141 F.3d 1399 (10th Cir. 1998), 97-2235, United States v. Gault

Docket Nº:97-2235.
Citation:141 F.3d 1399
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Anthony GAULT, Defendant-Appellant.
Case Date:April 16, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1399

141 F.3d 1399 (10th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,


Anthony GAULT, Defendant-Appellant.

No. 97-2235.

United States Court of Appeals, Tenth Circuit

April 16, 1998

Page 1400

J. Miles Hanisee, Asst. U.S. Atty. (John J. Kelly, U.S. Atty.; Charles L. Barth, Asst. U.S. Atty., with him on brief), Albuquerque, NM, for Plaintiff-Appellee.

Joseph W. Gandert, Asst. Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

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Before BALDOCK, BARRETT, and LOGAN, Circuit Judges.

BALDOCK, Circuit Judge.

On March 18, 1997, a jury convicted Defendant Anthony Gault of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and aiding and abetting, in violation of 18 U.S.C. § 2. Defendant was sentenced to 210 months imprisonment and five years of supervised release. Defendant raises three issues on appeal. First, Defendant argues that the use of voter registration lists as the source of jury venires in the United States District Court for the District of New Mexico violates the Fifth Amendment equal protection clause and the Sixth Amendment right to a representative jury. Second, Defendant argues that the district court erroneously limited the cross-examination of a government witness. Third, Defendant argues that the district court erred in refusing to grant his request for a base offense level reduction pursuant to § 3B1.2 of the United States Sentencing Guidelines (hereinafter "U.S.S.G."). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. For the reasons set forth below, we affirm.


The background of this case is set forth in United States v. Gault, 92 F.3d 990 (10th Cir.1996), and need not be repeated here. We include only those facts relevant to the issues presented in this appeal. On April 3, 1996, a DEA agent boarded an Amtrak train in Albuquerque, New Mexico. The agent noticed a nylon carry-on bag on the floor in front of aisle seat number 29. After kicking the bag and lifting it to determine its weight, the agent sniffed it and detected the odor of ether, which is used in the manufacture of phencyclidine ("PCP"). When Defendant reboarded the train and sat down in seat number 29, the agent approached him and asked for consent to search the bag. When Defendant refused to consent to a search, the agent detained the bag. The agent then obtained a search warrant and discovered that the bag contained six whiskey bottles filled with PCP. 1 Defendant was subsequently arrested when the train stopped in Las Vegas, New Mexico.


Defendant challenges the jury selection system in the federal district courts in New Mexico, arguing that the use of voter registration lists to select jury panels has systematically excluded Hispanics, Native Americans, and African Americans from jury service, in violation of the Fifth and Sixth Amendments. We disagree.

On December 9, 1996, after a jury had been chosen, but before the jury was sworn, Defendant moved to dismiss the jury panel. Defendant sought to challenge the constitutionality of the jury selection process in the Albuquerque/Santa Fe Division of the United States District Court for the District of New Mexico ("the District"). 2 The district court dismissed the jury and ordered briefing on the issue. In lieu of an evidentiary hearing, the parties requested permission to submit transcripts of testimony from a November 26-27, 1996, hearing held before the Honorable Martha Vazquez, during which evidence was presented in the case of United States v. Cesar Gonzales, No. 95-0538 (D.N.M.), regarding the constitutionality of the District's jury selection plan. After considering the material presented by the parties, the district court, in a thorough and well-reasoned opinion, United States v. Gault, 973 F.Supp. 1309 (D.N.M.1997), concluded that the District's jury selection process was constitutional. We review the district court's findings for clear error. United States v. Contreras, 108 F.3d 1255, 1268 (10th Cir.1997).

In 1968, the District, in compliance with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, adopted a "Plan for Random Selection of Jurors." The plan provides for the selection of prospective jurors

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through voter registration lists. Under the plan, the Clerk of the Court determines the number of jurors needed for a particular division of the District. Jurors are then randomly selected from the voter registration lists from the counties in the division. Those names are placed on a "Master Juror Wheel." Each of the individuals on the "Master Juror Wheel" receives a juror qualification...

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