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United States v. Duque

filed: August 7, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CARLOS ANTONIO DUQUE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona. D.C. No. CR-93-041-TUC-JMR. John M. Roll, District Judge, Presiding.

Before: Walter J. Cummings,*fn* Mary M. Schroeder and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Cummings.

Author: Cummings

CUMMINGS, Circuit Judge:

After being arrested in Arizona, indicted in California and subsequently re-indicted in Arizona, Carlos Antonio Duque was tried and convicted of possession with intent to distribute cocaine and conspiracy to do the same, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Duque was arrested while unloading cocaine from a truck that had been driven from Mexico to the United States at the behest of an individual working with federal drug agents.

Duque now appeals his conviction on numerous grounds, including the contention that the delay between his original California indictment and his eventual trial in the District of Arizona violated the Speedy Trial Act. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.

BACKGROUND

This case involves a large conspiracy to import substantial amounts of cocaine from Mexico to the United States. Government agents became aware of Duque's involvement in the conspiracy in the summer of 1992, and subsequently obtained a warrant to monitor his telephone calls. In the meantime, a confidential informant working under the supervision of federal agents set up a deal with members of the conspiracy to purchase cocaine. The deal transpired on August 20, 1992, when an individual hired by the informant drove a trailer containing concealed cocaine from Mexico into Arizona. Once the truck reached Arizona, other individuals drove it to a yard belonging to the informant.

The following day Duque arrived and, along with several others, began unloading the concealed cocaine into his truck. Surveilling agents, who were videotaping the events as they occurred, arrested Duque and, after reading him his Miranda rights in Spanish, asked the defendant if he was "of a mind to talk to [the agents]." Duque subsequently made several inculpatory statements.

Police had also obtained a search warrant for what they believed to be Duque's residence in Tucson. Pursuant to that warrant, in addition to searching the house, agents searched a motor home and a car found on the premises, and there recovered additional cocaine along with cash and drug packaging materials.

Duque and a number of alleged co-conspirators were indicted in Los Angeles on September 8, 1992, and Duque made his first represented appearance on that indictment on September 16, 1992. On December 21, 1992, after a number of preliminary motions had been ruled on, defense counsel for several of Duque's co- conspirators moved to transfer the entire case to the federal district court for the District of Arizona. Government prosecutors initially opposed the motion to transfer but eventually acceded. On February 3, 1993, with the consent of all the defendants including Duque, the California Judge transferred the case to the District of Arizona. Instead of merely ordering the transfer, however, the district Judge decided to dismiss the California indictment so that the government could re-indict the defendants in Arizona.

Duque was indicted in Arizona on February 3, 1993, the same date that the California district Judge approved the transfer, and made his first represented appearance on March 29, 1993. The original California indictment was dismissed on November 5, 1993, and Duque went to trial in the District of Arizona on January 25, 1994.

During voir dire of the jury, Duque requested dismissal for cause of a panel member who expressed strong feelings against drug sellers. The district Judge denied this request, and Duque exercised a peremptory strike to remove the panel member.

Duque was convicted and sentenced to life in prison, based on the district Judge's base calculation of 42 with a two-point increase for obstruction of Justice (an apparent attempt to orchestrate an escape), a three-point increase for his role in the ...


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