U.S. v. Yonn

• Decision Date: 22 April 1983
• Docket Number: No. 82-5270,82-5270
• Parties: 13 Fed. R. Evid. Serv. 95 UNITED STATES of America, Plaintiff-Appellee, v. Hubert Jerome YONN, Gary Carl Weeks, Hugo Sanes-Saavedra, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1341

702 F.2d 1341

13 Fed. R. Evid. Serv. 95

UNITED STATES of America, Plaintiff-Appellee, v. Hubert Jerome YONN, Gary Carl Weeks, Hugo Sanes-Saavedra Defendants-Appellants.

No. 82-5270.

United States Court of Appeals Eleventh Circuit.

April 22, 1983.

Philip G. Butler, Jr., West Palm Beach, Fla., for Yonn.

Philip J. Padovano, Tallahassee, Fla., for Weeks.

James I. Marcus, Williams & Marcus, Ltd., Chicago, Ill., for Sanes-Saavedra.

Michael T. Simpson, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before HENDERSON and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

Hubert Yonn, Gary Weeks and Hugo Sanes-Saavedra appeal their convictions for violations of 21 U.S.C. Secs. 841, 846, 952 and 963. The pertinent events leading to the charges began in June of 1981, when Yonn first met with James Dozier, a government informant. Yonn offered to pay Dozier, a licensed pilot, $75,000.00 to fly a planeload of marijuana from Colombia to Florida. Yonn anticipated a load of several thousand pounds.

That same day, Yonn introduced Dozier to Weeks. During the following weeks, the three men met on several occasions to inspect aircraft, select a landing site in Florida, and discuss other logistics of the planned trip. Law enforcement officials eventually provided Dozier with a portable tape recorder for the purpose of recording various telephone conversations with Weeks and Yonn. Later on, a young Colombia national, Hugo Sanes-Saavedra, attended several meetings with these principal actors.

Yonn, Weeks, and Sanes-Saavedra (along with a fourth man who was dismissed as a defendant when the district court granted his motion for judgment of acquittal) were arrested before the planned smuggling operation ever took place. They were charged in a two count indictment for a conspiracy to possess marijuana with the intent to distribute, 21 U.S.C. Secs. 841 and 846, and a conspiracy to import marijuana, 21 U.S.C. Secs. 952 and 963. A jury found Yonn and Weeks guilty on both counts. Sanes-Saavedra was acquitted of the possession with intent to distribute conspiracy, but convicted on the importation conspiracy charge. On appeal, we consider the various assignments of error asserted by the defendants.

I.

First, all three of the appellants contend that the district court committed reversible error by the manner in which it investigated an allegation of juror misconduct. The problem arose on the third day of the trial. During a recess, one of the jurors informed a marshal that another juror had improperly expressed her opinion on the weight of the evidence. As the reporting juror recognized, the comment violated the court's earlier instruction admonishing the jury not to engage in pre-deliberation discussions concerning the case and not to form an opinion until it was submitted to them for decision.

Advised of the incident, the trial judge alerted all counsel of his intention to interrogate the jurors individually. Over the defendants' objections, the court proceeded to question each juror outside of the presence of counsel for both sides. He first talked with the juror who had originally reported the remarks. The inquiry revealed that one of the jurors had stated that the government's chief witness, Dozier, was a "pimp," that she did not believe him, and that she "had already formed an opinion" as to the defendants' innocence. Four other jurors acknowledged hearing the remark, but all of them assured the judge that the comment would not affect their impartiality. Pursuant to the judge's direction, the court reporter transcribed all interviews.

After completing his investigation, the judge informed all counsel of his findings. Without disclosing the identity of the jurors involved or the substance of the improper remarks, the court stated that one juror had indeed violated his admonition against pre-deliberation discussions and forming a premature opinion. The judge further announced that the remaining jurors, including the juror who initially reported the comment, were still capable of rendering an impartial verdict. He also expressed his willingness to excuse the juror guilty of the impropriety.

The government moved the court to excuse that juror. The judge granted the motion, over the defendants' objections, and replaced the dismissed juror with the only alternate previously selected by the parties. Then the defendants requested the removal of the juror who reported the incident to the court. In so moving, they offered to stipulate to an eleven-person jury. The judge again assured them of the reporting juror's impartiality, but agreed to excuse her, provided the defendants knowingly and voluntarily waive their right to a twelve-person jury. After discussions with their attorneys, the defendants individually verified that they waived their right and preferred to continue the trial with eleven jurors. The court then granted their motion to excuse the reporting juror and resumed the trial.

Any challenge to the district court's investigation must be viewed in the context of the broad discretion afforded a trial judge confronted with such an allegation of juror misconduct. See United States v. Edwards 96 F.2d 1277 (11th Cir.1983); Grooms v. Wainwright, 610 F.2d 344, 347 (5th Cir.), cert. denied, 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980); c.f. United States v. Phillips, 664 F.2d 971, 999 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982) (more stringent duty of inquiry is imposed on trial court when there is an allegation of exposure to outside influence). In fact, that discretion extends even to the initial decision of whether to interrogate the jurors. ¹ Grooms, 610 F.2d at 347. Despite the wide latitude afforded the trial judge, the defendants claim that the district court abused its discretion by questioning the jurors outside the presence of counsel, by dismissing the juror who made the remark, and by obtaining their waiver of a twelve-person jury without disclosing the details of the impropriety.

From our hindsight view, we recognize that it would have been the better practice for the district court to have interviewed the jurors in the presence of all the concerned parties. See United States v. Parker, 549 F.2d 998, 1000 (5th Cir.1977); United States v. Johnson, 657 F.2d 604, 606 (4th Cir.1981). Fed.R.Crim.P. 43 guarantees a defendant the right to be present at "every stage of the trial." Thus, excluding the defendants or their attorneys from the interrogation of the jurors arguably deprived them of that right. C.f. United States v. Gay, 522 F.2d 429, 435 (6th Cir.1975) (hearing juror requests for excusal outside of the presence of the defendant violated rule). Nevertheless, such an exclusion, even if error, may be harmless. Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1, 6 (1975); see also United States v. Dumas, 658 F.2d 411, 413-14 (5th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982); United States v. Dominguez, 615 F.2d 1093, 1096 n. 4 (5th Cir.1980). After carefully reviewing the transcript of the trial court's questions to the jurors, and their answers thereto, we are convinced that any error, if any, committed by the district court was indeed harmless.

Transcribing the in camera interviews for the record helps to minimize the possibility of prejudice, by enabling the reviewing court to examine carefully whether any harm resulted from the ex parte contact between the judge and jurors. See Dumas, 658 F.2d at 414; see also Dominguez, 615 F.2d at 1096 n. 5; c.f. Gay, 522 F.2d at 435 (absence of record requires appellate court to "assume prejudice"). In this instance, the record reveals the commendable caution exercised by the trial judge in questioning each juror. He began by assuring the jurors that the inquiry was merely a necessary precaution and did not result from any impropriety on their part. The judge scrupulously refrained from intimating any opinion on the comment; he merely observed that the remark was a possible violation of his instructions. He obtained the pledges of those jurors who had overheard the remarks that the comment had not interfered with their ability to render a fair and impartial verdict, based upon all of the evidence presented, arguments of counsel, and the court's instructions. There is no suggestion that the judge's communications with, or his questions to the jurors intimidated them or prejudiced the defendants. Moreover, when the trial resumed, the court instructed the jury to disregard their earlier conversation, and again reminded them of their duty to base the verdict only on the evidence, the arguments, and the court's instructions. In short, the record refutes any claim that the in camera interviews prejudiced the defendants. Without such a showing, their exclusion from the investigation does not rise to the level of reversible error. See Dominguez, 615 F.2d at 1096; Parker, 549 F.2d at 1000.

The complaint that the district court erred by dismissing the juror who made the comments is likewise without merit. Fed.R.Crim.P. 24(c) permits the district court to replace a juror with an alternate whenever he finds the juror is "unable or disqualified to perform his duties." Also, "[t]he decision to excuse a juror for cause upon a suggestion of partiality is within the sound discretion of the trial judge." United States v. Taylor, 554 F.2d 200, 202 (5th Cir.1977); see also United States v. Spiegel, 604 F.2d 961, 967 (5th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). The exercise of that discretion will be upheld if there exists a "sound basis" for the decision. See, e.g., United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978). In this case, the nature of the juror's comments, which indicated...