### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk October 16, 1997
TO: All recipients of the captioned order and judgment RE: 96-1521, USA v. Dosal October 10, 1997 Please be advised of the following correction to the captioned decision: On the cover page of the decision, the district from which the appeal originated is incorrectly listed as the District of Wyoming. The correct district is Colorado. Please make the correction. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. SALVADOR DOSAL, Defendant-Appellant. No. 96-1521 (D.C. No. 96-CR-76-AJ) (D. Colo.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Salvador Dosal appeals his conviction in district c ourt of possession with-2-

intent to distribute a mixture or substance contain ing cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii). We affirm.
On February 21, 1996, Sergeant Boley from the Puebl o County Sheriff's Department stopped the car Mr. Dosal was driving be cause it had a cracked windshield. Mr. Dosal was taken into custody when he could not establish ownership and/or legal possession of the car or pro of of insurance, and after Sergeant Boley discovered an outstanding traffic warrant for Mr. Dosal.
After being placed under arrest on the outstanding warrant, Sergeant Boley asked Mr. Dosal whether he could search the car. M r. Dosal consented. With the aid of a narcotics detective dog, Sergeant Boley di scovered and seized fourteen packages containing approximately twelve kilograms of cocaine near the front fender area.
Mr. Dosal initially denied knowing anything about the drugs, and neither his nor his juvenile passenger's fingerprints match ed the fingerprints found on the packages containing the drugs. However, Mr. Dosal later told a Drug Enforcement Administration Agent he was aware the c ar contained drugs of some sort, as he got the car from a "Jimmy" in El Paso, Texas, and was to drive the car-3-

to Denver. Mr. Dosal also told the Agent he had ma de another such trip to Denver and thus believed the car either contained d rugs or the trip was a test trip. Mr. Dosal said he was to make $2,000 for the trip.
On February 22, 1996, Mr. Dosal was arrested on a w arrant and complaint charging him with conspiracy to distribute cocaine. He made an initial appearance before a Magistrate Judge on that same d ate. A preliminary hearing was conducted on February 27, 1996 and continued to March 1, 1996, at which time Mr. Dosal waived his right to a preliminary he aring.
On March 4, 1996, the original complaint was replac ed by an indictment charging Mr. Dosal with possession with intent to d istribute cocaine. Mr. Dosal was arraigned on the charges in the indictment on M arch 7, 1996 and entered a not guilty plea.
Mr. Dosal's first trial began on July 8 and ended w ith a hung jury/mistrial on July 12, 1996. Retrial commenced on August 12 and ended with a guilty verdict on August 14, 1996. On November 14, 1996, Mr. Dosal was sentenced to 150 months imprisonment. This appeal followed.-4-

Mr. Dosal, through counsel, raises two issues on ap peal. First, he claims he was denied a speedy trial in violation of the Speedy Trial Act, 18 U.S.C. § 3161 (1994). Second, he claims the jury was improperly instructed he could be criminally liable as an aider or abetter. We addre ss each issue in turn.
We review the district court's application of the l egal standards of the Speedy Trial Act de novo
. United States v. Spring , 80 F.3d 1450, 1456 (10th Cir.), cert. denied, 117 S. Ct. 385 (1996). The Speedy Trial Act prov ides: In any case in which a plea of not guilty is entere d, the trial of a defendant charged in an information or indictment w ith the commission of an offense shall commence within seve nty days from the filing date (and making public) of the informat ion or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, which ever date last occurs. 18 U.S.C. § 3161(c)(1). The issue here concerns th e date used to trigger the Act's seventy-day clock.
Mr. Dosal contends the seventy-day clock began on M arch 4, 1996 -- the day the indictment charging him with possession with intent to distribute cocaine was filed. He reasons that because he had made an initial appearance before a Magistrate Judge on the original complaint on Febru ary 22, 1996, the date the indictment was filed became the last operative date under the Speedy Trial Act.-5-

We are unpersuaded by Mr. Dosal's argument.
The provision of the Speedy Trial Act quoted above unambiguously ties the relevant appearance before a judicial officer to th e particular charge in the controlling information or indictment. Thus where, as here, a defendant has made an appearance related to charges other than those i n the indictment at issue, such appearance does not trigger the statutory timetable . Mr. Dosal's February appearance before the Magistrate Judge was related to the conspiracy charge in the original complaint. That complaint was replace d on March 4, 1996 with an indictment containing a different charge -- possess ion with intent to distribute. Mr. Dosal's first appearance concerning the charge in the indictment occurred on March 7, 1996. Accordingly, the seventy-day clock began ticking on the later of those two dates -- March 7.
When calculating includable time under the Speedy T rial Act, the date of the arraignment is excluded. See United States v. Olivio , 69 F.3d 1057, 1061 (10th Cir. 1995), cert. denied, 117 S. Ct. 265 (1996); United States v. Yunis , 723 F.2d 795, 797 (11th Cir. 1984). Thus, the elapsed time between March 7, 1996 and July 8, 1996, the date Mr. Dosal's first trial commenced, was 122 days. When computing the allowable delay in commencing trial, however, certain periods are-6-

statutorily excluded from the total elapsed time. 18 U.S.C. § 3161(h). For example, courts must exclude any "delay resulting f rom any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Id. § 3161(h)(1)(F).
In the case at hand, the government filed a motion to disclose grand jury transcripts on March 21, 1996. The district court granted that motion the following day, thus creating two excludable days inthe Speedy Trial Act computation. See Yunis , 723 F.2d at 797 (both the date on which an event occurs or a motion is filed and the date on which the court disposes of a motion are excluded). Through counsel, Mr. Dosal filed a numb er of pretrial motions beginning on March 29, 1996. The court ruled on al l pending motions during a hearing held on May 21, 1996. The excludable perio d from March 29 through May 21 is fifty-four days. The total excludable ti me therefore is fifty-six days, resulting in an allowable delay between Mr. Dosal's March 7 arraignment and his July 8 trial of sixty-six days. No violation of th e Speedy Trial Act occurred.
Moving to Mr. Dosal's second issue, he contends the district court improperly charged the jury that he could be found criminally liable as an aider and abettor because "the evidence utterly failed to proved [sic] that anyone other-7-

than [Mr. Dosal] committed an offense." We review a district court's decision whether to give a particular jury instruction for abuse of discretion. United States v. Swallow , 109 F.3d 656, 658 (10th Cir. 1997). Our determin ation of whether the jury instruction correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards is de novo
. Id.
In addition to charging Mr. Dosal with possession w ith intent to distribute cocaine, the March 4, 1996 indictment included a ch arge of aiding and abetting pursuant to 18 U.S.C. § 2 (1994). A violation of 1 8 U.S.C. § 2 is not punishable as a separate crime; rather, 18 U.S.C. § 2 provides a basis for punishing an aider and abetter the same as a principal who committed t he underlying substantive offense. See United States v. Langston , 970 F.2d 692, 705-06 (10th Cir.), cert. denied, 506 U.S. 965 (1992.) A conviction based on 18 U. S.C. § 2 requires proof (1) the defendant willfully associated himself witha criminal venture, i.e., possession of cocaine with intent to distribute; (2 ) the defendant participated in the venture as something that he wished to bring ab out; (3) the defendant sought by his action to make the venture succeed; and (4) someone other than the defendant committed the offense with the aid of the defendant. United States v. Yost , 24 F.3d 99, 104 (10th Cir. 1994).-8-

We previously have considered and rejected the argu ment that in order to satisfy the fourth requirement for § 2 liability th e government must allege and provide sufficient evidence to support the idea som e specific "other party" committed the underlying offense. Yost , 24 F.3d at 104. In this case, as in Yost , there was more than sufficient evidence to satisfy the elements of the substantive crime. Even if Mr. Dosal did not place the cocaine in the fender area of the car he was driving, someone did. The fact Mr. Dosal wa s driving a car in which narcotics were found together with the Agents' test imony Mr. Dosal admitted he was aware the car he had picked up from "Jimmy" in El Paso likely contained drugs, provided ample evidence from which a reasonable jury could have concluded Mr. Dosal aided someone in committing the offense for which he was charged. The aiding and abetting instruction to th e jury, which correctly stated the law pertaining to a conviction under 18 U.S.C. § 2, was proper.
For these reasons, we AFFIRM Mr. Dosal's conviction.

Entered for the Court
WADE BRORBY United States Circuit Judge