           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 12, 2008

                                     No. 07-50583                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

JAVIER HERNANDEZ, also known as Javy,

                                                  Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:06-CR-52-2


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Javier Hernandez was indicted along with eight
others for conspiracy to possess with the intent to distribute 500 grams or more
of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(A), and
846. Hernandez was also charged with distribution of 50 grams or more of
methamphetamine, in violation of §§ 841(a)(1) and 841(b)(1)(B); and using a
communication facility, Federal Express (“FedEx”), in the distribution of 50


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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grams or more of methamphetamine, in violation of § 843(b). After a jury trial,
Hernandez was convicted of all counts as charged. On appeal, Hernandez raises
two issues for review.
      First, he alleges that his trial took place outside of the seventy-day limit
under the Speedy Trial Act. The Act provides that a federal criminal trial is to
begin within seventy days from the date the indictment was filed or the date the
defendant appeared before an officer of the court in which the charge is pending
(whichever is later).    18 U.S.C. § 3161(c)(1).     Hernandez argues that the
government exceeded this seventy-day period by thirty-six days.                It is
undisputed that he raises this issue for the first time on appeal.
      According to the clear statutory language of the Speedy Trial Act, “[f]ailure
of the defendant to move for dismissal prior to trial . . . shall constitute a waiver
of the right to dismissal under this section.” 18 U.S.C. § 3162(a)(2). This Court
has consistently recognized the failure to move in the district court for a
dismissal under the Speedy Trial Act as a procedural bar to appellate review.
See United States v. Westerbrook, 119 F.3d 1176, 1186 (5th Cir. 1997) (noting
that “[t]he Speedy Trial Act provides no exception to this waiver provision, and
we may not read one in.”); see also United States v. McElhaney, 469 F.3d 382,
386 (5th Cir. 2006) (finding waiver where defendant raised violation of the
Speedy Trial Act for the first time on appeal); United States v. Hernandez, 457
F.3d 416, 420 (5th Cir. 2006) (finding waiver under the Speedy Trial Act where
defendants failed to move for dismissal before trial). Because Hernandez raises
a violation of the Speedy Trial Act for the first time on appeal, he has waived any
right to appellate review of this claim.
      Second, Hernandez contends that the evidence presented at his trial was
insufficient to support a finding of guilt on the conspiracy count.
      During Hernandez’s trial, James Button, one of the co-conspirators
testified that from September of 2005 to March of 2006, he and his partners

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obtained, transported, and distributed over 500 grams of methamphetamine. He
testified that he was introduced to Hernandez by his daughter and that after a
phone conversation, he and Hernandez arranged to meet in Mesa, Arizona. At
the first meeting, in December 2005, Button purchased two ounces of
methamphetamine        from    Hernandez.        Thereafter,    he   purchased
methamphetamine from Hernandez on at least seven other occasions. The
Government played recorded conversations between Button and Hernandez for
the jury. In these recordings, the two negotiated future drug deals and wire
transfers.   Button also testified that after he realized that he was under
investigation, he sought permission from Hernandez to pass him on as a source
to Michelle Rush. Rush testified that she accompanied Button on a trip to
Arizona to “party” and “meet” Hernandez. She testified that Hernandez gave
her his phone numbers when they met.
      The Government also put on evidence that Hernandez mailed
methamphetamine to Button using FedEx. A detective testified at Hernandez’s
trial that as a result of plans made between Button and Hernandez, he
intercepted a FedEx package from Mesa, Arizona that contained 51.4 grams of
twelve percent methamphetamine.            Finally, Angela Trout, Button’s
stepdaughter, testified that she met Hernandez on at least two occasions when
she accompanied Button to Arizona to obtain methamphetamine.
      In support of his contention, Hernandez does not dispute any of the
evidence pointing toward his involvement in the conspiracy. Rather, citing this
Court’s opinion in United States v. Zuniga-Salinas, 952 F.2d 876 (5th Cir. 1992)
(en banc), Hernandez contends that the evidence did not establish that one of his
co-conspirators was guilty, and accordingly, Hernandez himself could not be
found guilty. Stated differently, Hernandez contends that where the evidence
is insufficient against one alleged co-conspirator, the evidence is necessarily



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insufficient against all other co-conspirators. This argument is completely
without merit.
       Hernandez’s reliance on Zuniga-Salinas is misplaced. In that case, this
Court considered whether a verdict convicting one defendant of conspiracy must
be set aside where the sole alleged co-conspirator is acquitted of conspiracy in
the same trial.      952 F.2d at 877.        This Court very broadly held that an
inconsistent verdict is not a bar to conviction even where all other
co-conspirators are acquitted, id. at 878, overturning previous Circuit precedent
to the contrary, id at 877-79. The Court explained that the inconsistency could
be explained by leniency, mistake, or compromise by the jury. Id. at 878
(citation omitted). Thus, rather than providing support for Hernandez’s position,
Zuniga-Salinas stands for the proposition that the acquittal of an alleged co-
conspirator cannot negate the conviction of another.1
       Thus, the only question remaining is whether the evidence against
Hernandez was sufficient to support the jury’s guilty verdict. When reviewing
for sufficiency of evidence, we view the evidence and all inferences drawn
therefrom in the light most favorable to the verdict. United States v. Mitchell,
484 F.3d 762, 768 (5th Cir. 2007). The standard is whether a rational jury could
have found the defendant guilty beyond a reasonable doubt. Id. To demonstrate
the offense of conspiracy to distribute a controlled substance, the government
must prove that: (1) the existence of an agreement between two or more persons
to violate narcotics laws; (2) the defendant’s knowledge of the conspiracy; and (3)
the defendant's voluntary participation in the conspiracy. United States v.




       1
         Notably, because the other alleged co-conspirators were tried in a sealed proceeding,
it is unclear whether the alleged co-conspirator to whom Hernandez refers was or was not
convicted of conspiracy. However, under Zuniga-Salinas, the resolution of this question is
irrelevant.

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Fuchs, 467 F.3d 889, 908 (5th Cir. 2006)(citing United States v. Arnold, 416 F.3d
349, 358-59 (5th Cir. 2005).
      As noted above, Hernandez does not challenge any evidence showing that
he was involved in the alleged conspiracy. In addition, upon review of the
record, we conclude that an agreement existed between two or more persons to
violate narcotics laws, Hernandez was aware of the conspiracy, and he
voluntarily participated in it. Button testified that Hernandez was one of his
suppliers, and that he purchased methamphetamine from him on several
occasions. The Government introduced into evidence and played for the jury
recorded conversations between Button and Hernandez where the two discussed
drug deals and made payment arrangements. Moreover, Hernandez expressed
willingness to supply another individual with methamphetamine after Button
told him that he was under investigation. Thus, the evidence was sufficient for
a rational jury to find Hernandez guilty of conspiracy beyond a reasonable doubt.
Accordingly, we AFFIRM.




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