862 F.2d 92 (6th Cir. 1988), 87-3725, United States v. Zelinka

Docket Nº:87-3725.
Citation:862 F.2d 92
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert ZELINKA, Defendant-Appellant.
Case Date:November 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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862 F.2d 92 (6th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Robert ZELINKA, Defendant-Appellant.

No. 87-3725.

United States Court of Appeals, Sixth Circuit

November 25, 1988

Argued July 26, 1988.

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J. Gerald Ingram, argued, Ingram & Ingram, Youngstown, Ohio, for defendant-appellant.

J. Matthew Cain, argued, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Before LIVELY, MERRITT and KRUPANSKY, Circuit Judges.

LIVELY, Circuit Judge.

This appeal from a jury conviction for conspiracy to distribute cocaine and unlawful use of communication facilities raises several claims of reversible error in the district court proceedings. The two most serious challenges involve an unauthorized contact with jurors and the admission of evidence that the defendant contends should have been excluded under Federal Rule of Evidence 404(b). Zelinka does not challenge the sufficiency of the evidence, and we will discuss the claimed errors in turn after briefly stating the facts.


On December 16, 1986, a grand jury in the Northern District of Ohio indicted Zelinka and sixteen other individuals for conspiracy to distribute cocaine. The indictment charged various named conspirators, including Zelinka, with overt acts that occurred between March 19, 1985, and July 3, 1985. Many of these charges involved the use of telephones to facilitate the distribution of drugs. FBI agents arrested Zelinka on December 17, 1986, and found in his possession a half gram of white powder which proved to be cocaine and several clear plastic bags. Zelinka and one other co-conspirator were tried together.

The trial began on April 29, 1987. On May 5 a juror reported to the court after the lunch recess that a spectator who appeared to be associated with Zelinka had made a disturbing comment as he and several other jurors boarded a courthouse elevator. The statement was something to the effect that it would be too bad if the elevator should crash. The trial judge then called the juror into chambers and questioned him, on the record, with all counsel present. The juror repeated his earlier statement and said that after they were on the elevator some of the women jurors expressed fear about the comment and about the fact that some of the spectators appeared to stare at them intently.

The court then conducted extensive individual voir dire of all the jurors to determine whether the incident had affected the ability of any juror to maintain a fair and impartial posture if the trial were permitted to continue. Several jurors expressed some unease because of the overheard comment and stares. One juror related that she had been having nightmares since the trial began. Nevertheless, all stated that they could continue to perform according to their oath, uninfluenced by the elevator incident or other concerns, and render an impartial verdict.

Following examination of the individual jurors defense counsel moved for a mistrial or for removal of three jurors. The court then assembled the jury in the courtroom and asked them as a group whether any of them had "any reason at all ... to believe that you could not finish this case as a fair and impartial juror as you indicated to us when we originally began?" No juror replied that his or her impartiality had been affected. The court then asked if any juror

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felt "they are going to have a problem with this," referring specifically to anything that had taken place outside the courtroom. Again, no one responded affirmatively. The court then denied the defense motions, and the trial resumed.

During the trial a government witness testified concerning a co-conspirator's statement to him that indicated Zelinka was involved in a drug transaction a few days after the cut-off date for the conspiracy as described in the indictment. Defense counsel objected on the ground that the testimony involved "criminal conduct which is beyond the time period set forth in the indictment." After hearing argument the court admitted the testimony as part of the "res gestae" of the conspiracy.

In connection with another evidentiary issue, Zelinka made a motion in limine to exclude evidence at trial of his possession of cocaine and plastic bags at the time of his arrest. The trial court deferred ruling until the trial. On the date the arresting agent was scheduled to testify the prosecutor reminded the court of the pending motion, and he and Zelinka's attorney argued the admissibility question. Defense counsel argued that evidence of possession of a half gram of cocaine more than a year after the last date set forth in the indictment was irrelevant, that if the evidence had any relevance the relevance was outweighed by its prejudicial effect, and that the evidence constituted proof of other crimes. The prosecutor responded that the amount and strength (93%) of the cocaine indicated that it was "in distributable form." The court ruled the evidence admissible.

The jury convicted Zelinka on the conspiracy count and one telecommunications count. Zelinka received concurrent six and four year sentences.



In arguing that the district court abused its discretion by denying his motion for a mistrial the defendant concentrates on the responses of two jurors. One of the jurors heard the remark at the elevator and stated that she and others around her were shocked and could not believe a person "would say that." The juror testified that she and five or six other jurors discussed the matter at lunch and that they felt uneasy. She stated, however, that she did not believe either side was attempting to influence her and that the incident would neither distract her nor rob her of her impartiality and fairness. The other juror upon whom the defense focuses did not hear the comment at the elevator. However, she heard about it upon returning from lunch, and stated that it made her nervous. She testified about nightmares and a general nervousness at being involved in the trial. Although she attributed both the nightmares and the nervousness to the defense, she stated that she had seen nothing to indicate that anyone was trying to influence her verdict. After being assured by the court that there was nothing wrong with not being able to continue, this juror stated that she felt she could do the job she was sworn to do, uninfluenced by anything that had happened, including her dreams.


The Supreme Court has outlined the procedure that district courts should follow when advised of unauthorized contacts with a juror. In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), an unnamed person told a juror in a criminal trial that he could profit by returning a verdict favorable to the defendant. The Court stated that any unauthorized private communication or contact with a juror in a criminal case is presumptively prejudicial and that the government bears the heavy burden of establishing that such communication or contact was harmless to the defendant. Id. at 229, 74 S.Ct. at 451. The Court then prescribed the procedure to be followed by a trial court when advised of such a contact:

The trial court should not decide and take final action ex parte on information such as was received in this case, but should determine the circumstances, the

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impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.

Id. at 229-30, 74 S.Ct. at 451.

In Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), the district court granted habeas corpus relief to a petitioner who complained that one of the jurors at his state court trial had submitted an application for employment to the district attorney's office during the trial. The trial court conducted a post-trial hearing on the defendant's motion to set aside the verdict. Evidence at the hearing showed that the prosecutors learned of the application while the trial was in progress, but did not advise the court or defense counsel. The district attorney learned of the application after the trial had ended, and advised the court and all counsel. The trial court concluded that the juror's conduct had not unduly prejudiced the defendant. In the habeas proceedings, the district court found insufficient evidence to demonstrate that the juror was actually biased, but imputed bias under the circumstances. The court of appeals affirmed on different grounds. Without considering whether the juror was actually or impliedly biased, it found a due process violation in the failure of the prosecutors to disclose their knowledge of the juror's application.

In reversing, the Supreme Court disagreed with the petitioner's contention that "a court cannot possibly ascertain the impartiality of a juror by relying solely upon the testimony of the juror in question." Id. at 215, 102 S.Ct. at 945. The Court discussed its decision in Remmer and stated that the trial judge in the case on appeal had accorded "precisely the remedy" ordered in Remmer. Id. at 216, 102 S.Ct. at 945. One of the Court's statements, however, has created problems for the courts of appeals. Before specifically comparing the state trial judge's actions with the Remmer formula, the Court stated, "This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Id. at 215, 102 S.Ct. at 945 (emphasis added).

This court has consistently held that Smith v. Phillips reinterpreted Remmer to shift the burden of showing bias to the defendant rather than placing a heavy burden on the government to show that an unauthorized contact was harmless. In United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105...

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