U.S. v. Pion

• Citation: 25 F.3d 18
• Decision Date: 06 January 1994
• Docket Number: No. 93-1193,93-1193
• Parties: UNITED STATES of America, Appellee, v. Rene M. PION, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 18

25 F.3d 18

UNITED STATES of America, Appellee, v. Rene M. PION, Defendant, Appellant.

No. 93-1193.

United States Court of Appeals, First Circuit.

Heard Jan. 6, 1994.

Decided June 1, 1994.

Benjamin D. Entine, Salem, MA, for appellant.

Geoffrey E. Hobart, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., and George W. Vien, Asst. U.S. Atty., Boston, MA, were on brief for appellee.

Before TORRUELLA, Circuit Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

After a two-week trial, Rene Pion was convicted on three cocaine-related charges and sentenced to concurrent mandatory minimum ten-year prison terms, pursuant to 21 U.S.C. Sec. 841(b)(1)(A)(ii). ¹ We address each of Pion's appellate claims.

A. Entrapment

Without challenging the jury instruction on entrapment, Pion contends that the evidence compelled jury acceptance of his entrapment defense. We therefore inquire whether a rational jury could have found, beyond a reasonable doubt, either that he was predisposed to commit the particular crime charged or that the government did not induce him to commit it. Jacobson v. United States, --- U.S. ----, ----, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992); United States v. Reed, 977 F.2d 14, 18 (1st Cir.1992). Viewed in the light most favorable to the verdict, United States v. Martinez, 922 F.2d 914, 923 (1st Cir.1991), there was ample evidence that Pion was not induced to commit any crime.

The only inducement to which he points on appeal is that the government informant, Esteban Mendoza, plied and enticed him with a "vital" supply of El Presidente beer for resale at Pion's restaurant. According to Pion, the government thus subjected him to "rigid economic coercion" to traffick in cocaine. Not only was this fanciful claim not preserved below, it is squarely contradicted by his testimony at trial. Additionally, the El Presidente beer Mendoza supplied Pion totalled nine cases; none of it delivered until more than two weeks after he unhesitatingly indicated his willingness to supply Mendoza with the first one-half kilogram of cocaine. Thereafter, Pion participated in a three-kilogram transaction (and agreed to arrange another three kilograms) with no inducement except the implicit "promise" of cocaine profits. Thus, the record reveals ample support for a jury finding that Pion was no "unwary innocent" but an " 'unwary criminal' who readily availed himself of the opportunity to perpetrate the crime." Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988).

B. Coconspirator Statements

Pion claims that the district court committed reversible error by admitting into evidence coconspirator statements pertaining to two separate conspiracies: the first involving a one-half kilogram transaction on June 4, 1991; the second a three-kilogram transaction on July 3. ² According to Pion, the only possible link between the two transactions was the red Honda automobile driven on June 4 by coconspirator "Rafael," purportedly Pion's cocaine supplier, and by coconspirator Christobalina Tejada on July 3. Since Pion does not suggest that the district court departed from the procedure required under United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977), and United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980), we review the conspiracy finding for clear error, United States v. McCarthy, 961 F.2d 972, 977 (1st Cir.1992). We find none.

The government quite correctly suggests that the red Honda, registered to Tejada, was the "most obvious piece of circumstantial evidence" linking the two transactions to the same conspiracy. Equally conspicuous, however, yet overlooked by Pion, were the three participants common to both transactions, notably himself, "Rafael" and Tejada, and their tacit agreement to traffick in cocaine. Nothing more was required.

C. The Transcripts

Without identifying the translations at issue, Pion challenges, as ambiguous and inaccurate, government transcripts containing English translations of Spanish conversations recorded by Mendoza, the government informant, during various meetings with Pion and other conspirators. Since Pion did not argue before the district court that the transcripts were ambiguous, we review only for plain error. See United States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir.1987); Fed.R.Crim.P. 52(b).

Even though Pion's failure to identify the challenged statements severely hinders review, especially since the transcripts are not included in the appellate record, see Fed.R.App.P. 10(b), 11(a), we can say with confidence that there was no error, plain or otherwise. The thrust of this contention is that the transcripts are susceptible to two radically different interpretations: one innocent (the recorded conversations merely concerned beer); the other criminal (cocaine trafficking). The record precludes any suggestion of error based on this newly minted theory, as the evidence (including Pion's testimony) and the recorded conversations themselves established beyond doubt that beer was simply the means Mendoza used to gain access to Pion.

The district court correctly followed the transcript-admission procedure set out in United States v. Rengifo, 789 F.2d 975 (1st Cir.1986), by first attempting, without success, to obtain a stipulated transcript. See id. at 983. After Pion objected to alleged inaccuracies in the authenticated government transcript, he consented to its admission subject to the right to introduce his own transcript. The court thereupon admitted the government transcript and gave a cautionary jury instruction. Notwithstanding the fact that the court recognized his right to do so, Pion did not offer his own transcript. Later, Pion objected when the government attempted to read portions of its transcript to the jury. The court treated the objection as a motion to strike, and denied it.

There was no abuse of discretion. United States v. Font-Ramirez, 944 F.2d 42, 48 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 954, 117 L.Ed.2d 122 (1992) (no "abuse of discretion" where defendant neither offered transcript nor indicated specific inaccuracies in government transcript); accord United States v. Devous, 764 F.2d 1349, 1355 (10th Cir.1985).

D. Juror Misconduct

The district court's decision to conduct an in camera inquiry to resolve a report of improper juror contact was well within its broad discretion. See United States v. Reis, 788 F.2d 54, 59 (1st Cir.1986). The transcript of the in camera interview plainly reveals that the matters discussed directly pertained to whether the juror had been approached and whether he could be impartial.

E. Jury Composition

Pion claims a deprivation of his constitutional right, under the Sixth Amendment to the United States Constitution, to be tried by a petit jury drawn from a representative cross section of the community. ³ See Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). The district court accepted, arguendo, Pion's statistical data indicating that though the 1990 census reflects that 4.2% of the residents within the Eastern Division of the District of Massachusetts are Hispanic, only 0.99% of all persons responding to the juror questionnaire during 1992, and 0.80% of those appearing for juror orientation, were Hispanic. These data form the evidentiary base for Pion's sweeping claim that "Hispanic minority members are so grossly underrepresented among federal juries as to constitute a 'systematic exclusion of the group in the jury-selection process' " (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979)). The district court rejected the Pion claim on the fundamental ground that the Amended Jury Plan for the District of Massachusetts ["Jury Plan"] is as broadly inclusive as any in the nation and has been expressly approved under the Federal Courts Administration Act of 1992, codified at 28 U.S.C. Sec. 1863(b)(2) (1992). ⁴ On appeal, Pion nonetheless insists that the Jury Plan results in such substantial Hispanic underrepresentation as to render it constitutionally infirm under the "systematic exclusion" standard employed in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

The burden is on the defendant to establish a prima facie case of unconstitutional disproportionality. United States v. Benmuhar, 658 F.2d 14, 19 (1st Cir.1981). We conclude that Pion has not demonstrated that any Hispanic underrepresentation on his jury venire was due to their "systematic exclusion in the jury-selection process." Id. 439 U.S. at 366, 99 S.Ct. at 669 (emphasis added). Consequently, he has failed to establish a prima facie violation of the "fair-cross-section requirement." Id. at 364, 99 S.Ct. at 668; United States v. Hafen, 726 F.2d 21, 23 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984).

The government agrees that Hispanics constitute a distinctive ethnic group in the Eastern Division of the District of Massachusetts, thus conceding the first prong of the three-part Duren test. See Duren, 439 U.S. at 364, 99 S.Ct. at 668. The government counters, however, that Pion failed to make the two other Duren showings: that Hispanic representation on jury venires "is not fair and reasonable in relation to the number of such persons in the community" and that any such underrepresentation is "due to systematic exclusion of [Hispanics] in the jury-selection process." Id. Although both showings are problematic, we need address only the "systematic exclusion" claim.

Pion presented uncontroverted evidence indicating a 3.4% "absolute disparity" between the 4.2% Hispanic representation in the relevant general population and the 0.80% Hispanic representation among persons appearing for juror orientation. See Hafen, 726 F.2d at 24 ("absolute disparity" standard more appropriate than ...