USCA1 Opinion

June 8, 1994

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 93-1193
UNITED STATES OF AMERICA,
Appellee,
v.
RENE M. PION,
Defendant, Appellant.
__________________

ERRATA SHEET
The opinion of this
as follows:

Court, issued June 1, 1994,

Page 11, line 22, should read:

best . . .

. . .

is amended

Jury Wheel are the

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1193
UNITED STATES OF AMERICA,
Appellee,
v.
RENE M. PION,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Aldrich, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________

Benjamin D. Entine for appellant.

__________________
Geoffrey E. Hobart, Assistant United States Attorney, with w
___________________
A. John Pappalardo, United States Attorney, and George W. Vi
___________________
______________
Assistant United States Attorney, were on brief for appellee.
____________________
June 1, 1994
____________________

CYR, Circuit Judge.

After a two-week trial, Rene

Pion

CYR, Circuit Judge.

_____________
was convicted

on three cocaine-related charges

concurrent mandatory minimum

21 U.S.C.

and sentenced to

ten-year prison terms, pursuant

841(b)(1)(A)(ii).1

to

We address each of Pion's appel-

late claims.
A.
A.

Entrapment
Entrapment
__________

Without challenging the jury instruction on entrapment,

Pion

contends that the evidence compelled jury acceptance of his

entrapment defense.

We therefore inquire whether a rational jury

could have found, beyond

predisposed to

commit the particular

government did not

States,
______
States
______

a reasonable doubt, either that

crime charged or
__

induce him to commit it.

___ U.S. ___, ___, 112 S.

v. Reed, 977 F.2d 14, 18
____

light most favorable to

that the

Jacobson v. United
________
______

Ct. 1535, 1540 (1992); United

______
(1st Cir. 1992).

Viewed in the

the verdict, United States v.

_____________

922 F.2d 914, 923 (1st Cir.

he was

Martinez,
________

1991), there was ample evidence that

Pion was not induced to commit any crime.

The only

inducement to

which he

points on

appeal is

that the government informant, Esteban Mendoza, plied and enticed

him with a
Pion's

"vital" supply of

restaurant.

subjected him
caine.

El Presidente beer

According

to "rigid

to Pion,

economic coercion"

the

for resale
government

to traffick in

Not only was this fanciful claim not preserved below,

at

thus

co-

it

____________________

1Count I charged conspiracy to possess cocaine, with intent

to distribute, see 21 U.S.C.
846; substantive counts II and III
___
charged possession of cocaine for distribution, and distribution
of cocaine, respectively, see id.
841(a)(1) & (b)(1)(A)(ii).
___ ___
2

is squarely contradicted by his testimony at trial.

ly, the
cases;

El Presidente beer
none of it

unhesitatingly

Mendoza supplied Pion

delivered until more than

indicated his willingness

the first one-half kilogram of cocaine.

ipated

in a

another three
"promise" of

totalled nine

two weeks after he

to supply Mendoza with

Thereafter, Pion partic-

three-kilogram transaction

(and agreed

kilograms) with no inducement

cocaine profits.

Additional-

Thus, the

to arrange

except the implicit

record reveals

ample

support for a jury finding that Pion was no "unwary innocent" but

an "'unwary criminal' who readily availed himself of the opportunity to perpetrate

the crime."

U.S. 58, 63 (1988).

B.
B.

Coconspirator Statements
Coconspirator Statements
________________________

Mathews v.
_______

United States,
_____________

485

Pion claims
sible error

that the

by admitting into evidence

pertaining to two separate

one-half

district court committed

kilogram

three-kilogram transaction

coconspirator statements

conspiracies:

transaction on

the first

June 4,

on July 3.2

rever-

1991;

involving a
the second

According to

Pion, the

only possible link between the two transactions was the red Honda

automobile driven on June 4 by coconspirator "Rafael," purportedly Pion's

cocaine supplier,

Tejada on July 3.

and by coconspirator

Since Pion does

Christobalina

not suggest that the district

____________________

2Pion's entire effort to identify the challenged coconspirator statements is as follows:

"The admission of alleged coconspirators [sic] statements from the second conspiracy against
Pion, in order to purportedly prove his involvement in the
alleged first conspiracy, and vice-versa, was therefore error and
was irreparably prejudicial to Pion."
3

court departed from the procedure required under United States v.

_____________
Petrozziello,
____________
v.
U.S.

548 F.2d 20, 23 (1st Cir. 1977), and United States

_____________

Ciampaglia, 628 F.2d 632,

__________
956

(1980), we

review

638 (1st Cir.),

the conspiracy

cert. denied, 449

____ ______
finding

for clear

error, United States

_____________
1992).

v. McCarthy,
________

961 F.2d 972,

977 (1st

Cir.

We find none.
The government

Honda, registered

to

quite correctly

Tejada, was

the

suggests that the

"most obvious

red

piece

of

circumstantial evidence" linking the two transactions to the same

conspiracy.
Pion, were

Equally conspicuous,
the three

notably himself,

yet

participants common to

"Rafael" and Tejada, and

to traffick in cocaine.
C.
C.

however,

overlooked by

both transactions,

their tacit agreement

Nothing more was required.

The Transcripts
The Transcripts
_______________
Without

identifying the

challenges, as ambiguous

translations

at issue,

and inaccurate, government

Pion

transcripts

containing English translations of Spanish conversations recorded

by Mendoza,
with

Pion

the

government informant,

and other

conspirators.

during various
Since

Pion did

meetings

not argue

before the district court that the transcripts were ambiguous, we

_________
review

only for plain error.

See United States v. Mejia-Lozano,

___ _____________
____________

829 F.2d 268, 272 (1st Cir. 1987); Fed. R. Crim. P. 52(b).
Even though

Pion's failure to identify

statements severely hinders

scripts are not

included in

App. P. 10(b), 11(a),

review, especially

the challenged
since the

the appellate record,

we can say with confidence

4

tran-

see Fed.
___

R.

that there was

no error, plain
that the

or otherwise.

The thrust

transcripts are susceptible to

of this contention is

two radically different

interpretations:

one innocent (the recorded conversations merely

concerned beer);

the other criminal (cocaine

record precludes

any

minted theory,
the

suggestion of

that beer

error based

as the evidence (including

recorded conversations
was simply the

trafficking).
on this

newly

Pion's testimony) and

themselves established
means Mendoza

The

beyond doubt

used to gain

access to

Pion.
The district court

correctly followed the

transcript-

admission procedure set out in United States v. Rengifo, 789 F.2d

_____________
_______
975 (1st

Cir. 1986), by

obtain a

stipulated transcript.

objected to

first attempting,
See
___

without success,

id. at
___

983.

After

to

Pion

alleged inaccuracies in the authenticated government

transcript, he consented to its admission subject to the right to

_________
introduce his own transcript.
government

transcript

Notwithstanding the fact

do

so, Pion

objected when

did

The court thereupon

and gave

a cautionary

jury instruction.

that the court recognized

not offer

his own

the government attempted

admitted the

transcript.

his right to
Later,

to read portions

Pion

of its

transcript to

the jury.

The court

treated the objection

as a

motion to strike, and denied it.

There
Font-Ramirez,
____________
S.

Ct.

was no abuse

of discretion.

United States v.
______________

944 F.2d 42, 48 (1st Cir. 1991), cert. denied, 112

____ ______

954 (1992)

(no

"abuse of

discretion"

where defendant

neither offered transcript nor indicated specific inaccuracies in

5

government transcript); accord United States v. Devous, 764 F.2d

______ ______________
______
1349, 1355 (10th Cir. 1985).
D.
D.

Juror Misconduct
Juror Misconduct
________________
The district

inquiry

court's decision to conduct

to resolve a report

within its broad discretion.

54,

59 (1st Cir. 1986).

view
tained

plainly reveals

of improper juror

contact was well

See United States v. Reis, 788 F.2d

___ _____________
____

The

transcript of the in camera inter__ ______

that the

to whether the juror

an in camera
__ ______

matters discussed

had been approached

directly per-

and whether he

could be impartial.
E.
E.

Jury Composition
Jury Composition
________________
Pion claims a deprivation of his constitutional

under
be

the Sixth Amendment to

tried by a

section of the

petit jury
community.3

right,

the United States Constitution, to

drawn from

a representative

See Taylor v.
___ ______

cross -

Louisiana, 419
_________

U.S.

____________________

3We do not share the view embraced by our brother, relating

to 28 U.S.C.
1867.
See infra at pp. 16-19.
First, it is
___ _____
unnecessary to address section 1867, because the merits dispute
properly raised, briefed and argued by the parties, and carefully
considered by the district court, presents an insurmountable
barrier for appellant. See, e.g., Norton v. Mathews, 427 U.S.
___
____ ______
_______
524, 532 (1976); In re Unanue Casal, 998 F.2d 28, 33 (1st Cir.
___________________
1993). Second, the jurisdictional question our brother poses is
anything but easy, having been squarely addressed in its present
aspect by but one court of appeals, see United States v. De Alba___ _____________
________
Conrado, 481 F.2d 1266 (5th Cir. 1973), which concluded
_______
contrary to the position taken in the concurring opinion
that
constitutional challenges to jury composition are not barred by
______________
___
28 U.S.C.
1867(e). Id. at 1270, n.4. Although we take no
___
position on the jurisdictional question, the difficulty with the
position espoused by our brother is succinctly stated in the
legislative history of 28 U.S.C.
1867(e):
Subsection (e) makes clear that the procedures prescribed in this section are the
exclusive means for challenging compliance
___ ___________ __________
with the statute.
The bill, as amended by
____ ___ _______
____
6

522, 527

(1975).

The district court

statistical data indicating that

that 4.2% of

the residents

accepted, arguendo, Pion's

________

though the 1990 census reflects

within the Eastern

Division of

the

District of Massachusetts are Hispanic, only 0.99% of all persons

responding to the juror questionnaire

during 1992, and 0.80%

those appearing for juror orientation, were Hispanic.

of

These data

form the evidentiary base for Pion's sweeping claim that "Hispan-

ic minority members are so grossly underrepresented among federal

juries as to constitute

a 'systematic exclusion of the

group in

the jury-selection process'" (quoting Duren v. Missouri, 439 U.S.

_____
________
357, 364 (1979)).
the

fundamental ground that the

trict
any

The district court

Amended Jury Plan

of Massachusetts ["Jury Plan"]

in

the nation

Federal Courts

and has

been

rejected the Pion claim on

for the Dis-

is as broadly inclusive as

expressly approved

Administration Act of 1992, codified at 28 U.S.C.

1863(b)(2) (1992).4

On appeal, Pion

nonetheless insists that

____________________
the

under the

committee, however, makes clear that the

_____ _____ ____ ___
act will not preclude any person or the Unit___ ____ ___ ________ ___ ______ __ ___ _____
ed States from asserting rights created by
__ ______ ____ _________ ______ _______ __
other statutes or for [sic] enforcing consti_____ ________ __ ___
_________ _______

tutional rights.
________ ______
H.R. Rep. No. 1076, 90th Cong., 2d Sess.

(1968), reprinted in
_________ __
1968 U.S. Code Cong. & Admin. News 1792, 1806 (emphasis added).
See also De-Alba-Conrado, 481 F.2d at 1270 n.5.
___ ____ _______________
Given the express language employed in subsection
1867(e), and its explicit legislative history, id., we believe it
___
prudent to bypass the question, see Norton, 427 U.S. at 532,
___ ______
rather than attempt, sua sponte, to resolve it on the present
___ ______
record.

4Rather than voter lists or motor vehicle registration

lists, the baseline data utilized under the Jury Plan are the
alphabetical lists of all persons age seventeen and above residing in every Massachusetts city and town, compiled annually
pursuant to Mass. Gen. L. ch. 234A,
10 (1992).
See United
___
7

the Jury Plan results in such substantial Hispanic underrepresen_______ __

tation as to render it constitutionally infirm under the "systematic exclusion"

standard employed in Duren v. Missouri, 439 U.S.

_____
________

357, 364 (1979).

The

burden

is

on

the

defendant

to

establish a prima facie case of unconstitutional disproportionality.

We

United States v. Benmuhar, 658 F.2d 14, 19 (1st Cir. 1981).

_____________
________
conclude

that Pion

has not

demonstrated that

any Hispanic

underrepresentation
atic
____

exclusion
_________

(emphasis
prima

on his jury venire was due to their "system_______

in the
__ ___

added).

process."
_______

Consequently, he has

facie violation

Id. at 364;
___

jury-selection
____ _________

of the

Id.
___

failed to

at

366

establish a

"fair-cross-section requirement."

United States v. Hafen, 726 F.2d

_____________
_____

21, 23 (1st Cir.),

cert. denied, 466 U.S. 962 (1984).

____ ______
The

government

distinctive ethnic

Duren test.
_____

Hispanics

conceding the first

See Duren, 439

___ _____

counters, however, that Pion

showings:

that

constitute

prong of the

U.S. at 364.

failed to make the two

that Hispanic representation on jury

community" and that any such

systematic exclusion

three-

The government

other Duren
_____

venires "is not

fair and reasonable in relation to the number of such

the

group in the Eastern Division of the District

of Massachusetts, thus
part

agrees

persons in

underrepresentation is "due to

of [Hispanics]

in the

jury-selection pro-

____________________

States District Court, District of Massachusetts, Amended Jury

Plan at 3 (Sept. 6, 1989).
Names are drawn at random from these
resident lists for inclusion in the Master Jury Wheel from which
potential grand and petit jurors' names are then randomly drawn.
8

cess."

Id.
___

Although

both showings

are problematic,

we need

address only the "systematic exclusion" claim.

Pion

presented

uncontroverted

3.4%

"absolute disparity" between

tion

in the relevant

evidence indicating

the 4.2% Hispanic representa-

general population and

representation

among persons

See Hafen, 726

___ _____

F.2d at

appearing

24 ("absolute

the 0.80% Hispanic

for juror

orientation.

disparity" standard

more

appropriate than "comparative disparity" standard where allegedly

underrepresented group
total

constitutes very small proportion

population) (citing

United States v.
______________

1248, 1249 (8th Cir.), cert. denied, 416

_____ ______
the reasons stated

in Hafen,
_____

726 F.2d at

of the

Whitley, 491
_______

U.S. 990 (1974)).5

24, the

F.2d

For

"comparative

disparity" standard should not be employed in circumstances where

"a small variation in the

figures used to calculate

comparative

____________________
5The

"comparative disparity" standard would measure the

___________
percentage spread between the total number of Hispanics in the
relevant general population who are eligible for jury service
["eligible Hispanics"], i.e., assumedly 4.2%, and the shortfall
____
_________
between the eligible Hispanic jurors (4.2%) and the percentage
appearing for juror orientation (0.8%), i.e., 3.4%. The "compar____
_______
ative disparity" would be calculated by dividing the shortfall in
_____
_________

Hispanic representation (3.4%) by the percentage of eligible

Hispanics (4.2%), yielding a huge 81% "comparative disparity."
See Hafen, 726 F.2d at 23.
___ _____
The "absolute disparity" standard, on the other hand, would
________
measure the gross spread between the percentage of eligible
Hispanics (4.2%) in the relevant population and the percentage of
Hispanic representation on the Master Jury Wheel. Here, Pion
wrongly assumes a 3.4% "absolute disparity." The reality is that
_______ _______
the spread between the 4.2% of eligible Hispanics and the per______
____
centage of Hispanics on the Master Jury Wheel has not been
_______ __ _________ __ ___ ______ ____ _____
established, nor can it be discerned, since the percentage of
Hispanics on the Master Jury Wheel is not disclosed in the
______ ____ _____
appellate record.
Thus, Pion impermissibly assumes that the
0.80% Hispanic representation among all persons who appear for
juror orientation is the appropriate downside percentage for
measuring the absolute disparity in Hispanic representation.
9

disparity can produce a significant difference in the result, and

. . . there is

reason to

doubt the accuracy

of the figures

on

which appellant would have us rely."6

Pion has
underrepresentation
District of

on

demonstrated that

any alleged

Eastern

jury

Division

venires

Hispanic

in the

Massachusetts is due to "systematic exclusion in the

jury-selection
neither

not

process."

a systemic defect

Duren, 439 U.S. at 366.

_____
nor an operational

He identifies

deficiency in the

Jury Plan
tion,

which would

compare id.
_______ ___

suggestion

at

account for the

366-67,

and

alleged underrepresenta-

he expressly

disavows

any

that the Jury Plan was either designed or intended to

exclude Hispanics.
The first infirmity

in the unfair

cross-section claim

is that the district court found, and Pion does not dispute, that
the broadest data available

resident lists

are used to make

up the Master Jury Wheel from which Eastern Division jury venires
are drawn.
tical

There is no allegation, much less

or otherwise,

section are

that data

available, let

eligible Hispanics

in the relevant general

the names included in

drawn

from the most inclusive

there

also determines
can be

no

more conducive

alone more fairly

since

tion

a showing, statis-

to whom

the Master Jury

to a

fair cross

representative of

population.

Second,

Wheel are randomly

data available, and random selecjuror questionnaires

reasonable inference

that the

are mailed,

jury-selection

____________________

6For a fuller exposition of the rationale for utilizing the

"absolute disparity" standard in a case of this sort, see Hafen,
_____
726 F.2d at 23-24.
10

process itself systematically excludes

Hispanics at any stage up

to and including the distribution of juror questionnaires.

At that stage in the process, however, the
on

by Pion indicate, see

___

sion, Boston, Mass.,

1992 Jury Wheel

that only

return the jury questionnaire,

Hispanic.

their

accuracy,

data

those

who complete

and .80% of those who

orientation, are

representation on the
______________ __ ___

Report, Eastern Divi-

.99% of those

juror

these

data relied

Nevertheless,

demonstrate

1992 Master
____ ______

no
__

appear for

even assuming

Hispanic
________

Jury Wheel.
____ _____

and

under______

And since

only

persons whose names are randomly drawn for the Master Jury

Wheel can receive a juror questionnaire (and, later, a summons to

juror orientation),
based on
(or

the .80%

Pion's allegation of

Hispanic representation at

the .99% responding

tion.
____

See
___

exclusion);

leeway

cf. Barber
___ ______

v. Ponte,
_____

772 F.2d

banc) ("courts have tended

actively prevent people

criminate, and so
(emphasis

in

Benmuhar,

658

is pure specula____ ________

489, 492 (8th Cir.

underrepresentation not a proxy

in designating jurors so

does not

juror orientation

to the questionnaire)

United States v. Garcia, 991 F.2d

_____________
______

1993) (numerical

1985) (en

"systematic exclusion"

982, 997

to allow a

long as the

for systematic

(1st Cir.

fair degree of

state or community

from serving or

actively dis-

long as the system is reasonably open to all")

original); cert.
_____
F.2d at

19

denied,
______

(finding

475

U.S. 1050

(1986);

"systematic exclusion"

of

________
Hispanics as
of

a result of Commonwealth of Puerto Rico's exclusion

non-Anglophones

from jury

Hispanic representation on

service).

With

no datum

the Master Jury Wheel, and

as to

given the

11

fact

that the baseline data for comprising the Master Jury Wheel

are the best available, there can be no reasonable inference that

the

relatively

small

Hispanic

underrepresentation

at

juror

orientation is attributable to anything other than the randomness

of the
Wheel.

draw from either

the resident

lists or the

Master Jury

Consequently, Pion generated no trialworthy issue on the

essential element

of "systematic exclusion," Duren,

_____

439 U.S. at

366.7
F.
F.

Mandatory Minimum Sentence (21 U.S.C.

841(b)(1)(A)(ii))
Mandatory Minimum Sentence (21 U.S.C.
841(b)(1)(A)(ii))
_________________________________________________________
Pion

included

contends that

the

sentencing

an unconsummated three-kilogram

calculating

the amount

triggering the

for

which he

minimum ten-year

841(b)(1)(A)(ii) (ten-year

court

improperly

cocaine transaction in

was responsible,

sentence mandated by

thereby

21 U.S.C.

minimum for distribution of five or

more

kilograms

of cocaine).8

At

sentencing, the

argued that Pion was responsible, under U.S.S.G.

(n.12) (1992) [hereinafter:

government

2D1.1 comment.

"note 12"], for the additional three

____________________

7Duren provides an instructive contrast. There a very large

_____
(39%) absolute disparity existed between the percentage of women
________ _________
in the relevant population and their representation on jury
venires, a disparity which the Court found reasonably attributable to a prominent feature in Missouri's jury-selection process;
that is, the longstanding practice of granting women automatic
________
_________
exemption from jury service upon request. Duren, 439 U.S. at
_________ ____ ____ _______ ____ _______
_____
366-67. Pion points to nothing in the Jury Plan, or its implementation, which would account for the much smaller (3.4%)
absolute disparity alleged here.

8The presentence report recommended that Pion be held

responsible for 3.5024 kilograms, the combined total delivered on
June 4 (approximately one-half kilogram) and July 3 (three kilograms).
12

kilograms

he negotiated to supply

determined, pursuant
capable

of producing"

it supportably found

to note 12,
the three
that the

Mendoza in July.9
that Pion was

The court

not "reasonably

additional kilograms.10

object of the

conspiracy was

Then

to

distribute in excess of six

kilograms of cocaine, including

the

additional three kilograms Pion agreed to supply Mendoza later in

July.11

Accordingly, the

court concluded that Pion

was subject

____________________
9Note 12 states in relevant part:
The weight under negotiation in an uncompleted distribution shall be used to calculate
the applicable amount.
However, where the
court finds that the defendant did not intend
to produce and was not reasonably capable of
___
producing the negotiated amount, the court
shall exclude from the guideline calculation
the amount that it finds the defendant did
not intend to produce and was not reasonably
___
capable of producing.
(Emphasis added.)
10The district court ruled:
I am

unable to find by a fair preponderance

______ __ ____
of the evidence that Mr. Pion was reasonably
____ ___ ____ ___ __________
capable of producing the negotiated amount.
_______ __ _________ ___ __________ ______
I've already found that he intended to produce it.
But on this record, and by this
record I include the presentence report and
all the representations made to me, I can not
find that he was reasonably capable of producing the negotiated amount.
(Emphasis added.)
11The court found
by a fair preponderance of the evidence [that
Pion] knowingly, intelligently and voluntarily entered into a course of conduct the negotiation for which was and which contemplated
the delivery of an additional three kilograms, or 3,000 grams of cocaine within the
13

to the ten-year minimum sentence mandated by statute for conspiring

to possess and distribute five or more kilograms of cocaine.

See
___

21 U.S.C.

841(b)(1)(A)(ii), 846.

that he was not

capable of producing the three

grams negotiated on July 3,

the

ten-year

minimum

Pion's

additional kilo-

see supra note 10, Pion

___ _____

sentence

mandated

841(b)(1)(A)(ii) does not apply.

is phrased

Relying on the finding

under

argues that
21

U.S.C.

We disagree.

position is confounded by the fact that note 12

in the conjunctive.

See supra note 9.

___ _____

It requires

the sentencing court to include the "weight under negotiation

an uncompleted distribution" unless
did

not

intend to

produce and
___

it finds that "the defendant

was

not reasonably

producing the negotiated amount." Id. (emphasis added).

___
more, note 12 directs the
conjunctive

to

negotiated amount that it

produce

and
___

was not

(emphasis added).

sentencing court

"exclude from

the guideline

capable

Its conjunctive phrasing

capable of

Further-

once again in

of

the

calculation the

finds the defendant did not

reasonably

in

intend to

producing."

Id.
___

clearly is intended

to avoid inflated sentences based on drug-quantity discussions in

uncompleted
fing;

transactions where

that is,

unable,

to

where the

produce the

the defendants were

defendants did
amount

merely puf-

not intend,

under discussion.

and were
___

Cf. United
___ ______

States v. Moreno, 947 F.2d 7, 9 (1st Cir. 1991) (applying

______
______

former

____________________
following week. . . .
14

U.S.S.G.

2D1.4 comment.

(n.1)).

In

sum, Pion's

claim fails

because neither conjunctive clause in note 12 can be ignored.12

Although the district court
ably

capable of

producing

found that

he was a member

distribute

more

intended

than six

to further

did not find Pion reason-

the additional

three kilograms,

of a conspiracy whose
kilograms

and

the conspiratorial

that he
objective.

it

object was to

specifically

See United
___ ______

States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (no "impossibili______
_______

ty" defense available under

v. Everett, 700 F.2d
_______

841(a)(i) and 846); United States

_____________

900, 904 (3d Cir. 1982)

to eliminate "impossibility" defense

under

(Congress intended

846); see generally

___ _________

Wayne R. LaFave & Austin Scott, Jr., 2 Substantive Criminal Law

________________________
6.5(b), at

90-93 (1986)

(discussing

limits of

"impossibility"

defense in conspiracy cases).

inability

The

district

to

produce

court
the

correctly concluded

additional three

that

kilograms

Pion's
was

no

____________________

12Although the parties assume that the drug-quantity determination arrived at under note 12 does not govern for purposes of
triggering a minimum sentence mandated by statute ["MMS"], see,
___
e.g., 21 U.S.C.
841(b)(1)(A)(ii), note 12 is not limited in
____
this fashion. Nor is there a statutory directive that might be
thought to govern the threshold drug-quantity determination for
MMS purposes.
Absent a statutory alternative, therefore, we
think application note 12 provides the threshold drug-quantity
_________
calculus upon which depends the statutory minimum sentence fixed
under 21 U.S.C.
841(b)(1)(A)(ii). See United States v. Hughes,
___ _____________
______
970 F.2d 227, 236 n.9 (7th Cir. 1992) (discussing U.S.S.G.
2D1.4, a forerunner to U.S.S.G.
2D1.1 comment. (n.12) (1992)).
15

impediment

to its

imposition of

the ten-year

mandated by statute.13
Affirmed.
________

- Concurring Opinion Follows __________________________

minimum sentence

____________________
13Since there has been no showing of error,
tive-error claim collapses.

Pion's cumula-

16

TORRUELLA,
agree

with

Circuit Judge
_____________

my colleagues

opinion, with the

on

all

(Concurring).
parts of

Although

this

exception of Part E thereof --

well-crafted

and even as to

that,

I conclude that appellant has failed to raise a cognizable

claim

before this court -- I must express myself separately with

respect to

the substance of the majority's reasoning in reaching

our common result.

First of

all, the

court has reached

pronouncements thereon, which are

issues and

not properly before us.

made

I am

referring to appellant's allegation that the jury pool from which

the

petit jury was drawn

does not represent

a cross-section of

the community, thus violating the Sixth Amendment of

tution.

the Consti-

See, Duren v. Missouri, 439 U.S. 357 (1979).

___ _____
________
This contention

was raised by appellant, after convic_____

tion,

as part

of a

supplemental motion

for a

new trial.

It

therefore clearly fails to comply with the provisions of the Jury

Selection

and Service Act of 1968, 28 U.S.C.

1861-1876, pursu-

ant to which:
In criminal cases, [challenges to the
composition of the jury must be raised]
before the voir dire examination begins,
or within seven days after the defendant
discovered or could have discovered, by
the exercise of diligence, the grounds
[for such a challenge] . . .
28 U.S.C.

1867(a).

This statute further establishes that:

The procedures prescribed by this section

shall be the exclusive means by which a
_____
_________
person accused of a federal crime, . . .
may challenge any jury on the ground that
such jury was not selected in conformity
with the provisions of this title.
-1616

28 U.S.C.

1877(e) (emphasis added).

The

government's

apparent

appellant's failure to comply with

lapse

in

not challenging

these mandatory requirements,

and the district court's complacency therewith, are irrelevant to

determining

whether the issue is

challenge requirements

properly before us.

are to be strictly

The jury

construed and failure

to comply precisely with their terms

the composition of

the jury.

forecloses any challenge to

United States v.
_____________

Cooper, 733 F.2d

______

1360 (10th Cir. 1984), cert. denied, 467 U.S. 1255 (1984); United
____________
______
States v. Green,
______
_____
Raineri, 670 F.2d
_______
1035

742 F.2d 609 (11th Cir. 1984); United States v.

_____________
707 (7th

Cir. 1982), cert. denied, 459

_____________

(1982); United States v.

_____________

Bearden, 659 F.2d

_______

U.S.

590 (11th Cir.

1981), cert. denied, 456 U.S. 936 (1981); United States v. Young,
____________
_____________
_____
570 F.2d 152 (6th Cir. 1978); United States
_____________
16
F.2d

v. D'Alora, 585 F.2d

_______

(1st Cir. 1978); Government of Virgin Islands v. Navarro, 513

____________________________
_______
11

(3d Cir.

1975), cert. denied,

_____________

United States v. Fern ndez,

_____________
_________
denied, 420 U.S. 990
______

422 U.S.

1045 (1975);

497 F.2d 730 (9th Cir.

1974), cert.
_____

(1974).

Any objection to

jury composition

which is not timely raised is considered waived for all purposes.

United States v.
_____________
denied,
______

454 U.S.

Webster, 639
_______
857

F.2d 174 (4th

Cir. 1981),

cert.
_____

v. Young,
_____

supra;
_____

(1981); United States

______________

United States v. Grismore, 546 F.2d 844 (10th Cir. 1976).

_____________
________
The
jury

record shows

composition

issue in

that appellant
a timely

failed to

fashion,1

raise the

and thus,

as a

was impeded

from

____________________
1There

is no

allegation

that appellant

doing so for any valid reason, or that the information upon which
his claim is based was unavailable.
-1717

matter of law, he

is foreclosed from

matter on appeal.
and

I am

thus

the right to contend

We therefore need go no further.

required to

express

my disagreement

this

Yet we do,
with

the

majority's unnecessary dicta regarding the merits of this issue.

As is well known, to establish a
of
that

the cross-section
the group

requirement, a

alleged

to be

prima facie violation

petitioner must

excluded

is a

show: (1)

"cognizable"

or

"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

(3)

community; and

tioner's venire is due

in

that the

underrepresentation in

to the systematic exclusion of

the jury-selection process.

peti-

the group

Duren v. Missouri, 439 U.S. 357,

_____
________

364 (1979); Hern ndez v. Texas, 347 U.S. 475, 579 (1954).
_________
_____

nizability

There

should

of

Hispanics

be

little
for

doubt

regarding

Sixth Amendment

the

purposes.

cog-

See
___

Hern ndez
_________
Co., 328
___

v. Texas, 347 U.S.

_____
U.S. 217,

at 475; Thiel
_____

220 (1986).

Where I

v. Southern Pacific
________________
part company

with my

colleagues is in our relative application of the second and third

Duren prongs.
_____
In my view, in contrast with the majority,
presented by

appellant show

a statistically

significant under-

representation of Hispanics within the jury venire.

the 1990 census, 4.2%

of the residents within the

sion of

of Massachusetts, the

are

the District

Hispanics.

the figures

According to

Eastern Divi-

relevant community,

Yet Hispanics represent only .80% of the venires

-1818

for

that Division.

Otherwise

composition is such that

on

the district

called
venires

for

every

further contends
ethnic groups,

jury for

such as

every one-thousand

fact only eight

one-thousand

that

the population

one would expect 42 Hispanics

court's

to such duty, in

stated, although

when

citizens

Hispanics serve in the

citizens

compared

to serve

with

called.
other

non-minority whites, blacks

Appellant

identifiable

or American

Indians, only Hispanics are disproportionately underrepresented - and the statistics were produced to support this contention.
According to

my calculations,

figures as correct, Hispanics

if one takes

the above

are underrepresented in the venire

by 80.95% as compared to their numbers in the community.2

v. Missouri, supra, at 364.
________ _____
tically significant
My

method of

understand

constitutionally cognizable.

determining disparity

should

represented group

used

"where

constitutes [a]
Id.
___

is dubbed

Citing

Id.
___

the "comparative

colleagues, ante at 8 n.5,

____

not be

total population."
21, 23-24 (1st

Such a disparity is not only statis-

but also

disparity" standard by my

Duren
_____

which they

[the] allegedly

under-

very small proportion

of the

United States v. Hafen, 726 F.2d

_____________
_____

Cir. 1984), they promote

the so-called "absolute

disparity" standard, ante at 9 nn.5-6, whereby they conclude that

____

____________________

2This percentage of underrepresentation is measured by

calculating the shortfall between the percentage of eligible
_________
Hispanic jurors (4.2%) and the percentage appearing for juror
orientation (0.8%), i.e., 3.4%, and then dividing the shortfall
_________
in Hispanic representation (3.4%) by the percentage of eligible
Hispanics (4.2%).
-1919

the
be

underrepresentation is only 3.4%,3 a spread which is said to

constitutionally insignificant.

Hafen tells
_____

us that

this

system of calculating disparity should be used where the cognizable group is

is

small because if the "comparative disparity" method

used under those

circumstances, it will

distort "reality."

Hafen, 726 F.2d at 24.

_____
I

believe

several reasons.
prior,

this

to

First of

be an

disparity calculation
underrepresentation.
n.n.11,

conclusion

all, I find Hafen to run

_____

valid circuit precedent in

500 (1st Cir. 1983),

erroneous

La Roche v.
________

for

contrary to

Perrin, 718 F.2d

______

which established the so-called comparative

as

the circuit

standard for

determining

See also Barber v. Ponte, 772 F.2d 982, 989

________ ______
_____

12 (1st Cir. 1985).

Roche is unconvincing.
_____

Hafen's attempt
_______

to distinguish La
__

Secondly, the majority's approach leaves

us

without any guide or standard as to when the cognizable group

is

to be

considered too

switch from
applying
depending

small or

one standard to

the other.

different constitutional
on whether

large so

they are

It

standards

large or

as to

trigger the

would appear
to varied

small, would

that

groups,

not only

raise substantial
important goals

equal protection issues, but

promoted by the

and the Sixth Amendment.

tion

are

"distortion

those least

talking about?

To my

Jury Selection and

The minorities
entitled to

of reality."

would defeat the

Service Act

most in need of protec-

it,

to allegedly

might ask

prevent a

who's "reality"

are we

view, the true distortion of "reality"

is

____________________
34.2% - .8% = 3.4%.
-2020

the

failure of a

criminal law system,

large number of persons

its

mechanisms

before which is

from an ethnic group, to

the peers

of those

charged,

tried a

include within

at least

in some

reasonable measured proportion to their membership in the population.

Finally, on

its face the

standard appears to run

representation of
[i.e.,

contrary to Duren, which speaks

_____

to "the

[the] group in the community . . . in relation

in comparison]

community."

so-called "absolute disparity"

to

the number

Duren, supra, at 364.

_____ _____

of

such persons

This language seems

in comparative, not in absolute, terms.

in

the

to speak

___________
We

thus come

to

the issue

of systematic

exclusion.

Normally, systematic exclusion requires a showing of

disparity in numbers over

substantial

a sustained period of time,

Barker v.
______

Ponte, 772 F.2d 982, 989 (1st Cir. 1985), something which has not
_____
been

established by appellant in this case.

that where the disparity established by

proportion
be

I believe, however,

the claimant reaches the

of those in the present case, 80.95%, the burden must

______

shifted to

aberration

justify that

such an

is not the product of inappropriate conduct.

In most

cases, such

require the

government to

as perhaps the present one,

this should be a burden

easily explainable by the government.

Had appellant complied
of

28 U.S.C.

conviction.
affirmance

1867, I
Having

of his

would

failed to
conviction,

with the absolute

have voted

for reversal

do so, however,
although as

requirements

of his

I concur in

indicated above,

the

believe that at least part of the majority's reasoning is flawed.

-2121