U.S. v. Cousins

• Decision Date: 19 April 1988
• Docket Number: No. 87-3065,87-3065
• Citation: 842 F.2d 1245
• Parties: 25 Fed. R. Evid. Serv. 673 UNITED STATES of America, Plaintiff-Appellee, v. William Patrick COUSINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1245

842 F.2d 1245

25 Fed. R. Evid. Serv. 673

UNITED STATES of America, Plaintiff-Appellee, v. William Patrick COUSINS, Defendant-Appellant.

No. 87-3065.

United States Court of Appeals, Eleventh Circuit.

April 19, 1988.

W. Dexter Douglass, Douglass, Cooper & Coppins, Tallahassee, Fla., Lamar Winegart, III, Edward M. Booth, Sr., Booth & Arnold, P.A., Jacksonville, Fla., for defendant-appellant.

Paul Alan Sprowls, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, and MARKEY ^*, Chief Circuit Judge.

EDMONDSON, Circuit Judge:

William P. Cousins was convicted of conspiracy to import cocaine and income tax evasion. ¹ Among other things, Cousins contends that reversible error was committed during his trial when: 1) the district court denied his motion for a mistrial after a local newspaper reported that a member of Cousins' family contacted members of the jury; and 2) rebuttal testimony concerning Cousins' prior drug use was admitted over his objection. We affirm the convictions. ²

During the prosecution's case-in-chief, the jury informed the trial judge that a person had approached several jurors in an elevator outside the courtroom and had begun asking questions, such as, "He [referring to Cousins] is guilty, isn't he," or words to that effect. ³ The jurors then explained that they had told the speaker that they were not supposed to discuss the trial; but the person continued to ask questions until the jurors walked away. The trial judge asked whether the person had identified himself in "any manner, whatsoever as to who he was or if he had any relationship to this case whatsoever?" The jury spokesman responded, "No." ⁴

Cousins' attorney requested a bench conference and informed the district court that the person who approached the jury may have been Cousins' eighteen-year old nephew. Defense counsel also expressed concern that the jurors might react unfavorably if they believed that Cousins had arranged the incident in order to obtain a mistrial. After a brief recess, Cousins stated he wished additional time to consider whether he would move for a mistrial.

After the district court discussed with counsel how best to determine whether any jurors were prejudiced by the incident, the following questions were asked of the jurors:

THE COURT: Do any of you at this time, feel that the incident you have described and told us in open court was prompted or instigated by either the government or the defendant? Any of you feel that way?

JURY COLLECTIVELY: No.

THE COURT: Secondly, will the incident in any manner enter into or affect your consideration of the merits of this case?

JURY COLLECTIVELY: No.

THE COURT: Thank you.

Satisfied with these responses, the district court permitted the trial to proceed. Prior to the evening recess, the jurors were instructed "not to discuss this case or anything about this case amongst yourselves or with anyone else. Please do not read, listen to, or watch any news accounts."

The next morning Cousins moved for a mistrial based upon the previous day's events. Cousins also expressed concern over a report on the jury-encounter incident appearing in that morning's local newspaper; the newspaper attributed the remarks to Cousins' nephew. Defense counsel, however, requested no poll of the jurors about whether they had seen the article. The district court, on the basis of the answers the jurors previously provided, denied a mistrial. Cousins contends that the district court erred when it denied his motion for a mistrial.

Preliminarily, we note that the decision to grant a mistrial based upon allegations that a jury has been unfairly prejudiced by exposure to extraneous information or outside influences is largely within the discretion of the district court and will not be reversed absent a showing that the trial judge abused his discretion. United States v. Khoury, 539 F.2d 441, 443 (5th Cir.1976). ⁵ Moreover, when a defendant makes a "colorable showing" that jurors have been exposed to extrinsic influences, the district court,

in the exercise of its discretion, must make sufficient inquiries or conduct a hearing to determine whether the influence was prejudicial. However, there is no per se rule requiring an inquiry in every instance. The duty to investigate arises only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality. In other words, there must be something more than mere speculation.

United States v. Barshov, 733 F.2d 842, 851 (11th Cir.1984) (citations omitted); Khoury, 539 F.2d at 443 (district court's "discretion extends to the type of investigation required" to ascertain whether jury is prejudiced); see also United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir.1987) ("The trial court has broad discretion as to how to proceed when confronted with an allegation of jury misconduct, including discretion with regard to the initial decision as to whether to interrogate jurors.").

Cousins has failed to demonstrate that any of the jurors were aware that Cousins' nephew was involved in the incident. ⁶ 6] When questioned by the district court on the day of the contact, the jurors denied any knowledge of the person's identity. The jurors also indicated that the incident would not affect their consideration of the merits of the case.

In this case, on the evening prior to the appearance of the challenged newspaper article, the district court specifically instructed the jury not to "read, listen or watch" any news accounts pertaining to the trial. Cf. United States v. Herring, 568 F.2d 1099, 1105 (5th Cir.1978) (reversing conviction where judges' previous instructions concerning trial publicity were inadequate). In addition, the trial transcript reflects that throughout the course of Cousins' trial, the district court admonished the jury not to read any newspaper account of the case. Nowhere does the record indicate that the jury failed to heed these instructions. We will, therefore, presume that the jurors followed the district court's instructions and did not read the newspaper article. See generally United States v. Phelps, 733 F.2d 1464, 1473 (11th Cir.1984) ("The law presumes that the jury will follow the court's instructions...."). "Because no juror read the article, its publication could not have prejudiced [Cousins]." See Khoury, 539 F.2d at 442; see also United States v. Barshov, 733 F.2d 842, 851-52 (11th Cir.1984) (post-trial motion to interview jurors properly denied because district court "presumed that jurors followed the court's oft-repeated instructions not to discuss the case" even though a juror's son--who attended every day of the trial and overheard discussions occurring outside the jury's presence, who talked to the prosecutor and defense counsel about the case, and who even attempted to discuss the case with one of the defendants--was seen talking to jurors during recesses).

Cousins has presented no colorable showing that either the jury-encounter incident or the newspaper's account thereof "impugned in any way the integrity of the trial process." Barshov, 733 F.2d at 852. Consequently, the district court did not abuse its discretion in denying Cousins' motion for a mistrial. Nor was the district court obligated to ask the jurors more questions.

Cousins contends that the district court improperly admitted extrinsic evidence of his use of drugs. During the presentation of Cousins' defense, he made a motion in limine to prohibit the prosecution from cross-examining him or any character witness about his use of marijuana and cocaine. After this motion was denied, Cousins testified at length about his successful business career, prior military service and various civic activities. In response to questions asked by Cousins' attorney about previous drug use, Cousins testified:

Let me clarify 'use.' I never was a user. I experimented with it. I have never ever in my life seen cocaine or marijuana, other than on television, up until 1978, when I went to Fort Lauderdale. And I did get the opportunity to attend many parties, social functions, that were attended by people like doctors and lawyers and people in very high positions in the community. And it seems like drugs were just socially accepted and were done as an everyday life type situation. I didn't--I didn't agree with it, and I have always been an anti-drug person. And because of that and the exposure to our children, we moved [from Ft. Lauderdale to Gainesville].

In addition, on cross-examination, the prosecution referred to this testimony when Cousins was asked:

PROSECUTION: ... Other than your experience or your experimentation with cocaine at one time, several years ago, is it your testimony that you have never used it or been involved in any smuggling of marijuana or cocaine?

COUSINS: That's exactly what I testified to, and it's the truth.

Thus, Cousins' testimony portrayed himself to the jury not only as a law-abiding, hardworking business and family man, but also as someone vehemently and particularly opposed to illegal drugs.

During the government's rebuttal, two witnesses were called to refute Cousins' statements concerning his anti-drug sentiments and prior drug use. Both witnesses testified that Cousins had used cocaine since moving from Ft. Lauderdale to Gainesville, two years after the conclusion of the alleged conspiracy charged in count one of his indictment. Cousins objected to this testimony as an impermissible form of impeachment prohibited by Rule 608(b) of the Federal Rules of Evidence.

Rule 608(b) provides, in part, that "[s]pecific instances of the conduct of a witness for the purpose of attacking or supporting the witness' credibility ... may not be proved by extrinsic evidence." This rule prohibits a party from introducing extrinsic evidence of...