U.S. v. Mendoza

• Decision Date: 20 December 2007
• Docket Number: No. 06-2999.,06-2999.
• Citation: 510 F.3d 749
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. José MENDOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

510 F.3d 749

UNITED STATES of America, Plaintiff-Appellee, v. José MENDOZA, Defendant-Appellant.

No. 06-2999.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2007.

Decided December 20, 2007.

Lesley J. Miller Lowery, Office of the United States Attorney, Fort Wayne, IN,

David E. Hollar (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Andrea E. Gambino (argued), Gambino & Associates, Chicago, IL, for Defendant-Appellant.

Before POSNER, KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

A jury found Jos é Mendoza guilty of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1). Mendoza challenges the sufficiency of the government's evidence against him and the district court's procedure for identifying alternate jurors. He also argues that the district court erroneously presumed that a sentence within the guidelines range would be reasonable. We affirm.

I.

The evidence presented by the government, viewed in the light most favorable to it, demonstrated the following: In early 2004 the head of the drug unit of the Goshen, Indiana Police Department ("GPD") asked Adam Mingucha whether he could buy narcotics from Mendoza. Mingucha had previously "worked off" drug possession charges by assisting the GPD as a confidential informant in two other cases. At this time, however, there were no pending charges against Mingucha. He agreed to help because he needed the money.

Mingucha told the GPD that he knew Mendoza and that he could likely purchase a pound of either methamphetamine ("meth") or marijuana from him. When Mendoza came into the auto repair shop where Mingucha worked in February 2004, Mingucha asked if he could buy a pound of meth. Mendoza responded that it would take a couple of weeks. Two weeks later Mendoza called Mingucha to tell him the meth was ready and at that time they agreed on a price of $5,500. Mingucha then informed the GPD of the pending sale.

The "pickup" was scheduled for March 5, 2004. Mingucha first met with GPD officers and a special agent from the Drug Enforcement Agency ("DEA") in the parking lot of a doctor's office. The officers searched Mingucha and his car, and gave him a hidden recording device and $5,500 cash. Mingucha then called Mendoza to tell him he had the money and was ready to make the purchase. Mendoza instructed Mingucha to meet him at a house. While en route, Mendoza called again and changed the meeting place to a gas station. Police followed Mingucha at a distance, observing him at all times.

Mendoza and Mingucha met at the gas station and Mendoza instructed Mingucha to follow him in his car, without revealing the destination. Mingucha then followed Mendoza to the parking lot of a grocery store. Mendoza arrived first and parked on one side of the building; Mingucha parked on the opposite side. The contingent of law enforcement officers following Mingucha parked in various places, but none of them individually could see the entirety of what followed. Mendoza walked up to the driver's side of Mingucha's car and Mingucha handed him $5,500 cash through the window. Mendoza then told Mingucha to drive to the other side of the store where he had parked. Mingucha did so and parked alongside a red Jeep that had its hood up. Mendoza came around from the front of the Jeep and entered Mingucha's car on the passenger side, sat down, and placed a package on the seat.

After Mendoza got out of the car, Mingucha drove directly back to the doctor's office to meet with the GPD. The officers searched Mingucha and his car again, finding nothing other than the package and the absence of the money. The DEA agent sent the package to a DEA laboratory where a chemist found that it was a mixture containing 16%, or 73.7g, amphetamine.

At the beginning of his trial on the charge of distributing amphetamine in violation of 21 U.S.C. § 841(a)(1), the district court informed counsel that it intended to select 16 tentative jurors to hear the evidence and, after closing arguments, designate four at random to be the alternates. During voir dire, the district court noted that this system "seems to work very well for everybody, and it has been in use here for close to 25 years." The procedure, however, happened to result in the clerk randomly designating the one Hispanic among the 16 tentative jurors as an alternate juror. The jury then found Mendoza guilty. Mendoza filed motions for judgment of acquittal and for a new trial under Federal Rules of Criminal Procedure 29 and 33, and the district court denied both motions.

The district court filed a sentencing memorandum and held a sentencing hearing in July 2006. Although the memorandum did not suggest that the district court presumed a sentence within the guidelines range would be reasonable, at the hearing the district court said the following about the presumptive effect of the guidelines:

There is a discussion presented by the able defense counsel and one that this court must work through under the current status of the law, and that is the consideration of the case, not only under the Guidelines, which are presumptively correct, but also under the statute under [sic] 18 U.S.Code Section 3553(a).

The district court sentenced Mendoza to 135 months' imprisonment, a sentence at the bottom of the guidelines range. Mendoza timely appeals both his conviction and sentence.

II.

A.

Mendoza first argues that the evidence against him is insufficient to prove that he knowingly or intentionally distributed a controlled substance in violation of 21 U.S.C. § 841(a)(1). In order to prove Mendoza was guilty of distribution of amphetamine, the government had to show that Mendoza distributed amphetamine to a third party, that he did so knowingly and intentionally, and that he knew he was distributing a controlled substance. See United States v. King, 356 F.3d 774, 779 (7th Cir.2004). We review challenges to the sufficiency of the evidence to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See United States v. Sachsenmaier, 491 F.3d 680, 683 (7th Cir.2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This "highly deferential standard," United States v. Womack, 496 F.3d 791, 794 (7th Cir.2007), is "nearly insurmountable," United States v. Hale, 448 F.3d 971, 982 (7th Cir.2006).

There is sufficient evidence to sustain Mendoza's conviction. As to the first two elements, whether Mendoza knowingly and intentionally distributed amphetamine, the evidence easily surpasses the sufficiency standard. Mendoza negotiated a price at which he was willing to supply "meth" to Mingucha; he went to the agreed-upon place for the drug sale; and after receiving the negotiated amount of money for the drug, he personally placed in Mingucha's car a package that actually contained amphetamine. As for the third element, whether Mendoza knew the package contained a controlled substance, a reasonable jury could infer that he did. After agreeing to sell Mingucha "meth," Mendoza required Mingucha to go through an elaborate and secretive procedure before furnishing it, from which the jury could rationally infer that Mendoza wished to avoid attracting the attention of the authorities. The jury was therefore entitled to conclude that Mendoza knew he was giving Mingucha a controlled substance.

B.

Mendoza next challenges the district court's practice of seating 16 jurors to hear the evidence presented and randomly selecting four individuals to be alternates after the presentation of evidence. Although we disapprove of this procedure, the error was harmless.

Federal Rule of Criminal Procedure 24 governs the selection of jurors and alternates in criminal trials. This rule provides in pertinent part that the court may impanel alternate jurors who are identified as such and who replace jurors in the order the alternates are selected:

(c) Alternate Jurors.

(1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2) Procedure.

(A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

Fed.R.Crim.P. 24(c). We have said that Rule 24(c) contemplates selection of alternates "either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated." United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531 U.S. 1033, 121 S.Ct. 621, 148 L.Ed.2d 531 (2000).

Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner. For example, all 16 tentative jurors may be more likely to devote their full attention to the evidence presented given the likelihood that they will not be selected as an alternate. If an alternate replaces a juror during deliberations, the collective knowledge of the newly constituted jury would be less likely to suffer.

But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district court. See United States v. Delgado, 350 F.3d 520, 524 (6th Cir.2003) (noting compliance with Rule 24 is exception to district court discretion in jury selection). Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use...