Opinion
No. MO-00-CR-141.
November 9, 2004
ORDER DENYING DEFENDANT'S MOTION TO RECONSIDER PREVIOUS DENIAL OF DEFENDANT'S MOTION TO RECONSIDER DEFENDANT'S MOTION FOR NEW TRIAL
BEFORE THE COURT is Defendant Francisco Rios Balderrama's Motion to Reconsider denial of his motion for a new trial, filed October 15, 2004. Defendant Balderrama was charged with maintaining a continuing criminal enterprise involving more than 30,000 kilograms of marijuana. Balderrama was tried by a jury at a trial that began on August 20, 2002 and lasted for twenty days. On January 23, 2003, Defendant was sentenced to life in prison. The same day, Defendant moved for a new trial and the Court denied his motion.
On March 22, 2004, the Defendant moved the Court to reconsider its denial of Defendant's Motion for New Trial. On September 30, 2004, the Court again denied Defendant's request for a new trial. Defendant then filed the instant motion for further reconsideration of his motion for a new trial, citing a number of grounds which Defendant believes support his request. The Government filed a Response to this Motion to Reconsider on October 29, 2004. After due consideration of the arguments of Defendant and the Government, as well as a review of the relevant facts and record, the Court is of the opinion that Defendant's Motion to Reconsider (Docket No. 1083) should be DENIED.
DISCUSSION
I. Motion to Reconsider Denial of Motion for New TrialThe Defendant moves the Court to reconsider its earlier ruling denying Defendant's Motion to Reconsider Defendant's Motion for New Trial, asserting a number of grounds that Defendant believes support his motion for a new trial. The Court addresses each of these arguments in turn.
A. Lack of Access to Interpreter
The first ground offered by the Defendant in support of his motion to reconsider is his alleged lack of access to an interpreter during the trial. Defendant argues that the lack of an interpreter prevented him from being able to communicate personally with counsel and understand the proceedings, citing the Court Interpreters Act in support of his argument. Certainly, the statute's protections are to be liberally applied: whenever the Court finds that a defendant speaks primarily a language other than English, the statute is triggered and the Court must assign an interpreter.
United States v. Tapia, 631 F.2d 1207, 1209 (5th Cir. 1980).
In response, the Government characterizes the Defendant's claim that he lacked access to an interpreter as false and as grounds for contempt for misleading the Court. The Government points out that the Court assigned court interpreter Linda Foster to sit between Defendant and co-Defendant Quiroz to assist the two in communicating with their respective counsel at the trial. Since the Court did assign an interpreter to assist the Defendant in understanding the proceedings, his claim of error for failure to provide an interpreter is patently false. As a result, the Defendant's first grounds for reconsideration is without merit. However, the Court declines to find that the motion warrants a finding of contempt against Defendant.
B. Ineffective Assistance of Counsel Due to Lack of Interpreter
The Defendant also argues that the lack of a personal interpreter at trial made communication between him and his counsel difficult and amounted to a violation of his constitutional rights. Specifically, Defendant argues that he was deprived of liberty and property without due process of law in violation of the Fifth Amendment. He also alleges that the failure to have a personal interpreter deprived him of the right to a fair trial, to be informed of the nature and cause of the accusations against him, to confront witnesses against him, and to have assistance of counsel for his defense, in violation of the Sixth Amendment. The Defendant admits that his trial counsel, Mr. Guinn, speaks Spanish, but argues that Mr. Guinn's has only limited fluency speaking the language and was not able to assist him in understanding the events as they unfolded at trial.
The Government asserts that Defendant did have access to the court interpreter, Ms. Foster, and claims that Mr. Guinn does speak fluent Spanish. Further, the Government argues that Mr. Guinn and the other defense counsel Mr. Hurley provided competent representation at trial. The Court also notes that defense counsel was paid for at taxpayer's expense, despite Defendant's documented wealth.
Defendant's second ground for reconsideration should be analyzed under the standard for ineffective assistance of counsel. Title 28, Section 2255 of the United States Code ("Section 2255") provides relief for a federal prisoner who can show that his sentence was imposed in violation of the Constitution or the trial court made some error rising to the level of a constitutional violation. The Fifth Circuit has determined that a convicted criminal defendant may not raise an issue, whether constitutional or jurisdictional in nature, absent a showing of either cause and actual prejudice resulting from the error or that a complete miscarriage of justice will result if left unaddressed.
28 U.S.C. § 2255.
United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995); United States v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996).
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (recognizing the two most wellknown exceptions to the procedural default doctrine).
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel was set forth in Strickland v. Washington, where the Supreme Court held that "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The Strickland Court set out a two-part test to determine whether someone has been denied effective counsel at trial: "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose results are reliable." To meet this standard, the defendant must overcome the strong presumption that his counsel's conduct falls within a wide range of reasonable professional assistance. Further, in order to show prejudice, a convicted defendant has to show that, absent the alleged errors by counsel, the outcome would have been different and that counsel's performance caused the outcome to be fundamentally unfair.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
Id. at 687.
Id. at 687-91; Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995). See also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (courts are extremely deferential in scrutinizing the performance of counsel and seek to eliminate the distorting effects of hindsight); Burger v. Kemp, 483 U.S. 776, 789 (1987).
Strickland, 466 U.S. at 694; Cantu v. Collins, 967 F.2d 1006 (5th Cir. 1992).
Lockhart, 506 U.S. at 368-73 ("Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him."); Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997).
Given this rigorous standard, Defendant fails to show the Court how Mr. Guinn's representation was ineffective or any prejudice that he suffered. Indeed, as the Court has found, Defendant's contentions that he was denied an interpreter are belied by the trial record. Defendant has simply failed to show that he was unfairly prejudiced by being denied the additional interpreter he seems to believe he deserved. Thus, Defendant fails to meet the first prong of the Strickland test, which requires a showing that counsel's representation fell below an objective standard of reasonableness. This failure makes it unnecessary to examine the other prong, whether the outcome would have been different absent the alleged deficient representation. Since Defendant has not met the standard for ineffective assistance of counsel, his second claim for reconsideration and a new trial is also without merit.
Strickland, 466 U.S. at 687. See also, e.g., Kimmelman v. Morrison, 477 U.S. 367, 375 (1986).
Strickland, 466 U.S. at 700; Green v. Johnson, 116 F.3d 1115, 1116 (5th Cir. 1997).
C. Court Error Due to Improperly Admitted Evidence
Defendant also argues that the Court improperly admitted extrinsic evidence at the trial in violation of various Federal Rules of Evidence. Defendant argues that the evidence of the murders of Israel Ocon and Rigoberto Loira was extrinsic and irrelevant and that the Court should not have admitted this evidence at trial. Defendant also argues that the evidence of the murders was not similar at all to the charges in the indictment.
However, the evidence of the murders was intrinsic to the crime and this evidence was admissible to show motive, intent, and lack of mistake in Defendant's continuing drug enterprise. FED. R. CIV. P. 404(b) does not cover other bad acts that are inextricably linked to the conduct that is part of or related to the charged offense. This type of evidence is admissible to complete the story of the crime by proving the context in which the events took place. Indeed, contrary to Defendant's assertions, the murders introduced into evidence were set forth as overt acts in the indictment. The evidence showed that the murders were ordered by Defendant in retaliation for two of the victims' participation in stealing 1,000 lbs. of marijuana from Defendant's organization and then refusing to return the marijuana upon Defendant's demand. The Court properly admitted evidence of these two murders because it found that they were fundamentally related to the crimes charged. Indeed, even if it had not found the murders intrinsic to the crimes charged, the Court found that they were certainly more probative then prejudicial in order to show Defendant's motive, intent, knowledge, and lack of mistake in furthering his drug operation. Given these findings, Defendant's third basis for a new trial is similarly without merit.
FED. R. CIV. P. 404(b), Notes of Committee on the Judiciary, Senate Report No. 93-1227, 1991 Amendment; United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990) ("`Other act' evidence is `intrinsic' when the evidence of the other act and evidence of the crime charged are `inextricably intertwined' or both acts are part of a `single criminal episode' or the other acts were `necessary preliminaries' to the crime charged.").
United States v. Coleman, 78 F.3d 154 (5th Cir. 1996); United States v. Kloock, 652 F.2d 492, 494-95 (5th Cir. 1981).
D. Misconduct by Prosecution in Improperly Admitting Extrinsic Evidence
Defendant also argues that the prosecution improperly sought to consolidate a second indictment into its first indictment even though it was not a superceding indictment. Defendant characterizes this request as a "sharp tactic" by which the prosecution was able to introduce evidence of Defendant's escape from an Australian prison and the testimony of one Jaime Zavala, who testified that the conspiracy continued after Defendant was initially arrested. Defendant depicts the information about his prison escape as irrelevant and designed to prejudice the jury when taken in context with evidence of the two murders and kidnapping. Defendant also disputes the prosecution's argument that the conspiracy was ongoing at the time when he was incarcerated in Australia.
However, the Government filed its second indictment under a different cause number in order to avoid interfering with the extradition of the Defendant from Australia, which was ongoing at the time. The record shows that Defendant continued to run his drug organization from behind bars in Australia and that he attempted to escape from the Australian prison in order to continue smuggling drugs between Mexico and the United States. The Government argues that these facts were intrinsic to the conspiracy counts for which Defendant was charged in the above styled cause. The Court also notes that it is undisputed that the Government made clear its reasoning for consolidation at the time and its motion was not contradicted by Defendant. Further, the Federal Rules of Criminal Procedure allow the district court to order that separate cases be tried together "as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information."
FED. R. CRIM . PRO. 13.
Defendant fails to cite contradicting authority or case law that supports his argument that it was improper for the Government to consolidate the cases against him. Defendant further fails to adequately state a constitutional violation for prosecutorial misconduct when the Court granted the Government's legitimate motion based on verified information presented to it by the Government attorney. Finally, Defendant fails to state any prejudice that resulted from the admission of intrinsic evidence of the ongoing conspiracy that was also admissible pursuant to Rule 404(b), as set forth above. As a result, Defendant's fourth argument in support of his motion for reconsideration of his Motion for a New Trial is without merit.
E. Newly Discovered Evidence of Perjured Testimony
Defendant also moves for reconsideration arguing that newly discovered evidence mandates that a new hearing be held to determine its effect. Defendant alleges that Ms. Rosie Soles, a witness at his trial, recanted her testimony on February 6, 2004, claiming that she had committed perjury during the trial. Defendant argues that Ms. Soles's testimony placed him within a harsher punishment level under the federal sentencing guidelines.
This claim is also frivolous and unfounded. Soles testified at trial only after Defendant gave his approval to her in open court. She testified repeatedly that she would not falsely implicate the Defendant, who was her friend. However, the testimony of Ms. Soles did not impact the Defendant's sentence under the guidelines since the amount attributable to him with or without her testimony was the same: level 38. Moreover, the sentencing guideline amount was irrelevant due to the jury's conviction of Defendant for continuing criminal enterprise involving more than 30,000 kilograms of marijuana, which carries with it a mandatory life sentence. This amount was proved by evidence other than Ms. Soles's testimony, so Defendant fails to show prejudice from her testimony under the circumstances. As a result, Defendant's fifth grounds for reconsideration is also without merit.
F. Violation of the Vienna Convention
The Defendant also argues that he was denied the opportunity to contact the Mexican consulate, in violation of the Vienna Convention. Specifically, Defendant asserts that he was not given notice of his rights under the Vienna Convention. He argues that he now deserves a hearing to determine what harm he has suffered by not being informed of his rights under the Convention.
Defendant's arguments on this issue reveal a misunderstanding of the Vienna Convention and how it relates to criminal prosecutions. First, the Vienna Convention does not provide individual enforceable rights and remedies. Also, the notice goes to the consulate, not the defendant being charged. In the case at bar, there is no record that Defendant ever requested that the Mexican consulate be contacted. Indeed, it appears that the defense counsel at a pretrial hearing stated on the record that he had contacted his consulate but was denied assistance. Thus, the Defendant can show no prejudice even if the Vienna Convention was not complied with. More importantly, Defendant failed to raise this issue prior to trial and thus waived his rights in this regard. The Fifth Circuit has recently held that the very type of claim Defendant seeks to assert is meritless. As a result, the Court concludes that Defendant's sixth ground for reconsideration is similarly without merit.
See Medellin v. Dretke, 371 F.3d 270, 279-80 (5th Cir. 2004) ("A prior panel of this Court, however, held that Article 36 of the Vienna Convention does not create an individually enforceable right.").
G. Insufficiency of the Evidence
Defendant also argues that the evidence presented by the Government at trial was insufficient to prove the charges against him. Defendant states that the Government alleged in the indictment that Defendant's conspiracy dealt with more than 30,000 lbs. of marijuana, but argues that this amount was contradicted by other testimony. Specifically, Defendant argues that the testimony of Mr. Ruben Valdez Carrasco — who admitted to transporting fifty tons of marijuana — somehow contradicts the amount in the indictment. If anything, the Government in its indictment may have understated the amount of marijuana involved in the conspiracy. As Defendant himself pointed out, Mr. Carrasco testified that he had transported fifty tons (100,000 lbs.) of marijuana. Defendant's apparent argument that this amount is less than the amount stated in the indictment (30,000 kilograms, or 66,138.7 lbs) makes little sense. Defendant also apparently confuses the amounts charged by the Government, stating it alternatively as 30,000 lbs. and 30,000 kilograms. In either scenario, the record does not support a conclusion that the evidence was insufficient to find Balderrama guilty of continuing criminal enterprise. Further, the Government proved beyond a reasonable doubt at trial that Defendant's organization distributed and possessed with intent to distribute at least 68,000 kilograms of marijuana. The jury subsequently found based on this evidence that Defendant's organization actually distributed over 30,000 kilograms.
In evaluating the sufficient of the evidence, the court's standard of review is whether a rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. All credibility determinations and reasonable inferences are to be resolved in favor of the jury's verdict. Under this standard, the Defendant's claims and attempt to overturn a clearly rational jury's verdict based on overwhelming evidence of guilt is without merit. The situation is not like that in United States v. Richards, where the Fifth Circuit held that a conviction should be reversed when the evidence is essentially in balance and would circumstantially support a theory of either guilt or innocence. The evidence here was not in balance and pointed overwhelmingly toward the guilt of Defendant, as properly found by the jury at trial. As a result, Defendant's seventh ground for reconsideration is also without merit.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Crow, 164 F.3d 229, 237 (5th Cir. 1999). The Court views the evidence in the light most favorable to the Government. Id.
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Doke, 171 F.3d 240, 242 (5th Cir. 1999); United States v. Harvard, 103 F.3d 412, 421 (5th Cir. 1997).
United States v. Richards, 204 F.3d 177, 206 (5th Cir. 2000).
H. Jury Selection
The Defendant also raises as grounds for his motion to reconsider the jury selection process in the Midland Division of the Western District of Texas that was operating when the jury in this matter was selected. Defendant argues that the Midland Division selection process excludes Hispanics, in violation of the Sixth Amendment and the Jury Selection and Service Act.
The Sixth Amendment guarantees a criminal defendant the right to a trial by a jury selection from a fair cross-section of the community. Thus, jury pools or panels from which jurors are drawn must not systematically exclude distinctive groups in the community and fail in this regard to be reasonably representative of the community. The Jury Selection and Service Act provides that litigants in federal courts are entitled to juries selected at random from a fair cross section of the community. Defendant submits that during the trial evidence and expert testimony were introduced to show that in the Midland area, the population of jury-eligible persons was 28.22 percent Hispanic, while the wheel from which juries were chosen was only 17 percent Hispanic. Defendant alleges that this disparity violated his constitutional and statutory rights just described.
Taylor v. Louisiana, 419 U.S. 522 (1975).
Id. at 538.
However, this Court has faced his exact issue previously and has already ruled on multiple occasions that jury selection in this case comported with the Jury Selection and Service Act. In any event, the Sixth Amendment and the federal jury selection statute both require that the jury venire from which the actual jury is selected represents a fair cross-section of the community. The jury ultimately seated need not represent such a cross-section. The test used by courts to determine whether there has been a prima facie violation of the constitutional and statutory "fair cross section" requirement is the "absolute disparity" test. In Olaniyi-Oke, the Fifth Circuit confronted a situation similar to that before this Court: the defendant had no evidence with which to challenge the selection process, which is what the relevant provision of the jury selection act provides. Rather, Mr. Olaniyi-Oke — like Mr. Balderrama here — sought to investigate the jury selection process solely because his venire had "too few" minorities.
Taylor, 419 U.S. at 527; Holland v. Illinois, 439 U.S. 474, 480-84 (1990).
United States v. Olaniyi-Oke, 199 F.3d 767, 769 (5th Cir. 1999).
Olaniyi-Oke, 199 F.3d at 772.
However, to obtain relief under the Jury Selection Act, the defendant must prove a "substantial failure to follow the Act's provisions, a substantial failure being one that destroys the random nature or objectivity of the selection process." Olaniyi-Oke, like Mr. Balderrama, failed to understand the nature of statistics. In a truly random system, minorities will be underrepresented on some panels and overrepresented on others; this is the essential nature of a random system. Requiring that every venire match the exact proportion of minorities in the community would fail to be random given the size of the sample. Further, a jury venire that is made up of too many Caucasian members is simply not a cognizable harm under the Jury Act: "The happenstance of disproportionately white jury is simply not enough to prevail under the Act."
Id.
Id.
Id. (citing United States v. McKinney, 53 F.3d 664, 671 (5th Cir. 1995)).
Olaniyi-Oke, 199 F.3d at 772 (citing United States v. Hemmingson, 158 F.3d 347, 358-59 (5th Cir. 1998)).
The Defendant fails to show how the Midland Division's process for selecting jury venires and empaneling juries violates the Jury Selection and Service Act. In this case, the Jury Administrator for the Western District of Texas filed an affidavit explaining that the master and qualified jury wheels are drawn at random from voter registrations. The affidavit showed that the plan for selecting grand and petit juries in the Western District used in this matter was not susceptible to systematic exclusion of any distinctive group. The administrator also submitted evidence that the 2000 Census revealed that while 27 percent of the population in the Midland Division was Hispanic, the percent qualified for jury service was only 18.2 percent, leaving an absolute disparity of 8.8 percent. Courts addressing this issue have uniformly held that an absolute disparity of less than 10 percent is constitutional and falls well short of systematic exclusion.
See Swain v. Alabama, 380 U.S. 202, 208-09 (1965) (10 percent absolute disparity survives constitutional scrutiny); Newberry v. Willis, 642 F.2d 890 (5th Cir. 1981) (6.5 percent absolute disparity negligible); United States v. Weaver, 267 F.3d 231 (3rd Cir. 2001) (collecting cases on this issue).
Viewed in light of the clear standards and the facts of this case, Defendant's arguments that he was denied a fair trial based upon the alleged systematic exclusion of Hispanics from the jury venire are wholly without merit. As a result, the Court finds that there has been neither an underrepresentation of Hispanics in the jury venire or an underrepresentation stemming from a systematic exclusion of Hispanics in the jury selection process. For this reason, it finds that Defendant's eighth ground for reconsideration of his motion for new trial is also without merit.
I. Court Error in Sentencing
Finally, the Defendant argues that he was denied a fair trial because the Court sentenced him to two life sentences, in alleged violation of the Supreme Court's holding in United States v. Rutledge. In that case, the Supreme Court held that conspiracy is a lesser included offense of continuing criminal enterprise. However, the Court has never held, either in Rutledge or any other case, that conspiracy to import a controlled substance is a lesser included offense of continuing criminal enterprise. The Court sentenced Defendant correctly and misleading citations to Supreme Court authority will not change that outcome. Neither will they move the Court to reconsider for a second time a defendant's request for a new trial. This final ground, like the others, is completely without merit.
See 517 U.S. 292, 307 (1996).
Despite the frivolous and repetitive nature of Defendant's grounds in support of his motion to reconsider the Court's earlier denial of his motion for a new trial, the Court will decline the Government's invitation to hold Defendant in contempt at this time. However, in the event the Court is presented with a further motion from Defendant that seeks to replow this tired ground yet again, it will not hesitate to explore a range of potential sanctions against defense counsel.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant's Motion to Reconsider again the Court's denial of his motion for a new trial is without merit. It is therefore ORDERED that Defendant's Motion to Reconsider its earlier rulings is hereby DENIED.