IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40172
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDELMIRO DELAGARZA-VILLARREAL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas, McAllen
_________________________________________________________________
May 8, 1998
Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Edelmiro Delagarza-Villarreal (“Delagarza”) appeals his
convictions for conspiracy to possess with intent to distribute
marijuana and possession with intent to distribute marijuana.
Delagarza argues that the evidence is insufficient to support the
convictions, that he received ineffective assistance of counsel,
and that the trial court erred when it refused to grant his motion
for a mistrial based upon evidence of government misconduct. This
appeal also presents an issue of apparent first impression in this
circuit--the scope of the fugitive disentitlement doctrine in the
light of the Supreme Court’s opinion in Ortega-Rodriguez v. United
States. 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). We
decline to apply the doctrine in this instance to dismiss
Delagarza’s appeal. We instead affirm the conspiracy conviction
and reverse the conviction for possession because of insufficient
evidence that Delagarza aided and abetted any co-conspirator’s
possession of marijuana.
I
This case arises from a reverse-buy sting operation. In March
1994, Delagarza asked Jorge Guajardo-Benavidez (“Guajardo”), an
acquaintance of Delagarza’s for more than ten years, to broker a
marijuana transaction. Delagarza had several prospective
purchasers and Guajardo had connections--one of whom, unbeknownst
to him, was an informant. Guajardo contacted the informant to set
up the transaction and a meeting was arranged between Guajardo, and
the informant, and the Mexican drug supplier, “Juan Fonseca,” who
was in fact an undercover officer.
At the meeting, Guajardo inspected a sample of marijuana--a 4½
pound “brick”--and, based upon the sample, struck a deal for a 500-
pound purchase at $250 per pound with a $40,000- to $60,000-down
payment, with the remainder due in two weeks. Guajardo suggested
that the transaction take place at a “stash house” on Sprague
Street in Edinburg, Texas, a location selected by Delagarza. The
men attempted to do the deal the following day, March 31, 1994, but
Delagarza’s purchasers had suddenly departed. They agreed to try
again later.
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On April 18, 1994, Delagarza met with Guajardo and told him
that his purchasers had returned to town and they could complete
the drug deal. Guajardo and Delagarza agreed to meet later after
Guajardo had contacted the undercover officer. Guajardo and the
officer met at a K-Mart parking lot and agreed on a 500-pound
delivery. Guajardo then returned to the Sprague Street stash
house, where he found Delagarza with Norberto De La Rosa and Felipe
Clemente Munoz--the buyers. All three men joined Delagarza in his
vehicle and proceeded to rendezvous with the undercover officer at
the K-Mart parking lot.
The undercover officer, who carried a hidden wire, recorded
the meeting on audiotape. Guajardo approached the undercover
officer and told him that the money was there. Both men then
returned to Guajardo’s vehicle. The undercover officer asked how
much money they had and De La Rosa answered “Cuarenta” (meaning
$40,000). De La Rosa then asked if the marijuana was “guaranteed”
and Munoz displayed the cash contained in a towel. Delagarza
inquired whether the weed was of good quality, specifically, if the
marijuana was “green.” The officer answered affirmatively that the
drug was “pino” or green.
Upon confirmation that the marijuana was to be delivered to
the Sprague Street stash house, the undercover officer gave the
“bust signal” and arrested all four men--Guajardo, Delagarza, De La
Rosa, and Munoz. The authorities seized exactly $40,000.
II
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Delagarza, Guajardo, De La Rosa, and Munoz were all charged in
a two-count indictment for conspiracy to possess with intent to
distribute and possession with intent to distribute marijuana. The
three co-defendants pled guilty, but Delagarza elected for trial.
The case began on August 9, 1994, and two days later, Delagarza
absconded during a court recess. A warrant was issued for his
arrest, and the trial went forward.
Meanwhile, the prosecutor learned that the case agent had held
a brief, unauthorized conversation with two jurors, discussing his
educational background, job experience, personal on-the-job safety,
and law enforcement corruption. The prosecutor advised the court
of these happenings and the court interviewed the two jurors,
discussed the communications with the entire panel, dismissed the
two conversationalists, and replaced them with two alternates. The
case proceeded against Delagarza in absentia, and the jury returned
a guilty verdict as to the two charges on August 15, 1994. A
sentencing date was set two months later, but Delagarza failed to
show.
Co-defendants De La Rosa and Munoz moved to withdraw their
guilty pleas during Delagarza’s absence in the spring of 1995. A
superseding indictment was handed down against them and a jury
selected for the upcoming trial. Before trial began, however, the
two defendants opted to withdraw their motions to withdraw their
guilty pleas and abide by the terms of their original plea
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agreements. Guajardo, De La Rosa, and Munoz were sentenced on
March 27, 1996. None appealed.
Authorities recaptured Delagarza on April 23, 1996, and
returned him to the custody of the trial court. The court
sentenced him on August 7, 1996, to serve two concurrent 120-month
terms of imprisonment for the drug convictions followed by a
consecutive one-day sentence for his failure to appear conviction.1
Delagarza timely appealed.
III
As an initial matter, we address the government’s request that
we invoke our discretion and employ the fugitive disentitlement
doctrine to dismiss Delagarza’s appeal without reaching the merits.
It is generally accepted that circuit courts have the
authority to fashion procedural rules governing the management of
litigation before them. Ortega-Rodriguez v. United States, 507
U.S. 234, 252, 113 S.Ct. 1199, 1210, 122 L.Ed.2d 581 (Rehnquist,
C.J., dissenting) (1993). Specifically, the Supreme Court
recognized almost thirty years ago that an appeal may be dismissed
if the appellant becomes a fugitive from justice while his appeal
is pending. Molinaro v. New Jersey, 396 U.S. 365, 365-66, 90 S.Ct.
498, 498-99, 24 L.Ed.2d 586 (1970) (coining doctrine of
disentitlement); United States v. DeValle, 894 F.2d 133, 134, 138
(5th Cir. 1990) (“As a general matter, willful flouting of the
1
Delagarza had previously pled guilty to a superseding
indictment for his failure to appear.
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judicial system on the part of one seeking appellate redress should
not go wholly unrecognized.”); United States v. Glomb, 877 F.2d 1,
3 (5th Cir. 1989). Since then, we have incrementally expanded the
rule to allow dismissal when the fugitive is captured before the
motion to dismiss the appeal is ever filed, and, even further, this
circuit has held that the appellate court retains the discretion to
dismiss an appeal when the appellant’s fugitive status commences
before the filing of an appeal. DeValle, 894 F.2d at 136. In
fact, the case law could be read to condone dismissal even though
recapture may occur before the appellate process is invoked. Id.
(noting dismissal may be appropriate “at least as to trial
proceedings completed before the appellant became a fugitive.”).
The Supreme Court, however, curtailed the application of the
fugitive disentitlement doctrine in its 1993 Ortega-Rodriguez
opinion. See 507 U.S. at 249-51, 113 S.Ct. at 1208-10. The facts
then before the Court closely mirror those before us now. The
defendant had fled the jurisdiction of the district court after
conviction, but was apprehended before sentencing and appeal. The
Eleventh Circuit, without addressing the merits of the appellant’s
arguments, dismissed the appeal under the fugitive disentitlement
doctrine. The Supreme Court granted certiorari to determine the
proper reach of the doctrine.
The Court initially acknowledged that “dismissal by an
appellate court after a defendant has fled its jurisdiction serves
an important deterrent function and advances an interest in
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efficient, dignified appellate practice.” Ortega-Rodriguez, 507
U.S. at 242, 113 S.Ct. at 1204-05 (emphasis added). Noting that
the justifications advanced for allowing dismissal all assume that
a sufficient connection exists between the defendant’s fugitive
status and the appellate process so as to make dismissal a
reasonable sanction, the Court turned to examine the basis for that
assumption when a fugitive is recaptured before the appellate
process begins. Id. at 243-45, 113 S.Ct. at 1205-06.
The Court first noted that the risk of unenforceability of an
appellate court’s judgment is nonexistent if the defendant is in
custody when he begins the appellate process. Id. at 244, 113
S.Ct. at 1206. Similarly, the “efficient operation” of the
appellate process generally will not have been interrupted by a
fugitive’s absconding when the fugitive files an appeal after
recapture. Id. at 245, 113 S.Ct. at 1206 (noting that court that
faces “additional trouble” is “the court before which the case is
pending at the time of escape”). Similarly, the fugitive’s flight
from the district court’s jurisdiction affronts the dignity of the
district court--not that of the appellate court--and the trial
court has available to it adequate sanctioning authority to defend
its own dignity. Id. at 245-46, 113 S.Ct. at 1206-07. Because the
trial court “is quite capable of defending its own jurisdiction,”
the district court may fashion an appropriate punishment to deter
escape. Deterrence from escape of the district court’s
jurisdiction thus fails to withstand scrutiny as a justification
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for appellate dismissal when recapture occurs before the appellate
process is invoked. Id. at 247, 113 S.Ct. at 1207.
Thus, the Court concluded that
while dismissal of an appeal pending while the defendant
is a fugitive may serve substantial interests, the same
interests do not support a rule of dismissal for all
appeals filed by former fugitives, returned to custody
before invocation of the appellate system. Absent some
connection between a defendant’s fugitive status and his
appeal, as provided when a defendant is at large during
“the ongoing appellate process,” . . . the justifications
advanced for dismissal of fugitives’ pending appeals
generally will not apply.
Id. at 249, 113 S.Ct. at 1208 (emphasis added).
The Court, however, did not completely disembowel an appellate
court’s authority to apply the disentitlement doctrine when a
defendant’s fugitive status predates the appeal. Id., 113 S.Ct. at
1208. For instance, if a long escape would so prejudice the
government at retrial after a fugitive’s successful appeal,
employment of the doctrine may be appropriate.2 Id., 113 S.Ct. at
1208. Similarly, a defendant’s flight that prevents the appellate
court from consolidating his appeal with that of his co-defendants
could justify application of the dismissal rule, if the appellate
court were to determine that the inability to consolidate worked a
“significant interference with the operation of its appellate
2
The Court specifically noted, however, that an appeal
successfully premised on insufficiency of the evidence would fall
outside that class of cases. Irrespective of the prejudice to the
government, a defendant may not be retried if he wins under that
argument. 507 U.S. at 249, 113 S.Ct. at 1208. Delagarza presents
arguments premised on insufficiency of the evidence, but also on
ineffective assistance of counsel and failure to grant a mistrial.
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process.” Id. at 250, 113 S.Ct. at 1209. Finally, the Court
declined to require a case-specific analysis, but provided that
appellate courts may fashion generally applicable rules to apply to
specific, recurring situations. Furthermore, the circuits need not
operate in uniformity in their promulgation of fugitive dismissal
rules. Id. at 250-51 nn.23 & 24, 113 S.Ct. at 1209 nn.23 & 24.
This appeal presents this Circuit’s first opportunity to offer
our interpretation of Ortega-Rodriguez. The government maintains
that it will be unduly prejudiced should Delagarza succeed in his
appeal and this action be remanded for a new trial. The audio
taped conversations of Delagarza and his co-defendants along with
the “brick” of marijuana have since been destroyed, and the $40,000
has been forfeited to state authorities. The government also
contends that it already has been unduly prejudiced by Delagarza’s
fleeing because the co-defendants, who had initially pled guilty,
attempted to withdraw their pleas when Delagarza fled.
Notwithstanding the government’s arguments, however, we must
conclude that the alleged prejudice to the government will not
suffice to support dismissal of Delagarza’s appeal. First, the
government failed sufficiently to demonstrate that the “brick” of
marijuana would not have been destroyed nor the $40,000 forfeited
to the state absent Delagarza’s fugitive status. Second, should
Delagarza succeed on his insufficiency of the evidence arguments,
this action will not be remanded for a new trial. The Supreme
Court laid down a specific rule that prejudice to the government at
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retrial may not be utilized as a factor favoring dismissal of the
appeal when the fugitive defendant’s argument concerns sufficiency
of the evidence, simply because success on an insufficiency of
evidence argument would not result in retrial.3
Additionally, the government made no attempt to tie the
co-defendants’ decisions to withdraw their guilty pleas to
Delagarza’s absence. There is no evidence before this court that
De La Rosa and Munoz attempted to withdraw their guilty pleas
because of Delagarza’s fugitive status. We do not mean to place a
significantly heavy burden on the prosecution to demonstrate
prejudice before application of the disentitlement doctrine may be
imposed. We simply hold that, whatever the burden may be, the
government did not meet it in this instance.
The government also suggests that the long delay of the
instant appeal, occasioned by Delagarza’s fugitive status,
unnecessarily burdened this court’s appellate process. We cannot
say, however, that the delay in this case significantly interfered
with our judicial process. See Ortega-Rodriguez, 507 U.S. at 250,
113 S.Ct. at 1209. Again, it is important to note what we are not
holding: We are not holding that delay occasioned by a defendant’s
fleeing may never work a significant interference with our court
system so as to justify dismissal. We are holding only that the
delay in this case fails to meet that standard.
3
See supra note 2.
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Finally, the government maintains that dismissal is proper
because Delagarza’s fugitive status created the potential for
separate appeals. Although the three co-defendants who pled guilty
did not appeal, the government argues that they could have done so
and this court could not have consolidated all of the defendants’
appeals because of Delagarza’s absence. For instance, the
government maintains that the three co-defendants’ appeals could
have been consolidated had they appealed, but, in such a situation,
Delagarza, because of his fugitive status, would have been afforded
his own separate appeal absent application of the disentitlement
doctrine. Thus, the government suggests that we develop a general
rule allowing dismissal of any fugitive defendant’s appeal when
that defendant has been tried and convicted with one or more co-
defendants who could have appealed from their own convictions or
sentences.
It is true that the Supreme Court specifically noted that a
defendant’s flight that worked a significant interference with the
appellate process by preventing the appellate court from
consolidating his appeal with those of his co-defendants could
justify application of the dismissal rule. In this case, however
Delagarza’s co-defendants did not appeal and we are unable to hold
that affording Delagarza an appeal works a “significant
interference” with our normal appellate practice. We are thus
constrained to hold that the mere potential interference with our
consolidation process presented here does not meet the requisite
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test for demonstrating “some connection between [the] defendant’s
fugitive status and his appeal.” The prosecution’s motion to
dismiss shall be denied.
IV
A
Turning to the merits of the appeal, Delagarza initially
argues that the evidence is insufficient to support his conviction
for conspiracy to knowingly and intentionally possess with intent
to distribute a controlled substance. He contends that there is no
evidence that he made any arrangements to purchase the marijuana
and that the uncorroborated testimony of an alleged co-conspirator
does not prove his guilt beyond a reasonable doubt. The government
maintains, however, that all of the evidence, including Guajardo’s
testimony, sufficiently supports the conviction.
(1)
When evaluating an insufficiency claim, we view the evidence
and all reasonable inferences to be drawn therefrom in the light
most favorable to the government to determine whether a rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.4 United States v. Greer, 137
4
We employ this standard of review because Delagarza preserved
his insufficient evidence claim by moving for a judgment of
acquittal at trial. United States v. Sneed, 63 F.3d 381, 385, n.2
(5th Cir. 1995), cert. denied, 516 U.S. 1048, 116 S.Ct. 712, 133
L.Ed.2d 667 (1996); see United States v. Galvan, 949 F.2d 777, 782-
83 (5th Cir. 1991) (reviewing for “manifest miscarriage of justice”
because defendant failed to move for directed verdict or judgment
of acquittal).
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F.3d 247, 249 (5th Cir. 1998) (citing United States v. Bell, 678
F.2d 547, 549 (5th Cir. 1982) (en banc), aff’d, 462 U.S. 356, 103
S.Ct. 2398, 76 L.Ed.2d 638 (1983)); United States v. Burton, 126
F.3d 666, 669-70 (5th Cir. 1997). “‘The evidence need not exclude
every reasonable hypothesis of innocence or be wholly inconsistent
with every conclusion except that of guilt, and the jury is free to
choose among reasonable constructions of the evidence.’” Burton,
126 F.3d at 669-70 (quoting United States v. Bermea, 30 F.3d 1539,
1551 (5th Cir. 1994)). Our review does not change irrespective of
whether the evidence is direct or circumstantial. Burton, 126 F.3d
at 670. What we may not do is reweigh the evidence or assess the
credibility of the witnesses, but instead we must “‘accept all
credibility choices that tend to support the jury’s verdict.’”
Sneed, 63 F.3d at 385 (quoting United States v. Anderson, 933 F.2d
1261, 1274 (5th Cir. 1991)); United States v. Lopez, 74 F.3d 575,
577 (5th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 1867, 134
L.Ed.2d 964 (1996).
(2)
To prove a drug conspiracy in violation of 21 U.S.C. §§ 841
and 846, the government must present evidence demonstrating beyond
a reasonable doubt (1) the existence of an agreement between two or
more persons to violate the narcotics laws, (2) that the defendant
knew of the agreement, and (3) that he voluntarily participated in
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the agreement.5 United States v. Maltos, 985 F.2d 743, 746 (5th
Cir. 1992) (citing United States v. Gallo, 927 F.2d 815, 820 (5th
Cir. 1991)). The government is not required to make its case
through direct evidence, but “[t]he agreement, a defendant’s guilty
knowledge and a defendant’s participation in the conspiracy all may
be inferred from the ‘development and collocation of
circumstances.’” Maltos, 985 F.2d at 746 (quoting United States v.
Lentz, 823 F.2d 867, 868 (5th Cir.) (quoting United States v.
Vergara, 687 F.2d 57, 61 (5th Cir. 1982)), cert. denied, 484 U.S.
957, 108 S.Ct. 354, 98 L.Ed.2d 380 (1987)).
The defendant’s mere presence at the crime scene is alone
insufficient to support a reasonable inference that he is a
participant in the conspiracy. United States v. Chavez, 947 F.2d
742, 745 (5th Cir. 1991). Presence and association, along with
other evidence, however, are factors that may be considered by the
jury in finding conspiratorial participation. Id.
The record contains ample evidence supporting the jury’s
finding beyond a reasonable doubt that Delagarza knew about and
voluntarily participated in a drug conspiracy. Guajardo testified
that he sought to buy marijuana from the informant at Delagarza’s
5
Delagarza argues that the government failed to prove an overt
act in furtherance of the conspiracy. No proof of an overt act is
required in order to obtain a conviction for conspiracy to possess
a controlled substance with the intent to distribute it. United
States v. Bermea, 30 F.3d 1539, 1551-52 (5th Cir. 1994), cert.
denied, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995);
United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989).
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request and that a connection existed between Delagarza and the
stash house on Sprague Street. Delagarza actively participated in
discussions with the undercover officer before the drug deal was
consummated and he was present when the participants decided to
make the drugs-for-money exchange at the Sprague Street residence.
We find unpersuasive Delagarza’s sufficiency argument with respect
to his conviction for conspiracy.
B
Delagarza argues more persuasively that the evidence is
insufficient to support his conviction for possession with intent
to distribute marijuana, the substantive count of which he was
convicted. To obtain a conviction for possession with intent to
distribute, the government must prove that the defendant: (1)
knowingly (2) possessed a controlled substance (3) with intent to
distribute it. United States v. Gonzales, 121 F.3d 928, 936 (5th
Cir. 1997); Lopez, 74 F.3d at 577 (citing United States v. Diaz-
Carreon, 915 F.2d 951, 953 (5th Cir. 1990)). The government
proceeded against Delagarza under an aiding and abetting theory--
that is, that he aided and abetted Guajardo in possessing marijuana
with the intent to distribute it.
A defendant may be convicted of aiding and abetting a
substantive criminal offense “when he associates with the criminal
activity, participates in it, and acts to help it succeed.”
Gonzales, 121 F.3d at 936. “A conviction for aiding and abetting
the possession of a controlled substance with intent to distribute
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does not require that [the defendant] have actual or constructive
possession of the drug. It only requires that [he] associate
himself with the venture, and participate in a way calculated to
bring about that venture’s success.” United States v. Pena, 949
F.2d 751, 755-56 (5th Cir. 1991). Here, Delagarza must have aided
and abetted “both the possession of the drug and the intent to
distribute it.” United States v. Williams, 985 F.2d 749, 753 (5th
Cir. 1993). We may uphold the conviction even if Delagarza never
had actual or constructive possession of the marijuana. Gonzales,
121 F.3d at 936; Williams, 985 F.2d at 753. While Delagarza
himself need not have actually or constructively possessed the
marijuana in order to sustain his conviction, at least one of his
co-defendants must have had such possession. United States v.
Lindell, 881 F.2d 1313, 1322-23 (5th Cir. 1989) (noting defendant’s
actions “facilitated the possession by others of marihuana with the
intent to distribute.”).
The government contends that co-defendant Guajardo’s
“possession” of the sample 4½ pound brick of marijuana when he
inspected it for its quality, along with evidence of Delagarza’s
active participation and presence at the drug negotiations,
suffices to support Delagarza’s conviction. Although the evidence
easily supports a reasonable juror’s finding that Delagarza aided
and abetted an intention or plan to distribute marijuana once it
was possessed, the evidence will not support a finding that he
aided and abetted the possession of marijuana. The simple fact is
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that Guajardo never possessed the 4½ pound sample. Based on the
evidence in the record before us, no rational trier of fact could
have so found. The only evidence in the record is that the
undercover agent “handed Guajardo a sample of marihuana . . . for
his inspection” during the negotiations. Guajardo’s mere
inspection in this instance does not constitute possession,
especially when Guajardo did not purchase the brick and returned it
to the undercover agent. Inasmuch as the record will not support
possession by Guajardo, Delagarza did not aid and abet the
possession of the marijuana brick and his aiding and abetting
conviction must thus be overturned.
C
As his third point of error, Delagarza argues that he received
ineffective assistance of counsel at trial in violation of the
Sixth Amendment. Delagarza raises this issue for the first time on
appeal. As a general rule of practice, we will not address on
direct appeal ineffective assistance claims not presented to the
district court. United States v. Chavez-Valencia, 116 F.3d 127,
133-34 (5th Cir. 1997); United States v. Gaytan, 74 F.3d 545, 557
(5th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 77, 136 L.Ed.2d
36 (1996); United States v. Packer, 70 F.3d 357, 361 (5th Cir.
1995) (quoting United States v. Navejar, 963 F.2d 732, 735 (5th
Cir. 1992)), cert. denied, ___ U.S. ___, 117 S.Ct. 75, 136 L.Ed.2d
34 (1996); United States v. Fry, 51 F.3d 543, 545 (5th Cir. 1995).
We grant an exception to this rule “only in rare cases where the
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record allow[s] us to fairly evaluate the merits of the claim.”
Navejar, 963 F.2d at 735.
Delagarza maintains that his trial attorney failed to object
to numerous hearsay statements and to the admission into evidence
of several extraneous offenses of his co-conspirators. The
district court held no hearing on the matter to develop the facts
and the record does not provide sufficient detail about the
attorney’s conduct to allow us to make a fair evaluation of the
merits of Delagarza’s claim. We thus deny Delagarza’s appeal on
this ground without prejudice to his ability to raise it
collaterally in a habeas corpus proceeding.
D
In his final point of error, Delagarza maintains that his
Fourteenth Amendment rights were violated “by the intentional acts
of government agents.” While the trial was ongoing, two sitting
jurors approached the case agent and engaged in a five- to
fifteen-minute conversation with him. Their inquiries did not
concern the specifics of the trial, but instead indicated their
curiosity with certain aspects of the agent’s occupation.
Delagarza’s trial counsel requested a mistrial, but the district
judge denied the motion, dismissed the two jurors from the panel,
and replaced them with two alternates. Although trial counsel
indicated his satisfaction with the remaining jurors’ retention on
the panel and did not renew the motion for mistrial, Delagarza now
argues that the officer’s conduct was so outrageous that it
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violated his right to a fair trial and we should thus dismiss the
charges against him.6
In a criminal case, 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. . . . The presumption is not conclusive,
but the burden rests heavily upon the Government to
establish, after notice to and hearing of the defendant,
that such contact with the juror was harmless to the
defendant.
Denman, 100 F.3d at 405 (quoting Remmer v. United States, 347 U.S.
227, 229, 74 S.Ct. 450, 451, 98 L.Ed.2d 654 (1954)). The trial
court must conduct a hearing after receiving notice of such
communication to determine the underlying circumstances, the impact
6
The government maintains that Delagarza has not appealed the
denial of his motion for mistrial and, thus, that he has waived
that issue. United States v. Denman, 100 F.3d 399, 405 (5th Cir.
1996) (“We review for abuse of discretion a trial judge’s denial of
a motion for mistrial based on allegations of improper
extrajudicial conduct by jurors.”); United States v. Almeida-Biffi,
825 F.2d 830, 833 (5th Cir. 1987), cert. denied, 485 U.S. 1010, 108
S.Ct. 1478, 99 L.Ed.2d 706 (1988). Applewhite v. Reichhold
Chemicals, Inc., 67 F.3d 571, 573 (5th Cir. 1995) (noting failure
to brief and argue issue constitutes waiver). Because Delagarza
did not raise this argument with the district court, according to
the government, we review for plain error. United States v.
Wilson, 116 F.3d 1066, 1085 (5th Cir. 1997); Fed.R.Crim.P. 52(b).
Plain error is “‘error so obvious and substantial that failure to
notice it would affect the fairness, integrity, or public
reputation of the judicial proceedings and would result in manifest
injustice.’” United States v. Johnson, 127 F.3d 380, 393 (5th Cir.
1997) (quoting United States v. Reyes, 102 F.3d 1361, 1364 (5th
Cir. 1996)). In his brief, however, Delagarza lists as his fourth
issue that “[t]he trial court erred in not granting a motion for
mistrial upon receiving evidence that one of the Government’s
witness [sic] had conversed with jury members outside of the
courtroom . . . .” As is evident from our discussion, however,
Delagarza’s appeal on this ground is meritless irrespective of the
standard of review.
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of the contact on the juror, and if prejudice resulted. Id. Our
cases set out a two-pronged inquiry: (1) whether the challenged
interchange was about the matter pending before the jury, and (2)
whether the defendant was prejudiced by the discussion. Id.
The district court conducted an adequate investigation into
the case agent’s conversation with the two jurors. Before
dismissing them, the judge interviewed the two jurors and
determined that the topic of their communication with the agent was
unrelated to the trial and, although certainly improper, resulted
in no prejudice to Delagarza. The court further questioned the
remaining jurors as to whether they had communicated with the
dismissed jurors. None had and the court properly replaced the
dismissed jurors with alternates and allowed the trial to continue.
Whether we review for plain error or abuse of discretion,
Delagarza’s appeal on this issue is without merit and is denied.
V
For the foregoing reasons, we reverse Delagarza’s conviction
for possession with intent to distribute marijuana and affirm his
conviction for conspiracy to possess with intent to distribute
marijuana.
MOTION TO DISMISS DENIED;
AFFIRMED in part; REVERSED in part; and
REMANDED for RESENTENCING.
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