4 F.3d 843 (9th Cir. 1993), 92-10178, United States v. Angulo
|Docket Nº:||92-10178, 92-10183, 92-10221, 92-10254.|
|Citation:||4 F.3d 843|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Joel Victor ANGULO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fidel Barragan VARGAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Octavio Galvez ANGULO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jaime LIMON, Defendant-Ap|
|Case Date:||September 15, 1993|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted June 14, 1993.
[Copyrighted Material Omitted]
Michael W. Berdinella, John F. Garland, W. Scott Quinlan, and Daniel L. Harralson, Fresno, CA, for defendants-appellants.
William S. Wong, Asst. U.S. Atty., Fresno, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before: LAY, [*] Senior Circuit Judge, HUG, and SCHROEDER, Circuit Judges.
LAY, Senior Circuit Judge:
Joel and Octavio Angulo, Fidel Vargas and Jaime Limon were convicted following a second jury trial 1 for conspiracy to distribute cocaine and/or heroin and for possession with intent to distribute cocaine and/or heroin in violation of 18 U.S.C. Secs. 841(a)(1) and 846. We now remand to the district court for an evidentiary hearing relating to the defendants' motion for mistrial based upon claims of jury tampering. We find no merit to the other claims raised on appeal.
Limon asserts several evidentiary errors. These arguments are without merit. 2 We also find no merit in Limon's argument that the district court abused its discretion in denying his motions to sever and for a new trial and erred in denying his Rule 29 motion for acquittal based on insufficiency of the evidence. 3 We reject as well the argument by defendants Joel and Octavio Angulo that the district court erred in denying them downward adjustments based upon acceptance of responsibility. 4
We turn now to the question of jury tampering. During the course of the trial, a juror, Ms. Zodolske, received a telephone call at her home in which the caller said, "I know where you live." The next day, Ms. Zodolske asked the other jurors if they had received a strange phone call. She then explained the circumstances of the call to them, and several of them encouraged her to inform the judge. After bringing the issue to the judge's attention, Ms. Zodolske was called into the judge's chambers with the court reporter present but not the attorneys. The judge asked her about the call. She informed the judge that she had told the other jurors about the call. She admitted that she was scared and that she probably would not want twelve jurors like herself to sit on a case if she were the defendant. The judge thereafter excused Ms. Zodolske from the jury.
Later, the following dialogue with court and counsel took place:
THE COURT: She merely asked the other jurors if they had received such a call. They said no. That juror, if you will recall, also is the one who has the wedding in Davis on the 13th. She was not completely sure she could be fair. I concluded on the basis of my conversation that the other jurors were not affected, ... and I dismissed her.
MR. CHAVEZ: Your Honor, then she did convey that to the other jurors.
THE COURT: Mr. Chavez.
MR. CHAVEZ: Yes, sir.
THE COURT: She said she asked the other jurors if they received any strange calls last night. It's all on the reporter's transcript. If you want to buy a transcribed version, you may do so.
The judge then abruptly denied defense counsel's motion for a mistrial, stating, "All motions made or anticipated are denied." 5 He did not explain Ms. Zodolske's sudden absence to the other jurors, did not question the remaining jurors about possible bias, and did not give a curative instruction.
In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court remanded to the district court, some two years after the trial, to hold an evidentiary hearing based upon a defendant's motion for a new trial to determine whether improper contact with a juror was harmless to the defendant. Id. at 229, 74 S.Ct. at 451. The Court observed that there exists a presumption of prejudice which the government must rebut in cases involving jury tampering:
In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The...
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