U.S. v. Marin
| Citation | 7 F.3d 679 |
| Decision Date | 20 October 1993 |
| Docket Number | No. 92-2755,92-2755 |
| Parties | 39 Fed. R. Evid. Serv. 1014 UNITED STATES of America, Plaintiff-Appellee, v. Jorge E. MARIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, Scott A. Verseman (argued), Rockford, IL, Robert Christopher Cook, Chicago, IL, for U.S.
Walter Jones, Jr., Jorge V. Cazares (argued), Pugh, Jones & Johnson, Chicago, IL, for defendant-appellant.
Before CUDAHY, COFFEY and MANION, Circuit Judges.
Jorge Enrique Marin was indicted on three counts of participation in a cocaine distribution scheme in Chicago, Ill. Count One charged him with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846; Count Two charged him with a violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2 for possessing with intent to distribute cocaine on August 24, 1990; and Count Three charged him under the same statutes with possession with intent to distribute cocaine on January 16, 1991. On April 2, 1992, a jury found Marin guilty of Counts One and Three, and not guilty of Count Two. He was sentenced to a five-year prison term on Count One, to be followed by a five-year period of probation on Count Three, and ordered to pay a special assessment of $100.
We affirm.
Jorge Enrique Marin ("Marin") had been a longtime drug dealer and Samuel Gibson's ("Gibson") supplier before Gibson took a short hiatus from drug dealing to pursue a partnership interest in financially troubled A-1 Fire and Security Systems ("A-1") in Chicago, Ill. In May 1990, Marin and Gibson had a chance meeting at a railroad crossing in Hammond, Indiana. During this meeting, Marin inquired of Gibson about whether there were any opportunities for employment at A-1 and offered to resume supplying Gibson with cocaine.
Sometime later in the month, Marin met with Gibson at A-I's offices and once again inquired about employment opportunities, suggesting that it would be helpful to have evidence of employment in the event he were stopped by the police. Saying he would "take care of that," Gibson introduced Marin to one of his partners, Robert Warren ("Warren"), who offered Marin a job as a salesperson. Shortly thereafter Gibson had A-I business cards printed for Marin and supplied him with a telephone pager. 1
Several days later, Gibson advised Warren that, since A-I was encountering financial difficulties, he was considering the possibility of dealing drugs to raise money. Warren contacted his brother and his corporate attorney with this information. A few days later, Gibson, while in his office, displayed some cocaine to Warren. After observing the coke, Warren notified the Illinois State Police and agreed to cooperate with them and the FBI in an investigation of Gibson's activities.
Marin subsequently supplied Gibson with an eighth of a kilogram of cocaine, and Gibson suggested that Warren help him find other drug users. On August 23, 1990, Warren complied and advised Gibson that he had a customer who wanted an ounce of cocaine. At this time Warren was cooperating with the police, and the "customer" turned out to be an undercover Illinois State Police officer named Mark Henry ("Henry"). The next day, Gibson, Warren and Henry met and Gibson sold Officer Henry an ounce of cocaine for $1,300. A short time later, Marin went to Florida for several months and returned to Chicago with four kilograms of cocaine that he and Gibson proceeded to sell in a single day.
Officer Henry planned another undercover buy and arranged for Warren to call Gibson and tell him that Henry wanted another half kilo of coke. Gibson called Marin and made the necessary arrangements for the January 16, 1991, sale.
On the prearranged date, Gibson met with Warren and Henry in a parking lot in Hickory Hills, Illinois. Gibson explained that there would be a slight delay because he was waiting for "George" (Marin's nickname). Marin paged Gibson and arranged to meet at a nearby gas station, where he told Gibson that, because he suspected that Warren was a police officer, he would not go to the drug deal in person. Gibson went alone. Marin waited in Gibson's car, while Gibson drove Marin's red Toronado to the nearby parking lot where he consummated the drug deal with Henry for $16,000. After the sale, Marin and Gibson met, split the profits, and departed in their own respective vehicles.
Marin supplied Gibson with another quarter kilo of cocaine on two more occasions, and subsequently the two had a number of meetings and telephone conversations during which Marin demanded payment from Gibson for unpaid cocaine shipments.
Meanwhile, Gibson also met with Warren, who had expressed concern about Marin's absence from the January 16 sale. Gibson explained that because Marin feared that Warren was a cop, he had refused to appear and set up certain precautions to avoid appearing at the drug sale in person.
Finally, Officer Henry, still undercover, offered Gibson $30,000 for another kilogram of cocaine. Gibson agreed, and began price-shopping among his suppliers. Marin quoted him a price of $26,000, but Gibson decided to buy instead from another supplier who charged only $23,000. Gibson was arrested after he resold this kilo to Officer Henry on May 16, while Marin was arrested at his residence on the following day.
On May 17, a criminal complaint was filed in district court charging Marin with one count of having possessed cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). On June 24, 1991, the government moved the court under 18 U.S.C. § 3161(h)(8)(A) to extend the time period for the filing of an indictment by sixty days, and the presiding judge after a hearing granted the motion. On August 28, the government returned a single-count indictment charging Marin with possession of cocaine with intent to distribute.
A superseding indictment was returned on December 11, 1991, charging Marin with one count of conspiring to distribute cocaine from July 1990 to May 16, 1991, and two counts of possession of cocaine with intent to distribute on August 24, 1990, and on January 16, 1991.
Marin raises four issues on appeal. First, he contends that the trial judge abused his discretion by excluding 60 days from the time requirement that an indictment be filed under the Speedy Trial Act. Second, the defendant alleges that the district court violated his right to equal protection when it permitted the government to use a peremptory strike to remove a Hispanic from the jury. Third, he argues that the evidence was insufficient to sustain the jury's guilty verdicts. Finally, Marin claims that the district court committed clear error when it admitted certain co-conspirator statements in evidence at trial.
The Speedy Trial Act requires the government to file an information or indictment within thirty days of the defendant's arrest. 18 U.S.C. § 3161(b). The statute also specifically provides for the exclusion of certain periods of delay in the computation of the timeframe within which an indictment must be filed. 18 U.S.C. § 3161(h). This section provides that a delay may be allowed upon a judge's finding that "the ends of justice served by [granting a continuance] outweigh the best interest of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). Among the factors a court must consider in determining whether to grant an extension under this "ends of justice" exception are the two factors that the government contends justify the continuance it was granted in this case: (1) "Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice," and (2) "[w]hether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the [time] period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex." 18 U.S.C. § 3161(h)(8)(B)(i) and (iii).
In support of its application for an extension, the government informed the court that the defendant was the primary source of cocaine for Gibson, and that Gibson was cooperating with the government in Marin's case as well as in other ongoing investigations. Furthermore, the government pointed out that because its investigations were continuing, it would be unable to present its evidence to the grand jury within thirty days.
In addition, the government informed the court that the early return of an indictment might threaten the safety of Gibson, Gibson's family, as well as the law enforcement officers engaged in this and other ongoing investigations. The government also advised the court that its investigation into Gibson's activities 2 included a financial structuring investigation that was incomplete as of this date.
After hearing the government's arguments on the motion, the trial judge informed defense counsel that:
The court thereafter issued a written order granting the government's motion on two grounds:
To continue reading
Request your trial
-
U.S. v. Canoy
...111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); see also United States v. Cooper, 19 F.3d 1154, 1158 (7th Cir.1994); United States v. Marin, 7 F.3d 679, 685 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 739, 126 L.Ed.2d 702 (1994); cf. J.E.B. v. Alabama ex rel. T.B., --- U.S. ----, -......
-
U.S. v. Williamson
...930 F.2d 1461, 1468 (10th Cir.1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992); see also United States v. Marin, 7 F.3d 679, 686 & n. 4 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 739, 126 L.Ed.2d 702 (1994); United States v. Mixon, 977 F.2d 921, 923 (5th......
-
U.S. v. James
...government was required to prove that Allison (1) knowingly possessed heroin, and (2) intended to distribute it. See United States v. Marin, 7 F.3d 679, 688 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 739, 126 L.Ed.2d 702 (1994). In order to demonstrate possession, the government......
-
U.S.A. v. Buchmeier
...are 'wasted on an appellate court.'" United States v. Hatchett, 31 F.3d 1411, 1416 (7th Cir. 1994) (quoting United States v. Marin, 7 F.3d 679, 688 (7th Cir. 1993)) (citation omitted). "[I]t is not our role, when reviewing the sufficiency of the evidence, to second- guess a jury's credibili......
-
The Not So Speedy Trial Act
...v. Toombs, 574 F.3d 1262, 1268 (10th Cir. 2009)); United States v. Jean, 25 F.3d 588, 594 (7th Cir. 1994) (quoting United States v. Marin, 7 F.3d 679, 683 (7th Cir. 1993)). 153. 18 U.S.C. § 3161(h)(7)(C) (2012). 154. United States v. Pakala, 568 F.3d 47, 57 (1st Cir. 2009); see also Zedner,......