FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 6, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 14-8037
(D.C. No. 1:13-CR-00160-NDF-1)
EUGENE VELARDE, (D. Wyoming)
Defendant-Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
Mr. Eugene Velarde was charged in federal court with conspiracy to
(1) distribute methamphetamine and (2) possess methamphetamine with the
intent to distribute. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. Mr.
Velarde’s attorney asked for a continuance. Rather than continue the trial,
the district court selected a jury on October 29, 2013, and deferred opening
statements until January 7, 2014. At the eventual trial, two
methamphetamine distributors testified that they had frequently purchased
their supplies from Mr. Velarde. The jury rendered a guilty verdict and
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But, the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
found that the conspiracy had involved 500 grams or more of
methamphetamine.
On appeal, Mr. Velarde asserts statutory and constitutional
challenges to the pretrial delay and argues that there was insufficient
evidence of guilt. We reject these contentions, concluding:
1. Statutory Claim of Delay. Mr. Velarde waived his right to
dismissal under the Speedy Trial Act. The court can dismiss
under the Act only if the defendant files a pretrial motion to
dismiss on the basis of pretrial delay, and Mr. Velarde did not
file a pretrial motion based on this ground.
2. Constitutional Claim of Delay. The pretrial delay did not
violate the U.S. Constitution. The Sixth Amendment’s right to a
speedy trial is violated only if the defendant asserts a right to a
speedy trial and suffers prejudice from the delay. These
requirements are not satisfied here: The delay did not prejudice
Mr. Velarde, and he did not assert a right to a speedy trial until
after the jury had found him guilty.
3. Claim Involving Insufficiency of Evidence. The evidence was
sufficient based on the testimony of two methamphetamine
distributors.
I. Speedy Trial Act
By failing to move for dismissal based on delay until after the trial
was over, Mr. Velarde waived his right to dismissal under the Speedy Trial
Act.
Under the Speedy Trial Act, defendants can obtain dismissal only if
they file a pretrial motion to dismiss based on delay. United States v.
Gomez, 67 F.3d 1515, 1519 (10th Cir. 1995). If a defendant fails to file a
pretrial motion on this ground, the statutory right to a speedy trial is
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waived. 18 U.S.C. § 3162(a)(2) (2012); see Oral Arg. 2:17-2:45
(acknowledgment by defense counsel that the Speedy Trial Act requires a
pretrial motion to avoid waiver).
Mr. Velarde conceded in oral argument that he had not invoked the
Speedy Trial Act until after he was found guilty. Oral Arg. 5:05-6:21.
Rather than invoke the Speedy Trial Act, defense counsel asked for a
continuance, stating he did not object to a delay until January 2014. By
failing to file a pretrial motion to dismiss based on delay, Mr. Velarde
waived his right to dismissal under the Speedy Trial Act. 1
II. Sixth Amendment Right to a Speedy Trial
Mr. Velarde also invokes his right to a speedy trial under the Sixth
Amendment. We reject the Sixth Amendment claim.
A. Standard of Review
On this claim, we engage in de novo review. United States v. Seltzer,
595 F.3d 1170, 1175 (10th Cir. 2010). In conducting this review, we
consider four factors:
1. how long the delay lasted,
2. what caused the delay,
3. whether the defendant asserted his right to a speedy trial, and
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Mr. Velarde argues that he did not consent to his attorney’s request
for a continuance. But, the record on appeal does not include any evidence
(or even an allegation) that Mr. Velarde asked his attorney to file a pretrial
motion to dismiss under the Speedy Trial Act.
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4. whether the delay was prejudicial to the defendant.
United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006). Though no
single factor is dispositive, the length of the delay is a threshold
requirement; thus, we need not address the second, third, and fourth factors
unless the delay is “‘presumptively prejudicial.’” United States v. Dirden,
38 F.3d 1131, 1137 (10th Cir. 1994) (quoting United States v. Tranakos,
911 F.2d 1422, 1427 (10th Cir. 1990)).
B. The Four-Factor Balancing Test
The delay is not presumptively prejudicial, which forecloses a
constitutional claim even without consideration of the other three factors.
But, even if we were to consider the other three factors, all would weigh
against a constitutional violation.
1. Length of Delay
Even under Mr. Velarde’s version of the facts, the trial was delayed
by less than five months. A five-month delay is not presumptively
prejudicial, for we have declined to presume prejudice for even greater
delays. See, e.g., United States v. Occhipinti, 998 F.2d 791, 798 (10th Cir.
1993) (172 days); United States v. Lugo, 170 F.3d 996, 1002 (10th Cir.
1999) (approximately 7 months); United States v. Dirden, 38 F.3d 1131,
1138 (10th Cir. 1994) (7½ months); United States v. Kalady, 941 F.2d
1090, 1095 (10th Cir. 1991) (8 months). Under these decisions, Mr.
Velarde’s delay was not presumptively prejudicial.
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2. Reason for the Delay
The reason for the delay also weighs against a constitutional
violation. See United States v. Larson, 627 F.3d 1198, 1208 (10th Cir.
2010) (stating that the reason for the delay weighs against a constitutional
violation when the defendant’s actions constituted the primary cause for
the delay). The district court delayed opening statements so that Mr.
Velarde’s trial attorney could have more time to prepare.
Mr. Velarde argues that even though it was his attorney who had
asked for a delay, he did not ask to bifurcate jury selection and opening
statements. That is true. But, the court postponed the trial only because
Mr. Velarde’s attorney wanted more time to prepare. See Appellant’s
Opening Br. at 22-23 (stating “that the Court created the bifurcation in
order to appease the Defendants’ request for a continuance”); id. at 29
(conceding that Mr. Velarde’s attorney asked for a trial continuance
because he was unprepared to proceed). As a result, this factor weighs
against a constitutional violation.
3. Mr. Velarde’s Assertion of His Right
Mr. Velarde did not assert his right to a speedy trial until after he
was found guilty. To the contrary, his attorney asked for a continuance and
volunteered that he did not object to a delay of the trial until January 2014.
Thus, this factor weighs against a constitutional violation. See United
States v. Batie, 433 F.3d 1287, 1291 (10th Cir. 2006) (stating that this
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factor weighs against a constitutional violation when the defendant moves
for dismissal after the trial has already taken place).
4. Prejudice to Mr. Velarde
Finally, the delay did not prejudice Mr. Velarde.
In assessing prejudice, we examine “the particular evils the speedy
trial is intended to avert: ‘pretrial incarceration; . . . anxiety and concern
of the accused; and . . . the possibility that the defense will be impaired.’”
United States v. Batie, 433 F.3d 1287, 1292 (10th Cir. 2006) (quoting
United States v. Kalady, 941 F.2d 1090, 1095 (10th Cir. 1991)). “The most
serious of these is impairment of the defense ‘because the inability of a
defendant adequately to prepare his case skews the fairness of the entire
system.’” Id. (quoting Barker v. Wingo, 407 U.S. 514, 532 (1972)).
Mr. Velarde remained on release until shortly before opening
statements. Oral Arg. 10:48-10:54; see also Appellant’s Opening Br. at 31
(concession by Mr. Velarde that he “was not incarcerated and was on
pretrial release” during the delay). And, as noted above, the court
postponed the trial only because Mr. Velarde’s attorney said he needed
more time. The delay did not prejudice Mr. Velarde; it helped him by
giving his attorney the time he said he needed.
According to Mr. Velarde, the delay was prejudicial because he was
subject to release conditions during the delay and the jury could have
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researched the case on the internet with the additional time. Both
arguments are invalid.
The conditions of pretrial release are not in our record on appeal.
But, we can take judicial notice of the conditions. See Guttman v. Khalsa,
669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (stating that we can take judicial
notice of district court filings omitted in the record on appeal). These
conditions involved a deposit of $2,500 into the Clerk’s office as security
and a variety of restrictions. See United States v. Velarde, No. 1:13-cr-
00160-NDF-1 (D. Wyo. Aug. 15, 2013) (Appearance Bond); United States
v. Velarde, No. 1:13-cr-00160-NDF-1 (D. Wyo. Aug. 15, 2013) (Order
Setting Conditions of Release). But, prejudice is the most serious when it
impedes the ability of the defendant to prepare his case. See p. 6, above.
As noted above, the district court postponed opening statements only
because Mr. Velarde’s attorney said he was not ready. Mr. Velarde’s
restrictions on his liberty were a substantial, but unavoidable cost of
giving his attorney the time he said he needed.
Mr. Velarde argues that by selecting the jury two months before
opening statements, the court created an opportunity for the newly selected
jurors to research the case on the internet. This argument rests on
speculation. As Mr. Velarde concedes, the district court told the newly
selected jurors not to read or research anything about the case. Appellant’s
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Opening Br. at 31. There is nothing to suggest that the jury violated the
court’s instructions in this two-month period.
The absence of prejudice weighs against a constitutional violation.
5. Summary
Because all four of the factors weigh against a constitutional
violation, we reject Mr. Velarde’s argument for reversal.
III. Sufficiency of the Evidence
Mr. Velarde challenges the sufficiency of evidence. But, based on the
trial evidence, the jury could reasonably have found Mr. Velarde guilty of
conspiracy to distribute 500 grams or more of methamphetamine. Thus, we
reject this challenge.
A. Standard of Review
In deciding whether the district court should have granted the motion
for judgment of acquittal, we engage in de novo review. United States v.
Ailsworth, 138 F.3d 843, 846 (10th Cir. 1998). For this review, we ask:
Could a reasonable jury have found Mr. Velarde guilty beyond a reasonable
doubt for this crime? See United States v. Jones, 768 F.3d 1096, 1101
(10th Cir. 2014).
To prove guilt, the prosecution bore the burden of proving that Mr.
Velarde
had agreed with another person to violate methamphetamine
trafficking laws,
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had acquired knowledge of the essential objectives of the
conspiracy,
had knowingly and voluntarily participated in the conspiracy,
and
had acted in a manner interdependent with co-conspirators.
United States v. Dozal, 173 F.3d 787, 797 (10th Cir. 1999).
B. Conspiracy Charge
Based on the evidence, the jury could reasonably have found Mr.
Velarde guilty of the conspiracy.
Ms. Amy Conway and Mr. Ory Johnson testified that they had
frequently bought methamphetamine from Mr. Velarde for resale to others.
Ms. Conway added that after she had introduced Mr. Johnson to Mr.
Velarde, the two men “cut [her] out of the [methamphetamine] deal.”
Appellant’s App., vol. 3, at 257-58. From this testimony, the jury could
rationally have found beyond a reasonable doubt that Mr. Velarde was
guilty of conspiracy. 2
2
The government also presented evidence involving (1) the number of
calls between Mr. Velarde and his codefendants, and (2) a codefendant’s
placement of Mr. Velarde’s address in a GPS system. Mr. Velarde argues
that this evidence does not support guilt. We need not address this
argument because the testimony of Ms. Conway and Mr. Johnson provides
sufficient support for the finding of guilt.
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C. Credibility of the Witnesses
On appeal, Mr. Velarde argues that the witnesses were not credible.
This argument lacks merit, for assessment of credibility is for the jury, not
our court. United States v. Irvin, 682 F.3d 1254, 1266 (10th Cir. 2012).
D. Quantity of Methamphetamine
Mr. Velarde also challenges the sufficiency of evidence for the
distribution of 500 or more grams of methamphetamine. We reject this
challenge.
Mr. Johnson testified that except for one week, he had bought one to
two ounces of methamphetamine from Mr. Velarde on a weekly basis from
late June or early July until the first week of December. Even if we were to
assume that Mr. Johnson waited until early July to start buying
methamphetamine from Mr. Velarde, the purchases would have lasted at
least 19 weeks.
One ounce equals 28.3495 grams. Thus, the jury could infer that Mr.
Velarde sold Mr. Johnson between 28.3495 and 56.699 grams of
methamphetamine on 19 occasions. The total would have involved between
538.6 and 1077.3 grams. As a result, the jury could reasonably find that
Mr. Velarde had conspired to distribute 500 grams or more of
methamphetamine.
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IV. Conclusion
We affirm. Mr. Velarde waived his rights under the Speedy Trial Act,
and the pretrial delay did not violate the Sixth Amendment. At the trial, the
jury could have reasonably found guilt. Thus, we reject Mr. Velarde’s
challenges to the pretrial delay and the sufficiency of the evidence.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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