United States v. Florencia Y. Walker (92-3135) and Tanya M. Powell (92-3136)

1 F.3d 423

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 23, 1993
• Docket: 92-3135, 92-3136
• Status: Published

Opinions

CHURCHILL, Senior District Judge.

On December 5, 1989 a grand jury in the Southern District of Ohio, Eastern Division, returned a complex 46-page indictment charging the appellants, Tanya M. Powell and Florencia Y. Walker, along with four other named defendants, with a variety of offenses.

Powell and Walker, and the other four defendants, were charged in Count 1 with conspiracy to import heroin in violation of 21 U.S.C. § 963.

Count 24 charged Powell and Walker with importation of heroin in violation of 21 U.S.C. § 962(a), 21 U.S.C. §§ 960(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.

Counts 23 and 29 charged Walker with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. § 1952 and 2.

In Count 31, Walker was charged with attempted importation of heroin, in violation of 21 U.S.C. § 963.

Powell was charged in Counts 8, 20, 25, 27 and 28 with traveling in interstate commerce in furtherance of a racketeering enterprise in violation of 18 U.S.C. §§ 1952 and 2.

Powell and one other defendant were charged in Count 9 with possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(ii) and 18 U.S.C. § 2.

Powell and defendants other than Walker were charged in Counts 19, 21 and 30 with importation of heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and 18 U.S.C. § 2.

Count 34 charged Powell and defendants other than Walker with conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846.

Forfeiture Count J alleged that Powell acquired a 1987 Volvo in the name of Conchita Branch and that the automobile was obtained as a result of the commission of a felony in violation of 21 U.S.C. § 853(a)(1).

The Count 1 conspiracy was alleged to have occurred between October, 1984 and September, 1988. The other alleged offenses were alleged to have occurred on various dates during the period of the Count 1 conspiracy.

Walker and Powell were arrested on March 8, 1990. At the arraignment on March 27, not guilty pleas were entered and trial was scheduled to commence on May 2. On April 4 they were released on bond.

Three potential government witnesses— Brenda Givens, Joyce Crawford and Halima Isa — were named in Count 1 as unindicted co-conspirators. Givens, Crawford and Isa, prior to and during the trial, were imprisoned in Japan for violations of Japanese narcotics laws. The Japanese government refused to allow any of them to leave Japan. The government sought and obtained, over objections, leave of the court to take their depositions in Japan. Two trips to Japan were necessary to take the depositions because the witnesses refused to testify without grants of immunity. The government also sought and obtained trial continuances because of the time involved in taking depositions in Japan.

Major portions of the video tape depositions were objected to by one or more parties. Prior to the trial, the Court made rulings as to those portions of the tapes which would be inadmissible. The inadmissible portions were deleted from a copy of the tapes.

For convenience, a transcript of the video tape depositions had been prepared. Those portions of the testimony which were ruled to be inadmissible were highlighted with a yellow marker.

Before commencement of the trial, Walker moved for a separate trial because she was not charged with the offenses involving cocaine. Her motion was denied.

Jury trial of the charges against four of the defendants, Walker, Powell, Brown and Butler, commenced on April 29, 1991.

Jury selection was still in progress on May 6. Early in the day, Brown entered a guilty plea and agreed to testify for the government. The other three defendants moved to dismiss the venire. Later in the day, Butler also entered a guilty plea. The next morning the court denied the motions and instructed the jury that they should draw no inference from the fact that the trial was proceeding against only two defendants.

Because of the pleas, additional portions of the transcripts were highlighted and additional portions of the video tapes were deleted.

The government, over objection, was allowed to and did use the modified video tape copies to present the testimony of the three missing witnesses. Neither the tapes nor the tape copies were admitted as exhibits. The transcripts were not admitted into evidence.

At the close of proofs, Count 19 was dismissed.

In the late afternoon of May 28, the jury retired for the sole purpose of selecting a foreperson. Trial was recessed until 9:15 a.m. on May 29 at which time the trial exhibits were given to the jury. At approximately 2:00 p.m., the jury sent out written questions which included the following question:

ARE THE WRITTEN TRANSCRIPTS EXACTLY THE SAME AS WHAT WE HEARD FROM THE VIDEO TAPES OR HAVE PARTS BEEN EDITED OUT? SPECIFICALLY, BRENDA GIVENS’ DEPOSITION RE: THE COCAINE TRANSACTION THAT ALLEGEDLY TOOK PLACE IN TANYA’S HOUSE (PAGES 1-114 THRU 1-116).

An on-the-record inquiry of the foreperson of the jury established that the book of transcripts of the depositions, highlights and all, had been inadvertently sent into the jury room along with the admitted exhibits. Defendants then moved for a mistrial.

Following the questioning of jurors individually, the defendants’ motions for mistrials were denied.

On May 30 the jury returned verdicts of guilty as to each defendant on all remaining counts. The defendants’ bonds were revoked.

On January 29,1992, Powell was sentenced to 264 months in prison with five years’ supervised release. On the same day, Walker was sentenced to 169 months in prison with five years’ supervised release. Timely notices of appeal were filed.

Issues on Appeal

Both of the appellants raise as issues on appeal (1) denial of their Sixth Amendment rights of confrontation of the deposed witnesses, (2) error in denial of them motions for mistrial because the jury had access to and actually read substantial portions of the transcripts, and (3) error because the appellants were not present during the questioning of the individual jurors.

Additionally, appellant Walker raises the I following issues:

(1) Denial of statutory right to a speedy trial in violation of 18 U.S.C. § 3161.

(2) Error in denial of her motion for a separate trial.

(3) Error in failure to discharge the venire when Brown and Butler pled guilty.

(4) Error in denying a two-level reduction in her base offense level pursuant to U.S.S.G. § 3B1.2 because she played a minor role in the offense.

The Speedy Trial Act Claim

Appellant Walker claims that the Court erred in denial of her motion to dismiss for failure to commence her trial within the statutory 70-day period, citing only 18 U.S.C. § 3161. The record reveals that the government overcame a series of logistical and legal problems, not of its own making, in taking depositions of important witnesses in Japan. The court found that continuing the trial from May 2, 1990 to October 22, 1990, and from October 22, 1990 to February 4, 1991, and finally from February 4, 1991 to April 29, 1991 was necessary because witnesses were absent or unavailable for trial and that the periods of delay were excludable in computing the time within which trial must be commenced pursuant to 18 U.S.C. § 3161(h)(3)(A). The court specifically found that the ends of justice served by such continuances outweighed the interests of the public and the defendants in a speedy trial, 18 U.S.C. § 3161(h)(8)(A). We find no error in these determinations.

The Guidelines Claim

Appellant Walker’s argument assumes the facts alleged by the government. She argues that she was less culpable than other defendants and that she was entitled to a two-level reduction of her base offense level for minor role pursuant to U.S.S.G. § 3B1.2(b).

The government’s version of her role was that she readily agreed to be a courier for the purpose of making money. She made two trips from the United States to Japan for the purpose of bringing back large quantities of heroin. For the first trip she received approximately $14,000. On the second trip she was promised to be paid at least $15,000 for her services as a courier.

In a purely domestic distribution operation couriers, even of large quantities of a controlled substances, may frequently be minor participants. When the crime is importation, however, couriers play a role that is central to the offense. United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).

Her role was not significantly less culpable than that of other couriers. The fact that she was less culpable than “organizers, leaders, managers or supervisors” does not establish that the defendant was a minor participant.

The Court did not err in refusing to reduce her offense level by two points.

The Separate Trial and Jury Venire Issues

Citing no authority, Appellant Walker argues that the Court erred when it denied her motion to sever her trial from that of her sister, codefendant Powell. Walker also argues that the error was compounded when the Court denied the motion to dismiss the jury venire after codefendants Brown and Butler pled guilty during the jury selection process.

The morning after Brown and Butler pled guilty, the court gave the jury the following precautionary instruction:

You will see by looking at counsel table for the defendants that there are now two defendants rather than four, two lawyers representing their respective clients, there are therefore three less lawyers at the table representing two defendants. Let me advise you right now, I will advise those of you who are seated as jurors in the case, that you are not to draw any inference from that. It is a matter that does not concern you at all and you are not to draw any inference.

We find no error in the procedure used by the court.

Powell was charged with offenses in 12 counts, some of which related to the conspiracy to import heroin, but others related to a conspiracy to possess with intent to distribute cocaine. Walker was not charged in the cocaine related counts.

The motion for severance, like the motion to strike the jury venire, was addressed to the court’s discretion.

Evidence of one crime or a series of crimes must be related to the others. United States v. Hatcher, 680 F.2d 438 (6th Cir. 1982). There was a factual relationship between the cocaine and heroin related crimes.

Brown testified concerning the cocaine conspiracy. Immediately following Brown’s direct testimony, the court gave the jury the following instruction:

Ladies and gentlemen of the jury, during the course of this testimony you may have heard testimony by Mr. Brown that related to allegations of the conspiracy to sell cocaine. You are instructed that Florencia Walker is not charged with involvement in this alleged conspiracy. You may not use evidence relating to an alleged conspiracy to sell cocaine in your deliberations of the charges against Florencia Walker.

Appellant Walker was not denied a fair trial by the manner in which the court dealt with either motion.

The Confrontation Issue

The government took reasonable steps to enable the appellants to attend the taking of depositions in Japan without being arrested. The United States government requested from the Japanese government a formal guarantee that the defendants would not be prosecuted in Japan for past conduct. The Japanese government denied the request.

Fearing prosecution in Japan, Walker and Powell elected not to attend the taking of the depositions. Their reluctance to go to Japan was well founded. Walker had previously been arrested and detained for several weeks in Japan. The American witnesses in Japan may well have given Japanese authorities information which would provide a basis for prosecuting the appellants in Japan. For the purpose of ruling on their Sixth Amendment claims it may be assumed that they were effectively prohibited from going to Japan, but also that the United States government was not responsible for the prohibition.

Walker’s attorney and Powell’s attorney were present when the depositions were taken and were given the opportunity to cross-examine the witnesses.

In United States v. Sines, 761 F.2d 1434 (9th Cir.1985), the Ninth Circuit was confronted with a similar situation. In Sines the deposed witness, Steneman, was serving a long prison sentence in Thailand. Sines chose not to attend the deposition because he was afraid he might be arrested there on narcotic trafficking charges. The court rejected the confrontation argument stating:

Sines’ confrontation cross claim is similarly without merit. The Supreme Court has identified the major purpose of the confrontation clause as: (1) ensuring that witnesses will testify under oath; (2) for enforcing witnesses to undergo cross-examination; (3) permitting the jury to observe the demeanor of witnesses. California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970); accord, Mancusi v. Stubbs, 408 U.S. 204, 213 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). All three of these purposes were fulfilled when Steneman’s deposition' was taken with Sines’ attorney present. See, United States v. King, [552 F.2d 833, 842 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) ] (focusing upon ability of defense counsel to investigate case as opposed to defendants’ [sic] ).

761 F.2d at 1441.

We follow the Ninth Circuit on -this issue. We are of the opinion that, under the circumstances of this case, the taking of the depositions in Japan and their use in the trial did not violate the appellants’ Sixth Amendment rights of confrontation.

The District Court order authorizing the taking of the depositions required that the oaths be given by a consular officer of the United States. Appellant Walker’s brief suggests that the record fails to disclose that the oath administered by the consular official, Ms. Smith, was administered within her consular district. The record on appeal does not disclose when and before whom this claim was first made nor is it otherwise documented. Under these circumstances, the argument does not merit consideration.

Denial of Motion for Mistrial

In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court prescribed that a certain procedure be followed when there is an unauthorized private communication or contact with the jury. Narrowly construed, this would not include a situation, as here, in which a document was inadvertently given to the jury by court personnel. However, in United States v. Cooper, 868 F.2d 1505 (6th Cir.), cert. denied, 490 U.S. 1094, 109 S.Ct. 2440, 104 L.Ed.2d 996 (1988), the United States Attorney’s notes on the defendant’s final argument found their way into the jury room. This was treated as a communication requiring the court to conduct a Remmer hearing.

It is the communication’s potential to impact upon a juror’s ability to perform his or her duties impartially, rather than the form or source of the communication, that dictates the necessity for conducting a Remmer hearing.

At first blush, the greatest risk to a fair trial from exposure to the transcripts to the jury was in the highlighted material which had been redacted from the copies of the video tapes which were shown to the jury at the trial. The court found that there was no prejudicial material therein and that, in any event, there was a “very, very strong probability” that none of the jurors had read the highlighted objections and testimony.¹ It does not appear that the appellants quarrel with these conclusions.

It was and is the jury’s double or even greater exposure to selected portions of the testimony of Crawford and Givens that has been the center of the appellants’ concerns. This concern was emphasized by counsel for the defendants at the time of their initial motions for mistrial after receiving the foreman’s note and again in a hastily prepared brief submitted to the court.before the court questioned the jurors individually. In this brief, counsel for Ms. Walker said:

In this case, witness credibility is the entire defense case to the jury. As it relates to Ms. Walker, the entire argument to the jury was that the only testimony against Ms. Walker was that of Crawford and Givens, whom the defense argues are not worthy of belief. We now know that the jury has improperly read unredaeted testimony of both of those witnesses. In fact, the jury question shows that there is a conflict between the transcripts and at least one juror’s recollection of the testimony. We cannot know if any of the other jurors, while silently reading this unredacted transcript, resolved other conflicts between the transcript and the juror’s recollection of testimony by resorting to the transcript.

The potential for double exposure to selected testimony to improperly influence a jury has long been recognized.

In United States v. Padin, 787 F.2d 1071 (6th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986), the Court held that a District Court’s decision to have testimony read back to a jury is governed by a discretion standard. In upholding discretion not to permit “read back” the Court, at page 1076 stated:

Reported cases recognize two inherent dangers in reading testimony to a jury during its deliberations. First, undue emphasis may be accorded such testimony. United States v. Varsalona, 710 F.2d 418, 421 (8th Cir.1983); United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). Second, the limited testimony that is reviewed may be taken out of context by the jury. See, e.g., Government of Canal Zone v. Scott, 502 F.2d 566, 570 (5th Cir.1974). In Henry v. United States, 204 F.2d 817 (6th Cir.1953), this circuit noted that these concerns are escalated after the jury had reported its inability to arrive at a verdict.

The fact that unauthorized and uncontrolled “read back” occurred in this case was clear from the brief testimony of the foreperson of the jury. It created a substantial potential for undue emphasis and a special hazard that limited testimony might be taken out of context.

It is the opinion of the Court that under the circumstances the court had a duty to conduct a Remmer hearing.

In Remmer, the court prescribed the procedures to be followed:

The trial court should ... determine the circumstances, the impact thereof upon the juror and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.

Remmer, 347 U.S. at 229-30, 74 S.Ct. at 451 (emphasis added).

After consulting with counsel, the court, in chambers with counsel present, questioned the jurors individually to ascertain how the transcript had been used by the jury.²

The court did not inquire of the jurors whether their experience with the transcripts had influenced their ability to be fair jurors. One juror, when excused from questioning, volunteered, “Please don’t declare a mistrial, we have tried so hard.”

Based upon juror responses the court found that some, but not all, jurors had read portions of the transcripts that reflected evidence which had been admitted in the form of video tapes.

In addition to finding that the jurors had not read the highlighted material, the court stated, “Further, the Court finds that there is no reasonable possibility that the improperly submitted transcripts would prejudice either defendant, therefore the motions for a new trial are overruled.”

The court informed counsel that it would give the jury a precautionary instruction. Before the jury was brought back, one of the defense attorneys suggested asking the jurors if their exposure to the transcripts would make them feel that they could no longer be fair and impartial. The attorney for the government opined that to do so would be opening Pandora’s box. The court discarded the suggestion.

The jury was then given the following instruction.

THE COURT: Inadvertently a written copy of the videotaped testimony was included with those items of evidence which were sent back with you in the jury room for your consideration. This was not the fault of anyone. The Court assumes control of all exhibits and takes full responsibility for the error.

You are not to give any greater weight to the testimony of those witnesses over any other testimony or evidence simply because you may have had an opportunity to view a portion of the written transcripts. As previously instructed, you are to rely upon your collective memories of the testimony and your own personal notes. You must not and should not consider in any way anything you may have read in the written transcripts. These transcripts are not part of the evidence and cannot be considered.

I will now ask you to continue your deliberations.

Prior to 1982, it seems to have been the consistently applied rule that, upon exposure to a jury to a potentially prejudicial communication, it was the government’s burden to prove that the jury had not been biased by the communication. Since Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), however, there has been a split among the federal circuits with respect to the burden of proof.

In United States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir.1988), the issue was reviewed:

This court has consistently held that Smith v. Phillips reinterpreted Remmer to shift the burden of showing bias to the defendant rather than placing a heavy burden on the government to show that an unauthorized contact was harmless. In United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), this court interpreted Smith v. Phillips as holding that “Remmer does not govern the question of the burden of proof where potential jury partiality is alleged. Instead, Rem-mer only controls the question of how the district court should proceed where such allegations are made_ In light of Phillips, the burden of proof rests upon a defendant to demonstrate 'that unauthorized communications with jurors resulted in actual juror partiality. Prejudice is not to be presumed.” (Footnote omitted).

This court has reiterated its interpretation of Smith v. Phillips in later eases. E.g., United States v. Howard 752 F.2d 220, 223-24 (6th Cir.), cert. denied, sub norri. Shelton v. United States, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985); United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 114, 88 L.Ed.2d 93 (1985). The First Circuit appears to agree with this interpretation. See Neron v. Tierney, 841 F.2d 1197, 1200 (1st Cir.1988); United States v. DeLutis, 722 F.2d 902, 909 (1st Cir.1983). On the other hand, at least two courts of appeals have expressly disagreed with Pennell. See United States v. Butler, 822 F.2d 1191, 1195 n. 2 (D.C.Cir.1987); United States v. Littlefield 752 F.2d 1429, 1431 (9th Cir.1985). Other courts continue to apply Remmer as if Smith v. Phillip's made no change in the burden of proof. Nevertheless, Pennell remains the controlling decision in this circuit.

The court in Pennell also noted the Supreme Court’s rejection in Smith v. Phillips of the idea that a juror’s testimony about her own impartiality is inherently suspect. 737 F.2d at 533. Four points emerge from our decision in Pennell: (1) when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held; (2) no presumption of prejudice arises from such a contact; (3) the defendant bears the burden of proving actual juror bias; and (4) juror testimony at the “Remmer hearing” is not inherently suspect.

862 F.2d at 95-96.

By denying the reasonable request to inquire into the jurors’ states of mind, the defendants were deprived of the opportunity to meet their burden of proving actual juror bias, and were thereby denied a fair trial.

The ease will be remanded for a new trial.

1 . They had read enough to recognize it as forbidden fruit.

2 . The appellants did not object during the proceedings to the fact that the jurors were interrogated in their absence. Although it would have been better for them to have been present, there was no prejudicial error. See United States v. Giacalone, 588 F.2d 1158 (6th Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979).