United States v. Mosquera
1996 U.S. App. LEXIS 24884 · 1996 WL 509468 · 95 F.3d 1012
July 31, 1996 · Docket 95-3084
Headnotes
Generated summaries- Headnote 1
Mosquera was indicted on November 3, 1994 and arrested on November 8, 1994. After a hung jury, the government filed a superseding indictment on March 23, 1995—over 30 days later—while the original indictment was still pending. The district court held that this filing did not breach the Speedy Trial Act.
- Headnote 2
The court explained that the Act creates a filing deadline only for the initial indictment and does not function as a limitation period for the government’s ability to bring additional charges later.
- Headnote 3
The record shows the superseding indictment was filed within the five‑year limitation period for the underlying cocaine offenses, satisfying the statutory time bar.
- Headnote 4
The district court’s conviction was affirmed because, after applying the de novo standard and the Government‑favorable view, the evidence could support a jury’s finding of guilt on each count.
- Headnote 5
While acknowledging that an innocent hypothesis may exist, the court held that the presence of any rational juror conclusion of guilt satisfies the sufficiency inquiry.
- Headnote 6
The district court attributed four kilograms of cocaine to Mosquera; the appellate court found no clear error in that factual determination.
- Headnote 7
Mosquera was sentenced as a “minor” participant. The appellate court affirmed that classification because the district court’s finding was not clearly erroneous.
- Headnote 8
Following a hung‑jury mistrial, the government filed a superseding indictment. The court held that double jeopardy did not bar the prosecution because jeopardy had not yet attached.
- Headnote 9
The government filed a superseding indictment on March 23, 1995, over two months after the original indictment and arrest, yet the district court proceeded to trial without dismissing the superseding indictment.
- Headnote 10
The court emphasized that the Act does not require every crime known to the government to be charged within the first thirty days after arrest.
- Headnote 11
The opinion noted that the charges in the superseding indictment were within the five‑year limitations period for the cocaine conspiracy.
- Headnote 12
The court rejected the argument that a hung‑jury mistrial prevented the government from filing a superseding indictment two months later.
- Headnote 13
Applying the de novo standard, the court found that a reasonable jury could have concluded the government proved each charge beyond a reasonable doubt.
- Headnote 14
The district court’s finding that Mosquera was responsible for four kilograms of cocaine was upheld because the appellate court found no clear error.
- Headnote 15
The appellate court affirmed the district court’s designation of Mosquera as a “minor” participant, finding no clear error in the role determination.
- Headnote 16
The government filed a superseding indictment on March 23, 1995—about six weeks after a hung‑jury mistrial and well beyond the thirty‑day filing window. The district court held that the filing did not contravene the Speedy‑Trial Act because the original indictment remained pending.
- Headnote 17
The opinion emphasized that the Act does not guarantee that an arrested individual must be indicted for every crime known to the government within the initial thirty‑day period; thus later superseding indictments are permissible.
- Headnote 18
The court noted that the charges in the superseding indictment were filed within the applicable five‑year limitations period for the cocaine conspiracy offenses.
- Headnote 19
The opinion reiterated that a hung‑jury mistrial does not create a jeopardy bar, allowing the government to pursue a superseding indictment on the same conduct.
- Headnote 20
Applying that standard, the court concluded that a reasonable jury could have found the defendant guilty on each count of conspiracy, possession, and use of a communication facility.
- Headnote 21
The opinion quoted Morin and Garcia, stating the court does not have to eliminate every plausible innocence theory to sustain a conviction.
- Headnote 22
The district court attributed four kilograms of cocaine to the defendant; the appellate court found no clear‑error abuse of discretion and affirmed the finding.
- Headnote 23
The appellate court examined the district court’s participant‑level classification and, finding no clear error, affirmed the designation of the defendant as a minor participant.
Opinion
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 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 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.
. . 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.
. . 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).