U.S. v. Saenz

Decision Date13 November 1984
Docket NumberNo. 83-2630,83-2630
Citation747 F.2d 930
Parties17 Fed. R. Evid. Serv. 517 UNITED STATES of America, Plaintiff-Appellee, v. Fidencio SAENZ, Domitilla Garza, Genoveva Garcia, and Norma Solis, Defendants- Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Ramon Garcia, Edinburg, Tex., for Saenz.

Genaro A. Garcia, Corpus Christi, Tex., (Court-appointed), for Garza.

Nancy M. Simonson, J.A. Canales, Corpus Christi, Tex., for Garcia.

Roland E. Dahlin, II, Federal Public Defender, (Court-appointed), Margorie A. Meyers, Antonio Balderas, Jr., Asst. Federal Public Defenders, Houston, Tex., for Solis.

Daniel K. Hedges, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., Robert J. Erickson, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before GARZA, REAVLEY and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Appellants Fidencio Saenz, Domitilla Garza, and Genoveva Garcia were convicted of conspiracy in violation of 42 U.S.C. Sec. 1973i(c) and 18 U.S.C. Secs. 371 and 372. 1 In addition, appellants Norma Solis, Garza, and Garcia were each convicted on one substantive count of vote buying in violation of 42 U.S.C. Sec. 1973i(c). Appellants appeal their convictions urging that the evidence is insufficient to support their convictions. They argue further that the prosecutor committed misconduct sufficient to warrant reversal, that the trial court directed the verdict of the jury as to an essential element of the offense, that various evidentiary rulings were improper, and that their conduct was not constitutionally reached under section 1973i(c). We affirm.

I. FACTS

Viewing the facts in the light most favorable to the Government, they show that the following transactions occurred. Fidencio Saenz and Gilberto Uresti were incumbent candidates for the offices of Duval County, Texas, county commissioner and county judge, respectively. Their names appeared on the May 1, 1982, Democratic Party primary election ballot.

During the month preceding the Democratic Party primary election, appellants, as well as other unindicted co-conspirators, conducted a door to door campaign. In several instances, prospective voters were offered welfare vouchers in exchange for their votes. In these instances, the prospective voters were referred to the Duval County Welfare Office. There they were issued welfare vouchers that could be redeemed for food, clothing, or medical services. The facts surrounding specific solicitations will be discussed where appropriate.

II. SUFFICIENCY OF THE EVIDENCE

In examining the appellants' attack on the sufficiency of the evidence, we must decide whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983) (footnote omitted). In doing so, we must view the evidence and the inferences that may be drawn from it in the light most favorable to the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

(a) The Evidence is Sufficient to Support the Conviction of Garza and Solis on Substantive Counts of Vote Buying

Appellant Garza was convicted of one substantive count of paying and offering to pay Elizabeth Yarberry for her vote. 2 Appellant Solis was convicted of one substantive count of paying and offering to pay Mercedes Gonzales for her vote. Garcia does not directly challenge the sufficiency of the evidence supporting her convictions on the substantive charge. 3 We affirm each conviction.

Garza's conviction rests exclusively on the testimony of Yarberry and Candula Torres. Yarberry testified that Domitilla Garza and Norma Solis came to see her before the May primary election. On their first visit, the defendants left a sample ballot on Yarberry's door. 4 Subsequently, Garza came by her house to see if she had voted. Yarberry said she was planning to go the day of the election. Garza showed Yarberry a marked sample ballot and told her to vote for "Gilbert Estes." If she did, "they would help [her]." 5 Following that conversation, Yarberry asked Garza to help her get a voucher. Yarberry then went to the civic center to get a voucher. When she arrived, Candula Torres was expecting Yarberry because Garza had told her she was coming. Yarberry received a voucher for $45.00. Yarberry testified she voted on election day after Garza and Solis took her to the polling place, in Garza's car. Garza and Solis gave her a marked sample ballot and told her to vote the way it was marked. On the way back to her home, Yarberry asked whether they were going to buy her something for voting. Solis purchased a six pack of beer for her.

The court then questioned Yarberry. 6

The court: Did somebody promise you anything for your vote?

The witness: Yes, sir.

The court: Who was that?

The witness: Domi Garza.

The court: That's Domitilla Garza?

The witness: Yes, sir.

The court: Did Norma Solis promise you anything?

The witness: No. Just the six-pack. That is all.

The court: After you voted?

The witness: After I voted, yes, sir.

....

The court: No I understand that part. What is it exactly that Domitilla Garza told you?

The witness: She told me she would help me if I voted the right way, which was for Gilbert Estes.

The court: You call him "Gilbert Estes," I take it [that it is] Gilbert Uresti, County Judge that you are talking about?

The witness: Well, the County Judge, sir ...

....

The court: ... Well, when Domi made you that promise was Norma Solis with her?

The witness: No, sir. We were on the phone.

The court: On the phone. So the only time Norma Solis did something for you was after you voted?

The witness: Yes.

The court: After you asked her for a six-pack? Is that what your testimony is?

The witness: Yes, sir. 7

Yarberry's testimony 8 is challenged by appellants Saenz and Garcia. 9 Saenz and Garcia contend that Garza's solicitation of Yarberry's vote is not supported by the evidence. Defendant Garcia contends that Yarberry was not competent to testify, and that her testimony was confusing and conflicting.

Fed.R.Evid. 601 provides that "[e]very person is competent to be a witness except as provided otherwise in [the] rules." A witness is competent to testify if she is capable of communicating relevant material and understands she has an obligation to do so. United States v. Villatta, 662 F.2d 1205, 1206 (5th Cir.1981), cert. denied, 456 U.S. 916, 102 S.Ct. 1771, 72 L.Ed.2d 175 (1982). Furthermore, competency of a witness is a matter to be decided in the trial court's sound discretion. Gurleski v. United States, 405 F.2d 253 (5th Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2127, 23 L.Ed.2d 765 (1969). We conclude that Yarberry was not shown to be an incompetent witness, and the district court did not err by allowing her to testify.

Furthermore, the Court of Appeals must accept all credibility choices made that tend to support the jury's verdict. United States v. Rodriguez, 654 F.2d 315, 317 (5th Cir.1981). United States v. Beason, 690 F.2d 439 (5th Cir.1982), cert. denied, 459 U.S. 1177, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983). It is for the jury to resolve any conflicts within a witness' testimony. United States v. Ortega-Chavez, 682 F.2d 1086, 1091 (5th Cir.1982).

Given that we must accept the jury's credibility choices and its resolution of the conflicts in Yarberry's testimony, it is clear that the evidence supports Garza's conviction. Yarberry testified that Garza promised to "help her" if she voted the right way. Yarberry was later given a food voucher by Candula Torres, who testified that Garza told her Yarberry was coming for a voucher. From this evidence, a reasonable trier of fact could find that the evidence establishes Garza's guilt beyond a reasonable doubt. Bell, 678 F.2d at 549.

Norma Solis also challenges her conviction, alleging that the evidence is insufficient to support her conviction. She was convicted of paying and offering to pay Mercedes Gonzales for her vote. Contrary to Solis' contentions, we find the evidence sufficient.

Mercedes Gonzales testified that Solis promised that Gonzales could pick up a welfare voucher if she voted for Judge Uresti. After Gonzales contradicted herself several times, the court told her she need not be afraid of anything or anyone. Then the court questioned Gonzales:

The court: ... Did Norma Solis and Elvira Garza Rodriguez go to your house and ask you to vote for a candidate?

The witness: In '82?

The court: Yes, in '82. Did either one of them promise you anything for your vote for a candidate?

The witness: Just a voucher for food.

The court: All right. Who is it that told you that if you voted for that--for a candidate that you would receive a voucher?

The witness: Norma. 10

When asked why she contradicted herself earlier, Gonzales indicated she just didn't want to get involved. 11

As we have stated, it is for the jury to resolve any conflicts within a witness' testimony. United States v. Ortega-Chavez, 682 F.2d at 1091. Taking the facts in the light most favorable to the Government, we conclude that from Gonzales' testimony, a reasonable trier of fact could find that the evidence establishes Solis' guilt beyond a reasonable doubt.

(b) The Evidence is Sufficient to Support the Conspiracy Convictions of Saenz, Garcia, and Garza

In order to convict for criminal conspiracy, "the jury must find 'an agreement between two or more persons to commit a crime, and an overt act by one of the conspirators to further the agreement.' " United States v. Lyons, 703 F.2d 815, 822 (5th Cir.1983). United States v. Khamis, 674 F.2d 390, 392 (5th Cir.1982). Saenz and Garcia contend that the evidence is insufficient to support their conspiracy convictions because the...

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