U.S. v. Vasquez

• Decision Date: 18 May 1979
• Docket Number: No. 77-3607,77-3607
• Citation: 597 F.2d 192
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary Josephine VASQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 192

597 F.2d 192

UNITED STATES of America, Plaintiff-Appellee, v. Mary Josephine VASQUEZ, Defendant-Appellant.

No. 77-3607.

United States Court of Appeals Ninth Circuit.

May 18, 1979.

Victor Sherman, Los Angeles, Cal., for defendant-appellant.

Andrea Sheridan Ordin, Asst. U. S. Atty., Los Angeles, Cal., on brief; Bert Deixler, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUFSTEDLER and TANG, Circuit Judges, and SCHWARZER, District Judge. ^*

TANG, Circuit Judge.

Appellant appeals her conviction by a jury for violation of 18 U.S.C. § 1001. Appellant claims numerous errors but the principal issue we determine is whether a fair trial was denied because members of the jury saw during their deliberations the official court file which accidentally had been taken into the jury room. We conclude that this extrinsic prejudicial evidence denied appellant due process of law and reverse.

Appellant was originally indicted in Count I for knowingly and wilfully making false statements to United States customs officials in violation of 18 U.S.C. § 1001 and in Count II for knowingly transporting $8,850.00 into the United States without filing a report as required by 31 U.S.C. § 1101(b). During the second day of deliberations the jury found appellant guilty of violating 18 U.S.C. § 1001 and not guilty of violating 31 U.S.C. § 1101(b). Just prior to the conclusion of the jury's deliberations, the trial judge discovered that his law clerk-bailiff had inadvertently left the official file of the court in the jury room for four hours during the first day of deliberations.

The file included all defense motions, proposed defense instructions, a stipulation and affidavits. Some of the motions and instructions had been denied by the court before trial. Other documents included inadmissible evidence that the appellant had been previously prosecuted for an offense involving contraband. Also included were certain facts underlying the search of appellant prior to her arrest. These facts had been expressly made inadmissible by the court prior to trial.

After the jury returned their verdict, the trial judge questioned the jurors about the file. It was discovered that the file had been passed around the jury room. Most jurors at least glanced at the file or leafed through it. Some admitted seeing particular documents. One juror stated he had read several pages of proposed instructions in the file. After reading these instructions, he asked for clarification of the instructions given in court. The jurors indicated, however, that they had not taken the file into consideration in reaching their verdict. Based on these disavowals, the trial judge concluded that the verdict was not tainted and denied appellant's motion for a mistrial.

The Government concedes that the file contained prejudicial information. Our inquiry is to determine whether this admittedly prejudicial extrinsic evidence prevented the defendant from receiving a fair trial. United States v. Alessio, 528 F.2d 1079, 1083 (9th Cir. 1976). In determining this, the actual impact upon the jury of such evidence cannot be accurately measured or ascertained. See United States v. Pittman, 449 F.2d 1284, 1286 (9th Cir. 1971). Consequently, it is a useless exercise even to ask jurors whether such evidence in fact affected their verdict. As stated in Braswell v. United States, 200 F.2d 597, 602 (5th Cir. 1952):

The right to trial by jury comprehends a fair determination of the guilt or innocence of the accused, free from bias, passion or prejudice. * * * And where error occurs which, within the range of a reasonable possibility may have affected the verdict of a jury, appellant is not required to explore the minds of the jurors in an effort to prove that it did in fact influence their verdict.

Our circuit has not been confronted apparently with a criminal case where extrinsic prejudicial evidence has been taken into the jury room. Other circuits, however, have addressed the issue and have generally determined that the key question is whether there exists a possibility that such information influenced the verdict. ¹ Similarly, we hold that the appellant is entitled to a new trial if there existed a reasonable possibility that the extrinsic material could have affected the verdict. Paz v. United States, 462 F.2d 740, 745 (5th Cir. 1972); Farese v. United States, 428 F.2d 178, 180 (5th Cir. 1970). The basis for such a standard was correctly summarized in Farese:

It is a fundamental principle that the government has the burden of establishing guilt solely on the basis of evidence produced in the courtroom and under circumstances assuring the accused all the safeguards of a fair trial.

. . . Judicial control of the juror(s') knowledge of the case pursuant to the laws of evidence is fundamental to the prevention of bias and prejudice. Our rules of evidence are designed to exclude from consideration by the jurors those facts and objects which may tend to prejudice or confuse. Evidence presented under the exclusionary rules is subject to cross-examination and rebuttal. It is therefore necessary that all evidence developed against an accused "come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Turner v. Louisiana, 379 U.S. 466, 472-473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965).

Id. at 179-180.

In order to ascertain if there existed a reasonable...