D.C. No. 2:05-cr-00578-JFW-3 Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding
The opinion of the court was delivered by: Rawlinson, Circuit Judge:
Argued and Submitted November 16, 2011-Pasadena, California
Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Richard Mills, Senior District Judge.*fn1
Opinion by Judge Rawlinson
One of the most valuable weapons in the arsenal of the trial attorney is the peremptory challenge. In a criminal trial, availability of this weapon is ensured pursuant to Rule 24 of the Federal Rules of Criminal Procedure. Specifically, Rule 24 provides that in a non-capital felony case, the prosecution is allowed six peremptory challenges and the defense is allowed ten peremptory challenges.*fn2
Appellant Horacio Yepiz (Yepiz) was tried and convicted of racketeering and violence in aid of a racketeering enterprise. Although Yepiz was entitled to exercise ten peremptory challenges, he was unable to do so because of a "use it or lose it" voir dire practice followed by the district court. This practice impermissibly deprived Yepiz of two of the peremptory challenges to which he was entitled. See United States v. Turner, 558 F.2d 535, 538 (9th Cir. 1977) (explaining that the defense cannot be forced to lose a peremptory challenge each time it accepts a jury panel as then constituted). We affirm the convictions, however, under a plain error standard of review. The error by the district court, although plain, and affecting Yepiz's substantial rights, did not "seriously affect[ ] the fairness, integrity, or public reputation" of the voir dire proceedings. United States v. Lindsey, 634 F.3d 541, 550-51 (9th Cir. 2011) (applying plain error review to similar facts and clarifying that relief should be granted only if the plain error seriously affected the judicial proceedings).*fn3
A second superseding indictment alleged that Yepiz was a member of the Vineland Boys Gang (VBS), "one of the most violent street gangs in the San Fernando Valley. . . ." "The VBS Gang control[led] drug distribution and other illegal activities within the Sun Valley area of Los Angeles. . . ." The VBS "partnered with various Mexican national drug trafficking organizations in the VBS area. In return for a steady supply of low-priced narcotics, the VBS allow[ed] these Mexican national organizations to operate within VBS territory and provide[d] these organizations with protection from other drug traffickers and gang members. . . ."
Count One alleged that Yepiz and other members of the VBS participated in a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c). The indictment alleged that, "[b]eginning on a date unknown to the Grand Jury and continuing to on or about November 30, 2005," Yepiz conspired "[t]o distribute at least five kilograms . . . of cocaine. . ." According to the indictment, "[o]n or about October 13, 1992," Yepiz also "knowingly and intentionally possessed with intent to distribute approximately 50 grams of . . . cocaine . . ." and "[o]n or before July 27, 1999," Yepiz "knowingly and intentionally possessed with intent to distribute more than 500 grams . . . of cocaine . . ." Additionally, "[o]n or about August 12, 2003," Yepiz participated in the murder of Eugenio Cruz.
Count Two alleged that Yepiz, as a member of the VBS, engaged in drug trafficking and racketeering conspiracies in violation of 18 U.S.C. § 1962. According to the indictment, Yepiz and his co-conspirators "direct[d] other VBS members in their drug trafficking and racketeering activities," "acquire[d] large quantities of cocaine, methamphetamine, and marijuana from Mexican national drug trafficking organizations on behalf of the VBS," and "distribute[d] large quantities of cocaine, methamphetamine, and marijuana on behalf of the VBS."
Count Two also alleged that Yepiz and a co-conspirator traveled to Kentucky to distribute cocaine, and, "[o]n July 28, 1999, while in Kentucky," Yepiz "possessed approximately three kilograms of cocaine." Additionally, "[o]n July 31, 1999, while in Kentucky, [Yepiz] . . . possessed approximately two kilograms of cocaine and approximately $17,500 in proceeds from the sale of cocaine."
According to Count Two, Yepiz "contacted a member of the Mexican Mafia at Pelican Bay State Prison and requested permission to kill [Eugenio Cruz] and take over the VBS gang." "Prior to June 2003, [Yepiz] told unindicted co-conspirators that he had permission from a member of the Mexican Mafia to kill [Eugenio Cruz]." In approximately June 2003, [Yepiz] met with representatives of the Mexican Mafia in order to discuss [Yepiz's] attempts to take over VBS and his threats to kill [Eugenio Cruz]." "On August 12, 2003 . . . [Yepiz] shot [Eugenio Cruz] in the head twice."
Count Three alleged that Yepiz and his co-conspirators conspired to distribute cocaine, cocaine base, methamphetamine, and marijuana in violation of 21 U.S.C. §§ 841 & 846. According to Count Three, Yepiz met with members of the Mexican Mafia regarding the gang's drug trafficking, ...