NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 15 2017
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-50103
Plaintiff-Appellee, D.C. No.
3:15-cr-01883-AJB-1
v.
ANN KATHERINE HUNTER, MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted May 10, 2017**
Pasadena, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and RICE,*** Chief District
Judge.
Ann Hunter walked out of a halfway house where she was serving the end of
a five-year federal prison term. She was later found and charged with willful
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
escape from federal custody under 18 U.S.C. §§ 751(a) and 4082(a). She was
convicted after a one-day jury trial and was sentenced to a twenty-one month
custodial sentence. She appeals her conviction and sentence.
Hunter was released on March 28, 2017. The completion of her sentence
moots her appeal of that sentence, but not the appeal of her conviction. See
Spencer v. Kemna, 523 U.S. 1, 7 (1998); United States v. Gomez-Gonzalez, 295
F.3d 990 (9th Cir. 2002) (order). We affirm the conviction and dismiss the appeal
of her now-concluded sentence.
Hunter challenges her conviction on the basis of the Sixth Amendment; she
argues that she was deprived of a fair trial because of the trial court’s handling of a
juror who had independent knowledge of the halfway house in question. After the
jury had deliberated for about an hour, it informed the district court in a note that
one of its members lived near the halfway house. The same juror had also been a
bus driver on a nearby route ten years earlier and had met and spoken with
residents of the halfway house, but not Hunter. Outside the presence of the other
jurors, the juror assured the district court that he would consider the evidence fairly
and would favor neither Hunter nor the Government. Then, with the whole jury
present, the district court instructed the other jurors to consider only the evidence
introduced at trial and any inferences they could draw from that evidence. The
jurors assured the court that they could and would do so. The court denied
2
Hunter’s motion for a mistrial. After about ten minutes of further deliberations, the
jury returned a guilty verdict.
Hunter argues that the district court’s procedure intruded impermissibly into
the jury’s deliberations.1 We review for an abuse of discretion. See, e.g., United
States v. Martinez-Martinez, 369 F.3d 1076, 1082 (9th Cir. 2004); United States v.
Romero-Avila, 210 F.3d 1017, 1024 (9th Cir. 2000). Because the jury’s note
suggested the possibility of juror bias and the introduction of extrinsic evidence,
the district court was correct to investigate. See, e.g., Dyer v. Calderon, 151 F.3d
970, 974 (9th Cir. 1998) (en banc) (“A court confronted with a colorable claim of
juror bias must undertake an investigation of the relevant facts and
circumstances.”). The approach the court took in that investigation was also
appropriate. See United States v. Mills, 280 F.3d 915, 921-22 (9th Cir. 2002)
(affirming a similar procedure in response to a similar note).
Hunter also argues that the district court’s questions and instructions coerced
a verdict by discouraging the juror who had been a bus driver from discussing the
evidence. “Whether a judge has improperly coerced a jury’s verdict is a mixed
question of law and fact” and is reviewed de novo. United States v. Berger, 473
F.3d 1080, 1089 (9th Cir. 2007). “We consider whether the court’s actions and
1
She does not argue on appeal, however, that she was denied a fair trial on account
of juror bias or the introduction of extrinsic evidence.
3
statements were coercive in the totality of the circumstances.” Jiminez v. Myers,
40 F.3d 976, 980 (9th Cir. 1993) (per curiam). In specific, we consider “(1) the
form of the instruction, (2) the time the jury deliberated after receiving [the
instruction] in relation to the total time of deliberation and (3) any other indicia of
coerciveness.” Berger, 473 F.3d at 1090 (9th Cir. 2007) (quoting United States v.
Steele, 298 F.3d 906, 911 (9th Cir. 2002)). The district court’s questions and
instructions were not coercive here. No evidence in the record suggested an
impasse or even a division within the jury,2 and the district court’s questions and
instructions advised deliberation in due course, not consensus. Although the jury
reached a verdict within about ten minutes of the challenged instructions and
2
The same juror who had been a bus driver near the halfway house later sent a
letter to the district court in support of Hunter at sentencing. He said that he had
initially been a hold-out but felt compelled to vote “guilty” after hearing the district
court’s questions and instructions. Hunter does not and cannot rely on this letter to
challenge her conviction. See Fed. R. Evid. 606(b) (“During an inquiry into the
validity of a verdict . . . , a juror may not testify about . . . the effect of anything on
that juror’s or another juror’s vote . . . . The court may not receive a juror’s
affidavit or evidence of a juror’s statement on these matters.”); United States v.
Montes, 628 F.3d 1183, 1188 (9th Cir. 2011) (“Upon an inquiry into the validity of
a verdict, a trial court and a court of appeals may consider only evidence
admissible under Federal Rule of Evidence 606(b).”). Because Hunter relies on
the letter only in support of her challenge to her sentence, which is moot, we deny
the Government’s motion to strike the letter from the appellate record as moot.
4
questions, this timeline does not show coercion if it is considered “in relation to the
total time of deliberation,” id., which here was a little longer than one hour.
AFFIRMED in part and DISMISSED in part.
5