U.S. v. Martinez

• Citation: 604 F.2d 361
• Decision Date: 10 October 1979
• Docket Number: No. 78-5719,78-5719
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andres MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 361

604 F.2d 361

UNITED STATES of America, Plaintiff-Appellee, v. Andres MARTINEZ, Defendant-Appellant.

No. 78-5719.

United States Court of Appeals Fifth Circuit.

Oct. 10, 1979.

Donovan Campbell, Jr. (court-appointed), Dallas, 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 WISDOM, CLARK and GEE, Circuit Judges.

WISDOM, Circuit Judge:

The defendant, Andres Martinez, appeals his jury conviction of one count of violating 21 U.S.C. § 846 and one count of violating 21 U.S.C. § 841(a)(1). These counts respectively relate to conspiracy to possess a controlled substance, heroin, with the intent to distribute it, and the completed substantive offense of possessing a controlled substance with the intent to distribute it. He contends that the trial jury was impermissibly tainted, that he was denied his Sixth Amendment right to be present at his trial, and that a prosecution witness's statement warranted a mistrial. ¹ None of these contentions are meritorious. We affirm the conviction on both counts.

On September 29, 1976, Officer Mollier, an El Paso police officer assigned to the Drug Enforcement Administration, posed as a drug buyer and asked to purchase heroin from coconspirator Regalado. That evening Mollier, Regalado, and coconspirator Ramirez drove to the Colorado Inn Bar in El Paso, the same place where Mollier had previously purchased heroin from Ramirez. Instructing Mollier to wait in the car, Ramirez went into the bar. After some time, Martinez approached Ramirez and talked with him. Ramirez came back to Mollier's car and said that his source would sell four ounces at $1,000 an ounce. Martinez left after Ramirez told him of Mollier's acquiescence. Approximately fifteen minutes later he returned with coconspirator Velasquez. She raised her blouse and handed two objects to Martinez, who then gave them to Ramirez. Ramirez gave one to Mollier, who opened it and saw four foil wrapped packets. When questioned about the quality of the heroin Ramirez assured Mollier it was good stuff, commenting that Mollier had bought other heroin from the same source. Mollier and other officers then arrested all four coconspirators. After Martinez's conviction, he was sentenced to concurrent fourteen-year prison terms and fifteen-year special parole terms.

I.

On the first morning of the trial Martinez, his wife, his sister, and his brother, Alberto Martinez, were sitting together in front of the courtroom. Two policemen approached his brother. One displayed a badge, took Alberto Martinez's right arm, and told him that he was under arrest. Alberto protested loudly. The two officers quickly hustled him onto an elevator. They let him go after they realized they had mistaken him for a third brother. Both officers were important witnesses in the defendant's trial. The incident did not last longer than five minutes.

The next day, after the prosecution and the defense had finished their cases, the defense attorney moved for a mistrial because of this incident, contending that jurors could have seen it. After taking testimony from one of the arresting officers and from the defendant's relatives, ² the court called in all the jurors individually, asking if each had witnessed any disturbance in the courthouse the preceding day. The judge instructed the jurors to refrain from discussing the instructions and speculating why they were asked.

The trial judge's questioning revealed that two jurors and the alternate juror had seen all or part of the incident. Juror Pillado stated that she had seen an "older gentleman" arrested. The following exchange then took place:

Q. Did you make any connection between the man who you saw taken and your service as a juror?

A. Yes, I did, because the lady went back and sat with the defendant and somebody else.

Juror Valdez stated that he saw "probably FBI agents grab this man, put him in the elevator". Alternate juror Love noticed only that the sister of the defendant was talking with someone. Both stated that they did not think the incident related to their service as a juror and that they would be fair and impartial.

When recalled juror Pillado stated that she had not discussed the disturbance with any jurors. Juror Valdez stated that he had discussed it with Pillado and that he thought that the arrested individual must have been the defendant's father. He reiterated that his impartiality was unaffected, "because I would consider that it could have happened anywhere else, and it would just be another matter". Alternate juror Love stated that she had not discussed it with anyone. ³ After this testimony the defense counsel again moved for a mistrial. The court denied it, but put alternate juror Love on the jury in place of Pillado because of Pillado's statement that she did connect the arrest with her service as a juror.

The defendant argues that a mistrial should have been granted, citing cases which discuss the importance of an impartial jury. See, e. g., Mattox v. United States, 1892, 146 U.S. 140, 149-50, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921; Paramount Film Distrib. Corp. v. Applebaum, 5 Cir. 1954, 217 F.2d 101, 105, Cert. denied, 1955, 349 U.S. 961, 75 S.Ct. 892, 99 L.Ed. 1284. Martinez contends that this Court must follow the test articulated in United States v. McKinney, 5 Cir. 1970, 429 F.2d 1019.

Implicit in (prior cases) is the assumption that when jury misconduct is alleged in the defendant's motion for a new trial, the trial judge has a duty to take the following actions: he must conduct a full investigation to ascertain whether the alleged jury misconduct actually occurred; if it occurred, he must determine whether or not it was prejudicial; unless he concludes that it was clearly not prejudicial, he must grant the motion for new trial; if he concludes that it did not occur or that it was clearly not prejudicial, he must spell out his findings with adequate specificity for meaningful appellate review.

Id. at 1026.

This test has never been adopted by this circuit. On rehearing, McKinney was reversed. 434 F.2d 831, Cert. denied, 1971, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825. The Court stated, "I do not think that our Court should in any case undertake to promulgate such a general rule," 434 F.2d at 833. (The author of that opinion cited the test approvingly in a subsequent case and stated that the rule should be the same for a mistrial motion as for a new trial motion. United States v. Betner, 5 Cir. 1974, 489 F.2d 116, 119.) Subsequent decisions have not adhered to the steps prescribed by the McKinney test. See, e. g., United States v. Herring, 5 Cir. 1978, 568 F.2d 1099, 1104-06, 1105 n.16; United States v. Chiantese, 5 Cir. 1977, 546 F.2d 135, 138, Modified and remanded, 5 Cir. 1977, 560 F.2d 1244 (en banc), Modified, 5 Cir. 1978, 582 F.2d 974; United States v. Khoury, 5 Cir. 1976, 539 F.2d 441, 443, Cert. denied, 1977, 429 U.S. 1040, 97 S.Ct. 739, 50 L.Ed.2d 752. On rehearing in Chiantese, this Court noted that "the decision to hold a hearing to determine whether juror misconduct has occurred is within the sound discretion of the trial judge and . . . his ruling will not be reversed unless it constitutes an abuse of that discretion". 582 F.2d at 978. In determining whether to conduct a hearing, "the court must balance the probable harm resulting from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by that misconduct". 582 F.2d at 980.

The trial judge in this case has adhered to the Chiantese admonitions he investigated the incident while minimizing the deleterious effects of the inquiry. He questioned jurors individually and cautioned them not to discuss the questions or to speculate on their implications. He removed the only juror whose answers arguably indicated prejudice. After finding that neither of the other onlookers would be prejudiced against the defendant and that one noticed only that the defendant's sister was talking with someone, he found that the jury's impartiality had not been endangered. We do not find any abuse of discretion in these determinations. No "jury misconduct" took place, so the judge did not need to undertake a full-blown McKinney investigation. Indeed, such a course could have encouraged the jury to dwell on the arrest of the other individual. In other circumstances extraneous events may be prejudicial. A trial judge has an ever-present duty to ascertain whether a jury has been affected by events occurring outside of the trial.

II.

After a luncheon recess on the trial's first day the judge noticed that the defendant was absent. The defense counsel said that he had gone to look for a witness and should have returned already. When asked, the attorney stated that he could conduct the defense alone. The judge called in the jury and told them that he had been informed the defendant was "inadvertently detained". Martinez returned during an afternoon recess. After the jury was excused at the end of the day the judge explained to Martinez the importance of his presence:

I will tell you that it is most important that you be present for every single phase of your trial, because if you're not present, you're not able to know what happens, and you're not able to advise with your attorney, and you're not able to know or give him information that he might need in connection with your defense.

He added that the trial would proceed at 9:00 the next day whether or not Martinez was present.

Although Martinez had said he would attend, he disappeared between 8:30 and 9:00 the next morning. The court revoked bond but instructed the marshal to make sure that the defendant did not appear in court "shackled or handcuffed". When the trial recommenced the district court instructed the...