United States v. Calle

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 96-20475

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILSON CALLE,

Defendant-Appellant.

Appeal from the United States District Court
For the Southern District of Texas
August 6, 1997

Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Wilson Calle appeals his conviction for conspiracy to

distribute cocaine and marijuana. We affirm.

I
In August 1994, Wilson Calle was indicted along with five co-

defendants. Calle was named only in count two of the indictment,

which charged him and four of the co-defendants with conspiracy to

possess with intent to distribute cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. In the second

superseding indictment, filed in December 1995, the Government

amended count two, charging Calle and others with conspiracy to

possess with intent to distribute cocaine and marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.

At trial, the Government introduced evidence establishing that

Calle, on two occasions, collected drug money for Dwayne Strothers,

a cooperating co-defendant. The first such occasion occurred in

March 1994, when Strothers “fronted” co-defendant Antonio Gonzales

two kilograms of cocaine with the understanding that Gonzales would

pay him from the proceeds of future drug sales. When Gonzales--who

also testified against Calle--failed to make timely payment,

Strothers enlisted Calle to assist in collecting the money.

Strothers, Gonzales, and Calle eventually met in the presence of

Arturo Martinez, yet another cooperating Government witness. After

a couple of hours, Gonzales was able to procure the money, and he

paid it to Strothers in Calle’s presence. For his role in

collecting the money, Calle was paid $3000 by Strothers. A similar

situation unfolded a few weeks later, when Strothers fronted

cocaine to Martinez. Martinez thereafter failed to pay, and

Strothers again enlisted Calle to collect the money. Calle

confronted Martinez but apparently was unsuccessful.

On the basis of the above evidence, a jury convicted Calle on

count two. The district court sentenced him to 160 months of

imprisonment and 5 years of supervised release. Calle appeals.

Calle asserts that the evidence is insufficient to sustain his

conviction. Specifically, he points out that the indictment

charged him with conspiracy to traffick in cocaine and marijuana.

He admits that he may have been involved in the cocaine enterprise,

2
but insists that there is no evidence linking him to the marijuana

conspiracy. He argues that because he was unaware of an essential

part of the enterprise, i.e., the marijuana conspiracy, his

conviction must be reversed. See United States v. Conroy, 589 F.2d

1258, 1269 (5th Cir. 1979) (noting that to be convicted of

conspiracy, a defendant must be aware of the essential nature and

scope of the conspiracy).

Calle’s position has little merit, for the Supreme Court

rejected a similar argument in Griffin v. United States, 502 U.S.

46 (1991). In Griffin, one of the defendants was charged with

conspiring to defraud a federal agency, in violation of 18 U.S.C.

§ 371. The Government alleged that the conspiracy had two objects:

(1) impeding the efforts of the Internal Revenue Service (“IRS”) to

determine income taxes; and (2) impairing the efforts of the Drug

Enforcement Administration (“DEA”) to ascertain forfeitable assets.

Id. at 47. At trial, the Government presented evidence linking the

defendant to the IRS conspiracy, but failed to connect her to the

DEA conspiracy. Nevertheless, the Court affirmed the conviction,

holding that a general guilty verdict on a multiple-object

conspiracy may stand even if the evidence is insufficient to

sustain a conviction on one of the charged objects. See id. at 47,

60.

This case is indistinguishable from Griffin. As was the

defendant in Griffin, Calle was charged in the conjunctive with a

multiple-object conspiracy. The evidence was sufficient to connect

Calle to only one of the charged objects. Under Griffin, we must

3
affirm the conviction. See also United States v. Fisher, 22 F.3d

574, 576 (5th Cir. 1994) (applying the Griffin rule).

III

Calle also contends that the district court erred in denying

his motion to dismiss the indictment pursuant to the Speedy Trial

Act. This Court reviews the facts supporting a Speedy Trial Act

ruling for clear error and the legal conclusions de novo. See

United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994).

The Speedy Trial Act requires that federal criminal defendants

be tried within 70 non-excludable days from the filing date of the

indictment or from the date of the defendant’s initial appearance

before a judicial officer, whichever occurs later. See 18 U.S.C.

§ 3161(c)(1); United States v. Willis, 958 F.2d 60, 62 (5th Cir.

1992). The Act, however, specifies that certain days are to be

“excluded” from the 70-day calculation. See 18 U.S.C. §

3161(h)(1); United States v. Gonzales, 897 F.2d 1312, 1315 (5th

Cir. 1990).

Of particular importance to this case are those exclusions

resulting from the filing of pretrial motions. The Act excludes

“delay resulting from any pretrial motion, from the filing of the

motion through the conclusion of the hearing on, or other prompt

disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(F)

(“Subsection F”). The Subsection F exclusion applies in two

situations. First, if a motion requires a hearing, Subsection F

tolls the Speedy Trial clock from the date that the motion is filed

4
through the date that the court conducts a hearing on the motion--

even if the delay between the filing of the motion and the hearing

is unreasonable.1 See Henderson v. United States, 476 U.S. 321,

329-30 (1986); United States v. Johnson, 29 F.3d 940, 942-43 (5th

Cir. 1994). In this situation, Subsection F also implicitly

excludes the time after the hearing where a district court awaits

the filing of all post-hearing briefs and materials reasonably

necessary to dispose of the motion. See Henderson, 476 U.S. at

330-31; Johnson, 29 F.3d at 943. Once the court has received all

of the submissions, it is deemed to have taken the motion “under

advisement,” after which the court has a maximum of 30 excludable

days, pursuant to 18 U.S.C. § 3161(h)(1)(J) (“Subsection J”), to

decide the motion before the Speedy Trial clock begins to run. See

Henderson, 476 U.S. at 330-31; Johnson, 29 F.3d at 943.

Second, Subsection F tolls the Speedy Trial clock where a

motion does not require a hearing. See Henderson, 476 U.S. at 329;

Johnson, 29 F.3d at 943. In such a situation, Subsection F

excludes the time necessary for “prompt disposition,” which, under

Subsection J, may be no more than 30 days from the time the motion

is taken under advisement. See Henderson, 476 U.S. at 329-30;

Johnson, 29 F.3d at 943.

Finally, in a multi-defendant prosecution such as this one,

the Speedy Trial clock begins to run when the last co-defendant

makes his initial appearance in court. See United States v.

1
When counting days for Speedy Trial purposes, the filing date
of the motion and the date of the court’s disposition are
excludable. See Johnson, 29 F.3d at 943 n.4.

5
Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994). The excludable delay

of one co-defendant may be attributable to all defendants. See id.

Although 511 days passed between Calle’s original indictment

and the beginning of his trial, numerous motions tolled the Speedy

Trial clock for the vast majority of those days. Upon analyzing

the various motions, we conclude that only 69 non-excludable days

accrued before Calle was tried. Thus, we affirm.

The parties agree that the Speedy Trial clock did not begin to

run until October 4, 1994, when the latest co-defendant, Raul

Elizondo, made his initial appearance in court. Thereafter, two

(2) days accrued in the Speedy Trial calculation before the

Government’s motion to certify the case as complex, filed on

October 7, 1994, tolled the clock. From this date, numerous

overlapping motions tolled the clock pursuant to Subsection F. The

last of such motions was co-defendant Antonio Gonzales’s motion to

reduce bond, filed on December 12, 1994. No hearing was held on

this motion, and thus pursuant to Subsection J, it tolled the clock

for 30 days through January 11, 1995.

The Speedy Trial clock then ticked for eight (8) days until

January 20, 1995, when co-defendant Sergio Dominguez moved to

substitute his attorney. Pursuant to Subsection F, this motion

tolled the clock through February 3, 1995, when the district court

granted the motion. Thereafter, seventeen (17) non-excludable days

accrued before Dominguez’s motion to revoke his detention tolled

the clock from the filing date on February 21, 1995, through March

6
9, 1995, when the court denied the motion.

The clock remained tolled because on March 10, 1995, Dominguez

moved to adopt his co-defendants’ motions. While this motion was

pending and the clock tolled, Dominguez moved for pretrial

determination of entrapment on March 20, 1995. The entrapment

motion remained pending when Elizondo moved to revoke his detention

on April 14, 1995, and this motion tolled the clock through April

20, 1995, when the court denied the detention motion. Thereafter,

twenty-six (26) more non-excludable days lapsed before the

Government moved to dismiss its case against co-defendant Dwayne

Strothers on May 18, 1995.2

The Speedy Trial clock was still tolled by the motion to

dismiss when the district court, on May 25, 1995, issued a warrant

for the arrest of co-defendant Joe Burrell, who failed to appear on

that date. Burrell’s absence tolled the clock through August 29,

1995, when he was rearrested.3 On the same day that Burrell was

rearrested, Calle moved to dismiss the indictment on the grounds

that the delay in bringing him to trial violated the Speedy Trial

Act. Because a hearing was required, the clock remained tolled

until the court both held a hearing and denied the Speedy Trial

2
This calculation does not include May 16, 1995, when the
clock was tolled because of Calle’s rearraignment. See United
States v. Ortega-Mena, 949 F.2d 156, 158 (5th Cir. 1991) (holding
that the arraignment date is excludable under 18 U.S.C. §
3161(h)(1)).
3
Delay resulting from an unavailable defendant will toll the
Speedy Trial clock. See 18 U.S.C. § 3161(h)(3)(A); United States
v. Helms, 897 F.2d 1293, 1300 (5th Cir. 1990) (holding that one co-
defendant’s failure to appear tolled the clock for another co-
defendant pursuant to § 3161(h)(3)(A)).

7
motion on November 28, 1995.

The clock began to run after November 28, 1995, and sixteen

(16) non-excludable days accrued until Gonzales filed a motion on

December 15, 1995. That motion remained pending until the trial

date on January 9, 1996, and thus the Speedy Trial clock remained

tolled during that time.

Based on the above chronology, a total of sixty-nine (69) non-

excludable days passed between the last co-defendant’s initial

appearance in court and the beginning of Calle’s trial. Because

Calle was tried within 70 non-excludable days, we conclude that the

delay in bringing him to trial did not violate the Speedy Trial

Act.4

For the foregoing reasons, we affirm Calle’s conviction.

AFFIRMED.

4
The Government contends that the continuances granted by the
district court also tolled the Speedy Trial clock. See 18 U.S.C.
§ 3161(h)(8)(A); United States v. Jones, 56 F.3d 581, 583 (5th Cir.
1995). Because we hold that the various motions sufficiently
tolled the clock under the Speedy Trial Act, we need not reach the
issue whether the court’s continuances also tolled the clock.