FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 12, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-3052
MARCO ANTONIO CORTES-GOMEZ,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 5:16-CR-40091-DDC-1)
_________________________________
Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for
Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Stephen R. McAllister, United States
Attorney, with him on the brief), District of Kansas, Topeka, Kansas, for Plaintiff-
Appellee.
_________________________________
Before HARTZ, SEYMOUR, and HOLMES, Circuit Judges.
_________________________________
SEYMOUR, Circuit Judge.
_________________________________
On January 13, 2016, Marco Antonio Cortes-Gomez was indicted with two
codefendants on counts related to a methamphetamine conspiracy (“Cortes-Gomez I”).
His trial began on November 29, 2016. The interim included two superseding
indictments, dismissal of the indictment and the filing of a new one with identical charges
(“Cortes-Gomez II”), the addition of two codefendants, and various continuances and
delays that the district court found to be excluded under the Speedy Trial Act of 1974, 18
U.S.C. § 3161 et seq. (“STA”). Ultimately, 329 days passed between Mr. Cortes-
Gomez’s arraignment and the beginning of his trial.
A jury found Mr. Cortes-Gomez guilty on both counts. He appeals, contending
that the delay between his arraignment and trial violated his statutory and constitutional
rights to a speedy trial. He also challenges the district court’s refusal to provide his
requested jury instruction regarding accomplice testimony and its application of two
sentencing enhancements. We affirm.
I.
Only the procedural facts relevant to our analysis are recounted here. Mr. Cortes-
Gomez, Ms. Juanita Garcia, and Ms. Brenda Sanders were indicted on January 13, 2016
for their respective involvement in a conspiracy to distribute methamphetamine. Trial
was initially set for March 29, 2016, then continued to April 6, then to July 19. Both Ms.
Sanders and Ms. Garcia entered guilty pleas, but two additional codefendants were
included in the first superseding indictment on March 29: Mr. James Ross and Mr. Robert
Worthington. On May 19, Mr. Worthington was the last codefendant arrested and
arraigned.
2
On June 21, the district court granted Mr. Worthington an “ends-of-justice”
continuance under 18 U.S.C. § 3161(h)(7)(A), setting a new trial date of October 11. The
court made written findings to justify this delay, including the need to allow counsel for
Mr. Worthington and Mr. Ross adequate time to prepare for trial. The court declined to
calculate Mr. Cortes-Gomez’s Speedy Trial Act deadline until it ruled on his renewed
motion to sever, which it then denied on July 19. At that time, the district court excluded
two intervals from Mr. Cortes-Gomez’s STA clock which are the subject of this appeal:
(1) the time between defendant’s arraignment and that of his last codefendant, Mr.
Worthington (January 21 to May 19), and (2) the delay stemming from Mr.
Worthington’s ends-of-justice continuance (July 19 to October 11). Mr. Cortes-Gomez
repeatedly and zealously asserted his rights to a speedy trial, including moving for
severance from his codefendants on two separate occasions.
Mr. Cortes-Gomez’s trial began on November 29 and all four of his former
codefendants testified against him. Each co-conspirator testified about entering into plea
agreements with the government and/or expecting to benefit by testifying against
defendant. Mr. Cortes-Gomez requested a specific jury instruction for evaluating
accomplice testimony, but the district court rejected it in favor of this court’s pattern
instruction.
Mr. Cortes-Gomez was convicted by the jury on both counts. At sentencing, the
district court overruled his objections to the two sentencing enhancements applied in the
Presentence Investigation Report (“PSR”): a four-point enhancement for being the
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organizer or leader of the enterprise and a two-point enhancement for engaging in
criminal conduct as his livelihood. The PSR determined defendant’s enhanced offense
level to be 44, with a guideline imprisonment sentence of life. The district court varied
below the guideline range to avoid an unwarranted sentencing disparity between
defendant and his co-conspirators, sentencing Mr. Cortes-Gomez to concurrent sentences
of 240 months imprisonment on Count 1, conspiracy to possess with intent to distribute
methamphetamine, and 294 months imprisonment on Count 2, attempted possession with
intent to distribute 500 grams or more of methamphetamine.
Mr. Cortes-Gomez raises several issues on appeal, and we address each one in
turn.
II.
SPEEDY TRIAL
We review the district court’s compliance with the legal requirements of the
Speedy Trial Act de novo and its factual findings for clear error. United States v. Larson,
627 F.3d 1198, 1203 (10th Cir. 2010). “When the statutory factors are properly
considered, and supporting factual findings are not clearly in error, the district court’s
judgment of how opposing considerations balance should not lightly be disturbed.”
United States v. Vogl, 374 F.3d 976, 982 (10th Cir. 2004) (brackets and citation
4
omitted).1 Likewise, “[w]e review a defendant's claim under the Sixth Amendment's
Speedy Trial Clause de novo, accepting the district court's factual findings unless they are
clearly erroneous.” United States v. Medina, 918 F.3d 774, 788 (10th Cir. 2019)
(citations omitted).
A. Speedy Trial Act
The Speedy Trial Act requires that a defendant be tried within seventy days of the
filing of the indictment or the defendant’s first appearance, whichever occurs later. 18
U.S.C. § 3161(c)(1). This seventy-day period is subject to various exclusions of time
under 18 U.S.C. § 3161(h). As relevant here, § 3161(h)(6) (the “codefendant
subsection”) excludes 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.” Another provision, § 3161(h)(7) (the “ends-of-justice subsection”),
excludes “[a]ny period of delay resulting from a continuance granted by any judge … if
the judge granted such continuance on the basis of his findings that the ends of justice
served by taking such action outweigh the best interest of the public and the defendant in
a speedy trial.”2
1
Mr. Cortes-Gomez asserts a different standard of review for district courts’
decisions to grant ends-of-justice continuances under § (h)(7), which depends on the
nature of what is being reviewed. Aplt. Br. at 19–20. Because we conclude that we
should evaluate the propriety of the continuance in question under § (h)(6), however, we
need not address this proffered standard.
2
When we issued several of the cases cited herein, including United States v.
Theron, 782 F.2d 1510 (10th Cir. 1986), and United States v. Vogl, 374 F.3d 976 (10th
Cir. 2004), the ends-of-justice subsection was set forth in 18 U.S.C. § 3161(h)(8) and the
5
Mr. Cortes-Gomez challenges the excludability of two delays: (1) the time
between Mr. Cortes-Gomez’s and his last codefendant’s arraignments in Cortes-Gomez I
(January 21 to May 19), and (2) the delay stemming from his codefendant’s ends-of-
justice continuance (July 19 to October 11). Because both delays are attributable to
codefendants, they are properly analyzed under § 3161(h)(6) .3 See, e.g., United States v.
Zar, 790 F.3d 1036, 1043 (10th Cir. 2015) (“[I]n light of its denial of the severance
motion, the court held that the [defendants] remained subject to § 3161(h)(6) . . . .”). The
general rule under this provision is that all defendants who are joined for trial fall within
the speedy trial computation of the latest codefendant joined. United States v. Margheim,
codefendant subsection in § 3161(h)(7). The statute has since been amended and the
subsections re-codified in § (h)(7) and § (h)(6) as described above. The language in both
provisions remained the same. To avoid confusion, throughout this opinion we
consistently refer to the subsections as they are currently numbered, even when
discussing cases prior to the statute’s amendment.
3
The district court’s order denying Mr. Cortes-Gomez’s renewed motion to sever
creates some confusion about the provision(s) on which it relied. On appeal, Mr. Cortes-
Gomez argues that we should review the delay under the ends-of-justice subsection
because that is what the district court expressly invoked. See, e.g., Aplt. Reply Br. at 3–
5. However, because our case law is clear that the codefendant subsection is the proper
statutory provision under which to consider the application of Mr. Worthington’s ends-
of-justice delay to Mr. Cortes-Gomez, we will restrict our analysis accordingly. See, e.g.,
Theron, 782 F.2d at 1513 (explaining that time excluded on account of codefendants
must be evaluated under the codefendant subsection instead of the ends-of-justice
subsection); United States v. Mobile Materials, Inc., 871 F.2d 902, 911 (10th Cir. 1989)
abrogated on other grounds by Bloate v. United States, 559 U.S. 196 (2010) (reviewing
Theron and reiterating that the codefendant subsection—not ends-of-justice—was the
correct statutory provision to regulate exclusions based on codefendant delay); see also
S.E.C. v. Chenery Corp., 318 U.S. 80, 88 (1943) (“[I]n reviewing the decision of a lower
court, it must be affirmed if the result is correct although the lower court relied upon a
wrong ground or gave a wrong reason.”) (quotation marks and citation omitted).
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770 F.3d 1312, 1318–19 (10th Cir. 2014). “When the delay is reasonable, an exclusion
for delay attributable to one defendant is applicable to all co-defendants.” United States
v. Thomas, 749 F.3d 1302, 1308 (10th Cir. 2014) (quotation marks, brackets and citation
omitted).
In determining whether delay attributable to a codefendant is reasonable, a court
must examine all relevant circumstances. Our circuit has articulated three factors
to guide district courts in this exercise: (1) whether the defendant is free on bond,
(2) whether the defendant zealously pursued a speedy trial, and (3) whether the
circumstances further the purpose behind the exclusion to ‘accommodate the
efficient use of prosecutorial and judicial resources in trying multiple defendants
in a single trial.’
Margheim, 770 F.3d at 1319.
“The obvious purpose behind [this] exclusion is to accommodate the efficient use
of prosecutorial and judicial resources in trying multiple defendants in a single trial.”
United States v. Theron, 782 F.2d 1510, 1514 (10th Cir. 1986). There is a “strong
presumption favoring trying properly joined defendants together.” Zar, 790 F.3d at 1043;
see also Zafiro v. United States, 506 U.S. 534, 537 (1993). “A single trial is ideal when
the government plans to recite a single factual history, put on a single array of evidence,
and call a single group of witnesses.” Margheim, 770 F.3d at 1319 (quotation marks and
citations omitted); see also United States v. Tranakos, 911 F.2d 1422, 1426 (10th Cir.
1990) (“[T]his is such a case [where a single trial is preferred], for the defendants were
charged with a single conspiracy.”). This inquiry is highly fact-sensitive. Margheim,
770 F.3d at 1320.
We are satisfied that the district court properly weighed the relevant factors and
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reached the correct results with respect to both exclusions challenged here. The parties
agree that the first two Margheim factors favor Mr. Cortes-Gomez; their disagreement
concerns the district court’s ultimate weighing of the factors and its exercise of discretion
in deeming the delays reasonable. The district court found the delays reasonable because,
although Mr. Cortes-Gomez was in custody4 and zealously pursuing a speedy trial, the
facts of this conspiracy would render two separate trials based on the same evidence an
inefficient use of prosecutorial and judicial resources.
A joint trial for a drug conspiracy is the type of efficient use of judicial resources
contemplated by the codefendant subsection, and there was every reason to believe that a
joint trial would be appropriate here. See id. at 1321 (“[W]hen feasible, courts prefer
joint conspiracy trials . . . .”). The district court reviewed the government’s theory of the
evidence and found that the government planned to recite a single factual history, put on
a single array of evidence, and call a single group of witnesses. Aplt. Supp. App., Vol. II
at 76. This fact-sensitive finding was not clearly in error. The reality that a joint trial did
not take place because Mr. Cortes-Gomez’s codefendants eventually entered guilty pleas
does not invalidate the district court’s original belief that a joint trial would be
appropriate in this drug conspiracy case. This distinguishes Mr. Cortes-Gomez’s
situation from the cases he cites on appeal, in which the district courts had prospective
4
Because the parties agree that the first Margheim factor weighs in Mr. Cortes-
Gomez’s favor, we need not examine how the analysis of Mr. Cortes-Gomez’s restricted
liberty is impacted by the existence of an ICE detainer which could be exercised against
him. But see United States v. Mayes, 917 F.2d 457, 460 (10th Cir. 1990) (“One important
factor is that they were already incarcerated, so the delay did not affect their liberty.”).
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notice that joint trials would probably not be practicable. See, e.g., United States v.
Messer, 197 F.3d 330, 338 (9th Cir. 1999) (concluding preliminary circumstances
strongly suggested the codefendant would not be available for trial for a significant
length of time, if ever, so delay would not increase the likelihood of joint trial).
The district court properly considered the relevant statutory factors in finding that
all codefendant delays were reasonable in the circumstances of this case. We see no
reason to disturb the court’s judgment balancing the opposing considerations, and we
therefore affirm its conclusion that both delays were reasonably excluded under the STA.
B. Sixth Amendment
The Sixth Amendment guarantees defendants in all criminal prosecutions the right
to a speedy and public trial; however, it is “impossible to determine with precision when
the right has been denied.” Barker v. Wingo, 407 U.S. 514, 521 (1972). We balance four
factors in making this determination: (1) the length of delay, (2) the reason for the delay,
(3) the defendant’s assertion of his right, and (4) prejudice to the defendant. United
States v. Black, 830 F.3d 1099, 1111 (10th Cir. 2016).
“The threshold factor to consider is the length of the delay. We need only inquire
into the other factors if the period of delay is presumptively prejudicial.” United States v.
Lugo, 170 F.3d 996, 1002 (10th Cir. 1999) (quotation marks and citation omitted); see
also Medina, 918 F.3d at 780 (10th Cir. 2019) (“Simply to trigger a speedy trial analysis,
an accused must allege that the interval between accusation and trial has crossed the
threshold dividing ordinary from ‘presumptively prejudicial’ delay”) (brackets and
9
citation omitted).
While we have observed that there is no bright line beyond which pretrial delay
will trigger a Barker analysis, we are also cognizant of the Supreme Court’s
observation in Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120
L.Ed.2d 520 (1992), that depending on the nature of the charges, the lower courts
have generally found postaccusation delay presumptively prejudicial at least as it
approaches one year.
United States v. Gomez, 67 F.3d 1515, 1521 (10th Cir. 1995). “[T]he length of delay that
will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of
the case. To take but one example, the delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407
U.S. at 530–31.
In this circuit, the threshold essentially rests at the one-year mark itself. See, e.g.,
United States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006) (reasoning that a
delay of fourteen months, but not eleven, “might qualify as presumptively prejudicial”);
United States v. Nixon, 919 F.3d 1265, 1269 (10th Cir. 2019) (“Because this period
exceeded one year, it created a presumption of prejudice, triggering further scrutiny.”)
(emphasis added); United States v. Banks, 761 F.3d 1163, 1183 (10th Cir. 2014)
(referencing the “presumption of prejudice that attaches to delays greater than one year”)
(emphasis added); Margheim, 770 F.3d at 1326 (referencing “the bare minimum [of a
year] needed to trigger judicial examination”) (citation omitted, alteration in original,
emphasis added); United States v. Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010) (“[T]he
length of the delay crossed the threshold from “ordinary” to “presumptively prejudicial”
because it was more than a year . . .”) (emphasis added). The ten- and one-half-month
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delay at issue here does not meet this threshold of presumptive prejudice, particularly
considering the nature of the charges: a conspiracy, which entitles toleration of longer
delay. Because we hold that the delay is not presumptively prejudicial, we need not
inquire into the other factors.
III.
JURY INSTRUCTIONS
“This court reviews the district court’s refusal to give a proposed instruction for
abuse of discretion, but considers de novo whether the jury instructions, as a whole,
correctly state the law.” Vehicle Mkt. Research, Inc. v. Mitchell Int'l, Inc., 839 F.3d
1251, 1256 (10th Cir. 2016).
Mr. Cortes-Gomez requested a very particular jury instruction which emphasized
that an accomplice who testifies “has a motive to falsify or exaggerate his or her
testimony against the defendant.” Rec., Vol. I at 194. He argues on appeal that because
this instruction was refused, the jury here was not properly instructed. We disagree.
The instruction the district court actually gave here followed this court’s pattern
instruction5 and satisfied our rule requiring otherwise uncorroborated accomplice
5
The pattern instructions are prepared by the Criminal Pattern Jury Instruction
Committee of this court and were most recently updated in February 2018. The Judicial
Council of the Tenth Circuit has authorized distribution of these instructions to the
District Judges for their aid and assistance; however, “this resolution shall not be
construed as an adjudicative approval of the content of such instructions, which must
await case-by-case review by the Court.” Judicial Council of the Tenth Circuit
Resolution, September 1, 2005.
11
testimony to be accompanied by proper cautionary instructions. See Tenth Circuit
Criminal Pattern Jury Instruction § 1.14; United States v. Owens, 460 F.2d 268, 269 (10th
Cir. 1972) (“The rule is established in this Circuit, however, that the court must instruct
the jury that testimony of accomplices must be carefully scrutinized, weighed with great
care, and received with caution.”); Aple. Br. at 46 (the jury instruction given by the
district court advised “[y]ou should receive [testimony from an accomplice] with caution
and weigh it with great care.”). In contrast to the cases cited by Mr. Cortes-Gomez, the
jury here was given a specific cautionary instruction regarding accomplice testimony in
addition to an instruction regarding witness credibility generally. Compare Rec., Vol. I
at 237 (cautionary accomplice instruction) and 241 (witness credibility instruction) with
United States v. Hill, 627 F.2d 1052, 1054 (10th Cir. 1980) (instruction regarding witness
credibility in general was insufficient when accomplice testimony was uncorroborated;
proper cautionary instruction required) and Owens, 460 F.2d at 269 (conviction based on
uncorroborated accomplice testimony without cautionary instruction was plain error).
The district court did not err in holding that this instruction “sufficiently communicated
that the jury should receive and consider accomplice testimony cautiously.” Rec., Vol. I
at 453.
IV.
SENTENCING ENHANCEMENTS
“When reviewing the district court’s calculation of the guidelines, we review legal
questions de novo and factual findings for clear error, giving due deference to the district
12
court’s application of the guidelines to the facts.” United States v. Halliday, 665 F.3d
1219, 1222–23 (10th Cir. 2011) (quotation marks and citation omitted). Factual findings
are clearly erroneous only if they are without factual support in the record or if this court,
considering all the evidence, is left with a definite and firm conviction that a mistake has
been made. Zar, 790 F.3d at 1046.
If the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.
Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985).
A. Aggravating Role Adjustment
Mr. Cortes-Gomez appeals the application of a four-point enhancement based on
his role as “an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). He need only have
managed or supervised one of his co-conspirators to qualify for this enhancement. Id.
cmt. n.2.
The district court found that this conspiracy included at least five participants, that
Mr. Cortes-Gomez explicitly recruited and directed at least one of the other participants,
and that he “was situated at the upper end, or at least the upper ends, of a vertically
integrated drug-trafficking organization.” Rec., Vol. III at 40. Even Mr. Cortes-Gomez
acknowledges on appeal that “there was testimony that [he] directed [Ms.] Morales to
perform certain actions.” Aplt. Br. at 53. The district court’s factual findings are
13
supported by the record and this enhancement was therefore properly applied.
B. Criminal Livelihood Enhancement
The district court also overruled Mr. Cortes-Gomez’s objection to the PSR’s two-
level enhancement for committing the offense as “part of a pattern of criminal conduct”
that he was “engaged in as a livelihood.” U.S.S.G. §§ 2D1.1. A “pattern of criminal
conduct” is defined as “planned criminal acts occurring over a substantial period of
time.” U.S.S.G. § 4B1.3 cmt. n.1. Such conduct is considered “engaged in as a
livelihood” if (i) income derived from the criminal activity in any twelve-month period
exceeded 2,000 times the then existing minimum wage, and (ii) the totality of the
circumstances indicates the criminal conduct was the defendant’s primary occupation in
that twelve-month period. Id. cmt. n.2.
Mr. Cortes-Gomez’s only argument on appeal, with no case law cited as support,
is that the district court erred in relying on “inconsistent” accomplice testimony to find
that Mr. Cortes-Gomez’s pattern of criminal conduct was “what [he] did for his living.”
Aplt. Br. at 55, 54. He presents his own and Ms. Morales’s testimony that he had other
employment as contradicting and thereby invalidating this finding. Yet the district court
expressly considered and rejected this testimony regarding his other employment, finding
it not credible “in light of the testimony to the contrary.” Rec., Vol. III at 48. “Our
deference to the district court is especially appropriate when the issue concerns questions
of a witness credibility.” United States v. Litchfield, 959 F.2d 1514, 1523 (10th Cir.
1992).
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The record contains sufficient support for the district court’s findings. This
includes Ms. Garcia’s testimony that she never knew Mr. Cortes-Gomez to have any
other employment during the multi-year period they were living together in a romantic
relationship, Rec., Vol. I at 325, Trial Transcript at 643–644, and Ms. Morales’s
testimony that Mr. Cortes-Gomez passed approximately $300,000 in drug proceeds
through her bank account, see id.., Vol. III at 22. The district court’s factual findings are
a permissible view of the evidence, and Mr. Cortes-Gomez’s alternative reading does not
render them clearly erroneous. See Anderson, 470 U.S. at 574.
For all the foregoing reasons, we AFFIRM.
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