United States of America, and v. Doloras Contreras, and Cross-Appellee
Docket: 95-2070 & 95-2126
Court: Court of Appeals for the Tenth Circuit; March 11, 1997; Federal Appellate Court
Doloras Contreras was convicted in the United States District Court for the District of New Mexico on four counts stemming from a multi-defendant indictment related to drug trafficking and money laundering. The court sentenced her to 120 months of imprisonment, departing downward from the United States Sentencing Guidelines. Contreras is appealing her conviction, while the United States is appealing the downward departure in her sentencing.
The underlying case involved Gabriel Rodriguez-Aguirre, who managed a family organization that distributed significant quantities of marijuana and cocaine from 1984 to 1992. Contreras, Aguirre's daughter, used her residence in Phoenix, Arizona, for storing illegal drugs and proceeds from sales. She was implicated in the conspiracy involving over 3,000 pounds of cocaine and laundering $365,400 in drug-derived funds.
In addition to her criminal case, Contreras was a named claimant in two civil forfeiture actions initiated by the United States in 1992 and 1993, which she did not contest, leading to default judgments against her. The criminal indictment against her was filed on October 20, 1992, charging her with conspiracy to distribute marijuana and multiple counts of money laundering related to various asset purchases. Contreras pleaded not guilty and proceeded to trial with co-defendants in January 1994.
The trial of Ms. Contreras and her co-defendants spanned six months, making it the longest federal criminal trial in the District of New Mexico. The jury deliberated for over six weeks but could not reach a verdict, leading the judge to declare a mistrial, which was unopposed by either party. In August 1994, a superseding indictment was filed against Ms. Contreras and nine co-defendants, adding new charges, including conspiracy to possess and distribute cocaine, and receiving income from drug distribution. Ms. Contreras's motion to dismiss the indictment due to claims of vindictive prosecution was denied by the court.
In November and December 1994, Ms. Contreras was retried, with jury selection conducted from a pool of approximately 250 jurors randomly chosen from voter registration lists. The district judge excused 132 jurors after reviewing their questionnaires, allowing only 115 to report for service. Six days before the trial, defense counsel received copies of the juror questionnaires and were informed of the excused jurors.
On the first day of trial, defendants filed motions to stay proceedings and to quash the jury venire, arguing that the jury pool misrepresented the ethnic demographics of the District, claiming underrepresentation of Hispanic and American Indian jurors. The defense sought a stay to investigate the jurors' ethnic backgrounds and referenced case law regarding juror exclusions. An evidentiary hearing revealed that the jury panel was selected randomly, and the jury administrator could not confirm the ethnicity of excused or reporting jurors. The court clarified that it had not considered juror surnames or ethnicity when excusing jurors, noting that the juror questionnaires did not require ethnic identification.
The district court denied the defendants' motions to stay proceedings and to quash the jury venire but permitted them to supplement the record regarding the racial composition of the District of New Mexico and the Roswell Division within ten days post-trial. None of the defendants took this opportunity. The trial lasted about one month, concluding with a jury verdict against Ms. Contreras on four counts, including conspiracy and money laundering, on December 15, 1994. At sentencing, the court accepted the presentence report findings, establishing a base offense level of 38 and a guideline range of 235 to 293 months. However, recognizing a significant disparity with co-defendant Paula Denogean’s sentence, the court granted a downward departure, sentencing Ms. Contreras to 120 months based on an adjusted level of 31 and a range of 108-135 months.
Ms. Contreras' appeal presents four issues: (1) alleged violations of the Fifth Amendment's double jeopardy protection, (2) claims of prosecutorial vindictiveness regarding a superseding indictment, (3) sufficiency of evidence for her money laundering conviction, and (4) potential violations of her constitutional rights during jury selection. The government cross-appeals on whether the downward departure to address sentencing disparity was erroneous. Ms. Contreras argues the government's appeal is untimely.
In her double jeopardy claim, Ms. Contreras asserts that the judicial forfeiture proceedings prior to her criminal convictions adjudicated her culpability, arguing that the default judgment created jeopardy, preventing the U.S. from pursuing criminal charges based on the same conduct. The appeal court, under Fed. R. Crim. P. 52(b), has discretion to review unraised errors if they are plain and affect substantial rights, and it indicates that if her double jeopardy claim is valid, it constitutes a plain error affecting the integrity of the judicial process, warranting review.
In United States v. Ursery, the Supreme Court addressed whether civil forfeiture constitutes punishment under the Fifth Amendment's Double Jeopardy Clause. The case involved the government's civil forfeiture of Guy Ursery's home, linked to marijuana distribution, alongside a criminal charge for manufacturing marijuana. The Sixth Circuit reversed Ursery's criminal conviction, citing double jeopardy concerns. The Supreme Court granted certiorari and concluded that civil forfeitures are remedial and not punitive, allowing the government to pursue both civil and criminal actions without violating double jeopardy. Consequently, Ms. Contreras, who faced civil forfeiture proceedings without contesting them, was not placed in jeopardy, meaning her subsequent criminal convictions did not violate the Double Jeopardy Clause.
Additionally, Ms. Contreras claimed prosecutorial vindictiveness regarding a superseding indictment that expanded charges against her after a mistrial. The Supreme Court noted that punitive motivations in prosecutorial actions do not inherently violate constitutional rights, distinguishing between permissible punishment for lawful conduct and due process violations. The court emphasized that a defendant's failure to contest civil forfeiture proceedings undermines double jeopardy claims, as seen in the related case of Paula Denogean, where the failure to challenge the forfeiture was detrimental to her appeal. Thus, the court reaffirmed that the absence of jeopardy in civil actions precludes claims of double jeopardy in subsequent criminal prosecutions.
A prosecutor can penalize a defendant for law violations but cannot punish them for exercising protected rights. In assessing claims of prosecutorial vindictiveness, the key question is whether there is a reasonable likelihood that prosecutorial actions were driven by hostility or punitive intent due to the defendant exercising a legal right. Claims of vindictive prosecution require the defendant to demonstrate either actual vindictiveness or a reasonable likelihood of it, which then triggers a presumption of vindictiveness. If established, the burden shifts to the prosecution to provide legitimate reasons for their decisions. If the defendant fails to prove vindictiveness, the court need not examine the prosecution’s justification.
In the case at hand, Ms. Contreras argues that the circumstances of charge enhancements create a reasonable likelihood of vindictiveness, but this is rejected. Modifications in charges following a mistrial for neutral reasons, like a hung jury, do not typically raise vindictiveness presumption, as there’s no reason for the prosecutor to blame the defendant for the mistrial. The Supreme Court has not adopted strict rules regarding prosecutorial vindictiveness, so the evaluation depends on the totality of circumstances. An example is provided wherein additional charges were filed after a defendant asserted his speedy trial rights; the court concluded there was no reasonable likelihood of vindictiveness after applying a totality of circumstances analysis.
The prosecutor's decision to increase charges against Ms. Contreras occurred after the district court declared a mistrial in her initial trial due to the jury's inability to reach a verdict, with no objections raised by either party. Following this, the government faced negative media coverage and subsequently filed a superseding indictment adding new cocaine charges, which were known to the government prior to the first trial. The court found that the circumstances did not create a presumption of prosecutorial vindictiveness, noting that the indictment followed a mistrial for neutral reasons and was not a response to media backlash. Comparisons were made to the Doran case, where similar circumstances did not lead to a presumption of vindictiveness.
Additionally, Ms. Contreras argued that the evidence was insufficient to support her conviction for money laundering under 18 U.S.C. § 1956(a)(1)(B)(i), which requires proof of four elements: engaging in a financial transaction; knowledge that the property represented proceeds of unlawful activities; the property being proceeds of such activities; and intent to conceal the nature or source of those proceeds. The jury found her guilty of purchasing a Nissan Pathfinder, but on appeal, she contended that the government failed to prove her intent to conceal, arguing that the transaction merely represented spending money rather than an effort to disguise the source of the funds.
Congress intended 18 U.S.C.A. § 1956(a)(1)(B)(i) to target money laundering, specifically transactions aimed at disguising the connection between purchased items and illegal proceeds, rather than merely punishing money spending. A conviction does not require proof of the launderer's intent to hide their identity; the statute broadly addresses transactions meant to conceal any aspect of the proceeds from unlawful activities. Distinguishing money laundering from ordinary spending can be challenging, and courts consider various evidence types to determine intent, including statements indicating concealment, transaction secrecy, structuring to avoid scrutiny, irregular transaction features, and expert testimony on criminal practices.
In the case of Ms. Contreras, evidence showed she bought a Nissan Pathfinder with a $25,000 Bancomer check that had unusual characteristics, such as lacking a remitter and obscuring the funds' source. This led to a reasonable jury concluding she intended to disguise the funds' illicit origins, supporting her money laundering conviction.
Regarding jury selection, Ms. Contreras claimed that the district court's decision to excuse over half of the jury panel before voir dire violated the Jury Selection and Service Act and her constitutional rights. The court noted that while judges possess broad discretion in assessing juror competency, statutory interpretations of the Act are reviewed de novo to determine compliance with its provisions.
The Jury Selection and Service Act of 1968 mandates random selection of grand and petit jurors from a representative community cross-section, ensuring all qualified citizens can be considered for jury service. Each U.S. District Court must implement a written plan for this selection process, which allows flexibility to accommodate local conditions while adhering to a general procedural framework. Section 1866(c) outlines conditions under which a qualified juror may be removed, specifying that jurors cannot be excluded unless justified by certain criteria, including undue hardship, inability to serve impartially, or potential disruption. A challenge to the jury selection process must be initiated before voir dire or within seven days of discovering grounds for the challenge, accompanied by a sworn statement of facts indicating a substantial failure to comply with the Act. Strict adherence to these procedural requirements is necessary for the district court to address any noncompliance before trial. In the current case, the United States argues that Ms. Contreras' challenge is invalid due to the lack of a sworn affidavit supporting the motions against the jury selection process. Ms. Contreras acknowledges this omission but asserts that the trial testimonies provided an adequate substitute for the affidavit requirement.
Courts have rigorously enforced the procedural mandates of the Jury Selection and Service Act, especially the requirement for a sworn statement when challenging jury selection. In Kennedy, the Fifth Circuit determined that the district court's emergency use of volunteer jurors significantly violated the Act, but upheld the defendant's conviction because he did not submit a sworn statement with his challenge. The court emphasized that Congress intended strict adherence to these procedural rules, stating that substantial violations warrant remedies that do not depend on showing prejudice. Similarly, in Cooper, the Tenth Circuit rejected a defendant's claim regarding jury selection fairness due to the absence of a sworn affidavit, reiterating that a sworn statement is necessary to substantiate claims of non-compliance with the Act. Other cases, such as Maldonado, LaChance, and Wellington, also affirmed convictions based on the defendants' failure to file sworn statements. Moreover, even when defendants submitted sworn statements, courts have dismissed claims if the statements were insufficient, as seen in Paradies, where the Eleventh Circuit ruled against a challenge due to the lack of supporting facts in the affidavit. Overall, strict compliance with the sworn statement requirement is essential for raising objections under the Jury Selection and Service Act.
Ms. Contreras argues that her lack of a sworn statement does not invalidate her claim under the Jury Selection and Service Act (JSSA), citing the Third Circuit's decision in *Calabrese*. In *Calabrese*, the district court excluded jurors prior to voir dire due to their connections with a defendant, and although the defendants did not file a sworn statement, the Third Circuit accepted the clerk's sworn testimony as sufficient to meet the requirements of 28 U.S.C. § 1867(d). The court noted that the clerk's testimony provided undisputed facts necessary for the district court's decision. However, Ms. Contreras has not presented any additional case law supporting her assertion, and independent research failed to reveal other courts recognizing an exception to the sworn statement requirement.
The overwhelming authority, including interpretations from various circuit courts, emphasizes strict compliance with the sworn statement requirement under § 1867(d). The document asserts that Ms. Contreras' failure to file a sworn statement precludes her challenge to the jury selection process, reinforcing that Congress intended these procedures to be the sole means of contesting jury selection under the JSSA. Other circuits have dismissed claims for insufficient sworn statements, highlighting the strict interpretation of the requirement. Thus, based on the established legal precedent, Ms. Contreras' argument is rejected.
The defendants relied on the sworn testimony of the court clerk regarding the exclusions in jury selection, which the Third Circuit found met the sworn statement requirement. The clerk’s testimony provided undisputed facts sufficient for the district court’s decision, thereby complying with the Jury Selection and Service Act's procedural requirements. The Third Circuit is unique in recognizing a substitute for the sworn affidavit requirement; however, Ms. Contreras failed to cite any additional case law to support her position, and independent research revealed no other exceptions. Consequently, the court concluded that the Third Circuit's exception in Calabrese contradicts the prevailing authority, thus rejecting it. According to 28 U.S.C. § 1867(d), any motion challenging jury selection must include a sworn statement of facts demonstrating a substantial failure to comply with the Act, which Congress stipulated as the exclusive method for such challenges. Most circuit courts, including the Tenth Circuit, have interpreted the sworn statement requirement strictly. Ms. Contreras' claim under the Jury Selection and Service Act is therefore dismissed due to the defendants' lack of a sworn affidavit accompanying their motions.
Regarding the Sixth Amendment claim, Ms. Contreras contends that the district court's pre-voir dire excusal of a significant portion of the jury panel led to an underrepresentation of Hispanics, violating her rights. The court reviews the district court's factual finding on the jury's representation for clear error. The Supreme Court has established that selecting a jury from a representative cross-section of the community is essential to the Sixth Amendment right to a jury trial. While a jury does not need to mirror the community, it must not systematically exclude distinct groups. To prove a prima facie violation of this right, a defendant must demonstrate: (1) the group in question is distinctive; (2) its representation in jury venires is not proportionate to its community presence; and (3) the underrepresentation is due to systematic exclusion in the jury-selection process.
Ms. Contreras's "fair-cross-section" claim fails because the defendants did not meet the necessary criteria to establish a prima facie case. Specifically, they did not provide evidence demonstrating the percentage of the community represented by the allegedly underrepresented group, which is essential under the Sixth Amendment. After the district court denied a motion to quash the jury panel, it allowed the defendants to submit evidence regarding the racial composition of the jury pool, but the defendants failed to do so. As a result, the court could not assess whether the number of Hispanics on the jury panel was proportionate to their population in the New Mexico community. Even if evidence suggested underrepresentation, Ms. Contreras did not demonstrate systematic exclusion of Hispanics from the jury selection process, as the district judge had not considered jurors' last names prior to voir dire, and juror questionnaires did not ask for ethnicity.
Regarding her equal protection claim, Ms. Contreras must establish that she is part of a group subject to discriminatory treatment, that this group was substantially underrepresented in the venire, and that the selection process allowed for discrimination. The lack of evidence about the Hispanic population in New Mexico hinders her ability to prove substantial underrepresentation. Additionally, the jury selection process did not appear to provide opportunities for discrimination, as ethnicity was not included in the juror questionnaires, and the judge did not focus on jurors' last names.
Lastly, Ms. Contreras's claim that the district court violated her Sixth Amendment right to an impartial jury by excusing jurors without conducting voir dire was raised for the first time on appeal.
Arguments raised for the first time on appeal are generally not considered, but the court addresses Ms. Contreras' claim regarding an impartial jury. Voir dire is essential for ensuring a defendant's Sixth Amendment right to an impartial jury; however, there is no established authority indicating that pre-voir dire juror dismissals violate this right. The Jury Selection and Service Act allows for juror exclusion prior to voir dire for reasons such as hardship or bias. Other circuit courts have upheld similar pre-voir dire dismissals.
In Ms. Contreras' case, most dismissed jurors were eligible for excusal due to hardship or bias, and the court did not abuse its discretion in their dismissal. Two jurors had questionable dismissals, but there is no evidence they were excused due to ethnicity; one juror had a potential connection to a defendant, and the other cited confidential reasons for her inability to serve. Even if the trial court's actions were improper, the error was not severe enough to infringe upon Ms. Contreras' right to an impartial jury.
Regarding the United States' appeal, the government argues that the trial court improperly reduced Ms. Contreras' sentence to address perceived disparities with her co-defendant, Paula Denogean. In response, Ms. Contreras filed a motion to dismiss the appeal, claiming the government's notice was untimely. The court reviews this motion to determine jurisdiction, noting that under Fed. R.App. P. 4(b), the United States filed its notice within the required thirty-day period following the district court's order dated May 19, 1995. Consequently, Ms. Contreras' motion to dismiss is denied. At sentencing, the trial court assessed Ms. Contreras with a base offense level of 38 and a criminal history category of I, establishing a guideline range of 235 to 293 months for her sentence.
The court recognized that the sentencing guideline range for Ms. Contreras was significantly higher than that for her co-defendant, Paula Denogean, who had comparable or greater culpability. To prevent unwarranted sentence disparities, the court granted Ms. Contreras a downward departure, imposing a 120-month sentence based on an adjusted offense level of 31, with a range of 108-135 months. The United States contends that this downward departure was unjustified, arguing that Ms. Contreras and Ms. Denogean are not similarly situated. The Supreme Court case Koon v. United States established that appellate courts review district court decisions on guideline departures under an abuse of discretion standard, acknowledging the district court's unique experience in such matters. However, legal questions regarding permissible departure factors do not receive such deference. The district court is required to consider the necessity of avoiding unwarranted disparities among similarly situated defendants and must impose sentences within the guideline range unless there are unconsidered aggravating or mitigating circumstances. A proper departure requires distinguishing factors that set the case apart from typical offenses, as the guidelines aim to minimize disparities in sentencing. The referenced case, Garza, illustrates that differences in guideline ranges alone do not justify a departure.
The district court determined that Mr. Garza and his co-defendant had similar criminal records and conduct, leading to a conclusion that significant sentence disparity warranted equalization. On appeal, it was affirmed that while similar offenders engaging in similar conduct should receive equivalent sentences, disparities are permissible if justified by the record's facts. The appeal analyzed whether Mr. Garza and his co-defendant were indeed similarly situated, ultimately finding no evidence of similarity in their participation, culpability, or criminal conduct, and reversing the district court's decision to reduce the sentence.
In a related case, Ms. Contreras was convicted of multiple serious charges, while Ms. Denogean pled guilty to a lesser offense. The court found they were not "similarly situated" due to the nature and number of their respective convictions. Ms. Contreras argued that the court should consider their roles in the offenses instead of the differences in their charges, claiming she was willing to plead guilty but was denied a plea agreement due to her father's circumstances. However, the court reiterated that plea negotiations fall within the prosecutorial discretion, and a judge cannot alter a sentence based solely on the disparity caused by plea bargaining decisions. Thus, the trial judge improperly reduced Ms. Contreras's sentence based on the lighter sentence received by Ms. Denogean, who faced different charges.
Any contrary rule would undermine the United States Attorney's broad prosecutorial discretion and could dissuade the government from offering plea bargains in multi-defendant cases, which is contrary to judicial economy. The trial judge incorrectly reduced Ms. Contreras' sentence based on a co-defendant's plea to a lesser charge. Consequently, the district court's decision to grant a downward departure is reversed, and the case is remanded for resentencing aligned with this opinion, while affirming the judgment in other respects.
Ms. Contreras was involved with Amador Investors, receiving a salary and using company credit for personal expenses despite not working there. All defendants, including Ms. Contreras, adopted motions from their co-defendants. Ms. Denogean entered a plea agreement admitting to possession with intent to distribute marijuana and received an 84-month sentence. Although Ms. Contreras did not initially raise the jury selection issue, she later moved to adopt her co-defendants' arguments. Her claim of double jeopardy lacked proper record support, and the court reviewed it for plain error.
Regarding prosecutorial vindictiveness, the evidence was insufficient to establish a presumption of vindictiveness when charges were added after asserting speedy trial rights. Additionally, Ms. Contreras suggested an equal protection violation based on a reduced number of Hispanic jurors after the judge's excusals, noting that 16.67% of excused jurors were Hispanic.
The jury venire consisted of 115 members, of which only 13 (11.3%) were Hispanic. The disparity between the percentage of Hispanics excused before voir dire and those in the jury venire is not statistically significant, as established by precedent in United States v. Test. Under 28 U.S.C. § 1866(c), jurors may be excused for reasons including undue hardship, inability to be impartial, peremptory challenge, good cause, or by court determination. However, clause (5) of § 1866(c) allows for exclusion only in open court. While it remains uncertain whether a trial court can dismiss a juror prior to voir dire due to acquaintance with a defendant, some circuit courts affirm this discretion exists. Ms. Contreras claims violations of Fed. R. Crim. P. 43 and 28 U.S.C. § 753(b) for not dismissing 132 jurors in open court. However, neither Rule 43 nor § 753(b) necessitates that all juror dismissals occur in the presence of defendants, and the Jury Selection and Service Act permits pre-voir dire excusal under certain conditions. Thus, the district court's dismissal of 130 jurors was compliant with these rules, and any improper dismissal of two jurors was deemed harmless to the defendants.
