U.S. v. Bolinger, s. 84-3528

• Decision Date: 08 February 1988
• Docket Number: 84-3751 and 84-3860,Nos. 84-3528,s. 84-3528
• Citation: 837 F.2d 436
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Robert BOLINGER, Robert Jerome McTeer, Bruce Hayes Munro, Juan Carlos de la Fuente, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos de la FUENTE, Defendant-Appellant (Two Cases).
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 436

837 F.2d 436

UNITED STATES of America, Plaintiff-Appellee, v. Steven Robert BOLINGER, Robert Jerome McTeer, Bruce Hayes

Munro, Juan Carlos de la Fuente, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos de la FUENTE, Defendant-Appellant (Two Cases).

Nos. 84-3528, 84-3751 and 84-3860.

United States Court of Appeals, Eleventh Circuit.

Feb. 8, 1988.

John C. Wilkins, III, Bartow, Fla., for Bolinger.

Elizabeth L. White, Jacksonville, Fla., for McTeer.

Dan R. Warren, Daytona Beach, Fla., for Munro.

Bruce Hinshelwood, Asst. U.S. Atty., Orlando, Fla., for U.S.

Bernard H. Dempsey, Jr., Manuel Socias, Orlando, Fla., Mark J. Kadish, Kadish and Kadish, Alan J. Baverman, Atlanta, Ga., for de la Fuente.

Appeals from the United States District Court for the Middle District of Florida.

ON PETITION FOR REHEARING

(Opinion August 15, 1986, 11 Cir., 796 F.2d 1394)

Before RONEY and CLARK, Circuit Judges, and FAIRCHILD ^*, Senior Circuit Judge.

PER CURIAM:

Appellant Bolinger's petition for rehearing is DENIED. In light of allegations contained in appellant de la Fuente's petition for rehearing, we hereby delete section III A. of our prior opinion, 796 F.2d 1394, 1400-01, and insert in its place the following:

III. ANALYSIS

A. Juror Misconduct (de la Fuente)

Appellant de la Fuente raises two distinct claims of juror misconduct. First, that the evidence of juror Hunter's actual bias against de la Fuente requires that we reverse the denial of the motion for a new trial. Second, that juror Hunter's proliferation of extrinsic evidence to several other jurors was so inherently prejudicial that the district court erred in requiring a showing of actual prejudice and should have presumed prejudice to follow from the misconduct. We reject each of these claims.

(1) Juror Bias.

The Sixth Amendment guarantees the right to trial by an impartial jury. An impartial jury is "capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). A defendant must be given a new trial where he or she " 'demonstrate[s] that a juror failed to answer honestly a material question on voir dire and then further show[s] that a correct response would have provided a valid basis for cause.' " United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir.1984) (quoting McDonough Power Eqpt., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984)). De la Fuente claims that juror Hunter expressed an opinion as to de la Fuente's guilt before all of the evidence was presented. In addition, it is claimed that Hunter lied when asked if he had been exposed to publicity and other extrinsic information relevant to this case. Because we find that de la Fuente waived his juror bias claim by failing to bring evidence of Hunter's misconduct to the court's attention before the jury rendered its verdict, we need not discuss the merits of this claim.

De la Fuente's attorney first learned of juror Hunter's bias when he received a telephone call from Andrew Harris, Jr., on Saturday, June 10, 1984. Record, Vol. 68 at 152-53, 155. Harris told the attorney that Hunter had discussed the case with Harris' aunt (Hunter's neighbor) during the trial and Hunter had stated his belief that de la Fuente was guilty. Saturday, June 10, fell in the midst of the jury's deliberations. The jury did not return its verdict until Wednesday, June 13. Yet, the attorney did not notify the court of possible juror taint until he filed de la Fuente's motion for new trial on June 28, 1984.

Our cases teach that "a defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct." United States v. Jones, 597 F.2d 485, 588 n. 3 (5th Cir.1979). ¹ In Jones, the court explained that a motion for new trial based on juror misconduct is a form of new trial motion for newly discovered evidence. Id. at 488. As such, the motion must be supported by proof that the evidence of misconduct was not discovered until after the verdict was returned. In the particular context of juror misconduct, this rule serves to ensure that the trial court is given every available opportunity to attempt to salvage the trial by ridding the jury of prejudicial influences. Thus, where the defendant or defense counsel knows of juror misconduct or bias before the verdict is returned but fails to share this knowledge with the court until after the verdict is announced, the misconduct may not be raised as a ground for a new trial. Id.; see also United States v. Edwards, 696 F.2d 1277, 1282 (11th Cir.1983), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1984) (no abuse of discretion in refusing to interrogate jury about alleged juror misconduct where defendant waited to hear the verdict before contesting jury's impartiality); United States v. Dean, 667 F.2d 729, 732-34 (8th Cir.1982) (en banc) (untimely notification of juror misconduct waives right to new trial even where actual prejudice can be shown).

Although the June 10 telephone call did not disclose the full extent of Hunter's misconduct, ² enough information was relayed that counsel should have contacted the district court for instructions while counsel continued his investigation. It is up to the court, and not the parties, to determine the appropriate response when evidence of juror misconduct is discovered. See United States v. Caldwell, 776 F.2d 989, 997 (11th Cir.1985); United States v. Carrodeguas, 747 F.2d 1390, 1395 (11th Cir.1984). De la Fuente's decision to gamble on the jury rather than inform the court of the problem in time to allow the court to determine if corrective action was possible prior to verdict is fatal to his claims regarding juror Hunter. We therefore affirm the denial of de la Fuente's motion for a new trial on the grounds of juror bias.

(2) Extrinsic evidence.

Juror exposure to extrinsic evidence mandates a new trial only if the evidence poses a reasonable possibility of prejudice to the defendant. Perkins, 748 F.2d at 1533. The government bears the burden of rebutting the presumption of prejudice which attaches when it has been shown that the jury was exposed to extrinsic evidence. Id. ³

De la Fuente offered sufficient evidence of jury contamination to justify employing the rebuttable presumption of prejudice. At the post-trial hearing into juror misconduct, juror Hodges testified that juror Hunter referred to a newspaper article in the presence of approximately nine other jurors. Hodges was told that the article reported a raid on de la Fuente's home or place of business during which several hundred thousand dollars had been found in a mattress. Hodges testified that Hunter repeated the statement several times and that, each time, other jurors told him not to discuss the article. Seven other jurors testified that Hunter mentioned the article, although they agreed that Hunter's comments were cut short by their protests.

The district court found that only juror Hodges overheard Hunter's comments regarding the substance of the newspaper articles. The other jurors heard only Hunter's reference to the article itself, and they testified that the article was not discussed during the jury's deliberations. The district court denied de la Fuente's two motions for new trial on the ground that the evidence against de la Fuente was so overwhelming that the introduction of extrinsic evidence could not have been...