U.S. v. Gomez, No. 94-4049

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before ANDERSON, McKAY and BRORBY; STEPHEN H. ANDERSON; McKAY
• Citation: 67 F.3d 1515
• Parties: 43 Fed. R. Evid. Serv. 140 UNITED STATES of America, Plaintiff-Appellee, v. Lupe GOMEZ, Defendant-Appellant.
• Docket Number: No. 94-4049
• Decision Date: 10 October 1995

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67 F.3d 1515 43 Fed. R. Evid. Serv. 140 UNITED STATES of America, Plaintiff-Appellee,
v.
Lupe GOMEZ, Defendant-Appellant. No. 94-4049. United States Court of Appeals,
Tenth Circuit. Oct. 10, 1995.

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Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public

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Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

Gregory C. Diamond, Assistant United States Attorney (Scott M. Matheson, Jr., United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff-Appellee.

Before ANDERSON, McKAY and BRORBY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Lupe Gomez appeals his conviction for distribution of cocaine, see 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, raising five issues. Mr. Gomez claims that (1) he was denied his right to a speedy trial under the Speedy Trial Act and the Sixth Amendment; (2) the district court improperly admitted evidence obtained in the course of a court-ordered wiretap; (3) the district court erred in admitting the testimony of a government interpreter who had assisted in the transcription of the audiotapes obtained during the wiretap; (4) the district court erred in allowing the government to use transcripts of the tape-recorded conversations during its case in chief; and (5) the district court impermissibly answered questions from the jury when the defendant and defense counsel were not present. ¹ We address each of these issues in turn and, for the reasons set forth below, affirm the conviction.

BACKGROUND

In early 1992, the Weber-Morgan Narcotics Strike Force began an investigation of Rogelio "Roy" Salinas, who was suspected of trafficking in marijuana. This investigation involved a number of law enforcement agencies in and around the Ogden, Utah, area. As part of the investigation, an undercover officer, Weber County Sheriff's Deputy Douglas Coleman, began negotiating the purchase of a large quantity of marijuana from Salinas. Additionally, pursuant to Utah Code Ann. Sec. 77-23a-10 (1990), the strike force obtained authorization for a wiretap on the telephone of the home where Salinas was living at the time.

As the investigation progressed, the focus shifted away from marijuana and toward Salinas' activities involving cocaine. Information gleaned pursuant to the wiretap revealed that Salinas had a source for cocaine in Ogden, known as "Bird" or "Bert" or "Burt." ²

On February 24, 1992, Salinas called a pager number and was called shortly thereafter by a male who was identified at trial as "Bird." Bird reported to Salinas that he was calling from Layton, Utah, that he was on his way, and that he had "it." R.Supp. Vol. X, Ex. 4. Salinas shortly thereafter paged Deputy Coleman, indicating that his source would be there soon, and the two arranged for the drug transaction to take place at a convenience store in Ogden.

Surveillance officers observed an individual, later identified as Mr. Gomez, approach Salinas's home, speak with Salinas as the two leaned over the bed of a pickup truck, and depart shortly thereafter. An officer conducting surveillance at the time testified that it appeared to be a delivery of cocaine. R.Vol. III at 82. ³

Salinas then made a series of telephone calls to the undercover agent, Deputy Coleman, and drove to the prearranged location for the delivery. ⁴ When Salinas verified that Deputy Coleman was at the prearranged location, he returned to his house, reached into

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the back of the pickup at the point where he previously had been speaking with Mr. Gomez, and retrieved something. R.Vol. III at 39. Salinas returned to the delivery location with a kilogram of cocaine at which point he was arrested. Approximately ten minutes later, Mr. Gomez again drove past the Salinas residence at which point officers gave pursuit and arrested him. ⁵

Mr. Gomez was charged in a federal complaint on March 11, 1992, and he was brought before a magistrate judge on March 19, 1992. A federal information was filed on March 30, a federal indictment charging him with distribution of cocaine was returned on April 4, and he was arraigned on April 17, 1992.

Following a number of continuances, Mr. Gomez was tried April 5-6, 1993, and convicted. He moved for a new trial on the basis that the wiretap evidence came to light only "a few days before trial." R.Vol. I, Docs. 56, 57. The government joined Mr. Gomez in a stipulation for a new trial. The stipulation specifically stated that "a new trial should be granted in order to allow the defense sufficient time to review the evidence and documentation regarding the wiretap." R.Vol. I, Doc. 60.

The case was retried November 22-24, 1993, and Mr. Gomez was again convicted. This appeal followed.

DISCUSSION

I. SPEEDY TRIAL

Mr. Gomez first claims that he was denied his statutory and constitutional right to a speedy trial, in violation of the Speedy Trial Act, 18 U.S.C. Sec. 3162, and the Sixth Amendment. We review constitutional violations and the district court's compliance with the requirements of the Speedy Trial Act de novo, United States v. Dirden, 38 F.3d 1131, 1135 (10th Cir.1994); United States v. Davis, 1 F.3d 1014, 1017-18 (10th Cir.1993), accepting the court's factual findings unless clearly erroneous. United States v. Pasquale, 25 F.3d 948, 950 (10th Cir.1994).

1. Speedy Trial Act

The Speedy Trial Act requires that the trial of a criminal defendant commence within seventy days of the filing of the indictment, or from the date that the defendant first appears before a judicial officer, whichever is later. 18 U.S.C. Sec. 3161(c)(1). The remedy for a violation of the Act is dismissal of the indictment. Id. Sec. 3162(a)(2). However, the statute is not self-executing. It places on the defendant the burden of asserting a violation of the statute, explicitly providing that the "[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section." Id. (emphasis added); see United States v. McKinnell, 888 F.2d 669, 676 (10th Cir.1989) (holding that even if defendant had been "entitled to relief under section 3161(a)(2) [sic], he waived his rights to that relief by his failure to move for dismissal prior to trial"); see also United States v. Alvarez, 860 F.2d 801, 821 (7th Cir.1988) (citing cases), cert. denied, 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434 (1989).

Mr. Gomez does not dispute that he failed to raise his Speedy Trial Act claim prior to trial. Thus, the plain language of the statute itself dictates that he has waived any right that he may have had to dismissal of the indictment under section 3162(a)(2). See McKinnell, 888 F.2d at 676. Mr. Gomez argues, however, that notwithstanding his failure to comply with the Act, we must reverse his conviction for plain error. We disagree.

The decision to correct a plain error is within the "sound discretion of the Court of Appeals, and the court should not exercise that discretion unless the error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.' " United States v. Olano, 507 U.S. 725, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)); Fed.R.Crim.P. 52(b); United States v. Overstreet,

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40 F.3d 1090, 1092 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995). Rule 52(b) grants an appellate court the authority to correct "an 'error' that is 'plain' and that 'affects substantial rights' " Olano, 507 U.S. at ----, 113 S.Ct. at 1776; United States v. Smith, 24 F.3d 1230, 1233 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 270, 130 L.Ed.2d 188 (1994). However, as a prerequisite to plain error review under Rule 52(b), a court must first find that an "error" indeed has been committed.

"Deviation from a legal rule is 'error' unless the rule has been waived." Olano, 507 U.S. at ----, 113 S.Ct. at 1777. The obvious corollary to this statement is that "if there has been a valid waiver, there is no 'error' for us to correct." United States v. Lakich, 23 F.3d 1203, 1207 (7th Cir.1994). Waiver is defined as "an intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). And while the mere failure to timely assert a constitutional right does not constitute a waiver of that right, id. at 468, 58 S.Ct. at 1024-25; see United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937-38, 18 L.Ed.2d 1149 (1967); Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1625-26, 16 L.Ed.2d 694 (1966), a waiver of a statutory right may be valid even if it is not knowingly made. See United States v. Robinson, 8 F.3d 418, 421 (7th Cir.1993). The Supreme Court has stated that "[w]hether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." Olano, 507 U.S. at ----, 113 S.Ct. at 1777.

The "right at stake" in this case is a statutory right--created by Congress to benefit both the criminal defendant who awaits trial and the public who expect "speedy justice." United States v. Saltzman, 984 F.2d 1087, 1091 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2940, 124 L.Ed.2d 689 (1993). However, just as the Act provides a remedy for violation of its speedy trial mandate, so too it unequivocally provides that the failure of a defendant to move for dismissal prior to trial constitutes a waiver of any right to that remedy. Congress has not included a requirement in the Act that the defendant's waiver be made knowingly and intelligently. Thus, by the clear terms of the statute itself, the defendant's failure to timely...