United States v. Lopez

United States Court of Appeals

For the First Circuit

No. 96-1968

UNITED STATES,

Appellee,

v.

ALBERTO LOPEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

James P. Duggan for appellant.

Heidi E. Brieger, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

June 12,1998

BOWNES, Senior Circuit Judge. Defendant-appellant

Alberto Lopez was convicted by a jury on four counts of federal

narcotics offenses and two counts of criminal forfeiture. The

indictment included as a co-defendant one Angel Carrion, who pled

guilty prior to trial on the counts directed against him

individually and as a co-conspirator. Lopez was convicted on all

the counts charged against him: conspiring to possess with intent

to distribute heroin and cocaine base (21 U.S.C. 846); possession

of heroin with intent to distribute (21 U.S.C. 841(a)(1));

possession of cocaine base with intent to distribute and

distribution (21 U.S.C. 841(a)(4)) (two counts); and two counts

of criminal forfeiture, of money and an automobile (21 U.S.C.

853).

Because of three prior narcotics convictions Lopez was

given the mandatory life sentence. This appeal followed. We

affirm.

Lopez raises five issues before us. One, the district

court violated his right to a fair trial by failing to follow

certain pre-trial orders. Two, violation of equal protection of

the laws by trying the case before an all-white jury and the

government striking a prospective Hispanic juror for no reason.

Three, ineffective assistance of counsel. Four, the district court

erroneously failed to enter a judgment of acquittal and failed to

find as a matter of law that Lopez had been entrapped. Five, the

district court committed plain error by the exclusion and admission

of evidence bearing on the entrapment issue.

A. Jury Composition

We start our review with the two issues involving the

composition of the jury. Prior to the impanelment of the jury,

defense counsel moved that the venire be dismissed because

defendant "is going to be denied a jury with a reasonable

likelihood of some of his peers, specifically, his ethnic group,

being on that particular panel." Counsel's motion was based on a

visual inspection of the venire and an examination of the jurors'

names on the venire list. The motion was denied on the basis that

the procedure followed in the Massachusetts district court had been

approved by the Court of Appeals for the First Circuit.

In Duren v. Missouri, 439 U.S. 357 (1979), the Court

established the requirements for attacking the composition of a

jury:

In order to establish a prima facie violation

of the fair-cross-section requirement, the

defendant 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 the group in the jury-selection process.

Id. at 364. Defendant has not met any of the three criteria.

In United States v. Pion, 25 F.3d 18 (1st Cir. 1994), we

rejected an attack on the composition of juries in the district

court of Massachusetts based on under-representation of the

Hispanic population. This attack was much better directed and

armed than the one mounted before us. It was based on statistical

evidence "indicating a 3.4% 'absolute disparity' between the 4.2%

Hispanic representation in the relevant general population and the

0.80% Hispanic representation among persons appearing for juror

orientation." Id. at 23. In our opinion we held:

The first infirmity in the unfair cross-

section claim is that the district court

found, and Pion does not dispute, that the

broadest data available resident lists are

used to make up the Master Jury Wheel from

which Eastern Division jury venires are drawn.

There is no allegation, much less a showing,

statistical or otherwise, that data more

conducive to a fair cross section are

available, let alone more fairly

representative of eligible Hispanics in the

relevant general population. Second, since

the names included in the Master Jury Wheel

are randomly drawn from the most inclusive

data available, and random selection also

determines to whom juror questionnaires are

mailed, there can be no reasonable inference

that the jury-selection process itself

systematically excludes Hispanics at any stage

up to and including the distribution of juror

questionnaires.

Id. We further held:

With no datum as to Hispanic representation on

the Master Jury Wheel, and given the fact that

the baseline data for comprising the Master

Jury Wheel are the best available, there can

be no reasonable inference that the relatively

small Hispanic underrepresentation at juror

orientation is attributable to anything other

than the randomness of the draw from either

the resident lists or the Master Jury Wheel.

Id. at 24. In light of these rulings, defendant has no basis for

a fair cross-section challenge based only on visual observation and

an examination of the venire's names.

Defendant's challenges to the prosecutor's striking of a

prospective Hispanic juror does not get off the ground because

there was no objection made at trial. The defining case for racial

based challenges is Batson v. Kentucky, 476 U.S. 79 (1986). There

is no need to reiterate the standards for showing that the striking

of a juror (or jurors) was racially motivated, see id. at 96-98;

such a challenge should start with an objection by defense counsel

and there was none here. Our standard of review is, therefore,

plain error. See United States v. Perez, 35 F.3d 632, 635 (1st

Cir. 1994). There was no plain error.

B. Failure of the Government and District

Court to Follow a Pre-trial Order

The essence of defendant's claim is that the court, aided

and abetted by the prosecutor, pressed for trial contrary to a pre-

trial order issued by the magistrate judge and this deprived

defense counsel of the time necessary to prepare an effective

defense.

The order that is the fulcrum for defendant's argument

was issued on July 18, 1995, by the magistrate judge. It stated:

Request 6 and 7 - Early release of Jencks Act

material and names and addresses of government

witnesses.

The government agrees to disclose Jencks

Act material and the names and addresses of

government witnesses fourteen days prior to

trial. To the extent of this compliance, the

defendant's motion is allowed.

The district court judge set the trial date for August 7,

1995 at 9:00 a.m. Defense counsel received the notice of the trial

date on July 31, 1995. He immediately informed the court by letter

received at the clerk's office on August 1, 1995, that the

government had not produced "a variety of materials" which it had

been ordered to produce two weeks prior to trial. The letter

further stated that the materials not produced included "materials

I believe may be exculpatory, materials which might lead to and

require further investigation, and tape cassette recordings some of

which may be in Spanish and may portend translation difficulties."

On August 7, the date set for the trial to commence,

defense counsel filed a written motion for a continuance and argued

orally that, because he had not yet received the materials, he

needed a continuance to properly prepare for trial.

The district court denied the motion for a continuance,

but ordered that the jury would be impaneled on August 7th and

trial would start on August 9th. This meant that counsel had ten

days notice of the start of trial, not fourteen days as ordered by

the magistrate.

On August 9th counsel for the defendant again moved for

a continuance. On the same day defendant Lopez personally moved

that the court dismiss his present attorney and appoint a new one.

After a hearing, the court denied both motions, stating:

THE COURT: All right. The Court has now

had an opportunity to hear the defendant and

defendant's counsel ex parte outside the

hearing of the government with respect,

specifically, to the defendant's motion to

dismiss his appointed attorney and to have

this Court appoint a new attorney; and,

further, his motion objecting to the Court's

not allowing him to address the Court and to

request a further request for a stay of

these proceedings.

The Court, after consideration, is going to

deny both of those motions and proceed to

trial.

The Court believes that the defendant has

not given or stated grounds that present a

conflict with his own attorney or that warrant

the dismissal of his attorney for the reasons

stated in those motions.

The defendant further, with respect to his

motion to continue, is denied, and I will be

specific with respect to the several reasons

that he has given to continue this trial.

First, he said that he's been presented

today with new impeachment evidence. The

Court finds that such evidence is not

substantial and is digestible in the amount of

time that he will have to consider this

evidence; namely, from now until the time that

he will be called upon to cross-examine the

witness to be put on by the government.

The defendant also claims that there have

been revisions to the transcripts. The Court

believes that those revisions are minor in

nature; and, furthermore, that the transcripts

are not lengthy and that the defendant has had

those transcripts for approximately one week.

Third ground for continuance, was the

alleged extensive involvement of the

confidential informant which the Court

understands, or who the Court understands the

government will not be calling. And the

defendant has not stated other sufficient

grounds on which to base a continuance because

of the confidential informant's involvement.

The defendant has also moved for a

continuance on the grounds that he, the

defendant, himself, has not had time to listen

to all of the tapes, but the defendant has had

access to transcripts of those taped

conversations, and the Court finds that

sufficient.

Finally, the defendant's counsel stated

before the break that the final status report

of the magistrate/judge wasn't issued until

July 18th, but at that time there were no

motions pending in this case, and the

defendant does stand forewarned at that point

when a magistrate/judge files a final pretrial

or final status report, that trial is

imminent.

We make two observations. First, the court did not say

anything about the government agreement, as contained in the

magistrate judge's pre-trial order, "to disclose Jencks Act

material and the names and addresses of government witnesses

fourteen days prior to trial." Our second observation is that

Lopez's motion to dismiss his present counsel and appoint a new one

would have, if granted, resulted in a lengthy continuance. We also

note that the denial of the motion to appoint new counsel has not

been appealed.

We are aware, of course, that review of a denial of a

motion for continuance is under the abuse of discretion standard.

See United States v. Neal, 36 F.3d 1190, 1205 (1st Cir. 1994). But

this was not a routine denial of a requested continuance.

Defendant asserts that he was entitled to rely on the order of the

magistrate judge specifying that the government would disclose the

requested information fourteen days prior to trial. Parties are

entitled to rely on pre-trial orders of the district court; they

are a vital link in the trial process. We, therefore, must

determine whether jump-starting the trial deprived the defendant of

a fair trial.

Defendant argues that the "Confidential Informant was

never located, nor subpoenaed to trial." Br. at 35. This

contention is without merit. The government informed defense

counsel of the name of the informant, and that he would not be

called as a government witness. Defendant had known the

confidential informant for a number of years. During a bench

conference defense counsel stated, "They can call Mr. Cruz [the

confidential informant], I could call Mr. Cruz but they both talk

about the same conversations." (Emphasis ours.) It seems rather

evident that neither party wanted Cruz to testify.

The government states that it furnished all of the

information requested by the defense. It states that it made

available for inspection and copying all of the consensual tape

recordings of the negotiations between defendant and government

agents on March 13, 1995. At the same time the government provided

defense counsel with copies of DEA reports relative to the tape-

recorded conversations.

At least five days prior to trial, defense counsel was

furnished with a complete set of the Spanish and English

transcripts of the tape recordings by the government. And at least

five to six days prior to each witness's testimony at trial, the

government provided Jencks Act statements to defense counsel. The

government points out that this exceeds the requirements of the

Jencks Act, which it does. See 18 U.S.C. 3500(a) (no statement

of a government witness "shall be the subject of subpena [sic],

discovery, or inspection until said witness has testified on direct

examination in the trial of the case." But the government had

agreed to produce the statements fourteen days prior to the start

of trial and the court had so ordered.

In light of the magistrate judge's pre-trial order we

think the district court should have given the parties fourteen

days notice of the start of the trial. We are fully aware of the

pressure on busy district court judges to try cases as

expeditiously as possible. The court, however, also has a duty to

follow its own pre-trial orders. This is especially so when

defense counsel claims that a deviation from the order will impair

his ability to mount a proper defense. In this case, conviction

meant a life sentence for the defendant.

Based on our careful review of the record we cannot find

that the failure to follow the magistrate judge's order seriously

prejudiced the defendant. It clearly did not deprive him of a fair

trial. Defense counsel was able to cope effectively with the

shortened period of preparation. He was furnished with all of the

transcriptions, Spanish and English, of the wire recordings of the

drug transactions at least five days before the trial started.

Despite one minor delay due to poor communication between the court

and the officials in charge of defendant's place of confinement in

Plymouth, Massachusetts, defendant was able to examine the Spanish

version of the wire recordings and discuss them with his attorney.

We must note here that the court insisted that defendant and

defense counsel be furnished the materials sought as promptly as

possible. Although we are sure that defense counsel was put under

extra pressure because of the advanced trial date, he responded

ably and used the materials furnished by the government

effectively.

C. The Entrapment Defense

The only defense that defendant pursued, and the only one

realistically available, was that he had been entrapped by an

acquaintance of long-standing, Pedro Cruz. Cruz had been

associated with defendant in prior drug sales. Cruz was a

confidential informant employed by the DEA during the time of the

charged offenses.

Before defendant took the stand, the court advised

defense counsel that, if defendant asserted entrapment and

testified, his prior drug convictions could be used on cross-

examination by the government on the issue of predisposition.

Defense counsel objected to this ruling. The court gave defendant

additional time to consider his options. After the prosecutor had,

during cross-examination, brought out defendant's prior

convictions, the judge instructed the jury as follows:

Jurors, the evidence regarding the alleged

crimes previously committed by Mr. Lopez

should not be used by you as evidence that he

actually committed the crimes charged in this

case.

The prior crimes are offered by the

government only in its attempt to rebut the

testimony of the defendant and to show that

the defendant was predisposed or inclined to

commit a crime such as those which have been

charged in this case.

On direct examination defendant testified that he had

been addicted to heroin and cocaine in the past. To conquer his

addiction he had joined both narcotics anonymous (NA) and

alcoholics anonymous (AA). He had overcome his addiction and

obtained a good paying job. For about three years he led a normal

life; he was a loving father and a devoted husband. His life

started to unravel when the confidential informant, Pedro Cruz,

started calling him in May of 1994 and importuning him to obtain

drugs for sale to customers. Unfortunately for defendant, the

customers were undercover DEA agents.

When defense counsel asked defendant what Cruz had said

to him during the telephone conversations, the government objected

on hearsay grounds ("classic hearsay") and the court upheld the

objection. Defense counsel objected to the ruling and argued

strenuously that Cruz's telephone statements should be allowed in

evidence because they were vital to the entrapment defense. The

judge adamantly refused to allow the testimony. He did, however,

rule that defendant could be asked "about the phone calls he got,

how many meetings they [had], what they did, but he cannot get into

evidence out-of-court-statements." The court added: "He can say

what he did as the result of the phone calls."

Counsel, however, did not raise the one argument that

might have been accepted by the court: that the testimony was not

offered for the truth of the matter asserted but to show

defendant's state of mind as bearing on the entrapment defense, and

therefore was not hearsay. See United States v. Cantu, 876 F.2d

1134, 1137 (5th Cir. 1989); 5 Jack B. Weinstein & Margaret A.

Berger, Weinstein's Federal Evidence, 801.03 (Joseph M.

McLaughlin, ed., Matthew Bender 2d ed. 1998). Because defendant

failed to raise this argument below, he is precluded from pursuing

it on appeal; we consider it waived. See United States v. Cardoza,

129 F.3d 6, 19 (1st Cir. 1997).

Although defense counsel was not able to put in evidence

defendant's testimony as to what Lopez had said during the numerous

phone calls assertedly made by Cruz, he was able by dint of

persistent and adroit questioning to paint a picture of Cruz

repeatedly asking defendant to come back into the drug business.

Defendant testified that at first he refused Cruz's requests, but

finally caved in "to get him off my back."

Defense counsel then asked him: "What was your state of

mind at that time, Sir?" The response was: "He was like trying to

make me do something that I didn't want to do."

Defendant testified in effect that, as a result of Cruz

inducing him back into the drug trade, he became an addict again

and that, over time, his state of mind changed.

Although Cruz's telephone statements were not hearsay,

evidence was submitted to the jury sufficient for it to find

entrapment, if it chose to do so. And the court gave an entrapment

instruction which has not been attacked on appeal.

It is not difficult to understand the jury's guilty

verdict. There was a mass of overwhelming evidence against the

defendant. In addition to transcripts of wire recordings of what

was said by defendant and his cohorts at the various drug

transactions and set-up meetings, there was testimony by three DEA

agents and one Massachusetts state trooper, who either were

directly involved in drug sales in which defendant was a

participant or observed him during surveillance of the drug

transactions. The other issues raised by defendant merit only

scant discussion.

The ineffective assistance of counsel claim is deferred

until after it is considered by the district court. See United

States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) ("We have held

with a regularity bordering on monotonous that fact-specific claims

of ineffective assistance cannot make their debut on direct review

of criminal convictions, but, rather, must originally be presented

to, and acted upon by, the trial court.").

The district court did not err in failing to enter a

judgment of acquittal. Nor did it err in failing to rule as a

matter of law that defendant had been entrapped. And the district

court did not commit plain error in its evidentiary rulings during

the entrapment part of the trial.

The judgment below is Affirmed.