U.S. v. Magana-Olvera

• Decision Date: 23 October 1990
• Docket Number: D,No. 88-3280,MAGANA-OLVER,88-3280
• Citation: 917 F.2d 401
• Parties: 31 Fed. R. Evid. Serv. 703 UNITED STATES of America, Plaintiff-Appellee, v. Romanefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 401

917 F.2d 401

31 Fed. R. Evid. Serv. 703

UNITED STATES of America, Plaintiff-Appellee, v. Roman MAGANA-OLVERA, Defendant-Appellant.

No. 88-3280.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 10, 1990.

Decided Oct. 23, 1990.

Louis Daniel Fessler, Yakima, Wash., for defendant-appellant.

Donald E. Kresse, Jr., Asst. U.S. Atty., Yakima, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before WALLACE, HALL and WIGGINS, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Roman Magana-Olvera ("Magana") appeals his convictions resulting from a Drug Enforcement Agency ("DEA") undercover operation in Pasco, Washington. Magana claims that he was tried in violation of The Speedy Trial Act of 1974, 18 U.S.C. Secs. 3161-64 (1988). He further claims that the admission of certain hearsay statements at trial violated his sixth amendment right to confront his accusers. Finally, he claims that the district court improperly sentenced him. ¹ We affirm in part, reverse in part, and remand for resentencing.

I

A

As the drug epidemic in Washington has spread to the countryside, the DEA has turned to deputizing state and local police officers by forming regional "task forces." This is the story of an undercover operation conducted by the DEA Tri-City Task Force, which covers the cities of Richland, Pasco, and Kennewick. It all began when one Bobby Zimmerle, a paid informant to the Pasco Police Department, promised to introduce Valerie Mull (another paid informant) to his cousin Ricky Zimmerle, who allegedly dealt in drugs for a major cocaine supplier. Mull made several drug purchases from Ricky and won his trust. Confident that Mull would soon meet Ricky's supplier, the Tri-City Task Force stepped up its involvement.

James Faust, a narcotics officer of the Washington State Patrol and an agent of the DEA Yakima Task Force, received the call to accompany Mull on some drug buys. On the evening of November 3, 1987, Mull and Faust parked in a restaurant parking lot and waited for Ricky Zimmerle. A large surveillance unit was nearby. Ricky soon arrived in his white Pontiac Grand Am with cousin Bobby in the passenger seat. After agreeing to sell Faust two ounces of cocaine, Ricky drove off first to Magana's house, then to Magana's parents' house in the Navy Homes section of Pasco. An unidentified man got in the car at the latter residence. The surveillance unit did not see Magana that night, but Bobby Zimmerle later testified that Magana was the person who got into the Pontiac. Upon returning to the restaurant, Ricky got out of the car, sold Faust two ounces of cocaine for $2,000, and drove off.

On November 10, Ricky struck another deal with Faust in the same parking lot. Once again, Ricky drove off in his white Pontiac. Forty minutes later, the Pontiac returned with Bobby Zimmerle behind the wheel. Behind it, a 1976 white Ford Mustang with darkly tinted windows pulled into the parking lot. Ricky got out of the passenger side. Neither Faust, Mull, nor the officers in the surveillance unit could make out the driver of the Mustang. Evidence at the trial established that it was Magana. After negotiating further with Faust, Ricky consulted with Magana, who remained in the Mustang. He then told Faust to accompany him over to his Pontiac. Once inside the car, Faust purchased roughly four ounces of cocaine for $3,800.

On February 11, 1988, Faust visited Ricky at the Franklin County Jail, where Ricky awaited trial on state robbery charges. Faust's aim was to have Ricky identify his mysterious associate in the November 3 and 10 drug deals. Ricky implicated Magana and stated that his cousin Bobby had seen Magana with a gun on both nights.

Magana was indicted ("Magana I ") that very day for Conspiracy to Distribute Cocaine and Using a Firearm in Furtherance of a Drug Trafficking Crime in violation of 21 U.S.C. Sec. 846 and 18 U.S.C. Sec. 924(c), respectively.

Several days earlier, Valerie Mull had attempted to telephone Roman Magana at his parents' Navy Homes residence. Magana's fifteen-year-old brother Arnulfo answered the telephone. Arnulfo stated that he was taking care of Roman's business. Subsequently, he gave Mull a one-quarter gram sample of cocaine. Several days later, he sold her a so-called "eight-ball" (3.5 grams of cocaine).

Mull then arranged to buy another eight-ball from Arnulfo on February 22. Detective Henry Montelongo, a Pasco police officer and Tri-City Task Force agent, recorded the serial numbers on the $125 Mull used to make the purchase. At 9:40 that evening, Task Force Agent Robert Rose arrested Magana at his residence. A search of Magana's person produced the $125 in cash Mull had paid Arnulfo earlier that day. Twenty minutes later, the Task Force arrested Arnulfo and found roughly one ounce of cocaine on his person.

B

Magana was arraigned on February 26, 1988. On the day of trial, June 8, he moved to dismiss the Indictment for failure to bring him to trial within the 70-day period prescribed by the Speedy Trial Act. He also claimed that he had been in custody in excess of the Act's 90-day limit. The district court initially denied the motion. After a recess, the government asked the court to reconsider. The court then dismissed the case without prejudice. The government then requested that Magana remain in custody in light of a detainer which the immigration authorities had already placed upon him. The district court, finding that keeping Magana would not violate the 90-day confinement rule, declined to release him.

The very next morning, the government filed a second complaint ("Magana II ") which repeated the first two counts of Magana I and added Count Three, use of a juvenile to distribute drugs, in violation of 21 U.S.C. Sec. 845b(a)(1) and Count Four, violation of a deportation order. Count Three was based largely upon conversations informant Mull had had with Magana's 15-year-old brother, Arnulfo. Five days later, on June 14, 1988, the government returned a four-count indictment based upon its complaint.

On July 11, Magana unsuccessfully moved to dismiss Magana II for violation of the Speedy Trial Act. He also moved to sever Counts Three and Four. The district court agreed to sever Count Four. The trial began August 24, 1988. The jury convicted Magana on all three remaining counts August 26. He was sentenced October 17, 1988.

II

Magana first appeals the district court's denial of his motion to dismiss Magana II for violation of the Speedy Trial Act. Magana advances three arguments in support of his claim that the Speedy Trial Act 70-day trial clock should not have been reset after the district court dismissed Magana I. We consider them in turn.

We review the district court's application of the Speedy Trial Act de novo; we review its factual findings thereunder for clear error. United States v. Karsseboom, 881 F.2d 604, 606 (9th Cir.1989).

A

Magana first argues that the district court dismissed the indictment upon the government's motion and that therefore the clock was only tolled for the period between dismissal of Magana I on June 8, and his arraignment in Magana II on June 16. See 18 U.S.C. Sec. 3161(h)(6).

Analysis of this argument requires us to review the pertinent provisions of the Speedy Trial Act. Section 3161(c)(1) requires the defendant's trial to begin within 70 days of the filing of the indictment or the defendant's initial court appearance. ² Section 3162(a)(2) states that failure to try the defendant before the 70-day clock has expired requires dismissal of the indictment upon the defendant's request. However, that provision allows the district court to dismiss the indictment without prejudice upon consideration of several enumerated factors. ³

Section 3161(d) provides that when an indictment is dismissed on the defendant's motion, the subsequent return of a new indictment triggers a new 70-day time period. See Karsseboom, 881 F.2d at 606; United States v. Harris, 724 F.2d 1452, 1454 (9th Cir.1984); United States v. McCown, 711 F.2d 1441, 1446 (9th Cir.1983). The 70-day clock also starts anew if the district court dismissed the first indictment sua sponte. See United States v. Feldman, 788 F.2d 544, 549 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

However, if the first indictment is dismissed on the government's motion, the statutory time limit is merely suspended until a new indictment is returned; the 70-day clock is not reset. See 18 U.S.C. Sec. 3161(h)(6); Feldman, 788 F.2d at 548; McCown, 711 F.2d at 1446.

Thus the problem before us is one of characterization: at whose behest did the district court dismiss Magana I without prejudice? Naturally, Magana claims it was at the government's. He points out that the district court initially rejected his motion to dismiss, and only later dismissed without prejudice when the government asked it to reconsider. Magana therefore claims that under Harris, 724 F.2d at 1454, we must find that the district court dismissed the indictment on the government's motion.

We disagree. In Harris, the record was unclear upon whose motion the district court acted in dismissing the original complaint without prejudice. We then reasoned that because the defendant had moved for dismissal with prejudice, and the government had responded by asking for dismissal without prejudice, the district court had acted on the government's motion. Id.

Assuming arguendo that this part of Harris, is binding, ⁴ it is inapplicable to our case. In Harris we made the inference only because the record did not clearly indicate whose request the court granted. That is not the case here. Not only did the government point out that it was not joining Magana's motion, but the district court later stressed that it was granting "the defendant's motion, [which was] not initiated nor joined in by the Government." Because the record is...