U.S. v. Esparsen

Decision Date18 April 1991
Docket Number90-2059,90-2054,Nos. 90-2043,s. 90-2043
Parties32 Fed. R. Evid. Serv. 1191 UNITED STATES of America, Plaintiff-Appellee, v. Anthony ESPARSEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kelly ESPARSEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert McFADDEN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant Anthony Esparsen.

Paul J. Kennedy, Albuquerque, N.M., for defendant-appellant Kelly Esparsen.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant Robert McFadden.

Robert J. Gorence, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and James D. Tierney, Asst. U.S. Atty., with him on the briefs), Albuquerque, N.M., for plaintiff-appellee U.S.

Before LOGAN and MOORE, Circuit Judges, and SPARR, District Judge. *

JOHN P. MOORE, Circuit Judge.

Defendants Anthony Esparsen, Kelly Esparsen, and Robert McFadden appeal their jury convictions, in the United States District Court for the District of New Mexico, on multiple counts involving cocaine distribution. We consolidate the three cases into one opinion because of some overlap in the issues. Initially, all three defendants complain that the prosecution exercised its peremptory challenges in a prima facie discriminatory manner against Hispanic venire members. Mr. McFadden questions the sufficiency of the evidence to support his conviction for aiding and abetting three cocaine sales. All three defendants question the sufficiency of the evidence on the charge of conspiracy to distribute over 500 grams of cocaine, and Messrs. McFadden and Anthony Esparsen raise a few related evidentiary questions. Finally, Mr. Anthony Esparsen argues his supervised release sentence exceeds the statutory maximum. We affirm the trial court's finding that no prima facie case of discrimination existed, uphold the jury's convictions on the substantive counts, and remand for recalculation of Mr. Anthony Esparsen's supervised release term.

Between December 11, 1987, and February 1, 1989, defendants were involved in five sales of less than 500 grams of cocaine to government agents in New Mexico. Defendants were also implicated in discussions of larger sales with an agent. On December 11, 1989, a jury was seated over defendants' objections to the prosecution's peremptory challenges. The jury convicted defendants on multiple counts of distributing less than 500 grams of cocaine, and of conspiracy to distribute over 500 grams of cocaine. The court sentenced Kelly Esparsen to forty-two months in prison and five years of supervised release; Anthony Esparsen to sixty months in prison and six years of supervised release; and Robert McFadden to sixty months in prison and five years of supervised release.

I. Prosecution's Use of Peremptory Challenges

Defendants assert that the prosecution used four of its six peremptory challenges and its one challenge against an alternate juror to strike Hispanic members of the venire. The trial court erred, they complain, in finding that such action does not constitute a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). They argue the prosecution must provide a neutral explanation for its strikes according to Batson 's equal protection framework.

A. Prima Facie Standard

To establish a prima facie case: (1) the defendant must show he is a member of a cognizable racial group, and that the prosecution has exercised peremptory challenges to remove members of a particular race from the venire; 1 (2) the defendant is entitled to rely on the fact that peremptory challenges are a jury selection practice which permits discrimination by those who wish to discriminate; and (3) the defendant must show that these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire members from the petit jury on account of their race. Id. at 96, 106 S.Ct. at 1722.

The Batson Court suggested a few possible indicators of a prima facie case, but entrusted the task of fleshing out this skeletal framework to trial courts experienced in voir dire. Id. at 97, 106 S.Ct. at 1723. Relevant factors could include disproportionate impact, id. at 93, 106 S.Ct. at 1721; a pattern of strikes against jurors of a particular race; or the prosecutor's questions and statements during voir dire. Id. at 97, 106 S.Ct. at 1723. We therefore review the trial court's determination with deference to its firsthand observation of the circumstances of each case.

B. Applying the Standard

We hold that the trial court correctly found no prima facie evidence of discrimination, although we base our ruling on different reasoning. The trial judge responded to defendants' objection by stating that it was not obvious to him, either from their names or appearance, that the Esparsens were Hispanic, and that some Hispanics remained on the final jury. When defendants offered to supplement the record with proof that the Esparsens were indeed Hispanic, the trial judge emphasized that his ruling was based on the fact that "other Hispanics ... remained on the panel that could have been challenged that were not challenged."

The trial court conducted voir dire for the thirty-six-member venire. It excused three members, Thomas C. Blisard, Lucille E. Cardella, and Elmer C. Yazzie, for cause. The prosecution used its first and third peremptory challenges against Susan S. Kennedy and Mary C. Pennington. With the other four of its six peremptory challenges, the prosecution struck Angie Armijo, Margaret A. Martinez, Josephine L. Lucero, and Cynthia M. Castillo, whom defendants assert are Hispanic. The prosecution first tried to use its one challenge against an alternate to strike Michael Zamora, who was already on the panel, but eventually struck alternate Robert Rivera. At trial, defendants claimed that Mr. Rivera was Hispanic. On appeal, they also contend he was the only Hispanic alternate, 2 and that Mr. Zamora is Hispanic. The following persons sat on the final jury: Carol A. Manning, Steve A. Gutierrez, Cynthia A. Longenbaugh, Pierre J. Carrica, Harry D. Heilman, Marleen E. Dugger, Kay C. Holt, Roy L. Cox, Juanita R. Hancock, Michael A. Zamora, Tom Nez, and an alternate because Jacki K. Anderson did not appear. On appeal, the government asserts that three of those persons, Mr. Gutierrez, Mr. Carrica, and Mr. Zamora, are Hispanic.

This court has applied Batson twice, but neither case provides specific guidance for the present situation. We concluded in United States v. Chalan, 812 F.2d 1302, 1313-14 (10th Cir.1987), that the government's peremptory strike of the last potential American Indian juror created a prima facie case of discrimination. We noted that the striking of a single juror 3 will not always constitute a prima facie case, but, when no members of defendant's race remain because of that strike, it does. In this case, we cannot ascertain from the record that no Hispanics remained on the final jury. In United States v. Brown, 817 F.2d 674, 675-76 (10th Cir.1987), we reviewed the adequacy of the prosecution's explanation of its actions at a trial court hearing. We assumed, as the trial court apparently did, a prima facie case existed based on the prosecution's challenge of all potential Afro-American jurors, and its phone call to the jury clerk seeking to discuss Afro-Americans on the venire. In this case, the prosecution did not conduct voir dire and requested no additional questions which signaled racial motivations.

Defendants have failed to present a record which raises an inference that the prosecution struck potential jurors because they were Hispanic. The burden of creating a record of relevant facts belongs to the defendants. United States v. Dawn, 897 F.2d 1444, 1448 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1520 (6th Cir.1988).

1. Number of Hispanics Struck

Defendants assert that the prosecution used five out of seven strikes and the first mistaken alternate strike against Hispanics, but they fail to establish with certainty the racial identity of the venire members struck by the prosecution. Defendants' claim that Ms. Armijo, Ms. Martinez, Ms. Lucero, Ms. Castillo, Mr. Rivera, and Mr. Zamora are Hispanic appears to rest solely on their surnames. While such an inference seems plausible, it rests on the assumptions that these surnames are Hispanic, and that people with Hispanic surnames are Hispanic. For instance, some of the four women might have Hispanic surnames only because they married Hispanics. Although we recognize that racial identity may be clear from appearances during voir dire, we cannot sustain a Batson challenge on conjecture. Moreover, even appearances do not always provide a reliable guide, as shown by the trial court's initial opinion that the Esparsens did not appear Hispanic. See United States v. Bucci, 839 F.2d 825, 832 (1st Cir.), cert. denied, 488 U.S. 844, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988) (claim that prosecutor's peremptory challenges violated Sixth Amendment rejected because no evidence presented on which surnames are Italian-American and what surnames indicate about ethnicity or race).

Defendants rely on the Supreme Court's statement in Castaneda v. Partida, 430 U.S. 482, 495, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977), that "Spanish surnames are just as easily identifiable as race was from the questionnaires in Alexander [v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) ] or the notations and card colors in Whitus v. Georgia, [385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) ] ... and in Avery v. Georgia, [345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953...

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