United States v. Markey Olloque

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NOT FOR PUBLICATION JUN 25 2014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
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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
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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.
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