U.S. v. Olivo

• Decision Date: 06 November 1995
• Docket Number: No. 94-5178,94-5178
• Citation: 69 F.3d 1057
• Parties: 43 Fed. R. Evid. Serv. 401 UNITED STATES of America, Plaintiff-Appellee, v. Arnulfo C. OLIVO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1057

69 F.3d 1057

43 Fed. R. Evid. Serv. 401

UNITED STATES of America, Plaintiff-Appellee, v. Arnulfo C. OLIVO, Defendant-Appellant.

No. 94-5178.

United States Court of Appeals, Tenth Circuit.

Nov. 6, 1995.

William D. Lunn, Tulsa, Oklahoma, for appellant.

Allen J. Litchfield, Assistant United States Attorney, Tulsa, Oklahoma (Stephen C. Lewis, United States Attorney, Tulsa, Oklahoma, with him on the brief), for appellee.

Before MOORE, HENRY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Arnulfo Olivo appeals from his convictions on a five-count superseding indictment of conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana (21 U.S.C. Sec. 846, 21 U.S.C. Sec. 841(a)(1)), laundering money and aiding and abetting (18 U.S.C. Sec. 1956(a)(1)(B), 18 U.S.C. Sec. 2), engaging in monetary transaction from unlawful activity and aiding and abetting (18 U.S.C. Sec. 1957, 18 U.S.C. Sec. 2), failing to file Internal Revenue Service Form 8300 and aiding and abetting (26 U.S.C. Sec. 6050I(f)(1)(A), 26 U.S.C. Sec. 7203, 18 U.S.C. Sec. 2), and conspiracy (18 U.S.C. Sec. 371). Olivo contends (1) the court erred in denying his motion to dismiss based on the Speedy Trial Act; (2) the court erred in admitting evidence of a subsequent bad act; (3) the court erred in admitting evidence of prior bad acts; (4) the court erred in allowing the government to lead its principal witness; (5) the court erred in refusing Olivo's request to use misconduct evidence to impeach a government witness; and (6) the court erred in admitting alleged hearsay evidence. We affirm.

From 1987 through 1992, Emilio Castillo imported into Oklahoma approximately 8,320 pounds of marijuana from Mexico and Texas. Olivo and his father, Elisar Olivo, transported some of the marijuana from Texas to Oklahoma. Olivo worked as a truck driver for Scrivner Trucking. Because the company sealed the doors to the freight containers on its trucks, law enforcement officers rarely examined its trucks for contraband. Olivo concealed marijuana, which first had been compressed, wrapped, dipped in tar, and rewrapped, in boxes similar to those shipped by Scrivner, and hid the boxes on northbound trucks. After the trucks safely passed through the checkpoints, they stopped at a prearranged destination where the marijuana was removed and then delivered to David Shanks' farm for weighing and distribution.

Roy Wales distributed small amounts of marijuana for Castillo. Wales had been introduced to Tony Winkle, who worked for an automobile dealer in Oklahoma. Wales knew Winkle sold automobiles for cash without reporting the sales to Internal Revenue Service. Castillo owed Olivo approximately $25,000 for drug transactions and, in April 1992, Castillo asked Wales to purchase with cash a pickup that had been selected by Olivo. Castillo and Wales delivered the truck to Olivo at his home in Donna, Texas.

On November 17, 1992, investigative agents searched Olivo's home, where they found a concealed pit in his barn and seized two large scales, plastic wrapping paper, and 700 grams of marijuana residue. The government initially filed a four-count indictment, but later filed a superseding indictment adding an additional conspiracy count, lengthening the alleged duration of the original conspiracy count, and expanding the original conspiracy count to include three additional defendants.

I. Speedy Trial Act

Olivo argues his trial did not commence within the time prescribed by the Speedy Trial Act. "We review the district court's denial of a motion to dismiss under the Act for an abuse of discretion, however we review the district court's compliance with the requirements of the Act de novo." United States v. Earls, 42 F.3d 1321, 1323-24 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1800, 131 L.Ed.2d 727 (1995). We accept the district court's factual findings unless they are clearly erroneous. United States v. Pasquale, 25 F.3d 948, 950 (10th Cir.1994).

The Act requires that a defendant be tried "within seventy days from the filing date (and making public) of the ... 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 seventy-day period is subject to exclusions under Sec. 3161(h); for example, periods of delay resulting from the filing of a pretrial motion, (h)(1)(F), a reasonable period of delay when defendant is joined for trial with a codefendant as to whom the speedy trial clock has not run, (h)(7), and periods of delay resulting from a continuance granted by the judge to serve the "ends of justice," (h)(8). Section 3162(a)(2) provides that if defendant is not brought to trial within the time limit established by Sec. 3161(c), as extended by Sec. 3161(h), the "indictment shall be dismissed on motion of the defendant."

On December 9, 1993, the government filed a four-count indictment, charging Olivo with conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana, laundering money and aiding and abetting, engaging in monetary transaction from unlawful activity and aiding and abetting, and failure to file Internal Revenue Service Form 8300. Olivo made his initial appearance on these charges in Texas on January 20, 1994; however, he did not appear before a judicial officer in Oklahoma until February 9, 1994. Because the charges were pending in the Northern District of Oklahoma, his speedy trial clock did not begin to run until February 9. United States v. Palomba, 31 F.3d 1456, 1462 (9th Cir.1994). A period of 131 days elapsed between initial appearance and trial (this period does not include the day of arraignment, United States v. Vasser, 916 F.2d 624, 626 (11th Cir.1990), cert. denied, 500 U.S. 907, 111 S.Ct. 1688, 114 L.Ed.2d 82 (1991)).

Key to our resolution of this issue is whether the filing of the superseding indictment triggered an additional excludable period from the speedy trial calculation. The government filed the superseding indictment on April 6, 1994, adding an additional conspiracy count, and expanding the existing conspiracy count by joining three codefendants and lengthening the alleged period of time. Jesus Arrendondo was the last of the four defendants to make his initial appearance on May 9, 1994. As of April 6, 1995, no more than 55 nonexcludable days had passed. In an order filed April 20, 1994, which consisted of a single sentence, the court purported to grant a Sec. 3161(h)(8) "ends of justice" continuance to June 20, 1994; however, it based the continuance solely on the expanded scope of the superseding indictment. This court has explained that "[s]ubsection (h)(7) treats exclusions of time because codefendants are in the case, not subsection (h)(8)." United States v. Theron, 782 F.2d 1510, 1513 (10th Cir.1986).

On May 2, 1994, Olivo moved to dismiss the indictment and sought release from detention, arguing his time had run under the Speedy Trial Act. In its response to the motion, the government requested that the court "recognize" the continuance as a reasonable period of delay pursuant to Sec. 3161(h)(7). By agreement of the parties, the court set bond at $100,000 on May 17, 1994. The court issued an order on June 1, 1994, in which it denied Olivo's motion to dismiss and found that "any delay occasioned by the filing of the superseding indictment and determination of the pre-trial motions filed by the co-defendant, constitutes a reasonable and unavoidable delay." We read this order as finding all time after the filing of the superseding indictment on April 6, 1994, amounted to "reasonable delay" under Sec. 3161(h)(7).

Olivo concedes this argument turns on our interpretation and application of Sec. 3161(h)(7). If (h)(7) applies to the period from April 6, 1994, to trial, Olivo's speedy trial argument fails. 18 U.S.C. Sec. 3161(h)(7) provides for exclusion of "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted." The instant case is within the broad language of (h)(7): The superseding indictment joined Olivo for trial with three codefendants; the court did not sever Olivo; and the time for trial as to his codefendants had not run. The question is whether the delay occasioned by the filing of the superseding indictment is "reasonable" under (h)(7). The reasonableness of a delay depends upon the relevant circumstances. United States v. Tranakos, 911 F.2d 1422, 1426 (10th Cir.1990).

When examining the relevant circumstances, the first factor to consider is the "obvious purpose behind the exclusion"; that is, "to accommodate the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial." Theron, 782 F.2d at 1514. "Where 'the government will recite a single factual history, put on a single array of evidence, and call a single group of witnesses,' a single trial is preferred." Tranakos, 911 F.2d at 1426 (quoting United States v. Mobile Materials, 871 F.2d 902, 916 (10th Cir.), modified on other grounds, 881 F.2d 866 (10th Cir.1989), cert. denied, 493 U.S. 1043, 110 S.Ct. 837, 107 L.Ed.2d 833 (1990)). Here, the superseding indictment charged all defendants with conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana. Castillo was the leader of the conspiracy. The conduct underlying the remaining counts related to a scheme intended to satisfy a drug debt owed by Castillo to Olivo.

In addition to efficiency, we also must consider whether Olivo "zealously pursued a speedy trial" and whether he was free on bond. Id. Olivo moved to dismiss and for release on bond. Apart from these two motions, Olivo did not significantly contribute to the delay of his trial on the superseding indictment. However, he did not move to sever. Cf. Mobile Materials, 871 F.2d at...