U.S. v. Mejia, 91-6108

• Decision Date: 14 May 1996
• Docket Number: No. 91-6108,91-6108
• Citation: 82 F.3d 1032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guillermo Javier MEJIA, a/k/a Miguel; Jorge Ortega, Ramon Lopez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1032

82 F.3d 1032

UNITED STATES of America, Plaintiff-Appellee, v. Guillermo Javier MEJIA, a/k/a Miguel; Jorge Ortega, Ramon

Lopez, Defendants-Appellants.

No. 91-6108.

United States Court of Appeals, Eleventh Circuit.

May 14, 1996.

Yolanda Morales, Coral Gables, FL, for Jorge Ortega.

Arthur Joel Berger, Miami, FL, for Guillermo Javier Mejia and Ramon Lopez.

Kendall Coffey, U.S. Attorney, Madeleine Shirley, Adalberto Jordan, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before EDMONDSON and DUBINA, Circuit Judges, and ENGEL ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Guillermo Mejia, Jorge Ortega and Ramon Lopez appeal drug convictions. We affirm.

Jose Benitez, a confidential informant working under the supervision of Special Agent Paul Grimal, was placed on a boat going from Miami to Columbia, South America. Benitez was to gather intelligence on the Columbian drug trade and (if contacted by cocaine traffickers) to arrange to bring cocaine into the United States so that the distributors could be arrested. When Benitez's boat arrived at an island off the coast of Columbia, Benitez was notified that "Cesar" wanted him to smuggle some cocaine to the United States.

Benitez was taken to Cesar's home, where he met with Cesar, appellant Mejia, and a drug dealing Columbian policeman. Benitez and Mejia discussed the logistics of delivering the cocaine to Miami; they also agreed to meet at a bar near the Miami River docks once the drugs were successfully smuggled into the United States. After this conversation, Benitez returned to the boat; and the policeman later delivered to him over 5 kilos of cocaine. The boat, Benitez, and the cocaine then made the return voyage to Miami.

A day after the boat docked in Miami, Benitez arrived at a local hotel for a pre-arranged meeting with Agent Grimal. Before finding Grimal, however, Benitez coincidentally ran into Mejia. As the two talked, appellant Lopez arrived. Mejia told Benitez that Benitez should deliver the cocaine to Lopez. Lopez and Benitez then discussed where the delivery should take place. Agent Grimal, at the hotel to meet with Benitez, observed all of this conduct.

Later, a rendezvous was set up at a restaurant. Benitez, wearing a hidden eavesdropping device provided by Agent Grimal, arrived at the restaurant and was met by Lopez. At the restaurant already was appellant Ortega, who had not met Benitez before. Codefendant Alameda arrived next. After going into the restaurant, Alameda returned to his car and picked up a transparent bag filled with cash. He then returned to the restaurant with the cash bag. Lopez instructed Ortega to go with Benitez to retrieve the cocaine; Ortega and Benitez left in Benitez's car. Lopez also left the restaurant and followed Benitez.

Ortega directed Benitez to their destination (a trailer park). During the trip, Ortega explained to Benitez that the cash had not been wrapped properly and told Benitez that "when you have something on you, you have to be very careful." Upon arrival at the trailer park, Ortega got out of the car; and Benitez handed him a briefcase containing drugs. Unknown to Defendants, drug agents had been observing this activity; agents arrested Ortega, Lopez, Alameda and, eventually, Mejia.

All four defendants were to be tried together. But, after opening statements, Alameda changed his plea to guilty and later testified for the government. Two defendants testified on their own behalf and offered innocent explanations for their misdeeds. Still, all were convicted of possession with intent to distribute cocaine and of conspiracy to do the same. On a variety of grounds, each appeals his convictions. We affirm.

I.

Each appellant argues that his statutory right to a speedy trial was violated. See 18 U.S.C. § 3161. The parties present many arguments on whether the Speedy Trial Act was violated. The district court concluded there was no violation of the Act; and, we may affirm on any ground that finds support in the record. Jaffke v. Dunham, 352 U.S. 280, 280, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957). In general, the burden is on the defendant to prove that a dismissal is appropriate. 18 U.S.C. § 3162(a)(2).

To have been timely, this trial must have started within 70 days of 20 June 1990, the day after the return of the relevant indictment. See 18 U.S.C. § 3161(c)(1); see also, United States v. Vasser, 916 F.2d 624, 626 (11th Cir.1990). But, days which are excludable under the Act are not counted against the 70 day limit. See 18 U.S.C. § 3161(h). And, in a multi-defendant case, time excluded due to one defendant results in excludable days for his codefendants. See United States v. Sarro, 742 F.2d 1286, 1299 (11th Cir.1984).

On 19 July 1990, Ortega filed nine pre-trial motions. ¹ One of these motions was a request for an extension of time for filing further motions. By an order filed on 21 August 1990, the court gave Ortega until fifteen days before trial to prepare and to file pretrial motions. Under these circumstances, courts have concluded that the time given for filing potential pretrial motions is excluded under 18 U.S.C. § 3161(h)(1) because the time given is "delay resulting from other proceedings concerning the defendant." See United States v. Tibboel, 753 F.2d 608, 610 (7th Cir.1985); United States v. Mobile Materials, Inc., 871 F.2d 902, 913-914 (10th Cir.1989); United States v. Wilson, 835 F.2d 1440, 1444-45 (D.C.Cir.1987); United States v. Lewis, 980 F.2d 555, 564 (9th Cir.1992); United States v. Jodoin, 672 F.2d 232, 237- 38 (1st Cir.1982). ² Whether motions are actually filed during the extension is unimportant. United States v. Montoya, 827 F.2d 143, 153 (7th Cir.1986). ³

In this case, excluding the days between the filing of the motion for extension of time and the day which was 15 days before trial eliminates the possibility that the Speedy Trial Act was violated. (About 10 months passed between the order granting the extension and the 1 July 1991 motion to dismiss under the Speedy Trial Act.) ⁴ Where a defendant moves for an extension, he can perhaps limit the number of excludable days by limiting his request for extra time to a definite period. See, e.g., Montoya, 827 F.2d at 153. Or, the defendant can choose to ask for no extension. And, a defendant can object to an open-ended extension. But here no appellant contends that he objected to the open-ended extension granted at the request of Ortega.

In sum, under the circumstances, an order granting an extension of time for the preparing and the filing of pre-trial motions causes a delay for the purpose of the Speedy Trial Act: a delay resulting from a proceeding concerning the defendant. As such, the days between the order granting Ortega's motion for an extension and the day which was 15 days before trial are excluded under section 3161(h)(1). The Speedy Trial Act was not violated here.

II.

Appellants argue that they were denied a fair trial by the government's failure to disclose before trial all inducements offered Benitez in exchange for his cooperation. See generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court's conclusion that no Brady violation occurred is subject to de novo review. See United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir.1996).

Defendants were informed that Benitez received $30,000 for his cooperation in this case. But, defendants say the government did not disclose that Benitez was permitted to take more than $10,000 out of the country without filing the required paperwork, was given free lodging during the course of the investigation, and failed to pay taxes on money given to him for his cooperation. And, the government did not disclose Benitez had previously been paid $16,000 for his work on other cases.

Accepting that the government suppressed the evidence and that the evidence is probative of Benitez's truthfulness, we conclude no reasonable probability exists that the outcome of this trial would have been different had the extra information been disclosed. See Delap v. Dugger, 890 F.2d 285, 298-99 (11th Cir.1989) (observing that a "reasonable probability" is one sufficient to undermine confidence in outcome). The government disclosed that Benitez was paid $30,000 for his work; the other information is cumulative. And, the information alleged to have been withheld was brought out in fact on cross examination of Benitez. ⁵

III.

Appellants argue the district court abused its discretion in refusing to give a jury instruction on entrapment. During deliberations, the jury sent a note to the judge indicating that some jurors believed "a crime was created, by the U.S. Government." The judge then refused a defense request for an entrapment instruction; instead, the court sent a note telling the jury to consider all the evidence in determining whether the Government proved guilt beyond a reasonable doubt and to follow his instructions on the law in determining whether the Government met its burden.

Appellants contend that failing to give the requested instruction "in essence directed a verdict." But, no defendant requested an instruction on entrapment before the note from the jury was sent to the judge. That "the extent and character of additional instructions is within the sound discretion of the trial court" is well settled. United States v. Parr, 716 F.2d 796, 808 (11th Cir.1983). It is also settled that the judge may sometimes simply refer the jury back to his earlier instructions. United States v. Bailey, 830 F.2d 156, 157 (11th Cir.1987). Given this record, the judge's response to the jury's question was no abuse of discretion. ⁶

IV.

Next, Appellants argue the district judge abused his discretion in failing to grant a mistrial based on Alameda's change in plea and later testimony. Alameda's lawyer gave an opening statement where he...