United States v. Reyes

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2007
No. 06-41457 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE ADAM REYES
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-96-15
Before HIGGINBOTHAM, WIENER, and GARZA, Circuit Judges.
PER CURIAM:*
A jury in the Eastern District of Texas convicted Jose Reyes of conspiring
to distribute and possess with intent to distribute drugs. Reyes appeals, arguing
that he should not have been tried in that district and urging error in the court’s
charge to the jury regarding drug quantity. We affirm.
I
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-41457
In late 2000, Fred Flores started a cocaine distribution business from his
home in Dallas. He began by recruiting customers/sub-distributors in Tennessee
and Arkansas. After developing these contacts, he located suppliers in Corpus
Christi and Dallas through his son. Various transporters hauled cocaine by
“pulling” gas tanks from cars or trucks and loading the tanks with drugs, then
driving from Texas to Tennessee or Arkansas and periodically bringing back
cash. Flores hired individuals to help remove the gas tanks, from which he
subsequently pulled purchase money before placing more cocaine in the tanks
and re-installing them for transport.
Jose Reyes lived down the street from Flores. He and a man named
Arthur Gonzalez pulled gas tanks at Flores’s house in Dallas and re-installed
them, on at least two occasions. According to some testimony, Reyes was a very
minor participant who worked mostly as a bricklayer, and Reyes never saw or
handled the drugs – he simply pulled down the tanks, saw the cash inside,
waited outside while drugs were put in the tank inside the house, and then re-
installed the tank. Reyes himself testified that he had never seen drugs, that he
removed just two tanks, and that when he saw someone drilling a hole in one
tank he became suspicious and never went to the house again. According to
other testimony, however, Reyes handled the drugs in the tanks.
The Government indicted Reyes and fifty-six co-defendants in the
Sherman Division of the Eastern District of Texas, alleging a conspiracy to
distribute and possess with intent to distribute drugs in violation of 21 U.S.C.
§ 846 and a conspiracy to launder money in violation of 18 U.S.C. § 1956. Reyes
was indicted only on the distribution count. Reyes moved to transfer venue to
the Northern District of Texas, relying upon the Sixth Amendment and the Jury
Selection and Service Act and requesting expert assistance in developing his
claims. The court denied the motion.
2
No. 06-41457
Reyes went to trial, arguing that he did not know that Flores was moving
drugs in the vehicles. On the second day of deliberations, the jury twice stated
it was deadlocked. The court delivered an Allen1 charge. On the third day, the
jury asked whether an individual who becomes aware of an illegal act while the
act is going on, and then completes the act, is part of the conspiracy. The court
referred the jury to the court’s previous instructions. Soon after, the jury
convicted Reyes.
II
Reyes makes a generalized argument, citing the Sixth Amendment, that
he should have been tried in the Northern District of Texas, which includes
Dallas, because the majority of the conspiracy occurred there. However, for a
“continuing offense” like conspiracy, 18 U.S.C. § 3237(a) provides that venue is
proper in any district in which the crime was “begun, continued, or completed.”
And the Supreme Court has found that rule consistent with the Sixth
Amendment and Article III, holding that “the locality of a crime shall extend
over the whole area through which force propelled by an offender operates.”2
Specifically for conspiracy, “venue is proper in any district where the agreement
was formed or an overt act occurred.”3 This is true even if the defendant never
set foot in that district.4 Here, even though there is no evidence that Reyes ever
traveled to the Eastern District, there is plenty of evidence that his co-
conspirators drove drugs through the Eastern District on the way to Tennessee
1
Allen v. United States, 164 U.S. 492 (1896).
2
United States v. Johnson, 323 U.S. 273, 275 (1944).
3
United States v. Caldwell, 16 F.3d 623, 624 (5th Cir. 1994) (citing United States v.
Winship, 724 F.2d 1116, 1125 (5th Cir. 1984) and United States v. Pozos, 697 F.2d 1238, 1244
(5th Cir. 1983)).
4
See United States v. Acosta, 763 F.2d 671, 681 (5th Cir. 1985).
3
No. 06-41457
and Arkansas, and one co-defendant was arrested in the Eastern District with
15 kilograms of cocaine on him. Venue in the Eastern District was proper.
III
Reyes offers other arguments for why he should have been tried in the
Northern District. He urges that the Sixth Amendment’s “fair cross-section”
requirement, which the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq.,
essentially embodies, was violated in his case because the Dallas Division of the
Northern District is about 50% white and 27% Hispanic, whereas the Sherman
Division of the Eastern District is about 78% white and 10% Hispanic,5 and he
is Hispanic. He also argues that the Northern District has more fully complied
with the Act’s requirement that each district include as many citizens as
possible6 in its jury list because it supplements voter lists with driver’s license
lists, whereas the Eastern District uses only voter lists, and the use of driver’s
license lists increases minority (presumably Hispanic) participation. And all of
this, he states summarily, violates the Equal Protection Clause.
Reyes’s first argument does not address the cross-section principle
because, under that principle, one does not compare the demographic profile of
one district to that of another. Rather, one looks only to the district at hand to
see if venires are fairly representative of the jury-eligible population of that
district.7 In any event, Reyes has failed to show that Eastern District venires
are not representative of the jury-eligible population because he makes no
5
Jurors for cases in those districts are drawn solely from the divisions in which each
case is tried.
6
The Act states that the principal source of names for random juror selection should
be either “the voter registration lists or the lists of actual voters,” 28 U.S.C. § 1863(b)(2), but
the Act also states that each district’s plan “shall prescribe some other source or sources of
names in addition to voter lists where necessary to foster the policy and protect the rights
secured [by the Act].” Reyes argues that the Eastern District’s plan violates this “plain
language.”
7
See Duren v. Missouri, 439 U.S. 357, 364-65 (1979).
4
No. 06-41457
attempt to show under-representation of eligible Hispanics in the Eastern
District, in his venire or any other, compared to the general population of the
district. He has shown no cross-section problem. To the extent that Reyes can
and has raised a claim under the Jury Selection and Service Act, he has not
shown that the Eastern District’s juror plan violates the Act because the Eastern
District is not required to use driver’s license lists,8 contrary to Reyes’ claim, and
again because he has failed to show under-representation of Hispanics compared
to the general population. Finally, an Equal Protection violation requires
something more than a valid cross-section claim; it requires a showing of
purposeful discrimination,9 which Reyes has not shown in this case.
IV
Reyes argues that the court abused its discretion in denying his motion for
appointment of an expert to evaluate the jury selection process in the Eastern
District. For this proposition he cites a Ninth Circuit case where the court
reversed the district court’s refusal to appoint an expert to analyze a cross-
section claim.10 This case differs from Rodriguez-Lara. In Rodriguez-Lara, the
Plaintiff adduced evidence indicating that Hispanics were substantially under-
represented in the applicable jury pool and also provided a plausible theory –
the exclusive use of voter lists – to explain their systematic exclusion from that
pool;11 Reyes failed to do the same. Reyes did not establish the need for an
expert because his claims had no potential merit, as described above, which is
8
See, e.g., United States v. Brummitt, 665 F.2d 521, 529 (5th Cir. 1981) (explaining that
the “failure of an identifiable group to register and vote does not render invalid the selection
of jurors from a voter registration list”).
9
Castaneda v. Partida, 430 U.S. 482, 493 (1977).
10
See United States v. Rodriguez-Lara, 421 F.3d 932, 946 (9th Cir. 2005).
11
Id. at 937-38.
5
No. 06-41457
far different from Rodriguez-Lara where the defendant himself made clear that
with the aid of an expert, his claims might bear fruit.12
V
Finally, Reyes argues that, under Apprendi,13 the jury should have decided
the amount of drugs he was responsible for. That is, he asserts, the jury should
have made an explicit finding in kilograms. This matters, he continues, because
there was a factual dispute as to when he joined the conspiracy. However, Reyes
was indicted under § 846 for conspiring to violate § 841(b)(1)(A) by conspiring to
distribute or possess with intent to distribute drugs in the amounts specified by
§ 841(b)(1)(A). Additionally, Count 1 of the superceding indictment charged
Reyes and his co-conspirators with conspiracy to “distribute or possess with
intent to distribute . . . 5 kilograms or more of a mixture or substance containing
a detectable amount of cocaine . . . and 500 grams or more of a mixture of [sic]
substance with methamphetamine . . . .”14 And the jury found him guilty of that,
pursuant to jury instructions mirroring the indictment.15 He was indicted with,
and found guilty of, the relevant amounts despite the judge’s rejection of Reyes’s
requested instructions that would have required the jury to determine the drug
quantity. Section 841(b)(1)(A) provides a ten-year mandatory minimum, which
12
Id. at 946 (“Although Rodriguez has not established a prima facie case for a fair
cross-section violation, he has made a substantial showing sufficient to warrant further
inquiry.”).
13
Apprendi v. New Jersey, 530 U.S. 466 (2000).
14
United States v. Flores, Superceding Indictment (filed Nov. 1, 2005).
15
The jury instructions required the jury, inter alia, to find beyond a reasonable doubt
“[t]hat two or more persons made an agreement to commit the crime of manufacture, distribute
or possess with intent to manufacture, distribute or dispense . . . 5 kilograms or more of a
mixture or substance containing cocaine . . . 500 grams or more of a mixture or substance
containing methamphetamine . . . .”
6
No. 06-41457
applies even after Booker,16 and Reyes received only a 78-month sentence after
a safety valve sentence reduction. His sentence was therefore proper.
AFFIRMED.
16
See United States v. Farias, 481 F.3d 289, 291 n.4, 292 (5th Cir. 2007) (explaining
the interaction between Booker and the minimums).
7