U.S. v. Garcia ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-5623
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEJOS GARCIA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(June 30, 1993)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:
Alejos Garcia was charged with conspiracy to possess
marijuana with intent to distribute in violation of 21 U.S.C. §
846. After a jury trial, he was convicted and sentenced to a
term of imprisonment of sixty-three months to be followed by a
five-year term of supervised release. Garcia appeals his
conviction. Finding no error, we affirm.
I.
In August 1990, Texas authorities in San Antonio began
surveillance of Alejos Garcia and numerous other individuals who
were suspected to be marijuana traffickers. In particular, the
authorities observed various activities in and around a
particular house in San Antonio. The authorities observed Alejos
Garcia and another man, Carlos Garcia,1 go in and out of the
residence. Appellant and Carlos Garcia were eventually
approached by police officers at a location other than the
residence. According to police, when questioned, appellant
appeared quite nervous and told numerous falsehoods regarding his
prior activities. Appellant consented to a search of his
automobile. Police found traces of marijuana scattered all over
the trunk of the car. Appellant was at that point arrested.
Police also recovered a pager and $1,000 in cash from his person.
The police then transported appellant and Carlos Garcia to a
location where surveillance officers had observed the two men
park a truck. Carlos Garcia admitted that the truck belonged to
him. A search revealed that marijuana and wood chips were
scattered in the truck. Police then searched the aforementioned
residence. There police discovered a number of large wooden
crates containing wood chips similar to the type found in Carlos
Garcia's truck. One of those crates contained several bundles of
marijuana wrapped in plastic. Other bundles were located
throughout the house. A total of 250 pounds of marijuana was
seized by police.
At trial, the owner of the house, Norma Satterlund,
testified that Matilde Benavides, one of Garcia's co-
1
The record does not indicate whether the two Garcias are
related.
2
conspirators, had approached Satterlund and offered to pay her if
she would permit Benavides to store marijuana at her house. On
several occasions, Satterlund testified, Benavides and other men
would bring crates of marijuana to be stored at her house.
According to Satterlund, the men would employ a legitimate
packing company to ship the crates to San Antonio, but would use
fictitious names on the shipping documents.2 Satterlund
testified that she observed Alejos Garcia at her house on several
occasions and that, in particular, Garcia was present during
conversations about marijuana.
II.
A. Speedy Trial Claims
A grand jury in San Antonio, Texas, indicted Garcia and his
co-defendants on November 28, 1990, for conspiring to possess
marijuana with the intent to distribute.3 Garcia was not
arrested until almost a year later, on November 20, 1991. On
December 17, 1991, Garcia waived his right to personally appear
at his arraignment. His trial was scheduled to occur on April 6,
1992. On April 3, 1992, Garcia moved to dismiss the indictment
on the ground that he was denied a speedy trial. The district
2
A representative of the shipping company, Basse Truck
Lines, testified at trial and corroborated Satterlund's testimony
about the defendants' employment of the shipping company, which
was unaware of the illicit product that was being shipped.
3
A superseding indictment was returned by the grand jury on
April 24, 1991, although the superseding indictment simply added
charges against Garcia's co-defendants and in no way altered the
original charges against Garcia.
3
court denied this motion. Almost seventeen months later, on
April 13, 1992, Garcia's trial began. Garcia argues that the
district court erred in not dismissing the indictment on the
ground that the Government denied Garcia his right to a speedy
trial under Rule 48(b) of the Federal Rules of Criminal
Procedure,4 the Speedy Trial Act, 18 U.S.C. § 3161(c)(1),5 and
the Sixth Amendment to the United States Constitution.6
i) § 3161(c)(1)
The Government, in its response to Garcia's motion to
dismiss the indictment, conceded that sixty-nine days had passed
between the date of Garcia's non-appearance at his arraignment,7
December 19, 1991, and the proposed date of trial, April 6, 1992.
Garcia argues that the time between his arrest on November 20,
1991, and the arraignment on December 19, 1991, should be also
counted in calculating whether § 3161(c)(1)'s seventy-day period
was exceeded by the Government. We disagree. When an indictment
4
Rule 48(b) provides, in pertinent part, that "if there is
an unnecessary delay in bringing the defendant to trial, the
court may dismiss the indictment, information or complaint."
5
Section 3161(c)(1) provides that a trial "shall commence
within seventy days from the filing date (and making public) of
the information or 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" (emphasis added).
6
The Sixth Amendment provides a defendant with a right to a
"speedy trial." See Barker v. Wingo, 407 U.S. 514 (1972).
7
Because Garcia waived his right to appear at his
arraignment, we must treat his waiver as tantamount to a first
appearance.
4
precedes an arrest -- as occurred in Garcia's case -- the first
appearance before a judicial officer of the court in which the
indictment has been filed is the triggering event. See 18 U.S.C.
§ 3161(c)(1). In this case, therefore, the time between Garcia's
arrest and his non-appearance at the arraignment should be
excluded in computing the seventy-day period.
Although the trial was scheduled to occur on April 6, 1991,
the district court granted the Government a one-week continuance,
which tolled § 3161(c)(1)'s seventy-day clock during the period
of the continuance. According to Garcia, the continuance was
unjustified and, thus, wrongly extended § 3161(c)(1)'s time-
period beyond seventy days. The Government appeared at docket
call on Friday, April 3, 1992, and announced ready for trial to
commence the following Monday. On April 6, however, the
Government announced to the district court that it had discovered
over the weekend that an essential witness was unavailable to
testify. The Government requested a continuance to secure the
presence of the witness. An evidentiary hearing was held on the
Government's motion, and the district court granted a one-week
continuance of the trial.
Any period of delay resulting from the absence or
unavailability of an "essential witness" is excluded in computing
the seventy-day period. 18 U.S.C. § 3161(h)(3)(A). An essential
witness shall be considered absent "when his whereabouts are
unknown and, in addition, he is attempting to avoid apprehension
or prosecution or his whereabouts cannot be determined by due
5
diligence." 18 U.S.C. § 3161(3)(B). Ralph Sramek, the law
enforcement officer who had been in charge of securing the
Government's witnesses, testified that his procedure for
communicating with Norma Satterlund had been by leaving a phone
message at her residence with a relative and then receiving a
return call from Satterlund. Prior to April 3, 1992, Sramek had
not experienced any difficulty in having Satterlund return his
calls. During the week prior to April 3, Sramek spoke with
Satterlund on three separate days. On Thursday, April 2, Sramek
made arrangements with Satterlund to meet on the following day,
Friday, April 3, in San Antonio, Texas.
During their April 2 conversation, Satterlund informed
Sramek that she had been continuously receiving a great deal of
pressure not to cooperate with the Government following her
testimony at the trial of Matilde Benavides, a coconspirator.
According to Sramek, Satterlund claimed that her house had been
"shot up" with a firearm and that her car had been set on fire.
She nevertheless told Sramek that she would appear on April 3 in
San Antonio to testify at Garcia's trial. After Satterlund
failed to appear at the appointment scheduled for the afternoon
of April 3, Sramek attempted to contact her on Friday, Saturday,
and Sunday, but Satterlund never returned the calls.
In granting the Government's motion to continue the trial
for one week, the district court explicitly found that Satterlund
was unavailable and impliedly found that she was an "essential
witness" for purposes of the Speedy Trial Act. We believe that
6
the district court did not abuse its discretion in granting the
Government's motion for a continuance. Accordingly, there was no
violation of the Speedy Trial Act because the trial took place
within the seventy-day period.
ii) The Sixth Amendment
Garcia further argues that the district court erred in
denying his motion to dismiss the indictment because, as he
alleges, he was denied a speedy trial as guaranteed by the Sixth
Amendment to the United States Constitution. The Sixth-Amendment
right to a speedy trial attaches at the time of arrest or
indictment, whichever comes first, and continues until the date
of trial. United States v. Walters, 591 F.2d 1195, 1200 (5th
Cir.), cert. denied, 442 U.S. 945 (1979). Constitutional speedy-
trial claims are resolved by examining the following four
factors: (i) the length of the delay; (ii) the reason for the
delay; (iii) when the defendant asserted his right; and (iv) the
prejudice to the defendant resulting from the delay. See Barker
v. Wingo, 407 U.S. 514, 530 (1972). In assessing prejudice, a
court should look to the following three policies behind the
Sixth Amendment's guarantee of a speedy trial: (i) preventing
oppressive pretrial incarceration; (ii) minimizing a defendant's
anxiety and concern; and (iii) assuring that a delay does not
impair the defense. See Millard v. Lynaugh, 810 F.2d 1403, 1406
(5th Cir.), cert. denied, 484 U.S. 838 (1987).
The first Barker factor -- whether the delay is of
7
sufficient length to be deemed "presumptively prejudicial," id.
at 1406 -- is a threshold consideration. In this case, the
delay from the time of the first formal federal charge, November
20, 1990, to the date of trial, April 13, 1992, was almost
seventeen months. This court has ruled that a thirteen-month
delay between indictment and trial is "presumptively
prejudicial." See Davis v. Puckett, 857 F.2d 1035, 1040-41 (5th
Cir. 1988). Accordingly, the delay in this case was also
"presumptively prejudicial."
Therefore, we turn to the other Barker factors: the reason
for the delay, the point at which the defendant asserted his
rights, and the prejudice (if any) to the defendant resulting
from the delay. See Barker, 407 U.S. at 530. The principal
reason for the delay resulted from the Government's inability to
apprehend Garcia, who was believed to be located in Laredo,
Texas. During the hearing on Garcia's motion to dismiss the
indictment, Sergeant Sramek testified concerning the efforts by
the Government to locate and arrest Garcia. According to Sramek,
he informed narcotics officers in Laredo, Texas, of the pending
warrant for Garcia's arrest. Furthermore, "on numerous
occasions," Sramek testified, he telephoned the narcotics
officers in Laredo and requested them to look for Garcia. The
officers in Laredo would then report back to Sramek regarding
their lack of success. The evidence reflects that the delay in
arresting Garcia was not caused by the Government's lack of
diligence. In addition, once Garcia was arrested, there was no
8
significant delay in commencing trial.
With respect to the next Barker factor, Garcia did not
complain about any trial delay until April 3, 1992, when he filed
a motion to dismiss the indictment. In addition, on February 27,
1992, Garcia himself moved to continue the trial. With respect
to the final Barker factor, Garcia argues that he was prejudiced
by the delay because his key witness was unable to recall
accurately "events of the distant past." The record, however,
does not indicate that the Government attempted any deliberate
dilatory tactics in order to hamper the defense, which militates
against a finding of prejudice. Barker, 407 U.S. at 531.
Finally, we observe that Garcia has not alleged that he was
subjected to oppressive pretrial incarceration or that he was
anxious or concerned while awaiting trial. Indeed, he would be
hard pressed to make such an argument in view of the fact that he
was at large for an entire year following the return of the
indictment.
Taking into account all of the Barker factors, we believe
that Garcia has failed to show that his constitutional right to a
speedy trial was violated. The district court, therefore, did
not err in denying Garcia's motion to dismiss the indictment on
constitutional grounds.8
8
Because there was nothing approaching a Sixth Amendment
violation in this case, we likewise believe that there was no
violation of Rule 48(b) of the Federal Rules of Criminal
Procedure. This court has held that Rule 48(b) does not require
dismissal absent a Sixth Amendment violation, see United States
v. Hill, 622 F.2d 900, 908 (5th Cir. 1980), and that a district
court has extremely broad discretion regarding whether to dismiss
9
B. Sufficiency of the Evidence
Garcia contends that the only evidence to support the
conviction was "impeached testimony from Norma Satterlund," an
accomplice witness. In addressing a claim of insufficient
evidence, we must ask "``whether, after viewing the evidence in
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.'" Guzman v. Lensing, 934 F.2d 80, 82
(5th Cir. 1991) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
In effect, Garcia is arguing that the evidence is
constitutionally insufficient because Satterlund should not have
been believed. This court, however, is concerned only with the
sufficiency -- not the weight -- of evidence. See United States
v. Greenwood, 974 F.2d 1449, 1458 (5th Cir. 1992) ("whether
judges doubt the credibility of a witness, even an accomplice
witness cooperating with the Government, is beside the point in
reviewing a sufficiency claim such as this"). The credibility of
the witnesses and the weight of the evidence is the exclusive
province of the jury. Id. Particularly in view of the
corroborating evidence in this case, see supra Part I, we believe
that a rational jury could find beyond a reasonable doubt that
Garcia was a member of the conspiracy.
under Rule 48(b), see United States v. Novelli, 544 F.2d 800, 803
(5th Cir. 1977).
10
C. Alleged Hearsay Testimony
Finally, Garcia argues that Satterlund's testimony regarding
Garcia getting paid by a co-conspirator was improperly admitted.
Satterlund's testimony reflects that she heard a discussion in
which one of the co-conspirators demanded money to pay himself
and others, including Garcia. At trial, Garcia failed to object
to this testimony on hearsay grounds. If there is no
contemporaneous objection to testimony whose admissibility is
contested on appeal, the "plain error" standard of review
applies. See United States v. Lechuga, 888 F.2d 1472, 1480 (5th
Cir. 1989). In order to constitute plain error, the error must
have been so fundamental as to have resulted in a miscarriage of
justice. Id. A statement by a coconspirator made "during the
course and in furtherance of the conspiracy" is not hearsay.
FED. R. EVID. 801(d)(2)(E). Statements regarding the payment of
money for services rendered in accomplishing the illegal goals of
a conspiracy can be considered to be "in the course and in
furtherance of the conspiracy." See United States v. Miller, 664
F.2d 94, 98-99 (5th Cir.), cert. denied, 459 U.S. 854 (1981);
United States v. McGuire, 608 F.2d 1028, 1032-33 (5th Cir. 1979),
cert. denied, 444 U.S. 1092 (1980). Thus, there was no error in
admitting the testimony, plain or otherwise.9
9
We note that Garcia's attorney makes a reference in
Garcia's appellate brief to alleged "outrageous conduct" by the
Government in this case. Because of Garcia's counsel's failure
to adequately articulate his argument, we are unable to assess
this claim. However, our independent review of the record
reveals no such misconduct.
11
III.
For the foregoing reasons, we AFFIRM Garcia's conviction.
12