United States v. Markey Olloque ( 2014 )


Menu:
  •                                                                              FILED
    NOT FOR PUBLICATION                              JUN 25 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA                          No. 12-50435
    Plaintiff-Appellee,                 D.C. No. CR 11-00780-GW
    v.
    MEMORANDUM*
    MARKEY RAYMOND OLLOQUE,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Central District of California
    George Wu, District Judge, Presiding
    Argued and Submitted June 4, 2014
    Pasadena, California
    Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
    Judge.**
    Markey Olloque (“Olloque”) was convicted of possession with intent to
    distribute at least five grams of methamphetamine, see 21 U.S.C. § 841(a)(1) and
    (b)(1)(B)(viii), possession of a firearm in furtherance of a drug trafficking crime, see
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Edward R. Korman, Senior District Judge for the U.S.
    District Court for the Eastern District of New York, sitting by designation.
    18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm and ammunition by a
    convicted felon, see 18 U.S.C. § 922(g)(1). Olloque was sentenced to fifteen years
    in custody. This appeal followed.
    1.     During defense counsel’s voir dire, one prospective juror indicated that
    she was “bother[ed]” by the reasonable doubt standard and another juror indicated that
    he or she “partly agree[d]” with the first juror. After defense counsel asked each juror
    if they could set aside their personal feelings and apply the appropriate legal
    standards, neither juror indicated any unwillingness or inability to do so. Moreover,
    the district court extensively discussed the reasonable doubt standard throughout the
    voir dire proceedings and questioned the jurors about their ability to set aside personal
    opinions and follow the court’s instructions. The record does not indicate that defense
    counsel moved to excuse the jurors for cause or exercised any peremptory challenge
    with respect to those jurors.
    Under these circumstances, Olloque failed to meet his burden to “show that the
    evidence of partiality before the district court was so indicative of impermissible juror
    bias that the court was obliged to strike [the prospective juror] from the jury, even
    though neither counsel made the request.” See United States v. Mitchell, 
    568 F.3d 1147
    , 1151 (9th Cir. 2009). Indeed, Olloque did not move to dismiss the jurors for
    cause and, because defense counsel failed to identify the prospective jurors by number
    2
    for the record, Olloque cannot even show that either prospective juror was seated on
    the petit jury.
    2.     When police officers arrived to search his hotel room, Olloque retrieved
    a loaded handgun and a bag of methamphetamine and threw both objects out of his
    hotel room’s bathroom window in the approximately 2.5 minutes that elapsed from
    when officers first knocked on the door and when Olloque and his girlfriend came out
    of the bathroom. In the hotel room, officers discovered $210 in United States
    currency, a methamphetamine pipe, ten .38 caliber special bullets, two digital scales,
    one mechanical scale, a switchblade, eleven .22 caliber bullets contained in a safe, a
    camouflaged handgun holster, a black buck knife, and false identification documents.
    Olloque had been staying at the hotel for approximately three weeks and the front
    desk clerk testified that various people would frequently come up to Olloque’s room,
    but would not stay long. An expert witness also testified that guns and knives are
    commonly used by drug dealers for protection, and that drug dealers often have fake
    identification cards so as to conceal their true identities from law enforcement. Under
    these circumstances, viewing the evidence and drawing the inferences in the light
    most favorable to the prosecution, the jury could have found the “in furtherance of”
    element of 18 U.S.C. § 924(c) to be satisfied beyond a reasonable doubt. See Jackson
    3
    v. Virginia, 
    443 U.S. 307
    , 319 (1979); United States v. Hector, 
    474 F.3d 1150
    ,
    1157-58 (9th Cir. 2007).
    3.   Finally, Olloque failed to file a timely written response after the
    prosecutor filed an information alleging that he had three prior felony drug
    convictions, see 21 U.S.C. § 851, including a conviction for possession of a controlled
    substance while armed with a firearm in violation of California Health and Safety
    Code § 11370.1. Any challenge not raised by response to an information is waived
    unless good cause for failing to do so is shown. See 21 U.S.C. § 851(c)(2); United
    States v. Stephens, 
    35 F.3d 451
    , 453 (9th Cir. 1994). No such showing has been made
    here.    Indeed, Olloque stipulated that he was convicted of the felony and
    acknowledged the conviction in the sentencing hearing.
    AFFIRMED.
    4
    

Document Info

Docket Number: 12-50435

Judges: Gould, Korman, Smith

Filed Date: 6/25/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024