UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BALDEMAR SAMBRANO VILLARREAL and REYNALDO SAMBRANO VILLARREAL, Defendant-Appellants.
No. 91-4607
United States Court of Appeals for the Fifth Circuit
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
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
II
The Villarreals were indicted on three counts: Count One, for violation of
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
[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
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
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
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
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.
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
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
D
We next turn to two additional issues presented by Reynaldo Villarreal.
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,
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
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 . . ..
(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
- a bona fide need for the testimony;
- the substance of the testimony;
- its exculpatory nature and effect;
- 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.
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
IV
Having considered the grounds of appeal presented by the appellants, Baldemar Sambrano Villarreal and Reynaldo Sambrano
A F F I R M E D.