U.S. v. Bracy
| Decision Date | 12 October 1995 |
| Docket Number | Nos. 93-10726,93-10782 and 94-10033,93-10727,s. 93-10726 |
| Citation | 67 F.3d 1421 |
| Parties | 43 Fed. R. Evid. Serv. 155, 95 Cal. Daily Op. Serv. 8022, 95 Daily Journal D.A.R. 13,764 UNITED STATES of America, Plaintiff-Appellee, v. Clayton Ross BRACY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Wayne HOGLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Perry GILMARTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Melvin GARFINKLE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward B. Horn, Reno, Nevada, for defendant-appellant Clayton Ross Bracy; Mary E. Boetsch, Sinai, Schroeder, Mooney & Boetsch, Reno, Nevada, for defendant-appellant David Wayne Hogle; Kenneth R. Howard, Reno, Nevada, for defendant-appellant Perry Joseph Gilmartin; Loren Graham, Zephyr Cove, Nevada, for defendant-appellant Richard Garfinkle.
Daniel G. Bogden, William M. Welch II, and L. Anthony White, Assistant United States Attorneys, Reno, Nevada, for plaintiff-appellee.
Appeals from the United States District Court for the District of Nevada.
Before: BRUNETTI, THOMPSON and HAWKINS, Circuit Judges.
On June 25, 1991, a federal grand jury returned an indictment charging the defendants herein, along with nine other individuals (the "Regas defendants"), with numerous counts of drug trafficking and related criminal activity. The grand jury subsequently returned four superseding indictments. All of the indictments were sealed by order of the district court. The four defendants here proceeded to trial on the fourth superseding indictment and were convicted on several of the indictment's twenty-nine counts. 1 They now appeal. This court has jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.
This case concerns a narcotics manufacturing and distribution organization headed up by Jay Jeffrey Regas that operated principally in Nevada, California, Oregon, and Washington. Defendants-Appellants Clayton Bracy, David Hogle, Perry Gilmartin, and Richard Garfinkle (aka "Bubba"), were charged as participants in the Regas conspiracy.
Garfinkle was involved in distributing methamphetamine and cocaine for the Regas organization as early as 1984 or 1985. He and Regas met with Paul Fleischer, who delivered them one or two pounds of methamphetamine. Garfinkle also travelled to San Diego to pick up the proceeds from an eight-pound methamphetamine deal. Garfinkle was also involved in the cocaine end of Regas's drug business; his role was to take care of those "dirty jobs" Regas did not want to do himself.
In 1986, Gilmartin and Hogle rented a home together on Marne Drive ("Marne Drive residence") in Reno. From there, the two roommates trafficked in small quantities of cocaine that they obtained from Rene Herrera and Wallace Wright. Additionally, Troy Regas (son of Jay) was a regular supplier of cocaine to Gilmartin and Hogle.
Herrera and Wright also began to distribute cocaine provided by Regas. Regas would "front" the cocaine, i.e. provide it to his dealers with understanding that he would be paid back out of sale proceeds. On at least one occasion, Herrera and Wright were unable to pay Regas for the cocaine fronted to
them and were thus left with a sizable drug debt owing to the Regases.
Regas was not apparently a patient creditor. Sometime after Herrera and Wright incurred this debt, Gilmartin and Hogle were sent to find Herrera and collect. After a two day search, on July 15, 1986, Herrera was located in a motel in the Sparks, Nevada area. Gilmartin and Hogle, now accompanied by Bracy, went to Herrera's room to pick him up. Gilmartin and Hogle went in Herrera's room and convinced him that he might want to take a ride. Herrera was then "escorted" from his room to a pickup truck in the parking lot, where Bracy, armed with a MAC-10 handgun, was waiting. Bracy held Herrera at gunpoint as the quartet drove back to the Marne Drive residence. During the ride, Herrera pleaded with Hogle to "work something out," to which Hogle replied, "it's too late, you will have to talk to Bubba and Troy."
Shortly after Gilmartin, Hogle, and Bracy took Herrera into the Marne Drive residence, Troy Regas and "Bubba" Garfinkle arrived. Garfinkle began to hit Herrera's face with his fists and open hands. Garfinkle and Gilmartin proceeded to beat Herrera with a large metal flashlight and a rifle stock. The beating stopped long enough for Herrera to make telephone calls in an attempt to obtain some money. While Herrera was making these calls, Garfinkle held a gun to Herrera's knees.
The telephone calls were to no avail for Herrera and Bracy began kicking Herrera in the back of the head. Gilmartin then shoved the barrel of a rifle in Herrera's mouth while Bracy said, "Let's just kill him now."
Herrera apparently had not been searched before his abduction and managed to pull a gun from his back pocket and point it at Garfinkle. The others in the room jumped on Herrera to disarm him, and during the struggle Herrera fired the gun several times. Concerned that the gunshots might attract unwanted attention, Bracy took Herrera to Bracy's house. At Bracy's, Troy Regas told Herrera that he must get the money "or next time the beating would be worse."
A week after the beating, Herrera participated in a drug deal with an undercover DEA agent, who then arrested Herrera. Immediately after his arrest, Herrera began cooperating with the police. Many of the statements Herrera made at that time were inconsistent with his subsequent grand jury and trial testimony.
The jury acquitted Bracy of fifteen of the sixteen counts against him, convicting him of use of a firearm during a crime of violence, 18 U.S.C. Sec. 924(c). He was sentenced to a five-year prison term.
Hogle was convicted on four counts, including violent crime in aid of racketeering, 18 U.S.C. Sec. 1952B(a)(1) (now Sec. 1959); use of a firearm during a crime of violence, 18 U.S.C. Sec. 924(c); possession with intent to distribute and distribution of cocaine, 21 U.S.C. Sec. 841(a)(1); and threatening a witness, 18 U.S.C. Sec. 1512(a)(1) & (3). He was found not guilty on twelve other counts. The court imposed a ten-year sentence on the violence in aid of racketeering count and a consecutive five-year term on the firearm count. On the possession with intent to distribute count and the witness threat count, the district court imposed ten and five year sentences, to run concurrent to the violence in aid of racketeering count.
Gilmartin was convicted on the same counts as was Hogle. He was also found guilty by the jury on two counts of possession with intent to distribute cocaine, but the district court granted Gilmartin's motion for acquittal on those counts. He received a thirteen year sentence on the violence in aid of racketeering count, with consecutive sentences of five and three years on firearm and witness threat counts. On the possession with intent count, the district court imposed a ten year sentence, to run concurrent with the sentence on racketeering count. He was found not guilty on twelve other counts.
The court granted Garfinkle's motion for acquittal on two unlawful firearm counts, but Garfinkle was convicted on fourteen of the remaining counts, including conspiracy to possess with intent to distribute and to distribute cocaine and methamphetamine, 21 U.S.C. Sec. 846; possession with intent to distribute and distribution of cocaine, 21 U.S.C. Sec. 841(a)(1); violent crime in aid of racketeering, 18 U.S.C. Sec. 1952B(a)(1) (now Sec. 1959); use of a firearm during a violent crime, 18 U.S.C. Sec. 924(c); interstate travel in aid of racketeering, 18 U.S.C. Sec. 1952(a)(3); possession with intent to distribute and distribution of methamphetamine, 21 U.S.C. Sec. 841(a)(1); use of a firearm during drug trafficking, 18 U.S.C. Sec. 924(c)(1); and maintenance of a place for manufacture, distribution and storage of controlled substances. Garfinkle was acquitted on a possession with intent to distribute count and a witness threat count.
The district court determined that the Sentencing Guidelines applied to Garfinkle's convictions, and sentenced him to 262 months on the conspiracy count, with consecutive sentences of 120 months, 60 months, and 120 months on the violence in aid of racketeering, firearm during a violent crime and firearm during drug trafficking counts. Concurrently running sentences of 120 months and 60 months were imposed on all other counts of which he stood convicted.
The denial of a motion to dismiss for impermissible pre-indictment delay is reviewed for abuse of discretion. United States v. Butz, 982 F.2d 1378, 1380 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 250, 126 L.Ed.2d 203 (1993); United States v. Sherlock, 962 F.2d 1349, 1354 (9th Cir.1989).
The crimes of which Bracy, Hogle and Gilmartin were convicted occurred between January and October, 1986. Garfinkle's convictions were for crimes taking place between July 1986, and January 1993. The original indictment was returned sealed in June 1991, shortly before the five-year statute of limitations for many of the charges had run. No warrants were issued, however, until the fourth superseding indictment was returned, on January 20, 1993, after the limitations period.
"Generally speaking, the return of an indictment tolls the statute of limitations with respect to the charges contained in the indictment." United States v. Pacheco, 912 F.2d 297, 305 (9th Cir.1990). See also United States v. Sears, Roebuck & Co., 785 F.2d 777, 778-79 (9th Cir.), ...
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