U.S. v. Villarreal ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-4607
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BALDEMAR SAMBRANO VILLARREAL and
REYNALDO SAMBRANO VILLARREAL,
Defendant-Appellants.
__________________________________________________________________
Appeals from the United States District Court for the
Eastern District of Texas
__________________________________________________________________
( June 8, 1992 )
Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Baldemar Sambrano Villarreal and his brother Reynaldo Sambrano
Villarreal appeal their convictions for the murder of Texas
Constable Darrell Lunsford on January 23, 1991. They assert a
number of reasons for reversal. Each is without merit. We AFFIRM.
I
On January 22, 1991, the Villarreals and Jesus Zambrano left
Houston, Texas, in a 1982 Oldsmobile Cutlass in which was loaded
approximately 31 pounds of marihuana that they planned to sell in
Chicago. At about 1:23 A.M. on January 23, 1991, Darrell Lunsford,
a Constable, stopped the car driven by Reynaldo Villarreal in
Garrison, Nacogdoches County, Texas. Before Lunsford left his
patrol car, he activated a dash mounted video camera. The events
that followed were recorded by that camera and a microphone worn by
Lunsford.
Lunsford asked Reynaldo to step out of the car and, after
inquiry, learned that Reynaldo had no driver's license. On
questioning Reynaldo and the others, Lunsford received conflicting
stories about where the three were traveling and who owned the car.
Lunsford then requested permission to look in the trunk of the car.
Baldemar then exited the vehicle, ignoring Lunsford's request that
he stay in the car. As Lunsford was standing by the open trunk,
Baldemar approached Reynaldo, said something in Spanish, and then
lunged at Lunsford, grabbing his legs and wrestling him to the side
of the road. As soon as Baldemar grabbed Lunsford, Reynaldo also
attacked Lunsford and Zambrano got out of the car and joined the
attack. The government asserts that Baldemar got control of
Lunsford's pistol and shot Lunsford once in the back of the neck.
The shot severed Lunsford's spinal cord and caused his almost
instant death. Although the Villarreals aver that once the
struggle began, "the facts become less clear," neither of the
Villarreals denies the government's version of Lunsford's death.
Accordingly, we accept that version.
Following the shooting, the three made a search for Baldemar's
identification card, took Lunsford's flashlight, gun, and wallet
and drove off. Soon, they were spotted by a Nacogdoches County
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deputy sheriff who had passed the stopped cars while Lunsford had
been speaking with Reynaldo. Deputy Sheriff Don Welch drove back
to the scene of the stop and there found Lunsford's body. He
radioed for help, then went in pursuit of the Oldsmobile's
occupants. In the meantime, Zambrano and the Villarreals had
abandoned the Olds and, taking the marihuana with them, were
fleeing on foot. The three, at some point, abandoned the marihuana
(later recovered by search teams). Ultimately, they were
apprehended after an extensive manhunt.
II
The Villarreals were indicted on three counts: Count One, for
violation of 21 U.S.C. § 848(e)(1)(B) and 18 U.S.C. § 2 (murder of
a law enforcement official while attempting to avoid apprehension
for a drug trafficking offense; one aiding and abetting punishable
as principal); Count Two, for violation of 21 U.S.C. 846
(conspiracy to possess marihuana with intent to distribute it); and
Count Three, for violation of 21 U.S.C. 841(a)(1) (possession of
marihuana with intent to distribute it). Counts Two and Three were
dismissed before trial on the government's motion. After a trial
in which Jesus Zambrano testified as a government witness, the jury
convicted both Villarreals. Although the government had sought the
death penalty for both defendants, the jury recommended against it
and the court sentenced Baldemar Sambrano Villarreal to life
imprisonment and Reynaldo Sambrano Villarreal to 40 years
imprisonment. This appeal followed.
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III
On appeal, the Villarreals raise two issues jointly and two
issues individually. We first address the issues presented jointly
and then turn to examine those presented individually.
A
Both Villarreals argue that their convictions should be
reversed because the statute under which they were convicted does
not state a crime. They argue that 21 U.S.C. § 848(e)(1)(B) is a
sentencing provision that fails to state a substantive violation.
The statute provides:
[A]ny person, during the commission of, in furtherance
of, or while attempting to avoid apprehension,
prosecution or service of a prison sentence for, a felony
violation of this subchapter or subchapter II of this
chapter who intentionally kills or counsels, commands,
induces, procures, or causes the intentional killing of
any Federal, State, or local law enforcement officer
engaged in, or on account of, the performance of such
officer's official duties and such killing results, shall
be sentenced to any term of imprisonment, which shall not
be less than 20 years, and which may be up to life
imprisonment, or may be sentenced to death.
In order to determine whether the provisions of § 848(e)(1)(b)
set out a substantive crime, we may look for assistance to Garrett
v. United States, 471 U.S. 773 (1985). In that case, Garrett
argued that 28 U.S.C. § 848 (which at that time dealt only with a
continuing criminal enterprise) punished conduct as a continuing
criminal enterprise or as a predicate offense, but not both. The
Court, however, said that "[t]he language, structure, and
legislative history . . . show in the plainest way that Congress
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intended the CCE provision to be a separate criminal offense which
was punishable in addition to, and not as a substitute for, the
predicate offenses." Garrett, 471 U.S. at 779 (emphasis ours).
The Court focused on several points in its analysis: 1) The
statute did not mention other offenses and set out a separate
penalty "rather than a multiplier of the penalty established for
some other offense." Id. at 781. 2) The statute referred to
"convictions . . . under this section." Id. 3) The statute
referred, in later subsections, to anyone "who is convicted under
paragraph (1)." Id. 4) The statute "define[d] the conduct that
constitute[d] being ``engaged in a continuing criminal enterprise,'"
and was "carefully crafted" in such a way that it was designed to
reach a certain class of criminal. Id. 5) The legislative history
referred to "conviction for [the] offense" provided for in §
848(a). Id. at 782. In applying Garrett to fathom the nature of
§ 848(e)(1)(B), we find that many of the same points are to be
made.
This statutory section sets forth the elements of the crime
(during commission of predicate drug felonies or avoidance of
penalty for them/ killing/ a law enforcement officer, engaged in
official duties or on account thereof), the mens rea required
(intent), and a separate penalty therefor (imprisonment for 20
years to life, or the death penalty). Subsection 848(g) provides
that the death penalty may be applied "for any offense under this
section" only after a hearing. Subsection 848(h) requires notice
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"[w]henever the Government intends to seek the death penalty for an
offense under this section for which one of the sentences provided
is death." Subsections 848(i), (j), (n), and (p) refer to "an
offense under subsection (e) of this section." The statute
"carefully craft[s]" a definition of the crime it seeks to punish,
which stands alone. The crime is based upon predicate offenses,
but is clearly separate from and in addition to those offenses.
Congress provided special procedural mechanisms to govern
imposition of the penalties provided. Finally, the history of the
statute illustrates a Congressional intent to establish a separate
offense. Before 1988, § 848 embodied only a single statutory
prohibition--it punished offenders who engaged in a continuing
criminal enterprise. After amendment by the Anti-Drug Abuse Act of
1988, Pub. L. 100-690, 102 Stat. 4382, 4387-88, § 848(e) had added
a death penalty provision, not for CCE offenses, but for an
entirely new group of offenses--intentional murders committed
during certain specified felonies.
The Villarreals argue that subsection (e) is headed "Death
penalty" and that the initial sentence in the subsection reads "In
addition to the other penalties set forth in this section." They
urge that this clearly indicates that Congress intended subsection
(e) as a sentencing provision to be applied to the specified drug
felonies as an additional penalty available when a law enforcement
officer is killed. They also argue that the structure of § 848
makes it clear that it is simply a penalty provision, that
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§ 848(e)(1)(B)'s language "commands, counsels, induces, procures,
or causes" is mere surplusage if the subsection sets out a
substantive offense, and that Garrett is both irrelevant and
distinguishable. We are not persuaded. As the Villarreals point
out, "the Supreme Court has . . . often held the best evidence of
Congress' intent in passing any given statute is the language that
Congress uses in that statute. See, e.g., Hallstrom v. Tillamook
County, 110 S. Ct. 304, 308-10 (1989)." We are convinced that
Congress created a substantive offense in 21 U.S.C. § 848(e)(1)(B)
and that its "language, structure, and . . . history . . . show in
the plainest way that Congress intended [it] to be a separate
criminal offense which was punishable in addition to, and not as a
substitute for, the predicate offenses." Garrett, 471 U.S. at 779.
B
The Villarreals next argue that "the prosecutor's use of
peremptory challenges to exclude all potential jurors who expressed
a general opposition to the death penalty violated those jurors'
right, under the Fifth Amendment's Equal Protection component and
under the First Amendment, not to be discriminatorily excluded from
jury participation on the basis of their expression of a political
belief." The essence of this argument is that potential jurors who
expressed unalterable opposition to the death penalty were
expressing a political opinion.
The defendants' argument projects an extension of Batson v.
Kentucky, 476 U.S. 79 (1986), and Powers v. Ohio, 111 S. Ct. 1364
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(1991), which make clear that the government cannot exercise its
peremptory strikes in a racially discriminatory manner. In the
present case, according to the Villarreals, jurors were excluded
"from a significant opportunity to participate in the
administration of justice on the basis of a characteristic
unrelated to juror fitness"--the political belief that capital
punishment is never appropriate. Political belief, their argument
continues, is protected by the Constitution's First and Fifth
Amendments in much the same manner as race. The Villarreals,
therefore, were tried by a jury from which potential jurors were
"discriminatorily excluded" and, under Batson and Powers, they are
entitled to a new trial before a proper jury.
We are not persuaded. Batson and Powers address only racial
discrimination. To hold that a venireperson's First Amendment
protected view cannot constitute a basis for exercising a
peremptory challenge is effectively to eliminate the peremptory
challenge. We do not believe the Supreme Court intended this
result. In any event, we decline to extend the Batson line of
cases to apply to the circumstances presented here. See Palmore v.
Sidoti, 466 U.S. 429, 432-33 (1984) (racial classifications
"subject to most exacting scrutiny"). Political belief is not the
overt and immutable characteristic that race is, and we decline to
extend the Batson line of cases to this case.
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C
We now turn to two issues raised by Baldemar Villarreal.1
(1)
First, he argues that the prosecutor improperly commented on
his failure to testify. Baldemar quotes the prosecutor in closing
argument:
Watch as he moves to the back of the car as what in slow
motion almost looks like a dance of death begins . . .
Baldemar Villarreal has formed his intent. Watch . . .
as he talks and says something to his brother. We don't
know what he said. He does but we don't. He had turned
his head away from . . .." (Emphasis in original.)
At that point, Baldemar continues, "appellant objected that such
was an ``improper comment on the Defendant's election not to take
the stand.' The court sustained appellant's objection, instructed
the jury, and overruled appellant's motion for a mistrial."
(Emphasis ours.) Although "the Fifth Amendment prohibits a trial
judge, a prosecutor or a witness from commenting upon a defendant's
failure to testify in a criminal trial," United States v. Rocha,
916 F.2d 219, 232 (5th Cir. 1990) (citations omitted), "[a] comment
regarding defendant's Fifth Amendment rights must have a clear
effect on the jury before reversal is warranted." Id.
In this case, the court's instruction to the jury was plain,
simple and strong:
Ladies and gentlemen, you will disregard the comment of
Mr. Rivers. You will recall the Court had instructed
1
These arguments are adopted by Reynaldo Villareal by
reference in his brief in accordance with Fed. R. App. P. 28(i).
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you, you may not consider for any purpose the fact that
Defendants did not testify in this case, and you will
completely disregard Counsel's comment.
There is an "almost invariable assumption of the law that jurors
follow their instructions." Richardson v. Marsh, 481 U.S. 200, 206
(1987). The defendant points to no other comment concerning the
fact he did not testify. We do not think that Mr. Rivers's
comment, especially in view of the court's clear instruction to the
jury, had such a "clear effect on the jury" that reversal is
warranted.
(2)
Second, Baldemar argues that the government failed "to
disclose exculpatory and impeachment evidence [and] violated due
process." It appears to be his contention that such evidence might
show that the victim, Constable Darrell Lunsford, had been dealing
drugs. Consequently, the murdered officer may have been "acting
out of a desire to obtain drugs for his own dealing when he stopped
appellant," and not "in the performance of [his] official duties"
as required by the statute. Baldemar further contends that the
failure to disclose violated the requirement of Brady v. Maryland,
373 U.S. 83 (1963). Brady requires that "evidence that is both
favorable to the accused and material either to guilt or
punishment" be disclosed to the defendant. United States v.
Bagley, 473 U.S. 667, 674 (1985).
Following a pre-trial motion for such disclosure, the district
court made an in camera examination of material in the government's
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possession and concluded that the material "is not Brady material
and in my opinion it does not rise above the level of conjecture,
hearsay or speculation and does not reach the point that it would
place in question by admissible evidence whether Mr. Lunsford was
performing his official duties on the occasion of his killing."
The Supreme Court in United States v. Bagley, 473 U.S. 667, 682
(1985), stated that non-disclosed evidence is material "only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different. A ``reasonable probability' is a probability
sufficient to undermine confidence in the outcome." Id. We have
reviewed the material inspected in camera by the district court.
Bearing in mind the standard set by Bagley, we cannot say that
"there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different."2
D
We next turn to two additional issues presented by Reynaldo
Villarreal.
2
We point out that irrespective of the defendant's Brady
contentions, the facts remain that Lunsford stopped the Villareals
and Zambrano while in an official patrol car, while dressed in
uniform, and for investigation of a traffic violation. At the time
of the fatal struggle, Lunsford was acting as a law enforcement
official conducting an official investigation. Thus, even if
Lunsford's character and official conduct could be impeached, such
impeachment would not be material because at the time of the fatal
struggle, he was performing official duties.
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(1)
He argues that "Congress intended Section 848(e)(1)(B) to
apply only to ``triggermen' and those ``bosses' from whom the
triggermen get their orders; since there was no evidence that
Reynaldo Villarreal was either the triggerman or ordered the
killing, the evidence was legally insufficient to convict him." By
its plain language, § 848(e)(1)(B) applies to anyone who
"intentionally kills . . . [a] local law enforcement officer
engaged in . . . official duties." 18 U.S.C. § 2, part of the
indictment, has been held to apply generally to all federal
criminal statutes. United States v. Lennon, 751 F.2d 737, 741 (5th
Cir.), cert. denied, 471 U.S. 1100 (1985). It provides that
"[w]hoever . . . aids, abets, counsels, commands, induces or
procures [the] commission" of "an offense against the United
States" "is punishable as a principal." 18 U.S.C. § 2(a).
In reviewing a contention that the evidence in a case was
insufficient to convict, we "must examine all the evidence and
reasonable inferences in the light most favorable to the government
and determine whether a reasonable trier of fact could find that
the evidence establishes guilt beyond a reasonable doubt.
(Citation omitted.)" United States v. Rocha, 916 F.2d 219, 237
(5th Cir. 1990). A rational jury could have concluded that the
evidence in this case clearly showed that Reynaldo intentionally
joined in the struggle with Constable Lunsford and that he
substantially assisted in Baldemar's successful attempt to
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overpower and kill him. We have held that 18 U.S.C. § 2 imposes
criminal liability on anyone who associates in a criminal venture,
shares the principal's criminal intent, and engages in affirmative
conduct designed to make the venture succeed. See, e.g., United
States v. Medina, 887 F.2d 528, 532 (5th Cir. 1989). Thus, under
the indictment and the applicable law, the evidence is sufficient
to convict Reynaldo of aiding and abetting the crime specified in
Section 848(e)(1)(B)--the murder of Constable Lunsford.
Reynaldo further argues, however, that by including the
wording "counsels, commands, induces, procures or causes" as part
of the statute, Congress clearly intended that only ``bosses' or
those who led others to kill were subject to the statute and not
those who merely aided or abetted. We disagree. Although the
plain language of the statute clearly is intended to reach
"bosses" or "kingpins," as Reynaldo argues, it does not follow that
Congress intended aiders and abettors to be excused. To the
contrary, the language of the statute leads to the conclusion that
Congress intended that aiders and abettors would be held criminally
liable under the statute. Subsection (m) of the statute provides:
In determining whether a sentence of death is to be
imposed . . . the finder of fact shall consider
mitigating factors, including the following:
. . .
(3) The defendant is punishable as a principal (as
defined in section 2 of Title 18) in the offense, which
was committed by another, but the defendant's
participation was relatively minor . . ..
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21 U.S.C. § 848(m)(3) (emphasis ours). It is clear from this
wording that Congress had in mind 18 U.S.C. § 2 and its part in
criminal prosecutions, and that Congress did not intend to alter or
eliminate that role. We, therefore, reject Reynaldo's argument
that the statute does not reach his conduct in this matter.
(2)
Reynaldo argues that the trial court's denial of his motion
for severance violated his right to a fair trial and denied his
Sixth Amendment right to compulsory process because it precluded
his co-defendant's exculpatory testimony in his behalf. In this
respect, he first argues that he met the criteria of Fed. R. Crim.
P. 14 regarding a severance and that the trial court abused its
discretion in refusing to grant his motion for severance. Second,
he contends that the district court's denial of his motion for
severance denied his right under the Sixth Amendment to compel the
attendance of witnesses.
In addressing his first argument, we point out that "[i]t is
the general rule that persons who are indicted together should be
tried together. (Citations omitted)." United States v. Harrelson,
754 F.2d 1153, 1174 (5th Cir.), cert. denied, 474 U.S. 908 (1985).
We note that Reynaldo correctly acknowledges that the district
court's denial of a Rule 14 motion is reviewable only for an abuse
of discretion. "To demonstrate an abuse of discretion, a defendant
must show that he suffered specific and compelling prejudice
against which the district court could not provide adequate
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protection, and that this prejudice resulted in an unfair trial."
Id. "Exculpatory testimony [of co-defendants] in some cases may
provide the basis for a severance." United States v. Rocha, 916
F.2d 219, 231-32 (5th Cir. 1990). In order to establish a prima
facie case warranting severance for the purpose of introducing
exculpatory testimony of a co-defendant, the defendant must show:
(1) a bona fide need for the testimony;
(2) the substance of the testimony;
(3) its exculpatory nature and effect;
(4) that the co-defendant would in fact testify if severance
were granted.
Id. at 232. In this case, the district court, after examining
Baldemar under oath, stated that it was "not persuaded that the
witness would, in fact, testify; would, in fact, waive his Fifth
Amendment privileges." When reviewing rulings based on findings of
fact, we must accept the district court's findings of fact unless
they are clearly erroneous. See, e.g., United States v. Fernandez,
887 F.2d 564, 567 (5th Cir. 1989). When those findings are based
"primarily on oral testimony and the trial judge has viewed the
demeanor of the witnesses" "[t]he clearly erroneous standard is an
especially rigorous one. (Citation omitted.)" Id. In this case,
therefore, the trial court's finding is entitled to great
deference. We certainly cannot say that we are "left with the
``definite and firm conviction that a mistake has been committed.'"
Thus, the district court was not clearly erroneous and we affirm
the trial court's denial of Reynaldo's motion for severance based
on Fed. R. Crim. P. 14.
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We must, however, still deal with Reynaldo's contention that
the denial of the motion for severance deprived him of his Sixth
Amendment right to compel the attendance of witnesses--i.e., his
right to compel Baldemar's attendance at a separate trial.
Reynaldo argues that Baldemar would have testified that the three
men in the car were unarmed and had formed no plan to kill in the
event their marihuana load was discovered by authorities, that
during the stop by Lunsford, Reynaldo did not tell anyone to kill
the constable, that Reynaldo never touched the constable's gun, and
that the unintelligible conversation between him and Reynaldo at
the rear of the car before the attack on Lunsford concerned only
Reynaldo's having failed to bring his driver's license. Reynaldo
points to the sentencing phase of the trial where Baldemar
testified that his statement to Reynaldo at the rear of the car
concerned only Reynaldo's failure to bring his driver's license and
where, Reynaldo says, the jury "specifically found that Reynaldo
Villarreal did not intend to kill the officer." Thus, Reynaldo
argues, he suffered a disadvantage because of "his inability to
call Baldemar Villarreal, whose Fifth Amendment privilege included,
at the joint trial, the right not to take the stand."
We remain unconvinced. First of all, Reynaldo cannot
circumvent the district court's finding that Baldemar would not
have waived his Fifth Amendment right at a separate trial for
Reynaldo. Although Reynaldo argues that in the event of a separate
trial, Baldemar could not have refused to take the stand and, once
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there and having invoked the Fifth Amendment right, Reynaldo would
have been entitled to "all favorable inferences that the jury may
[have drawn] therefrom," we find this argument unavailing. The
videotape in evidence shows Reynaldo attacking Constable Lunsford
as soon as he was tackled by Baldemar and that Reynaldo repeatedly
kicked Constable Lunsford in the head after he was wrestled down.
The tape also shows that Reynaldo took Constable Lunsford's
billfold after Lunsford was shot. No possible testimony by
Baldemar is sufficiently ameliorating of Reynaldo's conduct that
its absence establishes the "specific and compelling prejudice"
necessary to demonstrate a violation of Reynaldo's right, under the
Sixth Amendment, to a fair trial. Furthermore, the jury's failure,
at the sentencing phase of the trial, to find Reynaldo guilty of
the aggravating factor of "intentionally kill[ing]" Constable
Lunsford is irrelevant to Reynaldo's Sixth Amendment claim: the
jury was subject to completely different considerations at
sentencing from those at the guilt phase of the trial. It may well
have decided that Reynaldo aided and abetted the intentional
killing of Constable Lunsford, and so was guilty of the offense
charged, but that his conduct was not so morally culpable that it
warranted the death penalty.
IV
Having considered the grounds of appeal presented by the
appellants, Baldemar Sambrano Villarreal and Reynaldo Sambrano
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Villarreal, we find no merit in them. For that reason, the
judgments of conviction of the district court are
A F F I R M E D.
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