U.S. v. Mejia, 02-1767.

• Decision Date: 29 January 2004
• Docket Number: No. 02-1767.,02-1767.
• Citation: 356 F.3d 470
• Parties: UNITED STATES of America, Appellee, v. Bienvenido MEJIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 470

356 F.3d 470

UNITED STATES of America, Appellee, v. Bienvenido MEJIA, Defendant-Appellant.

No. 02-1767.

United States Court of Appeals, Second Circuit.

Argued: October 2, 2003.

Decided: January 29, 2004.

Appeal from the United States District Court for the Southern District of New York, Marrero, J.

Tracy W. Young, New York, N.Y. (Lisa Scolari, on the brief), for Defendant-Appellant.

Jeffrey A. Udell, Assistant United States Attorney for the Southern District of New York, New York, N.Y. (Christopher J. Clark, Assistant United States Attorney, of counsel; James B. Comey, United States Attorney, on the brief), for Appellee.

Before: CARDAMONE, MINER and CALABRESI, Circuit Judges.

MINER, Circuit Judge.

Defendant-appellant Bienvenido Mejia appeals from a judgment of conviction and sentence entered after a jury trial in the United States District Court for the Southern District of New York (Marrero, J.). Mejia was convicted of conspiracy to distribute, and possess with intent to distribute, more than five kilograms of cocaine, in violation of 21 U.S.C. § 846. Prior to the jury verdict, Mejia had moved for a mistrial predicated upon the ex parte response of the District Court to a message from the jury. The message indicated that the jury was at an impasse and set forth the vote of the divided jury. Mejia contends on appeal, as he did in the District Court, that the ex parte response was inappropriate, substantially erroneous and effectively induced the jury verdict. We agree and vacate the judgment of conviction.

BACKGROUND

Mejia was convicted largely on the trial testimony of Victor Medina and Ramon Nunez, both of whom described their participation, as well as the role of Mejia and others, in a cocaine smuggling conspiracy. Prior to giving their testimony in the trial of Mejia, both Medina and Nunez pled guilty to conspiracy to distribute and possess with intent to distribute cocaine. Medina described the methods by which produce companies would receive from the Dominican Republic shipments of produce within which cocaine was secreted. One of the companies, known as Neuvo Renacer, was owned by Mejia. Medina testified that he unloaded cocaine from shipping containers sent to Mejia's company on three separate occasions. On each such occasion, according to Medina, Mejia would pick up Medina and others in his van at a gas station in Manhattan and drive them to the rear yard of the Bronx Terminal Market. There, Mejia would open a shipping container with a key and provide the necessary tools for the removal of the cocaine from behind the door panels of the container. The space left vacant by the cocaine was filled with foam mattresses brought by Mejia. The door panels then were restored.

Medina also testified that he had made payments to Mejia at the direction of a co-conspirator, including one payment of cash in the sum of $70,000 contained in a duffle bag. Sometime after the payment, a customs search of Mejia as an outbound passenger on a flight to the Dominican Republic at JFK International Airport revealed in excess of $70,000 in undeclared currency. Medina, at the time of his arrest, had in his possession an address book that included the pager number of Mejia. Like Medina, Nunez unloaded cocaine out of shipping container doors, performing this service for Mejia three or four times. He also delivered money to Mejia, on one occasion receiving a box containing approximately $160,000 in cash for delivery to Mejia. Telephone records indicated several contacts between a cellular telephone number registered to Mejia and a cellular telephone belonging to Nunez.

Trial testimony of law enforcement agents included the description of two shipping containers seized by customs agents. The shipments were sent to Del Campo Produce in Manhattan by a company in the Dominican Republic known as Exportadora de Productos Agricolas Nacionales ("Exportadora"). The shipping documents listed the cargo of the seized containers as coconuts, oranges, dasheens and pumpkins. After the agents discovered and removed the cocaine, they reassembled the containers and fitted them with electronic tracking devices and alarms to be activated on the opening of the containers. The containers then were trucked from Port Elizabeth, New Jersey to the rear yard of the Bronx Terminal Market. The containers had been under surveillance for one day when the alarm devices were triggered. The officers moved in and discovered men inside the containers, including Medina and Nunez, engaged in the removal of cocaine.

In addition to the testimony given by Medina and Nunez, Mejia's role was demonstrated by other evidence, including the records of Mejia's produce company. Out of seventeen shipments to the United States by Exportadora in the year 2000, thirteen were sent to Mejia's company, Nuevo Renacer, and three were sent to Del Campo Produce. Indeed, Neuvo Renacer received only fourteen shipments of produce for the entire year. The Government's evidence also demonstrated that containers used in the year 2000 by Mejia's company had been located by customs officials in the Ports of Miami, New Orleans, Atlanta and New Jersey. The doors of each container had been hollowed out and stuffed with foam mattresses in the manner described by Nunez and Medina. Additionally, the odor of narcotics was detected through canine identification in two of the containers. The sole witness for Mejia was Domingo Rivas, who was familiar with Mejia's produce business and testified that the business had gross annual sales of over $1 million dollars.

On the sixth day of Mejia's conspiracy trial, the court instructed the jury prior to deliberations and provided a copy of its instructions to each of the jurors. No objections were raised, and the jury began deliberations immediately thereafter. After requesting all the trial exhibits, the jury sent out the following note: "Please give us our cell phones. We can't come to an agreement." The court responded through the Marshal that the jurors could not have phones in the courthouse. Shortly thereafter, the court adjourned for the day, the jury having agreed to resume deliberations the next morning. On the second day of deliberations, the jury sent out two notes with questions regarding Mejia's liability for the contents of the shipping container. These notes were supplemented by a fourth question, asked by the foreman in open court. The District Judge immediately responded to that question, apparently without objection.

The jury continued to deliberate and at approximately 4:00 P.M. sent out the following note: "We the jury can't all agree on this case!" The court disclosed this note to the parties and consulted with them as to an appropriate response. The court proposed to ask the jury to continue its deliberations and advised the parties that it would consider giving the standard "Allen charge"¹ if the jury remained divided thereafter. Accordingly, the following instruction was given in open court, without objection:

The court recognizes that unanimity is a very difficult concept to apply and to reach under any circumstances, and that under these circumstances where the stakes are so high for all concerned it is even more difficult. But it is the duty of the jury to make the effort that is demanded by the circumstances and to in this case perhaps try again and see to what extent further exchange, discussion [and] deliberations among yourselves might be able to bear an outcome that represents the view of all the jurors.

Sometime after receiving that instruction, the jury sent out a note indicating a desire to break for the day at 5:00 P.M. and resume deliberations the next day at 10:00 A.M. The court thereafter was adjourned.

The next day, the third day of deliberations, the jury sent out a note asking for supplies, which apparently were furnished. Thereafter, the court provided a draft of an Allen charge to the parties, proposing to issue it if the jury should again report disagreement. Neither party objected to the proposal, which was made in the presence of counsel and Mejia. Later that day, a jury request for certain testimony and exhibits was fulfilled without objection following discussion between the court and counsel. This occurred at about 1:45 P.M.

At 2:10 P.M., the jury sent to the court the following note, signed by the foreperson: "We the Jury can't come to an agreement — we have exhausted all possibilities & have had the same vote for the past 2½ full days 11-1." Responding to this note without consulting the parties, the court sent to the jury a copy of page 37 of its instructions, having marked with a highlighter the following two sentences found on two different parts of the page: "Do not specify what the verdict is in the note.... If you are divided, do not report how the vote stands, and if you have reached a verdict, do not report what it is until you are asked in open court." It was the intention of the court, as later expressed in its written opinion, that the note be returned without the report of the vote, whereupon the Allen charge would be given. However, at about 3:00 P.M., the jury sent a new and different note. It stated: "We the jury have reached a verdict."

The court then assembled the parties in the courtroom, advised them of the 3:00 P.M. verdict note as well as the 2:10 P.M. note to which the court had responded without consultation with counsel and advised them that there had been a split among the jurors, but did not reveal the actual vote. The court also advised the parties of its expectation that the 2:10 P.M. note would be returned without disclosure of the division, and that the court had delayed notifying the parties because it had anticipated a revised note.

Contending that he should have had the opportunity to comment on the 2:10 P.M. note and to request the Allen charge in response to it, Mejia moved for a mistrial. The court denied the motion, stating that a ruling would...