U.S. v. Cerrato-Reyes, CERRATO-REYE

• Decision Date: 05 May 1999
• Docket Number: J,Nos. 98-4059,98-4082 and 98-4103,CERRATO-REYE,s. 98-4059
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emilioose Manuel Osuna-Reyes, Jessica Ann Mejia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1253

176 F.3d 1253

UNITED STATES of America, Plaintiff-Appellee, v. Emilio CERRATO-REYES, Jose Manuel Osuna-Reyes, Jessica Ann

Mejia, Defendant-Appellant.

Nos. 98-4059, 98-4082 and 98-4103.

United States Court of Appeals, Tenth Circuit.

May 5, 1999.

Bel-Ami de Montreux, Montreux Freres, P.C., Salt Lake City, Utah, for Emilio Cerrato-Reyes, Defendant-Appellant.

Stephen R. McCaughey, McCaughey & Metos, Attorneys at Law, Salt Lake City, Utah, submitted a brief for Jose Manuel Osuna-Reyes, Defendant-Appellant. ¹

Robert H. Copier, Attorney at Law, Salt Lake City, Utah, for Jessica Ann Mejia, Defendant-Appellant.

Richard D. McKelvie, Assistant United States Attorney (Paul Warner, United States Attorney, with him on the briefs), Salt Lake City, Utah, for United States of America, Plaintiff-Appellee.

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Emilio Cerrato-Reyes appeals his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendants-Appellants Jose Manuel Osuna-Reyes and Jessica Ann Mejia appeal from their sentences after being convicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and we affirm.

I. Background

Mr. Cerrato-Reyes and Mr. Osuna-Reyes were tried jointly on charges arising from a drug transaction. Mr. Cerrato-Reyes was found guilty by the jury, but Mr. Osuna-Reyes' case ended in a mistrial after the jury was unable to reach a verdict. Mr. Osuna-Reyes was subsequently found guilty in his second jury trial. Ms. Mejia was also involved in the drug transaction. She entered into a plea agreement with the government and pled guilty to the offense.

In this appeal, Mr. Cerrato-Reyes contends that the district court erred (1) in denying his motion for a mistrial based on juror bias, and (2) in failing to clearly state in its entrapment instruction that the government carried the burden of disproving entrapment. Mr. Osuna-Reyes challenges the district court's decision to enhance his sentence for obstruction of justice, and Ms. Mejia argues that the court erred in failing to force the government to move for a downward departure based on her substantial assistance.

II. Emilio Cerrato-Reyes

A. Juror Bias

Mr. Cerrato-Reyes claims that the district court erred in denying his motion for a mistrial based on a juror's dishonesty during voir dire and/or the juror's actual or implied bias. We review the denial of a motion for a mistrial or for a new trial for abuse of discretion. See United States v. Begay, 144 F.3d 1336, 1339 (10th Cir.1998); United States v. Ailsworth, 138 F.3d 843, 846 (10th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 221, 142 L.Ed.2d 181 (1998). However, when the court's decision rests on an issue of law, we review de novo. See Ailsworth, 138 F.3d at 846.

After Mr. Cerrato-Reyes had been convicted and during the jury's deliberations on Mr. Osuna-Reyes' case, one of the jurors approached the judge and expressed fear for her safety, based on a prior experience with drug dealers while on a mission in Texas. The next day, the court informed counsel of the encounter with the juror and decided to question the juror on the record. The juror explained that several Hispanics had moved in one block south of her house. She was disturbed that "25 of them moved into one house," IV Tr. at 127, and was concerned about the constant police presence in her fiancee's neighborhood, where some of the events at issue took place. She explained that she had become frightened in this case involving drug charges when she remembered a prior incident where some African-American crack cocaine dealers came to her door and demanded money. She was fearful because she was required to put her name and address on a juror parking slip and she did not know who had access to that information.

In recounting her recognition of Mr. Osuna-Reyes, the juror explained:

During the--when the witnesses were--I don't remember which witness, but I glanced over, and he was just glaring. And I realize that that's just the culture, the way they think, the way they act, their dispostions [sic], because I've worked with Spanish before. Latinos are just--they have a tendency to just get this glazed look, and that's just the way they are. I don't know why. I mean we all do it. But just the way he was looking at us, and he was looking right at me. And I was like, "Okay. I'm not paranoid. I'm just going to ignore him."

Id. at 122-23. She also opined that the drug dealers she had encountered were "clueless" and likely had poor memories. Still, she steadfastly maintained that she was not prejudiced; that "Hispanics are just as innocent and good as the next person," id. at 124; and that her experiences working with Hispanics while on a mission in Texas were mostly positive. In addition to her concern about twenty-five Hispanics in one house, the juror was also disturbed by the presence of "all kinds of hoodlums" at the house of her unemployed next-door neighbor, a Caucasian. Id. at 128. She maintained that she was able to differentiate between her experience with the crack cocaine dealers and the defendants and witnesses at trial. Finally, she asserted that her prior experiences made her more open-minded than her fellow jurors, and that she was not fearful during deliberations.

Mr. Cerrato-Reyes claims that this juror's alleged dishonesty during voir dire, in failing to respond to the court's questions both about prejudice against Hispanics and about prior experiences with drug dealers, prevented him from raising a challenge for cause. In addition, he asserts that even if the juror honestly but mistakenly failed to respond, her answers when questioned in chambers by the court and by counsel demonstrate an actual or an implied bias against Hispanics and drug dealers, or both.

1. The McDonough Power Test

Under the Sixth Amendment to the U.S. Constitution, an accused has a right to trial by an impartial jury. Though no trial can be perfect, see Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), "[o]ne touchstone of a fair trial is an impartial trier of fact--a jury capable and willing to decide the case solely on the evidence before it." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (quotation marks and citation omitted); see Gonzales v. Thomas, 99 F.3d 978, 983 (10th Cir.1996). "Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors.... The necessity of truthful answers ... is obvious." McDonough Power, 464 U.S. at 554, 104 S.Ct. 845.

Mr. Cerrato-Reyes maintains that the juror was untruthful by failing to respond when the court asked whether any of the members of the venire "has perhaps a bias in favor or a prejudice against people of Hispanic descent," II Tr. at 59, and when the court asked whether anyone had "ever been involved in a criminal matter, either as a person accused or as a victim or as a witness, ... in a case involving charges of drug dealing." Id. at 46. In such a situation, under the test articulated by the Supreme Court in McDonough Power, a new trial is necessary if Mr. Cerrato-Reyes can "first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." McDonough Power, 464 U.S. at 556, 104 S.Ct. 845. We have held that this test is not satisfied by showing that a juror provided a mistaken, though honest answer, but rather "is directed at intentionally incorrect responses." Gonzales, 99 F.3d at 984.

The district court held that Mr. Cerrato-Reyes was unable to meet either part of the McDonough Power test regarding the juror's answers to the voir dire questions about racial prejudice or involvement in a criminal matter. The court noted that, when questioned in chambers, the juror "stated several times that she had no such prejudice and that her experience with Hispanics while on a mission had been largely favorable," Aplt. Brief app. 2 at 3, and concluded that she answered the question about prejudice against Hispanics honestly and correctly. The court then went on to consider the juror's failure to disclose her encounter with drug dealers in Texas. With respect to the first part of the McDonough Power test, the court found that, although the juror arguably should have provided this information, her failure to do so was at most a good faith mistake. Although unnecessary, the court also looked at the second part of the test and concluded that Mr. Cerrato-Reyes failed to demonstrate that the information would have provided a basis for a challenge for cause. The court reached this conclusion by noting the dissimilarities between the incident in Texas and the circumstances of the offense for which Mr. Cerrato-Reyes was being tried.

The question of the juror's honesty during voir dire and in chambers is a factual determination which we review for clear error, see Gonzales, 99 F.3d at 985, noting that "only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Having reviewed the record, we cannot say that the district court clearly erred in finding that the juror either answered the voir dire questions honestly or made a good faith mistake. Her repeated assertions that she was not prejudiced against Hispanics lend weight to this finding, and unlike the district judge, we were not present to observe her demeanor and tone of voice. We do not agree with Mr. Cerrato-Reyes that the juror's statement that she...