                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    November 16, 2010
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                       No. 09-8043
 v.                                                      (D. Wyoming)
 JOSE GUADALUPE MULGADO-                      (D.C. No. 2:08-CR-00108-WFD-5)
 PATIDA,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and TYMKOVICH, Circuit Judges.


      Jose Mulgado-Patida (Defendant) was convicted of conspiracy to possess

and distribute methamphetamine and sentenced to 240 months’ imprisonment. He

raises two issues on appeal: (1) that the district court violated the Speedy Trial

Act, 18 U.S.C. §§ 3161–74, by making inadequate findings when granting several

continuances, and (2) that the evidence at trial did not establish the single

conspiracy alleged in the indictment. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm. Even if the district court’s findings were inadequate to


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
support some of the continuances, there was no violation of the Speedy Trial Act

because Defendant’s trial was still timely. And even if there was a variance

between the conspiracy charged and the conspiracy proved at trial, Defendant was

not substantially prejudiced by the variance.

                                  DISCUSSION

I.    The Speedy-Trial Act Claim

      A.     Background

      Defendant was detained for 672 days (about one year and 10 months) from

the time he was arrested on the original conspiracy charge against him until his

trial began. He was first indicted by a grand jury in the United States District

Court for the District of Wyoming on May 17, 2007. The indictment charged him

and eight codefendants with conspiracy to possess with intent to distribute, and to

distribute, methamphetamine. The alleged conspiracy began in January 2006 and

continued until the date of the indictment. Defendant was arrested in Idaho on

May 29, 2007, and was arraigned in Wyoming federal court on July 18. He was

held without bail.

      After an August 1, 2007, search of the Westminster, Colorado, residence of

Ramon Espinoza-Aguilar resulted in the seizure of about 2 pounds of

methamphetamine, a superseding indictment was filed on September 20. It added

Espinoza-Aguilar and five others as codefendants on the conspiracy charge and

extended the conspiracy ending date to September 20, 2007. The superseding

                                         -2-
indictment alleged that coconspirator David Morales-Martinez would receive

methamphetamine from Espinoza-Aguilar in Colorado and California and would

then distribute it to other coconspirators, including Defendant, who would in turn

redistribute the methamphetamine to additional coconspirators for sale to others.

      By May 2008 the charges against all but three of the defendants had been

resolved. Several who had pleaded guilty had cooperated with the government,

enabling it to widen its investigation and discover a link between the conspiracy

alleged in the superseding indictment and a conspiracy charged in a separate

indictment. A third indictment, which charged the enlarged conspiracy, was filed

on May 15, 2008, and the superseding indictment was dismissed on the

government’s motion. Charged in the third indictment were Defendant and his

two remaining codefendants from the superseding indictment, two defendants

from the separate indictment, and nine new defendants. The alleged conspiracy

began in June 2003 and continued until May 2008.

      Jury trial on the third indictment was originally scheduled for July 28,

2008. But the district court granted four continuances, and trial did not

commence until March 30, 2009. By that time, only four defendants remained to

be tried. The court declared a mistrial on April 1. The trial of one codefendant

was then severed, and the charges against another codefendant were dismissed by

the government. Trial for Defendant and Espinoza-Aguilar, the sole remaining

codefendant, began on April 6.

                                         -3-
      B.     The Speedy Trial Act

      When a defendant pleads not guilty, the Speedy Trial Act requires trial to

begin within 70 days of the indictment filing date or the defendant’s first

appearance “before a judicial officer of the court in which such charge is

pending,” whichever occurs later. 18 U.S.C. § 3161(c)(1). The sanction for

violation of the Act is dismissal of the indictment. See id. § 3162(a).

      Subsection 3161(h) of the Speedy Trial Act provides exclusions that toll the

running of a defendant’s speedy-trial clock. See id. § 3161(h). Several are

essentially automatic. Three of these are relevant to this appeal.

      First, subparagraph (h)(1)(A) excludes “delay resulting from any

proceeding, including any examinations, to determine the mental competency or

physical capacity of the defendant.” Id. § 3161(h)(1)(A). Excludable time under

§ 3161(h)(1)(A) “generally runs from the date the motion is filed seeking the

examination to the date the matter is taken under advisement after receipt by the

court of results and briefs and completion of any hearings.” James Cissell,

Federal Criminal Trials § 12-1[c][5][i] (7th ed. 2008); see United States v.

Murphy, 241 F.3d 447, 455–56 (6th Cir. 2001) (collecting cases). There may be

an exception within that time, however, when the defendant is transported for

examination. See 18 U.S.C. § 3161(h)(1)(F) (excluding “delay resulting from

transportation of any defendant from another district, or to and from places of

examination or hospitalization, except that any time consumed in excess of ten

                                         -4-
days from the date an order of removal or an order directing such transportation,

and the defendant’s arrival at the destination shall be presumed to be

unreasonable”). “Time devoted to transportation for examination purposes is

more properly excluded under [§ 3161(h)(1)(F)],” and “[a]ny transportation time

in excess of 10 days from the order causing the transportation is presumed to be

unreasonable under the [Speedy Trial Act].” Cissell, supra, at § 12-1[c][5][i]; see

also United States v. Noone, 913 F.2d 20, 25 n.5 (1st Cir. 1990) (holding that any

other reading would render § 3161(h)(1)(F) “mere surplusage”); Committee on

the Administration of the Criminal Law of the Judicial Conference of the United

States, Guidelines to the Administration of the Speedy Trial Act of 1974, As

Amended, 106 F.R.D. 271, 286 (1984) (“Unreasonable delay in transporting a

defendant to or from an institution at which the examination takes place may

serve to reduce the amount of excludable time.”).

      Second, subparagraph (h)(1)(D) excludes “delay resulting from any pretrial

motion, from the filing of the motion through the conclusion of the hearing on, or

other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D). And

third, subparagraph (h)(1)(H) excludes “delay reasonably attributable to any

period, not to exceed thirty days, during which any proceeding concerning the

defendant is actually under advisement by the court.” Id. § 3161(h)(1)(H).

      In addition, a district court can continue the case and exclude the resulting

delay from counting under the Speedy Trial Act. See id § 3161(h)(7).

                                         -5-
Paragraph (h)(7) excludes the period of the continuance if the court finds, on the

record, that the ends of justice served by granting the continuance outweigh the

best interest of the public and the defendant in a speedy trial. See id.

      Of special importance in this case, delays that stop the speedy-trial clock

for one defendant typically stop the clock for codefendants as well. Paragraph

(h)(6) excludes “[a] reasonable period of delay when the defendant is joined for

trial with a codefendant as to whom the time for trial has not run and no motion

for severance has been granted,” id. § 3161(h)(6); see United States v. Vogl, 374

F.3d 976, 983 (10th Cir. 2004) (“an exclusion for delay attributable to one

defendant is applicable to all co-defendants” (internal quotation marks omitted)). 1

“The obvious purpose behind the exclusion in § 3161(h)(7) is to accommodate the

efficient use of prosecutorial and judicial resources by trying multiple defendants

in a single trial.” Vogl, 374 F.3d at 983 (brackets and internal quotation marks

omitted). Although the filing of a superseding indictment generally “does not

serve to toll the speedy trial clock,” United States v. Apperson, 441 F.3d 1162,

1181 (10th Cir. 2006), the period from the filing of a superseding indictment

joining new codefendants until the initial appearance of the last new codefendant

under that indictment does trigger a paragraph (h)(6) exclusion. See United States

      1
        Under paragraph (h)(6) the period of delay must be “reasonable.” In
measuring reasonableness we consider whether the defendant was incarcerated,
whether he actively sought an earlier trial date, and whether it is most efficient to
try the defendant and codefendant together. See United States v. Tranakos, 911
F.2d 1422, 1426 (10th Cir. 1990).

                                          -6-
v. Olivo, 69 F.3d 1057, 1062 (10th Cir. 1995); see also Henderson v. United

States, 476 U.S. 321, 323 n.2 (1986) (“All defendants who are joined for trial

generally fall within the speedy trial computation of the latest codefendant.”).

      C.     Application to Defendant

      On appeal Defendant’s sole argument under the Speedy Trial Act is that the

district court granted several ends-of-justice continuances under § 3161(h)(7)

without making sufficient oral or written findings on why the continuances should

be granted. We review for an abuse of discretion the district court’s denial of a

motion to dismiss for violation of the Act. See Vogl, 374 F.3d at 982. We review

de novo its compliance with the legal requirements of the Act, see id., and we

accept its factual findings unless they are clearly erroneous, see id.

      In this case, Defendant’s argument on appeal is beside the point. Even if

he is correct that none of the ends-of-justice continuances were proper, he has not

challenged the government’s contentions in its answer brief on appeal that his

trial complied with the Speedy Trial Act because of tolling provisions other than

paragraph (h)(7). We could affirm solely on the basis of Defendant’s failure to

challenge the government’s alternative ground for affirmance. See Berna v.

Chater, 101 F.3d 631, 633 (10th Cir. 1996). But we briefly examine the

government’s arguments to assure ourselves that they are essentially correct. 2

      2
       In this brief examination we do not dwell on whether the excluded periods
for codefendants were “reasonable” under § 3161(h)(6). Arguing against
                                                                    (continued...)

                                         -7-
      Defendant’s speedy-trial clock began to run on July 18, 2007, when he was

arraigned in the Wyoming district court. See 18 U.S.C. § 3161(c)(1) (requiring

trial to begin within 70 days of the indictment filing date or the defendant’s first

appearance before a judicial officer of the court in which such charge is pending,

whichever occurs later). From that date on, a series of overlapping exclusions

covered almost the entire period until his initial trial (which ended in a mistrial).

      Motions filed by codefendants resulted in exclusions from the date of his

arraignment until August 23, 2007. Codefendant Tracy Glidewell filed a motion

to suppress on July 2, 2007 (before Defendant’s arraignment), and the district

court scheduled a hearing on that motion and “all other pending motions” for

July 24, 2007. See id § 3161(h)(1)(D) (excluding “delay resulting from any

pretrial motion, from the filing of the motion through the conclusion of the

hearing on . . . such motion”); id. § 3161(h)(6) (excluding “[a] reasonable period

of delay when the defendant is joined for trial with a codefendant as to whom the

time for trial has not run and no motion for severance has been granted”); Vogl,

374 F.3d at 983 (“[a]n exclusion for delay attributable to one defendant is

applicable to all co-defendants” (internal quotation marks omitted)). At the


      2
       (...continued)
reasonableness is that Defendant was incarcerated. But the efficiency of trying
alleged coconspirators together generally justifies the application of that
provision; and Defendant did not object to any continuance until codefendant
Vigil’s motion to postpone the trial setting for November 3, 2007, five months
before the eventual trial.

                                          -8-
hearing the district court took two other motions under advisement, extending the

exclusion an additional 30 days to August 23. See 18 U.S.C. § 3161(h)(1)(H)

(excluding “delay reasonably attributable to any period, not to exceed thirty days,

during which any proceeding concerning the defendant is actually under

advisement by the court”). Motions filed after the July 24 hearing probably

further tolled Defendant’s speedy-trial clock, but we will assume for convenience

that the clock ran from August 23 until the superseding indictment was filed on

September 20, 2007, a period of 28 days.

      The next excluded period ran from September 20, 2007, until February 27,

2008, when Joshua Weichselberger, a new codefendant under the September 20

indictment, was arraigned. See id § 3161(h)(6); Olivo, 69 F.3d at 1062 (filing of

superseding indictment joining new codefendants triggers a paragraph (h)(6)

exclusion from the filing date of the superseding indictment until the initial

appearance of the last new codefendant under that indictment). Overlapping that

excluded period was the period from January 31, 2008, when Espinoza-Aguilar

filed a motion to suppress, until the district court completed the hearing on that

motion on April 15, 2008. See 18 U.S.C. §§ 3161(h)(1)(D), (h)(6). The court

took the motion under advisement, which tolled the Defendant’s speedy-trial

clock for 30 additional days, see id. § 3161(h)(1)(H), until May 15, 2008.

      Defendant’s clock was then tolled from the filing of the third indictment on

May 15, 2008, until the last codefendant under that indictment, Derrick Daniel

                                         -9-
Abbott, was arraigned on September 9, 2008. See Olivo, 69 F.3d at 1062. That

excluded period overlaps the period from July 7, 2008, when codefendant Brian

Nazareno filed a motion for a mental evaluation, to October 24, 2008, when

Nazareno was evaluated in Wyoming. See 18 U.S.C. § 3161(h)(1)(A) (excluding

“delay resulting from any proceeding, including any examinations, to determine

the mental competency or physical capacity of the defendant”); id. § 3161(h)(6).

(Nazareno pleaded guilty on December 19, 2008. The excluded period probably

extended past the evaluation date, but all time after October 15 was excluded

anyway, as explained in the next paragraph.)

      The period from October 15, 2008, until trial began on March 30, 2009, is

excluded because of a motion filed by codefendant Christopher Vigil. Among

other things, the motion sought a James hearing to determine whether statements

by alleged coconspirators that would otherwise be hearsay would be admissible

under the coconspirator exception. See United States v. James, 590 F.2d 575 (5th

Cir. 1979); Fed. R. Evid. 801(d)(2)(E) (coconspirator exception). A motion that

“requires a hearing” tolls the speedy-trial clock from the filing of the motion until

the conclusion of the hearing. Henderson, 476 U.S. at 329. A motion to

determine the applicability of the coconspirator exception is such a motion. We

have said that “a district court can only admit coconspirator statements if it holds

a James hearing or conditions admission on forthcoming proof of a predicate

conspiracy through trial testimony or other evidence” and have expressed a

                                         -10-
“strong preference for James proceedings.” United States v. Townley, 472 F.3d

1267, 1273 (10th Cir. 2007) (citation and internal quotation marks omitted).

Other circuits have decided that motions for James hearings are motions

“necessitating hearings,” and “[a]s such, the entire time from the filing of the

motion to the conclusion of the hearing is excludable, even when the hearing is

deferred until trial.” United States v. Phillips, 936 F.2d 1252, 1254 (11th Cir.

1991); see United States v. Grosz, 76 F.3d 1318, 1324 n.3 (5th Cir. 1996)

(“pending James motions do toll the speedy trial clock when they are heard and

ruled upon at trial”). Although the district court never set Vigil’s motion for

hearing, it explained its intention to make James determinations during the trial

itself. Accordingly, the period from the filing of Vigil’s motion until the start of

trial on March 30, 2009, is excluded under § 3161(h)(1)(D). 3

      Thus, even assuming that none of the ends-of-justice continuances were

properly granted, Defendant’s speedy-trial clock ran at most 28 days (between

August 23 and September 20, 2007), comfortably within the 70 days allowed.

There were then five days from the declaration of the mistrial on April 1 until the

first day of trial on April 6, but the declaration restarted a 70-day clock. See 18


      3
       The district court issued an order on March 27, 2009, denying Vigil’s
discovery motions as moot. The order listed the docket numbers for the affected
motions, and one of those listed was the motion that included, in addition to
discovery motions, Vigil’s request for a James hearing. The court obviously was
not including the James-hearing request in the order because it announced early
during trial that it intended to resolve the James issues during trial.

                                         -11-
U.S.C. § 3161(e) (“[T]he trial shall commence within seventy days from the date

the action occasioning the retrial becomes final.”).

      There was no violation of the Speedy Trial Act.

II.   Variance

      Defendant argues that there was a variance between the single conspiracy

charged in the indictment and the alleged multiple, smaller conspiracies proved at

trial. When a defendant seeks reversal because of an alleged variance, we

examine (1) whether the evidence presented supports the overall conspiracy

charged or if a variance occurred, and (2) if there was a variance, whether the

variance was substantially prejudicial to the defendant. See United States v.

Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008). If a variance is found, we

review the question of prejudice de novo. See id. at 1240.

      In this case we need not address the first issue because we conclude that

even if there was a variance, Defendant did not suffer substantial prejudice as a

result. Defendant argues that he suffered prejudice because the physical evidence

introduced during trial, much of it seized after he claims to have severed

connections with the alleged coconspirators, implicated only Espinoza-Aguilar

and “cast the danger of the inference of guilt” against Defendant. Aplt Br. at 40.

He asserts that the “bulk of the evidence was so overwhelming that it

overshadowed any attempt to demonstrate his innocence” and that it was

impossible to discern his true conduct or relevant conduct attributable to him. Id.

                                         -12-
at 41. He claims that he was additionally prejudiced by being incarcerated for

more than 22 months while the government continued to investigate, gather

evidence, and indict more people in the conspiracy.

      Defendant has failed to show, however, that he was prejudiced by the

introduction of evidence at trial (whether this evidence was acquired by the

government before or after his incarceration) that did not relate specifically to

him. A variance is substantially prejudicial “if the evidence adduced against

co-conspirators involved in separate conspiracies was more likely than not

imputed to the defendant by the jury in its determination of the defendant’s guilt.”

Carnegie, 533 F.3d at 1241 (internal quotation marks omitted). But in

Defendant’s trial the evidence implicating only Espinoza-Aguilar was “not so

intricate as to render the jury unable to segregate the evidence associated with

each defendant’s individual actions.” Id. at 1242 (internal quotation marks

omitted).

      To be sure, the government presented evidence of a far-ranging conspiracy

that went well beyond Defendant’s activities. The conspiracy involved a drug-

dealing organization run by Espinoza-Aguilar that operated in Wyoming,

California, Colorado, and Iowa. This conspiracy included several mid- and low-

level dealers and distributors. One such mid-level dealer was Morales-Martinez,

who sold drugs for Espinoza-Aguilar in Wyoming and brought several others into




                                         -13-
the conspiracy. Thus Defendant, whose involvement was through Morales-

Martinez, was a comparatively minor actor.

      But the evidence against Defendant was not vague allegations of mere

association with the culprits. Although witnesses described Defendant as a

“sidekick” of Morales-Martinez, they also described his specific criminal conduct.

Several testified that Defendant cut the methamphetamine with another chemical

to increase the weight of the substance, weighed methamphetamine and packaged

it for distribution, and distributed methamphetamine to users and other dealers.

There was further testimony that Defendant would accompany Morales-Martinez

on trips to California to pick up methamphetamine.

      Given that there was only one codefendant at Defendant’s trial and that the

evidence against Defendant was compartmentalized, there was no risk of jury

confusion. See id. at 1242 (concluding that the risk of prejudice was not great in

a trial involving three codefendants). Even if a variance occurred, Defendant has

not shown that he suffered substantial prejudice as a result.

                                  CONCLUSION

      We AFFIRM the district court’s denial of Mr. Mulgado-Patida’s motion to

dismiss for violation of the Speedy Trial Act and AFFIRM his conviction.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge

                                        -14-
