20 F.3d 1387 (6th Cir. 1994), 92-2412, United States v. Rugiero

Docket Nº:Patrick RUGIERO (92-2412); Ara Basmajian (92-2414),
Citation:20 F.3d 1387
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:March 22, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1387

20 F.3d 1387 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Patrick RUGIERO (92-2412); Ara Basmajian (92-2414),

Defendants-Appellants.

Nos. 92-2412, 92-2414.

United States Court of Appeals, Sixth Circuit

March 22, 1994

Argued Dec. 9, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied May 5, 1994

in No. 92-2412.[*]

Rehearing and Suggestion for Rehearing En Banc Denied June 8, 1994

in No. 92-2414. *

Page 1388

[Copyrighted Material Omitted]

Page 1389

Richard Delonis, Kathleen Moro Nesi (argued and briefed), Asst. U.S. Attys., Detroit, MI, for plaintiff-appellee.

Domnick J. Sorise, Clinton Township, MI, N.C. Deday LaRene (argued and briefed), Detroit, MI, for defendant-appellant.

Before: MERRITT, Chief Judge; SUHRHEINRICH, Circuit Judge; and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge, delivered the opinion of the court, in which SUHRHEINRICH, Circuit Judge, joined. MERRITT, Chief Judge (p. 1395), delivered a separate dissenting opinion.

WELLFORD, Senior Circuit Judge.

Two of a number of defendants charged in an indictment for conspiracy to possess and distribute cocaine and heroin (or other specific substantive dealing in these drugs), using and carrying a weapon in relation to their drug dealing and a crime of violence, and also for threatening a witness, now appeal their convictions. After an extended trial, Patrick Rugiero ("Rugiero") and Ara Basmajian ("Basmajian") 1 raise a number of issues. The district court denied motions for a new trial and then assessed substantial sentences against these two defendants, 804 F.Supp. 925. 2

The government charged that beginning in 1985, in southeast Michigan, Rugiero was the leader of an armed drug distribution ring, and that Basmajian was one of the participants in the illegal group. Basmajian and his family owned and operated a party store in Dearborn Heights, allegedly used as a site to store and distribute drugs. Rugiero and his brother, Anthony, allegedly employed violent means, including threatened firearm use, to collect drug debts.

There was evidence of undercover drug contacts with defendants over a period of time, principally involving substantial quantities of cocaine. Others involved in drug transactions testified as to participation of defendants in distribution of both cocaine and heroin.

I. ARA (ART) BASMAJIAN

Basmajian was charged with and convicted on two of the eight counts of the indictment, conspiracy to distribute drugs, and aiding and abetting one substantive heroin offense.

A. JURY MISCONDUCT

Basmajian (and Rugiero) assert that a television report tying Rugiero's trial counsel to "organized crime" figures came to the attention of the jury during its deliberations prejudicing both defendants and necessitating a mistrial. The defendants brought their concerns promptly to the district court. The controversy centers, in part, around a note from the jury about the time it initially indicated a verdict had been reached. 3 The defendants requested an inquiry of the person who wrote the note. Very soon after sending the first note, the jury returned its verdict together with another note to this effect: "Disregard note. A unanimous decision has

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been reached." The district judge declined the request to make a juror inquiry at that time and accepted the guilty verdicts, now the subject of appeal, over the defendants' objections.

Despite his earlier indication, the trial judge then made separate individual inquiries of each juror about the television report regarding Rugiero's attorney. Most of the jurors indicated that they had seen or heard about the television report or reports. Some jurors indicated that the jury foreman, Mayhew, had discussed the television information about Rugiero's attorney with other jurors. Mayhew herself, however, denied knowledge of the television report or discussing this matter with other jurors. Each juror denied any adverse influence on their verdict, and the district court denied the motion for a mistrial.

The standard to be applied in assessing the district court's actions in a case of alleged juror misconduct is whether the actions (or inactions) constituted an abuse of discretion under all the circumstances. United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1981, 90 L.Ed.2d 663 (1986). This court has articulated four points to consider in cases of possible improper juror contact:

Four points emerge from our decision in Pennell: 4 (1) when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held; (2) no presumption of prejudice arises from such a contact; (3) the defendant bears the burden of proving actual juror bias; and (4) juror testimony at the "Remmer 5 hearing" is not inherently suspect.

United States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir.1988).

The district court in this case did conduct a hearing on the defendants' claims of jury taint. The district court properly made no "presumption of prejudice" from juror exposure to the television news relating to Rugiero's attorney and required the defendants to prove "actual juror bias." The district court noted that it and the parties, through their counsel, "agreed that the appropriate course of action [after the television broadcast at issue] would be to defer any inquiry of the jurors" until conclusion of jury deliberations and a verdict. This agreed course of action was followed. The trial judge declined to inquire in great detail of the juror who wrote the notes "since the notes gave no indication either that any extraneous prejudicial information had been improperly brought to the jury's attention or that outside influence had been improperly brought to bear on any juror," citing Fed.R.Evid. 606(b). 6 See also Shackelford, supra. The district court heard "individual juror's testimony and viewed their assurances of continued impartiality to be credible," as it was entitled to do under Pennell and Zelinka. See also United States v. Sturman, 951 F.2d 1466, 1477-78 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2964, 119 L.Ed.2d 586 (1992). 7

Even if we assume that the jury foreman was exposed to the television broadcast and mentioned it or its content to other jurors, we find no abuse of discretion on the part of the district court here. We do not presume prejudice has occurred by reason of extraneous contact with a juror or jurors. Neither Basmajian nor his counsel were the subjects of any adverse information. Basmajian concedes in his brief that "juror testimony concerning the effect of the outside communication on the minds of the jurors is inadmissible," Stockton v. Commonwealth of Virginia, 852 F.2d 740, 744 (4th Cir.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), but argues that the district court should not have relied upon

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"unsworn and unreliable denials of influence."

As to the defendant Basmajian, we are satisfied that there was no abuse of discretion nor error committed by the district court with respect to the alleged jury misconduct issue. We also conclude that Basmajian proved no actual bias against him on the...

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