U.S. v. Ibarra
| Decision Date | 31 October 1994 |
| Docket Number | No. 93-3810,93-3810 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Narciso IBARRA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: KENNEDY and JONES, Circuit Judges; and DEMASCIO, * District Judge.
A jury convicted defendant, Narciso Ibarra, on one count of conspiracy to possess and distribute marijuana, in violation of 21 U.S.C. Sec. 846, and on three counts of unlawful use of a communication facility, in violation of 21 U.S.C. Sec. 843(b). Defendant appeals his conviction, raising three assignments of error: whether sufficient evidence exists to support his conviction, whether the District Court erred in denying his motion for a continuance, and whether the District Court erred in refusing to issue subpoenas for five witnesses. We affirm.
In 1989, the Toledo Metro Drug Task Force began investigating a drug trafficking ring that was locally controlled by Leo Casares. This ring imported marijuana from Texas and Mexico to Ohio and then distributed it throughout northwest Ohio. As part of its investigation, the Task Force obtained permission to place a wiretap on Casares' home phone from January 7, 1991 through March 6, 1991.
The wiretap intercepted over 2700 calls, and defendant was the fifth most frequently called person during the duration of the wiretap. On several occasions, defendant told Casares that he was coming to Casares' house to get "more paint" or that he was travelling to other locations to obtain "paint." William Glynn, a co-conspirator who cooperated with the government, testified that "paint" was a code word for marijuana.
Glynn also testified that on one occasion, he and several other people, including defendant, were at Danny Jaso's house waiting for Bill Cramer to depart for Texas to pick up a load of marijuana. Glynn testified that all the people present on that occasion worked for Leo Casares' drug ring in some capacity. Cramer's primary role was to act as Casares' driver and gopher, handling the pickups and deliveries of drugs and cash. After Casares became suspicious of Cramer, he moved defendant into Cramer's role.
On November 30, 1990, Casares' wife transferred $1550 to defendant through Western Union. Defendant signed for the transfer at one of Western Union's offices in south Texas. The Western Union office was located near one of the source cities for marijuana used by the Casares organization.
Gary Krupinski, another co-conspirator who cooperated with the government, testified as to another occasion when people from the Casares organization gathered at Jaso's house. This time, they gathered to receive a load of marijuana that had just arrived from Texas. Krupinski testified that Casares told him defendant had transported the load. Krupinski also stated that he personally saw defendant at Jaso's house on this occasion. Finally, Krupinski also testified that Casares told him that defendant delivered drugs and picked up cash payments for Casares.
On November 7, 1991, a grand jury issued a multi-count, multi-defendant indictment concerning the Casares drug organization. Count one of that indictment charged defendant, along with the other members of the organization, with conspiracy to possess marijuana with the intent to distribute, a violation of 21 U.S.C. Sec. 841. Counts eight, ten, and eighteen charged defendant with unlawful use of a communication facility, specifically a telephone, in violation of 21 U.S.C. Sec. 843(b).
The trial of defendant and several of his co-conspirators began September 2, 1992. After several weeks of trial, the jury began deliberating on October 22, 1992. On October 28, 1992, the jury reported that it could not reach a verdict regarding defendant on any of the four counts. Defendant's second trial began April 20, 1993, after which a jury found him guilty on all counts. Defendant now appeals his conviction.
Defendant argues that the prosecution did not present sufficient proof to support his conviction. With respect to the conspiracy charge, he contends that the only direct evidence provided at trial came from the testimony of two co-conspirators who cooperated with the government. According to defendant, this cooperation casts doubt on Glynn's and Krupinski's credibility. Defendant also notes that a search of his residence found no drugs or other indicia of drug trafficking.
As the above discussion of the facts makes clear, the testimony of Glynn and Krupinski, when coupled with the tape recordings of the wiretapped conversations, constitutes sufficient evidence to support Defendant's section 846 conviction. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Christian, 786 F.2d 203, 211 (6th Cir.1986). Glynn and Krupinski's credibility is a matter for the jury, which obviously found against defendant on this issue.
As for the three section 843(b) counts, the telephone conversations intercepted through the wiretap clearly fulfill the requirements for unlawful use of a communication facility. See 21 U.S.C. Sec. 843(b).
The jury in defendant's first trial was unable to reach a verdict as to him, although it convicted other co-conspirators. Defendant's second trial was originally scheduled for March 16, 1993. On March 10, however, the District Court granted defense counsel's motion to withdraw and appointed new counsel for defendant. In conjunction with this ruling, the District Court also vacated the March 16 trial date. The trial was later rescheduled for April 20, 1993.
Before voir dire began on April 20, the District Court heard argument on several motions filed by defendant. One of these was a motion for a second continuance. Defendant's attorney informed the court that the continuance was necessary to permit him to locate and interview several possible character witnesses. No explanation was given for why these witnesses were not interviewed earlier, except that one had proven difficult to locate and defendant had provided his attorney with the three other names only that morning.
The court denied the motion, stating that trial was scheduled to last approximately a week, which would give defense counsel ample time to locate and interview these witnesses during the late afternoon and evening hours. The District Court also noted that the case had already been tried once, that potential jurors were at the courthouse waiting for voir dire, and that ample time had been allowed for preparation.
In the final pre-trial motion, defense counsel, Sam Eidy, requested permission to withdraw. Eidy informed the court that he was ready to proceed, but that defendant had no confidence in his ability to provide adequate representation. Defendant had the same problem with Eidy that he had with his two prior attorneys: all three encouraged him to accept the plea bargain offered by the government.
The court informed defendant that it would not appoint him a fourth attorney, as all three of his attorneys had been competent. Faced with this decision, defendant requested that he be allowed to represent himself. After discussions with defendant, Eidy, and the prosecuting attorney, the District Court granted defendant's request, although it did appoint Eidy to be stand-by counsel. On appeal, defendant now argues that the...
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