U.S. v. Armendariz

• Decision Date: 28 December 1990
• Docket Number: 90-3160,Nos. 90-3140,s. 90-3140
• Citation: 922 F.2d 602
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar ARMENDARIZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gabriel AGUIRRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 602

922 F.2d 602

UNITED STATES of America, Plaintiff-Appellee, v. Oscar ARMENDARIZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gabriel AGUIRRE, Defendant-Appellant.

Nos. 90-3140, 90-3160.

United States Court of Appeals, Tenth Circuit.

Dec. 28, 1990.

Rehearing Denied in No. 90-3160

March 18, 1991.

John J. Ambrosio, Topeka, Kan., for defendant-appellant Oscar Armendariz.

Joseph D. Johnson, Topeka, Kan. (Richard A. Winterbottom of Michael L. Stout & Associates, Albuquerque, N.M., with him on the briefs), for defendant-appellant Gabriel Aguirre.

Kurt J. Shernuk, Asst. U.S. Atty. (Lee Thompson, U.S. Atty. and Tanya J. Treadway, Asst. U.S. Atty., with him on the brief), Kansas City, Kan., for plaintiff-appellee the U.S.

Before SEYMOUR, MOORE and BRORBY, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

In this consolidated appeal, codefendants Oscar Armendariz and Gabriel Aguirre assert they were denied the right to a fair trial and an impartial jury under the Sixth Amendment when the district court refused to grant a mistrial after a juror was improperly contacted by a third party. Codefendants also urge error in the district court's failure to suppress the contents of conversations intercepted by state court wiretap authorization. In addition, Mr. Aguirre separately contends the district court abused its discretion in denying his motion for severance. We affirm.

I. Background

Codefendants were charged with conspiracy to distribute marijuana and Mr. Aguirre with an additional count of use of a telephone to facilitate the conspiracy based on evidence gathered from wiretaps placed on the telephone in Mr. Armendariz's residence, his place of business, and the home of a close associate. The information gathered from the taped conversations was utilized to obtain warrants to search codefendants' residences. The search of Mr. Armendariz's rural home in Manhattan, Kansas, produced eight one-pound bags of marijuana, $134,770 in cash, a Motorola pager, and drug paraphernalia; and that of Mr. Aguirre's residence in Deming, New Mexico, uncovered sixty pounds of marijuana in an abandoned car on the property and firearms which were taken from the house. In addition, the government negotiated a plea agreement with Randy Thomas, identified in the intercepted conversations as Mr. Armendariz's customer in California. Mr. Thomas agreed to testify against Mr. Armendariz.

During codefendants' second trial, ¹ government witnesses testified on the procedure followed to intercept calls to the three telephone lines; the monitoring of the calls; the searches of the residences; and the results of laboratory testing of the substances found. The government's key witness, Randy Thomas, explained how he received thirty pounds of marijuana which he repackaged into one pound bags and then arranged to send payment of $25,000 in cash to Mr. Armendariz. In one taped conversation introduced into evidence, the jury heard Mr. Thomas tell Mr. Armendariz that some of the marijuana sent had molded while in his storage shed. In his defense, witnesses for Mr. Aguirre controverted testimony on the ownership of his residence in Deming. ²

On the morning of the third day of trial at the conclusion of the presentation of this evidence, one of the jurors, Mr. Lonnie Funk, told the courtroom deputy that he had received a telephone call from a person identifying himself as Kenny Thomas, Randy's brother. The courtroom deputy relayed the story to the court.

In chambers, the court assembled counsel and informed them that, in light of this unusual development, the court would question Mr. Funk to ascertain whether the conversation had any effect on his ability to serve as a juror. In the ensuing proceeding in chambers, Mr. Funk explained how he had first received a call from "Bill at radio station KMKF in Manhattan, Kansas." Bill told Mr. Funk his name had been entered as a prank in a drawing for $1,000 free work on a car, and he had won. After arranging to meet Bill, Mr. Funk asked his wife to call the radio station and verify Bill's story. Told that no Bill worked at the station, Mrs. Funk called her husband, who had stayed in Wichita during the trial, and told him what she had learned. Mr. Funk then called the number Bill left and told him he didn't appreciate this way of doing business and not to bother him again. Mr. Funk then testified that the following night, the same person called, apologizing for the charades and identifying himself as Kenny Thomas. "Does Kenny Thomas ring a bell for you?" the caller asked. When Mr. Funk said, no, the caller reminded him that his brother, Randy, was a witness in the trial. Mr. Funk continued:

And right away that clammed me up. I didn't know what to say. And I--he said, "I need to meet you." And I says, "Well, I can't, I'm a jury member, and I'm just not supposed to talk about this case to anybody." So he says, "Well, I will make it well worth your while." He says, "No matter what I do, you won't meet me?" And I says, "No, I can't," and I hung up on him. And I went to bed last night thinking about it, and I dreamt about it and everything else. So I don't know.

Mr. Funk told the court he had no further contact with the caller and had no idea what he wanted. ³ Counsel for Mr. Armendariz asked Mr. Funk if he had mentioned the incident to other members of the jury. Since four other jurors, Mr. Funk knew, had overheard his conversation with the courtroom deputy, he then elaborated for them, offering that he couldn't "figure it out whether it's for one side or the other side. You know, it just doesn't make sense." When defense counsel again expressed his concern whether Mr. Funk still had an open mind, Mr. Funk answered that he felt he had the sense "to look at the evidence and the testimony and make our decision according to that."

The court then called individually the four jurors to whom the incident was recounted. In the course of the subsequent questioning, counsel for the government and the defense agreed with the court that jurors should be asked what they specifically heard and what effect the conversation had on their ability to remain impartial. Although each juror stated the incident had no consequence, counsel for Mr. Armendariz moved for a mistrial, urging that the credibility of the government's key witness, Randy Thomas, was affected. ⁴ The court denied the motion but proceeded to summon each remaining juror to determine what influence the contact might have had. At the close of the questioning, counsel for both defendants again moved for a mistrial. The court overruled the motions. ⁵

Upon reconvening the trial, the court instructed the jury:

Members of the jury, a matter has been raised with each of you this morning regarding the possible prejudicial effect of an outside communication. Your deliberation should be upon the evidence in this case, ignoring any information which may have come to your attention from outside sources including discussions with other jurors. You are instructed not to speculate about any matter raised from any outside source. It must have no influence whatever in your deliberations. If you cannot follow this instruction or do not believe you can avoid all speculation and discussion concerning outside matters in your verdict on this matter, then you must tell the Court at this time. Does anyone want to tell me they cannot follow that instruction?

Receiving no response, the court ordered final arguments and then instructed the jury. Subsequently, the jury found Mr. Armendariz guilty on Count I and Mr. Aguirre guilty on Counts I and II. Mr. Armendariz was sentenced to five years in prison on Count I and a five-year period of supervised release. Mr. Aguirre received a four-year sentence on both counts to run concurrently and a two-year period of supervised release.

II. Improper Juror Contact

Arguing the district court abused its discretion in denying their motion for a mistrial, codefendants urge that an outside contact with a juror coupled with the circumstances of the communication is per se ground for mistrial. This theory is predicated on the assertion that a juror's testimony about his ability to remain impartial is inherently suspect. No juror, codefendants assert, can resist the desire to please the court even in the face of certain misgivings. ⁶

To overcome the presumptively prejudicial impact of any unauthorized private communication with a juror in a criminal case, under Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451-52, 98 L.Ed. 654 (1954), the trial court "should not decide and take final action ex parte ... but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." The government bears a heavy burden to establish that the communication was harmless. Id. at 229, 74 S.Ct. at 451. The Court subsequently clarified the nature of that burden and rejected the notion that the law must impute bias to a juror's answers. Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). ⁷ See also United States v. Zelinka, 862 F.2d 92, 95 (6th Cir.1988); United States v. Butler, 822 F.2d 1191, 1197 (D.C.Cir.1987). Once the government rebuts the presumption of prejudice in a Remmer hearing, the burden then shifts to defendant to show actual prejudice. See United States v. Day, 830 F.2d 1099, 1105 (10th Cir.1987).

In this case, the district court's questioning of the individual members of the jury, supplemented by suggestions from counsel, fulfilled the Remmer hearing requirement. Nevertheless, codefendants argue the court's style of questioning intimidated jurors into answering what the court wanted to hear. ⁸ Although a form of questioning that would permit each juror the opportunity to offer evidence in his own words would have been preferable, we cannot say that the court's questioning in this...