648 F.2d 625 (9th Cir. 1981), 79-1368, United States v. Patterson

Docket Nº:79-1368 to 79-1371.
Citation:648 F.2d 625
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward D. PATTERSON, Richard L. Flintoff, Jimmie R. Oglesby, and Gregory C. Martinson, Defendants-Appellants.
Case Date:June 15, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 625

648 F.2d 625 (9th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward D. PATTERSON, Richard L. Flintoff, Jimmie R. Oglesby,

and Gregory C. Martinson, Defendants-Appellants.

Nos. 79-1368 to 79-1371.

United States Court of Appeals, Ninth Circuit

June 15, 1981

Argued and Submitted Jan. 7, 1981.

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[Copyrighted Material Omitted]

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David L. Shorett, Chambers, Marston, Hodgins, Shorett, Young & Gillingham, Seattle, Wash., argued, for Patterson.

Kelly P. Corr, Seattle, Wash., argued, for Oglesby.

Katrina C. Pflaumer, Seattle, Wash., argued, for Martinson.

Richard B. Jones, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

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

Before WRIGHT, POOLE and NORRIS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The appellants were convicted of narcotics offenses. Patterson, Flintoff, and Martinson, who were tried by a jury, contend that some jurors were prejudiced and that the court erred in several respects. Oglesby, who was tried by the court, challenges its refusal to suppress evidence taken from him after he was stopped by federal agents.

I. FACTS

Flintoff, accompanied by Shevalier 1 and informant Wood, met undercover agents of the Drug Enforcement Administration (DEA) in Tacoma and arranged to sell them cocaine and heroin. The agents paid Shevalier for the drugs at the residence of Gustafson

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2 and Patterson. Flintoff and Shevalier then went with the agents to a residence on South 104th Street, allegedly Martinson's, 3 to pick up the drugs.

Flintoff and Shevalier got out of the agents' car at the 104th Street residence and told the agents to drive around. According to Shevalier, Martinson then left the residence and returned with cocaine, which he sold to Shevalier. When the agents returned, Shevalier delivered the cocaine. He later sold them a sample of heroin.

Flintoff told the agents he could sell them more cocaine and heroin. In a second transaction, DEA agents followed Flintoff's van to Gustafson and Patterson's residence, where Shevalier got out. Flintoff and Patterson then went to the 104th Street residence and returned with drugs, which Gustafson and Shevalier sold to the agents.

Negotiations continued. Informant Wood reported that Martinson was the source of the cocaine, and Shevalier indicated to agents that his source of heroin was Flintoff. Finally, in December 1978, a larger transaction was arranged.

Agents met Shevalier at a restaurant. After he gave them a photograph of cocaine for sale and accepted partial payment, they arrested him. Shortly thereafter, agents spotted Gustafson's van and arrested its occupants, Gustafson and Patterson. In the van the agents found a scale and a package of lactose, but no drugs.

Other agents were searching Gustafson and Patterson's residence pursuant to a warrant when Oglesby and Martinson arrived in Oglesby's brown station wagon. An automobile of similar appearance had been seen earlier at the 104th Street residence, but Oglesby was not known to the agents. Martinson entered the residence and was arrested.

Oglesby remained in the driver's seat with the motor running. Before they knew Martinson had been arrested, two agents converged on the car. Agent Rowe drove his car to block Oglesby's, and Agent Fitzgerald ordered Oglesby to turn off the motor and get out with his hands in sight.

As he emerged, Oglesby spontaneously told the agents that there was a gun under the front seat. Asked whether there was anything else in the car, he said that there was marijuana and cocaine. After this exchange he was advised of his rights and consented to a search of the car, pointing out various items of evidence.

In March 1979, Patterson was acquitted by a jury of charges arising from an alleged sale of phencyclidine (PCP) to DEA agents. The next day, in the same court, Patterson, Flintoff, and Martinson were tried before a jury in the present case for conspiracy to distribute cocaine and heroin, possession of cocaine with intent to distribute, and distribution of cocaine and heroin, in violation of 21 U.S.C. §§ 841 and 846. The jury found them guilty on all seven counts. 4

Oglesby was charged only in connection with the cocaine sales and waived the right to a jury trial. The cocaine distribution charges against him were dismissed by the court, but he was convicted of conspiracy to distribute cocaine and possession of cocaine with intent to distribute. 5

Patterson, Flintoff, and Martinson assert that six jurors were prejudiced by knowledge of the previous day's charges against Patterson, and they challenge the court's refusal to instruct the jury on informant credibility. Flintoff and Martinson, who chose not to testify, also challenge the court's refusal to instruct the jury on the right to remain silent.

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Oglesby contends that the court erred in refusing to suppress the evidence taken from him by the DEA agents on the ground that they lacked probable cause or founded suspicion.

II. OVERLAPPING JURY VENIRES

Patterson asserts, and the United States does not deny, that half the prospective jurors in the instant case (CR 79-2T) were members of the venire in his trial on other narcotics charges (CR 79-1T) the previous day. It appears that six members of the first panel became actual jurors in this case, three having been removed from the first panel by peremptory challenge. 6

Patterson contends that he was unconstitutionally denied an impartial jury, and Flintoff and Martinson contend that they were also affected. Patterson observes that evidence of his prior arrest and indictment on narcotics charges would not have been admissible as direct evidence of his guilt, see Fed.R.Evid. 404(b), and he argues that disclosure of his prior arrest and indictment to six jurors through overlapping venires was prejudicial.

In Leonard v. United States, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028 (1964) (per curiam), the Supreme Court reversed the defendant's conviction because a previous guilty verdict on a similar charge had been returned against him in the presence of the panel from which jurors were selected to try the second charge. Id. at 544, 84 S.Ct. at 1696. The Supreme Court found the procedure "plainly erroneous." Id. 7 See also Donovan v. Davis, 558 F.2d 201, 202 (4th Cir. 1977) (same persons should not have served as jurors in separate trials of defendant); accord, Virgin Islands v. Parrott, 551 F.2d 553, 554 (3d Cir. 1977).

When jurors have participated in the defendant's prior conviction, or his past guilt has been conclusively established in their presence, prejudice may be inevitable. But we believe that overlapping venires otherwise require reversal only if (1) the specific circumstances suggest a significant risk of prejudice and (2) examination or admonition of the jurors fails to negate that inference. Compare, e. g., United States v. Meeker, 558 F.2d 387, 388 (7th Cir. 1977) (prosecutor's repeated implication of past bad acts through leading questions is likely to be prejudicial despite the judge's admonitions), with United States v. Splain, 545 F.2d 1131, 1133 (8th Cir. 1976) (witness's isolated, "innocuous" reference to past bad acts is unlikely to be prejudicial; when evidence of guilt is "overwhelming," conviction should be affirmed).

The circumstances here suggest a significant risk of prejudice. The alleged offenses were similar and the trials only one day apart. Although Patterson was acquitted in the first trial, there is no indication that the jurors knew this. See Marrero v. Florida, 343 So.2d 883, 884 (Fla.App.1977) ("a jury is bound to be unfairly prejudiced against the accused by reason of the knowledge of his arrest for another crime"). 8

The United States maintains that the court conducted a "vigorous" examination

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of the jury, negating any inference of prejudice. But the trial transcript does not support this contention. There was no examination specifically targeted on the previous day's experience.

Addressing the jurors and alternates as a group, the court asked: "Does anyone know any of the defendants? (D)o any of you know anything about this case ? Has anyone at any time talked to you as individuals, all fourteen of you, about either (sic) of the individual defendants or all of them together, anything, has anybody mentioned anything to you about either individual defendants or all of them combined? I see no hands, so I assume none."

It is not at all clear whether the jurors who were present the day before understood these questions to refer to that experience. The court asked whether any jurors "knew" any of the defendants or knew anything about "this case" and whether anyone had talked to "all fourteen" jurors and alternates "as individuals" about the defendants. A negative answer would not necessarily mean that a juror did not remember the prior indictment. Failure to ask questions of individual jurors, coupled with refusal to permit such questions by counsel, casts further doubt on the procedure.

The trial court does have broad discretion to determine the scope of voir dire, United States v. Chenaur, 552 F.2d 294, 302 (9th Cir. 1977), and may take the lead in examining the jury for prejudice. United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir. 1979). But if "the trial judge so limits the scope of voir dire that the procedure used for testing does not create any reasonable assurances that prejudice would be discovered if present, he commits reversible error." Id. at 1298.

We conclude that the examination here was inadequate. The court was apparently trying to avoid tainting the jury through questions that conveyed information the jurors did not already have. In so doing, it failed to ask questions sufficiently specific in scope and direction to provide "any reasonable assurances that prejudice would be discovered...

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