United States v. Gaston Brito

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2117

UNITED STATES,

Appellee,

v.

RAFAEL GASTON-BRITO,

Defendant - Appellant.

No. 94-2118

UNITED STATES,

Appellee,

v.

DANIEL NU EZ,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr and Stahl, Circuit Judges.

Henry F. Furst for appellant Daniel N ez and Richard Ware

Levitt for appellant Rafael Gast n-Brito, were on joint brief.

Jos A. Quiles-Espinosa, Senior Litigation Counsel, Criminal

Division, U.S. Attorney's Office, with whom Guillermo Gil, United

States Attorney, was on brief for appellee.

August 30, 1995

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TORRUELLA, Chief Judge. Daniel N ez ("N ez") and
TORRUELLA, Chief Judge.

Rafael Gast n Brito ("Brito") appeal from jury convictions of

conspiracy to possess cocaine with intent to distribute and

possession of cocaine with intent to distribute, in violation of

21 U.S.C. 841(a)(1) and 846. Both Brito and N ez claim that

the district court erred when it failed to investigate an alleged

instance of jury misconduct, and that this failure necessitates a

new trial. For the following reasons, we reverse.

DISCUSSION
DISCUSSION

The focus of this case was a drug-trafficking ring

bringing cocaine from Puerto Rico to New York. The facts came to

light when one of the drug couriers, Harry Benjam n D az

("D az"), was arrested and agreed to cooperate with the

government.

D az offered detailed testimony that, from January 19,

1993 to January 26, 1993, he participated with N ez and Brito in

several successful and unsuccessful efforts to transport cocaine

from Puerto Rico to New York. In the course of his detailed

testimony, D az testified that on January 25, 1993, N ez paid

him $15,000 for successfully delivering a load of cocaine to New

York. During cross-examination, counsel for N ez asked D az

whether the government had required him to return the $15,000

N ez allegedly had given him. D az then testified that his wife

had been forced to give the money to unnamed persons, and that

the money was therefore no longer in his possession when the

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government asked him to surrender it. Specifically, he

testified:

I was asked to [turn over the money], but
when [the government] asked me my wife
had already told me they had ordered her
to give it to them. Who ordered it I
don't know, but they ordered it and if
she did not turn it over they threaten to
kill the little girl, but who ordered it
I don't know.

Immediately following this testimony, counsel for Brito

requested permission to approach the bench. He informed the

court that when D az was asked to identify the person or persons

who had taken the money from D az' wife, Steve Riley, the Case

Agent sitting at the prosecution table, made a hand signal

pointing to the defense table.1 Counsel then moved for a

mistrial. The court immediately denied the motion. Appellants

now claim that the district court erred in refusing to declare a

mistrial without first investigating the alleged incident to

determine whether it had been seen by the jurors.

Juror misconduct claims fall under two broad

subheadings: juror bias and improper juror contacts. "Both are

at the core of the Sixth Amendment's right to a trial by an

impartial jury, free from prejudicial contact. Private

1 Counsel for Brito described the gesture to the court, stating:

The way I saw it was the Agent that is
sitting between two counsel -- the Agent
Mr. Riley -- he has his hands crossed in
his chest, and [when] the question was
asked for the second or third time, the
last time -- when I made the objection --
he simply pointed his first finger at the
defense table.

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communications with a deliberating juror create the concern that

the juror may reach a verdict on the basis of the matters

communicated, rather than the trial evidence." United States v.

Day, 830 F.2d 1099, 1103 (10th Cir. 1987). Thus, although the

appellants do not allege any wilful misconduct on the part of the

jurors themselves, we analyze their claim here under the broad

rubric of juror misconduct because the alleged incident created a

risk that the jurors were prejudiced by facts not in evidence.

The law on the subject is well settled. "When a non-

frivolous suggestion is made that a jury may be biased or tainted

by some incident, the district court must undertake an adequate

inquiry to determine whether the alleged incident occurred and if

so, whether it was prejudicial." United States v. Ortiz-

Arrigoit a, 996 F.2d 436, 442 (1st Cir. 1993). United States v.

Boylan, 898 F.2d 230, 258 (1st Cir.), cert. denied, 498 U.S. 849

(1990); United States v. Anello, 765 F.2d 253, 258 (1st Cir.),

cert. denied, 474 U.S. 996 (1985); United States v. Corbin, 590

F.2d 398, 400 (1st Cir. 1979). The district court has "broad,

though not unlimited, discretion to determine the extent and

nature of its inquiry into allegations of juror bias." Corbin,

590 F.2d at 400. Thus, although the trial court must "conduct a

full investigation to ascertain whether the alleged jury

misconduct actually occurred," United States v. Doe, 513 F.2d

709, 711-12 (1st Cir. 1975), it has "discretion to determine the

extent and type of investigation requisite to a ruling on the

motion [for mistrial.]" Id. at 712.

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Our previous cases have "abjure[d] imposition of a

rigid set of rules for the conduct of inquiries into the presence

or extent of extrinsic influences, [noting] that the

kaleidoscopic variety of possible problems counsels in favor of

flexibility." Boylan, 898 F.2d at 258. Thus,

[s]o long as the district judge erects,
and employs, a suitable framework for
investigating the allegation and gauging
its effects, and thereafter spells out
his findings with adequate specificity to
permit informed appellate review, his
"determination that the jury has not been
soured deserves great respect [and] . . .
should not be disturbed in the absence of
a patent abuse of discretion."

Id. (quoting Hunnewell, 891 F.2d at 961) (other citations

omitted).

The circumstances of this case invoke a more stringent

standard, however, because the appellants alleged an ex parte

communication by a government agent with the jurors. "Any

unauthorized communication between jurors and persons associated

with the case is presumptively prejudicial" and obligates the

court to "conduct a sufficient inquiry to determine whether the

communication was harmless." United States v. O'Brien, 972 F.2d

12, 14 (1st Cir. 1992). See also Remmer v. United States, 347

U.S. 227, 229 (1954) (ex parte communication, contact, or

tampering with a juror during the trial about a matter pending

before the jury is presumptively prejudicial). Under these

circumstances, the appellants' claim was clearly non-frivolous

and obligated the court to undertake an adequate inquiry to

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determine whether the alleged incident occurred and if so,

whether it was harmless.

The district court failed in this obligation, as it

denied the motion for a mistrial without any investigation. It

neither questioned the Case Agent nor voir dired the jurors to

determine whether the Case Agent had made the alleged gesture, or

if he had, whether any of the jurors had seen it. Instead, the

district court summarily concluded that even if the incident had

occurred, no harm had inured to the defendants. Such a

conclusion, however, cannot stand unless supported by an adequate

inquiry, for an unauthorized communication between a juror and

someone associated with the case is "deemed prejudicial" unless

it is completely unrelated to the case or otherwise shown to be

harmless. O'Brien, 972 F.2d at 14; see also Day, 830 F.2d at

1104 (10th Cir. 1987) (restroom communication between juror and

federal agent seated at prosecution table was merely a "casual,

time-of-the-day greeting" and, although improper, was found to be

harmless). Here, although the communication alleged was clearly

connected to the case, the district court made no effort

whatsoever to see if it was in fact harmless.

Moreover, regardless of the presumptions employed, the

alleged communication clearly posed a danger of prejudice.

Counsel for Brito claimed that the Case Agent's gesture had

implicated N ez as the unnamed person who, by threats to her

daughter, forced D az' wife to return the $15,000 D az had been

paid for his courier services. If the gesture in fact occurred

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and was seen by the jurors, they might impermissibly have

included it in the calculus of their deliberations. Further, we

note that the gesture was allegedly made by the Case Agent, whom

the jury might reasonably have presumed to have access to inside

information. Thus, had the alleged gesture been observed and

understood to suggest the defendants' complicity in the threats

to D az' family, the jury might well have given it substantial

credence. It may well be that the gesture was never made, or if

it was, that no jurors saw it; but if such was the case, it was

the district court's obligation to develop the relevant facts on

the record, not merely presume them. As the Supreme Court

explained in Smith v. Phillips, 455 U.S. 209, 212 (1982), "[d]ue

process means a jury capable and willing to decide the case

solely on the evidence before it, and a trial judge ever watchful

to prevent prejudicial occurrences and to determine the effect of

such occurrences when they happen." The district court's failure

to conduct a sufficient inquiry clearly deprived appellants of

this right, and therefore requires that their convictions be

vacated.2

Reversed and remanded.

2 Because we vacate the convictions on the grounds stated
herein, we decline to reach the other issues raised by
appellants.

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