U.S. v. Ovalle

Decision Date22 April 1998
Docket Number94-2044 and 94-2100,94-2263,Nos. 94-1566,s. 94-1566
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alexander OVALLE (94-1566); John Ovalle, Jr. (94-2044); Benito S. Canales (94-2100); Nicholas A. Garcia (94-2263), Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

David Debold (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Robert O. Switzer (argued and briefed), San Antonio, TX, for Defendant-Appellant Alexander Ovalle.

Rodney J. O'Farrell (argued and briefed), Saginaw, MI, for Defendant-Appellant John Ovalle, Jr.

Louis W. Correa (argued and briefed), Phillip R. Spicer, Jr. (briefed), Taylor, Holiner & Spicer, San Antonio, TX, for Defendant-Appellant Benito S. Canales.

David C. Thomas (argued and briefed), Chicago, IL, for Defendant-Appellant Nicholas A. Garcia.

Before: GUY, MOORE, and COLE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

Defendants-Appellants Alexander ("Alex") Ovalle, John Ovalle, Jr., Benito S. Canales, and Nicholas A. Garcia appeal their convictions on one count each of conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a), (c), 846. Canales and Garcia also appeal their sentences. The appellants have raised a variety of challenges both to the evidence obtained by the police and the basis for their arrests. They have also challenged the selection of the grand jury that indicted them and the petit jury that convicted them. We will address only the jury selection claims as we find those determinative of the appellants' appeals.

I. THE CRIMINAL ACTIVITY

The appellants were indicted with five other codefendants for involvement in a conspiracy to transport marijuana from Mexico to Texas, and then to other areas in North America, including Michigan. The prosecution presented evidence to show that the conspirators used tractor-trailers with hidden compartments to transport large quantities of marijuana and cash.

In late November and early December 1992, police officers in Saginaw, Michigan set up surveillance of an hotel room occupied by Alexander Ovalle and Benito Canales. On December 2, based in part on bits of conversation overheard by the officers, the police pulled over a Chevrolet Suburban occupied by Ovalle, Canales, Nicholas Garcia, Cruz Rodriguez, and Orville Dale Irwin. Each was patted down, handcuffed, and placed in a police car. The Suburban was later searched, yielding no drugs, but large quantities of cash, some of it wrapped in cellophane, some in a sock soaked with perfume, papers, power tools, and a large scale. The police later searched a tractor-trailer parked at a hotel in Birch Run and found three thousand pounds of marijuana in a hidden compartment. John Ovalle, Jr., who lived in Saginaw (the other defendants lived in Texas) and is Alex Ovalle's uncle, was arrested eight days later.

The appellants were indicted along with Rodriguez and four other alleged co-conspirators. The other four resolved the charges against them before trial, and several of them testified at the trial with regard to their involvement in the conspiracy. Rodriguez was acquitted, while the appellants were convicted. John Ovalle, Jr. was sentenced to over thirty years in prison, and his nephew Alex was sentenced to seventeen years. Garcia and Canales received life sentences.

II. THE JURY SELECTION PLAN

The appellants 1 contend that the administration of the Jury Selection Plan for the Eastern District of Michigan violates the Jury Selection and Service Act, 28 U.S.C. § 1861, et seq., their Sixth Amendment right to a jury representing a fair cross section of the community, and their right to equal protection under the laws as guaranteed by the Fifth Amendment Due Process Clause. 2

Much of the focus on the appellants' objections to the jury selection process has been on the question of whether Hispanics were unconstitutionally underrepresented in the jury wheel in violation of the appellants' rights to a jury drawn from a fair cross section of the community and their right to equal protection. What has received less attention is what we now determine to be the controlling issue in this case: that in an effort to assure that African-Americans are fairly represented in the qualified jury wheel, one in five non-African-Americans were selected at random to be removed from the jury wheel simply because of their racial status. See J.A. at 784-85 (92-AO-080 (requiring 877 White and Other Qualified Jurors to be removed randomly from the qualified jury wheel for Bay City)). We turn now to the administration of the jury selection plan in the Eastern District of Michigan.

On February 3, 1992, the judges of the United States District Court for the Eastern District of Michigan approved a Jury Selection Plan. See 92-AO-035. The purpose of the plan was to select grand and petit juries at random from a fair cross section of the community, and to assure that all citizens would have the opportunity to be considered for service on those juries. See 92-AO-035. The plan was subsequently approved by the Judicial Council of the Sixth Circuit on April 1, 1992. See 92-AO-035. Section VIII. B. of the Jury Selection Plan called for a "subtraction" method of balancing the jury wheel to ensure proportional representation of different cognizable groups in the community, whereby:

[t]he qualified jury wheel shall be composed of persons who represent a fair cross-section of the area of each place of holding court as set forth in Section III of this Plan. To this end, if the Court determines that a cognizable group of persons is substantially overrepresented in the qualified jury wheel, the Chief Judge shall order the Clerk to remove randomly a specific number of names so that the population of each cognizable group in the qualified wheel closely approximates the percentage of the population of each group in the area of each place of holding court, according to the most recently published national census report.

92-AO-035. 3 Several administrative orders were issued to implement the Jury Selection Plan, including the one in question in this case, 92-AO-080, filed on November 17, 1992.

Administrative Order 92-AO-080, signed by the chief judge of the district court, provided in pertinent part:

IT APPEARING THAT the Black population, as reported in the 1990 census for the 21 counties for which the place of holding court is Bay City, is 4.2%, and

IT FURTHER APPEARING THAT, as of November 4, 1992, the percentage of qualified Black jurors in the Bay City wheel created in 1992 is 3.45%,

NOW, THEREFORE, IT IS ORDERED THAT, based on the information on the attached "Worksheet for the Removal of Jurors from the Qualified Bay City Jury Wheel," the Clerk of the Court shall remove by a random process the names of 877 White and Other Qualified Jurors from the 4,829 total qualified jurors in the 1992 wheel to bring it into compliance with the cognizable group requirements of Section VIII. B. of the Jury Selection Plan, approved on April 1, 1992, and the policy of the Court. As a result of this procedure, the 1992 qualified Bay City wheel shall be composed of 166 Black qualified jurors and 3,786 White and Other qualified jurors. A quotient of 5 and a starting number of 4 shall be used for the removal procedure.

J.A. at 784 (92-AO-080).

To understand fully the impact of the administrative order, it is necessary to review the procedures for establishing the qualified jury wheel in the Eastern District of Michigan. First, the district court gathers source lists, which include the voters' registration lists from the various cities, townships, and villages that make up the voting precincts within the Eastern District, and the drivers' license lists for the same area from the Michigan Secretary of State's office. Next, names are randomly selected from the source lists for the district's master jury wheel. Jury questionnaires are then sent to the individuals whose names were drawn from the master wheel to determine whether an individual is qualified for jury service. One of the questions regards an individual's race. The question reads as follows:

10. RACE

TO ASSIST IN ENSURING THAT ALL PEOPLE ARE REPRESENTED ON JURIES, PLEASE INDICATE WHICH OF THE FOLLOWING APPLIES TO YOU. NOTHING DISCLOSED WILL AFFECT YOUR SELECTION FOR JURY DUTY (SEE NOTE 10 ON REVERSE)

[ ] BLACK [ ] AMERICAN INDIAN

[ ] WHITE [ ] ASIAN

[ ] OTHER (SPECIFY) ___________________

Are you Hispanic? [ ] Yes [ ] No

J.A. at 501 (Questionnaire). On the reverse side of the form, the explanatory comments for question 10 read:

Question 10--RACE. Federal law requires you as a prospective juror to indicate your race. This answer is required solely to avoid discrimination in juror selection and has absolutely no bearing on qualifications for jury service. By answering this question you help the federal court check and observe the juror selection process so that discrimination cannot occur. In this way the federal court can fulfill the policy of the United States which is to provide jurors who are randomly selected from a fair cross section of the community.

J.A. at 502 (Questionnaire).

During the relevant time period for this case, the responses to the questionnaire were opened and sorted upon receipt. If certain information was missing, the card was sent back to the candidate to be completed. Specifically, if the individual failed to indicate his or her race on the questionnaire, the card was returned. See J.A. at 1198-99 (Schmidt Test. at 63-64). 4 Evidence in the record also indicated that the court administrator considered the only cognizable group warranting any adjustment to be African-Americans, and that there had never been an adjustment for any other group. See Schmidt Test. at 67-69 (R. 549).

Well prior to voir dire examinations, appellant Canales filed a motion on April 20, 1993 for...

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