United States v. Black

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 1 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 03-4174
ANDERSON BLACK,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 00-CR-476-DKW)

Jenine M. Jensen, Assistant Federal Public Defender, (Michael G. Katz, Federal Public
Defender, with her on the brief), Denver, Colorado, for the defendant-appellant.

Michael S. Lee, Assistant United States Attorney, (Paul M. Warner, United States
Attorney, with him on the brief), Salt Lake City, Utah, for the plaintiff-appellee.

Before SEYMOUR, BRISCOE, and TYMKOVICH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Anderson Black appeals his convictions of two counts of first-degree

murder on Indian land, in violation of 18 U.S.C. §§ 1111 and 1153(a), one count of

assault with a dangerous weapon on Indian land, in violation of 18 U.S.C. §§ 113(a)(3)
and 1153(a), and one count of assault resulting in serious bodily injury on Indian land, in

violation of 18 U.S.C. §§ 113(a)(6) and 1153(a). We have jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

I.

The essential facts of this case are not disputed. After a night of heavy drinking,

Black went to his parents’ house where his wife, his niece, his three-year-old son, and his

one-year-old daughter were staying. He proceeded to beat his wife. When his wife

escaped, Black assaulted his niece, cutting her across the face with a kitchen knife, and

murdered his two children, cutting their throats. Black then drove to the home of his

sister, Cecilia Black Lee, and informed her that he had killed his children. The only issue

at trial was whether the murders were premeditated. Black contended he suffered from

diminished capacity, specifically that he was an alcoholic and very intoxicated at the time

of the murders.

Lee testified at trial regarding her brother’s demeanor and statements on the night

of the murders. During her testimony, the district judge interrupted her numerous times to

ask her to speak louder and directly into the microphone. After one interruption, Lee

asked for permission to testify in Navajo. Neither counsel nor the court responded and

Lee continued to testify in English. Several minutes later, defense counsel interrupted the

government’s direct examination of Lee and stated: “Your Honor, I am concerned

whether this witness would be more comfortable in Navajo than in English. There was

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something that was said early on by the witness, and if she is uncomfortable in English

then I am uncomfortable having her testify that way.” ROA, Vol. IV at 380. The district

court directed Lee to continue her testimony in English. On cross-examination, Lee

testified that she was most fluent in Navajo and that she used that language when

speaking with her brother. She acknowledged that she spoke English in school and that

she sometimes spoke English in her work as a cashier. She denied there was any need for

the prosecutor to repeat or clarify any questions that had been asked.

During the testimony of Dr. Todd Grey, a medical examiner called by the

government, the court admitted an autopsy photograph. When the photograph was shown

to the jury, one juror fainted. After the juror had been revived and examined by a

physician, the juror met with the district judge and counsel in chambers. The district

judge asked the juror: (1) “Do you feel okay now?” (2) Do you want to continue on?” (3)

“Do you feel that your impartiality has been questioned in any way by what has

occurred?” ROA, Vol. V at 647-48. The juror responded that she felt okay, that she

would continue, and that she did not feel her impartiality was questioned. The court gave

counsel an opportunity to ask additional questions and they declined. However, defense

counsel moved for a mistrial or, alternatively, that the juror be excused from the jury

panel. The district judge denied both defense motions. When the jury returned to the

courtroom, the district judge addressed them as follows:

[The juror] is going to go forward. She has insured me that she feels
all right and is willing to proceed. I feel that she should continue on if she

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 wants to. She said that she is all right physically now. The rest of you
should certainly not consider this in connection with what your verdict
might be in this case.
Do any of you feel in any way that your impartiality that you assured
me about before trial has been affected? If so raise your hand.
Counsel have agreed that in the continued testimony of Dr. Grey that
the photographs will not be used, any of the photographs. Do any of you
feel that you could not continue for any reason? If so raise your hand.

Id. at 649-50. No juror responded.

At the conclusion of the five-day trial, the jury found Black guilty of two counts of

first-degree murder on Indian land (Counts I and II), one count of assault with a

dangerous weapon on Indian land (Count III), and one count of assault resulting in

serious bodily injury on Indian land (Count IV). He was sentenced to concurrent terms of

life imprisonment on Counts I and II.

II.

On appeal, Black argues (1) that the district court erred in refusing to appoint an

interpreter to allow two witnesses to testify in the Navajo language; (2) that the court

erred by not dismissing the juror who fainted during trial; and (3) that the court erred by

not declaring a mistrial due to the juror fainting.

Failure to appoint interpreter

The Court Interpreter’s Act provides that a district court shall utilize an interpreter

if the presiding judicial officer determines on such officer’s own motion or
on the motion of a party that such party (including a defendant in a criminal
case), or a witness who may present testimony in such judicial proceedings
. . . speaks only or primarily a language other than the English language
. . . so as to inhibit such party’s comprehension of the proceedings or

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 communication with counsel or the presiding judicial officer, or so as to
inhibit such witness’ comprehension of questions and the presentation of
such testimony.

28 U.S.C. § 1827(d)(1) (emphasis added). Thus, “a defendant is only statutorily entitled

to the appointment of an interpreter if the district court determines that the defendant [or a

witness]: (1) speaks only or primarily a language other than the English language; and (2)

this fact inhibits their comprehension of the proceedings or communication with counsel.”

United States v. Johnson, 248 F.3d 655, 661 (7th Cir. 2001). “We review the trial court’s

determination with respect to the appointment . . . of an interpreter only for an abuse of

discretion.” United States v. Urena, 27 F.3d 1487, 1492 (10th Cir. 1994); see also United

States v. Sandoval, 347 F.3d 627, 632 (7th Cir. 2003) (stating “[t]he district court is

afforded wide discretion in implementing the Court Interpreter’s Act because it is in the

best position to evaluate the need for and the performance of interpreters”).

Although Lee may have been “more comfortable” with the Navajo language, as

defense counsel suggested at trial, it does not appear from her lengthy testimony that she

had any difficulty with the English language. To the contrary, her clear and responsive

answers throughout her testimony demonstrated that she was fluent in the English

language. It does not appear from the record that she struggled with either vocabulary or

grammar in her responses. When asked, she denied the need to have the prosecutor repeat

or clarify any question that had been asked.

Black focuses on a few relatively short portions of Lee’s testimony during which

5
she appeared to misinterpret a question or was unable to recall an answer. Black also

notes that the district court interrupted Lee’s testimony repeatedly because she could not

be understood. However, the complete transcript of Lee’s testimony reveals that the

reason she could not be understood was that she was soft-spoken and failed to speak into

the microphone. The district court interrupted Lee repeatedly to ask her to speak louder

and to move closer to the microphone. Black notes that at one point during the

government’s direct examination of Lee, defense counsel stated, “I am not getting any of

this,” and the court responded, “Nobody is.” ROA, Vol. IV at 379. However,

immediately prior to this exchange, the court stated that the jury “is not hearing this,” and

the prosecutor instructed Lee to “scoot just a little bit closer and speak as loud as you

can.” Id. Although Lee was unable to answer many of the questions posed to her, the

problem was her lack of recollection, not her lack of mastery of the English language.

We cannot conclude that the district court abused its discretion by failing to appoint an

interpreter.

Relatedly, Black argues the district court should have at least made an inquiry into

the possible need for an interpreter. Black argues this case is similar to United States v.

Osuna, 189 F.3d 1289 (10th Cir. 1999), where, in a split decision, this court concluded it

was plain error for the district court to fail to inquire into the defendant’s need for a

Spanish-speaking interpreter and remanded for “findings, and if necessary, further

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proceedings in the trial court to make those findings.” Id. at 1294.1

In Osuna, it was clear from the record that defendant’s language difficulty was

apparent at trial. Defendant lapsed into Spanish during his testimony and there were

fourteen places in the transcript where the court reporter noted defendant’s testimony was

“unintelligible.” Id. at 1293 n.3. At one point, the prosecutor stated that “maybe we

ought to have a Spanish interpreter.” Id. at 1291 n.1 (internal quotation omitted). Based

on that record, we concluded that, “due to the difficulties which became apparent during

the trial proceedings here, it was the trial judge’s duty to inquire into the possible need to

obtain the services of an interpreter under the Court Interpreters Act.” Id. at 1294

(emphasis added). In the present case, there is no indication in the record that

communication difficulties similar to those in Osuna were apparent to the district court

during the trial proceedings.

Further, when viewed in the context of Lee’s entire testimony, the district court’s

duty to inquire as to the need for an interpreter was not triggered by her request that she

be allowed to testify in Navajo, her statement that she was most fluent in Navajo, or by

defense counsel’s suggestion that she might be more comfortable testifying in Navajo.

1
In Osuna, the possible need for an interpreter was not raised at trial and we
applied the plain error standard of review. On remand, the district court held an
evidentiary hearing and found that defendant had not been inhibited in his ability to
understand or communicate. Defendant challenged that finding in a second appeal. This
court affirmed, concluding the district court’s finding was not clearly erroneous. United
States v. Osuna, 2001 WL 37704 (10th Cir. Jan. 16, 2001).

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Black relies heavily on the fact that in Osuna, the majority quoted with approval United

States v. Tapia, 631 F.2d 1207, 1209 (5th Cir. 1980), where it was stated: “Any indication

to the presiding judicial officer that a criminal defendant speaks only or primarily a

language other than the English language should trigger application of Section (d) and

(f)(1) [defendant’s waiver of right to interpreter] of the Court Interpreter’s Act.” Osuna,

189 F.3d at 1291. Black cites the “[a]ny indication” language in Osuna to argue the

appointment of an interpreter was required here. However, the majority in Tapia also

quoted Valladares v. United States, 871 F.2d 1564, 1565-66 (11th Cir. 1989) where the

court stated: “Section 1827 does place on the trial court a mandatory duty to inquire as to

the need for an interpreter when a defendant has difficulty with English.” (Emphasis

added.) Further, in Osuna, the majority’s analysis relied to a great extent on the fact that

language difficulties were apparent during the trial. The concurring opinion questioned

whether Tapia set forth the proper standard and relied instead on narrower grounds,

concluding “the number of unintelligible portions of the transcript, the judge’s repeated

efforts to clarify the testimony offered by the defendant, and particularly the prosecutor’s

explicit concern that ‘maybe we ought to have a Spanish interpreter,’” when taken

together, were sufficient to trigger the court’s duty to inquiry into the need for an

interpreter. Osuna, 189 F.3d at 1295 (Henry, J., concurring). The dissenting opinion

concluded there was no evidence in the record that established defendant’s primary

language was other than English. Id. at 1296 (Brorby, J., dissenting).

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 Finally, we note that in a “supplemental memorandum brief” filed almost two

months after his reply brief, Black argues for the first time that the district court should

have appointed an interpreter for a second government witness, Alice Begay, who was

also Black’s sister. Failure to raise an issue in the opening appellate brief waives that

issue. United States v. Minjares-Alvarez, 264 F.3d 980, 984 n.2 (10th Cir. 2001). Even

if we would consider the issue, it is apparent from the record that Begay, like Lee, was

fluent in the English language and her inability to answer some questions was due to her

lack of recollection.

Fainting juror – removal

Black argues the juror who fainted should have been removed as a juror and

replaced with an alternate. According to Black, the juror’s “fainting during trial made it

clear that she was unable to continue.” Aplt. Br. at 18. Further, Black contends the

incident “had to have affected the ability of the other jurors to remain objective and

impartial, particularly since [the juror] was allowed to remain on the jury.” Id. at 19.

Federal Rule of Criminal Procedure 24(c)(1) authorizes district courts to replace

“any jurors who are unable to perform or who are disqualified from performing their

duties.” “[T]he decision whether to excuse a juror rests on whether the juror can remain

impartial, a matter of fact uniquely within the observation of the trial court.” United

States v. McVeigh, 153 F.3d 1166, 1185 (10th Dir. 1998). “[W]e give due deference to

jurors’ declarations of impartiality and the trial court’s credibility determination that those

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declarations are sincere.” Id. at 1184.

The district court questioned the jurors and they all affirmed that their impartiality

was not affected by the fainting incident. Moreover, Black fails to explain why he

believes the juror’s fainting indicates her bias or inability to remain objective or impartial.

Her fainting merely indicates that she was disturbed by the gruesome nature of the

photograph, not any particular bias on her part. Black has failed to direct our attention to

any logical connection between the juror’s reaction to the photograph and her ability to

evaluate his mental state at the time of the murders – the only issue at trial. Further, since

government counsel agreed not to admit any additional photographs, the juror’s fainting

was not an indication of her inability to continue or an indication that her continued

presence would be disruptive.

Finally, Black relies on the district court’s random draw procedure for the

designation of alternates just prior to jury deliberations as support for his argument that

the juror who fainted could have been easily removed.2 According to Black, due to the

district court’s use of the procedure, two jurors had to be dismissed prior to deliberations

and “[c]ommon sense dictates” that the fainting juror should have been one of those

jurors. Aplt. Br. at 20. We fail to see how the district court’s use of the random draw

procedure is relevant to our inquiry. The question before us is whether the district court

2
The court’s use of the random draw procedure has not been raised as an issue in
this appeal.

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abused its discretion by allowing the juror to continue as part of the jury panel. In the

absence of any viable claim of bias or lack of objectivity or impartiality, we conclude the

district court did not abuse its discretion in allowing the juror to continue.

Fainting juror – mistrial

Black argues the district court violated his Sixth Amendment right to a fair trial by

failing to declare a mistrial after the juror fainted. When a mistrial motion is based on the

assertion that “disruptive incidents” have prejudiced the jurors, the standard is whether

there has been “an impingement upon the right of the appellant to be tried before a fair

and impartial jury.” United States v. Evans, 542 F.2d 805, 815 (10th Cir. 1976) (internal

quotations omitted). We review a trial court’s denial of a motion for mistrial for an abuse

of discretion. United States v. Meienberg, 263 F.3d 1177, 1180 (10th Cir. 2001).

In Evans, we affirmed the district court’s denial of three separate defense motions

for mistrial. The motions followed three disruptive incidents during trial. The first

motion was made after a juror notified the court that he had received a letter signed by

one of the defendants. The court questioned the jurors individually in chambers and

collectively in open court and the jurors indicated they had not been influenced. The

second motion was made after a defendant blurted out the fact that a bomb threat was

received in the courthouse. The court instructed the jury to disregard the remark. The

third motion was made after a witness “lunged into the jury box,” landing in a juror’s lap.

Id., 542 F.2d at 815. The court examined each juror individually regarding the incident

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and each juror responded that the incident would not affect his or her judgment. In

affirming, we noted (1) that the jury had been “questioned extensively,” (2) they

“repeatedly responded that the incidents would have no effect on their impartiality,” (3)

the district court had “repeatedly stated that the incidents were not to be held against the

[defendants].” (4) the district court “formally instructed the jury to disregard the

incidents,” and (5) a “diversity of the verdicts” returned by the jury supported the

conclusion that the jury deliberated impartially. Id. Contrary to Black’s assertions, Evans

does not establish mandatory measures that must be taken in response to any disruptive

incident during the course of a jury trial. In Evans, we merely concluded there was “no

error in the manner in which the trial judge handled the incidents.” Id. at 816. We did

not indicate that the court would have erred if it had responded differently.

Further, the incident in this case was significantly different in nature than the three

incidents in Evans. Here, the measures taken by the district court were adequate in light

of the nature of the disruption involved. The court questioned the juror and the rest of the

jury panel and there is no indication in the record that the jury’s impartiality was affected.

Moreover, as in Evans, the court instructed the jury not to consider the incident in its

deliberations. Black argues the court erred by failing formally to instruct the jury to

disregard the incident in the jury instructions read at the close of evidence. We disagree.

Instead of drawing attention to irrelevant matters in the formal jury instructions, the

district court focused the jury’s attention on what was relevant. In several instructions,

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the court focused the jury’s attention on the evidence presented at trial. See, e.g., ROA,

Vol. I, Doc. 100, Instr. 2 (stating “[y]ou have been chosen as jurors in this case to try the

issues of fact presented . . . . The law does not permit jurors to be governed by sympathy,

prejudice, or public opinion”); Instr. 3 (stating, “[t]he evidence in this case consists of the

sworn testimony of the witnesses . . . and all exhibits received in evidence . . . and all

facts which may have been admitted or stipulated”). Further, we are to assume that juries

follow their instructions. See Zafiro v. United States, 506 U.S. 534, 540 (1993). When

the juror’s fainting and the court’s response to the incident are viewed in context, we

conclude the district court did not abuse its discretion in denying Black’s motion for

mistrial.

AFFIRMED.

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