Petition for Writ of Certiorari — Herrera v. United States

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O21249FEB6 2003

NO. __gemune on 746-01.00K

IN THE

Supreme Court of the United States

ROBERT “ROBE” HERRERA,

Petitioner

VS.

UNITED STATES OF AMERICA,

Respondent

On Petition For Writ of Certiorari

To The United States Court of Appeals

For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Solace Kirkland Southwick*

*Counsel of Record

ANDREWS & KURTH L.L.P.

600 Travis Street, Suite 4200

Houston, Texas 77002

(713) 220-4200

Attorneys for Petitioner,

Robert “Robe” Herrera

oN ee ana ag Sas aI

QUESTION PRESENTED

Did the trial court err in accepting as race-neutral the

prosecution’s explanation for exercising its peremptory

challenge to an Hispanic juror when the explanation

was based on the juror’s accented English?

LIST OF PARTIES

The Petitioner, Robert “Robe” Herrera, also known as Rove

Herrera, Jr.;

The Respondent, United States of America;

The Co-defendants in the trial court and Appellants in the

court of appeals, Jesse “Chango” Gomez, Jr., also known as

Changito Gomez; Pete Carrion; Remigio “Tito” Gomez;

Juan “Jon Jon” Johns; Martin “Pancake” Ortegon; Robert

“Beaver” Perez; Victor “Tito” Pena; Michael Perez; Louis

“Big Lou” Morales.

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TABLE OF CONTENTS

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REASONS FOR GRANTING THE PETITION .................. 4

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B. The Trial Court’s Determination that the

Prosecution’s Explanation Was Race-Neutral Was

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1. The prosecution did not offer a race-neutral

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APPENDIX

A. Unpublished Opinion of the United States Court of

Appeals for the Fifth Circuit, No. 99-50279; United

States of America v. Jesse “Chango” Gomez, Jr., also

known as Changito Gomez; Pete Carrion; Remigio

“Tito” Gomez; Robert “Robe” Herrera, also known as

Rove Herrera, Jr.; Juan “Jon Jon” Johns; Martin

“Pancake” Ortegon; Robert “Beaver” Perez; Victor

“Tito” Pena; Michael Perez; Louis “Big Lou” Morales

(On Appeal from the United States District Court for

the Western District of Texas (SA-98-CR-265-6))

B. Order Denying Rehearing

C. Verdict in Cause No. SA-98-CR-265-6

D. Portion of Transcript Concerning Mr. De La O and

Batson Cinallenge

E. The Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution

TABLE OF AUTHORITIES

CASES

Batson v. Kentucky,

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Hernandez v. New York,

FeO Gai BAe ANTE teereinvinriennntieinl 4, 5, 6,7, 8,9, 14

People v. Garcia,

620 N.Y.S.2d 237 (Supreme Court, Bronx County,

POR Fe Ge biicctcnsideviitinievtiietivitkiantiendanane 9

People v. Morales,

719 N.E.2d 261 (Ill. Ct. App. 1999)... eseeeeees 8,12, 13

Purkett v. Elem,

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State v. Gonzalez,

Oe FA re I, Bri tintttcsitetsimiininiiia 9

U.S. v. Alcantar,

BE ee Cs Be ants tccsncascncessocchneustcactenssetebininss 8

United States v. Munoz,

BD ce re Cre le: BN canccinncccicsatecsseveterebaatinens 5, 10, 12

United States v. Webster,

Re Fre Se Ce ee Fee tinchanecststncitnnestieeaaniel 6

STATUTES

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OPINIONS BELOW

The opinion of the court of appeals is unpublished.

(App. A.) The district court did not issue an opinion on the

verdict. (App. B.)

JURISDICTION

The court of appeals entered its judgment on September

16, 2002. (App. A.) The court denied timely-filed motions

for rehearing on November 8, 2002. (App. B.) The

jurisdiction of this Court is invoked under 28 U/S.C.

§ 1254(1) (1993).

CONSTITUTIONAL PROVISIONS INVOLVED

Section One of the Fourteenth Amendment to the United

States Constitution provides:

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

This case is an appeal from a criminal conviction of two

counts of racketeering. Robert Herrera was sentenced to two

concurrent life terms, followed by two concurrent five-year

terms of supervised release. The conviction was

unconstitutionally obtained because the court permitted the

prosecutor to use impermissibly discriminatory jury strikes,

despite the defendant’s Batson challenge to those strikes.

The district court exercised jurisdiction under 18 U.S.C.

§ 3231 as this case was a prosecution of alleged offenses

against the laws of the United States. The United States

Court of Appeals heard the case as a direct appeal from a

final decision of the United States District Court for the

Western District of Texas, exercising jurisdiction pursuant to

28 U.S.C. § 1291.

STATEMENT OF FACTS

A two-count superseding indictment, returned in the San

Antonio Division of the Western District of Texas on

November 19, 1998 charged Herrera and 15 others with

racketeering and conspiracy to conduct racketeering.

Specifically, the defendants were charged with membership

in an alleged criminal organization called the “Mexican

Mafia” that was centered primarily in San Antonio, Texas.

According to the indictment, the Mexican Mafia engaged in

extortion, retaliation, robbery, assault, narcotics trafficking,

and murder. The indictment charged specific acts in

furtherance of a criminal enterprise and overt acts in

furtherance of a conspiracy to engage in a criminal

enterprise.

The indictment alleged that Herrera was a “captain” in

the Mexican Mafia. As a “captain” Herrera allegedly

answered to Robert Perez, who was alleged to be the

“General” responsible for the San Antonio area. Herrera was

implicated in fewer than half of the acts alleged to underlie

the racketeering indictment and fewer than a third of the

overt acts in furtherance of the conspiracy indictment.

At the end of voir dire, the government exercised eight

of its eleven peremptory strikes on Hispanic veniremembers.

(App. D.) Those members were Saldana, Villasenor,

Sanchez, Graf, De La O, Lara, Castillo and Flores. Jd. The

defendants challenged the prosecution’s use of peremptory

strikes as discriminatory and in violation of the holding in

Batson v. Kentucky, 476 U.S. 79 (1986).

During the discussion that followed, the court first

recognized that the eight venirepersons in question were

Hispanic. (App. D.) Although defense counsel repeatedly

attempted to obtain the prosecution’s notes of voir dire to

test the reasons given for the strikes, the trial court denied

the motion. Jd. The prosecution offered its explanations for

the strikes of the seven veniremembers who were not double

strikes: Mr. Graf owned a bar; Mr. Flores worked as a

psychologist with children; Mr. De La O had a very strong

accent; Ms. Saldana’s son was accused of a crime;

Ms. Villasenor was divorced; Mr. Lara recognized that at the

beginning of the trial there were only allegations; and

Mr. Castillo thought that the police had fudged a report. Id.

The trial court, nevertheless, overruled the Batson challenge,

evidently persuaded by the prosecution’s attempt to explain

the strikes. The twelve-member jury that convicted Herrera

was composed of eight white members and four Hispanics.

Trial commenced on January 11, 1999 and continued

until March 3, 1999. At the conclusion of the trial, Herrera

and the other eight remaining defendants were found guilty

on counts one and two of the Indictment. (App. C.). Herrera

received two concurrent life sentences followed by two

concurrent five-year terms of supervised release. Herrera

timely appealed his conviction to the United States Court of

Appeals for the Fifth Circuit, which affirmed in an

unpublished opinion.

REASONS FOR GRANTING THE PETITION

In Hernandez v. New York, 500 U.S. 352, 372, 114

L.Ed.2d 495, 111 S.Ct. 1859 (1991), this honorable Court

stated:

Just as shared language can serve to foster

community, language differences can be a source of

division. Language elicits a response from others,

ranging from admiration and respect, to distance

and alienation, to ridicule and scorn. Reactions of

the latter type all too often result from or initiate

racial hostility. In holding that a race-neutral reason

for a peremptory challenge means a reason other

than race, we do not resolve the more difficult

question of the breadth with which the concept of

race should be defined for equal protection

purposes. We would face quite a different case if

the prosecutor had justified his peremptory

challenges with the explanation that he did not want

Spanish speaking jurors. It may well be, for certain

ethnic groups in some communities, that

proficiency in a particular language, like skin color,

should be treated as a surrogate for race under the

equal protection analysis. . . . And, as we make

clear, a policy of striking all who speak a given

language, without regard to the particular

circumstances of the trial or the individual

responses of the jurors, may be found by the trial

judge to be a pretext for racial discrimination. But

this case is not before us.

As indicated by the words cited above, this Court has

recognized the equal protection threat posed by a prosecutor

who exercises peremptory challenges based on a juror’s

ability to speak a particular language, in that such a

challenge could in fact be race-based. And while, in the

Court’s opinion, the facts in Hernandez did not warrant a

finding that the peremptory challenges used by the

prosecutor were exercised in a manner that violated Batson

v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712

(1986), the facts presented in this case warrant such a

finding. The hypothetical case referenced in Hernandez is

now before the Court, as the trial court in this case

committed clear error by accepting the prosecutor’s

pretextual explanation for striking a Hispanic juror based

predominantly on his strong accent.

ARGUMENT

ISSUE ONE. The trial court’s acceptance of the

prosecution’s pretextual excuses for striking Hispanic jurors

violated Herrera’s constitutional rights.

A. The Trial Court’s Decision Is Reviewed for Clear

Error.

Striking a juror on the basis of race, including Hispanic

ethnicity, violates Batson v. Kentucky, 476 U.S. 79 (1986).

See United States v. Munoz, 15 F.3d 395, 399 (Sth Cir. 1994)

(citing Hernandez v. New York, 500 U.S. 352 (1991)). If the

prosecutor articulates a race-neutral explanation for the

challenged strike, the district court’s decision to credit the

explanation is reviewed for clear error. Munoz, 15 F.3d at

399.

B. The Trial Court’s Determination that the

Prosecution’s Explanation Was Race-Neutral Was

Clearly Erroneous.

Batson generally requires a three-step process: 1) the

opponent of the peremptory challenge must make out a

prima facie case of racial discrimination; 2) the proponent of

the challenge comes forward with a race-neutral explanation

of the challenged strike; and 3) the trial court must determine

whether the opponent of the strike has proved purposeful

racial discrimination. Purkett v. Elem, 514 U.S. 765, 767

(1995). In the instant case, parts 2 and 3 of the process

involved error.’ First, the prosecution failed to provide a

race-neutral explanation for at least one of the strikes.

Second, the trial court committed clear error in crediting the

explanation given as to that strike.

1. The prosecution did not offer a race-neutral

explanation for striking Mr. De La O.

All of the defendants tried in this case were Hispanic.

(App. D.) Of the prosecution’s given eleven peremptory

strikes, eight were used to strike Hispanic jurors. A timely

Batson challenge was made, and the district court asked the

prosecutor for an explanation. One of those explanations

was not race-neutral. Specifically, when the court asked the

prosecution why he had struck Mr. De La O, the following

exchange occurred:

MR BAUMANN [for the United States

Government]: Your Honor, the Government

believed that Mr. De La O had a very, very strong

accent, and might have a difficult time

' “Once a prosecutor has offered a race-neutral explanation for

the peremptory challenges and the trial court has ruled on the ultimate

question of intentional discrimination, the preliminary issue of whether

the defendant has made a prima facie showing becomes moot.”

Hernandez v. New York, 500 U.S. 352, 359 (1991); a trial judge’s request

for an explanation of peremptory strikes moots on appeal the question of

whether a prima facie case of discrimination was established. United

States v. Webster, 162 F.3d 308, 349 (Sth Cir. 1999).

understanding and communicating with other jurors

on the panel. The fact that he was single, the nature

of his employment, we believe also contributed to

our decision.

THE COURT: The nature of his employment as a

teacher?

MR. BAUMANN: Special ed teacher, Your Honor.

Might make him an inappropriate choice in this

particular case, considering the nature of the

evidence in the case.

MR. MCCARTHY [for Jesse Gomez]: Your Honor

MR. BAUMANN: We were predominantly

concermed with his very strong accent and difficulty

communicating.

(App. D, emphasis added.) Mr. Baumann did not offer a

race-neutral explanation for his _ strike. Instead,

Mr. Baumann relied primarily on the “very very strong”

accent of the veniremember, emphasizing that his

predominant concern was the accent. The prosecution’s

objection to Mr. De La O’s accent was nothing more than a

pretext for an objection to his ethnicity.

In Hernandez v. New York, 500 U.S. 352, 363 (1991),

this Court recognized the danger that an excuse based on a

juror’s ability to speak a particular language could be in fact

race-based. The Court found that especially in a community

in which a significant percentage of the Latino population

speaks fluent Spanish, the ability to speak Spanish can be-

viewed as a proxy for race. In such circumstances, the Court

found that language ability cannot by itself form a race-

neutral basis for striking a juror. Jd. The Court found that “a

policy of striking all who speak a given language, without

regard to the particular circumstances of the trial . . . may be

found by the trial judge to be a pretext for racial

discrimination.” Jd. at 371-72. |

In this case, the explanation for the strike was not the

prospective juror’s ability to speak Spanish, but his accent.

The prosecution purported to be concerned with his ability to

understand other jurors and to communicate. But, there was

no question that Mr. De La O spoke English. According to

the reasoning in Hernandez discussed above, the

prosecutor’s purported concern with his ability to

coinmunicate was not a race-neutral explanation for the

strike. Instead, the explanation clearly revealed the

prosecutor’s discriminatory intent. See Purkett, 514 US. at

768 (“(ujnless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed

race neutral.”) The faulty logic employed by the prosecutor

further reveals the prosecutor’s discriminatory intent and

establishes that the challenge allegedly based on Mr. De La

O’s accent was a pretext for a race-based challenge. The

prosecutor, in explaining his reasons for challenging Mr. De

La O, makes the illogical argument that Mr. De La O would

have a difficult time understanding and communicating

because of his very strong accent. See U.S. v. Alcantar, 897

F.2d 436, 439 (9th Cir. 1990) (noting “the logical flaw in the

argument that because a person has a foreign accent that

makes it difficult to understand them that it follows that they

have trouble understanding English’); People v. Morales,

719 N.E.2d 261, 271 (ill. Ct. App. 1999) (stating that “it is

unclear how a venireperson’s accent is related to his or her

ability to understand trial testimony”).

Furthermore, if the prosecutor’s allegation that Mr. De

La O’s very strong accent would have rendered him unable

to communicate and understand, the prosecutor should have

—————————————a

more appropriately raised this allegation to support a

challenge for cause against Mr. De La O. See Hernandez v.

New York, 500 U.S. 352, 379 (1991) (Stevens, J. dissenting)

(stating that if the prosecutor’s concern was valid, it should

have been raised in a challenge for cause rather than a

peremptory challenge). But the prosecutor never raised his

concerns regarding Mr. De La O’s accent and never asserted

that Mr. De La O’s accent would have adversely affected his

ability to communicate and understand when for cause

challenges were being discussed. Because the prosecutor did

not make any for cause challenge against Mr. De La O on

these grounds, he should not have been permitted to advance

this reason as a justification for the peremptory challenge. |

Id.; see also 28 U.S. C. § 1865(b)(2)-(3) (stating that English

proficiency is a requirement for serving on a jury). If the

prosecutor’s concerns were valid, they would have been the

proper subject of a for-cause challenge. While asserting a

justification to support a peremptory challenge that could

also support a cause challenge does not conclusively

establish that the reason was not a race-neutral explanation,

under these circumstances, it is supportive of such a finding.

Finally, several courts have stated that exercising a

peremptory challenge against a venireman on the basis of an

accent raises an inference that the challenge was not race-

neutral and that the reason may be a pretext. See State v.

Gonzalez, 53 A.2d 210, 216 (Conn. 1988) (noting that the

prosecutor’s focus on a juror’s accent “raises the spectre of

an illicit motive at work”); People v. Garcia, 620 N.Y.S.2d

237, 246 (Supreme Court, Bronx County, New York 1994)

(considering as evidence of discriminatory intent the fact that

a lawyer did not raise the issue of a juror’s accent and

English proficiency by asserting a for-cause challenge but

instead waited to exercise a peremptory challenge on these

grounds).

Because the prosecution did not offer a race-neutral

explanation for its strike of Mr. De La O, and in fact offered

a specific race-based explanation, the trial court erred in

rejecting the defense counsel’s timely Batson challenge to

the prosecution’s jury strikes. This Court should reverse the

trial court’s verdict and remand the case for a new trial

before a properly selected jury.

2. Even if the prosecution’s explanation regarding

Mr. De La O was race-neutral, the trial court

clearly erred in accepting it.

In evaluating the explanation for a given jury strike, the

district court should determine whether the explanation was

race-neutral, was tied to the particular circumstances of the

case and was not pretextual. See Munoz, 15 F.3d at 399. As

set forth above, the explanation here was not race-neutral,

but it also was not tied to the particular circumstances of the

case, and it was a pretext.

The prosecution argued that it struck Mr. De La O

because it was concerned with his ability to communicate.

However, in the exchange that took place between Mr. De

La O and the court during voir dire, Mr. De La O appeared to

make himself fully understood:

THE COURT: Mr. De La O? How are you doing

this afternoon?

PROSPECTIVE JUROR: Fine.

THE COURT: Do you remember hearing

something about this case before we came to court,

seeing anything on TV or reading something in the

paper?

PROSPECTIVE JUROR: No, not really. I was

watching the news last night and when it came on

television, I walked out of the room for some

reason, so I didn’t.

THE COURT: You didn’t catch it? Did you ever

hear of some alleged group out there called the

Mexican Mafia?

PROSPECTIVE JUROR: Last time I heard it, it

didn’t stay in my mind at all.

THE COURT: What do you remember hearing

about any type of group that might be out there

that’s called "the Mexican Mafia"?

PROSPECTIVE JUROR: Just not nothing really,

that stayed in my mind.

THE COURT: Anything about what you heard in

the past that could affect you if you were a juror in

this case?

PROSPECTIVE JUROR: No, sir.

THE COURT: Can you presume each one of these

guys not guilty and vote not guilty, unless the

Government can prove to you that they’ re guilty?

PROSPECTIVE JUROR: I think so.

THE COURT: Okay. And you won’t be affected

by anything that you heard before you came to court

today?

PROSPECTIVE JUROR: No, none at all.

THE COURT: Thank you. .

PROSPECTIVE JUROR: That’s it?

(App. D.) This transcript provides no indication that the

district court, counsel or the court reporter had any trouble

understanding Mr. De La O.

The Fifth Circuit has recognized that “in certain, or even

most, situations in Texas striking on [the basis of Spanish

language ability] would be . . . a pretext for prohibited

striking for ethnicity.” Munoz, 15 F.3d at 399. In Munoz,

the court of appeals provided an exception to that general

rule — when the prosecution expressed a concern that Spanish

speakers would not accept official translations of Spanish.

Id. That exception is not applicable in this case. The

prosecution was not concerned with jurors translating on

their own. Thus, this is among the situations in which the

prospective juror’s language ability was in no way tied to the

particular circumstances of the trial, and it was nothing more

than a proxy for his race.

An Illinois Court of Appeals has recently addressed

whether or not exercising a peremptory challenge against a

juror solely on the basis of an alleged accent is pretextual.

See People v. Morales, 719 N.E.2d 261, 270 (Ill. Ct. App.

_1999). In Morales, the prosecutor used a peremptory

challenge to strike a Hispanic venireperson. Id. At the

Batson hearing, the prosecutor supported his peremptory

challenge by arguing that the juror had a heavy accent and

potentially a language problem. Jd. But the Illinois Court of

Appeals found that the reasons proffered by the prosecutor

were pretextual and that the juror was challenged because he

was Hispanic. Id. at 271. The court noted that the record of

voir dire did not support the state’s explanation because the

judge had asked the juror over 30 different questions

concerning many different topics and at no point was the

juror unresponsive, unintelligible, or otherwise unable to

understand the questions being posed to him. Id. at 270-271.

The court stated:

“[T]here is a conflict in the state’s explanation. If

the prosecutors really challenged [the juror] because

he had trouble understanding English, there is no

evidence in the record to support this conclusion.

But if the state struck [the juror] from the venire

because he had a Spanish accent, then we can only

conclude that he was challenged because he was

Hispanic.”

Id.

As in Morales, the prosecutor’s implication that Mr. De

La O might have difficulty understanding or communicating

during the proceedings is not supported by the record. The

record reveals that Mr. De La O was competent in the

English language and was able to express himself, engage in

dialog, communicate with the trial court and understand the

questions being posed to him, despite the prosecutor’s

allegations that Mr. De La O’s accent affected his ability to

communicate and understand. Mr. De La O was struck on

the basis of his Hispanic accent, a proxy for race. The

peremptory challenge and supporting explanation offered by

the prosecutor was not race neutral; rather, the explanation

proffered by he prosecutor was a pretext and was not tied to

the particular circumstances of the case. Thus, the trial court

committed a clear error in accepting the prosecution’s

explanation for its strike of Mr. De La O.

CONCLUSION

This Court has previously held that proficiency in a

particular language should in some circumstances be treated

as a surrogate for race under the equal protection analysis.

Hernandez v. New York, 500 U.S. at 372. This case presents

exactly that situation because the prosecutor’s reference to

Mr. De La O’s “strong accent” was a reference to the fact

that Mr. De La O was not a native English speaker.

Accordingly, the prosecution’s explanation ffor its

preemptory strike was not race-neutral, and Robert Herrera’s

right to equal protection under the law was violated.

For these reasons, this Court should grant certiorari,

reverse the court of appeals, and remand the case to the trial

court for a new trial.

Respectfully submitted

Andrews & Kurth L.L.P.

Solace Kirkland Southwick*

* Counsel of Record

600 Travis Street, Suite 4200

Houston, Texas 77002

(713) 220-4200

Attorneys for Petitioner,

Robert “Robe” Herrera

Dated: February 6, 2003

APPENDIX

Unpublished Opinion of the United States Court of

Appeals for the Fifth Circuit, No. 99-50279; United

States of America v. Jesse “Chango” Gomez, Jr., also

known as Changito Gomez; Pete Carrion; Remigio

“Tito” Gomez; Robert “Robe” Herrera, also known as

Rove Herrera, Jr.; Juan “Jon Jon” Johns; Martin

“Pancake” Ortegon; Robert “Beaver” Perez; Victor

“Tito” Pena; Michael Perez; Louis “Big Lou” Morales

(On Appeal from the United States District Court for

the Western District of Texas (SA-98-CR-265-6))

Order Denying Rehearing

Verdict in Cause No. SA-98-CR-265-6

Portion of Transcript Concerning Mr. De La O and

Batson Challenge

The Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution

APPENDIX A

A-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50279

U.S. COURT OF APPEALS

FILED

SEP 16 2002

CHARLES R. FULBRUGE

CLERK

UNITED STATES OF Plaintiff-Appellee,

AMERICA,

versus

JESSE “CHANGO” GOMEZ, JR.

also known as Changito Gomez;

PETE CARRION; REMIGIO “TITO”

GOMEZ; ROBERT “ROBE” HERRERA,

also known as Rove Herrera, Jr.; JUAN

“JON JON” JOHNS; MARTIN

“PANCAKE” ORTEGON; ROBERT

“BEAVER” PEREZ; VICTOR

“TITO” PENA; MICHAEL PEREZ;

LOUIS “BIG LOU” MORALES, Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Texas

(SA-98-CR-265-6)

Before JOLLY, DUHE, and DENNIS, Circuit Judges.

A-2 -

E. GRADY JOLLY, Circuit Judge:'

| This appeal arises from convictions of drug traffickers

| alleged to be members of the “Texas Mexican Mafia.” The

record is replete with evidence of murders, extortion, drug

dealing and robberies. Jesse Gomez, Jr., Pete Carrion,

| Remigio Gomez, Robert Herrera, Juan Johns, Martin

Ortegon, Robert Perez, Victor Pena, Michael Perez, and

Louis Morales (“Appellants”) were convicted of racketeering

and racketeering conspiracy. Each was sentenced to life

imprisonment. They appeal their convictions and sentences

on numerous grounds. Finding no reversible error, we

AFFIRM.

Appellants were indicted, along with six other

individuals, for racketeering and racketeering conspiracy, in

violation of 18 U.S.C. § 1962(c) and (d). The indictment

alleged 22 racketeering acts, including 15 murders, two

attempted murders, two robberies, and possession with intent

to distribute marijuana, cocaine, and heroin; and 35 overt

acts in furtherance of the racketeering conspiracy.

Appellants were alleged to be members of the Texas

Mexican Mafia, headquartered in San Antonio. The

Mexican Mafia had a written constitution that described its

purposes and activities, which expressly included drug

dealing, assassination, prostitution, “robberies of the highest

degree,” gambling, extortion, weapons, “or any and every

other thing criminally imaginable.”

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' Pursuant to 5TH Cir. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Appellant Robert Perez, the “General,” allegedly carried

out the wishes of unindicted co-conspirator Huerta, the

President of the Mexican Mafia, who was in prison

throughout the time of the alleged racketeering activity. The

remaining Appellants were alleged to have held the

following positions in the Mexican Mafia: Herrera was a

Captain; Morales and Ortegon were Lieutenants; Jesse and

Remigio Gomez and Johns were Sergeants; and Pena,

Michael Perez, and Carrion were Soldiers.

Five of the persons indicted pleaded guilty before trial,

and one during trial. The ten remaining defendants

(Appellants) were convicted of both counts after a six-week

trial. All were sentenced to concurrent life terms on each

count.

Appellants raise the following issues on appeal: (1) the

district court clearly erred in rejecting their Challenge to the

Government’s strike of a prospective juror; (2) the district

court abused its discretion by denying defense motions for

severance; (3) the district court abused its discretion by

denying defense motions for transfer of venue and a hearing

on the motions; (4) the district court abused its discretion by

admitting gang expert testimony that did not satisfy Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);

(5) the district court committed plain error by instructing the

jury that the Government need only show a minimal effect

on interstate commerce; (6) the evidence is insufficient to

prove that the defendants participated in a pattern of

racketeering activity and conspired to do so, and to prove

venue and the requisite effect on interstate commerce;

(7) their convictions must be reversed because of violations

of Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United

States, 405 U.S. 150 (1972), and the Jencks Act, 18 U.S.C.

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§ 3500; (8) the district court abused its discretion by not

submitting a special verdict form; (9) the district court

committed plain sentencing error under Apprendi v. New

Jersey, 530 U.S. 466 (2000); and (10) the district court

abused its discretion by denying Ortegon a hearing on his

motion for a new trial.” With the exception of the first issue

listed above, the remaining issues are without merit and we

shall dispose of them with very little discussion.

Peremptory Strike

Appellants objected to the Government’s peremptory

strike of Hispanic veniremember De LaO.? When asked to

explain the reason for the strike, the prosecutor stated that

De La O had a very strong accent and the Government was

concemed about his ability to communicate with other

jurors, as well as the facts that he is single and is a special

education teacher. The Government’s swom written

response stated that four persons seated at the Government’s

counsel table believed that De LaO and the court had

difficulty communicating during voir dire, and that the

prosecution believed that, as a special education teacher,

De La O would be particularly sensitive and sympathetic to

the circumstances of the defendants. The district court, after

2 Appellants each adopt most of the issues raised by the others.

Appellants also objected to other peremptory challenges by the

Government, but the only strike they raise on appeal is that of De La O.

Remigio Gomez adopts this issue despite the fact that his counsel

expressly opted out of the objection at trial; he claims ineffective

assistance of counsel.

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reviewing the Government’s written reasons, accepted them

as race-neutral, stating:

The Court has reviewed the reasons given by the

Government as to the challenges, the written

responses of the Government. The court is sensitive

to this matter, my parents telling me that they are

Hispanic and that more likely that might make me

one as well, the Court is extra sensitive to that issue.

The Court recalls the questions that the Court itself

asked and responses, and the Court is satisfied the

reasons given by the Government are not based on

any racial grounds, but were legitimate reasons for

striking these individuals and will deny the Defense

motion with regard to those five strikes that were

made by the Government as to five gentlemen that

appear to be of Latino or Hispanic descent.

The jury was composed of eight whites and four Hispanics.

Appellants argue that the prosecutor’s reasons for

striking De La O are not race-neutral, because his Spanish

accent is intrinsically intertwined with his Hispanic ethnicity

and thus should be viewed as a surrogate for his ethnicity.

They argue that the Government’s reliance on his accent is a

pretext for discrimination, because De La O did not have any

difficulty in understanding the questions asked by the judge

or communicating his answers during voir dire, and he was a

trained professional educator who spoke fluent English.

They observe that the Government did not strike four

unmarried jurors, one of whom is also a teacher.

We review the district court’s determination that the

Government did not engage in purposeful discrimination

under the clearly erroneous standard. E.g., United States v.

Pofahl, 990 F.2d 1456, 1466 (Sth Cir. 1993). “Unless a

discriminatory intent is inherent in the prosecutor’s

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explanation, the reason offered will be deemed race neutral.”

Hernandez v. New York, 500 U.S. 352, 357 (1991). Great

deference is given to the district court’s finding, because it is

based primarily on an evaluation of the credibility or

demeanor of the attorney who exercises the challenge. /d. at

365.

The Ninth Circuit recently addressed a similar situation

in United States v. Murillo, 288 F.3d 1126, 1135-37 (9th Cir.

2002), petition for cert. filed (Jul. 24, 2002) (No. 02-5778).

In that case, the defendant, a Filipino, challenged the

prosecution’s exercise of a peremptory strike of a Filipino

prospective juror. Jd. at 1135. The prosecutor offered the

following reasons for the strike: the prospective juror’s

background as a casino employee, her statement that she had

never read a book, her statement that her favorite television

show was “Judge Judy,” and her difficulty in

communicating. Jd. The Ninth Circuit stated that “the

various reasons offered by the prosecution did not inherently

suggest a discriminatory intent, and indeed, were race-

neutral.” Jd. at 1136. The court rejected the defendant’s

contention that “difficulty communicating implies an

inherent discriminatory intent,” noting that it had previously

held that “‘[s]o long as the prosecutor . . . can convince the

district court that the potential juror who is being struck in

fact has difficulty with English, the justification is race-

neutral."” Jd. (brackets and italics in original; quoting

United States v. Changco, | F.3d 837, 840 (9th Cir. 1993)). ~

We agree with the Ninth Circuit’s observations

regarding the deference that an appellate court must give to

the district court’s factual determination when ruling on the

credibility of a prosecutor's strike based on a juror’s

difficulty in communicating:

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The trial judge is in 2 unique position to

determine whether a _ witness has_ difficulty

communicating, and therefore we grant a high level

of deference to the district court’s finding on this

point. It is difficult to ascertain from a transcript

the level of a juror’s command of spoken

English.... How slowly she spoke, whether she

hesitated, how thick her accent was, and what her

body language revealed are not recorded in a

transcript, yet these are aspects of communication

that may be considered by the trial judge.

Id. In this case, giving due deference to the district court’s

opportunity to hear and observe both the prosecutor and

De La O, we cannot conclude that the district court clearly

erred in finding that the Government’s reasons for

peremptorily striking of De La O were not pretextual. The

Government did not strike De LaO because he had a

Spanish accent. Instead, the strike was based on the

prosecutors’ asserted belief that his heavy accent would

cause communication difficulties with other jurors during

deliberations. This reason is ethnically-neutral. The district

court observed the prosecutor’s demeanor. It listened to

De LaO during voir dire. It was therefore in the best

position to determine the credibility of the prosecutor’s

explanation and to make the ultimate finding as to whether

the prosecutor’s reasons for striking DeLaO were

pretextual.* We will not disturb its ruling.

* We find no abuse of discretion by the district court in refusing

to permit Appellants’ counsel to cross-examine the prosecutor or look at

the prosecutor’s voir dire notes. See United States v. Clemons, 941 F.2d

321, 323 (Sth Cir. 1991) (district court has discretion to formulate

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Severance

Ortegon, Carrion, Michael Perez, and Morales argue that

the district court erred by denying their motions for

severance. They maintain that they were prejudiced by the

spillover effect of the evidence of their co-defendants’

violent crimes (especially the “French Place” murders,

described as one of the worst mass murders in recent San

Antonio history) and drug dealing. Furthermore, they argue,

the district court’s instructions to the jury to consider the

evidence against each defendant separately were inadequate

to ameliorate the prejudice.

The Government responds that the alleged prejudicial

evidence would have also been admissible in separate trials

to show the existence of the enterprise, overt acts, motives

for the murders with which they were involved, and the

position of trust they held in the organization. The

Government also notes that the district court allowed the

jurors to take notes to assist them in keeping the evidence

against each defendant separate. Furthermore, the

Government points out that defense counsel argued in

closing that the jury should consider the evidence against

each defendant separately.

We find no abuse of discretion. Appellants have not

shown any ground for disregarding the presumption that the

jurors followed the district court’s instructions to consider

the evidence against each defendant separately. See United

procedure for testing prosecutor’s reasons, and has discretion to limit

scope and duration of inquiry).

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States v. Cihak, 137 F.3d 252, 259 (Sth Cir. 1998) (jury is

presumed able to follow instructions to consider evidence

against each defendant separately).

Transfer of Venue

Appellants argue that the district court abused its

discretion by denying defense motions for transfer of venue

and a hearing on their motions. They maintain that they

were denied a fair trial in San Antonio because of pervasive,

prejudicial pretrial publicity. In support of their motions,

they presented 69 broadcast summaries from San Antonio

television stations, newspaper articles, and a transcript from

a state court venue proceeding, including expert testimony

about the saturation of media coverage. They note that the

publicity occurred within close proximity to the trial; that it

contained inflammatory accounts of the crimes,

characterizing the defendants as blood-thirsty and describing

the French Place murders as a slaughter, bloodbath,

execution, and the worst mass murder in recent San Antonio

history; and that it included matters inadmissible in evidence,

such as the anticipated sentences, the guilty pleas of co-

defendants, and the statement by one defense attorney that

the other defendants were probably guilty.

Prejudice will be presumed if the defendant establishes

that it is virtually impossible to obtain an impartial jury

because prejudicial, inflammatory publicity about the case

has saturated the community from which the jury is drawn.

United States v. Parker, 877 F.2d 327, 330-31 (Sth Cir.

1989). The Government may rebut the presumption of

prejudice by demonstrating that voir dire resulted in the

impaneling of an impartial jury. Jd. at 331. Alternatively, a

defendant may obtain relief if he establishes that pretrial

publicity created a significant possibility of prejudice and

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that the voir dire procedure failed to provide a reasonable

assurance that prejudice would be discovered. United States

v. Beckner, 69 F.3d 1290, 1292 (Sth Cir. 1995). The

defendant is entitled to an evidentiary hearing when the

allegations are “sufficiently definite, specific, detailed, and

nonconjectural to enable the court to conclude that a

substantial claim is presented.” United States v. Smith-

Bowman, 76 F.3d 634, 637 (Sth Cir. 1996) (internal

auotaiion marks and citation omitted).

Appellants argue that they have established presumptive

prejudice. Alternatively, they contend’ that they

demonstrated a significant possibility of prejudice. They

note that 85 percent of the prospective jurors admitted that

they had been exposed to pretrial publicity; a majority of

those had heard about the trial and the French Place murders

within the week preceding the trial; and 11 of the 12 jurors

selected said that they had been exposed to pretrial publicity

concerning the trial, the Mexican Mafia, and the French

Place murders. As proof of the inadequacy of the voir dire

procedure, they observe that the ccurt did not allow

questioning by counsel or the use of a jury questionnaire.

They also point out that, prior to the jury being sworn, one of

the jurors who had been selected approached the district

court and said that she could not be fair because she had

been influenced negatively by pretrial publicity. (She was

excused.)

Although the question may be close, we conclude that

there was no abuse of discretion. Even assuming that

Appellants established presumptive prejudice, the

presumption was rebutted by the selection of a fair jury. The

district court first questioned the venire as a group, and

excused those who said that they might be affected by

pretrial publicity. It then questioned each remaining

veniremember individually, excusing for cause all who

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indicated that they might have been affected. All of the

jurors selected indicated that they had not been affected by

the publicity; and all jurors stated that they would accord the

presumption of innocence to all of the defendants. Contrary

to the Appellants’ argument, that one of the jurors

approached the district court and said that she could not be

fair demonstrates the effectiveness of the voir dire procedure

in revealing prejudice.

Admission of Testimony About Gangs

Appellants argue that their convictions must be reversed

because the district court admitted gang expert testimony

that did not satisfy the requirements of Daubert. They argue

that the expert was unable to point to any peer-reviewed

articles or other literature in the field and had no formal

education in gang-related activities. The Government asks

us to strike this argument because Appellants do not specify

what testimony they believe was admitted in error or how it

prejudiced them. The Government notes that the witness, a

San Antonio Police Department detective with 31 years of

experience, testified on a variety of subjects, including the

activities and purposes of the Mexican Mafia, and he offered

a translation of correspondence between Mexican Mafia

members about Mexican Mafia activities. The Government

did not offer the witness as an expert, and it argues that most

of his testimony was factual and dealt with information he

had learned in his capacity as a law enforcement officer. To

the extent he expressed any opinions, the Government argues

that they are admissible as lay opinions under Federal Rule

of Evidence 701, because they are based on personal

knowledge of the facts. Alternatively, the Government

argues that any error is harmless because the witness would

have qualified as an expert witness under Federal Rule of

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Evidence 702 and, in any event, his testimony was

cumulative.

We find no abuse of discretion by the district court.

Even assuming this issue was adequately briefed (which is

marginal), and further assuming that the testimony was

admitted erroneously, Appellants have not demonstrated that

their substantial rights were affected. See FED. R. EvD.

103(a).

Jury Instructions

Appellants argue that the district court erred by

instructing the jury that the Government need only show a

minimal effect on interstate commerce. They maintain that

the Government was required to demonstrate that their

activities had a substantial effect on interstate commerce.

The Government notes that none of the Appellants objected

to the instruction, none of them submitted proposed

instructions requiring the jury to find a substantial effect on

interstate commerce, and two of them (Remigio Gomez and

Robert Perez) proposed instructions requiring only a minimal

effect and thus invited the error of which they complain. See

United States v. Baytank (Houston). Inc., 934 F.2d 599,

606-07 (5th Cir. 1991). The Government contends that even

if there was an error, it was not plain and, in any event, it

was harmless because the evidence shows a substantial effect

on interstate commerce.

Five circuits have held that it is not necessary to show

that a RICO enterprise’s effect on interstate commerce is

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substantial.’ Neither the Supreme Court nor our court has

decided this issue. See United States v. Robertson, 514 U.S.

669, 670-72 (1995) (leaving open question whether RICO

enterprise’s activities must “substantially affect” interstate

commerce where enterprise was engaged in commerce).

Under the circumstances of this case, we need not decide

whether the instruction was erroneous, because even

assuming that it was, any error would not be plain given the

unsettled state of the law both in the Supreme Court and in

this circuit, and the overwhelming evidence of drug

trafficking involved in this RICO enterprise. Accordingly,

we hold that the district court did not commit plain error by

* United States v. Marino, 277 F.3d 11, 34-35 (Ist Cir.) (rejecting

contention that government was required to show that enterprise’s

activity had a substantial effect on interstate commerce and approving

instruction that “[t}he evidence need not show any particular degree of or

effect on interstate commerce. All that is required is some effect on

interstate commerce.”), cert. denied, 122 S.Ct. 2639 (2002); United

States v. Riddle, 249 F.3d 529, 537 (6th Cir.) (“de minimis connection

suffices for a RICO enterprise that ‘affects’ interstate commerce”), cert.

denied, 122 S.Ct. 292 (2001); United States v. Juvenile Male, 118 F.3d

1344, 1348 (9th Cir. 1997) (“all that is required to establish federal

jurisdiction in a RICO prosecution is a showing that the individual

predicate racketeering acts have a de minimis impact on interstate

commerce”); United States v. Miller, 116 F.3d 641, 673-74 (2d Cir.

1997) (approving instructions in RICO case that effect of enterprise’s

activities on interstate commerce does not need to be substantial and that

a minimal effect is sufficient); United States v. White, 116 F.3d 903, 926

& n.8 (D.C. Cir. 1997) (approving instruction that “evidence need not

show any particular degree of effect on interstate commerce” and

explaining that, because RICO enterprise was engaged in drug

trafficking, there was a substantial effect on or relation to commerce;

therefore, fact that district court did not require jury to find that

conspiracy affected interstate commerce to any particular degree was

irrelevant).

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instructing the jury that the Government need prove only a

minimal effect on interstate commerce.

Sufficiency of the Evidence

Appellants contend that the Government presented

insufficient evidence that they participated in a pattern of

racketeering activity and conspired to do so, and to prove

venue and the requisite effect on interstate commerce. We

address each of these contentions separately. We note at the

outset, however, that Appellants’ insufficient evidence

arguments are based largely on challenges to the credibility

of Mexican Mafia members who testified against them.

They argue that the testimony of admitted psychotic,

hallucinogenic, and drug-addicted co-defendants (Estrada,

Carrasco, and Torres) who were seeking entry into the

federal witness protection program was not credible. We

reject these challenges to the credibility of the Government’s

witnesses. “It is well settled that credibility determinations

are the sole province of the jury.” United States v. Cathey,

25 F.3d 365, 368 (Sth Cir. 2001). “The jury has

responsibility for determining the weight and credibiity of

testimony and evidence, even from coconspirators.” United

States v. Green, 293 F.3d 886, 895 (Sth Cir. 2002)

Pattern of Racketeering Activity

Appellants argue that the evidence is insufficient to

prove that they engaged in a pattern of racketeering activity,

because the evidence of the predicate racketeering acts is

insufficient. We consider each challenged predicate act

separately.

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Ortegon: Possession with Intent to Distribute Cocaine

We reject Ortegon’s contention that the evidence was

insufficient to prove that he possessed cocaine with the intent

to distribute it. A bag full of cocaine, as well as plastic bags

used to package cocaine, were found in a car driven by

Herrera, under the passenger seat occupied by Ortegon, who

had a fully loaded revolver tucked in his waistband. Ortegon

argues that the evidence was insufficient to prove that he

knew the cocaine was under his seat. He notes that Herrera

pleaded guilty to possession of the cocaine in state court,

while the charges against him were dismissed. In the light of

other evidence that Ortegon was a drug dealer and a gang

leader, the jury reasonably could have concluded that

Ortegon knew the cocaine was present and was armed to

protect it.

Ortegon: Murder of Peralez

Ortegon also argues that the evidence was insufficient to

prove his involvement in the murder of Peralez. Former

Mexican Mafia member Estrada testified that Appellant

Herrera ordered him and Ortegon to murder Peralez; and

that, on a signal from Herrera, he (Estrada) shot Peralez, but

Ortegon did not fire his weapon. Ortegon argues that

Estrada’s testimony is not credible. We conclude that the

evidence was sufficient to find Ortegon guilty of murder

under the law of the parties, on which the jury was

instructed. Estrada’s admission that he was the only one

who shot Peralez lends credibility to his testimony that

Ortegon was with him. In any event, such credibility

determinations are for the jury, not this court, to make.

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Ortegon and Michael Perez: Murder of Adames

Ortegon and Michael Perez contest the sufficiency of the

evidence offered by the Government to prove that they were

guilty of the murder of Adames.

Estrada testified: Michael Perez and Ortegon were

present at a meeting at Robert Perez’s house during which

the murder of Adames was planned; Michael Perez drove the

car to the scene and blocked Adames’s means of escape;

Ortegon got out of the car with a gun; Estrada shot Adames

and heard a lot of other gunshots; and after the shooting,

Michael Perez drove the shooters to a truck, where they

unloaded their weapons. Carrasco, who was also present,

testified that everyone (Herrera, Ortegon, Estrada and

himself) except Michael Perez got out of the car and shot at

Adames. The medical examiner found that Adames had

been shot 11 times with three different weapons. Ortegon

and Michael Perez argue that Carrasco and Estrada were not

credible witnesses, inasmuch as they were drug addicts

testifying in exchange for leniency. In addition, Michael

Perez relies on defense witness Sanchez’s testimony that

Michael Valdez, not Michael Perez, was the driver of the car

involved in the Adames murder. He also notes that the

Government substituted his name for that of Michael Valdez

in a search warrant only after he refused to cooperate against

his uncle (Appellant Robert Perez).

We conclude that the evidence was sufficient to convict

Ortegon and Michael Perez under the law of the parties, as to

which the jury was instructed. We repeat: Decisions about

the credibility of witnesses are for the jury.

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Ortegon and Michael Perez: Murder of Ybarra

Ortegon and Michael Perez also challenge the

sufficiency of the evidence that they murdered Ybarra. They

assert that Estrada’s and Carrasco’s testimony that Ortegon

shot Ybarra, and that Michael Perez drove the car to and

from the murder scene, is not credible.

The jury was entitled to determine the credibility of

Estrada’s and Carrasco’s testimony. In addition to their

testimony, the Government presented other corroborating

evidence, including the in-court identification of Ortegon as

the shooter by eyewitness Marco Gonzalez. The

Government also presented evidence that Michael Perez was

present at the meeting when the murder was planned; that he

drove the vehicle to the scene of the murder; and that, after

the shooting, he drove the shooters to a truck, where they

unloaded their weapons.

e€

Carrion and Morales: Possession with

Intent to Distribute Marijuana

Carrion and Morales argue that the evidence was

insufficient to prove that they possessed marijuana with the

intent to distribute it. Former Mexican Mafia member Jesse

Torres testified: he saw 50 pounds of marijuana at Morales’s

mother’s home; Morales, Carrion, and Escalante had been

told by Robert Perez to steal the marijuana from someone;

after they stole the marijuana, someone else called Robert

Perez to have him come pick it up; when Robert Perez

arrived at Morales’s mother’s house, Morales, Carrion, and

Escalante were weighing and dividing it; Robert Perez gave

each of them a pound and then sold the rest to someone in

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Houston. Carrion and Morales argue that this evidence is

insufficient because Torres was a liar and heroin addict and

thus his testimony was not credible. We reject that

contention. It was up to the jury whether to believe Torres’s

testimony.

Carrion and Morales: Murder of De Los Santos

Carrion and Morales challenge the sufficiency of the

evidence offered to prove their participation in the murder of

De Los Santos.

Munoz testified: he instructed Flores to have his crew

kill De Los Santos because he was talking to outsiders about

the French Place murders; Munoz drove De Los Santos to a

bar under the guise of having him assist Morales and Carrion

with a hijacking; Carrion’s rental car was parked outside the

bar and Morales and Carrion were inside; he left the bar five-

ten minutes later, leaving De Los Santos with Morales and

Carrion; later, Flores told him that De Los Santos was dead.

Munoz admitted that he did not see De Los Santos murdered

and did not know who had killed him. Although Munoz

testified that he did not see Torres at the bar, Torres testified

that he was there, along with Davila and Flores, when

Munoz and De Los Santos arrived. Torres testified further

that Flores later told him De Los Santos had been killed; and

that he later heard Morales bragging about the murder and

laughing about how he had choked De Los Santos. The

medical examiner testified that the cause of death was most

likely a combination of blunt injuries to the head and

strangulation, although the injuries that appeared to be

caused by strangulation could have been caused by blunt

trauma from being hit by a vehicle. The manager of the

rental car agency testified that, when Carrion’s rental car was

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returned, there were no signs of damage consistent with it

having hit a person.

Morales and Carrion argue that there is no physical

evidence to connect them to the murder; no one saw De Los

Santos murdered; and both Munoz and Torres testified that

they did not know who killed De Los Santos. Morales notes

that Carrion testified at trial that Morales did not kill De Los

Santos. For the first time in his reply brief, Morales states

that, after trial, Carrion obtained an affidavit in which co-

defendant Pena admitted murdering De Los Santos.

Although circumstantial, the evidence was sufficient.

Appellants’ challenges are based primarily on_ their

contention that the testimony of Munoz and Torres was not

credible. We refuse to consider Morales’ claim that Pena

murdered De Los Santos, raised for the first time in his reply

brief. See United States v. Garcia-Abrego, 141 F.3d 142,

168 n.14 (Sth Cir. 1998)

Johns: Attempted Murder of Castillo

Johns contends that the evidence is insufficient to prove

that he attempted to murder Castillo. Johns and Castillo

were cellmates. Castillo was a member of a different, rival

gang. While Castillo was sleeping, Johns stabbed him 22

times in the head and neck with a shank that had a two and

one-half inch blade. Castillo fought back and held onto

Johns’ legs until prison guards arrived. As Castillo held

Johns down, Johns said, “If you let me go, -—-, I'll stab you

again.” In a search of the cell after the incident, guards

found a torn-up note in the toilet that included the instruction

to “hit to kill.” Johns argues that the evidence is insufficient

to convict him of attempted murder because the evidence

does not prove that he intended to kill Castillo or that he

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inflicted serious bodily injury on Castillo. He notes that

Castillo was able to walk to the infirmary, that none of his

stab wounds required sutures, and that there was no evidence

that Castillo was in danger of death from his wounds. Johns

admits that he used a deadly weapon, and that specific intent

to kill may be inferred from such use; but he claims that the

manner in which he used the weapon makes it reasonably

apparent that he did not intend to cause death or serious

bodily injury.

We conclude that the evidence is sufficient to prove that

Johns attempted to murder Castillo. The fact that Castillo’s

struggle prevented Johns from inflicting a fatal wound does

not preclude the jury from inferring, based on all of the

circumstances, that Johns acted with specific intent to kill.

The Government was not required to prove that Johns caused

serious bodily injury because that is not an element of

attempted murder.

Michael Perez: Association with

E 1 Participation in Its Affai

Michael Perez argues that the evidence is insufficient to

prove that he associated with the enterprise and participated

in its affairs. He contends that the Government failed to

prove that he was a member of the Mexican Mafia; instead,

it showed only a familial relationship with his uncle,

Appellant Robert Perez. He argues that there is no evidence

that he was employed by or associated with the enterprise or

that he intentionally participated in its affairs. Although

there was testimony that he was present at meetings at which

murders were discussed, and that he drove the murderers to

and from the scenes of at least two of the murders, he argues

that there is no evidence that he participated in the meetings

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or that he was there for any other reason than that he is the

nephew of Robert Perez.

We conclude that the evidence is sufficient. Carrasco

and Estrada both testified that Michael Perez was a member

of the Mexican Mafia. The Government also introduced a

photograph of Michael Perez with Mexican Mafia members

Herrera, Ortegon, and Carrasco. There was also evidence

that he helped clean bullets used in the murders. the jury

was entitled to infer that he would not have been allowed to

be present at murder-planning meetings and to drive the

shooters to and from the scenes of the murders unless he was

a member of the Mexican Mafia.

Remigio Gomez: Attempted Murder of Grant

Remigio Gomez contends that the evidence is

insufficient to prove that he attempted to murder Grant.

Mexican Mafia member Tavitas testified that Remigio

Gomez shot Grant during a hijacking conducted by a crew

led by Appellant Jesse Gomez. Another Mexican Mafia

member, Munoz, testified that Jesse Gomez told him that

Remigio Gomez shot Grant. Remigio Gomez argues that

this evidence is insufficient to prove that he committed

attempted murder. He argues that Texas law requires the

prosecution to prove that the act was intentional rather than

an accident; yet the Government has conceded that he

panicked when he shot Grant. He claims that Grant's

appearance surprised him, and that he panicked and

accidentally discharged the shotgun in Grant’s direction

when Grant reached out to push the weapon away. He

concedes, however, that at trial he presented an identity

defense and did not argue that the shooting was an accident.

The Government notes that there is no evidence that Grant

touched the shotgun or attempted to push it away. It also

A-22

notes that the photograph of Grant’s wounds does not

support the theory that the gun accidentally discharged;

instead, it appears that Grant had been pushed down onto his

knees and then shot.

We conclude that the evidence is sufficient. As the

Government notes, the fact that Remigio Gomez panicked is

not relevant to the issue of his intent, and the jury reasonably

could have concluded that he intended to kill Grant when he

pointed the shotgun at him and pulled the trigger.

Racketeering Conspiracy

Appellants’ challenges to the sufficiency of evidence of

conspiracy are, again, based primarily on their attacks on the

credibility of the Government’s witnesses. In addition, some

of them argue that the Government failed to prove each overt

act alleged in the indictment. Finally, some of them argue

that their participation in the various overt and predicate

racketeering acts is insufficient to prove that they knew of

and agreed to the overall objectives of the enterprise.

We conclude that the evidence is sufficient. As stated,

credibility choices are for the jury. The Government was not

required to prove each overt act alleged in support of the

racketeering conspiracy. See 18 U.S.C. § 1962(d); Salinas v.

United States, 522 U.S. 52, 62 (1997) (RICO conspiracy

statute, 18 U.S.C. § 1962(d), does not require proof of overt

act). There is sufficient evidence to show that each

Appellant participated in at least some of the predicate and

overt acts. This evidence, together with their membership in

the Mexican Mafia, whose written constitution describes the

illegal purposes and objectives of the organization, is indeed

evidence that they knew of and agreed to the overall

objectives of the enterprise.

Dicer erteetninieconns come aca, Tsismis cma

A-23

Effect on Interstate Commerce

Appellants contend that the Government presented

insufficient evidence that the activities of the enterprise had a

substantial effect on interstate commerce. Alternatively,

they argue that, even if only a minimal effect on interstate

commerce is required, the Government failed to prove any

effect. They argue that all of the alleged criminal acts took

place in and around San Antonio, and that the evidence of

interstate communication (written and telephonic) was, at

best, incidental to the operation of the enterprise.°

* As we have earlier noted, Appellants did not object to the jury

instructions, which required the jury to find only a minimal effect on

interstate commerce. In cases in which the Government fails to object to

jury instructions, we have held that the unobjected-to instructions, even if

erroneous, become the law of the case, and we have judged the

sufficiency of the evidence in accordance with the law established in the

jury instructions. See United States v. Spletzer, 535 F.2d 950, 954 (Sth

Cir. 1976) (element of specific intent became law of the case where

defendant was indicted for “knowingly, wilfully and unlawfully

escaping” and court instructed jury, without objection, that specific intent

was required for conviction; therefore, court did not need to decide

whether specific intent was an element of the offense; conviction

reversed because Government failed to present sufficient evidence of

specific intent); United States v. Taylor, 933 F.2d 307, 310 (Sth Cir.

1991) (although statute did not require proof of specific intent, it became

an element under law of the case doctrine when defendant was indicted

for willfully escaping federal custody and government failed to object

when court instructed jury that specific intent was an element; evidence

was sufficient to prove specific intent)

We have not found any cases applying this principle in cases in

which the defendant fails to object to a jury instruction and then

A-24

The Government responds that, although only a minimal

effect is required, it proved that the activities of the

enterprise had a substantial effect on interstate commerce.

The Government relies on the following evidence: The

Mexican Mafia engaged in drug trafficking and extorted a

ten percent “tax” from drug dealers. Those who did not pay

the tax were robbed or murdered. The money and property

collected and stolen were used to finance the purchase of

money orders that were mailed to Mexican Mafia members,

many of whom were in prison, some in states outside of

Texas. A letter from a Mexican Mafia member to Appellant

Robert Perez referred to the availability of pure, uncut

cocaine from Colombia. Mexican Mafia business was

conducted by mail, including through letters from Mexican

Mafia president Huerta, who was in prison in Kansas and

then in Colorado, that were mailed to Texas. Mexican Mafia

members used telephones and pagers to communicate Mafia

business, and some of the telephone calls were placed from

Texas to Mexican Mafia members in out-of-state prisons.

Membership in the Mexican Mafia was not limited to Texas

residents or Texas prisoners; some members were from

California.

As we have previously noted, neither the Supreme Court

nor our court has decided whether a RICO enterprise’s

activities must “substantially” affect interstate or foreign

challenges the sufficiency of the evidence on a ground that is not

consistent with the jury instructions. Were we to apply the principle

established in those cases in this case, evidence that the enterprise’s

activities had a minimal effect on interstate commerce would be

sufficient. We do not reach that question, however, in the light of our

conclusion that the Government presented evidence sufficient to establish

that the enterprise’s activities had a substantial effect on interstate

commerce.

A-25

commerce, or whether proof of a minimal effect is sufficient.

It is not necessary for us to decide that issue in this case

because the Government presented evidence that the

activities of the Mexican Mafia satisfy the interstate

commerce requirement for constitutionality of the act.

At the outset, we note that Congress has made

persuasive findings that organized crime and drug

trafficking, both of which are activities in which the Mexican

Mafia was engaged, have a substantial effect on interstate

commerce. In enacting RICO, Congress made the following

findings regarding the effect of organized crime on interstate

commerce:

... Organized crime in the United States annually

drains billions of dollars from America’s economy

by unlawful conduct and the illegal use of force,

fraud, and corruption; . . . organized crime activities

in the United States weaken the stability of the

Nation’s economic system,...[and] seriously

burden interstate and foreign commerce.

Congressional Statement and Findings of Purpose,

Organized Crime Control Act, Pub. L. No. 91-452, 84 Stat.

922, 922-23 (1970).

Congress has also found that drug trafficking

substantially affects interstate commerce:

(3) A major portion of the traffic in

controlled substances flows through interstate and

foreign commerce. Incidents of the traffic which

are not an integral part of the interstate or foreign

flow, such as manufacture, local distribution, and

possession, nonetheless have a substantial and

direct effect upon interstate commerce because- -

A-26

(A) after manufacture, many _ controlled

substances are transported in interstate commerce,

(B) controlled substances distributed locally

usually have been transported in _ interstate

commerce immediately before their distribution,

and

commonly flow through interstate commerce

immediately prior to such possession.

(4) Local distribution and possession of

controlled substances contribute to swelling the

interstate traffic in such substances.

(5) Controlled substances manufactured and

distributed intrastate cannot be differentiated from

controlled substances manufactured and distributed

interstate. Thus, it is not feasible to distinguish, in

terms of controls, between controlled substances

manufactured and _ distributed interstate and

controlled substances manufactured and distributed

intrastate.

(6) Federal control of the intrastate incidents

of the traffic in controlled substances is essential to

the effective control of the interstate incidents of

such traffic.

21 U.S.C. §§ 801(3)-(6). See United States v. Lopez, 2 F.3d

1342, 1366 n.50 (Sth Cir. 1993) (noting “the now

unchallenged federal authority over intrastate as well as

interstate narcotics trafficking,” and observing that “all drug

trafficking, intrastate as well as interstate, has been held

properly subject to federal regulation on the basis of detailed

Congressional findings that such was necessary to regulate

A-27

interstate trafficking”), aff'd, 514 U.S. 549 (1995); see also

White, 116 F.3d at 926 & n.8 (substantial effect on interstate

commerce established where RICO enterprise was engaged

in drug trafficking).

The activities of the Mexican Mafia -- narcotics

trafficking, extortion from individuals engaged in narcotics

trafficking, and committing other organized crime, including

murders, to extort money and avoid detection -- Clearly are

among the kinds of activities that Congress has found to

have a substantial effect on interstate commerce. The record

contains overwhelming evidence that the Mexican Mafia

engaged in drug trafficking, as well as extortion from drug

dealers. The murders alleged as predicate acts were Closely

related to the enterprise’s drug trafficking and extortion

activities. There is evidence that at least some of the illegal

drugs were obtained from sources outside the State of Texas.

Instrumentalities of interstate commerce were used to

conduct the business of the Mexican Mafia, and some of that

business was conducted across state lines. Thus, the

evidence presented in this case is sufficient to establish the

interstate commerce element of the RICO charges.

Venue

Appellants argue that the Government failed to prove

that any of the acts took place in the Western District of

Texas, as alleged in the indictment. They do not argue that

venue was improper.

In denying motions for acquittal on this ground, the

district court, relying on maps of the areas where various acts

took place, and noting that many of the acts occurred within

the city limits of San Antonio, took judicial notice of the fact

that San Antonio is in the Western District of Texas.

A-28

Appellants argue that the evidence was insufficient for the

court to take judicial notice of venue. We disagree. The

evidence showed that San Antonio was the headquarters of

the Mexican Mafia and the area in which it operated. As

Appellants acknowledge, most of the predicate acts took

place in San Antonio. In the light of this evidence, as well as

the maps of the area that were admitted into evidence, the

district court did not err by taking judicial notice of the fact

that San Antonio is in the Western District of Texas.

Brady, Giglio, and Jencks

Appellants argue that their convictions must be reversed

because of violations of Brady, Giglio, and the Jencks Act.’

They contend that the Government violated due process and

the Jencks Act by failing timely to provide to the defense the

following items: (a) letters drafted by or on behalf of

Government witness Estrada; (b)Estrada’s immunity

agreement; (c) papers signed by Estrada; (d)a written

statement provided to police by Frank Rios; (e) a written

statement provided to police by Mario Sanchez; and (f)a

report written by Detective Bellamy. They contend that they

were prejudiced because the failure timely to provide these

documents prevented defense counsel from conducting

effective cross-examination. We address each item in turn.

7 Although Appellants also refer to violations of Brady and

Giglio, their arguments focus primarily on alleged Jencks Act violations.

A-29

Estrada Letters

Estrada sent FBI Agent Appleby three letters, the first of

which was lost. Agent Appleby testified that the first letter

was written for Estrada by another inmate. In it, Estrada

offered to cooperate by providing information about the

Mexican Mafia. He also related a threat that the Mexican

Mafia had made against his life. The second letter listed

homicides about which Estrada had information. Both this

second and the third letters were provided to defense counsel

during trial. After the letters were provided, defense counsel

were allowed to question Agent Appleby about them. The

district court denied defense motions to strike Estrada’s

testimony. Estrada then was recalled to the stand and

defense counsel were allowed to further cross-examine him.

The Government concedes that there is no good-faith

exception to the Jencks Act, but argues that the district court,

in refusing to strike Estrada’s testimony, implicitly found

that the first letter, which was lost, was not material or

important to the defense.

Appellants have not demonstrated that they were harmed

by the delay in producing the second and third letters,

because they were allowed to cross-examine Agent Appleby

and Estrada after receiving them. The district court did not

err by refusing to strike Estrada’s testimony because of the

failure to produce the first letter, because Agent Appleby’s

testimony about that letter shows that it was not material to

the defense. In any event, even if there was error, it was

harmless.

A-30

Estrada Immunity Agreement

The Government asserts that, although it is clear that

Estrada was granted immunity (he testified about it), there is

no evidence of the existence of a written immunity

agreement. Even assuming such an agreement exists, it is

not a statement of a witness and thus is not covered by

Jencks. In the light of Estrada’s testimony about his grant of

immunity, Appellants were not prejudiced by the failure to

produce a written agreement (assuming it exists)

Papers Signed by Estrada

Estrada testified that he had signed some papers when he

met with Agent Appleby, but he did not know the contents of

the papers because he does not read or write. At a Jencks

hearing, Agent Appleby testified that he never had Estrada

sign any statements. The Government notes that Appellants

did not ask the district court to make a ruling after the

Agent’s testimony. Appellants have failed to demonstrate

that the papers existed or that, if they exist, they are

s{atements covered by the Jencks Act or that they were

material to the defense.

Rios Statement

Government witness Rios testified that he had given a

written statement to a detective when he was arrested on a

motion to revoke his probation, but that the statement did not

address the matters covered in his testimony at Appellants’

trial. Pena’s counsel acknowledged receipt of the statement

ee ee

A-31

after Rios had testified. The only Appellant who asked to

have Rios re-called was Johns, who has not raised this issue

on appeal. The Government asserts that this issue was not

preserved for appeal because defense counsel failed to

Submit a copy of the statement for the record. Even

assuming the issue was preserved, there is no.showing that

Appellants were prejudiced by the delay in receiving the

Statement. The statement is not covered by the Jencks Act,

because it is not related to the subject matter of Rios’s

testimony.

Sanchez Statement

Mario Sanchez was a defense witness called by Michael

Perez. During cross-€xamination, the Government referred

to his sworn statement, and defense counsel claimed they

had not received it. Although the Government stated that it

had provided a copy along with the police report, the district

court ruled that the Government could not use the statement

for impeachment and ordered the Government to provide it

to defense counsel. The Government did so the next day.

The only Appellant who asked to re-call the witness was

Johns, who does not raise this issue on appeal.

The Jencks Act does not cover Statements of defense

witnesses. Appellants do not allege, nor did they obtain a

ruling, that the statement contains material exculpatory

information. In any event, Appellants do not assert that the

delay in receiving the document prejudiced them.

A-32

Detective Bellamy’s Notes

The Government provided defense counsel with four or

five pages of Detective Bellamy’s notes, with some

deletions. Appellants sought the entire document. Because

it named informants, the Government asked the district court

to review it in camera to determine whether it contained

impeachment or exculpatory information. The district court

denied defense counsel’s request for the entire document,

explaining that it was not Jencks material because Bellamy

was not a witness, and that it did not contain any Brady or

Giglio material. We find no error by the district court in this

ruling.

General Verdict Form

Appellants contend that, in this complex criminal RICO

trial involving multiple defendants, dozens of alleged

predicate acts, and considerable opportunity for juror

confusion and disagreement, the district court violated their

due process rights by submitting a general verdict form,

which asked only whether each of the defendants was guilty

of the crimes charged in counts 1 and 2 of the indictment.

The Appellants concede that the district court instructed the

jurors that they must reach a unanimous verdict as to each

racketeering act alleged to have been committed by each

defendant. They argue, however, that the general verdict

form did not adequately ensure that the jury recognize that it

must unanimously agree as to each defendant’s involvement

in the same two or more specific predicate racketeering acts.

They contend that a special verdict form was required by due

process as a safeguard to ensure that the jury followed the

court’s instructions. Some of the Appellants also argue that

A-33

a special verdict form was necessary for the conspiracy count

so that the jury could specify which overt acts each

defendant had committed. The Government responds that

special verdicts traditionally have been disfavored in

criminal cases, and that the use of a general verdict form did

not result in due process violations at sentencing.

We find no abuse of discretion or due process violation

in the use of a general verdict form in this case. The district

court instructed the jury that, to convict on the substantive

count, it had to agree unanimously that each defendant

committed at least two predicate acts, and that it must

unanimously agree as to which two or more specific

predicate acts each defendant committed. It further

instructed the jury that it was not sufficient that some of the

jurors find that the defendant under consideration committed

two of the acts, while other jurors find that the defendant

committed different acts.

The record here indicates that the district court’s

instructions were clear, and that Appellants were not

prejudiced by the use of a general verdict form. Appellants

have offered no basis for disregarding the presumption that

the jury followed its instructions. Because commission of an

overt act is not an element of RICO conspiracy, see Salinas,

522 U.S. at 62, the district court did not abuse its discretion

by not submitting a special verdict requiring the jury to

designate the overt acts committed by each defendant.

Apprendi

Appellants argue that their sentences were imposed in

violation of Apprendi (decided a year after they were

sentenced), because the district court enhanced their

sentences to life imprisonment, in excess of the statutory

A-34

maximum 20-year term, on the basis of facts (murder,

attempted murder, and aggravated robbery) not alleged in the

indictment, presented to the jury, and found by the jury

beyond a reasonable doubt. Appellants contend that,

because they were charged with more racketeering acts than

the two necessary for conviction, some of which are not

punishable by life imprisonment, the general verdict form

makes it impossible to tell whether the jury found them

guilty of predicate acts punishable by life imprisonment.

Some of the Appellants argue that the district court

committed Apprendi error by failing to submit to the jury the

drug quantity element of the predicate acts involving

marijuana and cocaine. Some of them also argue that the

district court did not instruct the jury on the elements of the

predicate racketeering acts.

There is no Apprendi indictment error, because the

indictment alleged the facts of the racketeering acts that were

the basis of the enhanced sentences. There is no Apprendi

instructional error, because the district court instructed the

jury on the elements of each of the predicate racketeering

acts and instructed that the jury’s verdict must be unanimous

as to each of the two or more specific racketeering acts

alleged to have been committed by each defendant. Because

there were no sentence enhancements based on the drug

racketeering acts, the district court did not violate Apprendi

by failing to submit the drug quantity element to the jury.

Finally, the district court did not err by failing to instruct the

jury as to overt acts, because proof of overt acts is not

necessary for a RICO conspiracy conviction. See Salinas,

522 U.S. at 62. There was no Apprendi sentencing error,

because the jury necessarily found that each Appellant

committed at least one predicate act punishable by life

imprisonment, as explained below for each Appellant.

A-35

Appellant Carrion was charged with three racketeering

acts: possession with intent to distribute marijuana and two

murders. Because the jury found him guilty of racketeering,

which requires finding that he committed at least two

racketeering acts, the jury necessarily found that he

committed at least one murder, which is punishable by life

imprisonment.

Ortegon was charged with four racketeering acts:

possession with intent to distribute cocaine and three

murders. Thus, the jury necessarily found that he committed

at least one murder, which is punishable by life

imprisonment.

Morales was charged with only two racketeering acts,

one of which was murder. Thus, the jury necessarily found

that he committed murder, which is punishable by life

imprisonment.

Jesse Gomez was charged with seven racketeering acts,

one of which was robbery and the remainder of which were

murders. Thus, the jury necessarily found that he committed

at least one murder, which is punishable by life

imprisonment.

Because Remigio Gomez was charged with only two

racketeering acts (attempted murder and aggravated

robbery), the jury necessarily found that he committed both.

Aggravated robbery is punishable by life imprisonment.

Because Michael Perez was charged with only two

racketeering acts (both murders punishable by life

imprisonment), the jury necessarily found that he committed

both.

Herrera was charged with seven racketeering acts: five

murders, One attempted murder, and possession with intent

A-36

to distribute cocaine. Because Herrera had prior felony

convictions, the attempted murder is punishable by life

imprisonment. Thus, the jury necessarily found that he

committed at least one predicate act punishable by life

imprisonment.

Because Johns was charged with only two racketeering

acts, one of which was aggravated robbery, the jury

necessarily found that he committed at least one act

punishable by life imprisonment.

Robert Perez was charged with eight racketeering acts:

six murders, one attempted murder (punishable by life

imprisonment because he has a prior felony conviction), and

possession with intent to distribute marijuana. Thus, the jury

necessarily found that he committed at least one act

punishable by life imprisonment.

Because Pena was charged with only two racketeering

acts (murder and aggravated robbery), the jury necessarily

found that he committed an act punishable by life

imprisonment.

ial of i w

Ortegon argues that the district court abused its

discretion by denying him a hearing on his motion for new

trial. He sought a new trial on the grounds that the verdict

was against the weight of the evidence, newly discovered

evidence, and perjured testimony. He argues that the district

court erred by failing to make findings of fact independently

weighing the evidence and assessing credibility. His

argument regarding newly-discovered evidence pertains to

the Estrada letters that are the subject of the Jencks Act claim

discussed above. He claims that the lost Estrada letter was

A-37

written by Ramos and that, by the time the defense was put

on notice of the lost letter, it was too late to secure Ramos as

a witness and, in any event, neither the defense nor the

prosecution knew Ramos’s whereabouts. He maintains that

the testimony of Ramos about the contents of the letter

would have been material to his guilt, but he does not

indicate what Ramos’s testimony would have been. He

claims that Estrada committed perjury by testifying that the

murder of Emilio Alejandro was ordered by the Mexican

. Mafia. He bases this claim on Carrasco’s knowledge that

Estrada killed Alejandro because of a personal vendetta. He

also claims that his girlfriend, Loera, committed perjury

when she testified that he had used heroin at her house.

Finally, he asserts that the district court should have

conducted an evidentiary hearing on his motion. The

Government observes that the motion referred to an affidavit

of Loera offered to prove that she had committed perjury, but

the affidavit was not attached and is not in the record.

We find no abuse of discretion. The verdict was not

against the weight of the evidence. There is no support for

the claim that Loera committed perjury; but even if Loera’s

affidavit had been attached to the motion, and assuming its

truth, the fact that she lied when she testified that Ortegon

used heroin did not affect the outcome of the trial. There is

little support for Ortegon’s assertion that Estrada lied about

his reasons for killing Alejandro -- he might have had more

than one motive. In any event, Ortegon fails to explain how

he was prejudiced.

For the foregoing reasons, the Appellants’ convictions

and sentences are

AFFIRMED.

APPENDIX B

B-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50279

U.S. COURT OF APPEALS

FILED

NOV 08 2002

CHARLES R. FULBRUGE

CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JESSE “CHANGO” GOMEZ, JR. also known

as Changito Gomez; PETE CARRION; REMIGIO —-

“TITO” GOMEZ; ROBERT “ROBE” HERRERA,

also known as Rove Herrera, Jr.; JUAN “JON JON”

JOHNS; MARTIN “PANCAKE” ORTEGON;

ROBERT “BEAVER” PEREZ; VICTOR “TITO”

PENA; MICHAEL PEREZ; LOUIS “BIG LOU”

MORALES,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Texas,

San Antonio

Before JOLLY, DUHE, and DENNIS, Circuit Judges.

PER CURIAM:

B-2

IT IS ORDERED that the petition for rehearing filed by

Pete Carrion, Juan Johns, Martin P. Ortegon, Robert Perez,

Victor T. Pena, Louis B. Morales, and Jesse Gomez, Jr. is

/ DENIED /.

ENTERED FOR THE COURT: )

/s/_ E. Grady Jolly

United States Circuit Judge

CSP SE RB Sa SE

DR a Es AE IT ae LS tak 8S

PRR.

APPENDIX C

C-1

5761

1 tomorrow morning at 9:00.

2 COURT SECURITY OFFICER: All rise.

3 * * KX KK *

4 (March 3, 1999).

5 (Defendants present).

6 THECOURT: The Court received a note last week and

the

7 attorneys were informed, the jury wanted to leave and did

leave

8 at noon last Thursday. One of the jurors had a job

interview

9 and the jury requested that they be allowed to leave early

10 that the juror could make a job interview. So the jury

was

11 excused early. That was the first note received Thursday

12 10:49. And then yesterday at 3:00 o'clock the jury

received

13 (sic) a second note that said "We have reached a verdict"

signed

14 Ms. Siptak. Bring the jury in.

15 THECOURT SECURITY OFFICER: All rise.

16 (Jury entered courtroom).

17 THECOURT: Mrs. Siptak, you are the foreperson of

this

18 jury and I received a note from you yesterday that said

the jury

19 has reached a unanimous verdict as to each of the

defendants.

C-2

20 Is that correct?

21 JUROR: Yes.

22 THECOURT: Would you give it to the bailiff?

23. Mr. Perez, if you would stand please with your attorney,

24 Mr. McLeod. In the case of United States of America

: versus

25 Robert Perez, defendant, "Verdict: We the jury find the

nee

‘ | Captured/Transcribed by Computer -- Stenograph/Premier

: Power

GERBER OME eR Capea SN eae Ci a Se RR See

5762

1 Defendant Robert Perez, guilty as charged in Count One

of the

2 superceding indictment and guilty as charged in Count

Two of the

3 superceding indictment." Signed by the foreperson and

dated.

4 MR. MCLEOD: Could I make my motion for polling

the _

5 jury?

6 THE COURT: Yes, sir. You may make that motion.

7 Mr. Herrera, if you wouid stand please with your

attomey,

8 Mr. Futrell. In the case of the United States of America

versus

9 Robert Herrera, "Verdict: We the jury find the defendant

Robert

10 Herrera, guilty as charged in Count One of the

superceding

11 indictment and guilty as charged in Count Two of the

superceding

12 indictment,” signed and dated by the foreperson of the

Jury.

13 You may be seated.

14 Mr. Carrion, if you would stand please with your

attomey,

15 Mr. Robbins. In the case United States of America

versus Pete

16 Carrion, "We the jury find the defendant Pete Carrion

guilty as

17 charged in Count One of the superceding indictment and

guilty as

18 charged in Count Two of the superceding indictment,"

signed and

19 dated by the foreperson.

;

: |

C-4

20 Mr. Gomez, if you would stand piease with your

attorney, Mr.

21 McCarthy. In the case of the United States of America

versus

22 Jesse Gomez, “We the jury find the defendant Jesse

Gomez guilty

23 as charged in Count One of the superceding indictment

and guilty

24 as charged in Count Two of the superceding indictment."

Signed

25 and dated by the foreperson.

Captured/Transcribed by Computer -- Stenograph/Premier

Power

C-5

5763

1 Mr. Remigio Gomez, if you would stand please with

your

2 attorney, Mr. Economidy. In the case of the United States

3 America versus Remigio Gomez, "Verdict: We the jury

find the

4 defendant Remigio Gomez guilty as charged in Count One

of the

5 superceding indictment and guilty as charged in Count

Two of the

6 superceding indictment," and dated by the foreperson.

Thank

7 you.

8 Mr. Johns, if you would stand up please with Mr.

Stenberg.

9 United States of America versus Juan Johns, "Verdict:

We the

10 jury find the defendant Juan Johns, guilty as charged in

Count

11 One of the superceding indictment and guilty as charged

in Count

12 Two of the superceding indictment," dated and signed by

the

13 foreperson.

14 Mr. Morales, if you would stand please with your

attomey,

15 Mr. Sergi. In the case United States of America versus

Luis

16 Morales, "Verdict: We the jury find the defendant Luis

Morales,

TE DAMUES WORT a

, aetry ie sk i ee ae

C-6

17 guilty as charged in Count One of the superceding

indictment and

18 guilty as charged in Count Two of the superceding

indictment,”

19 signed and dated by the foreperson.

20 Mr. Martin Ortegon, if you would stand please with

your

21 attorney, Ms. Douenat. "Verdict: We the jury find the

defendant

22 Martin Ortegon, guilty as charged in Count One of the

23 superceding indictment and guilty as charged in Count

Two of the

24 superceding indictment,” singed and dated by the

foreperson.

25 Mr. Victor Pena, if you would stand please with your

Captured/Transcribed by Computer -- Stenograph/Premier

Power

5764

1 attorney, Mr. Wolf. "Verdict: We the jury find the

defendant

2 Victor Pena, guilty as charged in Count-One of the

superceding

3 indictment and guilty as charged in Count Two of the

superceding

4 indictment,” dated and signed by the foreperson.

5 In the case of Michael Perez, if you would stand Mr.

Perez,

6 with Mr. Camera, please. In the case of United States of

7 America versus Michael Perez, "Verdict: We the jury find

the

8 defendant Michael Perez, guilty as charged in Count One

of the

9 superceding indictment and guilty as charged in Count

Two of the

10 superceding indictment," dated and signed by the

foreperson.

11 Ms. Siptak, you are the foreperson. Did I read those

12 correctly? Is that the unanimous decision of the jury?

13. JUROR: Yes, you did.

14 THE COURT: I'll assume that everyone wishes the

jury

15 polled, and I will poll the jury as to each defendant

unless I'm

16 told otherwise. Members of the Jury, the clerk of the

Court is

17 going to call out your name as to each defendant and

we'll do

C-8

18 this ten times as to each one individual, and the question

that

19 is being asked is: "Is this your verdict." She will not

repeat

20 the question, she will simply call out your name, but as

your

21 name is called out, if you would please answer the

question, "Is

22 this your verdict,” either "yes" or "no."

23 MR.CAMARA: Your Honor, if I could, Defendant

Michael

24 Perez does not want the jury polled.

25 THE COURT: Okay.

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COURTROOM DEPUTY:

Lawrence?

—m OO CO~) AU kh W NO

— ©

JUROR: Yes.

COURTROOM DEPUTY:

JUROR: Yes.

COURTROOM DEPUTY:

JUROR: Yes.

COURTROOM DEPUTY:

JUROR: Yes.

COURTROOM DEPUTY:

JUROR: Yes.

COURTROOM DEPUTY

JUROR: Yes.

COURTROOM DEPUTY

JUROR: Yes.

COURTROOM DEPUTY

JUROR: Yes.

COURTROOM DEPUTY

JUROR: Yes.

COURTROOM DEPUTY

JUROR: Yes.

COURTROOM DEPUTY

JUROR: Yes.

COURTROOM DEPUTY

JUROR: Yes.

COURTROOM DEPUTY

5765

As to Robert Perez, Mr.

Ms. Doralee Turner?

Mr. Rodriguez?

Ms. Stehling?

Mr. Wilkie?

: Ms. Siptak?

: Mr. Lopez?

: Ms. Taylor?

: Mr. Recroft?

: Mr. Parson?

: Mr. Gonzales?

: And Ms. Hegland?

: As to Robert Herrera.

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IAN na al MRE oe in SO RUB ht

C-10

5766

1 MR.FUTRELL: Your Honor, Mr. Herrera does not

wish the

2 jury to be polled.

3 COURTROOM DEPUTY: As to Pete Carrion.

4 MR. ROBBINS: We don't particularly care to have the

5 jury polled.

6 MR.MCCARTHY: Neither does Jesse Gomez.

7 COURTROOM DEPUTY: As to Remigio Gomez. Mr.

Lawrence?

8 JUROR: Yes.

9 COURTROOM DEPUTY: Ms. Turner?

10 JUROR: Yes.

11 COURTROOM DEPUTY: Mr. Rodriguez?

12 JUROR: Yes.

13 COURTROOM DEPUTY: Ms. Stehling?

14 JUROR: Yes.

15 COURTROOM DEPUTY: Mr. Wilkie?

16 JUROR: Yes.

17 COURTROOM DEPUTY: Ms. Siptak?

18 JUROR: Yes.

19 COURTROOM DEPUTY: Ms. Taylor?

20 JUROR: Yes.

21 COURTROOM DEPUTY: Mr. Recroft?

22 JUROR: Yes.

23 COURTROOM DEPUTY: Mr. Parson?

24 JUROR: Yes.

25 COURTROOM DEPUTY: Mr. Gonzales?

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5767

1 JUROR: Yes.

2 COURTROOM DEPUTY: And Ms. Hegland?

3 JUROR: Yes.

COURTROOM DEPUTY: As to Juan Johns. Mr.

Lawrence?

5 JUROR: Yes.

6 COURTROOM DEPUTY: Ms. Turner?

7 JUROR: Yes.

8 COURTROOM DEPUTY: Mr. Rodriguez?

9 JUROR: Yes.

10 COURTROOM DEPUTY: Ms. Stehling.

11 JUROR: Yes.

12 COURTROOM DEPUTY: Mr. Wilkie?

13 JUROR: Yes.

14 COURTROOM DEPUTY: Ms. Siptak?

15 JUROR: Yes.

16 COURTROOM DEPUTY: Mr. Lopez?

17 JUROR: Yes.

18 COURTROOM DEPUTY: Ms. Taylor?

19 JUROR: Yes.

20 COURTROOM DEPUTY: Mr. Recroft?

21 JUROR: Yes.

22 COURTROOM DEPUTY: Mr. Parson?

23 JUROR: Yes.

24 COURTROOM DEPUTY: Mr. Gonzales?

25 JUROR: Yes.

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5768

1 COURTROOM DEPUTY: And Ms. Hegland?

2 JUROR: Yes.

3 COURTROOM DEPUTY: As to Luis Morales. Mr.

Lawrence?

4 JUROR: Yes.

5 COURTROOM DEPUTY: Ms. Turner?

6 JUROR: Yes.

7 COURTROOM DEPUTY: Mr. Rodriguez?

8 JUROR: Yes.

9 COURTROOM DEPUTY: Ms. Stehling?

10 JUROR: Yes.

11 COURTROOM DEPUTY: Mr. Wilkie?

12 JUROR: Yes.

13 COURTROOM DEPUTY: Ms. Siptak?

14 JUROR: Yes.

15 COURTROOM DEPUTY: Mr. Lopez?

16 JUROR: Yes.

17 COURTROOM DEPUTY: Ms. Taylor?

18 JUROR: Yes.

19 COURTROOM DEPUTY: Mr. Recroft?

20 JUROR: Yes.

ii 21 COURTROOM DEPUTY: Mr. Parson?

| 22 JUROR: Yes.

‘| 23 COURTROOM DEPUTY: Mr. Gonzales?

| 24 JUROR: Yes.

1 25 COURTROOM DEPUTY: And Ms. Hegland?

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| |

C-13

5769

1 JUROR: Yes.

2 COURTROOM DEPUTY: As to Martin Ortegon.

Mr.

3 Lawrence?

4 JUROR: Yes.

> COURTROOM DEPUTY: Ms. Turner?

6 JUROR: Yes.

7 COURTROOM DEPUTY: Mr. Rodriguez?

8 JUROR: Yes.

9 COURTROOM DEPUTY: Ms. Stehling?

10 JUROR: Yes.

11 COURTROOM DEPUTY: Mr. Wilkie?

12 JUROR: Yes.

13 COURTROOM DEPUTY: Ms. Siptak?

14 JUROR: Yes.

15 COURTROOM DEPUTY: Mr. Lopez?

16 JUROR: Yes.

17 COURTROOM DEPUTY: Ms. Taylor?

18 JUROR: Yes.

19 COURTROOM DEPUTY: Mr. Recroft?

20 JUROR: Yes.

21 COURTROOM DEPUTY: Mr. Parson?

22 JUROR: Yes.

23 COURTROOM DEPUTY: Mr. Gonzales?

24 JUROR: Yes.

25 COURTROOM DEPUTY: Ms. Hegland?

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5770

1 JUROR: Yes.

| 2 COURTROOM DEPUTY: As to Victor Pena. Mr.

| Lawrence?

3 JUROR: Yes.

4 COURTROOM DEPUTY: Ms. Turner?

5 JUROR: Yes.

6 COURTROOM DEPUTY: Mr. Rodriguez?

7 JUROR: Yes.

8 COURTROOM DEPUTY: Ms. Stehling?

9 JUROR: Yes.

10 COURTROOM DEPUTY: Mr. Wilkie?

11 JUROR: Yes.

12 COURTROOM DEPUTY: Ms. Siptak?

13 JUROR: Yes.

COURTROOM DEPUTY: Mr. Lopez?

| 15 JUROR: Yes.

| 16 COURTROOM DEPUTY: Ms. Taylor?

17 JUROR: Yes.

| 18 COURTROOM DEPUTY: Mr. Recroft?

| 19 JUROR: Yes.

1 | 20 COURTROOM DEPUTY: Mr. Parson?

| 21 JUROR: Yes.

22 COURTROOM DEPUTY: Mr. Gonzales?

23 JUROR: Yes.

| 24 COURTROOM DEPUTY: And Ms. Hegland?

i | 25 JUROR: Yes.

Se a al ne

—

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D-1

272

1 or give you one strike each.

2 MS. DOUENAT: I vote for a strike.

3 MR. ECONOMIDY: I vote to give Mr. Wyatt his

4 occupational excuse.

5 THE COURT REPORTER: One at a time.

6 THE COURT: I'll give you each an extra strike. So you

7 get 21. That means you have -- 21 strikes through 68, 11

8 strikes through 68. And then we go 68 through the end.

This is

9 the -- you get two more?

10 COURTROOM DEPUTY: Two for each side.

11 THE COURT: Two for each side. So you get 21 strikes

12 up through 68.

13 MR. FUTRELL: And then one more after that?

14 COURTROOM DEPUTY: No, two more.

15 THE COURT: You say through 68, but 68 is off.

16 COURTROOM DEPUTY: Right.

17 MR. MCLEOD: Through 69?

18 THE COURT: Through 69.

19 COURTROOM DEPUTY: Start with 69 and go to 77 --

79.

20 THE COURT: But 69 is included in the 21 strikes and

21 the 11 strikes. Because then they go from 70 to -- 21

strikes

22 thzough 69, 11 strikes through 69, and then two strikes

for the

23 Defense and two strikes for the Government, with 70 to

the end.

24 Do you want to sit here and talk to your clients about it?

25 will excuse the jurors and let them go out.

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1 MR. WOLF: Is the Government going to go in another

2 room?

3 THE COURT: I don't know, but do you guys want to talk

4 to your clients?

5 MS. DOUENAT: We also would like to confer with each

6 other. :

7 THE COURT: But I will excuse the jury. Okay. One

8 more time. Why don't y'all go on downstairs and I will be

with

9 you as soon as we can. Isn't this fun?

10 (Off-the-record discussion).

11 (Counsel conferred).

12 THE COURT::- If it's all right with you, I'm just going

13 to send the jury clerk downstairs, call out the names of

those

14 that are on the jury and have them come up. Rather than

15 bringing everybody up here, I'm just going to tell her to

16 down there and call out the names and bring those up that

are on :

17 the jury.

18 MR. MCCARTHY: Judge, are you going to keep the

other

19 panel down there?

20 MS. MCLEOD: We might have possible Batson

challenge.

21 THE COURT: Yeah.

22 MR. MCCARTHY: We have to do it before you dismiss

the

23 other panel.

24 THE COURT: Yeah. Go ahead and call their names up

and

25 keep the rest of the panel. And don't bring them in yet,

but ;

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274

1 start bringing them up.

2 (Brief recess).

3 THE COURT: Who do we have? Number one is number

4 Rocky Lawrence, number 2 is number 7, Doralee Turner;

number 3

5 is number 15, Roel Rodriguez; number 4 is number 16,

Irene

6 Stehling; number 5 is Edward M. Wilkie, number 19;

number 6 is

7 number 23, Vicki M. Siptak; number 7 is number 25,

Ramiro Lopez;

8 number 8 is number 26, Nora Taylor; number 9 is number

37, Maria

9 Gomez; number 10 is number 42, Rollin Recroft; number

Il is

10 number 53, Larry Parson; and number 12 is number 54,

Juan

11 Gonzales; alternate number | is number 72, Diane

Hegland;

12 alternate number 2 is number 76, Mike Mena; alternate

number 3

13 is number 77, Lois Norket; alternate number 4 is number

78,

14 Carolyn Garcia. Anything from anyone before I bring

the jury

15 in?

16 MR. MCLEOD: We are still counting. I have a motion

17 have a hearing to determine the Batson challenge.

18 THE COURT: Okay.

19 MR. MCLEOD: I would like to call David Sergi as my

20 witness. Can he testify from here, Your Honor?

21 THE COURT: That's fine.

D-5

22 MR. MCLEOD: David, I'll ask you a couple of

23 questions. Are you familiar with the clients in this case,

24 specifically my client, Robert Perez?

25 MR. SERGI: Yes, I am.

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275

1 MR. MCLEOD: Are you able to distinguish between

Anglo-

2 Saxon, Mexicans, blacks, and whites.

3 MR. SERGI: Yes, I am.

4 MR. MCLEOD: Have you reached an opinion as to the

5 ethnicity of my client, Robert Perez?

6 MR. SERGI: I believe he is Hispanic.

7 THE COURT: I think everybody stipulates that the 10

8 defendants are Hispanic. Is there anybody who doesn't?

Okay.

9 Let the record reflect that all 10 defendants on trial are

10 Hispanic, all Latinos, or whatever is the politically

correct

11 term.

12 MR. MCLEOD: Your Honor, I would move that the

panel be

13 struck on the basis that the U.S. Government has struck

at least

14 six, that I can tell, that are Hispanic, out of their 11

15 strikes, and they -- in their alternate strikes, they struck

two

16 that are Hispanic, which I think would be discriminating

against

17 people of the Hispanic ethnicity and would warrant this

panel

18 being excused and another jury panel being provided.

19 MR. SERGI: I would join in that motion. ;

20 MR. ECONOMIDY: Defendant Remegio Gomez does :

not join

21 that.

22 THE COURT: Okay. And let the record reflect

everybody

23 else joins?.

D-7

24 MR. MCCARTHY: Yes, Judge. Can we have a hearing

25 that, as far as present evidence, asking the U.S. Attorney

why

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1 he made some of the strikes?

2 THE COURT: Yeah. Is there anything else to present?

3 MR.MCLEOD: We have nothing else.

4 THE COURT: What sayeth the Government?

5 MR. MCCARTHY: I would like to do direct examination

6 him.

7 MR. SERGI: Actually, Your Honor, I would like to see

8 the notes of the Government on each of the Hispanic --

9 THE COURT: I will let the Government respond. Mr.

10 Baumann?

11 MR. BAUMANN: Judge, I think they are going to have

12 identify which juror -- prospective juror they believe was

stricken, based on a racially biased choice.

14 THE COURT: It is a person, which one?

15 MR. SERGI: Juror number 79. Juror number 74.

16 THE COURT: Just give me one at a time.

17 MR. SERGI: Number 79.

18 THE COURT: Who is that?

19 MR. SERGI: Jesus Castillo.

20 THE COURT: Well, let's start from the top. Those are

21 alternates. Do you have the list?

22 MR. SERGI: First of all, those that are not double

23 strikes, Your Honor, number 12, Mr. Graf.

24 THE COURT: Mr. Graf? Why did the Government take

off

25 Mr. Graf?

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277

1 MR. BAUMANN: Your Honor --

2 THE COURT: He did have a bar and we'd all have a

place

3 to go after work, but...

4 MR. MCCARTHY: Is this sworn testimony, Judge? Is he

5 sworm?

6 MR. BAUMANN: Yeah. Were you sworn?

7 THE COURT: Go ahead and answer.

8 MR. BAUMANN: Yes, sir. Your Honor, the prospective

9 juror was inattentive at times, was observed to have his

eyes

10 closed at times, during the voir dire by the Court, he is a

bar

11 owner. He stated he does not read the newspaper, and

also

12 stated that he tiad heard something about the Mexican

Mafia.

13 Those were the Government's observations, and based on

those

14 observations, the Government believes that he would not

be a

15 good candidate for jury service in this case.

16 MR. SERGI: Your Honor, I would at this point, request

17 Your Honor, that we review a copy of the Government's

notes,

18 both from Mr. Baumann and Mr. Counts, as well as from

the agents

19 assisting them, relating to that juror.

20 THE COURT: That request is denied.

21 MR. SERGI: Your Honor, I believe we are entitled to

22 review those notes.

23 THE COURT: Any others?

24 MR. MCCARTHY: Your Honor, could we finish with

Mr.

D-10

25 Graf?

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278

1 THE COURT: I asked if there were any others. What's

2 the other one?

3 MR. MCCARTHY: On Mr. Graf, will the Court reflect

that

4 he is Hispanic?

5 MR. BAUMANN: I don't know if he is Hispanic.

6 MR. MCCARTHY: He looks Hispanic to me.

7 MR. STENBERG: Francisco, get serious, Graf, was

8 Hispanic.

9 THE COURT: I don't know. Francisco, get serious,

10 Graf. It doesn't sound Hispanic to me.

11 MR. MCCARTHY: Judge, if we could then, I would

like to

12 call Mr. Graf in and ask him --

13 THE COURT: Okay. What else? Who else? Any

others?

14 MR. SERGI: Yes, sir, Your Honor. We would also --

15 Juror Number 56, Mr. Flores --

16 THE COURT: 56 Flores. Mr. Baumann?

17 ME. BAUMANN: Your Honor, the Government

believed that

18 Mr. Flores' employment as a psychologist, his focus on

learning

19 disorders, particularly with young people would make

him an

20 inappropriate candidate to hear the evidence in this

particular

21 case, considering the nature of the evidence in this case.

22 Essentially, it is an observation based on his

employment, and

23 the fact that he -- we believe would be a decision-maker

and

24 could conceivably sway this jury.

25 MR. SERGI: Your Honor, I believe Mr. Baumanni's

D-12

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279

1 testimony, therefore, reveals a bias against young people,

2 individuals, and I believe, Your Honor, aid is also one of

the

3 impermissible issues under Batson. I believe, Your

Honor, Mr.

4 Flores should be instead, on the jury panel.

5 THE COURT: Any others?

6 MR. SERGI: Yes, Your Honor. The next one would be

7 Mr. De LaO. Your Honor, we would also, at this point,

also

8 like to request the notes regarding Mr. Flores and also

make a _

9 running request for the notes regarding each of the other

10 individuals that we will be --

11 THE COURT: Mr. De La O?

12 MR. MCLEOD: Their reason for striking De La O.

13 MR. BAUMANN: Your Honor, the Government

believed that

14 Mr. De La O had a very, very strong accent, and might

have a

15 difficult time understanding and communicating with

other jurors

16 on the panel. The fact that he was single, the nature of

his

17 employment, we believe also contributed to our decision.

18 THE COURT: The nature of his employment as a

teacher?

19 MR. BAUMANN: Special ed teacher, Your Honor.

Might

20 make him an inappropriate choice in this particular case,

21 considering the nature of the evidence in the case.

22 MR. MCCARTHY: Your Honor --

D-14

23 MR. BAUMANN: We were predominantly concerned

with his

24 very strong accent and difficulty communicating.

25 MR. MCCARTHY: Judge, I would like the record to

note

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280

1 that Mr. O is Hispanic, also.

2 THE COURT: Yeah. Who else?

3 MR. SERGI: Your Honor, I believe there is another

4 special ed teacher, Your Honor, that was not stricken. In

5 addition, Your Honor, going back up to the list, Mrs.

Saldana,

6 juror number 5.

7 MR. BAUMANN: Mrs. Saldana's son was accused of a

8 crime. She also stated that police fudged a report. She

9 doesn't read the newspaper and had heard about La Mafia,

but she

10 misunderstood and believed the La Mafia was the

Mexican Mafia,

11 and that is, in fact, the musical group. So we do not

believe

12 she would be an appropriate candidate, based on that.

13 MR. SERGI: Your Honor, I ask for the notes from the

14 Government regarding Mrs. Saldana. Next, Your Honor,

we would

15 have number 27 --

16 MR. BAUMANN: What number?

17 MR. SERGI: Number 27.

18 THE COURT: Villasenor.

19 MR. SERGI: Villasenor. Sorry. Your Honor, are we

20 going to get a ruling?

21 THE COURT: Yeah, I'm waiting. I'm waiting for all of

22 them. Villasenor?

23 MR. BAUMANN: Your Honor, Mrs. Villasenor is a

divorced

24 lady, she was very talkative during voir dire. She also

stated

25 that she was a witness for the defendant in a slip-and-fall

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1 accident. We believe, based on all of those reasons, that

she

2 would not be a sympathetic Government juror in this case.

3 MR. SERGI: Your Honor, the next would be number 73,

4 Thomas Lara.

5 MR. BAUMANN: Your Honor, Mr. Lara stated in

response

6 to a question frorn the Court regarding what he had heard

or the

7 indictment, I'm not sure which, in a loud and confident

voice,

8 quote, "They were only accusations." We believe that that

9 statement indicated a bias in favor of the Defense in this

10 case. I have no idea whether this man is Hispanic.

Thomas R.

11 Lara, L-a-r-a. I certainly can't remember him, but I don't

have

12 aclue whether he is Hispanic or not.

13 MR. SERGI: Last but not least, Your Honor, would be

14 juror number 79, Mr. Castillo.

15 MR. BAUMANN: Mr. Castillo stated the police fudged

16 report. Was very loud, very aggressive during voir dire.

And

17 the Government's opinion is that he's not going to be a

18 sympathetic juror to the Government's case and would be

19 advocate in the jury room.

20 MR. SERGI: Your Honor, I believe that is it in terms

21 of the --

22 THE COURT: The Court will hold this matter in

abeyance

23 and will ask that any notes with regard to the jury

selection

D-18

24 from the Government or its agents, be recovered and

given to the

25 Court for review. So if you would get everything from

you and

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1 Mr. Counts and the agents, put it together and get it to me

for :

2 review and I will hold this matter in abeyance.

3 MR. SERGI: Your Honor, are you going to dismiss the

4 rest of the jury panel then? 3

5 MR. MCCARTHY: I believe the case law states that --

6 THE COURT: Well, if I grant it, then we'll come back

7 and start with a new panel.

8 MR. MCCARTHY: Otherwise, it is denied. Is it denied

9 now? : ee

10 THE COURT: Well, if I grant it, then that's an

11 improper jury and we'll come back with a new panel and

Start

12 again.

13 MR. SERGI: Your Honor, my understanding of the case

14 law was that we are then entitled to stricken veniremen

15 members of the jury. If you find on some, but not as to

all,

16 unless you find make a finding that the racial anamous

17 (phonetic) was pervasive, or the age-based anamous was

18 pervasive.

19 THE COURT: Well, what's the Government's position

20 this matter, Mr. Baumann?

21 MR. BAUMANN: Judge, you can look at the notes now.

22 don't keep notes relating to the ethnicity of jurors. We

have

23 no problem with the Court looking at the notes right now,

if you

24 want to.

25 THE COURT: Okay. Well, I'm going to -- Where is

D-20

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283

1 Norma? I'm going to go ahead and bring those that are

here now,

2 into the courtroom, excuse them till 1:30 Wednesday, and

then

3 ask those people to come back on Wednesday, as well,

Saldana,

4 Villasenor, Sanchez, Graf, De La O, Lara and Castillo, tell

them

5 to be here.

6 MR. MCCARTHY: All the ones that the Government

struck

7 that were Hispanic, Judge?

8 THE COURT: Yes, that you Say are Hispanic.

9 MR. SERGI: Your Honor, we would concede the ones

that

10 were double strikes, this would only be -- the only reason

11 brought those up was to show the pervasiveness, in terms

of --

12 THE COURT: Okay. So there was Saldana, Graf,

13 Villasenor, Flores, De La O, Lara and Castillo?

14 MR. SERGI: Yes, sir. Your Honor, the double strikes

15 would have been Saldana and --

16 MR. FUTRELL: Double strikes we are conceding. So

17 only need to know the ones that were not.

18 THE COURT: Because y'all brought up others. So

which

19 ones are the ones that --

20 MR. SERGI: The ones that need to come back, Your

21 Honor, would be number 12, Mr. Graf; Number 56, Mr.

Flores; and

22 number 66, Mr. De La O, number 73 and number 79.

23 THE COURT: Okay. Graf, Flores, De La O, and who

D-22

| 24 else?

25 MR. WOLF: 73 and 79.

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284

1 THE COURT: Lara and Castillo. Graf, De La O -- Did

2 you say Flores?

3 MR. SERGI: Flores.

4 THE COURT: Did you say a Sanchez or Saldana?

5 MR. SERGI: Graf, Flores, De La O, Lara and Castillo.

6 THE COURT: Ms. Wagoner, could you ask those people

7 come back at 1:30, those names we just called? And bring

those

8 five along with the others that are still on the jury, bring ’

9 them up here. -

10 MS. WAGONER: Okay.

11 THE COURT: The 16 we've chosen and those five, and

12 everybody else is excused.

13 MS. WAGONER: Okay. And that's Graf, G-r-a-f, or

14 Craft?

15 THE COURT: Graf, 12; Flores, 56; 66 De La O; 73,

Lara;

16 and 79 Castillo. And excuse everyone else.

17 (Panel entered courtroom).

18 THE COURT: There are a few others of you-all coming

19 so hold on a second. We didn't call out everybody's

names.

20 We've got a few more. We don't have room for you

there, but we

21 still aren't quite sure who our complete jury is going to

be.

22 So be patient, we'll bring them up and then we'll get you

out of

23 here hopefully, unless we can do night court. Anybody

fromout ~

24 of town? Where are you at?

25 PROSPECTIVE JUROR: Kenedy.

D-24

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285

1 THE COURT: How far away?

2 PROSPECTIVE JUROR: 70.

3 THE COURT: 70 miles Kenedy.

4 PROSPECTIVE JUROR: Pleasanton. 30 miles.

5 PROSPECTIVE JUROR: Sisterdale, 50 miles.

6 PROSPECTIVE JUROR: New Braunfels.

7 THE COURT: 35, more or less.

8 PROSPECTIVE JUROR: Big Wells, 100.

9 THE COURT: Those that came from over 70 miles can

stay

10 overnight and you are reimbursed, which you are and

you are on

11 the bubble, I guess you qualify, I'll say you qualify. So

those

12 of you that came from over 70 miles, if you want to bring

13 suitcase and stay at a reasonable hotel, you may. Any of

y'all

14 from out of town? No? Okay. We haven't quite finished

yet,

15 completing the jury, but those of you that are here are

going to

16 make up our jury. There are some very important things

that

17 you've got to keep in mind. As you know, I asked all of

you

18 some questions about anything that you might have heard

about

19 this case or about allegations or things involving this

case,

20 because it is real important that you make up your mind

based

21 upon what you hear here in the courtroom. So you can't

go out

D-26

22 and do any investigation, ask anybody for help or advice,

or if

23 you go home and you tell your family, "Hey, I'm on this

case" or

24 somebody at work, "I'm on this case,” say, "Oh, yeah, I

read

25 about it, this is what I heard." Don't let anything like that

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1 happen. Don't read anything, avoid anything on TV if

there is

2 something on TV. Don't let anybody try to tell you that

they

3 heard about it and this is what they think. You should try

4 avoid any information about this case outside the

courtroom. So

5 please don't go out and investigate anything, don't find out

6 more about it. Just put it out of your minds and I will give

7 you more instructions Wednesday. We are going to not

work

8 tomorrow and we're not going to work Wednesday

morning. We

9 won't come back till Wednesday at 1:30. So Wednesday,

I'll let

10 you go back and make arrangements. We'll be here for

several

11 weeks. Those of you that are from over 70, if you want

to stick

12 around and stay at a reasonable hotel, you get reasonable

13 expenses. The rest of you will have to come in. What

time

14 would be a good time to start in the morning or maybe

I'll let

15 you think about that, if you want to start either at 8:30 or

16 9:00. I don't think we'll start earlier than that. But I'll

17 let you think about it and then we'll discuss it Wednesday

18 afternoon what kind of schedule we want to work. We'll

usually

19 stop around 5:00, 5:30 or so. But again, don't go out and

get

20 any outside information. Avoid any outside information.

Don't

D-28

21 read anything about this case, don't let anybody at home

try to

22 tell you anything about this case, avoid any television.

Don't

23 see any of that. It is going to be your decision based on

what

24 you hear here, so don't have any outside influences.

With that,

25 I will go ahead and excuse you and ask you to come

back. Be

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1 down in the jury room with Ms. Wagoner at 1:30 on

Wednesday.

2 Any questions? Yes, sir?

3 JUROR: Sir, what is our role in this?

4 THE COURT: I'm just telling them, we haven't decided

5 completely yet who the jury is. So some of you are going

to be

6 here, and maybe some of you are not. So this is the group

from

7 which our jury is composed of. There are still about, what

are

8 y'all, 21 or something of you? So we haven't completed

the

9 selection yet, but you're 21, this is what's going to make

10 our jury. So please, I wanted to instruct you, don't go out

and

11 look for any outside information, let anybody at home try

12 tell you how to do your business here. It is going to be

your

13 decision based on what you hear. So if you be down in

Ms.

14 Wagoner's place where you were this morning, where

you've been

15 all day. Thank you very much. I know it's been a long

day. I

16 appreciate your time. We'll have other days where

maybe we'll

17 get to get off a little early. So starting tomorrow, already

18 you got a day off. And Wednesday, you only work half a

day. So

19 I'll see you Wednesday about 1:30 then.

20 THE COURT SECURITY OFFICER: All rise.

D-30

21 (Panel exited courtroom).

22 THE COURT: Okay. I guess I'll see y'all about --

23 Let's make it 1:00 o'clock. I told the jury 1:30, but let's

try

24 to make it about 1:00 o'clock, see what other preliminary

things

25 that we have.

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1 (Proceedings ended at 8:00 p.m.).

2 * * KK KK

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APPENDIX E

E-1

United States Constitution, Amendment XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.