                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     October 4, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                       No. 05-2350
 v.                                               (D.C. No. CR-04-2548)
                                                        (D . N.M .)
 AN THO NY P. M AR TINEZ,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **


      M r. M artinez, appearing pro se, appeals from his conviction by a jury and

sentence for being a felon in possession of two firearms, 18 U.S.C. §§ 922(g)(1)

and 924(a)(2) (count I), and for possessing of two stolen firearms, 18 U.S.C.

§§ 922(j) and 924(a)(2), based on a 2004 indictment. He w as sentenced to a term

of imprisonment of 100 months and three years supervised release on each count



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
to be served concurrently. O ur jurisdiction arises under 28 U.S.C. § 1291, and w e

affirm.



                                    Background

      On September 18, 2001, an Albuquerque Police Department officer

responded to a call concerning a potential burglary at a residence on 56th Street.

The officer spoke to the caller who reported seeing a man crawling into a

neighbor’s residence through a broken window and exit with something in his

pants. The caller also reported that the man, whom he w ould identify as M r.

M artinez, walked to a nearby house on 57th Street and entered it. The officer

checked the 56th Street residence and noted that its front door was unlocked and

damaged, and the residence appeared to have been ransacked, with a broken south

side w indow . The victim of the burglary at the 56th Street residence reported tw o

handguns w ere stolen, a .40 caliber Daewoo and .38 caliber Derringer, along with

some jewelry and a pocket watch.

      Officers went to the 57th Street house, but no one answered their knock.

Concerned that the suspected burglar might be armed, officers surrounded the

57th Street house and closed the street to traffic. Although M r. M artinez came

out of the house, when he was told to freeze, he ran back in. A SW AT team

arrived, the other occupants of the house were directed to come outside, and

ultimately about three hours later, M r. M artinez came out and was arrested. After

                                         -2-
his arrest, officers obtained a search warrant, and recovered two guns hidden

under a dishwasher in the kitchen that matched those stolen from the 56th Street

residence. The owner of the 57th Street residence, M r. M artinez’s mother,

testified that she did not keep firearms, and she was unaware of the guns found

under the dishw asher.

      On September 20, 2001, the government filed a criminal complaint against

M r. M artinez charging him with the same offenses he now stands convicted of.

An arrest warrant issued. M r. M artinez was in state custody, so the government

filed a detainer against an unsentenced prisoner and served it on the records clerk

of the detention center holding M r. M artinez. He was indicted on October 10,

2001 on these offenses, and an arrest warrant issued. No further activity occurred

until January 2003.

      On January 21, 2003, while in state custody, M r. M artinez was served with

a detainer against an unsentenced prisoner, although M r. M artinez had been

sentenced in state matters in 2002. M r. M artinez contends that he consulted with

his case manager and requested that she contact the federal marshal and advise

that he had been sentenced, and now wished to invoke his speedy trial rights

under the Interstate Agreement on Detainers Act (“IADA”). On January 24,

2003, M r. M artinez was served with a detainer against a sentenced prisoner, and

he acknowledged receipt. The district court determined that although M r.

M artinez sought to invoke his speedy trial rights, he did not circle the language

                                         -3-
indicating such. Aplt. App. 34-35. On February 3, 2004, M r. M artinez filed a

demand w ith the federal district court for a speedy trial, and the government

received a w ritten demand on January 27, 2004. Ultimately, in response to M r.

M artinez’s motion to dismiss the indictment based upon a violation of the IAD A ,

the district court dismissed the 2001 indictment without prejudice because more

than 180 days had passed since the court and the government received M r.

M artinez’s demand for a speedy trial. Aplt. App. 40-41.

      On December 17, 2004, M r. M artinez was re-indicted on the same offenses

as in 2001. He represented himself w ith standby counsel, and the district court

denied his motions to dismiss the indictment on several grounds. The victim of

the burglary (who was scheduled to be out of the country) appeared by video-

taped deposition, although at the deposition, M r. M artinez objected. The case

was tried to a jury which convicted M r. M artinez, and he was sentenced.

      On appeal, M r. M artinez argues the district court erred (1) in determining

that the government did not violate the IADA in 2003, and in not dismissing the

2001 indictment w ith prejudice based upon the government’s 2004 IADA

violation, (2) in not dismissing for preindictment delay after a hearing, as the

government consented to the motion by not responding, (3) in allowing the

deposition testimony of the burglary victim, (4) in instructing the jury on

possession, and not using his tendered instruction, (5) in not granting a motion for

judgment of acquittal based upon insufficient evidence, (6) in determining that

                                         -4-
the federal prosecution did not violate double jeopardy, and (7) in ruling that the

government did not violate Fed. R. Crim. P. 5(a), nor his Sixth Amendment right

to counsel.



                                     Discussion

A. Dismissal of the 2001 Indictment W ithout Prejudice

      The district court dismissed the 2001 indictment without prejudice. 1 W e

review the district court’s factual findings for clear error, its legal conclusions de

novo, and its decision to dismiss without prejudice for an abuse of discretion.

United States v. Kelley, 402 F.3d 39, 41 (1st Cir.), cert. denied, 126 S. Ct. 164

(2005).

      W e find no error in the district court’s factual findings that M r. M artinez

filed a speedy trial demand on February 3, 2004, with the district court, and that

he sent a demand for a speedy trial to the government on January 26, 2004, which

was received on January 27, 2004. Although the IADA provides a right to be

brought to trial within 180 days, 18 U.S.C. App. 2, § 2, art. III(a), that time “does

not comm ence until the prisoner’s request for final disposition of the charges

against him has actually been delivered to the court and prosecuting officer of the



      1
         United States v. M artinez, CR 01-1340 JB (D.N.M .). Judge Browning
presided over the first case which resulted in dismissal of the indictment without
prejudice, and Judge Conway over the second case in which M r. M artinez was re-
indicted and convicted.

                                         -5-
jurisdiction that lodged the detainer against him.” Fex v. M ichigan, 507 U.S. 43,

52 (1993). The detainer in question informed M r. M artinez of this requirement.

Aplee. Br. attach. 1, at 1-2. M oreover, the district court was unassailably correct

in its finding that the following item on the detainer was not marked: “I (do) (do

not) demand a speedy trial on the charge(s).” Id. at 2; Aplt. App. 34-35.

      The government concedes that M r. M artinez invoked his IA DA rights in

early 2004, and that he w as not brought to trial within 180 days of that time. It

does contest M r. M artinez’s assertion that the time should have begun to run in

January 2003 when M r. M artinez responded to the detainer. The district court’s

factual finding that it w as unclear whether M r. M artinez was requesting his IA D A

speedy trial rights in 2003 is not clearly erroneous. M r. M artinez was plainly on

notice of the requirement of written notice to the government and the court, and

the need to periodically inquire w hether such notice was received. See Aplee Br.

attach. 1, at 1-2. W e reject the argument that the need for the states and the

federal government to comply with the IADA somehow binds the government to

M r. M artinez’s oral representations to his caseworker even if transmitted to the

U.S. M arshal. See Aplt. Br. at 10-12. Although M r. M artinez claims that he

notified the district court in M arch 2003, and sought to enlist the federal public

defender’s office to assist him (in January 2004), apparently no record of

correspondence with the district court is available, and the federal public

defender’s office gave him information on how he might contact the government

                                         -6-
and the court himself. Aplt. App. 35-36, 56. The district court’s rejection of

2003 as the time the IADA speedy trial rights began to run is not clearly

erroneous.

        M r. M artinez also contends that the district court erred not dismissing the

2001 indictment w ith prejudice based upon the government’s 2004 IADA

violation. As noted, the district court dismissed, but without prejudice. In

determining whether a dismissal should be w ith or without prejudice, a court

should consider the seriousness of the offense, the facts and circumstances which

led to dismissal, and the effect of re-prosecution on the administration of the

agreement on detainers and the administration of justice. 18 U.S.C. App. 2, §

9(1).

        The district court contrasted this case with one involving illegal reentry

after deportation, and concluded that this case involved an estimated offense level

of 20 or 22, and was compounded by M r. M artinez’s lengthy and serious criminal

history including commercial burglaries and escape. It further determined that

the government’s violation of the IADA resulted from arraigning M r. M artinez

approximately thirteen days after the 180-day time period had expired. According

to the district court the violation was unintentional. In evaluating the effect of re-

prosecution on the administration of the IADA, the district court found no effect

because M r. M artinez completed his state sentence. The district court also

determined that the administration of justice would be better served by a careful

                                           -7-
weighing of the circumstances together with M r. M artinez’s serious criminal

history and the alleged firearms offenses.

      Essentially, M r. M artinez contends that the district court improperly

w eighed the factors by not giving sufficient weight to the purpose of the IADA

and protection of prisoners. A plt. Br. at 16. The district court is entrusted with

the discretion to decide to dismiss with or without prejudice; we are not

persuaded that its decision is an abuse of discretion. See Kelley, 402 F.3d at 42

(“Assuming no error of law as to the factors to be considered and no error of fact,

the weight a court gives to the factors is usually upheld absent a clear error of

judgment.”).

      Along with his IADA claims, M r. M artinez argues that he was denied a

speedy trial in violation of the Sixth Amendment. Our review is de novo. United

States v. Dirden, 38 F.3d 1131, 1135 (10th Cir. 1994). In the district court, M r.

M artinez argued that his Sixth Amendment right to a speedy trial was violated

from September 20, 2001, the date the government filed its first criminal

complaint, until January 24, 2003, when the government filed a detainer against

him. R. Doc. 23 at 22. W e find no merit to this Sixth A mendment claim. In

deciding whether delay violates a defendant’s right to a speedy trial, we balance

(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s

assertion of--or failure to assert--his right, and (4) any prejudice to the defendant.

Barker v. W ingo, 407 U.S. 514, 530 (1972). Although the period between the

                                          -8-
first indictment (October 10, 2001) and the filing of the detainer (January 24,

2003) might be considered presumptively prejudicial as in excess of one year, see

Doggett v. United States, 505 U.S. 647, 652 n.1 (1992), M r. M artinez was in state

custody during this time. No evidence suggests that the government intentionally

delayed. M r. M artinez does contend that he was unaware of the federal

indictment until the first detainer in January 2003. Aplt. Reply Br. at 2. Even

holding the delay against the government and recognizing that M r. M artinez did

attempt to assert his speedy trial rights beginning in January 2003, we are

unpersuaded that his allegations demonstrate any actual prejudice to his

defense–he relies on presumptive prejudice, see Doggett, 505 U.S. at 656-58. But

this a much different case than Doggett, where the Supreme Court found a Sixth

Amendment violation on the strength of presumptive prejudice given a lag of

eight and one-half years between indictment and arrest, and a prosecution that

would have occurred six years earlier but for the government’s oversights. Id.

The time period here is far shorter, 2 and we are unwilling to give presumptive

prejudice undue weight in the analysis given what actually occurred here.

B. Preindictment Delay

      M r. M artinez argues that the district court erred in not dismissing the

indictment for preindictment delay after a hearing, as the government consented



      2
      To the extent that M r. M artinez argues on appeal that the Sixth
Amendment speedy trial period should extend into 2004, we are not persuaded.

                                        -9-
to the motion by not responding. He also argues that he never got a ruling from

the district court. Aplt. Reply Br. at 3. To succeed on a motion to dismiss for

preindictment delay based on due process, a defendant must establish actual

prejudice, and intentional delay by the government for the purpose of tactical

advantage or harassment. United States v. Colonna, 360 F.3d 1169, 1176-77

(10th Cir. 2004), cert. denied, 543 U.S. 823 (2004). M r. M artinez claims that he

was unable to “raise” certain witnesses, namely David Flores, who was in the

57th Street house when surrounded by police, Anthony M ontano, and G. M aestas,

a law enforcement officer who obtained statements from witnesses. Aplt. Br. at

20-21. M r. M ontano testified at trial. M r. Flores did not as apparently he could

not be located. Although M r. M artinez contends that he learned through

discovery that M r. Flores has thirteen different names, he does not explain how

preindictment delay prevented him calling him as a witness. Although the

government indicated in its trial brief (filed a week before trial) that it would call

M r. Flores, R. Doc. 35 at 3-4, and included him on a witness list, R. Doc. 50 at 1,

it was the responsibility of the defense to reach agreement with the government

about securing the presence of this w itness, or the defense had to do it on its

own. 3 M r. M artinez does not explain how the officer w ho obtained statements



      3
         The district court repeatedly counseled M r. M artinez about the dangers of
self-representation. II Tr. (M otion H’rg 3/30/2005) at 5-6; V Tr. (Trial
5/12/2005) at 4-5, 8-10.


                                         - 10 -
was relevant to his defense, and how preindictment delay prevented him from

calling him as a witness. Although he contends that he was barred from raising

Crawford v. W ashington, 541 U.S. 36 (2004), Crawford concerns testimonial

hearsay at trial in the absence of a prior opportunity for cross-examination; it

does not bar an officer from obtaining statements from witnesses.

      M r. M artinez faults the government for not responding to his arguments

concerning pre-indictment delay. The government treated the argument as

subsumed by Judge Brow ning’s earlier ruling on the IA DA. The district court

apparently did not recognize this argument in its order denying M r. M artinez’s

motions to dismiss the indictment. R. Doc. 41 at 5. M r. M artinez urged the

grounds again at sentencing, and the district court was not persuaded. III R.

(Sentencing Tr. 10/25/2005) at 19. Regardless, M r. M artinez has not made the

requisite showings for a dismissal based on preindictment delay, and the district

court did not abuse its discretion in rejecting this claim without a hearing.

C. Deposition Testimony of Burglary Victim

      A week before the M ay 12, 2005, trial, the government moved for an order

to take a videotape deposition of Armando Casas, the victim of the burglary. R.

Doc. 38; Fed. R. Crim. P. 15. The district court issued an order granting the

motion, with the deposition taking place the next day at 9:00 a.m. R. Doc. 39. In

serving the trial subpoena on M r. Casas, the government learned that M r. Casas

had a long-standing vacation trip scheduled to M exico City from M ay 7-22, and

                                         - 11 -
sought to preserve his testimony. The government contended that because he

would be in M exico, “M r. Casas cannot appear at trial on M ay 12, 2005.” R.

Doc. 38 at 2.

      Rule 15 allows for a deposition given “exceptional circumstances and in the

interest of justice.” Fed. R. Crim. P. 15(a). Rule 15(f) provides that a party can

use a deposition as evidence in accordance the Federal Rules of Evidence. At the

deposition, M r. M artinez objected on the grounds of lack of adequate notice to

prepare for the deposition, due process, violation of his right to confrontation, and

that non-refundable tickets were an insufficient reason to allow the deposition and

not to have the witness testify at trial. However, he did not object to use of the

deposition at trial. IV R. (Trial Tr. 5/12/2005) 10, 118-119. On appeal, he

contends additionally that if the government was going to use the deposition, it

should have been played first.

      W e review the district court’s decision to allow the deposition for an abuse

of discretion. United States v. Edwards, 69 F.3d 419, 437 (10th Cir. 1995).

Given proper objection, its decision to actually admit the deposition as evidence

is reviewed for an abuse of discretion. United States v. Atencio, 435 F.3d 1222,

1235 (10th Cir. 2006). The two decisions are not one in the same. United States

v. Omene, 143 F.3d 1167, 1170 (9th Cir. 1998). Although a district court may

consider unavailability in deciding whether to allow a deposition, United States v.

Galindo, 929 F.2d 1507, 1509 (10th Cir. 1991), the Rule speaks in terms of

                                         - 12 -
“exceptional circumstances” and “the interest of justice.” On the other hand,

when it comes to admitting the deposition, the government has the burden of

proving that the witness is unavailable. Galindo, 929 F.2d at 1511 (proponent

bears burden on unavailability); Fed. R. Evid. 804(b)(1) (deposition not excluded

by hearsay rule where witness unavailable). A witness is unavailable if absent

from the trial and the proponent of the deposition has been unable to procure the

declarant’s attendance “by process or other reasonable means.” Fed. R. Evid.

804(a)(5). To protect confrontation rights, the government must make a good-

faith effort to procure a witness’s attendance at trial before a deposition is used.

Barber v. Page, 390 U.S. 719, 724-25 (1968). M erely because a witness will be

out of the jurisdiction is not a sufficient reason to dispense with important

confrontation rights. Id. at 723; see also M aryland v. Craig, 497 U.S. 836, 846

(1990) (listing elements of confrontation including “physical presence, oath,

cross-examination, and observation of demeanor by the trier of fact”)

      As noted, M r. M artinez did not object to the deposition at trial so our

review is for plain error. To reverse a conviction for plain error in a criminal

case, the error must (1) be an actual error that was forfeited; (2) be plain, clear or

obvious; and (3) affect substantial rights, in other words, in most cases the error

must be prejudicial, i.e., it must have affected the outcome. United States v.

Olano, 507 U.S. 725, 733-35 (1993). If those elements are met, a court of appeals

may exercise its discretion to notice the error if it (4) “seriously affects the

                                          - 13 -
fairness, integrity, or public reputation of judicial proceedings.” Johnson v.

United States, 520 U.S. 461, 466 (1997) (internal quotations omitted).

      The statement in the government’s brief that it “did not provide much

advance notice to M artinez of the taking of the deposition” is an understatement.

Aplee. Br. at 24. The rule speaks in terms of “reasonable written notice of the

deposition’s date and location,” Fed. R. Crim. P. 15(b)(1), and this procedure is

on the low end. The motion recites that M r. M artinez was not consulted, although

it appears that standby counsel may have been. Still, the government contends

that it provided as much notice as possible given that the witness was leaving the

country on M ay 7. M r. M artinez contends that he learned at 3:00 p.m. on M ay 5,

of the M ay 6 deposition scheduled at 9:00 a.m.

      W e have reviewed the transcript of that deposition. Aplt. App. 59-68. M r.

Casas testified to being summoned to his residence due to a break in, the

condition of his house prior to the break in, and also to his ownership of the

firearms in question. W hile the government’s eleventh hour notice is

problematic, we hold that the district court did not abuse its discretion in ordering

the deposition, particularly given that M r. M artinez was able to cross-examine

him about pertinent facts. M r. M artinez does not explain what he would have

done given more notice. W hether the witness would have appeared under

subpoena is not clear–and the government was not required to take this chance.

      Absent consent from the defendant, whether the government could

                                        - 14 -
subpoena the witness and then claim he was unavailable because he exercised

vacation plans and using non-refundable tickets, is a closer question. But it is one

that the district court did not have to face because M r. M artinez did not object to

the use of the deposition at trial. Because we do not have all of the facts that an

objection to this deposition was likely to bring out, we can hardly say that

admitting this deposition for which M r. M artinez was present and allowed to

cross-examine, was error, plain or otherw ise. W e note that much of w hat M r.

Casas testified to (save ownership of the guns) had been established by other

evidence in the case. Insofar as the argument that the government should have

been required to present the videotape deposition first, no objection appears on

these grounds, M r. M artinez was present at the deposition, and the government is

entitled to present its case in chief in the order it chooses.

D. Jury Instruction

      M r. M artinez claims that the district court erred in instructing the jury on

possession, and not using one of his tendered instructions. The district court used

a pattern jury instruction on possession, 4 adding that “[a] person who knowingly

has direct physical control over a thing at a given time is then in actual possession

of it.” V R. (Trial Tr. 5/13/2005) at 289. W e review jury instructions as whole,

and review de novo an instruction to which proper objection at trial w as made.

United States v. Al-Rekabi, 454 F.3d 1113, 1119 (10th Cir. 2006). The failure to

      4
          Fifth Cir. Pattern J. Instr. (Criminal) 1.31 (2001 ed.).

                                          - 15 -
use a tendered instruction is reviewed for an abuse of discretion, and provided the

jury instructions as a whole adequately state the law, no abuse of discretion

exists. Kaiser v. Bowlen, 455 F.3d 1197, 1205 (10th Cir. 2006).

      M r. M artinez’s objections to the instructions were that (1) he “would have

to knowingly know the guns existed, to have actual constructive possession,” and

that the instructions would allow a finding of constructive possession with others.

V (Trial Tr. 5/13/2005) at 278, 310. Like the instruction given, one of his

tendered instructions indicates that possession can be either actual or

constructive. This instruction adds that constructive possession must be

accom panied by know ledge of the firearm’s existence in order to exercise

dominion and control over it. R. Doc. 48 at 2. Another instruction suggests that

possession can only be of one kind: actual constructive possession and that joint

possession forecloses constructive possession. 5

      The district court properly instructed that possession may be actual or

constructive. United States v. M ills, 29 F.3d 545, 549 (10th Cir. 1994). Thus, the

phrase contained in M r. M artinez’s objection and one of his proposed

instructions, “actual constructive possession” is not only confusing, but also

incorrect to the extent that it implies only actual possession will suffice. Al-



      5
         M r. M artinez’s second alternative provides in pertinent part: “You may
not find that the element of possession, as that term is used in these instructions,
is present, if you find beyond a reasonable doubt that the defendant had
constructive possession , through [sic] jointly with others.” R. Doc. 48 at 4.

                                        - 16 -
Rekabi, 454 F.3d at 1120. Constructive possession may be individual or joint,

and direct or through another person. Id. Thus, one of the proposed jury

instructions is completely incorrect in ruling out joint constructive possession. In

joint occupancy cases, we have required that the government prove a nexus

between the defendant and the contraband, as well as the defendant’s knowledge

of and access to the contraband. See United States v. Bowen, 437 F.3d 1009,

1018 (10th Cir. 2006); Colonna, 360 F.3d at 1178-79. Focusing on the knowledge

element, the instructions plainly informed the jury that knowing possession was

required and also defined knowingly. V (Trial Tr. 5/13/2005) at 289-91. The

jury instructions adequately conveyed to the jury that to convict it was required to

find knowing possession–here, that M r. M artinez knew the guns were hidden

under the dishwasher. The district court did not abuse its discretion in rejecting

M r. M artinez’s proposed instructions.

E. Denial of M otion for Judgment of Acquittal-Sufficiency of the Evidence

      M r. M artinez contends that the district court erred in not granting a motion

for judgment of acquittal based upon insufficient evidence. Our review is de

novo, and we evaluate the evidence in the light most favorable to the government

in deciding whether any rational trier of fact could find the defendant guilty

beyond a reasonable doubt of the charged offenses. United States v. M cCullough,

457 F.3d 1160, 1168 (10th Cir. 2006). A felon-in-possession-of-a-firearm

offense, 18 U.S.C. a § 922(g)(1), requires the government to prove that the

                                          - 17 -
defendant (1) knowingly possessed a firearm, (2) having previously been

convicted of a felony, and (3) that the firearm had traveled in or affected

interstate commerce prior to defendant’s possession. United States v. Taylor, 113

F.3d 1136, 1144 (10th Cir. 1997). A stolen firearms offense, 18 U.S.C. § 922(j),

requires the government to prove that the defendant (1) knowingly possessed the

stolen firearm, (2) knowing or having reasonable cause to believe it was stolen

and (3) that the firearm had moved or been shipped in interstate commerce either

before or after it was stolen. See Al-Rekabi, 454 F.3d at 1124; United States v.

Hodges, 315 F.3d 794, 799 (7th Cir. 2003), cert. denied, 538 U.S. 1019 (2005).

      Having recounted the facts above, sufficient evidence supports these

convictions. The only issue in this case is whether the government proved actual

or constructive possession of the firearms. A reasonable jury could find as

follow s. M r. M artinez broke into the 56th Street house based on the eyewitness

testimony of the neighbor who saw the burglary in progress and identified M r.

M artinez in court. IV (Trial Tr. 5/12/2005) at 117-118. That burglar was the

same person who exited the 57th Street house belonging to M r. M artinez’s mother

given the testimony of one of the officers who saw the standoff to its conclusion

and described M r. M artinez on his exit from the house. Id. at 168-69. The

officer’s description matched that of the neighbor who observed the burglary.

      DNA evidence linked M r. M artinez and the blood found in various

locations of the burglarized house. The firearms were stolen given the burglary

                                        - 18 -
victim’s deposition testimony admitted at trial. Aplt. App. 62-63. A reasonable

jury could find that M r. M artinez actually possessed the stolen firearms during his

journey from the burglarized house to his mother’s house. At some point prior to

surrendering, M r. M artinez hid the firearms underneath the dishw asher,

particularly given his mother’s testimony that she did not keep firearms in the

house and was unaw are of those found underneath the dishw asher.

F. Double Jeopardy

      M r. M artinez argues that the government violated double jeopardy based

upon an exception to the dual sovereignty rule. He relies on Bartkus v. Illinois,

359 U.S. 121 (1959), suggesting that one sovereign may not act as a tool of

another, seeking to revive an otherwise unsuccessful prosecution that would

otherwise be barred by double jeopardy. United States v. Trammell, 133 F.3d

1343, 1349 (10th Cir. 1998). W e review the district’s factual findings on a

double jeopardy issue for clear error, and its legal conclusions de novo. Id.

      This case simply does not implicate double jeopardy concerns or the

Bartkus exception. In New M exico, M r. M artinez’s parole was revoked (on

comm ercial burglary charges) and he was convicted of residential burglary based

on his conduct. In this prosecution, he was convicted of being a felon in

possession of a firearm and possessing stolen firearms. W e see the offenses as

qualitatively different, though based on similar facts. M r. M artinez argues that

the state was the tool of the federal prosecutor because the federal government

                                        - 19 -
delayed in prosecuting him until his state term w as over, one of the APD

detectives is a federal task force agent, and the district court refused to depart

pursuant to U.S.S.G. § 5K2.23. W e are not persuaded that any of this suggests an

overreaching relationship between state and federal authorities. See United States

v. Raymer, 941 F.2d 1031, 1037-38 (10th Cir. 1991).

G. Rule 5(a) and Right to Counsel

      Finally, M r. M artinez argues that the district court erred in ruling that the

government did not violate Fed. R. Crim. P. 5(a), nor his Sixth Amendment right

to counsel. Our review of these questions is de novo. Rule 5(a) requires that the

arresting officer take the defendant without unnecessary delay before a magistrate

judge. Here, M r. M artinez was taken into federal custody on August 12, 2004,

and brought before a magistrate not later than August 16. M r. M artinez argues

that he was subject to an almost three-year delay because the time period should

run from the original indictment in this case due to a working arrangement

between federal authorities and local police from the date of the offense.

      Rule 5(a) does not apply when a defendant is in state or local custody.

United States v. Ireland, 456 F.2d 74, 77 (10th Cir. 1972). W here a defendant can

show that federal and state authorities have a “working arrangement” of holding a

defendant in state custody, thereby delaying an appearance before a magistrate

judge, the rule might apply to suppress a confession made during the such delay.

See United States v. Torres, 663 F.2d 1019, 1024 (10th Cir. 1981). The facts do

                                         - 20 -
not support such a theory in this case; plainly, dismissal of the indictment was not

warranted.

      Finally, M r. M artinez argues that he was denied his right to counsel by not

having counsel at a post-indictment photo line-up. R. Doc. 23 at 15-16. That

argument is foreclosed by United States v. Ash, 413 U.S. 300, 321 (1973).

      A FFIR ME D.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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