United States v. Sanchez

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 8, 2024
• Docket: 22-6207
• Status: Unpublished

Opinion

Appellate Case: 22-6207 Document: 010111028058 Date Filed: 04/08/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 8, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-6207 (D.C. No. 5:21-CR-00183-J-1) OCTAVIO JUAN SANCHEZ, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. _________________________________

A jury convicted Octavio Sanchez of being a felon in possession of a firearm.

After the verdict, it came to light that the jury deliberated in a courtroom equipped

with an active security camera. Concerned that the camera’s presence may have

improperly influenced the jury’s deliberations, Sanchez moved for an evidentiary

hearing and sought to question the jurors about whether they were aware of the

camera, knew it was on, or discussed its presence during their deliberations. The

district court denied the motion, and Sanchez appeals. Because we agree with

Sanchez that the district court abused its discretion by failing to conduct an adequate

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 22-6207 Document: 010111028058 Date Filed: 04/08/2024 Page: 2

investigation into the alleged improper influence, we reverse and remand for further

proceedings consistent with this order and judgment.

Background

In July 2021, the government charged Sanchez with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Four months later, the

case proceeded to a two-day jury trial. Because the trial occurred during the height of

the COVID-19 pandemic, jury deliberations took place in a courtroom, rather than a

designated jury-deliberation room, to allow for social distancing. The jury ultimately

found Sanchez guilty.

After the verdict but before sentencing, Sanchez learned that at another recent

criminal trial in the district, the jury deliberated in a courtroom equipped with a

security camera, and a court security officer (CSO) used that camera to watch the

deliberations. See United States v. Nichols, No. 22-6079, 2023 WL 5994479, at *3

(10th Cir. Sep. 15, 2023) (unpublished). Suspecting that the jury in his case also

deliberated in a courtroom equipped with an active security camera, Sanchez moved

for an evidentiary hearing to investigate the issue. The district court denied the

motion without prejudice on the ground that it was “conclusory at best” because it

cited no authority and gave “no indication as to what a hearing w[ould] achieve.”

R. vol. 1, 156.

Sanchez then filed a second motion for an evidentiary hearing that more

thoroughly developed his position. In particular, Sanchez asserted that the presence

of a camera during jury deliberations would violate “‘the cardinal principle that the

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deliberations of the jury shall remain private and secret’” and could create a “chilling

effect” that stifled debate among the jurors. Id. at 159–60 (quoting United States v.

Olano, 507 U.S. 725, 737 (1993)). Sanchez argued that a hearing was therefore

necessary to determine whether a camera, if present, exerted an improper influence

on the jury’s deliberations. The parties then jointly moved for an order directing the

United States Marshals Service to provide certain information about the jury

deliberations, including whether the deliberations took place in a courtroom equipped

with any cameras. The district court granted the joint motion.

In response, the Marshals Service confirmed that the jury deliberated in a

courtroom equipped with an operating security camera. The Marshals Service further

disclosed that the camera was located in the southeast corner of the courtroom; the

camera recorded the jury deliberations and did not emit any light or noise; no

microphones were on at the time; and the jurors deliberated near the counsel tables at

the center of the courtroom.

After receiving this information, Sanchez sought authorization to ask each

juror three questions: (1) whether they knew there was a camera in the courtroom

during jury deliberations; (2) whether they knew that the camera was operating; and

(3) whether they mentioned or discussed the camera’s presence with anyone. Sanchez

also suggested that these questions could be submitted to the jurors in writing rather

than at an in-court evidentiary hearing. The district court denied Sanchez’s request,

concluding that his concerns about the camera were too speculative to justify “such a

fishing expedition.” Id. at 184. As a result, the district court found Sanchez’s request

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for an evidentiary hearing moot, noting that “[n]o party ha[d] indicated the existence

of any [other] evidence that ha[d] not already been made available to the [c]ourt.” Id.

at 185.

At sentencing, the district court imposed a ten-year prison term and a three-

year term of supervised release. Sanchez appeals.

Analysis

Sanchez argues that the district court erred in failing to adequately investigate

whether the presence of the security camera during jury deliberations improperly

influenced the jury and prejudiced Sanchez. The parties agree that our review is for

abuse of discretion. See J. Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986)

(noting that we apply abuse-of-discretion standard in reviewing “a motion by a losing

[party] to interview jurors”); United States v. Scull, 321 F.3d 1270, 1280 (10th Cir.

2003) (explaining that we “review for abuse of discretion the district court’s decision

to hold a hearing” or otherwise investigate possible improper external influence on

jury).

The Sixth Amendment guarantees a criminal defendant the right to a trial “by

an impartial jury.” U.S. Const. amend. VI. This guarantee requires a jury to reach its

verdict “based [solely] upon the evidence developed at the trial.” Turner v.

Louisiana, 379 U.S. 466, 472 (1965) (quoting Irvin v. Dowd, 366 U.S. 717, 722

(1961)). “The integrity of jury proceedings must not be jeopardized by unauthorized

invasions.” Remmer v. United States (Remmer I), 347 U.S. 227, 229 (1954). Because

the right to trial by an impartial jury is a cornerstone of our criminal justice system,

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we “guard jealously the sanctity of the jury’s right to operate as freely as possible

from outside[,] unauthorized intrusions.” Remmer v. United States (Remmer II), 350

U.S. 377, 382 (1956).

The district court has a “duty” to investigate the circumstances of any “genuine

concerns” about outside influence on jury deliberations. Stouffer v. Trammel, 738 F.3d

1205, 1213–14 (10th Cir. 2013); see also United States v. Bishawi, 272 F.3d 458, 463

(7th Cir. 2001) (“A court faced with a post[]verdict question of jury prejudice is obligated

to ascertain and examine the[] basic facts. To hold otherwise would undermine the

integrity of the jury process.” (citation omitted)). We ordinarily require the district court

“to determine the circumstances of the improper contact [or other extraneous influence]

and the extent of the prejudice, if any, to the defendant.” Stouffer, 738 F.3d at 1214

(quoting Scull, 321 F.3d at 1280). That said, not every allegation of improper influence

requires further investigation. For instance, investigation may be unnecessary “if the

defendant provides only speculation that improper juror contact [or other influence] may

have occurred” or “when there is no evidence any juror actually heard or saw” the alleged

improper influence. Id. at 1214–15. But outside those “rare occasions” in which “it can

be clearly established that [investigation] would not be useful or necessary,” United

States v. McVeigh, 153 F.3d 1166, 1186 (10th Cir. 1998), the district court must

investigate when the defendant raises “genuine concerns” of improper influence, Stouffer,

738 F.3d at 1214.

Sanchez argues that the presence of a camera in the courtroom where the jury

deliberated may have “exerted a ‘chilling’ effect” on their deliberations, creating genuine

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concerns of improper influence and requiring the district court to investigate. Olano, 507

U.S. at 739. The district court reasoned otherwise, determining that a camera that “did not

emit noise or light and did not record audio” did not sufficiently risk chilling jury

deliberations. R. vol. 1, 185. The government likens security cameras to sign-language

interpreters, which “this television-age society has become so accustomed to seeing . . .

that virtually all of us have come to view [them] as part of the background [rather] than

as independent participants” who might inhibit discussion. United States v. Dempsey, 830

F.2d 1084, 1091 (10th Cir. 1987). Sanchez recognizes that security cameras “are

ubiquitous in contemporary society.” Aplt. Br. 12. But he does not assume their ubiquity

renders them incapable of influencing a jury—a point with which we agree. Unlike a

sign-language interpreter, whose purpose is to translate spoken language into signed

language for individuals with hearing loss, a security camera’s primary function is to

surveil. And as Sanchez points out, if the jurors noticed the camera and “thought they

were being watched, they likely thought they were being watched by court employees.”

Aplt. Br. 13. But to protect jury deliberations from improper influence, “juror[s] must

feel free to exercise [their] functions without [a government official] or anyone else

looking over [their] shoulder[s].” Remmer I, 347 U.S. at 229. We therefore agree with

Sanchez that the presence of a camera during jury deliberations—even a camera that

emitted no light or sound and did not record audio—could constitute an improper

influence such that the district court had a duty to investigate the matter. See Stouffer, 738

F.3d at 1213–14.

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Changing tacks, the government next contends that even if the district court had a

duty to investigate, it satisfied that duty by ordering the Marshals Service to provide

information about the camera. But as Sanchez argues, the information provided by the

Marshals Service simply constituted the credible evidence of improper influence that

triggered a need to further investigate. Indeed, although the Marshals Service confirmed

the presence of an operating camera throughout the jury’s deliberations, that confirmation

reveals nothing about whether the jurors knew as much. And without knowing what the

jurors knew, it is impossible to assess whether the camera could have improperly

influenced their deliberations. Indeed, the government effectively concedes the

importance of the jury’s knowledge when it faults Sanchez for “fail[ing] to make—or

even attempt[ing] to make—the threshold showing required (namely, that the jury was

even aware of the camera or that the contact related to the case).” Aplee. Br. 21.

Nevertheless, the government insists that any further investigation into whether

“the jury was even aware of the camera” would be futile because Sanchez merely wants

to ask the jurors about the effect of the camera on the jury’s deliberations, which Federal

Rule of Evidence 606(b) forecloses. Id. Rule 606(b) generally prohibits a juror from

testifying about “the effect of anything on that juror’s vote” or “any juror’s mental

processes concerning the verdict.” Fed. R. Evid. 606(b)(1). But the government

mischaracterizes Sanchez’s request. Sanchez argues only that the district court should

have asked the three questions he proposed to the district court—that is, “whether the

jurors were aware of the camera, knew it was on, and if so, whether they discussed [its]

presence.” Aplt. Br. 17. Those three questions do not relate to the camera’s effect on the

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jurors or their mental processes concerning the verdict. Instead, the questions simply

inquire into whether “an outside influence was improperly brought to bear on any juror,”

which Rule 606(b) permits. Fed. R. Evid. 606(b)(2)(B); see also Vigil v. Zavaras, 298

F.3d 935, 941 (10th Cir. 2002) (noting that Rule 606(b) does not prohibit courts from

considering “the degree to which the jury discussed and considered the extrinsic

[influence]”). Thus, contrary to the government’s argument, Rule 606(b) does not

preclude the jurors from answering the questions Sanchez proposed below.

The government next invokes United States v. Davis, 60 F.3d 1479 (10th Cir.

1995), and United States v. Simpson, 950 F.2d 1519 (10th Cir. 1991), but neither case

supports its position that further investigation would be futile here. In Davis, the district

court refused to conduct an evidentiary hearing after discovering that several jurors

watched television news reports about the trial in an effort to learn who a sketch artist had

drawn during the proceedings. 60 F.3d at 1482. And in Simpson, the district court

similarly declined a hearing after learning that at least one juror saw a codefendant in

handcuffs and discussed it with other jurors, who all knew the codefendant was in jail.

950 F.2d at 1521. Finding no abuse of discretion in either case, we held that further

investigation would have been futile because (1) the record already established that the

jurors were exposed to the alleged improper influence; and (2) Rule 606(b) prohibits

delving into the effect any improper influence might have had on the jurors’

deliberations. See Davis, 60 F.3d at 1484–85; Simpson, 950 F.2d at 1521. But here,

unlike in Davis and Simpson, the district court had no information about whether jurors

were aware of the alleged external influence of the camera, its use during their

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deliberations, or whether they discussed or considered its presence. Instead, the court

knew only that a security camera was present and operating during the deliberations. So

questioning the jurors (either in writing or at a hearing) could, in fact, produce material

and admissible information not already before the district court—information that the

government concedes is critical to establishing the required “threshold showing” of

improper influence. Aplee. Br. 21.

For comparison, consider our recent unpublished decision in Nichols, 2023 WL

5994479.1 There, the defendant unsuccessfully moved for a mistrial or, in the alternative,

for a new trial, after discovering that the jury deliberated in a courtroom equipped with an

operating security camera and that a CSO had watched the deliberations. Id. at *3.

Challenging the denial of his motion on appeal, the defendant argued that the CSO’s

actions could have exerted a “chilling effect” on the jury’s deliberations. Id. (quoting

Olano, 507 U.S. at 739). We acknowledged “the seriousness of the issue” but noted that

“[t]he record contain[ed] no information about whether the jurors were aware of the

camera or its use during their deliberations.” Id. And because the defendant cited no

caselaw allowing a district court “to void a jury verdict based on intrusions into the

sanctity of jury deliberations of which the jurors themselves were not aware,” we found

no abuse of discretion in the district court’s decision to deny his motion. Id.

Here, Sanchez seeks to develop the record—a step the defendant in Nichols

overlooked. And unlike the defendant in Nichols, Sanchez has not pursued a motion for a

1 We discuss this unpublished case for its persuasive value. See 10th Cir. R. 32.1(A). 9 Appellate Case: 22-6207 Document: 010111028058 Date Filed: 04/08/2024 Page: 10

new trial. Instead, he expressly asked the district court to further investigate the matter

and determine whether the jurors knew they were being monitored.2 Indeed, “[w]e do not

know from this record . . . what actually transpired,” Remmer I, 347 U.S. at 229, and the

only way to find out whether the jurors knew about the camera is to ask. Contrary to the

district court’s assessment, and under the circumstances of this case, doing so would not

constitute a “a fishing expedition.” R. vol. 1, 184. For these reasons, we hold that the

district court abused its discretion by failing to conduct an adequate investigation into the

camera’s presence during jury deliberations.3

2 The government faults Sanchez for failing to move for a new trial and asserts that this failure should preclude him from “requesting relief related to a motion for new trial.” Aplee. Br. 19. But because the parties agree that Sanchez had no basis to ask for a new trial without first establishing that the jurors knew about the camera, we reject the government’s waiver argument. 3 The parties raise two additional arguments, but both are premature at this stage. First, the parties dispute whether the district court should apply a presumption of prejudice on remand. See Remmer I, 347 U.S. at 229 (explaining that “any private communication, contact, or tampering[,] directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial” and that the government bears the burden to rebut such presumption). Sanchez suggests in his appellate brief that we direct the district court, on remand, to apply the presumption; the government counters that he is not entitled to it. But as Sanchez conceded at oral argument, consideration of whether a presumption of prejudice applies is premature without further factual development about the jurors’ knowledge of the camera. Second, the government contends that remand is unnecessary because any improper influence on the jury was harmless in light of the overwhelming evidence against Sanchez. But our caselaw makes clear that harmlessness can be considered only after the district court “determin[es] the existence and extent of the prejudice” to the defendant, if any, which it has yet to do. Stouffer, 738 F.3d at 1218–19; see also Davis, 60 F.3d at 1485 (remanding for prejudice and harmlessness analyses despite finding no abuse of discretion in denying evidentiary hearing on improper influence). We leave it to the district court to consider these issues in the first instance, if appropriate, on remand. 10 Appellate Case: 22-6207 Document: 010111028058 Date Filed: 04/08/2024 Page: 11

Conclusion

The information provided by the Marshals Service confirming that a security

camera recorded the jury deliberations constituted credible evidence of improper

influence, which triggered the district court’s duty to investigate. And we agree with

Sanchez that the district court abused its discretion in declining to ask jurors the questions

Sanchez proffered, which do not run afoul of Rule 606(b). We therefore reverse and

remand for the district court to conduct further investigation by questioning the jurors—

whether in person or in writing—to determine whether the camera’s presence influenced

the jury deliberations.

Entered for the Court

Nancy L. Moritz Circuit Judge

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United States of America v. Octavio Juan Sanchez, No. 22-6207 BACHARACH, J., concurring.

In this appeal, we must consider whether the district court should

have asked the jurors three questions about the presence of a camera during

their deliberations. In district court, the defendant had proposed the

questions in a reply brief with only a sparse explanation of the reasons to

ask these questions. With that sparse explanation, the district court had to

consider how the answers

 might help assess the impact of the camera and

 might be used without intruding into jury secrecy.

The district court declined to ask the three additional questions.

On appeal, the defendant’s counsel explains how these questions

could help assess the potential impact on the deliberations. But the district

court didn’t have the benefit of this explanation. Without it, the district

court had little reason to think that the three additional questions would

have mattered. So if the government had urged us to affirm based on the

defendant’s sparse explanation in district court, I would probably have

voted to affirm.

But we generally confine our review to the arguments presented by

the government. See United States v. Woodard, 5 F.4th 1148, 1154 (10th

Cir. 2021) (“In the best of circumstances, we consider it ‘imprudent’ to

craft arguments sua sponte to affirm on alternate grounds.”); United States Appellate Case: 22-6207 Document: 010111028058 Date Filed: 04/08/2024 Page: 13

v. Chavez, 976 F.3d 1178, 1203 n.17 (10th Cir. 2020) (“As a

jurisprudential matter, [crafting arguments for affirmance sua sponte and

without the benefit of the parties’ adversarial exchange] is imprudent

. . . .”). So I don’t think that we should rely sua sponte on the defendant’s

failure to tell the district court why the three additional questions would

matter.

Instead, the panel properly focuses on the government’s appellate

arguments, which rest on speculation about how the defendant would use

the information. Like the majority, I’m not persuaded by these arguments;

I write separately only to note that we—unlike the district court—have the

advantage of a persuasive explanation for the three additional questions.

I. The district court collected information about the camera that was present during the jury’s deliberations.

This appeal grows out of a district court’s efforts to conduct a trial

for unlawful possession of a weapon. See 18 U.S.C. § 922(g)(1). The trial

posed a problem, however, because a global pandemic was raging. Because

of the pandemic, court officials tried to keep jurors a safe distance apart.

But deliberation rooms were often too small to keep jurors apart.

Some courts adapted by moving juries to larger rooms when it was

time to deliberate. For example, the district court arranged in this case for

deliberations in the courtroom because it was big enough for the jurors to

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keep their distance. Unfortunately, no one mentioned the camera that the

marshals used for security.

The jury deliberated in the courtroom and found the defendant guilty.

After the conviction, the defendant obtained new counsel, who knew that

another jury had deliberated in a courtroom with a camera. So the new

attorney requested an evidentiary hearing to determine whether any

cameras had affected the jurors as they deliberated.

To aid the court’s consideration of this request, the parties jointly

asked the court to make the marshals service disclose whether cameras had

been present, whether they were operational, where the cameras were,

whether the cameras emitted light or noise while recording, whether the

cameras recorded during the deliberations, whether any potential

recordings of the deliberations had been saved, whether the courtroom

contained any microphones, whether any of these microphones were

operational, and where the jurors sat when deliberating.

The district court granted the joint motion, and the marshals

disclosed four facts:

1. A security camera was present in the corner of the courtroom.

2. The camera recorded and saved the recording, but didn’t emit light or noise while recording.

3. During the deliberations, there were no microphones in the courtroom.

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4. The jurors sat near the middle of the courtroom when they deliberated.

II. In a reply brief, Mr. Sanchez sought permission to ask three more questions.

With this information, the court needed to decide whether to grant an

evidentiary hearing. The government argued that an evidentiary hearing

wasn’t necessary based on the absence of prejudice. So the court invited

input from the defendant through a reply brief. Defense counsel took

advantage of this opportunity and used the reply brief to propose three

more questions to each juror:

1. Did the juror know that there were cameras in the courtroom during the jury deliberations?

2. Did the juror know that a camera was transmitting video during the jury deliberations?

3. If the answer to either of the first two questions was yes, did the juror mention or discuss the presence of cameras with anyone?

The district court declined to ask these questions or to conduct an

evidentiary hearing.

III. The defendant gave the district court little reason to ask the three questions.

The defendant argues that the district court should have asked these

additional questions. To address that argument, we apply the abuse-of-

discretion standard. See United States v. Davis, 60 F.3d 1479, 1483 (10th

Cir. 1995) (“[T]he decision whether to grant or deny a hearing on a claim

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that a juror was improperly exposed to extraneous information is vested in

the broad discretion of the district courts, and we will review the denial of

a request for such a hearing only for an abuse of discretion.”). Under this

standard, we consider whether

 the district court’s decision was arbitrary, capricious, whimsical, or manifestly unreasonable, or

 the court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.

United States v. Chapman, 839 F.3d 1232, 1237 (10th Cir. 2016).

The court had to exercise its discretion based on the arguments

presented. See United States v. Herrera, 51 F.4th 1226, 1277 (10th Cir.

2022) (stating that “we evaluate the district court’s exercise of discretion

based on the information presented at the time of the ruling”); see also

United States v. Sanchez, 790 F.2d 245, 251 (2d Cir. 1986) (“Our review of

the district judge’s exercise of discretion . . . must be based on the relevant

circumstances confronting the judge at the time of his ruling, without the

benefit of hindsight.”); Logan v. Marshall, 680 F.2d 1121, 1123 (6th Cir.

1982) (per curiam) (“We must evaluate the validity of the court’s ruling in

light of the information available to the trial judge at the time of his

ruling.”). And the district court had been told little about the reasons to

ask the three questions. The defendant had said only that

 “the [g]overnment argue[d] that Mr. Sanchez ‘ha[d] not provided any evidence that the jury was prejudiced during the deliberations’” and 5 Appellate Case: 22-6207 Document: 010111028058 Date Filed: 04/08/2024 Page: 17

 “[defense] counsel ha[d] been prohibited from approaching or speaking to jurors about Mr. Sanchez’s case, and, as such, ha[d] been unable to provide any such information to the Court.”

R. vol. 1, at 179–180.

Without an explanation for why the questions would matter, the court

declined the attorney’s request. The court already knew from the marshals

that a camera was present. The issue was whether the presence of that

camera would have affected the jurors in their deliberations, and the

defendant didn’t say how these questions would have mattered.

On appeal, defense counsel provides persuasive explanations on how

the questions would have helped the district court assess prejudice. The

majority properly credits these explanations, reasoning that

 a security camera’s main function is surveillance,

 the jurors likely would have thought they were being watched if they had noticed the camera,

 the jurors must be free to deliberate without a government official watching them, and

 the presence of the camera could have chilled deliberations.

Maj. Order and Judgment at 6.

If the defendant had provided these explanations, the district court

might have asked the additional questions. But the district court is a

neutral arbiter, not an advocate. The court had to decide whether to ask the

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three questions based on the defendant’s explanation, and that explanation

didn’t include any of the arguments newly presented on appeal.

Given the failure to explain how the answers would have mattered,

the district court had little reason to think that the three additional

questions would have mattered. But the government doesn’t defend the

ruling on this basis. So the majority has properly restricted its review to

the arguments presented by the parties. And based on the government’s

appellate arguments, I agree with the majority’s decision to reverse and

remand for further proceedings.