U.S. v. Rodriguez-Aguirre, RODRIGUEZ-AGUIRRE
| Decision Date | 11 March 1997 |
| Docket Number | RODRIGUEZ-AGUIRRE,No. 95-2067,95-2067 |
| Parties | 46 Fed. R. Evid. Serv. 813, 97 CJ C.A.R. 366 UNITED STATES of America, Plaintiff-Appellee, v. Gabriel, aka Refugio Rodriguez, aka Gabriel Rodriguez, aka Gabriel Aguirre, aka George Aguirre, aka Cuco Aguirre, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Charles L. Barth, Assistant United States Attorney (John J. Kelley, United States Attorney, Laura Fashing, Special Assistant United States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.
Paul J. Kennedy, Albuquerque, New Mexico, for Defendant-Appellant.
Before BALDOCK and BRORBY, Circuit Judges, and DANIEL, * District Judge.
A New Mexico federal jury convicted Gabriel Rodriguez-Aguirre (hereinafter "Mr. Aguirre") on thirteen counts in a multi-defendant, multi-count indictment. The United States District Court for the District of New Mexico sentenced Mr. Aguirre to 360 months imprisonment and imposed a four million dollar fine against Mr. Aguirre. Mr. Aguirre now appeals his convictions. We exercise jurisdiction over his appeal pursuant to 28 U.S.C. § 1291.
Mr. Aguirre managed a family-run organization ("the Aguirre organization") specializing in the sale and distribution of large amounts of marijuana and cocaine. United States v. Denogean, 79 F.3d 1010, 1011 (10th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 154, 136 L.Ed.2d 99 (1996). Between 1984 and 1992, the organization sold more than 20,000 pounds of marijuana and over 20,000 pounds of cocaine to narcotics traffickers in New Mexico, Arizona, Utah, Kansas, Massachusetts, and elsewhere throughout the United States. Id. The organization used narcotics proceeds to purchase real property and other assets. Id.
In October 1992, a federal grand jury in the District of New Mexico returned a twenty-three count indictment against Mr. Aguirre and twenty-one other defendants. The bill of indictment charged Mr. Aguirre with operating a continuing criminal enterprise, conspiracy to distribute marijuana, and multiple substantive counts of marijuana distribution and money laundering. Mr. Aguirre pled not guilty to the charges against him, and proceeded to trial with his codefendants in January 1994.
The original trial of Mr. Aguirre and his co-defendants lasted six months, becoming "the longest federal criminal trial ever held in the district of New Mexico." United States v. Rodriguez-Aguirre, 73 F.3d 1023 1024 (10th Cir.1996). After deliberating for more than six weeks, the jury was unable to reach a verdict on the majority of counts. Id. Consequently, the trial judge declared a mistrial. Id.
In August 1994, the United States obtained a superseding indictment against Mr. Aguirre and nine of his co-defendants. The superseding indictment charged Mr. Aguirre with running a criminal enterprise, conspiracy to distribute marijuana and cocaine, and the unlawful importation of marijuana. The superseding indictment also charged Mr. Aguirre with illicit investment, money laundering, and multiple counts of marijuana and cocaine trafficking.
Mr. Aguirre moved to dismiss the continuing criminal enterprise and conspiracy charges (Counts I and II, respectively), arguing prosecution on those charges violated the Double Jeopardy Clause. Mr. Aguirre alleged he had already been charged and convicted of the same conspiracy and continuing criminal enterprise charges in a prior trial in the District of Kansas. This court affirmed those convictions in 1990. See United States v. Armendariz, 922 F.2d 602 (10th Cir.1990), cert. denied, 502 U.S. 823, 112 S.Ct. 87, 116 L.Ed.2d 59 (1991).
In September 1994, the district court denied Mr. Aguirre's motion to dismiss on double jeopardy grounds. Mr. Aguirre appealed the district court's order, and on November 10, 1996, four days prior to the start of trial, we granted Mr. Aguirre's petition for a writ of prohibition and stayed his prosecution on Counts I and II of the superseding indictment pending the outcome of his interlocutory appeal. 1 See Rodriguez-Aguirre v. Bunton, No. 94-2243 (10th Cir. Nov. 10, 1994).
In November and December 1994, the United States tried Mr. Aguirre on the superseding indictment. Prior to trial, the court randomly selected a jury panel of approximately 250 jurors from voter registration lists for the Roswell Division of the District of New Mexico. The district judge excused 132 jurors sua sponte after reviewing the juror questionnaires; the court directed only 115 jurors to report for jury service. Six days prior to trial, defense counsel were provided copies of juror questionnaires for the panel selected for service, and defense counsel learned the court had excused the remaining jurors.
On the first day of trial, prior to jury selection, Mr. Aguirre filed a motion to stay the proceedings, and co-defendant David Morales filed a motion to quash the jury venire 2. The motions alleged the jury venire panel seriously misrepresented the ethnic makeup of the District of New Mexico. Specifically, the defendants claimed persons of Hispanic origin and American Indian background were underrepresented. The defendants sought a stay of the trial to allow time for an investigation of the ethnic background of all the jurors. In addition, Mr. Morales' counsel, Paul Kennedy, orally advised the court of United States v. Calabrese, 942 F.2d 218 (3d Cir.1991), which Mr. Kennedy claimed stood for the proposition that it is reversible error for a court to exclude a juror prior to voir dire "simply because a juror knows a defendant." Mr. Kennedy claimed it appeared the court had excused at least one juror because the juror stated that he or she knew one of the defendants.
Following Mr. Kennedy's comments, the court held an evidentiary hearing at which Nancy Metzger, jury administrator for the Federal Court Clerk's office, testified. Ms. Metzger stated the jury panel of approximately 250 jurors had been randomly selected from voter registration lists. Ms. Metzger testified that the district judge reviewed the juror questionnaires and directed her to excuse more than 100 specific jurors. Ms. Metzger stated she did not know the ethnicity of either the excused jurors or the jurors who reported for service.
The court then stated it had reviewed the individual juror questionnaires and "retained the stack of those who, for some reason or other, claimed that they couldn't serve." The court explained:
I think it goes without saying that the ones that were not summoned, I never looked at the last name, whether it was [a] Hispanic surname or whether it was not a Hispanic surname, or whether they were American Indians or not. As a matter of fact, I'm not real sure that that's part of the questionnaire--
Ms. Metzger confirmed the questionnaire forms did not direct the jurors to provide their ethnicity.
The district court denied the defendants' motion to stay the proceedings and the defendants' motion to quash the jury venire. However, the court allowed the defendants to supplement the record within ten days of the completion of the trial with information concerning the racial composition of the District of New Mexico and the Roswell Division. None of the defendants chose to supplement the record with such information.
Mr. Aguirre also filed a motion to sever his trial from that of his codefendants on the first day of trial. Because the government's evidence focused on the conspiracy count for which Mr. Aguirre was not on trial, Mr. Aguirre alleged the evidence admitted against his co-defendants would have a "drastic spillover effect" and prevent him from receiving a fair trial. The district court orally denied Mr. Aguirre's motion to sever.
The trial of Mr. Aguirre and his co-defendants lasted approximately one month. On December 15, 1994, the jury returned a verdict against Mr. Aguirre on thirteen of the counts in the superseding indictment. Thereafter, Ms. Sonia Gallegos, a co-defendant of Mr. Aguirre who was also convicted, filed a motion for a new trial. Mr. Aguirre adopted Ms. Gallegos' motion for a new trial pursuant to the district court's standing order that "anything that anybody files the others adopt." Mr. Aguirre argued, inter alia, he was entitled to a new trial because of jury misconduct. Mr. Aguirre attached an affidavit from defense investigator Kelly Owens to his motion. Mr. Owens testified that following the trial, he questioned nine of the twelve jurors who convicted Mr. Aguirre. Mr. Owens stated that one of the jurors, Linda Howard, admitted looking up the dictionary definition of the word "distribution" on the first day of deliberations and sharing its definition with the other jurors on the following day. According to Mr. Owens, Ms. Howard stated the jurors discussed the meaning of "distribution" as it related to the guilt or innocence of Ms. Gallegos. Mr. Owens also testified juror Ronnie Warmuth claimed he had knowledge of another juror researching the dictionary definition of the word "hypothecate." 3 In his post-trial motion, Mr. Aguirre contended this improper juror conduct prejudiced him and entitled him to a new trial.
The district court denied Mr. Aguirre's motion for a new trial, rejecting the defendants' claim of jury misconduct. The court concluded the word distribution was one of common usage, and there was no showing any of the jurors relied upon its dictionary definition or that the dictionary definition "made any difference at all in the jury deliberations."
At sentencing, the district court adopted the factual findings and sentencing guideline application in Mr. Aguirre's presentence report. Accordingly, the court determined Mr. Aguirre had an offense level of 42, a criminal history category of II, and a sentencing range of 360 months to life. The court imposed the following sentence upon Mr. Aguirre: 60 months imprisonment on Count IV; 360 months...
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