Petition for Writ of Certiorari — Lopez Cantu v. United States

(‘) Supreme : Nar te

981928 JUN; J999

No.

OFFICE 6 tHe ers py

In The

Supreme Court of the United States

JAVIER LOPEZ CANTU,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Curis FLoop

FLoop & FLoop

914 Preston, Suite 800

Houston, Texas 77002

(713) 223-8877

Counsel of Record for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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Lilet ot ip i NR

1.

QUESTIONS PRESENTED

WHETHER THE FIFTH CIRCUIT’S DECISION TO

AFFIRM THE TRIAL COURT’S REFUSAL TO CON-

DUCT AN EVIDENTIARY HEARING TO DETER-

MINE WHETHER EXTERNAL INFLUENCE WAS

PLACED UPON THE JURY DURING DELIBERA-

TIONS, AFTER A FINDING THAT ONE OF THE

JURORS HAD BEEN OFFERED A BRIBE TO

RETURN A VERDICT OF NOT GUILTY, IS A VIOLA-

TION OF PETITIONER’S RIGHT TO DUE PROCESS

UNDER THE UNITED STATES CONSTITUTION.

WHETHER THE FIFTH CIRCUIT’S DECISION TO

AFFIRM THE TRIAL COURT’S DENIAL OF PETI-

TIONER’S MOTION FOR NEW TRIAL, AND

MOTION FOR MEANINGFUL ACCESS TO THE

JURORS WITHOUT A HEARING VIOLATED PETI-

TIONER’S SIXTH AMENDMENT RIGHT TO AN

IMPARTIAL JURY, REQUIRING THIS COURT TO

EXERCISE ITS SUPERVISORY POWER.

WHETHER THE FIFTH CIRCUIT’S DECISION TO

AFFIRM THE TRIAL COURT’S DENIAL OF PETI-

TIONER’S MOTION FOR NEW TRIAL AND

MOTION FOR MEANINGFUL ACCESS TO THE

JURORS WITHOUT A HEARING, WAS AN ABUSE

OF DISCRETION AND IN CONFLICT WITH THIS

COURT’S DECISION IN REMMER V. UNITED

STATES, 347 U.S. 227, 74 S.CT. 450, 98 L.ED. 654

(1954), AND SMITH V. PHILLIPS, 455 U.S. 209, 102

S.CT. 940, 71 L.ED.2D 78 (1982).

WHETHER THE FIFTH CIRCUIT’S AFFIRMATION

OF THE DISTRICT COURT’S DENIAL OF PETI-

TIONER’S MOTION FOR NEW TRIAL AND PETI-

TIONER’S MOTION FOR MEANINGFUL ACCESS

TO THE JURORS AFTER THE VERDICT WITHOUT

A HEARING WAS AN ABUSE OF DISCRETION

li

QUESTIONS PRESENTED - Continued

AND IN CONFLICT WITH THE PRIOR DECISIONS

OF THE FIFTH CIRCUIT IN UNITED STATES V.

SYLVESTER, 143 F.3D 923 (5TH CIR. 1998); UNITED

STATES V. DENMAN, 100 F.3D 399 (5TH CIR. 1996);

LiNITED STATES V. JOBE, 101 F.3d 1046 (5TH CIR.

1996); UNITED STATES V. SANCHEZ-SOTELO, 8 F.3D

202, 212 (5TH CIR. 1993); UNITED STATES V. WEBS-

TER, 750 F.2D 307 (5TH CIR. 1984); LLEWELLYN V.

STYNCHCOMBE, 609 F.2D 194 (5TH CIR. 1980);

UNITED STATES V. WINKLE, 587 F.2D 705 (5TH

CIR.), CERT. DEN., 444 U.S. 827, 100 S.CT. 51, 62

L.ED.2D 34 (1979); AND UNITED STATES V. CHIAN-

TESE, 582 F.2D 974 (5TH CIR. 1978).

TABLE OF CONTENTS

Page

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TEs 65s ccccccccseveesccececees iii

RR FRR EPIIO OED ooo vccvectveccccncesecies iv

CITATIONS OF OPINIONS IN THE CASE......... 1

STATEMENT OF JURISDICTION................... 1

CONSTITUTIONAL PROVISIONS.................. 1

pamemmenres OF THE CASE........ccccccccccesees 2

PRGUMENT «20.0.2 sccccsccctecessnccccrcesecceres 5

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crc etiveesesswens¥aedvsactsveees App. 21

TABLE OF AUTHORITIES

Page

Cases

Llewellyn v. Stynchcombe, 609 F.2d 194 (5th Cir.

Ws cove Raceckdcenennesisksee se eee ii

Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450,

OS Ee, Ge ko bk awe eendeeisaseseueravers se

Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 |

ek e.g. | Nr er Sor een Tere i

United States v. Chiantese, 582 F.2d 974 (5th Cir.

Peep re ee pega rr os mee pm re Poe ii

United States v. Denman, 100 F.3d 399 (5th Cir.

sins ek ce ban v0ehehendeecbee cae eecetasneneen i, 6

United States v. Howard, 506 F.2d 865 (5th Cir. 1975) ...5, 8

United States v. Jobe, 101 F.3d 1046 (5th Cir. 1996)..... il

United States v. Webster, 750 F.2d 307 (5th Cir. 1984) ..... ii

United States v. Winkle, 587 F.2d 705 (5th Cir.), cert.

den., 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34

SPOR ab petuies cede edeverheetanen dence ii, 5, 8

United States v. Sanchez-Sotelo, 8 F.3d 202 (5th Cir.

Sac cccvecaciteadseniccensaeels teenie aess i, 7

United States v. Sylvester, 143 F.3d 923 (5th Cir.

sc deka der achcs deeds’ ai esusateneeeieos tee i, 6

STATUTES

Title 18 § 1956, United States Code................ 2

Title 21 § 841, United States Code.................

Title 21 § 846, United States Code................. Ae

Title 28 § 1254, United States Code .. 2... cccccccorcss 1

CITATIONS OF OPINIONS IN THE CASE

United States of America v. Cantu; No. 97-40930 in

the United States Court of Appeals for the Fifth Circuit;

United States District Court No. B-97-CR-20.

¢

STATEMENT OF JURISDICTION

The trial court had jurisdiction because Petitioner

was indicted for violations of 21 U.S.C. §§ 841, 846 and 18

U.S.C. § 1956. The opinion of the United States Court of

Appeals for the Fifth Circuit affirming Petitioner’s con-

viction was entered on February 3, 1999. (Appendix A).

On February 17, 1999 Petitioner filed a Petition for

Rehearing and a Suggestion for Rehearing En Banc. The

Order denying Petitioner’s Petition for Rehearing and

Suggestion for Rehearing En Banc was filed March 2,

1999. (Appendix B). This petition is filed within ninety

(90) days of that date. The jurisdiction of this Court to

review the judgement on petition for certiorari rests upon

28 U.S.C. § 1254(1) and Supreme Court Rule 10.

¢

CONSTITUTIONAL PROVISIONS

ARTICLE [V] - FIFTH AMENDMENT

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal case to be a witness against himself,

2

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

ARTICLE [VI] - SIXTH AMENDMENT

\

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defence.

STATEMENT OF THE CASE

On February 3, 1997, Petitioner was charged in a

nine-count indictment with violations of 21 U.S.C. §§ 841,

846 and 18 U.S.C. § 1956.

The trial began on April 18, 1997 and concluded on

April 26, 1997. On that date at approximately 8:50 a.m.,

counsel was brought to the District Court’s chambers,

where Juror James Almaraz was present before the Court,

the prosecutor, and the court reporter. The jurors had

already deliberated for one day and Juror Almaraz

reported an incident wherein he had been approached the

evening before by an individual named Rene DeLaRosa.

Juror Almaraz, through questions by the Court, gave a

detailed account of an attempt by Mr. DeLaRosa to tam-

per with the juror’s decision. Juror Almaraz stated that

Rene DeLaRosa informed him that the Defendant was guilty

of the charges, but that if Juror Almaraz would vote not

guilty, then an economic benefit would be given to him.

Juror Almaraz also informed the Court that his girlfriend

had been approached at work by another individual who

had made a similar offer. Specifically, Juror Almaraz’s

girlfriend informed him that one of her co-workers sent a

message asking Juror Almaraz to vote for Defendant's

innocence, and that the girlfriend would receive some

money.

The Court excused Juror Almaraz, and proceeded to

allow the jury to continue deliberations with only eleven

jurors, over defense counsel’s objection. Both parties then

agreed to ask the Court to make an individual inquiry of

the remaining jurors about whether they had been

exposed to any external information, including but not

limited to whether any attempts had been made to tam-

per with the remaining jurors or whether the jurors had

been informed that Defendant was guilty of the alleged

charges or if Juror Almaraz had informed the remaining

jurors of the attempted bribery. The Court denied both

parties’ request to interview the remaining jurors.

The jury returned a verdict and counsel for Defen-

dant requested access to the jurors to interview each

individual juror to determine if there were any outside

influences injected into the deliberations, which the Court

denied.

On May 5, 1997, counsel for Defendant filed a motion

for new trial, alleging that Defendant was denied his

right to a fair trial pursuant to the Sixth Amendment to

the United States Constitution, due to the Court’s denial

of a motion for mistrial after the jury tampering incident

was revealed, and by refusing Defendant's counsel access

to the remaining eleven jurors to determine whether there

had been any attempts to tamper with them or if they had

been told during deliberations of the attempt to bribe

Juror Almaraz. Counsel also filed a Motion for Meaning-

ful Access to the Jurors in an attempt to determine the

extent of the external evidence exposed to the jurors,

which was also denied.

On July 15, 1997, Defendant was sentenced to 360

months in the custody of the Bureau of Prisons and a

supervised release term of five (5) years on Count One,

and 240 months in the custody of the Bureau of Prisons

and a supervised term of three (3) years on Count Nine,

to run concurrently. (Appendix B)

Petitioner timely gave notice of appeal and on April

29, 1998 filed his brief in the United States Court of

Appeals for the Fifth Circuit.

Petitioner’s conviction was affirmed by a panel of the

Fifth Circuit on February 3, 1999 (Appendix A).

On February 17, 1999 Petitioner filed a Petition For

Rehearing and a Suggestion For Rehearing En Banc,

pointing out to the panel and the entire court that the

trial court had not conducted a hearing with all parties

present wherein Juror Almaraz reported he had not

talked to any of the other jurors about the bribery attempt

or conducted a hearing to determine whether any of the

other jurors had been tainted by external evidence after a

showing of an attempt to bribe at least one juror.

The Fifth Circuit Court of Appeals denied Peti-

tioner’s Petition for Rehearing and Suggestion for

Rehearing En Banc on March 2, 1999. (Appendix C).

«

ARGUMENT

This Court explained the proper procedure for han-

dling investigations of jury tampering in Remmer v. United

States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). In

Remmer, like in this case, a juror was approached by a

third party offering a bribe in exchange for a favorable

verdict. The juror declined the offer, but ex parte with the

trial judge was later interviewed by the FBI. The judge

concluded the juror was unbiased, and the defendant was

convicted. This court vacated the conviction, holding that

a trial court should not take final action ex parte but

“should determine the circumstances, the impact thereof

upon the juror, and whether or not it was prejudicial, in a

hearing with all interested parties permitted to partici-

pate.” Id. at 229-30, 74 S.Ct. at 451.

The Fifth Circuit Court of Appeals in United States v.

Winkle, 587 F.2d 705 (5th Cir.), cert. den., 444 U.S. 827, 100

S.Ct. 51, 62 L.Ed.2d 34 (1979), and United States v. Howard,

506 F.2d 865 (5th Cir. 1975) stated:

Where a colorable showing of extrinsic influence

appears, a court must investigate the asserted

impropriety:

The evidentiary inquiry before the district court

. . must be limited to objective demonstration

of extrinsic factual matter disclosed in the jury

room. Having determined the precise quality of

the jury breach, if any, the district court must

then determine whether there was a reasonable

probability that the breach was prejudicial to the

defendant... .” Winkle, 587 F.2d at 714; Howard,

506 F.2d at 869.

re

To put it simply, once a finding of juror tampering

has been found, the District Court must conduct a hear-

ing to determine the quality of the breach. In the present

case, the questioning of Juror Almaraz was insufficient to

determine the “precise quality” of the jury breach

because there were no questions asked about whether he

had told the other eleven jurors and there was no ques-

tioning of the other jurors. Therefore, the questioning of

the District Court was insufficient under both Remmer

and the Fifth Circuit standard.

The Fifth Circuit has also adhered to the strict rule of

law that when the possibility of outside influence on the

jury arises, “the failure to hold a hearing in such situation

constitutes an abuse of discretion and is reversible error.”

United States v. Denman, 100 F.3d 399, 405 (5th Cir. 1996); ;

see also U.S. v. Sylvester, 143 F.3d 923, 932 (5th Cir. 1998).

Furthermore, the panel for the Fifth Circuit misun-

derstood the state of the record. Counsel and Petitioner

were not present for any questioning wherein juror Alma-

raz reported that he had not talked to any of the other

jurors about what had occurred.

Beginning on page 1479 of volume 7 of the transcript

of trial proceedings, the court began questioning Juror

Almaraz with both attorneys present. A complete review

of the court’s interview of Juror Almaraz continuing until

page 1492 reflects no indication that Juror Almaraz had

not reported the impermissible extraneous influence to

the remaining eleven jurors. Beginning at page 1497, the

court allowed counsel for the government and counsel for

Petitioner to question Juror Almaraz; counsel for Peti-

tioner was cut short. Counsel for Petitioner was not

allowed to question Juror Almaraz about whether he

related the alleged bribery attempt to the remaining

eleven jurors. A careful reading of pages 1497 through

1502 does not support the panel’s finding on page 3 of the

opinion, wherein it states: “ ... Almaraz i dicated that he

had not been approached prior to the night before he

reported the incidents to the court and had not talked to

anyone about what had occurred.” It further does not sup-

port the panel’s finding on page 5 of the opinion: ” . . . it

was not necessary to voir dire the remaining jurors

because Almaraz had told no other member of the jury

about the incidents, ... ”

Later, at page 1509, at the request of both the attorney

for the government and attorney for Petitioner, the trial

judge took the bench and the parties made a joint request

to question each of the remaining jurors individually to

determine if they had been subjected to impermissible

extraneous influence or been told by Juror Almaraz of the

attempts to influence him. That request was denied

before the guilt-innocence verdicts by the jurors. (Vol. 7,

p- 1509, 1. 3-9).

The District Court further abused his discretion when

he denied Petitioner’s Motion For New Trial without a

hearing, once again failing to properly investigate where

a colorable showing of extrinsic influence had appeared.

U.S. v. Sanchez-Sotello, 8 F.3d 202, 213 (5th Cir. 1993). The

trial court’s denial of Petitioner’s post-verdict request for

a hearing by way of his Motion For New Trial and Motion

For Meaningful Access to the Jurors deprived Petitioner

of his right to an evidentiary inquiry by the District Court

wherein the court determines the quality of the jury

breach, if any, and whether there was a reasonable proba-

bility that the breach was prejudicial to the defendant.

Winkle, supra, 587 F.2d at 714; Howard, supra, 506 F.2d at

869.

As this Court stated in Remmer, supra, and the Fifth

Circuit stated in Winkle and Howard, prejudice is assumed

in the form of a rebuttable presumption, and the burden

is on the government to demonstrate the harmlessness of

any breach to the defendant. Id.; 347 U.S. at 229; 74 S.Ct.

at 451.

The Fifth Circuit also misapprehended the record

when the panel wrote:

The hearing conducted by the district court was

adequate to determine whether it was necessary

to interview the remaining jurors. Almaraz indi-

cated that the two incidents occurred the night

before he reported them to the court and that he

had not told anyone else about what had

occurred. In light of these answers and in view

of the potential disruptive effect of questioning

all remaining jurors, the district court did not

abuse its discretion in the way it handled the

allegations of outside influence on the jury or in

denying Cantu’s motion for new trial. (Panel op.

at p. 6)

There is nothing in the record to indicate that Juror

Almaraz had not told the remaining eleven jurors about

the incident. The “potentially disruptive effect of ques-

tioning all remaining jurors” was moot after the trial.

¢

CONCLUSION

The trial court abused its discretion in denying coun-

sel for Petitioner access to the jurors. The trial court also

abused its discretion in denying Defendant’s Motion for

New Trial and by failing to conduct an evidentiary hear-

ing to investigate a colorable claim of prejudicial extrinsic

jury influence. The denial of Petitioner’s petition for

Rehearing and Suggestion for Rehearing En Banc was

improper. The ruling of the Court of Appeals is contrary

to prior rulings of this court, prior rulings of the Fifth

Circuit, and is violative of Petitioner’s rights under the

Fifth and Sixth Amendments to the United States Consti-

tution. This petition should be granted.

Respectfully submitted,

Curis FLoop

FLoop & FLoop

Counsel of Record for Petitioner

914 Preston, Suite 800

Houston, Texas 77002

(713) 223-8877

App. 1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40930

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER LOPEZ CANTU,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(Filed Febr. 3, 1999)

Before SMITH, DUHE, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

Defendant-Appellant Javier Lopez Cantu appeals his

convictions for (1) conspiracy to possess 1,000 kilograms

or more of marijuana with intent to distribute and (2)

conspiracy to launder drug proceeds. He further chal-

lenges the jury’s verdict of forfeiture of property under 21

U.S.C. § 853. For the reasons set forth below, we affirm

both the convictions and the forfeiture verdict.

App. 2

I.

FACTS AND PROCEEDINGS

In April 1995, Mark Miller was stopped by police for

a routine traffic violation about 200 miles outside of

Houston. When the police discovered that Miller was

transporting approximately 200 pounds of marijuana, he

agreed to cooperate with them.

The police disabled Miller’s vehicle and instructed

him to call the persons for whom he was delivering the

marijuana and ask them for assistance. He did so, and

approximately four hours later, Fabian Cavazos and the

defendant-appellant’s brother, Roy Cantu, arrived driv-

ing separate vehicles. The officers observed the two men

transfer the marijuana into the newly-arrived vehicles,

then arrested them. After Miller, Cavazos, and Roy Cantu

identified defendant-appellant Cantu as the leader of the

marijuana-distribution organization for which they

worked, officials investigated and eventually arrested

him. The government’s evidence against Cantu at trial

consisted largely of (1) testimony from some of his

employees who had already pleaded guilty to narcotics

offenses regarding Cantu’s leadership role in a narcotics

ring and (2) documentary evidence, such as phone

records and ownership records of vehicles and resi-

dences, linking Cantu to the marijuana organization.

The jury convicted Cantu of the conspiracy charges,

but acquitted him of the charge of possession of mari-

juana with intent to distribute. The jury also entered a

verdict of forfeiture as to eleven properties.

On the morning of the second day of jury delibera-

tions during the guilt-innocence phase of the trial, but

App. 3

before the jury had begun that day’s deliberations, a juror

named James Almaraz reported to the court that the night

before he had been approached by Rene De La Rosa

regarding the trial. With the attorneys for both parties

present, the district court held a hearing in chambers. In

response to questioning by the court, Almaraz reported

that he was approached by De La Rosa who stated that he

was “real good friends with [Cantu] and he knows what

[Cantu] does, but he just told me that he would appreci-

ate if I would testify [sic] that [Cantu] was innocent.”

Almaraz also informed the court that one of his girl-

friend’s coworkers had passed a message to him through

his girlfriend that, if he voted to acquit Cantu, the co-

worker would “give [him] some money.” Almaraz indi-

cated that he had not been approached prior to the night

before he reported the incidents to the court and had not

talked to anyone about what had occurred.

The district court allowed counsel for both parties to

question Almaraz and then asked whether they would

consent to the removal of Almaraz from the jury. Even

though Cantu’s attorney stated that he was not willing to

consent to Almaraz’s removal until he spoke to his client,

the district court dismissed Almaraz immediately and

then instructed the remaining jurors not to consider the

excusal of the twelfth juror for any purpose.

After the jury returned its guilt-innocence verdicts

and while it was deliberating on the forfeiture issue,

Cantu requested permission to interview the remaining

eleven jurors to determine whether any of them had been

approached by anyone or whether any of them had heard

of the incidents involving Almaraz. The district court

App. 4

denied this request. Cantu later filed a motion and sup-

porting memorandum, seeking meaningful access to the

jurors. In these filings, Cantu’s counsel asserted that he

had learned from an unnamed source that one of the

remaining jurors had been told that Cantu had been

convicted of a drug trafficking offense on at least one

prior occasion. Cantu repeated this assertion in the mem-

orandum he submitted in support of his motion for a new

trial. The district court denied both motions.

In addition to challenging the district court’s han-

dling of the failed jury tampering incident, Cantu asserts

for the first time on appeal that the district court (1)

through its questioning of particular witnesses, improp-

erly created the impression that the court was partial to

the government; (2) erred in admitting hearsay evidence;

and (3) erred in permitting the eleven members of the

jury who remained after the dismissal of Almaraz to

render a verdict on the forfeiture issue, rather than dis-

missing the jury and granting Cantu an entirely new trial

before a new jury, limited to forfeiture.

II.

ANALYSIS

A. Jury Tampering Incident

1. Standard of Review

We review a district court’s determination that the

jury was not improperly tainted by extrinsic evidence

under the clearly erroneous standard,! and its choice of

1 United States v. Kelley, 140 F.3d 596, 608 (5th Cir.), cert.

denied, 119 S. Ct. 247 (1998).

ee

App. 5

methods to investigate the possibility of extrinsic taint for

abuse of discretion.2 We also review a district court’s

denial of a motion for a new trial for abuse of discretion.?

2. Merits

Cantu asserts that the district court erred in (1) fail-

ing to conduct an evidentiary hearing to investigate

whether the remaining jurors had been exposed to extrin-

sic influence; (2) refusing to grant Cantu access to the

remaining jurors; and (3) refusing to grant Cantu’s

motion for a new trial.

“(T]he remedy for allegations of juror impartiality is

a hearing in which the defendant has the opportunity to

prove actual bias.”* The district court is not, however,

required to conduct a “full-blown evidentiary hearing in

every instance in which an outside influence is brought to

bear on a petit jury.”5 Here, in the presence of defense

counsel and the prosecutor, the district court questioned

Juror Almaraz in chambers regarding the two attempted

tampering incidents that he had reported. Counsel for

both parties were present throughout the hearing and

were allowed to examine Almaraz. In light of his

responses, the court determined that, although Almaraz

2 United, States v. Jobe, 101 F.3d 1046, 1058 (5th Cir. 1996)

(quoting United States v. Roberts, 913 F.2d 211, 216 (5th Cir.

1990)), cert. denied, 118 S. Ct. 81 (1997).

3 United States v. Freeman, 77 F.3d 812, 815 (5th Cir. 1996).

4 Smith v. Phillips, 455 U.S. 209, 215 (1982).

5 United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1991).

App. 6

should be dismissed, it was not necessary to voir dire the

remaining jurors because Almaraz had told no other

member of the jury about the incidents, and no other

juror had reported any such incident.®

The hearing conducted by the district court was ade-

quate to determine whether it was necessary to interview

the remaining jurors. Almaraz indicated that the two

incidents occurred the night before he reported them to

the court and that he had not told anyone else about what

had occurred. In light of these answers and in view of the |

potential disruptive effect of questioning all remaining

jurors,” the district court did not abuse its discretion in

the way it handled the allegations of outside influence on

the jury or in denying Cantu’s motion for a new trial.®

6 See United States v. Tarpley, 945 F.2d 806, 811 (5th Cir. 1991)

(“[I]t is not sufficient to trigger the requirement of further

investigation that a juror have had [sic] contact with an outside

source of information. Rather, the defendant must show that

extraneous prejudicial material had likely reached the jury.”)

(citation and quotation omitted).

7 See Ramos, 71 F.3d at 1153 (“In determining whether to |

conduct a hearing in a case such as this, the court must balance

the probable harm resulting from the emphasis such action

would place upon the misconduct and the disruption involved

in conducting a hearing against the likely extent and gravity of

the prejudice generated by the misconduct.”).

8 See id. at 1153-54; United States v. Posada-Rios, 158 F.3d 832, |

876-77 (Sth Cir. 1998).

eee

App. 7

B. Judicial Questioning

1. Standard of Review

Because Cantu did not object contemporaneously to

the instances of witness interrogation of which he now

complains, we review the district court’s questioning of

witnesses for plain error.? “Plain error occurs when the

error is so obvious and substantial that failure to notice

and correct it would affect the fairness, integrity, or pub-

lic reputation of judicial proceedings and would result in

manifest injustice.” 1°

2. Merits

That “[a] federal judge may comment on the evi-

dence, question witnesses, bring out facts not yet

adduced, and maintain the pace of the trial by interrupt-

ing or setting time limits on counsel” is settled beyond

peradventure.'! In so doing, however, a judge cannot

appear to be partial to the prosecution.'!2 When consider-

ing whether a court appeared impartial, we must review

9 United States v. Mizell, 88 F.3d 288, 297 (5th Cir.), cert.

denied, 117 S. Ct. 620 (1996).

10 [d.

11 United States v. Wallace, 32 F.3d 921, 928 (5th Cir. 1994);

see also Fed. R. Evid. 614(b) (“The court may interrogate

witnesses, whether called by itself or by a party.”).

12 United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998);

United States v. Wilson, 135 F.3d 291, 307 (4th Cir.), cert. denied,

118 S. Ct. 1852 (1998); Herman v. United States, 289 F.2d 362, 365

(5th Cir. 1961) (“The trial judge has a duty to conduct the trial

carefully, patiently, and impartially. He must be above even the

appearance of being partial to the prosecution.”).

App. 8

the entire record.!* Our task is to determine whether the

judge’s behavior was “so prejudicial that it denied the

defendant a fair, as opposed to a perfect, trial.”'4 “To rise

to the level of a constitutional error, the district judge’s

actions, viewed as a whole, must amount to an interven-

tion that could have led the jury to a predisposition of

guilt by, improperly confusing the functions of judge and

prosecutor.” ?5

Cantu asserts that reversal of his conviction is

required because the district court’s questioning “was

pervasive, often leading, and designed to rehabilitate the

credibility of government witnesses or undermine coun-

sel for Defendant’s questioning on cross-examination.”

Cantu rests his argument primarily on United States v.

Saenz,'© a case in which we held that the same district

court’s questioning of witnesses created an appearance

that the court was partial to the prosecution and thereby

denied the defendant a fair trial.!7

In reaching our holding in Saenz, we emphasized that

such a result obtained only because of the “unusual com-

bination of circumstances” the case presented.'* Most

importantly, the government's case in Saenz rested almost

entirely on the testimony of a codefendant who was

13 United States v. Carpenter, 776 F.2d 1291, 1294 (5th Cir.

1985).

14 United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994);

see also United States v. Davis, 752 F.2d 963, 974 (5th Cir. 1985).

15 Bermea, 30 F.3d at 1569; see also Davis, 752 F.2d at 974.

16 134 F.3d 697 (5th Cir. 1998).

17 jd. at 704-13.

18 Id. at 699.

App. 9

cooperating with the prosecution.!9 As a result, the out-

come of the case hinged on whether the jury believed the

testimony of the government’s witness or that of the

defendant, who - unlike Cantu - testified in his own

defense. In light of the crucial nature of the testimony of

these two witnesses and the scant evidence supporting

conviction (other than the cooperating witness’ testi-

mony), we held that the district court’s substantial ques-

tioning of both key witnesses in a manner that could have

appeared to convey partiality toward the prosecution

required that we reverse the defendant's conviction and

remand the case for a new trial.?°

The present case is distinguishable from Saenz in

several key respects. First, rather than resting on the

testimony of a single witness, the government’s case

against Cantu featured numerous substantive witnesses,

including both coconspirators and law enforcement offi-

cials. Second, Cantu did not testify in his own defense, so

the district court had no opportunity to question - let

alone, improperly question - him.?! Third, the district

court’s questioning of witnesses was not nearly as exten-

sive as that in Saenz.22 In sum, although the district

19 Id. at 702.

20 Id. at 712-13.

21 See id. at 709 (“This Court is particularly sensitive to a

trial judge’s questioning of the defendant, because [w]hen a

defendant takes the stand in his own behalf, any unnecessary

comments by the court are too likely to have a detrimental effect

on the jury’s ability to decide the case impartially.”) (citation

and quotation omitted).

22 In Saenz, the district court’s questioning of the

government's cooperating witness consisted of over 18 percent

App. 10

court’s questioning in the present case may bear some

similarity to that in Saenz, the unique combination of

factors that led to a reversal in Saenz is absent here. We

thus conclude that the district court’s examination of

witnesses did not constitute plain error.

C. Hearsay

1. Standard of Review

We review a district court’s evidentiary rulings for

abuse of discretion.2 Should we determine, however, that

the district court erred in admitting hearsay evidence, we

must determine additionally whether the admission of

the testimony was harmless.?4

2. Merits

Cantu argues that on four occasions the district court

erred in admitting hearsay evidence and that, when

viewed cumulatively, the admission of this evidence was

not harmless. Cantu first complains that the district court

improperly admitted a government exhibit consisting of

certified copies of public records from Hidalgo County,

Texas, including court minutes reflecting a guilty plea by

of his testimony - 264 out of the 1460 lines of transcript. Id. at

704 n. 3. The court’s questioning of the defendant during direct

examination made up 23.5 percent of the direct examination

(253 out of 1075 lines). The court did not significantly interrupt

the cross-examination or redirect of the defendant. Id. at 712 n.

7. In the present case, the district court’s questioning of

witnesses did not approach this level of intrusiveness.

23 United States v. Clements, 73 F.3d 1330, 1334 (5th Cir.

1996).

24 United States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996).

App. 11

one Javier Lopez Cantu in a misdemeanor marijuana case.

As a preliminary matter, Cantu did not object to the

admission of the government exhibit on hearsay grounds.

Rather, he objected only that the records were irrelevant

because the government had failed to prove that the

person identified in the records was the defendant, a

separate contention from the one that Cantu raises on

appeal.

Again, when a party fails to object to the admission

of evidence, we review the district court’s ruling only for

plain error.25 The district court’s admission of the govern-

ment exhibit in question did not constitute plain error -

indeed, it did not constitute error of any sort. First, the

certified court records are public records, thereby falling

within the public records exception to the hearsay rule.?¢

Moreover, to the extent that Cantu is arguing that the

admissibility of the records was dependent on the fulfill-

ment of a condition of fact - i.e., that Cantu was the

person identified in the records - the district court only

needed to determine whether the jury could reasonably

find that the records referred to this Javier Lopez Cantu.?7

Not only do the documents refer to Cantu by his full

25 Fed. R. Evid. 103(d); Peaches Entertainment Corp. v.

Entertainment Repertoire Assocs., Inc., 62 F.3d 690, 694 (Sth Cir.

1995); see supra text accompanying note 10.

26 See Fed. R. Evid. 803(8); United States v. Vidaure, 861 F.2d

1337, 1340-41 (5th Cir. 1988) (holding certified and exemplified

copies of defendant’s convictions and copies of documents

contained in his “pen packet” obtained from the Texas

Department of Corrections were properly admitted in evidence

under hearsay exception for public records and reports).

27 Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

App. 12

name, they reflect that Cantu was represented by Ed

Cyganiez, an attorney who testified at trial that he repre-

sented Cantu in the present case and was hired by Cantu

to represent his brother, Roy Cantu, on two other occa-

sions. In light of this evidence, the district court did not

err in finding that condition of fact was sufficiently estab-

lished to admit the evidence.

Cantu next contends that the district court erred

when it allowed his sister-in-law, Graciela Cantu, to tes-

tify that Cavazos worked for Cantu. Cantu’s assertion is

baseless. When defense counsel objected to Graciela

Cantu’s testimony at trial, the district court instructed the

prosecutor to establish whether the witness had personal

knowledge of Cavazos’s relationship to Cantu.?® Graciela

Cantu then testified that she believed that Cantu was

Cavazos’s boss because she had personally observed

Cantu giving Cavazos orders while they were unloading

and storing marijuana in her house. That her testimony

consisted of a conclusion about the relationship between

Cantu and Cavazos, rather than a simple description of a

concrete fact, does not render it inadmissible hearsay.

“Personal knowledge can include inferences and

opinions, so long as they are grounded in personal

28 See Fed. R. Evid. 602 (“A witness may not testify to a

matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the

matter.”); Davis, 792 F.2d at 1303-04 (holding officer’s testimony

that he personally knew when guns were released by police

department was sufficient to establish testimony not hearsay

given officer’s “personal connection to subject matter”).

App. 13

observation and experience.”2? The district court did not

err in permitting Graciela Cantu to testify that Cavazos

worked for Cantu, given that her testimony was

grounded in her personal observations of the interaction

of these two men.”

Cantu also challenges the district court’s admission

of testimony by a Cantu employee, Alfonso Zaleta,

describing a conversation among himself, Sergio Gomez,

and Rafael Ornelas - the last two of whom are Mexican

nationals - in which Gomez and Ornelas identified Cantu

as a drug trafficker. According to Zaleta’s testimony,

Gomez and Ornelas demanded that Cantu pay, and Cantu

agreed to pay, a $50,000 “tariff” to move marijuana

through Matamoros. Zaleta’s testimony thus established

that there was a conspiracy among Cantu, Gomez, and

Ornelas to move marijuana through Mexico into the

United States and that Gomez’s and Ornelas’s statements

regarding Cantu were in furtherance of that conspiracy —

that is, to ensure that they were paid for sheparding

Cantu’s drugs through Matamoros. As coconspirator

statements made in furtherance of a conspiracy are

29 United States v. Neal, 36 F.3d 1190, 1206 (1st Cir. 1994)

(citation and quotation omitted), cert. denied, 117 S. Ct. 519

(1996).

30 See Lubbock Feed Lots, Inc. v. lowa Beef Processors, Inc., 630

F.2d 250, 262-63 (5th Cir. 1980) (holding witness’ testimony that

he understood individual bought cattle for defendant based on

fact that individual spoke to one of defendant’s employees four

or five times a day was sufficiently grounded in witness’

personal knowledge).

App. 14

admissible, the district court did not err in permitting

Zaleta’s testimony.*!

Last, Cantu asserts that the district court erred in

allowing Special Agent John Wood to testify, over Cantu’s

hearsay objection, that - based on statements made by

Cavazos and Antonio Sepulveda, another of Cantu’s

employees — Wood believed that Cantu was aware that he

was under investigation. The implication of Wood’s testi-

mony was that Cantu’s awareness of the investigation

explained why the police did not find significant quan-

tities of drugs or drug ledgers when they searched

Cantu’s residence.

The government does not contest that Agent Wood

based his testimony, at least in part, on information other

than his own personal knowledge.*? Neither does the

government argue that Wood’s testimony was offered for

a purpose other than to establish the truth of the matter

asserted, i.e., as background information to explain the

actions of the investigators. Rather, it contends that

Agent Wood was an expert either in the investigation of

Cantu’s case or the search of Cantu’s residence, and was

thus permitted to testify regarding that search based on

31 See United States v. Flores, 63 F.3d 1342, 1377 (5th Cir.

1995).

32 Although the government affixes the qualifier “in part”

to its admission that Agent Wood based his testimony on

hearsay, Wood did not so hedge his testimony, stating: “I believe

[Cantu] did [know that he was under investigation], based on

statements given by other people.”

33 See United States v. Carrillo, 20 F.3d 617, 619-20 (5th Cir.

1994).

App. 15

any information that he discovered during the investiga-

tion. Significantly, the government neither requested that

the district court qualify Wood as an expert nor laid any

foundation for treating him as such.

Were we to approbate the government's theory, then

any time that law enforcement officials have more than a

tangential relationship to an investigation of a defendant,

they would be permitted to testify to any conclusion they

have reached, even when such a conclusion is based on

the out-of-court statements of persons not before the

court.*4 Although it is clear that there can be circum-

stances under which a law enforcement official can testify

as an expert in a criminal case,*>5 permitting an official to

testify regarding a matter that requires no specialized

knowledge** without requiring the government to lay

34 See Fed. R. Evid. 706 (“The facts or data in the particular

case upon which an expert bases an opinion or inference may be

those perceived by or made known to the expert at or before the

hearing. If of a type reasonably relied upon by experts in the

particular field in forming opinions or inferences upon the

subject, the facts or data need not be admissible in evidence.”).

35 See, e.g., United States v. Gresham, 118 F.3d 258, 266 (5th

Cir. 1997) (ATF agent testified as expert that, based on, inter alia,

discussions with manufacturers, corporate literature, and

reference materials, components of firearm had been

manufactured outside Texas and traveled through interstate

commerce, thus establishing interstate commerce nexus

required for conviction under 18 U.S.C. § 922(g)), cert. denied,

118 S. Ct. 702 (1998).

36 Wood testified only that, based on “statements [he] was

given by other people,” Wood believed that Cantu knew he was

under investigation. The agent did not testify that he believed

that the search of Cantu’s premises revealed no drug

paraphernalia because Cantu was aware of the investigation —

App. 16

any foundation regarding the witness’ expertise in the

subject matter, based on the simple fact that the official

was involved in the investigation of the defendant, would

raise serious concerns.*” As we conclude, however, that,

even assuming that Agent Wood’s testimony constituted

impermissible hearsay and opinions, the admission of his

testimony was harmless, we need not determine whether

the district court erred in admitting the testimony.

testimony which, at a minimum, would have arguably relied in

part on Wood’s experience as an investigator; rather such a

conclusion was simply a possible implication of his testimony. It

requires no specialized knowledge —- unless one characterizes

knowledge obtained through hearsay statements as specialized

- to testify that a person was aware that he was under

investigation.

37 See United States v. Johnston, 127 F.3d 380, 393-96 (5th Cir.

1997) (holding prosecutor’s questioning of law enforcement

officials designed to introduce indirectly hearsay testimony of

informants and other law enforcement officials constituted

“serious prosecutorial misconduct”), cert. denied sub nom. United

States v. Lowery, 118 S. Ct. 1174 (1998); Gochicoa v. Johnson, 118

F.3d 440, 445-46 (5th Cir. 1996) (holding law enforcement

official’s testimony based on informant’s out-of-court statement

improperly circumvented hearsay prohibition), cert. denied, 118

S. Ct. 1063 (1998); Fed. R. Evid. 803(8)(B) (excluding from

“public records” exception to hearsay rule “matters observed by

police officers and other law enforcement personnel” in

criminal cases); Fed. R. Evid. 803(8) advisory committee’s note

(“In one respect, however, the rule with respect to evaluative

reports under item (c) is very specific: they are admissible only

in civil cases and against the government in criminal cases in

view of the almost certain collision with confrontation rights which

would result from their use against the accused in a criminal case.”)

(emphasis added).

App. 17

To ascertain whether the admission of the inadmiss-

ible evidence was harmless, we must decide, in light of

all of the evidence, whether that evidence actually con-

tributed to the jury’s verdict.** Here, multiple witnesses -

coconspirators, law enforcement agents, and third parties

— offered testimony concerning Cantu’s direction of, and

relationship to, the marijuana distribution ring. Given all

this evidence, we are satisfied that Agent Wood’s conjec-

tural testimony regarding the absence of narcotics evi-

dence at Cantu’s residence when it was searched by the

police had little, if any, effect on the jury’s verdict.

Accordingly, the admission of the testimony was harm-

less error if it was error at all.99

D. Forfeiture Issue

1. Standard of Review

We review for abuse of discretion a district court’s

decision to permit an eleven-member jury to return a

verdict after the district court has dismissed the twelfth

juror for just cause.*

2. Merits

Cantu contends, without citation, that the district

court violated Federal Rule of Criminal Procedure 23

when it permitted the jury - consisting as it did of only

38 Dickey, 102 F.3d at 163.

» See id.

40 Fed. R. Crim. P. 23(b); United Siates v. O'Brien, 989 F.2d

983, 986 (5th Cir. 1990).

App. 18

eleven members following the dismissal of Juror Almaraz

-— to consider the issue of forfeiture. Rule 23(b) states that

juries “shall be of twelve,” unless the parties “stipulate in

writing with the approval of the court that the jury shall

consist of any number less than twelve.”4! The rule fur-

ther provides, however, that “[e]ven absent such stipula-

tion, if the court finds it necessary to excuse a juror for

just cause after the jury has retired to consider its verdict,

in the discretion of the court a valid verdict may be

returned by the remaining 11 jurors.”42 Cantu asserts that

the forfeiture proceedings constituted a “wholly separate

trial” from the guilt-innocence stage of the proceedings,

and that, because he did not consent to going forward

with only eleven jurors, the district court abused its dis-

cretion. As Cantu mischaracterizes the nature of the for-

feiture proceeding in this case, his assertion is without

merit.

Federal Rule of Criminal Procedure 31(e) provides:

“If the indictment or the information alleges that an

interest or property is subject to criminal forfeiture, a

special verdict shall be returned to the extent of the

interest or property subject to forfeiture, if any.”4 The

Supreme Court has held that “the right to a jury verdict

on forfeitability does not fall with the Sixth Amendment’s

constitutional protection,”** so the question whether the

district court erred in proceeding with eleven jurors is

41 Fed. R. Crim. P. 23(b).

42 Id.

43 Fed. R. Crim. P. 31(e).

44 Libretti v. United States, 516 U.S. 29, 48 (1995).

App. 19

simply a matter of statutory construction, not one of

constitutional proportions.

Cantu cites no authority in support of his assertion

that, because Juror Almaraz was excused, Cantu was

entitled to a separate trial before a different jury on the

forfeiture issue. As our discussion in United States v.

Cauble*> indicates, Rule 31(e) does not require that the

forfeiture issue be decided by a separate jury. In address-

ing the preferred procedure when a special forfeiture

verdict is necessary, we stated:

To ease the jurors’ task in determining guilt or

innocence, the forfeiture issue should be with-

held from them until after they have returned a

general verdict. . . . Such a bifurcated trial -

using, of course, only one jury — is not only conve-

nient for the judge and fairer to the defendant. It

also prevents the potential penalty of forfeiture

from influencing the jurors’ deliberations about

guilt or innocence.*

Inasmuch as Rule 31(e) does not require that the

forfeiture allegations be heard by a separate jury, it fol-

lows that the authority to proceed with eleven jurors

under Rule 23(b) applies not only to the guilt-innocence

phase of Cantu’s trial, but also to the special verdict

portion of the proceeding. In other words, Rule 31(e)

applies to the single trial of which there are two parts -

guilt-innocence and forfeiture.47 Cantu has not chal-

lenged on appeal the district court’s decision to proceed

45 United States v. Cauble, 706 F.2d 1322, 1347 (5th Cir. 1983).

46 Id. at 1348 (emphasis added).

47 Our decision in United States v. Webster, 162 F.3d 308 (5th

Cir. 1998) is not to the contrary. In Webster, we addressed a

App. 20

to the guilt-innocence verdict with only eleven jurors,

and we perceive no error in the district court’s permitting

that same truncated jury to reach the special verdict on

the forfeiture issue as well.

II]

CONCLUSION

For the foregoing reasons, the conviction of Javier

Lopez Cantu and the judgment of forfeiture are

AFFIRMED.

district court’s authority to replace with an alternate a juror who

had been dismissed for cause after the return of the guilt-

innocence verdicts and during the separate punishment

proceeding. We held that the district court did not have the

authority to do so because Fed. R. of Crim. P. 24(c) required the

court to dismiss all alternate jurors once the jury “retire[d] to

consider” the guilt-innocence verdicts. Id. at 347. The present

case is distinguishable on two important grounds. First, it

concerns the district court’s authority under Fed. R. of Crim. P.

23(b) to permit the jury to proceed to a verdict with only eleven

jurors, rather than its authority to replace a juror with an

alternate. Second, it involves only a brief proceeding to reach a

special verdict regarding forfeiture consisting of just one

witness, rather than a truly separate trial to determine the

defendant’s punishment featuring new witnesses and new

evidence.

App. 21

APPENDIX B

United States District Court

Southern District of Texas

UNITED STATES JUDGMENT IN A

OF AMERICA CRIMINAL CASE

V. (Filed Aug. 1, 1997)

JAVIER LOPEZ CANTU _ (For Offenses Committed

On or After November 1,

1987)

Case Number:

1:97CR00020-001

Charles Lewis

Defendant’s Attorney

THE DEFENDANT:

[ ] pleaded guilty to count(s)

[ ] pleaded nolo contendere to count(s)

which was accepted by the court.

[X] was found guilty on count(s) 1 and 9 on 04/26/97

after a plea of not guilty.

Date

Title & Nature of Offense Count

Section Offense Concluded Number(s)

21 U.S.C. Conspiracy to pos- 01/29/1997 1

846 sess, w/intent to

distribute, a quan-

tity exceeding 1000

kilograms of mari-

juana.

18 U.S.C. Conspiracy to 01/29/1997 9

1956(h) launder money

instruments.

App. 22

The defendant is sentenced as provided in pages 2

through 6 __ of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

[X] The defendant has been found not guilty on count(s)

2, 3, 7 and 8

[ ] Count(s) (is)(are) dismissed on the

motion of the United States.

IT IS FURTHER ORDERED that the defendant shall

notify the United States Attorney for this district within

30 days of any change of name, residence, or mailing

address until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

Defendant's Soc. Sec. No.:

461-29-6681

Defendant’s Date of Birth:

01/17/1967

Defendant’s USM No.:

74613-079

Defendant’s Residence

Address:

2001 East Jackson Street

Brownsville TX 78520

Defendant's Mailing

Address:

2001 East Jackson Street

Brownsville TX 78520

07/16/1997

Date of Imposition of

Judgment

/s/ Filemon B. Vela

Signature of Judicial

Officer

Honorable Filemon B.

Vela

United States District

Judge

Name & Title of Judicial

Officer

8/1/97

Date

App. 23

IMPRISONMENT

The defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned for

a total term of 360 month(s)

This term consists of three hundred sixty (360) months on

Count 1. Twenty (20) years on Count 9 to be served

concurrently with Count 1 for an aggregate sentence of

three hundred sixty (360) months.

[ ] The court makes the following recommendations to

the Bureau of Prisons:

[X] The defendant is remanded to the custody of the

United States Marshal.

[ ] The defendant shall surrender to the United States

Marshal for this district:

{ ] at a.m./p.m. on ;

[ ] as notified by the United States Marshal.

{[ ] The defendant shall surrender for service of sen-

tence at the institution designated by the Bureau of

Prisons.

] before 2 p.m. on

] as notified by the United States Marshal.

] as notified by the Probation or Pretrial Services

App. 24

RETURN

I have executed this judgment as follows:

Defendant delivered on to at

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

Deputy U.S. Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall

be on supervised release for a term of 5 year(s)

Five (5) years as to Count 1. Three (3) years as to Count 9

to run concurrently to Count 1 for an aggregate term of

five (5) years.

The defendant shall report to the probation office in

the district to which the defendant is released within 72

hours of release from the custody of the Bureau of

Prisons.

The defendant shall not commit another federal, state, or

local crime.

The defendant shall not illegally possess a controlled

substance.

App. 25

For offenses committed on or after September 13, 1994:

The defendant shall refrain from any unlaw-

ful use of a controlled substance. The defendant

shall submit to one drug test within 15 days of

release from imprisonment and at least two

periodic drug tests thereafter, as directed by the

probation officer.

[ ] The above drug testing condition is sus-

pended based on the court’s determination

that the defendant poses a low risk of

future substance abuse. (Check, if applica-

ble.)

[X] The defendant shall not possess a firearm as defined

in 18 U.S.C. § 921. (Check, if applicable.)

If this judgment imposes a fine or a restitu-

tion obligation, it shall be a condition of super-

vised release that the defendant pay any such

fine or restitution that remains unpaid at the

commencement of the term of supervised

release in accordance with the Schedule of Pay-

ments set forth in the Criminal Monetary Penal-

ties sheet of this judgment.

The defendant shall comply with the standard condi-

tions that have been adopted by this court (set forth

below). The defendant shall also comply with the addi-

tional conditions on the attached page (if indicated

below).

See Special Conditions of Supervision - Sheet 3.01

1)

2)

3)

4)

5)

6)

7)

8)

9)

10)

App. 26

STANDARD CONDITIONS OF SUPERVISION

the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

the defendant shall answer truthfully all inquiries

by the probation officer and follow the instructions

of the probation officer;

the defendant shall support his or her dependents

and meet other family responsibilities;

the defendant shall work regularly at a lawful occu-

pation unless excused by the probation officer for

schooling, training, or other acceptable reasons;

the defendant shall notify the probation officer ten

days prior to change in residence or employment;

the defendant shall refrain from excessive use of

alcohol;

the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distrib-

uted, or administered;

the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate

with any person convicted of a felony unless

granted permission to do so by the probation officer;

the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view of the probation officer;

SE Ye ENO

App. 27

11) the defendant shall notify the probation officer

within seventy-two hours of being arrested or ques-

tioned by a law enforcement officer;

12) the defendant shall not enter into any agreement to

act as an informer or a special agent of a law

enforcement agency without the permission of the

court;

13) as directed by the probation officer, the defendant

shall notify third parties of risks that may be occa-

sioned by the defendant's criminal record or per-

sonal history or characteristics, and shall permit the

probation officer to make such notifications and to

confirm the defendant’s compliance with such noti-

fication requirement.

14) if restitution has been ordered, the defendant shall

make restitution as ordered by the Court and in

accordance with the applicable provisions of Title 18

U.S.C. 2248, 2259, 2264, 2327, 3663, 3663A, and/or

3664. The defendant shall also pay the assessment

imposed in accordance with Title 18 U.S.C. 3013;

15) the defendant shall notify the U. S. Probation Office

of any material change in the defendant’s economic

circumstances that might affect the defendant’s abil-

ity to pay restitution, fines, or special assessments.

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a program, inpatient or

outpatient, for the treatment of drug and/or alcohol

addiction, dependency or abuse which may include, but

not be limited to urine, breath, saliva and skin testing to

determine whether the defendant has reverted to the use

of drugs and/or alcohol. Further, the defendant shall

participate as instructed and as deemed necessary by the

22 eEEEEEaEeEe=EeEeEeEeEeEeEee

App. 28

probation officer and shall comply with all rules and

regulations of the treatment agency until discharged by

the Program Director with the approval of the probation

officer. The defendant shall further submit to drug-detec-

tion techniques, in addition to those performed by the

‘treatment agency, as directed by the probation officer.

The defendant will incur costs associated with such

drug/alcohol detection and treatment, based on ability to

pay as determined by the probation officer.

The defendant is hereby placed on notice that the court is

quite concerned there has been an alarming increase of

Driving While Intoxicated and illicit drug violations by

persons sentenced by this court to probation or super-

vised release. Such violations are criminal offenses which

would cause mandatory revocation of Probation/Super-

vised Release and subject to consequences thereof.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal

monetary penalties in accordance with the schedule of

payments set forth on Sheet 5, Part B.

Assessment Fine Restitution

Totals: $ 200.00 $ 20,000.00 $

[ ] If applicable, restitution amount

ordered pursuant to plea agree-

App. 29

FINE

The above fine includes costs of incarceration and/or

supervision in the amount of $ 0.00.

The defendant shall pay interest on any fine of more

than $2,500, unless the fine is paid in full before the

fifteenth day after the date of judgment, pursuant to 18

U.S.C. § 3612(f). All of the payment options on Sheet 5,

Part B may be subject to penalties for default and delin-

quency pursuant to 18 U.S.C. § 3612(g).

[X] The court determined that the defendant does not

have the ability to pay interest and it is ordered that:

{X] The interest requirement is waived.

[ ] The interest requirement is modified as fol-

lows:

RESTITUTION

{[ ] The determination of restitution is deferred in a case

brought under Chapters 109A, 110, 110A and 113A

of Title 18 for offenses committed on or after

09/13/1994, until . An Amended Judgment

in a Criminal Case will be entered after such deter-

mination.

{ ] The defendant shall make restitution to the follow-

ing payees in the amounts listed below.

If the defendant makes a partial payment, each payee

shall receive an approximately proportional payment

unless specified otherwise in the priority order or per-

centage payment column below.

App. 30

Priority

Order

** Total Amount of or

Name of Amount of _ Restitution Percentage

Payee Loss Ordered of Payment

Totals: $ $

** Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title 18 for

offenses committed on or after September 13, 1994.

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1)

assessment; (2) restitution; (3) fine principal; (4) cost of

prosecution; (5) interest; (6) penalties.

Payment of the total fine and other criminal mone-

tary penalties shall be due as follows:

A [X]_ in full immediately; or

B [] $ immediately, balance due (in accor-

dance with C, D, or E); or

{ ] not later than ; or

D [ ] in installments to commence ___ day(s) after

the date of this judgment. In the event the entire

amount of criminal monetary penalties imposed

is not paid prior to the commencement of super-

vision, the U.S. probation officer shall pursue

collection of the amount due, and shall request

the court to establish a payment schedule if

appropriate; or

App. 31

E [ Jin (e.g. equal, weekly, monthly, quarterly)

installments of $ overaperiodof __ year(s)

to commence ___ day(s) after the date of this judg-

ment.

The National Fine Center will credit the defendant

for all payments previously made toward any criminal

monetary penalties imposed. Special instructions regard-

ing the payment of criminal monetary penalties:

{ ] The defendant shall pay the cost of prosecution.

{ ] The defendant shall forfeit the defendant’s interest

in the following property to the United States:

Unless the court has expressly ordered otherwise in

the special instructions above, if this judgment imposes a

period of imprisonment payment of criminal monetary

pegalties shall be due during the period of imprisonment.

All criminal monetary penalty payments are to be made

to the United States Courts National Fine Center, Admin-

istrative Office of the United States Courts, Washington,

DC 20544, except those payments made through the

Bureau of Prisons’ Inmate Financial Responsibility Pro-

gram. If the National Fine Center is not operating in this

district, all criminal monetary penalty payments are to be

made as directed by the court, the probation officer, or

the United States attorney.

STATEMENT OF REASONS

[X] The court adopts the factual findings and guideline

application in the presentence report.

OR

App. 32

{ ] The court adopts the factual findings and guideline

application in the presentence report except (see

attachment, if necessary):

Guideline Range Determined by the Court:

Total Offense Level: 42

Criminal History Category: I

Imprisonment Range: 360 to life months

Supervised Release Range: 3 to 5_ years

Fine Range: $ 25,000.00 to $ 4,500,000.00

{[ ] Fine waived or below the guideline range

because of inability to pay.

Total Amount of Restitution: $

[ ] Restitution is not ordered because the compli-

cation and prolongation of the sentencing

process resulting from the fashioning of a

restitution order outweighs the need to pro-

vide restitution to any victims, pursuant to 18

U.S.C. § 3663(d).

[ ] For offenses that require the total amount of

loss to be stated, pursuant to Chapters 109A,

110, 110A, and 113A of Title 18, restitution is

not ordered because the economic circum-

stances of the defendant do not allow for the

payment of any amount of a restitution order,

and do not allow for the payment of any or

some portion of a restitution order in the

foreseeable future under any reasonable

schedule of payments.

{ ] Partial restitution is ordered for the following

reason(s):

[X]

App. 33

The sentence is within the guideline range, that

range does not exceed 24 months, and the court

finds no reason to depart from the sentence called

for by the application of the guidelines.

OR

The sentence is within the guideline range, that

range exceeds 24 months, and the sentence is

imposed for the following reason(s):

The sentence addresses the severity of the offense

and provides just punishment for the offense.

OR

The sentence departs from the guideline range:

[ ] upon motion of the government, as a result of

defendant's substantial assistance.

[ ] for the following specific reason(s):

App. 34

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40930

UNITED STATES OF AMERICA

Plaintiff-Appellee

V.

JAVIER LOPEZ CANTU

Defendant-Appellant

Appeal from the United States District Court for the

Southern District of Texas, Brownsville

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Filed Mar. 2, 1999)

(Opinion 02/03/99, 5 Cir, _, __ F.3d __)

Before SMITH, DUHE, and WEINER, Circuit Judges

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no mem-

ber of this panel nor judge in regular active service on the

court having requested that the court be polled on

Rehearing En Banc, (Fev. R. App. P. and 5tTu Cir. R. 35) the

Suggestion for Rehearing En Banc is also DENIED.

() The Petition for Rehearing is DENIED and the court

having been polled at the request of one of the members

App. 35

of the court and a majority of the judges who are in

regular active service not having voted in favor, (Fev. R.

Apr. P. and 5rxu Cir. R. 35) the Suggestion for Rehearing

En Banc is also DENIED.

() A member of the court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ J. Wiener Jr.

United States Circuit

Judge