U.S. v. Murillo
| Decision Date | 25 April 2002 |
| Docket Number | No. 00-10163.,00-10163. |
| Citation | 288 F.3d 1126 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ricardo MURILLO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John C. Lambrose, Assistant Federal Public Defender, Las Vegas, Nevada, for the defendant-appellant.
Peter Ko and Thomas M. O'Connell, Assistant United States Attorneys, Las Vegas, Nevada, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada; Justin L. Quackenbush, Senior Judge, Presiding. D.C. No. CR-S-98-00347-JLQ.
Before: GOODWIN and TROTT, Circuit Judges, and EZRA,* District Judge.
Ricardo Murillo appeals his conviction and life sentence for participation with three other persons in the murder-for-hire of Patricia Margello. The district court's jurisdiction was grounded upon 18 U.S.C. § 1958(a), which prohibits the use of interstate commerce facilities in the commission of murder-for-hire. After a seven-day trial, Murillo was convicted of both the conspiracy count and the participation count. The appeal challenges the thirteen-month delay between indictment and trial, and an alleged "Batson" error in excusing a juror at the request of the prosecution. Other alleged errors were briefed and argued. None requires reversal.
In summer 1998, Christopher Moseley, a Delaware resident, sent his troubled stepson Dean MacGuigan, a forty-year old unemployed drug addict, to Las Vegas to establish residency and obtain a quick divorce. Moseley hired Diana Hironaga, Joseph Balignasa, and Murillo to help MacGuigan "straighten out his life." Moseley directed activities from Delaware. The three hired hands were to help MacGuigan find a job and obtain a divorce attorney. "Operation Dean," as it was called, however, soon escalated to its darker side, the murder of Margello, whom Moseley considered a bad influence on MacGuigan.
During the evening of August 1 through the early morning of August 2, 1998, Hironaga lured Margello to a meeting with Murillo and Balignasa. The four drove to a motel in Las Vegas, where Hironaga booked a room for them under her name. Once in the room, Margello made three telephone calls. The third call was to MacGuigan; Margello told him that she was with Hironaga and Murillo and had a "bad feeling." After Margello hung up the phone, Murillo pushed her to the bed, and with Balignasa holding Margello's feet and Hironaga her arms, strangled her to death with a belt.
After Margello was dead, Murillo and Balignasa went to a nearby convenience store to buy trash bags and mailing tape. Hironaga stayed in the hotel room with the corpse. When Murillo and Balignasa returned with the supplies, the three wrapped the body in trash bags and a sheet from the bed. They secured the bags around the body with tape, a cable from the television set and jumper cables from Murillo's car. They then stuffed the body into the air conditioning duct of the motel room. Balignasa and Hironaga used towels to wipe away evidence. Balignasa then placed the soiled towels in a black bag, which Murillo put in the trunk of his car.
Moseley, still in Delaware, made flight reservations for Murillo and Hironaga to travel to Philadelphia to collect payment. When Murillo and Hironaga arrived at the Philadelphia airport, they were met by a limousine driver who delivered the cash from Moseley. According to Hironaga, she received $5000 and Murillo received $10,000.
Margello's body was discovered on August 4, 1998. On August 28, Hironaga was questioned by police. She admitted participating in Margello's murder and incriminated Moseley, Murillo and Balignasa. Murillo was questioned on September 1. He denied participating in Margello's murder, but made several statements that the police knew were false. That same day, investigators discovered a white Ford Tempo outside of Murillo's apartment. The car was registered to Murillo and his girlfriend. The Tempo was seized and a warrant was obtained for a search which produced two hotel towels that matched those in the motel where the body was found.
After his interview, Murillo was arrested on murder charges. Moseley was interviewed and confessed to paying Hironaga and Murillo to kill Margello. On September 22, a federal grand jury indicted Murillo, Hironaga and Moseley on the conspiracy and murder-for-hire charges, and on October 9, the three co-defendants were arraigned. A tentative trial date was set for November 30, 1998. (Balignasa was prosecuted by the State of Nevada, and was not tried with the co-defendants.)
Over Murillo's objection, the court in November 1998 granted the government an "ends of justice" continuance pursuant to 18 U.S.C. § 3161(h)(8)(A) and re-scheduled the trial to begin in October 1999. Murillo's request that his trial be severed from that of his co-defendants was granted in January 1999, but his trial date was not advanced. After further negotiations, Hironaga and Moseley entered into plea agreements. On November 8, 1999, Murillo's trial began. Murillo was convicted by a jury of the murder-for-hire charges and sentenced to concurrent life terms.
Moseley and Hironaga agreed to the government's motion for the "ends of justice" continuance, but Murillo consistently opposed the continuance, stating that he was "ready to proceed to trial." At the November 25, 1998 calendar call, Judge Pro, who was then presiding over the early stages of the prosecution, held a hearing on the Motion to Continue, at which time Murillo stated that "we're ready ... for trial on Monday." Murillo argued that this was "not a complicated case," as there were "few witnesses," "no forensic evidence" and "neither wiretaps, nor extensive discovery."
On December 1, 1998, the district court issued an order granting the continuance until October 1999 "in accordance with 18 U.S.C. § 3161(h)(8)(A), as the ends of justice served by taking such action outweigh the interests of the public and the Defendants in a speedy trial." Because the statute under which the prosecution was proceeding authorized the death penalty, and because the local United States Attorney was required to clear death penalty issues with the United States Department of Justice ("DOJ") before setting in motion the procedures required for a capital case,1 it was obvious that the trial could not commence "on Monday."
In April 1999, the government gave notice of its intent not to seek the death penalty. In May, Hironaga entered into a plea agreement, and agreed to testify against Moseley and Murillo. On June 11, 1999, Murillo abandoned his earlier argument that the case was not complicated, and joined the government in a stipulation to continue deadline dates for motions. The stipulation stated, in part, "Denial of this request for continuance would deny counsel for the defendant sufficient time, in light of the extensive nature of the discovery, and the fact that the investigation in this case involves several geographical locations, within which to be able to effectively and thoroughly research, prepare and submit for filing appropriate pretrial motions and notices of defense."
On July 1, 1999, Murillo filed a motion to suppress the towels found in the trunk of his car. Murillo also filed a Motion to Dismiss under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. On August 6, 1999, the Magistrate Judge issued a report in which he recommended that the court deny Murillo's motion to suppress physical evidence. On August 23, 1999, the government filed its brief in opposition to Murillo's Motion to Dismiss under the Speedy Trial Act. Four days later, the Magistrate Judge issued a Report and Recommendation to Deny Murillo's Motion to Dismiss under the Speedy Trial Act. On August 30, 1999, the district court issued an Order affirming the Magistrate Judge's Reports and Recommendations Denying Murillo's Motion to Suppress Physical Evidence. On September 22, 1999, the district court issued an Order denying Murillo's Motion to Dismiss under the Speedy Trial Act. Finally, on November 8, 1999, Murillo's trial began.
The above described sequence of motions, deliberations and rulings is unremarkable in a complex federal prosecution, particularly one in which the Justice Department had been required to give consideration to the death penalty. There is no evidence, circumstantial or direct, that the government sought any tactical advantage by delay. Obviously, the government was aware of the tactical advantage of having two out of three defendants agree to a plea, and to testify. The record, however, contains no suggestion that the government delayed its negotiations with the conspirators in order to deny Murillo a speedy trial.
Murillo's appeal argues his speedy trial violation on two theories: (1) Sixth Amendment right, and (2) statutory right, 18 U.S.C. § 3161. Murillo claims that the Speedy Trial Act is merely a narrower codification of the constitutional speedy trial right under the sixth amendment, citing United States v. Pollock 726 F.2d 1456, 1459-60 (9th Cir.1984). Pollock states: Id. at 1460 n. 5. We need not in this appeal, be detained by how the matter was raised in the trial court, or by the theoretical question whether Murillo's right is statutory or constitutional. It is both. The real question is whether the government illegally deprived him of the right to a speedy trial, and if so, whether the delay was prejudicial.
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