IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-5623

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEJOS GARCIA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

(June 30, 1993)

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Alejos Garcia was charged with conspiracy to possess

marijuana with intent to distribute in violation of 21 U.S.C. §

846. After a jury trial, he was convicted and sentenced to a

term of imprisonment of sixty-three months to be followed by a

five-year term of supervised release. Garcia appeals his

conviction. Finding no error, we affirm.

 I.

 In August 1990, Texas authorities in San Antonio began

surveillance of Alejos Garcia and numerous other individuals who

were suspected to be marijuana traffickers. In particular, the
 

1 The record does not indicate whether the two Garcias are

related.

2

authorities observed various activities in and around a

particular house in San Antonio. The authorities observed Alejos

Garcia and another man, Carlos Garcia,1 go in and out of the

residence. Appellant and Carlos Garcia were eventually

approached by police officers at a location other than the

residence. According to police, when questioned, appellant

appeared quite nervous and told numerous falsehoods regarding his

prior activities. Appellant consented to a search of his

automobile. Police found traces of marijuana scattered all over

the trunk of the car. Appellant was at that point arrested. 

Police also recovered a pager and $1,000 in cash from his person.

 The police then transported appellant and Carlos Garcia to a

location where surveillance officers had observed the two men

park a truck. Carlos Garcia admitted that the truck belonged to

him. A search revealed that marijuana and wood chips were

scattered in the truck. Police then searched the aforementioned

residence. There police discovered a number of large wooden

crates containing wood chips similar to the type found in Carlos

Garcia's truck. One of those crates contained several bundles of

marijuana wrapped in plastic. Other bundles were located

throughout the house. A total of 250 pounds of marijuana was

seized by police. 

 At trial, the owner of the house, Norma Satterlund,

testified that Matilde Benavides, one of Garcia's co-
 

2 A representative of the shipping company, Basse Truck

Lines, testified at trial and corroborated Satterlund's testimony

about the defendants' employment of the shipping company, which

was unaware of the illicit product that was being shipped.

 

3 A superseding indictment was returned by the grand jury on

April 24, 1991, although the superseding indictment simply added

charges against Garcia's co-defendants and in no way altered the

original charges against Garcia.

3

conspirators, had approached Satterlund and offered to pay her if

she would permit Benavides to store marijuana at her house. On

several occasions, Satterlund testified, Benavides and other men

would bring crates of marijuana to be stored at her house. 

According to Satterlund, the men would employ a legitimate

packing company to ship the crates to San Antonio, but would use

fictitious names on the shipping documents.2 Satterlund

testified that she observed Alejos Garcia at her house on several

occasions and that, in particular, Garcia was present during

conversations about marijuana. 

 

 II.

A. Speedy Trial Claims

A grand jury in San Antonio, Texas, indicted Garcia and his

co-defendants on November 28, 1990, for conspiring to possess

marijuana with the intent to distribute.3 Garcia was not

arrested until almost a year later, on November 20, 1991. On

December 17, 1991, Garcia waived his right to personally appear

at his arraignment. His trial was scheduled to occur on April 6,

1992. On April 3, 1992, Garcia moved to dismiss the indictment

on the ground that he was denied a speedy trial. The district
 

4 Rule 48(b) provides, in pertinent part, that "if there is

an unnecessary delay in bringing the defendant to trial, the

court may dismiss the indictment, information or complaint."

 

5 Section 3161(c)(1) provides that a trial "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" (emphasis added).

 

6 The Sixth Amendment provides a defendant with a right to a

"speedy trial." See Barker v. Wingo, 407 U.S. 514 (1972).

 

7 Because Garcia waived his right to appear at his

arraignment, we must treat his waiver as tantamount to a first

appearance.

4

court denied this motion. Almost seventeen months later, on

April 13, 1992, Garcia's trial began. Garcia argues that the

district court erred in not dismissing the indictment on the

ground that the Government denied Garcia his right to a speedy

trial under Rule 48(b) of the Federal Rules of Criminal

Procedure,4 the Speedy Trial Act, 18 U.S.C. § 3161(c)(1),5 and

the Sixth Amendment to the United States Constitution.6 

i) § 3161(c)(1) 

The Government, in its response to Garcia's motion to

dismiss the indictment, conceded that sixty-nine days had passed

between the date of Garcia's non-appearance at his arraignment,7

December 19, 1991, and the proposed date of trial, April 6, 1992. 

Garcia argues that the time between his arrest on November 20,

1991, and the arraignment on December 19, 1991, should be also

counted in calculating whether § 3161(c)(1)'s seventy-day period

was exceeded by the Government. We disagree. When an indictment
5

precedes an arrest -- as occurred in Garcia's case -- the first

appearance before a judicial officer of the court in which the

indictment has been filed is the triggering event. See 18 U.S.C.

§ 3161(c)(1). In this case, therefore, the time between Garcia's

arrest and his non-appearance at the arraignment should be

excluded in computing the seventy-day period. 

Although the trial was scheduled to occur on April 6, 1991,

the district court granted the Government a one-week continuance,

which tolled § 3161(c)(1)'s seventy-day clock during the period

of the continuance. According to Garcia, the continuance was

unjustified and, thus, wrongly extended § 3161(c)(1)'s timeperiod beyond seventy days. The Government appeared at docket

call on Friday, April 3, 1992, and announced ready for trial to

commence the following Monday. On April 6, however, the

Government announced to the district court that it had discovered

over the weekend that an essential witness was unavailable to

testify. The Government requested a continuance to secure the

presence of the witness. An evidentiary hearing was held on the

Government's motion, and the district court granted a one-week

continuance of the trial. 

Any period of delay resulting from the absence or

unavailability of an "essential witness" is excluded in computing

the seventy-day period. 18 U.S.C. § 3161(h)(3)(A). An essential

witness shall be considered absent "when his whereabouts are

unknown and, in addition, he is attempting to avoid apprehension

or prosecution or his whereabouts cannot be determined by due
6

diligence." 18 U.S.C. § 3161(3)(B). Ralph Sramek, the law

enforcement officer who had been in charge of securing the

Government's witnesses, testified that his procedure for

communicating with Norma Satterlund had been by leaving a phone

message at her residence with a relative and then receiving a

return call from Satterlund. Prior to April 3, 1992, Sramek had

not experienced any difficulty in having Satterlund return his

calls. During the week prior to April 3, Sramek spoke with

Satterlund on three separate days. On Thursday, April 2, Sramek

made arrangements with Satterlund to meet on the following day,

Friday, April 3, in San Antonio, Texas. 

 During their April 2 conversation, Satterlund informed 

Sramek that she had been continuously receiving a great deal of

pressure not to cooperate with the Government following her

testimony at the trial of Matilde Benavides, a coconspirator. 

According to Sramek, Satterlund claimed that her house had been

"shot up" with a firearm and that her car had been set on fire. 

She nevertheless told Sramek that she would appear on April 3 in

San Antonio to testify at Garcia's trial. After Satterlund

failed to appear at the appointment scheduled for the afternoon

of April 3, Sramek attempted to contact her on Friday, Saturday,

and Sunday, but Satterlund never returned the calls. 

In granting the Government's motion to continue the trial

for one week, the district court explicitly found that Satterlund

was unavailable and impliedly found that she was an "essential

witness" for purposes of the Speedy Trial Act. We believe that
7

the district court did not abuse its discretion in granting the

Government's motion for a continuance. Accordingly, there was no

violation of the Speedy Trial Act because the trial took place

within the seventy-day period. 

ii) The Sixth Amendment

Garcia further argues that the district court erred in

denying his motion to dismiss the indictment because, as he

alleges, he was denied a speedy trial as guaranteed by the Sixth

Amendment to the United States Constitution. The Sixth-Amendment

right to a speedy trial attaches at the time of arrest or

indictment, whichever comes first, and continues until the date

of trial. United States v. Walters, 591 F.2d 1195, 1200 (5th

Cir.), cert. denied, 442 U.S. 945 (1979). Constitutional speedytrial claims are resolved by examining the following four

factors: (i) the length of the delay; (ii) the reason for the

delay; (iii) when the defendant asserted his right; and (iv) the

prejudice to the defendant resulting from the delay. See Barker

v. Wingo, 407 U.S. 514, 530 (1972). In assessing prejudice, a 

court should look to the following three policies behind the

Sixth Amendment's guarantee of a speedy trial: (i) preventing 

oppressive pretrial incarceration; (ii) minimizing a defendant's

anxiety and concern; and (iii) assuring that a delay does not

impair the defense. See Millard v. Lynaugh, 810 F.2d 1403, 1406

(5th Cir.), cert. denied, 484 U.S. 838 (1987). 

 The first Barker factor -- whether the delay is of
8

sufficient length to be deemed "presumptively prejudicial," id.

at 1406 -- is a threshold consideration. In this case, the

delay from the time of the first formal federal charge, November

20, 1990, to the date of trial, April 13, 1992, was almost

seventeen months. This court has ruled that a thirteen-month

delay between indictment and trial is "presumptively

prejudicial." See Davis v. Puckett, 857 F.2d 1035, 1040-41 (5th

Cir. 1988). Accordingly, the delay in this case was also

"presumptively prejudicial." 

 Therefore, we turn to the other Barker factors: the reason

for the delay, the point at which the defendant asserted his

rights, and the prejudice (if any) to the defendant resulting

from the delay. See Barker, 407 U.S. at 530. The principal

reason for the delay resulted from the Government's inability to

apprehend Garcia, who was believed to be located in Laredo,

Texas. During the hearing on Garcia's motion to dismiss the

indictment, Sergeant Sramek testified concerning the efforts by

the Government to locate and arrest Garcia. According to Sramek,

he informed narcotics officers in Laredo, Texas, of the pending

warrant for Garcia's arrest. Furthermore, "on numerous

occasions," Sramek testified, he telephoned the narcotics

officers in Laredo and requested them to look for Garcia. The

officers in Laredo would then report back to Sramek regarding

their lack of success. The evidence reflects that the delay in

arresting Garcia was not caused by the Government's lack of

diligence. In addition, once Garcia was arrested, there was no
 

8 Because there was nothing approaching a Sixth Amendment

violation in this case, we likewise believe that there was no

violation of Rule 48(b) of the Federal Rules of Criminal

Procedure. This court has held that Rule 48(b) does not require

dismissal absent a Sixth Amendment violation, see United States

v. Hill, 622 F.2d 900, 908 (5th Cir. 1980), and that a district

court has extremely broad discretion regarding whether to dismiss

9

significant delay in commencing trial.

With respect to the next Barker factor, Garcia did not

complain about any trial delay until April 3, 1992, when he filed

a motion to dismiss the indictment. In addition, on February 27,

1992, Garcia himself moved to continue the trial. With respect

to the final Barker factor, Garcia argues that he was prejudiced

by the delay because his key witness was unable to recall

accurately "events of the distant past." The record, however,

does not indicate that the Government attempted any deliberate

dilatory tactics in order to hamper the defense, which militates

against a finding of prejudice. Barker, 407 U.S. at 531. 

Finally, we observe that Garcia has not alleged that he was

subjected to oppressive pretrial incarceration or that he was

anxious or concerned while awaiting trial. Indeed, he would be

hard pressed to make such an argument in view of the fact that he

was at large for an entire year following the return of the

indictment. 

Taking into account all of the Barker factors, we believe

that Garcia has failed to show that his constitutional right to a

speedy trial was violated. The district court, therefore, did

not err in denying Garcia's motion to dismiss the indictment on

constitutional grounds.8
under Rule 48(b), see United States v. Novelli, 544 F.2d 800, 803

(5th Cir. 1977).

10

B. Sufficiency of the Evidence

Garcia contends that the only evidence to support the

conviction was "impeached testimony from Norma Satterlund," an

accomplice witness. In addressing a claim of insufficient

evidence, we must ask "`whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.'" Guzman v. Lensing, 934 F.2d 80, 82

(5th Cir. 1991) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

 In effect, Garcia is arguing that the evidence is

constitutionally insufficient because Satterlund should not have

been believed. This court, however, is concerned only with the

sufficiency -- not the weight -- of evidence. See United States

v. Greenwood, 974 F.2d 1449, 1458 (5th Cir. 1992) ("whether

judges doubt the credibility of a witness, even an accomplice

witness cooperating with the Government, is beside the point in

reviewing a sufficiency claim such as this"). The credibility of

the witnesses and the weight of the evidence is the exclusive

province of the jury. Id. Particularly in view of the

corroborating evidence in this case, see supra Part I, we believe

that a rational jury could find beyond a reasonable doubt that

Garcia was a member of the conspiracy. 
 

9 We note that Garcia's attorney makes a reference in

Garcia's appellate brief to alleged "outrageous conduct" by the

Government in this case. Because of Garcia's counsel's failure

to adequately articulate his argument, we are unable to assess

this claim. However, our independent review of the record

reveals no such misconduct. 

11

C. Alleged Hearsay Testimony 

Finally, Garcia argues that Satterlund's testimony regarding

Garcia getting paid by a co-conspirator was improperly admitted. 

Satterlund's testimony reflects that she heard a discussion in

which one of the co-conspirators demanded money to pay himself

and others, including Garcia. At trial, Garcia failed to object

to this testimony on hearsay grounds. If there is no

contemporaneous objection to testimony whose admissibility is

contested on appeal, the "plain error" standard of review

applies. See United States v. Lechuga, 888 F.2d 1472, 1480 (5th

Cir. 1989). In order to constitute plain error, the error must

have been so fundamental as to have resulted in a miscarriage of

justice. Id. A statement by a coconspirator made "during the

course and in furtherance of the conspiracy" is not hearsay. 

FED. R. EVID. 801(d)(2)(E). Statements regarding the payment of

money for services rendered in accomplishing the illegal goals of

a conspiracy can be considered to be "in the course and in

furtherance of the conspiracy." See United States v. Miller, 664

F.2d 94, 98-99 (5th Cir.), cert. denied, 459 U.S. 854 (1981);

United States v. McGuire, 608 F.2d 1028, 1032-33 (5th Cir. 1979),

cert. denied, 444 U.S. 1092 (1980). Thus, there was no error in

admitting the testimony, plain or otherwise.9
12

 III.

 For the foregoing reasons, we AFFIRM Garcia's conviction.