U.S. v. Rosales-Lopez, ROSALES-LOPE

• Decision Date: 20 March 1980
• Docket Number: D,ROSALES-LOPE,No. 79-1302,79-1302
• Citation: 617 F.2d 1349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Humbertoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1349

617 F.2d 1349

UNITED STATES of America, Plaintiff-Appellee, v. Humberto ROSALES-LOPEZ, Defendant-Appellant.

No. 79-1302.

United States Court of Appeals, Ninth Circuit.

March 20, 1980.

Rehearing Denied May 12, 1980.

John J. Cleary, Federal Defender, San Diego, Cal., for defendant-appellant.

Irene Takahashi, Asst. U. S. Atty. (on the brief), Michael H. Walsh, U. S. Atty., Irene Takahashi, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California The Honorable Howard F. Corcoran, Presiding.

Before WALLACE and ANDERSON, Circuit Judges, and PALMIERI,* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Defendant Humberto Rosales-Lopez appeals his conviction below for one count of conspiracy to conceal, harbor and shield, and illegally transport aliens in violation of 18 U.S.C. Sec. 371 and 8 U.S.C. Sec. 1324, three counts of aiding and abetting the illegal transportation of aliens in violation of 8 U.S.C. Sec. 1324(a)(2) and 18 U.S.C. Sec. 2, and three counts of concealing, harboring and shielding aliens in violation of 8 U.S.C. Sec. 1324(a)(3). Rosales-Lopez was sentenced to serve five years for each count, with each sentence to run consecutively, but the sentences for each of the last six counts were suspended. We affirm on all issues.

I. BACKGROUND

Rosales-Lopez, a resident alien, was involved in an illegal alien smuggling operation in Southern California. Briefly stated, the object of the plan was to transport aliens who had surreptitiously crossed the Mexican-American border from a point in Imperial Beach, California, by automobile up Interstate Five to a drop point in Los Angeles. Rosales-Lopez' conviction in December 1978, arises from his arrest for the transportation of three Mexican aliens from Imperial Beach to Los Angeles.

The three aliens, led by a guide whose identity remains unknown, left Tijuana on foot and crossed the border under cover of darkness. The guide took them to a car parked on the American side of the border, and drove them to the residence of Virginia Hendricks Bowling in Imperial Beach. Bowling, an American citizen, lived at the Imperial Beach residence with her daughter. Sometime in July 1978, Rosales-Lopez had become romantically involved with Bowling's daughter and had moved into the Imperial Beach residence. When the three aliens whose entry is at issue here arrived early on the morning of December 11, Rosales-Lopez admitted them, along with the guide, into the garage of the Bowling house.

The method of transporting the aliens apparently conformed to a plan which had been followed on previous occasions. The guide and the aliens entered the trunk of a green Oldsmobile, and Rosales-Lopez closed the lid of the trunk. Bowling then entered the Oldsmobile and drove it north on Interstate Five through the San Clemente checkpoint, with Rosales-Lopez following in a grey Ford. Once both automobiles had cleared the checkpoint, they pulled off into a parking lot and Bowling exchanged cars with Rosales-Lopez. The guide emerged from the trunk of the Oldsmobile and proceeded to drive to Los Angeles, with Rosales-Lopez seated on the passenger side. The purpose of Bowling driving the car through the checkpoint was to deter suspicion by avoiding the use of a Latin-appearing driver. Bowling returned to Imperial Beach in the Ford, following the exchange of cars.

The Oldsmobile was driven to an apartment in Los Angeles, where the aliens were let out of the trunk and told by Rosales-Lopez to go upstairs into the apartment. The apartment was apparently occupied by a number of other illegal aliens who had been transported to the location by other means. Sometime after the arrival of Rosales-Lopez, the guide, and the three aliens, the other named principals in the smuggling arrangement, David Falcon-Zavala and Joe Manuel Flores, arrived at the apartment, apparently under orders from a person higher up in the smuggler's chain of command. Falcon-Zavala and Flores were to be involved in the transportation of the numerous aliens present at the apartment to specific locations in Southern California which were the aliens' ultimate destinations.

Agents of the Immigration and Naturalization Service had been maintaining surveillance over both the Los Angeles apartment and the Imperial Beach residence for a number of weeks prior to December 11. In fact, agents had followed the progress of the green Oldsmobile from Imperial Beach to Los Angeles that morning. Agents had observed Rosales-Lopez open the trunk of the Oldsmobile at Los Angeles, and had also observed the aliens leave the trunk and proceed up the stairs. In addition, automobile traffic around the apartment had been heavy. The agents concluded that the apartment was being used as a drop site for illegal aliens.

At approximately noon on December 11, Flores departed in an automobile with two of the aliens. Agents stopped the Flores car a few blocks away and obtained admissions from the aliens that they were present in the United States illegally. A short time later, Rosales-Lopez, Falcon-Zavala, and one of the aliens who had been transported in the trunk of the Oldsmobile left the apartment in another automobile. Agents approached the car while it was stopped at a gas station. All three occupants were arrested. A short time later, agents raided the apartment, and all of the aliens present were taken into custody.

Rosales-Lopez, Flores, Falcon-Zavala, and Bowling were originally indicted on sixteen counts of conspiracy, harboring and shielding aliens, aiding and abetting, and illegal transportation of aliens. Falcon-Zavala and Bowling each plead guilty to misdemeanors. Flores became a fugitive whose whereabouts apparently remain unknown. A superseding indictment filed February 9, 1979, charged Rosales-Lopez and Flores with seven counts of conspiracy, concealing and harboring, illegal transportation, and aiding and abetting. Rosales-Lopez was convicted and sentenced on each count. Procedural details will be developed as necessary in the opinion.

II. ISSUES ON APPEAL

Rosales-Lopez raises seven issues on appeal:

(1) Whether the district judge's voir dire of the jury venire was adequate to detect potential bias or prejudice;

(2) Whether the trial court erred in refusing to provide Rosales-Lopez, an indigent, with a free copy of the transcript of a suppression hearing;

(3) Whether sentencing was improperly imposed by a district judge who did not preside at trial;

(4) Whether the district court erred by denying Rosales-Lopez an evidentiary hearing on possible prosecutorial vindictiveness;

(5) Whether the district court erred in refusing to give an instruction on a lesser-included offense;

(6) Whether consecutive sentences were improperly imposed;

(7) Whether the exemption from prosecution for employers contained in 8 U.S.C. Sec. 1324 denies Rosales-Lopez equal protection of the laws.

III. VOIR DIRE

Pursuant to the 'Arizona Plan' utilized in the Southern District of California, the trial judge conducted the voir dire of the jury venire. Counsel for Rosales-Lopez submitted several requested questions to the court prior to voir dire, a number of which the judge declined to ask. Rosales-Lopez claims reversible error in the court's failure to make six specific inquiries.

We affirm as to five of the six with only brief comment. ¹ The scope of voir dire is a matter within the sound discretion of the trial judge, and will not be disturbed on appeal unless the procedures used or questions propounded are so unreasonable as to constitute an abuse of discretion. United States v. Baldwin, 607 F.2d 1295 (9th Cir. 1979). After reviewing the entire voir dire procedure, we cannot say that the questions propounded were insufficient to probe for bias. We find no error generally in the refusal to ask five of the six questions.

Rosales-Lopez also requested that the court inquire whether his Mexican descent would affect the jurors' deliberations. ² While we also affirm on this question, we feel that a more extended discussion is in order. A longstanding rule of criminal justice in the federal courts holds that questions regarding possible racial prejudice should be put to the venire in prosecutions of minority defendants, at least where 'special circumstances' indicate that the defendant's race may be a factor in the trial. See Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). The extent of the federal rule is unclear. Some circuits have applied what amounts to a per se rule that a racial prejudice question must be put to the venire in all cases where the defendant is a member of a minority group. See, e. g., United States v. Bowles, 574 F.2d 970 (8th Cir. 1978); United States v. Bell, 573 F.2d 1040 (8th Cir. 1978); United States v. Robinson, 485 F.2d 1157 (3d Cir. 1973). Our circuit, however, has declined to impose such a voir dire requirement upon district courts absent some indication that prejudice is likely to arise, or that the trial will have racial overtones. See United States v. Perez-Martinez, 525 F.2d 365 (9th Cir. 1975); United States v. Walker, 491 F.2d 236 (9th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974).

Under the principle of stare decisis, we are constrained to follow our holding in Perez-Martinez, supra, unless a subsequent decision of this court or of the United States Supreme Court has altered its basic principle. The Supreme Court addressed the question after our decision in Perez-Martinez in Ristaino v. Ross, supra, a state prosecution of a black defendant charged with an assault upon a white security guard. In determining that there is no constitutional compulsion upon state courts to inquire into racial prejudice on voir dire, the Court noted that the duty imposed upon federal courts under the Court's...