U.S. v. Barraza

• Decision Date: 17 August 2009
• Docket Number: No. 08-3488.,08-3488.
• Citation: 576 F.3d 798
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leobardo B. BARRAZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

576 F.3d 798

UNITED STATES of America, Plaintiff-Appellee, v. Leobardo B. BARRAZA, Defendant-Appellant.

No. 08-3488.

United States Court of Appeals, Eighth Circuit.

Submitted: June 9, 2009.

Filed: August 17, 2009.

Kevin Christopher Curran, AFPD, St. Louis, Mo, for appellant.

Dean R. Hoag, AUSA, argued, Michael J. Ferrara, AUSA, on the brief, St. Louis, MO, for appellee.

Before BYE, HANSEN, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

A jury convicted Leobardo B. Barraza of kidnapping Maria Eloiza and her five-year-old son, Jesus ("Alex") Ramirez, resulting in the deaths of both. 18 U.S.C. §§ 1201(a)(1), 2. The district court¹ imposed a life sentence. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms.

I.

Barraza, then age 16, worked with Eloiza at a store outside Chicago. Barraza and Jose Jesus Hernandez (a.k.a."Chupacabras") invited her to travel to Mexico, with Alex, to bring drugs into the United States. Eloiza agreed, but told a niece that she was taking Alex to Disneyland.

Concerned about safety, Eloiza told a friend about the Mexico drug-trafficking plan. She also wrote an entry in a journal, dated August 20, 1998, which she left in her apartment. Translated from Spanish, it states: "I left to Mexico with Leo Barraza to a business. I'm taking my son. I'll be back Tuesday or Wednesday of next week. In case we get lost, look for us, please." The note provides Barraza's home phone number.

Around August 21, Barraza and Chupacabras picked up Eloiza and Alex. Barraza drove, eventually reaching an isolated wooded area in Franklin County, Missouri. There, according to Barraza's confession, he and Chupacabras raped Eloiza. Chupacabras strangled her to death. Barraza restrained Alex during his mother's murder; both men then repeatedly hit him on the head, killing him. Barraza and Chupacabras concealed the bodies at the murder site.

Barraza and Chupacabras returned to the Chicago area. Barraza told four friends about the Missouri murders, and left Eloiza's and Alex's possessions in plain view in his car.

Hunters discovered Eloiza's and Alex's remains in November 1998. Authorities arrested Barraza in 2006. He waived his Miranda rights and confessed. Chupacabras remains at large.

II.

Barraza asserts the district court erred by not striking for cause Juror 43. "A district court's decision to remove or not remove a juror is reviewed for an abuse of discretion." United States v. Cannon, 475 F.3d 1013, 1023 (8th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 365, 169 L.Ed.2d 143 (2007).

A.

During voir dire, defense counsel asked prospective jurors whether "anything about the nature of the case or the photographs that you think would give you, you know, something you should bring to our attention, could be a problem sitting on this case?" Juror 43 stood up.

Juror 43: Yes, sir. I have a three and five-year-old at home and I believe, as the other juror stated, the parent's responsibility to protect them. I'm not squeamish, I'm not afraid to see photographs. Never been put in this position before. I couldn't tell you how I would judge or not. I feel very strongly about that.

Defense counsel: You mind if I ask you some questions along those lines? I'll be honest with you. Some of them you may have already heard from me, so let me start at beginning. So you have two young children?

Juror 43: Yes.

Defense counsel: Three and five and when you hear that one of the victims is a young child—that's why you raised your hand, I guess. That's why you're talking to me.

Juror 43: Yes, sir.

Defense counsel: Now the question is because of the nature of the evidence you may hear, is your personal life, the fact that you have children, going to have an effect on your ability to hear the case?

Juror 43: As I said, it may. I've never been put in this position before.

Defense counsel: I understand.

Juror 43: At this point I would try to be fair and judge the evidence but it might, I don't know. I couldn't honestly tell you. I couldn't stand here and tell you yes or no.

Defense counsel: You're saying you give it your best effort.

Juror 43: That's the best I could do.

Defense counsel: Listen to the evidence and follow the instructions of the Court?

Juror 43: That is true, but I have very strong feelings.

Defense counsel: But you feel very strongly where a child victim—

Juror 43: Yes, sir.

Defense counsel: That would have an effect on you— Juror 43: Yes, sir.

Defense counsel:—to the point where you wouldn't be able to follow the evidence?

I'm sorry, follow the Court's instruction?

Juror 43: I would follow the Court's instructions the best I could. I couldn't honestly tell you I couldn't set it aside. I mean I deal with the kids every day. I'm around them all the time.

Defense counsel: That's exactly why I asked the question because I'm sure everyone in the courtroom—we're parents, I'm a parent, that's why we ask these questions. Give you an opportunity to talk about it. We don't—I don't want to blindside you.

So you're saying it could possibly have an effect on you?

Juror 43: Yes, sir.

Defense counsel: You're affected, ability to hear the case.

Juror 43: Yes, sir.

Defense counsel: And I just want to make sure is—I don't want to misstate what you're telling me and I want to make sure we have it in the record.

Juror 43: I understand.

Defense counsel: Okay. All right. Thank you very much for talking with me.

Barraza moved to strike Juror 43 for cause. Before final selection of the jury, this exchange occurred between the court and defense counsel:

Defense counsel: Judge, I just want to make sure. [Juror] 43 was one our motions for cause that you took under submission, so I'm assuming that's— since you left him in, that's overruled?

The court: Yes. It was one and I—I'm more impressed with the government's position about that. I thought Ross, number 43, indicated he was concerned emotionally about the problem but that he could put that concern aside and decide the matter impartially, so I will overrule the challenge for cause as to 43.

B.

A defendant has a right to trial "by an impartial jury." U.S. Const. amend. VI. "Impartiality is presumed `so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.'" United States v. Evans, 272 F.3d 1069, 1078 (8th Cir.2001), quoting Lockhart v. McCree, 476 U.S. 162, 184, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). "The test for assessing impartiality asks whether the prospective juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." United States v. Wright, 340 F.3d 724, 733 (8th Cir.2003) (quotations and citations omitted). This court "will not overturn the district court's finding that a prospective juror can put aside any pretrial opinion and render a verdict based upon the evidence at trial unless the error is manifest." United States v. Blom, 242 F.3d 799, 805-06 (8th Cir.2001) (quotations and citations omitted).

Barraza asserts that Juror 43 was not impartial, and that the district court erred by not striking him for cause, citing United States v. Sithithongtham, 192 F.3d 1119 (8th Cir.1999). There, a juror testified that he "would probably give [law enforcement witnesses] the benefit of the doubt if something was questionable," but that "I could probably be fair and impartial." Id. at 1121. This court found the district court erred by not striking the juror for cause, but concluded it was not reversible error (as the defendant used one of his peremptory strikes to remove the biased juror). Id. at 1121, 1123. "`Probably' is not good enough." Id. at 1121. See also United States v. Nelson, 277 F.3d 164, 201 (2d Cir.2002) (district court erred by failing to strike a juror who said "he `would like to think' of himself as objective and able to give the defendants a fair trial," but "he `[h]onestly ... [didn't] know' whether he could do so").

An initial impression about a case does not disqualify a juror if the district court accepts the juror's assurances that he or she will set aside any preconceived beliefs and follow the court's instructions. See Blom, 242 F.3d at 806 (affirming the district court's refusal to strike a juror for bias when the "court and counsel made the proper inquiry, and the issue is essentially one of demeanor and credibility").

In United States v. Johnson, this court reviewed voir dire testimony similar to that of Juror 43 in this case. United States v. Johnson, 495 F.3d 951 (8th Cir. 2007), cert. denied, ___ U.S. ___, 129 S.Ct. 32, 172 L.Ed.2d 46 (2008). There, the juror "stated that his empathy for the victim's family and the fact that the crime involved children could affect his judgments about the case." Id. at 964. This court affirmed the denial of the motion to strike the juror for cause. Id. "Although the juror gave some equivocal answers and acknowledged the possibility that his judgment could be affected by some aspects of the case, the district court concluded that juror 600 could be fair and impartial and that his statements reflected the `reasonable self doubts' of a conscientious and reflective person." Id. (Johnson analyzed the challenged juror within the Wainwright-Witt death penalty framework. The court's finding of no error, however, was based on its conclusion that the voir dire transcript revealed no bias. See id.)

Here, Juror 43 described his sense of parental responsibility, stating that it may "possibly" affect his ability to hear the evidence in this case. Asked if he could "listen to the evidence and follow the instructions of the court," he said: "That is true, but I have strong feelings." Unlike the Sithithongtham juror, Juror 43 did not indicate that he would give greater weight to the testimony of government witnesses. The district court did not abuse its discretion by finding that Juror 43's testimony, in context, shows he could follow the...