U.S. v. Behler, 92-3956

• Decision Date: 24 January 1994
• Docket Number: No. 92-3956,92-3956
• Citation: 14 F.3d 1264
• Parties: UNITED STATES of America, Appellee, v. John D. BEHLER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1264

14 F.3d 1264

UNITED STATES of America, Appellee, v. John D. BEHLER, Appellant.

No. 92-3956.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1993.

Decided Jan. 24, 1994.

James R. Mowbray, Lincoln, NE, argued for appellant.

Paul D. Boeshart, Lincoln, NE, argued for appellee.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

John D. Behler appeals his convictions and sentences for drug trafficking violations. He argues that the district court ¹ mishandled allegations of jury tampering, improperly failed to suppress his confession, and improperly answered a question from the jury during deliberations; that there was insufficient evidence to support his convictions on two counts; that his sentences should be vacated because the district court sentenced him under the wrong version of the United States Sentencing Guidelines; and that the district court erred in determining the quantity of methamphetamine and his role in the offense, in finding that he obstructed justice, and in relying on ex parte information from a probation officer. We affirm his convictions but vacate his sentences on Counts I, III, and IV and remand for resentencing on those counts.

I.

From 1984 to 1989, Behler lived on an acreage in Dunbar, Nebraska. Linda Wiegert lived on the acreage with him from 1984 to 1987. She testified at trial that during that time Behler made numerous trips to Colorado to purchase methamphetamine from a person named Tom McRea. She further testified that he always kept a .44 magnum handgun with him at home and on the trips.

Nora Lysenko Houston moved in with Behler sometime in 1987, after Ms. Wiegert moved out. Ms. Houston also testified at trial that Behler made numerous trips to Colorado to buy methamphetamine from Tom McRea. She too testified that Behler always carried a handgun with him.

In 1989, the Nebraska State Patrol began monitoring Behler's telephone calls. On May 15, 1989, they intercepted a call from Joseph Hiykel about a drug transaction that was going to occur at Behler's residence that day. They maintained surveillance on Behler's acreage. Hiykel drove to Behler's acreage and stayed about 30 minutes. Law enforcement officers stopped and arrested Hiykel after he left the acreage. They found a package of methamphetamine in Hiykel's possession. Hiykel testified at trial that he purchased the methamphetamine from Behler.

Law enforcement officers arrested Behler at his acreage minutes after they arrested Hiykel. They searched the acreage pursuant to a search warrant they had obtained earlier and found, among other things, a plastic bottle containing inositol, a loaded .44 magnum handgun, and a small amount of methamphetamine. Behler was placed in the county jail. Later that evening, law enforcement officers interviewed Behler, and after being advised of his Miranda rights, he confessed to his involvement in substantial drug trafficking activity.

A federal grand jury indicted Behler on four drug-trafficking counts. Count I charged Behler with conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sec. 846. Count II charged Behler with use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1). Count III charged Behler with use of a telephone in furtherance of a drug felony in violation of 21 U.S.C. Sec. 843(b). Count IV charged Behler with distribution of methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). He stood trial on all counts August 12-18, 1992. The jury returned a verdict of guilty on all counts August 19, 1992.

The district court sentenced Behler on Counts I, III, and IV to 168 months' imprisonment for each count, to be served concurrently. The district court sentenced Behler on Count II to 60 months' imprisonment, to be served consecutively to the sentence on the other counts. Behler filed this appeal.

II.

Behler first contends that his convictions should be reversed because the district court mishandled incidents of potential jury tampering. On the fourth day of trial, the district judge informed counsel for both parties that two jurors had reported such incidents. One juror reported receiving a telephone call the previous evening from an unidentified caller asking her if she was on the jury, to which she responded that she was not and terminated the call. Another juror reported someone had knocked on his window late at night a couple of days earlier.

The court and counsel questioned both of the jurors individually in the district judge's chambers. Both jurors indicated that they believed the incidents were related to their jury service, but both stated that they could continue to keep an open mind and reach a fair verdict. One of the jurors told the court that the other members of the jury were aware of the incidents and many of them also were concerned.

The court asked the parties for suggestions on further proceedings. Behler's counsel suggested that the district judge talk to the entire jury without either side being present and report back to counsel if he determined there was any problem with prejudice or bias. Behler's counsel thought the jurors might be more open about their feelings without the parties present. The court and the government agreed. Behler's counsel stated that if the judge did not detect any bias or prejudice, then Behler would "let it be at that and end the inquiry." (Tr. at 568).

The district judge's conversation with the jury was reported by the court reporter. The district judge told the jury that he was virtually certain that Behler did not personally make the telephone call or knock on the window. The judge then asked the jury whether they were fearful that anything would happen to them or their families and if they would be influenced by these incidents. Two jurors responded that they were not worried, but one juror voiced concern that defendant and defense counsel had access to their names. No other jurors responded. The judge agreed to collect all juror information sheets from both parties and to refer to the jurors by number instead of name for the remainder of the trial. The judge then asked the jury a final time whether they were concerned that their "ability to decide this case uninfluenced one way or the other had been jeopardized?" All jurors indicated they were not concerned. (Tr. at 569-79).

The district judge then reported to the parties that he was confident the trial could proceed because there was no indication the jurors' decisions in this case would be affected by the incidents. The district judge then asked the parties to return all juror information. The trial resumed without further objection.

Behler asserts on appeal that these incidents of extrajudicial contact were prejudicial and that he should receive a new trial. In Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954), the Supreme Court stated:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

The presumption of prejudice "may be rebutted, where ... the proper reaction of the court establishes that the defendant has not been prejudiced." United States v. Rowley, 975 F.2d 1357, 1363 (8th Cir.1992) (citing Remmer, 347 U.S. at 229, 74 S.Ct. at 451). The district court "should determine the circumstances, the impact [of the improper contact] upon the juror[s], and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." Remmer, 347 U.S. at 230, 74 S.Ct. at 451 (emphasis added). Behler asserts that the district court's hearing with the jury did not comply with the requirements of Remmer.

Behler failed to object to the procedures used by the district court or to request a mistrial after the district court spoke with the jurors. Accordingly, Behler is entitled to a new trial only if the district court committed plain error resulting in a miscarriage of justice. United States v. Schau, 1 F.3d 729 (8th Cir.1993). We find no plain error and no miscarriage of justice in this case.

Behler waived his right to participate in the questioning of the entire jury by requesting that neither of the parties be included. See United States v. Gagnon, 470 U.S. 522, 527-29, 105 S.Ct. 1482, 1484-86, 84 L.Ed.2d 486 (1985) (per curiam). Behler believed it would be to his benefit if neither of the parties was involved, anticipating that the jurors would be more candid if the court performed the inquiry alone. The district court substantially complied with the Remmer requirements to determine if there was any prejudice because it permitted Behler to participate, but Behler declined. While the trial judge generally should not conduct any part of the hearing ex parte, United States v. Butler, 822 F.2d 1191, 1196 (D.C.Cir.1987) (citing Remmer, 347 U.S. at 229-30, 74 S.Ct. at 450-51), ex parte hearings have been upheld where the circumstances warrant and fundamental fairness is not sacrificed. See, e.g., Gagnon, 470 U.S. at 527, 105 S.Ct. at 1484 (approving procedure where only one of four defendants present at examination of juror when other three did not request to be present); United States v. Aiello, 771 F.2d 621, 630 (2d Cir.1985) (approving court's ex parte interview of jurors without court reporter present where the court immediately informed counsel after the questioning); United States v. Buchanan, 633 F.2d 423, 427 (5th Cir.1980) (approving procedure where district judge, court reporter, and law clerks were only parties present for jury questioning), cert. denied, 451 U.S. 912, ...