USA v. Gonzalez

• Decision Date: 14 March 2000
• Docket Number: No. 97-10520,97-10520
• Citation: USA v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000)
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee v. JULIO GONZALEZ, Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1109

214 F.3d 1109 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JULIO GONZALEZ, Defendant-Appellant.

No. 97-10520

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 14, 2000--San Francisco, California

Filed June 15, 2000

Stephen Corrigan, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.

Amitai Schwartz, Berkeley, California, for the defendant-appellant.

Appeal from the United States District Court for the Northern District of California; Charles A. Legge, District Judge, Presiding.D.C. No. CR-94-00333-2-CAL

Before: Henry A. Politz,¹Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Julio Gonzalez appeals from his conviction and sentence imposed for conspiracy, cocaine distribution, and money laundering.On appeal, Gonzalez raises four principal issues.He contends that the district court erred by: 1) overruling his challenge for cause to a juror; 2) barring him from presenting evidence going to a defense of duress and refusing to instruct the jury on duress; 3) deciding a material element of the money laundering scheme as a matter of law--namely, whether a federally run sting operation qualifies as a financial institution for purposes of the money laundering counts; and 4) admitting the testimony of an accomplice who testified in exchange for government leniency.While we find the second and third issues troubling, we reverse on the basis of the first.

FACTUAL BACKGROUND

At the time of the events in question, Julio Gonzalez was 48 years old, with a wife and young child.He operated a neighborhood travel agency in San Francisco's Mission District and worked as a Spanish language radio announcer for the San Francisco Giants.Several character witnesses testified at trial that they never knew Gonzalez to use drugs or to act dishonestly.Gonzalez was accused of conspiracy to distribute cocaine, cocaine distribution, and money laundering in violation of 21 U.S.C.A. S 841, 846, and 18 U.S.C.A. S 1956.

During jury selection, the district court asked the prospective jurors whether they or anyone to whom they were close had any experience with illegal drugs.Among those who responded affirmatively was juror Camacho, who subsequently told the court that her ex-husband, the father of her five year old daughter, had both used and dealt cocaine during their marriage.His involvement in drug trafficking was, she testified, one of the reasons for their divorce approximately four years earlier.Upon questioning by the court, Camacho admitted that the experience was a painful one.At that point, apparently concerned by her answers, the district judge asked her three times whether she could put her personal experience aside and serve impartially.Each time, she responded equivocally:

The Court: Do you think you can put that aside and view Mr. Gonzalez fairly, and view the government's case fairly?

Camacho: I will try to.

The Court: Okay.Well, any--any doubt in your mind about that?I mean, that's- that's pretty -a case of drugs being pretty close and touching your life.But again you're not being asked to rehash those problems, you're not being asked to decide whether drugs are good or bad.You're just going to hear evidence as to whether Mr. Gon zalez did or did not deal with drugs.

Camacho: Right.I'll try.

The Court: Do you think you can do that fairly?

Camacho: I'll try.

Camacho never stated affirmatively that she could put aside her personal experiences, nor did she ever state that she could be fair or impartial.²

At sidebar, Gonzalez's counsel moved to have Camacho excused for cause, noting, in addition to her equivocal responses and the emotionally fraught issue of her exhusband's drug problem and activities, what he termed "negative body language" when he asked the pool as a whole whether anyone would have a problem following the reasonable doubt or entrapment instructions.Although the district court conceded that Camacho's answers were "a bit equivocal," it denied counsel's motion, holding that counsel's observations about her demeanor coupled with her responses were "not enough to excuse her."Originally an alternate, Camacho became a member of the regular panel over the defense's objection after another juror was excused.

Gonzalez was found guilty on all counts by the jury and was sentenced to ten years in prison and five years of supervised release.This appeal followed.

ANALYSIS

The Sixth Amendment guarantees criminal defendants a verdict by an impartial jury.Dyer v. Calderon , 151 F.3d 970, 973(9th Cir.1998).The bias or prejudice of even a single juror is enough to violate that guarantee.Id.Accordingly, "[t]he presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice."Dyer, 151 F.3d at 973, n.2;see alsoUnited States v. MartinezSalazar, 120 S.Ct. 774, 782(Jan. 19, 2000)("Nor did the district court's ruling result in the seating of any juror who should have been dismissed for cause.As we have recognized, that circumstance would require reversal.").

Challenges for cause are the means by which partial or biased jurors should be eliminated.To disqualify a juror for cause requires a showing of either actual or implied bias-"that is . . . bias in fact or bias conclusively presumed as a matter of law."47 Am.Jur.2d Jury S 266 (1995).Although "[b]ias can be revealed by a juror's express admission of that fact, . . . more frequently, jurors are reluctant to admit actual bias, and the reality of their biased attitudes must be revealed by circumstantial evidence."³United States v. Allsup, 566 F.2d 68, 71(9th Cir.1977).Because determinations of impartiality may be based in large part upon demeanor, this court typically accords deference to the district court's determinations, and reviews a court's findings regarding actual juror bias "for manifest error" or abuse of discretion.SeeUnited States v. Alexander, 48 F.3d 1477, 1484(9th Cir.1995).In contrast, implied bias presents a mixed question of law and fact which is reviewable de novo.Dyer, 151 F.3d at 979.

In essence, "[a]ctual bias is `bias in fact'--the existence of a state of mind that leads to an inference that the person will not act with entire impartiality."United States v. Torres, 128 F.3d 38, 43(2nd Cir.1997).Accordingly, courts have found actual bias where, based upon personal experience, a potential juror stated he could not be impartial when evaluating a drug dealer's testimony, Torres, 128 F.3d at 44, where a juror in a case involving embezzlement from a labor union emphasized his negative experiences with unions and responded equivocally when asked if he could render a fair and impartial verdict despite those views, United States v. Nell, 526 F.2d 1223, 1228-29(5th Cir.1976), and where a juror in a drug distribution case admitted to a conviction for marijuana possession, but stated that he believed it to have been the product of entrapment, United States v. GonzalezBalderas, 11 F.3d 1218, 1222(5th Cir.1994).

Although actual bias is the more common ground for excusing jurors for cause, "[i]n extraordinary cases, courts may presume bias based upon the circumstances."Dyer, 151 F.3d at 981;see alsoSmith v. Phillips, 455 U.S. 209, 222(1981)(O'Connor, J., concurring)."Unlike the inquiry for actual bias, in which we examine the juror's answers on voir dire for evidence that she was in fact partial,`the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.' "United States v. Cerrato-Reyes, 176 F.3d 1253, 1260(10th Cir.1999)(quotingTorres, 128 F.3d at 45).Accordingly, we have held that prejudice is to be presumed " `where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.' "SeeTinsley v. Borg, 895 F.2d 520, 527(9th Cir.1990)(quotingPerson v. Miller, 854 F.2d 656, 664(4th Cir.1988)).We have also stated that the relevant question "is whether `[the] case present[s] a relationship in which the `potential for substantial emotional involvement, adversely affecting impartiality,' is inherent.' "United States v. Plache, 913 F.2d 1375, 1377(9th Cir.1990)(quotingTinsley, 895 F.2d at 527).

Applying this standard, we have found implied bias in cases where the juror in question has had some personal experience that is similar or identical to the fact pattern at issue in the trial or where the juror is aware of highly prejudicial information about the defendant.SeeTinsley, 895 F.2d at 527 -529(cataloguing cases in which implied bias has been found).For example, in United States v. Eubanks , 591 F.2d 513, 517(9th Cir.1979), this court found implied bias where the sons of a juror in a heroin distribution case were themselves heroin users and had served lengthy prison sentences.Similarly, in Dyer, we found implied bias where the brother of a juror in a murder case had been murdered and the juror did not reveal this fact on voir dire because she did not believe it to be relevant.⁴Dyer, 151 F.3d at 981-82.We also take note of recent precedent from other Circuits.In Hunley v. Godinez, 975 F.2d 316, 319-20(7th Cir.1992), the Seventh Circuit found implied bias in a trial for murder and burglary when the hotel rooms of the deliberating jurors were broken into.The Seventh Circuit based its conclusion on the assumption that the recent burglary would make the jurors incapable of fairly deliberating in a case in which the murder was committed in connection with a burglary.Similarly, in Burton v. Johnson, 948 F.2d 1150, 1159(10th Cir.1991), the Tenth Circuit found implied bias in a case in which both the juror and the defendant had been involved in abusive...