United States v. Gonzalez, No. 18-1597

• Decision Date: 31 January 2020
• Docket Number: No. 18-1597
• Citation: 949 F.3d 30
• Parties: UNITED STATES of America, Appellee, v. Alfredo GONZALEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

949 F.3d 30

UNITED STATES of America, Appellee,

v.Alfredo GONZALEZ, Defendant, Appellant.

No. 18-1597

United States Court of Appeals, First Circuit.

January 31, 2020

Tina Schneider, Portland, ME, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, and Kasey A. Weiland, Assistant United States Attorney, were on brief, for appellee.

Before Kayatta, Selya, and Stahl, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Alfredo Gonzalez argues that his federal drug-trafficking conviction should be set aside because an ineligible juror was seated on his jury. In the alternative, he argues that his twenty-year mandatory minimum recidivist sentence should be vacated. Concluding that the appellant's asseverational array lacks merit, we affirm both his conviction and his sentence.

I. BACKGROUND

We start by rehearsing the travel of the case. On October 5, 2016, a federal grand jury sitting in the District of New Hampshire indicted the appellant, along with fifteen co-defendants, on a charge of conspiracy to distribute and to possess with intent to distribute controlled substances. See 21 U.S.C. §§ 841(a), 846. Pertinently, the indictment alleged that the appellant's conduct as a member of the conspiracy "involved one kilogram or more of a mixture or substance containing a detectable amount of heroin" in violation of 21 U.S.C. § 841(b)(1)(A)(i). The appellant entered a "not guilty" plea to the indictment.

While the case was awaiting trial, the government filed an Information pursuant to 21 U.S.C. § 851(a) (the Information). Through the Information, the government placed on record the appellant's 1997 New Hampshire state conviction for possession of a narcotic drug with intent to sell. See N.H. Rev. Stat. Ann. § 318-B:2(I) (1990). It is undisputed that the appellant received a prison sentence of three-and-one-half to seven years in the state case. The government asserted that the state conviction and sentence rendered the appellant subject to a mandatory minimum recidivist sentence of twenty years if found guilty of the federal drug-conspiracy charge. See 21 U.S.C. § 841(b)(1)(A) (2012).

A jury trial ensued in the district court, and the appellant was convicted of the conspiracy charge on November 9, 2017. The jury found specially that the weight of heroin involved in the conspiracy and attributable to the appellant was one kilogram or more. Within a matter of days, though, the district court notified the parties of a nascent issue involving the residency of Juror No. 127. Insofar as they are pertinent here, we sketch the facts summarized in the court's memorandum:

• Before jury empanelment began, the parties received a packet of information from the district court clerk's office regarding the jury venire. This packet included a jury selection list, compiled by the clerk's office, which recounted each juror's self-reported permanent address (city and state). It also included supplemental questionnaires filled out by the prospective jurors.

• The jury selection list noted, next to the name of Juror No. 127, "Derry NH." In contrast, his supplemental questionnaire indicated that he had been working in Massachusetts and had been a Massachusetts resident for the last fifteen months.

• Prior to the voir dire, Juror No. 127 spoke with two district court staff members about how to describe his residency. Court staff instructed the juror to address this matter with the judge (which he apparently failed to do).

From aught that appears from the record, neither the parties nor the judge were aware of any problem with Juror No. 127's residency either before or during the trial. The problem came to light only on the final day of the trial (after the jury had returned its verdict and been discharged).¹ When the appellant's counsel reviewed the court's memorandum and belatedly perused Juror No. 127's supplemental questionnaire, he concluded that Juror No. 127 was, in fact, not a resident of New Hampshire at the time of the trial. Rather, Juror No. 127 was a New Hampshire native who had been residing for over a year in neighboring Massachusetts.

Based on this anomaly, the appellant moved for a new trial. See Fed. R. Crim. P. 33. The government opposed the motion, and the district court conducted an evidentiary hearing. The court reserved decision and thereafter, in a thoughtful rescript, denied the appellant's motion. See United States v. Gonzalez, No. 16-cr-162-12-PB, 2018 WL 1936473 (D.N.H. Apr. 24, 2018).

In due course, the district court received the presentence investigation report (the PSI Report). When chronicling the appellant's criminal record and calculating his criminal history score, the PSI Report included the appellant's 1997 New Hampshire conviction for possession of a narcotic drug with intent to sell. The appellant did not object to the inclusion of the 1997 New Hampshire drug conviction in his criminal history, and, predicated on that conviction and the Information previously filed by the government, the PSI Report concluded that the appellant was subject to a twenty-year mandatory minimum recidivist term of immurement. At the disposition hearing, the district court accepted this conclusion and imposed a twenty-year sentence. This timely appeal followed.

II. ANALYSIS

The centerpiece of the appellant's asseverational array is his claim that his conviction and sentence must be vacated because the jury that convicted him included a nonresident. The appellant's remaining claims of error are focused on his sentence. We first address his "nonresident juror" claim and then confront his various sentence-related challenges.

A. The Nonresident Juror Claim .

The appellant asserts that he is entitled to a new trial because one of the seated jurors was not a New Hampshire resident. This assertion rests on both the Jury Selection and Service Act (JSSA), see 28 U.S.C. § 1865(b)(1), and the Sixth Amendment. The district court denied the appellant's motion for a new trial, rejecting both his statutory and constitutional arguments. In the court's view, the appellant advanced his claim too late and, in all events, could not show any prejudice flowing from the nonresident juror's participation in the trial.

Federal Rule of Criminal Procedure 33 permits a district court to "vacate any judgment and grant a new trial if the interest of justice so requires." We review a denial of a motion for a new trial for abuse of discretion. See United States v. Connolly, 504 F.3d 206, 211 (1st Cir. 2007). Where, as here, the judge who hears the motion for a new trial is the same judge who presided over the trial, substantial deference is due to the judge's perceptions. See id.; United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991). Of course, a material error of law is always an abuse of discretion. See Connolly, 504 F.3d at 211.

The JSSA premises eligibility for jury service on, among other things, residency for at least one year in the judicial district in which the trial is to be held. See 28 U.S.C. § 1865(b)(1). In this case, though, it is undisputed that Juror No. 127 was not a New Hampshire resident at the time of the trial and, therefore, was not then eligible for jury service in the District of New Hampshire. Even so, the JSSA requires a defendant to raise any residency issue "before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered" such issue, "by the exercise of diligence ... whichever is earlier." Id. § 1867(a); see United States v. Uribe, 890 F.2d 554, 561 (1st Cir. 1989). This timing requirement serves an eminently practical purpose: when an objection to a juror's lack of the required residency is made on a timely basis, the court can rectify the situation by the simple expedient of replacing the ineligible juror with an eligible juror. See United States v. Novod, 923 F.2d 970, 978 (2d Cir.), aff'd in part, rev'd in part on reh'g on other grounds, 927 F.2d 726 (2d Cir. 1991) ; cf. United States v. Gale, 109 U.S. 65, 69-70, 3 S.Ct. 1, 27 L.Ed. 857 (1883) (explaining that when objection regarding juror ineligibility is made timely, "the irregularity might be corrected by reforming the panel").

In this instance, the appellant had available to him — before voir dire — Juror No. 127's supplemental questionnaire. This document clearly indicated that Juror No. 127 was not a New Hampshire resident. But the appellant's counsel neglected to review this form, relying instead on a summary jury selection list that set forth "City & State" for each prospective juror (information extracted from the prospective jurors' self-reported permanent addresses on other forms). Juror No. 127 had reported that his permanent address was in Derry, New Hampshire, so that city and state appeared opposite his name on the jury selection list. And even though the supplemental questionnaire made it plain that Juror No. 127 had been a resident of Massachusetts for at least fifteen months prior to jury empanelment, the appellant's counsel did not object when Juror No. 127 was seated on the jury. It was not until after the verdict was returned that the appellant mounted a residency-based challenge. That was too late, see 28 U.S.C. § 1867(a), and the district court determined that the appellant's challenge was unavailing.

We discern no abuse of discretion. Before voir dire commenced, the appellant's counsel easily could have discovered, through the exercise of due diligence, that Juror No. 127 was not a New Hampshire resident.² All that he had to do was review the completed questionnaire that had been given to him. A party who chooses not to read a document in his possession scarcely can be heard to complain that he was unaware of the contents of the document. See id. (charging defendant with notice of defect when he "could have discovered" it "by the exercise of diligence"); Uribe, 890 F.2d at 561 (finding waiver when basis for objection could have been...