FILED
NOT FOR PUBLICATION MAR 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10018
Plaintiff - Appellee, D.C. No. 2:09-cr-00273-JAM-2
v.
MEMORANDUM *
CLEMENTE FERRIAS ARROYO,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-10022
Plaintiff - Appellee, D.C. No. 2:09-cr-00273-JAM-1
v.
JOSE ALFREDO ZEPEDA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted December 3, 2012 **
San Francisco, California
Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.
Defendants Clemente Ferrias Arroyo and Jose Alfredo Zepeda were convicted
of various crimes stemming from their participation in a large marijuana growing
operation in rural Lassen County, California.1 They appeal, contending that the
district court investigated an accusation of jury misconduct inadequately. We
disagree. Arroyo and Zepeda also argue that the district court’s ex parte response
denying the jury’s request for a transcript of Arroyo’s testimony was structural error
requiring automatic reversal of both convictions under United States v. Cronic, 466
U.S. 648 (1984). We agree that the court erred. The error was not structural as to
Zepeda’s conviction, and his conviction is affirmed. Because we cannot say that this
error was “harmless beyond a reasonable doubt” as to Arroyo, Chapman v. California,
386 U.S. 18, 24 (1967), we reverse his conviction and remand. We therefore need not
decide whether the error was structural as to Arroyo. Id.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1
Defendants were convicted of: conspiracy to manufacture marijuana plants in
violation of 21 U.S.C. §§ 846 and 841(a)(1); manufacture of marijuana plants in
violation of 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).
2
We begin by addressing Arroyo’s and Zepeda’s challenge to the adequacy of
the district court’s investigation into potential juror misconduct, specifically one
juror’s alleged intimidation of other jurors.
Near the beginning of deliberations, the jury foreperson informed the district
court that another juror was being overtly hostile to her fellow jurors. With all parties
present, the district judge informed the accused juror individually that her conduct
during deliberations intimidated other jurors. The district judge later called the entire
jury to the courtroom, and instructed them on, among other things, the importance of
civility. No juror made any further complaint, and when asked, before the judge
announced their verdict, whether any juror felt coerced into going along with the
verdict, no juror raised his or her hand. After the judge read the verdict, he offered the
parties the opportunity to have the jury polled. Both sides declined.
Ordinarily, we review the district court’s investigation of jury misconduct for
abuse of discretion. United States v. Shryock, 342 F.3d 948, 973 (9th Cir. 2003)
(citing United States v. Beard, 161 F.3d 1190, 1194 (9th Cir. 1998)). The government
urges us to review the court’s investigation for plain error, as neither Arroyo nor
Zepeda objected to the proceedings while the district court conducted them. We need
not determine whether plain error or abuse of discretion review applies to the district
3
court’s handling of the investigation, because the district court did not err under either
standard.
Arroyo and Zepeda suggest the district judge could have better addressed the
foreperson’s complaint, but a district court conducting a hearing to investigate juror
misconduct has “discretion to determine the extent and nature of the hearing” into that
misconduct. Price v. Kramer, 200 F.3d 1237, 1254 (9th Cir. 2000) (quoting Hard v.
Burlington N. R.R., 812 F.2d 482, 485 (9th Cir. 1987)). That the district court could
have conducted its investigation differently does not mean the district court abused
its discretion, much less that it plainly erred, by resolving the complaint as it did. We
reject Arroyo’s and Zepeda’s argument that the district court’s investigation was
inadequate, and turn to the issue of the judge’s ex parte communication with the jury.
Later in its deliberations, the jury sent a note requesting the “transcript from
Arroya [sic] testimony.” The same day, the judge responded in writing to the jury’s
request:
As I previously instructed you, “At the end of the trial you will have to
make your decision based on what you recall of the evidence. You will
not have a written transcript of the trial. I urge you to pay close attention
to the testimony as given.” Accordingly, your request for the “transcript
from Arroyo testimony” must be denied.
4
The judge did not inform either party of the jury’s request or of his response,
and both were entered on the district court’s docket only after the verdict.2 Arroyo
and Zepeda contend that this communication with the jury was structural error
requiring automatic reversal. See Cronic, 466 U.S. at 659. We reject Zepeda’s
argument that the error was structural as to his conviction.3 See Bell v. Cone, 535 U.S.
685, 695–96 (2002). Zepeda concedes that if the error is not structural, then it was
harmless as to him. As to Arroyo, we conclude that the court’s ex parte
communication with the jury was not “harmless beyond a reasonable doubt,”
Chapman, 386 U.S. at 22, and therefore we need not reach the question whether the
error was structural to remand his case for a new trial. See Mach v. Stewart, 137 F.3d
630, 634 (9th Cir. 1998) (declining to decide whether error was structural “because
this error requires reversal under the harmless-error standard as well . . . .”).
We have recognized that “defendants or their attorneys have a due process right
to be present in conferences when jurors’ notes are discussed . . . .” Frantz v. Hazey,
2
That same afternoon, the judge received and responded to two other notes
from the jury regarding the elements of the charged crimes with the guidance of
counsel.
3
The error was not structural as to Zepeda. The request for Arroyo’s testimony
does not implicate the basis for Zepeda’s conviction. Thus, from Zepeda’s
perspective, the potential response to the note did not hold “significant consequences,”
Bell, 535 U.S. at 695–96, and was not a critical stage requiring automatic reversal of
Zepeda’s conviction. And, needless to say, the error was harmless as to Zepeda.
5
533 F.3d 724, 743 (9th Cir. 2008) (citing United States v. Barragan-Devis, 133 F.3d
1287, 1289 (9th Cir. 1998)). By responding to the jury’s request for a transcript of
Arroyo’s testimony without first consulting Arroyo or his counsel, the district court
committed a constitutional error, which we may ordinarily disregard only if the error
is “harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 21–22; see
Barragan-Devis, 133 F.3d at 1289.
Arroyo’s defense rested on the argument that he was coerced into participating
in the marijuana farming operation that led to his arrest. Arroyo was 63 years old at
the time of trial. He testified that two men he did not know picked him up while he
was working as a day laborer and took him to a remote site. Arroyo also testified that
the men threatened not to take him back if he refused to work, and that he believed
they might harm him. Once at the site of the garden, Arroyo testified that he did not
feel free to leave (although he was not directly threatened). While Arroyo testified
that he had been given a gun, he claimed not to know how to use it. Even if he could
have escaped under these circumstances, Arroyo also testified that he was unfamiliar
with the area where the garden was located and feared encountering animals if he tried
to leave the site, which was more than a four-hour drive away from where he had been
picked up and eleven miles from the closest town.
6
For us to find that the error in this case was harmless, it is the government’s
burden to “prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman, 386 U.S. at 24; United States v. Frazin,
780 F.2d 1461, 1469–70 (9th Cir. 1986). Three factors are typically cited in
evaluating “harmlessness” in the context of courts’ responses to jury notes: (1) “the
probable effect of the message actually sent”; (2) “the likelihood that the court would
have sent a different message had it consulted with appellants beforehand”; and (3)
“whether any changes in the message that appellants might have obtained would have
affected the verdict in any way.” Frazin, 780 F.2d at 1470–71. Arroyo argues that
had his counsel been present, the court may have responded differently to the jury’s
transcript request. He offers one possible result that may have followed had he been
allowed to participate in the formulation of the response: he would have argued for,
and the judge could have provided, a read-back of the testimony—something both
parties agree was within the court’s discretion. Had counsel been successful in
convincing the judge to allow for a read-back, or for distribution of a copy of the
transcript, it could have affected the jury’s verdict with respect to Arroyo because the
viability of Arroyo’s coercion defense rests almost entirely on the jury’s assessment
of the credibility of his testimony.
7
A rational jury exposed to all or part of Arroyo’s testimony could have found
that he was coerced to participate in the crimes of which he was convicted. In
requesting a copy of Arroyo’s transcript, the jury was likely engaged in weighing and
testing the viability of Arroyo’s testimony. At the end of the day, we cannot conclude
that the government has met its burden to show that the error here was harmless. See
id. at 1469–70 (quoting Chapman, 386 U.S. at 24) (holding that it is the government’s
burden to prove “beyond a reasonable doubt” that the court’s error “did not contribute
to the verdict obtained”). Accordingly, we reverse Arroyo’s conviction and remand
for proceedings consistent with this disposition. Frazin, 780 F.2d at 1469–70. We
affirm Zepeda’s conviction.
No. 11-10018: Reversed and Remanded.
No. 11-10022: Affirmed.
8