U.S. v. Eubanks

• Decision Date: 02 February 1979
• Docket Number: 77-4003 and 78-1032,Nos. 77-3919,77-3955,s. 77-3919
• Citation: 591 F.2d 513
• Parties: 4 Fed. R. Evid. Serv. 266 UNITED STATES of America, Appellee, v. Fred EUBANKS, Eugene Martinez, Leroy Jones, Henry D. Yanez, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 513

591 F.2d 513

4 Fed. R. Evid. Serv. 266

UNITED STATES of America, Appellee, v. Fred EUBANKS, Eugene Martinez, Leroy Jones, Henry D. Yanez Appellants.

Nos. 77-3919, 77-3955, 77-4003 and 78-1032.

United States Court of Appeals Ninth Circuit.

Feb. 2, 1979.

As Amended March 12, 1979.

Robert J. Hirsh (argued), of Hirsh & Shiner, John E. Lindberg (argued), George Haskel Curtis (argued), of Curtis & Cunningham, Tucson, Ariz., Michael D. Kimerer (argued), Henry, Wallach, Kimerer & LaVelle, Phoenix, Ariz., for appellants.

Stephen M. Dichter, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before ELY and HUFSTEDLER, Circuit Judges, and KRAFT, ^* District judge.

PER CURIAM:

Appellants and three others were indicted on charges of conspiracy to distribute heroin and to possess heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. Appellants were jointly tried and convicted by a jury. On appeal, they raise numerous claims of error, the most serious of which is founded on the alleged bias of one of the trial jurors. It is unnecessary for us to discuss all the issues raised by appellants, because we hold that the district court erred in denying appellant's motion for a new trial based on juror bias. We do consider appellants' claims of error based on the refusal of certain jury instructions and the admission of hearsay testimony, because they are likely to arise again on retrial.

I

Appellants argue that the district court erred by denying their motion for a new trial because of the alleged bias of juror Collins. After the conclusion of the trial, appellants' counsel learned that juror Collins had two sons who were serving long prison terms for murder and robbery. Both of the juror's sons were heroin users and their crimes had been committed in an effort to acquire additional heroin.

Defense counsel had been unaware of Collins' background at the time of jury selection. Collins had indicated on one of his juror qualification forms that he was married and had no children. The trial judge, who conducted the voir dire, had asked prospective jurors: "have any of you or members of your immediate families ever been personally interested in the defense of a criminal case or a witness for the defense in a criminal case?" Collins did not respond to the question. ¹ The trial judge refused defense requests to conduct additional voir dire, and Collins was selected as a juror. ²

After discovering the background of Collins' sons, defense counsel moved for a new trial on the grounds of juror bias. Appellants' attorneys argued that Collins could not have served as an unbiased juror in a prosecution for heroin trafficking because his sons' lives had been ruined by heroin use. The trial judge denied the motion for a new trial.

The Sixth Amendment right to trial by jury "guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). In investigating charges of juror bias or misconduct, the trial court "will necessarily be directed by the content of the allegations, including the seriousness of the alleged misconduct or bias, and the credibility of the source." United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir. 1977). ³ If the allegations are found to be true, the court must decide whether the defendant was denied his constitutional right to an impartial jury. "The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974). Even if "only one juror is unduly biased or prejudiced," the defendant is denied his constitutional right to an impartial jury. United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977).

The allegations of juror bias here were extremely serious and the facts upon which they were founded were not open to dispute. If Collins, during voir dire, had revealed that he had two sons serving prison terms for heroin-related crimes, the trial court undoubtedly would have excused him from serving on the jury. Regardless of the reason for Collins' nondisclosure, we conclude that his sons' tragic involvement with heroin bars the inference that Collins served as an impartial juror. United States v. Allsup, 566 F.2d 68, 71-72 (9th Cir. 1977) (bias may be presumed from the "potential for substantial emotional involvement" inherent in certain relationships).

II

Appellants' motion for a new trial was Not denied because the trial judge found Collins to have been unbiased, but rather because he presumed that Collins could not have influenced the jury's verdict. The trial judge refused to grant appellants a new trial because he doubted that Collins' presence on the jury could have affected the verdict. ("As I say, this Oklahoma Indian who is a laborer in his days when he is employed, who has a seventh-grade education, obvious difficulty with even filling out his questionnaires, I just can't believe that he was a factor in precipitating a guilty verdict in this case, after four days of trial with four defendants, and he was able to persuade the other eleven jurors to agree with him in less than two hours on a verdict of guilty as to all four defendants.") This reasoning is at odds with United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977), where we noted that: "If only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel." Regardless of what role Collins played during jury deliberations, appellants were denied their constitutional right to an impartial jury by his presence on the panel. Thus we hold that the district court erred by denying appellants' motion for a new trial.

III

Appellants also contend that the district court erred by refusing to instruct the jury on the possibility of finding multiple conspiracies. Appellants were jointly tried under an indictment charging them, and at least three other individuals, with participation in a single conspiracy to possess and to distribute heroin. The Government contended that the evidence established a "chain conspiracy" in which Yanez and Jones acted as suppliers of heroin, Martinez served as a courier and Eubanks was a buyer.

Appellants proposed two jury instructions regarding the possibility of finding multiple conspiracies. Requested Instruction No. 20 stated: "The Indictment charges a single conspiracy. If you find that the proof showed two or more other conspiracies and the defendant was not a party to these conspiracies, a material variance between the Indictment and the proof exists and you must acquit the defendant." Requested Instruction No. 21 stated: "Further, if you find that the evidence showed, not the single alleged conspiracy in the Indictment, but a series of separate and unconnected conspiracies involving different people, a material variance exists and there cannot be a conviction of the conspiracy charged in the Indictment based upon that evidence." The trial court refused to deliver the requested charges.

The requested instructions, as phrased, were not accurate statements of law. Instruction No. 20 was defective because the existence of other conspiracies would not preclude the jury from finding that defendants were involved in the overall conspiracy charged in the indictment. United States v. Perry, 550 F.2d 524, 533 (9th Cir. 1977) ("the jury could find that there were several different agreements involving the defendants, all of which would then connect the defendants to the general overall conspiracy as charged in the indictment"). Instruction No. 21 was incomplete. It is axiomatic that if the evidence did not show "the single alleged conspiracy in the Indictment," then appellants could not be convicted of that particular conspiracy. But this does not imply that appellants could not be convicted of any conspiracy under the indictment because of a variance between the indictment's allegations and the evidence. In United States v. Griffin, 464 F.2d 1352 (9th Cir. 1972), we held that defendants charged with participation in a single conspiracy could be convicted of separate conspiracies, if the jury was cautioned not to consider evidence admitted against members of other conspiracies in considering the guilt of individual defendants.

The trial judge properly refused appellants' instructions, but he should not have ignored the possibility that the jury could have found multiple conspiracies. If it is possible under the evidence for the jury to find that multiple conspiracies existed, then the court should instruct the jury on the issue. United States v. Perry, 550 F.2d 524, 533 (9th Cir. 1977). When the possibility of a variance between the indictment and the trial proof appears, the jury should also be given a limiting instruction about the procedure for considering evidence of multiple conspiracies. United States v. Griffin, 464 F.2d 1352, 1357 (9th Cir. 1972); United States v. Varelli, 407 F.2d 735, 746 (7th Cir. 1969). The evidence here was sufficient to support the jury's finding that a single conspiracy had occurred; but it was also sufficient to warrant a jury instruction on the possibility of finding multiple conspiracies. ⁴ Based on the evidence produced at trial, the jury could have found that multiple conspiracies had taken place, rather than the single conspiracy charged in the indictment. Thus the trial judge should have instructed the jury on the multiple conspiracy issue.

IV

Appellants also argue that the trial judge admitted prejudicial hearsay testimony against them, despite their objections. At trial the defense raised numerous hearsay objections to the testimony of the prosecution's star witness, Gloria Baca...