U.S. v. Torres

• Decision Date: 09 October 1997
• Docket Number: 1632,Nos. 1587,D,s. 1587
• Citation: 128 F.3d 38
• Parties: UNITED STATES of America, Appellee, v. Robert TORRES, also known as Roberto Torres-Amaro, also known as Papo, also known as Papo Biombo, also known as Papo Blue Moon, also known as El Brujo; Ismael Pastrana, also known as Ismael Pastrana-Delgado, also known as Junior Pastrana, also known as Junior Grasa; Miguel Millan, also known as Miguel Millan-Silva, also known as Mickey Millan, also known as Maneco; Manuel Cruz, also known as Manuel DeJesus, also known as Manny, also known as Maneco; Juan Lugo, also known as Juan A. Lugo-Castro, also known as Juan Angel Lugo, also known as Juan Antonio Lugo Melendez, also known as Johnny Lugo; Edwin Torres, also known as Compy; Elvin Reyes, also known as Tuti, also known as Tuty; Gilberto Laguna, also known as Gilberto Ruben Laguna, also known as NFN Ruben; Pedro J. Merete, also known as Chucky; JosE Espada, also known as Jose Espada Martinez, also known as Chan; Carmelo Rodriguez, also known as Carmelo Rodriguez-Rosas; Enrique Rodriguez, also known as Enrique Rodriguez-Narvaez, also known as Quique; Manuel Iglesias; Carmen Amaro; Miguel Torres, also known as Miguel Torres-Diaz, also known as Miguel Diaz, also known as Papo Viejo, also known as Papo Grande, also known as Big Papo; Gloria Vasquez, also known as Gloria Vasquez Ortiz, also known as Dona Gloria; Hector Roman and John Chapel, also known as Juan Alvaro Chapel, Defendants, Joaquin Rivera and Joseph T. Devery, Defendants-Appellants. ockets 96-1535, 96-1597.
• Court: U.S. Court of Appeals — Second Circuit

Page 38

128 F.3d 38

UNITED STATES of America, Appellee, v. Robert TORRES, also known as Roberto Torres-Amaro, also known as Papo, also known as Papo Biombo, also known as Papo Blue Moon, also known as El Brujo; Ismael Pastrana, also known as Ismael Pastrana-Delgado, also known as Junior Pastrana, also known as Junior Grasa; Miguel Millan, also known as Miguel Millan-Silva, also known as Mickey Millan also known as Maneco; Manuel Cruz, also known as Manuel DeJesus, also known as Manny, also known as Maneco; Juan Lugo, also known as Juan A. Lugo-Castro, also known as Juan Angel Lugo, also known as Juan Antonio Lugo Melendez, also known as Johnny Lugo; Edwin Torres, also known as Compy Elvin Reyes, also known as Tuti, also known as Tuty Gilberto Laguna, also known as Gilberto Ruben Laguna, also known as NFN Ruben; Pedro J. Merete, also known as Chucky JosE Espada, also known as Jose Espada Martinez, also known as Chan; Carmelo Rodriguez, also known as Carmelo Rodriguez-Rosas; Enrique Rodriguez, also known as Enrique Rodriguez-Narvaez, also known as Quique; Manuel Iglesias; Carmen Amaro; Miguel Torres, also known as Miguel Torres-Diaz, also known as Miguel Diaz, also known as Papo Viejo, also known as Papo Grande, also known as Big Papo; Gloria Vasquez, also known as Gloria Vasquez Ortiz, also known as Dona Gloria; Hector Roman and John Chapel, also known as Juan Alvaro Chapel, Defendants, Joaquin Rivera and Joseph T. Devery, Defendants-Appellants.

Nos. 1587, 1632, Dockets 96-1535, 96-1597.

United States Court of Appeals, Second Circuit.

Argued June 3, 1997.

Decided Oct. 9, 1997.

David L. Lewis, Lewis & Fiore, New York City, for Defendant-Appellant Rivera.

Paul T. Gentile, Gentile & Dickler, New York City (Diarmuid White, Brendan White, of counsel), for Defendant-Appellant Devery.

Mary Jo White, United States Attorney, Southern District of New York, New York City (Tai H. Park, Craig A. Stewart, of counsel), for Appellee.

Before: NEWMAN, KEARSE, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

This case focuses primarily on the boundaries of the trial judge's discretion to excuse prospective jurors for cause. It asks us to consider under what circumstances a trial judge may either presume or infer bias on the part of a venireperson without explicitly asking whether he or she could apply the law impartially.

It is well-settled in our circuit that judges must presume bias in certain highly limited situations where a juror discloses a fact that creates such a high risk of partiality that the law requires the judge to excuse the juror for cause. For example, prospective jurors who are related to one of the parties or who have been victims of the alleged crime itself must be excused. They cannot be impaneled even if they state that they could faithfully uphold the law. But the existence of this narrowly circumscribed category does not foreclose the possibility that, in certain other situations, a court may in its discretion infer, from a disclosed fact that creates a risk of partiality, that prospective jurors would be biased and, as a result, excuse them without expressly inquiring into their ability to decide the case impartially.

We today hold that such a category of inferable bias exists. Included within this category are cases, like the one before us, where facts disclosed at voir dire indicate that a prospective juror has engaged in an activity closely akin to the conduct charged in the indictment against the defendant. In such circumstances, the trial court may, in its discretion, excuse the juror for cause.

Moreover, we hold that the district judge's exercise of her discretion to excuse a prospective juror in this case was proper, and that the appellants' other contentions are meritless. We, therefore, affirm the court's denial of appellants' motion for a new trial.

BACKGROUND

Appellants Joaquin Rivera and Joseph T. Devery were convicted of a conspiracy to launder the proceeds of a heroin trafficking scheme. Rivera, an attorney, assisted a real estate developer in his efforts to launder the drug money. Devery, a branch manager at a Chase Manhattan Bank in the Bronx, opened various bank accounts to facilitate the deposits of large sums of cash. In addition, Devery "structured" the deposits, dividing them into amounts of less than $10,000, in order to avoid having to file the "Currency Transaction Reports" that are required by federal law for cash deposits of greater than $10,000. See 31 U.S.C. §§ 5313(a), 5324 (1983 & 1997 Supp.); 31 C.F.R. §§ 103.22(a)(1), 103.27(a)(4) (1993).

Following their convictions, Rivera and Devery filed a motion to set aside the jury verdict. The motion was denied by the United States District Court for the Southern District of New York (Loretta A. Preska, Judge ). In that motion and on appeal, Rivera and Devery contend that they are entitled to a new trial: (1) because the district court improperly granted the prosecution's motions to excuse for cause four prospective We uphold the denial of the motion for a new trial on the basis of the allegedly newly discovered evidence of perjured testimony. We also readily hold that the district court properly excused for cause three of the four jurors--Nos. 27, 38, and replacement 38 ²--on its finding of actual bias. Our opinion focuses primarily on the dismissal of the remaining juror--No. 7.

                jurors; 1  and (2) because the prosecution revealed that one of its cooperating witnesses had committed perjury during the trial
                

Juror No. 7 was excused for cause pursuant to a motion by the prosecution, following her admission on voir dire that she herself had at one time engaged in the "structuring" of cash transactions. Some years before, this juror had worked in the payroll department of a cemetery business that employed roughly sixty people. She was in charge of withdrawing cash funds to pay the employees their weekly salary of approximately $400 to $500. At a sidebar with the judge, the juror stated:

[D]uring payroll time or something, weekly, the bank--any transaction over $10,000 they wanted some sort of report made. It was something new. But rather than make the report, we were withdrawing funds for 10,000. So instead of--over 10,000. So instead of making two checks out--making one check, we made two to keep it under 10,000 so that we did not have to file a report.

The juror represented that this went on for two to three weeks before her business changed procedure and issued salary checks directly to its employees.

Following this interchange, the government moved to excuse Juror No. 7 for cause. Appellants' counsel objected. Rivera's counsel stressed that "[s]he hasn't said she can't be fair. She hasn't been confronted with whether or not she violated the law." Devery's counsel echoed this objection: "I don't know if you have asked the full questions, whether or not any of that would affect her in this case, whether or not she would follow the law, whether or not, in being instructed concerning the laws, concerning [Currency Transaction Reports], she would follow it." At the sidebar, Judge Preska stated: "I don't see that she has to admit that she violated the law for it to rise to cause on this. What she may well think is that in following instructions on the law she may be forced to admit to herself that something she did violated the law. Maybe or maybe not. But I just can't imagine she could be fair." Accordingly, and without further questioning, Judge Preska granted the prosecution's motion to excuse the juror.

Devery and Rivera claim that the excusal of Juror No. 7 was improper. ³ They contend that the district court could not find actual bias without questioning Juror No. 7 as to whether she could impartially follow instructions on the law concerning structuring. They further assert that her past conduct did not fall within the narrowly circumscribed category of implied bias that justifies automatic excusal regardless of actual bias.

DISCUSSION

I. The Jurors Excused for Cause

A criminal defendant is guaranteed a trial "by an impartial jury." U.S. Const. amend. VI. "One touchstone of a fair trial is an impartial trier of fact--'a jury capable and willing to decide the case solely on the evidence before it.' " McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 849, 78 L.Ed.2d 663 (1984) (citation omitted). But "[i]mpartiality is not The category of challenges for cause is limited. ⁴ Such challenges "permit rejection of jurors on ... narrowly specified, provable and legally cognizable bas[es] of partiality." Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965). Usually, "jurors are dismissed from the venire 'for cause' precisely because they are unwilling or unable to follow the applicable law." United States v. Thomas, 116 F.3d 606, 616 (2d Cir.1997). ⁵

a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." United States v. Wood, 299 U.S. 123, 145-46, 57 S.Ct. 177, 185, 81 L.Ed. 78 (1936). It follows that "in each case a broad discretion and duty reside in the court to see that the jury as finally selected is subject to no solid basis of objection on the score of impartiality...." Frazier v. United States, 335 U.S. 497, 511, 69 S.Ct. 201, 209, 93 L.Ed. 187 (1948). Accordingly, the presiding trial judge has the authority and responsibility, either sua sponte or upon counsel's motion, to dismiss prospective jurors for cause.

Traditionally, challenges for cause have been divided into two categories: (1) those based on actual bias, and (2) those grounded in implied bias. See United States v. Brown, 644 F.2d 101, 107 (2d Cir.1981) (Oakes, J., dissenting) ("This court has long recognized that a distinction must be drawn between 'actual bias' and 'implied bias'...."). Today we...