IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________________
No. 97-40930
______________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER LOPEZ CANTU,
Defendant-Appellant.
_____________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_____________________________________________
February 3, 1999
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
WIENER, Circuit Judge.
Defendant-Appellant Javier Lopez Cantu appeals his convictions
for (1) conspiracy to possess 1,000 kilograms or more of marijuana
with intent to distribute and (2) conspiracy to launder drug
proceeds. He further challenges the jury’s verdict of forfeiture
of property under 21 U.S.C. § 853. For the reasons set forth
below, we affirm both the convictions and the forfeiture verdict.
I.
FACTS AND PROCEEDINGS
In April 1995, Mark Miller was stopped by police for a routine
traffic violation about 200 miles outside of Houston. When the
police discovered that Miller was transporting approximately 200
pounds of marijuana, he agreed to cooperate with them.
The police disabled Miller’s vehicle and instructed him to
call the persons for whom he was delivering the marijuana and ask
them for assistance. He did so, and approximately four hours
later, Fabian Cavazos and the defendant-appellant’s brother, Roy
Cantu, arrived driving separate vehicles. The officers observed
the two men transfer the marijuana into the newly-arrived vehicles,
then arrested them. After Miller, Cavazos, and Roy Cantu
identified defendant-appellant Cantu as the leader of the
marijuana-distribution organization for which they worked,
officials investigated and eventually arrested him. The
government’s evidence against Cantu at trial consisted largely of
(1) testimony from some of his employees who had already pleaded
guilty to narcotics offenses regarding Cantu’s leadership role in
a narcotics ring and (2) documentary evidence, such as phone
records and ownership records of vehicles and residences, linking
Cantu to the marijuana organization.
The jury convicted Cantu of the conspiracy charges, but
acquitted him of the charge of possession of marijuana with intent
to distribute. The jury also entered a verdict of forfeiture as to
eleven properties.
On the morning of the second day of jury deliberations during
the guilt-innocence phase of the trial, but before the jury had
begun that day’s deliberations, a juror named James Almaraz
reported to the court that the night before he had been approached
2
by Rene De La Rosa regarding the trial. With the attorneys for
both parties present, the district court held a hearing in
chambers. In response to questioning by the court, Almaraz
reported that he was approached by De La Rosa who stated that he
was “real good friends with [Cantu] and he knows what [Cantu] does,
but he just told me that he would appreciate if I would testify
[sic] that [Cantu] was innocent.” Almaraz also informed the court
that one of his girlfriend’s coworkers had passed a message to him
through his girlfriend that, if he voted to acquit Cantu, the
coworker would “give [him] some money.” Almaraz indicated that he
had not been approached prior to the night before he reported the
incidents to the court and had not talked to anyone about what had
occurred.
The district court allowed counsel for both parties to
question Almaraz and then asked whether they would consent to the
removal of Almaraz from the jury. Even though Cantu’s attorney
stated that he was not willing to consent to Almaraz’s removal
until he spoke to his client, the district court dismissed Almaraz
immediately and then instructed the remaining jurors not to
consider the excusal of the twelfth juror for any purpose.
After the jury returned its guilt-innocence verdicts and while
it was deliberating on the forfeiture issue, Cantu requested
permission to interview the remaining eleven jurors to determine
whether any of them had been approached by anyone or whether any of
them had heard of the incidents involving Almaraz. The district
3
court denied this request. Cantu later filed a motion and
supporting memorandum, seeking meaningful access to the jurors. In
these filings, Cantu’s counsel asserted that he had learned from an
unnamed source that one of the remaining jurors had been told that
Cantu had been convicted of a drug trafficking offense on at least
one prior occasion. Cantu repeated this assertion in the
memorandum he submitted in support of his motion for a new trial.
The district court denied both motions.
In addition to challenging the district court’s handling of
the failed jury tampering incident, Cantu asserts for the first
time on appeal that the district court (1) through its questioning
of particular witnesses, improperly created the impression that the
court was partial to the government; (2) erred in admitting hearsay
evidence; and (3) erred in permitting the eleven members of the
jury who remained after the dismissal of Almaraz to render a
verdict on the forfeiture issue, rather than dismissing the jury
and granting Cantu an entirely new trial before a new jury, limited
to forfeiture.
II.
ANALYSIS
A. Jury Tampering Incident
1. Standard of Review
We review a district court’s determination that the jury was
not improperly tainted by extrinsic evidence under the clearly
4
erroneous standard,1 and its choice of methods to investigate the
possibility of extrinsic taint for abuse of discretion.2 We also
review a district court’s denial of a motion for a new trial for
abuse of discretion.3
2. Merits
Cantu asserts that the district court erred in (1) failing to
conduct an evidentiary hearing to investigate whether the remaining
jurors had been exposed to extrinsic influence; (2) refusing to
grant Cantu access to the remaining jurors; and (3) refusing to
grant Cantu’s motion for a new trial.
“[T]he remedy for allegations of juror impartiality is a
hearing in which the defendant has the opportunity to prove actual
bias.”4 The district court is not, however, required to conduct a
“full-blown evidentiary hearing in every instance in which an
outside influence is brought to bear on a petit jury.”5 Here, in
the presence of defense counsel and the prosecutor, the district
court questioned Juror Almaraz in chambers regarding the two
attempted tampering incidents that he had reported. Counsel for
1
United States v. Kelley, 140 F.3d 596, 608 (5th Cir.), cert.
denied, 119 S. Ct. 247 (1998).
2
United States v. Jobe, 101 F.3d 1046, 1058 (5th Cir. 1996)
(quoting United States v. Roberts, 913 F.2d 211, 216 (5th Cir.
1990)), cert. denied, 118 S. Ct. 81 (1997).
3
United States v. Freeman, 77 F.3d 812, 815 (5th Cir. 1996).
4
Smith v. Phillips, 455 U.S. 209, 215 (1982).
5
United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1991).
5
both parties were present throughout the hearing and were allowed
to examine Almaraz. In light of his responses, the court
determined that, although Almaraz should be dismissed, it was not
necessary to voir dire the remaining jurors because Almaraz had
told no other member of the jury about the incidents, and no other
juror had reported any such incident.6
The hearing conducted by the district court was adequate to
determine whether it was necessary to interview the remaining
jurors. Almaraz indicated that the two incidents occurred the
night before he reported them to the court and that he had not told
anyone else about what had occurred. In light of these answers and
in view of the potential disruptive effect of questioning all
remaining jurors,7 the district court did not abuse its discretion
in the way it handled the allegations of outside influence on the
jury or in denying Cantu’s motion for a new trial.8
B. Judicial Questioning
6
See United States v. Tarpley, 945 F.2d 806, 811 (5th Cir.
1991) (“[I]t is not sufficient to trigger the requirement of
further investigation that a juror have had contact with an outside
source of information. Rather, the defendant must show that
extraneous prejudicial material had likely reached the jury.”)
(citation and quotation omitted).
7
See Ramos, 71 F.3d at 1153 (“In determining whether to
conduct a hearing in a case such as this, the court must balance
the probable harm resulting from the emphasis such action would
place upon the misconduct and the disruption involved in conducting
a hearing against the likely extent and gravity of the prejudice
generated by the misconduct.”).
8
See id. at 1153-54; United States v. Posada-Rios, 158 F.3d
832, 876-77 (5th Cir. 1998).
6
1. Standard of Review
Because Cantu did not object contemporaneously to the
instances of witness interrogation of which he now complains, we
review the district court’s questioning of witnesses for plain
error.9 “Plain error occurs when the error is so obvious and
substantial that failure to notice and correct it would affect the
fairness, integrity, or public reputation of judicial proceedings
and would result in manifest injustice.”10
2. Merits
That “[a] federal judge may comment on the evidence, question
witnesses, bring out facts not yet adduced, and maintain the pace
of the trial by interrupting or setting time limits on counsel” is
settled beyond peradventure.11 In so doing, however, a judge cannot
appear to be partial to the prosecution.12 When considering whether
a court appeared impartial, we must review the entire record.13 Our
9
United States v. Mizell, 88 F.3d 288, 297 (5th Cir.), cert.
denied, 117 S. Ct. 620 (1996).
10
Id.
11
United States v. Williams, 32 F.3d 921, 928 (5th Cir. 1994);
see also Fed. R. Evid. 614(b) (“The court may interrogate
witnesses, whether called by itself or by a party.”).
12
United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998);
United States v. Wilson, 135 F.3d 291, 307 (5th Cir.), cert.
denied, 118 S. Ct. 1852 (1998); Herman v. United States, 289 F.2d
362, 365 (5th Cir. 1961) (“The trial judge has a duty to conduct
the trial carefully, patiently, and impartially. He must be above
even the appearance of being partial to the prosecution.”).
13
United States v. Carpenter, 776 F.2d 1291, 1294 (5th Cir.
1985).
7
task is to determine whether the judge’s behavior was “so
prejudicial that it denied the defendant a fair, as opposed to a
perfect, trial.”14 “To rise to the level of a constitutional error,
the district judge’s actions, viewed as a whole, must amount to an
intervention that could have led the jury to a predisposition of
guilt by improperly confusing the functions of judge and
prosecutor.”15
Cantu asserts that reversal of his conviction is required
because the district court’s questioning “was pervasive, often
leading, and designed to rehabilitate the credibility of government
witnesses or undermine counsel for Defendant’s questioning on
cross-examination.” Cantu rests his argument primarily on United
States v. Saenz,16 a case in which we held that the same district
court’s questioning of witnesses created an appearance that the
court was partial to the prosecution and thereby denied the
defendant a fair trial.17
In reaching our holding in Saenz, we emphasized that such a
result obtained only because of the “unusual combination of
circumstances” the case presented.18 Most importantly, the
14
United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994);
see also United States v. Davis, 752 F.2d 963, 974 (5th Cir. 1985).
15
Bermea, 30 F.3d at 1569; see also Davis, 752 F.2d at 974.
16
134 F.3d 697 (5th Cir. 1998).
17
Id. at 704-13.
18
Id. at 699.
8
government’s case in Saenz rested almost entirely on the testimony
of a codefendant who was cooperating with the prosecution.19 As a
result, the outcome of the case hinged on whether the jury believed
the testimony of the government’s witness or that of the defendant,
who —— unlike Cantu —— testified in his own defense. In light of
the crucial nature of the testimony of these two witnesses and the
scant evidence supporting conviction (other than the cooperating
witness’ testimony), we held that the district court’s substantial
questioning of both key witnesses in a manner that could have
appeared to convey partiality toward the prosecution required that
we reverse the defendant’s conviction and remand the case for a new
trial.20
The present case is distinguishable from Saenz in several key
respects. First, rather than resting on the testimony of a single
witness, the government’s case against Cantu featured numerous
substantive witnesses, including both coconspirators and law
enforcement officials. Second, Cantu did not testify in his own
defense, so the district court had no opportunity to question ——
let alone, improperly question —— him.21 Third, the district
19
Id. at 702.
20
Id. at 712-13.
21
See id. at 709 (“This Court is particularly sensitive to a
trial judge’s questioning of the defendant, because [w]hen a
defendant takes the stand in his own behalf, any unnecessary
comments by the court are too likely to have a detrimental effect
on the jury’s ability to decide the case impartially.”) (citation
and quotation omitted).
9
court’s questioning of witnesses was not nearly as extensive as
that in Saenz.22 In sum, although the district court’s questioning
in the present case may bear some similarity to that in Saenz, the
unique combination of factors that led to a reversal in Saenz is
absent here. We thus conclude that the district court’s
examination of witnesses did not constitute plain error.
C. Hearsay
1. Standard of Review
We review a district court’s evidentiary rulings for abuse of
discretion.23 Should we determine, however, that the district court
erred in admitting hearsay evidence, we must determine additionally
whether the admission of the testimony was harmless.24
2. Merits
Cantu argues that on four occasions the district court erred
in admitting hearsay evidence and that, when viewed cumulatively,
the admission of this evidence was not harmless. Cantu first
complains that the district court improperly admitted a government
22
In Saenz, the district court’s questioning of the
government’s cooperating witness consisted of over 18 percent of
his testimony —— 264 out of the 1460 lines of transcript. Id. at
704 n.3. The court’s questioning of the defendant during direct
examination made up 23.5 percent of the direct examination (253 out
of 1075 lines). The court did not significantly interrupt the
cross-examination or redirect of the defendant. Id. at 712 n.7.
In the present case, the district court’s questioning of witnesses
did not approach this level of intrusiveness.
23
United States v. Clements, 73 F.3d 1330, 1334 (5th Cir.
1996).
24
United States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996).
10
exhibit consisting of certified copies of public records from
Hidalgo County, Texas, including court minutes reflecting a guilty
plea by one Javier Lopez Cantu in a misdemeanor marijuana case. As
a preliminary matter, Cantu did not object to the admission of the
government exhibit on hearsay grounds. Rather, he objected only
that the records were irrelevant because the government had failed
to prove that the person identified in the records was the
defendant, a separate contention from the one that Cantu raises on
appeal.
Again, when a party fails to object to the admission of
evidence, we review the district court’s ruling only for plain
error.25 The district court’s admission of the government exhibit
in question did not constitute plain error —— indeed, it did not
constitute error of any sort. First, the certified court records
are public records, thereby falling within the public records
exception to the hearsay rule.26 Moreover, to the extent that Cantu
is arguing that the admissibility of the records was dependent on
the fulfillment of a condition of fact —— i.e., that Cantu was the
person identified in the records —— the district court only needed
25
Fed. R. Evid. 103(d); Peaches Entertainment Corp. v.
Entertainment Repertoire Assocs., Inc., 62 F.3d 690, 694 (5th Cir.
1995); see supra text accompanying note 10.
26
See Fed. R. Evid. 803(8); United States v. Vidaure, 861 F.2d
1337, 1340-41 (5th Cir. 1988) (holding certified and exemplified
copies of defendant's convictions and copies of documents contained
in his “pen packet” obtained from the Texas Department of
Corrections were properly admitted in evidence under hearsay
exception for public records and reports).
11
to determine whether the jury could reasonably find that the
records referred to this Javier Lopez Cantu.27 Not only do the
documents refer to Cantu by his full name, they reflect that Cantu
was represented by Ed Cyganiez, an attorney who testified at trial
that he represented Cantu in the present case and was hired by
Cantu to represent his brother, Roy Cantu, on two other occasions.
In light of this evidence, the district court did not err in
finding that condition of fact was sufficiently established to
admit the evidence.
Cantu next contends that the district court erred when it
allowed his sister-in-law, Graciela Cantu, to testify that Cavazos
worked for Cantu. Cantu’s assertion is baseless. When defense
counsel objected to Graciela Cantu’s testimony at trial, the
district court instructed the prosecutor to establish whether the
witness had personal knowledge of Cavazos’s relationship to Cantu.28
Graciela Cantu then testified that she believed that Cantu was
Cavazos’s boss because she had personally observed Cantu giving
Cavazos orders while they were unloading and storing marijuana in
her house. That her testimony consisted of a conclusion about the
27
Huddleston v. United States, 485 U.S. 681, 689-90 (1988).
28
See Fed. R. Evid. 602 (“A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.”); Davis, 792
F.2d at 1303-04 (holding officer’s testimony that he personally
knew when guns were released by police department was sufficient to
establish testimony not hearsay given officer’s “personal
connection to subject matter”).
12
relationship between Cantu and Cavazos, rather than a simple
description of a concrete fact, does not render it inadmissible
hearsay. “Personal knowledge can include inferences and opinions,
so long as they are grounded in personal observation and
experience.”29 The district court did not err in permitting
Graciela Cantu to testify that Cavazos worked for Cantu, given that
her testimony was grounded in her personal observations of the
interaction of these two men.30
Cantu also challenges the district court’s admission of
testimony by a Cantu employee, Alfonso Zaleta, describing a
conversation among himself, Sergio Gomez, and Rafael Ornelas —— the
last two of whom are Mexican nationals —— in which Gomez and
Ornelas identified Cantu as a drug trafficker. According to
Zaleta’s testimony, Gomez and Ornelas demanded that Cantu pay, and
Cantu agreed to pay, a $50,000 “tariff” to move marijuana through
Matamoros. Zaleta’s testimony thus established that there was a
conspiracy among Cantu, Gomez, and Ornelas to move marijuana
through Mexico into the United States and that Gomez’s and
Ornelas’s statements regarding Cantu were in furtherance of that
29
United States v. Neal, 36 F.3d 1190, 1206 (1st Cir. 1994)
(citation and quotation omitted), cert. denied, 117 S. Ct. 519
(1996).
30
See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc.,
630 F.2d 250, 262-63 (5th Cir. 1980) (holding witness’ testimony
that he understood individual bought cattle for defendant based on
fact that individual spoke to one of defendant’s employees four or
five times a day was sufficiently grounded in witness’ personal
knowledge).
13
conspiracy —— that is, to ensure that they were paid for sheparding
Cantu’s drugs through Matamoros. As coconspirator statements made
in furtherance of a conspiracy are admissible, the district court
did not err in permitting Zaleta’s testimony.31
Last, Cantu asserts that the district court erred in allowing
Special Agent John Wood to testify, over Cantu’s hearsay objection,
that —— based on statements made by Cavazos and Antonio Sepulveda,
another of Cantu’s employees —— Wood believed that Cantu was aware
that he was under investigation. The implication of Wood’s
testimony was that Cantu’s awareness of the investigation explained
why the police did not find significant quantities of drugs or drug
ledgers when they searched Cantu’s residence.
The government does not contest that Agent Wood based his
testimony, at least in part, on information other than his own
personal knowledge.32 Neither does the government argue that Wood’s
testimony was offered for a purpose other than to establish the
truth of the matter asserted, i.e., as background information to
explain the actions of the investigators.33 Rather, it contends
31
See United States v. Flores, 63 F.3d 1342, 1377 (5th Cir.
1995).
32
Although the government affixes the qualifier “in part” to
its admission that Agent Wood based his testimony on hearsay, Wood
did not so hedge his testimony, stating: “I believe [Cantu] did
[know that he was under investigation], based on statements given
by other people.”
33
See United States v. Carrillo, 20 F.3d 617, 619-20 (5th Cir.
1994).
14
that Agent Wood was an expert either in the investigation of
Cantu’s case or the search of Cantu’s residence, and was thus
permitted to testify regarding that search based on any information
that he discovered during the investigation. Significantly, the
government neither requested that the district court qualify Wood
as an expert nor laid any foundation for treating him as such.
Were we to approbate the government’s theory, then any time
that law enforcement officials have more than a tangential
relationship to an investigation of a defendant, they would be
permitted to testify to any conclusion they have reached, even when
such a conclusion is based on the out-of-court statements of
persons not before the court.34 Although it is clear that there can
be circumstances under which a law enforcement official can testify
as an expert in a criminal case,35 permitting an official to testify
regarding a matter that requires no specialized knowledge36 without
34
See Fed. R. Evid. 706 (“The facts or data in the particular
case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence.”).
35
See, e.g., United States v. Gresham, 118 F.3d 258, 266 (5th
Cir. 1997) (ATF agent testified as expert that, based on, inter
alia, discussions with manufacturers, corporate literature, and
reference materials, components of firearm had been manufactured
outside Texas and traveled through interstate commerce, thus
establishing interstate commerce nexus required for conviction
under 18 U.S.C. § 922(g)), cert. denied, 118 S. Ct. 702 (1998).
36
Wood testified only that, based on “statements [he] was given
by other people,” Wood believed that Cantu knew he was under
investigation. The agent did not testify that he believed that the
15
requiring the government to lay any foundation regarding the
witness’ expertise in the subject matter, based on the simple fact
that the official was involved in the investigation of the
defendant, would raise serious concerns.37 As we conclude, however,
that, even assuming that Agent Wood’s testimony constituted
impermissible hearsay and opinions, the admission of his testimony
was harmless, we need not determine whether the district court
erred in admitting the testimony.
To ascertain whether the admission of the inadmissible
evidence was harmless, we must decide, in light of all of the
search of Cantu’s premises revealed no drug paraphernalia because
Cantu was aware of the investigation —— testimony which, at a
minimum, would have arguably relied in part on Wood’s experience as
an investigator; rather such a conclusion was simply a possible
implication of his testimony. It requires no specialized knowledge
—— unless one characterizes knowledge obtained through hearsay
statements as specialized —— to testify that a person was aware
that he was under investigation.
37
See United States v. Johnston, 127 F.3d 380, 393-96 (5th Cir.
1997) (holding prosecutor’s questioning of law enforcement
officials designed to introduce indirectly hearsay testimony of
informants and other law enforcement officials constituted “serious
prosecutorial misconduct”), cert. denied sub nom. United States v.
Lowery, 118 S. Ct. 1174 (1998); Gochicoa v. Johnson, 118 F.3d 440,
445-46 (5th Cir. 1996) (holding law enforcement official’s
testimony based on informant’s out-of-court statement improperly
circumvented hearsay prohibition), cert. denied, 118 S. Ct. 1063
(1998); Fed. R. Evid. 803(8)(B) (excluding from “public records”
exception to hearsay rule “matters observed by police officers and
other law enforcement personnel” in criminal cases); Fed. R. Evid.
803(8) advisory committee’s note (“In one respect, however, the
rule with respect to evaluative reports under item (c) is very
specific: they are admissible only in civil cases and against the
government in criminal cases in view of the almost certain
collision with confrontation rights which would result from their
use against the accused in a criminal case.”) (emphasis added).
16
evidence, whether that evidence actually contributed to the jury’s
verdict.38 Here, multiple witnesses —— coconspirators, law
enforcement agents, and third parties —— offered testimony
concerning Cantu’s direction of, and relationship to, the marijuana
distribution ring. Given all this evidence, we are satisfied that
Agent Wood’s conjectural testimony regarding the absence of
narcotics evidence at Cantu’s residence when it was searched by the
police had little, if any, effect on the jury’s verdict.
Accordingly, the admission of the testimony was harmless error if
it was error at all.39
D. Forfeiture Issue
1. Standard of Review
We review for abuse of discretion a district court’s decision
to permit an eleven-member jury to return a verdict after the
district court has dismissed the twelfth juror for just cause.40
2. Merits
Cantu contends, without citation, that the district court
violated Federal Rule of Criminal Procedure 23 when it permitted
the jury —— consisting as it did of only eleven members following
the dismissal of Juror Almaraz —— to consider the issue of
forfeiture. Rule 23(b) states that juries “shall be of twelve,”
38
Dickey, 102 F.3d at 163.
39
See id.
40
Fed. R. Crim. P. 23(b); United States v. O’Brien, 989 F.2d
983, 986 (5th Cir. 1990).
17
unless the parties “stipulate in writing with the approval of the
court that the jury shall consist of any number less than twelve.”41
The rule further provides, however, that “[e]ven absent such
stipulation, if the court finds it necessary to excuse a juror for
just cause after the jury has retired to consider its verdict, in
the discretion of the court a valid verdict may be returned by the
remaining 11 jurors.”42 Cantu asserts that the forfeiture
proceedings constituted a “wholly separate trial” from the guilt-
innocence stage of the proceedings, and that, because he did not
consent to going forward with only eleven jurors, the district
court abused its discretion. As Cantu mischaracterizes the nature
of the forfeiture proceeding in this case, his assertion is without
merit.
Federal Rule of Criminal Procedure 31(e) provides: “If the
indictment or the information alleges that an interest or property
is subject to criminal forfeiture, a special verdict shall be
returned to the extent of the interest or property subject to
forfeiture, if any.”43 The Supreme Court has held that “the right
to a jury verdict on forfeitability does not fall with the Sixth
Amendment’s constitutional protection,”44 so the question whether
41
Fed. R. Crim. P. 23(b).
42
Id.
43
Fed. R. Crim. P. 31(e).
44
Libretti v. United States, 516 U.S. 29, 48 (1995).
18
the district court erred in proceeding with eleven jurors is simply
a matter of statutory construction, not one of constitutional
proportions.
Cantu cites no authority in support of his assertion that,
because Juror Almaraz was excused, Cantu was entitled to a separate
trial before a different jury on the forfeiture issue. As our
discussion in United States v. Cauble45 indicates, Rule 31(e) does
not require that the forfeiture issue be decided by a separate
jury. In addressing the preferred procedure when a special
forfeiture verdict is necessary, we stated:
To ease the jurors’ task in determining guilt or
innocence, the forfeiture issue should be withheld from
them until after they have returned a general verdict. .
. . Such a bifurcated trial —— using, of course, only one
jury —— is not only convenient for the judge and fairer
to the defendant. It also prevents the potential penalty
of forfeiture from influencing the jurors’ deliberations
about guilt or innocence.46
Inasmuch as Rule 31(e) does not require that the forfeiture
allegations be heard by a separate jury, it follows that the
authority to proceed with eleven jurors under Rule 23(b) applies
not only to the guilt-innocence phase of Cantu’s trial, but also to
the special verdict portion of the proceeding. In other words,
Rule 31(e) applies to the single trial of which there are two parts
45
United States v. Cauble, 706 F.2d 1322, 1347 (5th Cir. 1983).
46
Id. at 1348 (emphasis added).
19
—— guilt-innocence and forfeiture.47 Cantu has not challenged on
appeal the district court’s decision to proceed to the guilt-
innocence verdict with only eleven jurors, and we perceive no error
in the district court’s permitting that same truncated jury to
reach the special verdict on the forfeiture issue as well.
III
CONCLUSION
For the foregoing reasons, the conviction of Javier Lopez
Cantu and the judgment of forfeiture are
AFFIRMED.
47
Our decision in United States v. Webster, 162 F.3d 308 (5th
Cir. 1998) is not to the contrary. In Webster, we addressed a
district court’s authority to replace with an alternate a juror who
had been dismissed for cause after the return of the guilt-
innocence verdicts and during the separate punishment proceeding.
We held that the district court did not have the authority to do so
because Fed. R. of Crim. P. 24(c) required the court to dismiss all
alternate jurors once the jury “retire[d] to consider” the guilt-
innocence verdicts. Id. at 347. The present case is
distinguishable on two important grounds. First, it concerns the
district court’s authority under Fed. R. of Crim. P. 23(b) to
permit the jury to proceed to a verdict with only eleven jurors,
rather than its authority to replace a juror with an alternate.
Second, it involves only a brief proceeding to reach a special
verdict regarding forfeiture consisting of just one witness, rather
than a truly separate trial to determine the defendant’s punishment
featuring new witnesses and new evidence.
20