                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                 June 20, 2005
                     ______________________
                                                       Charles R. Fulbruge III
                          No. 03 - 50120                       Clerk
                      ______________________
UNITED STATES OF AMERICA

               Plaintiff - Appellee

               v.

ARMANDO GARCIA QUIROZ, also known as Mando; LUCIANO CHAPA;
FRANCISCO RIOS BALDERRAMA, also known as Kiko,

               Defendants - Appellants.

                     _______________________

  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
                        DISTRICT OF TEXAS
                          MO-00-CR-141-2
                     ______________________

Before Davis, Stewart, and Dennis, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

     Defendants-Appellants Armando Garcia Quiroz (Quiroz),

Francisco Rios Balderrama (Balderrama), and Luciano Chapa (Chapa)

appeal their convictions for Continuing Criminal Enterprise and

drug trafficking. For the reasons stated below, we affirm all

three convictions.

                                I.

     In September of 2001, the government indicted 29 individuals

in connection with the illegal activities of a criminal

organization known as “Los Tres de la Sierra”, i.e. “The Three


     *
      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this opinion should not be published and is not precedent except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.
from the Mountains”. The government charged that this

organization imported large quantities of marijuana from Mexico

and distributed it in the United States. Among those indicted

were Balderrama and Quiroz, two of the three leaders of the

organization and Chapa, one of the organization’s smugglers. The

indictment detailed several overt acts committed in the

furtherance of the continuing criminal enterprise, including: (1)

various instances of drug smuggling, and (2) the murders of

Israel Pena Ocon (Ocon) and Rigoberto Loera-Carillo (Loera),

allegedly ordered by Balderrama as punishment for stealing drugs

and profits from the organization.

     Balderrama and Quiroz were extradited from Australia,

pursuant to the Australia - U.S. Extradition Treaty in May of

2002.

     Defendants’ four week trial ended in September of 2002 and

resulted in guilty verdicts against Balderrama and Quiroz on the

following counts: one count of engaging in a continuing criminal

enterprise, in violation of 21 U.S.C. § 848 and § 846 (Count 1);

one count of conspiring to possess with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 846 (Count

2); one count of conspiring to import marijuana from Mexico to

the United States, in violation of 21 U.S.C. § 952(a), § 960, and

§ 963 (Count 3); eight counts of possession with the intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2 (Counts 5, 6, 7, 10, 12, 13, 14, & 17); one count of

                               -2-
conspiring to commit money laundering, in violation of 18 U.S.C.

§ 1956 (h) and 21 U.S.C. § 846 (Count 19); and four counts of

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(I)

and (2) (Counts 21, 22, 23, & 24). The jury found Chapa guilty of

one count of conspiring to possess with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 846 (Count

2); and one count of conspiring to import marijuana from Mexico

to the United States, in violation of 21 U.S.C. § 952(a), § 960,

and § 963 (Count 3).

     On January 23, 2003, the district court sentenced Balderrama

and Quiroz to mandatory life terms for Count 1, life imprisonment

on Count 3, 480 months on Counts 5, 6, 7, 10, 12, 13, 14, and 17,

and 240 months on Counts 19, 21, 22, 23, 24, all to run

concurrently. Chapa was sentenced to 120 months on Counts 2 and

3, to run concurrently.

     Defendants raise a number of issues on appeal, which we

discuss below.

                              II.

     During trial, Defendants objected to the jury venire as

violating the 6th Amendment to the Constitution and the Jury

Selection and Service Act of 1968, 28 U.S.C. § 1861, in its

failure to represent a fair cross-section of the community. They

argue that, because the jury venire is drawn from voter

registration lists and Hispanic voters register in substantially


                               -3-
lower numbers than non-Hispanics in the Midland area, the number

of Hispanics in the jury venire is not a fair representation of

the number of jury-eligible Hispanics in the community. The

district court found that Defendants failed to make a prima facie

showing that the jury selection process violated the fair cross-

section requirement.

     In order to establish a prima facie case of violation of the

fair cross-section requirement, a defendant must demonstrate the

following:

     (1)   that the group alleged to be excluded is a
           “distinctive” group in the community;
     (2)   that the representation of this group in venires from
           which juries are selected is not fair and reasonable in
           relation to the number of such persons in the
           community; and
     (3)   that this underrepresentation is due to systematic
           exclusion of the group in the jury-selection process.

U.S. v. Olaniyi-Oke, 199 F.3d 767, 773 (5th Cir. 1999), citing

U.S. v. Alix, 86 F.3d 429, 434 (5th Cir. 1996). The parties’

debate concerns the second prong of this test, i.e. whether the

representation of Hispanics in the federal jury pool is “fair and

reasonable” in relation to the population of jury eligible

Hispanics in the Midland community.

     Both parties accept the district court’s finding that an

11.22% disparity exists between the number of Hispanics in the

federal jury pool and the number eligible for jury duty in the

Midland area.

     Given the disparity of 11.22%, we agree with the district


                                -4-
court that Defendants failed to prove their prima facie case of a

6th Amendment fair cross-section violation because they are

unable to demonstrate that the disparity is more statistically

significant than the 11% disparity which this Court found

insufficient to sustain a claim of racial discrimination in

Thompson v. Sheppard, 490 F.2d 830 (5th Cir. 1974). Appellants

attempt to distinguish Thompson by arguing that it is a civil

rights case involving claims of subjective intentional racial

discrimination. We, however, reject this description of Thompson

and, consequently, this distinction. In Thompson, black citizens

of Dougherty County, Georgia brought a § 1983 action to enforce

their right to serve on grand and petit juries in the courts of

that county. The Court distinguished Thompson from previous cases

where officials selected potential jurors non-randomly and

without objective criteria. In Thompson, the disparity resulted

despite the use of objective criteria and random selection.

Thompson, 490 F.2d at 832 - 33. The jury pool in Thompson was

“compiled by a computer process which automatically selected

every fourth name on the voter list”. Id. at 831. The jury

selection process in the Midland division is similarly random, as

described by the district court in its February 3, 2003 Order.

     In holding that the jury system in Thompson was not

discriminatory, the Court stated:

     We conclude that a jury list drawn objectively,
     mechanically, and at random from the entire voting list of a
     county is entitled to the presumption that it is drawn from

                               -5-
     a source which is a fairly representative cross-section of
     the inhabitants of that jurisdiction.

Id. at 833. In Thompson the discrepancy between the number of

African Americans in the community and those in the jury wheel

was 11%. Because we decline to find that a disparity of 11.22% is

significant where one of 11% is not, we affirm the district

court’s conclusion that Appellants failed to make a prima facie

showing that the jury venire violated the fair cross-section

requirement of the Sixth Amendment and the Jury Service and

Selection Act.

                              III.

     Appellant Balderrama argues that (1) the indictment was

insufficient and constructively amended by the district court to

charge Defendants for the murders of Loera and Ocon, and (2) that

charging Defendants with those murders violates the Specialty

Doctrine and the terms of the extradition from Australia.

     The record and trial transcript belie Balderrama’s argument

and reflect that Defendants were never charged with these murders

nor did the jury impermissibly punish Defendants for these

murders.1 Indeed, the district court specifically instructed the

     1
      While the fact that Defendants were never charged with
murder is sufficient to answer all of these arguments, it is also
relevant to note that Defendants have no standing to assert their
Specialty Doctrine Argument. This Court’s decision in U.S. v.
Kaufman, 874 F.2d 242, 243 (5th Cir. 1989), precludes a criminal
defendant from arguing the Specialty Doctrine when the asylum
state, here Australia, has failed to raise an objection to the
proceeding. Australia never objected to the trial or sentencing,
thus Balderrama’s Specialty Doctrine argument must fail.

                               -6-
jury that Defendants were not charged with murder.2

                               IV.

     We are unpersuaded by Appellants Balderrama and Quiroz’s

argument that the district court erred in admitting extrinsic

evidence of the murders (and additionally, the kidnapping of

Sabino Gardea) during trial. Under this Circuit’s decision in

U.S. v. Abrego, 141 F.3d 142, 174 (5th Cir. 1998), evidence of

murders in furtherance of a continuing criminal enterprise is

intrinsic, rather than extrinsic, evidence because the murders,

as overt acts, “are themselves part of the act charged”. U.S. v.




     2
      In explaining the prosecution’s burden, the district court
told the jury the following:

     ...They’ve got to prove their case beyond a reasonable
     doubt. They’ve alleged conspiracies here. They’ve alleged
     that thee killings had something to do with the
     conspiracies.
          In the end, you have to decide whether the Government
     is going to prove these conspiracies beyond a reasonable
     doubt. If the Government doesn’t prove it, then the
     Defendants must be acquitted. If the Government does prove
     it, then the Defendants must be found guilty. But you decide
     if they prove it. Nobody else... We’re not here to decide -
     - We’re not trying a murder case. There is no murder count
     in this indictment. We’re not trying a murder case. We’re
     trying a conspiracy case... The Government must prove a
     conspiracy here. They say these killings had something to do
     with the conspiracy. You will decide if that’s the case or
     not. But there is no murder count in this indictment and
     those matters would have been reserved for the state and the
     state has not brought an indictment in that regard.

Emphasis added, Record, Vol 26 at 1242 - 1243.


                               -7-
Miller, 116 F.3d 641, 682 (2nd Cir. 1997). The government

presented evidence that Balderrama ordered these murders in

retaliation for marijuana being stolen from the Los Tres de la

Sierra organization. The district court, therefore, did not abuse

its discretion in admitting the evidence of the murders and

kidnapping.

                               V.

     The record does not support Balderrama’s next argument that

the district court failed to give a limiting instruction

concerning the appropriate treatment of co-defendants’ guilty

pleas. The district judge charged the jury as follows:

          Accomplice - Co-Defendant - Plea Agreement: In this
     case, the government has called as witnesses alleged
     accomplices, some of whom are named as co-defendants in the
     indictment, with whom the government has entered into plea
     agreements providing for the dismissal of some charges and
     possible lesser sentences than the co-defendants would
     otherwise be exposed to for the offenses to which the co-
     defendants plead guilty. Such plea bargaining, as it is
     called, has been approved as lawful and proper, and is
     expressly provided for in the rules of this court.
          An alleged accomplice, including one who has entered
     into a plea agreement with the government, is not prohibited
     from testifying. On the contrary, the testimony of such a
     witness may alone be of sufficient weight to sustain a
     verdict of guilty. You should keep in mind, however, that
     such testimony is always to be received with caution and
     weighted with great care. You should never convict a
     defendant upon the unsupported testimony of an alleged
     accomplice unless you believe that testimony beyond a
     reasonable doubt. The fact that an accomplice has entered a
     plea of guilty to the offense charged is not evidence of
     guilt of any other person.

5 R. 001096 - 97. Balderrama provides no reason, nor are we able

to conceive of one, as to why this limiting instruction does not


                               -8-
objectively inform the jury what weight it should give to co-

defendants’ guilty pleas.

                               VI.

     Balderrama argues next that the district court’s failure to

provide him with an interpreter to aid him in understanding the

proceedings and assisting his lawyer in his defense rendered the

trial fundamentally unfair.

     The record demonstrates that, in addition to a lawyer who

spoke some degree of Spanish, an interpreter was assigned to sit

between, and assist, Balderrama and Quiroz during the trial.

While Balderrama argues that having to share an interpreter with

Quiroz inhibited the openness of his communication with his

attorney, given the nature of the joint defense Defendants

coordinated, the district court provided Balderrama with a

sufficient interpreter under the Court Interpreter’s Act, 28

U.S.C. § 1827(d)(1) and this Court’s holding in U.S. v. Tapia,

631 F.2d 1207 (5th Cir. 1980). Also, Balderrama’s claim fails for

the additional reason that he demonstrates no prejudice which

resulted from the lack of an interpreter assigned solely to him.

                              VII.

     Additionally, Balderrama and Quiroz raise the following

arguments: the government committed prosecutorial misconduct when

it moved to consolidate indictments MO-00-CR-141 and MO-010-CR-

128; the district court erred in not holding a hearing on

Defendants’ motion for a new trial based on the newly discovered

                               -9-
evidence that a government witness, Rosie Soles, perjured herself

during the trial; the district court committed error in admitting

hearsay statements not in furtherance of the conspiracy

(specifically a song that Arturo Sanchez wrote for Balderrama and

Quiroz about the marijuana operation); and that the district

court erred in granting the government’s motion in limine to

prevent counsel from asking any witness if other witnesses were

lying.

     After a careful review of the record and the briefs, we are

satisfied that none of these arguments have merit.

                             VIII.

     Chapa argues that the district court erred when it held that

he was barred from relitigating his motion to suppress evidence

the government obtained following a traffic stop of his vehicle

and seizure of drugs. The district court ruled that the denial of

the identical motion in a previous trial collaterally estopped

Chapa from retrying this issue. The only new evidence Chapa

sought to provide was information regarding traffic patterns

which, Chapa argues, would undermine the credibility of the

Border Patrol agent’s testimony. We are unpersuaded that such

evidence could affect the Court’s finding that the Border Patrol

had reasonable suspicion to stop and search Chapa’s vehicle and

to detain Chapa. Because Chapa is unable to demonstrate that the

result would have likely been different had he been permitted to

retry his motion, we must reject this argument.

                              -10-
                               IX.

     For these reasons, and the reasons stated in the district

court’s November 9, 2004 “Order Denying Defendant’s Motion to

Reconsider Previous Denial of Defendant’s Motion to Reconsider”,

2004 U.S. Dist. LEXIS 22712, No. MO-00-CR-141 (W.D. Tx. November

9, 2004), we affirm the convictions of Appellants Balderrama,

Quiroz, and Chapa.




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