FILED
United States Court of Appeals
Tenth Circuit
MAR 11 1997
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee and Cross-Appellant,
Nos. 95-2070 &
v. 95-2126
DOLORAS CONTRERAS,
Defendant-Appellant and Cross-Appellee.
_____________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-92-486-15-JC)
_____________________
Charles L. Barth (John J. Kelly, United States Attorney, with him on the briefs),
Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-
Appellee and Cross-Appellant.
Vicki Mandell-King (Michael Gordon Katz, Federal Public Defender, with her on
the briefs), Assistant Federal Public Defender for the Districts of Colorado and
Wyoming, for Defendant-Appellant and Cross-Appellee.
_____________________
Before BALDOCK, and BRORBY, Circuit Judges, and DANIEL,(1) District
Judge.
(1) The Honorable Wiley Y. Daniel, United States District Judge for the
District of Colorado, sitting by designation.
BRORBY, Circuit Judge.
_____________________
Doloras Contreras was convicted in the United States District Court for the
District of New Mexico on four counts in a multi-defendant, multi-count
indictment. The trial court departed downward from the United States Sentencing
Guidelines and sentenced Ms. Contreras to a 120-month term of imprisonment.
Ms. Contreras appeals her conviction, and the United States appeals the trial
court's decision to depart downward. We exercise jurisdiction pursuant to 28
U.S.C. 1291, and we affirm in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gabriel Rodriguez-Aguirre ("Mr. Aguirre") managed a family-run
organization specializing in the sale and distribution of large amounts of
marijuana and cocaine. United States v. Denogean, 79 F.3d 1010, 1011 (10th
Cir.), cert. denied, 117 S. Ct. 154 (1996). "Between 1984 and 1992, the ...
organization sold more than 20,000 pounds of marijuana and over 20,000 pounds
of cocaine to narcotics traffickers in New Mexico, Arizona, Utah, Kansas,
Massachusetts, and elsewhere throughout the United States." Id. The
organization used narcotics proceeds to purchase real property and other assets.
Id.
Doloras Contreras is the daughter of Mr. Aguirre. From December 1986
until October 1992, Ms. Contreras lived at a residence located in Phoenix,
Arizona. During this time, Ms. Contreras used her residence to store large
amounts of marijuana, cocaine, and United States currency derived from the sale
of controlled substances. Ms. Contreras participated in the possession and
conspiracy to distribute at least 3,080 pounds of cocaine and was involved in
laundering $365,400.00 of illegally-derived currency.
On October 19, 1992, the United States filed a civil complaint for forfeiture
of property in the District of New Mexico entitled United States v. Fifty-One
Items of Real Property, etc., No. CIV 92-1155-JC. Although Ms. Contreras was
one of the named claimants, she never filed a claim or answer. Consequently, the
United States District Court entered a partial default judgment against Ms.
Contreras and others named in the civil forfeiture complaint.
The United States filed another civil forfeiture action against Ms. Contreras
in January 1993 entitled United States v. 247 Horses, No. CIV 93-0102-JC. Once
again, Ms. Contreras did not file a claim or answer, and the court entered a partial
default judgment against Ms. Contreras.
On October 20, 1992, the United States charged Ms. Contreras and twenty-
one others, including Mr. Aguirre, in a bill of indictment filed in the District of
New Mexico. The twenty-three count bill of indictment charged Ms. Contreras
with conspiracy to distribute more than 100 grams of marijuana, in violation of 21
U.S.C. 841(a)(1) and (b)(1)(A) (1994), and three counts of money laundering in
violation of 18 U.S.C. 1956(a)(1)(B)(i) (Supp. 1996). The United States based
the money laundering counts on purchases of a residence in Glendale, Arizona, a
Nissan Pathfinder automobile at Lou Grubb Chevrolet, and eleven horses. Ms.
Contreras pled not guilty to the charges against her and proceeded to trial with
her co-defendants in January 1994.
The original trial of Ms. Contreras and her co-defendants lasted six months,
becoming "the longest federal criminal trial ever held in the District of New
Mexico." United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024 (10th Cir.
1996). After deliberating for more than six weeks, the jury was unable to reach a
verdict on the majority of counts, and the trial judge declared a mistrial. Id.
Neither the United States nor counsel for Ms. Contreras objected to the mistrial.
In August 1994, the United States obtained a superseding indictment
against Ms. Contreras and nine of her co-defendants. In addition to the charges
included in the original indictment, the superseding indictment contained
additional charges against Ms. Contreras. Count II charged Ms. Contreras with
conspiracy to possess with the intent to distribute cocaine, and conspiracy to
distribute cocaine. Count XIX charged Ms. Contreras with receiving income from
the distribution of controlled substances, and investing this income in Amador
Investors,(1) in violation of 21 U.S.C. 854 (1994). Although Ms. Contreras
moved to dismiss the superseding indictment due to vindictive prosecution, the
trial court summarily denied her motion.
The United States retried Ms. Contreras and her co-defendants in November
and December 1994. Prior to trial, the court randomly selected a jury panel of
approximately 250 jurors at random from voter registration lists for the Roswell
Division of the District of New Mexico. The district judge excused 132 jurors
sua sponte after individually reviewing the juror questionnaires; the court directed
only 115 jurors to report for jury service. Six days prior to trial, defense counsel
were provided copies of juror questionnaires for the panel that had been selected
for service, and defense counsel learned the court had excused the remaining
(1) Amador Investors was a real estate business Ms. Contreras became
involved with in 1990. (Vol. 40 at 4909-10.) Although she performed no work
for the company, Ms. Contreras received a salary from Amador Investors and
used a company credit card for personal expenses. (Id. at 4910-11, 4913-16.)
jurors.
On the first day of trial, prior to jury selection, Mr. Aguirre filed a motion
to stay the proceedings, and defendant David Morales filed a motion to quash the
jury venire.(2) The motions alleged the jury venire panel seriously misrepresented
the ethnic makeup of the District of New Mexico. Specifically, the defendants
claimed persons of Hispanic origin and American Indian background were
underrepresented. The defendants sought a stay of the trial to allow time for an
investigation of the ethnic background of all the jurors. In addition, Mr. Morales'
counsel, Paul Kennedy, advised the court orally of United States v. Calabrese,
942 F.2d 218 (3d Cir. 1991), which Mr. Kennedy claimed stood for the
proposition that it is reversible error for a court to exclude a juror prior to voir
dire "simply because a juror knows a defendant." Mr. Kennedy claimed it
appeared the court had excused at least one juror because the juror stated he or
she knew one of the defendants.
Following Mr. Kennedy's comments, the court held an evidentiary hearing
(2) Pursuant to the court's order that "one motion made by one defense
counsel applies to all [defendants]," all the defendants, including Ms. Contreras,
adopted the motions of Mr. Aguirre and Mr. Morales.
and Nancy Metzger, jury administrator for the Federal Court Clerk's office,
testified. Ms. Metzger stated the jury panel of approximately 250 jurors had been
selected at random from voter registration lists. Ms. Metzger testified the district
judge reviewed the juror questionnaires and directed her to excuse more than 100
specific jurors. Ms. Metzger stated she did not know the ethnicity of either the
excused jurors or the jurors who had reported for service.
The court then stated it had reviewed the individual juror questionnaires
and "retained the stack of those who, for some reason or other, claimed that they
couldn't serve." The court explained:
I think it goes without saying that the ones that were not summoned,
I never looked at the last name, whether it was [a] Hispanic surname
or whether it was not a Hispanic surname, or whether they were
American Indians or not. As a matter of fact, I'm not real sure that
that's part of the questionnaire --
Ms. Metzger confirmed the questionnaire forms did not direct the jurors to
provide their ethnicity.
The district court denied the defendants' motion to stay the proceedings and
the defendants' motion to quash the jury venire. However, the court allowed the
defendants to supplement the record within ten days of the completion of the trial
with information concerning the racial composition of the District of New Mexico
and the Roswell Division. None of the defendants chose to supplement the record
with such information.
The trial of Ms. Contreras and her co-defendants lasted approximately one
month. On December 15, 1994, the jury returned a verdict against Ms. Contreras
on four counts -- conspiracy, investment of illicit drug profits, and two counts of
money laundering. At sentencing, the trial court adopted the factual findings and
guideline application in Ms. Contreras' presentence report. Thus, the court
determined Ms. Contreras had a base offense level of 38, a criminal history
category of I, and a guideline range of 235 to 293 months. Nevertheless, the
court found Ms. Contreras' guideline range to be substantially higher than that
applied to co-defendant Paula Denogean, who the court concluded "was at least
equally or maybe even ... more culpable than [Ms. Contreras]."(3) To avoid an
"unwarranted disparity of sentences," the court granted Ms. Contreras' motion for
a downward departure and sentenced Ms. Contreras to 120 months based upon an
adjusted base offense level of 31 and a sentencing range of 108-135 months.
(3) Ms. Denogean was severed out of the second trial due to illness and
entered into a plea agreement by which she admitted her responsibility in
possessing with the intent to distribute in excess of 100 kilograms of marijuana.
The court sentenced Ms. Denogean to an 84 month term of imprisonment pursuant
to Fed. R. Crim. P. 11(e)(1)(c).
II. ISSUES RAISED ON APPEAL
Ms. Contreras' appeal raises four issues: (1) whether the United States
obtained her criminal convictions in violation of the Fifth Amendment's
protection against double jeopardy; (2) whether the superseding indictment filed
after the mistrial should have been dismissed on grounds of prosecutorial
vindictiveness; (3) whether the evidence was sufficient to support Ms. Contreras'
conviction on Count XVIII, money laundering; and (4) whether the district court's
pre-voir dire jury selection procedures violated Ms. Contreras' constitutional
rights or her rights under the Jury Selection and Service Act of 1968, 28 U.S.C.
1861-1878 (1994)(4). The government's cross-appeal raises one issue: whether
the trial court erred in departing downward from the applicable guideline range to
avoid a perceived disparity in sentences between Ms. Contreras and co-defendant
Paula Denogean. Ms. Contreras contends the government's appeal should be
dismissed as untimely filed.
(4) Ms. Contreras did not raise the jury selection issue in her briefs on
appeal. However, on November 4, 1996, Ms. Contreras filed a motion to adopt
this issue from the briefs of her co-defendants, David Morales, Gabriel Aguirre-
Rodriguez, and Eleno Aguirre. We hereby grant Ms. Contreras' Motion to Adopt.
III. ANALYSIS
A. Ms. Contreras' Appeal
1. Double Jeopardy
Ms. Contreras first claims her criminal convictions should be dismissed
because they were obtained in violation of the Fifth Amendment's prohibition
against double jeopardy. According to Ms. Contreras, the judicial forfeiture
proceedings that preceded her criminal convictions served to adjudicate her
personal culpability. Thus, upon entry of default judgment in these proceedings,
Ms. Contreras contends jeopardy attached, precluding the United States from
instituting criminal proceedings against her based on the same underlying
conduct.
Fed. R. Crim P. 52(b) provides a court of appeals with a limited power to
correct errors that were not raised in district court. United States v. Olano, 507
U.S. 725, 731 (1993). Under this rule, an appeals court has discretion to review a
forfeited error if the error is "plain" and "affect[s] substantial rights." Id. at 732;
see also Fed. R. Crim. P. 52(b). However, the court should not exercise that
discretion unless the error "'seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.'" Olano, 507 U.S. at 732 (quoting United
States v. Young, 470 U.S. 1 (1985). Here, Ms. Contreras' double jeopardy claim,
if established, would be a plain error affecting the fairness of the district court
proceedings. Thus, we exercise our discretion under Rule 52(b) and review Ms.
Contreras' double jeopardy claim for plain error.(5)
In United States v. Ursery, ___ U.S. ___, ___, 116 S. Ct. 2135, 2138-39
(1996), the government instituted civil forfeiture proceedings against defendant
Guy Ursery's home, alleging the home had been used to facilitate the processing
and distribution of marijuana. The government subsequently charged Mr. Ursery
with manufacturing marijuana, and a jury convicted him on the charge. Id. On
appeal, the Sixth Circuit reversed Mr. Ursery's criminal conviction on the grounds
the conviction violated the Fifth Amendment's Double Jeopardy Clause. Id.
Thereafter, the Supreme Court granted certiorari to determine the issue of whether
a civil forfeiture constitutes punishment for purposes of the Double Jeopardy
Clause. Id. at 2138. In analyzing this issue, the Court noted that "[s]ince the earliest years of this Nation, Congress has authorized the Government to seek
parallel in rem civil forfeiture actions and criminal prosecutions based upon the
same underlying events." Id. at 2140 (citations omitted). Concluding Congress
intended in rem civil forfeiture to be a "remedial civil sanction, distinct from
potentially punitive in personam civil penalties such as fines," the Court ruled
civil forfeitures are neither "punishment" nor "criminal" for purposes of the
Double Jeopardy Clause. Id. at 2141-42, 2149. Consequently, the Court held the
government could constitutionally pursue both civil forfeiture and criminal
charges against Mr. Ursery. Id. at 2149.
Since civil forfeiture proceedings do not constitute punishment under the
Double Jeopardy Clause, Ms. Contreras was not placed in jeopardy by either of
the civil forfeiture proceedings brought against her. Only the criminal
proceedings subjected Ms. Contreras to punishment for purposes of double
jeopardy. Thus, Ms. Contreras' criminal convictions did not violate the Fifth
Amendment's Double Jeopardy Clause.
This court's holding in Denogean, a case involving Ms. Contreras' co-
defendant, Paula Denogean, also is dispositive of Ms. Contreras' double jeopardy
claim. 79 F.3d at 1010. There, Ms. Denogean argued her drug-related conviction
(5) Ms. Contreras alleges she asserted the double jeopardy issue in "her
supplement to Aguirre's motion in arrest of judgment." Unfortunately, Ms.
Contreras does not provide the court with the record cite to this alleged document,
in violation of Tenth Circuit Rule 28.1. After an exhaustive search of the docket
sheet and the entire record, the court has been unable to locate any document
entitled "supplement to Aguirre's motion in arrest of judgment." Furthermore, the
court has been unable to find any place in the record where Ms. Contreras raised
the double jeopardy issue before the district court. Consequently, we review the
double jeopardy issue for plain error.
violated the Double Jeopardy Clause because it was obtained subsequent to civil
forfeiture proceedings. Id. at 1012. We dismissed Ms. Denogean's appeal on the
grounds she failed to judicially contest the United States' forfeiture action. Id. at
1013. Relying on prior Tenth Circuit case law, we held "a defendant's failure to
judicially contest a civil forfeiture action is fatal to her double jeopardy challenge
to a subsequent criminal proceeding." Id.
Similar to Ms. Denogean, Ms. Contreras did not contest the civil forfeiture
proceedings brought against her. Thus, under Denogean, Ms. Contreras was a
non-party who was not placed at risk by the forfeiture proceedings. "[W]ithout
risk of a determination of guilt, jeopardy does not attach, and neither an appeal
nor further prosecution constitutes double jeopardy." Id. (internal quotation
marks omitted).
2. Prosecutorial Vindictiveness
Ms. Contreras next argues the district court should have dismissed the
superseding indictment due to prosecutorial vindictiveness. Following the
mistrial, the government filed a superseding indictment expanding the charges
against Ms. Contreras to include possession with the intent to distribute and
distribution of cocaine, and to include another count against Ms. Contreras
relating to her investment of funds in Amador Investors. Ms. Contreras contends
the new charges were known to the government prior to the first trial and were
motivated by vindictiveness.
The Supreme Court has stated the very purpose of instituting criminal
proceedings against an individual is to punish; therefore, the mere presence of a
punitive motivation behind prosecutorial action does not render such action
constitutionally violative. United States v. Goodwin, 457 U.S. 368, 372 (1982).
However, "[t]o punish a person because he has done what the law plainly allows
him to do is a due process violation 'of the most basic sort.'" Id. (quoting
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)).
While a prosecutor may penalize a defendant for violating the law, a
prosecutor may not punish a defendant for "exercising a protected statutory or
constitutional right." Goodwin, 457 U.S. at 372. Therefore, our focus in
analyzing a claim of prosecutorial vindictiveness must be whether "'as a practical
matter, there is a realistic or reasonable likelihood of prosecutorial conduct that
would not have occurred but for hostility or punitive animus toward the defendant
because he exercised his specific legal right.'" United States v. Raymer, 941 F.2d
1031, 1042 (10th Cir. 1991) (emphasis added) (quoting United States v. Gallegos-
Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982)).
Since vindictive prosecution claims often turn on the facts of the case, we
review a district court's factual findings under the clearly erroneous standard,
while we review the legal principles guiding the district court de novo. Raymer,
941 F.2d at 1039 (citing United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir.),
cert. denied, 493 U.S. 995 (1989)). To establish a claim of vindictive
prosecution, the defendant must show either: (1) actual vindictiveness or (2) a
reasonable likelihood of vindictiveness, which then raises a presumption of
vindictiveness. Raymer, 941 F.2d at 1040. Once the defendant successfully
establishes either, the burden shifts to the prosecution to justify its decision with
"legitimate, articulable, objective reasons." Id. If the defendant is unable to
prove actual vindictiveness or a realistic likelihood of vindictiveness, a trial court
need not reach the issue of government justification. Id.
In the present case, Ms. Contreras does not assert an actual vindictiveness
claim; rather, she contends the circumstances surrounding the enhancement of
charges were such that a reasonable likelihood of vindictiveness exists. We
disagree.
Generally, where, as here, a modification in a charging decision follows a
mistrial occurring for neutral reasons, such as a hung jury, and without objection
from the government, no presumption of vindictiveness is raised because there is
no reason why the prosecutor would consider the defendant responsible for the
need for a new trial. United States v. Doran, 882 F.2d 1511 (10th Cir. 1989).
Nevertheless, the Supreme Court has refused to adopt per se rules in the
prosecutorial vindictiveness context. Id. at 1521. Consequently, to determine
whether a reasonable likelihood of vindictiveness exists, we must look to the
totality of the objective circumstances surrounding the prosecutorial decision. Id.
In Doran, the defendant was tried on two counts in a multi-defendant,
multi-count indictment. 882 F.2d at 1513-14. During the trial, the defendant's
attorney was hospitalized, and the court declared a mistrial. Id. at 1513.
Thereafter, the defendant filed a motion to dismiss the indictment under the
Speedy Trial Act, and the district court orally dismissed that motion. Id.
Contemporaneous with the defendant's appeal of the motion to dismiss, the
government filed a superseding indictment adding five counts against him. Id.
Following the defendant's trial and conviction on the charges in the superseding
indictment, the defendant appealed to this court arguing, inter alia, prosecutorial
vindictiveness motivated the additional counts. Id. at 1518, 1527.
Because the government added the new charges against Mr. Doran after the
assertion of his speedy trial rights, we applied a "totality of the circumstances"
test to conclude there was no reasonable likelihood that improper prosecutorial
vindictiveness motivated the government to impose the new charges.(6) Id. at
1520-21.
In the instant case, the objective circumstances surrounding the prosecutor's
decision to increase the charges against Ms. Contreras are as follows. The district
court declared a mistrial in the original trial of Ms. Contreras after more than six
weeks of jury deliberations. Rodriguez-Aguirre, 73 F.3d at 1024. The court
declared a mistrial because the jury was unable to reach a verdict, and neither the
prosecution nor the defense objected to the mistrial. Following the mistrial, the
government received some negative publicity from the media. Prior to Ms.
Contreras' second trial, the government filed a superseding bill of indictment
adding new charges against her. The government was aware of the information
pertinent to the added cocaine charges prior to Ms. Contreras' first trial.
(6) We found only two facts in Doran supported an inference of
vindictiveness: (1) the United States added the charges after Doran asserted his
speedy trial rights, and (2) the United States had already spent considerable time
analyzing the evidence and determining the appropriate charges prior to the first
trial. Id. These facts were insufficient to create a presumption of prosecutorial
vindictiveness. Id. at 1521-23.
We find the above circumstances, coupled with the fact Ms. Contreras
failed to exercise a specific legal right, insufficient to create a presumption of
prosecutorial vindictiveness. The United States filed the superseding indictment
after a mistrial was declared, without objection, for neutral, uncontrollable
reasons. Consequently, the specter of prosecutorial animosity is not raised.
Although the United States suffered some adverse media coverage following the
mistrial, we are not persuaded the superseding indictment was filed in retaliation
for the negative publicity. Given the fact a presumption of prosecutorial
vindictiveness was not raised in Doran where additional charges were filed
contemporaneous with the assertion of the defendant's Speedy Trial rights, we do
not see how such a presumption could arise in this case from negative press
coverage. Moreover, we do not believe a presumption of vindictiveness flows
from the United States' knowledge of Ms. Contreras' involvement in cocaine
trafficking prior to the first trial. The overall complexity of this multi-indictment,
multi-defendant case "permit[s] a reasonable inference that given extra time to
analyze the evidence, the Government legitimately decided the new theory of
liability was appropriate." See Doran, 882 F.2d at 1522. We therefore conclude
Ms. Contreras has failed to create a presumption of prosecutorial vindictiveness.
3. Money Laundering
Finally, Ms. Contreras argues the evidence at trial was insufficient to
support her conviction on Count XVIII, money laundering. In reviewing the
sufficiency of the evidence in a criminal case, "'[t]he evidence --both direct and
circumstantial, together with reasonable inferences to be drawn therefrom -- is
sufficient if, when taken in the light most favorable to the government, a
reasonable jury could find the defendant guilty beyond a reasonable doubt.'"
United States v. Sanders, 929 F.2d 1466, 1470 (10th Cir.) (quoting United States
v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128 (1986)),
cert. denied, 502 U.S. 846 (1991).
The jury in this case convicted Ms. Contreras of violating 18 U.S.C.
1956(a)(1)(B)(i) in purchasing a Nissan Pathfinder. To obtain a conviction
under this statuts, the government is required to prove the following four
elements beyond a reasonable doubt:
(1) the defendant engaged in a financial transaction;
(2) the defendant knew the property involved in the transaction represented
the proceeds of unlawful activities;
(3) the property involved was in fact the proceeds of unlawful activity; and
(4) the defendant knew the transaction was designed "in whole or in part ...
to conceal or disguise the nature, the location, the source, the ownership, or the
control of the proceeds of specified unlawful activity."
18 U.S.C.A. 1956(a)(1)(B)(i) (Supp. 1996); United States v. Garcia-Emanuel,
14 F.3d 1469, 1473 (10th Cir. 1994). On appeal, Ms. Contreras contends the
United States failed to prove the fourth element of money laundering -- that is,
Ms. Contreras purchased the Nissan Pathfinder with the intent to conceal.
According to Ms. Contreras, the purchase of the automobile demonstrates no more
than "money spending"; the evidence only indicates Mr. Aguirre "openly and
conspicuously" purchased the car for his daughter's personal use.
In enacting 18 U.S.C.A. 1956(a)(1)(B)(i), Congress did not intend to
create a statute punishing mere "money spending." See Sanders, 929 F.2d at
1474. Rather, Congress designed the money laundering statute to "reach
commercial transactions intended (at least in part) to disguise the relationship of
the item purchased with the person providing the proceeds and that the proceeds
used to make the purchase were obtained from illegal activities." Sanders, 929
F.2d at 1472. A money laundering conviction need not be supported by evidence
of the launderer's intent to conceal his or her identity while conducting the
transaction. Garcia-Emanuel, 14 F.3d at 1473. "'[T]he statute is aimed broadly
at transactions designed in whole or in part to conceal or disguise in any manner
the nature, location, source, ownership or control of the proceeds of unlawful
activity.'" Id. (emphasis in original) (quoting United States v. Lovett, 964 F.2d
1029, 1034 n.3 (10th Cir.), cert. denied, 506 U.S. 857 (1992)).
As we noted in Garcia-Emanuel, separating money laundering from mere
money spending is often a formidable task. 14 F.3d at 1474. In ascertaining
whether the requisite intent to disguise or conceal was present, we consider a
variety of types of evidence including: statements by a defendant probative of
intent to conceal; unusual secrecy surrounding the transaction; structuring the
transaction to avoid attention; depositing illegal profits in the bank account of a
legitimate business; highly irregular features of the transaction; using third parties
to conceal the real owner; a series of unusual financial moves cumulating in the
transaction; and expert testimony on practices of criminals. Id. at 1475-76. Of
course, this is not an exclusive list of factors for a court to consider when
determining whether a defendant possessed the intent to disguise or conceal. Id.
at 1476.
The evidence in the present case reveals Ms. Contreras purchased a Nissan
Pathfinder from co-defendant Art Rubio, a salesman at Lou Grubb Chevrolet.
The car was purchased by way of a $25,000.00 Bancomer check. The check,
made payable to Lou Grubb, was signed by a Bancomer official and drawn on the
account of Texas Commerce Bank in El Paso, Texas. The check lists no remitter,
and it is impossible to determine the funds' source from the face of the check.
Given the vague and highly unusual attributes of the check used to purchase a
vehicle for personal use, a reasonable jury could have concluded the evidence
demonstrated Ms. Contreras' intent to disguise the illicit source of the funds.
Thus, we find sufficient evidence supports Ms. Contreras' conviction on Count
XVIII, money laundering.
4. Jury Selection
Ms. Contreras contends the district court's sua sponte excusal of over half
of the jury panel, prior to voir dire, violated the Jury Selection and Service Act,
as well as Ms. Contreras' constitutional rights. We review Ms. Contreras'
statutory challenge and constitutional claims separately.
a. Jury Selection and Service Act
Ms. Contreras first contends the district court's pre-voir dire excusals
violated the Jury Selection and Service Act of 1968. In general, "[t]he trial judge
is vested with a wide discretion for determining the competency of jurors and his
judgment will not be interfered with except in the case of an abuse of discretion."
United States v. Porth, 426 F.2d 519, 523 (10th Cir.) (internal quotation marks
omitted), cert. denied, 400 U.S. 824 (1970). However, to the extent Ms.
Contreras' contentions rest on statutory interpretations of the Jury Selection and
Service Act, we review the district court's decisions de novo to determine whether
the jury selection process failed to substantially comply with the Jury Selection
and Service Act. 28 U.S.C. 1867 (1994); United States v. Bailey, 76 F.3d 320,
321 (10th Cir.), cert. denied, 116 S. Ct. 1889 (1996).
The Jury Selection and Service Act of 1968 governs the selection of grand
and petit juries in federal court, and "seeks to ensure that potential grand and petit
jurors are selected at random from a representative cross section of the
community and that all qualified citizens have the opportunity to be considered
for service." United States v. Bearden, 659 F.2d 590, 593 (5th Cir. 1981) (citing
28 U.S.C. 1861), cert. denied, 456 U.S. 936 (1982). To achieve these
objectives, the Jury Selection and Service Act requires each United States District
Court to devise a written plan for the random selection of jurors. 18 U.S.C.
1863. While the Jury Selection and Service Act provides the district court with
a reasonable degree of flexibility in designing a plan to accommodate local
conditions, the regulation prescribes a general procedural scheme to be followed.
Id.; Bearden, 659 F.2d at 594.
Section 1866(c) of the Jury Selection and Service Act sets forth the
circumstances under which a qualified juror may be removed from service. The
section provides, in pertinent part, as follows:
[e]xcept as provided in section 1865 of this title or in any jury
selection plan provision ..., no person ... shall be disqualified,
excluded, excused, or exempt from service as jurors: Provided, That
any person summoned for jury service may be (1) excused by the
court, or by the clerk under supervision of the court if the court's jury
selection plan so authorizes, upon a showing of undue hardship or
extreme inconvenience, ... or (2) excluded by the court on the ground
that such person may be unable to render impartial jury service or
that his service as a juror would be likely to disrupt the proceedings,
or (3) excluded upon peremptory challenge as provided by law, or (4)
excluded pursuant to the procedure specified by law upon a challenge
by any party for good cause shown, or (5) excluded upon
determination by the court that his service as a juror would be likely
to threaten the secrecy of the proceedings, or otherwise adversely
affect the integrity of jury deliberations.
28 U.S.C. 1866(c). This section further provides that a juror may not be
excluded under category (5) unless the court determines, in open court, that such
an exclusion is warranted. Id.
A party challenging the jury selection process under the Jury Selection and
Service Act must make his challenge "before the voir dire examination begins, or
within seven days after the defendant discovered or could have discovered, by the
exercise of diligence, the grounds therefor, whichever is earlier." 28 U.S.C.
1867(a). The motion must contain a "sworn statement of facts which, if true,
would constitute a substantial failure to comply with the [Jury Selection and
Service Act]." 18 U.S.C. 1867(d). The Jury Selection and Service Act's
procedural requirements are designed to give the district court an opportunity to
evaluate the alleged noncompliance and to correct such noncompliance before
precious judicial resources are invested in a trial. Strict compliance with these
procedural requirements is essential. See United States v. Kennedy, 548 F.2d
608, 612-14 (5th Cir.), cert. denied, 434 U.S. 865 (1977).
In the present case, we must first determine whether Ms. Contreras
sufficiently complied with the procedural requirements of the Jury Selection and
Service Act. The United States contends Ms. Contreras' challenge to the district
court's jury selection process is barred by the defendants' failure to file a sworn
affidavit with their motions challenging the selection of the jury. Although Ms.
Contreras concedes a sworn statement of facts was not filed with the defendants'
motions, she argues such an affidavit should be excused in this case. According
to Ms. Contreras, the testimony elicited from the court and the jury administrator
on the first day of trial served as an adequate substitute for the sworn affidavit
requirement. See Calabrese, 942 F.2d at 222.
As noted, courts have strictly enforced the procedural requirements of the
Jury Selection and Service Act, including the sworn statement requirement. In
Kennedy, the Fifth Circuit concluded the district court's emergency use of
volunteer jurors constituted a substantial failure to comply with the Jury Selection
and Service Act. 548 F.2d at 612. Nevertheless, the court affirmed the
defendant's conviction because the defendant failed to accompany his motion
challenging the jury panel with a sworn statement. Id. at 613. Finding Congress
left no room for "ad hoc review" of the sworn statement requirement's usefulness,
the court explained:
In the [Jury Selection and Service] Act, Congress set out a uniform,
relatively strict scheme for jury selection. Congress included a new
remedy for substantial violations of the Act, regardless of whether
the litigant challenging the jury had been prejudiced by the jury
selection. As a price for this remedy, Congress was entitled to exact
strict compliance with formal procedural rules.
Id.
Similarly, in United States v. Cooper, 733 F.2d 1360, 1362, (10th Cir.),
cert. denied, 467 U.S. 1255 (1984), defendant Darryl Threat, who was convicted
of aiding and abetting the passing of counterfeit money, argued to this Circuit the
jury selection process did not insure "a jury selected at random from a fair cross
section of the community." Id. at 1366. In reviewing Mr. Threat's contention, we
noted "a defendant is required [under Section 1867(d)] to submit a sworn
statement of facts ..., which if true would constitute a failure to comply with the
provisions of the [Jury Selection and Service] Act." Id. at 1366. Finding no
evidence that Mr. Threat filed a sworn affidavit with the district court, we
rejected Mr. Threat's claim and affirmed his conviction. Id; see also United
States v. Maldonado, 849 F.2d 522, 523 (11th Cir. 1988) (defendant failed to
preserve objection to jury selection because no sworn statement was submitted
with motion); United States v. LaChance, 788 F.2d 856, 876 (2d Cir.) (untimely
motion that did not contain sworn statement of facts properly denied), cert.
denied, 479 U.S. 883 (1986); United States v. Wellington, 754 F.2d 1457, 1468
(9th Cir.) (defendant's failure to file sworn statement precluded relief), cert.
denied, 474 U.S. 1032 (1985); United States v. Foxworth, 599 F.2d 1, 3 (1st Cir.
1979) (report filed with motion was not sworn and therefore precluded challenge
to jury selection process).
Other circuits have so strictly construed the sworn statement requirement
they have dismissed a Jury Selection and Service Act claim where a defendant has
filed a sworn statement, but the sworn statement has been insufficient to satisfy
1867(d). For example, in United States v. Paradies, 98 F.3d 1266, 1277-78
(11th Cir. 1996), petition for cert. filed, (U.S. Feb. 21, 1997) (No. 96-1346), the
defendants filed a sworn statement along with a timely motion objecting to the
district court's sua sponte excusal of over seventy potential jurors prior to voir
dire. However, the Eleventh Circuit concluded the defendants' challenge to the
jury selection process was barred because the sworn affidavit did "not state facts
which, if true, would [have] constitute[d] any violation of the Jury Selection Act."
(Emphasis in original.) Id. at 1278-79; see also United States v. Percival, 756
F.2d 600, 614-15 (7th Cir.1985) (trial court properly denied challenge to jury
selection where sworn statement did not constitute substantial failure to comply
with Jury Selection and Service Act).
Notwithstanding the enormous weight of authority to the contrary, Ms.
Contreras contends her failure to file a sworn statement is not fatal to her claim
under the Jury Selection and Service Act. Relying upon the Third Circuit's
decision in Calabrese, Ms. Contreras contends the evidentiary hearing held on the
first day of trial served as an adequate substitute for the sworn affidavit
requirement. In Calabrese, the district court excused twelve jurors prior to voir
dire because the jurors stated they knew one of the defendants. 942 F.2d at 221.
The defendants timely objected to the district court's exclusions, but failed to file
a sworn statement of facts. Id. at 222. To satisfy the requirements of 1867(d),
the defendants relied upon the sworn testimony of the clerk of court who had
granted the allegedly unwarranted exclusions.(7) Id. The Third Circuit held the
clerk's sworn testimony satisfied the sworn statement requirement. Id. Noting
the clerk's testimony "contained undisputed facts, sufficient to provide the district
court with a basis for making a decision," the district court held the clerk's sworn
testimony sufficiently complied with the procedural requirements of the Jury
Selection and Service Act. Id.
It appears the Third Circuit is the only court that has recognized a
substitute to the sworn affidavit requirement. Ms. Contreras has not provided any
case law other than Calabrese in support of her position, and our independent
research has failed to unearth any other cases recognizing an exception to the
sworn statement requirement. Based on our thorough review of all relevant
authorities, we conclude the exception created by the Third Circuit in Calabrese
is contrary to the overwhelming weight of authority, and we refuse to recognize
this exception. 28 U.S.C. 1867(d) unequivocally requires a motion challenging
jury selection procedures to contain "a sworn statement of facts which, if true,
would constitute a substantial failure to comply with the [Jury Selection and
Service Act]." Congress has determined the procedures prescribed under 1867
(7) The clerk testified immediately after the defendants objected to the
district court's exclusions.
"shall be the exclusive means" by which a person may challenge jury selection
procedures. 28 U.S.C. 1867(e).
The circuit courts, including the Tenth Circuit, have overwhelmingly
interpreted the Jury Selection and Service Act's sworn statement requirement
strictly. Based on the plain language of 1867(d), and the previously cited cases
strictly interpreting this provision, we refuse to recognize the substitute to the
sworn statement requirement recognized by the Third Circuit in Calabrese. As a
result, Ms. Contreras' claim under the Jury Selection and Service Act is precluded
due to the defendants' failure to accompany their motions challenging the jury
selection process with a sworn affidavit.
b. Sixth Amendment Fair-Cross-Section Claim
Ms. Contreras argues the district court's pre-voir dire excusal of over half
the jury panel resulted in a venire panel that underrepresented Hispanics, thus
violating her Sixth Amendment rights. We review the district court's factual
determination that the jury panel did not underrepresent Hispanics for clear error.
United States v. McKinney, 53 F.3d 664, 670 (5th Cir.), cert. denied, 116 S. Ct.
261 (1995).
The Supreme Court has declared "the selection of a petit jury from a
representative cross section of the community is an essential component of the
Sixth Amendment right to a jury trial." Taylor v. Louisiana, 419 U.S. 522, 528
(1975). Although a petit jury need not "mirror the community," jury panels or
venires "must not systematically exclude distinctive groups in the community and
thereby fail to be reasonably representative thereof." Id. at 538. To establish a
prima facie violation of a defendant's right to a jury drawn from a fair cross
section of the community, the defendant must show: (1) the group alleged to be
excluded is a "distinctive" group in the community; (2) the representation of this
group in jury venires is not fair and reasonable in relation to the number of such
persons in the community; and (3) the underrepresentation is due to systematic
exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S.
357, 364 (1979).
In the present case, Ms. Contreras cannot prevail on her "fair-cross-section"
claim because the defendants failed to establish the second prong of the prima
facie case. To show a jury panel has seriously underrepresented a distinctive
group, the defendant must first demonstrate the percentage of the community
made up of the group allegedly underrepresented, "for this is the conceptual
benchmark for the Sixth Amendment fair-cross-section requirement." Id. After
denying the defendants' motion to quash the jury venire panel on the first day of
trial, the district court granted the defendants permission to supplement the record
with evidence concerning the racial composition of the Roswell Division of the
District of New Mexico within ten days of the completion of trial. None of the
defendants supplemented the record with such information. Consequently, this
court is unable to determine whether the number of Hispanics on the jury panel
was not fair and reasonable in relation to the number of such persons in the New
Mexico community.
Moreover, even if evidence existed tending to show Hispanics were
seriously underrepresented on the jury panel, Ms. Contreras would still lack
sufficient evidence to establish a prima facie case. Ms. Contreras has failed to
prove any underrepresentation of Hispanics due to their systematic exclusion in
the jury selection process. The evidence before this court indicates the contrary.
On the first day of trial, the district judge explained he never looked at the last
names of the jurors he excused from service prior to voir dire. Ms. Metzger
confirmed that the juror questionnaires did not request the jurors to list their
ethnicity. There is simply no evidence that any of the jurors were excused
because of their ethnicity. Since Ms. Contreras has not established a prima facie
case of a fair-cross-section violation, her claim must fail.
c. Equal Protection
Ms. Contreras argues the district court's pre-voir dire exclusions also
violated her equal protection rights. To establish a prima facie case of equal
protection violation, Ms. Contreras must prove: (1) she is a member of a group
capable of being singled out for discriminatory treatment; (2) members of this
group were substantially underrepresented on the venire; and (3) the venire was
selected under a practice providing an opportunity for discrimination. United
States v. Grisham, 63 F.3d 1074, 1081 (11th Cir. 1995) (citing Cunningham v.
Zant, 928 F.2d 1006, 1013 (11th Cir. 1991)), cert. denied, 116 S. Ct. 798 (1996);
see also Jefferson v. Morgan, 962 F.2d 1185, 1190 (6th Cir.) (citing Batson v.
Kentucky, 476 U.S. 79, 95 (1986)), cert. denied, 506 U.S. 905 (1992). The
defendant's failure to present evidence of the Hispanic population in New Mexico
also prevents Ms. Contreras from establishing an equal protection case. Without
such evidence, there is simply no means by which this court can determine
whether Hispanics were substantially underrepresented on the jury panel.(8) Moreover, it does not appear Ms. Contreras could prove the jury selection system
provided an opportunity for discrimination. As stated, the record reveals
ethnicity was not indicated on the juror questionnaires and the district judge
testified he did not pay attention to the last names of the jurors he excluded.
d. Sixth Amendment Right to Impartial Jury
Ms. Contreras argues for the first time on appeal that the district court
violated her Sixth Amendment right to an impartial jury by excusing jurors
without first conducting voir dire. Although we do not ordinarily consider
arguments raised for the first time on appeal, see Doelle v. Mountain States Tel.
& Tel., 872 F.2d 942, 944 n.4 (10th Cir. 1989), we can easily dispose of Ms.
Contreras' impartial jury claim.
As noted by Ms. Contreras, "[v]oir dire plays a critical function in assuring
the criminal defendant that his Sixth Amendment right to an impartial jury will be
honored." Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). However,
we are aware of no authority holding a defendant's right to an impartial jury is
(8) Ms. Contreras appears to argue an equal protection prima facie case is
established in light of the fact that there were significantly more Hispanics on the
original panel of jurors than there were on the panel that remained after the
district judge conducted his pre-voir dire excusals. Based upon the surnames of
the excused jurors, 22 or 16.67 % of the 132 excused jurors were Hispanic. As
for the 115 members of the jury venire, Ms. Contreras estimates only thirteen, or
11.3 per cent, were Hispanic. Assuming we can accurately calculate the number
of Hispanics from the panel members' surnames, we do not believe the disparity
between the percentage of Hispanics excused prior to voir dire and the percentageof Hispanics in the jury venire is statistically significant. See United States v.
Test, 550 F.2d 577, 587 (10th Cir. 1976) (prima facie case of systematic
exclusion not established by disparity of ten to sixteen percent) (relying on Swain
v. Alabama, 380 U.S. 202, 205 (1965).
violated per se by the pre-voir dire excusal of jurors. In fact, the Jury Selection
and Service Act indicates the district court may properly exclude summoned
jurors prior to voir dire based on hardship or bias. See 28 U.S.C. 1866(c).(9)
Other circuit courts have deemed certain pre-voir dire dismissals under 28 U.S.C.
1866(c) to be proper. See Calabrese, 942 F.2d at 221, 228 (although court
improperly excused twelve jurors prior to voir dire based on their alleged
knowledge of a defendant, court's pre-voir dire excusal of 155 jurors based on
hardship not found erroneous); United States v. North, 910 F.2d 843, 909-10
(D.C. Cir. 1990) (pre-voir dire excusal of jurors "for cause" not erroneous),
superseded in part on other grounds, 920 F.2d 940 (D.C. Cir. 1990), and cert.
denied, 500 U.S. 941 (1991).
Here, a thorough review of the excused-juror questionnaires reveals all but
perhaps two of the dismissed jurors were eligible under the Jury Selection and
Service Act for dismissal based on undue hardship or bias. We find the district court did not abuse its discretion in dismissing these jurors. With respect to the
two jurors whose excusal is questionable under 28 U.S.C. 1866(c), there is no
evidence either of these jurors was dismissed on account of their ethnicity. It
appears one juror was dismissed because she may have known one of the
defendants,(10) and the other was dismissed after stating on her questionnaire that
she was unable to serve for confidential reasons. Even if the trial court acted
improperly in dismissing these jurors prior to voir dire, see Calabrese, 942 F.2d
at 228-30, we do not believe the error was sufficiently egregious to have violated
Ms. Contreras' right to an impartial jury.(11)
(9) 28 U.S.C. 1866(c) sets forth five specific reasons a summoned juror
may be excused by the district court. They are: (1) undue hardship; (2) inability
to render impartial service; (3) peremptory challenge; (4) good cause shown; and
(5) the court determines excusal is warranted and exclusion is not inconsistent
with other provisions of the Jury Selection and Service Act. Id. Section 1867(c)
provides the court may only exclude a person under clause (5) in open court.
From this statement, we can logically infer that it may be permissible for a court
to exclude a juror for hardship or bias prior to voir dire.
(10) We need not decide the issue of whether a trial court has the discretion
to dismiss a juror prior to voir dire due to a juror's acquaintance with one of the
defendants. Although the Third Circuit determined a district court may not
dismiss a juror prior to voir dire based on the juror's "mere acquaintance with one
of the defendants," see Calabrese, 942 F.2d at 229, we note authority exists to
the contrary. See Paradies, 98 F.3d at 1279-80 (trial court has discretion to
excuse a juror based on acquaintance with defendant prior to voir dire) (relying
on United States v. Bailey, 468 F.2d 652, 658 (5th Cir. 1972)).
(11) Ms. Contreras also alleges the district court violated Fed. R. Crim. P. 43
and 28 U.S.C. 753(b) (1994) by failing to dismiss the 132 jurors in open court
and in the presence of the defendants. Fed. R. Crim. P. 43 provides, in pertinent
part, "the defendant shall be present ... at every stage of the trial including the
impaneling of the jury." 28 U.S.C. 753(b) requires the recording of "all
proceedings in criminal cases had in open court." Notwithstanding Ms. Contreras'
contentions to the contrary, neither Rule 43 nor 28 U.S.C. 753(b) requires the
excusal of all jurors to take place in open court in the presence of the defendants.
As stated, the Jury Selection and Service Act permits the pre-voir dire excusal of
jurors under certain circumstances. See supra at note 9. Circuit authority is in
accord. See id. Thus, the district court's dismissal of the 130 jurors who wereeligible for dismissal under 28 U.S.C. 1866(c) did not violate Rule 43 or 28
U.S.C. 753(b). To the extent the district court improperly dismissed two jurors
in violation of these provisions, we conclude the errors were harmless to the
defendants.
B. United States' Appeal
The United States contends the trial court erred in departing downward
from the sentencing guidelines to avoid a perceived disparity in the sentences of
Ms. Contreras and her co-defendant, Paula Denogean. In response to the United
States' appeal, Ms. Contreras has filed a motion to dismiss. She argues the
government's notice of appeal was not timely filed. We first review Ms.
Contreras' motion to dismiss to ascertain whether we have jurisdiction to entertain
the United States' appeal.
1. Motion to Dismiss
Fed. R. App. P. 4(b) provides, in pertinent part, that "[w]hen an appeal by
the government is authorized by statute, the notice of appeal must be filed in the
district court within 30 days after (i) the entry of the judgment or order appealed
from or (ii) the filing of a notice of appeal by any defendant." A judgment or
order is "entered" when it is entered on the criminal docket. Fed. R. App. P. 4(b).
Here, the United States appeals from the district court's order granting Ms.
Contreras' motion for a downward departure. The Clerk of Court entered this
order on the criminal docket on May 19, 1995. Because the United States filed its
notice of appeal on Monday, June 19, 1995, the appeal was filed within Rule
4(b)'s thirty-day time limit. We therefore deny Ms. Contreras' motion to dismiss.
2. Trial Court's Downward Departure
At sentencing, the trial court found Ms. Contreras had a base offense level
of 38, a criminal history category of I, and a guideline range of 235 to 293
months. However, the court took "judicial notice that the guideline range
applicable in this case is substantially higher than that applied to [co-defendant
Paula Denogean] who was at least equally or maybe even ... more culpable than
[Ms. Contreras]." To avoid an "unwarranted disparity of sentences," the court
granted Ms. Contreras' motion for a downward departure and sentenced Ms.
Contreras to 120 months based upon an adjusted base offense level of 31 and a
sentencing range of 108-135 months.
The United States argues the trial court impermissibly departed downward
from the applicable sentencing guideline range. According to the United States,
Ms. Contreras and Ms. Denogean are not "similarly situated" defendants
deserving of comparable sentences.
Recently, in Koon v. United States, 116 S. Ct. 2035, 2047 (1996), the
Supreme Court held an appellate court should apply an abuse of discretion
standard in reviewing a district court's decision to depart from the sentencing
guidelines. The Court found "[a] district court's decision to depart from the
Guidelines ... will in most cases be due substantial deference, for it embodies the
traditional exercise of discretion by a sentencing court." Id. at 2046 (citation
omitted). The Court reasoned district courts have an "institutional advantage"
over appellate courts in making departure decisions since they deal with such
determinations on a daily basis. Id. at 2046-47. Nevertheless, the Court also
concluded that "whether a factor is a permissible basis for departure under any
circumstances is a question of law, and the court of appeals need not defer to the
district court's resolution of the point." Id. at 2047. "The abuse of discretion
standard includes review to determine that the discretion was not guided by
erroneous legal conclusions." Id. at 2048.
In imposing a sentence, the district court shall consider, inter alia, "the
need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct." 18 U.S.C. 3553(a)(6)
(1994). The court must impose a sentence within the guideline range unless it
finds "there exists an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different from that
described." 18 U.S.C. 3553(b) (1994). For a departure from the sentencing
guidelines to be proper, "'there must be something "special" about a given
offender, or the accouterments of the crime committed, which distinguishes the
case from the mine-run for that offense.'" United States v. Wogan, 938 F.2d 1446,
1448 (1st Cir.), cert. denied, 502 U.S. 969 (1991). The guidelines were enacted
to "'eliminate unwarranted disparities [in sentencing] nationwide.'" United States
v. Garza, 1 F.3d 1098, 1100 (10th Cir.) (quoting United States v. Joyner, 924 F.2d
454, 460 (2d Cir. 1991)), cert. denied, 510 U.S. 1018 (1993). This circuit has
stated "'neither Congress nor the [Sentencing] Commission could have expected
that the mere fact of a difference between the applicable guideline range for a
defendant than that of his co-defendant would permit a departure, either because
the difference was too large or too small.'" Garza, 1 F.3d at 1100 (quoting
Joyner, 924 F.2d at 460.)
In Garza, the district court departed downward from defendant Ray Garza's
guideline range based upon a disparity in the potential sentence of Mr. Garza and
the sentence of his co-defendant. 1 F.3d at 1099. Noting Mr. Garza and his co-
defendant had similar records and were charged with similar conduct, the district
court concluded "the great disparity between the two sentences warranted
equalization." Id. at 1100. On appeal, we recognized our previous holding that
"'[w]hile similar offenders engaged in similar conduct should be sentenced
equivalently, disparate sentences are allowed where the disparity is explicable by
the facts on the record.'" Id. at 1101 (quoting United States v. Goddard, 929 F.2d
546, 550 (10th Cir. 1991)). We then analyzed whether Mr. Garza and his co-
defendant were, in fact, similarly situated defendants. Garza, 1 F.3d at 1101.
Concluding there was "no evidence of similarity in the participation, culpability,
criminality, and conduct of Garza and [his co-defendant]," we reversed the district
court's decision to depart downward. Id.
Here, as in Garza, we can determine whether the trial court abused its
discretion in departing from the guidelines without deciding whether disparity in
sentences between co-defendants is an appropriate basis for departure. The
record reveals Ms. Contreras went to trial and was convicted on four counts --
conspiracy to possess with intent to distribute in violation of 21 U.S.C.A. 846,
investment of illicit drug profits in violation of 21 U.S.C.A. 854, and two
counts of money laundering in violation of 18 U.S.C.A. 1956(a)(1)(B)(i). Ms.
Denogean, on the other hand, accepted responsibility for her criminal conduct and
pled guilty to a lesser charge of possession with intent to distribute marijuana.
Co-defendants who are charged with and convicted of different offenses are not
"similarly situated" with respect to the sentencing guidelines. United States v.
Butt, 955 F.2d 77, 90 (1st Cir. 1992). Here, Ms. Contreras and Ms. Denogean are
not "similarly situated." Ms. Contreras was convicted by a jury of four separate
offenses, while Ms. Denogean pled guilty to one offense. Given their distinct
situations, we conclude the trial court abused its discretion in concluding an
"unwarranted disparity" existed justifying downward departure.
In determining whether Ms. Contreras and Ms. Denogean are "similarly
situated," Ms. Contreras appears to argue the court should focus on their
respective roles in all of the offenses rather than the fact Ms. Denogean pled
guilty to a lesser offense and Ms. Contreras was convicted by a jury on four
counts. According to Ms. Contreras, she was "very willing" to plead guilty prior
to trial and receive a five year sentence. However, she alleges the United States
would not offer her a plea agreement because her father (Mr. Aguirre) would not
assent to a plea bargain.
Although Ms. Contreras may have been as deserving of a plea bargain as
Ms. Denogean, we must remind Ms. Contreras that entering into plea bargains is
within the United States Attorney's prosecutorial discretion. "[S]ubstituting the
judge's view of the proper general prosecutorial policy for that of the prosecutor
[does not constitute] a valid ground for departure from the guideline range."
United States v. Stanley, 928 F.2d 575, 583 (2d Cir.), cert. denied, 502 U.S. 845
(1991) (trial judge erred in departing downward because of disparity in sentence
between defendants who engaged in similar conduct but were charged with
different offenses as result of prosecutor's plea bargaining decisions). In other
words, a trial judge may not reduce a defendant's sentence on the mere basis that
a co-defendant who engaged in similar conduct but agreed to plead guilty to
lesser charges received a lighter sentence. Any rule to the contrary would invade
the United States Attorney's broad prosecutorial discretion. Moreover, "allowing
a defendant's sentence to be reduced on account of a codefendant's plea bargain
may tend to discourage the government from offering plea bargains in cases
involving multiple defendants." United States v. Mejia, 953 F.2d 461, 468 (9th
Cir.), cert. denied, 504 U.S. 926 (1992). Such a result should be avoided in the
interest of judicial economy. Id. In the case at bar, we therefore conclude the
trial judge erred in reducing Ms. Contreras' sentence based upon the sentence of a
co-defendant who pled guilty to a lesser charge.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court's decision to
depart downward, and we REMAND this case to the district court for
resentencing consistent with this opinion. We AFFIRM the judgment of the
district court in all other respects.
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