U.S. v. Dominguez

• Citation: 615 F.2d 1093
• Decision Date: 23 April 1980
• Docket Number: No. 79-5346,79-5346
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Edward DOMINGUEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1093

615 F.2d 1093

UNITED STATES of America, Plaintiff-Appellee, v. Ernest Edward DOMINGUEZ, Defendant-Appellant.

No. 79-5346.

United States Court of Appeals, Fifth Circuit.

April 23, 1980.

Robert R. Harris, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, GEWIN and POLITZ, Circuit Judges.

GEWIN, Circuit Judge:

Appellant Ernest Edward Dominguez appeals from a conviction in the Western District of Texas for possession of heroin with intent to distribute ¹ which resulted in a twelve year sentence and a fifteen year special parole term. His appeal is based on the trial court's excusal of a seated, but unsworn juror without consultation with defense counsel, denial of a motion to suppress based on alleged insufficiencies in the affidavit supporting a search warrant and failure of the court to direct a verdict in favor of the defendant due to the government's alleged inability to prove Dominguez was sane after the defense had presented evidence of his insanity. We find no merit in his contentions and affirm.

On December 6, 1978 an agent of the Drug Enforcement Administration (DEA) sought and obtained from a United States Magistrate a search warrant for the residence of Ernest Edward Dominguez. The application for the search warrant included an affidavit by the DEA agent which alleged that for several weeks the El Paso Police Department and the DEA had been conducting a surveillance operation at a Ranger Street residence pursuant to an anonymous telephone tip describing suspicious activity at the residence. The surveillance operation had disclosed that several known narcotics traffickers frequented the residence and that appellant Dominguez was apparently at the residence most of the time. The affidavit also recited information from two informants, at least one of whom had supplied reliable information previously, that Dominguez had sold heroin at the residence. One of the informants, according to the affidavit, had seen contraband at the residence within two weeks prior to the swearing out of the affidavit.

The warrant obtained on December 6, 1978 was executed the next day. Agents found approximately one pound of heroin in and around the master bedroom of the residence. Dominguez and three other occupants were arrested but charges were subsequently dropped against all but Dominguez.

On April 4, 1979 a jury was selected for Dominguez' trial and April 11 was set as the actual trial date. In the interim, on April 9, the trial judge received a note from one of the jurors requesting excusal from service due to the illness and hospitalization of his 87-year old mother in New Mexico. ² The trial judge mistakenly thought the request was from a venire member rather than from a seated juror and immediately excused the juror. He learned of his mistake the next day. Shortly before trial was to begin on April 11 he informed counsel of the inadvertent excusal and replaced the excused juror with one of the selected alternates. The defense moved for a mistrial and the court denied the motion.

Trial proceeded and, as a defense, appellant's counsel presented four psychiatrists who testified as to appellant's mental problems. The government offered one psychiatrist who testified in rebuttal that he had found Dominguez not to be suffering from any mental illness that would render him incapable of complying with the law. No motion for acquittal was made and the sanity issue, along with all other trial issues, went to the jury for determination. The jury decided all issues against appellant.

Rule 24(c) of the Federal Rules of Criminal Procedure provides that "alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties." It is settled law in this and other circuits that it is within the trial judge's sound discretion to remove a juror whenever the judge becomes convinced that the juror's abilities to perform his duties become impaired. United States v. Spiegel, 604 F.2d 961 (5th Cir. 1979); United States v. Rodriguez, 573 F.2d 330 (5th Cir. 1978), vacating, 564 F.2d 1189 (5th Cir. 1977); United States v. Smith, 550 F.2d 277, 285 (5th Cir.), cert. denied sub. nom. Wallace v. United States, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977), quoting United States v. Cameron, 464 F.2d 333, 334-35 (3d Cir. 1972); see, e. g., United States v. Hoffa, 367 F.2d 698, 712 (7th Cir. 1966), vacated on other grounds, 387 U.S. 231, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1967); United States v. Houlihan, 332 F.2d 8 (2d Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964). The question presented in this case then is whether the trial court abused its sound discretion in replacing a seated juror with an alternate upon a request for excusal from the seated, but unsworn, juror.

There is no question that alternates may replace seated jurors when they become unable to serve. That, indeed, is the very purpose of Rule 24(c). Two facts about this case may complicate this issue somewhat, however.

First, the practice of pre-selecting a jury in one week for service the following week caused the judge to be confused about the actual status of the juror. If the juror had been merely a jury venire member the excusal would not have raised any question of abuse of the judge's discretion. The fact that the juror was a member of the seated, albeit unsworn, ³ jury, however, implicates Rule 24(c) and involves a determination by the judge that the juror was unable to serve. Regardless of his mistaken belief that the excused juror was only a prospective juror, the trial judge apparently determined him to be unable to serve at the time the request for excusal was made. The excusal was not for a frivolous reason and was clearly not an abuse of discretion. See, e. g., United States v. Hoffa, 367 F.2d at 712 (juror excused near the close of arguments on information that the 92 year old mother of the juror had undergone hip surgery and was not expected to live).

The second complicating factor on this issue is that the juror was inadvertently excused outside the presence of defense counsel. Appellant claims that his right to be present at crucial points in the trial as provided by Fed.R.Crim.P. 43(a), was violated by excusal of the juror without prior notification of and consultation with defense counsel. ⁴ It is clear from the record that it was by inadvertence and not design that defense counsel was not present when the determination of whether the juror should be excused was made. While it is clearly the better practice to have defense counsel present when such an excusal is granted, the trial judge's misunderstanding about the status of this particular juror does not merit reversal of appellant's conviction in this case. ⁵

Appellant also urges consideration of two other grounds on this appeal, neither of which necessitate reversal. One of these claims is that the affidavit supporting the search warrant was insufficient under the two-pronged Aguilar-Spinelli test and defendant's motion to suppress the fruits of the search should have been granted. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The test requires that the affidavit (1) disclose " 'underlying circumstances' necessary to enable the magistrate independently to judge of the validity of the informant's conclusion" and (2) make some showing of reliability of the informant. Id. at 413, 89 S.Ct. at 587. In appellant's case the affidavit recites that the informant had previously supplied reliable information. This statement, coupled with the circumstances observed by an anonymous telephone caller and by the affiant in corroboration of the telephone tip, provide the required indication to the magistrate of the validity of the informant's information. See Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Hall, 545 F.2d 1008,...