U.S. v. Armijo, s. 87-5100

• Decision Date: 25 November 1987
• Docket Number: Nos. 87-5100,87-5101,s. 87-5100
• Citation: 834 F.2d 132
• Parties: , 24 Fed. R. Evid. Serv. 43 UNITED STATES of America, Appellee, v. Jerry Joe ARMIJO, Appellant. UNITED STATES of America, Appellee, v. Scott David KISTNER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 132

834 F.2d 132

107 A.L.R.Fed. 499, 24 Fed. R. Evid. Serv. 43

UNITED STATES of America, Appellee, v. Jerry Joe ARMIJO, Appellant.

UNITED STATES of America, Appellee, v. Scott David KISTNER, Appellant.

Nos. 87-5100, 87-5101.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 2, 1987.

Decided Nov. 25, 1987.

Rehearing and Rehearing En Banc Denied in No. 87-5100 Dec.

29, 1987.

Rehearing and Rehearing En Banc Denied in No. 87-5101 Dec.

30, 1987.

Rick E. Mattox, Eagan, Minn., for appellant Armijo.

Thomas J. O'Connor, Minneapolis, Minn., for appellant Kistner.

Henry J. Shea, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

HENLEY, Senior Circuit Judge.

Jerry Joe Armijo and Scott David Kistner challenge their convictions for bringing illegal drugs into the Sandstone Federal Correctional Institution. Following trial by jury, appellants were convicted in district court ¹ of one count of aiding and abetting the attempt to distribute approximately 17.2 grams of methamphetamine, approximately 10 grams of marijuana, and approximately 52 tablets of valium in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and one count of conspiracy to attempt to distribute those substances in violation of 21 U.S.C. Sec. 846. Armijo was sentenced to four years of imprisonment and a five-year special parole term pursuant to 21 U.S.C. Sec. 841. Kistner was sentenced to six years imprisonment and a five-year special parole term. Both defendants' sentences were to run consecutively to any sentences of imprisonment they were currently serving.

Debra Briggs, a person said to be appellant Kistner's girlfriend, received a package at her home. Her mother, suspecting it contained illegal drugs, opened the package and called Lieutenant Jerry Brown, the head of internal security at Sandstone. Brown in turn contacted the Federal Bureau of Investigation, which sent an agent to speak with Debra and her mother. Debra told the agent that she had taken drugs into Sandstone on two prior occasions at Kistner's request. The agent determined by a field test that the contents of the package were amphetamines and marijuana. Debra agreed to cooperate with the FBI in making a controlled delivery of the drugs into the prison. The agent prepared a package with a small amount of the substance for Debra's use in making the delivery.

Debra then visited Kistner in prison. Upon leaving, she placed the package in a location she had used in the past, an intersection on prison property outside the prison walls. She dug a hole at the base of a stop sign, placed the brown paper bag containing the drugs in the hole, and covered it with snow as she had done on a previous delivery. She left only about one-half inch of the package exposed so that it would not be easily noticed, and then left the prison. Later that day Kistner called her and she told him where she had placed the drugs. Kistner in turn informed other inmates said to be involved in the scheme.

Lieutenant Brown observed the intersection until 6:00 p.m. when he removed the bag. He replaced it the next day early in the morning and covered it with snow. At about 9:20 that morning, Brown observed Armijo driving a machine equipped with a front end loader directly toward the intersection. Armijo stopped, walked to the stop sign, picked up the bag, placed it in his coat pocket, walked back to the loader and reentered it. When the loader started to move, Brown radioed the Sandstone landscape foreman to stop the vehicle. The foreman stopped the loader and searched it. He found the bag tucked up under the dashboard in the wiring.

Following close of evidence and soon after jury deliberations commenced, one of the jurors was involved in a car accident on her way to the courthouse. She suffered two cracked ribs and multiple bruises and contusions. According to her doctor, she would have been unable to resume jury service until the following week at the earliest. Armijo and Kistner moved for a mistrial based on the juror's absence, but the court denied their motions. The trial judge determined that the juror should be excused for just cause and that pursuant to Fed.R.Crim.P. 23(b) a verdict could be returned by the remaining eleven jurors.

Armijo claims that the trial judge's failure to sequester the jury, when coupled with the excuse for cause of one of the jurors after deliberations had begun, violated his right to due process. Kistner makes the more modest assertion that the trial judge abused his discretion in refusing to grant a mistrial instead of allowing the remaining eleven jurors to render a verdict.

Fed.R.Crim.P. 23(b) provides: "Even absent ... stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors." The constitutionality of a jury consisting of fewer than twelve members was established in Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), and it follows that the Rule's provision for an eleven-person jury when one juror has been excused for cause is constitutionally permissible. United States v. Smith, 789 F.2d 196, 205 (3d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986); United States v. Stratton, 779 F.2d 820, 831 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986). With regard to the lack of sequestration, Armijo points to no specific source of a right to have the jury sequestered in order to avoid an eleven-member jury, and we are not persuaded that Armijo's contention that his right to due process was violated has merit.

Kistner's claim that the trial court abused its discretion in permitting an eleven-juror verdict is closer to the mark. The Advisory Committee Notes on the 1983 amendment to Rule 23(b) providing for an eleven-person jury seem to indicate that the amendment was designed to avoid mistrials after lengthy trials:

The amendment provides that if a juror is excused after the jury has retired to consider its verdict, it is within the discretion of the court whether to declare a mistrial or to permit deliberations to continue with 11 jurors. If the trial has been brief and not much would be lost by retrial, the court might well conclude that the unusual step of allowing a jury verdict by less than 12 jurors absent stipulation should not be taken. On the other hand, if the trial has been protracted the court is much more likely to opt for continuing with the remaining 11 jurors.

Appellants contend that the five-day trial in their case was not the type of protracted trial contemplated by the drafters of Rule 23(b). Although we have some reservation about the Rule's application in this case, we do not conclude that the district judge's refusal to declare a mistrial was clearly erroneous. We are in accord with the statement of the Advisory Committee that allowing a jury to proceed to verdict with fewer than twelve members absent a stipulation by the parties constitutes...