593 F.2d 415 (1st Cir. 1979), 79-1086, United States v. Pierce

Docket Nº:79-1086, 79-1087.
Citation:593 F.2d 415
Party Name:UNITED STATES of America, Appellee, v. James D. PIERCE and Patrick A. Lanning, Defendants, Appellants. UNITED STATES of America, Appellee, v. Carlos A. GUERRERO, Defendant, Appellant.
Case Date:March 05, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 415

593 F.2d 415 (1st Cir. 1979)

UNITED STATES of America, Appellee,

v.

James D. PIERCE and Patrick A. Lanning, Defendants, Appellants.

UNITED STATES of America, Appellee,

v.

Carlos A. GUERRERO, Defendant, Appellant.

Nos. 79-1086, 79-1087.

United States Court of Appeals, First Circuit

March 5, 1979

Argued March 1, 1979.

Donald L. Ferguson and Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for defendants, appellants Pierce and Lanning.

Roxana Marchosky, Boston, Mass., by appointment of the Court, for defendant, appellant Guerrero.

Walter B. Prince, Asst. U. S. Atty., Boston, Mass. with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH, Senior Circuit Judge, CAMPBELL and BOWNES, Circuit Judges.

Page 416

ALDRICH, Senior Circuit Judge.

As the result of the Coast Guard's finding 34 tons of marijuana in the hold of a vessel boarded 55 miles off the Massachusetts coast, defendants were indicted for conspiracy to import a controlled substance. An anticipated defense was severely punctured by documents found in an allegedly locked valise which the Coast Guard had opened without a warrant. After the jury was impaneled it was sent to its room while the court took testimony and heard arguments on a motion to suppress the documents. It first concluded that it would deny the motion, but later expressed doubts, and instructed government counsel not to refer to the valise in his opening, and said it would pass finally on the motion later. The trial then proceeded. The next morning a juror reported to the clerk that, during the hearing from which the jury had been excluded, they had gone to the cafeteria; that the marshal had permitted the husband of one of the jurors to join them, and that the husband had been in the courtroom and had spoken to some of the jurors about what had gone on. The clerk informed the court, and the court called counsel to the lobby. In consequence of what there transpired the court declared a mistrial over the objection of at least two of the three defendants. Thereafter, the court having, meanwhile, denied the motion to suppress, defendants objected to the impaneling of a new jury on the ground of double jeopardy. The court denied their motion, and because one defendant was in jail and eight crew members were in protective custody, we proceeded promptly with these appeals.

At the outset of the lobby conference counsel for one of the defendants had requested that the court first decide the motion to suppress in order to determine the amount of taint, and be of help to defendants in deciding whether to waive any claim of prejudice. The court declined, responding that it did not appear to it to make any difference. It then called, seriatim, four jurors. The first, Mrs. Weiner, who had reported the incident to the clerk, testified that Mrs. Priest, another juror, had told her that the husband of a further juror had been sitting in the courtroom during a hearing and had reported thereon. "The words I had received . . . (were) that the attorneys were trying to work something out with the Judge and he wasn't buying it. . . . (His account) passed to everybody very quickly, once everybody got down there . . . it passed through everyone very quickly." Mrs. Priest testified that a juror (Mrs. LaJoie) stated to her that another juror had told her, following lunch, that her husband had been in the courtroom and had told her "something about they may be going to dismiss it." Mrs. LaJoie, in turn, corroborated this, testifying that "all he said" was "something to the effect that they were trying to dismiss the case." Finally, Mrs. Shoemaker testified that her husband "went down to coffee and . . . lunch . . . (;) (that) we were talking about sitting upstairs for three hours and he said he thought it was they were trying to get a piece of evidence not to be brought up in the case . . . . I think . . . it was a valise, or something. I don't know. And I am not positive but I think he said they weren't going to have it shown, but I really don't remember because we were talking about buying our house and everything . . . ." She stated that the juror who at last testified was present; that she could not remember if anyone else was.

After Mrs. Shoemaker left, the court stated that it did not see any alternative except to declare a mistrial. This, however, was not a definite ruling. The court invited counsel to put whatever they wanted in the record. Two of the three...

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