U.S. v. Correa-Ventura, CORREA-VENTUR

• Citation: 6 F.3d 1070
• Decision Date: 01 November 1993
• Docket Number: No. 92-8632,D,CORREA-VENTUR,92-8632
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armandoefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1070

6 F.3d 1070

UNITED STATES of America, Plaintiff-Appellee, v. Armando CORREA-VENTURA, Defendant-Appellant.

No. 92-8632.

United States Court of Appeals, Fifth Circuit.

Nov. 1, 1993.

David L. Botsford, Hoeffner & Botsford, Austin, TX, for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., James H. DeAtley, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

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

Before KING and BARKSDALE, Circuit Judges, and DUPLANTIER ^*, District Judge:

KING, Circuit Judge:

Armando Correa-Ventura ("Correa") was convicted in the court below of several drug-related crimes, including the use of a firearm in the commission of a drug trafficking offense. He was sentenced to a term of imprisonment of ninety months, a fine of $6,000.00, supervised release for five years, and the mandatory special assessment of $150.00. Correa appeals all of the convictions on several related theories. Finding no error, we affirm.

I. Background of the Case.

As a result of information received from a confidential informant, the Austin Police Department obtained and executed a search warrant on Correa's home at approximately 9:00 p.m. on October 21, 1991. ¹ Soon after entering the residence, the officers secured Correa in a bedroom which he identified as being the one he shared with his wife. With the assistance of a bilingual police officer, Correa cooperated in pointing out the drugs and weapons in his home. In Correa's bedroom, the officers located approximately four ounces of cocaine, wrapped in a red towel, scales, and a Cobray M-11 9mm semiautomatic pistol under the bed. The cocaine and pistol were approximately four to six feet apart, and the gun was not loaded. The officers found nearly $900.00 in currency and a Browning 9mm pistol in a dresser drawer adjacent to the bed. Finally, the police discovered a Taurus .380 pistol in a boot next to a pair of men's pants with $410.00 in currency in one of the pockets. Both the Browning and the Taurus were loaded.

The officers also went into another bedroom occupied by Correa's daughter and son-in-law in which they discovered more cocaine and a .12 gauge Winchester short-barreled shotgun. Correa then directed the police to his garage/storage room where he pointed out two suitcases, one of which held more than five pounds of marijuana, and the other contained marijuana residue.

The search also yielded two long-range rifles in the living-room fireplace, two more shotguns in a rack on the living-room wall, a Spanish Fork .22 calibre rifle in the dining room, and a Marlin .22 calibre rifle behind the seat of a pickup truck located in the driveway. ² In all, the officers located approximately 140 grams of cocaine, 5.2 pounds of marijuana, ten firearms, and $1200.00 in currency throughout the Correa residence.

After being advised of his Miranda ³ rights, Correa orally assumed total responsibility for the drugs found in his bedroom and the garage area. He admitted that he had started selling drugs about four months before the search and that he had procured these drugs for resale. He also acknowledged ownership of the guns, but claimed they were for hunting and for protection of his automotive shop.

The next day, after having received another Miranda warning, Correa gave a written statement to the Austin police in which he reiterated his responsibility for the drugs and ownership of the weapons. However, Correa maintained that the guns were for hunting, protection, and collection purposes, and claimed that one was purchased for a police officer in Mexico.

The Austin Police reported the results of the search and Correa's corresponding statements to Drug Enforcement Agency ("DEA") authorities who obtained a grand jury indictment against Correa for possession with intent to distribute cocaine and marijuana, both in violation of 21 U.S.C. Sec. 841(a)(1), and for the use or carrying of a firearm in connection with these drug trafficking offenses in violation of 18 U.S.C. Sec. 924(c) ("Section 924(c)"). Correa was arrested on November 13, 1991, by DEA officers and was taken back to the Austin Police Department Repeat Offenders Program Unit Headquarters ⁴ for questioning. ⁵ Correa again conceded that he had obtained the drugs found in the October 21 search for distribution. He claimed that he acquired the cocaine from an individual named Oscar Garcia and from a man he knew as "Jesse."

At his November 27, 1991, arraignment, Correa pled "not guilty" to all three counts of the indictment. ⁶ Count Three of the indictment charged Correa with using or carrying "a " firearm in connection with the drug trafficking crimes charged in Counts One and Two. Correa filed a motion to dismiss Count Three based upon (1) the failure to allege that he "knowingly" employed a firearm and (2) his perception that the government's failure to identify a particular weapon rendered the indictment fatally defective. In response, the government filed a superseding indictment on July 16, 1992, adding an allegation that Correa "knowingly" used or carried a firearm in connection with the drug charges, and filed a Bill of Particulars listing all ten of the guns recovered as possible weapons which "the government may introduce at trial to prove [Correa's] use of a firearm."

During the trial, the government placed in evidence all ten of the weapons seized from Correa's home and identified in the government's Bill of Particulars. The government did not identify to the jury any one of these as being the specific firearm charged in Count Three, but rather elicited testimony as to the location and condition of each of these guns, specifically demonstrating that at least four of the guns were located in close proximity either to narcotics or to admitted proceeds from drug dealing. ⁷

The jury convicted Correa of all three counts after twelve minutes of deliberation. The district court sentenced him to thirty months imprisonment for each of the possession offenses charged in Counts One and Two with the sentences to run concurrently. With respect to the firearm offense, the court sentenced Correa to sixty months of imprisonment to run consecutively to the other sentences in accordance with the mandatory penalty provisions of Section 924(c). The district court additionally imposed a $6,000 fine and a five-year term of supervised release after the prison term was completed.

II. Failure to Rearraign

In his first point of error, Correa argues that the superseding indictment, issued eleven days before trial, required rearraignment. Although this indictment was virtually identical to the original--except that it added "knowledge" to the elements of the firearm violation alleged in Count Three--Correa argues that he was entitled to another arraignment and that the district court's failure to hold one requires reversal.

An arraignment is required so that a defendant may be informed of the substance of the charges against him and given an opportunity to plead to them. FED.R.CRIM.P. 10. The interests at issue are the defendant's right to know of the charges made and the right to have adequate information from which to prepare a defense. United States v. Rogers, 469 F.2d 1317, 1318 (5th Cir.1972). These rights may be prejudiced by the lack of formal charge and entry of a plea until the beginning of the trial proceedings. Id. However, a conviction will not be vacated for lack of formal arraignment proceedings unless possible prejudice is shown. United States v. Grote, 632 F.2d 387, 389 (5th Cir.1980), cert. denied, 454 U.S. 819, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981). ⁸

As noted above, the record indicates that approximately two months prior to trial, Correa filed a motion to dismiss the firearm count for failure to include the required element of "knowingly" in the indictment. Eleven days before trial, the government responded to this motion by filing a superseding indictment to correct the omission. Correa was not rearraigned on the superseding indictment.

Correa argues that the lack of arraignment on the superseding indictment prejudiced his defense by forcing him to trial on the possession charges as well as on the firearm offense. He claims in his brief that he never intended to contest his guilt to the possession charges and that he was prejudiced in the eyes of the jury when he admitted his guilt to those charges at trial. However, at his prior arraignment, Correa pled "not guilty" to all three counts of the indictment. The superseding indictment did not modify the possession charges.

Moreover, there is no evidence in the record that Correa subsequently desired to plead guilty on any of these counts. The trial took place over eight months after the arraignment, and Correa never indicated any wish to plead guilty on the possession offenses. In fact, the Amended Scheduling Order entered by the lower court on June 1, 1992, made clear that Correa could have changed his mind--and that the court would accept plea agreements--up to and including July 23, 1992, four days before trial. There is no evidence in the record that Correa attempted to invoke this provision or otherwise to enter a guilty plea in the proceedings. Consequently, Correa has not demonstrated that he was prejudiced by the lack of formal arraignment proceedings. SeeRogers, 469 F.2d at 1318. Correa's first point of error is thus overruled.

III. Motions For Continuance

Correa next argues that the trial court erred in failing to grant his motions for continuance made after the filing of the superseding indictment and after the late disclosure of allegedly withheld discovery materials. We note that trial judges have broad discretion in deciding whether to grant continuances. United States v. Gentry, 839 F.2d 1065, 1073 (5th Cir.1988). To prevail upon appeal, Correa must therefore demonstrate an abuse of discretion resulting in serious prejudice. United States v. Kelly, 973 F.2d 1145,...