U.S. v. Egbuniwe

• Citation: 969 F.2d 757
• Decision Date: 30 June 1992
• Docket Number: Nos. 91-50378,91-50382,s. 91-50378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alexander EGBUNIWE, Celestine Emere Anyanwu, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 757

969 F.2d 757

UNITED STATES of America, Plaintiff-Appellee, v. Alexander EGBUNIWE, Celestine Emere Anyanwu, Defendants-Appellants.

Nos. 91-50378, 91-50382.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 6, 1992.

Decided June 30, 1992.

David E. Durchfort, Beverly Hills, Cal., for defendant-appellant Egbuniwe. Terry Amdur, Pasadena, Cal., for defendant-appellant Anyanwu.

Dean G. Dunlavey, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: ALARCON, NORRIS, and O'SCANNLAIN, Circuit Judges.

ALARCON, Circuit Judge:

Alexander Egbuniwe and Celestine Anyanwu appeal from the judgments entered upon their convictions for violations of federal narcotics laws. They assert that the district court abused its discretion in excusing a juror and allowing an eleven-person jury to return a verdict. In addition, Egbuniwe asserts the district court erred in calculating his sentence based on the amount of heroin possessed by the other members of the conspiracy. We affirm because we conclude that the district court acted within its discretion in proceeding with eleven jurors pursuant to Rule 23(b) of the Federal Rules of Criminal Procedure. We also hold that the district court correctly calculated Egbuniwe's sentence based on his involvement in the conspiracy.

Pertinent Factual Background

Onyedi Lawrence Irokameje, Richard O. Arum, Okwudiri Remi Arishi, and Celestine Emere Anyanwu were arrested for narcotics offenses after arriving in Los Angeles International Airport on a flight from Lagos, Nigeria. Irokameje, Arum, and Anyanwu had transported heroin from Nigeria by carrying it in their digestive tracts. The record demonstrated that Alexander Egbuniwe and Ijemba Alexander Ifeanyi (Ijemba) were involved in a conspiracy with Irokameje, Arum, Arishi, and Anyanwu to distribute heroin imported from Nigeria.

Egbuniwe, Arishi, and Anyanwu were tried jointly. The jury began deliberating on February 20, 1991 at 10:25 a.m. At 4:00 p.m., the jury sent the district court a note stating in part: "And we are very much a hung jury. Do you have any instruction for us?" The district court did not give the jury any further instructions.

The next day, while the jury was in deliberations, Juror Number 8's neighbor requested permission to speak with Juror Number 8 as soon as possible. The neighbor told the court that Juror Number 8's wife had been arrested. In an informal discussion before the court proceedings began, the neighbor told counsel that Juror Number 8's wife had been arrested for nonpayment of traffic tickets. The attorneys informed the court of the neighbor's statement.

After Juror Number 8 was escorted from the jury room, he talked with his neighbor in the hallway. The court instructed the bailiff to tell the remaining jury members to take a recess from their deliberations during Juror Number 8's absence from the jury room.

After completing his conversation with his neighbor, Juror Number 8 reentered the courtroom outside of the presence of the other jurors. The trial judge asked Juror Number 8 to relate what the neighbor had told him. Juror Number 8 stated that the police had arrested the woman with whom he lived and had taken custody of her six-year-old boy. Juror Number 8 said that someone had called the police to report child abuse after the child had fallen off his bike. His neighbor told him that the boy had been slapped and had marks on him that looked like somebody burned him with a cigarette. Juror Number 8 said he was "sure it wasn't her ... I can just say that she doesn't smoke. [Her arrest] has been a mistake." Juror Number 8 also stated:

I wouldn't be surprised if the police want to talk to me. And as I said, let me think about this. I am going to call down there and see if they want to talk to me also. You know, I said I will just, you know, go ahead on and finish doing what I was doing, and then when I get a chance I will call. And then I will call down and see what they say. If there's a problem, I said to where I got a problem with my jury service, I said then I would let you know. But right now, there is nothing I can do because she's not my wife. And like I said, I haven't been home in five days.

Juror Number 8 further explained to the court that his friend told him that the police had been "real rough" with his girlfriend. The neighbor told him that the police "were pushing around and grabbing on her and pulling guns on her and pulling guns on him ... And she was crying, and they were shoving her around and put her in the car and stuff like that." When asked what he would do if he were not on jury duty, Juror Number 8 explained that he would not post bail for her. Juror Number 8 then stated: "[L]et's say they want to talk to me, and they want to arrest me or something like that, then that would be a different story. But I just want to know if they want to ask me any questions. I am concerned about that." (emphasis added).

Juror Number 8 also reported that his neighbor told him the police did not ask about him, but the police did not talk very much. Juror Number 8 informed the court that "there's certainly a mistaken identity or something. You know, I am just not saying it because I know her. But I know that, you know, somehow she is probably falsely accused of something, and, you know, it is one of those mistakes." (emphasis added).

Following this explanation, the district court held a conference with the prosecutor and defense counsel. The prosecutor requested that the juror be dismissed. The defense attorneys objected. After listening to both sides, the trial judge stated that he would excuse Juror Number 8 from the jury. The court informed counsel that it realized that the removal of the juror presented a "sensitive" issue which it had resolved only after "considerable deliberation." The trial judge further explained that although he recognized that Juror Number 8 said he "could go about his work," he did not ask the juror whether he could be fair and impartial because "it would be a rare juror who would stand up and say 'under these circumstances, I can't be fair and impartial.' " The court noted that the neighbor's recitation of the facts involving the arrest of the juror's girlfriend was contrary to Juror Number 8's account. The court expressed its "very distinct, strong feeling ... that this juror was not forthcoming, which ties into his neighbor was not being forthcoming." The court described Juror Number 8's appearance as "somewhat nervous." Juror Number 8 appeared "evasive, and his body language was such that I have a feeling he was shifting back and forth a bit."

After reciting the events related by Juror Number 8, the court ruled as follows:

[U]nder the totality of the circumstances, to believe that that man can, under those circumstances, number one, can concentrate, but, more importantly, might not have a bias and might not affect this jury just denies (sic) one's imagination ... [O]ne test that could be looked to is what if this man had said all this in voir dire? What would have happened? There isn't any prosecutor in the country who wouldn't have excused him or wouldn't have requested that he be excused for cause. And, most assuredly, if that had not been recognized, excused him peremptorily..... This is a serious offense. Child Abuse. Burning children with cigarettes. Apparently bruised and/or cut up, lacerated.... There are definitely questions that are going to want to be asked by authorities of this man.... So, there is a concern on his part, and it may be a concern that he might be unjustly accused, or that she has been unjustly accused. But this is not the state of mind that you are looking for with a juror.

Before Juror Number 8 returned to the jury room, the district court received another note from the jury signed by eleven jurors. The note contained the following request:

We need to talk to you about one person on our jury. He has personally threatened two members and has said things, quote, apparent statements, closed paren, that shows that he is unable to be objective.

After receiving the note, the court commented that the "discharge in no way bears upon this latest jury note. I will say to you that I had made the preliminary finding before the jury's latest jury note came in, and I sought input from counsel. There was no input to in any way influence me to change my mind."

On February 26, 1991, the district court supplemented its reasons for excusing Juror Number 8 in these words:

[W]hen I voir dired him ... to determine whether he could continue to serve as a juror, in my strong view--very strong view--[Juror Number 8's] statements cast serious doubts on his ability to concentrate on the deliberations in this case and/or on his ability to be a fair and impartial juror.... It is specially noteworthy that he mentioned fear of arrest, because this indicates the seriousness with which he viewed those events. Although [Juror Number 8] did tell the court that he wished to continue as a juror, I did not attach a great credibility to his self assessment of his impartiality in light of the facts before me. The seriousness of the charges brought against his girl friend, his express views about the instant police misconduct and the falsity of the charges and his defensive demeanor and failure to be forthcoming convinced me [Juror Number 8] could not be a fair juror.

Juror Number 8 was discharged as a juror on the morning of February 21, 1991. After the remaining jurors returned from their lunch break, they deliberated for the rest of the afternoon. The jury continued its deliberations on Friday, February 22, 1991. The jury did not deliberate over the weekend or on the following Monday. They proceeded with deliberations on Tuesday, February 26, 1991. On February 26, 1991 at 4:10 p.m., the jury returned verdicts against Egbuniwe, Anyanwu,...