U.S. v. Curbelo, 02-4194.

• Decision Date: 11 September 2003
• Docket Number: No. 02-4247.,No. 02-4194.,02-4194.,02-4247.
• Citation: 343 F.3d 273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco CURBELO, a/k/a Murando, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Francisco Curbelo, a/k/a Murando, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

343 F.3d 273

UNITED STATES of America, Plaintiff-Appellee, v. Francisco CURBELO, a/k/a Murando, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Francisco Curbelo, a/k/a Murando, Defendant-Appellant.

No. 02-4194.

No. 02-4247.

United States Court of Appeals, Fourth Circuit.

Argued: April 3, 2003.

Decided: September 11, 2003.

ARGUED: Lisa S. Costner, Lisa S. Costner, P.A., Winston-Salem, North Carolina, for Appellant.

Gretchen C.F. Shappert, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and MOTZ and KING, Circuit Judges.

Vacated and remanded by published opinion. Judge KING wrote the majority opinion, in which Judge DIANA GRIBBON MOTZ joined. Chief Judge WILKINS wrote a dissenting opinion.

OPINION

KING, Circuit Judge:

On July 13, 2001, an eleven-person jury convicted Francisco Curbelo of multiple counts related to a drug distribution ring that operated out of Charlotte, North Carolina. Curbelo has asserted several possible grounds for reversal, including the district court's decision to proceed, over his objection, with eleven jurors. The Government concedes that the court erred in proceeding with an eleven-person jury, but it asserts that the error was harmless and that Curbelo's convictions should therefore be affirmed. Every court to have addressed the question has held to the contrary, and we decline to deviate from this consensus. Thus, we vacate Curbelo's convictions and remand for a new trial, without reaching his other assertions of error.

I.

On July 13, 1999, a grand jury in the Western District of North Carolina returned its initial indictment against Curbelo, charging him with multiple drug and firearms violations. A superseding indictment was returned on February 6, 2001, and it serves as the basis for his convictions. The superseding indictment alleges that Curbelo and others engaged in a drug conspiracy between January 1996 and June 1999. Count One of the superseding indictment charged Curbelo with a controlled substances conspiracy, in violation of 21 U.S.C. § 846; Counts Two, Four, Five, Seven, Nine, and Eleven charged him with possession with intent to distribute cocaine base, in contravention of 21 U.S.C. § 841; and Counts Three, Six, Eight, Ten and Twelve charged him with possession of firearms in relation to drug trafficking offenses, in violation of 18 U.S.C. § 924(c).

On July 9, 2001, a jury of twelve was impaneled for Curbelo's trial.¹ The jurors were sworn shortly after 4 o'clock that afternoon, and counsel for both sides then presented their opening statements. The Government then called its first and principal witness, an alleged co-conspirator, Thurnell Williams. At approximately 5:00 p.m., the trial was adjourned for the day, resuming the next morning around 9:30. At about 5 o'clock on the afternoon of July 10 — after Williams had completed his direct testimony, but not his cross-examination — court was adjourned early because of an air conditioning problem in the courthouse.

On the morning of July 11, 2001, before the start of the third day of what would be a five-day trial, the court informed the parties that "[o]ne of our jurors has called in sick and will have to be excused." In response, the prosecution suggested that the parties stipulate to proceeding with only eleven jurors. Although Curbelo declined to so stipulate, the court nevertheless announced:

It appears that the Court finds it necessary to excuse one juror for just case [sic] after the trial commences. [The juror's] father having called in and reported she's suffering from irritable bowel syndrome and is totally unable to function. She has been instructed to report to court with a doctor's certificate after she recovers from whatever this is. But I believe the Court has discretion to proceed with 11 absent the stipulation, and we will proceed.

Thus, the court ruled, over Curbelo's objection, that his trial should proceed with eleven jurors, even though the trial was still in its infant stages — with the first witness still on the stand.

That witness, Thurnell Williams, provided a good deal of the evidence against Curbelo. Williams, who supported himself by selling crack, testified that on several occasions, from late 1996 through June 1999, he purchased illegal narcotics from Curbelo. Around the end of 1998 or the beginning of 1999, Williams stopped dealing with Curbelo because he owed and could not repay Curbelo $12,000, apparently for illegal drugs. Later in 1999, when law enforcement agents "repeatedly" told Williams that he was "a target of a federal investigation," he agreed to "assist the government and become an informant." Working with the agents, Williams started dealing with Curbelo again. Because Curbelo did not speak much English, various people, including a man named Jose, helped Williams negotiate with Curbelo. According to Williams, the purchases often took place in Curbelo's phone store, with Jose's translation and assistance. (Jose worked for Curbelo at the store.) Further, Williams testified that Curbelo kept a microwave and firearms in the back of the store, where he sometimes microwaved the cocaine into crack. During several of his interactions with Curbelo, Williams wore a wire and a video camera; the Government played these tapes, and provided photographs and transcripts of these meetings to the jurors.

Williams acknowledged that during the 1990s he was convicted and imprisoned in Florida for assault, trafficking in cocaine and possession of a firearm during the commission of a felony, and that in July 1999 (after he had begun work for law enforcement) he was convicted of theft and possession of a firearm. On cross-examination, defense counsel asked Williams about (1) his failure to mention Curbelo's possession of guns in his initial reports to police; (2) a confidential informant's statement that contradicted a portion of Williams's testimony; and (3) an allegation that Williams had purchased a cellular phone from Curbelo's store and that Williams's unpaid debt was actually owed in connection with that purchase, rather than for illegal drugs.

Regarding his interactions with Curbelo, Williams admitted that on multiple occasions Curbelo explicitly refused to provide him with any cocaine, stating that he only had access to marijuana. Williams also acknowledged that Jose actually "handed" him "the drugs" every time he purchased them while working with law enforcement officers. On the first such occasion, June 15, 1999, Jose told him that Curbelo would not be there and to "talk to him [Jose]." The next day when Williams called, Curbelo again was away from the store, and Williams asked Jose for cocaine; in paying for the cocaine, Williams attempted to hand the money to Curbelo (as instructed by the agents), but Jose took the money and counted it himself. Williams also agreed that the "other times that [he had] s[aid][he] saw Mr. Curbelo cooking cocaine or the other times that [he] [said] [he] dealt with Mr. Curbelo, none of that is actually documented on tape or a transcript or audiotape or anything like that." And, "[t]here is no physical evidence of any of those transactions at all."

Six other alleged drug dealers or co-conspirators testified more briefly; most were imprisoned and testified under plea agreements. On direct examination, they corroborated various aspects of Williams's testimony; on cross-examination they contradicted themselves and each other on some issues. For example, one of the other witnesses testified in detail that, with Williams's knowledge and encouragement, he had robbed Curbelo's store and kidnaped Curbelo's girlfriend, Wendy. However, when Williams testified, he had denied knowing anything about the robbery or kidnaping.

In addition, two Government agents testified;² they related their conversations with Williams and observations of Curbelo. They acknowledged that no law enforcement officers accompanied Williams into Curbelo's store, that other than what was shown on video, they could not see what was happening in the store, that the quality of some of the video was "poor," and that the video did not "show who was actually transferring the drugs." Furthermore, they admitted that on the tapes, Williams's references to drugs ("ounces") were only made when he was talking to Jose, and that when he talked about paying down his debt to Curbelo, he "never ma[de] a reference to drugs." Finally, they conceded that Williams had not been charged with Wendy's kidnaping, or the robbery of Curbelo's store, or his drug dealing in North Carolina prior to his cooperation with law enforcement authorities, or his possession of a firearm by a convicted felon.

Curbelo took the stand in his own defense and testified through an interpreter. According to Curbelo, in January 1999, Williams started coming to Curbelo's recently opened store to look at some of the phones. Williams was "very insistent about drugs," "always telling [Curbelo] that he knew people in New York [who] had drug sources." Curbelo, however, denied ever selling drugs to Williams. Curbelo's lawyer asked Curbelo about one of the tapes on which it appeared that Curbelo was saying "kilo." Curbelo explained that the police did not respond after the robbery of his store, that he suspected Williams, and that he used the word "kilo" in an effort to set a trap for Williams to come back to the store and try to rob it again. He said that he later found out that Jose did give Williams drugs, but that he and Jose had only talked about "a pretend simulated drug business to try to trap" Williams and obtain evidence on him. Curbelo also testified that it was "impossible" that Williams saw him cooking crack cocaine in a microwave oven in the back of the store, because "Wendy was scared to death" of Williams and he and Wendy "would never have him go past the counter."

Curbelo acknowledged that he knew many of the witnesses who testified...