U.S. v. Moreno, 88-2457

Citation878 F.2d 817
Decision Date14 July 1989
Docket NumberNo. 88-2457,88-2457
Parties28 Fed. R. Evid. Serv. 588 UNITED STATES of America, Plaintiff-Appellee, v. Encarnacion MORENO, Justiniano Orguiza, and Joseph Martinez Ruiz, a/k/a Alberto Alvarez, Defendants-Appellants. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Asst. Federal Public Defender, Houston, Tex., for Moreno.

Luis A. Martinez, Houston, Tex. (court appointed counsel), for Ruiz.

William W. Burge, Houston, Tex., for Orguiza.

Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Tom Meehan, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

This appeal arises from a joint jury trial in which the three defendants were convicted on a variety of charges relating to the possession and importation of 5000 grams of cocaine. On appeal all defendants contend that the trial court erred in rejecting their challenge to the prosecutor's exercise of his peremptory strikes in what the defendants contend was a discriminatory fashion. In addition, each defendant raises individual challenges to his or her own convictions. Specifically, Moreno contends that the evidence was insufficient to sustain her conviction for importing cocaine; Orguiza contends that the evidence was insufficient to sustain his conviction for conspiracy to possess cocaine; and Ruiz contends that the district court erred in failing to make a finding on the record that the probative value of using his prior convictions for impeachment purposes outweighed the prejudicial effect of that use.

We conclude that the district court did not err in rejecting the defendant's challenge to the prosecutor's exercise of his peremptory strikes. In addition, we find that the evidence was sufficient to sustain Moreno's conviction for importing cocaine. On the other hand, we find that the evidence was not sufficient to sustain Orguiza's conviction for conspiracy to possess cocaine. Finally, we conclude that the district court erred in failing to make an on the record finding regarding the probative value versus prejudicial effect of using Ruiz's prior convictions for impeachment purposes. Consequently, we affirm in part, reverse in part, and remand.

Facts

In the fall of 1987, Virgilio Beltran, an informant working with the United States Customs department, was employed as a licensed ship navigator aboard the Royal Star. In November of that year Beltran met Moreno and her husband, Palmyra, at a restaurant in Buenaventura, Columbia. Palmyra asked Beltran to smuggle five kilograms of cocaine into the United States aboard the Royal Star. Palmyra told Beltran that Moreno would receive the cocaine in the United States and would give Beltran $4,500 per kilogram at the time of delivery. Beltran agreed to smuggle the cocaine at which time Moreno supplied Beltran with a written telephone number and the name "Justo." Beltran was to contact "Justo" in the United States to make arrangements to deliver the cocaine. Beltran then tore a 200 peso bill in half, gave one half to Moreno, and instructed her that once in the United States she would receive the cocaine from a person holding the other half of the 200 peso bill.

Palmyra delivered the cocaine to Beltran who hid it aboard the Royal Star. The ship arrived in Houston, Texas on November 14, 1987. In Houston Beltran turned the cocaine, the half of the 200 peso bill, and the telephone number over to Special Agent Brooks of the United States Customs. A call was placed to the telephone number given Beltran, but a female answered and indicated that "Justo" had moved the previous week. Beltran left the cocaine with Agent Brooks and returned to Columbia about November 24th or 25th. Beltran contacted Palmyra in Columbia and informed him that he, Beltran, had been unable to contact "Justo." Palmyra supplied Beltran with a second Houston telephone number and the name "Tana" as well as a Newark, New York telephone number.

Beltran returned to Houston on December 3, 1987 and relayed the new delivery information and telephone numbers to Agent Brooks. Beltran made a series of taped telephone calls to "Tana" at the Houston telephone number and agreed to meet the person to whom the cocaine was to be delivered between 4:00 and 4:30 p.m. at a Houston Restaurant. In order to make a controlled delivery, Beltran was given the cocaine that he had previously left with Agent Brooks.

While Beltran was arranging to deliver the cocaine Customs agents set up surveillance on the apartment corresponding to the telephone number. At about noon Moreno and Orguiza came out of the apartment, looked around, and returned to the apartment. At approximately 12:50 p.m. Ruiz entered the apartment. About 20 minutes later co-defendant Botello 1 and a person named Melendez entered the apartment. Moreno and Ruiz left the apartment for about fifteen minutes between 2:30 p.m. and 2:45 p.m. At about 3:00 p.m. Moreno and Ruiz left in a black Chrysler.

Beltran and Harris County undercover officer Stamper met Ruiz and Moreno at the pre-arranged site. Moreno indicated that she did not have all the money she owed Beltran and the parties discussed picking up the rest of the money that evening. Ruiz left briefly and returned with a bag of money. At that time Moreno and Officer Stamper got into the undercover vehicle. Stamper gave the cocaine to Moreno who smelled the package without opening it and said "good." Moreno gave Stamper $500 in cash and returned to her vehicle carrying the cocaine. Ruiz gave Beltran $6000 in cash and told him he could pick up the remainder of the money owed to him that evening. Ruiz and Moreno were arrested at the transaction site. The torn half of the 200 peso bill was recovered from their vehicle.

At approximately 6:15 p.m. Orguiza came out of the apartment which was under surveillance. The surveillance officers detained Orguiza who gave the officers the key to the apartment. The officers searched the apartment pursuant to a search warrant. In the apartment the officers found Moreno's passport, an airline ticket in Moreno's name for a flight from Columbia to Houston through New York, a piece of paper bearing the name "Royal Star" and the telephone number of the ship's broker, a piece of paper bearing several telephone numbers and the name "Justo," and a piece of paper bearing the number of the digital pager that Ruiz was wearing at the time of his arrest. In addition the officers discovered a Houston City water receipt made out to defendant Orguiza. The address on the receipt corresponded to the address of the original telephone number given to Beltran in Columbia in November.

Moreno was indicted for conspiracy to possess cocaine with intent to distribute it, for importing cocaine into the United States and for possession of cocaine with intent to distribute it. Ruiz and Orguiza were charged with conspiracy to possess cocaine with the intent to distribute it. The defendants were convicted following a jury trial and this appeal followed.

Analysis
A. The Peremptory Strikes

Each of the defendants is black and hispanic. The venire consisted of forty-one individuals. Six of the veniremen were black and eight had Hispanic surnames. The government had six peremptory strikes, all of which it used to excuse black or hispanic veniremen. The jury consisted of ten whites, two blacks, with one white alternate and one hispanic alternate. Additionally, several of the jurors spoke Spanish. The defendants contend that the prosecutor used his peremptory strikes to excuse jurors solely on account of their race and in violation of the equal protection clause of the Fourteenth Amendment.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that: "The equal protection clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the state's case against a black defendant." Id. at 89, 106 S.Ct. at 1718. Consequently, a prosecutor is authorized to peremptorily challenge minority jurors only if the state can demonstrate a racially neutral reason for the challenge. There are three elements to a prima facie case under Batson.

First, defendant "must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Second, defendant can rely on the fact that peremptory challenges may disguise racial discrimination. Third, "the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

United States v. Forbes, 816 F.2d 1006 (5th Cir.1987) (citations omitted).

Once a defendant has made a prima facie showing that the prosecutor's strikes were racially motivated, the burden shifts to the government to "come forward with a neutral explanation for challenging" the jurors of the defendant's race. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

In this case the defendants made their prima facie case under Batson. At the request of defense counsel the court then required that the prosecutor offer neutral explanations for his challenges. The prosecutor stated that he struck juryman number 13, a black man, because the prosecutor detected a hostile attitude toward police officers during defense voir dire. The prosecutor struck juryman number 16, a hispanic man, because of his response to questions regarding the problems that the city had recently had with its undercover officers. Juror number 21, a hispanic male, juror number 26, a black female, and juror number 28, a black female,...

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