UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8611
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN ARON SANCHEZ-SOTELO, JOSE RABELO RENTERIA, and RICARDO
GARCIA,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
(November 16, 1993)
Before SNEED1, REYNALDO G. GARZA and JOLLY, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Juan Aron Sanchez-Sotelo, Jose Rabelo Renteria, and Ricardo
Garcia appeal their convictions for conspiracy to possess cocaine
and possession of cocaine with intent to distribute. We AFFIRM the
district court in all respects, except we VACATE the order denying
the appellants' motion for new trial based on extraneous jury
influence and REMAND the cause for further proceedings.
I. FACTS
1
Senior Circuit Judge of the Ninth Circuit, sitting by
designation.
This case arises from an undercover narcotics sting operation
in El Paso, Texas. Sergio Filemon Sotelo Sanchez ("Filemon"), the
key person in the criminal conspiracy, pled guilty and is not a
party to this appeal. The appellants are Filemon's brother, Juan
Aron Sotelo Sanchez ("Sotelo"); Jose Renteria; and Ricardo Garcia.
On November 13, 1991, an undercover law enforcement agent met
with Filemon, purchased a one-half ounce sample of cocaine from
him, and agreed to meet with him later that day in the parking lot
of a toy store to purchase another half-ounce. After the initial
purchase, law enforcement agents tracked Filemon as he drove to
several places including the apartment of his brother Sotelo's
girlfriend. The meeting between the undercover agent and Filemon
was delayed for two hours because, according to Filemon, Sotelo
"had sent the guy that takes care of the stash house on an errand."
At the meeting, the undercover agent purchased another one-half
ounce sample and agreed to purchase a much larger quantity of
cocaine after she obtained the money to do so. After this meeting,
Filemon drove to his house on Mockingbird Street. The trial
testimony conflicts as to whether Sotelo lived at the house on
Mockingbird Street with his brother, Filemon.
On November 21, the undercover agent met with Filemon in the
same toy store parking lot and agreed to exchange one kilogram of
cocaine later that day for $14,500 (the "one-kilo exchange").
Filemon then drove in a maroon pickup truck to a house on Rubicon
Street where he picked up his brother, Sotelo. The two men drove
-2-
to a gas station and met with several other men who arrived in a
gray pickup truck. After this meeting, Filemon and Sotelo drove
back to the toy store parking lot.
A few hours later, the undercover agent returned to the
parking lot where Filemon and Sotelo were waiting in the maroon
truck to consummate the one-kilo exchange. Filemon got out of the
truck, leaving Sotelo in the passenger side, and entered the
undercover agent's truck. In the recorded conversation that
followed, Filemon told the undercover agent to retrieve the
kilogram of cocaine from an empty Chevrolet Cavalier in the parking
lot. After retrieving the cocaine, the undercover agent handed
Filemon an envelope containing $14,500. Filemon agreed to meet
later that day in the same parking lot to exchange a larger
quantity of cocaine (the "four-kilo exchange").
After the one-kilo exchange, Filemon and Sotelo drove to a
pool hall where they met with appellant, Garcia. The three men
then went to a motel where they were later met by two other men who
arrived in a blue pickup truck driven by appellant, Renteria.
After the men conversed, Filemon, Sotelo and Garcia drove away in
Filemon's maroon truck. Renteria drove away alone in the blue
truck. Both trucks arrived at the toy store parking lot where
Garcia entered the Cavalier that Filemon used in the earlier one-
kilo exchange. Garcia then drove the Cavalier around the parking
lot, parking for a short period of time, and then driving around
the parking lot again. Simultaneously, Filemon in the maroon truck
-3-
and Renteria in the blue truck drove around the parking lot in a
manner that suggested they were searching for signs of law
enforcement personnel. After a short meeting between the two
trucks, Filemon drove to a gas station across the street and called
the undercover agent regarding the planned exchange.
The undercover agent arrived at the parking lot at 5:15 p.m.
to consummate the four-kilo exchange. The agent parked near
Filemon's maroon truck. Filemon left Sotelo in the maroon truck
and entered the undercover agent's car where he explained, in a
recorded statement, that they were "waiting for the delivery of the
cocaine." Filemon offered to have Sotelo drive the maroon truck
close to the undercover agent's car in order to hand the drugs from
the truck to the car, but abandoned this method of exchange at the
agent's request. As Garcia drove the Cavalier by the undercover
agent's car, Filemon stated that the car was driven by one his
"business partners." The gray pickup truck then arrived in the
parking lot and parked next to the maroon truck that Sotelo was
sitting in. Filemon exited the undercover agent's car, and Sotelo
exited the maroon pickup, and then Filemon met with the driver of
the gray truck. Afterwards, Filemon took a toolbox from the gray
truck and brought it to the undercover agent's car. Agents closed
in and arrested Filemon, Sotelo, Renteria and, after a high speed
-4-
chase, Garcia.2 Others were also arrested, but they are not
parties to this appeal.
II. PROCEDURAL HISTORY
The appellants were charged with two counts of federal
narcotics violations. The first count charged the appellants with
conspiracy to possess cocaine with intent to distribute, in
violation of 21 U.S.C. sections 841(a)(1) and 846. The second
count charged the appellants with possession of cocaine with intent
to distribute, in violation of 21 U.S.C. section 841(a)(1).
The case went to trial on July 20, 1992 and on July 22, 1992,
the jury convicted Sotelo and Garcia on both counts. The jury
convicted Renteria on count one, but acquitted him on count two.
On December 1, 1992, Garcia was sentenced to 136 months of
imprisonment and to a five-year term of supervised release. Garcia
was also ordered to pay $100 for special assessments. Renteria was
sentenced to 121 months of imprisonment and to a five-year term of
supervised release; he was also specially assessed $50. Sotelo was
sentenced to concurrent 151-month terms of imprisonment on each
count and to a five-year term of supervised release. Sotelo was
also specially assessed $100.
After the trial, defense counsel made two motions for a new
trial. First, defense counsel asked for a new trial based on the
2
Agents found two pounds of marijuana in the Cavalier after
the car stalled and they arrested Garcia. No cocaine, however,
was found in the car.
-5-
affidavit of a trial juror that the jury had been exposed to an
improper extraneous influence that tainted the verdict. The juror
attested that another "juror drove by the residence of one
defendant who lived on Mockingbird [Street], and complained during
deliberations that the defendants must be drug dealers, otherwise
they couldn't afford to live in houses like the one on Mockingbird
[Street]."
Garcia moved for a new trial on the basis of ineffective
assistance of counsel. He asserted that his lawyer failed to call
certain prisoners who overheard Filemon state that Garcia was not
involved in the conspiracy. In a recorded conversation, his lawyer
stated that he did not call the witnesses because the government
could have rebutted with the confession of Garcia's co-defendants.
The district court denied both motions without an evidentiary
hearing. The district court denied the motion regarding extraneous
influence because it stated that the house on Mockingbird Street
belonged to Filemon who pled guilty and was not tried with the
defendants. Accordingly, the district court viewed the information
as not material to the guilt or innocence of the defendants and not
possibly prejudicial to the defendants. The district court denied
the motion regarding ineffective assistance of counsel because it
viewed the claim as "border[ing] on the frivolous" and because even
if proffered, the claim would have been inadmissible as "pure
hearsay."
-6-
Appellants filed for reconsideration of the district court's
order. Appellants attached a supplemental affidavit in which the
juror stated that the jurors assumed that the house on Mockingbird
Street belonged to one of the defendants on trial, but not
necessarily Filemon. The district court denied the motion for
reconsideration without a hearing because the allegations related
to the mental processes of the jurors and were not admissible under
Federal Rule of Evidence 606(b).
III. DISCUSSION
The appellants claim the district court erred in: (1) finding
sufficient evidence to support their convictions for conspiracy to
possess cocaine and possession of cocaine with intent to
distribute; (2) allowing an undercover agent to comment on her
tape-recorded conversations referencing Sotelo; (3) not declaring
a mistrial with respect to the prosecutor's closing remarks; (4)
not defining "knowingly" or "intent" in its jury charge; and (5)
denying their motion for new trial based on evidence of an
extraneous influence on the jury.
Garcia also claims that the district court erred in denying
his motion for new trial based on ineffective assistance of
counsel.
The district court did not err in: (1) finding sufficient
evidence to support the appellants' convictions for conspiracy and
possession with intent to distribute; (2) allowing the undercover
agent to comment on her tape-recorded conversations; (3) refusing
-7-
to declare a mistrial; (4) declining to define "knowingly" and
"intent"; and (5) denying all of the appellants' motions for
mistrial. Finding no error, we AFFIRM.
A. Sufficiency of the evidence
Appellant Sotelo asserts that there was insufficient evidence
to support his conviction for the possession of cocaine with the
intent to distribute. Appellant Renteria asserts that there was
insufficient evidence to convict him of conspiracy with intent to
distribute cocaine. Appellant Garcia asserts that there was
insufficient evidence to convict him of either conspiracy to
possess cocaine or possession of cocaine with intent to distribute.
We review the appellants' claims under the well established
standard that the Court view the evidence, "whether direct or
circumstantial, and all the inferences reasonably drawn from it, in
the light most favorable to the verdict." U.S. v. Salazar, 958 F.2d
1285, 1991 (5th Cir.), cert. denied, ___U.S.___, 113 S.Ct. 185
(1992). "The ultimate test for the sufficiency of the evidence
challenges is whether a reasonable jury could find that the
evidence establishes guilt beyond a reasonable doubt." Id. (citing
United States v. Gonzales, 866 F.2d 781 (5th Cir.), cert. denied,
490 U.S. 1093, (1989)).
As to the substantive offense of possession, " the government
must prove beyond a reasonable doubt that the defendants knowingly
possessed [cocaine] and intended to distribute it. Possession may
be actual or constructive, may be joint among several defendants,
-8-
and may be proved by direct or circumstantial evidence." U.S. v.
Valdiosera-Godinez, 932 F.2d 1093, 1095 (5th Cir. 1991) (citing
United States v. Gardera Carrasco, 830 F.2d 41, 45 (5th Cir. 1987),
cert. denied, ___U.S.___, 113 S.Ct. 2369 (1993). With regard to
the conspiracy offense,
the government must prove beyond a reasonable doubt: (1)
the existence of an agreement between two or more persons
to violate the narcotics laws; (2) the defendant knew of
the conspiracy; and (3) the defendant voluntarily
participated in the conspiracy. . . . No element need be
proved by direct evidence, but may be inferred from
circumstantial evidence. An agreement may be inferred
from "concert of action."
Id. (citing United States v. Arzola-Amaya, 867 F.2d 1504, 1511 (5th
Cir.), cert. denied, ___U.S.___, 110 S.Ct. 322 (1989)).
1. Appellant Sotelo
Sotelo argues that insufficient evidence exists to
convict him for possession of cocaine. Since the district court
did not instruct the jury that Sotelo could be held liable for the
foreseeable acts of his co-conspirators, proof of the conspiracy
alone will not sustain the possession charge against Sotelo. United
States v. Pierce, 893 F.2d 669, 676 (5th Cir 1990) (requiring
Pinkerton instruction before defendant could be convicted of object
crime committed by co-conspirators). Furthermore, no evidence
exists that Sotelo actually possessed the cocaine. Therefore, the
Government's possession case against Sotelo requires that a jury
could have found beyond a reasonable doubt that Sotelo
constructively possessed the cocaine. "`Constructive possession'
-9-
is ownership, dominion, or control over illegal drugs or dominion
over the premises where drugs are found." United States v. Pigrum,
922 F.2d 249, 255 (5th Cir.), cert. denied sub nom., Allen v.
United States, 111 S. Ct. 2064 (1991).
Sotelo argues that his brother's statement to undercover agent
Rodriguez that their meeting was delayed for two hours because
Sotelo "had sent the guy that takes care of the stash house on an
errand," is insufficient to prove his constructive possession of
the cocaine. Sotelo further argues that even if his brother's
statement is true, the fact that he sent the man on an errand does
not show that he had control over the stash house or its contents.
See Id. (holding that where the evidence was insufficient to show
that defendant resided at house, her presence during search where
drugs were found was insufficient to show constructive possession).
Finally, Sotelo argues that in this case, no drugs were found at
the "stash house."
Although each piece of evidence may not be sufficient in
isolation to reasonably find constructive possession, the
cumulative evidence against Sotelo is compelling. First, the
evidence regarding Filemon's and Sotelo's "hand[ling]" of the
majority of the ongoing drug business showed that Sotelo was
heavily involved in the control of their cocaine exchanges
generally. Second, Sotelo's presence at the planning and execution
stages with Filemon showed his participation in the specific
cocaine deals here at issue. Third, Sotelo's sending the person
-10-
who controlled the stash house on an errand shows that he had some
control over the person who kept the specific cocaine used in at
least one of the drug deals here at issue. Finally, the evidence
at trial showed that although not generally available to handle the
cocaine, Sotelo was, on this occasion, available to help deliver
possession of the cocaine to the undercover agent via a drive-by
exchange. We hold that this evidence, in the aggregate, would
allow a reasonable juror to find that Sotelo had dominion and
control over the cocaine--constructive possession.
Our review of the record, therefore, indicates that sufficient
evidence exists to affirm Sotelo's conviction for possession of
cocaine with intent to distribute.
2. Appellant Renteria
Appellant Renteria argues that there was insufficient evidence
to convict him of conspiracy to distribute cocaine. Renteria
argues that the only evidence implicating him was: (a) a Deputy
Sheriff's identification of him at a brief meeting with Sotelo,
Juan Sanchez and Garcia at the La Quinta motel; and (b) that he
parked his blue truck next to Sotelo's maroon pickup in the toy
store parking lot, and then drove to the center of the parking lot.
Renteria also argues that although there was some circumstantial
evidence connecting him to the conspiracy, "the critical missing
element of proof is some adequate indication that [he] was ever
aware of the existence of the conspiracy or intentionally joined
-11-
it." See United States v. Basey, 816 F.2d 980, 1002-03 (5th Cir.
1987).
We find that the evidence establishes that Renteria met with
Filemon, Sotelo, and Garcia in a motel room prior to the four-kilo
exchange. Renteria then followed Filemon and Sotelo back to the
toy store parking lot. In the parking lot, Renteria parked his
blue truck beside Filemon's maroon truck and met with Filemon.
Renteria then parked his truck in another part of the parking lot
and waited in his truck for one hour until the exchange took place.
During that time he acted as if he were a look-out.
Based on this evidence, a reasonable jury could determine
beyond a reasonable doubt that Renteria participated in the
conspiracy. See United States v. Fernandez-Roque, 703 F.2d 808,
814-15 (5th Cir. 1983) (conspiracy only requires that the defendant
was aware of the unlawful agreement and was associated somehow with
the plan).
Our review of the record, therefore, indicates that sufficient
evidence exists to affirm Renteria's conspiracy conviction.
3. Appellant Garcia
Garcia argues that the evidence was insufficient to prove
beyond a reasonable doubt that he knew of and voluntarily
participated in the conspiracy to distribute cocaine or that he
constructively possessed cocaine. First, Garcia argues that the
only evidence that he was a conspirator was that the Cavalier used
in the one-kilo exchange was registered to his girlfriend, that he
-12-
drove the Cavalier around the parking lot before the four-kilo
exchange, and that Filemon referred to him as a "business partner."
Garcia argues that although this may constitute association and
presence at the scene of the four-kilo exchange, it does not prove
beyond a reasonable doubt that he knew of and participated in the
conspiracy to possess cocaine. See United States v. Maltos, 985
F.2d 743, 746-47 (5th Cir. 1992). Second, Garcia argues that there
is no evidence that he actually possessed cocaine, and that the
evidence with respect to constructive possession is too speculative
to support a conviction. Garcia argues that he entered the
Cavalier after the one-kilo exchange, and that no cocaine was found
in the car after the exchange.
Garcia correctly points out that since the district court did
not give a Pinkerton instruction, the jury could not use the
possession of cocaine by other conspirators to convict him. His
possession conviction, therefore, rests on evidence of constructive
possession.
Based on the circumstantial evidence of Filemon calling Garcia
his "business partner," Garcia's meetings with Filemon after the
one-kilo exchange and before the four-kilo exchange, Garcia's
riding in the maroon truck with Filemon and Sotelo to the toy store
parking lot, his driving of the Cavalier around the parking lot,
and his high speed flight from the arrest scene, a reasonable jury
could determine beyond a reasonable doubt that Garcia knew of and
-13-
joined in the conspiracy, and that he had constructive possession
of the cocaine.
Our review of the record, therefore, indicates that sufficient
evidence exists to affirm Garcia's conviction for conspiracy and
possession.
B. Undercover agent's testimony
Appellant Sotelo argues that the district court erred in
allowing the undercover agent's testimony regarding her recorded
conversations with Filemon, because this testimony constituted
improper lay opinion testimony that tainted his conviction for
conspiracy to possess cocaine.
We review evidentiary errors at trial for abuse of discretion.
United States v. Lindell, 881 F.2d 1313, 1319 (5th Cir. 1989),
cert. denied, 496 U.S. 926, 110 S.Ct. 2621, 110 L.Ed.2d 642 (1990).
Although the government argues for the plain error standard, the
other defense counsel's objection3 is sufficient to invoke the
abuse of direction standard for Sotelo. See Howard v. Gonzales, 658
F.2d 352, 355 (5th Cir. Unit A 1983) (stating that where one party
objects, the court presumes the other parties have joined in the
objection). In addition, to reverse a conviction, this court must
find "a significant possibility that the testimony had a
substantial impact on the jury." United States v. Cain, 587 F.2d
678, 682 (5th Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1543, 59
3
Defense counsel for Fred Smalley.
-14-
L.Ed.2d 793 (1979). During the trial, the prosecution
submitted the transcript of a recording of one of the meetings
between Filemon and the undercover agent. The transcripts related
that the undercover agent asked Filemon who was in the maroon truck
with him. Filemon answered, "[T]he guy that's with me is my
brother." The undercover agent testified that the above statement
meant Sotelo "would stay in the truck and would be watching the
whole thing." At a later meeting, the undercover agent asked
Filemon who was with him, and Filemon answered, "My brother." The
undercover agent testified that the above statement meant that
Filemon "and his brother [,Sotelo,] were going to do the deal."
Sotelo contends that the district court admitted the
undercover agent's testimony in violation of Federal Rule of
Evidence 701, which prohibits explanatory commentary where the
language of the conversation would allow the jury to draw its own
conclusions. See United States v. Dicker, 853 F.2d 1103, 1108-11
(3d Cir. 1988) (holding that Rule 701 should be applied in a manner
that allows "the jury to draw its own conclusions" from the
language of the conversation itself and that "additional analysis
was irrelevant and should not be admitted"). Sotelo contends that
the jury had transcripts of the tape-recorded conversations and
that the undercover agent's testimony went beyond the meaning of
the transcripts.
We find that the undercover agent's testimony goes beyond the
plain meaning of the recorded conversation with Filemon. Hence, we
-15-
must determine whether there is a "significant possibility" that
the district court's admission of this testimony had a "substantial
impact on the jury." United States v. Cain, 587 F.2d at 682. Based
on the evidence outlined above, the jury could have inferred, from
evidence other than the undercover agent's interpretations, that
Sotelo was knowingly involved in the cocaine conspiracy.
Therefore, we find that the district court did not abuse its
discretion in admitting the undercover agent's testimony.
C. Prosecutor's closing remarks
During closing remarks, the government asked the jury to "send
a message to these drug dealers," to "send a message to other drug
dealers," and to deter drug dealers from bringing "these drugs into
our communities and into our homes." The government further
pointed the jury's attention to the fact that the drug deal took
place in the parking lot of a toy store and stated that "[w]omen,
children, [and] parents" were in the parking lot. At this point,
defense counsel objected to the government's reference to "women
and children." The district court sustained the objection and
instructed the jury to disregard the comment.
Appellants argue that the government's closing remarks
constitute reversible error for three reasons. First, the comments
had a prejudicial effect because they influenced the jury to
convict the appellants based on a broad policy against drugs rather
than on specific evidence of guilt. A juror's affidavit attests
that another juror stated during deliberations that the jury should
-16-
convict the appellants in order to "send a message to the
community." Second, the court gave no cautionary instruction to
the jury to curtail the prejudicial effect of the comments. Third,
because the evidence of guilt was "extremely thin," the comments
harmed the appellants in the jury's determination of guilt. See
United States v. Lowenberg, 853 F.2d 295, 301-02 (5th Cir. 1988),
cert. denied, 489 U.S. 1032, 109 S.Ct. 103 L.Ed.2d 228 .
Because the appellants objected to the "women, children, [and]
parents" comments, this court reviews the district court's refusal
to grant a mistrial with respect to these comments for abuse of
discretion. United States v. Rocha, 916 F.2d 219, 234 (5th Cir.
1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2037, 114 L.Ed.2d 462
(1991). However, because the appellants did not object to the
government's "send a message" comments, this court reviews the
district court's refusal to grant a mistrial with respect to those
comments under the plain error standard. United States v. Robles-
Pantoja, 887 F.2d 1250, 1255 (5th Cir. 1989). In determining
whether the jury would have found the appellants guilty without the
government's comments, this court must look at three factors: (1)
the magnitude of the prejudicial effect of the comments; (2) the
efficacy of any cautionary instructions; and (3) the strength of
the evidence of the appellants' guilt. Lowenberg, 853 F.2d at 301-
02.
First, a prosecutor may appeal to the jury to act as the
conscience of the community. United States v. Brown, 887 F.2d 537,
-17-
542 (5th Cir. 1989). Second, the district court's instruction to
the jury to disregard the "women, children, [and] parents" comments
sufficiently curtailed the prejudicial effect of those comments.
See United States v. Garza, 887 F.2d 55, 57 (5th Cir.), cert.
denied, 495 U.S. 957 (1990). Third, because of the ample evidence
produced at trial, the "send a message" comments does not cast
serious doubt on the propriety of the jury's verdict.
Accordingly, the district court did not abuse its discretion
or commit plain error by refusing to grant a mistrial with respect
to the prosecutor's closing remarks.
D. Jury charge
The appellants argue that the district court committed
reversible error by not defining "knowingly" or "intent" with
respect to both the conspiracy charge and the possession charge.
They argue that this failure was critical because the central issue
in the their case was whether they "knowingly" participated in the
conspiracy, and "knowingly" possessed the cocaine with the intent
to distribute the drug. United States v. Ojebode, 957 F.2d 1218,
1228 (5th Cir. 1992), cert. denied, 113 S.Ct. 1291, 122 L.Ed.2d 683
(1993).
Because one appellant objected to the district court's failure
to give an extra instruction defining "knowingly" and "intent,"
this court reviews the instructions under the abuse of
discretion standard. See United States v. Bernal, 814 F.2d 175,
182 & n.14 (5th Cir. 1987). Furthermore, in deciding whether the
-18-
district court abused its discretion, this court determines whether
the requested instruction: (1) was a correct statement of the law;
(2) was substantially given in the charge as a whole; and (3)
concerned an important point in the trial so that the failure to
give it seriously impaired the defendant's ability to effectively
present a defense. United States v. Rochester, 898 F.2d 971, 978
(5th Cir 1990).
As the Government points out, the district court used the
pattern jury instructions for criminal cases. Pattern Jury
Instructions, Criminal Cases, Special Instruction 2.81 at 192
(1990). Furthermore, these instructions accurately reflect the law
of sections 846 and 841(a)(1). Finally, "knowingly" and "intent"
are used in their common meaning in the conspiracy and possession
statutes and, therefore, do not require further instruction.
United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988).
Consequently, the district court did not abuse its discretion
by refusing to define "knowingly" or "intent," in its jury charge.
E. Motions for New Trial
1. Extraneous influence
Appellants argue that the district court erred in denying
their motion for new trial without an evidentiary hearing, based on
evidence of prejudicial extraneous information. This court reviews
the denial of a motion for new trial for abuse of discretion.
United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991), cert.
-19-
denied sub nom., Garza v. U.S., ___U.S.___, 112 S.Ct. 2966 (1992).
The appellants argue that the juror's affidavits attesting the
material and prejudicial impact of another juror's comments
regarding the defendants' ability to afford the house on
Mockingbird Street was error that at least requires remand for an
evidentiary hearing to determine if this extrinsic evidence was
actually prejudicial to the appellants. The appellants further
argue that Fifth Circuit case law requires an evidentiary hearing
to investigate a colorable claim of prejudicial extrinsic jury
influence. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.),
cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979);
United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975).
"Post-verdict inquiries into the existence of impermissible
extraneous influences on a jury's deliberations are allowed under
appropriate circumstances, . . . so that a `jury-man may testify to
any facts bearing upon the existence of any extraneous influence,
although not as to how far that influence operated upon his mind.'"
Llewellyn v. Stynchcombe, 609 F.2d 194 (1980) (emphasis in
original). Furthermore, this court has stated:
Where a colorable showing of extrinsic influence appears,
a court must investigate the asserted impropriety:
the evidentiary inquiry before the district court . . .
must be limited to objective demonstration of extrinsic
factual matter disclosed in the jury room. Having
determined the precise quality of the jury breach, if
any, the district court must then determine whether there
was a reasonable possibility that the breach was
prejudicial to the defendant.... In this determination,
-20-
prejudice is assumed in the form of a rebuttable
presumption, and the burden is on the Government to
demonstrate the harmlessness of any breach to the
defendant.
Winkle, 587 F.2d at 714 (quoting Howard, 506 F.2d at 869).
The appellants correctly point out that Howard and Winkle
require an investigation into the alleged jury breach before the
district court may deny a motion for new trial in this situation.
In United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991), this
court held that the district court did not abuse its discretion in
finding that a juror's report of a drive-by viewing of a
defendant's house was not prejudicial4. In Ortiz, the district
court made its determination only after it conducted an in camera
interview with the jury foreperson, one of three jurors who
submitted an affidavit and a juror chosen at random. In this case,
however, the district court made no such investigation.
Therefore, the order denying the appellants' motion for new
trial based on extraneous jury influence is vacated and the cause
is remanded for further proceedings consistent with this opinion.
2. Ineffective assistance of counsel
With respect to Garcia's ineffective assistance of counsel
claim, he argues that the district court erroneously determined
that testimony by inmates regarding Filemon's alleged statement
4
The juror commented that she had driven by the defendants'
apartment complex during the course of the trial and that "they
appeared to be very expensive condominiums not cheap apartments
and where was the money coming from to pay for these very
expensive condos." Ortiz, 942 F.2d at 913.
-21-
that Garcia was not involved in the conspiracy was inadmissible as
hearsay. Garcia argues that the statement was either admissible as
a declaration against interest under Federal Rule of Evidence
804(b)(3) or under the residual hearsay exception of Rule
804(b)(5). See United States v. Thomas, 571 F.2d 285 (5th Cir.
1978). Garcia further argues that his attorney's failure to call
the exculpatory inmate witnesses because the attorney thought the
government would respond with post-arrest statements by Garcia's
co-defendants was facially incorrect under the Bruton rule. See
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d
476 (1968) (requiring exclusion of codefendant's confession that
implicates a defendant unless the codefendant takes the stand and
submits to cross-examination).
United States v. Briscoe, 742 F.2d 842, 846 (5th Cir. 1984),
imposes three requirements for the use of the hearsay exception of
Rule 804: "(1) the declarant must be unavailable; (2) the
statement must be against the declarant's penal interest; and (3)
corroborating circumstances must indicate the trustworthiness of
the statement." The inmates' testimony regarding Filemon's
statement does not qualify for the Rule 804(b)(3) exception to the
hearsay rule for two reasons. First, the declarant, Filemon, was
available to be cross-examined. Second, there were no
corroborating circumstances, because the statement was allegedly
overheard in prison. See Thomas, 571 F.2d 285. Furthermore, other
evidence of Garcia's guilt indicates that any error made by
-22-
Garcia's counsel was harmless under Strickland v. Washington, 466
U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Therefore, the district court did not abuse its discretion in
denying Garcia's motion for new trial.
IV. CONCLUSION
We affirm the district court in all respects except we vacate
the order denying the appellants' motion for new trial based on
extraneous jury influence, and remand the cause to the district
court for further proceedings.
AFFIRMED in part, VACATED and REMANDED.
-23-