U.S. v. Ortega-Mena, ORTEGA-MEN

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, SMITH, and DUHE; DUHE
• Citation: 949 F.2d 156
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alberto Arturoulices Rivas-Cordova, Jose Antonio Torres-Tirado and Ecchehomo Velgar-Vivero, Defendants-Appellants.
• Decision Date: 10 December 1991
• Docket Number: E,No. 91-2047,ORTEGA-MEN

Page 156

949 F.2d 156 UNITED STATES of America, Plaintiff-Appellee,
v.
Alberto Arturo ORTEGA-MENA, Eulices Rivas-Cordova, Jose
Antonio Torres-Tirado and Ecchehomo Velgar-Vivero,
Defendants-Appellants. No. 91-2047. United States Court of Appeals,
Fifth Circuit. Dec. 10, 1991.
Rehearing Denied Feb. 4, 1992.

Page 157

Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Asst. Federal Public Defender, Houston, Tex., for Ortega-Mena.

Elisa Vasquez, Venso & Vasquez, Galveston, Tex. (Court-appointed), for Rivas-Cordova.

Michael G. Martinez, Houston, Tex. (Court-appointed), for Torres-Tirado.

Ivan R. Lopez DeVictoria, Houston, Tex. (Court-appointed), for Velgar-Vivero.

Jeffery A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for the U.S.

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

Before GOLDBERG, SMITH, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

Appellants, criminal defendants Rivas-Cordova, Velgar-Vivero, and Torres-Tirado, appeal their convictions of conspiracy to import cocaine with intent to distribute. Together they allege that they were tried in violation of the Speedy Trial Act (the Act). In addition, Velgar-Vivero contests the sufficiency of the evidence relating to a firearms count and the admission of post-arrest evidence to show conspiracy. Rivas-Cordova appeals his sentence, challenging the district court's finding that he obstructed justice by destroying evidence. Appellant Ortega-Mena, a co-conspirator who pleaded guilty to the drug-trafficking charges, challenges the upward adjustment of his sentence for possession of a firearm.

For the following reasons, we reverse the convictions of Appellants Rivas- Cordova,

Page 158

Velgar-Vivero, and Torres-Tirado, remand for the dismissal of the indictments against them, and affirm the sentence of Appellant Ortega-Mena.

I. Facts

Customs Service in Galveston, Texas received a tip that the Spring Bride, a ship sailing from Colombia to Galveston, carried a large shipment of cocaine. When the ship entered the Galveston port, Customs Service frogmen approached its rudder hold, an area that could be reached only from the water. The frogmen saw six stowaways, including Appellants, in the hold. When the stowaways left the hold to swim ashore, customs patrol officers immediately apprehended five of them. The sixth man was caught three hours later.

In the rudder hold, an area approximately 6' X 6' X 12', the customs agents found eleven duffel bags filled with cocaine, a burlap sack holding five loaded handguns, and other bags containing food and personal items. On one of the men, Rivas-Cordova, the agents discovered a sock full of bullets.

Appellants were arrested and initially appeared before a federal magistrate on April 25, 1990. They were indicted on May 23 and arraigned on June 12. Appellants' trial originally was set for July 30, but was not held until October 1.

II. Speedy Trial Act

We review the facts supporting a Speedy Trial Act ruling using the clearly erroneous standard, and the legal conclusions, de novo. United States v. Schuster, 777 F.2d 264, 267 (5th Cir.), vacated as moot, 778 F.2d 1132 (5th Cir.1985). The Speedy Trial Act requires that criminal defendants be tried "within seventy days from the filing date ... of the information or indictment, or from the date the defendant has appeared before a judicial officer ... whichever date last occurs." 18 U.S.C. § 3161(c)(1). To determine whether Appellants' trial occurred within the Act's time limit, we must first decide when the speedy trial clock began to run. The Government asserts that the arraignment date set the clock ticking. But, like many other circuits, we construe "appearance before a judicial officer" to mean a defendant's initial appearance before a judicial officer. See United States v. Mentz, 840 F.2d 315, 325 (6th Cir.1988); United States v. Owokoniran, 840 F.2d 373, 374 (7th Cir.1987); United States v. Yunis, 723 F.2d 795, 796 (11th Cir.1984); United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir.1982); United States v. Carrasquillo, 667 F.2d 382, 384 (3d Cir.1981); Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended, 106 F.R.D. 271, 276 (1985). Appellants' indictments occurred after their first appearances before a judicial officer. Therefore, the indictment date triggers the speedy trial clock. The first day of the seventy-day period was May 24, the day following Appellants' indictments. In total, 130 days elapsed between the date of the indictments and October 1, the date on which the trial began.

A. Excludable Delay

Next we must determine how many days of the 130 we may exclude from the calculation of the seventy-day limit. The Act excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F). Delay "resulting from other proceedings concerning the defendant" also serves to toll the speedy trial clock. Id. § 3161(h)(1). Appellants were arraigned on June 12. The arraignment date is excludable as a proceeding under § 3161(h)(1). On July 2, Appellants filed three pretrial motions. The parties discussed these motions on July 20 at their pretrial conference, but the court did not dispose of them by order until August 9. The thirty-nine days from July 2 to August 9, during which the court considered these three pretrial motions, are excludable under § 3161(h)(1)(F).

The Government notes that Appellant...