U.S. v. Cisneros

• Decision Date: 13 May 1997
• Docket Number: No. 95-40711,95-40711
• Citation: 112 F.3d 1272
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Gabriel CISNEROS, also known as "El Guero"; Javier Rojas Cisneros, also known as "El Negro", and Ivo Perez, Jr., Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1272

112 F.3d 1272

UNITED STATES of America, Plaintiff-Appellee, v. Juan Gabriel CISNEROS, also known as "El Guero"; Javier Rojas Cisneros, also known as "El Negro", and Ivo Perez, Jr., Defendants-Appellants.

No. 95-40711.

United States Court of Appeals Fifth Circuit

May 13, 1997.

Alice Ann Burns, Asst. U.S. Atty., Paula Camille Offenhauser, Assistant U.S. Attorney, James Lee Turner, Houston, TX, for Plaintiff-Appellee.

James Stafford, Houston, TX, for Juan Gabriel Cisneros and Javier Cisneros, Defendants-Appellants.

Abraham S. Kazen, III, Pflugerville, TX, Gocha Allen Ramirez, Rio Grande City, TX, for Ivo Perez, Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves three appellants who were convicted of various drug offenses. In regard to their convictions, the arguments on appeal include: a Speedy Trial Act violation; a challenge to the district court's denial of their motion for new trial; a challenge to the sufficiency of the evidence; and a violation of the Fourth Amendment. In regard to sentencing, the issues include one of first impression, namely, whether a deferred adjudication in Texas constitutes a "prior conviction" in the context of 21 U.S.C. § 841(b)(1)(A), a mandatory sentence enhancement provision. Finding no reversible error, we affirm.

I. PROCEDURAL HISTORY

On April 4, 1995, Ivo Perez, Jr. (Perez), Juan Gabriel Cisneros (Juan), and Javier Rojas Cisneros (Javier) were charged, ¹ along with ten other codefendants, with various drug trafficking offenses in a superseding twenty-count indictment. The following six counts all alleged violations of 21 U.S.C. § 841(a)(1), § 841(b)(1)(B) and 18 U.S.C. § 2. Count 10 charged Perez with possession with intent to distribute in excess of 100 kilograms of marijuana on March 7, 1992. Count 11 charged Perez with possession with intent to distribute in excess of 1000 kilograms of marijuana on March 24, 1992. Count 12 charged Perez with possession with intent to distribute in excess of 100 kilograms of marijuana in August 1992. Counts 13 and 14 charged Juan and Javier with possession with intent to distribute in excess of 100 kilograms of marijuana in May 1994. Count 19 charged Juan and Javier with possession with intent to distribute in excess of 100 kilograms of marijuana on June 7, 1994.

Count 17 charged that, from 1986 until the return of the indictment in April 1995, Perez, Juan, and Javier conspired to possess with intent to distribute in excess of 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A), and § 846. Finally, count 20 charged Juan and Javier with money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i).

On May 9, 1995, the district court, determining that there was a possible conflict of interest between the Cisneroses and Perez, ordered their common counsel disqualified from representing Perez. Perez then retained new counsel. On May 25, Javier moved to suppress evidence seized from a search of his residence, and Perez's new attorney moved for a continuance. Both motions were denied, and a jury trial commenced on June 2, 1995. The jury found the defendants guilty as charged.

The defendants moved for a new trial based upon the discovery of a "new witness." The district court, after holding an evidentiary hearing, denied the motion, and sentenced the defendants as follows: (Juan) 360 months on each of the possession counts, life imprisonment on the conspiracy count, and 240 months on the money laundering count; (Javier) 262 months on the possession and conspiracy counts, and 240 months on the money laundering count; (Perez) 240 months on all counts. ²

II. ANALYSIS

A. SPEEDY TRIAL ACT/CONTINUANCE

Perez argues that the district court's denial of his motion for continuance violated the Speedy Trial Act. 18 U.S.C. § 3161(c)(2). Section 3161(c)(2) provides that "[u]nless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se."

When evaluating a district court's ruling involving the Speedy Trial Act, we review facts for clear error and legal conclusions de novo. United States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir.1991). Here, the facts underlying the district court's ruling are undisputed. On April 20, 1995, Perez, along with his two codefendants, made his first appearance with counsel. On May 9, 1995, the district court, upon the Government's motion, disqualified Perez's counsel due to conflict of interest. At the conclusion of the hearing, the district court instructed counsel to "please advise Mr. Perez and the magistrate that this case is already set for final pretrial and jury selection.... It may require additional time to be given to the attorney or the like."

Later that day, Perez appeared before the magistrate judge who advised him that he should timely retain counsel and that he was "entitled to a 30-day period for preparation of trial with the new attorney." On May 22, Perez retained counsel, who entered his appearance three days later on May 25, 1995. That same day, Perez's new counsel filed a motion for a 60-day continuance, asserting that one week was an insufficient amount of time to prepare for a "case of this magnitude." The district court denied the motion without reasons on June 1, and jury selection began the next day. Counsel filed a motion for a 30-day continuance on June 2, 1995, which was denied without reasons that same day. Trial on the merits began on June 12, 1995.

To support his claim that § 3161(c)(2) of the Speedy Trial Act was violated, Perez relies on this Court's decision in United States v. Storm, 36 F.3d 1289 (5th Cir.1994), cert. denied, 514 U.S. 1084, 115 S.Ct. 1798, 131 L.Ed.2d 725 (1995). In that case, the two codefendants, represented by the same attorney, appeared before the court on February 12, and the court scheduled a hearing on February 19, to determine whether there existed a potential conflict of interest. The court also scheduled the trial for March 15. On the day of the hearing, February 19, the court disqualified Storm's counsel and appointed an attorney to represent him. That same day, newly appointed counsel appeared before the court with Storm. At that time, counsel moved for a continuance based on the Speedy Trial Act, arguing that going to trial on March 15 would violate the 30-day requirement for counsel's trial preparation. The district court denied the motion, "stating that the 30-day period runs from the defendant's first appearance before the court with counsel, and Storm's first appearance with counsel was more than 30 days prior to the trial date." Id. at 1292. On appeal, this Court squarely held "that Storm was tried in violation of the 30-day trial preparation requirement found in § 3161(c)(2) of the Speedy Trial Act." Id. at 1293.

The Government, on the other hand, cites United States v. Jackson, 50 F.3d 1335 (5th Cir.1995). In that case, the defendant's retained counsel had at least thirty days to prepare for trial. That trial ultimately ended in a mistrial, and retained counsel withdrew. The court subsequently appointed counsel for Jackson on February 18. The court set the date for the second trial on March 2, prompting counsel to move for a continuance, which the district court denied. Jackson appealed to this Court, arguing that the denial of his motion for continuance combined with only seven days' notice to retry the case violated § 3161(c)(2). This Court rejected his argument, holding "that, when a defendant is represented by counsel who has had at least 30 days in which to prepare for trial, as Jackson was, § 3161(c)(2) is satisfied; the retention or appointment of new counsel does not trigger a new 30-day period." Id. at 1339.

Unlike Jackson, Perez's first attorney did not have at least 30 days to prepare for trial. Instead, the pertinent facts in Perez's case are nearly identical to the facts in Storm. Storm clearly controls this case. Accordingly, we conclude that Perez was tried in violation of the 30-day trial preparation requirement in § 3161(c)(2).

The next question is whether such error was harmless. Id. at 1294. ³ Perez adamantly argues that he was prejudiced by having only nine days to prepare for jury selection and another nine days to investigate and prepare for trial. To establish harm, Perez points to the affidavit of Armando Martin-Trevino, which his counsel obtained after the conclusion of trial. ⁴

After carefully examining the record, we conclude that Perez has failed to show prejudice. Most importantly, the evidence reveals that Trevino would not have testified at Perez's trial; instead, he would have invoked the Fifth Amendment. On August 21, at the hearing on Perez's motion for new trial, Trevino invoked his Fifth Amendment privilege against self-incrimination. Trevino asserted, however, that he would be available to testify for Perez after the conclusion of his trial in Dallas, which was set to commence on September 5. ⁵ Upon questioning by the court, Trevino stated that he would not have testified for Perez at the trial that commenced on June 12. It is therefore clear that, had the district court properly given Perez's counsel the required 30-day trial preparation period, Trevino still would not have been available to testify at Perez's trial. Moreover, even if Trevino had testified to the matter contained in the affidavit, we are satisfied that Perez has not shown prejudice sufficient to call for the vacating of Perez's convictions.

B. MOTION FOR NEW TRIAL

The Cisneroses argue that the district court erred in denying the motion for new trial based on the prosecution's failure to disclose exculpatory evidence in violation of Brady v....