United States v. Quiroz , 137 F. App'x 667 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2005
______________________
Charles R. Fulbruge III
No. 03 - 50120 Clerk
______________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ARMANDO GARCIA QUIROZ, also known as Mando; LUCIANO CHAPA;
FRANCISCO RIOS BALDERRAMA, also known as Kiko,
Defendants - Appellants.
_______________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS
MO-00-CR-141-2
______________________
Before Davis, Stewart, and Dennis, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
Defendants-Appellants Armando Garcia Quiroz (Quiroz),
Francisco Rios Balderrama (Balderrama), and Luciano Chapa (Chapa)
appeal their convictions for Continuing Criminal Enterprise and
drug trafficking. For the reasons stated below, we affirm all
three convictions.
I.
In September of 2001, the government indicted 29 individuals
in connection with the illegal activities of a criminal
organization known as “Los Tres de la Sierra”, i.e. “The Three
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
from the Mountains”. The government charged that this
organization imported large quantities of marijuana from Mexico
and distributed it in the United States. Among those indicted
were Balderrama and Quiroz, two of the three leaders of the
organization and Chapa, one of the organization’s smugglers. The
indictment detailed several overt acts committed in the
furtherance of the continuing criminal enterprise, including: (1)
various instances of drug smuggling, and (2) the murders of
Israel Pena Ocon (Ocon) and Rigoberto Loera-Carillo (Loera),
allegedly ordered by Balderrama as punishment for stealing drugs
and profits from the organization.
Balderrama and Quiroz were extradited from Australia,
pursuant to the Australia - U.S. Extradition Treaty in May of
2002.
Defendants’ four week trial ended in September of 2002 and
resulted in guilty verdicts against Balderrama and Quiroz on the
following counts: one count of engaging in a continuing criminal
enterprise, in violation of 21 U.S.C. § 848 and § 846 (Count 1);
one count of conspiring to possess with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 846 (Count
2); one count of conspiring to import marijuana from Mexico to
the United States, in violation of 21 U.S.C. § 952(a), § 960, and
§ 963 (Count 3); eight counts of possession with the intent to
distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Counts 5, 6, 7, 10, 12, 13, 14, & 17); one count of
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conspiring to commit money laundering, in violation of 18 U.S.C.
§ 1956 (h) and 21 U.S.C. § 846 (Count 19); and four counts of
money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(I)
and (2) (Counts 21, 22, 23, & 24). The jury found Chapa guilty of
one count of conspiring to possess with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 846 (Count
2); and one count of conspiring to import marijuana from Mexico
to the United States, in violation of 21 U.S.C. § 952(a), § 960,
and § 963 (Count 3).
On January 23, 2003, the district court sentenced Balderrama
and Quiroz to mandatory life terms for Count 1, life imprisonment
on Count 3, 480 months on Counts 5, 6, 7, 10, 12, 13, 14, and 17,
and 240 months on Counts 19, 21, 22, 23, 24, all to run
concurrently. Chapa was sentenced to 120 months on Counts 2 and
3, to run concurrently.
Defendants raise a number of issues on appeal, which we
discuss below.
II.
During trial, Defendants objected to the jury venire as
violating the 6th Amendment to the Constitution and the Jury
Selection and Service Act of 1968, 28 U.S.C. § 1861, in its
failure to represent a fair cross-section of the community. They
argue that, because the jury venire is drawn from voter
registration lists and Hispanic voters register in substantially
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lower numbers than non-Hispanics in the Midland area, the number
of Hispanics in the jury venire is not a fair representation of
the number of jury-eligible Hispanics in the community. The
district court found that Defendants failed to make a prima facie
showing that the jury selection process violated the fair cross-
section requirement.
In order to establish a prima facie case of violation of the
fair cross-section requirement, a defendant must demonstrate the
following:
(1) that the group alleged to be excluded is a
“distinctive” group in the community;
(2) that 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) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.
U.S. v. Olaniyi-Oke, 199 F.3d 767, 773 (5th Cir. 1999), citing
U.S. v. Alix, 86 F.3d 429, 434 (5th Cir. 1996). The parties’
debate concerns the second prong of this test, i.e. whether the
representation of Hispanics in the federal jury pool is “fair and
reasonable” in relation to the population of jury eligible
Hispanics in the Midland community.
Both parties accept the district court’s finding that an
11.22% disparity exists between the number of Hispanics in the
federal jury pool and the number eligible for jury duty in the
Midland area.
Given the disparity of 11.22%, we agree with the district
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court that Defendants failed to prove their prima facie case of a
6th Amendment fair cross-section violation because they are
unable to demonstrate that the disparity is more statistically
significant than the 11% disparity which this Court found
insufficient to sustain a claim of racial discrimination in
Thompson v. Sheppard, 490 F.2d 830 (5th Cir. 1974). Appellants
attempt to distinguish Thompson by arguing that it is a civil
rights case involving claims of subjective intentional racial
discrimination. We, however, reject this description of Thompson
and, consequently, this distinction. In Thompson, black citizens
of Dougherty County, Georgia brought a § 1983 action to enforce
their right to serve on grand and petit juries in the courts of
that county. The Court distinguished Thompson from previous cases
where officials selected potential jurors non-randomly and
without objective criteria. In Thompson, the disparity resulted
despite the use of objective criteria and random selection.
Thompson, 490 F.2d at 832 - 33. The jury pool in Thompson was
“compiled by a computer process which automatically selected
every fourth name on the voter list”. Id. at 831. The jury
selection process in the Midland division is similarly random, as
described by the district court in its February 3, 2003 Order.
In holding that the jury system in Thompson was not
discriminatory, the Court stated:
We conclude that a jury list drawn objectively,
mechanically, and at random from the entire voting list of a
county is entitled to the presumption that it is drawn from
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a source which is a fairly representative cross-section of
the inhabitants of that jurisdiction.
Id. at 833. In Thompson the discrepancy between the number of
African Americans in the community and those in the jury wheel
was 11%. Because we decline to find that a disparity of 11.22% is
significant where one of 11% is not, we affirm the district
court’s conclusion that Appellants failed to make a prima facie
showing that the jury venire violated the fair cross-section
requirement of the Sixth Amendment and the Jury Service and
Selection Act.
III.
Appellant Balderrama argues that (1) the indictment was
insufficient and constructively amended by the district court to
charge Defendants for the murders of Loera and Ocon, and (2) that
charging Defendants with those murders violates the Specialty
Doctrine and the terms of the extradition from Australia.
The record and trial transcript belie Balderrama’s argument
and reflect that Defendants were never charged with these murders
nor did the jury impermissibly punish Defendants for these
murders.1 Indeed, the district court specifically instructed the
1
While the fact that Defendants were never charged with
murder is sufficient to answer all of these arguments, it is also
relevant to note that Defendants have no standing to assert their
Specialty Doctrine Argument. This Court’s decision in U.S. v.
Kaufman, 874 F.2d 242, 243 (5th Cir. 1989), precludes a criminal
defendant from arguing the Specialty Doctrine when the asylum
state, here Australia, has failed to raise an objection to the
proceeding. Australia never objected to the trial or sentencing,
thus Balderrama’s Specialty Doctrine argument must fail.
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jury that Defendants were not charged with murder.2
IV.
We are unpersuaded by Appellants Balderrama and Quiroz’s
argument that the district court erred in admitting extrinsic
evidence of the murders (and additionally, the kidnapping of
Sabino Gardea) during trial. Under this Circuit’s decision in
U.S. v. Abrego, 141 F.3d 142, 174 (5th Cir. 1998), evidence of
murders in furtherance of a continuing criminal enterprise is
intrinsic, rather than extrinsic, evidence because the murders,
as overt acts, “are themselves part of the act charged”. U.S. v.
2
In explaining the prosecution’s burden, the district court
told the jury the following:
...They’ve got to prove their case beyond a reasonable
doubt. They’ve alleged conspiracies here. They’ve alleged
that thee killings had something to do with the
conspiracies.
In the end, you have to decide whether the Government
is going to prove these conspiracies beyond a reasonable
doubt. If the Government doesn’t prove it, then the
Defendants must be acquitted. If the Government does prove
it, then the Defendants must be found guilty. But you decide
if they prove it. Nobody else... We’re not here to decide -
- We’re not trying a murder case. There is no murder count
in this indictment. We’re not trying a murder case. We’re
trying a conspiracy case... The Government must prove a
conspiracy here. They say these killings had something to do
with the conspiracy. You will decide if that’s the case or
not. But there is no murder count in this indictment and
those matters would have been reserved for the state and the
state has not brought an indictment in that regard.
Emphasis added, Record, Vol 26 at 1242 - 1243.
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Miller, 116 F.3d 641, 682 (2nd Cir. 1997). The government
presented evidence that Balderrama ordered these murders in
retaliation for marijuana being stolen from the Los Tres de la
Sierra organization. The district court, therefore, did not abuse
its discretion in admitting the evidence of the murders and
kidnapping.
V.
The record does not support Balderrama’s next argument that
the district court failed to give a limiting instruction
concerning the appropriate treatment of co-defendants’ guilty
pleas. The district judge charged the jury as follows:
Accomplice - Co-Defendant - Plea Agreement: In this
case, the government has called as witnesses alleged
accomplices, some of whom are named as co-defendants in the
indictment, with whom the government has entered into plea
agreements providing for the dismissal of some charges and
possible lesser sentences than the co-defendants would
otherwise be exposed to for the offenses to which the co-
defendants plead guilty. Such plea bargaining, as it is
called, has been approved as lawful and proper, and is
expressly provided for in the rules of this court.
An alleged accomplice, including one who has entered
into a plea agreement with the government, is not prohibited
from testifying. On the contrary, the testimony of such a
witness may alone be of sufficient weight to sustain a
verdict of guilty. You should keep in mind, however, that
such testimony is always to be received with caution and
weighted with great care. You should never convict a
defendant upon the unsupported testimony of an alleged
accomplice unless you believe that testimony beyond a
reasonable doubt. The fact that an accomplice has entered a
plea of guilty to the offense charged is not evidence of
guilt of any other person.
5 R. 001096 - 97. Balderrama provides no reason, nor are we able
to conceive of one, as to why this limiting instruction does not
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objectively inform the jury what weight it should give to co-
defendants’ guilty pleas.
VI.
Balderrama argues next that the district court’s failure to
provide him with an interpreter to aid him in understanding the
proceedings and assisting his lawyer in his defense rendered the
trial fundamentally unfair.
The record demonstrates that, in addition to a lawyer who
spoke some degree of Spanish, an interpreter was assigned to sit
between, and assist, Balderrama and Quiroz during the trial.
While Balderrama argues that having to share an interpreter with
Quiroz inhibited the openness of his communication with his
attorney, given the nature of the joint defense Defendants
coordinated, the district court provided Balderrama with a
sufficient interpreter under the Court Interpreter’s Act, 28
U.S.C. § 1827(d)(1) and this Court’s holding in U.S. v. Tapia,
631 F.2d 1207 (5th Cir. 1980). Also, Balderrama’s claim fails for
the additional reason that he demonstrates no prejudice which
resulted from the lack of an interpreter assigned solely to him.
VII.
Additionally, Balderrama and Quiroz raise the following
arguments: the government committed prosecutorial misconduct when
it moved to consolidate indictments MO-00-CR-141 and MO-010-CR-
128; the district court erred in not holding a hearing on
Defendants’ motion for a new trial based on the newly discovered
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evidence that a government witness, Rosie Soles, perjured herself
during the trial; the district court committed error in admitting
hearsay statements not in furtherance of the conspiracy
(specifically a song that Arturo Sanchez wrote for Balderrama and
Quiroz about the marijuana operation); and that the district
court erred in granting the government’s motion in limine to
prevent counsel from asking any witness if other witnesses were
lying.
After a careful review of the record and the briefs, we are
satisfied that none of these arguments have merit.
VIII.
Chapa argues that the district court erred when it held that
he was barred from relitigating his motion to suppress evidence
the government obtained following a traffic stop of his vehicle
and seizure of drugs. The district court ruled that the denial of
the identical motion in a previous trial collaterally estopped
Chapa from retrying this issue. The only new evidence Chapa
sought to provide was information regarding traffic patterns
which, Chapa argues, would undermine the credibility of the
Border Patrol agent’s testimony. We are unpersuaded that such
evidence could affect the Court’s finding that the Border Patrol
had reasonable suspicion to stop and search Chapa’s vehicle and
to detain Chapa. Because Chapa is unable to demonstrate that the
result would have likely been different had he been permitted to
retry his motion, we must reject this argument.
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IX.
For these reasons, and the reasons stated in the district
court’s November 9, 2004 “Order Denying Defendant’s Motion to
Reconsider Previous Denial of Defendant’s Motion to Reconsider”,
2004 U.S. Dist. LEXIS 22712, No. MO-00-CR-141 (W.D. Tx. November
9, 2004), we affirm the convictions of Appellants Balderrama,
Quiroz, and Chapa.
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