U.S. v. Ponce, s. 91-50256
| Decision Date | 01 April 1993 |
| Docket Number | Nos. 91-50256,91-50273 and 91-50749,s. 91-50256 |
| Citation | 990 F.2d 1264 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Carlos Tapia PONCE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mauricio MONROY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Romero MCTAGUE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.
Ponce, Monroy and McTague were convicted of conspiring to possess, and of possessing for purposes of distributing, 21 tons of cocaine. After carefully studying all their points on appeal, we affirm on all grounds, but vacate the sentences.
All defendants claim error because the prosecution used peremptory challenges to strike two black persons from the jury panel, Lorraine Smith and Terence Wilson. After the government struck the second of the two, Mr. Wilson, the defense moved for a hearing on whether the government had a non-racial justification. The court denied the motion because no pattern was apparent, and a nondiscriminatory explanation was obvious. Mr. Wilson had said that (1) he might not have time for the trial because of art projects he had, (2) when he heard about arrests of pushers, he saw this as an outward manifestation of deeper crime in higher places mostly immune from the law, and (3) he compared street crime to people who are sick, people whose actions are predictably desperate. The judge noted that his tone of voice made it apparent that Wilson was "upset about having been called." The judge considered the pattern, observed that another black juror had been drawn and not challenged and others remained in the pool, and, far from the prosecution challenging minority jurors, "it's clear there is a pattern of excusing white jurors or Anglo jurors." We review the district court's conclusion as to whether a defendant established a prima facie case of discrimination for clear error. United States v. DeGross, 960 F.2d 1433, 1442 (9th Cir.1992) (en banc).
Although defendants are not black, they have standing to bring a claim that blacks were excluded from the jury in violation of their Due Process rights. Powers v. Ohio, 111 S.Ct. 1364, 1371 (1991); 1 De Gross, 960 F.2d at 1437. To establish a prima facie case of purposeful discrimination, a litigant must show that a peremptory challenge was exercised against a member of a constitutionally cognizable group, and that this fact and other relevant circumstances raise an inference that the challenge was on account of group membership. De Gross, 960 F.2d at 1442. Only when a prima facie case of discrimination has been established does the burden shift to the challenging party to articulate a nondiscriminatory reason. We have stated that United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.1989).
In this case, although the first part of the test for a prima facie case was met, the trial judge found that the second was not. He took note of the lack of pattern, and the reasons obvious to him why Mr. Wilson might be challenged on nonracial grounds. The record demonstrates the basis for this finding, and it was not "clearly erroneous." 2
Ponce claims that his confession should have been suppressed on two grounds. First, his right to counsel was violated because the police resumed questioning after he had indicated he wished to consult counsel. Second, the confession was the fruit of an unlawful arrest.
We review de novo whether inquiries constitute interrogation. United States v. Gonzales-Sandoval, 894 F.2d 1043, 1046 (9th Cir.1990). We review for clear error factual findings, such as who said what to whom. United States v. Bland, 908 F.2d 471, 472 (9th Cir.1990).
Despite the lack of a search warrant or arrest warrant, the agents got a key to Ponce's hotel room from hotel security, awaited Ponce's return inside his room, and arrested him when he came in. The trial judge suppressed items seized in the room because the entry was without a warrant, but denied the motion to suppress the confession. The judge found that the agents' account of who said what to whom was true, and Ponce's was false. After being handcuffed in his room and advised of his rights, Ponce said he wanted a lawyer, so questioning of him stopped. Then he was taken to the police station. At the police station, while one agent asked Ponce standard identity questions for booking, an immigration officer assigned to the drug enforcement task force came in and asked Ponce about his immigration status. Ponce asked what would happen to him, so one of the agents explained that he would be charged, arraigned, considered for release on bail, tried by a jury, and if convicted, sentenced. Ponce then said he wanted to cooperate but was concerned about his family and did not know how to cooperate. The agents told him that if he cooperated, they could not guarantee him any benefits, but the court would be advised of his cooperation.
Ponce's argument is that the agents began questioning him again, even though he had not been given an opportunity to consult counsel. The issue turns on who initiated the conversation. Oregon v. Bradshaw, 462 U.S. 1039, 1043-44 (1982); Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). That is not answered by determining who spoke first. The issue is whether the police invited the suspect to talk more about the crime after the suspect said he wanted a lawyer. Shedelbower v. Estelle, 885 F.2d 570, 573-74 (9th Cir.1989), cert. denied, 111 S.Ct. 975 (1991).
"Routine gathering of background biographical data does not constitute interrogation sufficient to trigger constitutional protections." United States v. Perez, 776 F.2d 797, 799 (9th Cir.1985). Also, the immigration questions posed by one of the agents were not asked in order to gather data for a possible prosecution of Ponce for violations of immigration laws. See Gonzalez-Sandoval, 894 F.2d at 1046-47 (). Ponce's responses to the immigration questions were never used against him at trial. The questions did not refer to the subject matter of Ponce's case, and they were not the sort "reasonably likely" to elicit a denial, admission, alibi, or any incriminating remark or conduct. See Shedelbower, 885 F.2d at 573.
This case is much like Bradshaw, 462 U.S. at 1045, where a suspect "initiated" conversation with officials when he asked them "Well, what is going to happen to me now?" In Ponce's case, the agents spoke first, but their inquiries were booking questions, and the words immediately preceding Ponce's decision to confess were a description of the legal system. The agents did not ask or suggest that Ponce talk more about the cocaine. The district court did not err in finding that the agents did not resume interrogation in violation of Ponce's right to counsel.
Ponce argues that his confession should have been suppressed because it was obtained as a result of his unlawful arrest. The government in its brief "concedes that Ponce was arrested illegally in that while agents had ample probable cause, they did not have an arrest warrant." Ponce does not dispute probable cause for his arrest. The police had watched Ponce participate in the transfers of boxes at the warehouse, knew that a dog had sniffed cocaine on a piece of one of the boxes, learned that Ponce leased the warehouse and the shared apartment, and had found the 21 tons of cocaine and $12,000,000 in cash in the warehouse pursuant to the search warrant. Ponce's Fourth Amendment argument is that, but for the warrantless arrest following the warrantless entry into his hotel room, he would not have confessed about an hour later in the police station. Accordingly, his confession should be suppressed as a fruit of the unlawful arrest.
Ponce relies principally upon Brown v. Illinois, 422 U.S. 590 (1975), for the proposition that a confession resulting from an unlawful arrest must be suppressed. But New York v. Harris, 495 U.S. 14 (1990), distinguished Brown. In that case, an in-home arrest followed an unlawful entry, but there was probable cause for the arrest. Id. at 21. Once the suspect has been advised of his rights and taken to the police station, his custody is not illegal. Therefore, though following an illegal arrest, later statements are not the fruits of any illegal aspect of that arrest. Id. at 20, 22. Under Harris, Ponce's Fourth Amendment argument must be rejected.
The agents found a computer disk at the home shared by two of the defendants, and made a printout of the data on it. Ponce argues that the printout was inadmissible hearsay, because insufficient foundation was laid to bring it within the business records exception or any other. We review the district court's decision for abuse of discretion. United States v. Huguez-Ibarra, 954 F.2d 546, 553 (9th Cir.1992).
The printout was not hearsay, because it was not "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). The experienced DEA agent, through whom the printout was admitted, testified that the printout was, in his opinion, a ledger of narcotics transactions....
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