U.S. v. Pierce, Nos. 79-1086

• Decision Date: 05 March 1979
• Docket Number: Nos. 79-1086,79-1087
• Parties: UNITED STATES of America, Appellee, v. James D. PIERCE and Patrick A. Lanning, Defendants, Appellants. UNITED STATES of America, Appellee, v. Carlos A. GUERRERO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 415

593 F.2d 415

UNITED STATES of America, Appellee, v. James D. PIERCE and Patrick A. Lanning, Defendants, Appellants.

UNITED STATES of America, Appellee, v. Carlos A. GUERRERO, Defendant, Appellant.

Nos. 79-1086, 79-1087.

United States Court of Appeals, First Circuit.

Argued March 1, 1979.

Decided March 5, 1979.

Donald L. Ferguson and Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for defendants, appellants Pierce and Lanning.

Roxana Marchosky, Boston, Mass., by appointment of the Court, for defendant, appellant Guerrero.

Walter B. Prince, Asst. U. S. Atty., Boston, Mass. with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH, Senior Circuit Judge, CAMPBELL and BOWNES, Circuit Judges.

ALDRICH, Senior Circuit Judge.

As the result of the Coast Guard's finding 34 tons of marijuana in the hold of a vessel boarded 55 miles off the Massachusetts coast, defendants were indicted for conspiracy to import a controlled substance. An anticipated defense was severely punctured by documents found in an allegedly locked valise which the Coast Guard had opened without a warrant. After the jury was impaneled it was sent to its room while the court took testimony and heard arguments on a motion to suppress the documents. It first concluded that it would deny the motion, but later expressed doubts, and instructed government counsel not to refer to the valise in his opening, and said it would pass finally on the motion later. The trial then proceeded. The next morning a juror reported to the clerk that, during the hearing from which the jury had been excluded, they had gone to the cafeteria; that the marshal had permitted the husband of one of the jurors to join them, and that the husband had been in the courtroom and had spoken to some of the jurors about what had gone on. The clerk informed the court, and the court called counsel to the lobby. In consequence of what there transpired the court declared a mistrial over the objection of at least two of the three defendants. Thereafter, the court having, meanwhile, denied the motion to suppress, defendants objected to the impaneling of a new jury on the ground of double jeopardy. The court denied their motion, and because one defendant was in jail and eight crew members were in protective custody, we proceeded promptly with these appeals.

At the outset of the lobby conference counsel for one of the defendants had requested that the court first decide the motion to suppress in order to determine the amount of taint, and be of help to defendants in deciding whether to waive any claim of prejudice. The court declined, responding that it did not appear to it to make any difference. It then called, seriatim, four jurors. The first, Mrs. Weiner, who had reported the incident to the clerk, testified that Mrs. Priest, another juror, had told her that the husband of a further juror had been sitting in the courtroom during a hearing and had reported thereon. "The words I had received . . . (were) that the attorneys were trying to work something out with the Judge and he wasn't buying it. . . . (His account) passed to everybody very quickly, once everybody got down there . . . it passed through everyone very quickly." Mrs. Priest testified that a juror (Mrs. LaJoie) stated to her that another juror had told her, following lunch, that her husband had been in the courtroom and had told her "something about they may be going to dismiss it." Mrs. LaJoie, in turn, corroborated this, testifying that "all he said" was "something to the effect that they were trying to dismiss the case." Finally, Mrs. Shoemaker testified that her husband "went down to coffee and . . . lunch . . . (;) (that) we were talking about sitting upstairs for three hours and he said he thought it was they were trying to get a piece of evidence not to be brought up in the case . . . . I think . . . it was a valise, or something. I don't know. And I am not positive but I think he said they weren't going to have it shown, but I really don't remember because we were talking about buying our house and everything . . . ." She stated that the juror who at last testified was present; that she could not remember if anyone else was.

After Mrs. Shoemaker left, the court stated that it did not see any alternative except to declare a mistrial. This, however, was not a definite ruling. The court invited counsel to put whatever they wanted in the record. Two of the three replied that they particularly liked this jury. The court then stated that it would not go ahead with the trial without the defendants' written consent; that it was not perhaps possible to ask them to decide this question, "plus the fact that I am a little more confident in what Mrs. Weiner had to say about this circulating throughout the jury very quickly . . . sitting down and their talking about it and . . . this thing got through very fast."

The court did not define what it meant by "this thing." Obviously, there was more than one account; that the defendants were seeking to exclude a valise; that they were trying to get the case dismissed, and Mrs. Weiner's statement that they were trying to work something out but the court would not buy it. This last, we regard as broad enough to encompass excluding evidence, or bargaining about a plea.

After the court's volunteering that it would not try the case jury waived, court and counsel returned to the courtroom without more ado and the court formally discharged the jury. Thereafter counsel for all defendants stated that they would have preferred to go through with the trial, ¹ to which the court responded that it took the responsibility "because I felt it was necessary under the circumstances."

In its order, made later when it denied defendants' plea of double jeopardy, ² the court commenced by stating that the jury had been instructed not to discuss the case among themselves or with anyone else. It summarized what we have already quoted, and then recited,

"The Court concluded that the jury had been tainted and declared a mistrial . . . . No reasonable alternative solution was available. At least four of the jurors had been directly involved and there were only two alternates.

"At the same time, the Court's ruling on the motion to suppress was as yet undecided. The matters concerned in the motion to suppress already had been communicated to the jury and the jury could engage in speculation in what that material was or what the lawyers were trying to accomplish. At the same time, there was no substantial hardship to any of the defendants so far as time was concerned. The indictment had been returned January 19th and a new trial date was scheduled for February 22, 1979. There had not been substantial evidence produced at the trial and no evidence which would reveal a defense strategy or defense testimony had been produced. The incident had not been provoked or caused by any actions of the government."

In view of the Supreme Court's constant insistence that a mistrial is to be ordered, over a defendant's objection, only upon a showing of "manifest necessity," or a "high degree" of necessity, E. g., Arizona v. Washington, 1978, 434 U.S. 497, 506-06, 98 S.Ct. 824, 54 L.Ed.2d 717; United States v. Jorn, 1971, 400 U.S. 470, 487, 91 S.Ct. 547, 27 L.Ed.2d 543; Downum v. United States, 1963, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100; United States v. Perez, 1824, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, our first inquiry must be whether the court gave adequate consideration to the existence of any less drastic alternative. See United States v. Jorn, ante, 400 U.S., at 487, 91 S.Ct. 547; United States v. McKoy, 3 Cir., 1979, 591 F.2d 218, 222; Dunkerley v. Hogan, 2 Cir., 1978, 579 F.2d 141, 146-48; United States v. Starling, 5 Cir., 1978, 571 F.2d 934, 941 & n.10; Cf. Arizona v. Washington, ante, 434 U.S., at 515-17 & n.39, 98 S.Ct. 824. We have no reason to reject the court's acceptance, without further inquiry, of Mrs. Weiner's testimony that other jurors, in addition to the four already questioned, had received some account. For present purposes, we will assume that it may have been Mrs. Weiner's account rather than that of the other three jurors questioned. The issue then becomes whether this produced an ineradicable taint, or whether the court could have taken some action, short of discharging the jury, to defuse any prejudice.

We agree with the court that discharge of certain jurors was an insufficient option, there being only two alternates. The matter to be considered is the possibility of curative instructions. On this issue the court gave counsel no opportunity to be heard, except to express their opinion that it would make a difference how the motion to suppress were to be decided. The court's disagreement with that conclusion we cannot accept. Rather, this seems the nub of the question. If the jurors were to know that the court, on motion of the defendants, had excluded the contents of the valise, to tell them to forget it would seem like the classic example of telling a child to sit in the corner and not think about elephants. There would be grave danger that the jury would constantly be wondering what the damaging evidence was. On the other hand, if the ruling were that the evidence was to be admitted, one must ask how defendants were prejudiced merely by antecedent knowledge that the defendants had sought its exclusion. Evidence is introduced every day over a defendant's objection in open court. The only difference here would be that the jury would know that the objections had been presented earlier, and had required extensive consideration before the court made up its mind. We can see no prejudice of any consequence in this.

Nor can we see prejudice in the jurors' learning, if this is what they thought, that the defendants had made an unsuccessful attempt to have the indictment...