United States v. William MontoyaUnited States v. William Montoya
The United States charged defendant William Montoya with conspiring with two other men, Jose Rios and Roberto Gonzalez, to possess cocaine with an intent to distribute it in violation of
I. FACTUAL BACKGROUND
On May 10, 1984, two Chicago police officers followed and thеn stopped Jose Rios at Chicago’s O’Hare Airport. Rios had just come in from Miami on a non-stop flight. He was carrying a maroon-colored duffel bag. Rios allowed the officers to search his bag. Their search uncovered a box filled with plastic bags of cocaine worth $500,000. The box was taped with tan-colored tape and was coated with coffee crystals. (Coffee crystals or other strong-smelling substances often are used in drug-smuggling operations to deter police dogs from sniffing out the presence of drugs.)
Five days later, on May 15th, the same two police officers followed and then stopped Roberto Gonzalez at O’Hare Airport as he arrived on a non-stop flight from Miami. Gonzalez was carrying a red-colored duffel bag of the same size and shape as the one Rios had carried five days earlier. Gonzalez allowed the officers to search his bag. Their search uncovered a box filled with plastic bags of cocaine worth $2 million. The box was taped with tan-colored tape and was covered with coffee crystals.
The evidence at trial showed how defendant Montoya was linked to Rios and Gonzalez. Much of this evidence came from Gonzalez’s testimony. Gonzalez testified that he and Rios worked together as security guards at an apartment building in Miami Beach, Florida. They became friends and used drugs together. Rios told Gonzalez that he was going to quit working as a security guard and work for his uncle instead. Rios’s uncle was Montoya, who lived in the apartment building the two men guarded. Rios told Gonzalez he was going to deliver cocaine to a Chicago contact for his uncle. Gonzalez told Rios he “wanted to be in that line of work.”
Rios eventually introduced Gonzalez to his uncle Montoya. Gonzalez learned the cocaine-delivery procedures from Rios and was instructed by Montoya on other specifics. Gonzalez made his first cocaine delivery to the Chicago contact in April 1984. Gonzalez made two more trips to Chicago later that month. But on Gonzalez’s fourth trip to Chicago, on May 15th, he was arrested. He did not know at the time of his arrest that Rios had been arrested five days earlier.
When Gonzalez was arrested, and was informed that Rios had been arrested, he agreed to cooperate with the policе. The plastic bags of cocaine in the box in his duffel bag were replaced with plastic bags of flour. The box was resealed. The police instructed Gonzalez on the new delivery procedures. They were prepared to observe and supervise Gonzalez and record any telephone conversations he might have with Montoya in Florida. Gonzalez went to the delivery site, but found nobody there— his police questioning and other preparations had consumed five hours of time. Gonzalez made a telephone call to Montoya from a pay telephone. Gonzalez told Mon
At the wrong Holiday Inn Gonzalez received a telephone call from his wife. She told him that Montoya was trying to find him and that he did not have enough quarters to continue searching for Gonzalez from the pay phone he was at in Florida. She told Gonzalez to stay where he was so that he could receive a phone call from Montoya. Gonzalez then received a call from Montoya, which set off a series of telephone calls between Gonzalez, Montoya, and the Chicago contact. A second delivery was attеmpted late that night but failed. Gonzalez had a number of additional conversations with Montoya the next morning. Montoya instructed him to attempt to meet the Chicago contact again. All of these conversations Gonzalez had with Montoya were recorded by the police. Gonzalez met with the contact, but the contact became suspicious and told Gonzalez to flee because “the Feds” had followed Gonzalez. Gonzalez ran away from the meeting and the police arrested the contact. Montoya, meanwhile, fled from Miami Beach to Colombia and became a fugitive from justice.
II. PROCEDURAL BACKGROUND
Over a year after Montoya fled to Colombia, he returned to the United States. On August 1, 1985, a warrant for Montoya’s arrest was issued and a complaint filed in the Northern District of Illinois. Four days later, on August 5th, Montoya was arrested in the Western District of Texas. The Western District of Texas filed a complaint against Montoya on the day of his arrest and indicted him the following day. A week later, on August 13th, Montoya made his initial appearance before a United States magistrate in Texas. He received an explanation of the charges against him originating in the Northern District of Illinois. After another week, on August 21st, a United States magistrate in Texas ordered that Montoya’s removal to the Northern District of Illinois be stayed pending disposition of the charges against him in the Western District of Texas.
Later, on November 1st, Montoya was arraigned on the Texas charges. After two more weeks, on November 14th, he was indicted on the Illinois сharges. A month later, on December 11th, Montoya entered into a plea agreement on the Texas charges and was sentenced. About two weeks later Montoya was transported to Chicago and arraigned on the Illinois charges on December 24th. On January 9, 1986, the district judge in Illinois set the case to go to trial on March 10th. He also set a motions schedule that required Montoya to file all pretrial motions by January 22nd. Montoya went to trial on the Illinois charges on March 10th. He was convicted by a jury of some of the counts in the Illinois indictment and subsequently sentenced on his conviction on May 15, 1986.
III. DISCUSSION
Montoya’s main argument is that the government twice violated his right to a speedy trial under the Speedy Trial Act.
Our determination of whether the Speedy Trial Act was violаted requires us to review the district court’s interpretation of that act. Statutory interpretation is something a district court undertakes as a matter of law.
Atlantic City Municipal Utilities Authority v. Regional Administrator,
The Speedy Trial Act,
Montoya was arrested in Texas on August 5, 1985. His arrest on that date started the thirty-day clock running on the period of time between arrest and indictment.
3
Counting ahead thirty days, excluding the day of arrest but including Saturdays, Sundays, holidays, and the day on which the indictmеnt is handed down,
4
the Illinois indictment should have been returned no later than September 4th. But Montoya was not indicted on the Illinois charges until November 14th, a total of 101 days from his arrest. Montoya thus argues that
The government argues, however, that almost all of the 101 days between Montoya’s arrest on August 5th and his Illinois indictment on November 14th are excludable under
Some courts have indicated in a somewhat different setting that a trial “commences” for purposes of the Speedy Trial Act only when the voir dire process has begun. 6 If we were to rely on those courts’ definition of when a trial begins, then we would exclude none of the 101 days between Montoya’s arrest and his Illinois indictment. This is so because all of the time Montoya spent in Texas prior to his Illinois indictment was spent in preparation for trial or sentencing, not in actual trial. There never was a Texas trial because Montoya entered into plea negotiations with the government and pled guilty to one of the two counts brought against him in Texas. 7
We do not feel bound, however, by those courts’ interpretation of the word “trial.” They were faced with the question of when a trial commences under
Apart from those cases deciding when a trial commences under
The Ninth Circuit takes a broader approach to the meaning of “trial” under
argue[d] that we should adopt the Lumbard concurrence as the law of this circuit and hold that only the period of time which appellant is actually on trial can be excluded under this subsection.
Needless to say, Judge Lumbard’s observations are not binding on this court. His remarks read into the legislation language which is nowhere to be found. The particular subsection of the statute which sets forth the applicable excludable period reads: “delay resulting from trial with respect to other charges against the defendant.” [Emphasis added.] It does not limit the time to only that period during which the defendant is in court for jury selection, testimony of witnesses, arguments to the jury, return of verdict, etc. Anyone familiar with trial practice is aware of the fact that “delay resulting from trial” not only involves the trial itself but alsо the period of time utilized in making necessary preparation for trial. We find that it is within the sound discretion of the trial court judge to determine that period of delay resulting from trial with respect to other charges____
Id. at 109-10 (emphases in original).
We agree with the Ninth Circuit’s analysis. The delay resulting from trial with respect to other charges must necessarily encompass preparations for trial. This result does not detract from the underlying purpose of the Speedy Trial Act — to guarantee defendants a speedy trial. While Montoya was being held in Texas the Western District of Texas was required to indict Montoya within thirty days of his arrest and bring him to trial within seventy days of the indictment. Montoya’s right to a speedy trial was protected. He was guaranteed that within 100 days of his arrest he would be tried. At the conclusion of his Texas trial he would then be available and ready to defend the charges against him in Illinois. Alternatively, if the Western District of Texas did not try Montoya within 100 days, Montoya would be entitled to have that indictment dismissed under section 3162 of the Speedy Trial Act. He then would be available and ready to defend himself against the Illinois charges. Under either scenario, Montoya would not be languishing in a Texas prison or otherwise awaiting trial indefinitely, but would be moving toward final resolution of the Texas charges so that he could go on in a timely fashion to defend himself against the Illinois charges. 8
The plea bargaining process also can qualify as one of many “other proceedings” under the generic exclusion of
Montoya raises a second issue about the language of the exclusion under
However, our research into the other identified proceedings excluded under
From the legislative history two things are clear. One is that Congress did intend the various classifications of excludable delay in§§ 3161(h)(l-7) to be invoked automatically upon proof that the proceedings were pending. The other is that the “delay” referred to is not of the trial itself, but instead of the final date on which the trial must commence. In other words, Congress did not seek to determine the reality of whether or not a particular proceeding interfered with the commencement of trial; it used the word “delay” to denote a period of time during which the speedy trial clock would be stopped and the expiration of the 70-day period thereby postponed. By this means, Congress sought to structure a method of calculating time which would be reasonably and practically, although not necessarily directly, related to the just needs for pretrial preparation in a particular case.
Consequently, we reject [the prisoner’s] causation analysis and accept the proposition urgеd by the government that excludable time under§§ 3161(h)(l-7) is automatically triggered once the existence of the proceeding or condition referred to in a particular subsection is established.
United, States v. Cobb,
In sum, Montoya is correct in asserting that 101 days elapsed from the time of his arrest to the time he was indicted on the Illinois charges — seventy-one days over the maximum allowed under
Montoya argues, however, that even if the government did indict him within the appropriate time frame, it did not bring him to trial within seventy days of his indictment as required by
Montoya argues that the seventy-day clock ran from the time of his Illinois indictment on November 14,1985, to the time his trial commenced on March 10, 1986 — a total of 115 days, forty-five more than allowed under
The government, on the other hand, argues that the speedy trial clock did not start on the day Montoya was indicted, November 14,1985, but rather it started on the day Montoya was arraigned in Illinois, December 24, 1985. That would mean that seventy-six days elapsed from the time Montoya was arraigned on December 24, 1985, to the time he was brought to trial on March 10, 1986 — only six more than allowed under
Our first concern is to decide when the speedy trial clock started for purposes of the seventy-day period between indictment and trial.
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
Id.
The seventy-day period thus begins on the latter of two events: (1) the indictment or (2) the defendant’s appearance before a judge “of the court in which such charge is pending.”
Id.
It is clear that Montoya was indicted on November 14, 1985. The question remains whether Montoya’s appearance before a judge “of the court in which such charge is pending” occurred on August 13, 1985, when Montoya appeared before a federal magistrate in Texas to have the Illinois charges presented and explainеd to him or four months later on December 24, 1985, when Montoya was arraigned before a judge in Illinois. We believe that
This means that seventy-six days elapsed from the time Montoya was arraigned on December 24, 1985, to the time his trial commenced on March 10,1986. That is six more than
Montoya was arraigned in Illinois on December 24, 1985. Montoya's case was set for status before the district judge. On January 9, 1986, the district judge set a
The government argues, however, that the thirteen days between January 9th and January 22nd are excludable under
We have commented in three recent cases about the time spent in preparing pretrial motions under
It is clear from the cases “that time consumed in the preparation of a pretrial motion must be excluded — prоvided that the judge has expressly granted a party time for that purpose.”
Tibboel,
Therefore, the thirteen days between January 9th and January 22nd are excludable as delay resulting from other proceedings under
Besides complaining that the government violated the Speedy Trial Act, Montoya also argues that he was subjected to an unfair trial because the district judge improperly admitted hearsay evidence.
We will not necessarily reverse a district judge solely because he admits hearsay evidence not subject to any of the hearsay exclusions or exceptions. In the context of an evidentiary review, we must decide whether the district judge’s error was substantial or merely harmless. If the error is insubstantial, then the harmless error rule says that we must leave untouched the district court’s decision, even though it was incorrect.
Montoya contends: “The Government centered its entire case against Montoya around hearsay statements testified to by a DEA Agent, Dale Anderson, along with the testimony of an admitted drug courier Roberto Gonzalez.”
Agent Anderson interviewed defendant Rios several months after Rios had been caught at the airport with cocaine. Agent Anderson testified at trial, over Montoya’s objection, that Rios told him Montoya was a participant in the cocaine smuggling operation along with Gonzalez.
There seems to be no question that Agent Anderson’s testimony about what Rios said to him was hearsay. The government did not argue for, nor did the district judge identify, any exception to the hеarsay rule under which Agent Anderson’s testimony might qualify. Thus, as a matter of law, the district judge erred in admitting that evidence.
Immediately after Agent Anderson testified that Rios told him Montoya was part of the cocaine smuggling operation, Montoya objected. The district judge cautioned the jury at that time about its use of Agent Anderson’s testimony that Rios said Montoya was involved in the drug smuggling operation. At the close of the government’s case the district judge elaborated on his previous comment to the jury:
One morе thing. You will recall on Friday Mr. Anderson testified about a conversation that he had with Mr. Rios, and objection was made after he answered one or two questions about it. I sustained the objection with respect to any further questions because this was like Rios saying something about somebody else telling Mr. Anderson, which is like a double-hearsay, and there is no way the defense could test that because they didn’t have the other two people available to ask them whether or not they told Mr. Anderson that, or whether they told Mr. Rios that.
So you are to ignore any of that testimony you heard prior to the time I sustained the objection.
We have previously held that “[pjroper instructions will usually suffice to correct damage from any erroneously admitted evidence or evidence admissible only for a limited purpose.”
Cramer v. Fahner,
Moreover, the government presented substantial other evidence, particularly Gonzalez’s testimony, of Montoya’s participation in the drug smuggling operation. Montoya argues, however, that “Gonzalez’s testimony, by itself, was so lacking in creditability [sic] it cannot be considered independent and overwhelming evidence of guilt.” Montoya devoted a large part of his brief to attacking Gonzalez’s credibility and character, in an apparent attempt to show the weakness of Gonzalez’s testimony and the magnitude of the district judge’s error in admitting Agent Anderson’s hearsay testimony.
But “it is the jury’s special province to weigh conflicting testimony, determine credibility and draw factual inferences.”
United States v. Beck,
We hold that the admission of the hearsay evidence was harmless error because of the district judge’s cautionary remarks to the jury and because of the other overwhelming evidence, elicited through the testimony of Gonzalez and others, of Montoya’s participation in the cocaine smuggling operation.
Affirmed.
Notes
. The district judge subsеquently sentenced Montoya to ten years imprisonment, to be followed by five years of probation. This sentence was to be served concurrently with a seven-year sentence of imprisonment imposed on Montoya in the Western District of Texas for importing cocaine.
. Although it may seem inefficient not to allow Montoya to raise a speedy trial challenge by interlocutory appeal that could potentially result in a dismissal of the indictment and avoidance of trial, courts have unanimously held that there is no right to an interlocutory appeal of a motion to dismiss an indictment under the Speedy Trial Act.
United States v. Crawford Enterprises, Inc.,
.
Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.18 U.S.C. § 3161(b) (1982). 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 3 (1984) ("Committee Guidelines ") ("If the defendant is arrested or served outside the district in which charges are pending, the allowable time for the filing of an information or indictment still begins to run as a formal matter from the date of such arrest or service.”).
. Rule 45 states:
In computing any period of time the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday____ When a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.
. Montoya characterized this excludable period as "the pendancy [sic] of an unrelated charge in federal court in Texas.” The government similarly stated that "an unrelated cocaine importation charge was pending against defendant in federal court in Texas.”
. E.g., United States
v.
Manfredi, 722
F.2d 519, 524 (9th Cir.1983);
United States v. Howell,
. Montoya had been charged in Texas with importing cocaine, in violation of
. Our holding that the pending Texas charges against Montoya fall within the meaning of the word "trial” under
See, e.g., United States v. Oliver,
.
United States v. Rush,
. This delay results "from other proceedings concerning the defendant," but it is not the type of delay described in
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____