United States v. Fernandez, 72-2088

• Decision Date: 13 May 1974
• Docket Number: 72-1408 and 72-2089.,No. 72-2088,72-2088
• Citation: 497 F.2d 730
• Parties: UNITED STATES of America, Appellee, v. Juan Ramon FERNANDEZ et al., Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

497 F.2d 730 (1974)

UNITED STATES of America, Appellee, v. Juan Ramon FERNANDEZ et al., Appellants.

Nos. 72-2088, 72-1408 and 72-2089.

United States Court of Appeals, Ninth Circuit.

May 13, 1974.

COPYRIGHT MATERIAL OMITTED

Antonio H. Rodriguez (argued), Los Angeles, Cal., T. Roger Duncan (argued), Hollywood, Cal., for appellants.

Earl E. Boyd, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Irving Prager, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Stephen Gilbert, Mexican American Legal Defense Fund (argued), Los Angeles, Cal., for amicus curiae.

Before HUFSTEDLER and WRIGHT, Circuit Judges and ENRIGHT,^* District Judge.

ENRIGHT, District Judge:

In August 1971, defendants Juan Ramon Fernandez, Alberto Ortiz and Rodolfo Pena Sanchez were arraigned and pleaded not guilty to an original three count indictment. A superseding indictment was filed September 1, 1971, charging defendants in count one with a violation of 18 U.S.C. § 371, conspiracy, in count two with a violation of 18 U.S.C. § 2114, robbery of mail, money, or other property of the United States, and in count three with a violation of 18 U.S.C. § 111, assault upon a federal officer. Defendants pleaded not guilty to all counts of the superseding indictment.

On November 15, 1971, after lengthy jury trial with a voluminous record, all defendants were found guilty as to all counts. Defendant Fernandez was sentenced to five years on count one, twenty-five years on count two, and ten years on count three, all sentences to run concurrently. Defendant Ortiz was sentenced to five years on count one and ten years on count three to run concurrently. Ortiz was sentenced to twenty-five years on count two, execution of sentence suspended, and he was placed on probation for five years to run consecutive to the term of imprisonment. Defendant Sanchez was sentenced to five years on count one, twenty-five years on count two, and ten years on count three, all terms to run consecutively.

FACTS

The government's principal witness was the victim, Robert Canales, Special Agent, Bureau of Narcotics and Dangerous Drugs (BNDD).

Canales testified that in February 1971, an inmate in the Los Angeles County Jail telephoned BNDD and indicated he wanted to talk to a BNDD agent. Canales eventually met with the inmate on July 21, 1971, and was given the telephone number of Sanchez. That same day, Canales called Sanchez and indicated that he, Canales, had been told that he could contact Sanchez if he wanted to purchase narcotics, particularly heroin. Sanchez indicated to Canales that he preferred not to converse on the telephone but suggested instead a personal meeting on the following day.

The next day at the agreed time and location, Canales, in possession of government funds, operating in an undercover capacity, and under surveillance by other BNDD agents, met with Sanchez. Negotiations ensued concerning the purchase of two ounces of heroin.

Sanchez then told Canales that they should go to his connection. The two proceeded to ride upon Canales' motorcycle to a particular parking lot. Leaving Canales on the motorcycle, Sanchez stated that he would be back in a few moments with the narcotics.

While Canales remained upon the motorcycle, Sanchez departed the area, only to return momentarily with Fernandez and Ortiz. The trio then left, but minutes later, Fernandez and Ortiz, after certain maneuverings, ran up to Canales with drawn weapons. They demanded that Canales give them all his money. Ortiz ordered Canales off the motorcycle, but Fernandez countermanded the order.

At that time Canales made a movement to get off the motorcycle. Whether the agent was making a move for cover or for his weapon is disputed. Suffice it to say, that at that moment he was shot by Fernandez and Ortiz. The wound so received caused permanent paralysis to Agent Canales.

ISSUES

The defendants presented fifteen issues on appeal. Those issues sufficiently meritorious as to deserve discussion may be divided into two categories: (a) the conduct of the trial, and (b) the legal elements of the offenses.

A. Conduct of the Trial

1. Challenge to Jury Selection. The defendants have raised several objections to the jury selection process in the Central District of California. The government, however, contends that defendants did not comply with the mandatory provisions of 28 U.S.C. § 1867 (West Supp.1974), challenging compliance with jury selection procedures. We cannot fault the government's position.

One additional comment as concerns jury challenge would be beneficial. 28 U.S.C. § 1863(b)(2) allows voter registration lists to be used, unless some other supplemental source is necessary to achieve the policies of 28 U.S.C. §§ 1861, 1862. The Central District General Order No. 55 states a conclusion that no other source is necessary. The defendants argue that the important issue is that there exists no study or evidence to support the finding of General Order No. 55. Rather, defendants assert that "common political experience" belies an assumption that voter registration lists represent a cross-section of the populace. But the defendants have the burden of showing, prima facie, discriminatory practices. Whitus v. Georgia, 385 U.S. 545, 550-551, 87 S.Ct. 643, 646-647, 17 L.Ed.2d 599 (1967); United States v. Butera, 420 F.2d 564, 569 (1st Cir. 1970). "Common political experience" is a far cry from judicial notice, not to mention statistical comparative studies as utilized in Whitus v. Butera. In short, by relying upon "common political experience," defendants would have failed to bear their burden.

2. Search of the Venire. Prior to the voir dire and selection of the jury panel, at least nine of the prospective jurors (three of whom became jury members and one an alternate) were searched for weapons by the United States Marshals responsible for courtroom security. The search of prospective jurors was curtailed shortly after it had begun and thereafter, the marshals relied upon presentation of jurors' cards.

The search was conducted in full view of the fifty member venire. It may be presumed that many veniremen knew that such procedure was not customary. For a period of five hours the potential jurors were free to discuss the implications of the search.

Prior to a noon recess, the trial judge indicated that he felt a new venire could be made available within forty-eight hours. After the recess, however, the court, desiring to impanel the jury that afternoon, denied a defense motion challenging the venire. The court stated that balancing the interests of all concerned and the possible prejudice to both sides, the impanelment should go forward. Further, the court intended to purge the prejudice by voir dire, admonition, and challenge, if any. Defense neither offered additional voir dire questions nor subsequently utilized any challenges for cause. The court questioned the panel thoroughly as to possible bias or prejudice resulting from the search.¹ Finally, the defense at one point conceded that the prejudice, if any, might be equally directed to the government as to the defendants.² Given the particular circumstances of this case, we cannot conclude that the course chosen by the trial judge was imprudent nor insufficient.

3. Prosecutorial Misconduct. The defense contends that the prosecuting attorney committed numerous acts of prejudicial misconduct. When the defendants' contentions are accumulated and concentrated within twenty-four pages, comprising one-fifth of the defense brief, they cannot be read without some sentiment that improprieties requiring reversal may have been committed. But when read in the context of a record consisting of nineteen volumes, totaling three thousand pages, the allegations of misconduct become muted. and in light of the overwhelming evidence of guilt, it may be concluded that the trial judge conducted an essentially fair and just proceeding and that the prosecution's misconduct — which did occur in several instances — was not of sufficient moment as to require reversal.³ See Favors v. Eyman, 466 F.2d 1325, 1329 (9th Cir. 1972); Taylor v. United States, 134 U.S.App.D.C. 188, 413 F.2d 1095 (1969).

4. Exclusion of Evidence of Motive. The theory of the defense case was that the defendants had met Agent Canales under the belief that he was a heroin dealer and had intended to warn him to stop dealing in drugs within the barrios. The defendants testified that they had previously taken such action, both as individuals and as members of an organization, La Casa de Carnalismo, the main goal of which was to eradicate drug traffic and addiction in the Chicano barrios.

The defendants further testified that to accomplish their goal, they and La Casa de Carnalismo, had engaged in a campaign which included counselling drug addicts to seek treatment, speaking to individual youths and to student, youth, and prison groups, as well as attempting to influence legislation. They also testified that they would not report dealers to law enforcement, for if they did so, they would be labeled informers, and their safety would be jeopardized. Finally, defendants explained that, after much deliberation, they undertook their vigilante activity, because the police were not adequately dealing with the drug problem.

The defendants urge that the trial court erred in excluding as irrelevant both expert and percipient testimony to corroborate their testimony regarding their anti-drug activities. While seventeen witnesses were excluded by the trial judge, nevertheless, he did allow the testimony of five witnesses who did corroborate the defendants' past anti-drug activity. The trial court is vested with discretion in admitting or denying motive evidence, e. g., Zamloch v. United States, 193 F.2d 889, 892 (9th Cir. 1952), and evidence, though relevant, may be excluded at the discretion of the court if its probative value is substantially outweighed by considerations of undue...