United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-1033

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United States of America, *

*

Appellee, *

*

v. *

*

Pablo J. Carrillo, *

*

Appellant. * Appeals from the United States

District Court for the Western

__________ District of Missouri.

No. 00-1039 [UNPUBLISHED]

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United States of America, *

*

Appellee, *

*

v. *

*

Rogelio Torres, *

*

Appellant. *

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Submitted: September 12, 2000

Filed: September 19, 2000

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Before RICHARD S. ARNOLD, FAGG, and BYE, Circuit Judges.

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PER CURIAM.

A jury convicted Pablo J. Carrillo and Rogelio Torres (collectively the

defendants) of conspiracy to possess with intent to distribute methamphetamine and

of aiding and abetting the attempt to possess with the intent to distribute

methamphetamine. The defendants appeal, and we affirm.

The defendants first contend the district court committed error in denying their

motions to dismiss for violation of the Speedy Trial Act, 18 U.S.C. § 3161(c) (1994).

We disagree. The Speedy Trial Act requires that criminal defendants be brought to trial

within seventy days of the later of the filing date of the information or indictment or the

defendant's first court appearance, see id., but excludes from the seventy-day

computation certain periods of delay, see id. § 3161(h). Here, the Government moved

for a continuance on the day the trial was to begin, and the district court granted the

motion, holding both that an essential Government witness was unavailable due to

health problems, see id. § 3161(h)(3) (Speedy Trial Act permits delay because of

unavailable essential witness), and that the ends of justice were served by granting the

continuance, see id. § 3161(h)(8)(A) (Speedy Trial Act allows delay if delay serves

ends of justice). As the defendants correctly contend, the Speedy Trial Act requires the

district court to state on the record the reasons why the ends of justice would be served

by granting a continuance, see id., and the district court failed to do so in this case.

There is, however, no similar requirement that the district court make such findings

when granting a continuance due to the unavailability of an essential witness, see id.

§ 3161(h)(3) – the district court's alternate rationale for granting the Government's

motion for continuance. See United States v. Hohn, 8 F.3d 1301, 1305 (8th Cir. 1993);

United States v. Turner, 203 F.3d 1010, 1017 (7th Cir. 2000). Thus, the defendants'

Speedy Trial Act claim fails.
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Having carefully reviewed the record and the parties' briefs, we also reject as

meritless the defendants' remaining contentions. First, the district court did not abuse

its discretion in instructing the entire jury panel that there was no reason to be

concerned for their safety after one juror asked the court clerk if he should have such

concerns. See United States v. Wiley, 997 F.2d 378, 383-84 (8th Cir. 1993) (standard

of review). Second, the district court did not abuse its discretion in refusing to submit

to the jury the defendants' proposed credibility instruction – Eighth Circuit Model Jury

Instruction No. 4.05A – because the instruction "'actually given by the [district] court

adequately and correctly cover[ed] the substance of the requested instruction.'" United

States v. Risch, 87 F.3d 240, 242 (8th Cir. 1996) (quoted case omitted); see United

States v. Butler, 56 F.3d 941, 945 (8th Cir. 1995) ("Eighth Circuit Model Instructions

are not an exhaustive list of mandatory instructions for district courts from which no

deviation may occur, 'but are merely helpful suggestions'"). Third, there was more than

ample evidence to support the defendants' convictions. See United States v. Cabrera,

116 F.3d 1243, 1244-45 (8th Cir. 1997) (elements of conspiracy charge); United States

v. Matlock, 109 F.3d 1313, 1318 (8th Cir. 1997) (elements of aiding and abetting

charge). Fourth, the district court did not abuse its discretion in sustaining the

Government's relevancy objection during Carrillo's cross examination of DEA Special

Agent McCue, both because the question to which the Government objected sought

irrelevant information and because the question was not an attempt to impeach the

agent. See United States v. Mulder, 147 F.3d 703, 707-08 (8th Cir. 1998). Finally, the

district court did not abuse its discretion in denying Torres's motion to sever – Torres

has not shown that he suffered real prejudice because his case was tried with his

coconspirators or that the jury could not compartmentalize the evidence against each

defendant. See United States v. Rodgers, 18 F.3d 1425, 1431-32 (8th Cir. 1994).

We affirm. See 8th Cir. R. 47B.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.