United States Court of Appeals,
Eleventh Circuit.
No. 95-3084.
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos MOSQUERA, Defendant-Appellant.
July 31, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-152-CR-Orl-22), Anne C. Conway, Judge.
Before TJOFLAT, Chief Judge, and HATCHETT and BLACK, Circuit
Judges.
PER CURIAM:
Appellant Carlos Mosquera was originally indicted on November
3, 1994, on one count of conspiracy to possess with intent to
distribute cocaine in violation of 21 U.S.C. § 846. He was
arrested on November 8, 1994. Appellant proceeded to trial, and
after a hung jury, the district court declared a mistrial on March
16, 1995. On March 23, 1995, the Government filed a superseding
indictment which included additional charges. Appellant proceeded
to trial on the superseding indictment on May 15, 1995, and was
convicted of conspiracy to possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846, possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2, and use of a communication facility in the commission
of a felony in violation of 21 U.S.C. § 843(b). He was sentenced
to 78 months' imprisonment and 4 years' supervised release.
Mosquera appeals his convictions and sentence.
Appellant contends the superseding indictment was issued more
than 30 days after his original indictment and arrest in violation
of the Speedy Trial Act, 18 U.S.C. § 3161(b), and must therefore be
dismissed under 18 U.S.C. § 3162(a)(1). A superseding indictment
that issues more than 30 days after the arrest, but before the
original indictment is dismissed, does not violate § 3161(b).
United States v. Orbino, 981 F.2d 1035, 1037 (9th Cir.1992), cert.
denied, 510 U.S. 893, 114 S.Ct. 256, 126 L.Ed.2d 208 (1993).
[T]he Speedy Trial Act does not guarantee that an arrested
individual indicted within thirty days of his arrest must, in
that thirty day period, be indicted for every crime known to
the government, failing which he may never be charged. In
short, the Speedy Trial Act is not a statute of limitations.
... [The applicable statute of limitations] specifies the
time within which an arrested indicted defendant may be
charged with additional crimes by superseding indictment.
United States v. Wilson, 762 F.Supp. 1501, 1502 (M.D.Ga.1991).1 It
is undisputed that the charges brought in the superseding
indictment are within the applicable five-year statute of
limitations.
Appellant's reliance on United States v. Van Brandy, 563
F.Supp. 438 (S.D.Cal.1983), is misplaced. In Van Brandy, the
district court dismissed counts added in a superseding indictment
where the government was in possession of all facts needed to
proceed with the superseding indictment, but did not file the
superseding indictment until the eve of trial. 563 F.Supp. at 441.
Contrary to Appellant's contention, the record reveals that the
1
Appellant's attempt to distinguish Wilson is not
convincing. That a mistrial due to a hung jury may have occurred
in the instant case is not relevant to whether a superseding
indictment may issue more than 30 days after original indictment
and arrest.
Government did not file the superseding indictment on the "eve of
trial" as in Van Brandy, but filed it almost two months before
retrial. Therefore, no Speedy Trial Act violation has occurred,
and Appellant's argument is without merit.2
Appellant argues that insufficient evidence exists to support
his convictions. Although sufficiency of the evidence is a
question of law subject to de novo review, in doing so, we must
view the evidence in the light most favorable to the Government to
determine whether the jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Morin, 33 F.3d 1351,
1352 (11th Cir.1994). "The Court need not exclude every reasonable
hypothesis of innocence or find guilt to be the only reasonable
conclusion." Id. (quoting United States v. Garcia, 13 F.3d 1464,
1473 (11th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 2723, 129
L.Ed.2d 847 (1994)). Viewing the evidence in the light most
favorable to the Government, we conclude that a reasonable jury
could find that the evidence establishes Appellant's guilt on each
charge beyond a reasonable doubt.
Appellant contends the district court erred in attributing 4
kilograms of cocaine to him in sentencing and in failing to
sentence him as a minimal participant, rather than as a minor
participant, under U.S.S.G. § 3B1.2. We review a sentencing
court's determination of the quantity of drugs involved in a
conspiracy for clear error. United States v. Alston, 895 F.2d
2
Further, we note that the Double Jeopardy Clause does not
prohibit the issuance of a superseding indictment after a
mistrial, even if it alters, adds, or deletes charges. United
States v. Corona, 804 F.2d 1568, 1570-71 (11th Cir.1986), cert.
denied, 481 U.S. 1017, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987).
1362, 1369 (11th Cir.1990). A sentencing court's determination of
the defendant's role as a "minor" or "minimal" participant in an
offense is also reviewed for clear error. Id. Having reviewed the
record, we find no error on the part of the district court.
AFFIRMED.