3 F.3d 684 (3rd Cir. 1993), 92-3405, United States v. Resko

Docket Nº:Luis Faustino Hidalgo, Appellant No. 92-3405,
Citation:3 F.3d 684
Party Name:UNITED STATES of America, Appellee, v. Joseph John RESKO, Juan Hernandez, Luis Faustino Hidalgo, Jesus Cepeda, Jr.,
Case Date:August 24, 1993
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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3 F.3d 684 (3rd Cir. 1993)

UNITED STATES of America, Appellee,


Joseph John RESKO, Juan Hernandez, Luis Faustino Hidalgo,

Jesus Cepeda, Jr.,

Luis Faustino Hidalgo, Appellant No. 92-3405,

Jesus Cepeda, Jr., Appellant No. 92-3484.

Nos. 92-3405, 92-3484.

United States Court of Appeals, Third Circuit

August 24, 1993

Argued March 3, 1993.

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Thomas W. Corbett, Jr., U.S. Atty., Michael L. Ivory, Asst. U.S. Atty., Paul J. Brysh, Asst. U.S. Atty., Bonnie R. Schlueter, (argued), Asst. U.S. Atty., Pittsburgh, PA, for appellee.

William C. Kaczynski (argued), Pittsburgh, PA, for Luis Faustino Hidalgo, appellant in No. 92-3405.

Thomas S. White, Federal Public Defender, Karen Sirianni Gerlach (argued), Asst. Federal Public Defender, Pittsburgh, PA, for Jesus Cepeda, Jr., appellant in No. 92-3484.

Before BECKER, GREENBERG, Circuit Judges and ROBINSON, District Judge [*].

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BECKER, Circuit Judge.

This appeal by defendants Luis F. Hidalgo and Jesus Cepeda, Jr. raises an important issue concerning the appropriate remedy for juror misconduct discovered mid-trial. On the seventh day of a nine-day trial, the district court learned that jurors, in disregard of the district court's admonition, had been discussing the case among themselves. The court responded by distributing a two-part questionnaire asking the jurors whether they had discussed the case with other jurors and, if so, whether those discussions had led them to form an opinion as to the guilt or innocence of the defendants. The questionnaire asked only for "yes" or "no" answers. In response, all the jurors admitted that they had prematurely discussed the case, but also responded that they had not arrived at a conclusion as to guilt or innocence.

The district court denied the defendants' requests for individualized voir dire designed to ascertain more precisely what had occurred and the extent of any prejudice flowing from the premature deliberations. Concluding that the defendants had suffered no prejudice as a result of the jury's misconduct, the district court denied their motions for a mistrial. The trial resumed, and the defendants were convicted of conspiracy to distribute cocaine and heroin, 21 U.S.C. Secs. 841(a)(1) and 846; conspiracy to possess with intent to distribute cocaine and heroin, 21 U.S.C. Secs. 841(a)(2) and 846; and the use of a firearm in relation to the drug trafficking offenses. 18 U.S.C. Sec. 924(c)(1).

We conclude that the district court erred by refusing to conduct a more searching inquiry into the potential prejudice to the defendants from the jury's misconduct. Ordinarily, a defendant must show that the error was prejudicial in order to obtain a new trial. However, because the two-part questionnaire did not provide any significant information about the nature or extent of the jurors' discussions, we fail to see how the district court could have made a reasoned determination that the defendants would suffer no prejudice due to the jurors' premature discussions. Under these circumstances, i.e., where the jury misconduct was discovered mid-trial but there is no way for us to determine whether the defendants were or were not prejudiced, we will vacate the convictions and remand for a new trial, even though the defendants have not established prejudice.

Hidalgo and Cepeda further contend that the government presented insufficient evidence to support the conviction on the firearms charge. In particular, the defendants submit that the individual who brandished the gun, Juan Hernandez, was involved in a different drug distribution conspiracy and that they should not be responsible for his use of the firearm. We address this issue, which was vigorously pressed, to obviate any double jeopardy challenges in connection with the retrial. Concluding that the government provided ample evidence that there was one conspiracy to distribute drugs and that Hidalgo and Cepeda should have reasonably foreseen that the gun would be used to further the conspiracy, we reject the defendants' contentions.


The evidence adduced at trial concerned the efforts of two New York City drug suppliers to infiltrate the Pittsburgh market for illegal drugs. The government's case, developed through two key witnesses, Nancy Ramos and Juan Hernandez, disclosed the following evidence. Niriz Filix, a/k/a "Papo" and Rosa Queroll were competing drug suppliers in New York. Before Hidalgo and Cepeda left for Pittsburgh in an attempt to sell drugs in that market on behalf of Queroll, they had worked only for Queroll and not for Papo. Ramos, in contrast, worked for both Papo and Queroll while Hernandez had worked exclusively for Papo. Joseph Resko had been a drug distributor and customer of Papos' in Pittsburgh. Queroll was interested in selling drugs in the Pittsburgh area and thus hired Resko to also serve as her middleman in the Pittsburgh drug market.

Consequently, at a meeting of Ramos, Resko, Hernandez, Queroll, Hidalgo and Cepeda, it was agreed that Queroll--with Hidalgo, Cepeda, and Ramos working for her--would

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supply Resko with cocaine and heroin which would be transported by Hidalgo, Cepeda, Ramos and Resko to Pittsburgh by car at the same time that Ramos, Resko and Hernandez would also transport cocaine supplied by Papo. The above-named individuals agreed that the Papo supply and the Queroll supply were to be transported to the Pittsburgh area on the same trip. According to Ramos, Hidalgo and Cepeda were to participate in this trip in order to oversee the drug delivery and ensure that "nobody got ripped off."

Ramos testified that in April of 1991 in New York, she, Hernandez and Resko obtained one kilogram of cocaine from Papo, which they hid in the door panel of a rented stationwagon. They then picked up Cepeda and Hidalgo who, according to Ramos, provided eight ounces of cocaine and bundles of heroin (supplied by Queroll), which they and Resko stored in the other door of the station wagon. Ramos, Resko, Hernandez, Hidalgo and Cepeda then drove to Pittsburgh to distribute heroin and cocaine in the Pittsburgh area. According to Ramos, the group arrived in Pittsburgh and checked into a single motel room. Ramos testified that Cepeda took all the drugs--both those supplied by Papo and those supplied by Queroll through Hidalgo and Cepeda--and deposited them in a white plastic bag which Cepeda placed in the ceiling of the motel room. Ramos testified that later that night, with Hidalgo present, she telephoned someone she knew as "Drew," who was actually Andrew Toth, an undercover agent from the Pennsylvania Bureau of Narcotics. Toth expressed interest in buying all of the cocaine and the heroin. Ramos testified that both Hidalgo and Cepeda assented to this plan to sell all the drugs together to Toth.

According to Ramos, the next morning, while the entire group was present, Resko removed a pistol from his pants and placed it on the bed. Ramos testified that the pistol had been supplied by Papo. Hernandez testified that Resko later placed the gun in the ceiling, where the drugs were stored. Hernandez further testified that Resko subsequently placed the gun on a table in the motel room, and that Hernandez picked it up and placed it in his pocket.

That day, Toth met with Resko, Hernandez, and Cepeda, ostensibly to complete the drug transaction. After Resko showed Toth the white plastic bag with the drugs, Toth handed Resko a briefcase meant to contain the purchase money. At that point, Toth and a fellow officer announced that they were police officers and attempted to arrest Resko, Ramos and Hernandez. According to Toth, Resko fled while Hernandez brandished the pistol that Hernandez testified belonged to Resko. Having subdued Hernandez, Toth testified that he and his partners then located Cepeda, Resko, Hidalgo and Ramos, all of whom were arrested.

In January, 1992 a grand jury indicted Cepeda, Hidalgo and Resko. The grand jury charged Cepeda and Hidalgo on counts two only. Count one charged that they, along with Resko, had entered into a conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine and more than one kilogram of heroin in violation of 21 U.S.C. Secs. 841(a)(1), 841(a)(2) and 846. Count nine charged that Hidalgo and Cepeda, along with Resko, had unlawfully carried and used a firearm in conjunction with count one, in violation of 18 U.S.C. Sec. 924(c)(1).

Hidalgo and Cepeda went to trial together. 1 Commencing with its preliminary instructions, the district court repeatedly admonished the jury that it was to refrain from discussing the case until the close of the trial, that is until all the evidence was in and the jury was formally given its instructions. Nonetheless, approximately seven days into a nine-day trial, during a break in the presentation of Cepeda's case, a juror approached a court officer and told him that the members of the jury had been discussing the case during their recesses and while waiting in the jury room. The court officer informed the trial court of this fact, and the court informed counsel. Hidalgo and Cepeda then moved the court to conduct individualized voir dire of the jurors to ascertain what had occurred and the extent of any prejudice caused by the alleged premature deliberations.

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In the alternative, they moved for a mistrial.

The district court denied both motions. Rather than conduct an individualized voir dire of the jurors, the court summoned the jurors en masse, informed them of the problem, 2 and then gave each a written questionnaire which asked:

  1. Have you participated in discussing the facts of this case with one or more other jurors during the trial? Yes __ No __

  2. If your answer to Question No. 1 is "Yes," have you formed an opinion about the guilt or non-guilt of either defendant as a result of your discussions...

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