879 F.2d 541 (9th Cir. 1989), 88-3102, United States v. Sanchez-Lopez

Docket Nº:88-3102, 88-3104, 88-3105.
Citation:879 F.2d 541
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Epifanio SANCHEZ-LOPEZ; Brijido Astorga-Ayon, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Antonio MARTINEZ-ORTEGA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Guillermo SANCHEZ-LOPEZ, Defendant-Appellant.
Case Date:June 22, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 541

879 F.2d 541 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Epifanio SANCHEZ-LOPEZ; Brijido Astorga-Ayon, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Antonio MARTINEZ-ORTEGA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Guillermo SANCHEZ-LOPEZ, Defendant-Appellant.

Nos. 88-3102, 88-3104, 88-3105.

United States Court of Appeals, Ninth Circuit

June 22, 1989

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Argued and Submitted May 5, 1989.

Page 545

Philip Gordon, Sallaz and Doolittle, Boise, Idaho, for defendants/appellants Epifanio Sanchez-Lopez and Brijido Astorga-Ayon.

Rudolf D. Barchas, Boise, Idaho, for defendant/appellant Antonio Martinez-Ortega.

M. Karl Shurtliff, Boise, Idaho, for defendant/appellant, Guillermo Sanchez-Lopez.

Monte J. Stiles, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho (Boise).

Before ALARCON and THOMPSON, Circuit Judges, and TASHIMA, [*] District Judge.

ALARCON, Circuit Judge:

Epifanio Sanchez-Lopez, Brijido Astorga-Ayon, Antonio Martinez-Ortega, and Guillermo Sanchez-Lopez (appellants) appeal from the district court's judgment of conviction for conspiracy to distribute cocaine under 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B), 846; conspiracy to distribute heroin under 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B), 846; possession of cocaine with intent to distribute under 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B); possession of heroin with intent to distribute under 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B); and use of a communication facility to facilitate the commission of drug felonies under 21 U.S.C. Sec. 843(b). 684 F.Supp. 634. Appellants seek reversal on the following grounds:

(1) The district court erred when it refused to dismiss the indictment because Hispanics are under-represented on the grand and petit juries in the District Court for the District of Idaho in violation of the fifth and sixth amendments and the Jury Selection and Service Act.

(2) The district court erred in denying appellants' motions for election of counts.

(3) The district court erred in denying appellants' motions for severance of counts.

(4) The district court's comments and demeanor before the jury demonstrated a "partiality" for the prosecution resulting in prejudicial error.

(5) The district court erroneously admitted hearsay testimony linking appellants Astorga-Ayon and Martinez-Ortega.

(6) The cumulative impact of the district court's incorrect evidentiary rulings established "harmful error."

(7) The district court erred in refusing to give sentencing point reductions based on its conclusion that the participation of three of the appellants in the criminal activity was not minimal.

(8) The district court erred when it applied the career offender sentencing guideline provisions to appellant Martinez-Ortega.

We affirm in part and remand with directions.

I

FACTS

In July 1987, investigators with the Federal Organized Crime/Drug Enforcement Task Force for the District of Idaho began an undercover investigation into the cocaine and heroin trafficking activities of appellant Antonio Martinez-Ortega and his associates as a result of information received from an informant. As part of the

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undercover operation, the confidential informant and an undercover D.E.A. agent posed as potential heroin and cocaine customers for Martinez-Ortega. Pursuant to their negotiations with Martinez-Ortega, the informant and D.E.A. agents made a controlled purchase of black tar heroin from Martinez-Ortega and his associates in Delano, California, on August 26, 1987.

Subsequently, Martinez-Ortega sold the informant and D.E.A. agents another ounce of black tar heroin. During these two purchases, Martinez-Ortega offered to sell the government agents much larger quantities of cocaine in the future. Pursuant to this offer, Martinez-Ortega and the other three appellants after a number of telephone calls arranged to bring cocaine and heroin to Idaho.

On November 22, 1987, Martinez-Ortega advised the confidential informant that appellants were en route to Idaho in two vehicles. Appellants were stopped in Idaho by agents of the Idaho Bureau of Narcotics, the Idaho State Police, the Drug Enforcement Administration, and the United States Immigration and Naturalization Service. Martinez-Ortega was in the lead vehicle driven by Epifanio Sanchez-Lopez. Guillermo Sanchez-Lopez drove the trailing vehicle. Astorga-Ayon was a passenger in the second car. The car driven by Epifanio Sanchez-Lopez contained approximately 2 1/2 kilograms of cocaine and 100 grams of black tar heroin wrapped in three packages. The fingerprints of Epifanio Sanchez-Lopez, Guillermo Sanchez-Lopez, and Astorga-Ayon were found on the packages.

Appellants were charged in an eleven-count indictment with conspiracy to distribute heroin and cocaine, possession with intent to distribute heroin and cocaine, illegal transportation of aliens, alien in possession of a firearm, and use of a communication facility to facilitate the commission of drug felonies. After a jury trial, appellants were convicted on all counts, except for the two counts alleging transportation of illegal aliens.

Following the verdicts, appellants filed motions attacking the validity of the Sentencing Guidelines. On May 6, 1988, the district court found that the Sentencing Guidelines were unconstitutional. The effect of the ruling was stayed pending a decision by the Supreme Court on this question. Subsequently, the appellants were sentenced in separate and alternative judgments pursuant to the Sentencing Guidelines and according to the law prior to the effective date of the Sentencing Guidelines. Except for Martinez-Ortega, the appellants received identical sentences in the alternative orders. Martinez-Ortega received a 30-year sentence under the Sentencing Guidelines. In the alternative sentence imposed without following the Sentencing Guidelines Martinez-Ortega was ordered to serve 20 years. Appellants filed timely notices of appeal.

II

DISCUSSION

  1. Fifth and Sixth Amendment Jury Selection Challenge

    Prior to trial appellants moved for a dismissal of the indictment. They contended that the manner in which the grand and petit jury panels are chosen in the federal district courts in Idaho deprived appellants of their right to a fair and impartial jury, under the fifth and sixth amendments and the Jury Selection and Service Act, 28 U.S.C. Secs. 1861-1863, because Hispanics are under-represented on the grand and petit juries. The district court denied the motion. The court concluded that appellants had failed to establish a prima facie case of a constitutional and statutory violation.

    We review independently and non-deferentially a challenge to the composition of grand and petit juries. United States v. Miller, 771 F.2d 1219, 1227 (9th Cir.1985). "The test for a constitutionally selected jury is the same whether challenged under the Sixth Amendment of the Constitution or under the Jury Selection and Service Act." Id. The Supreme Court has developed a three part test to determine whether a jury selection process passes a sixth amendment challenge. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664,

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    668, 58 L.Ed.2d 579 (1979). A prima facie violation of the fair cross-section requirement is established upon a showing:

    (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

    Id.

    The first prong of the Duren test has been met. Hispanics are members of a distinctive and identifiable group in the community. Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977).

    Under the second prong of the Duren test, appellants were required to show that the representation of Hispanics in venires from which juries are selected is not fair and reasonable in relation to the number of Hispanics in the community. Duren, 439 U.S. at 364, 99 S.Ct. at 668. Appellants presented statistical evidence in the district court indicating that Hispanics comprised 3.87% of the total population of Idaho and 5.59% of the population in the Southern Division of Idaho. Appellants looked at the surnames of individuals on the master jury wheel and determined that 65 or 1.82% of the names were Hispanic and that 47 or 2.79% of the names on the Southern Division wheel were Hispanic.

    The government challenges the accuracy of appellants' statistics on two grounds. The government contends that some of the total population figures used were 1988 projections based on the 1980 census. Furthermore, appellants presented no evidence indicating what portion of the Hispanics in the total population were "non-citizens, juveniles or otherwise ineligible for jury service."

    The district court's order rests on the implicit conclusion that the defendants were required to provide jury eligible population figures. In Castaneda, however, the Court allowed the defendant to demonstrate a prima facie case of an equal protection violation using total population figures. 430 U.S. at 495-96, 97 S.Ct. at 1280-81. In Duren, which dealt with a sixth amendment challenge, the Supreme Court's language suggests that the government has the right to present evidence to challenge a defendant's statistics. See Duren, 439 U.S. at 365, 99 S.Ct. at 669. (State of Missouri never challenged the data and court's speculation that population patterns had changed during the relevant time period was not supported...

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