F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 11 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-2067
GABRIEL RODRIGUEZ-AGUIRRE,
aka Refugio Rodriguez, aka Gabriel
Rodriguez, aka Gabriel Aguirre, aka
George Aguirre, aka Cuco Aguirre,
Defendant-Appellant.
Appeal from the United States District Court
for the District of N.M.
(D.C. No. CR-92-486-1-JC)
Charles L. Barth, Assistant United States Attorney (John J. Kelley, United States
Attorney, Laura Fashing, Special Assistant United States Attorney, with him on
the briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.
Paul J. Kennedy, Albuquerque, New Mexico, for Defendant-Appellant.
Before BALDOCK and BRORBY, Circuit Judges, and DANIEL, * District Judge.
*
The Honorable Wiley Y. Daniel, United States District Judge for the
District of Colorado, sitting by designation.
BRORBY, Circuit Judge.
A New Mexico federal jury convicted Gabriel Rodriguez-Aguirre
(hereinafter "Mr. Aguirre") on thirteen counts in a multi-defendant, multi-count
indictment. The United States District Court for the District of New Mexico
sentenced Mr. Aguirre to 360 months imprisonment and imposed a four million
dollar fine against Mr. Aguirre. Mr. Aguirre now appeals his convictions. We
exercise jurisdiction over his appeal pursuant to 28 U.S.C. § 1291.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Aguirre managed a family-run organization ("the Aguirre
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.
1996), 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.
In October 1992, a federal grand jury in the District of New Mexico
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returned a twenty-three count indictment against Mr. Aguirre and twenty-one
other defendants. The bill of indictment charged Mr. Aguirre with operating a
continuing criminal enterprise, conspiracy to distribute marijuana, and multiple
substantive counts of marijuana distribution and money laundering. Mr. Aguirre
pled not guilty to the charges against him, and proceeded to trial with his co-
defendants in January 1994.
The original trial of Mr. Aguirre and his 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. Id. Consequently, the trial judge declared a
mistrial. Id.
In August 1994, the United States obtained a superseding indictment
against Mr. Aguirre and nine of his co-defendants. The superseding indictment
charged Mr. Aguirre with running a criminal enterprise, conspiracy to distribute
marijuana and cocaine, and the unlawful importation of marijuana. The
superseding indictment also charged Mr. Aguirre with illicit investment, money
laundering, and multiple counts of marijuana and cocaine trafficking.
-3-
Mr. Aguirre moved to dismiss the continuing criminal enterprise and
conspiracy charges (Counts I and II, respectively), arguing prosecution on those
charges violated the Double Jeopardy Clause. Mr. Aguirre alleged he had already
been charged and convicted of the same conspiracy and continuing criminal
enterprise charges in a prior trial in the District of Kansas. This court affirmed
those convictions in 1990. See United States v. Armendariz, 922 F.2d 602 (10th
Cir. 1990), cert. denied, 502 U.S. 823 (1991).
In September 1994, the district court denied Mr. Aguirre's motion to
dismiss on double jeopardy grounds. Mr. Aguirre appealed the district court's
order, and on November 10, 1996, four days prior to the start of trial, we granted
Mr. Aguirre's petition for a writ of prohibition and stayed his prosecution on
Counts I and II of the superseding indictment pending the outcome of his
interlocutory appeal. 1 See Rodriguez-Aguirre v. Bunton, No. 94-2243 (10th Cir.
Nov. 10, 1994).
1
On appeal, we ultimately determined the Double Jeopardy Clause did not
prevent the government from trying Mr. Aguirre on Count I of the superseding
indictment. See Rodriguez-Aguirre, 73 F.3d at 1027. With respect to Count II of
the indictment, the government informed the court that it no longer sought to
prosecute Mr. Aguirre on this count. Id. at 1025. Consequently, we remanded
Count II so that the government could file a motion to dismiss this count with
prejudice. Id.
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In November and December 1994, the United States tried Mr. Aguirre on
the superseding indictment. Prior to trial, the court randomly selected a jury
panel of approximately 250 jurors from voter registration lists for the Roswell
Division of the District of New Mexico. The district judge excused 132 jurors
sua sponte after 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 selected for service, and
defense counsel learned the court had excused the remaining jurors.
On the first day of trial, prior to jury selection, Mr. Aguirre filed a motion
to stay the proceedings, and co-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, orally advised the court of United
2
Pursuant to the court's order that "one motion made by one defense
counsel applies to all [defendants] unless specifically excluded by that
defendant," all of the defendants adopted the motions of Mr. Aguirre and Mr.
Morales.
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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 that he or she knew one of the defendants.
Following Mr. Kennedy's comments, the court held an evidentiary hearing
at which Nancy Metzger, jury administrator for the Federal Court Clerk's office,
testified. Ms. Metzger stated the jury panel of approximately 250 jurors had been
randomly selected from voter registration lists. Ms. Metzger testified that 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 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 --
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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.
Mr. Aguirre also filed a motion to sever his trial from that of his co-
defendants on the first day of trial. Because the government's evidence focused
on the conspiracy count for which Mr. Aguirre was not on trial, Mr. Aguirre
alleged the evidence admitted against his co-defendants would have a "drastic
spillover effect" and prevent him from receiving a fair trial. The district court
orally denied Mr. Aguirre's motion to sever.
The trial of Mr. Aguirre and his co-defendants lasted approximately one
month. On December 15, 1994, the jury returned a verdict against Mr. Aguirre on
thirteen of the counts in the superseding indictment. Thereafter, Ms. Sonia
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Gallegos, a co-defendant of Mr. Aguirre who was also convicted, filed a motion
for a new trial. Mr. Aguirre adopted Ms. Gallegos' motion for a new trial
pursuant to the district court's standing order that "anything that anybody files the
others adopt." Mr. Aguirre argued, inter alia, he was entitled to a new trial
because of jury misconduct. Mr. Aguirre attached an affidavit from defense
investigator Kelly Owens to his motion. Mr. Owens testified that following the
trial, he questioned nine of the twelve jurors who convicted Mr. Aguirre. Mr.
Owens stated that one of the jurors, Linda Howard, admitted looking up the
dictionary definition of the word "distribution" on the first day of deliberations
and sharing its definition with the other jurors on the following day. According
to Mr. Owens, Ms. Howard stated the jurors discussed the meaning of
"distribution" as it related to the guilt or innocence of Ms. Gallegos. Mr. Owens
also testified juror Ronnie Warmuth claimed he had knowledge of another juror
researching the dictionary definition of the word "hypothecate." 3 In his post-trial
3
The United States attached affidavits from jurors Ronnie Warmuth and
Kerry Romine to the United States' response to Ms. Gallegos' motion for a new
trial. Mr. Warmuth stated:
On further reflection, I do not believe that a dictionary was used at
all. The only definition which was questioned regarded the word
"pontificate" as used by the witness John Henry Lee. Mr. Kerry
Romine, a fellow juror, knew the definition of this word and no
dictionary was consulted.
Similarly, Mr. Romine testified that although a question arose during
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motion, Mr. Aguirre contended this improper juror conduct prejudiced him and
entitled him to a new trial.
The district court denied Mr. Aguirre's motion for a new trial, rejecting the
defendants' claim of jury misconduct. The court concluded the word distribution
was one of common usage, and there was no showing any of the jurors relied
upon its dictionary definition or that the dictionary definition "made any
difference at all in the jury deliberations."
At sentencing, the district court adopted the factual findings and sentencing
guideline application in Mr. Aguirre's presentence report. Accordingly, the court
determined Mr. Aguirre had an offense level of 42, a criminal history category of
II, and a sentencing range of 360 months to life. The court imposed the following
sentence upon Mr. Aguirre: 60 months imprisonment on Count IV; 360 months
imprisonment on Counts V, VII, VIII, XV, and XVII; 240 months imprisonment
on Counts X, XI, XII, XVI, and XXII; and 120 months imprisonment on Counts
XIII and XIX. The court ordered the sentences to run concurrently. The court
also ordered Mr. Aguirre to pay the United States a fine of four million dollars on
deliberations as to the definition of the word "ponitificate," "the jury ... did not at
any time consult a dictionary."
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Count XV.
II. ISSUES RAISED ON APPEAL
Mr. Aguirre raises the following issues on appeal: (1) whether the trial
court abused its discretion in refusing to sever Mr. Aguirre's trial, failing to
provide the jury with adequate limiting instructions and refusing to exclude
evidence going only to the conspiracy; (2) whether the district court's pre-voir
dire jury selection procedures violated Mr. Aguirre's constitutional rights or his
rights under the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861-1878
(1994); and (3) whether the district court abused its discretion in refusing to grant
Mr. Aguirre a new trial based upon the jury's misconduct in looking up the
dictionary definitions of certain words.
III. ANALYSIS
A. Severance, Limiting Instructions, and Admission of Evidence
Mr. Aguirre claims the trial court's refusal to sever his trial, to give
adequate limiting instructions and to exclude evidence going only to the
conspiracy count severely prejudiced him. Mr. Aguirre contends the trial court's
errors entitle him to a new trial. We review each of Mr. Aguirre's contentions
separately.
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1. Severance
Mr. Aguirre first argues the district court abused its discretion by refusing
to sever his trial from that of his co-defendants. Mr. Aguirre asserts that in
proving its case at trial, the United States "necessarily focused on the conspiracy
alleged in count II of the indictment." According to Mr. Aguirre, the evidence
admitted as to the conspiracy was prejudicial to him. Because Mr. Aguirre was
not tried on the conspiracy count, he contends the district court should have
severed his trial from that of his co-defendants.
A decision to grant or deny severance is within the sound discretion of the
trial court and will not be disturbed on appeal unless there is an affirmative
showing of abuse of discretion. United States v. Sanders, 929 F.2d 1466, 1469
(10th Cir.), cert. denied, 502 U.S. 846 (1991). To establish an abuse of
discretion, the defendant must show actual prejudice resulted from the denial. Id.
Furthermore,
"[i]n deciding on a motion for severance, the district court has a duty
to weigh the prejudice resulting from a joint trial of co-defendants
against the expense and inconvenience of separate trials .... Neither
a mere allegation that defendant would have a better chance of
acquittal in a separate trial, nor a complaint of the 'spillover effect'
from the evidence that was overwhelming or more damaging against
the co-defendant than that against the moving party is sufficient to
warrant severance."
United States v. Cardall, 885 F.2d 656, 668 (10th Cir. 1989) (quoting United
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States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, 476 U.S. 1184
(1986)).
As an initial matter, we note Mr. Aguirre was properly joined for trial
pursuant to Fed. R. Crim. P. 8(b). Rule 8(b) permits the joinder of two or more
defendants "if they are alleged to have participated in the same act or transaction
or in the same series of acts or transactions constituting an offense or offenses."
Rule 8 is construed broadly to allow liberal joinder to enhance the efficiency of
the judicial system. United States v. Hopkinson, 631 F.2d 665, 668 (10th Cir.
1980), cert. denied, 450 U.S. 969 (1981). Here, the evidence at trial revealed Mr.
Aguirre and his co-defendants engaged in a common scheme or plan to distribute
drugs and launder illegally gained proceeds. Thus, the joinder of Mr. Aguirre was
proper and in accordance with Rule 8(b).
Under Fed. R. Crim. P. 14, the district court may grant a severance of
defendants if it appears joinder results in prejudice to a defendant. In Zafiro v.
United States, 506 U.S. 534, 539 (1993), the Supreme Court explained:
a district court should grant a severance under Rule 14 only if there
is a serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence. Such a risk might occur
when evidence that the jury should not consider against a defendant
and that would not be admissible if a defendant were tried alone is
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admitted against a codefendant. For example, evidence of a
codefendant's wrongdoing in some circumstances erroneously could
lead a jury to conclude a defendant was guilty. When many
defendants are tried together in a complex case and they have
markedly different degrees of culpability, this risk of prejudice is
heightened. Evidence that is probative of a defendant's guilt but
technically admissible only against a codefendant also might present
a risk of prejudice.
(Citation omitted.) Although a district court is more likely to determine separate
trials are necessary where the risk of prejudice is high, "less drastic measures,
such as limiting instructions, often will suffice to cure any risk of prejudice." Id.
Rule 14 leaves the determination of risk of prejudice and any remedy for such
prejudice to the sound discretion of the district court. Id. at 541.
Having thoroughly examined Mr. Aguirre's arguments, we do not believe
the district court abused its discretion in denying Mr. Aguirre's motion to sever.
As stated, all of the charges against the defendants involved a common scheme or
plan to distribute drugs and launder the illegally gained proceeds. With the
exception of defendant Sonia Gallegos, all of the defendants were relatives. The
evidence in this case, which involved acts occurring over an eight-year period,
was massive and interrelated. In denying Mr. Aguirre's motion to sever, the
district court appropriately determined considerations of judicial economy and
expediency outweighed the potential prejudice to Mr. Aguirre. The district court
concluded that limiting instructions would cure any unfair prejudice resulting
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from the introduction of evidence on the conspiracy count which tended to
implicate Mr. Aguirre. 4 Given the considerable discretion afforded the district
court under Rule 14, we cannot say it abused its discretion in refusing to grant a
severance.
2. Limiting Instructions
Next, Mr. Aguirre contends the district court's failure to provide the jury
with adequate limiting instructions caused him unfair prejudice. According to
Mr. Aguirre,
the limiting instructions given in this case were not only ineffective,
but were incorrect. The trial court consistently instructed this jury
that it was not to consider mountains of evidence against the
Defendant "as to count II." The trial court never understood that the
jury could not consider the evidence as to count II since the
Defendant was not charged in count II. The purpose of the limiting
instruction was to attempt to get the jury to disregard the evidence as
to the substantive counts [i.e., the counts other than conspiracy]....
Even if the [United States] could say that the limiting instructions
might have had some effect in this case, the jury simply was not
given the proper limiting instructions.
(Emphasis in original.)
4
In fact, the district court believed the use of limiting instructions "may
well work to Mr. Gabriel Aguirre's benefit, because by the time I get through
telling the jury, Now, you can't consider this as to Gabriel Aguirre, they may
somewhere down the line think I'm telling them to find him not guilty as to
everything."
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We agree that the district court provided the jury with improper limiting
instructions on several occasions. Rather than appropriately instructing the jury
not to consider evidence submitted to prove the existence of a conspiracy when
weighing Mr. Aguirre's innocence or guilt, the district court improperly advised
the jury not to consider the conspiracy evidence as to Mr. Aguirre on count II, the
conspiracy count. This was clearly erroneous; because the United States was not
trying Mr. Aguirre on Count II, the jury obviously could not consider the
conspiracy evidence against him on that count.
Unfortunately for the defense, Mr. Aguirre never objected to the
inadequacy of the district court's limiting instructions. 5 Errors that are not timely
raised in the district court are forfeited errors. United States v. Olano, 507 U.S.
725, 731 (1993). Fed. R. Crim. P. 52(b) provides a court of appeals with the
discretion to correct a forfeited error that is "plain" and "affect[s] substantial
rights." Olano, 507 U.S. at 731-32. In other words, we may correct the district
court's errors only if its errors were obvious and prejudicial. Id. at 734. For an
error to be prejudicial, "[i]t must have affected the outcome of the district court
5
Although counsel for Mr. Aguirre stated at oral argument that he believed
he had objected to the form of the district court's limiting instructions on at least
one occasion, our review of the record indicates Mr. Aguirre never objected to the
court's limiting instructions.
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proceedings." Id.
As noted, the improper limiting instructions given by the district court in
the case at bar were obviously erroneous. To determine whether Mr. Aguirre is
entitled to relief under Rule 52(b), we must ascertain whether the limiting
instructions were prejudicial to Mr. Aguirre. Mr. Aguirre cites four places in the
record where the district court allegedly admitted prejudicial evidence via an
inadequate limiting instruction. Our review of Mr. Aguirre's record cites
indicates the trial court actually gave sufficient limiting instructions on two of the
occasions he cites. 6 However, our careful review of the record reveals three
6
Mr. Aguirre objects to the limiting instruction given by the court prior to
the introduction of a number of documents seized from a home in Las Cruces,
New Mexico. The limiting instruction provided by the court was as follows:
[Y]ou may not consider any of these matters as -- insofar as Gabriel
Aguirre is concerned, insofar as it relates to, pertains to, Count II of
the superseding indictment. It is not, I repeat, not to be considered
as to Gabriel Aguirre.
We find this instruction to be in accordance with law.
Mr. Aguirre also objects to the limiting instruction provided by the court
prior to testimony concerning a notebook which purported to track various drug
transactions conducted by the defendants. This testimony was preceded by the
following instruction:
You will not consider this as to Gabriel Aguirre for any purpose....
Thank you. Do not consider this as to Gabriel Aguirre Count II at
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additional occasions where the trial court admitted evidence pursuant to an
inadequate limiting instruction. We now review the evidence admitted without a
proper limiting instruction to determine if it was prejudicial to Mr. Aguirre.
First, the trial court admitted, without sufficient limiting instructions, a
number of items (Exhibits 338 - 373) seized from the home of co-defendant Paula
Denogean. These exhibits included a duffle bag, an electric bill, two certificates
of title for trailers owned by Raul Hernandez, and a variety of other items.
However, only two of these exhibits pertained to Mr. Aguirre. Exhibit 355 was a
receipt from Columbus Electric Co-op addressed to Mr. Aguirre and Exhibit 359
was a 1099 interest form listing Mr. Aguirre and Ramon Aguirre as the interest
recipients. We find nothing prejudicial about any of the items seized from Ms.
Denogean's home. Indeed, we question whether a limiting instruction was even
necessary prior to the introduction of these exhibits.
all. Mr. Aguirre is not charged in Count II. Do not consider it as to
Mr. Aguirre.
Id. at 4139.) Although the second sentence of this instruction could appear
ambiguous standing alone, "[jury] instructions must be read and evaluated in their
entirety." United States v. Denny, 939 F.2d 1449, 1454 (10th Cir. 1991).
Looking at this instruction as a whole, we believe it properly informed the jury
not to consider the evidence against Mr. Aguirre for any purpose.
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The trial court also admitted, with an inadequate limiting instruction,
several items (Exhibits 301 - 314) seized from the home of Sonia Gallegos. The
following items pertained to Mr. Aguirre: (1) a 1991 Victoria's Secret calendar;
(2) a copy of a check stub made out to Mr. Aguirre from Old Republic
Companies; (3) a United States Treasury check made out to Mr. Aguirre and
containing a notation stating "VA comp."; (4) three checks made out to Mr.
Aguirre and Carlos Fernandez from Sunbelt Intergroup; and (5) a letter from the
"Third Circuit Court" referencing a civil judgment for DUI against Mr. Aguirre.
Our review of the testimony concerning these exhibits reveals nothing inherently
incriminating to Mr. Aguirre about the checks or the calendar. Although the
calendar contained entries referencing phone conversations and meetings between
Ms. Gallegos and Mr. Aguirre, the evidence at trial unambiguously established
Ms. Gallegos and Mr. Aguirre were romantically involved, and Ms. Gallegos was
involved in Mr. Aguirre's legal defense in the District of Kansas. Certainly the
jury expected Mr. Aguirre and Ms. Gallegos to have had regular contact with one
another. While the letter referencing Mr. Aguirre's DUI was somewhat
prejudicial to Mr. Aguirre, we do not believe its admission was sufficiently
egregious to have "affected the outcome of the district court proceedings." See
Olano, 507 U.S. at 734.
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Next, the district court preceded the admission of three tape recorded
conversations between Mr. Aguirre and several other individuals (Exhibits 816 -
818) with an improper limiting instruction. Unfortunately, we have no means of
determining whether the information on these tape recordings was prejudicial to
Mr. Aguirre. The transcripts of the conversations were not included as part of the
record on appeal. Without these transcripts, we have no means of determining
whether the district court properly admitted this evidence. See Neu v. Grant, 548
F.2d 281, 286 (10th Cir. 1977) ("party seeking reversal must establish that alleged
trial errors were prejudicial[;] [m]atters not appearing in the record will not be
considered by the court of appeals"; see also United States v. Hubbard, 603 F.2d
137, 139-40 (10th Cir. 1979) (court cannot review claim of error "where the
appellant has failed to bring up a transcript of the evidence bearing upon the
issue").
The district court also gave an improper limiting instruction prior to
testimony regarding a conversation between Danny Aguirre 7 and Oscar Gonzales.
Although the conversation pertained to a drug transaction, Mr. Aguirre was not
involved in the transaction or even mentioned by the testifying witness. Thus, we
7
Danny Aguirre is the nephew of Gabriel Aguirre.
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find Mr. Aguirre suffered no prejudice by the admission of this testimony.
Finally, the district court provided the jury with an improper limiting
instruction following the testimony of George Suthers, a farm manager for a horse
breeding operation. Mr. Suthers testified concerning the purchase of a number of
horses from his company by some "Mexican men." Mr. Suthers stated the
purchasers paid for the horses partially with cash, and Mr. Suthers identified Mr.
Aguirre as one of the Hispanic men who purchased horses from his company.
Because Mr. Aguirre was not charged with money laundering with respect to the
purchase of horses from Mr. Suthers, the trial court should have instructed the
jury not to consider Mr. Suthers' testimony against Mr. Aguirre as to the
substantive counts against Mr. Aguirre. However, we do not find Mr. Suthers'
testimony, without such a limiting instruction, to have seriously prejudiced Mr.
Aguirre.
Moreover, looking at all of the evidence admitted without a proper limiting
instruction together, we are unable to conclude the admission of this evidence
affected the outcome of Mr. Aguirre's trial. An overwhelming amount of
evidence was introduced at trial that established Mr. Aguirre's guilt on the
substantive counts. In light of this overwhelming evidence, we conclude Mr.
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Aguirre was not prejudiced by the district court's improper limiting instructions.
3. Admission of Evidence
Mr. Aguirre contends the district court's admission of the testimony of three
of his former attorneys and the admission of evidence concerning the overt acts
listed in the conspiracy count severely prejudiced him. We review the district
court's admissions of evidence under an abuse of discretion standard. United
States v. Davis, 40 F.3d 1069, 1073 (10th Cir. 1994), cert. denied, 115 S. Ct.
1387 (1995).
Co-defendant Sonia Gallegos called attorneys Joseph Johnson of Topeka,
Kansas, Daniel Banks of Carlsbad, New Mexico, and Richard Winterbottom of
Albuquerque, New Mexico, to testify at trial on her behalf. These attorneys were
previously involved in representing Mr. Aguirre on federal drug charges in
Kansas and New Mexico. Through their testimony, Ms. Gallegos sought to
establish that her only involvement in the Aguirre organization was as an assistant
to Mr. Aguirre's legal defense team. Although Mr. Aguirre objected to the
testimony of his former attorneys on the grounds of prejudice and privilege, the
district court permitted their testimony.
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On appeal, Mr. Aguirre contends he was prejudiced by the testimony of his
former attorneys because they testified about his Kansas conviction on drug
charges and his defense strategies with respect to those charges. A thorough
review of the testimony of Mr. Johnson, Mr. Banks and Mr. Winterbottom reveals
Mr. Johnson and Mr. Winterbottom both testified concerning Mr. Aguirre's
conviction in Kansas on drug charges. All three of the attorneys testified
concerning the procedural posture of Mr. Aguirre's cases, as well as their
responsibilities with respect to his defense. In particular, the witnesses described
Ms. Gallegos' involvement in Mr. Aguirre's defense.
Although the district court could have done a better job in limiting the
scope of the testimony of Mr. Aguirre's former attorneys, we cannot say the court
abused its discretion in determining the probative value of the attorneys'
testimony outweighed the danger of unfair prejudice. See Fed. R. Evid. 403. The
attorneys' testimony was pivotal to the defense of Ms. Gallegos. The central tenet
of Ms. Gallegos' defense at trial was that her only involvement in the Aguirre
organization was as an assistant to Mr. Aguirre's legal defense team. Without the
testimony of Mr. Aguirre's former attorneys, Ms. Gallegos would have been hard
pressed to establish her defense. To the extent the testimony concerning Mr.
Aguirre's Kansas conviction caused him unfair prejudice, such prejudice was
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sufficiently quelled by the district court's closing instructions to the jury. The
district court specifically indicated in its closing instructions that the jury "must
not use [the Kansas] conviction as proof of the crime charged in this case." The
assumption that juries can and will follow the instructions provided by the trial
court "is fundamental to our system of justice." Cardall, 885 F.2d at 668. Thus,
we conclude the trial court did not abuse its discretion in permitting the testimony
of Mr. Aguirre's former attorneys.
Nor do we find the district court abused its discretion in allowing testimony
concerning the overt acts in the conspiracy count of the superseding indictment.
In his opening brief, Mr. Aguirre cites to seven places in the record where he
claims the district court improperly admitted certain prejudicial evidence
concerning the overt acts in the conspiracy count. 8 However, a review of the
8
Although Mr. Aguirre alleges other instances in which the trial court
admitted allegedly prejudicial evidence, he does not connect these instances to
specific cites. In the absence of essential references to the record in a party's
brief, the court will not "sift through" the record to find support for the claimant's
arguments. SEC v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992). Thus, we refuse
to determine the prejudicial effect, if any, of the uncited evidence.
Additionally, Mr. Aguirre's brief sets forth a list of 154 cites to places in
the record where Mr. Aguirre allegedly objected to the admission of prejudicial
evidence. However, Mr. Aguirre fails to connect any of these cites to specific
evidence he claims was prejudicial. Thus, to the extent Mr. Aguirre asks this
court to review the prejudicial effect of 154 pieces of evidence admitted
following Mr. Aguirre's cited objections, we politely decline his request. See
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record reveals Mr. Aguirre only objected at trial to the admission of evidence in
two of the seven areas to which he now cites. We refuse to consider the
prejudicial effect of any evidence that Mr. Aguirre failed to object to at trial. 9
See Fed. R. Crim P. 52(b). The evidence Mr. Aguirre opposed at trial was
testimony concerning a seizure of marijuana from Mr. Aguirre in 1985 and
Schaede v. Boeing Co., No. 95-3068, 1995 WL 736464, at *5 (10th Cir. Dec. 13,
1995) (unpublished decision) ("it is the appellant's responsibility to tie the salient
facts, supported by specific record citation, to [his] legal contentions." (Citing
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995).
9
As discussed earlier, Fed. R. Crim. P. 52(b) provides "[p]lain error or
defects affecting substantial rights may be noticed although they were not brought
to the attention of the court." (Emphasis added.) "The decision to correct a plain
error is within the 'sound discretion of the Court of Appeals, and the court should
not exercise that discretion unless the error "seriously affects the fairness,
integrity or public reputation of judicial proceedings."'" United States v. Gomez,
67 F.3d 1515, 1519 (10th Cir. 1995) (quoting Olano, 507 U.S. at 732), cert.
denied, 116 S. Ct. 737 (1996). In section III.A.2 of this opinion, we exercised our
discretion to review evidence admitted pursuant to inadequate limiting
instructions for plain error. We chose to review this evidence primarily because
Mr. Aguirre had requested the trial court to provide a limiting instruction with the
evidence. By requesting such an instruction, Mr. Aguirre had put the court on
notice that the evidence the government sought to admit was likely to prejudice
Mr. Aguirre.
We decline to review for plain error the allegedly prejudicial evidence
concerning the conspiracy that Mr. Aguirre failed to object to at trial. Our
rationale is simply that Mr. Aguirre never put the district court on notice that this
evidence was likely to prejudice him, and thus Mr. Aguirre never gave the court
an opportunity to evaluate the evidence's prejudicial effect. Of course, even if we
were to analyze this evidence for plain error, we strongly doubt its admission
"seriously affect[ed] the fairness, integrity or public reputation" of the
proceedings. See Gomez, 67 F.3d at 1519.
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evidence regarding the transfer and purchase of a number of race horses. With
respect to the testimony concerning the 1985 seizure of marijuana from Mr.
Aguirre, we note this testimony was preceded by a sufficient limiting instruction.
Thus, we find the district court did not abuse its discretion in permitting its
admission. As for the evidence concerning the purchase of the race horses, we
likewise find no error in its admission. This evidence neither implicated nor
prejudiced Mr. Aguirre. 10 Hence, we conclude the trial court did not abuse its
discretion in admitting any evidence pertaining to the overt acts in the conspiracy
count of the superseding indictment. 11
B. Jury Selection Process
Mr. Aguirre contends the district court's jury selection process violated his
rights under the Jury Selection and Service Act as well as his Fifth and Sixth
10
The government elicited testimony concerning the purchase and transfer
of certain race horses from United States Customs Special Agent Bailey. Agent
Hambrick testified as to the sale of a number of horses by Merrick-Allen Joint
Venture. Among the purchasers of these horses were Doloras Contreras, Raul
Martinez, Art Lopez, and Dol-Mel-Kim-Joh Racing Quarter Horses. Agent
Hambrick's testimony was innocuous to Mr. Aguirre.
11
Mr. Aguirre also claims he was prejudiced by the testimony of George
Suthers. Although Mr. Aguirre did not object to this testimony, he did request a
limiting instruction from the court. Thus, we believe Mr. Suthers' testimony is
entitled to plain error review. Unfortunately for Mr. Aguirre, we have already
determined Mr. Suthers' testimony did not severely prejudice Mr. Aguirre. See
supra at 21. Hence, the trial court did not abuse its discretion in admitting this
testimony.
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Amendment rights. 12
28 U.S.C. § 1867(d) requires all motions challenging compliance with the
Jury Selection and Service Act to be accompanied by a "sworn statement of facts
which, if true, would constitute a substantial failure to comply with the [Jury
Selection and Service Act]." In the recent appeal of Mr. Aguirre's co-defendant
and daughter, Doloras Contreras, we determined Ms. Contreras' claim under the
Jury Selection and Service Act was barred by the defendants' failure to
accompany their motions challenging the district court's jury selection procedures
with an adequate sworn statement as required by 28 U.S.C. § 1867(d). United
States v. Contreras, __ F.3d ___ (10th Cir. Mar 11, 1997). Here, as in Contreras,
Mr. Aguirre failed to file a sworn affidavit in support of his motions challenging
the district court's jury selection procedures. Consequently, Mr. Aguirre's Jury
Selection and Service Act claim is precluded.
Also in Contreras, we denied Ms. Contreras' Fifth and Sixth Amendment
challenges to the district court's jury selection procedures. See id. at ___.
Specifically, we determined Ms. Contreras could not establish a prima facie case
12
Mr. Aguirre has adopted the arguments of co-defendants Eleno Aguirre
and David Morales with respect to the jury selection issues.
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of a fair cross section violation or an equal protection violation, and we
concluded Ms. Contreras' Sixth Amendment impartial jury claim was without
merit. Id. For the reasons stated in Contreras, we likewise find no merit in Mr.
Aguirre's constitutional challenges to the jury selection procedures. 13
C. Jury Misconduct
Finally, Mr. Aguirre contends the district court erred by failing to grant a
new trial based upon the jury's misconduct in using a dictionary to look up the
definition of the word "distribution." 14 In the recent appeal of Eleno Aguirre, we
determined that although one juror researched the dictionary definition of
"distribution," there was no evidence that any of the jurors relied upon or attached
any significance to the dictionary definition. United States v. Aguirre, __ F.3d at
___ (10th Cir. Mar. 11, 1997). Consequently, we held the district court did not
abuse its discretion by failing to grant Eleno Aguirre a new trial based upon juror
misconduct. Id. at ___. Based on our reasoning in Aguirre, we likewise conclude
13
In Contreras, we also determined the district court did not violate Fed.
R. Crim P. 43 or 28 U.S.C. § 753(b) by failing to dismiss the 132 jurors in open
court and in the presence of the defendants. See id. at ___. To the extent Mr.
Aguirre asserts claims under Rule 43 or 28 U.S.C. § 753(b), these claims are
rejected pursuant to our reasoning in Contreras.
14
Mr. Aguirre has adopted the arguments of co-defendants David Morales
and Eleno Aguirre on the jury misconduct issue.
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the district court did not abuse its authority by failing to grant Mr. Aguirre a new
trial based on juror misconduct.
IV. CONCLUSION
Based on the foregoing reasons, we hereby AFFIRM the convictions of
Mr. Aguirre in all respects.
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