958 F.2d 963 (10th Cir. 1992), 90-2184, United States v. Wood

Docket Nº:90-2184, 91-2007 and 91-2008.
Citation:958 F.2d 963
Party Name:UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Paul D. WOOD, Defendant-Appellee and Cross-Appellant.
Case Date:February 26, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 963

958 F.2d 963 (10th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee,

v.

Paul D. WOOD, Defendant-Appellee and Cross-Appellant.

Nos. 90-2184, 91-2007 and 91-2008.

United States Court of Appeals, Tenth Circuit

February 26, 1992

As Amended on Denial of Rehearing

March 17, 1992.

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Linda A. Akers, U.S. Atty., and Wallace Kleindienst, Sp. Asst. U.S. Atty., Phoenix, Ariz. (William Lutz, U.S. Atty., Albuquerque, N.M., with them on the brief), for plaintiff-appellant and cross-appellee.

David L. Norvell, Albuquerque, N.M., for defendant-appellee and cross-appellant.

Before BALDOCK, McWILLIAMS and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

A two-count indictment charged Defendant-appellee, Paul D. Wood, with making false statements to FBI agents, 18 U.S.C. § 1001, and obstruction of justice. Id. § 1503. Both counts were based on alleged false statements Defendant made to FBI agents who, on behalf of a federal grand jury sitting in Arizona, were investigating allegations of corruption against Peter MacDonald, the former Chairman of the Navajo Nation.

At the close of the government's case, Defendant moved for a judgment of acquittal. The district court raised the issue of whether count 2--the obstruction of justice charge--was deficient for failing to identify the false statements which were alleged to have obstructed justice. At the court's suggestion, Defendant moved to dismiss count 2 "for failure to adequately state a crime" under 18 U.S.C. § 1503. IV

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R. 507. The court granted Defendant's motion. 1

The trial continued on count 1--the false statement charge. The jury was instructed that, in order to find Defendant guilty, it must unanimously agree that only one of the six statements alleged in the indictment was false. The jury asked whether it was required to make a finding on the remaining false statements alleged in the indictment once it had unanimously agreed on one. The district court instructed the jury that if it unanimously agreed that one of the statements was false, it need not reach the other statements but that it should inform the court by special verdict on which statement it based its finding. 2 The jury returned a guilty verdict on count 1 based on the first statement.

After the jury was discharged, defense counsel discovered an easel and writing pad containing government counsel's notes in the jury room. The notes were made during examination of witnesses in order to assist the jury in following the witnesses' testimony. Page twenty of the notes highlighted four dates and events which were significant to the government's case and which corresponded to a timeline that the government counsel prepared and used during closing argument. The district court had earlier denied the jury's request to view the timeline during deliberation. Defendant moved for a judgment of acquittal on count 1 based on insufficient evidence and, alternatively for a new trial due to the jury's exposure to the notes during deliberation. The district court denied Defendant's motion for a judgment of acquittal, but granted Defendant's motion for a new trial.

The government appeals the district court's post-verdict order granting Defendant a new trial on count 1. Defendant cross appeals the order that granted him a new trial but denied his motion for a judgment of acquittal contending that double jeopardy bars retrial on count 1. 3 The government also appeals the district court's mid-trial order dismissing count 2.

I.

A.

The government's appeal of the district court's order granting Defendant a new trial on count 1 is properly within our jurisdiction under 18 U.S.C. § 3731. 4 Although § 3731 limits government appeals of new trial orders to cases in which the Double Jeopardy Clause does not prohibit further prosecution, Defendant's double jeopardy claim, raised in his cross-appeal, would not bar his retrial on count 1. "[W]hen a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal that ruling without running afoul of the Double Jeopardy Clause." United States v. Wilson, 420 U.S. 332, 352-53, 95 S.Ct. 1013, 1026, 43 L.Ed.2d 232 (1975). See also United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980). The Supreme Court has reasoned that "where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended." Wilson, 420 U.S. at 344, 95 S.Ct. at 1022 (footnote omitted). The government's appeal, in contrast to Defendant's

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cross-appeal, does not implicate the Double Jeopardy Clause's proscription of successive prosecutions because the government seeks to reinstate the jury's guilty verdict on count 1. Therefore, our jurisdiction is proper under § 3731.

B.

We review the district court's grant of Defendant's motion for a new trial for an abuse of discretion. United States v. Pinelli, 890 F.2d 1461, 1481 (10th Cir.1989), cert. denied, 495 U.S. 960, 110 S.Ct. 2568, 109 L.Ed.2d 750 (1990). In determining whether the jury's exposure to government counsel's notes during deliberation warranted a new trial, the proper inquiry for the district court was whether there was the "slightest possibility" that it affected the verdict. Johnston v. Makowski, 823 F.2d 387, 389-91 (10th Cir.1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988); United States v. Marx, 485 F.2d 1179, 1184 (10th Cir.1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974).

The government concedes that the presence of government counsel's notes in the jury room was improper. Nevertheless, the government contends that Defendant was not prejudiced because the jury did not consider the notes while deliberating. At a post-trial evidentiary hearing, the jury foreman testified that the jury did not look at the notes but rather turned immediately to a blank page in the back to make its own notations. However, the jury foreman was not in the room during the entire deliberation. Further, defense counsel testified that when he discovered the easel and writing pad in the jury room, it was open to page twenty which highlighted four dates and events significant to the government's case. During deliberations, the jury had requested a timeline prepared and used by the government during its closing argument and which also highlighted the four dates and events noted on page twenty, but the district court refused to provide it. The district court acted within its discretion in finding the jury foreman's testimony inconclusive, and the remaining circumstances indicate that the district court could reasonably find that jury was exposed to the extraneous material. Therefore, the district court did not abuse its discretion in granting the new trial.

Additionally, the government argues that because the material was intertwined inextricably with properly admitted evidence, even if the jury considered the notes during its deliberations, Defendant was not prejudiced. The government's reliance on Pinelli, which held that it was not an abuse of discretion to deny a motion for a new trial due to the jury's exposure to extraneous materials during deliberation, 890 F.2d at 1473, is inapposite and indeed supports the proposition that "[t]he trial judge is uniquely qualified to appraise the probable effect of information on the jury, the materiality of the extraneous material, and its prejudicial nature." United States v. Bagnoriol, 665 F.2d 877, 885 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). Cf. United States v. Renteria, 625 F.2d 1279, 1284 (5th Cir.1980) (remanding to district court for determination of whether extrinsic material was prejudicial). Similarly, the government's citation to cases which held that the jury's exposure to extrinsic material was harmless error, see Hughes v. Borg, 898 F.2d 695, 700 (9th Cir.1990); Lacy v. Gardino, 791 F.2d 980, 987 (1st Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986); United States v. Warner, 428 F.2d 730, 737 (8th Cir.), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1970), is unpersuasive given that the district court has already determined that there was a slight possibility of prejudice and our deferential standard of review. The cases applying a "reasonable possibility" standard to the district court's determination of prejudice, see United States v. Guida, 792 F.2d 1087, 1092 (11th Cir.1986); Llewellyn v. Stynchcombe, 609 F.2d 194, 195 (5th Cir.1980), are also unpersuasive because this circuit applies the less exacting "slightest possibility" standard.

The district court was particularly concerned about the jury's exposure to page twenty which detailed the events during

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"the critical time period in this case." The jury's request for the timeline prepared and used by the government during its closing argument is persuasive evidence that the sequence of events was critical to its verdict. Thus, we cannot say that the district court abused its discretion when it found that "the Government's closing argument was essentially in the room with the jury."

II.

Defendant contends that the Double Jeopardy Clause bars his retrial on count 1. First, Defendant argues that the evidence at the first trial was insufficient as a matter of law; therefore, his retrial on count 1 would violate the Double Jeopardy Clause. 5 Second, Defendant contends that because the jury's special verdict on count 1 was based solely on the first of six alleged false statements, he was implicitly acquitted on the remaining five false statements; therefore, the Double Jeopardy Clause dictates that his retrial on count 1 must be limited to the first false...

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