Appeal from the United States District Court for the District of Arizona. D.C. No. CR-89-00305-RMB. Richard M. Bilby, District Judge, Presiding.
Before: Alfred T. Goodwin, William A. Norris and David R. Thompson, Circuit Judges. Opinion by Judge Goodwin.
David Glen Christoffel appeals his conviction and sentencing for possession with intent to distribute, and importation of marijuana. Christoffel raises a number of issues concerning his trial and sentencing. We affirm in part, reverse in part, and remand for resentencing.
On September 12, 1989, U.S. Border Patrol Agents who were patrolling an isolated desert stretch of the U.S.-Mexico border in Arizona spotted a car heading north. The agents determined that the car's speed was excessive given the poor condition of the road. When the agents activated their emergency lights, the driver, appellant David Glen Christoffel, sped up and raced away.
In his attempt to flee, Christoffel led these and other agents through a dramatic chase at speeds of over 100 miles per hour through villages and around various roadblocks. He was finally stopped by an embankment 25 miles from the beginning point of the chase and seized by U.S. Customs Agents. Upon searching his car, the agents discovered 242 pounds of marijuana and $2,620 in twenty dollar bills.
Following his arrest, Christoffel was tried and convicted of possession with intent to distribute, and importation of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), 952(a), 960(a)(1), (b)(2)(G).
In computing Christoffel's offense level under the sentencing guidelines (USSG), the district court added two levels under 3C1.1 for Christoffel's high-speed flight from the arresting agents. As well, the court gave Christoffel two criminal history points for two prior drunk driving (DUI) convictions.
On appeal, Christoffel argues that reversible error was committed during jury selection, that his attorney rendered him ineffective assistance of counsel, and that the evidence in the case was insufficient to convict him of importation. Christoffel also argues that the district court erred by including the high speed chase and one of the prior DUI convictions in computing Christoffel's sentence under the sentencing guidelines.
I. The Jury Selection Process
Christoffel argues that the jury selection process employed by the district court restricted his right to intelligently exercise his peremptory challenges. The government's only dispute is with Christoffel's factual account of the process. Even though Christoffel's version is the correct one, we find no error.
In this case, the district court followed the so-called "Arizona" method of jury selection. Under that method, the clerk draws a number of names from the pool of potential jurors. The members of the venire so drawn all undergo voir dire. When a member is excused for cause, a replacement is selected from the courtroom pool. Once all challenges for cause have been made, the prosecutor and the defendant then exercise their peremptory challenges to excuse venire members. So long as the original venire was of the correct size,*fn1 this system assures that a sufficient number of members will survive the peremptory challenge process to form the jury.
In this case, the district court did not replace the members of the venire who were struck for cause with potential jurors from the pool. Accordingly, after both the government and Christoffel had exercised all of their peremptory challenges for regular jurors, only 11 jurors remained in the box. At that point, the district court ordered another name drawn and a member of the pool was seated on the jury. This juror had not been a candidate for peremptory challenge by either side.*fn2 At no point did Christoffel attempt to strike the twelfth juror.
Christoffel argues that the district court's failure to make provision to allow him the choice of striking the twelfth juror constituted reversible error. Christoffel relies on United States v. Springfield, 829 F.2d 860 (9th Cir. 1987). The jury selection process in Springfield was similar to the one in this case. After both sides had exercised all of their peremptory challenges, only 11 jurors remained in the box prompting the district court to select a member of the pool to sit on the jury. In that case, however, the district court permitted the defendant to exchange one of his earlier exercised peremptory challenges for a challenge against the twelfth juror. In upholding this decision, this court suggested other methods which ...