
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2117                                    UNITED STATES,                                      Appellee,                                          v.                                 RAFAEL GASTON-BRITO,                                Defendant - Appellant.                                 ____________________          No. 94-2118                                    UNITED STATES,                                      Appellee,                                          v.                                    DANIEL NU EZ,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                _____________________               Henry F. Furst for appellant Daniel N  ez and Richard   Ware               ______________                                ______________          Levitt for appellant Rafael Gast n-Brito, were on joint brief.          ______               Jos  A. Quiles-Espinosa, Senior Litigation Counsel, Criminal               _______________________          Division, U.S. Attorney's Office, with whom Guillermo Gil, United                                                      _____________          States Attorney, was on brief for appellee.                                 ____________________                                   August 30, 1995                                 ____________________                                         -2-                    TORRUELLA,  Chief Judge.   Daniel  N  ez  ("N  ez") and                    TORRUELLA,  Chief Judge.                                ___________          Rafael Gast n  Brito ("Brito")  appeal from  jury convictions  of          conspiracy  to  possess  cocaine with  intent  to  distribute and          possession of cocaine with intent to distribute,  in violation of          21 U.S.C.     841(a)(1) and 846.  Both Brito and N  ez claim that          the district court erred when it failed to investigate an alleged          instance of jury misconduct, and that this failure necessitates a          new trial.  For the following reasons, we reverse.                                      DISCUSSION                                      DISCUSSION                    The  focus of  this case  was  a drug-trafficking  ring          bringing cocaine from Puerto Rico to New York.  The facts came to          light  when  one  of  the  drug  couriers,  Harry  Benjam n  D az          ("D az"),  was  arrested   and  agreed  to  cooperate   with  the          government.                    D az offered  detailed testimony that, from January 19,          1993 to January 26, 1993, he participated with N  ez and Brito in          several successful and unsuccessful  efforts to transport cocaine          from Puerto Rico  to New  York.   In the course  of his  detailed          testimony, D az  testified that on  January 25, 1993,  N  ez paid          him $15,000 for successfully delivering  a load of cocaine to New          York.   During cross-examination,  counsel for  N  ez asked  D az          whether  the government had  required him  to return  the $15,000          N  ez allegedly had given him.  D az then testified that his wife          had been  forced to give the  money to unnamed persons,  and that          the  money was  therefore no  longer in  his possession  when the                                         -3-          government  asked  him   to  surrender  it.     Specifically,  he          testified:                      I was asked to [turn over the money], but                      when [the  government] asked  me my  wife                      had already told me they  had ordered her                      to  give it  to them.   Who ordered  it I                      don't  know, but they  ordered it  and if                      she did not turn it over they threaten to                      kill the little girl, but who ordered  it                      I don't know.                    Immediately following this testimony, counsel for Brito          requested permission  to  approach the  bench.   He informed  the          court that when  D az was asked to identify the person or persons          who had taken  the money from D az'  wife, Steve Riley, the  Case          Agent  sitting  at the  prosecution  table,  made  a hand  signal          pointing  to  the defense  table.1    Counsel  then moved  for  a          mistrial.   The court immediately denied the  motion.  Appellants          now  claim that the district court erred in refusing to declare a          mistrial without  first  investigating the  alleged  incident  to          determine whether it had been seen by the jurors.                    Juror   misconduct   claims   fall  under   two   broad          subheadings: juror bias and  improper juror contacts.  "Both  are          at the  core of  the Sixth  Amendment's right  to a  trial by  an          impartial  jury,   free  from   prejudicial  contact.     Private                                        ____________________          1  Counsel for Brito described the gesture to the court, stating:                      The way  I saw it  was the Agent  that is                      sitting between two  counsel -- the Agent                      Mr.  Riley -- he has his hands crossed in                      his chest,  and [when]  the question  was                      asked for the  second or third time,  the                      last time -- when I made the objection --                      he simply pointed his first finger at the                      defense table.                                         -4-          communications  with a deliberating juror create the concern that          the  juror may  reach  a  verdict on  the  basis  of the  matters          communicated, rather than  the trial evidence."  United States v.                                                           _____________          Day, 830 F.2d  1099, 1103 (10th Cir.  1987).  Thus,  although the          ___          appellants do not allege any wilful misconduct on the part of the          jurors themselves, we  analyze their claim  here under the  broad          rubric of juror misconduct because the alleged incident created a          risk that the jurors were prejudiced by facts not in evidence.                    The law on the  subject is well settled.   "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."    United States  v.  Ortiz-                                                  _____________      ______          Arrigoit a, 996 F.2d 436, 442 (1st Cir. 1993).  United  States v.          __________                                      ______________          Boylan, 898 F.2d  230, 258 (1st Cir.), cert. denied, 498 U.S. 849          ______                                 ____________          (1990);  United States  v. Anello, 765 F.2d 253, 258  (1st Cir.),                   _____________     ______          cert. denied, 474 U.S. 996 (1985); United States v. Corbin,   590          ____________                       _____________    ______          F.2d 398, 400 (1st  Cir. 1979).  The  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.  Thus, although  the trial court must "conduct a          full  investigation  to  ascertain   whether  the  alleged   jury          misconduct actually  occurred," United  States v.  Doe, 513  F.2d                                          ______________     ___          709, 711-12 (1st Cir. 1975),  it has "discretion to determine the          extent and  type of  investigation requisite to  a ruling  on the          motion [for mistrial.]"  Id. at 712.                                   __                                         -5-                    Our  previous  cases  have "abjure[d]  imposition  of a          rigid set of rules for the conduct of inquiries into the presence          or   extent   of   extrinsic  influences,   [noting]   that   the          kaleidoscopic variety of  possible problems counsels in  favor of          flexibility."  Boylan, 898 F.2d at 258.  Thus,                         ______                      [s]o long as  the district judge  erects,                      and  employs,  a suitable  framework  for                      investigating the allegation  and gauging                      its  effects, and  thereafter spells  out                      his findings with adequate specificity to                      permit  informed  appellate  review,  his                      "determination that the jury has not been                      soured deserves great respect [and] . . .                      should not be disturbed in the absence of                      a patent abuse of discretion."          Id.  (quoting  Hunnewell,  891  F.2d  at  961)  (other  citations          ___            _________          omitted).                    The  circumstances of this case invoke a more stringent          standard, however,  because the  appellants alleged  an ex  parte                                                                  _________          communication by  a  government  agent  with the  jurors.    "Any          unauthorized communication between jurors  and persons associated          with the  case is  presumptively prejudicial"  and obligates  the          court to "conduct a  sufficient inquiry to determine whether  the          communication was harmless."  United States  v. O'Brien, 972 F.2d                                        _____________     _______          12, 14 (1st  Cir. 1992).  See  also Remmer v. United  States, 347                                    _________ ______    ______________          U.S.  227,  229  (1954)  (ex  parte  communication,  contact,  or                                    _________          tampering with  a juror during  the trial about a  matter pending          before  the  jury  is presumptively  prejudicial).    Under these          circumstances, the  appellants' claim  was clearly  non-frivolous          and  obligated  the court  to  undertake an  adequate  inquiry to                                         -6-          determine  whether the  alleged  incident  occurred  and  if  so,          whether it was harmless.                    The district  court failed  in this  obligation, as  it          denied the motion  for a mistrial without any investigation.   It          neither questioned  the Case Agent  nor voir dired the  jurors to          determine whether the Case Agent had made the alleged gesture, or          if he  had, whether any of the jurors had  seen it.  Instead, the          district court summarily concluded that  even if the incident had          occurred,  no  harm  had  inured  to  the  defendants.    Such  a          conclusion, however, cannot stand unless supported by an adequate          inquiry,  for an unauthorized  communication between a  juror and          someone associated with  the case is "deemed  prejudicial" unless          it is completely  unrelated to the case or otherwise  shown to be          harmless.   O'Brien, 972 F.2d  at 14; see  also Day, 830  F.2d at                      _______                   _________ ___          1104 (10th Cir.  1987) (restroom communication between  juror and          federal agent seated  at prosecution table was merely  a "casual,          time-of-the-day greeting" and, although improper, was found to be          harmless).   Here, although the communication alleged was clearly          connected  to  the  case,  the  district  court  made  no  effort          whatsoever to see if it was in fact harmless.                    Moreover, regardless of the  presumptions employed, the          alleged  communication  clearly  posed  a  danger  of  prejudice.          Counsel  for Brito  claimed  that the  Case  Agent's gesture  had          implicated N  ez  as the  unnamed person who,  by threats  to her          daughter, forced D az'  wife to return the $15,000  D az had been          paid for his courier services.   If the gesture in fact  occurred                                         -7-          and  was  seen  by  the jurors,  they  might  impermissibly  have          included it in the calculus  of their deliberations.  Further, we          note that the gesture was allegedly made by the Case  Agent, whom          the jury might reasonably have  presumed to have access to inside          information.   Thus,  had the  alleged gesture been  observed and          understood to suggest  the defendants' complicity in  the threats          to D az'  family, the jury  might well have given  it substantial          credence.  It may well be that the gesture  was never made, or if          it was, that no  jurors saw it; but if such was  the case, it was          the district court's obligation to  develop the relevant facts on          the  record, not  merely  presume  them.   As  the Supreme  Court          explained in Smith v. Phillips,  455 U.S. 209, 212 (1982), "[d]ue                       _____    ________          process  means a  jury capable  and  willing to  decide the  case          solely on the evidence before it, and a trial judge ever watchful          to prevent prejudicial occurrences and to determine the effect of          such occurrences when they happen."  The district court's failure          to  conduct a sufficient  inquiry clearly deprived  appellants of          this  right, and  therefore requires  that  their convictions  be          vacated.2                    Reversed and remanded.                    _____________________                                        ____________________          2   Because  we  vacate  the convictions  on  the grounds  stated          herein,  we  decline   to  reach  the  other   issues  raised  by          appellants.                                         -8-
