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
____________________
-2-
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
-3-
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.
-4-
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.
__
-5-
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
-6-
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
-7-
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.
_____________________
____________________
2 Because we vacate the convictions on the grounds stated
herein, we decline to reach the other issues raised by
appellants.
-8-
