U.S. v. Arce

• Decision Date: 03 August 1993
• Docket Number: No. 92-2233,92-2233
• Parties: 39 Fed. R. Evid. Serv. 450 UNITED STATES of America, Plaintiff-Appellee, v. Freddie Ocampo ARCE and Harold Pineda-Velez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1123

997 F.2d 1123

39 Fed. R. Evid. Serv. 450

UNITED STATES of America, Plaintiff-Appellee, v. Freddie Ocampo ARCE and Harold Pineda-Velez, Defendants-Appellants.

No. 92-2233.

United States Court of Appeals, Fifth Circuit.

Aug. 3, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Sept. 30, 1993.

J.C. Castillo and Tom Zakes, Houston, TX, for Arce.

Ira F. Perez, Perez & Hebert, Houston, TX (court appointed), for Pineda-Valdez.

Susan M. Davies, pro hac vice, Dept. of Justice, Washington, DC, Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys. and Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

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

Before WISDOM, DAVIS, and SMITH, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Freddie Ocampo Arce ("Arce") and Harold Pineda-Velez ("Pineda") appeal their convictions for conspiracy to possess with intent to distribute and for aiding and abetting the possession with intent to distribute of over five kilograms of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). We find no reversible error and affirm.

I.

In July, 1991, Carl Fessler, acting as a confidential informant for the DEA, contacted an acquaintance from prison, Juan Sosa, to arrange a purchase of 100 kilograms of cocaine. Sosa testified that he contacted Pedro Gemin, another prison acquaintance, who invited Sosa to Houston to set up the transaction. While in Houston, Sosa was introduced to Albero Ramos. Ramos, in turn, contacted appellant Pineda.

Sosa went back to Miami for a few days, then returned to Houston when Gemin notified Sosa that part of the transaction was to take place in Houston. Gemin and Sosa met with Fessler and two undercover officers posing as buyers in a hotel and agreed to a sell 50 kilos of cocaine for approximately $500,000. Gemin and Sosa agreed to sell an additional 50 kilos to be delivered in Chicago. After that meeting, Sosa and Gemin met with Ramos. Gemin testified that Ramos called Pineda to tell him that they had seen the money.

On August 7, 1991, Pineda met with Gemin at Wyatt's Cafeteria to arrange the details of the sale. At Pineda's request, Gemin got a car from Ramos, a gold Oldsmobile, to serve as the load vehicle for the cocaine. Gemin dropped off the car, with the keys inside, at the Wyatt's Cafeteria and called Pineda with the license plate number. Pineda was to drop off the car loaded with cocaine at Gemin's residence later that afternoon.

Gemin and Sosa then went to the Marriott Hotel and met Fessler and Officer George Helton, one of the "buyers." They agreed that Helton would accompany Gemin to his home and call Fessler when the cocaine arrived. Sosa would wait with Fessler at the hotel; when Helton called, Fessler was to release the money to Sosa.

An hour and a half later, officers observed a red Sunbird and a gold Oldsmobile approaching Gemin's home. Gemin met Pineda and appellant Arce, whom Pineda introduced as the person in charge, at the front door. Gemin testified that the two men entered the house, and Pineda told Gemin that he had only 35 kilos of cocaine, instead of the promised 50 kilos. After Gemin expressed disappointment and Arce appeared ready to leave, Pineda suggested that Gemin speak to his people about accepting the reduced quantity. Gemin met with Helton in another room, and Helton agreed to accept the 35 kilos. Gemin then took the keys to the Oldsmobile and pulled the car into his garage. After he was shown the cocaine, Helton called Fessler at the Marriott. Law enforcement officers immediately entered the house and arrested the defendants.

Arce, Pineda, Sosa, and Gemin were charged in a two-count indictment with conspiracy to possess over five kilograms of cocaine with intent to distribute and with aiding and abetting in the possession of over five kilograms of cocaine with intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). After a full trial, a jury convicted Arce and Pineda on both counts. The court sentenced Arce to 235 months imprisonment, five years supervised release, and a special assessment of $100. Pineda received a sentence of 190 months imprisonment, five years supervised release, and a $100 special assessment. Both defendants now appeal their convictions.

II.

Defendants first challenge the district court's ruling permitting the government to make two peremptory challenges to the jury venire. Pineda and Arce both allege race discrimination in the prosecutor's peremptory challenge of a Spanish-speaking juror. In addition, Pineda argues that the trial court erred in striking for cause another juror who had been convicted for heroin possession. We address these arguments in turn.

A.

The prosecutor exercised a peremptory challenge to strike Antonio Barajas, a Spanish-speaking venireperson. Pineda and Arce contend that the district court erred in overruling their objection, based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the strike was racially motivated.

During voir dire, the defense asked whether any member of the panel knew Spanish, and Mr. Barajas indicated that he could understand, read, and speak Spanish. Neither the court nor the attorneys questioned Mr. Barajas further. The prosecutor exercised a peremptory challenge to excuse this juror. In response to defense counsel's Batson objection, the prosecutor explained the challenge as follows:

[T]he reason I struck him was because his employment was only a short period of time. He has been at Anheuser-Bush [sic] for only six months. He was also the only person who indicated, as I recall, that he spoke, was fluent in the Spanish language. I had some concern that if there was any translations to be given that, of course, the jury panel would have to rely on the translation that was given from that was admitted into evidence, and that some concern that perhaps someone who spoke Spanish, they may give a different version of the Spanish in the jury, primarily for those two reasons.

Arce's attorney responded, "We would question that, because the prosecutor had ample time to question the juror. He did not. He chose not to question the juror about whether that could affect or become a factor in this proceeding." The court ruled that "[t]he Supreme Court indicated that that's a legitimate reason for striking someone. I am satisfied that that's a legal reason."

The defendants failed to challenge the prosecution's first reason for excusing Mr. Barajas, his short time of employment. Because this reason was not facially race-related and the defense did not dispute that explanation the district court had no need to rule on its validity.

The Second Circuit has held that a defendant waives objection to a peremptory challenge by failing to dispute the prosecutor's explanations:

Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim.... By failing to dispute the Government's explanations, [defendants] appeared to acquiesce in them. As a result, there was no need for the district judge to make a ruling.

United States v. Rudas, 905 F.2d 38, 41 (2d Cir.1990). By failing to dispute the prosecutor's short-term employment explanation in the district court, defendants have waived their right to object to it on appeal. Mr. Barajas's short time of employment thus stands as an uncontested basis for excusing him, and we need not consider his Spanish language ability as an explanation for the challenge.

B.

Pineda also argues that the district court erred in striking for cause a venireperson who had a prior conviction for heroin possession. Pineda acknowledges that 28 U.S.C. § 1865(b)(5) disqualifies from jury service a person who "has been convicted in a State or Federal court of record of[ ] a crime punishable by imprisonment for more than one year and his civil rights have not been restored." According to Pineda, however, § 1865(b)(5) unconstitutionally discriminates against convicted felons.

We have no trouble concluding that § 1865(b)(5) is constitutional. The constitutionality of § 1865(b) is subject to rational basis review. See Shepherd v. Trevino, 575 F.2d 1110, 1115 (5th Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979) (holding that selective disenfranchisement or reenfranchisement of convicted felons is subject to rational basis review). Several appellate courts have upheld § 1865(b)(5) under this standard. See United States v. Foxworth, 599 F.2d 1, 4 (1st Cir.1979); United States v. Greene, 995 F.2d 793, 798 (8th Cir.1993).

We agree with those courts that excluding convicted felons from jury service does not violate the constitutional guarantee of equal protection. The government has a legitimate interest in protecting the probity of juries. Excluding convicted felons from jury service is rationally related to achieving that purpose.

III.

We consider next two challenges to the district court's evidentiary rulings. Arce contends the district court erred in admitting drug ledgers into evidence without proper authentication. Pineda argues that the court erred in admitting a codefendant's testimony about a jailhouse conversation between Pineda and Arce.

A.

Arce contends that the district court abused its discretion in admitting into evidence ledgers reflecting drug transactions between Henry William Nunez, a known cocaine trafficker, and someone named "Fredy." The ledgers reflected drug transactions with "Fredy" on August 5 and August 7, 1991. The government contended that "Fredy" referred to the defendant, Freddie Arce. The August 5 entry, under the name "Fredy," bore the number "2" followed by the date and time, "10 pm." The government offered evidence that an undercover officer purchased two kilos of cocaine at that time from a person who had just obtained the cocaine from...