UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 92-2233

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FREDDIE OCAMPO ARCE

and HAROLD PINEDA-VELEZ,

Defendants-Appellants.

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Appeals from the United States District Court

for the Southern District of Texas

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August 3, 1993

Before WISDOM, DAVIS, and SMITH, Circuit Judges.

DAVIS, Circuit Judge:

Freddie Ocampo Arce ("Arce") and Harold Pineda-Velez

("Pineda") appeal their convictions for conspiracy to possess with

intent to distribute and for aiding and abetting the possession

with intent to distribute of over five kilograms of cocaine, in

violation of 18 U.S.C. § 2 and 28 U.S.C. §§ 841(a)(1) and

841(b)(1)(A). We find no reversible error and affirm.

I.

In July, 1991, Carl Fessler, acting as a confidential

informant for the DEA, contacted an acquaintance from prison, Juan

Sosa, to arrange a purchase of 100 kilograms of cocaine. Sosa

testified that he contacted Pedro Gemin, another prison
2

acquaintance, who invited Sosa to Houston to set up the

transaction. While in Houston, Sosa was introduced to Albero

Ramos. Ramos, in turn, contacted appellant Pineda.

Sosa went back to Miami for a few days, then returned to

Houston when Gemin notified Sosa that part of the transaction was

to take place in Houston. Gemin and Sosa met with Fessler and two

undercover officers posing as buyers in a hotel and agreed to a

sell 50 kilos of cocaine for approximately $500,000. Gemin and

Sosa agreed to sell an additional 50 kilos to be delivered in

Chicago. After that meeting, Sosa and Gemin met with Ramos. Gemin

testified that Ramos called Pineda to tell him that they had seen

the money.

On August 7, 1991, Pineda met with Gemin at Wyatt's Cafeteria

to arrange the details of the sale. At Pineda's request, Gemin got

a car from Ramos, a gold Oldsmobile, to serve as the load vehicle

for the cocaine. Gemin dropped off the car, with the keys inside,

at the Wyatt's Cafeteria and called Pineda with the license plate

number. Pineda was to drop off the car loaded with cocaine at

Gemin's residence later that afternoon.

Gemin and Sosa then went to the Marriott Hotel and met Fessler

and Officer George Helton, one of the "buyers." They agreed that

Helton would accompany Gemin to his home and call Fessler when the

cocaine arrived. Sosa would wait with Fessler at the hotel; when

Helton called, Fessler was to release the money to Sosa.

An hour and a half later, officers observed a red Sunbird and

a gold Oldsmobile approaching Gemin's home. Gemin met Pineda and

appellant Arce, whom Pineda introduced as the person in charge, at
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the front door. Gemin testified that the two men entered the

house, and Pineda told Gemin that he had only 35 kilos of cocaine,

instead of the promised 50 kilos. After Gemin expressed

disappointment and Arce appeared ready to leave, Pineda suggested

that Gemin speak to his people about accepting the reduced

quantity. Gemin met with Helton in another room, and Helton agreed

to accept the 35 kilos. Gemin then took the keys to the Oldsmobile

and pulled the car into his garage. After he was shown the

cocaine, Helton called Fessler at the Marriott. Law enforcement

officers immediately entered the house and arrested the defendants.

Arce, Pineda, Sosa, and Gemin were charged in a two-count

indictment with conspiracy to possess over five kilograms of

cocaine with intent to distribute and with aiding and abetting in

the possession of over five kilograms of cocaine with intent to

distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§

841(a)(1) and 841(b)(1)(A). After a full trial, a jury convicted

Arce and Pineda on both counts. The court sentenced Arce to 235

months imprisonment, five years supervised release, and a special

assessment of $100. Pineda received a sentence of 190 months

imprisonment, five years supervised release, and a $100 special

assessment. Both defendants now appeal their convictions.

II.

Defendants first challenge the district court's ruling

permitting the government to make two peremptory challenges to the

jury venire. Pineda and Arce both allege race discrimination in

the prosecutor's peremptory challenge of a Spanish-speaking juror.

In addition, Pineda argues that the trial court erred in striking
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for cause another juror who had been convicted for heroin

possession. We address these arguments in turn.

A.

The prosecutor exercised a peremptory challenge to strike

Antonio Barajas, a Spanish-speaking venireperson. Pineda and Arce

contend that the district court erred in overruling their

objection, based on Batson v. Kentucky, 476 U.S. 79 (1986), that

the strike was racially motivated.

During voir dire, the defense asked whether any member of the

panel knew Spanish, and Mr. Barajas indicated that he could

understand, read, and speak Spanish. Neither the court nor the

attorneys questioned Mr. Barajas further. The prosecutor exercised

a peremptory challenge to excuse this juror. In response to

defense counsel's Batson objection, the prosecutor explained the

challenge as follows:

[T]he reason I struck him was because his employment was

only a short period of time. He has been at AnheuserBush [sic] for only six months. He was also the only

person who indicated, as I recall, that he spoke, was

fluent in the Spanish language. I had some concern that

if there was any translations to be given that, of

course, the jury panel would have to rely on the

translation that was given from that was admitted into

evidence, and that some concern that perhaps someone who

spoke Spanish, they may give a different version of the

Spanish in the jury, primarily for those two reasons.

Arce's attorney responded, "We would question that, because the

prosecutor had ample time to question the juror. He did not. He

chose not to question the juror about whether that could affect or

become a factor in this proceeding." The court ruled that "[t]he

Supreme Court indicated that that's a legitimate reason for

striking someone. I am satisfied that that's a legal reason."
5

The defendants failed to challenge the prosecution's first

reason for excusing Mr. Barajas, his short time of employment.

Because this reason was not facially race-related and the defense

did not dispute that explanation, the district court had no need to

rule on its validity.

The Second Circuit has held that a defendant waives objection

to a peremptory challenge by failing to dispute the prosecutor's

explanations:

Once the Government has offered reasons for its

peremptory challenges, defense counsel must expressly

indicate an intention to pursue the Batson claim. . . .

By failing to dispute the Government's explanations,

[defendants] appeared to acquiesce in them. As a result,

there was no need for the district judge to make a

ruling.

United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990). By failing

to dispute the prosecutor's short-term employment explanation in

the district court, defendants have waived their right to object to

it on appeal. Mr. Barajas's short time of employment thus stands

as an uncontested basis for excusing him, and we need not consider

his Spanish language ability as an explanation for the challenge.

B.

Pineda also argues that the district court erred in striking

for cause a venireperson who had a prior conviction for heroin

possession. Pineda acknowledges that 28 U.S.C. § 1865(b)(5)

disqualifies from jury service a person who "has been convicted in

a State or Federal court of record of[] a crime punishable by

imprisonment for more than one year and his civil rights have not

been restored." According to Pineda, however, § 1865(b)(5)

unconstitutionally discriminates against convicted felons.
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We have no trouble concluding that § 1865(b)(5) is

constitutional. The constitutionality of § 1865(b) is subject to

rational basis review. See Shepherd v. Trevino, 575 F.2d 1110,

1115 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979) (holding

that selective disenfranchisement or reenfranchisement of convicted

felons is subject to rational basis review). Several appellate

courts have upheld § 1865(b)(5) under this standard. See United

States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979); United States v.

Greene, No. 92-3052, 1993 WL 101848 at *5 (8th Cir. April 8, 1993).

We agree with those courts that excluding convicted felons

from jury service does not violate the constitutional guarantee of

equal protection. The government has a legitimate interest in

protecting the probity of juries. Excluding convicted felons from

jury service is rationally related to achieving that purpose.

III.

We consider next two challenges to the district court's

evidentiary rulings. Arce contends the district court erred in

admitting drug ledgers into evidence without proper authentication.

Pineda argues that the court erred in admitting a codefendant's

testimony about a jailhouse conversation between Pineda and Arce.

A.

Arce contends that the district court abused its discretion in

admitting into evidence ledgers reflecting drug transactions

between Henry William Nunez, a known cocaine trafficker, and

someone named "Fredy." The ledgers reflected drug transactions

with "Fredy" on August 5 and August 7, 1991. The government

contended that "Fredy" referred to the defendant, Freddie Arce.
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The August 5 entry, under the name "Fredy," bore the number "2"

followed by the date and time, "10 pm." The government offered

evidence that an undercover officer purchased two kilos of cocaine

at that time from a person who had just obtained the cocaine from

an individual driving a car registered to Arce's wife. The second

ledger entry reflected the number "35," the date, and "pm"; this

entry corresponded to the 35-kilo sale in this case. An officer

testified that the two kilos from the August 5th transaction were

wrapped similarly to the 35 kilos recovered on August 7th. Police

recovered the ledgers from Nunez's home after Arce's arrest.

Arce argues that the evidence was inadmissible for two

reasons: the government failed to properly authenticate the ledgers

and the ledgers were inadmissible hearsay. We find no abuse of

discretion in admitting the ledgers.

Evidence Rule 901(a) provides that "[t]he requirement of

authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims."

We have stated that

[t]his Court does not require conclusive proof of

authenticity before allowing the admission of disputed

evidence. . . . Rule 901 does not limit the type of

evidence allowed to authenticate a document. It merely

requires some evidence which is sufficient to support a

finding that the evidence in question is what its

proponent claims it to be.

United States v. Jimenez-Lopez, 873 F.2d 769, 772 (5th Cir. 1989).

The government may authenticate a document with circumstantial

evidence, "including the document's own distinctive characteristics

and the circumstances surrounding its discovery." United States v.
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Smith, 918 F.2d 1501, 1510 (11th Cir. 1990), cert. denied, 116

L.Ed.2d 117 (1991).

The government presented ample evidence in this case to

authenticate the drug ledgers. Perry Podaras testified that he

worked for Nunez, that these particular ledgers resembled drug

ledgers that Nunez maintained, and that the handwriting on the

ledgers was similar to Nunez's handwriting. Officers found the

ledgers at Nunez's home. This evidence was sufficient to establish

that the ledgers were indeed drug ledgers maintained by Nunez.

Arce also argues that the ledgers were inadmissible hearsay.

Federal Rule of Evidence 801(d)(2)(E) creates an exception to the

hearsay rule for a statement that "is offered against a party and

is . . . a statement by a coconspirator of a party during the

course and in furtherance of the conspiracy." See United States v.

El-Zoubi, No. 92-1128, 1993 WL 187997 at *2 (5th Cir. June 4,

1993). The evidence in this case was sufficient to show under the

preponderance standard that Nunez and Arce were involved in a

conspiracy to distribute cocaine and that the ledger entries were

made in furtherance of that conspiracy. The conspiracy that forms

the basis for admitting coconspirators' statements need not be the

same conspiracy for which the defendant is indicted. United States

v. Triplett, 922 F.2d 1174, 1181 (5th Cir.), cert. denied, ___ U.S.

___, 111 S.Ct. 2245 (1991). Podaras testified that Arce and Nunez

were acquainted and that Nunez had sold cocaine to Arce. Law

enforcement officers had seen Arce at Nunez's residence. Arce's

delivery of 35 kilos of cocaine to Gemin on August 7, 1991,

supports a finding that the August 7 ledger entry was a record of
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that transaction. Similarly, the August 5 ledger entry accurately

reflects the details of the two-kilo cocaine sale, which involved

a similarly-wrapped brick of cocaine delivered by a person driving

a gold 1991 Chevrolet Cavalier registered to Arce's wife. Arce had

purchased a 1991 Cavalier several months earlier. Based on this

evidence, the district court did not abuse its discretion in

admitting the drug ledgers into evidence.

B.

Pineda argues that the district court abused its discretion in

permitting a coconspirator, Juan Sosa, to testify to a jailhouse

conversation between Arce and Pineda. Sosa testified that he

overheard Pineda express disbelief that Arce was still responsible

for paying for the 35 kilos of cocaine confiscated at the time of

the arrest. According to Sosa, Arce responded that he did have to

pay for the cocaine and that he could pay for it in Colombia.

Pineda argues that the court improperly permitted Sosa to

testify to the conversation under the coconspirator exception to

the hearsay rule, because the conspiracy ended when Arce and Pineda

were arrested. We agree with Pineda that, ordinarily, "a person's

participation in a conspiracy ends when the person is arrested for

his role in the conspiracy." United States v. Goff, 847 F.2d 149,

170 (5th Cir.), cert. denied, 488 U.S. 932 (1988). Moreover,

contrary to the government's contention, there is no evidence that

the conspiracy continued after defendants' arrest. See United

States v. Register, 496 F.2d 1072, 1078-79 (5th Cir. 1974), cert.

denied, 419 U.S. 1120 (1975).

The court's other basis for admitting Sosa's testimony, that
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the conversation amounted to a declaration against interest under

Rule 801(d)(2)(A), is also unpersuasive. If true, the statements

would not expose Pineda to any further civil or criminal liability.

We therefore conclude that the district court erred in

admitting this evidence. However, the error was harmless. The

conversation did tend to show Pineda's and Arce's connection with

the cocaine. But the overwhelming evidence in the case already

established Pineda's involvement in the cocaine conspiracy. Sosa

testified that he knew of the supplier as "Harold" (Pineda's first

name). Gemin testified that Ramos contacted Pineda to get the

cocaine and that Gemin met with Pineda on more than one occasion to

arrange the details of the sale. In addition, Gemin testified that

he provided Pineda with the load vehicle for the cocaine. Officers

on surveillance observed Pineda, along with Arce, drive up to

Gemin's residence at the time of the cocaine deal. Pineda assisted

in the 35 kilo sale. When the officers seized the cocaine, Pineda

was arrested after he jumped through a window. Thus, we conclude

that the hearsay evidence had no substantial effect on the jury's

verdict. See El-Zoubi, 1993 WL 187997 at *3.

IV.

Pineda next argues that the evidence was insufficient to

support his conviction for aiding and abetting possession with

intent to distribute at least five kilograms of cocaine. We should

reach this conclusion, he argues, because the DEA chemist tested

only two of the packages of cocaine, totalling 2026 grams.

Pineda's argument is meritless.

We have held that proof of the quantity of drugs involved does
11

not go to guilt or innocence under § 841(a), but rather goes

strictly to the sentence. United States v. Sherrod, 964 F.2d 1501,

1507 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1422

(1993). Since Pineda has not objected to his sentence, his

argument lacks merit.

Moreover, the facts are not as Pineda suggests. DEA chemist

James Iwamoto testified that, pursuant to DEA policy, he randomly

selected two of the 35 blocks of white powder and removed the

wrappings to determine the individual blocks' net weight. Iwamoto

determined that the average weight of each block was 1,013 grams;

from that determination, Iwamoto extrapolated the total weight of

the powder to be 40,909 grams. Iwamoto then analyzed samples from

eleven of the blocks, selected at random, and determined that the

cocaine was 87% pure. Iwamoto further testified that all 35 blocks

tested positive for the presence of cocaine. The record amply

supports Pineda's conviction.

V.

Pineda finally contends that the district court erred in

permitting the prosecutor to express his opinion about the

credibility of the government's witnesses. In his closing

argument, the prosecutor stated: 

I mean, [the cooperating codefendants] could have really

slam-dunked him if they were just there trying to help

me; and I don't think counsel for the defense meant to

say that, but I feel like I kind of need to say something

about it, or if I had put them up to some type of

testimony.

They don't pay me enough money to try to prosecute people

who I don't believe or who the evidence hasn't shown me

are guilty of a crime.

[Defense objection]
12

As to [Assistant U.S. Attorney] Mr. Ray Montgomery, I

have known Ray Montgomery since I started practicing law

some years ago. I would be afraid--

[Defense objection]

THE COURT: This is argument, counsel, but let's stay

within the evidence, please.

Pineda argues that the prosecutor improperly gave his personal

opinion about the credibility of witnesses and the strength of the

government's case. See United States v. Di Loreto, 888 F.2d 996

(3d Cir. 1989). The government contends that the prosecutor was

merely responding to defense counsel's repeated insinuations during

cross-examination that the prosecution had coached the

codefendants' testimony. The government also argues that any error

was harmless.

We agree that the defense opened the door to the prosecutor's

comments by implying that the government had encouraged the

codefendants to testify falsely. Defense counsel made the

following comments during cross-examination of Pineda's

codefendants:

Q [To Juan Sosa]: The prosecutor hasn't told you

anything about what can happen to you by you getting up

here on the witness stand and saying exactly what they

want you to say?

Q [To Pedro Gemin]: You have spoken with the

prosecutor getting ready for this case, and based on

that, it's his belief that Mr. Arce and Mr. Pineda are

guilty, and that's what he wants you to testify about,

correct? . . . 

Q But it's [the prosecutor's] desire that you testify

to matters that would indicate Mr. Arce and Mr. Pineda

are guilty?

[Objection sustained]

Q The only way [the prosecutor] would think that you

were lying is if you took the witness stand and said
13

these men were not guilty?

[Objection sustained].

The prosecutor obviously was responding to the defense's

suggestions that the government had coached its witnesses. We have

held that "if the prosecutor's remarks were 'invited,' and did no

more than respond substantially in order to 'right the scale,' such

comments would not warrant reversing a conviction." United States

v. Smith, 930 F.2d 1081, 1088 (5th Cir. 1991) (quoting United

States v. Young, 470 U.S. 1, 14 (1985)).

Even if the comments were improper, any error was harmless.

"[I]mproper argument harms the defendant if it affects his

substantial rights." United States v. Simpson, 901 F.2d 1223, 1227

(5th Cir. 1990). In order to determine whether the prosecutor's

comments harmed Pineda, we examine (1) the magnitude of the

statements' prejudice, (2) the effect of any cautionary

instructions given, and (3) the strength of the evidence of

Pineda's guilt. Id. 

The prosecutor's remarks to which Pineda objects were brief,

and when the judge indicated his disapproval, counsel quickly moved

to a different subject. Finally, the evidence against Pineda was

strong. After reviewing the prosecutor's comments in light of the

entire record, we conclude that even if the comments were error,

they were harmless error.

VI.

For the reasons stated above, we affirm the convictions of

Pineda and Arce. 

AFFIRMED.