United States v. Trejo

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 14, 2002
• Docket: 02-50051
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50051 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY FLORES TREJO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-534-1 -------------------- November 13, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Johnny Flores Trejo appeals his jury conviction for

conspiracy to possess with intent to distribute cocaine, and

aiding an abetting possession with intent to distribute cocaine,

in violation of 21 U.S.C. §§ 841, 846, and 18 U.S.C. § 2. We

address Trejo’s arguments in turn.

First, the affidavit supporting the search warrant was not a

“bare bones” affidavit because it stated that the officer had

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-50051 -2-

“received information from a reliable and credible

individual . . . who in the past has given this officer reliable

information which has proven to be true and correct as to the

trafficking in controlled substances” and that the confidential

informant (CI) had seen Trejo in possession of cocaine within the

previous 24 hours at the location described in the affidavit.

See United States v. McKnight, 953 F.2d 898, 905 (5th Cir. 1992);

Christian v. McKaskle, 731 F.2d 1196, 1198, 1200 (5th Cir. 1984);

see also United States v. Satterwhite, 980 F.2d 317, 321-22 (5th

Cir. 1992).

Second, the Speedy Trial Act, 18 U.S.C. § 3161(b), was not

violated because the thirty-day speedy-trial period started only

when Trejo was indicted, and thus detained, in connection with

the present crime. See United States v. Taylor,814 F.2d 172,

174-75 (5th Cir. 1987); Cowart v. Hargett, 16 F.3d 642, 645-46

(5th Cir. 1994) (applying Speedy Trial Act to state detention).

Next, evidence of Trejo’s prior felony conviction was

admissible under FED. R. EVID. 404(b) to show Trejo’s intent,

which was placed at issue by Trejo’s “not guilty” plea. See

United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994);

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en

banc). The evidence possessed considerable probative value that

was not substantially outweighed by undue prejudice under FED. R.

EVID. 403. Beechum, 582 F.2d at 911. No. 02-50051 -3-

Trejo failed to show that his admissions made at a

supervised release revocation hearing were involuntary or

otherwise inadmissible at trial. The trial court did not abuse

its discretion by admitting the statements.

Trejo fails to show that the trial court should have given

further consideration to a so-called 28 U.S.C. § 2255 motion

filed prior to trial. The motion was not the proper vehicle for

raising the claims Trejo asserted.

Trejo fails to show plain error where the trial court

performed the functional equivalent of an in camera review of a

fellow conspirator’s Pre-Sentence Report (“PSR”), and where

Trejo’s attorney expressed complete satisfaction with the court’s

handling of the PSR matter. See United States v. Jackson, 978

F.2d 903, 909 (5th Cir. 1992).

The district court did not abuse its discretion by refusing

to allow four witnesses to testify at the sentencing hearing to

rebut the PSR. Trejo and his counsel reviewed the PSR, filed

objections and a presentencing memorandum, but failed to show

that there was a dispute over material facts that the court could

not resolve without a hearing. See United States v. Henderson,

19 F.3d 917, 927 (5th Cir. 1994); United States v. Mueller, 902

F.2d 336, 347 (5th Cir. 1990).

The judgment of the district court is AFFIRMED.