U.S. v. Canales

• Decision Date: 04 October 1984
• Docket Number: No. 83-2517,83-2517
• Citation: 744 F.2d 413
• Parties: 17 Fed. R. Evid. Serv. 813 UNITED STATES of America, Plaintiff-Appellee, v. Aurora CANALES and Elia Garcia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 413

744 F.2d 413

17 Fed. R. Evid. Serv. 813

UNITED STATES of America, Plaintiff-Appellee, v. Aurora CANALES and Elia Garcia, Defendants-Appellants.

No. 83-2517.

United States Court of Appeals Fifth Circuit.

Oct. 4, 1984.

Tony Canales, Nancy M. Simonson, Corpus Christi, Tex., for Canales.

Jaime Garza, Alice, Tex., for Garcia.

Daniel K. Hedges, U.S. Atty., James R. Gough, Susan L. Yarbrough, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before GARZA, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

The defendants Aurora Canales and Elia Garcia were convicted, following a jury trial in June 1983 in Laredo, Texas, on one count of vote buying and one count of conspiracy to buy or offer to buy votes in violation of 42 U.S.C. Sec. 1973i(c) and 18 U.S.C. Sec. 371. In their appeal from these convictions, defendants primarily contend that the evidence presented at trial was insufficient to support their convictions, and that improper statements by the prosecutor deprived them of a fair trial. ¹ We affirm.

I. PROCEEDINGS BELOW

Defendants were charged in a five-count indictment under 42 U.S.C. Sec. 1973i(c) and 18 U.S.C. Secs. 2 and 371, each count relating to absentee voting in San Diego, county seat of Duval County, Texas, during April 1982 in the Democratic primary election. ² They were each convicted on counts one and three. Count one charged a conspiracy between defendants and others, named and unnamed, to pay and offer to pay voters to vote for Gilberto Uresti as Democratic nominee for county judge. Two overt acts were alleged: first, an offer by defendant Elia Garcia of a twenty dollar food voucher to Ester Espinoza to vote for Uresti; second, an offer by defendant Aurora Canales of thirty dollars to Lillian Alaniz to vote for Uresti. Defendants were each convicted on this count. The remaining counts charged substantive offenses. Count two charged defendant Elia Garcia, but not defendant Aurora Canales, with paying and offering to pay Ester Espinoza for voting in the election. The jury acquitted Garcia on this count. Count three, on which both defendants were also convicted, charged them each with paying and offering to pay Lillian Alaniz for voting in the election, and with aiding and abetting each other in doing so. Counts four and five, which related to the same events as count three, charged each defendant with paying and offering to pay Lillian Alaniz's son, Jose Alfredo Alaniz, and her daughter, Nancy Jane Alaniz, for voting in the election. The district court granted the defendants' motions for judgment of acquittal on counts four and five at the close of the prosecution's case. Defendants each received identical sentences: concurrent two-year prison terms on each count, each suspended for three years on unsupervised probation, and a two thousand dollar fine on each count, with provision that as soon as the fine on either count was paid, that on the other count would be remitted.

II. SUFFICIENCY OF THE EVIDENCE

Our discussion of the sufficiency of the evidence will largely be confined to that Some of the facts in this connection are undisputed. Gilberto Uresti was the incumbent county judge of Duval County seeking reelection. Aurora Canales was the wife of the mayor of San Diego, a political ally of Judge Uresti, and sister of the president of the board of trustees of a local independent school district. Elia Garcia was employed by Duval County as social services coordinator for its elderly nutrition program. She was hired by vote of the commissioner's court. On the morning of April 13, 1982 defendants Canales and Garcia, who operated together as a "team" in performing volunteer work for Gilberto Uresti's campaign, drove in this capacity in Canales' car to the low-income housing project in or just outside of San Diego where Alaniz lived, for the purpose of taking Alaniz to vote, absentee, for Uresti in the election. They entered Alaniz's apartment. The subject of Alaniz's voting absentee came up. Alaniz then indicated she wanted money for voting, and it was she who initiated this subject. A discussion followed at the apartment. Defendants then drove Alaniz and two of her adult children, her son, Jose, and her daughter, Nancy, to the Duval County courthouse in San Diego for the purpose of having them vote absentee in the election, and urged them to vote for Uresti, showing them a marked sample ballot. Alaniz and her two children then voted, for Uresti, as they had indicated they would. Defendants then drove the three back to the Alaniz apartment. Thereafter, Lillian Alaniz received, and subsequently cashed on April 16, a thirty dollar check of the "Gilberto Uresti campaign fund" payable to her order and dated April 14, 1983. Nothing on the check itself (or on anything shown to accompany it) indicates what it is for; but the stub remaining in the checkbook has the notation "campaign work." The check is signed by, and it and the stub are wholly in the handwriting of, Antonio Gongora, who was the assistant treasurer of the Uresti campaign.

relating to Lillian Alaniz, as it is apparent that defendants' convictions are based on the claimed payment and offer of payment to her.

Gongora testified that he did not know who Lillian Alaniz was or whether she did any campaign work; that he did not give the check to either defendant or give or send it to Lillian Alaniz; that neither defendant instructed him to write the check; and that he wrote campaign checks only on the instructions of Judge Uresti's secretary, Olga Hinojosa, or Genoveva Garcia, but did not recall who instructed him, or even being instructed, in this instance. Although he signed some campaign checks in blank, he did not do so in this instance, and when, as here, he wrote the date in, he always wrote the date he actually signed a check.

At some point in April 1982 Lillian Alaniz received at her apartment posters and bumper stickers, eight to ten of each, advertising the Uresti campaign. She testified that she did not hand them out or use them, but threw them out on the instruction of her husband, and never did any work for the Uresti campaign. There is no contrary testimony.

The evidence is in dispute in most other relevant respects.

As to the conversation at the Alaniz apartment, Lillian testified, "I told [sic ] them if they were giving any money and they told me that they were not ... so I told them I needed thirty dollars.... I had to make a payment.... [They said] that they didn't have the money then.... [Canales] told me she would help me out with thirty dollars." (R. 176-77.) Under questioning by the court she testified that what she asked "them if they were giving any money for" was "to go vote," that Canales replied "they weren't giving any money," that Lillian then "told [sic] them if they could help me out with thirty dollars," in reply to which Canales "told me that she'd help me out with thirty dollars." (R. 194.) She was asked by the prosecution whether Canales stated "where she was going to get that money or who she was going to check with," and replied, "She was going to check with Gilberto [Uresti]." (R. 195.)

                On cross-examination Lillian answered "Yes" when asked if Canales told her "they did not have any money to pay votes."    (R. 229.)
                

Lillian's son, Jose, testified, "My mother asked them if they were giving any money, and they said that they didn't have any money right now, but they could get the money from Uresti." (R. 247.) He further testified that after they had voted, "Mrs. Canales and Elia Garcia took us to the house and they said that they would bring a check or--you know, they said that they would bring the money later on, or tomorrow." (R. 254.) On cross-examination Jose stated, "They told us that they didn't have the money right now, that they were going to get it if we went to vote," and "Mrs. Canales and Elia [Garcia] said that they could help her [his mother] with thirty dollars, but they had to go with Uresti first." (R. 265.)

Lillian's daughter, Nancy, who had married after the events in issue, testified that defendants "entered the house and they told [sic ] me and my mother and my brother if we wanted to go vote absentee.... Then my mother said that--okay, but she needed a payment, if they could help her out, and then they said 'Yes, we can help you out but if you go vote for Florencio and Uresti.' " (R. 317.) ³ When asked if defendants said anything "when you went home" after voting, Nancy replied, "They just said that they would bring the money either this afternoon or tomorrow." (R. 324.) ⁴ On questioning by the court, Nancy testified:

"The Court: Mrs. Salinas, your mother asked for thirty dollars?

"The Witness: Yes, because she needed help for her payment, and then they said that they would help her out if we would vote for Uresti and the other one that was running." (R. 326.) ⁵

On cross-examination Nancy testified that, in response to her mother's request for thirty dollars, Canales "said that they were not giving no money, but she would talk to Uresti and see what would happen." (R. 329.)

Lillian Alaniz's other daughter, Betty Briones, who was married at the time of the events in issue, also testified for the prosecution. She was present at least a part of the time during the discussion with defendants before her mother, brother, and sister were taken to vote, though she remained at the housing project to take care of her younger siblings. Betty testified, "My mother said that if she had--that she needed so [sic ] money, and Mrs. Canales said that she didn't have it at that time, and then my mother said that she needed thirty dollars for a payment, and Mrs. Canales said that she had to talk to Mr. Uresti about that, but she wouldn't promise anything." (R. 340.) When asked by the court if the response to her mother's statement The defendants' version of these...