U.S. v. Casas

Decision Date07 October 2005
Docket NumberNo. 02-1677.,No. 02-1716.,No. 02-1996.,No. 02-1997.,No. 02-2124.,No. 02-1717.,No. 02-1708.,02-1677.,02-1717.,02-1708.,02-1716.,02-1996.,02-1997.,02-2124.
PartiesUNITED STATES of America, Appellee, v. Angel CASAS, Defendant, Appellant. United States of America, Appellee, v. Jose Bonilla-Lugo, Defendant, Appellant. United States of America, Appellee, v. John Correy, a/k/a Earth, Defendant, Appellant. United States of America, Appellee, v. Angel Luis Pizarro-Morales, a/k/a Wee, Defendant, Appellant. United States of America, Appellee, v. Ramon Flores-Plaza, Defendant, Appellant. United States of America, Appellee, v. Raymond Nicolai-Cabassa, a/k/a Ray, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Luis M. Cháves-Ghigliotty, for appellant Angel Casas.

Terrance J. McCarthy, for appellant José Bonilla-Lugo.

Donna R. Newman, for appellant John Correy.

Mauricio Hernández-Arroyo, for appellant Angel Luis Pizarro-Morales.

Rodney S. Dowell, with whom Berman & Dowell, was on brief, for appellant Ramón Flores-Plaza.

Linda George, for appellant Raymond Nicolai-Cabassa.

Miguel A. Fernández, with whom Lisa Snell-Rivera, Assistant United States Attorneys, and H.S. García, United States Attorney, were on brief, for appellee.

Before TORRUELLA, LYNCH and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellants were convicted of conspiracy to possess with intent to distribute approximately 1400 grams of heroin and 9445 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. They now challenge their convictions and their sentences. We affirm their convictions but vacate their sentences and remand for re-sentencing.

I. Background

On May 21, 1994, Special Agents Jay Stoothoff ("Agent Stoothoff") of the Drug Enforcement Administration ("DEA") and Richard Escalera of the Immigration and Naturalization Service were conducting surveillance at the Luis Muñoz Marín International Airport in Carolina, Puerto Rico. They saw two vehicles, a Pontiac TransAm carrying four people and an Isuzu Trooper carrying two people, pull up to the departure area together. After observing suspicious interactions between certain passengers of the vehicles and American Airlines employees, the agents approached the vehicles and identified themselves as police officers. One of the individuals fled on foot, while two individuals sped away in the TransAm. The Trooper was left with the doors open and engine running, and the agents detained the other three individuals. The agents secured four suitcases from the scene. These suitcases were found to contain eighty-one kilograms of cocaine. One of the detained individuals, Héctor Martínez-Medina ("Martínez-Medina"), accompanied the agents to a house where all six individuals met prior to going to the airport. The house belonged to the father of Israel Pérez-Delgado ("Pérez"). The Isuzu Trooper was registered to Pérez.1

This series of events eventually led to the exposure of the drug conspiracy that gave rise to this case. On August 8, 1996, the grand jury returned a six-count superseding indictment against sixty defendants, including appellants. Count One of the indictment charged all the defendants with conspiracy to possess with intent to distribute approximately 1400 grams of heroin and 9445 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. Count Two charged appellant Angel Luis Pizarro ("Pizarro") and various co-defendants not part of this appeal with possession with intent to distribute approximately eighty-one kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Three did not charge any of the appellants. Count Four charged appellants John Correy ("Correy") and Raymond Nicolai-Cabassa ("Nicolai"), as well as co-defendant Thomas Martínez ("Martínez"), who is not part of this appeal, with possession with intent to distribute approximately thirty-six kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Counts Five and Six charged Correy and Nicolai with the intentional killings of José Miguel Blanco-Rodríguez ("Blanco") and Ramón de Jesús-Molina ("de Jesús").

United States District Judge Carmen Consuelo Vargas de Cerezo presided over a jury trial for ten of the co-defendants, including appellants, in the United States District Court for the District of Puerto Rico. Trial began on May 12, 1999 and lasted approximately seven months. The jury convicted all of the appellants of Count One, convicted Pizarro of Count Two, acquitted Correy of Count Four, and acquitted Correy and Nicolai of Counts Five and Six.

On April 17, 2002, pursuant to an order of the First Circuit Judicial Council, the case was reassigned to the Honorable Héctor M. Laffitte for sentencing. Judge Laffitte sentenced the appellants on various dates between May 7, 2002 and July 18, 2002. Appellants have timely appealed both their convictions and their sentences to this court.

II. Discussion

Appellants challenge their convictions and sentences on numerous grounds. We address each of these grounds in turn.2

A. Conviction
1. Delay

Appellants Correy, Pizarro, and Nicolai argue that their convictions should be reversed and the indictments against them dismissed because the delay between their indictment and trial violated their rights under the Speedy Trial Act ("STA"), 18 U.S.C. § 3161, and the Sixth Amendment of the Constitution. Appellants were originally indicted on December 13, 1995, and a superseding indictment was filed on August 8, 1996. Trial commenced on May 12, 1999, approximately forty-one months after appellants were indicted.

a. Speedy Trial Act

We review decisions on issues of fact relevant to the STA for clear error and review questions of law de novo. United States v. Maxwell, 351 F.3d 35, 37 (1st Cir.2003). The STA requires that trial commence within seventy days of the filing of an indictment, or the first appearance of the defendant in court, whichever is later. 18 U.S.C. § 3161(c)(1). Periods of delay arising from the causes outlined at 18 U.S.C. § 3161(h)(1)-(9) are excluded from the calculation. Included in these periods of delay are those "resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Id. § 3161(h)(1)(F). If trial does not commence by the end of seventy days plus the excluded periods, the "indictment shall be dismissed on motion of the defendant." Id. § 3162(a)(2). Nicolai moved to dismiss on the basis of an STA violation on March 3, 1998, and Pizarro claims to have joined the motion.3 Correy filed a pro se motion to dismiss for delay on July 22, 1998 and moved to dismiss for lack of prosecution and violation of the Sixth Amendment on April 30, 1999. Although Correy's motions never mentioned the STA by name, we will assume, as did the prosecution and district court, that his motions were sufficient for purposes of § 3162(a)(2). Our review of the district court's refusal to dismiss the indictment turns on whether delays resulting from the pendency of motions filed by appellants and their co-defendants are excluded from the seventy-day limit.

Appellants each claim that the STA clock began running on their respective dates of first appearance, and that the seventy-day deadline was far exceeded. However, among the periods excluded from the STA limit are "reasonable period[s] of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." Id. § 3161(h)(7). The Supreme Court has interpreted this section to mean that the clock does not, in effect, begin to run until the date of the most recent defendant's initial appearance before the court. See Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) (finding that STA clock begins on the date of last co-defendant's arraignment because "[a]ll defendants who are joined for trial generally fall within the speedy trial computation of the latest codefendant") (citing 18 U.S.C. § 3161(h)(7)); United States v. Barnes, 251 F.3d 251, 257-59 (1st Cir.2001) (applying Henderson to find that district court properly reset STA clock on date superseding indictment was filed to add a new defendant); see also United States v. Maxwell, 351 F.3d 35, 38 (1st Cir.2003) (applying Barnes to find that period between appellant's arraignment and co-defendant's later arraignment is excluded from STA calculation). Appellants were among ten defendants severed for trial from the remaining fifty who were charged in the superseding indictment. The last of these ten to appear before the court was Nicolai, on November 6, 1996. Accordingly, the STA clock started no earlier than that date, 917 days before trial.4

Our precedent makes clear that "any defendant's motion resulting in excludable time toll[s] the STA clock for his codefendants." United States v. Santiago-Becerril, 130 F.3d 11, 19 (1st Cir.1997) (collecting cases). Accordingly, the government argues that delays during the pendency of motions filed by appellants' co-defendants must be excluded from the STA calculation. See 18 U.S.C. § 3161(h)(1)(F), (h)(7). The government argues that once the delays during the pendency of motions filed by appellants' co-defendants are counted, fewer than seventy non-excludable days accrued. Unfortunately, the government neglected to provide this court with the dates or length of any delays so occasioned during the more than two-year interval between Nicolai's initial appearance and trial.5

This case began with sixty co-defendants, a number that was cut down to ten by the time of trial. The co-defendants filed numerous motions, and there were also many hearings and appearances before the district court prior to trial. After carefully examining the record, we have...

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