U.S. v. Garcia
| Decision Date | 06 June 1991 |
| Docket Number | 539 and 1000,Nos. 529,D,s. 529 |
| Citation | 936 F.2d 648 |
| Parties | 33 Fed. R. Evid. Serv. 206 UNITED STATES of America v. Amable GARCIA, Miguel Cabrera, Jose Domingo, Carlos Reinoso, Defendants, Jose Dominguez, a/k/a "Jose Domingo", Miguel Cabrera and Amable Garcia, Defendants-Appellants. ockets 90-1313, 90-1366 and 90-1367. |
| Court | U.S. Court of Appeals — Second Circuit |
Sam A. Schmidt, New York City (Barocas & Schmidt, of counsel), for defendant-appellant Dominguez.
Collen P. Cassidy, New York City (Legal Aid Soc., of counsel), for defendant-appellant Cabrera.
David Goldstein, New York City (Goldstein, Weinstein & Fuld, of counsel), for defendant-appellant Garcia.
Ira M. Feinberg, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Lisa Margaret Smith, Daniel C. Richman, Asst. U.S. Attys., S.D.N.Y., of counsel), for appellee.
Before LUMBARD, NEWMAN and ALTIMARI, Circuit Judges.
Defendants-appellants Jose Dominguez, Miguel Cabrera, and Amable Garcia appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Robert P. Patterson, Judge ). The underlying indictment charged the defendants, in Count One, with conspiracy to violate the narcotics laws of the United States, in violation of 21 U.S.C. Sec. 846 (1988) and, in Count Two, with possession with the intent to distribute more than 500 grams of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. Secs. 841(a)(1) (1988), 841(b)(1)(B) (1988) and 845a(a) (1988). Following a two week jury trial, Garcia was convicted on both counts; Cabrera was convicted on Count One, the conspiracy count, but was acquitted on Count Two; and Dominguez was convicted on Count Two, the possession count, but was acquitted on Count One.
On appeal, all three defendants contend that they were deprived of their sixth amendment right to trial by an impartial jury as a result of the district court's refusal to excuse for cause thirteen members of the venire who had just completed jury service in another narcotics trial at which one of the Government's witnesses in the underlying action had testified. Four of these individuals served as jurors in this action. Defendants Dominguez and Garcia also challenge certain evidentiary rulings made by the court during the course of the trial. Dominguez also raises claims concerning the Government's failure to disclose that two Government witnesses had been shown his photograph. Finally, defendant Garcia contends that the district court improperly applied the Sentencing Guidelines.
For the reasons set forth below, the judgments of conviction are affirmed.
The Government's evidence at trial showed that in early August 1989, two Drug Enforcement Administration ("DEA") informants, Mario Perez and Freddie Diaz, met with defendants-appellants Amable Garcia and Miguel Cabrera to discuss the possible purchase of cocaine from Garcia. Diaz asked Garcia if Garcia could supply him with three kilograms of cocaine. Garcia agreed to supply the drugs, and the two negotiated the price. The men subsequently proceeded to "Amable's Restaurant" to await delivery of the drugs. "Amable's," located at 935 East 163rd Street in the Bronx, was owned by defendant Garcia. After waiting some time at the restaurant, the informants were signalled by DEA agents that they should leave. Accordingly, Perez told Garcia that the deal was taking too long and would have to be put off to another time.
A few days later, Diaz returned to Amable's Restaurant accompanied by another DEA informant, Gerson Ferrer. Diaz told Garcia that Ferrer was a "major drug dealer" in Washington, D.C., and that he would proceed with the transaction. So informed, Garcia asked Ferrer if he wanted to buy the cocaine that day. Ferrer replied that he had no money with him, but that he would return to complete the transaction. On August 7, 1990, Ferrer phoned Garcia and arranged to complete the deal the following day. The next day, Ferrer, accompanied by Perez, returned to Amable's Restaurant. Garcia and Cabrera, defendant-appellant Jose Dominguez, and defendant Carlos Reinoso, who actually supplied the cocaine, were waiting for them in front of the restaurant. As Ferrer arrived, Dominguez, who had accompanied Reinoso to the restaurant, told Ferrer that he would like the cocaine he was about to purchase. Ferrer stated that he had enough money to buy three kilograms of cocaine. Garcia indicated, however, that he could supply only one kilogram at that time, and instructed Cabrera to enter the restaurant and get the cocaine.
The rest of the men soon entered the restaurant and proceeded to a room on the second floor. Cabrera was leaving the room as they entered. Inside, a package, covered by a pair of trousers, rested on a table. Garcia removed the trousers, revealing a "brick" of cocaine tightly wrapped in brown plastic tape. Cabrera returned to the room and gave Garcia a knife to cut through the tape. Garcia then opened the package and allowed Perez to test the cocaine. After testing the cocaine, Perez agreed that he and Ferrer would take the one kilogram. Perez then left the room, stating that he had to go outside to get the money. At that point, a team of DEA agents, including Special Agent John McKenna, arrived and arrested Garcia, Cabrera, Dominguez, and Reinoso.
The Government filed a two count indictment against the defendants. Count One charged the defendants with conspiracy to violate the narcotics laws of the United States in violation of 21 U.S.C. Sec. 846; Count Two charged them with possession with the intent to distribute more than 500 grams of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), and 845a(a). Before trial, defendant Reinoso pleaded guilty to the conspiracy count and was sentenced to sixty-six months in prison. Reinoso has not appealed from his conviction or sentence. Following a two week jury trial before Judge Robert P. Patterson, defendant-appellant Garcia was convicted on both counts and was sentenced to ninety-seven months in prison and eight years of supervised release. Defendant-appellant Cabrera was convicted on Count One, the conspiracy count, and was sentenced to eighty months in prison and four years of supervised release. Defendant-appellant Dominguez was convicted on Count Two, the possession count, and was sentenced to a sixty-month term of imprisonment, followed by eight years of supervised release, and was also directed to perform fifty hours of community service upon his release. This appeal followed.
In response to questions posed by Judge Patterson during voir dire, it was revealed At the close of voir dire, defense counsel challenged for cause the members of the venire who had served as jurors in the prior trial. The district court refused to excuse the jurors, stating: "I have listened to them and observed them and they don't appear to me ... to have a fixed viewpoint." Ultimately, four of these venirepersons were selected for service in the underlying action.
that thirteen venirepersons had just completed jury service in another narcotics trial at which DEA Special Agent John McKenna, who was scheduled to testify in the instant case, had testified. Judge Patterson proceeded to question each of these individuals in open court regarding his or her impartiality. These prospective jurors stated unequivocally that their prior jury service would not affect their ability to evaluate fairly and impartially McKenna's testimony in the present case. To assure that the prior jury service had not biased the thirteen potential jurors, the court, with counsel present, also examined each of them in camera, asking questions drafted by defense counsel. Several of the prospective jurors indicated that they had formed a favorable opinion concerning the credibility of McKenna's testimony. Nevertheless, they again stressed that they could fairly and impartially evaluate McKenna's testimony if selected as jurors.
The primary issue on appeal is whether the district court denied appellants their sixth amendment right to trial by an impartial jury by refusing to excuse for cause those members of the venire who had heard McKenna's testimony in the prior proceeding. Appellants contend that, regardless of the jurors' responses during voir dire and during the in camera interviews, the district court erred by not finding the jurors biased as a matter of law. Alternatively, appellants contend that the jurors' responses demonstrated actual bias.
We last considered this issue twenty-three years ago in United States v. Haynes, 398 F.2d 980 (2d Cir.1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 124 (1969). In Haynes, defense counsel moved to strike for cause thirteen venirepersons who had previously served as jurors in a narcotics case during which the same government witnesses testified who were scheduled to testify against defendant Haynes in his narcotics trial. Id. at 983. Haynes contended, as do the appellants here, that the prospective jurors were incapable of being impartial because they had found the government's witnesses credible in the prior case. Id. The district court refused to excuse these venirepersons for cause. On appeal, we held that in cases where members of the venire are challenged on the basis of prior jury service at a trial involving similar but unrelated offenses, at which the same government witnesses testify, actual bias must be proved, not implied. Id. at 985. Accord, United States v. Carranza, 583 F.2d 25, 28-29 (1st Cir.1978); United States v. DeMet, 486 F.2d 816, 819 (7th Cir.1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974); Johnson v. United States, 484 F.2d 309 (8th Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 539, 38 L.Ed.2d 329 (1973); Government of the Virgin Islands v. Williams...
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