U.S. v. Lugo

Decision Date11 March 1999
Docket NumberNo. 98-4020,98-4020
Parties1999 CJ C.A.R. 1420 UNITED STATES of America, Plaintiff-Appellee, v. Claudio LUGO, aka Lugo Mano, Joel Logue-Lugo, Joel Lugo Luke, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Richard G. McDougall, Assistant United States Attorney, (Paul M. Warner, United States Attorney, Leshia M. Lee-Dixon, Assistant United States Attorney with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Robert L. Booker, Booker & Associates, (David H. Tolk of Booker & Associates, with him on the brief), Salt Lake City, Utah, for Defendant-Appellant.

Before BRORBY, McWILLIAMS, and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Claudio Lugo appeals his conviction in federal district court for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and re-entry of a deported alien, 8 U.S.C. § 1326. Mr. Lugo appeals, asserting that the district court erred by: (1) denying his right to a speedy trial, in violation of 18 U.S.C. § 3161(c)(1) and the Sixth Amendment to the United States Constitution; (2) denying his motion to suppress evidence obtained as the result of an illegal detention and search of the automobile he was driving; (3) admitting his confession into evidence; (4) admitting evidence of his prior criminal history; and (5) improperly applying a sentencing enhancement pursuant to U.S.S.G. 2L1.2. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

On October 27, 1996, at approximately 12:00 a.m., Trooper Shields of the Utah Highway Patrol was patrolling a section of I- 15 in Southern Millard County, Utah, when he observed a vehicle traveling northbound at a high rate of speed. The officer followed the vehicle, which was clocked at a speed of ninety-one miles per hour, learned that the vehicle was registered to Jorge Lopez of Salt Lake City, Utah, and pulled over the vehicle near Fillmore, Utah.

Three individuals were inside the automobile-two males in the front and a female passenger in the back seat. The officer approached the vehicle, informed the occupants that they were being stopped for speeding, and asked Mr. Lugo, who was the driver, for his license. At this time, the male passenger offered identification and stated that Mr. Lugo did not have a driver's license. After asking Mr. Lugo for identification several times, the officer told him that he would be arrested and taken to jail if he could not produce any identification.

A check of motor vehicle records revealed that there was no record of a driver's license issued to Claudio Lugo in California or Utah and that the vehicle had not been reported stolen. The officer returned to the vehicle and conducted a "pat down" search of Mr. Lugo. Mr. Lugo said that the owner, Jorge Lopez, was his father's cousin. When asked about the whereabouts of Mr. Lopez, Mr. Lugo responded that Mr. Lopez was in Mexico with his father.

During a search of the passenger compartment, the officer found a wallet in the front seat containing $1,600 in cash and no identification. The officer also noticed a strange odor emanating from the vehicle, and suspected it was a masking agent or black tar heroin. The odor was stronger toward the rear of the car. When the officer initially stopped the vehicle and shined his flashlight into the car's interior, he had noted that the floor near the back seat appeared to be altered. While searching the area around the back seat, a compartment was discovered under the carpet. After backup arrived, the officer pulled back the carpet and found several objects wrapped in duct tape within the compartment. At this point, Mr. Lugo was placed under arrest for possession of a controlled substance. The packages were left wrapped in duct tape, and the vehicle was taken into police custody where a complete search was conducted. The packages were later found to contain cocaine.

At approximately 5:45 a.m., Mr. Lugo was advised of his Miranda rights in English. He advised the officer that he was willing to waive his rights and answer questions. Mr. Lugo admitted that the drugs belonged to him and that he was paid to drive the car with the cocaine between California and Utah.

On November 20, 1996, a federal grand jury indicted Mr. Lugo on the drug and reentry charges described above. On March 25, 1997, Mr. Lugo made his initial appearance in federal court. His arraignment took place on March 28, 1997. Mr. Lugo filed a motion to suppress evidence on April 23, 1997, and an evidentiary hearing on that motion was held on April 25, 1997. A second evidentiary hearing on Mr. Lugo's motion to suppress was held on June 26, 1997 to address issues that had not been raised in the first hearing. The court denied Mr. Lugo's motion to suppress on September 8, 1997.

The government filed notice of a sentencing enhancement on October 20, 1997, and a jury trial commenced on October 21, 1997. On October 22, 1997, the jury found Mr. Lugo guilty on both counts of the indictment. On January 27, 1998, the district court sentenced Mr. Lugo to 120 months in prison and eight years of supervised release.

Discussion
A. Speedy Trial

Mr. Lugo's first argument on appeal is that he was denied his statutory and constitutional right to a speedy trial. We review de novo the district court's compliance with the requirements of the Speedy Trial Act and the alleged constitutional violation of the right to a speedy trial. See United States v. Gomez, 67 F.3d 1515, 1519 (10th Cir.1995). We accept the district court's factual findings unless clearly erroneous. See id.

1. Speedy Trial Act

The Speedy Trial Act is designed to protect a defendant's constitutional right to a speedy trial and serve the public interest of adjudicating criminal proceedings promptly. See United States v. Mora, 135 F.3d 1351, 1354 (10th Cir.1998). The Act requires that a criminal defendant's trial commence within seventy days of the filing of the indictment or from the date the defendant first appears before a judicial officer of the court, whichever is later. See 18 U.S.C. § 3161(c)(1). Certain periods of delay are excluded and do not count as part of the seventy day limit. See 18 U.S.C. § 3161(h)(1)-(9). In addition, "[f]ailure of the defendant to move for dismissal prior to trial ... shall constitute waiver of the right to dismissal." 18 U.S.C. § 3162(a)(2).

The government argues that Mr. Lugo waived his right to raise the Speedy Trial Act issue because he never filed a formal motion to dismiss with the district court. On March 28, 1997, at his arraignment, Mr. Lugo indicated that he might file a motion to dismiss on speedy trial grounds and there was some discussion on the issue. The magistrate judge never suggested that Mr. Lugo was relieved of the necessity of formally raising the issue, stating that Mr. Lugo could "go ahead and file [his] motion" if he wished to pursue the matter. On April 1, 1997, Mr. Lugo advised the district court that he had just begun research with respect to the speedy trial issue and again indicated that he might file a motion to dismiss. The court set a briefing schedule in the event Mr. Lugo decided to file such a motion, but a motion was never filed.

We agree that Mr. Lugo failed to file a motion to dismiss on Speedy Trial Act grounds prior to trial and has therefore waived his right to dismissal under 18 U.S.C. § 3162(a)(2). Although this court in United States v. Arnold, 113 F.3d 1146 (10th Cir.1997), found that raising the issue orally in a chambers conference could constitute a motion as required by 18 U.S.C. § 3162(a)(2), Arnold is distinguishable from the case at bar. In Arnold, when the defendant brought up the Speedy Trial Act issue in chambers conference, the district court explicitly acknowledged that it would accept the discussion as a formal motion to dismiss. See id. at 1149. In Mr. Lugo's case, however, neither the district nor the magistrate judge ever indicated that any discussion about the Speedy Trial Act issue would be deemed a motion to dismiss as required by 18 U.S.C. § 3162(a)(2); see also Fed. R. Crim P. 12(b). Unlike Arnold, the record reflects that the district court in Mr. Lugo's case indicated that it would consider the motion only after it was properly filed. Thus, Mr. Lugo did not validly raise a Speedy Trial Act claim before trial and has therefore waived the right to dismissal under the plain language of 18 U.S.C. § 3162(a)(2). See Gomez, 67 F.3d at 1520 ("[J]ust as the Act provides a remedy for violation of its speedy trial mandate, so too it unequivocally provides that the failure of a defendant to move for dismissal prior to trial constitutes a waiver of any right to that remedy.").

In any event, Mr. Lugo's arguments fail because his trial took place within the time required by the Speedy Trial Act. In this case, the Speedy Trial Act clock began to run on March 25, 1997, the date of Mr. Lugo's first appearance in federal court. Mr. Lugo's trial did not begin until October 21, 1997, 210 days or approximately seven months after the tolling period began. However, Mr. Lugo filed a motion to suppress on April 1, 1997, which constitutes an excludable delay under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(1)(F); Mora, 135 F.3d at 1355 ("Subsection (h)(1)(F) excludes all time, regardless of reasonableness, between the filing of the pretrial motion and the hearing thereon, as well as all time following the hearing during which the court awaits the filing of additional materials by the parties that are needed for proper disposition of the motion.") (citing Henderson v. United States, 476 U.S. 321, 326-31, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986)). Hearings on Mr. Lugo's motion were held on April 25, 1997, and on June 26, 1997, and the final supplemental brief requested by the district court was filed on August 12, 1997. Once the court receives all such materials, it has thirty days to decide...

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