UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-6086
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
Belarmino SANCHEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 23, 1996
Before WISDOM, GARWOOD, and JONES Circuit Judges:
EDITH H. JONES, Circuit Judge
Defendant Belarmino Sanchez (“Sanchez”) appeals his
conviction on five counts of misdemeanor civil rights violations
under 18 U.S.C. § 242 (“§ 242") and one count of felonious civil
rights violation under the same statute. Because the district
court abused its discretion when it empaneled an anonymous jury
to adjudicate Sanchez’s guilt, this court reverses and remands
for a new trial.
I. FACTUAL BACKGROUND
Sanchez was a Galveston Police Officer assigned to patrol
an area of that city frequented by prostitutes and bustling with
illicit drug activity. While patrolling this area between
September and November of 1992, Sanchez allegedly used the threat
of arrest to coerce five suspected prostitutes to engage in various
sexual acts with him against their will.
Following trial in which the district court empaneled an
anonymous jury, Sanchez was convicted and sentenced to serve 180
months of imprisonment.1 On appeal, Sanchez contends that: (a)
the district court erred in empaneling an anonymous jury; (b) the
evidence of “significant injury” was insufficient to support
Sanchez’s conviction for a felonious civil rights violation; and
(c) the district court erred in excluding testimony that
purportedly corroborated Sanchez’s defense that he was the victim
of a conspiracy by the suspected prostitutes against him and the
Galveston Police Department.2
II. DISCUSSION
A. Anonymous Jury
Until recently, this court had not addressed the
constitutionality of empaneling anonymous juries in criminal
trials. However, in United States v. Krout, 66 F.3d 1420, 1427
(5th Cir. 1995) we recognized that “the decision to empanel an
anonymous jury . . . is a drastic measure, which should be
undertaken only in limited and carefully delineated circumstances.”
Accordingly, this court approved the use of anonymous juries only
“when needed to ensure against a serious threat to juror safety, if
1
Specifically, Sanchez was sentenced to prison for 120 months on the
felony count and 12 months on each of the five misdemeanor counts, to be served
consecutively.
2
Because of our disposition of the case on the jury issue, this court
need not reach the merits of Sanchez’s additional argument that the district
court erred in refusing certain of his peremptory challenges.
2
the courts also protect the defendants’ interest in conducting
effective voir dire and maintaining the presumption of innocence.”
Id. Krout’s narrowly conscribed approval of anonymous juries
concurs with the reasoning of other federal circuits that have
addressed this issue. See, e.g., United States v. Paccione, 949
F.2d 1183 (2d Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 3029
(1992); United States v. Scarfo, 850 F.2d 1015, 1023-26 (3d Cir.),
cert. denied, 488 U.S. 910, 109 S. Ct. 263 (1988); United States v.
Crockett, 979 F.2d 1204 (7th Cir. 1992), cert. denied, ___ U.S.
___, 113 S. Ct. 1617 (1993); United States v. Ross, 33 F.3d 1507
(11th Cir. 1994); United States v. Edmond, 52 F.3d 1080 (D.C. Cir.
1995).
A district court’s decision to empanel an anonymous jury
is entitled to deference and is scrutinized by this court for abuse
of discretion. Krout, 66 F.3d at 1426; United States v. Thornton,
1 F.3d 149, 154 (3d Cir.), cert. denied, ___ U.S. ___, 114 S. Ct.
483 (1993). Factors that may justify the district court’s decision
to protect jurors through anonymity include:
(1) the defendants’ involvement in organized
crime; (2) the defendants’ participation in a
group with the capacity to harm jurors; (3)
the defendants’ past attempts to interfere
with the judicial process or witnesses; (4)
the potential that, if convicted, the
defendants will suffer a lengthy incarceration
and substantial monetary penalties; and, (5)
extensive publicity that could enhance the
possibility that jurors’ names would become
public and expose them to intimidation and
harassment.
Krout, 66 F.3d at 1427. Additionally, so that “the use of
anonymous juries will remain a device of last resort, it is
3
necessary that the district court base its decision on more than
mere allegations or inferences of potential risk.” Id. As a
result, a district court does not abuse its discretion to empanel
an anonymous jury if the “evidence at trial supports the conclusion
that anonymity was warranted.” Id. (citing United States v. Wong,
40 F.3d 1347, 1376-77 (2d Cir. 1994)).
In the instant case, jury selection occurred on June 3,
1994, but because the trial judge was required to attend a judicial
conference the following week, the evidentiary phase of trial was
not scheduled to commence until June 13. Planning for this delay,
the magistrate judge issued an order on May 20 that redacted all
identifying information about prospective jurors from the jury
selection information provided to the parties. The express purpose
of this order was “[t]o minimize the possibility of jury tampering
in this cause during the ten day delay between jury selection and
commencement of the evidentiary phase of the trial.”
The district court overruled the defendant’s objections
to this order and confirmed that the names of the jurors and their
spouses, their addresses and places of employment be deleted from
the jury lists. Simultaneously, however, the district court
acknowledged that there were neither allegations nor inferences of
tampering. Nevertheless, the district court concluded that
redacting the jurors’ identities was necessary because of the delay
following jury selection as well as the potential fears of jurors
adjudicating the guilt or innocence of a police officer. These
potential fears were based on the district judge’s speculation that
4
“I don’t think there’s anything more frightening to the populous
[sic] [than] having a rogue cop on their hands.”
Under the framework enunciated in Krout, the court's
decision cannot be upheld. Virtually none of the factors listed in
Krout as justifying an anonymous jury exists in the present case.
No one could demonstrate or even allege that Sanchez was either
involved in organized crime or participated in a group that would
attempt to harm the jurors. Likewise, despite the courts' concern
about jurors' fears of deciding a case about an alleged renegade
policeman, there was no evidence that Sanchez had attempted to
interfere with the judicial process or witnesses. Finally, there
was no indication that the jurors in this case would be subjected
to the type of extensive publicity that might bring about
intimidation and harassment. Because there was no evidence before
the district court to support the conclusion that anonymity was
warranted, the district court’s decision erroneously rested on the
“mere allegations or inferences of potential risk.” Krout, 66 F.3d
at 1427. We must conclude that Sanchez's right to be tried before
a panel of identified jurors was not required to be sacrificed in
this case.
The government argues that even if the Krout criteria
were lacking, it was harmless error to try the case before an
anonymous jury because the court conducted extensive voir dire and
enabled Sanchez to pick an unbiased jury, albeit Sanchez did not
know the jurors' names and addresses or their spouses' or
employers' names. We disagree. The defendant has a right to a
5
jury of known individuals not just because information such as was
redacted here yields valuable clues for purposes of jury selection,
but also because the verdict is both personalized and personified
when rendered by 12 known fellow citizens. Unless the type of
circumstances listed in Krout exist, where the defendant has
essentially compromised his right, he should receive a verdict, not
from anonymous decisionmakers, but from people he can name as
responsible for their actions. In closer cases on the merits of
requiring anonymity, there might be room for a harmless error
analysis, but this is not such a case. The conviction must be
reversed and remanded for retrial.
B. “Significant Injury”
Sanchez cannot escape retrial on the ground that there
was insufficient evidence to sustain his conviction for the
felonious civil rights violation of one of his victims, Paula Ruiz
(“Ruiz”). Specifically, Sanchez argues that the government failed
to prove that Ruiz suffered a significant injury during Sanchez’s
attack. While Sanchez recognizes that after Harper v. Harris Co.,
21 F.3d 597, 600 (5th Cir. 1994), this court no longer requires
significant injury for a victim to complain of excessive force
under the Fourth Amendment, he nevertheless urges that Harper was
not clearly established, controlling law in 1992, when the attack
on Ruiz occurred.3 Rather, Sanchez argues that Harper’s
3
In part, Harper was prompted by the Supreme Court’s holding in
Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995 (1992), that rejected significant
injury as a requirement for claims of cruel and unusual punishment under the
Eighth Amendment.
6
predecessor, Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989)
(en banc) was the controlling law in this circuit and that Johnson
required a showing of significant injury for a victim to seek
Fourth Amendment relief for excessive force.
Sanchez did not argue in the trial court, as he does
here, that significant injury was an element of a criminal civil
rights violation based on excessive force. He did not object to
the jury charge for failing to require a finding of significant
injury; the charge required only a finding of bodily injury. Thus,
to the extent Sanchez’s present position is a jury charge argument
cloaked as a sufficiency argument we may review it only for plain
error. Under the stringent Olano test, we find none.4
Even if Sanchez is correct and Johnson was the
controlling law when the attack on Ruiz occurred,5 the evidence at
trial was sufficient to demonstrate significant injury and to
sustain a felony conviction under Count 5. Ruiz testified that
Sanchez, who had on an earlier occasion coerced her into performing
oral sex, not only threatened to kill her, but also slammed her
against his car, struck her on the head with his gun, and, when she
fell, pulled her up by the hair and choked her. The assault left
Ruiz with torn clothing, a knot on her head, and scratches on her
body. Her roommate, Rebecca McAdams (“McAdams”) testified that
4
United States v. Olano, ___ U.S. ___, 113 S. Ct. 1770, 1776-79
(1993).
5
Since Ruiz did suffer significant injury, this court need not
address whether such injury was required as part of a violation of the Fourth
Amendment right to be free from excessive force in October or November, 1992.
7
when Ruiz returned to their home after the attack, “[s]he was very
hysterical. She was crying and screaming and her clothes were
torn. She was very upset and hurting. She was hurting real bad.”
According to McAdams, Ruiz repeatedly complained about pain in her
stomach and abdomen. Although McAdams offered to take Ruiz to the
hospital, Ruiz refused, fearful that Sanchez would retaliate if she
discussed the assault with hospital personnel.
As this testimony demonstrates, Sanchez’s attack on Ruiz
satisfies Johnson’s requirement of significant injury. In Johnson,
the victim was handcuffed by police so tightly as to scar his
wrists and cause him pain for two weeks. Johnson, 876 F.2d at 478.
By contrast, Ruiz was threatened by Sanchez with death, slammed
against his car, struck on the head with his gun, pulled from the
floor by her hair, and choked, leaving her with a knot on her head,
scratches, bruises, and abdominal as well as stomach pain.
Furthermore, in Johnson, the victim was under arrest when he was
allegedly subjected to excessive force by the police, while in the
present case, Ruiz was never under arrest; in different terms, the
assault on Ruiz was an assault on a citizen over whom the police
had no probable cause even to exert reasonable force.6 Even if
Sanchez had enjoyed such authority, Ruiz is a 23-year-old woman who
was neither belligerent nor any physical threat to him; hence,
6 The conclusion that Ruiz’s injury was significant accords with other
decisions of this court. For example, in Hay v. City of Irving, Tex., 893 F.2d
796 (5th Cir. 1990), this court held that an arrestee who was physically
resisting the police demonstrated significant injury when the officer's assault,
although leaving the arrestee with bruises and extensive pain, did not require
him to be “hospitalized, and the doctor prescribed nothing stronger than
Tylenol.” Hay, 893 F.2d at 798. See also Oliver v. Collins, 914 F.2d 56, 58
(5th Cir. 1990).
8
Sanchez’s use of such violent force was obviously excessive. The
evidence at trial was sufficient to conclude that because Ruiz was
not under arrest and posed no threat to Sanchez, his use of violent
force was excessive and violated her civil rights.
C. Conspiracy Theory
Finally, Sanchez contends that the district court erred
when it excluded the testimony of Jorge Trevino (“Trevino”), a
fellow Galveston police officer, who was to testify that at some
time after Sanchez had been indicted, Trevino was approached by a
local prostitute and was warned, “You’re next.” From this
statement, Sanchez apparently inferred that he was a victim of a
conspiracy organized by local prostitutes to remove law enforcement
officers from the streets. As a result, Sanchez argues that the
district court’s exclusion of the testimony deprived him of the
right to present a witness in his defense, implicating his Sixth
Amendment rights and other due process concerns.
Finding no basis for Sanchez’s inference, the district
court ruled that the testimony was inadmissible under Fed. R. Evid.
403 because “the prejudicial implication of an uncorroborated
allegation manifestly outweighs the probative value.” Indeed, the
court found that such an unsupported allegation “would tax the
bounds of paranoia to suggest that all the women in Galveston have
banded together to do violence to the police department.” The
court further concluded that the testimony was inadmissible under
either Fed. R. Evid. 405(b) or 404(a) because it constituted
“merely a random uncorroborated act that seeks to exonerate.”
9
This court reviews for abuse of discretion the district
court’s decision to exclude unduly prejudicial evidence. United
States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990), cert. denied,
500 U.S. 934, 111 S. Ct. 2057 (1991) (requiring a “clear showing of
prejudicial abuse of discretion”); United States v. Blake, 941 F.2d
334, 340 (5th Cir. 1991), cert. denied, ___ U.S. ___, 113 S. Ct.
596 (1992). In this case, there was no evidence before the
district court that any of Sanchez’s victims had conspired to
conjure charges against him. The excluded statement was allegedly
made by a prostitute who, apart from her illicit vocation, had no
discernible association with any of the victims. Although Sanchez
contends that the statement was somehow exculpatory, there was
substantial and corroborated evidence of his guilt. Hence, the
district court’s decision to exclude uncorroborated, speculative
testimony of a mysterious conspiracy to frame Sanchez was not an
abuse of its discretion.
CONCLUSION
Because the district court abused its discretion when it
empaneled an anonymous jury to adjudicate Sanchez’s guilt, this
court REVERSES his convictions and REMANDS for a new trial.
10