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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14737
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20288-DLG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
BRAULIO MARTINEZ,
a.k.a. Simplicio,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 23, 2012)
Before CARNES, HULL and EDMONDSON, Circuit Judges.
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PER CURIAM:
Defendant Braulio Martinez appeals his convictions for conspiracy to
possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 841(a)(1). After review, we affirm.
I. BACKGROUND
Defendant Martinez’s convictions stem from an investigation of a cocaine
importation-and-distribution operation centered in Miami-Dade County, Florida.
On April 19, 2011, a grand jury indicted Defendant Martinez on these two counts:
(1) conspiracy to possess with intent to distribute 5 kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and (2) possession with intent to
distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1).
The conspiracy count alleged that Martinez had conspired with Joaquin Adolfo
Reigosa, Cesar Ernesto Gonzalez, and others who were “known and unknown to
the Grand Jury.”
Martinez pled not guilty. However, Gonzalez and another co-conspirator,
Jose Reigosa, pled guilty, cooperated with the government, and testified at
Martinez’s trial.
A. Trial Evidence
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Gonzalez testified that, in 2006, he began to sell cocaine with his uncle
Joaquin Reigosa. One of their customers was Defendant Martinez. When the
government asked how Gonzalez knew Martinez, Gonzalez responded, “I met him
through my uncle, Jose Reigosa. I met him, I would say, around 2002–2003, that
he was working with Jose and they would sell ounces of cocaine.”
Defendant Martinez objected to this testimony as improper character
evidence under Federal Rule of Evidence 404(b). Martinez also requested a
curative instruction and moved for a mistrial. At sidebar, the government
conceded the testimony did not involve acts that were part of the conspiracy in this
indictment. The district court sustained Martinez’s objection, denied his motion
for a mistrial, and gave this curative instruction:
The defendant is on trial for the matters that are listed in the indictment,
and you’re going to have a copy of that. This case doesn’t relate to any
other matters or any other transactions. So to the extent the witness
testified about some other matters, you are advised strictly to disregard,
do not consider, it’s not a part of this case.
As to this conspiracy, Gonzalez then testified that (1) on November 20,
2009, he delivered 4 kilograms of cocaine to Defendant Martinez, and (2) from
2006 to 2009, he sold Martinez an average of 15 to 20 kilograms of cocaine per
month.
Jose Reigosa testified that, in 2004, he began selling cocaine with his
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brother Joaquin. Jose stated that he had delivered “drugs” to Martinez. According
to Jose, Martinez had also purchased kilograms of cocaine from Joaquin.
B. Jury Deliberations and Verdict
After both parties rested, the district court instructed the jury. As part of its
charge, the court reinforced that (1) the jury’s decision must be based on only the
evidence presented at trial; (2) the jury “must follow the law as I explain it—even
if you do not agree with the law”; and (3) the jury “must follow all of my
instructions as a whole.” The court elaborated that the jury “must consider only
the evidence that I have admitted in the case. Evidence includes the testimony of
witnesses and the exhibits admitted.” The court directed the jurors to discuss the
case with one another and to try to reach a unanimous agreement. The jurors’ only
interest was “to seek the truth from the evidence in the case.”
During the jury deliberations that same day, courtroom personnel informed
the district court that Juror No. 9 had left the jury room during deliberations and
was visibly upset. Courtroom personnel had advised Juror No. 9 to return to the
deliberation room and told all the jurors that, if they had an inquiry, they should
send it to the court in writing.
Later that day, the district court received from the jury two written
communications, which the court read to both parties. The first note, from the jury
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foreperson, stated: “We have 1 juror who wants to give her verdict on counts 1 &
2 to the judge directly and not to the foreperson. Is that possible?” The second
note was from Juror No. 9 and stated, “Judge I’m sorry my opinion is I wasn’t
there at this time if they are guilty or not.” The district court observed that the
meaning of the second note was unclear, but if Juror No. 9 was indicating that she
would have to have seen the underlying acts occur in-person to make a decision,
her position was unacceptable. As to the first note, the district court reinstructed
the jury on its duty to deliberate and admonished that the jury’s “only interest is to
seek the truth from the evidence in the case.”
Shortly thereafter, the district court received another note from the
foreperson that stated, “A juror does not want to deliver a verdict because the juror
was not present when the alleged events took place. How do we proceed? Do we
need to call an alternate?” With the agreement of both parties, the district court
summoned Juror No. 9 and spoke with her as follows:
THE COURT: Have you decided that you should not deliver a verdict
because you were not present when the events took place?
JUROR: Judge, that’s my opinion.
THE COURT: I’m sorry?
JUROR: I wasn’t there at this time. I don’t know anything. But that’s
why I say that.
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THE COURT: So you believe that because you were not able to observe
the things that people testified about in this case, that you would not be
able to render a verdict; is that correct?
JUROR: I don’t know, Judge. That’s what I can—I can tell you
anything, but I don’t know.
THE COURT: No. Listen to my question, ma’am. What I’m asking is
whether you feel that because you were not present to see the events that
people testified about in this case, that that would prevent you from
being able to render a verdict? Is that correct?
JUROR: Yes. Correct.
THE COURT: And that’s what you were trying to tell me in your note
when you said, “I’m sorry my opinion is I wasn’t there at this time if
they are guilty or not.”
JUROR: Yes, I don’t know if they’re guilty or not.
THE COURT: Because you were not able to see it with your eyes; is that
correct?
JUROR: Yes.
The district court stated that Juror No. 9’s answers, together with her earlier
note, indicated she was unable to honor the oath to deliberate. Accordingly, the
court found good cause to excuse Juror Number 9. Although Defendant Martinez
objected to an 11-person jury, the court determined that, pursuant to Federal Rule
of Criminal Procedure 23(b)(3), good cause existed to dismiss Juror No. 9, and
thus deliberations could proceed.
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The jury found Martinez guilty on both counts. The district court sentenced
Martinez to 168 months’ imprisonment. Martinez now appeals.
II. DISCUSSION
A. Motion for a Mistrial
Defendant Martinez argues that the district court abused its discretion in
denying his motion for a mistrial because Gonzalez’s testimony about how he met
Martinez was improper under Federal Rule of Evidence 404(b) and so prejudicial
that it could not be cured by the district court’s instruction.1 If the district court
gives a curative instruction, reversal is appropriate only if the evidence “is so
highly prejudicial as to be incurable” by the district court’s instruction. United
States v. Garcia, 405 F.3d 1260, 1272 (11th Cir. 2005) (internal quotation mark
omitted). This Court presumes the jury follows the district court’s instructions.
United States v. Mock, 523 F.3d 1299, 1303 (11th Cir. 2008).
Here, even assuming arguendo that Gonzalez’s spontaneous and isolated
reference to a 10-year-old drug deal was improper, any prejudice was cured by the
district court’s immediate and direct admonition that the jury disregard the
reference. See United States v. Funt, 896 F.2d 1288, 1295 n.5 (11th Cir. 1990)
1
This Court reviews for abuse of discretion a district court’s refusal to grant a mistrial.
United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009).
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(noting this Court has repeatedly affirmed a district court’s denial of a motion for a
mistrial where the improper testimony was “spontaneous and singular”). In its
final charge, the district court reinforced that the jury should consider only the
evidence admitted in the case. Further, the admitted evidence amply supported
Martinez’s convictions, and Martinez has not demonstrated that the outcome of his
trial would have been different absent Gonzalez’s passing reference to a 10-year-
old drug deal. In light of these circumstances, the district court did not abuse its
discretion in denying Martinez’s motion for a mistrial.
B. Dismissal of Juror No. 9
Defendant Martinez next argues that the district court abused its discretion
in dismissing Juror No. 9 because no “just cause” existed for the juror’s dismissal
under Federal Rule of Criminal Procedure 23(b)(3).2 That Rule allows a district
court to excuse a juror and to “permit a jury of 11 persons to return a verdict, even
without a stipulation by the parties, if the court finds good cause to excuse [the]
juror.” Fed. R. Crim. P. 23(b)(3).3 “Good cause” to dismiss a juror exists when
2
This Court reviews for abuse of discretion a district court’s decision to remove a juror
and to permit an 11-member jury to deliberate to a verdict. United States v. Augustin, 661 F.3d
1105, 1129 (11th Cir. 2011).
3
We reject Defendant Martinez’s assertion that the district court applied the wrong
standard because the court stated “good” cause existed, rather than “just” cause. The district
court correctly applied the post-2002 Amendments version of Rule 23. See Fed. R. Crim. P. 23
advisory committee notes (2002 Amendments) (changing the language of Rule 23 from “just”
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that juror refuses to apply the law or to follow the court’s instructions. United
States v. Augustin, 661 F.3d 1105, 1129 (11th Cir. 2011). A juror should be
excused only if “no substantial possibility” exists that the juror is basing her
decision on the sufficiency of the evidence.4 Id.
Here, Juror No. 9 made clear—both in her note and in her responses to the
district court’s careful inquiry—that she was unable to reach a verdict because she
did not personally observe Defendant Martinez commit the offenses. Juror No. 9
thus demonstrated her unwillingness to follow the district court’s instructions that
the jury must consider only the evidence presented at trial and to “seek the truth
from the evidence in the case.” Although Martinez argues the district court should
have instructed Juror No. 9 individually, the district court’s decision not to was
well within its discretion. See Augustin, 661 F.3d at 1129 (noting district court’s
“broad discretion” to investigate juror misconduct, which discretion “extends even
to the initial decision of whether to interrogate the jurors” (internal quotation
marks omitted)).
Defendant Martinez also contends that the district court abused its
cause to “good” cause). In any event, no change in substance was intended by the amendment
from “just” to “good” cause. Id.
4
The district court’s determination that “no substantial possibility” exists is a finding of
fact that this Court reviews only for clear error. See Augustin, 661 F.3d at 1129.
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discretion because it did not expressly state the words “no substantial possibility,”
but the district court’s failure to recite certain words or phrases cannot be deemed
an abuse of discretion. See United States v. Abbell, 271 F.3d 1286, 1303 (11th
Cir. 2001) (not requiring the district court to state specifically “no substantial
possibility”), called into doubt on other grounds by Regalado Cuellar v. United
States, 553 U.S. 550, 555 n.1, 128 S. Ct. 1994, 1998 n.1 (2008). The record
demonstrates no substantial possibility existed that Juror No. 9 based her decision
on the sufficiency of the evidence. Accordingly, the district court did not abuse its
discretion by dismissing Juror No. 9 and proceeding with an 11-member jury.5
AFFIRMED.
5
We note Martinez raises no issues on appeal as to his sentence.
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