544 F.3d 577 (5th Cir. 2008), 07-51429, United States v. Campbell

Docket Nº:07-51429.
Citation:544 F.3d 577
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles CAMPBELL, Defendant-Appellant.
Case Date:September 30, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 577

544 F.3d 577 (5th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,


Charles CAMPBELL, Defendant-Appellant.

No. 07-51429.

United States Court of Appeals, Fifth Circuit.

September 30, 2008

Page 578

Joseph H. Gay, Jr., Asst. U.S. Atty., Elizabeth Berenguer (argued), San Antonio, TX, for U.S.

Donna F. Coltharp (argued), Henry Joseph Bemporad, Fed. Pub. Def., San Antonio, TX, for Campbell.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, STEWART and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Charles Campbell appeals his felony conviction on the ground that his second trial violated the Double Jeopardy Clause of the Fifth Amendment. We affirm.


Campbell was arrested and charged with being a felon in possession of a firearm in violation of 18 U.S.C. § § 922 and 924(e). He pleaded not guilty and a trial before a jury was subsequently commenced. At the close of approximately six hours of testimony over the course of two days, the district court dismissed the lone alternate juror without instructions to refrain from discussing the case. The jury then retired to deliberate.

Soon thereafter, the jury sent a note to the district judge stating the following: “ Francisco Flores does not understand

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what[']s going on and need[s] to talk to the judge." The parties agree that this note referred to the juror who had identified himself in response to questions during the voir dire process as Francisco Ramirez. Campbell speculates in his appellate brief that Ramirez's name was Ramirez-Flores or Flores-Ramirez. In any event, this and subsequent notes from jurors referred to Ramirez as “ Flores." To avoid confusion, we will refer to the juror as “ Ramirez."

After receiving this note, the judge brought the parties together to discuss how to respond. They considered the possibility of speaking to Ramirez directly but decided against it. Instead, the court responded to the jury's question as follows: “ If [Ramirez] has a question or questions, please have [Ramirez] write down his question or questions."

After a brief period of time, the court received another note. It stated: “ One of our jurors, [Ramirez], is Spanish dominant. What are the implications to the outcome? Interpretation of our deliberations is necessary." The judge again conferred with the parties and said: “ in light of that, I understand this to read that Mr. [Ramirez] wants a translator so he can fully understand the deliberations and questions of his fellow jurors. My problem with that is, if he needs the assistance in there, how was it that he was able to understand what was going on in here [referring to the trial testimony]?"

The court then explored the option of recalling the alternate juror. But, as defense counsel noted, this was not feasible under Rule 24(c)(3) of the Federal Rules of Criminal Procedure because no steps were taken to insulate the alternate juror before dismissal. After obtaining Campbell's agreement, the judge decided to call Ramirez to the courtroom to determine how much of the trial he understood.

In his conversation with the court, Ramirez stated that he was primarily a Spanish speaker and that he thought he “ had problems" understanding the testimony. Ramirez also said “ Yes" when the court asked whether he might have missed some of the testimony during the trial. Ramirez confirmed that he, and not the other members of the jury, had requested an interpreter for the jury deliberations. But when the Government asked, “ Did you understand everything that was presented during the course of this trial?," Ramirez stated, “ Uh-huh. Yes, sir. I understand what you are talking about." Additionally, when the court later asked whether he understood the evidence and witnesses, Ramirez stated that he understood “ [a]ll of it."

The court, the Government, and Campbell's counsel discussed how to proceed. The district judge said he was inclined to let Ramirez continue deliberating. Defense counsel agreed with this course of action. The court then sent a note to the jury stating the following: “ The Court is satisfied that Mr. Ramirez can serve as a juror. Please review your instructions and continue your deliberations."

Shortly thereafter, the jury sent out yet another note stating: “ We, the jurors, are stuck on a deadlock right now. Everybody is very strong on their position. We [are] still having communication problems with Mr. [Ramirez]." At that point, the district court pondered but quickly dismissed the idea of providing a translator for Ramirez in the jury room: “ I have never heard of the ability to send in a translator into the jury deliberation room. That is without precedent. So I don't know what I can do about that." The Government then brought up the possibility of dismissing Ramirez and continuing with eleven jurors, and defense counsel objected.

Looking for guidance, the court reviewed the Advisory Committee Notes to

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Rule 23 of the Federal Rules of Criminal Procedure, which state, in relevant part, “ [i]f the trial has been brief and not much would be lost by retrial, the court might well conclude that the unusual step of allowing a jury verdict by less than 12 jurors absent stipulation should not be taken." Conducting a balancing analysis, the court stated that it “ should lean more towards mistrial than [it] should proceeding with eleven." Concerned about whether Ramirez understood all of the testimony at trial, the court asked defense counsel, “ why am I not just better off calling a mistrial right now and doing this all over again?" Defense counsel responded, “ Well, I think you have the authority to do that." But the court ordered the jury to continue deliberating and, an hour later, the jury recessed for the day.

The next morning, Ramirez notified the courtroom security officer that he wanted to speak to the judge. Ramirez addressed the court, in the presence of the...

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