Opposition — Rosales-Lopez v. United States

No. 79-6624

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

HUMBERTO ROSALES-LOPEZ, PETITIONER

Ve

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN F. DePUE

Attorney

Devartment of Justice

Washington, D.C. 20530

(202) 633-2217

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-6624

HUMBERTO ROSALES-LOPEZ, PETITIONER

V.

‘ UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the trial judge erred in refusing to

question the jurors concerning possible bias against persons

of Mexican descent.

2. Whether it was proper for a substitute Judge, who

did not preside at the trial, to impose sentence upon

petitioner.

th tt A

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is

reported at 617 F.2d 1349.

JURISDICTION

The judgment of the court of appeals was entered on

March 20, 1980. A petition for rehearing was denied on May

12, 1980 (Pet. App. B), and the petition for a writ of |

certiorari was filed on May 20, 1980. The jurisdiction of

this Court is ‘invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of California, petitioner

was convicted on one count of conspiracy to conceal, harbor,

Shield, and illegally transport aliens, in violation of:

18 U.S.C. 371 (Count 1); three counts of transporting

illegal aliens, in violation of 8 U.S.C. 1324(a) (2)

(Counts 2-4); and three counts of concealing, harboring,

and shielding aliens, in violation of 8 J.S.0. 132H(a) (3)

(Counts 5-7). He was sentenced to consecutive terms of

eighteen months' imprisonment on the conspiracy count and

five years’ imprisonment on each of the substantive counts;

however, the sentences on the substantive counts (Counts

2-7) were.suspended in favor of a term of five years’

probation to commence following petitioner's release from

custody. The court of appeals affirmed (Pet. App. A).

As summarized by the court below (Pet. App. A,

2397-2398), the evidence showed that, during the night of

December 10-11, 1978, three aliens, led by an unidentified

guide, left Tijuana, Mexico, on foot and unlawfully crossed

the international border into the United States. Following

the crossing, the guide transported the aliens by automobile

to the Imperial Beach residence of co-defendant Virginia

Bowling, where petitioner admitted them into the garaze.

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Thereafter, petitioner concealed the aliens and their guide

in the trunk of an automobile. Bowling then drove the

vehicle containing the illegal aliens north on Interstate

Yive through the San Clemente checkpoint while petitioner

followed in another vehicle. Once beyond the checkpoint, .

Bowling and petitioner exchanged automobiles, and the guide

drove the vehicle containing the concealed aliens to Los

Angeles. Upon arriving in Los Angeles, the aliens were

released from the trunk, and petitioner instructed them to

enter an apartment where they were met by co-defendants

Falcon-Zavala and Flores. At approximately noon on December

11, Flores departed in an automobile with two of the aliens,

and petitioner, Falcon-Zavala, and the third alien left the

apartment in another automobile. Shortly thereafter, agents

of the Immigration and Naturalization Service, who had

followed petitioner from the Bowling residence to Los

Angeles and had maintained Surveillance of the apartment,

Stopped the two automobiles and arrested petitioner and his

cohorts.

ARGUMENT

1. Petitioner is a resident alien of Mexican descent.

Relying on Ristaino v. Ross, 424 U.S. 589 (1976)

and Aldridge v. United States, 283 U.S. 308 (1931), he

contends (Pet. 3-5) that the trial court committed

reversible error when it refused to ask Prospective jurors

whether they would "consider the race or “Nexican descent of

[petitioner] in (their) evaluation of this case" (R. Doc. 11

at 2; Tr. 157; Pet. App. 2399, n.1). This clain is

unfounded,

In Ristaino, a black defendant was convictel in state

court of assaulting a white Security guard. Although thts

Court ruled that the state trial judge was not constitu-

tionally required to conduct voir dire questioning Speci-

fically directed to uncovering racial prejudice, the Court

Stated that, in the exercise of its supervisory power, it.

would have required a federal se xirt under the same

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circumstances to inquire into racial prejudice at the

request of the defense (424 U.S. at 597 n.9). In Aldridge

v¥. United States, Supra, the Court exercised its Supervisory

power in reversing the conviction of a black defendant

sentenced to death for the murder of a white police officer

where the federal trial court had refused the defendant's

request that the jurors be questioned about racial

prejudice. See Ristaino v. Ross, supra, 424 U.S. at 598

n.10. ‘

Neither Ristaino nor Aldridge requires reversal here.

As the court of appeals properly concluded (Pet. App. A,

2400), "the facts of Ristaino presented a greater likelihood

of prejudice than do the facts of the present case," and

petitioner's Mexican heritage therefore "did not, in and of

itself, require the court below to pose a question on racial

prejudice to the venire." Ristaino and Aldridge involved

interracial crimes of violence against a security guard and

&@ police officer... The instant case, on the other hand,

involved a victimless crine, and there is no evidence that

the trial was charged with any racial or ethnic overtones.

See United States v. Polk, 550 7.2a 1265, 1267 (10th Cir.),

cert. denied, 434 U.S. 838 (1977); United States v.

Perez-Martinez, 525 F.2d 365, 367 (9th Cir. 1975).

The greatest potential for prejudice at petitioner's

trial resulted from the allegation that petitioner harbored

and transported illegal aliens in a locality where such

activities are a particularly sensitive tssue. However, the

trial judge not only spausives Senerally whether the members

of the venire knew of any reason why they could not sit as

fair and impartial jurors (Tr. 151), but Specifically asked

whether their attitudes toward illegal aliens would affect

their impartiality (Tr. 146-17), and two jurors were

excused on that basis. Thus, petitioner was adequately

peotected against any juror dias arising from the nature of

the charges against him.

—

Nor Goes the decision below conflict with those

decisions which require inquiry into possible racial

prejudice whenever the accused 4s a member of a racial

minority. See, e.g., United States v. Williams, 612 F.2d

735, 736-737 (3d Cir. 1979), cert. denied No. 79-6109 (Mar.

17, 1980); United States v. Bowles, 574 F.2d 970, 972-973

(8th Cir. 1978); see also United States v. Bell, 573 F.2a

1040, 1042-1043 (8th Cir. 1978). V/ Each of these

cases involved an ascertainable racial minority, such as

blacks. This, however, is not such a case; petitioner's

proffered bias inquiry was not based upon the fact that he

was a member of a minority race but upon his Mexican

ancestry. As the court noted in United States v.

Perez-Martinez, supra, 525 F.2d at 368 & n.4, national

Origin is fundamentally different from race, and there is

no reason to treat these two concepts alike for purposes of

reviewing a trial court's conduct of the jury voir dire.

Thus, while a number of courts have held that a defendant

is entitled to an inquiry concerning prejudice against

members of his race without demonstration of special

circumstances, these decisions do not necessarily mandate

queries concerning biases on account of a defendant's ethnic

background or national Origin, and they are not inconsistent

with the decision of the court below.

The purpose of the voir dirs examination is to preserve

the right to trial by a@ competent and impartial jury. The

Scope of examination necessary to achieve this purpose

rests in the broad discretion of the trial judge, as this

Court has repeatedly held. See Ristaino Ve Ross, supra,’ 424

U.S. at 594-598; Aldridge v. United States, Supra, 283 U.S.

at 319; see also Ham v. South Carolina, 409 1.8. 524,

327-528 (1973); Fed. R. Crim. P. 24(a). Petitioner has

1/ Compare United States v. Polk, supra; United States

V. Perez-ltartinez, Supra; Unitec States v. Walker, 49] F.2d

236, 239 (9th Cir.), cert. denied, 4146 °.8.°990 (1974).°

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failed to demonstrate an abuse of the trial court's

discretion in the circumstances presented here.

2. Petitioner was tried before Judge Howard F,

Corcoran, a visiting judge from the United States District

Court for the District of Columbia. After the guilty

verdict was returned, Judge Corcoran refused to impose

sentence upon petitioner until a presentence report was

completed (Tr. 594-598). Judge Corcoran's temporary

assignment ended before the completion of the presentence

report, and petitioner was sentenced by Judge Gordon

Thompson, of the Southern District of California. This

procedure was wholly proper, petitioner's contrary

contention (Pet. 5-8) notwithstanding.

On its face, Rule 25(b), Fed. R. Crim. ?., unambig-

uously provides that "[iJf by reason of absence, death,

sickness or other disability the judge before whom the

defendant has been tried is unable to perform the duties to

be performed by the court after a verdict or finding of

guilt, any other Judge regularly sitting in or assigned to

the court may perform those duties * * #*," 2/ This

rule authorizes a district Judge who did not preside at

trial to impose sentence when the presiding Judge. is unable

to perform that duty due to absence. See, e.g., United

States v. Ortiz, 603 F.2d 76, 81 (9th Cir. 1979), cert.

denied, No. 79-5513 (Jan. 7, 1980); United States v.

McCallie, 554 F.2d 770, 773-774 (6th Cir. 1977) (collecting

cases). As the court below observed (Pet. App. A, 2403),

Judge Thompson was familiar with this case because he had

read the presentence report and had presided over certain

pretrial matters; accordingly, Judge Thompson was fully

2/ Nothing in the language of Rule 25(b) Supports

petitioner's suggestion (Pet. 8) that it ts impermissible

for a judge, other than the judge who presided over the

trial, to impose sentence when the defendant objects to such

a substitution. ; :

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“qualified to impose sentence upon petitioner. More-

over, the sentence itself can hardly be viewed as an abuse

of discretion, since petitioner was sentenced to 18 months!

imprisonment on the conspiracy count, the sentences on the

Six substantive counts having been suspended in favor of

five years' probation (Sent. Tr. G-I). 3/

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN F. DePUE

Attorney

JULY 1980

3/_ Petitioner mistakenly contends (Pet. 7) that the

decision of the court below conflicts with United States v.

Bowser, 497 F.2d 1017 (4th Cir.) cert. denied, 423 U.S. 997

(1974). In Bowser, the court acknowledged that a judge

other than the judge who presided over the trial is

empowered to impose sentence. However, it remanded the case

for resentencing by the judge who initially imposed sentence

because of his unexplained imposition of the maximum

Sentence despite the absence of any aggravating factors. In

those circumstances, the court of appeals concluded that the

Sentencing judge may have failed to exercise any discretion.

Id. at 1019-1020. Here, by contrast, the sentencing judge,

who was faniliar with the case, Suspended all except

18 months of the sentence of imprisonment, even though

petitioner could have received consecutive sentences on all

seven counts aggregating 35 years' imprisonment.

Finally, there is no merit to petitioner's contention

(Pet. 6) that the sentence he received was impermissibly

disproportionate to the sentences imposed upon his co-

defendants. While it is true that co-defendants

Falcon-Zavala and Bowling received more lenient sentences

than petitioner, they each pleaded guilty to one count and

cooperated by testifying for the Sovernment at petitioner's

trial. In contrast, petitioner was convicted on all seven

counts of the indictment. Moreover, petitioner's attempt to

minimize his role in the alien smuggling ring is misleading.

co-defendant Bowling testified that pursuant to an

arrangement she had with petitioner, she and petitioner

would split the money equally after petitioner had paid the

guide (Tr. 369). Co-defendant Falcon-Zavala testified that

while he was merely a driver receiving $7 per person for

transporting tliegal aliens (Tr. 423, 4WNH), petitioner some-

Lines acted as a guide, and collected payments fron the

faniltes of the ‘llesal altens (Tr, 434%, 451-452),

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