Tarango v. McDaniel, 13-17071
Decision Date | 03 March 2016 |
Docket Number | No. 13-17071,13-17071 |
Citation | 837 F.3d 936 |
Parties | Manuel Tarango, Jr., Petitioner-Appellant, v. E. K. McDaniel; Nevada Attorney General, Respondents-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Ryan Norwood (argued), Assistant Federal Public Defender; Rene Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.
Victor-Hugo Schulze, II (argued), Senior Deputy Attorney General; Lawrence VanDyke, Solicitor General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.
Before: Raymond C. Fisher, Johnnie B. Rawlinson, and Mary H. Murguia, Circuit Judges.
The opinion and accompanying dissent filed March 3, 2016 are hereby amended.
Judge Fisher and Judge Murguia vote to deny the petition for panel rehearing and petition for rehearing en banc. Judge Rawlinson votes to grant the petition for panel rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35
.
The petition for panel rehearing and the petition for rehearing en banc are DENIED (Doc. 36).
No further petitions for rehearing and/or rehearing en banc will be entertained.
OPINION
MURGUIA
, Circuit Judge:
Petitioner Manuel Tarango, Jr. appeals the district court's denial of his petition for a writ of habeas corpus. He claims violation of his due process right to a fair and impartial jury, where a police vehicle followed Juror No. 2, a known holdout against a guilty verdict, for approximately seven miles, on the second day of deliberations, in a highly publicized trial involving multiple police victims. Tarango argues that the Nevada Supreme Court's decision upholding his convictions “was contrary to, or involved an unreasonable application of, clearly established federal law,” see 28 U.S.C. § 2254(d)(1)
, because the court failed to consider whether the contact between the juror and the police vehicle prejudiced the jury's verdict.
We hold that the Nevada Supreme Court's decision was contrary to Mattox v. United States , 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892)
, because the court improperly limited its inquiry to whether the external contact amounted to a “communication” and did not investigate the prejudicial effect of the police tail. We therefore review de novo the question whether the extrinsic contact could have influenced the verdict and prejudiced Tarango. Because the trial court prevented Tarango from offering certain evidence to demonstrate prejudice, we remand for an evidentiary hearing and further fact finding.
On December 5, 1999, a rock band of off-duty Las Vegas police officers, Metro Mike's Pigs in a Blanket, was performing at a local bar called Mr. D's. The bar was filled with off-duty police officers. A group of masked men entered the bar announcing a robbery, and a shoot-out ensued. Several patrons were shot, one robber was shot and killed, and one police officer, Officer Dennis Devitte, was shot several times. The surviving robbers escaped the scene and, six years later, Tarango was brought to trial on seven felony counts. The 2005 trial received considerable local media attention, and numerous Las Vegas Metro police officers attended as both witnesses and spectators.
After the jury began its deliberations, on November 1, 2005, the foreperson sent a note to the trial judge indicating that the jury had “reached a stalemate” because of a “problem juror” who had “made it very clear he does not want to be part of [the] process [and] is refusing to discuss or interact with the other jurors.” The “problem juror” separately wrote to the judge indicating that he had “doubt of which [he] feel[s] is beyond the limit of reasonable doubt,” and that deliberations were “not curing [his] doubt.” In his note, the “problem” juror identified himself as Juror No. 2.
Over Tarango's objection,1 the judge advised the jury to continue deliberating. The next day, November 2nd, the jury returned a verdict finding Tarango guilty of all seven felony counts as charged: burglary with the use of a deadly weapon, attempted robbery with the use of a deadly weapon, conspiracy to commit robbery with the use of a deadly weapon, three counts of battery with the use of a deadly weapon, and attempted murder with the use of a deadly weapon—all in violation of Nevada state law.
On November 3rd, the Las Vegas Review-Journal reported the guilty verdict in an article titled Man Convicted in 1999 Case . The article referenced “a juror who spoke to the Review-Journal .” Discussing the jury's deliberation process, the interviewed juror mentioned the hold-out juror: “the case was close to a hung jury because one juror seemed unwilling to convict following nearly two days of deliberations.”
On November 4th, prompted by the previous day's newspaper article, Juror No. 2 wrote a letter to the court referencing the article:
One week later, on November 11th, Juror No. 2 emailed Tarango's trial attorney, Marc Saggese, and attached a copy of his “Letter to the Judge.” The juror told Saggese that he felt “compelled to notify” Saggese of the letter. Saggese promptly filed a motion to dismiss all charges with prejudice or, alternatively, to grant a new trial on the ground of juror misconduct, arguing that Juror No. 2's communication indicated that the deliberation process had been tampered with in violation of Tarango's right to due process. Under Nevada law, juror misconduct refers to two categories of conduct: (1) intrinsic misconduct, that is, “conduct by jurors contrary to their instructions or oaths;” and (2) extrinsic misconduct, or “attempts by third parties to influence the jury process.”2 Meyer v. State , 119 Nev. 554, 80 P.3d 447, 453 (2003)
. Tarango alleged both forms of misconduct, arguing that (1) Juror No. 2 changed his vote under pressure, rather than based on admissible evidence of Tarango's guilt, because of (2) an improper third party influence.
In support of the motion, Saggese submitted a declaration indicating that, after the trial court read the juror notes into the record and while deliberations were ongoing, Saggese overheard Deputy District Attorney Marc DiGiacomo report to Detective James Vacarro over the phone that one juror, Juror No. 2, was holding out. Saggese thus indirectly corroborated Juror No. 2's stated belief that he was being targeted as a hold-out juror by introducing evidence that members of the Las Vegas police department both knew that Juror No. 2 favored acquittal and had knowledge of Juror No. 2's identity.3
The trial court held a full hearing on Tarango's motion the following month. Juror No. 2, Defense Attorney Saggese, Detective Vacarro, and Deputy D.A. DiGiacomo were all called to testify regarding their knowledge of the alleged events and communications in question. At the hearing, the court limited the questioning of Juror No. 2 pursuant to a provision of the Nevada Code of Evidence, Nev. Rev. Stat. § 50.065
, which prohibits the admission for any purpose of testimony, affidavits, or evidence of any statement by a juror indicating an effect on the jury's deliberative process. The court also relied on the Nevada Supreme Court case of Meyer v. State, which provides that “[u]pon an inquiry into the validity of a verdict ..., a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations, or to the effect of anything upon that or any other juror's mind.”4 80 P.3d at 454 (quoting Fed. R. Evid. 606(b) ). The trial court ultimately conducted all questioning of Juror No. 2 itself. Juror No. 2 testified as follows:
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