UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10755
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDWARD RUBEN SOTELO, ERNEST CASTRO QUINTANA, HENRY ARGUIJO, GARY ARTIAGA, LAWRENCE ANTHONY FLORES, and JOE ANGELO SOTELO, JR.,
Defendants-Appellants.
Appeals from the United States District Court for the Northern District of Texas October 8, 1996
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Defendants-Appellants challenge their convictions and
sentences relating to a drug trafficking conspiracy. Finding no
reversible error, we affirm.
I. BACKGROUND
a. Proceedings in the district court
Appellants were charged in a twelve-count indictment involving
a marijuana and cocaine distribution conspiracy in the Fort Worth,
Texas area that began in 1990 and continued through January 19,
1 1995. A jury returned guilty verdicts as to all six appellants on
the conspiracy count (Count 1). Henry Arguijo, (“Arguijo”) who was
named only in the conspiracy count, received a 160 month prison
term for his conviction on Court 1.
In addition to the conspiracy conviction, Edward Sotelo was
found guilty of continuing criminal enterprise (Count 2),
possession of cocaine with intent to distribute (Counts 6 & 10),
use of a communication facility to commit a felony (Counts 7, 8 &
9), possession of marijuana with intent to distribute (Count 11)
and distribution of cocaine (count 12).1 He was sentenced to life
in prison2 and given a $50,000 fine.
Joe Sotelo was found guilty of possession of cocaine with
intent to distribute (Count 6) as well as the conspiracy
conviction. He was also sentenced to life in prison.
Ernest Quintana (“Quintana”) was found guilty of possession of
cocaine and marijuana with intent to distribute (Counts 10 & 11) in
addition to the conspiracy count. He received 151 months in
prison.
Lawrence Flores (“Flores”) was found guilty of distribution of
cocaine (Count 12) and conspiracy. He was sentenced to 235 months
1 Edward Sotelo was acquitted on two counts of distribution of cocaine (Counts 3 & 4) and the district court granted the Government’s motion to dismiss one count of possession of cocaine with intent to distribute (count 5). 2 Concurrent sentences, periods of supervised release and mandatory special assessments were also part of the sentences imposed by the district court. However, because they add unnecessary complexity to the recitation of facts and are not relevant to the issues before this Court, they are not referenced here.
2 in prison.
Gary Artiaga (“Artiaga”) was convicted for using a
communication facility to commit a felony (Count 9) and conspiracy.
The district court sentenced him to 270 months in prison and a
$25,000 fine.
b. Facts
From 1988 to 1992 Edward Sotelo worked for Arguijo, delivering
cocaine purchases ordered from Arguijo. Beginning in early 1992,
purchasers begin ordering cocaine directly from Edward Sotelo.
Although Edward Sotelo still did drug business with Arguijo, it
appears that they were peers or that Arguijo began working for
Edward Sotelo after 1992. Twelve narcotics offenders and numerous
law enforcement officers testified at trial about the general
operation of the Sotelo drug business and the following specific
incidents.
Video surveillance on a warehouse leased by Artiaga revealed
little traffic, but included visits by Edward Sotelo, Artiaga,
Flores. A video tape was introduced at trial showing Edward
Sotelo, Flores and Government witness Troy Williams at the
warehouse. Williams, who purchased 60-70 kilograms from the Sotelo
organization between 1991 and 1994, testified that he sometimes
picked up his cocaine from the warehouse. Williams also testified
concerning drug deals with Artiaga, Flores and Joe Sotelo.
Appellants’ codefendant Eric Bryant pleaded guilty to drug
charges and testified at trial about his eight-year history as a
drug customer of the Sotelo drug organization. He normally
3 purchased cocaine in kilogram quantities, cooked it into crack and
sold the crack. On June 2, 1994, police intercepted telephone
conversations from Edward Sotelo’s residence in which Edward Sotelo
set up a two-kilogram cocaine transaction. Joe Sotelo then
delivered approximately a kilogram of cocaine to Eric Bryant in a
cereal box. Police, who had been watching the transaction, stopped
Bryant shortly after the transaction and recovered the box of
cocaine.
Kevin Blevins, another Government witness, began purchasing
drugs from Edward Sotelo and Quintana in 1993. At first he bought
large amounts of marijuana and small amounts of cocaine, but later
increased his cocaine purchases to kilogram quantities. In August
1994, Blevins was arrested. During the arrest Edward Sotelo paged
him several times. Blevins agreed to answer the page and set up a
drug buy from Edward Sotelo. An undercover policeman went with
Blevins to the buy. Edward Sotelo, who was driving the car, and
Quintana, the passenger, were spooked by the undercover officer’s
presence and fled the scene. During the subsequent high-speed
chase, a bag containing ten pounds of marijuana and a kilogram of
cocaine was thrown from the car.
On June 18, 1993, Juan Robles, one of Sotelo’s suppliers, sold
five kilograms of cocaine to Joe Sotelo, received payment but
delivered flour instead of cocaine. To make Robles return the
money, Joe Sotelo, Edward Sotelo, Flores and another man, kidnapped
Robles’s fourteen-year-old brother, Gilberto Robles. Gilberto was
threatened and hit, but sustained no injury except and small bump
4 on the head. The police got involved, but were hindered because
Gilberto was too scared of the Sotelos to cooperate with the
police. He was eventually returned home by the police.
Arthur Franklin, another Government witness, was arrested for
a drug offense and had agreed to cooperate with the DEA before he
became involved with the Sotelo organization. He set up a 5-
kilogram cocaine deal with Edward Sotelo. When the cocaine was
delivered, the police monitored the transaction and Edward Sotelo
and Flores were arrested.
II. SUFFICIENCY OF THE EVIDENCE
a. Standard of review
A conviction must be allowed to stand if, after viewing the
evidence in the light most favorable to the prosecution, the
reviewing court finds that a rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.
Ed. 2d 570 (1979).
b. Edward Sotelo
Edward Sotelo challenges the sufficiency of the evidence to
support his convictions on Count 2, Continuing Criminal Enterprise
and Count 12, Distribution of Cocaine.
A conviction for Continuing Criminal Enterprise (CCE) requires
proof that a defendant organized, supervised or managed five or
more persons in a continuing series of drug violations from which
the defendant obtained substantial income. See 21 U.S.C. § 848.
“Such relationships need not have existed at the same moment in
5 time. It is sufficient if there exist separate, individual
relations of control with at least five persons. Furthermore, the
requisite five persons need not act in concert at the same time.
Additionally, the same type of superior-subordinate relationship
need not exist between the supervisor and each of the five other
persons involved.” United States v. Phillips, 664 F.2d 971, 1013
(5th Cir. 1981) (citations omitted), cert. denied, 457 U.S. 1136,
102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982). The Government need not
prove that the defendant is the “single ringleader.” Id. at 1034.
Edward Sotelo argues that the evidence proved separate
multiple conspiracies rather than a single conspiracy. He contends
that he was acting independently from other individuals, as
evidenced by referrals to Sotelo from other drug sellers when they
did not have enough cocaine to fill an order. In determining
whether single or multiple conspiracies exist, this Court looks at
three factors: (1) the existence of a common goal; (2) the nature
of the scheme; and (3) overlap of the participants. United States
v. Maceo, 947 F.2d 1191, 1196 (5th Cir. 1991), cert. denied, 504
U.S. 949, 112 S. Ct. 1510, 117 L. Ed. 2d 647 (1992). First, the
common goal was the sale of cocaine and marijuana; second, the
nature of the scheme, to sell large quantities of drugs to others
who were responsible for retailing it, is consistent throughout the
evidence; and third, all of the indicted codefendants and
cooperating Government witnesses were interrelated except witness
Arthur Franklin, who came in at the end as an undercover informant.
The evidence in the record is sufficient to establish Edward
6 Sotelo’s criminal liability for a CCE under the criteria set out in
Phillips. Edward Sotelo’s attack on his Continuing Criminal
Enterprise conviction is without merit.
In order to prove that a defendant distributed a controlled
substance, the Government must prove that the defendant
(1)knowingly (2) distributed (3) the controlled substance. See 21
U.S.C. § 841(a)(1). Count 12 charged Edward Sotelo and Flores with
distribution of cocaine in connection with the drug buy set up by
Franklin, after which Edward Sotelo and Flores were arrested.
Sotelo contends that his conviction in Count 12 rests solely on the
perjured testimony of Arthur Franklin. There is no basis in the
record before this Court for labeling Franklin’s testimony
perjured. Although his credibility was damaged because he
continued to sell drugs after he agreed to work for the Government,
his testimony about the specifics of the drug buy underlying Count
12 are corroborated by a taped phone conversation and by the
testimony of the police officer that was posted outside the
apartment during the buy. Viewing this evidence in the light most
favorable to the prosecution, a rational trier of fact could well
have found all the elements of distribution of cocaine beyond a
reasonable doubt.
c. Gary Artiaga
Artiaga challenges the sufficiency of the evidence to support
his conviction for conspiracy. Artiaga does not challenge the
existence of a conspiracy, but claims that he did not know about it
or participate in it. The lease for the group’s drug storehouse
7 was in Artiaga’s name and videotaped surveillance showed that he
visited the warehouse. The evidence in the record also includes
testimony that Peter Edwards purchased one kilogram of cocaine for
$20,000 from Artiaga and Edward Sotelo in 1993; that Artiaga
accompanied Edward Sotelo while Sotelo delivered drugs; and that
Artiaga advised a potential purchaser to call Edward Sotelo in
order to purchase drugs. The transcripts of two telephone
conversations between Artiaga and Edward Sotelo in which they
discussed drug negotiations, supply and prices to charge clients
were before the jury as well. Based on our review of the record,
we have concluded that the evidence was sufficient to support
Artiaga’s conviction for conspiracy.
d. Lawrence Flores
Flores argues that the evidence was insufficient to sustain
his convictions for Count 1 - conspiracy and Count 12 -
distribution of cocaine. Flores’s position on the conspiracy count
is that all the testimony implicating him in the conspiracy lacked
credibility. Testimony established that Flores accompanied Edward
Sotelo on a number of drug transactions, sometimes handed the drugs
to the customer and was present at the drug warehouse, all in
addition to his participation in the drug buy that resulted in his
arrest. Further, Flores contends that the evidence on Count 12 is
insufficient because it simply shows his presence at the drug buy.
However, the officer’s testimony established that Flores left the
apartment where Franklin’s drug buy was supposed to take place,
retrieved the drugs from a car and returned to the apartment,
8 indicating that Flores was not just innocently present at the scene
of the crime. The evidence is sufficient to sustain Flores’s
convictions on Counts 1 and 12.
e. Ernesto Quintana
Quintana contends that the Government failed to prove the
“knowledge” element of Counts 1, 10 & 11 as to Quintana. He
characterizes the evidence as showing that he was merely present
during some drug transactions. He contends that he did not even
know drug transactions were taking place. He also claims that the
evidence did not show that he agreed to commit any crime, as
required for the conspiracy conviction. The Government’s evidence
against Quintana included testimony that: Quintana accompanied
Edward Sotelo on a vast number of cocaine and marijuana deliveries,
Blevins purchased drugs from Edward Sotelo and Ernest Quintana on
a number of occasions, Quintana was present when the purchase price
was paid during these transactions, Quintana delivered marihuana to
Blevins by himself in one transaction and to Peter Edward on
another occasion, and Quintana was with Edward Sotelo during the
Blevins sting transaction in which they fled the scene. This
evidence is adequate to support the jury’s verdict.
III. EXCLUSION OF MINORITY MEMBERS FROM THE VENIRE
Appellants contend that they were denied their right to a
petit jury drawn from a fair cross section of the community. The
trial court’s factual determination that there was no systematic
exclusion of minority members from the venire is reviewed for clear
error. United States v. McKinney, 53 F.3d 664 (5th Cir.), cert.
9 denied, 116 S. Ct. 261, 133 L. Ed. 2d 184 (1995).
The trial court denied a motion by Edward Sotelo to quash the
jury panel because there was only one Hispanic person among the
fifty venire persons. To establish a prima facie violation of the
fair cross section requirement, the defendant must show that: (1)
the group alleged to be excluded is a “distinctive” group in the
community; (2) the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to
the number of such persons in the community; and (3) this under-
representation is due to systematic exclusion of the group in the
jury selection process. Duren v. Missouri, 439 U.S. 357, 99 S. Ct.
664, 58 L. Ed. 2d 579 (1979). Edward Sotelo asked the trial court
to assume factors 2 & 3 based on the fact that only one Hispanic
person was a member of a 50 person panel. It was not clear error
for the trial court to deny the motion to quash, as Edward Sotelo
failed to carry his burden to establish a prima facie violation.
IV. DISQUALIFICATION OF DEFENSE ATTORNEY
Edward Sotelo and Joe Sotelo contend that the district court
erred when it refused to permit the same attorney to represent four
of the nine indicted co-defendants. The district court’s
disqualification of a defense attorney for conflict of interest is
reviewed for abuse of discretion. United States v. Vasquez, 995
F.2d 40, 42 (5th Cir. 1993).
Joe Sotelo, Edward Sotelo, Flores and Artiaga were initially
represented by the same counsel, Denver McCarty. All four were
willing to waive any conflict of interest in order to allow McCarty
10 to represent them. Attorney McCarty told the district court that
he had discussed with each of his clients the possible effects of
plea offers and that he considered plea agreements unlikely for
these four defendants. The district court, after conducting a
hearing pursuant to Fed. R. Crim. P. 44(c)3, determined that there
was good cause to believe that a conflict would arise, particularly
in pretrial plea negotiations. He therefore ordered that each
defendant must have separate counsel. McCarty ultimately
represented only Artiaga. Edward Sotelo and Joe Sotelo appeal the
decision, arguing that they were deprived of their Sixth Amendment
right to choice of counsel.
The Sixth Amendment protects an accused person’s right to
select and be represented by his preferred attorney, although the
essential aim of the amendment is to guarantee an effective
advocate for each defendant rather than to ensure that a defendant
will inexorably be represented by the lawyer whom he prefers.
Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697,
100 L. Ed. 2d 140 (1988).
A defendant’s right to choice of counsel is limited “not only
by a demonstration of actual conflict, but by a showing of a
3 Rule 44(c) provides: Whenever two or more defendants have been jointly charged . . . and are represented by the same retained or assigned counsel . . . the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant’s right to counsel.
11 serious potential conflict” even where a defendant expresses a
desire to waive the potential conflict. Wheat v. United States,
486 U.S. 153, 164, 108 S. Ct. 1692, 1700 (1988). Appellants
acknowledge the wide discretion this rule gives the district court,
but characterize the court’s plea agreement concerns as
”unsupported and dubious speculation as to a conflict.”
We disagree. Under the Supreme Court’s analysis in Wheat,
“[t]he evaluation of the facts and circumstances of each case . .
. must be left primarily to the informed judgment of the trial
court.” Id. 486 U.S. at 164, 108 S. Ct. at 1700. Here, the trial
court explicitly applied the Sixth Amendment, and Wheat’s analysis
to the facts developed at the hearing on this issue, and concluded
that the Sixth Amendment would be better served in this case by
separate representation for each defendant, particularly during
pretrial plea negotiations. This conclusion is well supported by
the record. We find no abuse of discretion in the district court’s
decision to disqualify attorney McCarty from representing Joe
Sotelo and Edward Sotelo on the basis of potential conflicts of
interest.
BRADY IMPEACHMENT EVIDENCE
All of the Appellants contend that the Government’s failure
to timely disclose evidence which could have been used to impeach
witness Arthur Franklin was a violation of Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and that the trial
court erred in denying a motion for new trial based on this
failure. The United States Constitution forbids the Government
12 from withholding evidence favorable to the accused or useful for
impeachment of a witness who testified against the accused. Id.
Suppression of evidence favorable to the accused requires reversal
if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result would have been different.
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383,
87 L. Ed. 2d 481 (1985). A “reasonable probability” for the
purposes of this analysis is a probability sufficient to undermine
the confidence in the outcome. Id.
Four days after the jury returned its verdict, the Government
informed appellants that witness Arthur Franklin was still involved
in drug trafficking when he testified at trial. A Government agent
who testified at the trial received information about these
allegations on May 16, 1995, after Franklin had testified, but
before the close of evidence. He revealed the information
immediately to an Assistant United States Attorney not involved in
this case, but no one told the prosecutor in this case about the
information until after the verdict. The Government disclosed the
information to appellants on May 22, 1995.
Although all of the appellants contend that they are entitled
to a reversal on this ground, only Edward Sotelo and Flores were
implicated in the drug transaction about which Franklin testified.
The other appellants’ Brady claims are frivolous.
Assuming that Franklin’s continued involvement in drug
trafficking would have undermined his credibility, it is unlikely
that such impeachment evidence would have changed the verdicts as
13 to Edward Sotelo or Flores. The drug transaction which Franklin
testified about was monitored by DEA agents, whose testimony
corroborated Franklin’s testimony, and a tape of a telephone
conversation setting up the deal was admitted into evidence. We
cannot say, based on this record, that there was a reasonable
probability that, had the Government timely disclosed the evidence
of Franklin’s continued involvement in drug trafficking, the
outcome of the trial would have been different.
WRITTEN JURY CHARGE
Edward Sotelo and Artiaga contend that the district court
erred in denying a request that a written copy of the charge be
given to the jury during their deliberations. Determining whether
the jury should be given a written copy of the court’s charge is
within a trial judge’s discretion. United States v. Acosta, 763
F.2d 671, 677 (5th Cir.), cert. denied, 474 U.S. 863, 106 S. Ct.
179, 88 L. Ed. 2d 148 (1985).
A written charge was prepared and read to the jury. The
district court denied Artiaga’s request that a written copy of the
charge be given to the jury. Edward Sotelo and Artiaga claim this
was error since the charges were very complex and the jury needed
the written instructions to help them in their deliberations.
Appellants point out that the jury asked that a portion of the
instructions be read back to them during deliberations. The
district court read the portion requested twice. The Appellants
complain that by reading the requested portion of the charge, but
not re-reading other portions containing definitions of words used
14 in the re-read portion, the charge became unbalanced and the jury
may have been confused.
This Court has disapproved of the practice of giving a copy of
the jury instructions to the jury. United States v. Perez, 648
F.2d 219, 222 (5th Cir. Unit B), cert. denied, 454 U.S. 1055, 102
S. Ct. 602, 70 L. Ed. 2d 592 (1981). In addition, the Government
contends that the jury’s request that the court re-read one portion
of the charge indicates that they would have made other such
requests if they were uncertain about any other portions of the
charge. Based on the record before us, the denial of the motion to
give the jury a copy of the written charge was not an abuse of
discretion.
PROSECUTOR’S CLOSING ARGUMENT
Flores argues that the district court erred when it overruled
his objection to the prosecutor’s closing argument concerning
Franklin’s testimony in which he referred to Flores as “the chubby
man.” To warrant reversal of a conviction on grounds of improper
jury argument, a reviewing court must determine whether a
prosecutor’s comments were both “inappropriate and harmful.” See
United States v. Campbell, 49 F.3d 1079, 1084 (5th Cir.), cert.
denied, 116 S. Ct. 201, 133 L. Ed. 2d 135 (1995). Because Flores’s
objection to the remark at trial was based on a different theory
than that presented on appeal, this Court applies the plain error
standard of review.
During the Government’s closing jury arguments, the Prosecutor
said,
15 “. . . and then just forget about the fact, even though Arthur Franklin didn’t lie to you, and he could have lied to you and pointed at Larry Flores and said, “yeah, that was the fat man or the chubby man - -”
Flores’ counsel objected to this comment as not being in
evidence. The district court first sustained the objection, then
changed the ruling and overruled the objection because “it’s a
logical inference from the evidence.” Flores contends on appeal
that the comment improperly vouched for the credibility of the
Government’s witness.
A criminal defendant bears a substantial burden when
attempting to demonstrate that improper prosecutorial comments
constitute reversible error. United States v. Diaz-Carreon, 915
F.2d 951, 956 (5th Cir. 1990). He must show that the comments
substantially affected his right to a fair trial. Id. Three
factors are probative to this showing: “the magnitude of the
prejudicial effect of the remarks, the efficacy of any cautionary
instruction, and the strength of the evidence of the defendant’s
guilt.” Id. The magnitude of prejudicial remark here was minimal.
The judge’s ruling that the remark was a logical inference from the
evidence was correct as a response to Flores’ objection that it
“not in evidence.” However, for the first time on appeal, Flores
contends that the remark was objectionable because it bolstered the
witness’s credibility. The remark did have a bolstering effect,
but only marginally so. There was no cautionary instruction.
However, the strength of Flores’ guilt was strong. Based on the
application of the three-factor test, Flores has not shown that the
district court reversibly erred in overruling his objection to the
16 prosecutor’s comment because he has failed to demonstrate anything
close to plain error.
TIME LIMITATIONS ON FINAL ARGUMENT
Edward Sotelo, Artiaga, and Quintana contend that the district
court erred in refusing to allow them additional time for final
argument. The length of time allocated to counsel for closing
argument rests with the discretion of the trial court. United
States v. Moye, 951 F.2d 59 (5th Cir. 1992).
Each defendant in a multiple-count, multiple-defendant case
must be given adequate time in closing argument to mete out the
evidence and issues particular to that defendant and to
individualize his defense. United States v. Okoronkwo, 46 F.3d
426, 437 (5th Cir.), cert. denied, 116 S. Ct. 107, 133 L. Ed. 2d 60
(1995).
The district court initially advised the attorneys that the
Government would be permitted 30 minutes and the appellants
collectively 45 minutes. One of the appellants objected that 45
minutes was insufficient, and asked for 15 minutes per defendant.
The district court then ruled that the Government would be
permitted 30 minutes and each appellant would have 10 minutes, for
a total of one hour.
Appellants argue that 10 minutes per appellant unreasonably
curtailed their argument. Appellants contend that the case was
legally and factually complex, covered six years of activity and
multiple conspiracies, involved 40 witnesses and 133 exhibits, a
twelve-count indictment, and a 22-page jury charge. The Government
17 responds that appellants make only conclusory assertions to support
their claim, and made no offer of proof as to what arguments they
were foreclosed from presenting at trial. Having reviewed the
record, we find no abuse of discretion; the appellants’ closing
arguments adequately summarized the evidence and arguments and
nothing in the record indicates what additional items would have
been covered during closing had the trial allowed additional time.
JURY MISCONDUCT
Edward Sotelo, Joe Sotelo, Quintana and Artiaga contend that
the district court abused its discretion by denying their motions
for mistrial based upon jury misconduct and by failing to properly
investigate the allegation. Artiaga also contend that the district
court abused its discretion by denying his motion for new trial,
filed subsequent to trial, which was based upon the same
allegation. He also claims that the court erred in denying his
motion to contact and interview the jurors post-trial.
The district court’s decisions in handling complaints of
outside influence on the jury are reviewed for abuse of discretion.
United States v. Ramos, 71 F.3d 1150, 1153-54 (5th Cir. 1995),
cert. denied, 116 S. Ct. 1864, 134 L. Ed. 2d 962 (1996). The
district court must balance the probable harm resulting from the
emphasis that a particular mode of inquiry would place upon the
misconduct and the disruption occasioned by such an inquiry against
the likely extent and gravity of the prejudice generated by the
misconduct. Id. Because we as an appellate tribunal are in a poor
position to evaluate these competing consideration while the trial
18 court can better judge the mood and predilections of the jury, we
accord broad discretion to the trial court in these matters. Id.
Likewise, the district court’s decision to deny a post-trial
interview pursuant to Local Rule 8.2(e) is reviewed for abuse of
discretion. Salinas v. Rodriguez, 963 F.2d 791, 794 (5th Cir.
1992), citing United States v. Sedigh, 658 F.2d 1010, 1014 (5th
Cir. Unit A 1981), cert. denied, 455 U.S. 921, 102 S. Ct. 1279, 71
L. Ed. 2d 462 (1982).
During jury deliberations, juror Gloria Ayala stepped out of
the jury room and informed the court security officer that some of
the other jurors were making racial remarks that upset her. Ayala
remained in the alternate jury room while the district court
conferred with the parties. The district court proposed to bring
the entire jury into the courtroom and question Ayala about her
allegations. The defendants objected that the proposed procedure
was intimidating and coercive. The objection was denied. The jury
was brought into the courtroom and the district court explained
that he had received a complaint from Ayala, and that he had
brought them back into the jury room so that Ayala could explain
what was bothering her. The district court instructed Ayala not to
disclose any information about the deliberation process. The
following dialogue ensued:
THE COURT: Can you tell us what has happened that has caused you a concern, bearing in mind what I just told you about what you should not disclose without alerting me ahead of time that you would have to. And I think everyone is grown up, so be perfectly candid about what you heard and the problems that’s causing it.
19 JUROR AYALA: Without hurting anybody’s feelings, no, I can’t Judge. I can’t.
THE COURT: Well, like I say. I think everyone is grown up. If it’s simply a matter of hurting feelings, let’s go ahead and lay it on the line. If it’s a matter of disclosing the things I told you not to disclose, then we need to discuss the matter further. But if it’s simply a matter of hurting feelings, let’s lay it on the line.
JUROR AYALA: Well, I just feel like -- I don’t know. I just feel a lot of racial tension.
THE COURT: I’m sorry?
JUROR AYALA: Racial tension.
THE COURT: Well, is it because of specific things that have been said?
JUROR AYALA: In a roundabout way, yes.
THE COURT: Can you give me an example of something that’s been said that causes you to feel that way?
JUROR AYALA: Not in general, no. I mean, I thought I was a strong person, but after four days of this, I’m not.
THE COURT: You mean four days of trial?
JUROR AYALA: Well, yeah. Not so much the trial but activities: listening, everything like that.
THE COURT: Are you saying that since the trial started, you had a sense of -- Well, say to me what you have had a sense of since the trial started so I won’t put words in your mouth.
JUROR AYALA: You know, these are Mexican boys. I’m a Mexican, okay. These people are looking at them as Mexicans.
THE COURT: Looking at what?
JUROR AYALA: Looking at these boys as Mexican boys. They’re not looking at them as just boys.
THE COURT: Is that something you’re saying that happened through the trial or just in the discussions?
20 JUROR AYALA: Just in different things that I’ve seen.
THE COURT: You mean during the course of the trial?
JUROR AYALA: I don’t know how to explain it to you or whether you understand me what I’m trying to say. It’s just a --
THE COURT: I’m trying to.
JUROR AYALA: You know I just --
THE COURT: What I’m trying to find out now is your problem, in part, because of what witnesses said or what happened here during the trial? Is that part of your problem?
JUROR AYALA: No.
THE COURT: Okay. It’s simply what other members of the jury, their reaction --
JUROR AYALA: Correct.
THE COURT: -- to things that have happened. Has anyone made any specific comment to you or to each other where you heard it that would cause you to think that any of them are making a racial remark or racial innuendo or a national origin remark or a national origin innuendo. And it may be difficult for you to say it, but we’ve got to find out what the problem is.
JUROR AYALA: What I would perceive as being offensive to me, you may not perceive it as being offensive, okay? That’s why what I might tell you might sound silly.
THE COURT: Well, it might not. So tell me.
JUROR AYALA: To me it’s, you know, pretty serious, I think.
THE COURT: Is there anyway you can express it in words what you’re talking about that you’ve heard or you’ve seen by way of reaction of the other jurors?
JUROR AYALA: Okay, for instance, today, we all didn’t agree on one subject, and because I was one that didn’t agree on it -- and I wasn’t the only one. When the question was asked, “Well, what is it that you don’t understand about this
21 subject,” it was directed at me. They turned to me. They didn’t turn to the whole people that had questioned it, okay?
THE COURT: Okay.
JUROR AYALA: Like I was singled out. “Why don’t you believe this?”
THE COURT: And I do understand what you’re telling me. Can you give me any other example of what you’re talking about?
THE COURT: Is that particular thing you’re talking about what prompted you to leave the jury room?
JUROR AYALA: Yes, sir.
JUROR AYALA: That’s why I’m telling you about the instance.
THE COURT: That’s what prompted you to leave the jury room?
JUROR AYALA: Right.
THE COURT: Can you give me an example of any other instance?
THE COURT: Okay, you can be seated, and I appreciate your candor.
The district court concluded that nothing had occurred which
would reflect any racial bias or prejudice on the part of any other
juror. When Artiaga’s counsel pointed out that “there were a
couple two or three jurors that were nodding their heads in
agreement with her,” the district court stated:
Well, we can’t get involved with what the head nods are supposed to mean. When I say there is a problem, we have to resolve it. There were several of them nodding their heads, and I did take some understanding of, “now we know
22 why she’s upset, as if they didn’t know before.”
The district court then instructed the jury to continue
deliberating and to base their decision on the evidence, and not to
take into account the race or national origin of any party or any
witness in the case. The district court also instructed the jurors
that Ayala had done the right thing and asked them to inform the
court if any disparaging comments became a problem.
Appellants filed a motion for mistrial at that time and a
motion for new trial after the verdict was returned, arguing that
Ayala’s statements presented a prima facie showing of jury
misconduct. After the trial they also filed a motion pursuant to
Local Rule 8.2(e)4 to interview Ayala. All the motions were
denied.
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury. . . .”
U.S. CONST. amend. VI. All of the appellants contend that they were
denied their Sixth Amendment right to an impartial jury. The
Government does not dispute that open racial bias is unacceptable
during jury deliberations. Rather, it is the Government’s position
that, given the broad discretion afforded trial courts in
addressing alleged jury misconduct, the district court’s response
in this case was sufficient.
There is no Fifth Circuit precedent that prescribes a
4 Northern District of Texas, Local Rule 8.2(e) provides: “Neither a party nor attorney in a case (or a representative of either) shall, before or after trial, contact any juror, except upon explicit leave of the Presiding Judge.”
23 procedure for investigating and resolving allegations of jury
racial bias made during the trial. Case law speaks in terms of
extrinsic influences such as trial publicity, United States v.
Herring, 568 F.2d 1099 (5th Cir. 1978) versus intrinsic influences
such as a juror announcing that he had determined the defendant was
guilty prior to the end of the trial. United States v. Webster,
750 F.2d 307 (5th Cir. 1984), cert. denied, 471 U.S. 1106, 105 S.
Ct. 2340, 85 L. Ed. 2d 855 (1985). This circuit has afforded trial
courts broader discretion in dealing with intrinsic influences due
to jury misconduct than it has afforded in cases of extrinsic
influences and has specifically declined to presume prejudice from
intrinsic influences because it would hamper the judge’s
discretion. Id. at 338.
Appellants attempt to characterize the problem of racial bias
as extrinsic, in order to require the district court to perform the
burden shifting analysis articulated most recently in United States
v. Ruggiero, 56 F.3d 647 (5th Cir.), cert. denied, 116 S. Ct. 486,
133 L. Ed. 2d 413 (1995). In that case a juror obtained
information during the trial about the defendant and one of the
Government witnesses that was not admitted into evidence. The
extrinsic influence analysis begins with an initial presumption of
jury impartiality. Id. at 652. When a colorable showing of
extrinsic influence appears, the trial court must investigate the
asserted impropriety. Id. Such a showing creates a rebuttable
presumption of prejudice to the defendant and the Government has
the burden of proving the harmlessness of the influence. Id.
24 We reject appellant’s characterization of the incident in this
case as an extrinsic influence. We believe that it can more
accurately be described as an intrinsic influence. However,
regardless of the extrinsic/intrinsic classification, the trial
court has broad discretion and the ultimate inquiry is: “Did the
intrusion affect the jury’s deliberations and thereby its verdict?”
United States v. Ramos, 71 F.3d 1150, 1154 (5th Cir. 1995).
Appellants rely on United States v. Heller, 785 F.2d 1524
(11th Cir. 1986) where the Eleventh Circuit held that the trial
court erred in failing to grant a mistrial based on anti-Semitic
comments about the defendant made by jurors to other jurors. The
opinion noted that juror prejudice prevents the impartial decision-
making that the Sixth Amendment and fundamental fair play require.
Id. at 1527. In Heller, the trial judge questioned each juror
individually, apart from counsel for either party, in an attempt to
“get rid of the taint that we have seen here.” Id. at 1526. As a
result of the individual voir dire, it came to light that jurors
had made overt anti-Semitic slurs, had prejudged the defendant’s
guilt and “had all the appearance of a linch [sic] mob.” Id. The
Eleventh Circuit held that the trial court clearly abused his
discretion when he refused to declare a mistrial upon learning of
the misconduct of the jury. Although not controlling precedent, we
agree that Heller contains a helpful discussion of the appropriate
response to racial prejudice exhibited by a juror. However, the
alleged racial tension in this case is distinguishable from Heller
in both kind and degree. Juror Ayala’s testimony identified two
25 circumstances from which she inferred racial prejudice on the part
of other jurors against Hispanics, but no overtly racial remarks or
behavior.
Given his broad discretion to fashion an investigation, the
trial court’s choice of techniques was not so coercive that it
interfered with truth-seeking. This record does not contain
evidence from which we could conclude that the Appellants were
denied their Sixth Amendment rights to an impartial jury. Ayala’s
obvious reluctance to speak in front of her fellow jury members,
and the unexplained head nodding from other jurors are troublesome.
However, the trial court’s choice of investigative techniques that
are less than ideal does not support a holding that the trial court
abused its discretion by failing to adequately investigate the
allegation of racial prejudice among the jury.
Focus in the briefs on Rule 606(b) is misplaced. Rule 606(b)
concerns the competence of juror testimony during “an inquiry into
the validity of a verdict.” Since the problem was brought to the
court’s attention prior to verdict, 606(b) does not impact the
availability of juror testimony in resolving the factual issues
raised. The trial court relied on Tanner v. United States, 483
U.S. 107, 107 S. Ct. 2739, 97 L. Ed. 2d 90 (1987), a Rule 606(b)
case, in denying the Appellants post-trial motion to interview
jurors. While Tanner speaks to post-trial jury inquiries, neither
Tanner nor Rule 606(b) helps resolve the real issue in this case
which was brought to the trial court’s attention pre-verdict.
Because we hold that the trial court did not abuse his
26 discretion in dealing with the jury prejudice issue during trial,
the post trial denial of jury interviews is moot.
ERRONEOUS ADMISSION OF EVIDENCE
Flores contends that the district court abused its discretion
in denying his motion for mistrial after hearsay testimony came
into evidence implicating him in the Arthur Franklin drug buy.
FED. R. EVID. 103(a) precludes grounding a reversal on the erroneous
admission of evidence unless “a substantial right of a party is
affected.” If the defendant’s substantial rights were not
affected, the error is harmless, and this Court will not reverse.
See Fed. R. Crim. P. 52(a). When the evidence has been stricken
and the trial court has instructed the jury to disregard it, there
is less probability that the error substantially influenced the
jury’s decision. United States v. Drew, 894 F.2d 965, 973 (8th
Cir.) cert. denied, 494 U.S. 1089, 110 S. Ct. 1830, 108 L. Ed. 2d
959 (1990).
A police officer who was part of the surveillance outside of
the apartment during the Franklin drug buy testified that two
Hispanic males arrived at the apartment. He testified that he knew
one of the men to be Edward Sotelo and the other one was “later
identified as Lawrence Flores.” The district court sustained
Flores’ objection on the basis of hearsay and instructed the jury
to disregard the officer’s testimony concerning the identity of the
second Hispanic male.
On appeal, Flores does not address how this hearsay testimony
affected his substantial rights. Flores’ identity and role in the
27 Franklin drug buy was established through the testimony of two
other witnesses, whose testimony was not hearsay and to which
Flores did not object. Since the hearsay testimony of the police
officer was cumulative of other evidence admitted without
objection, its admission was harmless. Unites States v. Cavin, 39
F.3d 1299, 1311 (5th Cir. 1994).
Joe Sotelo likewise contends that the district court abused it
discretion by denying his motion for mistrial after a Government
witness gave a non-responsive answer indicating that Joe Sotelo had
been arrested for murder.
A Government witness, on direct examination, commented that
Edward Sotelo had told him “that the police had come and kicked in
his door and taken -- took his brother to jail for murder....” Joe
Sotelo’s objection based on hearsay was sustained, and the district
court gave a limiting instruction that the jury was not to consider
it as evidence against any of the other defendants. Joe Sotelo
requested a mistrial during the next recess after the witness’s
statement. The basis for the motion for mistrial was that the
statement was “so prejudicial I don’t think there is anyway the
jury could disregard that and . . .at bench conference earlier in
this trial [the court] had instructed the Government not to raise
any 404(b) material with regard to [Joe Sotelo] without coming up
to the bench first and getting a ruling on it.” The witness’s
stray comment was the only time the jury heard about Joe Sotelo’s
murder charge. The district court overruled the motion for
mistrial but invited Joe Sotelo, as well as any other appellant, to
28 write out any further instructions they wanted given to the jury
for his consideration.
The Government contends that because Sotelo has not
established that the comment was prejudicial and because the
evidence of Joe Sotelo’s guilt is so overwhelming, any error was
harmless. We agree that the error is harmless in light of the
remaining admissible evidence of Joe Sotelo’s guilt. See United
States v. Limones, 8 F.3d 1004, 1008 (5th Cir. 1993), cert. denied,
114 S. Ct. 1562, 128 L. Ed. 2d 209 (1994).
LIMITATION ON CROSS EXAMINATION OF GOVERNMENT WITNESS
Joe Sotelo contends that the district court abused its
discretion by limiting his cross-examination of Juan Robles
regarding five felony charges pending against him at the time of
trial. The trial court has the discretion to impose reasonable
limits on the extent of cross-examination. United States v. Cooks,
52 F.3d 101, 103 (5th Cir. 1995). However, the trial court’s
discretion is limited by the requirements of the Confrontation
Clause of the Sixth Amendment. Id.
Joe Sotelo argues that the trial court’s limitation on the
cross-examination of Juan Robles concerning five state felony
charges -- two for attempted murder -- pending against him at the
time of trial requires reversal.
Rule 608(b) provides for impeachment on cross-examination with
acts other than convictions if probative of the witness’s
credibility, particularly if the evidence tends to show bias or
motive for the witness to testify untruthfully. United States v.
29 Thorn, 917 F.2d 170, 176 (5th Cir. 1990). In Thorn, this Court
held that the trial court had not abused its discretion in refusing
impeachment with state indictments because the defendant “had
failed to offer any evidence that the Government could influence
the disposition of the state court proceedings. The existence of
a pending state court indictment on charges totally unrelated to
the testimony offered . . . was not shown to give [the witness] a
substantial reason to cooperate with the federal prosecution.”
Thorn, 917 F.2d at 176.
The only evidence concerning this question was in response to
Joe Sotelo’s question to Robles asking if his cooperation with the
Government and his testimony were motivated by a desire to gain
leniency for the charges currently pending against him. Robles
relied, “No.” No other evidence tended to show that Robles thought
that the Government could influence the disposition of the state
court charges or that the Government could in fact exert such
influence. The district court did not abuse its discretion in
limiting the cross-examination of Robles.
CUMULATIVE EFFECT OF ERRORS
Having found no error on the part of the trial court, we find
no merit in Artiaga’s contention that the cumulative effect of
trial errors denied him his Fifth Amendment right to due process of
law.
SENTENCING ISSUES
This Court shall accept the trial court’s findings of fact
during sentencing unless they are clearly erroneous and shall give
30 due deference to the district court’s application of the Sentencing
Guidelines to the facts. See 18 U.S.C. § 3742(e); United States v.
Otero, 868 F.2d 1412, 1414 (5th Cir. 1989). In making findings
pursuant to the Sentencing Guidelines, a district court need only
be convinced by a preponderance of the evidence. United States v.
McKinney, 53 F.3d 664, 677 (5th Cir.), cert. denied, 116 S. Ct. 261
(1995). Credibility determinations in sentencing hearings “are
peculiarly within the province of the trier-of-fact.” United States
v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989).
a. Quintana
Calculation of drug quantity: The Sentencing Guidelines allow the
sentencing court to hold a defendant accountable for all relevant
conduct. United States v. Smallwood, 920 F.2d 1231, 1237 (5th Cir.
1991). A co-conspirator is accountable for his own conduct and for
the foreseeable acts of his co-conspirators committed in
furtherance of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B). The
pre-sentence report, adopted by the district court, found Quintana
accountable for 9,638 kilograms of marijuana equivalency. Quintana
contends that the only drug quantities reasonably foreseeable to
him are the 1 kilogram of cocaine and ten pounds of marijuana
discarded from Edward Sotelo’s vehicle after the failed undercover
Blevins buy. The remaining disputed amounts are the drug
quantities sold to witnesses Bryant and Blevins by Sotelo.
Quintana contends that the evidence does not support a finding that
he knew about these transactions. The Government responds that
Blevins and Bryant testified that Quintana accompanied Sotelo to
31 the purchases, sometimes made drug deliveries by himself and saw
drug payments being made. Based on this testimony, the district
court did not clearly err in finding that those amounts were
foreseeable to Quintana and assigning him a Base Level Offense 34
(3000-10,000 kilograms of marijuana equivalent).
Minimal participation reduction: A defendant may receive a 2-level
reduction in total offense level if his role in the offense was
minor, and a 4-level reduction if his role was minimal. See
U.S.S.G. § 3B1.2. Quintana was awarded the 2-level reduction but
contends that the district court erred in not granting him a 4-
level reduction for minimal participation. The Application Notes
to § 3B1.2 provides that the nominal participant status
is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant’s lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant. . . . It would be appropriate, for example, for someone who played no other role in a very large drug smuggling operation than to off-load part of a single marihuana shipment, or in a case where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.
See U.S.S.G. § 3B1.2, comment. (n.1 & 2). Evidence of Quintana’s
long-term involvement and participation in more than twenty
deliveries supports the district court’s rejection of minimal
participation.
b. Artiaga
Calculation of drug quantity: Artiaga’s Pre-sentence Report stated
that based on the testimony of Bryant, Henton, Edwards, Hall and
32 Reed, Artiaga was accountable for 186 kilograms of cocaine. Like
Quintana, Artiaga contends that he was not directly involved in the
sale of 186 kilograms of cocaine nor was it foreseeable. At
sentencing, Artiaga agreed that he had distributed 130 - 140
kilograms of cocaine. It was not clear error to attribute the
other 46-56 kilograms to Artiaga based on the evidence of a lengthy
and close drug-related relationship with Edward Sotelo.
c. Flores
Flores contends that the district court erred in raising his
offense level 2 levels for the drug-related kidnapping of Gilberto
Robles, because the kidnapping was not reasonably foreseeable to or
jointly undertaken by Flores. Flores does not deny that he was
present during the kidnapping, but claims that Gilberto testified
that Flores was not armed, that Flores attempted to help him, that
he was as much a prisoner as Gilberto and was threatened by the
Sotelos for trying to help Gilberto.
The Government replies that because Flores was actually
involved in the kidnapping, foreseeability was not an issue. The
only issue is whether the court’s factual finding is plausible in
light of the record as a whole. Given Flores’ undisputed
involvement in the underlying drug deal and in the kidnapping, the
district court’s finding is plausible. Further, the district court
sentenced Flores at the bottom of the guideline range, specifically
noting that he was taking into account Flores’ undefined assistance
to Gilberto during the kidnapping in determining the sentence.
CONCLUSION
33 Based on the foregoing, we AFFIRM the convictions and
sentences of all Appellants.
AFFIRMED.