U.S. v. Martinez-Salazar

• Decision Date: 24 April 1995
• Docket Number: D,MARTINEZ-SALAZA,No. 94-10158,94-10158
• Citation: 146 F.3d 653
• Parties: 98 Cal. Daily Op. Serv. 4099, 98 Daily Journal D.A.R. 5626 UNITED STATES of America, Plaintiff-Appellee, v. Abelefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 653

146 F.3d 653

98 Cal. Daily Op. Serv. 4099, 98 Daily Journal

D.A.R. 5626

UNITED STATES of America, Plaintiff-Appellee, v. Abel MARTINEZ-SALAZAR, Defendant-Appellant.

No. 94-10158.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 16, 1994.

Submission Vacated April 24, 1995.

Re-argued and Submitted Nov. 21, 1996.

Submission Vacated May 1, 1997.

Resubmitted July 17, 1997.

Decided May 28, 1998.

Michael D. Gordon, Assistant Federal Public Defender, Phoenix, Arizona, for Defendant-Appellant.

Vincent Q. Kirby, Assistant U.S. Attorney, Phoenix, Arizona, for Plaintiff-Appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CR-93-00284-EHC.

Before: REINHARDT, RYMER and HAWKINS, ^* Circuit Judges.

Opinion by Judge MICHAEL DALY HAWKINS; Partial Concurrence and Partial Dissent by Judge RYMER.

MICHAEL DALY HAWKINS, Circuit Judge.

FACTS

Abel Martinez-Salazar ("Martinez-Salazar") was tried and convicted, along with a codefendant, of: (1) conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846; (2) possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i); and (3) using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) ("gun count"). Martinez-Salazar appeals his convictions on all counts, claiming insufficiency of the evidence, improper jury instruction, and constitutional error in the jury selection process.

I. Sufficiency of the Evidence

Martinez-Salazar appeals the denial of his motion for acquittal as to his gun count conviction on the basis of insufficiency of the evidence.

It is clear under Bailey v. United States, 516 U.S. 137, 143-44, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that Martinez-Salazar did not "use" a firearm, in the sense of "actively employing" it, so the only issue here is whether there was sufficient evidence to support his conviction under the "carry" prong of § 924(c)(1). We held in United States v. Staples, 85 F.3d 461, 464 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 318, 136 L.Ed.2d 233 (1996), that a defendant "carries" a firearm in an automobile as long as it is " 'about' his person, within reach, and immediately available for use." Here, Agent Rodriguez testified that Martinez-Salazar said that the gun was always in the car; the gun was located under the front passenger seat next to where the heroin had been; and Martinez-Salazar admitted that he sat in that seat on the way to the park meeting. The dispute at trial as to the gun count was not whether the gun was out of Martinez-Salazar's reach or otherwise unavailable to him, but whether he knew that it was in the car. There was ample evidence to permit the jury to conclude that he did.

II. Jury Selection

Following the Supreme Court's seminal decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), courts have wrestled with the constitutional implications of jury selection in criminal cases. In United States v. Annigoni, 96 F.3d 1132 (9th Cir.1996) (en banc), for example, we surveyed the history of and rationale underlying peremptory challenges and held that the erroneous denial of a peremptory challenge was fundamental error requiring automatic reversal. Here we hold that the erroneous refusal to excuse a juror for cause violates a defendant's Fifth Amendment due process rights when it forces the use of a peremptory challenge to exclude that juror and, consistent with Annigoni, that such a denial requires automatic reversal.

Martinez-Salazar and his codefendant were allotted ten peremptory challenges to be exercised jointly in the selection of twelve jurors. See Fed.R.Crim.P. 24(b). They received one additional peremptory challenge to be used in the selection of the alternate juror. See Fed.R.Crim.P. 24(c).

Prior to trial, the district court gave prospective jurors a written questionnaire to complete. In response to a question essentially asking if the prospective juror knew of anything that might affect his ability to serve impartially, prospective juror Don Gilbert ("juror Gilbert") wrote the following:

"I would favor the prosecution."

When the jury venire was assembled, the district court engaged in the following colloquy with Mr. Gilbert:

THE COURT: On your questionnaire, you said in question number eight, the answer: "I would favor the prosecution." Is that--are you saying that you would not be able to listen to the evidence, and decide what happened, and follow the instructions of the Court, but would simply vote for a conviction because people are charged with drug crimes?

JUROR GILBERT: No. I think what I'm saying is all things being equal, I would probably tend to favor the prosecution.

THE COURT: You understand that one of the things the jury will be told, of course, is that the prosecution, the Government has the burden of proving someone guilty beyond a reasonable doubt. And I suppose realistically, all things being equal wouldn't be beyond a reasonable doubt. Would you disagree with that?

JUROR GILBERT: No, I guess I wouldn't disagree with that.

THE COURT: I guess the important question is--and perhaps let me ask it this way. It's kind of my question. But if you were the defendants here charged with this crime, and all of the jurors on your case had your background and your opinions, do you think you'd get a fair trial?

JUROR GILBERT: I think that's a difficult question. I don't think I know the answer to that.

Martinez-Salazar's trial counsel, Mr. Garcia, then followed up by questioning juror Gilbert:

MR. GARCIA: If you were to error [sic], where would you feel more comfortable erring, in favor of the prosecutor or the defendant?

JUROR GILBERT: Well, again, not having heard any evidence in the case, I think that's kind of hard to say. I think, as I indicated on here, I would probably be more favorable to the prosecution. I suppose most people are. I mean they're predisposed. You assume that people are on trial because they did something wrong.

THE COURT: Well, you see, you heard me out there when I started the trial. That's not the general proposition. If it is, it's wrong. It's contrary to our whole system of justice. When people are accused of a crime, there's no presumption--

JUROR GILBERT: There's a--

THE COURT:--of guilty. The presumption is the other way. That's the way our system--

JUROR GILBERT: I understand that in theory.

THE COURT: Okay, all right, all right. Why don't you wait, and we'll be done here in a few minutes, okay? Thank you very much.

The record reflects no further conversations between juror Gilbert and the district court or counsel.

At the completion of the above inquiry, Martinez-Salazar's counsel challenged juror Gilbert for cause. Counsel for the government opposed the challenge, arguing, "Your honor, although he did have some opinions, he did indicate to you that he would follow your instructions and apply them accordingly." The district court then refused the requested challenge for cause, stating: "You know about him and know his opinions. He said he did say that he could follow the instructions, and he said he--'I don't think I know what I would do,' et cetera. So I think you have reasons to challenge him if you--strike him if you choose to do that...." Defendants were thus forced to use one of their peremptory challenges to strike juror Gilbert and eventually exhausted their allotted eleven.

A. History of the Appeal on this Issue

This appeal itself has something of a history. When this case first came to this Court, Martinez-Salazar's then counsel took an Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), ¹ position with respect to whether the district court's refusal to dismiss juror Gilbert created a Sixth Amendment violation. Presumably, counsel took this position because of Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), which held that the erroneous denial of a challenge for cause that requires counsel to use a peremptory challenge does not create a Sixth Amendment violation. See also United States v. Baker, 10 F.3d 1374, 1404 (9th Cir.1993). Because Ross, by its language, did not decide whether such an erroneous denial constitutes a Fifth Amendment violation, we ordered supplemental briefing. ² We also relieved Martinez-Salazar's then-counsel and appointed new counsel.

B. Analysis

1. The District Court's Refusal to Exclude a Properly Cause-Challenged Juror

Martinez-Salazar claims that the district court should have excused juror Gilbert for cause because of his admitted bias in favor of the prosecution. We agree.

A juror is deemed impartial "only if he can lay aside his opinion and render a verdict based on the evidence presented in court...." Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Because the " 'determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge,' " we do not disturb a district court's decision to deny a challenge for cause absent a showing of abuse of discretion or manifest error. United States v. Egbuniwe, 969 F.2d 757, 762 (9th Cir.1992) (quoting Ristaino v. Ross, 424 U.S. 589, 595, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976)).

"When a juror has stated that she can decide a case impartially," a district court does not abuse its discretion in not excusing him for cause. United States v. Poschwatta, 829 F.2d 1477, 1484 (9th Cir.1987), overruling on other grounds recognized by United States v. Powell, 936 F.2d 1056, 1064 n. 3 (9th Cir.1991). We have upheld a district court's decision not to dismiss for cause a juror who initially admits bias as long as he or she ultimately asserts an ability to be fair and impartial. See, e.g., United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir.1995) (juror initially said he ...