U.S.A. v. Lara

• Decision Date: 05 May 1999
• Docket Number: 97-2227,97-2223,Nos. 97-2215,97-2225,97-2226,97-2224,s. 97-2215
• Citation: 181 F.3d 183
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. GIOVANNI LARA, Defendant, Appellant.No. UNITED STATES OF AMERICA, Appellee, v. GEORGE SEPULVEDA, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. TERRENCE BOYD, Defendant, Appellant. UNITED STATES OF AMERICA,Appellee, v. SHARIFF ROMAN, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. GEORGE PERRY, Defendant, Appellant. UNITED STATES OF AMERICA, Appellee, v. ERYN VASQUEZ, Defendant, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 183

181 F.3d 183 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. GIOVANNI LARA, Defendant, Appellant.No.

UNITED STATES OF AMERICA, Appellee, v. GEORGE SEPULVEDA, Defendant, Appellant.

UNITED STATES OF AMERICA, Appellee, v. TERRENCE BOYD, Defendant, Appellant.

UNITED STATES OF AMERICA,Appellee, v. SHARIFF ROMAN, Defendant, Appellant.

UNITED STATES OF AMERICA, Appellee, v. GEORGE PERRY, Defendant, Appellant.

UNITED STATES OF AMERICA, Appellee, v. ERYN VASQUEZ, Defendant, Appellant.

Nos. 97-2215, 97-2225, 97-2223, 97-2226, 97-2224, 97-2227.

United States Court of Appeals for the First Circuit

Heard May 5, 1999

Decided July 1, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Valeriano Diviacchi, with whom Diviacchi Law Office was on brief, for appellant Lara.

Malcolm J. Barach for appellant Sepulveda.

Larry J. Ritchie, with whom Edward L. Gerstein was on brief, for appellant Boyd.

R. Scott Miller, Jr. for appellant Roman.

R. Scott Miller, Jr. with whom Richard J. Shea was on brief, for appellant Perry.

Pedro A. Jaile for appellant Vasquez.

Lisa Simotas, Attorney, Dep't of Justice, with whom Margaret E. Curran, United States Attorney, Gerard B. Sullivan, and Terrence P. Donnelly, Assistant United States Attorneys, were on brief, for the United States.

Before Selya, Circuit Judge, Kravitch,^* Senior Circuit Judge, and Lipez, Circuit Judge.

SELYA, Circuit Judge.

A federal grand jury indicted a coterie of defendants, including the six appellants (Giovanni "King G" Lara, George "King Paradise" Sepulveda, Terrence "King Bullet" Boyd, Shariff "King Biz" Roman, George "King Animal" Perry, and Eryn "King Guy" Vasquez) for a multiplicity of crimes arising out of their involvement in the Providence chapter of the Almighty Latin King Nation. Following a 44-day trial, each appellant was convicted on one or more of the following charges: racketeering, 18 U.S.C. § 1962(c); conspiracy to commit racketeering, id. § 1962(d); violent crime in aid of racketeering (including two murders and two attempted murders), id. § 1959(a)(1) & (5); carjacking, id. § 2119(3); witness intimidation, id. § 1512(b); use or carriage of a firearm during a crime of violence, id. § 924(c); and being a felon in possession of a firearm, id. § 922(g). The district court sentenced five of the appellants to life imprisonment and the sixth, Vasquez, to 100 months in prison. These appeals followed. We affirm.

I. BACKGROUND

We offer a thumbnail sketch of the interrelationship between the appellants and the Latin Kings, taking the information contained in the record in the light most congenial to the jury's verdict. See United States v. Houlihan, 92 F.3d 1271, 1277 (1st Cir. 1996). We eschew an exposition of the other evidence, preferring to discuss that evidence in the body of the opinion as it pertains to our consideration of particular points raised by the appellants.

The Latin Kings originated in Chicago in the 1940s. Over time, the street gang's influence spread to other venues. The movement migrated east to Providence in the early 1990s. Though some chapters of the Latin Kings, called Charter Nations, require Hispanic descent as a condition of membership, others (like the Providence chapter) allow persons of all races and ethnicities to join.

Members of the Latin Kings signal their affiliation by sporting beads and other accouterments (including tattoos) in the gang's colors -- black and gold. They pay dues, attend weekly meetings, and undertake "missions" (a euphemism that covers an array of activities ranging from running errands to committing violent crimes) when directed by gang leaders. Respect and security rank among the gang's paramount concerns: the Latin Kings routinely discipline members for disrespectful behavior or for discussing Latin King business with outsiders. Discipline runs a lengthy gamut from the "silent treatment" (suspension of all communications with other gang members), to revocation of drug use privileges, to a "bounce" (a time-controlled beating limited to certain areas of the body), to death.

The Almighty Latin King Nation is a hierarchical organization, and each of the appellants held one or more leadership positions within the Providence chapter. Sepulveda served as the group's president (sometimes called "Inca"). Boyd served as the vice-president (sometimes called "Cacique"), and later succeeded Sepulveda as president. Roman served as the chief enforcer (a position previously held by Lara and subsequently held by Perry), and replaced Boyd as vice-president. Vasquez functioned as the group's philosopher and then graduated to the post of investigator.

Against this backdrop, we proceed to survey the appellants' assignments of error. We start with two issues pertaining to jury selection and then treat three of the trial court's evidentiary rulings. At that juncture, we address a series of Rule 29 claims. Finally, we tackle a perceived problem with the jury instructions. To the extent that the appellants mount other claims, we reject them out of hand, without elaboration.

II. JURY SELECTION ISSUES

Most of the appellants join in two challenges related to jury selection: all save Perry argue that the jury pool was not composed of a fair cross-section of the community, and all calumnize the prosecution's use of a peremptory challenge to strike an African-American prospective juror. We find no merit in either of these assigned errors.

A. The Fair Cross-Section Claim.

The Constitution affords a criminal defendant the right to a trial "by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. This constitutional command requires that juries be selected from a representative cross-section of the community. See Duren v. Missouri, 439 U.S. 357, 358-59, 363-64 (1979); Taylor v. Louisiana, 419 U.S. 522, 528 (1975). Congress codified that requirement in the Jury Selection and Service Act, (JSSA), 28 U.S.C. § 1861. The appellants assert that the venires from which the district court selected both their grand and petit juries defied this imperative. We do not agree.

The appellants base their assertion on Rhode Island's failure to comply with the National Voter Registration Act (NVRA), 42 U.S.C. §§ 1973gg to 1973gg-10 (1994). This statute, known colloquially as the motor voter law, took effect in Rhode Island on January 1, 1995. It requires states to accept voter registration applications in tandem with applications for drivers' licences and other permits, and to establish procedures to facilitate that process. See id. §§ 1973gg-2(a), 5(a). Rhode Island has conceded that it did not fully comply with the NVRA. See League of Women Voters v. Rhode Island Bd. of Elections, No. 96-442ML (D.R.I. Sept. 12, 1996) (consent decree). Because the District of Rhode Island derives its jury wheel from the state's voter registration lists, see In re Amended Juror Selection Plan, Misc. No. 75-209 (D.R.I. Oct. 6, 1993), the appellants claim that this noncompliance rendered the District's jury venires unrepresentative and transgressed both the Sixth Amendment and the JSSA.

This claim is fully preserved with respect to the five appellants who proffer it here. Although only Sepulveda and Boyd moved to dismiss the indictment on this basis, the district court permitted Lara, Roman, and Vasquez to adopt Sepulveda's and Boyd's position.

Though preserved, the claim is unavailing. In order to establish a fair cross-section violation under either the Sixth Amendment or the JSSA, a criminal defendant must make a tripartite showing comprising cognizability (i.e., that the group alleged to be excluded is a distinctive group), underrepresentation (i.e., that the group is not fairly and reasonably represented in the venires from which juries are selected), and systematic exclusion (i.e., that the discerned under representation is due to the group's systematic exclusion from the jury-selection process). See Duren, 439 U.S. at 364; United States v. Royal, 174 F.3d 1, 6-7 (1st Cir. 1999). Assuming, arguendo, that the appellants have made the first of these three showings,¹ they plainly have failed to satisfy either the second or third part of the test. Because the Duren test is conjunctive -- the proponent of a fair cross-section claim must satisfy all three of its elements -- either of these failings suffices to defeat the instant claims.

We start with under representation. A showing of under representation must be predicated on more than mere guesswork. Such a showing requires competent proof (usually statistical in nature). See, e.g., Duren, 439 U.S. at 364-65; United States v. Pion, 25 F.3d 18, 22-23 (1st Cir. 1994); see also United States v. Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984) (considering the statistical methodologies that might be used to determine underrepresentation and selecting the absolute disparity method). The single supporting document filed in the district court in connection with the appellants' motions to dismiss was an affidavit attesting to the legislative history and purposes of the NVRA, and the genesis of the consent decree. This affidavit does not supply any foundation for a finding that the representation of Hispanic venirepersons in the District was unfair, unreasonable, or in any way disproportionate to their numbers in the community.

A successful fair cross-section claim also requires competent proof of the systematic nature of the exclusionary mechanisms leading to the under representation. See Duren, 439 U.S. at 366-67; Royal, 174 F.3d at 6-7. The supporting affidavit in this case offers no reason to believe that any systematic exclusion of Hispanics occurred in the selection process, let alone that it caused any material underrepresentation. The NVRA is addressed to heightening overall popular...