USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1882
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN J. STAULA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Selya, Stahl and Lynch, Circuit Judges.
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Martin K. Leppo for appellant.
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Todd E. Newhouse, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief, for
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appellee.
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March 29, 1996
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SELYA, Circuit Judge. A federal grand jury charged
SELYA, Circuit Judge.
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defendant-appellant Stephen J. Staula, in relevant part, with
being a felon in possession of a firearm (count 1) and ammunition
(count 2), and with receiving a stolen firearm (count 3). See 18
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U.S.C. 922(g)(1), (j). Following a five-day trial, the petit
jury convicted the appellant on all three counts.1 The court
imposed an incarcerative sentence.
In this appeal, Staula labors to convince us that the
district court thrice erred in denying his motions to (i) dismiss
the indictment for want of a speedy trial, (ii) suppress
evidence, and (iii) direct judgment of acquittal. We are not
persuaded that any error occurred.
I
I
_
Background
Background
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We sketch the facts in the light most hospitable to the
jury's verdict. See United States v. Ortiz, 966 F.2d 707, 711
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(1st Cir. 1992), cert. denied, 506 U.S. 1063 (1993).
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During the early evening of September 13, 1993, officer
David Tyrie of the Hanover police department stopped a pickup
truck for patent violations of the state motor vehicle code. See
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Mass. Gen. L. ch. 90, 6 (requiring, inter alia, a front license
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plate on every commercial vehicle); id. 7 (requiring, inter
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alia, operable brake lights). The appellant proved to be the
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driver and registered owner of the ill-equipped vehicle. A
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1The indictment also charged the appellant with two drug-
related offenses. The jury acquitted him on these counts and we
eschew any further reference to them.
2
female companion named Myriah Morse, later to become Staula's
wife, occupied the passenger's seat.
Tyrie testified that he smelled burnt marijuana when he
first approached the driver's side window to demand a
registration certificate and operator's license. He then
retreated to his cruiser with the documents and called for
backup. After two other officers arrived, Tyrie revisited the
vehicle and inquired whether the occupants had been smoking
marijuana. He also asked whether they had any marijuana in the
truck. Both Staula and Morse answered the queries in the
negative.
Apparently unconvinced by these disclaimers and by
Morse's volunteered statement that she recently had burned
incense in the vehicle, Tyrie sought the appellant's consent to
search the truck. After having been rebuffed, he ordered the
appellant to alight, searched the driver's side of the cab
(discovering no contraband), directed Morse to alight, searched
the other side of the cab, and found two bags of marijuana behind
the passenger's seat. Arrests followed all around.
Prior to impounding the vehicle, Tyrie conducted a
standard inventory search and discovered a fully loaded handgun
(which had been reported as stolen in November of 1992) and a box
of ammunition behind the passenger's seat. The gun and
ammunition were located within inches of the marijuana, and
within easy reach of the driver. The weapon's hammer was cocked.
At trial, the appellant built his defense around the
3
assertion that he lacked any knowledge of the drugs and weaponry.
To this end, he presented the testimony of a friend, Ralph Nason,
who claimed that he purchased the marijuana and, in a separate
transaction, accepted the gun and ammunition from an
acquaintance; borrowed the pickup truck from Staula on Saturday,
September 11; placed the described articles in the vehicle; and
then drove to New Hampshire. Nason supposedly remained there
(with the truck and the contraband) until Sunday evening. He
claims to have returned the truck to the appellant on Monday
(only minutes before Tyrie made the traffic stop).
II
II
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Analysis
Analysis
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A.
A.
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The Speedy Trial Act
The Speedy Trial Act
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The appellant's principal claim is that the prosecution
did not bring him to trial within the time frame prescribed by
the Speedy Trial Act, 18 U.S.C. 3161-3174 (the Act), and
concomitantly, that the district court therefore should have
dismissed the indictment. In this case, the speedy trial claim
involves a straight question of law engendering de novo review.
See United States v. Rodriguez, 63 F.3d 1159, 1162 (1st Cir.),
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cert. denied, 116 S. Ct. 681 (1995); see also United States v.
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Gallo, 20 F.3d 7, 11 (1st Cir. 1994) (explaining that pure
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questions of law demand plenary appellate review).
The baseline premise of the Act is its requirement,
embodied in 18 U.S.C. 3161(c)(1), that a defendant is entitled
4
to be tried within seventy days of his indictment or initial
appearance before a judicial officer (whichever first occurs).
See United States v. Hastings, 847 F.2d 920, 924 (1st Cir.),
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cert. denied, 488 U.S. 925 (1988). The premise cannot be taken
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literally, however, for the Act contemplates that certain periods
of time will be excluded from the computation. See 18 U.S.C.
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3161(h). An inquiring court therefore must follow a two-step
process. First, the court must do the basic mathematics and
determine the aggregate time elapsed awaiting trial. Second, it
must determine how many days should be excluded from that
ultimate sum. See United States v. Sepulveda, 15 F.3d 1161, 1193
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(1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994).
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Here, the salient dates and events are essentially
undisputed. The speedy trial clock began to tick on October 26,
1994 (the date of arraignment). See id. (describing date of
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inception of speedy trial period). The clock stopped ticking on
March 16, 1995 (the date on which the appellant filed his motion
to dismiss under the Act). See United States v. Connor, 926 F.2d
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81, 84 (1st Cir. 1991) (holding that "a motion for dismissal
[under the Act] is effective only for periods of time which
antedate the filing of the motion"). Excluding March 16, see
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Rodriguez, 63 F.3d at 1163-64 (reiterating that the date on which
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a motion is filed is not counted), the aggregate period amounts
to 140 days.
We now take the second step in the pavane. This step
begins and ends with the appellant's motion to suppress. The
5
appellant served this motion on November 17, 1994, and
simultaneously requested an evidentiary hearing. The government
filed an opposition. The magistrate judge assigned to hear
pending motions reserved the suppression motion for the district
judge. On March 22, 1995, Judge Tauro discussed the motion with
counsel but made no ruling. On the day trial began (April 18,
1995), the judge denied the motion from the bench without
convening an evidentiary hearing. He also denied the motion to
dismiss primarily on the basis that the period between the filing
of the suppression motion (November 17, 1994) and what he termed
the "preliminary hearing" thereon (March 22, 1995) constituted
excludable time under the Act.
The appellant challenges this ruling. He contends that
the brief exchange on March 22 did not comprise a "hearing" for
purposes of the Act. The point is significant because the Act
provides that delay connected with a pending pretrial motion,
"from the filing of the motion through the conclusion of the
hearing on, or other prompt disposition of, such motion," is
excludable. 18 U.S.C. 3161(h)(1)(F). For motions that require
a hearing,2 this subsection excludes the time between the filing
of the motion and the hearing on that motion, even if the delay
is overlong, inexplicable, or unreasonable. See Henderson v.
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2It is often arguable whether a particular motion requires a
hearing. See generally United States v. Tannehill, 49 F.3d 1049,
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1052 n.4 (5th Cir.), cert. denied, 116 S. C.t 167 (1995). Here,
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the appellant requested a hearing on his motion, thus
acknowledging that one was appropriate. Consequently, we need
not discuss the factors that determine whether a given motion
"requires" a hearing.
6
United States, 476 U.S. 321, 329-30 (1986); United States v.
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Johnson, 29 F.3d 940, 942-43 (5th Cir. 1994); United States v.
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Clymer, 25 F.3d 824, 830-31 (9th Cir. 1994); United States v.
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Noone, 913 F.2d 20, 27 n.10 (1st Cir. 1990), cert. denied, 500
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U.S. 906 (1991). Thus, if the March 22 encounter comprises a
hearing within the purview of the Act, the district court
appropriately excluded all the time accrued after November 17,
1994.
The Act itself does not define the term "hearing," and
the case law on this point is relatively sparse. It is clear,
however, that due process rarely demands full evidentiary
hearings, see Doyle v. Secretary of HHS, 848 F.2d 296, 302 (1st
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Cir. 1988) (collecting cases), and we are confident that
something less than a full evidentiary hearing will suffice to
engage the gears of 3161(h)(1)(F). Two recent Fifth Circuit
cases are instructive. In United States v. Tannehill, 49 F.3d
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1049 (5th Cir.), cert. denied, 116 S. Ct. 167 (1995), the court
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declared that, at a minimum, "the term includes a situation in
which the district court hears argument of counsel and considers
[those arguments] prior to making its ruling." Id. at 1053.
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Utilizing this standard, the court held that a discussion of the
merits of the defendant's motion at the outset of trial
constituted a hearing for purposes of the Act. See id.
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In United States v. Grosz, ___ F.3d ___ (5th Cir. 1996)
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[No. 94-10922, 1996 WL 75726], a brief exchange concerning a
pending motion occurred between the district court and counsel
7
for the government (in which defense counsel, although present,
did not play a part). See id. at ___ [1996 WL 75726 at *2].
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Applying the Tannehill standard, the panel found this abbreviated
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colloquy to be a hearing within the purview of the Act. See id.
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at ___ [1996 WL 75726 at *4]. The court said that a hearing
occurs whenever the district judge discusses the merits of a
motion with counsel for the party against whom the ruling on the
motion is ultimately rendered. See id.
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In the case at hand, the trial court heard arguments
put forward by the appellant's counsel in open court, on the
record; questioned him; and gave him the opportunity to highlight
salient facts. The court then gave the prosecutor a similar
opportunity. In our view, this give-and-take among counsel and
the court, notwithstanding its relative brevity, is the essence
of what a hearing entails. And, moreover, there was good reason
for the exchange: the appellant had requested that the court
take evidence, and the court was not in an optimal position to
rule upon the appellant's suppression motion until it questioned
counsel and determined the need for, and the potential efficacy
of, an evidentiary hearing.
To say more would be to add hues to a rainbow. We hold
that a hearing is any on-the-record colloquy in which the
district court hears the arguments of counsel and considers those
arguments prior to deciding a pending motion. Measured by this
yardstick, the proceedings on March 22 constitute a hearing for
purposes of 18 U.S.C. 3161(h)(1)(F). It follows inexorably
8
that the district court properly excluded the entire period from
November 17, 1994 through March 22, 1995 (a date beyond the date
on which the appellant filed his motion to dismiss).3 See
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Henderson, 476 U.S. at 330.
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This ruling defenestrates the speedy trial claim.
Computing the total time elapsed between the date of the
appellant's first appearance and the date on which he filed his
motion to dismiss for want of a speedy trial (140 days), and
subtracting the portion of that time excludable due to the
pendency of the motion to suppress (118 days), it is abundantly
clear that trial commenced within the time frame mandated by the
Act.
B.
B.
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The Motion to Suppress
The Motion to Suppress
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The objection to the district court's disposition of
the motion to suppress has both substantive and procedural
aspects. We discuss them seriatim.
1. Probable Cause. A police officer may effect a
1. Probable Cause.
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warrantless search of the interior of a motor vehicle on a public
thoroughfare as long as he has probable cause to believe that the
vehicle contains contraband or other evidence of criminal
activity. See, e.g., United States v. Martinez-Molina, 64 F.3d
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3We join the Fifth Circuit, see Grosz, ___ F.3d at ___ n.7
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[1996 WL 75726 at *9], in warning that we will not permit either
the district court or the prosecution to jerry-build a "hearing"
in order to thwart the concinnous operation of the Speedy Trial
Act. Here, however, the record contains no hint of such
contrivance, and, for that matter, the appellant has levelled no
such charge.
9
719, 726 n.5 (1st Cir. 1995); United States v. Panitz, 907 F.2d
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1267, 1271 (1st Cir. 1990). In this instance, the appellant's
asseveration that the police lacked probable cause for the search
elevates hope over reason.
In assessing "whether the government has made a
sufficient showing of probable cause, a reviewing court must
examine the `totality of the circumstances.'" United States v.
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Nocella, 849 F.2d 33, 39 (1st Cir. 1988) (quoting Illinois v.
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Gates, 462 U.S. 213, 230 (1983)). On appeal, this assessment
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entails acceptance of the lower court's factual findings unless
those findings are clearly erroneous, but necessitates plenary
review of the lower court's legal conclusions. See United States
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v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994); United States v.
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Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir. 1991), cert.
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denied, 502 U.S. 1030 (1992). Moreover, the law recognizes that
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a vehicle search under this exception may encompass all areas of
the vehicle in which the suspected contraband is likely to be
found. See United States v. Maguire, 918 F.2d 254, 260 (1st Cir.
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1990), cert. denied, 499 U.S. 950 (1991). Applying these
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principles, it is readily apparent that the court below did not
err in finding probable cause and ratifying the search.
Tyrie's affidavit asserts unambiguously that he
detected an aroma of burnt marijuana when he first approached the
pickup truck. The case law is consentient that when a law
enforcement officer detects the odor of marijuana emanating from
a confined area, such as the passenger compartment of a motor
10
vehicle, that olfactory evidence furnishes the officer with
probable cause to conduct a search of the confined area. See
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United States v. Johns, 469 U.S. 478, 482 (1985); United States
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v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995); United States v.
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French, 974 F.2d 687, 692 (6th Cir. 1992), cert. denied, 506 U.S.
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1066 & 507 U.S. 978 (1993). Thus, Tyrie had a right to search
the entire passenger compartment of the pickup truck. See United
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States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993).4
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The appellant also assails the second phase of the
search (during which Tyrie located the gun and ammunition). That
search was lawful for three reasons. First, the extent of a
permissible search is often incremental. See, e.g., United States
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v. Giannetta, 909 F.2d 571, 574, 577 (1st Cir. 1990). Here,
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Tyrie's discovery of the marijuana gave him probable cause to
continue to hunt within the passenger compartment for more
contraband. See, e.g., Maguire, 918 F.2d at 260. Second, the
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appellant cannot seriously dispute that when Tyrie spied the
marijuana, he had probable cause to arrest the truck's occupants.
See, e.g., United States v. Uricoechea-Casallas, 946 F.2d 162,
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4The appellant's attempt to dilute the force of these cases
is disingenuous. He cites other decisions suggesting that the
existence of probable cause to search the passenger compartment
of a vehicle does not necessarily confer a right to search the
trunk. See, e.g., Nielsen, 9 F.3d at 1491. Expanding on this
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theme, he then posits that Tyrie could not search behind the
seats in the pickup truck. The fly in this ointment is that the
space behind the seats, in which Tyrie found the marijuana, is
part of the truck's passenger area, and no amount of wordplay can
change that fact. Since the aroma of marijuana wafted from the
passenger area, that region became fair game for a drug search
under the automobile exception to the warrant requirement. See
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United States v. Ross, 456 U.S. 798, 825 (1982).
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11
166 (1st Cir. 1991). Having lawfully arrested the driver in the
course of a highway stop, the authorities may search the driver's
vehicle for contraband. See New York v. Belton, 453 U.S. 454,
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460-61 (1981); United States v. Reyes-Mercado, 22 F.3d 363, 366
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n.4 (1st Cir. 1994). Under this rule, the second phase of
Tyrie's search can be justified as incident to a lawful arrest.
Third, when a driver is lawfully arrested and thus disabled from
continuing his journey, the Constitution permits the police to
carry out a routine inventory examination incident to impounding
the vehicle. See Zapata, 18 F.3d at 978; United States v. Ramos-
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Morales, 981 F.2d 625, 627 (1st Cir. 1991), cert. denied, 113 S.
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Ct. 2384 (1993). In this case, the second phase of the search
fit comfortably within this integument.
On any of these bases, the gun and ammunition were
themselves the fruits of a lawful search and, hence, admissible
at trial. Accordingly, the district court did not err in denying
the motion to suppress.
2. Lack of an Evidentiary Hearing. The appellant next
2. Lack of an Evidentiary Hearing.
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berates the trial court for two ostensible procedural blunders:
denying him an evidentiary hearing on his motion to suppress and
shunning its responsibilities under Fed. R. Crim. P. 12(g). The
criticism is unwarranted.
It is apodictic that a criminal defendant is not
entitled, as a matter of right, to an evidentiary hearing on
every motion that he deigns to file. See, e.g., Panitz, 907 F.2d
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at 1273; United States v. Pellerito, 878 F.2d 1535, 1545 (1st
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12
Cir. 1989). A hearing is required only if the movant makes a
sufficient threshold showing that material facts are in doubt or
dispute, and that such facts cannot reliably be resolved on a
paper record. See United States v. Lilly, 983 F.2d 300, 310-11
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(1st Cir. 1992); Panitz, 907 F.2d at 1273. Most importantly, the
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defendant must show that there are factual disputes which, if
resolved in his favor, would entitle him to the requested relief.
See, e.g., Lilly, 983 F.2d at 310-11. The district court has
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considerable discretion in determining the need for, and the
utility of, evidentiary hearings, and we will reverse the court's
denial of an evidentiary hearing in respect to a motion in a
criminal case only for manifest abuse of that discretion. See
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id. at 311.
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In this instance the district court correctly concluded
that it would be pointless to convene an evidentiary hearing.
The finding of probable cause hinged on Tyrie's statement that he
smelled burnt marijuana when he first ventured near the pickup
truck. The appellant filed an affidavit in which he stated that
Tyrie did not mention the aroma of marijuana until he returned to
the vehicle a second time. On this basis, the appellant surmises
that Tyrie's reference to marijuana was pretextual, that is, that
Tyrie did not actually detect the fragrance of marijuana, but,
rather, having learned of the appellant's criminal record when he
checked the appellant's license and registration, proceeded to
concoct the story to justify his desire to search the truck. In
the appellant's view, an evidentiary hearing would have smoked
13
out the truth.
The asseveration is profoundly flawed. Even accepting
the substance of the appellant's affidavit as true, the affidavit
contains no facts that contradict the officer's direct statement
that he smelled burnt marijuana on his initial approach to the
truck. Whether Tyrie mentioned the marijuana when he first
detected the odor is hardly the point. It is fully consistent
with competent police work for a lone officer to call for
reinforcements when he discovers that something more than a
routine traffic stop may be in progress. By not tipping his hand
at the outset, Tyrie would merely be exercising reasonable
prudence. Against this backdrop, the bare assertion of pretext
does not create a factual conflict sufficient to justify an
evidentiary hearing. See, e.g., United States v. LaBonte, 70
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F.3d 1396, 1412-13 (1st Cir. 1995) (explaining that a district
court need not convene an evidentiary hearing when presented with
"no more than conclusory prognostications and perfervid
rhetoric").
The appellant's claim that the district court violated
Fed. R. Crim. P. 12(g) is equally jejune. That rule does not
demand that the trial court hold an evidentiary hearing on every
affected motion. It simply requires the court to ensure that a
verbatim record is made of all proceedings and hearings,
including "such findings of fact and conclusions of law as are
made orally." Fed. R. Crim. P. 12(g). The transcripts of the
March 22 colloquy and the judge's subsequent denial of the motion
14
to suppress fully satisfy the strictures of the rule.
C.
C.
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Sufficiency of the Evidence
Sufficiency of the Evidence
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The appellant's sufficiency challenge implicates all
three counts of conviction. In respect to counts 1 and 2, he
suggests that there was inadequate evidence to show that he
knowingly possessed either the gun or the ammunition. Regarding
count 3, he adds that the government produced no evidence that
the gun had travelled in interstate commerce after having been
stolen. We discern no merit in these contentions.
We review the trial court's denial of a motion for
judgment of acquittal de novo. See United States v. Valle, 72
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F.3d 210, 217 (1st Cir. 1995). The measure by which we size up
challenges to evidentiary sufficiency in a criminal case is a
familiar one: "If the evidence presented, taken in the light
most agreeable to the government, is adequate to permit a
rational jury to find each essential element of the offense of
conviction beyond a reasonable doubt, then the defendant's claim
fails." Id. at 216. In pursuing this inquiry, we resolve all
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credibility conflicts to the government's benefit, and harmonize
all reasonable inferences with the jury's verdict. See United
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States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995). By like
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token, we concern ourselves with the weight and persuasive power
of the evidence, not its nature, for either direct or
circumstantial evidence, or any combination thereof, may suffice
to defeat a motion for acquittal. See United States v. Spinney,
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15
65 F.3d 231, 234 (1st Cir. 1995).
1. Scienter. Turning first to counts 1 and 2, the
1. Scienter.
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statute of conviction, 18 U.S.C. 922(g)(1), requires proof of
three elements: (1) that the defendant had a record of prior
felonious conduct, yet (2) knowingly possessed a gun (or
ammunition), (3) in circumstances that implicated interstate
commerce. See United States v. Powell, 50 F.3d 94, 101 (1st Cir.
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1995). The appellant concedes that the government proffered
sufficient evidence to support findings beyond a reasonable doubt
anent the first and third of these elements but disputes the
sufficiency of the evidence regarding the second: his knowing
possession of the firearm and the ammunition. His plaint boils
down to a plea that the jury was duty bound to accept the only
direct testimony on the subject Nason's averment that he placed
the gun and ammunition in the truck, returned it only minutes
before the arrest, and never called the added contents to the
appellant's attention and not to go beyond it.
There are two major problems with this suggested
approach. First, Nason's story, even if believed, does not
necessarily exonerate the appellant; the latter might still have
discovered the contraband between the time when Nason returned
the truck and Tyrie flagged it down. Second, the jury was not
obliged to accept Nason's testimony in whole or in part, but
could instead draw reasonable inferences from the totality of the
circumstances. See, e.g., United States v. Olbres, 61 F.3d 967,
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971 (1st Cir.), cert. denied, 116 S. Ct. 622 (1995); United
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16
States v. O'Brien, 14 F.3d 703, 707 (1st Cir. 1994).
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These problems are exacerbated by the other evidence in
the record. The circumstantial proof of knowing possession is
very strong. The appellant was both the owner and operator of
the vehicle and, from where he sat, he had easy access to the gun
(which seemed ready for immediate use) and the ammunition. Since
the appellant exercised dominion and control over the area in
which the gun and the ammunition were discovered, see United
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States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993), the jury
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was at liberty to find that he was in knowing constructive
possession of the weaponry. See United States v. Wight, 968 F.2d
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1392, 1398 (1st Cir. 1992) (holding that "the element of `knowing
possession' under section 922(g)(1) may be established by proving
that the defendant was in constructive possession of a firearm");
see also United States v. Bergodere, 40 F.3d 512, 518 (1st Cir.
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1994) (explaining that knowledge may be established from
circumstances attendant to constructive possession), cert.
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denied, 115 S. Ct. 1439 (1995). In short, the jury's conclusion
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concerning the appellant's knowing possession is eminently
supportable on this record.
2. Interstate Commerce. The appellant raises a more
2. Interstate Commerce.
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focused challenge to his conviction on count 3. Bolstered by a
recent Ninth Circuit case, United States v. Cruz, 50 F.3d 714,
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719 (9th Cir. 1995), he insists that under the statute of
conviction, 18 U.S.C. 922(j), it is an element of the offense
that the firearm travel in interstate commerce after being
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17
stolen, and that the government's evidence here failed to nail
down this element.
The difficulty with this argument is twofold. In the
first place, we reject the notion that, to trigger 922(j), a
firearm must reenter the stream of interstate commerce after its
theft. This court turned aside a similar challenge under 18
U.S.C. 922(g) in United States v. Gillies, 851 F.2d 492, 493-95
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(1st Cir.), cert. denied, 488 U.S. 857 (1988), and we find the
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rationale in Gillies to be persuasive. Thus, consistent with
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that rationale we hold that, under 922(j), it is enough if the
weapon floats in the stream of commerce at some point prior to
the commission of the offense of conviction. Accord United
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States v. Honaker, 5 F.3d 160, 162 (6th Cir. 1993), cert. denied,
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114 S. Ct. 1226 (1994). Because the appellant does not dispute
that the firearm travelled in interstate commerce before coming
to rest in his pickup, he cannot prevail.
The finishing touch is that there was evidence at trial
that the firearm travelled interstate as a stolen firearm. The
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appellant's own witness, Nason, swore that he took the gun with
him from Massachusetts to New Hampshire only a few days before
the police found the weapon in the appellant's possession (and
several years after the gun had been reported stolen). Thus,
even if post-theft travel were an element of the offense, the
verdict would not be undercut.5
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5The fact that the evidence of interstate travel was adduced
in the defense case, rather than in the prosecution's case, is of
no consequence. The court of appeals may properly consider all
18
III
III
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Conclusion
Conclusion
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We need go no further. Because the government brought
the appellant to trial within the period prescribed by the Speedy
Trial Act, and no other error in the proceedings appears, the
judgment below must be
Affirmed.
Affirmed.
________
____________________
evidence presented when confronting a sufficiency challenge. See
___
United States v. Arache, 946 F.2d 129, 138 (1st Cir. 1991), cert.
_____________ ______ _____
denied, 502 U.S. 948 (1992).
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19
