IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-41147
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS SNELL,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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August 19, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Jose Luis Snell solicited a bribe to deliver a “not guilty”
verdict from the jury on which he served. He was then prosecuted
and stands convicted by his guilty plea. He appeals only his
sentence. He argues that the district court erroneously applied a
sentencing enhancement for bribery of a “government official” in a
“high-level decision-making or sensitive position” under U.S.S.G.
§ 2C1.1(b)(2)(B). Because we agree that a juror falls within this
provision, we affirm.
I
Snell served as a juror in the trial of United States v.
Alejandro Gudino-Vara & Ruben Anselmo Zea-Luna, CR No. M-96-198, in
federal district court in the Southern District of Texas. The
defendants in that case were accused of conspiracy to possess
approximately 113 kilograms of marijuana with the intent to
distribute it.
During the trial, Snell approached members of the defendants’
families, suggesting that they contact him. When they did not do
so, he approached again, telling Gudino-Vara’s wife that he could
“make the others also be in favor; there are 5 or 6 of us.” He met
with three family members that evening in Reynosa, Mexico, to
discuss a payment in exchange for delivering a “not guilty”
verdict. He requested $18,000 for his efforts, but agreed to
accept $10,000 up front and $8,000 upon delivery of the favorable
verdict. He received the $10,000 later that night.
Snell persuaded the other jurors to select him as foreman.
Despite Snell’s efforts, the other jurors favored a guilty verdict
almost immediately. He nevertheless held out for a “not guilty”
verdict, protracting the jury deliberations. Snell finally gave up
when other jury members asked him whether “he had been paid off or
2
if someone had gotten to him.”1 The jury delivered a verdict of
guilty for both defendants.
Shortly after the trial, the family members contacted Snell.
It should not have surprised Snell that they wanted their money
back. Snell, however, returned only $3,000, while claiming that he
had spent the rest to bribe other jury members. This would not do.
So, the family members went to the Federal Bureau of Investigation.
Ultimately, they agreed to cooperate with the government in
exchange for immunity. In a series of taped conversations, Snell
described the previous events. Furthermore, and apparently trying
to redeem his failure to deliver a not guilty verdict, he discussed
the possibility of bribing the judge or probation officer to
achieve lesser sentences for the defendants. With this evidence in
the hands of the prosecutors, Snell was indicted for bribery under
18 U.S.C. § 201(b)(2)(A). He later pleaded guilty and was duly
sentenced. He appeals his sentence.
II
The district court determined Snell’s sentence by applying
U.S.S.G. § 2C1.1, which deals with bribery of a person, such as a
public official, for a corrupt purpose. The court began with the
required base offense level of ten, see § 2C1.1(a), and added two
1
One of the jurors also informed law enforcement officers that
Snell had been observed approaching the defendants’ family members
during the trial.
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levels because the offense involved more than one bribe, see
§ 2C1.1(b)(1). The court then added eight levels because the
offense involved a “payment for the purpose of influencing an
elected official or any official holding a high-level decision-
making or sensitive position . . . .” § 2C1.1(b)(2)(B). Snell
challenges this last enhancement.
A
In reviewing sentences under the sentencing guidelines, we
examine a district court’s factual findings only for clear error
and afford great deference to the court’s application of the
guidelines to those facts. United States v. Tomblin, 46 F.3d 1369,
1391 (5th Cir. 1995). Factual questions, such as the discretion,
supervisory authority, and other indicia of responsibility of an
official, are not at issue in this case, however. The question
whether a juror is an official holding a high-level decision-making
or sensitive position, because it depends primarily upon
interpretation of the sentencing guidelines, is a question of law
that we review de novo. See United States v. Stephenson, 895 F.2d
867, 877 (2d Cir. 1990) (examining whether an “Export Licensing
Officer” in the U.S. Department of Commerce held a “sensitive”
position within the meaning of § 2C1.1(b)(2)(B)); see also United
States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997), cert.
denied, 118 S.Ct. 1546 (1998).
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B
(1)
Whether a juror is an “official holding a high-level decision-
making or sensitive position” under section 2C1.1(b)(2)(B) of the
Sentencing Guidelines is informed by the Application Notes. The
note to section 2C1.1(b)(2)(B) lists, as examples of officials
within its scope, “prosecuting attorneys, judges, agency
administrators, supervisory law enforcement officers, and other
governmental officials with similar levels of responsibility.”
U.S.S.G. § 2C1.1, comment. (n.1). There can be no doubt that, as
a juror, Snell was acting as a government “official” for purposes
of section 2C1.1. See 18 U.S.C. § 201(a)(1) (defining “public
official” to include “a juror”). The question, therefore, is
whether a juror holds a position with a level of responsibility
similar to that held by officials listed in the Application Notes.
Snell argues that there are several critical differences in
the level of responsibility between the examples provided in the
Application Notes and a juror. The listed positions all involve
officials with extended terms of service, who exercise a
substantial amount of unilateral discretion and who possess
supervisory powers of other government employees. A juror, Snell
contends, plays no role in implementing governmental policy, has no
power over other government employees, and has a term of service
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limited to a single case. The government, on the other hand,
argues that jurors play a crucial role in our justice system
similar to judges and are, in fact, referred to as “judges” in
pattern jury instructions. Thus, it maintains that the district
court did not err in concluding that jurors are sufficiently
analogous to judges so as to fall within the scope of section
2C1.1(b)(2)(B).
(2)
To determine the applicability of section 2C1.1(b)(2)(B),
courts have focused on several indicia of high-level
responsibility. One major consideration is the possession of
supervisory authority over a significant group of other government
employees. See, e.g., United States v. Gatling, 96 F.3d 1511, 1526
(D.C. Cir. 1996); United States v. Matzkin, 14 F.3d 1014, 1021 (4th
Cir. 1994). Another important mark of high-level responsibility is
the existence of discretion involving final decision-making
authority over matters of public policy or over the expenditure of
substantial sums of money. See, e.g., Tomblin, 46 F.3d at 1391;
Matzkin, 14 F.3d at 1021; United States v. Lazarre, 14 F.3d 580,
582 (11th Cir. 1994); United State v. Gaines, 37 F.3d 1496, 1994 WL
567681, at *2 (4th Cir. 1994) (unpublished). Such discretion,
however, is not always required, and courts have readily found an
eight-level enhancement appropriate under section 2C1.1(b)(2)(B)
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based on the official’s ability to use his position to influence
another in the exercise of such discretion. See, e.g., United
States v. ReBrock, 58 F.3d 961, 970 (4th Cir.), cert. denied, 516
U.S. 970 (1995); Tomblin, 46 F.3d at 1391.
Examining the role of a juror in our criminal justice system,
some of these indicia of high-level responsibility are present.
Although a juror does not alone possess final decision-making
authority over the guilt or innocence of a criminal defendant, he
does maintain the essentially absolute power to force a mistrial--
at least in the federal system, as in this case. His discretion in
this respect is virtually unchecked and, depending on the case, may
result in the squander of substantial amounts of precious time and
money in the form of both judicial and prosecutorial resources.
Moreover, each juror is in a very potent position to influence the
verdict. Being isolated with fellow jurors for the sole purpose of
arriving at a decision as to guilt or innocence, with the
understanding that such deliberations may be continued for
substantial periods of time until a final verdict is reached, the
forceful or stubborn juror may wield remarkable influence. Snell’s
position as jury foreman may have increased his ability to
influence jury deliberations. And apart from being in a position
to persuade other jurors of his views, any single juror may also be
able to exact concessions from the other jurors as to, for example,
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convictions on lesser included offenses or sentences. Cf., e.g.,
Susan Borreson, Raw Deal Under New Rule?, Texas Lawyer, June 22,
1998, at 1, 16 (story of jurors arriving at compromise verdict and
sentence in Texas criminal case).
More profound than any of these considerations, however, is
the tremendous responsibility every juror has with respect to the
criminal justice system as a whole. The critical importance of
neutral, law-respecting juries to our legal system cannot be
gainsaid. “England, from whom the Western World has largely taken
its concepts of individual liberty and of the dignity and worth of
every man, has bequeathed to us safeguards for their preservation,
the most priceless of which is that of trial by jury.” Irvin v.
Dowd, 366 U.S. 717, 721 (1961); see also, e.g., Spaziano v.
Florida, 468 U.S. 447, 481 (1984) (Stevens, J., concurring in part)
(“The authors of our federal and state constitutional guarantees
uniformly recognized the special function of the jury in any
exercise of plenary power over the life and liberty of the
citizen.”). From the Magna Carta, to the Declaration and Bill of
Rights of 1689, to the Declaration of Independence, the importance
of juries has been etched into our Anglo-American heritage. As our
most respected legal commentators have observed:
“[T]he founders of the English law have, with excellent
forecast, contrived that . . . the truth of every
accusation, whether preferred in the shape of indictment,
information, or appeal, should afterwards be confirmed by
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the unanimous suffrage of twelve of his equals and
neighbors, indifferently chosen and superior to all
suspicion.”
Duncan v. Louisiana, 391 U.S. 145, 151-52 (1968) (quoting 4 William
Blackstone, Commentaries on the Laws of England 349 (Cooley ed.
1898)). “In the ultimate analysis, only the jury can strip a man
of his liberty or his life.” Irvin, 366 U.S. at 722.
Because the jury trial is “essential for preventing
miscarriages of justice and for assuring that fair trials are
provided for all defendants,” Duncan, 391 U.S. at 157-58, “it [is]
obviously fundamental to fairness that [the right to] a ‘jury’
means [the right to] an ‘impartial jury,’” id. at 181-82 (Harlan,
J., dissenting). So fundamental is the unbiased jury to our
nation’s criminal justice system that the Framers provided the
absolute right to an “impartial jury” in the Bill of Rights. See
U.S. Const. amend. VI. In sum, it is apparent that the solemn
responsibility of each and every juror to protect the integrity of
our criminal justice system is, in fundamental ways, unsurpassed
among the other offices of public service. Cf. Remmer v. United
States, 347 U.S. 227, 229 (1954) (“The integrity of jury
proceedings must not be jeopardized by unauthorized invasions.”);
Clark v. United States, 289 U.S. 1, 16 (1933) (Cardozo, J.)
(speaking of the “overmastering need, so vital in our polity, of
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preserving trial by jury in its purity against the inroads of
corruption”).
In view of the prominence of juries in our legal system, and
of the extraordinary responsibility of every juror in preserving
that system, we have little difficulty concluding that a juror, in
the role assigned to him, shares a level of responsibility at least
equal to a prosecuting attorney, agency administrator, or
supervisory law enforcement officer, as they perform their
respective roles. Snell’s conduct as a juror in this case fell far
short of the standard expected of those accepting such
responsibility. Although he ultimately failed to convince eleven
other jurors to undermine the integrity of the system, Snell’s
impotence does not exculpate him. The district court’s decision to
assess an eight-level enhancement for such misconduct was not
error.
III
For the foregoing reasons, the district court’s calculation of
Snell’s sentence is
A F F I R M E D.
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