inconsistent" testimony following the court's recess and
questioning of Maryea on that sixth day following her receipt of
her medication; (4) her erratic behavior on the seventh day of
trial when, in response to the court's question concerning how she
3
At this Status Conference and based on Maryea's representations,
the district court granted Maryea's request for a continuance.
-29-
was feeling, she stated that she was "celestial" and objected to
her own counsel while attempting to address the court directly and
through a subsequent pro se motion for a mistrial; and (5)
Dr. Drogin's testimony as to the nature of Maryea's mental
diagnosis as "bipolar with psychotic features," and which provided
the court with descriptions of the disorder that she was exhibiting
at trial. Based on these incidents, Maryea argues that sufficient
doubt was raised as to her competency, and "only a trained expert
could have accurately assessed her competency to continue."
The government rejects these arguments, contending that
the district court was not required to order a second competency
evaluation for Maryea. First, the government argues that Maryea's
post-accident behavior was not materially different from her pre-
trial behavior, particularly with respect to her speech patterns,
unusual use of vocabulary, disagreements with her defense counsel
and filing of pro se motions. Second, the government asserts that
the district court was on notice as to Maryea's bipolar disorder
and physical pain, and sufficiently reviewed the issue of the
impact of physical pain on her psychological state on multiple
occasions, namely during: (1) Maryea's motions for bail; (2) its
order for a mental competency review; (3) its order for a medical
examination following the accident; and (4) its direct evaluations
and colloquies with Maryea on January 24 and 25, when it ordered
additional delays to accommodate her need for medication and
-30-
proceeded only after she was questioned and evaluated. The
government also contests Maryea's arguments that the testimony of
the clinical psychologist at trial should have alerted the district
court to doubt Maryea's competency, arguing that his testimony was
consistent with the mental competency report which indicated that
it would be unusual for physical pain to make a person incompetent
as long as their mental disorder was reasonably under control.
Finally, the government distinguishes this case from
Johnson, noting that the district court in this case did not
continue the trial following the defendant's injury. Rather, the
court stopped the proceedings and only continued when Maryea had
received her medication, had been treated, and the court was
convinced that she was competent. The government likens this case
instead to United States v. Sánchez-Ramírez where the defendant was
found competent to stand trial prior to its commencement, then
suffered a breakdown before closing arguments due to his failure to
take prescribed medications. See 570 F.3d at 79. In Sánchez-
Ramírez, this court found no abuse of discretion when the district
court did not conduct another competency hearing since the court
relied on the fact that the defendant had already been found
competent by experts, a defense motion for a competency hearing was
not renewed -- suggesting that the reasons that gave rise to the
motion were temporary -- and the district court was able to rely on
its own observations of the defendant. Id. at 80-81.
-31-
 The court agrees with the government that there was no
abuse of discretion here. A close look at the record indicates
that the district court had a sufficient evidentiary basis to
support its decision not to order a second mental competency
evaluation. Maryea was originally found competent to stand trial,
and the district court's competency determination was neither
objected to nor appealed. The district court's order for a medical
examination and subsequent questioning of Maryea following the
accident was thorough, and she made clear and coherent statements
about her desire and ability to move forward with the trial.
Maryea's behavior following the accident as well as her behavior
subsequent to receipt of her medication on January 25 was not
demonstrably different than her behavior prior to the accident.
Additionally, the psychologist's testimony regarding her bipolar
disorder, while revealing details about certain aspects of her
psychological condition, did not contradict the competency report's
conclusions that, with adequate treatment and medication, Maryea's
experience of physical pain would not interfere with her
competency.
First, while the record does not end with the district
court's initial competency determination, it is critical to note
that that the initial competency evaluation ordered by the court on
September 13, 2010, explicitly requested a "medical and
psychological evaluation to determine her competency to stand
-32-
trial, including an assessment of whether, and [] the extent to
which her physical pain impacts that competency." It is thus clear
that the district court was aware and sensitive to the fact, early
on in the proceedings, that Maryea's physical pain could impact her
mental state. The district court's finding of competency relied on
the psychiatric report submitted by Dr. Drukteinis on November 10,
2010, and after the court ordered the parties to request any relief
based on said report and found Maryea competent to stand trial,
neither party objected nor appealed that determination.
Second, within days of the accident, the district court
granted Maryea's motion to continue filed immediately after the
accident and ordered that Maryea
undergo an independent medical examination as
soon as possible (preferably within the next
24 hours, if feasible) to further evaluate and
diagnose any injuries she may have sustained
in the recent automobile accident and to
determine whether the continuing effects of
those injuries, if any, will prevent her from
meaningfully participating in the ongoing
criminal trial and assisting in her defense,
including observing the evidence and
communicating with her counsel. A report by
the doctor who conducts the medical
examination shall be filed with this court as
soon as possible. . . .
The district court also ordered that an MRI be conducted.
Additionally, it appears from the record that Maryea's pain was
acutely experienced due to failure to take her medications, and
upon hearing of said pain, the court ordered a recess until her
medications took effect. During the Status Conference conducted
-33-
following Maryea's taking of the medication, the court addressed
the issue of her pain and engaged in a colloquy with her to affirm
her ability to respond to questions intelligently. Not only did
Maryea indicate her desire to proceed, but she demonstrated her
ability to follow the court's line of questioning, to understand
said questioning, to converse and interact with her attorney, and
to provide coherent responses regarding her rights. See, e.g.,
Cody v. United States, 249 F.3d 47, 53 n.5 (1st Cir. 2001) (stating
that the court's observation of the defendant's "appearance and
demeanor as he answered questions throughout the colloquy"
supported the court's competency determination) (citing United
States v. Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000)
("Courts have commonly relied on the defendant's own assurance
. . . that the defendant's mind is clear. Further, the defendant's
own performance in the course of a colloquy may confirm . . . his
assurances.") (citation omitted)). In addition, following the
accident, Defense counsel did not file a motion for a competency
hearing, suggesting that the issues which gave rise to any
competency concern were temporary in nature. See Sánchez-Ramírez,
570 F.3d at 81.
Third, it does not appear from the record that, following
Maryea's receipt of her proper medications, her behavior in court
as it related to her defense was any different from her behavior
prior to the accident. Specifically, transcripts from Maryea's
-34-
pre-trial hearings reveal that Maryea complained about her neck and
back pain while also using unusual vocabulary in her oral and
written statements to the court. In fact, the psychiatric report
explicitly noted Maryea's evasiveness, tendency to speak in
generalities, and her variable moods. However, the report
nevertheless stated that it "would be a very unusual circumstance
that, with an individual's mental disorder under reasonable
control, the mere presence of pain would make them not competent to
stand trial." That Maryea's post-medication behavior appears
consistent with her behavior prior to the accident is another
factor supporting the conclusion that there was no abuse of
discretion in the court's decision not to order a second competency
evaluation.
Finally, the district court did not err in failing to
"diagnose" Maryea's courtroom behavior as identical to those
characteristics of bipolar disorder flagged in the psychiatrist's
evaluations of Maryea. As we just stated, following Maryea's
medication for her extreme pain, the record does not show that
Maryea conducted herself in a manner distinct from her behavior
before the accident. Additionally, the psychiatrist's evaluation
of Maryea did not contradict the court's later determination of
Maryea's competency following the accident since his report stated
that Maryea's experience of physical pain need not interfere with
her mental competency so long as her disorder was under reasonable
-35-
control. The court's observations on the record and the record
itself indicate that Maryea had reasonable control over her mental
faculties after her pain medication had time to take effect.
To conclude, this court finds that the district court had
a sufficient evidentiary basis when it failed to sua sponte order
a second competency evaluation. The facts of this case and the
trial court's response to Maryea were almost identical to the facts
and court's response in Sánchez-Ramírez, where no abuse of
discretion was found by this court when a defendant had been
originally found competent, an expert report confirmed that
competency, no motion for a competency hearing was renewed
following the change of circumstances, and the district court judge
made observations on the record that there were no signs of mental
impairment. Sánchez-Ramírez, 570 F.3d at 81.
3. Prejudicial Variance
To sustain a conviction for conspiracy, the evidence must
show that: (1) a conspiracy existed; (2) the defendant had
knowledge of the conspiracy; and (3) the defendant knowingly and
voluntarily participated in the conspiracy. United States v.
Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011). In proving the
third element, the evidence must establish that the defendant both
intended to join the conspiracy charged and intended to effectuate
the objects of that conspiracy. Id.
-36-
A prejudicial variance occurs when "(1) the facts proved
at trial differ from those alleged in the indictment; and (2) the
error affects the defendant's substantive rights . . . . A claim
that the Government's proof varied impermissibly from the charges
contained in the indictment is essentially a challenge to the
sufficiency of the evidence." United States v. Dunbar, 553 F.3d
48, 61 (1st Cir. 2009) (citation omitted). In assessing a claim of
prejudicial variance, the court first examines "the evidence --
direct and circumstantial -- as well as all plausible inferences
drawn therefrom, in the light most favorable to the verdict, and
determine[s] whether a rational fact finder could conclude beyond
a reasonable doubt that the defendant committed the charged crime."
United States v. Niemi, 579 F.3d 123, 127 (1st Cir. 2009) (quoting
United States v. Wyatt, 561 F.3d 49, 54 (1st Cir. 2009)). Factors
relevant to the inquiry in the context of conspiracy charges
include: "whether the alleged conspirators shared a common purpose,
whether their actions demonstrated interdependency, and the extent
to which participants overlapped during the life of the alleged
conspiracy." United States v. Balthazard, 360 F.3d 309, 315 (1st
Cir. 2004). The government need not prove that the defendant had
"knowledge of every other participant, or of the details of the
conspiracy, . . . but knowledge of the broader conspiracy's
existence is critical." United States v. Franco-Santiago, 681 F.3d
1, 9 (1st Cir. 2012) (citations and quotation marks omitted). A
-37-
defendant cannot succeed with a sufficiency challenge "as long as
a plausible reading of the record supports the jury's implied
finding that [said defendant] knowingly participated in the charged
conspiracy." United States v. Pérez-Ruiz, 353 F.3d 1, 7 (1st Cir.
2003).
If the court finds that the evidence is not sufficient to
permit a jury to find a defendant's express or tacit agreement to
the charged conspiracy, it then looks to whether the evidence was
sufficient to permit a jury, under a proper set of instructions, to
convict the defendant of a related, similar conspiracy. United
States v. Candelaria-Silva, 166 F.3d 19, 39 (1st Cir. 1999). If
the defendant could be convicted of a related, similar conspiracy,
the court then asks whether the variance between the indictment and
the conspiracy proven at trial affected the defendant's substantial
rights or if the difference amounted to harmless error. Id.
Since Maryea preserved this issue through her objections
at trial, de novo review is appropriate. United States v. DeCicco,
439 F.3d 36, 43-44 (1st Cir. 2006).
Maryea asserts that, because nearly all of the evidence
introduced at trial pertained to the Muder rather than the Woods
conspiracy, there was an impermissible variance between the charge
in the Superseding Indictment and the evidence introduced at trial.
Therefore, Maryea claims, her conviction was not supported by
-38-
sufficient evidence and the district court erred in denying her
Rule 29 motion for judgment of acquittal.
In support of her argument, Maryea cites to this court's
decision in Dellosantos. In that case, the two defendants
convicted at trial had been part of an eighteen-defendant
superseding indictment that charged all defendants with joining an
overarching conspiracy to distribute both cocaine and marijuana in
Maine. Dellosantos, 649 F.3d at 110-11. On appeal, this court
found that there was insufficient evidence to support the finding
of a single conspiracy, and instead found two separate
conspiracies: a Massachusetts-based conspiracy to distribute
cocaine only, and a Maine-based conspiracy to distribute both
cocaine and marijuana. Id. at 119. Here, Maryea maintains, the
government submitted evidence of a single, overarching conspiracy,
headed by Muder, to smuggle controlled substances into RCHOC, but
the government did not present sufficient evidence that Maryea
knowingly and voluntarily joined the separate and distinct charged
conspiracy involving Woods, Durham, and the smuggling of Suboxone.
Maryea goes on to assert that she was unfairly prejudiced
by this variance in two ways: (1) inadequate notice of the charges
against her; and (2) prejudicial "evidentiary spillover."
Regarding notice, Maryea claims that, since the Superseding
Indictment named only Maryea and Woods, it put her on notice of
"the smaller, less sophisticated Woods conspiracy, when the
-39-
government actually put Maryea on trial for the larger, more
complex Muder conspiracy." With respect to "evidentiary
spillover," Maryea contends that she was prejudiced by the
transference of guilt to her from evidence incriminating defendants
who participated in another conspiracy in which she was not
involved. Specifically, Maryea asserts that all of the evidence
introduced at trial concerned the Muder conspiracy, and the only
evidence relating to the Woods conspiracy was Durham's testimony
and three calls between Durham and Woods in July 2009.
The government maintains that the evidence presented at
trial supported the jury's verdict that she was part of the
conspiracy charged in the Superseding Indictment. Specifically, it
contends that there was no variance since there was "ample evidence
to permit the jury to conclude that, as charged in [said]
indictment, from April 2009 to September 20, 2009, there was an
ongoing conspiracy to smuggle controlled substances into the
Rockingham Jail, which the defendant joined with a full
understanding of the overall criminal objective." The government
states that an agreement in the conspiracy was reached when Durham
contacted Maryea as instructed by Woods to get her assistance in
continuing to smuggle Suboxone into the prison. After meeting with
Durham multiple times to get the Suboxone, Maryea arranged for the
Suboxone to be packaged "with the Oxycodone that she was already
smuggling for Muder and for all these drugs to be brought to the
-40-
nursing home together so that they could then be transported into
the jail by the trustees. This continued until law enforcement
intervened on September 20, 2009, thereby ending the conspiracy.
The government further argues that this case is
distinguishable from Dellosantos since Maryea knew about Woods'
agreement with Durham to distribute drugs in the jail and decided
to join the endeavor, combining it with her ongoing efforts to
smuggle other controlled substances into the jail for Muder. Thus,
unlike the defendants in Dellosantos -- defendants who were found
to be indifferent to the drug distribution in the first conspiracy
and did not even know that the conspiracy existed for most of the
relevant time period -- Maryea had direct contact with Durham
concerning the Suboxone smuggling and participated in the agreement
between Woods and Muder to smuggle said Suboxone into RCHOC.
In the alternative, the government argues that, if the
court finds that a variance existed, it was not prejudicial to
Maryea. This is because the Woods conspiracy was similar to the
broader conspiracy charged "insofar as it involved the defendant
agreeing with Woods and others to possess with intent to distribute
illegal drugs, including Suboxone and Oxycodone." Maryea had
notice, according to the government, since the Superseding
Indictment charged her with reaching an agreement that ran until
September 20, 2009, the day that Knowles was arrested for dropping
Suboxone and Oxycodone at the jail. Further, the Superseding
-41-
Indictment identified not only Suboxone, but also Oxycodone and
other drugs involved in the conspiracy. The government maintains
that Maryea demonstrated her notice at trial when she identified
her defense theory as one in which she intended to blame Muder by
showing that she was either under duress or did not have the
requisite mental state due to her desire to placate him.
Finally, the government rejects Maryea's arguments
regarding "evidentiary spillover" since "the bulk of the
government's case related to the August-September 2009 time frame
rather than the April-July time frame." Specifically, the
government contends that, even if two conspiracies were proven --
one between Woods and Durham and one between Maryea, Woods, Muder
and others -- Maryea was not prejudiced by the admission of
evidence about the "April through July conspiracy" since it was
clear on the record that Maryea did not know about Durham's
smuggling arrangement with Woods at that time. Therefore, the
government argues, Maryea cannot claim that she was convicted
because of the admission of "incompetent proof about the April-July
conspiracy involving Woods and Durham, since it was obvious to the
jury that the defendant's first dealings with Woods and Durham were
not until later."
In this case, in order to find that a single conspiracy
was charged, it must have been possible for the jury to "infer from
the acts and statements of the witnesses a single ongoing
-42-
'agreement' that embraced [Maryea] and other co-conspirators."
United States v. Jones, 674 F.3d 88, 92 (1st Cir. 2012). We find
that it was more than possible for the jury to so infer.
First, the evidence shows that the activities that took
place between Maryea, Woods and Durham were in fact linked to the
Muder conspiracy's larger operation of smuggling controlled
substances into RCHOC. Co-conspirators Knowles, Noonan and Bowley
testified at trial about the details of the Muder conspiracy's drug
smuggling operation into RCHOC, including the use of trustees to
smuggle drugs through slugs left at the nursing home adjacent to
the prison. The government then presented recorded telephone
conversations between Maryea and Muder indicating delivery
arrangements for the drugs. The government also presented recorded
telephone conversations between Woods and Durham where Woods
indicated he was looking for Suboxone, and on August 14, 2009,
Woods gave Durham Maryea's number and directed her to contact
Maryea because he "owe[d] her boy." In Durham's testimony at
trial, she stated that she not only spoke with Maryea "a few, five,
ten" times, but also gave her Suboxone with the understanding that
"[t]hey were going to end up [in the jail]" to Woods, and that, if
the Suboxone made it in, it was her understanding that Woods "would
give [Maryea's] boyfriend [Muder] a split of [it]." She also
testified that she met Maryea at her home when co-conspirator
Knowles was present and gave her Suboxones for Woods. Finally,
-43-
Durham stated that she got confirmation from Woods that the
Suboxone had made it into the prison. That confirmation was
reinforced at trial by Durham's explanation of recorded telephone
conversations played before the jury in which she and Woods
discussed the Suboxone amounts that Woods had received. Therefore,
Durham's testimony indicates that, while the Woods distribution
operation in part ran separately from Muder's, Woods relied on
Durham and Maryea to procure the Suboxone and incorporate its
distribution into Muder's drug-smuggling operation. The government
also presented evidence of the drugs seized from Knowles and Noonan
upon their arrest at the nursing home, including slugs containing
Xanax, Oxycodone and Suboxone.
This evidence, coupled with the actual conspiracy charged
in the Superseding Indictment, is sufficient for a jury to infer a
single conspiracy involving the smuggling of controlled substances
into RCHOC. The conspiracy charged extended between April 2009 and
September 20, 2009, included Maryea's agreement with Woods and
others -- namely, "other persons both known and unknown to the
grand jury" -- to possess with intent to distribute and to
unlawfully distribute Suboxone as well as Oxycodone, Oxycontin,
Lorazepam, and Ativan. We therefore find that a common goal can be
discerned between the Muder and Woods conspiracies. Under our law,
the common goal requirement has "wide breadth," and may be easily
found here where both conspiracies involved possession with intent
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to distribute and distribution of controlled substances into RCHOC.
See United States v. Sánchez-Badillo, 540 F.3d 24, 29 (1st Cir.
2008) (citation omitted).
Second, Maryea herself embodies the overlap among the
activities' participants. Even if she did not participate at the
beginning of Woods and Durham's Suboxone-smuggling conspiracy, she
joined it later to combine their efforts with the efforts of the
Muder narcotics-smuggling operation. See United States v. Bello-
Pérez, 977 F.2d 664, 668 (1st Cir. 1992) (to determine whether a
defendant participated in the conspiracy, it is not necessary for
the jury to find that the alleged co-conspirators joined the
conspiracy at the same time or shared knowledge beyond a tacit
understanding that their illicit agreement existed, and it is
further not required that all participants knew each co-conspirator
or that each co-conspirator participated at the same time in
furtherance of the criminal venture; rather, what is essential is
that the criminal goal or overall plan "have persisted without
fundamental alteration, notwithstanding variations in personnel and
their roles.").
Third, there was an interdependence among the
participants of the Woods and Muder conspiracies. "Establishing
interdependence among the participants requires determining whether
the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect of the scheme."
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Sánchez-Badillo, 540 F.3d at 29 (quoting United States v. Portela,
167 F.3d 687, 695 (1st Cir. 1999)). This interdependence "makes it
reasonable to speak of a tacit understanding between [a core
conspirator] and others upon whose unlawful acts" his success
depends. Id. (quoting United States v. Glenn, 828 F.2d 855, 858
(1st Cir. 1987)). Based on the evidence presented at trial --
Durham's testimony, the recorded telephone conversations, and the
Suboxone found with other controlled substances in the slugs seized
upon Knowles and Noonan's arrests -- a jury could rationally infer
that Woods' drug-smuggling operation was orchestrated through the
same means as the Muder operation and that Woods' Suboxone supply
depended, at least in part, upon Maryea's successful procurement
and distribution of the substance to RCHOC through Muder's
channels. See United States v. Soto-Beníquez, 356 F.3d 1, 19 (1st
Cir. 2003) (interdependency may be shown where "the success of an
individual's own drug transactions depends on the health and
success of the drug trafficking network that supplies him").4
Having found that a jury could have reasonably concluded
that the Durham-Maryea-Woods activities shared a common purpose
4
Since we do not find that the evidence established an agreement
different from that charged, we need not address the issue of
variance. United States v. Soto-Beníquez, 356 F.3d at 18 n.1
(stating that the Court need not reach the issue of variance
"because we find sufficient evidence to support the finding of a
single conspiracy."). We also need not reach the issue of whether
Maryea was prejudiced by any variance in our analysis. See id.;
Pérez-Ruiz, 353 F.3d at 7.
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with Muder's drug-smuggling operation, had the requisite degree of
interdependency, and were a portion or component of Muder's larger
conspiracy, we cannot agree with Maryea's argument that a variance
existed with respect to the conspiracy charged and the conspiracy
proven.
III. Conclusion
We conclude that the district court did not err in
denying Maryea's motion to dismiss on Speedy Trial Act grounds, nor
did the district court commit an abuse of discretion by not
ordering a second mental health evaluation of Maryea's competency.
We further conclude that the government's proof at trial did not
establish an impermissible variance that would warrant reversal of
Maryea's conviction. Accordingly, the judgment of the district
court as to Maryea is affirmed.
Affirmed.
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