United States v. Gaston Brito

• Court: Court of Appeals for the First Circuit
• Decided: August 30, 1995
• Docket: 94-2117
• Status: Published

Opinion

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 94-2117



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 RAFAEL GASTON-BRITO,



                                Defendant - Appellant.



                                 ____________________



          No. 94-2118



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    DANIEL NU EZ,



                                Defendant - Appellant.



                                 ____________________



                    APPEALS FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]
                                               ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Cyr and Stahl, Circuit Judges.
                                           ______________



                                _____________________



               Henry F. Furst for appellant Daniel N  ez and Richard   Ware
               ______________                                ______________

          Levitt for appellant Rafael Gast n-Brito, were on joint brief.
          ______



Jos  A. Quiles-Espinosa, Senior Litigation Counsel, Criminal
               _______________________

          Division, U.S. Attorney's Office, with whom Guillermo Gil, United
                                                      _____________

          States Attorney, was on brief for appellee.


____________________



                                   August 30, 1995

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TORRUELLA,  Chief Judge.   Daniel  N  ez  ("N  ez") and
                    TORRUELLA,  Chief Judge.
                                ___________



          Rafael Gast n  Brito ("Brito")  appeal from  jury convictions  of



          conspiracy  to  possess  cocaine with  intent  to  distribute and



          possession of cocaine with intent to distribute,  in violation of



          21 U.S.C.     841(a)(1) and 846.  Both Brito and N  ez claim that



          the district court erred when it failed to investigate an alleged



          instance of jury misconduct, and that this failure necessitates a



          new trial.  For the following reasons, we reverse.



                                      DISCUSSION
                                      DISCUSSION



                    The  focus of  this case  was  a drug-trafficking  ring



          bringing cocaine from Puerto Rico to New York.  The facts came to



          light  when  one  of  the  drug  couriers,  Harry  Benjam n  D az



          ("D az"),  was  arrested   and  agreed  to  cooperate   with  the



          government.



                    D az offered  detailed testimony that, from January 19,



          1993 to January 26, 1993, he participated with N  ez and Brito in



          several successful and unsuccessful  efforts to transport cocaine



          from Puerto Rico  to New  York.   In the course  of his  detailed



          testimony, D az  testified that on  January 25, 1993,  N  ez paid



          him $15,000 for successfully delivering  a load of cocaine to New



          York.   During cross-examination,  counsel for  N  ez asked  D az



          whether  the government had  required him  to return  the $15,000



          N  ez allegedly had given him.  D az then testified that his wife



          had been  forced to give the  money to unnamed persons,  and that



          the  money was  therefore no  longer in  his possession  when the


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government  asked  him   to  surrender  it.     Specifically,  he



          testified:



                      I was asked to [turn over the money], but

                      when [the  government] asked  me my  wife

                      had already told me they  had ordered her

                      to  give it  to them.   Who ordered  it I

                      don't  know, but they  ordered it  and if

                      she did not turn it over they threaten to

                      kill the little girl, but who ordered  it

                      I don't know.



                    Immediately following this testimony, counsel for Brito



          requested permission  to  approach the  bench.   He informed  the



          court that when  D az was asked to identify the person or persons



          who had taken  the money from D az'  wife, Steve Riley, the  Case



          Agent  sitting  at the  prosecution  table,  made  a hand  signal



          pointing  to  the defense  table.1    Counsel  then moved  for  a



          mistrial.   The court immediately denied the  motion.  Appellants



          now  claim that the district court erred in refusing to declare a



          mistrial without  first  investigating the  alleged  incident  to



          determine whether it had been seen by the jurors.



                    Juror   misconduct   claims   fall  under   two   broad



          subheadings: juror bias and  improper juror contacts.  "Both  are



          at the  core of  the Sixth  Amendment's right  to a  trial by  an



          impartial  jury,   free  from   prejudicial  contact.     Private

                              
          ____________________



          1  Counsel for Brito described the gesture to the court, stating:



                      The way  I saw it  was the Agent  that is

                      sitting between two  counsel -- the Agent

                      Mr.  Riley -- he has his hands crossed in

                      his chest,  and [when]  the question  was

                      asked for the  second or third time,  the

                      last time -- when I made the objection --

                      he simply pointed his first finger at the

                      defense table.



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communications  with a deliberating juror create the concern that



          the  juror may  reach  a  verdict on  the  basis  of the  matters



          communicated, rather than  the trial evidence."  United States v.
                                                           _____________



          Day, 830 F.2d  1099, 1103 (10th Cir.  1987).  Thus,  although the
          ___



          appellants do not allege any wilful misconduct on the part of the



          jurors themselves, we  analyze their claim  here under the  broad



          rubric of juror misconduct because the alleged incident created a



          risk that the jurors were prejudiced by facts not in evidence.



                    The law on the  subject is well settled.   "When a non-



          frivolous suggestion is made that a jury may be biased or tainted



          by  some incident, the district court  must undertake an adequate



          inquiry to determine whether the alleged incident occurred and if



          so,  whether  it  was  prejudicial."    United States  v.  Ortiz-
                                                  _____________      ______



          Arrigoit a, 996 F.2d 436, 442 (1st Cir. 1993).  United  States v.
          __________                                      ______________



          Boylan, 898 F.2d  230, 258 (1st Cir.), cert. denied, 498 U.S. 849
          ______                                 ____________



          (1990);  United States  v. Anello, 765 F.2d 253, 258  (1st Cir.),
                   _____________     ______



          cert. denied, 474 U.S. 996 (1985); United States v. Corbin,   590
          ____________                       _____________    ______



          F.2d 398, 400 (1st  Cir. 1979).  The  district court has  "broad,



          though  not unlimited,  discretion to  determine  the extent  and



          nature of its  inquiry into allegations of juror  bias."  Corbin,
                                                                    ______



          590 F.2d at 400.  Thus, although  the trial court must "conduct a



          full  investigation  to  ascertain   whether  the  alleged   jury



          misconduct actually  occurred," United  States v.  Doe, 513  F.2d
                                          ______________     ___



          709, 711-12 (1st Cir. 1975),  it has "discretion to determine the



          extent and  type of  investigation requisite to  a ruling  on the



          motion [for mistrial.]"  Id. at 712.
                                   __


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Our  previous  cases  have "abjure[d]  imposition  of a



          rigid set of rules for the conduct of inquiries into the presence



          or   extent   of   extrinsic  influences,   [noting]   that   the



          kaleidoscopic variety of  possible problems counsels in  favor of



          flexibility."  Boylan, 898 F.2d at 258.  Thus,
                         ______



                      [s]o long as  the district judge  erects,

                      and  employs,  a suitable  framework  for

                      investigating the allegation  and gauging

                      its  effects, and  thereafter spells  out

                      his findings with adequate specificity to

                      permit  informed  appellate  review,  his

                      "determination that the jury has not been

                      soured deserves great respect [and] . . .

                      should not be disturbed in the absence of

                      a patent abuse of discretion."



          Id.  (quoting  Hunnewell,  891  F.2d  at  961)  (other  citations
          ___            _________



          omitted).



                    The  circumstances of this case invoke a more stringent



          standard, however,  because the  appellants alleged  an ex  parte
                                                                  _________



          communication by  a  government  agent  with the  jurors.    "Any



          unauthorized communication between jurors  and persons associated



          with the  case is  presumptively prejudicial"  and obligates  the



          court to "conduct a  sufficient inquiry to determine whether  the



          communication was harmless."  United States  v. O'Brien, 972 F.2d
                                        _____________     _______



          12, 14 (1st  Cir. 1992).  See  also Remmer v. United  States, 347
                                    _________ ______    ______________



          U.S.  227,  229  (1954)  (ex  parte  communication,  contact,  or
                                    _________



          tampering with  a juror during  the trial about a  matter pending



          before  the  jury  is presumptively  prejudicial).    Under these



          circumstances, the  appellants' claim  was clearly  non-frivolous



          and  obligated  the court  to  undertake an  adequate  inquiry to


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determine  whether the  alleged  incident  occurred  and  if  so,



          whether it was harmless.



                    The district  court failed  in this  obligation, as  it



          denied the motion  for a mistrial without any investigation.   It



          neither questioned  the Case Agent  nor voir dired the  jurors to



          determine whether the Case Agent had made the alleged gesture, or



          if he  had, whether any of the jurors had  seen it.  Instead, the



          district court summarily concluded that  even if the incident had



          occurred,  no  harm  had  inured  to  the  defendants.    Such  a



          conclusion, however, cannot stand unless supported by an adequate



          inquiry,  for an unauthorized  communication between a  juror and



          someone associated with  the case is "deemed  prejudicial" unless



          it is completely  unrelated to the case or otherwise  shown to be



          harmless.   O'Brien, 972 F.2d  at 14; see  also Day, 830  F.2d at
                      _______                   _________ ___



          1104 (10th Cir.  1987) (restroom communication between  juror and



          federal agent seated  at prosecution table was merely  a "casual,



          time-of-the-day greeting" and, although improper, was found to be



          harmless).   Here, although the communication alleged was clearly



          connected  to  the  case,  the  district  court  made  no  effort



          whatsoever to see if it was in fact harmless.



                    Moreover, regardless of the  presumptions employed, the



          alleged  communication  clearly  posed  a  danger  of  prejudice.



          Counsel  for Brito  claimed  that the  Case  Agent's gesture  had



          implicated N  ez  as the  unnamed person who,  by threats  to her



          daughter, forced D az'  wife to return the $15,000  D az had been



          paid for his courier services.   If the gesture in fact  occurred


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and  was  seen  by  the jurors,  they  might  impermissibly  have



          included it in the calculus  of their deliberations.  Further, we



          note that the gesture was allegedly made by the Case  Agent, whom



          the jury might reasonably have  presumed to have access to inside



          information.   Thus,  had the  alleged gesture been  observed and



          understood to suggest  the defendants' complicity in  the threats



          to D az'  family, the jury  might well have given  it substantial



          credence.  It may well be that the gesture  was never made, or if



          it was, that no  jurors saw it; but if such was  the case, it was



          the district court's obligation to  develop the relevant facts on



          the  record, not  merely  presume  them.   As  the Supreme  Court



          explained in Smith v. Phillips,  455 U.S. 209, 212 (1982), "[d]ue
                       _____    ________



          process  means a  jury capable  and  willing to  decide the  case



          solely on the evidence before it, and a trial judge ever watchful



          to prevent prejudicial occurrences and to determine the effect of



          such occurrences when they happen."  The district court's failure



          to  conduct a sufficient  inquiry clearly deprived  appellants of



          this  right, and  therefore requires  that  their convictions  be



          vacated.2



                    Reversed and remanded.
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          2   Because  we  vacate  the convictions  on  the grounds  stated

          herein,  we  decline   to  reach  the  other   issues  raised  by

          appellants.



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