United States v. Ortiz-Arrigoitia

June 21, 1993

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

Nos. 91-1290
91-1365
91-1366

UNITED STATES,
Appellee,

v.

LUIS E. ORTIZ-ARRIGOITIA, a/k/a COLIBRI, et al
Defendants, Appellants

ERRATA SHEET

The opinion of this court issued on June 11, 1993, is
amended as follows:

On page 19, fourth line of footnote 2, replace "n.4" with
"n.9."

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 91-1290

UNITED STATES,
Appellee,

v.

LUIS E. ORTIZ-ARRIGOITIA, a/k/a COLIBRI,
Defendant, Appellant.

No. 91-1365

UNITED STATES,
Appellee,

v.

LUIS HIRAM ORTIZ-CAMERON,
Defendant, Appellant.

No. 91-1366

UNITED STATES,
Appellee,

v.

PEDRO MEDINA-VAZQUEZ, a/k/a PURUCO,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]

Before

Selya and Stahl, Circuit Judges,

and Skinner,* District Judge.

Samuel I. Burstyn argued for appellants Ortiz-Cameron and Medina-

Vazquez and was on brief for appellant Ortiz-Cameron.
Jose R. Franco Rivera argued for appellant Ortiz-Arrigoitia and

was on joint brief for appellants Ortiz-Arrigoitia and Medina-Vazquez.
Luis Rafael Rivera on joint brief for appellants Medina-Vazquez

and Ortiz-Arrigoitia.
Joseph S. Uberman, Attorney, Criminal Division, U.S. Department

of Justice, with whom Robert S. Mueller, III, Assistant Attorney

General, Mary Lee Warren, Chief, Criminal Division, U.S. Department of

Justice, Hope P. McGowan, Attorney, Criminal Division, U.S. Department

of Justice, and Daniel F. Lopez Romo, United States Attorney, were on

brief for appellee.

June 11, 1993

* Of the District of Massachusetts, sitting by designation.

SKINNER, District Judge. These appeals are from convictions

on assorted charges of conspiracy, importing and possessing

large quantities of marijuana and cocaine, aiding and

abetting therein and, in the case of Medina Vazquez,

possession of a firearm in connection with the drug charges.

These defendants were tried together with two others. This

trial was part of the serial prosecution of some 55 members

of a large scale drug importation and distribution

organization known as "La Nena." Of their numerous

assertions of error, the most serious is the denial of their

motions for a mistrial after discovery by the court that

four of the jurors had arrived at a conclusion concerning

guilt prior to the presentation of the defendants' evidence.

We reserve our discussion of this difficult issue until

last.

l. Sufficiency of evidence.

All defendants challenge the sufficiency of the

evidence against them because the government's case depended

on the testimony of Geraldo Portalatin Toledo

("Portalatin"), a leading member of the "La Nena" drug

organization. Defendants argue that Portalatin's testimony

was so unreliable and so sketchy as to them, that it was

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insufficient as a matter of law. Portalatin was cross-

examined concerning his deals with the government. The

judge gave complete and correct instructions detailing the

special care the jury should take in assessing the testimony

of an accomplice. Under these circumstances, an accomplice

is a qualified witness and the credibility of the witness is

for the jury. United States v. Restrepo-Contreras, 942 F.2d

96, 99 (1st Cir. 1991) (it is the province of the jury to

assess the credibility of a witness), cert. denied, 112 S.

Ct. 955 (1992). Portalatin testified that Ortiz Arrigoitia

and Medina Vazquez helped unload various shipments of

marijuana and cocaine and Ortiz Cameron participated in the

unloading and distribution of a load of cocaine at a

"clandestine airfield" at La Furnia Farm in Barceloneta,

Puerto Rico. Portalatin's evidence, if believed, when

considered with the other evidence in the case was

sufficient to support conviction by the jury,

notwithstanding Portalatin's unsavory history and the

contrary evidence presented by the defendants.

2. Improper admission of testimony.

Ortiz Cameron further asserts error in the

admission of evidence. Portalatin testified that the driver

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of a Chevrolet "power wagon" (apparently a four-wheel-drive

truck) which was used to remove the cargo of cocaine after

an incoming plane crashed at Furnia was "Hiram," whom he

identified as Luis Hiram Ortiz Cameron, the defendant.

Portalatin had been in the plane which crashed, had bumped

his head, had pulled the pilot out of the plane and had

described himself as "shaken" by the experience. Ortiz

Cameron argues that Portalatin's condition made him so

unreliable that his testimony should not have been allowed.

There is no evidence, however, that he was in any way

incapacitated. He pulled the pilot from the plane and

helped salvage the cargo. He then spent two hours beside

"Hiram" as the latter drove the "power wagon" to the

destination of the contraband. Under such circumstances,

his credibility was for the jury.

During the cross-examination of Portalatin, the

defense attorney discovered for the first time that

Portalatin, during his debriefing by government agents, was

shown a picture of Ortiz Cameron. He immediately identified

the picture, saying "That's Hiram." It does not appear that

any suggestive comment was made. This picture was not part

of a spread, however, and it was shown to Portalatin in the

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course of the discussion of his participation in the various

drug transactions.

Defense counsel moved that Portalatin's testimony

concerning Ortiz Cameron be stricken as unacceptably

tainted. Among other reasons, he asserted that he had not

been shown the photograph in question, and that the evidence

packet furnished by the prosecution contained copies of

photographs which were simply blotches of white on black.

The prosecutor replied that all defendants had been invited

to the office of the United States Attorney to view all of

the government's hundreds of exhibits, but that none of them

had taken advantage of the opportunity. The trial judge

made no explicit finding, but apparently accepted the

prosecution's explanation. He offered to suspend the trial,

however, to provide defense counsel an opportunity to

examine the photo and to develop any evidence of improper

suggestion. Counsel declined and proceeded with the cross-

examination of Portalatin. Not until eight days later, at

the close of all the evidence, did counsel move for a voir

dire of Portalatin to explore any possible taint. This

untimely motion was denied.

The reliability of identification testimony

allegedly tainted by reason of an impermissibly suggestive

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photograph should be resolved after consideration of all the

circumstances. Manson v. Brathwaite, 432 U.S. 98, 113-14

(1977); United States v. Bouthot, 878 F.2d 1506, 1514 (1st

Cir. 1989). In this case, it would appear that Portalatin

had spent over two hours in the close company of "Hiram,"

albeit at night and under difficult circumstances. He knew

Hiram's first name before the photograph was identified.

The district judge's offer to suspend the trial to

permit further investigation was refused. The defendant was

doubtless entitled to a voir dire examination of Portalatin

before proceeding with the cross-examination, but certainly

not eight days later. There was no error in the denial of

his untimely motion. Similarly, we find no error in the

trial judge's decision to permit Portalatin's identification

to stand.

Ortiz Cameron also alleges error in the admission

of testimony concerning his disappearance from his normal

whereabouts immediately after the "La Furnia" episode and

concerning his wealth, which the government asserted could

only be explained by his participation in illicit drug deals

over a period of time. The defendant had ample opportunity

to rebut such testimony. It is well established that

unexplained flight or a defendant's attempt to conceal his

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identity may be relevant evidence of guilt. See, e.g.,

United States v. Grandmont, 680 F.2d 867, 869 (1st Cir.

1982). Similarly, evidence of the acquisition of otherwise

unexplained wealth may corroborate other evidence of

participation in lucrative crimes. United States v. Ariza-

Ibarra, 605 F.2d 1216, 1224-25 (1st Cir. 1979), cert.

denied, 454 U.S. 895 (1981).

3. Severance.

All three defendants moved before trial for a

severance on the ground that there would be prejudicial

"spill-over" of evidence from one to the other. Such a

motion is addressed to the sound discretion of the trial

judge. United States v. Natanel, 938 F.2d 302, 308 (1st

Cir. 1991), cert. denied, 112 S. Ct. 986 (1992); United

States v. Boylan, 898 F.2d 230, 246 (1st Cir.), cert.

denied, 111 S. Ct. 139 (1990). Where defendants are

indicted in a common conspiracy, there necessarily will be

evidence relevant to the charges against more than one

defendant, and properly so, since co-conspirators are liable

for all of the criminal acts carried out in furtherance of

the conspiracy. United States v. Figueroa, 976 F.2d 1446,

1452 (1st Cir. 1992). The district judge properly exercised

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his discretionary power in denying the motion and properly

instructed the jury to consider the evidence against each

defendant separately.

Defendants Ortiz Arrigoitia and Medina Vazquez

renewed their motion after the defendant Ortiz Cameron

called Rafael Tormes, a convicted member of the same drug

conspiracy, as a witness. On the stand, Tormes testified

that Ortiz Cameron had nothing to do with the La Furnia

unloading. He did not in any way incriminate Ortiz

Arrigoitia or Medina Vazquez. No inconsistent defense was

presented. All that occurred was that on cross-examination

Tormes corroborated some of the details of Portalatin's

testimony. The prejudice claimed by Ortiz Arrigoitia and

Medina Vazquez is that by so doing Tormes bolstered the

credibility of Portalatin to their detriment. The

defendants have offered no authority in support of the

dubious proposition that this entitles them to a mistrial,

and we have found none. See United States v. Angiulo, 897

F.2d 1169, 1194-95 (1st Cir. 1990) (finding

withdrawal/noninvolvement defense insufficiently

antagonistic to require severance); United States v. Luciano

Pacheco, 794 F.2d 7, 8-10 (1st Cir. 1986) (explaining that

the degree of antagonism must go beyond mere finger pointing

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into the realm of fundamental disagreement over core and

basic facts); United States v. Talavera, 668 F.2d 625, 630

(1st Cir.) (concluding that antagonistic defenses do not per

se require severance, even if the defendants are hostile or

attempt to cast blame on each other), cert. denied, 456 U.S.

978 (1982). The district judge properly denied the

defendants' motions for severance and a mistrial.

4. Improper Argument.

In the course of his closing argument, the

prosecutor said with reference to the defense attorneys,

"they want like to scramble your heads, confuse you." After

an objection was overruled, the prosecutor repeated "They

wanted to confuse your head." Later the prosecutor said,

"Do not let the attorneys here intimidate you, ladies and

gentlemen -- ."1 Defense counsel objected. The judge

responded by addressing the jury: "I don't believe that the

attorneys for the defendants are intimidating the jurors so

--."

In this particular instance we are not persuaded

that these comments were so prejudicial as to require

1This quotation and the following one were unfinished
sentences according the transcript and are not ellipses
created by the author of this opinion.

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reversal. We do not understand, however, why, after

numerous warnings from this court, the prosecuting attorneys

in the District of Puerto Rico persist in spiking their

arguments with comments that put their cases at risk. See,

e.g., United States v. Nickens, 955 F.2d 112, 120 (1st Cir.

1992); United States v. Soto-Alvarez, 958 F.2d 473, 477-78

(1st Cir. 1992); United States v. de Leon Davis, 914 F.2d

340, 344-45 (1st Cir. 1990).

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5. Sentencing errors.

Medina Vazquez argues that the district judge

erroneously refused to reduce his offense level by four

because of his minimal participation. U.S.S.G. 3B1.2.

The comment (n. 2) to the cited section suggests that this

reduction should be used sparingly, e.g., in a case where

the defendant was engaged in a single off-loading. In this

case there was credible evidence that Medina Vazquez had

been involved in a number of off-loadings. In the absence

of any transcript of the sentencing hearings in either the

record or the supplementary record, we shall assume that the

district judge made appropriate findings of fact. See,

e.g., Valedon Martinez v. Hospital Presbiteriano, 806 F.2d

1128, 1135 (1st Cir. 1986) ("We have held repeatedly that we

will not review a claim of error if the appellant has failed

to include a transcript of the pertinent proceedings in the

record on appeal.").

Ortiz Cameron argues that the district judge

failed to make sufficiently detailed findings of fact in

resolving factual disputes raised by objections to the

presentence investigation report ("psi"). In fact, those

objections to the psi present in our record on appeal raised

no substantial factual issues, except that of guilt, which

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had already been resolved by the jury. The district judge's

findings were more than adequate under the circumstances.

6. Ineffective assistance of counsel.

Ortiz Cameron alleges ineffective assistance of

trial counsel. We have repeatedly held that, absent

exceptional circumstances, this claim is not open on direct

appeal unless it has been previously raised before the

district judge, who is in the best position to make an

initial judgment. See, e.g., United States v. Gray, 958

F.2d 9, 15 (1st Cir. 1992). This issue was not presented to

the district judge, who in fact praised trial counsel for

his diligence at one point in the trial.

7. Recusal.

After the trial in this case the trial judge

recused himself from the trial of Sonia Berrios Rodriguez,

"La Nena," the purported head of the drug ring, on the

grounds of his familiarity with the facts of the case

because of previous related trials, of which this was one.

Ortiz Cameron claims that this shows that the judge was

prejudiced and should have recused himself earlier. In fact

the judge was under no obligation to recuse himself from the

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trial of "La Nena," but did so as a matter of discretion.

In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989).

Defendant's argument is frivolous.

8. Motion for Mistrial Resulting from Jury Misconduct.

The major controversy in this case swirls around

events stemming from allegations of juror misconduct. There

are two issues that arise in this context. First, we must

decide whether the district court's finding regarding juror

impartiality was clearly erroneous. Second, we must decide

whether a remark made by the district court while

investigating the question of juror impartiality improperly

shifted the burden of proof. While these two questions are

factually intertwined in this case, they are analytically

distinct, and we therefore consider them seriatim.

A. Background.

At the close of the government's case, the judge

was advised that the daughter of a juror, who had been daily

accompanying her mother to the court, had been observed in

prolonged conversation with a young woman identified as the

girl friend of the defendant Ortiz Cameron. The district

judge then interviewed the daughter and her mother, the

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juror. It appeared from these interviews that the juror had

discussed the case at length with her daughter, and had

expressed very definite views about the testimony of the

government's witnesses. The daughter also reported her

understanding from talking with her mother that the jurors

had discussed the case among themselves. The juror was then

segregated from the other jurors and later excused.

The judge then summoned all of the jurors into

chambers, one by one, and asked them the following series of

questions:

l. At this point, have you discussed with the
jurors or anyone else the guilt or innocence of
the defendants?

2. Have you discussed with the other
jurors or with anyone the reputation of
the defendants?

3. Have you discussed with the other
jurors or with anyone else the
credibility of any of the witnesses?

4. At this point, have you reached a
decision regarding the guilt or
innocence of the defendants?

All of the jurors except one answered the first three
questions in the negative. One juror said that he thought

he had heard some comment about the case but could not

remember what it was about. Four jurors, however, answered

the fourth question in the affirmative, indicating that they

had reached a decision concerning the guilt or innocence of

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the defendants. The judge then recalled these four jurors,

again one at a time, and addressed each one as follows:

As I instructed you before, the guilt or
innocence of the defendants is decided
after listening to all the evidence, to
the final summations of the attorneys
and after applying the instructions as
to the law to be given by me.

And my question is, would you be able to
keep an open mind and in the course of
your deliberations with your fellow
jurors, re-examine your own views and
change your opinion if convinced it is
erroneous?

All four of the jurors answered emphatically in the

affirmative. The district judge then declared that he was

satisfied that the jurors would carry out their duty

properly, based on their answers and his observation of

their demeanor.

Counsel for Ortiz Cameron and counsel for Medina

Vazquez (and counsel for another defendant whose appeal is

not before us) moved for a mistrial. Counsel for Ortiz

Arrigoitia expressly declined to so move at that time and

joined in the motion only at the very end of the case, just

before closing arguments. In response to the judge's

comment, counsel for Ortiz Arrigoitia admitted that he had

initially refrained from joining the motion for the purpose

of claiming double jeopardy if the motion had been granted

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without his consent. It is our view that a motion for a

mistrial should be made promptly. This was no case of

mistake or inadvertence, but one of deliberate delay for

tactical purposes. Failure to make a timely motion for

mistrial under these circumstances constitutes a waiver and

precludes consideration of this issue on appeal with respect

to Ortiz Arrigoitia. Cf. United States v. DiPietro, 936

F.2d 6, 9-10 (1st Cir. 1991) (inferring waiver of a

defendant's constitutional protection against double

jeopardy from silence where the defendant had the

opportunity to object but failed to do so until one day

later); Grimaldi v. United States, 606 F.2d 332, 339 (1st

Cir.) (explaining that where defendant had the opportunity

to renew a motion for mistrial for prosecutorial misconduct,

but declined to do so, the claim was not preserved for

appeal), cert. denied, 444 U.S. 971 (1979); Saville v.

United States, 400 F.2d 397, 400 (1st Cir. 1968) (concluding

that motion for mistrial was untimely where defendant failed

to act at the earliest possible opportunity), cert. denied,

395 U.S. 980 (1969).

B. District Court's Finding.

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When a non-frivolous suggestion is made that a

jury may be biased or tainted by some incident, the district

court must undertake an adequate inquiry to determine

whether the alleged incident occurred and if so, whether it

was prejudicial. See, e.g., Boylan, 898 F.2d at 258; United

States v. Anello, 765 F.2d 253, 259 (1st Cir.), cert.

denied, 474 U.S. 996 (1985); United States v. Corbin, 590

F.2d 398, 400 (1st Cir. 1979). The trial judge is not,

however, shackled to a rigid and unyielding set rules and

procedures that compel any particular form or scope of

inquiry. Rather, in light of the infinite variety of

situations in which juror misconduct might be discerned and

the need to protect jurors and the jury process from undue

imposition, the trial judge is vested with the discretion to

fashion an appropriate and responsible procedure to

determine whether misconduct actually occurred and whether

it was prejudicial. Boylan, 898 F.2d at 258. As we have

often explained, "A district court has broad, though not

unlimited, discretion to determine the extent and nature of

its inquiry into allegations of juror bias." Corbin, 590

F.2d at 400.

In this case, upon discovering that a juror may

have spoken about the trial to her eighteen year-old

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daughter, the district court immediately summoned the juror

and the daughter to chambers for separate interviews in the

presence of all counsel. The juror confirmed that she had

spoken to her daughter about the defendants, but denied that

she had talked to the other jurors about the case. The

district court promptly segregated the juror and announced

his intention to interview individually all jurors to

determine if any others had been tainted. The following

morning all jurors denied speaking about the case to

outsiders or each other, though one thought he had heard

some comment among the jurors about the case without

identifying what those comments concerned. Counsel were

present but were not permitted to participate directly in

the interviews; however, the questions posed by the judge to

the jurors reflected concerns previously expressed by

counsel. Counsel has no right to pose specific questions to

a juror or to pursue every desired avenue of inquiry. The

control and direction of a court's investigation into juror

misconduct is within the discretion of the district court,

not defense counsel. Corbin, 590 F.2d at 400.

After interviewing all the jurors and relevant

third parties, consulting with counsel, and weighing the

testimony, demeanor, and credibility of the various parties,

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the court found the jurors were not partial. The trial

court conducted an adequate investigation into the alleged

misconduct and reached a reasonable conclusion about the

jurors' impartiality. Ortiz Cameron and Medina Vazquez

present no compelling evidence to the contrary and we find

nothing in the record that leads us to believe that the

district court's investigation was inadequate or his

findings clearly erroneous.2

C. Remark By Judge.

It is also suggested that the district court

shifted the burden of proof when it asked the four jurors:

"would you be able to keep an open mind and in the course of

your deliberations with your fellow jurors, reexamine your

own views and change your opinion if convinced it is

erroneous?" Although recognizing that the judge's remark is

2Our dissenting colleague suggests an "alternative ground
for reversal" -- the district court's failure to inquire
into Juror Carrero-Roman's statement that members of the
jury had discussed the case. See Stahl, n.9. The

defendants, however, have not specifically argued this issue
on appeal. In any event, we do not consider the alternative
ground to be meritorious. Juror Carrero-Roman's answer was
extremely indefinite and, on the facts of this case, did not
require a full-fledged judicial inquiry. Moreover, the
judge essentially conducted a full-fledged inquiry when he
asked the other jurors questions which would have revealed
precisely the impropriety which Judge Stahl fears.

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less than a textbook model, we do not view the language

employed, in the specific context of this case, as

suggesting that the defendants bore the burden of proving

their innocence.

First, the judge's remark was not an instruction

at all but a question asked mid-trial in the context of an

investigation we have otherwise held to be sufficient. See

supra Part A. Second, the question -- even if somehow

deemed to be an instruction -- did not place the burden of

proof on any specific party but merely asked whether the

jurors retained the ability to reexamine their views in

light of further developments. Indeed, the judge

scrupulously avoided indicating what particular views he

thought the jurors possessed and instead referred only the

jurors' ability to change their "opinion," whatever it might

be. Third, again assuming that the question were to be

deemed an instruction, the defendants did not give the

district court an opportunity to cure it by, at any stage,

proposing a sound alternative instruction.

And, finally, assuming the question were an

instruction, it must be viewed in the context of the entire

jury charge. See Boylan, 898 F.2d at 244; see also Cupp v.

Naughten, 414 U.S. 141, 146-47 (1973) ("a single instruction

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to a jury may not be judged in artificial isolation").

Here, in his pre-deliberations charge, the judge at least

ten times explicitly and directly instructed the jury that

the government bore the burden of proof.3 Moreover, the

judge himself placed his previous questioning of the jury in

context when he stated:

Except for my instructions to you on the
law, you should disregard anything I may
have said during the trial in arriving
at your own findings as to the facts.

Any slight ambiguity created by the mid-trial reference to

an "open mind," then, is adequately dispelled once the

3To provide just two examples, the judge stated:

Indeed the defendants are presumed
by law to be innocent. The law does not
require the defendant to prove his
innocence or produce any evidence at all
and no inference whatsoever may be drawn
from the election of a defendant not to
testify.

The government, that is the
prosecution[,] has the burden of
providing or proving the[ defendants]
guilty beyond a reasonable doubt and if
he fails to do so, you must acquit them.

Later, the judge repeated that "it is up to the government
to prove the[ defendants] guilty beyond a reasonable doubt."
Elsewhere in the charge the judge continually instructed the
jury that the government bore the burden of proof beyond a
reasonable doubt with regard to each element of each
offense.

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"instruction" is viewed in the context of these other, ample

instructions.4

We find further support for our conclusion in a

fifth factor -- circuit precedent. See United States v.

Nickens, 955 F.2d 112, 118-19 (1st Cir. 1992). In Nickens

the district judge, in his opening charge to the jury and in

remarks made to the jury after closing arguments, actually

issued an "open mind" instruction very similar to the mid-

trial question asked here. In finding that the instruction

was not plain error, we held that it "merely told the jury

not to evaluate the evidence it would be hearing until the

evidence was all in and the court had rendered its

instructions." Id. at 118. We further noted that:

Telling a jury to postpone making a
final judgment until all the evidence
has been presented, does not instruct
the jury as to the weight or effect that
should be given to any aspect of that
evidence -- nor to the presumption of
innocence -- when making their final
judgment.

Id. at 119. Given this precedent, and given the four case-

specific factors we have identified, we find that the

4We note, however, that this entire situation could easily
have been avoided had the judge instructed the jurors, at
the time this issue arose, that the burden of proving the
defendants' guilt always rests with the government.

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remarks made by the district judge did not impermissibly

shift the burden of proof.5

Affirmed.

5The judge below also made a mid-trial "open mind" statement
which is more easily construed as an "instruction." As the
dissent acknowledges, however, no one challenged this
statement at any stage. If we were to review it, then, it
would be under a plain error rubric and Nickens would

directly control.

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STAHL, Circuit Judge, (Dissenting). With respect,
STAHL, Circuit Judge, (Dissenting).

I dissent from the majority opinion because I believe that

the district court's response to the juror misconduct

allegations in this case obliges us to grant defendants a new

trial. With regard to this issue, the majority rests its

affirmance on the well-established rule that district courts

have discretion "to fashion an appropriate and responsible

procedure to determine whether [juror] misconduct actually

occurred and whether it was prejudicial." Ante, at 15

(citing Boylan, 898 F.2d at 258). While I agree that a

district court has broad discretion to determine the nature

of its inquiry into allegations of juror misconduct, I do not

think that that discretion is so broad as to permit a court

to commit errors of constitutional dimension while performing

that inquiry.

Here, the district court, in its effort to assess

whether juror misconduct had occurred, selected a method of

inquiry which had the effect, in my opinion, of shifting the

burden of proof from the government to the defendants.

Moreover, the court's failure properly to instruct the jurors

of the government's burden of proof compounded the error. As

a result, I am of the opinion that the motions for mistrial

should have been granted. For these reasons, I would

reverse.

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This case, in my view, cannot properly be resolved

without a detailed summary of the events surrounding the

court's response to the juror misconduct allegations. I

begin therefore with a recitation of these facts.

When the question of possible juror misconduct

arose, the district judge immediately and correctly commenced

an interrogation of a young woman, the daughter of Juror

Gonzales, who had been seen conversing with a defendant's

girlfriend. During the inquiry, it became apparent to the

court that the daughter and the defendant's girlfriend had

discussed that defendant's innocence. It also became clear

that the daughter had discussed many aspects of the case with

her mother, Juror Gonzales. As a result, the court then

interrogated Ms. Gonzales.

Juror Gonzales admitted that she had engaged in

discussions with her daughter about the case. She denied,

however, having expressed any opinion as to the guilt or

innocence of the defendants, and generally downplayed the

extent and content of the discussions. She also stated that

no juror had indicated an opinion as to the guilt or

innocence of the defendants.

At the conclusion of Juror Gonzales's

interrogation, counsel for defendant Diaz Fernandez and

counsel for defendant Ortiz Cameron moved for a mistrial. In

response, the court first indicated that it did not intend to

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question any of the other jurors. The AUSA requested,

however, that the court reconsider that decision. The court

then indicated that it would take no action on the mistrial

motions that evening but would decide what to do the

following morning. Ortiz Cameron's attorney then, for

unexplained reasons, retracted his motion for mistrial.

The following morning, the court commenced

interrogations of each of the remaining twelve jurors,

beginning with the jury foreman. Counsel took no part in the

formulation of the following four questions:

(1) At this point have you discussed with
the other jurors or with anyone else the
guilt or innocence of the defendants?
(2) Have you discussed with the other
jurors or with anyone the reputation of
the defendants? (3) Have you discussed
with the other jurors or with anyone else
the credibility of the defendants? (4) At
(4) At
this point have you reached a decision
regarding the guilt or innocence of the
defendants?
defendants?

The foreman and eight of the other jurors answered

"no" to all four questions. One of those jurors, Mr. Luis

Carrero Roman, however, answered question three with the

statement: "Well, I can say it is hard for me to say yes or

no because yes, we made comments between us but nothing that

I can say yes or no." Four other jurors (hereinafter

referred to collectively as "the four jurors") while

answering "no" to the first three questions, answered "yes"

to the critical fourth question.

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At this juncture, the Court individually recalled

the four jurors. The court then asked the four jurors one

question, a question which, in my opinion, was seriously

leading. Before asking the question, the court made the

following statement:

As I instructed you before, the guilt or
innocence of the defendants is decided
after listening to all the evidence, to
the final summations of the attorneys and
after applying the instructions as to the
law to be given by me.

The court followed this statement with:

And my question is, would you be able to
keep an open mind and in the course of
your deliberations with your fellow
jurors, re-examine your own views and
change your opinion if convinced it is
erroneous?

Each of the four jurors answered this question in the

affirmative. Juror Luis Carrero Roman, who admitted to

having engaged in discussions with other jurors, was not

recalled. At no time did the court allow counsel to speak or

to propose follow-up questions. Indeed, throughout the

inquiry, the court refused to allow defense counsel to utter

so much as a word.

After the inquiry ended, however, the court

entertained objections. Counsel for Diaz Fernandez objected

both to the length of the court's interrogations and the

leading nature of the revised question. He also pointed out

that some jurors had stated that they either had discussions

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with one another or had already made up their minds. Counsel

then renewed his motion for a mistrial, stressing his belief

that no instruction could cure the problem. Counsel for

defendant Ortiz Cameron then joined the motion for mistrial,

arguing that the presumption of innocence had been

compromised. Counsel for defendant Ortiz Arrigoitia, while

objecting to the court's juror questions, nonetheless did not

join the motion for mistrial.

At that point, the AUSA also expressed concern with

the court's inquiry:

[O]ne thing concerns me, and it is a
point brought up by [defense counsel]
concerning the instructions that have
been given by the Court to the petit jury
to the effect that they should keep an
open mind at all times until the end.
And apparently these four jurors, at
least, have not kept an open mind until
the end of the proceedings.

As a result of these concerns, the AUSA urged the court to

enter specific findings as to the "demeanor" of the four

jurors:

. . . I would ask that the court make[]
findings to the effect that [the four
jurors] appear[ed] to be quite sincere .
. . . The bottom line is, Your Honor,
this is a due process issue, whether
these defendants are being afforded due
process by these jurors, and to that
effect, I believe the Court would have to
enter a finding that yes, they can, they
are willing and able to keep an open mind
and to reach a decision at the end of the
case based upon the evidence and the
instructions given by the court. I would
think it is a close shot, but I think

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there is sufficient information received
by the Court through the questioning to
make a decision.

Immediately thereafter, the court entered the

following statement for the record:

All right. This is a matter of deciding
whether these jurors, especially the four
jurors that we have questioned, are
sincere and will be willing to give these
defendants all due process. And I
believe[,] and I so find[,] that these
jurors are sincere and in the same way
they expressed an opinion that they have
reached a decision as of now, they also
sincerely are able to keep an open mind
and re-examine their own views . . . . I
was impressed by the sincerity of the
answers and the expressions in the face
of each juror when I asked the second
part of the last question . . . .

The court then denied the pending motions for mistrial.

Subsequently, counsel for defendant Pedro Rivera joined the

motions for mistrial.

The court then decided to excuse Juror Gonzales,

whose discussions with her daughter had inspired the entire

inquiry, a decision approved by all counsel. When the jury

reconvened, the court instructed it as follows:

So, I again repeat my instructions to
you, not to form or express an opinion
regarding the guilt or innocence of the
defendant, to keep an open mind. Don't
discuss the case among yourselves or with
anyone else. Keep an open mind.

No one objected to this instruction.

The court's final instructions to the jury

contained the following:

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The indictment or formal charge against
the defendant is not evidence of guilt.
Indeed the defendants are presumed by law
to be innocent. The law does not require
the defendant to prove his innocence or
produce any evidence at all and no
inference whatsoever may be drawn from
the election of the defendant not to
testify.

Under the law a defendant may or may not
testify as he elects since it is up to
the government to prove them guilty
beyond a reasonable doubt as I said
before. The law does not require the
defendant to take the witness stand and
testify and no presumption of guilt may
be raised and no inference of any kind
may be drawn from defendant's failure to
testify.

In addition, the court gave several other

"reasonable doubt" instructions in connection with various

aspects of the case. At no time, however, did it

unequivocally instruct that the burden of proof was always on

the government.6

6. In its initial charge to the jury, the court instructed
on the government's burden as follows:

The indictment or formal charge against
the defendant is not evidence of guilt.
Indeed the defendants are presumed by
law to be innocent. The law does not
require the defendant to prove his
innocence or produce any evidence at all
and no inference whatsoever may be drawn
from the election of a defendant not to
testify.

The government, that is the prosecution
has the burden of providing or proving
them guilty beyond a reasonable doubt and
if he (sic) fails to do so, you must
acquit them. Thus, while the government's

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The majority concludes that the district court

reached a reasonable conclusion about the impartiality of the

jurors and that defendants Ortiz Cameron and Medina Vazquez:

present no compelling evidence to the
contrary and we find nothing in the
record that leads us to believe that the
district court's investigation was
inadequate or his findings clearly
erroneous.

Ante, at 16. Respectfully, my review of that same record

leads me to the opposite conclusion.

When faced with four jurors who admitted that they

had formed an opinion about the guilt or innocence of the

defendants, the district court brought these four jurors into

chambers again and, in my view, structured the "open mind"

question in such a way that "yes" was the only acceptable

response. Before asking the question, the court effectively

admonished the four jurors, reminding them of its instruction

at the beginning of the trial to determine guilt or innocence

only after hearing all of the evidence. One does not need a

degree in psychology to understand the effect that this

statement had on the four jurors' ability to answer this

critical "question" in a calm and uninhibited manner.

At pages 17-19 of the majority opinion, my brethren

offer five reasons why this question did not, in their

burden of proof is a strict or heavy
burden, it is not necessary that the
defendant's guilt be proved beyond all
doubt.

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estimation, shift the burden of proof. I do not think that

any one of these five points sufficiently answers the

problem. With the first four points, I am afraid that my

colleagues have ceded analysis to semantics, and have exalted

form over substance. I cannot join in such an approach,

particularly where, as here, the fundamental right to a fair

trial is at stake.

As to the majority's fifth point - i.e., its

reliance upon Nickens, 955 F.2d at 118-19, for the

proposition that the judge's "open mind" instruction cured

any such shifting of the burden of proof - I am baffled. In

Nickens, we upheld almost identical "open mind" instructions

only after acknowledging that they were problematic. See id.

at 118 (affirming instructions "[w]ithout endorsing their

form"). We were analyzing those instructions to determine

whether they alone had the effect of negating the presumption

of innocence. We reasoned that those instructions "would

[not] normally suggest to the jury that the government's

burden of proving guilt is equal to defendant's burden of

proving innocence." Id. (emphasis supplied). Finding

nothing extraordinary in that case, we concluded that the

instructions were not "so egregious as to constitute plain

error." Id.

Here, however, we are not reviewing this "open

mind" instruction to determine whether it alone had the

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effect of negating the presumption of innocence. Rather, we

must determine whether this otherwise problematic instruction

cured the multi-layered burden of proof problems presented by

this case. I think it obvious that this instruction cannot

and should not be viewed as curative.7 As such, my

colleagues' reference to Nickens as controlling "circuit

precedent" is entirely unpersuasive.

In sum, it is my strong opinion that when he

reconvened the jury, the trial judge had an obligation to

cure any potential misperceptions his colloquy may have left

in the minds of the four jurors on the fundamental question

of who bears the burden of proof. Waiting until the very end

of a lengthy trial to instruct the jury properly on this

question does not alleviate the prejudice.8 Under any
any

standard of review, I think these convictions should be

reversed and that defendants should be granted a new and fair

7. Moreover, I do not think that the court's error should
escape review merely because it entered into the record
specific findings about the "demeanor" and visible
"sincerity" of each of the juror's answers to the question.

8. To bolster its affirmance, the majority refers to the
numerous occasions on which the district court, before the
juror misconduct allegations surfaced, instructed the jury on
the burden of proof. Those instructions are, however,
utterly irrelevant in determining whether the district court,
later in the trial, made statements or gave instructions that
may have negated the presumption of innocence.

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trial.9 Any other result denies these defendants a "`basic

protection'" afforded by the Constitution, a protection which

reflects "`a profound judgment about the way in which law

should be enforced and justice administered.'" Sullivan v.

9. I further note that the majority opinion does not
adequately address the district court's failure to inquire
into Juror Luis Carrero Roman's admission that members of the
jury had, in fact, conversed about the case. As we made
clear in United States v. Richman, 600 F.2d 286, 295 (1st

Cir. 1979), a trial court should conduct the following four-
part inquiry when faced with allegations that jurors may have
acted improperly:

[1] ascertain whether the misconduct
actually occurred; [2] if it did,
determine whether it was prejudicial; [3]
if not clearly unprejudicial, grant a new
trial; [and] [4] specify reasons if the
court determines either that the
misconduct did not take place or was not
clearly prejudicial.

Id. (citing United States v. Doe, 513 F.2d 709, 711-12 (1st

Cir. 1975)). Here, after learning from Juror Carrero that
members of the jury had discussed the case, the district
court failed to inquire further and refused to allow defense
counsel to interject follow-up questions. As a result, the
record contains no evidence about what types of discussions

Juror Carrero may have had with other jurors, or may have
overheard. We are left to speculate. In light of all the
circumstances, I consider this error an alternative grounds
for reversal.
Furthermore, I cannot agree with the majority's cavalier
conclusion that "the judge essentially conducted a full-
fledged inquiry when he asked the other jurors questions
which would have revealed precisely the impropriety which
Judge Stahl fears." Ante, at 16 n.2. First the record

contains no such "full-fledged inquiry"; and, second, any
inquiry of "the other jurors" could not possibly have
revealed anything about what Juror Carrero did or did not
know about the putative juror misconduct. It appears,
therefore, that the once strict requirements of Richman have

been relaxed to such an extent that a district court now has
discretion, according to the majority, to conduct essentially
no inquiry at all.

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Louisiana, No. 92-5129, 1993 WL 179275, at *4 (U.S. June 1,

1993) (quoting Duncan v, Louisiana, 391 U.S. 145, 155

(1968)). I therefore dissent.

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