108 F.3d 1255 (10th Cir. 1997), 95-2070, United States v. Contreras

Docket Nº:95-2070 & 95-2126.
Citation:108 F.3d 1255
Party Name:UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant, v. Doloras CONTRERAS, Defendant-Appellant and Cross-Appellee.
Case Date:March 11, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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108 F.3d 1255 (10th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee and Cross-Appellant,


Doloras CONTRERAS, Defendant-Appellant and Cross-Appellee.

Nos. 95-2070 & 95-2126.

United States Court of Appeals, Tenth Circuit

March 11, 1997

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Charles L. Barth (John J. Kelly, United States Attorney, with him on the briefs), Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee and Cross-Appellant.

Vicki Mandell-King, Michael Gordon Katz, Federal Public Defender, with her on the briefs, Assistant Federal Public Defender for the Districts of Colorado and Wyoming, for Defendant-Appellant and Cross-Appellee.

Before BALDOCK, and BRORBY, Circuit Judges, and DANIEL, [*] District Judge.

BRORBY, Circuit Judge.

Doloras Contreras was convicted in the United States District Court for the District of New Mexico on four counts in a multi-defendant, multi-count indictment. The trial court departed downward from the United States Sentencing Guidelines and sentenced Ms. Contreras to a 120-month term of imprisonment. Ms. Contreras appeals her conviction, and the United States appeals the trial court's decision to depart downward. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.


Gabriel Rodriguez-Aguirre ("Mr.Aguirre") managed a family-run organization specializing in the sale and distribution of large amounts of marijuana and cocaine. United States v. Denogean, 79 F.3d 1010, 1011 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 154, 136 L.Ed.2d 99 (1996). "Between 1984 and 1992, the ... organization sold more than 20,000 pounds of marijuana and over 20,000 pounds of cocaine to narcotics traffickers in New Mexico, Arizona, Utah, Kansas, Massachusetts, and elsewhere throughout the United States." Id.The organization used narcotics proceeds to purchase real property and other assets. Id.

Doloras Contreras is the daughter of Mr. Aguirre. From December 1986 until October 1992, Ms. Contreras lived at a residence located in Phoenix, Arizona. During this time, Ms. Contreras used her residence to

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store large amounts of marijuana, cocaine, and United States currency derived from the sale of controlled substances. Ms. Contreras participated in the possession and conspiracy to distribute at least 3,080 pounds of cocaine and was involved in laundering $365,400.00 of illegally-derived currency.

On October 19, 1992, the United States filed a civil complaint for forfeiture of property in the District of New Mexico entitled United States v. Fifty-One Items of Real Property, etc., No. CIV 92-1155-JC. Although Ms. Contreras was one of the named claimants, she never filed a claim or answer. Consequently, the United States District Court entered a partial default judgment against Ms. Contreras and others named in the civil forfeiture complaint.

The United States filed another civil forfeiture action against Ms. Contreras in January 1993 entitled United States v. 247 Horses, No. CIV 93-0102-JC. Once again, Ms. Contreras did not file a claim or answer, and the court entered a partial default judgment against Ms. Contreras.

On October 20, 1992, the United States charged Ms. Contreras and twenty-one others, including Mr. Aguirre, in a bill of indictment filed in the District of New Mexico. The twenty-three count bill of indictment charged Ms. Contreras with conspiracy to distribute more than 100 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (1994), and three counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) (Supp.1996). The United States based the money laundering counts on purchases of a residence in Glendale, Arizona, a Nissan Pathfinder automobile at Lou Grubb Chevrolet, and eleven horses. Ms. Contreras pled not guilty to the charges against her and proceeded to trial with her co-defendants in January 1994.

The original trial of Ms. Contreras and her co-defendants lasted six months, becoming "the longest federal criminal trial ever held in the District of New Mexico." United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024 (10th Cir.1996). After deliberating for more than six weeks, the jury was unable to reach a verdict on the majority of counts, and the trial judge declared a mistrial. Id. Neither the United States nor counsel for Ms. Contreras objected to the mistrial.

In August 1994, the United States obtained a superseding indictment against Ms. Contreras and nine of her co-defendants. In addition to the charges included in the original indictment, the superseding indictment contained additional charges against Ms. Contreras. Count II charged Ms. Contreras with conspiracy to possess with the intent to distribute cocaine, and conspiracy to distribute cocaine. Count XIX charged Ms. Contreras with receiving income from the distribution of controlled substances, and investing this income in Amador Investors, 1 in violation of 21 U.S.C. § 854 (1994). Although Ms. Contreras moved to dismiss the superseding indictment due to vindictive prosecution, the trial court summarily denied her motion.

The United States retried Ms. Contreras and her co-defendants in November and December 1994. Prior to trial, the court randomly selected a jury panel of approximately 250 jurors at random from voter registration lists for the Roswell Division of the District of New Mexico. The district judge excused 132 jurors sua sponte after individually reviewing the juror questionnaires; the court directed only 115 jurors to report for jury service. Six days prior to trial, defense counsel were provided copies of juror questionnaires for the panel that had been selected for service, and defense counsel learned the court had excused the remaining jurors.

On the first day of trial, prior to jury selection, Mr. Aguirre filed a motion to stay the proceedings, and defendant David Morales filed a motion to quash the jury venire. 2 The motions alleged the jury venire panel

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seriously misrepresented the ethnic makeup of the District of New Mexico. Specifically, the defendants claimed persons of Hispanic origin and American Indian background were underrepresented. The defendants sought a stay of the trial to allow time for an investigation of the ethnic background of all the jurors. In addition, Mr. Morales' counsel, Paul Kennedy, advised the court orally of United States v. Calabrese, 942 F.2d 218 (3d Cir.1991), which Mr. Kennedy claimed stood for the proposition that it is reversible error for a court to exclude a juror prior to voir dire "simply because a juror knows a defendant." Mr. Kennedy claimed it appeared the court had excused at least one juror because the juror stated he or she knew one of the defendants.

Following Mr. Kennedy's comments, the court held an evidentiary hearing and Nancy Metzger, jury administrator for the Federal Court Clerk's office, testified. Ms. Metzger stated the jury panel of approximately 250 jurors had been selected at random from voter registration lists. Ms. Metzger testified the district judge reviewed the juror questionnaires and directed her to excuse more than 100 specific jurors. Ms. Metzger stated she did not know the ethnicity of either the excused jurors or the jurors who had reported for service.

The court then stated it had reviewed the individual juror questionnaires and "retained the stack of those who, for some reason or other, claimed that they couldn't serve." The court explained:

I think it goes without saying that the ones that were not summoned, I never looked at the last name, whether it was [a] Hispanic surname or whether it was not a Hispanic surname, or whether they were American Indians or not. As a matter of fact, I'm not real sure that that's part of the questionnaire--

Ms. Metzger confirmed the questionnaire forms did not direct the jurors to provide their ethnicity.

The district court denied the defendants' motion to stay the proceedings and the defendants' motion to quash the jury venire. However, the court allowed the defendants to supplement the record within ten days of the completion of the trial with information concerning the racial composition of the District of New Mexico and the Roswell Division. None of the defendants chose to supplement the record with such information.

The trial of Ms. Contreras and her co-defendants lasted approximately one month. On December 15, 1994, the jury returned a verdict against Ms. Contreras on four counts--conspiracy, investment of illicit drug profits, and two counts of money laundering. At sentencing, the trial court adopted the factual findings and guideline application in Ms. Contreras' presentence report. Thus, the court determined Ms. Contreras had a base offense level of 38, a criminal history category of I, and a guideline range of 235 to 293 months. Nevertheless, the court found Ms. Contreras' guideline range to be substantially higher than that applied to co-defendant Paula Denogean, who the court concluded "was at least equally or maybe even ... more culpable than [Ms. Contreras]." 3 To avoid an "unwarranted disparity of sentences," the court granted Ms. Contreras' motion for a downward departure and sentenced Ms. Contreras to 120 months based upon an adjusted base offense level of 31 and a sentencing range of 108-135 months.


Ms. Contreras' appeal raises four issues: (1) whether the United States obtained her criminal convictions in violation of the Fifth Amendment's protection against double jeopardy; (2) whether the superseding indictment filed after the mistrial should have been dismissed on grounds of prosecutorial...

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