United States of America, Plaintiff-appellee, v. Gregory Celaya-garcia, Defendant-appellant, 583 F.2d 210 (5th Cir. 1978)

Defendant Gregory Celaya-Garcia was found guilty of conspiracy, possession and distribution of heroin in violation of 21 U.S.C. §§ 841 and 846. On appeal defendant contends that the district court abused its discretion in denying his motion to transfer the trial to the Southern District of California. Second, defendant insists that his Sixth Amendment right of confrontation was violated when taped statements of coconspirators were admitted, even though the coconspirators were not available for cross-examination. Finally, defendant asserts that the admission of testimony regarding drug transactions that occurred subsequent to the sales charged in the indictment was error. We affirm.

Defendant claims that the trial should have been transferred to California because the criminal acts charged against defendant took place in Los Angeles, and that the preparation of defendant's case was prejudiced by the inconvenience of conducting the trial in New Orleans, Louisiana. Our review of the district court's decision to deny defendant's Fed. R. Crim. P. 21(b)¹  motion is limited to determining if an abuse of discretion has occurred. See, e. g., United States v. Walker, 5 Cir., 1977, 559 F.2d 365, 372. Evidence admitted at trial revealed that the existence of the conspiracy including defendant was first discovered in New Orleans, and that defendant sold heroin to Gus Marchand in California with the knowledge that Marchand intended to sell the drug in New Orleans. The district judge's expression of concern regarding compliance with the Speedy Trial Act does not constitute an abuse of discretion, as significant delay could well have accompanied the transfer to California. In any case, defendant has not shown that any substantial right has been affected, and has relied instead on allegations of possible alibi witnesses that amount to no more than bare speculation.²  Defendant's complaint concerning the Government's expansion of the time in which the heroin transaction involving defendant took place is also meritless, as the allegations of prejudice are equally speculative.³ 

Defendant's claim regarding his right to confront his alleged coconspirators is groundless. The taped conversations between defendant's coconspirators Marchand and Guadalupe Yaney-Monje were properly admitted under Fed.R.Evid. 801(d) (2) (E), as statements by coconspirators during the course and in furtherance of the conspiracy.⁴  The final contention is that the district court improperly admitted testimony regarding a heroin transaction involving defendant and his coconspirators on February 17, 1977, approximately two months after the transaction charged in the indictment. This evidence was properly admitted without a cautionary instruction as it demonstrated the continuing plan of the conspiracy. See United States v. Netterville, 5 Cir., 1977, 553 F.2d 903, 918; United States v. Perez, 5 Cir., 1973, 489 F.2d 51, 70.

AFFIRMED.