
USCA1 Opinion

	




          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                      this  point have  you reached  a decision                      regarding  the guilt or  innocence of the                      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
