NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                  Nos. 07-4114/4182/2765


             UNITED STATES OF AMERICA

                              v.

      NANCY ELGENDE, a/k/a, NANCY MIRANDA,

                                        Appellant in No. 07-4114.


             UNITED STATES OF AMERICA

                              v.

                        JOSE RIOS,

                                          Appellant in No. 07-4182.


             UNITED STATES OF AMERICA

                             v.

        ALTAGRACIA ROSARIO, a/k/a, “GRACE,”

                                           Appellant in No. 07-2765.



        On Appeal from the United States District Court
                 for the District of New Jersey
( D. C. Nos. 1-06-cr-00414-1; 06-cr-00414-3; 1-06-cr-00414-6)
             District Judge: Hon. Joseph E. Irenas
                        Submitted under Third Circuit LAR 34.1(a)
                           on May 13, 2009 and May 14, 2009

                       Before: AMBRO and ROTH, Circuit Judges
                               and FISCHER*, District Judge

                               (Opinion filed June 10, 2010)



                                       OPINION


ROTH, Circuit Judge:

I. Introduction

       This appeal by Altagracia Rosario concerns the appropriate remedy for juror

misconduct discovered at an early stage in a trial.1 After voir dire and the prosecution’s

opening statement, the District Court learned, near the conclusion of the cross-

examination of the government’s first witness, that two jurors, contrary to the court’s

instructions, had been discussing the case among themselves. The attorney for one of the

defendants requested that the court question jurors about the misconduct. The court




   *
    Honorable Nora Barry Fischer, United States District Judge for the Western District
of Pennsylvania, sitting by designation.
   1
     This opinion covers the appeals of Rosario’s co-defendants Jose Rios and Nancy
Elgende, as well as that of Rosario herself. Elgende adopts the arguments Rosario makes
in her brief on appeal. To the extent that Rios argues additional issues in his pro se letter
to the Court and does not adopt Rosario’s arguments, we dismiss those additional claims
as meritless. Finding no non-frivolous issues on appeal, we will affirm Rios’ conviction.
We have issued three separate orders for the defendants with this opinion.

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refused, choosing instead during the remainder of the trial to issue multiple instructions to

the jurors not to discuss the case among themselves until the appropriate time.

       The trial proceeded, and the defendants were convicted of conspiracy to produce

more than five identification documents in violation of 18 U.S.C. § 1028(a)(1), (b)(1)(B),

and (f). The government’s evidence included testimony from six Bureau of Immigration

and Customs Enforcement (ICE) agents, a Pennsylvania Department of Transportation

(PennDOT) operations manager, an informant, and several alien clients of the defendants.

Other evidence included extensive documentation, recorded telephone conversations

between the defendants, bank records, and surveillance photos and videotapes.

       We conclude that any error the District Court may have made by refusing to

conduct a hearing about the nature and extent of the jurors’ discussions was harmless

because the evidence of the defendants’ guilt was overwhelming. Rosario and Elgende

additionally make an ineffective assistance of counsel claim, which we reject because

again they cannot show prejudice. Accordingly, we will affirm the judgment of the

District Court.

II. Factual Background and Procedural History

       The defendants, Altagracia Rosario, Ronald Henry, Nancy Elgende, Lizette

Mahsel, Chris Nix, and Jose Rios, were involved in a conspiracy to procure fraudulent

Pennsylvania driver’s licenses. The overarching conspiracy lasted from July 2003

through September 2005. Defendants’ clients were aliens. Defendants created fictitious

visas and other immigration documents, such as social security cards and altered

                                              3
passports for clients, at Rosario’s home in Robinsville, New Jersey. Rosario was the ring

leader. With the defendants’ help, the clients would present the fake documents to the

PennDOT office in Bensalem, Pennsylvania, to obtain valid driver’s licenses. The

defendants charged clients as much as $5,000. Over the course of the conspiracy, there

were approximately 150 deposits, totaling over $190,000, made into five separate bank

accounts that Rosario maintained. The conspiracy was uncovered by ICE, using an

informant and court-authorized wiretaps.

         On May 30, 2006, a federal grand jury indicted the six defendants on one count of

conspiracy to produce more than five identification documents in violation of 18 U.S.C.

§ 1028(a)(1), (b)(1)(B), and (f). A superseding indictment against the defendants was

issued in January 2007, expanding the time frame of the conspiracy.

         On May 7, 2007, jury voir dire commenced in the consolidated trial of Rosario,

Elgende, Rios, and Henry.2 Voir dire took place on May 7 and May 8. On May 7, at the

beginning of voir dire, the District Court instructed the prospective jurors not to discuss

the case with each other.

         On May 9, the court gave the jury preliminary instructions prior to opening

statements. In its instructions, the court told the jury not to discuss the case with each

other or anyone else prior to the conclusion of the evidence. The court stated:

                 Now, during the course of this trial, you should not talk about this
         trial with anyone else, not your spouses, not your children, not your


   2
       Henry pled guilty part-way through trial.

                                                4
       relatives, not your co-employees, not friends, strangers, don’t talk to them
       about anything at all about this case. . . .

               Now, I’ve also told you already do not discuss the case among
       yourselves. Because you’re going to spend some time together now, these
       are going to be your close friends soon, you know, in the jury room or
       elsewhere, please don’t discuss the case among yourselves. Wait till you’ve
       heard all the evidence, you’ve heard all the arguments of counsel, then
       you’ll get your shot at it and discuss it at great length. But until that time,
       keep an open mind. Okay? I wish I could dump all the evidence like in one
       second. The trouble is it comes in over a period of time and what you may
       hear the first day, gee, that sounds good, and then the second day you’ll
       hear something that makes you think differently. And I don’t want you to
       express an opinion so strongly that psychologically you don’t want to back
       off[,] even if the evidence should suggest to you [that] you should back off.
       You know, keep an open mind. And one of the ways to do that is not to
       discuss the case among yourselves.

       After opening statements, the government presented its first witness, DHS Special

Agent Patrick Glynn. Glynn testified about two transactions he supervised between

Rosario and a cooperating witness, in which Rosario provided the witness with falsified

identity documents and helped the witness obtain a driver’s license and a commercial

license. The government also presented video surveillance of the portion of those

transactions that took place in the PennDOT parking lot.

       The following day, May 10, near the conclusion of Glynn’s cross-examination, the

court held a sidebar conference. The court told counsel that premature jury deliberations

appeared to have occurred. Juror 1 had passed an unsigned and undated note to the

deputy clerk concerning jurors 5 and 6. The transcript of the sidebar is as follows:

       The court: Let me raise another issue while you’re here. One of the jurors
       – you say it’s – what juror number?


                                             5
Clerk: Carmelita Mayes [juror 1].

The court: She wrote a note. I’ll read it for the record. [“]Jurors 5 and 6
were talking in great detail about trial with very strong opinions.[“] Not
signed. Not dated. Handed to –

Clerk: Me on the way into the courtroom.

The court: Let me tell you how I plan – I do not plan – I don’t believe it’s
reversible error. If every trial were reversed when a juror discussed the
case, every trial would be reversed. I do it to keep pounding away at them
to keep an open mind. I’m going to give them an especially strong
instruction. If I call her out – I don’t think the defense wants to lose her to
my guess. I don’t want to start questioning her about what the jurors said, I
think that intrudes into the jurors’ province.

Henry’s counsel: Your Honor –

The court: His mind is worrying where is the possible error that can be
created here.

Henry’s counsel: She’s telling us two of the jurors already have strong
opinions about the case.

Counsel for the government: I think it says about trials.

The court: It says detail about trial.

Counsel for the government: Oh.

The court: With very strong opinions. She doesn’t say opinions about the
case. It could be about the lawyers. [For example:] He’s terrific. Not only
is he handsome but very, very articulate.

Counsel for the government: Do you know who he’s talking about, Mr.
Borden?

The court: Or what law school did he go to.

Henry’s counsel: This bozo.


                                         6
       The court: And where in the world did he get that suit. So I don’t know,
       you can have strong opinions about all kinds of things.

       Henry’s counsel: Well, they say it’s about – your Honor, candidly I think
       it’s about the substance of the case.

       The court: No, I don’t think it’s a fair statement. For the record do you
       want to create a little error, do you want to make an application?

       Henry’s counsel: My application is the jurors be questioned.

       The court: I’m going to deny that. If every time someone came and said a
       juror discussed the case, every single trial – the fact that they let jurors ask
       questions means the jurors have to be discussing the case to give it. I like to
       do it because it’s my way of pounding away at keeping an open mind, but
       I’m going to make that especially strong this time but I’m not going to
       question the jurors about it. Once I start – this jury has been sworn. If I
       start questioning them about what they heard or what they thought about
       something, that ruins this jury and I’m not going to do it. So your
       application is denied.

       Henry’s counsel: Yes, sir.

       Rather than grant Henry’s counsel’s request that the jurors be questioned, the court

issued a cautionary instruction. Counsel for Elgende, Rios, and Rosario were present at

the sidebar but did not participate in the discussion or explicitly join in the application.

       The jury instruction was as follows:

       The court: Ladies and gentlemen of the jury, I’m not talking to myself, am
       I? I mean, I’m talking to you, aren’t I? Don’t discuss the case among
       yourselves. Don’t express opinions about what’s going on in the case.
       Please keep an open mind. It’s very hard to do and I recognize it’s hard to
       do. . . . But you have to keep an open mind. If two, three, four of you are
       discussing something and the others are following my rule, it becomes – the
       jury as a whole wants to come together and not be apart. If two people or
       three people or four people are discussing something and the other jurors
       are keeping their thoughts to themselves, it creates a bad kind of karma, I
       can’t even translate that, a bad feeling among the jurors. And I urge all of

                                               7
       you, all of you, please let’s keep an open mind. . . . [discussion on the
       piecemeal way evidence comes in at trial] So wait till you hear [all of the
       evidence] and then you can, you’ll get a chance to express your opinions
       without reservation when you go to deliberate your verdict. So humor an
       old man. And I think 800 or 900 years of history has shown us that it works
       best and yields the fairest kind of trial.

At the conclusion of that same trial day, the court told the jury:

       The court: Please do not discuss the case with your family, friends, loved
       ones, space aliens, bus drivers, nobody that you come across in your life.
       Please don’t discuss the case with anybody. And, as I told you last time,
       don’t discuss the case among yourselves. Please keep an open mind until
       you’ve heard all the evidence.

       The trial continued and the court briefly reiterated this instruction throughout the

subsequent nine days of trial. During trial, the juror note and the subsequent sidebar

conversation were the only mentions of the premature deliberations.

       The evidence presented by the government was overwhelming, including

testimony from six ICE agents, a PennDOT operations manager, the informant, and

several alien clients of the defendants. Also, the government presented extensive

documentation, recorded telephone conversations between Rosario and Henry, bank

records, and surveillance photos and videotapes. The jury rendered a guilty verdict

against all three defendants on May 29, 2007.

III. Jury Misconduct3


   3
     The government urges us to adopt a plain error standard of review for the District
Court’s investigation of jury misconduct because it is not clear from the record that all
attorneys, including Rosario’s, joined in Henry’s attorney’s request for the jurors to be
questioned. See United States v. Brennan, 

, 182 (3d Cir. 2003) (“Any non-
contemporaneous objections are subject to plain error review.”). The alternate standard

                                              8
       Rosario and Elgende on appeal claim that the District Court improperly denied the

request for individual juror questioning to determine the extent of the improper

discussion. They suggest that, because of this error, they are entitled to a new trial. We

will not grant a new trial because, even if the court did err in not holding a hearing to

determine the extent of the jury discussions, the error did not cause prejudice. The

evidence against the defendants was overwhelming. Accordingly, any error was

harmless.

       To justify granting a new trial, generally a defendant must show not only that there

was misconduct by a juror but also that the misconduct resulted in substantial prejudice to

the defendant so that the right to a fair trial was impeded. See Gov’t of V.I. v. Dowling,

, 138 (3d Cir. 1987). When considering whether a new trial would be

appropriate, we make our “determination on the basis of an objective analysis by

considering the probable effect of the allegedly prejudicial information on a hypothetical

average juror.” United States v. Gilsenan, 

, 95 (3d Cir. 1991). Prejudice is

not a precisely defined concept but depends on the particular circumstances in the case.

       We recognize that a trial court is in a better position than we are to observe the



of review that may be applicable is abuse of discretion. See United States v. Bertoli, 

, 1392 (3d Cir. 1994) (noting that the Third Circuit reviews a district court’s
investigation of jury misconduct for abuse of discretion). We need not reach either the
issue of whether all the defendants shared in Henry’s objection or the issue of which
standard of review applies. Regardless of the standard, plain error or abuse of discretion,
any error by the District Court was harmless because evidence of guilt against Rosario
and the other defendants was overwhelming.

                                              9
impact of the juror misconduct and to make a determination as to the effectiveness of a

cautionary instruction. See 

–94. For this reason, a trial court

generally has discretion to decide how to deal with juror misconduct. See United States v.

Resko, 

, 690 (3rd Cir. 1993). Nevertheless, we must be satisfied upon review

that “the district court meaningfully . . . assess[ed] the nature and extent of the jurors’

premature discussions in order to ascertain whether there has been any prejudice to the

defendants.” 

Elgende rely exclusively on our analysis in Resko to support their

argument. They incorrectly contend that we established a “bright-line rule” in Resko

“that when intra-jury misconduct occurs, individualized questioning must occur and in the

absence of that questioning neither the district court nor the Appellate Court can conclude

with any certainty whether or not the defendant was denied her constitutional right to a

fair trial and due process of law.” Thus, in this case, Rosario and Elgende suggest that the

juror note automatically required juror examination.

       We have recognized that extra-jury influences are most detrimental to the right of

a defendant to a fair trail by an impartial jury, but intra-jury communications are no less

threatening to a defendant’s Fifth and Sixth Amendment trial rights. See 

. In this case, however, we need not decide whether the District Court was required to

conduct individual questioning of the jurors because, even if it erred in not doing so,

neither Rosario nor Elgende suffered prejudice. The evidence against them

overwhelmingly demonstrates their guilt in orchestrating the false identity scheme. With

                                              10
such substantial evidence pointing to the defendants’ guilt, we cannot say that they were

prejudiced by the District Court’s failure to conduct an individualized assessment of the

juror conversations.

IV. Remaining Claims

       Rosario and Elgende also raise an ineffective assistance of counsel claim, which

we generally do not review on direct appeal because collateral review “allows for

adequate factual development of the claim.” United States v. Morena, 

, 198

(3d Cir. 2008). Here, there is no reason to delay review because, in light of the

overwhelming case against Rosario and Elgende, they cannot demonstrate the necessary

prejudice. See Strickland v. Washington, 

, 692 (1984) (“[A]ny deficiencies

in counsel’s performance must be prejudicial to the defense in order to constitute

ineffective assistance under the Constitution.”). Accordingly, we will deny the

ineffective assistance of counsel claim.

       In a pro se supplemental brief filed shortly before oral argument in this appeal,

Rosario raised the following nine new bases for relief: (1) warrantless seizure and seizure

with a defective warrant; (2) violation of her right to a speedy trial; (3) property seizure

beyond the scope of the warrant; (4) property illegally subject to an administrative

forfeiture; (5) admission at trial of a videotape without audio or transcript; (6) the

government’s failure to present bank statements or bank witness testimony associated

with the $190,000 worth of deposits into Rosario’s bank account; (7) improper sentence

enhancement; (8) alteration of the official record; (9) overstatement of her criminal

                                              11
history. We need not discuss in detail these matters because they are untimely and

meritless.

V. Conclusion

       For the foregoing reasons, we will affirm the judgments of the District Court.




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