866 F.

2d 390
27 Fed. R. Evid. Serv. 1108

UNITED STATES of America, Plaintiff-Appellee,

v.
Jose RODRIQUEZ-CARDENAS, Amado Jesus Perez,
Defendants-Appellants.
No. 88-8080.

United States Court of Appeals, Eleventh Circuit.

Feb. 21, 1989.

Paul S. Kish, Federal Defender Program, Inc., Atlanta, Ga., for RodriquezCardenas.
Paul H. Kehir, Snellville, Ga., for Perez.
Craig A. Gillen, Asst. U.S. Atty., Atlanta, Ga., for U.S.
Appeal from the United States District Court for the Northern District of
Georgia
Before JOHNSON and EDMONDSON, Circuit Judges, and NICHOLS,*
Senior Circuit Judge.
JOHNSON, Circuit Judge:

Amado Jesus Perez and Jose Rodriquez-Cardenas appeal their convictions for
conspiracy to possess cocaine with intent to distribute in violation of 21
U.S.C.A. Secs. 841 and 846. They challenge the prosecutor's use of peremptory
challenges to strike all blacks from the jury panel and the trial judge's decision
to admit certain tape-recorded statements into evidence during the trial. We
affirm the district court.

I. BACKGROUND
2

In July 1987, federal authorities were investigating the distribution and sale of
cocaine in the Atlanta area. At this time, Luis Fontes, a known supplier of

cocaine, contacted Douglas Reynolds to tell him that Fontes had associates
ready to make a sale. The group of associates included appellants Perez and
Rodriquez. Reynolds then arranged a meeting at his house between Perez and
some potential buyers (one of whom was a government informant).
3

On July 7, 1987, Perez and Rodriquez arrived at Reynolds' house with the
cocaine to make the sale. Once the terms had been agreed to, the exchange of
money and drugs was to take place at a different location. Those actually
transacting the sale at that location were arrested. Perez, Rodriquez and
Reynolds were then arrested at Reynolds' house.

On July 9, 1987 Perez, Rodriquez, and Reynolds were charged in a two-count

indictment with conspiracy and possession with intent to distribute cocaine.
Reynolds immediately began cooperating with the government. At the direction
of government officials, he placed several calls to Fontes that were recorded
with Reynolds' consent. Fontes was later arrested and pled guilty.

During jury selection, the judge conducted the majority of the voir dire. He
then allowed each side to exercise its peremptory challenges and a jury was
selected. At this point, Rodriquez challenged the government's use of its strikes,
noting that all three black potential jurors had been eliminated by the
prosecutor. After the prosecutor made a statement defending his actions, the
judge overruled Rodriquez's objections.

The government's key witness at trial was Reynolds. His testimony that
appellants were involved in executing the transaction was substantially
corroborated by a government informant, who had purchased the cocaine, and a
Drug Enforcement Agency (DEA) agent. Appellants then testified that they had
simply contacted Reynolds and Fontes independently at the suggestion of
friends who said the two men could help appellants find work in Atlanta. They
maintained that they were innocently swept into the drug transaction by their
association with Reynolds. Appellants strenuously objected to the admission of
two of the tape-recorded conversations the DEA made of Reynolds and Fontes
after Reynolds agreed to cooperate with the DEA. However, the district court
allowed the taped conversations admitted into evidence.

At the conclusion of the trial, the jury returned a verdict of guilty on the
conspiracy charge (Count I) but not guilty as to the possession charge (Count
II). On February 3, 1988, appellants were each sentenced to twelve years
imprisonment. This appeal followed.

II. PROSECUTION'S USE OF PEREMPTORY CHALLENGES

8
9

At the conclusion of jury selection, Rodriquez, who is Hispanic, objected to the

prosecutor's use of his peremptory challenges to rid the jury panel of the three
black potential jurors. In objecting, he cited Batson v. Kentucky, 476 U.S. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and claims he was cut off by the district
court judge before stating that he also objected on Sixth Amendment grounds.
On appeal, appellants rely on both Batson 's equal protection analysis and Sixth
Amendment "fair cross-section" analysis to argue that the district court should
have sustained the objection. Because appellants do not have standing to raise a
Batson claim and because this Circuit's precedent forecloses application of
Sixth Amendment "cross-section" analysis to petit juries, we reject their
arguments.

10

In Batson, the Supreme Court held that it was a violation of equal protection for
a prosecutor to exclude potential jurors in the selection of a petit jury solely
because they were members of the same racial group as the defendant. Id. at 89,
106 S.Ct. at 1718-19. The Court reasoned that the concept of equal protection
cannot tolerate "the assumption that [jurors of one race] as a group will be
unable impartially to consider the State's case against a [defendant of that racial
group]." Id. Thus, Batson 's equal protection rationale limits appellants to the
claim that the prosecutor unfairly excluded Hispanics from the jury. Appellants
do not have standing, under Batson, to challenge the prosecutor's exercise of his
peremptory challenges in this case. See United States v. Townsley, 856 F.2d
1189, 1190 (8th Cir.1988) (en banc) (nonblack defendants cannot rely on
Batson to challenge government's use of peremptory challenges to exclude
black potential jurors from jury); United States v. Angiulo, 847 F.2d 956, 984
(1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988)
(same).

11

In the alternative, appellants urge the Court to consider the Sixth Amendment's
guarantee of an "impartial jury" and the "fair cross-section" analysis that
follows in some circumstances from this requirement. The Supreme Court has
interpreted the Sixth Amendment to guarantee a defendant's right to a jury
selected from a representative cross-section of the community. Thus, the Court
has held that the Sixth Amendment prohibits the systemic exclusion of
cognizable groups within the community from the jury pool. Taylor v.
Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975).

12

However, the Supreme Court has consistently refused to extend this

requirement to petit juries. See Taylor, 419 U.S. at 538, 95 S.Ct. at 701-02 ("
[I]n holding that petit juries must be drawn from a source fairly representative

of the community we impose no requirement that petit juries actually chosen

must mirror the community and reflect the various distinctive groups in the
population."); Lockhart v. McCree, 476 U.S. 162, 173-74, 106 S.Ct. 1758,
1764-65, 90 L.Ed.2d 137 (1986) ("We have never invoked the fair-crosssection principle to invalidate the use of either for-cause or peremptory
challenges to prospective jurors, or to require petit juries, as opposed to jury
panels or venires, to reflect the composition of the community at large.... We
remain convinced that an extension of the fair-cross-section requirement to petit
juries would be unworkable and unsound.").
13

Although other Circuits have read the language in the Supreme Court's
opinions to allow the more expansive interpretation of the Sixth Amendment
urged by Rodriquez,1 this Court has recently affirmed that it is bound by
precedent to reject such an interpretation. In Lindsey v. Smith, 820 F.2d 1137
(11th Cir.1987), this Court acknowledged that the Supreme Court in Lockhart
"did not foreclose the possibility that the Sixth Amendment offers some
protection against the exclusion of blacks from petit juries by use of peremptory
challenges." Lindsey, id. at 1145. However, the Court stated that it was bound
to limit its interpretation of the Sixth Amendment by United States v. Dennis,
804 F.2d 1208 (11th Cir.), modifying 786 F.2d 1029 (11th Cir.1986), cert.
denied, 481 U.S. 1037, 107 S.Ct. 1973, 95 L.Ed.2d 814 (1987), where the
Court stated that it was "constrained by binding Eleventh Circuit authority ... to
reject appellants' invitation" to read the Sixth Amendment as requiring
application of the cross-section analysis to the petit jury selection process. Id. at
1209 n. 21. Dennis in turn relied on a footnote in Willis v. Zant, 720 F.2d 1212
(11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3546, 82 L.Ed.2d 849
(1984), which stated that the cross-section analysis set out in Taylor was
"limited to jury venires." Id. at 1219 n. 14. In view of the limited interpretation
of the Sixth Amendment taken in Willis, Dennis, and Lindsey, we are bound by
precedent to reject appellants' argument that the Sixth Amendment should be
read to provide protection for them in their challenge to the exclusion of black
jurors from the petit jury by use of peremptory challenges.2 III. ADMISSION
OF THE TAPE-RECORDED CONVERSATIONS

14

Appellants challenge the admission of two tape-recorded conversations

introduced by the government during the trial. They claim that the district court
judge erred in admitting the first taped conversation, Government Exhibit 3
("G-3"), because it was introduced on redirect examination of Reynolds and
went beyond the scope of the cross-examination. They challenge the judge's
decision to admit the second recorded conversation, Government Exhibit 5 ("G5"), because they claim it is inadmissible under Fed.R.Evid. 402 and 802,
which bar admission of irrelevant and hearsay evidence respectively. Decisions

regarding the scope of redirect examination are committed to the district court
judge's discretion, United States v. Wiley, 846 F.2d 150, 156 (2d Cir.1988), as
are decisions regarding the admissibility of evidence, United States v. Peaden,
727 F.2d 1493, 1498 (11th Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 185, 83
L.Ed.2d 118 (1984), and both will be upset only if there is a clear showing that
the district court judge abused his discretion.
15

The first tape recording was introduced during the redirect examination of
Reynolds, who appeared as a government witness. On cross-examination, the
following interchange took place:

16
[Defense
counsel]: Now, when this entire transaction [during which the defendants
were arrested] had its beginning or its genesis, it was from a phone call you'd
received from your old coke dealing buddy Luis Fontes, is that right?
Mr. Reynolds: That's correct.
17
18
[Defense
counsel]: And he told you that he had some, in your words, business
associates here in Atlanta?
Mr. Reynolds: That's correct.
19
[Defense counsel]: He didn't mention the name Jose Rodriquez-Cardenas, did he?
20
Mr. Reynolds: No, sir; No, sir.
21
[Defense counsel]: He didn't mention the name Jesus, did he?
22
Mr. Reynolds: No, sir.
23
24

Trial transcript at 42. On redirect, the government sought to introduce G-3. The
tape recording consisted of a conversation between Reynolds and Fontes, made
at the request of DEA agents on July 8, 1987, in which Reynolds informed
Fontes that he, his wife, and the appellants had been arrested.3 Although Fontes
does not refer to Perez and Rodriquez individually in the conversation, he
acknowledges the names "Jose" and "Jesus" when Reynolds refers to them a
number of times. The government argued that admission of the taped
conversation was necessary to correct the inference left by defense counsel's
questioning of Reynolds that Fontes and Reynolds had never discussed
appellants' role in the transaction. Defense counsel objected to admission of the
tape, claiming that it was made after the arrest of the appellants and that
government was seeking to go beyond the scope of the cross-examination by
introducing statements made after the transaction had occurred. The court

denied the objection.

25

After reviewing the record and the evidence at issue, we conclude that the
district court's ruling regarding admissibility of the tape numbered G-3 did not
constitute an abuse of discretion. Redirect examination may be used to rebut
false impressions that arise from cross-examination. United States v. ZimeriSafie, 585 F.2d 1318, 1322-23 (5th Cir.1978); Wiley, 846 F.2d at 156; cf.
United States v. Martinez, 775 F.2d 31, 37 (2d Cir.1985) (evidence whose
probative value might outweigh its prejudicial value in context of direct
examination may be admitted during redirect examination for purpose of
rebutting false impression resulting from cross-examination). It seems clear
from the record that defense counsel raised the issue of Reynolds' initial phone
conversation with Fontes to challenge Reynolds' previous testimony that
appellants were involved in the transaction. The district court determined that
the scope of redirect examination could include a discussion of further
conversations Reynolds and Fontes had, thus dispelling the inference that they
did not arrange to have appellants participate in the transaction. We cannot say
that the district court judge abused his discretion when he allowed the
government to introduce evidence that challenged this inference.4

26

The government introduced its second tape, G-5, during its rebuttal
examination of Reynolds. Reynolds had initially testified that a man named
Orlando Buergo, who was an associate of Fontes, had introduced appellants to
Reynolds and had instructed Reynolds that appellants would supply the cocaine
and accept the proceeds of the cocaine sale on behalf of Fontes. Appellants had
each testified that they arrived in Atlanta looking for work, that Perez's friend
Fontes gave appellants Reynolds' name because Reynolds could help them find
work, and that Buergo also promised to help them find work shortly after he
befriended the appellants at a local restaurant. Appellants thus alleged that they
did not know Reynolds and Buergo were involved in drug trafficking and that
they did not know that the two men knew one another. The government sought
to introduce G-5 to support Reynolds' testimony that Fontes and Buergo had
been actively involved in the planning and execution of the drug transaction at
issue in this case.

27

Appellants challenge the district court's decision to admit G-5, claiming that it
contains inadmissible hearsay. Further, they claim that the statements made on
the tape do not meet the relevancy requirements of Fed.R.Evid. 401 and 402
because the tape does not demonstrate that appellants had knowledge of
Buergo's relationship with Fontes and their drug-related activities. We will
address the question of relevancy first. Reynolds taped the conversation on the
evening of July 7, 1987, at the request of DEA agents.5 During the

conversation, Reynolds asked Fontes whether Buergo and other unidentified

parties involved in the July 7 transaction had contacted Fontes regarding the
sale. Fontes indicated that he was waiting to hear from them. The conversation
thus directly supports Reynolds' testimony that Buergo and Fontes were
engaged in a drug transaction and that other Fontes associates were involved. It
was not an abuse of discretion for the district court judge to find that this
evidence helped make Reynolds' testimony more credible than it would have
been without the evidence and therefore that the evidence met the relevancy
requirement of Fed.R.Evid. 401.6
28

Further, to the extent that Reynolds' statements on G-5 were admitted for the
truth of the matter asserted and might be challenged as hearsay, we cannot say
that the trial court erred in admitting them. The court accepted the government's
argument that Reynolds' statements were admissible under Fed.R.Evid. 801(d)
(1)(B), which states that a statement is not to be classified as hearsay if it is
"consistent with the declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication."

29

As for the statements of Fontes and Marena that are audible on G-5, to the
extent that they were irrelevant or constituted hearsay, the government sought a
limiting instruction at trial. Appellants conceded at oral argument that they
made a strategic decision to reject the government's suggestion at that time out
of concern that this would focus the jury's attention on the taped statements.
Appellants cannot now complain that they were unfairly prejudiced by
admission of the statements of Fontes and Marena. Further, we cannot say that
the court committed plain error in failing to sua sponte issue a limiting
instruction because the failure to do so was not so prejudicial as to affect the
substantial rights of the appellants. Peaden, 727 F.2d at 1501; United States v.
Barnes, 586 F.2d 1052, 1058 (5th Cir.1978). For all of the reasons discussed
above, we conclude that the district court did not abuse its discretion in
admitting tapes G-3 or G-5.

IV. CONCLUSION
30

Because we conclude that appellants cannot challenge the prosecutor's exercise

of his peremptory challenges under Batson or the Sixth Amendment as
interpreted by this Court, and because we conclude that the district court did not
abuse its discretion in admitting the two tape-recorded conversations in
question, we AFFIRM the district court.

Honorable Philip Nichols, Jr., Senior U.S. Circuit Judge for the Federal Circuit,

Honorable Philip Nichols, Jr., Senior U.S. Circuit Judge for the Federal Circuit,
sitting by designation

The Second and Sixth Circuits have read the Sixth Amendment to protect the
possibility that the petit jury will reflect a cross-section of the community.
Roman v. Abrams, 822 F.2d 214 (2d Cir.1987) (reaffirming McCray v.
Abrams, 750 F.2d 1113 (2d Cir.1984), vacated, 478 U.S. 1001, 106 S.Ct. 3289,
92 L.Ed.2d 705 (1986) (remanded for reconsideration in light of Batson ));
Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated, 478 U.S. 1001, 106 S.Ct.
3289, 92 L.Ed.2d 705, reinstated on remand, 801 F.2d 871 (6th Cir.1986), cert.
denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). Both Circuits
acknowledge that the Sixth Amendment cannot give a defendant the right to a
petit jury of any particular composition. But they read the Sixth Amendment to
require that the possibility of a petit jury reflecting a cross-section of the
community must be preserved during voir dire. This requirement in turn forbids
the prosecutor from exercising his peremptory challenges in a discriminatory
manner which eliminates this possibility. Roman, 822 F.2d at 226; Booker, 775
F.2d at 772

Even if this Court were to interpret the Sixth Amendment to protect the
possibility that a petit jury will reflect a cross-section of the community, see
supra note 1, Rodriquez has not shown that his rights were violated in this case.
In defending his action against a Sixth Amendment challenge, the prosecutor
must explain his reasons in such a way as to rebut the presumption that he is
basing his decisions primarily on race. Roman, 822 F.2d at 225; Booker, 775
F.2d at 773. When asked to explain his actions by the trial judge, the prosecutor
articulated neutral, plausible reasons for excluding the black potential jurors in
this case. The prosecutor struck the first black juror, Vincent Thorpe, because
he had no family and no strong record of employment. He struck the second
juror, Roy Shepard, because he was employed as a truck driver, because he was
not "particularly articulate," and because he avoided eye contact. The third
juror, Gerald Griggs, was struck because of derogatory comments he made
about having served in Vietnam. The district judge's determination that the
prosecutor's explanations were satisfactory was not clearly erroneous

A third person, identified by Reynolds as Marena, also participated in the

conversation

Appellants also argue that the conversation contains inadmissible hearsay

statements made by Reynolds. It appears from the record that the statements
were not offered for the truth of the matter asserted, see Fed.R.Evid. 801(c), but
for the nonhearsay purpose of showing that Reynolds had had conversations
with Fontes regarding the appellants. Even if some of Reynolds' statements on
the tape could be classified as hearsay, we cannot say that the trial court abused

its discretion in admitting them as prior consistent statements under Fed.R.Evid.

801(d)(1)(B). From the record, it is clear that the government never claimed
the statements of Fontes or Marena audible on G-3 were admissible as evidence
5

G-5 actually contains two phone conversations. The first one, which occurred
between Reynolds and Marena, was made in order to arrange a time for
Reynolds to call Fontes back. It may have been irrelevant but any error in
allowing it to be played before the jury was harmless because it contained no
prejudicial information

Additionally, we cannot say that the district court judge abused his discretion in
finding that the prejudicial effect of the statements did not outweigh their
probative value under Fed.R.Evid. 403