09-3007-cr
USA v. Colon (Rojas)
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6 August Term, 2009
7
8 (Argued: July 14, 2010 Decided: August 12, 2010)
9
10 Docket No. 09-3007-cr
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 –v.–
18
19 NICHOLAS ROJAS,
20
21 Defendant-Appellant.
22
23
24 Before: JACOBS, Chief Judge, WESLEY and CHIN, Circuit
25 Judges.
26
27 Appeal from the judgment of the United States District
28 Court for the District of Connecticut (Kravitz, J.), entered
29 on July 9, 2009, sentencing defendant principally to eighty
30 months’ imprisonment. Defendant was convicted, after a jury
31 trial, of one count of conspiracy to possess with the intent
32 to distribute, and to distribute, five grams or more of
33 cocaine base and two counts of use of a telephone to
34 facilitate the commission of a drug trafficking felony. On
35 appeal, defendant challenges the sufficiency of the evidence
36 on which his conspiracy conviction rests. He further
37 contends that the district court erred in recalling the jury
1 after it had been pronounced “discharged” to correct an
2 error in the reading of the written verdict form. Defendant
3 maintains that these asserted errors require vacatur of his
4 conviction with respect to the conspiracy count. We
5 disagree. The evidence was sufficient to sustain the jury’s
6 verdict and the district court did not err in recalling the
7 jury. Accordingly, the judgment of the district court is
8 hereby AFFIRMED.
9
10
11 S. DAVE VATTI, Assistant United States Attorney (Sandra
12 S. Glover, Assistant United States Attorney, on
13 the brief), for Nora R. Dannehy, United States
14 Attorney for the District of Connecticut,
15 Hartford, CT, for Appellee.
16
17 JONATHAN J. EINHORN, New Haven, CT, for Defendant-
18 Appellant.
19
20
21 WESLEY, Circuit Judge:
22 On May 16, 2008, a jury found defendant Nicholas Rojas
23 guilty of conspiring to possess with the intent to
24 distribute, and to distribute, five grams or more of cocaine
25 base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),
26 and 846. The jury also found Rojas guilty of using a
27 telephone to facilitate the commission of a drug trafficking
28 felony in violation of 21 U.S.C. § 843(b). At trial, the
29 government presented evidence that Rojas functioned as a
2
1 street-level crack dealer in a large-scale narcotics
2 trafficking organization headed by Luis A. Colon, also known
3 as Anthony Colon.
4 On appeal, Rojas contends that the evidence at trial
5 was insufficient to establish that he joined the charged
6 conspiracy. Specifically, Rojas argues that while he sold
7 drugs he acquired from Colon, he did so only to finance his
8 own drug habit. Rojas also asserts that it was improper for
9 the district court to recall the jury, after it had been
10 declared “discharged” but before it had dispersed, in order
11 to correct a misreading of the written verdict form and to
12 re-poll the jury. We hold that the evidence was sufficient
13 to support the jury’s verdict. We further hold that, based
14 on the totality of the facts and circumstances presented by
15 this case, it was not error for the district court to recall
16 the jury. We therefore affirm.
17 I. BACKGROUND
18 At trial, the government presented evidence that, in
19 October of 2005, the Federal Bureau of Investigation (“FBI”)
3
1 commenced an investigation into a drug trafficking
2 organization, which was operating in Waterbury,
3 Connecticut. 1 At the center of this criminal organization
4 was Anthony Colon, who served as a cooperating witness for
5 the government at trial. The evidence demonstrated that
6 Rojas interacted with Colon on an almost daily basis.
7 According to FBI agent William Aldenberg, who testified at
8 trial, the government intercepted Colon’s phone calls over a
9 period of approximately ninety days. Agent Aldenberg
10 estimated that the government introduced twenty-three audio
11 recordings of conversations between Colon and Rojas. Agent
12 Aldenberg further testified that Rojas used thirteen
13 different phones to place calls to Colon, and that the use
14 of multiple phones is common among street-level distributors
15 in drug conspiracies.
1
The original indictment in this case contained
thirteen counts charging thirty one individuals with various
narcotics offenses. A superseding indictment, on which the
government proceeded to trial, was subsequently returned
against Rojas. Rojas was tried with one other individual,
who was charged in a separate indictment. The co-defendant
tried with Rojas is not implicated by this appeal.
4
1 In his capacity as a cooperating witness, Colon
2 testified that he had a longstanding relationship with
3 Rojas. Colon explained that he brought Rojas into his drug
4 trafficking organization because he knew him; according to
5 Colon, Rojas was buying drugs on a street corner where
6 Colon’s organization operated prior to the point at which
7 Rojas joined the conspiracy. Colon further testified that,
8 at the nascency of their conspiratorial relationship, he
9 told Rojas that he would have to give him a “test” to
10 determine his reliability. Trial Tr. 342:5, May 13, 2008.
11 Once their relationship was established, Colon provided
12 drugs to Rojas “on credit,” Trial Tr. 418:14-15, May 13,
13 2008, usually when he was assured that Rojas had a customer
14 to whom he would resell the drugs. Colon attested that he
15 “trust[ed]” Rojas. Trial Tr. 342:23, May 13, 2008. As
16 evidence of this trust, he would permit Rojas to pick up
17 crack cocaine “on credit” from his house for resale. Trial
18 Tr. 349:20-25, 350:1, May 13, 2008.
19 At trial, the government elicited testimony from Colon
5
1 that, on multiple occasions, he bailed Rojas out of jail
2 because Rojas “was moving product” for him. Trial Tr.
3 418:19-25, 419:1-12, May 13, 2008. The government
4 introduced the bond paperwork to corroborate Colon’s
5 testimony in this regard. As additional evidence of the
6 conspiratorial relationship, a recorded conversation was
7 played at trial in which Rojas referred to himself as
8 Colon’s “partner.” Trial Tr. 356:12, May 13, 2008. Colon
9 explained that he understood Rojas to be communicating that
10 he was his “boy.” Trial Tr. 356:14-16, May 13, 2008.
11 Rojas maintained at trial — and now argues before this
12 Court — that he was merely a drug user who purchased drugs
13 from Colon, but that he was not a member of the charged
14 conspiracy. In light of this contention, the district court
15 instructed the jury that “mere knowledge or acquiescence
16 without participation in the unlawful plan is not
17 sufficient” to form the basis of a conspiracy conviction.
18 Trial Tr. 578:8-10, May 14, 2008. The district court
19 explained to the jury that “the fact that the acts of a
6
1 defendant, without knowledge, merely happen to further the
2 purposes or the objectives of the conspiracy does not make
3 that defendant a conspirator.” Trial Tr. 578:10-13, May 14,
4 2008.
5 The court also provided the jury with what is commonly
6 referred to as a “buyer-seller” instruction. Specifically,
7 the court stated:
8 [W]ithout more, the mere existence of a
9 buyer/seller relationship is insufficient
10 to establish membership in a conspiracy.
11 In deciding whether parties to a sale of
12 narcotics are merely a buyer and seller, or
13 instead are co-conspirators, the jury may
14 properly consider a number of factors,
15 including the length of time that the buyer
16 affiliated with the seller; whether there
17 was a common goal among the parties to
18 advance the conspiracy’s interests; whether
19 there was an agreement or understanding to
20 redistribute drugs; the established method
21 of payment; the extent to which the
22 transactions were standardized; the
23 quantities of drugs involved; and whether
24 there was mutual trust between the buyer
25 and the seller. None of these factors is
26 dispositive, nor is this listing intended
27 to be exhaustive.
28
29 Trial Tr. 578:19-25, 579:1-8, May 14, 2008. The court
30 instructed that, in order for Rojas to be deemed a co-
7
1 conspirator, the government was required to prove, beyond a
2 reasonable doubt, that Rojas “participated with knowledge of
3 at least some of the unlawful purposes or objectives of the
4 conspiracy and with the intention of aiding in the
5 accomplishment of those unlawful ends.” Trial Tr. 578:15-
6 18, May 14, 2008.
7 On May 16, 2008, the jury returned its verdict, finding
8 Rojas guilty of conspiring to possess with intent to
9 distribute, and to distribute, controlled substances. On
10 the written verdict form prepared by the court, the jury
11 made a specific finding that “it was reasonably foreseeable
12 to Nicholas Rojas that the conspiracy charged . . . involved
13 the possession with the intent to distribute or the
14 distribution of five grams or more of a mixture and
15 substance containing a detectable amount of cocaine base.”
16 Def. App. at 127 (emphasis added) (verdict form as to
17 Rojas). It made a finding that the drug quantity
18 attributable to the defendant was five grams or more of
19 cocaine base. Def. App. at 127 (emphasis added) (verdict
8
1 form as to Rojas). The jury also returned a verdict
2 concluding that Rojas was guilty of two counts of using a
3 telephone to facilitate the commission of a drug trafficking
4 felony in violation of 21 U.S.C. § 843(b). Def. App. at 128
5 (verdict form as to Rojas).
6 During the courtroom deputy’s reading of the jury’s
7 written verdict form, the deputy made several errors, one of
8 which forms a basis for this appeal. First, when reading
9 the jury’s verdict as to the conspiracy charge, the deputy
10 omitted the word “base” and simply stated “five grams or
11 more of a mixture and substance containing a detectable
12 amount of cocaine.” Trial Tr. 691:12-14, May 14, 2008
13 (emphasis added). Similarly, with respect to the counts
14 involving the use of a telephone to facilitate a drug crime,
15 the deputy omitted the word “base” and simply referred to
16 the use of a telephone to “facilitate the knowing,
17 intentional, and unlawful possession with intent to
18 distribute and distribution of cocaine.” Trial Tr. 691:25,
19 692:1-4, May 14, 2008 (emphasis added).
9
1 The error with respect to the telephone counts was
2 brought to the court’s attention before the jury was
3 declared “discharged,” and was quickly corrected. Trial Tr.
4 697:17-25, 698:1-2, May 14, 2008. However, when the court
5 asked if counsel for either party wanted the verdict re-read
6 in its entirety, counsel declined and indicated that they
7 only wished to have the verdict re-read with respect to the
8 telephone counts. Trial Tr. 697:17-21, May 14, 2008.
9 Consequently, the error as to the conspiracy count was not
10 detected until the jury had been polled, pronounced
11 “discharged,” and had returned to the deliberation room to
12 await the thanks of the court for its service. It was at
13 this time that counsel reviewed the transcript of the
14 deputy’s reading of the verdict form and realized that the
15 word “base” had also been omitted in the reading of the
16 conspiracy count. The lawyers alerted the district judge to
17 this omission. Counsel for both sides and the court then
18 discussed how to proceed. The court asked defense counsel
19 if he would consent to having the jury returned to the
10
1 courtroom and re-polled; defense counsel declined to consent
2 to this course of action. Noting defense counsel’s
3 objection, the court nonetheless recalled the jury, which
4 had not yet left the jury room. Once the jurors were
5 reassembled in the courtroom, the court explained why they
6 had been asked to return, instructed the deputy to re-read
7 the verdict form, and then re-polled the jury. The jury
8 assented to the corrected reading of the verdict form and
9 was declared “discharge[d]” a second time.
10 On June 17, 2008, Rojas filed a motion in the district
11 court for a judgment of acquittal, Fed. R. Crim. P. 29, or,
12 in the alternative, for a new trial, Fed. R. Crim. P. 33.
13 This motion was based solely on his allegation that
14 insufficient evidence supported his conviction. The
15 district court denied the motion on December 19, 2008,
16 concluding that there was “no doubt that the evidence in its
17 totality” was sufficient to allow the “jury to find beyond a
18 reasonable doubt that Mr. Rojas was not merely a buyer or
19 seller of narcotics, but rather that he knowingly and
11
1 intentionally participated in the Colon narcotics-
2 distribution conspiracy by agreeing to accomplish its
3 illegal objective beyond the mere purchase or sale of
4 drugs.” United States v. Rojas, No. 06 Cr. 269 (MRK), 2008
5 WL 5329006, at *6 (D. Conn. Dec. 19, 2008). Ruling only on
6 Rojas’ contention with respect to the sufficiency of the
7 evidence, the court also declined to grant a new trial
8 pursuant to Rule 33, finding no miscarriage of justice in
9 the jury’s verdict. Id. at *8.
10 Rojas was sentenced on July 8, 2008 and judgment was
11 entered against him on July 10, 2009. D. Ct. Doc. Nos. 1281,
12 1282. Defendant’s timely notice of appeal followed.
13 II. DISCUSSION
14 A. Sufficiency of the Evidence
15 It is well-established that a defendant challenging the
16 sufficiency of the evidence “‘bears a heavy burden.’”
17 United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008)
18 (quoting United States v. Parkes, 497 F.3d 220, 225 (2d Cir.
19 2007)). “On such a challenge, we view the evidence in the
12
1 light most favorable to the government, drawing all
2 inferences in the government’s favor and deferring to the
3 jury’s assessments of the witnesses’ credibility.” Id.
4 (internal quotation marks omitted). We must evaluate the
5 evidence in its totality, United States v. Wexler, 522 F.3d
6 194, 207 (2d Cir. 2008), and uphold the jury’s verdict as
7 long as “any rational trier of fact could have found the
8 essential elements of the crime beyond a reasonable doubt.”
9 Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
10 original). This inquiry is distinct from asking whether
11 this Court believes that the evidence at trial established
12 guilt beyond a reasonable doubt. Id. at 318-19. In
13 assessing the sufficiency of the evidence in the context of
14 a conspiracy conviction, “deference to the jury’s findings
15 is especially important . . . because a conspiracy by its
16 very nature is a secretive operation, and it is a rare case
17 where all aspects of a conspiracy can be laid bare in
18 court.” Wexler, 522 F.3d at 207 (alteration in original and
19 internal quotation marks omitted).
13
1 “As a literal matter, when a buyer purchases illegal
2 drugs from a seller, two persons have agreed to a concerted
3 effort to achieve the unlawful transfer of the drugs from
4 the seller to the buyer. According to the customary
5 definition, that would constitute a conspiracy . . . .”
6 United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009).
7 There is, however, a “narrow exception to the general
8 conspiracy rule,” upon which defendant relies, applicable to
9 transactions between a buyer and a seller of drugs. Id.
10 Under this exception, a buyer-seller relationship,
11 “[w]ithout more,” is insufficient to establish a conspiracy.
12 United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998). The
13 rationale for this exception is that, while a drug sale is a
14 substantive crime, it should not be characterized as a
15 conspiracy because it “has no separate criminal object.”
16 Wexler, 522 F.3d at 208 (internal quotation marks omitted).
17 Significantly, the fact that a buyer-seller
18 relationship exists between co-conspirators does not
19 insulate a buyer from a conspiracy charge “if the facts
14
1 support such a charge.” Parker, 554 F.3d at 232. In other
2 words, the exception “does not protect either the seller or
3 buyer from a charge [that] they conspired together to
4 transfer drugs if the evidence supports a finding that they
5 shared a conspiratorial purpose to advance other transfers,
6 whether by the seller or by the buyer.” Id. at 235. Here,
7 the defendant does not dispute that a conspiracy headed by
8 Colon existed. Rather, he claims that there was
9 insufficient evidence to prove his membership in the
10 conspiracy. We reject this contention because the evidence
11 reveals more than a mere buyer-seller relationship; there is
12 “additional evidence showing an agreement to join together
13 to accomplish an objective beyond the sale transaction” from
14 which a rational jury could have inferred that Colon and
15 Rojas were co-conspirators. Hawkins, 547 F.3d at 72.
16 While our Circuit has “avoided listing factors to guide
17 what is a highly fact-specific inquiry into whether the
18 circumstances surrounding a buyer-seller relationship
19 establish an agreement to participate in a distribution
15
1 conspiracy,” we have noted the “relevance” of certain
2 factors identified by other circuit courts of appeal. Id.
3 at 74 (citing United States v. Hicks, 368 F.3d 801, 805 (7th
4 Cir. 2004); United States v. Gibbs, 190 F.3d 188, 199 (3d
5 Cir. 1999)). For example, the existence of “sales on
6 credit,” such as those that took place between Colon and
7 Rojas, have been used “[t]o distinguish between a buyer-
8 seller relationship and a conspiratorial agreement.” Hicks,
9 368 F.3d at 805; see also Hawkins, 547 F.3d at 74.
10 In this case, defendant asked for and was given a jury
11 instruction regarding the buyer-seller exception. While we
12 do not reach the question of whether defendant was entitled
13 to such an instruction, cf. United States v. Medina, 944
14 F.2d 60, 65 (2d Cir. 1991) (finding “the district court did
15 not err in refusing to give the . . . ‘buyer-seller’
16 instruction” because there was “advanced planning among the
17 alleged co-conspirators to deal in wholesale quantities of
18 drugs obviously not intended for personal use”), we find
19 that the instruction given was not in error. The district
16
1 court properly instructed the jury that “the mere existence
2 of a buyer/seller relationship” was not sufficient to
3 establish membership in a conspiracy, and the district court
4 correctly informed the jury that in determining whether
5 Rojas was a mere buyer on instead a member of the
6 conspiracy, it could consider a number of non-dispositive,
7 non-exclusive factors.
8 A non-exclusive list of considerations relevant to a
9 jury’s determination of whether a defendant was a member of
10 a charged conspiracy, or a merely a buyer and user of drugs,
11 would include: Did the buyer seek to advance the
12 conspiracy’s interests? Was there mutual trust between
13 buyer and seller? Were the drugs provided on credit? Did
14 the buyer have a longstanding relationship with the seller?
15 Did the buyer perform other duties on behalf of the
16 conspiracy? Were the drugs purchased for a re-distribution
17 that was part of the conspiratorial enterprise? Did the
18 quantity of drugs purchased indicate an intent to re-
19 distribute? Were the buyer’s profits shared with the
17
1 members of the conspiracy? Did the buyer/re-distributor
2 have the protection of the conspiracy (physically,
3 financially, or otherwise)? Was his point of sale assigned
4 or protected by members of the conspiracy? Did the buyer
5 use other members of the conspiracy in the re-distribution?
6 The jury may consider these, and any other relevant matters,
7 in deciding whether a buyer of drugs is a member of the
8 distribution conspiracy. Here, based on the evidence
9 presented, the jury was entitled to reject defendant’s
10 contention that his conduct fit within the buyer-seller
11 exception to ordinary conspiracy law principles.
12 Rojas clearly enjoyed the benefit of a relationship
13 that exceeded one of simply a buyer and a seller in
14 negotiating sales “on credit” with Colon. During one
15 recorded exchange, Colon initially balked at a request by
16 Rojas to provide him with drugs “on credit.” Gov’t App. at
17 694 (government trial exhibit 35A). Rojas implored: “Come
18 on, Anthony, this is me.” Gov’t App. at 694 (government
19 trial exhibit 35A). The transaction was eventually
18
1 accomplished. Gov’t App. at 694-95 (government trial
2 exhibit 35A). The evidence revealed that Rojas regarded
3 himself as more than a mere buyer. He referred to himself
4 as Colon’s partner, and even took it upon himself to protect
5 Colon’s apartment from intruders while Colon was away.
6 Trial Tr. 356:12, 355:7-25, May 13, 2008.
7 The fact that Colon provided Rojas with bail money also
8 lends credence to the jury’s determination that Colon and
9 Rojas were co-conspirators, involved in a mutually
10 beneficial relationship. Just as the provision of drugs on
11 credit may “reflect the kind of trust,” Gibbs, 190 F.3d at
12 200, often present between co-conspirators, so too can the
13 provision of bail money. Indeed, it evinces Colon’s “shared
14 stake” in Rojas’s “illegal venture.” United States v.
15 Contreras, 249 F.3d 595, 599 (7th Cir. 2001) (internal
16 quotation marks omitted).
17 As was the case in United States v. Hawkins, “the
18 evidence [presented at trial] clearly establishe[d] that
19 [Rojas] intended to redistribute some of the [crack] cocaine
19
1 he purchased” from Colon for profit. 547 F.3d at 75. In
2 fact, Colon testified that he sold drugs to Rojas “on
3 credit” because he knew that Rojas would resell a portion of
4 those drugs. Trial Tr. 291:13-20, May 13, 2008. Rojas
5 argues that his only object in reselling the drugs he
6 obtained from Colon was to make money to feed his addition,
7 and not to further the ends of the conspiracy. However, as
8 the government notes before this Court, the manner in which
9 Rojas chose to spend the profits he obtained from his
10 participation in the conspiracy is of no legal significance
11 to our evaluation of whether the evidence was sufficient to
12 establish more than a buyer-seller relationship.
13 In his testimony at trial, Colon identified the
14 defendant as one of the individuals who was buying larger
15 quantities of drugs from him. Trial Tr. 289:7-9, May 13,
16 2008. The jury could draw a reasonable inference from the
17 quantity of drugs purchased by Rojas that they were not all
18 for individual consumption. For example, in one intercepted
19 call, which was played at trial, Rojas asked Colon to
20
1 “[f]ront him seven grams of crack cocaine.” Trial Tr.
2 334:10, May 13, 2008. According to Colon’s testimony, Rojas
3 assured him that he would be able to pay him back “[a]t the
4 end of the night.” Trial Tr. 334:12, May 13, 2008. Colon
5 explained that he understood that, in order for Rojas to pay
6 him back, Rojas would have to resell the drugs.
7 In a recorded phone call played at trial, Colon told
8 Rojas that he would “always look out for [him]” because
9 Rojas “look[ed] out for [Colon].” Gov’t App. at 720
10 (government trial exhibit 45A). Further, Rojas assured
11 Colon: “when I deal, then I come through.” Gov’t App. at
12 721 (government trial exhibit 45A). The jury could properly
13 have considered this assurance of reliability as evidence of
14 a conspiracy. See United States v. Miranda-Ortiz, 926 F.2d
15 172, 176 (2d Cir. 1991). This is so especially in light of
16 the fact that Colon and Rojas had a longstanding
17 relationship. See Contreras, 249 F.3d at 599; see also
18 Wexler, 522 F.3d at 211 (Raggi, J., dissenting).
19 In sum, we conclude that sufficient evidence supported
21
1 the jury’s verdict. The jury could reasonably have relied
2 on evidence presented at trial that demonstrated a lengthy
3 affiliation between Colon and Rojas, evidence that
4 demonstrated mutual trust between the defendant and Colon,
5 the presence of sales “on credit,” the quantity of drugs
6 involved, and the fact that Colon bailed Rojas out of jail
7 on multiple occasions, to conclude that Colon and Rojas were
8 co-conspirators and that their relationship was not that of
9 a mere buyer and a seller. See Gibbs, 190 F.3d at 199-200.
10 B. Recalling the “Discharged” Jury
11 Defendant’s second contention on appeal presents this
12 Court with a question that we have never before had occasion
13 to answer: may a district court recall a jury that has been
14 declared “discharged,” but which has not dispersed, to re-
15 read a verdict form when the courtroom deputy’s initial
16 reading did not conform to the written verdict? We find,
17 based on the facts and circumstances of this case, that no
18 error was committed by the district court.
19 We review de novo a district court’s interpretation of
22
1 the Federal Rules of Criminal Procedure. Cf. United States
2 v. Camacho, 370 F.3d 303, 305 (2d Cir. 2004). We consider
3 the question of which verdict controls — the written or the
4 oral verdict — to be a question of law, which is also
5 subject to de novo review. See United States v. Boone, 951
6 F.2d 1526, 1532 (9th Cir. 1991).
7 In framing his argument that the district court erred
8 in recalling the jury, the defendant relies on Federal Rule
9 of Criminal Procedure 31(d), which provides:
10 After a verdict is returned but before the
11 jury is discharged, the court must on a
12 party’s request, or may on its own, poll
13 the jurors individually. If the poll
14 reveals a lack of unanimity, the court may
15 direct the jury to deliberate further or
16 may declare a mistrial and discharge the
17 jury.
18
19 Fed. R. Crim. P. 31(d). We conclude that this rule does not
20 prevent the district court from returning a jury, which has
21 not left the deliberation room, to the courtroom when it
22 becomes clear that the deputy erred in reciting the written
23 verdict. The mere incantation of the word “discharged”
24 marks only a time when the jurors have been discharged
23
1 nominally. The court must evaluate the specific scenario
2 presented in order to determine whether recalling the jury
3 would result in prejudice to the defendant or undermine the
4 confidence of the court — or of the public — in the verdict.
5 In this case, notwithstanding the fact that the jury
6 assented to the improperly read verdict form when polled for
7 the first time, the initial misreading of the written
8 verdict form in no way calls into doubt our conclusion that
9 the actual verdict reached by the jury is reflected in the
10 written form. Nor does the recitation error leave us with
11 any uncertainty that the written verdict form reflects an
12 uncoerced and unanimous jury verdict.
13 The government relies heavily on a 1926 decision of the
14 Fourth Circuit Court of Appeals, Summers v. United States,
15 11 F.2d 583 (4th Cir. 1926), which we find instructive. In
16 that case, the court held:
17 [A jury] may remain undischarged and retain
18 its functions, though discharge may have
19 been spoken by the court, if, after such
20 announcement, it remains an undispersed
21 unit, within [the] control of the court,
22 with no opportunity to mingle with or
24
1 discuss the case with others, and
2 particularly where, as here, the very case
3 upon which it has been impaneled is still
4 under discussion by the court, without the
5 intervention of any other business.
6
7 Id. at 586. We agree that under the circumstances described
8 by the Summers court — also present in this case — a jury
9 may properly be returned to the courtroom to correct a
10 technical error that occurred during the initial reading of
11 its written verdict. 2 We find that the written verdict form
12 reflects the operative verdict in this case. The jury
13 assented to the corrected reading of its verdict in open
14 court, and it is therefore a wholly reliable indicator of
15 the jury’s true verdict. The deputy’s inadvertent omission
16 of the word “base” when reading the verdict initially does
17 not require vacatur of the conviction under these
2
In referring to the error in the deputy’s reading of
the verdict as “technical,” we do not mean to suggest that
the distinction between a cocaine offense and a cocaine base
offense is not a substantive one. Rather, we mean that the
misreading itself was a technical error. Furthermore, as
noted by the district court, the actual underlying count of
conviction refers to “a controlled substance,” 21 U.S.C. §
841(a)(1), and this portion of the verdict form was read
properly.
25
1 circumstances.
2 The re-reading of the written verdict form, and re-
3 polling of the jury, as conducted in this case, is
4 distinguishable from a case in which jury deliberations are
5 reopened. See United States v. Kress, 58 F.3d 370, 372 (8th
6 Cir. 1995). Here, the district court simply reconvened the
7 jury to correct a technical error in the courtroom deputy’s
8 reading of the verdict form. We can be confident that no
9 further deliberation took place between the initial
10 discharging of the jury and minutes later when it was
11 reassembled in the courtroom. The most logical conclusion
12 that can be drawn from the record is that the members of the
13 jury were unaware that the oral recitation of their verdict
14 was not in conformance with the written verdict until they
15 were returned to the courtroom by the district judge. 3
3
We do not decide whether a different outcome would
result if the jury was asked to do anything beyond clarify
what it had previously decided. It might be that
reassembling a jury after it has dispersed, and after a
significant amount of time has passed, could pose “manifest
difficulties,” Harrison v. Gillespie, 596 F.3d 551, 574 (9th
Cir. 2010) (internal quotation marks omitted), but we are
not now faced with such a scenario. In the instant case,
26
1 It is significant that, although the jury had
2 technically been declared “discharged” by the court, it had
3 not dispersed. 4 The jurors were therefore not exposed to
4 “outside factors,” which might “render[] the reliability of
5 any poll on recall problematic.” United States v. Marinari,
6 32 F.3d 1209, 1213 (7th Cir. 1994). In accord with the
7 Summers court, the Seventh Circuit has held that “[w]hen a
8 jury remains as an undispersed unit within the control of
9 the court and with no opportunity to mingle with or discuss
10 the case with others, it is undischarged and may be
11 recalled.” Id. at 1214. Similarly, we hold that the jury
12 in this case “retain[ed] its function[],” Summers, 11 F.2d
13 at 586, and that it was proper to return it to the courtroom
14 for a re-reading of the verdict form and for a re-polling.
the government maintains — and there is nothing in the
record to contradict this assertion — that the district
court was informed of the error within six minutes of
pronouncing the jury “discharged.”
4
We leave for another day the question of the
legitimacy of a verdict when a technical misreading of a
written verdict form is not discovered until after the jury
has dispersed.
27
1 Based on the totality of the circumstances of this
2 case, there can be no doubt that the jury intended to
3 convict Rojas of an offense involving cocaine base. The
4 evidence at trial centered on defendant’s sale of cocaine
5 base, the defendant was charged in a conspiracy to
6 distribute cocaine base, the court’s instructions to the
7 jury referred to a crime involving cocaine base, and the
8 written verdict form required the jury to make specific
9 findings as to the amount of cocaine base involved in
10 defendant’s crime. Indeed, in re-polling the jury after the
11 error was detected as to the reading of the telephone
12 counts, the district court specifically stated that it
13 wanted to “ensure that [its] verdict is as to cocaine base
14 and not as to cocaine.” 5 Trial Tr. 698:1-2, May 14, 2008.
5
Although we find that the district court did not err,
even if we were to accept defendant’s contention that the
recalling and re-polling of the jury was error, it would
clearly be harmless under the circumstances. See United
States v. Yousef, 327 F.3d 56, 121 (2d Cir. 2003). Federal
Rule of Criminal Procedure 52(a) states:
Any error, defect, irregularity, or
variance that does not affect substantial
rights must be disregarded.
28
1 The fact that the jury originally assented to the
2 misread version of its verdict does not alter our holding:
3 To conclude that the jury agreed with the
4 [deputy’s] mistaken reading of the verdict,
5 rather than the jury’s written verdict,
6 requires us to assume that the jurors
7 unanimously changed their minds in a split
8 second . . . . It is unreasonable to
9 expect the jurors to have corrected the
10 [deputy’s] misreading of their verdict and
11 to conclude that by their failure to do so
12 [they had] assented to the misread
13 verdict[].
14
15 Boone, 951 F.2d at 1532. As we have previously explained,
16 the “purpose of a jury poll is to test the uncoerced
17 unanimity of the verdict by requiring each juror to answer
18 for himself [or herself], thus creating individual
19 responsibility.” United States v. Gambino, 951 F.2d 498,
20 502 (2d Cir. 1991) (internal quotation marks omitted and
21 emphasis added). While it is true that a juror has a right,
22 “when polled, to dissent from a verdict to which he [or she]
Fed. R. Crim. P. 52(a). The record demonstrates that the
flawed recitation of the jury’s written verdict form did not
affect the defendant’s substantial rights. The defendant
suffered no prejudice by the reassembly of the jury.
29
1 has agreed in the jury room,” Bruce v. Chestnut Farms-Chevy
2 Chase Dairy, 126 F.2d 224, 225 (D.C. Cir. 1942) (per
3 curiam), there is no suggestion that any one of the jurors
4 in fact dissented from the written verdict form. There is
5 nothing in the record to reflect disunity within the jury;
6 nor does the defendant contend that the jury’s endorsement
7 of its written verdict upon re-polling was the product of
8 coercion. Rather, the fact that the jury unanimously
9 assented to the corrected reading of its verdict form
10 suggests that it was under the erroneous impression that the
11 original reading accurately reflected its unanimous, written
12 verdict.
13 Accordingly, there is no merit to the argument that the
14 jury intended to convict Rojas of a cocaine offense, rather
15 than an offense involving cocaine base. Cf. Putnam Res. v.
16 Pateman, 958 F.2d 448, 457 (1st Cir. 1992) (finding “no
17 plausible theory[,] . . . legal or equitable, which could
18 ground an assertion that the jury findings were ambiguous”
19 and “assum[ing] that the jury listened to and understood the
30
1 court’s entire charge” (internal quotation marks omitted)).
2 To find otherwise “would elevate form over substance.”
3 Boone, 951 F.2d at 1533. If we were to “conform the written
4 verdict to reflect the misread verdict,” it would have the
5 effect of “frustrat[ing] the jury’s intent and the entire
6 jury process.” Id. We conclude that the written verdict
7 form is operative and that it accurately reflects the jury’s
8 true verdict. Therefore, we hold that the district court
9 did not err in recalling the still-assembled jury to correct
10 an inadvertent error in the recitation of the verdict.
11 III. CONCLUSION
12 We have reviewed all of defendant’s contentions on
13 appeal and find them to be without merit. Accordingly, the
14 judgment of the district court is hereby AFFIRMED.
31