                                                                         FILED
                          NOT FOR PUBLICATION                             MAR 25 2013

                                                                     MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                      No. 11-10018

             Plaintiff - Appellee,             D.C. No. 2:09-cr-00273-JAM-2

  v.
                                               MEMORANDUM *
CLEMENTE FERRIAS ARROYO,

             Defendant - Appellant.


UNITED STATES OF AMERICA,                      No. 11-10022

             Plaintiff - Appellee,             D.C. No. 2:09-cr-00273-JAM-1

  v.

JOSE ALFREDO ZEPEDA,

             Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding




        *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                           Submitted December 3, 2012 **
                             San Francisco, California

Before:        HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.

      Defendants Clemente Ferrias Arroyo and Jose Alfredo Zepeda were convicted

of various crimes stemming from their participation in a large marijuana growing

operation in rural Lassen County, California.1 They appeal, contending that the

district court investigated an accusation of jury misconduct inadequately.        We

disagree. Arroyo and Zepeda also argue that the district court’s ex parte response

denying the jury’s request for a transcript of Arroyo’s testimony was structural error

requiring automatic reversal of both convictions under United States v. Cronic, 466

U.S. 648 (1984). We agree that the court erred. The error was not structural as to

Zepeda’s conviction, and his conviction is affirmed. Because we cannot say that this

error was “harmless beyond a reasonable doubt” as to Arroyo, Chapman v. California,

386 U.S. 18, 24 (1967), we reverse his conviction and remand. We therefore need not

decide whether the error was structural as to Arroyo. Id.



          **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      1
        Defendants were convicted of: conspiracy to manufacture marijuana plants in
violation of 21 U.S.C. §§ 846 and 841(a)(1); manufacture of marijuana plants in
violation of 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).

                                          2
      We begin by addressing Arroyo’s and Zepeda’s challenge to the adequacy of

the district court’s investigation into potential juror misconduct, specifically one

juror’s alleged intimidation of other jurors.

      Near the beginning of deliberations, the jury foreperson informed the district

court that another juror was being overtly hostile to her fellow jurors. With all parties

present, the district judge informed the accused juror individually that her conduct

during deliberations intimidated other jurors. The district judge later called the entire

jury to the courtroom, and instructed them on, among other things, the importance of

civility. No juror made any further complaint, and when asked, before the judge

announced their verdict, whether any juror felt coerced into going along with the

verdict, no juror raised his or her hand. After the judge read the verdict, he offered the

parties the opportunity to have the jury polled. Both sides declined.

      Ordinarily, we review the district court’s investigation of jury misconduct for

abuse of discretion. United States v. Shryock, 342 F.3d 948, 973 (9th Cir. 2003)

(citing United States v. Beard, 161 F.3d 1190, 1194 (9th Cir. 1998)). The government

urges us to review the court’s investigation for plain error, as neither Arroyo nor

Zepeda objected to the proceedings while the district court conducted them. We need

not determine whether plain error or abuse of discretion review applies to the district




                                            3
court’s handling of the investigation, because the district court did not err under either

standard.

      Arroyo and Zepeda suggest the district judge could have better addressed the

foreperson’s complaint, but a district court conducting a hearing to investigate juror

misconduct has “discretion to determine the extent and nature of the hearing” into that

misconduct. Price v. Kramer, 200 F.3d 1237, 1254 (9th Cir. 2000) (quoting Hard v.

Burlington N. R.R., 812 F.2d 482, 485 (9th Cir. 1987)). That the district court could

have conducted its investigation differently does not mean the district court abused

its discretion, much less that it plainly erred, by resolving the complaint as it did. We

reject Arroyo’s and Zepeda’s argument that the district court’s investigation was

inadequate, and turn to the issue of the judge’s ex parte communication with the jury.

      Later in its deliberations, the jury sent a note requesting the “transcript from

Arroya [sic] testimony.” The same day, the judge responded in writing to the jury’s

request:

      As I previously instructed you, “At the end of the trial you will have to
      make your decision based on what you recall of the evidence. You will
      not have a written transcript of the trial. I urge you to pay close attention
      to the testimony as given.” Accordingly, your request for the “transcript
      from Arroyo testimony” must be denied.




                                            4
      The judge did not inform either party of the jury’s request or of his response,

and both were entered on the district court’s docket only after the verdict.2       Arroyo

and Zepeda contend that this communication with the jury was structural error

requiring automatic reversal. See Cronic, 466 U.S. at 659. We reject Zepeda’s

argument that the error was structural as to his conviction.3 See Bell v. Cone, 535 U.S.

685, 695–96 (2002). Zepeda concedes that if the error is not structural, then it was

harmless as to him.       As to Arroyo, we conclude that the court’s ex parte

communication with the jury was not “harmless beyond a reasonable doubt,”

Chapman, 386 U.S. at 22, and therefore we need not reach the question whether the

error was structural to remand his case for a new trial. See Mach v. Stewart, 137 F.3d

630, 634 (9th Cir. 1998) (declining to decide whether error was structural “because

this error requires reversal under the harmless-error standard as well . . . .”).

      We have recognized that “defendants or their attorneys have a due process right

to be present in conferences when jurors’ notes are discussed . . . .” Frantz v. Hazey,


      2
        That same afternoon, the judge received and responded to two other notes
from the jury regarding the elements of the charged crimes with the guidance of
counsel.
      3
        The error was not structural as to Zepeda. The request for Arroyo’s testimony
does not implicate the basis for Zepeda’s conviction. Thus, from Zepeda’s
perspective, the potential response to the note did not hold “significant consequences,”
Bell, 535 U.S. at 695–96, and was not a critical stage requiring automatic reversal of
Zepeda’s conviction. And, needless to say, the error was harmless as to Zepeda.

                                            5
533 F.3d 724, 743 (9th Cir. 2008) (citing United States v. Barragan-Devis, 133 F.3d

1287, 1289 (9th Cir. 1998)). By responding to the jury’s request for a transcript of

Arroyo’s testimony without first consulting Arroyo or his counsel, the district court

committed a constitutional error, which we may ordinarily disregard only if the error

is “harmless beyond a reasonable doubt.”        Chapman, 386 U.S. at 21–22; see

Barragan-Devis, 133 F.3d at 1289.

      Arroyo’s defense rested on the argument that he was coerced into participating

in the marijuana farming operation that led to his arrest. Arroyo was 63 years old at

the time of trial. He testified that two men he did not know picked him up while he

was working as a day laborer and took him to a remote site. Arroyo also testified that

the men threatened not to take him back if he refused to work, and that he believed

they might harm him. Once at the site of the garden, Arroyo testified that he did not

feel free to leave (although he was not directly threatened). While Arroyo testified

that he had been given a gun, he claimed not to know how to use it. Even if he could

have escaped under these circumstances, Arroyo also testified that he was unfamiliar

with the area where the garden was located and feared encountering animals if he tried

to leave the site, which was more than a four-hour drive away from where he had been

picked up and eleven miles from the closest town.




                                          6
      For us to find that the error in this case was harmless, it is the government’s

burden to “prove beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Chapman, 386 U.S. at 24; United States v. Frazin,

780 F.2d 1461, 1469–70 (9th Cir. 1986).          Three factors are typically cited in

evaluating “harmlessness” in the context of courts’ responses to jury notes: (1) “the

probable effect of the message actually sent”; (2) “the likelihood that the court would

have sent a different message had it consulted with appellants beforehand”; and (3)

“whether any changes in the message that appellants might have obtained would have

affected the verdict in any way.” Frazin, 780 F.2d at 1470–71. Arroyo argues that

had his counsel been present, the court may have responded differently to the jury’s

transcript request. He offers one possible result that may have followed had he been

allowed to participate in the formulation of the response: he would have argued for,

and the judge could have provided, a read-back of the testimony—something both

parties agree was within the court’s discretion. Had counsel been successful in

convincing the judge to allow for a read-back, or for distribution of a copy of the

transcript, it could have affected the jury’s verdict with respect to Arroyo because the

viability of Arroyo’s coercion defense rests almost entirely on the jury’s assessment

of the credibility of his testimony.




                                           7
      A rational jury exposed to all or part of Arroyo’s testimony could have found

that he was coerced to participate in the crimes of which he was convicted. In

requesting a copy of Arroyo’s transcript, the jury was likely engaged in weighing and

testing the viability of Arroyo’s testimony. At the end of the day, we cannot conclude

that the government has met its burden to show that the error here was harmless. See

id. at 1469–70 (quoting Chapman, 386 U.S. at 24) (holding that it is the government’s

burden to prove “beyond a reasonable doubt” that the court’s error “did not contribute

to the verdict obtained”). Accordingly, we reverse Arroyo’s conviction and remand

for proceedings consistent with this disposition. Frazin, 780 F.2d at 1469–70. We

affirm Zepeda’s conviction.

      No. 11-10018: Reversed and Remanded.

      No. 11-10022: Affirmed.




                                          8
