U.S. v. Aguirre, 95-2068
| Decision Date | 11 March 1997 |
| Docket Number | No. 95-2068,95-2068 |
| Citation | 108 F.3d 1284 |
| Parties | 97 CJ C.A.R. 369 UNITED STATES of America, Plaintiff-Appellee, v. Eleno AGUIRRE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles L. Barth, Assistant United States Attorney (John J. Kelley, United States Attorney, Laura Fashing, Special Assistant United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
Brenda G. Grantland, Mill Valley, California, for Defendant-Appellant.
Before BALDOCK and BRORBY, Circuit Judges, and DANIEL, * District Judge.
A New Mexico federal jury convicted Eleno Aguirre on four counts in a multi-defendant, multi-count indictment, and the United States District Court for the District of New Mexico sentenced Mr. Aguirre to a term of 235 months imprisonment. Mr. Aguirre now appeals his convictions. We exercise jurisdiction over Mr. Aguirre's appeal pursuant to 28 U.S.C. § 1291 (1994).
Gabriel Rodriguez-Aguirre managed a family-run organization ("the Aguirre 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. Defendant Eleno Aguirre, the brother of Gabriel Rodriguez-Aguirre, was involved in the Aguirre organization.
On October 20, 1992, a federal grand jury in the District of New Mexico returned a twenty-three count indictment against Mr. Aguirre and twenty-one other defendants, including Mr. Rodriguez-Aguirre. The bill of indictment charged Mr. Aguirre with conspiracy to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841 (1994), and conducting a financial transaction with illicit proceeds with knowledge the transaction was designed to avoid federal reporting requirements, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(ii) and 2 (Supp.1996). Mr. Aguirre pled not guilty to the charges against him, and proceeded to trial with his co-defendants in January 1994.
The original trial of Mr. Aguirre and his 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 Mr. Aguirre objected to the mistrial.
In August 1994, the United States obtained a superseding indictment against Mr. Aguirre and nine of his co-defendants. In addition to the charges included in the original indictment, the superseding indictment contained additional charges against Mr. Aguirre. Count II charged Mr. Aguirre with conspiracy to possess with the intent to distribute cocaine, and conspiracy to distribute cocaine. Count XIII charged Mr. Aguirre with receiving income from the distribution of controlled substances and investing this income in the E & J Lounge, in violation of 21 U.S.C. § 854 (1994). Count XVII charged Mr. Aguirre with possession with the intent to distribute more than five kilograms of cocaine.
The United States retried Mr. Aguirre and his 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 the remaining jurors sua sponte after reviewing the juror questionnaires; the court directed only 115 jurors to report for jury service. Six days prior to the start of trial, defense counsel were provided copies of the jury questionnaires for the panel that had been selected for service and learned that the court had excused the remaining jurors.
On the first day of trial, prior to jury selection, defendant Gabriel Rodriguez-Aguirre filed a motion to stay the proceedings, and defendant David Morales filed a motion to quash the jury venire 1. The motions alleged the jury venire panel 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). Mr. Kennedy argued Calabrese stood for the proposition that reversible error exists once a court excludes 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 at which 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 that 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 jurors were not directed to list their ethnicity on the questionnaire forms.
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.
Following a one month trial, the jury returned a verdict against Mr. Aguirre on all four counts the United States charged him with in the superseding indictment. Thereafter, Ms. Sonia Gallegos, Mr. Aguirre's co-defendant who was also convicted, filed a motion for a new trial. Mr. Aguirre adopted Ms. Gallegos' motion for a new trial pursuant to the district court's standing order that "anything that anybody files the others adopt." Mr. Aguirre argued, inter alia, he was entitled to a new trial because of jury misconduct. Mr. Aguirre attached an affidavit from defense investigator Kelly Owens to his motion. Mr. Owens testified that following the trial, he questioned nine of the twelve jurors who convicted the defendants. Mr. Owens stated that one of the jurors, Linda Howard, admitted looking up the dictionary definition of the word "distribution" on the evening after the first day of deliberations and orally sharing its definition with the other jurors on the following day. According to Mr. Owens, Ms. Howard stated the juror's discussed the meaning of "distribution" as it related to the guilt or innocence of Ms. Gallegos. Mr. Owens also testified juror Ronnie Warmuth claimed he had knowledge of another juror researching the dictionary definition of the word "hypothecate." 2 In his post-trial motion, Mr. Aguirre contended this improper juror conduct prejudiced him and entitled him to a new trial.
The district court denied Mr. Aguirre's motion for a new trial, rejecting the defendants' claim of jury misconduct. The court concluded the word distribution was one of common usage, and there was no indication any of the jurors relied upon its dictionary definition or that it "made any difference at all in the jury deliberations."
At sentencing, the district court determined Mr. Aguirre had an offense level of 38, a criminal history category of I, and a sentencing range of 235 to 293 months. The court sentenced Mr. Aguirre to a term of 235 months imprisonment on Counts II, XII and XVII. As to Count XIII, the district court sentenced Mr. Aguirre to a term of 120 months, to run concurrently with the 235 month sentence.
Mr. Aguirre raises three issues on appeal: (1) whether the district court's dismissal of over 100 jurors, off the record, and outside the presence of the defendants and counsel, violated Mr. Aguirre's constitutional rights and his rights under the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1878 (1994); (2) whether the district court abused its discretion in failing to grant Mr. Aguirre a new trial based upon the jury's misconduct in looking up the dictionary definitions of certain words; and (3) whether the superseding indictment filed after the mistrial should have been dismissed on grounds of prosecutorial vindictiveness. 3
Mr. Aguirre first contends the district court's excusal of over half of the original jury panel, off the record and outside the presence of the defendants and counsel, violated the Jury Selection and Service Act and his constitutional rights under the Fifth and Sixth Amendments. 28 U.S.C. § 1867(d...
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