U.S. v. Rodriquez-Cardenas, RODRIQUEZ-CARDENA

• Decision Date: 21 February 1989
• Docket Number: No. 88-8080,RODRIQUEZ-CARDENA,A,88-8080
• Citation: 866 F.2d 390
• Parties: 27 Fed. R. Evid. Serv. 1108 UNITED STATES of America, Plaintiff-Appellee, v. Josemado Jesus Perez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 390

866 F.2d 390

27 Fed. R. Evid. Serv. 1108

UNITED STATES of America, Plaintiff-Appellee, v. Jose RODRIQUEZ-CARDENAS, Amado Jesus Perez, Defendants-Appellants.

No. 88-8080.

United States Court of Appeals, Eleventh Circuit.

Feb. 21, 1989.

Paul S. Kish, Federal Defender Program, Inc., Atlanta, Ga., for Rodriquez-Cardenas.

Paul H. Kehir, Snellville, Ga., for Perez.

Craig A. Gillen, Asst. U.S. Atty., Atlanta, Ga., for U.S.

Appeal from the United States District Court for the Northern District of Georgia

Before JOHNSON and EDMONDSON, Circuit Judges, and NICHOLS, ^* Senior Circuit Judge.

JOHNSON, Circuit Judge:

Amado Jesus Perez and Jose Rodriquez-Cardenas appeal their convictions for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C.A. Secs. 841 and 846. They challenge the prosecutor's use of peremptory challenges to strike all blacks from the jury panel and the trial judge's decision to admit certain tape-recorded statements into evidence during the trial. We affirm the district court.

I. BACKGROUND

In July 1987, federal authorities were investigating the distribution and sale of cocaine in the Atlanta area. At this time, Luis Fontes, a known supplier of cocaine, contacted Douglas Reynolds to tell him that Fontes had associates ready to make a sale. The group of associates included appellants Perez and Rodriquez. Reynolds then arranged a meeting at his house between Perez and some potential buyers (one of whom was a government informant).

On July 7, 1987, Perez and Rodriquez arrived at Reynolds' house with the cocaine to make the sale. Once the terms had been agreed to, the exchange of money and drugs was to take place at a different location. Those actually transacting the sale at that location were arrested. Perez, Rodriquez and Reynolds were then arrested at Reynolds' house.

On July 9, 1987 Perez, Rodriquez, and Reynolds were charged in a two-count indictment with conspiracy and possession with intent to distribute cocaine. Reynolds immediately began cooperating with the government. At the direction of government officials, he placed several calls to Fontes that were recorded with Reynolds' consent. Fontes was later arrested and pled guilty.

During jury selection, the judge conducted the majority of the voir dire. He then allowed each side to exercise its peremptory challenges and a jury was selected. At this point, Rodriquez challenged the government's use of its strikes, noting that all three black potential jurors had been eliminated by the prosecutor. After the prosecutor made a statement defending his actions, the judge overruled Rodriquez's objections.

The government's key witness at trial was Reynolds. His testimony that appellants were involved in executing the transaction was substantially corroborated by a government informant, who had purchased the cocaine, and a Drug Enforcement Agency (DEA) agent. Appellants then testified that they had simply contacted Reynolds and Fontes independently at the suggestion of friends who said the two men could help appellants find work in Atlanta. They maintained that they were innocently swept into the drug transaction by their association with Reynolds. Appellants strenuously objected to the admission of two of the tape-recorded conversations the DEA made of Reynolds and Fontes after Reynolds agreed to cooperate with the DEA. However, the district court allowed the taped conversations admitted into evidence.

At the conclusion of the trial, the jury returned a verdict of guilty on the conspiracy charge (Count I) but not guilty as to the possession charge (Count II). On February 3, 1988, appellants were each sentenced to twelve years imprisonment. This appeal followed.

II. PROSECUTION'S USE OF PEREMPTORY CHALLENGES

At the conclusion of jury selection, Rodriquez, who is Hispanic, objected to the prosecutor's use of his peremptory challenges to rid the jury panel of the three black potential jurors. In objecting, he cited Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and claims he was cut off by the district court judge before stating that he also objected on Sixth Amendment grounds. On appeal, appellants rely on both Batson 's equal protection analysis and Sixth Amendment "fair cross-section" analysis to argue that the district court should have sustained the objection. Because appellants do not have standing to raise a Batson claim and because this Circuit's precedent forecloses application of Sixth Amendment "cross-section" analysis to petit juries, we reject their arguments.

In Batson, the Supreme Court held that it was a violation of equal protection for a prosecutor to exclude potential jurors in the selection of a petit jury solely because they were members of the same racial group as the defendant. Id. at 89, 106 S.Ct. at 1718-19. The Court reasoned that the concept of equal protection cannot tolerate "the assumption that [jurors of one race] as a group will be unable impartially to consider the State's case against a [defendant of that racial group]." Id. Thus, Batson 's equal protection rationale limits appellants to the claim that the prosecutor unfairly excluded Hispanics from the jury. Appellants do not have standing, under Batson, to challenge the prosecutor's exercise of his peremptory challenges in this case. See United States v. Townsley, 856 F.2d 1189, 1190 (8th Cir.1988) (en banc) (nonblack defendants cannot rely on Batson to challenge government's use of peremptory challenges to exclude black potential jurors from jury); United States v. Angiulo, 847 F.2d 956, 984 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988) (same).

In the alternative, appellants urge the Court to consider the Sixth Amendment's guarantee of an "impartial jury" and the "fair cross-section" analysis that follows in some circumstances from this requirement. The Supreme Court has interpreted the Sixth Amendment to guarantee a defendant's right to a jury selected from a representative cross-section of the community. Thus, the Court has held that the Sixth Amendment prohibits the systemic exclusion of cognizable groups within the community from the jury pool. Taylor v Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975).

However, the Supreme Court has consistently refused to extend this requirement to petit juries. See Taylor, 419 U.S. at 538, 95 S.Ct. at 701-02 ("[I]n holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population."); Lockhart v. McCree, 476 U.S. 162, 173-74, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1986) ("We have never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large.... We remain convinced that an extension of the fair-cross-section requirement to petit juries would be unworkable and unsound.").

Although other Circuits have read the language in the Supreme Court's opinions to allow the more expansive interpretation of the Sixth Amendment urged by Rodriquez, ¹ this Court has recently affirmed that it is bound by precedent to reject such an interpretation. In Lindsey v. Smith, 820 F.2d 1137 (11th Cir.1987), this Court acknowledged that the Supreme Court in Lockhart "did not foreclose the possibility that the Sixth Amendment offers some protection against the exclusion of blacks from petit juries by use of peremptory challenges." Lindsey, id. at 1145. However, the Court stated that it was bound to limit its interpretation of the Sixth Amendment by United States v. Dennis, 804 F.2d 1208 (11th Cir.), modifying 786 F.2d 1029 (11th Cir.1986), cert. denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987), where the Court stated that it was "constrained by binding Eleventh Circuit authority ... to reject appellants' invitation" to read the Sixth Amendment as requiring application of the cross-section analysis to the petit jury selection process. Id. at 1209 n. 21. Dennis in turn relied on a footnote in Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3546, 82 L.Ed.2d 849 (1984), which stated that the cross-section analysis set out in Taylor was "limited to jury venires." Id. at 1219 n. 14. In view of the limited interpretation of the Sixth Amendment taken in Willis, Dennis, and Lindsey, we are bound by precedent to reject appellants' argument that the Sixth Amendment should be read to provide protection for them in their challenge to the exclusion of black jurors from the petit jury by use of peremptory challenges. ²

III. ADMISSION OF THE TAPE-RECORDED CONVERSATIONS

Appellants challenge the admission of two tape-recorded conversations introduced by the government during the trial. They claim that the district court judge erred in admitting the first taped conversation, Government Exhibit 3 ("G-3"), because it was introduced on redirect examination of Reynolds and went beyond the scope of the cross-examination. They challenge the judge's decision to admit the second recorded conversation, Government Exhibit 5 ("G-5"), because they claim it is inadmissible under Fed.R.Evid. 402 and 802, which bar admission of irrelevant and hearsay evidence respectively. Decisions regarding the scope of redirect examination are committed to the district court judge's discretion, United States v. Wiley, 846 F.2d 150, 156 (2d Cir.1988), as are decisions regarding the admissibility of evidence, United States v. Peaden, 727 F.2d 1493, 1498 (11th Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 185, 83 L.Ed.2d 118 (1984), and both will be upset only if there is a clear showing that the district court judge abused his discretion.

The first tape recording...