F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 11 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-2068
ELENO AGUIRRE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-92-486-2-JC)
Charles L. Barth, Assistant United States Attorney (John J. Kelley, United States
Attorney, Laura Fashing, Special Assistant United States Attorney, with him on
the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
Brenda G. Grantland, Mill Valley, California, for Defendant-Appellant.
Before BALDOCK and BRORBY, Circuit Judges, and DANIEL, * District Judge.
BRORBY, Circuit Judge.
*
The Honorable Wiley Y. Daniel, United States District Judge for the
District of Colorado, sitting by designation.
A New Mexico federal jury convicted Eleno Aguirre on four counts in a
multi-defendant, multi-count indictment, and the United States District Court for
the District of New Mexico sentenced Mr. Aguirre to a term of 235 months
imprisonment. Mr. Aguirre now appeals his convictions. We exercise
jurisdiction over Mr. Aguirre's appeal pursuant to 28 U.S.C. § 1291 (1994).
I. FACTUAL AND PROCEDURAL BACKGROUND
Gabriel Rodriguez-Aguirre managed a family-run organization ("the
Aguirre organization") specializing in the sale and distribution of large amounts
of marijuana and cocaine. United States v. Denogean, 79 F.3d 1010, 1011 (10th
Cir.), cert. denied, 117 S. Ct. 154 (1996). Between 1984 and 1992, the
organization sold more than 20,000 pounds of marijuana and over 20,000 pounds
of cocaine to narcotics traffickers in New Mexico, Arizona, Utah, Kansas,
Massachusetts, and elsewhere throughout the United States. Id. The organization
used narcotics proceeds to purchase real property and other assets. Id. Defendant
Eleno Aguirre, the brother of Gabriel Rodriguez-Aguirre, was involved in the
Aguirre organization.
On October 20, 1992, a federal grand jury in the District of New Mexico
returned a twenty-three count indictment against Mr. Aguirre and twenty-one
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other defendants, including Mr. Rodriguez-Aguirre. The bill of indictment
charged Mr. Aguirre with conspiracy to distribute more than 1,000 kilograms of
marijuana, in violation of 21 U.S.C. § 841 (1994), and conducting a financial
transaction with illicit proceeds with knowledge the transaction was designed to
avoid federal reporting requirements, in violation of 18 U.S.C.
§§ 1956(a)(1)(B)(ii) and 2 (Supp. 1996). Mr. Aguirre pled not guilty to the
charges against him, and proceeded to trial with his co-defendants in January
1994.
The original trial of Mr. Aguirre and his co-defendants lasted six months,
becoming "the longest federal criminal trial ever held in the District of New
Mexico." United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024 (10th Cir.
1996). After deliberating for more than six weeks, the jury was unable to reach a
verdict on the majority of counts, and the trial judge declared a mistrial. Id.
Neither the United States nor counsel for Mr. Aguirre objected to the mistrial.
In August 1994, the United States obtained a superseding indictment
against Mr. Aguirre and nine of his co-defendants. In addition to the charges
included in the original indictment, the superseding indictment contained
additional charges against Mr. Aguirre. Count II charged Mr. Aguirre with
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conspiracy to possess with the intent to distribute cocaine, and conspiracy to
distribute cocaine. Count XIII charged Mr. Aguirre with receiving income from
the distribution of controlled substances and investing this income in the E & J
Lounge, in violation of 21 U.S.C. § 854 (1994). Count XVII charged Mr. Aguirre
with possession with the intent to distribute more than five kilograms of cocaine.
The United States retried Mr. Aguirre and his co-defendants in November
and December 1994. Prior to trial, the court randomly selected a jury panel of
approximately 250 jurors at random from voter registration lists for the Roswell
Division of the District of New Mexico. The district judge excused the remaining
jurors sua sponte after reviewing the juror questionnaires; the court directed only
115 jurors to report for jury service. Six days prior to the start of trial, defense
counsel were provided copies of the jury questionnaires for the panel that had
been selected for service and learned that the court had excused the remaining
jurors.
On the first day of trial, prior to jury selection, defendant Gabriel
Rodriguez-Aguirre filed a motion to stay the proceedings, and defendant David
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Morales filed a motion to quash the jury venire 1. The motions alleged the jury
venire panel seriously misrepresented the ethnic makeup of the District of New
Mexico. Specifically, the defendants claimed persons of Hispanic origin and
American-Indian background were underrepresented. The defendants sought a
stay of the trial to allow time for an investigation of the ethnic background of all
the jurors. In addition, Mr. Morales' counsel, Paul Kennedy, advised the court
orally of United States v. Calabrese, 942 F.2d 218 (3d Cir. 1991). Mr. Kennedy
argued Calabrese stood for the proposition that reversible error exists once a
court excludes a juror prior to voir dire "simply because a juror knows a
defendant." Mr. Kennedy claimed it appeared the court had excused at least one
juror because the juror stated he or she knew one of the defendants.
Following Mr. Kennedy's comments, the court held an evidentiary hearing
at which Nancy Metzger, jury administrator for the Federal Court Clerk's office,
testified. Ms. Metzger stated the jury panel of approximately 250 jurors had been
selected at random from voter registration lists. Ms. Metzger testified that the
district judge reviewed the juror questionnaires and directed her to excuse more
1
Pursuant to the court's order that "one motion made by one defense
counsel applies to all [defendants]," all of the defendants, including Mr. Aguirre,
adopted the motions of Mr. Rodriguez-Aguirre and Mr. Morales.
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than 100 specific jurors. Ms. Metzger stated she did not know the ethnicity of
either the excused jurors or the jurors who had reported for service.
The court then stated it had reviewed the individual juror questionnaires
and "retained the stack of those who, for some reason or other, claimed that they
couldn't serve." The court explained:
I think it goes without saying that the ones that were not summoned,
I never looked at the last name, whether it was [a] Hispanic surname
or whether it was not a Hispanic surname, or whether they were
American Indians or not. As a matter of fact, I'm not real sure that
that's part of the questionnaire --
Ms. Metzger confirmed the jurors were not directed to list their ethnicity on the
questionnaire forms.
The district court denied the defendants' motion to stay the proceedings and
the defendants' motion to quash the jury venire. However, the court allowed the
defendants to supplement the record within ten days of the completion of the trial
with information concerning the racial composition of the District of New Mexico
and the Roswell Division. None of the defendants chose to supplement the record
with such information.
Following a one month trial, the jury returned a verdict against Mr. Aguirre
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on all four counts the United States charged him with in the superseding
indictment. Thereafter, Ms. Sonia Gallegos, Mr. Aguirre's co-defendant who was
also convicted, filed a motion for a new trial. Mr. Aguirre adopted Ms. Gallegos'
motion for a new trial pursuant to the district court's standing order that "anything
that anybody files the others adopt." Mr. Aguirre argued, inter alia, he was
entitled to a new trial because of jury misconduct. Mr. Aguirre attached an
affidavit from defense investigator Kelly Owens to his motion. Mr. Owens
testified that following the trial, he questioned nine of the twelve jurors who
convicted the defendants. Mr. Owens stated that one of the jurors, Linda Howard,
admitted looking up the dictionary definition of the word "distribution" on the
evening after the first day of deliberations and orally sharing its definition with
the other jurors on the following day. According to Mr. Owens, Ms. Howard
stated the juror's discussed the meaning of "distribution" as it related to the guilt
or innocence of Ms. Gallegos. Mr. Owens also testified juror Ronnie Warmuth
claimed he had knowledge of another juror researching the dictionary definition
of the word "hypothecate." 2 In his post-trial motion, Mr. Aguirre contended this
2
The United States attached affidavits from jurors Ronnie Warmuth and
Kerry Romine to the United States' response to Ms. Gallegos' motion for a new
trial. Mr. Warmuth stated:
On further reflection, I do not believe that a dictionary was used at
all. The only definition which was questioned regarded the word
"pontificate" as used by the witness John Henry Lee. Mr. Kerry
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improper juror conduct prejudiced him and entitled him to a new trial.
The district court denied Mr. Aguirre's motion for a new trial, rejecting the
defendants' claim of jury misconduct. The court concluded the word distribution
was one of common usage, and there was no indication any of the jurors relied
upon its dictionary definition or that it "made any difference at all in the jury
deliberations."
At sentencing, the district court determined Mr. Aguirre had an offense
level of 38, a criminal history category of I, and a sentencing range of 235 to 293
months. The court sentenced Mr. Aguirre to a term of 235 months imprisonment
on Counts II, XII and XVII. As to Count XIII, the district court sentenced Mr.
Aguirre to a term of 120 months, to run concurrently with the 235 month
sentence.
Romine, a fellow juror, knew the definition of this word and no
dictionary was consulted.
Similarly, Mr. Romine testified that although a question arose during
deliberations as to the definition of the word "pontificate," "the jury ... did not at
any time consult a dictionary."
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II. ISSUES RAISED ON APPEAL
Mr. Aguirre raises three issues on appeal: (1) whether the district court's
dismissal of over 100 jurors, off the record, and outside the presence of the
defendants and counsel, violated Mr. Aguirre's constitutional rights and his rights
under the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1878
(1994); (2) whether the district court abused its discretion in failing to grant Mr.
Aguirre a new trial based upon the jury's misconduct in looking up the dictionary
definitions of certain words; and (3) whether the superseding indictment filed
after the mistrial should have been dismissed on grounds of prosecutorial
vindictiveness. 3
III. ANALYSIS
A. Jury Selection and Service Act
Mr. Aguirre first contends the district court's excusal of over half of the
original jury panel, off the record and outside the presence of the defendants and
counsel, violated the Jury Selection and Service Act and his constitutional rights
under the Fifth and Sixth Amendments. 28 U.S.C. § 1867(d) requires all motions
3
In his opening brief, Mr. Aguirre also argued the district court erred in
summarily rejecting Mr. Aguirre's objections to his presentence report without a
hearing and without findings of fact. (Id.) However, Mr. Aguirre withdrew this
argument in a subsequent motion to strike. (Apt's motion to supplement and
strike part III, at 1-2.)
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challenging compliance with the Jury Selection and Service Act to be
accompanied by a "sworn statement of facts which, if true, would constitute a
substantial failure to comply with the [Jury Selection and Service Act]." In the
recent appeal of Mr. Aguirre's co-defendant, Doloras Contreras, we determined
Ms. Contreras' claim under the Jury Selection and Service Act was barred by the
defendants' failure to accompany their motions challenging the district court's jury
selection process with an adequate sworn statement as required by 28 U.S.C.
§ 1867(d). United States v. Contreras, __ F.3d ___ (10th Cir., Mar. 11, 1997).
Here, as in Contreras, Mr. Aguirre failed to file a sworn affidavit in support of
his motions challenging the district court's jury selection procedures.
Consequently, Mr. Aguirre 's Jury Selection and Service Act claim is barred.
Also in Contreras, we denied Ms. Contreras' Fifth and Sixth Amendment
challenges to the jury selection procedures. See id. at ___. Specifically, we
determined Ms. Contreras could not establish a prima facie case of a fair cross
section violation or an equal protection violation, and we concluded Ms.
Contreras' Sixth Amendment impartial jury claim was without merit. Id. For the
reasons stated in Contreras, we likewise find no merit in Mr. Aguirre's
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constitutional challenges to the jury selection procedures. 4
B. Jury Misconduct
Mr. Aguirre next contends the district court erred in failing to grant him a
new trial based upon the jury's misconduct in using a dictionary to look up the
definition of the words "distribution" and "pontificate." It is well settled that a
jury's exposure to extrinsic information gives rise to a rebuttable presumption of
prejudice. See Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 923
(10th Cir. 1992); United States v. Hornung, 848 F.2d 1040, 1044-45 (10th Cir.
1988), cert. denied, 489 U.S. 1069 (1989); United States v. Perkins, 748 F.2d
1519, 1533 (11th Cir. 1984). To overcome this presumption, the United States
must prove the jury misconduct was harmless to the defendant. Hornung, 848
F.2d at 1044-45; Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir. 1987); Perkins,
748 F.2d at 1534; United States v. Kupau, 781 F.2d 740, 744 (9th Cir.), cert.
denied, 479 U.S. 823 (1986).
4
In Contreras, we also determined the district court did not violate Fed. R.
Crim. P. 43 or 28 U.S.C. § 753(b) by failing to dismiss the 132 jurors in open
court and in the presence of the defendants. See id. at ___. To the extent Mr.
Aguirre asserts claims under Rule 43 or 28 U.S.C. § 753(b), these claims are
rejected pursuant to our reasoning in Contreras.
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To determine whether the United States has overcome the presumption of
prejudice, the court must objectively weigh all of the facts and circumstances of
the case. Mayhue, 969 F.2d at 923-24.
When a trial court is apprised of the fact that an extrinsic influence
may have tainted the trial, the proper remedy is a hearing to
determine the circumstances of the improper contact and the extent
of the prejudice, if any, to the defendant.... [A]n objective test
should be applied in making an assessment of whether the defendant
was prejudiced by the extraneous information. The court "should
assess the 'possibility of prejudice' by reviewing the entire record,
analyzing the substance of the extrinsic evidence, and comparing it to
that information of which the jurors were properly aware."
Hornung, 848 F.2d at 1045 (citations omitted). The trial judge is "uniquely able
to assess the likelihood that the extraneous information [considered by the jury]
was prejudicial." Mayhue, 969 F.2d at 922.
In Mayhue, the jury foreman in a race discrimination case copied the
dictionary definitions of the words "discriminate" and "prejudice" on to a piece of
paper and read the definitions aloud to the other jurors during their deliberations.
Id. at 921. The district court granted a new trial for the defendant based upon the
jury's misconduct, and the plaintiff appealed. Id. at 921-22. On appeal, we cited
a number of factors relevant to determining whether the presumption of prejudice
has been rebutted when a jury consults a dictionary without authorization. Id. at
924. They are as follows:
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(1) The importance of the word or phrase being defined to the
resolution of the case.
(2) The extent to which the dictionary definition differs from the
jury instructions or from the proper legal definition.
(3) The extent to which the jury discussed and emphasized the
definition.
(4) The strength of the evidence and whether the jury had difficulty
reaching a verdict prior to introduction of the dictionary definition.
(5) Any other factors that relate to a determination of prejudice.
Id. at 924. Applying these factors to the circumstances in Mayhue, we determined
the trial court did not abuse its discretion in granting the defendant a new trial.
Id. at 926.
In the instant case, the district court provided counsel for Mr. Aguirre with
the opportunity to present evidence and oral argument on the issue of whether the
court should grant Mr. Aguirre a new trial due to juror misconduct. After careful
consideration of the parties post-trial briefs and oral arguments, the court found:
The word distribute is a word that's commonly used, has a meaning
that I think all of us understand. No showing that Ms. Howard or
anybody else relied on what she saw, if anything, in whatever book
she looked it up that made any difference at all in the jury
deliberations.
And I don't really care whether they looked up pontificate or
not because that doesn't have anything to do with anything except it
was a nice word and it was used, you know, in the course of the trial
for a little humorous relief.
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But I do not believe that the violation of my instructions to the
jury not to seek out any evidence outside the courtroom and looking
up the word distribute or distribution, since it's a word of common
use, common knowledge, I find that it had no prejudicial effect on
the jury whatsoever.
Accordingly, the district court denied Mr. Aguirre's motion for a new trial.
We now turn to the factors delineated in Mayhue to determine whether the
district court properly concluded the presumption of prejudice was rebutted.
1. Importance of the words.
First, we note the word pontificate was unimportant to the resolution of the
case. As the district court found, "pontificate" was used during the trial "for a
little humorous relief." The record does not show, nor does Mr. Aguirre even
allege, that the term had any relevance to the jury's deliberations or to the
offenses Mr. Aguirre was charged with committing. Thus, assuming the
definition of the word "pontificate" was even researched, Mr. Aguirre was not
prejudiced by such conduct.
The jury's exposure to the dictionary definition of the word "distribution"
requires a closer inquiry. Unlike "pontificate," the term "distribution" was
important to the jury's deliberations. "Distribution" appears repeatedly
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throughout the superseding indictment and the term is referred to in two of the
counts Mr. Aguirre was charged with violating.
2. Extent to which dictionary and legal definitions differ.
Notwithstanding the term's importance, the district court properly noted the
term "distribution" is a word of common usage and common knowledge.
Webster's Ninth New Collegiate Dictionary includes the following definitions for
distribute: to divide among several or many; to spread out so as to cover
something; to give out or deliver, especially to members of a group. Webster's
New Collegiate Dictionary 368 (1984). Webster's provides the following
synonyms for distribute: dispense, divide, deal, and dole. Id. In its instructions
to the jury, the district court defined the term "distribution," in the context of drug
conspiracy, to mean "the defendant intentionally delivered marijuana to another
person." We do not believe the dictionary definition of distribution differs
appreciably or is less demanding than its legal definition provided by the district
court. If anything, the dictionary definition is more detailed than the court's
definition. Thus, to the extent any of the jurors determined Mr. Aguirre engaged
in distribution under the term's dictionary meaning, they also determined Mr.
Aguirre engaged in distribution under its legal definition.
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3. Extent to which jury discussed and emphasized definition.
Mr. Owens testified that Ms. Howard read aloud the dictionary definition of
distribution to the other jurors. However, the record does not indicate any of the
jurors relied upon or attached any significance to the definition. Although Mr.
Owens questioned nine of the twelve jurors after their verdict, he did not allege
any of them relied upon this definition in reaching their verdict. Nor did he
testify that any of the jurors other than Ms. Howard recalled that the definition of
distribution was even read to them. Thus, this factor weighs in favor of a finding
that Mr. Aguirre was not prejudiced by the juror misconduct.
4. Strength of evidence and whether jury had difficulty reaching verdict
prior to introduction of definition.
The United States introduced a plethora of evidence at trial establishing
Mr. Aguirre's involvement in large-scale drug distribution and money laundering.
Between 1985 and 1992, the Internal Revenue Service estimated Eleno Aguirre
and his wife spent $2,127,244.95 more than their reported income. In 1992,
federal agents discovered $1,800,000.00 in cash buried in the backyard of Mr.
Aguirre. Indeed, Mr. Aguirre does not even challenge the sufficiency of evidence
against him on appeal. Furthermore, there is no evidence in the record that the
jury was deadlocked or was having any difficulty reaching a verdict prior to the
introduction of the definition.
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5. Other factors relating to a determination of prejudice.
Mr. Owens' affidavit indicates the term distribution was looked up and
discussed as it related to the guilt or innocence of Sonia Gallegos. There is
absolutely no evidence the term was researched or discussed in connection with
the determination of Mr. Aguirre's guilt. Accordingly, this factor also indicates
the juror misconduct was not prejudicial to Mr. Aguirre.
Based on the above factors, we conclude the district court properly
determined Mr. Aguirre was not prejudiced by the juror misconduct. The record
clearly establishes any juror impropriety was harmless to Mr. Aguirre.
Consequently, the district court did not err in denying the defendants' motion for a
new trial based on juror misconduct.
C. Prosecutorial Vindictiveness
Finally, Mr. Aguirre contends the district court should have dismissed the
superseding indictment because of prosecutorial vindictiveness. Following the
mistrial, the United States filed a superseding indictment expanding the charges
against Mr. Aguirre. Mr. Aguirre asserts the United States was aware of the
information giving rise to the increased charges prior to his first trial. Given its
prior knowledge, along with the fact the United States suffered negative publicity
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following the mistrial, Mr. Aguirre contends vindictiveness motivated the
increased charges.
We decided a virtually identical vindictive prosecution claim in the recent
appeal of Mr. Aguirre's co-defendant, Doloras Contreras. See Contreras, __ F.3d
at ___. In Contreras, based on the totality of the circumstances, we determined
there was no reasonable likelihood the increased charges in the superseding
indictment stemmed from prosecutorial vindictiveness. Based on our reasoning in
Contreras, Mr. Aguirre's vindictive prosecution claim also fails.
IV. CONCLUSION
Based on the foregoing reasons, we hereby affirm the convictions of Mr.
Aguirre in all respects.
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