US v. Lara
Case Date: 06/30/1999
Court: United States Court of Appeals
Docket No: 97-2215
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For the First Circuit No. 97-2215 UNITED STATES OF AMERICA, Appellee, v. GIOVANNI LARA, Defendant, Appellant. No. 97-2223 UNITED STATES OF AMERICA, Appellee, v. GEORGE SEPULVEDA, Defendant, Appellant. _____________________ No. 97-2224 UNITED STATES OF AMERICA, Appellee, v. TERRENCE BOYD, Defendant, Appellant. ______________________ No. 97-2225 UNITED STATES OF AMERICA, Appellee, v. SHARIFF ROMAN, Defendant, Appellant. _____________________ No. 97-2226 UNITED STATES OF AMERICA, Appellee, v. GEORGE PERRY, Defendant, Appellant. _____________________ No. 97-2227 UNITED STATES OF AMERICA, Appellee, v. ERYN VASQUEZ, Defendant, Appellant. _____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge] Before Selya, Circuit Judge, Kravitch,* Senior Circuit Judge, and Lipez, Circuit Judge. Valeriano Diviacchi, with whom Diviacchi Law Office was on brief, for appellant Lara. Malcolm J. Barach for appellant Sepulveda. Larry J. Ritchie, with whom Edward L. Gerstein was on brief, for appellant Boyd. R. Scott Miller, Jr. for appellant Roman. R. Scott Miller, Jr. with whom Richard J. Shea was on brief, for appellant Perry. Pedro A. Jaile for appellant Vasquez. Lisa Simotas, Attorney, Dep't of Justice, with whom Margaret E. Curran, United States Attorney, Gerard B. Sullivan, and Terrence P. Donnelly, Assistant United States Attorneys, were on brief, for the United States. June 30, 1999 __________ *Of the Eleventh Circuit, sitting by designation. SELYA, Circuit Judge. A federal grand jury indicted a coterie of defendants, including the six appellants (Giovanni "King G" Lara, George "King Paradise" Sepulveda, Terrence "King Bullet" Boyd, Shariff "King Biz" Roman, George "King Animal" Perry, and Eryn "King Guy" Vasquez) for a multiplicity of crimes arising out of their involvement in the Providence chapter of the Almighty Latin King Nation. Following a 44-day trial, each appellant was convicted on one or more of the following charges: racketeering, 18 U.S.C. 1962(c); conspiracy to commit racketeering, id. 1962(d); violent crime in aid of racketeering (including two murders and two attempted murders), id. 1959(a)(1) & (5); carjacking, id. 2119(3); witness intimidation, id. 1512(b); use or carriage of a firearm during a crime of violence, id. 924(c); and being a felon in possession of a firearm, id. 922(g). The district court sentenced five of the appellants to life imprisonment and the sixth, Vasquez, to 100 months in prison. These appeals followed. We affirm. I. BACKGROUND We offer a thumbnail sketch of the interrelationship between the appellants and the Latin Kings, taking the information contained in the record in the light most congenial to the jury's verdict. See United States v. Houlihan, 92 F.3d 1271, 1277 (1st Cir. 1996). We eschew an exposition of the other evidence, preferring to discuss that evidence in the body of the opinion as it pertains to our consideration of particular points raised by the appellants. The Latin Kings originated in Chicago in the 1940s. Over time, the street gang's influence spread to other venues. The movement migrated east to Providence in the early 1990s. Though some chapters of the Latin Kings, called Charter Nations, require Hispanic descent as a condition of membership, others (like the Providence chapter) allow persons of all races and ethnicities to join. Members of the Latin Kings signal their affiliation by sporting beads and other accouterments (including tattoos) in the gang's colors black and gold. They pay dues, attend weekly meetings, and undertake "missions" (a euphemism that covers an array of activities ranging from running errands to committing violent crimes) when directed by gang leaders. Respect and security rank among the gang's paramount concerns: the Latin Kings routinely discipline members for disrespectful behavior or for discussing Latin King business with outsiders. Discipline runs a lengthy gamut from the "silent treatment" (suspension of all communications with other gang members), to revocation of drug use privileges, to a "bounce" (a time-controlled beating limited to certain areas of the body), to death. The Almighty Latin King Nation is a hierarchical organization, and each of the appellants held one or more leadership positions within the Providence chapter. Sepulveda served as the group's president (sometimes called "Inca"). Boyd served as the vice-president (sometimes called "Cacique"), and later succeeded Sepulveda as president. Roman served as the chief enforcer (a position previously held by Lara and subsequently held by Perry), and replaced Boyd as vice-president. Vasquez functioned as the group's philosopher and then graduated to the post of investigator. Against this backdrop, we proceed to survey the appellants' assignments of error. We start with two issues pertaining to jury selection and then treat three of the trial court's evidentiary rulings. At that juncture, we address a series of Rule 29 claims. Finally, we tackle a perceived problem with the jury instructions. To the extent that the appellants mount other claims, we reject them out of hand, without elaboration. II. JURY SELECTION ISSUES Most of the appellants join in two challenges related to jury selection: all save Perry argue that the jury pool was not composed of a fair cross-section of the community, and all calumnize the prosecution's use of a peremptory challenge to strike an African-American prospective juror. We find no merit in either of these assigned errors. A. The Fair Cross-Section Claim. The Constitution affords a criminal defendant the right to a trial "by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. This constitutional command requires that juries be selected from a representative cross-section of the community. See Duren v. Missouri, 439 U.S. 357, 358-59, 363-64 (1979); Taylor v. Louisiana, 419 U.S. 522, 528 (1975). Congress codified that requirement in the Jury Selection and Service Act, (JSSA), 28 U.S.C. 1861. The appellants assert that the venires from which the district court selected both their grand and petit juries defied this imperative. We do not agree. The appellants base their assertion on Rhode Island's failure to comply with the National Voter Registration Act (NVRA), 42 U.S.C. 1973gg to 1973gg-10 (1994). This statute, known colloquially as the motor voter law, took effect in Rhode Island on January 1, 1995. It requires states to accept voter registration applications in tandem with applications for drivers' licences and other permits, and to establish procedures to facilitate that process. See id. 1973gg-2(a), 5(a). Rhode Island has conceded that it did not fully comply with the NVRA. See League of Women Voters v. Rhode Island Bd. of Elections, No. 96-442ML (D.R.I. Sept. 12, 1996) (consent decree). Because the District of Rhode Island derives its jury wheel from the state's voter registration lists, see In re Amended Juror Selection Plan, Misc. No. 75-209 (D.R.I. Oct. 6, 1993), the appellants claim that this noncompliance rendered the District's jury venires unrepresentative and transgressed both the Sixth Amendment and the JSSA. This claim is fully preserved with respect to the five appellants who proffer it here. Although only Sepulveda and Boyd moved to dismiss the indictment on this basis, the district court permitted Lara, Roman, and Vasquez to adopt Sepulveda's and Boyd's position. Though preserved, the claim is unavailing. In order to establish a fair cross-section violation under either the Sixth Amendment or the JSSA, a criminal defendant must make a tripartite showing comprising cognizability (i.e., that the group alleged to be excluded is a distinctive group), underrepresentation (i.e., that the group is not fairly and reasonably represented in the venires from which juries are selected), and systematic exclusion (i.e., that the discerned underrepresentation is due to the group's systematic exclusion from the jury-selection process). See Duren, 439 U.S. at 364; United States v. Royal, ___ F.3d ___, ___ (1st Cir. 1999) [1999 WL 179003, at *4]. Assuming, arguendo, that the appellants have made the first of these three showings, they plainly have failed to satisfy either the second or third part of the test. Because the Duren test is conjunctive the proponent of a fair cross-section claim must satisfy all three of its elements either of these failings suffices to defeat the instant claims. We start with underrepresentation. A showing of underrepresentation must be predicated on more than mere guesswork. Such a showing requires competent proof (usually statistical in nature). See, e.g., Duren, 439 U.S. at 364-65; United States v. Pion, 25 F.3d 18, 22-23 (1st Cir. 1994); see also United States v. Hafen, 726 F.2d 21, 23-24 (1st Cir. 1984) (considering the statistical methodologies that might be used to determine underrepresentation and selecting the absolute disparity method). The single supporting document filed in the district court in connection with the appellants' motions to dismiss was an affidavit attesting to the legislative history and purposes of the NVRA, and the genesis of the consent decree. This affidavit does not supply any foundation for a finding that the representation of Hispanic venirepersons in the District was unfair, unreasonable, or in any way disproportionate to their numbers in the community. A successful fair cross-section claim also requires competent proof of the systematic nature of the exclusionary mechanisms leading to the underrepresentation. See Duren, 439 U.S. at 366-67; Royal, ___ F.3d at ___ [1999 WL 179003, at *4]. The supporting affidavit in this case offers no reason to believe that any systematic exclusion of Hispanics occurred in the selection process, let alone that it caused any material underrepresentation. The NVRA is addressed to heightening overall popular participation in federal elections, as well as to increasing voter registration by members of racial minorities. See 42 U.S.C. 1973gg. The naked fact of Rhode Island's noncompliance with the statute provides no insight into whether voter registration lists (and, therefore, the jury wheel compiled from those lists) were skewed for or against minorities if skewed at all. Since the appellants' proffer does not identify any systemic shortcoming or operational deficiency that would tend to lessen Hispanic representation in the master jury wheel disproportionately, it does not satisfy the third part of the Duren test. See Pion, 25 F.3d at 22-23. It follows inexorably from what we have said that the district court did not err in rejecting the pretrial motions to dismiss the indictment for want of a fair cross-section. B. The Batson Challenge. The appellants unanimously claim that the prosecution impermissibly used a peremptory challenge to banish a prospective juror, Bruce King, because of his race. We rehearse the events that undergird this complaint. Relatively late in the voir dire process, King, a black male, was tentatively seated. The district judge, the prosecutor, and several defense attorneys proceeded to question him. Sepulveda's lawyer noted that the evidence would include allusions to racial epithets and mention of the fact that many Latin King chapters did not welcome African Americans. He then asked whether such testimony might affect King's ability to decide the case. King replied, "I believe I can be a fair and impartial juror under any circumstance." Upon hearing this declaration, Perry began to applaud. The court silenced him and the voir dire continued. When the defense team had completed its interrogation of King, the prosecutor asked that Perry's effusion be placed on the record. He then queried King as to whether the applause made him uncomfortable. King responded in the negative, explaining that he did not know why Perry felt impelled to clap. Because the prosecutor's questions suggested a concern over whether the incident would jeopardize King's ability to render an impartial verdict, Roman's counsel requested an opportunity to discuss the matter. He debunked the notion that King had been compromised and emphasized that King was one of very few potential black jurors who might be eligible for service in the case perhaps the only one. Judge Lisi permitted King to leave for the day and reprimanded Perry, warning him that another outburst would result in his removal from the courtroom. The dialogue between the court and counsel then resumed. The prosecutor summarized his position and speculated that "[i]f we can find other black jurors in the panel to sit," he might use a peremptory strike to eject King from the jury. The day's proceedings ended without resolving the issue of King's continued service. The next day, the prosecutor moved to excuse King for cause and the parties argued the point. The district judge took the matter under advisement overnight. She ultimately denied the motion, explaining: On the record, that is, taking Mr. King's statements at face value as I do, I do not believe that cause exists to remove him from this panel. . . . [I]t appears from what I observed here in the courtroom and what occurred on the record afterwards with the colloquy between the Government and Mr. King, that Mr. King was not affected by Mr. Perry's action. When the time arrived for the parties to exercise their peremptory strikes, the government challenged King. The appellants branded this strike race-based and violative of the Equal Protection Clause. After hearing argument, the district court overruled their objections. Because this decision resolves a mixed question of law and fact that is peculiarly fact-sensitive, we review it for clear error. See United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994). It is by now common ground that race is an unconstitutional proxy for juror competence and impartiality, and, therefore, that criminal defendants have an equal protection right to jury selection procedures that are free from racial biases. See Powers v. Ohio, 499 U.S. 400, 404 (1991); Batson v. Kentucky, 476 U.S. 79, 89 (1986); Bergodere, 40 F.3d at 515. We have directed the use of a three-part framework to aid in assessing the validity of an allegation that the prosecution stooped to employ a race- based peremptory strike. See Bergodere, 40 F.3d at 515 (citing, inter alia, Batson, 476 U.S. at 96-98). This framework envisions that: [T]he defendant must make a prima facie showing of discrimination in the prosecutor's launching of the strike. If the defendant fulfills this requirement by establishing, say, a prima facie case of a racially driven impetus, then the prosecutor must proffer a race-neutral explanation for having challenged the juror. . . . If the prosecutor complies, then, at the third and final stage, the district court must decide whether the defendant has carried the ultimate burden of proving that the strike constituted purposeful discrimination on the basis of race. Id. (citations and footnote omitted). In deploying this framework, the prosecutor's second-step burden of proffering a race-neutral explanation for the strike "is merely a burden of production, not a burden of persuasion," and the defendant retains the devoir of persuasion throughout the course of the inquiry. Id. In this case, we can truncate the usual inquiry. In the district court, as here, the government tacitly acknowledged that the defendants had (or could have) offered a prima facie showing that the strike appeared discriminatory. Thus, the first step of the pavane need not detain us. See Hernandez v. New York, 500 U.S. 352, 359 (1991). At the second step, the government must advance a race- neutral explanation for its peremptory challenge. In an effort to meet this requirement, the prosecutor pointed to Perry's applause, theorizing that Perry might have been trying either to create an affinity with King or to intimidate him. In either event, the prosecutor stated, he feared that King's impartiality would wane, particularly after King learned of the atrocities that the government ascribed to Perry and his confederates. Although the appellants contended that this explanation was bogus, the district judge accepted it. King was excused, and the empanelment continued. When sworn, the jury included one juror who described himself as Mexican and one who appeared non-Caucasian (but from whom no racial information was elicited). We discern no clear error in Judge Lisi's ruling. In order to meet the second-step requirement, a prosecutor's explanation need only be unrelated to race on its face. At this point, neither the persuasiveness of the explanation nor the credibility of the prosecutor is at issue. See Purkett v. Elem, 514 U.S. 765, 768-69 (1995) (per curiam); Hernandez, 500 U.S. at 360. Perry's clearly inappropriate courtroom behavior and its potential effect on King's ability to serve as a juror are in no way related to race, and, thus, the proffered reason crosses this modest threshold. See, e.g., Purkett, 514 U.S. at 769 (finding prosecutor's explanation that strikes of black jurors were based on beards and long, unkempt hair to be race-neutral for purposes of the second Batson way station). This leaves the third, and final, determination: whether the appellants have proven that the strike constituted racial discrimination. This decision boils down to whether the appellants have convinced the district court that the race-neutral explanation furnished by the government rings hollow. Because the question is intensely fact-driven and the answer often pivots on credibility, appellate tribunals must scrutinize the trial court's response under a highly deferential glass. See Hernandez, 500 U.S. at 364- 65; Batson, 476 U.S. at 98 n.21. In this case, the trier credited the government's explanation: I have heard the explanation of the Government and I have observed [the prosecutor's] reaction to Mr. Perry's applause. And I cannot say that [the prosecutor's] challenge here is based on race. [His] challenge is based, as he says, on conduct and on the concern that he has and quite frankly, that the Court has as to what effect Mr. Perry's misbehavior would have on Juror King . . . . The judge also noted that she had observed no pattern of discrimination in the government's use of its peremptory challenges a fact that may be entitled to special weight in determining whether a prosecutor's race-neutral explanation for a peremptory challenge is pretextual. See Hernandez, 500 U.S. at 363. The appellants urge us to hold that Judge Lisi committed clear error in upholding the prosecutor's strike. They assert that she misunderstood the applicable legal standard, but the record belies this ipse dixit. They also harp on the prosecutor's earlier statement that he might consider exercising a peremptory challenge against King if other black jurors were empaneled. This statement, the appellants say, suggests that the government in certain circumstances would have left King on the jury solely because he was black, thus proving that the prosecutor had race in mind and deliberately injected it into the jury-selection calculus. While we do not defend the prosecutor's comment (which was both insensitive and unfortunate), we find no clear error in the district court's conclusion that the prosecutor's remark did not discredit his race-neutral explanation. See Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990) (explaining that no clear error exists unless review "on the whole of the record" generates "a strong, unyielding belief that a mistake has been made"). The governing principle, of course, is that a person's race must be regarded as "unrelated to his fitness as a juror." Batson, 476 U.S. at 87. Here, the record makes manifest that Judge Lisi took this principle fully into account, and her resolution of the issue of pretext based on her assessment of the prosecutor's demeanor and credibility cannot be disturbed. Perry's paroxysm injected an imponderable into the equation. Trial lawyers understandably fear the unknown, and that fear, in itself, is not indicative of a race-based viewpoint. When the prosecutor voiced this sort of concern, the district judge was well-situated to assess his candor. The judge did so here and we will not second- guess her assessment. After all, when the evidence gives rise to competing interpretations, each plausible, the factfinder's choice between them cannot be clearly erroneous. See Smith v. F.W. Morse & Co., 76 F.3d 413, 423 (1st Cir. 1996); Johnson v. Watts Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995). III. EVIDENTIARY ISSUES The appellants level a number of criticisms relating to the admission of evidence. Only three of these criticisms warrant discussion. A. Coconspirator Testimony. Boyd disputes the district court's admission of certain videotaped statements under Fed. R. Evid. 801(d)(2)(E). We sketch the circumstances. The government played videotapes for the jury during the trial. These videotapes had been secured with the cooperation of a confidential informant, Jose Ortiz, at whose home Latin King meetings sometimes were held. The videotape about which Boyd complains includes a solitary mention of him by Roman while discussing how Mendez's murder came about. Boyd contemporaneously objected to the admission of this evidence against him on the ground that it fell outside the scope of Rule 801(d)(2)(E). He also seasonably requested an instruction limiting the jury's consideration of the evidence to other defendants. The trial judge overruled the objection, admitted the evidence unconditionally, and declined to give the requested limiting instruction. We review challenges to the admission of evidence for abuse of discretion. See Williams v. Drake, 146 F.3d 44, 47 (1st Cir. 1998). On this basis, Boyd's challenge stumbles at the starting gate. His argument addresses the admissibility of the evidence solely in respect to the only charge on which the jury found him guilty the murder-in-aid-of-racketeering charge. But Boyd was also tried on (albeit not found guilty of) racketeering and racketeering conspiracy charges under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962, and he concedes that the tape was admissible against him vis- |