CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation265 F.3d 576
Decision Date07 September 2001

Page 576

265 F.3d 576 (7th Cir. 2001)
No. 00-3073
U.S. Court of Appeals, Seventh Circuit
Argued February 13, 2001
September 07, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:00CR0008--Robert L. Miller, Jr., Judge.

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Before Manion, Kanne, and Evans, Circuit Judges.

Kanne, Circuit Judge

Antonio Alanis, defendant-appellant, was convicted of conspiracy to distribute cocaine, two counts of possession with intent to distribute cocaine, one count of possession with intent to distribute marijuana, and two counts of being a felon in possession. He was sentenced to a term of imprisonment of 468 months, to be followed by five years of supervised release. Alanis appeals his conviction, alleging that a myriad of errors werecommitted by the district court judge and the prosecuting attorney. Because we find that Alanis was not prejudiced by the errors that were made, we affirm his conviction.

I. History

We review the district court's findings of fact for clear error. See United States v. O'Brien, 238 F.3d 822, 825 (7th Cir. 2001).1 The numerous drug transactions with which Alanis was involved began, for the purposes of this appeal, in June 1998. Alanis offered Stephen Moore money to help him unload a shipment of marijuana. He also asked Moore to find a suitable location. Moore proposed the property of his friend, Raymond Selke, in Michigan City, Indiana, and Alanis agreed to this location. Alanis, Moore, and Selke subsequently unloaded approximately 180 pounds ofmarijuana from the refrigerated semi-trailer that was delivered to Selke's residence. Alanis paid Selke and Moore $9000 for their work.

Marijuana apparently was not lucrative enough because the three men entered into an agreement to deal in cocaine. Alanis directed Selke to buy an International semi-tractor and provided him with the money to do so. At Alanis's behest, Selke had his driver, Raymond Henckel, drive the newly-purchased truck from Indiana to Texas in the spring of 1999. Selke, Moore, and Alanis flew to Texas on July 5, 1999; the reservation had been made that morning by a woman named Sarah (the name of Alanis's wife). A few days later, the truck was delivered to Alanis in Texas, and Selke and Moore drove it back to Indiana. Alanis returned home via commercial airline. Upon arrival in Indiana, Selke, Moore, and Alanis unloaded the 135 kilogram-sized packages of cocaine that had been hidden in a false fuel tank in the tractor. Alanis paid Selke and Moore $30,000 for their efforts.

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The evidence at trial demonstrated that seven separate cocaine loads were transported from Texas to Indiana. In addition to the first load in July 1999, Selke and Moore drove three loads to Indiana (one load with 720 packages of cocaine in August 1999, one load with 540 packages in September, and one load with 540 packages in October), Henckel drove one load (with 540 packages in October), and Alanis arranged for two loads to be brought to Indiana by an independent driver (one with 405 packages at an unspecified date, the other with 422 packages in November). Moore and Selke helped Alanis unload the cocaine in each of these instances. Testimony at trial indicated that Alanis paid Selke and Moore $90,000 for their work on the August 1999 load alone. In all, the seven loads involved 3,302 one-kilogram packages of cocaine.

It was the November 1999 load that brought the conspiracy to an end. When the independent driver arrived on November 4, Alanis, Moore, and Selke met at Selke's home to unload the semi. They moved the 422 packages of cocaine into a Chevy pickup truck that Alanis had brought to the premises. Unfortunately for the conspirators, agents had been performing surveillance at both Alanis's and Selke's residences. When Selke and Alanis left in the unloaded semi, they were stopped by police. Agents ordered the two occupants out of the truck and found a fake bill of lading indicating that the now empty semi had been carrying cargo from "Alro Steel" in South Bend. From that point forward, Selke agreed to cooperate with the authorities. He consented to a search of his property, and the agents seized the 422 packages of cocaine as well as the pickup truck. Lab oratory analysis confirmed that the 422 kilograms of seized substances were cocaine.

After Selke agreed to cooperate, Moore also agreed to cooperate. Both testified at Alanis's trial, and a substantial amount of the evidence at trial was derived from their testimony. As the district court noted, "[t]heir testimony was well corroborated by travel records, telephone records, and the testimony of each other." United States v. Alanis, No. 3:00CR0008RM, slip op. at 2 (N.D. Ill. Aug. 4, 2000) (sentencing memorandum). Both of the semi-tractors used to transport the drugs to Indiana were examined by agents, and the compartments in which the cocaine had been hidden were photographed and measured. Airline records placed Alanis in Texas at times consistent with the witness testimony; reflected that someone named Sarah made flight reservations for Alanis, Moore, and Selke when they traveled in July and August; reflected that someone named Sarah made flight reservations for Moore and Selke when they traveled in September; and corroborated the times that Henckel had been in Texas. Telephone records corroborated the extensive phone contact between Alanis, Selke, and Moore--178 calls from January 9, 1999 to November 4, 1999--and also demonstrated that all telephone contact terminated on November 4, 1999, the date the agents made the seizure at Selke's residence.

Law enforcement agents arrested Alanis at his home on January 27, 2000, and searched his home pursuant to a warrant. They found a 9mm pistol in a bedside nightstand in the master bedroom. Next to the pistol were a pair of eyeglasses similar in appearance to those worn by Alanis at trial, and men's clothing and Alanis's wallet were found nearby. Agents also found a .22 caliber Marlin rifle in a cabinet in the basement of Alanis's home. There was evidence that both weapons had crossed state lines before they arrived in Indiana.

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The original indictment, which charged only two counts, was superceded by a seven-count indictment returned on March 9, 2000. Alanis pleaded not guilty and proceeded to trial. On April 3, 2000, a jury found Alanis guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. sec. 846 (Count I), one count of possession with intent to distribute marijuana in violation of 21 U.S.C. sec. 841(a)(1) (Count II), two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. sec. 841(a)(1) (Counts IV and V), and two counts of possessing a firearm after a felony conviction in violation of 18 U.S.C. sec. 922(g) (Counts VI and VII of the indictment). The judge sentenced Alanis to 468 months on each of counts I, IV, and V; a term of 240 months on count II; and a term of 120 months on each of counts VI, and VII; all to be served concurrently. After entry of Judgment on August 4, 2000, Alanis filed his notice of appeal.

II. Analysis

Alanis makes a number of claims on appeal. He asserts that his rights were violated in contravention of the Sixth Amendment, the Equal Protection Clause, the Due Process Clause, the Fifth Amendment, and the rule set forth by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He also challenges the sufficiency of the evidence relied on to convict him and requests a new trial. We will address each of these arguments in turn.

A. Sixth Amendment Claim

Alanis alleges that he was deprived of his Sixth Amendment right to a jury pool representing a fair cross-section of the community because the venire included only one black person and no Hispanics. Alanis presents a mixed question of law and fact which we review de novo, United States v. Raszkiewicz, 169 F.3d 459, 462 (7th Cir. 1999), though the district court's factual determinations are reviewed for clear error, United States v. Smallwood, 188 F.3d 905, 914 (7th Cir. 1999), cert. denied, 528 U.S. 1129, 120 S. Ct. 964, 145 L. Ed. 2d 836 (2000). To establish a violation of the fair cross-section requirement, Alanis must show:

(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of this group in the jury-selection process.

Johnson v. McCaughtry, 92 F.3d 585, 590 (7th Cir. 1996) (citing Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979)).The district court found that, even if Blacks and Hispanics could be combined as one group, Alanis failed to demonstrate the existence of the second and third elements.

We agree that Alanis did not satisfy the Duren standard. In the South Bend Division of the Northern District of Indiana, jury venires are drawn from eleven counties, yet Alanis only presented statistical evidence about the racial composition of St. Joseph County, the county in which the district court was located. Without evidence about the total representation of Blacks and Hispanics in the community from which the venire was drawn, there is no way to determine whether the representation in the venire was not fair and reasonable. Without proof that any "distinctive group" is under-represented, we cannot determine that such a group was excluded from the jury-selection process. We thus decline to find that Alanis was deprived of his Sixth Amendment right to

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