U.S. v. Martinez-Nava, MARTINEZ-NAVA and J

• Decision Date: 27 January 1988
• Docket Number: Nos. 87-1106,MARTINEZ-NAVA and J,87-1107,s. 87-1106
• Citation: 838 F.2d 411
• Parties: 24 Fed. R. Evid. Serv. 863 UNITED STATES of America, Plaintiff-Appellee, v. Felipeose Cepeda-Cabada, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 411

838 F.2d 411

24 Fed. R. Evid. Serv. 863

UNITED STATES of America, Plaintiff-Appellee, v. Felipe MARTINEZ-NAVA and Jose Cepeda-Cabada, Defendants-Appellants.

Nos. 87-1106, 87-1107.

United States Court of Appeals Tenth Circuit.

Jan. 27, 1988.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant Felipe Martinez-Nava.

Albert B. Lassen of Lassen, Combs and Kelly, Albuquerque, N.M., for defendant-appellant Jose Cepeda-Cabada.

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

Before LOGAN, ANDERSON, and TACHA, Circuit Judges.

LOGAN, Circuit Judge.

Defendants Jose Cepeda-Cabada (Cepeda) and Felipe Martinez-Nava (Martinez) appeal their convictions for transporting and harboring illegal aliens, in violation of 8 U.S.C. Sec. 1324(a)(2) and (3), as those subsections read before amendment on November 2, 1986, and for aiding and abetting, in violation of 18 U.S.C. Sec. 2. Jointly, defendants argue that the district court (1) wrongly excluded veniremen who lived a substantial distance from the courthouse and (2) gave an improper supplemental instruction to the jury during deliberations. Individually, Cepeda argues that the district court admitted testimony of a prosecution witness in contravention of the court's omnibus pretrial order. Martinez asserts that a mistrial was warranted on two grounds: (1) the prosecutor's reference in opening statement to a codefendant's plea of guilty to the same charges pending against Martinez; and (2) the admission of testimony concerning Martinez' prior transportation of illegal aliens. We reject all of these contentions.

I

The district court excused five veniremen from the jury panel, all of whom lived about 200 miles from the Santa Fe courthouse, after noting that the schedules of the court and of Martinez' counsel necessitated that the trial take place intermittently over the span of several days, and that the onset of winter made travel somewhat dangerous. The excuse of these veniremen is challenged on two grounds.

First, Cepeda challenges the district court's dismissal of two who were Indians, asserting that the resulting racial imbalance required constitutional equal protection inquiry under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson, however, involved prosecutorial use of peremptory challenges that had an adverse impact on the jury's racial makeup. In this case, the court excused the prospective Indian jurors. ¹ And even were we to extend the rationale of Batson to the district court's action, it gave a neutral explanation--travel distance and likely inclement weather--sufficient to defeat Cepeda's equal protection claim. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723.

Defendants next claim that the court violated the Federal Jury Selection & Service Act, 28 U.S.C. Secs. 1861-1877, which requires each district court to devise and implement a plan for random selection of grand and petit juries. Id. Sec. 1863(a). Defendants argue that the refusal to seat the distant jurors deviated from the plan for the District Court of New Mexico, thereby necessitating a new trial. Defendants, however, have failed to meet the procedural requirements of the Act to preserve the statutory claims.

Section 1867(a) sets the time limits and procedure for filing a claim under the Act.

"In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury."

The motion must contain a "sworn statement of facts which, if true, would constitute a substantial failure to comply" with the Act. Id. Sec. 1867(d). Section 1867(e) further provides:

"The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime, the Attorney General of the United States or a party in a civil case may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title."

If a party fails to comply with the statutory procedures, a court may not hear the claim. United States v. Cooper, 733 F.2d 1360, 1366 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984).

Neither defendant filed a timely motion, together with a sworn statement of facts, as required under Sec. 1867(d). Their oral objections do not suffice. We therefore conclude that defendants have not preserved their statutory challenges.

Treating defendants' objection as a general argument that the district court abused its discretion in excusing the jurors, we also find no error. Defendants provide no specific examples of how the district court abused its discretion. Here, because of special circumstances, the district court sought to save the prospective jurors substantial travel at a time of year when inclement weather was likely. The problem of dangerous driving was exacerbated by the probability that the trial would be conducted intermittently over several days, in part because of the previous commitments made by Martinez' counsel. Defendants' speculative argument that the district court should not have excused the prospective jurors does not suggest an abuse of discretion. See United States v. Mason, 440 F.2d 1293, 1298 (10th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165 (1971).

II

Defendants also challenge a supplemental instruction given in answer to an inquiry from the deliberating jury. The need for this supplemental instruction arose because of a difference in wording between the first two counts in the indictment and the district court's original instructions. The indictment charged that defendants "knowingly did transport by vehicle from El Paso, Texas, to Albuquerque, New Mexico, ... an alien not duly admitted by an immigration officer and not lawfully entitled to enter and reside within the United States...." I R. 1 at 1-2. The original instruction did not refer to these specific locations, but required the prosecutor to prove "that the defendant transported or moved or attempted to transport or move the alleged alien...." VII R. 712-13. When faced with this difference, the jury asked the district judge whether transportation within Albuquerque fit the indictment's allegation of transportation from El Paso to Albuquerque. ² Over defendants' objection, the district judge gave the following supplemental instruction:

"Counts I and II of the indictment charge that defendants 'knowingly did transport by vehicle from El Paso, Texas to Albuquerque, New Mexico' certain alleged aliens. You're instructed that any transportation between points in El Paso and points in Albuquerque or between points within El Paso or between points within Albuquerque is comprehended within the language of the indictment quoted above."

VIII R. 731.

Defendants first assert that the supplemental instructions improperly favored the prosecution and thus should have been balanced by repeating instructions favorable to the defense. We do not agree. When a jury expresses difficulty with potentially conflicting instructions, the trial court should clear away the difficulty "with concrete accuracy." United States v. Walker, 557 F.2d 741, 746 (10th Cir.1977) (quoting Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946)). The district court explained in clear detail the answer to the jury's query, and defendants do not seriously argue that the court misstated the law. Further, since the instruction only defined the language of the indictment, it did not improperly favor the prosecution and thus did not necessitate the restatement of instructions favorable to the defense. See United States v. Humphrey, 696 F.2d 72, 75 (8th Cir.1982) (supplemental instruction defining possession not favorable to either side; court had no duty to reinstruct on issues "favorable" to defendant), cert. denied, 459 U.S. 1222, 103 S.Ct. 1230, 75 L.Ed.2d 463 (1983). The district court properly exercised its discretion to rectify the jury's confusion.

Defendants also argue that the supplemental instruction impermissibly expanded the indictment beyond the facts presented to the grand jury and thereby violated their Fifth Amendment rights. The Fifth Amendment guarantees that a defendant may not be tried on charges not contained in the indictment. United States v. Miller, 471 U.S. 130, 142-43, 105 S.Ct. 1811, 1818-19, 85 L.Ed.2d 99 (1985); Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 8-9, 7 S.Ct. 781, 785, 30 L.Ed. 849, 852 (1887). We hold, however, that the supplemental instruction did not impermissibly expand the indictment. The crux of this aspect of the charge against defendants is that they knowingly transported illegal aliens within the United States. That this transportation occurred within Albuquerque, rather than between El Paso and Albuquerque, merely represents further evidentiary details which the indictment need not state. Mims v. United States, 332 F.2d 944, 946 (10th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 158, 13 L.Ed.2d 92 (1964); United States v. Radetsky, 535 F.2d 556, 565 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976). As the Supreme Court recently noted, "A part of the indictment unnecessary to and independent from the allegations of the offense proved may normally be treated as a 'useless averment' that 'may be ignored.' " Miller, 471 U.S. at 136, 105 S.Ct. at 1815 (quoting Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 534, 71 L.Ed. 793 (1927)). This sharpening of detail concerning where the...