United States v. Nestor Galindo, United States of America v. Miriam Galindo

913 F.2d 777, 1990 U.S. App. LEXIS 15787
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 11, 1990
Docket89-50285, 89-50287
StatusPublished
Cited by7 cases

This text of 913 F.2d 777 (United States v. Nestor Galindo, United States of America v. Miriam Galindo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Nestor Galindo, United States of America v. Miriam Galindo, 913 F.2d 777, 1990 U.S. App. LEXIS 15787 (9th Cir. 1990).

Opinion

*778 DAVID R. THOMPSON, Circuit Judge:

Nestor William Galindo and Miriam Gal-indo appeal their convictions, following a jury trial, for conspiracy to aid and abet and for aiding and abetting the passing of counterfeit traveler’s checks in violation of 18 U.S.C. §§ 371, 513(a), and 2. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

FACTS

Beginning on January 24, 1989, Nestor and Miriam Galindo were tried before a jury on one count of conspiracy to aid and abet the possession and passing of counterfeit traveler’s checks and on three counts of aiding and abetting the passing of counterfeit traveler’s checks. At trial, the government attempted to show that the Galindos sold counterfeit checks, induced others to cash counterfeit checks and share the proceeds with them, and induced others to use counterfeit traveler’s checks to buy merchandise at department stores, later returning the merchandise for cash refunds.

On January 25, 1989, during a recess in the trial, the Galindos and the government engaged in plea negotiations and arrived at a proposed disposition of the case. The court rejected the proposed agreement and ordered the trial to resume.

Shortly thereafter, the court explained to the jury the reason for the delay: “We had this delay. There was a big long argument as to whether or not there could be a plea bargain worked out where there would be a plea recommended sentencing but I couldn’t get together.” Once the jury had been excused for the evening, the Galindos moved for a mistrial. The court denied their motion.

The next day, before closing arguments were presented, the court gave the jury the following cautionary instruction:

[Yjesterday, I think inadvertently I said something to the effect that the reason we were hung up was that we were wrangling or having legal arguments about a possible plea bargain. But that does not mean that anybody admitted anything or one way or the other.
This plea bargaining business, as you have perhaps noted ... is done all the time. That’s no secret. But I do instruct you you can not draw any inference of any kind for or against either side because there was some bargaining. It’s the way the prosecutors and defense attorneys operate to sometimes expedite cases, with the blessing of the Court, not to indict or not to indicate guilt or innocence or the proof of it on either side. Can you all disassociate that from your minds and decide this case solely on the facts that have been developed and the law that the Court will give you after the argument?
Okay, answer is yes. All right, proceed.

The Galindos renewed their motion for a mistrial, and the court denied it.

The trial concluded that day. The jury then deliberated approximately three days. During deliberations, at the jury’s request, the court read back the testimony of one of the government’s witnesses, Mario Garcia. The jury returned a verdict of guilty on the conspiracy count and on one of the aid and abet counts, and of not guilty on the two other aid and abet counts.

The Galindos moved for judgment of acquittal and for a new trial. The court denied these motions.

DISCUSSION

On appeal, the Galindos argue that the district court should have granted their motion for a new trial, because the court told the jury that plea discussions had occurred. We review the denial of a motion for a new trial for an abuse of discretion. United States v. Lopez, 803 F.2d 969, 977 (9th Cir.1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1959, 95 L.Ed.2d 530 (1987).

We have held that a convicted criminal defendant “is entitled to a new trial if there exist[s] a reasonable possibility that ... *779 extrinsic material could have affected the verdict.” United States v. Vasquez, 597 F.2d 192, 193 (9th Cir.1979). In Vasquez, the official court file in the case had been left inadvertently in the jury room during four hours of jury deliberation. Because the file contained information highly prejudicial to the defendant which had not been brought out at trial and most of the jurors had glanced through or read the file, we concluded that a reasonable possibility existed that the file could have affected the verdict. Id. at 194.

As we have stated, “the Vasquez test is compelled by constitutional considerations.” Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981). This test is “equivalent in severity to the harmless error rule applicable to constitutional errors under [Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)].” Gibson, 633 F.2d at 853.

The Galindos contend that the district court’s mention of the plea discussions prejudiced the jury’s deliberations because at least some of the jurors must have assumed that only guilty defendants engage in plea discussions. We agree that the jury should not be exposed to this kind of information in a criminal case. The district court’s statement that plea negotiations had occurred was error. Moreover, the error was of constitutional dimension, because it affected the Galindos' right to a fair trial. Thus, the Galindos are entitled to a new trial unless the government can prove that no reasonable possibility exists that the court’s statement contributed to the jury’s verdict. Id. at 853 n. 1.

Certainly it is possible that the district court’s statement about plea discussions could have affected the jury’s verdict. However, after a careful review of the record in this case, we conclude that the government has carried its burden by proving that no reasonable possibility exists that the statement could have affected the verdict. Various factors which, when weighed together against the court s statement, lead us to this conclusion.

First, the content of the district court’s statement did not focus on the plea discussions that occurred, but on the delay in the jury’s return to the courtroom. The court made the statement simply to explain the delay. The disclosure that plea discussions had taken place was incidental to the court’s explanation.

Next, the district court gave the jury a curative instruction soon after the Galin-dos’ motion for a mistrial called the error to the court’s attention.

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Bluebook (online)
913 F.2d 777, 1990 U.S. App. LEXIS 15787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nestor-galindo-united-states-of-america-v-miriam-galindo-ca9-1990.