U.S. v. Garcia

• Citation: 995 F.2d 556
• Decision Date: 30 June 1993
• Docket Number: No. 92-5623,92-5623
• Parties: 37 Fed. R. Evid. Serv. 1206 UNITED STATES of America, Plaintiff-Appellee, v. Alejos GARCIA, Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 556

995 F.2d 556

37 Fed. R. Evid. Serv. 1206

UNITED STATES of America, Plaintiff-Appellee, v. Alejos GARCIA, Defendant-Appellant.

No. 92-5623

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 30, 1993.

Rogelio G. Rios, Jr., Laredo, TX (Court-appointed), for defendant-appellant.

Richard L. Durbin, Jr., Michael W. McCrum, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Alejos Garcia was charged with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846. After a jury trial, he was convicted and sentenced to a term of imprisonment of sixty-three months to be followed by a five-year term of supervised release. Garcia appeals his conviction. Finding no error, we affirm.

I.

In August 1990, Texas authorities in San Antonio began surveillance of Alejos Garcia and numerous other individuals who were suspected to be marijuana traffickers. In particular, the authorities observed various activities in and around a particular house in San Antonio. The authorities observed Alejos Garcia and another man, Carlos Garcia, ¹ go in and out of the residence. Appellant and Carlos Garcia were eventually approached by police officers at a location other than the residence. According to police, when questioned, appellant appeared quite nervous and told numerous falsehoods regarding his prior activities. Appellant consented to a search of his automobile. Police found traces of marijuana scattered all over the trunk of the car. Appellant was at that point arrested. Police also recovered a pager and $1,000 in cash from his person.

The police then transported appellant and Carlos Garcia to a location where surveillance officers had observed the two men park a truck. Carlos Garcia admitted that the truck belonged to him. A search revealed that marijuana and wood chips were scattered in the truck. Police then searched the aforementioned residence. There police discovered a number of large wooden crates containing wood chips similar to the type found in Carlos Garcia's truck. One of those crates contained several bundles of marijuana wrapped in plastic. Other bundles were located throughout the house. A total of 250 pounds of marijuana was seized by police.

At trial, the owner of the house, Norma Satterlund, testified that Matilde Benavides, one of Garcia's co-conspirators, had approached Satterlund and offered to pay her if she would permit Benavides to store marijuana at her house. On several occasions, Satterlund testified, Benavides and other men would bring crates of marijuana to be stored at her house. According to Satterlund, the men would employ a legitimate packing company to ship the crates to San Antonio, but would use fictitious names on the shipping documents. ² Satterlund testified that she observed Alejos Garcia at her house on several occasions and that, in particular, Garcia was present during conversations about marijuana.

II.

A. Speedy Trial Claims

A grand jury in San Antonio, Texas, indicted Garcia and his co-defendants on November 28, 1990, for conspiring to possess marijuana with the intent to distribute. ³ Garcia was not arrested until almost a year later, on November 20, 1991. On December 17, 1991, Garcia waived his right to personally appear at his arraignment. His trial was scheduled to occur on April 6, 1992. On April 3, 1992, Garcia moved to dismiss the indictment on the ground that he was denied a speedy trial. The district court denied this motion. Almost seventeen months later, on April 13, 1992, Garcia's trial began. Garcia argues that the district court erred in not dismissing the indictment on the ground that the Government denied Garcia his right to a speedy trial under Rule 48(b) of the Federal Rules of Criminal Procedure, ⁴ the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), ⁵ and the Sixth Amendment to the United States Constitution. ⁶

i) § 3161(c)(1)

The Government, in its response to Garcia's motion to dismiss the indictment, conceded that sixty-nine days had passed between the date of Garcia's non-appearance at his arraignment, ⁷ December 19, 1991, and the proposed date of trial, April 6, 1992. Garcia argues that the time between his arrest on November 20, 1991, and the arraignment on December 19, 1991, should be also counted in calculating whether § 3161(c)(1)'s seventy-day period was exceeded by the Government. We disagree. When an indictment precedes an arrest--as occurred in Garcia's case--the first appearance before a judicial officer of the court in which the indictment has been filed is the triggering event. See 18 U.S.C. § 3161(c)(1). In this case, therefore, the time between Garcia's arrest and his non-appearance at the arraignment should be excluded in computing the seventy-day period.

Although the trial was scheduled to occur on April 6, 1991, the district court granted the Government a one-week continuance, which tolled § 3161(c)(1)'s seventy-day clock during the period of the continuance. According to Garcia, the continuance was unjustified and, thus, wrongly extended § 3161(c)(1)'s time-period beyond seventy days. The Government appeared at docket call on Friday, April 3, 1992, and announced ready for trial to commence the following Monday. On April 6, however, the Government announced to the district court that it had discovered over the weekend that an essential witness was unavailable to testify. The Government requested a continuance to secure the presence of the witness. An evidentiary hearing was held on the Government's motion, and the district court granted a one-week continuance of the trial.

Any period of delay resulting from the absence or unavailability of an "essential witness" is excluded in computing the seventy-day period. 18 U.S.C. § 3161(h)(3)(A). An essential witness shall be considered absent "when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence." 18 U.S.C. § 3161(h)(3)(B). Ralph Sramek, the law enforcement officer who had been in charge of securing the Government's witnesses, testified that his procedure for communicating with Norma Satterlund had been by leaving a phone message at her residence with a relative and then receiving a return call from Satterlund. Prior to April 3, 1992, Sramek had not experienced any difficulty in having Satterlund return his calls. During the week prior to April 3, Sramek spoke with Satterlund on three separate days. On Thursday, April 2, Sramek made arrangements with Satterlund to meet on the following day, Friday, April 3, in San Antonio, Texas.

During their April 2 conversation, Satterlund informed Sramek that she had been continuously receiving a great deal of pressure not to cooperate with the Government following her testimony at the trial of Matilde Benavides, a coconspirator. According to Sramek, Satterlund claimed that her house had been "shot up" with a firearm and that her car had been set on fire. She nevertheless told Sramek that she would appear on April 3 in San Antonio to testify at Garcia's trial. After Satterlund failed to appear at the appointment scheduled for the afternoon of April 3, Sramek attempted to contact her on Friday, Saturday, and Sunday, but Satterlund never returned the calls.

In granting the Government's motion to continue the trial for one week, the district court explicitly found that Satterlund was unavailable and impliedly found that she was an "essential witness" for purposes of the Speedy Trial Act. We believe that the district court did not abuse its discretion in granting the Government's motion for a continuance. Accordingly, there was no violation of the Speedy Trial Act because the trial took place within the seventy-day period.

ii) The Sixth Amendment

Garcia further argues that the district court erred in denying his motion to dismiss the indictment because, as he alleges, he was denied a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. The Sixth-Amendment right to a speedy trial attaches at the time of arrest or indictment, whichever comes first, and continues until the date of trial. United States v. Walters, 591 F.2d 1195, 1200 (5th Cir.), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979). Constitutional speedy-trial claims are resolved by examining the following four factors: (i) the length of the delay; (ii) the reason for the delay; (iii) when the defendant asserted his right; and (iv) the prejudice to the defendant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). In assessing prejudice, a court should look to the following three policies behind the Sixth Amendment's guarantee of a speedy trial: (i) preventing oppressive pretrial incarceration; (ii) minimizing a defendant's anxiety and concern; and (iii) assuring that a delay does not impair the defense. See Millard v. Lynaugh, 810 F.2d 1403, 1406 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987).

The first Barker factor--whether the delay is of sufficient length to be deemed "presumptively prejudicial," id. at 1406--is a threshold consideration. In this case, the delay from the time of the first formal federal charge, November 20, 1990, to the date of trial, April 13, 1992, was almost seventeen months. This court has ruled that a thirteen-month delay between indictment and trial is "presumptively prejudicial." See Davis v. Puckett, 857 F.2d 1035, 1040-41 (5th Cir.1988). Accordingly, the delay in this case was also "presumptively prejudicial."

Therefore, we turn to the other Barker factors: the reason for the delay, the point at which the defendant asserted his rights, and the prejudice (if any) to the defendant resulting from the...