U.S. v. Maseratti

Decision Date27 August 1993
Docket Number91-2088 and 91-2332,Nos. 90-2783,s. 90-2783
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael MASERATTI, Gabriel Ruiz, Miguel Rocha, Juan Manual Zamora, Johnny Davis, Jose Silva, David Pieratt, Bonifacio Filoteo, Deborah Ann Garza, Severo Garza, Jr., and Ramiro Gonzales Alvarado, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Johnny DAVIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roque Urdiales GARCIA, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

David Cunningham, Houston, TX (court appointed), for Maseratti.

Lee Wilson, Houston, TX (court appointed), for Ruiz.

John Garcia, Houston, TX (court appointed), for Rocha.

Ralph R. Martinez, Houston, TX (court appointed), for Silva.

Deborah Gottlieb, Houston, TX, for Pieratt.

Thomas D. Moran, Houston, TX (court appointed), for Filoteo.

Floyd J. Fernandez, Houston, TX (court appointed), for D. Garza and S. Garza.

Sylvia Yarborough, Houston, TX (court appointed), for Alvarado.

Robert Fickman, Schaffer, Lambright, Odom & Sparks, Houston, TX, for Ayala.

Howard Waldrop, Texarkana, TX (court appointed), for Zamora.

David R. Bires, Houston, TX and Ralph S. Whalen, Jr., New Orleans, LA, for Davis.

Michael B. Charlton, Houston, TX (court appointed), for Garcia.

Mervyn Hamburg, U.S. Dept. of Justice, Washington, DC, Paula C. Offenhauser, Asst. U.S. Atty. and Ronald G. Woods, U.S. Atty., Houston, TX, for the U.S.

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

Before REAVLEY, DUHE, and BARKSDALE, Circuit Judges.

DUHE, Circuit Judge:

Twelve of 28 defendants challenge their drug conspiracy convictions arising out of a large marijuana and cocaine enterprise. We affirm. Eight also contest their sentences. We vacate six of their sentences and remand those six for resentencing.

Background

This case involves a very large and long lasting drug conspiracy. In a 40 count indictment, the Appellants, along with 16 others, were charged with conspiracy to possess cocaine with intent to distribute (Count 1), conspiracy to possess marijuana with intent to distribute (Count 2), conspiracy to import cocaine (Count 3), possession of cocaine with intent to distribute (Counts 4, 9, 26, 29), distribution of cocaine (Counts 5, 10, 27), possession of marijuana with intent to distribute (Counts 6, 12), distribution of marijuana (Counts 8, 16), importation of cocaine (Count 31), use of the telephone to facilitate drug trafficking (Counts 13-15, 17-25, 28-30, 32-38), continuing criminal enterprise (Count 40), and travel in interstate commerce to facilitate drug trafficking (Counts 7, 11), all in violation of 21 U.S.C. Secs. 841(a)(1), 846, 963, 843(b), and 848, and 18 U.S.C. Sec. 1952.

Appellant Roque Garcia operated this extensive marijuana and cocaine trafficking enterprise in Houston. Appellants Zamora, Rocha, Silva, Pieratt, and Ruiz at various times assisted in the distribution of the drugs. For most of the conspiracy's duration Garcia used an apartment in Houston as his headquarters, but the drugs were stored elsewhere, including the homes of Silva and Zamora. Appellants Alvarado and Filoteo supplied some drugs, and appellants Severo and Deborah Garza maintained a supply of marijuana for the enterprise at their home. Appellants Davis and Maseratti were regular customers of the enterprise.

By means of surveillance, a pen register, and a wire tap, the DEA closely observed the Garcia enterprise for approximately a year. At various times during the DEA's investigation, arrests were made and drugs were confiscated. The DEA was careful, however, to stage the arrests so that they appeared not to be connected to the surveillance. By the time all was said and done, the DEA had indicted 28 persons connected with the Garcia enterprise. After a jury trial, all Appellants were convicted on all counts in which they were charged.

The Appellants raise numerous claims on appeal. They contend (1) the government's exercise of peremptory challenges violated the Fifth Amendment, (2) the court's refusal to give a buyer-seller jury instruction was error, (3) the court's refusal to dismiss a juror who, during the trial, applied for a government job was error, (4) the importation conspiracy was improperly joined with the domestic conspiracies, (5) Appellant Davis' car was unlawfully searched, (6) the wiretap order was unlawfully issued, (7) a fatal variance exists between the conspiracies charged and the conspiracies proven, (8) the evidence was insufficient to support the convictions and (9) the sentences were unlawfully imposed. We consider each in turn.

I. Batson Challenge. The Appellants argue that the government used three of its peremptory strikes to exclude prospective jurors; two black females, and one Hispanic female, solely because of their race and ethnicity in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and the Fifth Amendment. Appellants objected to the strikes and the prosecutor gave the following explanations:

One black woman was struck because "she appeared to be sleeping during part of the voir dire." The second black woman was struck because she also was not paying attention during the voir dire, and because the prosecutor did not like the fact that she was a City of Houston employee. The Hispanic woman was struck because:

It was my impression from my experience in Hispanic culture that she might tend to be sympathetic toward Debbie Garza's predicament in that she basically is doing what the male in the species is telling her to do, and might be too sympathetic....

The district court overruled Appellants' Batson objection.

The Supreme Court held in Batson that a defendant can establish an equal protection violation based on the government's use of peremptory challenges to remove black potential jurors in his case. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. If the defendant establishes a prima facie case that the prosecutor used peremptory challenges to remove potential jurors because of their race, the burden shifts to the prosecutor to provide race neutral explanations. The court must then determine, in light of all of the facts and circumstances, whether the defendant has carried his burden to establish purposeful discrimination. Id. at 94-98, 106 S.Ct. at 1721-24.

When Appellants objected to the prosecutor's exercise of peremptory challenges in this case, the court, without expressly determining whether a prima facie case was made out, asked the prosecutor to explain his challenges. In Hernandez v. New York, --- U.S. ----, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), the Supreme Court stated that "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Id. --- U.S. at ----, 111 S.Ct. at 1866.

In evaluating the race-neutrality of an attorney's explanation, we must determine whether the challenges violate the Fifth Amendment as a matter of law. Id. --- U.S. at ----, 111 S.Ct. at 1866. Proof of racially discriminatory intent or purpose is required to show a violation of the Fifth Amendment. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). "Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group." Hernandez, --- U.S. at ----, 111 S.Ct. at 1866 (citations omitted).

Before addressing the merits of Appellants' argument, however, we address the matter of timeliness. The trial court questioned the timeliness of Appellants' Batson objection because they asserted their objection after the unselected venirepersons had been dismissed. One defense lawyer voiced his impression that a Batson claim was timely until the jury was sworn. The court's subsequent general denial of relief does not indicate whether timeliness was the basis for its ruling. No one requested clarification.

The notion that a Batson claim is timely until the jury is sworn is incorrect. This Court has held "that to be timely, the Batson objection must be made before the venire is dismissed and before the trial commences." United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir.1989), cert. denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990). Therefore, this Batson claim can be dismissed as untimely. 1 Even considering the merits of the claim, however, we conclude that the district court's ruling is correct.

While the prosecutor's explanation with regard to the Hispanic woman appears on its face to offend Hernandez, the fact that he seated another Hispanic female and that the prosecutor himself is Hispanic shows that this challenge was particular to this female and not a "stereo typical assumption" or a "gross racial stereotype or anecdotal generalization" about Hispanics. See Hernandez, --- U.S. at ----, 111 S.Ct. at 1867; United States v. Greene, 36 M.J. 274 (C.M.A.1993).

As to the two black women excluded, the explanations given by the prosecutor were clearly race-neutral, and Appellants' arguments are without merit.

II. Buyer-Seller Instructions. Ten of the twelve Appellants argue that the trial judge erred when he refused to give a buyer-seller instruction to the jury in the course of his discussion of the law of conspiracy. We disagree.

During the charge conference, the Appellants requested a charge based on United States v. Hughes, 817 F.2d 268, 273 (5th Cir.1987), cert denied, 484 U.S. 858, 108 S.Ct. 170, 98 L.Ed.2d 124 (1987), which included language to the effect that the existence of a mere buyer-seller...

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