United States v. Horacio Yepiz , 685 F.3d 840 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 09-50574
v. D.C. No.
HORACIO YEPIZ, AKA Little Horse,  2:05-cr-00578-
AKA Alberto Rodriguez, AKA JFW-3
Seal C, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
November 16, 2011—Pasadena, California
Filed July 2, 2012
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Rawlinson
*The Honorable Richard Mills, Senior U.S. District Judge for the Cen-
tral District of Illinois, sitting by designation.
7777
UNITED STATES v. YEPIZ 7779
COUNSEL
Benjamin L. Coleman, Coleman & Balogh LLP, San Diego,
California for appellant Horacio Yepiz.
Nili T. Moghaddam, Assistant United States Attorney, Los
Angeles, California, for appellee United States.
7780 UNITED STATES v. YEPIZ
OPINION
RAWLINSON, Circuit Judge:
One of the most valuable weapons in the arsenal of the trial
attorney is the peremptory challenge. In a criminal trial, avail-
ability of this weapon is ensured pursuant to Rule 24 of the
Federal Rules of Criminal Procedure. Specifically, Rule 24
provides that in a non-capital felony case, the prosecution is
allowed six peremptory challenges and the defense is allowed
ten peremptory challenges.1
Appellant Horacio Yepiz (Yepiz) was tried and convicted
of racketeering and violence in aid of a racketeering enter-
prise. Although Yepiz was entitled to exercise ten peremptory
challenges, he was unable to do so because of a “use it or lose
it” voir dire practice followed by the district court. This prac-
tice impermissibly deprived Yepiz of two of the peremptory
challenges to which he was entitled. See United States v. Tur-
ner, 558 F.2d 535, 538 (9th Cir. 1977) (explaining that the
defense cannot be forced to lose a peremptory challenge each
time it accepts a jury panel as then constituted). We affirm the
convictions, however, under a plain error standard of review.
The error by the district court, although plain, and affecting
Yepiz’s substantial rights, did not “seriously affect[ ] the fair-
ness, integrity, or public reputation” of the voir dire proceed-
ings. United States v. Lindsey, 634 F.3d 541, 550-51 (9th Cir.
1
The text of Fed. R. Crim. P. 24(b) reads in pertinent part:
Peremptory Challenges. Each side is entitled to the number of
peremptory challenges to prospective jurors specified below.
...
(1) Capital Case. Each side has 20 peremptory challenges when
the government seeks the death penalty.
(2) Other Felony Case. The government has 6 peremptory chal-
lenges and the defendant or defendants jointly have 10 peremp-
tory challenges when the defendant is charged with a crime
punishable by imprisonment of more than one year.
UNITED STATES v. YEPIZ 7781
2011) (applying plain error review to similar facts and clarify-
ing that relief should be granted only if the plain error seri-
ously affected the judicial proceedings).2
I. BACKGROUND
A. Indictment
A second superseding indictment alleged that Yepiz was a
member of the Vineland Boys Gang (VBS), “one of the most
violent street gangs in the San Fernando Valley. . . .” “The
VBS Gang control[led] drug distribution and other illegal
activities within the Sun Valley area of Los Angeles. . . .” The
VBS “partnered with various Mexican national drug traffick-
ing organizations in the VBS area. In return for a steady sup-
ply of low-priced narcotics, the VBS allow[ed] these Mexican
national organizations to operate within VBS territory and
provide[d] these organizations with protection from other
drug traffickers and gang members. . . .”
Count One alleged that Yepiz and other members of the
VBS participated in a pattern of racketeering activity in viola-
tion of 18 U.S.C. § 1962(c). The indictment alleged that,
“[b]eginning on a date unknown to the Grand Jury and contin-
uing to on or about November 30, 2005,” Yepiz conspired
“[t]o distribute at least five kilograms . . . of cocaine. . .”
According to the indictment, “[o]n or about October 13,
1992,” Yepiz also “knowingly and intentionally possessed
with intent to distribute approximately 50 grams of . . .
cocaine . . .” and “[o]n or before July 27, 1999,” Yepiz
“knowingly and intentionally possessed with intent to distrib-
ute more than 500 grams . . . of cocaine . . .” Additionally,
“[o]n or about August 12, 2003,” Yepiz participated in the
murder of Eugenio Cruz.
2
Yepiz raised other issues, which are addressed in a memorandum dis-
position filed contemporaneously with this opinion.
7782 UNITED STATES v. YEPIZ
Count Two alleged that Yepiz, as a member of the VBS,
engaged in drug trafficking and racketeering conspiracies in
violation of 18 U.S.C. § 1962. According to the indictment,
Yepiz and his co-conspirators “direct[d] other VBS members
in their drug trafficking and racketeering activities,” “ac-
quire[d] large quantities of cocaine, methamphetamine, and
marijuana from Mexican national drug trafficking organiza-
tions on behalf of the VBS,” and “distribute[d] large quanti-
ties of cocaine, methamphetamine, and marijuana on behalf of
the VBS.”
Count Two also alleged that Yepiz and a co-conspirator
traveled to Kentucky to distribute cocaine, and, “[o]n July 28,
1999, while in Kentucky,” Yepiz “possessed approximately
three kilograms of cocaine.” Additionally, “[o]n July 31,
1999, while in Kentucky, [Yepiz] . . . possessed approxi-
mately two kilograms of cocaine and approximately $17,500
in proceeds from the sale of cocaine.”
According to Count Two, Yepiz “contacted a member of
the Mexican Mafia at Pelican Bay State Prison and requested
permission to kill [Eugenio Cruz] and take over the VBS
gang.” “Prior to June 2003, [Yepiz] told unindicted co-
conspirators that he had permission from a member of the
Mexican Mafia to kill [Eugenio Cruz].” In approximately
June 2003, [Yepiz] met with representatives of the Mexican
Mafia in order to discuss [Yepiz’s] attempts to take over VBS
and his threats to kill [Eugenio Cruz].” “On August 12, 2003
. . . [Yepiz] shot [Eugenio Cruz] in the head twice.”
Count Three alleged that Yepiz and his co-conspirators
conspired to distribute cocaine, cocaine base, methamphet-
amine, and marijuana in violation of 21 U.S.C. §§ 841 & 846.
According to Count Three, Yepiz met with members of the
Mexican Mafia regarding the gang’s drug trafficking, and
Yepiz traveled to Kentucky with a co-conspirator to distribute
cocaine.
UNITED STATES v. YEPIZ 7783
Count Five alleged that Yepiz committed a violent crime in
aid of racketeering in violation of 18 U.S.C. § 1959 by partici-
pating in Eugenio Cruz’s murder so as to enhance Yepiz’s
position in the VBS gang.
Count Twenty-Four alleged that Yepiz “used and carried a
firearm, during and in relation to a crime of violence, namely
Violent Crime in Aid of Racketeering . . . as alleged in Count
Five . . .”3
B. Voir Dire Proceedings
For voir dire, the government had six peremptory chal-
lenges and the defense had ten, as provided in Rule 24 of the
Federal Rules of Criminal Procedure. Prior to the beginning
of the jury voir dire, the district court instructed the parties
that it utilized “a use or lose it policy on passing or accepting
the jury.” Under this practice, acceptance of a jury panel as
constituted at any point during the voir dire proceedings
would be counted as the use of a peremptory challenge.
The defense exercised eight peremptory challenges, and
accepted two jury panels as then constituted. Under the dis-
trict court’s “use it or lose it” practice, the defense “waived”
two peremptory challenges based on acceptance of the two
jury panels as then constituted. As a result, the defense could
not exercise a peremptory challenge for any prospective juror
who was seated after the actual exercise of his eighth peremp-
tory challenge. This “use it or lose it” jury selection practice
deprived Yepiz of two peremptory challenges to which he
was otherwise entitled under Fed. R. Crim. P. 24.
After the government exercised its final peremptory chal-
lenge, a prospective juror was called who stated that she had
a law degree but had not practiced law. The prospective juror
3
The remaining counts of the indictment contained no allegations con-
cerning Yepiz.
7784 UNITED STATES v. YEPIZ
had worked for ten years with her husband, an attorney, in his
estate planning business. She also assisted her husband in his
personal injury, business litigation, and criminal defense prac-
tice. According to the prospective juror, she attended law
school from 1994 to 1997, and interned at the District Attor-
ney’s Office for six months. The prospective juror informed
the court that, during her internship, she worked on juvenile
cases, but was not personally involved in any cases dealing
with gang members. She stated that her work at the District
Attorney’s office and in her husband’s legal practice would
not affect her impartiality and that she could follow the dis-
trict court’s instructions. At this point in the jury selection
process, the defense had used its eighth and final peremptory
challenge under the court’s “use it or lose it” policy. Because
there were no remaining peremptory challenges under the
court’s “use it or lose it” voir dire policy, and because the par-
ties did not challenge the juror for cause, she was seated as
the final member of the jury.
C. Trial Testimony and Verdict
Victor Bugarian (Bugarian) testified that he was arrested in
2004 for selling methamphetamine and had agreed to cooper-
ate with law enforcement. Bugarian controlled the drug trade
in part of the San Fernando Valley from approximately 2000
to 2003, on behalf of the Mexican Mafia, a prison gang.
Bugarian worked under the supervision of Mexican Mafia
member Ricky Cruz.
Bugarian related that the VBS was subject to a “green-
light,” which meant the gang was targeted for physical vio-
lence from other gangs, because it did not cooperate with the
Mexican Mafia. However, Bugarian reached an agreement
with the VBS leader, Eugenio Cruz, for the VBS to pay
$2,000 a month and purchase their narcotics from the Mexi-
can Mafia.
Bugarian testified that he met with Yepiz in 2003 about a
letter from Ricky Cruz giving Yepiz permission to kill
UNITED STATES v. YEPIZ 7785
Eugenio Cruz. During a meeting at Eugenio Cruz’s home,
Bugarian destroyed the letter, and it was agreed that Yepiz
would no longer write letters to the Pelican Bay state prison.
According to Bugarian, Eugenio Cruz was murdered a couple
weeks after the meeting.
Gustavo Rodriguez (Rodriguez) testified that on the day
Eugenio Cruz was killed, he agreed to give Yepiz a ride in
Rodriguez’s vehicle after leaving a gas station with Eugenio
Cruz. According to Rodriguez, Eugenio Cruz sat in the front
passenger seat. When Yepiz entered the vehicle, he took the
rear passenger seat. Shortly afterwards, Rodriguez “heard two
shots ring out,” and saw Yepiz exit the vehicle while it was
still moving. Yepiz entered his own vehicle, which was
parked nearby, and drove away. Noticing that Eugenio Cruz’s
head was bleeding, Rodriguez pushed Eugenio Cruz’s body
from the car and “race[d] out of the area.”
Rodriguez immediately called Yepiz’s brother, Ralph, who
“told [Rodriguez] just to be quiet and go to [Ralph’s and
Yepiz’s] brother’s house — Manuel’s house.” At Manuel’s
house, Rodriguez cleaned the blood from his car and drove it
to a place to hide it. Rodriguez eventually dismantled his car
because “there was . . . blood splattered all over the place.”
Prior to Eugenio Cruz’s death, Rodriguez attended a meet-
ing with Yepiz and “a representative for a member of the
Mexican Mafia” to discuss letters that Yepiz had written to a
member of the Mexican Mafia about Eugenio Cruz. Accord-
ing to Rodriguez, Yepiz “was instructed to leave the matter
alone.”
On cross-examination, Rodriguez confirmed that, after he
was arrested, he told the police that he did not know anything
about Eugenio Cruz’s death, and that he “had no idea what
happened to [Eugenio Cruz].”
Anthony Ascencio (Ascencio) testified that he was a mem-
ber of the VBS, and that Yepiz sold drugs for the gang during
7786 UNITED STATES v. YEPIZ
the time that Eugenio Cruz was the VBS’ leader. Ascencio
related that he purchased drugs from Yepiz in the early 1990s.
According to Ascencio, the gang was concerned about the
conflict between Yepiz and Eugenio Cruz, and a meeting was
held to discuss letters that Yepiz was sending to the Mexican
Mafia. Ascencio related that the conflict between Eugenio
Cruz and Yepiz concerned Eugenio Cruz’s leadership of the
gang.
Ascencio also testified that Rodriguez told Ascencio “about
a week after [Eugenio Cruz] was killed” that Rodriguez was
present at Eugenio Cruz’s murder. According to Ascencio,
Rodriguez stated that Yepiz had murdered Eugenio Cruz.
Detective David Torres of the Los Angeles Police Depart-
ment testified that he investigated the VBS in 2004, and
seized forty-eight kilograms of cocaine, fifty pounds of
methamphetamine, and three hundred pounds of marijuana.
During the investigation, Detective Torres identified Yepiz
as using the nickname “Horse.” Detective Torres testified that
a wiretap revealed Yepiz was requested to assist with a prob-
lem the gang was having in Mexico. Detective Torres also
testified that, in an October 25, 2004, phone call, Espiridion
Aranda and Gustavo Aranda referred to “Horse” or “Big
Body” as being involved in a drug transaction.
Detective Timothy McConnell of the Louisville, Kentucky,
Police Department testified that, on July 31, 1999, he
responded to a call concerning a suspicious bag located in a
room at a Super 8 Motel. Detective McConnell “opened the
bag up and saw a white powder substance, along with a lot of
currency.” According to Detective McConnell, the hotel clerk
informed him that the room was registered to “Espinoza”
Aranda.
After detaining Espinoza Aranda, Detective McConnell
searched him and found a piece of paper with a Red Roof Inn
UNITED STATES v. YEPIZ 7787
room number “that was just up the street from the Super 8
Motel.” Detective McConnell went to the Red Roof Inn room,
and Yepiz opened the door. According to Detective McCon-
nell, Yepiz produced an I.D. with the name “Rodriguez” on
it. During a search of the room, Detective McConnell found
two airline tickets for Rodriguez and Espinoza Aranda, as
well as a strap that seemed to match the bag found in the
Super 8 Motel room. Detective McConnell also discovered on
the night stand a wallet apparently belonging to Yepiz. The
wallet contained a key to the Super 8 Motel room in which the
bag was found.
Mireya Cruz (Mrs. Cruz), Eugenio Cruz’s mother, testified
that, after her son’s death, “[t]he one that was driving” told
her that Yepiz murdered her son.4 According to Mrs. Cruz,
Rodriguez asked for her forgiveness, and mentioned that he
did not go to the police because he was afraid of “[Yepiz] and
his siblings.” Mrs. Cruz asked Rodriguez if he would sell her
the car because the detectives were asking for evidence. How-
ever, Rodriguez told her that he no longer had the car.
The jury acquitted Yepiz of conspiracy to manufacture
cocaine base, but found Yepiz guilty on all of the other
counts. The district court sentenced Yepiz to life in prison,
and Yepiz filed a timely appeal.
II. STANDARD OF REVIEW
Because Yepiz failed to object to the district court’s denial
of his peremptory challenges, we review for plain error. See
Lindsey, 634 F.3d at 550. Plain error is error that is plain and
that affects the defendant’s substantial rights. See id. at 551.
4
In her testimony, Mrs. Cruz did not specifically identify Rodriguez as
the person who told her that Yepiz murdered her son. However, Rodriguez
testified that he told Mrs. Cruz he had not murdered her son. Because the
parties do not dispute that Mrs. Cruz was referring to Rodriguez, we uti-
lize Rodriguez’s name.
7788 UNITED STATES v. YEPIZ
“If these factors are met, relief should be granted only if the
error seriously affected the fairness, integrity or public reputa-
tion of judicial proceedings. . . .” Id. (citation omitted).
III. DISCUSSION
We consider whether the district court plainly erred by
employing its “use it or lose it” voir dire policy practice and
determining that Yepiz’s acceptance of two jury panels as
then constituted resulted in a waiver of two peremptory chal-
lenges. According to Yepiz, this involuntary waiver of his
peremptory challenges forced him to accept a biased replace-
ment juror.
[1] In Turner, we considered this exact issue — whether
the district court committed reversible error “by treating
defense counsel’s acceptance of a jury panel as then consti-
tuted as a waiver of a peremptory challenge. . . .” Turner, 558
F.2d at 536. Due to the district court’s adherence to the same
“use it or lose it” practice at issue in this case, Turner was not
permitted to exercise the allotted peremptory challenges he
shared with his co-defendants. See id. at 537 (“The district
court refused to permit Turner to challenge [the juror] on the
ground that he had used all of his peremptories by thrice
accepting the jury panel as then constituted.”). We explained
that “[t]he [voir dire] method chosen by the district court must
not unduly restrict the defendant’s use of his challenges . . .”
Id. at 538 (citations omitted). We then noted that the “forced
waiver” feature of the “use it or lose it” voir dire practice is
“an undue restriction on the exercise of peremptory chal-
lenges. . . .” Id. We rejected the notion that acceptance of a
panel as constituted amounted to the “waiver of a peremptory
challenge in respect of a person who was not a member of the
panel at the time the jury was accepted.” Id. (footnote refer-
ence omitted). Rather, we opined that once the composition of
the panel changes from that previously accepted, “the defen-
dant may exercise any of his unexpended peremptories to
excuse the new prospective juror or jurors. . . .” Id.UNITED STATES v. YEPIZ 7789
[2] Our conclusion in Turner is entirely faithful to the
plain language of Rule 24 of the Federal Rules of Criminal
Procedure. Rule 24 provides that “[e]ach side is entitled to the
[specified] number of peremptory challenges . . .” Fed. R.
Crim. P. 24 (emphasis added). See Brown v. Dixon, 891 F.2d
490, 497 n.14 (4th Cir. 1989) (“The peremptory challenge is
one means of assuring the selection of a qualified and unbi-
ased jury. The challenge has deep historical roots, and the
Court has noted the long and widely held belief that peremp-
tory challenge is a necessary part of trial by jury.”) (citation
and internal quotation marks omitted).
[3] In this case, as in Turner, the defense was entitled to
ten peremptory challenges, no more, no less. Yet, the district
court’s “use it or lose it” practice deprived the defendant of
the full complement of challenges to which he was entitled
under Fed. R. Crim. P. 24. As in Turner, equating acceptance
of the jury panel at any point in the voir dire process with
waiver of a peremptory challenge “unduly restricts” the
defendant’s use of the peremptory challenges to which he is
otherwise entitled. Turner, 558 F.2d at 538; see also Pointer
v. United States, 151 U.S. 396, 408 (1894) (declaring that
“[a]ny system for the impaneling of a jury that prevents or
embarrasses the full, unrestricted exercise by the accused of
[peremptory challenges] must be condemned.”) (emphasis
added).
In United States v. Pimentel, 654 F.2d 538, 541 (9th Cir.
1981), we described as dicta the observation in Turner that “a
defendant’s pass of a peremptory challenge cannot be deemed
a waiver of challenges to jurors who have not yet been placed
on the panel.” (citation omitted). Nevertheless, the facts in
Pimentel did not require resolution of the issue because the
defendant in Pimentel “had the opportunity to exercise a
peremptory challenge to each juror selected after government
strikes. . . .” Id. (footnote reference omitted).
[4] Dicta or not, our conclusion in Turner correctly applied
the provisions of Fed. R. Crim. P. 24. We adopt the analysis
7790 UNITED STATES v. YEPIZ
of Turner and hold that, under the plain language of Rule 24,
Yepiz was entitled to exercise ten peremptory challenges. The
district court plainly erred in equating Yepiz’s acceptance of
a jury panel with the waiver of a peremptory challenge to a
prospective juror “who was not a member of the panel at the
time the jury was accepted.” Turner, 558 F.2d at 538 (foot-
note reference omitted). The “use it or lose it” practice
deprived Yepiz of his right to contest any prospective jurors
seated after the forced waiver of his final peremptory chal-
lenge. This deprivation was inconsistent with the express and
explicit provisions of Rule 24. See id.[5] Turner held that automatic reversal was required for an
error restricting the use of peremptory challenges, but we
have since clarified that the “erroneous denial of a peremptory
challenge is not a per se reversible error. . . .” Lindsey, 634
F.3d at 550; see also id. at 551 (applying plain error review
to a peremptory challenge denial). The district court’s error in
this case was obvious because it was contrary to the plain lan-
guage of Rule 24. The error affected Yepiz’s substantial rights
because it deprived Yepiz of peremptory challenges to which
he was otherwise entitled. However, under plain error review,
we conclude that the district court’s error did not “seriously
affect[ ] the fairness, integrity, or public reputation of judicial
proceedings. . . .” Lindsey, 634 F.3d at 551 (citation omitted).
Although Yepiz maintains that the seated juror was biased
because of her internship at the District Attorney’s office, the
record does not support Yepiz’s assertion. Notably, Yepiz
never expressed any concerns regarding the replacement
juror’s potential bias. “[W]here as here, no motion was made
during jury selection to dismiss the juror in question for
cause, [Yepiz] . . . must show that the evidence of partiality
before the district court was so indicative of impermissible
juror bias that the court was obliged to strike [the juror] from
the jury, even though neither counsel made the request. . . .”
United States v. Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009)
(citations omitted). “Actual bias is found where a prospective
juror states that he can not be impartial, or expresses a view
UNITED STATES v. YEPIZ 7791
adverse to one party’s position and responds equivocally as to
whether he could be fair and impartial despite that view.” Id.(citation and internal quotation marks omitted). We have
“presumed a challenged juror’s bias where the relationship
between a prospective juror and some aspect of the litigation
is such that it is highly unlikely that the average person could
remain impartial in his deliberations under the circumstances.
We have cautioned, however, that bias should be presumed
only in extreme or extraordinary cases. . . .” Id. (citations and
internal quotation marks omitted).
[6] In this case, the juror acknowledged that she had
interned for the District Attorney’s office while in law school,
and that she had worked with her husband in his criminal
defense practice. During her internship, she worked on juve-
nile cases, but was not personally involved in cases involving
gang members. The juror stated that her prior experience in
the District Attorney’s office and with her husband’s practice
would not affect her impartiality and that she would be able
to follow the district court’s instructions. As a result, the
record does not reflect actual or implied juror bias on the part
of the juror. See id. at 1154. The lack of evidence of juror bias
leads us to conclude that the judicial proceedings were not
seriously affected, thereby precluding relief under the plain
error standard. See Lindsey, 634 F.3d at 551.
IV. CONCLUSION
The district court plainly erred in requiring the defense to
waive a peremptory challenge each time it accepted a jury
panel as constituted. The district court should have permitted
the defense to exercise the total number of peremptory chal-
lenges to which it was entitled, regardless of whether it had
previously accepted a jury panel as then constituted. How-
ever, under plain error review, reversal of Yepiz’s convictions
was not warranted, as Yepiz failed to demonstrate that the
judicial proceedings were seriously affected by seating of the
juror Yepiz challenges on appeal.
AFFIRMED.