United States v. Krout , 66 F.3d 1420 ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-50290
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS WILLIAM KROUT, a/k/a Mark
William Danford, a/k/a Doug Kraus,
a/k/a Doug Lopez, CYNTHIA ANN VARGAS,
SOLIS HUERTA, SOFIA AGUIRE NANEZ,
ROGELIO ROGER PEREZ ZAMORA, HERIBERTO
HERBERT HUERTA, ROGELIO ROY MEDINA
ARCE, and HECTOR CAMPOS ALVAREZ,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
(October 6, 1995)
Before POLITZ, Chief Judge, JONES, and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This is a consolidated appeal arising from the conviction
of seven defendants for participating in a continuing enterprise of
murder, drug distribution, and firearm offenses as members and
conspirators in a Texas prison gang referred to as the "Mexican
Mafia." The principal offenses proved at trial involved an
elaborate cocaine and heroin distribution scheme within state
prisons and on the streets of San Antonio. Most of the inevitable
differences among the confederates were resolved by murders either
approved or executed by some of these defendants. Although the
evidence adduced at trial was overwhelming,1 the defendants have
raised multiple grounds for reversing their convictions. Of these
grounds, the challenges to jury anonymity and the imposition of
consecutive sentencing are the most significant. We find no
reversible error and affirm.
I. Evidentiary Challenges
A. Wiretap Evidence
The assorted defendants begin their attack with
challenges to the evidence-gathering techniques employed by the
government. Specifically, they present three objections to the
evidence seized pursuant to court authorized electronic
surveillance. Defendants Huerta and Zamora argue that because the
terms of the initial wiretap order, entered on September 17, 1992,
limited the period of surveillance to ten days, interceptions
recorded after these first ten days must be suppressed (as well as
the fruits of these conversations).2 Solis Huerta, Nanez and
Alvarez argue that the wiretap applications and affidavits failed
to make the required showing that normal investigative procedures
were tried and failed or reasonably appeared unlikely to succeed or
too dangerous. Finally, Alvarez argues that the interception of
1
Indeed, the gang's "constitution", introduced into evidence, states in
its preamble: "Being a criminal organization . . . [w]e shall deal in drugs,
contract killings, prostitution, large scale robbery [etc.]"
2
Defendants Arce, Solis Huerta and Nanez also expressly adopted this
argument.
2
the conversations between Huerta and his wife Solis Huerta violated
their expectation of privacy.
The first order entered by the district court is slightly
awkward in syntax.3 Nonetheless, the most plausible reading of the
order authorizes interception until either the authorized
objectives were obtained or for a period of thirty days, whichever
event occurs first. The thirty days, in turn, are measured from
"the earlier of the day on which investigative or law enforcement
officers first begin to conduct an interception under this Order or
ten (10) days after the Order is entered." To read the language of
the order otherwise (i.e., with a strict limit of ten days), as the
defendants suggest, would impermissibly fail to effectuate the
thirty-day period referred to in the termination provision because
there are no circumstances in which interception may extend beyond
ten days. Moreover, the defendants' argument ignores the intent of
the issuing judge who obviously anticipated some significance to
the thirty day period since he required ten, twenty, and thirty day
progress reports to be filed, and authorized continued interception
on any changed phone number occurring within this thirty day
window.
Title 18 U.S.C. § 2518(1)(c) and (3)(c) require the
applicant for a wiretap order to verify -- and the issuing judge to
3
The order provided that monitoring
shall terminate upon attainment of the authorized
objectives as listed above, or, in any event, at the end
of thirty (30) days from the earlier of the day on which
investigative or law enforcement officers first begin to
conduct an interception under this Order or ten (10) days
after the Order is entered, whichever is earlier.
3
find -- that "normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if tried
or to be too dangerous." "What is required is a showing that in
the particular investigation normal investigative techniques
employing a normal amount of resources have failed to make the case
within a reasonable period of time." United States v. Alfonso, 552
F.2d 605, 612 (5th Cir.), cert. denied, 434 U.S. 857 (1977)
(quotation omitted). Here the affidavits contained detailed
accounts of the investigative techniques that were used by the
agencies investigating the Mexican Mafia.
Specifically, the affidavits asserted that informants or
undercover agents could not infiltrate the conspiracy at high
enough levels to obtain sufficient evidence to prosecute managers
of the organization. This court has previously affirmed wiretap
orders based upon similar affidavits. See United States v. Guerra-
Mares, 928 F.2d 665, 671 (5th Cir.), cert. denied, 112 S. Ct. 322
(1991); United States v. Webster, 734 F.2d 1048, 1055 (5th Cir.),
cert. denied, 469 U.S. 1073 (1984). These affidavits amply
established an inability to fully develop a case from informants'
knowledge, inability to infiltrate with undercover agents, lack of
access to primary targets, the limited value of searches in proving
these offenses, and informants' fear and unwillingness to testify.4
4
Alvarez lacks standing to challenge the interception of the Huertas'
conversations; he has no constitutionally recognized interest in asserting their
privacy rights. See Alderman v. United States, 394 U.S. 165, 171-72, 176 (1969);
United States v. Ruggiero, 928 F.2d 1289, 1303 (2d. Cir.), cert. denied, 112 S. Ct.
372 (1991).
4
B. Evidence of Murders
Huerta, Zamora, Solis Huerta and Nanez challenge the
admission of evidence about the murders of Rangel, "Chepo"
Hernandez, "Pancho" Canales, and the attempted murder of "Tye"
Morales. Huerta and Zamora argue that the evidence was offered to
prove bad character in violation of Rule 404(b); all four
defendants argue that the evidence was unduly prejudicial.
Yet "[e]vidence of an uncharged offense arising out of
the same transactions as the offense charged in the indictment is
not extrinsic evidence within the meaning of Rule 404(b)." United
States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991), cert. denied,
112 S. Ct. 1510 (1992). Huerta, Zamora, Arce and Alvarez were
charged in the superseding indictment with a RICO offense and RICO
conspiracy. That indictment specifically alleged that members and
associates of the criminal enterprise engaged in the actual and
threatened use of violence, including murder, to further the
objectives of the enterprise, to obtain money, and protect the
organization from law enforcement investigations. These murders
and attempted murder were not introduced as character evidence but
as acts committed by members of the Texas Mafia in furtherance of
the RICO offenses.
The government is not limited in its proof of a
conspiracy or racketeering enterprise to the overt or racketeering
acts alleged in the indictment. United States v. Wilson, 657 F.2d
755, 763 (5th Cir. 1981), cert. denied, 455 U.S. 951 (1982).
Morales, Rangel, Hernandez and Canales had all served as "generals"
5
in the Texas Mexican Mafia, commanding the members outside of
prison in San Antonio. Evidence of how disputes were settled with
these members or how they were treated if believed to be
cooperating with law enforcement was properly admitted to prove the
allegation in the indictment that murder and extreme violence were
part of the organization's pattern of racketeering activities. See
United States v. Firestone, 816 F.2d 583, 587 (11th Cir.), cert.
denied, 484 U.S. 948 (1987); United States v. Hawkins, 681 F.2d
1343, 1346 (11th Cir.), cert. denied, 459 U.S. 994 (1992).
C. Coconspirator Testimony
Zamora challenges the district court's admission of two
recorded conversations between Rangel's wife, Emily Mendoza, and
her son, Edward, in which Mendoza discusses the efforts to kill a
bookie, Ramirez, to whom Rangel and Zamora owed money. Zamora
argues that because Mendoza was not a conspirator and the
statements were not made in furtherance of the conspiracy, these
statements were inadmissible hearsay. This court reviews the
district court's admission of evidence under Rule 801(d)(2)(E) for
abuse of discretion. United States v. Triplett, 922 F.2d 1174,
1181 (5th Cir.), cert. denied, 500 U.S. 945 (1991). The district
court's determinations that the statement was made by a
coconspirator and in furtherance of the conspiracy are findings of
fact reversible only if clearly erroneous. United States v.
Stephens, 964 F.2d 424, 434 (5th Cir. 1992).
Although debatable, the district court's decision that
Mendoza's comments were made by a coconspirator and in furtherance
6
of that conspiracy were not clearly erroneous. First, Mendoza was
with Rangel when he explained the details of the plan to kill
Ramirez, and she suggested an improvement to the plan. ("You
should have paid Edward instead.") Second, she also attempted to
get the job of murdering Ramirez assigned to her son as part of an
effort to recruit someone to actually commit the murder that was
initially bungled. Although this could be explained as an
independent endeavor to find work for her son, "[w]here there are
two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous." Anderson v. Bessemer
City, 470 U.S. 564, 574 (1985).
In any event, these conversations were merely cumulative
of recorded conversations among Rangel, Arce, Zamora and others
that indubitably established a conspiracy to murder Ramirez.
II. Jury Challenges
A. Jury Anonymity
We next address the appellants' challenge to the
procedure employed by the district court in deciding to empanel an
anonymous jury, and the substance of the decision that such a
device was warranted. The appellants complain that the district
court abused its discretion in ordering an anonymous jury by: (1)
failing to conduct a hearing; (2) failing to afford appellants an
opportunity to refute the allegations in the government's motion
for anonymous jury; (3) deciding to select an anonymous jury based
solely on the unsworn allegations contained in the government's
motion; (4) failing to advise the jury of a neutral or
7
nonprejudicial reason for their anonymous selection; (5) failing to
preserve the safeguards of a fair and impartial jury selection;
and, (6) because the unusual circumstances that might justify
empaneling an anonymous jury were not present in this case.
Anonymous jury empanelment is an issue of first
impression in this circuit, but our analysis is guided by the
standards developed in other circuits, all of which hold that a
lower court's decision to empanel an anonymous jury is entitled to
deference and is subject to abuse of discretion review. United
States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir. 1991); United
States v. Thornton, 1 F.3d 149, 154 (3rd Cir.), cert. denied, 114
S. Ct. 483 (1993); United States v. Crockett, 979 F.2d 1204, 1215-16
(7th Cir.), cert. denied, 113 S. Ct. 1617 (1993); United States v.
Daniels, 986 F.2d 451, 454 (11th Cir. 1993) (district court has
wide discretion in determining which questions will be asked during
voir dire). Accordingly, this court adopts the same abuse of
discretion standard of review and will afford deference to a
district court's empanelment of anonymous juries.
Keeping this standard in mind, we first reject the
appellants' objections to the procedural aspects of the district
court's decision. The court provided ample opportunities for the
various defendants to state their objections and to develop their
arguments. That the court did not follow the exact procedures
urged by the defendants on appeal is insignificant.5 Indeed, only
5
The court found that anonymity would dispel possible fear by jurors for
their safety and promote impartial verdicts. To this end, the court ordered a U.S.
Deputy Marshal to accompany jurors at recesses and to pick up and drop off jurors
8
Huerta, Zamora and Alvarez filed written objections to the
government's motion to empanel an anonymous jury.6 A conference
hearing was also held to discuss the motion, and no appellant
objected to the court's failure to pose questions to the venire
other than on the subject of their identities.
Moving to the merits of the decision to empanel an
anonymous jury, it must be emphasized that this is a drastic
measure, which should be undertaken only in limited and carefully
delineated circumstances. United States v. Ross, 33 F.3d 1507
(11th Cir. 1994). Courts that have upheld this form of juror
protection have reasoned that it is constitutional when needed to
ensure against a serious threat to juror safety, if the courts also
protect the defendants' interest in conducting effective voir dire
and maintaining the presumption of innocence. United States v.
Wong, 40 F.3d 1347, 1376 (2nd Cir. 1994); United States v. Amuso,
21 F.3d 1251, 1264 (2nd Cir.), cert. denied, 115 S. Ct. 326 (1994);
United States v. Paccione, 949 F.2d at 1192. "These competing
individual and institutional interests are reasonably accommodated,
and the use of an anonymous jury is constitutional when, 'there is
at an undisclosed location at the beginning and end of each day. To attain such
anonymity, the court ordered simply that the names, addresses, and places of
employment of jurors and spouses would not be disclosed to the parties. The
district court also stated that it would provide a neutral explanation for the
anonymous status, explaining that it was not the result of any threat by any
defendant. While the anonymous status endured throughout the trial, the court did,
however, deviate from its intentions in several respects. First, it did not
implement the proposed method of transporting jurors, instead allowing them to
report directly to the courthouse each day during trial. Second, the court did
not explain to the jury their anonymous status. Similarly, the court did not
implement a sequestration order entered during trial until the jury began its
deliberations.
6
The district court, nonetheless, deemed all defendants to have joined
any such objection.
9
strong reason to believe the jury needs protection' and the
district court 'tak[es] reasonable precautions to minimize any
prejudicial effects on the defendant and to ensure that his
fundamental rights are protected'". United States v. Wong, 40 F.3d
at 1376 (internal citations omitted). United States v. Vario, 943
F.2d 236, 239 (2nd Cir. 1991), cert. denied, 112 S. Ct. 882
(1992)(when this balance is properly struck, the use of an
anonymous jury does not violate the defendant's constitutional
rights). Within these parameters, and, again noting the
seriousness of such a step, the decision whether or not to empanel
an anonymous jury is left to the district court's discretion.
Factors that may justify jury protection by anonymity
include: (1) the defendants' involvement in organized crime;
(2) the defendants' participation in a group with the capacity to
harm jurors; (3) the defendants' past attempts to interfere with
the judicial process or witnesses; (4) the potential that, if
convicted, the defendants will suffer a lengthy incarceration and
substantial monetary penalties; and, (5) extensive publicity that
could enhance the possibility that jurors' names would become
public and expose them to intimidation and harassment. United
States v. Paccione, 949 F.2d at 1192; United States v. Amuso, 21
F.3d at 1264-65; United States v. Ross, 33 F.3d at 1520.
Furthermore, as a caution that use of anonymous juries will remain
a device of last resort, it is necessary that the district court
base its decision on more than mere allegations or inferences of
10
potential risk.7 In accordance with a holding by the Second
Circuit, however, the use of anonymous juries will be upheld where
evidence at trial supports the conclusion that anonymity was
warranted. United States v. Wong, 40 F.3d at 1376-77 (even if the
district court had relied only on the government's proffer, the
trial record supports the court's order of anonymity).
All of the above factors were present in this case, and
the district court did not abuse its discretion in empaneling an
anonymous jury. Evidence at trial and in wiretap affidavits
established that appellants were members and leaders of the Texas
Mexican Mafia. By its written constitution, the organization
defined itself as criminals dealing in drugs, contract killings,
prostitution, large scale robbery, gambling, weapons, and "in
everything imaginable." One of the group's tenets was to interfere
with potential witnesses -- specifically, to murder or attempt to
murder members suspected of informing authorities; such acts did
occur. The gang had been linked to dozens of murders in San
Antonio from 1990-92. The organization also sought to corrupt law
enforcement authorities to further their goals. The appellants
faced substantial penalties, as Huerta was sentenced to life in
prison, Alvarez, Zamora, and Arce received sentences of 300, 360,
and 420 months, respectively, and the shortest term of imprisonment
imposed on those tried was 120 months. Finally, prior to trial,
7
A lesser showing might be adequate where specific evidence exists
linking the defendant to organized crime. Satisfaction of this element alone can,
in turn, translate into the requisite showing for the empanelment of an anonymous
jury. United States v. Persico, 832 F.2d 705 (2nd Cir. 1987), cert. denied, 486
U.S. 1022 (1988)(anonymous jury upheld where crime family's normal
course of business suggested risk of obstruction and harm).
11
counsel for several defendants observed, and the district court
agreed, that the case had been the subject of much publicity which
would likely continue to the case's resolution.8
B. Batson Claim9
After objection, the United States stipulated that of the
11 prospective jurors stricken peremptorily by the government,
seven appeared to be of Hispanic ethnicity. The district court
found a prima facie case of discrimination based upon the number of
strikes against presumably Hispanic veniremen.10 Pursuant to
Batson, the court asked the prosecutor to explain the reason for
each of the challenged peremptory strikes, and the court was
satisfied that there was no purposeful racial discrimination.11
This court reviews that conclusion under the clearly erroneous
standard. Hernandez v. New York, 500 U.S. 352, 364-365, 369, 111
S. Ct. 1859, 1868-69, 1871 (1991).
The government suggests that this court should not
address the merits of the Batson claim. To be timely, a Batson
challenge must be raised before the venire has been dismissed.
United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993), cert.
8
At the close of oral argument in this appeal, a specific issue arose
as to whether or not the government during trial inadvertently obtained names and
telephone numbers for the jurors in this case. This court requested the parties to
submit further documentation of such allegations and, after careful review of the
record, we are convinced that such was not the case.
9
Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1723-24 (1986).
10
The United States believes that eight other persons who might have
been Hispanic remained as prospective jurors, and three of them were seated on the
jury, while two others became alternate jurors. Defense counsel at oral argument
conceded that at least two seated jurors were of Hispanic origin.
11
See n.13 infra for a summary of the reasons given.
12
denied, 114 S. Ct. 1096 (1994). An objection raised after the jury
is seated and the venire has been dismissed does not preserve the
claim. United States v. Collins, 972 F.2d 1385, 1402 (5th Cir.
1992), cert. denied, 113 S. Ct. 1812 (1993). A proper objection
must be made before the venire is excused and leaves the courtroom.
Maseratti, 1 F.3d at 335 n.1. The record here is ambiguous
concerning the exact sequence of events,12 but we will assume the
objection was timely.
Resolution of the merits of the Batson challenge posed by
all defendants is much simpler in light of Purkett v. Elem, ___
U.S. ___, 115 S. Ct. 1769 (1995). Reversing the court of appeals,
which had demanded that a race-neutral explanation be related to
the facts of the particular case, the Supreme Court held that all
that a prosecutor need offer is a facially valid explanation. Id.
at 1771. "Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race
neutral." Id. (citing Hernandez, 500 U.S. at 360 (plurality
opinion), 374 (O'Connor, concurring)). Accordingly, a "’legitimate
reason' is not a reason that makes sense, but a reason that does
not deny equal protection." Id.
12
After the judge read the numbers of the sixteen jurors selected to
serve, the district court thanked the other veniremen and instructed them to hand
their "juror" buttons to somebody at the back door. He informed them they could be
on their way, and according to the record there was a pause as those excused left
the courtroom. Next, the district judge ordered the selected jurors to move into
the jury box. Only after they had moved into the box, and the court began
addressing the jury as selected did defense counsel apprise the court, "We may have
a Batson problem." Counsel acknowledged that he needed to raise the issue
before losing jurors, but the district court observed, "it's too late to bring them
back." The court then proceeded to give preliminary instructions to the jury.
It is unclear whether the veniremen had physically left the courtroom when
defense counsel first offered a Batson-objection to the district court.
13
The district court believed the reasons proffered by the
assistant United States attorney were genuine, and nothing in the
record has been identified to suggest this credibility evaluation
to have been clearly erroneous.13
III. Procedural Challenges
A. Misjoinder, Rule 8
"Improper joinder under Rule 8 is considered to be inherently
prejudicial and this is reviewable on appeal as a matter of law."
United States v. Bright, 630 F.2d 804, 813 (5th Cir. 1980). This
criminal procedure rule authorizes joinder of defendants "if they
are alleged to have participated in the same act or transaction or
in the same series of acts or transactions constituting an offense
or offenses." Its requirement is satisfied by allegation of an
overarching conspiracy that encompasses the substantive offenses
charged. United States v. Faulkner, 17 F.3d 745,758 (5th Cir.),
cert. denied, 115 S. Ct. 193 (1994). If an indictment charges RICO
violations, offenses committed as part of the pattern of
13
In Purkett, the reason proffered by the prosecution was that the juror
had a beard and long hair. These justifications, held sufficient in Purkett, are
the least trial-related explanations proffered in this case:
a. Jurors 1, 13, and 59 expressed difficulty reading the English
language, which prompted concern because of the voluminous
transcripts introduced into evidence. Juror 59 also had a
tattoo which could indicate prior affiliation with a gang.
b. Juror 10's demeanor appeared "lackadaisical," and he laughed at
inappropriate times. Juror 56 also was excused for failure to
exhibit an appropriate degree of seriousness.
c. Juror 94 indicated in his response that the Mexican Mafia sought
peace. Concerned with potential bias, the prosecutor was
further troubled by his long hair and a beard.
d. Juror 100 was excused because of her son's previous experience
with juvenile court, and her casual attitude.
14
racketeering activity are properly joined even if the defendant
objecting is not named in the RICO count. United States v.
Manzella, 782 F.2d 533,540 (5th Cir.), cert. denied, 476 U.S. 1123
(1986).
Yet Krout notes that he was only indicted for
participating in the heroin conspiracy and with the substantive
offense of possessing with intent to distribute heroin on March 15,
1993. Citing United States v. Bova, 493 F.2d 33 (5th Cir. 1974),
and United States v. Gentile, 495 F.2d 626 (5th Cir. 1974), he
reasons that he falls within the rule requiring severance where all
of the defendants are charged with offenses arising out of the same
series of acts or transactions, but one defendant is additionally
charged with an offense which is not alleged to have arisen out of
the same series of acts or transactions.
Krout is only partially correct because he ignores United
States v. Welch, 656 F.2d 1039, 1049-50 (5th Cir. 1981). This
court in Welch held that "the joinder of otherwise separate acts
may be allowed when the acts are properly linked by means of a
conspiracy charge." Id. at 1051. Significantly, this court
expressly decided that "[i]t is true that a RICO conspiracy count
can provide the connexity between two otherwise unrelated
conspiracies necessary to satisfy the requirements of Rule 8(b)."
Id. More importantly, the Welch court adopted the reasoning of the
Second Circuit in United States v. Weisman, 624 F.2d 1118 (2d
Cir.), cert. denied, 449 U.S. 871 (1980).
15
In Weisman, as in Krout's case, an individual
defendant -- Cannatella -- was charged in the indictment with
bankruptcy fraud and not in either the securities fraud or any
unifying RICO count. Nevertheless, the Second Circuit held (with
this court later approving) that the joint trial of Cannatella with
the other RICO defendants did not violate Rule 8(b). Welch, 656
F.2d at 1052-1053. Similarly, no error was committed by Krout's
joinder in this case.
B. Severance, Rule 14
Krout, Nanez, and Solis Huerta all argue that the
district court abused its discretion in denying their motions for
relief from prejudicial joinder under Fed. R. Crim. P. 14.
Generally, however, persons indicted together should be
tried together. United States v. Arzola-Amaya, 867 F.2d 1504, 1516
(5th Cir.), cert. denied, 493 U.S. 933 (1989). A district court
should grant a Rule 14 severance "only if there is a serious risk
that a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence." Zafiro v. United States, 113
S. Ct. 933, 939 (1993). Indeed, neither a quantitative disparity in
the evidence nor the presence of a spillover effect requires a
severance." United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.),
cert. denied, 115 S. Ct. 530 (1994). Normally, limiting
instructions to the jury will cure any risk of prejudice. Zafiro,
113 S. Ct. at 938.
16
To reverse for abuse of discretion thus requires a
showing of specific and compelling prejudice. United States v.
Thomas, 12 F.3d 1350, 1363 (5th Cir.), cert. denied, 114 S. Ct. 1861
(1994). These defendants cannot approach such a showing:
a. The evidence about Krout's illicit activity was
focused and compartmentalized. Presentation of evidence
related to his delivery of heroin to Saldana and Munoz
was limited to the 11th, 12th and 14th days of trial.
Moreover, Krout's opening argument specifically directed
the jury's attention to the events of March 15, 1993 and
warned against "spillover." The actual disputed factual
issues concerning his guilt were simple and limited:
whether the surveillance officers could see him deliver
a package to Saldana; and whether or not Erasmo
Gonzalez's testimony was credible.
b. The extent of Solis Huerta's involvement was
also not difficult to separate from the larger universe
of evidence. She communicated with her husband Huerta,
packaged heroin, and connected Huerta with other gang
members by telephone. Nanez's role was similar but she
also actively participated in collecting the "dime," and
facilitating communications between her father Huerta and
other gang members. Both of these defendants also had
the testimony presented against them in a block on the
4th, 5th and 6th days of trial.14
IV. Alvarez’s, Krout’s, and Arce’s Separate Challenges
A. Alvarez
1. Evidentiary Challenges
Alvarez challenges the district court's denial of his
motion to suppress evidence obtained pursuant to a search warrant
14
In addition to the court's instruction to consider each defendant's
guilt individually, the care and attention of the jury was obvious from the specific
and focused notes it sent to the district court throughout its seven day period of
deliberations.
Initially, the jury requested an index for the volumes of wiretap transcripts.
Subsequently, the jury sent notes concentrating on Hector Alvarez, then about the
murder offense involving Arce and Zamora, proceeding to the shipment of heroin to
California (implicating Huerta, Solis Huerta, and Nanez), moving onto the testimony
of Morales, and culminating with Krout's March 15 transaction. This course of
events reflects careful sifting of the evidence, or as the district court observed,
they "studied this matter very carefully."
17
from the residence of Rosa Rubio in San Antonio. Regardless of the
merits of his contention about the deficiency of the warrant,
Alvarez has no standing to challenge its constitutionality.
Alvarez has the burden of establishing that his own
constitutional rights were violated by an unlawful search or
seizure. United States v. Wilson, 36 F.3d 1298, 1302 (5th Cir.
1994). Alvarez neither alleged nor offered evidence at the
suppression hearing that he had any property or possessory interest
in the property searched at 6154 Bark Valley. "In general, a person
who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third
person's premises or property has not had any of his Fourth
Amendment rights infringed." Wilson, 36 F.3d at 1302. The
government alerted Alvarez in its response to his motion to
suppress that he had the burden of establishing his expectation of
privacy in the premises searched. This court does not deem
standing to be waived where "no facts were adduced at the
[suppression] hearing from which the government could reasonably
have inferred the existence of the defendant's standing." United
States v. Cardona, 955 F.2d 976, 982 (5th Cir.), cert. denied, 113
S. Ct. 381 (1992).
Alvarez also challenges, primarily under Fed. R. Evid.
404(b), the admission of two of his prior traffic stops by police
officers. During the first stop, on June 11, 1992, Alvarez fled
the scene and discarded nine packets of heroin and a handgun. The
second stop, which occurred on March 12, 1993, was for driving
18
while intoxicated. Contrary to his assertions, none of the
evidence admitted about these two stops was character evidence
within the meaning of Rule 404(b).
Rule 404(b) excludes most evidence of extrinsic offenses
offered to prove a defendant acted in conformity with his bad
character. Uncharged offenses arising from the same transaction or
series of transactions charged in the indictment, however, are not
barred by the rule. United States v. Maceo, 947 F.2d 1191, 1999
(5th Cir. 1991), cert. denied, 112 S. Ct. 1510 (1992). More
specifically, evidence of acts committed pursuant to a conspiracy
and offered to prove the defendant's membership or participation in
the conspiracy are not extrinsic evidence. United States v. Davis,
19 F.3d 166, 171 (5th Cir. 1994).
Thus, to avoid the strictures of Rule 404(b), all the
government need do is suggest a logical hypothesis of the relevance
of the evidence for a purpose other than to demonstrate his
propensity to act in a particular manner. Here, the prosecutor
proposed to introduce evidence of the first traffic stop because it
physically associated appellant Alvarez with Victor "Morro"
Alvarez, a member of the Texas Mexican Mafia conspiracy. Moreover,
it corroborated the testimony of uncharged conspirator Lisa Rubio
that these two men were engaged in a drug trafficking operation.
Finally, the evidence could also be admissible as an act "part and
parcel of the conspiracy itself." The June date of this traffic
stop fell within the time period of the offenses charged in the
19
indictment and implicated the same offense conduct and a
participant identified in wiretap recordings.
The 1993 stop for DWI was similarly admissible. The
evidence at trial was limited to the fact of the actual stop and
the reason was never provided the jury. The United States limited
its proof to the fact that Alvarez was stopped and identified as
the driver of a car registered to Lisa Rubio. Not only did the
evidence corroborate Rosa Rubio's testimony about the relationship
between Lisa Rubio and Victor Alvarez, it also linked Alvarez to
Rangel, one of the leaders of the alleged conspiracy, because the
same vehicle had been observed by a surveillance officer at
Rangel's residence in December, 1992.
2. Jury Instruction
Alvarez requested the district court to give the jury a
lesser included offense instruction misdemeanor possession of
heroin or cocaine, in violation of 21 U.S.C. § 844(a). To be
entitled to such an instruction, the elements of the lesser offense
must be a subset of the elements of the charged offense. See
United States v. Garcia, 27 F.3d 1009, 1014 (5th Cir.), cert.
denied, 115 S. Ct. 531 (1994); Schmuck v. United States, 489 U.S.
705, 716 (1989). Indeed, each statutory element of the lesser
offense must also be present in the greater offense. United States
v. Browner, 937 F.2d 165, 168 (5th Cir. 1991).
The elements of simple possession of a controlled
substance are (1) the knowing possession (2) of a controlled
substance. Alvarez, however, was charged in Count I with a
20
substantive RICO violation under 18 U.S.C. section 1962(c).
Racketeering activities are defined by statute to include "the
felonious manufacture, importation, receiving, concealment, buying,
selling, or otherwise dealing in narcotic or other dangerous
drugs." 18 U.S.C. § 1961(1)(D)(emphasis added). Simple possession
of heroin or cocaine does not even constitute a RICO predicate
offense. Counts Two, Four and Five charged Alvarez with
conspiracies to commit the substantive offense, and to distribute
and possess with the intent to distribute heroin and cocaine.
Simple possession is not a lesser included offense of a drug
conspiracy, United States v. Rodriguez, 948 F.2d 914, 917 (5th Cir.
1991), cert. denied, 112 S. Ct. 2970 (1992), nor should it be a
lesser offense for a RICO conspiracy.
Alvarez also urges that the district court committed
reversible error by failing to charge the jury that "mere agreement
to commit the predicate acts charged is not sufficient to find the
defendant guilty of conspiracy to violate the RICO statute." The
trial court's refusal is reviewed for abuse of discretion. United
States v. Jensen, 41 F.3d 946, 953 (5th Cir. 1994). Denial of a
requested instruction is not error when its substance is implicit
in the instructions actually given. United States v. Ramirez, 963
F.2d 693, 705 (5th Cir.), cert. denied, 113 S. Ct. 388 (1992).
The district court's instructions separated the
enterprise from the pattern of racketeering activity. And they
quite carefully explained each of the elements necessary for
21
predicate offenses, a "pattern," and conspiracy.15 Considered as
a whole, these instructions did not permit the jury to find a RICO
conspiracy solely upon proof that Alvarez agreed to commit the
predicate crimes.
3. Statutory Challenge
Alvarez argues that the elements of "pattern of
racketeering activity" and activities of an enterprise that "affect
interstate or foreign commerce" are both unconstitutionally vague
on their face and as applied to him. This circuit has already
specifically rejected the facial challenge to the vagueness of
"pattern of racketeering activity." Abell v. Potomac Ins. Co. of
Illinois, 946 F.2d 1160, 1165-67 (5th Cir. 1991), cert. denied, 112
S. Ct. 1944 (1992). As applied, the statute itself enumerates
offenses that qualify as "racketeering activity." The Supreme
Court defined the "pattern" component to require the prosecution to
"show that the racketeering predicates are related, and that they
amount to or pose a threat of continued criminal activity." H.J.
Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989).
Hence, Alvarez must argue that the scope of this pattern element
"was so unclear that a person of ordinary intelligence in [his]
15
First, the judge directed the jury that "[t]o prove a pattern of
racketeering activity, the government must prove . . . that the acts are related to
each other and, two, they amount to or pose a threat of continuing criminal
activity." He then defined what the government must establish to prove the
racketeering acts are related to one another: "[T]he criminal conduct charged
embraces criminal acts that have the same or similar purposes, results,
participants, victims . . . and are not isolated events." Next, the district court
carefully outlined that the defendant must be linked to the illegal endeavors of the
enterprise by participating or "conduct[ing] its affairs: To do so, the government
must additionally demonstrate a relationship among the defendant, the pattern of
racketeering activity and the enterprise." He cautioned the jury explicitly, "The
defendant and the enterprise cannot be the same." Finally, the court precisely
defined the elements of a RICO conspiracy.
22
position would not have had adequate notice that his actions
constituted a pattern of racketeering activity." Abell, 946 F.2d
at 1167 (internal quotations omitted). Alvarez was shown to be a
member of the Mexican Mafia, an organization officially devoted to
criminal activities,16 which dealt and distributed narcotics,
sanctioned murder, and organized an extortionate collection scheme
of a "street tax." RICO was certainly intended to encompass these
activities designed to further an organized crime enterprise.
Because Alvarez did not truly develop the interstate
commerce vagueness argument in his brief, the point is abandoned.17
B. Krout
1. Replayed Testimony
The district court denied the jury's request during
deliberations to replay the testimony of the officers involved in
the surveillance and stop of Krout on March 15. Generally,
rereading or replaying testimony is disfavored. United States v.
Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123
(1983); United States v. Keys, 899 F.2d 983, 98 (10th Cir.), cert.
denied, 489 U.S. 858 (1990). Denial of such a request is proper
when the court finds that replaying the testimony would take an
inordinate amount of time or create a risk that the jury would
place an undue emphasis on that evidence. United States v.
16
Recall, the gang's self-avowed objective was to "deal in drugs,
contract killings, prostitution, large scale robbery, gambling, weapons . . ."
17
We have also considered -- and reject -- Alvarez's argument that there
was insufficient evidence to convict him on all counts.
23
Schmitt, 748 F.2d 249, 256 (5th Cir. 1984), cert. denied, 471 U.S.
1104 (1985).
This request from the jury encompassed four to six hours
of testimony. The parties themselves were unable to focus the
request into a more manageable segment of the testimony. Further,
because the testimony was audiotaped it would have required
redaction prior to playing before the jury. At this time, the jury
had already deliberated into the fifth day, and had previously
requested two other lengthy replays of testimony. No abuse of
discretion occurred in denying this request.
2. Expert Testimony
Detective Martinez testified during the playing of three
recorded conversations in which "Cowboy" Gonzalez was a participant
or was discussed. The district court denied Krout's objections to
questions soliciting the officer's opinion that references to "the
people" and the "driver of the truck" indicated that Gonzalez was
acting with others to bring heroin into the area. Although this
court has held that an undercover agent may interpret the "argot or
seemingly secret jargon of []alleged criminals," United States v.
Fuller, 974 F.2d 1474,1482 (5th Cir. 1992),18 expert testimony
regarding the meaning of ordinary words, which the jury is in as
good a position as the 'expert" to interpret, must be excluded.
United States v. Allibhai, 939 F.2d 244, 250 (5th Cir. 1991). Here
the excerpts of conversation which Martinez was asked to comment on
18
The agent was permitted to explain the term "move around" money means
money laundering.
24
were not alleged by the United States to be code -- as is often the
case in wiretapped conversations.
Nonetheless, erroneous admission of expert testimony is
subject to harmless error analysis. United States v. Weiner, 3
F.3d 17,21-22 (1st Cir. 1993). The testimony objected to by
counsel did little to incriminate Krout. First, other evidence
introduced at trial established that the "people" referred to in
this conversation about the December 28 transaction did not include
Krout.19 Gonzalez's own testimony confirmed this fact. For the
exact opposite reason, testimony concerning the March 14
conversation was also harmless to Krout; it was cumulative of other
incriminating evidence: Gonzalez testified that Krout delivered
the heroin to a Mr. Saldana on March 15. Significantly, this
testimony was corroborated by surveillance of the exchange of
packages between Krout's and Saldana's vehicles, the seizure of
heroin from a box of laundry detergent in Saldana's car, and 1-2
cupfuls of laundry detergent from Krout's Blazer.
3. Consecutive Sentencing
Krout's challenge to his sentence, however, merits
extended discussion. Krout complains that the district court
failed to apply the methodology provided by the commentary to
§ 5G1.3(c), a policy statement, and that if it had, the district
court would have imposed the sentence to run concurrent with a
sentence imposed in the Southern District of Texas.
19
Indeed, after Detective Martinez clarified that Krout was not involved
in the December 28 transaction Krout's attorney remarked that he "had no problem"
with the testimony that Gonzalez was not acting alone.
25
At sentencing, the district court informed Krout that it
would impose the sentence for this offense consecutive to a 97-
month term imposed for a prior drug offense in the Southern
District of Texas. (Krout was a fugitive when he committed the
offenses involved in this case.) Both Krout and his attorney asked
the district judge to reconsider this decision, and noted an
"objection" for the record. However, Krout's objection offered no
particular legal basis.20 The government contends that Krout's
imprecise objection is insufficient to preserve the claimed error
for review. We agree.
Krout's objection was in the manner of a simple plea for
leniency. Indeed, nothing in Krout's objection gave any indication
of the sentencing error now claimed. "A party must raise a claim
of error with the district court in such a manner so that the
district court may correct itself and thus, obviate the need for
our review." United States v. Bullard, 13 F.3d 154, 156 (5th Cir.
1994). By failing to properly object at sentencing, the defendant
20
The record reflects this exchange after the sentence was imposed:
KROUT: Your Honor, could I say one more thing?
COURT: Yes.
KROUT: Could I just ask you to reconsider about running it concurrent
with the Corpus Christi? You know, its a very long time away
from my family, your Honor.
COURT: The Court will deny that request at this time, Mr. Krout, and
the Court will order that the hundred and sixty-eight months on
this case run consecutive to the ninety-seven months imposed in
the Corpus case. The Court, it will--
FAHLE (Counsel): Your Honor, I'm sorry. I've just two other
quick things. I want to make sure that our objection to that is
preserved. And, secondly, I would now orally file a notice of
appeal, and I'll follow it later with a written notice of
appeal.
26
waives his right to full appellate review. This Court will remedy
errors so forfeited only in the most exceptional case. United
States v. Torrez, 40 F.3d 84, 86 (5th Cir. 1994). In other words,
we review only for plain error.21
In order to show plain error, the appellant must show
that there was an error, that it was plain (meaning "clear" or
"obvious") and that the error affects substantial rights. This
Court lacks the authority to relieve an appellant of this burden.
United States v. Olano, --U.S.--, 113 S. Ct. 1770, 1777-81, 123 L.
Ed. 2d 508 (1993). In addition, even when the appellant carries
this burden, this Court is not required to correct the error. The
Supreme Court has directed that such a forfeited error should be
corrected if the error "seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings." Id. at --, 113 S.
Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160,
56 S. Ct. 391, 392, 80 L. Ed. 555 (1936)).
In the written judgment of commitment the district court
explained its decision to impose consecutive sentences:
According to U.S.S.G. § 5G1.3, the sentence for the
instant offense should result in an appropriate
incremental punishment that most nearly approximates the
sentence that would have been imposed had both sentences
been imposed at the same time. Based upon the purity of
the heroin, the defendant's obstructive behavior, and the
fact that the defendant was not prosecuted for bond
jumping in the Southern District of Texas, the court
finds that the consecutive sentence in this case is
appropriate.
21
Rule 52(b) of the Federal Rules of Criminal Procedure provides: "Plain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court."
27
The actual sentence imposed for this offense was at the low end of
the guideline range of imprisonment: 168 months in a range of 168-
210 months.
Guideline section 5G1.3(c) provides that, in any case
other than those covered under subsections (a) and (b),22 "the
sentence for the instant offense shall be imposed to run
consecutively to the prior undischarged term of imprisonment to the
extent necessary to achieve a reasonable incremental punishment for
the instant offense." U.S.S.G. § 5G1.3(c), p.s. The commentary to
this section, application note 3, provides that "to the extent
practicable, the court should consider a reasonable incremental
penalty to be a sentence for the instant offense that results in a
combined sentence of imprisonment that approximates the total
punishment that would have been imposed . . . had all of the
offenses been federal offenses for which sentences were being
imposed at the same time."
Although the district court has the ultimate discretion
to impose a sentence consecutively, see United States v. Bell, 46
F.3d 442, 446 (5th Cir. 1995), it is required to consider the
applicable sentencing guidelines and policy statements. See 18
U.S.C. §§ 3584(a), (b); 18 U.S.C. §§ 3553(a)(4), (5); United States
v. Parks, 924 F.2d 68, 72 (5th Cir. 1991). In addition, the
Supreme Court has held that commentary that interprets or explains
22
Subsection (a) applies where the defendant committed the instant offense
while serving an undischarged term of imprisonment and subsection (b) applies where
the conduct resulting in the undischarged term of imprisonment has been taken into
account under the relevant conduct provision in determining the offense level for
the instant offense. Appellant and appellee agree that subsections (a) and (b) did
not apply in the present case.
28
a guideline is authoritative. Stinson v. United States, -- U.S.--,
113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993). In United States
v. Hernandez, -- F.3d --, 1995 WL 509345 (5th Cir. 1995), this
Court held that a sentencing court is bound to consider § 5G1.3(c)
as well as the implications of the methodology suggested by
application note 3. "[T]he district court must consider the
suggested methodology before determining whether a sentence should
run consecutively or concurrently." Id. at *3. The judgment
entered by the district court, quoted above, clearly reflects that
it considered both § 5G1.3(c) and the commentary to that section.
Krout argues, however, that the district court's failure
to apply the methodology provided by the commentary to § 5G1.3(c)
was error. We cannot agree. As we noted in Torrez,
the methodology proposed by note 3 is permissive only.
The specific formula . . . is conspicuously preceded by
the language "[t]o the extent practicable, the court
should consider . . . ." This language denotes merely
one possible manner of determining the appropriate
incremental penalty. Thus, even if the district court
had considered this provision, it would have been free to
decline to follow the suggested methodology. In other
words, the district court would not have violated this
provision if it had considered it and then determined
that imposing the sentence consecutively provided the
appropriate incremental punishment.
40 F.3d at 87 (internal citation omitted). In Hernandez, this
Court held that the suggested methodology is advisory only. 1995
WL 509345 at *3. Therefore, failure to apply the methodology
provided cannot constitute error.
Krout also argues that the reasons given by the district
court for imposing the sentence consecutively were insufficient to
justify that decision in light of the policy concerns underlying §
29
5G1.3. In Hernandez, we held that "[i]f the district court chooses
not to follow the methodology, it must explain why the calculated
sentence would be impracticable in that case or the reasons for
using an alternate method. Thereafter, the district court is left
with discretion to impose a sentence which it believes provides an
appropriate incremental punishment." Id. (internal citations
omitted).
Although it is not clear from the district court's judgment
why it did not follow the recommended methodology or why it used an
alternate method, it is clear that the district court considered
the relevant commentary and, with reasons, decided on what it
believed to be an appropriate incremental penalty. We need not
decide whether under Hernandez the district court's reasons were
insufficient because any error in the district court's judgment
could not be considered so "clear" or "obvious" as to be deemed
"plain" error.23
C. Arce
This court reviews the court's denial of a motion for
severance or a motion for continuance for abuse of discretion.
United States v. Dilman, 15 F.3d 384, 393-94 (5th Cir.), cert.
denied, 115 S. Ct. 183 (1994)(severance); United States v. Kelly,
973 F.2d 1145, 1147-48 (5th Cir. 1992)(continuance). Denial of an
eleventh hour or mid-trial motion for a continuance - even when an
attorney unfamiliar with the case must take over representation of
23
We are not saying that the reasons articulated by the District Court
would not be proper justification for the imposition of a consecutive sentence under
the Hernandez mandated methodology.
30
a defendant- is not an abuse of discretion. See United States v.
Mitchell, 777 F.2d 248, 255 (5th Cir. 1985), cert. denied, 475 U.S.
1096 (1986). Arce seeks to establish the requisite "specific and
compelling" or "serious" prejudice based upon the ineffective
assistance of counsel he received from his first attorney Harrison
and based upon Harrison's absences from trial, which allegedly
denied him counsel altogether.
This court, however, will not address ineffective
assistance of counsel claims on direct appeal except in unusual
cases. United States v. Higdon, 832 F.2d 312, 313-314 (5th Cir.
1987), cert. denied, 484 U.S. 1075 (1988). Only in that rare
instance where the details of the attorney's conduct are "well
developed" in the record is such a claim properly considered on
direct appeal." Id. at 314. Because the record is not definitive
about when Harrison's absences were covered by Langlois, we defer
to the usual vehicle for resolution of a Sixth Amendment claim, a
section 2255 motion.
Finally, to the extent that Arce attempts to find an
abuse of discretion in the district court's denial of his motion
that is not grounded in effective assistance of counsel, the
district court's careful and extended reasoning easily suffices to
reject the attack.
V. Sentencing Challenges
We have specifically considered each appellant's
challenge to the sentence imposed and reject all of their attacks;
31
every appellant was properly sentenced or the error claimed was
harmless.
CONCLUSION
Having carefully reviewed the contentions advanced by the
appellants, we find no reversible error of fact or law.
AFFIRMED.
32