                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-2002

USA v. Vega
Precedential or Non-Precedential:

Docket No. 00-5191




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PRECEDENTIAL

       Filed April 1, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-5191

UNITED STATES OF AMERICA

v.

CARLOS IGNACIO VEGA,

       Appellant

Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 99-cr-00131)
District Judge: Honorable Mary Little Cooper

Argued: February 6, 2001

Before: BECKER, Chief Judge, AMBRO and STAPLETON,
Circuit Judges

(Filed: April 1, 2002)

       Michael A. Robbins, Esquire
        (Argued)
       304 University Avenue
       P.O. Box 863
       Newark, NJ 07101

       Counsel for Appellant




       George S. Leone, Esquire
       Elizabeth S. Ferguson, Esquire
        (Argued)
       Office of United States Attorney
       970 Broad Street, Room 700
       Newark, NJ 07102

       Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge:

Carlos Vega appeals from his conviction for conspiracy to
distribute and possess with intent to distribute more than
one kilogram of heroin in violation of 21 U.S.C.SS 841(a)(1)
and 846. We decide three issues: (1) whether the District
Court abused its discretion when it admitted evidence of
Vega’s participation in a prior drug conspiracy; (2) whether
the District Court clearly erred when it admitted into
evidence the contents of spiral notebooks taken from a
prior drug conspiracy and conversations on the defendant’s
cellular phone as statements in furtherance of conspiracy;
and (3) whether the District Court abused its discretion
when it failed to dismiss a juror who admitted to feeling
threatened by the conduct of a spectator at the trial but
assured the Court that he could remain impartial. The
District Court had subject matter jurisdiction pursuant to
18 U.S.C. S 3231. We exercise appellate jurisdiction under
28 U.S.C. S 1291. We find no error by the District Court.

I. Background Facts and Procedural History

On February 24, 1999, Carlos Vega was arrested when
he picked up over two pounds of heroin from a woman
named Lydia Miranda in a sting operation arranged by the
Government. Miranda had been caught smuggling
approximately one gram of heroin into the United States
from Aruba on February 18, 1999. She was apprehended at
Newark International Airport in Newark, New Jersey by
United States Customs officials and arrested. She then
agreed to cooperate with the Government by placing

                                2


recorded telephone calls to a person in Columbia named
"Jairo," whom she claimed had hired her to transport the
drugs. During one of these calls on February 23, 1999,
Jairo instructed Miranda to call a telephone number and
tell the person who answered that she was calling"on
Jairo’s behalf."

When Miranda made the call to the number provided by
Jairo, a man answered and instructed her to call him again
at a second number. When Miranda called the second
number, the speaker identified himself as "Carlos" and told
her that he had spoken to Jairo the night before. He
arranged to meet Miranda at a McDonald’s restaurant in
Queens, New York the next day and described himself so
that Miranda would be able to identify him. He also stated
that he would meet her "on Jairo’s behalf." The next day,
Miranda went to the McDonald’s and paged the the man at
a number he had provided her. When the defendant, Carlos
Vega, arrived, he called Miranda and told her he was
outside McDonald’s. Miranda then met Vega outside. He
asked her to get into his car and, when she began to
comply, they were both arrested.

At the time of arrest, Vega had on him a piece of paper
that stated "Jairo de parte de," which means"on behalf of
Jairo." The paper also referenced Miranda’s pager number
and the number of pellets of heroin that she carried.
Officers found money remittance forms in Vega’s car with
the name Harold Carbajal on them. Vega told the officers
that his nickname was Nacho, and that he had come to
meet Miranda because a mutual friend named Alejandro
had told him that Miranda needed plumbing work done in
her apartment which he could provide.
After Vega was arrested, he gave law enforcement officers
permission to answer his cellular phone. Special Agent
Velez intercepted five telephone calls. He later testified
before the jury that the same caller, a Spanish-speaking
male, made the first four calls. Each time the caller asked
to speak with Vega, and Velez answered that Vega was
unavailable because he was fixing his car. Velez further
testified that the fifth call he intercepted was made by a
different man, whom Velez recognized as Jairo based on
voice identification from previously recorded calls between

                                3


Miranda and Jairo. In that call, Jairo threatened Vega and
stated, "it’s best if he turned over what he had."

Vega was charged with conspiracy to distribute and
possession with intent to distribute more than one kilogram
of heroin in violation of 21 U.S.C. SS 841(a)(1) and 846. At
trial, the Court was informed that Juror # 7 had felt
uncomfortable because someone in the back of the
courtroom was staring at him. Judge Cooper then
conducted a voir dire of Juror # 7 in order to determine
whether he would be able to continue as an impartial
witness and whether he had communicated his concerns to
any other jurors. This voir dire occurred while the jury was
out of the courtroom on a lunch break.

During the voir dire, Juror # 7 stated that he had noticed
that a man in the gallery was watching him very intently
when he was watching Vega during a playback of one of the
recorded tapes. He explained that when he had leaned
forward to avoid the man’s gaze, the man in the gallery had
moved to keep eye contact with him. He told Judge Cooper:
"My impression was I was uncomfortable and that someone
was paying attention to me specifically." Judge Cooper
instructed Juror # 7 that the particular individual who had
been staring at him would be asked to leave the courtroom
thereafter, and that all family members of Vega would be
told that they were not to engage in any eye contact with
any juror.

During the voir dire, Judge Cooper also permitted defense
counsel to question Juror # 7 about his ability to continue
as an impartial juror. In response, Juror # 7 stated that the
reason he had raised the issue to the Court was that he
had heard stories of retaliation in drug cases and he felt
uncomfortable as a result of the staring. However, he
declined an offer to be escorted to his car from the
courthouse for the remainder of the trial. He also
responded that he would be able to continue as a fair and
impartial juror because he knew the Court was "aware of
the situation."

Juror # 7 was permitted to continue as a juror. Upon
returning to the courtroom, the other jurors were informed
that Juror # 7 had been in the courtroom without them for

                                4
reasons unrelated to the evidence in Vega’s case. As it
turns out, the spectator who had been staring at Juror # 7
was Vega’s brother, but the Court did not inform Juror # 7
of this fact.

Later during the trial, the Government sought to admit
evidence of Vega’s participation in a drug conspiracy in
1997. The evidence consisted of documents handed over to
law enforcement officers by one of the co-conspirators in
the 1997 conspiracy. It also included the testimony of three
witnesses -- Steve O. Lee, a U.S. Customs official, Domingo
Garcia, a postal inspector, and Detective David Kosloske of
the Miami-Dade Police Department -- about the
circumstances under which these documents were in the
Government’s hands.

Lee testified that a packaged computer monitor
containing heroin had been intercepted at the foreign mail
facility in Miami, Florida in September 1997. Garcia
testified that he obtained a warrant permitting him to
install a beeper into the package and that he called
Detective Kosloske at the Dade County Detective Office to
make plans to attempt a controlled delivery of the package
in order to determine the participants in the sending and
receiving of the package. Garcia and Kosloske set up
surveillance to apprehend any individual who accepted
delivery of the package. They witnessed a young woman,
named Maria Arocha, pick up the package and get into a
green Honda driven by Vega. They followed the vehicle to
the apartment complex where Arocha and Vega were
detained and questioned.

Kosloske testified that Arocha gave him spiral notebooks
that reflected "expenses related to the narcotic organization
she was working for." These notebooks contained frequent
references to the name "Harol Alfredo Carbajal," whom the
Government alleges is the same person referred to as
"Jairo" in this case. They also mentioned Vega, and his
nickname, Nacho. Finally, among the documents handed
over by Arocha was a bill of sale for a green Honda that was
signed by Vega and made out to a person named Jose
Hernandez, whose name also appeared in the spiral
notebooks.

                                5


Vega was never charged with participation in the 1997
conspiracy in part because he told officers that he was
unaware of the contents of the package picked up by
Arocha. Nevertheless, the above testimony regarding Vega’s
participation in the 1997 drug conspiracy, photocopies of
pages from the spiral notebooks provided by Arocha, and
the bill of sale for the green Honda were admitted into
evidence against Vega to demonstrate his knowledge of a
drug conspiracy, and his relationship with one of its
members, when he was apprehended receiving heroin from
Miranda on February 24, 1999.
The jury found Vega guilty of the 1999 drug conspiracy
charge. Vega, in anticipation of his sentencing, met with
the Government for a proffer in the effort to comply with
U.S.S.G. S 5C1.2, which for drug-related offenses provides
in certain instances an exception (or "safety valve") to a
mandatory minimum sentence. Based on the belief that
Vega truthfully provided all information he had concerning
the offense charged as part of a common scheme, he
received a two level downward adjustment. Vega also
received a two level downward adjustment pursuant to
U.S.S.G. S 3B1.2(b) for his minor role in the offense. His
final offense level was 28, criminal history category I, which
resulted in a sentencing range of 78 to 97 months. The
District Court sentenced him to 78 months imprisonment,
five years supervised release, a $500 fine and a special
assessment of $100. Thereafter, Vega filed a timely appeal.

Vega challenges his conviction on three grounds. First,
he alleges that the District Court improperly admitted
evidence from the 1997 drug conspiracy that should have
been excluded under Federal Rule of Evidence 404(b).
Second, he challenges the District Court’s decision to admit
the spiral notebooks received from Arocha’s apartment, and
the cellular phone conversations intercepted by Special
Agent Velez, as evidence in furtherance of conspiracy under
Federal Rule of Evidence 801(d)(2)(E). Finally, Vega
maintains that the District Court erred by failing to dismiss
Juror #7 after he admitted that he felt threatened by a
spectator at the trial.

                                  6


II. Exclusion Under Rule 404(b)

Vega argues that the District Court abused its discretion
by admitting evidence from the 1997 drug conspiracy that
should have been excluded under Federal Rule of Evidence
404(b). The evidence that Vega complains of includes
testimony by the Government’s witnesses regarding his
participation in the 1997 drug conspiracy, photocopies of
pages from the spiral notebooks provided by Arocha, and
the bill of sale for the green Honda taken from Arocha’s
apartment.

Four guidelines given by the Supreme Court govern the
admission of prior "bad acts": (1) the evidence must have a
proper purpose under Rule 404(b); (2) it must be relevant
under Rule 402; (3) its probative value must outweigh its
potential for unfair prejudicial effect under Rule 403; and
(4) the Court must charge the jury to consider the evidence
only for the limited purpose for which it is admitted.
Huddleston v. United States, 485 U.S. 681, 691-92 (1988);
United States v. Console, 13 F.3d 641, 659 (3d Cir. 1993);
Government of Virgin Islands v. Edwards, 903 F.2d 267,
270 (3d Cir. 1990). Vega argues that the Government’s
evidence from the 1997 conspiracy was not introduced for
a proper purpose under Rule 404(b) and was irrelevant
under Rule 402. He also contends that this evidence should
have been excluded under Rule 403 because its prejudicial
effect substantially outweighed its probative value. We
disagree.

The District Court determined that the evidence was
proffered for two permissible purposes: (1) to demonstrate
Vega’s knowledge of the 1999 drug conspiracy, and (2) to
show his relationship with a member of the 1999 drug
conspiracy named Jairo. Evidence of prior bad acts may be
admitted for the purpose of demonstrating the defendant’s
knowledge in the later offense with which he is charged.
See Console, 13 F.3d at 659 (evidence that the defendants
had previously received and submitted fraudulent bills from
other doctors was admissible for the purpose of
demonstrating the defendants’ knowing receipt of
fraudulent bills). An additional unenumerated yet
permissible purpose for admitting evidence under Rule
404(b) is to "demonstrate a continuing relationship between

                                7


an unindicted co-conspirator and the defendant . . .."
United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988);
see also United States v. O’Leary, 739 F.2d 135, 136 (3d
Cir. 1984) (evidence properly admitted to show, inter alia,
the parties’ familiarity with one another, and their
coordinated action). Thus prior bad act evidence may be
admitted for the purpose of demonstrating Vega’s
knowledge of a conspiracy and relationship with one of its
members.1

Vega contends that the evidence should have been
excluded nonetheless because it is not relevant to
demonstrate his knowledge and relationship with a member
of the 1999 conspiracy. He directs our attention to the fact
that he never opened the package containing drugs in 1997
and was never arrested nor charged with any crime related
to the 1997 drug transaction.

However, Rule 404(b) applies to "evidence of other crimes,
wrongs, or acts," not just charged crimes or convictions. It
does not require that a defendant’s participation in the
prior bad act be proven by conviction. Indeed, we have
previously found prior bad acts of defendants relevant
without any indication that they had been charged with or
convicted of crimes stemming from those acts. See, e.g.,
Console, 13 F.3d at 659 (evidence that defendants received
and submitted fraudulent bills from other doctors was
relevant toward demonstrating that the defendants knew
the bills were fraudulent); see also United States v. Atwell,
766 F.2d 416, 421 (10th Cir. 1985) (testimony that various
suppliers had previously paid the defendant kickbacks was
admissible for purposes of demonstrating that the
_________________________________________________________________

1. Although not a ground for decision in the District Court, we note that
the evidence from the 1997 conspiracy could also have been proffered for
the purpose of demonstrating that Vega had the opportunity and/or
intent to participate in the 1999 conspiracy. See, e.g., United States v.
Zolicoffer, 869 F.2d 771, 773 (3d Cir. 1989) (evidence of prior drug
transactions properly admitted to show that defendant had access to
drugs and was willing and hoping to engage in a large scale drug
transaction); United States v. Echeverri, 854 F.2d 638, 644 (3d Cir. 1988)
(evidence of prior drug transaction properly admitted to show that
defendant had access to large quantities of cocaine and was preparing to
establish a large scale drug business).

                                8


defendant had intended and planned a later kickback
scheme).

Moreover, the Supreme Court has explained that
evidence of a similar prior bad act "is relevant . . . if the
jury can reasonably conclude that the act occurred and
that the defendant was the actor." Huddleston , 485 U.S. at
689. It expressly opted for this lower standard of proof
instead of the more rigid preponderance of evidence or
clearly convincing evidence standards. See id. at 687 n.5,
689.

In this case, Arocha admitted there was a drug
conspiracy in 1997 and turned over documents (including
spiral notebooks) that she claimed contained "expenses
related to the narcotic organization she was working for." It
also referred to Vega and his nickname, Nacho. Among the
documents provided by Arocha was a bill of sale for the
green Honda that connected Vega to Jose Hernandez, who
was also mentioned in the spiral notebooks. Finally, the
Government’s witnesses testified that they observed Arocha
get into a green Honda driven by Vega after picking up the
heroin package at the foreign mail facility in Miami. Vega
was thus connected to the green Honda described in the
bill of sale and to Jose Hernandez, who was listed in the
spiral notebooks allegedly documenting transactions in the
1997 drug conspiracy. Based on this evidence, a jury could
reasonably conclude that the alleged 1997 drug conspiracy
occurred, and that Vega was a participant in it. See
Huddleston, 485 U.S. at 689. Moreover, the jury could infer
from Vega’s involvement in the prior drug conspiracy that
he did not unwittingly participate in the drug transaction
with Arocha in 1999, and that he had a relationship with
Jairo, who participated in both conspiracies. The
Government’s evidence was therefore relevant to show
Vega’s knowledge of, and relationship with a member of,
the 1999 conspiracy.

United States v. Garcia-Orozco, 997 F.2d 1302 (9th Cir.
1993), does not persuade us otherwise. In that case, the
Ninth Circuit reviewed whether evidence of the defendant’s
prior arrest for possession with intent to distribute heroin
was relevant to show that he later knowingly imported 120
pounds of marijuana into the United States from Mexico.

                                9


Id. at 1304. The Court believed that the evidence was not
logically relevant to demonstrate knowledge because it was
"unreasonable to expect that the 1988 incident would have
put Garcia-Orozco on ‘notice’ that every car in which he
rode thereafter could contain drugs." Id.

However, the Government’s case against Vega does not
rely on the inference that a defendant who has been"once
burned is twice shy," as it did in Garcia-Orozco.2 Put
differently, it does not attempt to demonstrate the
defendant’s knowing possession by referring back to an
earlier possession offense. Rather, the Government argues,
and we agree, that evidence of Vega’s participation in a
prior drug conspiracy is probative of his knowledge of, and
relationship with a member of, a later drug conspiracy.

We also find no error in the District Court’s finding that
the probative value of this evidence outweighed its potential
for unfair prejudicial effect. See, e.g., United States v.
Palma-Ruedas, 121 F.3d 841, 852 (3d Cir. 1997), rev’d on
other grounds by 526 U.S. 275 (1999); United States v.
Echeverri, 854 F.2d 638, 644 (3d Cir. 1988). We have
previously cautioned that " ‘[i]f judicial self-restraint is ever
desirable, it is when a Rule 403 analysis of a trial court is
reviewed by an appellate tribunal’." Scarfo , 850 F.2d at
1019 (quoting United States v. Long, 574 F.2d 761, 767 (3d
Cir. 1978)).

In this case, the Government’s evidence of Vega’s
participation in the 1997 drug conspiracy was of critical
importance because Vega had denied knowledge of the
1999 conspiracy and alleged that he met Miranda merely to
provide plumbing services. The evidence was highly
probative in demonstrating that Vega knew he was
receiving a drug package from Miranda and that he was
connected to Jairo, who was a participant in both the 1997
and 1999 conspiracies. Although the evidence undoubtedly
_________________________________________________________________

2. "Once burned, twice shy" is a colloquial phrase used by the First
Circuit in United States v. Aguilar-Aranceta, 58 F.3d 796 (1st Cir. 1995),
to describe the inference that someone who has been previously
convicted of receiving packages with drugs would be unlikely to accept,
innocently and unwittingly, mysterious packages a second time for fear
that they might contain drugs. See id. at 801.

                                10


had some prejudicial value, we cannot say that the Court
abused its discretion by concluding that this prejudicial
value was not so unfair as to outweigh its probative value
when we compare this case with cases like Palma-Ruedas
and Echeverri, where evidence of the defendant’s
participation in a prior drug transaction involving fourteen
kilograms of cocaine, and a prior drug transaction involving
five grams of cocaine, was admissible despite its prejudicial
effect. Palma-Ruedas, 121 F.3d at 852; Echeverri, 854 F.2d
at 643-44.

The First Circuit’s decision in United States v. Aguilar-
Aranceta, 58 F.3d 796 (1st Cir. 1995), does not persuade
us otherwise. In that case, the Court expressed concern
that the probative value of the defendant’s prior drug
conviction was low because the prior conviction was remote
in time (four years old). The prior bad act evidence also had
low probative value because it did not appear that the
defendant’s prior conviction would have prevented her from
accepting drugs unknowingly a second time. See id. at 801-
02. Instead it appeared that the defendant’s inability to
speak English had led her to rely unwittingly even a second
time upon a window clerk who insisted that she accept the
package later determined to contain drugs.

Unlike the defendant in Aguilar-Aranceta, Vega was not
charged with mere possession of drugs. He was charged
with participation in a drug conspiracy. The Government
did not try to demonstrate the defendant’s knowing
possession of drugs by admitting evidence of a prior
possession offense, as was done in Aguilar-Aranceta. As
already noted, the Government admitted evidence of Vega’s
involvement in a prior drug conspiracy in order to
demonstrate his knowledge of a later drug conspiracy and
his relationship with one of its members.

Finally, we observe that the District Court gave a proper
limiting instruction making it especially clear that the 1997
evidence should be considered only insofar as it shows
Vega’s knowledge of the 1999 drug conspiracy and
acquaintance with one or more of its members. The Court
repeatedly emphasized that the evidence could not be used
to demonstrate defendant’s bad character or propensity to
commit crimes as required before admitting prior bad act

                                11


evidence before the jury. See Huddleston, 485 U.S. at 691;
Palma-Ruedas, 121 F.3d at 852 n.11; Echeverri, 854 F.2d
at 644; O’Leary, 739 F.2d at 137. We find no error in this
instruction and Vega does not appear to challenge it on
appeal. We also observe that the limiting instruction
provided by the District Court mitigated the potential
prejudice against Vega, thereby reinforcing our belief that
the Court did not err in its balancing under Rule 403. See
Palma-Ruedas, 121 F.3d at 852; Echeverri, 854 F.2d at 644.

In summary, we believe that the evidence from the 1997
conspiracy was admitted for, and relevant toward,
demonstrating two permissible purposes: Vega’s knowledge
of the 1999 conspiracy and his relationship with a member
of that conspiracy. We further believe the District Court did
not abuse its discretion by concluding that the probative
value of this evidence outweighed its potential unfair
prejudicial effect, especially where a lengthy limiting
instruction was given. We therefore find no reason to
conclude that this evidence should have been kept from the
jury.

III. Statements In Furtherance Of Conspiracy
Under Rule 801(d)(2)(E)
Vega argues that the District Court clearly erred when it
admitted into evidence (1) the spiral notebooks received
from Arocha, and (2) conversations intercepted by Special
Agent Velez on Vega’s cellular phone, as statements in
furtherance of conspiracy under Rule 801(d)(2)(E). The
District Court was required to make the following findings
before admitting evidence under that Rule: (1) a conspiracy
existed; (2) the declarant and the party against whom the
statement is offered were members of the conspiracy; (3)
the statement was made in the course of the conspiracy;
and (4) it was made in furtherance of the conspiracy. United
States v. Ellis, 156 F.3d 493, 496 (3d Cir. 1998); United
States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992) (citing
Bourjaily v. United States, 483 U.S. 171, 175 (1987)). These
findings must be supported by a preponderance of the
evidence and are reviewed for clear error. Ellis , 156 F.3d at
496. Vega argues that the District Court improperly
admitted the spiral notebooks and the cellular phone

                                12


conversations because there was insufficient evidence
demonstrating the existence of drug conspiracies in 1997
and 1999, respectively.

When determining whether there is sufficient evidence of
a conspiracy’s existence, the District Court should consider
the independent evidence in the record combined with the
hearsay statements themselves. Rule 801(d)(2) provides
that "[t]he contents of the statement shall be considered
but are not alone sufficient to establish . . . the existence
of the conspiracy and the participation therein of the
declarant and the party against whom the statement is
offered. . . ." Fed. R. Evid. 801(d)(2). An Advisory Committee
Note further explains that the District Court "must consider
in addition the circumstances surrounding the statement,
such as the identity of the speaker, the context in which
the statement was made, or evidence corroborating the
contents of the statement in making its determination as to
each preliminary question." Fed. R. Evid. 801 advisory
committee’s note, 1997 amendment.

Vega’s name and nickname, along with the names of
Maria Arocha, Harol Carbajal, and Jose Hernandez,
appeared in the spiral notebooks taken from Arocha’s
apartment in 1997. In addition, the Government presented
the following independent evidence of a 1997 conspiracy.
Arocha told the officers that there was a conspiracy, that
she was part of it, and that the spiral notebooks contained
records kept by her. Also among the papers provided by
Arocha was a bill of sale for a green Honda signed by Vega
and made out to Jose Hernandez. Moreover, Vega drove
Arocha from the location where she picked up the drug
package to her apartment in a green Honda. We cannot say
that the District Court clearly erred in finding that this
evidence demonstrated the existence of a conspiracy in
1997.
The record also contains evidence sufficient to support
the Court’s finding that a conspiracy existed in 1999.
Miranda had a piece of paper with the name "Jairo" on it
when she was first detained entering the United States from
Colombia. The telephone calls Miranda then made to Jairo
provided the link that there was a conspiracy between
them. Jairo gave Miranda a phone number through which

                                13


she communicated with Vega and made plans to meet him.
When Vega was arrested he had a piece of paper in his
pocket with the phrase, "on behalf of Jairo," Miranda’s
pager number, and the number 142, which corresponded to
the number of drug pellets she was carrying. Vega did not
question Miranda when she asked to be paid and
mentioned Colombia. Vega had a money transfer order in
his car made out to "Harold Carbajal," and the names
"Jairo" and "Harold" were used interchangeably when
Miranda made recorded phone calls in an attempt to reach
Jairo in Colombia.

In short, we believe there was sufficient evidence to
support the existence of both the 1997 and 1999
conspiracies. We therefore affirm the Court’s decision to
admit the spiral notebooks and cellular phone
conversations into evidence under Rule 801(d)(2)(E) as
statements in furtherance of the 1997 and 1999
conspiracies, respectively.

IV. Improper Communication With Juror

Vega argues that the District Court erred by failing to
dismiss Juror # 7 after he admitted that he felt threatened
by a spectator to the trial. The Government responds that
no error occurred because the District Court properly
conducted a voir dire of Juror # 7 through which it
determined that he could continue as an impartial juror
and that no other jurors had been improperly influenced.

We review the District Court’s decision for abuse of
discretion. Government of the Virgin Islands v. Lima, 774
F.2d 1245, 1250 (3d Cir. 1985). The issue to decide on
appeal is whether Vega suffered substantial prejudice from
the improper juror communication. United States v.
Gilsenan, 949 F.2d 90, 95 (3d Cir. 1991). "We make this
determination on the basis of an objective analysis by
considering the probable effect of the allegedly prejudicial
information on a hypothetical average juror." Id; accord
Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir. 1993).

"In a criminal case, any private communication, contact,
or tampering directly or indirectly, with a juror during a
trial about the matter pending before the jury is . . .

                                14


deemed presumptively prejudicial, if not made in pursuance
of known rules of the court and the instructions and
directions of the court made during the trial, with full
knowledge of the parties." Remmer v. United States, 347
U.S. 227, 229 (1954); accord United States v. Console, 13
F.3d 641, 666 (3d Cir. 1993) (holding that presumption of
prejudice applies when there is third-party communication
with a juror regarding the matter pending before the jury).
However, this presumption of prejudice is not conclusive.
See Remmer, 347 U.S. at 229. Rather, the District Court
should hold a hearing in the presence of the defendant at
which the Government has the burden to prove that the
improper communication did not and will not prejudice the
defendant. See id. at 229-30. Although the method of
conducting voir dire during the hearing to determine
prejudice is left to the sound discretion of the District
Court, see Console, 13 F.3d at 667, it must conduct a voir
dire of all jurors with whom the improper communication
occurred that is sufficiently tailored to probe adequately the
possibility of prejudice. Waldorf, 3 F.3d at 710; Console, 13
F.3d at 667.

In Waldorf, the jurors had been exposed to newspaper
articles and other media that revealed inadmissible
evidence. The District Court conducted a voir dire of certain
jurors who admitted they had heard or seen the
information from the media, but the Court failed to do a
"searching inquiry into the extent and nature of the
prejudicial extrajudicial information that reached the jurors
so as to ascertain for itself whether there was a substantial
likelihood of prejudice . . . ." 3 F.3d at 713. We therefore
remanded for a new trial. See id. In Console, the District
Court conducted an individual in camera voir dire of each
juror potentially affected by the improper communication
and on the basis of the voir dire concluded that the
defendant was not prejudiced. 13 F.3d at 667. We
specifically contrasted the thoroughness of the voir dire in
Console with the insufficient voir dire in Waldorf that "failed
to ask voir dire questions ‘designed to elicit answers which
provide an objective basis for the court’s evaluation,’ and
failed to voir dire three of eight jurors individually." Console,
13 F.3d at 667 (quoting Waldorf, 3 F.3d at 712).

                                15


In this case, we find no abuse of discretion because the
District Court conducted a sufficiently thorough voir dire
and determined that there would be no prejudice to Vega
resulting from the improper communication with Juror # 7.
Upon learning that Juror # 7 had concerns about improper
communication from a member of the trial audience, the
District Court held a hearing before counsel and out of the
presence of the rest of the jury. During the voir dire, Juror
# 7 stated: "My impression was I was uncomfortable and
that someone was paying attention to me specifically." He
also stated that the reason he had raised the issue to the
Court was that he had heard stories of retaliation in drug
cases and he felt uncomfortable about being stared down.
However, he also explained that he believed he would be
able to continue as a fair and impartial juror because he
knew the Court was "aware of the situation."

We note that where there is a substantial possibility of
prejudice, "the voir dire must not simply call for the jurors’
subjective assessments of their own impartiality." Waldorf,
3 F.3d at 710. However, there is sufficient evidence apart
from Juror # 7’s own subjective assessment to support the
District Court’s conclusion that he could remain impartial
for the remainder of the trial. For example, during the voir
dire, Juror # 7 declined an offer to provide him with an
escort to his car from the courthouse. This conduct
conveyed that his level of fear was mild and supported his
subjective assessment that he could remain impartial for
the remainder of the trial. The District Court concluded
that Juror # 7’s concerns could be abated by an instruction
that the particular individual who had been staring at him
would be asked to leave the courtroom during the
remainder of the trial, and that all family members of Vega
would be told that they were not to engage in any eye
contact with any juror. We see no reason to find that this
was an abuse of discretion.

In addition, it was determined at the hearing that Juror
# 7 had not voiced his concerns to any other jurors. After
the voir dire, the jury was instructed upon returning to the
courtroom that Juror # 7 had been in the courtroom for
reasons unrelated to the evidence in the case and that the
jury was not to speculate on what happened while the jury

                                16


was kept waiting. Thus, the improper communication had
been limited to Juror # 7 and the remainder of the jury was
unaffected.

Finally, we cannot resist commenting on the obvious but
unspoken incongruity we would foist on the Government
were we to allow Vega to escape conviction due to the acts
of his brother. One would think that the only party that
stood to suffer from this improper communication was the
Government because Juror # 7 might have been unwilling
to return a verdict of guilty if he feared retaliation from
Vega’s brother. The fact that the jury convicted Vega is
further evidence that Juror # 7 was not improperly
influenced by the improper communication. In this context,
and for the reasons discussed above, we believe the
Government met its burden of demonstrating that Vega
suffered no prejudice from the improper communication.
The District Court therefore did not abuse its discretion by
failing to dismiss Juror # 7.

V. Conclusion

We conclude that the District Court did not abuse its
discretion when it admitted evidence from the 1997
conspiracy. That evidence was admitted for the proper
purpose of, and was relevant to, demonstrating Vega’s
knowledge of the 1999 conspiracy and his relationship with
one of its members. Moreover, the probative value of the
evidence was not outweighed by its potential unfair
prejudicial effect, especially when the District Court took
great care to provide a lengthy limiting instruction to the
jury.

We also conclude that the District Court did not clearly
err when it admitted into evidence statements from the
spiral notebooks taken from Arocha’s apartment, and
conversations intercepted on Vega’s cellular phone, as
statements in furtherance of conspiracy under Rule
801(d)(2)(E). We cannot say that the independent evidence
in the record combined with the hearsay statements
themselves clearly failed to support the existence of both
the 1997 and 1999 conspiracies.

                                17


Finally, we conclude that the District Court did not abuse
its discretion by failing to dismiss Juror # 7 after he
expressed concerns about improper communication from a
spectator to the trial who turned out to be the defendant’s
brother. The District Court properly conducted a thorough
voir dire of the juror and determined that Vega would suffer
no prejudice from the communication because the juror
was able to proceed as an impartial witness and no other
jurors had been improperly influenced.

For these reasons, we affirm Vega’s conviction.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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