UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5584

JAIME RODRIGUEZ, a/k/a Jose Rivera,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-92-36)

Argued: January 29, 1998

Decided: June 29, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Edward Anthony Fiorella, Jr., HARKEY, LAMBERTH,
NYSTROM, FIORELLA & MORRISON, L.L.P., Charlotte, North
Carolina, for Appellant. Kenneth Davis Bell, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jaime Rodriguez appeals his conviction for conspiracy to distribute
cocaine base (crack). He contends that the district court erred by
(among other things) admitting evidence of his prior bad acts. Rodri-
guez also claims that the evidence was insufficient to support his con-
viction and that he was denied his right to a speedy trial. Having
considered Rodriguez's arguments, we conclude that the district court
did not abuse its discretion in admitting evidence of his prior bad acts
because that evidence was necessary to prove the element of intent.
Further, we are convinced that the evidence at trial was sufficient to
prove beyond a reasonable doubt that Rodriguez joined a cocaine dis-
tribution conspiracy centered in the Western District of North Caro-
lina. Moreover, we hold that Rodriguez was not denied his right to a
speedy trial because much of the delay in bringing him to trial
resulted from continuances granted to him and his co-defendants.
Accordingly, we affirm Rodriguez's conviction.

I.

Rodriguez was indicted on February 6, 1992, in the Western Dis-
trict of North Carolina for conspiracy to possess with intent to distrib-
ute crack. A superseding indictment handed down March 3, 1992,
named several new defendants. Trial was originally set for the March
1992 trial term, but Rodriguez's co-defendants repeatedly moved for
continuances and the trial was continued until the April 1993 trial
term. Rodriguez himself moved for two two-month continuances, ask-
ing that trial be continued from May to July 1992 and from July to
September 1992. Rodriguez went to trial on March 29, 1993.

At trial Emery Evans testified about his crack distribution opera-
tion in Mecklenburg and Union Counties in the Western District of
North Carolina. Evans testified that he originally obtained his cocaine

                     2
from his friend Juan Escobar in North Carolina. Evans said that Esco-
bar bought this cocaine from Jose Barrena, a drug dealer who oper-
ated out of Miami, Florida. Barrena, in turn, got much of this cocaine
from Guillermo Cortina, whose family had a large cocaine distribu-
tion operation in Miami. The cocaine Evans bought from Escobar was
packaged and distributed by Evans in North Carolina.

Although at first Escobar was Evans' only source for cocaine,
Evans soon began to buy cocaine directly from Barrena, to cut out the
middleman (Escobar). Cortina continued to supply Barrena with most
of the cocaine that was sold to Evans. Evans obtained this cocaine by
driving to Miami and then transporting it back to North Carolina
where it was put on the retail drug market.

Barrena also testified at Rodriguez's trial. Barrena explained that
he obtained most of the cocaine he sold to Escobar from Cortina. Bar-
rena's contact with Cortina was through his (Barrena's) brother
Miguel, who knew Cortina from Columbia. Usually, Escobar would
travel to Barrena's apartment in Florida to buy the cocaine, which
Cortina had "fronted" to Barrena. After the transaction Barrena would
call Cortina, who would come to Barrena's apartment and pick up his
money. After Barrena began selling cocaine directly to Evans, he still
got most of his cocaine from Cortina.

In January 1992 DEA Agents arrested Evans in North Carolina.
Evans immediately began cooperating with the government. He called
Barrena and asked for 30 kilos of cocaine. Barrena decided to obtain
the 30 kilos from Cortina, because Barrena had recently delivered
some bad cocaine from Cortina to Evans, and Cortina had promised
to make it up to Evans on a later deal.

On January 29, 1992, Evans and the DEA agents went to Florida
to buy the cocaine from Barrena. Once he arrived in Miami, Evans
drove to Barrena's apartment. There, Barrena and his brother Miguel
were waiting for Evans in the parking lot. Barrena gave Evans 15
kilos of cocaine and told Evans that the other 15 kilos were in his car.
As they were walking to Barrena's car, the DEA agents arrested Bar-
rena. Miguel escaped, however.

Barrena immediately began cooperating with the DEA. Cortina had
fronted him the 30 kilos of cocaine, so he called Cortina and told him

                    3
to pick up his money. Barrena told DEA agents that Cortina said he
was bringing an associate with him to pick up the money.

Cortina arrived at Barrena's apartment with Rodriguez. When he
arrived on the scene, Rodriguez asked "Where's Miguel?" Cortina
and Rodriguez were then arrested by DEA agents. The agents found
a loaded semi-automatic pistol on Cortina and found two more semi-
automatics in the car that Rodriguez and Cortina had driven to Bar-
rena's apartment. After being read his Miranda rights, Rodriguez
admitted to the agents that he owned both of the firearms found in the
car.

At trial Angel Oropeza, a government informant, testified about his
drug activities in Miami with a man named "Jimmy." Oropeza testi-
fied that he met with Jimmy about buying some cocaine in late 1991.
Two other men accompanied Jimmy to that meeting. Oropeza later
identified Jimmy as Rodriguez from police photographs. At trial
Oropeza again identified Rodriguez as Jimmy and also identified Cor-
tina as one of the men who accompanied Rodriguez to their 1991
meeting.

DEA Agent Jaime Camacho also testified at trial. Camacho
explained how he and Oropeza met with Jimmy's agent to arrange the
purchase of 50 kilos of cocaine. Jimmy's agent provided a sample
kilo to Camacho and then Oropeza and Jimmy attempted to work out
the details of the sale. The deal never was consummated, however,
apparently because Jimmy (Rodriguez) learned that he was being
watched by DEA agents.

The jury found Rodriguez guilty. After trial he pleaded guilty to
another charge of conspiracy to distribute cocaine arising out of his
activities in Miami (the indictment was handed down while he was
awaiting trial in North Carolina). Rodriguez was sentenced to 210
months in prison for the Florida conviction and later to 262 months
for the North Carolina conviction (his offense level having been
enhanced due to the Florida conviction).

Rodriguez filed his notice of appeal on July 10, 1995. His appeal
was delayed, however, because his lawyer was unable to obtain a
transcript of his trial from the court reporter despite our repeated

                     4
directives to the reporter to produce the transcript. On June 19, 1997,
we remanded the case to the trial court for completion of the record
for appeal. That court adopted the transcript prepared for co-
defendant Cortina's appeal as an accurate transcript of Rodriguez's
trial (since Cortina and Rodriguez were tried together) and forwarded
it to this court on July 16, 1997. Thereafter, counsel were able to file
briefs, and argument was scheduled.

II.

A.

Rodriguez claims that the testimony concerning his prior drug deal-
ing in Miami with Oropeza and Agent Camacho was evidence of
prior bad acts, which is generally inadmissible under Federal Rule of
Evidence 404(a). Of course, evidence of a defendant's prior bad acts
may be admitted to prove an element (such as intent) of the crime
charged, so long as the evidence is not used to show that the defen-
dant possessed bad character and acted in conformity therewith. See
Fed. R. Evid. 404(b); United States v. Queen, 132 F.3d 991, 994 (4th
Cir. 1997), cert. denied, 118 S. Ct. 1572 (1998). Rodriguez contends
that the testimony about his prior drug dealing with Oropeza and
Agent Camacho was not admissible under Rule 404(b) because it was
unrelated to the North Carolina conspiracy. Here, Rodriguez confuses
"extrinsic" acts, which fall under Rule 404(b)'s prohibition on evi-
dence of bad character, with "intrinsic" acts, which are not subject to
Rule 404(b). Prior acts are extrinsic if they are neither an element of
the crime charged nor "inextricably intertwined" with that crime. See
United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996). Intrinsic
acts, on the other hand, are actually part of the crime charged (such
as acts in furtherance of a conspiracy) or so closely related to the
crime that its "story" cannot be told without mentioning them. See id.
Here, there is no question that the prior bad acts about which Oropeza
and Agent Camacho testified were unrelated to the crime with which
Rodriguez was charged. Yet Rodriguez's prior acts were not rendered
inadmissible because they were extrinsic to the North Carolina con-
spiracy. That the acts were extrinsic simply meant that testimony con-
cerning them had to meet the requirements of Rule 404(b) in order to
be admissible.

                    5
Evidence is admissible under Rule 404(b) if: (1) it is relevant to an
issue other than character, (2) it is necessary to prove an element of
the crime charged, (3) it is reliable, and (4) its probative value is not
substantially outweighed by its prejudicial effect in violation of Fed-
eral Rule of Evidence 403. See Queen, 132 F.3d at 995. We review
the admission of evidence under Rule 404(b) for an abuse of discre-
tion. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).

We conclude that the district court was well within its discretion
when it admitted the evidence of Rodriguez's prior drug activity
under Rule 404(b). Oropeza and Agent Camacho testified that Rodri-
guez had previously engaged in cocaine distribution with (among oth-
ers) Cortina. This evidence that Rodriguez was involved in prior drug
transactions was probative of his intent to take part in the drug trans-
action between Barrena and Cortina on January 29, 1992.1 This evi-
dence was necessary because the government had to prove that
Rodriguez was an active participant, and not an innocent bystander,
in the January 29 transaction in order to prove that he joined the
North Carolina cocaine distribution conspiracy. The evidence was
reliable because Oropeza twice identified Rodriguez. (Indeed, it is not
surprising that Rodriguez would have been known as"Jimmy" since
the name Jaime is Spanish for James.) Further, Rodriguez's claim that
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1 Of course, prior bad acts are not relevant to prove mental state if they
are too dissimilar to the crime charged. See Queen, 132 F.3d at 997; see,
e.g., United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992);
United States v. Sanders, 964 F.2d 295, 298-99 (4th Cir. 1992). This is
because evidence of dissimilar prior bad acts is just proof of bad charac-
ter and the propensity to commit crime. See Queen, 132 F.3d at 996-97.
However, even if the prior bad acts proved at trial are not the same as
the crime with which the defendant is charged, the prior acts may be
admissible if the state of mind they evidence is the same state of mind
required to prove the crime charged. See id. Here, the mental state evi-
denced by Rodriguez's prior drug activities, the intent to engage in
cocaine distribution with others, is the same mental state the government
was trying to prove to convict Rodriguez of conspiracy. Thus, even
though Rodriguez's prior bad acts (arranging a drug sale) were slightly
dissimilar to the act he was charged with (collecting money after a drug
sale), the prior acts met the similarity requirement of Rule 404(b).

                     6
the introduction of this evidence caused him unfair prejudice is com-
pletely unsupported.2

B.

Next, Rodriguez contends that the evidence at trial was insufficient
to support his conviction. We must uphold his conviction unless, tak-
ing all the evidence in the light most favorable to the government, a
reasonable jury could not have found the essential elements of the
crime beyond a reasonable doubt. See Glasser v. United States, 315
U.S. 60, 80 (1942). The elements of conspiracy to possess crack with
intent to distribute are: (1) an agreement between two or more persons
to possess crack with intent to distribute it, (2) knowledge of the con-
spiracy by the defendant, and (3) a knowing and voluntary decision
by the defendant to join the conspiracy. See United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert. denied, 117 S. Ct.
1087 (1997). Thus, to convict a defendant of conspiracy to distribute
crack, the government must prove beyond a reasonable doubt both the
existence of the conspiracy and the defendant's connection to the con-
spiracy. See id. at 858.

Rodriguez does not challenge the government's proof of the exis-
tence of the North Carolina conspiracy. Indeed, the evidence on this
point was overwhelming. Evans bought his cocaine from two suppli-
ers, Escobar and Barrena, in North Carolina and Florida. Further,
although Barrena and his supplier, Cortina, operated out of Miami,
Evans's crack distribution occurred almost entirely in the Western
District of North Carolina.

Rodriguez argues that the evidence was insufficient to connect him
with the North Carolina conspiracy. But once the government has
proved the existence of a conspiracy, it only needs to establish a
"slight connection" between defendant and the conspiracy.3 Id. at 861.
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2 We have considered Rodriguez's other complaints about the admis-
sion of the Rule 404(b) evidence, including his challenge to the court's
limiting instruction, and we find them to be meritless.
3 Our use of the term "slight" does not lower the government's burden
to something less than "beyond a reasonable doubt," however. The word

                    7
Thus, a defendant may be convicted of conspiracy"if he . . . under-
stand[s] . . . [its] unlawful nature . .. and willfully joins in the plan
on one occasion, . . . even though he had not participated before and
even though he played only a minor part." Id. at 858 (internal quota-
tion and citations omitted). Further, a defendant's connection to a
conspiracy may be proved by circumstantial evidence. See id. at 857-
58.

The trial court denied Rodriguez's motion to acquit based on: (1)
Rodriguez's arrival with Cortina at Barrena's apartment on January
29, 1992, where Barrena was to pay Cortina for the 30 kilos of
cocaine that Cortina had fronted to Barrena; (2) the question Rodri-
guez asked, "Where's Miguel?," at Barrena's apartment; and (3) Bar-
rena's statement to DEA agents, after speaking with Cortina, that an
associate would accompany Cortina to pick up the cash at Barrena's
apartment. Rodriguez argues that this evidence was insufficient to
prove that he joined the North Carolina conspiracy. It merely puts him
at the scene of a crime and does not prove he was anything more than
an innocent bystander. There is more to the story, however. We con-
clude that other circumstantial evidence, coupled with the evidence
relied upon by the trial court, was sufficient to lead a reasonable jury
to conclude that Rodriguez joined the North Carolina conspiracy.

Rodriguez's mere presence at the scene of a drug-related transac-
tion does not prove he was involved in a conspiracy. However, his
actions show that he was more than just an innocent bystander. First,
he drove Cortina to Barrena's apartment and brought firearms along
with him. Drug dealers often use firearms to protect their money and
drugs, and a jury could infer from their presence that Rodriguez knew
of the impending exchange of cash and brought the firearms along to
protect himself and Cortina after they obtained the cash. Second,
_________________________________________________________________

"slight" does not describe the quantum of evidence that the government
must adduce to prove a defendant's connection with the conspiracy, but
rather the degree of the defendant's connection with the conspiracy. See
Burgos, 94 F.2d at 861. We use "slight" to emphasize that a defendant
may join a conspiracy without knowing its full scope, without participat-
ing in all of its overt acts, and without being a member from beginning
to end. See id.

                     8
Rodriguez's question, "Where's Miguel?," indicates that Rodriguez
knew the exchange of cash was related to a drug transaction. Rodri-
guez's expectation that Barrena's brother Miguel, who was Barrena's
contact with Cortina, would be present at the meeting suggests that
Rodriguez knew why Barrena was paying Cortina. From this, a jury
could conclude that Rodriguez knew exactly why Cortina was going
to Barrena's apartment on January 29.

Of course, a defendant cannot be convicted of conspiracy simply
because he knows of its existence and its unlawful ends. The defen-
dant must join the conspiracy to be convicted. Here, the testimony of
Oropeza and Agent Camacho concerning Rodriguez's prior drug
activities in Florida with (among others) Cortina was probative of
Rodriguez's intent. From this testimony a reasonable jury could con-
clude that Rodriguez was not just Cortina's driver, but rather Corti-
na's associate in the drug business. Indeed, that is what Barrena told
the DEA agents after he spoke with Cortina -- that an associate of
Cortina's would accompany him (Cortina) to Barrena's apartment.
This evidence (the Rule 404(b) evidence combined with the other evi-
dence discussed above) was sufficient to lead a reasonable jury to
conclude, beyond a reasonable doubt, that Rodriguez knowingly and
voluntarily joined the North Carolina conspiracy by helping Cortina
obtain drug proceeds from Barrena.

Rodriguez argues that he could not have joined the North Carolina
conspiracy after Evans, Barrena and Escobar were arrested. On Janu-
ary 29, 1992, he argues, the other participants in the drug sale, Bar-
rena and Evans, were not co-conspirators because they were working
for the government. One cannot be convicted of conspiracy if his only
"co-conspirator" is an undercover government agent. See United
States v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995). However, the govern-
ment's failure to prove that Rodriguez joined the conspiracy before
Evans, Escobar and Barrena were arrested does not render Rodri-
guez's conviction invalid. The government had to prove that Rodri-
guez joined the same conspiracy as Evans, Escobar and Barrena, but
it did not have to show that Rodriguez joined that conspiracy while
they were active. Rodriguez's conviction is valid because Cortina,

                    9
another member of the North Carolina conspiracy, remained active in
the conspiracy on January 29, 1992.4

C.

Rodriguez also contends that the delay between his indictment and
trial constituted a denial of his statutory and constitutional rights to
a speedy trial. First, Rodriguez argues that the time lapse between his
indictment on February 6, 1992, and his trial on March 29, 1993, vio-
lated the Speedy Trial Act (STA), 18 U.S.C. § 3161, which requires
that defendants be tried within 70 days of indictment. The 70-day
STA clock does not run continuously, however. It is tolled during
delays attributable to continuances granted to either the defendant or
the government when the court finds that the continuance would serve
"the ends of justice." See § 3161(h)(8)(A). Further, each defendant's
STA clock stops for continuances that are properly granted to his co-
defendants. See United States v. Sarno, 24 F.3d 618, 622 (4th Cir.
1994); § 3161(h)(7). Moreover, when multiple defendants are joined
for trial, the STA clock does not start to run until the last co-defendant
has been indicted. See Henderson v. United States, 476 U.S. 321, 323
n.2 (1986); 18 U.S.C. § 3161(h)(7).

Here, beginning on March 24, 1992, the court granted successive
continuances to Rodriguez, his co-defendants and the government in
order to serve "the ends of justice." These continuances pushed the
defendants' joint trial date back from the April 1992 term to the April
1993 term. Rodriguez does not challenge any of these continuances
nor did he move to sever his co-defendants. As a result, Rodriguez's
STA clock ran for less than 70 days, up through March 24, 1992,
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4 Since we hold that the evidence was sufficient to convict Rodriguez
of conspiracy, we reject his claim that venue was improper. A conspiracy
may be prosecuted in any district in which an act in furtherance of the
conspiracy was committed. See United States v. Al-Talib, 55 F.3d 923,
928 (4th Cir. 1995). Here, even if the trial court erred by failing to
instruct the jury on venue, that error was harmless. By finding Rodriguez
guilty of joining a conspiracy whose members admitted to distributing
crack throughout the Western District of North Carolina, the jury surely
found that an act in furtherance of the conspiracy occurred in that dis-
trict.

                     10
before it was tolled. Therefore, his rights under the Speedy Trial Act
were not violated.

Rodriguez also claims that the fourteen-month delay between his
indictment and trial violated his Sixth Amendment right to a speedy
trial. We employ a balancing test to determine whether the delay in
bringing a defendant to trial violated the Sixth Amendment. We con-
sider: (1) the length of the delay, (2) the reasons for the delay, (3) the
timeliness and vigor of the defendant's assertion of his right to a
speedy trial, and (4) the degree of prejudice the defendant suffered as
a result of the delay. See Doggett v. United States, 505 U.S. 647, 651
(1992); Barker v. Wingo, 407 U.S. 514, 530 (1972). For a defendant
to prevail the four factors must, on balance, weigh in his favor. See
United States v. Thomas, 55 F.3d 144, 148 (4th Cir. 1995). Applying
the test, we find no violation of the Sixth Amendment.

First, we consider the "threshold requirement" of whether the delay
from indictment to trial was "uncommonly long." United States v.
Grimmond, 137 F.3d 823, 827 (4th Cir. 1998). This factor weighs in
Rodriguez's favor. A delay of about one year in bringing a defendant
to trial is "unreasonable enough" to implicate the Sixth Amendment
speedy trial right. Thomas, 55 F.3d at 149 (quoting Doggett, 505 U.S.
at 652 n.1). As a result, we must consider the other three factors to
determine whether the delay violated that right. See Doggett, 505 U.S.
at 652; Barker, 407 U.S. at 530.

The second factor, the government's excuse for the delay, can be
valid, improper, or neutral. See Grimmond, 137 F.3d at 828. An
improper reason weighs heavily for the defendant, while a valid rea-
son weighs for the government; a neutral reason weighs slightly
against the government because "the ultimate responsibility for such
[delays] must rest with the government rather than with the defen-
dant." Id. (quoting Barker, 407 U.S. at 531). Here, most of the delay
in bringing Rodriguez to trial was attributable neither to Rodriguez
nor to the government but to continuances granted on the motion of
various co-defendants. Rodriguez objected to each motion, but the
continuances to serve "the ends of justice" cannot be blamed on the
government. In fact, the only continuance the government obtained on
its own motion was done at a co-defendant's request. Further, Rodri-
guez himself asked for and received two continuances which

                     11
accounted for four of the first six months of his wait for trial. On bal-
ance then, the reason for the long (fourteen-month) delay between
Rodriguez's indictment and trial was neutral.

The third factor, invocation of the speedy trial right, weighs only
slightly in Rodriguez's favor. He asserted his right vigorously by
objecting to each continuance granted after September 1992. Of
course, up to that time Rodriguez himself had been among those
defendants seeking continuances that had caused the delay. The trial
court thus cannot be blamed for granting his co-defendants' later
motions for continuances over his objection.

Finally, the fourth factor, prejudice, weighs decidedly against
Rodriguez. Rodriguez offers no credible claim of prejudice resulting
from his wait to be tried. He claims that he was confronted with a new
indictment, in Florida, as a result of his wait for trial in North Caro-
lina. Yet the government did not gain any tactical advantage from this
new indictment. Nor did it introduce evidence of that indictment at
trial. Although the government introduced evidence of Rodriguez's
drug dealing activities in Florida, that evidence was known to the
government well before the Florida indictment was handed down.

Weighing these four factors, we conclude that the delay of over a
year between Rodriguez's indictment and trial did not violate the
Sixth Amendment. Rodriguez waited a lengthy period for his trial, but
this wait was not too long because the interests of justice required the
trial court to grant continuances to several co-defendants. Although he
did eventually seek to protect his speedy trial right, he did so after
twice moving for (and receiving) continuances. Moreover, Rodriguez
shows no prejudice from the delay.5
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5 We also reject Rodriguez's claim that he was denied a speedy appeal
in violation of the Due Process Clause. We use the same balancing test
to evaluate the right to a speedy appeal as we do for the right to a speedy
trial. See United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir. 1984).
Under this test, a two-year delay between sentencing and appeal consti-
tutes an inordinate delay, one sufficient to raise due process concerns.
See id. at 382. However, there was no prejudice from the delay here
because Rodriguez's appeal is lacking in merit. See id. at 382-83.
Although we recognize that every effort must be made to avoid unjusti-
fied delays in the appeals process, Rodriguez's speedy appeal right was
not violated in this case.

                     12
III.

We have considered all of the other issues Rodriguez raises,
including his arguments about jury instructions, double jeopardy and
sentencing, and we find no merit to them. Therefore, his conviction
is

AFFIRMED.

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