                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                    PUBLISH
                                                                          NOV 28 1997
                   UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                                Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
 v.                                                      No. 96-1370

 MARTIN IRIBE-PEREZ,

       Defendant - Appellant.


                 Appeal from the United States District Court
                         for the District of Colorado
                         (D.C. No. 92-CR-113-7 CB)


Richard N. Stuckey, Denver, Colorado, for the Defendant - Appellant.

John M. Hutchins, Assistant U.S. Attorney (Henry L. Solano, U.S. Attorney, and
Wayne Campbell, Assistant U.S. Attorney, with him on the brief), Denver,
Colorado, for the Plaintiff - Appellee.


Before EBEL, KELLY and LUCERO, Circuit Judges.


LUCERO, Circuit Judge.



      Defendant, Martin Iribe-Perez, argues that the district court erred in

allowing a jury to try him for certain drug offenses after that jury had been

erroneously informed by the court that Mr. Iribe-Perez would be pleading guilty
to the crimes charged. We agree. After a trial judge has informed a panel of

prospective jurors in a criminal case that a defendant is going to plead guilty, if

the defendant decides not to do so, it is improper to constitute a jury from that

same panel to try the defendant. Moreover, selection of jurors from that same

panel implicates constitutional rights of such magnitude that the error is not

susceptible to harmless error review. We therefore reverse appellant’s conviction

and remand for a new trial. We also find that, contrary to defendant’s arguments,

the district court did not err in refusing to dismiss his indictment after the

government facilitated the departure of a potential defense witness from the

United States. 1

                                            I

      In March 1992, the government obtained an indictment against the

defendant on one count of conspiring to distribute five or more kilograms of

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii)(II), and 846. On

the morning of trial, jury selection was delayed by last minute plea negotiations.

The negotiations were a continuation of earlier efforts that had been ongoing



      1
         In reversing appellant’s conviction and remanding for a new trial, we would not
ordinarily reach further grounds for appeal. Here, however, we must do so. If appellant’s
arguments as to the voluntary departure of the potential witness were correct, we would
not remand but would dismiss the indictment against him altogether. See United States v.
Valenzuela-Bernal, 458 U.S. 858 (1982); United States v. Morales-Quinones, 812 F.2d
604 (10th Cir. 1987).

                                          -2-
through the eve of trial. As a result of a miscommunication between the

courtroom deputy and trial counsel, the trial judge believed the negotiations had

failed, assumed the bench, and called the defendant’s case for trial.

      Defense counsel then informed the court that the parties had arranged an

“alternative disposition,” explaining on further inquiry from the court, “We have

worked out a plea bargain.” 3 Appellant’s App. at 37. The court then told the

venire pool:

             Very well. Ladies and gentlemen of the jury, this sometimes
      happens. I know that you begin to feel kind of like yo-yos from the
      jury room up to the Court and then back to the jury room and
      whatnot. But every now and then this will happen, and it is the right
      of the defendant in a criminal case such as this to enter a plea of
      guilty to the charge which is contained in the indictment of the grand
      jury.

                                        ***

             Now I am sure that Mr. Stuckey tried to work this out last
      Friday, and he tells me in chambers that he was unable to, and that as
      of last Friday we were going to go to trial, but here this morning the
      defendant has decided that he does not wish to go to trial, and he
      wishes to enter a plea of guilty to the charge contained in the
      indictment. This he has a right to do, and we certainly won’t stop
      him from doing so.

             Now I am going to suggest to the jury that it would be best that
      you not be -- I hate to use the word -- the word is contaminated. It’s
      possible that you could be prejudiced in some way if you were to sit
      here as citizens and hear these proceedings, and then if in the course
      of these proceedings something happened that it broke down, it’s
      possible that your neutrality might be compromised, so I am going to
      suggest to you, ladies and gentlemen, that you go back to the jury
      room, and we will hear the defendant now on these proceedings, and

                                         -3-
      if in the course of these proceedings he doesn’t wish to plead guilty,
      why then we will call you back.

Id. at 38-39.

      After efforts to enter a guilty plea failed, the court intervened and ordered

the start of trial. Over defense objection, the same jury panel was recalled and

jury selection began. The court did instruct prospective jurors of their obligation

to presume the innocence of the defendant, and noted that the earlier change of

plea hearing could not affect that presumption in any way. Furthermore, the

district court was careful to inquire of various potential jurors whether any of

them thought the defendant “must be guilty” because of his apparent decision to

change his plea. Id. at 91, 109. Following selection of the jury, the court denied

defendant’s motion for a mistrial, explaining that the panel used was the only

panel available, that the court had made every effort to remove any taint, and that,

under the circumstances, they would “just have to proceed.” Id. at 122. 2




      2
         We are sympathetic to the difficulties facing the visiting judge in this case. He
was assisting a busy court with a congested docket; he was supplied with only one panel
of potential jurors; and he tried to accommodate the defendant by giving him the
opportunity to enter a plea of guilty after the cut-off date established in the scheduling
order. When the guilty plea failed to materialize, the trial judge was only trying to
salvage the trial out of concern for potential problems under the Speedy Trial Act, 18
U.S.C. §§ 3161-3174. Nevertheless, we conclude that the failure to provide the defendant
with an impartial adjudicator necessitates that we reverse his conviction.

                                           -4-
                                         A

      Although the record reflects that the district court went to great lengths to

eliminate any potential prejudice, the precedents before us do not permit jury

selection under these circumstances. A criminal defendant is entitled to be tried

by an impartial jury. U.S. Const. amend. VI. In Leonard v. United States, the

Supreme Court held that it was plain error to select a jury from a panel of

prospective jurors who, prior to their selection, had witnessed a guilty verdict

returned in a separate case against the same defendant. 378 U.S. 544, 544 (1964)

(per curiam); see also Oliver v. United States, 202 F.2d 521, 523 (6th Cir. 1953)

(“Neither the immediate admonition of the District Judge to the jury to disregard

the prosecuting attorney’s question [regarding the defendant’s prior guilty plea]

nor the subsequent charge could, in our judgment, remove the indelibly impressed

fact from the minds of the jurors that the defendant had, upon a previous

occasion, pleaded guilty to the charge upon which he was being tried.”); Miracle

v. Commonwealth, 646 S.W.2d 720, 721 (Ky. 1983) (holding that “it is error to

bring to the jury’s attention that defendant’s guilty plea was previously entered

and withdrawn”) (citing Oliver, 202 F.2d at 523).

      This court recognizes that a high risk of bias exists when potential jurors

are present at two separate voir dire examinations that occur proximate in time to

one another, both of which involve separate charges against the same defendant.


                                        -5-
See United States v. Gillis, 942 F.2d 707, 710 (10th Cir. 1991) (reversing

defendant’s conviction because the district court failed to inquire specifically

whether the potential prejudice from sitting through the previous voir dire

examination would bias the jurors). In addition, jurors who serve on an interim

jury between voir dire and trial and have been exposed to similar legal or factual

issues or the same government witnesses may be dismissed for cause because of

the high risk of bias. See United States v. Franklin, 700 F.2d 1241, 1242 (10th

Cir. 1983).

      In the light of this case law, the district court erred in selecting the jury

from a panel comprised of individuals who were informed by the trial judge

immediately prior to voir dire that the defendant was going to plead guilty to the

very crime of which they ultimately convicted him. The same principles of justice

that led the Solicitor General to concede—with the ready endorsement of the

Supreme Court—that selection of a jury under the circumstances in Leonard was

plainly erroneous apply with greater force here. In Leonard, the prospective jury

heard a different jury pronounce the defendant guilty of a different crime. See

378 U.S. at 544. Here, the members of the actual jury were told by the presiding

judge that the defendant was pleading guilty to the very crime that they were

impanelled to decide. In essence, the jury had been told that the defendant was

going to admit all the material facts alleged in the indictment. See United States


                                          -6-
v. Kelsey, 15 F.3d 152, 153 (10th Cir. 1994) (holding that plea of guilty is

equivalent to admitting all material facts contained in the indictment).

      Our analysis is unaffected by the trial judge’s attempts to cure the defect

during voir dire examination. Although we generally presume that curative

instructions are followed, see United States v. Cardall, 885 F.2d 656, 668 (10th

Cir. 1989), we are not convinced that it was possible to eliminate the “taint” on

this jury. See Oliver, 202 F.2d at 523; cf. Donovan v. Davis, 558 F.2d 201, 203

(4th Cir. 1977) (holding that district court’s attempt to remove prejudice through

limiting instructions was inadequate when seven jurors had served in a prior

criminal trial involving same defendant). As an example, after one venireman

expressed doubt about whether he could act neutrally, stating that he couldn’t

“help but think about the plea bargain,” 3 Appellant’s App. at 111, the following

colloquy ensued:

      The Court: The one thing you can’t do is get in the jury
                 room if this was to happen and balancing
                 the evidence saying well, sounds like he
                 was not guilty but, on the other hand, he
                 wouldn’t have offered to plea if he wasn’t -
                 - if there wasn’t some guilt. You can’t
                 consider that. Do you think you could put
                 that away and consider only the evidence
                 that you hear from that witness stand? Can
                 you do that?

      The Juror:   Well, I would like to think I could, but it’s still
                   going to be in my mind, to be honest with you.


                                         -7-
        The Court: Yeah, but we are all big people. We can put
                   things away from our mind, can’t we? You can
                   too. Can you do that?

        The Juror:   I will try.

        The Court: All right. Fine. I can’t ask more than that.

Id. 3

        In the light of this type of exchange, it is simply insufficient that each of

the jurors selected stated that he or she would decide the case solely on the

evidence presented. See Willie v. Maggio, 737 F.2d 1372, 1379 (5th Cir. 1984)

(“A juror is presumed to be biased when he or she is apprised of such inherently

prejudicial facts about the defendant that the court deems it highly unlikely that

the juror can exercise independent judgment, even if the juror declares to the

court that he or she will decide the case solely on the evidence presented.”). 4



        3
         The defendant used one of his peremptory challenges to excuse this prospective
juror from the panel.
        4
           Our decision has no impact on the jurisprudence of pre-trial publicity. It is not
necessary that jurors be completely ignorant of the facts and issues of the case before
them. See Irvin v. Dowd, 366 U.S. 717, 722 (1961). Noteworthy trials will often pique
the interest of the public and many potential jurors may have formed initial impressions
about the case. See id. But that is not enough to disqualify a juror so long as that juror
agrees to set aside any initial impressions. See id. at 723; United States v. Lamb, 575
F.2d 1310, 1315 (10th Cir. 1978). Here, however, prospective jurors were informed by
the trial judge presiding over the trial that the defendant was going to plead guilty. The
effect of this information is far more troublesome than mere publicity. The prospective
jurors were essentially informed immediately before voir dire by their sole source of legal
authority that the defendant was going to admit all the material facts underlying the
charges against him.

                                            -8-
                                         B

      The Supreme Court recognizes that a defendant in a criminal trial has

certain fundamental rights, the deprivation of which mandates reversal even

absent a showing of prejudice. See Arizona v. Fulminante, 499 U.S. 279, 309

(1991). Examples of such rights are the right to counsel, see Gideon v.

Wainwright, 372 U.S. 335, 345 (1963); the right to be tried before an impartial

judge, see Tumey v. Ohio, 273 U.S. 510 (1927); the right to a public trial, see

Waller v. Georgia, 467 U.S. 39, 49 & n.9 (1984); the right to self-representation,

see McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); and the right to have an

indictment based on the judgment of a properly selected grand jury, see Vasquez

v. Hillery, 474 U.S. 254, 263 (1986). In each of these cases, the Supreme Court

was unable to determine whether the error was harmless because a review of the

record could not reveal the impact of the defect.

      The same obstacle to review is present in this case. The impact of the

constitutional defect before us, namely the violation of the defendant’s Sixth

Amendment right to an impartial jury, cannot be determined from a review of the

record. See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (holding that the

right to trial by jury is a “basic protection whose precise effects are unmeasurable,

but without which a criminal trial cannot reliably serve its function”) (internal

quotations omitted); Rose v. Clark, 478 U.S. 570, 578 (1986) (recognizing that


                                        -9-
harmless error analysis presupposes a trial before an impartial jury); see also

Waller, 467 U.S. at 49 n.9 (noting that it would be impossible to demonstrate the

prejudicial effect of the violation of a criminal defendant’s right to a public trial).

It is not the function of this court to predict whether a properly constituted jury

would have convicted the defendant. Cf. Sullivan, 508 U.S. at 280 (holding that

it is not the role of an appellate court to determine whether a jury could have

found the defendant guilty beyond a reasonable doubt but, rather, whether a jury’s

actual finding of guilt beyond a reasonable doubt “would surely not have been

different absent the constitutional error”).

      The Supreme Court has long recognized that “there are some constitutional

rights so basic to a fair trial that their infraction can never be treated as harmless

error.” Chapman v. California, 386 U.S. 18, 23 (1967). The constitutional right

to an impartial jury is basic and fundamental to the conduct of a fair trial. See

Irvin v. Dowd, 366 U.S. 717, 722 (1961). Thus, regardless of whether we label

the error in this case as “structural” or “trial,” see Fulminante, 499 U.S. at 309-10

(suggesting a dichotomy between “trial errors,” which may be reviewed under

harmless error standards, and “structural errors,” which defy harmless error

review), we are satisfied that the violation of the defendant’s right in this case

was of such constitutional magnitude that it cannot be subjected to harmless error




                                          - 10 -
review. See Chapman, 386 U.S. at 23. Accordingly, the judgment of conviction

is reversed and we remand for a new trial.

                                         II

      Appellant further contends that his indictment should be dismissed because

the government deprived him of material exculpatory evidence when his brother,

Rafael Iribe-Perez, was permitted to voluntarily depart from the United States.

We are obliged to address this issue because if we find that the appellant’s second

ground of appeal has merit, we must dismiss the indictment against him rather

than remand for a second trial.

                                         A

      Martin Iribe-Perez was arrested for his alleged involvement in a drug

distribution organization run by Genaro Almeida. During the course of its

investigation into the Almeida organization, the Federal Bureau of Investigations

(the “FBI”) learned that cocaine was being transported into Denver by means of a

1985 Ford Thunderbird. At the request of the FBI, the car was stopped by local

police. Its driver was Rafael Iribe-Perez. The only other occupant of the

Thunderbird was Raul Castellon, who was later charged in the same indictment as

the appellant.

      To prevent the participants in the Almeida organization from discovering

the existence of its ongoing investigation, the FBI orchestrated the stop of the


                                        - 11 -
Thunderbird to make it look like an immigration check. Agents from the

Immigration and Naturalization Service (the “INS”) were thus dispatched to

question the occupants. Upon questioning, Rafael Iribe-Perez admitted to the INS

agents that he was in the country illegally. Raul Castellon produced a resident

alien identification card. The INS agents then transported both Castellon and

Rafael Iribe-Perez to an INS detention facility. Rafael Iribe-Perez was taken into

custody as an illegal alien. Raul Castellon was detained for approximately one

and a half hours while his resident alien identification card was verified.

       In order to maintain the illusion that the Thunderbird had been stopped at

the direction of the INS, the agents informed Rafael Iribe-Perez and Castellon

that the INS was going to seize the Thunderbird pursuant to regulations governing

the seizure of items used to transport illegal aliens. In fact, the Thunderbird was

transported to a garage used by the Denver division of the FBI. A search of the

Thunderbird yielded eight kilograms of cocaine.

       While in detention, Rafael Iribe-Perez requested that the INS allow him to

voluntarily depart from the United States. 5 The INS granted his request and

Rafael left the country. The defendant was arrested about a week later on



       5
           The benefit of being permitted to voluntarily depart as opposed to being deported
is that a formally deported illegal alien faces criminal penalties for merely returning to the
United States. See, e.g., 8 U.S.C. § 1326 (providing criminal penalties for deported aliens
who enter or attempt to enter the United States subsequent to their deportation).

                                            - 12 -
February 27, 1992. He claims that the indictment against him should be

dismissed because the government facilitated the departure of Rafael Iribe-Perez,

the only person who, he contends, could “totally exculpate” him. Appellant’s Br.

at 18.

                                            B

         To obtain an order dismissing his indictment, the burden is on the appellant

to show that: (1) the government acted in bad faith by allowing a witness with

potentially exculpatory information to depart; and (2) the voluntary departure of

the absent witness prejudiced him by eliminating testimonial evidence that “would

be both material and favorable to the defense.” United States v. Valenzuela-

Bernal, 458 U.S. 858, 873 (1982); Arizona v. Youngblood, 488 U.S. 51, 58 (1988)

(establishing that “failure to preserve potentially useful evidence does not

constitute a denial of due process of law” unless defendant can show government

acted in bad faith).

         Appellant fails to establish that the voluntary departure of Rafael Iribe-

Perez deprived him of evidence “both material and favorable to the defense.” See

Valenzuela-Bernal, 458 U.S. at 873. 6 We do not require the defendant to provide




        Although Valenzuela-Bernal addresses the loss of a witness due to deportation,
         6

we recognize that the same standard applies when the government facilitates a voluntary
departure. See United States v. Morales-Quinones, 812 F.2d 604, 608-09 (10th Cir.
1987).

                                          - 13 -
a “detailed description” of the disputed testimony. Rather, he need only make a

“plausible showing that the testimony of the deported witness[] would have been

material and favorable to his defense, in ways not merely cumulative to the

testimony of available witnesses.” Id.

      In this case, the appellant argues that “only [his] brother could explain” the

nature and extent of the appellant’s knowledge of cocaine in the seized

Thunderbird. Appellant’s Br. at 18 (emphasis added). Appellant argues that

Rafael “might have testified that his brother . . . did not know” about the

existence of cocaine in the seized Thunderbird. Id. at 19 (emphasis added).

Appellant further argues that Rafael “might have shed light on . . . Castellon’s

role,” particularly whether it was Castellon who was directing the cocaine

distribution. Id. (emphasis added).

      Valenzuela-Bernal, however, requires more than the mere potential for

favorable testimony, see 458 U.S. at 873, and the appellant has not offered any

credible reason to believe that Rafael would in fact provide exculpatory

testimony. Moreover, because Rafael was charged in the same indictment as the

appellant for his alleged involvement in the Almeida drug distribution scheme, it

is likely that Rafael would have invoked his Fifth Amendment privilege to remain

silent had he been present as a witness for the defendant’s trial. See United




                                         - 14 -
States v. Stassi, 544 F.2d 579, 582 (2d Cir. 1976). We therefore hold that the

district court correctly denied the appellant’s motion to dismiss his indictment. 7

                                            III

       The appellant argues that a chemist’s report introduced by the government

was inadmissible hearsay. Because the case is remanded for a new trial, and

because we cannot predict that the evidence regarding the chemical report will be

presented in the same manner, we decline to address this issue.

       REVERSED AND REMANDED.




       7
         The trial court appropriately recognized that Rafael Iribe-Perez would be a
proper witness. Our holding that the defendant is not entitled to have the indictment
against him dismissed does not affect the propriety of calling Rafael as a witness.
Because we remand for a new trial, the appellant is afforded the potential of calling his
brother in support of his defense.

                                           - 15 -
