U.S. v. Cantu
| Decision Date | 03 February 1999 |
| Docket Number | No. 97-40930,97-40930 |
| Citation | 167 F.3d 198 |
| Parties | 51 Fed. R. Evid. Serv. 476 UNITED STATES of America, Plaintiff-Appellee, v. Javier Lopez CANTU, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kathlyn Giannaula Snyder, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.
Chris Flood, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before SMITH, DUHE and WIENER, Circuit Judges.
Defendant-Appellant Javier Lopez Cantu appeals his convictions for (1) conspiracy to possess 1,000 kilograms or more of marijuana with intent to distribute and (2) conspiracy to launder drug proceeds. He further challenges the jury's verdict of forfeiture of property under 21 U.S.C. § 853. For the reasons set forth below, we affirm both the convictions and the forfeiture verdict.
In April 1995, Mark Miller was stopped by police for a routine traffic violation about 200 miles outside of Houston. When the police discovered that Miller was transporting approximately 200 pounds of marijuana, he agreed to cooperate with them.
The police disabled Miller's vehicle and instructed him to call the persons for whom he was delivering the marijuana and ask them for assistance. He did so, and approximately four hours later, Fabian Cavazos and the defendant-appellant's brother, Roy Cantu, arrived driving separate vehicles. The officers observed the two men transfer the marijuana into the newly-arrived vehicles, then arrested them. After Miller, Cavazos, and Roy Cantu identified defendant-appellant Cantu as the leader of the marijuana-distribution organization for which they worked, officials investigated and eventually arrested him. The government's evidence against Cantu at trial consisted largely of (1) testimony from some of his employees who had already pleaded guilty to narcotics offenses regarding Cantu's leadership role in a narcotics ring and (2) documentary evidence, such as phone records and ownership records of vehicles and residences, linking Cantu to the marijuana organization.
The jury convicted Cantu of the conspiracy charges, but acquitted him of the charge of possession of marijuana with intent to distribute. The jury also entered a verdict of forfeiture as to eleven properties.
On the morning of the second day of jury deliberations during the guilt-innocence phase of the trial, but before the jury had begun that day's deliberations, a juror named James Almaraz reported to the court that the night before he had been approached by Rene De La Rosa regarding the trial. With the attorneys for both parties present, the district court held a hearing in chambers. In response to questioning by the court, Almaraz reported that he was approached by De La Rosa who stated that he was "real good friends with [Cantu] and he knows what [Cantu] does, but he just told me that he would appreciate if I would testify [sic] that [Cantu] was innocent." Almaraz also informed the court that one of his girlfriend's coworkers had passed a message to him through his girlfriend that, if he voted to acquit Cantu, the coworker would "give [him] some money." Almaraz indicated that he had not been approached prior to the night before he reported the incidents to the court and had not talked to anyone about what had occurred.
The district court allowed counsel for both parties to question Almaraz and then asked whether they would consent to the removal of Almaraz from the jury. Even though Cantu's attorney stated that he was not willing to consent to Almaraz's removal until he spoke to his client, the district court dismissed Almaraz immediately and then instructed the remaining jurors not to consider the excusal of the twelfth juror for any purpose.
After the jury returned its guilt-innocence verdicts and while it was deliberating on the forfeiture issue, Cantu requested permission to interview the remaining eleven jurors to determine whether any of them had been approached by anyone or whether any of them had heard of the incidents involving Almaraz. The district court denied this request. Cantu later filed a motion and supporting memorandum, seeking meaningful access to the jurors. In these filings, Cantu's counsel asserted that he had learned from an unnamed source that one of the remaining jurors had been told that Cantu had been convicted of a drug trafficking offense on at least one prior occasion. Cantu repeated this assertion in the memorandum he submitted in support of his motion for a new trial. The district court denied both motions.
In addition to challenging the district court's handling of the failed jury tampering incident, Cantu asserts for the first time on appeal that the district court (1) through its questioning of particular witnesses, improperly created the impression that the court was partial to the government; (2) erred in admitting hearsay evidence; and (3) erred in permitting the eleven members of the jury who remained after the dismissal of Almaraz to render a verdict on the forfeiture issue, rather than dismissing the jury and granting Cantu an entirely new trial before a new jury, limited to forfeiture.
We review a district court's determination that the jury was not improperly tainted by extrinsic evidence under the clearly erroneous standard, 1 and its choice of methods to investigate the possibility of extrinsic taint for abuse of discretion. 2 We also review a district court's denial of a motion for a new trial for abuse of discretion. 3
Cantu asserts that the district court erred in (1) failing to conduct an evidentiary hearing to investigate whether the remaining jurors had been exposed to extrinsic influence; (2) refusing to grant Cantu access to the remaining jurors; and (3) refusing to grant Cantu's motion for a new trial.
"[T]he remedy for allegations of juror impartiality is a hearing in which the defendant has the opportunity to prove actual bias." 4 The district court is not, however, required to conduct a "full-blown evidentiary hearing in every instance in which an outside influence is brought to bear on a petit jury." 5 Here, in the presence of defense counsel and the prosecutor, the district court questioned Juror Almaraz in chambers regarding the two attempted tampering incidents that he had reported. Counsel for both parties were present throughout the hearing and were allowed to examine Almaraz. In light of his responses, the court determined that, although Almaraz should be dismissed, it was not necessary to voir dire the remaining jurors because Almaraz had told no other member of the jury about the incidents, and no other juror had reported any such incident. 6
The hearing conducted by the district court was adequate to determine whether it was necessary to interview the remaining jurors. Almaraz indicated that the two incidents occurred the night before he reported them to the court and that he had not told anyone else about what had occurred. In light of these answers and in view of the potential disruptive effect of questioning all remaining jurors, 7 the district court did not abuse its discretion in the way it handled the allegations of outside influence on the jury or in denying Cantu's motion for a new trial. 8
Because Cantu did not object contemporaneously to the instances of witness interrogation of which he now complains, we review the district court's questioning of witnesses for plain error. 9 "Plain error occurs when the error is so obvious and substantial that failure to notice and correct it would affect the fairness, integrity, or public reputation of judicial proceedings and would result in manifest injustice." 10
That "[a] federal judge may comment on the evidence, question witnesses, bring out facts not yet adduced, and maintain the pace of the trial by interrupting or setting time limits on counsel" is settled beyond peradventure. 11 In so doing, however, a judge cannot appear to be partial to the prosecution. 12 When considering whether a court appeared impartial, we must review the entire record. 13 Our task is to determine whether the judge's behavior was "so prejudicial that it denied the defendant a fair, as opposed to a perfect, trial." 14 "To rise to the level of a constitutional error, the district judge's actions, viewed as a whole, must amount to an intervention that could have led the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor." 15
Cantu asserts that reversal of his conviction is required because the district court's questioning "was pervasive, often leading, and designed to rehabilitate the credibility of government witnesses or undermine counsel for Defendant's questioning on cross-examination." Cantu rests his argument primarily on United States v. Saenz, 16 a case in which we held that the same district court's questioning of witnesses created an appearance that the court was partial to the prosecution and thereby denied the defendant a fair trial. 17
In reaching our holding in Saenz, we emphasized that such a result obtained only because of the "unusual combination of circumstances" the case presented. 18 Most importantly, the government's case in Saenz rested almost entirely on the testimony of a codefendant who was cooperating with the prosecution. 19 As a result, the outcome of the case hinged on whether the jury believed the testimony of the government's witness or that of the defendant, who--unlike Cantu--testified in his own defense. In light of the crucial nature of the testimony of these two witnesses and the scant evidence supporting conviction (other than the cooperating witness' testimony), we held that the district court...
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