USA. Henley

• Decision Date: 07 February 2001
• Docket Number: Nos. 96-50697,s. 96-50697
• Citation: 238 F.3d 1111
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. REX HENLEY, RAFAEL BUSTAMANTE, WILLIE MCGOWAN, and GAREY WEST, Defendants-Appellants. 97-50015 97-50020 97-50060
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1111

238 F.3d 1111 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. REX HENLEY, RAFAEL BUSTAMANTE, WILLIE MCGOWAN, and GAREY WEST, Defendants-Appellants.

Nos. 96-50697 97-50015 97-50020 97-50060

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 5, 2000

Filed February 7, 2001

Karen L. Landau, Oakland, California, Carol A. Klauschie, Pasadena California, Gail Ivens, Glendale, California, and Mary Ellen Lewis, San Luis Obispo, California, for the defendants-appellants.

John C. Rayburn, Jr., Assistant United States Attorney, and Nancy Spiegel, Assistant United States Attorney, Santa Ana, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California Gary L. Taylor, District Judge, Presiding. D.C. No. CR-93-00130-GLT

Before: Warren J. Ferguson, Robert Boochever, and Stephen Reinhardt, Circuit Judges.

REINHARDT, Circuit Judge:

Rex Henley, Rafael Bustamante, Willie McGowan, and Garey West appeal their convictions for conspiracy to possess and distribute twelve kilograms of cocaine, in violation of 21 U.S.C. 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). They also appeal the denial of their motion for a new trial based on allegations of juror bias and tampering. We remand to the district court for further proceedings regarding the new trial motion. We reject appellants' other grounds for appeal in a memorandum disposition filed concurrently with this opinion.

I. Background

On June 23, 1994, a federal grand jury returned an indictment charging all four appellants, as well as Darryl Henley, Tracy Donaho, and Alejandro Cuevas, with conspiracy to distribute cocaine and possession with intent to distribute cocaine.¹ The underlying conspiracy revolved around Darryl Henley, a professional football player for the Los Angeles Rams² and the nephew of appellant Rex Henley. Appellant Bustamante supplied cocaine to Darryl Henley who, with the assistance of appellants West and McGowan, sought to distribute it in Memphis and Atlanta. Appellant Rex Henley helped prepare and conceal cocaine for transport and accompanied the couriers on some trips. Tracy Donaho, a Rams cheerleader who was romantically involved with Darryl Henley, served as a drug courier.

On July 15, 1993, Donaho was arrested at the Atlanta International Airport after agents from the Drug Enforcement Agency ("DEA") discovered twelve kilograms of cocaine in her bag. Soon thereafter, she agreed to cooperate with the DEA's investigation. At the subsequent trial, she provided testimony against all of the defendants.

On March 28, 1995, the appellants, along with Darryl Henley, were convicted on every count. One month later, juror Bryan Quihuis contacted the court and reported that he had been the subject of a bribery attempt orchestrated by Darryl Henley and former juror Michael Malachowski. The parties were notified of the allegation and, on May 8, 1995, the appellants joined in a motion for a new trial, claiming that juror misconduct had deprived them of a fair trial. During several months of subsequent investigation, the following information came to light:

Former juror Michael Malachowski, who had been excused from the jury during trial for reasons unrelated to the misconduct at issue here, paid an unsolicited visit to the home of Darryl and Rex Henley on March 20, 1995, while the trial was still in progress. He told the Henleys that they should contact him in the event that they were convicted, because he had information that might entitle them to a new trial. Specifically, Malachowski informed the Henleys that he had car pooled with two other jurors, Bryan Quihuis and Sean O'Reilly, and that the three jurors had discussed the evidence in violation of the court's instructions.

The following day, Darryl Henley contacted Malachowski and asked whether Malachoswki knew any sitting juror who might be willing to vote not guilty on the charges against both of the Henleys.³ Malachowski informed Henley that juror Quihuis had confessed to using methamphetamine on the weekends and that juror O'Reilly had made racist remarks. Henley instructed Malachowski to approach Quihuis and to "do anything it takes" to secure a not guilty vote. In exchange, Henley promised Malachowski a job with the Rams.

On the evening of March 21, Malachowski visited Bryan Quihuis at his home and asked Quihuis what he would want as payment for a not guilty vote. Quihuis professed shock and searched Malachowski for a recording device; only then did the two discuss money, settling conditionally on a figure of $25,000 to $50,000. Quihuis insisted on speaking directly to Henley. Malachowski and Quihuis then drove to a pay phone and placed a call to the Ram football player. Quihuis and Henley discussed the bribe, and Quihuis indicated that he wished to be paid half the money in advance.

Quihuis told Malachowski that he had tentatively decided to accept Henley's offer, but that he would like to consider the matter further and would contact Malachowski with his final answer. Quihuis had second thoughts soon thereafter. He called Malachowski later that night and informed him that he would not participate in the scheme.

Over the course of the next few days, as the jury entered deliberations, numerous efforts were made to persuade Quihuis to reconsider. Several phone calls were placed from Henley's cellular phone to Quihuis, but the two apparently did not speak again. Malachowski made frequent phone calls to Quihuis and even drove to Quihuis's home in an attempt to speak to him; Quihuis ultimately instructed his parents to tell Malachowski that he wasn't home. On Friday, March 24, two days after deliberations began, Quihuis informed the trial judge that he had seen a newspaper article about the case and had learned that Henley was facing a possible life sentence if convicted. Quihuis reported that the article had made a "big impact" on him and that he had had difficulty sleeping. After questioning Quihuis, the court determined that he need not be disqualified on account of his exposure to the article.

On Monday, March 27 -the day before the jury returned its verdicts -Malachowski spoke to Quihuis and relayed Henley's concern that Quihuis was attempting to get himself excused from the jury. Malachowski made clear that Henley would pay $50,000 for a vote of not guilty. Quihuis once again declined the offer. The jury returned guilty verdicts against the defendants the next day.

Following the convictions, Malachowski provided a deposition to Rex Henley's counsel in which he swore -falsely, it seems -that Quihuis, not Malachowski, had initiated the bribery scheme and that Quihuis had attempted to extort money from Henley in exchange for a not guilty vote. Malachowski also alleged that juror Sean O'Reilly had made several racist remarks while car pooling to and from the trial, including the statement "All the niggers should hang." Finally, Malachowski reported that Quihuis had used drugs during the trial and that Malachowski, Quihuis, and O'Reilly had engaged in premature deliberations by discussing the evidence prior to the jury's deliberations.

After the allegations of misconduct had come to light, and after several months of investigation by the FBI, the district court conducted evidentiary hearings on the motions for a new trial. Malachowski and O'Reilly testified at the hearings, but Quihuis asserted his Fifth Amendment privilege against self-incrimination and refused to testify. The parties stipulated, however, that the transcripts of Quihuis's conversations with the court clerk, the FBI, and a defense investigator would be admitted into evidence.

The evidence pertaining to O'Reilly's alleged racist remarks was contradictory. Malachowski testified that he had embellished O'Reilly's statements and that, although O'Reilly had indeed used the word "nigger," he had not used it in reference to any of the defendants on trial. O'Reilly denied having made any racist statements and claimed to have dated an African-American woman in the past and to have be friended an African-American juror during the trial. Quihuis, however, provided a different account in his interviews with the FBI and the defense investigator. One of the FBI's reports recounts Quihuis's acknowledgment that at some point during the trial, "while either carpooling to or from the trial, O'Reilly stated, `The niggers are guilty,' or `Niggers are guilty.' " According to the report, Quihuis was unsure whether O'Reilly was referring to the defendants or to African-Americans in general. When asked by the defense investigator whether O'Reilly was likely to have been lying when he denied being racially biased in his juror questionnaire, Quihuis responded, "I would imagine so."

On August 29, 1996, the district court denied the motion for a new trial in a written order. The court held that the allegations of impropriety during trial -including the allegations of O'Reilly's racial prejudice -could not entitle the appellants to a new trial because Federal Rule of Evidence 606(b) barred virtually all juror testimony offered to impeach a jury's verdict.⁴ The court considered the allegations of O'Reilly's racial bias solely to the extent that they might reveal untruthful answers during voir dire. The court observed that prospective jurors were asked three race-related questions in their questionnaires: what their overall views were of interracial dating, whether they had ever had a bad experience with a person of a different race, and whether race would influence their decisions in any way.⁵ Without making any specific findings about the contents of O'Reilly's alleged racist remarks, the court stated: "[T]he court does not find that juror O'Reilly failed to answer honestly."

In considering the implications of the attempted bribe of Quihuis, the court acknowledged that such tampering with a...