United States v. Pablo J. Carrillo

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1033
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United States of America, *
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Appellee, *
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v. *
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Pablo J. Carrillo, *
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Appellant. * Appeals from the United States
District Court for the Western
__________ District of Missouri.
No. 00-1039 [UNPUBLISHED]
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United States of America, *
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Appellee, *
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v. *
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Rogelio Torres, *
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Appellant. *
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Submitted: September 12, 2000
Filed: September 19, 2000
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Before RICHARD S. ARNOLD, FAGG, and BYE, Circuit Judges.
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PER CURIAM.
A jury convicted Pablo J. Carrillo and Rogelio Torres (collectively the
defendants) of conspiracy to possess with intent to distribute methamphetamine and
of aiding and abetting the attempt to possess with the intent to distribute
methamphetamine. The defendants appeal, and we affirm.
The defendants first contend the district court committed error in denying their
motions to dismiss for violation of the Speedy Trial Act, 18 U.S.C. § 3161(c) (1994).
We disagree. The Speedy Trial Act requires that criminal defendants be brought to trial
within seventy days of the later of the filing date of the information or indictment or the
defendant's first court appearance, see id., but excludes from the seventy-day
computation certain periods of delay, see id. § 3161(h). Here, the Government moved
for a continuance on the day the trial was to begin, and the district court granted the
motion, holding both that an essential Government witness was unavailable due to
health problems, see id. § 3161(h)(3) (Speedy Trial Act permits delay because of
unavailable essential witness), and that the ends of justice were served by granting the
continuance, see id. § 3161(h)(8)(A) (Speedy Trial Act allows delay if delay serves
ends of justice). As the defendants correctly contend, the Speedy Trial Act requires the
district court to state on the record the reasons why the ends of justice would be served
by granting a continuance, see id., and the district court failed to do so in this case.
There is, however, no similar requirement that the district court make such findings
when granting a continuance due to the unavailability of an essential witness, see id.
§ 3161(h)(3) – the district court's alternate rationale for granting the Government's
motion for continuance. See United States v. Hohn, 8 F.3d 1301, 1305 (8th Cir. 1993);
United States v. Turner, 203 F.3d 1010, 1017 (7th Cir. 2000). Thus, the defendants'
Speedy Trial Act claim fails.
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Having carefully reviewed the record and the parties' briefs, we also reject as
meritless the defendants' remaining contentions. First, the district court did not abuse
its discretion in instructing the entire jury panel that there was no reason to be
concerned for their safety after one juror asked the court clerk if he should have such
concerns. See United States v. Wiley, 997 F.2d 378, 383-84 (8th Cir. 1993) (standard
of review). Second, the district court did not abuse its discretion in refusing to submit
to the jury the defendants' proposed credibility instruction – Eighth Circuit Model Jury
Instruction No. 4.05A – because the instruction "'actually given by the [district] court
adequately and correctly cover[ed] the substance of the requested instruction.'" United
States v. Risch, 87 F.3d 240, 242 (8th Cir. 1996) (quoted case omitted); see United
States v. Butler, 56 F.3d 941, 945 (8th Cir. 1995) ("Eighth Circuit Model Instructions
are not an exhaustive list of mandatory instructions for district courts from which no
deviation may occur, 'but are merely helpful suggestions'"). Third, there was more than
ample evidence to support the defendants' convictions. See United States v. Cabrera,
116 F.3d 1243, 1244-45 (8th Cir. 1997) (elements of conspiracy charge); United States
v. Matlock, 109 F.3d 1313, 1318 (8th Cir. 1997) (elements of aiding and abetting
charge). Fourth, the district court did not abuse its discretion in sustaining the
Government's relevancy objection during Carrillo's cross examination of DEA Special
Agent McCue, both because the question to which the Government objected sought
irrelevant information and because the question was not an attempt to impeach the
agent. See United States v. Mulder, 147 F.3d 703, 707-08 (8th Cir. 1998). Finally, the
district court did not abuse its discretion in denying Torres's motion to sever – Torres
has not shown that he suffered real prejudice because his case was tried with his
coconspirators or that the jury could not compartmentalize the evidence against each
defendant. See United States v. Rodgers, 18 F.3d 1425, 1431-32 (8th Cir. 1994).
We affirm. See 8th Cir. R. 47B.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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