June 21, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
______________________
Nos. 91-1290
91-1365
91-1366
UNITED STATES,
Appellee,
v.
LUIS E. ORTIZ-ARRIGOITIA, a/k/a COLIBRI, et al
Defendants, Appellants
_________________________________________________
ERRATA SHEET
The opinion of this court issued on June 11, 1993, is
amended as follows:
On page 19, fourth line of footnote 2, replace "n.4" with
"n.9."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-1290
UNITED STATES,
Appellee,
v.
LUIS E. ORTIZ-ARRIGOITIA, a/k/a COLIBRI,
Defendant, Appellant.
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No. 91-1365
UNITED STATES,
Appellee,
v.
LUIS HIRAM ORTIZ-CAMERON,
Defendant, Appellant.
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No. 91-1366
UNITED STATES,
Appellee,
v.
PEDRO MEDINA-VAZQUEZ, a/k/a PURUCO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________
____________________
Before
Selya and Stahl, Circuit Judges,
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and Skinner,* District Judge.
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Samuel I. Burstyn argued for appellants Ortiz-Cameron and Medina-
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Vazquez and was on brief for appellant Ortiz-Cameron.
Jose R. Franco Rivera argued for appellant Ortiz-Arrigoitia and
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was on joint brief for appellants Ortiz-Arrigoitia and Medina-Vazquez.
Luis Rafael Rivera on joint brief for appellants Medina-Vazquez
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and Ortiz-Arrigoitia.
Joseph S. Uberman, Attorney, Criminal Division, U.S. Department
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of Justice, with whom Robert S. Mueller, III, Assistant Attorney
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General, Mary Lee Warren, Chief, Criminal Division, U.S. Department of
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Justice, Hope P. McGowan, Attorney, Criminal Division, U.S. Department
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of Justice, and Daniel F. Lopez Romo, United States Attorney, were on
____________________
brief for appellee.
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June 11, 1993
____________________
______________________
* Of the District of Massachusetts, sitting by designation.
SKINNER, District Judge. These appeals are from convictions
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on assorted charges of conspiracy, importing and possessing
large quantities of marijuana and cocaine, aiding and
abetting therein and, in the case of Medina Vazquez,
possession of a firearm in connection with the drug charges.
These defendants were tried together with two others. This
trial was part of the serial prosecution of some 55 members
of a large scale drug importation and distribution
organization known as "La Nena." Of their numerous
assertions of error, the most serious is the denial of their
motions for a mistrial after discovery by the court that
four of the jurors had arrived at a conclusion concerning
guilt prior to the presentation of the defendants' evidence.
We reserve our discussion of this difficult issue until
last.
l. Sufficiency of evidence.
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All defendants challenge the sufficiency of the
evidence against them because the government's case depended
on the testimony of Geraldo Portalatin Toledo
("Portalatin"), a leading member of the "La Nena" drug
organization. Defendants argue that Portalatin's testimony
was so unreliable and so sketchy as to them, that it was
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insufficient as a matter of law. Portalatin was cross-
examined concerning his deals with the government. The
judge gave complete and correct instructions detailing the
special care the jury should take in assessing the testimony
of an accomplice. Under these circumstances, an accomplice
is a qualified witness and the credibility of the witness is
for the jury. United States v. Restrepo-Contreras, 942 F.2d
___________________________________
96, 99 (1st Cir. 1991) (it is the province of the jury to
assess the credibility of a witness), cert. denied, 112 S.
____________
Ct. 955 (1992). Portalatin testified that Ortiz Arrigoitia
and Medina Vazquez helped unload various shipments of
marijuana and cocaine and Ortiz Cameron participated in the
unloading and distribution of a load of cocaine at a
"clandestine airfield" at La Furnia Farm in Barceloneta,
Puerto Rico. Portalatin's evidence, if believed, when
considered with the other evidence in the case was
sufficient to support conviction by the jury,
notwithstanding Portalatin's unsavory history and the
contrary evidence presented by the defendants.
2. Improper admission of testimony.
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Ortiz Cameron further asserts error in the
admission of evidence. Portalatin testified that the driver
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of a Chevrolet "power wagon" (apparently a four-wheel-drive
truck) which was used to remove the cargo of cocaine after
an incoming plane crashed at Furnia was "Hiram," whom he
identified as Luis Hiram Ortiz Cameron, the defendant.
Portalatin had been in the plane which crashed, had bumped
his head, had pulled the pilot out of the plane and had
described himself as "shaken" by the experience. Ortiz
Cameron argues that Portalatin's condition made him so
unreliable that his testimony should not have been allowed.
There is no evidence, however, that he was in any way
incapacitated. He pulled the pilot from the plane and
helped salvage the cargo. He then spent two hours beside
"Hiram" as the latter drove the "power wagon" to the
destination of the contraband. Under such circumstances,
his credibility was for the jury.
During the cross-examination of Portalatin, the
defense attorney discovered for the first time that
Portalatin, during his debriefing by government agents, was
shown a picture of Ortiz Cameron. He immediately identified
the picture, saying "That's Hiram." It does not appear that
any suggestive comment was made. This picture was not part
of a spread, however, and it was shown to Portalatin in the
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course of the discussion of his participation in the various
drug transactions.
Defense counsel moved that Portalatin's testimony
concerning Ortiz Cameron be stricken as unacceptably
tainted. Among other reasons, he asserted that he had not
been shown the photograph in question, and that the evidence
packet furnished by the prosecution contained copies of
photographs which were simply blotches of white on black.
The prosecutor replied that all defendants had been invited
to the office of the United States Attorney to view all of
the government's hundreds of exhibits, but that none of them
had taken advantage of the opportunity. The trial judge
made no explicit finding, but apparently accepted the
prosecution's explanation. He offered to suspend the trial,
however, to provide defense counsel an opportunity to
examine the photo and to develop any evidence of improper
suggestion. Counsel declined and proceeded with the cross-
examination of Portalatin. Not until eight days later, at
the close of all the evidence, did counsel move for a voir
____
dire of Portalatin to explore any possible taint. This
____
untimely motion was denied.
The reliability of identification testimony
allegedly tainted by reason of an impermissibly suggestive
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photograph should be resolved after consideration of all the
circumstances. Manson v. Brathwaite, 432 U.S. 98, 113-14
_____________________
(1977); United States v. Bouthot, 878 F.2d 1506, 1514 (1st
_________________________
Cir. 1989). In this case, it would appear that Portalatin
had spent over two hours in the close company of "Hiram,"
albeit at night and under difficult circumstances. He knew
Hiram's first name before the photograph was identified.
The district judge's offer to suspend the trial to
permit further investigation was refused. The defendant was
doubtless entitled to a voir dire examination of Portalatin
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before proceeding with the cross-examination, but certainly
not eight days later. There was no error in the denial of
his untimely motion. Similarly, we find no error in the
trial judge's decision to permit Portalatin's identification
to stand.
Ortiz Cameron also alleges error in the admission
of testimony concerning his disappearance from his normal
whereabouts immediately after the "La Furnia" episode and
concerning his wealth, which the government asserted could
only be explained by his participation in illicit drug deals
over a period of time. The defendant had ample opportunity
to rebut such testimony. It is well established that
unexplained flight or a defendant's attempt to conceal his
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identity may be relevant evidence of guilt. See, e.g.,
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United States v. Grandmont, 680 F.2d 867, 869 (1st Cir.
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1982). Similarly, evidence of the acquisition of otherwise
unexplained wealth may corroborate other evidence of
participation in lucrative crimes. United States v. Ariza-
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Ibarra, 605 F.2d 1216, 1224-25 (1st Cir. 1979), cert.
______ _____
denied, 454 U.S. 895 (1981).
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3. Severance.
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All three defendants moved before trial for a
severance on the ground that there would be prejudicial
"spill-over" of evidence from one to the other. Such a
motion is addressed to the sound discretion of the trial
judge. United States v. Natanel, 938 F.2d 302, 308 (1st
__________________________
Cir. 1991), cert. denied, 112 S. Ct. 986 (1992); United
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States v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert.
_________________ _____
denied, 111 S. Ct. 139 (1990). Where defendants are
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indicted in a common conspiracy, there necessarily will be
evidence relevant to the charges against more than one
defendant, and properly so, since co-conspirators are liable
for all of the criminal acts carried out in furtherance of
the conspiracy. United States v. Figueroa, 976 F.2d 1446,
_________________________
1452 (1st Cir. 1992). The district judge properly exercised
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his discretionary power in denying the motion and properly
instructed the jury to consider the evidence against each
defendant separately.
Defendants Ortiz Arrigoitia and Medina Vazquez
renewed their motion after the defendant Ortiz Cameron
called Rafael Tormes, a convicted member of the same drug
conspiracy, as a witness. On the stand, Tormes testified
that Ortiz Cameron had nothing to do with the La Furnia
unloading. He did not in any way incriminate Ortiz
Arrigoitia or Medina Vazquez. No inconsistent defense was
presented. All that occurred was that on cross-examination
Tormes corroborated some of the details of Portalatin's
testimony. The prejudice claimed by Ortiz Arrigoitia and
Medina Vazquez is that by so doing Tormes bolstered the
credibility of Portalatin to their detriment. The
defendants have offered no authority in support of the
dubious proposition that this entitles them to a mistrial,
and we have found none. See United States v. Angiulo, 897
___ ________________________
F.2d 1169, 1194-95 (1st Cir. 1990) (finding
withdrawal/noninvolvement defense insufficiently
antagonistic to require severance); United States v. Luciano
________________________
Pacheco, 794 F.2d 7, 8-10 (1st Cir. 1986) (explaining that
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the degree of antagonism must go beyond mere finger pointing
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into the realm of fundamental disagreement over core and
basic facts); United States v. Talavera, 668 F.2d 625, 630
__________________________
(1st Cir.) (concluding that antagonistic defenses do not per
se require severance, even if the defendants are hostile or
attempt to cast blame on each other), cert. denied, 456 U.S.
____________
978 (1982). The district judge properly denied the
defendants' motions for severance and a mistrial.
4. Improper Argument.
_________________
In the course of his closing argument, the
prosecutor said with reference to the defense attorneys,
"they want like to scramble your heads, confuse you." After
an objection was overruled, the prosecutor repeated "They
wanted to confuse your head." Later the prosecutor said,
"Do not let the attorneys here intimidate you, ladies and
gentlemen -- ."1 Defense counsel objected. The judge
responded by addressing the jury: "I don't believe that the
attorneys for the defendants are intimidating the jurors so
--."
In this particular instance we are not persuaded
that these comments were so prejudicial as to require
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1This quotation and the following one were unfinished
sentences according the transcript and are not ellipses
created by the author of this opinion.
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reversal. We do not understand, however, why, after
numerous warnings from this court, the prosecuting attorneys
in the District of Puerto Rico persist in spiking their
arguments with comments that put their cases at risk. See,
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e.g., United States v. Nickens, 955 F.2d 112, 120 (1st Cir.
_____ ________________________
1992); United States v. Soto-Alvarez, 958 F.2d 473, 477-78
______________________________
(1st Cir. 1992); United States v. de Leon Davis, 914 F.2d
________________________________
340, 344-45 (1st Cir. 1990).
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5. Sentencing errors.
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Medina Vazquez argues that the district judge
erroneously refused to reduce his offense level by four
because of his minimal participation. U.S.S.G. 3B1.2.
The comment (n. 2) to the cited section suggests that this
reduction should be used sparingly, e.g., in a case where
the defendant was engaged in a single off-loading. In this
case there was credible evidence that Medina Vazquez had
been involved in a number of off-loadings. In the absence
of any transcript of the sentencing hearings in either the
record or the supplementary record, we shall assume that the
district judge made appropriate findings of fact. See,
____
e.g., Valedon Martinez v. Hospital Presbiteriano, 806 F.2d
_____ ___________________________________________
1128, 1135 (1st Cir. 1986) ("We have held repeatedly that we
will not review a claim of error if the appellant has failed
to include a transcript of the pertinent proceedings in the
record on appeal.").
Ortiz Cameron argues that the district judge
failed to make sufficiently detailed findings of fact in
resolving factual disputes raised by objections to the
presentence investigation report ("psi"). In fact, those
objections to the psi present in our record on appeal raised
no substantial factual issues, except that of guilt, which
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had already been resolved by the jury. The district judge's
findings were more than adequate under the circumstances.
6. Ineffective assistance of counsel.
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Ortiz Cameron alleges ineffective assistance of
trial counsel. We have repeatedly held that, absent
exceptional circumstances, this claim is not open on direct
appeal unless it has been previously raised before the
district judge, who is in the best position to make an
initial judgment. See, e.g., United States v. Gray, 958
__________ ______________________
F.2d 9, 15 (1st Cir. 1992). This issue was not presented to
the district judge, who in fact praised trial counsel for
his diligence at one point in the trial.
7. Recusal.
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After the trial in this case the trial judge
recused himself from the trial of Sonia Berrios Rodriguez,
"La Nena," the purported head of the drug ring, on the
grounds of his familiarity with the facts of the case
because of previous related trials, of which this was one.
Ortiz Cameron claims that this shows that the judge was
prejudiced and should have recused himself earlier. In fact
the judge was under no obligation to recuse himself from the
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trial of "La Nena," but did so as a matter of discretion.
In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989).
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Defendant's argument is frivolous.
8. Motion for Mistrial Resulting from Jury Misconduct.
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The major controversy in this case swirls around
events stemming from allegations of juror misconduct. There
are two issues that arise in this context. First, we must
decide whether the district court's finding regarding juror
impartiality was clearly erroneous. Second, we must decide
whether a remark made by the district court while
investigating the question of juror impartiality improperly
shifted the burden of proof. While these two questions are
factually intertwined in this case, they are analytically
distinct, and we therefore consider them seriatim.
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A. Background.
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At the close of the government's case, the judge
was advised that the daughter of a juror, who had been daily
accompanying her mother to the court, had been observed in
prolonged conversation with a young woman identified as the
girl friend of the defendant Ortiz Cameron. The district
judge then interviewed the daughter and her mother, the
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juror. It appeared from these interviews that the juror had
discussed the case at length with her daughter, and had
expressed very definite views about the testimony of the
government's witnesses. The daughter also reported her
understanding from talking with her mother that the jurors
had discussed the case among themselves. The juror was then
segregated from the other jurors and later excused.
The judge then summoned all of the jurors into
chambers, one by one, and asked them the following series of
questions:
l. At this point, have you discussed with the
jurors or anyone else the guilt or innocence of
the defendants?
2. Have you discussed with the other
jurors or with anyone the reputation of
the defendants?
3. Have you discussed with the other
jurors or with anyone else the
credibility of any of the witnesses?
4. At this point, have you reached a
decision regarding the guilt or
innocence of the defendants?
All of the jurors except one answered the first three
questions in the negative. One juror said that he thought
he had heard some comment about the case but could not
remember what it was about. Four jurors, however, answered
the fourth question in the affirmative, indicating that they
had reached a decision concerning the guilt or innocence of
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the defendants. The judge then recalled these four jurors,
again one at a time, and addressed each one as follows:
As I instructed you before, the guilt or
innocence of the defendants is decided
after listening to all the evidence, to
the final summations of the attorneys
and after applying the instructions as
to the law to be given by me.
And my question is, would you be able to
keep an open mind and in the course of
your deliberations with your fellow
jurors, re-examine your own views and
change your opinion if convinced it is
erroneous?
All four of the jurors answered emphatically in the
affirmative. The district judge then declared that he was
satisfied that the jurors would carry out their duty
properly, based on their answers and his observation of
their demeanor.
Counsel for Ortiz Cameron and counsel for Medina
Vazquez (and counsel for another defendant whose appeal is
not before us) moved for a mistrial. Counsel for Ortiz
Arrigoitia expressly declined to so move at that time and
joined in the motion only at the very end of the case, just
before closing arguments. In response to the judge's
comment, counsel for Ortiz Arrigoitia admitted that he had
initially refrained from joining the motion for the purpose
of claiming double jeopardy if the motion had been granted
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without his consent. It is our view that a motion for a
mistrial should be made promptly. This was no case of
mistake or inadvertence, but one of deliberate delay for
tactical purposes. Failure to make a timely motion for
mistrial under these circumstances constitutes a waiver and
precludes consideration of this issue on appeal with respect
to Ortiz Arrigoitia. Cf. United States v. DiPietro, 936
___ __________________________
F.2d 6, 9-10 (1st Cir. 1991) (inferring waiver of a
defendant's constitutional protection against double
jeopardy from silence where the defendant had the
opportunity to object but failed to do so until one day
later); Grimaldi v. United States, 606 F.2d 332, 339 (1st
__________________________
Cir.) (explaining that where defendant had the opportunity
to renew a motion for mistrial for prosecutorial misconduct,
but declined to do so, the claim was not preserved for
appeal), cert. denied, 444 U.S. 971 (1979); Saville v.
______________ ___________
United States, 400 F.2d 397, 400 (1st Cir. 1968) (concluding
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that motion for mistrial was untimely where defendant failed
to act at the earliest possible opportunity), cert. denied,
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395 U.S. 980 (1969).
B. District Court's Finding.
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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. See, e.g., Boylan, 898 F.2d at 258; United
__________ ______ ______
States v. Anello, 765 F.2d 253, 259 (1st Cir.), cert.
_________________ _____
denied, 474 U.S. 996 (1985); United States v. Corbin, 590
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F.2d 398, 400 (1st Cir. 1979). The trial judge is not,
however, shackled to a rigid and unyielding set rules and
procedures that compel any particular form or scope of
inquiry. Rather, in light of the infinite variety of
situations in which juror misconduct might be discerned and
the need to protect jurors and the jury process from undue
imposition, the trial judge is vested with the discretion to
fashion an appropriate and responsible procedure to
determine whether misconduct actually occurred and whether
it was prejudicial. Boylan, 898 F.2d at 258. As we have
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often explained, "A district court has broad, though not
unlimited, discretion to determine the extent and nature of
its inquiry into allegations of juror bias." Corbin, 590
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F.2d at 400.
In this case, upon discovering that a juror may
have spoken about the trial to her eighteen year-old
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daughter, the district court immediately summoned the juror
and the daughter to chambers for separate interviews in the
presence of all counsel. The juror confirmed that she had
spoken to her daughter about the defendants, but denied that
she had talked to the other jurors about the case. The
district court promptly segregated the juror and announced
his intention to interview individually all jurors to
determine if any others had been tainted. The following
morning all jurors denied speaking about the case to
outsiders or each other, though one thought he had heard
some comment among the jurors about the case without
identifying what those comments concerned. Counsel were
present but were not permitted to participate directly in
the interviews; however, the questions posed by the judge to
the jurors reflected concerns previously expressed by
counsel. Counsel has no right to pose specific questions to
a juror or to pursue every desired avenue of inquiry. The
control and direction of a court's investigation into juror
misconduct is within the discretion of the district court,
not defense counsel. Corbin, 590 F.2d at 400.
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After interviewing all the jurors and relevant
third parties, consulting with counsel, and weighing the
testimony, demeanor, and credibility of the various parties,
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the court found the jurors were not partial. The trial
court conducted an adequate investigation into the alleged
misconduct and reached a reasonable conclusion about the
jurors' impartiality. Ortiz Cameron and Medina Vazquez
present no compelling evidence to the contrary and we find
nothing in the record that leads us to believe that the
district court's investigation was inadequate or his
findings clearly erroneous.2
C. Remark By Judge.
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It is also suggested that the district court
shifted the burden of proof when it asked the four jurors:
"would you be able to keep an open mind and in the course of
your deliberations with your fellow jurors, reexamine your
own views and change your opinion if convinced it is
erroneous?" Although recognizing that the judge's remark is
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2Our dissenting colleague suggests an "alternative ground
for reversal" -- the district court's failure to inquire
into Juror Carrero-Roman's statement that members of the
jury had discussed the case. See Stahl, n.9. The
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defendants, however, have not specifically argued this issue
on appeal. In any event, we do not consider the alternative
ground to be meritorious. Juror Carrero-Roman's answer was
extremely indefinite and, on the facts of this case, did not
require a full-fledged judicial inquiry. Moreover, the
judge essentially conducted a full-fledged inquiry when he
asked the other jurors questions which would have revealed
precisely the impropriety which Judge Stahl fears.
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less than a textbook model, we do not view the language
employed, in the specific context of this case, as
suggesting that the defendants bore the burden of proving
their innocence.
First, the judge's remark was not an instruction
at all but a question asked mid-trial in the context of an
investigation we have otherwise held to be sufficient. See
___
supra Part A. Second, the question -- even if somehow
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deemed to be an instruction -- did not place the burden of
proof on any specific party but merely asked whether the
jurors retained the ability to reexamine their views in
light of further developments. Indeed, the judge
scrupulously avoided indicating what particular views he
thought the jurors possessed and instead referred only the
jurors' ability to change their "opinion," whatever it might
be. Third, again assuming that the question were to be
deemed an instruction, the defendants did not give the
district court an opportunity to cure it by, at any stage,
proposing a sound alternative instruction.
And, finally, assuming the question were an
instruction, it must be viewed in the context of the entire
jury charge. See Boylan, 898 F.2d at 244; see also Cupp v.
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Naughten, 414 U.S. 141, 146-47 (1973) ("a single instruction
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to a jury may not be judged in artificial isolation").
Here, in his pre-deliberations charge, the judge at least
ten times explicitly and directly instructed the jury that
the government bore the burden of proof.3 Moreover, the
judge himself placed his previous questioning of the jury in
context when he stated:
Except for my instructions to you on the
law, you should disregard anything I may
have said during the trial in arriving
at your own findings as to the facts.
Any slight ambiguity created by the mid-trial reference to
an "open mind," then, is adequately dispelled once the
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3To provide just two examples, the judge stated:
Indeed the defendants are presumed
by law to be innocent. The law does not
require the defendant to prove his
innocence or produce any evidence at all
and no inference whatsoever may be drawn
from the election of a defendant not to
testify.
The government, that is the
prosecution[,] has the burden of
providing or proving the[ defendants]
guilty beyond a reasonable doubt and if
he fails to do so, you must acquit them.
Later, the judge repeated that "it is up to the government
to prove the[ defendants] guilty beyond a reasonable doubt."
Elsewhere in the charge the judge continually instructed the
jury that the government bore the burden of proof beyond a
reasonable doubt with regard to each element of each
offense.
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"instruction" is viewed in the context of these other, ample
instructions.4
We find further support for our conclusion in a
fifth factor -- circuit precedent. See United States v.
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Nickens, 955 F.2d 112, 118-19 (1st Cir. 1992). In Nickens
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the district judge, in his opening charge to the jury and in
___
remarks made to the jury after closing arguments, actually
issued an "open mind" instruction very similar to the mid-
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trial question asked here. In finding that the instruction
was not plain error, we held that it "merely told the jury
not to evaluate the evidence it would be hearing until the
evidence was all in and the court had rendered its
instructions." Id. at 118. We further noted that:
___
Telling a jury to postpone making a
final judgment until all the evidence
has been presented, does not instruct
the jury as to the weight or effect that
should be given to any aspect of that
evidence -- nor to the presumption of
innocence -- when making their final
judgment.
Id. at 119. Given this precedent, and given the four case-
___
specific factors we have identified, we find that the
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4We note, however, that this entire situation could easily
have been avoided had the judge instructed the jurors, at
the time this issue arose, that the burden of proving the
defendants' guilt always rests with the government.
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remarks made by the district judge did not impermissibly
shift the burden of proof.5
Affirmed.
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5The judge below also made a mid-trial "open mind" statement
which is more easily construed as an "instruction." As the
dissent acknowledges, however, no one challenged this
statement at any stage. If we were to review it, then, it
would be under a plain error rubric and Nickens would
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directly control.
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STAHL, Circuit Judge, (Dissenting). With respect,
STAHL, Circuit Judge, (Dissenting).
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I dissent from the majority opinion because I believe that
the district court's response to the juror misconduct
allegations in this case obliges us to grant defendants a new
trial. With regard to this issue, the majority rests its
affirmance on the well-established rule that district courts
have discretion "to fashion an appropriate and responsible
procedure to determine whether [juror] misconduct actually
occurred and whether it was prejudicial." Ante, at 15
____
(citing Boylan, 898 F.2d at 258). While I agree that a
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district court has broad discretion to determine the nature
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of its inquiry into allegations of juror misconduct, I do not
think that that discretion is so broad as to permit a court
to commit errors of constitutional dimension while performing
that inquiry.
Here, the district court, in its effort to assess
whether juror misconduct had occurred, selected a method of
inquiry which had the effect, in my opinion, of shifting the
burden of proof from the government to the defendants.
Moreover, the court's failure properly to instruct the jurors
of the government's burden of proof compounded the error. As
a result, I am of the opinion that the motions for mistrial
should have been granted. For these reasons, I would
reverse.
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This case, in my view, cannot properly be resolved
without a detailed summary of the events surrounding the
court's response to the juror misconduct allegations. I
begin therefore with a recitation of these facts.
When the question of possible juror misconduct
arose, the district judge immediately and correctly commenced
an interrogation of a young woman, the daughter of Juror
Gonzales, who had been seen conversing with a defendant's
girlfriend. During the inquiry, it became apparent to the
court that the daughter and the defendant's girlfriend had
discussed that defendant's innocence. It also became clear
that the daughter had discussed many aspects of the case with
her mother, Juror Gonzales. As a result, the court then
interrogated Ms. Gonzales.
Juror Gonzales admitted that she had engaged in
discussions with her daughter about the case. She denied,
however, having expressed any opinion as to the guilt or
innocence of the defendants, and generally downplayed the
extent and content of the discussions. She also stated that
no juror had indicated an opinion as to the guilt or
innocence of the defendants.
At the conclusion of Juror Gonzales's
interrogation, counsel for defendant Diaz Fernandez and
counsel for defendant Ortiz Cameron moved for a mistrial. In
response, the court first indicated that it did not intend to
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question any of the other jurors. The AUSA requested,
however, that the court reconsider that decision. The court
then indicated that it would take no action on the mistrial
motions that evening but would decide what to do the
following morning. Ortiz Cameron's attorney then, for
unexplained reasons, retracted his motion for mistrial.
The following morning, the court commenced
interrogations of each of the remaining twelve jurors,
beginning with the jury foreman. Counsel took no part in the
formulation of the following four questions:
(1) At this point have you discussed with
the other jurors or with anyone else the
guilt or innocence of the defendants?
(2) Have you discussed with the other
jurors or with anyone the reputation of
the defendants? (3) Have you discussed
with the other jurors or with anyone else
the credibility of the defendants? (4) At
(4) At
this point have you reached a decision
this point have you reached a decision
regarding the guilt or innocence of the
regarding the guilt or innocence of the
defendants?
defendants?
The foreman and eight of the other jurors answered
"no" to all four questions. One of those jurors, Mr. Luis
Carrero Roman, however, answered question three with the
statement: "Well, I can say it is hard for me to say yes or
no because yes, we made comments between us but nothing that
I can say yes or no." Four other jurors (hereinafter
referred to collectively as "the four jurors") while
answering "no" to the first three questions, answered "yes"
to the critical fourth question.
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At this juncture, the Court individually recalled
the four jurors. The court then asked the four jurors one
question, a question which, in my opinion, was seriously
leading. Before asking the question, the court made the
following statement:
As I instructed you before, the guilt or
innocence of the defendants is decided
after listening to all the evidence, to
the final summations of the attorneys and
after applying the instructions as to the
law to be given by me.
The court followed this statement with:
And my question is, would you be able to
keep an open mind and in the course of
your deliberations with your fellow
jurors, re-examine your own views and
change your opinion if convinced it is
erroneous?
Each of the four jurors answered this question in the
affirmative. Juror Luis Carrero Roman, who admitted to
having engaged in discussions with other jurors, was not
recalled. At no time did the court allow counsel to speak or
to propose follow-up questions. Indeed, throughout the
__________
inquiry, the court refused to allow defense counsel to utter
so much as a word.
After the inquiry ended, however, the court
entertained objections. Counsel for Diaz Fernandez objected
both to the length of the court's interrogations and the
leading nature of the revised question. He also pointed out
that some jurors had stated that they either had discussions
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with one another or had already made up their minds. Counsel
then renewed his motion for a mistrial, stressing his belief
that no instruction could cure the problem. Counsel for
__
defendant Ortiz Cameron then joined the motion for mistrial,
arguing that the presumption of innocence had been
compromised. Counsel for defendant Ortiz Arrigoitia, while
objecting to the court's juror questions, nonetheless did not
join the motion for mistrial.
At that point, the AUSA also expressed concern with
the court's inquiry:
[O]ne thing concerns me, and it is a
point brought up by [defense counsel]
concerning the instructions that have
been given by the Court to the petit jury
to the effect that they should keep an
open mind at all times until the end.
And apparently these four jurors, at
least, have not kept an open mind until
the end of the proceedings.
As a result of these concerns, the AUSA urged the court to
enter specific findings as to the "demeanor" of the four
jurors:
. . . I would ask that the court make[]
findings to the effect that [the four
jurors] appear[ed] to be quite sincere .
. . . The bottom line is, Your Honor,
this is a due process issue, whether
these defendants are being afforded due
process by these jurors, and to that
effect, I believe the Court would have to
enter a finding that yes, they can, they
are willing and able to keep an open mind
and to reach a decision at the end of the
case based upon the evidence and the
instructions given by the court. I would
think it is a close shot, but I think
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there is sufficient information received
by the Court through the questioning to
make a decision.
Immediately thereafter, the court entered the
following statement for the record:
All right. This is a matter of deciding
whether these jurors, especially the four
jurors that we have questioned, are
sincere and will be willing to give these
defendants all due process. And I
believe[,] and I so find[,] that these
jurors are sincere and in the same way
they expressed an opinion that they have
reached a decision as of now, they also
sincerely are able to keep an open mind
and re-examine their own views . . . . I
was impressed by the sincerity of the
answers and the expressions in the face
of each juror when I asked the second
part of the last question . . . .
The court then denied the pending motions for mistrial.
Subsequently, counsel for defendant Pedro Rivera joined the
motions for mistrial.
The court then decided to excuse Juror Gonzales,
whose discussions with her daughter had inspired the entire
inquiry, a decision approved by all counsel. When the jury
reconvened, the court instructed it as follows:
So, I again repeat my instructions to
you, not to form or express an opinion
regarding the guilt or innocence of the
defendant, to keep an open mind. Don't
discuss the case among yourselves or with
anyone else. Keep an open mind.
No one objected to this instruction.
The court's final instructions to the jury
contained the following:
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The indictment or formal charge against
the defendant is not evidence of guilt.
Indeed the defendants are presumed by law
to be innocent. The law does not require
the defendant to prove his innocence or
produce any evidence at all and no
inference whatsoever may be drawn from
the election of the defendant not to
testify.
Under the law a defendant may or may not
testify as he elects since it is up to
the government to prove them guilty
beyond a reasonable doubt as I said
before. The law does not require the
defendant to take the witness stand and
testify and no presumption of guilt may
be raised and no inference of any kind
may be drawn from defendant's failure to
testify.
In addition, the court gave several other
"reasonable doubt" instructions in connection with various
aspects of the case. At no time, however, did it
unequivocally instruct that the burden of proof was always on
_____________
the government.6
____________________
6. In its initial charge to the jury, the court instructed
on the government's burden as follows:
The indictment or formal charge against
the defendant is not evidence of guilt.
Indeed the defendants are presumed by
law to be innocent. The law does not
require the defendant to prove his
innocence or produce any evidence at all
and no inference whatsoever may be drawn
from the election of a defendant not to
testify.
The government, that is the prosecution
has the burden of providing or proving
them guilty beyond a reasonable doubt and
if he (sic) fails to do so, you must
acquit them. Thus, while the government's
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The majority concludes that the district court
reached a reasonable conclusion about the impartiality of the
jurors and that defendants Ortiz Cameron and Medina Vazquez:
present no compelling evidence to the
contrary and we find nothing in the
record that leads us to believe that the
district court's investigation was
inadequate or his findings clearly
erroneous.
Ante, at 16. Respectfully, my review of that same record
____
leads me to the opposite conclusion.
When faced with four jurors who admitted that they
had formed an opinion about the guilt or innocence of the
defendants, the district court brought these four jurors into
chambers again and, in my view, structured the "open mind"
question in such a way that "yes" was the only acceptable
____
response. Before asking the question, the court effectively
admonished the four jurors, reminding them of its instruction
at the beginning of the trial to determine guilt or innocence
only after hearing all of the evidence. One does not need a
degree in psychology to understand the effect that this
statement had on the four jurors' ability to answer this
critical "question" in a calm and uninhibited manner.
At pages 17-19 of the majority opinion, my brethren
offer five reasons why this question did not, in their
____________________
burden of proof is a strict or heavy
burden, it is not necessary that the
defendant's guilt be proved beyond all
doubt.
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estimation, shift the burden of proof. I do not think that
any one of these five points sufficiently answers the
problem. With the first four points, I am afraid that my
colleagues have ceded analysis to semantics, and have exalted
form over substance. I cannot join in such an approach,
particularly where, as here, the fundamental right to a fair
trial is at stake.
As to the majority's fifth point - i.e., its
____
reliance upon Nickens, 955 F.2d at 118-19, for the
_______
proposition that the judge's "open mind" instruction cured
any such shifting of the burden of proof - I am baffled. In
Nickens, we upheld almost identical "open mind" instructions
_______
only after acknowledging that they were problematic. See id.
___ ___
at 118 (affirming instructions "[w]ithout endorsing their
form"). We were analyzing those instructions to determine
whether they alone had the effect of negating the presumption
_____
of innocence. We reasoned that those instructions "would
[not] normally suggest to the jury that the government's
________
burden of proving guilt is equal to defendant's burden of
proving innocence." Id. (emphasis supplied). Finding
___
nothing extraordinary in that case, we concluded that the
instructions were not "so egregious as to constitute plain
error." Id.
___
Here, however, we are not reviewing this "open
mind" instruction to determine whether it alone had the
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effect of negating the presumption of innocence. Rather, we
must determine whether this otherwise problematic instruction
cured the multi-layered burden of proof problems presented by
_____
this case. I think it obvious that this instruction cannot
and should not be viewed as curative.7 As such, my
colleagues' reference to Nickens as controlling "circuit
_______
precedent" is entirely unpersuasive.
In sum, it is my strong opinion that when he
reconvened the jury, the trial judge had an obligation to
cure any potential misperceptions his colloquy may have left
___
in the minds of the four jurors on the fundamental question
of who bears the burden of proof. Waiting until the very end
of a lengthy trial to instruct the jury properly on this
question does not alleviate the prejudice.8 Under any
any
___
standard of review, I think these convictions should be
reversed and that defendants should be granted a new and fair
____________________
7. Moreover, I do not think that the court's error should
escape review merely because it entered into the record
specific findings about the "demeanor" and visible
"sincerity" of each of the juror's answers to the question.
8. To bolster its affirmance, the majority refers to the
numerous occasions on which the district court, before the
juror misconduct allegations surfaced, instructed the jury on
the burden of proof. Those instructions are, however,
utterly irrelevant in determining whether the district court,
later in the trial, made statements or gave instructions that
may have negated the presumption of innocence.
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trial.9 Any other result denies these defendants a "`basic
protection'" afforded by the Constitution, a protection which
reflects "`a profound judgment about the way in which law
should be enforced and justice administered.'" Sullivan v.
________
____________________
9. I further note that the majority opinion does not
adequately address the district court's failure to inquire
into Juror Luis Carrero Roman's admission that members of the
jury had, in fact, conversed about the case. As we made
clear in United States v. Richman, 600 F.2d 286, 295 (1st
______________ _______
Cir. 1979), a trial court should conduct the following four-
part inquiry when faced with allegations that jurors may have
acted improperly:
[1] ascertain whether the misconduct
actually occurred; [2] if it did,
determine whether it was prejudicial; [3]
if not clearly unprejudicial, grant a new
trial; [and] [4] specify reasons if the
court determines either that the
misconduct did not take place or was not
clearly prejudicial.
Id. (citing United States v. Doe, 513 F.2d 709, 711-12 (1st
___ _____________ ___
Cir. 1975)). Here, after learning from Juror Carrero that
members of the jury had discussed the case, the district
court failed to inquire further and refused to allow defense
counsel to interject follow-up questions. As a result, the
record contains no evidence about what types of discussions
__
Juror Carrero may have had with other jurors, or may have
overheard. We are left to speculate. In light of all the
circumstances, I consider this error an alternative grounds
for reversal.
Furthermore, I cannot agree with the majority's cavalier
conclusion that "the judge essentially conducted a full-
fledged inquiry when he asked the other jurors questions
which would have revealed precisely the impropriety which
Judge Stahl fears." Ante, at 16 n.2. First the record
____
contains no such "full-fledged inquiry"; and, second, any
inquiry of "the other jurors" could not possibly have
revealed anything about what Juror Carrero did or did not
know about the putative juror misconduct. It appears,
therefore, that the once strict requirements of Richman have
_______
been relaxed to such an extent that a district court now has
discretion, according to the majority, to conduct essentially
no inquiry at all.
__
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Louisiana, No. 92-5129, 1993 WL 179275, at *4 (U.S. June 1,
_________
1993) (quoting Duncan v, Louisiana, 391 U.S. 145, 155
______ _________
(1968)). I therefore dissent.
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