United States v. Dominguez

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
____________________________ SEPTEMBER 13, 2000
THOMAS K. KAHN
CLERK
No. 99-4200
____________________________

D.C. Docket No. 96-00976-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EFRAIN DOMINGUEZ,

Defendant-Appellant.
_____________________________

Appeal from the United States District Court
for the Southern District of Florida
_____________________________

(September 13, 2000)

Before ANDERSON, Chief Judge, CARNES and RONEY, Circuit Judges.

CARNES, Circuit Judge:
 After having been convicted by a jury on multiple counts involving

participation in a cocaine distribution organization and mortgage fraud, Efrain

Dominguez appeals, contending that the district court erred: 1) by permitting the

mortgage fraud-related charges to be joined with the drug-related charges under

Rule 8(a) of the Federal Rules of Criminal Procedure; and 2) by failing to grant a

mistrial or, in the alternative, by failing to adequately investigate indications that

the jury had engaged in premature deliberations. We are unpersuaded by either

contention and affirm his convictions.

I. BACKGROUND

Efrain Dominguez was charged by superseding indictment with twenty-eight

counts of conspiracy to possess cocaine with intent to distribute, in violation of 21

U.S.C. § 846; conspiracy to money launder, in violation of 18 U.S.C. § 1956(h);

money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A) and (B); use of a

telephone facility in commission of a felony, in violation of 21 U.S.C. § 843(b) and

(d); and mortgage fraud, in violation of 18 U.S.C. § 1014.1 The charges break

down into two general sets of crimes – one set involving participation in a cocaine

1
The indictment also sought forfeiture of any property constituting, or derived from, any
proceeds of Dominguez’s violations of 21 U.S.C. § 846, 21 U.S.C. § 843(b) and (d), 21 U.S.C. §
1956(h), and 21 U.S.C. § 1956 (a)(1). The government dismissed the forfeiture counts at the end
of the trial, and they are not at issue in this appeal.

2
distribution organization (Counts 1-24), and the other involving mortgage fraud

(Counts 25-28).

Before trial, Dominguez filed a motion to sever the mortgage fraud-related

charges pursuant to Rule 8(a) and Rule 14 of the Federal Rules of Criminal

Procedure. The government opposed severance on the ground that the drug-related

charges and mortgage fraud-related charges were properly joined under Rule 8(a)

as “acts or transactions connected together or constituting parts of a common

scheme or plan.” Fed. R. Crim. P. 8(a). The government argued that proof of the

drug-related charges provided the motive and necessity for the mortgage fraud-

related charges. The district court denied Dominguez’s motion for severance.

The case was tried before a jury in June 1998. On the eighth day of the

nine-day trial, before the government had finished presenting its case, the court

received a note from a juror asking to be excused. The court questioned the juror

in the presence of both sides, and it became apparent from the juror’s answers that

at least some of the jurors had already been discussing whether Dominguez was

guilty. The district court denied Dominguez’s counsel’s request to be permitted to

question the juror himself, and it denied his request for a mistrial on the basis of

premature deliberations.

3
 Before the jury returned a verdict, it sent a note to the court explaining that it

was unable to reach a decision on the five money laundering counts (Counts 2-6).

Over an objection by Dominguez, the court decided to accept a partial verdict on

the counts upon which the jury was able to agree. The jury found Dominguez

guilty on all counts except the five money laundering counts. The government

then dismissed those five counts.

Following the jury’s verdict, Dominguez moved for a judgment of acquittal,

or in the alternative, for a new trial based in part upon the court’s pretrial denial of

his severance motion and in part upon the evidence of premature deliberations by

the jury. The district court denied Dominguez’s motion. The court sentenced

Dominguez to 188 months of imprisonment and five years of supervised release.

On appeal, Dominguez argues that the district court erred by denying his

motion to sever the drug-related charges and mortgage fraud-related charges under

Rule 8(a) of the Federal Rules of Criminal Procedure, and by failing to grant a

mistrial or, in the alternative, to adequately investigate the indications that the jury

had started deliberating the case before the closing instructions or even the

completion of the evidence.2

2
Dominguez also contends that the district court’s refusal to permit him to re-cross examine
a witness about evidence he argues was introduced during re-direct examination of that witness
violated the Confrontation Clause of the Sixth Amendment. We find no merit to that contention
and affirm the district court’s ruling on it without further discussion.

4
 II. DISCUSSION

A. Whether the District Court Erred by Denying the Motion to Sever the Drug-
Related Charges and Mortgage Fraud-Related Charges as Improperly Joined Under
Rule 8(a)

Dominguez contends that the drug-related charges and the mortgage fraud-

related charges in the indictment were misjoined under Rule 8(a), and for that

reason the district court erred in denying his motion to sever the two sets of

charges.3 Rule 8(a) allows “[t]wo or more offenses [to] be charged in the same

indictment . . . in a separate count for each offense if the offenses charged . . . are

of the same or similar character or are based on the same act or transaction or on

two or more acts or transactions connected together or constituting parts of a

3
In the district court Dominguez moved for severance on grounds of improper joinder under
Rule 8(a) and also sought it as relief from prejudicial joinder pursuant to Rule 14. However, on
appeal he has emphatically abandoned any Rule 14 arguments and issues, choosing to stake his
position solely on Rule 8(a). In his reply brief, Dominguez goes so far as to chide the
government for discussing Rule 14, saying on the opening page of his reply brief that: “The
fundamental flaw in the government’s argument on this issue is that the government apparently
does not understand the difference between Federal Rules of Criminal Procedure 8 and 14. The
government’s entire argument is premised on the standards applicable to denial of severance
under Rule 14, even though Appellant has only raised the denial of his motions under Rule 8.”
Appellant’s Reply Br. at 1; see also id. at 9 n.4 (arguing that the government could not take any
comfort from Dominguez’s failure to raise his desire to testify as to only one set of the charges
as a basis for error on appeal, because “the defendant’s desire to testify as to only one of the
joined charges is a basis for severance only under Rule 14, not Rule 8(a).”). Like Dominguez,
we will not discuss Rule 14. See generally United States v. Wilson, 894 F.2d 1245, 1252 (11th
Cir. 1990) (evaluating alleged violations of Rule 8 and Rule 14 separately because the analysis
involves different standards).

5
common scheme or plan.” Fed. R. Crim. P. 8(a). In United States v. Weaver, 905

F.2d 1466 (11th Cir. 1990), this Court explained that:

Rule 8 is broadly construed in favor of the initial joinder. The
question of whether initial joinder is proper under Rule [8] is to be
determined before trial by examination by the trial court of the
allegations stated on the face of the indictment. . . . Thus, we must
first look to the indictment in order to determine if appellants’ initial
joinder was proper under Rule [8]. If improper joinder under Rule [8]
occurred, reversal is not required if the misjoinder was harmless error.
The improper joinder is harmless unless it results in actual prejudice
because it had substantial and injurious effect or influence in
determining the jury’s verdict.

Id. at 1476-77 (analysis of Rule 8(b)) (internal quotations and citations omitted).

Dominguez argues that the drug-related charges and mortgage fraud-related

charges were misjoined because nothing on the face of the indictment tied the two

groups of charges together, and the evidence presented at trial with respect to the

two groups of charges did not overlap. We agree with Dominguez that, looking

solely to the four corners of the indictment, there is no explicit connection between

the groups of charges. Drug distribution charges and mortgage fraud charges are

not of the “same or similar character.” Nor do the charged offenses appear to be

“based on the same act or transaction.” The counts containing the mortgage fraud

charges make no reference to the preceding counts containing the drug charges or

to any drug-related activity.

6
 However, when Dominguez moved before trial for severance of the drug-

related and mortgage fraud-related charges, contending that they were misjoined

under Rule 8(a), the government responded that the charges were properly joined

for two reasons. First, the government stated that “proof of the [drug-related

charges] provides the motive and necessity for the [mortgage fraud-related

charges.]” Second, the government submitted that “both sets of charges will

involve the presentation of the same evidence to the jury.”

The first reason proffered by the government, taken alone, furnishes the

necessary relationship between the two groups of charges: The charged offenses

were “acts or transactions connected together or constituting parts of a common

scheme or plan,” which makes joinder proper under Rule 8(a). According to the

government’s theory of the case, which was later supported by the trial evidence,

Dominguez submitted fraudulent income tax returns when applying for mortgage

loans in order to conceal the fact that his income had been derived from drug

activity. Regardless of whether both sets of charges involve the presentation of the

same evidence, the fact that one illegal activity provides the impetus for the other

illegal activity is sufficient to constitute a common scheme for joinder purposes.

In United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982), the appellants

argued that the tax offenses charged against them in the indictment, which included

7
filing false income tax returns, were improperly joined under Rule 8 with the non-

tax offenses, which included racketeering, conspiracy to engage in racketeering,

extortion, and receipt of kickbacks in connection with a labor matter. Id. at 1295,

1312. This Court concluded that joinder under Rule 8(b) was proper.4 We

reasoned that:

[t]he tax offenses were . . . part of a series of acts committed in
furtherance of the overall conspiracy. In the case of the unreported
income received by [two of the appellants], the filing of false income
tax returns operated to maximize the benefits enjoyed as a result of
their participation in the conspiracy and, of course, facilitated their
efforts to avoid detection of the criminal enterprise. As for the
fraudulent deductions claimed on behalf of [a corporation involved in
the offenses], the preparation of false corporate income tax returns
enabled [other appellants] to minimize the adverse financial impact of
the illegal payoffs they were making in order to acquire . . . business.

Id. at 1314. See also United States v. Yefsky, 994 F.2d 885, 895 (1st Cir. 1993)

(“[T]he tax fraud and mail fraud counts could be joined [under Rule 8(b)] because

some of the unreported income was the fruit of the mail fraud scheme.”); United

States v. Wirsing, 719 F.2d 859, 862-63 (6th Cir. 1983) (drug charges were

properly joined under Rule 8(a) with tax evasion charges when the government

“contend[ed] that the income that was not reported on [defendant’s] return for the

4
Rule 8(a) governs the joinder of multiple offenses, and Rule 8(b) governs the joinder of
multiple defendants. Fed. R. Crim. P. 8; see also United States v. Gentile, 495 F.2d 626, 628 n.2
(5th Cir. 1974). Rule 8(a) establishes a “more lenient standard” for joinder than Rule 8(b),
Gentile, 495 F.2d at 628 n.2, and for the purposes of our discussion of Rule 8(a), the governing
principles are the same.

8
years in question was derived from his illegal activity in the conspiracy to

distribute drugs” and proof of tax evasion was indirect net worth method). But cf.

United States v. Randazzo, 80 F.3d 623, 627 (1st Cir. 1996) (charges for

misbranding shrimp were not properly joined under Rule 8 as part of “a common

scheme or plan” with tax fraud charges because “it was pure happenstance whether

the overstated expenses [on the fraudulent tax returns] happened to overstate legal

income or illegal income [which was derived from increased profits due to

misbranding of shrimp] of the [c]ompany.”); United States v. Halper, 590 F.2d

422, 429 (2nd Cir. 1978) (Rule 13 consolidation) (charges were not properly joined

as “connected together or constituting parts of a common scheme or plan” despite

the government’s argument that “[the defendant’s] scheme to defraud the Medicaid

system produced the income which he then failed to report on his personal income

tax returns” because “the government concede[d] that the sums charged in the

income tax evasion indictment were not the same funds embraced in the Medicaid

fraud indictment.”). Under our Kopituk decision, the drug-related and mortgage

fraud-related charges in this case were properly joined under Rule 8(a).

We reach that conclusion with full awareness that this Court has repeatedly

said that whether joinder is proper under Rule 8 is to be determined by examining

the allegations in the indictment alone. See, e.g., United States v. Morales, 868

9
F.2d 1562, 1567-68 (11th Cir. 1989) (concluding that joinder of parties was proper

under Rule 8(b), because the indictment named all defendants-appellants in a single

conspiracy count: “[W]e will look only to the indictment in order to determine if the

appellants’ initial joinder was proper under Rule 8(b).”); United States v. Wilson,

894 F.2d 1245, 1253 (11th Cir. 1990) (concluding that joinder of parties was proper

under Rule 8(b), because offenses as alleged in the indictment were factually

similar and those allegations showed a substantial overlap of participants: “We

recently established that we examine only the allegations on the face of the

indictment to determine if the appellants’ initial joinder was proper under Rule

8(b).” (citation omitted)); United States v. Weaver, 905 F.2d at 1476.5 If that

principle applied here, Dominguez would have a much stronger case for misjoinder

under Rule 8(a), because the indictment in this case does not explicitly allege any

connection between the two groups of charges, although it may implicitly indicate

a connection. Even assuming that the indictment in this case standing alone does

5
In Weaver, we held that the initial joinder of parties was improper under Rule 8(b)
because the defendants-appellants were charged only in a cocaine conspiracy. The indictment
had also charged a marijuana conspiracy, which, as the government conceded, represented a
separate transaction. After examining the face of the indictment, we explained that the
“conspiracies did not overlap temporally” and only two of the nine defendants who went to trial
were charged with the marijuana conspiracy. See Weaver, 905 F.2d at 1477. Notwithstanding
the misjoinder, the convictions were affirmed on harmless error grounds. See id. at 1478. The
misjoinder was rendered harmless because the trial court severed the marijuana charges from the
cocaine charges during the fifth day of testimony, and gave cautionary instructions to the jury
when it proceeded with the trial of the cocaine charges. See id. at 1478.

10
not indicate a sufficient connection between the two sets of charges to justify

joinder under Rule 8(a), joinder was still proper. We say that because after

examining our decisions we do not believe the “indictment only” rule applies to

invalidate joinder, instead of to justify it.

In the cases where we have relied on the indictment alone to establish the

propriety of initial joinder, the defendant-appellant was arguing that evidence

adduced during trial showed that joinder was improper even though under the

allegations of the indictment alone joinder would have been proper. See, e.g.,

Morales, 868 F.2d at 1567 (challenging joinder of parties under Rule 8(b) when one

of defendants was acquitted on conspiracy count); United States v. Fernandez, 892

F.2d 976, 984-85 (11th Cir. 1989); United States v. LaSpesa, 956 F.2d 1027, 1031-

32 (11th Cir. 1992); United States v. Kabbaby, 672 F.2d 857, 860-61 (11th Cir.

1982).6 Dominguez, on the other hand, argues that the indictment shows that

6
In Fernandez, the defendant-appellant “argue[d] that the government’s proof [at trial]
established two conspiracies instead of the single conspiracy charged in the indictment” and that
joinder of the multiple defendants was improper under Rules 8 and 14. Fernandez, 892 F.2d at
984. We stated that the propriety of joinder under Rule 8(b) was to be determined “by
examining the allegations contained in the indictment,” and that the indictment alleged a single
conspiracy. Id. at 985. Accordingly, we concluded that the defendant-appellant’s Rule 8 “claim
probably would be meritless” and that a “misjoinder or prejudicial joinder claim based on
evidence adduced at trial ... falls under Rule 14 . . . .” Id.

In LaSpesa, the defendants-appellants contended that the trial evidence was insufficient
to show one conspiracy, and that the district court thus erred by denying their Rule 8 misjoinder
motion and their Rule 14 severance motion. LaSpesa, 956 F.2d at 1031. We stated that joinder
was proper “[b]ecause the indictment sufficiently alleged that all of the defendants were

11
joinder was improper, even though looking to the government’s representations

before trial, which were borne out in the evidence presented during trial, we know

that joinder was proper.

The rationale behind the indictment only rule makes sense when the

indictment evidences the requisite connection between the charges, but the evidence

at trial takes an unexpected turn that vitiates the basis for joinder. As we have

explained:

The difficulty we see in allowing a court to analyze a Rule [8] claim
based on the evidence adduced at trial is that it permits a reviewing
court to conclude that initial joinder was improper based on
information that was not and could not have been known to the
prosecutor at the time the indictment was brought. We do not believe
that it is appropriate to make a Rule [8] determination that initial
joinder was improper simply because the government failed to prove
all of the facts alleged in the indictment.

Morales, 868 F.2d at 1568 (Rule 8(b) analysis). That reasoning shows not just why

the indictment only rule exists, but also why that rule is not applicable to situations

involved ‘in the same series of acts or transactions constituting an offense or offenses.’” Id. at
1032.

In Kabbaby, the defendant-appellant challenged the propriety of joinder of one count,
upon which he was convicted, with multiple other counts involving other defendants, upon
which he was acquitted. He argued that the record as it pertained to the count upon which he
was convicted was devoid of any connection to the other defendants. Kabbaby, 672 F.2d at 859-
60. We held that joinder was proper based upon the face of the indictment, stating that “[the]
failure of the jury to convict [the defendant-appellant] of participating in the broader conspiracy
of which the [single count] was a part does not require retroactive invalidation of the joinder.”
Id. at 860-61.

12
when the evidence proffered by the government before trial or adduced during trial

shows that initial joinder was proper even though the indictment may not have

explicitly stated the connection between the charges. It is enough that when faced

with a Rule 8 motion, the prosecutor proffers evidence which will show the

connection between the charges. See United States v. Halliman, 923 F.2d 873

(D.C. Cir. 1991).7 If the indictment fails to show and the prosecutor fails to proffer

a sufficient basis in the expected evidence to justify joinder, then a severance

should be ordered.8

7
The rule in the D.C. Circuit is that “the government need not demonstrate the propriety of
its joinder decisions on the face of the indictment. . . . Rather, the government need only present
evidence before trial” sufficient to establish that joinder is proper. Halliman, 923 F.2d at 883
(citations omitted). In Halliman, the government joined the appellants in an indictment pursuant
to Rule 8(b), but did not indict the appellants in any common counts. Despite that failure, the
court found joinder proper because the government, in a pre-trial hearing, presented evidence of
a connection between the charged offenses. See id. at 883-84.

In the course of reaching that conclusion, the D.C. Circuit pointed to our circuit as an
example of one which examines only the allegations in the indictment to determine the propriety
of joinder under Rule 8(a), and thought that we disagreed with its rule permitting the government
to proffer or present sufficient evidence at any time before trial. See id. at 883 n. 7. The D.C.
Circuit is only partially correct in its interpretation of our law. As we explain today, when the
defendant attempts to show joinder is improper by pointing to later evidence, we look only to the
face of the indictment. However, when the defendant attacks joinder as improper based on the
indictment but later evidence shows that joinder is proper, we look beyond the face of the
indictment.
8
Rule 8 “requires only that the government ‘allege,’ not prove, the facts necessary to sustain
joinder.” Halliman, 923 F.2d at 883. The failure of the government to prove those facts at trial
does not mean joinder was improper, provided the allegations are made in good faith. See id.;
Morales, 868 F.2d at 1568 (“We do not believe that it is appropriate to make a Rule 8(b)
determination that initial joinder was improper simply because the government failed to prove all
of the facts alleged in the indictment.”); Gentile, 495 F.2d at 632 (reading Schaffer v. United
States, 362 U.S. 511, 80 S. Ct. 945 (1960), as holding that “even though initial joinder of

13
 Here, the evidence showed that joinder was proper. The government’s

response to Dominguez’s motion to sever explained why the two groups of charges

were properly joined: Concealing income from the drug activity was the motive for

the mortgage fraud. The evidence at trial supported that position, as the

government’s closing argument pointed out to the jury.9 In other words,

offenses prior to trial was based solely on the alleged existence of a conspiracy, the subsequent
failure to prove the conspiracy at trial did not constitute misjoinder” under Rule 8); Kabbaby,
672 F.2d at 860-61 (“Contrary to defendant’s argument, failure of the jury to convict him of
participating in the broader conspiracy of which [the drug transaction upon which he was
convicted] was a part does not require retroactive invalidation of the joinder.”). The indictment
only rule is inconsistent with any notion that failure to prove a good faith representation about
what the evidence will show establishes improper joinder. In any event, in this case the
government proved at trial the basis it had proffered for the joinder.
9
The pertinent part of the government’s closing argument follows:

Now, let’s talk for a minute about the false statement counts,
government’s – the counts in the indictment were counts 25 through 28.
The false statement counts tell you a lot about this defendant, about Efrain
Dominguez. The evidence on those counts shows that he made false statements
to these banks in an effort to influence the banks to give [him] loans. . . .
This is the 1990 return. Here is the 1989 return that he submitted to the
banks. ... And you heard testimony that these are forgeries. The IRS has never
seen them. Never heard about these tax returns. . . .
So why does he do this? Why? It is very simple why he does this. If he
goes into this bank showing the kind of money he has made from cocaine
trafficking, four years out of law school, worth $3 and a half million, you show
that kind of money and those kind of assets that he has got, with his true
legitimate income of 20 grand or 30 grand, he is in big trouble. . . .
So what does he do? Well, he creates plausible tax returns, plausible
returns that don’t – that will pass the laugh test. You look at them, you go, oh,
okay, he makes 75 or 85, okay. That’s, you know, that makes sense with this
income.
And that is really the problem with cocaine, folks. You make so much
money that it is impossible to justify what you have. . . .
This is proof beyond any reasonable doubt that he committed these
mortgage frauds. . . .

14
Dominguez invites this Court to ignore both the government’s response to his

motion to sever, and the realities of the evidence and argument made at trial, all of

which established the propriety of joinder. Because the indictment only rule upon

which Dominguez relies does not apply in the context in which he seeks to invoke

it, we decline his invitation. Because we hold initial joinder under Rule 8(a) was

proper, it is unnecessary to discuss whether Dominguez showed actual prejudice.10

B. Whether the District Court Abused Its Discretion by Failing to Adequately
Respond to Allegations That Jurors Had Engaged in Premature Deliberations

Dominguez also argues that he was denied his constitutional right to a fair

trial by an impartial jury, because the jury began deliberations even before the

government finished presenting its case. Dominguez contends that the district court

10
An alternative way to approach Dominguez’s claim would have been to look first to
whether there was any prejudice from the joinder, assuming that it was improper. This Court has
stated:

[T]he question of whether it is proper to restrict a Rule [8] inquiry to the
indictment is largely academic because in deciding whether reversal is required,
assuming the joinder was improper, the reviewing court must necessarily look to
the evidence adduced at trial to determine whether the defendant has been
prejudiced. Thus, in many instances, a reviewing court may simply look to the
prejudice component of defendant’s claim and only in the rare case where the
defendant has demonstrated prejudice will the court be required to address the
issue of whether the joinder was actually proper.

Weaver, 905 F.2d at 1477 (analysis of Rule 8(b)) (internal quotations and citations omitted).
Because we have concluded that joinder of charges was not improper, we need not decide
whether he could have established prejudice if joinder had been improper.

15
abused its discretion by denying his motion for a mistrial on this ground, or in the

alternative, that it did so by not investigating the alleged jury misconduct more

thoroughly to determine the extent of the prejudice to him.

Under the Sixth Amendment, every defendant in a criminal prosecution has a

right to trial by “an impartial jury.” U.S. Const. amend. VI. A jury’s impartiality is

endangered by colloquy among jurors about the case prior to the beginning of

formal deliberations. See United States v. Yonn, 702 F.2d 1341, 1345 n. 1 (11th

Cir. 1983). The danger is that “such conversations may lead jurors to form an

opinion as to the defendant’s guilt or innocence before they have heard all of the

evidence, the arguments of counsel, and the court’s instructions.” Id. That is why

juries are typically instructed at the beginning of the trial and periodically

throughout it not to discuss the case among themselves until permitted to do so at

the completion of the evidence and closing instructions.

The problem in this case came to the attention of the district court on the

eighth day of the nine-day trial, before the government had finished presenting its

case. The court received a note from a juror stating: “I do not feel that I can

adequately fulfill my duties as a juror and ask that I be excused.” Counsel for both

sides suggested that the court bring the juror out and ask her what she meant by the

16
note. The court agreed and interviewed the juror on the record in the presence of

counsel for the parties. That interview went as follows:

The Court: Good morning . . . . I have received your note. While don’t
tell me anything specific about your thoughts about this case, but will
you explain to me what you mean by the note? Why do you feel you
can’t continue as a juror?

Juror: I had not realized before that it would be – that there would be
much – as much entailed in terms of making a judgment. And I feel
inadequate to make – or to be a part of this process. I do.

The Court: . . . Is there something in particular – again, not about this
case, but that causes you to have that feeling?

Juror: It has something to do with some of the discussion that has been
going on in the jury room, and I just see things quite differently, and I
feel that it can be detrimental to the process.

....

The Court: So you believe you may disagree with others, is that what
you are saying?

Juror: Yes. . . .

....

The Court: Well, laying aside the other jurors, what is it about yourself
that causes you to –

Juror: Because I suppose that my level of doubting of – my level of
questioning is a little more than the average level.

....

17
 The Court: . . . What I am trying to respond to is your feeling that you
are not up to the task, that part of your sentiment.

Juror: Well, I suppose – I think in terms of the discussion that has gone
on so far, I may say things so differently that perhaps I am questioning
my own interpretation and my own ability to interpret.

Following that colloquy with the juror the court had a side bar conference

with the attorneys and solicited their recommendations about how to proceed.

Dominguez’s attorney requested that the court ask the juror what deliberations had

been going on, and suggested that if the jury had been deliberating contrary to the

court’s instructions, “then we are moving for a mistrial. That’s what it sounds like

to me.” Counsel for the government argued that nothing the juror had said

indicated any deliberations had taken place although there might have been some

“small talk,” which he said was inevitable, and he urged the court not to inquire

further about whether deliberations had occurred. Dominguez’s counsel argued that

for the juror to say that her opinions differed from those of others on the jury

obviously meant that there had been some deliberations, because “why else would

she be finding that she – her viewpoints are different than everybody else or a

majority of people unless they have been discussing them?”

When the court inquired as to the parties’ positions about excusing the juror

from any further service, counsel for the government urged the court to remove her

because she had indicated during voir dire that she might have a problem with
18
sitting in judgment of another person, and her latest comments established that she

did have a problem in that respect. Dominguez’s attorney argued against removing

the juror, but moved for a mistrial on the ground that the jury had not followed the

court’s instructions to refrain from deliberating.

After reading some decisions relating to the matter, the district court decided

to question the juror further. That additional questioning and the answers it elicited

are as follows:

The Court: I want to talk further with you about the note you sent me
and why you believe you can’t – why you are asking to be excused.

Have you come to a conclusion about this case at this point or
do you believe you can wait until the end of the case and form your
decision?

Juror: Others have –

The Court: Let me finish. Let me ask you a question.

Can you wait until the end of the case to decide your view and
come to your conclusion?

Juror: Definitely.

The Court: And you can be fair and impartial to both sides?

Juror: I am working on it.

The Court: The opinion and view of each juror is important and
deserves to be considered. What is it that causes you to believe that
you can’t perform as a juror in this case?

19
Juror: It is a question of the final analysis of guilt and innocence and
the disposition of someone’s life that is a very big deal. And I will
have to live according to my conscience if a decision is made
incorrectly, if I have somehow done something, made a wrong
decision, I will be living with that decision.

The Court: What is it about yourself that causes you to believe that you
can’t do that in this case?

Juror: I feel that the prosecution is very, very heavy-handed so I am
slightly biased in the other direction, if that is quite – I feel that I have
always been for the underdog. . . . And it is the underdog that I am
generally attempting to do something for. So I have to work against
that bias. I knew that to start out with.

The Court: But you yourself just told me that you felt you could wait
until the end of the case, deliberate with other jurors and come to a
conclusion. What is it that causes you to believe you can’t do that, if
there is anything?

Juror: I think – okay. I am questioning my ability to interpret the facts
because what I am hearing – we do have others as a sounding board,
and I am questioning my own ability to be objective. That is what I am
questioning at this point. I am questioning my subjective coloration of
what is going on.

....

The Court: Is this an internal struggle with your own mind or is this
being caused by anyone else, any other juror, for example?

Juror: There is apparently general consensus —

The Court: Again, I don’t want to know their deliberations, but I may
need to know what people have said to you that is causing this problem
in your mind. Let me – Have there been discussions about the facts of
this case among the jurors?

20
Juror: Well, certainly.

The Court: Have some jurors said to you they have come to a
conclusion?

....

Juror: I think that – from what I have seen, I think a fairly general
consensus is already there.

The Court: Are you interpreting what people are saying or are you –

Juror: It is fairly clear what people are –

The Court: From comments people have made to you?

Juror: Yes. In the room.

....

The Court: . . . What I want [to] know is, whether or not you can
continue to deliberate and come to that conclusion both yourself and as
a group. I need to know that in terms of you. I also need to know
whether or not the jury has jumped the gun and begun deciding the
case now as opposed to waiting until the end of the case when you can
talk to each other and come to a conclusion.

Juror: It is a very, very conscious jury. And again, I feel that, perhaps,
there has been a little – everyone is waiting until the end. However, we
talk. And everyone there is very conscientious. Everyone is very
anxious to, I think, deliberate with all honesty.

....

The Court: Has anyone told you they have made up their minds?

Juror: Not, per se.

21
The Court: Do you believe you can continue to deliberate and come to
a conclusion both individually and with the other members of the jury?

Juror: Everyone is working very hard on this case. There is a definite
– this is a really interested jury.

The Court: That question was directed to you. Can you do that?

Juror: To the best of my ability, but I don’t think I am seeing things
quite –

The Court: Well, that is part of the process. At times people may not
see things differently. But what we ask as a juror, will wait until the
end of the case, will hear all the evidence, will decide themselves, will
communicate with other jurors to reach a group decision if possible . . .
. And the question is, can you do that?

....

Juror: I can definitely do that. I just want justice to be served as well.
And if I am incapable of – for whatever reason of – I had wanted to
disqualify myself because I wasn’t certain that I could be objective.

The Court: You mean at the outset?

Juror: No, at the outset I was fairly convinced I could be.

The Court: Where are you now at this stage?

Juror: Yes.

The Court: But my question now is, do you believe you can continue
and wait until the conclusion of the case to come to an internal
decision, deliberate with the others and participate in the decision of
this jury?

Juror: Yes.

22
 Dominguez’s counsel then requested permission to question the juror further,

arguing that the additional questioning the court had conducted made it clear that

there had been some deliberations. He said he wanted to ask questions about the

dialogue that had been going on among the jurors, what deliberations had occurred,

and what conclusions had been reached. Counsel for the government opposed any

further inquiry, pointing out that the juror had said that everyone was waiting until

the end to decide the case and that no one had told her they had made up their

minds. He suggested that the juror had simply been drawing inferences from

“signals or body language or who knows what, or offhand remarks that might be

one way,” but she had unequivocally told the court that the jury had not begun

deliberating and that no one had made up their minds as far as she knew. The court

agreed, explaining:

I asked those questions deliberately and I asked her
that specific question, and she responded that they had
not.

So I am concluding, based on my inquiry, that there
is not – there is – and I think I went pretty far in terms of
comments. I don’t believe there has been first
misconduct. I also believe that this jury can continue to
serve and that there is not a basis to excuse her based on
this record. And I don’t believe that it would be
appropriate to allow inquiry by counsel.

23
The court did ask counsel for Dominguez whether he had any additional questions

he would like the court to ask the juror. Counsel said he wanted the juror

questioned further about what discussion had been going on, including the decisions

or conclusions other jurors had reached and told her about. The court declined to

ask the juror any more questions about that, saying: “She said there had been no

decisions made. The jury was waiting.” The court believed that it had made

adequate inquiry.

Counsel for the government then asked the court to remove the juror from

any further service on the grounds that she had indicated she was biased against the

prosecution. The court declined, reiterating that “she explained her processes but

can wait until the end of the case” to come to a conclusion.

Counsel for Dominguez once again moved for a mistrial on jury misconduct

grounds, arguing that the jury had violated the court’s instructions by deliberating

and discussing the case and making decisions inappropriately. The government

again opposed that motion, and the court denied it. The court told the juror she

should continue her service, but instructed her not to discuss with other jurors the

questioning that had occurred.

The jury was brought back in the courtroom and proceedings continued.

Neither side requested that the court immediately instruct the jury about not

24
deliberating before the end of the case, and it did not do so. However,

approximately fifty transcript pages later, and before the jury was allowed to leave

the courtroom again, the court told the jury that they were going to break for lunch,

and it also instructed them as follows:

It is important, as I indicated to you at the outset, to
wait until the end of the case until we begin – until you
begin your deliberations. Keep an open mind to any
additional evidence until you get the instructions and
argument of counsel and then deliberate.

So I ask you not to discuss the case again with
anyone else or each other until we get to that point in the
process.

There were no objections to that instruction or any request for further instructions

on the subject. At the end of that trial day, the court instructed the jurors that it was

very important they not discuss the case with anyone.

The most salient aspect of the law in this area is the breadth of discretion

given to judges who are called upon to deal with the possibility of juror misconduct.

District court judges deal with jurors on a regular basis, and those judges are in the

trenches when problems arise. The problems that present themselves are seldom

clearly defined and a number of variables have to be considered. There are often no

obviously right or wrong answers to the questions that arise. For all of these

reasons, a trial judge is vested with broad discretion in responding to an allegation

25
of jury misconduct, and that discretion is at its broadest when the allegation

involves internal misconduct such as premature deliberations, instead of external

misconduct such as exposure to media publicity. See Grooms v. Wainwright, 610

F.2d 344, 347 (5th Cir. 1980); Yonn, 702 F.2d at 1344-45; United States v.

Williams, 716 F.2d 864, 865 (11th Cir. 1983); United States v. Cuthel, 903 F.2d

1381, 1382 (11th Cir. 1990). In a number of decisions we have held that when a

jury problem involves the possibility of internal misconduct, the trial judge’s

“discretion extends even to the initial decision of whether to interrogate the jurors.”

Yonn, 702 F.2d at 1345; accord United States v. Harris, 908 F.2d 728, 733-34 (11th

Cir. 1990); Cuthel, 903 F.2d at 1382-83. It is difficult, if not impossible, to

reconcile with those decisions Dominguez’s position that the district court in this

case abused its broad discretion by not interrogating the juror further about the

nature and extent of any discussions that had occurred about the case. The Yonn,

Harris, and Cuthel decisions foreclose any holding that the court’s questioning of

the juror in this case was so inadequate as to be an abuse of discretion. The same

reasoning and conclusion apply to the court’s refusal to permit counsel for

Dominguez to question the juror further.

We turn now to whether the district court abused its broad discretion by not

granting a mistrial on the basis of what the juror said in answer to the questions that

26
the court did ask. It is apparent from the juror’s answers to the judge’s questions

that there had been some discussion of the case among at least some of the jurors.

However, when asked specifically whether “the jury has jumped the gun and begun

deciding the case now as opposed to waiting until the end of the case,” the juror

said that “perhaps, there has been a little – everyone is waiting until the end,” but

“we talk.” From comments made to her she thought “a fairly general consensus is

already there,” but she did not say it had been arrived at after deliberations instead

of independently by each juror on the basis of the evidence heard so far. The juror

assured the judge that she could wait until the conclusion of the case and after

deliberations to reach a decision.

Based upon the juror’s answers, the district court found that there had not

been any juror misconduct, and we cannot say that conclusion, to the extent it

includes fact findings about whether any discussion that had occurred was

extensive, is clear error. We reiterate, what we have observed in the past, that the

district court is in a better position to evaluate credibility, see Grooms, 610 F.2d at

347, as well as “the mood at trial and the predilections of the jury.” Harris, 908

27
F.2d at 734; accord United States v. Bertoli, 40 F.3d 1384, 1393-94 (3rd Cir.

1994).11

While we conceivably might have followed a different course and even

arrived at a different result than the district court did if we had been presiding over

the trial of this case, we were not. The whole point of discretion is that there is

range of options open, which means more than one choice is permissible. The

broader the discretion, the greater the range of choice and the less room for reversal.

As we have explained before, “under the abuse of discretion standard of review

there will be occasions in which we affirm the district court even though we would

have gone the other way had it been our call. That is how an abuse of discretion

standard differs from a de novo standard of review.” In re Rasbury, 24 F.3d 159,

168 (11th Cir. 1994). Such a standard means that a trial court has “a range of

11
In Harris, the defendants alleged that a juror sitting in the jury box said “do it to him good”
as a witness for the prosecution was taking the stand to testify. Harris, 908 F.2d at 733. The
court chose not to investigate the remark. See id. at 734. On appeal, we held that the court had
not abused its discretion in declining to investigate because the meaning of the remark was
ambiguous and the district court was in a better position to judge whether the “statement . . .
reflect[ed] serious juror contamination.” Id.

In Grooms, the defendant’s mother allegedly overheard a remark by one juror at the close
of the state government’s case indicating that the juror had concluded the defendant was already
guilty, but she did not report the remark until after the jury rendered a guilty verdict. See
Grooms, 610 F.2d at 346-48. The court questioned the mother at a hearing attended by defense
counsel, and denied the defendant’s motion for a new trial. See id. at 347-48. We recognized
that “[a]fter hearing the mother’s testimony and observing her demeanor, the judge was in a
good position to evaluate her credibility,” and held that the denial of the defendant’s motion for a
new trial was not an abuse of discretion. Id.

28
choice . . . so long as that choice does not constitute a clear error of judgment.” Id.

(internal marks and citation omitted). We cannot say that, all things considered,

the district court’s decision not to grant a mistrial was a clear error of judgment.

Two facts about this case reinforce our conclusion. First, the court repeatedly

instructed the jurors, both before and after its investigation into the alleged jury

misconduct, that Dominguez was presumed innocent, that the jury should not

discuss the case until the evidence was completed, and that their verdict must be

based only upon the evidence presented at trial. When it concluded that the jury

should continue to serve, the court in essence concluded that the jury was capable of

correcting any misbehavior, of following the court’s instructions from that point on,

and of properly evaluating the evidence. As we said in Williams, 716 F.2d at 865,

“[t]he district court was in the best position to determine whether . . . the jury’s

discussion of the case prior to submission could be cured from error by instructions

as given.”

Second, the jury did reach a split verdict, convicting Dominguez of the drug-

related and mortgage fraud-related charges but failing to reach a verdict on the

money laundering charges. That split verdict evidences that the jury necessarily

must have considered the charges individually and assessed the strength of the

29
evidence as to each charge. The careful weighing of evidence inherent in a split

verdict makes the verdict itself “evidence that the jury reached a reasoned

conclusion free of undue influence and did not decide the case before the close of

evidence.” Cuthel, 903 F.2d at 1383.12 As the Third Circuit has acknowledged,

“when there are premature deliberations among jurors with no allegations of

external influence on the jury, the proper process for jury decisionmaking has been

violated, but there is no reason to doubt that the jury based its ultimate decision

only on evidence formally presented at trial.” United States v. Resko, 3 F.3d 684,

690 (3rd Cir. 1993).13 For all these reasons, we hold that the district court did not

12
In Cuthel, the defendants alleged that an anonymous telephone call and letter written by a
juror to the prosecutor, both received after the verdict, indicated jury contamination. See Cuthel,
903 F.2d at 1382. We concluded, among other things, that the letter did not indicate that
premature deliberations occurred. We then stated that the jury’s split verdict, acquitting the
defendants of some counts but convicting on others, was further evidence that the court’s
decision that the jury was free of undue influence and did not deliberate prematurely was not
clearly erroneous. See id. at 1383.
13
In Resko, on the seventh day of a nine-day trial, a juror told a court officer that, despite the
district court’s instruction to the contrary, the jury had been discussing the case. See Resko, 3
F.3d at 687. The district court “summoned the jurors en masse, informed them of the problem,
and then gave each a written questionnaire” asking if they had discussed the facts of the case and
if they had formed an opinion as to the guilt or innocence of the defendants. Id. at 688. The
Third Circuit concluded that, despite the district court’s broad discretion in handling allegations
of jury misconduct, its inquiry “was inadequate to ... determin[e] whether prejudice resulted from
the jury misconduct.” Id. at 691. Thus, it vacated the defendants-appellants’ convictions on two
counts and remanded for a new trial. See id. at 695-96.

Although we agree with the Third Circuit’s statement in Resko that the violation of the
proper process for jury decision-making does not necessarily mean that the jury has based its
decision on inappropriate factors, see id. at 690, for reasons apparent from our previous
discussion in this opinion, we disagree with its ultimate conclusion that the district court was
obligated to conduct further investigation under those circumstances. It seems to us that the

30
abuse its discretion by failing to grant a mistrial or by failing to investigate possible

jury misconduct more thoroughly.

VI. CONCLUSION

AFFIRMED.

Third Circuit applied in Resko an understanding of broad discretion that is different from our
own. Be that as it may, that circuit appears to have broadened the definition of “broad
discretion” in this area and retreated somewhat from Resko’s stringent standard for investigation
into jury misconduct. In Bertoli, 40 F.3d 1384, the district court, when it learned of possible
premature deliberations, chose to interview only four of the jurors. Id. at 1390. It dismissed
three of the jurors, see id., and denied the defendant’s request that it interrogate the other jurors.
See id. at 1395. Limiting the “holding [in Resko] to the facts of that case, facts which [it]
thought – and still think[s] – unlikely to recur,” the Third Circuit held that there was “no abuse
of discretion in the trial court’s handling of the allegations of jury misconduct . . . .” in Bertoli.
Id. at 1396.

31