Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. F CR 84-15 -- William C. Lee, Judge.
Before CUMMINGS, Chief Judge, and BAUER and POSNER, Circuit Judges.
Defendant, Walter Rojas, appeals from his criminal conviction below. Rojas was convicted on one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and on three counts of using a telephone to facilitate the commission of a felony in violation of 21 U.S.C. § 843(b). Rojas alleges that the Speedy Trial Act was violated when he was brought to trial less than thirty days after the government of its own volition returned a superceding indictment against him. Rojas also alleges that the trial court erred when it admitted evidence obtained in a consent search of his apartment because that consent was not freely and voluntarily given. We disagree with Rojas' arguments and affirm the judgment of the trial court.
On December 6, 1984, a grand jury returned a thirteen count indictment against Rojas and several co-defendants. The indictment charged Rojas with one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and three counts of using a telephone to facilitate the commission of felony in violation of 21 U.S.C. § 843(b). Rojas was arraigned on December 19, 1984. He was represented at the arraignment by counsel, who first entered his appearance on that date. On January 24, 1985, Rojas moved to dismiss the three telephone counts on the ground that they failed to allege a specific felony. On February 8, 1985, the trial court granted Rojas' motion to dismiss the three counts because those counts failed to name the controlled substance involved in the felony facilitated by telephone. Following dismissal of these three counts, the government of its own volition sought a superceding indictment. On February 25, 1985, the grand jury returned a superceding indictment. This indictment was also in thirteen counts and was in every respect identical to the December 6, 1984 indictment except that the three telephone counts against Rojas now specifically alleged that the controlled substance involved was cocaine. Rojas' trial began on March 12, 1985 and concluded on March 15, 1985. Rojas was found guilty on all four counts. He received a fifteen year sentence on the conspiracy count, concurrent four year sentences on the telephone counts, and a $340,000 fine. This appeal followed.
Rojas alleges that the government's failure to allow thirty days between the time that the superceding indictment was returned and the date of trial was a violation of the Speedy Trial Act. We disagree. The Speedy Trial Act guarantees a defendant thirty days between the time his counsel first appears and trial. 18 U.S.C. § 3161(c)(2). If an entire indictment is dismissed upon motion of the defendant and the defendant is reindicted on the same offense, the Act provides that the thirty day clock begins to run anew. 18 U.S.C. § 3161(d)(1). If only a few count are dismissed on defendant's motion, however, as in this case, and the government returns a superceding indictment of its own volition, the defendant is not entitled to a new thirty day trial preparation period. United States v. Rojas-Contreras, 474 U.S. 231, 88 L. Ed. 2d 537, 106 S. Ct. 555 (1985). Thus, Rojas was not entitled to a new thirty day period after the superceding indictment was returned. He was only entitled to what he received, thirty days between the time his counsel first appeared, December 19, 1984, and trial, March 12, 1985.
Roja also alleges that he did not freely and voluntarily consent to a search of his apartment and thus admission at trial of evidence obtained in that search was reversible error. Although we find this issue more troublesome, we disagree.
Whether a search is undertaken with the free and voluntary consent of the defendant is a determination that must be made by examining the totality of circumstances in each individual case. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). The determination is a factual one that cannot be overturned on review unless clearly erroneous. United States v. Borys, 766 F.2d 304, 314 (7th Cir. 1985); United States v. Morgan, 725 F.2d 56, 58 (7th Cir. 1984). We thus review the details surrounding this search.
Rojas is a Colombian national. He was born in Colombia but lived in the United States for two years before the search. At the time of the search he was 26 years old. He graduated from high school in Colombia and also completed four years of electrical engineering school and one year of law school there. Rojas spoke some English.
The search of Rojas' apartment took place in conjunction with Rojas' arrest. Seven law enforcement officials from various state and federal agencies (including the FBI, the Drug Enforcement Administration, the Allen County, Indiana, Sheriff's Office, and the Indiana State Police Department) arrived at Rojas' apartment at 8:25 P.M. to execute a valid warrant for Rojas' arrest. Special Agent Kuba of the FBI knocked on the door, and Rojas opened it. Kuba told Rojas in English that Kuba was an FBI agent with a warrant for Rojas' arrest for distribution of cocaine. Kuba asked Rojas if he was Rojas. When Rojas replied in the affirmative, Kuba ordered hi, again in English, to place his hands on the wall. Kuba entered the apartment followed by the other agents. Rojas was then searched and handcuffed behind his back. Kuba asked Rojas if he understood English, and Rojas replied that he did. Kuba then read Rojas the arrest warrant.
Kuba made a brief survey of the apartment to locate any other persons and make sure the apartment was safe. He found two friends of Rojas, Ms. Valencia and Ms. Galiano. Special Agent Ava Cooper of the Drug Enforcement Administration told the women not to talk, did a pat-down search of them, and questioned them in Spanish about their immigration status. Ms. Valencia produced a visa. Ms. Galiano had no identification and indicated that her visa had expired. Cooper told Ms. Galiano that is she could not provide proof of her status, she would be detained at the Allen County jail to await immigration officials. Special Agent Cooper then obtained consent ...