U.S. v. Duque

• Decision Date: 07 August 1995
• Docket Number: No. 94-10259,94-10259
• Citation: 62 F.3d 1146
• Parties: 95 Cal. Daily Op. Serv. 6224, 95 Daily Journal D.A.R. 10,608 UNITED STATES of America, Plaintiff-Appellee, v. Carlos Antonio DUQUE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1146

62 F.3d 1146

95 Cal. Daily Op. Serv. 6224, 95 Daily Journal

D.A.R. 10,608

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Antonio DUQUE, Defendant-Appellant.

No. 94-10259.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 12, 1995.

Decided Aug. 7, 1995.

Sean Bruner, Bruner & Bowman, Tucson, AZ, for defendant-appellant.

Ann E. Mosher, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: CUMMINGS, ^* SCHROEDER and RYMER, Circuit Judges.

CUMMINGS, Circuit Judge:

After being arrested in Arizona, indicted in California and subsequently re-indicted in Arizona, Carlos Antonio Duque was tried and convicted of possession with intent to distribute cocaine and conspiracy to do the same, in violation of 21 U.S.C. Sec. 841(a)(1) and 21 U.S.C. Sec. 846. Duque was arrested while unloading cocaine from a truck that had been driven from Mexico to the United States at the behest of an individual working with federal drug agents.

Duque now appeals his conviction on numerous grounds, including the contention that the delay between his original California indictment and his eventual trial in the District of Arizona violated the Speedy Trial Act. We have jurisdiction, 28 U.S.C. Sec. 1291, and we affirm.

BACKGROUND

This case involves a large conspiracy to import substantial amounts of cocaine from Mexico to the United States. Government agents became aware of Duque's involvement in the conspiracy in the summer of 1992, and subsequently obtained a warrant to monitor his telephone calls. In the meantime, a confidential informant working under the supervision of federal agents set up a deal with members of the conspiracy to purchase cocaine. The deal transpired on August 20, 1992, when an individual hired by the informant drove a trailer containing concealed cocaine from Mexico into Arizona. Once the truck reached Arizona, other individuals drove it to a yard belonging to the informant.

The following day Duque arrived and, along with several others, began unloading the concealed cocaine into his truck. Surveilling agents, who were videotaping the events as they occurred, arrested Duque and, after reading him his Miranda rights in Spanish, asked the defendant if he was "of a mind to talk to [the agents]." Duque subsequently made several inculpatory statements.

Police had also obtained a search warrant for what they believed to be Duque's residence in Tucson. Pursuant to that warrant, in addition to searching the house, agents searched a motor home and a car found on the premises, and there recovered additional cocaine along with cash and drug packaging materials.

Duque and a number of alleged co-conspirators were indicted in Los Angeles on September 8, 1992, and Duque made his first represented appearance on that indictment on September 16, 1992. On December 21, 1992, after a number of preliminary motions had been ruled on, defense counsel for several of Duque's co-conspirators moved to transfer the entire case to the federal district court for the District of Arizona. Government prosecutors initially opposed the motion to transfer but eventually acceded. On February 3, 1993, with the consent of all the defendants including Duque, the California judge transferred the case to the District of Arizona. Instead of merely ordering the transfer, however, the district judge decided to dismiss the California indictment so that the government could re-indict the defendants in Arizona.

Duque was indicted in Arizona on February 3, 1993, the same date that the California district judge approved the transfer, and made his first represented appearance on March 29, 1993. The original California indictment was dismissed on November 5, 1993, and Duque went to trial in the District of Arizona on January 25, 1994.

During voir dire of the jury, Duque requested dismissal for cause of a panel member who expressed strong feelings against drug sellers. The district judge denied this request, and Duque exercised a peremptory strike to remove the panel member.

Duque was convicted and sentenced to life in prison, based on the district judge's base calculation of 42 with a two-point increase for obstruction of justice (an apparent attempt to orchestrate an escape), a three-point increase for his role in the offense, and a two-point decrease for acceptance of responsibility.

DISCUSSION

Of Duque's numerous claims on appeal, only one merits extended discussion.

I. Speedy Trial Act

Under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., a defendant must be brought to trial "within seventy days from the filing date ... of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. Sec. 3161(c)(1). The statute provides for numerous exclusions from the computation of the 70-day period, including, inter alia, time designated for transport of defendants and for the preparation and hearing of motions. These exclusions apply to all co-defendants in a case. United States v. Butz, 982 F.2d 1378, 1381 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 250, 126 L.Ed.2d 203 (1993).

The appellate court reviews for clear error a district court's findings concerning speedy trial violations. Id. at 1380. Questions of law concerning the application of the Act are reviewed de novo. United States v. Wickham, 30 F.3d 1252, 1253 (9th Cir.1994).

Duque argues that the Speedy Trial Act clock began ticking on the date he and his co-defendants made their initial California appearance and expired well in advance of his Arizona trial. He contends that because the California district judge did not dismiss the original indictment until November 5, 1993, well after the Arizona indictment had issued, the latter should be viewed as a superseding indictment which retains the original Speedy Trial Act clock. See United States v. Rojas-Contreras, 474 U.S. 231, 234, 106 S.Ct. 555, 557, 88 L.Ed.2d 537 (1985) (superseding indictment does not provide new period for trial preparation); United States v. Clymer, 25 F.3d 824, 827 n. 2 (9th Cir.1994) (when a superseding indictment contains charges which must be joined with the original charges, Speedy Trial Act calculations begin from the date of the original indictment); United States v. Karsseboom, 881 F.2d 604, 606-07 (9th Cir.1989) (where trial court dismisses some counts and defendant subsequently reindicted for same conduct, both retained counts and new indictment inherit original clock).

The fact that the California indictment survived for a time beyond the Arizona indictment does not automatically transform the latter into a superseding indictment. Although Duque attempts to pin both blame and nefarious motives for the second indictment on the government, the Arizona indictment resulted from a motion made by several of Duque's co-defendants and eventually acceded to by him. The California trial judge warned them prior to granting their motion for a change of venue, which the government initially opposed, that "If you go to Arizona, you may not go to trial for several weeks or months." The defendants continued to press their motion and eventually prevailed; the judge informed the defendants that "What is being proposed here in furtherance of your attorneys' request that this matter be transferred to Arizona is that the government is going to dismiss the charges here." Although the chronology of the various indictments and dismissals is somewhat confusing, it is clear that the Arizona indictment was intended chiefly to accommodate the defendants and not, like a superseding indictment, to clarify or remedy defects in the existing The Speedy Trial Act provides two textual guides to aid in the determination of how the time is to be calculated between indictment and re-indictment:

charge. Thus it is most properly viewed as a re-indictment, despite the fact that it preceded dismissal of the previous indictment by some months.

If any indictment or information is dismissed upon motion of the defendant, or any charge contained in a complaint filed against an individual is dismissed or otherwise dropped ... and thereafter ... an information or indictment is filed charging such defendant with the same offense or an offense based on the same conduct ... [the Speedy Trial Act clock starts fresh].

18 U.S.C. Sec. 3161(d)(1); see also United States v. McCown, 711 F.2d 1441, 1446 (9th Cir.1983) (when indictment is dismissed on defense motion, "any subsequent step toward prosecution causes the time period to begin running anew."). If the indictment is dismissed at the government's behest, on the other hand,

and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge [is tolled].

18 U.S.C. Sec. 3161(h)(1); see also United States v. Feldman, 788 F.2d 544, 548 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

The text of the statute, as well as Ninth Circuit case law, thus suggest that the identity of the author of the motion for dismissal is paramount in determining whether the clock should be restarted or merely tolled. See Feldman, 788 F.2d at 549 (noting that 18 U.S.C. Sec. 3161(d)(1) may apply "to any manner of dismissal of an indictment except on the government's own motion," and should apply where the defendant rather than the government benefits from the dismissal); see also McCown, 711 F.2d at 1446. Analysis of this particular case is complicated by the fact that neither the government nor the defendants bore clear responsibility for the reindictment. The defendants moved to transfer venue pursuant to ...