U.S. v. Madrid

• Decision Date: 22 March 1988
• Docket Number: 86-1021 and 86-1041,Nos. 86-1019,86-1020,s. 86-1019
• Citation: 842 F.2d 1090
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gilbert MADRID; Gerald Inouye; Gordon Yabui; Edwin Madamba, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1090

842 F.2d 1090

UNITED STATES of America, Plaintiff-Appellee, v. Gilbert MADRID; Gerald Inouye; Gordon Yabui; Edwin Madamba, Defendants-Appellants.

Nos. 86-1019, 86-1020, 86-1021 and 86-1041.

United States Court of Appeals Ninth Circuit.

Argued Dec. 15, 1987.

Submitted March 15, 1988.

Decided March 22, 1988.

Frank J. Marine, U.S. Justice Dept., Washington, D.C., for U.S.

Chester M. Kanai, Honolulu, Hawaii, for Madrid.

Matthew S.K. Pyun, Jr., Anthony H. Yusi, Pyunn, Okimoto and Thomason, Honolulu, Hawaii, for Inouye.

James D. Comack, Comack & Kiuchi, Honolulu, Hawaii, for Yabui.

Randall N. Harakal, Shigemura & Ching, Honolulu, Hawaii, for Madamba.

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

Before CHOY, GOODWIN and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Gerald Inouye, Edwin Madamba, Gordon Yabui and Gilbert Madrid appeal their convictions under 18 U.S.C. Secs. 1962(c), 1962(d) and 1955 for illegal gambling and racketeering. Madamba appeals his conviction under 18 U.S.C. Sec. 1951 for extortion. Inouye and Yabui appeal their convictions under 18 U.S.C. Sec. 1623 for making false material declarations before a grand jury.

Each appellant claims that an ex parte communication between a juror and court clerk requires a new trial and that erroneous jury instructions require reversal. We affirm.

I

During deliberations, two jurors left the jury room. One was crying. This juror sought and found a court clerk. The juror told the clerk that she had been "sworn at" by another juror. The offended juror, Mrs. Audriano, testified that the clerk, Mr. Sakai, instructed her to try to settle her differences with the other juror and thereafter to resume deliberations.

The district court found that the clerk did not place any time limit on jury deliberations, that he did not tell the juror that he brought a message from the judge, that he did not urge the juror either to vote guilty, or alternatively, to vote not guilty, that he did not tell the juror that the judge would not accept a deadlock, and that he told the juror who had "sworn at" Mrs. Audriano to "cool it." The clerk did not affirmatively instruct juror Audriano not to abandon her convictions upon returning to the jury room.

The juror did not communicate to the clerk the numerical division which existed in the jury room. The clerk did not seek information as to how the juror intended to vote. The juror did not indicate whether she constituted a minority. These facts are substantially corroborated by the testimony and affidavit of Mrs. Audriano and of the juror who accompanied Mrs. Audriano, Mr. Cabriera.

In a final, sworn affidavit, juror Audriano stated: "I did not think that [the clerk] was trying to intimidate or influence me. Whatever [the clerk] said to me, it did not cause my decision to vote as I did ... I did not tell [the clerk] that I was being pushed. I told him I had been sworn at." The juror stated that she had not been urged to change her vote and that she "did not decide to give up at the point [the clerk] talked to me; I decided afterwards as the deliberations continued." The juror testified that, after returning to the jury room and deliberating for seven hours, she changed her position.

The jury returned a special verdict which included finding each defendant guilty of certain offenses and each not guilty of others.

The district court held a hearing to determine whether the ex parte communication had prejudiced the verdict. The district court concluded that it had "not affected the verdict." The district court denied the motion for a new trial.

Appellants also claim that the district court's instruction charging them with racketeering under 18 U.S.C. Sec. 1962(c) ("Count 72") mandates reversal. Appellants point out that the minimum gross daily revenue necessary for conviction under 18 U.S.C. Sec. 1962(c) is "more than $1,000 in any one day." They note that the district court instructed that the minimum necessary amount was "$1,000 in any one day." There was no objection to this instruction at trial. The record indicates that the jury found, in relation to a different count, that defendants received at least $2,000 in gross daily revenue.

Appellants also claim that the district court's instruction charging them with conducting an illegal lottery and mutual scheme under 18 U.S.C. Sec. 1955 ("Count 24") constituted reversible error. They claim that the instruction on this count confused elements of federal law by referring to Hawaii state law, by failing to properly define "lottery," and by incorporating the misstatement of minimum gross daily revenue which appeared in Count 72.

Defendant Inouye makes additional claims. First, Inouye claims that the district court erred by giving an incorrect date on which the statute of limitations should have tolled for his racketeering charges under 18 U.S.C. Sec. 1962 ("Counts 1, 2 and 24"). He argues that this denied him the defenses of withdrawal and abandonment. Second, Inouye claims that the district court erred by refusing to give a manslaughter instruction on one of the racketeering acts in Count 1.

Inouye was sentenced to seventeen years, Madrid to fifteen years, Yabui to twelve years, and Madamba to ten years imprisonment.

The appeal is timely filed. We have jurisdiction under 28 U.S.C. Sec. 1291.

II

We review alleged jury misconduct independently, in the context of the entire record. United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). We accord substantial weight to the trial judge's conclusion as to the effect of alleged juror misconduct. Considerable deference is paid to the trial judge, since "[t]he trial judge is uniquely qualified to appraise the probable effect of information upon the jury, the materiality of the extraneous material, and its prejudicial nature." United States v. Steele, 785 F.2d 743, 746 (9th Cir.1986), quoting Bagnariol, 665 F.2d at 885. We look less harshly upon a conviction if the trial court has conducted an evidentiary hearing. Bagnariol, 665 F.2d at 885.

We review allegedly erroneous jury instructions, timely objected to, in their entirety. United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982). The trial judge's choice of language justifies reversal only for abuse of discretion. United States v. Morse, 785 F.2d 771, 776 (9th Cir.), cert. denied, 476 U.S. 1186, 106 S.Ct. 2925, 91 L.Ed.2d 553 (1986).

When no objection is made to a jury instruction at trial, we review the instruction for plain error. United States v. Tom, 640 F.2d 1037, 1041 (9th Cir.1981).

III

Appellants claim that the Supreme Court's decision in Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956) ("Remmer II "), dictates a new trial. Appellants argue Remmer II and United States v. Bagley, 641 F.2d 1235 (9th Cir.), cert. denied, 454 U.S. 942, 102 S.Ct. 480, 70 L.Ed.2d 251 (1981), stand for the proposition that any ex parte communication to a juror, if it creates a "reasonable possibility" of prejudice to the verdict, constitutes reversible error. They argue that all ex parte communications must be accorded a "presumption of prejudice" when deciding whether to order a new trial. They contend that the ex parte conversation between juror Audriano and court clerk Sakai created a "reasonable possibility" of prejudice to the verdict by providing "extraneous information" to the jury, thus requiring reversal under Remmer II.

The government argues, first, that Remmer II stands for the proposition that "[a] defendant is entitled to a new trial if there existed a 'reasonable possibility' that misconduct ... affected the verdict." According to the government, since "reasonable possibility" was not proved by the defendant, a new trial is not required.

The government argues, second, that "[t]he Supreme Court in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), and Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam), abandoned the Remmer II presumption of prejudice ('reasonable possibility' of prejudice) standard, and imposed a burden on the defendant to establish that he was actually prejudiced" by the ex parte communication. Arguing that "actual prejudice" was not proved, they conclude the ex parte contact was harmless.

We decline to adopt the broad interpretation of Remmer II, but we conclude that the government's reliance on Smith and Rushen is accurate. Smith and Rushen firmly establish that a defendant must demonstrate "actual prejudice" resulting from an ex parte contact to receive a new trial. Unlike Bagley, these cases do not involve the unauthorized submission of "extraneous information" (e.g., a file or dictionary) to the jury. Instead, they involve ex parte contacts which did not pertain to "any fact in controversy or any law applicable to the case." Rushen, 464 U.S. at 121, 104 S.Ct. at 457.

Rushen involved a juror-initiated ex parte contact between the judge and a juror concerning impartiality. "The judge simply assured [the juror] that there was no cause for concern." Rushen, 464 U.S. at 121, 104 S.Ct. at 457. The Supreme Court stated in Rushen, "[t]he substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to [a] presumption [of correctness]." Id. at 120, 104 S.Ct. at 456. Only if there is "convincing evidence to the contrary" and an absence of "fair support" in the record may the finding of fact be set aside. Id.

Similarly, Smith involved a juror-initiated ex parte communication. Smith did not involve extraneous information being placed before the jury as to "any fact in controversy or any law applicable to the case." Rushen, 464 U.S. at 121, 104 S.Ct. at 457.

In Smith, the Supreme Court, citing to Remmer II and Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), stated, "[t]hese cases...