                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-2004

USA v. Anwo
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1662




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                                                                NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 03-1662
                                      ___________


                           UNITED STATES OF AMERICA,

                                            v.

                                MOHAMMED ANWO,
                                 a/k/a Speller Traviale,

                                                       Appellant
                                      ___________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                  D.C. No. 01-cr-00379
                 District Judge: The Honorable Dickinson R. Debevoise
                                       _________


                Submitted May 7, 2004 Under Third Circuit LAR 34.1(a)

  BEFORE: SLOVITER and FUENTES, Circuit Judges, and POLLAK,* District Judge

                                  (Filed: May 13, 2004)
                                      ___________

                              OPINION OF THE COURT
                                   ____________




 *Honorable Louis H. Pollak, District Judge for the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge:

       On June 5, 2001 Mohammed Anwo was indicted for possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1) and (2). Anwo filed a pretrial

motion to suppress the firearm, alleging that it was unlawfully seized. The District Court

held a suppression hearing and subsequently denied his motion. On July 18, 2002, Anwo

was convicted by a jury on the one-count indictment. Following his trial, Anwo filed a

motion for an in camera hearing, contending that several jurors were tainted by the

outside influence of an observer at the trial. The District Court denied Anwo’s motion

after hearing argument.

       Anwo now raises two issues on appeal. First, he argues that the District Court

abused its discretion by failing to order an in camera inquiry to determine the nature of

the alleged jury taint. Second, Anwo maintains that the District Court erred in denying

his motion to suppress. For the reasons that follow, we will affirm.1

                                              I.

       We turn first to Anwo’s claim that the jury was tainted by the presence of a

courtroom observer. Anwo details the incident in his brief to this court:

       Approximately 45 minutes after the verdict, John C. Whipple, Esq., Mr.
       Anwo’s attorney, observed three (3) jurors (Jurors numbered 6, 9 and 10)
       leaving the courthouse together. They were accompanied by a woman
       approximately 60 years old, whom M r. Whipple had observed in the
       courtroom for the two (2) days of trial sitting two (2) rows behind the



       1
           We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                               2
       Government’s counsel table. She behaved as a friendly acquaintance of
       these jurors. Sherry Hutchins Henderson, Esq., A.U.S.A., had also
       observed this woman during the trial and further had observed her with one
       of the jurors in or around the courthouse. She failed to disclose that contact
       to the Court. Neither M r. Whipple nor Ms. Hutchins Henderson could
       identify the woman. Based upon the observations made of the three (3)
       woman jurors and the “outside observer”, a motion to summon the three (3)
       jurors for an in-camera inquiry was made to determine whether they were
       potentially tainted by outside influences. The Court heard argument on the
       motion and denied the application on the same date.


Appellant’s Br. at 7 (citations omitted).

       The District Court, in denying Anwo’s motion, provided the following explanation

for its decision:

                [W]e have before us the defendant’s motion to inquire of three jurors
       and perhaps of the third or fourth person as to any communication between
       the three jurors and the fourth person who was sitting in the courtroom
       during some or all of the trial. The circumstances, as outlined in defense
       attorney Mr. Whipple’s certification, are undisputed. The woman was in
       the courtroom during a significant period of the trial, and perhaps during all
       the trial, and at the conclusion of the trial when the jury was parting, she
       joined up with three of the jurors and they left together. The concern is, of
       course, that she may have been privy to matters which went on in the
       courtroom while the jury was not present which she then communicated to .
       . . her friends or current friends on the jury.
                The principal things that were discussed outside the presence of the
       jury were the charges to be given to the jury and the extent to which
       defendant, Mr. M ohammed A[n]wo’s criminal record would be admissible
       on cross-examination, should he take the witness stand.
                As far as the charges to the jury are concerned, there’s very little, if
       anything, of a nature that would be of any significance or relevance to
       jurors or persons hearing the proceedings . . . . The discussions of a prior
       criminal record which were not introduced into evidence because Mr.
       A[n]wo decided not to testify are of a different danger. If all those criminal
       events were disclosed to jurors, it might well affect their judgment as to the
       guilt or innocence of the defendant.

                                               3
               It would seem, however, that these discussions were held at a time
       when the jury was not being held outside the courtroom to await further
       proceedings for that day, but were held at the end of the day when the jury
       could have been excused, when in all likelihood the person who was in the
       courtroom as an observer had also left . . . .
               First place, it is with great reluctance that a court recalls jurors to
       testify about the verdict or what affected them and their decision. And it
       would only be done if there was some significant information or reason to
       believe that improper communication had been made to the juror. Here,
       there–while one can speculate there really is nothing to suggest that any
       improper information was conveyed to any of the jurors in this case, partly
       because it’s unlikely that the person who was listening to the proceedings in
       open court would have communicated them to the jurors.
               Secondly, jurors were warned, really repeatedly, not to discuss the
       case, even among themselves, and certainly not with friends, relatives and
       others outside the jury room, and not even in the jury room until the time
       came for them to deliver a verdict. Thus, there is a presumption that they
       follow these instructions, and I think the very likelihood is that they did.
               So, consequently, I will deny the motion on the grounds that an
       inadequate showing or reason for believing that improper communication
       had been made was shown.


App. at 42-44.

       This court reviews a district court’s investigation of extraneous information

received by a jury for abuse of discretion. United States v. Lloyd, 269 F.3d 228, 237 (3d

Cir. 2001). In Lloyd this court spoke to several fundamental principles regarding the

sanctity of the jury, stating that

       as this court recently discussed in Wilson, we do not permit jurors to
       impeach their own verdicts. See [Wilson v. Vermont Castings, Inc.,], 170
       F.3d [391], 394 [(3d Cir. 1999)]. “The purpose of this rule is to promote
       finality of verdicts, encourage free deliberations among jurors, and maintain
       the integrity of the jury as a judicial decision-making body.” Id. As an
       opinion from the Sixth Circuit recently stated, “if . . . courts were to permit
       a lone juror to attack a verdict through an open-ended narrative concerning

                                              4
       the thoughts, views, statements, feelings, and biases of herself and all other
       jurors sharing in that verdict, the integrity of the American jury system
       would suffer irreparably.” United States v. Gonzales, 227 F.3d 520, 527
       (6th Cir. 2000). Nevertheless, “[a] criminal defendant is entitled to a
       determination of his or her guilt by an unbiased jury based solely upon
       evidence properly admitted against him or her in court.” Virgin Islands v.
       Dowling, 814 F.2d 134, 138 (3d Cir. 1987). . . .

       Thus, a court may inquire into the verdict if “‘extraneous prejudicial
       information was improperly brought to the jury's attention or [if] any
       outside influence was improperly brought to bear upon any juror.’” Wilson,
       170 F.3d at 394 (quoting Fed. R. Evid. 606(b)). However, “the court may
       only inquire into the existence of extraneous information,” and not “into the
       subjective effect of such information on the particular jurors.” Id.

Lloyd, 269 F.3d at 237. The court applies a presumption of prejudice “when the

extraneous information is of a considerably serious nature.” Id. at 238.

       In United States v. Gilsenan, 949 F.2d 90 (3d Cir. 1991), this court concluded that

the district court acted within its discretion by not holding a hearing to determine the

extent of extra-record information received by a jury. In reaching this result, we

       recognize[d] that sometimes judges are tempted to order hearings to put
       matters to rest even if not strictly required. After all, a call for a hearing has
       an inherently reasonable ring to it. But this is not one of those
       circumstances for there are compelling reasons not to hold a hearing
       involving the recalling of discharged jurors. As the Court of Appeals for the
       Second Circuit recently said [in United States v. Ianniello, 866 F.2d 540,
       543 (2d Cir. 1989) (omitting citations)]:
              We are always reluctant to ‘haul jurors in after they have
              reached a verdict in order to probe for potential instances of
              bias, misconduct or extraneous influences.’ As we have said
              before, post-verdict inquiries may lead to evil consequences:
              subjecting juries to harassment, inhibiting juryroom
              deliberation, burdening courts with meritless applications,
              increasing temptation for jury tampering and creating
              uncertainty in jury verdicts.

                                               5
Gilsenan, 949 F.2d at 97. Ianniello provides a district court with significant guidance on

the showing required to conduct the type of investigation Anwo requested: “[t]he duty to

investigate arises only when the party alleging misconduct makes an adequate showing of

extrinsic influence to overcome the presumption of jury impartiality.” Ianniello, 866 F.2d

at 543 (citations omitted). Specifically, “a post-trial jury hearing must be held when a

party comes forward with ‘clear, strong, substantial and incontrovertible evidence . . . that

a specific, non-speculative impropriety has occurred[.]’” Id. (citations omitted).

       Though Anwo recognizes the principles enunciated by Wilson and Lloyd, he is

unable to meet the evidentiary burden imposed by Ianniello and Gilsenan. As the

government points out, Anwo only has speculation to offer with respect to the identity of

the courtroom observer, the periods of time she was in the courtroom, and the nature of

her relationship and conversations with certain members of the jury. Anwo’s difficulty is

compounded by the fact that the District Court admonished the jury more than once to

refrain from discussing the case amongst themselves or with others prior to deliberation.

While a hearing may have alleviated some of Anwo’s speculative concerns, because he

has not and cannot present “clear, strong, substantial and incontrovertible evidence”

regarding those concerns, we cannot say the District Court abused its discretion by

declining to conduct a post-verdict voir dire of the jurors in this case.




                                               6
                                             II.

       Anwo also challenges the District Court’s denial of his motion to suppress. In

particular he argues that the court committed clear error in its factual findings. At the

suppression hearing conducted by the District Court, Anwo and the government presented

different versions of the events which led to the seizure of the firearm. Both agree that on

the night of March 13, 2000, Anwo dropped a friend off in East Orange, New Jersey

following a night out at a club in Newark. After dropping his friend off, Anwo headed

back to his own home in East Orange. According to his testimony at the suppression

hearing, Anwo was stopped at a traffic light in the right-hand lane of a two-lane street

when a police car pulled up behind him with its siren on and lights flashing. Another

police car pulled in front of him, effectively preventing him from leaving. Anwo testified

that three officers pulled him out of his car, handcuffed him and placed him face down on

the ground. According to Anwo, after searching him, they placed him in a police

officer’s car and searched his car. Anwo testified that he was then taken to the East

Orange Police Department headquarters at which point “[t]hey brought the gun in, and

they said it was mine[ ]. We debated for a minute, they read me my rights, charged me,

and put me in the holding cell.” App. at 130.

       According to the government’s recital, Detective Joseph Procuri, a member of the

East Orange Police Department Records Information Bureau, left the East Orange

police station at approximately 3:00 a.m. to get coffee from a diner for his coworkers. On



                                              7
his way to the diner, he stopped at a red light behind Anwo’s car. When the light turned

green and Anwo did not move, Detective Procuri honked his horn, turned on his siren and

then got out of his car to investigate Anwo’s behavior. As he approached the car, he saw

Anwo slumped over the steering wheel and radioed for backup, thinking that Anwo may

need some assistance. Two patrol cars arrived at the scene, one driven by Detective

Albert Alston and his partner Officer Matthew Goritski and the other driven by a Sergeant

McCuster. They discussed the situation with Detective Procuri. Detectives Procuri,

Alston and Sergeant McCuster approached the driver’s side of the car, while Officer

Goritski approached the passenger side. While Detectives Alston and Procuri tried to

shake Anwo awake, Officer Goritski reached in the passenger window, put the car in park

and pulled the keys from the ignition. While doing so, Officer Goritski noticed a gun in

Anwo’s lap and shouted “gun.” Detective Alston grabbed the gun from Anwo’s lap, and

Detective Procuri and Sergeant McCuster grabbed him from the car and put him in

handcuffs.

      At the station, Anwo was advised of his Miranda rights and, in response to a

question from Detective Alston, stated that he had been asleep at the wheel, was heading

home from a club and had the gun for protection.2

      The District Court, in denying Anwo’s suppression motion, recognized




      2
       The District Court also denied Anwo’s motion to suppress this statement, a ruling
which he does not challenge in this appeal.

                                            8
inconsistencies in the officers’ testimony,3 but stated that “I don’t think these detract from

the basic account of what took place, and there are inaccurate police reports, two of them.

Neither detract measurably from the testimony of the officers.” App. at 157. The Court

ruled that

       the statement[s] of the officers are accurate and correctly outline the course
       of events that were established. There is no basis to suppress the weapon.
       It was found in plain view during the course of a perfectly legitimate
       operation by the police officers, who at the outset thought they were
       assisting a passenger in distress or a driver in distress, and during the course
       of which they came upon the weapon.

Id. at 158.           On appeal, “the court reviews the district court's denial of the motion

to suppress for ‘clear error as to the underlying facts, but exercises plenary review as to its

legality in light of the court's properly found facts.’” United States v. Riddick, 156 F.3d

505, 509 (3d Cir. 1998) (quoting United States v. Inigo, 925 F.2d 641, 656 (3d Cir.

1991)). Furthermore, in reviewing the district court’s decision to deny a motion to

suppress, “this court may look at the entire record; it is not restricted to the evidence



       3
         Though Detective Procuri testified to first hearing Detective Alston yell
“gun”when they approached Anwo’s car, Detective Alston testified that Officer Goritski
was the first to alert the officers to the presence of a weapon. Officer Goritski’s warning
was apparently followed by Detective Alston’s warning See App. at 70, 102. Detectives
Procuri and Alston also provided inconsistent testimony about the particular lane where
Anwo’s car was stopped. Id. at 80, 111. Finally, in his police report, Detective Procuri
stated that he saw a handgun between Anwo’s legs as he approached Anwo’s car. Id. at
88. Detective Procuri admitted that contrary to the description in his report, until
Detective Alston issued his warning to the other officers, Detective Procuri only saw a
steel object rather than a gun. Id. at 88-91. Detective Procuri also admitted that his report
of the gun’s location was based on an assumption he made rather than any direct
observation. Id. at 94-95.

                                               9
presented at the suppression hearing where the motion was denied.” Gov’t of Virgin

Islands v. Williams, 739 F.2d 936, 939 (3d Cir. 1984).

       Anwo targets the discrepancies between Detective Procuri’s suppression hearing

testimony and his police report and minor inconsistencies between Detective Alston and

Detective Procuri’s suppression hearing testimony to bolster his argument that the District

Court’s factual findings on the motion to suppress were clearly erroneous. In particular,

he highlights Detective Procuri’s difficulty in recalling the location of the gun before it

was seized from Anwo, a conflict in the suppression hearing testimony identifying the

officer who first alerted the other officers of the gun in Anwo’s lap and inconsistent

recollections about the location of Anwo’s car.

       Anwo’s contentions are without merit. Despite the alleged inconsistencies Anwo

points to, we are fully satisfied that the District Court was correct in “conclud[ing] that

the statement[s] of the officers are accurate and correctly outline the course of events that

were established.” App. at 158. Detective Procuri’s description of the events leading up

to Anwo’s arrest were largely corroborated by Detective Alston’s testimony at the

suppression hearing and Officer Goritski’s testimony at trial. Supp. App. at 102-05.

Moreover, the testimony adduced both at the suppression hearing and at trial from the

police officers was, on the whole, consistent with Anwo’s statement at the police station

indicating that he fell asleep at the wheel following an evening at a club and was carrying

the gun for protection. There is no basis to assign clear error to the district court’s factual



                                              10
findings.

                                           III.

       For the foregoing reasons, the judgment of the District Court will be affirmed.




                                            11
