UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5584

JAIME RODRIGUEZ, a/k/a Jose Rivera,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, District Judge.

(CR-92-36)

Argued: January 29, 1998

Decided: June 29, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Edward Anthony Fiorella, Jr., HARKEY, LAMBERTH,

NYSTROM, FIORELLA & MORRISON, L.L.P., Charlotte, North

Carolina, for Appellant. Kenneth Davis Bell, OFFICE OF THE

UNITED STATES ATTORNEY, Charlotte, North Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jaime Rodriguez appeals his conviction for conspiracy to distribute

cocaine base (crack). He contends that the district court erred by

(among other things) admitting evidence of his prior bad acts. Rodriguez also claims that the evidence was insufficient to support his conviction and that he was denied his right to a speedy trial. Having

considered Rodriguez's arguments, we conclude that the district court

did not abuse its discretion in admitting evidence of his prior bad acts

because that evidence was necessary to prove the element of intent.

Further, we are convinced that the evidence at trial was sufficient to

prove beyond a reasonable doubt that Rodriguez joined a cocaine distribution conspiracy centered in the Western District of North Carolina. Moreover, we hold that Rodriguez was not denied his right to a

speedy trial because much of the delay in bringing him to trial

resulted from continuances granted to him and his co-defendants.

Accordingly, we affirm Rodriguez's conviction.

I.

Rodriguez was indicted on February 6, 1992, in the Western District of North Carolina for conspiracy to possess with intent to distribute crack. A superseding indictment handed down March 3, 1992,

named several new defendants. Trial was originally set for the March

1992 trial term, but Rodriguez's co-defendants repeatedly moved for

continuances and the trial was continued until the April 1993 trial

term. Rodriguez himself moved for two two-month continuances, asking that trial be continued from May to July 1992 and from July to

September 1992. Rodriguez went to trial on March 29, 1993.

At trial Emery Evans testified about his crack distribution operation in Mecklenburg and Union Counties in the Western District of

North Carolina. Evans testified that he originally obtained his cocaine

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from his friend Juan Escobar in North Carolina. Evans said that Escobar bought this cocaine from Jose Barrena, a drug dealer who operated out of Miami, Florida. Barrena, in turn, got much of this cocaine

from Guillermo Cortina, whose family had a large cocaine distribution operation in Miami. The cocaine Evans bought from Escobar was

packaged and distributed by Evans in North Carolina.

Although at first Escobar was Evans' only source for cocaine,

Evans soon began to buy cocaine directly from Barrena, to cut out the

middleman (Escobar). Cortina continued to supply Barrena with most

of the cocaine that was sold to Evans. Evans obtained this cocaine by

driving to Miami and then transporting it back to North Carolina

where it was put on the retail drug market.

Barrena also testified at Rodriguez's trial. Barrena explained that

he obtained most of the cocaine he sold to Escobar from Cortina. Barrena's contact with Cortina was through his (Barrena's) brother

Miguel, who knew Cortina from Columbia. Usually, Escobar would

travel to Barrena's apartment in Florida to buy the cocaine, which

Cortina had "fronted" to Barrena. After the transaction Barrena would

call Cortina, who would come to Barrena's apartment and pick up his

money. After Barrena began selling cocaine directly to Evans, he still

got most of his cocaine from Cortina.

In January 1992 DEA Agents arrested Evans in North Carolina.

Evans immediately began cooperating with the government. He called

Barrena and asked for 30 kilos of cocaine. Barrena decided to obtain

the 30 kilos from Cortina, because Barrena had recently delivered

some bad cocaine from Cortina to Evans, and Cortina had promised

to make it up to Evans on a later deal.

On January 29, 1992, Evans and the DEA agents went to Florida

to buy the cocaine from Barrena. Once he arrived in Miami, Evans

drove to Barrena's apartment. There, Barrena and his brother Miguel

were waiting for Evans in the parking lot. Barrena gave Evans 15

kilos of cocaine and told Evans that the other 15 kilos were in his car.

As they were walking to Barrena's car, the DEA agents arrested Barrena. Miguel escaped, however.

Barrena immediately began cooperating with the DEA. Cortina had

fronted him the 30 kilos of cocaine, so he called Cortina and told him

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to pick up his money. Barrena told DEA agents that Cortina said he

was bringing an associate with him to pick up the money.

Cortina arrived at Barrena's apartment with Rodriguez. When he

arrived on the scene, Rodriguez asked "Where's Miguel?" Cortina

and Rodriguez were then arrested by DEA agents. The agents found

a loaded semi-automatic pistol on Cortina and found two more semiautomatics in the car that Rodriguez and Cortina had driven to Barrena's apartment. After being read his Miranda rights, Rodriguez

admitted to the agents that he owned both of the firearms found in the

car.

At trial Angel Oropeza, a government informant, testified about his

drug activities in Miami with a man named "Jimmy." Oropeza testified that he met with Jimmy about buying some cocaine in late 1991.

Two other men accompanied Jimmy to that meeting. Oropeza later

identified Jimmy as Rodriguez from police photographs. At trial

Oropeza again identified Rodriguez as Jimmy and also identified Cortina as one of the men who accompanied Rodriguez to their 1991

meeting.

DEA Agent Jaime Camacho also testified at trial. Camacho

explained how he and Oropeza met with Jimmy's agent to arrange the

purchase of 50 kilos of cocaine. Jimmy's agent provided a sample

kilo to Camacho and then Oropeza and Jimmy attempted to work out

the details of the sale. The deal never was consummated, however,

apparently because Jimmy (Rodriguez) learned that he was being

watched by DEA agents.

The jury found Rodriguez guilty. After trial he pleaded guilty to

another charge of conspiracy to distribute cocaine arising out of his

activities in Miami (the indictment was handed down while he was

awaiting trial in North Carolina). Rodriguez was sentenced to 210

months in prison for the Florida conviction and later to 262 months

for the North Carolina conviction (his offense level having been

enhanced due to the Florida conviction).

Rodriguez filed his notice of appeal on July 10, 1995. His appeal

was delayed, however, because his lawyer was unable to obtain a

transcript of his trial from the court reporter despite our repeated

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directives to the reporter to produce the transcript. On June 19, 1997,

we remanded the case to the trial court for completion of the record

for appeal. That court adopted the transcript prepared for codefendant Cortina's appeal as an accurate transcript of Rodriguez's

trial (since Cortina and Rodriguez were tried together) and forwarded

it to this court on July 16, 1997. Thereafter, counsel were able to file

briefs, and argument was scheduled.

II.

A.

Rodriguez claims that the testimony concerning his prior drug dealing in Miami with Oropeza and Agent Camacho was evidence of

prior bad acts, which is generally inadmissible under Federal Rule of

Evidence 404(a). Of course, evidence of a defendant's prior bad acts

may be admitted to prove an element (such as intent) of the crime

charged, so long as the evidence is not used to show that the defendant possessed bad character and acted in conformity therewith. See

Fed. R. Evid. 404(b); United States v. Queen, 132 F.3d 991, 994 (4th

Cir. 1997), cert. denied, 118 S. Ct. 1572 (1998). Rodriguez contends

that the testimony about his prior drug dealing with Oropeza and

Agent Camacho was not admissible under Rule 404(b) because it was

unrelated to the North Carolina conspiracy. Here, Rodriguez confuses

"extrinsic" acts, which fall under Rule 404(b)'s prohibition on evidence of bad character, with "intrinsic" acts, which are not subject to

Rule 404(b). Prior acts are extrinsic if they are neither an element of

the crime charged nor "inextricably intertwined" with that crime. See

United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996). Intrinsic

acts, on the other hand, are actually part of the crime charged (such

as acts in furtherance of a conspiracy) or so closely related to the

crime that its "story" cannot be told without mentioning them. See id.

Here, there is no question that the prior bad acts about which Oropeza

and Agent Camacho testified were unrelated to the crime with which

Rodriguez was charged. Yet Rodriguez's prior acts were not rendered

inadmissible because they were extrinsic to the North Carolina conspiracy. That the acts were extrinsic simply meant that testimony concerning them had to meet the requirements of Rule 404(b) in order to

be admissible.

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Evidence is admissible under Rule 404(b) if: (1) it is relevant to an

issue other than character, (2) it is necessary to prove an element of

the crime charged, (3) it is reliable, and (4) its probative value is not

substantially outweighed by its prejudicial effect in violation of Federal Rule of Evidence 403. See Queen, 132 F.3d at 995. We review

the admission of evidence under Rule 404(b) for an abuse of discretion. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).

We conclude that the district court was well within its discretion

when it admitted the evidence of Rodriguez's prior drug activity

under Rule 404(b). Oropeza and Agent Camacho testified that Rodriguez had previously engaged in cocaine distribution with (among others) Cortina. This evidence that Rodriguez was involved in prior drug

transactions was probative of his intent to take part in the drug transaction between Barrena and Cortina on January 29, 1992.1 This evidence was necessary because the government had to prove that

Rodriguez was an active participant, and not an innocent bystander,

in the January 29 transaction in order to prove that he joined the

North Carolina cocaine distribution conspiracy. The evidence was

reliable because Oropeza twice identified Rodriguez. (Indeed, it is not

surprising that Rodriguez would have been known as"Jimmy" since

the name Jaime is Spanish for James.) Further, Rodriguez's claim that

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1 Of course, prior bad acts are not relevant to prove mental state if they

are too dissimilar to the crime charged. See Queen, 132 F.3d at 997; see,

e.g., United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992);

United States v. Sanders, 964 F.2d 295, 298-99 (4th Cir. 1992). This is

because evidence of dissimilar prior bad acts is just proof of bad character and the propensity to commit crime. See Queen, 132 F.3d at 996-97.

However, even if the prior bad acts proved at trial are not the same as

the crime with which the defendant is charged, the prior acts may be

admissible if the state of mind they evidence is the same state of mind

required to prove the crime charged. See id. Here, the mental state evidenced by Rodriguez's prior drug activities, the intent to engage in

cocaine distribution with others, is the same mental state the government

was trying to prove to convict Rodriguez of conspiracy. Thus, even

though Rodriguez's prior bad acts (arranging a drug sale) were slightly

dissimilar to the act he was charged with (collecting money after a drug

sale), the prior acts met the similarity requirement of Rule 404(b).

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the introduction of this evidence caused him unfair prejudice is completely unsupported.2

B.

Next, Rodriguez contends that the evidence at trial was insufficient

to support his conviction. We must uphold his conviction unless, taking all the evidence in the light most favorable to the government, a

reasonable jury could not have found the essential elements of the

crime beyond a reasonable doubt. See Glasser v. United States, 315

U.S. 60, 80 (1942). The elements of conspiracy to possess crack with

intent to distribute are: (1) an agreement between two or more persons

to possess crack with intent to distribute it, (2) knowledge of the conspiracy by the defendant, and (3) a knowing and voluntary decision

by the defendant to join the conspiracy. See United States v. Burgos,

94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert. denied, 117 S. Ct.

1087 (1997). Thus, to convict a defendant of conspiracy to distribute

crack, the government must prove beyond a reasonable doubt both the

existence of the conspiracy and the defendant's connection to the conspiracy. See id. at 858.

Rodriguez does not challenge the government's proof of the existence of the North Carolina conspiracy. Indeed, the evidence on this

point was overwhelming. Evans bought his cocaine from two suppliers, Escobar and Barrena, in North Carolina and Florida. Further,

although Barrena and his supplier, Cortina, operated out of Miami,

Evans's crack distribution occurred almost entirely in the Western

District of North Carolina.

Rodriguez argues that the evidence was insufficient to connect him

with the North Carolina conspiracy. But once the government has

proved the existence of a conspiracy, it only needs to establish a

"slight connection" between defendant and the conspiracy.3 Id. at 861.

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2 We have considered Rodriguez's other complaints about the admission of the Rule 404(b) evidence, including his challenge to the court's

limiting instruction, and we find them to be meritless.

3 Our use of the term "slight" does not lower the government's burden

to something less than "beyond a reasonable doubt," however. The word

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Thus, a defendant may be convicted of conspiracy"if he . . . understand[s] . . . [its] unlawful nature . .. and willfully joins in the plan

on one occasion, . . . even though he had not participated before and

even though he played only a minor part." Id. at 858 (internal quotation and citations omitted). Further, a defendant's connection to a

conspiracy may be proved by circumstantial evidence. See id. at 857-

58.

The trial court denied Rodriguez's motion to acquit based on: (1)

Rodriguez's arrival with Cortina at Barrena's apartment on January

29, 1992, where Barrena was to pay Cortina for the 30 kilos of

cocaine that Cortina had fronted to Barrena; (2) the question Rodriguez asked, "Where's Miguel?," at Barrena's apartment; and (3) Barrena's statement to DEA agents, after speaking with Cortina, that an

associate would accompany Cortina to pick up the cash at Barrena's

apartment. Rodriguez argues that this evidence was insufficient to

prove that he joined the North Carolina conspiracy. It merely puts him

at the scene of a crime and does not prove he was anything more than

an innocent bystander. There is more to the story, however. We conclude that other circumstantial evidence, coupled with the evidence

relied upon by the trial court, was sufficient to lead a reasonable jury

to conclude that Rodriguez joined the North Carolina conspiracy.

Rodriguez's mere presence at the scene of a drug-related transaction does not prove he was involved in a conspiracy. However, his

actions show that he was more than just an innocent bystander. First,

he drove Cortina to Barrena's apartment and brought firearms along

with him. Drug dealers often use firearms to protect their money and

drugs, and a jury could infer from their presence that Rodriguez knew

of the impending exchange of cash and brought the firearms along to

protect himself and Cortina after they obtained the cash. Second,

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"slight" does not describe the quantum of evidence that the government

must adduce to prove a defendant's connection with the conspiracy, but

rather the degree of the defendant's connection with the conspiracy. See

Burgos, 94 F.2d at 861. We use "slight" to emphasize that a defendant

may join a conspiracy without knowing its full scope, without participating in all of its overt acts, and without being a member from beginning

to end. See id.

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Rodriguez's question, "Where's Miguel?," indicates that Rodriguez

knew the exchange of cash was related to a drug transaction. Rodriguez's expectation that Barrena's brother Miguel, who was Barrena's

contact with Cortina, would be present at the meeting suggests that

Rodriguez knew why Barrena was paying Cortina. From this, a jury

could conclude that Rodriguez knew exactly why Cortina was going

to Barrena's apartment on January 29.

Of course, a defendant cannot be convicted of conspiracy simply

because he knows of its existence and its unlawful ends. The defendant must join the conspiracy to be convicted. Here, the testimony of

Oropeza and Agent Camacho concerning Rodriguez's prior drug

activities in Florida with (among others) Cortina was probative of

Rodriguez's intent. From this testimony a reasonable jury could conclude that Rodriguez was not just Cortina's driver, but rather Cortina's associate in the drug business. Indeed, that is what Barrena told

the DEA agents after he spoke with Cortina -- that an associate of

Cortina's would accompany him (Cortina) to Barrena's apartment.

This evidence (the Rule 404(b) evidence combined with the other evidence discussed above) was sufficient to lead a reasonable jury to

conclude, beyond a reasonable doubt, that Rodriguez knowingly and

voluntarily joined the North Carolina conspiracy by helping Cortina

obtain drug proceeds from Barrena.

Rodriguez argues that he could not have joined the North Carolina

conspiracy after Evans, Barrena and Escobar were arrested. On January 29, 1992, he argues, the other participants in the drug sale, Barrena and Evans, were not co-conspirators because they were working

for the government. One cannot be convicted of conspiracy if his only

"co-conspirator" is an undercover government agent. See United

States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995). However, the government's failure to prove that Rodriguez joined the conspiracy before

Evans, Escobar and Barrena were arrested does not render Rodriguez's conviction invalid. The government had to prove that Rodriguez joined the same conspiracy as Evans, Escobar and Barrena, but

it did not have to show that Rodriguez joined that conspiracy while

they were active. Rodriguez's conviction is valid because Cortina,

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another member of the North Carolina conspiracy, remained active in

the conspiracy on January 29, 1992.4

C.

Rodriguez also contends that the delay between his indictment and

trial constituted a denial of his statutory and constitutional rights to

a speedy trial. First, Rodriguez argues that the time lapse between his

indictment on February 6, 1992, and his trial on March 29, 1993, violated the Speedy Trial Act (STA), 18 U.S.C. § 3161, which requires

that defendants be tried within 70 days of indictment. The 70-day

STA clock does not run continuously, however. It is tolled during

delays attributable to continuances granted to either the defendant or

the government when the court finds that the continuance would serve

"the ends of justice." See § 3161(h)(8)(A). Further, each defendant's

STA clock stops for continuances that are properly granted to his codefendants. See United States v. Sarno, 24 F.3d 618, 622 (4th Cir.

1994); § 3161(h)(7). Moreover, when multiple defendants are joined

for trial, the STA clock does not start to run until the last co-defendant

has been indicted. See Henderson v. United States, 476 U.S. 321, 323

n.2 (1986); 18 U.S.C. § 3161(h)(7).

Here, beginning on March 24, 1992, the court granted successive

continuances to Rodriguez, his co-defendants and the government in

order to serve "the ends of justice." These continuances pushed the

defendants' joint trial date back from the April 1992 term to the April

1993 term. Rodriguez does not challenge any of these continuances

nor did he move to sever his co-defendants. As a result, Rodriguez's

STA clock ran for less than 70 days, up through March 24, 1992,

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4 Since we hold that the evidence was sufficient to convict Rodriguez

of conspiracy, we reject his claim that venue was improper. A conspiracy

may be prosecuted in any district in which an act in furtherance of the

conspiracy was committed. See United States v. Al-Talib, 55 F.3d 923,

928 (4th Cir. 1995). Here, even if the trial court erred by failing to

instruct the jury on venue, that error was harmless. By finding Rodriguez

guilty of joining a conspiracy whose members admitted to distributing

crack throughout the Western District of North Carolina, the jury surely

found that an act in furtherance of the conspiracy occurred in that district.

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before it was tolled. Therefore, his rights under the Speedy Trial Act

were not violated.

Rodriguez also claims that the fourteen-month delay between his

indictment and trial violated his Sixth Amendment right to a speedy

trial. We employ a balancing test to determine whether the delay in

bringing a defendant to trial violated the Sixth Amendment. We consider: (1) the length of the delay, (2) the reasons for the delay, (3) the

timeliness and vigor of the defendant's assertion of his right to a

speedy trial, and (4) the degree of prejudice the defendant suffered as

a result of the delay. See Doggett v. United States, 505 U.S. 647, 651

(1992); Barker v. Wingo, 407 U.S. 514, 530 (1972). For a defendant

to prevail the four factors must, on balance, weigh in his favor. See

United States v. Thomas, 55 F.3d 144, 148 (4th Cir. 1995). Applying

the test, we find no violation of the Sixth Amendment.

First, we consider the "threshold requirement" of whether the delay

from indictment to trial was "uncommonly long." United States v.

Grimmond, 137 F.3d 823, 827 (4th Cir. 1998). This factor weighs in

Rodriguez's favor. A delay of about one year in bringing a defendant

to trial is "unreasonable enough" to implicate the Sixth Amendment

speedy trial right. Thomas, 55 F.3d at 149 (quoting Doggett, 505 U.S.

at 652 n.1). As a result, we must consider the other three factors to

determine whether the delay violated that right. See Doggett, 505 U.S.

at 652; Barker, 407 U.S. at 530.

The second factor, the government's excuse for the delay, can be

valid, improper, or neutral. See Grimmond, 137 F.3d at 828. An

improper reason weighs heavily for the defendant, while a valid reason weighs for the government; a neutral reason weighs slightly

against the government because "the ultimate responsibility for such

[delays] must rest with the government rather than with the defendant." Id. (quoting Barker, 407 U.S. at 531). Here, most of the delay

in bringing Rodriguez to trial was attributable neither to Rodriguez

nor to the government but to continuances granted on the motion of

various co-defendants. Rodriguez objected to each motion, but the

continuances to serve "the ends of justice" cannot be blamed on the

government. In fact, the only continuance the government obtained on

its own motion was done at a co-defendant's request. Further, Rodriguez himself asked for and received two continuances which

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accounted for four of the first six months of his wait for trial. On balance then, the reason for the long (fourteen-month) delay between

Rodriguez's indictment and trial was neutral.

The third factor, invocation of the speedy trial right, weighs only

slightly in Rodriguez's favor. He asserted his right vigorously by

objecting to each continuance granted after September 1992. Of

course, up to that time Rodriguez himself had been among those

defendants seeking continuances that had caused the delay. The trial

court thus cannot be blamed for granting his co-defendants' later

motions for continuances over his objection.

Finally, the fourth factor, prejudice, weighs decidedly against

Rodriguez. Rodriguez offers no credible claim of prejudice resulting

from his wait to be tried. He claims that he was confronted with a new

indictment, in Florida, as a result of his wait for trial in North Carolina. Yet the government did not gain any tactical advantage from this

new indictment. Nor did it introduce evidence of that indictment at

trial. Although the government introduced evidence of Rodriguez's

drug dealing activities in Florida, that evidence was known to the

government well before the Florida indictment was handed down.

Weighing these four factors, we conclude that the delay of over a

year between Rodriguez's indictment and trial did not violate the

Sixth Amendment. Rodriguez waited a lengthy period for his trial, but

this wait was not too long because the interests of justice required the

trial court to grant continuances to several co-defendants. Although he

did eventually seek to protect his speedy trial right, he did so after

twice moving for (and receiving) continuances. Moreover, Rodriguez

shows no prejudice from the delay.5

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5 We also reject Rodriguez's claim that he was denied a speedy appeal

in violation of the Due Process Clause. We use the same balancing test

to evaluate the right to a speedy appeal as we do for the right to a speedy

trial. See United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir. 1984).

Under this test, a two-year delay between sentencing and appeal constitutes an inordinate delay, one sufficient to raise due process concerns.

See id. at 382. However, there was no prejudice from the delay here

because Rodriguez's appeal is lacking in merit. See id. at 382-83.

Although we recognize that every effort must be made to avoid unjustified delays in the appeals process, Rodriguez's speedy appeal right was

not violated in this case.

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III.

We have considered all of the other issues Rodriguez raises,

including his arguments about jury instructions, double jeopardy and

sentencing, and we find no merit to them. Therefore, his conviction

is

AFFIRMED.

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