U.S. v. Apodaca

• Decision Date: 04 January 1982
• Docket Number: No. 81-1096,81-1096
• Citation: 666 F.2d 89
• Parties: 82-1 USTC P 9164 UNITED STATES of America, Plaintiff-Appellee, v. Victor G. APODACA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 89

666 F.2d 89

82-1 USTC P 9164

UNITED STATES of America, Plaintiff-Appellee, v. Victor G. APODACA, Jr., Defendant-Appellant.

No. 81-1096.

United States Court of Appeals Fifth Circuit.

Jan. 4, 1982.

Charles Louis Roberts, El Paso, Tex., Stewart W. Forbes, Scott E. Segall, El Paso, Tex., for defendant-appellant.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., John F. Murray, Atty., Michael L. Paup, Robert E. Lindsay, James P. Springer, Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, TATE and WILLIAMS, Circuit Judges.

TATE, Circuit Judge:

The defendant, Apodaca, appeals from his conviction for corporate income tax evasion and for making and subscribing materially false corporate income tax returns. Apodaca raises five issues on appeal: (a) that the jury selection process in the district does not represent a fair cross-section of the community; (b) that certain jurors should have been excused for cause; (c) that certain summary testimony should not have been admitted; (d) that a judgment of acquittal was erroneously denied on one count; and (e) that the prosecutor made improper closing remarks. For the reasons set forth below, we affirm Apodaca's conviction.

Victor Apodaca was charged in August 1980 with a ten-count indictment ¹ for income tax evasion. The government's motion to dismiss Count Ten was granted; ² the jury returned a verdict of not guilty on the three counts of personal income tax fraud; ³ and the jury returned a verdict of guilty on the three counts of corporate income tax evasion (26 U.S.C. § 7201) ⁴ and the three counts of willfully making and subscribing materially false corporate income tax returns (26 U.S.C. § 7206(1)). ⁵ After the jury returned a verdict of guilty, the district court sentenced the defendant to three years on each of the six counts, to be served concurrently on all counts except Count Three, and imposed two consecutive fines of $10,000 each for Counts One and Two. On Count Three, the district court then suspended the execution of the consecutive sentence on five years probation and imposed a $10,000 fine. It is from this conviction that Apodaca appeals.

A. Jury Selection Process

Apodaca contends on appeal that the jury selection process in the El Paso Division of the Western District of Texas is unlawful. He makes the argument that the selection process violates both the Sixth Amendment right to an impartial jury and the statutory requirements under 28 U.S.C. §§ 1861-1874, designed to assure random selection from a fair cross-section of the community. As one basis of this complaint, Apodaca alleges that there is a significant underrepresentation of Hispanic surnamed individuals on the Master Jury List, due to the fact that the sole source of the jury list is the voter registration list and Hispanic-Americans traditionally register to vote in fewer numbers than other recognizable groups. This contention was answered adversely to Apodaca in United States v. Brummitt, 665 F.2d 521, at 527-530 (5th Cir. 1981), a companion case decided by the court this term. ⁶

Apodaca claims that his argument may be distinguished from that in Brummitt in that additionally he claims a disparity in the number of young people (i.e., persons in the 18 to 35 year old age group) on the jury lists. ⁷ He alleges that the combination of these two issues produces a greater violation of the requirement that grand and petit juries be representative of a cross-section of the community. 28 U.S.C. §§ 1861, 1862.

Apodaca introduced evidence by affidavit and at the hearing on his motion to dismiss the indictment that, according to the 1970 census, 53.2% of the gross general population of El Paso County were in the category of "Spanish surname and language," while only 42.3% of his sampling of 500 names taken from the qualified jury wheel had Hispanic surnames. ⁸ Additional testimony was elicited to the effect that certain minorities (including Hispanics) are believed to have been undercounted on the census and that a figure of 6.9% should be added to the 53.2% that appears in the actual census figures. Using such statistics, the absolute disparity of Hispanics on grand and petit juries in El Paso County is alleged to be 17.8% (53.2% k 6.9% (correction %) - 42.3% = 17.8%). Apodaca then argues that this disparity results from the fact that the jury wheel is taken exclusively from the voter registration list and that Hispanic Americans traditionally register to vote in fewer numbers. Accordingly, Apodaca argues that under the situation he presents, 28 U.S.C. § 1863(b)(2) ⁹ would require that supplemental lists be used as a source for the master jury list.

The statistics presented to the district court concerning the underrepresentation of young people are similar. Evidence was introduced by affidavit and at the hearing that the general population of El Paso County contains 46.8% of persons age 18-35, while the 500 person sample drawn from the jury list contained only 28.2%, or an absolute disparity of 18.6%. ¹⁰

The claims raised by Apodaca are essentially the same as in United States v. Brummitt, supra, 665 F.2d at 527 (1981), which involved challenges to the El Paso County jury selection process only on the basis of an underrepresentation of Hispanics. As in Brummitt, the defendant here alleges that section 1863(b) (2) of the Jury Selection and Service Act of 1968 (28 U.S.C. § 1861 et seq.) has been violated by the exclusive use of the voter's registration list. As in Brummitt, the defendant here presented only evidence that tended to establish that there is a disparity between the proportion of Hispanic-Americans and young people in the gross general population and the proportion of those selected on the master jury list. The record is totally devoid of any evidence that would tend to establish the percentage in either identifiable class who are eligible to serve as jurors.

For the reasons fully discussed in United States v. Brummitt, supra, 665 F.2d at 530 (1981), we find that, on the record before us, Apodaca has failed to establish a prima facie case of substantial non-compliance with the statutory or constitutional requirements. ¹¹ We, therefore, affirm the denial of Apodaca's motion to dismiss the indictment.

B. Juror Challenge for Cause

As his second point of error, Apodaca contends that the trial court erred in refusing to excuse for cause two jurors. Both prospective jurors were subsequently struck by the defendant, using up his peremptory challenges (an action which Apodaca alleges caused him to be unable to peremptorily challenge two jurors who were unacceptable).

During the general voir dire the district court asked for a show of hands of prospective jurors who had some exposure to pre-trial publicity. ¹² Mrs. Jean Eberle, having indicated that she had heard of the case in the newspaper, was questioned individually by the court. During this examination, juror Eberle brought out the following points on which the defendant based his challenge for cause: (1) that she had worked for the FBI; (2) that her husband (now retired) had worked for the FBI 30 years; (3) that she "knew how much investigation went into a case before presentment to a grand jury;" and (4) that if all things were equal, she might be human enough to give a little more credence to the prosecution based on this knowledge.

The district court and the defense counsel then questioned Mrs. Eberle concerning specific things she may have read about the case and her ability to remain impartial in light of the fact that the case had been initiated and prepared by the FBI. During the voir dire Eberle responded that she had not discussed the case with her husband and was not cognizant of much concerning the case. She answered, responding to the court's inquiry, that she could set aside anything she remembered and base her decision on the evidence presented. Mrs. Eberle responded that she would not resent any stringent cross-examination of FBI witnesses, that her frame of mind concerning the case was fair and impartial, and that she did not know either of the proposed FBI agent witnesses.

The defendant strongly contends that juror Eberle, while honest with the court concerning her assertions that she would rely on the evidence, was not asked specifically if she could set aside her stated tendency to favor the prosecution in this case, based on her prior association with the FBI. Apodaca argues that as she openly admitted her prejudice the court need not merely suspect bias, but had clear evidence of it. Relying on United States v. Corey, 625 F.2d 704 (5th Cir. 1980), cert. denied, 450 U.S. 925, 101 S.Ct. 1377, 67 L.Ed.2d 354 (1981) and United States v. Nell, 526 F.2d 1223 (5th Cir. 1976), the defendant claims that even if Eberle's responses did not absolutely establish her bias in the eyes of the court (as he argues it did in this case), a substantial doubt concerning actual prejudice was raised, and any such doubt "should be resolved against permitting the juror to serve, unless the prospective panelist's protestation of a purge of preconception is positive, not pallid." Nell, supra, 526 F.2d at 1230. Apodaca urges on appeal that juror Eberle's responses were noncommittal at best, but could not be considered "positive."

The Sixth Amendment entitles a defendant to an impartial jury which will render a verdict based exclusively upon the evidence presented in court and not on outside sources. Irvin v. Dowd, 366 U.S. 717, 711-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961). This right is principally implemented through the system of challenges exercised during the voir dire of prospective jurors. Nell, supra, 526 F.2d at 1229. The judge has broad discretion in the conduct of the voir dire, subject to the essential demands of fairness that require that...