U.S. v. Doe

• Decision Date: 17 April 1975
• Docket Number: No. 74-1208,74-1208
• Citation: 513 F.2d 709
• Parties: UNITED STATES of America, Appellee, v. John DOE, aka Angel L. Camacho, aka Angel Lopez Gonzalez, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 709

513 F.2d 709

UNITED STATES of America, Appellee, v. John DOE, aka Angel L. Camacho, aka Angel Lopez Gonzalez,

Defendant-Appellant.

No. 74-1208.

United States Court of Appeals, First Circuit.

Argued Feb. 3, 1975.

Decided April 17, 1975.

Morris M. Goldings, Boston, Mass., with whom Herbert D. Friedman, Boston, Mass., and Donald F. Frost, Miami, Fla., were on brief, for appellant.

Jorge Rios, Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., and Juan M. Perez Gimenez, Asst. U. S. Atty., San Juan, P. R., were on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

The principal argument raised in this criminal appeal is that the district court failed to make adequate inquiry and findings concerning alleged private communications between jurors and third persons.

There were four episodes. On the first day of a five day trial, after the jury had been impanelled but before evidence had been introduced, defense counsel noted that on his way to lunch he had observed a witness for the government "in the hall discussing I don't know what . . . within the realm of certain Jurors", and complained to the marshal, who "just let the Jurors go on." Counsel went on to report that on his return from lunch he had observed a juror selling lottery tickets to both a fellow juror and to a witness for the government.

As to the first incident, the juror in question had apparently been brought to the judge, admitted that he had talked about having lunch to a marshal whom he knew, but proved not to be a juror on the panel in this case. ¹ The court's reaction to the second incident was to call to the courtroom the juror alleged to have sold lottery tickets to ascertain that he had in fact sold tickets to other jurors and to an unknown non-juror, to call in the entire jury, to explain the situation as reported by defense counsel, remind the jurors of their responsibilities, and to replace the offending juror with an alternate. The court then, after admonishing the marshal to keep witnesses separated from jurors and the jurors to "hold your tongue", and to "watch your behavior", proceeded to interrogate some of the jurors, asking if they approved of its strictures. One juror, Rodriguez, responded ambivalently, expressing the thought that the court might have been too harsh on the offending juror. Defendant's counsel noting that Rodriguez had both agreed and disagreed with the court and that the court had identified him, defendant's counsel, as the initiator of the inquiry, moved for a mistrial which was denied.

The third episode occurred on the second day of trial when the court referred to the conduct of a juror who, on the preceding day, had apparently registered disgust with a ruling by turning his back to the court. The juror turned out to be the hapless Rodriguez who again took issue with the court, denying that he had turned his back. The court then made it clear that it wished no "little children" or "petty notions" to interfere with a fair trial and asked each of the eleven remaining jurors to see if they both understood and agreed with its action. After a recess the court replaced Rodriguez with another alternate juror, saying court, prosecutor, and defense counsel concurred in the action. A short time later defendant's counsel moved a second time for a mistrial, arguing that Rodriguez' attitude may have influenced other jurors. The court again polled the jurors, asking them if they felt that, notwithstanding the incident, they could still be fair to both sides. All replied in the affirmative and the trial proceeded.

The final incident was brought to the court's attention just before closing argument on the fifth and final day of trial. Defendant's counsel reported that "yesterday I wasn't feeling too good but nevertheless at lunch time if I recall correctly I saw one of the Jurors speaking to another Juror" not on the panel, the juror having been challenged. Counsel again moved for a mistrial. The court then addressed the juror indicated by counsel, asked him if he had talked with a member of the panel who had been excused, received a denial, confirmed with counsel that the juror was the one referred to, asked the question for the second time, and again received a categorical denial. Counsel again moved for a mistrial, apparently since he had again been revealed as the source of the inquiry. The court responded, "What do you want me to do, keep it hidden? You asked me to inquire and I inquired. How else am I to handle it counsel? " Counsel replied that he had nothing to say. The court then instructed the jury that defense counsel was not to be criticized but was doing his duty and thanked counsel for raising the question. The summations began.

While we have not had recent occasion to discuss the subject of communications between jurors and third persons, except indirectly, see United States v. Larkin, 417 F.2d 617 (1969), ² the legal principles are clear. Private communications between jurors and others are presumptively prejudicial unless their harmlessness is or becomes apparent. Mattox v. United States,146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); Remmer v. United States,350 U.S. 227, 76 S.Ct. 425, 100 L.Ed. 435 (1954). Cf. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (conversations not disclosed but close association of jurors with key prosecution witnesses); Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (statement of bailiff to juror concerning defendant). The circuits have spoken with consistency in requiring trial courts to examine scrupulously any suggestion of private communications. See cases cited in Tillman v. United States, 406 F.2d 930 (5th Cir. 1969), and 2 Wright, Federal Practice and Procedure, § 554.

We subscribe to the Fifth Circuit's formulation in United States v. McKinney, 429 F.2d 1019, 1026 (1970), of the trial court's duty:

"Implicit in these cases is the assumption that when jury misconduct is alleged in the defendant's motion for new trial, the trial judge has a duty to take the following actions: he must conduct a full investigation to ascertain whether the alleged jury misconduct actually occurred; if it occurred, he...