U.S. v. Hernandez

• Decision Date: 17 May 1999
• Docket Number: No. 98-5266,98-5266
• Parties: UNITED STATES of America, v. Julio HERNANDEZ, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 719

176 F.3d 719

UNITED STATES of America, v. Julio HERNANDEZ, Appellant.

No. 98-5266.

United States Court of Appeals, Third Circuit.

Argued Jan. 25, 1999.

Decided May 17, 1999.

Lisa Van Hoeck, (Argued), Office of Federal Public Defender, Trenton, NJ, for Appellant.

George S. Leone, Allan Tananbaum, (Argued), Office of United States Attorney, Newark, NJ, for Appellee.

Before: SLOVITER, McKEE and RENDELL, Circuit Judges.

OPINION OF THE COURT

McKEE, Circuit Judge.

Julio Hernandez appeals his conviction for conspiring to obstruct interstate commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2, and receiving or possessing goods stolen from commerce in violation of 18 U.S.C. § 659. He argues that the District Court erred in defining reasonable doubt to the jury, in sustaining objections to certain oral statements which defense counsel sought to admit into evidence, and in allowing jurors to ask questions of witnesses. Because we agree that the District Court's definition of reasonable doubt was likely to cause confusion, we will reverse and remand for a new trial.

I.

This case arises from the highjacking of a tractor trailer truck containing 494 cases of cigarettes valued at $335,125.00. On the morning of Friday, June 13, 1997, Jose Sanchez was delivering the shipment of cigarettes when a van cut him off and forced him to stop his truck. Washington Alvarez jumped out of the van waiving a gun and ordered Sanchez to roll down the window and get out of the truck. Sanchez complied with the demand, but only after he pressed a panic button inside the truck that was designed to silently signal an alarm.

As Sanchez was forced from his truck, another individual, later identified as Julio Hernandez, got in. Alvarez lead Sanchez to a nearby van and forced him to get in. When Sanchez got inside, Alvarez placed duct tape over his eyes and taped his hands together. After Alvarez finished binding Sanchez, a third individual named Luis got out of a second van and joined the confederate who had gotten into Sanchez' truck. The conspirators then drove off with Sanchez' truck and its cargo, and Alvarez drove off with Sanchez. Sanchez was eventually released, and sought help from a police officer who lived nearby. Alvarez was arrested a short time later.

Meanwhile, a satellite tracking device inside the stolen truck disclosed the truck's location to police. As the truck was backed into a docking space at a gas station, the police arrived, secured the scene, and questioned onlookers about the whereabouts of the driver. A garage at the gas station had been converted to a warehouse, and after the police conducted their investigation they arrested Hernandez who had been unloading cases of cigarettes from the truck and placing them inside the warehouse. Police searched Hernandez pursuant to that arrest and found Sanchez' cigarette lighter inside a package of cigarettes that was inside Hernandez' shirt pocket. Hernandez later gave a statement in which he explained that he had borrowed a cigarette from men who had offered him a job unloading the truck. He explained that he never returned the cigarettes because the men left when the police arrived. ¹ According to Hernandez, the lighter was inside the pack of cigarettes when he got it.

Hernandez stood trial on charges of conspiring to obstruct commerce in violation of 18 U.S.C. § 1951(a) (count 1), obstructing commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2 (count 2); and receiving and possessing goods that had been stolen from interstate commerce in violation of 18 U.S.C. §§ 659 and 2 (count 3).

Alvarez testified against Hernandez pursuant to a plea bargain. He testified that Hernandez had jumped into Sanchez' truck after Sanchez was forced out of it, and that Hernandez then drove it away with Luis, and one other conspirator. Hernandez' trial lasted only four days, but the jury deliberated for three days without reaching a verdict. Finally, on the third day, after the trial judge gave a modified Allen charge, the jury convicted Hernandez on counts 1 and 3, but acquitted him of the charges in count 2 of the indictment. This appeal followed.

II.

We turn first to Hernandez' challenge to the District Court's practice of allowing jurors to participate in questioning witnesses during the course of the trial. The District Court allowed jurors to pose questions by handing the court written questions for the court's review. It appears from this record (and appellant does not argue to the contrary) that the court would then allow the attorneys to see the question so that counsel could make whatever objections they deemed appropriate, and the court could thus determine the admissibility and propriety of a question outside the hearing of the jury before asking the question.

One juror did submit a question in this manner. The juror asked: "[w]hat kind of rear doors are on the rear of the trailer?" App. at 644. However, the court did not ask the question of the witness. Rather, the court allowed the attorneys to decide what, if any, response each would make to the question. The court then gave the following explanation to the jury:

Let me just say with regard to questions that are presented by a witness,--by a juror, it well may be a particular witness who is on the stand at the time may not be the person to whom such a question would be addressed because he may not be a witness who may be in a position to answer the question.

We appreciate having your questions because now the attorneys on both sides know what inquiries you would make and either they may address them through their closing arguments, or they know if they wish to bring any additional witnesses to address the question, that would be up to them.

App. at 644-45. Defense counsel immediately objected to the question, even though the court never asked it. When court reconvened the following day, defense counsel reiterated her objection, and requested that the court conduct voir dire of the juror who had submitted the question. Defense counsel argued that the substance of the question, as well as its timing, suggested that the juror assumed Hernandez was guilty. The court denied the request stating:

That ... is an unreasonable request because there is nothing to suggest the juror had any notions of guilt. It merely reveals a juror had a question about the truck and what the truck was like. This was a fact question. There was nothing in the way the question was worded which suggested guilt, innocence, anything other than was the light red or was the light green? It was purely a fact question.

I think it was handled appropriately.

App. at 675-76. Defense counsel now insists that

[b]y permitting the jurors to act as inquisitors and declining to investigate alleged jury misconduct following the suspect question, the court denied Hernandez his Sixth Amendment right to a fair trial before an impartial jury. Juror questioning of witnesses is a "procedure fraught with perils. In most cases, the game will not be worth the candle." United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir.1992).

Appellant's Br. at 37. However, there is nothing here to suggest "jury misconduct" other than the unsupported inference that the juror who posed the question had reached a decision about the defendant's guilt before the end of the trial. Although defense counsel's argument urges such an assumption upon us, we refuse to jump to that conclusion. There is nothing in this record to suggest that the juror who posed the question was motivated by anything other than a desire to know about the rear doors on the highjacked truck. We will not violate the sanctity of the jury by requiring a judge to probe into the motivation behind such an innocuous question.

Defendant's more general challenge to the propriety of allowing juror questioning is an issue of first impression in this circuit, and requires more discussion. Although we have not previously addressed this issue, several other courts of appeal have. Although those courts have consistently expressed concern over the dangers of the practice, they have refused to adopt a rule prohibiting juror questioning of witnesses during the course of a criminal trial. See United States v. Bush, 47 F.3d 511 (2d Cir.1995); United States v. Ajmal, 67 F.3d 12, 14 (2d Cir.1995); United States v. Cassiere, 4 F.3d 1006, 1017-18 (1st Cir.1993); United States v. George, 986 F.2d 1176, 1178 (8th Cir.1993); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir.1985); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.1979); United States v. Gonzales, 424 F.2d 1055, 1055 (9th Cir.1970). We take this opportunity to approve of the practice so long as it is done in a manner that insures the fairness of the proceedings, the primacy of the court's stewardship, and the rights of the accused. ²

In United States v. Polowichak, 783 F.2d 410 (4th Cir.1986), the court disapproved the practice of posing juror questions in front of other jurors. The court stated that the trial judge should require questions to be submitted in writing, without disclosure to other jurors, "whereupon the court may pose the question in its original or restated form upon ruling the question or the substance of the question proper." Id. at 413.

In United States v. Stierwalt, 16 F.3d 282 (8th Cir.1994), the court held that the District Court did not err where questions were submitted in writing and all evidentiary issues were resolved before the judge read the questions to the witness. See id. at 286. See also George, 986 F.2d at 1178-79 (holding that despite the fact that the jury submitted 65 written questions to the court, the court employed proper formal procedures in that the questions were discussed with the attorneys and ruled upon by the judge).

In United States v. Bush, supra, jurors directly questioned witnesses, including the defendant. Defense counsel failed to object, and even engaged in a...