U.S. v. Quesada-Bonilla, QUESADA-BONILL

• Decision Date: 08 October 1991
• Docket Number: D,No. 90-2201,QUESADA-BONILL
• Citation: 952 F.2d 597
• Parties: UNITED STATES, Appellee, v. Eric J.efendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 597

952 F.2d 597

UNITED STATES, Appellee, v. Eric J. QUESADA-BONILLA, Defendant, Appellant.

No. 90-2201.

United States Court of Appeals, First Circuit.

Heard Oct. 8, 1991.

Decided Dec. 27, 1991.

Thomas R. Lincoln, by appointment of the Court, with whom Law Offices of Thomas R. Lincoln, was on brief, Old San Juan, P.R., for defendant, appellant.

Jose A. Quiles, Asst. U.S. Atty., Chief, Crim.Div., with whom Daniel F. Lopez-Romo, U.S. Atty., was on brief, Hato Rey, P.R., for appellee.

Before BREYER, Chief Judge, TORRUELLA, Circuit Judge, and WOODLOCK, ^* District Judge.

BREYER, Chief Judge.

The appellant, Eric Quesada-Bonilla, appeals his conviction for robbing a post office in San Juan, Puerto Rico. 18 U.S.C. §§ 2, 2114. The government's key witness, postal clerk Bernardo Arce, testified that on May 3, 1990, at about 3 p.m., a man entered the post office, jumped up on the counter, pointed a gun at him, demanded all the money in the cash register, and left with a bag containing about $2700. Arce positively identified the appellant as that man, as did one other witness, Erin Benitez, who caught a glimpse of the fleeing robber as she was entering the post office.

Quesada's defense was that he was working at a nearby factory at the time of the robbery. He produced a "check out form" from the factory with his name opposite the hour "3:30 p.m." Since the robbery took place at about 3 p.m., the jury, when convicting him, must have believed that Quesada signed in that space at a different time, or that someone else (perhaps his brother, who also worked at the factory) signed for him or, just conceivably, that he left the factory, robbed the post office, returned to the factory (several minutes drive away) and signed the form by 3:30 p.m. Quesada also produced a very brief "production report" which he claimed he wrote "at the end of the day" (presumably before signing out at 3:30 p.m.). The jury must have found this evidence equally unconvincing, for similar reasons.

Quesada appeals his conviction, complaining primarily of actions by the district judge and by the prosecutor that, he says, prejudiced the jury against him. Since the question before the jury was essentially one of which witnesses to believe, he argues, even subtle forms of prejudice might have proved fatal to his defense. We recognize that an unbiased jury is essential in any criminal proceeding, but we do not believe that the rulings and statements to which Quesada points created unlawful prejudice here. We therefore affirm his conviction. We shall briefly state our reasons.

I Jury Selection

Quesada argues that the district court's jury selection process improperly prejudiced the jury. He points out that his panel included two members who had just finished serving in another criminal case, before the same judge, who had selected both juries from the same pool. In the first case, the jury had convicted a defendant whom Quesada's lawyer also represented. Moreover, after the first conviction, the judge told the first jury that it seemed to him

that with the kind of evidence we had, ... the only solution or alternative was the one you found. Had the case been tried to me without a jury, I don't think I could have reached any other conclusion.

Quesada adds that the first case (a drug smuggling case) raised the question of whether the defendant had written a name on some baggage tags (rather like the issue of whether Quesada signed out on the check out form or wrote the production report). His lawyer had produced a handwriting expert in that case. The two "overlapping" members who served on his own jury, Quesada argues, may have wondered why his lawyer did not offer a handwriting expert at his trial as well. All this, he says, adds up to unlawful prejudice.

After examining the record, however, we can find no such prejudice. We are aware of no authority that prohibits a court, as a general matter, from empaneling juries for several cases in a single proceeding or using the same jurors in several cases, whether or not the defendants in those separate cases use the same lawyers. Such practices are fairly common in several judicial districts. See, e.g., United States v. Franklin, 700 F.2d 1241, 1242 (10th Cir.1983); see also United States v. Gillis, 942 F.2d 707 (10th Cir.1991). We approved the practice in United States v. Maraj, 947 F.2d 520, 523-25 (1st Cir.1991). And, we see no reason to challenge, or to depart from that circuit authority. See also United States v. Graham, 739 F.2d 351, 352 (8th Cir.1984) (absent showing of "actual prejudice on the part of the challenged jurors, we have repeatedly rejected the argument that a juror's service in prior cases involving the same attorneys or witnesses supports a per se theory of implied bias"); United States v. Riebschlaeger, 528 F.2d 1031, 1032-33 (5th Cir.) (per curiam), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976) (jurors' service in other cases with same defense counsel and same prosecutor and resulting in convictions did not require the court to "quash" entire jury panel; "concept of implied bias" rejected).

Nor do we believe that the judge's post-verdict remarks to the first jury created any actual prejudice to Quesada. We recognize that American Bar Association standards say that trial judges are not to comment to the jury on the merits of its verdict. See ABA Standards for Criminal Justice 15-4.6 (2d ed. 1980) ("While it is appropriate for the trial judge to thank jurors at the conclusion of a trial for their public service, such comments should not include praise or criticism of their verdict."); ABA Standards, The Function of the Trial Judge § 5.13 (Approved Draft 1972) (same); ABA Standards, Trial by Jury § 5.6 (Approved Draft 1968) (same). This Standard was "intended to avoid improper influence in other cases to which the jurors may be assigned," id. commentary, particularly where "these same jurors may immediately be assigned to decide other pending cases." ABA Standards for Criminal Justice 15-4.6 commentary. Specifically, it sought to eliminate "the practice of some judges ... to ... comment favorably or unfavorably upon the verdict, for example, that [the jurors] did the right thing in convicting the defendant...." Id. The 1990 ABA Model Code of Judicial Conduct reaffirms this basic principle. See ABA Canon 3 B(10) and commentary (a "judge shall not commend or criticize jurors for their verdict other than in a court order or opinion," lest doing so "imply a judicial expectation in future cases," and thereby "impair a juror's ability to be fair and impartial in a subsequent case.").

ABA standards and model rules, however, do not automatically set the measure of reversible error in specific cases, particularly where, as here, the case does not present the evils the proposed canon seeks to prevent. Here, the judge's comments did not "imply" any "judicial expectation." The judge told the jury he thought it had reached the correct result in that specific case (in the judge's words) "with the kind of evidence we had." This language does not suggest the judge favored convictions or believed that a jury should convict in a different case where the evidence was different. We do not see how the comment could have biased the two members of Quesada's jury who had served in the preceding trial. And, in the absence of prejudice, any legal error is "harmless." Fed.R.Crim.P. 52(a).

Neither did the presence of a "handwriting issue" in both cases create actual prejudice. The circumstances of the first case (involving drug smuggling) and Quesada's case were very different. Moreover, a juror, whether or not he had previously served on a "handwriting case" jury might well think about the possible use of experts to resolve handwriting disputes. That the two overlapping jurors had some special, bias-creating thought about this matter is simply too remote a possibility for us to find that the overlap created prejudice. Cf. United States v. Morales-Diaz, 925 F.2d 535, 537 (1st Cir.1991) (rejecting defendant's argument that jurors who had served in unrelated prior drug case were more likely to convict "because their prior guilty verdict indicated that they had already determined favorably the credibility of the government's witnesses" who testified at both trials).

II Judge's Comments at Trial

Quesada complains about a comment the judge made during the trial. Defense counsel had questioned the postal clerk, Bernardo Arce, at length about a surveillance camera in the post office--a camera that failed to work during the robbery, perhaps because it had no film. At one point counsel turned to the judge and said, "I wish they had had film, your honor." The judge replied (with sarcasm, according to Quesada), "Well, I am not that sure." Quesada says this remark led the jurors to think the judge thought Quesada guilty, thereby prejudicing their deliberations.

The following considerations, taken together, convince us that this comment, while best left unsaid, was not reversible error. First, a trial court has broad authority to comment during a trial, and in particular, to comment in a way that will stop the jury from treating a lawyer's argument as if it were evidence. Quercia v. United States, 289 U.S. 466, 469-70, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933); Doherty v. Doherty Ins. Agcy., 878 F.2d 546, 553 (1st Cir.1989); United States v. Mateos-Sanchez, 864 F.2d 232, 240-41 (1st Cir.1988). The trial judge's comment here appears to have been a spontaneous and inartful effort to caution against just such an evidentiary use of defense counsel's gratuitous observation.

Second, Quesada's counsel, in a sense, provoked the court's comment. He spent considerable time questioning Arce about why the camera failed to work--a matter that was irrelevant to the issues before the court. After this extended questioning, the court said,

I don't think we should go into this any further. The fact is that the...