June 21, 1993

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT

                                         

Nos. 91-1290
  91-1365
  91-1366

                       UNITED STATES,
                         Appellee,

                             v.

       LUIS E. ORTIZ-ARRIGOITIA, a/k/a COLIBRI, et al
                   Defendants, Appellants

                                                      

                        ERRATA SHEET

  The  opinion of  this  court issued  on  June 11,  1993,  is
amended as follows:

  On  page 19, fourth line  of footnote 2,  replace "n.4" with
"n.9."

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 91-1290

                       UNITED STATES,
                         Appellee,

                             v.

          LUIS E. ORTIZ-ARRIGOITIA, a/k/a COLIBRI,
                   Defendant, Appellant.

                                   

No. 91-1365

                       UNITED STATES,
                         Appellee,

                             v.

                 LUIS HIRAM ORTIZ-CAMERON,
                   Defendant, Appellant.

                                   

No. 91-1366

                       UNITED STATES,
                         Appellee,

                             v.

            PEDRO MEDINA-VAZQUEZ, a/k/a PURUCO,
                   Defendant, Appellant.

                                        

       APPEALS FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF PUERTO RICO

      [Hon. Gilberto Gierbolini, U.S. District Judge]
                                                    

                                        

                           Before

              Selya and Stahl, Circuit Judges,
                                             
               and Skinner,* District Judge.
                                           

                                        

Samuel I. Burstyn argued for appellants Ortiz-Cameron and  Medina-
                
Vazquez and was on brief for appellant Ortiz-Cameron.
Jose R.  Franco Rivera argued  for appellant Ortiz-Arrigoitia  and
                     
was on joint brief for appellants Ortiz-Arrigoitia and Medina-Vazquez.
Luis Rafael  Rivera on joint  brief for appellants  Medina-Vazquez
                  
and Ortiz-Arrigoitia.
Joseph S.  Uberman, Attorney,  Criminal Division, U.S.  Department
                 
of Justice,  with  whom Robert  S.  Mueller, III,  Assistant  Attorney
                                           
General, Mary Lee Warren, Chief, Criminal Division, U.S. Department of
                   
Justice, Hope P. McGowan, Attorney, Criminal Division, U.S. Department
                   
of  Justice, and Daniel F. Lopez Romo, United States Attorney, were on
                                
brief for appellee. 

                                        

                       June 11, 1993
                                        

                 

*   Of the District of Massachusetts, sitting by designation.

SKINNER, District Judge.  These appeals are from convictions
                       

on assorted  charges of conspiracy, importing and possessing

large  quantities  of  marijuana  and  cocaine,  aiding  and

abetting  therein  and,  in  the  case  of  Medina  Vazquez,

possession of a firearm in connection with the drug charges.

These defendants were tried together with two others.   This

trial  was part of the serial prosecution of some 55 members

of   a  large   scale  drug  importation   and  distribution

organization  known  as  "La   Nena."    Of  their  numerous

assertions of error, the most serious is the denial of their

motions for  a mistrial  after discovery by  the court  that

four of  the jurors had  arrived at a  conclusion concerning

guilt prior to the presentation of the defendants' evidence.

We  reserve our  discussion  of this  difficult issue  until

last.

l. Sufficiency of evidence.
                          

          All  defendants challenge  the sufficiency  of the

evidence against them because the government's case depended

on    the   testimony    of   Geraldo    Portalatin   Toledo

("Portalatin"),  a  leading member  of  the  "La Nena"  drug

organization.   Defendants argue that Portalatin's testimony

was so  unreliable and so  sketchy as  to them, that  it was

                            -3-
                             3

insufficient  as  a matter  of law.   Portalatin  was cross-

examined  concerning his  deals  with the  government.   The

judge gave  complete and correct instructions  detailing the

special care the jury should take in assessing the testimony

of an accomplice.   Under these circumstances, an accomplice

is a qualified witness and the credibility of the witness is

for the jury.  United States v. Restrepo-Contreras, 942 F.2d
                                                  

96, 99  (1st Cir. 1991) (it  is the province of  the jury to

assess the credibility of  a witness), cert. denied, 112  S.
                                                   

Ct. 955 (1992).   Portalatin testified that Ortiz Arrigoitia

and  Medina  Vazquez  helped  unload  various  shipments  of

marijuana and cocaine and  Ortiz Cameron participated in the

unloading  and  distribution  of  a  load  of  cocaine  at a

"clandestine  airfield" at  La  Furnia Farm  in Barceloneta,

Puerto Rico.    Portalatin's  evidence,  if  believed,  when

considered  with   the  other  evidence  in   the  case  was

sufficient    to   support    conviction   by    the   jury,

notwithstanding  Portalatin's  unsavory   history  and   the

contrary evidence presented by the defendants.

2.  Improper admission of testimony.
                                   

          Ortiz  Cameron  further   asserts  error  in   the

admission of evidence.  Portalatin testified that the driver

                            -4-
                             4

of  a Chevrolet "power wagon" (apparently a four-wheel-drive

truck) which was used  to remove the cargo of  cocaine after

an  incoming plane crashed at   Furnia was  "Hiram," whom he

identified  as  Luis  Hiram Ortiz  Cameron,  the  defendant.

Portalatin had been  in the plane which  crashed, had bumped

his head,  had pulled  the pilot  out of  the plane and  had

described  himself as  "shaken"  by the  experience.   Ortiz

Cameron argues  that  Portalatin's  condition  made  him  so

unreliable that his testimony  should not have been allowed.

There  is no  evidence,  however, that  he  was in  any  way

incapacitated.   He  pulled the  pilot  from the  plane  and

helped  salvage the cargo.   He then spent  two hours beside

"Hiram"  as  the  latter  drove  the  "power  wagon"  to the

destination of  the contraband.   Under such  circumstances,

his credibility was for the jury.

          During  the  cross-examination of  Portalatin, the

defense  attorney   discovered  for  the  first   time  that

Portalatin, during his debriefing  by government agents, was

shown a picture of Ortiz Cameron.  He immediately identified

the picture, saying "That's Hiram."  It does not appear that

any  suggestive comment was made.  This picture was not part

of a  spread, however, and it was shown to Portalatin in the

                            -5-
                             5

course of the discussion of his participation in the various

drug transactions.

          Defense counsel moved that  Portalatin's testimony

concerning  Ortiz  Cameron   be  stricken  as   unacceptably

tainted.  Among other  reasons, he asserted that he  had not

been shown the photograph in question, and that the evidence

packet  furnished by  the  prosecution contained  copies  of

photographs which  were simply  blotches of white  on black.

The prosecutor replied that  all defendants had been invited

to  the office of the United  States Attorney to view all of

the government's hundreds of exhibits, but that none of them

had taken  advantage of  the opportunity.   The  trial judge

made  no  explicit  finding,  but  apparently  accepted  the

prosecution's explanation.  He offered to suspend the trial,

however,  to  provide  defense  counsel  an  opportunity  to

examine the photo  and to develop  any evidence of  improper

suggestion.  Counsel declined  and proceeded with the cross-

examination of Portalatin.   Not until eight days later,  at

the close of all  the evidence, did counsel move  for a voir
                                                            

dire  of Portalatin  to explore  any  possible taint.   This
    

untimely motion was denied.

          The   reliability   of  identification   testimony

allegedly tainted by reason  of an impermissibly  suggestive

                            -6-
                             6

photograph should be resolved after consideration of all the

circumstances.   Manson v.  Brathwaite, 432 U.S.  98, 113-14
                                      

(1977); United States  v. Bouthot, 878 F.2d  1506, 1514 (1st
                                 

Cir. 1989).  In  this case, it would appear  that Portalatin

had  spent over two hours  in the close  company of "Hiram,"

albeit at night and under difficult circumstances.   He knew

Hiram's first name before the photograph was identified.

          The district judge's offer to suspend the trial to

permit further investigation was refused.  The defendant was

doubtless entitled to a  voir dire examination of Portalatin
                                  

before proceeding with the cross-examination,  but certainly

not eight days  later.  There was no error  in the denial of

his untimely motion.   Similarly,  we find no  error in  the

trial judge's decision to permit Portalatin's identification

to stand.  

          Ortiz Cameron  also alleges error in the admission

of testimony  concerning his  disappearance from  his normal

whereabouts immediately  after the  "La Furnia"  episode and

concerning his wealth,  which the government asserted  could

only be explained by his participation in illicit drug deals

over  a period of time.  The defendant had ample opportunity

to  rebut such  testimony.    It  is well  established  that

unexplained flight  or a defendant's attempt  to conceal his

                            -7-
                             7

identity  may  be relevant  evidence of  guilt.   See, e.g.,
                                                            

United  States v.  Grandmont, 680  F.2d  867, 869  (1st Cir.
                            

1982).  Similarly, evidence  of the acquisition of otherwise

unexplained  wealth  may   corroborate  other  evidence   of

participation in lucrative crimes.   United States v. Ariza-
                                                            

Ibarra,  605  F.2d  1216,  1224-25 (1st  Cir.  1979),  cert.
                                                            

denied, 454 U.S. 895 (1981). 
       

3.  Severance.
             

          All  three defendants  moved  before  trial for  a

severance  on the  ground  that there  would be  prejudicial

"spill-over"  of evidence  from one  to the  other.   Such a

motion  is addressed  to the sound  discretion of  the trial

judge.  United  States v.  Natanel, 938 F.2d  302, 308  (1st
                                  

Cir.  1991), cert.  denied,  112 S.  Ct. 986  (1992); United
                                                            

States v.  Boylan,  898  F.2d 230,  246  (1st  Cir.),  cert.
                                                            

denied,  111  S.  Ct.  139  (1990).   Where  defendants  are
      

indicted in  a common conspiracy, there  necessarily will be

evidence  relevant  to the  charges  against  more than  one

defendant, and properly so, since co-conspirators are liable

for all of the  criminal acts carried out in  furtherance of

the conspiracy.   United States v. Figueroa,  976 F.2d 1446,
                                           

1452 (1st Cir. 1992).  The district judge properly exercised

                            -8-
                             8

his discretionary  power in denying the  motion and properly

instructed the  jury to  consider the evidence  against each

defendant separately.

          Defendants  Ortiz  Arrigoitia  and Medina  Vazquez

renewed  their  motion  after  the defendant  Ortiz  Cameron

called Rafael  Tormes, a convicted  member of the  same drug

conspiracy, as a  witness.  On  the stand, Tormes  testified

that  Ortiz Cameron  had nothing  to do  with the  La Furnia

unloading.    He  did  not  in  any  way  incriminate  Ortiz

Arrigoitia or  Medina Vazquez.  No  inconsistent defense was

presented.  All that  occurred was that on cross-examination

Tormes  corroborated  some of  the  details  of Portalatin's

testimony.   The prejudice  claimed by Ortiz  Arrigoitia and

Medina  Vazquez is  that by  so doing  Tormes bolstered  the

credibility   of  Portalatin   to  their  detriment.     The

defendants  have  offered no  authority  in  support of  the

dubious proposition  that this entitles them  to a mistrial,

and we have found none.   See United States v. Angiulo,  897
                                                      

F.2d    1169,   1194-95    (1st    Cir.    1990)    (finding

withdrawal/noninvolvement       defense       insufficiently

antagonistic to require severance); United States v. Luciano
                                                            

Pacheco, 794  F.2d 7, 8-10 (1st Cir.  1986) (explaining that
       

the degree of antagonism must go beyond mere finger pointing

                            -9-
                             9

into  the realm  of fundamental  disagreement over  core and

basic facts); United  States v. Talavera, 668 F.2d  625, 630
                                        

(1st Cir.) (concluding that antagonistic defenses do not per

se require severance, even if the defendants are hostile  or

attempt to cast blame on each other), cert. denied, 456 U.S.
                                                  

978  (1982).    The   district  judge  properly  denied  the

defendants' motions for severance and a mistrial.

4.  Improper Argument.
                     

          In  the  course  of   his  closing  argument,  the

prosecutor  said with  reference to  the defense  attorneys,

"they want like to scramble your heads, confuse you."  After

an  objection was overruled,  the prosecutor  repeated "They

wanted to  confuse your head."   Later the  prosecutor said,

"Do not  let the attorneys  here intimidate you,  ladies and

gentlemen  --  ."1    Defense  counsel objected.   The judge

responded by addressing the jury: "I don't  believe that the

attorneys for the defendants  are intimidating the jurors so

--."

          In  this particular instance  we are not persuaded

that  these  comments  were  so prejudicial  as  to  require

                    

1This  quotation  and  the  following  one  were  unfinished
sentences  according  the  transcript and  are  not ellipses
created by the author of this opinion.

                            -10-
                             10

reversal.    We  do  not  understand,  however,  why,  after

numerous warnings from this court, the prosecuting attorneys

in  the District  of Puerto  Rico persist  in spiking  their

arguments  with comments that put their cases at risk.  See,
                                                            

e.g.,  United States v. Nickens, 955 F.2d 112, 120 (1st Cir.
                               

1992); United  States v. Soto-Alvarez, 958  F.2d 473, 477-78
                                     

(1st  Cir. 1992); United States  v. de Leon  Davis, 914 F.2d
                                                  

340, 344-45 (1st Cir. 1990).

                            -11-
                             11

5. Sentencing errors.
                    

          Medina  Vazquez  argues  that  the  district judge

erroneously  refused to  reduce  his offense  level by  four

because  of his  minimal participation.   U.S.S.G.    3B1.2.

The comment (n. 2)  to the cited section suggests  that this

reduction should  be used sparingly,  e.g., in a  case where

the  defendant was engaged in a single off-loading.  In this

case  there was  credible evidence  that Medina  Vazquez had

been involved in a  number of off-loadings.  In  the absence

of any transcript of  the sentencing hearings in  either the

record or the supplementary record, we shall assume that the

district  judge made  appropriate  findings of  fact.   See,
                                                            

e.g.,  Valedon Martinez v.  Hospital Presbiteriano, 806 F.2d
                                                  

1128, 1135 (1st Cir. 1986) ("We have held repeatedly that we

will not review a claim of error if the appellant has failed

to include a  transcript of the pertinent proceedings in the

record on appeal.").

          Ortiz  Cameron  argues  that  the  district  judge

failed  to make  sufficiently detailed  findings of  fact in

resolving  factual  disputes  raised  by  objections to  the

presentence investigation  report ("psi").   In fact,  those

objections to the psi present in our record on appeal raised

no substantial  factual issues, except that  of guilt, which

                            -12-
                             12

had already been resolved by the jury.  The district judge's

findings were more than adequate under the circumstances.

6. Ineffective assistance of counsel.
                                    

          Ortiz  Cameron  alleges ineffective  assistance of

trial  counsel.    We  have  repeatedly  held  that,  absent

exceptional circumstances, this claim  is not open on direct

appeal  unless  it has  been  previously  raised before  the

district  judge,  who is  in the  best  position to  make an

initial judgment.   See, e.g.,  United States  v. Gray,  958
                                                      

F.2d 9, 15 (1st Cir. 1992).  This issue was not presented to

the district  judge, who in  fact praised trial  counsel for

his diligence at one point in the trial.

7. Recusal.
          

          After  the  trial in  this  case  the trial  judge

recused himself  from the trial of  Sonia Berrios Rodriguez,

"La  Nena,"  the purported  head of  the  drug ring,  on the

grounds  of  his  familiarity with  the  facts  of the  case

because of previous  related trials, of which this  was one.

Ortiz  Cameron claims  that this  shows that  the judge  was

prejudiced and should have recused himself earlier.  In fact

the judge was under no obligation to recuse himself from the

                            -13-
                             13

trial of  "La Nena," but did  so as a matter  of discretion.

In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989).
                        

Defendant's argument is frivolous.

8.  Motion for Mistrial Resulting from Jury Misconduct.
                                                      

          The  major controversy in  this case swirls around

events stemming from allegations of juror misconduct.  There

are two issues that  arise in this context.   First, we must

decide whether  the district court's finding regarding juror

impartiality was clearly erroneous.   Second, we must decide

whether  a   remark  made   by  the  district   court  while

investigating the question  of juror impartiality improperly

shifted  the burden of proof.  While these two questions are

factually intertwined  in this case,  they are  analytically

distinct, and we therefore consider them seriatim.
                                                 

                      A.  Background.
                                     

          At the  close of the government's  case, the judge

was advised that the daughter of a juror, who had been daily

accompanying her mother  to the court, had been  observed in

prolonged conversation with a  young woman identified as the

girl friend of  the defendant Ortiz  Cameron.  The  district

judge  then interviewed  the  daughter and  her mother,  the

                            -14-
                             14

juror.  It appeared from these interviews that the juror had

discussed  the case  at length  with  her daughter,  and had

expressed  very definite  views about  the testimony  of the

government's  witnesses.   The  daughter  also reported  her

understanding from  talking with her mother  that the jurors

had discussed the case among themselves.  The juror was then

segregated from the other jurors and later excused.  

          The  judge then  summoned all  of the  jurors into

chambers, one by one, and asked them the following series of

questions:

          l.   At this  point, have you  discussed with  the
          jurors or  anyone else  the guilt or  innocence of
          the defendants?

          2.   Have you  discussed with  the other
          jurors or with  anyone the reputation of
          the defendants?

          3.   Have  you discussed with  the other
          jurors   or   with   anyone   else   the
          credibility of any of the witnesses?

          4.   At this  point, have you  reached a
          decision   regarding    the   guilt   or
          innocence of the defendants?

All  of  the  jurors except  one  answered  the first  three
questions in the negative.   One juror said that  he thought

he  had  heard some  comment about  the  case but  could not

remember what it was about.  Four  jurors, however, answered

the fourth question in the affirmative, indicating that they

had reached a decision concerning the  guilt or innocence of

                            -15-
                             15

the defendants.  The judge then  recalled these four jurors,

again one at a time, and addressed each one as follows: 

          As I instructed you before, the guilt or
          innocence of the  defendants is  decided
          after  listening to all the evidence, to
          the  final  summations of  the attorneys
          and after applying  the instructions  as
          to the law to be given by me.

          And my question is, would you be able to
          keep an  open mind and in  the course of
          your  deliberations   with  your  fellow
          jurors,  re-examine  your own  views and
          change your opinion  if convinced it  is
          erroneous?

All  four  of  the   jurors  answered  emphatically  in  the

affirmative.  The  district judge then declared that  he was

satisfied  that  the  jurors  would  carry  out  their  duty

properly,  based on  their  answers and  his observation  of

their demeanor.

          Counsel for Ortiz  Cameron and counsel  for Medina

Vazquez (and  counsel for another defendant  whose appeal is

not  before us)  moved for  a mistrial.   Counsel  for Ortiz

Arrigoitia expressly  declined to so  move at that  time and

joined in the motion only at the very end of  the case, just

before  closing  arguments.    In response  to  the  judge's

comment, counsel  for Ortiz Arrigoitia admitted  that he had

initially refrained from joining  the motion for the purpose

of claiming double  jeopardy if the motion  had been granted

                            -16-
                             16

without his consent.   It is  our view that  a motion for  a

mistrial  should  be made  promptly.   This  was no  case of

mistake  or inadvertence,  but one  of deliberate  delay for

tactical purposes.   Failure  to  make a  timely motion  for

mistrial under these circumstances constitutes  a waiver and

precludes consideration of this issue on appeal with respect

to Ortiz  Arrigoitia.   Cf. United  States v. DiPietro,  936
                                                      

F.2d  6,  9-10  (1st  Cir.  1991)  (inferring  waiver  of  a

defendant's   constitutional   protection   against   double

jeopardy   from  silence   where  the   defendant  had   the

opportunity  to object  but failed  to do  so until  one day

later); Grimaldi  v. United States,  606 F.2d 332,  339 (1st
                                  

Cir.)  (explaining that where  defendant had the opportunity

to renew a motion for mistrial for prosecutorial misconduct,

but  declined  to do  so, the  claim  was not  preserved for

appeal),  cert.  denied, 444  U.S.  971  (1979); Saville  v.
                                                            

United States, 400 F.2d 397, 400 (1st Cir. 1968) (concluding
             

that motion for mistrial was untimely where defendant failed

to act at the  earliest possible opportunity), cert. denied,
                                                           

395 U.S. 980 (1969). 

                B. District Court's Finding.
                                            

                            -17-
                             17

          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.  See, e.g., Boylan, 898 F.2d at 258; United
                                                            

States v.  Anello,  765  F.2d  253, 259  (1st  Cir.),  cert.
                                                            

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

F.2d  398, 400  (1st Cir.  1979).  The  trial judge  is not,

however, shackled  to a rigid  and unyielding set  rules and

procedures  that  compel any  particular  form  or scope  of

inquiry.    Rather, in  light  of  the  infinite variety  of

situations in which juror  misconduct might be discerned and

the need to protect  jurors and the jury process  from undue

imposition, the trial judge is vested with the discretion to

fashion   an  appropriate   and  responsible   procedure  to

determine whether misconduct  actually occurred and  whether

it was  prejudicial.  Boylan, 898  F.2d at 258.   As we have
                            

often  explained, "A  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.

          In this  case, upon  discovering that a  juror may

have  spoken  about  the  trial  to  her  eighteen  year-old

                            -18-
                             18

daughter,  the district court immediately summoned the juror

and  the daughter to chambers for separate interviews in the

presence of all counsel.   The juror confirmed that  she had

spoken to her daughter about the defendants, but denied that

she had  talked to  the other jurors  about the  case.   The

district  court promptly segregated  the juror and announced

his  intention  to  interview  individually  all  jurors  to

determine  if any others  had been  tainted.   The following

morning  all  jurors  denied  speaking  about  the  case  to

outsiders or each  other, though  one thought  he had  heard

some  comment  among  the  jurors  about  the  case  without

identifying  what  those comments  concerned.   Counsel were

present but  were not  permitted to participate  directly in

the interviews; however, the questions posed by the judge to

the  jurors  reflected   concerns  previously  expressed  by

counsel.  Counsel has no right to pose specific questions to

a  juror or to pursue every desired  avenue of inquiry.  The

control and direction of  a court's investigation into juror

misconduct is  within the discretion of  the district court,

not defense counsel.  Corbin, 590 F.2d at 400.
                            

          After  interviewing all  the  jurors and  relevant

third parties,  consulting with  counsel,  and weighing  the

testimony, demeanor, and credibility of the various parties,

                            -19-
                             19

the  court found  the jurors  were not  partial.   The trial

court conducted an adequate  investigation into the  alleged

misconduct  and reached  a reasonable  conclusion about  the

jurors'  impartiality.   Ortiz  Cameron  and Medina  Vazquez

present no compelling  evidence to the contrary  and we find

nothing  in the  record that  leads us  to believe  that the

district  court's  investigation   was  inadequate  or   his

findings clearly erroneous.2

                    C. Remark By Judge.
                                       

          It  is  also  suggested that  the  district  court

shifted the burden of  proof when it asked the  four jurors:

"would you be able to keep an open mind and in the course of

your deliberations  with your fellow  jurors, reexamine your

own  views  and  change  your  opinion  if  convinced it  is

erroneous?"  Although recognizing that the judge's remark is

                    

2Our  dissenting colleague  suggests an  "alternative ground
for  reversal" --  the district  court's failure  to inquire
into  Juror  Carrero-Roman's statement  that members  of the
jury  had  discussed  the  case.    See  Stahl,  n.9.    The
                                       
defendants, however, have not specifically argued this issue
on appeal.  In any event, we do not consider the alternative
ground to be meritorious.   Juror Carrero-Roman's answer was
extremely indefinite and, on the facts of this case, did not
require  a  full-fledged judicial  inquiry.   Moreover,  the
judge essentially conducted  a full-fledged inquiry when  he
asked the  other jurors questions which  would have revealed
precisely the impropriety which Judge Stahl fears.

                            -20-
                             20

less  than a  textbook model,  we do  not view  the language

employed,  in   the  specific  context  of   this  case,  as

suggesting that  the defendants  bore the burden  of proving

their innocence.

          First, the judge's  remark was not an  instruction

at  all but a question asked mid-trial  in the context of an

investigation we have  otherwise held to be sufficient.  See
                                                            

supra  Part  A.   Second, the  question  -- even  if somehow
     

deemed to be  an instruction -- did not place  the burden of

proof on any  specific party  but merely  asked whether  the

jurors  retained the  ability  to reexamine  their views  in

light   of   further  developments.     Indeed,   the  judge

scrupulously  avoided  indicating what  particular  views he

thought the  jurors possessed and instead  referred only the

jurors' ability to change their "opinion," whatever it might

be.   Third,  again assuming  that the  question were  to be

deemed  an  instruction, the  defendants  did  not give  the

district court an opportunity  to cure it by, at  any stage,

proposing a sound alternative instruction.

          And,  finally,  assuming  the  question   were  an

instruction,  it must be viewed in the context of the entire

jury charge.  See Boylan, 898 F.2d at 244; see  also Cupp v.
                                                            

Naughten, 414 U.S. 141, 146-47 (1973) ("a single instruction
        

                            -21-
                             21

to  a  jury may  not  be judged  in  artificial isolation").

Here, in  his pre-deliberations  charge, the judge  at least

ten times  explicitly and directly instructed  the jury that

the  government bore  the burden of  proof.3   Moreover, the

judge himself placed his previous questioning of the jury in

context when he stated:

          Except for my instructions to you on the
          law, you should disregard anything I may
          have  said during the  trial in arriving
          at your own findings as to the facts.

Any slight  ambiguity created by the  mid-trial reference to

an  "open  mind," then,  is  adequately  dispelled once  the

                    

3To provide just two examples, the judge stated:

               Indeed the  defendants are presumed
          by law to be innocent.  The law does not
          require  the  defendant  to   prove  his
          innocence or produce any evidence at all
          and no inference whatsoever may be drawn
          from the election of a defendant  not to
          testify.

               The   government,   that   is   the
          prosecution[,]   has   the   burden   of
          providing  or  proving the[  defendants]
          guilty beyond a  reasonable doubt and if
          he fails to do so, you must acquit them.

Later, the judge repeated  that "it is up to  the government
to prove the[ defendants] guilty beyond a reasonable doubt."
Elsewhere in the charge the judge continually instructed the
jury that the government  bore the burden of proof  beyond a
reasonable  doubt  with  regard  to  each  element  of  each
offense.

                            -22-
                             22

"instruction" is viewed in the context of these other, ample

instructions.4

          We find  further support  for our conclusion  in a

fifth  factor --  circuit precedent.   See United  States v.
                                                            

Nickens, 955 F.2d 112,  118-19 (1st Cir. 1992).   In Nickens
                                                            

the district judge, in his opening charge to the jury and in
                                                         

remarks made  to the jury after  closing arguments, actually

issued an "open mind" instruction  very similar to the  mid-
                                 

trial question  asked here.  In finding that the instruction

was  not plain error, we held  that it "merely told the jury

not to evaluate the  evidence it would be hearing  until the

evidence  was  all  in  and   the  court  had  rendered  its

instructions."  Id. at 118.  We further noted that:
                   

          Telling  a  jury  to  postpone  making a
          final  judgment  until all  the evidence
          has  been  presented, does  not instruct
          the jury as to the weight or effect that
          should be  given to  any aspect of  that
          evidence  -- nor  to the  presumption of
          innocence  --  when  making their  final
          judgment.

Id. at 119.  Given this precedent, and given the  four case-
   

specific  factors  we  have  identified, we  find  that  the

                    

4We note,  however, that this entire  situation could easily
have been  avoided had the  judge instructed the  jurors, at
the  time this issue arose,  that the burden  of proving the
defendants' guilt always rests with the government.

                            -23-
                             23

remarks  made by  the district  judge did  not impermissibly

shift the burden of proof.5

          Affirmed.
                   

                    

5The judge below also made a mid-trial "open mind" statement
which  is more easily construed as an "instruction."  As the
dissent   acknowledges,  however,  no  one  challenged  this
statement at any  stage.  If we were to  review it, then, it
would  be  under a  plain  error  rubric and  Nickens  would
                                                     
directly control.

                            -24-
                             24

         STAHL,  Circuit Judge, (Dissenting).  With respect,
         STAHL,  Circuit Judge, (Dissenting).
                              

I  dissent from the  majority opinion because  I believe that

the  district  court's  response  to  the  juror   misconduct

allegations in this case obliges us to grant defendants a new

trial.  With  regard to  this issue, the  majority rests  its

affirmance on the well-established  rule that district courts

have discretion  "to fashion  an appropriate  and responsible

procedure  to determine  whether [juror]  misconduct actually

occurred  and  whether  it was  prejudicial."    Ante,  at 15
                                                    

(citing Boylan,  898 F.2d  at 258).    While I  agree that  a
             

district court  has broad discretion to  determine the nature
                                                            

of its inquiry into allegations of juror misconduct, I do not

think that that discretion is  so broad as to permit  a court

to commit errors of constitutional dimension while performing

that inquiry.

         Here, the  district court, in its  effort to assess

whether juror  misconduct had occurred, selected  a method of

inquiry  which had the effect, in my opinion, of shifting the

burden  of  proof  from  the government  to  the  defendants.

Moreover, the court's failure properly to instruct the jurors

of the government's burden of proof compounded the error.  As

a result, I  am of the opinion that the  motions for mistrial

should  have  been  granted.   For  these  reasons,  I  would

reverse.

                            -25-
                             25

         This case, in my  view, cannot properly be resolved

without  a detailed  summary  of the  events surrounding  the

court's  response to  the  juror misconduct  allegations.   I

begin therefore with a recitation of these facts.  

         When  the  question  of  possible  juror misconduct

arose, the district judge immediately and correctly commenced

an  interrogation of  a young  woman, the  daughter  of Juror

Gonzales,  who had  been seen  conversing with  a defendant's

girlfriend.   During the inquiry,  it became apparent  to the

court that  the daughter  and the defendant's  girlfriend had

discussed that  defendant's innocence.  It  also became clear

that the daughter had discussed many aspects of the case with

her  mother, Juror  Gonzales.   As a  result, the  court then

interrogated Ms. Gonzales.  

         Juror  Gonzales  admitted that  she had  engaged in

discussions with her  daughter about the  case.  She  denied,

however, having  expressed  any opinion  as to  the guilt  or

innocence of  the defendants,  and  generally downplayed  the

extent  and content of the discussions.  She also stated that

no  juror had  indicated  an  opinion  as  to  the  guilt  or

innocence of the defendants.  

         At    the    conclusion    of   Juror    Gonzales's

interrogation,  counsel  for  defendant  Diaz  Fernandez  and

counsel for defendant Ortiz Cameron moved for a mistrial.  In

response, the court first indicated that it did not intend to

                            -26-
                             26

question  any  of  the other  jurors.    The AUSA  requested,

however,  that the court reconsider that decision.  The court

then indicated that it  would take no action on  the mistrial

motions  that  evening  but  would  decide  what  to  do  the

following  morning.    Ortiz  Cameron's  attorney  then,  for

unexplained reasons, retracted his motion for mistrial.

         The   following   morning,   the  court   commenced

interrogations  of  each  of  the  remaining  twelve  jurors,

beginning with the jury foreman.  Counsel took no part in the

formulation of the following four questions: 

         (1) At this point have you discussed with
         the other jurors or with  anyone else the
         guilt  or  innocence  of the  defendants?
         (2) Have  you  discussed with  the  other
         jurors or with  anyone the reputation  of
         the defendants?   (3) Have  you discussed
         with the other jurors or with anyone else
         the credibility of the defendants? (4) At
                                            (4) At
         this  point have  you reached  a decision
         regarding  the guilt or  innocence of the
         defendants?  
         defendants?

         The foreman and eight  of the other jurors answered

"no" to all four  questions.  One  of those jurors, Mr.  Luis

Carrero  Roman,  however,  answered question  three  with the

statement: "Well,  I can say it is hard  for me to say yes or

no  because yes, we made comments between us but nothing that

I  can  say  yes or  no."    Four  other jurors  (hereinafter

referred   to  collectively  as   "the  four  jurors")  while

answering "no"  to the first three  questions, answered "yes"

to the critical fourth question.  

                            -27-
                             27

         At this juncture,  the Court individually  recalled

the four  jurors.  The court  then asked the  four jurors one

question,  a question  which,  in my  opinion, was  seriously

leading.   Before asking  the  question, the  court made  the

following statement:  

         As I instructed you  before, the guilt or
         innocence  of  the defendants  is decided
         after listening to  all the evidence,  to
         the final summations of the attorneys and
         after applying the instructions as to the
         law to be given by me.

The court followed this statement with:  

         And my question is,  would you be able to
         keep an  open mind  and in the  course of
         your   deliberations  with   your  fellow
         jurors,  re-examine  your  own views  and
         change  your opinion  if convinced  it is
         erroneous?

Each  of  the  four  jurors answered  this  question  in  the

affirmative.    Juror Luis  Carrero  Roman,  who admitted  to

having  engaged in  discussions  with other  jurors, was  not

recalled.  At no time did the court allow counsel to speak or

to propose  follow-up  questions.    Indeed,  throughout  the
                                                       

inquiry, the court refused to allow  defense counsel to utter

so much as a word.

         After  the   inquiry  ended,  however,   the  court

entertained objections.  Counsel for  Diaz Fernandez objected

both  to the  length of  the court's  interrogations and  the

leading  nature of the revised question.  He also pointed out

that some jurors  had stated that they either had discussions

                            -28-
                             28

with one another or had already made up their minds.  Counsel

then  renewed his motion for a mistrial, stressing his belief

that  no instruction  could cure  the problem.   Counsel  for
       

defendant Ortiz Cameron then  joined the motion for mistrial,

arguing   that  the   presumption  of   innocence   had  been

compromised.   Counsel for defendant Ortiz  Arrigoitia, while

objecting to the court's juror questions, nonetheless did not

join the motion for mistrial. 

         At that point, the AUSA also expressed concern with

the court's inquiry: 

         [O]ne  thing  concerns me,  and  it is  a
         point  brought  up  by [defense  counsel]
         concerning  the  instructions  that  have
         been given by the Court to the petit jury
         to the  effect that  they should  keep an
         open  mind at  all  times until  the end.
         And  apparently  these  four  jurors,  at
         least, have not  kept an open  mind until
         the end of the proceedings.

As a result  of these concerns, the  AUSA urged the  court to

enter specific  findings  as to  the "demeanor"  of the  four

jurors:  

         . . . I  would ask that the  court make[]
         findings  to the  effect  that [the  four
         jurors] appear[ed] to be quite  sincere .
         .  . .  The bottom  line is,  Your Honor,
         this  is  a  due process  issue,  whether
         these defendants are  being afforded  due
         process  by these  jurors,  and  to  that
         effect, I believe the Court would have to
         enter a finding that yes, they  can, they
         are willing and able to keep an open mind
         and to reach a decision at the end of the
         case  based  upon  the  evidence  and the
         instructions  given by the court. I would
         think  it is  a close  shot, but  I think

                            -29-
                             29

         there is  sufficient information received
         by the  Court through the  questioning to
         make a decision.   

         Immediately  thereafter,  the  court   entered  the

following statement for the record: 

         All right.  This  is a matter of deciding
         whether these jurors, especially the four
         jurors  that  we  have   questioned,  are
         sincere and will be willing to give these
         defendants   all  due  process.    And  I
         believe[,]  and I  so find[,]  that these
         jurors are sincere  and in  the same  way
         they  expressed an opinion that they have
         reached  a decision as  of now, they also
         sincerely are  able to keep an  open mind
         and re-examine their own views .  . . . I
         was  impressed by  the  sincerity of  the
         answers  and the expressions  in the face
         of  each  juror when  I asked  the second
         part of the last question . . . .

The  court  then denied  the  pending  motions for  mistrial.

Subsequently, counsel  for defendant Pedro Rivera  joined the

motions for mistrial. 

         The  court then decided  to excuse  Juror Gonzales,

whose discussions  with her daughter had  inspired the entire

inquiry, a decision approved  by all counsel.  When  the jury

reconvened, the court instructed it as follows:

         So, I  again  repeat my  instructions  to
         you, not  to form or  express an  opinion
         regarding the  guilt or innocence  of the
         defendant, to keep  an open mind.   Don't
         discuss the case among yourselves or with
         anyone else.  Keep an open mind.   

No one objected to this instruction. 

         The   court's  final   instructions  to   the  jury

contained the following:

                            -30-
                             30

         The indictment or  formal charge  against
         the defendant  is not evidence  of guilt.
         Indeed the defendants are presumed by law
         to be innocent.  The law does not require
         the defendant  to prove his  innocence or
         produce  any  evidence  at  all   and  no
         inference  whatsoever  may be  drawn from
         the  election  of  the defendant  not  to
         testify. 

         Under the law a  defendant may or may not
         testify as  he elects  since it is  up to
         the  government  to  prove   them  guilty
         beyond  a  reasonable  doubt  as  I  said
         before.  The  law  does  not  require the
         defendant to take  the witness stand  and
         testify and  no presumption of  guilt may
         be raised  and no  inference of  any kind
         may  be drawn from defendant's failure to
         testify.

         In   addition,   the  court   gave   several  other

"reasonable  doubt" instructions  in connection  with various

aspects  of  the  case.     At  no  time,  however,   did  it

unequivocally instruct that the burden of proof was always on
            

the government.6  

                   

6.  In its initial  charge to the jury,  the court instructed
on the government's burden as follows:

         The indictment or  formal charge  against
         the  defendant is not  evidence of guilt.
         Indeed the     defendants are presumed by
         law  to be  innocent.   The law  does not
         require  the  defendant   to  prove   his
         innocence  or produce any evidence at all
         and no inference  whatsoever may be drawn
         from the  election of a defendant  not to
         testify. 

         The government, that  is the  prosecution
         has  the burden  of providing  or proving
         them guilty beyond a reasonable doubt and
         if  he (sic)  fails  to do  so, you  must
         acquit them. Thus, while the government's

                            -31-
                             31

         The  majority concludes  that  the  district  court

reached a reasonable conclusion about the impartiality of the

jurors and that defendants  Ortiz Cameron and Medina Vazquez:

         present  no  compelling  evidence to  the
         contrary  and  we  find  nothing  in  the
         record that  leads us to believe that the
         district   court's   investigation    was
         inadequate   or   his  findings   clearly
         erroneous.

Ante, at 16.   Respectfully,  my review of  that same  record
   

leads me to the opposite conclusion. 

         When faced with four  jurors who admitted that they

had formed an  opinion about  the guilt or  innocence of  the

defendants, the district court brought these four jurors into

chambers  again and, in  my view, structured  the "open mind"

question in such  a way  that "yes" was  the only  acceptable
                                                

response.  Before asking  the question, the court effectively

admonished the four jurors, reminding them of its instruction

at the beginning of the trial to determine guilt or innocence

only after hearing all of the evidence.  One does  not need a

degree  in  psychology to  understand  the  effect that  this

statement  had on  the  four jurors'  ability to  answer this

critical "question" in a calm and uninhibited manner.  

         At pages 17-19 of the majority opinion, my brethren

offer  five  reasons  why this  question  did  not,  in their

                   

         burden of  proof  is a  strict  or  heavy
         burden,  it  is  not necessary  that  the
         defendant's  guilt  be proved  beyond all
         doubt. 

                            -32-
                             32

estimation,  shift the burden of proof.   I do not think that

any  one  of  these  five  points  sufficiently  answers  the

problem.   With the first  four points,  I am afraid  that my

colleagues have ceded analysis to semantics, and have exalted

form  over substance.   I  cannot join  in such  an approach,

particularly where, as here, the fundamental right to  a fair

trial is at stake.

         As  to  the  majority's  fifth point  -  i.e.,  its
                                                      

reliance  upon   Nickens,  955   F.2d  at  118-19,   for  the
                       

proposition that  the judge's "open  mind" instruction  cured

any such shifting of the burden of  proof - I am baffled.  In

Nickens, we  upheld almost identical "open mind" instructions
      

only after acknowledging that they were problematic.  See id.
                                                            

at 118  (affirming  instructions "[w]ithout  endorsing  their

form").   We were  analyzing those instructions  to determine

whether they alone had the effect of negating the presumption
                 

of  innocence.   We reasoned  that those  instructions "would

[not]  normally suggest  to  the jury  that the  government's
              

burden of proving  guilt is  equal to  defendant's burden  of

proving  innocence."    Id.  (emphasis  supplied).    Finding
                          

nothing  extraordinary in  that case,  we concluded  that the

instructions were  not "so  egregious as to  constitute plain

error."  Id.
           

         Here,  however, we  are  not reviewing  this  "open

mind"  instruction  to determine  whether  it  alone had  the

                            -33-
                             33

effect of negating the presumption of  innocence.  Rather, we

must determine whether this otherwise problematic instruction

cured the multi-layered burden of proof problems presented by
    

this case.  I  think it obvious that this  instruction cannot

and  should  not  be  viewed  as  curative.7    As  such,  my

colleagues'  reference  to  Nickens as  controlling  "circuit
                                  

precedent" is entirely unpersuasive.

         In  sum,  it  is  my strong  opinion  that  when he

reconvened  the jury,  the trial  judge had an  obligation to

cure any potential misperceptions  his colloquy may have left
                                     

in the minds of  the four jurors on the  fundamental question

of who bears the burden of proof.  Waiting until the very end

of  a lengthy  trial to  instruct the  jury properly  on this

question  does  not  alleviate  the prejudice.8    Under  any
                                                         any
                                                            

standard  of  review, I  think  these  convictions should  be

reversed and that defendants should be granted a new and fair

                   

7.  Moreover, I  do not think  that the court's  error should
escape  review  merely because  it  entered  into the  record
specific   findings  about   the   "demeanor"   and   visible
"sincerity" of each of the juror's answers to the question.

8.  To  bolster its  affirmance, the  majority refers  to the
numerous occasions  on which  the district court,  before the
juror misconduct allegations surfaced, instructed the jury on
the  burden  of  proof.   Those  instructions  are,  however,
utterly irrelevant in determining whether the district court,
later in the trial, made statements or gave instructions that
may have negated the presumption of innocence.

                            -34-
                             34

trial.9  Any other  result denies these defendants  a "`basic

protection'" afforded by the Constitution, a protection which

reflects "`a  profound judgment  about the  way in  which law

should be  enforced and justice administered.'"   Sullivan v.
                                                         

                   

9.  I  further  note  that  the  majority  opinion  does  not
adequately address  the district  court's failure to  inquire
into Juror Luis Carrero Roman's admission that members of the
jury had,  in fact,  conversed about  the case.   As  we made
clear in United  States v.  Richman, 600 F.2d  286, 295  (1st
                                  
Cir. 1979), a trial court  should conduct the following four-
part inquiry when faced with allegations that jurors may have
acted improperly:

         [1]  ascertain   whether  the  misconduct
         actually   occurred;   [2]  if   it  did,
         determine whether it was prejudicial; [3]
         if not clearly unprejudicial, grant a new
         trial; [and] [4]  specify reasons if  the
         court   determines    either   that   the
         misconduct did  not take place or was not
         clearly prejudicial. 

Id. (citing United States  v. Doe, 513 F.2d 709,  711-12 (1st
                                
Cir. 1975)).   Here, after learning  from Juror Carrero  that
members  of the  jury  had discussed  the case,  the district
court  failed to inquire further and refused to allow defense
counsel  to interject follow-up questions.   As a result, the
record contains  no evidence about what  types of discussions
                  
Juror Carrero may  have had  with other jurors,  or may  have
overheard.   We are left to  speculate.  In light  of all the
circumstances, I  consider this error an  alternative grounds
for reversal. 
    Furthermore, I cannot agree with the majority's cavalier
conclusion  that  "the  judge essentially  conducted  a full-
fledged  inquiry when  he  asked the  other jurors  questions
which  would have  revealed precisely  the impropriety  which
Judge  Stahl fears."    Ante, at  16 n.2.   First  the record
                           
contains  no such  "full-fledged inquiry";  and, second,  any
inquiry  of  "the  other  jurors"  could  not  possibly  have
revealed  anything about  what Juror  Carrero did or  did not
know  about  the  putative  juror misconduct.    It  appears,
therefore, that the once  strict requirements of Richman have
                                                       
been relaxed to such an extent that a district court  now has
discretion, according to the majority, to conduct essentially
no inquiry at all.
 

                            -35-
                             35

Louisiana, No. 92-5129, 1993  WL 179275, at *4 (U.S.  June 1,
        

1993)  (quoting  Duncan  v,  Louisiana,  391  U.S.  145,  155
                                     

(1968)).  I therefore dissent.

                            -36-
                             36
