UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 92-2233 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FREDDIE OCAMPO ARCE and HAROLD PINEDA-VELEZ,
Defendants-Appellants.
___________________________________________________
Appeals from the United States District Court for the Southern District of Texas ____________________________________________________ August 3, 1993
Before WISDOM, DAVIS, and SMITH, Circuit Judges.
DAVIS, Circuit Judge:
Freddie Ocampo Arce ("Arce") and Harold Pineda-Velez
("Pineda") appeal their convictions for conspiracy to possess with
intent to distribute and for aiding and abetting the possession
with intent to distribute of over five kilograms of cocaine, in
violation of 18 U.S.C. § 2 and 28 U.S.C. §§ 841(a)(1) and
841(b)(1)(A). We find no reversible error and affirm.
I.
In July, 1991, Carl Fessler, acting as a confidential
informant for the DEA, contacted an acquaintance from prison, Juan
Sosa, to arrange a purchase of 100 kilograms of cocaine. Sosa
testified that he contacted Pedro Gemin, another prison acquaintance, who invited Sosa to Houston to set up the
transaction. While in Houston, Sosa was introduced to Albero
Ramos. Ramos, in turn, contacted appellant Pineda.
Sosa went back to Miami for a few days, then returned to
Houston when Gemin notified Sosa that part of the transaction was
to take place in Houston. Gemin and Sosa met with Fessler and two
undercover officers posing as buyers in a hotel and agreed to a
sell 50 kilos of cocaine for approximately $500,000. Gemin and
Sosa agreed to sell an additional 50 kilos to be delivered in
Chicago. After that meeting, Sosa and Gemin met with Ramos. Gemin
testified that Ramos called Pineda to tell him that they had seen
the money.
On August 7, 1991, Pineda met with Gemin at Wyatt's Cafeteria
to arrange the details of the sale. At Pineda's request, Gemin got
a car from Ramos, a gold Oldsmobile, to serve as the load vehicle
for the cocaine. Gemin dropped off the car, with the keys inside,
at the Wyatt's Cafeteria and called Pineda with the license plate
number. Pineda was to drop off the car loaded with cocaine at
Gemin's residence later that afternoon.
Gemin and Sosa then went to the Marriott Hotel and met Fessler
and Officer George Helton, one of the "buyers." They agreed that
Helton would accompany Gemin to his home and call Fessler when the
cocaine arrived. Sosa would wait with Fessler at the hotel; when
Helton called, Fessler was to release the money to Sosa.
An hour and a half later, officers observed a red Sunbird and
a gold Oldsmobile approaching Gemin's home. Gemin met Pineda and
appellant Arce, whom Pineda introduced as the person in charge, at
2 the front door. Gemin testified that the two men entered the
house, and Pineda told Gemin that he had only 35 kilos of cocaine,
instead of the promised 50 kilos. After Gemin expressed
disappointment and Arce appeared ready to leave, Pineda suggested
that Gemin speak to his people about accepting the reduced
quantity. Gemin met with Helton in another room, and Helton agreed
to accept the 35 kilos. Gemin then took the keys to the Oldsmobile
and pulled the car into his garage. After he was shown the
cocaine, Helton called Fessler at the Marriott. Law enforcement
officers immediately entered the house and arrested the defendants.
Arce, Pineda, Sosa, and Gemin were charged in a two-count
indictment with conspiracy to possess over five kilograms of
cocaine with intent to distribute and with aiding and abetting in
the possession of over five kilograms of cocaine with intent to
distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A). After a full trial, a jury convicted
Arce and Pineda on both counts. The court sentenced Arce to 235
months imprisonment, five years supervised release, and a special
assessment of $100. Pineda received a sentence of 190 months
imprisonment, five years supervised release, and a $100 special
assessment. Both defendants now appeal their convictions.
II.
Defendants first challenge the district court's ruling
permitting the government to make two peremptory challenges to the
jury venire. Pineda and Arce both allege race discrimination in
the prosecutor's peremptory challenge of a Spanish-speaking juror.
In addition, Pineda argues that the trial court erred in striking
3 for cause another juror who had been convicted for heroin
possession. We address these arguments in turn.
A.
The prosecutor exercised a peremptory challenge to strike
Antonio Barajas, a Spanish-speaking venireperson. Pineda and Arce
contend that the district court erred in overruling their
objection, based on Batson v. Kentucky, 476 U.S. 79 (1986), that
the strike was racially motivated.
During voir dire, the defense asked whether any member of the
panel knew Spanish, and Mr. Barajas indicated that he could
understand, read, and speak Spanish. Neither the court nor the
attorneys questioned Mr. Barajas further. The prosecutor exercised
a peremptory challenge to excuse this juror. In response to
defense counsel's Batson objection, the prosecutor explained the
challenge as follows:
[T]he reason I struck him was because his employment was only a short period of time. He has been at Anheuser- Bush [sic] for only six months. He was also the only person who indicated, as I recall, that he spoke, was fluent in the Spanish language. I had some concern that if there was any translations to be given that, of course, the jury panel would have to rely on the translation that was given from that was admitted into evidence, and that some concern that perhaps someone who spoke Spanish, they may give a different version of the Spanish in the jury, primarily for those two reasons.
Arce's attorney responded, "We would question that, because the
prosecutor had ample time to question the juror. He did not. He
chose not to question the juror about whether that could affect or
become a factor in this proceeding." The court ruled that "[t]he
Supreme Court indicated that that's a legitimate reason for
striking someone. I am satisfied that that's a legal reason."
4 The defendants failed to challenge the prosecution's first
reason for excusing Mr. Barajas, his short time of employment.
Because this reason was not facially race-related and the defense
did not dispute that explanation, the district court had no need to
rule on its validity.
The Second Circuit has held that a defendant waives objection
to a peremptory challenge by failing to dispute the prosecutor's
explanations:
Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim. . . . By failing to dispute the Government's explanations, [defendants] appeared to acquiesce in them. As a result, there was no need for the district judge to make a ruling.
United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990). By failing
to dispute the prosecutor's short-term employment explanation in
the district court, defendants have waived their right to object to
it on appeal. Mr. Barajas's short time of employment thus stands
as an uncontested basis for excusing him, and we need not consider
his Spanish language ability as an explanation for the challenge.
B.
Pineda also argues that the district court erred in striking
for cause a venireperson who had a prior conviction for heroin
possession. Pineda acknowledges that 28 U.S.C. § 1865(b)(5)
disqualifies from jury service a person who "has been convicted in
a State or Federal court of record of[] a crime punishable by
imprisonment for more than one year and his civil rights have not
been restored." According to Pineda, however, § 1865(b)(5)
unconstitutionally discriminates against convicted felons.
5 We have no trouble concluding that § 1865(b)(5) is
constitutional. The constitutionality of § 1865(b) is subject to
rational basis review. See Shepherd v. Trevino, 575 F.2d 1110,
1115 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979) (holding
that selective disenfranchisement or reenfranchisement of convicted
felons is subject to rational basis review). Several appellate
courts have upheld § 1865(b)(5) under this standard. See United
States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979); United States v.
Greene, No. 92-3052, 1993 WL 101848 at *5 (8th Cir. April 8, 1993).
We agree with those courts that excluding convicted felons
from jury service does not violate the constitutional guarantee of
equal protection. The government has a legitimate interest in
protecting the probity of juries. Excluding convicted felons from
jury service is rationally related to achieving that purpose.
III.
We consider next two challenges to the district court's
evidentiary rulings. Arce contends the district court erred in
admitting drug ledgers into evidence without proper authentication.
Pineda argues that the court erred in admitting a codefendant's
testimony about a jailhouse conversation between Pineda and Arce.
Arce contends that the district court abused its discretion in
admitting into evidence ledgers reflecting drug transactions
between Henry William Nunez, a known cocaine trafficker, and
someone named "Fredy." The ledgers reflected drug transactions
with "Fredy" on August 5 and August 7, 1991. The government
contended that "Fredy" referred to the defendant, Freddie Arce.
6 The August 5 entry, under the name "Fredy," bore the number "2"
followed by the date and time, "10 pm." The government offered
evidence that an undercover officer purchased two kilos of cocaine
at that time from a person who had just obtained the cocaine from
an individual driving a car registered to Arce's wife. The second
ledger entry reflected the number "35," the date, and "pm"; this
entry corresponded to the 35-kilo sale in this case. An officer
testified that the two kilos from the August 5th transaction were
wrapped similarly to the 35 kilos recovered on August 7th. Police
recovered the ledgers from Nunez's home after Arce's arrest.
Arce argues that the evidence was inadmissible for two
reasons: the government failed to properly authenticate the ledgers
and the ledgers were inadmissible hearsay. We find no abuse of
discretion in admitting the ledgers.
Evidence Rule 901(a) provides that "[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims."
We have stated that
[t]his Court does not require conclusive proof of authenticity before allowing the admission of disputed evidence. . . . Rule 901 does not limit the type of evidence allowed to authenticate a document. It merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be.
United States v. Jimenez-Lopez, 873 F.2d 769, 772 (5th Cir. 1989).
The government may authenticate a document with circumstantial
evidence, "including the document's own distinctive characteristics
and the circumstances surrounding its discovery." United States v.
7 Smith, 918 F.2d 1501, 1510 (11th Cir. 1990), cert. denied, 116
L.Ed.2d 117 (1991).
The government presented ample evidence in this case to
authenticate the drug ledgers. Perry Podaras testified that he
worked for Nunez, that these particular ledgers resembled drug
ledgers that Nunez maintained, and that the handwriting on the
ledgers was similar to Nunez's handwriting. Officers found the
ledgers at Nunez's home. This evidence was sufficient to establish
that the ledgers were indeed drug ledgers maintained by Nunez.
Arce also argues that the ledgers were inadmissible hearsay.
Federal Rule of Evidence 801(d)(2)(E) creates an exception to the
hearsay rule for a statement that "is offered against a party and
is . . . a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy." See United States v.
El-Zoubi, No. 92-1128, 1993 WL 187997 at *2 (5th Cir. June 4,
1993). The evidence in this case was sufficient to show under the
preponderance standard that Nunez and Arce were involved in a
conspiracy to distribute cocaine and that the ledger entries were
made in furtherance of that conspiracy. The conspiracy that forms
the basis for admitting coconspirators' statements need not be the
same conspiracy for which the defendant is indicted. United States
v. Triplett, 922 F.2d 1174, 1181 (5th Cir.), cert. denied, ___ U.S.
___, 111 S.Ct. 2245 (1991). Podaras testified that Arce and Nunez
were acquainted and that Nunez had sold cocaine to Arce. Law
enforcement officers had seen Arce at Nunez's residence. Arce's
delivery of 35 kilos of cocaine to Gemin on August 7, 1991,
supports a finding that the August 7 ledger entry was a record of
8 that transaction. Similarly, the August 5 ledger entry accurately
reflects the details of the two-kilo cocaine sale, which involved
a similarly-wrapped brick of cocaine delivered by a person driving
a gold 1991 Chevrolet Cavalier registered to Arce's wife. Arce had
purchased a 1991 Cavalier several months earlier. Based on this
evidence, the district court did not abuse its discretion in
admitting the drug ledgers into evidence.
Pineda argues that the district court abused its discretion in
permitting a coconspirator, Juan Sosa, to testify to a jailhouse
conversation between Arce and Pineda. Sosa testified that he
overheard Pineda express disbelief that Arce was still responsible
for paying for the 35 kilos of cocaine confiscated at the time of
the arrest. According to Sosa, Arce responded that he did have to
pay for the cocaine and that he could pay for it in Colombia.
Pineda argues that the court improperly permitted Sosa to
testify to the conversation under the coconspirator exception to
the hearsay rule, because the conspiracy ended when Arce and Pineda
were arrested. We agree with Pineda that, ordinarily, "a person's
participation in a conspiracy ends when the person is arrested for
his role in the conspiracy." United States v. Goff, 847 F.2d 149,
170 (5th Cir.), cert. denied, 488 U.S. 932 (1988). Moreover,
contrary to the government's contention, there is no evidence that
the conspiracy continued after defendants' arrest. See United
States v. Register, 496 F.2d 1072, 1078-79 (5th Cir. 1974), cert.
denied, 419 U.S. 1120 (1975).
The court's other basis for admitting Sosa's testimony, that
9 the conversation amounted to a declaration against interest under
Rule 801(d)(2)(A), is also unpersuasive. If true, the statements
would not expose Pineda to any further civil or criminal liability.
We therefore conclude that the district court erred in
admitting this evidence. However, the error was harmless. The
conversation did tend to show Pineda's and Arce's connection with
the cocaine. But the overwhelming evidence in the case already
established Pineda's involvement in the cocaine conspiracy. Sosa
testified that he knew of the supplier as "Harold" (Pineda's first
name). Gemin testified that Ramos contacted Pineda to get the
cocaine and that Gemin met with Pineda on more than one occasion to
arrange the details of the sale. In addition, Gemin testified that
he provided Pineda with the load vehicle for the cocaine. Officers
on surveillance observed Pineda, along with Arce, drive up to
Gemin's residence at the time of the cocaine deal. Pineda assisted
in the 35 kilo sale. When the officers seized the cocaine, Pineda
was arrested after he jumped through a window. Thus, we conclude
that the hearsay evidence had no substantial effect on the jury's
verdict. See El-Zoubi, 1993 WL 187997 at *3.
IV.
Pineda next argues that the evidence was insufficient to
support his conviction for aiding and abetting possession with
intent to distribute at least five kilograms of cocaine. We should
reach this conclusion, he argues, because the DEA chemist tested
only two of the packages of cocaine, totalling 2026 grams.
Pineda's argument is meritless.
We have held that proof of the quantity of drugs involved does
10 not go to guilt or innocence under § 841(a), but rather goes
strictly to the sentence. United States v. Sherrod, 964 F.2d 1501,
1507 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1422
(1993). Since Pineda has not objected to his sentence, his
argument lacks merit.
Moreover, the facts are not as Pineda suggests. DEA chemist
James Iwamoto testified that, pursuant to DEA policy, he randomly
selected two of the 35 blocks of white powder and removed the
wrappings to determine the individual blocks' net weight. Iwamoto
determined that the average weight of each block was 1,013 grams;
from that determination, Iwamoto extrapolated the total weight of
the powder to be 40,909 grams. Iwamoto then analyzed samples from
eleven of the blocks, selected at random, and determined that the
cocaine was 87% pure. Iwamoto further testified that all 35 blocks
tested positive for the presence of cocaine. The record amply
supports Pineda's conviction.
V.
Pineda finally contends that the district court erred in
permitting the prosecutor to express his opinion about the
credibility of the government's witnesses. In his closing
argument, the prosecutor stated:
I mean, [the cooperating codefendants] could have really slam-dunked him if they were just there trying to help me; and I don't think counsel for the defense meant to say that, but I feel like I kind of need to say something about it, or if I had put them up to some type of testimony.
They don't pay me enough money to try to prosecute people who I don't believe or who the evidence hasn't shown me are guilty of a crime.
[Defense objection]
11 As to [Assistant U.S. Attorney] Mr. Ray Montgomery, I have known Ray Montgomery since I started practicing law some years ago. I would be afraid--
THE COURT: This is argument, counsel, but let's stay within the evidence, please.
Pineda argues that the prosecutor improperly gave his personal
opinion about the credibility of witnesses and the strength of the
government's case. See United States v. Di Loreto, 888 F.2d 996
(3d Cir. 1989). The government contends that the prosecutor was
merely responding to defense counsel's repeated insinuations during
cross-examination that the prosecution had coached the
codefendants' testimony. The government also argues that any error
was harmless.
We agree that the defense opened the door to the prosecutor's
comments by implying that the government had encouraged the
codefendants to testify falsely. Defense counsel made the
following comments during cross-examination of Pineda's
codefendants:
Q [To Juan Sosa]: The prosecutor hasn't told you anything about what can happen to you by you getting up here on the witness stand and saying exactly what they want you to say?
Q [To Pedro Gemin]: You have spoken with the prosecutor getting ready for this case, and based on that, it's his belief that Mr. Arce and Mr. Pineda are guilty, and that's what he wants you to testify about, correct? . . .
Q But it's [the prosecutor's] desire that you testify to matters that would indicate Mr. Arce and Mr. Pineda are guilty?
[Objection sustained]
Q The only way [the prosecutor] would think that you were lying is if you took the witness stand and said
12 these men were not guilty?
[Objection sustained].
The prosecutor obviously was responding to the defense's
suggestions that the government had coached its witnesses. We have
held that "if the prosecutor's remarks were 'invited,' and did no
more than respond substantially in order to 'right the scale,' such
comments would not warrant reversing a conviction." United States
v. Smith, 930 F.2d 1081, 1088 (5th Cir. 1991) (quoting United
States v. Young, 470 U.S. 1, 14 (1985)).
Even if the comments were improper, any error was harmless.
"[I]mproper argument harms the defendant if it affects his
substantial rights." United States v. Simpson, 901 F.2d 1223, 1227
(5th Cir. 1990). In order to determine whether the prosecutor's
comments harmed Pineda, we examine (1) the magnitude of the
statements' prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of
Pineda's guilt. Id.
The prosecutor's remarks to which Pineda objects were brief,
and when the judge indicated his disapproval, counsel quickly moved
to a different subject. Finally, the evidence against Pineda was
strong. After reviewing the prosecutor's comments in light of the
entire record, we conclude that even if the comments were error,
they were harmless error.
VI.
For the reasons stated above, we affirm the convictions of
Pineda and Arce.
AFFIRMED.